THE EFFICACY OF THE ISRAELI LEGAL SYSTEM IN PROTECTING AND FULFILLING NAQAB BEDOUIN LAND RIGHTS

VICTOR NASSER REGO

A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS (LLM)

GRADUATE PROGRAM IN LAW OSGOODE HALL YORK UNIVERSITY, TORONTO, ONTARIO

MARCH 2009 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition

395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada

Your file Votre reference ISBN: 978-0-494-51584-6 Our file Notre reference ISBN: 978-0-494-51584-6

NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats.

The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission.

In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these.

While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada ABSTRACT

The thesis is a critical legal study of Israeli land law and policy as it has been applied to the Palestinian Arab Bedouin citizens of the Naqab (Negev) since 1948 until present. Through research, case studies, interviews and discussions the thesis gauges the efficacy of using the Israeli legal system to protect and fulfill Naqab Bedouin land rights. The thesis shows that although the legal system has achieved civil liberties successes, it has not been able to deliver, and at times in a colonial fashion has worked against, justice on the bigger issue of land rights for indigenous Palestinian citizens. The thesis calls for law to not be blind obedience to formal, impersonal rules or to the directives of ethnocratic government, but to allow for a humanistic immersion in its texts, one where the dignity of 'the other' is recognised, providing the space for affirmative action, intergenerational justice and restitution.

IV ACKNOWLEDGEMENTS

To Katie, for her support and love. And for her courage in agreeing to leave Palestine to weather Toronto's winter for a year, accompanying me on this journey.

Warm thanks to my supervisor, Susan for her support and encouragement. Much thanks also to Bruce and Brian of my Supervisory Committee for their thorough reading of this work and their insightful comments.

To the al-Sane' family, for opening their doors and their hearts and housing a stranger for a year. In spite of it all, you share the little land that you have. Your example is a lesson to all.

v Table of Contents

Abstract iv

Acknowledgements v

Introduction 1

Chapter 1 1 History of the Palestinian Arab Bedouin of the Naqab 11 1.1 History in Palestine 11 1.2 Relationship with the Land and Historical Claims 15 1.3 The Nakba of 1948 and its Repercussions 20 1.4 Present Reality in Development Towns and Unrecognised Villages 28 1.5 Arab Bedouin as Intrinsic Part of the Palestinian Arab Minority 32

Chapter 2 2 Zionism: A Critical History of the Movement and the Ideology 35 2.1 The Zionist Movement in Praxis - The Pogroms and Three Major Aliyot 35 2.2 Zionism and the Palestinian Land Crisis 46 2.3 Is Zionism Colonialism? 51

Chapter 3 3 The Israeli Legal System, the Naqab Bedouin and Land 71 3.1 Contextual History of the Israeli Legal System 71 3.2 Overview of specific legislation, policies and administrative bodies that bear on the land rights of the Naqab Bedouin 81 3.3 Naqab Bedouin Land Rights Case Studies and the Role of the Supreme Court 114

Chapter 4 4 Land Rights of the Naqab Bedouin in International Human Rights Law 136 4.1 Land Rights of the Naqab Bedouin 136 4.2 Transnational Advocacy and the Interaction between Israel and the International Human Rights System 156 4.3 Interpreting Human Rights Law through Social Movements Theory 168

Chapter 5 5 Concluding Thoughts 178 5.1 Injustice and Law's Formal Rationality 178 vi 5.2 Reconceptualising Land Rights de legferenda 191 5.3 Law as Congealed Politics 195 5.4 Conclusion 200

Bibliography 205

Vll Introduction

Land; from where humanity is born and to where it returns; for the land nurtures us, cradles us, walks with us, and embraces us in our graves. The land makes us feel grounded, connected, and at home. It unites us with some people and separates us from others. The land is our home and is our family. The land is us. But the land is not just ours. It is ours to share, to respect, and live off. For traditional Palestinian Bedouin society of the Naqab, contact with the land was direct and their lives were guided by nature. They looked to the sky for directions, and the ground to tell the time in the shadows of beings.1 This is not orientalist arabo-philia,2 but rather a lamentation that as I sit at my desk in Toronto writing this, I can barely see the sky, much less the land.

The reality in the Naqab is different today than what it was during the first half of the 20th century, and the characterizations ascribed to the land have changed. The Palestinian

Bedouin relationship to the land can no longer be understood as pure and direct. Rather, it is a detached relationship marked by coercion, strangulation, and violence. The violence is evident in how qualifiers have been transformed into 'occupied' land, 'expropriated' land, land 'reclaimed' and land 'redeemed'. These are descriptions of the land that do not naturally belong and force an expunction of land's truth.

1 Isaak Diqs, A Bedouin Boyhood (New York: Praeger, 1969) [Diqs, A Bedouin Boyhood]. 2 See Chapter 2 for a discussion on how Orientalist arabo-philia facilitated Zionism's goal to settle the land. 1 In the diy winter of 2006 in the Naqab, in the development town of Laqiya, during my work for a women's NGO engaged in socioeconomic empowerment and development of Naqab

Bedouin women, I had a revelation. The organization's education director, Hisin, a German photographer friend of mine, Felix, and I took a little stroll in the sand. My colleague wanted to show me a Laqiya I had not seen before. As we walked down the rock strewn dirt paths, and combed past the dust clouds, Hisin began to narrate. She shared with us the story of how her father, employed in a nearby kibbutz for decades, and whose income essentially supported the entire family, was recently laid off and replaced by a Jewish worker. The kibbutz cited poor work performance, but Hisin and her father think different; that because he was an Arab Bedouin, it was preferable and easy for him to be replaced.

Our knees and hamstrings were sent to work as we ascended the hill that was our final destination. Once there, we were blessed with a panorama of Laqiya, and saw scattered around us the Bedouin development town of Hura, and a number of Bedouin unrecognised villages. The view was not of this world. The clouds danced softly in the sky, the air breathed tender freshness, and it was as if land's truth had been restored in its whisperings to our consciousness.

We were able to feel the sky, the winds, and the earth only because our senses were not occupied with the dust clouds, unpaved roads, tin shack stores, and the sifting sewage smells that greeted us at the entrance to Laqiya. How different was this reality on high from where we stood only ten minutes ago. And how did it all turn so u$$

2 From the hill, we could also see a number of Jewish towns in the perimeter, ahead of us the

Jewish town of Meitar, to our right, Omer, and in the distant rear, Lehavim. In referring to the Jewish towns, my colleague called them 'settlements'. The word brought to mind illegality associated with the Jewish settlements in the Occupied Palestinian Territory of the

West Bank and those tiiat existed in Gaza, and so I thought it a harsh choice of word and an unwarranted condemnation for Jewish towns within Israel. Today, I realize what she meant.

She meant that these towns did not exist before die people of Laqiya did; the people of

Laqiya came before. In Naqab Bedouin history, these towns were recently settled, essentially by immigrant Jews, and so were settlements in the political sense of the word.

However, what was interesting to learn later on, and being there on the hill that day brought text to life, was reading how the Jewish towns, or settlements, in the Naqab can also be seen as serving the purpose of nitzpimor a panopticon i.e. ordered surveillance to keep an eye out and control the Bedouin communities,3 and how they also exist to breakup the contiguity of

Bedouin villages, and to prevent individual Bedouin locale expansion.4

The principal aim of the thesis is to gauge the efficacy of using the Israeli legal system to respect, protect, promote and fulfill the land rights of the Naqab Bedouin. In doing so, the

3 Ronen Shamir, "Suspended in Space: Bedouins under the Law of Israel" (1996) 30: 2 Law and Society Review at 234 [Shamir, "Suspended in Space"], Sally Engle Merry, "Law and Colonialism" (1991) 25:4 Law and Society Review at 912 [Engle Merry, "Law and Colonialism"], Michel Foucault, Discipline and Punish (trans. A. Sheridan) (New York: Pantheon, 1977). 4 Human Rights Watch, Off the Map: Land and Housing Rights Violations in Israel's Unrecognized Bedouin Villages (2008) at 43-44 [HRW, Off the Map}. 3 thesis contributes to the existing scholarly literature on the civil rights movement in Israel in the works of Daphne Barak-Erez, Pnina Lahav, Asher Maoz, and Allen Zysblat. The thesis, in looking at the legal system's ability to protect the right to property for the Naqab Bedouin, will indicate the growth, or otherwise, of civil liberties in this arena. A work of particular focus will be Yifat Holzman-Gazit's Lard Expropriation inlsrael,5 in which she analyses the role of the Supreme Court in land expropriation cases and in general civil rights cases, offering political and national-strategic rationales for judicial reasoning. The thesis hopes to contribute to the scholarship on the legal mechanisms of the Israeli land regime in the works of the Israeli legal scholars, Alexandre (Sandy) Kedar and Geremy Forman, who explore the history of the land regime during the British Mandatory period, during the formative years from 1948-1960, and the nature of the land regime until present. Other work on the Israeli land regime that will be called upon for the thesis is that of the Israeli critical geography scholar, Oren Yiftachel, who asserts that Israel's land regime can be characterized as ethnocratic, allocating land on an ethnonational basis while representing itself as being democratic.6 The thesis will explore if the Naqab Bedouin reality is an indicator of the veracity of this claim.

As the events leading up to the formation of the State in 1948 contribute to, influence, shape, and define the nature of the State and its legal system, the thesis will also elaborate on the dialogues surrounding Zionism, looking particularly at how the movement that focused

5 Yifat Holzman-Gazit, Land Expropriation in Israel: Law, Culture, and Society (Hampshire, England: Ashgate Publishing Limited, 2007) [Holzman-Gazit, Land Expropriation}. Oren Yiftachel, Ethnocracy: land and identity politics in Israel/Palestine (Philadelphia: University of Pennsylvania Press, 2006) [Yiftachel, Ethnocracy]. 4 on the establishment of a Jewish national home in Palestine defined its relationship with the land and with its native inhabitants, and in particular the Bedouin of the Naqab. In this manner, the work of Bernard Avishai, Noah Lucas, Albert Memmi, Maxime Rodinson,

Gershon Shafir, Ronen Shamir, Edward Sa'id, Arieh Tartakower, and Elia Zureikwill be engaged with to clarify the nature of the colonial settlement of the land pre-1948 to better understand the underpinnings of the current land system.

As the thesis explicates on international conceptions and standards of the right to land, so then it intends to contribute to scholarship on international human rights law. It will explore the interaction between the Israeli legal system and the international legal system as pertains to land rights, and will elaborate on alternative understandings of the emancipatory framework offered by international human rights law. In that, it will draw on and contribute to the work of social movements theory and in particular to the work of international legal scholar Balakrishnan Rajagopal's International Lawfrom Below! The thesis will look to international human rights norms and standards as a benchmark to the fulfillment of land rights in the Naqab Bedouin context, but concurrently will identify holes in the human rights corpus that need to be patched if substantive fulfillment of land rights of the Naqab Bedouin is sought.

There are definitional particularities that I would like to expound on before I go further.

When I talk about 'land rights' I understand it as a meta-composite right, encompassing

Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (UK: Cambridge University Press, 2003) [Rajagopal, International Law from Below]. 5 rights that are in themselves composite in nature. Therefore, the right to land can be seen as including the right to adequate housing, the right to property and die right to security of tenure. These rights encompass the integrative rights such as the right to health and the right to water.8 There are also those rights accorded to minority groups and indigenous peoples that apply in the Palestinian Bedouin context.

When I use the term 'social justice', I am referring to what the law should work towards, not a formal, rational adherence to impersonal rules, but to real people. Akhough instances of oppression and injustice are better hints to what justice is, we can use for our initial inquiry the definition that justice is the ethical turn to the other, in acknowledging a moral responsibility to the other.9

Today, the Naqab Bedouin community number roughly 170,000. 90,000 live in the seven

'development towns' of Rahat, 'Afara, Tel Sab'a, Kseifa, Segev Shalom, Laqiya, and Hura11 and approximately 80,000 live in 36 unrecognised villages, and nine recently recognised ones.11 Between 1968 and the 1980s, the seven development towns for Arab Bedouin were

Thanks to Prof. Craig M. Scott, Professor at Osgoode Hall Law School, York University for sharing with me this meta-composite characterisation of the right to land in conversations on the place of the Naqab Bedouin in international human rights law. A fairly comprehensive analysis on the right to health and the right to water in the Naqab can be found in Centre on Housing Rights and Evictions, Submission to the Goldberg Committee regarding violations of the human right to water and sanitation in the unrecognized villages of the Negev/Naqab (February 2008). Costas Douzinas and Adam Gearey, CriticalJurisprudence: The Political Philosophy of Justice (Oxford: Hart Publishing, 2005) at 27, 35-36. Central Bureau of Statistics (CBS), Table Bl: Population in Urban Localities 2006 and Regional Councils 2005, online: http://www.negev.co.il/statis/tables/2001.htm. " Centre on Housing Rights and Evictions (COHRE), Submission to the Goldberg Committee regarding violations of the human right to water and sanitation in the unrecognized villages of the Negev/Naqab (February 2008) at 5 [COHRE, Goldberg Committee], Interview with Hussein Al-Rafai'ah, President of the 6 established in the area of the siyag}2 The legal condition for moving to these towns were to relinquish all prior land claims, with the promise of 'recognition', proper provision of services, and land plots to build homes and businesses. The towns were planned with no community participation and promises made have been broken and the amount of land in the towns is insufficient to enable construction of adequate housing, or to allow orderly expansion and introduction of the necessary range of urban amenities.13 In the 'unrecognised villages', where the other half of the Naqab Bedouin population live, Bedouin citizens are deprived of basic infrastructure - including water, electricity, adequate health care and education, sewage and refuse disposal, access roads, and other general services that a State is obligated to provide its citizens. They also lack local councils and are unable to obtain building permits and so live under constant threat of home demolition.

This thesis aims to gauge the efficacy of using the Israeli legal system to promote and fulfill the land rights of the Naqab Bedouin. Chapter 1 will provide an historical context of the

Naqab Bedouin in Palestine, including explorations of the centrality of land to the Bedouin and their semi-nomadic pastoral way of life. The immediate reality after the War of 1948 will be touched on, as well as an overview provided of the current reality. Chapter 2 will look at the influence of Zionism on the relationship between the Naqab Bedouin and the land. The purpose of this chapter is not to discount the moral validity of the Zionist goal of

Regional Council for the Unrecognised Villages (RCUV), Diyar Al-Naqab (undated), online: http://www.deyaralnagab.com. The siyag is the closed reservation where the Bedouin were forcibly concentrated by the State until the end of the Military Administration in 1966. 13 Harvey Lithwick, An Urban Development Strategy for the Negev's Bedouin Community (Be'er Sheva, Israel: The Center for Bedouin Studies and Development, 2000) at 11 [Lithwick, Urban Development Strategy]. 7 establishing a Jewish national home in Palestine. Rather, it aims to serve the more worthy purpose of looking at Zionism, as implemented since 1881 until the foundation of the State of Israel in 1948, from the standpoint of its victims. Accordingly, the second chapter will serve two chief functions, to provide context by mapping the ideology of the dominant strands of the Zionist movement, with its focus on land and demography, in praxis pre-1948 to understand its persistence in present Israeli political and legal culture; and second, to show the severity of the movement on Palestinians vis-a-vis their relationship to their historical lands, with particular focus on the Naqab Bedouin. The exploration of the question of whether Zionism was 'colonialism' as opposed to being just 'colonial settlement' and whether the orientalist tendencies of the movement hint to one or the other, will help inform the extent of Zionism's effect on the relationship between the Naqab Bedouin and the land.

Chapter 3 will look at what the historical and existing relationship of the legal system has been/is with the Naqab Bedouin pertaining to land issues, and will also delve into its approach to Palestinian citizens in general. Following a critical history of the Israeli legal system, the chapter will address the specific legislation, policies and administrative bodies that bear on Naqab Bedouin land rights. This will be followed by case studies on Naqab

Bedouin land issues and general land rights cases pertaining to Palestinians in Israel that will address the issues of court culture, the legal system's treatment of the Naqab Bedouin and

Palestinians, its approach to land, and the intersection with political considerations. This

analysis will help in identifying the elements of the current system that offer prospects for

8 fulfillment of Naqab Bedouin land rights and the procedural and substantive barriers to such fulfillment.

Chapter 4 will look at international law's norms, standards and principles with regards to land rights, against which Israel's performance will be compared. The analysis will be critical, examining international law's own shortcomings in delivering on the social justice demands of subaltern peoples, as interpreted through social movements theory.

The fifth and final chapter will attempt to condense the thesis' findings into the question, whether, as regards the Naqab Bedouin and their land rights, the Israeli legal system can be seen as one where the 'rule of lav/14 persists, and the Supreme Court can reasonably be trusted with its role as a guardian for civil liberties.15 Does the Israeli legal system, through its legislature, its executive, and its courts, fulfill the social justice demands of the Naqab

Bedouin? Also, how does Weber's understanding of the formal rationality of law factor in all of this? Does law's formal rationality lead to a dehumanization of the legal text so that obedience to individuals becomes obedience to impersonal rules? And what of the idea of law as congealed politics, the claim that law does essentially political work and that political considerations bear heavily on judicial reasoning?

The idea that law should govern society and not the arbitrary will of particular persons. For a non- foundationalist approach to conceptions of the rule of law, see Allan Hutchinson, "The Rule of Law Revisited: Democracy and Courts" in D. Dyzenhaus (ed.), The Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1999) 196-224. 15 Pnina Lahav, "Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy" (1990) 24 Israel Law Review at 252-258, Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California Press, 1997) at 107-112, Holzman-Gazit, Land Expropriation, supra note 5 at 42-44. 9 The ultimate question, and very reasonably the only one that really matters for me, is can law bring us back to land's truth? The truth that the land is us, but that at the same time, the land is not just ours, but it's for us to share, to respect, and live off.

10 1 History of the Palestinian Arab Bedouin of the Naqab

1.1 History in Palestine

The Palestinian Arab Bedouin16 are the indigenous inhabitants of the Naqab17 desert, in today's southern Israel. The Naqab extends over 12,500 sq km, covering around 60% of the land of Israel.18 The Arab Bedouin presence in the Naqab region is generally agreed to have begun as early as prior to the 7th century AD, following migrations from the Arabian

Peninsula.19

Historical scholars assert that there have been, from the 7th century onward, three principal

Bedouin migrations. The first was with rise of Islam in the 7th century and this brought

Bedouin warriors who settled with family, tents and flocks. The second Bedouin migration

The focus of this study is on one population group of the Arab Bedouin in Israel - those living in the Naqab. The Naqab Bedouin are distinct from the Arab Bedouin living in the Galilee in Northern Israel. The reason for the study's focus on the Naqab arises from the particularly perilous reality of Arab Bedouin there and the author's personal and professional ties to the region. For more on the Arab Bedouin of the Galilee, see Ghazi Falah, "Israeli State Policy toward Bedouin Sedentarization in the Negev" (1989) 18:2 Journal of Palestine Studies 71 [Falah, "Sedentarization"], Ghazi Falah, "How Israel Controls the Bedouin in Israel" (1985) Special Issue: The Palestinians in Israel and the Occupied Territories 14:2 Journal of Palestine Studies 35 [Falah, "Bedouin Control"]. 17 Also commonly referred to by its Hebrew name 'Negev'. The origins of the name are from the Semitic word Najab, meaning arid land, and/or from Manqaba meaning 'the path between two mountains'. See Ghazi Falah, The Forgotten Palestinians, Negev Arabs 1906-1986 (Ibdat Center for Arab Heritage: Jerusalem, 1989), Emanuel Marx, Bedouin of the Negev (New York: Praeger, 1967) at 5 [Marx, Negev Bedouin]. 18 'Land of Israel' in this study refers to Israel's pre-1967 borders unless otherwise mentioned - therefore it does not include the Occupied Palestinian Territories of the West Bank, Gaza Strip, and East Jerusalem, the Syrian Golan Heights or the Egyptian Sinai all of which Israel occupied following the June 1967 War. 19 'Aref Abu Rabi'a, "The Bedouin Refugees in the Negev" (1994) 14:6 Refuge at 15 [Abu Rabi'a, 'Aref, "Bedouin Refugees"]. 11 was in the 9th century and brought the Banu Helal and Banu Sulaym tribes who came from the Najd heights, in present day Saudi Arabia. The third migration was in the early sixteenth century, peaking in the 17th century, and brought Bedouin also from the Arabian Peninsula.20

The 1,300 year old history of the Bedouin in the Naqab is only as significant as we give it the license to be. This is what Kimmerling refers to as the "weird argument about who preceded whom" where the Jewish claim to the land over the Palestinian people is based on being here from "time immemorial" which has prompted the counter-claim by Palestinians that they were actually here from time immemorial, hinting to Canaanite roots that preceded the

Jewish tribes conquering the area in 1,200 B.C.21 Assuming the factual integrity of both stories, it certainly is a weird argument to suggest that rightful claim to the land and the subsequent denial of rights of 'the other', in present time, is determined by this narrative of a longer history.

The Arab Bedouin social structure, by ascending hierarchy, can be delineated as the nuclear family ('ailah), the extended family iharndah), the sub-tribe (ruba), the tribe ('ashirah), and the clan (qabilah) and its organisation is patrilineal, patrilocal, and patriarchal, with generally

See Moshe Sharon, "The Political Role of Bedouin in Palestine in the Sixteenth and Seventeenth Centuries" in Moshe Ma'oz (ed.), Studies on Palestine During the Ottoman Period (Jerusalem: The Magnes Press, 1975) at 11-30, 'Aref Al-'Aref, Tarikh Beer al-Saba' wa Qabai 'lih (Jerusalem: n.p., 1934) (Arabic) [Al-'Aref, Tarikh], 'Aref Abu-Rabi'a, A Bedouin Century : education and development among the Negev tribes in the 20th century (New York : Berghahn Books, 2001) at 2-3 [Abu Rabi'a, 'Aref, A Bedouin Century] 21 Baruch Kimmerling, The Invention and Decline oflsraeliness: State, Society and the Military (Berkeley: University of California Press, 2001) at 16-17 [Kimmerling, Decline oflsraeliness]. 12 endogamous and occasionally polygamous22 marriage practices.23 The relevance of the

Bedouin social structure to the sharing of resources of pasture, water, food, and shelter, the issuance of interest-free money loans, and the resolving of disputes through alliances and tribal law focusing on restorative justice cannot be underestimated.24

Pre-1948, the Bedouin of the Naqab "by no means kept a nomadic routine"25 but rather lived a semi-nomadic existence of seasonal migration. According to the 1931 Census of

Palestine, 89.3 % (42,868 persons) derived their livelihood from agriculture, while 10.7%

(5,113 persons) were occupied solely in cattle raising.26 In fact, Falah asserts that the improvement of Palestine's economic infrastructure during the British Mandate period

(1918-1948) indirectly accelerated the process of sedentarization and the establishment of permanent settlements27, so that by the time the Israeli government began to implement its settlement programmes, the Bedouin were already fully sedentarized.28

Under the four century long Ottoman rule in Palestine (1516-1917) and the British Mandate that followed it, Bedouin life was generally unaltered in that the Bedouin were for the most part allowed to live their lives without major interference from the ruling authorities. They

See 'Aref Abu Rabi'a, A Bedouin Century, supra note 20 at 99 where he estimates that over 15% of Bedouin men practice polygamy, having between two to four wives. 'Aref Abu Rabi'a, "Bedouin Refugees", supra note 19. See Marx, Negev Bedouin, supra note 17 at 178-179, Diqs, I., A Bedouin Boyhood, supra note 1 at 35- 43. Marx, Negev Bedouin, supra note 17 at 20. 26 E. Elath, "The Bedouin of the Negev" (1958) 45:2 Royal Central Asian Journal at 129-130. See Falah, "Sedentarization", supra note 16 at 36, Ghazi Falah, The Processes and Pattern of Sedentarization of the Galilee Bedouin, 1880-1982, unpublished PhD thesis (University of Durham, Department of Geography, 1982) at 366 [Falah, Sedentarization 1880-1982]. Falah, "Sedentarization", supra note 16 at 72. 13 were permitted to move freely according to the dictates of water needs or flock pasture. In this manner, their grazing and water rights, as well as their periodic movements, were recognized, accepted and respected by those with whom they came into contact.29

In 1900 the Ottoman government designated Beersheba (Beer Sheva) as the administrative centre for the Naqab Bedouin and purchased land from the al-Muhammidin tribe of the

'Azazmah clan to that effect. By 1948, Beersheba housed a boarding school, attended almost exclusively by the sons of tribal chiefs and had become the administrative, judicial, cultural and religious centre for the Bedouin.30

By the end of the British Mandate in Palestine in 1948, the Naqab Bedouin were made up of

95 tribes, which were part of the great clans of Tarabin, Tiyaha, Dhullam, Jubarat, Hanajira,

'Azazma, Ja halin, Sa'idiyeen and Aheiwat.31 Estimates of the Bedouin population in the

Naqab at the end of the British Mandate lie between 65,000 and 103,000,32 though one often cited is Falah's estimate of 95,566 in 1947.33

29 Kurt Goering, "Israel and the Bedouin of the Negev" (1979) 9:1 Journal of Palestine Studies at 3 [Goering, "Israel and Bedouin Negev"] 30 See A1-'Aref, Tarikh, supra note 20 at 244, Marx, Negev Bedouin, supra note 17 at 34. 31 See Al-'Aref, Tarikh, supra note 20 at 6-87, Marx, Negev Bedouin, supra note 17 at 10-11 32 See 'Aref Abu Rabi'a, A Bedouin Century, supra note 20 at 93, Marx, Negev Bedouin, supra note 17 at 2-34. See also Yacob Shimoni, The Arabs of Palestine (Tel Aviv: 'Am Oved, 1947) at 3-46, Israeli Defence Forces (IDF), The Negev Bedouin (Tel Aviv: Israeli Defence Forces Publisher, 1954) at 1-22, Ahmad Abu Khusa, Beer al-Saba' wal hayah al-Badawiya (Amman: Matabi' al-Mu'assasa al-Sahafiya al-Urdunniya, 1976) at 7-75 (Arabic), Helmut Victor Muhsam, Bedouin of the Negev: Eight Demographic Studies (Jerusalem: Jerusalem Academic Press, 1966). Falah, "Bedouin Control", supra note 16 at 37. Shehada's finding of the British Mandate's census of 1946 of 97,504 correlates with Falah's numbers. See Safa Shehada, "Historical Background" in Ma'an: The Forum of Bedouin Women, The Arab Woman in the Negev: Realities and Challenges (Haifa: Roaa Translations and Publishing, 2005) at 7-8. 14 1.2 Relationship with the Land and Historical Claims

The land shaped die livelihood of the Bedouin in that it enabled them to sustain their traditional life dependant on cattle, herds, rain-fed agriculture, and commerce.34 More importantly, land ownership played a powerful role in constructing meaning and power in the lives of the Bedouin. The land is said to contain the personality of its owner and so cannot be taken away even during long periods of absence. As ownership of land is a means of social stratification, those without it are relegated to an inferior position in society.35

The land and its features were used to demarcate fixed, legitimate sovereign borders between the tribes (established following long tribal internecine conflict and struggles with the government). The rivers, wells, hills and mountains served as boundaries to the agricultural and pastoral lands of the Bedouin, which in turn shaped the economy and social structure of the Bedouin.36

Morad al-Sane', a Palestinian Bedouin from the town of Laqiya, and lawyer with Adalah -

Legal Center for Arab Minority Rights in Israel, notes that land was central to Bedouin conceptions of honour and identity, and also served as a source of survival and an indication of power. Land to the Bedouin, according to al-Sane', is a significant source of power as it

34 Yosef Ben-David, "The Negev Bedouins: Land Conflict and Proposal for Solution" (1997), 61 Karka 45- 54 (Hebrew) [Ben-David, "Negev Bedouin: Solution Proposal"]. 35 Shamir, "Suspended in Space", supra note 3 at 235, Gideon Kersel, Yosef Ben-David, & Halil Abu Rabi'a, "Transformations in Possession of Land by Negev Bedouin in the Last One Hundred Years: A Tribal Perspective" (1991) 33 Ha'Mizrach Ha'Hadash 39 (Hebrew). 36 See Al-'Aref, Tarikh, supra note 20. 15 sustains income through agricultural and pastoral pursuits, it provides housing for the tribe, and in being a tangible expression of security, it becomes central to the community's sense of self and dignity.37

The comparative legal scholar, Patrick Glenn offers insights on the chthonic legal tradition in his book, Legzl Traditions of the World.3* Chthonic peoples include the Bedouin, though more so prior to the urbanization, modernization and sedentarization processes' that unnaturally accelerated after 1948.39 Chthonic people are those that live in close harmony with the earth.40 Both chthonic law and use of land resonate with Bedouin practice and so serve as important preparatory understandings to the thesis that will develop. Although there is great variation in the traditions of chthonic peoples like the Inuit, the Bedouin, and southern Polynesians, there are constants.41 Constants include the centrality of orality in their custom, practice and law,42 as well as the collective and communal enjoyment of land with no formal concept of property crystallizing this relationship between people and the soil they lived and worked on.43 In addition, like traditional Bedouin society, community matters were decided on by elders, and their practices focused on collective rights for the good of the

Morad Al-Sane', Land Dispute between Bedouins and the State of Israel: Problems and Ideas for a Solution (2006), Unpublished paper. On file with author. 38 Patrick, H. Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 3d. ed. (Oxford, Toronto: Oxford University Press, 2007) [Glenn, Legal Traditions]. Goering, "Israel and Bedouin Negev", supra note 29 at 3-4, Falah, "Sedentarization", supra note 16 at 71-91. 40 Glenn, Legal Traditions, supra note 38 at 60. 41 Ibid. 42 Insistence on orality stemmed from the egalitarian nature of the chthonic law tradition. In it, most people share and participate in the repository of law, as opposed to select individuals being sources or scribes of law. Ibid, at 62. 43 Ibid, at 67. 16 community and not so much on the individual.44 Understandings of chthonic land use have entered Western jurisprudential conceptions of property law in Canada and Australia,45 but nevertheless chthonic law stands as a fairly radical alternative to Western law, whether of the common law or civil law tradition.46 As the thesis explores the efficacy of the Israeli legal system's ability to fulfill and promote Naqab Bedouin land rights, it will attempt to show the various expressions of this lack of consciousness of chthonic land use in Israeli land law.

Before the foundation of Israel, the Naqab Bedouin paid little heed to the international or district boundaries set up by the Ottoman Empire and moved freely into the Transjordan region and the Sinai, so much so that you could say there was a single Bedouin population stretching from the Sinai to the Naqab.47

A central aspect of Bedouin social structure determined by land was the tent (khaimth) - whether it was the seasonal tent erected for agricultural purposes, the family tent, the shiq for guests who were lodged, fed and entertained under traditional hospitality practice, or the marriage tent (Undo) where the bride spent three to seven days after marriage in contact only with her husband. It was the tent that was the spatial determinant of the social roles of men and women in family life as men were responsible for ceremonial coffee making and the

44 Ibid, at 68. 45 Ibid, at 67. See Calder v. Attorney General of British Columbia (1973) 34 DLR (3d) 145 at 175, Mabo v. State of Queensland, (1992) 175 CLR 1 (HCA). 4 Glenn, Legal Traditions, supra note 38 at 85. 47 Marx, Negev Bedouin, supra note 17 at 7 17 slaughtering of animals in it while the overall activities in the tent were mostly the responsibility of women.48

Although the Ottoman government issued the Land Code reform in 185849 and the British

Mandate introduced legislation, both legal initiatives aimed at verifying land ownership in the

Naqab dirough a formal registration process, the Naqab area was not surveyed during either period, thereby leaving no reliable records of land classification or registries of land ownership except in and around the town of Beersheba.50 Nevertheless, under both administrations, Naqab land was seen as belonging to the Bedouin given their historical presence on the land and cultivation of it. The Ottomans demonstrated recognition of

Bedouin land rights when they purchased 2,000 dunams from the al-Azazmah tribe in 1900 to establish the town of Beersheba.51 In 1921 the British Mandate published a notice verifying Naqab land as belonging to the Bedouin, pursuant to practice.52 The British

Mandate's Village Statistics of 1945 showed that of a total of 12.5 million dunams of land in the Naqab, 2 million dunams or 15% of the lands were in use by Arabs, while roughly 84% was defined as uncultivable with no defined ownership.53 There was recognition that even

4* lb id. 81-108. Elia T. Zureik, The Palestinians in Israel: A study in internal colonialism (London: Routledge & Kegan Paul, 1979) at 39 [Zureik, Palestinians in Israel]. 50 Falah, "Sedentarization", supra note 16 at 75-76. 51 Penny Maddrell, The Bedouin of the Negev (London: Minority Rights Group, 1990) at 5 [Maddrell, Bedouin of the Negev], Hussein Abu Hussein and Fiona McKay, Access Denied: Palestinian Land Rights in Israel (New York: Zed Books, 2003) at 112-113 [Abu Hussein and McKay, Access Denied]. Roaida al-Sane' and Khuloud al-Asad, "The Right to Housing" in Ma'an: The Forum of Bedouin Women, The Arab Woman in the Negev: Realities and Challenges (Haifa: Roaa Translations and Publishing, 2005) at 19. 53 Anglo-American Committee of Inquiry, A Survey of Palestine (Palestine: Government Printer, 1946) at 257, cited in Abu Hussein and McKay, Access Denied, supra note 51 at 113-114. 18 this uncultivable land was used by Bedouin for grazing purposes at certain times of the

54 year.

As will be explored further in Chapter 3, as no formal registrations of land existed for the majority of the Naqab Bedouin,55 the Israeli authorities classified those lands as vacant and barren lands that fell under the rrmmt category of the Ottoman Land Code.56 The Land

Rights Settlement Ordinance (1969)57 classified all rrmmt lands as state property unless legal title could be produced. However, in contrast to the Israeli government, under the Ottoman government, establishing title to rrmmt land based on possession and ownership was satisfied with fewer restrictions on the landholder. Article 103 of the Ottoman Land Code (OLQ held that anyone who cultivated rrmmt land, even if without the permission of the authorities, would be able to receive a title deed for the land.58 Article 78 of the OLC said

54 Sami Hadawi, Palestine: Loss of a Heritage (San Antonio: Naylor, 1963) at 108-109, cited in Abu Hussein and McKay, Access Denied, supra note 51 at 114. 55 Bedouin had not formally registered their lands so as to avoid paying taxes and being drafted into the army. Shamir, "Suspended in Space", supra note 3 at 241, Abu Hussein and McKay, Access Denied, supra note 51 at 113. 56 Mawat meaning 'dead' is one of the five categories of land under the Ottoman Land Code of 1858 which remained in effect in Israel until the late 1960s. The two requirements to classify land as mawat were that i) the land was so distant from any town or village that a person who used the loudest voice could not be heard there (later interpreted to mean a mile and half away), and ii) land was barren and not held by anyone or set aside for anyone by authorities. See Abraham Granott, The Land System in Palestine (London: Eyre & Spottiswoode, 1952) at 91-93 [Granott, Land System in Palestine'], Abu Hussein and McKay, Access Denied, supra note 51 at 104-137, Shamir, "Suspended in Space", supra note 3 at 238-239. 57 The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283. 58 Granott, Land System in Palestine, supra note 56 at 93, Alexandre (Sandy) Kedar, "The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948-1967," (2001) 33 New York University Journal of International Law and Politics at 935 [Kedar, "Ethnic Geography 48-67"], The Ottoman Land Code (trans. F. Ongley, ed. Horace E. Miller) (London: William Clowes and Sons Limited, 1892) Book II, Ch. II, Art. 103 at 54-55 [The Ottoman Land Code] 19 that even unauthorized rrmmt land use would be registered as rriri9 land, for a person who had possessed the land for a period of 10 years and cultivated for that period.60

The Mandatory government imposed more restrictions on the rrmmt category of land than the Ottomans. The 1921 Mawat Land Ordinance prohibited future unauthorized use of rrmmt lands, and previously revived rrmmt lands had to be registered within two months of the Ordinance's publication to maintain rights of the landholder.61 Understanding that the

Arab population would be unlikely to read the Official Gazette, or move to register their lands within that short time frame, the Mandate government continued to recognise rights to rrmwtbefore 1921, irrespective of when they were registered.62

1.3 The Nakba of 1948 and its Repercussions

Zionism, the Jewish national movement to create a Jewish national home in Palestine, fulfilled its goal of colonial settlement63 with the foundation of the State of Israel in 1948 on

59 Miri land under the Ottoman Land Code (1858) held that formal ownership of the land was in the State, though possession and use rights remained in the hands of the landholder. See Kedar, "Ethnic Geography 48-67", supra note 58 at 933. The Ottoman Land Code, supra note 58 at 41-42. 61 The Mawat Land Ordinance, 1921, 38 Official Gazette 5 (March 1 1921). Frederic M. Goadby and Moses J. Doukhan, The Land Law of Palestine (Tel Aviv: Shoshany's Printing Co., 1935) at 47, Kedar, "Ethnic Geography 48-67", supra note 58 at 936-937, Geremy Forman and Alexandre (Sandy) Kedar, "Colonialism, Colonization, and Land Law in Mandate Palestine: The Zor al- Zarqa and Barrat Qisarya Land Disputes in Historical Perspectives," (2003) 4 Theoretical Inquiries in Law at 515 [Forman and Kedar, "Colonialism in Palestine"]. 63 Jewish immigrants did not see themselves as colonialists but rather returning to the Promised Land after 2,000 years of exile. See Kimmerling, Decline oflsraeliness, supra note 21 at 26. The debate on whether Zionism was colonialism will be discussed in Chapter 2. 20 what Israel calls its Independence Day and on what the Palestinians refer to as al-Naktu (the catastrophe).64

Few Jews lived in the Naqab prior to the establishment of the State in 1948. As Jewish settlers moved into the Northern Naqab settling in kibbutzim, they had a total population of about 3,000 by that year. They purchased land and settled, contrary to the 1939 British "White

Paper's policy and regulations regarding Jewish settlement in Palestine.65 As the Bedouin became suspicious and hostile of this western settler community,66 seeing them as white

European strangers and representatives of the Western colonial world order,67 Bedouins like the Palestinian nationalist Hajj Ibrahim al-Sane' coordinated against selling land to settler

Jews.68

64 A more contextual history clarifying the central role land played - the mythologies surrounding it, the politics of land purchase, and the displacement of the indigenous people from it - in the creation of the State of Israel will be discussed in Chapter 2. 65 Avinoam Meir and Ze'ev Zivan, "Sociocultural Encounters on the Frontier: Jewish Settlers and Bedouin Nomads in the Negev", in Oren Yiftachel and Avinoam Meir (eds.), Ethnic Frontiers and Peripheries: Landscapes of Development and Inequality in Israel (Boulder, Colorado: Westview Press, 1998) at 248 [Meir and Zivan, "Jewish and Bedouin Frontier Encounters"]. The British White Papers were official British government policy directives for Mandate Palestine. So as to prevent the increasing landlessness of Arab peasants, according to the White Paper of 1939, land sales from Arabs to Jews would be prohibited or severely restricted. See Michael J. Cohen, "The British White Paper on Palestine, May 1939. Part II: The Testing of a Policy, 1942-1945" (Sep. 1976) 19:3 The Historical Journal 727-757 [Cohen, "British White Paper on Palestine"], Eric Engel Tuten, "Between Capital and Land: The Jewish National Fund's Finances and Zionist National Land Purchase Priorities in Mandatory Palestine", PhD Thesis (Utah: Department of History: The University of Utah, December 2000) at 42-45 [Tuten, "JNF in Palestine"]. For the text of the White Paper see Royal Institute of International Affairs, Great Britain and Palestine, 1915-1945 (Westport, Connecticut: Hyperion Press, 1976) at 167-174 (Appendix VI). See also Hanina Porat, The Strategic, Political and Economic Status of the Negev as Viewed by the British Government and the British Mandate, Masters Thesis (Be'er Sheva: Department of Middle East Studies, Ben-Gurion University of the Negev, 1985) (Hebrew). 66 Meir and Zivan, "Jewish and Bedouin Frontier Encounters," supra note 65. 67 See Kimmerling, Decline oflsraeliness, supra note 21 at 26. 68 See Sason Bar-Zvi, Bedouin tell about Beersheba (Beersheba: Ben Gurion University of the Negev, Tuviaho Archives, Publication no. 13:1-33, 1977) 1-13 (Hebrew), Ezra Danin and Ya'acov Shimoni, Documents and Portraits from the Arab Gangs Archives, in the Arab Revolt in Palestine (1936-39) 21 The British quit Beersheba on May 14 1948; the Union Jack was lowered and the Palestinian flag was raised over the Saraya House, the governmental house built by the Ottomans. Arab rule lasted only a few months, until Israeli Defense Forces (IDF) captured it on October 21

1948 and subsequently cleansed the city of its Arabs. As a result of the 1948 war, no

Bedouins remained in Beersheba.69

As the Israeli army conquered the Naqab in October of 1948, the majority of the tribes were expelled to Jordan, the Gaza Strip and the Sinai.70 Others who fought the Israelis left because they were afraid of repercussions.71 The situation was unstable until 1953 by which time there were only 11,000 Bedouin left in the Naqab72 and the system of 95 tribes living in the Naqab region was fragmented and disrupted by the 1948 war,73 leaving only remnants of

19 tribes. These Bedouin were forcibly concentrated under the Military Administration

(instituted for Arabs from 1948-1966) in the northeastern Negev in a closed area called a

(Jerusalem: The Magnes Press, The Hebrew University, 1981) (Hebrew) at 114-115,1. Gal-Pe'er, "Beer Sheba and the Bedouin" in Yehuda Gradus and Eliahu Stern (eds.), Beersheba Book (Jerusalem: Keter Publishing House, 1979) (Hebrew) at 284, Emile al-Ghury, Filastin 'abraSittina 'Aman {Palestine Through Sixty Years) (Beirut: Dar al-Nahar li-Nashr, 1972) at 215. 69 'Aref Abu Rabi'a, A Bedouin Century, supra note 20 at 58, Ahmad Abu Khusa, Mausw 'at Qabayil Beer al-Saba' wa- 'Ashairiha al-Raiysiah (Amman: Sherkat al-Sharq al-Awsat le-Teba'a, 1994) (Arabic) at 274- 286 [Abu Khusa, Qabayil Beer al-Saba'], Mustafa Murad al-Dabbagh, Biladuna Filastin (Our Country, Palestine) (Beirut: Dar al-Tali'a, 1991) (Arabic) at 360. 70 See Diqs, A Bedouin Boyhood, supra note 1 5-63, Rosalyn Higgins, "The Middle East vol. I", United Nations Peace Keeping 1946-1967, Documents and Commentary (London: Oxford University Press, 1969) at 147-149, Emanuel Marx and Moshe Sela, "Situation of the Negev's Bedouin", Appendix No. 1. Ben- Mayer's Team for Evacuation and Resettlement of the Bedouin (Tel Aviv: TAHAL, 1980). See Abu Khusa, Qabayil Beer al-Saba', supra note 69 at 7-75, 'Aref Abu Rabi'a, A Bedouin Century, supra note 20 at 93, 'Aref Abu Rabi'a, "Bedouin Refugees", supra note 19 at 15. 'Aref Abu Rabi'a, The Negev Bedouin and Livestock Rearing: Social, Economic and Political Aspects (Oxford: Berg, 1994) at 8, Marx, Negev Bedouin, supra note 17 at 12. 73 Falah, "Bedouin Control", supra note 16 at 38. 22 siyagor 'reservation'. Anyone wanting to enter or leave during this Military Administration had to obtain a permit and even movement between one tribe and another in the reservation required a permit.74

As the Palestinian Bedouin citizen of Israel and geography professor, Ghazi Falah describes, there were three main consequences of the war and the Military Administration imposed on the Bedouin. First, the Bedouin were forced overnight to adjust their living patterns in order to occupy only mat limited area 'granted' to them. In order to maintain tribal identity, the

Bedouin set up housing units close to one another and this high population density lifestyle accelerated the shift from semi-nomadic to urban lifestyle. Second, the Bedouin were evacuated from an area which included some of the best agricultural land in the Naqab, and moved into new territory which received minimal rainfall and was prone to drought. Hence, prospects for the establishment of a Bedouin desert agricultural settlement in the future were limited. Third, within the 'closed area,' two different classes of Bedouin were created. The first group comprised Bedouin whose land was expropriated after they were moved into die new location. This group held state lands on an annual lease, but could not build stone houses on rented land and hence converted their tents into tin shacks and wooden huts. The second group comprised those Bedouin who remained on their lands, notably the tribes of

'Aref Abu Rabi'a, A Bedouin Century, supra note 20 at 93. For a detailed critical study of the Military Administration imposed on Arabs in Israel from 1948-1966 see Sabri Jiryis, The Arabs in Israel (Beirut: The Institute for Palestine Studies, 1968) [Jiryis, Arabs in Israel]. 23 Abu Rabia, Abu Juwei'id, Abu Qureinat, Abu 'Amar, Al-'Asam, Abu Rugagig and El

Huzaiyl.75

The Defence (Emergency) Regulations (1945) adopted from the British Mandatory government consist of 170 articles. These emergency regulations formed the legal basis for the Military Administration and gave, according to Sabri Jiryis, a Palestinian citizen of Israel and lawyer, "extensive and extremely rigorous powers, whose enforcement is highly prejudicial to individual liberty and to an individual's right over his possessions."76 The emergency regulations were met by serious opposition pre-1948 by the Hebrew Lawyers

Union who issued a statement at a conference in February 1946 in Tel Aviv decrying the regulations as being contrary to the fundamental rights of man, and as undermining law and justice and constituting a grave danger to individual freedom and liberty.77 However, following the formation of the State in 1948, the Defence Regulations remained on the statute books78 and were enforced to, among other things, forcibly concentrate the Naqab

Bedouin in a closed military zone or reservation (siya$ under the Military Administration until 1966 and facilitated the expropriation of Naqab Bedouin lands under the Absentees'

Property Law 1950, the Land Acquisition (Validation of Acts and Compensation) Law 1953 and various other provisions in the Emergency Regulations themselves.

Falah, "Bedouin Control", supra note 16 at 38, 40, Falah, Sedentarization 1880-1982, supra note 27 at 8. 76 Jiryis, Arabs in Israel, supra note 74 at 7. 77 Ibid, at 3-5. See also Hapraklit (Journal of the Israeli Bar) (February 1946) at 58-64, Bernard Joseph, British Rule in Palestine (Washington: Public Affairs Press, 1948) at 222. 78 Jiryis, Arabs in Israel, supra note 74 at 5-6. 24 Ghazi Falah asserts that the aim of the Israeli government in the resettlement and land policies of the Military Administration was to break the power and the internal cohesion of the tribes by restricting their movements,79 and the policies were a means for controlling the

Arab Bedouin and their economy, with land and animals usually being the target.80 Jiryis notes that although the Military Government's emergency regulations were in theory enforced through the entire country, it was only enforced in full rigour towards the Arabs.81

Altiioughthe security needs after the 1948 war were pressing for the State and the institution of a Military Government over Arabs can be understood in that light, in the latter years of its application, even official opposition to the Military Government grew as Israeli Members of the Knesset82 called for its abolition because it performed no real security function and was actually seen to have increased the insecurity of the State.83

There were also massacres and Bedouin expulsions after the establishment of the state of

Israel.84 These were carried out against the Bedouin groups both of the Galilee and the

79 Falah, "Bedouin Control", supra note 16 at 41. Ibid, at 42. On the controls and restrictions imposed on Bedouin in the Military Administration, see Kurt Goering, "Israel and the Bedouin of the Negev," (1979) 9:1 Journal of Palestine Studies at 3-20 [Goering, "Israel and Negev Bedouin"], Shlomo Swirski and Yael Hasson, Invisible Citizens: Israel Government Policy Toward the Negev Bedouin (Beer Sheva, Israel: HaMachpil Ltd., 2006) at 95 [Swirski and Hasson, Invisible Citizens']. 1 Jiryis, Arabs in Israel, supra note 74 at 19. The Knesset is the Israeli Parliament. 83 Jiryis, Arabs in Israel, supra note 74 at 26-41. 84 Some from the al-Azazmeh tribe were expelled in 1953-1954 following a massacre of their community by Unit 101 of the Israeli army. See Adnan Amad (ed.), Israeli League for Human and Civil Rights - The Shabak Papers (Beirut: Near East Ecumenical Bureau for Information and Interpretation, no date, but after 1972) at 99, cited in Goering, "Israel and Negev Bedouin", supra note 80 at 5. In 1959, Bedouin were expelled to Egypt and Jordan and were only allowed to return after United Nations intervention. See ibid, at 58, Goering, "Israel and Negev Bedouin", supra note 80 at 5. 25 Naqab, during the military rule period and thereafter.85 In addition, the withholding of identity cards to the Bedouin as late as mid-1952 was a deliberate policy to facilitate their expulsion from the new state.86

Although the legal and administrative means by which the State expropriated land for the settlement of Jewish immigrants will be looked at in detail in Chapter 3 of this study, it will suffice at the moment to lay the groundwork for Israel's land policy vis-a-vis the Arab population. The Israeli geography professor and head of the Alternative Planning department at the Regional Council for the Unrecognised Villages,87 Oren Yiftachel writes in his book, Ethnocracy,88 that there were several major steps undertaken by the State that shaped the character of the land system until the 1990s. There was the expropriation of

Palestinian Arab lands, which caused Palestinians in Israel to lose 40-60% of their land. The

State also legislated that the majority of land in Israel, 93% of it, would be held in perpetuity by the State and Jewish organizations, such as the Development Authority, Israel Lands

Authority (ILA), Jewish National Fund (JNF) and the Jewish Agency QA). The State registered in its name British Mandate lands, amounting to millions of dunams, particularly in the Naqab and Galilee regions. These lands included mtwtt lands, which although in formal ownership of the Mandatory government, allowed holders during the Mandatory and

Falah, "Bedouin Control", supra note 16 at 41. Christina Jones, The Untempered Wind (London: Longmans, 1975) at 218, ibid, at 43. The Regional Council for the Unrecognised Villages (RCUV) is a grassroots, Bedouin-based NGO that works with the unrecognised Bedouin villages of the Naqab. The RCUV represents the community before Israeli policy makers, develops alternative plans for the villages, and works on various community empowerment initiatives. See their online website for more information, www.rcuv.net/ 88 Oren Yiftachel, Ethnocracy: land and identity politics in Israel/Palestine (Philadelphia: University of Pennsylvania Press, 2006) [Yiftachel, Ethnocracy]. 26 Ottoman periods to secure rights to these lands based on ownership, possession and cultivation.89 The State legislated the transfer of land and power to the JNF, making it the biggest owner of agricultural land in Israel. Access to this land is blocked for Arabs according to the JNF's bylaws that allow it to lease its land for Jewish settlement alone.90

Yiftachel asserts that the State is also responsible for the uneven and ethnocratic allocation of land to the Arab population in Israel, where as late as 1995 they were allocated only

0.25% of all public land.91 This leads him to conclude that the Israeli land regime is an

'ethnocratic' one, marked by ethnonational expansion and control, at the same time as it presents itself as being democratic.92

Land, which was central to Bedouin existence in the Naqab, post-1948 suddenly became a government commodity out of their reach. The Naqab Bedouin presence, which had been established on the land for centuries, had overnight become bitterly contested or plain illegal.

In light of the fundamental nature of land to Bedouin livelihood, State negation of Bedouin land claims can reasonably be equated to a negation of Bedouin existence.

89 Alexandre (Sandy) Kedar and Oren Yiftachel, "Land Regime and Social Relations in Israel" in Hernando de Soto and Francis Cheneval (eds.), Swiss Human Rights Book: Realizing Property Rights, Vol.1 (Zurich: Riiffer & rub, 2006) at 138 [Kedar and Yiftachel, "Land Regime"]. See also Section 1.2 for further details on how landholders could establish rights to mawat lands under the British and Ottoman governments. 90 Jewish National Fund, Memorandum of Association of Jewish National Fund, Article 3a, Government Gazette No. 354 (June 10 1954) at 1196. Abu Hussein and McKay, Access Denied, supra note 51 at 149- 153. For a detailed study on the history and praxis of the Jewish National Fund see Walter Lehn and Uri Davis, The Jewish National Fund (Kegan Paul, London, 1988). 91 Kedar and Yiftachel, "Land Regime", supra note 89 at 140. 92 Yiftachel, Ethnocracy, supra note 88 at 137-140. 27 1.4 Present Reality in Development Towns and Unrecognised Villages

Today, the Naqab Bedouin community number roughly 170,000 - 90,000 living in the seven

'development towns' of Rahat, 'Ar'ara, Tel Sab'a, Kseifa, Segev Shalom, Laqiya, and Hura93 and approximately 80,000 living in 36 unrecognised villages, and nine recently recognised

94 ones.

The unrecognised villages, the overwhelming majority of which fall within the siyzg

(reservation) where the majority of Bedouin were forcibly concentrated until 1966, account for roughly half of the Naqab's population and are representative of a grim, and very nearly inhuman, reality. By being 'unrecognised' by the State, their inhabitants are seen as illegal squatters on government land, and these villages do not appear on the official maps of the

State of Israel95 and are not included in the figures of the Central Bureau of Statistics. As a result, 80,000 Bedouin citizens of Israel are deprived of basic infrastructure - including water, electricity, adequate health care and education, sewage and refuse disposal, access roads, and other general services that a State is obligated to provide its citizens. They also lack local councils and are unable to obtain building permits and so live under constant threat of home demolition. This is despite the fact that the majority of their inhabitants were relocated there under the State's Military Administration and/or these lands are their

93 Supra note 10. Supra note 11. See Central Bureau of Statistics (CBS), The Golden Atlas: The Most Comprehensive, Detailed and Updated Atlas in Israel - Map of Israel (Jerusalem, 2000), online: http://gis.cbs.gov.il/shnaton53/all israel.jpg. 28 ancestral property that they have lived on and cultivated for centuries. The situation of the seven development towns is marginally better - but State neglect, discrimination, and human rights violations are all characteristic of the general atmosphere.

The seven development towns were established between 1968 and the 1980s. A legal condition to move into these towns was that die Bedouin had to relinquish all prior land claims. Much is lacking in the development towns. The amount of land made available in the towns is insufficient to enable construction of adequate housing, or to allow orderly expansion and introduction of the necessary range of urban amenities, including infrastructure, social and communal facilities and business enterprises.96 Furthermore, the towns suffer from inadequate or non-existent sewage systems, telecommunications and public services. The state planned these towns - with almost no community participation - to be almost entirely urban, resulting in restricted economic activity, as Arab Bedouin traditionally engaged in agriculture and rearing livestock. All of the planned towns are classified by the state in the lowest ranking of its socio-economic scale97 and are plagued by the highest unemployment levels in Israel, reaching 34.7% in 2003.98 Jewish citizens in the

Naqab, by contrast, are free to choose from urban and agricultural communities, as well as vast 'individual settlements'99 as part of the government's policy to protect state lands. The

Lithwick, Urban Development Strategy, supra note 13 at 11. 97 Central Bureau of Statistics (CBS), Characterization and Ranking of Local Authorities (2002). 98 Swirski and Hasson, Invisible Citizens, supra note 80. 99 'Individual settlements' are generally inhabited by a single Jewish family provided with hundreds, even thousands, of dunams of land for their exclusive use. Adalah - Legal Center for Arab Minority Rights in Israel, Report to the United Nations Economic and Social Council (ECOSOC), UN Doc. E/CN.4/2006/NGO/1241 (March 2006). 29 'Wine Path Plan'100 is a project executed to this effect, as it has provided for 59 individual

Jewish settlements in the Naqab, stretching over 81,000 dunams of land,101 which is more than the land mass granted to the seven Bedouin townships that house 90,000 Bedouin.

The state falls egregiously short of its obligations to protect and promote the health care of residents from the unrecognised villages. For this reason, the infant mortality rate for the residents of the unrecognised villages in 2000 was 14.7 per 1,000 live births - compared to

3.9 per 1,000 births among the Israeli Jewish population. In spite of this, before 1995, there was not a single clinic in the unrecognised villages, an area with one of the highest overall fertility rates102 in the world (9.78 in 1999).103

In the Naqab today, there are 15 elementary schools in the 45 unrecognised and recognised villages, and not a single high school. Furthermore, school facilities and equipment here are either insufficient or plain absent. The problems of curriculum, infrastructure, and staffing have contributed to disastrous results for those in the Bedouin education system. In 2000,

Regional Master Plan TAMAM 4/14/42: Partial District Master Plan for the Southern District - Amendment No. 42, Adalah - Legal Center for Arab Minority Rights in Israel, "Adalah Petitions Supreme Court to Cancel Wine Path Plan for Individual Settlements in the Naqab", 24 Adalah Newsletter (April 2006). 101 Hana Hamdan, "The Policy of Settlement and 'Spatial Judaization' in the Naqab", 11 Adalah Newsletter (March 2005) at 6 [Hamdan, "Spatial Judaization in the Naqab"]. The settlements are Yehudah (1,995 dunams), Tsan Ya'tir (1,459 dunams) and Shoham (2,005 dunams). Office of the Prime Minister, Individual Settlement in Northern & Southern Regions (Jerusalem, 2003). "The overall fertility rate is defined as the anticipated average number of newborns per woman, assuming that all women in the 15-49 age range give birth according to the potential birth rates for women in the population," Ministry of Health Program to Develop Primary HMO Clinics in the Bedouin Dispersal in the Negev, included in Complementary Notification No. 3 on behalf of the state, HCJ 4540/00 (March 25 2002). Physicians for Human Rights (PHR), No Man's Land: Health in the Unrecognised Villages of the Negev (2003) at 60 [PHR, No Man's Land]. 30 only 6.4% of Bedouin students who took the high school exams had matriculation scores that met minimum university requirements for admission. Of the Bedouins that entered university, only a small number have been successful in obtaining an undergraduate or graduate degree.104

The unemployment rate among the Bedouin in the Naqab is estimated at 55% of the total workforce.105 Those Bedouin who are employed are concentrated in low-status, low-paying occupations, such as construction, gardening, service trades, and unskilled industrial labour primarily in Jewish towns, and all of which offer no opportunity for real prospects.106 The family income of the Bedouin in the development towns is about half that of the average family in Beersheba, and generally less than half of the national average. Owing to the

Bedouin's large family size, per capita income falls to 20% of die Israeli average.107

There have been various policy plans implemented by the State to force the Bedouin out of the unrecognised villages and into development towns, including the Sharon Plan, the Wine

Path Plan, and the TAMA Plan 4/14/23 Beersheba Metropolitan Plan, all of which will be discussed in detail in Chapter 3. The most current policy discussions for the Bedouin are being undertaken by die Goldberg Committee, named after the retired Supreme Court judge and State Comptroller, Eliezer Goldberg. The Goldberg Committee is charged with

See Ismael Abu-Saad, "Education as a Tool for Control vs. Development among Indigenous Peoples: The Case of Bedouin Arabs in Israel" (2001) 2:2 Hagar: International Social Science Review 241, Human Rights Watch, Second Class: Discrimination against Palestinian Arab Children in Israel's Schools (2001). Women are the more marginalised, with 80% of Bedouin women from the Naqab being unemployed. 106 See H. Shapira and J. Hellerman, The Bedouin in the Negev: A Social Survey (Herziliya, Israel: Sampling, Consultation and Research Firm, 1998). See Lithwick, Urban Development Strategy, supra note 13 at 15. 31 submitting policy recommendations to the government regarding Bedouin settlement arrangements in the Negev over the course of six months.108 The Naqab Bedouin community has formed an alternative committee that will provide the community's major concerns and issues to the Committee, understanding that the State is not concerned with

Bedouin livelihood given the history of policy plans (Sharon Plan, Wine Path Plan, TAMA

Plan 4/14/23 Beersheba Metropolitan Plan) to force Bedouin off their land and concentrate them in development towns. The alternative committee is a response to the lack of genuine

Naqab Bedouin representation on the Goldberg Committee, and comprehending that the

Committee's six-month long assessment to recommend a 'solution to the Bedouin issue' is an unreasonable goal.109

1.5 Arab Bedouin as Intrinsic Part of the Palestinian Arab Minority

The Arab Bedouin are an intrinsic part of the larger Palestinian Arab minority. The

Palestinian Arab minority citizens of Israel account for roughly 18% of the state's population, and they are the individuals or descendants of those individuals that were not ethnically cleansed or did not flee during the establishment of the State of Israel in 1948.

Today, they are concentrated in three principal areas within Israel - in the Galilee and in 'the

Cabinet Resolution No. 1999, Establishment of an Authority for Bedouin Settlement Arrangements in the Negev, (Unofficial Translation) (July 15 2007). The Committee began its work in January 2008. 109 "Conference for Land Owners Supporting the Establishment of a Popular Committee headed by Retired Judge Abd il-Rahman Al-Zoa'bi", Akhbar al-Naqab (March 25 2008) (Arabic), "Freezing of Demolition Orders Until the End of the Goldberg Committee's Work", Akhbar al-Naqab (January 29 2008) (Arabic), Golan, Patricia, "Bedouin in Limbo," Jerusalem Post (December 24 2007). 32 Triangle' in the north, and in the Naqab in the south and constitute a minority in their own historical land. Though geographically separated from the Palestinians of the Occupied

Territories - the West Bank and the Gaza Strip - they remain connected culturally as an inseparable part of the Palestinian people.110

The Palestinian minority in Israel, on the collective and individual levels, are victims of

(oftentimes state-sponsored) multilayered discrimination on account of being Palestinian. The minority has been branded a 'security threat' and a 'fifth column', and in recent times it has faced increasing home demolitions, violence at the hands of the security and police forces, official racist statements and politician-endorsed ideas of 'population transfer', disproportionate funding and discriminatory legislation.111

It is not surprising, therefore, that the continued marginalisation of the Palestinian Arab minority has translated into 56% of Arab children and over 46% of Arab families living under the poverty line, even after governmental support of transfer payments and

112 progressive taxation on income.

110 For a formal elaboration on this point see The High Foliowup Committee for the Arabs in Israel and The National Committee for the Heads of the Arab Local Authorities in Israel, The Future Vision of the Palestinian Arabs in Israel (2006) 1'' Arab Association for Human Rights (HRA), On the Margins 2006: Annual Review of Human Rights Violations of the Arab Palestinian Minority in Israel 2006 (2007), online: http://www.arabhra.org/HraAdmin/UserImages/Files/YearlyReport2006FullVersionHighQualityEnglish.pd f 112 The National Insurance Institute (Nil), Report on Poverty and Inequality in Income (2005), Sikkuy, The Sikkuy Report 2006: The Equality Index of Jewish and Arab Citizens in Israel (2007) at 66. 33 Over the course of this thesis, the legal system's approach to Palestinian citizens of Israel will be studied. The land rights cases of Iqrit andBir'irri13 and Qi'adan,114 as well as the

Supreme Court's ruling to uphold the Nationality and Entry into Israel Law (Temporary

Order) (2003), are contemporary cases that hint to broader patterns of the restrictions on

Arab citizens' rights for reasons of land, demography, and security concerns of the State.

The Arab Bedouin struggle with the State over land is part of the general Arab citizens' struggle in Israel, the State of the Jewish people.115 The efficacy of the Israeli legal system in securing Bedouin land rights reflects on its capacity to ensure equality and justice beyond just the land issue and for more than just the Bedouin, but for all the 1.2 million Arab Palestinian citizens of Israel.

Daud v. Ministry of Defence, HCJ 64/51, P.D. 5, 1117, Palestine Yearbook of International Law, Vol. II (1985) 121. 114 Qa'adan v. Israel Lands Administration (2000), HCJ 6698/95, P.D. 54 (1) 258. 5 For a critique of Israel's taken for granted social and political order identifying as Jewish see Kimmerling, Decline oflsraeliness, supra note 21 at 173-207. 34 2 Zionism: A Critical History of the Movement and the

Ideology

2.1 The Zionist Movement in Praxis - The Pogroms and Three Major Aliyot

The purpose of this chapter and its positioning as antecedent to the chapter on the Israeli legal system and the case analyses on land rights of the Naqab Bedouin is twofold. First, to provide context by mapping the Zionist movement's ideology in praxis pre-1948 to understand its persistence in present Israeli political and legal culture which will be elaborated on in subsequent chapters and second to show the severity of the movement on

Palestinians vis-a-vis their relationship to their historical lands, with particular focus on the

Naqab Bedouin.

In discussing the role of Zionism in informing the land reality in the Naqab, the purpose of this chapter is not to discount the moral validity of the Zionist movement. Zionism was certainly not of a single strand and therefore the analysis that follows is not meant to essentialise the movement. As the Israeli sociolegal scholar, Ronen Shamir asserts, and as this thesis understands, there was no single coherent Zionist narrative, nor a 'mainstream'

Zionism. In his discussion on the legacy of the Israeli legal system, Shamir suggests the use

35 of the term 'Zionism' as a linguistic device to define a particular political position.116 I will also use the term for what can be said is a general goal of the movement, the establishment of a Jewish national home in Palestine. Therefore, when using the term 'Zionism', the thesis refers to the dominant strands in the prism of Zionism thought and action, those strands which realized the general goal in die establishment of Israel.

Zionism, which was conceived by its proponents as a noble endeavor and as a necessity given the instability of Jewish life in Eastern Europe, played out very differently on the

Palestinians, the vast majority of whom were a peasant class dependant on agriculture. To understand the Israeli legal system - its courts, its legislation, its administrative policies as well as its relationship with international law, it is crucial to understand the circumstances surrounding the legal system's development. It was under the umbrella of Zionism - in all its forms,117 that the legal system took shape. As noted by Ilan Pappe, the Israeli new historian,118 it was Zionism's focus on land and demography that has shaped and continues

1' Ronen Shamir, The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine (Cambridge: Cambridge University Press, 2000) at 8 [Shamir, Colonies of Law]. 117 Zionism encompassed labour Zionism, pragmatic Zionism, cultural Zionism, political Zionism, post- Zionism. See Alan R. Taylor, The Zionist Mind, (Beirut: Institute for Palestine Studies, 1974). For more on Zionism, see Walter Laqueur, A History of Zionism (New York: Holt, Rienehart & Winston, 1972), Noah Lucas, The Modern History of Israel (London: Weidenfeld & Nicolson, 1974). 118 Israeli new historians are those who have written a revised history of the 1948 War, differing from the official Israeli narratives. Basing their findings on recently declassified Israeli government documents, the new historians speak of the forcible expulsions of the Palestinian population and Palestinian land expropriations, where previously the Israeli 1948 narrative did not. In addition to Pappe, they include Benny Morris, Avi Shlaim and Tom Segev. However, they have come under criticism by some scholars on Israel/Palestine studies. For example, Nur Masalha, the Palestinian political science scholar, writes that although Morris' The Birth of the Palestinian Refugee Problem dispelled misconceptions that no ethnic cleansing of Palestinians took place, Morris' work relies much on Israeli archival material to the exclusion of Palestinian sources. It also fails to factor in the possibility of a larger, more premeditated plan to expel Palestinians off the land as an essential prerequisite to the foundation of the State of Israel. See Nur Masalha, "A Critique of Benny Morris" (1991) 21:1 Journal of Palestine Studies at 90-97. See also 36 to shape not only the legal system but the political culture until present day.119 This chapter then can be seen as a preface to the story that follows in chapters 3 and 4, on the web of interplay between the Israeli legal system, the Naqab Bedouin and the land.

Taking inspiration from Edward Sa'id's, "Zionism from die Standpoint of its Victims",120 diis chapter aims to show how the Zionist movement and ideology constructed the present- day Naqab Bedouin land reality, and how the issues of land and demography, central tenets of present-day Zionism, guide political decisions in the Israeli/Palestinian context and by extension, the legal system. The exploration of the question of whether Zionism was

'colonialism' as opposed to being just 'colonial settlement' and whether the orientalist tendencies of the movement hint to one or the other, will help inform the extent of

Zionism's effect on the seemingly sacred relationship of the Naqab Bedouin to their ancestral land. The aim of this chapter is not to disqualify the right of Jews to a safe home and to self-determination but more to show how in their realization of this right to self- determination, the Naqab Bedouin were forced to forfeit theirs.

It is my contention that the Zionist ideology of land purchase and settlement and a separate

Jewish economy built by an exclusive Jewish labour force (all championed by Zionism's messianic calling, myths, and exclusionism) were the early determinants that effected the dispossession of Arab Palestinians from their land and fashioned die reality today in the

Finkelstein's critique of Morris in the same issue at Norman Finkelstein, "Myths, Old and New" (1991) 21:1 Journal of Palestine Studies at 66-89. Ilan Pappe, Lecture on "The Ethnic Cleansing of Palestine", University of Toronto, March 26 2008. 120 Edward Sa'id, "Zionism from the Standpoint of its Victims" (1979) 1 Social Text 7 [Sa'id, Zionism]. 37 Naqab as addressed in brief in the first chapter. Although Zionism may have been a noble endeavor to begin with for reasons elaborated on later in this chapter, it cannot be absolved of its direct responsibility in the ethnic cleansing of 750,000 Palestinians in 1948 and in being a principal precipitator of the conflict, at the heart of which lies the land issue.121 That is not to say, however, that the sole blame for the land issue lies with Zionism. As will be shown in subsequent chapters, the oppressive laws and colonial policies of the Ottoman Empire together with those of the British Mandate shaped the land system as it exists today.122

Nevertheless, it was the expansionist ideology of Zionism with regard to land and Jewish demography that was a driving force in the formation of the Jewish State and in the creation of the land reality in the Naqab.

Pinsker, a Russian-Jewish doctor writing in the wake of the Russian pogroms in the latter part of the 19th century, was of the opinion that Jewish life among gentiles in Europe was not possible and that the only way for Jewish survival was in 'autoemancipation' - the gradual settlement of another land and the reconstruction of Jewish society in it.123 This exigency for survival was a central moral argument of the Zionist narrative. At the time of

121 Supra note 118, see also Ilan Pappe, The Ethnic Cleansing of Palestine (Oxford: Oneworld, 2006). 12 Also relevant is the protection offered to the Zionist movement by the Turkish authorities and later in a more crucial and sustained manner that of imperial Britain. See Maxime Rodinson, Israel, A Colonial Settler State? (New York: Pathfinder Press, 1973), David Waines, The Unholy War (Montreal: Chateau Books, 1971), Richard P. Stevens, "Smuts and Weizmann" (1973) 3:1 Journal of Palestine Studies at 35- 59, Zureik, Palestinians in Israel, supra note 49 at 36, Kimmerling, Decline oflsraeliness, supra note 21 at 28-29. For an interesting look at the 'dual colonialism' at play in the foundation of Israel and the Zionist 'narrative of denial' of the constitutive role played by the British colonial state in its own history, see Shamir, Colonies of Law, supra note 116 at 6-29. For more on the machinations of British colonial rule and Jewish colonialism and their impact on indigenous Palestinian land rights, see Forman and Kedar, "Colonialism in Palestine", supra note 62 at 491-539. 1 Leon Pinsker, Auto-Emancipation: A Warning to his Kinsfolk by a Russian Jew (published anonymously, 1882), cited in Benny Morris, Righteous Victims: A History of the Zionist-Arab Conflict, 1881-1999 (New York: Knopf, 1999) at 16-17 [Morris, Righteous Victims]. 38 writing Pinsker was unaware the land that would come to be settled and colonized in the push for Jewish autoemancipation would be Palestine.124

On the eve of the start of Zionist influx, in 1881, Palestine's population was 457,000 -

442,000 Arabs (Muslims and Christians) and 13,000-20,000 Jews.125 These Jews, known as the 'old yishuv' ('old settlement'), were largely poor, almost exclusively Orthodox and concentrated in Judaism's four holy towns of Jerusalem, Hebron, Safad and Tiberias. At this time, 70% of the Arab population was rural.126

The status of land during the first half of nineteenth century was that it was either owned by villagers privately in individual ownership, or collectively in the musha'a system, a communal form of land ownership. According to Abraham Grannott's survey of the land system of

Palestine, up until 1860, virtually all the land in Palestine was held in musha'a. Under this form of ownership, certain portions of the landed property of the villages belonged to individual families, with each family receiving for tillage the portion assigned to it.127

Although the musha'a system may not have been economically very astute, portions of land handed out were exactly the quantity entitled to each family, as well as equal in quality, in

Herzl, the founder of political Zionism contemplated Argentina and Uganda before Palestine, which is probably indicative of the extent to which commonplace European imperialist notions of'natives' and their 'territory' had penetrated his thinking. See Sa'id, 'Zionism', supra note 120 at 23, Kimmerling, Decline of Israeliness, supra note 21 at 23. Justin McCarthy, The Population of Palestine: Population History and Statistics of the Late Ottoman Period and the Mandate (New York: Columbia University Press, 1990), Alexander Scholch, Palestine in Transformation 1856-1882: Studies in Social, Economic and Political Development (Washington, D.C.: Institute for Palestine Studies, 1993) at 19-43. 126 Morris, Righteous Victims, supra note 123 at 4-5. 127 Granott, Land System in Palestine, supra note 56 at 174-180. 39 keeping with the principle of a just land distribution policy.128 The second half of the nineteenth century saw increasing impoverishment of the villagers due to 'efficient' Ottoman taxation and the buying up of rural land by urban notable families {a'yarij who had accumulated wealth as Ottoman agents and trades with the West. By the early twentieth century, peasants no longer owned land but continued to cultivate it as tenant farmers.129

The first aliyah130 to Palestine, which spanned from 1881-1903, was prompted by the pogroms of Eastern Europe when most Jews felt that Jewish life in Russia was no longer tenable. This aliyah was led by the Hovevi Zion (Lovers of Zion) movement (famous mostly via its constituent group, the Biluim society) whose activities came to be known as practical

Zionism, which was the realization of the dream 'day-to-day, dunam-by-dunam'131 in the settlement of Palestine; by 1900, they had purchased about 200,000 dunams of land.132

Nevertheless, of the three aliyot, this aliyah was the least politically driven and their proponents lacked a coherent ideological vision.133

The second (1904-1914) and third (1919-1923) aliyot were different. These Jewish settlers were young, secular, politicized individuals whose socialist and communist ideas married with nationalist goals to formulate a Zionist strategy of an exclusively Jewish communal

Jacques Weulerrse, Paysans de Syrie et du Proche-Orient (Paris: Gallimard, 1946), cited in Raphael Patai, "Musha'a Tenure and Co-Operation in Palestine" (1949) 51:3 American Anthropologist at 436-445 [Patai, "Musha'a"]. Morris, Righteous Victims, supra note 123 at 5. 130 Immigration and settlement of Jews to Palestine - historically, there were three main aliyot. 131 1 dunam = 1000 square metres. 132 Vital, David, The Origins of Zionism (Oxford: Clarendon Press, 1975) at 183 [Vital, Origins of Zionism], Morris, Righteous Victims, supra note 123 at 17-19. Kimmerling, Decline oflsraeliness, supra note 21 at 22. 40 society that would be the basis for a future Jewish state. They affirmed that not politics and diplomacy but work, immigration, land purchases and new settlement establishment was the way to gain power; the Zionist rallying slogan had acquired novel expansionist tones and now rang, 'one more dunam, one more goat'.134

Herzl was responsible for giving Zionism the political contours that determined its role as an international force135 and in that contributed to the successes of the second and diird aliyot.

He founded the World Zionist Organisation, which was Zionism's 'core and motor'136, at the

First Zionist Congress in Basel in 1897. According to the Israeli new historian, Benny

Morris, Herd's ideas of political Zionism stemmed from the works of Kalischer, Alkalai and

Hess, the 'true forerunners of Zionism',137 rather than in the actions of the first aliyah movement of Hibbat Zion. Like his predecessors, Herzl's idea was to establish a 'Jewish national fund' (set up in 1901) and a bank (the Jewish Colonial Trust) (1899) for land purchase and large-scale land settlement. He proposed to achieve statehood through alliance with a Great Power, Turkey or Germany. He believed this Jewish State would form 'an outpost of civilization against barbarism' and so was in the interest of the Great Powers.138

lMIbid. at 26-27. 135 Vital, Origins of Zionism, supra note 132 at 233. 136 Morris, Righteous Victims, supra note 123 at 22. 137 Jacob Katz, "The Forerunners of Zionism," (1978) 7 The Jerusalem Quarterly at 10-21. Despite their personal differences, the founding fathers of religious Zionism, Kalischer, Alkalai and Hess shared in the belief that it was the destiny of the Jews to liberate themselves through forming a nation in the Holy Land, and that doing so would precipitate the coming of the Messiah. See Chaim I. Waxman, "Messianism, Zionism, and the State of Israel", (May 1987) 7:2 Modern Judaism at 175-192. 13 Morris, Righteous Victims, supra note 123 at 22-23, Kimmerling, Decline oflsraeliness, supra note 21 at 25, see Sections 2.2 and 2.3 for more on the Zionist self-representation as modernists in a traditional and backward East. 41 The pogroms of 1903-06 in Russia were a major precipitant of the second aliyah, which was a revolt against the helplessness of Diaspora life. However, and perhaps not unsurprisingly, many of new dim (immigrants) "translated Russian experiences into Palestinian coinage", whereby the Arab was equated with gentile, and local antagonism stemming from territorial feuds was translated as anti-Semitism,139 rather than anxiety about land loss.

As early as 1935, Ben-Gurion stated that the entire Naqab was perfectly suited for Jewish settlement.140 However, few Jews lived in the Naqab prior to the 1940s so that up until that point tribes faced very little interference with their land.141

In a letter directed to the JNF Directorate on 12 November 1942, Ben-Gurion said that the

Naqab was becoming increasingly central to Zionist settlement and political enterprise and that settlement of the Naqab was one of the most central and urgent duties of land policy and Zionist policy as a whole.142 As a consequence of Ben-Gurion's directives, the JNF began focusing more on land purchase in the south and north Naqab.143 Although the total amount of Naqab land in JNF possession before 1948 is difficult to ascertain, according to

Yosef Weitz, director of the JNF's Land and Afforestation Division and active in JNF land

Morris, Righteous Victims, supra note 123 at 25. 1 Shabtai Teveth, Ben Gurion: The Burning Ground, 1886-1948 (Boston: Houghton Miflin Company, 1987) at 497. 141 Meir and Zivan, "Jewish and Bedouin Frontier Encounters", supra note 65 at 248. 142 Tuten, "JNF in Palestine", supra note 65 at 208. 143 Ibid, at 252. 42 acquisitions, in 1936 the JNF held 8,000 dunams in the Naqab region and by 1947, it owned

158,000 dunams.144

Purchases in the Naqab were influenced by the JNF policy of 1939, which was defined by a two-pronged strategy of 'internal expansion', meaning expansion of JNF land by creating contiguous areas of Jewish settlement, and 'outward expansion' aimed at acquiring land where ownership was minimal or nonexistent. These objectives were part of the goal to influence future borders if Palestine was to be partitioned.145 While the Naqab did not fall under the area allocated to the Jewish state under the Peel Commission's Partition Plan of

1937, it did under the United Nations Partition Plan of 1947, in considerable part owing to

JNF land purchases in the northern and southern Naqab.146

Jewish settlement expansion in the northern Naqab took several stages.147 First, the JNF and the JA set up three agricultural 'observation outposts' in 1943 for the purposes of studying soil, climate and subterranean water sources. Based on these studies and tests the JNF would develop an outline plan for the Jewish settlement of the Naqab.148 Next, the 'eleven spots'

Ruth Kark, "Jewish Frontier Settlement in the Negev, 1880-1948: Perception and Realization", (1981) 17:3 Middle Eastern Studies at 347, endnote no. 72, cited in Tuten, "JNF in Palestine", supra note 65 at 253. 145 Tuten, "JNF in Palestine", supra note 65 at 261. 146 Ibid, at 49-50. 147 For more on Jewish settlement in the Naqab, see Ruth Kark, The History of Pioneer Settlement in the Negev (Tel Aviv: Hakibbutz Hameuhad, 1974) (Hebrew), Aharon Kellerman, Society and Settlement - The Jewish Land of Israel in the Twentieth Century (Albany: State University of New York Press, 1993). 1 The three posts were Gevulot, Beit Eshel, and Tel Zofim (later renamed Revivim). Yosef Weitz, "Agricultural Prospects in the Negeb", Pamphlet Service No. 2 (London: Zionist Federation of Great Britain and Ireland, n.d. (c. 1945)), found in Central Zionist Archives (Jerusalem, Israel), card catalogue No. 35.370, 3-4, cited in Tuten, "JNF in Palestine", supra note 65 at 251-252. 43 settlements were set up in 1946, followed by the seven pre-1948 War 'stronghold settlements' by 1947. All these settlements, mostly kibbutzim with a population of 3,000 by

1948, were established on pre-purchased land as part of core Zionist settlement organisations and contrary to the British Mandate White Papers policy and regulations regarding Jewish settlement in Palestine.149 The British White Paper of 1939 called for an independent state with a constitution under which Arabs and Jews would share authority.

The White Paper included the Land Transfer Regulations, which came into effect in

February 1940, and prohibited or severely restricted land sales from Arabs to Jews. The aim of land sale restrictions was to prevent the increasing landlessness of Arab peasants and to pacify the subsequent peasant revolts.150

Meir and Zivan, Israeli scholars who have researched extensively the Naqab Bedouin, write that the frontier experience between Jewish settlements and the Naqab Bedouin during the pre-state period was marked by'sporadic strife' where occasionally Bedouin sabotaged water pipelines to kibbutzim, trespassed and grazed flocks on cultivated kibbutzim fields, blocked roads and claimed through-passage charges.151 However, they insert a note of caution about ascribing blame to the Bedouin for such actions. They write that Bedouin 'sabotage' and

'trespass' have to be understood in light of how historical seasonal migration dictated grazing on lands that, in the new frontier reality through Zionist purchase, suddenly became Jewish

Supra note 65. 150 See Cohen, "British White Paper on Palestine", supra note 65, Tuten, "JNF in Palestine", supra note 65 at 42-45. For the text of the White Paper see Royal Institute of International Affairs, Great Britain and Palestine, 1915-1945 (Westport, Connecticut: Hyperion Press, 1976) at 167-174 (Appendix VI). 151 Meir and Zivan, "Jewish and Bedouin Frontier Encounters," supra note 65 at 250-251. 44 settlement property, to which Bedouins no longer had rights.152 Furthermore, territorial resource-sharing of water and grazing rights was an accepted Bedouin practice153 as these were regarded by the Bedouin as open and free.154

Without going into details about the messianic callings and myths that facilitated the Zionist settlement of Palestine, for there is ample literature on die subject155, suffice it to say that redemptionist arguments for land colonization and religious imperatives stirred and continue to stir Zionist approaches to land and die subsequent exclusion of Palestinians from it.

By 1947, Jews in Palestine were 32% of the population and owned 8% of the land.156 The

1948 war resulted in Jews controlling 78% of the land of historic Palestine, 750,000

Palestinians having been driven off their land and 420 villages having been demolished.157 In

1914 the ratio of Arabs to Jews in Palestine was 13:1. After 1948, it was 1:7 - a complete reversal.158

151 Ibid, at 252. 153 Avinoam Meir, "Territoriality among the Negev Bedouin in Transition from Nomadism to Sedentarism," in Philip Carl Salzman and Ugo Fabietti (eds.), Tribal and Peasant Pastoralism - The Dialectics of Cohesion and Fragmentation (Pavia, Italy: IBIS, 1996) at 187-207. 154 Meir and Zivan, "Jewish and Bedouin Frontier Encounters," supra note 65 at 252. See also Marx, Negev Bedouin, supra note 17 at 25 where the author talks about wells being 'uncontested public property'. For example, on the quasi- religious terms employed to stress divine calling to the land see Yiftachel, Ethnocracy, supra note 88 at 61, Zureik, Palestinians in Israel, supra note 49 at 34; for the stress on Jewish suffering (in the Holocaust and prior) as being unique and therefore not comparable to the suffering of Palestinians dispossessed from their land, see Yiftachel, Ethnocracy, supra note 88 at 58, Kimmerling, Decline oflsraeliness, supra note 21 at 186, Norman Finkelstein, The Holocaust Industry: Reflections on the Exploitation of Jewish Suffering (London, New York: Verso, 2003) at 41, 48. 156 Yiftachel, Ethnocracy, supra note 88 at 58. 157 Rashid Khalidi, Palestinian Identity: The Construction of Modern National Consciousness (New York: Columbia University Press, 1997), Morris, Righteous Victims, supra note 123. 15 Zureik, Palestinians in Israel, supra note 49 at 108. 45 2.2 Zionism and the Palestinian Land Crisis

The rallying slogan of the Zionist movement in reference to Palestine was a 'Land without people, for a people without land'.159 This oft-repeated slogan is oft-repeated because it is fairly characteristic of the Zionist movement and like it, the slogan makes land settlement seem a straightforward imperative; it appeals to the divine calling of settling a new frontier, and it absolves the settlers of moral responsibility in the act because it has occluded the Arab

Palestinian. That the slogan was an untruth was relayed by a leading Eastern European

Jewish essayist, Ahad Ha'am, who wrote in 1891 after a visit to Palestine that abroad the

Zionists are used to believing that Eretz Yisrael is almost totally desolate, an unsown desert, when in truth it is difficult to find fields that are not sowed. He derided Zionist use of such a terra rudlius characterization of the land.160

In keeping with the Zionist two-pronged strategy of conquest of land and conquest of labour in the goal of colonizing Palestine, the movement's second aliyah protagonists under

Herzl established the Jewish National Fund (JNF) for land purchase in 1901 and the

Histadrut (Hebrew Workers' Union) in 1920. Both institutions played a central role in

alienating Arabs from the land, and excluding them from the Jewish-controlled labour

159 Zionist slogan adopted by Herzl, originally found in Lord Shaftesbury's memoirs in 1854 and recycled by Zionist writer Israel Zangwill in 1901. Adam Garfinkle, "On the Origin, Meaning, Use, and Abuse of a Phrase," (1991) 27:4 Middle Eastern Studies at 539-550, Eliezer Be'eri, The Beginning of the Israeli-Arab Conflict, 1882-1911 (Haifa: SifriyatPo'alim/Haifa University Press, 1985) (Hebrew) at 35-37. 1 Bat Ye'or, The Dhimmi, Jews and Christians under Islam (Fairleigh Dickinson University Press/Associated University Presses, 1985) at 105, Morris, Righteous Victims, supra note 123 at 42. See also Ahad Ha'am, "The truth from Eretz-Israel", in Writings of Ahad Ha'am (Tel Aviv, 1961) (Hebrew), Zureik, Palestinians in Israel, supra note 49 at 33. 46 market. JNF policy, flowing from its Constitution, said that once land was Jewish-owned it would belong inalienably to Jews of the world in perpetuity; this principle still stands today.

Similarly, laws of 'Jewish labour5 guarded by the Histadrut meant that non-Jews could not be hired to work Jewish-owned land; this is partially operational on agricultural settlements today. Zionist land policy had a debilitating effect on the musha'a land system of Palestine161 and this is important to mention because although Granott asserts that Naqab land was not held in musha'a^1 Arab Palestinian peasants worked on Naqab Bedouin land that they took out on one year leases as sharecroppers or agricultural labourers.163 It was the scarcity of land due to its increasing privatization that had peasants increasingly look for work on Naqab

Bedouin land.164 The expansionist colonies of the kibbutzim and Zionist land purchases from Arab landowners165 contributed to the privatization and expropriation of peasant land as demonstrated in the decline of average land holdings: in 1900 it was 148 dunams, in 1927,

78 dunams, in 1936, 42 dunams.166 As Zureik writes, although Zionists believed they were

Granott writes that up to 1860 most of the land in Palestine and Syria was held in musha 'a communal ownership and he estimates that by 1936, 50% of land in Palestine remained musha'a. Patai asserts that by around 1940 only 25% of the land was held in musha 'a. See Granott, Land System in Palestine, supra note 56 at 174-180, Patai, "Musha'a", supra note 128 at 441. Granott, Land System in Palestine, supra note 56 at 213-214. 163 Marx, Negev Bedouin, supra note 17 at 75-77 164 Ibid, at 76. 165 Warriner writes that Palestine was not a feudal society like other Middle Eastern societies and comments "Palestine, by comparison with other Middle Eastern countries, does not suffer from the evils of absenteeism on a large scale. It is important to stress this point, because some Zionist writers paint a picture of Arab village life as a feudal society disintegrating into capitalist exploitation of the labourers by landowners and that in a process which, in Palestine at least, is not present to any marked degree. It was the indifference of the Arab landowners rather than their exploitation of their tenants which permitted the purchase of land by the JNF." See Doreen Warriner, Land and Poverty in the Middle East (London: Royal Institute of International Affairs, 1948) at 65 [Warriner, Land and Poverty], cited in Zureik, Palestinians in Israel, supra note 49 at 42-43. 166 See John Russell, "Aspects of Palestine Agriculture", in Joseph Burton Hobman (ed.), Palestine's Economic Future (London: Lund Humphries, 1946) at 116-129. Also see Warriner, Land and Poverty, supra note 165, Zureik, Palestinians in Israel, supra note 49 at 42. 47 colonizing a land and not a people (as also reflected in their rallying slogans), their actions directly exacerbated Arab hardships, resulted in Arab displacement from land and loss of livelihood, and in the long run contributed to the truncated Arab class structure present to this day.167

Such a truncated Arab class structure was propelled in their alienation from the land after

1948 through Israel's enactment of various legislation to seize, expropriate and reclassify

Palestinian refugee and internally displaced land as State owned land, and this was part and parcel of the legal institutionalization of Israel's land regime and was effectively completed by I960.168 The Cultivation of Fallow Lands and Unexploited Water Sources (Fallow Lands

Regulations)169 in October 1948 which enabled temporary possession of Palestinian land, was the first in a series of legislation to eventually turn Palestinian land into unrestricted

Jewish-Israeli ownership. Another major piece of legislation was the Absentees' Property

Law (1950)170 which created the new legal status of 'absentee'171, defining it in strict, all-

Zureik, Palestinians in Israel, supra note 49 at 34-36, Glenn Yago, "Whatever happened to the 'Promised Land'?", Paper presented at the annual meeting of the Society for the Study of Social Problems (New York, 1976) at 11-12. 168 For comprehensive coverage on legislative measures undertaken between 1948 to 1960 to transfer Palestinian lands into Israeli state land, see Geremy Forman, and Alexandre (Sandy) Kedar, "From Arab land to "Israel Lands': the legal dispossession of the Palestinians displaced by Israel in the wake of 1948" (2004) 22 Environment and Planning D: Society and Space at 809 [Forman and Kedar, "Israel Lands"], also see Abu Hussein and McKay, Access Denied, supra note 51 at 69-96. 169 Fallow Lands Regulations, 1948, Official Gazette, number 27, supplement 2 (October 15 1948), see Forman and Kedar, "Israel Lands", supra note 168 at 814. 170 Absentees' Property Law, 1950, L.S.I, number 37 (March 20, 1950). 171 An absentee was anyone who, on or after 29 November 1947 (the date of the United Nations General Assembly resolution to partition Palestine), had been: (a) a citizen or subject of one of the Arab countries at war with Israel, (b) in any of these countries, or in any part of Palestine outside the jurisdiction of the regulations, or (c) a citizen of Palestine who abandoned his or her normal place of residence. Technically, this included virtually all Arabs who vacated their homes during the war, regardless of whether they returned. 48 encompassing terms. According to the law, anyone defined as 'absentee' would have all rights in any property automatically transferred to the Custodian of Absentee Property; failure to hand over property was deemed a criminal offence.172 Similarly, the legislature passed the Land Acquisition (Validation of Acts and Compensation) Law173 in 1953, whose true intention was the retroactive legalization of the seizure of land and the payment of compensation.174 The Basic Law: Israel Lands (I960)175 affirmed the non-transferability of

Israel Lands in the ownership of the State, the Development Authority and the Jewish

National Fund, ensuring perpetual Jewish possession of those lands.176 Zureik writes that the truncated class structure brought about by alienation from the land is affirmed by the poor standard of living and proletarization of the Arab minority177 where today 56% of Arab children and over 46% of Arab families live under the poverty line.178

Although non-institutionalized acts of hostility by Arabs against Jews occurred pre-1948, "it would be incorrect to say that this was anti-Semitism as we usually use the term", according to a Zionist emissary in Palestine, writing in 1914.179 Violent Arab protests against Jews did not take place until 1921, in 1929 and then for the most sustained period in the Arab

Abu Hussein and McKay, Access Denied, supra note 51 at 70. 173 Land Acquisition (Validation of Acts and Compensation) Law, 1953, L.S.I., number 122 (March 20, 1953). 174 The law applied to all land that was: used for essential development, settlement, or security purposes between 14 May 1948 and 1 April 1952, still needed for one of these purposes, and not in its owner's possession on 1 April 1952. 173 Basic Law: Israel Lands, 1960, L.S.I., number 312 (July 29, 1960). 176 See Chapter 3 for a more comprehensive treatment of the legal and administrative mechanisms employed in the expropriation and control of traditionally Palestinian lands. 177 For Zureik's comprehensive analysis of the transformation of the traditionally Arab agricultural peasant class to that of a lumpenproletariat within Israel, see Zureik, Palestinians in Israel, supra note 49 at 106- 141. 178 Supra note 112. 17 Zureik, Palestinians in Israel, supra note 49 at 32. 49 Rebellion from 1936-39.180 There is an element of truth in saying that the resentment towards Zionist settlers was significant among the upper-class Arab society, among the elites and landowners, whose economic position was being threatened. However, at the same time there was a Palestinian national movement early in the 20th century reflecting other anti- colonial pan-Arab nationalist movements and the resentment of Zionist settlement had a strong peasant base to it. The 1931 census says that 22 percent of peasants depending on agriculture were landless,181 while in 1945 it is estimated that 35 percent of village families were landless.182 Historian Neville Barbour writes that land sales had caused a profound sense of grievance and was a principal cause of the peasantry revolt.183

Even if we accept the socialist context of Zionism's 'Jewish labour' and 'Jewish agriculture' or that it was a movement of a poor and oppressed strata of society184 as discussed in the opening of this chapter, it was nevertheless a strange form of socialism built on sectarianism and Jewish exclusivity, its ideology moulded by European imperialism185 and all its

lsu Yaacov Ro'i, "The Zionist Attitude to the Arabs, 1908-1914" (1968) 4:2 Middle Eastern Studies at 216- 217, Ibid, at 38. Warriner, land and Poverty, supra note 165 at 63. 182 Rosemary Sayigh, The Palestinian Experience Viewed as Socialisation, unpublished MA thesis, (Beirut: American University of Beirut, 1976) at 69. Neville Barbour, Nisi Dominus (Beirut: Institute for Palestine Studies, 1959) at 123, Zureik, Palestinians in Israel, supra note 49 at 45-46. 184 Albert Memmi, The Colonizer and the Colonized (Boston, Mass: Beacon Press, 1967) at 38 [Memmi, Colonizer and Colonized]. 185 Zionism came at a time when European imperialism was at its height, during the 'age of empire', when by 1914, Europe held a grand total of 85% of the earth as protectorates, colonies, dependencies, dominions and commonwealth. See Harry Magdoff, Imperialism: From the Colonial Age to the Present (New York: Monthly Review, 1978) at 29, 35. 50 associated, inherent racist implications186 that created a poor and oppressed strata in

Palestinian Arab society as a consequence.

2.3 Is Zionism Colonialism?

There has been a significant amount of literature that has attempted to either draw the link or refute one between Zionism and colonialism. Those denying the link usually adopt the stance of the Zionist enterprise as being founded by a population that settled Palestine but that this did not equate to colonialism as is traditionally understood in relation to Third

World states within the framework of critical race or postcolonial theory. Therefore, for those refuting the equation of Zionism to colonialism, they see Zionism as 'settlement' or

'colonial settlement', whereby a foreign population left their native lands to settle in

Palestine.

A definition of colonialism will be worked through in the course of our discussion on the politics of Zionist praxis and the impact that it had on the native population. It would suffice now to inscribe a working definition of colonialism. To borrow in part from Edward Sa'id, colonialism can be understood as the implanting of settlements on distant territory and the exercise of power and control over a native population to the benefit of the colonisers.187

This, of course, would pose for Zionism a far more serious deontological transgression than

1 Warriner, Land and Poverty, supra note 165. 187 Sa'id, Edward, Culture and Imperialism (New York: Vintage Books, 1994) at 8 [Sa'id, Culture and Imperialism]. 51 just being a project in 'colonial settlement'. Imperialism, according to Sa'id, which sometimes leads to colonialism, is the practice, theory, and attitudes of a dominating metropolitan centre ruling a distant territory.188

Why revisit the debate about Zionism's role in the formation of Israel as being either a project in colonialism versus being a colonial settler state? This is important so as not to present the settlement of the land as benign in its process and consequences189 while not discounting the perception of the exigency of the movement to its actors. If Zionism is shown to be colonialism, then we must ask what practices and institutions born of colonialism underlie, and persist, in present-day Israel as regards the Naqab Bedouin. And if we are talking about social justice for an indigenous minority, then what are the underlying colonial aspects of the legal system that need to be rethought and reconfigured to achieve that? Of course, exploring the link between Zionism and colonialism does not serve to brand all Zionists as colonialists or imperialists; rather, the exploration will help to understand the underpinnings of the legal system more accurately, which will place us in a better position to recommend a reorientation of Israeli law's principles and normative frameworks in dealing with Naqab Bedouin land rights if so required.

Zureik, Palestinians in Israel, supra note 49 at 67. 52 The idea that Israel was founded through 'Zionist colonial settlement' but not 'colonialism' is espoused by a number of scholars, among them Tartakower190, Memmi191, Avishai192 and

Lucas193. Elias Zureik194 takes these very scholars to task in his book, The Palestinians in Israel:

A study in internal colonialism195

Tartakower dismisses the colonialism label in the Jewish settlement of Palestine,196 and claims that the Jewish State was a "state by agreement".197 Zureik is critical of such conceptions as he has been unable to decipher from Tartakower's work when and where such an agreement was reached with the Arab population in the formation of the Israeli state.198 That remains the pervading question: how is it that when looking at the formation of the Israeli state the Palestinian masses have been occluded, that in discussing colonialism, it was the nature of Zionist settlement and Zionist ideology of Jewish labour and Jewish socialism that invalidate the colonialism label and not what Palestinian masses felt, experienced and lived as a consequence?

190 Arieh Tartakower, "The Making of Jewish Statehood in Palestine" (1948) 10:3 Jewish Social Studies 207 [Tartakower, "Jewish Statehood"], and Arieh Tartakower, "The Sociology of Political Life in Israel" (1966) 22:1 Jewish Social Studies 83 [Tartakower, "Sociology of Political Life"]. 191 Albert Memmi, "Zionism, Israel and the Third World" (1972) Nos. 2,4 Bi-Tefutsot, Ha-Golah (Hebrew) at 22-24. 192 Bernard Avishai, "Zionist 'Colonialism': Myth and Dilemma", Dissent (1975) at 125-34 [Avishai, "Colonialism Myth and Dilemma"]. 193 Noah Lucas, The Modern History of Israel (London: Weidenfeld & Nicolson, 1974) [Lucas, History of Israel]. Elia Zureik is Professor Emeritus of Sociology at Queen's University. Zureik, Palestinians in Israel, supra note 49. 1 6 Tartakower, "Jewish Statehood", supra note 190 at 208. 197 Ibid, at 201. Zureik, Palestinians in Israel, supra note 49 at 77. 53 Memmi, a Jew of Tunisian origin, is an influential postcolonial theorist well-known for his work on the French colonization of Tunisia, The Colonizer and the Colonized.199 In discussing

Israel in relation to colonialism, he has said that Zionism was "from its start not only a movement of the poor strata, but also the expression of an entire oppressed people"200 and therefore rejected the colonialism label ascribed to it. In challenging Maxime Rodinson, a

French Orientalist scholar who asserted that the Zionist movement was an integral part of

European colonialism whose objective was to uproot the native Arabs in the formation of

Israel,201 Memmi has said that Israel did not exhibit a single indicator of an enterprise of colonialism. There was no economic exploitation of child labour by minority settlers, no force used to secure cheap labour while settlers occupy the position of managers, no mother country responsible for direct/indirect military rule, and no repression of cultural rights of the indigenous to the benefit of the settlers.202

I agree with Memmi that Zionism was seen by its advocates as a movement and expression of poor, oppressed Jews and in that sense absolves itself partly of the characterizations of

European colonialist enterprises in Africa, Asia and the Middle East. Nevertheless, the expansionist colonies of the kibbutzim and Zionist land purchases from Arab landowners203 contributed to the privatization and expropriation of peasant land, to the detriment of the

Supra note 184. 200 Ibid, at 38. 201 Maxime Rodinson, Israel: A Colonial Settler State? (New York: Monad Press, 1973), Rashid Khalidi, "Review: The Colonial Foundations of Israel" (1974) 3:4 Journal of Palestine Studies at 137-139. Memmi, Colonizer and Colonized, supra note 184 at 27. 203 Supra note 165. 54 majority of Palestinians who earned their livelihood through working the land pre-1948.204

This fact, in concert with the Nakba and the ethnic cleansing of Palestine in 1948, and the subsequent Military Administration over the Arabs until 1966, is responsible for the socioeconomic standing of Arab Palestinians in Israel today. As mentioned earlier, the unemployment rate among the Bedouin in the Naqab is estimated at 55% of the total workforce and those Bedouin who are employed are concentrated in low-status, low-paying occupations primarily in Jewish towns, all of which offer no opportunity for real prospects.205 Furthermore, for Bedouin in the development towns, per capita income falls to

20% of the Israeli average.206 The government policy vis-a-vis the Naqab Bedouin to deny historical land claims and to concentrate the Naqab Bedouin into development towns essentially undermines more than just the 'cultural' rights of this indigenous minority - it negates specific collective rights of indigenous peoples which include the rights to their lands, territories and resources, to self-government and self-determination, and to freely define and pursue their economic, social and cultural development.207 Furthermore, Maxime

Rodinson asserts that Zionism had its mother country in Europe, as a whole.208 The question remains, is a project of colonialism obligated to be linked to a mother country, or a mkropde as Memmi would assert,209 for it to be characterized as colonialism as seen in its

Supra note 166. 205 Supra note 106. 206 See Lithwick, Urban Development Strategy, supra note 13 at 15. 207 See Chapter 4 for further discussion on the international norms and standards on indigenous rights that apply to the Naqab Bedouin. 208 Supra note 201. According to Memmi, France was the metropole and Algeria, Tunisia were the colonies. 55 consequences that bring about a dispossession, displacement, and subjugation of a native population?210

Bernard Avishai, one time political theory lecturer at Hebrew University, wrote in 1975 in

Dissent magazine of the positive effect on Arab peasants of Zionist colonization211 and argues that if colonialist policies were adopted, they were only in reaction to war conditions and

Arab extremism.212 He was optimistic that Jews and Arabs could be reconciled within the

Zionist framework since Zionism had achieved its objectives and class domination had been avoided.213 In response to Avishai's assertions, Zureik comments that any benefit accruing to

Arab peasants from Jewish settlement was incidental and not part of a conscious attempt to share technology.214 This was in keeping with the Zionist ethos to build a separate Jewish economy built by an exclusive Jewish labour force that took shape in the institution of the

Histadrut. Writing in 1985, Avishai in The Tragsdy ofZionism is less optimistic about Zionism's effects on the Arab minority. Where ten years prior he said Jews and Arabs could be reconciled within a Zionist context, in 1985 he conceded that as Israel was founded both as a democratic and a Zionist settler state it has come to favour Jews over non-Jews, and that if

Drawing on Memmi's conception of the metropole, Michael Shurkin asks the question of what is the metropole in the case of Zionism? For him, Israel is the metropole with regard to the Occupied West Bank and Gaza Strip while he contends that 'the more radical' see Israel as an entire colony and the West as the metropole. See Michael Shurkin, "Is Zionism Colonialism?", Zeek: A Journal of Jewish Thought and Culture (2003), online: http://www.zeek.net/politics_0306.shtml. 211 Avishai, "Colonialism Myth and Dilemma", supra note 192 at 130. 212 Ibid, at 133. 213 Ibid. Zureik, Palestinians in Israel, supra note 49 at 79. 56 it is not able to go beyond its anachronistic Zionist theories and institutions, its democracy

(encompassing equality for Arab citizens) would suffer.215

The narration that colonialism was beneficial to the natives, or that the colonial class brought a lot of good to the colonised, is similar to apologists of British imperialism and colonialism in India, where the construction of railways and the instruction in 'law and order' were seen as gifts of the British to the natives. Such niceties of British colonialism seem to painfully obscure the fact that railways were in part built by the Indian incarcerated, high- ranking administrative positions were essentially reserved for the whites or Anglo-Indians, and railway construction was initiated for the benefit of the British economy to counter their trade deficits. Also, the introduction of law and order was to facilitate and legitimize minority control for the benefit of the British economy and their political interests, which rendered the Indian economy beleaguered by poverty where historically it was one of the largest economies in the world. Widespread famines, low literacy rates, and one of the world's lowest life expectancies were also attributed to British colonialism.216 Nevertheless, as in

Bernard Avishai, The Tragedy of Zionism: Revolution and Democracy in the Land of Israel (New York: Farrar Straus Giroux, 1985). Roopa Srinivasan, Manish Tiwari and Sandeep Silas (eds.), Our Indian Railway: Themes in India's Railway History (Foundation Books, 2006), Tirthankar Roy, The Economic History of India, 1857-1947 (Delhi: Oxford University Press, 2000). For a criticism of the conciliatory views towards colonialism, see Sa'id's critique of V.S. Naipaul. Naipaul, a Trinidadian writer of Indian origin, held views that India was indebted to Britain for India's cultural sense of self and 'Englishness', while insisting that the colonised class had only itself to blame for its misery. See Sa'id, Culture and Imperialism, supra note 187. Sa'id writes in reference to Vidiadhar Surajprasad Naipaul, India: A Wounded Civilization (New York: Vintage, 1977), Vidiadhar Surajprasad Naipaul, An Area of Darkness (New York: Vintage, 1981). 57 other colonial societies, colonial practice, including colonial law, was presented as "die gift we gave them."217

In referring to the 'conquest of labour' strategy of the Histadrut, Lucas sees in it proof of

Zionism's incongruousness with colonialism since it worked explicitly against economic exploitation of the indigenous population, such as that which took place in European colonialist states like Rhodesia and Kenya.218 Lucas writes that Arab-Jewish working class solidarity according to Zionist ideologists could only be achieved once Arabs elevated their lifestyles and consciousness to the level of Jewish workers.219 Zureik looks at Lucas' findings from a different angle - Zionist labour institutions worked towzrds segregation and discrimination in labour relations so as to prevent the exploitation of Arab workers.220 Lucas himself writes of the shortcomings of the Zionist doctrine, saying that Zionist focus on the

Arab landowners inhibited the Arab masses from achieving a working-class revolution. This blinded them to the Palestinian nationalist movement that stood at loggerheads with

Zionism. Talk of Jewish cooperation with Arab peasants and workers was exaggerated.221

Furthermore, although the immigrants of the second aliyah stressed their anti-colonialist approach to the land, that was not the case for the first aliyah, whose settlers adopted

7 Peter Fitzpatrick, "Custom as Imperialism", in Jamil M. Abun-Nasr, Ulrich Spellenbert and Ulrike Wanitzek (eds.), Law, Society and National Identity in Africa (Hamburg: Helmut Buske, 1989) [Fitzpatrick, "Custom as Imperialism"]. Lucas, History of Israel, supra note 193 at 119. 219 Zureik, Palestinians in Israel, supra note 49 at 81. 220 Ibid. 221 Lucas, History of Israel, supra note 193 at 157. 58 capitalistic approaches congruent with colonialism in relation to the land and the Arabs, who were seen as a reservoir of cheap labour.222

Zureik concludes that Arab Palestinians in Israel are a colonized indigenous minority, whether or not this was the intended object of the Zionist movement.223 Former member of the left-wing Zionist youth movement Hashomer Hatzair, Nathan Weinstock notes that

Zionism, as a 'deviant' form of Western colonialism, did not intend to colonise and exploit the indigenous Arabs but to replace them with Jews.224 However, it is not just in the goals but in the consequences of Jewish settlement, which featured an exercise of power and dominion over, and an exclusion of the natives, to the benefit of the settling class, that

Zionism becomes colonialism. This is particularly the case for the Naqab Bedouin post-

1948, as subsequent chapters will indicate, where through the power of law in enforcing and legitimising the commands of the colonial class over the native population, law served as the authoritative arm of a project of colonialism.

As mentioned at the outset, this chapter then can be seen as a preface to the story that follows in chapters 3 and 4, on the web of interplay between the Israeli legal system, the

Naqab Bedouin and the land, providing context in the study of what practices and institutions borne of colonialism underlie, and persist, in present-day Israel. In keeping with

111 Ibid, at 25. 223 Zureik, Palestinians in Israel, supra note 49. Nathan Weinstock, "The impact of Zionist colonization on Palestine society before 1948" (1973) 2:2 Journal of Palestine Studies 50-63. 59 that, it is also beneficial at this point to look at the characterisation of what the State of Israel is within the colonial society/colonialism paradigm.

Gershon Shafir225 ascribes to Israel the characterisation of a 'pure settlement colony1. Shafir finds colonial societies to be of four forms: an occupation colony (not concerned with settlement per se but administrative and military control), a mixed colony, a plantation colony and a pure settlement colony (all settlement focused).226 He concludes that Israel is a pure settlement colony where the colonizing group make up the employers and employees and control the land and its resources to the exclusion of the native population.227

Zureik similarly characterizes Israel as a settler colony. Borrowing Heribert Adam's definition of 'settler colonies',228 he writes that unlike 'colonies of exploitation', which were led by a colonizing group that had no intentions to settle permanently in significant numbers in the colony and continues to conduct its affairs in terms of an official mother country, the

'settler colony' cuts off official ties to a sponsoring foreign entity (the mother country which during the three main aliyot was Russia or more generally, Europe229), remain in the country in sizeable numbers (from 13,000-20,000 in 1881 to 610,000 in 1947 via planned immigration and settling the land), and assumes managing its own responsibilities (through

Gershon Shafir is an Israeli Professor of Sociology at the University of California, San Diego. 226 Gershon Shafir, "Land, Labour and Population in Zionist Colonization: General and Specific Aspects" in Uri Ram (ed.) Israeli Society: Critical Perspectives (Tel Aviv: Breirot Publishers, 1993) (Hebrew), 104- 119. 227 Ronen Shamir, the Israeli sociolegal scholar, writes that Shafir's work underestimates the role of colonial Britain in the Zionist settlement process and in doing so ends up with an undeserving distinction between Zionism and imperialist colonialism. See Shamir, Colonies of Law, supra note 116 at 16-17. 228 Heribert Adam, Modernizing Racial Domination (Berkeley: University of California Press, 1972) at 31. 229 Supra note 201. 60 setting up the JNF, the Histadrut, the Jewish Colonial Trust and then all the affiliated political, socio-cultural and economic institutions that would be the fabric for the establishment of a sovereign ethno-religious state).

Zureik expands on the principal traits (and associated effects) that define Israel as a settler colony, which involve first, the imposition of a capitalist economy on traditional peasant social order and its debilitating socioeconomic effects on the latter. Second, is the increasing economic dependency of the native population by placing metropolitan centres in regions populated by the settler population and their agents which has the double-pronged effect of exploitation of the hinterland's resources and maintenance of native labour population in subordinate positions (with economic dominance ensuring political dominance). Third, is the creation of a justificatory ideology based on the dehumanization of the culture and way of life of indigenous population via orientalist rationalizations, masking the native with a negative stereotypical image which is used to justify his exploitation.230 These traits apply with regard to the Naqab Bedouin, equally as they do to other Palestinians in Israel.

Furthermore, as will be studied below, dehumanization via orientalist rationalizations is not isolated to the practice of the State of Israel, but seems a trait of patrimony handed down from the pre-1948 era of the Zionist movement.

A chief component of the colonial settler state pre-1948 was the orientalist realities imposed on the indigenous people. This becomes not colonialism in the traditional sense, which is,

Zureik, Palestinians in Israel, supra note 49 at 28-29. 61 the implanting of settlements on distant territory and the exercise of power and control over a native population to the benefit of the colonisers231 that facilitates their oppression, but a colonialism of the mind. Such a colonialism of the mind can be seen as far more debilitating to the individual's and community's sense of self, security and inherent dignity.

According to Edward Sa'id, the Orient represented a kind of indiscriminate generality for

Europe associated not only with difference and otherness but with the vast spaces, the undifferentiated masses of mostly colored people, and the romance, mystery and exoticism of the East.232 But in addition to being a trivial European fetish about the Orient,

Orientalism was about a relationship of power and domination, of European-Atlantic power over the Orient.233 Sa'id asserts that its policy of not just a general colonial vision but of detail was what made Orientalism effective. Thus Palestine was not only the elusive and abstract idea of a Promised Land but it was a defined territory with defined characteristics, that was extensively surveyed, settled on, planned for and built on, in detail.134

Zionism's principal premise lay in seeing itself as bringing civilization to the uncivilized East, in the fantasy ascribed to the land and in the 'othering' of its native inhabitants, the

Palestinian Arabs. The orientalist dehumanization of the native population facilitated and legitimized their exploitation and dispossession by Zionist settlers.

1 Sa'id, Culture and Imperialism, supra note 187 at 8. 2 Sa'id, 'Zionism', supra note 120 at 7. Edward Sa'id, Orientalism (New York: Vintage Books, 1979) at 5-6 [Sa'id, Orientalism] Sa'id, 'Zionism', supra note 120 at 36. 62 Ahad Ha'am, a leading Eastern European Jewish essayist, elaborated on the conception of

Arabs among Zionists outside Palestine, "Abroad we used to believe that Arabs are a wild desert people, akin to a mule, who do not see or understand what is happening around them".235 The Israeli new historian Benny Morris writes that the Arabs were generally seen by the dim (Jewish immigrants) as primitive, dishonest, fatalistic, lazy, and savage, much as

European colonists viewed natives elsewhere in Africa or Asia.236 In the eyes of Yishuv educator, Yosef Vitkin, the Arab labourer was a submissive servant who may be exploited and who accepts lovingly his master's power and dominion.237 In describing (or more appropriately, ascribing to) the Arabs, Zionist activist and farmer Moshe Smilansky said in

1914, "A semi-savage people, which has extremely primitive concepts. And this is his nature:

If he senses in you power - he will submit and will hide his hatred for you. And if he senses weakness - he will dominate you".238 Bedouin particularly were seen as brave, horse- mounted free spirits which was cause for dim admiration and fear. This resembled British arabo-philia and was most emphatic among the dim of the Second Aliyah.239

Bedouinization,240 the adoption of Bedouin cultural practices to facilitate the settlement

3 Ya'akov Ro'i, "The Relations Between Rehovot and Its Arab Neighbours (1890-1914)" in Daniel Karpi (ed.), HaTziyonut (Tel Aviv University Press/Kibbutz Meuhad Press, 1980) (Hebrew) at 247. 23 Morris, Righteous Victims, supra note 123 at 43. For more on new settler attitudes to Arab Palestinians, see ibid, at 42-45. Gershon Shafir, Land, Labour and the Origins of the Israeli-Palestinian Conflict, 1882-1914 (Cambridge, England: Cambridge University Press, 1989) at 56. 238 Yosef Gorny, "The Roots of the Consciousness of the Jewish Arab National Conflict and Its Reflection in the Hebrew Press in the Years 1900-18" (1976) 4 HaTziyonut (Hebrew) at 96, Morris, Righteous Victims, supra note 123 at 43. 239 Morris, Righteous Victims, supra note 123 at 44. 240 Bedouinization was encouraged by political leaders and settlers. Ben Gurion envisioned Jewish desert people, Jewish Bedouin, who would combine 'the modern' with 'the traditional' cultural skills to settle the Naqab. See David Ben-Gurion, The Negev is Still Waiting (Tel Aviv: The Labour Party Archive, 1954) (Hebrew). Lower rank officials advised Bedouinization to withstand Bedouin demographic hegemony, see Yosef Weitz, My Path to Settling the Country (Jerusalem: Nir, 1960) (Hebrew). Whether they saw 63 process, was practiced by small numbers of Jewish mukhtars241 and field guards who were typically geographically closely situated to Bedouin areas.242

As will be shown in chapter 3 of this thesis, it is this persistent and continued dehumanization - taking the form of orientalist admiration or fear of what they believe 'the other/the Arab/the Bedouin' to be - of the Naqab Bedouin in the Israeli courts that has facilitated and promoted the deligitimisation of their perspectives and the exercise of power and domination over them. As Sa'id says, that is Orientalism - not just the fetish for the exotic other, but fetish for the exotic other that facilitates the exercise of power and domination over them.243 Their misrepresentation in Israeli political culture contributes to this dehumanization and makes them in the eyes of the Israeli establishment (and its general populace), when it comes to rights speak, as deserving less than Israeli Jewish citizens because the 'human' in them has been occluded. From being an indigenous population that was present on Naqab lands prior to the founding of the State of Israel, they have been transformed into illegal squatters encroaching on State land.244 Dehumanization through

Bedouinization as emulation stemming from genuine respect for Bedouin culture, traditions, and livelihood as opposed to behavioural, cultural traits to be adopted as part of an effective settlement process is something I question. I draw attention here to Ben-Gurion's assertion before the Peel Commission in 1937 where he says that Jews were the only nation with historical rights to the land and that no other nation or race could lay a similar claim. See Palestine Royal Commission Report, Cmd. Paper 5479, 289, quoted in Ian Lustick, Arabs in the Jewish State: Israel's control of a national minority (Austin: University of Texas Press, 1980) at 34-35. 241 Village leaders or mayors. 242 A. Efrat, Tales from the Double Sack (Jerusalem: Ministry of Defense, 1992) (Hebrew), B. Meitiv, "The Relationships of Kibbutz Nirim and the Bedouin, 1946-1948," (1977) 8 Notes on the Bedouin (Hebrew) at 23-29, Sason Bar-Zvi, "The First Settlers in Revivim and the Bedouin" (1971) 2 Notes on the Bedouin (Hebrew) at 49-67. Sa'id, Orientalism, supra note 233 at 5-6. 244 Havatzelet Yahel, "Land Disputes between the Negev Bedouin and Israel" (2006) 11:2 Israel Studies 1- 22. For example, in the article Havatzelet writes in reference to the Naqab, 'No wonder it is sometimes 64 ascription of the nomadic to the Naqab Bedouin is described by the Israeli sociolegal scholar, Ronen Shamir. Shamir writes that a host of historians, geographers, reporters, engineers, policymakers, and educators emphasize the nomadic and rootless character of the

Bedouin as lacking the constructive bond with the land that marks the transition from humans in nature to humans in society. It is this nomadism associated with rootlessness and chaos that is the mirror image of modern law,245 a law that Benhabib describes as the

Faustian-Cartesian dream of order, the transparent, precise and planned.246

Morris asserts tliat Zionist orientalist misrepresentation of the Arabs was indicative of the

Zionists not really seeing the Arabs. This stemmed from the routine European colonialist mentality that natives were part of the scenery, objects to be utilized when necessary, and not as human beings with rights and legitimate aspirations. Morris also likens the Zionist blind spot to a self-defense mechanism to avoid being overwhelmed by the sea of Arabs, and as a means to absolve themselves of the guilt they would feel knowing how their divine calling was causing a land crisis and dispossession of the indigenous Arabs. Morris writes that however justified Zionism was by Jewish suffering, it was also tainted by moral dubiousness.247

referred to as the "Wild South." The "wildness" is manifest above all in the illegal construction and the invasion of state lands by some Bedouin.' 245 Shamir, "Suspended in Space", supra note 3 at 236. 246 Seyla Benhabib, "Critical Theory and Postmodernism: On the Interplay of Ethics, Aesthetics, and Utopia in Critical Theory," (1990) 11 Cardozo Law Review at 1437.1 will turn to this point in Chapter 5. 247 Morris, Righteous Victims, supra note 123 at 654. 65 Morris himself was unable to avoid Orientalist undertones in his writing, referring to

Palestinians with phrases like "Arabs were inchoate, disorganized, a politically primitive mass", "It was Europeans versus the Third World", "divisive deformities", "cultural backwardness", and "technological retardation".248 The Israeli sociologist, Tartakower is guilty of similar orientalist rationalizations. He argues against Zionism being equated with colonialism and sees the foundation of Israel as a mission of progress and civilization for a region lacking any.249 Tartakower fails to see how masking the native with a negative stereotype is a characteristic feature of colonialism and its self-indulgent consort, imperialism.

How did Zionism, in being colonialism in its consequences, influence Israeli law? The Israeli sociolegal scholar, Ronen Shamir, offers an analysis of the Israeli courts' treatment of the

Naqab Bedouin250 that offers some clues.251 Shamir asserts that the Israeli courts adopt a

'conceptualise approach to the Naqab Bedouin, whereby "the most accurate and reliable way for knowing reality (hence 'truth') depends on the ability to single out the most distinct elements that constitute a given phenomenon."252 Therefore, the courts' inability to hear the

Bedouin stems from the fact that the law speaks a different language, one that holds strict, predefined notions of time, space, economy, and land ownership. As die semi-nomadic

248 Ibid, at 655-656. 249 Tartakower, "Sociology of Political Life", supra note 187 at 89. For a broader discussion of the imagery in Israeli social science writings on modernism versus traditionalism with regards to Israel and the Palestinian Arabs, see Zureik, Palestinians in Israel, supra note 49 at 82-96. 250 Shamir, "Suspended in Space", supra note 3. 251 See Section 3.3 for a lengthier discussion on the Israeli courts' treatment of Naqab Bedouin land rights cases. 252 Shamir, "Suspended in Space", supra note 3 at 233. 66 pastoral lifestyle of the Bedouin did not fit into the preexisting legal conceptions of these issues, they were simply erased. Israeli law's conceptualism and humanizing mission to the uncivilized resonates with the role of law in colonial contexts, where law was presented as

"the gift we gave them"253 as it sought to achieve control over societies and extract land from precolonial users so as to create a wage labour force of the peasant society, for the ultimate benefit of the colonizers.2541 will engage in a broader analysis of the seemingly incongruous relationship of law and colonialism in the critical legal studies portion of this thesis, chapter

5.

This section's discussion began with defining colonialism as the implanting of settlements on distant territory and the exercise of power and control over a native population to the benefit of the colonisers. By coursing through the work of Zureik, Sa'id, and Rodinson who supported the link between Zionism and colonialism, and Tartakower, Memmi, Avishai and

Lucas who refuted that link, we saw how Zionism was colonialism in its consequences. Shafir's and Zureiks characterization of Israel, or Zionism realized in a sovereign state of and for the

Jewish people, as a pure settlement colony or one in which the Palestinian minority live under internal colonialism, tell of the State as colonialism not just in its consequences, but in its praxis. Furthermore, through the above analysis we are given further hints that we can extend the definition of colonialism to not only being about the exercise of power and control oier a native population, but also to the exdwion, disposession, and displacement of the native population. Ronen Shamir's exploration of the strange bedfellows that law and

253 Fitzpatrick, "Custom as Imperialism", supra note 217. 254 Engle Merry, "Law and Colonialism", supra note 3 at 890-891. 67 colonialism make in the Israeli context will be evidenced through the study of Israeli law, administrative bodies, and policies and the system's relationship with international law, in the following chapters.

Although Zionists believed they were colonizing a land and not a people, their actions directly exacerbated Arab hardships, resulted in Arab displacement from the land and loss of livelihood, and in the long run contributed to the truncated Arab class structure present to this day.255 Zionism may have started out as 'colonial settler' project with socialist and exigent particularities that in a sense absolved it of the colonialism label. Nevertheless, it has transformed, within the framework of the sovereign state of Israel, to being a project in colonialism. It seems that a colonial settler state cannot be just a colonial settler state. If a colonial settler state is to settle and purchase land that other people occupy and make their livelihood from, people will be displaced, dispossessed, excluded and impoverished. If they are to create an economy to the exclusion of a native population, then that population will face economic disenfranchisement. Finally, if it wishes to quell the subsequent dissension or assertion of rights of the native population that follows, it will implement ethnocratic laws and policies, glued together with imperialist narratives to dehumanize the claimants, in the exercise of power and control over them. It then clearly evolves into a project of colonialism.

Supra note 167. 68 As a colonial settler state cannot just be a colonial settler state, Ronen Shamir's cautionary- note on the nuances hidden in the definitional differentiation between colonization/colonialism in relation to Zionism seems apt. Shamir writes that the analytical distinction between 'colonization' versus 'colonialism' can be seen as the naturalization and depoliticization of the first term and the statization of the second term. In ascribing to

Zionism the colonization label, it brings about a moral cleansing to the Zionist project.256

However, in a sense Zionism went beyond just colonization/colonialism in the traditional understanding of the terms. This is because when extending our argument in talking about historic Palestine, Zionist praxis resulted in the ethnic cleansing of 750,000 Palestinian

Arabs, among tliem roughly 84,000 Naqab Bedouin or around 90% of their pre-1948 population,257 and was by degree far worse than colonialism of a land and a people where the indigenous population remains within the borders of the colonized land. Zionism resulted in internal colonialism of the Palestinian minority and with that the Naqab Bedouin, but to the

750,000 Palestinians forced to flee or driven from their homes in the formation of the State of Israel there was not even the 'opportunity' to be colonized - they were simply ethnically cleansed off their land. In this sense, the discussion about 'colonialism' versus 'colonial settler' state seems an overdone and outmoded exercise in semantics, knowing that what

Shamir, Colonies of Law, supra note 116 at 17-18. Shamir here is commenting on Ahronson's distinction between colonization, an essentially geographic phenomenon and colonialism, an essentially political/economic phenomenon. See Ran Ahronson, "Settlement in Eretz-Israel - A Colonialist Enterprise?" in Pinchas Ginosar and Avi Bareli (eds.) Zionism: A Contemporary Debate (Tsionut: Pulmus Ben Zmanenu) (Beer Sheva: Ben Gurion University, 1996) (Hebrew) at 340-375. 57 Falah, "Bedouin Control", supra note 16 at 37, supra note 73. 69 happened in 1948 was far more dystopian that just colonialism of the land, the people, the mind, and the law for the vast majority of Palestine's Arab inhabitants.

Nevertheless, the subject of this study is not the Naqab Bedouin of 1948. Rather, it is the

11,000 Naqab Bedouin that remained post 1948 within the State of Israel and today number roughly 170,000. Therefore, the above exploration on how Zionism pre-1948 can be interpreted as a project of colonialism in its consequences with regards to Palestinians will offer critical clues to the nature of the legal system that exists today in Israel, since it is a system bom of this colonial legacy.

As Chapter 3 looks at the efficacy of using the Israeli legal system to promote, protect and fulfil the land rights of the Naqab Bedouin, we need to keep in mind how Jewish exclusivity, orientalist conceptions, exclusion and oppression as foundational and ongoing elements informing land policy in Israel shapes, influences, and constrains the legal system today.

Then we will be in a better place to estimate the effectiveness of using the Israeli legal system as a valid site of struggle.

70 3 The Israeli Legal System, the Naqab Bedouin and Land

3.1 Contextual History of the Israeli Legal System

In this chapter I will look at what the historical and existing relationship of the legal system has been, and continues to be, with the Naqab Bedouin pertaining to land issues, and will also delve into its approach to Palestinian citizens in general. Following a critical history of the Israeli legal system, the chapter will address the specific legislation, policies and administrative bodies that bear on Naqab Bedouin land rights. This will be followed by case studies on Naqab Bedouin land issues and general land rights cases pertaining to Palestinians in Israel that will address the issues of court culture, the legal system's treatment of the

Naqab Bedouin and Palestinians, its approach to land, and the intersection with political considerations. The case studies will help in identifying the elements of the current system that offer prospects for fulfillment of Naqab Bedouin land rights and the procedural and substantive barriers to such fulfillment.

The purpose behind touching upon the origins of the Israeli legal system and the legal traditions that have influenced and continue to influence it is to provide the larger political and legal context for other issues that will arise in this and subsequent chapters, namely the understanding of 'public purpose' in Israeli law, the legal system's self-representation as a bastion for civil liberties and former Supreme Court Chief Justice Aharon Barak's

71 'constitutional revolution'258, its definition of the state as being 'Jewish and democratic' and how the interplay of these factors have sculpted the ability or inability of the system to promote and fulfill Naqab Bedouin land rights.

As a starting point to this chapter, I find it instructive to turn to the work of the Israeli sociolegal scholar, Ronen Shamir and his book Colonies qfLaw25'* Shamir notes that when discussing the historiography of the Israeli legal system, legal historians and scholars tend to look at the absorption of British mandatory law as an inevitable consequence to law's stability and continuity260 without critically looking at how the colonial law of the British facilitated the Zionist project in the formation of the State. Shamir makes the point early in his book that the Israeli legal tradition is a product of 'dual colonialism', that which was espoused by Britain and by Zionists. This point needs to be kept in mind when looking at how Israeli law is a mix of common law and civil law but fundamentally different from both, shaped by the Ottoman Mejelk codes261 and French jurisprudence during the Ottoman era, the common law and emergency regulations of the British Mandatory era and die essentially common law legal system. Over time, this common law system has seen English influence wane in place of traditional Jewish legal tradition, American references and some civil law sources in the Israeli era.262 This chapter remains cognizant of the colonial underpinnings at

258 Aharon Barak, "The Constitutional Revolution: Protected Human Rights" (1992) 1:1 Mishpat Umimshal: Law and Government in Israel at 9. 5 Shamir, Colonies of Law, supra note 116. 260 Ibid, at 6-7. 261 A comprehensive civil code based on Islamic law which prominently featured in the late 19th century in Palestine. See Yoram Shachar, "History and Sources of Israeli Law" in Amos Shapira and Keren C. DeWitt-Arar (eds.), Introduction to the Law of Israel (Kluwer Law International, 1995) at 3. 262 Ibid, at 1-10. 72 play as told in Chapter 2, and in amalgam with Shamir's Cdomes of Law, places us at a starting point where we can critically engage the legal system.

Drawing on historical accounts from other scholars, Shamir explains that the colonial legacy in the formation of the state deeply affected its governmentality, shaping its civil service, judiciary and legislature, while infusing die "spirit" of British administrative traditions into

Israel's state machinery.263 The Defence (Emergency) Regulations (1945) instituted by the

British Mandate are striking examples of those colonial laws. These emergency regulations enforced censorship, restrictions on freedom of movement, restrictions on freedom of speech and of the press, control of various means of transport, provided for home demolitions, and provided the tools for the expropriation of private property and land.264

They were met by serious opposition pre-1948 by the Hebrew Lawyers Union who issued a statement at a conference in February 1946 in Tel Aviv decrying the regulations as being contrary to the fundamental rights of man, and as undermining law and justice and constituting a grave danger to individual freedom and liberty.265 However, following the formation of the State in 1948, the Defence Regulations remained on the statute books266 and were enforced to, among other things, forcibly concentrate the Naqab Bedouin in a

See Gideon Biger, A Crown Colony or a National Home.The Impact of British Rule on Palestine 1917- 1930, A Historical-Geographical Account (Moshavat Keter o Ba 'lit Leumi: Hash 'pa 'at Ha 'shilton Ha 'briti AlEretz Yisrael 1917-1930 Bchina Geographit-Historit) (Jerusalem: YadBen Avi, 1983) (Hebrew), Jacob Reuveny, The Administration of Palestine under the British Mandate 1920-1948: An Institutional Analysis (Ramat Gan: Bar Ilan University, 1993) (Hebrew), Edwin Samuel, British Traditions in the Administration of Israel, Anglo-Israel Association (London: Vallentine Mitchell, 1957) at 33, cited in Shamir, Colonies of Law, supra note 116 at 7-8. Jiryis, Arabs in Israel, supra note 74 at 7. 265 Ibid, at 3-5. See also Hapraklit (Journal of the Israeli Bar) (February 1946) at 58-64, Bernard Joseph, British Rule in Palestine (Washington: Public Affairs Press, 1948) at 222. 266 Jiryis, Arabs in Israel, supra note 74 at 5-6. 73 closed military zone or reservation (siyag) tinder the Military Administration until 1966 and facilitated the expropriation of their lands.

However, that is not to say that the legal system's colonial legacy necessarily equates it with enforcing an absolute exclusion, displacement, dispossession and oppression of an indigenous people. Rather, as die legal anthropologist Sally Merry Engle has written, even law in colonial contexts provides the colonised with opportunities to resist law's oppressiveness as the legal arena becomes an area of contest, albeit unequal, among the different groups in colonial society.267 At this juncture, it is instructive to turn to the work of the Israeli legal scholar, Holzman-Gazit, who analyses the role of the Supreme Court in land expropriation cases and in general civil rights cases in her book, LardExprcpriation in Israel.26*

The book looks at the three major periods of civil rights jurisprudence in the pre- constitutional era, that is before the passing of the semi-constitutional Basic Law: Human

Dignity and Freedom (1992) and Basic Law: Freedom of Occupation (1992), as a testament to the growth of civil liberties in Israel269 and the increasing opportunities provided to those challenging administrative action.

It is important to note that with regard to the Basic Law: Human Dignity and Freedom

(1992), former Supreme Court President, Aharon Barak has interpreted the law as

Engle Merry, "Law and Colonialism", supra note 3 at 891. 268 Holzman-Gazit, Land Expropriation, supra note 5. 269 Ibid, at 35-54. For more on the civil rights legislation of the 90's and Israel's 'constitutional revolution' led by former Chief Justice Aharon Barak see Chapters 4, 5. 74 encompassing the right to equality,270 although the right is not specifically provided for in the text of the law. The law's opening article provides guidelines for its interpretation and states,

'The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state* .2n Both Basic

Laws cannot challenge existing legislation and are not retroactive.272 Further, amending both the Basic Laws is a fairly easy process under the current system, requiring an ordinary majority in the Knesset. Basic Law: Freedom of Occupation has been changed thrice since it was promulgated in the 1990s.273 The ramifications of these provisions on Naqab Bedouin land rights will be discussed in the context of international human rights law further in

Chapter 4 of this thesis.

Also important to mention is that Israel lacks a written constitution. This is owing to historical barriers to agreement between the secularists and religious over the contours and content a constitution would assume. As a result, a written constitution limiting governmental power, clearly delineating the respective powers of the Knesset and the

270 As quoted in Aeyal M. Gross, "The Politics of Rights in Israeli Constitutional Law" (1998) 3 Israel Studies 80 [Gross, "Politics of Rights"], where he says that Barak in academic writings interpreted "human dignity and liberty" to include equality, freedom of speech, freedom of religion, freedom of art, and freedom of gathering and association, see Aharon Barak, "The Constitutional Revolution: Protected Human Rights" (1992) 1:1 Mishpat Umimshal: Law and Government in Israel (Hebrew) 9. 271 Basic Law: Human Dignity and Freedom, 1992, Sefer Ha-Chukkim, number 1454, 90, Art. 1 (emphasis added). 272 Basic Law: Human Dignity and Freedom, 1992, Sefer Ha-Chukkim, number 1454, 90, Art. 10. 27 Ilan Saban, "After the Storm? The Israeli Supreme Court and the Arab-Palestinian Minority in the Aftermath of October 2000" (2008) 14:4 Israel Affairs 623. 75 judiciary, and containing a bill of rights which would be a firm guarantee of fundamental human rights is lacking.274

According to various Israeli legal scholars,275 the period from 1948 to 1953 signified the attempt of the Supreme Court to receive substantive recognition as an equal branch of government. As a result, the Supreme Court adhered to judicial restraint, with only cautious application of judicial review and instances of interference with the executive, essentially only when the letter of the law was violated.276

The mid-1950's to the mid-1970's was shaped by the 1953 decision of Kd Ha-amv Minister of

Interior when the Court transformed its procedural authority into a moral one, though nevertheless limiting direct confrontation with the executive branch, particularly the security services.277 In KdHa-am, the Minster of the Interior suspended the publication of two Israeli

Martin Edelman, Courts, Politics, and Culture in Israel (Charlottesville: University Press of Virginia, 1994) at 6-12, David Kretzmer, "Constitutional Law" in Amos Shapira and Keren C. DeWitt-Arar (eds.), Introduction to the Law of Israel (Kluwer Law International, 1995). 275 See for example Pnina Lahav, "The Supreme Court of Israel: Formative Years, 1948-1955," (1990) 11 Studies in Zionism at 45-66, Pnina Lahav, "Rights and Democracy: The Court's Performance" in Ehud Sprinzak and Larry Diamond (eds.), Israeli Democracy Under Stress (Boulder, London: Lynne Rienner Publishers, 1993) at 125-151, Ron Harris, "Israeli Law" in Zvi Zameret and Hana Yablonka (eds.), The First Decade 1948-1953 (Jerusalem: Yad Izhak Ben-Zvi, 1997) (Hebrew) at 243-262. 276 Kol Ha'am Company Ltd. v. Minister of Interior, HC, 73/53, 7 P.D. 871 [Kol Ha'am]. Holzman-Gazit, Land Expropriation, supra note 5 at 35-42. Holzman-Gazit cites the Al-Couri case as exemplar of the strict formalism used by the Court to uphold civil liberties during this period. In the case, Naif al-Couri, a Palestinian policeman, was sentenced to a one year administrative detention order for failing to protect Jewish members of Kibbutz Negba during their attack by an Arab mob. On appeal to the Court, the Court noted that the location for detention was not specified as required by Article 111 of the Defence (Emergency) Regulations (1945) and so invalidated the order. See Al-Couri v. Chief of Staff, HC 95/49,4 P.D. 34. See Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California Press, 1997) [Lahav, Judgement in Jerusalem], Stephen Goldstein, "Protection of Human Rights by Judges: The Israeli Experience" (1994) 38 St Louis University Law Journal at 605-618, Asher Maoz, "Defending Civil Liberties without a Constitution - The Israeli 76 communist newspapers that were highly critical of the relationship between Israel and the

United States. The administrative suspension was based on the Press Ordinance (1933), a

British Mandatory enactment for suspension of a newspaper publication by the Minister if he thought it was likely to endanger public peace. The newspapers challenged the Interior

Minister's decision in the High Court and won. The Court ruled that that the right to free speech, a cornerstone of Israeli democracy, had been violated and the newspaper publication was unlikely to endanger public peace, and therefore the suspension order had to be invalidated. The Court innovatively used Israel's Declaration of Independence as an indirect source of law, imported American First Amendment jurisprudence on the principle of balancing interests, and imposed limits on the discretion permitted to administrative actors, and in doing so signified the Supreme Court's role as a guardian for civil liberties.278

Finally, in the period from the mid-1970's and 1980's, the Supreme Court marked itself as activist through recognition of an increased scope for judicial review of administrative action, the imposition of the duty of reasonableness and rationality in the decision-making process, as well as the imposition of the principle of proportionality in administrative action279, which led some to refer to the Supreme Court of the 1980s as the 'New Court'.28'

Experience" (1988) 16 Melbourne University Law Review at 815-836, Allen Zysblat, "Protecting Fundamental Rights in Israel without a Written Constitution" in Itzhak Zamir and Allen Zysblat (eds.), Public Law in Israel (New York: Oxford University Press, 1996) at 47-54, Holzman-Gazit, Land Expropriation, supra note 5 at 35, 42-47. 278 Pnina Lahav, "Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy" (1990) 24 Israel Law Review at 252-258, Lahav, Judgement in Jerusalem, supra note 277 at 107-112, Holzman-Gazit, Land Expropriation, supra note 5 at 42-44. 7 Holzman-Gazit, Land Expropriation, supra note 5 at 35, 48-50. Yoav Dotan, "Judicial Accountability in Israel: The High Court of Justice and the Phenomenon of Judicial Hyperactivism" (2002) 8:4 Israel Studies at 87-106, Menachem Mautner, The Decline of 77 During this period, judicial activism and judicial review led to numerous positive decisions for civil liberties in Israel such as protecting the right to freedom of expression in the elimination of theatre censorship and reduction of film censorship,281 in prohibiting gender discrimination and in ordering women's inclusion in public religious bodies,282 and in protecting freedom of expression through reviewing administrative action in security matters.283 Such pro civil rights rulings by the Court are seen by the Israeli administrative and constitutional legal scholar, Daphne Barak-Erez, as Israel's unwritten constitution or judicial bill of rights.284

However, despite the increasing salience given to civil rights in Israeli law owing to the

Supreme Court's activism, Holzman-Gazit evidences how the Court's performance in land expropriation cases exhibits a consistent tendency of the Court to defer to the executive. An example of judicial restraint in land expropriation cases is the 1952 Dor v Minister of Finance1^ case, where land of Arab Palestinians was expropriated under the Absentees' Property Law

Formalism and the Rise of Values in Israeli Law (Tel Aviv: Ma'agalay Da'at Publishing House, 1993) (Hebrew), cited in Holzman-Gazit, Land Expropriation, supra note 5 at 35-36. 281 Laorv. Films and Plays Censorship Board, HC 14/86,41(1) P.D. 421, Universal City Studios Inc. v. Films and Plays Censorship Board, HC 806/88,43(2) P.D. 22. See Zaharah R. Markoe, "Note: Expressing Oneself Without a Constitution - The Israeli Experience" (2000) 8 Cardozo Journal of International and Comparative Law at 319-346, cited in Holzman-Gazit, Land Expropriation, supra note 5 at 49. 282 Shakdiel v. Minister of Religious Affairs, HC 153/87, 42(2) P.D. 221, Poraz v. Municipality of Tel Aviv- Jaffa, HC 953/87, 42(2) P.D. 309, cited in Holzman-Gazit, Land Expropriation, supra note 5 at 49. In Schnitzer v. The Chief Military Censor, the Court suspended a decision of the military censor to suppress an article criticising the Israeli secret service, the Mossad, owing to the fact that the censor had failed to show how the article could realistically cause serious harm national security. Schnitzer v. The Chief Military Censor, HC 680/88,, 42(4) P.D. 617, cited in Holzman-Gazit, Land Expropriation, supra note 5 at 50. 284 Daphne Barak-Erez, "From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective" (1994-1995) 26 Columbia Human Rights Law Review 309. 285 Dor v. Minister of Finance, HC 180/52, 6 P.D. 908. 78 (1950)286 by the authorities who mistakenly took the petitioners for absentees287. As the authorities had already begun constructing homes for immigrants on the expropriated land at the time they learnt that the petitioners were not absentees, they decided to expropriate the land pursuant to the Land (Acquisition for Public Purposes) Ordinance (1943).288 The Court refused die petitioners' invitation to review the Minister's decision to expropriate the land for a 'public purpose' as Section 2 of the Land Ordinance (1943) gives the Minister of

Finance absolute discretion. Furthermore, the Court although acknowledging that immigrant housing was constructed unlawfully by the authorities since the petitioners were not absentees at the time, decided to treat the authorities actions forgivingly and refused to invalidate an expropriation order that was tainted by unlawfulness and bad faith.289

Holzman-Gazit asserts that although the court of the 1980's was characterized as one that championed civil liberties it was not so when it came to land expropriation cases.290

mb Absentees' Property Law, 1950,L.S.I. number 37 (March 20, 1950). 287 An absentee was anyone who, on or after 29 November 1947 (the date of the United Nations General Assembly resolution to partition Palestine), had been: (a) a citizen or subject of one of the Arab countries at war with Israel, (b) in any of these countries, or in any part of Palestine outside the jurisdiction of the regulations, or (c) a citizen of Palestine who abandoned his or her normal place of residence. Technically, this included virtually all Arabs who vacated their homes during the war, regardless of whether they returned. According to the law, anyone defined as 'absentee' would have all rights in any property automatically transferred to the Custodian of Absentee Property. See Abu Hussein and McKay, Access Denied, supra note 51 at 70. Land (Acquisition for Public Purposes) Ordinance, 1943, Palestine Gazette, Supp., No. 1 at 44 (1943). 289 Holzman-Gazit, Land Expropriation, supra note 5 at 40-41. 290 Ibid, at 50-54. Holzman-Gazit writes that the rulings in Holzman and Karsik demonstrate a Supreme Court in the post-90's constitutional era that has been willing to challenge executive action to a greater degree than witnessed in the past concerning land expropriation cases. In Karsik, the Supreme Court sitting as the High Court of Justice ruled that if the 'public purpose' for which land was expropriated under the Land (Acquisition for Public Purposes) Ordinance (1943) had changed, then that land should be returned to the original owners. However, it stopped short of ruling that the land should be returned to the original owners in this case for fear of setting a precedent for return of expropriated Palestinian lands. Instead, the Court left it up to the Knesset to approve an amendment to the Land Ordinance law that would return expropriated land to original owners if the 'public purpose' for which it was expropriated was not utilised ten years following expropriation. However, this provision would be retroactively applicable to expropriated land for a 25 year period prior to enactment (not pre-1980), and therefore would leave the 79 The eventual question that springs to mind is why has the right to property, a civil liberty like the right to freedom of expression, the right to freedom of association, and the right to due process, historically been aberrant in its status in the Supreme Court's adjudication of civil liberties cases? More significantly for this study is questioning how the land rights of the

Naqab Bedouin fit into the equation. Certainly, gauging the efficacy of the Israeli legal system's ability to protect and fulfill land rights of the Naqab Bedouin extends beyond analysis of die Court's adjudication on administrative action in land expropriation cases.

Rather, in being a meta-composite right, the right to land also includes the right to adequate housing, the right to property and the right to security of tenure. These rights encompass the integrative rights such as the right to health and the right to water.

Therefore, in addition to land expropriation cases, we need also to consider those cases where Naqab Bedouin seek to establish title to the land, seek to challenge home demolitions, and call for the provision of basic amenities such as water, electricity, health services and schools in the unrecognised villages. The purpose of the case studies that follow is to analyze the Supreme Court's rulings on these land cases, preceded first with an overview of specific legislation, policies and administrative bodies that bear on the land rights of the Naqab

Bedouin. majority of land expropriated of Palestinians, which took place since the late 1950's, outside the scope of this provision. Holzman-Gazit writes that by 2007 the bill had not been enacted. Local Planning and Building Commission Kiryat Ata v. Holzman, CA 5546/97, 55(4) P.D. 629, Karsik v. State of Israel, HC 2390/96, 55(2) P.D. 625, Holzman-Gazit, Land Expropriation, supra note 5 at 167-169. For more on Palestinian land expropriated under the Land Ordinance (1943) see Abu Hussein and McKay, Access Denied, supra note 51 at 86-96. 80 3.2 Overview of specific legislation, policies and administrative bodies that bear on the land rights of the Naqab Bedouin

As the Israeli scholars Oren Yiftachel and Alexandre (Sandy) Kedar write, the confiscation of Arab land began during the 1948 war when land was seized either on the basis of emergency regulations or with no legal justification whatsoever.291 After a short period of time, Israel enacted various pieces of legislation to legalize this transfer of land and to facilitate future transfers of land.292

Specific Legislation

Israel's enactment of various legislation to seize, expropriate and reclassify Palestinian refugee and internally displaced land as State owned land was part and parcel of the legal institutionalization of Israel's land regime, a process the Israeli legal scholars, Alexandre

(Sandy) Kedar and Geremy Forman assert was effectively completed by I960.293 The

Cultivation of Fallow Lands and Unexploited Water Sources (Fallow Lands Regulations)294 in

October 1948, which enabled temporary possession of Palestinian land, was the first in a

For example, the illegal sale negotiated by Ben-Gurion and Finance Minister Kaplan in early 1949 of a million dunams of absentee land to the Jewish National Fund. See Ben-Gurion, David, no date, entries from 6 and 13 December 1948, Arnon Golan, "The transfer of abandoned rural Arab lands to Jews during Israel's War of Independence" (1992) 63 Cathedra (Hebrew) 122-154. Ben-Gurion later remarked, "The government does as it pleases with this property". See Ben-Gurion, David, no date, entry of 4 August 1949. All cited in Forman and Kedar, "Israel Lands", supra note 168 at 815. 292 Kedar and Yiftachel, "Land Regime", supra note 89 at 137. 293 For comprehensive coverage on legislative measures undertaken between 1948 to 1960 to transfer Palestinian lands into Israeli state land, see Forman and Kedar, "Israel Lands", supra note 168; also see Abu Hussein and McKay, Access Denied, supra note 51 at 69-96. 294 Fallow Lands Regulations, 1948, Official Gazette, number 27, supplement 2 (October 15 1948), see Forman and Kedar, "Israel Lands", supra note 168 at 814. 81 series of statutes to eventually turn Palestinian land into unrestricted Jewish-Israeli ownership.

Another major piece of legislation was the Absentees' Property Law (1950)295 which created the new legal status of 'absentee'296, defining it in all-encompassing terms. According to the law, anyone defined as 'absentee' would have all rights in any property automatically transferred to the Custodian of Absentee Property297; failure to hand over property was deemed a criminal offence.298 As the government had no intention of expropriating Jewish land, the law contained a provision, without explicitly discriminating language, to exempt

Jews from the status of 'absentee'. Section 27 obligated the Custodian of Absentee Property to exempt absentees who left their place of residence for fear of harm by Israel's enemies or military operations, or were, in the Custodian's opinion, capable of efficiently managing their property without aiding Israel's enemies.299 As a result practically no Jewish Israelis but tens

295 Absentees' Property Law, 1950, L.S.I., number 37 (March 20, 1950). An absentee was anyone who, on or after 29 November 1947 (the date of the United Nations General Assembly resolution to partition Palestine), had been: (a) a citizen or subject of one of the Arab countries at war with Israel, (b) in any of these countries, or in any part of Palestine outside the jurisdiction of the regulations, or (c) a citizen of Palestine who abandoned his or her normal place of residence. Technically, this included virtually all Arabs who vacated their homes during the war, regardless of whether they returned. 297 The Custodian of Absentee Property held enormous administrative and quasi-judicial powers, as well as evidentiary and procedural tools. Property could be seized at his discretion and the burden of proving 'nonabsentee' status fell on the landowners. Kedar and Forman write that the Absentee Property Regulations took inspiration from the British Trading with the Enemy Act (1939). See Martin Domke, Trading with the Enemy in World War 2 (Central Books, New York, 1943) at 469, cited in Forman and Kedar, "Israel Lands", supra note 168 at 815. 298 Abu Hussein and McKay, Access Denied, supra note 51 at 70. 299 Absentees' Property Law, 1950, L.S.I., number 37 (March 20 1950), Section 27, Forman and Kedar, "Israel Lands", supra note 168 at 815. 82 of thousands of Palestinian citizens of Israel were classified as absentees and accordingly had property expropriated.300

Similarly, the legislature passed the Land Acquisition (Validation of Acts and Compensation)

Law301 in 1953, whose true intention was the retroactive legalization of the seizure of land and the payment of compensation.302 As the law provided for expropriation of land not in its owner's possession on 1 April 1952, and as most of the Naqab Bedouin were at that time forcibly concentrated in the siyaghy the authorities, massive transfer of Bedouin lands to the

State occurred.303

The Basic Law: Israel Lands (I960)304 affirmed the non-transferability of Israel Lands in the ownership of the State, the Development Authority and the Jewish National Fund, ensuring perpetual Jewish possession of those lands.

The Planning and Building Law (1965),305 which makes all building outside approved outline schemes illegal, provides the legal basis for the administrative authorities to carry out home

Hillel Cohen, The Present Absentees: The Palestinian Refugees in Israel since 1948 (Jerusalem: Institute for Israeli Arab Studies, 2000) (Hebrew). 301 Land Acquisition (Validation of Acts and Compensation) Law, 1953, L.S.I., number 122 (March 20, 1953). The law applied to all land that was: used for essential development, settlement, or security purposes between 14 May 1948 and 1 April 1952, still needed for one of these purposes, and not in its owner's possession on 1 April 1952. 303 Falah, "Sedentarization", supra note 16 at 79, Maddrell, Bedouin of the Negev, supra note 51 at 4, cited in Tawfiq, S. Rangwala, "Inadequate Housing, Israel, and the Bedouin of the Negev" (2004) 42 Osgoode Hall Law Journal at 439. 304 Basic Law: Israel Lands, 1960, L.S.I., number312 (July 29, 1960). 305 The Planning and Building Law, 1965, L.S.I., vol. 19 330. 83 demolitions in the Naqab. As the unrecognised villages were not included in any formal planning scheme including at the highest level of the National Outline Scheme, all homes are considered illegal and open to demolition, irrespective of the fact that these homes already existed at the time of passing of the law.306 Since the 1970s, thousands of home demolitions have been carried out and between 2001 and 2007 there were 227 home demolitions.307 The

Planning and Building Law contains no provisions requiring officials to offer residents of a demolished home alternative shelter, nor is diere a provision to ensure that those affected will not be rendered homeless after the demolition and neither does the law entitle victims of a demolition to compensation for their losses.308 Furthermore, the extent of judicial recourse or legal remedies for those subject to home demolitions has to be considered in light of the discretion given to the executive in the home demolitions process. The Planning Authorities can issue administrative demolition orders for buildings within the respective planning commission's jurisdiction and such orders require no judicial oversight. The orders allow the authorities to demolish the building 24 hours from the affixation of the order to the building, if the building has been built without a permit, or after 72 hours in all other circumstances.309 This leaves home owners with little time to prepare for the imminent

Abu Hussein and McKay, Access Denied, supra note 51 at 258-259. 307 HRW, Off the Map, supra note 4 at 56, Appendix B, According to the Gazit Report of 2000, there are 24,000 'illegal' buildings in the South mostly in the unrecognised villages, see Gazit Report, Report of the Inter-Ministerial Committee to Examine Illegal Construction in the State of Israel (March 2000) (Hebrew). Home demolitions continued in 2008, most striking was on April 2, 2008, when homes in the unrecognised village of Twayyil abu Jarwal were demolished. This was the fifteenth demolition over the past three years in the village. See Centre on Housing Rights and Evictions (COHRE), Letter to Prime Minister Ehud Olmert, "Housing rights violations in the 'unrecognised villages' in the Negev" (May 29 2008). The Planning and Building Law, 1965, L.S.I., vol. 19 at 330. 309 Other circumstances include building on land that is not zoned for residential use, in an area that does not have an approved master plan, or where the building violates the specifications of that plan. See HRW, Off the Map, supra note 4 at 62. 84 demolition or to appeal the order to the judicial authorities.310 Furthermore, the law provides for the criminalization of the victim of the home demolition, as a person ordered to demolish his own home maybe subject to criminal charges if he fails to follow the court order, with the possibility of fines and imprisonment.311

The Planning and Building Law (1965) also provides for land expropriation in land planning instances by local planning commissions and requiring approval of a District Planning

Commission.312

Following an amendment to the Planning and Building Law in 1981 to prohibit the connection of the electricity, water or telephone networks for a building without license,313

80,000 Bedouin citizens of Israel in the unrecognised villages have been deliberately deprived of basic infrastructure in the efforts of the state to compel the Bedouin to move off the lands they occupy in order to concentrate them in development towns.

The Land Rights Settlement Ordinance (1969)314 classified all rmimt lands as state property unless legal title could be produced. Maimt meaning 'dead' is one of the five categories of land under the Ottoman Land Code of 1858 which remained in effect in Israel until the

310 Ibid, at 71. 311 Justice Shamgar in NatajCooperative Settlement Organization vs. State of Israel, P.D. 38(2) at 558. Holzman-Gazit, Land Expropriation, supra note 5 at 11-13. 313 The Planning and Building Law, 1965, L.S.I., vol. 19 s. 157a. 314 The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283. 85 institution of this law.315 Multiple factors contributed to the inability of the Bedouin to prove title. The Ottoman government's inability to accurately map, surveyor settle title led to an imprecise land registration316 so that by the end of the Ottoman period only five percent of the land in Palestine had been registered.317 Similarly, during the British Mandate the Naqab area was not surveyed and so no reliable records of land classification or registries of land ownership existed, except in and around the town of Beersheba at the end of the Mandate period.318 As the Bedouin had also not formally registered their lands so as to avoid paying

For a fairly detailed overview of the Ottoman Land Code and the treatment of it by the Israeli authorities in land expropriation, see Abu Hussein and McKay, Access Denied, supra note 51 at 104-137, Kedar, "Ethnic Geography 48-67", supra note 58. 316 Dov Gavish, Karka ve-Mapah: me-Hesder Karka 'ot le-Mapat Erets Yeesra 'el 1920-1948 (Land and Map: From Land Settlement to Maps of Eretz-Israel 1920-1948) (Jerusalem: Yad Izhak Ben-Zvi, 1992) (Hebrew) at 32, Haim Zandberg, Hesder Zekhooyot be-Mekarkeen be-Erets-Yeesra 'el ve-be-Medeenat Yeesra 'el (Land Title Settlement in Eretz-Israel and in the State of Israel) (1999) Unpublished PhD Dissertation (Jerusalem: Hebrew University of Jerusalem) (Hebrew) at 102-132, Ruth Kark & Haim Garber, "Mapot-Reeshoom Karka'ot be-Erets Yeesra'el be-Tekoofat ha-Otomaneet (Registration Maps in Eretz-Israel in the Ottoman Period)" (1982) 22 Cathedra 113, Ya'akov Shechter, "Reeshoom ha-Karka'ot be-Erets Yeesra'el ba-Makhatseet ha-Shneeyah Shel ha-Me'ah ha-Yod-Tet (Land Registration in Eretz- Israel During the Second Half of the Nineteenth Century)" (1987) 45 Cathedra 147, cited in Kedar, "Ethnic Geography 48-67", supra note 58 at 933. 317 Avraham Halleli, "Ha-Zekhooyot be-Mekarke'cen: Reka Heestoree-Klalee Shel Heetpat'khoot ha- Keenyan ba-Arets (The Rights in Land: General-Historic Background of Evolution of Property in Israel)" in Avshalom Shmueli et al. (eds.), Artsot Ha-Galeel (The Lands in Galilee) (Haifa: Haifa University, 1983) (Hebrew) at 575, 586, cited in Kedar, "Ethnic Geography 48-67", supra note 58 at 933. 318 See Falah, "Sedentarization", supra note 16 at 75-76, Moses Douchan, Deeney Karka 'ot be-Medeenat Yeesra 'el (The Land Laws in the State of Israel) (Jerusalem, 1952) at 391, Yitzhak Oded, "Land Losses Among Israel's Arab Villagers" (1964) 7 New Outlook 10 at 13. Chapter 2 hinted at the role of the Turkish and British colonial powers in contributing to the present-day land crisis in the Naqab. One example of Britain's juridical role was Britain's Land (Settlement of Title) Ordinance (1928). This ordinance enabled a process to register land in Mandate Palestine, although not all land title in Palestine was settled. Every claim or registration that contradicted the registered land following Britain's settlement of title process was negated and hence the process seemed to erase all previously unregistered rights to the land. Kedar, "Ethnic Geography 48-67", supra note 58 at 938. See also Dov Gavish, Karka ve-Mapah: me-Hesder Karka 'ot le- Mapat Erets Yeesra 'el 1920-1948 (Land and Map: From Land Settlement to Maps of Eretz-Israel 1920- 1948) (Jerusalem: Yad Izhak Ben-Zvi, 1992) at 156-161, Joshua Weisman and Deeney Keenyan, Law of Property (Jerusalem: Hebrew University of Jerusalem, 1993) at 189. 86 taxes and being drafted into the army,319 they could not prove title, and the only option left to them was to prove that said lands were not of the rrwwzt category. The Israeli sociolegal scholar Shamir highlights the "insurmountable time barriers" created by the law. Following registration of the land as State owned, the only means to challenge registration was to appeal to a district court within a short period of time following registration. Second, registration of land with the registrar extinguished all prior conflicting rights unless fraud or technical errors in the registration were proven. Shamir asserts that according to this law the history of the Bedouin ends in 1969, at which time a new legal history begins.320 The el-

Hamshektf21 case studied below in Section 3.3 demonstrates more clearly how this law was crucial to the negation of recognition of Bedouin ownership and possession of historical lands.

Since 1974, Article 6 of the Population Registry Law (1965)322 has been reinterpreted for those born in the unrecognised villages of the Naqab. As a result, the name of the tribe, as opposed to the name of the village, is listed as the place of residence on their identity cards.

The purpose of denying the Bedouin recognition of their place of birth is to prevent the unrecognised villages establishing permanent facts on the ground, to encourage tribalism among the Bedouin, and to facilitate their relocation into development towns. The law's interpretation bears heavily on residents' daily lives, particularly in acquiring services.

319 Furthermore, Bedouin autonomy over their lands was recognised during Ottoman and British times. See Shamir, "Suspended in Space", supra note 3 at 241, Abu Hussein and McKay, Access Denied, supra note 51 at 113. 320 Shamir, "Suspended in Space", supra note 3 at 243-244. 321 El-Hawasheleh v. State of Israel, [1974] CA 218/74, P.D. 38(3) 141 [El-Hawasheleh]. 322 Population Registry Law, 1965, L.S.I. Vol. 19 (Jerusalem, Israel: Government Printer), Article 6 at 288- 297. 87 Therefore, a resident belonging to the Abu Krinat tribe of the unrecognized village of Albat,

17 km from Arad, must travel over 40 km to Dimona in order to claim unemployment benefits, the reason being that the Abu Krinat tribe is registered by the State as being situated close to Dimona.323

The Law for the Acquisition of Land in the Negev (Peace Treaty with Egypt) (1980)324 was enacted following the Israeli withdrawal from the Sinai in 1979. The law expropriated Naqab

Bedouin land in Tal al-Malah so as to relocate a military airport and an army base from the

Sinai on this land. As a result, some 750 families were forced to leave their lands, 80 percent of which were being used for agricultural purposes.325 Abu Hussein and McKay assert that the law was unreasonable as Section 4 said land had to be surrendered within three months,

Section 6 allowed the State to expropriate the land without a court order,326 and compensation was estimated at about 2-15 percent of those amounts granted to Jewish settlers to relocate out of the Sinai.327

As mentioned earlier, The Defence (Emergency) Regulations (1945) used by Israel and adopted from the laws of the British Mandate consist of 170 articles and formed the legal basis for the Military Administration which sanctioned the concentration of the Naqab

PHR, No Man's Land, supra note 103 at 16. See also Regional Council for the Unrecognised Villages (RCUV), Naqab Development Plan: A Step towards Development or a Continuation of Repression? (Arabic) online: http://rcuv.net/ar/report2.asp?id=46. 324 Law for the Acquisition of Land in the Negev (Peace Treaty with Egypt), 1980, L.S.I., Vol. 34 190. 325 Falah, "Sedentarization", supra note 16 at 80. 326 Abu Hussein and McKay, Access Denied, supra note 51 at 89. Maddrell, Bedouin of the Negev, supra note 51 at 11. 88 Bedouin in the closed military zone/reservation {siya$ until 1966. Also, various provisions in the emergency regulations facilitated the expropriation of Naqab Bedouin lands.

Another piece of Mandatory legislation that enables Palestinian land expropriation is the

Land (Acquisition for Public Purposes) Ordinance (1943)328 which, according to Section 2 is based on the Minister of Finance's discretion, and provides for the expropriation of land for

'public purposes' and provides a standard procedure for compensation. The law does not provide for the right to a hearing for the property owner before an expropriation order is issued. Furthermore, oftentimes the 'public purpose' of the expropriation order is not disclosed329 as the law does not obligate the Minister of Finance to do so.330

Regulation 125 of the Emergency Regulations authorizes the Military Commander to declare land 'a closed area', whereby no person is allowed to enter or leave the area without special permission. This particular regulation was used in the case of Iqrit andBir'im (discussed below) so as to vacate Arab citizens from these villages and prevent their return till date.331

In May 2001, the government started demolishing homes in five Naqab Bedouin villages, whose lands had been confiscated for military purposes under the Defence (Emergency)

Regulations. The first order, issued in 1995, was for the villages of Qatamat al-Mitaher and

Land (Acquisition for Public Purposes) Ordinance,1943, Palestine Gazette, Supp., No. 1 at 44. 9 For example in the Avivim case. Avivim Ltd. v. Minister of Finance, FH 29/69, 24(2) P.D. 397. 0 Holzman-Gazit, Land Expropriation, supra note 5 at 11-15. 1 Lustick, Ian, Arabs in the Jewish State (Haifa: Mipraz Press, 1980) at 137. 89 Mizra'a; the second, issued in May 2001, was for Kahelah, Al Bat and Sao'e. 4,600 people lived in those five villages and 72,000 dunams were confiscated.332

As detailed, legislation has been directed towards the Naqab Bedouin community to seize, expropriate and reclassify the lands in their historical use, possession and ownership, thereby dispossessing and displacing Bedouin. Once these lands have been expropriated, Bedouin are excluded from access to them since within the current legal framework of the The Basic

Law: Israel Lands (I960)333 there exists no possibility for returning these lands to the Naqab

Bedouin. With the aim of extinguishing legal possibilities towards recognition of historical use, possession and ownership, The Land Rights Settlement Ordinance (1969)334 was passed.

As the Bedouin have been dispossessed and displaced off historical lands, the law also seems to serve to exert power and control over the Naqab Bedouin in the execution of home demolitions, in the non-provision of basic services, and in restricting adequate and reasonable access to government services. These manifestations of power and control work towards the goal of moving the Naqab Bedouin into government planned development towns against the wishes of the community.

332 Abu Hussein and McKay, Access Denied, supra note 51 at 84. 333 Basic Law: Israel Lands, I960, L.S.I., number312 (July 29, 1960). 334 The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283. 90 Administrative Bodies in the Land Planning System

The purpose of this section is to look at the regulatory and developmental bodies that constitute the land planning system to illustrate how they bear on Naqab Bedouin land rights.335

Developmental planning authorities are essentially public bodies with a mandate to develop land across the country and include the Ministry of Housing, the Jewish Agency 0A) and the

Jewish National Fund QNF). The JA and the JNF are quasi-governmental authorities empowered by the state to develop rural land, road and forestry across Israel. The JA enjoys special status in Israel's land system as conferred by the World Zionist Organization -

Jewish Agency (Status) Law (1952)336 and is responsible for immigrant absorption, rural settlement and has a significant impact on land policy and access to land. Similar to the JNF, the JA has a policy of serving Jewish interests to the exclusion of Palestinians.337 The JNF owns roughly 12% of 'Israel Lands' ('Israel Lands' is 93% of all land in the State) in the amount of 2,542,000 dunams and is only mandated according to its bylaws to lease its land for Jewish settlement.338'339 The JNF is the biggest owner of agricultural land in Israel, and because of its policy of Jewish-only settlement and leasing land to Jews only, access of the

For more on Israel's land planning system, see Rachelle Alterman and Morris Hill, "Land Use Planning in Israel", in Nicholas N. Patricios (ed.), International Handbook on Land Use Planning (Westport, CT: Greenwood Press, 1986), Shulamit Gertel and Hubert Law-Yone, "Participation Ideologies in Israeli Planning" (1991) 9(2) Environment and Planning C: Government and Policy at 173-188. 336 Jewish Agency (Status) Law, 1952, L.S.I. Vol. 7 (Jerusalem: Government Printer) at 3-4. 337 Abu Hussein and McKay, Access Denied, supra note 51 at 154. 338 Jewish National Fund, Memorandum of Association of Jewish National Fund, Article 3a, Government Gazette No. 354 (June 10 1954) at 1196. 339 Abu Hussein and McKay, Access Denied, supra note 51 at 149-153. 91 Naqab Bedouin to such lands is blocked.340 However, it should be mentioned that as a result of the JNF's authority to administer public land, it should also be accountable to the principles of administrative law, including those of non-discrimination and equality. The

Supreme Court held in the Qi'adari41 case, to be discussed further below, that equality is a fundamental value in the State and that every authority in Israel is obligated to treat individuals equally, including in the allocation of state lands.342 Nevertheless, the JNF's policy of Jewish-only settlement and leasing of land only to Jews remains to date and, together with the policies of the JA, the Israel Lands Administration (ILA), government ministries as well as other elements of the statutory system in land-use planning, plays to the severe disadvantage of the Naqab Bedouin.343

The regulatory planning authorities are responsible for urban and regional development and they operate under Israel's Ministry of the Interior and according to Israel's Planning and

Building Law (1965).344 The regulatory planning authorities are composed of 3 hierarchical tiers: a National Planning Board, six District Committees and 130 Local Planning

Committees (LPCs), the LPCs being the only avenue for local community input. Any new housing, whether private or public, must be laid out first in a local outline plan.345 The

Yiftachel, Ethnocracy, supra note 88 at 137-140. 341 Qa'adan v. Israel Lands Administration (2000), HCJ 6698/95, P.D. 54 (1) 258. 342 Ibid, at 258, 212-21 A, para. 21,23. 343 Oren Yiftachel, Planning a Mixed Region in Israel (Aldershot, UK: Avebury, 1992) at 150. The Planning and Building Law, 1965, L.S.I., vol. 19 330. Oren Yiftachel, Planning as Control: Policy and Resistance in a Deeply Divided Society (Exeter: Pergamon, 1995) at 133 [Yiftachel, Planning as Control], Rachelle Alterman, and Morris Hill, "Land Use Planning in Israel", in Nicholas N. Patricios (ed.), International Handbook on Land Use Planning (Westport, CT: Greenwood Press, 1986) at 131-137, Holzman-Gazit, Land Expropriation, supra note 5 at 11-12, Abu Hussein and McKay, Access Denied, supra note 51 at 199-245. 92 unrecognised villages in the Naqab fall under a local planning commission that they are unable to influence. They are deliberately excluded from any formal planning scheme, including at the highest level of the National Outline Scheme, so that all homes are considered illegal, subject to demolition and the non-provision of basic amenities, irrespective of the fact that the villages existed before the Planning and Building Law346 of

1965 which authorizes such actions. All of the Naqab Bedouin development towns together with a small number of Jewish settlements fall under the Shimonim Local Planning and

Building Commission, though this Commission enjoys little or no Palestinian

347 representation.

Oren Yiftachel has looked at Israeli land planning policy as implemented in the Arab town of Majd El-Krum. He makes the argument that planning policy in Israel is a tool to control the Arab minority population in this northern Arab town and to impede their socioeconomic, political and civil aspirations.348 In the reality of deeply divided societies, territorial policies could serve to increase the autonomy of minorities in the political and cultural realms but can also be used as a powerful tool of control over minorities. Therefore, planning policies can be effected so as to impede the emergence of a powerful, regionally based counter culture that would pose a challenge to the hegemonic social and political order championed by the state.349 Yiftachel asserts that the 'planning from above' policies of the

346 Supra note 338. Abu Hussein and McKay, Access Denied, supra note 51 at 209. Yiftachel, Planning as Control, supra note 345. Marvin Mikessel and Alexander Murphy, "A Framework for Comparative of Minority Aspirations" (1991) 81 Annals of the Association of American Geographers 581, Colin H. Williams, "Minority Groups 93 Israeli state that serve to subjugate the Arab minority in Majd Al Krum is representative of planning policy in most Arab villages350 and certainly given the specific legislation, administrative action and policies in the Naqab of concentration in enclosed zones, forced relocation, home demolitions, non-provision of basic amenities, this assertion seems to carry over to the development towns and unrecognised villages there. In the Israeli land planning system, the approval process of outline plans is lengthy and cumbersome351 and especially frustrating for Arabs who have had less access to education, and who enjoy little representation in official authorities, on boards or in key public service positions.352

In the three tier regulatory system there are three other influential bodies, the Committee for the Protection of Agricultural Land (CPAL), the Council for National Parks, Nature

Reserves and National Sites (CNP), and the Israel Lands Administration (ILA). CPAL can stop conversion of all land termed 'agricultural', which is all of Israel's non-urban land, and the CNP has powers relating to land situated near nature reserves or parklands. Although both bodies exert considerable influence on the Arab community's land use, they both lack suitable Arab representation.353

in the Modern State" in Michael Pacione (ed.) Progress in Political Geography (London: Croom Helm, 1985) at 111-157, cited in Yiftachel, Planning as Control, supra note 345 at 127. 350 Yiftachel, Planning as Control, supra note 345 at 138. 351 Ibid, at 133. Ibid, at 155. The role of the High Court in a substantive application of the principle of non­ discrimination and equality in the appointment of Palestinians on planning bodies has been disappointing. The Court refused to order the government towards equitable planning representation of Palestinians in the Northern District Planning Commission where they constituted two persons out of fifteen, in a district where they are over 50% of the population. Head of the Committee of Arab Mayors v. Minister of the Interior, HC 9472/00, Abu Hussein and McKay, Access Denied, supra note 51 at 208, 275. Abu Hussein and McKay, Access Denied, supra note 51 at 209-210. 94 The ILA, which secures its authority from the Basic Law: Israel Lands (I960),354 Israel Lands

Law (I960)355, and the Israel Lands Administration Law (I960)356 manages 93% of the land in Israel.357 The ILA and its board enjoy quasi-governmental status, where they undertake land acquisition on behalf of the State and represent the government in land acquisition.358

The JNF, the quasi governmental organisation that works towards Jewish settlement to the exclusion of Palestinians, enjoys close to equal representation (50% minus one) on the

Council of the ILA.359 The Council of the ILA governs the ILA and lays down its land policy, supervises its activities and approves its budget. The ILA recommends to the

Minister of Finance where to expropriate land and negotiates compensation under the Land

(Acquisition for Public Purposes) Ordinance (1943)360 and it has the authority to evict

'trespassers' on government land without due process.361

The ILA leases plots to the Naqab Bedouin in the development towns ranging in size from

0.75 to 1.5 dunams. Concurrently, it is expected of those moving into the development towns that they will leave or demolish their original home. As a result, those in development towns do not necessarily live in a place of their own choosing, they lease lands from what is

354 Basic Law: Israel Lands, 1960, L.S.I., number 312 (July 29, 1960). 355 Israel Lands Law, 1960, L.S.I., number 312 (July 29, 1960). 355 Israel Lands Administration Law, 1960, L.S.I., number 312 (July 29, 1960). 357 Yiftachel, Planning as Control, supra note 345 at 135, Forman and Kedar, "Israel Lands", supra note 168 at 824-826. 358 Abu Hussein and McKay, Access Denied, supra note 51 at 175. 359 Kedar and Yiftachel, "Land Regime", supra note 89 at 139-140. Land (Acquisition for Public Purposes) Ordinance, Palestine Gazette, Supp., No. 1 at 44 (1943). 361 According to Public Land - Eviction of Trespassers Law, 1981, L.S.I., 105, 142 the ILA can act on a belief that a trespasser has encroached on land to issue an eviction notice that holds the force of a court order. The burden is then placed on the alleged trespasser to obtain another court order to negate the eviction. Abu Hussein and McKay, Access Denied, supra note 51 at 175-176. 95 now state property, and are also bound by the conditions of the lease. The lease contract contains clauses that prohibit the Bedouin tenant from ever owning the land or settling on it permanently, he has a right to lease die land for a period of only 49 years. The Bedouin tenant is also forced to accept that the State has the right to enter his land at anytime and for any purpose. The lessee does not have a legal right to oppose any changes in the size or boundaries of the plot occupied and the state reserves the right under the contract to change the shape and size of the plot at anytime for future development purposes.362 As Ghazi

Falah has made clear, the entire phenomenon of the development towns has not provided the Naqab Bedouin with housing security and stability. Rather, it is a (hasty and inadequate)363 solution only to the problem of the hardship and squalor of living in tin shacks and wooden huts.364

Government decisions regarding land management are considered by the ILA as advisory and non-binding, and the ILA has been characterized by its opaque, centralized control over

93% of die land in Israel.365 The ILA's lack of a proper legal framework in light of its massive responsibility in administering 93% of public land has come under criticism from

Itzhak Zamir, the Israeli scholar of administrative law who asserts that the ILA's practice is not entirely in congruence with the principle of the rule of law.366

Ghazi Falah, "The Development of the 'Planned Bedouin Settlement' in Israel, 1964-1982: Evaluation and Characteristics" (1983) 14:3 Geoforum 311-323. 363 Author's insertion. 364 Falah, "Sedentarization", supra note 16 at 85. 365 Kedar and Yiftachel, "Land Regime", supra note 89 at 139-140. 366 Itzhak Zamir, Administrative Power, vol.1 (Jerusalem: Nebo Publishing, 1996) at 233-238. 96 The ILA established the Bedouin Development Authority (BDA) to reach agreements regarding land ownership claims. However, since then the BDA's authority has extended to provision of services to the Bedouin in the unrecognised villages and in encouraging relocation of die Naqab Bedouin 'dispersion' from the unrecognised villages into the development towns.367 As the BDA is responsible for the provision of water in the unrecognised villages, there is a conflict of interest in providing the Bedouin its water needs as its non-provision is used as a coercive tool to force Bedouin settlement into development towns.368 The BDA has been criticized by the State Comptroller in that although the ILC supervises ILA activities, the ILC has not been a partner in determining the function and supervising the actions of the BDA.369

Administrative bodies have collaborated with serious implication for Naqab Bedouin land rights in the formation of the Israeli land regime's 'closed reservoir', as Kedar and Forman characterize it. The Development Authority (DA) was created to serve as an intermediary body to funnel expropriated Arab land to the state and the JNF. Expropriated land entered a reservoir where according to the Absentees' Property Law (1950) 37° the Custodian of

Absentee Property could sell land to the DA only. The Development Authority (Transfer of

Property) Law (1950)371 enabled the DA to sell land to the state and the JNF alone and The

367 State of Israel, State Comptroller's Report 52B (2002) at 102-103, cited in PHR, No Man's Land, supra note 103 at 12-13. 368 COHRE, Goldberg Committee, supra note 11 at 24. 369 State of Israel, State Comptroller's Report 52B (2002) at 103, cited in PHR, No Man's Land, supra note 103 at 12-13. 370 Absentees' Property Law, 1950, L.S.I, number 37 (March 20, 1950). 71 Development Authority (Transfer of Property) Law, 1950, L.S.I., number 57 (August 9, 1950). 97 State Property Law (1951)372 prohibited the State from transferring ownership of agricultural land to anyone except the JNF, the DA, or a local authority. The JNF was forbidden by its bylaws to sell land at all. This 'closed reservoir' was institutionalized in the passing of the

Basic Law: Israel Lands (I960).373 Therefore, 93% of the land in Israel is in perpetual Jewish-

Israeli possession with no existing possibility for return to Naqab Bedouin hands.

The three-party lease system in land allocation is another means of excluding Naqab

Bedouin access to land. The three parties involved are the ILA as the public landowners' agent, the Jewish Agency, and the Jewish settlement as a legal cooperative with its 'selection committee'. In order to lease a plot of land in such a settlement, a person must be accepted as a member of that cooperative by its 'selection committee', which has the power of selection and veto over acceptance. As a result, the Naqab Bedouin are barred in practice from leasing land within the jurisdiction of regional councils where the three-party lease system exists, which is roughly 89% of the Jewish settlements in the Naqab.374 The implications of the three-party land lease system will be explored further in the discussion on the Qi'adari7i case in Section 3.3.

372 The State Property Law, 1951, L.S.I., number 68 (February 15, 1951). 373 Basic Law: Israel Lands, 1960, L.S.I., number 312 (July 29, 1960). Israel Lands Administration (ILA), Report on the Operations of the Israel Lands Administration for the Year 1964 -5 (Jerusalem: Israel Lands Administration, 1965) (Hebrew), Ruth Kark, "Planning, Housing and Land Policy 1948-1952: The Formation of Concepts and Governmental Frameworks" in Selwyn Ilan Troen and Noah Lucas (eds.), Israel: the First Decade of Independence (Albany, NY: SUNY Press, 1995) at 461-493, cited in Forman and Kedar, "Israel Lands", supra note 168 at 818-823. 374 Palestinian Arabs as a whole are in practice barred from leasing land on 80% of the land in Israel, as this is the extent to which the jurisdiction of regional councils with the three-party lease system stretches in Israel. Kedar and Yiftachel, "Land Regime", supra note 89 at 142-143. Oren Yiftachel, Land, Planning and Inequality: Space Division between Jews and Arabs in Israel (Tel Aviv: Adva Center, 2000) (Hebrew). Yiftachel (2000) cited in Hamdan, "Spatial Judaization in the Naqab", supra note 101. 375 Qa'adan v. Israel Lands Administration (2000), HCJ 6698/95, P.D. 54 (1) 258. 98 Another relevant enforcement administrative body established in 1977 is the Green Patrol, a policing body meant to protect state lands from 'trespassers', which is how the government has come to characterize the 80,000 Naqab Bedouin living in the unrecognised villages. The

State Comptroller's Report of 1980 criticized the heavy handed methods of the Green Patrol for its physical coercion, confiscation of sheep and goats, destruction of crops and dismantling of tents.376

It seems then that the regulatory and developmental bodies that constitute the land planning system in Israel work to exclude Naqab Bedouin from access to land in the JNF-JA-DA constituted 'closed reservoir' of the land regime and in the 'selection committees' in the three-party lease system. In their non-inclusion in planning maps, the Naqab Bedouin are not allowed to effectively influence the planning system and are thereby excluded from the planning process. The community and its place of residence are strictly controlled and coercively dictated by the non-provision of services and the ILA's lease terms in the development towns. Serving as the long arm of the law, die Green Patrol uses heavy handed methods to coerce those in the unrecognised villages to move off the lands they occupy and into development towns.

The Israeli legal scholars, Kedar and Forman, in their historical study of the Israeli land regime, have written that centralized land administration was considered crucial to achieving

Abu Hussein and McKay, Access Denied, supra note 51 at 272, Maddrell, Bedouin of the Negev, supra note 51. 99 state goals.377 As Ilan Pappe has said, and as mentioned in chapter 2, Zionism's focus in the establishment of the State was on demography and land.378 Kedar and Yiftachel assert that following the establishment of the State, similar to other settler states, Israel initiated a comprehensive land and settlement policy. This policy rested on new, powerful legislation that transferred public and Arab land into Jewish-Israeli hands as detailed in the previous section concerning the Naqab Bedouin, and also encompassed spatial restrictions on Arab localities and on Arab development and a 'Hebraization' of the landscape379 through various administrative bodies in the land planning system. They assert that in keeping with the ethnocratic logic of the State, the various administrative bodies in the land planning system operate to allocate public land on the basis of ethnicity. Therefore, Arab citizens are almost completely excluded from public land allocation, receiving only 0.25% of all public land as of

1995.380

Policies towards the Naqab

In 1948, close to 90% of the Bedouin were expelled to Jordan, the Gaza Strip and the

Sinai,381 or were forced to flee.382 The 11,000 Bedouin that remained in the Naqab383 were

Forman and Kedar, "Israel Lands", supra note 168 at 822, A. Akavia, "Administration of land under state supervision", Internal Development Authority memo (Jerusalem: Israel State Archives, January 8 1953) (43) 5480-gim/13 (Hebrew), Yossi Katz, "The Land will not be Sold: The Principle of National Land in the Legislative Process and Israeli Law" (2000) Karka (Hebrew) 48, Yosef Weitz, Letter from Director of the JNF's Department of Lands to Finance Minister Levy Eshkol, "Report on the country's land regime" (Jerusalem: Central Zionist Archives, September 5, 1954) KKL5/22273 (Hebrew). 378 Ilan Pappe, Lecture on "The Ethnic Cleansing of Palestine", University of Toronto, March 26 2008. 379 Kedar and Yiftachel, "Land Regime", supra note 89 at 135-136. 380 Ibid, at 140, Yiftachel, Oren, "Planning and Social Control: Exploring the Dark Side" (1998) 12:4 Journal of Planning Literature at 395-406. 381 Supra note 70. 382%?ranote71. 383 Supra note 72. 100 forcibly concentrated under the Military Administration in the siyag, which made possible the

State expropriation of much of the lands that they traditionally worked, possessed or owned.

As mentioned earlier, between 1968 and the 1980s, the seven development towns for Arab

Bedouin were established in the area of the siyag. The conditions to move to these towns were to relinquish all prior land claims, with the promise of 'recognition', proper provision of services, and land plots to build homes and businesses. The towns were planned with no community participation and promises made have been broken and the amount of land made available in the towns is insufficient to enable construction of adequate housing, or to allow orderly expansion and introduction of the necessary range of urban amenities.384 The towns are also plagued by the highest unemployment levels in Israel, reaching 34.7% in

2003.385

In the 'unrecognised villages', where the other half of the Naqab Bedouin population live,

Bedouin citizens are deprived of water, electricity, adequate health care and education, sewage and refuse disposal, and access roads. Living in 'unrecognised' locales means that residents are unable to obtain building permits and so live under constant threat of home demolition.

Lithwick, Urban Development Strategy, supra note 13 at 11. Swirski and Hasson, Invisible Citizens, supra note 80 at 95. 101 As part of their non-recognition, the villages do not appear on the official maps of the

State.386 Essentially all the unrecognised villages fall within the siyxg (reservation) area, where the Bedouin were forcibly concentrated until 1966. The point to be made here is that the

State itself concentrated a vast number of villages in that area under the Military

Administration. Nevertheless, in spite of the fact that the State forcibly relocated villages there, it fails to recognise them on official maps. The Canadian legal anthropology scholar,

Susan Drummond speaks to these silences in maps in the Israeli context. She writes that modern cartography's assumption that there is a single conceptualization of space through which all others must be assessed is essentially an ethnocentric assertion. That is, the Naqab

Bedouin are denied water, electricity, and the right to a life in dignity, because the State has the only and final word in erasing their presence from official maps. Drummond holds that certain silences in maps parallel silences in law, and in order to promote social justice, we need to attend to those marginalized by both of these disciplines.387 As we move into Section

3.3, we will be made aware of the parallel silences in law with regards to the Naqab Bedouin.

Just as in reading both historical and unofficial maps towards a more just understanding of the Palestinian Bedouin presence on Naqab land, so the law also needs to read, understand, and recognise Bedouin custom, law, practices and tradition, particularly with regard to land, if social justice is to be achieved.

See Central Bureau of Statistics (CBS), The Golden Atlas: The Most Comprehensive, Detailed and Updated Atlas in Israel-Map of Israel (Jerusalem, 2000), online: http://gis.cbs.gov.il/shnaton53/all_israel.jpg. 387 Susan G. Drummond, "Prolegomenon to a Pedestrian Cartography of Mixed Legal Jurisdictions: The Case of Israel/Palestine" (December 2005) 50 McGill Law Journal 899. 102 In keeping with discriminatory land allocation policies and forced dispossession and displacement of the Naqab Bedouin, in November 2002 the State approved a policy of

'individual settlement'388 to protect state lands. The 'Wine Path Plan'389 is a project executed to this effect, as it has provided for 59 individual Jewish settlements in the Naqab, stretching over 81,000 dunams of land,390 which is more than the land mass granted to the seven

Bedouin townships that house 90,000 Bedouin.

In April 2003, the government announced its 'Decision Regarding the Bedouin Sector in the

Negev', also known as The Sharon Plan, a five-year MS 1.175 billion plan (roughly US$295 million), which aims to "alter and improve the situation of the Bedouin population in the

Negev." The plan's policy guidelines are directed towards: (i) contesting and settling ownership claims and land arrangements; (ii) enforcing the state's rights to land and enforcing the planning and building laws by carrying out home demolitions and evictions;

(iii) completing the development and infrastructure of the seven planned Bedouin towns

(though funds allocated are far from sufficient); and (iv) the planning of the seven villages in the process of being recognized. Approximately 40% of the budget is allocated for home demolitions, evacuations, and compensation for those who relinquish land ownership claims.

The ILA estimates that the number of unlicensed structures in the unrecognized villages is

'Individual settlements' are generally inhabited by a single Jewish family provided with hundreds, even thousands, of dunams of land for their exclusive use. 389 Supra note 99. 390 Supra note 100. 103 roughly 60,000, including 25,000 homes and the Interior Ministry puts this figure at 30,000 homes.391

In November 2005, the government announced The Naqab Development Plan. With a budget of 70 billion MS (roughly US$18 billion), the plan envisions to develop the Naqab by increasing its population from 535,000 to 900,000 over ten years. The aim is to alter the

Naqab's demography by concentrating the Bedouin in congested urban areas so as to facilitate Jewish population growth and development.392

Former Prime Minister Ariel Sharon's remarks on Jewish settlement projects in the Naqab and the Galilee, in order to 'strengthen the periphery' at the expense of the regions' Arab inhabitants, offer some rationalization for the above land policies in the Naqab. At a government meeting held on 21 July 2002 Sharon asserted that Jewish settlement is a necessity so as to ensure a reserve of land for future generations and that if Jews do not settle the land, someone else will.393 Sharon's words very nearly echo those made by Zionist leader, David Ben-Gurion in 1942. Prior to there being any significant settlement in the

Naqab, Ben-Gurion wrote that the Naqab was becoming increasingly central to Zionist

State of Israel, State Comptroller Report 52B (2000) at 111 (Hebrew), Adalah - Legal Center for Arab Minority Rights in Israel, Report to the United Nations Economic and Social Council (ECOSOC), UN Doc. E/CN.4/2006/NGO/1241 (March 2006), Hamdan, "Spatial Judaization in the Naqab", supra note 101 at 3- 4. 392 Adalah - Legal Center for Arab Minority Rights in Israel, Report to the United Nations Economic and Social Council (ECOSOC), UN Doc. E/CN.4/2006/NGO/1241 (March 2006). 393 D. Bachor, "The Government Approved the Establishment of 14 New Community Settlements", Ynet, (July 21, 2002) (Hebrew), cited in Hamdan, "Spatial Judaization in the Naqab", supra note 101 at 2. 104 settlement and political enterprise394 and that settlement in the region should be guided by the JNF policy of 'outward expansion' aimed at acquiring land where ownership was minimal or nonexistent.395 This was part of the goal to influence future borders in favour of the Jewish state if Palestine was to be partitioned.396

Israel's current national Master Plan, known as TAMA 35, fails to address the needs of the

Bedouin population397 and ignores the existence of the unrecognized villages, which are not even marked on the plan's maps.398

The regional master plan for metropolitan Beersheba is the TAMA Plan 4/14/23. Like

TAMA 35, it ignores the existence of the unrecognised villages and fails to resolve their planning status. Adalah - The Legal Center for Arab Minority Rights in Israel raised a number of arguments with the National Council for Planning and Building (NCPB) on 31

October 2007 in regard to the plan. Adalah argued that the plan was formulated with a complete disregard for the immediate needs of the Arab population (who account for 26% of the Naqab's population)399, the current disparities between the Arab and Jewish communities in the region, and the future development needs of its Arab citizens. One of the proposals in the metropolitan plan aimed at resolving the issue of Arab Bedouin settlement in the unrecognized villages is to designate 'a combined agricultural rural

394 Tuten, "JNF in Palestine", supra note 65 at 208. 395 Ibid, at 261. 396 Ibid. 397 Integrated National Master Plan for Building, Development and Preservation - TAMA 35 (approved at the end of 2005). 398 HRW, Off the Map, supra note 4 at 42-43. 399 Ilan Peleg, "Jewish-Palestinian Relations in Israel: From Hegemony to Equality?: Palestinian-Israeli Relations" (2004) 17:3 International Journal of Politics, Culture, and Society 415. 105 landscape area' or 'search area', i.e. an area in which solutions to settlement-related issues are sought. Adalah argued that under the plan, only 28% of the 306,000 dunams on which the unrecognised villages stand will be included; the rest will be excluded. Furthermore, as the

'search area' in the plan has infrastructural deficiencies, environmental constraints and other general developmental limitations, it will not provide a real solution to Naqab Bedouin settlement.400

For two years from 2002-2004, the ILA sprayed over 30,000 dunams of wheat crops with herbicides in the Naqab as they claimed that the crops were illegally planted on State owned land. These were part of the efforts to force Bedouin off their historical lands in the unrecognised villages and into developmental towns. Not only was the spraying operation tainted by legal and moral dubiousness as the ILA had no authority to conduct aerial spraying to destroy crops, it also caused a number of health related problems for the humans and animals affected.401

The government began settlement of title operations as Bedouin were encouraged to submit land ownership claims. Accordingly, 3,220 claims were submitted dealing with 776,856

Adalah - Legal Center for Arab Minority Rights in Israel, "Adalah Submits Objection against Master Plan for Metropolitan Beer el-Sabe as it Violates the Rights of Arab Residents of the Naqab to Dignity, Equality and Suitable Housing", 42 Adalah Newsletter (November 2007). Adalah's objection letter was supported with the expert opinion of Dr. Yosef Jabareen, a senior lecturer at the Technion University. Also see HRW, Off the Map, supra note 4 at 46-47. 401 Arab Association for Human Rights (HRA), By All Means Possible: Destruction by the State of Crops of Bedouin Citizens in the Naqab (Negev) by Aerial Spraying with Chemicals (2004), Abu Hussein and McKay, Access Denied, supra note 51 at 272-273. 106 dunams,402 of the 2 millions dunams actually in historical use by them. In negotiating a compromise agreement with the Bedouin, the government agreed to recognize 20 percent of land claims if the Bedouin could prove ownership. 30 percent of the total claim would be covered by compensation at 65 percent of the land value. The remaining 50 percent of the land was to be expropriated.403 The offer was equated with 'aggravated robbery' for the

Bedouin.404 In the wake of the 1977 election of a right-wing government, the negotiations on the land issue in the Naqab were suspended indefinitely and the government instead opted for relocation from and compensation for the lands in question.405 In April 2003, as the government had done diirty years ago, it filed counter-claims lawsuits against the Bedouin who were said to be uninterested in the government's 'generous' compromise.406 As of June

2006 the government had served Bedouin with 170 counter-claims lawsuits covering an area of 110,000 dunams; in every case where the courts have already passed judgment, they have ordered the land to be registered as state owned.407

402 Association for Support and Defence of Bedouin Rights in Israel, Master Plan for the Bedouin Population in the Southern District (1990) at 19-20, Abu Hussein and McKay, Access Denied, supra note 51 at 260, footnote 15. 403 Falah, "Sedentarization", supra note 16 at 76-77. 404 Ibid, at 76. 405 Abu Hussein and McKay, Access Denied, supra note 51 at 260, Falah, "Sedentarization", supra note 16 at 77. 406 In April 2003, the Special Ministers Committee for the Non Jewish Sector ordered the ILA to file counter claims against the lands claimed by the Arab-Bedouins. See Negev Coexistence Forum for Civil Equality, "The Arab-Bedouins of the Naqab-Negev Desert in Israel" (2006) at 7. The ILA refers to its 'generous' offer to the Bedouin several times on its website. See http://www.mmi.gov.il/static/HanhalaPirsumim/Beduin_information.pdf. 407 Negev Coexistence Forum for Civil Equality, "The Arab-Bedouins of the Naqab-Negev Desert in Israel," (2006) at 8, HRW, Off the Map, supra note 4 at 19-20. Another policy by the government has been the refusal to establish agricultural villages for the Naqab Bedouin,408 for whom land shaped a livelihood based on cattle, herds, rain-fed agriculture, and commerce.409 A 1992 survey on preferred occupations for the Naqab

Bedouin show that 77.8 percent of the Bedouin prefer to live in a settlement based on agriculture or shepherding than in an urban locality.410 Bedouin engagement in agriculture is discouraged as land is leased for short terms, there is insufficient allocation of water for irrigation, and the Green Patrol harshly penalizes agricultural practices that take place without permission. Furthermore, pasture land is strictly controlled and compliance is closely monitored. As a result of dispossession from their lands, Bedouins are largely dependant on land leases to pursue their agricultural imperatives. The Israel Lands Council, the decision making body of the Israel Lands Administration, allocates land to the Bedouin on this basis.411 This body operates with little transparency in its decision-making procedures, and only short-term leases are granted and never to those with existing land claims. Furthermore, the plot leased rotates yearly thereby preventing Bedouin from forming any permanent ties to the land such as construction of permanent structures, planting trees and making other general improvements.412

Abu Hussein and McKay, Access Denied, supra note 51 at 263-265. 409 Ben-David, "Negev Bedouin: Solution Proposal", supra note 34 at 45-54. 410 Association for Support and Defence of Bedouin Rights in Israel, Bedouins in the Negev: Attitudes and Aspirations (Musmus, Israel: DUMA Institute, 1992) at 26, cited in Abu Hussein and McKay, Access Denied, supra note 51 at 263. 411 Israel Lands Council (ILC), Decision 29 (August 1967), Decision 64 (28 October 1968), cited in Abu Hussein and McKay, Access Denied, supra note 51 at 264. Abu Hussein and McKay, Access Denied, supra note 51 at 264. 108 Since 2002, the government has made efforts to recognise a number of unrecognised villages, though the non-provision of basic services and home demolitions continue for the majority of villages in the Naqab, which remain unrecognised. In December 2003 the

Ministry of Interior created the Abu Basma Regional Council, which was officially launched on February 3,2004 and placed in charge of running newly recognised Bedouin villages.413

On July 18,2005, the Ministerial Committee on the Non-Jewish Sector announced a development plan for the Abu Basma Regional Council, which was placed in charge of nine newly recognised Bedouin villages. The government promised to invest MS 470 million

(US$118 million) over three years (2005-08) to develop education, health, employment, and social services and to provide utilities, infrastructure, housing, and agricultural lands.414 Yet government ministries have handed over little of this money. In 2005, Abu Basma was supposed to receive MS 30 million from the ILA for planning and construction, MS 14 million from the Ministry of Transport for building roads, and MS 4.6 million from the

Ministry of Health for constructing and maintaining health facilities. In fact, the council received only MS 210,000 for construction and planning, MS 56,000 for sanitation, and

MS 318,000 for water infrastructure.415 Each newly recognized Bedouin village has representatives sitting on the Abu Basma Regional Council, but the villagers did not

413 HRW, Off the Map, supra note 4 at 48-49. 414 Prime Minister's Office, Press Release, "Comprehensive Development Plan for Abu Basma Regional Council Approved" (July 18, 2005), online: http://www.pm.gov.il/PMOEng/Archive/Press+Releases/2005/07/spokmesl80705.htm 415 Planned allocations appear on Prime Minister's Office, "Budget Complements for Abu Basma Regional Council" Government Decision 3956 (July 22, 2005), online: http://www.pmo.gov.il/PMO/Archive/Decisions/2005/07/des3956.htm (Hebrew). Abu Basma financial activity on Ministry of the Interior, "Annual Supervised Financial report For Regional Council Abu Basma", Department for the Inspection of Local Authorities (September 28, 2006), online: http://www.moin.gov.il/apps/pubwebsite/MainMenu.nsf/ (Hebrew), HRW, Off the Map, supra note 4 at 45. democratically elect their representatives, who were instead appointed by government officials. The Council also lacks adequate Bedouin staff and is headed by a ministry- appointed Jewish mayor who runs the council from a Jerusalem office.416

The most current policy plan for the Bedouin is in the Goldberg Committee, named after the retired Supreme Court judge and former State Comptroller, Eliezer Goldberg. The

Authority for the Residential Settlement of the Bedouin in the Negev was established by

Cabinet Resolution No.1999 of 15 July 2007 within the Ministry of Construction and

Housing. The Ministry of Construction and Housing state that the goal is "to structure the residential settlement of the Bedouin in the Negev within approximately 5 years", with secondary goals including "to resolve the issue of land ownership claims" and "for every

Bedouin in the Negev to reside in a legally regulated residential location".417 The Goldberg

Committee is charged with submitting policy recommendations to the government regarding

Bedouin settlement arrangements in the Negev over the course of six months.418 The

Committee headed by Goldberg includes three government representatives, nominated by the Prime Minister, the Housing Ministry and the Finance Ministry, and four public

416 When the Ministry of Interior for the Southern Region, Dudu Cohen, was asked why community organizations were not consulted in hiring village representatives on the Council, he retorted, "Unfortunately the organizations do not represent the residents ... [the council and the police] make recommendations based on their knowledge of the structure of the tribe, the family, the influential persons of the community, and they know them all very well." Knesset Internal Affairs and Environment Committee, Protocol of November 6, 2006, Meeting on Master plans of Bedouin settlements in the Negev and home demolitions, online: http://www.knesset.gov.il/protocols/data/html/pnim/2006-ll-06.html (Hebrew), HRW, Off the Map, supra note 4 at 48-49. Ministry of Construction and Housing, Presentation, Residential Settlement of the Bedouin in the Negev: Current Situation, Policy and New Organizational Structure (April 2007). Cabinet Resolution No. 1999, Establishment of an Authority for Bedouin Settlement Arrangements in the Afegev(Iulyl5 2007). 110 representatives, appointed by the Minister of Construction and Housing, two of whom are

Bedouin.419 However, there is not a single representative from the unrecognized villages on the Committee.420 The Naqab Bedouin community, understanding that the State is not concerned with Bedouin livelihood given the history of policy plans (Sharon Plan, Wine Path

Plan, TAMA Plan 4/14/23 Beersheba Metropolitan Plan) to force Bedouin off their land and concentrate them in development towns, given the lack of genuine Naqab Bedouin representation on the Goldberg Committee, and comprehending that the Committee's six- month long assessment to recommend a 'solution to the Bedouin issue' is an unreasonable goal, have formed an alternative committee that will provide the community's issues to the

Committee. This alternative committee will be headed by former Supreme Court Judge Abd il-Rahman Al-Zo'abi.421 Among the recommendations suggested to the Goldberg

Committee are those by Oren Yiftachel. Yiftachel calls for a historical recognition of traditional land use and ownership, resolving the land ownership issue, recognition of all the unrecognised villages and the adequate provision of services to them, and planning of villages with municipal representatives.422

419 The two Bedouin on the Goldberg Committee are Faisal el-Huzayel, Deputy Mayor of the development town Rahat and Ahmad el-Asad, head of municipality of the development town Laqiya. See Regional Council for the Unrecognised Villages (RCUV), RCUV Requests Comment to the Goldberg Commission regarding Bedouin Settlement in the Negev (January 24 2008) (Arabic). 420 COHRE, Goldberg Committee, supra note 11 at 22. 421 "Conference for Land Owners Supporting the Establishment of a Popular Committee headed by Retired Judge Abd il-Rahman Al-Zoa'bi", Akhbar al-Naqab (March 25 2008) (Arabic), "Freezing of Demolition Orders Until the End of the Goldberg Committee's Work", Akhbar al-Naqab (January 29 2008) (Arabic), Golan, Patricia, "Bedouin in Limbo", Jerusalem Post (December 24 2007). 422 Oren Yiftachel, "The Goldberg Committee and its Consequences", Akhbar al-Naqab (June 17 2008) (Arabic). Ill Ghazi Falah asserts that contrary to claims by the government that its policies towards the

Naqab Bedouin stem from an intention to settle a previously highly mobile population, as the Bedouin were already fully sedentarized prior to government settlement efforts, government policy towards the Naqab Bedouin more accurately reflects efforts to evict this population from its lands and to resettle them in development towns.423 This is in keeping with Israeli historian Ilan Pappe's assertion that Zionism's focus in the establishment of the

State was to focus on demography and land - the maximum expanse of it and the greatest concentration of Jews on it.424 The policies outlined above are reflective of government efforts towards this goal.

In conclusion, the State has created exceptionally formal rules in legislation, administrative bodies and policy in the legitimation of its exertion of power and control over the Naqab

Bedouin that has translated into their exclusion, dispossession and displacement. This has been done in keeping with the goal of exercising dominion over land and establishing a

Jewish demographic majority in the south, very much in line with the thinking of the Zionist movement's protagonists prior to State formation. It seems then, that the destiny for 'the wretched of the earth',425 the Bedouin, is to become the wretched offlxhe. earth. And once the

Bedouin disappear and the Naqab is redeemed,426 we can see how it could become legitimate in the eyes of the legal system, because it will have been done legally.

423 Falah, "Sedentarization", supra note 16 at 72. 424 Supra note 121. Reference here to Frantz Fanon's postcolonial chef-d'oeuvre on the Algerian struggle against French colonial rule. See Fanon, Frantz, The Wretched of the Earth (New York: Grove Press, 1963). 426 Shamir, "Suspended in Space", supra note 3 at 254. 112 The above exploration of the legislation, policies and administrative bodies that bear on

Naqab Bedouin land rights has allowed for die pieces to come together and has answered the question posed in the introduction, on how it all became so ugly. Law played, and continues to play, a central role in extinguishing land's truth in the Palestinian Bedouin context. The question remains, in spite of law's role as an agent of collusion in erasing the relationship the Naqab Bedouin had with the land, do its rules, principles and standards nevertheless allow for the fulfillment of some, or at best all, aspects of the entire prism of land rights of die Naqab Bedouin? I will now turn to court adjudication, particularly

Supreme Court adjudication, in Naqab Bedouin and Palestinian land rights cases.

113 3.3 Naqab Bedouin Land Rights Case Studies and the Role of the Supreme Court

As demonstrated in Section 3.1, the Supreme Court has historically tended to defer to the executive in land expropriation cases. The purpose of this section is to analyze the Supreme

Court's rulings on Naqab Bedouin land rights cases where Bedouin seek to establish title to the land, seek to challenge home demolitions and call for the provision of basic amenities such as water, electricity, health services and schools in the unrecognised villages. In addition, two 'landmark' decisions427 on Palestinian land rights will also be studied, the Iqrit andBir'im418 case and the Qt'adan429 case. The purpose of these case studies is to question, in light of the legislation, policies, administrative bodies and the land planning system that negatively bears on Naqab Bedouin land rights, how much faith we can realistically put in the Courts in seeking social justice for the Naqab Bedouin.

The Israeli Supreme Court serves as an appellate court, hearing appeals from district courts and as a High Court of Justice (HCJ or High Court) over disputes between individuals and the state in matters that are not within the jurisdiction of other courts and tribunals. As a

High Court of Justice, the Supreme Court serves as an administrative court and supervises governmental activities to ensure that public officials and state agents do not abuse their power. The Court is able to grant petitioners immediate relief and to issue orders and

427 For how 'landmark' cases serve as a tool of legitimation for the legal system, see Ronen Shamir, '"Landmark Cases' and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice" (1990) 24:3 Law & Society Review 781 [Shamir, "Landmark Cases"]. 4 8 Daud v. Ministry of Defence, HCJ 64/51, P.D. 5, 1117, Palestine Yearbook of International Law, Vol. II (1985) 121. 429 Qa'adan v. Israel Lands Administration (2000), HCJ 6698/95, P.D. 54 (1) 258. 114 injunctions that may compel the government to undertake a certain action or may prevent it from taking an intended one.430

Probably the most striking case that deals with Naqab Bedouin land rights is the el-

Haimsheleh431 case. In 1984,10 years after 13 Bedouin appellants from the al-Hawasheleh tribe lost their case in the Beer Sheva district court, the Supreme Court upheld the district court's judgment. The appellants were calling for recognition of ownership and possession over historical land that the State had referred to as rrmmfa and in 1969 had transferred to

State ownership.

The two requirements to classify land as rmimt were that i) the land was so distant from any town or village that a person who used the loudest voice could not be heard there (later interpreted to mean a mile and half away), and ii) land was barren and not held by anyone or set aside for anyone by the authorities. The State then relied on the Land Rights Settlement

Ordinance (1969)433 that abolished the rrmmt category and stipulated that all lands would be state property unless a formal legal title could be produced. The State noted that the last possibility to gain legal title for rrmmt lands was in 1921 according to the The Mawat Land

Asher Maoz, "The Institutional Organization of the Israeli Legal System" in Amos Shapira and Keren C. DeWitt-Arar (eds.), Introduction to the Law of Israel (Kluwer Law International, 1995) at 34, Shamir, "Landmark Cases", supra note 427 at 784. 431 El-Hawasheleh v. State of Israel, [1974] CA 218/74, P.D. 38(3) 141. 432 Mawat meaning 'dead' is one of the five categories of land under the Ottoman Land Code of 1858, which remained in effect in Israel until the late 1960s. See The Ottoman Land Code, supra note 58, Granott, Land System in Palestine, supra note 56 at 91-93, Abu Hussein and McKay, Access Denied, supra note 51 at 104-137. The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283. 115 Ordinance*3* introduced by the British Mandatory authorities. As the Bedouin had not formally registered their lands435 and so could not prove title, the only option left to the claimants was to prove that said lands were not of the mmat category so as to invalidate registration of the land as State-owned.

The Court attempted to determine the strength of the appellants' claim that their land was not of the mzwzttype by evaluating the two categories that determine its status. The Court concluded that the closest village or town to the lands in question was the Jewish town of

Dimona, which was thirty kilometers, or twenty miles, from the land. However, as Dimona was not established until after 1948, the nearest settlement was the metropolitan centre, Beer

Sheva. As Beer Sheva was even further than Dimona from the claimed land, the Court concluded that this fact strengthened the State's position. The Court denied that either the settlement of Kurnob or the village of Seer counted as a town or village. With regard to

Kurnob, the Court held that it did not count as a settlement or town since it had a police

station and a Bedouin encampment and nothing more. Beyond that, Kurnob was ten kilometers away from the land according to witnesses. The appellants claimed that in the 19th

century their fathers came from the Bedouin village of Seer, which was less than a mile and a

half from the land. However, this was disproved. The Court relied on a description made by

people who had traveled across the Naqab in the previous century, according to which in the

434 The Mawat Land Ordinance, 1921, 38 Official Gazette 5 (March 1 1921). See Section 1.2 supra for further discussion on the ordinance and its application in Mandatory and Israeli periods. 435 Bedouin had not registered their lands to avoid paying taxes and being drafted into the army. Furthermore, Bedouin autonomy over their lands was recognised during Ottoman and British times. See Shamir, "Suspended in Space", supra note 3 at 241, Abu Hussein and McKay, Access Denied, supra note 51 at 113. See also Section 3.2, under 'Specific Legislation'. 116 area of Seer was no village or agriculture; all there was there was a Bedouin tent encampment, wild plants, and barren desert.436 The Court also drew on the work of

Palmer437, a British traveler, who reported on his 1869-1870 expedition in the Naqab, during which time he closely studied the region. Palmer reported that he found a wasteland, ruins of antiquities, and Bedouin nomads who did not work the land in any particular manner, and did not plough the land or work in agriculture at all. Palmer also criticized how when the rains descended and there was a natural flora, the Bedouin used the water for their sheep and not for agricultural purposes. The Court concluded that Bedouin oral testimonies conveying historical presence on the land placed a distant second in terms of reliability from 'expert witnesses'. The Court then added that "if we add to all of this the moving nature of the

Bedouin tribes and the fact that the area in general lacks rain for most of the year, we can conclude that the first instance [land is more than a mile and a half away from a town or village] is compatible to the reality of the objective situation that characterizes the place."438

In affirmation of the barren status of the land and the fact that it was not revived by the

Bedouin, the Court asserted that the Bedouin did not define the land that they were working

- they did not have borders or signs marking borders. Drawing from Moshe Dukhan's book,

Land Lam in the State cfIsrael™ the Court said that the Bedouin could not prove that they did work the land or revive it in the legal sense, since they did not seed, plant, plough,

436 El-Hawasheleh v. State of Israel, [1974] CA 218/74, P.D. 38(3) at para. 4. 43 Edward Henry Palmer, The Desert of the Exodus: Journeys on Foot in the Wilderness of the Forty Years' Wanderings (New York: Harper and Brothers, 1872) [Palmer, Desert of the Exodus]. 438 El-Hawasheleh v. State of Israel, [1974] CA 218/74, P.D. 38(3) at para. 5. 439 Moshe Dukhan, Land Laws in the Land of Israel (Jerusalem: Dfus HaPoalim, 1925) (Hebrew). 117 construct and fence the land, nor did they clear stones or make general improvements to bring about a permanent change in the land. Drawing on a Mandatory judgment by Judge

Blake Reid cited in Dukhan's book concerning the revival of mawat land, the Court gave partial credence to the idea that working the land needs to be continuous and non-stop so that the nature of the land will be changed from a desert into a paradise.440

Concluding that the land was more than a mile and a half away from a town or village and that it was barren confirmed the mmut status of the land and the Court upheld the district court's judgment in favour of the State.

The judicial reasoning was exemplar of exceptional deference to concepts that were foreign to the reality on the ground and certainly to the pastoral lifestyle of the Bedouin.

Accordingly, the response of the Court was that Bedouin oral testimonies conveying presence on the land placed a distant second in terms of reliability from "expert witnesses", including the person of Palmer, a 19th century British traveler that toured the area. It is worth noting that Palmer's expedition to the Naqab region was funded by the Palestine

Exploration Fund,441 which was established to promote archeological and historical research on Biblical Palestine for illustrations of the Bible.442 In referring to the Bedouin, Palmer wrote, "Agriculture might be made a means of improving the condition of the Arabs; indeed, the only other method of attaining this end would be to civilize them off the face of

440 El-Hawasheleh v. State of Israel, [1974] CA 218/74, P.D. 38(3) at para. 6. 441 Palmer, Desert of the Exodus, supra note 437 at 231. 442 Palestine Exploration Fund, Twenty-one Years' Work in the Holy Land: (A Record and Summary) June 22, 1865 - June 22, 1886 (London: Alexander P. Watt, 1889) at 7-8. 118 the earth altogether... The Bedawi... wherever he goes, he brings with him ruin, violence, and neglect".443 Palmer also dismissed admiration for the Bedouin race as being a waste, and so similar to the "sympathy already wasted on the Red Man of North America".444

Nevertheless, by the court's reasoning, the written word of a Western traveler like Palmer who had studied the area over a couple of years is more representative of the truth relating to Bedouin presence than the Bedouin themselves who had lived all their lives in that area.

Similarly dismissive of Bedouin living arrangements was the conclusion that Bedouin tents did not constitute settlements, and so those in the village of Seer could not be considered indicative of a town/village less than a mile and a half away from claimed lands. Finally, the

Court asserted that Bedouin pastoralism did not count as 'productive' use of land, that the

Bedouin did not work the land continuously so as to bring about a permanent improvement and revival of the land, and therefore that they had no rights to the land.

The land disputes during the British Mandate surrounding the Palestinian villages of Zor al-

Zarqa and Barrat Qisarya demonstrate similar dismissive conceptions by the British

authorities of indigenous land rights. As the Israeli legal scholars, Forman and Kedar detail, the source of the dispute was in the attempts by the Palestine Jewish Colonization

Association (PJCA) to purchase the lands of Zor al-Zarqa and Barrat Qisarya from the

British Mandatory authorities for the purpose of draining the marshland, forestation

Palmer, Desert of the Exodus, supra note 437 at 241. Ibid. 119 undertakings, planting of fruit trees and building a Jewish settlement.445 These were lands on which over 800 Arab Palestinians, who made dieir livelihood from the land, lived with 3,500 animals.446 In order to facilitate the purchase of the lands, various commissions of inquiry- were set up, and the 1923 Bentwich447 report was used to determine what local rights to the land existed. The 1923 Bentwich report, which relied on the Ottoman land records from the

1870s and served as crucial to British policy regarding land rights in die area, did not consider tent encampments as constituting a village. According to the report, lands used for grazing, such as sand dunes with rough grass, did not count for grazing lands, thereby negating grazing rights to such land under the land's rmtruka status.448 The rationalizations of the Bentwich report are drawn from formal conceptions of the law, where the communal use of land and land grazing did not fit in neatly with Western conceptions of land use and the laws that define it. As Forman and Kedar assert, both the PJCA and the British

Mandatory authorities saw their interests coalesce in bringing about development and modernization to the land.449

The significance of the el-Hamtsheleh case is in the precedent it set. If Bedouin were in the future to take their land claims cases to the courts without proof of title, they would lose

Forman and Kedar, "Colonialism in Palestine", supra note 62 at 513, Letter from Southern District Governor Albert Abramson to High Commissioner, Israel State Archive (2) 2-mem/80 and 81 (October 13, 1920). Forman and Kedar, "Colonialism in Palestine", supra note 62 at 508. 4 7 Norman Bentwich was the Mandate government's Attorney General and, according to Forman and Kedar, an 'enthusiastic Zionist' as well. See Ibid, at 519. 448 Under the Ottoman Land Code of 1858, Matruka status of the land was property assigned to the general use of the community in seas, rivers, lakes and public roads, as well as land aside for villages or towns for grazing and timber. See Granott, Land System in Palestine, supra note 56 at 90-91, Forman and Kedar, "Colonialism in Palestine", supra note 62 at 516-522. 449 Ibid, at 516. 120 their right to the land based on the Land Rights Settlement Ordinance (1969).450 This would then write in stone State ownership of said land.451

In the el- Wakil?sl case, decided by the Supreme Court sitting as the High Court of Justice in

1983, four Bedouin petitioners claimed ownership rights over plots of land measuring 1,160 dunams that they possessed and cultivated for several generations. The petitioners claimed that they held these grounds, situated near the development town of Laqiya, until the end of

1952 at which time they were compelled to leave for security reasons and to move to the area of Tel 'Arad under the Military Administration. During their stay in Tel 'Arad, the claimed lands were leased to other Bedouins. In 1975 the petitioners were permitted by the

State to return from Tel 'Arad to the claimed land, after which time each one of the petitioners continued to farm his part of the land and also settled in the fields of the land, rebuilding their previous dwellings and economy.

The petitioners claimed that during their concentration under the Military Administration in

Tel 'Arad, they were informed by the Custodian of Property (Respondent 2 to the petition) that a settlement procedure began for the lands in the area where they lived, and that they were to present claims for ownership of land if they had any. After presenting their claims of ownership to respondent 2, they were invited to signal their land on a map and the location of the claimed land was accordingly recorded. The petitioners claimed that it was only on

5 The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283. 451 In interviews conducted by author in December 2007 with Advocates Morad Al-Sane' and Rina Rosenberg of Adalah: Legal Center for Arab Minority Rights in Israel they informed that a conscientious decision was undertaken by the organisation not to take land claim cases to court because of the precedent- setting decision of Al-Hawasheleh and therefore the futility of the process. Interviews on file with author. 452El-Wakili v. State of Israel, HCJ 84/83, P.D. 37(4) 173. 121 January 4 1980 that they learnt that the claimed land was recorded in the land registry as being under the ownership of the Development Authority (Respondent 3) since May 24

1956. This transfer of ownership to the Development Authority was recorded by the

Custodian of Property following the issuance of a certificate made by the Finance Minister pursuant to the Land Acquisition (Validation of Acts and Compensation) Law453 of 1953.

Article 2 of the law provided for the Finance Minister to issue a certificate towards expropriation of land if not in its owner's possession on 1 April 1952, and if designated to be used for purposes of essential development, settlement or security between May 14 1948 and

April 1 1952, and if still required for one of these purposes.454

According to the petitioners' claim, the Finance Minister's certificate to expropriate the claimed land did not clearly indicate that the various plots of the claimed land were the ones being expropriated. Further, the petitioners claimed that the certificate was issued without authority, since it did not fulfill even one of the three accumulative conditions required according to Article 2 of the Land Acquisition (Validation of Acts and Compensation) Law.

The petitioners claimed that they lived on the land in the relevant period between 14 May

1948 and 1 April 1952, and at that time the land was under the possession of the petitioners and was not assigned for needs of essential development, settlement, or security purposes.

The third condition was not fulfilled since the land was never intended for the needs of essential development, settlement, or security purposes.

453 Land Acquisition (Validation of Acts and Compensation) Law, L.S.I., number 122 (March 20, 1953). 454 Land Acquisition (Validation of Acts and Compensation) Law, L.S.I., number 122 (March 20, 1953) at Art. 2. 122 Accordingly the petitioners argued that the certificate was invalid with regard to the claimed land. Also, as a result of this illegality, the action of registration of this land under the name of the Development Authority was to be invalidated and declared illegal, as well as all those regulations and settlement procedures that followed.

The Court dismissed the petition. Drawing on previous judicial interpretation of Article 2 of the law in a similar case decided by the High Court, the Court held that Article 2 is 'self- evidentiary'. Accordingly, the property marked in the certificate was available for DA ownership from the date that was marked in the certificate by the Finance Minister. There was no possibility of appeal against the facts in the certificate before the certificate acts and brings the property under the ownership of the DA. Therefore, even if the petitioner came and tried to convince or claim his ownership in front of the Minister, it would not change the status of the certificate that this land was not his on April 1 1952.455 Therefore, the date set by the Finance Minister in the certificate is seen as truth and cannot be appealed or contradicted. Accordingly, the first two conditions to expropriate the land under Article 2 of the Land Acquisition (Validation of Acts and Compensation) Law were fulfilled.

The Court said that there was a 'narrow doorway1 to examining the legality of the certificate with regards to the third condition, according to which at the time of issuance of the certificate the land was still needed for essential development, settlement, or security

El-Wakili v. State of Israel, HCJ 84/83, P.D. 37(4) at para 11. 123 purposes. However, as the certificate was issued some 27 years ago, the Court applied the statute of limitations on reviewing the third condition. Accordingly, the Court deemed all three conditions fulfilled in the issuance of the Finance Minister's certificate.456

The High Court of Justice's dismissal of the petition seems inconsistent with its role as an administrative court that supervises governmental activities to ensure that public officials and state agents do not abuse their power. Article 2's interpretation as being 'self-evidentiary' precludes any possibility of reviewing administrative action that was not factually accurate or was executed in bad faith. It is important to note that the Land Acquisition (Validation of

Acts and Compensation) Law allowed for massive transfer of Bedouin lands to the State since by April 1 1952 most Naqab Bedouin were forcibly concentrated in the siyaghy the authorities.457

In the El-Sane' case, Bedouin petitioners called for the suspension of the Planning and

Building Law's (1965) provisions providing for home demolitions before the Supreme Court sitting as the High Court of Justice.458 The aim of the petition was to develop a general claim for the Bedouin population as a whole against the historical injustices they faced459 being forcibly concentrated under the Military Administration in the enclosure zone. The petitioners were calling for the suspension of the home demolition provisions in the

455 Ibid. 457 For more on the effects of the law on the Naqab Bedouin, see Falah, "Sedentarization", supra note 16 at 79, Maddrell, Bedouin of the Negev, supra note 51 at 4, cited in Tawfiq, S. Rangwala, "Inadequate Housing, Israel, and the Bedouin of the Negev" (2004) 42 Osgoode Hall Law Journal at 439. 458 Al-Sane'v. General Attorney, HCJ 2678/91, P.D. 46(3) 709 [Al-Sane']. 5 Shamir, Ronen, "Legal Activism in a Bi-National Society: Israeli Palestinians and Jews at a Crossroad", Adalah Newsletter (2000) at 6 [Shamir, "Legal Bi-National"]. 124 Planning and Building Law based on them being extremely unreasonable. The petitioners claimed that the State had promised the Bedouin that they would be able to construct houses and expand them as needed in the enclosure area in exchange for giving up their original lands from which they were uprooted. Furthermore, they asserted that even if homes were demolished because they were deemed to have been built without a license, the law does not provide victims of a demolition compensation for their losses. They also argued that the planning authorities did not adequately comprehend and so had not responded favorably to the planning needs of the Naqab Bedouin community, diat the planning authorities had disproportionately targeted the Naqab Bedouin in comparison to other sectors of society, and that the actions of the planning authorities in light of the pending 'settlement of title' operations being negotiated between the State and the Bedouin was a goal foreign to planning and construction policy in the State.

The petition was flatly dismissed by the Court, which denied the validity of the petitioner's claims. The Court ignored claims of the historic injustices the Naqab Bedouin faced at the hands of the authorities. The Court held that there was no evidence that the Bedouin were promised by the government that they would be free to settle in the siyag, and they dismissed the claim that the Planning and Building Law (1965) had been abused by the authorities. The

Court said there was no legal rule or government order forbidding the planning authorities from demolishing homes built without permission and that the authorities were in fact free

125 to use their power to punish illegal construction particularly when alternatives, i.e. development towns, exist.460

The Court denied the claim that the recommendations of the Markovitz Report461 and the actions of the planning authorities targeted the Naqab Bedouin in a discriminatory- manner, as claimed by the petitioners. The Court rejected the petitioners' claim that the Markovitz

Report was discriminatory in targeting illegal building in the southern area of Israel, where the majority of illegal buildings are in the Arab sector, more than illegal building in the north, where illegal construction is equally prevalent in the Arab and Jewish sectors. The Court reasoned that the illegal homes in the north were built on private land as opposed to state land and that there also existed infrastructure to legalize these buildings' construction.462

The Court asserted that the measures employed by the authorities were to ease the plight of the Bedouin, to stop their "vagrancy", and to facilitate their transition from nomadic to convenient permanent settlements. They also pointed to the various benefits offered to

460 Al-Sane', supra note 458 at 711 -712. 451 In November 1985 the Markovitz Commission was appointed to investigate unlicensed construction in the Arab sector and to recommend solutions. Although the findings published in 1986 in the Markovitz Report called for a speedier planning process, it also called for stricter enforcement of the planning laws and increased home demolition. In regard to the Naqab, the Report mentioned that the enforcement of the Planning and Building Law was closely tied to the resettlement of the Bedouin into development towns. After recommending that the resettlement process be given four years, the Report called for home demolitions thereafter to be executed in an "assertive and energetic" manner. Abu Hussein and McKay, Access Denied, supra note 51 at 233, 259-260, Markovitz Commission, Report on Illegal Building in the Arab Sector (1986) at 81. Al-Sane', supra note 458 at 712. 126 those Bedouin over twenty-one who agreed to go to the settlement determined, and the financial grant for all those who destroy the illegal structure that they occupied.463

The judicial reasoning in the case indicates the formal logic of the Court in refusing to read beyond what is strictly provided for in the text of the law. Therefore, as there was no legal rule or government order to forbid home demolitions built without permission and the fact that the Planning and Building Law enables authorities to use their power to punish illegal construction, the Court sees no legal reason to order a halt to home demolitions.

Furthermore, the Court refuses to acknowledge the injustice of the Bedouin being forced to demolish homes built in an area in which they were forcibly concentrated by the authorities for around fifteen years. Rather, the Court frames the story of resettlement and home demolitions as part of a benevolent project on behalf of the State undertaken towards what seems as facilitating the Bedouin civilizing mission.464

It is worthwhile noting that prior to submission, the petition did not receive the backing of one of the principal legal advocacy organisations in Israel, the Association for Civil Rights in

Israel (ACRI), which took the position that the case did not rest on solid legal grounds and was "too political". Shamir has lamented that such reasoning on the part of legal advocacy

The El-Sane' (1987) and Avitan (1988) cases are also telling of the civilising mission of the courts. Here the courts relay the story of how Bedouins that accede to State requests to settle in development towns should be accorded lenient treatment, and consequently, how the State is the benevolent keeper of justice and the rule of law. El-Sane' v. District Committee for the Southern District, CA 193/87, D.C.B.S. 49 (2) 397, Avitan v. Israel Lands Authority, HCJ 528/88, P.D. 43 (4) 297. For discussion see Shamir, "Suspended in Space", supra note 3 at 248-250. 127 organisations indicates the pressures towards framing rights claims within the strictly defined liberal legal framework of the Israeli legal system.465

A poignant piece that tells deftly of the Supreme Court's treatment of the Palestinian Naqab

Bedouin and the storytelling techniques the Court employs in the extinction of Bedouin history on the land can be found in sociolegal scholar Ronen Shamir's piece, "Suspended in

Space".466 Shamir writes that the Israeli Supreme Court adopts a conceptualist approach to the Naqab Bedouin in keeping with their policy to concentrate Bedouin in 'development towns' and registering their land in the State's name. In Shamir's discussion on the el-

HaimshdehAb'', El-Wakil?bi andylZ-S^^^cases, Shamir writes that conceptualism explains the courts' inability to hear the Bedouin, stemming from the fact that it speaks a different language, one that holds strict, predefined notions of time, space, economy, and land ownership.470 As the semi-nomadic pastoral lifestyle of the Bedouin did not fit into the court's conceptions of these issues, they were simply erased.471

465 Shamir, "Legal Bi-National", supra note 459 at 6-7. 4 6 Shamir, "Suspended in Space", supra note 3. 467 El-Hawasheleh v. State of Israel, [1974] CA 218/74, P.D. 38(3) 141. mEl-Wakili v. State of Israel, HCJ 84/83, P.D. 37(4) 173. m Al-Sane'v. General Attorney, HCJ 2678/91, P.D. 46(3) 709. 470 Shamir also analyses the Abu-Solb case. In the Abo-Solb case, thirteen Bedouin appellants put forward a 'fraud' claim against the ILA that they were dispossessed of lands without being notified, which was required by law under the Land Rights Settlement Ordinance (1969). The law said that conflicting rights to the land (prior to registration as State owned) would not be abolished only if fraud or technical mistakes were proven. The appellants claimed ownership based on having worked and possessed the land for years and appealed for the court to nullify the registration of the land as State owned. The appeals court upheld the lower court's decision in favour of the State. The court held that notices were published in neighbouring Jewish settlements, therefore the 'fraud' claim was dismissed; that at the time of registration of the lands in the State's name, the Bedouin were not in a 'settlement', as defined in the law but at most merely 'present'; finally, during registration, the Bedouin were not on said lands as claimed since they were in the siyag under Military Administration. That the State had forcibly concentrated them there seemed not to bear on 128 In 2000, the Supreme Court sitting as the High Court of Justice made a landmark decision in the Qz incase,472 where it ruled that the principle of equality was a fundamental value in the State of Israel and that all public authorities must act according to this principle, including in the allocation of State lands.473 In the Qi'adan case, the petitioners, Palestinian

Arab citizens Adel and Iman Qa'adan, sought to buy a plot of land in the Jewish settlement of Katsir for the purpose of building a house. However, die Katsir 'selection committee' that screens potential residents rejected their request on the basis of their Arab identity. The

Katsir community was built on lands that the Israel Lands Administration had leased to the

Jewish Agency, which in turn handed part of it to the Jewish settlement. This decision came after five years of deliberation, when the Court ruled that the principle of equality had been offended by the ILA in allocating State land that was only accessible to Jews. This decision was received favorably by scholars who saw it as signaling an end to the persistent discrimination Arabs faced in public resource allocation by the State.474

the ruling. Abu-Solb v. Israel Lands Administration, [1986] CA 518/86, P.D. 42(4) 518, The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283, Shamir, "Suspended in Space", supra note 3 at 243-245. 471 In the Delgamuukw case in Canada, the court recognised the admissibility of oral history as evidence in claims of land ownership for an indigenous people. Delgamuukw v. British Columbia, [1997] 3 SCR 1010, [1998] 1 CNLR 14. See Chapters 4 and 5 for further discussion on the recognition of aboriginal title in foreign jurisdictions. 472 Qa 'adan v. Israel Lands Administration (2000), HCJ 6698/95, P.D. 54 (1) 258. 473 The Supreme Court of Israel held: "Equality is one of the fundamental values of the State of Israel. Every authority in Israel - and at their head the State of Israel, its authorities and its employees - must treat individuals in the state equally... The state's obligation to treat people equally covers all its acts. It applies, then, also to the allocation of state lands". Ibid, at 258, 272-274, para. 21,23. 474 Alexandre (Sandy) Kedar, "A First Step in a Difficult and Sensitive Road: Preliminary Observations on Qaadan v. Katzir" (2000) 16 Israel Studies Bulletin 3, Ilan Saban, "Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel" (2004) 36 New York University Journal of International Law and Politics at 964. 129 However, the Court's decision gives reason for caution. Instead of setting precedent with a formal ruling, the Court instructed the authorities to reconsider residence for the Arab couple in the Jewish community of Katsir. Second, the Court mentioned explicitly that the decision was oriented towards the future and did not serve to reevaluate the past, thereby preventing recognition of past practices of land allocation diat had been legally or morally wrong.475

Neta Ziv, the Association for Civil Rights in Israel (ACRI) lawyer who wrote the petition, noted two shortcomings to the petition from the point of view of Palestinian lawyers. The petition focused on 'integration', when that was not the most pressing problem for

Palestinians, whose grievances lie more in the discriminatory allocation of land, land expropriations and land shortages. Second, the petition excused and justified land expropriations in the past and so was not reflective of genuine Palestinian perspective.476

In spite of the ruling in Qi'adan where the Court stated that there can be no discrimination in the allocation of public land between Arab and Jew, the reality is that the three-party lease system and the 'selection committees' involved, continue to exclude Palestinians from access to land. As mentioned earlier, the three parties involved are the ILA as the public landowners' agent, the Jewish Agency, and the Jewish settlement as a legal cooperative with its 'selection committee'. In order to lease a plot of land in such a settlement, a person must be accepted as a member of that cooperative by its 'selection committee', which has the power of selection and veto over acceptance. As a result, the Naqab Bedouin are barred in

Qa'adan v. Israel Lands Administration, HC 6698/95, P.D. 54 (1) at Para. 40. Shamir, "Legal Bi-National", supra note 459 at 15. 130 practice from leasing land within the jurisdiction of regional councils where the three-party lease system exists, which is roughly 89% of the Jewish settlements in the Naqab.477

The Iqrit andBir'im476'case tells a very interesting story of the government's response to a

High Court ruling in favour of the right of return to land from which Palestinian citizens were expelled. In 1948, the Israeli army ordered the villagers of Iqrit and Bir'im to evacuate their villages due to security concerns owing to the villages' close proximity to the Lebanese border. The army assured them they would be able to return after 15 days. When this failed to happen, the villagers turned to the courts and in 1951 the High Court ruled that the reasons for their evacuation no longer existed and there were no legal grounds to deprive them of their right to return.479 However, the military defied the Court's ruling, issued expulsion orders to the residents, destroyed the village, declared them closed areas under

Regulation 125 of the Defence (Emergency) Regulations (1945), and title to the land of both villages was transferred to the State under the Land Acquisition (Validation of Acts and

Compensation) Law 1953. In 1981 the High Court rejected an attempt to challenge these actions, contending that too much time had elapsed for it to examine the matter.480 In 1993 a

Ministerial Committee headed by the Minister of Justice was established to resolve the

Palestinian Arabs as a whole are in practice barred from leasing land on 80% of the land in Israel, as this is the extent to which the jurisdiction of regional councils with the three-party lease system stretches in Israel. Kedar and Yiftachel, "Land Regime", supra note 89 at 142-143. Oren Yiftachel, Land, Planning and Inequality: Space Division between Jews and Arabs in Israel (Tel Aviv: Adva Center, 2000) (Hebrew). Yiftachel (2000) cited in Hamdan, "Spatial Judaization in the Naqab", supra note 101. 47 Daud v. Ministry of Defence, HCJ 64/51, P.D. 5, 1117, Palestine Yearbook of International Law, Vol. II (1985) 121. 479 Ibid. 480 The Committee for Ikrit Refugees v. Israeli Government, HCJ 141/81, P.D. 36 (1) 129, Palestine Yearbook of International Law, Vol. II (1985) 129. 131 problem of Iqrit and Bifim.481 The Committee's recommendations involved restoring less than 10% of the villagers' lands and so were rejected as inadequate.

When the High Court was petitioned once again, it refused to rule on the issue but instead urged the government to come up with a solution. In October 2001, the government held that the security grounds for expulsion still held and to allow a return would set a dangerous precedent for other displaced Palestinians. The High Court accepted the government's position and in December 2001 ordered compensation to be paid to the villagers but they rejected this offer.482 The case is a telling example of how a court despite ruling in favour of the right of return initially, in subsequent cases deferred to the executive.483 More importantly, it is an example of the government openly defying a Court ruling on the right of return because of the precedent it will set for all those Palestinian Arabs displaced from their lands.

According to Ilan Saban, the government argument that a precedent for the 'right of return' of Palestinian refugees would be set if the villagers of Iqrit and Bir'im were allowed to return to their homes is unsubstantiated. Saban asserts that the case of internally displaced persons has no bearing on refugees, who possess a different legal status, and that internally displaced people returning to their villages will not alter the demographic makeup of the State.

Accordingly, the government acted unreasonably in breaking their promise to the villagers

481 State of Israel, Government Decision 2071 of November 7 1993. 482 Sbeit v. Government of Israel, HCJ 840/97, P.D. 57(4) 803. Abu Hussein and McKay, Access Denied, supra note 51 at 84-85. 132 and their argument should not have been upheld by the Court. Saban concludes that it is the vulnerability the Court feels in its legitimacy being under constant review by the government, which explains its wariness to stray from popular consensus on sensitive issues such as the right of return, demography and security.484

As mentioned earlier, the legislature was not solely responsible for Palestinian land expropriation. The process was often facilitated by the courts.485 The legal scholars, Abu

Hussein and McKay assert that the Israeli High Court's role in protecting Palestinian land rights has been markedly disappointing, and far from protecting Palestinian land rights, the

Court has often facilitated the transfer of ownership and control of the land to the State.

When confronted with the issues of State ownership and control of land, the Court has largely deferred to the executive.486

In interviews conducted by the author in December 2007 with advocates Morad Al-Sane' and Rina Rosenberg of Adalah, they reported that a conscientious decision was undertaken by the organisation not to take land claim cases to court because of the obstacles posed by the d-Hawtshdeh ruling and their view that further litigation was futile.487

Ilan Saban, "After the Storm? The Israeli Supreme Court and the Arab-Palestinian Minority in the Aftermath of October 2000" (2008) 14:4 Israel Affairs at 628-629. 485 For more on the role of courts, see Kedar, "Ethnic Geography 48-67", supra note 58, and Alexandre (Sandy) Kedar, "On the Legal Geography of Ethnocratic Settler States: Notes towards a Research Agenda" in Jane Holder and Carolyn Harrison (eds.), Law and Geography: Current Legal Issues 2002, Vol. 5 (Oxford: Oxford University Press, 2003) 401. 486 Abu Hussein and McKay, Access Denied, supra note 51 at 294. 487 Interviews on file with author. 133 Nevertheless, in using the individually based liberal rights approach to put forward collective rights claims and in forcing a juridical discourse shift from individual to collective rights,488

Adalah has made headway on a number of land rights cases related to planning and the establishment of clinics and a school in the unrecognised villages. In 1997, the High Court of

Justice ordered the Ministry of Health to build six mother-child health care clinics in the unrecognised villages where none previously existed.489 In 2007, the High Court of Justice approved a settlement between petitioners and the Ministry of Education to build the first high school in the Naqab.490 In the A bu Kafmcase, a petition was filed against the Minister of Interior to stop the proposed expansion of the wealthy Jewish Naqab town of Omer from including two neighboring unrecognized Arab villages, Em Batin and Al Maquman within its jurisdiction. The annexation was planned without any consultation or community participation with the Bedouin in the expansion plan. As a result of the petition, a

Committee was established to re-examine Omer's borders, and it decided to cancel the proposed annexation. The Minister then adopted the recommendations. Although Adalah requested that the High Court of Justice compels the Minister to issue a writ abolishing the initial expansion plan for Omer, the court refused this request.492 In all three cases mentioned above, the court avoided issuing written reasons so as not to set a precedent but instead called upon the executive to act.

488 Shamir, "Legal Bi-National", supra note 459 at 15-22. 489 Adalah v. Ministry of Health, HCJ 7115/97. 490 Abu Sabila v. The Ministry of Education (2007), HCJ 2848/05. 491 Abu Kaf v. Minister of the Interior, HCJ 6672/00. 492 Adalah - Legal Center for Arab Minority Rights in Israel, Legal Advocacy - Supreme Court Petitions: Land Rights, online: http://www.adalah.Org/eng/legaladvocacyland.php#6672. 134 As demonstrated in the case studies above, the Israeli courts, including the Supreme Court sitting as the High Court of Justice, whose purpose it is to curtail the abuse of government power, has either ruled in favour of the government, or has deferred to the executive to change its course of action, without issuing precedent setting reasons. However, it is not just that the Israeli courts serve to legitimate the political order of the day,493 but that the courts serve a political order founded on Jewish exclusivity, orientalist conceptions, exclusion and oppression of the Naqab Bedouin 'other5. The following chapter will look at international law's norms, standards and principles with regards to land rights, against which Israel's performance will be compared. The analysis will be critical, examining international law's own shortcomings in delivering on the social justice demands of subaltern peoples, as interpreted through social movements theory.

Shamir, "Landmark Cases", supra note 427. 135 4 Land Rights of the Naqab Bedouin in International Human Rights Law

4.1 Land Rights of the Naqab Bedouin

Given the limited scope of legal protection within the Israeli legal system as outlined in

Chapter 3, it is necessary to turn to international law to explore its principles, norms and rules that place duties on states to respect, promote, protect and fulfill rights; in this case the duties placed on Israel vis-a-vis the land rights of the Naqab Bedouin. As mentioned before, the right to land, as a meta-composite right, includes the right to adequate housing, the right to property, the right to security of tenure, as well as the right to health and the right to water.494 There are also those rights accorded to minority groups and indigenous peoples that apply in the Palestinian Bedouin context.

The human rights codified in treaties have legally binding effect on States Parties that have ratified or acceded to them; those codified in declarations and recommendations do not necessarily have legally binding effect but do place a moral obligation on states. Through ratification of treaties states are granted the necessary time-frame to seek the required

approval for the treaty domestically and to enact the necessary domestic legislation to give

effect to that treaty.495

A fairly comprehensive analysis on the right to health and the right to water in the Naqab can be found in COHRE, Goldberg Committee, supra note 11. 495 Vienna Convention on the Law of Treaties (1969), UN Doc. A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969), Arts.2 (1) (b), 14 (1) and 16. 136 It is instructive therefore to look at international law as a benchmark of the right to land's norms and standards, against which Israel should be judged. However, such reliance on international human rights law does not take for granted that international human rights law is perfectly positioned at present to respond to the social justice issues of subaltern classes given the state centric nature of international law in general (as will be explored in the final section of this chapter); nevertheless, it does set a minimum standard of legal and/or moral obligations on the State of Israel to its Palestinian Bedouin Naqab citizens. First, we will consider if there is disparity between the fulfillment of land rights in the Israeli context based on international norms and standards; second, if disparity exists then we will attempt to gauge the extent of disparity between the two; and finally, we will review normative procedures that could bring about a substantive fulfillment of those rights based on the

State's historical and current reciprocity with the international legal system.

Equality and Non-Discrimination

Pillars of international law are the principles of equality and freedom from discrimination.

These are fundamental norms of international human rights law and are binding on all states as set forth in the Universal Declaration of Human Rights (UDHR).496 As Israel has ratified the following treaties that codify the prohibition against discrimination - the International

Covenant on Gvil and Political Rights (ICCPR),the International Covenant on Economic,

496 Article 2 states, "Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A (III), UN Doc. A/810 at 71 (1948). 137 Social and Cultural Rights (ICESCR),the International Convention on the Elimination of All

Forms of Racial Discrimination (ICERD), and the Convention on the Rights of the Child

(CRC), Israel is legally bound by international law to the provisions of these treaties.

Furthermore, the prohibition on racial discrimination is also considered in international law as a preemptory norm, or jus cogens?'*7 The principle of non-discrimination goes beyond just providing formal equality before the law; rather it speaks to actual protection from direct and indirect discrimination and to the principle of equal access to public resources. In addition,

ICERD stipulates that policies of affirmative action do not constitute discrimination and should be undertaken when the circumstances so warrant to ensure human rights enjoyment by all.498

With regard to the principle of non-discrimination in Israel, public law dictates that public bodies have a duty not to discriminate on the grounds of race, sex, religion or national origin. In relation to the principle of equality, Aharon Barak, the former Supreme Court

President, has interpreted the Basic Law: Human Dignity and Freedom (1992) as encompassing the right to equality499 and David Kretzmer, the Israeli legal scholar specializing in constitutional law, has affirmed that the principles of equality and non-

497 See Report of the International Law Commission, adopted at its 53rd session, 2001, UN Doc. A/56/10, 207. 498 Art. 2 (2). 499 As quoted in Aeyal M. Gross, "The Politics of Rights in Israeli Constitutional Law" (1998) 3 Israel Studies 80 [Gross, "Politics of Rights"], where he says that Barak in academic writings interpreted "human dignity and liberty" to include equality, freedom of speech, freedom of religion, freedom of art, and freedom of gathering and association, see Aharon Barak, "The Constitutional Revolution: Protected Human Rights" (1992) 1:1 Mishpat Umimshal: Law and Government in Israel (Hebrew) 9. 138 discrimination have legal status in Israel.500 Furthermore, the 'Declaration of the

Establishment of the state of Israel', Israel's founding document, stresses 'it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex'.

However, the underlying factor in all of this is that Israel, as stated in its founding document, emphasizes the nature of the State as zjewsh State. Even the Basic Law: Human Dignity and

Freedom (1992) states in its opening article, "The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of

Israel as a Jewish and demxratic state'.5m It is this juxtaposition of the 'Jewish' and the

'democratic' elements that characterize the state that has been the source of much academic commentary with scholars asking if Israel's essentially Jewish nature compromises its democratic commitments and therefore, the principles of equality and non-discrimination.502

It is noteworthy that the principle of equality is not incorporated in the Basic Law: Human

Dignity and Freedom (1992), which is a constitutional document that claims to be the foundational document establishing civil rights in Israel. Furthermore, Kretzmer describes numerous incidents of institutionalized discrimination in Israeli policy making and

500 David Kretzmer, The Legal Status of the Arabs in Israel (Boulder, Colorado: Westview Press, 1990) at 77 [Kretzmer, Arab Legal Status]. 501 Basic Law: Human Dignity and Freedom, 1992, Sefer Ha-Chukkim, number 1454, 90, Art. 1 (emphasis added). 502 For example, Oren Yiftachel has characterised the Israeli land regime as being 'ethnocratic' i.e. a regime marked by ethnonational expansion and control, while in parallel self-representing the system as democratic. See Yiftachel, Ethnocracy, supra note 88. See generally the work of Ronen Shamir, Aeyal Gross, Hassan Jabareen, Nadim Rouhana and Nimer Sultany. 139 administrative decisions, such as administrative discretion that is discriminatory against Arab citizens in the allocation of budgets and resources such as land and water.503 Aeyal Gross, an

Israeli law Professor has written that the principle of equality in the Israeli Court system has only been recognized in cases involving discrimination on grounds of gender or sexual orientation. However, the Court has regularly rejected petitions involving equality claims brought by the Palestinian minority, resorting to a formal and narrow interpretation of the term.504 Even when it appears that the principle of equality is upheld for Arab petitioners in a land allocation case, as it was in the Qi'adzn case, legal scholars and the Palestinian community have been cautious in their optimism.505 Alexandre (Sandy) Kedar has written about the serious breach of the principle of equality in the Naqab as seen in the allocation of individually owned farms and the freedom given to Jewish Israelis to live in suburbs while in the same temporal and spatial reality, Naqab Bedouin live in unrecognised villages and are denied water, electricity and other basic amenities all in the aim of forcibly concentrating them in urban development towns.506

As evidenced in Chapter 3, the mechanisms to ensure non-discrimination and equality of

Arab citizens in relation to their land rights are fundamentally flawed. These mechanisms

See Kretzmer, Arab Legal Status, supra note 500. 504 See Gross, "Politics of Rights", supra note 499, where he looks at the following petitions involving equality claims brought forward by the Palestinian minority. Agbaria v. Minister of Education, HC 3491/90, P.D. 45(1) (1990) 221-4 (Hebrew), Agbaria v. Minister of Education, H.C. 3954/91, P.D. 45(5) (1991) 472-8 (Hebrew), The Arabic Council for Education v. Minister of Education, H.C. 4251/94 (Decided 29 March 1995, not published at time of writing), Watad v. Ministry of Treasury, H.C. 200/83, P.D. 38(3) (1983) 113-25 (Hebrew), Burkan v. Mister of Finance, H.C. 114/79, P.D. 32(2) (1979) 800-08 (Hebrew). 505 See Section 3.3 for an elaboration on the reasons for cautious optimism in the Qa 'adan ruling. 5 Alexandre (Sandy) Kedar, "Land Settlement in the Negev in International Perspective," 8 Adalah Newsletter (September 2004) at 6-7 [Kedar, "Negev in International Perspective"]. offer very restricted hope within the confines of the current domestic legal system for the substantive fulfillment of such rights.

Right to Adequate Housing

International human rights law protects the right to adequate housing in and of itself.507

Under Article 11 (1) of the ICESCR, States Parties are obligated to promote and protect

"the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing"; the UDHR508 and ICERD509 also codify the right to housing.

General Comment 4 of the Committee on Economic, Social and Cultural Rights, 'The right to adequate housing'510 is particularly instructive in interpreting the norms and principles enshrined in the ICESCR on housing. The comment stipulates that the right not be interpreted in a narrow manner as having a roof over one's head, but rather that it entails a right to live somewhere in security, peace and dignity. Furthermore, the word 'adequate' should be stressed as it implies housing with "adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities - all at a reasonable cost". Furthermore,

Susan Marks and Andrew Clapham, International Human Rights Lexicon (New York: Oxford University Press, 2005) at 211 [Marks and Clapham, IHR Lexicon]. 508 Art. 25(1) 509 Art. 5 (e) (iii) 510 UN Committee on Economic, Social and Cultural Rights, "The right to adequate housing," General Comment No. 4, UN Doc. HRI/GEN/l/Rev.7 (1991). General Comment 4 interprets the right as encompassing legal security of tenure, accessibility, affordability, habitability and cultural adequacy. The General Comment also elaborates on the right as being a determinant in the fulfillment of other basic human rights

- such as the right to freedom of expression, the right to freedom of association for tenants and other community-based groups, the right to freedom of residence, the right to participate in public decision-making, and the right to privacy. General Comment 4 also calls for priority in legislation and policy to be given to those disadvantaged social groups, and in the allocation of adequate housing that there be 'extensive genuine' consultation with the affected populations.

How are we to understand how the right to adequate housing should procedurally be implemented by States? Article 2.1 of the ICESCR calls for each State Party "to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means,

including particularly the adoption of legislative measures". Therefore, states need to

implement a comprehensive judicial, administrative, socioeconomic and educational strategy to give effect to this right. Furthermore, "to the maximum of its available resources" does

not grant States the right to excuse themselves from fulfilling the right on the basis of lack of

resources. Rather, States should use effectively all available resources (including

international) to ensure minimum subsistence rights for all. The reference to "achieve

142 progressively" also calls for States to act continuously towards the realization of the right without putting off the right indefinitely or scaling back on achievements.511

The right to adequate housing is not codified in Israeli law. Moreover, public policy as regards both the unrecognised villages and the development towns is in explicit contravention of the right to adequate housing. The deliberate non-provision of basic amenities such as water and electricity (basic requisites of adequate housing) to 80,000

Naqab Bedouin citizens in the unrecognised villages is evidence of that contravention. The development towns, lacking cultural adequacy and constructed with essentially no consultation with the Naqab Bedouin, never mind 'extensive genuine' consultation as explicated in General Comment 4 are also a violation of the right to adequate housing.

Indeed, the principles of 'security, peace and dignity' that are meant to inform the right to adequate housing are conspicuously absent in the policy towards the Naqab Bedouin. More than that, it has been governmental policy to put into place a reality informed by insecurity, conflict, and degradation. This is very troubling because the principles of security, peace and dignity that are meant to guide government legislative action and public policy as regards housing are in a sense absolute precursors in effecting the rights as laid out in General

Comment 4; the absence or inversion of these principles seriously undermines even the possibility of putting into effect the rights that encompass the right to adequate housing.

1' See Scott Leckie, From Housing Needs to Housing Rights: An Analysis of the Right to Adequate Housing under International Human Rights Law (London: International Institute for Environment and Development, 1992) at 28-30, The Limburg Principles on the Implementation of the International Covenant on Economic Social and Cultural Rights, UN doc. E/CN.4/1987/17, Annex. 143 Right to Land

General Comment 4 of the Committee on Economic, Social and Cultural Rights calls on

States Parties to increase "access to land by landless or impoverished segments of the society

... (as) a central policy goal... including access to land as an entitlement,"512 thereby recognizing the centrality of land in the realization of the right to adequate housing.

Chapter 3 of this essay overviewed the various laws passed to expropriate land from

Palestinians and to convert those lands to 'Israel Lands'. The Basic Law: Israel Lands (1960) affirmed the non-transferability of Israel Lands in the ownership of the State, the

Development Authority and the Jewish National Fund, ensuring perpetual Jewish possession of those lands. The possibilities of fulfilling the right to land for the Naqab Bedouin within the Israeli system have to be weighed against the history of the legal system in expropriating land and the current ethnocratic goals of maintaining a Jewish demographic majority and land expanse policy.

Article 3 of the Basic Law: Human Dignity and Freedom (1992) states that "[t]here shall be no violation of the property of the person". This Article offers some hope for restitution of land expropriated from the Naqab Bedouin that the State now sees them as illegally occupying. However, the law has severe limitations. First, the Basic Law cannot challenge existing legislation and is not retroactive,513 which renders it essentially ineffective to

512 UN Committee on Economic, Social and Cultural Rights, "The right to adequate housing," General Comment No. 4, UN Doc. HRI/GEN/l/Rev.7 (1991), para. 8e. Basic Law: Human Dignity and Freedom, 1992, Sefer Ha-Chukkim, number 1454, 90, Art. 10. challenge land expropriations, the majority of which had already taken place before the institution of the law in 1992. Second, Article 8 of the Basic Law places strict limitations on the application of the Basic Law. Article 8 states "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law". In its initial interpretation of Article 8, the Supreme

Court interpreted the right as having to give leeway to the nature of Israel as a Jewish state and its goals.514 Aeyal Gross contends that the constitutional protection given to the right to property being predicated on the 'values of the State as Jewish and democratic' rather than protecting Palestinian land rights entrenches the existing Israeli property regime, whose genesis came about as a result of large scale land expropriations from Palestinians.515

Forced Evictions and Home Demolitions

General Comment 4 of the Committee on Economic, Social and Cultural Rights states that forced evictions are incompatible with the specifics of the Covenant and can only be justified in "the most exceptional circumstances".516 Furthermore, it has issued a General

Comment 7, 'The right to adequate housing (art. 11.1 of the Covenant): forced evictions' specifically to elaborate on the contours such an act should take based on the principles of proportionality and reasonableness. The Comment stipulates that when evictions take place,

514 Justice Shamgar and Justice Barak in United Mizrahi Bank Ltd v. Migdal Cooperative Village, CA 6821/93, P.D. 49 (4) 221, cited in Abu Hussein and McKay, Access Denied, supra note 51 at 23-24. In the United Mizrahi Bank case the Supreme Court also recognised the power of all courts to declare a statute unconstitutional and invalid if it contradicted the rights provided for in the Basic Laws. 515 Gross, "Politics of Rights", supra note 499 at 103. 516 UN Committee on Economic, Social and Cultural Rights, "The right to adequate housing," General Comment No. 4, UN Doc. HRI/GEN/l/Rev.7 (1991), para. 18. those affected should be consulted, offered reasonable alternatives and adequate compensation as well as provided with legal remedies. It also calls for adequate prior warning so that the evictions do not result in homelessness, and requires that the State provide adequate alternative housing, resettlement or access to available productive land.

The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading

Treatment or Punishment prohibits "acts of cruel, inhuman or degrading treatment or punishment," with the absolute ban on torture being a. jus cogens preemptory norm and therefore non-derogable by States.517 The Committee Against Torture has stated that forced evictions and home demolitions may indeed constitute cruel or inhuman treatment, and made the following concluding observation with regard to Israel in 2001, where they expressed concern that "Israeli policies on house demolitions, which may, in certain instances, amount to cruel, inhuman or degrading treatment or punishment (article 16 of the

Convention)".518

The Planning and Building Law (1965) provides the legal basis for the administrative authorities to carry out home demolitions in the Naqab. As official plans in the unrecognised villages are lacking, all homes are considered illegal and open to demolition. Since the 1970s, thousands of home demolitions have been carried out and between 2001 and 2007 there

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1984); 1465 UNTS 85. 518 See Report on Conclusions and Recommendations of the Committee against Torture: Israel. 23/11/2001. CAT/C/XXVII/Concl.5. (Concluding Observations/Comments). 146 were 227 home demolitions.519 The Planning and Building Law contains no provisions requiring officials to offer residents of a demolished home alternative shelter, nor is there a provision to ensure that those affected will not be rendered homeless after the demolition and neither does the law entitle victims of a demolition to compensation for their losses.520

Under the Planning and Building Law, the authorities first post a warning for the owner of the 'illegal structure' to demolish his home. If the person does not comply, authorities can issue an administrative demolition order if the illegal structure was built in the past thirty days, or seek a judicial demolition order if more than thirty days has elapsed since the construction of the structure. Article 238a of the Planning and Building Law allows the administrative body to issue a demolition order; Article 205 and Article 212 allow the

Planning Authorities to seek a judicial demolition order.521 Although the Court has said that it needs good reason to issue a demolition order outside of illegal status,522 nevertheless the courts have issued thousands of demolition orders according to the requests of the planning authorities (only a small proportion of which are actually carried out).523 Furthermore, the extent of judicial recourse or legal remedies for those subject to home demolitions has to be

HRW, Off the Map, supra note 4 at 56, Appendix B, According to the Gazit Report of 2000, there are 24,000 'illegal' buildings in the South mostly in the unrecognised villages, see Gazit Report, Report of the Inter-Ministerial Committee to Examine Illegal Construction in the State of Israel (March 2000) (Hebrew). Home demolitions continued in 2008, most striking was on April 2, 2008, when homes in the unrecognised village of Twayyil abu Jarwal were demolished. This was the fifteenth demolition over the past three years in the village. See Centre on Housing Rights and Evictions (COHRE), Letter to Prime Minister Ehud Olmert, "Housing rights violations in the 'unrecognised villages' in the Negev" (May 29 2008). 5 The Planning and Building Law, 1965, L.S.I., vol. 19 330. 521 See HRW, Off the Map, supra note 4 at 64-72. Local Planning and Building Commission for Tel Aviv vs Keren Mordecai, Criminal Cases, Tel Aviv 4/87, Local Judgements 5750(b) 514. 52 Y. Horowitz, Enforcement of the Planning and Building Laws — Demolition Orders, Compilation of the Local Authorities at 8 (continuously updated) (Hebrew), cited in Abu Hussein and McKay, Access Denied, supra note 51 at 234. considered in light of the discretion given to the executive in the home demolitions process.

The Planning Authorities can issue administrative demolition orders for buildings within the respective planning commission's jurisdiction and such orders require no judicial oversight.524 Furthermore, the law provides for the criminalization of the victim of the home demolition as a person ordered to demolish his own home may be subject to criminal charges if he fails to follow the court order, with the possibility of fines and imprisonment.525

Home demolitions should not only be seen as 'cruel, inhuman or degrading treatment or punishment' or simply a violation of the right to adequate housing. Home demolitions cause severe mental health trauma for children as detailed in the Physicians for Human Rights

2006 Report on Home Demolitions526 and housing is the single most important environmental factor bearing on the extent of life expectancy.527

A home demolition entails the destruction of what human beings identify as their sense of stability, security, and comfort - the home. With that in mind, a home demolition becomes an attack on the very essence of the 'inherent dignity' of the human person, the principle

524 HRW, Off the Map, supra note 4 at 71. 5 5 Justice Shamgar in Nataf Cooperative Settlement Organization vs. State of Israel, P.D. 38(2) 558. 526 Orli Almi, The Ramifications of House Demolitions in Israel on the Mental Health of Children (Tel Aviv: Physicians for Human Rights Israel, 2006). The professional opinion of a social work specialist, Dr Krenawi is included in the report and is especially telling of the trauma, "In the situation of the house demolition, which the children often witness themselves, they see their father in a situation of total impotence. In addition, house demolitions often cause defects in the overall functioning of the family. These factors erode the children's world view and their perception of the family as a safe, nurturing and protective place. The existence of the home fills a vital and basic need for children, and its absence impairs the development of safe and adaptive relationships." 527 According to the World Health Organization, as quoted in Marks and Clapham, IHR Lexicon, supra note 507 at 210. 148 meant to inform all the major human rights treaties and instruments, and in that the demolition of a home stands in stark opposition to the most fundamental principles, norms and rules of international human rights law.

Rights of Indigenous Peoples528 and Minorities

In the life of international human rights law, the principles, norms and rules concerning minorities and indigenous peoples have been fairly recent developments. Although there does not exist universal consensus on who are indigenous peoples, the International Labour

Organization's (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169) is instructional and defines indigenous peoples as:

• Tribal peoples whose social, cultural and economic conditions distinguish them from

other sections of the national community, and whose status is regulated wholly or

partially by their own customs or traditions or by special laws or regulations.

• Peoples who are regarded as indigenous on account of their descent from the

populations which inhabited the country, or a geographical region to which the

country belongs, at the time of conquest or colonisation or the establishment of

present state boundaries and who, irrespective of their legal status, retain some or all

of their own social, economic, cultural and political institutions.529

I draw chiefly here from United Nations Development Group, Guidelines on Indigenous Peoples' Issues (February 2008) [UN Development Group, Indigenous Peoples]. 529 ILO Convention No. 169, Art. 1, subsection 1. 149 • The Convention also states that self-identification as indigenous or tribal shall be

regarded as a fundamental criterion for determining the groups to which the

provisions of this Convention apply.530

Other definitions of indigenous peoples stress the importance and centrality of land to the livelihood of indigenous people as well as the shared history of subjugation, dispossession and marginalisation.531

According to this characterization of indigenous peoples, the Naqab Bedouin seem to fit well, given their historical continuity on the land, some from as early as the 7th century, the customs and traditions that distinguish them from Jewish Israelis, and the centrality of land to their identity and livelihoods as an agricultural/pastoral society. As regards the history of subjugation, dispossession and marginalisation, this is both a historical and persistent phenomenon as detailed in Chapter 3.532

530ILO Convention No. 169, Art. 1, subsection 2. 531 Also instructional is Jose Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986, and Working Group on Indigenous Populations, Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene A. Daes, on the concept of "indigenous people", UN Doc. E/CN.4/Sub.2/AC.4/1996/2. Kedar has mentioned that as some Naqab Bedouin are internally displaced people, rights accorded to that category are provided for in international law and should be explored. He looks specifically at the draft Declaration of International Law Principles on Internally Displaced Persons adopted by the International Law Association (ILA) in 2000. See Kedar, "Negev in International Perspective", supra note 506 at 3, Luke T. Lee, "The London Declaration of International Law Principles on Internally Displaced Persons" (2001) 95: 2 The American Journal of International Law 454. 150 The main legally binding document entirely focused on the rights of indigenous peoples is

ILO Convention No. 169 on Indigenous and Tribal Peoples.533 Other international instruments that provide for the protection of indigenous people can be found in the

Convention on the Rights of the Child (CRC)534, the International Convention on the

Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on

Civil and Political Rights (ICCPR),535 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Given the individualized nature of most international human rights instruments, the adoption by the General Assembly of the Declaration on the Rights of Indigenous Peoples

(UN-DECRIPS) in September 2007536 is welcome in that it accords indigenous peoples the recognition of specific collective rights which include the rights to their lands, territories and resources, to maintain their cultures, to recognition of their distinct identities, to self- government and self-determination, to freely define and pursue their economic, social and cultural development, and to be asked for their free, prior and informed consent in decisions that may affect them. According to the Declaration, States should establish mechanisms to guarantee these rights. Even the right to development is to be understood as indigenous people having the right to decide the kind of development that takes place on their lands and

Only 20 countries have ratified the convention to date; Israel has not. See http://www.ilo.org/ilolex/english/newratframeE.htm 534 Art. 30 535 Art. 27 536 United Nations, UN Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295. The Human Rights Council adopted the Declaration on 29 June 2006 (Resolution 2006/2). See the Report of the First Session of the Human Rights Council (A/61/53). The General Assembly approved the Declaration on 13 September 2007 (Resolution 61/295). 151 territories in accordance with their own priorities and cultures. Furthermore, the right to equality implies that indigenous peoples have equal opportunities which may require that

States take special or positive measures to compensate for historic injustices and disadvantages.

The right to self-determination was the rhetoric used in the Palestinian context when the

Ottoman Empire was to be divided following World War I, and instead of Palestinians achieving this right, Palestine was placed under the British Mandate. The right to self- determination is not solely restricted to the UN-DECRIPS, but is a fundamental principle of international law; this has been explicated by the Committee on the Elimination of Racial

Discrimination's General Comment 21, 'The right to self-determination'.537 With regard to land, what can be considered at the core of indigenous identity, the guiding principles on the right to self-determination in international human rights law are that indigenous peoples' lands and territories should be legally recognized, demarcated and protected (that indigenous people shall not be fomblyrerwwd from their lands or territories and no relocation should take place without the free, prior and informed consent538 and, where possible, with the option of return, and indigenous people have the right to the lands, territories and resources which they have traditionally ozened, occupied ox otherwise usedor acquired); that states should recognize the traditional management systems; that indigenous peoples also have rights to lands used

537 Para 2. of General Comment 21 states that the right to self-determination 'is enshrined in article 1 of the Charter of the United Nations, in article 1 of the International Covenant on Economic, Social and Cultural Rights and article 1 of the International Covenant on Civil and Political Rights, as well as in other international human rights instruments'. 538 For an elaboration on the principle of 'free, prior and informed consent', see UN Development Group, Indigenous Peoples, supra note 528 at 28. 152 traditionally (e.g. nomadic peoples, shifting cultivators, etc.); that where lands have been lost for the purposes of national development, restitution or redress is recognized; and mat

States should adopt adequate measures to protect their territories, environment, and cultures.539

However, the restriction on the right to self-determination is seen in Article 46, Paragraph 1 of the Declaration on the Rights of Indigenous Peoples which states: "Nothing in this

Declaration maybe interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of die United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent

States." I will elaborate on how this restriction threatens to undermine the very foundational principles of the UN-DE CRIPS in Section 4.3.

Israel has neither ratified the legally-binding ILO Convention No. 169 nor did it vote in favour of the Declaration on the Rights of Indigenous Peoples which, although not legally binding, is meant to place a moral obligation on States to respect and fulfill its provisions.

Israel does not recognise the Palestinians as a whole, or the Bedouin specifically, as indigenous people and through the legally sanctioned expropriation of Palestinian land has absolved itself of any responsibility that would be owing to Palestinians as an indigenous

Sources: Declaration on the Rights of Indigenous Peoples, Arts. 10, 25-32, ILO Convention No. 169, Arts. 6, 13-19. 153 people to not discriminate in its expropriation, to allow effective participation of those concerned, to follow proper procedures, and to pay full and just compensation.

Minority rights are codified in international human rights law in the provisions of article 27 of the International Covenant on Gvil and Political Rights concerning the rights of persons belonging to ethnic, religious and linguistic minorities,540 in the 1992 UN Declaration on the

Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities

(Declaration on Minority Rights) and in other international instruments.

Palestinians are indeed a minority in Israel, in the national, ethnic, religious and linguistic senses and are increasingly using the language of minority rightst o put forward equality

claims in the allocation of public resources and planning laws. This calling upon of minority

rights protection is not unproblematic, given that Palestinians see themselves as the historical

national majority as one people with the other Palestinians in Occupied Palestinian Territory

and in the region.541 Israel has refused to recognise Palestinians as a historical national

minority, preferring to classify all non-Jews in Israel based on religious minority status.542

Art. 27 was generally understood as negative rights of non-interference rather than 'positive rights to assistance, funding, autonomy or official language status', see Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford, New York: Oxford University Press, 2007) at 201 [Kymlicka, Multicultural Odysseys']. 541 Abu Hussein and McKay, Access Denied, supra note 51 at 44. 542 This is in keeping with what Lustick refers to as Israeli 'segmentation' of Palestinian citizens as a means to better control them. See Ian Lustick, Arabs in the Jewish State: Israel's control of a national minority (Austin: University of Texas Press, 1980). 154 The major theme of the Declaration on Minority Rights is the protection and promotion of the minority's identity, as stipulated in Article l.l.543 Although identity is not comprehensively defined, cultural identity could arguably include the right to maintain traditional means of economic pursuits and ways of life such as cultivation and herding on traditional lands.544 The Declaration also calls for the effective participation of minorities in public life and in decisions that affect them (Article 2) and for participation in economic development (Article 4.5). As with UN-DECRIPS, the Declaration on Minority Rights contains in Article 8.4 the restriction on the rights provided for in the declaration should it undermine territorial integrity.

With regard to land rights, the disparity between the international standards set by minority rights and those set by indigenous rights is considerable. As detailed above, the protections to indigenous peoples with regard to their land are far greater than those offered to minorities. Also, the right to participation in economic life for minorities versus the right to cktemine economic development for indigenous peoples has led the international legal scholar Miriam Aukerman to question the justification for such a differentiation, calling for international human rights law to look at the underlying justification for the development of

Art. 1 states, 'States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity'. 544 Patrick Thornberry, The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis and Observations (London: Minority Rights Group, 1993) at 21, UN Human Rights Committee (1994) General Comment 23 (5), on Article 27 of the ICCPR, UN Doc CCPR/C/21/Rev.l/Add.5 of April 26. 155 rights rather than a simplified labeling of different groups with essentially similar concerns.545

Will Kymlicka, the Canadian political philosopher, looks at the differentiation between minority and indigenous rights and paints an even grimmer future than just the need to re­ label. Noting that ethnic/national minorities have not fared well under die Westphalian system of sovereign nation-states, he writes that national minorities under the current UN framework are in the same category as new minorities entitled only to generic rights, when in truth they are homeland minorities like indigenous minorities and so should have equal protections allocated to them. This has brought about a shift from groups self-identifying as minorities to their self-identifying as indigenous peoples because of the far greater protections offered to groups with the latter status. Kymlicka warns that this could result in a total collapse of the international system of indigenous rights, as the international community will be pressured to retreat from the indigenous rights track and States could limit the scope of application of indigenous rights provisions.546

4.2 Transnational Advocacy and the Interaction between Israel and the International Human

Rights System

The previous section looked at the principles, norms and rules offered by the international human rights law system with regard to land rights, minorities and indigenous peoples. The question remains how such principles, norms and rules are internalized and implemented

545 Miriam J. Aukerman, "Definitions and Justifications: Minority and Indigenous Rights in a Central/Eastern European Context" (2000) 22:1 Human Rights Quarterly 1011. 546 Kymlicka, Multicultural Odysseys, supra note 540 at 220-227. 156 domestically, thereby affecting the political transformation process. For this, I would like to turn to the Pow&(fHwmnRi$)ts,547 and in particular the work of Risse, Ropp and Sikkink

The authors propose a five-phase 'spiral model' of human rights change to explain the process. They argue that the diffusion of international human rights norms depends on the sustainability of local and transnational actors who linkup with transnational regimes, to alert Western public opinion and Western governments. These transnational advocacy networks serve three purposes:

They put norm-violating states on the international agenda in terms of moral-

consciousness-raising.

They mobilize domestic opposition groups, social movements and NGOs in the

norm-violating states by empowering and legitimizing their claims.

They reduce options for repression by target states by creating a transnational

structure pressure simultaneously'from above' and 'from below.'548

The spiral model can be understood as having five progressive phases of human rights change. The first stage is marked by state repression due to weak domestic/transnational opposition; second, denial by the repressive state of the validity of human rights norms as subject to international jurisdiction; third, tactical concessions by the State resulting in policy or regime change as a result of sustained bilateral and multilateral transnational network

547 Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink (eds.), The Power of Human Rights: International Norms and Domestic Change (UK: Cambridge University Press, 1999), see in particular 1- 38, 234-278. 548 Here they borrow 'from above and below' from Alison Brysk, "From Above and Below: Social Movements, the International System, and Human Rights in Argentina" (1993) 26:3 Comparative Political Studies 259. 157 pressure and an increased mobilization of domestic human rights actors; fourth, prescriptive status as the state accepts international norms, ratifies international treaties, and institutionalizes norms domestically; and finally, human rights assume center-stage in societal discourse giving rise to rule-consistent behaviour by the State (which in turn reduces the need for network mobilization).

Following the various case studies549 that follow the elaboration of the 'spiral model', Risse et al conclude that in all the cases studied there is a common movement along the general trajectory of the 'spiral model'. This they offer as proof of the universality of human rights and as refutation of the notion that certain types of political, economic, or social systems cannot be subjected to change as international human rights are fundamentally alien to particular cultures or regions of the world, as asserted by Huntington.550

While there is strength in the significant body of literature on the socialisation aspect of the

'spiral model' whereby principled ideas held by individuals become norms in the sense of collective understandings about appropriate behaviour which then leads to changes in identities and behaviour551 and the constructivist understanding that international norms are

The authors studied the following 'target countries': Kenya, Uganda, Chile, Guatemala, Morocco, Tunisia, Indonesia, the Philippines, Poland, Czechoslovakia, and South Africa. Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon & Schuster, 1996). 551 Martha Finnemore, "International Organizations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organization and Science Policy" (1993) 47:4 International Organization 565, John G. Ikenberry, and Charles A. Kupchan, "Socialization and Hegemonic Power" (1990) 44:3 International Organization 283, Harald Miiller, "The Internationalization of Principles, Norms, and Rules by Governments: The Case of Security Regimes" in Volker Rittberger (ed.), Regime Theory and International Relations (Oxford: Clarendon Press, 1993) 361. 158 more likely to be implemented in the domestic context if they resonate and fit with existing collective understandings embedded in domestic institutions and political cultures552, there are central aspects of the 'spiral model' theory diat raise critical questions. One aspect is the central role given to 'Western governments/regimes/public opinion' as adjudicators of human rights. Various scholars have asserted that contemporary international human rights law in its present form is essentially based on a western, liberal concept of human rights;553

Jeffrey T. Checkel, "International Norms and Domestic Politics: Bridging the Rationalist-Constructivist Divide" (1997) 3:4 European Journal of International Relations 473, Andrew P. Cortell, and James W. Jr. Davis, "How do International Institutions Matter? The Domestic Impact of International Rules and Norms" (1996) 40 International Studies Quarterly 451. 553 This is one view expressed by TWAIL (Third World Approaches to International Law) scholars. According to Chimni, one such scholar, TWAIL takes life as a response to the processes and structures of global capitalism that have created colonialism, and since its demise neo-colonialism, so that for those in the third world, there is a common history of subjection to colonialism and/or continuing underdevelopment. See B.S. Chimni, "Third World Approaches to International Law: A Manifesto" in Anthony Anghie, Bhupinder Chimni, Karin Mickelson, Obiora Okafor (eds.) The Third World and International Order: Law, Politics and Globalization (Martinus Nijhoff Publishers: Leiden, Boston, 2003) at 49. C.L. Lim's piece discussing the approach of T.O. Elias, the late Nigerian jurist and former head of the International Court of Justice (ICJ), to international law illustrates how the western, liberal legacy of international law has restricted the realisation of international law's (IL) claim to be universal and inclusive. He cites that customary international law pre-1947 was the domain of essentially Western states and not those in the third world, many of whom were still colonised, and although there was promise of change in the UN GA's 1947 establishment of the International Law Commission to include perspectives and contributions of those historically denied participation in the formation of customary IL, we see how UN law is essentially seen as 'soft law' in the unbinding nature of its declarations, and how its treaties' binding nature is always a matter of discussion/interpretation, as opposed to the 'hard' law so formed among European states for nearly four hundred years pre-1947. He also points to the western, liberal bias of international law in how the West had tried to reduce the principles of the NIEO (New International Economic Order) to the status of soft law, irrespective of the fact that many of its principles were widely accepted by the vast majority of states. As NIEO stood as a real threat to the promotion of neo-liberal economic policies it led Western states to withhold their consent, thereby throwing the legal quality of the NIEO into doubt. See C.L. Lim, "Neither Sheep nor Peacocks: T. O. Elias and Post-colonial International Law" (2008) 21 Leiden Journal of International Law 295. See also Upendra Baxi, "Voice of Suffering and the Inclusion of Human Rights", (1998) 8 Transnational Law and Contemporary Problems at 133 for human rights' 'logic of inclusion and exclusion' in regard to the Third World - that the Third World is the principal area of deployment of human rights (HR) law but its narrative and history are absent in HR law. Some have asserted that human rights in its contemporary form is neo-colonialism in being cultural imperialism. See Gary Peller, "Cultural Imperialism, White Anxiety, and the Ideological Realignment of Brown" in Austin Sarat (ed.), Race, Law, and Culture: Reflections on Brown v. Board of Education (New York: Oxford University Press, 1997) 193. For an engaging, critical Marxist angle on contemporary international law and public international law in particular see B. S. Chimni, "An Outline of a Marxist Course on Public International Law" (2004) 17 Leiden Journal of International Law 1. See generally the 159 however does that mean that western regimes shcdd play the role of judge and what qualifies them to be excluded from the spiral model's 'target countries'? I will return to this point in

Section 4.3 where I engage in a longer discussion on how international human rights law in its present form needs to be rethought in order to achieve substantive fulfillment on the social justice issues relevant to the Naqab Bedouin.

What I would like to turn to is the concept of political transformation of the State via the adaptation, argumentation and institutionalization phases of social interactions. Leaving aside its liberal biases, there is strength in the socialisation aspects of the 'spiral model' as evidenced by the aforementioned case studies and their associated conclusions reached by the authors. Therefore, I would like to attempt to fit Israel into this 'spiral model' by looking at the interaction between Israel and the international sphere. Palestinian society via its social movements, civil society and its transnational partners in organisations such as Amnesty

International and Human Rights Watch regularly engage in international/transnational advocacy at the United Nations and the European Union as a means of pressuring the State into respecting Palestinian rights.554 However, successful transnational advocacy and success in bringing about 'rule-consistent behaviour' (the fifth and final stage of socialisation) of the

scholarship of the following TWAIL scholars who in their critiques seek to challenge the elitist, liberal, state-centric, western tendencies of international law in Helena Alviar, Anthony Anghie, Keith Aoki, Upendra Baxi, Lan Cao, B.S. Chimni, Yash Ghai, Ruth Gordon, Shadrack Gutto, Hope Lewis, Tayyab Mahmoud, Makau wa Mutua, Obiora Okafor, Balakrishnan Rajagopal, and Hani Sayed. Balakrishnan RajagopaPs work will provide the theoretical framework for Section 4.3's analysis of how international HR law, although holding plenty of promise in setting norms and standards for human rights fulfilment, needs rethinking on specific issues as they particularly apply to the Naqab Bedouin in Israel. 554 For examples of legal transnational/international advocacy undertaken by Palestinian society in Israel, see Adalah - The Legal Center for Arab Minority Rights in Israel, "International Advocacy", online: http://adalah.org/eng/intladvocacy2007.php 160 State, is more dependant on how important it is for the State to be part of the international community of 'civilized nations' and to avoid the pariah label, as Risse et al put it. What has been the receptiveness of Israel to the international legal system, and international human rights law in particular?

Although Israel has ratified the principal human rights treaties such as the ICCPR, ICESCR,

ICERD, CRC and CEDAWand although legally bound by their respective provisions according to international law, the treaties according to Israeli law do not have force domestically unless a law is passed to that effect in the Knesset (Israeli Parliament).555 It must be said, though, that this is fairly common practice among the majority of states, where ratification of international treaties are not binding on the state, unless their provisions are implemented in domestic legislation.556 Israel has not passed domestic legislation to give

In its State Report to the Human Rights Committee on its compliance with ICCPR, Israel has written, 'International agreements are not, as such, part of Israeli internal law, and the Knesset generally does not legislate by way of direct reference to such agreements. Accordingly, the provisions of the Covenant have not been made a part of internal Israeli law by an enactment of the Knesset. However, the basic rights protected by the Covenant are to a very great extent already guaranteed by internal Israeli legislation or case law...' See Initial Report of Israel to the UN Human Rights Committee under the International Covenant on Civil and Political Rights, UN doc. CCPR/C/81/Add.l3 of 9 April 556 The compliance monitoring bodies of the UN treaties have understood that domestic institutions have a significant role to play if international human rights law is to be implemented in states, and that the remedies they provide are only supplementary to domestic remedies. See Philip Alston and Craig Scott, "Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney's Legacy and Grootboom's Promise" (2000) 16:2 South African Journal of Human Rights at 212, Committee on Economic, Social and Cultural Rights "The Domestic Application of the [International] Covenant [on Economic, Social and Cultural Rights]", General Comment No. 9, UN Doc E/C. 12/1998/24, December 1998 para 4. Scott and Alston assert that the South African Constitution's Bill of Rights, as a stark contrast to that of the US Constitution in that it focuses on the positive duties of the state towards human rights fulfillment, is a model worth replicating internationally for the implementation of international law in domestic legislation, s 39 of the Constitution reads that in interpreting the Bill of Rights, international law must be considered, and foreign law may be considered. See Philip Alston and Craig Scott, "Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney' s Legacy and Grootboom's Promise" (2000) 16:2 South African Journal of Human Rights at 214-215. 161 effect to these international treaties except to the UN Genocide Convention.557 Israel has not ratified the 1969 Vienna Convention on die Law of Treaties and accordingly has drawn a distinction between customary law and conventional law.558 Customary law is considered the law of the land in Israel unless specific local legislation overrides it. Israeli courts have repeatedly interpreted the UDHR as representing customary international law and according to Israeli law, norms of customary international law cannot be overridden unless they specifically clash with laws passed by the Knesset.559 Former Chief Justice Barak has said that

Israeli law should be interpreted where possible according to Israel's international commitments, and that only express, clear and unequivocal language which contradicts an international obligation can override it.560 Conventional law is applicable in Israel only if provided for in local legislation and as a result individuals and collectives cannot invoke rights solely based on the ratification of a treaty. Accordingly, the Court has held that the

Hague Regulations Concerning the Laws and Customs of War on Land, 1907 are part of customary law and therefore applicable in Israel while the Geneva Convention Concerning the Protection of Civilian Persons in Time of War, 1949 is part of conventional law and therefore not enforceable in Israel.561

Following the enactment of the Crime of Genocide (Prevention and Punishment) Law, 1950, Sefer Ha- Chukkim number 42, 137 (7th April 1950),see Abu Hussein and McKay, Access Denied, supra note 49 at 54. 558 See Eyal Benvenisti, "The Influence of International Human Rights Law on the Israeli Legal System: Present and Future" (1994) 28 Israel Law Review 136. 559 Natan Lerner, "Israel's International Obligations Concerning Minorities and Discrimination" in International Center for Peace in the Middle East, Relations between Ethnic Majority and Minority (Tel Aviv, 1987) at 7. 5 Aharon Barak, Interpretation in Law, Vol. 11, Statutory Interpretation (Jerusalem: Aharon Nevo Publishing Limited, 1993) (Hebrew) at 20. 561 David Kretzmer, "Constitutional Law" in Amos Shapira and Keren C. DeWitt-Arar (eds.), Introduction to the Law of Israel (Kluwer Law International, 1995) at 57. 162 The initiatives made to protect women's right to equality in the 1951 Equal Rights for

Women Law and in the 1998 Authority for the Advancement of the Status of Women are exemplary of how proactive measures can be taken if the political will exists.562 As mentioned in Chapter 3, die period from the mid-1970's and 1980's marked a court identified with judicial activism and judicial review that led to numerous positive decisions for civil liberties in Israel such as protecting the right to freedom of expression in the elimination of theatre censorship and reduction of film censorship,563 in prohibiting gender discrimination and in ordering women's inclusion in public religious bodies,564 and in protecting freedom of expression through reviewing administrative action in security matters.565 Alexandre (Sandy) Kedar remains optimistic that Israeli law has the tools to apply the relevant international norms to the case of the Arab Bedouin based on the principles of human dignity, equality, and distributive justice.5661 agree with Kedar that as the principle of human dignity is provided for in Basic Law: Human Dignity and Freedom (1992),567 and as the Supreme Court held in the Qi'adari68 case that equality is a fundamental value in the

Abu Hussein and McKay, Access Denied, supra note 51 at 56. 563 Laorv. Films and Plays Censorship Board, HC 14/86,41(1) P.D. 421, Universal City Studios Inc. v. Films and Plays Censorship Board , HC 806/88, 43(2) P.D. 22. See Zaharah R. Markoe, "Note: Expressing Oneself Without a Constitution - The Israeli Experience" (2000) 8 Cardozo Journal of International and Comparative Law at 319-346, cited in Holzman-Gazit, Land Expropriation, supra note 5 at 49. 564 Shakdiel v. Minister of Religious Affairs, HC 153/87, 42(2) P.D. 221, Poraz v. Municipality of Tel Aviv- Jaffa, HC 953/87, 42(2) P.D. 309, cited in Holzman-Gazit, Land Expropriation, supra note 5 at 49. 565 In Schnitzer v. The Chief Military Censor, the Court suspended a decision of the military censor to suppress an article criticising the Israeli secret service, the Mossad, owing to the fact that the censor had failed to show how the article could realistically cause serious harm national security. Schnitzer v. The Chief Military Censor, HC 680/88,, 42(4) P.D. 617, cited in Holzman-Gazit, Land Expropriation, supra note 5 at 50. 566 Kedar, "Negev in International Perspective", supra note 506 at 7. 567 Basic Law: Human Dignity and Freedom, 1992, Sefer Ha-Chukkim number 1454, 90. 568 Qa'adan v. Israel Lands Administration (2000), HCJ 6698/95, P.D. 54 (1) 258. 163 State and that every authority in Israel is obligated to treat individuals equally, including in the allocation of state lands,569 the Israeli legal system does have the legal principles to deliver on the land claims of the Naqab Bedouin. Doing so would be a matter of political will on account of the executive, or in the Supreme Court drawing on existing principles in the system to challenge executive action that runs contrary to the principles of human dignity and equality

Nevertheless, UN human rights treaty monitoring bodies have repeatedly criticized Israel for its lack of adherence to human rights norms by failing to take appropriate measures, including at the legislative level. In the 1998 Concluding Observations of the Human Rights

Committee on Israel's compliance with ICCPR,570 the Committee noted "with regret that, although some rights provided for in the Covenant are legally protected and promoted through the Basic Laws, municipal laws, and the jurisprudence of the courts, the Covenant has not been incorporated in Israeli law and cannot be directly invoked in the courts".571

Moreover, the Committee expressed "deep concern at the continued state of emergency prevailing in Israel, which has been in effect since independence".572 In the 2003 Concluding

Observations of the Committee on Economic, Social and Cultural Rights, the Committee

stated that it

".. .is deeply concerned about the continuing difference in treatment between Jews and non-Jews, in particular Arab and Bedouin communities, with regard to their enjoyment of economic, social and cultural rights in the State party's

569 Ibid, at 258, 272-274, para. 21,23. 570 UN Doc. CCPR/C/79/Add.93 on August 1998. 571 Ibid, at para 9. 512 Ibid, at para 11. 164 territory. The Committee reiterates its concern that the 'excessive emphasis upon the State as a 'Jewish State' encourages discrimination and accords a second-class status to its non-Jewish citizens'."573

Also telling of the receptiveness of Israel to international human rights law is its response to the International Court of Justice's (ICJ) Advisory Opinion on the "Legal Consequences

Arising from the Construction of the Wall by Israel".574 The ICJ called for halting of construction of the Wall on the West Bank, for its dismantling, and for the payment of reparations for the damage caused by the construction. Israel however questioned both the jurisdiction and propriety (whether granting of an opinion on the issue would circumvent the requirement of consent for judicial resolution of inter-state disputes and whether the Court had adequate information before it) of the Court to issue an advisory opinion on the matter.575 In response to the 2008 report issued by John Dugard, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 for the U.N.

Human Rights Council, which made the causal link between Palestinian terrorism and the

Israeli occupation, Israeli officials dismissed the findings as one-sided and as a source inflaming the conflict between Arabs and Jews.576

573 UN Doc. E/C.12/17Add.90 on 23 May 2003 at para. 16. 574 International Court of Justice (ICJ), "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory", Advisory Opinion of July 9, 2004. 575 For fairly comprehensive Israeli analyses on the ICJ decision, see 38 Israel Law Review (2005), which is a double issue of the journal dedicated to the opinion. 576 "UN expert: Palestinian terror 'inevitable' result of occupation", Ha 'aretz (February 26 2008), online: http://www.haaretz.com/hasen/spages/958358.html, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, John Dugard, UN doc. A/HRC/7/17 on January 21 2008. Israel's receptiveness to international law is not confined to its interaction with the United

Nations'577 treaties and instruments or to the advisory opinions of the ICJ but also to international jurisprudence that develops as customary international law. There have been a number of gains in the recognition of the rights of indigenous people through the courts, as evidenced in the Mabd78 case in the Australian courts which recognised Aboriginal title to the Torres Strait Islands. In the DelgamimkiS79 case in Canada the Supreme Court recognised aboriginal title and the admissibility of oral history as evidence in claims of land ownership, though no Canadian court has issued a declaration of existing Aboriginal title preferring to leave the resolution of claims to the treaty negotiation process.580 Such advances in foreign jurisprudence, although not binding on the State of Israel, hint to how far behind Israel is. In particular, the obliteration by the High Court of Bedouin oral history as evidence in land ownership claims compares unfavourably to developments in Australia and Canada. Not only are Bedouin encampments not seen as settlements, thereby ascribing a wamndomialium

(empty space) or terra mtllius characterisation to the land, but the narrative itself in the oral testimonies is also seen as inadmissible (see Section 3.3) and to date the State of Israel has not been receptive to international jurisprudence on these matters.

Also worth considering is how the Israeli government has often times come to see the UN as an anti- Israel body. Pomerance, in my opinion, conveys general Israeli government mistrust of the UN system when she refers to the 'unbounded majoritarianism of the General Assembly' which has led to 'worrisome trends infecting ICJ-GA nexus' and how this puts into question the ability of the ICJ to 'strengthen world order in the age of the global terrorist scourge'. That Israel may be anti-human rights vis-a-vis the Palestinians or that terrorism can also be committed by the sovereign seems to be purposefully excluded from the equation. See Michla Pomerance, "A Court of UN Law" (2005) 38 Israel Law Review 134. 578 Mabo v. State of Queensland, (1992), 175 CLR 1 (HCA). 579 Delgamuuhv v. British Columbia, [1997] 3 SCR 1010, [1998] 1 CNLR 14. 580 Thanks to Prof. Bruce Ryder, Associate Professor at Osgoode Hall Law School, York University for bringing this fact to my attention. Also see Patrick Monahan, "The Road Ahead: Negotiation or Litigation" in Owen Lippert (ed.), Beyond the Nass Valley: National Implications of the Supreme Court's Delgamuuhv Decision (Vancouver: Fraser Institute, 2000) 521. 166 As detailed in the first section of this chapter, domestic legislation enshrining the right to equality and freedom from discrimination, the right to adequate housing, the right to land as well the rights accorded to minorities and indigenous peoples vis-a-vis the Naqab Bedouin in

Israeli legislation and case law is either absent or significantly limited in comparison to international standards. Furthermore, there is no commission on equality and no mechanisms to ensure that policy and practice are brought into line with international standards. The receptiveness of Israel to the key issues of social justice that shape the land crisis in the Naqab is severely constrained. However, this lack of receptiveness may not in itself be the bottle neck in the trajectory to progress. Rather, it maybe the emphasis of the

'spiral model' on shaming of States that causes them to adopt 'rule-consistency' that brings it about. Therefore, according to the model, moral consciousness raising does not come about because of, as Rousseau put it, our natural repugnance at seeing a fellow being suffer,581 it comes about so the State can then belong to the elite club of civilized nations. If the State is placed at the center of the human rights socialisation process - as the oppressor, as the one to influence to bring about human rights change, as the one to change, and then as the one that propagates human rights norms, it maybe the power vested in the State that is the problem. It maybe that territorial integrity, and the sanction for it in international law, in some cases brings with it suppression of minorities and opposition groups (as will be explored below in the Naqab Bedouin case). So the question to ask is if the state-centric

1 Jean-Jacques Rousseau, "Preface" in Jean-Jacques Rousseau, A Discourse on the Origin of Inequality, (trans. P. Coleman) (New York: Oxford University Press, 1994) at 3. 167 focus is an aspect of the 'spiral model' in particular, or that of international human rights law in general, and if so, how does that bear on minority populations?

4.3 Interpreting Human Rights Law through Social Movements Theory

I would like to turn now to the work of human rights scholar Balakrishnan Rajagopal, and his book International Law'fromBelow™2 In it, Rajagopal calls for a r&hinkingot international law from the perspective of social movements theory. He says that international law's state- centered rhetoric and mainstream scholarship's reliance on realist or liberal normative frameworks do not appreciate the fundamental challenge that social movements pose to international law. He distinguishes these new social movements from old ones with principally political or economic characters, as having embraced adtwv as a terrain of resistance and struggle and he cites the Working Women's Forum (WWF) in India and the

Zapatistas in Chiapas as examples.583

He also prompts us to question the constitution of modern human-rights discourse as the sole approved language of resistance and as the next grand discourse of emancipation and

liberation. Rajagopal's challenging of contemporary international law raises interesting

Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (UK: Cambridge University Press, 2003) [Rajagopal, International Law from Below]. 583 As to imbibing the transnational, Rajagopal says that in the cases he has studied, social movements exploit the transnational when it visits them in locations, without actively pursuing to expand their movement into the transnational/international realm, see ibid, at 252. 168 questions584 and those most pertinent to this study are i) the idea of 'territorial integrity as a restriction on indigenous peoples and minority rights, ii) the doctrine of 'emergency5 that allows states to derogate from their human rights responsibilities, and iii) the idea of

'progress' and 'catching up to the West' in the normative framework of third world development585. In placing the state at the center of the human rights corpus, all of these take some strength from the idea that 'the masses are incapable of governing themselves'.586

And all of these have given credence to international law to divorce itself from the struggles of the masses. If international standards are to be the measure by which we judge Israel's relationship with the Naqab Bedouin, then those international standards need to be critically rethought on the aforementioned issues.

'Territorial integrity' as a restriction on indigenous peoples and minority rights587

Rajagopal has argued that the idea that human rights is an anti-state discourse is a myth.588

Although the State is the subject of scrutiny in cases of human rights violations and it is the state which has a duty not to infringe on the rights of individuals and communities,

See for example his discussion on 'The prohibition of torture and the 'normalization' of pain' and 'Human rights and the economic model of violence', ibid, at 182-186, 194-202 respectively. 585 In common practice, Japan in Asia, Canada and the United States in northern America, Australia and New Zealand in Oceania, and Europe are considered 'developed' regions or areas, all other countries, including Israel, are 'developing'. In international trade statistics, however, Israel is classified as a developed country. See United Nations Statistics Division, "Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings", online: http://unstats.un.org/unsd/methods/m49/m49regin.htm. 586 Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 1963) at 188. See Rajagopal, International Law from Below, supra note 582 at 189-194. 588 Ibid, at 189. For a similar argument, see David Kennedy, "The International Human Rights Movement: Part of the Problem?" (2002) 15 Harvard Human Rights Journal at 113. 169 nevertheless contemporary human rights discourse enables the expansion of the state and all its bureaucratic institutions in putting into action its sovereignty, which in the Foucaltian sense equates to governance589 and this solidifies the role of human rights discourse in the etatization of social life. He then questions if this over-reliance on State structure to promote human rights, which thereby reproduces the same structures that have prevented the realization of those right in the first place, would not benefit in seeing human rights promotion taking place outside of the state i.e. in social movements.

Article 46.1 of the UN-DECRIPS, a blunt confirmation of the non-derogable character of

State sovereignty, mentions that no action impairing or dismembering territorial integrity or political unity of sovereign states in the exercise of the provisions of the Declaration is authorised.590 This provision again puts the State at the center of the human rights corpus, allowing for the derogation of the rights of its indigenous inhabitants should the State's sovereignty be challenged. As mentioned earlier, the Naqab Bedouin paid little heed to the international or district boundaries set up by the Ottoman Empire and moved freely into the

Transjordan region and the Sinai, so much so that the Israeli historian, Marx concluded that there was a single Bedouin population stretching from the Sinai to the Naqab.591 These were traditional patterns of movement and livelihood existent and shared among the Naqab

589 Foucault distinguishes between sovereignty and government, "To govern then means to govern things." 'Governmentality' includes the organised practices by which subjects are controlled, and how governments produce citizens best suited to fulfil governmental policy. See Michel Foucault, "Governmentality," in Graham Burchell, Colin Gordon, and Peter Millers (eds.), The Foucault Effect: Studies in Governmentality: with Two Lectures by and an Interview with Michel Foucault (Chicago, Illinois: University of Chicago Press, 1991) at 94. 590 United Nations, UN Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 at Art. 46.1. Marx, Negev Bedouin, supra note 17 at 7. 170 Bedouin population, nearly 90% of whom were forcibly or coercively dispersed in the formation of the sovereign state of Israel.

According to Article 46.1, not only is the State a principal benefactor of human rights, die right to State sovereignty supersedes all the specific collective rights of indigenous peoples which include the rights to their lands, territories and resources, to maintain their cultures, to recognition of their distinct identities, to self-government and self-determination, to freely define and pursue their economic, social and cultural development and to be compensated for historical injustices through possibilities of restitution or intergenerational justice.

It was the realization of state sovereignty that created the land rights crisis in the Naqab. The legitimation of the creation of the State of Israel allowed the Zionist movement within the framework of a sovereign, to legislate and enforce laws to suppress and subjugate the native population to demographic and land imperatives for the benefit of the settlers. It is contemporary human rights discourse's continual reliance on the State, with all its

institutions and bureaucracy and its civil liberties rulings and its constitutional 'revolution', which, if the status quo so remains, will allow the land rights crisis to persist.

171 The idea of 'progress' and 'catching up to the West' in the normative framework of Third

"World development

According to Rajagopal, human rights discourse has generally treated the Third World as object, as a domain or terrain of deployment of its universal imperatives.592 Indeed this was the very basis of the 'spiral model' proposed by the transnational advocacy theorists referred to in Section 4.2, where the offending state or 'target state' was a Third World country in

Africa, the Middle East, Asia or Latin/Central America and the West in their role as liberal democracies would be adjudicators of their conduct and when said conduct changes to be human-rights conforming, the third world state is granted entry into the club of civilized593 nations.

There are many parallels in this thinking with that of the Israeli system in terms of dealing with the Naqab Bedouin. Self-positioned as a bastion of western liberal democracy, Israel sought to bring progress to the uncivilized East and with that its associated orientalist narratives, practices, institutions, laws and public policy. The creation of 'development towns' is a manifestation of that civilizing mission. These are residential areas built 'to help' the Bedouin develop, progress, and civilise. From this we are told the story that in their unrecognised 'villages' they were obviously growth retarded, regressive and uncivilized. If we are seeking a change in the orientalist administrative and judicial practices of the Israeli

592 Rajagopal, International Law from Below, supra note 582 at 171. One of Rajagopal's theoretical tracks is TWAIL (Third World Approaches to International Law) scholarship. See supra note 553 for more on TWAIL conceptions of the relationship between the third world and international law. 593 The term strikingly reminiscent to the language used during the Age of Empire that divided the world into civilised and uncivilised nations, thereby giving moral sanction to colonialism and imperialism; see A. W. Brian Simpson, Human rights and the end of empire: Britain and the genesis of the European Convention (Toronto : Oxford University Press, 2001). 172 system, we also need to reform and rethink the orientalist tendencies of international human rights law with regard to third world development. If there is to be comity, interaction and reciprocity between the Israeli and international legal systems, international law needs to realign itself to the needs, concerns and cultural specificities of the subaltern classes of the

East, with the East deciding what is progress for them and what role, if any, the market economy should play in it.

The doctrine of 'emergency'

Rajagopal writes that the doctrine of emergency in Article 4 of the ICCPR594 has turned out to be the Achilles' heel of the human rights doctrinal corpus as it allows states wide-ranging authority to derogate from their responsibilities under the covenant in the name of national emergency.595 Rajagopal argues that Britain's introduction of the article in the drafting stage of the covenant596 was a continuation of a characteristic of Britain's anticolonial wars since the 1940s and 1950s when they introduced emergency regulations in the management of third world nationalism. Such emergency regulations were prompted by their fear of the masses and the need to control a rapidly deteriorating situation to their own advantage.597

The colonial policy of emergency that was invented as an ad hoc response to combat mass

Article 4 reads in part, 'In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation... No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision'. 595 See Rajagopal, International Law from Below, supra note 582 at 176-182. 596 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Strasbourg, Va., Arlington, Va.: N.P. Engel, 1993) at 76-77. 597 See also Frank Furedi, Colonial Wars and the Politics of Third World Nationalism (London, New York: LB. Tauris, 1994). 173 resistance is now taken for granted as an essential part of the international legal corpus. This he says should prompt the question whether the human rights corpus is fatally flawed in carrying over the same fear, contempt, and loathing of the masses and the same legal void that sanctions governments to take extreme measures without question.

This doctrine of emergency is relevant in the case of the Naqab Bedouin because Israel is still officially in a state of emergency. The 2007 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism598 is critical of this fact and states,

"The Special Rapporteur is troubled by the fact that a challenge to the lawfulness of the state of emergency has been pending before the Supreme Court of Israel for more than eight years. The Human Rights Committee has repeatedly expressed its concern with the sweeping nature of measures under the declared state of emergency.599 The Special Rapporteur reiterates the Committee's position that recourse to derogations under article 4 must be temporary and exceptional in nature, and that the enunciation of certain rights within the International Covenant on Civil and Political Rights already provide for the proportionate limitation of rights as prescribed by law and necessary for the protection of national security or public order, including articles 12 (3), 19 (3) and 21, relating to the freedoms of movement and residence, opinion and expression, and peaceful assembly".600

The Defence (Emergency) Regulations (1945) used by Israel and adopted from the laws of

the British Mandate are similar to those emergency regulations that Rajagopal cites were used

by Britain to contain anticolonialism in the third world. In retaining these regulations, Israel

is proclaiming that in order to contain the native masses to their advantage, they need to

5K UN Doc. A/HRC/6/17/Add.4 on November 16 2007. 599 official Records of the General Assembly, Fifth-eighth session, Supplement No. 40 (A/58/40), vol. I, chap. IV, para. 85(12). 600 Ibid. See also ibid., Fifty-seventh session, Supplement No. 40, vol. I, annex VI, para. 2. 174 impose draconian measures like colonial Britain did in the 1940s and 1950s. The proclamation in itself is an indictment of Israel as a colonial power.

The Defence Regulations consist of 170 articles and formed the legal basis for the Military

Administration which sanctioned the concentration of the Naqab Bedouin in the closed military zone/reservation or siyag until 1966. This in turn facilitated the expropriation of

Naqab Bedouin lands under the Absentees' Property Law 1950, the Land Acquisition

(Validation of Acts and Compensation) Law 1953 and other various provisions in the

Emergency Regulations themselves.601 The violence of forced concentration, displacement and land expropriation that took place under the emergency regulations as well as the perpetual state of emergency has legally sanctioned Israel to derogate from its responsibilities under the ICCPR since its foundation.

The doctrine of emergency codified in international law and local Israeli law as adopted from the British Mandate are a fundamental challenge to the very essence of the human rights corpus. The inherent dignity of the human being, a principle meant to inform international human rights law, is made moot should a state be the sole adjudicator of when 'the life of the nation' is under threat. Once more, if Israel is supposed to undergo a socialisation process through the actions of transnational advocacy within the international system, the validity of the 'emergency' doctrine in the human rights corpus must be critically scrutinized.

For further discussion on the use of legislation to expropriate land see Section 3.2 supra. 175 In order to facilitate the rethinking of the ideas of i) 'territorial integrity as a restriction on indigenous peoples and minority rights, ii) the doctrine of 'emergenc/ that allows states to abrogate from dieir human rights responsibilities, and iii) the idea of 'progress' and 'catching up to the West', international law needs to emphasize the importance of the extra- institutional (subaltern communities and individuals) in the success and failure of institutional forms and give realization to the role played by ordinary people in legal transformation.

Social movements like the indigenous movement among the Naqab Bedouin in the Regional

Council for the Unrecognised Villages,602 and the work of activist Nuri al-'Oqbi,603 that emphasize a traditional economy of pastoralism/raising livestock/agriculture and that choose the living arrangements of tents pose, in the words of Rajagopal, radical epistemological and theoretical challenges to the ideas of modernity and development.604

As long as Israel is given the legal and moral sanction to be the ultimate determinant in development and human rights of the Naqab Bedouin, at best we can hope for modest

The Regional Council for the Unrecognised Villages (RCUV) is a grassroots, Bedouin-based NGO that works with the unrecognised Bedouin villages of the Naqab. The RCUV represents the community before Israeli policy makers, develops alternative plans for the villages, and works on various community empowerment initiatives. See their online website for more information, www.rcuv.net. 60 Nuri al-'Oqbi instituted the Association for Support and Defence of Bedouin Rights in Israel, a grassroots Bedouin NGO, as a means to gain recognition for his tribe in the village of' Araqeeb. See Dukium, The Negev Coexistence Forum Newsletter (September 2007). 604 Rajagopal offers a note of caution - that not all of these movements were unproblematic for minorities and women. Other movements that were also problematic still had powerful ideological upsides. He cites the Iranian Revolution as an example, that although violent and dictatorial, it enabled Iranians in culturally legitimate ways to question what went wrong with the Shah's regime of total alienation from Islam and a violent modernization process. See Rajagopal, International Law from Below, supra note 582 at 236. 176 human rights fulfillment provided in a piecemeal fashion605 and very likely no social justice on the issue. As stated above, the issue of land is a central tenet in the Israeli political and legal culture. The concentration of a significant majority of Jews on as much land as possible is seen as crucial to the survival of the State as Jewish. In light of this, it is certainly naive to expect the fulfillment of land rights of the Naqab Bedouin as an indigenous people or simply even as a minority if it is left up to the State, Israel, to be the principal benefactor of those rights.

It cannot be denied that international human rights law has made major, positive contributions to various individuals, communities, and societies across the globe. It is for this reason I articulated on its norms, standards, rules and principles in regard to the right to equality, and the right to adequate housing and its composite rights, since it lays out a framework to protect individuals and communities from undemocratic, arbitrary, and coercive practices of the state. Nevertheless, there is still work to do. It is with that in mind that I delved into the principles of social movements theory as laid out by Rajagopal to see how, based on the principle of human dignity that is meant to inform all human rights,

international human rights law can rethink and realign itself on certain issues to more

substantively deliver on the justice it seeks to provide.

Such as the Court ordering the Ministry of Health to build six mother-child health care clinics in the unrecognised villages where none previously existed (Adalah v. Ministry of Health, HCJ 7115/97) or the Supreme Court approving a settlement between petitioners and Ministry of Education to build the first high school in the Naqab (Abu Sabila v. The Ministry of Education, (2007) H.C. 2848/05), both following petitions put forward by Adalah - Legal Center for Arab Minority Rights in Israel. See Section 3.3 supra for more examples of the minor gains made in the Naqab through petitioning courts. 177 5 Concluding Thoughts

5.1 Injustice and Law's Formal Rationality

As the critical legal studies scholars, Costas Douzinas and Adam Gearey have lamented in their book Critical Jurisprudence: The Political Philosophyof Justice^ modern legal study has experienced a cognitive and moral impoverishment in its legitimation of current policies and its focus on rationalism and positivism at the expense of a humanistic immersion in the legal text.607 It is with similar lamentations that this thesis assesses is the reality of the Israeli legal system in so far as it applies to the Naqab Bedouin.

Reflecting on this thesis' explorations, there are multiple characterisations we can ascribe to

Israeli law. We can interpret Israeli law as culture, that which contributes to its own validation,608 with courts as critical sites of cultural production, where in a formal setting609 new meanings are imposed on the Bedouin, who are re-transcribed as the 'dispersion' that live in 'sporadic settlements' and are 'illegally encroaching on state land'. It is in this cultural storytelling that Israeli society comes to view the Bedouin historical practice of pastoralism as essentially a backward agricultural practice and so does not count as a productive use of

60 Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Oxford: Hart Publishing, 2005) [Douzinas and Gearey, Critical Jurisprudence}. 607 Ibid, at 4. 608 Shamir, "Suspended in Space", supra note 3 at 233, Robert Cover, "Foreward: Nomos and Narrative" (1983) 97 Harvard Law Review 4. 609 Engle Merry, "Law and Colonialism", supra note 3 at 893, Barbara Yngvesson, "Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in New England Town" (1988) 22 Law and Society Review 623. 178 land. The Bedouin are transformed into a people in urgent need of becoming civilised, modernised and developed, and so in order to ease the plight of the Bedouin, the State facilitates this transition from the nomadic to the modern by establishing 'development towns'.610

We can also look at Israeli law as power. It is power in imposing a cultural order on a group with less control.611 As the philosopher Jacques Derrida has written, law is force, both authorized and self-justificatory.612 It is blatantly power and force in its application of The

Defence Laws (State of Emergency) (1945) that forcibly concentrated all of the Naqab

Bedouin in the siyag or closed reservation until 1966; and in expropriating land or transferring it to the authority of the State under the Absentees' Property Law (1950)613, the

Land Acquisition (Validation of Acts and Compensation) Law (1953),614 the Land

(Acquisition for Public Purposes) Ordinance (1943),615 and the Planning and Building Law

(1965).616 It is an impenitent force in demolishing homes and sanctioning the non-provision of essentials such as water and electricity in the unrecognised villages under The Planning

See, for example Chapter 3 and the discussion of the el-Hawasheleh, Abu-Solb and El-Sane cases and the narrations of the ILA and BDA administrative bodies in referring to the Bedouin. Also see Yahel, Havatzelet, "Land Disputes between the Negev Bedouin and Israel" (2006) 11:2 Israel Studies 1-22. For example, in the article Havatzelet writes in reference to the Naqab, 'No wonder it is sometimes referred to as the "Wild South." The "wildness" is manifest above all in the illegal construction and the invasion of state lands by some Bedouin.' 611 Engle Merry, "Law and Colonialism", supra note 3 at 894. 612 Jacques Derrida, "The Force of Law: The Mystical Foundation of Authority" (1989-1990), 11 Cardozo Law Review at 925. 613 Absentees' Property Law, L.S.I, number 37 (March 20, 1950). 614 Land Acquisition (Validation of Acts and Compensation) Law, 1953, L.S.I., number 122 (March 20, 1953). Land (Acquisition for Public Purposes) Ordinance, 1943, Palestine Gazette, Supp., No. 1 at 44 (1943). 616 The Planning and Building Law, 1965, L.S.I., vol. 19 330. 179 and Building Law (1965).617 And it fortifies its power through the extinguishing of possibilities within the current legal framework of recognising indigenous title to land in legislating the Land Rights Settlement Ordinance (1969),618 which transfers all mmat land to the State unless legal title exists, and in legislating the Basic Law: Israel Lands (I960)619 which ensures perpetual ownership of 93% of the land in Israel in the hands of the State, the DA and the JNF.620 As detailed in Chapter 3, the Israeli High Court's role has largely been to facilitate the transfer of ownership and control of Palestinian land to the State and to defer to the executive in cases challenging State ownership and control of land.621 It is with chilling accuracy that the renowned legal scholar Robert Cover's assertion rings true - "legal interpretation takes place in a field of pain and death"622 - thereby reminding us of the Israeli

Court's power in its inaction, deference and rulings to displace, dispossess and shunt to the sidelines the entire Naqab Bedouin community.

We can also look at Israeli law in the amalgam of its power and cultural production characteristics as being colonial. In Chapter 2 the thesis explored how Zionism was colonialism as a consequence of its actions and how it has been transformed, within the framework of the sovereign state of Israel, into a project in colonialism. The Israeli courts' ability to enunciate a justificatory ideology based on the dehumanization of the culture and

6,7 ibid. The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283. 619 Basic Law: Israel Lands, 1960, L.S.I., number 312 (July 29, 1960). 2 For a discussion on the specific legislation bearing on Naqab Bedouin land rights, see Section 3.2. 621 Abu Hussein and McKay, Access Denied, supra note 51 at 294. See Section 3.3 for a discussion on the role played by the Supreme Court in Naqab Bedouin and Palestinian land rights cases. 622 Robert Cover, "Violence and the Word" (1986) 95 Yale Law Journal 1601, cited in Douzinas and Gearey, CriticalJurisprudence, supra note 606 at 9. 180 way of life of an indigenous population via orientalist rationalizations, masking the native with a negative stereotypical image which is utilized to justify his exploitation,623 as seen in the case studies detailed in Chapter 3, is testament to the colonial subscript in the statutory provisions and judicial exclamations directed towards the indigenous Naqab Bedouin.

Furthermore, as the legal scholar M.B. Hooker has stated, a dominant legal system is one that possesses absolute power to define and exclude existing indigenous laws.624 Although legal pluralism during the British mandatory period existed in Palestine and tribal Bedouin courts were set up to adjudicate on Bedouin legal matters,625 there are no such courts, or recognition of Bedouin law and custom in the Israeli legal system, which as a consequence extinguishes from reality understandings of the traditional Bedouin uses of land based on a semi-nomadic pastoral lifestyle, traditional patterns of land ownership, and thereby the centrality of land to Bedouin identity. Rather, in legislating the Land Rights Settlement

Ordinance (1969),626 the State abolished the rrmmt category and stipulated that all lands would be state property unless a formal legal title could be produced.627 Shamir asserts that according to this law the history of the Bedouin ends in 1969, at which time a new legal

Zureik, Palestinians in Israel, supra note 49 at 28-29. M.Barry Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford: Clarendon Press, 1975) at 56 [Hooker, Legal Pluralism]. 625 The tribal courts set up under the British had their shortcomings, as principles such as restorative justice seemed to lose out to more retributive rulings that focused on punishment. 'Aref Abu Rabi'a, A Bedouin Century, supra note 20 at 32-34. For more of a critical look at British application of customary law in colonial and neo-colonial settings see ibid, at 55-189. 626 The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283. The Bedouin are largely unable to prove title because they had not formally registered their lands. This was done to avoid paying taxes and being drafted into the army. Also, given that Bedouin land ownership was based on traditional and age-old understandings within the community, and including the fact that Bedouin autonomy over their lands was recognised during Ottoman and British times, land was not formally registered. See Shamir, "Suspended in Space", supra note 3 at 241, Abu Hussein and McKay, Access Denied, supra note 51 at 113. 181 history begins.628 It is little surprise that Bedouin tribal law has been excluded from the official narrative in Israeli law as the law's conceptualism and humanizing mission to the uncivilized resonates with the role of law in colonial contexts, where law was presented as

"the gift we gave them,"629 and as the legal anthropology scholar Sally Engle Merry writes, as it sought to achieve control over societies and extract land from pre-colonial users for the ultimate benefit of the colonizers.630

We may interpret Israeli law vis-a-vis the Bedouin as a site of cultural production, of power, and of being colonial in nature. In light of this, does Israeli law as applicable to Bedouin land rights deserve to be called a just law? Do not the socialist contexts of Zionism, that Zionism was a movement of poor and oppressed strata of society,631 and that it was an irredentist movement632 fuelled by the pogroms of Eastern Europe, provide justificatory reasons for such a legal system to exist?

The critical legal studies scholars, Douzinas and Gearey borrow from the literary critic and law scholar James Boyd White when they write that justice must be seen as a translation between society's values and their incorporation into legal texts.633 The authors concede that although justice is not easy to define, injustice is. Where there is injustice we feel it, we are

628 Shamir, "Suspended in Space", supra note 3 at 243-244. 629 Fitzpatrick, "Custom as Imperialism", supra note 217. 630 Engle Merry, "Law and Colonialism", supra note 3 at 890-891. 631 Memmi, Colonizer and Colonized, supra note 184 at 38. Hedva Ben-Israel, "Irredentism: Nationalism Reexamined" in Naomi Chazan (ed.), Irredentism and International Politics (Boulder: Lynne Rienner Publishers, 1991). 33 James Boyd White, Justice as Translation (Chicago: University of Chicago Press, 1990), cited in Douzinas and Gearey, Critical Jurisprudence, supra note 606 at 8. 182 moved by it and we sense the urgency to act.634 This thesis has sought to describe and analyze an array of injustices: injustice in a minority group being concentrated in a closed reservation for nearly twenty years based on security and demographic concerns of the State; the deliberate non-provision of water, electricity and basic amenities such as adequate health care and schools as well as destruction of crops as tools of coercion in evicting Bedouin off historical lands; the socioeconomic strangulation of an entire community living in development towns and unrecognised villages that are at the very bottom of the socioeconomic scale in all of Israel;635 the home demolitions and the resultant destruction of the sense of security and dignity to which every human being has a right; the destruction of communities, traditional livelihoods and the imposition of fear, insecurity and lack of faith in the future. Situated in the midst of this reality are the Jewish towns of the Naqab, Omer,

Lehavim and Meitar, all of which are socio-economically in the top 4% of all towns in

Israel.636 It is not just that the law is silent to these injustices, it is that the law has constructed, legislated, amended, executed, erfonsd and thereby legitimated all these injustices.

The moral justifications and exigencies that precipitated the Zionist colonisation of Palestine

simply do not exist presently within the State of Israel. And even if they were to persist, a

subjugation and oppression of another people as a perceived means to guarantee one's own

security, does not hold to the principle of justice.

4 Douzinas and Gearey, Critical Jurisprudence, supra note 606 at 27-28. 5 Negev Statistical Yearbook, Table 16: Local Authorities by Socio-Economic Ascription (2003), online: http://www.negev.co.il/statis/tables/9006.htm. 636 Ibid. 183 I would like to turn to specific aspects of Israeli law that are worth further critique. The concept of 'public purpose' as found in the Mandatory legislation, the Land (Acquisition for

Public Purposes) Ordinance (1943)637 which provides for the expropriation of land for

'public purposes', based on the Minister of Finance's discretion, was used to expropriate

Palestinian land. The point of contention I wish to raise here is not what was already mentioned in Chapter 3, that the law does not provide for the right to a hearing for the property owner before an expropriation order is issued, or that the law does not obligate the

Minister of Finance to disclose the 'public purpose' of the expropriation order.638 Rather, I wish to probe who is the 'public' and how is the 'purpose' decided?

Habermas' theory of a 'public sphere' is instructive here, particularly because it places faith in the democratic possibilities of Western legal systems, something former Supreme Court

Justice Aharon Barak firmly believes Israel is.639 According to Habermas, the 'public sphere' is a realm of social life in which public opinion can be formed by all citizens. The public sphere mediates between society and state, and although the state is the executor of the political public sphere, it is net itself"the public sphere. Furthermore, the state acts not on behalf of individuals delineated along ethnic or religious lines, but it derives its task of caring

Land (Acquisition for Public Purposes) Ordinance, 1943, Palestine Gazette, Supp., No. 1 at 44 (1943). Holzman-Gazit, Land Expropriation, supra note 5 at 11-15. 639 See for example the articles, Aharon Barak, "The Role of a Supreme Court in a Democracy" (2002) 53 Hastings Law Journal at 1205-1216, Aharon Barak, "The Role of a Judge in a Democracy" (2005) 88:5 Judicature at 199-201. And the book, Aharon Barak, The Judge in a Democracy (Princeton, New Jersey: Princeton University Press, 2006). 184 for the well-being of all citizens primarily from this aspect of the public sphere.640 The logical extension of this argument is that if anyone should define what entails 'public purpose' in land expropriation cases, it should be the public sphere, as it works towards forming public opinion. In a public sphere so realized, people are not merely subjects of public administration,641 or in this case, mere witnesses to expropriations that take place based on Israel's national-strategic housing emphasis for demographic, security, and immigration purposes of the State.642 Holzman-Gazit asserts that the 'public purpose' behind land expropriations is justified given the national-strategic emphasis on housing for the reasons of demography, security, and immigration.643 It is the ideology of land control, coupled with the State's rationalization that land control is crucial to its own survival, that dictates what 'public purpose' for the land is and this justifies its expropriation. It is not left to the public to determine the purpose. Still, Habermas contends that a 'public sphere' does not exist today and that it has become a reality informed by market interests and the State, with little participation of the public.644 Habermas' enunciations on the 'public sphere' demonstrate a hope in the democratic possibilities of the West and in the 'normative rationality' of legal reason. This is distinct from Weber's view on the formal rationality of the

Jiirgen Habermas, "The Public Sphere: An Encyclopedia Article (1964)" (1974) 3 New German Critique (trans. Sara Lennox and Frank Lennox) at 49-50 [Habermas, "The Public Sphere"]. 641 Aid. at 49. 642 The national interest in promoting immigration and the sense of responsibility towards Jewish communities in distress shape Israel's housing policy. Geographic dispersal of Jewish populations in frontier regions and regions with sparse Jewish populations also shapes Israel's housing policy. Holzman- Gazit, Land Expropriation, supra note 5 at 82-83, Ze'ev Drori, "Society Strength as a Base for Military Power: The State of Israel during the Early 1950s" (2006) 12 Israel Affairs 412, Matt Evans, "Defending Territorial Sovereignty Through Civilian Settlement: The Case of Israel's Population Dispersal Policy" (2006) 12 Israel Affairs 578, Oren Yiftachel, "The Internal Frontier: Territorial Control and Ethnic Relations in Israel" in Oren Yiftachel and Avinoam Meir (eds.), Ethnic Frontiers and Peripheries: Landscapes of Development and Inequality in Israel (Boulder, Colorado: Westview Press, 1998) 39. 643 Holzman-Gazit, Land Expropriation, supra note 5 at 85. 44 Habermas, "The Public Sphere", supra note 640 at 49-55. 185 law, which he contends leads to a loss of freedom and meaning as a result of capitalism and state bureaucracies.645 It is to Weber's sociology of law that I turn to now as it is particularly relevant to the Naqab Bedouin reality in the Israeli legal system.

Professor of criminal justice, Dragan Milovanovic elucidates the concept of formal rationality of the law as espoused by Weber. By law's formal rationality, Weber meant that

'formal' was the criteria, principles and logic that were intrinsic to the rules and procedures of the law itself. As a result of formal logic, decision-making takes place completely within the legal framework This can be contrasted with a 'substantive' or a less formal system, where ideological, ethical, moral, emotional or political factors influence decision-making in the law.646 By 'rational', Weber meant following some criteria of decision that is applicable to all similar cases so that similarly situated subjects are dealt with in a similar manner. This is opposed to 'irrational' decision-making where similar subjects are all dealt with differently and the outcome is not predictable.647

The formal rational application of the law in the Israeli context has shown itself in nearly all of the decisions discussed in Chapter 3, including in those supporting civil liberties such as in

Cary Boucock, In the Grip of Freedom: Law and Modernity in Max Weber (Toronto: University of Toronto Press, 2000) at 82. Dragan Milovanovic, "Chapter 2: Max Weber — Law in Economy and Society", A Primer in the Sociology of Law (2d) (New York: Harrow and Heston, 1994) at 41-42 [Milovanovic, "Max Weber"], Max Weber, Economy and Society: An Outline of Interpretive Sociology (vols. 1 and 2) (Eds. Guenther Roth and Claus Wittich) (Los Angeles, CA: University of California Press, 1978) at 656-657 [Weber, Economy and Society]. 647 Milovanovic, "Max Weber", supra note 646 at 41, Weber, Economy and Society, supra note 646 at 655. 186 the 1953 decision of KalHa-amv Minister (fInterior648 and the 2000 decision in the Qz'adtn649 case, as well as in those cases bearing negatively on the land rights of the Naqab Bedouin in the el-Hawtsheleh,650 El- Wakilf1 and El-Sane6"cases.

Where substantive irrational logic showed itself was in the 1952 decision of Dor-a Minister cf

Finance,^ where the Court, although acknowledging that immigrant housing was constructed unlawfully by the authorities since the petitioners were not absentees at the time, decided to treat the authorities' actions forgivingly and refused to invalidate an expropriation order that was tainted by unlawfulness and bad faith.654 The decision to treat forgivingly had no strict origin in the law but was an emotional factor whose inclusion in the decision-making equation led to an unpredictable or irrational outcome. The substantive irrational logic fitted neatly with the State's goal to convert private Arab land into possession of the State for the purposes of housing Jewish immigrants. Therefore, the court used substantive irrational logic to buttress the national-strategic emphasis on housing for the reasons of demography, security, and immigration.655 If the court was acting out of conviction to reintroduce the humanistic in judicial decision making, then it was doing so for the benefit of Jews to the exclusion of Arabs.

Kol Ha 'am Company Ltd. v. Minister of Interior, HC, 73/53, 7 P.D. 871. 649 Qa'adan v. Israel Lands Administration (2000), HCJ 6698/95, P.D. 54 (1) 258. 5 El-Hawasheleh, supra note 431. 65lEl-Wakili, supra note 452. 652 Al-Sane', supra note 458. 653 Dor v. Minister of Finance, HC 180/52, 6 P.D. 908. 654 Holzman-Gazit, Land Expropriation, supra note 5 at 40-41. 655 Ibid, at 85. 187 Furthermore, it is not that formal rational reasoning cannot lead to pro-civil rights decisions that uphold the right to free speech or the right to equality as evidenced in the KolHa'amand

Qt'ackn cases respectively. Legal scholars have asserted that rights litigation reveals a pursuit of formal legal rationality.656 Rather, formal rational reasoning, Weber asserts in his discussion on the relationship between bureaucracy and the law, leads to a dehumanization of the legal text so that love, moral, ethical and personal emotions are replaced with rational, dehumanized and formal logic,657 and obedience to individuals becomes obedience to impersonal rules.658 Therefore, in the el-Hamsheleh659 case, formal rational logic negated the substantive reasoning that would have included informal aspects of the law, such as oral testimony from a Bedouin elder. Formal rational logic also deemed the land state land since legal title could not be produced, although it is well understood that the Bedouin had not registered land to avoid paying taxes and being drafted into the Ottoman army, and that their ownership of such land was recognised by both the British and the Ottomans. Furthermore, the formal rational logic behind the law is an affirmation of itself; law legitimizes itself since it is seen as moral, rational, and formal.660 Therefore, it is not just that the human in the

Bedouin has been occluded as a consequence of the formal rationalization of Israeli law, but

Stephen, M. Feldman, "An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law" (1991) 16 Law and Social Inquiry 205, Allan, C. Hutchinson, Waiting for Coraf: A Critique of Law and Rights (Toronto: Osgoode Hall Law School, 1995), Joel Bakan, "Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27 Osgoode Hall Law Journal 123, all cited in Cary Boucock, In the Grip of Freedom: Law and Modernity in Max Weber (Toronto: University of Toronto Press, 2000) at 104. 657 Max Weber, From Max Weber: Essays in Sociology (H.H. Gerth and C. Wright Mills, eds.) (London: Routledge and Kegan Paul Ltd, 1970) 196-221. 658 Milovanovic, "Max Weber", supra note 646 at 52. 5 El-Hawasheleh, supra note 431. 660 Milovanovic, "Max Weber", supra note 646 at 52, Weber, Economy and Society, supra note 646 at 215. 188 that this is how the Bedouin should be seen because the formal, rational and veridical law says so.

In Chapters 3 and 4 we saw past the claim that the Israeli Supreme Court was a court of civil liberties, as civil liberties were of the selective kind, and the Court deliberately dodged ruling against the State in land expropriation cases and in those that challenged State possession and ownership of land. How does Aharon Barak's constitutional revolution661 fit into the frame? The 'revolution' encompassed the passing of the two basic laws, Basic Law: Human

Dignity and Freedom (1992) and Basic Law: Freedom of Occupation (1992), which opened up possibilities for judicial activism in judicial review of legislation662 and for interpreting the

Basic Laws to include a full set of civil and political rights, including the right to equality.663

However, the revolution was televised, and we saw how it died before it even began.664

661 Aharon Barak, "The Constitutional Revolution: Protected Human Rights" (1992) 1:1 Mishpat Umimshal: Law and Government in Israel (Hebrew) 9. 662 Barak-Erez writes that the Supreme Court interpreted the two basic laws as empowering the courts to carry out judicial review of primary legislation. For precedent to that effect, see United Hamizrahi Bank Ltd. v. MigdalKfar Shitufi, [1995] CA 6821/93, P.D. 49(4) 221. See Daphne Barak-Erez, "Israel: Citizenship and Immigration Law in the Vise of Security, Nationality, and Human rights" (2008) 6:1 International Journal of Constitutional Law at 189 [Barak-Erez, "Citizenship Law"]. 663 Barak-Erez, "Citizenship Law", supra note 662 at 188, Aharon Barak, "Protected Human Rights: Scope and Limitations," (1993) 1 Mishpat Umimshal: Law and Government in Israel (Hebrew) at 253, 261. 564 Reference to the black artist and poet, Gil Scott Heron and his 1971 song "The Revolution will not be Televised". The song is a blunt attack on US society's obsession with what was on the television screen, more than what was going on around them in reality, in particular the institutional racism and police violence blacks face. Heron writes that when the revolution does happen and blacks are liberated, it will not be televised for commercial ratings or mass consumption; instead, the revolution will be live. This thinking is analogous to the Naqab Bedouin situation, because a real constitutional revolution will have the Naqab Bedouin 'in the streets living out brighter days', rather than Israeli scholars and legal actors celebrating the 'revolution' they have created. 189 As the Israeli constitutional law professor Barak-Erez attests, in its judicial review of primary legislation, the Court has invalidated legislation in only a very few cases and usually in those with little bearing on human rights.665 Furthermore, the Basic Law cannot challenge existing legislation and is not retroactive666, which renders it ineffective to challenge land expropriations, the majority of which had already taken place before the institution of the law in 1992. Also, the High Court interpreted the Basic Laws as having to give leeway to the nature of Israel as a Jewish state and its goals.667 The Basic Law: Human Dignity and

Freedom (1992) states in its opening article, 'The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of

Israel as a Jewish and democratic state1 .^

In Israel's self-identification as a 'Jewish and democratic' state, what is occluded is that in legal practice its elements are placed in a hierarchy. It would be more accurate for the phrase to read 'Jewish and then democratic' to evince what is a more precise characterization of the nature of the State and its legal system. That is, it is not democratic to the detriment of being

Jewish; rather, the Jewishness of the State precludes its democratic elements so that it is democratic only within the confines and comfort zones of being an established Jewish entity.

The legal system plays by the same rules. The policy towards the Naqab and the legislation

665 See Bureau oflnv. Managers v. Minister of Finance, HCJ 1715/97 [1997] P.D. 51(4) 367, Tzemach v. Minister of Defence, HCJ 6055/95 [1999] P.D. 53(5) 241, Oron v. Speaker of the Knesset, HCJ 1030/99 [2001] P.D. 53(5) 640, Reg' Comm. of the Gaza Coast v. Knesset, HCJ 1661/05 [2006], P.D. 59(2) 481, Barak-Erez, "Citizenship Law", supra note 662 at 189. Basic Law: Human Dignity and Freedom, 1992, Sefer Ha-Chukkim, number 1454, 90, Art. 10. 667 Justice Shamgar and Justice Barak in United Mizrahi Bank Ltd v. Migdal Cooperative Village, CA 6821/93, P.D. 49 (4) at 221, cited in Abu Hussein and McKay, Access Denied, supra note 51 at 24. 668 Basic Law: Human Dignity and Freedom, 1992, Sefer Ha-Chukkim, number 1454, 90, Art. 1 (emphasis added). 190 to that effect stem from Zionism's focus on land and demography and also from its fear of the Arab, in this case the Arab Bedouin. Certainly, this is how we read, and how the Court read in the KolHa'amcase, the Declaration of Independence, that die values of human dignity and justice are important values in the system, in keeping widi the Jewish and democratic nature of the State. That is, the State and its legal institutions will be democratic and the inherent dignity of human beings will be assured, only within a securely and unfettered Jewish State.669

5.2 Reconceptualising Land Rights de kg*femida

So what should the law be? How does legal transformation occur? The critical legal scholars

Douzinas and Gearey maintain that law is the thread that knots together individual existence and social being. As 'social being' is always a becoming, is always being challenged, negotiated, reconstructed and reborn in the reconstitution of social relations that take political, economic, religious forms, it should not be defined by a law of static rules and regulations, but by a law that is reflective of this dynamic reconstitution of social relations.670

A central thesis of their book is the need for law to move from a restricted to a general jurisprudence. Restricted jurisprudence was born of strict demarcations between pure law

669 See Aharon Barak, "Chapter 16: The Judicial Role and the Problem of Terrorism", The Judge in a Democracy (Princeton, New Jersey: Princeton University Press, 2006) [Barak, "The Problem of Terrorism"]. In this chapter, Barak asserts that as terrorism plagues many countries, the constitution cannot be a prescription for national suicide. The fatality of this work is its fatalism, its war discourse has superseded its human discourse, war is at the forefront and humanity occluded under the blanket of terrorism, and nevertheless the Israeli Supreme Court is doing the right thing in the name of democracy and the rule of law, in which there exist no black holes. Douzinas and Gearey, Critical Jurisprudence, supra note 606 at 11-13. 191 and contexts seen as external to it - political, economic and social contexts; as a result, it has been incapable of incorporating all aspects of social being into the legal system. General jurisprudence, by contrast, locates the legal institution in an 'interzone' which is neither external nor internal to law. Such general jurisprudence reads the legal text as aspects of social being and in doing so is able to locate law's deletions, suppressions, distortions, as well as its tendencies towards oppression and the traumas born of the institution.671

In moving towards a general jurisprudence, law can move closer towards justice. Although

Douzinas and Gearey conceded that justice is not easily defined and is more easily found in the realization of injustice,672 Mari Matsuda has a definition whose simplicity is appealing.

She writes, "[j]ustice means children with full bellies sleeping in warm beds under clean sheets".673 She explicates that justice is access to a livelihood, to control over one's own body and in agreement with Douzinas and Gearey understands how these substantive visions of justice flow naturally from experience with oppression.674

Furthermore, justice is based on the 'other5. Not the other that becomes the inanimate object of Orientalism; an Orientalism that is a fetish for the exotic that facilitates the exercise of power and domination over the inanimate, objectified other.675 But, as Douzinas and Gearey write, the 'other' that is part of the intimacy of the self. As self comes into being, another has

671 Ibid, at 16-17. 672 Ibid, at 27-28. 673 Mari J. Matsuda, "When the First Quail Calls: Multiple Consciousness as Jurisprudential Method" (1992) 14 Women's Rights Law Reporter at 298 [Matsuda, "First Quail Calls"]. 674 Ibid. Sa'id, Orientalism, supra note 233 at 5-6. 192 existed which has created a treasury of meanings, so that I exist only to the extent that others are. This is a world that continuously comes into being, and always in relation to others.676

Justice is then the ethical turn to the other, towards a moral responsibility to the other, for a reconstitution of justice in its current context, to one that exists both within and outside the law.677

The psychoanalysis of the Arab-Israeli peace process offered by clinical psychologist Ofer

Grosbard in his book, Israel an the Couch, expands on this ethical turn to the other. Grosbard, understanding that land is a locus of contest, holds that self-awareness and empathy directed at the other are essential prerequisites to peace in the Arab-Israeli conflict.678

Reconstituting law towards being reflective of the complexity of social being, as it espouses justice that is founded in the ethical turn to the other, could offer enormous promises for the Naqab Bedouin. It could include, as the Israeli geography professor Oren Yiftachel has called for it to include, a historical recognition of traditional land use and ownership, resolving the land ownership issue, recognition of all the unrecognised villages and the adequate provision of services to them, and planning of villages with municipal representatives.679 It would also accommodate the rights of indigenous people as layed out in the UN Declaration on the Rights of Indigenous Peoples to recognition of specific collective

676 Douzinas and Gearey, CriticalJurisprudence, supra note 606 at 16. 677 Ibid, at 27, 35-36. 678 Ofer Grosbard, Israel on the Couch: The Psychology of the Peace Process (Albany: State University of New York Press, 2003). 679 Oren Yiftachel, "The Goldberg Committee and its Consequences", Akhbar al-Naqab (June 17 2008) (Arabic). 193 rights which include the rights to their lands, territories and resources, to maintain their cultures, to recognition of their distinct identities, to self-government and self-determination, to freely define and pursue their economic, social and cultural development, and to be asked for their free, prior and informed consent in decisions that may affect them.680

Such a legal system would be able to answer positively to the recommendations of Human

Rights Watch, where in their 2007 study of land rights in the Naqab, they call on the Israeli government to set up a special commission to investigate issues of land allocation, planning and home demolitions based on the right to adequate housing and the international obligations of the State; to offer full compensation for expropriated land; to establish a special tribunal to adjudicate on land ownership claims that recognizes Bedouin customary land ownership and accepts evidence of possession and use outside of formal legal title; for the State to create a national master plan in consultation with the Bedouin that addresses the community's needs; and to enact legislation that guarantees security of tenure for the Naqab

Bedouin community.681

Law as being founded in the other allows for law to orient itself towards obedience to peoples and not towards blind obedience to impersonal rules, and in doing so would recognise land rights similarly to how the Canadian legal system recognised aboriginal rights in the Delgammkw'case.,682 In it, the Supreme Court held that the scope of aboriginal title is

680 See Section 4.1. 681 HRW, Off the Map, supra note 4 at 109-112. 682 Delgamuukw v. British Columbia, [1997] 3 SCR 1010, [1998] 1 CNLR 14. 194 guided by two principles. First, that aboriginal title encompasses the right to the exclusive use and occupation of the land by an aboriginal group for a broad range of purposes, not limited solely to those customs, practices and traditions of the group at one particular historical moment. Second, title confers the right for the aboriginal community to use their land communally, at their own discretion, so long as that use does not sever the group's link with the land.683

Moving towards a general jurisprudence in international law would also satisfy the call for human rights to be reinterpreted in social movements theory so that the issues of i)

'territorial integrity' as a restriction on indigenous peoples and minority rights, ii) the doctrine of 'emergency' that allows states to abrogate from their human rights responsibilities, and iii) the idea of 'progress' and 'catching up to the West' are rethought and reconstituted to reflect the 'human' in human rights and the centrality of human dignity as a guiding principle for all international law.684

5.3 Law as Congealed Politics

I am inspired by a legal scholar like Mari Matsuda, who in discussing what the law should mean, equates it to morality, that which includes all as human and entitled to the deepest

Brian Slattery, "The Nature of Aboriginal Title", in Owen Lippert (ed.), Beyond the Nass Valley: National Implications of the Supreme Court's Delgamuukw Decision (Vancouver: Fraser Institute, 2000) 11-33, Brian Slattery, "The Metamorphosis of Aboriginal Title" (2006) 85 The Canadian Bar Review 255. 684 See Section 4.3. 195 love and care.685 However, juxtaposing this straightforward analysis to the South African legal scholar Kader Asmal, who writes matter of factly that law is congealed politics that always does political work,686 we are forced to question, in the Israeli context, how much faith we can put in a law that is so strongly directed by the winds of demographic, land, and security concerns?

Former Chief Justice Aharon Barak writes in a personal reflection on how he survived the

Holocaust in Lithuania, that his lesson learnt was not hopelessness in the nature of die human being, but belief in the human spirit. He learnt that equality is among us all, so that protecting dignity, equality and justice is his North Star that guides him in his difficult moments as a Supreme Court judge.687 The personal revelation seems sincere, so why in his

28 years as an Israeli Supreme Court judge has not this humanistic overture translated into the fabric of die legal system? The Court has historically faced questions of its legitimacy by government688 and continues to face such existential questions today.689 As mentioned before, the lack of an entrenched constitution not only signifies an absence of a bill of rights and a guarantee of fundamental human rights protection, but it also points to the limitations

"^ Mari J. Matsuda, "Love, Change" (2005) 17 Yale Journal of Law and Feminism at 185. Asmal Kader, "International Law and Practice: Dealing with the Past in the South African Experience" (2000) 94 American Society of International Law Proceedings at 1. 687 Aharon Barak, "The Role of a Supreme Court in a Democracy" (2002) 53 Hastings Law Journal at 1216. 688 Holzman-Gazit, Land Expropriation, supra note 5 at 35, Pnina Lahav, "The Supreme Court of Israel: Formative Years, 1948-1955," (1990) 11 Studies in Zionism at 45-66, Pnina Lahav, "Rights and Democracy: The Court's Performance" in Ehud Sprinzak and Larry Diamond (eds.), Israeli Democracy Under Stress (Boulder, London: Lynne Rienner Publishers, 1993) at 125-151, Ron Harris, "Israeli Law" in Zvi Zameret and Hana Yablonka (eds.), The First Decade 1948-1953 (Jerusalem: Yad Izhak Ben-Zvi, 1997) (Hebrew) at 243-262. 689 Barak-Erez, "Citizenship Law", supra note 662 at 189. 196 placed on the judiciary vis-a-vis the Knesset, as pro-civil rights rulings depend on fragile legal bases. Without an entrenched constitution, the judiciary is far less able to play an activist role, one that would uphold the principles of equality, dignity and justice when dealing with

Naqab Bedouin land rights, since the Basic Laws upon which such rulings could be based

could easily be amended thereafter. It may also be that the ethnocratic logic that drives State

actions has prevented the incorporation of humanistic values in legal texts, such that would

allow for substantive interpretation of statutes that would factor in the history of

displacement and subjugation affecting the Naqab Bedouin so that justice in the form of

affirmative action, intergenerational justice690 and restitution691 can take place.

Indeed, the political seems to define the direction that the legal system is taking or is forced

to take today. Currently, Justice Minister Daniel Friedmann is intent on restricting the

powers of the Supreme Court and increasing that of the Knesset by proposing to change the

arrangement of the committee to select judges so that politicians will have more say in

judicial appointment than judges; in proposing to authorize the justice minister to transfer

cases between courts; in proposing to allow the Knesset to overcome a Supreme Court

ruling; and in proposing to limit the right to petition the Supreme Court as the High Court

of Justice on matters of administrative action.692 Placing the case of the Bedouin in the larger

Provision of compensation to contemporaries with respect to harms their ancestral victims in the past suffered at the hands of past perpetrators. 691 Restitution is a legal response calculated to take away a gain or enrichment that is considered to be inappropriate. It is a body of law dealing with benefit-based liability or benefit-based recovery. See Hanoch Dagan, "Restitution and Slavery: On Incomplete Commodification, Intergenerational Justice, and Legal Transitions" (2004) 84 Boston University Law Review at 1139. 692 Dan Izenberg, "Friedman Preparing Bill to Restrict High Court's Powers", Ha 'aretz (August 23 2007), Yuval Yoaz and Jonathan Lis, "Former Supreme Court Chief Slams Planned Justice System Reforms", 197 context of non-Jews that fall under the domain of Israeli law, we are shown a more widespread phenomenon of discrimination against Arabs on account of demography and security concerns of the State. The Supreme Court recently ruled unfavorably on two rights cases bearing on Palestinians in Israel and the Occupied Palestinian Territory (OPT) (West

Bank and Gaza) and on Palestinians in Gaza.

In May 2006, the Supreme Court upheld the Nationality and Entry into Israel Law

(Temporary Order) (2003). According to the law, Palestinians from the OPT who are married to Israeli citizens are not entitled to any legal status in Israel, thereby preventing the

Israeli citizens, who are in practice almost all Palestinian citizens of Israel, from realizing their right to a family life inside their own country. On July 1 2008, a 21-8 majority of the

Israeli Knesset approved an extension for the Nationality and Entry into Israel Law

(Temporary Order) for an additional year until July 2009,693

On January 30 2008, Israel's Supreme Court rejected a petition by Palestinian and Israeli human rights organizations to stop Israel from cutting supplies of fuel and electricity to the

Gaza Strip, as part of a governmental decision authorizing punitive measures against the population of Gaza. The petitioners had argued that cutting fuel and electricity supplies constitutes forbidden collective punishment and violates the prohibition in international law

Ha 'aretz (November 7 2007), Ari Shavit, "Ex-Chief Justice: Friedmarm Reforms will make Israel Third World Country", Ha 'aretz (April 8 2008). 593 Adalah - Legal Center for Arab Minority Rights in Israel, "Adalah: Extension to Citizenship Law's Validity is Latest in a Series of Israeli Policies of Racial Separation Based on National Belonging", Adalah Press Release (July 7 2008). 198 against deliberately targeting civilians. The fuel cuts have meant a disruption in the functioning of vital humanitarian services, including hospitals, water wells, and sewage pumps. The Court in reaching its decision relied on oral testimony by a military official, unsubstantiated by affidavit, who claimed that the cuts would not harm humanitarian needs.

Hassan Jabareen, General Director of Adalah, concluded that the Court's decision legitimized the creation of a humanitarian crisis among a civilian population for political purposes, which under international law constitutes a war crime.694

That 'law is politics' was conveyed to me repeatedly during the meetings I held in December

2007 - January 2008 with civil society actors, lawyers and scholars, all engaged in various capacities on the issues pertaining to the Naqab Bedouin or land rights in Israel. In discussing the issue of the Naqab Bedouin asserting historical claims to ownership, possession, or title to land and the role of the courts, Morad al-Sane', a Palestinian Bedouin citizen of Israel, and lawyer with Adalah - Legal Center for Arab Minority Rights in Israel, confessed that "this is a political struggle, not a legal struggle".695 Atwa Abu Freih of the

Regional Council for the Unrecognised Villages (RCUV), in discussing the RCUV's focus on education, community empowerment, and lobbying the government authorities as opposed to legal efforts, explained the organisation's operational priorities by saying that their plan is not to use the courts because the problem is not legal but political, and that "there is no

Adalah - Legal Center for Arab Minority Rights in Israel, "Adalah: The Supreme Court Rejects Petition challenging Fuel and Electricity Cuts to Gaza", Adalah Press Release (January 31 2008). 695 Interview with Morad al-Sane', lawyer at Adalah - Legal Center for Arab Minority Rights in Israel (December 27 2007). Interview on file with author. 199 hope of victory using the courts".696 In interviews with the Israeli legal scholars, Alexandre

Kedar and Ilan Saban, they also saw the inability of the Israeli courts to recognise Bedouin title to land or even historical ownership and possession of it. Kedar recommended that mediation with the government and international pressure are more likely avenues for working towards recognition than is the Israeli Supreme Court.697

5.4 Conclusion

Israeli law is the authoritative, rational, formal progression to the dominant strands of

Zionism that pursued a colonial project towards realising a Jewish national home in

Palestine. That is, it legitimates the occupation of land for the settlement of Jews and subjugates the Naqab Bedouin, as it does the Palestinian Arab community generally. As

Zionism was colonialism in displacing the native population substantiated by their dehumanisation, so Israeli law is colonialism in dispossessing the native population for the benefit of the majority Jewish population through the storytelling techniques it employs in the courts. The administrative bodies and the policy plans substantiate the formal authority of the law, which in the end seems to be dedicated for political purposes that focus on land and demography, and not the essence of what the law is supposed to be, justice.

Interview with Atwa abu Freih, General Manager at the Regional Council for the Unrecognised Villages (RCUV) (December 27 2007). Interview on file with author. Interview with Alexandre (Sandy) Kedar, Law Professor at Haifa University (January 2 2008), Interview with Ilan Saban, Law Professor at Haifa University (December 26 2007). Interviews on file with author. 200 Possibilities within the current colonial system are possibilities that the legal scholar John

Comaroff says exist in colonial contexts, the counterinsurgent and contestatory possibilities in even the most oppressive colonial contexts to challenge the actions of the colonising class.698 But then again, colonial legal systems that allow such challenging and petitioning can also be seen as a further confirmation of law's legitimacy.699 In the same vein, when Aharon

Barak writes that there are no black holes in the law and that all can petition the Supreme

Court sitting as the High Court of Justice,700 he is legitimising a legal system that has inherited a legacy of dispossession, exclusion, and dehumanisation of the subaltern

Palestinian Arab.701 What is the point for a Naqab Bedouin citizen of the state to challenge a home demolition, on land that was traditionally in his community's historical possession, before a legal system that constructed, legislated, amended, executed, erfomed and thereby legitimated the expropriation of his land and the non-recognition of his presence on it?

International law's over-reliance on the State as a principal benefactor of human rights is also problematic, since it is the sovereign state of Israel that has carried the torch of colonialism over from its colonial legacy under the pre-state Zionist movement. Accordingly, international law needs to rethink the centrality of the state's role in promoting and fulfilling human development and human rights, and has to look more to the capabilities among the subalterns in social movements to be promoters of human rights.

698 John L. Comaroff, "Symposium Introduction: Colonialism, Culture, and the Law: A Foreword" (2001) 26 Law and Social Inquiry at 307. See also Engle Merry, "Law and Colonialism", supra note 3 at 891. Shamir, "Landmark Cases", supra note 427. 700 Barak, "The Problem of Terrorism", supra note 669 at 298-299. 701 For a critical account of Barak's rulings in cases pertaining to the Palestinians in the Occupied Palestinian Territories see Nimer Sultany, "The Legacy of Justice Aharon Barak: A Critical Review" (2007) 48 Harvard International Law Journal Online 83. 201 The situation of the Israeli legal system looks grim and the possibilities for the realization of justice regarding Bedouin land rights even grimmer. There seems no official receptiveness of the Israeli legal system to the idea that the Bedouin had their own law system, that land to the Bedouin was traditionally shared or held in common, and that traditional patterns of land use and ownership were consistent with historical practice that could not be suddenly erased at the failure to produce legal title. Even if this thinking were to enter formal legal reasoning, how would it hold up against the 'closed reservoir' that Kedar and Forman talk of, where

93% of the land in Israel is in perpetual Jewish-Israeli possession with no existing possibility for return to Naqab Bedouin hands?702

As discussed earlier, it seems that those rights peripheral and subordinate to the right to land, such as the right to water and the right to health, are more likely to be favorably decided on by the courts and/or the executive. The setting up of agricultural farms or settlements is a policy consideration and may see the light of day, though Abu Hussein and

McKay concede that little has been done in that regard.703 There are also the outstanding land ownership claims, in which 3,220 claims were submitted dealing with 776,856 dunams,704 of the 2 millions dunams actually in historical use by the Naqab Bedouin.

Government compromise offers in the past have been equated with 'aggravated robbery' for

702 Forman and Kedar, "Israel Lands", supra note 168 at 818-823. 703 Abu Hussein and McKay, Access Denied, supra note 51 at 265. 704 Association for Support and Defence of Bedouin Rights in Israel, Master Plan for the Bedouin Population in the Southern District (1990) at 19-20, Abu Hussein and McKay, Access Denied, supra note 51 at 260, footnote 15. 202 the Bedouin705 and since April 2003, the government began to file counter-claims lawsuits against the Bedouin. The possibilities that the hundreds of thousands of dunams that are contested will be settled in a just, fair, transparent and representative manner based on the principles of intergenerational justice and restitution seem unlikely to transpire.

The inefficacy of the Israeli legal system to promote land rights of the Naqab Bedouin lies in its unwillingness to recognise historical Bedouin land use, settlement, possession or ownership. Such a recognition could set a 'dangerous' precedent for the recognition, and possibly return, of refugee land in the amount of between 4.2-5.8 million dunams of land in what became Israel when the State fully nationalized.706 At stake in such recognition lies the

'integrity' of the entire state.

This thesis was prompted by the good work of Adalah - Legal Centre for Arab Minority

Rights in Israel and the Association for Civil Rights in Israel (ACRI), two NGOs that petition the Israeli courts in civil liberties cases. I saw in their actions more efficacy than in the human rights education and publication of reports on human rights violations that most other NGOs working for Palestinians inside Israel are engaged in. Today, I realize that law is a site of struggle, not the site of struggle. Education, lobbying the government, undertaking negotiations with the authorities, empowering the community, international advocacy, Arab-

705 Falah, "Sedentarization", supra note 16 at 76. 706 Ruth Kark, "Planning, Housing and Land Policy 1948-1952: The Formation of Concepts and Governmental Frameworks" in Selwyn Ilan Troen and Noah Lucas (eds.), Israel: the First Decade of Independence (Albany, NY: SUNY Press, 1995) at 461-494, cited in Forman and Kedar, "Israel Lands", supra note 168 at 137. 203 Jewish cooperative initiatives, encouraging volunteerism among the community, and engaging them in various efforts for the general elevation of the community and the belief in a better tomorrow are all part of the solution.

In the meantime, it seems that the best approach to the Israeli legal system, if actors within the Naqab Bedouin community choose to engage with it, is to approach it with a multiple consciousness. As Mari Matsuda writes, sometimes we need to call the legal system racist and also assert that the legal system is above such racism. That is, the community needs to remain aware of the historical abuse of law to sustain existing conditions of domination.

However, they can also use the legal system as a tool of necessity, using the law to fight injustice.707

The system may try to throw the wretched off the earth, but the wretched still have hilly mounds and open skies. And so long as nobody throws a property title on the sky, then we can have it. And you can have it too. As justice remains that elusive concept we try to realise through our struggle with the law, so then we continue working muscles to pull ourselves up that mountain. In the open skies' whisperings to our collective consciousness, we are reminded of land's truth; that it is ours to share, to respect, and live off.

Matsuda, "First Quail Calls", supra note 673. 204 Bibliography

LEGISLATION- ISRAELI

Absentees'Property Law, 1950, LSI, number 37 (March 20,1950).

Bask Law HurmnDignity andFreedom, 1992, Sefer Ha-Chukkim number 1454, 90.

Bask Law Israel Lands, 1960, LSI., number 312 (July 29,1960).

Crime of Genocide (Prezention andPunishment) Law, 1950, Sefer Ha- Chukkim number 42,137 (7th April 1950).

Development Authority (TransferofProperty) Law, 1950, L.S.I., number 57 (August 9,1950).

FallowLands Regulations, 1948, Official Gazette, number 27, supplement 2 (October 15 1948).

Israel Lands Law, 1960, L.S.I., number 312 (July 29,1960).

Israd Lands Administration Law, 1960, L.S.I., number 312 Quly29,1960).

Jewish Agency (Status) Law, 1952, L.S.I. Vol. 7 (Jerusalem: Government Printer).

The Land Rights Settlement Ordinance, 1969, 23 L.S.I. 283.

Land(AcquisitionforPublkPurposes) Ordinance, 1943, Palestine Gazette, Supp., No. 1 at 44 (1943).

LandAojuhition(Validatim of Aas and Compensation) Law, 1953, L.S.I., number 122 (March 20, 1953).

Law for the Acquisition ofLandin the Negev(Peace Treaty wth Egypt), 1980, L.S.I., Vol. 34 190.

TheMawit Land Ordinance, 1921, 38 Official Gazette 5 (March 1 1921).

The Planning andBuilding Law, 1965, L.S.I., vol. 19 330.

Population Registry Law, 1965, L.S.I. Vol. 19 (Jerusalem, Israel: Government Printer).

The State Property Law, 1951, L.S.I., number 68 (February 15,1951).

205 LEGISLATION- OTHER

Commtixnoomerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72ILO Official Bull. 59; 28 ILM 1382 (1989).

International Cozenant an Cvul andPoliticalRights (ICCPR), GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); 999 UNTS 171; 6 ILM 368 (1967).

International Cozenant on Economic, Social and Cultural Rights (ICESCR), GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); 993 UNTS 3; 6 ILM 368 (1967).

International Contention on the Elimination of A11 Forms of Racial Discrimination (ICERD), 660 UNTS 195; G.A. res. 2106 (XX), Annex, 20 UN. GAOR Supp. (No. 14) at 47, UN. Doc. A/6014 (1966).

Convention onthe Rights of the Child (CRC), GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, UN. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989).

Contention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1984); 1465 UNTS 85.

Uniiersal Dedaration of Human Rights (UDHR), adopted December 10,1948, G.A. Res. 217A (III), UN Doc. A/810 at 71 (1948).

Vienna Contention on the Lawcf Treaties (1969), UN Doc. A/Conf .39/27; 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969).

JURISPRUDENCE

A bu Kaf, v Minister of the Interior, HCJ 6672/00.

AbuSabHa v The Ministry of Education (2007), HCJ 2848/05.

Abu-Solbv Israel Lands Administration, [1986] CA 518/86, P.D. 42(4) 518.

Adalah -u Ministry cfHealth, HCJ 7115/97.

Agbaria v Minister of Education, HC 3491/90, P.D. 45(1) (1990) 221-4. Anuria v Minister of Education, HC. 3954/91, P.D. 45(5) (1991) 472-8.

Al-Couri v Chief of Staff, HC 95/49,4 P.D. 34.

Al-Sane'v. General Attorney, HCJ 2678/91, P.D. 46(3) 709.

The Arabk Ccmndl for Education v Minister of Education, HC. 4251/94 (1995).

Autanv Israel Lands Authority, HCJ 528/88, P.D. 43 (4) 297.

AmimLtd v Minister of Finance, FH 29/69,24(2) P.D. 397.

Bureau oflnu Managers v Minister of Finance, HCJ 1715/97 [1997] P.D. 51(4) 367.

Burkanv Mister of Finance, HC. 114/79, P.D. 32(2) (1979) 800-08.

Delgamuukwv British Columbia, [1997] 3 SCR 1010, [1998] 1 CNLR14.

Dorv Minister cf Finance, HC 180/52, 6 P.D. 908.

Colderv. A ttorney General of British Columbia (1973) 34 DLR (3d) 145.

The Committeefor Ikrit Refugees v Israeli Government, HCJ 141/81, P.D. 36 (1) 129, Palestine Yearbook of International Law, Vol. II (1985) 129.

Daudv Ministry of Defence, HCJ 64/51, P.D. 5,1117, Palestine Yearbook of International Law, II (1985) 121.

El-Hawisheleh v State of Israel, [1974] CA 218/74, P.D. 38(3) 141.

El-Sane'v District Committee for the Southern District, CA 193/87, D.C.B.S. 49 (2) 397.

El-Wakiliv State of Israel, HCJ 84/83, P.D. 37(4) 173.

Head of the Committee of A rab Mayors v Minister of the Interior, HC 9472/00.

Karsik v State of Israel, HC 2390/96, 55(2) P.D. 625.

Kd Ha'am Company Ltd v Minister of Interior, HC, 73/53,7 P.D. 871.

Laor xi Film and Plays Censorship Board, HC 14/86, 41(1) P.D. 421.

LocalPknrdngandBuildingCommhsionlQryatAtav Holzman, CA5546/97, 55(4) P.D. 629. LocalPlanmngandBuildingComnissionforTdAuv,a KerenMordecai, Criminal Cases, Tel Aviv 4/87, Local Judgements 5750(b) 514.

Mabo 12 State (f Queensland, (1992) 175 CLR1 (HCA).

NatafCooperatiw Settlement Organization v State cf Israel, P.D. 38(2).

Oronv Speaker (f the Knesset, HCJ 1030/99 [2001] P.D. 53(5) 640.

Poraz v Municipality of Tel Ativjaffa, HC 953/87,42(2) P.D. 309.

Qa'adan v. IsraelLands Administration (2000), HCJ 6698/95, P.D. 54 (1) 258.

Reg' Comm of the Gaza Coast v Knesset, HCJ 1661/05 [2006], P.D. 59(2) 481.

Sbeitv Gozemment of Israel, HCJ 840/97, P.D. 57(4) 803.

Sohrntzeru The Chief~Military Censor, HC 680/88,, 42(4) P.D. 617.

ShakcMxi Minister of Religious Affairs, HC 153/87, 42(2) P.D. 221.

Tzermch v Minister of Defence, HCJ 6055/95 [1999] P.D. 53(5) 241.

UnitedMizrahiBank Ltdv Migdal Cooperative Village, CA 6821/93, P.D. 49 (4) 221.

Universal City Studios Inc v Films and Plays Censorship Board, HC 806/88,43(2) P.D. 22.

Watadv Ministry of Treasury, HC. 200/83, P.D. 38(3) (1983) 113-25.

SECONDARY MATERIAL: MONOGRAPHS

Abu Hussein, Hussein and McKay, Fiona, Access Denied: Palestinian LandRights in Israel (New York Zed Books, 2003).

Abu Khusa, Ahmad, Beeral-Saba''iwlhayahal-Badamya (Amman: Matabi' al-Mu'assasa al- Sahafiya al-Urdunniya, 1976) at 7-75 (Arabic).

Abu Khusa, Ahmad, Mausisfat Qabzyil Beer al-Saba'mi- Ashairiha al-Raiysiah (Amman: Sherkat al-Sharq al-Awsat le-Teba'a, 1994) (Arabic).

Abu Rabi'a, 'Aref, The Negev Bedouin and Lkestock Rearing: Social, Economic and Political Aspects (Oxford: Berg, 1994). Abu-Rabi'a, 'Aref, A Bedouin Century: Education andDeidopment among the Negev Tribes in the 20th century (New York: Berghahn Books, 2001).

Adalah - Legal Center for Arab Minority Rights in Israel, Report to the United Nations Economic and Sxid Council (ECOSOC),\JN Doc. E/CN.4/2006/NGO/1241 (March 2006).

Adam, Heribert, Modernizing Racial Domination (Berkeley: University of California Press, 1972).

al-'Aref, 'Aref, TarikhBeeral-Saba'im Qzbai'lih Qerusalem: n.p., 1934) (Arabic).

al-Dabbagh, Mustafa Murad, Biladuna Filastin (Our Country, Palestine) (Beirut: Dar al-Tali'a, 1991) (Arabic).

al-Ghury, Emile, Filastin 'abra Sittina 'A nun (Palestine Through Sixty Years) (Beirut: Dar al- Nahar li-Nashr, 1972).

Almi, Orli, The Ramifications ofHouse Demolitions in Israel on the Mental Health cf Children (Tel Aviv: Physicians for Human Rights Israel, 2006).

Amad, Adnan (ed.), Israeli League for Human and Ciul Rights- TheShahak Papers (Beirut: Near East Ecumenical Bureau for Information and Interpretation, no date, but after 1972).

Anglo-American Committee of Inquiry,^! Suney of Palestine (Palestine: Government Printer, 1946).

Arab Association for Human Rights (HRA), By A11 Means Possible: Destruction by the State cf Crops of Bedouin Citizens in the Naqab (Negerf by A erial Spraying idth Chemicals (2004).

Arab Association for Human Rights (HRA), On the Margins 2006: Annual Reziew of Human Rights Violations cfthe Arab Palestinian Minority in Israel 2006 (2007), online: http://www.arabhra.or^/HraAdrnin/UserImages/Files/YearlyReport2006FullVersi onHighQualityE nglish.pdf.

Association for Support and Defence of Bedouin Rights in Israel, Master Plan for the Bedouin Population in the Southern District (1990).

Association for Support and Defence of Bedouin Rights in Israel, Bedouins in the Negev A tdtudes and Aspirations (Musmus, Israel: DUMA Institute, 1992).

Avishai, Bernard, The Tragedy of Zionism: Revolution and Democracy in the Land of Israel (New York Farrar Straus Giroux, 1985). Barak, Aharon, Interpretation in Lam Vol. II, Statutory Interpretation (Jerusalem: Aharon Nevo Publishing Limited, 1993) (Hebrew).

Barak, Aharon, The Judge in a Democracy (Princeton, New Jersey: Princeton University Press, 2006).

Barbour, Neville, NisiDoninus (Beirut: Institute for Palestine Studies, 1959).

Bar-Zvi, Sason, Bedouin tell about Beersheba (Beersheba: Ben Gurion University of the Negev, Tuviaho Archives, Publication no. 13:1-33,1977) (Hebrew).

Be'eri, Eliezer, TheBeginning cftheIsraeli-Arab Conflict, 1882-1911 (Haifa: Sifriyat Po'alim/Haifa University Press, 1985) (Hebrew).

Ben-Gurion, David, TheNegevis Still Waiting (Tel Aviv: The Labour Party Archive, 1954) (Hebrew).

Biger, Gideon, A Crowi Colony or a National HomzThe Impact of British Rule on Palestine 1917- 1930, A Historical- Geographical A ccount (Moshaiat Keter o Ba 'iit L eurrk Hash 'pa 'at Ha'shiltonHa'britiAlEretz Yisrael 1917-1930 Bchina Geographit-Historit) (Jerusalem: Yad Ben Avi, 1983) (Hebrew).

Boucock, Gary, In the Grip of Freedom Law and Modernity in Max Weber (Toronto: University of Toronto Press, 2000).

Centre on Housing Rights and Evictions, Submission to the Goldberg Committee regarding xiolations of the human right to water and sanitation in the unrecognized ullages of the Negez/Naqab (February 2008).

Cohen, Hillel, The Present Absentees: The Palestinian Refugees in Israel since 1948 (Jerusalem: Institute for Israeli Arab Studies, 2000) (Hebrew).

Danin, Ezra and Shimoni, Ya'acov, Documents and Portraits from the Arab Gangs A rchizes, in the Arab Remit in Palestine (1936-39) (Jerusalem: The Magnes Press, The Hebrew University, 1981) (Hebrew).

Diqs, Isaak,^4 Bedouin Boyhood (New York: Praeger, 1969).

Domke, Martin, Trading with the Enemy in World War 2 (Central Books, New York, 1943).

Douchan, Moses, Deeney Karka'ot be-Medeenat Yeesra'el (The Land Laws in the State of Israel) (Jerusalem, 1952).

210 Douzinas, Costas and Gearey, Adam, Critical Jurisprudence: The Political Philosophy ofJustice (Oxford: Hart Publishing, 2005).

Dukhan, Moshe, LandLaus in the Land of Israel (Jerusalem: Dfus HaPoalim, 1925) (Hebrew).

Edelman, Martin, Courts, Politics, and Culture in Israel (Charlottesville: University Press of Virginia, 1994).

Efrat, A., Tales from die Double Sods (Jerusalem: Ministry of Defense, 1992) (Hebrew).

Falah, Ghazi, The Processes and Pattern qfSedentarization of the Galilee Bedouin, 1880-1982, unpublished PhD thesis (University of Durham, Department of Geography, 1982).

Falah, Ghazi, TheForgotten Palestinians, Negev Arabs 1906-1986 (Ibdat Center for Arab Heritage: Jerusalem, 1989).

Fanon, Frantz, The Wretched cf the Earth (New York: Grove Press, 1963).

Finkelstein, Norman, The Holocaust Industry. Reflections on the Exploitation qfjeuish Suffering (London, New York: Verso, 2003).

Foucault, Michel, Disdpline and Punish (trans. A. Sheridan) (New York Pantheon, 1977).

Furedi, Frank, Colonial Wars and the Politics of Third WorldNationalism (London, New York: LB. Tauris, 1994).

Gavish, Dov, Karka w-Mapah: me-HesderKarka'otle-MapatErets Yeesra'el 1920-1948 (Landand Map: FromLand Settlement to Maps of Eretz-Israd 1920-1948) (Jerusalem: Yad Izhak Ben-Zvi, 1992) (Hebrew).

Gazit Report, Report of the Inter-Ministerial Committee to Examine Illegal Construction in the State of Israel (March 2000) (Hebrew).

Glenn, Patrick, H., Legal Traditions of the World Sustainable Diwrsity in Law, 3d. ed. (Oxford, Toronto: Oxford University Press, 2007).

Goadby, Frederic M. and Doukhan, Moses J., The Land Law of Palestine (Tel Aviv: Shoshany's Printing Co., 1935).

Granott, Abraham, The Land Systemin Palestine (London: Eyre & Spottiswoode, 1952).

Grosbard, Ofer, Israel on the Couch: The Psychology of the Peace Process (Albany State University of New York Press, 2003).

211 Ha'am, Ahad, "The truth from Eretz-Israel", in Writing of Ahad Ha'am (Tel Aviv, 1961) (Hebrew).

Hadawi, Sami, Palestine: Loss of a Heritage (San Antonio: Naylor, 1963).

Higgins, Rosalyn, "The Middle East vol. I", United Nations Peace Keeping 1946-1967, Documents and Commentary (London: Oxford University Press, 1969).

The High Foliowup Committee for the Arabs in Israel and The National Committee for the Heads of the Arab Local Authorities in Israel, The Future Vision of the Palestinian Arabs in Israel (2006)

Holzman-Gazit, Yifat, Land Expropriation in Israel: Law, Culture, and Society (Hampshire, England: Ashgate Publishing Limited, 2007).

Hooker, MBarry, L egal Pluralism A n Introduction to Colonial and Neo- Colonial Law (Oxford: Clarendon Press, 1975).

Human Rights Watch, Cffthe Map: Land and Housing Rights Violations inlsrael's Unrecognized Bedouin Villages (2008).

Human Rights Watch, Second Class: Discrimination against Palestinian A rah Children in Israel's Schools (2001).

Huntington, Samuel P., The Clash of evaluations and the Rermking of World Order (New York: Simon & Schuster, 1996).

Hutchinson, Allan, C, Waitingfor Coraf: A Critique of Law•andRights (Toronto: Osgoode Hall Law School, 1995).

Israeli Defence Forces (IDF), The NegevBedouin (Tel Aviv: Israeli Defence Forces Publisher, 1954).

Israel Lands Administration (ILA), Report on the Operations of the Israel Lands Administrationfor the Year 1964 -5 (Jerusalem: Israel Lands Administration, 1965) (Hebrew).

Jiryis, Sabri, The Arabs in Israel (Beirut: The Institute for Palestine Studies, 1968).

Jones, Christina, The Untempered Wind (London: Longmans, 1975).

Joseph, Bernard, British Rule in Palestine (Washington: Public Affairs Press, 1948).

Kark, Ruth, The History of Pioneer Settlement in the Negev (Tel Aviv: Hakibbutz Hameuhad, 1974) (Hebrew). 212 Kedar, Alexandre (Sandy), "The Legal Transformation of Ethnic Geography: Israeli Law and the Palestinian Landholder 1948-1967," (2001) 33 New York University Journal of International Law and Politics 923.

Kellerman, Aharon, Society and Settlement - The Jewish Land of Israel in the Twentieth Century (Albany: State University of New York Press, 1993).

Khalidi, Rashid, Palestinian Identity: The Construction of Modern National Consciousness (New York- Columbia University Press, 1997).

Kimmerling, Baruch, ThelnwitionandDedineoflsraeliness: State, Society and the Military (Berkeley University of California Press, 2001).

Kretzmer, David, The Legal Status of the Arabs in Israel (Boulder, Colorado: Westview Press, 1990).

Kymlicka, Will, Multicultural Odysseys: Navigating the New International Politics ofDkersity (Oxford, New York: Oxford University Press, 2007).

Lahav, Pnina, Judgment in Jerusalem Chief Justice Simon Agranat and the Zionist Century (Berkeley University of California Press, 1997).

Laqueur, Walter, A History of Zionism (New York Holt, Rienehart & Winston, 1972).

Lecke, Scott, From Housing Needs to Housing Rights: An Analysis of the Right to Adequate Housing under International Human Rights Law (London: International Institute for Environment and Development, 1992).

Lehn, Walter and Davis, Uri, The Jewish National Fund(Kegan Paul, London, 1988).

Lerner, Natan, "Israel's International Obligations Concerning Minorities and Discrimination" in International Center for Peace in the Middle East, Relations between Ethnic Majority andMinority (Tel Aviv, 1987).

Lithwick, Harvey, A n Urban Development Strategy for the Negev's Bedouin Community (Be'er Sheva, Israel: The Center for Bedouin Studies and Development, 2000).

Lucas, Noah, The Modern History of Israel (London: Weidenfeld &Nicolson, 1974).

Lustick, Ian, A rabs in the Jewish State: Israel's control of a national minority (Austin: University of Texas Press, 1980).

Maddrell, Penny, The Bedouin of the Negev (London: Minority Rights Group, 1990). 213 Magdoff, Harry, Imperialism: From the Colonial Age to the Present (New York: Monthly Review, 1978).

Markovitz Commission, Report on Illegal Bidding in the A rab Sector (1986).

Marks, Susan and Clapham, Andrew, International Human Rights Lexicon (New York: Oxford University Press, 2005).

Marx, Emanuel, Bedouin of the Negev (New York Praeger, 1967).

Marx, Emanuel and Sela, Moshe "Situation of the Negev's Bedouin", Appendix No. 1. Ben- Mayer's Team for Evacuation andResettlement of the Bedouin (Tel Aviv: TAHAL, 1980).

Mautner, Menachem, The Dedine of Formalism and the Rise of Values in Israeli Law (Tel Aviv: Ma'agalayDa'at Publishing House, 1993) (Hebrew).

McCarthy, Justin, The Population of Palestine: Population History and Statistics of the Late Ottoman Period andthe Mandate (New York: Columbia University Press, 1990).

Memmi, Albert, The Colonizer and the Colonized (Boston, Mass: Beacon Press, 1967).

Morris, Benny, Righteous Victims: A History of die Zionist-Arab Conflict, 1881-1999 (New York Knopf, 1999).

Muhsam, Helmut Victor, Bedouin of the Negeu Eight Demographic Studies (Jerusalem: Jerusalem Academic Press, 1966).

Naipaul, Vidiadhar Surajprasad, India: A Wounded Civilization (New York Vintage, 1977).

Naipaul, Vidiadhar Surajprasad, An Area of Darkness (New York Vintage, 1981).

The National Insurance Institute (Nil), Report on Poverty and Inequality in Income (2005).

Negev Coexistence Forum for Civil Equality, "The Arab-Bedouins of the Naqab-Negev Desert in Israel" (2006).

Nowak, Manfred, UN Covenant on Ciiil and Political Rights: CCPR Commentary (Strasbourg, Va., Arlington, Va.: N.P. Engel, 1993).

The Ottoman Land Code (trans. F. Ongley, ed. Horace E. Miller) (London: William Clowes and Sons Limited, 1892).

214 Palestine Exploration Fund, Twenty-one Years' Work in the Holy Land: (A Recordand Summary) June 22,1865 -June 22,1886 (London: Alexander P. Watt, 1889).

Palmer, Edward Henry, The Desert of the Exodus: Journeys on Foot in doe Wilderness of the Forty Years' Wanderings (New York: Harper and Brothers, 1872).

Pappe, Ilan, The Ethnic Cleansing of Palestine (Oxford: Oneworld, 2006).

Physicians for Human Rights (PHR), No Man's Land Health in the Unrecognised Villages of the Negev(2003).

Pinsker, Leon, A uto-Emancipation: A Warning to his Kinsfolk by a Russian Jew (published anonymously, 1882).

Porat, Hanina, The Strategic, Political and'Economic Status oftheNegevas Viewed by the British Government and the British Mandate, Masters Thesis (Be'er Sheva: Department of Middle East Studies, Ben-Gurion University of the Negev, 1985) (Hebrew).

Rajagopal, Balakrishnan, International LawfromBelow Development, Social Movements and Third World Resistance (UK: Cambridge University Press, 2003).

Reuveny, Jacob, The Administration ofPalestine under the British Mandate 1920-1948: An Institutional Analysis (Ramat Gan: Bar Ilan University, 1993) (Hebrew).

Risse, Thomas, Ropp, Stephen C. and Sikkink, Kathryn (eds.), The Power of Human Rights: International Norms and Domestic Change (UK: Cambridge University Press, 1999).

Rodinson, Maxime, Israel, A Colonial Settler State? (New York- Pathfinder Press, 1973).

Rodinson, Maxime, Israel: A Colonial Settler State? (New York Monad Press, 1973).

Rousseau, Jean-Jacques, "Preface" in Jean-Jacques Rousseau, A Discourse on the Origin of Inequality, (trans. P. Coleman) (New York Oxford University Press, 1994).

Roy, Tirthankar, The Economic History of India, 1857-1947 (Delhi: Oxford University Press, 2000).

Royal Institute of International Affairs, Great Britain and Palestine, 1915-1945 (Westport, Connecticut: Hyperion Press, 1976).

Sa'id, Edward, Orientalism (New York Vintage Books, 1979).

Sa'id, Edward, Culture and Imperialism (NewYork Vintage Books, 1994). Samuel, Edwin, British Traditions in the Administration of Israel, Anglo-Israel Association (London: Vallentine Mitchell, 1957).

Sayigh, Rosemary, The Palestinian Experience Viewed as Socialisation, unpublished MA thesis, (Beirut: American University of Beirut, 1976).

Scholch, Alexander, Palestine in Transformation 1856-1882: Studies inSocial, Economic and Political Development (Washington, D.C.: Institute for Palestine Studies, 1993).

Shamir, Ronen, The Colonies of Law Colonialism, ZionismandLawin Early Mandate Palestine (Cambridge: Cambridge University Press, 2000).

Shapira, H. and Hellerman, J., The Bedouin in the Negeu A Social Survey (Herziliya, Israel: Sampling, Consultation and Research Firm, 1998).

Shimoni, Yacob, The Arabs of Palestine (Tel Aviv: 'Am Oved, 1947).

Sikkuy, The Sikkuy Report 2006: The Equality Index cfjewsh and Arab Citizens in Israel (2007).

Simpson, A. W. Brian, Hurrun nghts and the end cf empire: Britain and the genesis of the European Convention (Toronto : Oxford University Press, 2001).

Srinivasan, Roopa, Tiwari, Manish and Silas, Sandeep (eds.), Our Indian Railwzy: Themes in India's Raihmy History (Foundation Books, 2006).

Swirski, Shlomo and Hasson, Yael, Invisible Citizens: Israel Government Policy Toward the Negev Bedouin (Beer Sheva, Israel: HaMachpil Ltd., 2006).

Taylor, Alan K, The Zionist Mind (Beirut: Institute for Palestine Studies, 1974).

Teveth, Shabtai, Ben Guriav The Burning Ground 1886-1948 (Boston: Houghton Miflin Company, 1987).

Thornberry, Patrick, The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious andLinguisticMinorities: Background Analysis andObsermtions (London: Minority Rights Group, 1993).

Tuten, Eric Engel, "Between Capital and Land: The Jewish National Fund's Finances and Zionist National Land Purchase Priorities in Mandatory Palestine", PhD Thesis (Utah: Department of History: The University of Utah, December 2000).

Vital, David, The Origins cf Zionism (Oxford: Clarendon Press, 1975).

Waines, David, The Unholy War (Montreal: Chateau Books, 1971). 216 Warriner, Doreen, LandandPoierty in the Middle East (London: Royal Institute of International Affairs, 1948).

Weber, Max, From Max Weber: Essays in Sociology (H.H Gerth and C. Wright Mills, eds.) (London: Routledge and Kegan Paul Ltd, 1970).

Weber, Max, Economy and Society: An Oudine ofInterpretive Sociology (vols. 1 and 2) (Eds. GuentherRoth and Claus Wittich) (Los Angeles, CA: University of California Press, 1978).

Weisman, Joshua and Keenyan, Deeney, Lawcf Property Qerusalem: Hebrew University of Jerusalem, 1993).

Weitz, Yosef, "Agricultural Prospects in the Negeb", Pamphlet Service No. 2 (London: Zionist Federation of Great Britain and Ireland, n.d. (c. 1945)), Central Zionist Archives (Jerusalem, Israel), card catalogue No. 35.370, 3-4.

Weitz, Yosef, My Path to Settling the Country Qerusalem: Nir, 1960) (Hebrew).

Weulerrse, Jacques, Paysans de Syrie et du Proohe-Orient (Paris: Gallimard, 1946).

White, James Boyd, Justice as Translation (Chicago: University of Chicago Press, 1990).

Ye'or, Bat, TheDhimni, Jem and Christians under Islam (Fairleigh Dickinson University Press/ Associated University Presses, 1985).

Yiftachel, Oren, Planning a Mixed Region inlsrael (Aldershot, UK: Avebury, 1992).

Yiftachel, Oren, Planning as Control: Policy and Resistance in a Deeply Divided Society (Exeter: Pergamon, 1995).

Yiftachel, Oren, Land, Planning and Inequality: Space Division between Jems and Arabs inlsrael (Tel Aviv: Adva Center, 2000) (Hebrew).

Yiftachel, Oren, Ethnocracy. land and identity politics in Israel/Palestine (Philadelphia: University of Pennsylvania Press, 2006).

Zamir, Itzhak, AchinistratiwPower, vol.1 (Jerusalem: Nebo Publishing, 1996).

Zandberg, Haim, Hesder Zekhooyot be-Mekarkeen be-Erets- Yeesra'el le-be-Medeenat Yeesra'el (Land Title Settlement in Eretz-Israel and in the State cf Israel) (1999) Unpublished PhD Dissertation (Jerusalem: Hebrew University of Jerusalem) (Hebrew).

217 Zureik, Elia T., The Palestinians in Israel: A study in internal cdomalism (London: Routledge & Kegan Paul,1979).

SECONDARY MATERIAL: ARTICLES

Abu Rabi'a, 'Aref, "The Bedouin Refugees in the Negev" (1994) 14:6 Refuge 15.

Abu-Saad, Ismael, "Education as a Tool for Control vs. Development among Indigenous Peoples: The Case of Bedouin Arabs in Israel" (2001) 2:2 Hagar: International Social Science Review 241. Adalah - Legal Center for Arab Minority Rights in Israel, "Adalah: Extension to Citizenship Law's Validity is Latest in a Series of Israeli Policies of Racial Separation Based on National Belonging", A dalah Press Release (July 7 2008).

Adalah - Legal Center for Arab Minority Rights in Israel, "Adalah Petitions Supreme Court to Cancel Wine Path Plan for Individual Settlements in the Naqab", 24 Adalah Newsletter (April 2006).

Adalah - Legal Center for Arab Minority Rights in Israel, "Adalah Submits Objection against Master Plan for Metropolitan Beer el-Sabe as it Violates the Rights of Arab Residents of the Naqab to Dignity, Equality and Suitable Housing", 42 Adalah Newletter (November 2007).

Adalah - Legal Center for Arab Minority Rights in Israel, "Adalah: The Supreme Court Rejects Petition challenging Fuel and Electricity Cuts to Gaza", Adalah Press Release Qanuary31 2008).

Adalah - Legal Center for Arab Minority Rights in Israel, Legal Advocacy- Supreme Court Petitions: Land Rights, online: http://www.adalah.Org/eng/legaladvocacyland.php#6672.

Adalah - The Legal Center for Arab Minority Rights in Israel, "International Advocacy", online: http://adalah.org/eng/intladvocacy2007.php.

Ahronson, Ran, "Settlement in Eretz-Israel - A Colonialist Enterprise?" in Pinchas Ginosar and Avi Bareli (eds.) Zionism A Contemporary Debate (Tsionut Pulmus Ben Zrmnenu) (Beer Sheva: Ben Gurion University, 1996) (Hebrew). al-Sane', Morad, Land Dispute beMeen Bedouins and the State of Israel: Problems and Ideas for a Solution (2006), Unpublished paper.

218 al-Sane', Roaida, Al-Asad, Khuloud, "The Right to Housing" in Ma'an: The Forum of Bedouin Women, The Arab Woman in the Ne$gu Realities and Challenges (Haifa: Roaa Translations and Publishing, 2005) 17-26.

Alston, Philip and Scott, Craig, "Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney's Legacy and Grootboom's Promise" (2000) 16:2 South African Journal of Human Rights 206.

Alterman, Rachelle, and Hill, Morris, "Land Use Planning in Israel", in Nicholas N. Patricios (ed.), International Handbook on Land Use Planning (Westport, CT: Greenwood Press, 1986).

Aukerman, Miriam J., "Definitions and Justifications: Minority and Indigenous Rights in a Central/Eastern European Context" (2000) 22:1 Human Rights Quarterly 1011.

Avishai, Bernard, "Zionist 'Colonialism': Myth and Dilemma", Dissent (1975).

Bachor, D., "The Government Approved the Establishment of 14 New Community Settlements", Ynet, Quly 21,2002) (Hebrew).

Bakan, Joel, "Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought" (1989) 27 Osgoode Hall Law Journal 123.

Barak, Aharon, "The Constitutional Revolution: Protected Human Rights" (1992) 1:1 Mishpat Umimshal: Law and Government in Israel 9.

Barak, Aharon, "Protected Human Rights: Scope and Limitations," (1993) 1 Mshpat Umimshal: Law and Government in Israel (Hebrew) 253.

Barak, Aharon, "The Role of a Supreme Court in a Democracy" (2002) 53 Hastings Law Journal 1205.

Barak, Aharon, "The Role of a Judge in a Democracy" (2005) 88:5 Judicature 199.

Barak-Erez, Daphne, "From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective" (1994-1995) 26 Columbia Human Rights Law Review 309.

Bar-Zvi, Sason, "The First Settlers in Revrvim and the Bedouin" (1971) 2 Notes on the Bedouin (Hebrew).

Baxi, Upendra, "Voice of Suffering and the Inclusion of Human Rights", (1998) 8 Transnational Law and Contemporary Problems 125.

219 Ben-David, Yosef, "The Negev Bedouins: Land Conflict and Proposal for Solution" (1997), 61 Karka 45 (Hebrew).

Benhabib, Seyla, "Critical Theory and Postmodernism: On the Interplay of Ethics, Aesthetics, and Utopia in Critical Theory," (1990) 11 Cardozo Law Review 1435.

Ben-Israel, Hedva, "Irredentism: Nationalism Reexamined" in Naomi Chazan (ed.), Irr€dentism and International Pditks (Boulder: Lynne Rienner Publishers, 1991).

Benvenisti, Eyal, "The Influence of International Human Rights Law on the Israeli Legal System: Present and Future" (1994) 28 Israel Law Review 136.

Brysk, Alison, "From Above and Below: Social Movements, the International System, and Human Rights in Argentina" (1993) 26:3 Comparative Political Studies 259.

Checker, Jeffrey T., "International Norms and Domestic Politics: Bridging the Rationalist- Constructivist Divide" (1997) 3:4 European Journal of International Relations 473. Chimni, B.S., "Third World Approaches to International Law: A Manifesto" in Anthony Anghie, Bhupinder Chimni, Karin Mickelson, Obiora Okafor (eds.) The Third World and International Order Law, Politics and Globalization (Martinus Nijhoff Publishers: Leiden, Boston, 2003).

Chimni, B. S., "An Outline of a Marxist Course on Public International Law" (2004) 17 Leiden Journal of International Law 1.

Cohen, Michael J. "The British White Paper on Palestine, May 1939. Part II: The Testing of a Policy, 1942-1945" (Sep. 1976) 19:3 The Historical Journal 727.

"Conference for Land Owners Supporting the Establishment of a Popular Committee headed by Retired Judge Abd il-Rahman Al-Zoa'bi", Akhbar al-Naqab (March 25 2008) (Arabic).

Cortell, Andrew P., and Davis, James W. Jr., "How do International Institutions Matter? The Domestic Impact of International Rules and Norms" (1996) 40 International Studies Quarterly 451.

Cover, Robert, "Foreward: Nomos and Narrative" (1983) 97 Harvard Law Review 4.

Cover, Robert, "Violence and the Word" (1986) 95 Yale Law Journal 1601.

Dagan, Hanoch, "Restitution and Slavery On Incomplete Commodification, Intergenerational Justice, and Legal Transitions" (2004) 84 Boston University Law Review 1139.

220 Derrida, Jacques, "The Force of Law: The Mystical Foundation of Authority" (1989-1990), 11 Cardazo Law Review at 925.

Dotan, Yoav, "Judicial Accountability in Israel: The High Court of Justice and the Phenomenon of Judicial Hyperactivism" (2002) 8:4 Israel Studies 87.

Drori, Ze'ev, "Society Strength as a Base for Military Power: The State of Israel during the Early 1950s" (2006) 12 Israel Affairs 412.

Dukium, The Negv CoexistenceF'ommNewsletter (September 2007).

Drummond, Susan G. "Prolegomenon to a Pedestrian Cartography of Mixed Legal Jurisdictions: The Case of Israel/Palestine" (December 2005) 50 McGill Lawjowrnd 899.

Elath, E., "The Bedouin of the Negev" (1958) 45:2 Royal Central Asian Journal at 129-130.

Engle Merry, Sally, "Law and Colonialism" (1991) 25:4 Law and Society Review 889.

Evans, Matt, "Defending Territorial Sovereignty Through Civilian Settlement: The Case of Israel's Population Dispersal Policy" (2006) 12 Israel Affairs 578.

Falah, Ghazi, "The Development of the 'Planned Bedouin Settlement' in Israel, 1964-1982: Evaluation and Characteristics" (1983) 14:3 Geoforum311.

Falah, Ghazi, "How Israel Controls the Bedouin in Israel" (1985) Special Issue: The Palestinians in Israel and the Occupied Territories 14:2 Journal of Palestine Studies 35.

Falah, Ghazi, "Israeli State Policy toward Bedouin Sedentarization in the Negev" (1989) 18: 2 Journal of Palestine Studies 71.

Feldman, Stephen, M., "An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law" (1991) 16 Law and Social Inquiry 205.

Finkelstein, Norman, "Myths, Old and New" (1991) 21:1 Journal of Palestine Studies at 66.

Finnemore, Martha, "International Organizations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organization and Science Policy" (1993) 47:4 International Organization 565.

221 Fitzpatrick, Peter, "Custom as Imperialism", in Jamil M Abun-Nasr, Ulrich Spellenbert and Ulrike Wanitzek (eels.), Law, Society andNational Identity in Africa (Hamburg: Helmut Buske, 1989).

Foucault, Michel, "Governmentality," in Graham Burchell, Colin Gordon, and Peter Millers (eds.), The Foucault Effect: Studies in Gozernmentality: mth Tim Lectures by and an Interview mth Michel FouatdtXChkago, Illinois: University of Chicago Press, 1991).

Forman, Geremy and Kedar, Alexandre (Sandy), "Colonialism, Colonization, and Land Law in Mandate Palestine: The Zor al-Zarqa and Barrat Qisarya Land Disputes in Historical Perspectives," (2003) 4 Theoretical Inquiries in Law 491.

Forman, Geremy, and Kedar, Alexandre (Sandy), "From Arab land to Tsrael Lands': the legal dispossession of the Palestinians displaced by Israel in the wake of 1948" (2004) 22 Environment and Planning D: Society and Space 809.

"Freezing of Demolition Orders Until the End of the Goldberg Committee's Work", Akhbaral-Naqab (Janmry29 2008) (Arabic).

Gal-Pe'er, I., "Beer Sheba and the Bedouin" in Yehuda Gradus and Eliahu Stem (eds.), Beersheba Book 0erusalem: Keter Publishing House, 1979) (Hebrew).

Garf inkle, Adam, "On the Origin, Meaning, Use, and Abuse of a Phrase," (1991) 27:4 Middle Eastern Studies 539.

Gertel, Shulamit, Law-Yone, Hubert, "Participation Ideologies in Israeli Planning" (1991) 9(2) Environment and Planning C: Government and Policy 173.

Goering, Kurt, "Israel and the Bedouin of the Negev" (1979) 9:1 Journal of Palestine Studies 3.

Golan, Amon, "The transfer of abandoned rural Arab lands to Jews during Israel's War of Independence" (1992) 63 Cathedra (Hebrew) 122.

Golan, Patricia, "Bedouin in Limbo," Jerusalem Post (December 24 2007).

Goldstein, Stephen, "Protection of Human Rights by Judges: The Israeli Experience" (1994) 38 St Louis University Law Journal 605.

Gorny, Yosef, "The Roots of the Consciousness of the Jewish Arab National Conflict and Its Reflection in the Hebrew Press in the Years 1900-18" (1976) 4 HaTziyonut (Hebrew).

222 Gross, Aeyal, M., "The Politics of Rights in Israeli Constitutional Law" (1998) 3 Israel Studies 80.

Habermas, Jiirgen, "The Public Sphere: An Encyclopedia Article (1964)" (1974) 3 New German Critique (trans. Sara Lennox and Frank Lennox) 49.

Halleli, Avraham, "Ha-Zekhooyot be-Mekarke'cen: Reka Heestoree-Klalee Shel Heetpat'khoot ha-Keenyan ba-Arets (The Rights in Land: General-Historic Background of Evolution of Property in Israel)" in Avshalom Shmueli et al. (eds.), ArtsotHa-Galeel (TheLands in Galilee) (Haifa: Haifa University, 1983) (Hebrew).

Hamdan, Hana, "The Policy of Settlement and 'Spatial Judaization' in the Naqab", 11 Adalah Newsletter (March 2005).

Harris, Ron, "Israeli Law" in Zvi Zameret and Hana Yablonka (eds.), The First Decade 1948- 1953 (Jerusalem: Yad Izhak Ben-Zvi, 1997) (Hebrew).

Hutchinson, Allan, "The Rule of Law Revisited: Democracy and Courts" in D. Dyzenhaus (ed.), The Rule ofLaw The Limits ofLegal Order(Oxford: Hart Publishing, 1999) 196- 224.

Ikenberry, John G. and Kupchan, Charles A, "Socialization and Hegemonic Power" (1990) 44:3 International Organization 283.

International Court of Justice (ICJ), "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory", Advisory Opinion of July 9, 2004.

Interview with Hussein Al-Rafai'ah, President of the Regional Council for the Unrecognised Villages (RCUV), Diyar Al-Naqab (undated), online: http://www.deyaralnagab.com/.

Izenberg, Dan, "Friedman Preparing Bill to Restrict High Court's Powers", Ha'aretz (August 23 2007).

Martinez Cobo, Jose, Study of the Problem of Discrimination A gainst Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986.

Kader, Asmal, "International Law and Practice: Dealing with the Past in the South African Experience" (2000) 94 American Society of International Law Proceedings 1.

Kark, Ruth, "Jewish Frontier Settlement in the Negev, 1880-1948: Perception and Realization", (1981) 17:3 Middle Eastern Studies 334.

223 Kark, Ruth & Garber, Haim, "Mapot-Reeshoom Karka'ot be-Erets Yeesra'el be-Tekoofat ha-Otomaneet (Registration Maps in Eretz-Israel in the Ottoman Period)" (1982) 22 Cathedra 113.

Kark, Ruth, "Planning, Housing and Land Policy 1948-1952: The Formation of Concepts and Governmental Frameworks" in Selwyn Ilan Troen and Noah Lucas (eds.), Israel: the First Decade of Independence (Albany, NY: SUNY Press, 1995) 461-493.

Katz, Jacob, "The Forerunners of Zionism," (1978) 7 The Jerusalem Quarterly at 10-21.

Katz, Yossi, "The Land will not be Sold: The Principle of National Land in the Legislative Process and Israeli Law" (2000) Karka (Hebrew) 48.

Kedar, Alexandre (Sandy), "A First Step in a Difficult and Sensitive Road: Preliminary Observations on Qzadanv Katzir" (2000) 16 Israel Studies Bulletin 3.

Kedar, Alexandre (Sandy), "On the Legal Geography of Ethnocratic Settler States: Notes towards a Research Agenda" in Jane Holder and Carolyn Harrison (eds.), Lawand Geography Current Legal Issues 2002, Vol. 5 (Oxford: Oxford University Press, 2003).

Kedar, Alexandre (Sandy), "Land Settlement in the Negev in International Perspective," 8 Adalah Newsletter (September 2004).

Kedar, Alexandre (Sandy) and Yiftachel, Oren, "Land Regime and Social Relations in Israel" in Hernando de Soto and Francis Cheneval (eds.), Swss Hurmn Rights Book: Realizing Property Rights, Vol.1 (Zurich: Ruffer&rub, 2006) 127.

Kennedy, David, "The International Human Rights Movement: Part of the Problem?" (2002) 15 Harvard Human Rights Journal 101.

Kersel, Gideon, Ben-David, Yosef, & Abu Rabi'a, Halil, "Transformations in Possession of Land by Negev Bedouin in the Last One Hundred Years: A Tribal Perspective" (1991) 33 Ha'Mizrach Ha'Hadash 39 (Hebrew).

Khalidi, Rashid, "Review: The Colonial Foundations of Israel" (1974) 3:4 Journal of Palestine Studies 137.

Kretzmer, David, "Constitutional Law" in Amos Shapira and Keren C. DeWitt-Arar (eds.), Introduction to theLawof Israel (Kluwer Law International, 1995).

Lahav, Pnina, "Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy" (1990) 24 Israel Law Review 211. Lahav, Pnina, "The Supreme Court of Israel: Formative Years, 1948-1955," (1990) 11 Studies in Zionism 45.

Lahav, Pnina, "Rights and Democracy: The Court's Performance" in Ehud Sprinzak and Larry Diamond (eds.), Israeli Democracy Under Stress (Boulder, London: Lynne Rienner Publishers, 1993) 125.

Lee, Luke T., "The London Declaration of International Law Principles on Internally Displaced Persons" (2001) 95: 2 The American Journal of International Law 454.

Lim, Chin Leng, "Neither Sheep nor Peacocks: T. O. Elias and Post-colonial International Law" (2008) 21 Leiden Journal of International Law 295.

Maoz, Asher, "Defending Civil Liberties without a Constitution - The Israeli Experience" (1988) 16 Melbourne University Law Review 815.

Maoz, Asher, "The Institutional Organization of the Israeli Legal System" in Amos Shapira and Keren C. DeWitt-Arar (eds.), Introduction to the Law of Israel (Kluwer Law International, 1995).

Markoe, Zaharah K, "Note: Expressing Oneself Without a Constitution - The Israeli Experience" (2000) 8 Cardozo Journal of International and Comparative Law 319.

Masalha, Nur, "A Critique of Benny Morris" (1991) 21:1 Journal of Palestine Studies 90.

Matsuda, Mari J., "When the First Quail Calls: Multiple Consciousness as Jurisprudential Method" (1992) 14 Women's Rights Law Reporter 297.

Matsuda, Mari J., "Love, Change" (2005) 17 Yale Journal of Law and Feminism 185.

Meir, Avinoam, "Territoriality among the Negev Bedouin in Transition from Nomadism to Sedentarism," in Philip Carl Salzman and Ugo Fabietti (eds.), Tribal and Peasant Pastoralism- The Dialectics of Cohesion andFragrmtation (Pavia, Italy: IBIS, 1996) 187- 207.

Meir, Avinoam and Zivan, Ze'ev, "Sociocultural Encounters on the Frontier: Jewish Settlers and Bedouin Nomads in the Negev", in Oren Yiftachel and Avinoam Meir (eds.), Ethnic Frontiers and Peripheries: Landscapes ofDewlopnvnt and Inequality in Israel (Boulder, Colorado: Westview Press, 1998).

Meitiv, B., "The Relationships of Kibbutz Nirim and the Bedouin, 1946-1948," (1977) 8 Notes on the Bedouin (Hebrew). Memmi, Albert, "Zionism, Israel and the Third World" (1972) Nos. 2,4 Bi-Tefutsot, Ha- Golah (Hebrew).

Mikessel, Marvin and Murphy, Alexander, "A Framework for Comparative of Minority Aspirations" (1991) 81 Annals of the Association of American Geographers 581.

Milovanovic, Dragan, "Chapter 2: Max "Weber - Law in Economy and Society", A Primer in the Sociology of Law(2d) (New York: Harrow and Heston, 1994) 36-60.

Monahan, Patrick, "The Road Ahead: Negotiation or Litigation" in Owen Lippert (ed.), Beyond the Nass Valley. National Implications of the Supreme Court's DelgamuukwDecision (Vancouver. Fraser Institute, 2000) 521.

Miiller, Harald, "The Internationalization of Principles, Norms, and Rules by Governments: The Case of Security Regimes" in Volker Rittberger (ed.), Regime Theory and International Relations (Oxford: Clarendon Press, 1993) 361.

Oded, Yitzhak, "Land Losses Among Israel's Arab Villagers" (1964) 7 New Outlook 10.

Patai, Raphael, "Musha'a Tenure and Co-Operation in Palestine" (1949) 51:3 American Anthropologist at 436.

Peleg, Ilan, "Jewish-Palestinian Relations in Israel: From Hegemony to Equality?: Palestinian-Israeli Relations" (2004) 17:3 International Journal of Politics, Culture, and Society 415.

Peller, Gary, "Cultural Imperialism, White Anxiety, and the Ideological Realignment of BrowT in Austin Sarat (ed.), Race, Law, and Culture: Reflections on Broun v Board of Education (New Yorh Oxford University Press, 1997) 193.

Pomerance, Michla, "A Court of UN Law" (2005) 38 Israel Law Review 134.

Rangwala, Tawfiq, S., "Inadequate Housing, Israel, and the Bedouin of the Negev" (2004) 42 Osgoode Hall Law Journal 415.

Regional Council for the Unrecognised Villages (RCUV), Naqab Development Plan- A Step towrds Development or a Continuation of Repression? (Arabic) online: http://rcuv.net/ar/report2.aspPid =46.

Regional Council for the Unrecognised Villages (RCUV), RCUV Requests Comment to the Goldberg Commission regarding Bedouin Settlement in the Negev (January 24 2008) (Arabic).

Ro'i, Yaacov, "The Zionist Attitude to the Arabs, 1908-1914" (1968) 4:2 Middle Eastern Studies 198. 226 Ro'i, Ya'akov, "The Relations Between Rehovot and Its Arab Neighbours (1890-1914)" in Daniel Karpi (ed.), HaTziyonut (Tel Aviv University Press/Kibbutz Meuhad Press, 1980) (Hebrew).

Russell, John, "Aspects of Palestine Agriculture", in Joseph Burton Hobman (ed.), Palestine's Economic Future (London: Lund Humphries, 1946).

Sa'id, Edward, "Zionism from the Standpoint of its Victims" (1979) 1 Social Text 7.

Saban, Ilan, "Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel" (2004) 36 New York University Journal of International Law and Politics at 964.

Saban, Ilan, "After the Storm? The Israeli Supreme Court and the Arab-Palestinian Minority in the Aftermath of October 2000" (2008) 14:4 Israel Affairs 623.

Shechter, Ya'akov, "Reeshoom ha-Karka'ot be-Erets Yeesra'el ba-Makhatseet ha-Shneeyah Shel ha-Me'ah ha-Yod-Tet (Land Registration in Eretz-Israel During the Second Half of the Nineteenth Century)" (1987) 45 Cathedra 147.

Shachar, Yoram, "History and Sources of Israeli Law" in Amos Shapira and Keren C. DeWitt-Arar (eds.), Introduction to the Law of Israel (Kluwer Law International, 1995).

Shafir, Gershon, Land, Labour andthe Origins of the Israeli-Palestinian Conflict, 1882-1914 (Cambridge, England: Cambridge University Press, 1989).

Shafir, Gershon, "Land, Labour and Population in Zionist Colonization: General and Specific Aspects" in Uri Ram (ed.) Israeli Society: Critical Perspectkes (Tel Aviv: Breirot Publishers, 1993) (Hebrew).

Shamir, Ronen, '"Landmark Cases' and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice" (1990) 24:3 Law & Society Review 781

Shamir, Ronen, "Suspended in Space: Bedouins under the Law of Israel" (1996) 30: 2 Law and Society Review 231.

Shamir, Ronen, "Legal Activism in a Bi-National Society. Israeli Palestinians and Jews at a Crossroad", A dalah Newsletter (2000).

Sharon, Moshe, "The Political Role of Bedouin in Palestine in the Sixteenth and Seventeenth Centuries" in Moshe Ma'oz (ed.), Studies on Palestine During the Ottoman Period (Jerusalem: The Magnes Press, 1975).

227 Shavit, Ari, "Ex-Chief Justice: Friedmann Reforms will make Israel Third World Country", Ha'aretz (April 8 2008).

Shehada, Safa, "Historical Background" in Ma'an: The Forum of Bedouin Women, The Arab Woman in the Negeu Realities and Challengs (Haifa: Roaa Translations and Publishing, 2005) 7-15.

Shurkin, Michael, "Is Zionism Colonialism?", Tjeek: A Journal of Jemsh Thought and Culture (2003), online: http://www.zeek.net/politics_0306.shtml.

Slattery, Brian, "The Nature of Aboriginal Title", in Owen Lippert (ed.), Beyond the Nass Valley National Implications of the Supreme Court's Delgamuukw Decision (Vancouver: Fraser Institute, 2000) 11-33.

Slattery, Brian, "The Metamorphosis of Aboriginal Title" (2006) 85 The Canadian Bar Review 255.

State of Israel, Initial Report of Israel to the UN Human Rights Committee under the International Covenant on Civil and Political Rights, UN doc. CCPR/C/81/Add.l3.

Stevens, Richard P., "Smuts and Weizmann" (1973) 3:1 Journal of Palestine Studies at 35-59.

Sultany, Nimer, "The Legacy of Justice Aharon Barak A Critical Review" (2007) 48 Harvard International Law Journal Online 83.

Tartakower, Arieh, "The Making of Jewish Statehood in Palestine" (1948) 10:3 Jewish Social Studies 207.

Tartakower, Arieh, "The Sociology of Political Life in Israel" (1966) 22:1 Jewish Social Studies 83.

"UN expert: Palestinian terror 'inevitable' result of occupation", Ha'aretz (February 26 2008), online: http://www.haaretz.com/hasen/spages/958358.html.

United Nations, Committee on Economic, Social and Cultural Rights, "The right to adequate housing," General Comment No. 4, UN Doc. HRI/GEN/l/Rev.7 (1991).

United Nations, Committee on Economic, Social and Cultural Rights "The Domestic Application of the [International] Covenant [on Economic, Social and Cultural Rights]", General Comment No. 9, UN Doc E/C.12/1998/24.

United Nations, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, UN Doc. E/G12/1/Add.90.

228 United Nations, Concluding Observations of the Human Rights Committee: Israel, UN Doc. CCPR/C/79/Add.93.

United Nations, "The Limburg Principles on the Implementation of the International Covenant on Economic Social and Cultural Rights", UN Doc. E/CN.4/1987/17, Annex.

United Nations, Official Records of the General Assembly, Fifty-seventh session, Supplement No. 40 (A/57/40).

United Nations, Official Records of the General Assembly, Fifth-eighth session, Supplement No. 40 (A/58/40).

United Nations, Report on Conclusions and Recommendations of the Committee against Torture: Israel, CAT/C/XXVII/Concl.5. (Concluding Observations/Comments).

United Nations, Report of the International Law Commission, adopted at its 53rd session, 2001, UN Doc. A/56/10,207.

United Nations, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/6/17/Add.4.

United Nations, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, John Dugard, UN doc. A/HRC/7/17.

United Nations, UN Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295.

United Nations Development Group, Guidelines onlndigpnous Peoples' Issues (February 2008).

Waxman, Ghaim I., "Messianism, Zionism, and the State of Israel", (May 1987) 7:2 Modern Judaism at 175-192.

Weinstock, Nathan, "The impact of Zionist colonization on Palestine society before 1948" (1973) 2:2 Journal of Palestine Studies 50-63.

Williams, Colin FL, "Minority Groups in the Modern State" in Michael Pacione (ed.) Progress in Political Geography (London: CroomHelm, 1985) 111-157.

Working Group on Indigenous Populations, Working Paper by the 0?airpersonrRapporteur, Mrs. E rica-Irene A. Does, on the aonaept of "indigenous people", UN Doc. E/GN.4/Sub.2/AG4/1996/2. Yahel, Havatzelet, "Land Disputes between the Negev Bedouin and Israel" (2006) 11:2 Israel Studies 1.

Yiftachel, Oren, "The Internal Frontier: Territorial Control and Ethnic Relations in Israel" in Oren Yiftachel and Avinoam Meir (eds.), Ethnic Frontiers and Peripheries: Landscapes cf Devdopment and Inequality in Israel (Boulder, Colorado: Westview Press, 1998) 39.

Yiftachel, Oren, "Planning and Social Control: Exploring the Dark Side" (1998) 12:4 Journal of Planning Literature at 395.

Yiftachel, Oren, "The Goldberg Committee and its Consequences", Akhbar al-Naqab (June 17 2008) (Arabic).

Yngvesson, Barbara, "Making Law at the Doorway: The Clerk, the Court, and the Construction of Community in New England Town" (1988) 22 Law and Society Review 623.

Yoaz, Yuval and Lis, Jonathan "Former Supreme Court Chief Slams Planned Justice System Reforms", Ha'aretz (November 7 2007).

Zysblat, Allen, "Protecting Fundamental Rights in Israel without a Written Constitution" in Itzhak Zamir and Allen Zysblat (eds.), Public Law in Israel (New York: Oxford University Press, 1996).

OTHER MATERIAL

Akavia, A, "Administration of land under state supervision", Internal Development Authority memo (Jerusalem: Israel State Archives, January 8 1953) (43) 5480-gim/13 (Flebrew).

Ben-Gurion, David, no date, entries from 6 and 13 December 1948.

Ben-Gurion, David, no date, entry of 4 August 1949.

Cabinet Resolution No. 1999, Establishment ofan AuthorityforBedadn Settlement Arrangements in theNegtu, (Unofficial Translation) Quly 15 2007).

Central Bureau of Statistics (CBS), Characterization and Ranking ofLocal Authorities (2002).

Central Bureau of Statistics (CBS), Table Bl: Population in Urban Localities 2006 and Regional Councils 2005, online: http://www.negev.co.il/statis/tables/2001.htm.

230 Central Bureau of Statistics (CBS), The Golden Atlas: The Most Comprehensive, Detailed and Updated Atlas in Israel- Map of Israel Qerusalem, 2000), online: http://gis.cbs.gov.il/shnaton53/all_israel.jpg.

Centre on Housing Rights and Evictions (COHRE), Letter to Prime Minister Ehud Olmert, "Housing rights violations in the 'unrecognised villages' in the Negev" (May 29 2008).

Heron, Gil Scott, "The Revolution will not be Televised" (1971).

Horowitz, Y., Enforcement of the PUnning and Building Laus - Demolition Orders, Compilation of the Local Authorities (continuously updated) (Hebrew).

Interview with Alexandre (Sandy) Kedar, Law Professor at Haifa University Qanuary 2 2008).

Interview with Atwa abu Freih, General Manager at the Regional Council for the Unrecognised Villages (RCUV) (December 27 2007).

Interview with Ilan Saban, Law Professor at Haifa University (December 26 2007).

Interview with Morad al-Sane', lawyer at Adalah - Legal Center for Arab Minority Rights in Israel (December 27 2007).

Interview with Rina Rosenberg, International Advocacy Director, Adalah - Legal Center for Arab Minority Rights in Israel Qanuary9 2008).

Israel Lands Council (ILC), Decision 29 (August 1967), Decision 64 (28 October 1968).

Jewish National Fund, Memorandum of A ssociation of Jewish National Fund, A rtide 3a, Government Gazette No. 354 (June 10 1954).

Knesset Internal Affairs and Environment Committee, Protocol of November 6,2006, Meeting on Master plans of Bedouin settlements in the Negev and home demolitions, online: http://www.lmesset.gov.il/protocols/data/html/pnim/2006- ll-06.html (Hebrew).

Letter from Southern District Governor Albert Abramson to High Commissioner, Israel State Archive (2) 2-mem/80 and 81 (October 13,1920).

Ministry of Construction and Housing, Presentation, Residential Settlement of the Bedouin in the Negeu Current Situation, Policy and New Organizational Structure (April 2007).

231 Ministry of the Interior, "Annual Supervised Financial report For Regional Council Abu Basma", Department for the Inspection of Local Authorities (September 28,2006), online: http://www.moin.gov.il/apps/pubwebsite/MainMenu.nsf/ (Flebrew).

Negev Statistical Yearbook, Table 16: Load Authorities by Sorio-Econonnc Ascription (2003), online: http://www.negev.co.il/statis/tables/9006.htm.

Pappe, Ilan, Lecture on "The Ethnic Cleansing of Palestine", University of Toronto, March 26 2008.

Prime Minister's Office, Press Release, "Comprehensive Development Plan for Abu Basma Regional Council Approved" (July 18,2005), online: http://www.pm.gov.il/PMOEng/Archive/Press+Releases/2005/07/spokmesl8070 5.htm.

Prime Minister's Office, "Budget Complements for Abu Basma Regional Council" Government Decision 3956 Quly 22,2005), online: http://www.pmo.gov.il/PMO/Archive/Decisions/2005/07/des3956.htm (Hebrew).

State of Israel, Government Decision 2071 of November 7 1993.

State of Israel, State Comptroller's Report 52B (2002).

United Nations Statistics Division, "Composition of macro geographical (continental) regions, geographical sub-regions, and selected economic and other groupings", online: http://unstats.un.org/unsd/methods/m49/m49regin.htm.

Weitz, Yosef, Letter from Director of the JNF's Department of Lands to Finance Minister Levy Eshkol, "Report on the country's land regime" (Jerusalem: Central Zionist Archives, September 5,1954) KKL5/22273 (Hebrew).

Yago, Glenn, "Whatever happened to the 'Promised Land'?", Paper presented at the annual meeting of the Society for the Study of Social Problems (New York, 1976).

232