A
recent debate has arisen over whether Israel, from which Gaza procures
much of its power, is obligated under international law to continue
providing Gaza with power during the hostilities between them. Prof. Avi Bell of San Diego and Bar Ilan Universities, and my colleague at the Kohelet Policy Forum, wrote a detailed analysis of the question, and concluded there is no requirement to provide electricity.
His
memo drew an unusual response from Prof. David Enoch of Hebrew
University, who not only disagreed with Bell, but through the good offices of Brian Leiter, called for the legal academy to impose some kind of reputational sanctions against Bell. I may deal with the “academic bullying”aspect
in a latter post. Here I will address the substance. I hope my views of
the merits are not colored by the prospect of facing the kind of
academic ostracism threatened by Prof. Enoch.
Civilian
power stations are legitimate military targets in an armed conflict,
and have been heavily targeted by Western countries in most recent
conflicts. Thus even if Israel deliberately targeted the Gaza power
plant, this would be well within international practice. Yet the dispute
is not about bombing civilian power facilities – a subject much
discussed in law of war manuals and treatises – but rather the more
particular claim that Israel cannot switch off the power it provides to
Gaza from its own power stations (which happen to be under fire from
Gaza). I do not believe such an affirmative duty to provide energy to
one’s enemy has ever been suggested in any other context. Still, the
answer can easily be deduced from the targetability of enemy power
facilities.
Electrical
power plants are legitimate military targets in war, and have been
attacked by U.S. and NATO forces in both Gulf Wars, and the air campaign
over Serbia in 1999. In recent weeks Ukraine has shelled power facilities in
separatist held territory. While some human rights groups quibbled
about the particulars of these attacks, they did not meet with
condemnation by other states, and the attacks on Belgrade were not cited
as problematic by a ICTY inquiry.
There is no doubt that about the general principle that civilian power facilities remain legitimate military targets (See William Boothby, The Law of Targeting at 501-2). The military manuals of many Western countries, like the UK and Australia, specifically list electric facilities as legitimate military targets. (During the 2011 Libyan campaign, a top British generalcalled for bombing power infrastructure; while this views did not prevail, it was not denounced as criminal.)
To be
sure, such targeting must still comply with standard rules of
proportionality – that is, the civilian toll should be proportional to
the desired military advantage. But casting a big city into blackness inherently
comes with a high civilian cost. Yet it is not banned. Inevitably,
taking out power causes massive civilian disruption, and US and allied
strikes in Iraq left many without power for months. This suggests that
such disruptions are weighted quite lightly in the invisible scale of
proportionality. (Boothby notes that by some estimates 100,000 people
died from cholera and other indirect consequences of the destruction of
Iraq’s power grid in the First Gulf War.)
Targeting
power plants is of course a much heavier action than not supplying
power, for several reasons. For one, it may involve civilian casualties
from the actual bombing. Second, the destruction of the facilities may
put the power out of commission for a long time. Rebuilding will be
needed, and thus the damage could extend long beyond the conflict. When a
belligerent turns off the power it supplies, it kills no one, and can
switch it back on at any time: there is no damage to the infrastructure.
So if
one can blow up civilian power plants with people in them in a war, a
fortiori a belligerent can stop providing the power it had been doing
before the war.
Targeting
power facilities could require some showing of military advantage; this
should not be difficult given that the infamous infiltration tunnels
require power to light and ventilate. So the tunnels used to attack
Israeli towns and abduct an Israel soldier (a major coup for Hamas), are
powered in part by Israel electrical plants. (IDF sources tell me that
Hamas does not use generators for a variety of reasons; I suppose noise
would be one.) But this is irrelevant, because ceasing to provide power
is not a targeting decision.
So far
we’ve been talking about destroying enemy power installations. This is
permitted. A fortiori, simply not giving the enemy from one’s own power stations would
not even be a question. But Israel’s action would be even one step away
from that. The Palestinians have not been paying for the power they are
consuming. Their electrical bill is due. Bombing enemy power plants is
ok; not selling them power is a fortiori ok; and thus not letting them
take it for free is, for lack of a better term, a double a fortiori.
Some of
Bell’s critics argue that Israel is obligated to provide power because
it has blockaded Gaza, making it hard for them to build their own
infrastructure. I think this is wrong on the facts; plenty of
infrastructure has been built in Gaza, but just in the form of
infiltration tunnels. In any case, blockade is legal in international
law, and not accompanied by any self-defeating duty to give free
electricity to the enemy. But the targeting argument takes care of this
too. Targeting power plants does not create a self-defeating obligation
to provide the destroyed power. Thus a blockade that makes it more
difficult to build a plant that would during hostilities be targetable
would not create a duty of supply.
The
purported duty to provide electricity makes indentured servants of the
workers at Israel’s electrical facilities. If those workers went on
strike, would Israel be obligated under international law to enjoin it?
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