Does Israel Have the Right to Exist?

A controversial bill in Germany

On 17 November, the German parliament held a controversial debate. The CDU/CSU faction submitted a bill on integration. This proposal claims that immigration is largely made up of immigrants from North African countries and the Middle East, regions known for widespread anti-Semitism and hostility against Israel, a tendency that is also prevalent among their descendants. As a result, it is necessary to apply the current rules on residence, asylum and citizenship more strictly in order to combat anti-Semitism in Germany more effectively. Migrants are required to recognize Israel’s right to exist and must swear never to have taken or will take any action against Israel, with the loss of German nationality as a consequence. In the case of serious anti-Semitic crimes, migrants and their descendants with dual passports risk losing their German nationality.

A migrant is only granted nationality if there is no evidence that he is an anti-Semite. This is suspicious because the Bundestag uses the IHRA definition of anti-Semitism and this definition can easily be misused to consider justified criticism and standard international law as anti-Semitic. For example, publisher Springer’s media considered Germany’s U.N. ambassador a Jew-hater because he voted for U.N. resolutions that contained standard international law.

Axel Springer SE and the British Educational Approach

This development is part of a broader European trend. For example, the major media publisher Axel Springer SE obliges its journalists to endorse Israel’s right to exist. Similarly, the British Secretary of State for Education, Gavin Williamson, sent a letter to schools instructing them not to cooperate with organizations that do not recognize Israel’s right to exist. These actions raise questions about the limits of government influence on personal and professional beliefs.

States have no right to exist

In response to the British letter, the NGO CAGE has taken Britain to court, accusing it of human rights violations. Experts such as John Dugard and Avi Shlaim support this action.

John Dugard, a prominent figure in international law, has extensive experience in this field. As a professor of international law (including in Leiden) and a member of the International Law Commission of the United Nations, he has considerable expertise. He chaired a commission of inquiry into the human rights situation in the Palestinian territories. In 2001, he was appointed United Nations Special Rapporteur in the Occupied Palestinian Territories. He wrote scholarly articles about the conflict. So, he understands the conflict.

Dugard argues that under international law, states have no “right to exist.”:

“The right of a State to exist is not a concept recognized by international law. It is not recognized in any treaty, in customary international law or in legal literature. Accordingly, the 1949 Draft Articles of the International Law Commission on Rights and Duties of States make no mention of such a right.

A State has a right to its territorial integrity and political independence and not to be forcibly attacked by another State.

This, however, is not a right to exist. A State may cease to exist by dissolution (as in the cases of Yugoslavia and Czechoslovakia), union with another State (as with West and East Germany), or by incorporation into another State (as with Somaliland into Somalia, 1960) without any suggestion that a right has been violated.

States do not come into existence in the exercise of a right. Instead, they come into existence when they are recognized as a State by other States or when they are admitted to membership of the United Nations. That there is no right to exist as a State is demonstrated by the fact that a State may be recognized as a State by some States but not by others. Consequently it is a State for those State that recognize it but not for States that do not recognize it.

Palestine, for instance is a recognized as a State by 138 States but its statehood is disputed by those States that do not recognize it. So too with Kosovo that is recognized by some 100 States. Neither of these States is a member of the United Nations which has refused to admit them to membership.

Both the decision of States to recognize an entity as a State and the decision of the United Nations to admit a State to membership (and thereby confirm its statehood) are based on political grounds. Legal standards guide States in making such decisions but in the final resort political considerations prevail. There is no right to recognition or to membership of the United Nations. In other words there is no right on the part of an entity claiming statehood to exist as a State.”

Palestine was originally a mandate territory of the League of Nations. In 1948, European Jewish migrants declared independence from Israel during a civil war. John Dugard refers to James Crawford, a leading jurist, who states: “Israel was effectively and lawfully established as a State by secession from Palestine in the period 1948 to 1949. Its original territory was the armistice territory, not the partition territory.”

Dugard suggests that if the events of 1948 were to take place today, Israel might not be recognized as a state. This is because of the denial of the right of self-determination to the Palestinians, a right that arose after 1945. He draws a parallel with the situation in Rhodesia, where the denial of self-determination led to non-recognition of the state. This raises questions about the consistent application of principles by the United Nations. After all, the UN Charter proclaims the right to self-determination, but it may not have applied the same standard to Israel’s admission as it was later applied to Rhodesia.

In fact, even before Israel’s declaration of independence in 1948, several states declared within the UN debates that the local population should decide the fate of Palestine through the principle of self-determination.

Self-Determination and Sovereignty Within the State of Israel

Within the Israeli state, the people enjoy the right to self-determination. This right entails two core principles: freedom from foreign interference and the right to participated in the government’s decisions. In the context of international law, “the people” includes the total population of an area, which in Israel’s case includes Jews, Arabs, Druze and other minorities.

Sovereignty in international law denotes the complete and exclusive power of a state over its territory and population, free from foreign interference.

In informal conversations, such as in the pub, the above principles and rights (the right to territorial integrity and political independence, the sovereignty and right to self-determination) can sometimes be thought of as a ‘right to exist’, because no one outside the state has the right to destroy Israel. However, as John Dugard emphasizes: “The right of a State to exist is not a concept recognized by international law. It is not recognized in any treaty, in customary international law or in legal literature.”

To illustrate a hypothetical example, suppose that all Dutch people, except Thierry Baudet, vote in a referendum to abolish the Netherlands, divide the territory and then let everyone be their own boss. In this situation, Baudet would not be able to claim under international law that the Netherlands has a right to exist that invalidates the referendum.

Thus, the British and German governments forcing their citizens to express certain views that are not supported by international law can be compared to a hypothetical situation in which the Dutch state would oblige its citizens to declare that rivers have a right to exist. Or imagine that the Minister of Education tells the schools not to use material that denies the right of planet Mars to exist.

Double Standards in the Middle East Conflict

The West often positions itself as an “honest broker” in the Israeli-Palestinian conflict, implying that it would be an impartial and objective mediator. However, there seems to be a crucial aspect missing from this self-assigned role. According to international law, the Palestinians have the right to an independent state, which can be popularly interpreted as a right for Palestine to exist. Despite this, neither the British letter to schools, nor the German legislation, nor the Springer Code of Conduct contain a requirement for the recognition of this right.

For example, German law could state that no one obtains German citizenship if he denies that the Palestinians have a right to statehood, or if there are “concrete irrefutable indications of an anti-Palestinian attitude.” The absence of such provisions raises questions about consistency and equality in the approach to such important international issues.

The British Letter and the Question of Political Impartiality

The letter from the UK Secretary of State for Education highlights the legal duties of schools regarding political impartiality. It underlines that school leaders and staff have a responsibility to behave appropriately, especially in the political views they express. The letter also states that schools should not present materials in a politically biased or one-sided manner and should avoid working with organizations that promote anti-Semitic or discriminatory views. But the letter advises teachers to use sources from organizations that are seen as biased by Palestine supporters.

In addition, while schools are called upon to be balanced and objective, it explicitly states that Israel’s right to exist cannot be denied. At the same time, there is no comparable demand for recognition of Palestine’s right to exist.

This raises questions about the real meaning of ‘political impartiality’ as described in the letter and whether there is a double standard in the UK’s policies.

Causes of the Double Standard

The double standard in the Western approach to the Israeli-Palestinian conflict seems to be driven by two main factors:

1. Strategic Alliances and Territorial Ambitions: Western countries view Israel as an ally and take little action against Israel’s territorial expansion. They insist on negotiations to settle the conflict, which often leads to the gaining of more territory by the stronger party, Israel, than it is entitled to. Israel is constantly building settlements and demolishing Palestinian homes, which could lead to maximum territory conquest. Members of the Israeli government – such as Bezalel Smotrich – and the government agreement claim that Jews have exclusive rights to the land between the river and the sea. The Western double standard facilitates their expansionism.

2. Perceptions of Immigrants Versus Natives: There is a perception among some Western legislators that there are two types of groups: immigrants and natives. These legislators seem to believe that only immigrants could deny Israel’s right to exist and thus Israel’s right is placed above the freedom of conscience of these groups. Conversely, it is thought that mainly natives could deny the right of a Palestinian state to exist. The freedom of expression of the natives seems to take precedence over the rights of the Palestinians. So, it is forbidden to debate Israel’s right to exist, but you are free to question Palestine’s right to exist.

These factors contribute to an often contradictory approach to the conflict, in which political, strategic, and cultural considerations prevail over principles of international law and equality. If you want to have Israel’s right to exist recognised, you must also make it compulsory to recognise the Palestinian right to a state.