'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refused to recognise Israel, or have withdrawn diplomatic relations, 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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