26 Jul Can Israel Cut Off Water and Power to Gaza?
That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):
Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights duties. Thus, Israel cannot be held to a duty to supply.
Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):
Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.
The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion. First, contra Bell and going beyond the group of experts, he believes that Israel continues to occupy Gaza (p. 2):
For the purpose of answering the question posed, the question whether the Gaza Strip constitutes territory occupied by Israel is decisive…. It should be taken into account that the withdrawal was not as complete as it should have been in order to terminate Israel’s position as an occupying power. Israel continue to control access to Gaza from land (except for a relatively short border line with Egypt, which however was closed pursuant to an understanding between Israel and Egypt), from the sea and from the air. Israel, thus, remained in full control of the lifelines of the Gaza Strip. It is submitted that this is at least equivalent to a de facto control which, according to Art. 42 of the Hague Regulations, is constitutive for an occupation. If this argument is accepted, the cut of electricity and water supply would be a violation of Israel’s duty to provide for the welfare of the population.
Second, like the group of experts, Bothe believes that Israel does not have to formally occupy Gaza in order to have a positive obligation to provide it with water and power. The argument is dense; here is a key paragraph (p. 3):
The situation of the Gaza Strip is special. At least on the basis of a first search, there are indeed no cases concerning the duty of a party to a conflict to provide water and electricity to the other side. In such a case, the argument that everything is permitted in the absence of a specific practice is incorrect. The solution has to be found in applying general principles which form part of customary law. The principle underlying the customary rules concerning relief is to ensure that the basic needs of a population continue to be met under the conditions of an armed conflict. The supply cuts discussed here would… infringe that basic principle.
For my part, I find Bell’s report unconvincing. He simply denies, for example, that electricity is a “necessary humanitarian good under the laws of war” — a claim that both the groups of experts and Bothe effectively critique. Indeed, he bases that argument, at least in part, on a flawed understanding of when power plants can be targeted during an armed conflict (p. 4):
However, there is a widespread practice of targeting electric plants during wartime” and the practice is supported by statements of the International Committee of the Red Cross. It follows that electric plants do not enjoy special protection in war, and electricity is not a specially protected humanitarian good. Indeed, it would be paradoxical to say that a state is permitted to destroy the enemy’s electric plants, but is required to supply its own electricity to the enemy.
As the group of experts notes, Bell critically misstates the ICRC position. According to the ICRC, a power plant is a legitimate military objective only when it is used “mainly for military consumption” — which is clearly not the case in Gaza. Moreover, even if the ICRC position is too restrictive, both the group of experts and Bothe point out that Bell’s argument erroneously ignores the fact that the destruction of dual-use objects is subject to the principle of proportionality. That’s critical to whether Israel can cut off electricity to GAza, because Bothe notes (p. 4) that “in view of the malfunctioning of the one and only power plant due to damage or lack of fuel, supply by Israel is the only means to avoid the effects which the prohibition of disproportionate collateral damage is meant to exclude.”
(As an aside, Eric Posner parrots Bell’s erroneous claim in a recent blog post. With his typical disregard for the complexity of IHL, Posner writes that “international law does not bar a belligerent from cutting off electricity. Indeed, a belligerent is free to bomb the power plants of its enemy, as the United States has recently done in Iraq and Serbia.”)
There is much more in the reports, and I would encourage readers to read all three of them carefully. This is an important debate — because an untold number of Palestinian lives quite literally hang in the balance.