In the context of the ill wind that is being borne on waves of anger, hatred and fear, there has been a demand to disconnect Gaza from electricity and water, which are supplied by Israel.
This demand, which if met would be a disaster for the civilian population in the Strip, is in total contradiction to the dictates of morality, international law and the ruling of Israel’s High Court of Justice, and yet despite that a legal scholar was found who was ready to defend it: Two weeks ago it was reported that the forum of subcommittees of the Knesset Foreign Affairs and Defense Committee received an opinion from Prof. Avi Bell of Bar-Ilan University, to the effect that Israel is allowed to stop providing electricity and water to the Gaza Strip (“Legal opinion: Israel can cut off water, power to Gaza during conflict.”)
Bell bases his conclusion on the claim that Gaza is an independent entity that is separate from Israel. That is not the case: Gaza is one of two parts of the Palestinian territory under Israel occupation. In the West Bank there is a classic occupation – Occupation 1.0, if you will – based on presence and control of a piece of territory. In Gaza there is an “updated” version of occupation, Occupation 2.0 – a long-distance occupation by means of control of the external boundaries of the territory, which enables Israel to dictate what leaves and what enters, thereby leaving the Strip dependent on its good will.
This relationship of dependence and control means that Israel has legal and moral responsibility for the inhabitants of Gaza, which is not the case when it comes to inhabitants of foreign countries.
Bell recognizes the fact that Gaza is not a country, but he ignores Israel’s control over it and denies the responsibility that is a consequence of this control. By doing so Bell places Gaza-Israel relations in a legal vacuum: On the one hand, the laws governing relations between countries do not apply; and on the other hand, occupation laws that govern relations between a country and foreigners under its control do not apply either. In this vacuum Israel can do whatever it likes.
In the case of Occupation 1.0, there have also been legal scholars who, by means of dubious casuistry, permitted what is forbidden, and allowed Israel to ignore its obligations. At the time, many of their colleagues remained silent, protested too weakly, or waited until it was too late to change the situation. That was one of the ways that the road to the settlement enterprise was paved.
That us why a group of 12 Israeli experts on the rules of warfare did the right thing when it recently hastened to publish a contradictory opinion, attacking Bell’s. They maintain that Israel is obligated to continue supplying water and electricity to Gaza, and even to do everything possible to renew the supply when it is interrupted due to the fighting.
We have to hope that their opinion will be heard. The welfare of millions of people lies in the balance.
The writer is the director general of Gisha – Legal Center for Freedom of Movement, and an expert on humanitarian and international law.
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