Winston Churchill at the Be'er Sheva District Court

Report from the Be'er Sheba District Court, March 6, 2010 by Adam Keller


Last week,
Nuri el-Okbi was held in the detention cell in the basement of Be'er Sheba's Hall of Justice, and the police demanded that he be remanded in custody until the end of judicial proceedings which might last for months or years – on charges of "trespassing". This week he sat, free, in the hall of Justice Sarah Dovrat, on the sixth floor of the same building – in the civil proceedings where he demands of the state to recognize that in the lands of Al-Arakib he is not "a trespasser" but the owner.


Adv. Rawash, for the state, started cross-examining the witness: "Professor Yiftachel, you came here as an expert witness to bolster the argument that the land subject to these proceedings should actually go into Bedouin ownership. The opinion which you submitted to the court describes the alleged centuries-long habitation and agricultural cultivation of this land by the al-Okbi Tribe. But Professor Ruth Kark of Jerusalem, an experienced researcher with professional qualifications no lesser than yours, has at the request of the state presented a counter-opinion to the court. She asserts that in the Nineteenth Century the area was not inhabited at all, there were only ruins and perhaps a tent or two. In general, throughout the Negev there were no fixed places of habitation, and the nomadic Bedouins subsisted mainly on pasture as well as robbery. The Okbi Tribe claims they had a village which was destroyed by Israel - but in fact, such a village had never existed, so it could not have been destroyed. What do you say to this?"

"Ruth Kark also accused me of a political bias to which I will not reciprocate. I can only express surprise that as a researcher, especially one who claims to be involved in studying the indigenous society, she chose to ignore the written documents and the extensive oral traditions of the Bedouin society," said the expert witness, Professor Oren Yiftachel of the Department of Geography and Environmental Planning at the nearby Ben Gurion University. "Her arguments about the Nineteenth Century Negev situation are based mainly on reports of European travelers, almost all of whom were momentary visitors who did not speak the local language, nor did they know or understand the Bedouin society. Moreover, most of them did not at all pass the Arakib Area which is the subject of the proceedings here. In writing her opinion Professor Kark did not bother to indicate any knowledge, even a superficial one, of the details of the land in question or of the communal history of the Okbis. It does not seem that she ever made any visit to the ground, nor did she speak with any member of the tribe

"We should also remember that these travelers were not exactly objective people who came with an open mind, to observe the situation and society in the Negev and record what they saw. They were mostly devout Christians who came to this country in order to see the places where Jesus walked, where the events of the Old and the New Testaments had taken place. They adjusted what they saw to the preconceived notions which they had brought with them from Europe. For example, the French Victor Guérin in 1863 writes of the Negev as a place where great cities of Biblical times once stood but which had now fallen into the hands of
"The descendants of Ishmael and Esau", who now pasture there their flocks. That is what he called the Bedouins, and it was not a compliment – in his terms these were the bad guys of the Bible.

"The travelers had a Western concept what a "village" or "place of habitation" was, and they filtered what they saw through European cognitive frames. In the places where they came from, a "village" usually was a cluster of stone houses or huts, built relatively densely, and having a clear external border. Such places they did not see in the Negev, and they concluded that the Negev was not inhabited. But geographical research shows that in this period, communities on the verge of the desert were differently organized. Usually, there were clusters of tents, relatively distant from one another, at a number of locations according to the season, with an occasional mud-built house (baika) or a stone one, especially for the Sheikh, around a well, dam or other focus of communal activity center. These communities functioned as geographical, administrative and economic centers for the families living all around. Western travelers could pass right by such a place and not realize that they were seeing a village, an inhabited place which sometimes had a long history.

"The same goes for farming methods. Travelers usually perceived 'agriculture' as a verdant landscape of a climate with plentiful precipitation, such as that of their own countries. Even so, the reports of these Western travelers include a lot of references to the agriculture which the Bedouins maintained under difficult conditions, the cultivation of wheat, barley, corn and melons ... "

Rawash: Where do you get the reference to melons? I see in your opinion a reference to sources mentioning wheat and barley, but not melons.

Yiftachel: Wait a minute, I'll find the reference. The sources are burned here on my disk, but it is hard to search them. (Searching for several minutes). Here, Abu Sita is talking specifically about the cultivation of melons by the Bedouins. Not that this detail is so important. Even if there were no melons but only wheat and barley, it definitely proves that the Bedouins were engaged in agriculture.

Judge: Professor Yiftachel, once you've written something in the opinion which you presented to the court as evidence, the accuracy of every word and detail is important. There are no unimportant details.

Yiftachel: what is really significant is that the Bedouins subsisted mainly on agriculture, at least from the Nineteenth Century on, and that land ownership was determined by their tribal law, recognized by the central government until the establishment of the State of Israel. Specifically, the clear evidence - geographical, written, and oral tradition – indicates that the Arakib area was inhabited and cultivated by the al-Okbis and other tribes, at least since the 18th and 19th centuries onwards. Without any doubt the tribe was dispossessed of land which had been held legally and whose possession was previously recognized by the authorities.

Rawash: In your opinion you're talking about "Assigned Land". But you do not bring any document showing that the Ottoman or British authorities assigned ownership of land to the Al-Okbis or other Bedouins. When you talk about "assigning land" you mean a father who bequeathed land to his sons.

Yiftachel: It's also a form of land assignment.

Judge: "Land Assignment" is a clear legal term, which refers to cases where the government allocates land to citizens or residents.

Yiftachel: This is an appropriate perception for the State of Israel in 2010, but it does not fit the society and law which prevailed in the Negev before 1948, and certainly not in the Ottoman period. It was not a situation which begins with a government holding land and deciding whether or not to allocate it to somebody. We must remember that from the Seventeenth Century until the Nineteenth there were long periods when the Ottoman Empire was not in effective control of the Negev. Bedouin tribes conducted their own affairs and took up many attributes of sovereign states, and they arranged the legal issues of land ownership by their own extensive legal system. For example there is an important land agreement from 1883, which involved the three tribal confederations of Tarabin, 'Azazmeh and Tiyaha, with all their Sheiks, and which is reminiscent of an international agreement between states.

Rawash: Professor Ruth Kark wrote in her opinion that the Bedouins had no regular land system capable of regulating ownership, and that the documents you brought are private agreements between persons which have no binding force indicating ownership.

Yiftachel: This is definitely not true, Bedouin society had a very clear concept of land ownership, it was one of the most important things in their lives, and they regulated it among themselves. Also now, it still is among the most important things in their lives. They are very careful about land ownership as defined under their own legal system. They regard land as their property even when it was taken away from them decades ago, and they refuse to accept land belonging to other Bedouins even when the State of Israel offers them such land. The internal legal system of the Bedouins exists even today, in parallel with the laws of the State of Israel. All the more it existed during the Ottoman and British rule, when the government gave official recognition to the legal system of the Bedouin society.

Rawash: But according to the Ottoman Land Law of 1858, these lands were considered as "Mawat ", "Dead Lands" which had no ownership.

Yiftachel: This is the Israeli interpretation to the Ottoman Law, an interpretation formulated decades after the Ottoman Empire ceased to exist. This was not the interpretation of the Ottoman Government itself gave to its own laws. As I mentioned, in 1858 the Ottoman Government did not exercise real power in the Negev and was in no position to enforce laws there. Decades later, around 1900, the Ottoman government began to maintain a real presence and control in the Negev. Notably in establishing the city of Be'er Sheva, where we are right now, as an administrative center of government in the Negev. But they were careful to respect the legal status of the Bedouin society and their land ownership rights. The Ottomans took care to purchase the land on which Be'er Sheva was established. When you buy land you thereby acknowledge the ownership rights of the seller from whom you bought it, and of the community to which the seller belongs.

Rawash: Sultan Abdul Hamid II held extensive lands in the Negev under his personal ownership.

Yiftachel: This exactly proves my point. Abdul Hamid II was a big land speculator. He bought a lot of lands – in fact, more in the north of the country than in the Negev. The point is that he bought the land. He respected the fact that the Bedouins were the owners and he had to pay them for it. It was an empire, he was the Sultan and he was not exactly a principled democrat. Still, it never occurred to him to just take the land from his Bedouin subjects and claim that they are not the real owners. Had he considered the land to be "Dead", "Mawat", under the law of 1858, that would have given him the right to take it without paying. But that is definitely not what he did.

Rawash:
In 1921, at the beginning of the Mandate, the British Government enacted the "Dead Lands Ordinance" and gave the Bedouins two months to come up and register at the Land Registration Office their ownership of lands which they claimed. Hardly any Bedouin did that. They can’t come up with ownership claims now.

Yiftahel: This is the common judicial argument under which the Bedouin claims of land ownership are rejected. But it ignores salient facts.

On March 29, 1921 – before the expiration of that two-month period – a delegation of Bedouin Sheiks went to Jerusalem, to confer with Winston Churchill, at the time the British Secretary of State for the Colonies. In the official concluding statement, which I located at the Public Records Office in London, the Sheiks declared their loyalty to His Majesty's Government, while Churchill confirmed an earlier promise by High Commissioner Herbert Samuel, that "The special rights and customs of the Bedouin Tribes of Be'er Sheba will not be interfered with".

Subsequently, the British Mandatory Government excluded the Be'er Sheba District from the application of the new land law, absolving Bedouin inhabitants from the duty of registering their land. Instead, a Tribal Court was set up in Be'er Sheba, which remained active throughout the Mandate period. Cases of land dispute were usually settled by a bench of three Sheiks, in accordance with Bedouin Tribal Law.

The British recognized the Bedouins' ownership over the land. Whoever did want to register their land at the Land Registration Office was free to do so throughout the time of British rule, and 64,000 dunams of Bedouin lands were indeed registered. However, those who registered their land were usually those who wanted to sell it to non- Bedouins (including Jews). In order to continue holding the land, or to let sons inherit it, or to sell to other Bedouin, there was no need to have recourse to the governmental Land Registry Office. For such purposes, the traditional Bedouin tribal law was quite adequate. The assertion that Bedouin families or tribes which had not registered their land ownership in 1921 have "missed the train" and lost title to the land was never heard before 1948. This is not a British law, but an original Israeli judicial argument giving the British law a new interpretation which the British themselves never advanced.

What I want to emphasize is that the Israeli legal system made a distorted use of laws, applying them 'backwards' in time in order to ethnocratically promote dispossession. The State of Israel made of Ottoman and British laws an opposite use to that made by the Ottoman and British authorities which enacted the same laws. The most important of these is the "Dead Lands Ordinance" which was completely changed by the State of Israel - changed for the purpose of dispossession.

Neither the Ottomans nor the British are known to have dispossessed any landowner on the basis of the "Mawat" laws or because it was not registered in 1921. On the contrary, the cultivation of empty lands was encouraged. Only the state of Israel made an opposite use of the ordinance, to effect dispossession - and only against Arabs (both within Israel and in the Occupied Territories). It is a particularly reprehensible practice when directed against Bedouins, because both the Ottomans and the British recognized Bedouin customary law, as a legitimate way for the acquisition and division of land.

Rawash: The text which you presented about the meeting of the Sheiks with Churchill is not the same as that given in your written opinion. As far as I am concerned, this document does not exist. We will object to its being introduced to the court as evidence.

Yiftachel: It is a difference of a few individual words which does not influence the meaning. This is a key document which throws light on the whole substantive issue.

Judge: In legal matters every word is important.

(In the end, the document is formally presented to the court.)
https://mail.google.com/mail/?ui=2&ik=1badf00904&view=att&th=1273e2d20efa3fba&attid=0.2&disp=inline&zw

Rawash: In your statement of opinion you asserted that the Bedouins should be considered "An Indigenous People" like the Australian Aborigins. Professor Kark, however, opposes such a comparison, because indigenous peoples have lived where there was previously no state of any kind, while the Bedouins lived in the Ottoman Empire.

Yiftachel: First of all, there are many who consider that the Bedouins - at least some of the tribes - lived in the Negev long before the Ottoman Empire. In any case, the status of an indigenous people, recognized by the UN, is not determined in reference to the state which used to rule the territory in past times but in connection to the state which rules it at present and to how that present state treats its indigenous residents. The situation of the Bedouins in Israel puts them into this framework.

In Australia nowadays it is no longer asserted that Australia was "an empty land" ("terra nullis") when the Europeans arrived at its shores, and that therefore they did not have to take into consideration the property rights of the Aborigins. Now the Australians, through an important ruling of their Supreme Court, do give consideration to the Aborigins' legal system. So do Canada and other countries. It's time for Israel to join them.

The "Transitional Justice" approach holds that in the transition between land ownership regimes, the human and property rights under the previous regime should be protected as far as possible, and that meticulous attention must be given to the rights of people who belong to indigenous communities. Among other things, this means that groups and individuals who suffered from arbitrary acts of the new authorities must be compensated and their property rights restored in as close a way as possible to the original form - but without significant damage to new populations which arrived in good faith at minority areas, in this case, the Jewish population which had come to the Negev after 1948. The case of the al-Okbis can be adequately dealt with in such a framework. I.e., restoration of the family's rights, without damage to communities as "Givot Bar" established by new residents who arrived in the area after the family was expelled from its land.

Prof. Oren Yiftachel's home page:

http://www.geog.bgu.ac.il/members/yiftachel/yiftachel.html

Yiftachel's original expert opinion, Kark's counter-opinion and Yiftachel's response

(so far available only in Hebrew, English translation worked on)

http://docs.google.com/Doc?id=dgmkttft_27fqh8crdm&btr=EmailImport

https://docs.google.com/viewer?a=v&pid=gmail&attid=0.1&thid=1273e2e535c5c9cc&mt=application%2Fpdf&url=https%3A%2F%2Fmail.google.com%2Fmail%2F%3Fui%3D2%26ik%3D1badf00904%26view%3Datt%26th%3D1273e2e535c5c9cc%26attid%3D0.1%26disp%3Dattd%26zfe%3Dwindows-1255%26zw&sig=AHIEtbR9TkBGO-SHE6G-a4NWuGXcc4gmDQ 

https://docs.google.com/viewer?a=v&pid=gmail&attid=0.1&thid=1273e2d20efa3fba&mt=application%2Fpdf&url=https%3A%2F%2Fmail.google.com%2Fmail%2F%3Fui%3D2%26ik%3D1badf00904%26view%3Datt%26th%3D1273e2d20efa3fba%26attid%3D0.1%26disp%3Dattd%26zfe%3Dwindows-1255%26zw&sig=AHIEtbRz6sDjvTR-Jm_gxURjuBItZ2ckSg