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In violation of international law, the Israeli High Court gave permission to multinational companies to exploit resources off the Gaza Coast for the benefit of Israelis.

In the latter case of HCJ 5547/07 Noble Energy Mediterranean v The Government of Israel[2], a number of multinational companies were fighting over the right to exploit natural gas resources located in the seabed off the Gazan coast; gas which would provide for the demands of the Israeli market. The judgment, handed down by the Israeli HCJ on 25 December 2007, was virtually unknown among activists and organizations alike, who were focusing at the time on the High Court petition concerning the decrease in the supply of gas and electricity to the Gaza Strip by Israel. 

In their rejection of this principle-based petition, the President of the HCJ, Judge Beinisch, held in the opening paragraph of the judgment that the State of Israel is under no obligation to transfer an unlimited amount of electricity and gas to the Gaza Strip “in circumstances where some of these resources continue to sustain the terror organizations for the purpose of targeting Israeli civilians.”[3]

The HCJ in complete oblivion?

The State of Israel, acting as an occupying power, has been employing multinationals to exploit the natural gas resources of the Gaza Strip, whilst the entire Palestinian population throughout Gaza suffers from a severe shortage in petrol and cooking gas - bakeries are being shut down and cars are running on cooking oil. The prohibition on exploitation of an occupied territory’s  natural resources by the occupying power is solidly grounded in international law and has been extensively discussed in the judgment of the International Court of Justice (ICJ) in Congo v Uganda[4]. This prohibition is also affirmed by the UN Declaration on Permanent Sovereignty over Natural Resources[5] and analysed in the arbitration of Texaco Overseas Petroleum v Libya[6].

Several United Nations resolutions have addressed the Israeli exploitation of Palestinian natural resources. The UN General Assembly (UNGA) resolution 3005 (XXVII) affirmed “the principle of the sovereignty of the population of the occupied territories over their national wealth and resources.”[7] Similarly, UNGA resolution 3336 (XXIV) affirms that the exploitation of “human, natural and all other resources and wealth of the occupied territories [is] illegal.”[8] Finally, in UNGA resolution 32/161 Israel is called to cease its exploitation of natural resources in the occupied Palestinian territories, reaffirming that these resources belong to the “peoples whose territories are under Israeli occupation.”[9]

The judges examining the Noble Energy Mediterranean case did not stop to ponder on what grounds Israel bases its right to exploit the gas resources of the Gaza Strip. Such a stance was possibly taken due to its acquiesced recognition of the fact that the exploitation is done in violation of the rules of international law, which prohibit taking advantage of the natural resources of occupied territory for the benefits of the occupying power (a territory, that according to the Court's legal conceptions in the Albasyouni decision, is no longer subject to its belligerent occupation).

Selective Referencing of International law: Sidestepping the ICJ Judgment in Congo v Uganda

In its judgment in the Noble Energy Mediterranean case, the Israeli High Court mentions that exploitation of these new resources creates opportunities for the development of the gas industry in Israel, which would help meet the high demands of the Israeli market. These conclusions shed no light on the fact that such exploitation of resources is a grave violation of international humanitarian law which has been repeatedly voiced in the judgments of the ICJ at the Hague. Namely, and most recently, in the judgment of the ICJ in Congo v Uganda (19 December 2005), the Court upheld the continuing and inviolable sovereignty of a State over its natural resources during the time of occupation; this judgment was preceded by the UN Security Council's condemnation[10] of the exploitation in the Democratic Republic of Congo exactly a month earlier.

International law of occupation has clear and unequivocal rules concerning the exploitation of natural resources found in the occupied territory by the belligerent occupant. The Court found “ample credible and persuasive evidence to conclude that officers and soldiers of the Ugandan People's Defense Force (UPDF), including the most high-ranking officers, were involved in the looting, plundering and exploitation of the DRC’s natural resources and that the military authorities did not take any measures to put an end to these acts” (para. 242 of the judgement).  The Court concluded that the actions of the UPDF forces who engaged in the looting and plundering should be considered violations of jus in bello[11] under the Hague Regulations of 1907 (Art. 47) and the Fourth Geneva Convention of 1949 (Art. 33), which prohibit pillage, and the African Charter (Art. 21) which requires restitution or compensation in the case or spoliation (para. 245 of the judgement).[12]

The Sinai Oil Exploitation and Israel’s Position

Unlike many of the Israeli High Court's laconic judgments, this ruling inexplicably side-stepped the very pivotal question of the Gaza Strip’s legal status and Israel’s obligations towards its occupied population. However, a superficial historical survey attests to the fact that this is not the first time Israel has played the role of belligerent occupant abusively expropriating natural resources in occupied territory.

On 1 August 1977 Israel’s Ministry of Foreign Affairs produced a memorandum that attempted to legitimize Israel’s illegal drilling of oil fields in the Sinai Peninsula, which was developed during the occupation of that region.[13]

The memorandum begins by declaring openly that Israel boldly holds to its “rights of usufructus” to develop oil fields in occupied Sinai. According to Israel’s understanding of the applicable law, namely, Article 55 of the Hague Regulations[14], the State of Israel is authorised to exploit oil in the region but “must not contribute abusive exploitation.”[15] It claims that prevention of such exploitation, as well as the development of new wells, would delay development of the territory by a number of years. Following this logic, “the duty of the occupant is inter alia to maintain economic prosperity of occupied territory and this is met by a reasonable development of oil fields...[enhancing] the value of the land.”[16]

The memorandum from 1977 adopts a very constructive albeit flawed interpretation of Article 55 which, according to Israel, “specifically and categorically allows the Occupant to enjoy the fruits of public property” [emphasis added]. The memorandum finally notes the most impertinent of its arguments, that “the military costs of maintaining the IDF in the occupied areas...far exceed any income derived from the oil wells in question.”[17] It is only hoped that if Israel were reproached in regards to its activities in Gaza today, that some of these less ingenious arguments would not be brought forth in its defense.

The HCJ case concerning the multinational oil companies, and the parallel arguments provided in the Albasyouni decision, are not mentioned anywhere in the press. Evidence of this major ongoing scandal can only be found in older international news pieces, which don headlines regarding the joint venture of multinational companies for the exploitation of gas in the Gaza Strip region.

The EU and the UN Security Council have a prominent role to play in law enforcement and regulation in the region. Israel should be condemned internationally for its grave violations of international law regarding the exploitation of the Occupied Territory’s natural resources. The country’s blatant disregard for the pronounced international regulations has done nothing but increase Palestine’s dependency on Israeli oil supplies while continuing to sustain and advance Israel’s capitalist free market economy.