Feb 25, 2015
ISRAEL'S LEGAL FOUNDING
BY ALAN DERSHOWITZ - PRAGER
WHEN THE STATE OF ISRAEL WAS FOUNDED
IN 1948, IT WAS DONE SO WITH THE APPROVAL OF THE UNITED NATIONS.
BUT TODAY, ISRAEL'S ENEMIES ROUTINELY CHALLENGE THE LEGITIMACY OF
ITS VERY EXISTENCE. SO, UNDER INTERNATIONAL LAW, WHO'S RIGHT?
ISRAEL? OR ITS ENEMIES?
Of all the countries that have come into existence in the last
century, no country's birth certificate is more legitimate than
that of Israel.
One reason is that many of the men who founded the country --
Theodore Herzl, Ze'ev Jabotinosky, David Ben Gurion, Menecham
Begin, and Yitchak Shamir -- were either lawyers or had legal
training. They were obsessed with "making it legal."
Unlike almost every other country, lawyers, not generals, were the
midwives of Israel's birth -- or more accurately re-birth, since it
had existed as an independent country twice before in history.
Step by legal step Israel moved legally toward nationhood -- from
the Balfour Declaration in 1917, to the San Remo Agreement in 1920,
the League of Nations Resolution in 1922, to the Anglo-American
Convention on Palestine in 1924, to the partition of land ordained
by the United Nations in 1947 into a nation-state for the Jewish
people and an Arab state.
Yet, immediately upon its lawful establishment in 1948 as the
nation-state of the Jewish people, Israel was illegally attacked by
all the surrounding Arab states as well as by elements of the local
Arab population. In defending its right to exist during that war,
Israel lost one percent of its population, including many civilians
and Holocaust survivors. It also lost some of the land assigned to
it by the United Nations. It captured other land from the
aggressors that was originally assigned to the Arab state. The end
result of that war against Israel was an armistice line that
prevailed until 1967, when Israel was once again attacked by Jordan
during Israel's war with Egypt and Syria.
Between 1948 and 1967, despite the armistice, Arab terrorists
continued to infiltrate Israeli borders and to injure and kill
Israeli citizens. This was part of an official policy by the
surrounding governments and by leaders of local Palestinian groups.
All of it was in violation, obvious violation of International
Following the establishment of Israel a transfer of populations
occurred. Several hundred thousand Arabs who fled from Israel
during the War of Independence were not allowed to return. Some had
chosen to leave, assured by their Arab leaders that the fledging
country would not last a week. Others were forced to leave. At that
time, approximately the same number of Jews were forced to leave
Arab countries -- another violation of International law -- where
they had lived for thousands of years. The difference was that Arab
countries kept the Arabs who left Israel in refugee camps, where
many of them still live more than half a century after leaving
Israel. And Israel, on the other hand, fully integrated all the
Jewish refugees from Arab countries into Israeli society, where
many of their descendants now serve in the highest positions of
Israel's establishment as the nation-state of the Jewish people by
entirely lawful means is quite remarkable for several reasons.
First, there is no country in the world that is as surrounded by
hostile enemies as is Israel. It's been that way since 1948. Yet
Israel sought the way of the pen rather than of the sword. It has
needed the sword to survive. But its preference has always been for
the pen, that is, for peaceful negotiations. Its peace treaty with
Egypt in 1978, its peaceful abandonment of Gaza in 2005, and its
many attempts to reach a peace agreement with the Palestinians are
Yet despite its entirely lawful origins, Israel is the only country
in the world today whose origins -- and therefore its very
legitimacy -- have been questioned by the General Assembly of the
United Nations, by numerous member nations and by many
organizations that claim the mantle of human rights and the rule of
Ironically, current attacks on Israel's legitimacy have taken the
form of "lawfare" - the use of international law as a weapon. Any
fair tribunal that judged Israel by universal standards would
reject such attacks out of hand. But, alas, international courts,
like the UN itself, have been packed by those bitterly antagonistic
to the nation-state for the Jewish people. For example, the
misnamed International Court of Justice refuses to acknowledge that
Israel, a country that deals with terror attacks and the threats of
terror attacks on a regular basis, has any special security
As I've demonstrated, this phenomenon -- questioning the very right
of Israel to exist as the nation-state of the Jewish people --
cannot be explained on legal grounds or on any other rational
basis, for that matter.
So, then, how can this worldwide attack on Israel alone be
explained? In only one way: It is pure bigotry. And there's a word
for this bigotry. Anti-Semitism.
If you have a better explanation for why the one country in the
world whose right to exist is denied is also the one country that
is the nation-state of the Jewish people, I ask you, what is
I'm Alan Dershowitz, Professor of Law at Harvard University for