One of the most important rules in the laws of occupation is the prohibition on the occupying power to plunder the occupied territories and transfer its non-renewable resources to its own hands. The Israeli court reviewed this rule in a petition filed by residents of two settlements, Na’ale and Nili, against the establishment of a quarry in the Natuf valley nearby.
The settlers were concerned about damage to their quality of life as a result of the quarry’s establishment near their homes: quarries, by nature, produce noise and dust and scar the natural scenery. However, in their efforts to prevent the harm caused to them, the settlers had no qualms using arguments that are based on international law. The establishment of the quarry is prohibited, they claimed, since the area in question is occupied territory and the establishment of the quarry contravenes the aforementioned rule regarding the prohibition on transferring the non-renewable resources of the occupied territory to the occupying power.
[1] No, this is not a fictional illusion, but a true story. People whose very settlement in the occupied territory is in complete contravention of international law seek to rely on it. Settlements which are part of the Israeli project of annexation and exploitation of the Occupied Palestinian Territories (OPT), cry out against another expression of the very same policy. But I did not choose to write about this judgment for being a prime example of hypocrisy, but rather for being typical of the Israeli court’s manner of handling international law while providing a seal of approval for the Israeli annexation project.
And thus holds Justice Grunis in the judgment (rendered with the consent of Justices Rivlin and Procaccia) concerning the international law based argument:
The next argument which requires consideration is that the establishment of a quarry contradicts the Hague Regulations pertaining to belligerent occupation. The Petitioners maintain that according to the rules of international law, a state which is in an area that is subject to belligerent occupation may not utilize the local resources for its own benefit. This claim is based on Regulation 55 of the Hague Regulations. This regulation determines that the state which militarily controls another area may administer and generate profit (administrator and usufruct) from public buildings, real estate, forests and agricultural estates […]. Based on this it is argued that the establishment of a quarry is not consistent with the limited permission to administer and generate profit.
It should be noted that although the aforesaid terms of administrating and generating profit do not include sale, they do not preclude rent, lease or cultivation […]. The question can be asked, whether the act of excavation is included in the scope of generating profit? Seemingly, this is not so, because use is made of a resource in a manner that depletes it. Even if this is the case, the prohibition does not apply where the act concerned is performed for the benefit of the local population or for local needs. Thus, for example, construction of roads within the area under belligerent occupation is allowed when the persons using them are also local inhabitants (HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area [...], pp. 795, 811). It should be noted that it has already been ruled that the settlers too may be considered as local population (in one case the inhabitants of Kiryat Arba were mentioned when a question arose pertaining to the provision of electricity to the local population: HCJ 256/72 The Electricity Company for the Jerusalem District Ltd. v. The Minister of Defense, p. 138). An additional datum that may project on the entire approach and the applicability of the rules of customary international law is the length of the period in which the area is under belligerent occupation. The accepted rules developed against the background of various wars which led to the belligerent occupation lasting a relatively short period of time. In the case of very long periods of time there appears to be a justification to acknowledging that the occupying state is entitled to make moves which can have a long term effect on the area under belligerent occupation […]. From the decision of the Objections Committee [one of the respondents in the petitions] and from the material that was presented by Shafir [also one of the respondents] it arises that the output of the quarry will also serve for works within the boundaries of Judea and Samaria. Therefore, the Petitioners' argument that is based on international law should not be accepted.[2]
Here, Justice Grunis resorts to an impressive collection of legal maneuvers developed by the Israeli court, in order to justify Israel’s actions whose underlying rationale is an effective annexation of the OPT and their exploitation for the benefit of Israeli interests. An action designed to provide raw materials for the Israeli market and wealth for an Israeli corporation is presented as designed for the benefit of the residents of the occupied territory. Among the residents of the occupied territory, whose welfare the state must safeguard, the court includes the settlers: the very people whose dwelling in the territory is prohibited, among other things, in order to protect the occupied residents from exploitation, discrimination and plunder of resources – phenomena which are characteristic of colonial projects and population transfers from the occupying power to the occupied territories in other places and times. Finally, Justice Grunis also makes use of the expression “long term occupation”, which was coined by the Israeli court, as a reason for relaxing the prohibitions in international law.
Justice Grunis refrains from thoroughly examining the logic behind this rule of international law he is discussing or the facts of the matter.
The prohibition on establishing settlements derives from the same purposes as the prohibition on depleting the resources of the territory and one violation of international law cannot set the stage for another
RRegulation 55 of the Hague Regulations (1907) stipulates that: “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”.
[3] This rule reflects the principle that territories may not be acquired through war and that occupation is just a temporary situation in which the occupying state holds the territory as a trustee of the legitimate sovereign until an agreement is reached, and without a shred of sovereignty for itself. As a trustee, the occupying state may not subjugate the occupied territory to its national interests (although it may take measures necessary for ensuring its military control over the territory and for protecting its powers therein). International humanitarian law specifically sets forth guarantees to prevent permanent changes to the occupied territory and its economic depletion. Such actions thwart the occupied territory’s capability to function under the leadership of its legitimate sovereign once the occupation ends. Plundering the natural resources of the occupied territory is an abuse of the control gained through the use of force and is harmful to the residents of the occupied territory who are to benefit from these resources.
The fact that an occupation persists for a long period of time cannot be used as an excuse for permitting these actions. It does not afford Israel any measure of sovereignty over the territory, does not change the fact that the territory came to be controlled by Israel through the use of force, or the fact that Israel’s military rule does not represent the residents of the occupied territory. On the contrary, the persistence of the occupation increases the demands the occupier must meet in order to ensure that, when the time comes, the legitimate sovereign would be able to actualize its rule in practice. The prohibition on establishing settlements derives from the same purposes as the prohibition on depleting the resources of the territory and one violation of international law cannot set the stage for another.
Justice Grunis rejects the international law argument based,
inter alia, on the reason that “the output of the quarry will also serve for works within the boundaries of Judea and Samaria”. Using this general remark, the justice conceals the actual nature of the Israeli quarrying project in the OPT. The reality of exploitation of Palestinian natural resources for Israel’s benefits is revealed in a report by the Planning Administration of the Ministry of the Interior, published on the ministry’s website.
[4] The report concerns the reserves of raw materials for buildings and roads in Israel. The report’s point of departure is that raw material reserves for these sectors inside Israel are expected to deplete and reach a red line in the years 2015-2020. The report examines other sources for raw materials, and,
inter alia, reviews their supply from the OPT. According to the report, the OPT supply Israel with close to 10 million tons of gravel and aggregates. Most of these raw materials are extracted in Area C which is under full Israeli control and by Israeli companies. The Israeli military administration began taking measures to increase quarrying back in the 1990’s and at the time the report was written, planning on this matter had resumed. At the time the report was written, 11 plans were in place for new quarries or the expansion of existing ones in Area C. These plans represent reserves of 260 million tons of excavation materials. One of these plans was for the expansion of the quarry that was established following Justice Grunis’ judgment.
[5] According to the report “the annual gravel production of the quarries in this area [Area C] is estimated by the trade, industry and mining staff officer in the Civil Administration in the Judea and Samaria Area, at a total of some 12 million tons per year. Most of the quarries are owned by Israeli companies with a tendency to market to Israel (some 74% of production). The assessment is that this trend will continue into the future. The estimated reserves (active quarries and suggested plans) – some 463 million tons. These reserves, at the current production level, will suffice for approximately 38 more years […]”.
[6] In 2009, the Israeli NGO Yesh Din filed petition to the HCJ against the exploitation of OPT natural resources by Israeli quarries operating therein. The petition is still pending.
[7] The main concern of the petitioners in the Na’ale case was pollution, dust and noise from the quarry being built right near their homes. On this issue, a number of instructions designed to minimize the hazard were put in place. One can only hope that the resource plundering project carried out by Israel does not get too much in the way of the settlement annexation project carried out in the very same territories – under the auspices of the court.
Adv. Yossi Wolfson The author is an attorney and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.
