Land Settlement in the Negev in International Perspective

Sandy  Kedar

Land Settlement in the Negev in International Perspective

2006

Abstract

I am going to discuss-from the perspective of international law-the status of the Arab Bedouins' rights to the lands they occupy and use in Israel. This perspective is important and of increasing influence, as is evident from the opinion of the International Court of Justice regarding the separation fence/wall. Further, international law affects the de-legitimating discourse on the status of the Arab Bedouin, and has a potential influence on the Israeli legal system and on possible processes of compromise or mediation, if and when such processes commence. My look at international law focuses on the following: The principle of equality, in general, and its application regarding the rights to housing and land, in particular; The issue of internally-displaced persons; The rights of indigenous peoples.

Introducing the Negev-Bedouin land issue from the international indigenous land rights perspective, this comparative study suggests options for the recognition of their land. The book demonstrates that the Bedouin land dispossession, like many indigenous peoples', progressed through several phases that included eviction and displacement, legislation, and judicial decisions that support acts of dispossession and deny the Bedouin's traditional land rights. Examining the Mawat legal doctrine on which the State and the Court rely on to deny Bedouin land rights, this volume introduces the relevant international law protecting indigenous land rights and shows how the limitations of this law prevent any meaningful protection of Bedouin land rights. In the second part of the work, the Aborigines' land in Australia is introduced as an example of indigenous peoples' successful struggle for their traditional land rights. The final chapter analyzes the basic elements of judicial recognition of the land and shows that the basic elements needed for Bedouin land recognition exist in the Israeli legal system. Proposing practical recommendations for the recognition of Bedouin land, this volume is a key resource to scholars and students interested in land rights, international law, comparative studies, and the Middle East. Morad Elsana is a research scholar and professional teacher at the American University (DC). Prior to this role, he served as a visiting assistant professor of law at the Californian Western School of Law, fellow of the Israel Institute. Elsana is the recipient of several prestigious fellowships such as The Fulbright Outreach fellowship; The NIF Civil Rights Leadership fellowship; and the McGill University "Middle East Program for Civil Society & Peace Building" fellowship. His research focuses on human rights, indigenous peoples' rights, legal pluralism comparative law, racial justice, and the Arab Minority in Israel. Routledge Studies in Middle Eastern Politics 99 Erdoğan's 'New' Turkey Attempted Coup d'état and the Acceleration of Political Crisis Nikos Christofis 100 The Iraqi Kurds and the Cold War Regional Politics, 1958-1975 To those who have never given up their ancestor's land; to those who have never been deceived by the delusional colonial recognition of their land. To all the Palestinians, especially the Bedouins, to all the indigenous peoples around the globe I dedicate this work. To my parents (my late father Abdallah Salman Elsana and my mother Sarah Elsana), to the people who supported me after my father, my uncle Nawaf Assanea', my brothers and my sisters. Last but not least to my wife Abeer and my kids: Amer, Ghaith, Ahmad, and Zakaria, I dedicate this work. x Acknowledgements Middle Eastern, Islamic and Jewish Studies for her consistent support along my first publishing journey. Last but not least, I am grateful to my family, especially my wife, Abeer Alsane-Abu Dayyeh and my beloved son Amer Elsana, who were constantly reading and editing my drafts, showing support and understanding by helping, listening, and sharing my dilemmas, tolerating many absence days, and my long working nights. To all of them, I am most thankful. The dispossession of indigenous peoples' land rights remains one of the most common human rights issues around the world. However, despite its disastrous consequences on indigenous peoples and recent indigenous rights' advocacy achievements on both national and international levels, the problem remains. This study intends to add another stone to the literature in this field. Namely, it will introduce the dispossession of indigenous land in an additional part of the world, the Negev/Naqab region, the southern part of Israel through different circumstances (i.e., timing, location, sociopolitics) while showing the actions, policies, legislations, and ideologies that "collaborate" to dispossess the land of those "weak peoples" permanently. These similarities show that the actions taken against the Bedouin fall into the same category of activity against indigenous peoples in many places around the world, namely, the category of settler-colonialist occupation. As is well known, the issue of indigenous land dispossession accelerated after Europeans discovered the New World and began conquering, occupying, and colonizing indigenous peoples' land. This was similar to the classical colonization, soon it took the form of settler colonization (settler-colonial occupation). Obviously, the expansion of settler colonization required the dispossession of land for the settlement of the new immigrants in the colonies; thus, Europeans refused to acknowledge most indigenous peoples' rights, denying their sovereignty and freedom to practice their culture. On several occasions, they even denied their basic right to exist. The issue of indigenous peoples' land rights has been approached from several research frameworks such as settler-colonialism, multiculturalism, indigeneity, apartheid, and many others. Among the many, however, settlercolonialism has been the most prevalent framework used to study this issue, since "It is a framework that highlights commonalities in the history and contemporary situation of indigenous peoples in many parts of the world." According to Rowe and Tuck, settler-colonialism is The specific formation of colonialism in which people come to a land inhabited by (Indigenous) people and declare that land to be their new home. Settler colonialism is about the pursuit of land, not just labor or resources. Settler colonialism is a persistent societal structure, not just an historical event or origin story for a nation state. Settler colonialism has meant genocide of Indigenous peoples, the reconfiguring of Indigenous land into settler property. Steinman also notes that settler-colonial framework is the most dominant among indigenous peoples' land issues. This framework imbedded the dominant issues of conflict between indigenous peoples and states. Patrick Wolfe in his comparative article, "Settler Colonialism and the Elimination of the Native," writes that access to land is the primary motive of settler colonialism and therefore settler-colonialism is an eliminatory process. Wolfe emphasizes that "the primary motive for elimination is not race (or religion, ethnicity, grade of civilization, etc.) but access to territory." And because "Settler colonialism is inherently eliminatory…." Wolfe further states that the "settler-colonial project [relies] on the elimination of native societies." Citing Raphael Lemkin, he states that "[…] settler colonialism […] strives for the dissolution of native societies. […]; it erects a new colonial society on the expropriated land base-as [he] puts it, settler colonizers come to stay: invasion is a structure not an event." Therefore, "Settler colonialism destroys to replace." Settler colonials justify indigenous peoples' land dispossession by colonial ideology that claims they could better use of the land. According to Wolfe, "The ideological justification for the dispossession of Aborigines was that "we" could use the land better than they could." As Glenn states, "The settler goal of seizing and establishing property rights over land and resources required the removal of indigenes, which was accomplished by various forms of direct and indirect violence, including militarized genocide." Glenn continues, noting that "Settlers sought to control space, resources, and people not only by occupying land but also by establishing an exclusionary private property regime and coercive labor systems, including chattel slavery to work the land, extract resources, and build infrastructure." Glenn writes that unlike classical colonialism settler colonialism came to stay. Thus, it aimed to acquire the land essential for permanent settlement. To realize this, colonialism had to first eliminate indigenous peoples. Such elimination was done in a variety of ways: genocide, forced removal, or through assimilation. Later, settler-colonialism acquired the indigenous land through imposing property regimes that transformed land ownership from indigenous peoples to settlers. Settlers adopted an ideology that justified elimination of indigenous peoples' land claiming that indigenous peoples are savage, uncivilized peoples who do not efficiently use the land. Thus, indigenous peoples inevitably had to give way to civilized Europeans. Veracini, in his book Settler Colonialism: A Theoretical Overview, notes that "Settler colonialism is a global and transnational phenomenon" that dominated the past but continues to exist in the present. Veracini shows

INTRODUCTION Conflict resolution and peacemaking are political rather than legal exercises. Parties to a conflict may agree to relinquish rights granted them in international law, particularly if such concessions serve to obtain comparable trade-offs from the other side. What matters for the achievement and sustainability of a peace accord is that it not leave any of the parties with a deep sense of having been victimized by a one-sided and unjust agreement. Such a lingering sense of unfairness and victimization inevitably fuels a revanchism that sooner or later rekindles the conflict. And yet, international law-particularly its most fundamental norms, known as "peremptory norms"-needs to be taken into account by would-be peacemakers, not for "legalistic" reasons, too often seen as irrelevant to the political dynamics of the conflict, but because they embody quintessential principles of fairness and justice. International law does not allow states to disregard peremptory norms in the conduct of their international relations, nor may they enter into agreements that conflict with them. In the context of the Israel-Palestine conflict, there are two such peremptory norms with the deepest implications for the resolution of its territorial aspects. They are the democratic principle of the right to self-determination by a majority population in previously mandated territories, and the prohibition against the acquisition of territory by war, which applies to aggressors and victims alike. That is why what international law has to say about the territorial issues in this conflict, as described in The IsraelPalestine Conflict in International Law: Territorial Issues by Iain Scobbie and Sarah Hibbin, cannot be ignored by would-be peacemakers. It is because so far it has been largely ignored that all previous peace initiatives have come to grief. Because these two peremptory norms are dealt with extensively in the following essay, there is no need to expatiate on them here, other than to stress their important role in the perception of the fairness of any proposed terms for a permanent under international law to conduct negotiations in good faith for a peaceful solution. It would seem that an occupant who proposes unreasonable conditions, or otherwise obstructs negotiations for peace for the purpose of retaining control over the occupied territory, could be considered a violator of international law. 20 For a dossier of the relevant documents, see Whiteman M (Ed), 2 Digest of

The following report explores the content and scope of any rights that the Bedouin1 of the West Bank possess under International Humanitarian Law (IHL), International Human Rights Law (IHRL) and potentially as indigenous people, under the emerging body of international law in this area. As ‘protected persons’ under IHL, the Bedouin, in common with all Palestinians, enjoy primary protection from forced displacement. In addition, the Bedouin may enjoy supplementary rights and protections under IHRL, including indigenous rights, on account of their particular needs, history and background. Whilst the Bedouin are an integral part of Palestinian society, they have a number of distinct features, ranging from a semi-nomadic lifestyle, certain cultural practices, history, habits and tribal relationships, as well as a particular approach to land usage based on traditional customs, often coupled with a lack of formal property ownership. Although the right to cultural life is a basic human right for all persons, the emerging body of indigenous rights focuses on protecting the traditions and cultural practices of certain groups in a way that mainstream human rights law does not fully explore. The doctrine of indigenous rights has initially emerged in response to the degradation of the rights and lifestyles of indigenous groups in many Western settler colonial States in which members of these groups became nationals with full citizenship rights. However, there is no reason why the concept does not cover groups who can be classified as indigenous within occupied territory in which IHL is the applicable legal regime, and the Occupying Power temporarily administers the territory and is responsible for the welfare of the local population as a de facto government. The introduction of new concepts, such as the indigenous rights discourse, into a highly charged political context in which IHL affords the primary and ultimate protection to people living under occupation presents a challenge. Not only that the doctrine of indigenous peoples rights is considered as non-binding soft law, it is also perceived by some as detrimental to the key objective of Palestinian self-determination by suggesting that there are different minorities, or groups deserving special protection, within the broader Palestinian polity. Opponents of the indigenous rights perspective argue that such an approach undermines the fact that Palestinians in occupied Palestine – not merely the Bedouin – are at equal risk of rights violations regardless of any particular status they enjoy. It is contended that categorizing Palestinians into different groups results in fragmented identity and diverts attention from the real struggle which is ending the occupation, fulfilling the right to self-determination and putting an end to IHL violations by Israel, the Occupying Power.

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