'Israel's right to exist': Is it a real issue?

Jeff Handmaker and Gentian Zyberi, The Electronic Intifada, 28 March 2007

Secretary-General Ban Ki-moon (left) speaks at a joint press conference with Ehud Olmert, Prime Minister of Israel, in Jerusalem. (UN/Evan Schneider)

There are many aspects of the conflict between Israel and the Palestinians in urgent need of legal scrutiny as part of a much-needed critical dialogue. One such issue is Israel's claim towards Hamas to acknowledge that it has a 'right to exist'. This claim has not only been uncritically taken on board by the Quartet. It has become one of the top conditions to be fulfilled by Hamas for receiving aid by the Quartet and other international donors. At the risk of stating the obvious, we argue that this position lacks any basis under international law and will serve no constructive political purpose in seeking to resolve the conflict.

What makes a State?

The criteria for statehood are laid out in the 1933 Montevideo Convention, namely: a permanent population, a defined territory, a government and capacity to enter into relations with other States. While Israel is a State and has been recognized as such by many States, it should not be forgotten that there is a fundamental distinction between the act of recognising a State and the mere fact of being of a State, or a State's 'right to existence'.

Recognition of a State is accorded under international law by way of two processes, namely recognition on the basis of objective criteria and explicit recognition by States. Explicit recognition by States is not necessary if the first factors (criteria for statehood) exist, though it obviously carries much political significance. This was illustrated by the Peoples Republic of China, a State of considerable size and stature, which was not recognized by many States for a long time and took its place in the UN only in 1971.

There are also many States which do not have diplomatic relations with other States, who withhold explicit recognition or who withdraw diplomatic relations for a variety of reasons, including objection to a government's human rights record. In the past this included the Soviet Union and South Africa. Many States, members of the UN, have also refused to recognise Israel, or have withdrawn diplomatic relations, for similar reasons. This includes the government of Venezuela, which withdrew its ambassador from Tel Aviv in August 2006 in protest at Israel's indiscriminate bombing of civilians in Lebanon.

Also largely forgotten in this discussion; a State's 'existence' carries with it many obligations, including the obligation to treat the inhabitants of territories under its control (occupied or otherwise) in accordance with human rights and humanitarian law. This includes respect for the rights of minorities, no discrimination on the grounds of race, religion or national origin and full and equal participation of all its citizens.

Last but not least, a 'right to existence' for a State is not an esoteric right, it must materialize within a clearly defined territory. Although this 'right to existence' is intrinsically connected with the issue of borders, the fact that the borders of Israel are not yet defined goes largely unnoticed.

Is Israel's existence at stake? A one-way demand

The current demand by the Quartet, US, Russia, UN and the European Union, is that Hamas recognise Israel's 'right to exist'. But even if the Quartet were to more properly insist on recognition of Israel's 'right to existence', Hamas is a political party and not a State and thus in no position to exercise any kind of legal recognition at all. Assuming, therefore, that the demand is instead being made for political reasons, we must question why it is made without any reciprocal demands by Israel.

Such a reciprocal demand might be, for example, that Israel acknowledge the right of return of Palestinian refugees in accordance with international law and that the West Bank, Gaza and Golan are occupied territories, neither of which Israel has done. Further, Israel might be asked to acknowledge the validity of the 2004 Advisory Opinion of the International Court of Justice (ICJ), which provides a basis for resolving the conflict in accordance with international law, and also places explicit obligations on other States (including the members of the Quartet) and the UN itself.

Arafat long ago acknowledged, as head of the PLO, the 'right of the State of Israel to exist in peace and security'.

So what does the current demand from Israel and the EU actually mean? Is it a real issue?

Since the European Union's demand that Hamas recognise Israel has no basis in international law, and in the absence of any reciprocal demands on Israel, we can only conclude that the EU, knowingly or not, is seeking to impose a one-sided political agenda that is counter-productive in finding a just peace. Such an approach undermines the EU's standing in the negotiating process towards achieving a just and long-lasting solution to this conflict.

The European Union must reconsider its position

Asking for an acknowledgement from Hamas of Israel's 'right to exist' is a disingenuous request, rooted neither in international law nor in any constructive political consideration.

As the largest trading partner of Israel, the European Union must reconsider its own position, expressed by the Quartet, at least with regard to this request. The EU should be guided by the even-handedness of international law principles as laid down in the 2004 Advisory Opinion of the ICJ. In this Opinion, the Court held that the obligations towards the international community as a whole violated by Israel are the obligation to respect the right of the Palestinian people to self determination, and certain of its obligations under international humanitarian law.

All States have an obligation to ask from Israel the recognition of the Palestinian people's right to self-determination. As the ICJ advised, the UN General Assembly (and the Quartet) need to encourage efforts with a view to achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems, with peace and security for all in the region.

This over-riding objective is not going to be achieved by such requests.

Jeff Handmaker lectures in human rights at the Institute of Social Studies in The Hague and Gentian Zyberi is a Ph.D. Candidate at the Netherlands Institute of Human Rights, Utrecht University.

Hypocrisy

Furore over Jewish critics' challenge to state of Israel

Ned Temko

The Observer

A major battle has erupted in Jewish communities on both sides of the Atlantic over accusations that left-wing Jews are fuelling anti-Semitism by challenging the existence of Israel.

On one side is an array of prominent Jewish community leaders and institutions saying that such criticism plays into the hands of Muslim radical groups and other extremists.

On the other side, left-wing Jewish writers and academics insist that basic freedom of expression is at stake. Some British Jewish voices have warned of an atmosphere of 'McCarthyism' reminiscent of the anti-Communist witchhunts in 1950s America.

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The current dispute erupted earlier this year in the United States, home to the world's largest diaspora Jewish community, with an essay published by the American Jewish Committee. The AJC urged the community to 'confront' those Jews who had joined in the 'verbal onslaught against Zionism and the Jewish state'. The essay denounced some critics by name, including prominent historian Tony Judt and Tony Kushner, the Pulitzer Prize-winning author of the play Angels in America.

The heated argument escalated further with a feature on the dispute in the New York Times. Judt, who was criticised in the article for having denounced Israel as 'arrogant, aggressive, anachronistic, infantile... [and] immoral,' told the New York Times he was convinced that leading Jewish voices simply wanted to stifle any harsh criticism of Israel.

But in a separate article, Boston-based sociologist Shulamit Reinharz - wife of the president of America's leading Jewish university, Brandeis - rejected the idea that Jewish left-wingers could question the very existence of Israel without imperilling Jews. 'Most would say they are simply anti-Zionists, not anti-Semites. But I disagree, because in a world where there is only one Jewish state, to oppose it vehemently is to endanger Jews.'

In London, a similar battle has erupted around academic Tony Lerman, head of think-tank the Institute of Jewish Policy Research (JPR). At issue are remarks he made before taking up the post in which he questioned the viability of Israel as a Jewish state. He suggested replacing it with a Jewish-Arab state that would also offer a home for Palestinian refugees. Four JPR directors, and one of its honorary patrons, the Tory peer Lord Kalms, have resigned in protest.

Against this background, a new British group calling itself Independent Jewish Voices is planning to launch tomorrow on Comment Is Free, the Guardian's and Observer's online comment site. The group - including more than 100 writers, academics, doctors, lawyers, actors and others - objects to what it terms the misconception that British Jews 'speak with one voice and that this voice supports the Israeli government's policies'.

Kalms has insisted that he has no problem with criticism of individual Israeli government policies, but has suggested that Lerman's questioning of the Jewish state's existence risks providing cover for extremists who want Israel destroyed. Writing in the Jewish Chronicle on Friday, he said he had been told that he should be 'tolerant of Mr Lerman's views'. But, he argued, 'that is difficult when he proposes the suicide of the state of Israel.'

Echoing Kalms's view, a former Australian Jewish community leader, Isi Leibler, also wrote in the Chronicle: 'How can a person publicly state that Israel should be displaced as a Jewish state... [and] still occupy the role of executive director of Anglo-Jewry's principal think-tank?'

But JPR chairman Peter Levy - who also chairs the Chronicle - voiced strong support for Lerman and denounced the 'deeply disturbing, orchestrated campaign' against him. 'The people responsible do not seem to value independent thinking, and wish to prevent discussion of matters that may be uncomfortable but are essential for us to address. Their campaign demeans our community... and should be brought to an end,' Levy said.

What 'Israel's right to exist' means to Palestinians

from the February 02, 2007 edition

Recognition would imply acceptance that they deserve to be treated as subhumans.

By John V. Whitbeck

JEDDAH, SAUDI ARABIA

Since the Palestinian elections in 2006, Israel and much of the West have asserted that the principal obstacle to any progress toward Israeli-Palestinian peace is the refusal of Hamas to "recognize Israel," or to "recognize Israel's existence," or to "recognize Israel's right to exist."

These three verbal formulations have been used by Israel, the United States, and the European Union as a rationale for collective punishment of the Palestinian people. The phrases are also used by the media, politicians, and even diplomats interchangeably, as though they mean the same thing. They do not.

"Recognizing Israel" or any other state is a formal legal and diplomatic act by one state with respect to another state. It is inappropriate – indeed, nonsensical – to talk about a political party or movement extending diplomatic recognition to a state. To talk of Hamas "recognizing Israel" is simply to use sloppy, confusing, and deceptive shorthand for the real demand being made of the Palestinians.

"Recognizing Israel's existence" appears on first impression to involve a relatively straightforward acknowledgment of a fact of life. Yet there are serious practical problems with this language. What Israel, within what borders, is involved? Is it the 55 percent of historical Palestine recommended for a Jewish state by the UN General Assembly in 1947? The 78 percent of historical Palestine occupied by the Zionist movement in 1948 and now viewed by most of the world as "Israel" or "Israel proper"? The 100 percent of historical Palestine occupied by Israel since June 1967 and shown as "Israel" (without any "Green Line") on maps in Israeli schoolbooks?

Israel has never defined its own borders, since doing so would necessarily place limits on them. Still, if this were all that was being demanded of Hamas, it might be possible for the ruling political party to acknowledge, as a fact of life, that a state of Israel exists today within some specified borders. Indeed, Hamas leadership has effectively done so in recent weeks.

"Recognizing Israel's right to exist," the actual demand being made of Hamas and Palestinians, is in an entirely different league. This formulation does not address diplomatic formalities or a simple acceptance of present realities. It calls for a moral judgment.

There is an enormous difference between "recognizing Israel's existence" and "recognizing Israel's right to exist." From a Palestinian perspective, the difference is in the same league as the difference between asking a Jew to acknowledge that the Holocaust happened and asking him to concede that the Holocaust was morally justified. For Palestinians to acknowledge the occurrence of the Nakba – the expulsion of the great majority of Palestinians from their homeland between 1947 and 1949 – is one thing. For them to publicly concede that it was "right" for the Nakba to have happened would be something else entirely. For the Jewish and Palestinian peoples, the Holocaust and the Nakba, respectively, represent catastrophes and injustices on an unimaginable scale that can neither be forgotten nor forgiven.

To demand that Palestinians recognize "Israel's right to exist" is to demand that a people who have been treated as subhumans unworthy of basic human rights publicly proclaim that they are subhumans. It would imply Palestinians' acceptance that they deserve what has been done and continues to be done to them. Even 19th-century US governments did not require the surviving native Americans to publicly proclaim the "rightness" of their ethnic cleansing by European colonists as a condition precedent to even discussing what sort of land reservation they might receive. Nor did native Americans have to live under economic blockade and threat of starvation until they shed whatever pride they had left and conceded the point.

Some believe that Yasser Arafat did concede the point in order to buy his ticket out of the wilderness of demonization and earn the right to be lectured directly by the Americans. But in fact, in his famous 1988 statement in Stockholm, he accepted "Israel's right to exist in peace and security." This language, significantly, addresses the conditions of existence of a state which, as a matter of fact, exists. It does not address the existential question of the "rightness" of the dispossession and dispersal of the Palestinian people from their homeland to make way for another people coming from abroad.

The original conception of the phrase "Israel's right to exist" and of its use as an excuse for not talking with any Palestinian leaders who still stood up for the rights of their people are attributed to former US Secretary of State Henry Kissinger. It is highly likely that those countries that still employ this phrase do so in full awareness of what it entails, morally and psychologically, for the Palestinian people.

However, many people of goodwill and decent values may well be taken in by the surface simplicity of the words, "Israel's right to exist," and believe that they constitute a reasonable demand. And if the "right to exist" is reasonable, then refusing to accept it must represent perversity, rather than Palestinians' deeply felt need to cling to their self-respect and dignity as full-fledged human beings. That this need is deeply felt is evidenced by polls showing that the percentage of the Palestinian population that approves of Hamas's refusal to bow to this demand substantially exceeds the percentage that voted for Hamas in January 2006.

Those who recognize the critical importance of Israeli-Palestinian peace and truly seek a decent future for both peoples must recognize that the demand that Hamas recognize "Israel's right to exist" is unreasonable, immoral, and impossible to meet. Then, they must insist that this roadblock to peace be removed, the economic siege of the Palestinian territories be lifted, and the pursuit of peace with some measure of justice be resumed with the urgency it deserves.

• John V. Whitbeck, an international lawyer, is the author of, "The World According to Whitbeck." He has advised Palestinian officials in negotiations with Israel.