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Al-Haq open letter to the European Union on Israel’s attempt to 'legalise' reprisals and collective punishment against civilians in the Gaza Strip
REF.: 26.2007E
31، Oct 2007

31 October 2007

Dear Excellencies,

As a Palestinian human rights organisation dedicated to the promotion and protection of human rights in the Occupied Palestinian Territory (OPT), Al-Haq is appalled by Israel’s policy to impose new sanctions, including restrictions on fuel, and ostensibly electricity, to the already beleaguered 1.5 million people in the occupied Gaza Strip. This meticulously staged move by the occupying power,

prefaced by the Israeli security cabinet’s unanimous declaration last month that the Gaza Strip is an “enemy entity,” amounts to unlawful reprisals and the collective punishment of the Palestinian civilian population.

On 28 October 2007, three days after Israeli Defense Minister Ehud Barak’s approval of the government’s proposal, fuel supplies into the Gaza Strip were cut. During the first day of the sanctions, diesel and benzene imports to the resource dependent Gaza Strip were reduced by 40 – 50 percent. Moreover, fuel to Gaza’s only power plant was curtailed by nearly 12 percent. Gaza’s fuel reserves are only expected to remain viable for a few days if these measures persist. At the same time, Israel closed the Sufa border crossing, leaving only one commercial crossing open between Gaza and the outside world. Operations at the remaining crossing, the Karem Shalom crossing, have also been curtailed, thereby allowing only a limited number of items in and no exports out. Israeli authorities forewarned that further measures, likely to include cuts previously approved by Defense Minister Barak on the electricity supply to the Gaza Strip from Israel, the supplier of two-thirds of Gaza’s electricity, should be expected next week.

In the month leading up to the imposition of these new sanctions, Israel has excessively emphasised in the media that at every stage of planning, authorisation has been sought from the state’s legal advisors. The 19 September decision by the security cabinet to declare Gaza an “enemy entity” was taken following what Israeli authorities characterised as a legal examination by the Foreign Ministry regarding how to define the Strip in order to allow Israel to impose sanctions under international law. The reason, as one Israeli minister characterised it was “[to] make it clear that to every Palestinian action, there is an immediate Israeli reaction against Gaza.” All subsequent plans over the next month to restrict the fuel and electricity supply to the Gaza Strip were devised on this basis, as so-called “lawful” punitive measures against the entire civilian population of Gaza for indiscriminate rocket attacks carried out by Palestinian armed groups on Israel. In the days leading up to the sanctions, Israeli Deputy Defense Minister Matan Vilnai stated: “Because this is an entity that is hostile to us there is no reason for us to supply them with electricity beyond the minimum required to prevent a crisis.” The Israeli security cabinet’s decision to implement the proposed sanctions regime was once again taken with the caveat that “the decision be legally sanctioned.” In granting his final approval to proceed with the sanctions on 25 October, Defense Minister Barak stated that his authorisation of the plan was conditioned upon legal [sic] approval from the Attorney General and the Military Advocate General.

Following the imposition of the sanctions on Gaza on 28 October, Israeli authorities retroactively denied the punitive aim of their plan, and instead claimed that the regime is part of a “gradual disengagement from Gaza.” This claim contradicts the very nature of the word sanctions, which can only be punitive in nature. Moreover, while sanctions are not unlawful per se, customary international law, binding on Israel, prohibits rendering useless objects indispensable to the survival of the civilian population. As fuel, electricity and by extension access to food, medicine, other essential humanitarian supplies, as well as clean water and functioning waste disposal are affected by these sanctions, the well-being of the entire Gazan population will be impaired. In view of the fact that the Palestinian people in the Gaza Strip have been suffering since the January 2006 elections from a siege and resulting humanitarian deprivations, the claims by a host of Israeli officials that a humanitarian crisis would not be allowed to develop in Gaza are inconsistent with the reality on the ground. Such a crisis predates this new round of sanctions, as John Holmes, UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, noted: "…in terms of a serious humanitarian crisis, yes, they were there already."

Further and importantly, there is no benchmark of human suffering in international law against which sanctions imposed as reprisals or collective punishment on a civilian population would be lawful. Reprisals are unconditionally prohibited under Article 33 of the Fourth Geneva Convention of 1949, as are collective penalties inflicted on persons or entire groups of persons for acts that these persons have not committed. Israel’s attempt to create a veneer of legality around its actions in the Gaza Strip in no way alters the obligation to refrain from the above acts nor Israel’s obligations as an occupying power to ensure the safety and well-being of the occupied population.

In light of the clear illegality of Israel’s actions, Al-Haq, along with a coalition of 9 other Israeli and Palestinian human rights organisations petitioned the Israeli High Court of Justice (the Court) on 28 October requesting that the Court take interim measures in the form of an injunction against Israel’s Minister of Public Security and Prime Minister, putting an immediate stop to the sanctions imposed on the people of Gaza until such time as the state provides its reasoning to the Court concerning its actions. The Court rejected the petition for an injunction, but nevertheless ordered the state to provide an explanation. Following the rejection of the petition for an injunction, the coalition petitioned the Court for an urgent hearing. The Court’s decision on this matter is still pending.

Al-Haq is grateful to the EU for repeatedly expressing its concerns in recent weeks about Israel’s imposition of collective punishment on the people of Gaza. However, we urge the EU to leave no doubt in the minds of Israeli authorities that Israel’s obligations towards the occupied population are legal obligations and not a matter of beneficence. In keeping with this, we request that the EU undertake the following:

• To rigorously implement the European Union Guidelines on promoting compliance with international humanitarian law (2005/C 327/04) in order to ensure Israeli compliance with international law, including through public statements reaffirming the unlawfulness of Israeli reprisals in the form of collective punishment against the people of the Gaza Strip; and
• As per Article 2 of the EU/Israel Association Agreement, suspend the agreement should Israel persist in violating the human rights of the Palestinian people.

Shawan Jabarin
General Director