Israel still does not understand anything about international law
Gaza is again in the headlines. Let’s hope not in light of the next round of violence. Such a round will certainly create new war crimes accusations against Israel. But while Israel takes pains to consider international law in warfare, the same is not true when it comes to policy measures toward Gaza. Two separate incidents, namely the electricity supply cut and the creation of an artificial island off of the Gaza coast, have clearly demonstrated this during the past few days.
Only recently Israel took the decision to decrease the amount of electricity provided to the Strip. Israel addressed thus indirectly the demands of Palestinian Authority President Mahmoud Abbas in an attempt to exert political pressure on Hamas. The strategic question of who will pay the price, Israel or Abbas, if hostilities erupt, and with which side Abbas will then align himself, remains to be answered. The same is true regarding the ethical question of whether someone took into account also the hardships such a supply decrease would bring to the Gaza civilian population.
But apart from these questions, democratic states based on the rule of law, such as the State of Israel, take decisions inside a certain legal framework. When it comes to Gaza, this framework is comprised mainly of human rights law. As a result, as the Supreme Court has stated in response to relevant petitions in the past, Israel has an obligation not to create a humanitarian crisis in the Strip. This obligation, seemingly ignored, is nowhere mentioned in Israel’s latest decision.
More than a decade after its disengagement from the Strip, Israel tends to slowly forget its legal obligations toward Gaza. Yet, to the extent that Israel continues to exert authority over the Strip – even on security grounds – these legal obligations will not vanish. Courts like the European Court of Human Rights have ruled that a state can be held accountable for human rights violations taking place in a territory over which that state exercises effective control. The refueled debate over the construction of an artificial island off Gaza’s shores brings this effective control parameter to the forefront.
The debate is sparked by an idea voiced at least for the past year by Transportation Minister Yisrael Katz. According to Katz, such an island would house Palestinian air and sea ports. Goods destined for Gaza would arrive first at this island, be subject also to Israeli security controls and then be allowed to enter the Strip. Katz hopes that in this way Israel’s disengagement from Gaza will be completed.
Katz’s intention for Gaza to acquire an international airport and port has to be welcomed. Indeed, the Palestinians are entitled to economic prosperity. Yet, as the plan has been circulated during the past year and brought also before the Americans, not a single legal voice has come forth to stress in public that the security checks Israel will be conducting on such vital points for Gaza’s border policy, such as its airport and port, will constitute a form of Israeli control over the territory, which will be termed effective because of its degree.
Israel will continue to be held accountable for possible human rights violations against Gaza’s civilians. The disengagement will not end. On the contrary, Israel’s engagement with Gaza will come to be expanded from the coastal strip also to an artificial island.
Along these lines, it is worrying that when last week the issue of the island’s construction came before the cabinet for a vote, only Defense Minister Avigdor Liberman voted against it, on security and not legal grounds.
Ultimately, when it comes to its attitude toward Gaza, Israel does not seem to have internalized what should be clear, namely that human rights law applies generally and not only during military operations. Unless Israel understands this, it will continue speaking a different language visà-vis the rest of the world with lack of awareness toward its legal obligations as set both by the country’s court as well as by the international community. And this is indeed very sad.
The author, currently a visiting lecturer at King’s College London Dickson Poon School of Law, is a former member of the Knesset Legal Department in charge of international and constitutional issues.