|Israeli Supreme Court offers a conciliation process to achieve a fair solution on Bedouin lands case; state must answer in two weeks whether it agrees to conciliation on Araqib lands.|
At the end of long deliberation at the Supreme Court in Jerusalem, the court suggested the holding of a conciliation process in order to reach a fair solution on the question of Bedouin land ownership at Al Araqib , northwest of Beersheba.
The judges expressed their displeasure with the extremely long delay in dealing with claims filed by the Bedouins over fifty years ago, and suggested that negotiations be conducted for six months between the al-Ukbi tribes people and the state authorities, in order to achieve “a fair solution`.
Attorney Michael Sfard, representing the al-Ukbis, proposed to establish a process of conciliation. The judges were favorably inclined to this proposal, but state representatives sought a month`s extension before answering. Ultimately, the court ruled that the state must present its position regarding conciliation within two weeks.
The judges, led by Elyakim Rubinstein along with Esther Hayut and Salim Jubran, showed a clear tendency to bring about a mutually-agreed compromise - rather than either endorse or reject the ruling of Judge Sarah Dovrat of the Be`er Sheva District Court , who had ruled against the Ukbis and completely rejected their ownership claim.
The Judges’ tendency to promote negotiations, as well as their support for the conciliation idea proposed by the Ukbis’ counsel, suggest that the judges regard the issue as complex, many-faceted, not to be considered by purely judicial criteria; such consideration might justify rethinking what is due to the Bedouins, and move away from the tight-fisted policies hitherto implemented by the Israel Lands Administration. It should be noted that in previous cases where negotiations were conducted between the state authorities and Bedouin residents of the Negev , the proposals offered by the state consisted of no more than monetary compensations (usually low) and in rare cases a small piece of land (but not the original land from which the Bedouin had been dispossessed , but land in another location determined arbitrarily by the state) . It would be difficult to define any such proposals as a “Fair Solution`.
Members of the al-Ukbi Tribe had been expelled in 1951 from their homes and lands at Al Araqib, by the military government at the time ruling over the Arab citizens of Israel . Simultaneously with the expulsion, the then Government of Israel unilaterally expropriated the land and declared it to be state property, without even bothering to inform the previous owners of having taken that course.
Nuri al-Ukbi, a veteran Bedouin rights activist who is one of the appellants, said : `With the injustice done to us in 1951 never being redressed, we hope and expect to find justice at the Supreme Court. The way the court’s deliberations were going seems positive, and we accepted the court’s proposal for conciliation. In that way, we can present all the facts which substantiate our case. At the very least I hope we would be able to establish our residence on the site of our family home in Al-Araqib, the house which served the State of Israel as a polling station in the first Knesset elections in 1949 , and where a Tribal Court was active with accreditation from the State of Israel, with the national flag and state emblem displayed when it was sitting. Such a measure would ameliorate our pain, and it would be to the benefit of the state as well to solve the problem of 400 people and provide them with shelter. It would be a proof that redressing injustice is possible even after the passage of many years, an injustice which the state authorities caused us without the slightest shred of justification.`
During the court deliberations, historical and judicial issues were raised far beyond the specific case of the Araqib lands. The parties discussed the judicial status of the Negev lands under the Ottoman Empire and the British Mandate and the situation on the ground in the Negev during those periods – as all those issues carry weighty implications for the present status of the lands and of ownership over them. Comparisons were also made to similar situations in other countries, such as Australia`s attitudes to the Aborigines.
Prof. Oren Yiftah`el of Ben Gurion University, who had given an expert testimony at the original hearing in the District Court , said : ` After years of enormous effort in research we obtained - through archives, aerial photos and the testimonies of tribes people – solid evidence backing the land rights of Bedouins in the northern Negev . This is the first time that such materials are presented at the Supreme Court. Though there is as yet no ruling, I hope that presentation of these materials would in itself make it clear to the judges that sixty years of Bedouin dispossession in general - and the Ukbis’ dispossession in particular – were based on a judicial and historical falsehood . A conciliation process might lead to a reasonable outcome, and we will continue as much as possible to help the Bedouins assert their rights.`
Nuri al –Ukbi +972-(0)54-5465556
Attorney Michael Sfard : +972-(0)54-4713930 ,
Prof. Oren Yiftah`el +972-(0)54-6775512
Detailed report and background:
Be`er Sheva District Court
The case was heard in the Beersheba District Court for six years, as part of the land settlement process declared by the Government of Israel in the early 1970s. The government has later frozen the settlement proceedings, and in 2006 the al-Ukbi Tribe appealed on its own accord to begin settlement proceedings.
During the hearing of evidence it was also revealed that the state expropriated the land in 1951, without notifying the previous land possessors, who had been evicted to a military zone some 20 kilometers east of Araqib.
Judge Sara Dovrat rejected the tribe`s claim and accepted the state’s contention that the land should be classified as `mewat`. `Mewat` (literally `Dead Land`) is a concept derived from Ottoman law and referring to land which is uncultivated, uninhabited, unassigned, unregistered and situated further than 2.5 kilometers from an inhabited place. During the 1970s the Israeli Ministry of Justice articulated what is known as `The Dead Negev Doctrine`, under which the whole Negev region was classified as `mewat`, and hence as state lands.
The only way for Bedouins to prove land ownership under this doctrine is either to prove the existence of a village or cultivation in 1858, or to show that ownership was registered at the British Land Registry Office no later than 1921, the beginning of the British Mandate. In most cases, it is virtually impossible for Bedouins to prove either. Since the Supreme Court accepted The Dead Negev Doctrine in the precedent-setting al-Hawashlah Case brought in 1984, there were numerous other rulings where Bedouin land claims were rejected on the same basis. Also in the present case, Judge Dovrat followed the same doctrine, stating that the al-Ukbis had not been able to meet the above strict criteria and that therefore the tribe`s ancestral lands in both Araqib and Zhiliqa should be registered as state lands.
Dovrat`s decision, which holds 37 pages, ignored the testimonies of 11 Bedouins who had resided in Araqib, and who spoke of the rich history of residence, construction, cultivation and daily life. The judge relied mainly on legal precedents, and chose to ignore the presentation of three expert witnesses, most notably Prof. Oren Yiftachel of Ben-Gurion University, who submitted hundreds of pages of evidence to the court, demonstrating systematically the existence of settlement and agriculture, and hence of property rights, in the two tribal areas.
Dovrat`s ruling preferred instead to rely on the expert opinion of Prof. Ruth Kark, who asserted on behalf of the state that the Bedouins were “invaders” who had entered the Negev by force and that until 1921 they were nomadic, having no settled abodes, nor any land system or permanent agriculture. Dovrat accepted Kark`s expert opinion, despite the cross examination having exposed it as replete with distortions and contradictions. Most dramatically, Kark had been forced during the cross-examination conducted by Adv. Sfard to admit `changing her mind` since the publication of her last book on the subject in 2002. That book describes widespread Bedouin land ownership and farming in the region, including Araqib, and hence Bedouin land ownership.
Dovrat`s ruling, following the Dead Negev Doctrine and the 1984 al-Hawashlah Precedent, followed earlier rulings which placed an impossible burden of proof on the Bedouins. It therefore continued to deny not only the specific al-Ukbis land rights, but any grain of property rights for the Bedouins in the entire Negev.
The appeal was presented by Att. Michael Sfard, supported by Att. Adar Grayevsky, Prof. Oren Yiftachel and Dr. Sandi Kedar. Sfard opened by comparing the Israeli Dead Negev Doctrine with the `Terra Nullius` doctrine, which in the past had been used to declare Australia to be judicially “An Empty Land” and deny all land ownership rights to Australian Aborigines; in recent decades this doctrine was sharply criticized and is no longer regarded as valid by the Australian judicial system. The appellants’ councel noted the urgent need for the Israeli judiciary to act likewise and overturn the Dead Negev Docrine , on judicial, moral and international grounds.
Based on the research findings of Yiftachel, Amara and Kedar, Sfard then began to challenge the state`s doctrine step by step, focusing on its questionable and distorted assumptions, such as: the lack of Ottoman rule over the Bedouins in the 19th Century; the dynamic (rather than frozen) nature of the Ottoman Land Code and hence the irrelevance of the situation in 1858; the content and legal standing of the British 1921 Mewat Ordinance; and the nature of the land settlement procedure launched by the British, for which Israel is obliged to legal continuity.
The appeal also outlined a vast amount of evidence showing that both the Ottoman and the British regimes recognized the Bedouin land and settlement system. The Bedouins operated with a great deal of sanctioned autonomy, based on an infrastructure of tribal courts in and around Beersheba.
Sfard then presented geographical evidence of the Northern Negev as having been cultivated and settled (Bedouin style) already before the British Mandate times, and the development of the indigenous land system. Sfard spent considerable time on the vast land purchases conducted in Ottoman and British times by Zionist organizations and Jewish individuals in the Negev, land duly purchased from its Bedouin owners and on which 11 thriving kibbutzim were built and exist to the present day. These sales necessitated the registration of Bedouin land by the Ottoman and the British, thereby debunking clearly the DND.
The appeal also stressed that contrary to state assertions on the validity of the Mewat Ordinance, neither the Ottomans nor the British have ever appropriated even one acre of land on the basis of this legislation.
Therefore, the appeal showed that the DND not only distorts the legal setup and denies rights to the most marginalized groups, it is also based on shaky factual grounds. This was related to the deep contradictions in the testimony given by prof. Kark at the District court, which functioned as the main factual foundation for the claim that the land was `dead`.
The response by the two state attorneys, Moshe Golan and Havatzelet Yahel, was rather disjointed. They steered away from matters of principle and focused on details. They argued vehemently that the Bedouins have never formally been granted any kind of autonomy from the Ottomans and British, and hence Bedouin customary land law had no validity. They described in detail the state doctrine as being, not oppressive but rather generous - since it “allocated to the nomadic Bedouins lands for which they had no right`.
The state attorneys also spent considerable time on arguing that the Bedouins are not indigenous to the Negev, since they are “descended from 18th Century invaders”. Their non-indigenous status was also proven by their asserting private land titles rather than a collective one. Also, the state claimed that The UN declaration on Indigenous Peoples does not constitute “Customary International Law” and hence is not binding upon Israel.
Despite repeated requests by the judges, the state attorneys could not produce an explanation to the widespread purchases and registration of land from Bedouin owners during the Ottoman and British time. They also had no answer to the existence of tribal courts which demonstrate the relevance of Bedouin customary land law, and had no explanation to the claims that the Mewat Ordinance was never used by the British in the Negev.
The Judges` Response:
During the presentations, the judges intervened only rarely, focusing on procedural matters such as the validity of the government expropriating the land in question `for development purposes` and then leaving it still empty after sixty years; the authority of the tribal courts; the power of the Ottoman and British in the Negev, and the details of the Bedouin land system. Judge Hayut initially voiced the opinion that the 1951 expropriation overrules all other considerations, but later appears to have changed her mind.
Towards the end the judges, began to voice their disquiet at the state`s foot dragging of the Bedouin claims, more than forty years after their submission, and sixty years after the Bedouin eviction. They proposed, and later strongly recommended, a conciliation process that could reach an acceptable solution for the painful problem. The al-Ukbis agreed, but the state requested a month to consider, and was awarded a fortnight by the court. If the state declines, the judges hinted, they would not rule on the case, but allocate a time period for further negotiation between the sides to reach a compromise.
In overview, it is notable that for the first time, to the best of our knowledge, the Supreme Court was exposed and listened attentively to the vast evidence in favor of Bedouin land rights, and against the dispossession dictated by the DND. It was also noteworthy that the Court expressed criticism of state`s handling of the land settlement process, and did not accept a-priori the state`s arguments, which is based on this court`s previous rulings. The court also pressed for a new way to reach `a fair solution` indicating that previous solutions were not fair. Although the interim decision does not provide a significant breakthrough, it is possible that some cracks were open for the first time in the Dead Negev Doctrine.
Beyond legalities, there is hope that the long sufferings of the evicted al-Ukbis tribe, which continues to live in appalling conditions in an unrecognized village, may be nearing a respectable solution.