Published online by Cambridge University Press: 05 March 2013
In the case 9535/06 Abadallah Abu Massad and Others v Water Commissioner and Israel Lands Administration (2011), the Israeli Supreme Court ruled that the right to water deserves constitutional protection under Israel's Basic Law: Human Dignity and Freedom. The Court also found support for the right to water under both international human rights law and Israeli statutory law. At the same time, the Court held that the right to water is not absolute but must be balanced against the rights of the state. The case was brought by residents of unrecognised Bedouin villages in the Negev, a desert region in southern Israel, who do not have access to household water. The Court found that in exercising its discretion regarding additional water access points, the Israeli Water Authority could consider the ‘illegal’ nature of these villages. Applying the criteria of reasonableness and proportionality, the Court ultimately affirmed the Israeli Water Authority's policy in unrecognised villages in the Negev. Despite this administrative deference, the invocation of constitutional and international human rights law raises the level of scrutiny that should be applied to a review of the Israeli Water Authority's exercise of discretion. The Court's opinion is coloured and influenced by long-standing land disputes between the indigenous Bedouin population and the State of Israel. Drawing on empirical research conducted in December 2011, the analysis attempts to place the Abu Massad decision in its proper historical and political context. The dispute over land in the Negev can be traced back to the days of the Ottoman Empire. More recent efforts by the Israeli government as set out in the Goldberg Report and the Prawer Plan, and the international community's response to these efforts, are discussed. In light of the history and current political context, it may be prudent for the Israeli Water Authority to re-assess the effectiveness of its existing water policy in unrecognised Bedouin villages in the Negev.
1 CA 9535/06 Abadallah Abu Massad and Others v Water Commissioner and Israel Lands Administration (not reported, 5 June 2011). See Adalah, ‘Israeli Supreme Court: Arab Bedouin in the Unrecognized Villages in the Negev Have the Right to “Minimal Access to Water”’, 6 June 2011, http://adalah.aiforms.com/eng/?mod=articles&ID=1634.
2 The list of interviewees is on file with the authors.
3 Shmueli, Deborah F and Khamaisi, Rassem, ‘Bedouin Communities in the Negev’ (2011) 77 Journal of the American Planning Association 109CrossRefGoogle Scholar, 111 (describing the Negev, which constitutes the southern half of Israel, as an ‘arid expanse stretching southward from Kiryat Gat and Ashdod to the Gaza Strip and Sinai’).
4 Gelpe, Marcia, ‘Constraints on Supreme Court Authority in Israel and the United States: Phenomenal Cosmic Powers; Itty Bitty Living Space’ (1999) 13 Emory International Law Review 493, 522–23Google Scholar (‘In Israel, the Supreme Court also reviews the legality of administrative actions. For historical reasons, the Supreme Court of Israel, sitting as the High Court of Justice, sits as the court of first instance in petitions for review of most administrative decisions’).
5 See below Section 3.1; Ismael Abu-Saad, ‘The Indigenous Palestinian Bedouin of the Naqab: Forced Urbanization and Denied Recognition’ in Nadim N Rouhana and Areej Sabbagh-Khoury (eds), The Palestinians in Israel Readings in History, Politics and Society (Mada al-Carmel (Arab Center for Applied Social Research) 2011) 121; Ilana Meallem, Yaakov Garb and Julie Cwikel, ‘Environmental Hazards of Waste Disposal Patterns – A Multimethod Study in an Unrecognized Bedouin Village in the Negev Area of Israel’ (2010) 65 Archives of Environmental and Occupational Health 230.
6 Abu Massad (n 1) para 3.
8 The factual history set out in the court decision is supplemented by first-hand knowledge gained through interviews and field visits conducted in Israel in December 2011.
9 Abu Massad (n 1) para 1.
10 The information in this paragraph is from personal knowledge as result of field research conducted in Israel in November and December 2011.
11 Personal knowledge gained from interviews and field visits.
12 ibid; Orly Almi, ‘Water Discipline: Water, the State and the Unrecognized Villages in the Negev’, Physicians for Human Rights – Israel, May 2006, 11, http://www.phr.org.il/uploaded/articlefile_1164626037675.pdf.
14 Abu Massad (n 1) para 3.
20 ibid para 12. See also Rabia, Rawia Abu, ‘Redefining Polygamy Among the Palestinian Bedouins in Israel: Colonialism, Patriarchy, and Resistance’ (2011) 19 American University Journal of Gender, Social Policy and Law 459, 481Google Scholar (‘Half of the Bedouins live in these [unrecognized] villages, which do not have basic services such as paved roads, running water, garbage disposal, health care services, and an education system, because the State of Israel denies them’).
21 Abu Massad (n 1) para 40.
24 This law is sometimes translated into English as the Basic Law: Human Dignity and Liberty. See, eg, Bracha, Baruch, ‘Constitutional Upgrading of Human Rights in Israel: The Impact of Administrative Law’ (2001) 3 University of Pennsylvania Journal of Constitutional Law 581Google Scholar.
25 Hirschl, Ran, ‘Israel's “Constitutional Revolution” – The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order’ (1998) 46 American Journal of Comparative Law 427, 429CrossRefGoogle Scholar; Fox, Gregory H and Nolte, Georg, ‘Intolerant Democracies’ (1995) 36 Harvard International Law Journal 1, 34Google Scholar. See also Gelpe (n 4) 500–06 (providing an overview of Israel's Basic Laws).
26 Hirschl, ibid 429.
27 Dotan, Yoav, ‘The Spillover Effect of Bills of Rights: A Comparative Assessment of the Impact of Bills of Rights in Canada and Israel’ (2005) 53 American Journal of Comparative Law 293, 304CrossRefGoogle Scholar.
28 Raday, Frances, ‘Self-Determination and Minority Rights’ (2003) 26 Fordham International Law Journal 453, 470Google Scholar.
29 Gelpe (n 4) 517, 530–32.
30 ibid 517. See also Weinshall-Margel, Keren, ‘Attitudinal and Neo-Institutional Models of Supreme Court Decision Making: An Empirical and Comparative Perspective from Israel’ (2011) 8 Journal of Empirical Legal Studies 556, 577CrossRefGoogle Scholar (‘The 1992 Basic Laws state that these [certain] rights cannot be violated, except under specified circumstances. Three years later, the ISC handed down a precedential ruling according to which a law that did not meet these new constitutional requirements could be invalidated by the Court (CA 6821/93 Mizrachi Bank Ltd v Migdal 49(4) 221; Kretzmer 1996 [ie Kretzmer, David, ‘The New Basic Laws on Human Rights’ in Itzhak, Zamir and Allen Zysblat (eds), Public Law in Israel (1996) 141–75]'Google Scholar).
31 Abu Massad (n 1) para 22. See also Dotan (n 27) 306 (noting that Basic Law: Human Dignity and Freedom ‘comprises certain important human rights within the boundary of constitutional protection, including the right to self-dignity, free movement, privacy, and property. It also contains protections against arbitrary arrest and search and seizure’); Rao, Neomi, ‘On the Use and Abuse of Dignity in Constitutional Law’ (2008) 14 Columbia Journal of European Law 201, 202Google Scholar (‘In the wake of the horrors of World War II, the international community settled on “human dignity” as the focal point for human rights and constitutional protections’).
32 Basic Law: Human Dignity and Freedom, 1992 (Israel); Gelpe (n 4) 509–10 (noting that dignity has been interpreted broadly at times to include, for example, the right to wear a beard).
33 Abu Massad (n 1) para 21 (citing Legislative Appeal 3829/04 Twito v Municipality of Jerusalem 2004 PD 59(4) 769, 779).
35 ibid para 23. See also Dotan (n 27) 315 (noting that after the formation of the 1992 Basic Laws, the Israeli Supreme Court adopted a ‘Constitutional style’ rhetoric in some landmark decisions, such as those involving sex-based discrimination).
36 Abu Massad (n 1) para 24. See also Sweet, Alec Stone and Mathews, Jud, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 72, 131Google Scholar (describing the history of proportionality adjudication in Israeli jurisprudence, including key Israeli Supreme Court cases such as HCJ 361/82 Hamri v Commander of Judea and Samaria 1982 PD 36(3) 439, CA 6821/93 United Mizrachi Bank Ltd v Migdal Cooperative Village 1995 PD 49(4) 221, and Beit Sourik Village Council v Government of Israel 2004 PD 58(5) 807).
37 Somek, Alexander, ‘The Deadweight of Formulae: What might have been the Second Germanization of American Equal Protection Review’ (1998) 1 University of Pennsylvania Journal of Constitutional Law 284Google Scholar fn 1. See also Barak, Aharon, ‘Response to the Judge as Comparatist: Comparison in Public Law’ (2005) 80 Tulane Law Review 195Google Scholar (discussing the importance of comparative law in Israeli Supreme Court jurisprudence).
38 Abu Massad (n 1) para 19.
39 Economic and Social Council, Committee on Economic, Social and Cultural Rights, ‘Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, The Right to Water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)’ UN Doc E/C.12/2002/22) (2002) (The Right to Water);
40 Zubaty, Rebecca R, ‘Foreign Law and the US Constitution: Delimiting the Range of Persuasive Authority’ (2007) 54 UCLA Law Review 1413 fn 235Google Scholar (noting that the Israeli Supreme Court routinely employs law clerks to advise the justices on customary international law).
41 Gelpe (n 4) 506.
42 Abu Massad (n 1) para 29.
43 The Right to Water (n 39).
44 The Human Right to Water and Sanitation, UNGA Res 64/292, 3 August 2010.
45 United Nations Department of Information, News and Media Division, ‘General Assembly Adopts Resolution Recognizing Access to Clean Water, Sanitation as Human Rights, by Recorded Vote of 122 in Favour, None Against, 41 Abstentions’, 28 July 2010, http://www.un.org/News/Press/docs/2010/ga10967.doc.htm; United Nations Human Rights Council, Resolution adopted by the Human Rights Council 15/9 Human Rights and Access to Safe Drinking Water and Sanitation’ UN Doc A/HRC/RES/15/9 (2010).
47 Abu Massad (n 1) para 29.
49 See, eg, United Nations Special Rapporteur on the Rights of Indigenous People, James Anaya, ‘Annex VI: Israel: Situation of Unrecognized Bedouin Villages in the Negev Desert’, http://unsr.jamesanaya.org/casos-2011/06-israel-situation-of-unrecognized-bedouin-villages-in-the-negev-desert, UN Doc A/HRC/18/35/Add.1 (2011); Gruenberg, Yehuda, ‘Note: Not All Who Wander Should Be Lost: The Rights of Indigenous Bedouins in the Modern State of Israel’ (2008) 34 Brooklyn Journal of International Law 185, 196–202Google Scholar (discussing Israel's obligations under international law towards its indigenous Bedouin population).
50 Abu Massad (n 1) para 30.
52 See Aronson, Ori, ‘Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts’ (2010) 43 University of Michigan Journal of Law Reform 971 fn 189Google Scholar (‘Israel is actually a curious case, since it combines centralized and diffuse systems of judicial review: when it sits as the High Court of Justice, the Supreme Court hears constitutional (and some administrative) cases as a court of first instance, admitting (mostly written) evidence, and deciding thousands of petitions every year; however constitutional claims may also be brought through the regular course of litigation, beginning at a lower trial court and eventually reaching the Supreme Court sitting as the High Court of Appeals (the same justices occupy both roles)’).
53 See Bracha (n 24) 631–42 (discussing the nature of administrative discretion and identifying four relevant criteria for judicial review: relevance, reasonableness, proportionality and equality); Gelpe (n 4) 524 (noting that in reviewing the legality of administrative action, the Israeli Supreme Court may consider a number of key factors, including whether ‘the administrative authority had statutory authorization to act in the matter, followed the proper procedure, considered the proper factors in reaching its decision, or violated a basic value, or individual right, without express statutory authority to do so’); Goodman, Josh, ‘Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel’ (2009) 32 Hastings International and Comparative Law Review 477, 513Google Scholar (noting that a state administrative body ‘must adhere to norms of administrative law, including reasonability, proportionality, and procedural adequacy in decision-making’).
54 Zamir, Itzhak, ‘Administrative Law’ in Zamir, Itzhak and Colombo, Sylviane (eds), The Law of Israel: General Surveys (Harry and Michael Sacher Institute for Legislative Research and Comparative Law, the Hebrew University of Jerusalem 1995) 51–52Google Scholar.
55 Bracha (n 24) 634 (noting that an administrative authority in Israel must take into account all considerations relevant to exercising its power).
56 Tamir, Michal, ‘Public Law as a Whole and Normative Duality: Reclaiming Administrative Insights in Enforcement Review’ (2006) 12 Texas Journal on Civil Liberties and Civil Rights 43, 64Google Scholar (citing Zamir (n 54) 70).
57 Abu Massad (n 1) para 42.
58 Amara, Ahmad and Miller, Zinaida, ‘Unsettling Settlements: Law, Land, and Planning in the Naqab’ in Amara, Ahmad, Abu-Saad, Ismael and Yiftachel, Oren (eds), Indigenous (In) Justice: Human Rights Law and Bedouin Arabs in the Naqab/Negev (Harvard University Press 2012) 81–89Google Scholar. See also Section 3.1.1.
59 Abu Massad (n 1) para 42.
60 See Rao (n 31) 237 (‘Evaluating a government's justification for infringing on a right will necessarily require going through the state's various rationalizations for its actions. Modern constitutional adjudication, therefore, often turns on policy debates, rather than the definition and interpretation of rights’); Sweet and Mathews (n 36) 77 (noting that proportionality analysis ‘does not camouflage judicial lawmaking. Properly employed, it requires courts to acknowledge and defend – honestly and openly – the policy choices that they make when they make constitutional choices’); Tamir (n 56) 68 (noting that proportionality in Israel is ‘one of the main instruments for judicial review of discretionary power. Proportionality emerged about fifteen years ago as a new ground of administrative review, although it had been implicit long before. The Supreme Court held that even where the balance of interests allows the authority to restrict a human right, the power should be exercised in proportion to need or danger. To this end, the authority must take into account the legislative purpose and the particular circumstances of the case’).
61 Bracha (n 24) 636; Tamir (n 56) 68 (‘Proportionality emerged about fifteen years ago as a new ground of administrative review, although it had been implicit long before’). See also Litwack, Jason, A Disproportionate Ruling for All the Right Reasons: Beit Sourik Village Council v The Government of Israel (2006) 31 Brooklyn Journal of International Law 857, 878Google Scholar (‘The principle of proportionality is recognized as both a general standard of international law and a fundamental principle of Israeli administrative law’).
62 This phrase is sometimes translated as ‘restriction clause’.
63 Basic Law: Human Freedom and Dignity (n 32) art 8. See also Bracha (n 24) 636–37.
64 Bracha (n 24) 636.
65 ibid, text at fn 216. See also Tamir (n 56) 65 (‘In Israel, “the unreasonableness of the decision in such cases may serve as an indication of a defect in the exercise of discretion” and “may be sufficient to shift the burden of proof … to the [administrative] authority”’(citing Zamir (n 54) 71)).
66 Abu Massad (n 1) para 44.
67 ibid para 44 (‘Proportionality is perceived as one of the “main issues” deriving from reasonability, as a “making the demand for reasonability a concrete fact” or as a “branch on the tree of non-reasonability”, in a place where an administrative entity is discussing the damage to a legislative right’ (quoting Aharon Barak, Proportionality: Infringement of Constitutional Rights and their Limitations (Nevo 2010)).
68 Bracha (n 24) 637.
69 Rao (n 31) 205.
70 Greene, Jamal, ‘The Finest Legal Mind: A Symposium in Celebration of Justice John Paul Stevens. Essay: The Rule of Law as a Law of Standards’ (2011) 99 Georgetown Law Journal 1289, 1292Google Scholar.
71 Mathews, Jud and Sweet, Alec Stone, ‘All Things in Proportion? American Rights Review and the Problem of Balancing’ (2011) 60 Emory Law Journal 797, 799Google Scholar.
72 Sweet and Mathews (n 36) 132. See also Jackson, Vicki, ‘Book Review: Being Proportional About Proportionality – The Ultimate Rule of Law’ (2004) 21 Constitutional Commentary 803, 813Google Scholar (‘For evidence of the growth of proportionality analysis in constitutional courts analysis around the world, one could look to the recent decision of the Israeli High Court holding [in HCJ 2056/04 Beit Sourik Village Council v Government of Israel 2004 PD 58(5) 807] that both Israeli and international public law require government conduct towards citizens of the West Bank to be “proportional” and ordering the relocation of portions of the already-erected separation fence’).
73 Rao (n 31) 205. See also Sweet and Mathews (n 36) 87 (suggesting that constitutional judges employ proportionality adjudication in ‘pursuit of two overlapping, general goals: (1) to manage potentially explosive environments, given the politically sensitive nature of rights review; (2) to establish, and then reinforce, the salience of constitutional deliberation and adjudication within the greater political system’).
74 Bracha (n 24) 638.
75 Abu Massad (n 1) para 45 (citing Barak (n 67)). See also Sweet and Mathews (n 36) 133 (noting that former Israeli Supreme Court President Aharon Barak explicitly advocated for ‘proportionality analysis as the method for determining when rights must yield to public law’) (citing Aharon Barak, Interpretation in the Law: Constitutional Interpretation (Nevo 1994)).
76 Abu Massad (n 1) para 45. See also Fallon, Richard H Jr, ‘Strict Judicial Scrutiny’ (2007) 54 UCLA Law Review 1267, 1295Google Scholar (describing the first sub-test of proportionality analysis as considering ‘whether a legislative measure restricting basic rights is rationally related to a desired end’); Barak, Aharon, ‘Foreward: A Judge on Judging: The Role of a Supreme Court in a Democracy’ (2002) 116 Harvard Law Review 16, 147Google Scholar (under the first sub-test, ‘an action is proportionate if it is appropriate for achieving the goal’).
77 Sweet and Mathews (n 36) 75. See also Tamir (n 56) 66 (‘“suitability” requires that the means used must be appropriate to serve the legal aim’).
78 Abu Massad (n 1) para 45.
79 Fallon (n 76) 1295.
80 Sweet and Mathews (n 36) 75.
81 Fallon (n 76) 1295–96.
82 Sweet and Mathews (n 36) 75. See also Barak (n 76) 147 (noting that ‘an action is proportionate if there are no other means appropriate for achieving the goal that would undermine the principles that we want to protect (such as human rights) to a lesser degree’); Tamir (n 56) 66 (‘“necessity” requires that the means adopted are the least restrictive way to achieve the aim’).
83 Abu Massad (n 1) para 45.
84 Fallon (n 76) 1296.
85 Barak (n 76) 148. See also Sweet and Mathews (n 36) 75–76 (describing this sub-test as ‘balancing in the strict sense’ or ‘proportionality in the narrow sense. In the balancing phase, the judge weighs the benefits of the act – which has already been determined to have been “narrowly tailored”, in American parlance – against the costs incurred by infringement of the right, in order to determine which “constitutional value” shall prevail, in light of the respective importance of the values in tension, given the facts’); Tamir (n 56) 67 (‘proportionality in the strict sense requires that, viewed overall, the burden on the right at issue must not be excessive relative to the benefits secured by the state objective’).
86 Abu Massad (n 1) para 45.
89 Fallon (n 76) 1295.
90 Sweet and Mathews (n 36) 75.
91 Abu Massad (n 1) para 45.
96 Barak (n 76) 96.
97 Rao (n 31) 221 (quoting HCJ 7015/02 Ajuri v IDF Commander in West Bank 2002 PD 56(6) 352).
98 Bracha (n 24) 609.
100 Abu Massad (n 1) para 54.
102 The Right to Water (n 39).
103 United Nations Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, Catarina de Albuquerque, ‘On the Right Track – Good Practices in Realising the Rights to Water and Sanitation’, 34–35, http://www.ohchr.org/Documents/Issues/Water/BookonGoodPractices_en.pdf (On the Right Track); United Nations Human Rights Council, Catarina de Albuquerque, Report of the Independent Expert on the Issue of Human Rights Obligations related to Access to Safe Drinking Water and Sanitation, 1 July 2010, UN Doc A/HRC/15/31/Add.1 (Access to Safe Drinking Water and Sanitation), http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.31.Add.1_en.pdf. Although the 2010 UN General Assembly and the UN Human Rights Council resolutions recognise a human right to safe drinking water and sanitation, this discussion will focus only on water because that was at issue in Abu Massad.
104 Access to Safe Drinking Water and Sanitation, ibid 6.
105 The field researchers were told that an individual one-inch pipe can serve more than 100 people, but this assertion was not independently verified by the research team.
106 Access to Safe Drinking Water and Sanitation (n 103) 7.
107 Mekorot is the Israeli national water company.
108 Almi (n 12) 32.
110 Access to Safe Drinking Water and Sanitation (n 103) 8.
114 Abu Massad (n 1) para 45.
115 The Water Law, 1959 (Israel), s 3.
116 See Bracha (n 24) fn 216 (‘when reference is made to the basic rights of the individual, the test of reasonableness becomes even more strict – namely, the evidence required to persuade a statutory authority of a justification for denying a fundamental right must be clear, unequivocal and convincing’) (internal citations omitted).
117 Abu Massad (n 1) para 42.
119 On the Right Track (n 103) 58 (noting that around the world, ‘[a]uthorities frequently resist allowing people with insecure tenure to connect to the water and sanitation networks because such connections can confer legal rights over the land that they occupy, and thus be seen to encourage the development of informal settlements').
120 ibid 125 (‘This discrimination of the individual based on where he or she lives is particularly pervasive in informal settlements, which can be home to hundreds of thousands of families, most if not all of whom cannot produce a legal title. Service providers and municipal authorities may use the ambiguous legal status of these settlements as an excuse to delay or even deny the provision of adequate water and sanitation services’).
121 UN Human Rights Council, Report by the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, UN Doc A/HRC/18/35/Add.1 (2011) 24–31; UN Human Rights Committee, Consideration of Reports submitted by States Parties under Article 40 of the International Covenant on Civil and Political Rights, Concluding Observations of the Human Rights Committee, UN Doc CCPR/C/ISR/CO/3 (2010); Gruenberg (n 49).
122 On the Right Track (n 103) 125.
123 ICESCR, art 2 states in part:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present 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.
124 Steiner, Henry, Alston, Philip and Goodman, Ryan (eds), International Human Rights in Context: Law, Politics, Morals (3rd edn, Oxford University Press 2007) 275Google Scholar.
125 United Nations General Assembly, ‘Human Rights Obligations related to Access to Safe Drinking Water and Sanitation, Note by the Secretary-General’, UN Doc A/65/254 (2010) 10 (‘The notion of progressive realization relates not only to progressively achieving universal access to water and sanitation, but also to meeting these standards. Human rights do not settle for minimum standards, such as basic access to water and sanitation, but ultimately require achieving a higher standard that guarantees an adequate standard of living’); Committee on Economic, Social and Cultural Rights, General Comment 3 (The Nature of States Parties' Obligations), 27 May 2008, UN Doc HRI/GEN/1/Rev.9 (Vol. I) para 1. See also MA Salman and Siobhan McInerny-Lankford, The Human Right to Water: Legal and Policy Dimensions (Law, Justice and Development Series, The World Bank 2004) (noting that ‘[t]he history and institutional apparatus of the ICESCR is inextricably linked to the concept of “progressive realization” at the heart of the ICESCR's implementation’).
126 Craven, Matthew CR, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development (Clarendon Press 1995) 16Google Scholar (noting that ‘the nature of international law is such that the question of enforceability has never been conclusive as to the existence of international rights or duties’).
127 Access to Safe Drinking Water and Sanitation (n 103) 10–11.
128 Abu Massad (n 1) para 45.
129 See Bracha (n 24) 639.
131 Adalah, ‘Adalah Petitions Supreme Court to Cancel Wine Path Plan for Individual Settlements in the Naqab’, April 2006, http://www.adalah.org/newsletter/eng/apr06/1.php (noting that ‘individual families live in the settlements, often without permits and in violation of the planning and building laws and regulations … While the [Jewish] individual settlements are afforded official status and provided with all basic services, the unrecognized [Bedouin] villages are denied this status and its inhabitants are forced to live without basic services’); Adalah, ‘Israeli Supreme Court Upholds Planning Authority Decision to Establish Individual Settlements in the Naqab as Part of its “Wine Path Plan” despite Discrimination against Arab Bedouin Unrecognized Villages’, 28 June 2010, http://www.old-adalah.org/eng/pressreleases/pr.php?file=27_06_10_2 (describing the Supreme Court's refusal to intervene in the planning authorities' decision to approve the ‘Wine Path Plan’, which retroactively legalised individual Jewish settlements in the Negev).
132 Erez Tsfadiya, ‘The Difference Between a Solitary Farm and an Unrecognized Village’, 18 July 2010, http://www.ynet.co.il/articles/0,7340,L-3920404,00.html (translated from Hebrew); The Negev Development Authority Law (Amendment No 4), 2012 (Israel) (translated from Hebrew). See also Negev Coexistence Forum for Civil Equality and the Regional Council for the Arab Unrecognized Villages of the Negev, Recognition Forum, Physicians for Human Rights – Israel, ‘The Arab-Bedouin in the Negev-Naqab Desert in Israel: Shadow Report submitted to the UN Committee on the Elimination of Racial Discrimination (CERD)’, May 2006, 15 (Negev Coexistence Forum Report), http://www2.ohchr.org/english/bodies/cerd/docs/ngos/NCf-IsraelShadowReport.pdf (‘Most of the farms are established without outlined plans and building permits are granted retroactively’); Adalah, ‘Israeli Supreme Court Upholds Planning Authority Decision’ (n 131) (noting that in a case brought to challenge the retroactive approval, the Israeli Supreme Court ‘did not address the petitioners’ arguments concerning the disparate impact of the plan, specifically the unequal distribution of land and the discrimination against the Arab Bedouin unrecognized villages, which would result from the approval of the plan').
133 Abu Massad (n 1) para 12.
134 For an in-depth look at the challenges of resolving these land claims, see Amara, Abu-Saad and Yiftachel (n 58); Nili Shchory, Jonathan Kowarsky, Abdessalam Najjar, Judith Karp and Efrat Geri, ‘Conflict Assessment Report: Development Disputes in Kseife and Um Batin’, December 2006, http://cbuilding.org/sites/default/files/Final%20Negev%20Conlict%20Assessment%20English.pdf; Consensus Building Institute, ‘Resolving Conflicts between the Israeli Government and Bedouin Stakeholders’, http://cbuilding.org/publication/case/resolving-conflicts-between-israeli-government-and-bedouin-stakeholders-kseife-and- .
135 See also Gruenberg (n 49) 186 (‘The terminology used to describe Israel's Arab citizens is in itself “highly politicized” and infuses the legal inquiry with biases and preconceptions’).
136 Abu Massad (n 1) para 52.
140 eg Abu Rabia (n 20) 480 (‘During the military rule from 1949–1966, Israel passed laws to enable it to confiscate land previously owned or used by the Bedouin population and to then register it in the name of the Israeli State. The Bedouin's ancestral land was declared a military zone that the Arab-Bedouin could not enter’).
141 Abu-Saad (n 5) 121; Meallem, Garb, and Cwikel (n 5).
142 Shmueli and Khamaisi (n 3) 111.
143 Suhad Bishara and Haneen Naamiih, Nomads Against Their Will (Adalah 2011) 5.
144 Shmueli and Khamaisi (n 3) 111–12.
145 Shamir, Ronen, ‘Suspended in Space: Bedouins under the Law of Israel’ (1996) 30 Law and Society Review 231–57, 243CrossRefGoogle Scholar.
146 Abu Rabia (n 20) 481. (‘The 1953 Land Acquisition (Validation of Acts and Compensation) Law gave the Israeli State the right to register previously confiscated land under certain conditions. One of these conditions rested on whether the owner was in possession of the property on April 1, 1952. If not, then the Israeli State could register the land in its name’).
147 Goldberg Committee, ‘Recommendations to the Israeli Ministry of Construction and Housing’ (Goldberg Report), para 42, http://www.moch.gov.il/SiteCollectionDocuments/odot/doch_goldberg/Doch_Vaada_Shofet_Goldberg.pdf (citing Land Law, 1969 (Israel), s 155).
148 Association for Civil Rights in Israel, ‘Principles for Arranging Recognition of Bedouin Villages in the Negev’, May 2011, s II(3), http://www.acri.org.il/en/wp-content/uploads/2011/09/Prawer-Policy-Paper-May2011.pdf.
149 Shmueli and Khamaisi (n 3) 111.
150 Association for Civil Rights in Israel (n 148) 12.
153 Bishara and Naamiih (n 143) 5.
154 Shmueli and Khamaisi (n 3) 111.
155 ‘Siyag’ or ‘Syag’ means ‘fence area’.
156 Shmueli and Khamaisi (n 3) 113.
157 Negev Coexistence Forum for Civil Equality, Michal Rotem, Haia Noach, Nuri Al-Ukbi, ‘Response to the Report of the State of Israel on Implementing the Covenant on Economic, Social and Cultural Rights (ICESCR), October 2010, 4, http://www.phr.org.il/uploaded/Final_Shadow_report_ESCR_1Nov_10.pdf. See also Goldberg Report (n 147) paras 19–20 (‘The Bedouin who were brought, against their wishes, to the siyag are classified as “internally evacuated”, and remained in the area without “tribal territory” as opposed to the tribes that were in this area previously. So two classes were created: that of “landowners” and that of “landless”. We heard from invitees who appeared before the Committee that the internally evacuated, or a part of them, were told by the bodies that transferred them to the siyag that their transfer was temporary’).
158 Association for Civil Rights in Israel (n 148) s I.
160 Haia Noach, The Existent and the Non-Existent Villages (Pardes 2009) 49.
161 Negev Coexistence Forum Report (n 132) 7; Shmueli and Khamaisi (n 3) 113; Abu Rabia (n 20) 482 (noting that the Israeli state established seven Bedouin townships in 1962 and that the purpose of this plan was ‘to secure land suitable for settling Jews, for setting up Israel defense force bases, and to remove the Bedouin population from key Naqab routes’).
162 Habitat International Coalition, ‘The Goldberg Opportunity: A Chance for Human Rights-based Statecraft in Israel’, iii, http://www.hic-net.org/document.php?pid=3832 (noting that one dunam is equivalent to 10,000 hectares).
164 As noted in the Goldberg Report (n 147), discussed below:
Since the start of the land settlement procedure, the Beer Sheva district court has handed down 80 judgments, covering 50,050 dunam, in claims the Settlement Officer placed before the courts (223 cases). Thirteen of these judgments have been given as compromises reached with the claimants, and 67 judgments rejected the claims, either because the claimant did not appear in court or because they did not pursue their claim, and the land was registered in the name of the State. None of [the] judgments given to date has held up the Bedouin claimants' ownership of the land. The Hawashleh precedent effectively invalidates ‘the possibility that the Bedouin's historical land claims will be recognised. … We can conclude that, so far as the legal disagreement over land ownership is concerned, the Bedouin will also lose their case in the future, given the State's claim that most of the land in the Negev is of the mawat category, and they should therefore be registered in the name of the State. In order to make this point, the State has even introduced counter claims, in order to warn the Bedouin what fate awaits them if they do not reach a compromise agreement.
166 Thabet Abu Ras, ‘The Arab-Bedouin Population in the Negev. Transformations in an Era of Urbanization’ (The Abraham Fund Initiatives 2012) 72, http://www.abrahamfund.org/img/upload/0/0_3821.pdf; Meallem, Garb, and Cwikel (n 5) 4.
167 Abu Ras, ibid; Meallem, Garb, and Cwikel (n 5); Adalah, ‘The Arab Bedouin of the Naqab: Myths and Misconceptions’, 2, http://adalah.org/Public/files/English/Publications/myths%20flyer%20campaign.pdf
168 Association for Civil Rights in Israel (n 148) 5.
169 Association for Civil Rights in Israel (n 148).
170 See Goldberg Report (n 147) paras 57, 152 (noting that the Bedouins' ‘problems cannot be solved without finding a solution to the problems Bedouins are facing in such matters as employment, welfare and education (even though much has been done and large funds have been invested in this field)’).
171 Abu Rabia (n 20) 481 (noting that ‘even the few currently recognized villages cannot receive a building permit. The zoning law also criminalized existing villages by categorizing them as illegal or unrecognized’).
173 Association for Civil Rights in Israel (n 148) 8.
174 Abu Rabia (n 20) 481 (‘The State of Israel prohibits permanent construction in the unrecognized villages; those who do construct permanent structures risk heavy fines and the demolition of their permanent structures’); Ruth Pollard Al-Sira, ‘Bedouin Face Bulldozers as Israel Reshapes the Desert; A People Demolished – “You are denying their right to exist”’, 5 November 2011, http://www.smh.com.au/world/bedouin-face-bulldozers-as-israel-reshapes-the-desert-20111104-1n01y.html.
175 For example, the village of El Arakib, which is west of Route 40, has been demolished approximately 32 times since the summer of 2010. In addition, while the research team was in Israel, several villages received demolition orders and the villagers, along with their legal advocates, filed emergency motions in court to try to halt the demolition orders.
176 Centre on Housing Rights and Evictions (COHRE), Submission to the Goldberg Committee regarding Violations of the Human Right to Water and Sanitation in the Unrecognized Villages of the Negev/Naqab, February 2008, 5, http://www.internal-displacement.org/8025708F004CE90B/(httpDocuments)/6248B673A93BEFF3C12574120062611E/$file/COHRE+Submission+to+Goldberg+Committee+Feb-1.pdf.
177 See Goldberg Report (n 147) para 63; Association for Civil Rights in Israel (n 148) s I.
179 Association for Civil Rights in Israel, ‘Towards Recognition’, 26 May 2011, http://www.acri.org.il/he/?p=11958. These villages are: Abu Kurinat, Um Batin, Mulada, Makhoul-Marit, Ksar A-Sir-Hawashleh, A-Said, Tarabin, BirHadaj, Khoula and Darijaat.
180 Shmueli and Khamaisi (n 3) 113–114.
181 See Shchory and others (n 134).
182 Abu-Saad (n 5) 124.
183 Falah, Ghazi, ‘How Israel Controls the Bedouin in Israel’ (1985) 14 Journal of Palestine Studies 35–51, 43CrossRefGoogle Scholar; Abu-Saad (n 5) 124; Alon Tal, Pollution in a Promised Land: An Environmental History of Israel (University of California Press 2002) 347, http://publishing.cdlib.org/ucpressebooks/view?docId=kt6199q5jt;brand=ucpress.
184 Abu Massad (n 1) para 4.
186 As explained above, the research team learned while in Israel that this does not mean private household connections. Rather, it means roadside access to a water pipe; the Bedouins must then use their own funds to install pipes to bring the water close to their homes.
187 Abu Massad (n 1) Concurring Opinion of Justice Arbel.
189 Goldberg Report (n 147) para 49.
191 Shmueli and Khamaisi (n 3) 115 (quoting Cabinet Resolution No 1999, Establishment of an Authority for Bedouin Settlement Arrangements in the Negev, 15 July 2007).
192 Goldberg Report (n 147) para 108.
199 Abu Massad (n 1) para 13.
200 Goldberg Report (n 147) para 152.
201 Prawer Committee, ‘Recommendations of the Committee for the Implementation of the Goldberg Report for Formalization of Bedouin Settlements in the Negev’, 31 May 2011, English translation by Itamar Haritan on file with authors; Government of Israel, Decision 4411: Regulation Policy for Bedouin Settlement in the Negev (The Goldberg Committee), 18 January 2009, http://www.pmo.gov.il/Secretary/GovDecisions/2009/Pages/des4411.aspx.
202 Jack Khoury, ‘Israel's Contentious Bedouin Relocation Plan Passes PM's Office Panel’, Ha'aretz, 28 March 2012, http://www.haaretz.com/news/national/israel-s-contentious-bedouin-relocation-plan-passes-pm-s-office-panel-1.421136.
203 Israel Ministry of Foreign Affairs, ‘Cabinet Approves Plan for the Bedouin Sector in the Negev’, 11 September 2011, http://www.mfa.gov.il/MFA/Government/Communiques/2011/Cabinet_approves_plan_Bedouins_Negev_11-Sep-2011.htm.
205 Rotem, Noach and Al-Ukbi (n 157) 21.
206 Aviv Lavie, ‘Goldberg Speaks’, Ma'ariv, 4 December 2011.
207 Mansour Nasara, ‘Before you Expel the Bedouins’, NCF Newsletter, October 2011, 1; Oren Yiftachel, ‘Housing for Bedouins’ Ha'aretz, 27 September 2011, http://www.haaretz.co.il/opinions/1.1484336.
208 Negev Coexistence Forum for Civil Equality (NCF), ‘Position Paper regarding the Prawer Plan’, 23 March 2012, http://www.dukium.org/eng/?p=1517.
209 eg, Adalah ‘The Prawer Plan and Analysis’ October 2011, http://www.adalah.org/upfiles/2011/Overview%20and%20Analysis%20of%20the%20Prawer%20Committee%20Report%20Recommendations%20Final.pdf; NCF, ibid.
210 Alternative Information Center, ‘Bill Will Turn Bedouin Dispossession into Israeli Law’, 2 February 2012, http://www.alternativenews.org/english/index.php/component/content/article/28-news/4109-bill-will-turn-bedouin-dispossession-into-israeli-law.
211 Yair Yagna, ‘Israel Police Establishes Unit to Enforce Demolition of Bedouin Homes’, Ha'aretz, 17 April 2012, http://www.haaretz.com/news/national/israel-police-establishes-unit-to-enforce-demolition-of-bedouin-homes-1.424805.
212 Prime Minister's Office, ‘Cabinet Approves Plan to Provide for the Status of Communities in, and the Economic Development of, the Bedouin Sector in the Negev’, 11 September 2011, http://www.pm.gov.il/PMOEng/Communication/Spokesman/2011/09/spokenegev110911.htm.
213 Khoury (n 202).
214 Rami Shani, ‘The Controversial Plan of the Negev’, Walla News, 4 February 2012, http://news.walla.co.il/?w=/90/2505877.
215 Israel Ministry of Foreign Affairs, ‘Cabinet Approves Plan for the Bedouin Sector in the Negev’, 27 January 2013, http://www.mfa.gov.il/MFA/Government/Communiques/2012/Cabinet_approves_status_Bedouin_settlement_Negev_27-Jan-2013.htm.
216 Association for Civil Rights in Israel, ‘Begin Plan for Negev Bedouin Continues Racist Policy of Dispossession’, 28 January 2013, http://www.acri.org.il/en/2013/01/28/begin-plan-bedouin-dispossession.
217 Gil Ronen and David Lev, ‘Govt Sneaks Through Huge Land Giveaway for Bedouin’, Arutz Sheva 7, 27 January 2013, http://www.israelnationalnews.com/News/News.aspx/164618#.UQqvY2fLeVo.
218 Entered into force 23 March 1976, 999 UNTS 171 (ICCPR).
219 UN Human Rights Committee (n 121) 24.
221 UN Human Rights Council (n 121) paras 4–22. See also Anaya, James, ‘Indigenous Peoples' Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Land and Resources’ (2005) 22 Arizona Journal of International and Comparative Law 7Google Scholar, 7 (noting that it is a ‘generally accepted principle in international law that indigenous peoples should be consulted as to any decision affecting them’); Anaya, S James, ‘Symposium: Lands, Liberties, and Legacies: Indigenous Peoples and International Law. Keynote Address: Indigenous Peoples and their Mark on the International Legal System’ (2006) 31 American Indian Law Review 257, 260–61CrossRefGoogle Scholar (noting that the International Labor Organization Convention No 169 on Indigenous and Tribal Peoples recognizes indigenous peoples' land rights); cf International Labor Organization, ‘Ratifications of C169 – Indigenous and Tribal Peoples Convention, 1989 (No 169), http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314 (showing that Israel is not one of the 22 countries that have ratified ILO Convention No 169).
222 UN Human Rights Council (n 121) para 23.
223 ibid para 25. See also Anaya, S James, ‘European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society by Paul Keal’ (2005) 99 American Journal of International Law 306, 306CrossRefGoogle Scholar (noting that the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-Commission on the Promotion and Protection of Human Rights) defines indigenous peoples as those groups that have ‘(1) a historical continuity with precolonial societies whose presence predated that of now dominant groups living on the same territory or in close proximity, (2) a distinctive cultural or ethnic identity that is connected with ancestral land, and (3) the desire to transmit that identity to future generations’).
224 UN Human Rights Council (n 121) para 25.
225 See Anaya, ‘Indigenous Peoples and their Mark on the International Legal System’ (n 225) 259 (‘CERD's function is to promote compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, and this Convention, of course, is constructed upon the fundamental human rights norm of equality and non-discrimination in the context of combating racial discrimination’).
226 See Anaya, S James, ‘International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State’ (2004) 21 Arizona Journal of International and Comparative Law 13, 37Google Scholar (noting that ‘the fundamental norm of non-discrimination requires recognition of the forms of property that arise from the traditional or customary land tenure of indigenous peoples, in addition to the property regimes created by the dominant society’); Anaya, ‘Indigenous Peoples and their Mark on the International Legal System’ (n 225) 260 (‘This notion of equality does not treat indigenous peoples as though they were like everyone else in society. Equality instead means that indigenous peoples get to keep their languages and to live within their long-standing, self-governing institutions. Equality means that their property rights, their connection with territory, have to be valued just as much as the dominant society's connection with its property’).
227 UN, Committee on the Elimination of Racial Discrimination (CERD), ‘Consideration of Reports Submitted by States Parties under Article 9 of the Convention, Concluding Observations of the Committee on the Elimination of Racial Discrimination’, UN Doc CERD/C/ISR/CO/14-16 (2012) (CERD, ‘Consideration of Reports’) para 20. See also Dana Weiler-Polak, ‘UN Panel Urges Israel to Shelve ‘Racist’ Bedouin Relocation Plan', Ha'aretz, 26 March 2012.
228 CERD, ibid 20.
229 UN, CERD, Consideration of Reports Submitted by States Parties under Article 9 of the Convention: Concluding Observations of the Committee on the Elimination of Racial Discrimination, Israel, UN Doc CERD/C/ISR/CO/13 (2007) para 25.
230 Negev Coexistence Forum for Civil Equality, ‘NCF Statement at UN Permanent Forum on Indigenous Issues’, 16 May 2012, http://www.dukium.org/eng/?p=1689.
231 UN, ICCPR, Human Rights Committee, ‘List of Issues Prior to the Submission of the Fourth Periodic Report of Israel (CCPR/C/ISR/4) adopted by the Human Rights Committee at its 105th Session, 9–27 July 2012’, 31 August 2012, UN Doc CCPR/C/ISR/Q/4; Human Rights Committee, 105th session, 9–27 July 2012, Geneva, http://www2.ohchr.org/english/bodies/hrc/hrcs105.htm (providing links to all relevant documents, including NGO submissions).
232 UN, ICCPR, Human Rights Committee, ‘Interim Report of the Special Rapporteur for Follow-up on Concluding Observations of the Human Rights Committee adopted at its 105th Session, 9–27 July 2012’, 31 August 2012, UN Doc CCPR/C/105/2, http://unispal.un.org/UNISPAL.NSF/0/ACC0FEECBC1B9B2785257A71004F6E8D.
233 eg, ‘More than Mere Squatters’, The Boston Globe, 3 January 2012, http://www.boston.com/bostonglobe/editorial_opinion/editorials/articles/2012/01/03/more_than_mere_squatters/.
234 Abu Massad (n 1) paras 40, 45.
236 See Oren Yiftachel, ‘Critical Theory and “Gray Space” – Mobilization of the Colonized’ (2009) 13 CITY 240, 251, http://www.geog.bgu.ac.il/members/yiftachel/new_papers_2009/City%202009.pdf. (‘… most recently Palestinian varieties are gaining popularity, thereby creating the foundation for a new subjectivity which gradually draws away from any normative attachment to Israeli citizenship’).