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IMEMC
 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also refused to recognise Israel, or have withdrawn diplomatic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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