Suhad Bishara

 

In recent years, a growing number of scholars, advocates, NGOs, and international human rights organizations have been advocating for the rights of the Bedouin, both citizens of Israel in the Naqab and those living under occupation in area C in the West Bank, as indigenous people, pragmatically attempting to gain acknowledgement of some property rights for these communities. In doing so they refer to the international framework  inaugurated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which was adopted by the United Nations General Assembly in September 2007.[1]
The UNDRIP was drafted in a non-controversial political context, namely the existence of the colonial state. Article 38 of the UNDRIP stipulates that, “States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”
It is undeniable that the Declaration is an important legal framework for the realization and protection of human rights in the context of indigenous peoples and their struggles over generations in settler colonial states. However, before advocating for the application of this framework in the Palestinian context, on both sides of the Green Line, one must first undertake an in-depth analysis of the political implications for the cause of the Palestinian people in general, including its grievances that stem from the ongoing Nakba since 1948 and the prolonged Occupation of 1967.
A Palestinian issue, not a Bedouin one
I base my analysis on a number of realizations and observations of the Israeli political and judicial systems. First, the current wave of forced displacement of Bedouin in the Naqab and in Area C is not a Bedouin problem, but an older and broader Palestinian one. Its articulated stages were the Nakba, the defeat of the Arab forces by Israel in the 1967 war, and subsequent policies pursued by the Jewish state on both sides of the Green Line in keeping with its Zionist principles, including the legal fragmentation imposed on the Palestinian people.[1]
Second, there is an intrinsic relationship between Israel’s geopolitical practices and colonial settlements in the West Bank, and its practices against Palestinian citizens in Israel. The conceptual distinction within the discourse of “indigenous minorities” fails to comprehend this relationship. Not only that, but the distinction in this case – between indigenous and non-indigenous minorities – further fails to capture the legal and political formations that continue to construct the colonial relations of power between Israel and all sections of the Palestinian people. In other words, even if the concept of “indigenous minority” is used in a pragmatically as a means of defending the rights of the Bedouin, the existing legal dynamics do not permit it to be employed in a meaningful manner for their benefit.
Third, when the Bedouin, be they citizens of Israel or “protected residents” living under occupation, turn to the Israeli judicial system to defend their homes and land from forced displacement, the courts unequivocally reject their claims on the basis of their Palestinian identity.[2] Thus, the national identity of the petitioners is the decisive factor in determining to the outcome of the case, and the courts are motivated to act in order to preserve the interests of the colonial Jewish state.

Distorting awareness and dispelling historical conflict

The history of the legal geography of colonial countries indicates an essential link between the “rule of law” and the colonial system. Since geographical sovereignty lies at the heart of colonial settlement systems, the work of law and judicial tactics is an essential component in the formation of geo-political authority and settlement. Thus, the law is enshrined as a colonial tool of the first order to deepen the power relationship between the colonizer and the colonized Thus, consumption of the law has definite political implications for its colonized  consumers, whereas the attempt to separate the “legal” from the “political” distorts understanding of the meaning and role of law in the colonial context, and in particular of its role in shaping the colonizers’ awareness and understanding of their political situation and formulating their perceptions.
In the case of such a perceptional realization within the Palestinian context, any attempt to subsume the Bedouin in particular within more or less precise definitions – such as the definition of “indigenous minority” – will lead to a further layer of legal fragmentation that will have implications for the Palestinian political discourse, first and foremost the distortion of our awareness of our own history and present as one people. Rather than a colonized and occupied people whose land has been stolen from us in a systematic process of displacement and appropriation, the majority of whom have been displaced and are living in exile as refugees, we would be further splintered into sub-groups trying to “prove” a historical connection to part of our collective homeland. Such a move would undermine our demands for a just solution to our historical grievances, and for our right to struggle for our nationhood, and leave us detached from the political and historical context of our cause.
Self-management within the framework of the UNDRIP would compel us to engage in questions of whether to define certain sections of the Palestinian people in isolation from the people as a whole. Although such a route might lead to a recognition of a special identity, and the right to practice and maintain this identity in a self-governing form for the Bedouin communities, the UNDRIP framework in our case reduces the political right to a trifle, and the Bedouin stand to lose their political representation at the Palestinian level, and risk legitimizing Israel in its colonial, occupying, and Jewish forms by maintaining the supremacy and tyranny of the Israeli colonizer.
Thus, by using the UNDRIP as a legal tool, we as Palestinians enter into a process of legal and categorical self-fragmentation, and of dismantling our own political identity as one people. By constructing a new political perspective for the future of diverse groups within the Palestinian people, we become oblivious to our past, to the history of colonization in the Palestinian context, thereby undermining the right to redress for historical injustices, the right to self-determination for the Palestinian people, and the right to return of the refugees. We deprive ourselves of the right to struggle as one united people, and instead contribute to the normalization of the existing political configuration.
Comparisons in this context between the Bedouin and indigenous minorities in other colonial countries such as Canada, Australia, New Zealand, the United States and others, are common. There is no doubt that the experiences of indigenous minorities in different parts of the world are important in the general context of the UNDRIP.
However, the Palestinian situation is different from the above-mentioned cases in several significant aspects that requires caution in comparisons. First, recognition of the Bedouin as indigenous groups by Israel negates the Zionist ideological claim of indigeneity on the same land. Second, unlike the indigenous minorities in these countries, the Palestinians are not a minority in their homeland, and exist within a similar political situation on both sides of the Green Line. Third, the majority of the Palestinian people remain displaced in the diaspora and are entitled to return to their homeland and homes under international law. Fourth, we cannot talk in the Palestinian context about correcting historical injustice by recognizing some rights of “indigenous minorities” in the Naqab and Area C, within a prolonged, ongoing reality of disposition and plunder that expands and deepens daily.
These significant differences underscore the need for careful handling of the comparison between the Palestinian case and that of other indigenous minorities subject to colonialism, as well as the perils of adding yet another internal fissure that stands to further shrink the horizons of Palestinian politics and distort its relationship with the colonizer.

[1] The Declaration addresses the human rights of indigenous peoples including the right of indigenous peoples to be free from any discrimination in the exercise of their rights based on their origin. It also bans discrimination in the exercise of their right to self-determination, the right to autonomy or self-government in matters relating to their internal and domestic affairs, as well as the ways and means of financing their self-government functions, in maintaining and promoting their distinct political, legal, economic, social and cultural institutions, while retaining their right to full participation if they so choose , in the political, economic, social and cultural life of the State. The Declaration also states that the right to the land, territories and resources that it has traditionally owned or occupied must be recognized and refrained from forcibly transferring them. The Declaration does not include a definition of indigenous peoples, but the United Nations system has developed a “modern understanding” of the term based on: “Self-identification as indigenous peoples at the individual level and accepted by the community as their member; Historical continuity with pre-colonial and/or pre-settler societies; Strong link to territories and surrounding natural resources; Distinct social, economic or political systems; Distinct language, culture and beliefs; Form non-dominant groups of society; and resolve to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities” Indigenous peoples, therefore, seek to recognize their identities, their way of life and the right to traditional lands, territories and natural resources.
[2] Palestinian citizens of Israel are subject to Israeli law, while the Palestinians of the West Bank and Gaza are subject to international humanitarian law, and the refugees are subject to United Nations resolutions in principle and some international law.
[3] See, e.g., HCJ 840/97, Sbeit, et al.  v. The State of Israel P.D. 57(4), 803 (2003); C.A. 3094/11, Ibrahim Farhood Abu al-Qi’an, et al. v. The State of Israel (decision dated 5 May 2015); HCJ 2966/95, Muhammad Ahmad Saleh Haresh, et al. v. The Minister of Defense, et al. (decision dated 28 May 1996); HCJ 7151/05, A-Najadah, et al. v. Commander of IDF Forces in the West Bank, et al. (decision dated 12 January 2010).