Tuesday, May 26, 2015
Elder of ZiyonThe case has been in the courts for years.
In late 2006, seventeen Bedouin of the al-Uqbi family filed six land claims saying that the land they are on, including Al-Araqeeb, belongs to them. After five years of legal proceedings, the court heard extensive testimonies of experts and witnesses on the behalf of both sides, reviewed historical documents, and scrutinized land laws from the Ottoman period, the British mandate period and that of Israel. The country's leading experts in historical and political geography testified. For the plaintiffs spoke Ben Gurion University’s Prof. Oren Yiftachel, a critical geographer and a social scientist. Testifying for the state was Prof. Ruth Kark, a leading expert on the historical geography of Palestine and Israel from the Hebrew University.[5]
The plaintiffs argued that the state order to expropriate the land in 1951 was made on the erroneous assumption that under Ottoman law, the land was classified as Mawat (uncultivated and not adjacent to settled lands). They said that the land had been cultivated and owned by them, and so classified as Miri land under Ottoman legal terms. In an expert opinion filed to the court, Oren Yiftachel said that these “tribal areas” of scattered tent clusters were not at that time registered with the authorities, but were nevertheless considered settled and met the definition of a “village” in the 1921 Land Ordinance.[5]
The state’s expert witness, Prof. Ruth Kark, said that prior to 1858 there had been no fixed settlements on or near the disputed land. The first permanent settlement had been Beersheba, which the Ottomans founded in 1900 and which is 11 kilometers from Al-Araqeeb – refuting the Beduin’s claims that the land could not have been Mawat because it was both cultivated and next to a settlement.[5] The State presented an aerial shot of the place proving that the Al-Araqeeb area had no cultivated land during the British mandate period.[24]
The verdict was presented by Judge Sarah Dovrat in the Beersheba District court on March 15, 2012.[25] Based on the experts' testimony and the presented documents, the judge ruled in favor of the State, saying that the land was not "assigned to the plaintiffs, nor held by them under conditions required by law," and that they still had to "prove their rights to the land by proof of its registration in the Tabu" (Israel Lands Authority). The judge said that the Bedouin knew they were supposed to register but did not. She said, "The state said that although the complainants are not entitled to compensation, it has been willing to negotiate with them," and that "it is a shame that these negotiations did not reach any agreement." The court also ordered the Bedouin to pay legal costs of 50,000 NIS (approximately U.S. $13,500).[5]
In its ruling, the court criticized the expert on the behalf of the plaintiffs, stating that his testimony lacked a sufficient factual basis value and reliable basis.[26] In addition, the court held that the Bedouins' own internal documentation indicates they were well aware of the legal requirement to register the lands in the Land Registry, but chose not to do so.[5] The judge affirmed that the practice of removal of encroached settlements carried out by the State is acceptable and legal.[5]
Last week, Israel's Supreme Court ruled yet again that Israel was right and the haters are wrong.
From Israel Hayom:
Something happened in the legal world this week. The High Court of Justice rejected out of hand a petition filed by the Bedouin, backed by leftist organizations, about the village of Al-Arakib in the Negev desert. The place has become a symbol and a flashpoint for everything having to do with state lands. The Bedouin claim ownership of land in the northern Negev on the basis of "ancient rights." The petitioners spoke of "historical land" from which they had been banished, and argued that the Aloukabi clan had worked those lands at the beginning of the 19th century.Israel-haters have been using the Bedouin issue over the past few years to delegitimize Israel within the Green Line in the same way that they use spurious Palestinian Arab claims to delegitimize Israel from without. There are dozens of NGOs that pretend to advocate for Bedouin in the Negev when in fact they are simply looking for excuses to bash Israel.
Professor Oren Yiftachel lent his assistance to the plaintiffs by serving as an expert witness, arguing that there had been an ancient Bedouin settlement in the area of Al-Arakib, but all his arguments were rejected. Both the district and the High Court of Justice criticized him severely. Judge Sarah Dovrat wrote: "It became clear that he [Yiftachel] was relying on sources and quoting them without having taken the trouble to read them." In the High Court ruling, Justice Esther Hayut wrote: "An analysis of the evidence reveals that Professor Yiftachel's argument is not supported by objective perspective." A Bedouin tribe might have stopped at the place in question during its peregrinations, but this does not prove that there was ever a pre-existing settlement there.
The interesting thing was the discussion about the desolation of the Negev in the 19th century. The expert witness for the prosecution, Professor Ruth Kark, argued that the plots of land at Al-Arakib were not settled and farmed with any regularity until the start of the British Mandate. She made her case using land surveys, historical maps, official documents, and travel logs. The importance of the legal debate goes beyond the individual story of Al-Arakib and pertains to the historic claim to the land of Israel as a whole, which was mostly wilderness, both in terms of agriculture and population.
An important piece of evidence was the British Palestine Exploration Fund survey map, a thorough mapping survey conducted from 1871-1877 and published in seven volumes. The map was so detailed that it was printed in 26 issues (which are available today online.) The PEF people delineated every wadi, every settlement, tree, and home. They crisscrossed the territory, and an examination of the map shows how empty and barren the land was, and how few people lived there.
The Bedouin plaintiffs claimed a right to the lands in question because they were "native sons," but the court cast doubt on that argument, because according to their own version of events the clan had arrived in the Negev after it was already under the control of the Ottoman Empire, and therefore were not a native minority that had been conquered by a foreign regime. The verdict makes it clear that the Bedouin who filed the suit testified that their tribe, the Aloukabi clan, had fought alongside Arab armies against Israel in the War of Independence. After they lost, some of the tribe were dispersed to the Gaza Strip and Jordan. At no stage was a deed of ownership presented -- not even a record that the land had been registered to the tribe under the Ottomans. Nor was any evidence presented that either the Ottomans or the British Mandate government had acknowledged that the Bedouin had any native rights. The High Court struck down in principle the attempt to "generate rights out of nothing."
This is a ruling of unparalleled importance and it should serve as a basis for settling the matter of Bedouin lawsuits over Negev land. This is a powder keg that has ramifications for our linkage to the land of this country. This issue can't be left hanging. The new government should take note.
(h/t Yoel)
