Dear Mayor Koch,

Thank you for your interest. I will address your question, and I would also like to refer you to some documents that provide more detail, if you are interested, especially a position paper Gisha has issued, Disengaged Occupiers: The Legal Status of Gaza, which is available at www.gisha.org. It is a long document, and I am happy to mail you a hard copy if you provide a mailing address. The link to the paper is:

http://www.gisha.org/UserFiles/File/Report%20for%20the%20website.pdf

I will also reiterate the statement I made to the Associated Press – that targeting civilians, whether in Gaza or in Sderot, is illegal. The Qassam rockets on Sderot violate international law, and they must stop.

To your question - There are two reasons that cutting electricity, water, and fuel to Gaza would be illegal under international law. The first concerns Gaza's legal status and Israel's relationship to Gaza, and the second is a more general principle of international law that prohibits deliberately targeting civilians.

First:

Gaza is not an enemy state, as Poland was vis a vis Britain during World War II. In fact, Gaza is not a state. It is occupied territory, whose residents enjoy the protections of the Fourth Geneva Convention and the Hague Regulations concerning occupied territory. Disengaged Occupiers gives a detailed analysis of our position, that Gaza is still occupied. It is a position shared by the United Nations (I am happy to forward correspondence with the spokesman's office for UN Secretary General Ban Ki Moon articulating the UN position, and of course you can ask his office directly), the International Red Cross, the European Union, and other members of the international community.

Simply put, despite the withdrawal of permanent ground troops in 2005, Israel continues to exercise significant control over life in Gaza, control which rises to the standard "effective control" articulated in Article 42 of the Hague Regulations of 1907. Israel controls Gaza's borders (including the territorial waters and air space, which are closed, and significant aspects of Gaza's border with Egypt), its population registry (meaning who is a resident of Gaza and who may live there), its tax system, funding of its public services, and other significant aspects of life there.

Between 1967 and 1995, Israel supplied water, electricity, and fuel to Gaza directly (paid in part by taxes levied on Gaza and West Bank residents), as part of its obligation as an occupying power and the de facto sovereign in Gaza and the West Bank. In the mid-90's, with the establishment of the Palestinian Authority, an interim arrangement was reached in which Israel continued to collect most tax moneys from Gaza and the West Bank, and transferred that tax money to the PA after deducting the cost of the water and electricity, as part of economic arrangements known as the "Paris Protocol" of the Oslo Accords. That interim arrangement has been in place since the '90's – the 2005 disengagement did not change it. The arrangement does not change Israel’s status as occupying power – it outlines the way in which Israel can meet those obligations, namely by a process involving the PA.

Israel's provision of water and electricity is done in the framework of its control over the funding of public services in Gaza and the West Bank. Israel collects Value Added and Customs taxes on goods entering the Palestinian territories and uses those moneys to fund vital infrastructure services through an arrangement with the PA. That continues to be the case, despite the Hamas takeover of Gaza.

Behind that arrangement is control. Gaza residents can't collect their own customs and Value Added taxes, because they don't control the flow of goods in and out of Gaza - Israel does. Gaza residents can't enter into arrangements with third countries for supply of water and electricity, because the Interim Agreements bar the PA from entering into agreements with third countries without Israeli approval - and anyway, the sovereign powers necessary to enter into an international agreement (control over borders, tax money, movement) are exercised by Israel.

In June 2006, Israel bombed the transformer station it had allowed Gaza residents to build, knocking out 40% of Gaza's electricity supply. Repair of that station, which is still taking place, is dependent on Israel's willingness to allow Gaza residents to bring equipment and experts into Gaza, in order to fix it. Israel does not allow import into Gaza via sea, air, or the land border with Egypt. The only way to get goods into Gaza is through Israeli-controlled crossings, and the only way to get non-Gaza residents into Gaza is through direct Israeli approval. Actually, these days, the only way to get anyone into Gaza is through Israeli approval.

I refer you to Chapter 3 of Disengaged Occupiers, which outlines the ways in which Israel continues to exercise control over Gaza.

So on the one hand, because of the control it exercises over Gaza, Israel has a positive obligation to provide for the needs of Gaza residents, including water and electricity (Article 43 of the 1907 Hague Regulations). On the other hand, Israel is prohibited from inflicting collective punishment on Gaza residents (Article 33 of the Geneva Convention and Article 75(2)(d) of the First Protocol to the Geneva Convention), as a response to attacks by militants or as a means of pressuring the leadership. The above-mentioned regulations have the status of customary international law.

Second:

Irrespective of the question of Gaza’s legal status, deliberately targeting civilians violates the international law principle of distinction, which requires a state to refrain from deliberately inflicting harm on civilians. Given Gaza’s dependence on Israel for electricity, and the fact that Israel’s actions prevent Gaza from providing its own electricity (for example, last summer’s bombing of the power station), deliberately cutting off the flow of electricity and water amounts to a deliberate attack on civilian infrastructure. Israel may attack combatants, in response to a military attack (the Qassam rocket fire on Sderot), but it may not deliberately deprive the 1.5 million women, men, and children who live in Gaza of electricity, water, and fuel, in response to a military attack by combatants.

I will note that Israel has recognized this obligation in the past. For example, in response to an expression of concern from Gisha following the Hamas takeover of Gaza in June 2007, Israel’s Infrastructure Minister assured us of his policy to continue providing electricity and water, because, as he put it in a letter to Gisha, “the provision of water and electricity is beyond the boundaries of the conflict.”

We are asking him to abide by that commitment.

Depriving 1.5 million people of water and electricity, even intermittently, is not only illegal – it is dangerous and ineffective.

It is dangerous, because operating rooms, sewage pumps, emergency services, and water wells cannot run without electricity. Even intermittently cutting off those services to Gaza’s vulnerable population risks the lives and health of 1.5 million people.

It is ineffective, because it won’t stop the Qassam rockets. For the past year and half and especially since June 2007, Israel has been implementing a variety of punitive measures against Gaza’s civilian population, including border closures that have effectively shut down Gaza’s economy (see Gisha’s report, Commercial Closure: Deleting Gaza’s Economy from the Map, on our web site).  These policies have NOT stopped the Qassam rockets. On the contrary - depriving Gaza residents of vital services and turning them into dependents on international and religious charities - only strengthen extremist elements.

I would be happy to provide additional information. I would also like to propose an interview or radio discussion, as a way of presenting this position to your readers and listeners. As you know, U.S. policy is highly influential in this region, and most Americans are unaware of the nature of Israeli control over Gaza and the duties that flow from that control.

As a human rights lawyer, I am committed to respect for law and for the well-established principle that where control is exercised – responsibility attaches. As a citizen of Israel, I am concerned about growing violence and motivated by the belief that allowing Gaza residents to lead healthy, prosperous lives contributes to pragmatism, stability, and peace.

Best regards,

Sari Bashi

P.S. A minor clarification – Hamas has expressed willingness to honor at least some agreements signed by the PA, especially agreements concerning Gaza’s border crossings, but in the absence of discussions between the parties, that willingness has not been tested.

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