The resources of an occupied territory are supposed to be used to benefit the local population, unless they are needed for an urgent military purpose. However, in a judgment given on 26 December 2011, Israel's High Court of Justice established a new rule enabling the state and private Israeli enterprises to loot quarries in the West Bank. The decision completely contradicts international law and principles that have guided High Court rulings in the last thirty years. There is cause for great concern that the ruling will enable Israel to address the West Bank and its resources as annexed to the state, without taking the human rights of Palestinians into account.
The court’s opinion, written by Supreme Court President Dorit Beinisch and joined by justices Miriam Na’or and Esther Hayut, was given in a petition filed by Yesh Din in March 2009 against Israeli entities operating quarries in Area C in the West Bank. On 10 January 2012, Yesh Din filed an application for rehearing, before an expanded panel, on the new rule that the judgment established.
"Assuming no political changes will occur"
Israeli quarry operations in the West Bank began in the mid-1970s. According Civil Administration figures, there are now ten Israeli-owned quarries in Area C, eight of them active. All the quarries are in what Israel has declared "state land". According to the state’s estimates, these quarries produce some 12 million tons of mined material a year, 94 percent of which is taken to Israel. The excavated product accounts for one-quarter of Israel’s consumption of mined material.
In 2008, the national outline plan for mining and excavation sites for the construction and paving market, prepared by the Israeli Ministry of the Interior, relied on the assumption that these quarries would continue to supply Israel with material for the coming 30 years, “assuming no political changes will occur in the borders of Area C.” In 2009, the quarry owners paid the Civil Administration royalties of 25 million shekels.
High Court in 1983: occupied area not "open field for economic exploitation"
In its petition, Yesh Din argued that operation of the quarries contravened international law. Super-principles of the international law of occupation, enshrined in sections 43 and 55 of the Hague Regulations, forbid the occupying state to use the natural resources in the occupied territory for its own economic purposes. The occupying state may only use the fruits of these resources for the benefit of the local population or for its imperative military needs.
In the petition, Yesh Din cited a principled decision given by the High Court of Justice in 1983, in which Justice Aharon Barak, relying on interpretation of the said sections 43 and 55, that “the military commander is not allowed to consider the national, economic, social interests of his country to the extent that they do not have an effect on his security interest or on the interest of the local population. . . An area held under belligerent occupation is not an open field for economic exploitation.” Another High Court judgment, given in 2004, also written by Barak, states that, “the passage of time does not expand the authority of the military commander and enable him to take into account considerations other than the proper administration of the region subject to belligerent occupation.”
In response to the petition, the State Attorney's Office informed the court that the Civil Administration had submitted several recommendations regarding operation of the quarries for the approval of political decision-makers. One of the recommendations was to allow existing quarry work to continue, but, “as a rule,” not to approve new quarries in the West Bank. The Civil Administration also recommended that abandoned quarries be rehabilitated, and that the option of raising the royalties paid by quarry owners be considered. The State Attorney's Office did not inform the court whether the political decision-makers had discussed the recommendations, or when they intended to do so.
In her December judgment, President Beinisch noted that the court should not intervene in the issue of the quarries, as it is a political matter to be settled under the final-status agreement between Israel and the Palestinians. She also held that the filing of the petition more than 40 years after Israeli quarrying began justified its denial, as closing the quarries now would harm the quarry owners and their employees.
New rule: Beinisch accepts "reasonable" economic exploitation
Despite these procedural holdings, Justice Beinisch decided to rule on the substantive question of the occupying state's obligations regarding use of the occupied area's natural treasures. She began by interpreting section 55, which states:
The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.
Beinisch held that this section grants Israel “the right to utilize natural resources in a reasonable manner,” thereby overturning a fundamental principle of the laws of occupation dating back to the 19th century. In doing so, she failed to cite any legal source supporting her conclusion and relied only on arguments of the State Attorney's Office. She justified this innovative interpretation on the grounds that the Israeli occupation “has unique characteristics, the main one being the period of occupation, which requires the laws be conformed to meet reality on the ground,” by “adopting a broad and dynamic view of the military commander's obligations. She further held that there is a “dispute among experts” regarding quarrying in occupied territory.
In the application for a rehearing, Yesh Din emphasized that the dispute centers only on quarrying that began prior to the occupation and the restriction that should be imposed on expanding such quarrying during occupation; in any case, the organization argued, there is no dispute that the quarrying is supposed to benefit the residents of the occupied territory. Yesh Din also pointed out that President Beinisch misunderstood the manuals issued by the armies of the United States, Britain, and Canada, which she interpreted as permitting quarrying in occupied territory so long as it is not done “negligently.” In fact, these directives emphasize that occupying armies may continue operating existing mines but may not establish new ones. President Beinisch added that Israel’s quarrying is “relatively limited and comes within the category of use of the proceeds that does not damage the capital.” She welcomed the Civil Administration's recommendation not to build new quarries as “expressing a proper position.”
Justice Beinisch: economic exploitation serves Palestinians
President Beinisch then discussed Israel's obligations under section 43 of the Hague Regulations, which states:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
Beinisch argued that, “actually, adopting the literal approach of the petitioner would lead to the military commander not meeting his obligations under international law,” since cessation of operation of the quarries would harm the local population. The reason is that the quarries serve the local population – they provide a “not insignificant amount [of work] for the Palestinian residents,” and royalties that the quarry owners pay funds the military government, “which works to advance projects of one kind or another for the benefit of the region.” The President also accepted the argument that the quarries aid in economic development and modernization of the region, holding that it is “difficult, therefore, to accept the petitioner’s firm assertion that the quarrying activity does not in any way advance the welfare of the region, particularly given the joint economic interests of the Israeli and Palestinian sides and the prolonged period of occupation.”
The judgment overturns principled decisions of the High Court of Justice that have guided its rulings for the past 30 years; it contradicts international humanitarian law, international law, and international human rights law, and is based on unfounded allegations of fact.
The artificial detachment that Justice Beinisch made between the provisions and interpretation of section 55 and the provisions and interpretation of section 43 enabled complete ignoring of the substantive question whether Israel is permitted to gain economic profit for the state and for Israeli entrepreneurs from quarries inside the occupied territory, without regard to the question of harm to the capital. The rationale in imposing restrictions on use of quarries inside occupied territory is that the occupying state is not the sovereign there, but is only a trustee, and its presence in the occupied territory is temporary and is supposed to cease when the real sovereign replaces it. This rationale continues to exist even when the occupation continues for many years. From this stems the prohibition on economic utilization of occupied territory. The occupying state is not the owner of the natural quarries in the occupied territory, and all it can do is administer them for the benefit of the resident of the occupied territory.
The court’s “dynamic” interpretation, which seeks to modify the provisions of international law on the pretext of “reasonable” use and “prolonged occupation” can be used to sanction theft of other resources, such as the many water resources belonging to Palestinians in the Jordan Valley, where Israel carries out many water drillings that have served settlements in the area since the 1970s, mining of minerals in the northern Dead Sea on the pretext that it is “relatively limited,” or transfer of archeological finds from the occupied territory to Israel. This test may also lead to the absurd conclusion that establishment of the settlements, which international law deems unlawful in occupied territory, is permitted since the built-up area of the settlements accounts for only one percent of the West Bank and the settlements aid the Palestinians by supplying jobs and helping modernize the region.
Furthermore, Beinisch’s holding that Israeli utilization of the material excavated from the quarries in the West Bank is “relatively limited” compared to the mining potential in the entire West Bank is totally baseless. It relies on an absurd Israeli calculation that views the entire West Bank as one gigantic quarry, whereby the anticipated mining from the existing Israeli quarries in the coming 30 years will amount to only half a percent of this potential.
Justice Beinisch’s attempt to argue that the Israeli quarry operations serve the Palestinian population in some ways empties section 43 of meaning and so, too, the obligation of the occupying state to act to benefit the local population. According to the state’s figures, only some 200 Palestinians work in these quarries. The vast majority of the mined material is transported to Israel and used for construction. Beinisch ignores the small amount of royalties, in relation to the profits generated, that the quarry owners pay to the Civil Administration, and the fact that the State Comptroller found, in 2005, that the Civil Administration official in charge of government and abandoned property totally failed in collecting the payments owing to the Civil Administration from the quarries, which generate hundreds of millions of shekels a year for their owners. The state also did not mention even one project carried out with royalty payments that benefits the Palestinians, but made a nebulous claim, which it was not requested to detail, that the royalties were used to “advance one project or another for the welfare of the region.” Beinisch also ignored the enormous damage that the quarries caused to the occupied territory, and the question of their rehabilitation, even though the state refrained from setting a time schedule for rehabilitation, did not specify the cost of the rehabilitation, and did not state who would bear that cost.
The High Court’s judgment constitutes a retreat from the principled-substantive determinations that have guided its decisions over the past 30 years and conformed to international law. Those rulings imposed certain limitations, albeit partial, on Israel, which prevented the state from using the occupied territory as if it had been annexed to Israel’s sovereign territory.