Palestinian Studies

2020 Workshop

Suhad Bishara

PhD Candidate in Law, King's College London

Legalities of Indigeneity and the Politics of Power in Palestine

The paper will challenge the emerging legal discourse of indigeneity that refer to the Palestinian Bedouins. In recent years, a growing number of scholars, advocates, NGOs, and international human rights organizations have been advocating for the rights of the Bedouins - both citizens of Israel and those living under Israeli occupation in the West Bank - as indigenous minorities, attempting to gain acknowledgement of some property rights for these communities and strengthen the legal status of Bedouin land title.

This discourse relies on 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. 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 also common -predominantly referring to the famous Australian Mabo decision that acknowledged the history of indigenous dispossession in Australia, abolished the colonial legal concept of “terra nullius” and ruled that the Meriam people were entitled to possess, occupy and use most of the lands of the Murray Islands. 

Indeed, Israeli regime denies traditional and historical title over Bedouin ancestral land, based on the doctrine of “terra nullius” or “mawat land”, as called in the Israeli legal system, and does not acknowledge what previous legal regimes - the British Mandate and the Ottoman Empire - considered as a traditional Bedouin title. Still, I think that the indigeneity legal discourse - in its international and comparative law forms - is problematic and raises a lot of questions and concerns in the Palestinian context. 

First, the discourse does not profoundly explain why the Bedouins fall under the category of “indigenous people” distinct from the rest of the Palestinian people; second, such a discourse, despite its good intent, endures Palestinian fragmentation and creates legal ‘pluralism’ that conceptually distinguishes between the different groups of the Palestinian people under the same Israeli colonial control; third, the discourse fails to capture the Zionist colonial formations that constructed and continue to construct the power relations between Israel and all parts of the Palestinian people; forth, it reproduces another form of elimination of the Palestinian nationhood; and fifth it endures rather than challenge the existing colonial hierarchies. 

The paper will conclude by raising concerns about the use of the indigenous legal framework - that developed in contexts that are essentially different from the Palestinian reality - without regard to its political implications. 

Suhad Bishara is a PhD Candidate at King's College London (KCL) School of Law; holds LLM degree from New York University (NYU) School of Law, USA; LL.B. from the Hebrew University of Jerusalem and was Palestine & Law Fellow at Columbia University Law School (2014-2015). She is the Director of Land and Planning Unit at Adalah – The Legal Center for Arab Minority Rights in Israel. She has worked with Adalah since 2001 and served as lead lawyer in landmark constitutional human rights cases regarding Palestinian citizens of Israel and international humanitarian law cases concerning Palestinians in the 1967 Occupied Territory before the Israeli Supreme Court.