Abstract
Colonial legal (dis)continuities in Palestine: The Negev lands
On the 16th of February 1921 the British civil administration in Palestine enacted what seemed to be a minor amendment, known as the mawat Land Ordinance, to the 1858 Ottoman Land Code (OLC), which the British had officially maintained with their occupation of Palestine. More than 90 years later, on January 2012, the Israeli authorities demolished the Arab Palestinian village of Al-Araqib in the Negev for the 30th time, for being “illegal.” The “illegality” of the village is directly linked to 1921 British ordinance, as well as to the 1858 OLC. Israeli authorities argue that the land, where the village is built, is mawat land (dead land: remote, uncultivated and unoccupied lands), thus it is a state land. Under this legal claim, the very existence of the Bedouin-Arab citizens in Al-Araqib, and by extension in 45 other villages in the Negev, has been outlawed and its residents have been labeled trespassers.
Through a legal and historical approach, the paper attempts to study the origins and the emergence of the Israeli mawat discourse, and its use of the Ottoman and British laws. The analysis utilizes both sources from the British Mandate as well as Israeli periods. I relay primarily on the Palestine Supreme Court case law on mawat land and on land disputes in the Negev, and then explore the Israeli case law on the same issues. As appear from the historical and legal evidence, the constructed Israeli legal framework does not suit the Negev legal and historical narrative that existed for centuries, and is flawed and rather manipulative.
The Negev case serves as a good case study to illustrate the impact of the transformation of Palestine’s land law under the British and later its reinterpretation and use by the Israeli government. The legal continuum between the three regimes (Ottoman, British and Israeli), which exists in our case, provides a good opportunity to explore the use and application of land laws in different historical contexts. It also blurs the dichotomy between colonial and non- or post-colonial laws, and challenges the tendency to separate Ottoman, British and Israeli periods and their respective legal histories from each other. The Negev case further complicates our understanding of British legal policies in Palestine, the dynamics between the formal law and customary tribal law, and contributes to a better understanding of contemporary Israeli policies in the Negev.
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