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Down the Slippery Slope: HCJ 2164/09 Yesh Din v. IDF Commander in the West Bank (Judgment of December 26, 2011)
Court Watch | 2164/09 | 1.10.2012 | Adv. Clara Ungar
The Natuf quarry in the West Bank, between the villages Qibyah and Shebtin. Photo: Who Profits
Criticism
In 1930, at the age of 61, Mahatma Gandhi led the famed Salt March. Gandhi walked for about 400 kilometers towards the Indian Ocean shore in order to produce salt using his own hands and a small cooking pot. He did this to protest the British monopoly on the manufacture of salt and the restrictions that prohibited Indians from making salt and forced them to buy it from the British Empire. Gandhi demanded Indians regain control over the subcontinent’s natural resources. To do so, he chose an effective symbol, one ordinary people could relate to, a symbol as simple as salt.

Direct profits made by Israeli corporations and the revenue the state generates from mining in the OPT should worry anyone who is concerned about the rule of law, human rights and the future

We are not suggesting historic parallels be drawn between the crumbling colonial rule of the 1930s and the West Bank. The two are very different, and it is rare that history repeats itself, but still, similarities do exist, particularly the fact that one people has control over another's natural resources and means of production and the financial benefits that come with this control. The financial interests behind a forty-year-old occupation run deep. The quarry case offers us a glimpse into one branch of the economy of the occupation – a multimillion mining industry run by Israeli quarry owners in the West Bank. In this case, as with the salt, the resource is symbolic: it is the West Bank itself that is pounded into gravel and pebbles and transferred beyond the Green Line, to our homes and roads.

Since “money makes the world go around”, the direct profits made by Israeli corporations and the revenue the state generates from mining in the occupied territories should worry anyone who is concerned about the rule of law, human rights and the future.

This commentary will not focus on the opinion submitted to the High Court of Justice (HCJ), after it gave its ruling; an opinion written by the foremost experts on international law in the country in support of a motion for a further hearing; an opinion that states that the HCJ had expanded the provisions of international law in an unprecedented manner and departed from its own jurisprudence.[1]

This commentary will not address the State Comptroller’s 56A Report of 2005, which describes how the custodian of abandoned government property had failed to collect 4.5 million ILS in land-user fees from quarry owners in the West Bank. In this commentary we will not ask why quarry owners prefer to operate in the West Bank rather than inside the Green Line in these (and other) circumstances.[2]

This commentary focuses solely on the judgment because one need not go any further to see that the legal construct on which it is founded is unsound. The HCJ comes across as attempting to walk on eggshells even as the eggs are shattering under its feet.


A Few Facts
The HCJ was asked by Yesh Din, an Israeli NGO, to issue an order for the cessation of all quarrying activities in Israeli-owned quarries in the West Bank and for a moratorium on licensing and land allocation proceedings for new quarries, arguing that these practices contravened Israeli and international law.

According to the judgment given in the petition, eight Israeli-owned quarries operate in Area C. These quarries are located on state land and had undergone licensing and planning procedures. In addition, Palestinian quarries operate in Areas A and B. These quarries transport about 80% of their output into Israel, beyond the Green Line. The Israeli quarries employ approximately 200 Palestinians. According to figures provided by the Civil Administration itself, 94% of the output of the Israeli quarries is transported to Israel and the rest (6%) to the OPT, including to settlements. The Civil Administration collects leasing fees and royalties from the Israeli-owned quarries. In 2009, revenue from royalties alone reached 25 million ILS, a large sum of money by any account. And so, the HCJ was asked to intervene in an industry which is largely owned by Israelis, an industry that makes millions of ILS, with most of the money going into Israel, an industry that even generates revenue for the Civil Administration.

The HCJ dismissed the petition as well as the petitioners’ motion for a further hearing.


“Staff Work”
As often occurs after an HCJ petition is filed, the hearing was delayed for many months at the State’s request in order to allow the Civil Administration and other agencies to conduct staff work on the legal ramifications of operating Israeli quarries in the West Bank. We take note of the State’s notice to the HCJ upon completion of the staff work:

First, separate records will be kept of the total revenue generated by the Civil Administration from leasing fees and royalties (as recalled, these amount to millions of ILS a year), in order for the revenue to be transferred to the residents of the Area. The most fascinating point here is that until the petition was filed, no such records had been kept, meaning the Civil Administration did not know how much money had been generated from the quarries over decades, and, obviously, did not transfer this money to its true beneficiaries under international law – the Palestinian residents of the Area (more on this will follow).

The Civil Administration recommended the government refrain from approving land allocations for new quarries, rehabilitate abandoned quarries and raise the fees collected for the Area’s treasury from the sale of quarried substances to Israel. These were recommendations only, and it is hoped that they will be implemented, but what these recommendations indicate most of all, is that the state itself considers approving new quarries legally problematic. The fee increase for the local treasury is nothing more than acknowledgment of the Gordian knot in this case – a quarry under private Israeli ownership trades in the natural resources of the occupied territory, with Israel benefitting from the royalties.

Tactically, by recommending the cessation of land allocations for new quarries, the State removed the main stumbling block for the HCJ. This was the first step towards obtaining the first remedy sought in the petition. At first glance, this should be welcomed, but a closer look reveals that this is what paved the way for the HCJ to reject the remaining remedies more readily. It is much easier to stop something before it begins than to face the old quarries and the immense scale of quarrying of Palestinian substances which has been going on at full steam since the 1970s.


A Political Issue – Or Is It?
The HCJ dismissed the petition, relying heavily on the fact that the issue of the quarries was discussed in the negotiations leading up to the interim agreement signed by Israel and the Palestinians in 1995. According to Honorable Justice Beinisch, the issue has strong political aspects, of the sort in which the HCJ does not intervene. However, an accidental reader of this judgment would never know from reading it that the ink on the interim agreement has long since dried, that the interim period that was to lead up to the permanent settlement ended in 1999, that reality has changed beyond recognition in all aspects of Palestinian life. The temporary has become permanent. The occupation has become more deeply entrenched and it encompasses countless aspects of day-to-day life, matters that are routinely brought before the HCJ. Can the HCJ refrain from reviewing a violation of international law only because the issue was raised in the negotiations for an agreement? By refraining from addressing it, the HCJ absolves itself of the duty to hear a case involving a severe and ongoing injury caused to the local population and to the rule of law. Worse still, it aids in perpetuating the ongoing “interim” state of affairs and the ever deepening plunder of West Bank land.


43 + 55 = ?
Military occupation and economic exploitation of occupied lands are as old as history. In some periods during the history of the human race, they determined how empires shifted and how maps were drawn. In the modern era, international law sets forth rules and principles with the aim of ensuring that occupied territories do not fall victim to economic exploitation, that regimes of occupation are as short-lived as possible and restricted to the minimum necessary and that the civilian populations of occupied territories are protected.

The quarry case sees the HCJ stretching the principles of the relevant legal system in order to make them fit a reality that has long since outgrown them.

Article 55 of the Hague Regulations gives the occupying power restricted permission to administer property belonging to the enemy state, reap its benefits and use the area as a trustee.[3] It is widely accepted that the Article does not allow selling the property or using it in a manner that depletes or eliminates it. In this context, it is common to distinguish between the “tree”, which the occupying power must preserve and its “fruits”, which it may use for a limited time – until the occupation ends. To illustrate – it is permitted to have possession of a public building and collect rent, reap wheat in the fields, etc.

How can mining non-renewable materials be regarded as using the “fruits”?

Can the HCJ refrain from reviewing a violation of international law only because the issue was raised in the negotiations for an agreement?

Throughout the judgment, the HCJ refers to figures presented by the State which show that Israeli quarries are responsible for quarrying a miniscule percentage of the substances available in the West Bank. This claim resurfaces throughout the judgment, but the court is simply confusing quantity with quality. The wealth of quarrying substances in the West Bank does not change the fact that these are non-renewable materials. The fact that there are many trees in the forest and that many will be left after felling does not change the fact that a tree was cut down rather than its fruits picked.

The petitioner claimed that even if quarries may operate in an occupied territory, permission is given for reasonable use of quarries that predated the occupation, with the rationale being the preservation of the economic infrastructure of the occupied territory. This is obviously not the case here, as the quarries were all built after the occupation began. In the 1970s, the state argued that mining was permitted so long as the substances were not used in a wasteful manner. The HCJ accepted the extremely cynical argument made by the State that in light of the lengthy duration of the occupation, Article 55 must be interpreted broadly, in a manner that would not lead to an economic standstill and the collapse of the local economy. The tables have turned: the article that was meant to prevent the irreversible exploitation of the area is used as a justification for economically exploiting it for the benefit of the occupier. In other words, Israeli corporations built the quarries. They trade in their output, mostly with Israel, and as a byproduct, provide jobs for about 200 Palestinians. Can this be a justification for “relaxing” the provisions of international law?

Throughout the judgment, the HCJ refers to a number of scholars purported to support mining, but a closer look at the quotes shows that none of them talks about building quarries after the occupation begins under licenses from the occupying power.[4]

Article 43 of the Hague Regulations is accepted in Israeli jurisprudence as providing the framework for the actions of the military commander in an area held under belligerent occupation. In 1982, in Jam'iat Iscan Al-Ma’almoun, the court held that: “The military commander may not weigh the national, economic and social interests of his own country, insofar as they do not affect his security interest in the Area or the interest of the local population”.[5] It follows that the only permissible considerations are those relating to the welfare of the protected population on the one hand, and military considerations on the other. The Jam'iat Iscan Al-Ma’almoun judgment expressly stresses that: “A territory held under belligerent occupation is not an open field for economic or other exploitation”.[6]

How can these provisions be reconciled with the activity in the Israeli quarries built after the occupation of the area, which mainly serve the construction and road-building sectors inside Israel?

The court once again rejects what it considers the petitioners’ restrictive interpretation of international law, again stretching a blanket that has long since been torn, in yet another direction:

[T]he belligerent occupation of Israel in the Area has unique characteristics, primarily the duration of the occupation period that requires the adjustment of the laws to the reality on the ground, which imposes a duty upon Israel to ensure normal life for a period, which even if deemed temporary from a legal perspective, is certainly long-term. Therefore, the traditional occupation laws require adjustment to the prolonged duration of the occupation, to the continuity of normal life in the Area and to the sustainability of economic relations between the two authorities – the occupier and the occupied [...].[7]

Yet, the economic relations the HCJ alludes to are the relations between a slave and his master, a captor and his captive. The near sole beneficiaries of these relations are Israeli private corporations. Now that the State has announced that it would keep separate records of the revenue generated from the quarries (after decades of not doing so), the military government might throw a few crumbs to the local population. The HCJ goes on to say: “[T]he State's interpretation of the manner in which it exercises its powers in accordance with Article 55 is reasonable and involves adjusting the laws of occupation to the reality of prolonged occupation”.[8] To put it in simpler terms, if reality cannot be altered; if reality exceeds what international law permits, rather than changing reality we shall expand the interpretation of international law (beyond recognition).

Using a cynical interpretation, like that given to the previous article, the HCJ takes another step and notes that it is, in fact, the cessation of the activities of the quarries that would be a breach of the military government’s obligations toward the residents, since:

[T]he quarries currently operating provide livelihood for a considerable number of Palestinian residents […] their operation contributes to the Area’s economic development and modernization […] a significant percentage of their quarrying output is marketed to both Palestinians and Israeli settlers within the Area […].[9]

As mentioned, this “significant portion” is a mere 6%, much of which is designated for Israeli settlers. The math is not complicated, it is quite clear just how little of the output benefits the West Bank.

According to the HCJ, “it is therefore difficult to accept the Petitioner's decisive assertion, according to which the quarrying operations in no way promote the best interests of the Area, especially in light of the shared economic interests of the Israeli and Palestinian parties and the prolonged period of occupation”.[10] Thus, Articles 43 and 55 expand to contain the reality in which Israeli quarries were built on occupied land in order to serve the interests of the occupier. In the interim, the economic dependency that has naturally developed turns into “shared economic interests”; as if at issue were two European countries trading with one another rather than one country controlling the resources of the other in breach of international law, and some might say, against its own long-term interests.


Adv. Clara Unger
The author is a lawyer, formerly on staff at the State Attorney's Office. She is currently a licensed tour guide and blogger.


[1] 
[2] 
See State Comptroller of Israel, Annual Report 56A, 2005 (in Hebrew).
[3] 
[4] 
See above note 1 for details and in-depth legal analysis.
[5] 
HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area (1983), judgment of December 28, 1983, para. 13; and see commentary on this judgment.
[6] 
Ibid.
[7] 
HCJ 2164/09 Yesh Din v. Commander of the IDF Forces in the West Bank (2011), judgment of December 26, 2011, para. 10.
[8] 
Ibid.
[9] 
Ibid., para. 13.
[10] 
Ibid.
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