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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[1]
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 8 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."[2]
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[3] 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. [1] 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) [2] Ibid., page 4. [3] Unoffical translations of rekevant documents are on file at Al-Haq, and can be obtained upon request. |