Return Palestinian Water Rights If Not Land: A Proposal

Volume XII, Spring 2005, Number 1

EXCERPT: Return Palestinian Water Rights If Not Land: A Proposal

Harald Frederiksen

Mr. Frederiksen, former head of the Water Resources Unit that supported country departments in the World Bank's East and South Asia regions, is a private consultant in water-resources management.¹

A fundamental barrier to solving the Israel-Palestine conflict is the demand of the "right of return" for the one million expelled Arabs and their families to the lands they owned within Israel. Though the right is inherent in U.N. Resolution 181, specific U.N. resolutions and international laws, Israel rejects its further consideration. A variation of this demand is offered here as a component of the agreement -- the transfer of the water rights that the expelled Palestinians held, intrinsic with these lands, residences and industries, to the areas where these people now reside. This would help ameliorate the water crises in not just the Occupied Territories, but also in the affected neighboring countries. The proposed measure entails physically straightforward actions with reasonable costs. There is a sound legal basis within international instruments for such action. And, fortunately, Israel has other ample sources of water supply.

WATER MATTERS MOST
Water is the critical resource in hot arid climates. Sovereignty over such an area's water conveys power over the economic development and social well-being of the inhabitants. Israel's strategy and applied might in the Middle East conflict have stripped not just the Arabs' land within Israel, but -- even more important -- their water. Upon occupation of Gaza and the West Bank, Israel assumed full control of the remaining Palestinian water resources, leaving the Arab residents and refugees the most water-deprived people in the entire region; indeed, one of the most deprived in the world.

The expulsion of the Arabs from Israel during the '48 and '67 wars had broad and equally serious consequences for both the expelled and the residents of the areas receiving the refugees. The imposition of this number of people on the neighboring lands, whose resources were already strained, has overwhelmed the water supply to the extent that neither the people transferred nor the citizens receiving them have sufficient water for a viable economy and a secure future.

These features of today's situation require that the Israeli-Palestinian negotiations also respond with an equitable water remedy for all within the region affected by the conflict.

THE STRATEGY FOR CONTROL
The early Zionists recognized the essential role of water and sought to expand the supply for the proposed state from the outset. In 1919, two years after the Balfour Declaration, Chaim Weizmann wrote to British Prime Minister David Lloyd George:

     . . . The whole economic future of Palestine is dependent upon its water supply for irrigation      and for electric power, and the water supply must mainly be derived from the slopes of Mount      Hermon, from the headwaters of the Jordan and from the Litani river. . . . [We] consider it      essential that the northern frontier of Palestine should include the valley of the Litani, for a      distance of about 25 miles above the bend, and the western and southern slopes of Mount      Hermon . . .

In 1922, the British unilaterally adjusted portions of the existing boundaries within the British Mandate in partial response to this request. It set the eastern boundary of what became Israel under U.N. Resolution 181, thirty feet to the east of Lake Tiberias and 150 to 1,200 feet to the east of the upper Jordan River rather than in the more common location - the center of the water course. Though later rescinded by the British Government, U.N. Resolution 181 adopted the realignment, giving Israel physical control of this key resource together with the groundwater and lands of the Coastal Plain.

At the end of the 1948-49 war, 750,000 Arabs were driven from the urban areas and the lands within Israel that they owned, a majority of the land comprising Israel.

The associated domestic and industrial water, together with huge quantities of irrigation water expropriated by this expulsion, was thereby freed for use by Israel's new immigrants. However, Syria still held onto an access to Tiberias and a short stretch of the Jordan River.

The 1967 War consolidated Israel's control of all water resources. Israel regained the Tiberias and Jordan River boundary and added the extensive water resources of the Golan Heights, Gaza and the West Bank. An additional 200,000 Arabs were driven from their lands within Israel, losing their water. Was this war part of Israel's water strategy? Years later, Menachem Begin said,

     In June 1967, we again had a choice. The Egyptian Army concentrations in the Sinai      approaches do not prove that Nasser was really about to attack us. We must be honest with      ourselves. We decided to attack him.

Earlier, Israeli air strikes had destroyed Syria's attempt to develop part of an interior tributary to the Jordan River and Tiberias.

Israel subsequently declared all data on the water resources of the Occupied Territories a state secret and halted further development of water by the Arab residents. Israel connected Palestinian urban supplies in the territories to the central conveyance system within Israel, to physically control the water, and raised the price of water to Palestinians far above that in Israel and the rates assessed the Israeli settlements that were later established in the Occupied Territories. Israel now exports 80 percent of the water extracted from the aquifers underlying the West Bank. Deep wells to serve the Israeli settlements have dried up many existing Palestinian rural and agricultural wells and springs.

Today, Israel uses over 95 percent of the water available to greater Palestine; the Palestinians receive the remainder. These quantities do not include the very substantial Negev Aquifer, Israel's reuse of Jordan River Basin water or the ready access of its urban areas to Mediterranean desalination plants. In addition, 64 percent of Israel's total supply is used in the highly subsidized irrigation of 640,000 acres, which contribute only 2.5 percent of Israel's GDP. This alone constitutes a substantial reserve for reallocation.

Thus, within 20 years of its creation, Israel had gained control over the entire area's water resources. Its military power, supported by international financial and political assistance, overwhelmed the Palestinians and its other neighbors. Further, the economic strategy apparent within the water strategy has resulted in the ever-increasing devastation of the economic and social viability of the Occupied Territories. The neighboring countries are weakened, in serious straits from the loss of significant quantities of their Jordan Basin water resources. This has been greatly aggravated by the influx of the displaced Palestinians.

ARAB LANDS DESPERATE FOR WATER
The dire water conditions in the Arab states have received little public attention within the Israel-Palestine or greater Middle East deliberations. The 20 Arab countries in North Africa and the Middle East have the lowest per-capita water supply of any major region in the world. Of additional concern, 35 percent of the region's supply is from rivers originating in other countries that are developing their headwater resources - the Tigris, the Euphrates and the Nile. The water-related policies and programs of individual countries inevitably affect their neighbors. Turkey's massive development will reduce the historic Euphrates inflow to Syria by 40 percent and to Iraq by 80 percent.

The per capita renewable water supply in the region will have dropped 80 percent during the period from 1960 to 2020. The current extraction rate of renewable water resources greatly exceeds the rate of replenishment in every one of these countries. By 2020, 14 of the 20 countries will fall below 500 cm per capita, per year, classified by the United Nations as absolute stress. And this does not consider conditions of prolonged drought.

A population growth of 3 percent aggravates the region's predicament. (Israel has a similar rate, caused largely by an aggressive immigration policy aimed outside the region.) Urban water demands will accelerate, since agriculture cannot provide additional employment at viable levels of income. Nevertheless, in the poorer countries, water will have to be reallocated from agriculture to urban uses together with better management. But time is required to create alternative employment, and uncompensated reallocation carries serious social and political risks. The location of irrigation supplies relative to the location of potential urban users also limits opportunities.

Desalination of ocean and brackish groundwater will be the primary option in several of the countries, particularly to secure the degree of reliability essential for municipal and industrial uses. But infrastructure investment, energy and maintenance will be massive burdens, exceeding the capacity of many that are most in need.

ISRAELI WATER DEMANDS
Prime Minister Ariel Sharon, like Ehud Barak, demands full control and sovereignty over the water resources of a state of Palestine. Palestine must agree to not seek return of the Occupied Territories' water rights or arbitration of those and other rights seized by Israel. It may not seek a remedy through the International Court of Justice. Provisions of the Geneva Convention, various U.N. Resolutions (including U.N. Resolution 181, which created the two states within historic Palestine), and the U.N. Law on International Watercourses are to be set aside.

These are hardly the provisions of a "generous" peace offer to President Yasser Arafat as repeatedly stated by U.S. and Israeli government officials and their countries' media. Now Israel's separation "wall" is wandering from the '67 boundary in a manner that enhances Israel's longer term access to the waters of the Occupied Territories.

Israel has not negotiated a peace agreement with Syria because of the fundamental water issues involved in the taking of the Golan Heights. Prof. Hillel Frisch, senior research fellow at the Israeli Begin-Sadat Center for Strategic Studies, has written on the subject. After disputing the wisdom of addressing Palestinian claims, Prof. Frisch stated in a conference report (2000) sponsored by BESA that

     the present article assumes that Israel must continue to regard water as a resource that not      only provides sustenance for life itself, but also enhances the State's political and strategic      power. . . . The only thing the author of this article can say is that water seems to provide one      more reason not to make peace with Syria.

THE EXPELLED AND OCCUPIED HAVE RIGHTS
Numerous questions pertaining to international instruments adopted by the international community are evident in the Israel-Palestine conflict. Certainly, not since the adoption of current international instruments have unilateral military actions openly determined the control and radical reallocation of resources to the extent found in this case. The applicable international instruments include the Hague Convention on War (HC), 1907; the United Nations Charter, 1945; the International Court of Justice (ICJ), 1945; the Fourth Geneva Convention on War (GCW), 1949; the International Covenants for Economic, Social and Cultural Rights (ICR), 1966; the Helsinki Rules on the Uses of the Waters of International Rivers (HR), 1966; the Law of International Watercourses (LIW), 1997; and numerous U.N. General Assembly and Security Council resolutions including U.N. Resolution 181.

Questions that should be answered by the international community include

May a nation selectively confiscate long-established water-use rights by creating two classes of citizenship?
May a nation expropriate water by removing owners of water rights from access to their water and preventing its transfer to their newly imposed place of residence?
May an occupier expropriate the water of an occupied land?
Did U.N. General Assembly Resolution 181 allocate the water of Palestine?
With respect to an international watercourse, may a nation (a) expropriate water already committed in a watercourse, (b) unilaterally divert waters out of a basin, (c) destroy the valid water diversions of other riparians, (d) divert salt-laden drainage into the supply of other riparians, and (e) over-exploit resources and thereby cause irreparable environmental damage?

The international community's answer to these questions and its actions regarding the rights of the Palestinians and other riparians of the Jordan Basin will determine the viability and duration of any agreement. Of equal concern, it will set fundamental precedents for resolving the world's many existing and future disputes over water resources.

EXPULSION STRATEGY AND ACTIONS
Question 2 above is at the heart of the proposal offered in this paper. It pertains to the expropriation of the water resources of the non-Jewish residents driven from the original U.N. Resolution 181 area and from the expanded area annexed by Israel during the 1948-49 and 1967 wars. Detailed records confirm the existence of an expulsion strategy and the results. During the 1948-49 and 1967 wars, Israel expanded the area within its borders from the 55 percent granted under U.N. Resolution 181 to 78 percent of historical Palestine. Israel forced non-Jews to flee the area that became Israel and prevented them from returning. Most non-Jewish villages were destroyed as a further deterrent.

Some contend that the 950,000 Palestinians vacated their villages, land, homes and businesses voluntarily and without the intention of returning. This allegation has been used to justify the expropriation of their assets, including water. Israeli archives, however, record the intent and actions as set forth in its Plan Dalet. A Zionist Transfer Committee worked under guidelines approved by Ben- Gurion. These guidelines were called the "Scheme for the Solution of the Arab Problem in the State of Israel." To that end, the Committee's Memorandum, "Retrospective Transfer," called for

     . . . preventing Arabs from returning to their homes; destroying Arab villages during military      operations; preventing cultivation (and harvesting) of Arab lands; settling Jews in Arab towns      and villages; instituting legislation barring the return of the refugees; launching a propaganda      campaign designed to discourage the return of refugees; and campaigning for the resettlement      of the refugees in other places.

By June 1, 1948, roughly 370,000 Palestinians had fled, a figure that would\ double by the end of the war. The Israeli Defense Forces (IDF) Intelligence Branch categorized the reasons for the Palestinians' exodus as follows: ". . . Haganah/IDF operations - at least 55 percent; . . . operations by IZL [Irgun] and Lehi - 15 percent; and . . . whispering campaigns (psychological warfare), evacuation ordered by IDF, and general fear - 14 percent." In the words of the Israeli historian Meir Pa'il, ". . . one-third fled out of fear, one-third were forcibly evacuated by Israelis . . . [and] one third were encouraged by the Israelis to flee.'"

The destruction of villages that facilitated the expropriation of Palestinians' assets, including water rights, is described in several documents. The chairperson of the Israeli League for Human Civil Rights, Israel Shahak, recorded the number of Palestinian Arab villages destroyed by area. Shahak stresses that his "documented list is incomplete," but it does show that of the 475 Palestinian villages included, all but 90 were destroyed. Moshe Dayan confirmed the actions in his address to the Technion (Israel Institute of Technlogy) at Haifa, as quoted in the Israeli newspaper Haaretz on April 4, 1969: "Jewish villages were built in the place of Arab villages. . . . There is not one single place built in this country that did not have a former Arab population." The provisions of the U.N. Charter, U.N. Resolution 181, ICR and HC apply to this issue but will not be expanded upon here. However, it should be recalled that residents of historical Palestine also are members of those international organizations to which the United Kingdom, Jordan and Egypt belonged, as cited in U.N. Resolution 181. Articles of the GCW prohibit the transfer/expulsion of the residents of an area taken over by another entity:
     Art. 2. . . . the present Convention shall apply to all cases of declared war or of any other      armed conflict . . . . Although one of the Powers in conflict may not be a party to the present      Convention, the Powers who are parties thereto shall remain bound by it in their mutual      relations. . . .
     Art. 4. Persons protected by the Convention are those who, at a given moment and in any      manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party      to the conflict or Occupying Power of which they are not nationals. (Note: Arabs living within      Israel are not legal "nationals" under Israel's Basic Laws.)
     Art. 6. The present Convention shall apply from the outset of any conflict or occupation      mentioned in Article 2. . . .
     Art. 47. . . . prohibits the transfer or deportation of residents of occupied territories.
     Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from      occupied territory to the territory . . . of any other country . . . are prohibited, regardless of      their motive.

Israel was admitted as a member of the United Nations on May 11, 1949, under three conditions: that it do nothing to change the status of Jerusalem (per U.N. Resolution 181); that it allow the Palestinian refugees to return to their homes or compensate those choosing not to return (per U.N. Resolution 194); and that it respect the borders established by U.N. Resolution 181 (55 percent of historic Palestine to the Jewish state and 45 percent to the Palestinian state). These provisions of international instruments were violated the same year. The U.N. Security Council unanimously adopted Resolution 242 on November 22, 1967, condemning Israel's "preemptive military campaign."

IMPLICATIONS An equitable resolution of the "return" issue, the refugee burden on the neighbors' resources and the social and economic conditions of all residents in the Occupied Territories and affected countries should be an urgent goal of the international community. The alternative is the associated poverty and human deprivation with the attendant acts of desperation that arise when all else becomes hopeless.

The proposal would return the quantity of water used by those Arabs not allowed to return to Israel under the final agreement. This water should be assigned in full, proportioned to the Palestinian state and countries that were forced to receive those refugees. An incentive for Israel would be to allow it to forgo full compensation to the refugees for Israeli use of the resources for the intervening years as provided for in U.N. resolutions.

The Occupied Territories are in desperate straits; the refugees share what little water they are allowed by Israel. Jordan is close behind, in large part caused by its majority population group of Palestinian refugees. Syria is already stressed with a refugee demand and the loss to Turkey of supply from the Euphrates. These three - the Palestinians, Jordan and Syria - should be the primary recipients of this water. Iraq, and to a lesser extent Lebanon, are the only two Arab countries with sufficient water to support a satisfactory level of economic and social well-being in the Middle East, excepting the oil-rich countries that still can afford desalination.

As stated earlier, minimal infrastructure would be required for Israel to release the quantity of water involved into the Jordan system for diversion by the three riparians. Fortunately, Israel has ample replacement sources.

But it should be made clear that a return of the rights to a quantity of water equivalent to the amount expropriated from the expropriated "land" holdings of the displaced is not to be assumed to resolve the issues for all other water rights taken by Israel from Jordan River riparians or the aquifers underlying the Occupied Territories. The other rights should be reestablished as provided by the cited instruments.

¹ Portions of this article draw upon two earlier papers by the author, "Water: Israeli Strategy, Implications for Peace and the Viability of Palestine," Middle East Policy, Vol.10, No. 4, December 2003; and "The World Water Crisis: Ramifications of Politics Trumping Basic Responsibilities of the International Community," International Journal of Water Resources Development, Vol. 19, No. 4, December 2003.

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