Opinion Editorials, August 2010

Legalizing Injustice in the Naqab and Implications for “Democracy” in Israel

By Nasser Rego

Al-Jazeerah, CCUN, August 8, 2010

 Nasser Rego considers the legal and political framework of the escalating ethnic cleansing of the Negev – or Naqab – by the Israeli authorities and argues that, given the fracturing of the “solomonic pillar of law propping up Israel’s democratic facade”, the time has come for the international community to fulfil its responsibility to protect Israel’s imperiled Arab citizens.

 In Israel, among the legal provisions that enable demolition orders of illegal structures and evacuation orders against illegal residents are articles 205 and 212 of the Planning and Building Law, Article 21 of the Property Law and Article 64 of the Repossession Law. At face value, these provisions curb illegal building activity. Court rationales offered for the relevance of judicially-issued demolition orders are that they are executed to “remove an obstacle to others, to maintain civil order and to prevent a nuisance to the public”.1

When evacuation and demolition orders against the Arab Bedouin village of Al-Araqib in the Naqab (Negev) were issued in 2002 and in June this year, the effect of their issuance went beyond removing obstacles, neutralizing nuisances and maintaining order. What was obviously not felt at the time of their issuance was what 300 Palestinian Arab citizens of Israel felt as a consequence on 27 July 2010.

“The motivation for uprooting the land and destroying building structures is part of an ongoing state policy towards the non-recognition of historical land use, ownership and possession of Naqab lands by the Arab Bedouin that are indigenous to the area.”

The legal fiat granted by these legal provisions enabled the demolition of the entire housing of 300 residents of the unrecognized village of Al-Araqib, the uprooting of olive and carob trees, the destruction of animal pens and chicken coops, the confiscation of personal belongings, the damaging of water canisters and the confiscation of power generators. The canisters and generators were there because residents of Al-Araqib are deliberately denied water and electricity, like 83,000 other Palestinian Arab residents of the Naqab’s unrecognized villages. It meant around 200 children without a home in Al-Araqib. The Regional Council for the Unrecognized Villages, a Naqab-based non-governmental advocacy, said that only a few dozen people from Al-Araqib have other homes.2 The destruction of the village was directed by a 1,300-strong contingent of security forces and police equipped with guns, stun grenades and bulldozers.

Human Rights Watch reported that an appeal was filed by residents prior to the demolition. The residents argued that the state had no legal grounds to demolish their homes. However, their appeal was rejected by the Kiryat Gat Peace Court (court of first instance) at 12:15 a.m. on 27 July, the morning of the demolition.3 Police and security forces, however, began congregating at the junctions around al-Araqib on 26 July. Dr Awad Abu Freih, spokesperson for al-Araqib village and resident, took that as evidence that the appeal to the court was a foregone conclusion. Al-Araqib residents had been issued evacuation orders in 2002 by the Israeli government based on Article 21 of the Property Law. This provision provides for the owner (which Israel claimed to be) of a property to evict anyone residing on it illegally. However, since their issuance in 2002 no action was taken by the authorities. In June 2010, several other residents from al-Araqib received government letters threatening them with home demolition on the basis of Article 64 of the Repossession Law (Hotza'a Lapoal). This provision allows for authorities to evict other residents who are in a “legal relation” with others who’ve been issued similar orders, i.e. those issued orders in 2002. Further, Israeli authorities carried out the demolitions despite al-Araqib residents’ ongoing legal claims to the land before the Beersheva District Court.4

"The [Israeli army] document refers to nine specific [Bedouin] tribes and says that they live on 100,000 dunams of land, land which is fertile and so they are an obstacle to future [Jewish] settlement and development.”

The motivation for uprooting the land and destroying building structures is part of an ongoing state policy towards the non-recognition of historical land use, ownership and possession of Naqab lands by the Arab Bedouin that are indigenous to the area. Its purpose is spelt out in a document issued by the Israel Defence Forces (IDF) and classified “secret”. The document is entitled “Transferring Bedouins from the Negev” (Doc. No. 54-84811959) and was issued on 14 November 1951. It states that security and financial reasons are the primary reasons to transfer the Bedouin from the Negev. The document refers to nine specific tribes and says that they live on 100,000 dunams of land, land which is fertile and so they are an obstacle to future [Jewish] settlement and development.

The purpose is less explicitly stated in the Jewish National Fund’s (JNF) initiative that informed the destruction of al-Araqib village – the “Blueprint for the Negev”. Blueprint Negev, JNF's 600-million-dollar campaign to develop the region, states that the initiative will bring about a 70 per cent population growth in the Negev, reduce unemployment, enhance the quality of life for all residents and “build a stronger Israel”.5 The Or Movement, started up in 2002, aims to populate the Galilee and the Negev with Jewish settlers, and is presently cooperating with the JNF within the framework of its “Blueprint for the Negev” initiative. The Or Movement works specifically in developing the area of Giv’ot Bar, built on the lands of al-Araqib. The movement’s raison d'être echoes that stated in the IDF secret document. It states that “Israel's long-term security and economic survival is dependent upon its ability to truly settle all areas within its borders”.6 Even Israeli Prime Minister Binyamin Netanyahu parroted utterances similar to the IDF’s and JNF’s. Netanyahu was quoted in Ha’aretz saying at a 25 July government meeting regarding amendments to the Citizenship Law: “I don’t want to leave things as is because we are under real attack on this issue [of Israel as a Jewish state]... Different elements will demand national rights within Israel, for example, in the Negev, if we allow for a region without a Jewish majority. It has happened in the Balkans, and it is a real threat.”7

Ethnic cleansing helped by the Jewish National Fund

JNF green thumb endeavours to plant a forest on al-Araqib lands and enable Jewish settlement on those lands has meant having to free the land of the “obstacles” and “nuisances” in the way. These “obstacles” and “nuisances” are Arab Bedouin of the Naqab. However, what is especially troubling is not that particular human beings are considered “obstacles” and “nuisances” that have to be cleansed off the land but two more urgent issues that flow from the fact. First, that the court, that pillar of democracy whose purpose is to uphold the rule of law and ensure that administrative action is not arbitrary and discriminatory, is at times actively engaged in arbitrary and discriminatory action. The character of this action is “the planned deliberate removal from a specific territory, persons of a particular ethnic group, by force or intimidation, in order to render that area ethnically homogenous”, the definition of “ethnic cleansing” offered by the UN. Second, that such action is only the beginning of similar action in the near future for the indigenous community of 83,000 from the Naqab’s unrecognized villages. An indication of similar action of clearing entire villages is seen when the Israeli planning authorities undertook measures to evacuate the entire Naqab sister villages of Atir and Umm al-Hieran. In 1956, Arab Bedouin residents of the sister villages of Atir and Umm al-Hieran were forced to move to their present location by military government order. In 2002, the government decided to establish the Jewish settlement of Hiran in the vicinity of these villages.8 In April 2004, the authorities had filed with the courts evacuation lawsuits against all residents of the Umm al-Hieran village.9

“The fragility of the Israeli legal system’s authority is demonstrated in how local authorities explicitly dismiss certain court orders, such as those issued with regard to Umm al-Hieran.”

The fragility of the Israeli legal system’s authority is demonstrated in how local authorities explicitly dismiss certain court orders, such as those issued with regard to Umm al-Hieran. In October 2006, the Beersheva Magistrate Court decided to postpone the execution of a judicial evacuation and demolition order it had issued in August 2004 against Umm al-Hieran, following a motion filed by the human rights organization Adalah. However, the order for postponement was ignored by the planning authority, the Israel Lands Administration (ILA), which then went ahead with demolishing nine homes in June 2007.10

On 30 July 2009, the Beersheva Magistrate Court issued further judicial evacuation orders with the aim of realizing the government intension to remove the roughly 1,500 people living in the sister villages of Atir and Umm al-Hieran to make way for the Jewish settlement of Hiran and to facilitate continued JNF forestation efforts there.11 On 4 August 2010 security forces and police returned to al-Araqib. They demolished structures that were rebuilt following the initial destruction of the village on 27 July. Human rights organizations reported that the police used brutal violence and arrested six. Since the 1970s thousands of homes and structures belonging to the Palestinian community have been demolished in the Naqab. However, with the recent destruction of al-Araqib, it seems we are entering a new phase of entire villages being cleared under legal license.

International responsibility to protect

At this juncture, we are forced to question the substantive relevance of the “rule of law” in Israel. If the courts issue judicial demolition and evacuation orders for entire villages as they did for Atir and Umm al-Hieran, and as they have acquiesced to in al-Araqib, and the legal avenues to challenge such orders are slim, what recourse do people suffering from discriminatory government action have? To where do they turn if not the legal system? If indeed we are witnessing an escalation of government policy in the Naqab towards ethnic cleansing sanctioned by the judiciary, what role is the international community obliged to play? Does it have a “responsibility to protect”, to intervene when crimes against humanity such as ethnic cleansing take place?

“If ... we are witnessing an escalation of [Israeli] government policy in the Naqab towards ethnic cleansing sanctioned by the judiciary, what role is the international community obliged to play? Does it have a ‘responsibility to protect’, to intervene when crimes against humanity such as ethnic cleansing take place?”

The principle of “responsibility to protect” was explored in the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) that studied the moral and legal responsibility of states to protect their inhabitants.  The UN General Assembly later adopted Resolution A/RES/63/308 on the Responsibility to Protect in 2009, agreeing to continue discussions on the principle. The principle holds that states bear primary responsibility for the protection of the people under their care. When states fail to make good-faith attempts to fulfill this responsibility, it devolves upon the international community of states to protect populations at risk from domestic threats such as severe state repression and crimes against humanity.12

Netanyahu’s harking to the Balkans is indeed ironic. The national rights and autonomy that the Kosovo Albanian minority were demanding stemmed from widespread and systematic cultural and political marginalization in Serbia. As Slobodan Milosevic launched a brutal offensive against Kosovo Albanians, the world was witness to some of the worst ethnic cleansing, genocide and crimes against humanity since World War II. By bringing the Balkans into the discussion, Netanyahu has shown us exactly what should scare the international community into action to protect. As indigenous Naqab Palestinian citizens demand recognition for their rights to land among other fundamental cultural, political and civil rights, they are being met with government campaigns that are graduating towards the clearing of entire villages. As the solomonic pillar of law propping up Israel’s democratic facade fractures, leaving populations like Naqab Palestinians without legal or physical shelter, how will history write this episode? As a post-Balkans ethnic cleansing campaign that we had a responsibility to protect but in which we failed because we interpreted it as otherwise?

Notes

1. Case BS 008759/05, State of Israel vs. Person Unknown, Beer Sheva Magistrate Court, 21 November 2005 (on file with Human Rights Watch), Human Rights Watch, Off the Map: Land and Housing Rights Violations in Israel's Unrecognized Bedouin Villages (2008) at 72-73.

2. Human Rights Watch, "Israel: Halt Demolitions of Bedouin Homes in Negev: Pre-Dawn Raid Destroys Entire Village" (1 August 2010).

3.Human Rights Watch, "Israel: Halt Demolitions of Bedouin Homes in Negev: Pre-Dawn Raid Destroys Entire Village" (1 August 2010).

4. Human Rights Watch, "Israel: Halt Demolitions of Bedouin Homes in Negev: Pre-Dawn Raid Destroys Entire Village" (1 August 1 2010).

5.http://support.jnf.org/site/PageServer?pagename=NewMinisterOfNegevDevelopment.

6. http://www.jnf.co.uk/negev_or.html.

7. http://www.haaretz.co.il/hasite/spages/1181530.html (Hebrew).

8. Hana Hamdan, "The Policy of Settlement and 'Spatial Judaization' in the Naqab", 11 Adalah Newsletter (March 2005) at 4.

9. Human Rights Watch, Off the Map: Land and Housing Rights Violations in Israel's Unrecognized Bedouin Villages (2008) at 73-74, Adalah - Legal Centre for Arab Minority Rights in Israel, “Adalah Files Motion to Cancel Orders to Demolish 33 Homes in the Unrecognized Arab Bedouin Village of Umm el-Hieran in the Naqab, on which the State Plans to Establish a Jewish Town,” Adalah Press Release (14 February 2007).

10. Adalah - Legal Centre for Arab Minority Rights in Israel, “Adalah Asks Attorney General to Open Immediate Investigation into ILA’s Demolition of Nine Homes in Unrecognized Village of Umm el-Hieran in the Naqab,”  Adalah Press Release (11 July 2007).

11. Adalah - Legal Centre for Arab Minority Rights in Israel, “Adalah Appeals against Court Decision Evicting Residents from Arab Bedouin Unrecognized Village of Umm al-Hieran in the Naqab: Israel Land Administration Seeks to Evacuate the Village and Build Jewish Town of Hiran on the Land”, Adalah Press Release (25 October 2009)
12. For a challenging exploration of the international law principle of the ‘responsibility to protect’ see Natalie Oman, “The ‘Responsibility to Prevent’: A Remit for Intervention?”, 22:2 Canadian Journal of Law and Jurisprudence (July 2009) 335-380

Nasser Victor Rego is a civil and human rights expert and PhD candidate at Osgoode Hall Law School, York University, Canada.

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editor@aljazeerah.info & editor@ccun.org