'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."
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.
If Israel did not curb Gaza's fuel and electricity supply, and instead undertook a massive military operation to stop the Kassam fire, would that be acceptable under international law?
Any military action is legal or illegal depending on how it is conducted.
One of the legal terms bandied around during the Second Lebanon War was "proportionality." Does it apply here?
No. Because this is not a combat maneuver in which the question is whether, in the process of trying to harm militants, you may accidentally hurt civilians. And if you do, the issue of proportionality arises. In this case, the target is civilians.
Is this not aimed at causing the civilian population to pressure the militants to stop their activities?
You are not allowed to make civilians suffer to pressure militants.
In the case of Iran, for example, there is an argument about imposing a strict blockade, a move which would harm the civilian population, many of whom do not support the regime. Still, the hope is that if hindered enough, the populace will overthrow their leaders.
This isn't analogous. Even in the case of economic sanctions, there are legal tests that look at proportionality - at the extent to which civilians are hurt. An economic sanction is the withholding of something that is your sovereign right, such as your choice to trade or not to trade with another country. States are allowed to do that, subject to certain restrictions. Israel is not choosing whether or not to trade with Gaza. Israel is saying that Gaza may not receive fuel and electricity from anywhere else in the world, and restricting what is received through its borders.
The European Union is buying 100% of the industrial diesel fuel for Gaza's power plant. This is a humanitarian donation project. But, if the EU were to bring canisters of industrial diesel on a ship and try to dock it in Gaza, Israel's navy would sink the ship. If the EU were to fly it in by plane, the Israeli air force would shoot down the plane. Israel requires the EU to bring the industrial diesel through the Nahal Oz border crossing. This is not trade. This is a blockade in which Israel decides the terms under which people may bring humanitarian goods through the blockade. This is unprecedented.
Furthermore, between Israel and Gaza there are specific obligations. Gaza is occupied territory under international law. This means that Israel owes positive obligations to actively facilitate the provision of humanitarian services and the functioning of normal life in Gaza. The reason for this is control. Israel controls the funding of public services in Gaza, through its control of the tax moneys collected on behalf of the Palestinian Authority. These are the tax moneys that pay public servants in Gaza. Israel also controls the Palestinian population registry, determining who is a resident of Gaza, who may live there, who may enter. And Israel controls Gaza's borders: land, air and sea. That control creates responsibility.
What about Israel's responsibility to its own civilians? You describe its total control of Gaza's borders, yet it has a total lack of control when it comes to preventing or stopping Kassam fire. In a situation like this, how could Israel deal a blow without harming the civilian population?
But that's not the issue here. It's not that Israel is firing on militants. We're talking about fuel and electricity.
Does curbing fuel and electricity not harm the militants as well?
Explain to me how, because I don't understand. We asked the army to articulate a rational relationship between the legitimate goal of stopping the Kassam fire and the measures taken of cutting fuel and electricity across the board, mostly harming hospitals and water wells. We got no answer. This is because there is no rational relationship. This is about anger. This is about a military that doesn't have a solution to the Kassam fire, but wants to show the Israeli public that it is being tough and making civilians in Gaza suffer, too. Indeed, the politicians have been saying, "If it's not quiet in Sderot, it won't be quiet in Gaza."
If the policy were really one of "an eye for an eye," why wouldn't the IDF be returning missile fire on civilians? Aren't the current measures a milder way of getting the Gaza residents to combat their own militants? Hamas is their government, after all.
Most people view this as a military takeover, with an armed group in control of Gaza right now.
Are you saying that the Gazans are victims of the Hamas takeover?
I'm saying that it is absurd to think that if a mother suffers enough because her child doesn't have heat or light, she is somehow going to overthrow Hamas.
In a recent paper, "The Assault on Israel's Right to Self-Defense," Abraham Bell, the director of the International Law Forum at the Jerusalem Center for Public Affairs, writes: "Israel's imposition of economic sanctions on the Gaza Strip, such as withholding fuel supplies and electricity, does not involve the use of military force and is therefore a perfectly legal means of responding to Palestinian attacks, despite the effects on Palestinian citizens... Since Israel is under no legal obligation to engage in trade of fuel or anything else with the Gaza Strip, or to maintain open borders with the Gaza Strip, it may withhold commercial items and seal its borders at its discretion, even if intended as 'punishment' for Palestinian terrorism." Can you respond to this?
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.
About your specific petition, Bell writes: "...the Israeli Supreme Court implied that it interpreted domestic Israeli administrative law to require the Israeli government to maintain a minimum flow of Israeli-supplied necessary humanitarian goods when engaging in retorsional acts such as cutting off the Israeli supply of electricity to Gaza. Thus, even if there were a legal basis for considering Gaza Israeli-occupied territory, Israel would be fulfilling its duties under the Fourth Geneva Convention.
"However, there is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of another 'High Contracting Party' (i.e. a state party to the convention) and the occupier 'exercises the functions of government' in the occupied territory. The Gaza Strip is not territory of another state party to the convention and Israel does not exercise the functions of government - or, indeed, any significant functions - in the territory. It is clear to all that the elected Hamas government is the de facto sovereign of the Gaza Strip and does not take direction from Israel, or from any other state."
Here the author is reverting to an argument according to which the West Bank and Gaza Strip were never sovereign territory of a high contracting party, a state party to the Geneva Convention, and therefore they weren't occupied and the Geneva Convention didn't apply to them. This argument was abandoned by the state as far back as the 1980s, after which it acknowledged that the West Bank and Gaza were territories under a belligerent occupation.
In 2005, the state began to claim that Gaza was no longer occupied, pointing to the fact that the military government there had been canceled. But that's not the test of occupation under international law. The test is Article 42 of the 1907 Hague Convention, which says that "territory is occupied when it has actually been placed under the authority of a hostile army." That test is generally known as "effective control."
Since the 1990s, Israel's responsibilities in Gaza and the West Bank were reduced in areas where the PA was genuinely exercising control and Israel was allowing that control to be exercised. This still applies. Israeli law recognizes that there is no legal vacuum - that no administrative body can exercise control without its being bounded by law. Today, Gaza residents are at the mercy of the Israeli military for how much fuel and electricity they will have, and whether they get food and medicine. Over the last seven months - and more dramatically over the last few weeks - that control has been choking the ability of Gaza residents to lead normal, healthy lives.
Beforehand, were Gazans able to lead "normal, healthy lives"?
Unfortunately not. Israel has imposed a closure regime on Gaza since the early 1990s. With disengagement in 2005, Israel closed Gaza's borders in ways that have been detrimental. For example, between September and November of 2005, Gaza was completely sealed. In the winter of 2005-2006, the Karni Crossing - the main commercial crossing allowing goods to enter Gaza - was closed most of the time. Beginning in June 2006, when Gilad Schalit was captured, Israel closed the Rafah crossing 75% of the time. Israel also blocked access between Gaza and the West Bank. In June 2007, following the Hamas takeover, Israel closed all Gaza's borders.
This has paralyzed the Gazan economy. People are becoming poorer and poorer, and they are trapped.
But disengagement was a response to the suicide bombing war waged by the Palestinians against Israel, and each closure was done as a result of terrorism. Furthermore, any time a crossing is reopened, another terrorist activity or kidnapping is executed; and in the last seven months, the residents of Sderot have been under continuous missile fire.
Israel has a right to take security measures to ensure that militants or weapons don't enter Israel through its border with Gaza. But I don't understand how preventing medicine, food, fuel and electricity from reaching hospitals, schools and homes in Gaza is responsive to Israeli security needs. We are not talking about closing a border to prevent militants from entering Israel; we are talking about applying pressure on a civilian population deliberately, as a punitive response, because the army doesn't have a better response. As a lawyer, I would say this is illegal. As an Israeli, I would say that I expect something better from my elected representatives.
This policy of pushing Gaza residents to the edge is bad for them, but it's bad for us, as well. Whether we like it or not, these are our neighbors. And we can choose whether to allow our neighbors to access the skills, the physical well-being and the resources they need to build a pragmatic and prosperous society, or whether to reduce them to charity dependence and desperation. I'm sorry to say that our leadership is choosing the latter.
But isn't this the same leadership that has desperately been trying to come up with some formula for peace with PA President Mahmoud Abbas, whom it recognizes as the legitimate representative of those Palestinians who purportedly want an agreement with Israel? Isn't this the same leadership that is willing to make serious territorial concessions, including on Jerusalem?
I'm talking about the civilian population.
Can the civilian population build what you call a "pragmatic and prosperous society" while under such an extremist regime?
The peace process is based on recognizing Gaza and the West Bank as a single territorial entity - legally, politically and geographically. A peace negotiation based on driving Gaza residents to desperation and destroying their ability to be partners for peace is one that serves neither Israel nor the Palestinians.
We need to be realistic about where we're going to be in the long term. The polls clearly show that most Gaza residents support a negotiated agreement with Israel. But there are certain preconditions for a peaceful relationship, one of which is enabling your neighbors to lead normal lives. The first thing we can do as part of the peace process is to stop punishing and undermining the pragmatists in Gaza.
Yet Abbas tried to form a national unity government with Prime Minister Ismail Haniyeh and failed. Hamas's declared goal is jihad against Israel and the West. How can any "peaceful relationship" emerge under such conditions?
You're talking about Israeli policy toward Hamas. I'm talking about Israeli policy toward the Palestinian people. I'm talking about Gaza residents who are there to stay, regardless of who their leadership is today, and regardless of who their leadership will be in a year.
You say Israel has to enable its neighbors to lead normal lives with a flourishing economy, and cultivate the pragmatists. Aren't you leaving out the radical Islamic ideology that makes such an endeavor impossible?
No. Whatever policy Israel wants to have toward Hamas has to be a policy toward Hamas and not toward civilians.
Can the two really be separated?
Absolutely. It would be smart of us to separate them. It would be smart of us to make it clear that we're not fighting civilians. This would help us effectively fight more militants.
Are you suggesting we join forces with the civilians to fight Hamas and overthrow its rule?
I am not suggesting what we do; I am saying what we shouldn't do. And what we shouldn't do is push civilians to desperation and extremism.
Do you really believe that desperation leads to extremism? Haven't we seen extremism flourish in the radical Islamic world, regardless of economic conditions? Take Osama bin Laden, for example - a rich boy-turned-terrorism czar.
Let's look at the particular kind of desperation in Gaza, and the particular kind of extremism it has led to. The Israeli closure of Gaza since June 2007 has prevented merchants and ordinary people from working and making money through a legal economy. As an "emergency" measure, Hamas began running tunnels with a lucrative trade of cigarettes, cash, cheese, weapons, militants, medicine - and making a lot of black-market money from that.
At least 70,000 people have lost their jobs in Gaza since then. Those people are being given aid money by Hamas and other Islamic charities. I would rather those people have the ability and the right to work and make their own money and not be dependent on charity. That kind of charity dependence does not strengthen moderation. And I can tell you from conversations with people in Gaza that they're begging us to stop. They're saying, "You're killing the moderates."
People in Gaza are just like people anywhere else. They want the same basic things. They want to be healthy and happy and earn a little money. The more we prevent them from doing that, the more we drive them to desperation. I don't want my neighbors to be desperate. I want them to be self-sufficient and pragmatic.
But, since 1967 - up until the height of the second intifada - the Palestinians made their livelihood in Israel. That began to slow, and eventually stopped from Gaza, as a result of their own belligerent behavior.
It's more complicated than that. It was part of a broad system of intifada, collapse of peace process and measures taken by both sides. Workers from Gaza were entering Israel until March 2006. Israel didn't decide to stop letting them in because they were doing something wrong in Israel. It was a political decision that had nothing to do with the workers. And the effect was further isolating Gaza and hurting its economy.
But some of the many terrorist attacks committed against Israelis were carried out by Palestinians employed by them. Jihadist ideology seems to be as strong a draw, if not stronger, than health and pragmatism among many Palestinians, as it is in the rest of the radical Islamic world.
I don't share your analysis. Certainly we should be worried by the spread of militant behavior that targets civilians. We live in the Middle East, after all. But I think that what we're doing now is shortsighted. Ours is a weak leadership that doesn't want to come up with a real solution, and so instead is just lashing out against people who are not part of the problem, but could be part of the solution. The residents of Sderot need for rockets to stop falling on their children. They don't need for children in Gaza to suffer, too.
If the state were to reopen the borders for the free passage of fuel and electricity into Gaza, what then? Are you saying the rocket fire will cease?
We are a human rights organization. It's the military's job to protect the security of the Israeli people. It is also their job to make sure that in doing so they don't violate the law. But they are violating the law, which is why we're asking them to stop. I do not minimize the difficulty of their task. But they are responding in a way that is completely unresponsive to the very real needs of Sderot residents for safety and security, and that is causing massive suffering to a million and a half innocent civilians who don't have a way of protecting themselves.
How has your organization helped those Palestinians who "don't have a way of protecting themselves"? Give an example of what you would consider a victory on your part.
Gisha is an organization [funded by foundations, mostly in Europe, some in the US and a bit in Israel] that advocates for the kind of freedom of movement necessary to allow human and economic development in Palestinian society. We do that in the belief that it's good not only for Palestinian society, but for Israeli society, as well.
Up until October 2006, there was a total ban on Palestinian students from the West Bank studying at Israeli universities. We brought a court petition on behalf of a very talented doctoral student from Anata, who wanted to fulfill her dream of being the first female professor of chemistry in the West Bank. She received a full scholarship to study at the Hebrew University, but was not allowed to enter, because of this total ban. As a result of our petitioning the court, she was allowed to study - she's currently in her second year - and the army now has to allow Palestinian students to study in Israel, though we're still arguing with the army about the details of the new policy.
Do you also help Palestinians combat human rights violations on the part of the PA?
We have Palestinian partner organizations that do that. We feel that each organization is best suited to talk to its own government.
How would you rate your successes against theirs? Do you come up against the same problems as your Palestinian counterparts or different ones?
As an Israeli human rights activist, I have a lot more freedom of speech than my Palestinian colleagues have. I can be tremendously critical of the military's behavior and of the court's response. I can pretty much say what I want to say.
Israel is a 60-year-old democracy. In the Palestinian territories, there's a fledgling authority struggling to govern, so they're also busy dealing with basic institution-building, constitution-building and injecting human rights values into a traditional society. I don't know if you can compare success rates. Both sides are working on the challenges that each faces.
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