Appropriation of Land in the Negev – The Post-Zionist conceptualization
(Taken from Haim Sandberg The Lands of Israel – Zionism and Post-Zionism, Ch. 6 The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, The Hebrew University of Jerusalem, 2007)
Translated from Hebrew by Barry Davis for Israel Academia Monitor
- Is the entire Negev an appropriated area?
- The extent of recognition of private ownership in nomads’ living areas
- The Negev as “a concept”
Is the entire Negev an Appropriated Area?
One of the most significant dispossession claims against Israel charges Israel with having appropriated millions of dunams of Palestinian-Arab land in the Negev. The equation on which this claim takes into account, both in the northern Negev and most of the southern Negev, an area which comprise of around 12 million dunam. The question is whether this enormous expanse of land was appropriated from Arab/Bedouin controlled lands.
The legal answer to the question is clear. The ownership rights to land in the Negev, as in the other parts of Israel, were formed on the basis of the Ottoman land classification; as a result, the vast majority of land in the Negev matches the Ottoman definition of the mewat category of land, which includes “land that is not legally possessed, which is remote from an inhabited place whereby a human voice cannot reach it from the edge of the nearest community.” Residual ownership of this land was conferred to the government in accordance with Ottoman law. The topography and geography of most land in Israel justifies their inclusion in this Ottoman category, based on a division into three types of land: first, the most limited, is the middle area between inhabited, agricultural and municipal areas; second, and more extensive, includes desert regions inhabited by nomads; third, the largest type, includes expanses, mostly desert areas, which were not populated and were not suitable for nomadic habitation. Almost all of the southern Negev was never populated, thus this area, which covers around 9 million dunam (about 43% of the entire area of Israel), was never privately owned.
More difficult to estimate is the size of the area appropriated in the northern Negev, which totals about three and half million dunam. Based on the maximum assessment, before the establishment of the state of Israel the majority of this area (some 2.7 million dunam) was home to nomadic Bedouins. Even so, the ownership claims brought by the Bedouin in the early 1970s, at the start of the process of formally registering property rights on land in the region ("Land Title Settlement"), ultimately referred to an area of only about 990,000 dunam. Most are located in the restricted area where the Bedouins were concentrated after the creation of the state, and only a minority (about 200,000 dunam) is located in the northwestern Negev where most of the Bedouins had lived before the state of Israel was founded. It is, therefore, clear that even at the top-end of the Bedouins’ claims these only refer to a small part of the Negev region, which is mostly located in the northeast of the Negev and does not include the whole of the north Negev. The appropriation claim can only be made in relation to this area. In respect of the remaining millions of dunams that feature in the appropriation equation, this can certainly not be based on even the weakest claims of previous ownership.
The Extent of Recognition of Private Ownership in Nomads’ Living Areas
The claim against appropriation made by the Bedouins with regard to northern Negev is difficult to accept. This difficulty primarily stems from the fact that Ottoman law and Mandatory law did not recognize all the uses of Bedouin land as uses that confer a right to acquire private ownership. In the British Mandate period, use of land for a tent community or grazing, was considered a separate category from the one that dealt with agricultural activity (for the purpose of acquiring private ownership according to Ottoman law). The opportunity to acquire property through agricultural activity was significantly reduced during the Mandate. Even though, according to Ottoman law, it was possible to acquire private ownership of mewatland through a government allocation based on the concept of “revived” land that is, when it was deemed ready for cultivation.
At the beginning of the Mandate in 1921, the British sought to limit the ability to claim private rights through “revival” ofmewat land and, therefore, determined that no such “revival” would be allowed from then on. Formally, that did not constitute a legal innovation as, even under Ottoman law, “revival” required approval, and the British were of course able, if they so wished, to allocate government land to individuals. The innovation lay in the fact that the British were determined not to recognize unauthorized possession. Thus, the British were ready to recognize “revival” carried out prior to 1921, even when not formally approved, as long as they were claimed and registered within a specific period. The evidential difficulty to disprove claims of cultivating land prior to 1921 sometimes led to recognition of land as a cultivated area, even when cultivation started after 1921. However the official British and Israeli policy, which reflected the original Ottoman law, was that rights acquired following unauthorized possession of mewat land would not be recognized. In this context it should be noted that some of the Bedouins’ claims of ownership based on agricultural usage were supported by a loose interpretation of the term “cultivation”, such as claims that included a drainage basin of a much smaller actual cultivated area.
At first glance it is easy to argue that the British approach is an expression of “a modern Western project which generates progress and order in the archaic and chaotic East”, that it is a specific expression of “the approach of colonial law to local populations.” If there is no tradition of recognition of private rights by a nomadic population, a situation where these nomads will remain “suspended in the expanse” or “invisible” [in the legal sense] without any ownership rights could occur. The claim that, in the absence of recognition of any formal property right in accordance with existing law, some sort of property right could have been given to the Bedouins - should be considered.
There is, indeed, considerable criticism against the way the state of Israel chose to allocate property rights to the Bedouin, and against the appropriate extent of these rights. The Bedouin public, and its supporters, have highly justified claims against the enforced relocation of the Bedouin following the creation of the state of Israel; first, from their natural living areas to the restricted area, and then, from the restricted area to Bedouin towns. There are considerable claims against the social and personal damage caused by the enforced transition from the traditional way of life to an urban environment. Today most of the state authorities agree that this process was not appropriate and should be corrected. Although the corrective action is not simple, it is safe to assume that the problems of the Bedouins can be solved, and that these problems are both land-based and social in nature.
The Government of Israel decided some time ago to allocate resources for this. Such a solution can strike a balance between the needs of one group of the population, which is small (less than 2%) but uses exceptionally large tracts of land, and the land needs of the general public, include land for security purposes or the needs of other groups of the population. It will relate not only to aspects of ownership and land but also to financial elements of compensation and allocating budgets. Such a solution ultimately necessitates the formation of a map on which an area is designated for allocation for the needs of the Bedouin population. This area will not include the full area claimed by them, a notion that even some of the Bedouin supporters accept. This means that, even if most of the Bedouins claims are met, the area will be equal to a very small part of the land which the appropriation claim denotes in the appropriated residue. An appropriate solution certainly does not justify and does not require unlimited use by the Bedouin of the entire Negev expanse, whether the southern or the northern part. One cannot ignore the Bedouin and relate to them as ”invisible” citizens however, by the same token, consideration of their needs does not require or allow allocation of unlimited land resources.
The Negev as a “Concept”?
In view of the aforesaid, it is very hard to understand why some claim that Israel had incorporated almost all the areas of the Negev. This claim is premised on the idea that the entire Negev constitutes a Bedouin or Arab expanse which should be left, freely and in an unlimited fashion, to undisturbed Bedouin hegemony. It is hard to justify such a generalization on the basis of the claim that all parts of the Negev were a Bedouin possession prior to 1948. It is also hard to explain why, in terms of size, the needs and uses of the land by this one demographic group, most of the Negev should be owned by it. In this context, it is possible that the charge against Israel’s appropriation policy is not based on legal, social or economic considerations; rather, and possibly primarily, it implies a political stance on the future of the Negev, a stance which does not accommodate any Zionist or Jewish use of unused parts of the Negev. Such an approach is based on the premise that the Bedouins have an historic and cultural bond to the lands of the Negev as “a concept” and, as such, it cannot be geographically demarcated and cannot be altered over time as this becomes a case of “unrestricted continuity.” It negates a solution to the distress of the Bedouins “through management and reorganization of the expanse”, something that Israel has proposed.
In addition, presenting the entire area as if it was under Bedouin ownership that the state had expropriated and stressing the importance of the role of land for the Bedouin way of life, is designed not only to protect the land to which the Bedouin are eligible but also to obviate any discussion of the legitimacy of Zionist possession. The latter is perceived as having no legitimacy and no justification; described as the “Zionist project” it is viewed as driven by “the Zionist thirst for land" and “designed to control land.” In this view, Israeli policy comports “the approach of colonial law to local populations”. This perception demonstrates the narrative which “presents the Negev as an empty place which belongs to the state, and is under threat by the Bedouins” as totally unfounded with regard to all parts of the Negev, regardless of the Bedouins’ actual bond with the land. Taken to its logical end-point, the “Zionism as colonialism” theory leads to the conclusion that no harm should be inflicted on “spontaneous” Bedouin communities, whenever they crop up, but at the same time no empty areas should be allocated to Jews. Presenting the issue of the Bedouins as a matter of harming the Negev as “a concept”, makes any discussion of the question of the justification of Zionist interests in the Negev superfluous. In other words, for radical supporters of the Negev as “a concept,” the only solution for the alleged historic distortion wrought by Israel is to define the entire Negev as an area that should be designated for uninterrupted and unlimited possession by the Bedouins, while completely negating any Zionist possession there.
For notes, see original chapter in Hebrew.