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Date posted: February 11, 2008
By Caelum Moffatt for MIFTAH

The innocent civilians in the Gaza Strip are currently experiencing what it is like to be the sacrificial byproduct of a power struggle and subsequently relegated to a political expedient. While Egypt, Hamas, the PA and Israel all exchange rhetoric of warnings and consequences, expressing their opinions in conference halls and on camera, the 1.5 million residents in the coastal strip are the ones paying the price for their respective standpoints.

The border, which was forced open on January 23 and stayed open for nearly two weeks in order for Palestinians to replenish their supplies, has now been closed. The blockade has now resumed. OCHA [The Office for the Coordination of Human Affairs] reports that since January 18, only 32 trucks have been allowed to deliver supplies into Gaza a day, whereas prior to Hamas’ takeover in June 2007, 250 trucks used to make the journey into Gaza daily. The World Food Program has stated that it has been unable to reach 84,000 of its usual relief recipients. In addition, out of Gaza’s six crossing points, while Rafah and Erez are reserved for the transportation of people [in reality, the restriction of movement is a far more apt description], Karni, Sufa and Kerem Shalom crossings have been closed while Nahal Oz is only permitting 75% of Gaza’s electricity requirements. The Al Nuseirat power plant, the only one in the whole of Gaza and completely dependent on Israel for fuel, is operating on 55 megawatts out of a possible 80 megawatts. The plant therefore consumes every drop that is transported leaving nothing in reserve. Rafiq Maliha, a project manager at the power plant, mentions that Gaza is receiving 10% of its fuel needs across the board which is leading to cuts of about eight hours a day. OCHA also highlight how only 50% of Gaza residents have running water, 80% of Gazans live under the poverty line and are completely dependent on aid while unemployment has reached nearly 40%.

To describe this situation as dire is almost an understatement. It is therefore bemusing to hear the response of Israel’s senior authoritative body, the Supreme Court, when approached by ten Israeli/Palestinian human rights organizations pleading for Israel to relieve the Palestinians from this “collective punishment”. On January 30, the same day the Winograd report judged Israeli Prime Minister Olmert to be almost blameless in his actions during the Second Lebanese War, the Supreme Court extended Olmert’s government the same privilege with respect to the humanitarian situation in Gaza.

According to the Israeli Supreme Court, Gaza is “controlled by a murderous terror group which operates incessantly to strike the state of Israel and its citizens and violates every precept of international law with its violent actions”. Representatives from Gisha and Adalah, the two leading human rights organizations in the case, rebutted, warning that the outcome is a “dangerous legal precedent that allows Israel to continue to violate the rights of Gaza residents and deprive them of basic humanitarian needs in violation of international law”.

Following Hamas' seizure of the Gaza Strip in June 2007, Israel decided to take action against the "terrorist group" by adopting disciplinary measures, ostensibly for the sake of Israeli security. These petitioners accused the respondents, Prime Minister Olmert and Defense Minister Barak, of neglecting their obligations as the Occupying Power, imposing a policy of "collective punishment" on innocent Palestinians and generally violating the stipulations of international humanitarian law.

In refutation of the accusation, the Office of the State Attorney in the Ministry of Justice [the body representing the respondents] has declared that since the "Disengagement Plan" of 2005, Israel no longer occupies Gaza and therefore is only obligated to uphold a "minimum standard" for Palestinians and supply "vital humanitarian needs". The State has insisted and reiterated on countless times throughout the trial that it is has no intention of allowing a humanitarian crisis to unfold in Gaza.

The petitioners, on the contrary, maintain that Israel still "occupies" Gaza and therefore has a duty to adhere to and implement international law with particular emphasis on the civilian population. The petitioners have also called into question the definition of "minimum standard" and what exactly this requirement entails. In addition, the human rights groups attest that Israel knowingly delivers supplies below their self imposed and valuated quota. If this is indeed true, it implies that Israel is committed to pursuing a policy of extinguishing the threat in Gaza by using the principle of the "greater good". If to dispose of the governing body in Gaza, Israel has to impose dire humanitarian conditions, the outcome far outweighs the method one must undertake to achieve that goal – even if the methodology does revolve around the "collective punishment" of innocent Palestinians in Gaza. Such action would be an infringement on Article 31 of the IV Geneva Convention which prohibits any physical or moral coercion of a civilian population.

The human rights groups have been lobbying laboriously since September in the hope of making the conditions in Gaza more transparent so that justice can prevail. Unfortunately, they share the same fate as Siphysus, the mythical Greek figure who was punished by the gods and ordered to push a boulder up to the top of a mountain only for the same boulder to return to the bottom after every attempt. Similarly, the petitioners present their case; the respondents delay their response and then counter the accusation, sometimes without sufficient proof or affidavits [state officials called were not aware how much electricity Israel provides Gaza or how much it intended to cut]; the petitioners then disprove the information submitted [which is difficult in itself taking into account that first hand experts in energy from Gaza such as Dr. Rafiq Maliha and Nedeal Toman could not attend the hearing] and patiently wait to hear a retort which comes in the form of more sweeping statements to which the petitioners must go back and challenge. While the process is delayed, the atrocities continue.

The components of the case are intricate and detailed but the main lines of contention are encompassed by and oscillate around Articles 33 and 55 of the IV Geneva Convention. In both these points, the same issue of "occupation" is raised. Israel claims it is no longer an occupying power and therefore can absolve itself from international responsibilities embedded in the 1949 signed agreement. However, occupation extends further than military and civilian presence or simply “possession of land”. As has been stressed by the petitioners, Israel still controls all the borders, the airspace, the sea, the population registry and the tax revenues. In addition, the capability of the residents of Gaza to produce their own electricity is severely limited and Gaza cannot import industrial diesel to operate the power station or import petrol to operate hospital generators and water pumps because Israel forbids the entry of goods into Gaza from anywhere except Israel. As a result, Gaza is unequivocally reliant and dependent on Israel, greatly affected and subjugated by Israeli actions in a way which can only be explained by “occupation”.

Article 55 states that “to the fullest extent of the means available to it the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate”.

Israel is blatantly disregarding this obligation. On February 7 with the approval of the Supreme Court, the Israeli government continued its economic crippling of Gaza. The military reduced the power supply by 5% on three of ten lines supplying electricity to Gaza from Israel’s Electric Company. The eventual total cut will amount to 1.5 MW. This action is taking place despite the severe cuts of 25 MW already applied by Israel on Gaza’s electricity supply. Gaza’s power plant is running below 70% already and there is a 20% electricity deficit due to cuts in industrial diesel disrupting the functioning of hospitals, the sewage systems, water pumps and other services. Is this what the Israeli government and now the Supreme Court constitutes as maintaining and providing “vital humanitarian needs”?

The petitioners can only watch on and condemn the action. “This new electricity cut will worsen the punitive measures taken against civilians in Gaza, in violation of international law”. But, are not the economic sanctions integral to preserve Israeli security? Or so Israel says. As early as November, respondents admitted they are not properly balancing the needs of the civilian population in the Gaza Strip with the security of the State of Israel. Furthermore, the respondents conceded that they were aware through their past and future actions harm innocent civilians.

Article 33 clearly states that “no protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited”. So how can the Supreme Court condone such actions in sheer disrespect for international law? By condoning the Israeli government, they are just as responsible for the crimes and the misery inflicted on innocent Palestinians, a strategy inspired by the supposed “lack of alternatives” available to Israel in stopping Hamas.

High-ranking Israeli officials don’t even shy away from their intentions concerning Gaza when speaking in public. Internal Security Minister Avi Dichter declared that Hamas must be “stopped irrespective of the cost to the Palestinians”. One of the accused, Defense Minister Barak, openly proclaims that “we increased and will increase the pressure [on Gaza]”.

How does one respond to such collectively blind devotion to a cause? The blockade has been opposed by world leaders, various departments within the UN and representatives of the EU, to name a few, but they have once again failed to exert pressure on Israel and protect the innocent civilians they pledged to defend. Israel has proved, as it has countless times before, that they are the overriding authority when it comes to matters of Israel and they will not waver or succumb to objections to their policies.

Amidst this international incompetence, is there an alternative avenue, other than the Israeli Supreme Court, available to groups wishing to contest Israeli actions? This topic has been debated thoroughly and the other potential option raised is the implementation of the principle of universal jurisdiction established under Article 146 of the IV Geneva Convention, reserved for grave breaches of the Convention. Universal jurisdiction would allow for the case to be brought before the courts of other High Contracting Parties. However, some experts view this motion skeptically claiming that in the hope for a solution, one tends to cling to the only rational alternative, no matter how distant and unrealistic. They highlight that due to the political implication related to the effective application of such a principle, often concealed by a matrix of procedural rules which allow for a highly discretionary application of the jurisdiction in case of contraventions of the Geneva Conventions, the recourse to foreign jurisdictions is far from being a concrete response. Additionally, the existing International Criminal Court cannot exercise its jurisdiction over the violations committed in the Occupied Palestinian Territory because Israel has refused to sign its Statute.

The human rights groups can just persevere in their endeavor to increase transparency on violations of international humanitarian law in the Occupied Territories and hope that it isn’t too late by the time someone takes notice.

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Source: MIFTAH
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