This is an interesting case that puts the ambiguities of the Israeli occupation of the West Bank under the microscope, if not under the spotlight.
The Israeli human rights organization Yesh Din on Sunday submitted — in support of its own request on 10 January — an “expert opinion supporting its motion for an en banc review” of the Supreme Court’s own ruling at the end of December on Yesh Din’s petition against the operation of Israeli stone quarries which extract the natural resources of the occupied West Bank, which most of the world regards as Palestinian territory.
This case goes to the very heart of nature of the Israeli military occupation.
Yesh Din filed its original petition in March 2009 against the state of Israel and 11 Israeli stone quarries operating in the West Bank. The Israeli Supreme Court, or High Court, issued its judgement a month ago, on 26 December.
In the original petition, Yesh Din “demanded a cessation to all quarrying and mining activities by Israeli companies in the West Bank. The petition argued that Israeli quarrying activity in the West Bank is illegal and amounts to grave economic exploitation of an occupied territory for the benefit of Israel, the occupying power. It also argued that the transfer of most of the quarrying materials into Israel, a fact that was later confirmed in the State’s response, violates Israel’s duties under international law, which stipulates that Israel protect public property in the occupied territories, including natural resources”.
The expert opinion just submitted in support of Yesh Din’s move is signed by Israeli scholars of international law: Prof. Yuval Shany, Prof. Eyal Benvenisti, Prof. Barak Medina, Prof. Orna Ben-Naftali, Prof. Guy Harpaz, Dr. Amichai Cohen and Dr. Yael Ronen — who do not all have the same views on the Israeli occupation.
In a press release, Yesh Din, which has been represented in court by Michael Sfard, said this was “an unusual legal move”.
These Israeli international law experts have, according to Yesh Din, “filed an amicus curiae brief claiming that the High Court, in its ruling in the quarries’ petition, wrongly interpreted the laws of occupation and the provisions regarding the occupying power’s management of public property in the occupied territories, and that the Court’s ruling (HCJ 2164/09) stands in direct contradiction with the laws of occupation. The opinion was submitted on Sunday (January 29, 2012) to the High Court of Justice in support of human rights organization, Yesh Din’s, motion for an en banc review, an additional hearing in which all judges of the Court will hear the case, of the quarries’ petition”.
We have written earlier posts about the Supreme Court ruling on the Yesh Din petition, here, here and here.
Yesh Din reported that Dr. Guy Harpaz, one of the authors of the just-submitted amicus curiae brief, said that the Supreme Court’s 26 December judgment “is based on an erroneous interpretation of international law and directly contradicts the Supreme Court’s previous judgments … This erroneous interpretation has led a large number of scholars from different institutions and with differing views to take it upon themselves, without compensation, to address this issue in order to draw the Supreme Court’s attention to the numerous and significant errors of interpretation in the judgment in the hope that the court will reconsider its position and make the necessary corrections”.
According to Yesh Din:
“The experts claim that the court gave an erroneous interpretation to the laws of belligerent occupation which contradicts the objective and spirit of the laws of occupation … At the core of this expert legal opinion is the claim that the appropriate interpretation of Articles 43 and 55 of the Hague Regulations differs from that which was presented in the judgment … Specifically, they claim that the judgment contradicts an earlier and deeply rooted rule in the Supreme Court’s case law (the Jam’iyat Iskan Rule), which has guided the Court concerning the laws of occupation for the last three decades. The experts draw the Court’s attention to the fact that it is precisely the prolongation of the occupation of the West Bank (upon which the court based its justification for the granting of broad powers to the occupier in the occupied territory) which requires strict adherence to the principle that decisions by the military commander be made either on the basis of security considerations or in order to benefit the occupied population. Therefore, the experts’ opinion is that inasmuch as the prolongation of the occupation requires the adaptation of the ‘traditional laws of occupation’ to a prolonged occupation, as the judgment says, that adjustment should be made in such a way that benefits the protected population rather than harms it. The prolongation of the occupation surely does not allow the citizens of the occupying state to profit at the expense of the occupied population”.
Yesh Din’s own argument against the 26 December judgement by the Supreme Court argues that “the new ruling by the HCJ actually permits the looting of natural resources in an occupied territory, which contradicts the accepted interpretation of the laws of occupation”.
Dennis Ross, whose role as adviser to President Barak Obama continues on an unpaid basis even after he left the State Department [see Barak Ravid’s story, here, in yesterday’s Haaretz about his discovery of a “Red Line” direct telephone link installed by the White House in Ross’ new office in Washington], has recently said that this Israeli Supreme Court judgment opens the way for Palestinian partners — or front men — in the Israeli stone quarries’ operations in the West Bank. See Ross’ Opinion Piece in the Washington Post, here, and our earlier post on this amazing proposal for taking advantage of any weakness in the Israeli Supreme Court’s judgement which is published here.
Yesh Din also said that the Supreme Court’s judgement could implicate Israel “in further violations of international law”.