Wednesday, March 10, 2010

Winston Churchill and the Be'er Sheba District Court

Last week, Nuri el-Okbi was held in the detention cell in the basement of Be'er Sheba's Hall of Justice, and the police demanded that he be remanded in custody until the end of judicial proceedings which might last for months or years – on charges of "trespassing". This week he sat, free, in the hall of Justice Sarah Dovrat, on the sixth floor of the same building – in the civil proceedings where he demands of the state to recognize that in the lands of Al-Arakib he is not "a trespasser" but the owner.

Adv. Rawash (for the state): In 1921, at the beginning of the Mandate, the British Government enacted the "Dead Lands Ordinance" and gave Bedouins two months to come up and register at the Land Registration Office their ownership of lands which they claimed. Hardly any Bedouin did that. They can’t come up with ownership claims now.

Yiftahel: This is the common judicial argument under which the Bedouin claims of land ownership are rejected. But it ignores salient facts.

On March 29, 1921 – before the expiration of that two-month period – a delegation of Beduin Sheiks went to Jerusalem, to confer with Winston Churchill, at the time the British Secretary of State for the Colonies. In the official concluding statement, which I located at the Public Records Office in London, the Sheiks declared their loyalty to His Majesty's Government, while Churchill confirmed an earlier promise by High Commissioner Herbert Samuel, that "The special rights and customs of the Bedouin Tribes of Be'er Sheba will not be interfered with".

Subsequently, the British Mandatory Government excluded the Be'er Sheba District from the application of the new land law, absolving Bedouin inhabitants from the duty of registering their land. Instead, a Tribal Court was set up in Be'er Sheba, which remained active throughout the Mandate period. Cases of land dispute were usually settled by a bench of three Sheiks, in accordance with Bedouin Tribal Law.

The British recognized the Bedouins' ownership over the land. Whoever did want to register their land at the Land Registration Office was free to do so throughout the time of British rule, and 64,000 dunams of Bedouin lands were indeed registered. However, those who registered their land were usually those who wanted to sell it to non- Bedouins (including Jews). In order to continue holding the land, or to let sons inherit it, or to sell to other Bedouin, there was no need to have recourse to the governmental Land Registry Office. For such purposes, the traditional Bedouin tribal law was quite adequate. The assertion that Bedouin families or tribes which had not registered their land ownership in 1921 have "missed the train" and lost title to the land was never heard before 1948. This is an not a British law, but an original Israeli judicial argument giving the British law a new interpretation which the British themselves never advanced.

Prime Minster Binyamin Netanyahu is well-known for his admiration of Winston Churchill and for aspiring to emulate that British statesman. But Netanyahu might not be quite familiar with Churchill's acts on March 1921…