Israel’s occupation is dispossessing Palestinians of their land and resources
Israel’s occupation of Palestinian territory, currently in its 50th year, includes its systematic control and exploitation of Palestinian natural resources, preventing Palestinians from fully benefiting from their natural wealth. This article examines how, in the case of water, Israel has deliberately denied Palestinians control over and access to their water resources, in clear violation of its obligations under international law, which require Israel as occupying power to protect the occupied Palestinian population and territory. The author argues that through the imposition of discriminatory policies and practices, Israel has created a comprehensive system of control over the water resource, which prohibits Palestinians from exercising sovereign rights over their water resources and forces the dependence of Palestinians on Israel for much of their water needs. Accordingly, Palestinians suffer from a lack of sufficient access to their most basic need; and a severe imbalance of water usage exists favoring Israelis, both those residing in illegal settlements in the Occupied Palestinian Territory and in Israel. The article finishes by examining what role third party states, companies and civil society should play in resisting the exploitation of water by Israel and the national water carrier, Mekorot.
Israel’s occupation of Palestinian territory, currently in its 50th year, includes its systematic control and exploitation of Palestinian natural resources, ranging from water to stone to Dead Sea minerals, preventing Palestinians from fully benefiting from their natural wealth. In the case of water, Israel has deliberately denied Palestinians control over and access to their water resources, forcing the dependence of Palestinians on Israel for much of their water needs. As a result, Palestinians suffer from a lack of sufficient access to their most basic need; and a severe imbalance of water usage exists favouring Israelis, both those residing in illegal settlements11. This includes residential communities, industrial zones, and agricultural areas illegally established in the OPT for the benefit of Israeli citizens, and integrally, the activities that help to sustain, promote, and expand the settlements. Settlements are illegal under international law as recognised by the United Nations and by the International Court of Justice. See United Nations Security Council Resolution 2334, UN Doc. S/RES/2334, 23 December 2016, accessed May 22, 2017, http://www.un.org/webcast/pdfs/SRES2334-2016.pdf; see also “Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” International Court of Justice Report, paragraph 120, 2004, accessed May 22, 2017, http://www.icj-cij.org/docket/files/131/1671.pdf. in the Occupied Palestinian Territory (OPT) and in Israel.
During the summer of 2016 – like many summers before – thousands of Palestinians in the OPT were deprived of running water as the Israeli national water carrier, Mekorot, restricted the water supply to areas in the northern part of the occupied West Bank.22. See “Summer 2016 – Israel Cut Back on the Already Inadequate Water Supply to Palestinians,” B’Tselem - The Israeli Center for Human Rights in the Occupied Territory, September 27, 2016, accessed May 22, 2017, http://www.btselem.org/water/201609_israel_cut_back_supply. Lack of access to water not only places a severe strain on everyday life, making the most ordinary activities such as cooking and bathing very difficult, it also has crippling effects on education, healthcare, and Palestinian economic activity.
In this article, I will discuss the various policies and practices that Israel has employed to unlawfully exert and maintain control over and appropriate Palestinian water resources; the impact on Palestinian communities across the OPT, including the West Bank, East Jerusalem, and the Gaza Strip, all of which are occupied, but which face different realities; the relevant international law framework; and a brief discussion of the problematic partnerships between Latin American companies and Mekorot.
Israel has long perpetuated the myth of water scarcity in the region, heralding itself as the nation that has “made the desert bloom.” In reality, the OPT is rich in water resources. There are three main fresh water sources in the area: the Jordan River, running along the eastern border of the West Bank; the Mountain Aquifer, underlying the West Bank and Israel; and the Coastal Aquifer, underlying the Gaza Strip and Israel.33. These are considered transboundary water resources; aquifers and basins that are shared by two or more politically, economically, or culturally distinct communities. Shared resources are governed by international water law (IWL), as previously documented by Al-Haq and which will not be discussed in this article. Due to Israel’s near exclusive control over the shared resources and a lack of “equitable and reasonable utilisation”, Israel violates IWL. For more information, see Elisabeth Koek, “Water for One People Only: Discriminatory Access and ‘Water-Apartheid’ in the OPT.” Al-Haq, 2013, 83-85, accessed May 22, 2017, http://www.alhaq.org/publications/Water-For-One-People-Only.pdf. There is also ample rainfall in the area.44. The climate in the West Bank is considered semi-arid or sub-humid, with 60 per cent of the rainfall concentrated during a two-month period. Clemens Messerschmid, “Till the Last Drop: The Palestinian Water Crisis in the West Bank, Hydrogeology and Hydropolitics of a Regional Conflict.” Juragentium, 2005, accessed May 22, 2017, http://www.juragentium.org/topics/palestin/en/water.pdf. For example, records reflect that Jerusalem receives more rain on average per year than Berlin.55. Rain records from Jerusalem since 1846 show rainfall with an annual average of 599. 8 mm – more than Berlin which receives an annual average of 568 mm. See Clemens Messerschmid, “Hydro-Apartheid and Water Access in Israel-Palestine: Challenging the Myths of Cooperation and Scarcity,” in Decolonizing Palestinian Economy, eds. Mandy Turner, and Omar Shweiki (Basingstoke: Palgrave Macmillian, 2014), 61. Despite abundant sources of water, Palestinians suffer from a lack of sufficient water due to Israel’s control and appropriation of this vital resource via its occupation.
Israel maintains the myth of water scarcity in order to mask its near exclusive (and unlawful) control over Palestinian water resources in the OPT, and specifically in the West Bank. When Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip during the Six-Day war in 1967, it was widely believed that a central reason was to secure control over ground and surface water resources in the West Bank.66. Israel also occupied the Golan Heights and the Sinai Peninsula during the 1967 Six-Day War, – occupying lands that allowed it strategic control over the natural resources in the area. For a discussion of the role water played in the war see Lisdey Espinoza Pedraza and Markus Heinrich, “Water Scarcity: Cooperation or Conflict in the Middle East and North Africa,” Foreign Policy Journal, September 2, 2016, accessed May 22, 2017, https://www.foreignpolicyjournal.com/2016/09/02/water-scarcity-cooperation-or-conflict-in-the-middle-east-and-north-africa/. Israel’s direct control over water resources increased by approximately 50 per cent immediately following the war.77. Rose M. Mukhar, “The Jordan River Basin and the Mountain Aquifer: The Transboundary Freshwater Disputes between Israel, Jordan, Syria, Lebanon and the Palestinians,” Annual Survey of International and Comparative Law 12, no. 1 (2006): 59-85.
Since then, Israel has used a variety of discriminatory policies and practices – including military orders, an inequitable water-sharing agreement, and a discriminatory planning and permit regime – to create and maintain a comprehensive system of control over the water resources, ensuring that Palestinians are prohibited from exercising sovereign rights over their water resources.
Within the first 18 months of the occupation, Israel introduced legislative changes in the form of military orders, still in force today, which declared all water resources in the area state property,88. These military orders provided the Area Military Commander in the West Bank with full authority over the West Bank and declared that all property, whether moveable or immoveable, that belonged to the state was under the control of the Area Military Commander. “Proclamation Regarding Regulation of Administration and Law,” Jerusalem Media and Communication Center (JMCC), June 7, 1967; Jamil Rabah and Natasha Fairweather, “Israeli Military Orders in the Occupied Palestinian West Bank 1967-1992.” JMCC, 1995, vii. placed water resources and water-related issues under the control of the Israeli military commander,99. Military Order 92 “Order Concerning Jurisdiction over Water Regulations,” August 15, 1967. and required Palestinians to obtain permits from the Israeli military (later the Israeli Civil Administration)1010. The Israeli Civil Administration is the body responsible for the implementation of Israel’s government policies in the West Bank, and is part of the Coordinator for Government Activities in the Territories, which is a unit in the Israeli Ministry of Defense. in order to construct or rehabilitate water infrastructure1111. This includes, but is not limited to pipes, wells, pumps, and rain harvesting cisterns. without which any water structure would be subject to demolition or confiscation.1212. Military Order 158 “Order Concerning the Amendments to the Supervision Over Water Law,” November 19, 1967, an amendment to Water Law 31, 1953. Israel also imposed Military Order 291 which declared are prior water agreements invalid, giving military commander regulatory jurisdiction over water. Military Order 291 “Order Concerning Settlement of Disputes over Land and Water”, December 19, 1968, is an amendment to the Land and Water Regulation Law 40, 1952. Israel also began the process of building an extensive water network in the West Bank, which ultimately served to integrate the Palestinian water system in the OPT into the Israeli system, denying Palestinians control over the resource.1313. Yehezkiel Lein, “Disputed Waters, Israel’s Responsibility for the Water Shortage in the Occupied Territories,” B’Tselem, September 1998, 5, accessed May 22, 2017, http://www.btselem.org/publications/summaries/199809_disputed_waters. Israel also declared the banks of the Jordan River Basin closed military zones, cutting off Palestinian access to this water source.
In 1982, Israel increased the integration of water resources by transferring ownership of all West Bank supply systems to Mekorot, the Israeli national water carrier, of which the state of Israel owns 50 per cent. This created a situation where Palestinians are forced to purchase water from Mekorot to meet their annual needs. It is estimated that “Mekorot supplies almost half the water consumed by Palestinian communities.”1414. “Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem,” International Fact-Finding Mission on Settlements, February, 2013, UN Human Rights Council 22nd Session, paragraph 101. Mekorot also directly extracts water from Palestinian sources for the supply of illegal settlements in the OPT.1515. According to the World Bank, unofficial estimates reflect that Mekorot supplies 75 mcm of water to the settlements, of which 44 mcm are extracted from wells in the OPT. “Assessment of Restrictions on Palestinian Water Sector Development,” World Bank, 2009, 34, accessed May 22, 2017, http://siteresources.worldbank.org/INTWESTBANKGAZA/Resources/WaterRestrictionsReport18Apr2009.pdf.
Israel’s dominion over water resources was further consolidated in 1995 with the signing of the Oslo II Accords,1616. In 1993, the Palestine Liberation Organization and Israel signed the Declaration of Principles on Interim Self-Government Arrangements (Oslo I), which was designed to be an initial step in a multiphase process to transfer power from Israeli military authorities and the Israeli Civil Administration to the Palestinian Authority. In follow-up to Oslo I, the parties signed the Israel-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II) to further develop plans for transfer of power. The gradual transfer of power to the Palestinian Authority has never occurred. While designed to be interim measures due to expire after five years, the Oslo Accords continue today as a smokescreen that facilitates Israel’s prolonged occupation of Palestinian territory. which outlined an inequitable water-sharing agreement. The agreement, which only referenced the Mountain Aquifer,1717. Limited only to the portions of the Mountain Aquifer that underlies the West Bank, it does not include the portion that underlies Israel which is under unilateral Israel management. was based on “existing quantities of utilisation,”1818. “Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,” Office of the United Nations Special Coordinator for the Middle East Peace Process, 1995, Annex III Protocol Concerning Civil Affairs, Article 40, accessed May 22, 2017, http://www.unsco.org/Documents/Key/Israeli-Palestinian%20Interim%20Agreement%20on%20the%20West%20Bank%20and%20the%20Gaza%20Strip.pdf. and thus aimed to legitimise Israel’s unlawful use of Palestinian water resources. It allowed Israel’s continued utilisation of approximately 87 per cent of the resource, and only allocated 13 per cent to the Palestinians.1919. Ibid, Appendix I, Schedule 10. See also Jan Selby, “Dressing up Domination as ‘Cooperation’: the Case of Israel-Palestinian Water Relations,” 29 Review of International Studies 29, no. 1 (2003): 121, 131.
The Oslo II Accords also divided the West Bank into areas A, B and C,2020. Area A covers approximately 18 per cent of the West Bank, includes six major Palestinian cities, and is under full Palestinian civil and security control although Israel has not abdicated full authority over area A. Area B covers approximately 22 percent of the West Bank and is under full Palestinian civil control and joint Israeli-Palestinian control. Area C covers approximately 60 per cent of the West Bank and is under full Israeli civil and military control, including land registration, planning, building and designation of land use. It is also where the majority of Palestinian natural resources lie, including agricultural land, water sources and underground reservoirs. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 1995, Chapter 2, Article XI. and passed the responsibility of supplying water to Palestinian populations in areas A and B to the Palestinian Authority (PA).2121. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 1995, Annex III Protocol Concerning Civil Affairs. Israel restricts the PA’s ability to do so in several ways.
First, the Oslo II Accords created the Joint Water Committee (JWC), to oversee all water projects and systems in the West Bank.2222. This includes the drilling of new and alternative wells, the rehabilitation of existing wells (including routine maintenance, such as cleaning), laying of pipes, etc. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 1995, Annex III Protocol Concerning Civil Affairs, Article 40 (11, 12). The JWC was to function in a seemingly democratic way, as Palestinians and Israelis would sit on the committee in equal numbers, and all decisions would be made by consensus.2323. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 1995, Annex III Protocol Concerning Civil Affairs, Article 40 (13, 14). In reality, the JWC serves as one of the central ways that Israel maintains control over Palestinian water resources, as Israel has de facto veto power over all proposals.2424. “Assessment of Water Restrictions on Palestinian Water Sector Development,” World Bank, 2009, 34, accessed May 22, 2017, http://siteresources.worldbank.org/INTWESTBANKGAZA/Resources/WaterRestrictionsReport18Apr2009.pdf. A study showed that from 1995-2008, Palestinians approved nearly all Israeli water proposals, while Israelis only approved half of the Palestinian proposals.2525. Jan Selby, “Cooperation, Domination, and Colonisation: The Israel-Palestinian Joint Water Committee,” Water Alternatives 6, no. 1 (2013): 11. In addition, Israeli approval of large Palestinian proposals is conditioned upon Palestinian approval of Israeli proposals for the benefit of the settlements, a situation described as “blackmail” by Palestinians.2626. “According to the PWA, ‘more recently, Israel has begun conditioning JWC approval for urgently needed Palestinian water projects on prior Palestinian approval of water projects benefiting illegal Israeli settlements. This has since become consistent Israeli policy, in effect undermining the JWC by reducing it to a forum for blackmail.’” “Water for One People Only,” 2013, 42, citing Palestinian National Authority (PNA), PWA, ‘Palestinian Water Sector: Status Summary Report September 2012’ (In preparation for the Meeting of the Ad Hoc Liaison Committee (AHLC), 23rd September 2012, New York (September 2012), page 3).
Second, although the majority of “Palestinians reside in Areas A and B, the infrastructure upon which they depend lies inside or crosses into Area C,” which is under full Israeli control.2727. “Water for One People Only,” 2013, 36. This means that Palestinians must obtain permits from both the JWC and the Israeli Civil Administration (ICA) in order to build or rehabilitate any structures, including water infrastructure, in Area C. Such permits are rarely, if ever, granted. The United Nations Office for the Coordination of Humanitarian Affairs reported that the ICA approved only 1.5 per cent of Palestinian permit requests in Area C between 2010 and 2014.2828. “Under Threat. Demolition Orders in Area C of the West Bank,” United Nations Office for the Coordination of Humanitarian Affairs (UN OCHA), 2015, accessed May 22, 2017, https://www.ochaopt.org/documents/demolition_area_c_3-9-2015.pdf. Together, the JWC and Israel’s discriminatory permit regime, serve to further consolidate Israel’s control over water resources, “which makes integrated planning and management of water resources virtually impossible for the PA.”2929. “Assessment of Water Restrictions,” 2009, vii, 33-4.
To illustrate, Israel has denied Palestinians the ability to drill any wells in the western basin – the most productive basin – of the Mountain Aquifer.3030. “Hydro-Apartheid and Water Access in Israel-Palestine,” 2014, 64. See also “On the Occasion of Water Day 2017: Israeli Apartheid, The Case of Water,” State of Palestine, Negotiations Affairs Department, March 22, 2017, accessed May 22, 2017, http://www.nad.ps/en/publication-resources/faqs/occasion-international-water-day-2017-israeli-apartheid-case-water. Meanwhile, Israel has drilled 39 wells in the West Bank, 29 of which are located in the Jordan Valley that service Israel’s illegal residential and agricultural settlements.3131. “Status Report of Water Resources in the Occupied State of Palestine – 2012,” Palestinian Water Authority, October 2013, 9, accessed May 22, 2017, http://www.pwa.ps/userfiles/file/%D8%AA%D9%82%D8%A7%D8%B1%D9%8A%D8%B1/%D8%AA%D8%B5%D9%86%D9%8A%D9%81%201/WR%20STATUS%20Report-final%20draft%202014-04-01.pdf. See also Al-Haq, “Water for One People Only,” 2013, 46. Israel also has access to 500 wells in Israel that over extract water from the shared Mountain Aquifer, affecting the quality and quantity of water available to Palestinians.3232. “Status Report of Water Resources in the Occupied State of Palestine,” 2012, 9. Therefore, Israel not only controls the Mountain Aquifer, but it obstructs Palestinian use of the aquifer by diverting the flow of water into Israel.3333. “Water for One People Only,” 2013, 14.
Accordingly, Palestinian water use significantly decreased over the years, with Palestinians having access to only 11 per cent of the Mountain Aquifer, less than the allocations per the Oslo II Accords.3434. Palestinian water supply in the West Bank for the year of 2012 was 104 mcm, compared to 118 mcm during pre-Oslo years. See “Status Report of Water Resources in the Occupied State of Palestine,” 2012; see also “Water for One People Only,” 2013, 36. Ultimately, the Oslo II Accords water regime protects and perpetuates Israel’s control over water resources in the West Bank and enables its illegal exercise of sovereign rights over the same.
This combination of discriminatory Israeli policies and practices has resulted in severely inequitable allocation of water resources between Palestinians and Israelis; a situation that has been described as “Water-Apartheid”.3535. “Water for One People Only,” 2013, 88-93.
The violation of Palestinians’ right to water is clearly demonstrated in a comparison of consumption between Palestinians and Israelis. Israeli settlers in the West Bank, numbering over 500,000, consume approximately six times more water than 2.6 million Palestinians residing in the West Bank.3636. “Joint Parallel Report submitted by the Emergency Water, Sanitation and Hygiene group (EWASH) and Al-Haq to the Committee on Economic, Social and Cultural Rights on the occasion of the consideration of the Third Periodic Report of Israel,” Al-Haq and Emergency Water, Sanitation and Hygiene Group (EWASH), September 2011, paragraph 81, accessed May 22, 2017, http://www2.ohchr.org/english/bodies/cescr/docs/ngos/EWASH-Al-Haq_Israel_CESCR47.pdf. The World Health Organization recommends a minimum domestic consumption of 100 liters per capita per day (lpcd), but consumption by Palestinians in the West Bank is an average of 72 lpcd,3737. “Status Report of Water Resources in the Occupied State of Palestine,” 2012, 1. compared to 300 lpcd3838. “How Dispossession Happens. The Humanitarian Impact of the Takeover of Palestinian Water Springs by Israeli Settlers,” UN OCHA, March 2012, 14, accessed May 22, 2017, https://www.ochaopt.org/documents/ocha_opt_springs_report_march_2012_english.pdf. for Israelis in Israel and 369 lpcd for Israeli settlers residing in illegal Israeli settlements in the occupied West Bank. 3939. Jad Isaac and Jane Hilal, “Palestinian Landscape and the Israeli-Palestinian Conflict,” International Journal of Environmental Studies 68, no. 4 (2011): 422-23.
Palestinians residing in Area C are the most affected and vulnerable, as Israel has refused to connect 180 Palestinian communities in Area C to a water network, and 122, while connected, have an inconsistent supply or none at all.4040. “Water Tankering Projects Target the Most Vulnerable Communities in Area C,” UN OCHA, August 10, 2016, accessed May 22, 2017, https://www.ochaopt.org/content/water-tankering-projects-target-most-vulnerable-communities-area-c. This is due to Israel’s discriminatory planning and permit system, which makes it impossible for communities (and the PA) to develop and maintain water infrastructure without it being subjected to demolition or confiscation by the Israeli authorities. In 2016, Israeli authorities demolished or confiscated 103 water-related infrastructures, citing lack of permits.4141. “Demolition System Database,” UN OCHA, 2017, accessed March 29, 2017, http://data.ochaopt.org/demolition-sys.aspx.
Not only does Israel prohibit Palestinians from developing their water infrastructure, but it also prevents them from benefitting from the natural water resources that they have historically relied on, such as rain harvesting cisterns, which are also confiscated or demolished. As a result, average consumption in these communities is as little as 20 lpcd.4242. “Troubled Waters: Palestinians Denied Fair Access to Water. Israel: Occupied Palestinian Territories,” Amnesty International, 2009, 3, accessed May 22, 2017, https://www.amnestyusa.org/pdf/mde150272009en.pdf. Palestinians in these communities are forced to purchase tankered water to meet their needs. Due to high transportation and other costs, these families pay up to 400 percent more for water than those connected to a water network.4343. “Status of Environment in the State of Palestine,” The Applied Research Institute Jerusalem, December 2015, accessed May 22, 2017, https://www.arij.org/files/arijadmin/2016/Final_SOER_2015_opt_r.pdf. In addition, it is reported that Palestinians in the Jordan Valley spend half of their monthly income on water, while their neighboring Israeli settlers, who receive piped water on a regular basis, only spend 0.9 per cent of their monthly income on water. See “Hydro-Apartheid and Water Access in Israel-Palestine,” 2014, 67.
An affidavit collected by Al-Haq from a livestock breeder residing in al-Hadidiyya village in Toubas governorate illustrates the suffering caused by Israeli water policies:
I reside in the village of al-Hadidiyya, which is located in the northern Jordan Valley…there are no services in al-Hadidiyya and we receive our education and health services from neighbouring villages around Toubas. This is because al-Hadidiyya is located in Area C. We obtain our water resources from other villages, such as Ain al-Bayda, which is approximately 15 kilometers away; obtaining this water is very expensive, as we require water not just for personal use but also for our livestock, which is our only source of livelihood.
In October of 2016, a donor organisation sought to provide water to our village through plastic pipes that were connected to a town west of al-Hadidiyya, approximately 11,300 meters away — around the length of the water pipeline. The pipeline provided for 200 people and 1,000 sheep. Prior to this pipeline, we paid over 20 shekels per cubic meter of water, as we were forced to transport water in tankers and store it in containers. The water pipeline eased the suffering of the residents in the area, both personally and financially.
On 20 February 2017, at around 7am, I saw three bulldozers, a large number of Israeli soldiers, members of the Israeli Civil Administration, a number of military jeeps, and workers in civilian clothing in the area. I watched as they cut different sections of the pipeline. I also watched the bulldozers dig out the water transport lines that were underground, completely destroying the water pipeline. Israeli forces stayed in the area destroying and removing the pipeline until approximately 1pm.4444. Excerpts from Al-Haq Affidavit Number 141/2017, given by ‘Abd-al-Rahim Husein ‘Bsharat, a livestock breeder and resident of al-Hadidiyya village, Toubas governorate, West Bank, on February 21, 2017.
Palestinians residing in East Jerusalem, which was illegally annexed4545. When Israel occupied the West Bank, including East Jerusalem in 1967, it expanded the boundaries of Jerusalem and applied Israeli civil law (as opposed to military law), to the area, effectively annexing East Jerusalem to the state of Israel. The international community does not recognise Israel’s annexation of this territory and it is still deemed occupied. See “Resolution 478 (1980) of 20 August 1980,” UN Doc. S/RES/478, August 20, 1980, accessed May 22, 2017, https://unispal.un.org/DPA/DPR/unispal.nsf/0/DDE590C6FF232007852560DF0065FDDB. by Israel in 1967 and where Israeli civil law applies, also suffer from Israel’s control over water resources. As with other parts of the West Bank, Israel’s discriminatory planning and construction laws, which make it difficult for Palestinians to obtain permits to build, also affect access to water services.4646. Between the years 2005-2009, only some 55 per cent of requests for building permits in the Palestinian neighborhoods were approved, compared with some 85 per cent in the Israeli neighborhoods. “East Jerusalem: Facts and Figures,” Association for Civil Rights in Israel (ACRI), May 12, 2015, accessed May 22, 2017, http://www.acri.org.il/en/wp-content/uploads/2015/05/EJ-Facts-and-Figures-2015.pdf. Over half of Palestinian households are not connected to a licensed water network, as Israel refuses to connect them due to a lack of building permits.4747. “Report of the Independent International Fact-finding Mission,” February 2013, UN Human Rights Council, 22nd Session, paragraph 85. This forces many families to resort to unlicensed water networks, despite the fact that Palestinian residents of East Jerusalem are entitled to full services from the Jerusalem Municipality, as they pay taxes pursuant to their status as permanent residents.4848. Upon illegally annexing East Jerusalem, Israel issued permanent residency cards to those who were present in the new municipal boundaries of Jerusalem. Due to Israel’s discriminatory policies, their status as permanent residents is constantly under threat. For more information, see Natalie Tabar, “The Jerusalem Trap,” Al-Haq Organisation, 2010, accessed May 22, 2017, http://www.alhaq.org/publications/publications-index/item/the-jerusalem-trap.
Palestinian residents of East Jerusalem residing in areas east of the Annexation Wall4949. In 2002, Israel began the construction of the Annexation Wall, a combination of 8 to 9-meter-high concrete slabs, razor wire fencing, and surveillance equipment, approximately 80 per cent of which is located inside the occupied West Bank, appropriating Palestinian land, restricting freedom of movement, and fragmenting Palestinian communities, including cutting off East Jerusalem from the rest of the occupied West Bank. In 2004, the International Court of Justice issued an Advisory Opinion deeming the Annexation wall illegal. See “Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” ICJ Report, 2004. are especially vulnerable, as they receive limited municipal services after Israel excluded these areas from the boundaries of Jerusalem. The water infrastructure in these areas is in disrepair and does not meet the needs of the growing population in the area.5050. It was reported in 2014, that the water infrastructure in those areas is appropriate for a population of 15,000, while 80,000 people currently reside there. “ACRI Petitions High Court: Restore Water to East Jerusalem,” ACRI, March 25, 2014, accessed May 22, 2017, http://www.acri.org.il/en/2014/03/25/ej-water-petition/. Despite this, the Jerusalem Municipality has failed to rehabilitate or update the infrastructure over the years, causing regular disruptions in the water supply.5151. In 2014, four of these neighborhoods went without running water for nearly ten months. A court case was filed on their behalf requesting that the neighborhoods be connected to a licensed water network and the water supply restored. The Israeli High Court demanded that the state take action, but these areas remain unconnected to authorised networks. “ACRI Petitions High Court,” March 25, 2014; Mairav Zonszein, “Palestinians in East Jerusalem go 10 Months Without Water.” 972 Mag, January 18, 2015, accessed May 22, 2017, https://972mag.com/palestinians-in-east-jerusalem-go-10-months-with-no-water/101508/.
The depletion of the Coastal Aquifer and Israel’s oppressive closure of the Gaza Strip, now in its 10th year, are the central reasons that 1.8 million Palestinians suffer from an acute lack of access to water. The Coastal Aquifer, shared by Israel and the Gaza Strip, is the only source of freshwater available to the Palestinians in Gaza. Due to over-extraction and pollution,5252. This is due to the seepage of large quantities of sewage, mainly as a result of Israel’s refusal to allow entry of equipment necessary to rehabilitate sanitation infrastructure. “Gaza in 2020: A Liveable Place?,” UN Country Team in the Occupied Palestinian Territory, August 2012, 11, accessed May 22, 2017, https://www.unrwa.org/userfiles/file/publications/gaza/Gaza%20in%202020.pdf. the water quality has increasingly deteriorated, leaving 95 per cent of the Aquifer unfit for human consumption.5353. “Status of Environment in the State of Palestine 2015,” The Applied Research Institute Jerusalem, December 2015, 43, accessed May 22, 2017, https://www.arij.org/files/arijadmin/2016/Final_SOER_2015_opt_r.pdf. In addition, since the closure, Israel has prohibited the entry of materials necessary for Palestinians in Gaza to develop, maintain, and rehabilitate their water and sanitation infrastructure, much of which was deliberately targeted by Israel during the last three wars on the Gaza Strip.5454. For example, during the 2014 offensive against the Gaza Strip, 26 water wells, 46 kilometres of water supply networks, 16 water containers, 6 desalination units, 17 kilometres of sewage networks, 12 pumping stations, and 4 wastewater treatment plants were partially or totally destroyed. See “Divide and Conquer- A Legal Analysis of Israel’s 2014 offensive against the Gaza Strip,” Al-Haq, 2015, 67, accessed May 22, 2017, http://www.alhaq.org/publications/publications-index/item/divide-and-conquer?category_id=4.
As a result of these factors, 100,000 Gazans are not connected to a water network.5555. “Water and Sanitation in Palestine," EWASH, 2016, accessed May 22, 2017, http://www.ewash.org/sites/default/files/inoptfiles/160314%20-%20WATER%20AND%20SANITATION%20IN%20PALESTINE.pdf. Meanwhile, those who are connected do not receive water on a regular basis, and when supplied, it is highly saline and not fit for consumption. As a result, 95 per cent of the population in Gaza depends on desalinated water purchased from private vendors for their drinking needs.5656. Ibid. It is reported that Gazans spend nearly one third of their income on water, a steep amount given the poor economic situation in the Gaza Strip.5757. Ibid.
Lack of access to water plays a large role in the humanitarian crisis in the Gaza Strip, which the United Nations (UN) has estimated will be uninhabitable in the year 2020.5858. “Occupied Palestinian Territory Slides into Recession, Gaza Becoming Uninhabitable,” UN Conference on Trade and Development (UNCTAD), September 1, 2015, accessed May 22, 2017, http://unctad.org/en/pages/newsdetails.aspx?OriginalVersionID=1068. See also “Gaza in 2020: A Liveable Place?,” August 2012.
As demonstrated above, Israeli policies and practices of controlling Palestinian water resources and denying Palestinians the ability to fully utilise this vital resource have severe and detrimental effects on the protected Palestinian population, regardless of their status and where they reside. Such Israeli actions do no simply reflect a humanitarian crisis or a gross injustice they also violate international law. More specifically, Israel, as occupying power, is bound by both international humanitarian law (IHL) and international human rights law (IHRL).
Under IHL, Israel, as occupying power, has specific obligations toward the occupied Palestinian population and the occupied Palestinian territory.5959. Derived from Article 43 of the Regulations Annexed to the Hague Convention IV Respecting the Laws and Customs of Wars on Land of 1907 (Hague Regulations): “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely necessary, the laws in force in the country.” This includes a duty to administer the territory in the interest of the Palestinian population, but it does not grant sovereign rights over the territory and its natural resources.6060. Iain Scobbie, “Natural Resources and Belligerent Occupation: Perspectives from International Humanitarian and Human Rights Law,” in International Law and the Israeli-Palestinian Conflict: A Rights-based Approach to the Middle-East Conflict, eds. Susan M. Akram, Michael Dumper, Michael Lynk, and Iain Scobbie (London/New York: Routledge Publishers, 2010), 231. In addition, Israel must protect the Palestinian population and their property, including natural resources, from exploitation and depletion by the occupying power. Antonio Cassese, “Powers and Duties of an Occupant in Relation to Land and Natural Resources” in International Law and the Administration of the Occupied Territories, ed. Emma Playfair, (Oxford: Clarendon Press, 1992), 422. Customary IHL requires that any use of the natural resources by Israel is limited to military needs and should not exceed the rate of use prior to the occupation, as Israel is required to “safeguard the capital” of the occupied territory for the interest of the Palestinians.6161. “Hague Regulations,” Article 55, 1907. IHL also prohibits the destruction of public and private property in occupied territory for any reason other than military necessity.6262. “Fourth Geneva Convention Concerning the Protection of Civilian Persons in Time of War of 1949,” Fourth Geneva Convention, Article 53, August 12, 1949, accessed May 22, 2017, https://ihl-databases.icrc.org/ihl/385ec082b509e76c41256739003e636d/6756482d86146898c125641e004aa3c5.
Israel’s near exclusive control over Palestinian water resources and extensive appropriation of the water for the benefit of Israeli settlers in the OPT and Israelis residing in Israel, violates Israel’s duty to administer the occupied territory for the benefit of the Palestinian population, and exceeds the permissible use of the natural resources of the occupied territory. Israel’s confiscation and destruction of water infrastructure for “administrative” purposes (i.e. lack of a permit) also violates the obligation to administer the territory for the benefit of the Palestinians and proves that military necessity does not justify the confiscation or destruction of water infrastructure.
The right to water, although not a standalone right in IHRL, is essential for sustaining life, health, and human dignity.6363. “The Right to Water. Fact Sheet No. 35,” UN Office of the High Commissioner for Human Rights, August 2010, 1-3, accessed May 22, 2017, http://www.ohchr.org/Documents/Publications/FactSheet35en.pdf. Ensuring access to safe drinking water and sanitation is an implicit obligation in a number of rights including the right to life, the right to the highest attainable standard of health, and the rights to an adequate standard of living, to adequate housing, and to adequate food.6464. “General Comment No. 15: The Right to Water (Articles 11 and 12 of the Covenant),” UN Committee on Economic Social and Cultural Rights provides, UN Doc. E/C.12/2002/11, paragraph 3, January 20, 2003, accessed May 22, 2017, http://www.refworld.org/docid/4538838d11.html. See also “The right to water,” August 2010, 5.
The right to self-determination6565. The right to self-determination holds that all people have the right “freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the (UN) Charter.” “2625 (XXV). Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations,” United Nations General Assembly Resolution 2625, UN Doc. A/RES/2625, October 24, 1970, accessed May 22, 2017, http://www.un-documents.net/a25r2625.htm. is a fundamental right in IHRL and is necessary for the enjoyment of all other human rights.6666. “General Comment 12: The Right to Self-Determination of Peoples (Art. 1),” UN Human Rights Committee, UN Doc. CCPR/C/21/Rev.1, March 13, 1984, accessed May 22, 2017, http://www.refworld.org/docid/453883f822.html. As an erga omnes right,6767. “Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” ICJR Report, 2004, paragraph 88. it imposes positive obligations on all states toward all peoples who have been deprived of the possibility of exercising the right to self-determination.6868. “General Comment 12,” March 13, 1984, paragraph 6. Several UN General Assembly resolutions have stated that permanent sovereignty over natural resources is a fundamental component of self-determination.6969. “(XXVII) Permanent Sovereignty Over National Resources in the Occupied Arab Territories,” United Nations General Assembly, UN Doc. A/RES/3175, December 17, 1973, accessed May 22, 2017, https://unispal.un.org/DPA/DPR/unispal.nsf/0/8F9EF0C2108AB49C852568C6006704CC; “(XVII) Permanent Sovereignty Over Natural Resources,” United Nations General Assembly, UN Doc. A/RES/1803, December 14, 1962, accessed May 22, 2017, http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/1803%28XVII%29. Permanent sovereignty over natural resources prohibits Israel from illegally exploiting and disposing of Palestinian natural resources.7070. Ibid. Israel’s integration of the Palestinian water system into Israel’s and its near total control over Palestinian water resources, reflect Israel’s policies aimed at dispossessing Palestinians of their natural wealth, and therefore impedes the right of the Palestinian people to self-determination.
Israel is the primary duty bearer with respect to the OPT and the protected Palestinian population, but third states also have obligations under international law. The Draft Articles on Responsibility of States for Internationally Wrongful Acts, which reflects customary international law, affirms that in the case of breaches of peremptory norms of international law, such as the right to self-determination, all states are obligated not to recognise the situation as lawful, not to render aid or assistance in maintaining the illegal situation and to actively cooperate in order to bring it to an end.7171. The International Court of Justice recognised these obligations in its Advisory Opinion on the Wall in relation to the consequences arising from the construction of the Annexation Wall. See “Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” ICJR Report, 2004, paragraph 161; 163.
In addition, while upholding international human rights standards is traditionally the responsibility of states, businesses also have a responsibility to respect human rights in their operations. Over the last several years, the issue of business impacts on the enjoyment of human rights has received a great deal of attention. In 2011, the UN Human Rights Council endorsed the Guiding Principles on Business and Human Rights (UNGPs), a set of non-binding rules applicable to business enterprises requiring compliance with IHRL and IHL in situations of armed conflict. The UNGPs specify that business enterprises should “identify, prevent and mitigate…adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships”7272. “Guiding Principles on Business and Human Rights, Implementing the United Nations ‘Protect, Respect and Remedy’ Framework,” United Nations Human Rights Council, 2011, Guiding Principle 17, accessed May 22, 2017, http://www.ohchr.org/Documents/Issues/Business/A-HRC-17-31_AEV.pdf. (emphasis added). The UNGPs go on to state that if a business cannot use its leverage to put an end to the human rights abuses, it should consider ending the business relationship.7373. Id. Commentary to Principle 19.
Therefore, both states and businesses can and should play important roles in holding Israel accountable for its violations of international law, and ensuring that Palestinians are afforded their right to self-determination, and ultimately their dignity and freedom.
Where states have failed to act, civil society has taken it upon itself to advocate for the rights of the Palestinian population by reminding both states and businesses of their obligation to respect human rights.7474. The most successful example of this is the Boycott, Divestment and Sanctions (BDS) Movement. While Al-Haq supports individuals’ rights to engage in boycott actions, as boycott constitutes protected freedom of expression, opinion and association, it has not signed onto the BDS call of 2005. As a legal organisation, Al-Haq views the choice to boycott as a moral and ethical imperative that cannot be compelled legally. Instead, Al-Haq advocates for states to uphold their international obligations not to aid or assist in the continuation of an illegal situation and cooperate to bring it to an end by, for example, banning the entry of settlement products into their markets. For more information, see “Palestinian Human Rights Organizations Council Statement on BDS,” Al-Haq, February 9, 2016, accessed May 22, 2017, http://www.alhaq.org/advocacy/targets/palestinian-human-rights-organizations/1016-palestinian-human-rights-organizations-council-phroc-statement-on-bds-movement. See also, Shawan Jabarin, “BDS Calls for Boycott Should not Ignore States’ Responsibility to Uphold International Law.” Mondoweiss, August 27, 2015, accessed May 22, 2017, http://mondoweiss.net/2015/08/boycott-responsibility-international/; and “Feasting on the Occupation: Illegality of Settlement Produce and the Responsibility of EU Member States under International Law,” Al-Haq, 2013, accessed May 22, 2017, http://www.alhaq.org/advocacy/targets/european-union/662-new-al-haq-report-feasting-on-the-occupation-highlights-eu-obligation-to-ban-settlement-produce. In Latin America, for example, civil society has galvanised support for various campaigns relating to the protection of Palestinian rights. Over the last few years, particular attention has been paid to the issue of Palestinian water resources, as Israel has been promoting itself as a water innovator around the world, including across Latin America.7575. Mickey Chelsa, “Israel’s Water Industry - Answering the World’s Wake-Up Call.” Israel NewTech, November 4, 2015, accessed May 22, 2017, http://israelnewtech.com/2015/11/04/israels-water-industry-answering-the-worlds-wake-up-call/. In addition, the CEO of Mekorot described how “the water technology market amounts to at least $250 billion a year. We understand water; we’re the best in the world. So we made ourselves a strategic plan to make Mekorot a global company. The president of Guatemala came to us and sat with us for two and a half hours. He studied our water sector, and said, ’I want you to help us.’ They want us in Paraguay, Argentina, Mexico, Kazakhstan, Myanmar, and Africa. We advised Azerbaijan, Mexico, Ghana, and Argentina, but the really big money is in construction. We built two desalinization facilities in Cyprus.” See Amiram Barkat, “Mekorot CEO: We Could Earn Billions Abroad.” Globes Israel’s Business Arena, February 19, 2017, accessed May 22, 2017, http://www.globes.co.il/en/article-mekorot-ceo-we-could-earn-billions-abroad-1001177666.
Israel’s propaganda fails to take into account or mention that it has developed this sector at the expense of the Palestinian population and through the appropriation of Palestinian water resources. More specifically, Mekorot, a central player in the appropriation of Palestinian water resources and discriminatory allocations, has capitalised on this by entering into partnerships with companies and utilities in Brazil, Argentina,7676. “Argentine Water Treatment Deal Goes Sour on Mekorot,” Global Water Intel, March 20, 2014, accessed May 22, 2017, https://www.globalwaterintel.com/news/2014/12/argentine-water-treatment-deal-goes-sour-mekorot. and Mexico.7777. Viva Sarah Press, “Mekorot to Improve Mexico’s Water Quality.” Israel21c, December 1, 2013, accessed May 22, 2017, https://www.israel21c.org/mekorot-to-improve-mexicos-water-quality/.
In 2013, Mekorot entered into a cooperation agreement with the Bahia state water utility, Embasa, to provide technical consultations to help improve water resource management in Bahia.7878. Daniel Bland, “Israel, Brazil Sign Know-how Agreement for Bahia Water Management.” BNamericas, August 1, 2013, accessed May 22, 2017, http://www.bnamericas.com/en/news/waterandwaste/israel-brazil-sign-know-how-agreement-for-bahia-water-management. Bahia’s urban development secretary stated that “the goal of the partnership is to share know-how in groundwater exploration, water loss control, desalination technologies, and water resource management.”7979. Ibid.
International and Brazilian civil society engaged in advocacy and awareness-raising campaigns, calling on Bahia to cancel the agreement, highlighting Israel’s violations of international law through its oppressive policies and practices against the Palestinians, and Mekorot’s appropriation of Palestinian water resources.8080. “Movimento contra a cooperação com a Mekorot cresce na Bahia,” Stop Mekorot, April 12, 2016, accessed May 22, 2017, http://stopmekorot.org/movimento-contra-a-cooperacao-com-a-mekorot-cresce-na-bahia/. State representative Marcelino Galo, vice president of the Environmental Commission, Drought and Water Resources, demanded a review of the agreement with Mekorot, which eventually led to the cancellation of the agreement.8181. Ibid. On 11 April 2016, it was announced that Bahia had ended its cooperation with Mekorot.8282. Ibid.
In 2012, Argentina’s Buenos Aries governor, Daniel Scioli, met with Israel’s ambassador to Argentina and the CEO of Mekorot to discuss cooperation for developing strategic water and sanitation plans, including the design of a wastewater treatment plant in La Palta.8383. “Mekorot, La Empresa Estatal Israelí de Aguas Pretende Entrar en Argentina y Chile,” Observatorio Latinoamericano de Conflictos Ambientales, April 23, 2013, accessed May 22, 2017, http://olca.cl/articulo/nota.php?id=2568. The talks culminated into an agreement between the parties.8484. “La Plata MEKOROT Deal Suspended,” Aletho News, March 14, 2014, accessed May 22, 2017, https://alethonews.wordpress.com/tag/stop-the-wall/?iframe=true&preview=true/feed/.
Soon thereafter, Argentine civil society mobilised and formed various campaigns to inform the public of Israel and Mekorot’s illegal practices, as well as the fact that Argentine money would be contributing to Mekorot’s continued violation of Palestinian rights. This included a virtual campaign called Fuera Mekorot Argentina (“Mekorot, Get Out of Argentina”) which criticised governor Daniel Scioli for signing the deal with Mekorot for the construction of the water treatment plant in La Plata and demanded that the cooperation come to an end.8585. Cecilia Baeza, “Latin America’s Turn to the Right: Implications for Palestine.” Open Democracy, January 13, 2017, accessed May 22, 2017, https://www.opendemocracy.net/cecilia-baeza/latin-america-s-turn-to-right-implications-for-palestine.
In 2014, it was reported that Buenos Aires suspended the US$ 170 million water treatment plant contract with Mekorot due to pressure from activists, the Argentine Workers’ Central Union, and social movements, who argued that Mekorot was attempting to export the discriminatory water policies it uses against the Palestinian people to Argentina.8686. Ibid.
In November of 2013, Mekorot signed an agreement with the Mexican Environmental Protection and Natural Resources Ministry to provide the Mexico National Water Commission, La Conagua, with “technical assistance in protection of groundwater quality, carrying out rehabilitation of the underground reservoirs and quality control of the restoration of water resources.”8787. “Mexico and Israel Sign Agreement on Aquifer Remediation,” Comisión Nacional del Agua, November 27, 2013, accessed May 22, 2017, http://www.conagua.gob.mx/conagua07/contenido/documentos/Nota_Firmanacuiferos_IsraelMex_en.pdf. The agreement was dubbed “historic” as it is one of Mekorot’s largest agreements in years.8888. Amiram Barkat, “Netanyahu Aide Gets Rich on Mekorot-Mexico Deal.” Globes Israel’s Business Arena, May 25, 2014, accessed May 22, 2017, http://www.globes.co.il/en/article-netanyahu-advisor-makes-millions-on-mekorot-mexico-deal-1000941278. In addition, the Head of La Conagua and the Ambassador of Israel to Mexico, signed a Cooperation Agreement on water technologies and water resource management, which will be used to carry out joint projects relating to research, monitoring and evaluation of water use.8989. “Mexico and Israel Sign Agreement on Aquifer Remediation,” 2013. Unfortunately, there have been no reports of civil society campaigns against Mexico’s cooperation with Mekorot.
As highlighted by the UNGPs, companies are responsible for identifying, mitigating, and preventing negative human rights impacts, even when those impacts are a result of their business relationship. Therefore, Latin American companies should be aware of the risks that are associated with entering into agreements with Mekorot, given its control over and appropriation of Palestinian water resources, and the resulting negative human rights impacts on the Palestinian population. As demonstrated, civil society can play a vital and necessary role in reminding businesses and states of their obligations and in assisting in the protection of Palestinian human rights.
For 50 years of occupation in the OPT, Palestinians have suffered through violations of nearly all of their human rights. Israel’s control over Palestinian water resources is therefore just one facet of Israel’s oppressive occupation aimed at dispossessing Palestinians of their land and natural wealth.
Israel and Mekorot have not only exploited Palestinian water resources unchecked, but have developed an expertise in water technology solutions at the expense of the protected Palestinian population, and is marketing this to the world. Beyond the moral and humanitarian issues that Israel and Mekorot’s actions present in this context, they are illegal. Therefore, the international community, both states and businesses, must not condone or assist in the continued exploitation and appropriation of this vital resource. Indeed, states’ failures to abide by their international law obligations to hold Israel accountable for its human rights violations, and businesses’ continuation to entertain agreements with Mekorot, reinforce Israel’s illegal practices and dominion over Palestinian water resources, and ultimately ensure the continuation of Israel’s oppressive occupation. If Palestinians are to fully exercise their human rights, that to water and others, the occupation must come to an end.