Water: one law for Palestinians, quite another for settlers

Israel’s destruction of cisterns due to the lack of building permits in Area C of the West Bank

LEGAL BRIEF on the ongoing destruction of Palestinian-owned rainwater storage cisterns by the Israeli Civil Administration in Area C of the West Bank, due to lack of building permits
diakonia.se/ihl
September, 2011

Everyday, throughout the sections of the West Bank exclusively under Israel’s control (Area C), rain water harvesting cisterns face administrative demolition orders from the Israeli Civil Administration due to the lack of building permits. Cisterns are vital to the livelihoods of marginalized Palestinian rural and herder communities in the West Bank who rely on them to provide water for livestock, crops and sometimes for domestic water usage in the absence of an adequate network connection. Since 2009, a total of 44 cisterns and rainwater collection structures in Area C have been demolished, twenty of them between January and July of 2011.

Those demolitions have directly affected the lives of 13,602 Palestinians. Having lost their access to water, 127 people have been displaced, including 104 children. The Diakonia IHL Resource Centre weighs in on how this practice, in which thousands of Palestinians are directly affected each year, stands in relation to International Humanitarian Law.

This legal brief focuses on the ongoing destruction of Palestinian-owned rainwater storage cisterns by the Israeli Civil Administration (ICA) in Area C of the West Bank, due to lack of building permits (commonly referred to as “administrative” destructions). The analysis is based on international humanitarian law (IHL) with a human rights perspective. Initially, the brief highlights key legal aspects of the Israeli planning regime in Area C. It elaborates on the special legal status of cisterns, and identifies the scope of prohibition against their destructions under IHL. Lastly, it examines the implications of inadequate planning for and destruction of cisterns on the occupier’s humanitarian and human rights obligations towards the protected Palestinian population, including the delivery of aid in Area C.

Quick Facts
Area C comprises 62% of the West Bank
313,000 Palestinians from 113 communities are not connected to a water network
42,000 Palestinians are ‘critically vulnerable’, accessing less than 30 litres per, and facing at acute risk of displacement
441 communities in the West Bank have access to or consume less than 60 litres of water per capita per day
44 cisterns and rainwater collection structures in Area C have been demolished by the ICA since 2009, 20 of these have been demolished between January and July 2011, affecting 13,602 Palestinians and displacing 127 (including 104 children)

The practice of cistern destruction should be seen in the context of others, such as denial of access to, and exploitation of natural resources including water; the restrictions of movement of Palestinians, the establishment of Israeli settlements and the construction of the Wall which continuously reduces available space for Palestinian development and construction in Area C.

Planning institutions and policies do not serve Palestinian welfare and are unlawful
Systematic and widespread administrative destruction of a range of civilian structures in area C, including homes, schools and cisterns, has been taking place since the end of 1980s.

Since 1971 and thereafter, the Israeli military commander and the ICA have significantly limited Palestinian representation and participation in the planning process through changing the local laws in the West Bank. In contrast, settlers’ representation and participation was established and guaranteed by military orders, creating a separate but unequal planning regime for Israeli settlements. Beyond the institutional level, the ICA has adopted planning policies in Area C that substantially restrict areas permitted for building Palestinian residential and livelihood related construction. It often presents insurmountable bureaucratic requirements for plans and permit applications.

According to UNOCHA, “in practice, the Israeli authorities generally allow Palestinian construction only within the boundaries of an Israeli approved plan and these cover less than one percent of Area C, much of which is already built-up.” Eventually, the lack of Palestinian representation and participation in the planning institutions, alongside restrictive planning policies, has led to increased vulnerability of Palestinian civilian structures to the constant threat of demolition. Because of dire need for housing and civilian infrastructure, many Palestinians are forced to build without the requisite permits.

The institutional change introduced by the Israeli military commander, and later by the ICA, has violated both the obligation to ensure the public order, safety and public life of the protected Palestinian population, and to respect the local planning law applicable in the West Bank, according to articles 43 of the Hague Regulations of 1907 and 64 of the Fourth Geneva Convention of 1949 (IVGC).

It also violates Palestinians’ human rights, such as the right to participate in public affairs and the take part in the planning process as part of the right to an adequate standard of living. Establishing separate but unequal planning institutions for Palestinians and settlers does not only reinforce the unlawful construction of settlements (article 49 IVGC) and disregard the special protected status of Palestinians (article 4 IVGC), but also discriminates between settlers and Palestinians in exercising their basic rights through the planning process.

The unlawfulness of the planning institutions and their policies renders the exercise of subsequent authorities, such as the destruction of constructions that lack permits, including cisterns, similarly illegal.

Cisterns are vital to the livelihood of vulnerable Palestinian communities in Area C and should not be destroyed.
Rainwater harvesting cisterns are vital to the livelihoods of marginalized Palestinian rural and herder communities in the West Bank who rely on them to provide water for livestock, crops and sometimes for domestic water usage in the absence of an adequate network connection.

According to the UN Agriculture Sector and the Water, Sanitation and Hygiene (WASH) Cluster in the occupied Palestinian territory, a total of 44 cisterns and rainwater collection structures in Area C have been demolished by the ICA since 2009 for being built without a permit. Twenty of them have been demolished between January and July 2011.

Destructions included cisterns that were privately constructed for civilian use or part of humanitarian aid projects. Cisterns, by definition, fall within the specifically protected category of objects identified in IHL as essential for the survival of the civilian population. Those are defined in Article 54 of the First Additional Protocol to the Geneva Conventions of 1977 (IAP). This also reflects customary international law, based on which, cisterns may either be considered as “drinking water installations” or “irrigation works”. While the prohibition against destruction of essential objects under article 54 applies directly in hostilities, it should nevertheless be also followed a fortiori during occupation when the occupier has alternative means of achieving their military objectives other than through demolition.

Therefore, article 54 IAP sets the ground rule regarding essential objects vis-à-vis the general rule prohibiting the destruction of civilian objects according to article 53 IVGC (as will be discussed in the next chapter). According to article 54 essential objects that are used solely by civilians during occupation should never be destroyed. Article 54 also sets the rule regarding the application of administrative powers by the occupier under regulation 43 of the Hague Regulations. Essential objects should not lose their special protection due to enforcement of planning laws. This is especially important in long-term occupation, when law and order powers are frequently exercised. If law enforcement arguments are used to justify the destruction of essential objects, IHL safeguards for the civilian population will be severely undermined and, contrary to the welfare of the protected population, amount to abusing the occupier’s civil authority under regulation 43 of the Hague Regulations.

The destruction of cisterns cannot be justified under military necessity
As mentioned above, destruction of any civilian object during occupation is prohibited under article 53 IVGC “except where such destruction is rendered absolutely necessary by military operations”. Only in case where essential objects, such as cisterns, are also used for military purposes, may the military necessity argument justify destruction during occupation. However, while article 53 IVGC speaks of “military operations”, article 54 sets a stricter test for military necessity: permitted destruction is limited to scenarios in which cisterns are used as sustenance solely by the members of the adversary’s armed forces, or at least in direct support of military actions.

Therefore, cisterns that do not amount to legitimate military objectives should not be destroyed. This is the case in destruction due to lack of building permits. No military justifications are argued by the ICA’s planning institutions, thus rendering the destructions unlawful. According to UNOCHA the majority of these demolitions take place in areas where communities have been living for extended periods, which have been at some point classified as closed military areas or are close to settlements seeking expansion.

However, even if military necessity is implicitly invoked in the permit application process, such as in the cases of “closed military zones” or “firing zones”, only evidence that supports the use of those cisterns as legitimate military objectives may justify their destruction. Such evidence is not presented. Additionally, any legitimate military argument has to take into account the principle of proportionality between the added value of the destruction and the military advantage sought. Here again, article 54 sets a stricter test of proportionality. Even if cisterns directly support the enemy’s military actions, their destruction is prohibited if it expected to “leave the population with such inadequate food or water as to cause its starvation or force its movement.”

As a result of the demolition of the 44 cisterns, 13,602 people have been affected. In addition, 127 people have been displaced, including 104 children. Those affected are usually among the most vulnerable in the West Bank (as confirmed by poverty and malnutrition rates) and include refugees, who have suffered multiple displacements and dispossession in the past.

Therefore, destruction of cisterns is not only reasonably expected to force Palestinian movement, but such movement has been actually documented. The destruction of cisterns due to lack of building permits in Area C is absolutely prohibited under IHL as it resulted in forcing population movement. Forced transfer is prohibited under article 49(1) IVGC and may amount to a grave breach under article 147 IVGC. It should be noted that article 54 conditions its application during hostilities with proof of intent: “for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse party”. That may mean that in cases that such intent cannot be proved, as in cases of collateral damage, destructions may not be prohibited. However, according to the ICRC “[m]ost military manuals, however, do not indicate such a requirement and prohibit attacks against these objects as such”, therefore precluding the need to prove any specific intent to define the destruction as unlawful.

In any case, adapting the requirement to situations of occupation, it is clear that administrative destruction based on direct orders to demolish cisterns clearly intends to deny the civilians from using and relying on them as water resources.

Violation of the obligation to protect the civilian population and ensure its basic needs
Along the lines above, regardless of the illegality of the destruction as such, its outcome – the denial of humanitarian needs – violates customary law obligations of the occupier towards the protected population. Denying civilians access to water resources is a violation of the occupying power’s obligation to administer the occupied territory for the welfare of the population in accordance with their needs and customs, based on article 43 of the Hague Regulations. It is also a requirement of the occupier, to the fullest extent of the means available to it, to ensure that food, as well as means of shelter and other essential supplies that are dependent on access to water, are provided. Article 27 IVGC provides that “[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights (…)”.

Indeed, this obligation is subject to security measures but, according to the ICRC, “what is essential is that the measures of constraint they adopt should not affect the fundamental rights of the persons concerned.”

Those rights, to which Israel has committed as a signatory to human rights conventions, apply also during occupation. Within these conventions, the right to an adequate standard of living includes the right to food and water. In addition, access to water is included within both the rights to health and the right to life.

Impeding aid in Area C.
The ICA’s planning institutions do not take into account the humanitarian objective behind the construction of cisterns, and, similar to individual applications, humanitarian aid agencies and development organisations are facing difficulties in obtaining building permits for construction projects in Area C. These difficulties result in delayed projects and even project cancellation, as well as reduced impact and higher costs for the organisations.

The permit regime, which in fact replaces an adequate coordination mechanism for the delivery of aid between the ICA and aid organisations, amounts to a genuine obstruction of the delivery of aid in Area C. The right of the occupier to prescribe the technical arrangements for the construction of cisterns cannot justify the long delays in obtaining building permits, which practically result in the denial of the basic need for water. Those who are especially in need of water are vulnerable groups to which the occupying power owes special protection, such as children, women, sick and wounded, disabled and elderly.

Above all, the exercise of legal obligations in IHL and human rights law should
be carried out in good faith and in a manner that will not undermine the rights of protected persons in any way. Thus, beyond the illegality of the destruction practice as such, the failure of the existing coordination mechanism to allow rainwater harvesting violates Israel’s obligations, as an occupier of the West Bank, to agree on relief schemes, as well as to allow and facilitate their rapid and unimpeded delivery by all means at its disposal.