Israel is obligated to supply electricity to the Gaza Strip

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.[1] 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.[2]

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.[3] 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[4] 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.[5] 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[6] 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.[7]

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:[8]

“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.[9] 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,[10] 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,[11]  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[12] and international law.[13] The fact that it is not specifically enumerated in the conventions to which Israel is a party is of no relevance.[14] 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.[15]

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.

 

Footnotes:

[1] HCJ 9132/07 al-Basyuni v. Prime Minister of Israel, paras. 21-22, (published in Nevo, January 30, 2008), English translation by the Supreme Court available at:http://elyon1.court.gov.il/Files_ENG/07/320/091/n25/07091320.n25.pdf. The 5% cut in the Israeli supply of electricity to Gaza that was discussed in al-Basyuni was permitted since the court found it did not impede the essential humanitarian needs of Gaza residents. The recent cut amounts to 40% of Israel’s supply. See, http://www.haaretz.com/israel-news/.premium-1.795198.

[2] Yuval Shany, The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v.The Prime Minister of Israel, 42(1) ISR. L. REV. 101 (2009); Shane Darcy and John Reynolds, An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law, 15 JOURNAL OF CONFLICT & SECURITY LAW, 211, 229-232 (2010); YORAM DINSTIEN, THE INTERNATIONAL LAW OF BELLIGERENT OCCUPATION, 279 (2009).

[3] ICRC, Commentary of 1987, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, p.812.

[4] ICRC, Updated Commentary of 2016, the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, paras. 307-313; Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to Human Rights Council Resolution S-21/1, A/HRC/29/CPR.4, 24 June 2015, paras.26-30.

[5] This doctrine is referred to as the functional approach to occupation. It was developed by professor Aeyal Gross. See, Gisha, Scale of Control: Israel’s Continued Responsibility in the Gaza Strip, November 2011, https://gisha.org/UserFiles/File/scaleofcontrol/scaleofcontrol_en.pdf; Aeyal Gross, “Rethinking Occupation: The Functional Approach”, Opinio Juris (April 23rd, 2012), http://opiniojuris.org/2012/04/23/rethinking-occupation-the-functional-approach/.

[6] Gisha, Hand on the Switch – Who’s responsible for Gaza’s infrastructure crisis?, January 2017,  https://gisha.org/UserFiles/File/publications/infrastructure/Hand_on_the_Switch-EN.pdf.

[7] One might ask how Libman escaped a similar conclusion given his assertion that: “The combination of the fact that Israel is the main supplier of electricity to the Gaza Strip and its ability to prevent the construction or expansion of Gaza’s electricity production systems spells functional control in this area, which carries with it responsibilities toward the people who under this control – electricity consumers in Gaza”.

[8] HCJ 1169/09 Legal Forum for Israel v. Prime Minister, para. 21 (published in Nevo, June 15, 2009).

[9] Libman refers to the Oslo Accords, but the only thing stipulate in these agreements is that preexisting arrangements regarding the supply of electricity from Israel to Palestinian Authority territories, including Gaza, would continue. The agreement does not say supply would end if there is no payment. Libman also refers to Israeli legislation, such as the Electricity Law, and Israeli jurisprudence on the supply of water, but these are irrelevant to the relationship between Israel and Palestinian residents.

[10] Benjamin Rubin, “Disengagement from the Gaza Strip and Post-Occupation Duties”, 42 ISR. L. REV., 528 (2010)

[11] The application of human rights law to the relationship between Israel and the Gaza Strip after disengagement, even if only differentially, was posited by Prof. Yuval Shany; Shany, supra note 3; Yuval Shany, “Faraway, So Close: The Legal Status of Gaza after Israel’s Disengagement”, 8 Y. INT’L HUMANITARIAN L. 369 (2005); Yuval Shany, “Taking Universality Seriously: A Functional Approach to Extraterritoriality in International Human Rights Law”, 7 LAW & ETH. HUM. RIGHTS 47 (2013).

[12] CC (Haifa) 19120-03-14 Yilizrov v. Israel Electric Corporation LTD (published in Nevo, decision dated July 13, 2014), CC 13054-11-13, Abu Jabal v. Israel Electric Corporation LTD (published in Nevo, decision dated February 5, 2014). An appeal filed in this file did not address the status of the right to electricity (LCA (Haifa) 16557-03-14 Israel Electric Corporation LTD v. Khaled Abu Jabal  (published in Nevo, decision dated May 25, 2014).

[13] The Right to Adequate housing (Art. 11.1),13/12/1991, CESCR General Comment 4.

[14] This assertion is, in fact, inaccurate. Article 14(2)(h) of The Convention on the Elimination of all Forms of Discrimination against Women explicitly states that the supply of electricity is a prerequisite for the fulfilment of women’s right to adequate living conditions.

[15] See supra note 12, and The International Covenant on Economic, Social and Cultural Rights, art.11(1) and 12; The Right to the Highest Attainable Standard of Health (Art. 12): 11/08/2000.E/C.12/2000/4, CESCR General comment 14.