By Dr Abraham Bell
Dr. Avi Bell is a member of the Faculty of Law at Bar-Ilan University, Visiting Professor at Fordham University Law School, and Director of the International Law Forum at the Jerusalem Center for Public Affairs.
This article was originally published by the Jerusalem Center for Public Affairs under the title "Is Israel Bound by International Law to Supply Utilities, Goods, and Services to Gaza?", Jerusalem Issue Brief, Vol. 7, No. 33, 28 February 2008. It is reproduced at Zionism On The Web with permission of the publisher.
On Feb. 9, 2008, British Foreign Secretary David Miliband and Development Secretary Douglas Alexander attacked Israel's decision to respond to ongoing Palestinian rocket attacks from Gaza by limiting the supply of fuel to the Hamas-ruled territory. The two British leaders alleged that Israel's action violated international law. On Feb. 27, 2008, the new UN Special Coordinator for the Middle East Peace Process, Robert H. Serry, also asserted in a briefing to the UN Security Council: "Israeli measures amounting to collective punishment are not acceptable. We call on Israel to meet its obligations toward the civilian population of Gaza under international law."
International officials are entitled to object on political grounds to Israel imposing even limited economic sanctions in response to Palestinian terrorism. However, they err in insinuating that international law forbids Israel's actions. International law does not require Israel to supply Gaza with fuel or electricity or, indeed, with any other materials, goods, or services.
What Does Article 23 of the Fourth Geneva Convention Say?
Article 23 of the Fourth Geneva Convention requires parties to certain conflicts to permit transit to enemy civilian populations of a limited number of items under a limited set of conditions. However, the fighting in and around the Gaza Strip is not a conflict covered by the Fourth Geneva Convention: the conflict is not one between state parties to the Convention, and Gaza is not occupied territory. Therefore, Israel is free to ignore the injunctions of Article 23.
Even if it were bound by the Fourth Geneva Convention, Israel would be acting in full compliance with international law. Article 23 of the Fourth Geneva Convention permits states like Israel to cut off fuel supplies and electricity to territories like Gaza. Article 23 only requires a party to permit passage of food, clothing, and medicines intended for children under fifteen, expectant mothers, and maternity cases. Were Article 23 to apply, Israel would still be under no obligation to permit passage of electricity or fuel or any items other than food, clothing or medicine.
Moreover, under Article 23, Israel would be under no obligation to provide anything itself; Israel would only be required not to interfere with consignments of food, etc. sent by others. Article 23 does not require unfettered passage of food, clothing, and medicine to the entire civilian population of enemy territory; if the article applied, Israel would be required only to permit passage for the benefit of Palestinian children, mothers of newborns, and pregnant women.
Finally, under Article 23, a party can block passage even of food, clothing, and medicine for children and mothers if it has serious grounds for worrying that the items will be intercepted before reaching their destination or that the items may benefit the enemy's economy by substitution. Israel has excellent grounds for fearing both of these results, especially after Hamas seized fourteen Red Crescent trucks with humanitarian aid on Feb. 7, 2008, on the pretext that only Hamas may decide how to distribute aid in Gaza. Thus, Article 23 would permit Israel to block shipments even of food, clothing, and medicine intended for children, pregnant women, and mothers of newborns.
What Does Article 70 of 1977 Say?
Article 70 of the First Protocol Additional to the Geneva Conventions of 1977 creates a slightly broader duty regarding the provision of food, medical supplies, clothing, bedding, means of shelter, and "other supplies essential to the survival of the civilian population." Israel, however, is not a party to the First Protocol and is therefore not bound by the provisions of Article 70.
Even if Israel were so bound, Article 70 does not list fuel and electricity as items for which passage must be permitted. Moreover, Article 70 does not place any duty on warring parties to supply the required items. It imposes a general duty on all states to organize "relief actions" and on the warring parties not to interfere with the actions. Thus, under Article 70, Israel would have no obligation to provide fuel or electricity; indeed, it would not even have any particular duty to provide food and medicine. At most, Article 70 would require Israel to permit transit to others' shipments of food and medicine. Israel already does this without Article 70.
Must Israel Ensure a Minimum Supply of Fuel and Electricity to Gaza?
More generally, the Israeli Justice Ministry has acknowledged a duty under customary international law not to interfere with the supply of basic humanitarian items such as food and medicine, and the Israeli Supreme Court has enforced this duty in several decisions (most recently, HCJ 9132/07, Ahmed v Prime Minister, on Jan. 30, 2008).
In a Feb. 11, 2008, article in the Jerusalem Post, a former Israeli Foreign Ministry attorney summarized this acknowledged duty expansively and inaccurately as a requirement that Israel ensure a minimum necessary supply of food, fuel, and electricity to prevent starvation or a humanitarian crisis. Even if the duty were as broad as in this misstatement, Israel has not breached its duty by cutting off Israeli fuel; Israel has only reduced supplies, while Gaza maintains more than sufficient supplies for basic humanitarian needs.
Israel is not required by its customary general humanitarian duties to provide required items itself, only not to interfere with their passage. And fuel and electricity are almost certainly not items that Israel or other warring parties are required to supply. Additionally, Israel is not the sole available source of fuel and electricity to Gaza and, therefore, even if it were true that, as Milibank and Alexander stated, "without a steady supply of electricity hospitals cannot function, pumping stations and sewage systems fail, and access to clean water is denied," Israel would not be required to permit passage of fuel and electricity. Moreover, given the likelihood of Hamas diversion of assistance, even the customary rule permits Israel to interfere with the passage of humanitarian items to ensure that they do not reach the wrong hands or benefit the military efforts or economy of the enemy.
Beyond these customary duties, the same Israeli attorney wrote that "the international community  regards Israel as continuing to have some responsibility for ensuring supplies to the civilian population" because Gaza "depends" on Israel for its electricity and water after local mismanagement of water supplies, several decades of Israeli military administration, Israeli control of Gazan airspace, and continuing military clashes. Unfortunately, he inaccurately referred to the Israeli curbs on the supply of goods as a "blockade" and misleadingly refrained from noting explicitly that there is no legal basis for the stated expectations of the "international community."
None of the grounds referenced by the Jerusalem Post article provide a legal basis for claiming that Israel must supply Gaza with electricity or the like. First, dependence on foreign supply - whether it be Gazan dependence on Israeli electricity, European dependence on Arab oil, or Somali dependence on foreign food aid - does not create a legal duty to continue the supply. Absent specific treaty requirements, countries may cut off oil sales to other countries at any time. Second, neither Israel nor any other country is required to supply goods in response to its foes' resource mismanagement or lack of natural bounty. Third, there is no precedent or legal text that creates legal duties on the basis of a former military administration. For instance, as the article noted, no one has ever argued that Egypt has legal duties to supply goods to Gaza due to its former military occupation of the Gaza Strip. Fourth, control of airspace does not create a legal duty to supply goods either. For instance, UN Security Council-ordered no-fly zones in Iraq and Libya were not seen as the source of any legal duty to supply those countries with electricity, water, or other goods. Finally, military clashes do not themselves create a legal duty to supply goods. Only occupation as described by the Fourth Geneva Convention requires an occupier to ensure supply of goods. In other cases of military clashes, the parties' duty is limited to not interfering with the passage of certain humanitarian goods, as described above.
It is noteworthy that Miliband and Alexander, while condemning the recent Palestinian terrorist bombing in Dimona, were not reported as having referred to the illegality of the Palestinian attack under international law or, indeed, to have made any reference whatsoever to the continued illegal Palestinian rocket attacks on Israeli towns like Sderot. This is unfortunate, as the Dimona bombing and rocket attacks are clearly war crimes and illegal acts of terror under customary international law and international treaties such as the International Convention for the Suppression of Terrorist Bombings.
Miliband and Alexander appear to misunderstand the duties of their country and Israel under the relevant treaties on terrorism and relevant UN Security Council resolutions. Under Security Council Resolution 1566, Britain is required to cooperate fully in Israel's fight against terrorism "in order to find, deny safe haven and bring to justice...any person who supports, facilitates, participates or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe havens." Even if Miliband and Alexander are correct in assessing the motivation of the terrorist attack in Dimona as an attempt to "undermine the peace process," British support for the "peace process" does not absolve Britain or other states of their duties to cooperate in Israel's fight against terrorism.
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(c) 2008, Avi Bell and the Jerusalem Center for Public Affairs, reproduced with permission at Zionism On The Web
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