James Anaya

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CASOS EXAMINADOS POR EL RELATOR ESPECIAL  (AGOSTO 2010 – JULIO 2011)

A/HRC/18/35/Add.1, 22 Agosto 2011



 

 

Annex VI
Israel: Situation of unrecognized Bedouin villages in the Negev desert 

ISR 2/2011
 
1.         In his communication of 1 February 2011, the Special Rapporteur on the rights of indigenous peoples, James Anaya, called the attention of the Government of Israel to the alleged demolitions of “unrecognized” Bedouin villages in the Negev desert and the relocation of their inhabitants to government-planned villages. The full text of this communication can be accessed from the electronic version of the joint communications report (A/HRC/18/51), which is available on the web site of the Human Rights Council. This communication followed a request by the Special Rapporteur for a visit to Israel to examine the situation of the Bedouin people in the Negev, transmitted to the Government on 1 September 2010. The Special Rapporteur had not received a reply to that visit request. Nor did the Government respond to his communication of 1 February 2011 within 60 days as requested by the Special Rapporteur. In the absence of a response to his communication, the Special Rapporteur developed the observations below, which include an evaluation of the situation and recommendations, within the framework of relevant international standards. These observations were transmitted to the Government on 16 June 2011. Subsequently, the Government submitted a response on 15 August 2011.
 
Summary of the information received and transmitted to the Government
 
2.         According to the information received, the Bedouin have inhabited the area known as Negev since the seventh century, maintaining a semi-nomadic lifestyle, engaging in subsistence farming and raising livestock. Their land use practices were governed by an intricate system of customary land and water distribution and management. Allegedly, since 1948 the State of Israel has failed to recognize Bedouin legal entitlement to their traditional lands in the Negev, and instead most all of the lands in the Negev are officially designated as under ownership by the State. Rather than adopt a land policy that recognizes the villages established by the Bedouin in the Negev, from the 1960s to the 1980s the Government planned and created seven towns in the Negev and relocated Bedouin from their villages to these urban areas. These planned towns are Rahat, Ar’ara BaNegev, Tel Sheva, Kuseifa, Segev Shalom, Lakiya and Hura. Even though the Government has committed significant resources toward Bedouin housing and delivery of essential services within the planned towns, the people in the Government-created towns reportedly rank at the bottom of all the indicators used by the State to measure social and economic wellbeing. Furthermore, the Bedouin have complained that they cannot continue to live in their traditional manner in these urban areas, given that raising crops or animals in the towns is not allowed.
 
3.         Reportedly, out of approximately 155,000 Bedouin living in the Negev today, around half live in the recognized towns created by the Government and half live in 47 so-called “unrecognized villages”. According to the information received, although officially unrecognized, the majority of these villages were established prior to the creation of the State of Israel, and virtually all were established prior to the creation of the Government-created towns. The unrecognized villages are denied all forms of basic infrastructure and are not allowed to build or develop in any way. Building permits may not be issued in unrecognized villages, resulting in Bedouin individuals being indicted continually for “illegal” construction and in countless Bedouin homes being subject ot demolition orders. It is further alleged that, since the early 1990s, Bedouin people living in unrecognized villages throughout the Negev desert have experienced ongoing demolitions of their homes and villages by Israeli authorities. Most recently, during the course of 2010 and 2011, the Al-Arakib (also spelled El-Arkib) village has been destroyed on nine occasions, after having been rebuilt by villagers following each demolition. Reportedly, the residents were given no notice or warning about the demolitions to retrieve their personal possessions and valuable items like gas stoves and water tanks. Their sources of livelihood – olive trees, poultry and sheep – were also destroyed.
 
Observations of the Special Rapporteur
 
4.         Having cross-checked the information received and transmitted on this situation, the Special Rapporteur considers that in material respects the information is sufficiently credible to indicate a pressing problem that requires attention by the Government of Israel. In an ongoing spirit of constructive dialogue and cooperation, the Special Rapporteur offers the following observations, which include a series of recommendations, in the hopes that they may assist the Government of Israel to address this issue.
 
Duty to protect Bedouin rights to lands and resources in the Negev
 
5.         The Special Rapporteur considers there to be strong indications that Bedouin people have rights to certain areas of the Negev based on their longstanding land use and occupancy, under contemporary international standards. It is undisputed that the Bedouin have used and occupied lands within the Negev desert long before the establishment of the State of Israel and that they have continued through the present to inhabit the Negev, maintaining their culturally-distinctive land tenure and way of life. Yet, claims have persisted that the rights of the Bedouin to the lands they traditionally use and occupy in the Negev have not been adequately recognized and respected by the Government of Israel, either historically or today.
 
6.         The land tenure situation of the Bedouin in the Negev has been identified as a matter of concern by both the Human Rights Committee, in its review of Israel’s compliance with the International Covenant on Civil and Political Rights[1], and by the Committee on the Elimination of All Forms of Racial Discrimination (CERD), in its review of Israel’s compliance with the Convention on the Elimination of All Forms of Racial Discrimination[2]. In particular, the Human Rights Committee has stated that Israel “should respect the Bedouin population’s right to their ancestral land and their traditional livelihood based on agriculture” (CCPR/C/ISR/CO/3, para. 24) and similarly, CERD has recommended that Israel give “recognition of the rights of the Bedouins to own, develop, control and use their communal lands, territories and resources traditionally owned or otherwise inhabited or used by them” (CERD/C/ISR/CO/13, para. 25).
 
7.         The Special Rapporteur notes that the United Nations Declaration on the Rights of Indigenous Peoples sheds further light on the obligations of the State in relation to the Bedouin. The difficulties of the Bedouin in maintaining their distinct cultural identities and connections to their traditional lands are akin to the problems faced by indigenous peoples worldwide. The specific relevance of the Declaration, as evident by its terms, and of the various United Nations programs and mechanisms concerning indigenous peoples, including the mandate of the Special Rapporteur on the rights of indigenous peoples, is to those groups indigenous to a territory that are in non-dominant positions and that have suffered and continue to suffer threats to their distinct identities and basic human rights, in ways not felt by dominant sectors of society.
 
8.         Accordingly, with respect to Israel’s apparent failure to recognize and respect the rights of Bedouin to lands and resources in the Negev, it bears mentioning that the United Nations Declaration on the Rights of Indigenous Peoples affirms:
            Article 26
            1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
            2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
            3. States shall give legal recognition and protection to these lands, territories    and resources. Such recognition shall be conducted with due respect to the    customs, traditions and land tenure systems of the indigenous peoples concerned.
 
9.         Further, the Special Rapporteur is concerned that there appears to be no effective land claim procedure for the Bedouin people to invoke, prior to their removal from lands they occupy or to the demolition of the unrecognized villages. The Special Rapporteur notes that, as provided by the Declaration on the Rights of Indigenous Peoples, States have an affirmative duty to establish a process for identifying and protecting indigenous land rights, and this process should be carried out in cooperation with the indigenous peoples concerned[3]. Given the failure of the State to establish a mechanism through which Bedouin may seek to have any existing rights to lands and resources recognized, Bedouin people appear to have been defenseless in the face of threats to their rights to lands and resource, threats that have materialized into the destruction of unrecognized Bedouin villages and forced removal of Bedouin people.
 
Limitations on rights to lands and redress
 
10.       Like other property interests, the property rights of indigenous peoples based on their traditional land and resource tenure may be subject to limitations for legitimate, non-discriminatory public purposes in accordance with law. The Special Rapporteur would welcome information from the State of Israel about its justifications for the severe limitations on Bedouin land rights that are imposed by the demolitions of Bedouin villages.
 
11.       According to the information the Special Rapporteur has received from other sources, possible explanations for the Government’s demolitions of unrecognized Bedouin villages include the need to concentrate the Bedouin people into recognized towns and settlements so as to assist in the delivery of services to them. Another reason identified for the demolitions is to clear the way for maintaining a Jewish presence throughout the Negev, in order to offset the high population growth of the Bedouin, which is one of the highest in the world. With respect to the first of these possible justifications, there are questions regarding the non-discriminatory application of this policy, since according to the information received Jewish settlements in the Negev are provided with essential services while Bedouin settlements of comparable sizes and populations are not. The second of these possible justifications – assisting in maintaining a Jewish presence in the Negev in order to offset the high population growth of the Bedouin – is racially discriminatory on its face, and thus, even if it were established by law, could not count as a legitimate limitation on Bedouin land rights that comports with relevant international standards.
 
12.       The Special Rapporteur further notes that, while in general, removals of people from their traditional lands have serious implications for a wide range of human rights, these implications are greater for groups like the Bedouin, who hold bonds of deep historical and cultural significance to the lands in which they live. In this context, consent is a precondition for any forced removal according to article 10 of the United Nations Declaration, which states that “[i]ndigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return”.
 
13.       The Special Rapporteur has been informed that some of the past relocations of Bedouin from unrecognized villages to urban townships were, in some instances, carried out in consultation with and with the consent of the affected Bedouin people. However, according to the information received, which the Special Rapporteur finds to be credible, there have been several more recent cases, including the case of the Al-Arakib village, in which consent of the affected Bedouin was clearly not obtained prior to the demolition of their village.
 
14.       In any case, even if, after careful analysis bearing in mind the above standards, restriction of the rights to land and resources of Bedouin is considered an option, these restrictions should only take place with adequate mitigation measures and, in the case of any removals, with the agreement of the affected Bedouin within a participatory, consensus-building process, and the opportunity to return to their traditional lands. In this connection, article 28 of the Declaration affirms the right of indigenous peoples “to redress, which can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent”, and “[u]nless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress”.
 
15.       In the cases that have been brought to the attention of the Special Rapporteur, including the case of Al-Arakib, it is alleged that no alternative lands over which the Bedouin may continue their traditional ways of life have been set aside and no monetary compensation for the removals and the land loss has been provided. Moreover, a number of reports indicate that in the course of the forced removals, Bedouin have suffered the destruction of personal belongings and livestock, with no compensation.
 
Recommendations
 
16.       In light of the foregoing the Special Rapporteur would like to make the following recommendations to the Government of Israel:
 
17.       The Government should ensure that all laws and administrative practices related to lands and development align with international standards concerning rights of indigenous people to lands, territories and resources. To this end, the Government should undertake a comprehensive review of its land and development policies that affect Bedouin people living in the Negev, giving due attention to the recommendations in relevant reports of the Human Rights Committee and the Committee on the Elimination of All Forms of Racial Discrimination. As part of this review, Israel should establish a mechanism to identify and protect the lands in the Negev over which Bedouin people have legal entitlement, in accordance with relevant international standards.
 
18.       Israel should immediately cease to carry out any further demolitions of Bedouin villages in the Negev or any forced relocations of Bedouin from unrecognized villages to recognized townships, unless in consultation with affected Bedouin and pursuant to their free, prior and informed consent.
 
19.       Israel should establish an adequate mechanism under which affected Bedouin can apply to receive redress for any restrictions to or infringements of their rights to lands and resources, including such restrictions or infringements resulting from demolitions and evictions carried out. Redress should include comparable alternative lands and monetary compensation for lands, resources and other property that have been lost, and the State should also provide the option of the return of groups to their traditional lands, at a future date, if possible and if they so desire.
 
20.       Israel should ensure the delivery of essential services to Bedouin people, both within and outside of the recognized towns. In this connection, the Special Rapporteur supports and reiterates the recommendation of the Human Rights Committee that Israel should “guarantee the Bedouin population’s access to health structures, education, water and electricity, irrespective of their whereabouts on the territory of the State party” [(CCPR/C/ISR/CO/3, para. 24 (2010)].
 
21.       The Government should embrace a long-term vision for social and economic development of the Negev, including in the unrecognized Bedouin villages, bearing in mind the historical and cultural importance of these villages to the Bedouin and to the society at large. This long-term vision for development of the Negev should enable Bedouin to become active participants in and direct beneficiaries of any development initiatives affecting the lands the Bedouin traditionally use and occupy within the Negev.
 
22.       These observations and recommendations represent only an initial assessment of this situation, and the Special Rapporteur would welcome the opportunity to maintain a continued dialogue with the Government of Israel in this regard. Therefore, the Special Rapporteur would like to reiterate his interest in carrying out an on-site visit to Israel to examine in greater detail the situation of the Bedouin in the Negev, in accordance with my mandate from the Human Rights Council to “examine ways and means of overcoming existing obstacles to the full and effective protection of the rights of indigenous peoples […] and to identify, exchange and promote best practices” (HRC Res. 15/14).  
Response of the Government of Israel
 
23.       In a letter dated 15 August 2011, the Government of Israel responded to the issues raised by the Special Rapporteur. The response was sent after the cut-off date for publication of government responses in the joint communications report of Special Procedures mandate holders. Therefore, the complete text of the letter will be available in the next joint report. With this in mind, the Special Rapporteur summarizes here the Government’s response.
According to the Government:
 
·         The State of Israel does not accept the classification of its Bedouin citizens as an indigenous people. Historically, Bedouin tribes arrived to the Negev area late in the Ottoman era, mainly from Saudi Arabia and Egypt, to an already existing legal regime.
·         Certain Bedouin families claim private ownership to vast lands, relying upon Bedouin custom. The land laws of the State of Israel, as developed from the Ottoman and British laws that preceded them do not recognize Bedouin custom as a source for private land rights. The area in question includes thousands of dunams, situated between Rahat and Beer Sheva. This is State land (“mawat”) according to Ottoman law, which was adopted during the British mandatory period and then absorbed into the laws of the State of Israel. As in other countries under the Ottoman and later British rule, private land transactions and claims of private ownership were subject to approval, acknowledgement and registration by government authorities. The Bedouins ignored these laws, for a variety of reasons, including economic considerations and a reluctance for making tax payments. Since the 1950s, the land has been held by Israel’s Development Authority and the Israel Lands Administration.
·         After the foundation of the State of Israel, some areas of the Negev region were expropriated for housing, security and development needs, and have since been considered as public domain. The expropriated lands remain used for their initial stated purposes including housing and agriculture. Bedouin claims regarding land ownership were collected by Israel in the 1970s as part of a legal procedure that was carried out by the State. Unlike in other regions and despite a lack of legal documentation for Bedouins claims, the State has tried to settle claims beyond the letter of the law, offering compensation and alternative land plots in state organized localities. This policy accompanied the transition of the Bedouin society over the years from semi-nomadic to permanent housing. The nomadic lifestyle, as was practiced in the last century, no long exists, and does not seem to suit the current needs of the community.
·         The so-called El-Arkib village was simply an act of squatting on state owned land. The individuals never had ownership over this land. In the early 2000s, the Israel Lands Administration lawfully evicted the Bedouin families, but many individuals returned to the area without permission. This started a series of legal proceedings, held in three instances in including the Supreme Court, all of which ordered the Bedouin families to leave the area. The Israel Lands Administration continued to evict the families and they continued to return. Israel also offered the Bedouin families alternate agricultural lands at symbolic rates, but they refused and continued their illegal actions.
·         Israel has a long-existing policy of offering alternative living arrangements for those who live outside established localities. The State of Israel allocated a significant budget to offer constructive solutions to the housing, services and infrastructure needs of the Bedouin community. Further, Israel plans to build new localities suitable for the lifestyle and occupations of the Bedouin community.
·         The issue of the Bedouin settlement was recently examined by an independent public commission chaired by former Supreme Court Justice Eliezer Goldberg. The committee’s report, submitted in 2008, contained a range of options, particularly from its Bedouin representatives. At the time of the submission of the report, the government appointed an implementation team for the report, which is scheduled to present its conclusions in the near future. The Goldberg Report does not envisage to give land to the Bedouins in the area taken over by the squatters and does not propose to establish a town at the site. The report emphasizes the need to stop the illegal construction in the Negev immediately, and it charges the authorities with vigorous enforcement of the law against the illegal construction.
 
Further observations by the Special Rapporteur
 
24.       The Special Rapporteur thanks the Government of Israel for its response of 15 August 2011, although it comes well after the expiration of the time within which the Special Rapportuer had asked for responses to his earlier communications. The Special Rapporteur asked for a response to his initial communication of 1 February 2011 within 60 days, and he invited submission by 18 July 2011 of any comments the Government may have to his above observations, which were transmitted to the Government on 16 June 2011. Nonetheless, the Special Rapporteur welcomes the Government’s response, and he would like to comment on it as follows.
 
25.       First, the Special Rapportuer acknowledges the position of the State of Israel that it does not accept the classification of its Bedouin citizens as an indigenous people given that Bedouin tribes arrived to the Negev area late in the Ottoman era, mainly from Saudi Arabia and Egypt, to an already existing legal regime. The Special Rapporteur notes, however, the longstanding presence of Bedouin people throughout a geographic region that includes Israel, and observes that in many respects, the Bedouin people share in the characteristics of indigenous peoples worldwide, including a connection to lands and the maintenance of cultural traditions that are distinct from those of majority populations. Further, the grievances of the Bedouin, stemming from their distinct cultural identities and their connection to their traditional lands, can be identified as representing the types of problems to which the international human rights regime related to indigenous peoples has been designed to respond. Thus, the Special Rapporteur considers that the concerns expressed by members of the Bedouin people are of relevance to his mandate and fall within the ambit of concern of the principles contained in international instruments such as the United Nations Declaration on the Rights of Indigenous Peoples.
 
26.       In addition, the Special Rapporteur cannot avoid making principled assessments about the scope of his mandate in relation to particular groups in the course of addressing human rights concerns that are brought to his attention. In this connection, consistent with the terms of his mandate, the Special Rapporteur cannot simply accept without independent inquiry general assertions that particular groups are not within his mandate. Nor does he consider that the question of whether or not a particular group is indigenous and related considerations can be left entirely to the subjective determination of States. The very human rights principles that undergird international concern for indigenous peoples, and an understanding about the context in which indigenous issues arise in connection with those principles, instead must guide assessments of this type. The Special Rapporteur hopes that the Government of Israel will reconsider its position in this regard and that, in any event, it will work diligently toward ensuring full and adequate responses to the human rights issues raised regarding the situation of the Bedouin people in the Negev.
 
27.       Second, the Special Rapporteur would like to respond to Israel’s position that Bedouin people do not have customary rights to lands in the Negev given that the land laws of the State of Israel, as developed from the Ottoman and British laws that preceded them, do not recognize Bedouin custom as a source of private land rights. In the view of the Special Rapporteur, such a position, which is based in colonial era laws and policies, should be reviewed. Far from providing a justification for the current failure to recognize indigenous peoples’ land rights based on their customs, the historical denial of these rights and the dispossession of indigenous peoples from their traditional lands are acts that are now understood to be inconsistent with international human rights standards. In this regard, the United Nations Declaration on the Rights of Indigenous Peoples specifically requires that States must provide “redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent” (article 28). Finally, the Special Rapporteur does recognize the need for an orderly administration of land and a respect for the rule of law. However, legal and administrative policies related to land must also be consistent with international human rights standards and accordingly must also be adjusted where they fall short of those standards.
 
28.       The Special Rapporteur reaffirms the recommendations made in the above observations, and he will continue to monitor the situation of the Bedouin in the Negev as appropriate.
 


[1] CCPR/C/ISR/CO/3, para. 24 (2010).
[2] CERD/C/ISR/CO/13, para. 25 (2007).

[3] Article 27 of the Declaration affirms that “States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process”. 

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