MAC: Mines and Communities

Israel exploits Palestinian resources in occupied West Bank

Published by MAC on 2012-01-10
Source: Haaretz (2012-01-03)

How is this legal?

Israel's Supreme Court has ruled that the country's mining companies may exploit the occupied West Bank's natural resources for economic gain.

The Court has rejected a petition, brought by Israeli human rights organisation Yesh Din, which claimed that current quarrying is illegal under international law because it serves the interests of the occupying power.

According to the ruling, economic development of the West Bank "could not be frozen indefinitely". Mining firms were not destroying the "capital" of the West Bank's natural resources and instead providing employment to resident Palestinians.

Editorial comment: The Supreme Court's judgment is, to say the least, bizarre - and arguably quite untenable.

In 2004, the International Court of Justice (ICJ) declared Israel's occupation of the  West Bank territories illegal under international law. It's a position, many would agree, that requires unconditional withdrawal of Israel from the territories.

It should also require payment of compensation  by the Israeli state for any damages to, and exploitation of, the West Bank's natural resources by invading companies while the occupation continues.

The Hague Conventions - cited by Yesh Din in the case it has now lost -  grant certain rights to occupying powers, provided the occupier can show that exploitation is for the "benefit" of the "occupied".

The 1993 Oslo Accords also allowed for continuing Israeli occupation of Palestinian territory, so long as mining rights were gradually transferred to the indigenous population - but without a clear picture of what this should mean in practice.

As pointed out in the Haaretz article (below): "[I]n the absence of final-status negotiations, the Oslo Accords cannot justify perpetuating Israeli rule.

"Additionally, international law does not allow the rights of residents of occupied territory to be curtailed via agreements signed with the occupying state".

Decreeing justice: South Africa and Namibia

Only one international measure has ever been adopted by the UN Security Council (UNSC) prohibiting the extraction and export of an occupied territory's mineral resources, or  imposing sanctions on those who do so.

UN Decree No 1 was enacted by the UN Council for Namibia in 1974 and, shortly afterwards, endorsed by the UNSC. It was levelled against the South African apartheid regime and companies working in Namibia (then South West Africa) under its rule.

The Decree forbade any person or entity, whether a "body corporate or unincorporated", from exploiting Namibia's natural resources in any form, unless licensed by the Security Council itself.

Moreover, anyone contravening the Decree could "be held liable in damages by the future Government of an independent Namibia".

The most egregious violator of this Decree, from 1973 onwards, was RTZ (now Rio Tinto) through its management of the Rossing uranium mine. By the early 1980s this had become the world's most important single source of the nuclear fuel.

Deplorably, following Namibia's independence in March 1990, the newly-elected SWAPO government flatly refused to invoke the compensation provisions of Decree.

Indeed,  SWAPO's leader, president Sam Nujoma, pleaded with Rio Tinto to remain in the country and expand its operations.

There is one crucial difference between the situation prevailing in South West Africa more than four decades ago and that in the Israeli-occupied territories today.

Between 1946 and 1963, the ICJ adduced evidence which persuaded the UN to withdraw an earlier mandate granting South Africa  rule over South West Africa. The UN also named SWAPO as the legitimate authority in the territory.

Clearly West Bank Palestinians are still far from enjoying a similar status. 

Note: Last year we reported on attacks by Israeli forces on young Palestinians trying to  collect gravel for reconstruction of homes in Gaza, devastated by the recent invasion. See: Israel's bloody response to young men collecting gravel

[Comment by Nostromo Research,  8 January 2012]

Israel is exploiting the resources of the occupied West Bank

Hague Conventions say that an occupying state is entitled to reap some of the fruits of the occupied territory's assets, it must not deplete their 'capital' by harming the assets themselves.

By Aeyal Gross

Haaretz

28 December 2011

Israeli quarries that sell 94 percent of their produce to Israel operate in the West Bank on land allocated by the state specifically for this purpose.

What this means is that Israel is treating Palestinian resources as its own. And it is doing so even though it holds the West Bank under military occupation - a situation in which the occupying state is not sovereign, but rather serves as a kind of trustee that is supposed to manage the territory for the benefit of the local population until the occupation ends.

So how did the High Court of Justice square this circle to reject a petition against the quarries' operation? The Hague Conventions say that though an occupying state is entitled to reap some of the fruits of the occupied territory's assets, it must not deplete their "capital" by harming the assets themselves. But by opening quarries and sending the mined produce to Israel, the state isn't reaping the "fruits" of these assets (as it would by, say, collecting rent ), but depleting them for its own benefit.

The court recognized that there are serious doubts as to whether quarrying can be construed merely as reaping the fruits of assets.

But the sheer length of the Israeli occupation, it ruled, makes it necessary to "adapt the law to the reality on the ground," and opening the quarries was part of the military administration's development efforts. It also relied on the fact that under the Oslo Accords, the quarries' future is due to be decided in talks between Israel and the Palestinians.

Nevertheless, this verdict violates the rules of occupation laid down by international law. To say, as the court did, that the occupation's duration requires a "broad and dynamic" view of the military governor's obligations begs the question, "Shall you kill and also inherit?"

A prolonged occupation cannot, under cover of "developing the territory" and providing jobs for its residents, justify quarries run by Israeli companies that send most of their produce to Israel - even if the royalties they pay go to the territory's military government, and especially when most of this government's activity nowadays doesn't benefit the Palestinian population.

When an occupying state exploits an occupied territory's natural resources for its own benefit rather than that of the local population, it smacks more of colonialism than occupation. The fact that the court itself welcomed the state's pledge not to allow new quarries to open lays bare the inherent contradiction in its ruling: If the quarries are legal, why not permit new ones?

Moreover, its reliance on the Oslo Accords ignores the facts that under the interim agreement, authority over mining was supposed to be gradually transferred to the Palestinians, and that in the absence of final-status negotiations, the Oslo Accords cannot justify perpetuating Israeli rule. Additionally, international law does not allow the rights of residents of occupied territory to be curtailed via agreements signed with the occupying state.

These quarries, and the court's ruling on them, clearly reveal how under the cover of a temporary occupation, Israel is conducting a creeping annexation of the West Bank and its resources: Under the pretext of "development," it is exploiting the occupied population's natural resources - in this case, stone and gravel - for its own benefit.


Israeli companies can profit from West Bank resources, court rules

Supreme court says international law does not fit the 'reality on the ground' of long-term Israeli occupation

By Harriet Sherwood

Guardian (UK)

3 January 2012

Kochav HaShachar - Israeli companies are entitled to exploit the West Bank's natural resources for economic gain, according to a supreme court ruling that says international law must be adapted to the "reality on the ground" of long-term occupation.

The supreme court rejected a petition brought by an Israeli human rights organisation against the quarrying of stone by Israeli companies in the West Bank. Yesh Din claimed that the quarrying was illegal under international law because it exploited the natural resources of the occupied territory for the benefit of the occupying power.

But the court ruled last week that in a prolonged occupation the economic development of the occupied territory could not be frozen indefinitely. It added that the quarrying firms were not destroying the "capital" of the West Bank's natural resources, and were providing employment to Palestinians.

Existing Israeli-owned quarries should be allowed to continue operating, but no new ones should open, the court ruled, reflecting the Israeli government's position.

Yesh Din said the ruling could be applied to other economic aspects of the occupation, such as water resources and the appropriation of archeological artefacts.

Its petition against the state of Israel and 10 Israeli companies operating quarries in the West Bank demanded a halt to all Israeli quarrying and mining activity, and that no new licences be issued. It said Israeli quarrying in the West Bank was illegal and "executed through brutal economic exploitation of occupied territory for the needs of the state of Israel, the occupying power".

According to a Palestinian Authority report on the economic costs of the Israeli occupation published in September, the potential value of production from mining and quarrying in the West Bank under Israeli control is an estimated $900m (£580m) a year.

Yesh Din quoted an Israeli interior ministry document from 2008, which said that most mines and quarries in Area C of the West Bank (around 60% of the territory that is under Israeli military control) are owned by Israeli companies. Three-quarters of the total yield is sold in Israel.

Michael Sfard, Yesh Din's legal adviser, said: "Quarrying natural resources in an occupied territory for the benefit of the occupying state is pillage, and the court's reasoning that a long-term occupation should be treated differently cannot legalise an economic activity that harms the occupied residents."

Hanna Barag of Yesh Din said the ruling was "dangerous". The judgment was based on the assumption that the length of the occupation meant that Israel could adapt international law. "It allows Israel to literally steal the land," she said. Israel has occupied the West Bank for more than 44 years.

At a quarry close to the Israeli settlement of Kochav HaShacher, deep in the West Bank, director Ami Soshani dismissed Yesh Din's arguments, saying Palestinians benefited from the company's operations.

The land on which the quarry is sited was taken over by Israel. Owned by the settlement and managed by a separate company, the quarry is overlooked by the Palestinian village of Kfar Malek.

It extracts around half a million tonnes of dolomite each year, and 20 of its 25 employees are Palestinians. Soshani says that most of its output stays in the West Bank, sold either to settlements or Palestinian concrete factories.

"For the Palestinians, this is an important centre. Palestinian construction companies know they are not cheated and get a good product. The Palestinian workers here did not support the court action because they knew it could affect their livelihoods," he said.

The land itself, he said, had been promised to the Jews. "This is our inheritance, we got this land from God." There was no reason why Jews and Palestinians couldn't "stay together and live together" on the land, he added.

Shoshani said his major concern was for the environment. "This kind of quarrying is damaging. It is an ugly wound on the landscape." A geological survey found there was potential for a further 20 years of quarrying at the site.

In response to the ruling, Yesh Din said "manipulation of the rule prohibiting the harming of property in occupied territory creates a legal basis for irreparable economic exploitation of occupied territory ... On its face, the new rule allows the occupier (in a long-term occupation) to make endless use of the variety of objects found in the occupied territory: to pump its water sources, to transfer its archeological artefacts to elsewhere outside the territory, to use areas within it for garbage disposal, to sell public real estate, and more."


Response to HCJ ruling legalizing quarry activity in the West Bank by Israeli Companies

Yesh Din

3 January 2011

The High Court of Justice issued a ruling rejecting Yesh Din's petition challenging the legality of Israeli quarrying and mining of natural resources in the West Bank (HCJ 2164/09). Human rights organization Yesh Din expressed regret over the High Court ruling and concern that the ruling would implicate Israel in grave violations of international law.

The court dismissed the petition basing its judgment on the notion that laws of occupation must be interpreted to accommodate long-term occupation, in such a way which accords the occupying forces greater powers.

The court also noted that Israel's quarry activity in the West Bank benefits the Palestinian residents, since they can enjoy the employment opportunities they offer. The court based its judgment on the Israeli-Palestinian interim agreement which leaves the quarries in Area C under Israeli control, as a proof that the PA has consented to the quarries' operation.

The court did recommend, however, that Israel not open new quarries in the West Bank: "The State announced that the political echelon received recommendations according to which no new quarries, whose main purpose is to produce quarry materials for sale in Israel, should be built in the West Bank. These recommendations reflect an appropriate position, which to a certain extent addresses the issue in dispute...".

Yesh Din expressed surprise over the assertion by Chief Justice Beinisch, that the Palestinian Authority (PA) supposedly consented to the operation of the quarries, both because the wording of the relevant clause in the interim agreements does not indicate consent - just as the clauses which mention the settlements do not indicate consent to their legality - and because the PA does not have the right to consent to the violation of the Palestinians' human rights. Yesh Din noted that protecting the human rights of the occupied people is an Israeli interest, as is preventing violations of international law.

Yesh Din's legal advisor, Attorney Michael Sfard, said: "Quarrying natural resources in an occupied territory for the economic benefit of the occupying state is pillage, and the court's reasoning that a long-term occupation should be treated differently cannot legalize an economic activity that harms the occupied residents."

The Full Yesh Din Response to the HCJ Ruling

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