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

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 Many States, members of the UN, have also refused to recognise Israel, or have withdrawn diplomatic relations, for similar reasons.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