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Ben-Gurion University
Neo-Gramscian Scholarship in the Service of Negev Bedouins


24.05.18
Editorial Note

In 2012 IAM reported on a court case where the Bedouin Al-'Uqbi tribe claimed in the Negev an area known as Al Araqib. The Bedouins argued their ancestors cultivated the land for centuries. Numerous court cases have dealt with these and other claims. There were several ways to prove rights to land which were discussed in the court proceedings but in many cases the Bedouin tribes failed to provide proof of ownership.  

A new book came out recently, Emptied Lands: A Legal Geography of Bedouin Rights in the Negev, by three scholars, Alexandre Kedar, Ahmad Amara and Oren Yiftachel, presenting the complex relations over disputed ownership of land of these Bedouin tribes in the Negev and the State of Israel and detailing the long litigation process in the Israeli courts which culminated in ruling in favor of the state. 

This book project, as the authors explain, "spans over two decades of research and activist work. During this period, we collaborated with hundreds of people, and it is impossible to mention each by name. However, we want to extend a warm acknowledgment to each and every one for their help, expertise, courage, and humanity in the uphill battle for Bedouin rights and recognition."  

To put it in a simple terms, for two decades these scholars, who specialize in the fields of Geography and Law, have advised a group of Bedouins and guided them how to appropriate land without having the proper proof of ownership. As part of this appropriation some Bedouins invaded land which they consider to be their own which regretfully they can't prove ownership. The scholars promised them success and encourage them to litigate with a vast support from the NGO sector and free service by numerous scholars whose salaries are paid by the taxpayer. The Bedouin tribe was led to believe that in the end of the day they will gain ownership of the land. In the authors wording, "Novel in Israel is that recently a small number of Bedouin claimants have begun to bolster their claims with expert reports and the assistance of academic experts including the present authors." 
 
The book's central tenet is that the State of Israel has considered all of the Negev land as Mawat, that is, dead and empty land. By claiming this, the state, according to the authors, in effect dispossessed Bedouin rights to the land, that their ancestors cultivated and the State prevented the Bedouins from registering it on their names. The authors prove that contrary to this claim the Negev desert was neither dead nor empty. However, not surprising, the State never claimed this, only that the disputed plots of land were such. 

To make their case, the scholars argued that their position was supported by a declaration voiced by Winston Churchill, the British Secretary of State for the Colonies, who said in a meeting with the High Commissioner in 1921, that the British will not harm the special rights and customs of the Bedouin. The authors interpret this declaration, that Churchill meant it to be a proof of ownership of land by the Bedouins. 

As IAM reported in March 2012 Judge Dovrat was very critical of Yiftachel's conduct as an expert and wrote in her ruling "I felt uncomfortable with Prof. Yiftachel’s cross examination when it transpired that he relied on sources and quoted from them without bothering to read them, instead he quoted from quotes that appeared in a different source. The expert’s squirming on the witness stand on this matter, not only left an uncomfortable feeling, more accurately a sense of embarrassment for the expert, for the predicament in which he found himself. The expert should not only be objective, in offering his opinion, but he should also read the sources to which he refers, or he should immediately state, without prevaricating, that he relied on secondary sources instead of undergoing lengthy and embarrassing questioning, at the end of which he confesses that that is the case, and there is no need to add more. A glimpse of his cross examination will suffice and I will not expound further on this." Instead of admitting making an error in court, in the book the authors claim that "In the al-'Uqbi case Kark faced a strong rebuttal in the form of expert opinions written by one of us (Yiftachel) with the assistance of the other two."  

The authors accused Judge Dovrat of preferring Professor Ruth Kark who gave an expert opinion on behalf of the State.  Rather than furnishing evidence of bias, the authors evoke Antonio Gramsci, the Italian communist who inspired the Neo-Marxist paradigm in the academy. Gramsci famously claimed that knowledge and facts are not objective but rather represent the views of the hegemonic classes.  They write: "The variegated links between power, knowledge, and dispossession have of course been a subject of much analysis in the social sciences and philosophy. Scholars such as Antonio Gramsci, Michel Foucault, and Arundhati Roy, to name but a few, have analyzed the power, economic, and political systems that strengthen the tendency of intellectuals to support hegemonic discourses, often on behalf of the state or social elites, while at the same time representing themselves as 'independent' and 'objective' experts.”  They state that Kark, is part of the so-called "organic intellectuals" (who represent their own class) [and] tend to legitimize the existing power structure”. For those who are not familiar with the Neo-Marxist, critical jargon, the authors essentially say that Kark, and by exertion the Judges, represent the ruling classes in Israel and should not be trusted.
    
In the proceedings of the appeal to the Supreme Court in 2014 Judge Esther Hayut announced dishonesty and misconduct by the authors, as contended by the State:

"The State further contends that the Appellants acted unlawfully and submitted without permission, within the framework of the appeal, an amended version of the opinion on behalf of Prof. Yiftachel. This is despite the fact that the lower court did not allow its submission and ordered that it be ignored. In addition, within the framework of the appeal and without permission, the Appellants submitted an article written by Prof. Yiftachel regarding the issues that arise in the present proceeding and which allegedly constitutes an adaptation of the expert opinion he submitted in the proceeding (Prof. Yiftachel, Sandy Kedar and Ahmad Amara) "Re-Examining the 'Dead Negev Doctrine': Property Rights in Arab Bedouin Regions" 14 Law and Government 7-147 (2012) (Hebrew)). This article, too, did not stand before the lower court. Therefore the State wishes to ignore the revised version of the expert opinion submitted by Prof. Yiftachel, submitted by the appellants at the stage of the appeal, and the article based on the current proceeding. Also, the State further contends that some of the professional literature submitted by the Appellants in the framework of the appeal were not presented by them to court and therefore should be also ignored. I would like to state first of all, that a perusal of the article to which the claim relates indicates that it is indeed based on the expert opinion submitted by Prof. Yiftachel in the present proceeding, while processing the expert  opinion into the format of an academic article, and that the Appellants use it as an additional expert opinion on their behalf, without the article being submitted to the lower court. Also, the appellants quote from various sources to which the article refers to without having been submitted to the lower court or the appeal. The is much sense in the State's claim, when referring to this article and the new added references that he is referring to. In addition, and in accordance with the decision of the lower court dated March 7, 2010, the contents of Prof. Yiftachel's third expert opinion should be ignored insofar as it deviates from the response to Prof. Kark's expert opinion."

Unsurprisingly, missing from the book are the all court proceedings that give a totally different perspective on the issue. It is clear that the purpose of the book is to present the reality desired by the authors through the lens of the neo-Marxist, critical paradigm. According to these prisms, the state, with its judges as the Zionist agents, wants to dispossess the Palestinian enemy - in this case the Negev Bedouins - and takeover their lands. 











INTRODUCTION

TERRA NULLIUS IN ZION? 

I.1   ROCKETS IN “OPEN SPACE”

Four events that occurred during the violent summer of 2014 provide an appropriate starting point to this book. During what was known as Operation Protective Edge or the War on Gaza, Israel bombed large parts of the Gaza Strip and Hamas launched rockets on Israeli cities and towns.1 The first event occurred in July 2014, when journalist Elisheva Goldberg visited the unrecognized Bedouin village she named Tel al-Barad, home to approximately 300 people:2

When I visited one recent afternoon, a rocket had just landed in the village’s livestock pen. According to government sources, the rocket had fallen in one of the country’s “open areas”—a term Israeli officials frequently use when describing rocket attacks, and one implying that the rockets dropped harmlessly in empty fields. But “open areas” are not always empty. They also encompass many of the Bedouin villages of southern Israel.3

The second event occurred on July 18, 2014, the eleventh day of fighting. In the early evening a rocket launched from Gaza fell on another Bedouin unrecognized village, Qasr al-Sir, near the city of Dimona, killing an Israeli Bedouin citizen, Auda al-Wajj, and wounding two of his daughters. The Israeli daily Haaretz reported that

the family . . . lived in an unnamed patch of tin houses some three kilometers from Dimona [or 30 kilometers east of Beersheba]. The rocket exploded in the yard outside their house, and showered it with shrapnel. . . . No sirens sounded . . . and there’s nowhere to hide,” Sheikh Juma’a Akshahar told Haaretz. . . . “The state isn’t intercepting these rockets and isn’t protecting the citizens in the shacks. We are transparent.”4

Internal security minister Yitzhak Aharonovich arrived at the scene and told Sheikh Juma‘a that Iron Dome cannot cover 100% of the area and does not protect open areas.5 Aharonovich was referring to the effective Iron Dome missile-defense system, which is credited with the small number of Israeli casualties. The low number is also attributed to people taking shelter within seconds of hearing a siren. However,

none of these [protective] mechanisms operate in “open areas.” . . . For the Bedouins of southern Israel—who are Arab, Palestinian, and Israeli all at once—there is nowhere to run. They find themselves both outside the protection of the Israeli state and targeted by Hamas. They are a population that has fallen through the cracks—a population protected by no one.6

A petition by the Association for Civil Rights in Israel to the High Court of Justice on behalf of local Bedouins soon followed, requesting that the state supply Bedouin villages with defensive facilities similar to those provided to nearby Jewish settlements. The Court rejected the petition, upholding the government’s position that the lack of shelters and mobile safe rooms (mamad) is not the result of discrimination against the Bedouins but rather their illegal settlement and unauthorized building. According to the Court, “While the state is obliged to its residents’ security in general, it has no specific obligation to provide protection to all residents.” The panel of three justices added that the state policy on this matter  “does not contain any flaw that would justify this court’s intervention.”7

Figure 1. Bedouin unrecognized village near Beersheba.

The perception and treatment of a Bedouin Arab village that has existed for at least six decades and accommodates several hundred residents merely as an “open space” or “open area,” an Israeli version of the terra nullius doctrine, is a telling entry point to this book, in which we analyze the legal geography of the contested Negev (in Arabic, Naqab) region.8 Most Bedouin localities in this region are officially classified as “unrecognized” and “illegal,” and their populations are considered “trespassers” on state land. The lack of recognition of dozens of villages, though their inhabitants commonly live on their ancestors’ land, derives from state denial of the indigenous land regime that existed in the Negev before the establishment of Israel in 1948 and from Bedouin indigeneity.

Since its establishment, the Jewish State has dedicated major efforts to securing its control over the land. In this framework Israel and its indigenous Bedouin citizens have been entangled in a protracted legal and territorial battle over traditional tribal land in the Negev region. This is the most intense and extensive land dispute currently taking place within Israel proper (i.e., excluding the post-1967 occupied territories). The heart of this land dispute lies in opposing conceptualizations of ownership, possession, and land use. On the one hand, the Bedouins claim land rights based on customary and official laws, possession and cultivation of the land for generations, and tax payments to previous regimes, which, in their view, should provide proof of ownership and be integrated into contemporary land laws. On the other hand, Israel, drawing on highly formalist and, in our eyes, distorted legal interpretations of Ottoman and British statutes, views all Bedouins residing in their villages as illegal trespassers invading state land. The Bedouins are often portrayed by the state as intrinsically nomadic invaders from other regions who survived well into the twentieth century as pastoralists and plunderers. As such, they did not acquire any rights to Negev lands. Their “illegality” is implicated in a number of situations, including criminalization, house demolition, and the treatment of their habitation areas as empty, thus deserving no state protection in times of war.

Several maps illustrate some of this dispute. Map 1 illustrates the location of the Bedouin living area in relation to the entire Israel/Palestine region and marks the siyaj (sayag in Hebrew, literally “fenced”) region, into which all Bedouins were concentrated after the 1948 war. Map 2 zooms in on the Bedouin regions around Beersheba, including our main focus of the ‘Araqib area, which lies some 10 kilometers north of Beersheba. It shows the spatial pattern of Bedouin informal (mostly unrecognized) localities, where more than 100,000 Bedouins resided in 2016, and the seven planned towns into which the state attempted to urbanize the entire indigenous population of the region in the past. Map 2 zooms in on the land claims of the tribes in and around ‘Araqib. Map 3 provides further necessary background by showing the extent of Bedouin land claims and current “unrecognized” development in the Beersheba metropolitan region.

As will become clear in the following chapters, contrary to state claims, Bedouin Arabs have resided in the Negev/Naqab region of southern Israel/Palestine for centuries before the establishment of Israel, subsisting on a mixed economy that combined pastoralism and agriculture.

Map 1. Location of Bedouins and the siyaj region in Israel/Palestine. Source: adapted and updated from Avinoam Meir, As Nomadism Ends: The Israeli Bedouin of the Negev (Boulder, CO: Westview Press, 1997), 114.

Map 2. Location and land claims of al-‘Uqbi in ‘Araqib and Zehilika. Source: al-‘Uqbi archives and the Israeli Land Authority.

Map 3. Bedouin land claims and the unrecognized Bedouin localities. Source: Regional Council of the Unrecognized Villages, aerial photograph 2015; and Israel Land Authority.

A short caveat on the term Negev is in order here. Although Negev is the standard geographic term used in the study of southern Israel/Palestine, it has not been constituted as a defined geographic unit or as a separate administrative unit under any of the last three regimes that exercised power over the area (Ottoman, British, and Israeli). Negev is a biblical term that refers to a smaller area of land than what is considered the Negev region today. Further, in its earlier English version, the “Negeb” (with a b) used to refer mainly to a climatic unit of a desert region and not to a geographic or politically defined territory. During Ottoman rule, part of the region was under the administration of the Gaza Subdistrict, which was in turn part of the Jerusalem Governorate. Later, in 1900, the Ottomans established the Bir al-Sabia’ kaza (Beersheba Subdistrict), which came to include large parts of the region’s territory. The British largely maintained the administrative division but stretched it all the way to the Dead Sea. This meant that the Beersheba Subdistrict came to constitute an area of 12.5 million dunums of British Palestine, constituting nearly half the land mass (a dunum is about one-fourth of an acre). The region was generally referred to by its Arab inhabitants as the Bir al-Sabia or Bilad Ghazza. However, today Palestinian Arabs refer to it as the Naqab. In this book we continue to refer to the region as the Negev/Naqab, as it is currently known to the locals and to others.9

Throughout the past several centuries, the Bedouins, like other indigenous peoples, developed a distinct land regime that regulates their settlement system and self-rule over property, including ownership, division, sale, and conflict resolution. Since the 1970s, despite their partial urbanization and incorporation into the Jewish state, the Bedouins have continued to hold to many aspects of their traditional culture, customary law, and social organizations. Their settlement system, based on traditional patterns of landownership, is still in place in the north, northeastern, and central Negev, where the unrecognized localities exist. In other parts of the Negev, Israel has evicted and destroyed most Bedouin settlements.

Notes

1. In Hebrew this operation was called mivtza’ tzuk eitan, literally “Operation Strong Cliff.”

2. As we explain later, in our context the term unrecognized localities refers to Bedouin settlements that, according to the official Israeli position, are located on public land and were built without permits. These localities do not appear in official maps or plans.

3. Elisheva Goldberg, “Israel’s Bedouin: Caught Between the Iron Dome and Hamas,” The Atlantic, August 1, 2014, tinyurl.com/kzkr3pp (accessed June 3, 2017).

4. Chaim Levinson, Ido Efrati, Jack Khoury, and Revital Hovel, “Man Killed in Rocket Strike on Negev Bedouin Community,” Haaretz, July 19, 2014, tinyurl.com/mjvjm6v (accessed June 6, 2017).

5. Levinson et al., “Man Killed.”

6. Goldberg, “Israel’s Bedouin.”

7. H.C.J. 5019/14 Abu Afash v. GOC, Home Front Command, Petition for Temporary Injunction (July 16, 2014), par. 7, 11 (Hebrew) (copy with authors), and Defendant’s Response (August 17, 2014), par. 17. See also Revital Hovel, “High Court Rejects Petition Seeking Rocket Shelters for Bedouin Villages Now,” Haaretz, July 21, 2014, tinyurl.com/zrzqa2u (accessed June 6, 2017).

8. On terra nullius, see Sections 1.2 and 1.5; on legal geography, see Section 1.1.

9. See Ahmad Amara, “The ‘Negev’ Redefined,” paper presented at the New Directions in Palestinian Studies Workshop, Brown University, March 2014 (copy with authors). For the historical geography of the region, see Chapter 5.

Acknowledgments

This book project spans over two decades of research and activist work. During this period, we collaborated with hundreds of people, and it is impossible to mention each by name. However, we want to extend a warm acknowledgment to each and every one for their help, expertise, courage, and humanity in the uphill battle for Bedouin rights and recognition.

We thank especially the Bedouin families who patiently taught us so much of what we know about their indigenous culture and history; they opened their cherished and sacred archives to us and gave invaluable support to our research and activism. Most notably we thank the al-‘Uqbi family, especially the tireless Nuri Hassan al-‘Uqbi, who has never stopped seeking justice for his community; and and to Sayach al-Touri Abu-Mudighim, Awad Abu-Freih and their families. These people, as well as all other communities living without state recognition, provide constant inspiration about dignity and struggle under extreme difficulties.

From Alexandre (Sandy) Kedar. I would like to thank and acknowledge the help, assistance, and encouragement received from my family, particularly my wife, Claudia, who read, commented, supported, and was there for me in the long journey of writing this book. No words can express my love for her. Claudia’s love, intelligence, perceptiveness, and ongoing support have made this book possible.

I cannot leave out my wonderful children, Tomer, Michal, and Yoav, whom I love so much and who through the years have heard, endured, and commented on the manuscript.

My 93-year-old father, Paul, and 90-year-old mother, Ruthie, read the manuscript and commented on it; and their continuing intellectual curiosity and ongoing commitment to human rights in Israel has inspired me.

I also thank my siblings, Daniko, Dondon, and Tamar, and their partners; my co-authors, Oren Yiftachel and Ahmad Amara, for their excellent work and commitment; Shmulik David and Eitan Michaeli from SHATIL; and attorney Michael Sfard and his team for their extraordinary commitment and work.

Many friends and colleagues commented on the manuscript and advised me, including Rinat Azrieli, Gad Barzilai, Orna Ben-Naftali, Brenna Bhandar, Aeyal Gross, Tamar Hostovsky-Brandes, Jonathan Yovel, Ilan Saban, Michal Saliternik, Steve Ratner, and Amnon Reichman.

Last, I thank my excellent research assistants: Maayan Azugi, Lior Fein, Lior Frank, Lilach Grimberg, Ronen Magril, Elad Moretzky, Irena Nunteko, Uri Sabah, and Jacki Silbermann.

From Ahmad Amara. I would like to thank the many people who offered their support, wisdom, help, and company during the work on this book. I benefited greatly from these gifts, and I am deeply indebted to them. Their presence and contributions made this book possible. I owe much to my PhD advisers, Ronald Zweig, Zachary Lockman, and Lauren Benton, whose guidance, support, and comments enhanced the quality of my research and expanded my horizons. I also thank my PhD committee members, Beshara Doumani and Eugene Rogan, whose bright scholarship and mentorship accompanied this research project. My special thanks also go to my Turkish and Ottoman language teachers, Sibel Erol, Hasan Karataş, and Züleyha Çolak. I owe much as well to my friend and hocam, Abdullah Uğur.

I am also thankful to the staff at the following archives: the British National Archives; the Middle East Center Archives at St. Anthony’s College at Oxford University; the Israel State Archives; the Central Zionist Archives; and the Başbakanlık Archives in Istanbul.

My broader research, some of which is in this book, was made possible by the support of New York University (NYU), through a MacCracken Fellowship; the Social Science Research Council, through an International Dissertation Research Fellowship; the NYU Global Research Initiative; and an NYU GSAS Dean’s Dissertation Award; as well as the summer research support of the History Department, the Hebrew and Judaic Studies Department, and the Taub Center at NYU, and the Palestinian American Research Center and the Center for the Study of Multiculturalism and Diversity of the Hebrew University.

Friends and colleagues were always there to exchange and discuss ideas, to read drafts of my work, and to generously extend their support and honest critiques. Thanks to Munir Fakhr al-Din, Yoav Alon, Atilla Aytekin, Nora Barakat, Shay Hazkani, Ibrahim Kalkan, Alaa Khalaylih, Fred Meiton, Mansour Nasasra, Sophie Richter-Devroe, Avi Rubin, Lena Salaymih, Helga Tawil Souri, Salim Tamari, Omar Tesdell, Alex Winder, and especially my friend Samuel Dolbee. Special thanks for the great and long journey throughout the writing go to my friends and team buddies Oren Yiftachel and Sandy Kedar.

Last but not least, my utmost appreciation goes to my family, who provided unlimited support: my parents, Mohammad and Nazima; my brothers, Said Shehadeh, Ziad Omar, and Shimon Zafrani; my other half, Sandra, for bearing with me through my work and studies; and Zaina and Yazan, who gave me the energy and the will.

From Oren Yiftachel. I would like to acknowledge the great assistance received from Amanda Yiftachel, partner and editor, for her personal support, professional persistence, and a loving hug when it was most needed. I also thank Naomi Liel, Asher, Ella, and Cobber Yiftachel for their patience and understanding of their always-too-busy father.

Sandy Kedar and Ahmad Amara showed that in genuine teamwork, the total is always greater than the sum of its parts, and I thank the many colleagues and researchers who offered their generous support: Prof. Aref Abu-Rabia, advocate Rawia Abu-Rabia, Dr. Safa Abu-Rabia, Dr. Sarab Abu-Rabia, Prof. Ismael Abu-Saad, Dr. Salman Abu-Sitta, Netta ‘Amar-Schiff, Eli Atzmon, Prof. Ghazi Falah, Prof. Gary Field, Dr. Yuval Karplus, Prof. Avinoam Meir, Dr. Mansour Nasasra, Dr. Batya Roded, Dr. Avi Rubin, Prof. Ilan Saban, and Prof. Eyal Weizman. My gratitude is extended also to advocate Michael Sfard for his persistence, wisdom, legal brilliance, and highest values of morality and justice. Thanks also go to the great team of research assistants, who had to deal with so many tedious tasks: Nufar Avni, Neria Greniman, Hagit Levin, Rani Mandelbaum, Amir Meltzer, Shai Moses, Riham Raghe, and Ido Rosenblum. I thank Roni Livnon-Bluestein and Neria Greniman for excellent cartographic work.

All three of us would like to acknowledge the contribution of the Israel Science Foundation for its generous support of the research through Grant 920/13 and a 2016 workshop grant so that we could present a draft of this book. Our special gratitude is extended to the SUP editorial team, particularly Nora Spiegel, Anne Fuzellier Jain, Mimi Braverman and to the anonymous referees, whose comments helped us greatly in finalizing the text. Particular thanks to Michelle Lipinski for her tireless persistence and guidance which were second to none.


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