Water, water everywhere, nor any drop to drink…
Water For One People Only: Discriminatory Access and ‘Water-Apartheid’ in the OPT
An Al-Haq report by Elisabeth Koek,16 April 2013
For many years, the Palestinian population of the West Bank, including East Jerusalem, and the Gaza Strip, has suffered from a shortage of clean, safe water. However, despite alarming predictions of insufficient drinking water supplies by 2040, based on the expected population growth in the Occupied Palestinian Territory (OPT), Jordan and Israel, water is not and has not been scarce in the region. At present, the water sector in the OPT and Israel is characterised by highly asymmetrical overexploitation of damageable shared water resources, exhaustion of long-term storage, deterioration of water quality and increasing levels of demand driven by high population growth and accompanied by decreasing per capita supplies. However, the burden is disproportionately borne by the Palestinian population, who are impeded from exercising effective control over the development and management of the available water resources in the region. Measures taken by the Israeli authorities, including the relentless expansion of settlements, continue to deprive Palestinians of vital water resources necessary for a dignified standard of living. Palestinian communities are left fragmented and confined to shrinking areas. These areas resemble a land-locked archipelago of territory in which essential human rights, and more specifically the right to water, are continuously denied.
Executive Summary (pp.16-19):
Israeli per capita consumption of water for domestic use is four to five times higher than that of the Palestinian population of the Occupied Palestinian Territory (OPT). In the West Bank, the Israeli settler population, numbering more than 500,000, consumes approximately six times the amount of water used by the Palestinian population of almost 2.6 million; this discrepancy is even greater when water used for agricultural purposes is taken into account.
Contrary to popular belief, water is not, and has not been, scarce in the region, which contains three main sources of natural fresh water. As water does not follow territorial boundaries, the Jordan River, the Mountain Aquifer and the Coastal Aquifer are shared between Israel and Palestine.
The level of unrestricted access to water enjoyed by those residing in Israel and Israeli settlers demonstrates that resources are plentiful and that the lack of sufficient water for Palestinians is a direct result of Israel’s discriminatory policies in water management.
Israel’s Illegal Exercise of Sovereign Rights over Water Resources
At present, the water sector in the OPT and Israel is characterised by highly asymmetrical overexploitation of damageable shared water resources, exhaustion of long-term storage, deterioration of water quality and increasing levels of demand driven by high population growth, accompanied by decreasing per capita supplies. However, the burden is disproportionately borne by the Palestinian population, who are impeded from exercising effective control over the development and management of the available water resources in the region.
Since 1967, Israel has exerted considerable military and political efforts, including the establishment of settlements, to illegally exercise sovereign rights over Palestinian water resources. A series of military orders – still in force and applicable only to Palestinians – integrated the water system of the OPT into the Israeli system, while at the same time denying Palestinian control over this vital resource.
This integration was significantly advanced in 1982 by the transfer of ownership of Palestinian water infrastructure in the West Bank to Israel’s national water company ‘Mekorot,’ which has forced Palestinians to rely on the company to meet their annual water needs. The company supplies almost half the domestic water consumed by Palestinian communities in the West Bank, making it the largest single supplier in the West Bank. In addition to Israel’s exclusive control over water resources, ‘Mekorot’ directly extracts water from the Palestinian share of the water resources in order to supply copious amounts to Israeli settlements.
The conclusion of the Oslo Accords, contrary to Palestinians’ expectations, did not result in greater access to the water resources in the OPT, but merely formalised a discriminatory management regime that was largely already in place. In reality, the Oslo II water regime is a continuation and preservation of Israel’s exclusive control over the Mountain Aquifer and facilitates its illegal exercise of sovereign rights over the water resources in the OPT. In contrast, ‘Mekorot’ routinely reduces Palestinian supply – sometimes by as much as 50 per cent – during the summer months in order to meet consumption needs in the settlements.
Current Israeli Methods to Maintain Hegemony
In parallel, Israel actively prevents the construction and maintenance of water infrastructure in 59 per cent of the West Bank, earmarked Area C. This has primarily been achieved through the systematic denial of permits for any construction or rehabilitation of water infrastructure. Any water structure built without a permit from the Israeli authorities – permits that are virtually impossible to obtain – risks demolition. In contrast, Israeli settlers are not required to obtain a permit from the Israeli Civil Administration and, unlike Palestinian communities, all settlements in the OPT are connected to a water network.
The Israeli military authorities regularly target water collection systems for confiscation and destruction, including those provided by humanitarian organisations. They do so on the pretext that such systems were constructed without an Israeli permit. In the Gaza Strip, destruction of water infrastructure frequently occurs during Israeli military operations, such as air strikes and ground incursions.
Furthermore, due to the absence of any policy coordination between Israel and the Gaza Strip with regard to the Coastal Aquifer, both authorities are currently over-extracting. The overextraction and pollution of the Coastal Aquifer have resulted in a progressive deterioration of the water quality in the Gaza Strip. The groundwater levels in the aquifer have fallen below sea level and saline water and sewage have infiltrated the aquifer, rendering 90 to 95 per cent of the water it supplies unfit for human consumption.
Legal Analysis
As the Occupying Power sharing a considerable portion of the region’s water resources with the Palestinians, Israel‘s governance and use of transboundary water resources must be conducted not only in compliance with general principles of international law and customary international law, but also in accordance with the rules provided by international humanitarian law (IHL), international human rights law (IHRL) and international water law (IWL).
Under IHL, the Occupying Power does not acquire sovereign rights over the occupied territory and the natural resources therein. As such, Israel acts merely as the de facto administrator of the occupied territory. The administration of the territory must preserve the sovereign rights of the occupied population – thus protecting the occupied population and their property from exploitation and depletion by the Occupying Power. In particular, IHL imposes strict limitations on the Occupying Power’s use of property and natural resources available in the occupied territory, thereby preventing the Occupied Power from exploiting the wealth of the occupied territory to benefit its own economy.
Israel has extensively and unlawfully appropriated Palestinian water resources in the OPT for the sole benefit of those residing in Israel and Israeli colonies, while maintaining a practice of extensive destruction of Palestinian water infrastructure. These policies and practices are aimed at forcibly transferring Palestinian communities from their homes, thereby emptying the most fertile and water-rich areas of the West Bank of its Palestinian inhabitants, which is instrumental to Israel’s unlawful transfer of its own civilian population into occupied territory.
As such, Israel is in violation of Articles 43, 46, 53 and 55 of the Hague Regulations and Articles 49 and 53 of the Fourth Geneva Convention. As a High Contracting Party to the Geneva Conventions, Israel has an obligation to put an end to all violations of IHL and investigate and prosecute those responsible for violations of the Conventions.
Through its policies, Israel illegally exercises sovereign rights over Palestinian natural sources. This demonstrates the existence of a governmental policy aimed at dispossessing the Palestinian population of their natural wealth. This orchestrated dispossession constitutes an infringement on the right of the Palestinian people to self-determination and to permanent sovereignty over their natural resources.
In addition, Israel consistently fails to meet its obligations under IHRL by refusing to respect, protect and fulfil the right of the Palestinian people to water, which is derived from existing human rights treaties, to which Israel is a State party. Israel excessively and relentlessly extracts far beyond its equitable and reasonable share of the transboundary waters, thereby causing significant harm through increased pollution and salination of the watercourses. Israel also refuses to cooperate in the maintenance, protection and preservation of transboundary watercourses and water installations. Thus, Israel is in violation of its obligations vis-à-vis Palestine as a watercourse State under the customary principles of international water law.
In order to meet its obligations under these international legal frameworks, the Israeli authorities must immediately cease all internationally wrongful acts, offer appropriate guarantees of non-repetition and make full reparations for the injury caused, including material or moral damages.
Colonialism and ‘Water-Apartheid’
Israel’s policies and practices in the OPT have created a situation of occupation in which natural resources are unlawfully exploited and appropriated. Israel’s water policies represent only one element of an irreversible structural process that can only be described as colonial. Israel’s intention to permanently change the status of the occupied territory, de facto exercising sovereignty, reveals itself through the establishment and expansion of settlements in the West Bank (currently over 200) and by the creation of a network of roads and flourishing agricultural enterprises for their benefit. The presence of settlements aims to permanently deny the Palestinian population the exercise of their right to self-determination by fragmenting the OPT and preventing the Palestinian people from exercising sovereignty over natural resources, in particular land and water.
A troika of key legislative measures and institutionalised policies and practices have enabled Israel to illegally exercise sovereign rights over Palestinian water resources, with the ultimate goal of satisfying its own interests. As such, these policies and practices have laid the foundations and underpin the three principal pillars of Israel’s ‘water-apartheid.’
The first pillar requires the identification of two distinct racial groups; the Palestinians and ‘Jewish-Israelis,’ meaning ‘Israelis with Jewish identity.’ The second pillar is comprised of policies and practises that facilitate the demarcation along racial lines of the two groups. This has allowed Israel to maintain a system intended to segregate the population into different geographical areas. Jewish-Israelis are privileged, as they have an uninterrupted and abundant supply of water, while Palestinians are denied their basic right to water and full development as a group. The third pillar upon which Israel’s ‘water-apartheid’ rests is its use of the pretext of ‘security’ to justify the commission of inhuman acts against the Palestinians as a group. Israel’s policies and practices in relation to water do not occur in a vacuum, but are integrated in an institutionalised system of Jewish-Israeli domination and oppression of the Palestinians as a group – thus amounting to a system of ‘water-apartheid.’
These violations amount to breaches of peremptory norms of international law, including the right to self-determination, the prohibition of extensive destruction and appropriation of property, as well as the international legal prohibitions of colonialism and apartheid.