The politics of water access under occupation: is international law sufficient?

Palestinian water crisis on track to worsen

Following the Palestinian
Authority’s April 26th
announcement that it will immediately
stop funding the Gaza Strip's electricity, purchased from Israel,
Gaza’s already catastrophic humanitarian situation is poised to
worsen. The move is seen by many as a shortsighted attempt by PA
President Mahmoud Abbas to exert pressure on Hamas in an effort to
show strength before his meeting
with US President Donald Trump, which took place on May 3rd.
Vital services dependent on emergency generators, such as dialysis
for 620 kidney patients, are now threatened. Furthermore, Gaza’s
longstanding, already-dire water crisis could be pushed over the
brink by such a large-scale electricity shortage. Periodically,
whenever a funding crisis threatens electricity shut-downs in
Gaza—and like clockwork around this time of year as the Middle East
heads into summer and temperatures begin to rise—the water crisis
that plagues Palestinians in both Gaza and the West Bank day in and
day out makes it into the headlines.

International law is designed to
prevent such blatant human rights violations, but it has been well
documented that Israel is no
stranger to justifying violations of international law and
humanitarian regulations. In an era of “Trump’s Israel,”
complete so far with uninhibited settlement
expansion, Jared Kushner
serving as senior adviser on the Middle East (whose family
has donated
tens of thousands of dollars to Israeli settlements
and are personal
friends
of Israeli Prime Minister Benjamin Netanyahu), and an
emboldened Israeli right,
the Palestinian
water crisis in the West Bank and Gaza is set to worsen. What role,
if any, do international humanitarian law and international water law
have for protecting Palestinian human rights, and the rights of
victims of armed conflict and occupation more broadly when it comes
to water?

Living on enough water for “short-term survival” indefinitely

The abysmal water access and
quality situation for Palestinians is a result of the Israeli
occupation of the West Bank and blockade of Gaza by Israel and Egypt,
which has left 50,000
people in the West Bank with minimum water levels recommended by
the World
Health Organization (WHO) for “short-term survival in an
emergency,” and only 25%
of Gazans with “daily” access to running water—with “daily”
often meaning one
to two hours per day. The UN calculated back in 2012 that Gaza’s
sole aquifer will be damaged irreparably by 2020, infiltrated by
seawater and contaminated by sewage, with the situation becoming
intensified
further as climate change increases regional drought. As it stands,
Gazans
only access about 25% of the coastal aquifer’s water annually,
with
the majority of water being absorbed by Israel.

Environmental organizations describe Gaza’s sewage crisis as a
“ticking
time bomb” that will contaminate regional water resources if
infrastructure is not repaired and Gazans are not granted access to
affordable electricity to run such plants.

As reported
by Jen Marlowe in Al Jazeera, communities like Wadi Gaza in the
central Gaza Strip are suffering from “an
increase in allergies, inflammation, fevers and weakened immunity.”
In addition to contaminating Gaza’s aquifer, the sole source of
freshwater, sewage run-off is having a systemic impact on Gaza’s
seawater and ecology.

Foad
al-Amodi, president
of the fishermen’s syndicate in Khan Younis, told Al Jazeera, “[The
sewage] has a big effect. It annihilated the algae that feeds the
small fish … [t]he sewage kills the small fish, which is what the
big fish feed on. With sea creatures such as shrimp and squid, the
sewage wiped out their eggs.” Amodi also described “red, itchy
rashes and skin infections” he and other fishermen experience. Rula
Abu Shammala described how her “18-month-old
nephew once swallowed some tap water during a bath, developed a fever
and diarrhea and lost 15 percent of his body weight. He required
medical care for two weeks.” Childhood kidney disease, ulcers, and
hair loss are widespread.

Denial of water access has
been used as an essential tactic in Israel’s path to cross the line
from occupation to annexation of Palestinian territory in the West
Bank.

Heavy
metals contaminate Gaza’s soil and water,
and
concerns have been raised about radiation contamination, since Israel
will not allow the import of radioactive testing
equipment
to Gaza. The catastrophic impacts of water, air, and soil pollution
from the
use of depleted uranium weaponry
has become all too familiar to civilians in Iraq, where an increase
in diseases such as childhood leukemia has been linked to low level
radiation contamination. Iraq
is yet another case demonstrating the severely deficient nature of
contemporary international water law and environmental law—and the
grievous disconnect between these bodies of law and international humanitarian law, clearly failing to protect civilians in conflict
zones. WHO has argued that Israel must be pressured to permit the
import of essential radioactive testing equipment into Gaza.

In the West Bank, diversion of
water to Israeli settlements—not
regional scarcity—is
the root cause of this crisis. The
average
daily consumption in Israeli cities is 287 liters—well above
the WHO and USAID minimum recommendation of 100 liters per person per
day—whereas the average in West Bank cities is dangerously low,
only 73 liters, with averages as low as 39 liters in Palestinian
cities such as Jenin.

Denial of water access has
been used as an essential tactic in Israel’s path to cross the line
from occupation to annexation of Palestinian territory in the West
Bank. The occupation
of the West Bank, including fragmentation caused by the separation
wall, facilitates “hydro-hegemony”—when
a state exploits its position as an occupying power in order to
dominate water resources in disregard of international law, as
hydropolitics expert Mark Zeitoun has demonstrated. [1]
The Israeli state exploits its position as the occupying power in
order to dominate and utilize West Bank water resources—demonstrating
its desire to perpetuate the occupation by all means necessary in
order to avoid a resolution that would necessitate forfeiture of land
from Israel to the would-be state of Palestine.

The Joint Water Committee
(JWC), established in 1995 through the Oslo Accords process, was
designed as a jointly Israeli/Palestinian-run body to regulate just
distribution of shared water resources—theoretically to prevent a
situation precisely such as that which has arisen. Intended to
function for five years, it exists over 16 years past its expiration
date, is largely defunct, only afforded veto power to Israel and
disregarded water resources for Gaza when it did function, and has
not met its mandate to provide equitable, safe water access for both
Israelis and Palestinians. The JWC was so lopsided that, at times,
the Israeli side was “so confident of the outcome that the minutes
of meetings [were] written ahead of time.” [2]
Settlement expansion and the water crisis are inextricably
intertwined. As Jan
Selby notes, “during
Benjamin Netanyahu’s first stint as Israeli Prime Minister, Israel
started making its approval of Palestinian water projects conditional
on simultaneous Palestinian approval of settlement water facilities.”

Deliberate destruction of water infrastructure

The protection of the human
right to water (which has a long history in the context of economic
and social rights, but was explicitly recognized as an independent
right by the UN in 2010 [3]),
has long been codified into international water law and international humanitarian law [4],
particularly in the 1997
UN Convention on the Law of the Non-navigational Uses of
International Watercourses, entered
into force in 2014, and the 1977
Additional Protocol 1 to the Geneva Conventions. [5]

Regardless, cyclical Israeli
military invasions perpetuate the water crisis in Gaza, as water
infrastructure is repeatedly damaged in the course of protracted
violence. During Israel’s 2014 invasion of Gaza, Operation
Protective Edge, three Israeli tank shells destroyed
Gaza City’s largest wastewater treatment facility. The water
facility was not a terrorist base, or being used to illegally conceal
weapons, as the IDF will often claim to justify such attacks (Hamas,
like Israel, has been accused of brutal war
crimes but Hamas’s
inexcusable actions do not, however, justify Israel’s decades-long
manipulation of civilian water resources). Such strikes appear to be
part of a broader process of deliberate “de-development,”
a concept famously
originated by Sara Roy, defined as a “process which undermines or
weakens the ability of an economy to grow and expand by preventing it
from accessing and utilizing critical inputs needed to promote
internal growth beyond a specific structural level.” Cutting
off water and electricity supplies for nearly two million people surely
stunts a population’s ability to economically prosper and
expand—let alone survive.

So, how can destruction of
critical civilian infrastructure, such as essential wastewater
facilities, be legally justified? Such an attack would appear to be
clearly protected within the bounds of both international water and humanitarian law. As Zeitoun highlights, however, in reference to
earlier bombardments of Gaza, “field-worn humanitarian aid
practitioners” from the ICRC have noted “It had been thought that
the practice of cutting off water supplies, prevalent in the Middle
Ages, had been rendered obsolete by the moralization of war.
Unfortunately … any such hope was illusory.” [6]
Furthermore,
there has been much
legal debate about Israel’s obligations to Palestinians under
international water law, since the
“Palestinian
Territories may not qualify as a ‘state,’ and thus, may not fall
under the purview of international water law.”
International legal
precedents demonstrate, however, that this argument is a non-starter
and
“persistent
delay tactic”
to reach a final resolution which would lead to a Palestinian state.

The 1997 UN Water
Convention is weak in the face of the politics of settler colonialism
and the power hierarchy of occupier and occupied.

Regardless, enforceability is desperately lacking in international water and humanitarian law. How, then, do we ensure the
implementation of “tak[ing] all appropriate measures to avoid harm”
to water resources, as mandated in Article 7 of the 1997 UN Water
Convention? In what cases are destroying “objects indispensable to
the survival of the civilian population,” such as Gaza City’s
largest wastewater treatment facility, deemed deliberate acts of war
as described in Article 54, Additional Protocol 1 to the Geneva
Conventions?

More importantly, following the August 2014 ceasefire that ended
the latest invasion and resulted in the withdrawal of Israeli troops
from Gaza—for now—what must be done about the damages resulting
from the wastewater plant’s destruction, and devastating damages
caused by countless other similar scenarios?

Law is weak in the face of politics

The 1997 UN Water
Convention is weak in the face of the politics of settler colonialism
and the power hierarchy of occupier and occupied.
It does not precisely define “appropriate measures” to avoid harm
to water infrastructure and shared water resources, nor
was it designed to cope with a ten-year blockade and protracted
warfare played out not simply through short-term bursts of force (as
in 2014), but through long-term subjugation of a population through
water access denial. These
laws exemplify how legal raw material to address water crises in
protracted armed conflict situations exists to a point, but it is
limited, vague, and lacks enforceability, in part because of the
ever-evolving mechanisms of oppression integral to occupation, and
because of the limited
number of states that are signatories to the 1997 UN Water
Convention (Israel has not ratified
the Convention; Jordan, Palestine, Lebanon, and Syria have.)

Paragraph 2, Article 7
of the 1997 UN Water
Convention describes the “Obligation not to cause significant
harm”:

Where significant harm
nevertheless is caused to another watercourse State, the States whose
use causes such harm shall, in the absence of agreement to such use,
take all appropriate measures … in consultation with the affected
State, to eliminate or mitigate such harm and, where appropriate, to
discuss the question of
compensation.

Arguably, one of the most
interesting and significant snippets of the 1997 Convention are those
five simple words in the last line: “discuss
the question of compensation.”
Article 7 states that, in scenarios where “all appropriate”
measures have been taken by one state to avoid harm to another state
but harm still comes about, the harm-causing party must
“in consultation
with the affected State … eliminate
or mitigate
this harm” and then
“consider compensation” “where appropriate” for the harm that
has already been caused.

History
has shown that an improved legal framework may not deter states from
future violations

Who determines when the
“appropriate” time to discuss compensation occurs, and according
to what criteria is this determination made? What happens when the
harmed party is not a state, but an occupied territory? A path to
strengthening the 1997 UN Water Convention would be to replace this weak
language about mere “discussion,” and instead explicitly require
reparations for incidents such as the bombing of a wastewater
treatment plant in occupied territory. History
has shown that an improved legal framework may not deter states from
future violations, but
could be consequential in the context of international legal fora
such as the possible
investigation of war crimes in Palestine by the International
Criminal Court.

Reparations for destruction of water infrastructure?

As
Stephen
McCaffrey insightfully argues,
within the 1997 UN
Water Convention, “[t]he
emphasis on prevention is important, since it is often difficult to
stop or modify an activity once it has begun, and it can be very
complicated and expensive, if indeed it is possible, to remedy harm
once caused.”
Unfortunately, in the Israeli-Palestinian case, there has not been a
willingness to “stop or modify” the activities that are the
primary cause of Palestinians’ lack of access to safe and reliable
water supplies. Thus, two decades since the Convention was adopted by
the UN, it is high time that the part of the Convention that deals
with what happens when harmful activities are not “stop[ped] or
modif[ied]” is fleshed out.

The
Palestinian water crisis is both a symptom of the Israeli occupation,
and a tool used to maintain it

By reserving resolution of the
water crisis to "final status" negotiations—just as Israel has done
with the question of the right of return for refugees—Israel
perpetuates the Palestinian water crisis. By perpetuating the water
crisis, Israel perpetuates the repression of the West Bank and Gaza,
violating human rights and keeping the Palestinian economy stunted,
thereby delaying “final status” negotiations and keeping
Palestine a continually weak negotiating partner should “final
status” negotiations come about in the near future. Ultimately, the
Palestinian water crisis is both a symptom of the Israeli occupation,
and a tool used to maintain it.
Meanwhile, Israel continues to build settlements and annex more and
more of the West Bank.

Much of the debate about
Palestinian water rights has centered on “whether
customary water laws that normally apply to sovereign … states
should also apply to the occupied territories.”
This question need not be the focus of legal protection for
Palestinian water rights. As occupied people
(including
Gaza),
Palestinians are entitled to protection under international
humanitarian law. Focusing legal analysis primarily on the question
of Palestinian statehood as a prerequisite for Palestinian water
rights feeds into an approach of delaying the possibility of a
Palestinian state, and in turn delaying full Palestinian access to
water resources. An end to the occupation and blockade is the
ultimate way to resolve the water crisis, but a shift in discourse
about Palestinian legal rights is helpful en route to this goal.

Though not without flaws,
technical solutions, such as desalination in the Gaza Strip, are more
likely than international law to bring about change in the
short-term. Concerns
about desalination include dependence on Israel for electricity
to keep a desalination operation running—clearly a risk given the
current electricity cut-off—as well as apprehensions that
desalination does not adequately grapple with unsustainable
Palestinian dependence on foreign aid, and that reliance on
desalination could allow Israel “to
avoid its obligation to allow Gaza to access water in the West Bank.”
However, a desalination
plant recently installed by UNICEF with financial support from the EU,
the largest plant in the Gaza Strip, has brought some hope.
Desalination plants will continue to be a key mechanism for securing
water in Gaza in the near future, and are superior to desalinated
water produced in the private sector, which still carries a high risk
of contamination. Nevertheless, desalination operations remain
vulnerable to the Strip’s ever-limited electricity supplies.

The 1997 UN Water Convention would
be strengthened if it demonstrated greater cognizance of humanitarian
law and its applicability to occupied peoples, not simply states.
Additional Protocol 1 to the Geneva Conventions already states “A
Party to the conflict which violates [international humanitarian law]
shall … be liable to pay compensation. It shall be responsible for
all acts committed by persons forming part of its armed forces.”
[7]
However, the Geneva Conventions do not provide explicit guidance on how this
type of compensation must be delivered in non inter-state conflict and through non intra-state mechanisms.

This gap between international
humanitarian law and international water law could be addressed
through an updated successor convention to the 1997 UN Water
Convention to enable it to become a “living
treaty,” or addressed by the ICRC in an updated
Commentary
on the Geneva
Conventions, the most recent of which was released in 2016 to shed
light on the applicability of humanitarian law in the contemporary
era. There is also increasing legal recognition of an “indigenous
right to water”—a potentially significant development for
Palestinians as an indigenous people. The most pressing issue on
which humanitarian law and water law need to be applied in greater
harmony is the question of compensation. Israel should clearly be
required to pay reparations for the destruction of civilian
infrastructure such as Gaza City’s water plant. Though Israel could
blatantly disregard such a recommendation, just as it disregarded the
International
Court of Justice’s ruling on the illegality of its separation wall,
the law as it
stands now enables Israel to continue to act with impunity on the
issue of Palestinian water rights. The
1997 UN Water Convention, and related laws, would be strengthened if
protections for stateless victims of the misuse of water resources
were laid out just as clearly as protections for states.

Law’s loopholes

Clearly
international law currently has too many loopholes when it comes to
water rights and environmental contamination, leaving civilians in
conflict zones devastatingly vulnerable to human rights violations.
But will enforceability increase if reparations requirements are
implemented? This answer depends on more than law alone. Certainly in
the Palestinian case, reparations will not reverse war’s
irreversible damage, such as the deaths
of over 500 children during 2014’s war. The United States
provides $3.1 billion annually in foreign aid to Israel, and in 2016,
83
members of the U.S. Senate
called to increase
aid to $5 billion as the US offered Israel the largest-ever
military aid package. Politics often overpowers law, and the complex
damage of war will not be eliminated solely through stronger legal
protection of the human right to water. Justly crafted laws, however,
have the potential to influence politics and increase civilian
protection. International law ought to be pushed to function in
dialogue with the complex political realities of water access and
environmental protection, in order to become better equipped to
support civilians impacted by unjust water access denial under
occupation and during violent conflict.

Note: This article is based on
work in progress for Carly A. Krakow’s MPhil dissertation at the
University of Cambridge.

Notes

[1]
Mark Zeitoun. Power
and Water in the Middle East: The Hidden Politics of the
Palestinian-Israeli Water Conflict
(London: IB Tauris, 2012), 15, 145.

[2]
Ibid.,
147-48.

[3]
Edith Brown Weiss. International
Law for a Water-Scarce World.
(Leiden: The Hague Academy of International Law, 2013), 191-242.

[4]
Zeitoun, supra
note 1 at 35, 147.

[5]
Zeitoun,
supra
note 1 at 36.

[6]
Pier Giorgio Nembrini, 1995, as cited in
Zeitoun, supra
note 1 at 92.

[7]
Christine
Evans. The
Right to Reparation in International Law for Victims of Armed
Conflict.
(Cambridge: Cambridge University Press, 2012), 28-34.