VIII. Israels Obligations under International Law, and Comparative Practice
Equality and freedom from discrimination are fundamental human rights norms. The prohibition against discrimination is spelled out in Article 2 of the Universal Declaration of Human Rights237 and codified in the major human rights treaties that Israel has ratified including the International Covenant on Civil and Political Rights (ICCPR),238 the International Covenant on Economic, Social and Cultural Rights (ICESCR),239 the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),240 and the Convention on the Rights of the Child (CRC).241
Israel does not have any constitutional or legislative guarantees of equality. Nor do Israels land laws or the regulations governing the Israel Land Administration and planning authorities prohibit discrimination in allocation of land and housing or promote planning as a means of creating civic equality.
In its February 2007 consideration of Israels report, the Committee on the Elimination of Racial Discrimination (CERD), which oversees states compliance with their obligations under the ICERD, recommended that the State party assess the extent to which the maintenance of separate Arab and Jewish sectors may amount to racial segregation.242
Regarding land allocation and the role of selection committees in governing admission to small communities, the CERD recommended that the State party takes all measures to ensure that State land is allocated without discrimination, direct or indirect, based on race, colour, descent, or national or ethnic origin. The State party should assess the significance and impact of the social suitability criterion in this regard.243
Alexander Kedar, an Israeli law professor, has documented Israels discriminatory treatment of Bedouin regarding access to land, and identified both direct and indirect forms of discrimination. The right to equality is also infringed when suspicious use is made of group membership as a criterion for providing social benefits, and in cases in which the relevant criterion is perceived as neutral, but its application creates discriminatory results, he writes. For example, allocation of land rights in the Negev, particularly the granting of the right to live in suburbs and on individually-owned farms to Jews only, grossly violates, in my opinion, the principle of equality set forth in international law.244
Israel has ratified a number of international human rights treaties that guarantee the right to adequate housing and to privacy, protect against forced evictions, and allow for choice in place of residence. Yet Israel has failed to uphold these obligations with regard to its Bedouin population. The ICESCR obligates states parties to use all appropriate means to promote and protect the right to housing and to protect against forced evictions.
In its General Comment 4, the Committee on Economic, Social and Cultural Rights, which monitors the compliance of states parties to the ICESCR, held that the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over ones head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity.245 The General Comment goes on to list the factors that are necessary for the provision of adequate housing, including legal security of tenure, cultural adequacy, and the availability of services and infrastructure.
Human Rights Watchs visits to unrecognized villages and interviews with Bedouin homeowners found that Bedouin in the unrecognized villages live in circumstances wholly devoid of security, peace, and dignity. Israels planning apparatus has denied any legal standing to villages in which tens of thousands of Bedouin live and has, in the process, denied Bedouin citizens security of tenure, adequate services, infrastructure, and habitable housing. As a result, Bedouin are reluctant to invest in their current housing to make it habitable, knowing that it may be demolished, and are compelled to live in squalid and inadequate conditions following demolitions.
General Comment 4 also stipulates:
Since 1948, Israel has developed few residential opportunities for Negev Bedouinjust the seven government-planned townships and the nine newly recognized or created villages. In theory, Bedouin can apply to live in Jewish rural or semi-agricultural villages, but selection committees closely guard the demographic profiles of these small communities and consistently reject non-Jewish applicants based on lack of suitability. The ILA, in turn, allocates state land on the basis of the selection committees recommendations. Thus the state effectively denies Bedouin equal access to state land as well as suitable options regarding where they want to live.
Many Bedouin described to Human Rights Watch the ways in which planning authorities and police aggressively entered their home and land, with no prior warning and without providing of any legal order for entry, in order to hand out orders, take measurements of the property, and inspect for new construction. These actions often amount to arbitrary interference with Bedouins privacy, family and home.
The Economic and Social Council, in its General Comment 4, has written:
In Israel, large sectors of the population do enjoy security of tenure, protected by property laws. However, Bedouin of the unrecognized villages suffer disproportionately from lack of tenure. Despite the states central role in creating this situation, and despite the wide gap between the Bedouins lack of tenure and that enjoyed by the rest of the population, the government has taken insufficient steps to provide the Bedouin secure tenure. In fact, the state has exploited the Bedouins vulnerability in this regard through the use of punitive enforcement measures.
In General Comment 4, the Committee on Economic, Social and Cultural Rights recognized the importance of accessibility to land as a housing resource. In relation to disadvantaged groups, the General Comment states: Disadvantaged groups must be accorded full and sustainable access to adequate housing resources . Within many States parties increasing access to land by landless or impoverished segments of the society should constitute a central policy goal.248
In Israel the opposite appears to be happening. While the majority population has access to land through the expansion of existing communities and the development of new ones, Bedouin cannot even win recognition for most of the existing unrecognized villages.
Regarding forced evictions, the Committee on Economic, Social and Cultural Rights has written that instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law.249 In its General Comment 7, on forced evictions, the Committee noted, Women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction.250 The Committee also emphasized the governments obligation to ensure there is no discrimination when evictions do occur and that those affected by evictions be consulted, offered feasible alternatives and adequate compensation, and provided with legal remedies and procedures.251 In none of the cases documented in this report did individuals receive compensation for home demolitions; nor did they believe they had real legal remedies, given the serious disincentives for approaching the courts. Furthermore, many of the individuals or communities slated for demolition or eviction testified to the fact that even where they had attempted to cooperate with the authorities to find adequate alternatives, their efforts had failed.
General Comment 7 also states, In cases where eviction is considered to be justified, it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality.252 Home demolition for lack of a building permit, in circumstances where the owner has no opportunity to obtain such a permit, is manifestly unreasonable and disproportionate to any legitimate aim that the demolitions are alleged to be pursuing.
General Comment 7 states that individuals facing eviction should receive adequate prior warning, and that the evictions should not result in homelessness. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.253
Bedouin in the unrecognized villages rarely receive prior notice regarding the specific time or date that a demolition will take place and do not know when or even if demolition will follow an official demolition order. The authorities do not offer Bedouin temporary shelter or alternative accommodation after a demolition, unlike other Israeli victims of demolition or evacuation, such as the Gaza settlers.
Finally, General Comment 7 notes the importance of appropriate information since effective monitoring of the right to adequate housing, either by the Government concerned or by the Committee, is not possible in the absence of the collection of appropriate data.254 Basic information on the scope and trends of demolitions in Israel is not publicly available.
During the past two decades states and indigenous peoples have been working to develop a UN Declaration on the Rights of Indigenous Peoples. In June 2006, the UN Human Rights Council adopted a Draft Declaration on the Rights of Indigenous Peoples and recommended its adoption by the General Assembly.255 While the Draft Declaration is not legally binding and will be subject to significant debate and negotiation following its adoption, it reflects the evolution of international discussion on norms around indigenous rights that may be codified in a binding document in the future. The Draft Declaration states that indigenous peoples have the right to own, develop, control and use the lands which they have traditionally owned or otherwise occupied or used as well as the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources and the right to effective measures by States to prevent any interference with, alienation of, or encroachment upon these rights.256 While the scope of these rights is to be balanced with competing claims including those of the public good, the core right to protection of indigenous lands and property is clear.
In some regions with large indigenous populations, such as the Americas, regional human rights treaties have more explicit guarantees of the right to property, and regional human rights courts have reached important decisions regarding indigenous land rights. In the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Inter-American Court of Human Rights ruled that there is an international human right to enjoy the benefits of property, including the right of indigenous people to the protection of their customary land and resource tenure and to enjoy the lands that they have traditionally used and occupied.257
One of the difficulties of creating a universal legal framework to protect the rights of indigenous peoples lies in the fact that there is no single, universally accepted definition of indigenous people. However two basic definitional approaches have gained prominence in the international community: (1) a subjective definitional approach, through which indigenous groups are allowed to identify themselves as indigenous, and (2) an objective approach, through which classification as indigenous is pursuant to a group or individual meeting objective, set characteristics such as a distinct language, culture, and tribal affiliation, and having been or descended from the original inhabitants of the territory at the time of conquest or colonization. Bedouin in Israel meet many of the objective criteria, and increasingly segments of the population self-identify as indigenous. In trying to reach a final settlement with its Bedouin population on the scope of land ownership, use and possession in the Negev, Israel would do well to consider the comparative practice of other states as detailed in the next section.
In some other states where there is a conflict over indigenous lands, governments and courts have attempted to address these claims and provide redress where there have been historical injustices. For example, governments in New Zealand, Canada, and Australia have established national processes, ranging from commissions to tribunals, to address the problem, and their national courts have passed precedent-setting judgments recognizing indigenous land rights and the concept of native title.258
In New Zealand, an Act of Parliament in 1975 established a permanent commission of inquiry, the Waitangi Tribunal. The act charges the tribunal with investigating and making recommendations on claims brought by indigenous Maori relating to a variety of issues. This tribunal process has settled many aboriginal land claims, returning crown (state) land to its original Maori owners or instructing the government to pay compensation.
In Canada, in 1991, then-Prime Minister Brian Mulroney created the Royal Commission on Aboriginal Peoples (RCAP). RCAP issued its five-volume, 4,000-page report in 1996 with 440 recommendations calling for sweeping changes including new legislation and institutions, additional resources, a redistribution of land, and the rebuilding of Aboriginal nations, governments, and communities. In addition, a precedent-setting Supreme Court of Canada decision, Delgamuukw v. British Columbia  3 S.C.R. 1010, addressed for the first time the notion of aboriginal title. In this case, the court ruled in favor of the indigenous peoples claim of ownership and legal jurisdiction over 133 individual territories, a total of 58,000 square kilometers of northwestern British Columbia.
Australias High Court set an important precedent in its June 3, 1992, decision in Mabo v Queensland. In this case, the aboriginal Meriam people sought recognition that they were the owners or possessors of the Murray Islands in Queensland, based on long possession. The Queensland government argued that after colonization the British government had acquired ownership of all the territory. In the decision, the majority of justices held that there was a concept of native title in common law and that the aborigines native title to the area was not extinguished upon conquest.
In response to the Mabo judgment, the Australian Federal Parliament enacted the Native Title Act of 1993, which it has amended several times since. The act created a statutory definition of native title based on the High Court decision, and enabled indigenous people to make a claim for land with which they had a continuous and traditional association. The act also created a Native Title Tribunal, under the Attorney Generals office, which mediates native title claims under the direction of the Federal Court of Australia. The Tribunal has made determinations in 95 native title cases; in 64 of those the court determined that native title existed in all or part of the disputed area. An additional 595 determinations are still pending.259
In addition the Native Title Act gave native title holders the right to negotiate Indigenous Land Use Agreements (ILUAs), which are voluntary agreements between a native title group and others, such as mining interests or development projects about the use and management of land and waters. The agreement is legally binding once finalized. Indigenous peoples of Australia have negotiated 268 of these.260
According to Fred Chaney, the outgoing deputy president of the Native Title Tribunal, the court has determined that indigenous groups in substantial areas of Western Australia have exclusive possession native title and that in other, substantial areas of the country indigenous people hold partial native title.261
These examples illustrate what is possible when governments make a good faith attempt to negotiate just solutions to contested land claims. Israel has an opportunity to create such a mechanism to adjudicate the outstanding claims in the Negev.
The current settlement of title process described in Chapter III is not a legitimate mechanism in the eyes of most Bedouin, who see the renewed litigation as an attempt to dispossess them of their small remaining claims. Currently many Bedouin representatives and community organizations are advising Bedouin not to engage in the process if the inevitable outcome is losing their rights to their land. Another problem is the length of time that has passed since the original registration of claims to title process in the 1970s. Sometimes the original claimants have died, and the number of descendants entitled to a share of the original claim has grown. In addition, the current process is far from transparent. Most Bedouin organizations said the first time they had heard of the renewed government counter-claims lawsuits was when Bedouin villagers had approached them for advice after receiving notice of one of these lawsuits. The government never formally announced that it was restarting the process, nor gave any information on how the process would work. This would have allowed community organizations and lawyers to assess various legal strategies, consult with outside experts, and prepare their clients.
Rather than litigating contested land claims in Israeli courts under restrictive land legislation that ensures that Bedouin cannot meet the evidentiary burden for ownership, Israel should establish a new, independent mechanism to negotiate with the community, such as a special tribunal. This process may entail establishing an independent commission to study the problem and make recommendations for the mechanism. The commissions work and any subsequent mechanism should be transparent, participatory, and inclusive.
237 Article 2 states, Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948).
238 Article 2.1 states that State Parties will ensure that the rights in the Covenant will be ensured without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200a (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Israel on October 3, 1991.
239 Article 2.2 states that State Parties will guarantee that the rights in the covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, acceded to by Israel on October 3, 1991.
240 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, acceded to by Israel on January 1, 1979.
241 Article 2.1 states that States Parties will ensure the rights in the Convention to each child within their jurisdiction without discrimination of any kind irrespective of the childrens or his or her parents or legal guardians race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Convention on the Rights of the Child, adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/RES/44/25, entered into force September 2, 1990, acceded to by Israel on October 3, 1991.
242 Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, June 14, 2007.
244 Alexander Kedar, "Land Settlement in the Negev in International Perspective," Adalah Newsletter, vol. 8, September 2004.
245 UN Committee on Economic, Social and Cultural Rights, The right to adequate housing, General Comment No. 4, UN Doc. HRI/GEN/1/Rev.7 (1991), para. 7.
246 Ibid., para. 9e.
247 Ibid., para. 8a.
248 Ibid., para. 8e.
249 Ibid., para. 18.
250 UN Committee on Economic, Social and Cultural Rights, The right to adequate housing (art. 11.1): forced evictions, General Comment No. 7, UN Doc. HRI/GEN/1/Rev.7 (1997), para. 10.
251 Ibid., para. 13.
252 Ibid., para. 14.
253 Ibid., para. 16.
254 Ibid., para. 21.
255 In 1995 the UN Commission on Human Rights adopted resolution 1995/32 to create an open-ended inter-sessional Working Group with the sole purpose of elaborating a draft declaration on the rights of indigenous peoples. The Working Group has convened 11 sessions to date and drafted the Draft Declaration adopted by the UN Human Rights Council (the successor to the UN Commission on Human Rights) in June 2006. Resolution 2006/2, adopted June 29, 2006.
256 Draft Declaration, article 26.
257 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001).
258 According to Australias Native Title Act of 1993, The expression native title means the communal, group or individual rights or interests of Aboriginal people in relation to land or waters, where: a. the rights and interests are possessed under the traditional laws and customs observed, by the Aboriginal people ; and b. the Aboriginal peoples have a connection with the land or water; and c. the rights and interests are recognized by the common law of Australia.
259 National native title statistics, Talking Native Title, Issue 22, pg. 8, March 22, 2007, http://www.nntt.gov.au/metacard/files/TNT22/issue22_march07.pdf (last accessed on March 25, 2007).
261 Native Title has been the greatest single agent of positive change, Talking Native Title, Issue 22, March 22, 2007, http://www.nntt.gov.au/metacard/files/TNT22/issue22_march07.pdf (accessed March 25, 2007), p. 4.