The Expulsion and the Evidence

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The report is 44-years-old, typed in Hebrew, copied by mimeograph for a few high officers and officials. It describes, in dry military language, how the Israeli army came to evict thousands of Beduin from their homes in the Sinai Peninsula, then under Israeli occupation.

It took a legal battle before the Israeli Supreme Court for me to be allowed to see it. What it proves decisively is that before the same court, 44 years ago, a senior government lawyer presented an argument for the state that-let me put this delicately-has no connection to the facts, and the court accepted it. Army and government papers show that the same happened in two other key Supreme Court rulings early in the occupation.

I am retelling this now not just to set the historical record straight in light of new evidence, though that's important enough. The affair also says a great deal about the role that Israel's highest court has played, then and ever since, in giving a veneer of legitimacy to what the government does in occupied territory.

The expulsion began in the early morning on January 14, 1972, when Israel Defense Forces troops arrived at a Beduin community in the northeastern corner of the Sinai, an area that Israel called the Rafiah Plain, and announced that everyone had to leave the area. That day they knocked over tents; the next day they returned and demolished houses. Over the next few weeks, nine Beduin tribes, somewhere between 5,000 and 20,000 people, were expelled from an area of at least 18 square miles.

When the International Committee of the Red Cross asked for an explanation from the brigadier general in charge of administering the occupied territories, it turned out that neither he nor the military chief of staff, David Elazar, knew about the expulsion. Lt. Gen. Elazar ordered an internal army inquiry. An anemic statement issued by the cabinet in late March said the inquiry committee found that "several commanders" had exceeded their authority. No names were given, but it eventually leaked that the most senior of them was Maj. Gen. Ariel Sharon, head of the IDF's Southern Command.

The ensuing public controversy focused on the plans of Golda Meir's Labor-led government to build Israeli settlements on the Rafiah Plain. But when the leaders of the nine tribes petitioned the Supreme Court against the expulsion, the state had a different story. A senior government lawyer told the court that the army had requisitioned the land and expelled the Beduin for pressing security reasons. A deposition by another major general, Yisrael Tal, explained that an armed uprising was underway in the Gaza Strip. To stop attacks in the Rafiah Plain and arms smuggling to Gaza, he said, the army needed to create a buffer zone dividing the Sinai from Gaza. It was strange that the deposition came from Tal rather than Sharon, who was commander of the area. But Tal was a national hero, and Sharon was tainted by the inquiry and previous controversies.

Under international law, the occupying power could only "requisition" private land temporarily, for immediate military needs. The Supreme Court accepted Tal's testimony on military need and rejected the suit.

Afterward, the government indeed established new settlements on the land, including the town of Yamit, a pet project of Defense Minister Moshe Dayan. In a twist of history, Sharon was defense minister in 1982 when Israel completed its pullout from the Sinai under the peace treaty with Egypt. Sharon presided over the evacuation and razing of Yamit.

Another historical twist: In a leftover from British rule of Palestine, suits against government actions go directly to the Supreme Court in Israel. The British designed the system to make sure that such challenges went to a panel packed with British judges. When Israel became independent, its own judges took their place. Ever since, the court has been the arena of constant challenges to state power. After the Six-Day War in 1967, residents of the occupied territories began petitioning the court, and Attorney General Meir Shamgar decided not to challenge their standing-even though they were non-citizens living outside sovereign Israel. Shamgar believed that the military needed the constraint of judicial review. His stance can be read as a liberal belief in the rule of law, or as a backdoor way of extending Israeli jurisdiction to occupied land-or as both.

Many years later, I filed my own petition to the Supreme Court. I was researching the genesis of Israeli settlement for my book, The Accidental Empire. Because the occupied territories are under military rule, I expected the IDF Archive to contain much evidence. To gain access, I had to make a request to be an "authorized researcher," and explain what material I sought. I was turned down, twice. On the phone, the archive director told me that the subject of the settlements "certainly touches on [diplomatic] contacts with the Palestinians. These are very problematic topics, very sensitive, and I'm sure you wouldn't want to be the one to make them public."

I didn't bother to respond that in a democracy, one role of both a historian and a journalist is precisely to bring politically sensitive material to light so that it informs public debate. Attorney Avner Pinchuk of the Association for Civil Rights in Israel did a better job of explaining this than I could in the petition to the Supreme Court that he submitted in my name.

As I expected, the case dragged on long after I finished my book. The state's strategy for avoiding a precedent-setting decision was to let me see a few dozen files so that the court would declare the case moot. I asked for more. The justices told me to name three more files. I picked the ones likely to deal with the expulsion of the Beduin. The state agreed to two, including the one containing the army inquiry report. I was far from satisfied, but if not for fear of the court I wouldn't have gotten that much.

So one afternoon I sat in the IDF Archive reading the report. Then I stepped out to the researchers' coffee room and put my head on my arms on a table.

As much as I knew already, I was still stunned.

I already knew from other evidence that the ultimate purpose of pushing the Beduin off their land was to build settlements. I knew that Prime Minister Levi Eshkol's government had decided back in January 1969 to settle the area, in a cabinet meeting where Dayan said, "We've got to get the Beduin out" and suggested using a military pretext. I knew that Dayan's bitter rival, Deputy Prime Minister Yigal Allon, agreed with him on the need to settle the northeast Sinai, and that two Israeli farming villages had been established there by 1971. I knew that Eshkol's successor, Golda Meir, believed peace with Egypt was possible only if Israel kept parts of the Sinai.

But the army's own chronology of the affair made it more tangible, and was more blatant than I expected. It makes virtually no mention of any security rationale. Instead, it says that in 1971, settlement officials contacted the army about carrying out government plans for more settlements. A civilian employee mapped the land that the army had requisitioned under a 1969 military order but not yet used. Then Sharon expelled the Beduin. The inquiry report said that so much time had passed since the original order that he should have gotten approval before he acted. Hence, he'd "exceeded authority."

Then it turned out that the employee who drew the map had carelessly marked a much larger area than he should have. Some of the land from which the Beduin were driven wasn't covered by the 1969 order. Rather than admit a mistake, the army issued a new order seizing the remainder. Later, the new order would also be explained as a security necessity.

I tracked down ex-general Tal and phoned to ask for an interview about his deposition. There was no point, he answered. He hadn't written it, he said. "The defense minister and the chief of staff asked that I sign it in the name of the general staff, so I did," he told me.

A note filed with the report is from Attorney General Shamgar, saying he'd read and approved it. So he knew exactly why the expulsion took place. Then attorneys under his authority, presumably working with the army, prepared an entirely different story that would fit the argument of military necessity, and signed a respected general on it. The Supreme Court accepted Tal's expertise. In its ruling, it says explicitly that it didn't see a need to ask for the inquiry report.

When I found this out, I was working on a new project with Professor Emeritus David Kretzmer of the Hebrew University Law Faculty, a leading expert on human rights. Rather than publish one case, we checked two other early, crucial Supreme Court rulings on the occupied territories.

In one case, a Palestinian electric company challenged the government's decision to hook up the West Bank city of Hebron to the Israeli electrical grid. The state's response said nothing about the actual reasons for the move, as shown by the paper trail. They included Dayan's policy of "integrating" the West Bank economy with Israel's, and the need to provide power to the new settlement of Kiryat Arba next to Hebron, a project backed by Allon. The court decided that linking Hebron to the Israeli grid would serve the needs of the city's residents, which made it legally acceptable.

In the second case, private Palestinian land was expropriated to build a new highway from coastal Israel through the West Bank to Jerusalem. Responding to a challenge by the landowners, the government said that the road was being built to serve the local Palestinian residents. The Supreme Court accepted this as a legal justification under international law. In fact, a long string of government documents show that the road was an integral part of Israeli settlement plans.

Once again, the truth went unmentioned in court.

In an article that David Kretzmer and I have just published in the Israeli journal Mishpat Umemshal, he explores the legal implications of all this. Here I'll stick to three conclusions of my own.

First, I can't know how the court would have ruled if it had known the full story. I only know that the state's lawyers created narratives designed to defend policies with little concern for facts. I also don't know how widespread the pattern is, but it would be naive to think these are three isolated cases. For that matter, it's naive to imagine this only happens in Israel. We know that elsewhere, in criminal cases, innocent people have spent years in prison because prosecutors were more interested in victory than anything else.

But an attorney representing a government in court really has two clients: the government, and justice. The second client should take precedence. When truth is buried to serve the first client, the credibility of the justice system vanishes, and a citizen is left facing arbitrary power.

Much more specific to Israel is the role of the justice system in in the occupation. The very existence of judicial review, along with occasional rulings against government actions in occupied territory, have at times restrained the government's actions. But the cases I've described show the court playing a different role: granting a facade of legitimacy to the occupation. When the court too easily accepts the state's version of events, there's nothing behind the facade.

Finally, there's the matter of secrecy. I'm not an absolutist. I understand that a government needs to keep secret tomorrow's battle plans or its fallback position in next week's negotiations. But the authority to keep secrets is inevitably abused. Yes, I still want to tell the archive director, her successor and her superiors: I most definitely want to bring this sensitive material to light.