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From: oren yiftachel <yiftach@bgu.ac.il>
Date: 2010/6/26
Subject: Kark vs al-Uqbi, chapter 3

shalom to friends and colleagues, here are reflections from another round in the uqbi trial. hopefully will interest you.
 
salam, oren
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oren yiftachel
geography dept, ben gurion university
beer-sheva, israel, 84105
phone: w: 972-8-647-2011; fax: 972-8-647-2821
homepage:
http://www.geog.bgu.ac.il/members/yiftachel/yiftachel.html
 
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'Ardrama' continues – Kark vs Uqbi Chapter 3

Third Cross-Examination Prof. Kark – 23 June 2010

On Wednesday 23 June, another court session took place in the two-year long trial of the al-Uqbi tribe vs the state of Israel. The tribe is attempting to recover its confiscated ancestors lands, from which it was evicted in 1951 and to which it was never allowed to return. The state claims the lands were always 'mawat', hence never belonged to the Uqbis, and should be registered permanently as state property.

The state's main expert witness, prof. Ruth Kark, took the stand for the third time for cross-examination. Our legal team continued to present her with a set of difficult questions, prepared by a group of Arab and Jewish land experts (with important help of experts from around the world – to whom we thank very much). The team used existing and newly researched material to challenge Kark's many problematic historical, geographical and legal assertions, and what we believe are distorted interpretations.

The cross-examination attempted to move beyond exposing Kark's shortcomings towards building the (more difficult) positive case for traditional land ownership over al-Uqbi's lands. We began by challenging successfully the validity of Kark's interpretation of documents she presented in the last session, mainly the 1931 British census and several Supreme court decisions. The discussion over the 1931 census was quite dramatic, as Kark repeated her claims that the census shows that the bedouins were still nomadic, and our lawyer made her read to the courts a whole passage (p. 335) in the census report which describes the Bedouins land ownership system and intensive agricultural practices. 'Nomadic' we argued to the court, was an English equivalent to the Arabic "bedouin' which says very little about land ownership or rights. Throughout the day, Kark's tactic was to give long lectures, often straying totally from the topic. In this case she elaborated endlessly on the different types of nomadism, and how it reflected an important part of Bedouin's life. The impression, though, was clear – she distorted the British census to hide any recognition of bedouin systematic agriculture and land ownership.

The second phase explored Kark's knowledge of the Bedouin land system, in light of her claim that 'the bedouins had no organized land system that could allocate rights'.. we asked her a host of questions about the bedouins' long-standing practices and methods of documentation, sale, lease, inheritance and arbitration. She knew some of the terms, but she often had to look them up in her thick notebooks… anybody in the full gallery could see that she is no expert on the subject on which she wrote the report. Her claim, again and again, was that because the land wasn't formally registered by the ottomans or british, it has 'no owners'… the 'asnad' were 'only internal' and had 'no significance'. Yet, in view of our evidence of the customary land system (which persists until today) her stubborn repetition seems hollow.

a telling moment came when Kark became exasperated with what appeared like accusations of colonial attitude towards the Bedouin. Kark suddenly called out: "I know you think I am anti-Bedouin, but I am not. I was raised as a member of a Hashomer Hatza'ir movement (socialist-Zionist youth movement)… I voted for Meretz once, so I am not anti-Arab, quite the opposite!". the judge reacted "let's keep politics out of this…".

The third 'chapter' of our investigation challenged Kark's claim that the ottoman and British didn't recognize the bedouin land system. We presented her with many documents and historical events, such as the purchase of Beersheba's lands by the Ottomans, the 1921 declaration by Winston Churchill promising Bedouin legal autonomy, and the Order of Council and High Court decisions affirming the power of tribal courts. We also presented the court evidence about widespread tabou registration of arab lands well after 1921  – all based on previous traditional ownership. This means that the british themselves bypassed their own mawat ordinance. When asked to explain british acceptance of the customary system, Kark had to admit -  "I have no explanation"; "this still needs to be researched"; "this is yet unclear" or more substantially "I found out that the British didn't care about the Negev, so they let the locals run it the way they wanted". 

At this stage the judge, who is usually stern and formal, began to move to Kark's defence, and prevented our lawyers from further hammering the hollowness of her anti-Bedouin claims. The lawyers saw that as a sign that this line of investigation is about to exhaust its usefulness and moved to two remaining issues. The first was Kark's claim that in 1951 the al-Uqbis moved 'by agreement' from their 'dira' (traditional lands) to their new and impoverished site, near Hura.  We requested evidence to this vindictive assertion, to which she quoted Ben-Gurion's answer to Emil Habibi's from 1952 Knesset protocols. When we requested to see any document with the signatures of Uqbi's shaych, the state lawyers intervened that this material was 'classified'. We have many documents showing that they were forcefully removed. this issue, then, remains unresolved legally, although it's plainly clear that no tribe would willingly abandon their lands, possessions and villages.

Finally, we attacked Kark's sweeping claims that the Bedouins are not indigenous and cannot claim any indigenous rights consistent with recent UN declarations (as claimed in my expert opinion).  But on this topic it was more tedious than before, as she went on to lecture to the court  about aboriginal peoples around the world and their systems of belief in which a 'centre piece' in the Godly (not human) ownership of land…. She also argued against the various UN or scholarly definitions of 'indigenous', offering to the court a new definition – indigenous people are only the first owners of the land. When asked, who then are the indigenous people of the Negev, she answered "the Jews and the Amaleqim" (the ancient cruel enemies of the Jews often mentioned in the bible).  Hence, she concluded, only the Jews and the Amaleqim (who are nowhere to be found) can receive indigenous rights on the Negev lands… of course, we presented to the court the widely accepted definition of indigenous people as groups colonized by other nations, who have been dispossessed from most resources, land and political power by the colonizing state.

Overall, the session was good for the al-Uqbis, although less dramatic than the previous two. Kark and the state clearly learnt from their problems in the previous sessions and prepared several tactics to 'buy time' and engage the court in far-fetched, often ridiculous arguments. This worked at times, as she prevented the investigation from exploring several other mistakes and distortions in her documents. Yet, this clearly showed her shortcomings, and the shortcomings in the entire state argument, which is based on many distortions of history, geography and law.

I think we were mostly (though not entirely) successful in 'unpacking' the main state expert, and the line of argument that all the bedouins were nomads and all their land mawat until the onset of the British mandate. The legal team headed by Michael Sfard and Raduan abu-Ghrara did a great job in 'translating' our research and documentary material into a highly intelligent and piecing investigation. To remind you, this was the first time there was a serious challenge to the state argument that has used the mawat rule since 1962 (and in the negev since 1984). We found gaping holes and distortions in Kark's historical descriptions (travelers accounts); in her claims that no agriculture existed in the naqab; in her definition of 'nomadism' and semi-nomadism'; in her purposeful overlooking of the traditional bedouin land system; her silence about bedouin autonomy under ottoman and british rule; and in her denial of the bedouins' indigenous status. In the investigation she was strong on mapping issues (and indeed, most of the maps show no settlement, housing or cultivation in the negev till well into the C20; and in the formalistic defence of land registration procedures). She was also strong on buying time and giving the court long speeches on topics such as the land purchases by the ottoman sultan, Christian travelers to the Land of Israel, and on mapping expeditions, and the putative never-ending nomadism of the bedouins.

However, the debunking of most of her claims doesn't mean that the land is likely to be given back to the Uqbis. Beyond the ethnocratic hegemony (in which Jewish land is a sacred value), and not withstanding the current Jewish-nationalist fever in Israel, there is also a huge obstacle in the legalistic need to prove that the Uqbis lived on and cultivated the land continuously since 1858. the mawat law, as we know, has been the most powerful tool in the legal Judaization of Israel/Palestine, and our task from now on is to try and find cracks in this draconian law. Only then will we find justice for the Uqbis and the Bedouins. The chances for this are still low, but I think we have moved forward in the long battle for justice in the Naqab.

The next session is on 7 July where land surveyor and state land administrator will take the stand. I will keep you posted.

Thanks again for all those who helped!

Oren