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Sunday, June 17, 2012

Plunder of Palestinian natural resources is "corporate war crime,"

Plunder of Palestinian natural resources is "corporate war crime," manual explains

Adri Nieuwhof

Vast areas near the occupied Dead Sea are closed off by Israel as "military area" (Who Profits, October 2010)

June 15, 2012

WhoProfits, a research project of the Coalition of Women for Peace, has documented corporate plunder of natural resources in the occupied West Bank. For example, Israeli cosmetics firm Ahava’s extraction of mud from the occupied Palestinian Dead Sea and HeidelbergCement and Cemex’s role in operating quarries in the West Bank. HeidelbergCement and Cemex headquarters are based in Germany and Mexico, respectively.
Last September, the Open Society Institute published the updated "Corporate War Crimes, Prosecuting the Pillage of Natural Resources," a manual written by law professor James G. Stewart. The manual is useful for lawyers, rights organizations and Palestine solidarity activists to explore options to hold business representatives to account for their role in the plunder of Palestinian natural resources.

Natural resources in the West Bank are owned by the Palestinian people

Sovereignty over natural resources and the right to self-determination are closely tied. The Palestinian people unquestionably have the right to self-determination. The League of Nations already affirmed this right in 1917 and the International Court of Justice (ICJ) did so in its 2004 authoritative legal opinion on Israel’s wall built on occupied Palestinian land. The ICJ also found that "Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law."
The UN General Assembly declared that sovereignty over natural wealth and resources is a "basic constituent of the right to self-determination" by adopting Resolution 1803 in 1962. The UN Security Council affirmed peoples’ rights to natural resources on several occasions.
By granting companies permits to extract natural resources in the occupied Palestinian territories for the benefit of Israel and the companies, Israel disregards its international obligations. Moreover, Ahava, HeidelbergCement and Cemex have conscientiously requested Israel army’s civic administration - the occupying power - for permission, instead of the owners – the Palestinians.

Ahava, HeidelbergCement and Cemex extract Palestinian natural resources

WhoProfits has documented the extraction of Palestinian natural resources by Israeli cosmetics firm Ahava and multinational building materials industries HeidelbergCement and Cemex.
Ahava operates an excavation site on the shores of the occupied Dead Sea to extract mud for its products. In a letter of 26 April 2011, the Israeli army’s civic administration informed Who Profits that it had granted Ahava a license for operating a site for collecting mud from the occupied area of the Dead Sea for commercial uses. Ahava received the license in 2004 and has been operating the excavation site ever since. The company is selling its products containing stolen Dead Sea minerals in Ahava flagship stores in Germany, Hungary, the Philippines, Korea and Singapore.
The multinational building materials industries HeidelbergCement and Cemex from Germany and Mexico, respectively, are involved in the operation of quarries in the occupied West Bank.
HeidelbergCement’s subsidiary Hanson Israel operates the Nahal Raba quarry in the West Bank near the green line — Israel’s internationally-recognized boundary with the occupied West Bank — and Kfar Qasim, a Palestinian village in Israel.
Cemex owns fifty percent of Yatir Quarry through its subsidiary ReadyMix Industries. The Yatir quarry lies next to the Israeli settlement of Teneh Omarim in the south Hebron hills of the West Bank.
In May 2011, The Electronic Intifada documented the transportation of construction material from Yatir and Nahal Raba quarries in the occupied West Bank into Israel.

International law prohibits plundering of natural resources

In his manual, Stewart writes that the laws of war protect property against pillage during armed conflict. In the Hague Regulations of 1907, two provisions stipulate that "the pillage of a town or place, even when taken by assault, is prohibited," and that "pillage is formally forbidden." According to an interpretation by Julius Stone, "wasteful or negligent destruction of the capital value, whether by excessive cutting or mining or other abusive exploitation" by the occupying state in the territory it occupies is "contrary to the rules of good husbandry," Stone is recognized internationally for his expertise in international law. In addition, the Geneva Conventions of 1949 reaffirmed that "pillage is prohibited."

ICJ sets important precedent in case of illegal occupation of Namibia by apartheid South Africa

The South African apartheid regime illegally occupied Namibia for decades. The ICJ set an important precedent in its 1971 Advisory Opinion on South Africa’s presence in Namibia. Stewart refers to the Namibia Opinion in his manual by quoting the Court’s conclusion, "[O]fficial acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory." Therefore, attempts by the apartheid South African regime to grant title in Namibian natural resources were "illegal and invalid," because the expropriation of natural resources is not analogous with registering births, deaths, and marriages.
Moreover, one of the judges on the case explicitly confirmed this interpretation in a separate opinion by adding that "other States should not regard as valid any acts and transactions of the authorities in Namibia relating to public property, concessions, etc." The UN Security Council and United Nations Council for Namibia, later confirmed this view.

Palestinian natural resources exploited for the benefit of Israel and companies

Stewart presents in his manual also the argument that non-renewable resources can be exploited by an occupying army, provided that the money from these sales is spent exclusively on the humanitarian needs of the local population.
However, this is certainly not the case with Heidelberg Cement and Cemex. The Israeli daily Haaretz reported that Israel’s state comptroller revealed in its annual report for 2005, that although any royalties from the quarries should be used for the benefit of the Palestinian population, they were paid into the Israeli state treasury instead ("Digging up the dirt," 3 September 2010).
In the case of Ahava, part of the profit will directly flow into the settlements of Mitzpeh Shalem and Kalia. The kibbutzes in these illegal settlements in the West Bank own 37% and 7,5% of Ahava, respectively.

Israel accelerates exploitation of Palestinian quarries after it occupied the West Bank

Stepping up the extraction of natural resources in war zones or conflict areas is a characteristic of the war crime of pillage. Until the early 1970s only two Palestinian quarries had existed in the area, according to Haaretz. The Israeli daily reports that Israel’s stone and gravel quarries in the West Bank came into operation in the early 1970s.
Israel’s plundering drew the attention of the UN General Assembly in 2010, expressing "its concern at the exploitation by Israel of the natural resources of the Occupied Palestinian Territory," and called upon Israel "not to exploit, cause loss or depletion of or endanger the natural resources in the OPT." It also recognized the right of the Palestinian people to claim restitution as a result of any exploitation, loss or depletion of, or danger to, their natural resources.

Business representatives can be held to account for plundering

Criminal courts are capable of prosecuting business representatives for pillage perpetrated during the course of commercial activities in a conflict zone, writes Stewart in his manual. After the Second World War, the Nuremberg Tribunal ruled that "[i]nternational law… binds every citizen just as does ordinary municipal law." The Tribunal concluded that crimes against international law "are committed by men, not by abstract entities," to ensure that the corporate structure did not shield business representatives from individual criminal liability. It contributed to broad consensus that the laws of war bind individuals.
Stewart argues that perpetrating, aiding, and abetting or instigating pillage of natural resources renders individual business representatives guilty of a war crime. He mentions that for example Germany, home country of HeidelbergCement, the 2002 Code of Crimes against International Law states that "Whoever in connection with an international armed conflict or with an armed conflict not of an international character pillages or, unless this is imperatively demanded by the necessities of the armed conflict, otherwise extensively destroys, appropriates or seizes property of the adverse party contrary to international law, such property being in the power of the perpetrator’s party, shall be punished with imprisonment from one to ten years."
The boycott, divestment and sanctions movement has exposed the complicity of a number of multinational corporations in the Israeli occupation, alerting investors to the incompatibility with corporate social responsibility. In addition, Ahava has been targeted by the movement with protests and a boycott and protests.
The manual "Corporate War Crimes, Prosecuting the Pillage of Natural Resources" provides an additional tool. It can be used by lawyers, rights organizations and Palestine solidarity activists to explore options to hold business representatives to account for their role in the plunder of Palestinian natural resources.

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