Memorandum submitted by Al-Haq
Humanitarian Situation in the Gaza Strip: The
Recent Decision by the Israeli High Court of Justice to Allow
Continued Fuel and electricity Cuts[5].
1. Since Hamas became the de facto authority
inside the Gaza Strip after a violent takeover in June 2007, Israel
reinforced already severe movement restrictions by closing all
of Gaza's crossing points to people and goods, with few exceptions.
These closures were supplemented, from October 2007, by the reduction
of fuel and electricity supplies to the Gaza Strip from Israel,
culminating in a total power outages, and jeopardising the delivery
of essential medical and sanitation services.
2. Due to the near total closure of the
borders since June 2007, the economy of the Gaza Strip has now
collapsed, with unemployment at over 40% and 80% of the population
relying on humanitarian aid. Today, 70% of households live on
less than £1 per day, well below the poverty line.
3. The cuts in electricity and fuel supplies
has had a huge impact on Gazan civilians' daily lives. The Gaza
Strip is facing a deficit of 20% of its electricity needs resulting
in power outages of eight to 12 hours every day, including in
hospitals. As the fuel import is also reduced, electricity generators
cannot be used for long periods of time. Also due to the fuel
cuts, approximately 30% of the population does not have running
water and 40-50 million litres sewage continues to pour into the
sea daily.
4. The current crisis in the Gaza Strip
prompted a group of eight international NGOs to describe the situation
of the 1.5 million Palestinians living in the Gaza Strip as "worse
now than it has ever been since the start of the Israeli military
occupation in 1967."[6]
5. In response to Israel's decision to cut
fuel and electricity supplies ten Israeli and Palestinian human
rights organisations, including Al-Haq, filed a petition[7]
on 28 October 2007 with the High Court of Justice (HCJ) calling
for an injunction against the State's cuts on electricity and
fuel supplies to the Gaza Strip.
6. On 30 January 2008 the HCJ rejected the
petition, and declared in poorly argued terms an end to Israel's
"effective control" of the Gaza Strip, and thereby the
end of Israel's occupation and its obligations under international
humanitarian law to the civilian population therein. The Court
then proceeded to rule that the implementation of reductions in
the supply of fuel and electricity to the resource dependent Gaza
Strip were lawful according to Israel's "humanitarian"
obligations under international law. The HCJ further accepted
the State's assertion that under the laws of armed conflict, such
obligations require no more than "the minimum humanitarian
needs" of the civilian population be met, and adopted the
government of Israel's extremely narrow interpretation of the
requirements of "the minimum." These finding represent
a flawed interpretation of international law with grave humanitarian
consequences.
7. Under international law the test for
occupation is "effective control," which exists if the
occupying power "has a sufficient force present, or the capacity
to send troops within a reasonable time to make the authority
of the occupying power felt." Israel has repeatedly demonstrated
its capacity to meet this requirement to disastrous effect. Furthermore,
Israel retains full control of the Gaza Strip's land borders,
population registry, airspace and territorial sea. These facts
establish that the Gaza Strip remains an occupied territory, along
with the West Bank, including East Jerusalem.
8. The HCJ decision goes against the near-unanimous
position of the international legal and political community. Indeed,
as recently as 22 January 2008 at the 5824th meeting of the UN
Security Council Mr. Lynn Pascoe, UN Under-Secretary-General for
Political Affairs, confirmed that the Gaza Strip is still occupied
by Israel: "I must state firmly that the Israeli occupation—including
with respect to Gaza—carries clear obligations under international
law."
9. As an Occupying Power under international
humanitarian law, Israel must not render useless objects indispensable
to the survival of the civilian population, and must provide for
the basic needs of the civilian population, including food and
medical supplies where the resources of the occupied territory
are inadequate. Similarly the Occupying Power must seek ensure
the proper functioning of medical, public health and hygiene services.
Far from meeting these obligations, Israel's current policy in
the Gaza Strip amounts to collective punishment of the civilian
population of the Gaza Strip as prohibited under international
humanitarian law.
10. In rendering a decision allowing the
fuel and electricity cuts to continue, Israel's highest judicial
body effectively stripped the civilian population of the Gaza
Strip of the protections provided under international humanitarian
law, and limited Israel's obligations exclusively to those rules
related to ongoing hostilities. In light of the severe distortions
of Israel's international legal obligations in relation to the
civilian population of the Gaza Strip, the decision can only be
viewed as a politically influenced endorsement of Israel's policy
of collective punishment.
11. The endorsement of collective punishment
of the civilian population of the Gaza Strip by the Israeli HCJ
only further feeds the impunity with which the Israeli government,
as an Occupying Power, carries out clear violations of international
law. This impunity, and the deficit in the provision of humanitarian
aid, essential services and basic protections, must be a primary
concern of those working tirelessly to assist the beleaguered
civilian population of the occupied Gaza Strip.
12. Al-Haq therefore urges the Select Committee
to include the following recommendation in its report under the
heading "The Israeli High Court of Justice,".
— Concerned agencies must bring Immediate
diplomatic pressure to bear on the government of Israel, and in
particular the Ministry of Justice, to explicitly clarify how
the current policy adopted in relation to the civilian population
of the Gaza Strip does not constitute a violation of Israel's
obligations under international humanitarian law.
5 All statistics in this brief note a drawn from a
recent short study by development and human rights agencies entitiled,
The Gaza Strip: A Humanitarian Implosion, found at http://tinyurl.com/yqrvyp
(accessed 14/03/08) Back
6
Ibid., page 4. Back
7
Unoffical translations of rekevant documents are on file at Al-Haq,
and can be obtained upon request. Back
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