New legal brief finds HS2 Ltd. is permitted to excluded CAF from building UK’s high speed railway

Published on Wed Feb 03 2021 - modified on Fri Mar 12 2021

A new legal brief produced jointly by the European Legal Support Center and Lawyers for Palestinian Human Rights has found that it is legal for HS2 Ltd. – the company building the UK’s new high speed railway HS2 – to exclude from its procurement process companies which are complicit in ongoing breaches of international law, such as Spanish construction company Construcciones y Auxiliar de Ferrocarriles (CAF).

CAF is currently leading the expansion of the Jerusalem Light Railway (JLR) which gathers together expanding Jewish-only settlements in and around occupied East Jerusalem, and connects them with West Jerusalem. Every illegal Israeli settlement, built on land stolen from the Palestinian people, is considered a war crime under the Fourth Geneva Convention. The British government has repeatedly affirmed this position, with the Foreign and Commonwealth Office writing in November 2019 “[T]he position of the UK on settlements is clear. They are illegal under international law.”

When initially asked by over 2,000 supporters of human rights to exclude CAF from the bid to provide rolling stock for HS2 last year, the Minister responsible for the project, Andrew Stephenson MP, responded that it would “be inappropriate for the Department to intervene.”

However, this new report demonstrates that “HS2 Ltd. is legally entitled to and should take all necessary steps to exclude CAF from the tender procedure on the ground of ‘grave professional misconduct’, due to its clearly apparent involvement in business activities that directly maintain and facilitate violations of international humanitarian law and human rights in the Palestinian Territory occupied by Israel since 1967, in particular in occupied East Jerusalem.”

According to the report, the exclusion of CAF, and any company involved in ongoing breaches of international law, would be consistent with international legal obligations requiring all public authorities – including contracting authorities as HS2 Ltd. – to respect, protect and fulfill human rights and humanitarian standards, including by avoiding economic relations with companies that directly maintain and facilitate human rights and humanitarian violations.

More broadly, the report demonstrates that all public contracting authorities should apply the ground of exclusion for “grave professional misconduct” contained in Article 57(8)(c) of the Public Contracts Regulation 2015, where companies are involved in ongoing breaches of international law. In the case of HS2, these findings can be applied to any company involved in the bidding process that is complicit in Israel’s settlement of Palestinian land.

Ben Jamal, Director of Palestine Solidarity Campaign said:

All public contract authorities must discharge their responsibilities to cease complicity in ongoing violations of international law. This means HS2 Ltd must exclude CAF, and any other company violating Palestinian human rights, from the bid to provide rolling stock.

Giovanni Fassina, Programme Director of the European Legal Support Center said:

Companies that are involved in war crimes should have no standing in public tenders. CAF chooses to put profit before humanity in facilitating the ongoing violations of Palestinian human rights. HS2 Ltd. has the legal right and a moral obligation to exclude CAF from the tender procedure.

Morning Star, Bethany Rielly, Pressure mounts on HS2 to drop train firm ‘involved in Israeli war crimes’ from bidders list, 4 February 2021

Middle East Monitor, Refuse bids from those ‘involved in Israeli war crimes’, legal groups tell UK rail construction company, 5 February 2021

Electronic Intifada, Adri Nieuwhof, UK must bar settlement profiteer from work on high-speed rail line, 9 February 2021 [Translated into Spanish & Italian]

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