On Israel's Right to Exist
With the recent election of Hamas and its formation of a new Palestinian government, a few world bodies, notably the United States, the European Union, and Israel, have refused to deal with it unless it met certain demands: to renounce violence, abide by previous agreements with Israel, and recognize Israel - or, as it is also put - to recognize Israel's right to exist. The hypocrisy underlying these demands notwithstanding, it is the last that is the subject of this essay, specifically, the object of the demand, namely, Israel's right to exist. The questions here are many and philosophical: Is there a difference between recognizing a state's existence and its right to exist? If yes, what is this difference? What does it mean for a state to have a right to exist? What is the nature of this right? Most importantly: Is there such a right? Finally, are there circumstances unique to Israel's case such that whether it has a right to exist hinges also on these, or does the answer as to whether it has such a right hinge merely on general considerations having to do with what rights states have in general? I will not answer these questions in any definitive manner. Rather, I will, first, show that the above world bodies cannot simply assert, let alone assert with the ease that they have, that Israel has a right to exist. In other words, Israel's right to exist is - like any other state's right to exist - sensitive to circumstances and complexities. Second, I will set the stage for answering the question. That is, I will explain what it takes to answer the question whether Israel has a right to exist.
My concern will not be with legal rights. I have read on a few occasions that the notion of a state's right to exist is not a legal one and that there is no such notion under international law. Perhaps. I am not a legal expert. But even if there is such a concept in international law, it has no bearing on the arguments that follow. My concern will be with whether states have a moral right to exist. If they do not, then they do not, no matter what international law has to say (laws have often reflected rights whose moral status is tenuous and sometimes even immoral).
Let us begin.
What does it mean for a state to have a right to exist? One thing it does not mean is that a (as-of-yet-non-existent) state has the right to come into existence (not to be confused with: “it is good were such a state to exist”). The reason why it does not mean this has nothing to do with states and everything to do with the fact that non-existent things do not have rights, period. I am sure that some philosophers will disagree with me on this point, but never mind. I find the idea of non-existent things having rights mind-boggling. Even when philosophers talk about the rights of future generations, they do not mean by this that they have a right to come into existence, but that, assuming that they will come to exist, they will have rights.
The only other sense I can make of “a state's right to exist” is that the state has the right not to be annihilated, not to be, so to speak, “killed,” much like human beings have the right to not be killed (unjustly, if the philosopher Judith Jarvis Thomson is correct). This seems to make sense. If “the right to exist” does not mean “the right to come into existence,” it must then mean “the right to continue to exist,” which in turn means, “the right not to be taken out of existence,” which in its own turn means, “the right not to be annihilated or destroyed.” Moreover, we do require that states not behave in a belligerent manner towards each other, and we have rules regarding the morality of wars, with the idea that states should not have to suffer aggression underlying many of these rules.
Of course, it is one thing to make sense of a purported right, but quite another to show that it exists. So the question now is whether states have such a right. I will argue that states as such do not have rights, that whether a state has a “right to exist” depends on the kind of state it is, and, that even when it does have this right, it has it merely as a derivative right (thus casting some doubt on its genuineness as a right).
Misled by a bad analogy with human beings, one might think that states do indeed have a right to exist. After all, if I have the right to exist, meaning the right not to be killed, we can say something similar about states: they, too, have rights to exist, meaning that they, too, have rights not to be “killed.” But note that the quotation marks around the latter “killed” are there for a reason: unlike human beings, states cannot be killed; they can be destroyed, annihilated, or swept away from existence, but not killed. “Okay,” one might respond. “Who cares? Let them be destroyed or annihilated rather than killed; the point is that, similarly to human beings, they have the right not to be destroyed or annihilated; they have the right to exist.” But the linguistic point is not picky: there is a vast difference, one especially relevant to the discourse about rights, between things that can be killed and things that can be destroyed but not killed. While anything that can be killed can also be destroyed, the reverse is not true: some of the things that can be destroyed are not things that can be killed, simply because they are not the sort of things to be killed: pencil sharpeners, DVDs, and walls, to give three examples. The (obvious) point is that not everything that can be destroyed is also a thing that can be killed. However, rights are - usually, not invariably (as the debate about whether works of art have rights indicates) - properties or aspects of things that can be killed, maimed, suffer pain and pleasure. States are not such things. So the analogy is misleading, and whether states have rights to exist - to not be destroyed or annihilated - has to be established on different grounds.
Well, if states are not the sorts of things to be killed, to be maimed, to suffer pain and pleasure, what are they, then? Without much defense, and following David Copp, here is one promising line of thought: a state is made up of the set of laws and regulations (including constitutions) that are used to govern a people over a territory. I accept a distinction between a people, a territory, and a state: there are the people of Greece (the Greek people), there is the territory of Greece, and there is the state of Greece, the governing rules and laws by and through which the people and the territory are ruled. The country of Greece, comprised of the state, the people, and the territory, can thus withstand the vast number of changes in the way it is run (from monarchies to successive republics). A country can endure through successive changes in its state-aspect, as long as its territory and its people remain more or less intact. Note also that while having a state requires a people and a territory (states-in-exile are not counter-examples), there can be a people without a state (e.g., the Palestinian refugees), and there can be a territory and a people without a state (e.g., the Palestinian people in the Palestinian territories). In short, a state is some sort of a political entity existing to serve, no matter how badly, its people. If this is correct, states are not the sort of thing to be killed or maimed or to suffer pain and pleasure. On the face of it then, states are not the sort of thing to have rights, let alone to exist.
But states do exist to serve their people, and so, first, whatever rights they do have are derivative from the rights that the people have. What I mean by “derivative” is straightforward, namely, that the very reason as to why a state has rights has to do with whatever rights and goods its people have. If, for example, a state persecutes its own people, or even a chunk of them, questions will be raised about its legitimacy. That is, if a state does not serve it people well or treats them in a systematically unjust manner, then it might very well be that the state - but not the country or the people - has no so-called right to exist. (Of course, it is a difficult issue regarding when to draw the line between a state's being legitimate and a state being illegitimate, but these are irrelevant to the issue.) On this score, and waiving issues having to do with the treatment of its Palestinian and Arab citizens, Israel is certainly not persecuting its own people. Going solely by this criterion, Israel is a legitimate state; it has the “right to exist.”
It is worth pausing to register a crucial point, one needed for what follows. To have a right usually entails a corresponding duty. If I have a right to this book, this means you have the duty to not interfere with my use of the book. If a state has the right to exist, meaning the right to continue to exist, it would entail the main duty on the part of other states to preserve it, to ensure that it not be destroyed. Now I find this to be a somewhat bizarre conclusion. While it makes sense to claim that people have duties not to kill each other, duties perhaps entailed by our rights to life, it sounds strange to claim that states have the duties to preserve other states (as opposed to people or inhabitants of states). Now my intuitions about this might be off kilter, but if they are on the right track, they might indicate why states as such do not have any rights and why whatever so-called rights they have are entirely derivative from whatever rights their people have. For example, it might be that the main, if not only, reason we can offer as to why states have duties to preserve other states has to do with the fact that states have duties to preserve those entities - states - that are serving their peoples and ensuring the latter's well-being. But be that as it may, the more crucial idea is that it is clear that states do not have any duty to preserve illegitimate states. It is bizarre enough to claim that states have duties to preserve each other. But it goes beyond the bizarre - to the realm of the false, so to speak - to claim that states have duties to preserve illegitimate states. Surely no such duties exist. It then follows that illegitimate states have no rights to continued existence.
Is how well a state serves its own people the sole criterion for the state's legitimacy? Surely not. Other criteria come to mind, some of which have to do still with the state's own people (e.g., whether it was democratically elected). But others have to do with its treatment of other people. That is, if a state's genesis and continued existence depend on the ill treatment of others, this, too, would cast serious doubts about the state's legitimacy and so cast doubts about its “right to exist.” If a state, for instance, depends for its continued existence on the repression of another people in another territory and on the use of the latter's resources, leaving little to the inhabitants, then the state's actions are immoral. But, and never mind how, if such actions stem from the very constitution and laws of the state in question, then not only are the state's actions immoral, its very existence is illegitimate - it has no “right to exist.”
Thus far, I have tried to argue for two claims. First, a state's right to exist is derivative; it depends on considerations having to do with the state serving its own people and treating other states and peoples properly. States as such have no rights, and whatever rights they have derive from the rights of the people. Second, whether a state actually has the rights in question depends on the particular state and the extent to which it is treating its people well and not existing at the very expense of another people.
With respect to the first claim, Israel presents no special difficulties. Like any other state, its rights, including the “right to exist,” are derivative. It is with respect to the second claim that difficulties arise. First, Israel came into existence at the expense of the Palestinians - from 1947 to (roughly) 1952, it managed to ethnically cleanse over 800,000 Palestinians from their villages and lands, and has managed to almost completely destroy these villages. So its very genesis is morally dubious at best and illegitimate at worst. One might object that almost all states came about in immoral ways, and so we should not make an exception of Israel. But there is a simple rely to this: many of those expelled from their lands and their descendents are still around; many live in refugee camps; many still possess the titles to their houses and lands; and many, many have completely maintained their Palestinian identity. They are, to use a cliché, knocking on Israel's door, demanding repatriation, or at least, recognition. So Israel's genesis is recent and its effects are very much with us still, unlike the other historical cases. When these conditions obtain, a state's moral past is relevant to its legitimacy.
Its genesis aside, Israel defines itself as the Jewish state. In doing so, it recognizes only Jewishness as a nationality and excludes other non-Jewish identities - hence its obsession with maintaining the demographic Jewish majority of the country. Note three things. First, Israel refuses to allow the return of the Palestinian refugees precisely because it deems doing so to be threatening to its Jewish character, understood in terms of Jewish numerical majority. Second, being a Jewish national of the state is not the same thing as being, say, a French national of France. If I were to immigrate to France and obtain French citizenship, I automatically become a French national. Not so with Israel. If I, a non-Jew, were to become an Israeli citizen, I would not thereby become a Jewish national (not unless I convert). Thus, Israel's legitimacy as a state is bound to the question of how it is to treat its non-Jewish citizens - an issue that has proven painful with respect to its Palestinian, non-Jewish (and, to some extent, Druze) citizens. Third, if only democratic states can be legitimate states, and if Israel's defining itself as the Jewish state is bound to imply some deeply embedded non-democratic practices, then questions regarding its legitimacy also loom large.
Thus, there are serious concerns regarding its legitimacy as a state not only with respect to Israel's genesis, but also with respect to its very continued existence as the Jewish state. These concerns are three and can be described as external (its treatment of the Palestinian refugees), internal (its potential non-democratic practices that stem from its exclusionary nature), and internal-external (its potential attitude towards potential Israeli citizens who are non-Jews). The point is not that Israel is not a legitimate state. It is, rather, more modest, namely, that no one, in light of these concerns, can simply assert, let alone assert with ease, that Israel has the right to exist. Whether it does depends on its legitimacy, and the above three concerns raise serious doubts about that.
One might object that even if Israel as a state does not have the right to exist, Israel the country does, and that is what is meant by the usual phrase “Israel's right to exist.” But this simply won't do. Briefly: a country is made up of a state, a people, and a territory, and so its legitimacy - and in turn its “right to exist” - depends on whether these three are legitimate. There is nothing illegitimate about the Israeli people (I'm not even sure what that would mean), but there are serious concerns about its territory. Were Israel to have its way, it would annex large swaths of the West Bank and, from what we can tell, it would also keep the Syrian Golan Heights, a territory currently, like the West Bank, under Israeli occupation. Such an action would not only be illegal under international law, but also immoral, if only in its subjection of people to control they do not want. But my concern is really the state: for a country to have the “right to exist” its state must be legitimate. If not, then the country has no such right. This does not mean, of course, that it would be moral to treat its people badly, to kill, terrorize, or maim them, for example.
I have raised some serious concerns regarding Israel's so-called right to exist. Any right to that effect will derive from its legitimacy as a state. Because Israel's genesis and continued existence - as a state, not just as its actions, conducted somehow accidentally or due to some bad apples in the government - is at the moral expense of a people (Israeli and non-Israeli Palestinians) who have rights against it, then its legitimacy as a state is in doubt. But if so, then its “right to exist” is in doubt, too. This sounds right. The conclusion is confirmed by the thought that if Israel is, by its very essence, a state that excludes other people who have rights against it, then other states surely do not have duties to preserve it. No state has the duty to preserve another state that is illegitimate (which is not the same as having the duty to attack it; these are not the same duties).
I will conclude with two final issues. First, can one recognize Israel's existence without recognizing its right to exist? And what's the difference? One, indeed, can. To do the former is to recognize Israel's legal place among the community of nations, as an entity with representatives, institutions, and other bodies that one is willing to deal with. But this is a far cry from recognizing its right to have these things.
Second, it seems that from what I have said that it follows that two claims cannot both be true, namely, that Israel is the Jewish state and Israel has a right to exist. The thought is that since I have cast doubts on the latter's existence based on considerations having to do with the former, it seems the two cannot be both true. Whether this is correct depends on what we mean by “Jewish state” and whether we must understand “Israel” to refer to “Jewish state” understood along certain lines. If “Jewish state” means “a state that maintains a Jewish majority,” then, yes, Israel, where it exists now, does not have the right to maintain itself as such a state. But surely this is not the only meaning that “Jewish state” has (an issue that I cannot go into now and that much has been written on). If so, then both can indeed be true, and that is, indeed, very fortunate, for denying Israel's right to exist does not amount - not by any long shot - to denying Israelis other rights, such as the right to lead safe lives, to pursue their happiness and life-plans, and to live in dignity.