Yesh Din | UN-Truth

Israeli experts in int'l law back petition for Israeli High Court review of its decision on case of Stone Quarries in the West Ban,

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:

Jam’iyat Iskan

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”.

More on Israeli Stone Quarries in the West Bank: Yesh Din asks for wider review

The Israeli human rights organization Yesh Din has just filed a petition with Israel’s Supreme Court [High Court of Justice] asking for a further hearing in the case of Israeli-owned stone quarries operating in the West Bank.

Yesh Din first challenged the legality of Israeli quarrying activities in the occupied West Bank in a petition filed in March 2009.

The petition focuses on the specific case of the stone quarries, but it exposes many of the incongruencies and the quite deliberate ambiguities of the continued Israeli occupation of the West Bank.

On 26 December 2011, after almost two years of deliberation, a panel of judges of Israel’s High Court of Justice (HCJ), chaired by Chief Justice Dorit Beinisch, “dismissed the petition and held that the quarrying activities are legal and do not violate the provisions of international law”.

Yesh Din has said that it considers that ruling “in our view both factually and legally mistaken”.

Yesh Din’s legal adviser, Attorney Michael Sfard indicated strong disagreement with the Supreme Court’s ruling by stating that ‘Quarrying natural resources in an occupied territory for the economic benefit of the occupying state is pillage”.

Yesh Din’s has posted its reaction to the Israeli High Court ruling on 26 December here.

Yesh Din has challenged, in the petition, the legality of Israeli actions during its prolonged occupation of a territory on which Israel evidently has an as-yet-unspecified claim.

Though Israel officially deals with the situation as an occupation, it avoids to the maximum extent possible using the word, or discussing the consequences.

Israeli arguments of ideological position generally say that the Palestinian territory is “disputed” rather than “occupied”.

Israel does not dispute, however, that its Ministry of Defense administers the West Bank.

And, the Israeli Ministry of Defense has installed a “Civil Administration” which restrictively regulates most aspects of Palestinian life in the West Bank. Israeli life in the West Bank, by contrast, is governed by Israeli law — in effect, creating a slow, partial, unclear and unofficial, but progressive, annexation.

While “facts on the ground” are proceeding apace, there has not yet been an official Israeli act of annexation. If and when annexation is declared, an international uproar can be expected.

Meanwhile, Palestinians argue that the Israeli creation of facts on the ground — particularly, though not exclusively, Israeli settlement-building — is intended to make the situation irreversible.

The exact nature of Israel’s claims to the Israeli/Jewish settlements that that the government has overtly and officially facilitated is still unstated.

It has become apparent that Israel does not want to evacuate not only the three or four major Israeli settlement blocs in the West Bank, but also isolated settlements, and now even what have been called “unauthorized outposts”.

The new Yesh Din petition filed on January 10 asks for further Supreme Court review of the Israeli quarries’ continued exploitation of a Palestinian natural resource — by an expanded panel of judges.

In its new request, Yesh Din argues that “Relaxing the prohibition on harm to the capital of properties of the occupied territory lays the legal foundation for irreversible economic exploitation of occupied territory by an Occupying Power, despite the fact that the prohibition on such exploitation is amongst the primary objectives (and therefore amongst the primary principles) of the international law of occupation”

In fact, Yesh Din argues, the recent Supreme Court decision “permits the Occupier (in a prolonged occupation) to make use, for its own purposes, of plunder found in the occupied territory: to pump water found there, to transfer archeological findings out of the occupied territory, to exploit open spaces for waste disposal, to sell public property and other such irreversible acts which harm or alter the capital of public properties.”

To clarify the matter, Yesh Din said it is specifically requesting the High Court of Justice to hold a further hearing with a broader panel of judges, on the following questions:

What are the boundaries of the State of Israel’s authority in relation to its administration of the natural resources belonging to the territories occupied by Israel in ‘belligerent occupation’, and in this context, what is the relationship between Article 55 and Article 43 of the Annex to the fourth Hague Convention Respecting the Laws and Customs of War on Land (1907)?

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Specifically, does an Occupying Power, in a prolonged occupation, have the authority to grant its citizens, or corporations owned by its citizens and/or registered in the Occupying Power, rights to quarry natural resources in occupied territory in general, and in quarries which did not exist prior to the occupation, in particular?

In as far as an Occupying Power is permitted to grant rights to quarry natural resources in occupied territory, is this authority subordinate to the principle of ‘continuity’ or to the principle of ‘reasonableness’?

Does the fact that Israeli quarries provide employment opportunities for Palestinians and pay royalties to the Civil Administration make granting these rights an act which should be considered, from a legal perspective, “for the benefit of the local population”?

The full request [in Hebrew, for those who read Hebrew] is posted here.

We have written earlier posts about the Supreme Court ruling on the Yesh Din petition, here and here.

Continue reading More on Israeli Stone Quarries in the West Bank: Yesh Din asks for wider review

Israeli lawyer Michael Sfard tells Turkel Commission that Israel must establish extra-military mechanism to investigate observance of international law

Israeli lawyer Michael Sfard (Yesh Din) told the Turkel Commission at a hearing in Jerusalem today that “conducting an investigation is not tantamount to punishment”.

The Turkel Commission is investigating the “maritime incident” of 31 May 2010, when Israeli Naval commandos intercepted Freedom Flotilla heading to the Gaza Strip and boarded the largest ship in the flotilla, the Mavi Marmara, killing eight men (one a 19-year-old Turkish-American high school student) in the process.

Sfard, who is among other things the legal adviser for Yesh Din, advised the Turkel Commission that Israel must establish an extra-military mechanism to verify if the IDF + its advisers follow international law.

It was the second time, in months of intermittant hearings, that Israeli human rights organizations have addressed the panel.

The Turkel Commission was expected to conclude its work in November 2010, but it only issued the first part of its report on 23 January, which can be read online here.

Arguments made in Sfard’s testimony to the Turkel Commission, according to an English-language summary, state that:
“Since the Al-Aqsa Intifada, a Military Police Criminal Investigation Division (MPCID) investigation is not opened in every case in which a Palestinian civilian is injured during military operations in the occupied territories, but rather is permitted to conduct a ‘command inquiry’ after which a decision will be made regarding whether to open an investigation.

Yesh Din’s Position is that:
1. A command inquiry, as the name suggests, is intended to draw operational lessons and is not a tool designed to collect evidence or to establish personal responsibility. Those who conduct the inquiry are not investigators but rather commanders and they do not possess appropriate training; what is said in the course of the inquiry is not admissible in court; the inquiry is confidential; and
for the most part accounts by those other than soldiers and officers are not heard.
2. The inquiry presents a significant and grave obstacle to the ability to conduct effective criminal investigations of shooting incidents in which Palestinian civilians have been injured. This is a violation of the obligation to investigate”.

Continue reading Israeli lawyer Michael Sfard tells Turkel Commission that Israel must establish extra-military mechanism to investigate observance of international law

Yesh Din demands investigation into IDF killing of two Palestinian teenagers — 5 months ago

Human rights group Yesh Din asked the Israeli High Court of Justice today to order the IDF Military Attorney-General to open an investigation into the killing of Mohammed Faisal Mahmoud Qawariq and Salah Mohammed Kamal Qawariq, two Palestinian 19-year old teens, who were cousins, shot to death by IDF forces five months ago while working in their families’ fields, during the plowing season, near the West Bank village of Awarta.

The two victims were initially accused, by reports based on statements from the Army of disguising themselves as farmers, and using a pitchfork and a glass bottle to try to attack IDF forces who had stopped them.

They were akilled by ten bullets fired by IDF soldiers (seven hitting one young man and three hitting the other), “in circumstances which raise serious suspicion of a grave criminal offence”, according to Yesh Din.

A medical post-mortem examination conducted at Rafidiya Hospital in Nablus reportedly found that the IDF bullets had been fired “at very close range”.

Yesh Din attorneys Michael Sfard, Emily Schaeffer and Ido Tamari wrote in the petition that: “The details of the incident were not clarified, and there’s a risk they will never be clarified, as long as the Military Attorney-General continues to refrain from deciding on the matter … Refraining from opening a criminal investigation five months after the incident is scandalous and will damage any attempt to conduct an effective and thorough investigation”. It also opens the possibility that charges of war crimes can be brought in other countries, under the principle of universal jurisdiction, against the IDF soldiers involved, according to the Yesh Din legal team.

Even the IDF had admitted that the circumstances remain unclear, the Yesh Din lawyers noted.

The petition, filed on behalf of the families of the deceased young men, also said that the military’s failure to open an investigation, to date, is a dangerous one “which demonstrates to every IDF soldier taking part in security activities in the West Bank that there’s no need to investigate incidents which result in Palestinian deaths”.

The petition argued that “in any case of death of civilians by soldiers’ gunfire, it is mandatory to conduct a professional, immediate, independent and effective investigation. This was not done in this case”.

As a result, the Yesh Din petition stated, the Army’s inaction “conveys a message of contempt for the lives of Palestinian civilians”, and “the Petitioners feel very aggrieved by the small amount of protection the military advocacy grants completely innocent civilians hurt by the illegal use of arms in the course of a clearly civilian situation”.

15 months later, IDF to open investigation into death of West Bank demonstrator

Haaretz is reporting today that the IDF’s Military Advocate General (MAG) Avichai Mandelblit has just ordered the army’s criminal investigations unit to investigate the death of Basem Abu Rahmeh (Bassem Abu Rahma), one of the leaders of a protest movement against Israel’s Wall in Bil’in village west of Ramallah.

Basem Abu Rahmeh was killed in April 2009, minutes after being hit in the chest by a high-velocity tear gas canister fired by Israeli troops.

The Israeli military had previously decided not to investigate his death.

Though he was standing on a hill, and was clearly not one of the few protesters who is down by the fence, challenging the Israeli Border Police and/or IDF soldiers, Basem was shot in the chest by a new type of hardened, extended range, high-velocity (“rocket”) tear-gas canister, which goes straight to the target instead of arching up into the air first. It is is said to move as fast as live ammunition. He died minutes later.

Basem Abu Rahme in Bilin on 17 April 2009

According to one report, here, “Seconds before the shooting, Basem had been pleading with the soldiers to hold their fire, shouting ‘we are in a nonviolent protest, there are kids and internationals’.” The same source noted that “The teargas projectile in question is the same kind that critically injured American national Tristan Anderson at a demonstration in Ni’lin on the 13th of March, after he was hit in the head from approx. 60 meters”.

According to Haaretz, “The Military Advocate General had refused to open a criminal investigation into the death of Bassem Abu-Rahma, but on Monday changed its mind after expert testimony showed that the tear gas canister was aimed directly at Abu-Rahma and was fired in violation of military orders”…

Continue reading 15 months later, IDF to open investigation into death of West Bank demonstrator

Richard Goldstone due in region this weekend to begin hearings on Gaza war

Until the last minute, it was not clear how South Africa’s Justice Richard Goldstone would arrive in the region this weekend with a mandate from the United Nations Human Rights Council in Geneva to begin an inquiry into the IDF’s Operation Cast Lead against Gaza (27 December – 18 January), or whetherIsrael will or will not let him enter the country, if he tries to come here.

Israel — which often prefers ambiguity — apparently did not reply to Goldstone’s request for a visa.

The mission’s mandate is to “investigate all violations of International Human Rights Law and International Humanitarian Law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”

Continue reading Richard Goldstone due in region this weekend to begin hearings on Gaza war

Israeli lawyer Michael Sfard analyzes IDF war on Gaza

A legal analysis by Michael Sfard, legal counsel for Yesh Din (Volunteers for Human Rights), quoted here extensively with his permission, puts into context the revelations by Israeli soldiers published in the Israeli media in about their “permissive rules of engagement”.

This analysis also sets the stage for the United Nations Human Rights Council’s consideration, on Monday in Geneva, of reports about the hostilities during the war.

Sfard wrote, in his analysis, that the first and most important principle of International Humanitarian Law (IHL), its raison d’etre, is the principle of Distinction: “Combatants must always aim their weapons at military targets, at combatants and military objects only. Combatants are never allowed to aim their weapons at civilians or civilian objects. There is only one exception, and that is when civilians participate in hostilities and endanger the lives of others, and then the ordinary principle of self defense of combatants allows them to use force against civilians, for the duration of the civilians’ active involvement in the hostilities. That is the only exception and it is not relevant to our case of the Gaza War”.

The second principle of IHL, Sfard states, is the principle of Proportionality, which states that aiming weapons at, or targeting, legitimate targets (such as combatants or military objects), is not legal if if there is reason to believe that illegitimate targets (civilians or civilian objects) will be harmed by the attack, and that the foreseen harm to these illegitimate targets is greater than the advantage gained by the destruction of the legitimate target.

In the war in Gaza, Sfard wrote, “there are alarming indications that we [Israel] have violated both principles. The amount – or the gravity – of the violation and the number of offenses – war crimes – that we have committed, is indeed dependent on facts. It is important to mention that according to international law, not enabling an impartial, professional, independent investigation of allegations of violations of international humanitarian law is in itself a violation of international law. So, if there are factual questions, for example, whether if before the attack on the UNRWA school there was indeed fire shot from the school at the soldiers or if the attack targeted not the UNRWA school but a nearby location, then Israel must allow an impartial, professional, independent investigation to be held. And if Israel doesn’t do so this in itself is a violation of international law”.

“Allegations have been made regarding the legality of the rules of engagement ordered to infantry units during Operation Cast Lead. Soldier testimonies published in the Israeli media alleged that the applicable rules of engagement defined ‘shoot-to-kill zones’. If that is true, that means that soldiers were ordered to shoot indiscriminately at combatants and civilians alike. That is the clearest violation of the principle of Distinction …

“The most simple allegation that can be made, and it seems that cannot be refuted, against the Israeli army in the Gaza War is that it implemented a declared policy of targeting civilian infrastructure and civilian objectives, which was termed by Israeli leaders as a policy of targeting ‘symbols of the Hamas regime’, or ‘symbols of government’. In the framework of this policy, we targeted governmental offices, such as the Ministry of Education and the Ministry of Transportation. We targeted the Palestinian Parliament, the Parliament House in Gaza, and police stations, the police main headquarters, and many others. These are civilian objects and are not a legitimate target …

“I have to stress that police, even if armed is not a combating force under international law, unless the police force is a part of the combating infrastructure. Policemen do not enjoy the rights of combatants according to international law; if they engage in battle, if they take part in hostilities, they can be tried, and they don’t enjoy Prisoner of War status if captured. At the same time, and as a consequence of that, they do enjoy the protections afforded to civilians and thus they are not a legitimate target …

“Of course if civilians were in these institutions during the attack then the offense is much graver and then we are dealing not only with destruction of civilian infrastructure and objects, but also with a possible crime of wanton killing of civilians …

On Proportionality, Sfard wrote: “[P]roportionality in essence is a principle that is based on morality, and my morality is [or,may be] different than other men or women’s morality. But if I equate what happened in this recent conflict to what has happened in incidents in the past to see what Israel has said is Proportionate and what Israel has said is not Proportionate, this time we can see a huge drop in moral standards by Israel.

“Case in Point: Five and a half years ago, Israel assassinated Hamas extremist Salah Shehade killing fourteen civilians and wounding another hundred in that attack. Israel has never claimed that this attack was Proportionate. Israel claimed in writing, before the High Court of Justice, that had they known that civilians in such numbers were around Salah Shehade at the time, they would have not carried out the attack. Their defense was different then, they said they did not know: ‘we did not expect, we could not foresee the damage to civilians and civilian objects’.

“In this war we have many many many Salah Shehade assassinations. And this time Israel has not said it is sorry for the loss of life, and has not said ‘we did not know that civilians were there’. Actually it says something completely different. It says ‘we called them and we announced that we are going to bombard this house and we gave them a chance to leave’.

“Well, that means that Israeli decision makers knew that there were civilians in the house. The reason why they [the civilians] did not leave the house is immaterial, irrelevant to the question of whether the attack was legal or not. It might be that those people did not leave because some of them were old, some of them may be handicapped, maybe children did not leave for other reasons, and maybe they are fanatics who do not think that they should leave just because Israeli airplanes were going to shoot at them. It is not important. The fact of the matter is that the result in many attacks was grossly disproportionate according to the standards Israel claimed it held five years ago.

“It is also irrelevant whether the attack was meant to kill a combatant or a terrorist that was in the house, or whether the attack was meant to demolish ammunition that was hidden the house. It is not important, as long as the house was not used during the attack to shoot at soldiers. If someone shoots at you, you can shoot back, you can defend yourself, that’s clear. [But if not…]

“And now we are getting to the second point that I wanted to make about proportionally. And that is the point, the most complex one, what do you do when you are shot at from a civilian object? And that was the Israeli defense regarding the UNRWA school, and regarding Dr. Abu El Esh, and other incidents where they shot at protected areas. Again, the incidents have to be investigated and Israel must allow investigations, and if it doesn’t, that’s a violation in itself.

“But let’s assume Israel is telling the truth, and the attacks on these places were carried out as responses, retaliations, or self defense, because Israeli soldiers were shot at from these places, then we have to ask ourselves whether the counter attack was Proportionate. According to media reports, and these incidents must be fully investigated to resolve factual issues, what we have seen during this war was that every time snipers shot at Israelis, the Israeli army responded with bombs, either from the air or by tanks, which demolished the whole compound from where snipers allegedly shot at them. There is a specific example in the High Court of Justice’s decision on the legality of the assassinations policy case, where former Chief Justice of the High Court of Justice Aharon Barak states that it would be proportionate to shoot at a sniper that is shooting at you from a balcony, but it would be disproportionate to drop a bomb that would demolish the whole building and would bury underneath not only the sniper but also his neighbors…

In addition, Sfard wrote: “There is one principle in International Law of Armed Conflict which was certainly violated grossly in the recent Gaza War. I am referring to the duty of the fighting powers, definitely in circumstances of actual occupation and when engaging in offensive in a civilian area, to allow civilians to escape the battle zone.

[This is a point discussed in our earlier post, on 6 January, “No other country in the world”, here.]

The point is also perfectly corroborated with the just-released testimony of one of the soldiers, “Aviv”, who said: “they [the IDF commanders] used a huge amount of firepower and killed a huge number of people along the way, so that we wouldn’t get hurt and they wouldn’t fire on us. At first the specified action was to go into a house. We were supposed to go in with an armored personnel carrier called an Achzarit [literally, Cruel] to burst through the lower door, to start shooting inside and then … I call this murder … in effect, we were supposed to go up floor by floor, and any person we identified – we were supposed to shoot. I initially asked myself: Where is the logic in this? From above they said it was permissible, because anyone who remained in the sector and inside Gaza City was in effect condemned, a terrorist, because they hadn’t fled I didn’t really understand: On the one hand they don’t really have anywhere to flee to, but on the other hand they’re telling us they hadn’t fled so it’s their fault”… This was included in our previous post, here.

Back to Michael Sfard’s analysis. He also noted that: “Israel says, and probably rightly so, that the arena of battle was forced on us, that we didn’t chose where to fight, that the Hamas combatants were hiding in the streets of downtown Gaza. But what could a civilian who did not wish to be part of the fighting do in order to save herself and her family? Israel did not open a humanitarian corridor for those who wished to leave their houses and stay away from the fighting area until the hostilities were over. And that is possibly the worst violation of Israel’s responsibilities under International Humanitarian Law in the Gaza War, and one that created many levels of violations, because the IDF forced civilians to stay in a combat zones. The civilians could not get medical care or be treated, they could not get food and water supplies, and they were victims of direct attacks and enormous psychological stress.

“I am not a military expert – but I believe it would have given Israel a huge military advantage if tens of thousands of civilians would be allowed to leave the combating area and it seems, and this is based purely on a suspicion, but it seems that not allowing civilians out was part of the strategy in order to create the deterrent that Israeli leaders talk about constantly. And if that’s true, it is a grave violation of International Humanitarian Law“.