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

Published on February 7, 2012        Author: 

 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).

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Filed under: EJIL Analysis, Israel, Occupation