'What Israel cannot do is prevent everyone in the world from trading with Gaza, and then cut the amount of supplies that enter through its border," asserts attorney Sari Bashi, protesting the government's policy of withholding fuel and electricity from the Hamas-ruled Strip as a "punitive measure."
Sari Bashi, Director of Gisha.
Photo: Ariel Jerozolimski
The director of Gisha - Legal Center for Freedom of Movement, Bashi is the epitome of a person who speaks softly yet carries a big stick. Indeed, her easy eloquence belies the ardency of her human rights activism and legal advocacy - the kind more associated with anger than affability. And her youthful good looks and gentle manner contrast with the content of her scathing critique of the military's method of combating Kassam fire on Sderot. She even goes as far as to accuse the IDF of deliberately targeting innocent civilians.
"We are not talking about closing a border to prevent militants from entering Israel," says the 32-year-old Yale Law School graduate, who teaches a course in international law at Tel Aviv University and translated former Supreme Court president Aharon Barak's book, Purposive Interpretation in Law, into English. "We are talking about applying pressure on a civilian population... because the army doesn't have a better response."
In protest, a group of 10 Israeli and Palestinian human rights organizations, among them Gisha, petitioned the High Court of Justice to put a stop to such "illegal collective punishment." Last week, the petition was rejected.
During the interim between the last court hearing and final decision, Bashi met with The Jerusalem Post at Gisha headquarters in Tel Aviv to articulate her organization's legal and ideological position vis-a-vis the treatment of a population most of whom, she claims, oppose Hamas and favor finding a peaceful solution with Israel.
As for her personal view, Bashi (the daughter of an Iraqi-born Israeli father and an American mother) - who moved to Israel from New Jersey 10 years ago - says: "As a lawyer, I would say [the fuel and electricity slash] is illegal. As an Israeli, I would say that I expect something better from my elected representatives."
What was the content and purpose of the January 27 High Court hearing?
It was a hearing in the context of a petition [Albassiouni v. Prime Minister], that 10 Israeli and Palestinian human rights groups filed together, challenging the punitive measures taken against Gaza's civilian population. On September 19, the security cabinet decided to cut the sale of fuel and electricity supplies to Gaza. We argue that this is illegal collective punishment. Under international law, one is allowed to target militants, but not to intentionally harm civilians. This is why the Kassam fire on Sderot is illegal. And though Israel has a right to defend itself against the rockets, it may not respond by deliberately harming innocent civilians in Gaza.
One could argue that those "innocent civilians" elected Hamas, and support the ideology behind the Kassam fire. Under such circumstances, can Israel's measures really be categorized as collective punishment? Could they not be seen as directed against a militant society?
No. Most Gaza residents are not Hamas supporters. Most support a peaceful solution with Israel. Gaza residents elected Hamas in January 2006 to the same extent that West Bank residents elected Hamas in January 2006. That's not when the punitive measures began. The punitive measures began in June 2007, following a military takeover of the Gaza Strip by Hamas. Practically speaking, however, the power and fuel cuts are not harming the militants. Hospitals have been paralyzed. Forty percent of Gaza City residents have been deprived of access to clean water. Children are living in the cold and dark. In addition, Gaza is pumping 40 million liters of untreated sewage into the sea every day, because of a lack of electricity to run the treatment plant. That's the same sea that we share with them. This policy is illegal, dangerous and stupid.
The High Court subsequently rejected your petition [on January 30], on the grounds that "the Gaza Strip is controlled by a murderous terror group that operates incessantly to strike the State of Israel and its citizens, and violates every precept of international law with its violent actions," adding that Israel was "required to act against terrorist organizations in accordance with the norms of international law and abstain from deliberately harming the civilian population located in the Gaza Strip." Why is this not satisfactory to you?
The High Court's decision is an embarrassment to Israeli democracy and jurisprudence. Contrary to the rhetoric you quote, the decision authorizes Israel to punish civilians for the acts of militants - in violation of international law. The decision fails to address the central argument at issue - whether the fuel and electricity cuts constitute collective punishment, as the petitioners claimed, or economic sanctions, as the state claimed - but rather adopts, without explanation, the state's claim that it may cut fuel and electricity supplies, so long as it does not push Gaza residents below an undefined "humanitarian minimum," a minimum not recognized in international law. The court was unable to articulate a legally coherent justification for what the state is doing to civilians in Gaza, yet was unwilling to intervene in the state's actions, so it remained silent on the law, restricting itself to asking whether the fuel and electricity cuts have pushed Gaza residents below an undefined humanitarian "minimum," and then ignoring well-documented evidence of severe harm to humanitarian needs.
Are economic sanctions legal?
Economic sanctions against a party you don't control could be legal, but Israel controls Gaza's borders. In any case, sanctions don't allow you to prevent the passage of humanitarian goods.
What about the Egyptian side of the border?
The arrangement governing the Rafah crossing gives Israel veto power over the opening of the passage. The recent breach of the Gaza-Egypt border may involve coming to a new arrangement. I can't comment on how that arrangement would affect Israel's legal obligation, because we're not there yet. But it would never change Israel's obligation to allow the passage of humanitarian goods. International law says that there are some goods that must always be allowed to reach the civilian population, no matter who they are, no matter what their leaders are doing. On this point of law there's no argument, which why the court doesn't want to talk about the law.
