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Olga Bimbashi

Israel’s Unlawful Exploitation of Water in the Occupied Palestinian Territory

Palestine is rich with natural resources, ranging from fertile land and plentiful water to stone quarries and mineral-rich shores of the Dead Sea and the Mediterranean coast. However, Israel’s 51 years military occupation and natural resource exploitation continue to hamper social and economic development in the Occupied Palestinian Territory (OPT).

This briefing paper highlights Israel’s violation of international law-including international humanitarian law, international human rights law, and international criminal law- in relation to the protection of natural resources mainly: water.

Whereby, Israel’s illegal occupation and settlement regime continue to perpetuate the exploitation of Palestinian natural resources and threaten the right of the Palestinian people to self-determination- to freely pursue economic, social, cultural development, and hinders on the enjoyment of human rights of the Palestinian people, particularly the right to health, adequate standards of living, food, water, and property.

Water

Inaccessibility, illegal exploitation or misuse of territorial natural resources can be detrimental to national development and can violate fundamental social and economic rights including the right to self determination. Thus, the Occupied Palestinian Territories OPT (West Bank and Gaza Strip) suffer from structural scarcity of water, amongst other forms of scarcity, given the inequality in the distribution of the shared resources and the discrimination against the Palestinians in use of water resources is obvious, where the majority of water resources are concentrated in the hands of Israel, while the Palestinian population endures significant water deficits. The construction of the separation Wall in the West Bank, has significantly drew apart people from each other, people from their land, and people from their water sources, jeopardizing their entire livelihoods.

Moreover, Water shortages and poor sanitation services in the OPT affect all sectors of the Palestinian population and especially the poorest and most vulnerable communities, those living in isolated rural areas and in overcrowded refugee camps. Consequently, water shortages and amid deepening poverty have lead many Palestinians to resort to drilling unlicensed wells, while others have connected to the water network illegally, and many have stopped paying their water bills; these practices have further compounded the problem.

 

According to the records of 2014, the magnitude of renewable groundwater resources in the OPT varied from 640-750 Mcm/year (590-690 Mcm/year in the West Bank and 50-60 Mcm/year in Gaza). The Jordan River, which accounts for the bulk of the available surface water in the OPT, is not yet accessible to Palestinians. Furthermore, Israel has been continuously depleting the surface water resources since the mid ‘50s, especially the headwaters of the Jordan River. They diverted water from Lake Tiberias in the north to the Negev desert in the south, through the so-called National Water Carrier. This diversion has caused severe water problems and massive reduction of the Jordan River’s flow.

 

Israel has managed to violate Palestinians´ water rights systematically. After the 1967 war, followed by the annexation of the Golan Heights and the occupation of the West Bank, all major Arab water resources, including the Jordan River basin as well as those in the West Bank and Gaza Strip fell under Israel’s control.[1]

 

There are different forms and consequences to Israel’s violations of the Palestinians´ water rights; such as:

Settlers & Settlements

The construction of new Israeli colonies and the expansion of existing ones is further reducing the quantity of water that should be allocated to Palestinians, whereby each settler uses 4 times more water than a Palestinian.[2] Furthermore, Israeli settlers in the West Bank are confiscating local water sources (especially natural springs) that Palestinians have used for ages, blocking them from using them. This has not only affected the overall well-being of the Palestinian people, it also makes it more difficult to access water resources for household use, irrigation and other economic activities.[3]

 

A survey carried out by OCHA identified a total of 56 water springs in the vicinity of Israeli settlements throughout the West Bank, the large majority of which are located in Area C on land parcels recorded by the Israeli Civil Administration as privately owned by Palestinians. Thirty of these springs were found to be under full settler control, with no Palestinian access to the area. Israeli settlers, through acts of intimidation, threats and violence, have deterred Palestinians from accessing at least 22 of those springs. Hence, the remaining eight springs are under full settlers’ control, and Palestinians have been prevented to access the springs by physical obstacles, including the fencing of the spring area, its de facto annexation to the settlement (four cases), the isolation of the area from the rest of the West Bank by the Wall and its subsequent designation as a closed military zone (four cases).[4]

 

The Wall

 

The consequences of the separation Wall on the ground are catastrophic. The western section of the Wall cuts off and confiscates more than 1000 km2 from the West Bank’s most fertile land and water-richest area. It seizes more than 28 groundwater wells that produce 4.5 Mcm per year and supply irrigation water for hundreds of dunums in the agricultural areas in Tulkarem and Qalqilia districts.[5]

 

Restrictions on Water and Sanitation Sector in Area C

 

All water and sanitation projects in Palestine must be approved by the Joint Water Committee (JWC)[6], and as a result the approval process lengthy and complicated. While water and sanitation projects and infrastructure within Area C requires an official permit from the JWC, development in Area C also requires a permit from the Israeli Civil Administration in Bet El. This is a long, bureaucratic procedure and often results in permission being denied, even if the project is approved by the JWC. Projects executed without prior approval are demolished by the Israeli military. Between 2011 – 2013 Israel rejected 97% of applications for building permits in Area C, including applications for developing related water and sanitation projects.[7]

 

The Fourth Geneva Convention prevents the destruction of such facilities, which are considered as protected civilian objects under the laws of war. However, the Israeli military authorities and Israeli settlers target the water structures for destruction, in violation to Israel’s obligation to respect the right to water and of the Israeli-Palestinian Joint Water Committee’ declaration (Joint Declaration for Keeping the Water Infrastructure out of the Cycle of Violence), signed in 2001.[8] Some of these structures were demolished under the pretext that they were constructed without obtaining the relevant Israeli permit; but most were in fact demolished without any reason.

 

Agricultural Sector

 

The shrinkage in the quantity of water over the past five decades compared to the growing water needs, has affected the agricultural sector as a whole, leading to a general decline in irrigated land. Moreover, in some places, Palestinian farmers have been forced to purchase water at high prices from the water sources controlled by the Israeli Water Company. This has led to increased production costs for agricultural crops, thus affecting the ability of Palestinian farmers to compete with the heavily subsidized Israeli agriculture, leading to substantial economic losses at farmer and national levels.[9]

 

Access to piped water

 

While all Israeli settlements in the West Bank are connected to piped water, an estimated 220 communities in the Occupied Palestinian Territories are not serviced through the water network - that is, approximately 15% of the population. Approximately, 24.3% and 27.6% of the households in the West Bank use water tankers and domestic wells respectively, to complement water supplied by networks.[10] The reason why so many communities are not connected to the water supply network is that Israel have always been denied their connection. This injustice and inequity of access to water supply has always been a source of tension, especially when Palestinian villagers see how the pipe leading to an Israeli colony passes through their land without supplying their village with water.[11]

 

During summertime in the West Bank, water supply is sometimes reduced by up to 70% in certain places. Some cities, towns and villages may have water only once a week or even once a month. Moreover, the water losses through leaking pipes and illegal connections are high; in 2013 the overall loss was estimated to vary between 14% in Ramallah and Al Bireh Governorate to 49% in Jerusalem governorate.[12]

 

In 2015, 65.4% of the households in Gaza depended on water tankers and 24.9% depended on bottled water. During the last Israeli assault against Gaza in the summer of 2014, most of the population did not receive water through the water network for weeks. The network distribution system in Gaza Strip is characterized with a low efficiency, as the water losses were estimated at range of 59% in the year 2014.[13]

 

Reductions in available water quantities and pollution caused by Israeli colonial settlements to the land and local water sources and the aggression of Israeli settlers on local sources have all contributed further to the deterioration of social and economic conditions of the Palestinian communities.

 

Wastewater Infrastructure and Treatment

 

Serious public health risks arise from the spread of diseases due to contamination of food, water, air, and soil. The absence of sufficient wastewater infrastructure and limited number of wastewater treatment plants in the West Bank to deal with the generated wastewater, have converted most Valleys in those areas, into wastewater streams. This has been causing hazardous results in the forms of polluting the surrounding environment, leaching contaminants into groundwater, and increasing the health risks of waterborne diseases. Among the major wastewater streams in the West Bank are: Wadi Al Zomar, (Nablus), Wadi Suriq (Ramallah), Wadi Al Samen (Hebron) and Wadi Al-Nar (Bethlehem).[14]

 

The cost associated with the Water treatment Plants is charged to the Palestinian Water Authority (PWA) and deducted annually by Israel from Palestinian tax revenues. According to the Water Sector Regulatory Council, Israel deducted approximately over 82 million NIS from the Palestinian tax revenues in 2015 for the treatment of the Wastewater produced in the West Bank. Israel's unilateral decision to build a wastewater treatment plant in the Palestinian Lands of Al-Nabi Musa (to treat Wadi Al-Nar wastewater stream), without the joint water committee approval, is a clear example of Israel violation whereby the construction of this wastewater treatment plant by Israel, can result in making Palestinians pay to Israel fees as wastewater treatment concept, when at the same time treated effluent is expected to serve Israeli agriculture activities in the area.[15] This will have a negative effect on the development of the Palestinian agriculture sector in the Dead Sea area, and thus limits the availability of new job opportunities for Palestinians.

 

In Gaza, the existing wastewater treatment plants are overloaded and are highly inefficient and hardly functioning. The treatment inefficiencies had been attributed to lack of proper operation and maintenance; unreliable electric supply, and difficulties in the availability of spare parts as result of the Israeli blockade on the Gaza Strip.[16]

 

Israel has not only failed to support Palestinian attempts to advance solutions for wastewater treatment, it has delayed them. As a result, most donors are discouraged from investing in the sanitation sector within Palestine due to the bureaucratic constraints of the JWC system.[17]

 

Palestinians’ right to access their full Exclusive Economic Zone (EEZ) was violated by the 1994 Gaza-Jericho agreement signed by Israel and the PLO, which outlines a Maritime Activity Zone extending only 37 km from Gaza’s shore, and the 2005 Bertini Commitment, which supports a fishing zone of 22.2 km from shore. Israel, however, has failed to respect even those fishing zones demarcated by these agreements, enforcing fishing boundaries as close as 5.5 km from shore that it regularly changes at will.  Moreover, during periods of conflict between Israel and Gaza all fishing is prohibited, as Israel often adjusts the fishing range in a punitive manner, as a form of collective punishment against the entire population of Gaza, which is in contravention to Article 33 of the Fourth Geneva Convention. The imposed limits on fishing zones are enforced through almost daily illegal attacks on Gaza’s fishermen by the Israeli navy, including attacks on fishermen who are not in violation of the demarcated boundary, with 113 fishermen arrests and 48 boat confiscations made in 2016 alone. Some fishermen are able to recover their boats after paying a heavy 500 shekel fee (roughly $135), but the majority are denied the chance to do so.

 

Israel’s restrictions are also derived by its desire to protect its own gas fields, one of which is 24 km from the Gaza shore.

 

 

 

 

 

Relevant Legal provisions

 

Environmental degradation also constitutes a crime against humanity in accordance with Article 7 of the Statute. It professes that a widespread or systematic attack against the civilian population, includes pollution of drinking water or destruction of food sources or other natural resources, is a crime against humanity. In addition, persecution or the international deprivation of fundamental rights because of the identity of the group is a crime against humanity, [18] of which Israel, the Occupying Power, continues to commit against the Palestinian people. 

 

Military Order 92 (1967) granted complete authority over all water related issues in the OPT to the Israeli army and the Order Concerning the Investment of Natural Resources (West Bank) (No. 389) transferred the sovereign rights of the West Bank’s natural resources to a ‘competent authority’ appointed by the military commander.

 

The Oslo Accords include numerous provisions regarding the use of and access to natural resources, as well as the provision of services connected to these natural resources. Annex III, Protocol on Israeli-Palestinian Cooperation in Economic and Development Programs, and Annex IV, Protocol on Israeli-Palestinian Cooperation Concerning Regional Development Programs, of the 1993 Oslo Accords addresses cooperation in the fields of water, electricity, energy, and other resources.

 

Pertaining to the OPT, United Nations General Assembly Resolution 72/240 expresses its concern about the exploitation by Israel, the Occupying Power, of the natural resources of the OPT, including East Jerusalem, and other Arab territories occupied by Israel since 1967. It also clarifies its concern about the extensive destruction of agricultural land and orchards in the OPT, including the uprooting of a vast number of fruit-bearing trees and the destruction of farms and greenhouses.  It stresses the grave environmental and economic impact of Israel’s exploitation of natural resources on the Palestinian people and gives consideration for the 2014 war on the Gaza Strip, which, “inter alia, has polluted the environment and which negatively affects the functioning of water and sanitation systems and the water supply and other natural resources of the Palestinian people.”[19]

 

The State of Palestine, in its latest referral to the International Criminal Court (ICC), specifically identifies crimes “involving the unlawful appropriation and destruction of private and public properties, including land, houses and buildings, as well as natural resources” of crimes as being core to the Court’s investigation of Israel’s crimes in the OPT.  Therefore, the ICC has jurisdiction over crimes committed in the OPT since June 2014 following the signing of the Rome Statute by the Palestinian Authority in January 2015.[20]

 

According to the International Court of Justice (ICJ) on the request for the Indication of Provisional Measures, the Occupying Power cannot however, exploit the natural resources, including water, in an occupied territory to increase its own material wealth, or for the benefit of the colonizers residing in the territory. These acts would amount to the crime of pillage – extensive exploitation – which is prohibited under international law.[21]

 

Access to services is essential to actualize the fundamental human rights and a derogation of the provision of any such services presents a de facto risk of violating basic human rights. The Committee on Economic, Social and Cultural Rights, which monitors the compliance of state parties to the ICESCR, considers that the availability of services and infrastructure are among the factors necessary for the provision of adequate housing which is broadly interpreted as the right to live somewhere in security, peace and dignity. Whereas, any form of discrimination in the enjoyment of these rights as well as other fundamental freedoms encompassed in the ICESCR and the ICCPR is prohibited.

 

International Humanitarian Law (IHL) - the applicable legal framework in situations of occupation - places specific binding obligations on Israel with respect to the administration and development of natural resources and the provision of services in the OPT. Specifically, the 1949 Fourth Geneva Convention (GCIV), the Hague Regulations of 1907, and customary international law are relevant. Additionally, the jurisprudence of the ICJ has concluded that the applicability of IHL in a territory under occupation does not cease the application of human rights law instruments. Therefore, international human rights law (IHRL) instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are also applicable. Both aforementioned legal instruments are binding on Israel; accordingly, its administration of the OPT must adhere to both IHL and IHRL standards.

 

Article 47 of the Fourth Geneva Convention reaffirms that: “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever,

of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power.”

 

 

 

 

Remedies

 

Whereby the “right to a healthy environment” actually exists at the regional level, courts and tribunals have recognized this right, such as in the cases decided by the African Commission on Human and Peoples Rights based on Article 24 of the African Charter, which states that all peoples have the right to a general satisfactory environment. Moreover, both human rights law and environmental law recognize collective rights implicated by environmental degradation, such as rights held by indigenous peoples. Hence, the Palestinian people seek the following remedies:

 

  1. Enforcement of environmental laws and water law, and strengthening the legal instruments of enforcement, particularly the usage of civil penalties and criminal proceedings.
  2. The limited capacity of the region’s water resources are of paramount importance to all Palestinians. Therefore, any solution to the water conflict will have to consider equitable allocation and joint management between all the riparian of all trans-boundary water resources.
  3. The encroachment by Israeli settlers on Palestinian water resources shall stop.
  4. Improving the sewage collection infrastructure is a crucial component of the wastewater sector and a prerequisite for an integrated system that includes treatment and reuse.
  5. For the rehabilitation of the water and sanitation infrastructure in Gaza, immediate humanitarian interventions are needed to repair the damaged water supply and wastewater and desalination facilities, provide potable water for domestic use and sanitary installations for displaced population, increasing the coverage of sewerage network, and initiating the reuse of treated wastewater for agriculture, and provide fuel, generators and equipment to operate facilities.
  6. The implementation of the PWA proposed water tariff policy (PNA, 2013) which has been endorsed by the Palestinian Council of Ministers.

 

Therefore, water sources must be protected and pollution sources eliminated, especially

those caused by the Israeli colonies.

 

[1] Rabi, Ayman, Water injustice in Palestine: a limiting factor for social and economic development, March 2014, Page 4, Available at: https://www.foei.org/wp-content/uploads/2014/08/Water-injustice-in-Palestine.pdf

[2] https://siteresources.worldbank.org/INTWESTBANKGAZA/Resources/WaterRestrictionsReport18Apr2009.pdf

[3] Rabi, Ayman, Water injustice in Palestine: a limiting factor for social and economic development, March 2014, Page 5, Available at: https://www.foei.org/wp-content/uploads/2014/08/Water-injustice-in-Palestine.pdf

[4] Publications of the Applied Research Institute – Jerusalem (ARIJ), STATUS OF THE ENVIRONMENT IN THE STATE OF PALESTINE, December 2015, page 77. Available at: https://www.arij.org/files/arijadmin/2016/SOER_2015_final.pdf

[5] Ibid, Page 79.

[6] An Israeli-Palestinian Joint Water Committee (JWC) was formed to implement the Water Supply and Sewerage Issues in the 1995 Interim Agreement (hereinafter the "Water Agreement".

[7] Publications of the Applied Research Institute – Jerusalem (ARIJ), STATUS OF THE ENVIRONMENT IN THE STATE OF PALESTINE, December 2015, page 75. Available at: https://www.arij.org/files/arijadmin/2016/SOER_2015_final.pdf

[8] https://www.internationalwaterlaw.org/documents/regionaldocs/israel-palest-jwc1.html

[9] Publications of the Applied Research Institute – Jerusalem (ARIJ), STATUS OF THE ENVIRONMENT IN THE STATE OF PALESTINE, December 2015, page 78. Available at: https://www.arij.org/files/arijadmin/2016/SOER_2015_final.pdf

[10] Ibid, page 46.

[11] Ibid.

[12] Publications of the Applied Research Institute – Jerusalem (ARIJ), STATUS OF THE ENVIRONMENT IN THE STATE OF PALESTINE, December 2015, page 46. Available at: https://www.arij.org/files/arijadmin/2016/SOER_2015_final.pdf

[13] Ibid, page 47.

[14] Ibid, page 66.

[15] Ibid, page 69.

[16] Ibid, page 71.

[17] Ibid, page 79.

[18] Article 6, Rome Statute.

[19] UNGA 72/240 (2017).

[20] Badil Resource Center, Forced Population Transfer: The Case of Palestine & Denial of Access to Natural Resources and Services, Working Paper No. 20, September 2017. Available at: http://www.badil.org/phocadownloadpap/badil-new/publications/research/working-papers/wp20-DANRS.pdf

[21] Ibid.

Olga Bimbashi -Diplomat and Junior legal consultant 

Ministry of Foreign Affairs and Expatriates

State of Palestine