Dangerous implications of Israeli Supreme Court decision to allow forced displacement of Atir-Umm al-Hiran for remaining unrecognized Bedouin villages in Naqab

1. If it can happen to Atir-Umm al-Hiran, it can happen to the other unrecognized villages…

Indeed, the forced displacement of Atir-Umm al-Hiran can be regarded as a ‘hard’ legal case for the state. In demolition and evacuation cases, the state generally makes two kinds of legal arguments against those Bedouin whom it wants to displace from their land: (1) that they are “trespassers” on state land, and/or (2) that the land on which they live is not suitable for construction or residential use.

In the case of Atir-Umm al-Hiran, however, both of these arguments were disproved in court. The SCT recognized that the residents were not illegal trespassers – as initially claimed by the state – but were moved there in 1956 by Israeli military order, after being displaced from their original village of Khirbet Zubaleh, which they had cultivated for centuries. Here, the SCT followed the findings of the lower courts, which ruled that the villagers were not trespassers based on archival documents provided by Adalah, at earlier stages of the litigation. Secondly, the land on which Umm al-Hiran sits is zoned for residential use:  it forms part of a larger residential area in the plan for the new Jewish town of Hiran, set to be built on its ruins. The Be’er Sheva Metropolitan Plan of 2010 also zoned the land in question as residential land; however, the plan completely disregards the existence of Atir-Umm al-Hiran, along with all of the other 35 unrecognized Bedouin villages in the Naqab. Hence, in terms of the practical and legal facts, Atir-Umm al- Hiran should have been a straightforward case in which the SCT decided in favor of the villagers and ruled against the destruction of their village.

Nevertheless, the SCT ruled that the people of Umm al-Hiran – whom it acknowledged not to be trespassing on the land, which has been designated for residential use – can be evicted from their land. The Court concluded that the state had merely allowed the Bedouin citizens in Atir-Umm al-Hiran to use the land, which was state land, and that the state was therefore within its rights to revoke this decision and retake the land to do with it as it wished, even after 60 years of continuous land use and residence. Thus, according to the SCT’s ruling, the residents of Atir-Umm al-Hiran had acquired no ownership status or property rights to their land over the course of their decades of residence and land use.

2. … even in the absence of an essential public need

Following the ruling, the state is authorized to go ahead with its plans to destroy Atir-Umm al-Hiran and forcibly displace its Bedouin residents, in the absence of an essential public need,3 and indeed for the explicitly discriminatory purpose of building in its place the new, Jewish town of Hiran. And this is what makes the SCT’s unprecedented decision so dangerous: the implication of the state’s legal victory is that if the people of Atir-Umm al-Hiran can be evicted from their land, then the residents of almost all of the other unrecognized villages in the Naqab can also be evicted, as they are all residing on state land and most of them are considered as illegal trespassers by the state. Furthermore, they can be evicted for a clearly discriminatory purpose, in violation of their constitutional rights to property, dignity and equality.

3. The Umm al-Hiran decision goes beyond existing Prawer legislation

The SCT’s ruling and the legal precedents created by the Atir-Umm al-Hiran case go beyond the scope of even the discriminatory Prawer Plan for the forcible displacement of tens of thousands Bedouin citizens of Israel from their land and homes in the unrecognized villages. The Prawer Plan and associated legislation, which has been frozen since December 2013, is based on the false premises that the Bedouin have no  legal claim to their ancestral land in the Naqab and conceives of the residents of these villages as illegal trespassers on state land.5 On this basis, it mandates their mass dispossession and relocation.

The SCT’s ruling in the Atir-Umm al-Hiran case takes an even more extreme position than the unjust and discriminatory Prawer Plan as it legalizes the forcible displacement of citizens of Israel whom the Court itself has acknowledged are non-trespassers. It further allows for their displacement from residential land in the absence of an essential public purpose, and indeed for an explicitly discriminatory purpose. Therefore, while the Prawer legislation may go forward in some form, it is no longer necessary for the state to pursue it to ensure the eviction of the remaining unrecognized villages. The Atir-Umm al-Hiran ruling gives the state broader legal scope for destroying these communities. And the SCT’s decision would render the chance of launching a successful legal challenge against Prawer legislation negligible.

4. The Supreme Court’s ruling is legally flawed

The Supreme Court’s ruling in the Atir-Umm al-Hiran case failed to conform to the law. Even the minority opinion of Justice Daphne Barak-Erez recognized that the ruling “infringes on existing laws” and that the decision to evict the residents was “unreasonable”.

• The SCT disregarded the violations of the constitutional rights of Atir-Umm al-Hiran’s residents. Justice Elyakim Rubinstein wrote in the majority decision dismissing the petition that there had been no violation of constitutional rights. He added that even if there had been a violation of constitutional rights, it was proportionate since the residents had been offered a reasonable “alternative” solution in the form of relocation to the government-planned Bedouin town of Hura. The SCT did not deliberate  on the violations of the petitioners’ constitutional rights to property, dignity and equality.
• In this respect, the decision stands in stark contradiction to the SCT’s previous decision on petitions challenging the Disengagement Plan Implementation Law (Gaza) of 2005 that established a mechanism for compensating the settlers for the loss of their homes, land and businesses.6 In this decision, the SCT decided that the evacuated Jewish Israeli settlers enjoyed constitutional protection for a recognized violation of their property rights, despite the fact that the Gaza settlements are illegal under international law, that the settlers had moved there voluntarily, and that the settlements were always temporary in nature. It confirmed that a violation of the settlers’ constitutional right to dignity had taken place.
• The Court relied on incorrect statements by the state. The SCT’s conclusion that the decision to forcibly displace the residents of Atir-Umm al-Hiran was fair and reasonable was based on the state’s “alternative” solution of relocation to Hura. However, and setting aside the overcrowding and dire socio-economic conditions in Hura, the Hura Municipality has stated that it could not allocate any plots of lands to the residents of Atir-Umm al-Hiran due to lack of space. Thus, the SCT did not properly  apply the principle of reasonableness and fairness since it did not examine whether the state’s decision was made on the basis of facts and actual proposals offered, which it was not.
• The SCT failed to address basic legal questions raised by the petitioners. Crucially, the SCT did not ask why the new town had to replace the Arab village, when there were vast and empty lands in the surrounding area. The SCT did not compel the state to consider providing the Bedouin residents a plot of land to live on as part of the new town of Hiran. The Court also ignored the Bedouin residents’ political, social and historical roots to the land.
• Procedurally, once the SCT had refuted the state’s assumption that the people of Atir-Umm al-Hiran were trespassers, it should automatically have resulted in a decision to cancel the state’s demolition orders against them, which was not the case.

5. The ruling has troubling parallels to the Supreme Court’s decision in the case of Susiya, a West Bank Bedouin village across the Green Line

On the same day as it issued its ruling on Umm al-Hiran, 5 May 2015, the SCT effectively sealed the fate of the ancient Bedouin village of Susiya, located close to the Green Line in the south Hebron hills in the West Bank. In its discriminatory decision, the SCT ruled that the state can now demolish and forcibly displace  all c. 350 Bedouin residents of Susiya. The SCT also (and unusually) denied a request for an interim order  to freeze the implementation of the demolition pending a hearing on a petition against the demolition. The village can now be demolished at any moment. This parallel case is very troubling in that it highlights the state’s common policy of forcibly displacing the Bedouin on both sides of the Green Line.