Kerem Shalom Crossing, August 28.
(photo credit: MARC ISRAEL SELLEM)
Top government officials, NGOs, and academics at the Hebrew University of Jerusalem heatedly debated Tuesday night whether Israel has a legal obligation to permit cement to enter Gaza following this summer’s war with Hamas.
The two-day conference sponsored by the Minerva Center covered a range of questions about obligations to provide humanitarian aid beyond just the Israel-Hamas case. It also dealt with facilitating dialogue among all sides of the issues, as Deputy Attorney-General for International Affairs Roy Schondorf said in his closing speech.
Some of the high points of the conference came from new post-war arguments that have arisen on the cement issue.
NGOs and much of the international community have criticized Israel for banning or limiting the entry of cement into Gaza, accusing it of violating its obligation to provide the civilian population with material to reconstruct homes and other facilities.
Israel has always responded that it is preventing cement deliveries because they were previously used for constructing terrorist tunnels – an argument that the international community views as groundless or a cover for Israel wanting to punish Hamas economically.
The uncovering, extensive filming, and destruction of over 30 such terrorist tunnels during the Gaza war appeared to have tilted the argument on the issue in Israel’s favor in light of the overwhelming proof of Hamas’s extensive use of Israeli-manufactured cement throughout its long tunnel network.
But Gisha founder Sari Bashi presented new statistics on the cement, tunnels, and rebuilding in Gaza that could undermine the fleeting edge Israel may have had in the debate.
Bashi said that all Hamas needs to rebuild all of the 30 destroyed tunnels is 12,690 tons of cement.
In contrast, she said that the reconstruction of Gaza will require some 8.5 million tons of cement – meaning that Hamas’s tunnels require less than 1% of what rebuilding Gaza requires.
Bashi added that currently the IDF is permitting only 500 tons of cement into Gaza per day for rebuilding, noting that without a drastic increase in permitted cement deliveries, it would take 7,044 days or 19 years for Gaza to be rebuilt.
Next, she said that in spite of Israeli restrictions, Hamas already has other ways of getting cement for its own needs and is already rebuilding for itself.
In other words, she said that the bottom-line of Israeli restrictions on cement is that Hamas is rebuilding for itself anyway and that there is an even greater shortage of cement for regular Gazan civilians and for UN facilities.
Bashi also argued that 19 years would be an extremely unreasonable time for Gazans to wait to fully rebuild and that Israel’s security requirements are therefore disproportionate, violate its international law obligations to Gaza, and anyway fail to achieve its security goals.
Justice Ministry official Gilad Noam responded that the departure point for the issue has to be the legal principles applicable to Israel-Hamas relations.
He rejected Bashi’s and others statements that the applicable legal principles are the laws of occupation and the heavier responsibilities those laws place on an occupying state to look after an occupied people.
Rather, Noam said that Israel’s withdrawal from Gaza in 2005 and the state of war between Israel and Hamas (though the summer ended in a cease-fire, the parties are legally in a state of war absent a peace treaty) mean that the law of armed conflict applies to their relations, which reduces Israel’s humanitarian obligations to Gaza to avoid a humanitarian crisis.
He said that Israel has no obligation to let cement through that would reach its enemy, Hamas, and that Israel has a right to establish mechanisms to ensure that cement permitted to enter Gaza does not reach Hamas.
Noam added that, even as Israel argues it is not legally bound to permit deliveries of certain items other than to alleviate crisis, on a moral basis it wishes and tries to go beyond its legal obligations, noting that Israel permitted 5,779 trucks of humanitarian aid to enter Gaza during the war.
Schondorf echoed Israeli seriousness in addressing humanitarian issues, noting that the High Court of Justice has in the past demanded IDF commanders show up in court in the middle of war to be confronted about how they could improve the humanitarian situation in Gaza.
While the Justice Ministry was well-represented, multiple speakers expressed disappointment that the IDF Spokesman decided not to send a legal expert as it has in past years.
The conference also included presentations by Hebrew University Law School dean Yuval Shany, leading international law expert Yoram Dinstein, International Criminal Court official Rogier Bartels, and several ICRC officials and other top academics.
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