The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. Prime Minster of Israel

On 30 January 2008, the Israeli Supreme Court rendered its decision in Bassiouni v. Prime Minister - a case dealing with a challenge to the legality of cuts in the supply of electricity and fuel to Gaza. These cuts, together with trade and travel restrictions, were decided upon by Israel's security cabinet in September 2007 as a reaction to the assumption of power by Hamas in Gaza and the escalation of rocket and mortar attacks from the Gaza Strip to adjacent Israeli towns and villages This note analyzes and assesses the findings reaching by the Court in paragraph 12 of the Bassiouni judgment that contains the Court's position on the applicable legal framework against which the sanctions should be evaluated. The Court identified in this paragraph certain factors that allegedly justify the imposition - in subsequent parts of the judgment - of a duty on Israel to continue and provide some basic supplies to Gaza. But, although this outcome may be intuitively right and just, the Court did not carefully explain the legal theory which connects (a) the factual relations that characterize the relations between Israel and Gaza; to (b) Israel's legal obligations vis-a-vis Gaza. Hence, the full implications of the decision are unclear and invite further analysis. The present note seeks to fill some of the gaps in the Court's judgment. It examines the Supreme Court's position that Gaza is no longer occupied and discusses three possible bases for imposing on Israel certain duties towards the residents of Gaza notwithstanding the end of occupation: obligations under international humanitarian laws (IHL) which ensue from the conclusion that Gaza is a non-occupied territory but subject to a state of siege, extra-territorial application international human rights law to the situation in Gaza, and possible post-occupation obligations.