On Gaza’s electricity crisis
June 22, 2017 | By Adv. Michal Luft
In Liron Libman’s article (Hebrew), he argues that Israel is under no obligation to supply electricity to the Gaza Strip, if payment is not received for it. However, international law contains no condition of payment for supplying the humanitarian needs of an occupied territory. This is no coincidence. International law imposes obligations on countries that control foreign territories, including the obligation not only to enable residents to receive electricity, but to supply it, if there are not sufficient resources in the territory itself. The Supreme Court of Israel has acknowledged this duty, and therefore, there is no doubt that Israel’s decision to reduce the supply of electricity to the Gaza Strip due to lack of funding constitutes a breach of Israel’s obligations under international law.
In his article, Libman references the High Court’s 2008 decision in the al-Basyuni case, correctly noting that Supreme Court President Dorit Beinisch held that while Israel no longer occupied Gaza, it did have humanitarian obligations toward its residents. According to Beinisch, these obligations arise from the state of hostilities between Israel and Hamas, the degree of Israel’s control over border crossings, and the dependence Gaza residents have developed on electricity supplied by Israel over the many years of occupation. But Beinisch made another judgement, which Libman chose to ignore. She ruled that the State of Israel has an obligation to supply electricity to Gaza residents, not just to allow it to reach them. While it is true that Beinisch offered no legal source for her ruling that Israel has a positive obligation to supply electricity to Gaza residents, the ruling still stands. In fact, this was the very reason that the judgment was widely criticized.
Drawing on Beinisch’s own remarks, there are three possible sources for Israel’s obligation to supply electricity, as part of its humanitarian obligations toward Gaza residents: The laws of war (“a state of armed conflict”); the functional control-based application of the laws of occupation (“the degree of control exercised by the State of Israel over the border crossings”), and post-occupation law (“the dependence created after the years of control”). The laws of war, as Libman rightly points out, only compel a party to hostilities to allow for the passage of humanitarian commodities to the opposing side, as provided for in Article 23 of the Fourth Geneva Convention and Article 70 of the First Additional Protocol. The laws of occupation, however, obligate the occupying power to supply humanitarian commodities to the occupied population, if local resources are insufficient. Article 55 of the Geneva Convention refers to food and medicine, but Article 69(1) of the First Additional Protocol extended this obligation to include any means and supplies that are essential to the survival of the population. The International Committee of the Red Cross’s commentary on this article rightly notes that heat or cold can also be a cause of death, not only hunger. It is difficult not to think of Gaza residents, who receive only two hours of electricity a day, upon hearing this sentence.
Hence, the main dispute remaining is whether the laws of occupation still apply. While Beinisch held in al-Basyuni that “in general the law of occupation does not apply,” she also found that Israel does have a duty to supply electricity; a duty that, as stated, applies only with respect to occupied territory. The legal position prevalent in the international community is that Israel still occupies Gaza, given its significant and ongoing control over multiple aspects of life in the Strip. Another concept that is gaining traction in the field of international law is that, at the very least, Israel is bound by the provisions of the laws of occupation that relate to the powers and functions it continues to employ vis-à-vis Gaza residents. As such, if Israel still controls the supply of most infrastructure services to Gaza residents, as well as the entry of humanitarian items and all other types of goods into the Strip, including fuel, then it is obligated under the law of occupation to supply the amount of electricity required by Gaza, inasmuch as resources in the Strip fall short.
Incidentally, neither conventions, and certainly not literature or jurisprudence, contain any reference to a stipulation of payment for the supply of humanitarian goods to local residents, and with good reason. Such a condition would undermine the purpose of international humanitarian law. If the item is needed to meet the basic needs of the population, and is lacking within the territory itself, the occupying or governing power is impelled to provide it. Libman, and others, might be surprised to discover that this view was held by our own Supreme Court, in a judgment it delivered some eighteen months after al-Basyuni, in the case of the Legal Forum for Israel:
“The jurisprudence of this court has addressed the duty of the Israeli administration to see to the basic humanitarian needs of residents of the West Bank and Gaza Strip on more than one occasion. Even if the Gaza Strip is currently under the control of Hamas, which has been declared a terrorist organization, it is home to residents who are in need of essential services in order to maintain a reasonable, humane quality and standard of living. Israel is required to offer assistance in order to enable the basic needs of the local population to be met, assistance without which these needs will remain unanswered.
The innocent public living in the Gaza Strip cannot remain cut off from means of subsistence and basic supply lines that are required for living with dignity. At points where securing these means require Israel’s cooperation, the Government may, and sometimes must, due to its responsibility, help get these means to their destination. This, for instance, has been ruled with respect to the supply of electricity and fuel to the Gaza Strip.”
Given these statements, it comes as no surprise that Libman does not cite a single article of international law, jurisprudence or literature to support the contention that the supply of humanitarian needs can be subjected to payment. Israel’s duty to supply electricity to Gaza’s residents is an independent duty. It does not depend on the Palestinian Authority’s requests or to its decisions on funding. As noted, in al-Basyuni, the court referred to three different sources for this obligation. Not a single one of these was the agreements signed between Israel and the Palestinian Authority. This is a duty Israel owes directly to Gaza’s residents, the people themselves. Foreign policy considerations relating to Israel’s relations with the Palestinian Authority, or with Hamas, have no bearing on this obligation.
And if the laws of war and the law of occupation do not sufficiently substantiate this duty, international human rights law is also relevant here. Libman posits the functional application of human rights law to the relationship between Israel and Gaza residents, but proceeds to claim that it is irrelevant, as there is no recognized right to electricity. However, contrary to Libman’s claim, the right to electricity has, in fact, been recognized as a fundamental right, under both Israeli law and international law. The fact that it is not specifically enumerated in the conventions to which Israel is a party is of no relevance. The right to electricity is not named as such in the Basic Law: Human Dignity and Liberty either; and still, it has been ruled a fundamental right of every individual in the state, as a derivative of the right to dignity. Such is the case in regards to international human rights law. The United Nations Committee on Economic Social and Cultural Rights has similarly held that the right to electricity is a fundamental right arising from the universal right to adequate living conditions and the right to health.
Libman’s proposal of full abdication of Israeli responsibility for the decision to reduce the supply of electricity to Gaza is troubling, and must be opposed, both as jurists and as humans. Israel’s relationship with the Gaza Strip cannot be viewed as a distant chess game. Gaza’s residents are not pawns. They are human beings living under the parallel (though not overlapping) control of the State of Israel, the Palestinian Authority, and Hamas. Given this situation, Israel has a separate and distinct obligation directly toward Gaza’s residents that is entirely non-reliant on any external factors. As such, the decision to reduce the electricity supply clearly constitutes a breach of Israel’s international obligations.
Adv. Michal Luft is a lawyer with the legal department at Gisha – Legal Center for Freedom of Movement.