'Israel's
Right To Exist':
Is It A Real Issue?
By Jeff Handmaker
& Gentian Zyberi
29 March 2007
The
Electronic Intifada
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members of the UN, have also refused to recognise Israel, or have withdrawn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.
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