“This court is not the address for creating chaos,” stated Justice Elyakim Rubinstein last week in rejecting the appeal of Bedouin residents of the unrecognized Negev settlement of Umm al-Hiran. In the ruling, Rubinstein notes that the residents – who are slated to be evicted, and whose houses are to be demolished to make way for the construction of the Jewish town of Hiran – have been living in this place for 60 years, after moving to the Nahal Yatir area in 1956 at the orders of the military governor, and that the eviction and demolition of the 50 or so structures they built will affect the lives of hundreds of people. However, he still believes that the eviction is reasonable and proportional, in light of the fact that the lands are owned by the state and the buildings were erected without permits.
The Umm al-Hiran residents argued that they were the victims of discrimination and that their property rights were being infringed, but Rubinstein ruled that they had not acquired ownership rights to the place and so no infringement of property rights occurred.
His ruling ignores the built-in injustice in the property laws, in which the Bedouin’s rights were very limited: Unlike the Jews who obtained property rights to land on which they settled, the Bedouin’s rights to land on which they settled at the orders of the state were never formalized. And in basing his ruling on the Bedouin having built without permits, Rubinstein is also disregarding the fact that they became caught in this situation because of the actions of the state, which pushed them into a settlement that it did not officially recognize.
Rubinstein rejected the claims on a procedural basis: He said the planning decisions should be challenged in another type of proceeding, and not by means of an appeal against the eviction – this was the chaos he warned against. But the bottom line is that an Arab settlement is being evicted in order to build a Jewish one – rank discrimination hiding behind mountains of formalities.
The claims of unequal treatment were rejected on the grounds that there is nothing to prevent the Bedouin from living in the planned new town. Rubinstein argued that just because the plans call for a mikveh (Jewish ritual bath) and a synagogue, this should not prevent Bedouin from living there.
But anyone who thinks a religious Jewish community whose ideology centers on this land belonging to the Jews could also include Bedouin residents is dreaming.
In this sense, the ruling reveals the double-edged sword inherent in the High Court of Justice’s Katzir ruling, which prohibited the establishment of towns for Jews only: Now the state can cite this ruling and argue that the locale is open to all, when in reality it is clear for whom it is intended.
Justice Daphne Barak-Erez, in a dissenting opinion, wrote that the state should be obliged to consider offering the residents an alternative lot in the new community of Hiran. She cites the fact that they were not considered “trespassers,” and says the compensation formula and the eviction ought to be reconsidered. But Rubinstein, joined by Justice Neal Hendel, felt this could cause a delay in the construction of Hiran and that the compensation options already offered to the Bedouin were sufficient. He sufficed with a non-binding recommendation to the state to consider giving the evicted residents special benefits in the marketing tenders for Hiran.
A few dozen kilometers away, in the Palestinian village of Sussia, a similar scenario occurred. Last Monday, the High Court declined to issue a restraining order that would prevent the demolition of the village and the eviction of its residents. Thus, on both sides of the Green Line, the High Court has given the stamp of approval to dispossession, eviction and the demolition of Arab communities for the sake of Jewish ones. Just as long as it doesn’t give rise to chaos. Order must be preserved.
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