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Israel Supreme Court: Bedouin have no indigenous rights

A recent Supreme Court ruling refusing to recognize Bedouin land rights sets a legal precedent for the state to endlessly appropriate Palestinian lands. 

A Bedouin man confronts Israeli policemen during the destruction of the unrecognized village of Al-Araqib (photo: Activestills)

A Bedouin man confronts Israeli policemen during the destruction of the unrecognized village of Al-Araqib (photo: Activestills)

Israel’s Supreme Court made a significant ruling this week, setting a precedent for the state to approve the expropriation of Palestinian land in future cases, specifically inside Israel.

The court rejected a five-year old petition filed by the Al Uqbi family to recognize its ownership over a large plot of land in Israel’s Negev/Naqab Desert. The land also includes the unrecognized village Al Arakib, which is still in its own legal battle for recognition from the stae.

According to Attorney Michael Sfard, who represented the Ul Uqbi family, no one is arguing with the fact that the family has been living in this area for centuries. However, the ruling does not recognize the family’s ownership of the land since it defines it as consisting of stone houses and written deeds as proof of ownership. Bedouin have traditionally lived in tent structures and their ownership was passed down orally, such that they do not fit that definition. As Sfard points out, the judgement uses “cultural bias to uphold Western notions of what a ‘human settlement’ is.”

The petition called for recognition of ownership over the family’s historical lands, from which they were expelled in the 1950s. The ruling, which went largely un-reported in the Israeli media, effectively means the state does not recognize Bedouin rights to the land, clearing the path for it to continue to legalize the expropriation of Palestinian lands, whether inside Israel or in the West Bank.

The decision not only fails to acknowledge the distinct historical and cultural heritage of this Bedouin community, it is also a major contradiction: while Bedouin property rights are not recognized, the Zionist purchase of land from Bedouin before the state was established is. If the court recognizes land deals made with the Bedouin, it necessarily implies that it recognizes their ownership. But according to Sfard, the court simply disregarded this fact. Israeli officials often claim that the country was established through the legitimate purchase of land from Arabs, not through forceful expropriation.

“The bottom line: hundreds of thousands of Bedouin have lived for centuries in the Negev, but as the court astonishingly said, the Bedouin way of life does not create any legal rights in the lands they lived on and cultivated for generations,” Michael Sfard says.

While the village of Al Arakib’s legal struggle with the Be’er Sheva court is still ongoing, the Supreme Court decision indicates it will be nearly impossible for the village to win any legal claims to their land. The court also dismissed all arguments based on international law as it relates to indigenous people, since these claims have yet to become binding under international law.

The land belonging to the unrecognized village of Al Arakib, like countless plots of land in the Negev, was expropriated under the Land Appropriation Law of 1953. The law allowed the state to easily expropriate land for purposes of “development, settlement and security,” with a few ludicrous stipulations: that the land was not in its owner’s possession on April 1, 1952, and that the state use the land for purposes of development, settlement or security, or at least that it needs the land for those purposes. In reality, the state dispossessed the village residents of their land, and has not once used their land for any purpose.

As part of the legal process that has become more and more common in the Negev over recent years, when Al Arakib’s residents filed a land ownership claim in the 1970s, the southern district prosecutor filed a counter-claim on the same plot of land, claiming it was actually state land. While the courts verified ownership, the village’s residents attempted to challenge the expropriation itself. This strategy has failed.

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    1. Weiss

      This racist decision is exactly why the International community will force the coming Palestinian state upon Israel whether the Fascists like it or not…

      THIS Jew will NOT be SILENT!!!

      Reply to Comment
      • Gustav

        “THIS Jew will NOT be SILENT!!!”

        What makes you a “Jew”, Weiss?

        Are you a religious Jew? I doubt it. I doubt that you even believe in God, am I right?

        Are you a Jew because you are a nationalist? Clearly not or you would not exhibit such virulent hatred towards the nation state of the Jewish people, Israel.

        So again Weiss, what makes you a Jew? Stop lying about who you really are, you little hater!

        Reply to Comment
        • Ben

          A Jew is a political position? A political affiliation? A specific species of nationalism? You’ve been demanding all this time The Nation State of the Right Wing Jewish Supremacists? Oh. Why didn’t you say so? No, we don’t agree to that.

          Reply to Comment
    2. Pedro X

      Mairav might have thought to read the judgment of the court before writing her rant.

      Judge Sarah Dovrat found that the Bedouin failed to prove their claim that they had cultivated the lands in question since the beginning of the 19th century (1800 C.E. forward). The judge rejected the poor quality evidence of the Bedouin’s experts. The Judge criticized the petitioner’s expert for not having read his sources before appearing in court. The sources cited did not state what he claimed them to have stated.

      Meanwhile the state presented overwhelming evidence there was no Bedouin settlement in this area as claimed. Arial photographs showed the area had not been cultivated as claimed. The British survey of 1871-77 failed to show any Bedouin settlement as claimed. The Bedouin tried to claim that they were natives of the land when it was conquered by the Ottomans and thus entitled to the land ans “Native sons”. However this claim also failed because by the Bedouin’s own evidence they arrived in the Negev after the Ottomans had conquered the area. Evidence was presented that also showed that neither the Ottomans nor the Mandate government recognized any Bedouin ownership of the land. Further the Bedouin were shown to be aware of the Ottoman rule of having to register land claims and they never did under the Ottomans, the British or Israeli land titles registries.

      The judge struck down the Bedouin’s claim to generate rights out of nothing. Now as the court said Israel can remove the illegal settlements encroaching on state land.

      Reply to Comment
    3. Ben

      Judge Sarah Dovrat’s decision was a foregone conclusion. And it was a political not a legal decision. This was not some clinical, technical legal decision, this was rather a predictable ratification of a Zionist narrative of history by a Zionist judge, selectively paying attention to Zionist narratives and interpretations of history pushed by Ruth Kerk and selectively ignoring a post-Zionist and Bedouin narrative and interpretation pushed by Michael Sfard. Tom Segev explains:

      http://www.haaretz.com/weekend/week-s-end/the-making-of-history-who-owns-this-country-1.300956

      The legal evidence, the technical legal details in my opinion are mere props or devices. It is simply bogus to say the Zionist side “proved” something legally the post-Zionist side did not. Selective attention to one or the other side’s ‘evidence’ will yield the decision wanted. Dovrat knew that any decision for the Bedouin, even a compromise, would set a precedent threatening the Zionist status quo. She payed selective attention to the Zionist side, whose evidence was no more “solid” than the post-Zionist side, the Bedouin side. She could very easily have payed attention to both sides’ narratives and evidence and crafted a compromise decision that reflected history fairly and was about sharing not having it all but there was absolutely no way an Israeli judge was going to do that. What is bogus is to say this was a legal as opposed to a political decision. See also:

      http://electronicintifada.net/content/bedouins-legal-fight-threatens-jewish-state/9015

      “Uqbi has kept a large store of documents passed on to him, showing that his father cultivated crops on the land and paid regular tithes on the profits to the Ottoman and British authorities.
      He also has a copy of the treaty signed in 1948 between 16 Bedouin tribes, including the Uqbi, and the new Israeli army, pledging loyalty in return for a guarantee that they could continue living on their lands.
      Yiftachel said the legal battles of the Bedouin should be compared to those waged by other indigenous peoples in countries such as Australia, Canada, South Africa, India and Brazil. “Like them, they are fighting for recognition of ‘native title,’” he said.”

      Reply to Comment
      • Whiplash

        Ben you might have missed it. The supreme court of Israeli suggested that the parties try negotiations again. These particular Bedouin were not prepared to accept what Israel was offering them despite other Bedouin having accepted generous Israeli terms. The Supreme Court then ruled in the state’s favor upholding the judgment of Judge Sarah Dovrat of the Beersheba Court. The Supreme Court also heavily criticized the evidence of the Bedouin expert. He is an extract of a report from Israel Hayom:

        “Rights out of nothing

        Something happened in the legal world this week. The High Court of Justice rejected out of hand a petition filed by the Bedouin, backed by leftist organizations, about the village of Al-Arakib in the Negev desert. The place has become a symbol and a flashpoint for everything having to do with state lands. The Bedouin claim ownership of land in the northern Negev on the basis of “ancient rights.” The petitioners spoke of “historical land” from which they had been banished, and argued that the Aloukabi clan had worked those lands at the beginning of the 19th century.

        Professor Oren Yiftachel lent his assistance to the plaintiffs by serving as an expert witness, arguing that there had been an ancient Bedouin settlement in the area of Al-Arakib, but all his arguments were rejected. Both the district and the High Court of Justice criticized him severely. Judge Sarah Dovrat wrote: “It became clear that he [Yiftachel] was relying on sources and quoting them without having taken the trouble to read them.” In the High Court ruling, Justice Esther Hayut wrote: “An analysis of the evidence reveals that Professor Yiftachel’s argument is not supported by objective perspective.” A Bedouin tribe might have stopped at the place in question during its peregrinations, but this does not prove that there was ever a pre-existing settlement there.”

        Reply to Comment
        • Ben

          Thanks. My take on this is that, again, this reasoning more or less makes the point that the Israeli judges will not use anything but a Zionist colonialist perspective that will not see the family’s ownership of the land since it defines ownership as consisting of fixed stone houses and specific kinds of written deeds and not others as proof of ownership, and refuses to recognize that the Bedouin way of life creates any legal rights in the lands they lived on and cultivated for generations. It is a political process way more than a legal one. It’s a matter of perspective not legal objectivity. The same court pays great respect to the idea that a theory about ones ancestors based on a biological theory of maternal descent and a religious theory about “God” having given it to them allows one to up and move, not in 1945 Europe or Iraq but in 2015 Los Angeles or 2115 Los Angeles to East Jerusalem and displace people who do not have the same biological genetic lineage and are therefore privy not to a law of return but a reverse less openly declared but still real law of expulsion but whose own people lived there for generations. As with all overvalued religious ideas it all makes perfect “sense” to the group “God” is so favoring. That too is a political process and a real estate process dressed up as a legal process backed by underlying feelings of entitlement based on race and religion. It would be more understandable if it were used to inform fair compromises and not overwhelming favoritism and outright theft. And this in the 21st Century not the 1400s. We are dealing here with narrative logic not objective causal scientific reasoning. We are dealing with understanding not explanation. I have to add that ever since I saw a bunch of political hacks named Scalia, Thomas et al. masquerading as The Supremes hand a presidential election to a Republican who lost the popular vote and for the flimsiest of “legal” reasons I lost a lot of respect for the idea of so called legal objectivity by hallowed and impartial justices. Ditto with the Corporations are People (And They Have More Rights than You and Me) decision. They’re a bunch of hacks posing as judges.

          Reply to Comment
    4. You left out presence through internal displacement. “Time immemorial” claims (which by definition go back to custom without written artifacts like deeds) are relative buttresses for present position. “You say you have lived here for 10 years; my grandfather lived here until you forced him out.” Whether the older claim will be honored depended on use. “All your grandfather did is have a picnic on the land once a year! I have cultivated, hunted on it for 10 years; my child knows only this land as home.” The one issue you do not feel the need to address is how these Bedouin came to settle where they are. Presumably, they lived somewhere in what is now Israel proper. Now, maybe they sold the land they didn’t/couldn’t own, went to Vegas, then came back and squatted somewhere else to make another financial fix, selling more land they didn’t own; or maybe they were shunted aside during the Independence War or some derivative event. But the latter doesn’t matter, because displacement is a condition of personnel sin. The not so hidden issue here is displacement through war, direct or domino event. The courts don’t want to touch that, for the Bedouin, being Israeli citizens, would establish a potential far reaching precedent if winning.

      You say the Bedouin made no effort to register their claim even though everything from Ottoman to British law demanded they do. Registration in the 1800’s could come back and bite. Once you and your land are known to the powerful outside, you might find yourself ousted for yet some other reason. For most of the time there was no electronic communication let alone storage. Documents disappeared (surely you have stories of this), events never moved up the chain of authority. No TV crew descended to right wrongs. Bedouin would often want to avoid the whole greater system, for it portended, for them, arbitrary power. Your use of a developed world Western filter is satisfying but not realistic at all. But you need to be able to say prior use does not make a deed. (The British, by the way, would recognize verbal custom claims–when that was all there was. They really didn’t care all that much about the local fights; they just wanted the fights quelled. So pick a claim based on what the local British agent gathers and be done with it.)

      What is interesting in all of this is that State land has no deeds, only use rights, which the State at least as Knesset can override, setting their own compensation. So denied use right is being used to deny prior deed which thereby incorporates the land into the State where as well no deed will ever exist. Which is the preferred legal structure in Israel. To admit use rights as deed prior to the State (even if the State forced the use via displacement) would be to admit a new veto on State control of land. Zionism is a corporate ideology, so it is not at all surprising that the courts would turn back use challenges to State ownership.

      This will work until you run out of foreigners. Then you will begin attacking yourselves. You have no idea of what rights are for at all.

      Reply to Comment
      • oops. The above are thoughts on Pedro’s comment, above. An automatic reload occurred during the writing. Starting again, I forgot to place the material under Pedro’s comment as reply. Sorry.

        Reply to Comment
        • BigCat

          “What is interesting in all of this is that State land has no deeds, only use rights, which the State at least as Knesset can override, setting their own compensation. So denied use right is being used to deny prior deed which thereby incorporates the land into the State where as well no deed will ever exist. Which is the preferred legal structure in Israel. To admit use rights as deed prior to the State (even if the State forced the use via displacement) would be to admit a new veto on State control of land. Zionism is a corporate ideology, so it is not at all surprising that the courts would turn back use challenges to State ownership.”

          O.M.G! We have another madman, folks, and his name is Greg Pollock! Did you forget to take your meds today, Greg? What kind of incomprehensible mambadunga-mambadunga-rant is this, Greg? Mamamia, I am literarily falling off my chair laughing out loud rolling on the ground! Oh dear……these anti-Israel creatures are really messed-up in the head.

          Reply to Comment
          • What you have done here, BigCat, is deep primate, phrasing things as a group ouster. Great endorphins in that, BC, especially for the young. Meds, BC, meds.

            Most land is Israel is State owned; the strategy made a lot of sense for a country birthed in war with large numbers of incoming immigrants; State ownership provides more ready security and stability–the land will not move off via transactions to and then by third parties. Zionism is a group ideology. A class is to be protected. It’s not surprising at all that State ownership is preferred in jurisprudence. What individual ownership does is force a jurisprudence of property rights which, under Israeli history, is a wrench in the wheels. Individual property rights slow any State down. From what I’ve seen, Israeli law tends to avoid that outcome (but not always). So, given your call for group laughter, let me quote the last two sentences of my piece, which you saw no reason to paste:

            “This will work until you run out of foreigners. Then you will begin attacking yourselves. You have no idea of what rights are for at all.”

            These Bedouin are foreign, other, culturally primitive, a rallying cry for the group to mob what is not them. Eventually such people will be used up. Then where does this group rallying turn? Rights are a stop on future action as well as present action. By asserting a present right, you assert what you will become.

            And that, really, even after the construction money, after the sell of “unused” land, is what this is about.

            Reply to Comment
      • Pedro X

        Greg says “Registration in the 1800′s could come back and bite.”

        Well, what about registration in the 1970s? It comes back to bite your and this Bedouin tribe’s arguments. In the 1970s the Israeli state allowed Bedouin without land deeds to register in the Israeli Tabu lands registration system. They had to show that they cultivated the land claimed. Obviously, Ul Uqbi family and al-Arakib could not show that they cultivated or used the lands claimed. The aerial photographs, surveys, censuses, Ottoman, British and Israeli records all show that Ul Uqbi and his family did not cultivate the lands as they claimed. As the judge said they tried to manufacture claims out of nothing.

        Reply to Comment
        • That I could not know. It would not surprise me if registration was still avoided. Native Americans would often avoid State process it they could. I suspect you have experienced a tinge of avoidance when it comes to the State; and if you have family stories of immigration, perhaps more so. But, in any case, the primary question is where they immediately came from (from where they are at present) and why they left that place. The 1970s. After Yom Kippur 73? Dislocation in that land is long standing.

          First the 1800s, now 1970s. The attitude here is finding necessary cause for removal. Not aboriginal. No archaeological evidence (used elsewhere for removal or denial of known prior land use). Money will be made through the coming construction. Natural reasons must be found. Then there is the question of how registration agencies greeted claims in the 70s; how would dislocation after 73 be treated? I don’t know. You probably don’t either.

          I cannot know all the answers. But US history is full of manipulated rules to get power dominant wishes done. Usually, that manipulation plods ahead until the payoffs dwindle. Perhaps you know what it means to be on the wrong side of that process too. During and after the US Civil War, the Supreme Court decided cases in such a way that Hispanic land claims in California were denied–often in favor of European immigrant squatters, there use right trumping prior claim. At the end of the day, the “right people” owned the land. This process is old. The question really is when Israel decides to stop its own use of it. Someday it will. As the payoffs dwindle.

          My view is that without strong cause present use right should be honored. The Israeli Court’s view seem to be that without strong prior right present will not be honored. Which is a bit strange in a country birthed about 48. Or maybe not so strange.

          Reply to Comment
          • Ben

            Greg this is a strong, sophisticated statement of the uses and misuses of the law and you place things in very insightful historical and economic context. Explains a lot. Thank you.

            Reply to Comment
          • Pedro X

            Where did they come from? The Bedouin fought with the Arabs trying to destroy the emerging Israeli state in 1948. In the aftermath of the war the approximately 21,000 Bedouin have now increased to 210,000. In the aftermath of 1948 11,000 lived in the Negev. In the 1950s Israel moved thousands of Bedouin to make room for an airport. The Bedouin accepted compensation and moved to other Bedouin or Arab towns.

            Between the 1960s and 1980s Israel built 7 Bedouin towns and cities. They have added more since then. Many Bedouin have accepted Israel’s generous offers to settle them. The Jewish Virtual Library reports that 120,000 Bedouin already live in towns and cities built for them. Another 60,000 live in localities which Israel will legalize their housing. 30,000 live in unrecognized villages whom Israel has offered to relocate short distances with full compensation and a free house. 12,000 of these
            Bedouin have filed 2900 land claims.

            Israel leases land in the Negev, including JNF land, to Bedouin farmers and herders at discount rates. It also provides grazing areas for Bedouin herds outside the Negev for more than half the year.

            Israel has tried to resolve the Bedouin claims over the last 45 years or so. Yet some claims have not been able to settled. So they end up in court, where the proponent of the claim has to prove their claim according to law on a balance of probabilities. In this case, about which this article is written, the Bedouin claimants failed to prove their claim. They were given a chance to prove their claims, by presenting their evidence and challenging the evidence of the state. Both the lower and Appeal court criticized the expert of the Bedouin claimant and the evidence presented for failing to raise an objective argument in favor of their claim.

            As Judge Sarah Dovrat concluded the Bedouin claimant was trying to make a right out of nothing. No court can tolerate that.

            Reply to Comment
          • Ben

            “nothing” as defined by Sarah Dovrat and a court system in which “nothing” was a foregone conclusion That is Greg’s point and Mairav’s point.

            Reply to Comment
          • What are you resolving here? The whole point of private property rights is that the State faces high bar to implement its desires. In all of Israel’s existence, only relocation towns for Arabs have been founded; not one new Arab town absent relocation. You begin this reply by implicitly holding these Bedouin traitors via 1948; yet they are Israeli citizens. Whatever their grandfathers have done is done. An airport was built so Bedouin removed. Perhaps part of the reason for building the airport there was to clean up the Bedouin.

            There is nothing unique to Israel in this. It’s probably happened in 3/4 or more of all UN States. As President, Thomas Jefferson ordered his Interior Secretary to have Native Americans east of the Mississippi either take up US style farming or be relocated on the western bank. Most, having never farmed that way, living a life of hunting and band mobility, were forced across; and most of these were not indigenous to the eastern bank but forced there by the white push westward. At the time, the only reason for forcing this move was to release more land, contiguous to the already settled, for settlement in turn, to be sold by those surveying it–surveying granted ownership to sell. It got ugly on both sides. Native Americans “going white,” becoming farmers, were sometimes assassinated. Many “whites” did not want the natives to farm; they wanted the land for selling. What is driving the “Bedouin resolution,” let’s not say “Bedouin solution,” are, I think, two things: removal of a non Israeli artifact, which appears as a social/legal incoherence; and, just as in the US, profit from the sale of, here, housing. This drive to import people for settlement is fueled by profit as well as national and religious ideology.

            You cannot say how the actual Bedouin on the land got there. Were they relocated direct or pushed by circumstance? We know that this land is already deemed State land via the 1953 Land Appropriation Law, and we know that one of the two conditions of that law, that the appropriated land be used has not, for decades, been satisfied. What disappoints in the Court’s decision is failure to reign the State in by the terms of the very 53 Law. They could have said that decades of developmental neglect or evident security need void this taking by the law. This would have checked State hubris, been compatible with the Knesset passing the 53 law, and created a right via State failure to follow the very law it used. It would have created, only in this instance, something akin to a just compensation right in the US 5th Amendment. A right is a bar (of varying heights) to State action, not an indulgence by the State to recognize as it sees fit. “Generous” and “just” are not necessarily the same; just sometimes must allow the refusal of offer. Ruling as I have suggested would have enhanced the autonomy of the Court while limiting damage to the State. It would have begun a line of thought where citizens are more than subjects of the State. Israel is sorely in need of a rights mechanism, a written constitution. But so long as the focus of the State remains on inconvenient citizens this dilemma can be kicked down the road at the inconvenient’s, now suddenly convenient, expense.

            It’s not about how nice you think you have been to previous Bedouin. Where do these actual Bedouin come from? How did they get to where they are now? Why did the State wait decades before development? Why is resident use right decried in law? Only by taking a particularist approach to these actual Bedouin can the law advance beyond corporate decision to populate and relocate. These Bedouin are being lost through a mixture of corporatist thought and cultural distaste. And, just as in the US, at the end of the day some will be richer.

            Reply to Comment
          • Pedro X

            The Bedouin actually come from the Hejaz region of Arabia. They are not indigenous to the Negev. They had no property rights without title registration. The land laws which they were subject under the Ottomans and British is very similar to the law they are subject to under Israeli law. The Bedouin knew what the 1858 Land laws required concerning registration. The Israelis without requirement to prove a deed having been registered gave the Bedouin in the 1970s an opportunity to obtain title by showing occupation or cultivation of land. Many did. Some did not. If they could not prove cultivation and occupation in the 1970s, 40 years later they are not likely to be any more successful.

            Reply to Comment
          • “gave the Bedouin in the 1970s an opportunity to obtain title by showing occupation or cultivation of land. Many did. Some did not. If they could not prove cultivation and occupation in the 1970s, 40 years later they are not likely to be any more successful.”

            Again, what happened after the 73 war? Was this opportunity given after 73, and exactly where were these Bedouin, not all Bedouin, at that time? I don’t know, nor I suspect do you. I could ask other such questions, but it’s futile, for, on both sides, ideologies answers, not facts, largely because there are no facts.

            Really this case should have turned on a quite different point. At least two 972 reports have said that this land was declared State decades ago under the 1953 law, yet not developed or used in all that time. But the 1953 law says the land must be used for development or security. While one may try to dodge under a “security” blanket, I think the State failed the very law of appropriation it employed by letting the land fallow of State use for so long. Thus the State comes to court defenseless, having misused the very law it presents as shield. The Court panel should have turned the State away and said that, absent any other contender, present use defines “ownership.” Saying the Bedouin aren’t native to the Negev, or that they had ample time to register covers over the point that the State failed to meet its own legal requirements. If, however, the State was engaged in court cases over the land all this time one could say it was unable to carry out its intent of use. I suspect the fallow nature of appropriations in this area is, however, uncorrelated with court contention.

            If this contention is ever to stop, actual individual circumstance must trump group logic. Israel was based on an ideology of group salvation. But this ideology is incompatible with the disposition of justice for non-Jewish Israeli citizens (witness the Admissions Committee Law). It is not a matter of condemning the past, but acknowledging that that past has played out. This could begin by simply noting that the State never met one of the two conditions of the 1953 law. Such a decision would go no further than this circumstance. But if the logic is to clear habitation to plant other people there, which is exactly what the State has said it want to do, one remains in the world of the founding. You have to grow past that, and your Declaration of Independence says you should.

            Reply to Comment
          • Ben

            Post of the month! Maybe the year! Mr. Greg Pollock. This and your post two days ago. “…It is not a matter of condemning the past, but acknowledging that that past has played out. This could begin by simply noting that the State never met one of the two conditions of the 1953 law….” Are you listening, Ginger Eis? This post captures both the letter and the spirit of the law that would move us forward not backwards in this awful situation. Lawyers such as this ought to be sitting on the Supreme Court of Israel. The whole country and its neighbors and their people would be better for it.

            Reply to Comment
          • I’m combining thoughts to both Ben and Pedro here.

            Ben, thanks for the appreciation. Change has to happen within Israel, even if under external pressure, and the law will have to be involved. The Apartheid South African Parliament voted for a constitutional convention of all races, and the resulting product was submitted to mostly white voters for ratification. Without that, the political transfer would have been much worse. I don’t know what will happen in Israel, but there are paths in law which in themselves may open other paths. Watch the ongoing Holot line of cases. While the Court has twice dramatically ordered the closing of a refugee prison (neither time honored by the State), it has done so on conservative grounds. The Court has merely said that the prison violates prior Knesset passed law on incarceration with trial and dignity (“Basic Law”), and the Knesset must pass laws coherent with previous laws so passed. In the Court’s reasoning, the Knesset could repeal this Basic Law and then imprison refugees. But the Knesset seems unable to do that–so far. The same inconsistency is evident in the present Knesset’s decision to create more ministries than allowed for under a law passed just last year, by the previous Knesset. That law had an internal override which said that more ministries could be created with 70 votes, but the coalition can muster only 61. So the present expansion is inconsistent with past Knesset law on its own terms. This case has great potential, if the Court hears it, for it is technical, not nationalistic (involving “infiltrators” or Bedouin), yet reaches exactly the same point as in the ongoing conflict over Holot. The Court, in Holot, is only being an arbitrator for legal coherence of all laws passed by the Knesset. This is hardly against Knesset Supremacy, but the ruling right nationalists will give the Court not even this role. They, rather, want a Knesset Supremacy where each act of the moment is sovereign, an omnipotence of each Knesset act. Coherent law cannot survive this view.

            The 1953 Land Law plays out similarly, or could so. If the State declared land State land but did not use it, then under the 53 law the State has failed the very instrument it has tried to employ. This should, in my view, nullify the State act. It doesn’t matter if the Bedouin have some kind of use title; the State has no instrument to acquire the land by failing that law’s own terms. The Court could have taken the weak position “this attempt doesn’t work, try again,” which is hardly granting use title to these Bedouin. That would have been a weak win for the Bedouin, but it would open new possibilities.

            I do not myself uphold Knesset Supremacy in either form. I do not want a Knesset which can simply repeal protections as it likes. The Declaration of Independence has a “full equality in social and political rights” clause which it promised would be inserted in any written constitution, promising a call for a constitutional convention shortly. A Constituent Assembly was duly called, but that Assembly converted itself into the Knesset, thereby ignoring its mandate at election. A constitutional assembly is called in part to limit legislative power. By converting itself into the Knesset, the Assembly made its original role impossible, and the three cases I’ve noted, Holot, the number of ministers, and use of the 1953 law, are derive from that act. Since the Assembly failed its mission to produce a constitution preserving full equality of social and political rights, that promise in the written Declaration becomes a constitutional document on its own, enforceable by the Court. I believe the Court should declare this so, but it will not do so given the strong nationalism surrounding the Knesset until it is backed into a corner. The present limiting “legal coherence” fight over Holot, etc. might become the first step towards empowering the Declaration–if the national right continues to press the Court to back off from its actually rather weak views. An autonomous Court will have to be created by Justices in reaction to the Knesset Supremacy of the national right; it would be better for the national right to back off, long term, but they are incapable of doing that, wanting the fist at every moment.

            *

            Pedro, you claim there is nothing to appropriate because there was never any title because no application for title occurred. It doesn’t matter either way. The 1953 law has two stipulations: no use by a certain date in 1952, and use by the State after it asserts control. It doesn’t say use by the State only if there was some kind of title which was not used in 1952. The State had to use the land for development or security, but has done nothing for decades–a very weak condition, actually, why assume control and then do nothing with it (a good question). So the State fails the terms of 53 and cannot now act through that law. This doesn’t mean the Knesset could not pass a law today for physical appropriation, although I have some doubts if the national right could word the thing to survive challenge.

            The reason why the 53 law doesn’t say land can be used by the State only if there was some kind of title yet it was not used in 1952 is that, in 1953, present use was an admissible plea in law, Ottoman or Israeli. Even if in the 1970s a campaign to register use title was undertook, it doesn’t change the injunction of the State to use the land it acquires under the 1953 law. And this it just didn’t do for decades. It doesn’t matter whether Israel made use title registration easy or difficult in the 1970s. The stipulation that the State use what is acquired was not thereby obviated. The Bedouins win by default of the State. Giving them use right is another matter. What I advocate is not a solid win for these Bedouin at all. But it would reign in State hubris in the use of law.

            If you want the law every present as potential weapon, you can’t always get what you want of the moment from it. The solution I offer here would provide final victory neither to the State or Bedouin. But it would change the way the States acts in the future, give the Bedouin more legal room, and enhance the autonomy of the Court, albeit in a limited way, as I noted above.

            Reply to Comment
          • Pedro X

            All Bedouin in Israel were given the right. Bedouin in Syria, Lebanon, Iraq, Saudi Arabia, Egypt, and Timbuktu were not. There are some 2,900 claims.

            The problem is that the Bedouin were subject to Ottoman law which required land registration. Without registration, these lands were state lands. The British also promulgated a similar law requiring registration in 1921. Without registration those lands remained state lands. The Israeli 1953 land acquisition law specifically states that the law does not affect the status of state owned land.

            If the Bedouin in 1953 did not hold title they were squatting on state land which required no expropriation by the state to belong to the state in which case the state had no obligation to develop the land. The previous British and Ottoman land laws removed the ability of Bedouin to acquire land by prescription.

            In the 1970s Israel did acknowledge that in the past Bedouin settled on state land and cultivated it. Israel allowed Bedouin who could advance such claims to register it in acknowledgment of past use and occupation. Many Bedouin accepted the Israeli offer. Some are still advancing claims and have the right to prove their claims in court. They will have to prove actual use of the land. Claims made up of nothing will fail, as they should.

            Reply to Comment
    5. The Trespasser

      Bedouins are not indigenous and as such are not entitled to indigenous rights. Plain and simple.

      Reply to Comment
      • alan tattersall

        So… Lets get this right. The Bedouin do not have legal right to the land because it was never registered to them. But Israelis who ‘bought’ the land from the Bedouin have their rights affirmed. How can a court declare that you can sell something you can’t own?

        Reply to Comment
        • Ben

          Yes, rather glaring discrepancy isn’t it?

          Reply to Comment
    6. Josef

      Like your’s father’s you are false !

      Reply to Comment
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