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The Efficacy of the Israeli Legal System in Protecting and Fulfilling Naqab Bedouin Land Rights

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The Efficacy of the Israeli Legal System in Protecting and Fulfilling Naqab Bedouin Land Rights 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.
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