תרגום לאנגלית של פס"ד בבג"ץ 9132/07 בעניין עתירה כנגד צמצום אספקת הדלק והחשמל לרצועת עזה

JUDGMENT

President D. Beinisch:

1.         The petition before us is directed against respondents' decision to reduce or limit the supply of fuel and electricity to the Gaza Strip.  In their petition for relief from this Court, petitioners primarily argued the need for various types of fuel, gasoline and diesel, for the proper running of hospitals and water and sewer pumps, as well as the need for supply of electricity, whether via power lines originating in Israel or through supply of industrial diesel for running the Gaza Strip power plant.

2.         The circumstances surrounding the petition are the combat activities that have been taking place in the Gaza Strip for a long period, and the continuing campaign of terrorism directed against the citizens of Israel.  The terrorist attacks have intensified and worsened since the Hamas organization secured its control of the Gaza Strip.  These attacks include continual firing of rockets and mortar shells toward civilian communities inside the State of Israel, as well as terrorist attacks and attempted terrorist attacks directed against civilians and IDF soldiers both at the border crossings along the fence between the Gaza Strip and the State of Israel, and within the State of Israel.  Respondents' decision to limit the supply of fuel and electricity to the Gaza Strip was taken as part of the State of Israel's actions against the continual terrorism.  The wording of the decision, which was made by the Ministerial Committee on National Security Issues on September 19 2007, is as follows:

"The Hamas organization is a terrorist organization which has taken over the Gaza Strip and turned it into hostile territory.  This organization carries out acts of hostility against the State of Israel and its citizens, and the responsibility for such acts lies with it.  In light of that, it is resolved to adopt the recommendations presented by the security agencies, including continuation of the military and preventative activity against the terrorist organizations.  Furthermore, additional restrictions will be placed upon the Hamas regime, in a way that will limit the passage of goods to the Gaza Strip and reduce of the supply of fuel and electricity, and there will be restrictions placed upon the movement of persons to and from the strip.  The restrictions will be implemented after legal examination, taking into account the humanitarian situation in the Gaza Strip, and with the intention of preventing a humanitarian crisis".

The petition is directed against this decision.

3.         The petition against the decision was submitted on October 28 2007, and on November 7 2007 the petition was heard, with the parties present.  On the date of the hearing the State announced that implementation of limitations upon supply of electricity to the Gaza Strip had not yet been finally decided upon, and thus only arguments regarding the limitation of fuel supply were heard.  During the hearing, respondents' counsel stated before the Court that the State recognizes that it has a duty not to prevent the supply of goods to meet basic humanitarian needs to the Gaza Strip, and thus it announced that it will monitor the situation and verify that the cuts do not reach the extent of compromising basic humanitarian needs.  At the end of the hearing we determined that within seven days, the State would submit the data predicating its assessment regarding the effect of fuel supply reduction to the Gaza strip, and explain the ways of monitoring and of verifying the data with which it intends to safeguard the humanitarian needs of the inhabitants of the Gaza Strip.

Reducing the Supply of Fuel to the Gaza Strip

4.         On November 29 2007 we determined, regarding the part of the petition dealing with the reduction of fuel supply to the Gaza strip, that the fuel which the Palestinian Energy Agency purchases from the Israeli Dor Alon corporation, which is distributed by private suppliers to the highest bidder and without prioritization, can be distributed in another fashion.  We noted that the various types of fuel supplied to the Gaza Strip can be distributed according to prioritization that takes into account the humanitarian needs of the civilian population, as well as the running of the generators for operating the water pumps and electricity installations in the area.  In our decision, we attached weight to the State's position, according to which, during this period, in which there are combat activities and missile attacks against Israeli communities, part of the fuel entering the Gaza Strip is used, in fact, for various objectives of the terrorist organizations, and in those circumstances, the reduction of supply of fuel, in the measured way it is carried out, might harm the terrorist infrastructures and their ability to strike at the citizens of the State of Israel, considering that the amount of fuel inserted into the strip is supposed to suffice only for the humanitarian goals that require fuel.  Thus, we were not persuaded at that stage, according to the data relayed to us, that respondents' decision to reduce the amount of fuel brought into the Gaza Strip through the crossing points with Israel impinges upon the basic humanitarian needs of the Gaza Strip at this time.  Thus, it was determined that no order nisi or interlocutory injunction regarding the reduction of fuel supply (gasoline and diesel) would be granted.  This decision of ours was primarily based upon the State's commitment to monitor the situation in the Gaza Strip and verify that said reduction is not causing a humanitarian problem for the inhabitants of the Gaza Strip, as required by the law of Israel and international law.  Under these circumstances, we concluded the hearing of the issue of the limitations upon fuel supply to the Gaza Strip, and proceeded to examination of the arguments regarding the expected harm to the inhabitants of the strip due to the restrictions upon supply of electricity.

Reduction of Supply of Electricity to the Gaza Strip

5.         The hearing of the part of the petition regarding the reduction of supply of electricity to the Gaza Strip required complex factual examination, and we had difficulty receiving figures on this issue from the representatives of the State, and thus the proceedings on this issue continued, as on various dates we received detailed filings from petitioners, and written and oral responses by respondents.  On November 15 2007, petitioners submitted an urgent application for an interlocutory injunction in the framework of the petition, and on November 23 2007 they requested an urgent hearing of the petition in light of State's announcement, according to which, starting on December 2007, limitation of the amount of electricity supplied to the Gaza Strip would begin.  Petitioners argued that there is no physical way to limit the electricity to the Gaza Strip without causing power outages in hospitals and interruption of the pumping of clean water to the civilian population in Gaza, and without causing severe breakdowns in provision of basic needs.  Their main argument was that implementation of the decision would cause certain, severe and irreversible harm to the necessary humanitarian systems in the Gaza Strip, to hospitals, to the water and sewer system, and to the entire civilian population.

6.         According to uncontroversial figures, the amount of electricity needed for the Gaza Strip at peak times is a bit above 200 megawatts.  Approximately 120 megawatts are supplied by Israel, and about 17 megawatts are supplied by Egypt. The remainder is supplied by the Gaza Strip power plant.  The electricity supplied to the Gaza Strip by the State of Israel is supplied via 10 power lines, on four of which load limiters have been installed.  Respondents' intention was to reduce the supply of electricity through those four power lines in a gradual fashion, reducing 5% of the amount of the electricity relayed through each of the lines.  According to respondents' argument, that step would require the Hamas organization controlling the Gaza strip to carry out load management and to reduce the actual consumption of electricity in the area to which the relevant line supplies electricity, to prevent supply of electricity for the purposes of terrorist activity such as workshops for creating Qassam rockets, et cetera.  According to their arguments, if the regime in Gaza properly manages consumption of electricity, the flow of electricity from Israel to the Gaza strip will continue uninterrupted.  However, if consumption exceeds that permitted, the supply of electricity will cease automatically, due to the load limiters installed upon said four power lines.  Respondents emphasized in their response that said reduction of electricity does not compromise fulfillment of basic humanitarian needs of the residents of the Gaza Strip. 

7.         Petitioners argue that there is no physical way to reduce the supply of electricity to Gaza without causing power outages in hospitals, and interruptions in the pumping of clean water to the civilian population of Gaza, and thus that implementation of the decision will cause certain, severe and irreversible harm to the necessary humanitarian systems in the Gaza Strip, to hospitals, to the water and sewer system, and to the entire civilian population.  In their supplementary arguments of November 27 2007, petitioners argued in detail regarding the future reduction of electricity to the Gaza Strip, and according to their argument, even now, and since the bombing of the local power plant by the Israeli air force in 2006, the Gaza Strip has been in a situation of electricity shortage which has left the "Company for Distribution of Electricity" in Gaza with no other choice than to initiate power outages for a number of hours a day.  They argue that even now the frequent power blackouts disturb the functioning of necessary systems in Gaza, such as hospitals, since the infrastructure in the Gaza Strip does not allow differentiation between cutting the power off to necessary systems and cutting off the power to the civilian population.  In addition, it was emphasized that denying electricity to the homes of Gaza residents denies them the possibility of receiving clean drinking water to their homes, and harms the functioning of the water and sewer pumps.

8.         On November 29 2007 we held a hearing of the petition, in which we heard the arguments of the parties.  During the hearing, we also heard respondents' affiants, Colonel Shlomi Muchtar, Head of the Operations Department of the Unit of Coordination of Government Activities in the Territories, and Mr. Idan Weinstock, Director of the Electricity Authority in the Ministry of National Infrastructures.  For petitioners we heard petitioner no. 2, Mr. Maher Najar, Deputy Director of the Water Authority in the Coastal Municipalities Authority in Gaza.  After having heard the arguments of the parties and their affiants regarding the planned reduction of supply of electricity to the Gaza Strip, and as a result of the partial figures relayed to us, we found it appropriate to request supplemental submissions from respondents on a number of points, regarding the possibility of controlling the flow of electricity to the Gaza Strip, in order to prevent a blow to fulfillment of humanitarian needs.  We also ordered that until receipt of said supplemental submissions, the plan to reduce the supply of electricity to the Gaza strip was not to be implemented.

9.         During the period in which the petition was pending, petitioners once again requested that we obligate the State to continue regular supply of electricity to the Gaza strip, with no restrictions.  Their arguments focused mainly upon the fact that the local power plant, which provides electricity to necessary humanitarian locations, cannot function properly due to a severe shortage of industrial diesel fuel.  According to their argument, the amount of industrial diesel that respondents are allowing to be inserted into the Gaza Strip does not meet the needs of the power plant, and does not allow production of the amount of electricity which the residents of the strip need during the winter months.  According to the arguments, the shortage in industrial diesel caused a reduction of approximately 30% in the amount of electricity produced by the power plant in the Gaza Strip, leading to long electricity outages in the strip. It was emphasized that the industrial diesel provided to the Gaza Strip is used solely for producing electricity by the power plant.  On January 9 2008 petitioners submitted an update, in which they noted that as a result of the severe shortage of industrial diesel for the power plant in the Gaza Strip, power outages of eight hours every day were being carried out in central Gaza, and in the city of Gaza itself, outages of eight hours every two days were being carried out.  It was further argued that as a result of the reduction of electricity production, the central hospital in Gaza was suffering power outages of 6-12 hours every day, causing a breakdown in the activity of the hospital.  On January 21 2008 petitioners updated the Court, stating that due to the shortage in industrial diesel, the power plant in Gaza had stopped the production of electricity completely, leading to a shortage of approximately 43% of the amount of electricity needed by the residents of the Gaza Strip.  According to their arguments, on January 20 2008 respondents completely prohibited insertion of industrial diesel into the Gaza strip, and with no reserves, that led to the closing of the power plant.  In the circumstances which had developed, petitioners claimed that access to clean water was denied to many residents of the Gaza Strip, sewer water was flooding, and those residents needing to run various medical equipment in their homes were not able to do so.

10.        Respondents submitted a supplementary statement, in which they addressed the various arguments, as well as the dynamic changes in the factual situation.  It was noted that in a meeting between Head of the Operations Department of the Unit of Coordination of Government Activity in the Territories, Colonel Shlomi Muchtar, and the representatives of the Palestinian Energy Authority, the Palestinian representatives had relayed that the Palestinians are able to control loads through reduction of the consumption of electricity in the area of distribution of each power line, and that such control is being exercised already; thus, for example, the Palestinian representatives confirmed that they are able to reduce the consumption from a certain power line in order to allow the proper functioning of the hospital.  We came to understand further that as a result of an agreement between the Electric Company of Israel and the Palestinian Authority in 2005, the supply of electricity through two of the lines providing electricity from Israel to the Gaza strip was restricted to 11 megawatts.  Respondents stated that, indeed, the Nachal Oz crossing, through which the industrial diesel fuel needed to run the Gaza power plant enters the Gaza Strip, had been closed for a number of days, and thus transfer of industrial diesel to the power plant in the Gaza Strip had been prevented during those days.  Respondents explained that the closing of the crossing and the prevention of passage of industrial diesel to the power plant took place in circumstances of a most severe missile attack against Israel, in which during the period between 15-18 January 2008, 222 mortar shells had been shot toward the Israeli communities bordering the Gaza Strip, Ashkelon, and Sderot, wounding 7 civilians, and causing many cases of trauma and great damage.  Despite that - so we were informed - it was decided that the amount of industrial diesel inserted into the Gaza strip would total 2.2 million liters a week, just as it had been previous to the reduction plan.  Regarding the supply of electricity supplied by Israel, respondents noted that they intend to carry out a gradual reduction in three power lines only, of 5% of the total current in each of those lines, so that the amount of electricity supplied through them will total 13.5 megawatts in two of them, and 12.5 megawatts in the third.  Respondents emphasized in this context that the Palestinians themselves announced on a number of occasions that they are able to carry out load reductions in case of restrictions upon the power lines, in order to prevent harm to humanitarian objectives.  Last, respondents noted that the breaking open of the Rafiah passage into Egypt, carried out unilaterally by the Palestinians, might have implications upon the entire situation in the Gaza Strip, and upon the entirety of the State of Israel's duties to toward the strip, but added that the latter subject is a new development and is being examined from the factual, legal and political standpoint.  On January 27 2008 we held a hearing that focused upon the supply of industrial diesel fuel to the Gaza Strip, in which the parties reiterated their main arguments, as detailed above, and the State announced, as mentioned, that industrial diesel fuel would be inserted into the strip at the same volume that it had been in the past.

Discussion