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      High Court: Israel Not a 'Classic Occupying Power'

      A High Court decision about what to do with rocks from quarries throws an interesting light on the relations between Israel and PA.
      By David Lev
      First Publish: 12/27/2011, 12:00 PM

      Quarry
      Quarry
      Morguefile

      In what may be a precedent-setting decision, the High Court ruled Tuesday that the Oslo Accords and other agreements between Israel and the Palestinian Authority trumped the conception of Israel as an “occupying power” touted by the left – and that the Israeli presence in Judea and Samaria was necessary for the welfare of both Israelis and PA Arabs.

      The case surrounded a petition by far-left group Yesh Din, which had sought to force Israeli operators to close down 10 stone quarries located in Area C, which under the Oslo Accords is under Israeli civilian and security control. The quarries “export” 94 percent of their products to Israeli contractors; all of the workers in the quarries, save for several executives, are PA Arabs. It should be noted that there are numerous Arab owned quarries in Area C as well; these send 80 percent of their products to Israeli contractors. Altogether, the Area C quarries supply about a quarter of Israel's building materials.

      Yesh Din claimed in its petition that Israeli operation of the quarries was a violation of the Hague Convention on “occupying powers.” Article 55 of the convention states that “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.” The export of the product of the quarries for use in cities inside the 1948 armistice lines, as well as Area C, violated this tenet, and required the shuttering of the quarries, it argued.

      But in a surprising decision, High Court chief justice Dorit Beinisch categorically rejected the Yesh Din petition, thus accepting the arguments of the state, which said that the issue of the quarries had specifically been dealt with between Israel and the PA in a side agreement to the Oslo Accords in 1995. “The circumstances raise questions not only on the petitioners' claim that is standing up for the rights of the Palestinian population, but also attempts to portray this issue as one of international policy... while in truth the correct forum for appealing this issue is as part of the framework of the agreements between Israel and the PA – and Yesh Din is not an 'interested party' with a right to petition on these issues.”

      Because of the unique circumstances of Israel's presence in Judea and Samaria, Beinisch added, Israel could not be seen as a "classic occupying power.” The fact that Israel has had such a presence in Judea and Samaria for so long – and because it really is the only responsible entity that can take responsibility for the area – actually requires the quarries to continue operating in their current format, as closing them would violate other tenets of the Hague Convention, such as ensuring that the local population can survive and thrive financially.

      "Besides, even if one were to claim that Israel was a 'classic occupying power,' using the products of the quarries would not necessarily be a violation of Article 55, which has been interpreted to apply to opening new quarries, which is not at issue here. In any event, the agreements between Israel and the PA were the main issue here.

      “The rules of occupation require taking into account the extent of that occupation, and ensuring that economic life can continue for residents,” she wrote in her decision. The only way this can occur is via the the agreements made between the entities – in this case, the Oslo Accords and its accompanying agreements. Closing the quarries, Beinisch wrote, would not only violate the principle that the agreements between Israel and the PA were paramount, but would also throw hundreds of PA Arabs out of work, taking away the ability of hundreds of people to feed their families – and as such they can, and must, remain in operation.