Michael Sfard + Yesh Din lose Supreme court case opposing Israeli stone quarries in the West Bank

Michael Sfard, a Tel Aviv-based Israeli lawyer who represents Palestinians aggrieved by the Israeli government and its policies, has been forcing Israeli clarification of its policies.

Even when he loses a case, as happened on Monday in a ruling handed down by Israel’s Supreme Court on Israeli stone quarries operating in the West Bank [which most of the world regards as occupied Palestinian territory], he manages to get incremental new clarification of some of Israel’s heaviest and most obscure policies

In the Supreme Court ruling handed down yesterday, Michael Sfard was representing the Israeli non-governmental human rights organization Yesh Din [Volunteers for Human Rights].

An article in Haaretz today by Zafrir Rinat, entitled High Court says Israel can take advantage of West Bank resources, is subtitled: Court adopts state position. The Haaretz story explained that Yesh Din “argued that the 10 Israeli-owned quarries in the West Bank violate international law, which states that an occupier may not exploit an occupied territory’s natural resources for its own economic benefit; it may use such resources only for the benefit of the occupied people or for military purposes”.

According to Haaretz, the Supreme Court ruling, written by Judge Dorit Beinisch, argued “it is necessary to take account of the fact that the West Bank has been under a prolonged and continuing occupation, so the territory’s economic development cannot be put on ice until the occupation ends. The quarries, she noted, supply jobs and training to a non-negligible number of Palestinians; some of their yield is sold to the Palestinians; and the royalties the quarry owners pay the state – almost NIS 30 million a year – are used by the Civil Administration in the territories to fund projects that benefit the Palestinian population. ‘In this situation, it’s hard to accept the petitioner’s unequivocal assertion that the quarries’ operation does nothing to advance the [Palestinian] region, especially in light of the Israeli and Palestinian sides’ mutual economic interests and the prolonged duration’ of Israel’s presence in the West Bank, she concluded”.

By these revelations, it appears that the Israeli owners of the stone quarries pay royalties on their production and sale of Palestinian stones to the Israeli military [Civil Administration] in order to maintain the military occupation of the West Bank.

Haaretz reported the Beinisch examined “what international law has to say, and particularly Article 55 of the Fourth Hague Convention, on which the petition was based. That article requires the occupying power to ‘safeguard the capital’ of the occupied party’s natural resources and ‘administer them in accordance with the rules of usufruct’, meaning the rules governing fair usage. But Beinisch accepted the state’s position that Israel’s use of the quarries is limited and does not amount to destroying their ‘capital’, and hence does not violate international law. This position is bolstered, she said, by the state’s decision not to permit any new quarries to open” [see below].

Haaretz added that Beinisch accepted “the state’s view that the Israeli-Palestinian [Oslo] interim agreement permits the quarries to operate in their present manner until a final-status agreement is signed”. This Haaretz report is posted here.

Yesh Din sent its own explanatory email hours earlier, which announced that “The High Court of Justice issued a ruling on Monday, December 26, rejecting Yesh Din’s petition challenging the legality of Israeli quarrying and mining of natural resources in the West Bank (HCJ 2164/09) … 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”.

But Yesh Din took exception to this argumentation, expressing “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’. Attorney Sfard added, ‘This ruling attempts to tread a fine line between the obvious concern that we are committing pillage, and violating the prohibition against exploiting natural resources of an occupied territory, and the difficulty in severing Israel’s criminal economic dependence on the territories it has occupied. Unfortunately, we cannot come out of this unscathed. Neither we, nor the court’.”

In its email, Yesh Din expressed “concern that the ruling would implicate Israel in grave violations of international law”.

The Yesh Din petition was submitted to the Israeli Supreme Court in March 2009, against the state and 11 Israeli companies that operate quarries in the West Bank.

Yesh Din demanded, in the petition, “a halt to all of the quarrying and mining activities by Israeli companies in the West Bank. The petition also demanded that no new concessions for quarries be issued, and that existing quarrying licenses not be extended. The petition claimed that Israeli mining activity in West Bank quarries is illegal and executed through brutal economic exploitation of occupied territory for the needs of the State of Israel, the occupying power. In addition, it argued that most of the quarrying output is transferred into Israel, a fact later confirmed in the state’s responses, contrary to Israel’s duties under international law to protect public property in the occupied territories, including natural resources”.

As Yesh Din reported, “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’…”

Background information about the petition is posted on Yesh Din’s website, here.

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