Rule of Law: Is there no law in the South?

A flyover and a tale of two villages, where court rulings confront Beduin geographic and cultural realities.

By
July 26, 2015 10:15
Beduin

BEDUIN BOYS walk toward the ‘unrecognized’ village of Um Al-Hiram in the Negev.. (photo credit: REUTERS)

You never really appreciate how vast the Negev is and how many hundreds of Beduin villages dot the South until you view the full picture from the sky in a flyover tour, as recently undertaken by The Jerusalem Post.

Maybe that is what is most significant when trying to get a handle on the full and infinitely complex issue of how to balance showing respect to the Beduin and their villages with developing the South by building new cities there.

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While there are certainly plenty of large empty areas, from the air you understand that truly building up the South without moving some villages around would be no easy task, if not an impossible one.

Impossible or not, there will eventually be a decision – with massive and historic consequences.

Broadly speaking, the Beduins and their Israeli-Arab MK and NGO supporters, like Adalah, as well as their reported northern Islamic Branch and Gulf states’ supporters, argue that the Beduins lived where they live long enough that moving them is not an option.

Also, they argue that the whole idea of moving them is emphasizing Jewish settlement of the Negev at the expense of Beduins’ rights to self-determine where they live, that the South is large enough that it is unnecessary and that destroying their villages is a draconian way to realize the goal of Jewish settlement.

The government and the NGO Regavim, which presses for removing Beduin villages the state views as illegal, say that the Beduins have not been on the land they claim until recently, never got legal title, that only some, not all of them need to move and that they are being offered fair compensation and new plots of land to move to.

Further, they say the South cannot be built up without moving a certain number of Beduin villages.

How does one vet the arguments and counterarguments on whether to move Beduin villages to make room for new cities? How to arrive at a policy? Possibly the courts, often viewed as more objective, can assist. This could be especially true now, considering the recent flood of landmark rulings by the High Court of Justice on ownership rights of Beduin villages.

The rulings center around two tiny villages in the South – Arakib and Umm el-Hiran. Each has fewer than 1,000 residents, and both were likely selected by Beduin activists as the most ideal or sympathetic cases to argue before the High Court for Beduin legal rights to avoid eviction. (The Beduin do not go to the High Court to fight every village eviction but, rather, choose to make their stand in high-profile cases.) Arakib was likely selected because it has been demolished more than 60 times, which embarrasses the state, as the daunting number of demolitions portrays it as heavy-handed and ineffective.

By contrast, while some houses have been demolished at Umm el-Hiran, the village as a whole has remained since the 1950s. Rather, Umm el-Hiran was selected as a flagship case because its Beduin have the unusual distinction of having been moved there in the 1950s by the IDF itself.

Why have Arakib and Umm el-Hiran, at least until recently, been treated so differently by the state? Part of the answer comes down to a simple road: Route 40. And on this the two villages provide a window into some of the central but little-known dynamics operating in the South.

Arakib lies west of Route 40, while Umm el-Hiran lies east. After the 1949 Armistice, the area west of Route 40 was smaller and Beduin in the west stayed more clumped together, leaving more room for Jewish kibbutzim to spring up. Though the area east of Route 40 was larger, Beduin in the east spread out far more than in the west, which, among other reasons, led to fewer Jews settling in the area.

All of this added up to the state sometimes being relatively more aggressive in going after Beduin building in areas considered illegal by the state in the west and relatively less aggressive in going after Beduin in the east.

Along with the state viewing Arakib as a more recent phenomenon whose building took off more in 2000 (the Beduin dispute this point), the more aggressive enforcement on the west side of Route 40 could partially account for the over-60 times Arakib has been demolished.

Along with Umm el-Hiran’s unique history – its Beduin being able to claim that in the 1950s the state sent them to live in that area – the less aggressive enforcement on the east side of Route 40 could partially account for the zero times that Umm el-Hiran has been completely demolished.

Much of the above is agreed on history.

Whether the Beduins spread out as they did of their own accord disregarding state directives or whether the state unofficially declared certain areas “Beduin free” and pressed the Beduin to settle in other areas, is hotly debated by groups like Adalah (supporting the Beduin staying) and Regavim (supporting moving some of the Beduin.) What happened recently with Arakib and Umm el-Hiran in the courts? In mid-April, the Arakib Beduin seemed to have achieved a historic victory. A special seven-justice panel of the High Court ruled in favor of the Beduin on a major legal point, overturning decades of precedent in favor of the state.

The essence of the ruling was that Beduin, for the first time, could attack land confiscations as improper, confiscations made by the state in the 1950s and 1960s and endorsed by the courts in the 1980s.

The Arakib Beduin’s lawyer, Michael Sfard, accused the state of twisting “19th-century Ottoman land law” and of relying “heavily on the built-in cultural gap between European and Middle Eastern notions of property and living spaces,” which blocked the Beduin tribes from even raising in court legal arguments against the “draconian, massive confiscation of their lands in the 1950s.”

The Beduin said that earlier determinations validating confiscations were made on the basis of anecdotal evidence from European explorers passing through the area, who did not understand that the Beduin were living on the land even as they did not develop it in the modern sense.

But the decision only permitted, for the first time, attacking the confiscations. It did not declare whether those specific attacks would overcome confiscations. Only weeks later, a three-justice panel of the court struck down the Arakib Beduin’s hopes by declaring the confiscations valid even with the new evidence presented.

The Arakib Beduin attacked the confiscations and claimed valid legal title, claiming a continuous presence in the area dating back to at least the mid-19th century, and that the state had forcibly evicted them from the land in 1951.

At the heart of the case was whether the Beduin could prove they had private land rights to the disputed plots, despite a lack of formal land-title deeds that would have shown their names registered in the Ottoman land registry.

Even worse for other Beduin, the High Court seemed to broadly reject the Beduin narrative that Beduin obtained legally recognized land rights prior to Israel’s establishment.

The early-May Arakib ruling supported a lower court ruling rejecting a study by Prof. Oren Yiftachel of Ben-Gurion University, which had supported the Beduin’s narrative, as less scientific than a more comprehensive study by Hebrew University’s Prof. Ruth Kark, Havatzelet Yahel and Seth J. Frantzman.

According to Kark’s study, the Beduin are not indigenous to the Negev and most migrated there from a variety of locations such as Arabia, Transjordan, Sinai and Egypt no earlier than Napoleon’s invasion of Egypt and Palestine in 1798-1799.

Further, she said her data, including aerial photos, maps, surveys and travel logs, showed there was no settlement at Arakib before the British Mandate, undermining Beduin claims to having lived on the land and have legal title.

The court said there was no international law support for the Beduin.

It wrote that the only authority cited by the Beduins were the 2007 UN General Assembly’s Declaration on the rights of Indigenous Peoples and a pro-indigenous peoples’ rights 1992 Australia court ruling, which the court said were not binding and did not reflect codified customary international law.

Separately, the High Court also came down hard against the Umm el-Hiran Beduin in early May. The latter had claimed they did not squat on the land they now live on. Rather, they said they were transferred to the area in 1956 by IDF order when they asked the IDF to find them a spot after losing their original land following the War of Independence. (Ari Briggs of Regavim says that the Umm el-Hiran Beduin actually ended up settling near where the IDF directed them to go, but beyond the boundaries of the IDF directive.) Part of the court debate, which ultimately went for the state and against the Beduin, was whether they were sent to the land on a temporary basis, which eventually extended for decades, but never got legal title, or whether the order to move there and the extended stay constituted legal title.

The court said that even after decades, the Beduin were never given legal title and could not claim to have adversely taken title since they settled there with the state’s agreement.

Supreme Court Vice President Elyakim Rubinstein wrote, with agreement from Justice Neal Hendel: “This is not expulsion and not expropriation, but the proposed evacuation involves various proposals of moving, construction, compensation and the possibility of homes, whether in the town of Hura where most of the residents of the illegal villages involved will be moved, or in the community of Hiran, which is to be built.”

Hura is a very large nearby Beduin village with over 17,000 residents.

Hiran is the planned new city in the area for which the state wants to move Um-al-Hiran, since the land where Um-al-Hiran sits is part of where Hiran is due to be built.

While Justice Daphen Baraz-Erez supported many legal conclusions of Rubinstein, she took the state to task for its eviction process, for offering insufficient compensation to the Beduins and even implied that the state should consider letting the Um-al-Hiran Beduins stay.

What happens now that the Beduin have lost or nearly lost a decade of fights in court? (Technically, Umm el-Hiran has one last redo-appeal to the High Court, but the chances of success are close to zero.) Every few years, the government issues a big-picture plan, usually to legalize some Beduin villages, while forcing some to move into more defined and circumscribed areas to make more room for new southern cities.

There have been the 2008 Goldberg Commission, the 2011 Prawer-Begin Plan, which was dropped in 2013; and most recently, Agriculture Minister Uri Ariel tried to resubmit the Prawer-Begin Plan, only to pull it indefinitely in June following heavy Beduin and Israeli-Arab protests.

The latest plans had suggested a compromise of legalizing 63 percent of Beduin villages, which the state emphasizes is substantial, but the Beduin say that even at that level, 40,000 Beduin would be forced to move from the other 37 percent of the land (Regavim disputes those numbers).

In debating the fairness of these plans and the offers to the Beduin, the state and Regavim would say it’s only a few kilometers’ move from Umm el-Hiran to the Beduin village of Hura, and that the Beduin would be getting more land in the South than Jews, by relative percentage terms.

The Beduin would respond that the new plots offered to them are still smaller than what they have now and that there is plenty of open land in the Negev for new Jewish settlements without needing to evict them.

Looking over Umm el-Hiran from a nearby hilltop, it did not seem just or to make any sense that the state would need to move such a small village to build new cities in such a vast desert. Viscerally, such a forced move seemed morally problematic.

But returning to the view from the air, the state’s predicament is better understood, since there are hundreds of Umm el-Hirans.

Yet the other point that the flyover makes clear is that all of the court decisions and demolitions in the world will not win this battle for the state. There simply are too many villages, and the Negev is too vast. Even if the state has far greater power than the Beduin on paper, there is no way the state can stop the Beduin from rebuilding in unauthorized spots, if the Beduin are perpetually committed to returning.

So if there is any solution, it will end up being a compromise, which it seems still has not been arrived at.

Regavim would emphasize that any compromise much ensure that the Beduins follow zoning and other laws going forward, and while it is critical of how the state recognizing a large clump of unrecognized Beduin villages, would likely ultimately accept even undesirable compromises to end the decades of delay in building up the South.

It would add the claim, supported by some news reports, that where the state has not prevented illegal Beduin villages, sometimes the indirect result has been wider lawlessness in the form of pirate gas stations and some Beduyins pressing the National Road Company or its subcontractors to pay them for security, essentially a euphemism for committing not to damage the roads.

This does not remotely represent all Beduins, but it is as burning an issue for Regavim when it comes to enforcing the law as a broader theme, as self-determination and not having the Negev Judaized is to the Beduins.

There is a saying that beyond a certain point in the South, there is neither God nor the law.

Whether this lawlessness is epitomized by the state heavy-handedly forcing the Beduin to move or by the Beduin refusing to move when legally ordered to do so is in the eye of the beholder.


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