Obligations to Palestinians – Part IV: Essential Services – Moral and Legal Responsibilities
When the king of Israel saw them [prisoners captured by Israel], he asked Elisha, “Shall I kill them, my father? Shall I kill them?” The prophet Elisha answered: “Do not kill them. Would you kill those you have captured with your own sword or bow? Set food and water before them so that they may eat and drink and then go back to their master.” So the King prepared a great feast for them. After they had finished eating and drinking, he sent them away, and they returned to their master. So the bands from Aram stopped raiding Israel’s territory. 2 Kings 6:21-23
Treating an enemy morally, respectfully and humanely is not only a moral duty. It is good politics.
Up to now I have generally been concerned primarily to offer negative criticisms of commentators based on their poor reasoning, lack of evidence, inadequate argument and their often hysterical and dogmatic opinions. In this blog I will put forth what I think are the obligations that stem primarily from international humanitarian law (the Geneva Conventions) and the Hague Convention, the laws focused on how war can be conducted that is both legal and just. The two approaches are taken as complementary and I will refer to both.
The danger of such a discussion is that it can easily become immersed in technicalities of international law. I am writing this for the layperson and not the international law expert so will cite international legal authorities only when they offer an analysis with which I disagree but respect and to which the reader may wish to refer to judge for themselves. More generally they may wish to refer to Kevin Jon Heller’s blog Opino Juris that summarizes the current debate among international humanitarian law experts over whether Israel owes a duty to supply water and electrical power to Gaza.
As referred to in an earlier blog, one crux of the debate is whether Israel continues to be an occupying power in Gaza. There are basically four positions:
A. Israel is an occupying power and has obligations to provide water and sufficient electricity to maintain a basic standard of living for the population; (Cf. Professor Michael Bothe of Frankfurt University who takes this position – http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf
B. Israel is not an occupying power so it is not up to Israel to ensure that Gaza is supplied with power and electricity (Avi Bell) [Note, Avi Bell is the professor of international law at San Diego and it was after his debate with Richard Goldsone on the latter’s report that Goldstone withdrew his support for his own report and said that he should not have written that Israel deliberately targeted civilians.]
C. Whether or not Israel is an occupying power, Israel unquestionably was an occupying power and, as such, given its current position in relationship to Gaza in its control of entry points, retains post-occupation responsibilities to ensure that Gazans have water and sufficient electricity to maintain a basic standard of living;
D. Whether or not Israel is an occupying power and whether or not it retains post-occupation responsibilities, nevertheless, Israel has a humanitarian duty to ensure water services and sufficient electrical power to ensure basic standards.
Note that basic standards means that, if a party is an occupying power, it “must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.” It certainly does not mean sufficient electrical power to manufacture weapons and build tunnels for military aggressive purposes.
Note that only position B above argues that Israel has no responsibilities. Further, positions A, C and D agree on the same set of responsibilities but differ only in the foundations that require those responsibilities to be fulfilled. I hold position D because I argue that Israel is NOT in occupation in Gaza and, further, given subsequent events to Israel vacating its occupation in almost all parts of Gaza, its post-occupation responsibilities expired. To the extent that they remain for the lateral roads along the border where Israel maintains control and occupancy for security purposes, this relatively small part of Gaza is unoccupied so the issue of responsibility in this part of Gaza is moot. Israel retains some responsibilities for the water and electrical supplies to Gaza not because it is or was an occupying power. Israel has secondary responsibilities for its neighbours, particularly others who are dependent on Israel for basic services.
Let me return to the argument – and it is a reasoned argument and not a dogmatic opinion – that Israel is still in occupation of Gaza as put forth by Michael Bothe. [Michael Bothe is my age and belongs to an older school of humanitarian law experts, is author of the very widely used handbook on humanitarian international law and is closely associated with the positions of the ICRC.] Bothe cites the ruling of the Israel Supreme Court in Bassiouini v Prime Minister of Israel that Israel is NOT an occupying power and does not have to provide for the welfare of the population even as a post-occupying power, but does have to cooperate in efforts to ensure that MINIMUM humanitarian goods and services reach the civilian population – essentially my position. Bothe, while clearly respecting both the Supreme Court and its ruling, disagrees.
Why? Because Bothe argues that the withdrawal had to be more complete in order to terminate Israel’s responsibilities as an occupying power. According to Article 42 of the Hague Convention (Laws and Customs of War on Land and its annex: Regulations, The Hague, 18 October 1907. Regulations respecting the laws and customs of war on land, Section III : Military authority over the territory of the hostile state – Regulations: Art. 42.) Israel still effectively controlled access, even indirectly through a cooperation agreement with Egypt (Article 60 GCIV). Bothe argued that an occupying power only loses its responsibilities if ALL the broad powers of government are transferred. In my interpretation, the section cited applies to an occupying power that tries to exercise control and authority indirectly (say through a puppet government or through internal means of intimidation) rather[A1] than directly. In other words, if withdrawal is merely a ruse and the occupying power still retains effective control, then according to international law, it remains an occupying power. Israel only retained sufficient control to ensure its own security and not nearly enough control to exercise effective power and authority in Gaza. The authority must be sufficient that the territory is “under the authority of the hostile army”. Since Israel is no longer in this position, certainly since Hamas assumed power in 2007, then Israel is no longer an occupying power. (Articles 44 and 57).
The argument in part depends upon whether a broad or narrower interpretation is given to “occupation”. Bothe (and the ICRC) defend a broad interpretation. Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” (my italics) In many military manuals, “can” entails all the powers of a sovereign authority. For many international humanitarian law experts, “can” refers to effective and not complete control. For a few of those humanitarian law experts – Bothe included -, effective control means sufficient control to ensure whether the sovereign party formally in charge is in a position to fulfill its duties.
The difference is whether it must have “all” powers, “effective” powers or “sufficient” powers to determine outcomes. In either case, as the ICRC states, it is solely the facts on the ground that determine the application of humanitarian law. For me, the facts on the ground are clear – Israel does not retain even effective let alone total control over Gaza. Further, though it retains sufficient control to interfere with the exercise of sovereign powers, this cannot be a criterion for the application of humanitarian law otherwise when a state introduces sanctions of any kind and thereby effects the ability of a sovereign authority to deliver services, it would be an “occupying power” and I contend that this would be absurd.
ICRC and Bothe disagree. They argue that control over the means of access means that Israel retains control over the well-being of Gazans. I argue that control of access does not mean occupation and certainly not control over the well-being of Gazans, but does effect that well-being and, to the extent that it does, Israel has responsibilities to ensure the provision of water and sufficient power for basic maintenance of the population. To be in occupation requires that Israel be in a position to exercise enough authority in an enemy territory that it can discharge its responsibilities as an occupier. Israel does not. Yet I argue that Israel has a responsibility to mitigate suffering.
Even in the broad interpretation of occupation, occupation exists “whenever a party to a conflict exercises some level of authority or control within foreign territory” and, I would argue only to the extent that it has that authority within that territory, and, therefore, only to the minor parts of Gaza over which Israel retains control. Bothe and the ICRC would respond that Israel retains control since it determines whether the Hamas government is in a position to fulfill its responsibilities. However, I argue that there is a difference between the obligation not to prevent Hamas from fulfilling its minimal responsibilities and assuming those responsibilities itself. As long as Israel does not prevent Hamas from supplying water and basic electrical services to the Gazan population, it will have fulfilled its responsibilities even though it is not an occupying power. Since Israel does control whether Hamas can build or repair the water and sanitation facilities as well as the power plant, to that degree Israel retains a responsibility to ensure Gaza has sufficient water as well as sufficient electricity to maintain a basic standard of living.
A reader may react: “Who cares about the grounds for responsibilities if, in effect, the responsibilities are precisely the same? This is all blather to keep intellectuals employed.” However, the dispute may not affect the moral or legal outcome desired but it may affect the actual outcome since it affects the prime responsibilities of the different parties in ensuring water and power are provided, that is, which party carries primary responsibility and which party has a secondary responsibility. This in turn effects the fine tuning in fulfilling those responsibilities.
This position is reinforced when one examines the border of Gaza with Egypt. When the Muslim Brotherhood came to power in Egypt, the enforcement of the restrictions on entry of goods and services to Gaza in accordance with an agreement between Egypt and Israel, which was already slightly lax, became extremely lax. With the coming to power of the military in Egypt about a year ago, the enforcement of those border controls became very strict and provided Hamas with one of the reasons for resuming its very belligerent actions towards Israel. Because Hamas was in even worse straights, these factors pushed Hamas into forming a unity government with Fatah on Fatah terms and backing off that belligerency in April and May. Its resumption of belligerency was then instigated when Hamas saw that it had backed itself into a corner and faced decimation, initially in the West Bank, when Israel used the excuse of the murder of the three Yeshiva students to round up Hamas operatives. This is just one strand of empirical evidence to indicate that Israel did not retain effective control over the exercise of sovereign powers in Gaza.
What responsibilities does Israel then have? Since there is little dispute over Israel’s provision of water, I will focus on the power plant since Israel, whether inadvertently or deliberately, bombed the power plant that provides Gaza with 90% of its electrical needs, The power plant is a dual use facility in that it provides energy both for civilian purposes as well as for military purposes, including both the manufacture of rockets aimed at civilian targets in Israel and the construction of tunnels through which to send saboteurs and murderers into Israel. Was Israel guilty of a crime against humanitarian law in bombing the electrical power plant in Gaza? If Israel was not in occupation and did not retain post-occupation responsibilities but only moral responsibilities to a neighbor, how could Israel bomb that plant either deliberately or inadvertently if it retained a moral responsibility to ensure Gazans were provided with essential services? This apparent dilemma led Heller to conclude that, “it would be paradoxical to say that a state is permitted to destroy the enemy’s electric plants, but is required to supply its own electricity to the enemy.”
But the paradox is only apparent. For under the laws of war Israel may be permitted to bomb the power plant but under humanitarian law may be required to ensure basic electrical services are provided. Israel could intentionally bomb the power plant to disrupt both communications and production abilities within Gaza but then, under humanitarian law, effectively control the amount of electricity supplied to ensure that it is only sufficient to maintain basic standards. The basic needs of a population must be met. The issue is the specific responsibilities of the different parties.
I hope this argument has not been too technical and explicates why I believe that Israel is not either an occupation power or a post-occupying power but nevertheless retains a responsibility to ensure the provision of basic services to the inhabitants of Gaza.