"Israel's right to exist" has been challenged in expert testimonies by leading scholars Professor John Dugard and Professor Avi Shlaim. Dugard is an advocate of the High Court of South Africa. He has served intermittently as Judge of the International Court of Justice. His other high-profile appointment was at the United Nations where he served as Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories from 2001 to 2008. Shlaim, who is an author of several books on Israel and Palestine, is an Emeritus Fellow of St Antony's College and an Emeritus Professor in International Relations at the University of Oxford.
Dugard and Shlaim issued their testimonies in response to the UK government's prohibition on schools and universities from engaging with organisations that question Israel's "right to exist". The testimonies are part of a legal action against the former Education Secretary, Gavin Williamson, by UK human rights group, CAGE. In a 2021 letter to schools and universities, Williamson applied pressure to adopt the discredited International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism. The letter also told schools that they were prohibited from engaging with organisations that reject Israel's "right to exist".
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A judicial review of the government's guideline was lodged by CAGE. It argued that no such right exists in international law that prohibits people and groups from questioning a state's legitimacy. "For too long, the political phrase 'Israel's right to exist' has been used as a weapon to silence any debate about the legitimacy of its creation, the right of return of Palestinian refugees displaced by its creation and the apartheid nature of the Israeli state," CAGE said at the time. In July a British High Court ruled against a judicial review.
This week CAGE published the expert testimonies of Dugard and Shlaim. Both challenged the prevailing narrative pushed by the UK government on Israel's "right to exist". Their testimony gave a brief history of the creation of the State of Israel and explained why the claim of a "right to exist" in law and morality is debatable.
Shlaim described Williamson as someone who habitually conflates anti-Zionism and anti-Semitism. He also claimed that the former education secretary had used his ministerial position to restrict freedom of speech on Israel. Commenting on the IHRA and possible financial sanctions that may be imposed if schools refused to adopt it, Shlaim said: "This is a highly controversial and, in my opinion, discredited definition which was promoted by Israel's friends. The two-sentence definition is vacuous, but it is followed by 11 'illustrative examples' of what might constitute antisemitism. Seven of the 11 examples relate to Israel. The real purpose of the definition is not to protect Jews against antisemitism but to protect Israel against legitimate criticism."
Shlaim was one of 77 Israeli academics in Britain who united in response to Williamson's infamous intervention. In January 2021, they sent a letter to vice chancellors and academic senates in England urging universities not to adopt the IHRA document, which they viewed as being "detrimental not only to academic freedom and to the struggle for human rights, but also to the fight against antisemitism."
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Challenging Israel's right to exist, the expert testimonies argued that such a claim has no basis in international law. The idea that states have rights is rejected outright. The point is often made in the following way: Human beings have a right to exist, and to live flourishing lives. The moral and legal justification for the existence of any nation-state is based on their ability to protect and defend the rights of human beings and through serving the interest and well-being of peoples cultures and communities living within the territory they control. When a state fails in this regard for enough of those people for a long enough time, its control comes under challenge and loses its legitimacy. The shelf-life of any state is to the degree it can guarantee the human rights of people in territory controlled by that state.
Though there are many examples, a classic case often cited to highlight that point is Apartheid South Africa. Arguments were raised that Apartheid South Africa should not be recognised as a state and should be expelled from the UN. Although South Africa was not expelled from membership of the world body, the credentials of the South African government were not accepted, and it was denied the right to participate in the work of the General Assembly. In effect, this meant that many countries believed that South Africa no longer had the right to exist as a state because of its policy of apartheid. South Africa lost its legitimacy because of its refusal to guarantee and protect the rights of black South Africans in the same territory.
The arrangement in Apartheid South Africa has many similarities with Israel, which is why every major human rights group has concluded that Israel is committing the crime of apartheid. Within the territory controlled by the occupation state – known also as historic Palestine – seven million of Israel's Jewish population enjoy full rights and privileges, while seven million of the territories' non-Jewish population experience some form of discrimination depending on where they live. Twenty per cent of Israel's Palestinian citizens for example suffer less discrimination than the five million Palestinians in occupied West Bank, Jerusalem and Gaza. Not forgetting also, the six million Palestinian refugees who are refused their right to return while every Jew in the world is granted their "right to return".
Returning to the expert testimonies, Dugard and Shlaim rejected Israel's "right to exist", explaining that such a right cannot be exercised because there is no basis for it in international law. According to Dugard, the rights of a state that are enshrined in international law are the right to territorial integrity; political independence and not to be forcibly attacked by another state. It's not obvious therefore why Israel should be allowed to enjoy these rights given that it has no defined borders, and furthermore not only has it forcibly attacked and occupied the State of Palestine, it continues to annex territory beyond the internationally recognised borders of the apartheid state.
Further arguments rejecting Israel's "right to exist" are demonstrated by the fact that a state may be recognised as a state by some states but not by others. Consequently, it is a state for those countries that recognise it but not for states that do not recognise it. Palestine, for instance, is recognized as a state by 138 countries, which is more than Kosovo, recognised by 100 states.
Perhaps the most powerful objection against Israel's demand on others to recognise its "right to exist" are claims it had made about itself during the country's founding. Israel's declaration of independence was based on the Balfour Declaration, the Mandate of the League of Nations and the General Assembly's Partition Resolution. Every one of those claims have been challenged on legal grounds since 1948. The Balfour Declaration of 1917 for example did not recognise the right of the Jewish people to a state in Palestine. It simply stated that the British government viewed "with favour the establishment in Palestine of a home for the Jewish people" but that this was to be without prejudice to the "civil and religious rights of existing non-Jewish communities in Palestine." The clear and obvious goal of the declaration was to create a "home" for the Jewish people "In Palestine", not erase Palestine as Israel has done to supplant a new state on top of it.
Similar contentions exist with the British Mandate for Palestine and UN Partition Plan. Although the Mandate incorporated the provisions of the Balfour Declaration it made no provision for a Jewish State. As for the partition plan, Palestinians rejected Resolution 181 on account of its unfairness: it gave the Jewish community comprising 33 per cent of the population of Palestine 57 per cent of the land and 84 per cent of the agricultural land.
The message in the expert testimonies can be boiled down to the fact that not only is the British government's suppression of a discussion on Israel's "right to exists" preposterous, ahistorical and an attack on freedom of thought, there can be no discussion about Israel's "right to exist" without a similar discussion about Palestine's right to exist.
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The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.