Is Israel Sovereign?
On a non obvious answer...
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“This is another funny term from Political Sciences,” I told myself. After all, no self-defined sovereign state can decide that the sun would rise on the west tomorrow. In theological terms, the only possible sovereign is God. Yet, to make this argument clearer, I adopted the definitions used in Political Sciences texts and the media. A short definition of the term claims that sovereignty is the right to exercise the highest authority by the law within a territory. The key point is the exclusivity of jurisdiction. When a decision is made by a sovereign entity, it cannot be overruled, in most cases, by any other authority.
The current notions of state sovereignty were defined in the Treaty of Westphalia of 1648, and include territorial integrity, border inviolability, and supremacy of the state rather than the Church; the sovereign is the supreme lawmaking authority. Another significant change occurred by the end of the 18th Century, when the American Constitution of 1787 and the French Revolution of 1789 shifted the possession of sovereignty from the king to the people. However, how can such power be achieved?
There are two parameters that allow recognition of the existence of sovereignty: internal and external. Internal sovereignty refers to the relations between the sovereign and its own subjects; it deals with the question: by what right does the sovereign exercise authority over its subjects? In the past, the most common answer was by divine right. Nowadays, a social contract, like a Constitution, is the norm. External sovereignty concerns the relationship between sovereign entities. Foreign governments recognize the sovereignty of a state over a territory and its denizens, or not. This parameter is not exact; in the near past, the Republic of China and the People's Republic of China claimed sovereignty over the same territory. Different countries adopted different answers on the issue. This fluid definition of external sovereignty proves it is less valuable than internal sovereignty. Hence, the latter is de facto its defining property. A state can exist without external sovereignty, but it would fail without an internal one.
Sovereignty may be recognized even when the sovereign possesses no territory or when its territory is under occupation by another sovereign entity. It happened to the Holy See during the annexation of the Papal States by Italy in 1870 and the signing of the Lateran Treaties in 1929, when it was recognized as a sovereign state and was granted Vatican City. Since it lost Malta to Napoleon, the Sovereign Military Order of Malta rules only over two properties in Rome, but is widely recognized, and is even an observer at the UN. Occupied European countries during WWII were still recognized as sovereign states. Even under this strained condition, these entities kept their sovereignty because their subjects recognized it and fought for it. If they had lost the people’s support during the occupation period, they would have been effectively terminated. This happened with many political entities during human history; under this test, the sovereignty awarded by the people has been proved as being more stable than the one relying on a king. The latter disappears more easily, especially if the king and his heirs are killed in a war against other sovereign states. Thus, the key issue while testing sovereignty is its endorsement by the individuals comprising it.
In modern states, the acquisition of sovereignty by the state is defined by a social contract. This is often based on a single document, a constitution, which is ratified by the people, and later expanded into laws by a legislative body. This is the case with countries defined as democracies. Among these, the UK doesn’t have a constitution but has replaced it with a legal practice spanning several centuries.
Political power originates in the people. Benjamin Franklin expressed the concept when he wrote, “In free governments, the rulers are the servants and the people their superiors and sovereigns.” Thomas Jefferson said in 1799: “The whole body of the nation is the sovereign legislative, judiciary, and executive power for itself.”
On November 29, 1947, Resolution 181 of the UN General Assembly decided to divide Palestine between Jews and Palestinians and this became the basis of the external recognition of the State of Israel by other sovereign entities. On May 15, 1948, Israel’s Declaration of Independence was issued by a small group of people led by David Ben-Gurion. They didn’t have a formal and popular consent for that. Moreover, the declaration was never ratified by popular vote, though it was recognized by several states.
The new state never issued a social contract. Israel has no constitution and thus never ratified one. That means the State of Israel never got its people’s consent to be a sovereign entity, in other words, a state. The recent Basic Laws legislated by the Knesset—the Israeli Parliament—are a fig leaf. The state claims they are the basis for a future constitution. However, they do not properly cover key issues like human rights, were subject to arbitrary changes due to needs of coalition governments, and were never ratified by the people. In a secondary issue, the entity doesn’t have a defined territory; there are neither internal nor external resolutions awarding the State of Israel a well defined territory. A problem deriving from the latter is: Who are the sovereign’s subjects? Again, the State of Israel fails to fulfill the basic requisites to become a sovereign entity.
Under these circumstances, the external recognition of Israel is baseless; the recognition of other sovereigns, especially those defining themselves as democracies, of a non-ratified entity which has obviously not been invested by God, contradicts their own social contracts and thus would not stand a serious test. The internal recognition of Israel is not an issue since it has never been ratified by its subjects. State propaganda over the local and international media cannot change the absolute fact that the State of Israel is not a sovereign entity.
Israel’s Independence Declaration was printed in an elegant fashion; but it has no legal value. Even its declarative value is questionable: it expresses only the opinion of those who signed it. They didn’t have the people’s mandate to do that and totally ignored the human rights issue, mainly because of Ben Gurion’s assessment that they needed the support of Orthodox Jews support to form a stable coalition government. The latter recognized only the Talmud and related texts as a basis for the legal system; yet, the Talmud and the Mishna are not compatible with modern definitions of human rights. However, the main reason it is void of value, is that the state itself denies it.
In the eyes of the State of Israel authorities, one of the problems of the declaration is that it promises: “freedom, justice and peace,” “complete social and national equal rights to all its citizens without difference of religion, race or gender,” and “securing freedom of religion, conscience, language, education and culture, will keep the Holy Places of all religions and will be faithful to the United Nations.” These are uncomfortable promises. Until now, all the Israeli governments were based upon coalitions that included political parties that couldn’t agree to some of these promises. The main problems were imposed always by the Ultra Orthodox Jewish parties, like Agudat Israel and Shas.
Avoiding the problem, the Knesset claims the declaration is neither a law nor an ordinary legal document. The Israeli Supreme Court ruled that the declaration contains guiding principles, that it is not binding constitutional law. Nowadays, Knesset laws are enforced even if they are inconsistent with the principles in the Declaration of Independence.
Placed in an uncomfortable position on the international arena, the Knesset legislated two basic laws—the Human Dignity and Liberty and Freedom of Occupation ones—stating that “fundamental human rights in Israel will be honored.” However, these laws fail to give an exact definition.
Another landmine in the independence declaration is the claim that Israel will be faithful to the UN principles; this is another reason for the formal institutions of the State of Israel to be declared void of legal value. On 29 November 1947, the United Nations General Assembly adopted Resolution 181 on the partition of Palestine into a Palestinian state and a Jewish state. Special areas, like Jerusalem, would be under the direct administration of the UN.
An overlooked part of that decision was a formal minority rights protection system. The protection was to be enforced by the UN and the International Court of Justice. Thus, twice in the declaration, Israel promises to be nice to the minorities; once explicitly by promising equality and second implicitly by promising to be faithful to the UN, which promised protection to those minorities.
Subsequently, Israel claimed these minority rights were constitutionally embodied as the fundamental law of the state of Israel through the Declaration of the Establishment of the State of Israel, and various letters addressed to the Secretary General. These assurances were the basis for the General Assembly Resolution 273 (III) Admission of Israel to membership in the United Nations, from May 11, 1949. Reality was different. One irregularity—the lack of a formal constitution or any other social contract—gave birth to another.
The Law of Return gives automatic and immediate citizenship to every Jew arriving in Israel. A Jew is defined in that law as a person born Jewish (with a Jewish mother or maternal grandmother), with a Jewish ancestry (with a Jewish father or grandfather) or a convert to Orthodox Judaism (Reform and Conservative converts are recognized only if performed outside the State of Israel, Messianic Jews are rejected). The basis for this racist law is what is known as “jus sanguinis” in Latin, namely the “Blood Law.” In ancient times, it was used to attribute citizenship on the basis of family relations. However, the Law of Return denies citizenship to Jews who have converted out of their free will. Did their blood change during the conversion process?
Later, the law was amended to include non-Jewish relatives of Jews, but it never recognized the Right of Return of other ancestral denizens of the land that were expelled during the wars: the Palestinians. For them, “jus sanguinis” does not exist. Again, that is despite the earlier promises of equality. In a related discrimination, the Arab citizens of the State of Israel were under military government until 1966, while the Jewish citizens were not.
An important point to keep in mind is that the Israeli citizens, regardless of their ethnic background and religion, were never allowed to give their opinion. This discriminating principle was never put to the democratic test. Due to its importance to the nature of the Israeli society, it should have been.
The Law of Return gives citizenship to Jews arriving in Israel. However, an intrinsic flaw accompanies it: “Who is a Jew?” “If your mother was, or...” is the argument presented by that law to answer the question. However, they have created only a recursive trap; the same question would apply to the testifier of one’s “Jewishness,” ad infinitum. Who would testify for King David’s mother?
The Chief Rabbinate of Israel, which is part of the Israeli Ministry of Religious Affairs and is most of the time controlled by Ultra Orthodox Jewish parties, has been the authority deciding on “Who is a Jew?” until now due to coalitional considerations, but this is a questionable practice. Non-Orthodox religious Jews do not accept it, because the Ultra-Orthodox refuse to recognize their conversions. The Israeli Supreme Court ruled in 2005 that conversions performed by the latter outside Israel must be recognized, but those inside Israel not. What? Is one’s religion dependant on geographical issues? Absurd as it seems, eleven out of twelve of the most respected judges in Israel claimed that one’s conscience on the issue is irrelevant; your religion may be defined by your trajectory upon earth. They claimed that and are still considered wise; moreover, a whole country abides by this rule.
The Citizenship and Entry into Israel Law from 2003 places age restrictions for the automatic granting of Israeli citizenship and residency permits to spouses of Israeli citizens, such that spouses who are inhabitants of the West Bank and Gaza Strip are ineligible. The United Nations Committee on the Elimination of Racial Discrimination unanimously approved a resolution stating that this law violated an international human rights treaty against racism. The decision was adopted because this law disproportionately affects Israeli Arabs, since they are far more likely to have spouses from the West Bank and Gaza Strip than other Israeli citizens. Yet, Israel continues to claim it is a democratic country securing the rights of minorities. Again, Israel just ignores its own commitments towards its citizens and the international community.
When considering the Law of Return, then the parallel Palestinians’ right must also be assessed. This Right of Return was defined by the UN General Assembly Resolution 194. Article 11 of that resolution states:
“Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.”
Judging by the results, it seems that Israel’s Independence Declaration promise to be faithful to the UN does not include uncomfortable resolutions.
This right has since then been ratified several times. The 1974 United Nations General Assembly Resolution 3236, recognizes the Palestinian people’s right to self determination, and makes the contacts between the United Nations and the Palestine Liberation Organization official. It also states that it: “Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return.”
Again, Israel just ignores its own commitments towards its citizens and the international community. The Universal Declaration of Human Rights claims that: “Everyone has the right to leave any country, including his own, and to return to his country.”
Israel ignores that.
“No one shall be arbitrarily deprived of the right to enter his own country,” says the International Covenant on Civil and Political Rights.
Israel ignores that. Simply, the Palestinians are not Jews, and thus are not recognized by the Law of Return. The Talmud teaches in Baba Bathra Folio 54b that non-Jews have no property rights. Their possessions are “like unclaimed land in the desert.” The passage appears on page 222 of the Soncino edition: “Rab Judah said in the name of Samuel: The property of a heathen is on the same footing as desert land; whoever first occupies it acquires ownership.”
Doesn’t the occupation of Palestine appear now in a new light?
On the other hand, Israel accepted massive numbers of non-Jews during various Aliyah waves. The most remarkable one was during the 1990’s when over a million people entered from the former USSR to Israel under the protection of the Law of Return. Orthodox sources claimed that well over a hundred thousand of them were Christians seeking to leave their former Communist state. I have enjoyed underground Christmas meals with some of them; underground because openly celebrating the Prince of Peace is forbidden in Israel.
In another impossible angle of the Israeli reality, settlers in the West Bank live next to Palestinians. I have visited both. The Palestinians are void of citizenship, cannot move freely and cannot even marry their beloved ones if these are Israeli citizens (one case reached the Supreme Court in 2006 and the sublime and wise judges rejected the marriage). The settlers are outside the territory of the State of Israel, yet they enjoy all the regular rights of an Israeli citizen. In my exiled location, I cannot vote for the Israeli Parliament because it is not within Israel; yet, the settlers can vote and marry whoever they want. This is discrimination and racism hiding under claims of democracy and equality.
Israel plays a double game. Towards its citizens, it claims the Declaration of Independence is not a binding document, but to the UN it states otherwise. The State of Israel is faithful neither to the UN nor to its citizens. The promise in the Declaration to create a Constitution for the new state is ignored.
Israel failed to fulfill the basic requirements for achieving sovereignty. It purposely failed the external requirements towards the UN, which provided the initial external recognition, and failed in its proposed social contract towards its citizens. I used the word “proposed,” because it was never properly ratified and because Israel does not have a constitution even now. If these irregularities were all the existing problems, many would be tempted to say: “Let it be, there are more serious things in life than an illegally founded country.” However, as it has been shown, the list of violations goes on and on.
Israel openly breaks the condition upon which it was recognized as sovereign by the UN, and has not been awarded sovereignty by its own citizens, through a social contract. Hence, Israel cannot be considered a sovereign entity. Such a situation opens the possibility for an international force to enforce human rights in the area. Technically, the State of Israel cannot object to that because it does not exist as a legally sovereign entity.
The international community and the UN should also adopt a clear policy for such rogue states; until now we see enforcement in some cases (Iraq) or apathy in others (Pol Pot’s Cambodia). People must be free to choose their own future. If the UN was faithful to its declared goals, it would apply equal policies everywhere on the globe.
One of the characteristics of sovereignty is territory, though it is not an essential one. However, the vast majority of what we call “sovereign entities” does have a territory, even if only a small one like the Holy See and the Order of Malta do. If we are considering territory, then implicitly we are also considering borders. What is the situation of Israel’s borders?
These were established by the British Mandate of 1922, and were based on the Sykes-Picot agreement of 1916; which divided the Ottoman Empire territories in the Middle East between the UK and France. However, things have changed since then. The borders with Egypt and Jordan have been formalized in the peace agreements with these countries in 1979 and 1994 respectively. They gave up the West Bank and the Gaza Strip, creating an undefined border between Israel and Palestine (the last being represented by the Palestinian Authority).
The border with Lebanon was based on the 1949 Armistice Agreement, though Israel had several times ignited tensions along an area known as the Shabaa Farms on the former border between Lebanon and Syria. In the year 2000, the UN defined what is known as the Blue Line as the IDF retreat border; this is different from the Green Line, which marks the 1949 Armistice Agreement line. In this respect, there is some ambiguity also along this border. The borders with Syria are not settled. Israel still occupies the Golan Heights. It even annexed them unilaterally in 1981. There is no formal Israeli decision on the country’s borders. Israel has no Constitution, so the borders cannot be defined there. There is no other formal government or general referendum decision concerning the country’s borders. That is exceptional and must have some repercussions on other areas of life.
Unluckily, it didn’t demand a Herculean effort from my side to find the result of that.
The question “Who is a Jew?” is a key issue in modern Israel. However, no less valuable is asking: “Who is a citizen?” This is a question with no clear answer in Israel.
Only citizens within the State of Israel are allowed to vote for the parliament. But the state has no defined borders, so what is a legal vote? A settler living in the West Bank is even by the State of Israel’s definition outside the state borders. Yet, he is allowed to vote and gets social benefits; at the same time, another Israeli citizen living in Egypt or Greece or the US does not have these benefits. This is an outstanding mystery.
A Palestinian with Israeli citizenship living in Jaffa cannot marry a Palestinian from Jenin in the West Bank. Marriage is a basic human right, though not in the eyes of the Israeli Supreme Court. This is a geographical mystery.
A Jew converted to Christianity and married to a Christian woman in a church wouldn’t get his marriage recognized by the state. His bastard sons would not enjoy the social benefits normal children in the country enjoy, unless he marries outside Israel and returns with the happy bride. This is another mystery, though I admit judges are smarter than lesser humans. No normal human can follow the logic of such a decision.
The truth is that I have no wish to solve these mysteries. Israel must adopt international standards of law and a constitution as it promised the UN in exchange for the recognition of its sovereignty. Otherwise, having broken the UN resolution and having failed to sign a social contract with its citizens, it has no right to exist as a sovereign country.
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