“Settling” constitutes a warcime according to international law and ICC statute. Even under US’ own military legislations’
Law resources below this article
We are pleased to present the facts based on research studies and a position paper of Prof. Oren Yiftahel, each of which relies on primary sources.
Say No to a Dangerous Plan that Would Push Agrarian Bedouin Society into Towns of Unemployment, Economic Distress and Despair
The Bedouin are already one of Israel’s poorest and most discriminated-against sectors. As with any extremely poor demographic they suffer from myriad social ills that result from their situation. But at least the Bedouin in the unrecognized villages manage to eke out a living from agriculture. Forcing them into urbanized towns unsuited to agriculture will sever them from basic sources of livelihood, sentence them to unemployment and exacerbate what is already severe socioeconomic distress. The government plans to replicate tenfold the economic failure of the town of Rahat and its ilk, at great expense. We will see mansions that look good on the outside, and families mired in unemployment and social crisis within, alongside neighborhoods of tin shanties – the homes of those who could not afford to build. The ones to pay the price will be first and foremost the Bedouin, but the rest of the Negev residents will suffer, too. Attorney Rauya Aburabiya, head of the Negev Arab Bedouin population rights division at the Association for Civil Rights: “…why does the State seek to wipe out the villages and force on them a solution that has already failed in the past? The seven permanent Bedouin settlements in the Negev are a failed model. Those towns stand out only for their position at the basement of all socioeconomic indicators. Nobody wants to live there, including the residents of the unrecognized villages. They prefer to live without water or electricity supply rather than a lowly formalized town…” See articles on the distress in Rahat [Hebrew]:
Central Bureau of Statistics rates Rahat as the poorest city in Israel [the only poorer place is Kseife, which is not big enough to be a city – it is another artificial, formalized, failed settlement established for the Bedouin]
They’re not taking over the Negev
The Bedouin constitute about 30% of the Negev population, and demand recognition of their ownership over only 5% of the area’s land. The counterargument is that it is not clear how much of the territory is already built up or available for residence. So let us compare only residential territory. We will compare cities to cities and villages to villages.
Jewish city: Beer Sheva
Population density: 1,750 residents per square kilometer
Bedouin city: Rahat
Population density: 2,802 residents per square kilometer
Sample rural area:
Jewish area: Bnei Shimon Regional Council, which includes a number of kibbutzim and moshavim:
Area: 440,000 dunams – population: 7,100
Density: 0.016 residents per dunam
Bedouin area: the unrecognized villages
The unrecognized villages occupy 350,000 dunams; combined with the pasture land the Bedouin claim, the total is 640,000 dunams under dispute. 650,000 Bedouin live on this land.
Density: 0.185 per dunam; the Bedouin seek recognition of ownership that would bring the figure down to 0.101 – in other words, still more than six dimes the density of the Jewish rural area. A veritable invasion.
They do not lack ownership of the land:
The State contends that the Negev land has been ownerless since the Ottoman period, but the available testimony shoes the opposite:
The early Zionist writings; Ottoman and British documents; purchase contracts of land by Jews from Bedouin; and even the reports by the State’s own expert – these all point unmistakably to Bedouin ownership of extensive Negev lands.
Now the details. First, the “Dead Negev” Law:
The State’s position is based on the Dead Negative Doctrine. The rightist jurist Plia Albeck claims that the Negev is “dead” land, i.e. ownerless, and has been so since the Ottoman period.
The Historical testimony:
The Ottomans actually recognized Bedouin ownership of the land:
If the area lands were “dead” in Ottoman eyes, as the State now claims, there would be no need to purchase them. Yet the Ottomans treated them as the property of the tribes, and even bought from the Muhmadin tribe the land to build the modern city of Beer Sheva (Azazma clan) in 1899 (Braslevski, 1950; Al-Araf, 2000; Garddus and Stern, 1079; Kerk, 2002).
The early Zionists recognized Bedouin ownership of their lands:
Early Zionist Zalman David wrote in his journal To the Land of Our Fathers that the Bedouin held much land in the Negev and were prepared to sell cheaply to the Jewish settlers. He recommended making the Negev the focus of Jewish settlement because of the availability of land and the positive Bedouin attitude. This was documented in the late nineteenth century: even before Herzl wrote The Jewish State these Bedouin had invited the Jews to come live near them.
Sale agreements between Jews and Bedouin attest to their ownership of the lands:
According to Porat, Kerk and Granovski, until 1948 Jews had registered 65,000 dunams purchased from Bedouin, a process that first required the Bedouin to register the property. It served as proof that the authorities recognized traditional ownership. Another study found that contrary to the government’s claim, neither British nor Ottoman law denied Bedouin ownership of the lands, and through that ownership the British registered the sales of tens of thousands of dunams by Bedouin to Jewish organizations prior to the establishment of the State (Yiftahel, Kedar and Amara, 2102).
They are not new to the Negev
Contrary to the prevailing claims, the Bedouin are longtime Negev residents: the Ottoman census of the end of the sixteenth century already noted the presence of Negev tribes in the Beer Sheva area, as well as extensive Bedouin agriculture. Non-Bedouin migrants joined them from neighboring countries, such as Egypt, Transjordan and the Rafiah-Aza coast (Al-Araf, 2000; Meir, 1985; Bailey, 1997). Largely, however, it is not people who only just came to the Negev. The 1914 Ottoman census put the Negev population at 55,000 Bedouin, while a 1922 British count numbered 51,000. This also shows that the claim that the Bedouin came only as a result of the success engendered by the early Zionists is contradicted – in fact it shows that there was actually an exit of Bedouin from the Negev.
They are not nomads
During the Ottoman period most of the Bedouin became “half-nomadic” – a blend of settlement, agriculture and grazing.
Evidence that more than one hundred Bedouin were no longer nomadic, from an early Otoman census:
A 1596 Ottoman census found many areas south of the Dahariya-Aza line that were “worked” – scattered Bedouin groups lived there permanently.
Testimony by researchers of Bedouin agriculture, 19th century:
“The area is extensively cultivated by the Tarabin tribe…” writes Edward Hull, describing his 1883 journey in the Tel Horira area, 20 kilometers northwest of Beer Sheva.
Testimony by Zionist groups regarding Bedouin agriculture at the start of the 20th century:
A Zionist land survey by the ILDC published in 1920 covered the situation of the tribes, cultivation and ownership of Negev land: the survey conclusions are clear: large swaths of the Negev were settled, cultivated and under traditional Bedouin ownership. The report notes that in the area surrounding Beer Sheva were 2.66 million dunams of Bedouin-owned land, about 35% of which were cultivated. In the northern Negev the cultivated percentage rises to 50%. The report details ownership and cultivation tribe by tribe, noting the names of more than 90 tribes.
What is the legal status?
One who cultivates land for 10 years is the legal owner
Ottoman law dictated – as did the British in its wake, with this provision still in force today – uninterrupted cultivation of land for a decade, practiced by most of the Bedouin, accords the cultivator ownership (in some locales it was “Miri” holding, a sort of inheritable right to hold and work the land, but even that eventually became bona fide ownership).
The State’s own expert’s findings lend support to the Bedouin’s version of events:
Even researcher Ruth Kerk, who testified in court for the State against the Bedouin, wrote in her book about the existence of extensive Bedouin agriculture at the start of the Mandate period. Kerk claims that the Bedouin were nomadic before the Mandate, with no agriculture, which contradicts solid testimonies. But even if what she says is factual, as above, according to British law, ten years’ consecutive cultivation creates ownership. Kerk estimates a total cultivated area of 3.5 million dunams in 1928 (Kerk, 2002). By 1948 these lands had seen two decades’ cultivation. As such the State’s own witness has proved Bedouin ownership.
There was even a measure of Bedouin autonomy
In 1891 the Bedouin tribe chiefs first agreed – with Ottoman approval – to divide the Negev among their tribes. The borders were clear and agreed. The tribal areas functioned as separate political entities with clear boundaries and local legal authority. Even the first Jewish land purchase in 1913 – for the land of Kibbutz Ruhama – from the Atawna tribe was approved retroactively by the Ottomans.
The Bedouin and Zionism:
Support for the Bedouin version is anti-Zionist? Depends how you define your terms But here is what the first Zionists had to say on the subject.
Read the words of the Zionist Fathers about Bedouin settlement in the Negev at the end of the nineteenth and start of the twentieth centuries:
“We went on the road from Gaza about four or five hours around Bedouin neighborhoods and fields, reaching Gerar by the end of the day…and on both sides of the wadi were row upon row of Bedouin shepherds’ tents. There were no trees there; the whole plain was sown with wheat and barley” (Livontin, 1936:37).
Menahem Shenkin, as well, one of the Zionist settlement leaders, took a trip through the Negev in 1912, and wrote:
“On Saturday night at nightfall we left our encampment and went northeast toward Beer Sheva…here and there were Arab residences, an admixture of houses, shacks and tents…a broad, good road for wagons moving among grain fields, sown with barley, barley and corn, which brought us to the hill of Beer Sheva…in the evening the district commander invited us to dinner…we talked about the development of the city…the lands all around are fertile. Abundant grain fields…”
Hitches and answers:
But there are opposite testimonies – that the Negev was desolate – no?
There were a few such testimonies, but those researchers, such as Palmer, visited the Negev in the summer or during drought. Palmer even reports in detail about the drought that hit the area in explaining the aridity of 1870, when he visited. On the other hand, most of the Negev travelers who left organized reports, such as Tristram, Wilton, Robinson, Schumacher, Johnson, Oppenheim, Musil and even the Zionist Livontin, reported on Bedouin agriculture they encountered in the nineteenth century and start of the twentieth (Seetzen, 1908; Jaussen, 1885; Hull, 1907; Musil, 1855).
So where are the registrations of Bedouin ownership of the land? Didn’t the Ottomans and British require registration?
Formally, Ottoman law since 1858 required registration of all land transactions. The Bedouin, like the vast majority of the land’s inhabitants, did not tend to follow this requirement, because they did not recognize the occupying Ottomans’ authority (which only barely functioned in the Negev); and because the land was not treated as “dead,” as the Ottomans recognized the Tasruf (the right to work for an unlimited duration) of the Bedouin. It thus emerged that the traditional Bedouin practice was the de facto system in effect. Even the Ottomans recognized that. During the British period, beginning in 1917, no significant changes took place in land administration or settlement, since the British sought to preserve the tribal autonomy in that regard. Winston Churchill as State Secretary for Colonial Affairs: “The Secretary of State for Colonial Affairs reinforced the guarantees already granted in Beer Sheva by the High Commissioner to the Sheikhs, that the special rights and customs of the Bedouin tribes of the Beer Sheva region will not be violated” (Public Records Office). The British and Ottomans respected and registered lands sold via the traditional Bedouin land system. Israel did not.
But aren’t there are historical maps of the Negev with no Bedouin settlements?
Most of the maps prepared by Europeans around the end of the nineteenth century did not mark Bedouin settlements, apparently because they misunderstood the Bedouin treatment of space – these were indeed settlements different in their layout and appearance from the villages in the country’s north, and were therefore not considered “villages” in the viewers’ eyes. Which is more likely – that the European cartographers did not see a method of settlement alien to them (tents and mud buildings) as villages worthy of marking? Or that dozens of detailed historical testimonies, some by the early Zionists, were fabricated or mistaken? The oft-heard claim that there was no Bedouin settlement in the Negev is problematic geographically and historically, and results, as mentioned, from a lack of cartographic documentation by the Bedouin in this period.
So how did we get from history to today’s unrecognized villages?
The process of dividing the land into zones of authority by tribe, clan and family is important – it forms the social-property basis of today’s unrecognized villages.
As geographer Avinoam Meir describes, within those tribal areas the Bedouin settlements developed over the last few centuries.
The switch to agriculture as the economic focus led to conflict with existing settlements, which also contained groups of tents; over the years beykas were built (mud-brick houses, storage buildings and livestock shelters) and later, stone houses.
“States may not deport or transfer parts of their own civilian population into a territory they occupy.”
State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
International armed conflicts
The prohibition on deporting or transferring parts of a State’s own civilian population into the territory it occupies is set forth in the Fourth Geneva Convention.
It is a grave breach of Additional Protocol I.
Under the Statute of the International Criminal Court, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts.
Many military manuals prohibit the deportation or transfer by a party to the conflict of parts of its civilian population into the territory it occupies.
This rule is included in the legislation of numerous States.
Official statements and reported practice also support the prohibition on transferring one’s own civilian population into occupied territory.
Attempts to alter the demographic composition of an occupied territory have been condemned by the UN Security Council.
In 1992, it called for the cessation of attempts to change the ethnic composition of the population, anywhere in the former Yugoslavia.
Similarly, the UN General Assembly and UN Commission on Human Rights have condemned settlement practices.
According to the final report of the UN Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements, “the implantation of settlers” is unlawful and engages State responsibility and the criminal responsibility of individuals.
In 1981, the 24th International Conference of the Red Cross reaffirmed that “settlements in occupied territory are incompatible with article 27 and 49 of the Fourth Geneva Convention”.
In the Case of the Major War Criminals in 1946, the International Military Tribunal at Nuremberg found two of the accused guilty of attempting the “Germanization” of occupied territories.
 Fourth Geneva Convention, Article 49, sixth paragraph (cited in Vol. II, Ch. 38, § 334).
 Additional Protocol I, Article 85(4)(a) (adopted by consensus) (ibid., § 335).
 ICC Statute, Article 8(2)(b)(viii) (ibid., § 336).
 See, e.g., the military manuals of Argentina (ibid., §§ 346–347), Australia (ibid., § 348), Canada (ibid., § 349), Croatia (ibid., § 350), Hungary (ibid., § 351), Italy (ibid., § 352), Netherlands (ibid., § 353), New Zealand (ibid., § 354), Spain (ibid., § 355), Sweden (ibid., § 357), Switzerland (ibid., § 357), United Kingdom (ibid., § 358) and United States (ibid., § 359).
 See, e.g., the legislation of Armenia (ibid., § 361), Australia (ibid., §§ 362–363), Azerbaijan (ibid., §§ 364–365), Bangladesh (ibid., § 366), Belarus (ibid., § 367), Belgium (ibid., § 368), Bosnia and Herzegovina (ibid., § 369), Canada (ibid., §§ 371–372), Congo (ibid., § 373), Cook Islands (ibid., § 374), Croatia (ibid., § 375), Cyprus (ibid., § 376), Czech Republic (ibid., § 377), Germany (ibid., § 379), Georgia (ibid., § 380), Ireland (ibid., § 381), Mali (ibid., § 384), Republic of Moldova (ibid., § 385), Netherlands (ibid., § 386), New Zealand (ibid., §§ 387–388), Niger (ibid., § 390), Norway (ibid., § 391), Slovakia (ibid., § 392), Slovenia (ibid., § 393), Spain (ibid., § 394), Tajikistan (ibid., § 395), United Kingdom (ibid., §§ 397–398), Yugoslavia (ibid., § 399) and Zimbabwe (ibid., § 400); see also the draft legislation of Argentina (ibid., § 360), Burundi (ibid., § 370), Jordan (ibid., § 382), Lebanon (ibid., § 383) and Trinidad and Tobago (ibid., § 396).
 See, e.g., the statements of Kuwait (ibid., § 405) and United States (ibid., §§ 406–407) and the reported practice of Egypt (ibid., § 402) and France (ibid., § 403).
 See, e.g., UN Security Council, Res. 446 , 452 and 476 (ibid., § 408), Res. 465 (ibid., § 409) and Res. 677 (ibid., § 410).
 UN Security Council, Res. 752 (ibid., § 411).
 See, e.g., UN General Assembly, Res. 36/147 C, 37/88 C, 38/79 D, 39/95 D and 40/161 D (ibid., § 412) and Res. 54/78 (ibid., § 405); UN Commission on Human Rights, Res. 2001/7 (ibid., § 413).
 UN Sub-Commission on Human Rights, Final report of the Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements (ibid., § 415).
 24th International Conference of the Red Cross, Res. III (ibid., § 419).
 International Military Tribunal at Nuremberg, Case of the Major War Criminals, Judgement (ibid., § 421).