The HAMAS Case

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REPORT ON ISRAEL’S “RIGHT TO EXIST”

BY

PROFESSOR AVI SHLAIM FBA

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A. INSTRUCTIONS

1. I have been instructed by Riverway Law to provide a report on matters within my expertise in support of the application to the British Home Secretary to deproscribe Harakat al-Muqawamah al-Islamiyyah (‘Hamas’).

2. One of the preconditions the British government often provides for engaging with Hamas is that it recognises Israel’s ‘right to exist’. The purpose of this report is to demonstrate that no such right exists under international law and that since 1967, Israel has politicised and weaponised the phrase to obstruct peace talks and smear those who refuse to recognise the ‘right’ as antisemitic. I give this Report in my personal capacity.

B. QUALIFICATIONS

3. I was born in Baghdad on 31 October 1945 to a Jewish family. I have dual nationality, British and Israeli. I went to school in Israel and I served in the Israel Defence Force (“IDF”) between 1964 and 1966.

4. I received three degrees from British universities. I graduated from Jesus College, Cambridge in 1969 after which I obtained a Masters in Economics the following year from the London School of Economics. I finally read my PhD at the University of Reading where I remained a lecturer and reader in politics from 1970 through to 1987.

5. From 1987 through to 1996, I held the Alastair Buchan Reader position at St Anthony’s College, Oxford, which time I also became the director of graduate studies – continuing that latter role until 2001.

6. I am an Emeritus Fellow of St Antony's College and an Emeritus Professor in International Relations at the University of Oxford. I was elected Fellow of the British Academy in 2006 and was awarded a British Academy Medal for Lifetime Achievement in 2017.

7. I am a historian and my academic expertise is mainly on the international relations of the Middle East and my main research interest is the Arab-Israeli conflict.

8. My books on the Middle East include

• Collusion across the Jordan: King Abdullah, the Zionist Movement, and the Partition of Palestine (1988);

• War and Peace in the Middle East: A Concise History (1995);

• Lion of Jordan: The Life of King Hussein in War and Peace (2007); and

• Israel and Palestine: Reappraisals, Revisions, Refutations (2009);

• The Iron Wall: Israel and the Arab World (first edition 2000; updated second edition 2014).

9. My most recently published book is Three Worlds: Memoirs of an Arab-Jew (2023).

10. I have co-edited the following books: The Cold War and the Middle East (1997); The War for Palestine: Rewriting the History of 1948 (2001, second edition 2007); and The 1967 Arab-Israeli War: Origins and Consequences (2012).

11. I have also published a number of scholarly articles and countless newspaper articles. I am also a frequent contributor to newspapers and a commentator on radio and television on Middle Eastern affairs.

12. In order to provide more comprehensive details, I attach both my short form curriculum vitae and my long form curriculum vitae.

C. THE RIGHT TO EXIST

13. No nation has a ‘right to exist’ under international law and Israel is no exception. Israel's ‘right to exist’ is not a legal right but an ideological and emotionally loaded catch phrase. Ultimately, what matters is not the ethical question upon which there are opposing points of view, but the fact that Israel undoubtedly does exist. For that reason alone, it has exactly the same obligations concerning territory, aggression, the laws of war, military occupation, human rights etc as any other state. The key issue is the extent to which it violates them. Reasoned debate about this is within the ambit of lawful free speech.

14. One of the preconditions the British government has placed on engaging with Hamas is that it recognises Israel’s ‘right to exist’. Not only is there no such right under international law but the phrase has been politicised and manipulated since 1967 to smear and marginalise those who refuse to do so as antisemitic, not just Hamas but even ordinary British citizens resident in the UK. I will try to place Israel's ‘right to exist’ in its proper historical perspective.

D. BACKGROUND

15. On 29 November 1947, the United Nations voted in favour of the partition of mandatory Palestine into two states: one Jewish, one Arab. The Jews accepted partition; the Arabs went to war to nullify it. In the course of the 1948 war, the Jewish state extended its territory from the 55 percent granted by the UN to 78 percent of mandatory Palestine. The West Bank was captured and later annexed by Transjordan, 730,000 Palestinians became refugees, and the name Palestine was wiped off the map. After the end of hostilities Israel signed, in 1949, armistice agreements with Lebanon, Syria, Jordan, and Egypt. These are the only internationally recognised borders that Israel has ever had. On the legitimacy of Israel within these borders, however, there were conflicting opinions. Israel's critics saw it as an outpost of European colonialism, a usurping entity, and a racist project. In their eyes, the State of Israel had no legitimacy in any shape or form. In the eyes of the rest of the international community, however, Israel enjoyed legitimacy within its 1949 borders.

16. The June 1967 war changed the situation fundamentally. In the course of the war, Israel captured the Golan Heights from Syria, the West Bank from Jordan, and the Sinai Peninsula from Egypt. In the immediate aftermath of the war, Israel began to build civilian settlements on occupied Arab land in flagrant violation of the 4^th Geneva Convention. Most of Israel's actions in the aftermath of the war were illegal. The annexation of Jerusalem was illegal, the annexation of the Golan Heights was illegal, and all the settlements are illegal. The blockade of Gaza, which Israel imposed in 2007 and which is still in force today, is illegal. It is a form of collective punishment which is proscribed by international law. In 1979 Israel returned the Sinai Peninsula to Egypt as the price for a peace treaty; in 1994 it signed a peace treaty with Jordan, and in 2005 it withdrew unilaterally from the Gaza Strip before re-entering it in October 2023 where it remains today. But the creeping annexation of the West Bank continues to this day.

17. Israeli governments have done their best to obliterate the Green Line (the old international border) on the West Bank and to treat the settlement blocs as part of the State of Israel. This called into question Israel's legitimacy. For Israel's radical critics this made little difference: Israel remained an illegitimate, violent, usurping entity. On the other hand, many of Israel's supporters, including liberal Israelis and Jews elsewhere, made a distinction between Israel within its 1949 borders which they consider legitimate, and the Zionist colonial project beyond the Green Line which they regard as illegitimate.

E. ISRAEL’S RIGHT TO EXIST

18. The notion of Israel's ‘right to exist’ thus became much more problematic in the post-1967 era. In the 1970s Israeli spokesmen insisted on this right ever more vociferously in the context of mounting criticism of the illegal occupation. On becoming prime minister Likud leader Menachem Begin stated in the Knesset ‘Our very existence per se is our right to exist’. Despite this common sense position, Israel's spokesmen continued to insist that Israel's right to exist had to be acknowledged unambiguously by its opponents and that denial of this right was proof of antisemitism. Dwelling on Israel's right to exist served to divert attention from mounting international opposition to its illegal occupation and from the ever louder calls to grant the Palestinians equal rights. The truth of the matter is that it was not the Palestinians who were delegitimising Israel but the Israeli government which sponsored the occupation and violated the human rights of the Palestinians under its military rule.

19. Israel depicted the PLO as a terrorist organisation that denied its right to exist. This was certainly true of the 1968 Palestinian National Charter. But the PLO gradually moderated its political programme. In 1988, the Palestinian National Council voted to recognise Israel's right to exist, to accept all UN resolutions relating to the Israeli-Palestinian conflict going back to the 1947 partition resolution, and to renounce the armed struggle. Despite these moves, Israel's rejection of the PLO remained absolute rather than conditional. Consequently, no negotiations could take place for a peaceful resolution of the conflict.

20. On 13 September 1993, Israel and the PLO signed the Oslo Accord. This was a historic breakthrough, the first agreement between the two principal parties to the conflict. Mutual rejection was replaced by mutual recognition. The accord boosted Israel's legitimacy on the international stage and resulted in the award of the Nobel peace prize for its architects. But the terms of the agreement reflected the power relations between the two parties. The PLO explicitly recognised Israel's right to exist. The Israeli government, however, only recognised the PLO as the representative of the Palestinian people. Israel most definitely did not acknowledge that the Palestinian people have a right to national self-determination. In the Oslo Accord there is no mention, let alone a promise, of a Palestinian state. The Oslo peace process broke down (in my view primarily because of the relentless expansion of Israeli settlements on the West Bank) but one thing did not change: Israel's denial of the Palestinian right to independence and statehood.

F. CITIZENSHIP IN ISRAEL

21. The Labour Party accepted in principle the idea of a two-state solution to the conflict but the terms it offered fell short of the minimal Palestinian demands. The right-wing Likud Party, on the other hand, has consistently rejected the idea of an independent Palestinian state. It is a proponent of Greater Israel and therefore of the doctrine of permanent conflict. Its ideology maintains that the Jewish people have an exclusive right to sovereignty over Judea and Samaria (the Biblical names for the West Bank). The Likud was willing to put this claim in abeyance during peace negotiations but never abandoned it.

22. Both Labour and Likud are vociferous in their call for Arab recognition of Israel's right to exist, but they are curiously reluctant to acknowledge it when it happens. In 2002, to give one striking example, the Arab League unanimously adopted the Arab Peace Initiative at their Beirut summit. This plan called for formal peace agreements and full normalisation with all 22 members of the league in return for Israeli withdrawal from the territories occupied in June 1967. The resolution made it clear that the Arab states, individually and collectively, were ready to pay the price for peace not only by recognising Israel as a legitimate state in the area but also to normalise relations with it. Israel's response to this brave initiative was a resounding silence.

23. In 2007 Israel changed its conditions for negotiating a peace settlement with the Palestinian Authority. Previously, it used to insist that the Palestinians recognise Israel's right to exist. From now on it insisted that they recognise Israel's right to exist as a Jewish state. This demand is completely preposterous: diplomatic recognition is of a regime that rules over a clearly demarcated geographical area; it has nothing to do with the political or religious make up of state being recognised. Furthermore, the demand ignores the fact that a fifth of the citizens within Israel's pre-1967 borders are Palestinians and that they cannot possibly be expected to go along with it. Israel introduced this bizarre condition in the certain knowledge that it would be rejected. It was a non-starter designed to derail the negotiations. The purpose of the ploy was to place an insurmountable hurdle and to shift the responsibility for the ensuing diplomatic deadlock from Israel's leaders to the Palestinian Authority.

G. THE DEMAND OF RECOGNITION

24. During the premiership of Benjamin Netanyahu, from 2009 to 2021, the demand of Palestinian recognition of Israel as a Jewish state became deeply entrenched. This demand served, as it was intended, to preclude the possibility of meaningful peace negotiations with the Palestinians. Although Netanyahu is the secular leader of a secular party, he ramped up the rhetoric about the imperative of preserving the Jewish character of the State of Israel. He also weaponised antisemitism in his campaign to discredit critics of Israeli state policies.

25. Netanyahu’s principal target was BDS, the campaign for Boycott, Divestment, and Sanctions. He denounced it hysterically as antisemitic and as an existential threat to Israel. His frequently repeated but unsupported claim was that BDS denied Israel's right to exist. The reality is that BDS is a global, grassroot, non-violent movement whose objectives are grounded in international law. Its principal objectives are an end to the occupation of Palestinian lands, equal rights for the Palestinian citizens of Israel, and the right of return of the 1948 refugees.

26. In the campaign against BDS, the very definition of antisemitism has been expanded to include all types of anti-Zionism. A dangerous dynamic was thus set in motion. The worse Israel behaves towards the Palestinians, the greater is the popular appeal of BDS, and the more ferocious become Israel's attempts to delegitimise it. Israel describes its campaign against BDS as an effort to ‘delegitimise the delegitimisers’. This glib phrase overlooks the part that its own malpractices and serial war crimes play in turning the country into an international pariah.

H. ISRAEL AS AN APARTHEID REGIME

27. Israel prides itself on being both a Jewish and a democratic state. This is clearly stated in the 1992 Basic Law. Pre-1967 Israel was a democracy, a flawed democracy to be sure but so are most democracies. There was a whole raft of legislation which discriminated against the Palestinian citizens of the country. Nevertheless, it was a procedural democracy with universal franchise, political parties, and elections. On the other hand, Israel plus the occupied territories is most emphatically not a democracy. It is an ethnocracy: a system of government in which one ethnic group dominates the other. There is another word for such a system of government ̶ apartheid.

28. The claim that Israel is an apartheid state is hotly disputed but it is a fact. At least, that was the conclusion reached by B’Tselem, the highly respected Israeli human rights organisation. Until recently B’Teselem’s reports used to focus on Israeli human rights violations in the occupied Palestinian territories. A point was reached, however, when Israeli practices and policies in the occupied territories could no longer be considered separately from the regime in Israel proper. In January 2021, B’Tselem issued a closely argued position paper entitled ‘A regime of Jewish supremacy from the Jordan River to the Mediterranean Sea: This is apartheid’.¹

It declared: ‘The entire area Israel controls between the Jordan River and the Mediterranean Sea is governed by a single regime working to advance and perpetuate the supremacy of one group over another. By geographically, demographically and physically engineering space, the regime enables Jews to live in a contiguous area with full rights, including self-determination, while Palestinians live in separate units and enjoy fewer rights’.

29. If one accepts this report as a fair and objective description of the state of affairs in Israel/Palestine, as I do, the whole debate about Israel's so-called right to exist becomes an irrelevance, a red herring. The report made it clear what ought to be clear in any case to any fair-minded observer, namely, that we are not dealing here with a ‘conflict’ between two equal parties but a most acute asymmetry of power between oppressors and oppressed, occupiers and occupied, abusers and victims.

I. EXPERT OBLIGATIONS

30. I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

31. I understand that proceedings for contempt of court may be brought by anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

32. I confirm that I have not received any remuneration for preparing this report.

Professor Avi Shlaim FBA

Oxford, the United Kingdom

26 November 2024