by Elias Davidsson

(Revision, June 2002)

From time to time one comes across statements by politicians  who emphasize the “right of existence of the State of Israel”.  This formula has been used so many times by so many  people and accepted without critical insight, as to have become a  cliché.

But do States possess an inherent ‘right to exist’ ? Are there any legal texts defining such a right ? How about the Charter of the United Nations ?

The United Nations Charter

The Preamble of the Charter refers only to human rights and  to equal rights of men and women and of nations large and small. The preamble does mention “peoples”,  “mankind”,  “human person” and “nations” as the main subjects for which the United Nations was established. States are not mentioned in the Preamble.

Article 1 lists the “Purposes” for which the United Nations were established, namely to protect the rights of peoples and nations. States are not considered either here as possessing rights and are not mentioned at this stage. It is difficult to believe that this was an oversight by the drafters.  Only in Article 2, stating the Principles of the United Nations, which are the rights and duties of its “members”.

States have no inalienable rights

The Charter does not mention in any direct or indirect way theright of existence  of its member states. The obligations to respect Members’ territorial  integrity and their sovereignty are not based on their sacred character but follow logically from the declared Purposes of the United Nations, namely to maintain international peace between the nations and peoples [who live in the territories controlled by these Members]. Such distinction is fundamental. While Peoples and Nations  possess inalienable rights, as enshrined in the Charter, primarily the right to self-determination,  States are a historical artifact which  serves practical purposes in regulating the civil life of human communities, no more and no less. It is true that many Nations have  established States (in the modern sense of the word)  to protect their interests and security. But this need not be  the case nor are Nations endowed with their own State. Some States are composed of a number of “nations”, while some nations’ members live in several states. Moreover in many cases there are latent or overt conflicts  between the two categories State and Nation/People, as can be seen for example in ex-Yugoslavia. It can be assumed that  when a conflict arises between these categories, Peoples’ rights,  first and foremost their right to self-determination would be considered superior to States’ rights. The former State of Yugoslavia has no inherent right of existence, unless the peoples living within the borders of that State wish it to exist.

The establishment of Israel opposes self-determination

Most states have come into being as nations began to assert their right to self-determination and Empires crumbled. Not  so the State of Israel. Its establishment was imposed on  the people of Palestine by force and given some sort of a legal garb by a Recommandation of the the General  Assembly of the United Nations (Resolution 181 of  29.11.1947), voted against a substantial opposition. The  establishment of the State of Israel interfered directly with the inalienable right to self-determination of the indigenous inhabitants of Palestine.  The colonial character of this enterprise was stated  explicitely by its promoters, Theodor Herzl and was not denied by the the Mandatory Power over Palestine, the British Government, who helped the Zionist movement accomplish its task.

The legality of the above United Nations recommandation regarding the partition of Palestine and the allocation of more than half of Palestine’s territory to Jews for the establishment of the State of Israel, is and has been highly controversial.  This is one of the reasons why Israeli governments avoid referring to it, But even if it had some legality,  it would not  necessarily follow that the establishment of the State of Israel was based on some inherent right, for such inherent right  does not exist: Neither for the State of Israel nor for any other members of the United Nations. The historical rights of Jews to Palestine, claimed by the Zionist movement, are irrelevant in the context of  international law.

Arabs' opposition to Israel’s “right of existence”

While it is a requirement under Article 1(2) of the U.N. Charter that the territorial integrity and political independence of any existing state be respected, States are not required to accept other states’ right of existence. It is moreover disingenious to  expect of people  who lost their homeland as a result of another state’s establishment to endorse as legitimate the very act causing their destitution. They are entitled to consider Israel’s  establishment as an unjust grievance, refuse to bless the hand that had sinned and entitled to struggle for redress.

The accusation levelled at Arab states that they still refuse to  recognize Israel’s existence is technically inaccurate. Arab  states have formally endorsed U.N. Resolutions concerning the right of the State of Israel to secure borders, which in terms of UN law, is all what is required of them.

All Arab states, together with all European, African and Asian  states, have endorsed the proposal for an International Peace Conference on the Middle East based on Security Council resolutions  242 (1967) and 338 (1973) and the legitimate national rights of the  Palestinian people, primarily the right to self-determination.  The position of Arab states vis a vis Israel is therefore fully consistent  with the United Nations Charter.

Security Council Resolution 242

Security Council resolution 242 (1967) emphasizes the need  for “every State in the [Middle East] to live in security” and establishes two basic principles for a just and lasting peace in  the Middle East, one of which is “Israel’s withdrawal from (the) territories occupied in 1967” and the other the  “termination of the all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independance of every State in the area and their right to live in peace within secure and  recognized boundaries free from threats or acts of force”.

It must be recalled that Security Council resolution 242 (1967) does not consecrate Israel’s right of existence, only its right to integrity and security. Even the United States, Israel’s main ally, would have been at pains to introduce into texts of  international law the concept of the “right of existence” of the State of Israel.

Is the use of force against the State of Israel legitimate ?

The U.N. Charter proscribes any “threats or use of force  against the territorial integrity or political independence of  any state” (Article 2). To be able to violate “territorial  integrity”, a state must have a defined territory. To be able to violate the “political independence” of a state, that state must be “politically independent”.   The State of Israel however does not fulfill either criteria.  Thus Article 2 of the Charter does not apply to Israel. This may come as a surprise to many readers and will  therefore be substantiated in some detail.

Is Israel a 'politically independent State' ?

On 14 May 1948,  eve of the announcement of the establishment of the State of Israel, a meeting of the Zionist  leadership in Palestine took place. These were the people who  were to become the first government of the State  of Israel. At this meeting it was proposed that Israel would be declared an “independent and sovereign” state. As the  Protocols of the meeting show, this proposal was extensively  discussed but finally rejected, as it would have given equal status to all inhabitants, Jews and non-Jews. The next day the  members of the National Council “representing the Jewish people in  Palestine and the [World] Zionist Movement” proclaimed the  “establishment of the Jewish state in Palestine to be called  Medinat Yisrael (the State of Israel)”[[1]]. Israel’s High Court has since confirmed the view that the State of Israel is not a sovereign state of its inhabitants but belongs to all of the world’s Jews.  This link has been confirmed by the Israeli Law of Return, which grants automatic Israeli citizenship to any person proving bona fide  Jewish descent. The State of Israel cannot therefore be considered a “politically  independent” state within the legal meaning given to it in the Charter 

Does Israel have a defined territory ?

 In the meeting, referred to above, the question of borders arose. The relevant discussion was summarized by David Ben-Gurion, who was to become Israel’s first Prime Minister:

“There was a discussion of this matter in the People’s  Executive. There was a proposal to determine borders, and there was opposition to this proposal. We decided       to evade (and I choose this word intentionally) the matter ... We have left this matter open for developments” (Protocols of Debates, 1948, p.19; Hebrew; emphasis in the original)[[2]].

Ben-Gurion last word (“developments') proved subsequently  to have had a hidden meaning.  It seems that Ben-Gurion correctly assessed that Zionist military forces would ultimately conquer territories lying outside the area allotted by the United  Nations to the incumbent Jewish state. He was therefore loath to restrict a priori  Israel’s borders through a premature declaration.  His assessment was correct and was confirmed in his War Diary (Vol. 1, pp. 210-1) where he wrote:

"The war will give us the land. The concept of 'ours' and 'not ours' are peace concepts only and in war they lose their whole meaning."[[3]]

Zionist forces conquered the Western Galilee, the modern part of Jerusalem and other areas allotted to the Arab Palestinian State. But in spite of these territorial gains, Israel refused until today to define these territories as Israel’s permanent acquisitions.  There were more “developments” to come, more areas to be  conquered and Judaized.

As these lines are written, the State of Israel has not yet defined its ultimate borders nor even declared its ultimate claims. And this is no coincidence. The Zionist  movement since its inception, had far greater territorial ambitions than the area allotted by the United Nations to the Jewish state, or for that matter, by the Balfour Declaration of 1917. These ambitions include areas of Lebanon, Syria and, according to extreme claims, all of Jordan. Some Zionists, including religious fundamentalists, even dream of wider areas,  referring to biblical promises extending to Mesopotamia. Zionist ambitions to Lebanon had though little to do with military security or the bible, but with more mundane interests, namely access to the sources of the Jordan river, to water. Israel’s territorial ambitions have been proven through its unilateral annexation of East Jerusalem, of the Golan heights  and its creeping annexation of all the other occupied territories,  which continues unabated, regardless of changes in government and in agreements made. 

The Arab people have been long aware of the Zionist State's expansionist nature and cannot be expected to trust it, as it continues to bring in more and more Jews from other countries to consolidate its  colonialist grip.

END