The question of whether Israel may legally punish the civilian population of the Gaza Strip in retaliation for Kassam rocket attacks by denying it electricity and water has two aspects.
The first has to do with whether Israel still occupies the area even after removing its settlements and troops in September 2005.
The second has to do with other aspects of international law, specifically the laws of war.
The question of Israel's status in Gaza has been a matter of intensive debate, especially among academics and human rights organizations, for the past two years.
Interestingly enough, the diplomatic echelon of the government has never made an official statement declaring its position on the matter.
When prime minister Ariel Sharon addressed the UN three days after completing the disengagement, he did not declare that the occupation of Gaza had ended.
In fact, the only unequivocal statement of the government's position on the Gaza Strip comes from the State Attorney's Office in response to several petitions charging that Israel still occupies Gaza and is therefore still responsible for the welfare of the Palestinian population there. In response to a petition by 10 Gaza physiotherapist students to study in the West Bank, the state's representative wrote, "Israel is not responsible for worrying about the various interests of the residents of the Gaza Strip. To whatever extent the residents have complaints about conditions in the Gaza Strip, they should direct them to the Palestinian Authority."
The human rights organization Gisha sharply disagrees with this position. According to Gisha, Israel completely controls the Gaza Strip's territorial waters, airspace and land border crossings. It collects the Gaza Strip's customs and is in charge of its population registry. Therefore, it continues to "effectively" occupy the Gaza Strip.
This position is backed internationally. The UN secretary-general's spokesman issued a statement saying: "The UN welcomed the Israeli disengagement from Gaza in August 2005. However, there has been no change in our characterization of the Gaza Strip as occupied territory."
According to Hebrew University international law expert Yuval Shani, if one believes that Israel still occupies Gaza, the measures being considered by the government are patently illegal. This is because, as an occupying power, Israel would be actively responsible for the welfare of the civilian population and would be violating the law if it did the opposite.
However, the question of Israel's status vis-Ã -vis Gaza is not the only factor that needs to be considered.
The laws of war demand that parties at war must distinguish between military and civilian targets and must do everything possible not to harm civilians. Even when striking at the enemy's military targets, the army must make sure that only a small number of civilians will be hurt.
Another basic rule in warfare, as well as occupation, is that the army is forbidden to carry out collective punishment.
According to Shani, who maintains that Israel no longer occupies the Gaza Strip, the legal situation is complex. According to the laws of war, the warring parties must direct their attacks against military targets rather than civilian targets. In this case, however, Israel can cut off Gaza's electricity and water supplies without attacking any target since it supplies these commodities to Gaza. Would such an act be equivalent to an overt attack on the enemy's civilian targets?
"It is my opinion," said Shani, "that in this situation, and given the question marks regarding Israel's status in Gaza and Gaza's long-standing dependency on Israel, cutting off its water and electricity supplies would be equivalent to a direct attack on a civilian target, especially given that the motive for doing so is one of collective punishment, which is, in itself, a problematic motive."
In an interview with the Internet site Ynet, former Foreign Ministry legal adviser Roby Sabel said, "Halting the supply of water hurts the civilian population disproportionately and is illegal. But since electricity and fuel supplies help manufacture rockets, we may harm them, but not to a degree that would cause too much injury to the civilian population."
Shani's bottom-line conclusion is similar to one that comes from a surprising source - National Infrastructure Minister Binyamin Ben-Eliezer. On June 28, Ben-Eliezer wrote to Gisha: "The minister of national infrastructure gave clear instructions that the question of water and electricity supplies to the Gaza Strip is beyond the boundaries of the dispute. In doing so, the minister is continuing his policy and the policy of the ministry, according to which the supply of humanitarian needs is not part of the conflict."