Feb 25, 2015

ISRAEL'S LEGAL FOUNDING

BY ALAN DERSHOWITZ - PRAGER UNIVERSITY 

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 law.

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 Israeli life.

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 examples.

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 law.

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 needs.

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 it?

I'm Alan Dershowitz, Professor of Law at Harvard University for Prager University.