Last update - 00:00 20/09/2007
Legal Analysis / Turning off all lights unlikely
By Ze'ev Segal
The security cabinet's decision yesterday declaring the Gaza Strip "hostile territory" opens the door to various restrictions, such as limiting the supply of fuel and electricity to the strip. This declaration is political, but it carries practical legal consequences.
Alternatively, the cabinet could have declared Gaza an "enemy area" under the 1939 Trading with the Enemy Ordinance. Trading with the enemy includes providing electricity to the area, and it would thus have been prohibited except with special permission from the finance minister.
The cabinet's decision to instead deem Gaza "hostile territory" probably means that various steps will be taken, such as limiting the supply of fuel and water. But these supplies will not be totally cut off, which would be prohibited due to the basic humanitarian obligations imposed by international law. These obligations apply to Israel despite the disengagement from Gaza, since Israel is considered to have effective control over the area due to its control over Gaza's air, sea and land borders.
"Effective control" is defined in Dr. Robbie Sabel's book International Law as an accepted sign that an area is "occupied territory" and international law applies to it. Israel recognizes its humanitarian obligations in Gaza, but does not see the strip as "occupied territory" with respect to all the finer points of international law.
The international community, in contrast, does see Gaza as "occupied territory" as long as effective control is exerted, and Israel will therefore probably avoid drastic means that would harm the strip's population, such as cutting off electricity completely.
If and when harsh measures are enacted against Gaza's population, petitions against the cabinet decision are likely to be submitted to the High Court of Justice. The High Court has determined that international humanitarian law applies to the West Bank, which is under "belligerent occupation." But in the post-disengagement era, a good deal of legal uncertainty currently prevails with regard to the Gaza Strip.