Israel’s High Court of Justice (Supreme Court) has upheld the Israeli military’s decision to tighten fuel cuts — and to inaugurate graduated electricity cuts — to the Gaza strip, in a ruling handed down on Wednesday.
The new and deeper sanctions are to start on 7 February, the military informed the Court through the state attorney on Sunday.
The electricity that Israel’s Electric Company sells to Gaza will be reduced by 5% on three direct-feed lines that have been specially fitted with a sort of dimmer that allows controlled reductions in supply.
The military had originally proposed cutting supply on four out of the ten Israel Electric Company lines that cross between Israel and Gaza.
In a plan presented a few months ago, the military also proposed to continue reducing the electricity on these lines by an additional 5% at periodic intervals, until there is a stop to attacks by Qassam rockets and other projectiles from Gaza on Israeli territory.
The Palestinian Authority has a contract to buy 120 MW of electricity daily from the Israel Electric Company, but in recent months the supply has often been somewhat less.
In statements to the Court, the military has admitted factual errors, mistakes and “local error” which resulted in cuts of directly-supplied Israeli electricity despite the Courts previous request to hold off until it reached a decision. There have also been recent “technical problems” on some of the lines.
The military also told the Court on Sunday that it believes 2.2 million liters of industrial diesel fuel per week is enough for Gaza’s power plant.
However, with that amount, the power plant can only operate two turbines at partial loads, generating only between 45-55 MW of electricity per day. And, without replenishment of the plants reserves, a shortfall on any one day could mean that the power plant would again have to shut down, as it did on 20 January for two days.
Meanwhile, because of the electricity shortfall, and the lack of ordinary diesel fuel to operate back-up and stand-by generators, 40 million liters of sewage a day have been emptied directly into the Mediterranean Sea, to avoid catastrophic flooding that could endanger human lives in Gaza.
A group of ten Israel and Palestinian human rights groups petitioned the Israeli High Court of Justice on 28 October to block the fuel cuts and the proposed electricity cuts on the grounds that they target and indiscriminately punish Gaza’s civilian population for acts committed by Palestinian fighters.
Sari Bashi, director of the human rights organization Gisha, which has taken a leading role in the petitioning, said that the court had been informed that Gaza currently has an electricity deficit of 24%, and rolling blackouts across the Strip are as long as 12 hours per day in some areas. The electricity shortage has increased the dependence on diesel-powered generators – just as Israel cut diesel supplies. The clean water supply has fallen by 30% to some areas in Gaza, and hospitals have reduced services and denied care to non-urgent cases.
The Court’s ruling on Wednesday was handed down just hours before the release of the final version of the Winograd Committee’s evaluation of Israel’s Second War in Lebanon (12 July -14 August 2006), and it is getting somewhat lost in the overall media coverage of the report, despite the shared assumptions.
The Winograd Committee report said in its conclusions that “Israel cannot survive in this region, and cannot live in it in peace or at least non-war, unless people in Israel itself and in its surroundings believe that Israel has the political and military leadership, military capabilities, and social robustness that will allow her to deter those of its neighbors who wish to harm her, and to prevent them – if necessary through the use of military force – from achieving their goal”.
Loud and persistent accusations that concerns about these cuts of vital supplies to Gaza are merely part of a manipulated propaganda war against Israel are causing even greater media reticence than usual.
According to an analysis by Gisha of the state’s presentation in Court on Sunday, “They argued that the fuel cuts are economic sanctions taken against Gaza as part of ‘economic warfare’, which was described as a life-saving alternative to a large-scale ground operation. They argued that Gaza is no longer occupied, but that even if it were, only minimal obligations are owed to its civilian population, obligations which they characterized as the duty to avoid a humanitarian crisis or to permit the fulfillment of minimal humanitarian needs. They argued that they were permitting enough fuel and electricity to provide for humanitarian needs, and that it was up to the leadership in Gaza to prioritize its distribution to give preference to humanitarian needs. They argued that they were monitoring the humanitarian situation in Gaza to make sure that basic needs were being met, and that the Defense Minister had broad discretion to wage a battle against militants in the way he saw fit”.
After Wednesday’s ruling, Gisha and Adalah said in a joint statement that: “This decision sets a dangerous legal precedent that allows Israel to continue to violate the rights of Palestinians in Gaza and deprive them of basic humanitarian needs, in violation of international law.
Bashi said after the ruling that ‘This is an unprecedented decision authorizing collective punishment in its most blatant form. The court ruling relies on unsubstantiated declarations by the military and ignores the indisputable and well-documented evidence of harm to civilians caused by the fuel and electricity cuts…”
Hassan Jabareen, Director of Adalah, said that: “According to the Supreme Court’s decision, it is permitted to harm Palestinian civilians and create a humanitarian crisis for political reasons. This constitutes a war crime under international criminal law”.
Sunday’s hearing in Jerusalem was conducted almost as if the dramatic events of the last week at the Rafah crossing between Gaza and Egypt had not happened.
Lawyers from Gisha and Adalah appeared in their black robes and argued earnestly about why Israel should not impose collective punishments on 1.5 million people in Gaza.
The equally black-robed state attorney was far more relaxed. At his side, IDF Colonel Nir Press, the head at Erez crossing of the Office of (Israeli) Coordination of Government Affairs, testified that Qassams, being fired day after day from Gaza at the Israeli city of Sderot, and a missile fired recently at Ashkelon, justified the military policy.
In his testimony, Colonel Press told the court that “the Palestinian media and Hamas leadership were distorting the facts in order to create an impression of crisis”.
The three sitting judges expressed impatience with both sides — but issued an interim order, Gisha legal adviser Kenneth Mann said after the hearing adjourned, telling the state to bring all its evidence to the court in the form of affadavits with precise information, such as who were the people who said the situation inside Gaza was ok, and which equipment was being fixed, and where.
Mann said that the judges appeared to believe that there was no humanitarian crisis if there were no physical injuries and casualties
“Gazans sitting in the cold and the dark for 12 hours or more at a time is not a humanitarian crisis for them”, he said. And what about the sewage flooding? “The judges think the Gazans can just clean it up”, he replied.
Hassan Jabareen of Adalah said after the hearing that the arguments presented by the state and the military in court “contradicts our affadavits” which contain clear and documented figures.
Fatmeh ‘Ajou of Adalah said that “the state tried to avoid the fact that they can’t refute our explanations. They used shallow arguments, such as ‘the situation is not as the petitioners are saying’. The Court is now avoiding the fact that for the last three months civilians were used as objects, despite all the public statements [by Israeli military and government officials] about the punitive purposes of such sanctions. The whole treatment of Gaza is that there is a legal vacuum”.
‘Ajou added that the judges “didn’t want us to respond to the state argument that the opening of the crossing at Rafah meant that Israel no longer had responsibility for Gaza. Judge Beinisch told us ‘No, they are not claiming that yet, they might reconsider their legal argument”.
Bashi said after the hearing that “We let the judges know that the state violated the request” for the appearance at the hearing of two Gaza professionals who are co-petitioners in the case, and who could have explained the technical details concerning the Gaza power plant and Gaza’s electricity-distributing company.
Dr. Rafiq Maliha, project manager of the Gaza Power Plant, and Engineer Nedal Toman, project manager of GEDCO, were informed that they would be given permits to participate in the Supreme Court hearing on Sunday. They arrived at the Erez terminal at 7 am. But, they said, they were not actually given the permits until the court session started at 10 am.
Despite their best efforts, and a frantic taxi ride from the Gaza border to the Supreme Court in Jerusalem, the two Gazans arrived about 20 minutes after the hearing was concluded by the judges, who decided not to wait for their arrival.
Toman has explained in several sworn affidavits presented to the Court that it is impossible to redirect electricity in Gaza. But, in Sunday’s hearing, the state attorney told the Court – without the benefit of Toman’s presence for any questioning on this precise point – that some unnamed “Palestinians” had told the military that it could in fact be done, and humanitarian damage avoided.
So, the Court has decided to be convinced by the state and military assurances that it is not the intention to cause humanitarian damage in Gaza. If there is damage anyway, it would be accidental and unintended – and therefore within the realm of legality.
The judge’s ruling noted the assurances given by Colonel Peres that the humanitarian situation in Gaza was being monitored – apparently through the military’s “regular contact with Palestinian officials and international organizations who maintain humanitarian needs in Gaza”. And, the judges suggested, any future concerns should be addressed directly “to the military officials in charge of monitoring the humanitarian situation in Gaza”.
Throughout the process, Gisha said in a post-ruling analysis, they were cut off every time they tried to argue that Gaza was still under occupation: “The judges curtailed argument on the question of what law is applicable, pressing the petitioners to address only the factual question of whether the reduction in supply of fuel and electricity planned by the military could in fact cause a humanitarian crisis”.
Gisha said that was reflected in Wednesdays ruling by the panel of judges, headed by Supreme Court President Dorit Beinish, who “instead adopted, without comment, the ‘minimum humanitarian standard’ proffered by the state, saying ‘in light of the conclusions we have reached as outlined below, and considering the state’s declaration concerning its commitment to fulfill the essential humanitarian needs in the Gaza Strip, we did not see fit, at this stage, to address the principled legal questions raised by the parties before us’.” But, Gisha believes, this “is a conclusion devoid of law”.
In an excerpt from the ruling translated from Hebrew by Gisha, the judges wrote:
“we note that since September 2005 Israel no longer has effective control over what takes place within the territory of the Gaza Strip. The military government that previously existed in that territory was abolished by decision of the government, and Israeli soldiers are not present in that area on an ongoing basis and do not direct what goes on there. Under these circumstances, the State of Israel bears no general obligation to concern itself with the welfare of the residents of the Strip or to maintain public order within the Gaza Strip, according to the international law of occupation. Israel also has no effective ability, in its current status, to instill order and manage civilian life in Gaza. Under the current circumstances, the primary obligations borne by the State of Israel with regards to the residents of the Gaza Strip are derived from the state of armed conflict that prevails between it and the Hamas organization which controls the Gaza Strip; its obligations also stem from the degree of control that the State of Israel has over the border crossings between it and the Gaza Strip; and also from the situation that was created between the State of Israel and the Gaza Strip territory due to years of Israeli military control in the area, as a result of which the Gaza Strip is at this time almost totally dependent on Israel for its supply of electricity”.
This, Gisha said, “is a dramatic departure from the court’s precedent applying the laws of occupation to Gaza and the West Bank”.
Meanwhile, this ruling also keeps pressure on Hamas, as PA President Mahmoud Abbas is in Egypt to discuss the breach in the border at Rafah. Abbas says he will not talk to Hamas until they give back Gaza. And Abbas says he wants to go back to the exact same November 2005 agreement that previously governed the Rafah crossing – an agreement brokered by U.S. Secretary of State Condoleeza Rice, who has recently seemed more flexible than Abbas on what to do about the Rafah crossing now.
On the 25th of January, the U.S. State Department spokesperson Sean McCormack told journalists that “We are confident that the Egyptians are capable of handling their own sovereign responsibilities along the border…From our perspective, it’s up to the Egyptians to determine how they would like to proceed. They’re a sovereign nation and this is their border with Gaza and ultimately it’s their responsibility”.