HCJ 2164/09 – Yesh Din – Volunteers for Human Rights v the Commander of the IDF Forces in the West Bank

In a groundbreaking case, in 2009 Yesh Din petitioned the High Court of Justice (HCJ) to demand all mining and quarrying activities being conducted by Israel in the West Bank be halted. The petition claimed that mining natural resources in the West Bank for the State of Israel’s own use is illegal. The petition was based on a study conducted by the Coalition of Women for Peace and published on the website “Who Profits from the Occupation”

In the petition, Yesh Din presented a document issued by the Interior Ministry that testifies to the fact that 75 percent of Israeli quarrying output in the West Bank is transferred into Israel for use by the Israeli construction industry. As stated in the petition: “This petition addresses the illegal practice of brutal economic exploitation of the occupied territory for the exclusive economic needs of the occupying power in flagrant violation of fundamental principles of international law…a crime committed on West Bank land with every stone and gravel extracted from the belly of the earth and transferred in trucks to Israel’s sovereign territory for the benefit of Israel’s economy. Under international law, this type of activity constitutes a violation both of the laws of a belligerent occupation and international human rights law, and in certain cases is even defined as pillage.”

The petition referred to the Krupp Trials after World War II, regarding German industrialists, in which the tribunal established that the use of natural resources from an occupied territory for purposes other than security needs or the welfare of the occupied population is a crime against humanity.

As a result of the petition, the State announced in May 2009 that it would freeze all land allocation proceedings for purposes of quarrying in the West Bank, and that it would prohibit expansion of existing quarries. The State Attorney announced that staff work was being undertaken in order to examine the legality of quarrying work by Israeli companies. In May 2010 the State published a comprehensive document on its quarrying policy in the West Bank. It claimed the matter is a diplomatic issue that was discussed in interim agreements between Israel and the Palestinian Authority. As such, the Court should not interfere in the matter. The State admitted that the vast majority of quarrying outputs serves Israel, however it claimed that it was a small amount of the quarrying materials that exist in the West Bank. Nonetheless, the State committed that no new Israeli quarries would be established beyond the Green Line.

In December 2011, the HCJ rejected Yesh Din’s petition. In the ruling, then Chief Justice Dorit Beinisch wrote that mineral mining does not contradict international law. The ruling also determined that cessation of mining activities could cause severe damage to quarry-owners, the Palestinian population and economy.

In January 2012 Yesh Din submitted a request for a further hearing with a broader panel of judges (FHCJ 316/12) given the far-reaching consequences of the ruling regarding Israeli occupation of the West Bank. This petition states that, “the Court’s decision is a revolution in international humanitarian law (the laws of occupation) in its ruling that the State of Israel, as an occupying power in a prolonged occupation, has the authority to grant Israelis and Israeli corporations the right to quarry natural resources, including in quarries that did not exist prior to the occupation – with only limitation being reasonable use of the natural resource.”

In an unusual expert legal opinion, Israeli experts in international law (Prof. Eyal Benvenisti, Prof. Orna Ben Naftali, Prof. Barak Medina, Prof. Yuval Shani, Dr. Guy Harpaz, Dr. Amichai Cohen and Dr. Yael Ronen) determined that the HCJ’s ruling contradicts fundamental principles in international law. The experts specified that, inter alia, the “occupation is temporary, and the occupying power must maintain a status quo in the territory under its trusteeship (unless deviation from the status quo is imperative). If the temporary commander operates ties between the “occupier and occupied,” as determined in the ruling, this could collapse the anchors of the laws of occupation (temporariness, trusteeship and status quo), and all this implies.”

In July 2012, Justice Eliezer Rivlin rejected the request for a further hearing. “The learned opinion raises important questions and analyzes them most skillfully and eruditely. However, in the concrete circumstances of this case, since no precedent was set in the decision that justifies a further hearing, there is no need to discuss them at this stage,” he wrote in his decision.

Petition Status: The petition was rejected