Introduction:

On January 30, 2008, the Supreme Court of Israel sitting as the High Court of Justice handed down a decision (HCJ 9132/07) concerning a petition regarding the Government of  Israel's decision to reduce the supply of fuel and electricity to the Gaza Strip. The Supreme Court concluded that the amounts of industrial diesel fuel and electricity that the State intended to supply to Gaza are sufficient in order to meet the current humanitarian needs of the Gaza Strip.

The Supreme Court's decision emphasized the following points:

• Since the completion of the Disengagement Plan by Israel in September 2005, Israel no longer has effective control over the Gaza Strip. 

• Accordingly, the relevant body of international law that applies to the relations between Israel and Gaza is the law of armed conflict and not the law of occupation. Israel remains bound by the obligations set out in this body of law, which require it to ensure that the vital humanitarian needs of the civilian population in Gaza are met. 

• The reduction of the supply of fuel and electricity to Gaza by Israel does not constitute collective punishment of the civilian population in Gaza. Indeed, the imposition of economic sanctions on an enemy state or entity is a legitimate means of warfare so long as the transfer of vital humanitarian goods to civilians is not impeded.

• The Court noted that the distribution of fuel and electricity within Gaza was not in Israel's control, but was managed by the Palestinian Energy Authority. Accordingly, the relevant test was whether sufficient quantities were provided to the area. The responsibility for their distribution remained with the Palestinian side.

Petitioners' Arguments:

The Petitioners argued that Gaza remains under Israeli occupation, and, as such, the laws of occupation should apply to Israel's actions vis a vis the Gaza Strip. Petitioners further argued that the reduction of the supply of fuel and electricity to the Gaza Strip constituted "collective punishment" of the civilian population in Gaza, which is prohibited under the laws of occupation.

The Petitioners maintained that the reduction by Israel of the supply of fuel and electricity into the Gaza Strip, pursuant to the 19 September 2007 Israeli Political-Security Cabinet decision (hereinafter, the "Cabinet Decision") would harm the vital humanitarian needs of the Gaza Strip. In particular, they argued, reductions of the supply of electrical power to Gaza would inevitably bring about power-outages in hospitals and at installations that pump clean water to Gaza's civilian population.  Thus, implementation of the Cabinet Decision, according to Petitioners, would be bound to cause certain, severe and irreversible harm to vital humanitarian systems in the Gaza Strip, to hospitals, to the water and sewage systems and to the entire civilian population.

The Petitioners further argued that the industrial diesel fuel that Israel would allow to enter Gaza under the Cabinet Decision would fail to meet the requirements of Gaza's power station and would not enable sufficient electricity production to suffice the needs of Gaza's residents, particularly in the winter.

The State of Israel's Response:

The State of Israel, in its response to Petitioners' arguments emphasized the following:

• Israel no longer has effective control over Gaza: Since completion of the implementation of the Disengagement Plan in September 2005, Israel has not had effective control over what takes place within the Gaza Strip: the military government that previously existed in that territory has been disbanded by means of an Israeli Government Decision; and Israeli soldiers are no longer stationed in that area and do not control what occurs there. Thus, under the international law of occupation, the State of Israel has no general obligation to care for the welfare of the residents of the Gaza Strip or to maintain public order there. Moreover, in practice Israel does not have the effective capability to maintain order and manage civilian life in the Gaza Strip currently.

• The Law of Occupation no longer applies in Gaza: In light of Israel's withdrawal from Gaza and the end of its effective control of such territory, the laws of occupation no longer apply to Israel's relations with Gaza.

• The current legal regime in Gaza - the Law of Armed Conflict: Given the ongoing warfare being waged against Israel and its citizens by the Hamas regime that currently controls Gaza, which takes the form of daily rocket barrages on Israeli civilian targets and other violent attacks against Israel, the appropriate international legal regime that applies to Israel's relations with Gaza is that of the law of armed conflict.

• Israel's legal duty in Gaza - Satisfying vital humanitarian needs: Pursuant to the Laws of Warfare: Israel's obligations towards Gaza are dictated by its humanitarian obligations under the laws of warfare, which are more limited in scope than the laws of occupation. Such basic obligations, which apply to parties engaged in an armed conflict, derive from the need to prevent harm to the civilian population caught in the area of the hostilities. Furthermore, such humanitarian obligations also stem from the degree of control that the State of Israel exercises at the border crossings between it and the Gaza Strip, as well as from the situation that was created after years of Israeli military control of Gaza, following which the territory is now almost entirely dependent on Israel for the supply of its electricity.

Accordingly, Israel is bound, both under international law and pursuant to the Cabinet Decision, to allow the passage of vital humanitarian goods to the Gaza Strip - including the transfer of medicine, religious objects and essential foodstuffs and clothing intended for children under the age of 15 and pregnant women - and to avoid the starvation of the civilian population as a means of warfare, but has no obligation to transfer non-vital goods to Gaza or more goods than are required to meet basic, humanitarian needs. Israel is not, however, bound under international law to transfer supplies that would give the other side a military or economic advantage. In practice, Israel allows patients requiring treatment into Israel and enables the delivery of food and medicine without limitation, while ensuring at all times that the basic humanitarian needs of Gaza's civilian population are fulfilled.

• Israel meets its humanitarian obligations in Gaza and monitors the humanitarian situation in Gaza on an ongoing basis: The reductions of fuel and electricity to Gaza pursuant to the Cabinet Decision do not breach Israel's humanitarian obligations in the framework of the armed conflict that currently ensues between Israel and the Hamas regime that controls Gaza. Israel actively monitors the situation in Gaza and consults with Palestinian officials in order to ensure that basic humanitarian needs are being met and that a humanitarian crisis is avoided. In its arguments to the Court, the State of Israel emphasized the fact that the reductions pursuant to the Cabinet Decision are to be implemented in a gradual manner and can always be reversed.  Moreover, the State noted that the fact that the supply of industrial diesel fuel to the Gaza Strip in the winter months of last year compares to the amount that Israel now undertakes to allow into the territory points to the fact that Israel continues to allow for the passage of vital goods and supplies to the civilian population of Gaza.

• The reduction of the supply of fuel and electricity to Gaza does not donstitute "collective punishment": Every country has the legitimate right under international law to decide for itself whether to forge and maintain economic ties with another state or entity and to impose economic sanctions on an enemy state or entity as a form of legitimate "economic warfare", so long as the vital humanitarian needs of the civilian population are protected, as is the case in Gaza. 

The imposition of economic sanctions is a common practice in international relations. Such economic penalties have been imposed throughout modern history upon various countries as a consequence of certain policies undertaken by the country's government, and are considered a legitimate and effective tool to exert pressure on terrorist and other regimes, such as that of the Hamas terrorist organization in Gaza. Such measures have never been considered the "collective punishment" of the civilians in the country upon which sanctions have been imposed.

Furthermore, international law does not prohibit the use of economic pressure during an armed conflict. Thus, Israel's reduction of the supply of fuel and electricity is the exercise of the State's legitimate right under international law to impose economic sanctions upon Gaza's current regime. Such measures are directed against the Hamas regime and not the civilian population in Gaza.

The State of Israel noted in its arguments that even were the situation in Gaza to be governed by the law of occupation, a reduction in fuel supplies, pursuant to the Cabinet Decision, which still met basic  humanitarian needs, would not constitute collective punishment. Under the Fourth Geneva Convention, the principle of collective penalties applies only to the deprivation of fundamental rights; to the extent that additional rights have been granted to a protected population, the removal of such rights in an act of retortion is not considered collective punishment.

• The reduction of the supply of fuel and electricity is proportionate:  Israel's reduction of the supply of fuel and electricity in Gaza is a legitimate and proportionate act in light of the violent warfare being waged against Israel by the Hamas regime that controls Gaza and the unceasing rocket attacks on the Israel's communities surrounding Gaza. The goal of such measures is twofold. Firstly, reductions of the supply of fuel and electricity to Gaza are designed to hamper the war efforts, such as the firing of Kassam rockets on Israeli civilian targets, being undertaken by the terrorist organization that controls Gaza against Israel and its citizens, by means of reducing resources, particularly fuel, that are available to the organization and that are used to fuel its daily attacks on Israel. Secondly, such measures aim to put pressure on Hamas in order to bring about a reduction in hostile activities undertaken by the terrorist regime.

Moreover, such economic sanctions imposed by Israel on Gaza are certainly a preferable response to Hamas' violent attacks against Israel than the alternative - a broad, military incursion by Israel into Gaza, which would be likely to bring about both civilian casualties and property damage. Again, it should be stressed that Israel continues to ensure that basic humanitarian needs are met and that sufficient fuel and electricity is supplied to Gaza to meet such needs. Of course, it should be noted that given that Israel no longer controls Gaza, there can be no guarantee that such basic supplies are allocated for humanitarian needs and not for terrorist purposes, and that such needs are prioritized, since it is Hamas that ultimately controls the distribution of such vital supplies.

The Supreme Court's Decision:

As noted above, the Supreme Court sitting as the High Court of Justice accepted the State of Israel's position that, since Disengagement in September 2005, Israel no longer exercises effective control over the Gaza Strip, and, accordingly, the law of occupation no longer applies to Israel's actions vis a vis Gaza. In light of the ongoing, violent warfare being waged by the Hamas regime in Gaza against Israel, which the Court noted included 222 mortar shell attacks by Hamas on Israeli communities bordering Gaza in a single week in the month of January 2008 - as well as the degree of control Israel exercises over Gaza's border crossings and the fact that at present Gaza is almost entirely dependent on Israel for the supply of electricity following years of military occupation - the relevant legal regime by which Israel is bound with regard to its relationship with the Gaza Strip is the law of warfare.

Under such a legal regime, Israel's legal obligations towards the civilians in Gaza are limited to the allowance of the passage of vital humanitarian goods. The Supreme Court accepted the State's arguments that the supply of fuel and electricity into Gaza by Israel meets the basic humanitarian needs of Gaza's civilian population and that Israel monitors the humanitarian situation in Gaza and consults with Palestinian officials on an ongoing basis and with the utmost seriousness so as to avoid a humanitarian crisis. The Court noted that the Cabinet Decision calls attention to Israel's humanitarian duties, and that it was impressed that Israel recognizes such obligations, by which Israel is bound under both international law and the Cabinet Decision.

Moreover, the Supreme Court accepted the State of Israel's position that the reductions of fuel and electricity pursuant to the Cabinet Decision do not constitute "collective punishment" and that Israel has the legitimate right under international law and practice to impose economic sanctions against an enemy state or entity, such as the Hamas-controlled Gaza Strip, which continues to wage war against Israel and its citizens. The Court emphasized the violent nature of the Hamas regime, which justifies the measures adopted by Israel, but at the same time noted that the reductions proposed by Israel meet the requirements of applicable law:

In conclusion, we again point out that the Gaza Strip is controlled by a murderous terrorist group that operates incessantly to cause injury to the State of Israel and its citizens, and violates every possible precept of international law with its violent actions, and makes no distinction toward civilians - men, women, and children. Nevertheless, as stated above, the State of Israel is required to act against the terrorist organizations within the framework of the law and in accordance with the dictates of international law, and to refrain from deliberately harming the civilian population located in the Gaza Strip. In light of the entirety of the information presented to us with respect to the supply of electricity to the Gaza Strip, we believe that the amount of industrial diesel fuel that the State indicated it intends to supply, and the electricity that is regularly supplied through the power lines from Israel, are sufficient to meet the vital humanitarian needs of the Gaza Strip at this time. [Para. 22]

In its decision, the Supreme Court stressed that Israel recognizes and upholds its legal obligations and emphasized that, as opposed to terrorist groups that purposely target civilians, Israel battles terrorism and terrorist organizations, such as Hamas, within the confines of the law and democracy:

Indeed, during a period of warfare, as is the case before us, the civilian population finds itself, to its disadvantage, in territory in which the warfare is being waged, and it is the first and principal victim of the fighting, even when efforts are made to minimize the injury to such civilian population. In the territory of the State of Israel as well, in an era of terrorist attacks that have continued for years, the immediate and principal victim of the warfare is the civilian population. However, in the case of the actions against Israel, the damage is not of an accidental or incidental nature, but rather is the result of deliberate and frequent attacks against the civilian population that are aimed at harming innocent civilians. This is the difference between the State of Israel, a democracy fighting for its life within the confines of the law, and the terrorist organizations that rise up against the State of Israel. [Para. 21]