The terra nullius doctrine was used during the colonial era to define lands with no sovereignty or property rights as no-man’s land. It provided Europeans with a legal umbrella for wresting control over lands and peoples in the four corners of the earth for hundreds of years. This doctrine, now annulled, maintained among other things that the lands of native populations in America, Africa, Asia and Australia, which were not formally registered or managed in a “modern” fashion, were deemed “empty” of rights.
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This approach had many versions, depending on the rulers, but the bottom line was identical: Whatever preceded the European invasion – history, culture, agriculture and traditional law – was obliterated. The main tool allowing Europeans to gain control, besides violence, was the law. The invader, who was also the legislator, ensured that grabbing lands from natives would always remain under a deceptive and manipulative veil of “legality.”
Terra nullius, as a way of thinking and a “family” of legal methods, operated in the world well into the 20th century, when counter legislation supporting human rights and recognition of indigenous peoples emerged. The new wave gradually recognized that colonized cultures and peoples also had their own legitimate systems of law, property and governance.
In the 1992 Mabo case, the Australian Supreme Court formally overturned the terra nullius doctrine, and many countries followed suit. The 2007 UN Declaration on the Rights of Indigenous Peoples outlines the new international norms, which respect customary law and forbid the appropriation of native land and resources, or forced transfer of native communities.
Israel’s controversial proposed law, known as the “Regularization Bill,” which aims to legalize unauthorized West Bank Jewish clusters (“outposts”) passed its first reading last week. This proposed legislation can join the ranks of global terra nullius legislation with honor. It may be a century late, but in the name of invasion and colonial settlement – in this case, Jewish – this law would erase the validity of previous ownership systems in place for centuries. As settler leaders have reiterated (“We stop apologizing!”), nothing would stop them from violating international laws, and undercutting ethics and justice.
This is a classic colonialist position. Just as colonial settlers imported their laws from European capitals, so too do residents of Amona (indeed, all Jewish settlers) seek to import their laws from the occupying state. It should be noted that according to international law, no state has the authority to legislate for territories beyond its international borders or declare lands in such territories as belonging to that state.
That does not mean, of course, that there are not millions of acres of Jewish and Israeli lands that were purchased or registered properly, or that the Jewish right for self-determination is threatened. Not at all. This realization puts in starker light the injustice of grabbing land through legal manipulations, as such theft is not at all needed for the Jewish state.
Yet, it is also important not to exaggerate the importance of the bill currently under discussion because it only adds an additional, more brutal layer, to the system that began 70 years ago, by which Palestinian lands have been transferred to Jews by means that “legalize” state dispossession. Implementation of the terra nullius approach commenced in 1948 and picked up steam after 1967 – when personal dispossession became collective dispossession, preventing the realization of Palestinian statehood. It is important to remember in the current controversy that the state has for 70 years been erasing, via twisted legal and security-related moves, most previous legitimate Palestinian rights.
That being the case, the so-called “fierce disagreement” reported between people putatively in favor of “the rule of law” – like Isaac Herzog, Benny Begin and Avichai Mendelblit – and “law breakers” such as Naftali Bennet and Uri Ariel, can be regarded as a PR maneuver. The new legislation is not new in its essence. It would merely change the time frame: Instead of declaring that lands ostensibly belonged to the Jewish state before settlement, the law would allow that declaration to occur years after the invasion.
Every Arab who lives in the Galilee, the Triangle and especially the Negev can attest to similar methods being employed there, too, in order to empty the indigenous ownership system of rights. In these regions the state has often declared Arab lands as “empty” or “abandoned,” “dead” or “needed for public (Jewish) purposes,” and has transferred ownership to Jews.
The methods for turning Palestinian land into Jewish land in the West Bank is detailed in a new report by B’tselem, under the title “Expel and Exploit.” This report documents in detail the recent history of land around three Palestinian localities near Nablus: ‘Azmut, Deir al-Khatab and Salem. The general picture is familiar and worrisome: Large tracts of village lands were transferred, parcel after parcel, to Jews, through various measures that included creating security zones, paving limited-access roads, establishing illegal outposts, marking abandoned property and defining territories as nature reserves.
The report complements a comprehensive B’tselem report from 2012 titled “Under the Guise of Legality,” which documented the ways in which Israel manipulated Ottoman and British laws to transfer private Palestinian lands to Israeli and Jewish hands. The report demonstrated for the first time that Israel not only seriously infringed international law, but also local law, when distorting Ottoman and British land regulations. This despite the state’s obligation to maintain all previous legal norms in occupied regions.
The distorted process in the West Bank rests on the declaration that uncultivated lands in the farming areas of villages can be declared as state lands – even though, according to Ottoman law, any such untended land must be offered first to the original owners, then to their village, or be sold at public auction.
Israel has ignored the more inconvenient clauses of Ottoman law and replaced them with a Mandatory ordinance, which was meant to demarcate public lands in a completely different context. This distortion has formed the basis for massive and illegal Israelification of Palestinian lands. Needless to say, Ottoman and British rulers who enacted these laws never expropriated Palestinian (or Jewish) lands in a similar fashion.
Since the 1970s, Israel has used a similar manipulation in the Negev, declaring lands not formally registered at two different points in time – in 1858 and 1921 – as mewat, or “dead lands.” These are supposedly uncultivated, unpossessed, abandoned and remote lands, not belonging to anyone, and therefore property of the state. Israel did all this despite the historical Bedouin ownership of the land, most of which was cultivated and settled, according to traditional law, and recognized by the Ottomans and British.
Everyone knew this, including the Zionist institutions that paid full price for extensive Bedouin lands, with the approval of the British authorities. However, here, too the state ignores the inconvenient parts of history and law, by later classifying these lands as “dead.” In recent court cases the state is basically saying to the Bedouin: “Your fathers and grandfathers did not know this, but we are telling you that they were trespassers, and the lands you inherited or bought belong to the state.”
The courts have approved this interpretation mainly because of the precedent legal culture practiced in Israel, which relies on old rulings. These were given in a period when Arab landowners were powerless and lacked resources to challenge dispossession under the disguise of legality.
The comparison between the West Bank and the Negev makes clear the persistent and relentless Judaization process under the Israeli regime. Whether the land is cultivated (Negev) or neglected (West Bank), a legal manipulation will be found to transfer it from Arab to Jewish hands, thus making it “terra nullius” – land emptied of indigenous rights.
In light of this long and distorted legal history, it is perhaps preferable for those who seek peace and justice that the legalization bill will be fully enacted, and not be rejected by the Knesset or High Court of Justice. This will dispense with the false distinction between this current legislation and previous questionable laws of dispossession, and flatten the difference between Amona and Ofra, or between Salem and ‘Araqib. The law will fully expose what Israel has done in hidden ways for years: taking colonialist control of Palestinian lands by implementing its own version of the terra nullius doctrine, which international law has made null and void.
If passed, the new legislation will put Israel’s approach in its proper place, as belonging to a dark colonialist period whose time has passed. Perhaps this will trigger a process of far-reaching transformation and de-colonization, which is so badly needed in our torn land.
The writer teaches political and legal geography in the Negev and is a former co-chairman of B’tselem.