March 1, 2013
By ruling that Bedouin citizens of Israel have only the right to 'minimum access’ to water rather than 'equal access,’ the Israeli Supreme Court established that the rule of law does not apply to Bedouin citizens. The resulting situation is intolerable for a country that claims to be a democracy, but is fitting for a country that defines itself only as a 'Jewish state.’
The mosque at the unrecognized Bedouin village Um al-Hiran (photo: Yossi Gurvitz)
On February 20, the Israeli Supreme Court dismissed an appeal by residents of the unrecognized Bedouin village of Umm El-Hiran in the Naqab (Negev), demanding minimum access to drinking water. which holds 500 residents. The appeal was filed by Adalah, the Legal Center for Arab Minority Rights in Israel on behalf of the village’s 500 residents.
The residents of the village Umm El-Hiran arrived in 1956 when they were forced to move there by the Israeli military commander. Today, 58 years later, they get their drinking water from a water tank provided by the Israeli Water Authority, which decided to locate the tank eight kilometers away from the village. Alternately, the residents can to purchase drinking water from a private family that lives four kilometers away. The latter option is complicated by the fact that there are disputes between some villagers and that private family. More importantly, the family charges a higher price for water than the one set by the Water Authority.
In other words, although the state is responsible for providing drinking water directly and equally to all its citizens, the village residents can either get the water by themselves from the water tank a lengthy distance away or live under the grace of a private family and pay more than all other citizens. Meanwhile, the nearby Jewish community of "Amos," which consists of only one family numbering a few persons, is connected to water infrastructure that reaches directly to their home with proper facilities – just like the other 30 or more individual Jewish settlements in the Naqab.
The Supreme Court’s decision in February ended an eight-year legal struggle in different Israeli courts. This situation did not come about as a result of lack of natural resources but rather because of an intentional governmental policy not to connect Umm El-Hiran, as well as another 90,000 other Bedouin living on their ancestral lands in 34 unrecognized villages, which are unconnected to water sources to this day. The government has made it clear that the policy is intended to pressure and coerce the Bedouin residents to leave their land by denying them services. The purpose of this evacuation policy is to enable the establishment of new Jewish towns on the same land, create industrial zones under the jurisdiction of Jewish towns or even for the mere purpose of forestation.
This court decision follows a previous ruling issued by the Israeli Supreme Court in June 2006, which dealt with the villagers’ demand to connect their houses to drinking water infrastructure. In a precedent ruling, the court held that the right to water is part of the constitutional right to minimum standard of living, which itself is anchored in the constitutional right to dignity. However, it ruled that citizens living in those unrecognized villages are not entitled to a direct connection to drinking water in their homes. The court basically accepted the state’s argument that the purpose of the refusal to connect the villages to water is the fact they are not recognized by the state, and thus the villagers are trespassers. As such, they are not entitled to any of these services, no matter how basic and essential, including water, electricity, education and health, etc.
The state also declared in court that if it connects the unrecognized villages to water it will "encourage the continuing phenomenon of the unrecognized villages," and thus by denying permanent water sources it can create an "incentive for the Bedouins to move to villages established by the state itself" – further evidence that the state is using the water issue to pressure villagers to evacuate their land. The court confirmed that the purpose of this policy is adequate and reasonable.
However, the court added that the villagers are entitled to minimum access to water, as an essential resource, without defining "minimum access." The only exception for which the court allowed direct water connection to the residents’ houses was for "special humanitarian considerations." After reviewing the case of Umm El-Hiran, the court concluded it is not clear that the water tank eight kilometers away meets the criteria of "minimum access," and ruled that their case should go back to the Water Authority for re-examination. Adalah appealed on behalf of the villagers to the Water Authority to reconsider providing "minimum access" to water closer to the village; the Authority dismissed the request. Adalah’s next appeal, to the Water Tribunal, was dismissed as well.
As a result the case reached the Supreme Court again. This late action resulted in the most recent court decision, which once again justified the government’s policy of "encouraging" the villagers to move from their lands while declaring again that the current circumstances sufficiently meet the "minimum access" to water criteria.
With this ruling, the court established that the rule of law does not apply to Bedouin citizens of Israel. In upholding the state’s argument that denying the water could pressure Bedouin citizens to move from their land and that the villagers are entitled to "minimum access" to water rather than "equal access" like other citizens, the Israeli court basically justified the refusal to connect citizens to drinking water as a tool for punishing all Bedouin who refuse to leave their land. This goes hand-in-hand with the fact that Israeli authorities intentionally resist recognizing Bedouin land ownership rights.
The resulting situation is intolerable for a country that claims to be a democracy, but it is tolerable for a country that defines itself only as a "Jewish state." The court refused to acknowledge that this group of its citizens is entitled to "equal" access to water, sticking instead with "minimum access." That places Bedouin citizens on a lower level than other Israeli citizens in terms of constitutional rights.
Thus the justice system officially refrained from declaring them equal to other citizens. Finally, providing an exception for direct connection to drinking water based on "special humanitarian considerations" moves the discourse of Bedouin rights from a constitutional and human rights issue into the framework of humanitarian rights. Humanitarian legal frameworks are applied in situations of occupation, such as Israel’s occupation of the West Bank. In effect, Israel’s occupation mentality is being legally applied inside the Green Line, and places Bedouin citizens under the authority of an occupying power.
Sawsan Zaher is an Attorney and Director of the Social, Economic and Cultural Rights Unit in Adalah, the Legal Center for Arab Minority Rights in Israel.
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