Reclaiming the Desert

As bulldozers come again and again to destroy the Bedouin settlement of Arakib, a trial over land rights in the Negev is underway in Be'er Sheva District Court. Do the Bedouin really own their lands? Two expert witnesses have come to different conclusions

The face of Mohammed Abu Mudigham, 66, is brown and furrowed. At high noon the sun and the wind assault his tent. He sits on a plastic chair in front of the tent in the demolished village of Arakib, waiting patiently for the Police Special Patrol Unit, Yasam, to come destroy the flimsy tent, for the third time in two weeks.

Arakab Reuters  August 10, 2010.
Reuters

The troops duly arrive with bulldozers and overturn the tents of Abu Mudigham and his neighbors. Even before they came, the village lay in ruins. Skeletons of buildings, the remains of wooden shacks, twisted metal and tin siding are scattered all around like corpses.

Abu Mudigham and the Bedouin of Arakib are considered trespassers, accused of settling on state-owned land. However, according to Abu Mudigham, his forefathers arrived here about 650 years ago. "They came from Yemen and Saudi Arabia," he says. "Thus it is related in our family." Later, they bought the land. "We bought these lands from the Al-Huzeil tribe," he says. "They were a strong tribe, thieves and criminals, and they controlled the area. Another part of my family bought the lands from the Al-Okbi tribe approximately 200 years ago. My father's grandfather bought the land."

In 2006, claims were filed in court for 1,350 dunams (338 acres ) of land in the name of the late Suleiman al-Okbi and his heirs. These cases are being heard simultaneously by three judges. The biggest claim, involving about 800 dunams - three plots in the village of Arakib and two more in the Zuheilika area - is being heard before Judge Sarah Dovrat in the Be'er Sheva District Court. The claimants, headed by Nuri el-Okbi, are represented by attorney Michael Sfard. "I took this case," Sfard explains, "because it is a classic case of the state using its overwhelming force, based on 150-year-old Ottoman laws which it interprets creatively, in order to justify dispossession and infringe the few rights of a weakened, trampled, discriminated community."

Creative means

The driving force behind the suit to reclaim the Bedouin lands is Nuri el-Okbi. He is a 68-year-old garage mechanic who was educated in Kibbutz Evron, studied auto mechanics and worked in two kibbutzim in the Negev, Shoval and Lahav, before opening a garage of his own in Lod. At the end of the 1970s, when he, like many of his Bedouin friends, realized that submissive cooperation with the state would not be productive and that there was no chance his claims to land would be honored, he established the Association for the Support and Protection of Bedouin Rights. He has since worked by various means, some of them quite creative, to stir attention and compel the state to address the protracted dispute over Bedouin lands in the Negev.

"There are 13 million dunams of land in the Negev," El-Okbi says. "Of that, the Bedouin claimed 800,000 dunams. As of now, the state has reached agreements with the Bedouin for 200,000 dunams, so that less than 600,000 dunams remain in dispute. But the state is creating a false impression and frightening the Israelis [i.e., Israeli Jews] into believing that the Bedouin are trying to seize control of the whole Negev. If the state will one day have to expropriate land for true public purposes, it can always do so, and justifiably. For example, a section of my land was taken for a road that connects Lehavim to Eshel Hanasi, and I did not ask the state for anything and did not interfere with the building of the road. But I will not agree to dispossession for its own sake and for nationalist reasons."

The bureaucratic history of the Bedouin lands begins with the Turks in the middle of the 19th century. As part of the reforms forced on them by the European powers, the Ottomans started to register land as an asset. El-Okbi: "In 1858, a land law was enacted that later was given the name of the Ottoman Land Code. The Turks divided the land into various categories: private, Waqf [dedicated to a religious purpose], state-owned, public and mawat, which was uncultivated wasteland located 1.5 miles, or the distance of a muezzin's call, from a settled place. The Ottoman rulers of Palestine called on the Bedouin to register ownership of their land under the law, particularly after 1900, when Be'er Sheva was established as a district capital with governmental offices and officials.

"The majority of the Bedouin did not heed this call and did not register their land. The British examined the rights of the Bedouin, and in 1921 and again in 1928 allowed mawat lands to be revived. They told the Bedouin to document their land for three years, to show the land regulation official that it was cultivated, and then they would be able to register it in their name."

But because this entailed payment of taxes, and because registering property in someone's name is an alien concept to the Bedouin - they consider Allah the true owner of all property - they showed little inclination to register land, and continued to pay taxes in a centralized way, through the sheikhs.

Among themselves, the Bedouin registered their plots and carried out land transactions by means of the sanad, a traditional document that determines the exact place and size of a land allotment. Every Bedouin recognizes and respects the sanad and knows exactly where his land lies - from which stone to which bush - and where his brother's land begins and ends. This arrangement, which has worked for hundreds of years, recalls in its essence the Jewish land registry records that were unrecognized in the Ottoman period but which the British accepted as legal documents in every respect.

El-Okbi maintains that his family paid taxes on its land both to the British and to the State of Israel. "For example," he says, "we have documents from September 22, 1937, stating that my grandfather paid taxes on that land. Also in the early period of the State of Israel, in October 1950, my father paid 113 pounds and 139 mils in taxes to the military governor for planting summer crops. That was worth 20 camels at the time."

According to El-Okbi, a tribal court that was recognized by the state operated in his father's house, a stone structure whose ruins still exist. But the state was unimpressed by El-Okbi's documents, and in the fall of 1951 informed the tribe that its land was being requisitioned by the army for six months. They were evacuated eastward, to the Hora area, near Be'er Sheva. The same story is told by many Bedouin in the Negev.

Since then, nothing has happened. Everyone who tried to return to his land was removed from it and accused of trespassing. In the 1970s, the state encouraged the Bedouin to submit claims for their lands to the land regulation unit in the Justice Ministry. Members of the Al-Okbi tribe, like others, submitted claims - which have since been gathering dust in interdepartmental filing cabinets.

"We were expelled by deceit from our land, under the auspices of the military government," El-Okbi says. "That is theft. We are citizens of the State of Israel, inhabitants of this country for generations." Since then, the members of the Al-Okbi tribe and other Bedouin have been living in a state of suspended animation. The state has amended most of the Turkish and British laws and adapted them to its needs, but in the case of the Bedouin and their lands, one Israeli government after another has effectively decided to do nothing, or at most to set up a committee, which is the same as doing nothing, but looks better.

In 2005, Nuri el-Okbi asked the land regulator to register his land in his name. In response, the state sued him for invading mawat land and expropriated areas. The land regulator referred the resulting legal entanglement to the Be'er Sheva District Court. Four years ago, El-Okbi established a one-person settlement on his land. With the aid of human rights activists in the Negev he erected a tent, moved in and made it his headquarters for managing his affairs and the wider Bedouin issues. Every few weeks, a large number of police arrive at his hill with heavy machinery, destroy the tent, remove him from the site by force and take him into detention. When he is released, he returns to the hill and erects a new tent.

In February of this year he was arrested for an entire week. "The incarceration was intolerable," he says. "People are treated like animals. I was brought to court, charged with 40 criminal counts of invasion, uprooting trees and violations of an order. I was released on bail, conditionally, and ordered to stay away from Arakib. I must now stay with my brothers, near Shoket Junction [north of Be'er Sheva], the place to which we were taken in 1951. Now they are riding high; they got what they wanted. I cannot protest and I cannot go to Arakib in order to help the suffering people there."

Expert witnesses

The witness stage in El-Okbi's trial ended two months ago. The Bedouin brought as an expert witness Prof. Oren Yiftachel, a political geographer and town planner from Ben-Gurion University in Be'er Sheva. The state is putting forward two contradictory arguments: on the one hand that the land was mawat land, and on the other that it has been expropriated. Logic says that if it was mawat it did not have to be expropriated, and if it was expropriated, perhaps it was not mawat. The main witness for the defense is Prof. Ruth Kark, an expert in historical geography and the Middle East from the Hebrew University of Jerusalem. The summations are scheduled for September 30. In the meantime, the Bedouin claimants have submitted a special request to call another witness on their behalf, Dr. Yitzhak (Clinton ) Bailey, an expert in Bedouin law and ways of life and the author of "Bedouin Law from Sinai and the Negev" (Yale University Press, 2009 ). In the meantime, Kark and Yiftachel, two learned scholars, have looked at the same maps, read the same 19th-century books by scholars and travelers to Palestine, but each offers a completely different interpretation of the material. Kark maintains that the Bedouin have no attachment to the land and that it is impossible to prove they ever did; Yiftachel says it is as clear as day that the Bedouin have owned the land for untold generations.

Ruth Kark took up the study of geography in order to travel the world. After undergraduate work in geography and Middle Eastern studies, she got a master's degree in historical geography and wrote a doctoral thesis on Jerusalem and Jaffa at the end of the Ottoman period. Since then she has dealt primarily with concepts of land and land ownership in traditional cultures, such as the indigenous peoples of North America, the Aborigines of Australia and the Maori of New Zealand.

"I created a comparative model for conceptions of land in different traditional societies around the world," she says. "I have been studying land conceptions and land settlement in the Land of Israel during the Ottoman, Mandate and early Israeli period for more than 40 years."

Oren Yiftachel did his undergraduate and master's degrees in Perth, Australia, majoring in urban studies with reference to geography, political science and economics. He began his Ph.D. thesis - an analysis of the judaization of the Galilee - in Australia and completed it at the Technion in Haifa. In the early 1990s, Prof. Avishay Braverman, who was then president of Ben-Gurion University, issued a tender for a young academic to join the university's faculty and Yiftachel applied and won. Since then he has been involved in social issues in the Negev, such as public housing in what are known as "development towns," built in the 1950s to house new immigrants; social services in Be'er Sheva and Mizrahi identity (referring to Jews of Middle Eastern and North African origin ).

"I am an involved researcher," he says. "The human perspective always interests me. Gradually I got into the Bedouin issue. I believe that knowledge has to be used not only for academic publications, but also translated into something that can improve the society. The eros that moves me is the passion for change, as Herbert Marcuse said."

Yiftachel is co-chair of B'Tselem, which monitors human rights in the occupied territories, and an adviser to the regional council of unrecognized (by the state ) Bedouin villages. He is testifying pro bono in the El-Okbi trial.

Prof. Kark does not support a change in the situation. In other countries, too, she says, the Bedouin get no special treatment. "For the past five-six years I have been researching the subject of Bedouin land in the Middle East, examining how other countries address the question of their lands."

What did you discover?

"According to this research there are two groups of countries. Those whose leaders are of Bedouin origin, such as Saudi Arabia, which treat the Bedouin slightly more tolerantly; and countries like Syria, which show no great tolerance for them. There is much talk today in the international community about indigenous peoples and their rights. Australia, New Zealand and Canada are mentioned in this regard. But in none of those countries do the natives have private land rights of the kind that some people want to see here. They have collective rights of fishing, hunting, use of reservations for all kinds of needs.

"But the Bedouin cannot be viewed as indigenous," Kark continues, "because they have not been in the Negev since ancient times. The majority of the Bedouin have been in this country for less than 200 years. They do not originate in the Negev. The Bedouin are not defined as indigenous peoples in the other Middle Eastern countries, either, so why should it be different only in Israel? Why is it that only in Israel all the human rights fighters and activists claim that they are indigenous? There is something terribly anti-Israeli about this."

Agendas and narratives

In Australia, Yiftachel says, the rights of the aboriginal peoples were recognized in 1992. "The federal High Court recognized that there was ownership of land by the indigenous peoples, even though the registration was not in the modern style," he notes. "Instead, it was based on a traditional oral culture and on traditional mechanisms of land division. Reconciliation committees were established which affirmed traditional claims to land."

Yiftachel has written or edited 10 books and published about 120 scholarly articles. At the same time, he makes no secret of his agenda or of his politics. Kark has written two books and edited one, published many scholarly articles, has taken part in international scientific conferences and is often invited to provide an expert opinion in court hearings about land disputes. She has no agenda, she says, and reveals, surprisingly, that she is actually from the left, politically.

"I am from Hashomer Hatza'ir [a left-wing youth movement] and come from a background of Mapam [a now defunct leftist party] and Meretz," Kark says. "There is no connection between the opinions I give in court and my political views. There are some researchers who, along with their doctoral students, begin by placing the goal under a spotlight and then of course they find it easily and adjust their court testimonies to their agenda. Some of them have forged a local and international career on the basis of that agenda and by badmouthing Israel."

To whom are you referring?

"That is not important. The fashion today is to talk about different narratives and about political approaches. It started with researchers and social activists in the 1990s. In many cases, though, there is no true historical basis for it. In my case, I look at historical materials, examine them one by one and do not say in advance that 'I have an opinion and I will prove its validity no matter what.' There are some people who think that if they say a hundred times that there were Bedouin settlements in the Negev in the 19th century, it will all come true and turn into reality.

"Yiftachel and his lawyer [Michael Sfard]," she continues, "brought documents from Britain proving Bedouin ownership of the land. That's just talk. They say that Churchill, when he visited the country, said, 'The rights of the Bedouin will be preserved.' Does that mean that all the land in the Negev is theirs? How did he reach that conclusion on the basis of what Churchill said? They said in court that even Yosef Braslavsky [1896-1972, a pioneering geographer of the Land of Israel who wrote a book about the Negev] wrote about the Zuheilika ruins in the 1930s, which, they claim, proves that there was a settlement there. In that way the end becomes the means, and they are ready to arrive not only at inaccuracies but at genuine lies."

Such talk rankles Sfard. "There is an irony that cannot be ignored in the state's argument," he says. "In the 21st century, Zionism is being compelled to defend itself against a charge of colonialism - such as the redemption of the Negev lands - by relying on travel logs of European missionaries of the 19th century. They were colonialists who viewed the Arabs as 'savages' and came to the Holy Land in search of biblical sites."

Yiftachel: "I never said 'all the land in the Negev.' That is demagogy. We are talking about barely 3 percent of the Negev. In many places, where the word hirbeh [ruin] appears, there was formerly a settlement. Today we know from aerial photographs that dozens of such hirbehs in the Negev were settlements. People settled on a hill where a hirbeh and an old well existed and turned it into a settlement."

As for the British documents, Yiftachel says, "There are many British documents that recognize the traditional ownership of the land by the Bedouin - every serious researcher will say that. In 1935, for example, [Moshe] Sharett and [David] Ben-Gurion, acting in the name of the Jewish Agency, applied to the Mandate government to receive the Bedouin lands in the Negev, arguing that they were mawat. The Mandate authorities replied that the cultivated land in the Be'er Sheva area is considered to belong to the Bedouin tribes from generations past."

According to Kark, many Bedouin exploited the weakness of the declining Ottoman Empire and arrived in the Negev at the end of the 18th century and mostly in the 19th, and not as they claim, hundreds of years ago. "The thousands of documents and maps that I examined closely show that the Ottoman regime in this period was weakened and that a vacuum was created with an available reserve of territories which could be encroached upon without the authorities intervening overly much," she says. "They came to the Negev and took control of land by force of arms.

"In the 1930s, Arif al-Arif, the governor of the Be'er Sheva district in the Mandate period and a Palestinian historian, wrote two books about the Negev and about the Bedouin tribes in the Be'er Sheva district. He wrote that they fought endlessly among themselves and against the government, and also describes a situation of land incursions: 'A Bedouin arrives at the site, sticks his sword in the ground and says: "It's mine."' The Bedouin made a living mainly from theft and from collecting protection money from Palestinian villagers. Until the end of the 19th century they were all nomads and fighters. They did not become semi-nomadic until the 20th century. And until the end of the Mandate period there was hardly any permanent settlement [by Bedouin]. This holds equally for the Arakib area. Accordingly, they are considered interlopers. If an ordinary citizen builds a pergola or a balcony, the police come and he is compelled to demolish it and pay a fine. Yet look what's happening here."

What about Jewish settlers who took over land that is not theirs?

"If it's not legal, it's not legal."

Selective quotations

Yiftachel brought a quotation of his own from Arif al-Arif to the court: "At the end of 'The History of Be'er Sheva and its Tribes,' on page 100, he writes that 'the Al-Okbi tribe is now settled at Zuheilika.' That contradicts Kark's argument that Zuheilika was an ancient hirbeh." As for Bedouin nomadism, Yiftachel says, drawing on many researchers, that modernization processes that began about 500 years ago, brought about partial permanent settlement by Bedouin on the land and the allocation of clear territories, thus transforming the Bedouin into semi-nomads.

"In the census of 1596, for example, the Turks reported about mizraat, a concentration of farms and crops without defined villages, which were the living zones of the Bedouin tribes," Yiftachel says. "A British survey of 1945 found some 3,600 built homes in the Negev and another 8,700 tents. That attests to the strength of the fixed-settlement process. The majority of the tribes had dira, a living zone, homes, pastureland and agricultural crops. Even before Zionism the Bedouin had a well- developed land system that was geared to confer rights. So many people cannot be lying. They lived in those places for generations untold, and if for some technical reason they did not register their lands, I as a geographer or a planner am not persuaded by that. What persuades me is social justice. Just as there is place for Moshav Nevatim or for Giv'ot Bar [two Jewish developments in the Negev], there is also place for the lands of El-Okbi."

The war of the experts grew very heated and passionate in court, inducing Judge Dovrat, who displayed a striking command of the details and nuances, to question the two sides herself. For example, in Prof. Kark's testimony on May 13, inconsistencies were revealed between what she told the court and what she wrote in a book published in 1974 on the history of Jewish pioneering settlement in the Negev up to 1948. In her book, Kark stated that there was no registration of land in the Negev during the period of Turkish rule in Palestine: "Land ownership relied on a tradition that was recorded in deftars, notebooks which were held by the sheikhs and mukhtars [headmen]. Every juridical act relating to land was recorded in the notebooks, which the Bedouin treated with respect and trust."

In court, she retracted this and said she had changed her view after examining new archival material. At one point, Judge Dovrat seemed clearly dissatisfied with Kark and the contradictions. "None of the researchers Kark cited ever visited the plots of land relevant to the case," Yiftachel says. "The only one was Musil [Alois Musil, 1868-1944, a Czech explorer who visited Palestine several times], and as a researcher I was saddened, because this is very problematic. She [Kark] relates that Musil camped in the Zuheilika area and found nothing, but I open Musil and read that at Zuheilika he met the Al-Okbi tribe. She says she is well acquainted with Seetzen [Ulrich Jasper Seetzen, 1767-1811, a German explorer of Arabia and Palestine]. We started to read Seetzen - my mother is a German speaker - and there we found that he reached Al-Okbi and found a very large settlement, 70 tents, exactly where Zuheilika and Arakib are located today - but she chose to say nothing about that. So we started to examine all these travel diaries and discovered inconsistencies and inaccuracies and distortions in their reports."

Yiftachel is referring to two travel books in particular. One is by William McClure Thomson, an American clergyman and missionary who visited Syria and Palestine twice in the mid-19th century. In 1859, he summed up his impressions in a book entitled "The Land and the Book," a personal travel log in the spirit of the Old Testament, with naive drawings of the country by his son. He began his journey in Beirut, after 20 years of religious yearning for the promised Holy Land. He had dreamt of Nazareth, Capernaum and Ginossaur, and at the start of the book promises himself that he will tour the land from Dan to Be'er Sheva and make it his. Thomson's book was aimed at Christian believers who wished to connect to places where Joshua and Samson fought, Saul and David ruled and the voice of the prophet Samuel rang out.

A few years after Thomson, in 1883, a similar journey was undertaken by an Irish geologist, Edward Hull. He chose to enter Palestine from Egypt, through Sinai. Hull was especially intrigued by the Dead Sea and the Jordan Rift Valley. He was sent on the journey by the Palestine Exploration Society, of which he was a member, and brought along a number of people, including his son, who was a physician and a photographer. "Everything the travelers wrote, they certainly saw," says attorney Sfard. "On the other hand, it's not certain that they wrote everything they saw."

Yiftachel thinks Kark gave Thomson a different reading from his. "She [Kark] cites a lengthy passage form Thomson, forgetting the last three lines, which are the most important, and speak of the continued working of the land. 'Neither is the country anything like what we mean by virgin soil in America. It has been ploughed for thousands of years and probably very much as it is at present,' Thomson wrote. When the judge heard that, she snapped to life and started to ask questions."

Kark also quotes Edward Hull, describing his journey along the Spice Route until he reaches an arid, unsettled area east of Be'er Sheva. "And I turn to the next page," Yiftachel says, "and discover that he went from Be'er Sheva to Gaza, passing very close to Zuheilika, where, he writes, the land is fertile and very cultivated and the people there produce much more than they need. 'In fact,' he writes, 'large quantities of agricultural produce raised in this part of Palestine are annually exported from Jaffa and other towns; and as we approach the western seaboard the cultivation improves, till about Gaza, El Mejdel [present-day Ashkelon] and Jaffa it attains a degree of excellence scarcely surpassed by that of Italy, France, or England.'" Prof. Kark, maybe you are relying on travelers who came to this country with European conceptions about villages and settlements, and this is why they did not mention seeing settlements in the Negev?

"They were not just ordinary travelers or pilgrims but very serious scholars, whose studies we continue to draw on. I examined dozens of sources in the course of time, but they [the claimants] are trying to make a mishmash out of all kinds of sources from all kinds of periods. Al-Okbi was not in the places they claim, but they forgot to check that. You see that if you look at all the maps."

Did you contradict yourself in your testimony?

"I don't remember exactly what I wrote, but they took selective passages and did not mention the sections that were inconvenient for them. Besides, I told them I was a young student at the time and a person has the right to develop a little since then."