By: Hiba B’irat
Umm Al-Hiran and Atir are two of 36 Bedouin villages in Negev (Al-Naqab) unrecognized by Israel. Arab inhabitants of these communities hold the Israeli citizenship and were originally located in their current location by the orders of the Israeli commander after being expelled for many times since the Nakba of 1948.
The two villages have recently received eviction orders after the Israeli High Court denied their petition against the demolition orders in 2015 arguing that the land of Negev belongs to the state of Israel; therefore Bedouins have no legal claim over them.
The eviction orders come as part of a wide scale plan, known as Prawer, to evict Negev from its Arab inhabitants and replace them with Jewish communities. Umm Al-Hiran is to be destroyed and replaced with an Israeli settlement called Hiran, while Atir is to be replaced by “Yatir Forest”. The inhabitants of the two communities are planned to be forcefully relocated to another Bedouin town on the borders called Hura.
This article is designed to discuss the legal status of the Israeli policies towards the indigenous Arab Bedouin communities in Al-Naqab and examine whether such policies of demolitions, evictions, displacement, land expropriation and discrimination are merely a minor housing problem within the Israeli boarders or amount to ethnic cleansing claims.
Prawer- Begin legislation is a plan, adopted by the Israeli Knesset in 2013, aims to destroy the Arab “unrecognized” Bedouin villages in Al-Naqab south Israel, displace their inhabitants, strip their ownership of their ancestral home land, and relocate them to other urban townships different from their traditional life style while replacing their communities with Israeli forests, military centers, and Jewish settlements. The plan comes as a governmental reflection of the Jewish National Fund’s plan called “Blueprint Negev” that aims to attract Jewish communities to live and expand in Negev as a start to create a fully Zionist area.
Palestinian Bedouins, live in Al-Naqab since the seventh century and hold legal titles to their lands from the British Mandate and Ottoman Empire, are considered “trespassers on state land” by the Israeli government; thus, denied basic services of electricity, sewage, water, health care, education… despite the fact that current locations of these communities are designed by the state after the Nakbah of 1948 or by the state military orders in 1950s. More than 70,000 Arab Bedouins live in Al Naqab face discriminatory policies and endangered by displacement.
Rapid steps of implementation have been taken by the government since passing the plan in the Knesset. Thousands of houses are being demolished every year in spite of the international community denial and condemnation of the discriminatory plan such as the UN Committee on the Elimination of Racial discrimination and the European Parliament condemnation resolutions calling on Israel to withdraw its plan and stop its implementation due to the serious violations of international law it carries. According to UN statistics, the Israeli forces destructed an average of 10 Palestinian structures a week in 2015, while Haaretz points that the first week of 2017 witnessed a four times multiplication of Palestinian home demolitions comparing to 2016 which itself witnessed demolishing 20 structures a week.
No doubt that the basic rights of Palestinian Bedouins who are citizens to Israel are being violated through the discriminatory policy of Israel against them. Articles of the International Convention for Economic, Social and Cultural Rights, to which Israel is a contracting party, and articles of the Convention of the Elimination of All Forms of Racial Discrimination that demand a respectful living standard, dignity, freedom, adequate and safe housing, equality, and prevention of discrimination are being violated by the Israeli policies in Al-Naqab. However, the ethnicity of Al-Naqab inhabitants along with the forms and nature of the government policies aim to “judaize” Al-Naqab by limiting the growth and presence of its Arab inhabitants on one hand and expanding the Israeli Jewish presence on the other creating a Jewish-majority state suggest that ethnic cleansing is probably being committed all over again.
Ethnic Cleansing Claim
No legal definition or codification
The term “ethnic cleansing” has neither a legal definition nor a specific codification under International Law. Although the UN organs, international organizations, and legal and diplomatic officials use the term in their reports, correspondence, press releases, international trails, resolutions, decisions and academia, no further step has been taken so far to list the term under relevant legal tools and give it one international legal definition.
The term, although has been practiced for many centuries, emerged and was widely used during the 1990s as a reference to the Serb crimes in former Yugoslavia specifically in Bosnia and Herzegovina where mass crimes have been committed on a large scale to blur the Identity of Muslim inhabitants and eliminate their existence as a religious and ethnic group.
The UN Security Council, for example, in its resolution 780 of 1992 on the Former Yugoslavian matter used the term ethnic cleansing without providing a specific definition for it. The preamble of the resolution accused the Serb of committing mass killings and ethnic cleansing crimes. Similarly, resolution 787 adopted by the Security Council in 1992 outlawed the term and considered it a threat to the international peace and a serious violation of International Humanitarian Law. Article 2 of the resolution stated “[UNSC] Reaffirms that any taking of territory by force or any practice of “ethnic cleansing” is unlawful and unacceptable…” while article 7 of the same resolution provided “[UNSC] Condemns all violations of international humanitarian law, including in particular the practice of “ethnic cleansing” and the deliberate impeding of the delivery of food and medical supplies to the civilian population of the Republic of Bosnia and Herzegovina, and reaffirms that those that commit or order the commission of such acts will be held individually responsible in respect of such acts…”
In the council’s resolution 1674 of 2006 on government’s responsibility of protecting civilians in the times of armed conflicts, however, the Security Council listed ethnic cleansing as a violation of international humanitarian law along with war crimes, crimes against humanity, and genocide again without providing a legal definition.
The UN other organs followed the council’s steps in adopting the term in their reports and resolutions. The UN General Assembly’s resolution 242 of 1992 on the crimes of the Serb in former Yugoslavia stated that the Assembly “Strongly condemning the abhorrent practice of “ethnic cleansing”, which
constitutes a grave and serious violation of international humanitarian law… and Expressing grave concern that, despite the relevant resolutions of the Security Council, no effective measure has been implemented to stop the abhorrent practice of “ethnic cleansing”, or to reverse and discourage the policies and proposals that might encourage it…”
paragraph 130 of the final report of the commission of experts conducted pursuant to the SC resolution 780 provides the UN definition of the term by stating “’ethnic cleansing’ is a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas. To a large extent, it is carried out in the name of misguided nationalism, historic grievances and a powerful driving sense of revenge. This purpose appears to be the occupation of territory to the exclusion of the purged group or groups. This policy and the practices of warring factions are described separately in the following paragraphs”
Many academic attempts to define the term were provided since then. The British “Collins English dictionary” defines the term as “the violent removal by one ethnic group of other ethnic groups from the population of a particular area: used esp of the activities of Serbs against Croats and Muslims in the former Yugoslavia.” More official definitions, however, were provided by scholars. Robert Hayden, in his article “Schindler’s Fate: Genocide, Ethnic Cleansing and Population Transfers”, defined ethnic cleansing broadly by stating that the term refers to “rendering an area ethnically homogeneous by using force or intimidation to remove from a given area persons of another ethnic or religious group.” James Rubenstien defines the term in his book “the Cultural landscape: an introduction to human geography” as “systematic forced removal of ethnic and religious groups from a given territory by more powerful ethnic group, with the intent of making it ethnically homogeneous” using different methods such as forced deportation and transfer, rape, mass killings, or intimidation. The differences between the previous definitions again merge from the lack of one legal consensus on the meaning of the term and the kind of acts covered under it. This reflected on the views of courts and legal cases regarding the legal status of the term especially that none of the present treaties and conventions related to international criminal law and international humanitarian law listed the term as is within its articles.
On the other hand, customary International Humanitarian Law has dealt with the term. Rule 129 of the ICRC rules of International Humanitarian Law considered ethnic cleansing an act of displacement and defined it by “Ethnic cleansing” aims to change the demographic composition of a territory. In addition to displacement of the civilian population of a territory, this can be achieved through other acts which are prohibited in and of themselves such as attacks against civilians …, murder …and rape and other forms of sexual violence…These acts are prohibited regardless of the nature of the conflict and have been widely condemned.”
However, the term ethnic cleansing can be partially included, especially in our case, in another crime that is widely covered under international law: deportation and forcible transfer of population. This approximate legal identification of the term puts us in front of three odds regarding ethnic cleansing legal status: ethnic cleansing as a war crime, ethnic cleansing as a crime against humanity, and ethnic cleansing as a form of genocide.
Legal status of the act
- As a War Crime
Article 6 (b) of the Charter of the International Military Tribunal (Nuremberg) states that “deportation to slave labor or for any other purpose of civilian population of or in occupied territory” constitutes a war crime,” similarly, article 49 (1) of the Fourth Geneva Convention on Protecting Civilians in the Times of War prohibits deporting civilians of occupied territories unless rendered by absolute military necessity. Article 147 of the same convention and article 85 (4) (a) of the first protocol related to international armed conflicts 1977 consider such act of forced transfer and deportation of civilian population from the occupied territories to constitute a grave breach of mentioned instruments unless again required by security or military reasons. Article 8(2)(b)(viii) of the Rome Statute on the International Criminal Court considered this act as a war crime.
On the other hand, Additional Protocol II to the Fourth Geneva Convention related to non-international armed conflicts, Article 17 prohibited the act of transfer and deportation of civilian population citizens of the state as long as the act is related to the conflict unless rendered by military or security reasons, while Article 8(2)(e)(viii) of the Rome Statute on ICC considered it a war crime in non-international armed conflicts.
Nonetheless, in our case Al Naqab is considered part of the state of Israel with no armed conflict of any type; therefore, this framing does not apply to the Israeli policies in Al-Naqab.
- As a Crime Against Humanity
Article 7 (1) (d) of the Rome Statute on the ICC considered “deportation and forcible transfer of civilian population” to constitute a crime against humanity providing that “crime against humanity” means any of the [listed acts] when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”
Article 5 (d) of the International Criminal Tribunal of Former Yugoslavia (ICTY) statute lists deportation as a crime against humanity that “The International Tribunal shall have the power to prosecute persons responsible for  when committed in armed conflict, whether international or internal in character, and directed against any civilian population.” On contrary, the International Criminal Tribunal of Rwanda (ICTR) statute in its article 3 (d) did not require the act of armed conflict of any type to consider “civilian deportation” a crime against humanity “when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”
Crimes against humanity are the broadest category of crimes under international humanitarian law. Unlike war crimes, crimes against humanity do not require an armed conflict to take place. However, other conditions are required for a crime to qualify as a crime against humanity; a crime listed in the ICC statute or the statutes of ICTY and ICTR is considered a crime against humanity if committed on a widespread or systematic scale as part of a government or of a de facto authority policy.
In his final report to the UN sub commission on Human Rights 1997, the special rapporteur on Human Rights Dimensions of population transfer used the term ethnic cleansing in relation to population transfer which is considered a crime against humanity.
Applying this criteria to our case, we notice that the Israeli policy of expulsion, systematic destruction, dispossession of land and discrimination against Arab Bedouin citizens of Israel has been a systematic and widespread governmental policy coded in the state’s legislation and practiced for many years now, not to mention the Israeli Government’s official language using terms of “demography”, “demographic threat”, the need to “save” the land from non-Jewish citizens provides a further proof.
- As a Form of Genocide:
Convergence and divergence between the two terms: genocide and ethnic cleansing have been a controversial debate for many years.
Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 defines the crime as “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- (a) Killing members of the group;
- (b) Causing serious bodily or mental harm to members of the group;
- (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- (d) Imposing measures intended to prevent births within the group;
- (e) Forcibly transferring children of the group to another group.”
Although many elements of the crime of genocide can also be found in the ICRC definition of ethnic cleansing especially the grounds on which such acts are committed, the elements of “intent” and “purpose of destruction” are, according to some scholars and international bodies, different. In other words, while the crime of genocide is hard to prove in front of courts due to the hardship of proving “intent”, ethnic cleansing does not require such high standard of proof. Also, ethnic cleansing in some definitions is limited to forced move or transfer of the population and not “full destruction” of it. However, these two differences are merely apparent and can be inaccurate to other international parties. For example, UN General Assembly resolution 47/121 of 1998 considered ethnic cleansing a form of genocide, which was again stressed in the UN sub commission on Human Right’s resolution 1993/17 that stated “Noting that the General Assembly, in its resolution 47/121 of 18 December 1992, and the World Conference on Human Rights, in the special declaration on Bosnia and Herzegovina, stated, inter alia, that the abhorrent policy of ethnic cleansing was a form of genocide… »
Contrary to the UN General Assembly’s view, the International Court of Justice examining Bosnia v. Serbia case noted that ethnic cleansing is not a form of genocide by itself unless meets the requirements set in article 2 of the genocide convention. The court stated that the mere dissolution of the ethnic group does not qualify as genocide, and that the “intent of destroying” the group is a key element of the genocide crime. The court also pointed that the two crimes: “ethnic cleansing” and “genocide” can go parallel and sometime intersect.
In our case, the Israeli intent may be hard to prove; although it is obvious that the Israeli policy towards the Bedouin aims to harden their lives and make it almost impossible for them to stay in their lands and keep their traditional life style provided that no basic services are available to the inhabitants such as electricity, water, sewage, education, health care, roads… in addition to the Israeli practices of spraying herbicides that tend to kill the Arab corps and livestock along with causing health problems to the inhabitants. Nonetheless, this by itself does not show whether the Israeli government tends to destroy the group or merely to dissolute it and transfer its existence.
For many years, Palestinian Bedouin communities holding the Israeli citizenship and living in Al-Naqab southern Israeli have been considered the most vulnerable groups. Discriminatory policies of home demolitions, dispossessions, land destruction, and forcible deportation and transfer have been carried out by the Israeli authorities on a wide scale and systematic practice aiming at clearing Negev of its Arab inhabitants, minimizing their presence and limiting their growth so as to create a Jewish dominated area there.
Expelling the original people of the area and replacing them with Jewish groups and facilities raises the ethnicity question behind the Israeli governmental discriminatory policies. Such question opens the door widely before ethnic cleansing claims.
Because the Israeli deportation and forcible transfer of the Bedouin inhabitants in Al-Naqab has been the official policy of the government coded by legislation and carried out systemically on ethnic, religious and political grounds such policy qualifies as a crime against humanity that is criminalized under international law. Also, if proven, the Israeli intent behind its policies to destroy the existence of the Bedouin Arab communities and replace it with Jewish Israeli one, crime of Genocide can also be found.
Whatever the legal framing of the Israeli policies in Al-Naqab is, such practices are criminal and in violation of the international law. Unfortunately, Israel is not a contracting party to Rome Statute on the ICC; therefore, such crime cannot be brought before the court especially that it happened on Israel’s territories. Nonetheless, universal jurisdiction can be used to bring legal cases against Israel in front of courts that accept such jurisdiction especially that such Israeli policy is considered a crime under international law. Also, efforts can be made in front of the ICJ and the UN other organs; mainly UN Security Council and UN General Assembly to move against Israel and hold it accountable on breaching its international obligations under international law.