States are People Too?: Some Thoughts on Self-Determination and Israel’s “Right” to Exist

Published on, February 14, 2003

For approximately a century, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution has been applied to corporations. In other words, companies are — in the eyes of the law — just like people, granted rights of “citizenship” by the Supreme Court. That this arrangement has enhanced corporate power goes without saying. What’s more, by turning companies into citizens with equal rights on a par with flesh and blood humans, the courts of this land have extended the notion of individual liberties beyond its classical interpretation. Corporations, after all, involve persons who already have rights — civil and human — so to grant additional rights (to free association, privacy, free speech, or whatever) to the collective entity known as Enron, or IBM, or Microsoft is to create artificial legal entitlement on a gargantuan and redundant scale.

This said, the same logic should apply to an analysis of nation-states. The idea that states — entities with borders that are almost always contested and the result of military force, fraud or theft — have rights to exist is a fairly modern concept, and presumes that governmental entities are every bit as entitled as flesh and blood humans to life, liberty and the pursuit of their own versions of happiness. That such a belief can prove contentious is an understatement.

This argument is especially prescient with regard to the conflict between Israel and the Palestinian struggle for independence. As a critic of Israeli policies and of the practical impacts of Zionism itself (and a Jew at that), I am always confronted immediately with the charge — usually leveled by other Jewish folks appalled by my unwillingness to tow the line — that I “don’t believe in the right of the state of Israel to exist.”

It’s always tough to respond to such a charge, because in truth I don’t believe in the right of any state to exist, per se. I don’t believe in the right of the U.S. to exist, or France, or Gabon, or Mauritius, or the Netherlands, or Palestine for that matter. States do not have rights. People have rights. So while I support the right of Jews, Americans, the French, the Palestinians and everyone else to live in peace and dignity, free from persecution, discrimination and violence, and able to exercise self-determination (more on this below), that is a far cry from agreeing that a given state, in which such persons find themselves has a “right” to exist.

That Jews as a group have a right to exist is indisputable. Since Jewish individuals are intrinsic members of that group, our individual rights, as the Jews we are, cannot be secured unless our group rights are respected. So too with any ethnic or cultural group: the English, the Scots, the Irish, the Bantu, etc. But to say that because Jews have a right to exist in peace and security, and even to argue that we have self-determination rights, is not to grant that a particular state on a particular plot of land, where a large portion of our group have chosen to reside, has the same right to exist as the people in question.

Self-determination, after all, does not allow any group to impose their vision of government on others who do not share that vision. It does not allow members of one group to take the land of others by force or fraud, just because they desire that land, are self-determined to have it, and have the power to acquire it by force of arms and the collusion of international power-brokers. It does not allow groups to establish repressive regimes or governments that treat citizens unequally, even if that is their self-determined desire. To allow such things is indeed to trample upon the self-determination rights of other peoples, rights which are certainly as absolute as those for the first group.

In other contexts, almost no one would disagree with this argument. For example, rarely have I heard Zionists in the Jewish community argue that American blacks have the right to self-determination (which I certainly support), let alone the right to a state of their own, especially if they might choose to put their state on land where those same Zionists were themselves living. I mean, does anyone believe that if black folks said “We want our own state, seeing as how we are a national group, oppressed for centuries as African Americans, and we want that state to be in Manhattan, including but not limited to Harlem,” that the Jewish community would rise in support of such black “Zionism?”

Of course, one might ask, what would self-determination look like if it did not include the right to statehood? And it’s a fair question. There are several possibilities, including self-rule and autonomous institutional development and control, within whichever states a “nation” lives. And in theory, even statehood is one option for a people with self-determination rights. However for such a choice to be exercised fairly it would have to be as the result of democratic consultation and agreement between all parties that would be effected by the exercise of such a “right.” In the case of Israel, this would mean that the state of Israel’s right to exist would have to be agreed upon beforehand, perhaps as the result of a compromise that would also grant the right to Palestinian statehood. And these compromised exercises of total autonomy (the result of realistic assessments as to limited land space and the need to broker a deal) are not vitiated, enhanced, or revoked because one or another party acts in violation of the agreement at some point in time. The individuals on both (or all) sides have inalienable rights which must be respected.

This is why the claim made by Zionists that Arabs alone rejected the U.N. partition agreement that would have created a Palestinian state in 1948 is irrelevant, even if it were true (which it is not, as Israel rejected and violated several parts of the agreement as well). The Arab masses were never consulted about partition in the first place, nor did they ever agree to such an arrangement, which would have resulted in over half of the land of Palestine being given to Jews, who at that time comprised only thirty percent of the population and owned only six percent of the land.

By the same logic, it is also the case that the depredations of the Israeli government do not make invalid the legitimacy of Jewish autonomy either. In both cases, the rights to self determination of Palestinian Arabs and Jews must be respected, hopefully by mutual agreement to create equity, either in a two state solution or a bi-national, secular and democratic one-state solution. But either way, the state or states that emerge are not the entities to which “rights” adhere. The rights belong to the people. The states are artificial creations.

Of course this doesn’t mean that borders have no validity. It is clearly wrong morally and as a matter of international law for states to attack other states, or for extra-territorial groups to attack persons in a given state, even if the state itself has no “rights” to speak of. Since people have rights, they have the right to be secure in their homes and have the right not to be attacked violently. So this means that Israel has the “right” not to be violently destroyed by hostile neighbors or various terrorist groups, just as those neighbors have the “right” not to be destroyed, invaded or attacked by Israel. But these rights to not be attacked exist because such attacks would violate the rights of the people in those states, not because the states themselves are entitled to inviolable borders as currently drawn up.

As such, one could argue that Israel has the “right” not to be attacked — because an attack would violate its citizens rights as individuals — but still not accept that Israel has the “right” to exist as currently constituted: as a Jewish state for example. Likewise, as I have mentioned elsewhere, one could logically argue that the U.S. had the right not to be attacked by the Soviet Union in 1957, or 1962 — two high-water marks for the Cold War — but still argue that the U.S. had no “right” to continue to exist as it did in those years: as an apartheid state, where racial discrimination was practiced legally and segregation still ruled the South. Negative rights — to not be overrun by hostile forces for example — do not automatically translate into positive rights, such as those that allow one to establish any kind of government that one wants, even one that violates the rights of others to equal treatment.

What all this means is fairly simple: accusing critics of Israel of not recognizing Israel’s right to exist is the ultimate non sequitur. It has nothing to do with anything, unless one accepts a priori that states — the artificial, often imperial creations of ambitious elites — are organic entities entitled to full and equal treatment as if they were human beings, as with corporations. And even if one does accept such an idea, the fact remains that while Israel does exist, Palestine as a state does not. So while militant Zionists charge the PLO and others with not recognizing the right of Israel to exist, they hypocritically refuse to recognize the right of Palestine to exist, and work actively towards preventing such a state from coming into being altogether.

In the end, the ultimate questions are merely these: do the rights of one group-in this case Jews-override the rights of others, such as the Palestinians? Are Jews more entitled to a homeland than Palestinians? And are Jews entitled to this homeland, even if it requires the taking of other people’s land? If the answers one gives to these questions are yes, then there is little more to discuss. The racism implicit in such responses cannot possibly allow for a just solution to the current conflict. If the answers however are no, then perhaps we can move beyond simplistic discussions about “rights” to exist, and instead focus on the nuts and bolts work of creating justice, with peace, for all parties involved. And perhaps we can have an honest discussion — without censorship and charges of self-hate and anti-Semitism — as to what justice will require. Even if one of the options might have to be the fundamental altering of the Jewish State, into a state of its citizens, with liberty and full equality for all.

It’s just a thought.

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