Exploiting A ‘Dynamic’ Interpretation? The Israeli High Court of Justice Accepts the Legality of Israel’s Quarrying Activities in the Occupied Palestinian Territory

Exploiting A ‘Dynamic’ Interpretation? The Israeli High Court of Justice Accepts the Legality of Israel’s Quarrying Activities in the Occupied Palestinian Territory

 Valentina Azarov is a lecturer in human rights and international law and the chair of the Human Rights Program at the Al-Quds Bard College, Al-Quds University, East Jerusalem, Palestine. Formerly she worked as a legal researcher with Al-Haq, a Palestinian human rights organisation, with consultative UN ECOSOC status, and HaMoked-Centre for the Defense of the Individual, a legal aid human rights group that submits petitions before the Israeli High Court on violations of Palestinian rights in the occupied Palestinian territory. She is also an author for the International Law Observer.

On 26 December 2011, the Israeli High Court of Justice rendered its judgment in the case concerning Israel’s quarrying activities in the occupied Palestinian territory filed by the Israeli human rights organisation Yesh Din, who demanded that Israel terminate its quarrying activities since they violate Israel’s obligation as an Occupying Power to administer the occupied territory for the benefit of the local population (HCJ 2164/09 Yesh Din v The Commander of the Israeli Forces in the West Bank et al. (Unofficial English translation)). The judgment is an important occasion for examining the Court’s practice of applying international law to the manner in which the Israeli authorities’ administer the occupied Palestinian territory. By adopting a dynamic interpretation of the principles of the international law of belligerent occupation, in particular the ‘usufruct rule’ enshrined in Article 55 of the 1907 Hague Regulations, the Court’s ruling construes a right for the Israeli authorities to extensively exploit the natural resources in the Palestinian territory for the benefit of the Israeli private market. Among others, Gross’ Op-Ed on the judgment in the Israeli daily newspaper Haaretz, notes the purposive character of the Court’s argumentation, and the way in which its verdict violates the rules of the international law of belligerent occupation.

On 10 January 2012, Yesh Din submitted a request for a further hearing in the case with a larger panel of judges to examine a set of principled legal questions raised by the judgment. An amicus curiae brief was also presented to the Court by a group of Israeli international law scholars stating that the Court erred in its interpretation of Articles 43 and 55 of the Hague Regulations and concluding that the Court’s analysis is inconsistent with the most fundamental principles of the law of occupation.

Israel started operating quarries in the occupied Palestinian territory in the 1970s, with their production levels growing incrementally since. Today, there are ten quarries, eight of which are in operation. According to the petitioners, the majority of their yielded product (approximately 75%) is transferred for use in the Israeli construction market, whilst in some of these quarries the percentage of output transferred to the Israeli private market reaches 94%. The State claimed that the current level of production makes for about half a percent of the total potential production quota, and noted that Palestinian workers are being employed in the quarries and that royalties are paid to the Civil Administration, the Israeli military government in the occupied Palestinian territory, from the quarries’ operation (paragraph 1 of the judgment).

The PLO-Israel Interim Agreements 1995 and Israel’s quarries in occupied territory

Before considering the petitioners’ arguments, the Court examines the PLO-Israel Interim Agreements 1995 in which the parties agreed to transfer rights over the quarries to the Palestinian Authority (which was created by the Agreements to administer the occupied territory). Whilst noting the political character of these practical arrangements, the Court holds that Israel’s (legal) right to operate quarries was ‘settled’ in the Agreements (Article 31 to the First Addition to Annex 3 (Civil Annex)),

“it seems that the Petitioner may have forgotten that the best interests of the protected population – certainly considering the manner by which such interests have been portrayed in this petition – lie within the responsibility of the Palestinian Authority […] the Interim Agreement stipulates that responsibility over the issue of quarries […] shall be gradually transferred from the Civil Administration to Palestinian hands […] the Israeli and Palestinian parties had seen fit to maintain explicitly the status of quarries operating within Area C, such that it could be determined in the course of future negotiations over the final agreement” (paragraph 6 of the judgment).

The Court effectively makes the issue of Israel’s quarrying activities in the occupied territory a ‘non-justiciable’, political matter, resulting in its dismissal since the Court “shall not involve itself […] in petitions whose dominant aspect consists of considerations of the political-national-security kind” (Ibid). Critically, the Court fails to mention that the responsibilities in question were never actually transferred to the Palestinian Authority. This conclusion thereby disregards the fact that, based on the application of the Agreements, Israel’s quarrying activities in the occupied territory are being undertaken ultra vires (as noted in the Amicus Curiae brief submitted to the Court in a request for a further hearing, following the judgment). Instead, in light of the perceived relevance of the Agreements to the resolution of these questions, it adds,

“The suitable framework for deciding the issue of the future activities of Israeli quarries in the Area is within the framework of diplomatic agreements, wherein the Petitioner would not be an eligible party to bring claims before the State. This is true in particular considering the fact that, as aforementioned, the Petitioner’s arguments were eventually based on an alleged general infringement of Palestinian rights under circumstances in which the Palestinian Authority itself had been a party to a settlement referring to the activities of the Quarries within the Interim Agreements” (Ibid).

This reasoning not only appears to grant the Agreements a quasi-legal character, but it also implies that the (political) Agreements can trump Israel’s international law obligations, effectively affirming Israel’s violation of the law of occupation and allowing for the Israeli authorities extensive exercise of rights in excess of the limits of the law of occupation, in territory where it is not the legitimate sovereign. The Court’s reasoning also contravenes the basic international law rule that holds that a State may not invoke the provisions of its internal law as justification for its failure to fulfill its obligations under international law (enshrined in Article 27 of the 1969 Vienna Convention on the Law of Treaties).

Critically, the Court’s understanding of the status and consequence of the Agreements on the applicable framework of international law also ignores the ultimate purpose of the law of occupation, which guarantees the inviolability of protected persons’ rights by prohibiting the occupied population, and their representatives, from legally waiving their rights. Whilst the relevant provisions of the Fourth Geneva Convention (GCIV) refer to the rights “secured to them by the present Convention”, it remains unclear whether these include the rights provided for in the Hague law of occupation (viz. 1907 Hague Regulations). It is suggested that a functional, contextual interpretation of the law of occupation would presume protection for the ‘usufruct rule’ along with the individual and collective human rights that complement it (i.e. the right to self-determination and Article 25 of the 1966 International Covenant on Economic Social and Cultural Rights), thereby barring any argument concerning their possible waiver by the Palestinian Authority in the context of the Agreements. Admittedly, this is not a clear-cut application of the law, which has been subject to relatively little doctrinal discussion.

A partial understanding of the limits set by the ‘usufruct rule’

The ‘usufruct rule’ is codified in Article 55 of the 1907 Hague Regulations, which reads as follows,

“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.”

 It is unquestionably a provision that is in itself unclear and affords very little guidance on either the purpose, use or quantitative limits of exploitation of natural resources by the Occupying Power in the occupied territory. Hence, the rule has been subject to varying interpretations. The view taken by the majority of publicists, and discussed by Arai-Takahashi in his seminal work on the law of occupation, is based on the rule that prohibits the Occupying Power to undertake permanent changes in the occupied territory, which thereby forbids it from either exploiting a mine at a rate more rapid than the previous level of production, or opening mines that were not in use prior to occupation.

A correct interpretation of the rule should be based on a contextual interpretation and an astute understanding of the general principles governing belligerent occupation, particularly the two important limits on the exploitation activities in occupied territory: (i) they must not have permanent effects and (ii) they must not be undertaken to the detriment of the local population. As such, these limitations strictly prohibit the occupier from interfering with the economic activity of the occupied territory with a view to drawing economic benefits for itself (see Antonio Cassese, ‘Powers and Duties of an Occupant in Relation to Land and Natural Resources’ in Emma Playfair ed., International Law and the Administration of Occupied Territories, Clarendon Press, 1992). This was the case with Israel’s exploitation of oil fields in the Sinai Peninsula, which violated Article 55 on the grounds that Israel was exploiting the economic resources of an occupied territory primarily for the purpose of domestic consumption, exceeding the level necessary to meet the expenses of occupation.

Already at the early stages of its analysis, based solely on these three sources – namely, Dinstein, Von Glahn and the Black’s law dictionary – the Court confidently arrives at the conclusion that so long as the property is not excessively damaged, the occupier is permitted to enjoy its products, seemingly even if these are used to cater to the interests of private actors on the Occupying Power’s private market (paragraph 7 of the judgment). At the crux of its analysis, whilst noting that the ‘usufruct rule’ remains “under dispute among scholars” (Ibid), the Court embarks on an examination of the two main legal issues in question: (1) the extent of the exploitation – whether new quarries can be established by the Occupying Power; and (2) the use of the product of exploitation – whether the interests of the local population are being served.

On the first issue, the petitioners claimed that quarrying might be allowed “only on a narrow exception known as ‘the principle of continuity’, to maintain the operation of quarries that existed preceding the occupation, whilst the State argued that such activities are “permitted subject to the principle of reasonableness”, for as long as they are not “damaging to the capital” (paragraph 8). Interestingly, in accepting the State’s arguments, the Court sidesteps the scholarship of Seibel and Dinstein, who hold that the production of minerals is allowed only in existing mines. Instead, the Court bases its conclusion on the work of Zamir on “State Lands in Judea and Samaria [Israel’s name for the West Bank]” – a publication examining the Israel‘s land system in the occupied territory which includes practices of unlawful appropriation of land that is most often allocated for the construction of settlements – where he notes that “there are different opinions as to whether and to what extent said occupier is entitled to develop new mines” (paragraph 8 of the judgment). The Court also cites the American Military Manual, the UK Manual on the Law of Armed Conflict and Canada’s LOAC Manual in affirming that the occupier’s only obligation is to ensure that the natural resources of the occupied territory are not depleted or overused, which is the basis for its conclusion that there is nothing to prevent an Occupying Power from opening new quarries that did not exist preceding the occupation (Ibid).

Having exposed the uncertainty that exists in the interpretation of these provisions, instead of resorting to the widely accepted methods of treaty interpretation (codified in the Vienna Convention on the Law of Treaties), which at the very minimum reflect the object and purpose of the law of occupation, the Court arrives at the conclusion that the position presented by the State is reasonable, without properly questioning its premise. The Court’s conclusion that Israel’s quarrying activities are in line with the ‘usufruct rule’ ignores the fact that the current extent of these activities is bringing about the quarries’ depletion – as officially indicated by the Israeli military government who stated that at the current mining rate the entirety of quarries in Area C would be exhausted in 38 years (paragraph 24 of the Amicus Curiae brief summary). It also ignores the occupier’s obligation “to restore, and ensure, as far as possible, public order and safety”, including the maintenance of normal life in the occupied territory for the benefit of the local population, as per Article 43 of the 1907 Hague Regulations, which requires that the economic activities of the occupied territory be developed on the basis of the will of the local population and for their benefit, as discussed below.

Legal concessions granted to the prolonged occupier

In prelude to its second question concerning the use of the product of exploitation, the Court recalls that due to the “unique circumstances of the Area” and its “prolonged occupation” regard should be had to the “duty to prevent the local economy from collapsing”, which the Court considers to be a facet of the ‘principle of continuity’ (paragraph 8 of the judgment). The Court notes that the application of “the principle of continuity, is a narrow interpretation that is not only unnecessary but might even cause economic stagnation and harm the interests of the Area [Israel’s name for the occupied West Bank]” (Ibid). Mindful of the importance of the “quasi-constitutional framework maxim of the belligerent occupation laws” set out in Article 43 of the 1907 Hague Regulations (Ibid), the Court asserts

“the traditional occupation laws require adjustment to the prolonged duration of the occupation, to the continuity of normal life in the Area and to the sustainability of economic relations between the two authorities – the occupier and the occupied […] This kind of conception supports the adoption of a wide and dynamic view of the duties of the military commander in the Area, which impose upon him, inter alia, the responsibility to ensure the development and growth of the Area in numerous and various fields, including the fields of economic infrastructure and its development” (paragraph 10 of the judgment).

The Court accepts the State’s interpretation of Article 55 as being “reasonable” (Ibid), and claims to conclude on the basis of a gründnorm of the law of occupation enshrined in Article 43 of the 1907 Hague Regulations, that the opening of new quarries in order to maintain relations between Israel and the Palestinian Authority serves the benefit of the local population, since it “does not constitute a depletion of the capital” (paragraph 11 of the judgment). The Court’s understanding of Article 43 ignores the underlying premise of its provisions, which prohibits the occupant from benefiting its own economic, national or social interests, whilst require that its decisions be for the benefit of the local population, and exceptionally for its military needs. As such, the Court’s rationale is based on a disjointed application of the rules of the law of occupation, interpreting Article 55 separately from the limits set by Article 43 – an application of the law that falls short not only of the respective purposes of each of these provisions, but also of the overall object and purpose of the law of occupation, which is the conservation of the fabric of life in the occupied territory.

Whilst the construction of an obligation to ensure the development of the occupied population is a welcomed pronouncement, such actions by the occupier should in all cases cater to the interest of the local population, including their social and economic needs, whilst reinforcing the limits concerning the benefit that the occupier can obtain from its activities in the occupied territory (paragraph 10 of the Amicus Brief summary). This obligation presumes that the occupier is granted only limited discretionary powers to fulfill this obligation, seeing that these are always susceptible to its abuse. In other words, the strengthening of the limitations placed on the occupier’s activities by the law of occupation is the only safeguard against the occupier turning into a political and administrative government in disguise that cannot be expected to genuinely cater to the interests of the local population without taking its own interests into consideration.

On the basis of this “dynamic view” of Article 43, the Court proceeds to accept the legality of the sale of the quarries’ products on the private Israeli market by holding that they contribute to sustaining “relations between the authorities”, i.e. Israel and the Palestinian Authority (paragraph 10 of the judgment). In doing so, the Court construes the economic relations between the authorities, which cater primarily to Israel’s domestic interests and afford no concrete benefit to the Palestinian economy, as a means by which Israel fulfills its obligation to provide for the benefit of the local population. Since the new quarries have already been established and have been operational for a considerable number of years, the Court affirms that their potential closure is bound to cause economic instability in the occupied territory (noting the involvement of Palestinian workers in their operation), which would result in a breach of Israel’s obligations under the law of occupation. Instead, the Court’s judgment states the following,

 “adopting the Petitioner’s strict view might result in the failure of the military commander to perform his duties pursuant to international law. For instance, adopting the stance, according to which under the current circumstances the military commander must cease the operations of the Quarries, might cause harm to existing infrastructures and a shut-down of the industry, which might consequently harm, of all things, the wellbeing of the local population” (paragraph 12 of the judgment).

Interestingly, the Court adopts the position that to remedy an ongoing breach, flowing from the quarries’ current activities, another breach needs to occur. It reaches this conclusion without undertaking a balancing exercise to examine the circumstances of this reality. This logic also seems to justify Israel’s ongoing violation of Article 55 through a broad, concessional interpretation of Article 43 – in other words, whilst exploitation activities exceed the ‘usufruct rule’, they are construed to be for the benefit of the local population and therefore legal. This conclusion ignores an important premise for the application of the law of occupation that assumes the need to respect the will of the local population in the occupied territory so as not to infringe upon their right to self-determination, which can be said to be at least partially suspended while the legitimate sovereign is incapable of exercising effective control and administering the daily life of the occupied territory.

Moreover, the notion of the ‘benefit to the local population’ adopted by the Court clearly includes the benefit of the Israeli settler population in the occupied Palestinian territory by including the use of the quarries’ products for “projects within the Judea and Samaria area” in reference to the cases of Naale and Givat Nili settlements where the Court confirmed that the use of these products in settlements fulfilled the definition of “the benefit of the local population or local needs” (paragraph 12 of the judgment). Thus, the Court’s interpretation of the term “local population”, following its own jurisprudence, includes Israeli settlers, who have been transferred to the occupied territory and maintained there by the Israeli government in clear contravention of international law.[1] Similarly, in a judgment rendered on 6 September 2011, in a case concerning the construction of the Tel-Aviv-Jerusalem train line (the A1 train), the Court upheld a creative interpretation of the notion of ‘the benefit of the local population’ presented by the State – based on an unsubstantiated plan for a train system that would connect Israeli train lines with train lines in the West Bank and Gaza Strip to be constructed in the future – as one of the main arguments for accepting Israel’s requisitioning of private land owned by villages in the occupied territory as being in the interests of the local population (HCJ  281/11 Head of Beit Iksa Village Council v Minister of Defense et al., paragraph 7 (Hebrew)).

The Court’s analysis arrives at the conclusion that the petition should be dismissed. It bases this conclusion on the procedural arguments submitted by the State coupled with an acknowledgement of the current state of affairs created by Israel’s ongoing violations of international law. According to the Court, therefore, it is not only impractical but also counter-intuitive to interfere with the executive power and demand the State’s adherence to what it perceives to be largely unclear, debatable principles of the law of occupation. The Court’s final remarks are presented as follows,

“in light of the common economic interests of both the Israeli and Palestinian parties and the prolonged period of occupation. In that context, it shall be noted that considering the significant delay underlying the petition, in light of the many years during which the Quarries have been operating in their current format and the harm that could be inflicted should the requested remedy be granted, the Petitioner had an especially heavy burden while attempting to establish its arguments. However, it seems to us that the aforementioned array of aspects displays before us a reality that is far more complex than the one presented by the Petitioner and by its strict interpretive stance […] we have found that the State’s revised position in regard to the operation of the Quarries in the Area does not constitute a cause for our intervention therein. The petition is therefore dismissed” (paragraph 13 of the judgment).

The Israeli HCJ and Israel’s administration of Palestinian territory

The interpretation of the ‘usufruct rule’ adopted by the Court effectively dons the Israeli authorities’ exploitation of Palestinian natural resources for benefit of Israel’s private market with a mantle of legality. In doing so, it offers a selective interpretation of the rule by disregarding a fundamental and irreconcilable underlying premise of the law of occupation, which requires that the Occupying Power act in the benefit of the local population. As such, the Quarries judgment recalls the work of Ben-Naftali on the illegality of the territorial regime maintained by Israel in Palestinian territory, which demonstrates that law is implicated in maintaining Israel’s practice of blurring boundaries by unlawfully exercising sovereign rights in territory where it is not a legitimate sovereign by systematically exceeding the limits of the law of occupation.

In exploring the application of international law by the Court, we should not forget the curious context in which the HCJ performs its judicial role; that in which the Israeli government, in particular its Ministry of Foreign Affairs, has consistently rejected the position that Palestinian territory is occupied, whilst the HCJ has applied only the humanitarian provisions of the Geneva Conventions (as opposed to applying the law of belligerent occupation en bloc). As such, the HCJ’s judicial review of the Israeli authorities’ acts has often consisted of so-called ‘dynamic’ interpretations of the law that the Court effectively tailors to the needs of the State. In doing so, whilst the Court appears to be applying international humanitarian law, it is undermining and violating its essential tenets. The Quarries judgment is a case in point for the Court’s practice of deferring to and being an apologist for the executive power. Whilst progressive, innovative interpretations of international law are sometimes necessary and should therefore be welcomed, these must fulfill and be vetted by a set of criteria that includes a guarantee of good faith in the application of the law. The Court’s long-standing practice, in an inherently imbalanced context where the Occupying Power’s national judicial authority receives petitions from the enemy population, arguably affirms its inability to fulfill these criteria.