Friday, August 01, 2014


 Eugene Kontorovich August 1
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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