Israel's Gaza policy combines military attacks with sanctions

Despite evidence over the past two decades that sanctions can harm a civilian population even more than the leadership which is the ostensible target — and in contradiction to its own arguments that sanctions are a more merciful instrument of pressure than all-out war — the Israeli military has continued in recent weeks to tighten sanctions against the Gaza Strip, while at the same time escalating its military actions.

Israeli Prime Minister Ehud Olmert has said several times in recent months that his country was engaged in a real war with Gaza – an appreciation that is shared by residents of the Gaza Strip in recent days.

What is happening now, Israeli analysts say, is a “measured escalation”.

Sanctions were officially imposed against the entire Palestinian Authority (PA) in early 2006 after Hamas’ victory in Palestinian Legislative Council elections. Hamas’ rout of Fatah security forces there in mid-June 2007 was the justification for a nearly-complete Israeli closure and the application of even more sanctions against Gaza — while sanctions were subsequently rapidly lifted from the Ramallah-based PA leadership.

Then, as firing of “projectiles” from Gaza onto Israeli territory continued, the Israeli Cabinet issued a declaration on 19 September determining that Hamas-run Gaza was “hostile territory”, or an “enemy entity”.

The Cabinet decided to continue “military and counter-terrorist operations against the terrorist Organizations”. At the same time, it also decided “to restrict the passage of various goods to the Gaza Strip and reduce the supply of fuel and electricity”, and to tighten restrictions on the movement of people to and from the Gaza Strip.

In late January, the Israeli Supreme Court (High Court of Justice) denied petitions submitted by a group of ten Israeli and Palestinian human rights groups to block military-ordered electricity cuts against Gaza. The Court had earlier declined, during the course of hearings, to intervene in the military-ordered fuel cuts.

The human rights groups had argued that the sanctions would target civilians, and would punish individuals for acts that they did not personally commit. They said that these sanctions amounted to collective punishment, which is illegal under international law.

But, they lost.

Israel supplies all of Gaza’s fuel, and more than half of Gaza’s electricity. Only Israeli-supplied water is unaffected.

Palestinian negotiator Saeb Erekat said in an interview after U.S. President George Bush’s meeting with President Mahmoud Abbas in Ramallah January that “Abu Mazen said that the humanitarian needs of the population in Gaza — including fuel, electricity, water, food and medical supplies — should not be touched, and Bush seemed to agree.”

Erekat added that Israeli Prime Minister Ehud Olmert had also pledged, twice, not to touch these vital supplies — the first time on 25 June at a meeting in Sharm El-Sheikh, and the second time in early January.

Israel’s military now makes all decisions about which persons – and which goods – can officially pass into or out of the Gaza Strip.

Only ten essential supplies are now being permitted into Gaza: cooking oil, salt, rice, sugar, wheat, dairy products, frozen vegetables, frozen meat, medical equipment and medicine.

Other essential items like cement or pipes or water are prohibited because the Israeli military says they can have a dual use – such as fortifying underground bunkers or concealed missile launchers, or making rockets.

Spare parts are also banned, and Gaza’s vital infrastructure is crumbling — threatening to throw the entire precarious situation into chaos at any moment.

It is an unprecedented regime of control and neglect, with no apparent mechanism of appeal.

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In its 27 January ruling, Israel’s Supreme Court adopted the government’s argument that Gaza is no longer occupied, following the 2005 unilateral Israeli “disengagement”, which removed 8,000 settlers and the Israeli Defense Forces protecting them, from Gaza.

The official claim that Gaza is no longer occupied is widely believed in Israel, though in few other places in the world.

International law experts say that Israel’s continued control of Gaza’s air and maritime space is sufficient to confirm that the occupation continues, without even entering into a debate over whether the Israel military maintains “effective control” inside the Gaza Strip.

The Court’s only concern was that there should be no humanitarian crisis, and the panel of judges who heard the case said they were satisfied with assurances given by the military that it would comply with Israeli law – and those aspects of international law that apply to Israel – and would continue to transfer “the necessary amounts of fuel and electricity for the essential humanitarian needs of the civilian population in the Strip”.

The state attorney, representing the military, told the court that “there is nothing to obligate them to allow the transfer of non-essential good or goods in quantities that exceed that which is needed to meet basic humanitarian needs”.

The Court noted, in its ruling, that “The security apparatus conducts a weekly evaluation of the situation that relies, in part, on communication with Palestinian bodies active in the areas of electricity and healthcare, as well as on communication with international organizations.”

But, Sari Bashi, director of the Israeli human rights group Gisha, which has taken a leading role in the effort to get the Israeli Supreme Court to block these sanctions, says, all these cuts “are completely illegal”.

The Court’s ruling at the end of January was a deep disappointment but not a surprise to the human rights petitioners, some of whom said that the Court has a history of taking the side of government policy.

In an excerpt from the Supreme Court ruling translated from Hebrew by Gisha, the judges wrote: “Under the current circumstances, the primary obligations borne by the State of Israel with regards to the residents of the Gaza Strip are derived from the state of armed conflict that prevails between it and the Hamas organization which controls the Gaza Strip; its obligations also stem from the degree of control that the State of Israel has over the border crossings between it and the Gaza Strip; and also from the situation that was created between the State of Israel and the Gaza Strip territory due to years of Israeli military control in the area, as a result of which the Gaza Strip is at this time almost totally dependent on Israel for its supply of electricity”.

According to Bashi, ´This is an unprecedented decision authorizing collective punishment in its most blatant form. The Court’s ruling relies on unsubstantiated declarations by the military and ignores the indisputable and well-documented evidence of harm to civilians caused by the fuel and electricity cuts…”

And, Bashi has said, we find the Court’s factual inquiry to be flawed.

Gisha has argued that Gaza is not an “enemy state” — but rather it is an “occupied territory”.

Bashi has said that “It is not allowed to cut civilian access to electricity, to deprive people of water or hospitals of fuel – not even a little bit”. “What’s happening in Gaza is very, very bad”.

In a lengthy interview with the Jerusalem Post interview after the Court’s decision, Sari Bashi explained that “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”.

Speaking with Al-Bayan last week, Bashi, a lawyer who participated in arguing this case before the Supreme Court, said the ruling “ignores the law – it doesn’t even try to address the legitimate legal questions we raised”.

In fact, she said, “the Court did not rule, but instead it just accepted the military claim it
Could make these cuts without causing any humanitarian damage”. But, Bashi said, the concept of a “humanitarian minimum has no basis in law”.

“I would even go so far as to say that we are more than disappointed, we believe the decision is illegitimate”, Bashi stated, “because once a court stops applying legal standards, it loses its authority”.

She said that the Court was “politically not prepared to intervene, in addition to staying silent on the law. It was under a lot of political pressure from the Justice Ministry which suggested that the Court would be responsible for Israeli casualties if it blocked the sanctions and thereby increased the likelihood of a ground invasion”.

“We are now pursuing other avenues, such as our advocacy efforts to highlight the responsibility of the international community”, Bashi said.

And, she added, “We’re in a constant process of raising issues and concerns with the military. We’re not in a rush to sue”.

Bashi also noted that “even among Israeli military officials, there is a recognition that the harsh restrictions that have been imposed on Gaza are not advancing any legitimate military goals – and they’re also illegal”.

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Gisha Legal Adviser Kenneth Mann said after the last hearing that the judges appeared to believe that if there are no physical injuries and casualties, there was no humanitarian crisis. “Gazans sitting in the cold and the dark for 12 hours or more at a time is not a humanitarian crisis for them”, he said.

The final Supreme Court hearing in Jerusalem was conducted almost as if the dramatic events at the Rafah crossing between Gaza and Egypt had not happened.

Bashi said afterwards that “We let the judges know that the state violated the request” for the appearance at the hearing of two Gaza professionals who are co-petitioners in the case, and who could have explained the technical details concerning the Gaza power plant and Gaza´s electricity-distributing company.

Dr. Rafiq Maliha, project manager of the Gaza Power Plant, and Engineer Nedal Toman, project manager of GEDCO, were informed that they would be given permits to participate in the Supreme Court hearing that Sunday. The two Palestinians arrived at the Erez terminal at 7 am. But, they said, they were not actually given the permits and allowed to leave until the court session started at 10 am.

Despite their best efforts, and a frantic taxi ride from the Gaza border to the Supreme Court in Jerusalem, the two professional experts were only able to arrive at the Supreme Court building about 20 minutes after the hearing was concluded by the judges, who decided not to wait for their arrival.

Toman has explained in several sworn affidavits presented to the Court that it is impossible to redirect electricity in Gaza. But, during the hearing, the state attorney told the Court – without the benefit of Toman´s presence for any questioning on this precise point – that some unnamed “Palestinians” had told the military the exact opposite.

The Court decided to allow itself to be convinced by the state and military assurances that it is not Israel’s intention to cause humanitarian damage in Gaza.

Any damage that results would therefore be accidental and unintended – and thus within the realm of legality.

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Since 7 February, the electricity that Israel’s Electric Company sells to Gaza, and supplies through three of ten direct-feed lines at various points across the Israel-Gaza border, has been gradually reduced, by military order, though the use of recently-installed “load regulators” that apparently can be operated like dimmer switches.

The military informed the court late last year that it would continue reducing the electricity on these lines at periodic intervals, until there is a stop to attacks from Gaza on Israeli territory.

But, so far, Gisha’s Sari Bashi said the military has confirmed that there has been only one reduction on one electricity line from Israel to Gaza so far – a 5% reduction on a line that supplies 14 MW. The military has written to her that restriction on supply of electricity from additional lines is to be done subject to an evaluation of the situation and evaluation of the effectiveness of the reduction. Such decision has not yet been made.”

The Palestinian Authority has a contract to buy 120 MW of electricity daily from the Israel Electric Company, but in recent months – even before the cuts were authorized — the supply was often somewhat less. In statements to the Court, the military has admitted factual errors, mistakes and “local error” which resulted in cuts of directly-supplied Israeli electricity despite the Courts previous request to hold off until it reached a decision. There have also been recent “technical problems” on some of the lines.

The Court in its ruling said “we found it hard to get information on this issue from the state’s representatives”.

The Israel Electric Company is paid by the Israeli Ministry of Finance from withheld Palestinian funds — taxes and customs duties collected under the terms of the Oslo Accords by Israel on behalf of the Palestinian Authority, but retained, ostensibly due to Hamas’ 2006 electoral victory, and only sporadically released to the Palestinian Authority in Ramallah.

Gaza’s own electricity-generating power plant was destroyed in an Israeli air raid in anger in late June 2006, after IDF Corporal Gilad Shalit was captured near the Kerem Shalom crossing (where the borders of Israel, Gaza, and Egypt meet).

Before the Israeli air attack, the Gaza power plant generated some 89-90 MW of electricity per day. It has been designed to be able to produce 140 MW.

Gaza’s current electrical demand is for some 240 MW per day.

It took months of reconstruction work — and negotiation with various parts of the Israeli government — to get in the materials needed, and there was a partial restoration of the Gaza power plant’s functioning in November 2006.

Since then, the power plant has been running on industrial diesel fuel which is ordered by the Palestinian Authority, and delivered by the private Israeli company Dor Alon. The fuel — costing some $10 million per month before the military-ordered cuts on 28 October — has been paid for by the European Union’s Temporary International Mechanism (TIM), because of the financial restrictions imposed after Hamas’ electoral victory. (The TIM has just been replaced by a new mechanism considered more suitable for the present circumstances).

Despite all these efforts, only half of the plant’s pre-strike capacity was restored. After reconstruction, it only got up to 65 MW per day, running two turbines at full loads — before the military-ordered fuel sanctions kicked in on 28 October.

Then, because the plant was allowed to receive only 2.2 million liters of fuel per week – not quite enough to run two turbines at full loads, it dipped into its reserves to continue operating at this level for a while, until the fuel reserves were depleted in early January.

Since then, Gaza’s power plant runs just on what it received daily. It is now operating two turbines at partial loads, and generating only between 45-55 MW of electricity per day – though it is now ready to add a repaired third turbine that could help produce 80 MW per day, if enough fuel were available (each turbine requires 160,000 liters of industrial diesel fuel per day, or 1.12 million liters per week, to operate at full loads.)

In January, the military nevertheless informed the Court that it believes 2.2 million liters of industrial diesel fuel per week is enough for Gaza´s power plant.

Now, without replenishment of the power plant’s fuel reserves – which has not been permitted — a shortfall on any one day could mean that the power plant would again have to shut down, as it did on 20 January for two days, after the IDF stopped fuel deliveries for a couple of days because of fierce fighting around the Nahal Oz crossing where fuel is transferred from Israel to the Gaza Stop.

Fighting in the last four days of February again caused another near-shutdown, because
fuel supplies were not being delivered to Gaza. One of the two turbines would have had to shut down on Friday, but according to the Office of the UN Special Coordinator for the Middle East Peace Process (UNSCO), Nahal Oz was opened for fuel that day, and 400,000 liters were delivered to Gaza from Israel. Some areas of central Gaza regularly experience power cuts of approximately 8 to 12 hours a day now, but a turbine shutdown could cause cuts of as much as 20 hours a day, UNSCO said.

These fuel cuts have exacerbated an already-existing shortfall in electricity in the Gaza trip, which is now being compounded by the electricity cuts.

As a result of the rolling electricity black-outs and brown-outs — and the lack of ordinary diesel fuel to operate back-up and stand-by generators — Gaza’s water utilities are emptying 40 million liters of raw sewage a day directly into the Mediterranean Sea, in an effort to avoid catastrophic flooding that could endanger human lives in the densely-populated Gaza.

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Egypt currently supplies 17 MW of electricity through one direct feed line from Rafah in the Sinai to the Rafah District in Gaza.

Egypt cannot offer an immediate solution to Gaza’s electricity problem – it cannot increase the amount of electricity it provides at the moment, as the line capacity is full.

However, according to Dr. Omar Kittaneh, head of the Palestinian Energy Authority in Ramallah, Egypt has agreed to build new lines with a capacity to carry up to 300 MW of electricity. “We’re expecting the line to be in operation at the beginning of 2009″, he said.

This could theoretically be enough to supply all the electricity needs of the Gaza Strip — though, Dr. Kittaneh noted carefully, “there are no commitments yet about the amount of electricity that will be supplied, only about the line capacity”.

Tenders will be issued soon, he indicated, and the cost for the new lines will be paid by a $32 million dollar grant from the Islamic Development Bank in Jeddah, Saudi Arabia.

These lines will not be simple feeder lines, which send electricity in only one direction, Dr. Kittaneh explained. They will be two-way lines capable of transmitting electricity in either direction over interconnected grids, interconnectivity is the modern policy choice being made by every country in the world now, Dr. Kittaneh added.

A connection from the West Bank to the Jordanian grid has also been approved, Dr. Kittaneh indicated.  It was reportedly inaugurated last week.

At a meeting of Arab League Ministers of Electricity last March — soon after the formation of the “National Unity” Palestinian Authority Government following Saudi mediation between Fatah and Hamas — this decision was approved by all seven countries who are part of an interlinked grid of seven regional electric authorities (Egypt , Jordan, Syria, Lebanon , Libya , Iraq and Turkey).

The Palestinian Authority recently presented a five-year Master Plan for reviving the Palestinian infrastructure and economy to a post-Annapolis meeting of donors in Paris in December, and it included a request for some $200 million to develop the electricity sector, Dr. Kittaneh indicated.

Converting the Gaza Power Plant operation from diesel fuel to natural gas would save a lot of money – over $45 million dollars per year at its present reduced level of operation, and almost double that amount if it were to operate at full capacity.

Gaza’s own offshore natural gas discoveries were supposed to help fuel the Power Plant – but negotiations concerning exploitation and marketing of this gas have been complicated, and they have recently been put on hold. That gas would not be available before 2011 at the earliest, in a best-case scenario.

Earlier this year, the World Bank suggested that the Palestinians might consider buying gas from Egypt meanwhile to operate the Power Plant more economically – a pipeline could be in place by 2009 — pending development of Gaza’s own offshore gas.

Last week, liquid natural gas from Egypt began flowing to Israel in a 100-km (63-mile) undersea pipeline from El Arish to Ashkelon, as part of a long-term bilateral deal between the Israeli-Egyptian consortium East Mediterranean Gas (composed of Egyptian General Petrol Corporation and Israeli businessman Yossi Meiman’s Merhav company) and Israel Electric Company.

That pipeline apparently runs through about 10 miles off shore though the area demarcated as the Palestinian maritime space off Gaza.

It was reported, around the time the Egypt-Israel agreement shaped up in 2005, that a part of the Egyptian gas going to Israel could be also piped to the Gaza Power Plant, which was originally designed to operate on gas, and could be converted back at a reasonable cost relatively quickly.

If order can be restored to the current chaotic situation in Gaza, this scenario could be dusted off.

Gaza’s dependence on Israel would be lessened, to everyone’s satisfaction.

And, the gas that could be diverted to Gaza’s power plant in the near term might be “repaid” once the offshore gas deposits in the Gaza Marine wells within Palestinian maritime space are developed.