The Maccabean Online

Israel’s Rights as a Nation-State in International Diplomacy

By Alan Baker

Jerusalem Issue Brief

Vol. 11, No. 16 18 September 2011



• A concerted campaign is being waged against Israel to question its 
very legitimacy in virtually every aspect of its historical, political, and 
cultural life, with the aim of undermining the very foundations of Israel’s 
existence.

• In response, several world-renowned experts have joined to present an 
authoritative exposition of Israel’s Rights as a Nation-State in 
International Diplomacy, published jointly by the Jerusalem Center for 
Public Affairs and the World Jewish Congress.

• The volume includes: “The National Rights of Jews“ by Prof. Ruth 
Gavison, “From the Balfour Declaration to the Palestine Mandate“ by Sir 
Martin Gilbert, “Self-Determination and Israel’s Declaration of Independence“ 
by Prof. Shlomo Avineri, “The United Nations and Middle East Refugees: The 
Differential Treatment of Arabs and Jews“ by Dr. Stanley A. Urman.

• “Israel’s Rights Regarding Territories and the Settlements in the Eyes 
of the International Community“ by Amb. Alan Baker, “The Historical and 
Legal Contexts of Israel’s Borders“ by Prof. Nicholas Rostow, “The 
Misleading Interpretation of Security Council Resolution
242 (1967)“ by Prof. Ruth Lapidoth, “Defending Israel’s Legal Rights to 
Jerusalem“ by Amb. Dore Gold.

• “Palestinian Unilateralism and Israel’s Rights in Arab-Israeli Diplomacy“ by Dan Diker, “Is the Gaza Strip Occupied by Israel?“ by Col. (res.) Pnina Sharvit-Baruch, “The Violation of Israel’s Right to Sovereign Equality in the United Nations“ by Amb. Alan Baker, and “Countering Challenges to Israel’s Legitimacy“ by Prof. Alan M. Dershowitz.As the United Nations is about to be manipulated by a Palestinian attempt to impose its statehood on the international community in a manner that undermines a vital negotiating process based on the UN’s own resolutions, a concerted campaign is being waged against Israel by Palestinian, Muslim, and other non-Arab elements in the international community to question the very legitimacy of Israel in virtually every aspect of its historical, political, and cultural life, with the aim of undermining the 
very foundations of Israel’s existence.

In response, several world-renowned experts have joined to present an authoritative exposition of Israel’s Rights as a Nation-State in International Diplomacy, edited by Alan Baker, former legal counsel of Israel’s Foreign Ministry and former ambassador to Canada, and published 
jointly by the Jerusalem Center for Public Affairs and the World Jewish Congress.

The National Rights of Jews

Prof. Ruth Gavison, Professor (emerita) of Human Rights at the Faculty of 
Law of the Hebrew University of Jerusalem and recipient of the Israel Prize 
in Law (2011), challenges the often- repeated denial by the Arabs of the 
rights of Jews to establish their own nation. The Jews have always had the 
characteristics of a nation, both ethnical and cultural, and not only 
religious. This was true before Israel was established and it is true today. 
It is justified for Jews to have sought revival of their political 
independence in their ancient homeland – Zion.

Zionism is not a colonial or an imperialist enterprise. The Arab population 
in pre-state Israel had never enjoyed or established political independence, 
and Jews were at liberty to seek political revival in the only place in the 
world that had been their homeland.

“An Overwhelmingly Jewish State” - From the Balfour Declaration to the 
Palestine Mandate

World-renowned British historian and author Sir Martin Gilbert, who is 
Winston Churchill’s official biographer, discusses how Great Britain viewed 
the right of the Jews to a national home in Palestine. The Times of 
London declared on September 19, 1919: “Our duty as the Mandatory 
power will be to make Jewish Palestine not a struggling State, but one that 
is capable of vigorous and independent national life.”

Winston Churchill announced publicly on March 28, 1921: “It is manifestly 
right that the Jews, who are scattered all over the world, should have a 
national center and a National Home where

some of them may be reunited. And where else could that be but in the land 
of Palestine, with which for more than 3,000 years they have been intimately 
and profoundly associated?”

On June 3, 1922, the British Government issued a White Paper, known as the 
Churchill White Paper, which stated: “During the last two or three 
generations the Jews have recreated in Palestine a community, now numbering 
80,000....It is essential that it should know that it is in Palestine as of 
right and not on the sufferance. That is the reason why it is necessary that 
the existence of a Jewish National Home in Palestine should be 
internationally guaranteed, and that it should be formally recognized to 
rest upon ancient historic connection.”

Churchill told the 1937 Palestine Royal Commission: “We committed ourselves 
to the idea that someday, somehow, far off in the future, subject to justice 
and economic convenience, there might well be a great Jewish State there, 
numbered by millions, far exceeding the present inhabitants of the country 
and to cut them off from that would be a wrong.”

Self-Determination and Israel’s Declaration of Independence

Israel Prize recipient Prof. Shlomo Avineri, Professor of Political Science 
at the Hebrew University and Director-General of the Israel Foreign Ministry 
in the first term of Prime Minister Yitzhak Rabin, analyzes Israel’s right 
to self-determination in the context of its Declaration of Independence. He 
notes that the Arabs of Palestine and Arab states went to war not only 
against the emerging Jewish state, but also against a UN resolution in the 
only known case when member states of the UN not only did not abide by a UN 
resolution but went to war against it.

Had the Arab community gone through a profound internal debate and come out 
of it – as did the Jewish community – with an acceptance, however reluctant, 
of the compromise idea of partition, be it on moral or realistic grounds, or 
both – history would have been different: on May 15, 1948, two states – 
Israel and Palestine – would have been established. There would have been no 
1948 war, no Palestinian refugees, no nakba, no further Arab-Israeli wars, 
no terrorism, and no Israeli reprisals. This could have happened – but it 
did not. The moral and political responsibility rests on the shoulders of 
the Arab side. Had the Palestinian Arabs and the countries of the Arab 
League chosen a different path, this would have made the Middle East a 
region of prosperity, mutual respect, progress and abundance for all its 
peoples.

Despite the difficult war situation, the practical steps taken by the newly 
established, independent State of Israel reflected the country’s willingness 
to abide by obligations inherent in the UN partition plan. Israel adopted a 
multicultural approach toward its Arab minority, maintaining the status of 
Arabic as an official language. Israeli Arabs send their children to schools 
which teach in Arabic, with the curriculum tailored to their culture.

The acceptance by most Israelis today of a two-state solution – of a Jewish 
and a Palestinian state living in peace with each other – is a testimony to 
the fact that, despite decades of war and siege, the fundamental decision adopted by the Jewish community in 1947 continues to guide the moral compass of the Jewish state.

The United Nations and Middle East Refugees: The Differential Treatment of 
Arabs and Jews

Dr. Stanley A. Urman, Executive Director of Justice for Jews from Arab 
Countries (JJAC), contrasts the considerable diplomatic advocacy and 
discussion concerning the Palestinian refugee issue with the utter lack 
of consideration for the Jewish refugee issue. The mass violations of 
the human rights of Jews in Arab countries and the displacement of over 
850,000 Jews from their countries of birth has never been adequately addressed by 
the international community, although on two separate occasions, the United Nations High 
Commissioner for Refugees (UNHCR) specifically declared that Jews fleeing 
from Arab countries were indeed refugees “who fall under the mandate” of the 
UNHCR.

From 1949 to 2009, General Assembly resolutions focused much greater 
attention on the issue of Palestinian refugees (163 resolutions) – some 20 
percent – than on any other Middle East issue. There were never any General 
Assembly resolutions that even mention Jewish refugees from Arab countries. 
Since 1947, billions of dollars have been spent by the international 
community to provide relief and assistance to Palestinian refugees. During 
that same period, international resources provided to Jewish refugees from 
Arab countries were negligible.

For the United Nations or other international entities to continue to ignore 
or reject the rights of Jewish refugees from Arab countries is to validate 
past and continuing injustice.

Israel’s Rights Regarding Territories and the Settlements in the Eyes of the 
International Community

For over 40 years, it has been persistent UN practice to repeat in parrot 
fashion the phrases “Israel the occupying power,” “the occupied Palestinian 
territories,” and to refer to Israel’s settlement activity as illegal, 
irrespective of the facts and the correct legal situation. Amb. Alan Baker 
stresses that the Israel-Palestinian Interim Agreement of 1995, signed by 
Israel and the PLO, was witnessed by the United States, the European Union, 
Egypt, Jordan, Russia, and Norway, and supported by the UN. This agreement 
changed the status of the territory and the status of each of the parties to 
the agreement as well.

Israel’s continued presence in Area C of the West Bank, pending the outcome 
of permanent status negotiations, enjoys the official sanction of the 
PLO. It cannot, by any measure of political manipulation or legal 
acrobatics, be considered “occupied territory.”

Construction activity by each side in those parts of the territory under 
their respective control was expressly permitted in the agreement. Israel’s 
presence in the territory of the West Bank, pending the outcome of permanent status negotiations, was with the full approval of the Palestinian leadership and thus is not occupation.

Furthermore, analysis of the introduction to the 4th Geneva Convention as 
well as the official International Red Cross Commentary to it makes it very 
clear that Article 49 of the Convention was never intended to apply, and 
cannot apply, to settlement activity carried out by Israel.

The Historical and Legal Contexts of Israel’s Borders

Prof. Nicholas Rostow, senior director of the U.S. National Defense 
University’s Center for Strategic Research, addresses the claims against 
Israel’s rights to defensible and recognized borders. He notes that UN 
Resolution 242 left open for negotiation where Israel’s final boundaries 
would be in exchange for withdrawal from Egyptian, Jordanian, Syrian, and 
disputed territory, rather than requiring a restoration of the 1949 
Armistice Demarcation Lines as the international boundary of Israel. The 
resolution thus treated that boundary only as marking a minimum Israeli 
territory. Resolution 242 arguably entitled Israel to more territory than 
that. Adjustments were contemplated, as implied by the requirement for 
“secure and recognized boundaries.”

The Misleading Interpretation of Security Council Resolution 242 (1967)

Israel Prize recipient Prof. Ruth Lapidoth, former legal adviser to Israel’s 
Foreign Ministry and member of Israel’s negotiating team, analyses the way 
in which Israel’s rights are being consistently negated through misleading 
interpretations of UN Security Council Resolution 242. The resolution does 
not request Israel to withdraw from all the territories captured in the 1967
Six-Day War and does not recognize that the Palestinian refugees have a 
right to return to Israel.

The establishment of secure and recognized boundaries requires a process in 
which the two states involved actually negotiate and agree upon the 
demarcation of their common boundary. The UN Security Council did not regard 
Israel’s presence in the territories as illegal. As an act of self-defense, 
this military occupation was and continues to be legitimate, until a peace 
settlement can be reached and permanent borders agreed upon.

Defending Israel’s Legal Rights to Jerusalem

Israel’s rights regarding Jerusalem are perhaps one of the most sensitive 
issues on the agenda of the international community. Amb. Dore Gold, former 
ambassador to the United Nations and currently President of the Jerusalem 
Center for Public Affairs, sets out Israel’s rights regarding the city. The 
Jewish people restored their clear-cut majority in Jerusalem not in 1948 or 
in 1967 but in 1863, according to British consular records. This 
transformation occurred well

before the arrival of the British Empire in the First World War and the 
Balfour Declaration. It even preceded the actions of Theodor Herzl and the 
First Zionist Congress. Indeed, in 1914 on the eve of the First World War 
there were 45,000 Jews in Jerusalem out of a total population of
65,000.

In the last seventeen years, a number of key misconceptions about Jerusalem 
took hold in the highest diplomatic circles in the West as well as in the 
international media. When Israel signed the Oslo Agreements in 1993, for the 
first time agreeing to make Jerusalem an issue for future negotiations, that 
did not mean that Prime Minister Yitzhak Rabin planned to divide Jerusalem. 
On October 5, 1995, one month before he was assassinated, he detailed to the 
Knesset his vision for a permanent status arrangement with the Palestinians: 
“First and foremost, united Jerusalem, which will include both Ma’ale Adumim 
and Givat Ze’ev – as the capital of Israel, under Israeli sovereignty.”

In the years of the Arab-Israeli peace process, proposals were raised and 
considered for the re- division of Jerusalem, but no binding agreements were 
actually reached and brought to the Knesset for ratification. Israeli 
opinion remained firm about the rights of the Jewish people to retain their 
united capital under the sovereignty of Israel. The recognition of those 
rights in the future by the international community will depend on Israel 
demonstrating that it alone will protect the Holy City for all faiths.

Palestinian Unilateralism and Israel’s Rights in Arab-Israeli Diplomacy

Dan Diker, Secretary-General of the World Jewish Congress and Adjunct Fellow 
of the Hudson Institute in Washington, addresses the attempt to deny Israel’s 
rights to settle the conflict through bilateral negotiation. UN support for 
or endorsement of Palestinian unilateral actions would clearly negate the 
principles of negotiated settlement of disputes as set out both in the UN 
Charter and in the major Security Council resolutions regarding the Middle 
East peace process.

A unilateral declaration of statehood by the Palestinians robs Israel of all 
its rights and negates the peace process’s validity in its entirety. The 
Palestinians’ rush to unilateral statehood cannibalizes the basis of all 
past agreements including those that established the Palestinian Authority, 
and ignores and dismisses the concessions already made by Israel during the 
Oslo Accords and in later agreements.

Is the Gaza Strip Occupied by Israel?

In light of the attempts to represent Israel as if it is still occupying the 
Gaza Strip, even after having evacuated its forces and citizens from the 
area, Col. (res.) Pnina Sharvit-Baruch, former head of the IDF 
International Law Department who served as legal adviser to the 
Israeli negotiating teams during Israeli-Palestinian and Israeli-Syrian peace 
negotiations between 1993-2009, places the legal status of Gaza in the correct perspective.

The evacuation of Israeli citizens and IDF forces from Gaza was aimed to 
reduce friction with the Palestinian population and improve Palestinian 
living conditions. The hope was that the Palestinians would take advantage 
of the opportunity created by Israel’s disengagement to break the cycle of 
violence and reengage in a process of dialogue. Israel is clearly not an 
occupier of Gaza. Israel has fully withdrawn and carries out no governmental 
authority over the population in the area.

According to the Supreme Court of Israel: “Israel is under no general 
obligation to provide for the welfare of the residents of the Gaza Strip and 
to preserve the public order there, according to the body of laws pertaining 
to belligerent occupation in international law.” Israel does not possess 
full control over the external perimeter of Gaza and has no effective 
control over the area. Thus, there is no valid legal basis to regard Israel 
as the occupying power of the Gaza Strip. The Hamas government exercises 
effective powers of government there. Consequently, the laws of occupation 
do not apply.

The Violation of Israel’s Right to Sovereign Equality in the United Nations

Amb. Alan Baker notes that since becoming a member of the UN in 1949, Israel 
has been denied its Charter-based right to “sovereign equality,” and is the 
only UN member state that is excluded from the UN geographical 
groupings and that cannot be elected to the Security Council, the 
International Court of Justice, or any other major UN body. Sovereign 
equality in the UN – judicial equality, equality of voting, equality in 
participation in all UN activities and processes, and equality in membership 
in all forums – break down with respect to Israel, which is clearly 
discriminated against.

Since Israel has been excluded from its geographical regional group – the 
Asian Group – by vote of the Arab and Muslim members of that group, and is 
not accepted as a full member in the Western European and Others Group 
(WEOG), Israel is being denied its UN Charter-guaranteed equality.

In such a situation, Israel can never put up its candidacy for membership in 
the Economic and Social Council or other major UN organs. It is denied any 
chance of having its jurists chosen as candidates for the major juridical 
institutions, tribunals, and courts within the UN system, and it cannot 
participate in consultations between states, organized within the regional 
group system, to determine positions and voting on issues, resolutions, and 
other matters. In 1998, the UN Secretary-General called “to rectify an 
anomaly: Israel’s position as the only Member State that is not a Member of 
one of the regional groups....We must uphold the principle of equality among 
all UN member states.”

Sir Robert Jennings, former President of the International Court of Justice, 
wrote in 1999: “Exclusion of one member from an essential part of 
the workings of an international organization in which all other members 
are entitled to participate is a crude breach of the rule on 
non-discrimination.” He continued: “I venture to suggest that Israel’s 
exclusion should no longer be tolerated; and that it is now an issue of 
primary importance for the [UN] Organization itself to see that it be 
remedied.”

Countering Challenges to Israel’s Legitimacy

Persistent and oft-repeated charges against Israel’s legitimacy, such as the 
charge that Israel is an illegitimate, “colonial” state; that it secured its 
statehood unlawfully; that it is an apartheid state; and the claim for a 
“one-state solution” are analyzed by the eminent U.S. jurist Prof. Alan M. 
Dershowitz, Professor of Law at Harvard Law School. He notes that the Jewish 
refugees in Palestine had established their homeland without the assistance 
of any colonial or imperialist power. They relied on their own hard work in 
building an infrastructure and cultivating land they had legally purchased. 
These Jews had the right to determine their own future consistent with the 
Wilsonian principle of self-determination.

Israel’s statehood was secured lawfully by, among other instruments and 
acts, the Balfour Declaration of 1917, the 1922 League of Nations Mandate, 
the 1937 Peel Commission Report, the 1947 United Nations partition 
resolution, Israel’s Declaration of Independence, subsequent recognition of 
the State of Israel by numerous world powers, and Israel’s acceptance into 
the United Nations. What other country has its origins so steeped in 
international law?

A bi-national state would not only imperil Israel’s Jewish population, but 
would eradicate the one state in the Middle East that affords its Muslim 
citizens more expansive civil liberties and political prerogatives than any 
other. Israeli Arabs are better off – as measured by longevity, health care, 
legal rights, even religious liberty – than other Arabs in the Middle East.

* * *

This book will serve as a vital tool for all those who are genuinely 
interested in looking through the shallow and clichéd attempts by those in 
the international community who are determined, for whatever reason, to 
question Israel’s legitimacy and to deny its rights.

View the full study online

http://jcpa.org/text/israel-rights/index.html

This Jerusalem Issue Brief is available online at:
http://www.jcpa.org

Dore Gold, Publisher; Alan Baker, ICA Director; Mark Ami-El, Managing 
Editor; Jerusalem Center for Public Affairs (Registered Amuta), 13 Tel -Hai 
St., Jerusalem, Israel; Tel. 972 -2-561-9281,  Fax. 972-2-561-9112, Email: 
jcpa@netvision.net.il. In U.S.A.: Center for Jewish Community Stu dies, 7 
Church Lane, Suite 9, Baltimore, MD 21208; Tel. 410-653-7779, Fax 410-653-8889
Website: www.jcpa.org. © Copyright. The opinions expressed herein do not necessarily reflect those of the Board of Fellows of the Jerusalem Center for Public Affairs.

The Institute for Contemporary Affairs (ICA) is dedicated to providing a forum for Israeli policy discussion and debate.

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