'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 Many States, members of the UN, have also refused to recognise Israel, or have withdrawn diplomatic relations, for similar reasons.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.

Think-tank warns Iraq on brink of collapse

AFP
Iraq on brink of collapse: report

by Dave Clark 21 minutes ago

Iraq is on the brink of total disintegration and could drag its neighbors into a regional war, a leading think-tank said, after the Pentagon confirmed violence was at an all-time high.
The warning from the International Crisis Group came amid lawless chaos in Baghdad, where police were hunting for 16 kidnapped aid workers and a former minister who escaped from jail, allegedly with the help of US hired guns.

The ICG's report called on Washington to distance itself from Prime Minister Nuri al-Maliki's beleaguered government, which has failed to tackle sectarian militias, and reach out to the United States' arch-foes Iran and Syria.

The permanent members of the UN Security Council and Iraq's six neighbours should engage with all the parties to Iraq's spiralling conflict, it urged, while nevertheless holding out little prospect of success.

"Implementation of the various measures mapped out in this report is one last opportunity. It is at best a feeble hope," the ICG paper said.

"But it is the only hope to spare Iraq from an all-out disintegration, with catastrophic and devastating repercussions for all," it warned.

The interior ministry's head of operations, Brigadier General Abdel Karim Khalaf, told AFP that a high-level investigation had been launched into the capture of Red Crescent staff, the latest in a series of mass kidnaps.

"It was repeated, and might be repeated again," he said, linking Sunday's raid on a Red Crescent office in Baghdad to another last Thursday in which several dozen shopkeepers were taken.
In both assaults, a large group of gunmen using security force uniforms, weapons and SUV trucks sealed off a central area of the capital and hauled off dozens of civilians, unchallenged by local law enforcement.

Iraqi Red Crescent secretary general Mazen Abdullah said that 10 more of the hostages had been released on Tuesday, but revised upwards the number known to have been taken, leaving 16 still unaccounted for.

Mass kidnappings have become the latest signature crime of the vicious turf war underway between Baghdad's criminal and sectarian factions, denting public confidence in the police and sowing paranoia.

Meanwhile, bomb and gun attacks killed three people in Baquba, north of Baghdad, and the bodies of eight more shooting victims were found, police said. An army officer was killed in Diwaniyah.

US troops shot dead one insurgent in Baghdad, and found and cleared at least eight roadside bombs, according to statements from the US military.

Khalaf also said police were investigating the case of a politician who escaped from a police station in the heavily fortified Green Zone where he was being held for a 2.5 billion dollar (1.8 billion euro) fraud.
Judge Radhi Hamza al-Radhi, head of Iraq's Public Integrity Commission, told AFP that former electricity minister Ayham al-Samarrai -- who has joint US and Iraqi citizenship -- had been sprung on Sunday and was on the run.

"As he has American citizenship, it had been agreed that guards from a private US security company would be allowed to protect him and to be posted around the police station in which he was being held," the judge said.

"They took advantage of the absence of many of the police from the station, who were called away to another mission, and entered the building to remove Samarrai," he added.
Meanwhile, the Pentagon's quarterly report into the US military mission in Iraq said violence has soared to the highest level on record, with an average of 959 attacks per week over the past four months, up 22 percent.

Even this figure is likely to be a gross underestimate of the bloodshed because, as was noted in a highly critical bi-partisan review of US policy released earlier this month, the Defence Department's figures exclude most attacks.

"There is significant under-reporting of the violence in Iraq," said the report by the Iraq Study Group chaired by former Republican secretary of state James Baker.

The panel complained that most attacks that fail to hurt US troops are simply left out of the Pentagon's calculations, meaning that on any given day there could be 10 times more violent acts than noted by the military.

The Pentagon report was released just hours after former intelligence chief Robert Gates took up his post as the new US defence secretary and warned that the United States must battle on despite mounting casualties.

"Failure in Iraq at this juncture would be a calamity that would haunt our nation, impair our credibility and endanger Americans for decades to come," the 63-year-old Washington insider said at the swearing-in ceremony.

The US military announced Tuesday that another marine had died in troubled western Iraq, bringing the number of US fatalities in the country since the 2003 invasion to 2,948 according to an AFP count based on Pentagon figures.

JOINT CHIEFS: WHITE HOUSE LACKS DEFINED MISSION FOR IRAQ

White House, Joint Chiefs At Odds on Adding Troops

By Robin Wright and Peter Baker
Washington Post Staff Writers
Tuesday, December 19, 2006; A01

The Bush administration is split over the idea of a surge in troops to Iraq, with White House officials aggressively promoting the concept over the unanimous disagreement of the Joint Chiefs of Staff, according to U.S. officials familiar with the intense debate.

Sending 15,000 to 30,000 more troops for a mission of possibly six to eight months is one of the central proposals on the table of the White House policy review to reverse the steady deterioration in Iraq. The option is being discussed as an element in a range of bigger packages, the officials said.

But the Joint Chiefs think the White House, after a month of talks, still does not have a defined mission and is latching on to the surge idea in part because of limited alternatives, despite warnings about the potential disadvantages for the military, said the officials, who spoke on the condition of anonymity because the White House review is not public.

The chiefs have taken a firm stand, the sources say, because they believe the strategy review will be the most important decision on Iraq to be made since the March 2003 invasion.

At regular interagency meetings and in briefing President Bush last week, the Pentagon has warned that any short-term mission may only set up the United States for bigger problems when it ends. The service chiefs have warned that a short-term mission could give an enormous edge to virtually all the armed factions in Iraq -- including al-Qaeda's foreign fighters, Sunni insurgents and Shiite militias -- without giving an enduring boost to the U.S military mission or to the Iraqi army, the officials said.

The Pentagon has cautioned that a modest surge could lead to more attacks by al-Qaeda, provide more targets for Sunni insurgents and fuel the jihadist appeal for more foreign fighters to flock to Iraq to attack U.S. troops, the officials said.

The informal but well-armed Shiite militias, the Joint Chiefs have also warned, may simply melt back into society during a U.S. surge and wait until the troops are withdrawn -- then reemerge and retake the streets of Baghdad and other cities.

Even the announcement of a time frame and mission -- such as for six months to try to secure volatile Baghdad -- could play to armed factions by allowing them to game out the new U.S. strategy, the chiefs have warned the White House.

The idea of a much larger military deployment for a longer mission is virtually off the table, at least so far, mainly for logistics reasons, say officials familiar with the debate. Any deployment of 40,000 to 50,000 would force the Pentagon to redeploy troops who were scheduled to go home.

A senior administration official said it is "too simplistic" to say the surge question has broken down into a fight between the White House and the Pentagon, but the official acknowledged that the military has questioned the option. "Of course, military leadership is going to be focused on the mission -- what you're trying to accomplish, the ramifications it would have on broader issues in terms of manpower and strength and all that," the official said.

The official, who spoke on the condition of anonymity to discuss internal deliberations, said military officers have not directly opposed a surge option. "I've never heard them be depicted that way to the president," the official said. "Because they ask questions about what the mission would be doesn't mean they don't support it. Those are the kinds of questions the president wants his military planners to be asking."

The concerns raised by the military are sometimes offset by concerns on the other side. For instance, those who warn that a short-term surge would harm longer-term deployments are met with the argument that the situation is urgent now, the official said. "Advocates would say: 'Can you afford to wait? Can you afford to plan in the long term? What's the tipping point in that country? Do you have time to wait?' "

Which way Bush is leaning remains unclear. "The president's keeping his cards pretty close to his vest," the official said, "and I think people may be trying to interpret questions he's asking and information he's asking for as signs that he's made up his mind."

Robert M. Gates, who was sworn in yesterday as defense secretary, is headed for Iraq this week and is expected to play a decisive role in resolving the debate, officials said. Secretary of State Condoleezza Rice's views are still open, according to State Department officials. The principals met again yesterday to continue discussions.

The White House yesterday noted the growing number of reports about what is being discussed behind closed doors. "It's also worth issuing a note of caution, because quite often people will try to litigate preferred options through the press," White House press secretary Tony Snow told reporters.

Discussions are expected to continue through the holidays. Rice is expected to travel to the president's ranch near Crawford, Tex., after Christmas for consultations on Iraq. The administration's foreign policy principals are also expected to hold at least two meetings during the holiday. The White House has said the president will outline his new strategy to the nation early next year.

As the White House debate continues, another independent report on Iraq strategy is being issued today by the International Crisis Group, a Brussels-based crisis monitoring group that includes several former U.S. officials. It calls for more far-reaching policy revisions and reversals than did even the Iraq Study Group report, the bipartisan report issued two weeks ago.

The new report calls the study group's recommendations "not nearly radical enough" and says that "its prescriptions are no match for its diagnosis." It continues: "What is needed today is a clean break both in the way the U.S. and other international actors deal with the Iraqi government, and in the way the U.S. deals with the region."

The Iraqi government and military should not be treated as "privileged allies" because they are not partners in efforts to stem the violence but rather parties to the conflict, it says. Trying to strengthen the fragile government of Prime Minister Nouri al-Maliki will not contribute to Iraq's stability, it adds. Iraq's escalating crisis cannot be resolved militarily, the report says, and can be solved only with a major political effort.

The International Crisis Group proposes three broad steps: First, it calls for creation of an international support group, including the five permanent members of the U.N. Security Council and Iraq's six neighbors, to press Iraq's constituents to accept political compromise.

Second, it urges a conference of all Iraqi players, including militias and insurgent groups, with support from the international community, to forge a political compact on controversial issues such as federalism, distribution of oil revenue, an amnesty, the status of Baath Party members and a timetable for U.S. withdrawal. Finally, it suggests a new regional strategy that would include engagement with Syria and Iran and jump-starting the moribund Arab-Israeli peace process.