B'Tselem views with great severity the High Court's decision, given on 30 January 2008, to reject the petition against Israel's plan to reduce supply of electricity and fuel to the Gaza Strip, which has already been in force for several months. The petition was filed by Palestinian residents of Gaza and ten Israeli and Palestinian human rights organizations, B'Tselem among them.
The plan is part of a number of actions that the Political-Security Cabinet authorized in response to Qassam rocket fire on Israel, after its decision of 19 September 2007 to classify the Gaza Strip as “hostile territory” following Hamas's takeover of the area. The Cabinet decision also states that “further limitations will be placed on the Hamas government that will limit the movement of goods to the Gaza Strip, reduce the supply of fuel and electricity, and limit the movement of persons to and from the Strip”.
The petitioners contend that these measures will endanger innocent civilians and are liable to cause extensive humanitarian harm, even risking lives, because of the severe harm that the reductions would cause to the proper functioning of vital services. The petitioners further contend that intentional harm to civilian infrastructure in the Gaza Strip is patently illegal, that international law does not allow punishment of the civilian population “just a little bit,” and that there is an absolute prohibition on collective punishment. These arguments are especially cogent given Gazans' total dependence on Israel for the supply of electricity and fuel, which was created over 38 years of direct Israeli control of the Strip.
The court's decision has allowed the defense establishment to reduce, as of 7 February, the amount of electricity that the Israel Electric Corporation sells to the Gaza Strip, even though Gaza already suffers a 20 percent shortage of electricity. Due to this shortage, Palestinian authorities have already had to initiate interruptions in the supply of electricity. The petitioners and international organizations have documented in detail the harm to hospitals and other vital systems. The justices reached their decision despite the many documents submitted by the petitioners in support of their claims.
In addition to the gravity of allowing Israel to continue to deliberately harm the civilian population in the guise of placing restrictions on Hamas rule, the decision is problematic for the following reasons:
- The judgment deals superficially with serious issues, among them whether Gaza is occupied territory, the extent of Israel's responsibility for the situation in the Strip, and its current obligations to Gaza and its residents.
- In their judgment, the justices accepted without challenge the state's “commitment to monitor events in the Gaza Strip and verify that the said reduction does not cause humanitarian damage to the residents of the Gaza Strip, as required under Israeli law and international law”. The court also adopted the state's contentions that “the restrictions will be applied following legal examination, taking into account the humanitarian aspects of the situation in the Gaza Strip and with the intent to prevent a humanitarian crisis.” The court completely refrained from discussing central questions, such as “What is the definition of a humanitarian crisis?”, “At what point does a harsh humanitarian situation turn into a crisis?”, and whether the situation in Gaza has reached that point.
- The court did not critically examine the state's contention that the cuts in electricity and fuel supply affect the capability of Palestinian organizations to fire Qassam rockets at Israel, and are, therefore, a reasonable and effective response to the rocket fire, and that the response is rationally connected to the rocket fire. The state was not required to provide a basis for this contention, which is not obvious.
- The hearing in the High Court contained procedural flaws grave enough to raise doubt about its validity, a matter to which the court did not relate in its judgment. For example, the army prevented persons who had given affidavits on behalf of the petitioners to come to the hearing, in breach of its undertaking, while the court made an exception and heard testimony from the head of the army's Coordination and Liaison Office for the Gaza Strip, although he did not submit an affidavit as required. The court even based its decision on this testimony. The testimony contained unfounded contentions that refuted the evidence submitted to the court by the petitioners regarding the severe humanitarian situation in the Gaza Strip, resulting from the decision to cut back the supply of fuel and electricity. The court even quoted statements ostensibly made by army representatives, which were in fact never voiced, and based its conclusions on these misleading statements.