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The Politics of Water Access Under Occupation: Is International Law Sufficient?

Sunday, May 14, 2017 By Carly A. Krakow, openDemocracy | News Analysis
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Palestinian men sit in the shade next to a destroyed water reservoir in Khuza'a, in the southern Gaza Strip, Aug. 4, 2014. (Photo: Sergey Ponomarev / The New York Times) Palestinian men sit in the shade next to a destroyed water reservoir in Khuza'a, in the southern Gaza Strip, August 4, 2014. (Photo: Sergey Ponomarev / The New York Times)

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 annuallywith 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 Watercoursesentered into force in 2014, and the 1977 Additional Protocol 1 to the Geneva Conventions. [5]

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, 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. 

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. 

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. 

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

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 US 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. 

Sources

[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.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Carly A. Krakow

Carly A. Krakow is a graduate student in the Department of Politics and International Studies at the University of Cambridge. Her research, writing and activism focus on human rights, international law, the rights of refugees and internally displaced people, and environmental politics with a regional focus on the Middle East and North Africa. Follow her on Twitter: @CarlyKrakow.

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The Politics of Water Access Under Occupation: Is International Law Sufficient?

Sunday, May 14, 2017 By Carly A. Krakow, openDemocracy | News Analysis
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Palestinian men sit in the shade next to a destroyed water reservoir in Khuza'a, in the southern Gaza Strip, Aug. 4, 2014. (Photo: Sergey Ponomarev / The New York Times) Palestinian men sit in the shade next to a destroyed water reservoir in Khuza'a, in the southern Gaza Strip, August 4, 2014. (Photo: Sergey Ponomarev / The New York Times)

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 annuallywith 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 Watercoursesentered into force in 2014, and the 1977 Additional Protocol 1 to the Geneva Conventions. [5]

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, 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. 

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. 

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. 

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

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 US 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. 

Sources

[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.

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Carly A. Krakow

Carly A. Krakow is a graduate student in the Department of Politics and International Studies at the University of Cambridge. Her research, writing and activism focus on human rights, international law, the rights of refugees and internally displaced people, and environmental politics with a regional focus on the Middle East and North Africa. Follow her on Twitter: @CarlyKrakow.