Chaim Gans

Tel Aviv University

Paper for the UC/Utrecht Symposium on Jewish Politics and Political Behavior

12 October 2008


Objections to contemporary Zionism could be classified into two types. One type focuses on the flaws of Zionism as a historical movement and the flaws of its main historical product, namely, the State of Israel. The other objections focus on the defining principles of Zionism as an ideology rather than as a historical movement. In my book A Just Zionism: On the Morality of the Jewish State (New York: Oxford University Press, 2008), I address these two types of objections. The last three chapters focus on three components of the situation created by Zionism as a historical movement: the Palestinian refugee problem; the occupation of the West Bank and the Gaza Strip after the 1967 Six-Day War (as well as subsequent Jewish settlement activities there); and the policies of the State of Israel regarding the Arab minority living within Israel’s pre-1967 borders. The first two chapters focus on objections to the defining principles of the Zionist ideology. The first of these defining principles is the ethno-cultural principle, according to which people have a fundamental interest in adhering to their culture, in sustaining it for generations, and in receiving political recognition and support for this. This principle is common to all ethno-cultural nationalisms. The second type of objection focuses on a principle which is unique to Zionism and which distinguishes it from other ethno-cultural nationalisms, namely, that the Jews should realize their self-determination not in their current places of residence, but rather in the Land of Israel.

In my book I reject the objections against Zionism focusing on its two defining principles though not the objections against the concrete historical realization of these two defining principles by the Zionist movement and the State of Israel. In fact, what I do in the book is, first, to articulate defensible versions of the two defining principles of Zionist ideology, and then to discuss the gap between these interpretations of the principles and their actual realization by the Zionist movement and the State of Israel.

The topic of my talk here is the second defining principle of Zionism, namely, that the Jewish right to self-determination must be realized and maintained in the Land of Israel. (For a complete version including notes, see the second chapter of my book). This principle was based on what has often been called the historical right of the Jews to the Land of Israel. I will argue that historical rights constituted a significant moral consideration in favor of establishing Jewish self-determination in Palestine. However, I will also argue that if it were not for the fact that Jews had been victims of persecution in the years 1880-1945, it would have been unacceptable for them to act upon this consideration.

Moreover, I will also argue that there were significant justifications for the Arabs’ opposition to Jews’ return to the Land of Israel. The main reasons justifying their opposition derive from the fact that the Zionist movement frequently deviated from those aspirations that were justifiable. I shall not discuss these deviations here. Instead, I will argue that, to a certain extent, the Arab opposition to Zionism was justifiable even if the Zionist movement had not exceeded its justified aspirations.

1. Interpretations of Historical Rights

It must be stressed that it is not merely the recourse to the historical rights argument which distinguishes Zionism from other ethno-cultural nationalisms. Bismarck also invoked this argument in order to justify the annexation of Alsace-Lorraine to Germany in 1870. Thomas Masaryk used it in order to justify the inclusion of the Sudetenland in Czechoslovakia after World War I, and Slobodan Milosevic recently employed historical rights to justify the expulsion of the Albanians from Kosovo. However, there are two significant differences between the possible interpretations of the early Zionist use of this argument and how the notion of historical rights could be interpreted in the cases just mentioned and in many additional cases. First, Zionism could be regarded as having invoked the historical rights argument primarily in order to stress the primacy of the Land of Israel in the history of the Jews (henceforth, the formative territory claim). On the other hand, those who invoked it in most other cases referred mainly to the primacy of the nations they represented in the history of the territories they were claiming (henceforth, the first occupancy claim).2 Second, while Zionism could be interpreted as resorting to the historical rights argument as a consideration for determining the geographical site for the realization of the right to Jewish self-determination, the majority of the other cases involves nations that were already living in their historical homelands and were already enjoying (or were about to enjoy) the benefits of the right to national self-determination therein. In these cases, the historical rights argument was invoked in order to justify demands for territorial expansion.

It is important to distinguish between the issue of determining the geographical site of the right to national self-determination, on the one hand, and, on the other hand, the issue of justifying the right itself, its institutional form, and its territorial scope. Unlike historical rights, which are acquired by virtue of specific events in which the specific claimant to such rights was involved, the right to self-determination could be said to be ahistorical. Groups are entitled to it by virtue of belonging to a general category (namely, a nation) and not by virtue of any particular events in their history.3 If historical rights alone constitute the justification for the right to territorial sovereignty, then they also provide the answers to questions concerning the appropriate geographical site, territorial scope, and institutional form of the right to national self-determination. If historical rights give rise to territorial sovereignty, they necessarily presuppose a statist realization of self-determination that applies to all of the area that has been claimed. On the other hand, justifying the ahistorical right to national self-determination by means, for example, of the argument that it allows individuals to live their lives within the framework of their culture, does not predetermine what the appropriate institutional framework of such self-determination should be (for example, personal autonomy in various spheres of life, territorial autonomy, or sovereignty in the framework of a nation-state), what its territorial scope ought to be, or where the appropriate geographical site for the realization of this self-determination should be. Historical rights could constitute a solution to this third problem concerning the site of the territory designated for self-determination, without necessarily determining its institutional character and the scope of the territories in which self-determination is realized.4

Like the other kinds of Jewish ethnocultural nationalism at the end of the nineteenth century, the Zionist movement conceived of the Jewish right to self-determination as an ahistorical and universal right that Jews have in the same way that other peoples do. It was the fact that the Jews had not realized the right to self-determination, in conjunction with the persecution that they suffered and with the failure of their attempts to integrate with the nations among which they lived, that gave rise to Zionism and to the other kinds of Jewish nationalisms at the end of the nineteenth century. These Jewish nationalisms were surely not driven by mere territorial ambitions.5 The dispute between Zionism and the other Jewish ethnocultural nationalisms was primarily with regard to the geographical location where Jewish self-determination should be realized. There were at least three views on this issue: One was that of the Bund’s and Dubnow’s followers, namely, that the Jews should realize their self-determination nonterritorially where they were currently living in East and Central Europe. The territorialists, who seceded from the Zionist movement, had another view: that Jewish self-determination should be realized territorially in other territories, such as Uganda. The third view was that of the “Zion’s Zionists”. By invoking the historical rights argument, they claimed that Jewish self-determination should be realized in Palestine.

Perhaps not all Zionist leaders and thinkers viewed this argument as simply a way to settle on the geographical site of Jewish self-determination. Many Zionist leaders and thinkers failed to distinguish between historical rights as merely a consideration for determining the site of self-determination and as the basis for territorial sovereignty. However, I am not concerned with the historical question of what actual demands were made by the Zionist movement, nor with what its leaders and thinkers actually believed when they invoked the historical rights argument. My only concern here is with the moral question of whether a justified version of Zionist ideology is conceivable. I will claim later that invoking historical rights as a consideration for determining the site for the realization of national self-determination, as opposed to relying on such rights in order to demand territorial sovereignty, may be justified or at least excused under certain circumstances and that, in the historical period since the inception of Zionism, there have indeed been times when these circumstances could be said to have existed.

A second important difference between the possible interpretation of the Zionist movement’s employment of the historical rights argument and the cases in which other nations have used this argument pertains to the distinction between the primacy of the specific territory in the history of the particular nation and the primacy of the nation in the history of the territory in question. I have already mentioned Otto von Bismarck, who demanded the annexation of Alsace-Lorraine to the German Reich in the wake of the Prussian-French War. In order to justify this claim, he resorted to the fact that these territories had been under German rule in the sixteenth century. Thomas Masaryk’s demand to include the Sudetenland in Czechoslovakia after World War I, despite the fact that the Sudetenland was mainly populated by Germans, was backed by a similar claim, namely, that the Sudetenland had been part of the Bohemian kingdom at the end of the Middle Ages. And there are many other examples.

However, it would seem that when the Zionist movement first invoked the historical rights argument, it focused on the primacy of the Land of Israel in Jewish history and its important role in Jewish identity rather than on the primacy of the Jews in the history of the Land of Israel. Clear evidence of the predominance of this conception of the historical right in Zionist annals can be found in Israel’s Declaration of Independence. It states, “The Land of Israel was the birthplace of the Jewish people,” and it was there that “their spiritual, religious and political identity was shaped,” where “they first attained to statehood, created cultural values of national and universal significance.” “Impelled by this historic and traditional attachment,” the declaration goes on to say, “Jews strove in every successive generation to re-establish themselves in their ancient homeland.”15

These differences between the possible interpretations of how early Zionism used the historical rights argument and how other nations have invoked this argument, as well as how it is employed by contemporary Zionism, are of utmost importance. When historical rights serve as the basis for a claim to sovereignty and territorial expansion, then they lack any validity. They are invalid irrespective of whether they refer to the primacy of a nation in the history of the land, or to the primacy of the land in the history of a nation. Rousseau stated this point clearly. "How can a man or a people seize an immense territory and keep it from the rest of the world except by a punishable usurpation, since all other are being robbed, by such an act, of the place of habitation and the means of subsistence which nature gave them in common?"17 Rousseau’s observations were made with regard to first occupants who were physically present in territories over which they claimed sovereignty. However, they are even more applicable to nations which attempt to renew their physical presence in territories where they lived many generations ago. If such nations invoke historical rights to claim territorial sovereignty, then accepting this claim would not only make it impossible for these territories to later be used to satisfy the basic and/or important needs of other people who might need these territories. It would also increase the risk of uprooting people already living there, and it would necessarily lead to their subordination to foreign rule.

However, if the historical rights argument is regarded not as a basis for the right to territorial sovereignty but rather for the determination of the geographical location in which the nation’s right to self-determination is realized, and if self-determination itself is interpreted as less than independent statehood, then the fears expressed above lose a considerable measure of their weight. This is particularly true if considerations of justice serve to determine whether nations are entitled to sovereignty or other territorial rights and what the scope of territories to which these rights apply should be. Based on principles of justice, territories could be allocated to nations according to the size of their respective populations, the nature of their cultures, the specific needs of the cultures, the degree of a nation’s commitment to its members, and/or how this nation treats those who are not members. Territory could also be allocated according to a combination of the above criteria as well as additional considerations.18 Within such a framework, historical rights could serve as a consideration for selecting the specific geographical location where self-determination is to be realized. The area designated for a nation’s self-determination may be larger or smaller than the historical territory of that nation. This depends on substantive considerations of distributive justice pertaining to the size of the territories to which each nation is entitled. If the territories of the world are divided between the nations in the world on the basis of these considerations, and if the role of historical rights is interpreted not as a basis for the right to sovereignty but rather as grounds for selecting the location where self-determination is to be realized, then the duties correlative to these rights do not endanger the livelihood and autonomy of many people. People would only have to pay the price of being excluded from specific areas, that is, the areas granted to other nations for the realization of their own right to self-determination. These areas would not be any larger than those from which they would in any case be excluded, provided the territorial rights accompanying self-determination were justly distributed among national groups.

Historical rights should be resorted to for the purpose of selecting the locations of nations’ self-determination because there are good reasons supporting this (and not only because there are no reasons for not doing so). In the case of nations still residing in the territories to which they could claim historical rights, this applies to both conceptions of historical rights, namely, first occupancy and formative territory. If the nation that was the first occupant in a given territory is still in the territory, then first occupancy should be the basis for selecting the site for realizing that nation’s right to self-determination. Other grounds for determining this site would require the relocation of entire peoples, and there do not appear to be any good reasons for inflicting such high costs and inconvenience on them. Under the formative territory conception, historical rights should serve as grounds for selecting the location of nations’ right to self-determination not only for these pragmatic reasons, but also because it may be very important for people who ascribe great significance to their national affiliation not to be torn away from their national group’s formative territory. In view of the importance of formative territories to people’s national identities, it can certainly be argued that the link between these territories and the right to national self-determination is an essential one.

The pragmatic considerations which favor choosing the specific territory in which a given nation was first occupant as the place for realizing its self-determination cease to be valid once the physical connection between the nation and the territory in question has been severed. However, the considerations for selecting the site for the realization of self-determination which stem from the formative ties with the homeland do not necessarily lose their force if the physical link between the nation and the territory has been severed. The interest that the committed members of a nation have in maintaining their link with their formative territory is valid regardless of whether or not they currently occupy the territory. One could claim that the physical separation of the group members from their formative territory is similar to tearing people away from their kin. Such connections usually continue to be a part of people’s identities. This constitutes a reason for placing the site of self-determination in the formative territory even when the original physical connection no longer exists.

2. The Persecution of the Jews

However, this reason for selecting the site of self-determination is not always and necessarily a conclusive reason for actually doing so. There are two kinds of considerations that might militate against it. The first kind of consideration pertains to the demographic situation in the territory, the needs of those currently living there, and the needs of those wishing to return to the territory. A Native-American tribe whose descendants seek to return to Manhattan in order to resume living there within the framework of their culture cannot be allowed to fulfill such a wish. In other words, when a territory is densely populated, this seems to generate other considerations which must override the force of the formative ties as grounds for selecting the site for the realization of the nation’s right to self-determination. However, with regard to areas that are not as crowded as New York City and/or cultures that do not require hunting grounds in order to realize their cultural identities, it seems that ethnocultural groups should be entitled to return to these regions provided they have formative ties with these territories.20 Indeed, in the 1990s, Australian and Canadian courts recognized the claims of ethnocultural groups to areas with which they have a formative connection in order to realize certain forms of self-determination.21

One major difference between the Jews’ return to the Land of Israel and the restitution of the title that indigenous groups have to their traditional lands in Australia and Canada is that the latter occurred within the political framework of states that have established legislative and judicial institutions and law enforcement agencies. These institutions draft the principles that define the relationships among all of their subjects, and they settle any disputes which might arise. In contrast, the Jews’ return to Palestine occurred in an international context in which such legislative, judicial, and law enforcement institutions were in their embryonic stages.22 The absence of such institutions in the context of the Jews’ return to Palestine forms a second consideration against this return, which must be weighed against the formative tie as a reason for selecting the site of self-determination.

To illustrate this point, consider those who believe that Saudi Arabia should not be the only country to profit from the oil on its territory and that it should share oil revenues with countries suffering from abject poverty, such as Somalia. A person subscribing to this position need not necessarily think that this principled stand entails the conclusion that Somalia has the right to invade Saudi Arabia and appropriate its portion of the oil wealth in question. It could be contended that Saudi Arabia should not be the only one to have to share its oil with other countries. Kuwait should also do so, and not only Somalia but also Chad, for instance, should benefit from this.

Furthermore, these allocation issues should be regulated by a public system consisting of principles that are acceptable to most or all of its subjects and enforced by judicial and executive authorities capable of applying these principles in a coordinated and consistent manner. Consequently, any isolated and unilateral action against one of the parties subject to these principles would be at least partially unjust and might lead to bloodshed, even if the justice of the principle itself is undisputed.

Under normal circumstances, this last argument should convince members of nations to refrain from returning to their historical homelands. However, in the absence of real alternatives for realizing their self-determination, or at least a lack of a feasible way to lead reasonable lives as individuals, it would not be unreasonable for members of a national group to nevertheless resort to the historical rights argument. It could be argued that necessity could justify resorting to the historical rights argument in such circumstances or, at least, constitutes a good excuse from liability for those who resort to and act on it. In hindsight, the situation in Europe at the end of the nineteenth century was one in which the Jews had only the very dimmest chances to realize their self-determination there, as envisioned by the Bund, or even to continue living as individuals in a manner that would ensure their survival. On the other hand, the realization of Jewish self-determination in eastern Africa, as advocated by the territorialists at the beginning of the twentieth century, suffered from the same deficiencies that affected the Zionist call to realize Jewish self-determination in the Land of Israel, but without its attendant benefits. Like the realization of Jewish self-determination in the Land of Israel, Jewish self-determination in eastern Africa was to be realized in territory that had long been the home of another ethnocultural group. Settling this territory could well lead to brutal conflict with them. On the other hand, the realization of Jewish self-determination in East Africa, as opposed to its realization in the Land of Israel, could not be based on formative historical ties. Many Jews had been victims of persecution and could not continue living where they were currently living both as individuals and as a group. Under these conditions, it seems that these Jews could not reasonably be expected to act on the principle that many actions required by ideal justice had to be suspended because of the partial injustice and even bloodshed to which such actions might lead.

The necessity which, according to the current account supports resorting to the historical rights argument is very similar to the “necessity” defense in criminal law. This defense is often invoked to justify acts that would be legally and morally prohibited in normal circumstances, or at least excuses those committing these acts from liability. Although I believe that the persecution of the Jews constituted a necessity which justified the return to Palestine, it is not an incontrovertible case of a justifying necessity. There might well be those who would regard the persecution of the Jews as merely excusing them from liability.26 An example in which necessity incontrovertibly justifies an act that otherwise would be considered criminal and immoral is that of the mortally wounded person who has no way of saving his life other than by breaking into a pharmacy to steal the required medicine. On the other hand, a necessity which cannot justify the act itself, but nevertheless could be invoked as an excuse from liability is illustrated by the ancient example of two men shipwrecked at sea; one of the two men manages to grab hold of a plank from which he is then pushed off by the other man. The evil caused by the criminal act in the pharmacy example is an infinitely lesser evil than the evil which would have been caused if the crime had not been committed. Therefore, the necessity involved is incontrovertibly a justifying necessity. In the plank example, on the other hand, the two evils (the death of either of the two men) are of the same magnitude. It could at most serve as an excuse from liability.27 The pharmacy analogy is intended to convey the idea that Palestine could offer the Jews medication as it were for healing the malady of having been persecuted and of being helpless in confronting this persecution. However, this medication was not of the kind that was on the pharmacy shelf ready to be collected by a person who then leaves the pharmacy. Rather, the medication consisted in taking permanent possession of part of the pharmacy itself. It is therefore not as incontrovertible a case of justifying necessity as that of the mortally wounded person breaking into the pharmacy. On the other hand, it does not seem to be as clear-cut a case of an excuse from liability as that of the plank. In the latter case, in order to save himself, the drowning man must drown the other man.28

But let me return to the historical rights argument. It provides a response to the query: “Why our pharmacy?” that some Arabs might come up with. The response is either “because it is the only one carrying the appropriate medicine” or “because the medicine carried here is better than the medicines found in other pharmacies" (that is, places such as Uganda, East Europe, Argentina). The medicine as it were is a unique one, or it is at least better than any other available solution to the problem. That is, an attempt to realize self-determination in the formative territory has a chance of succeeding or, at least, has better chances of success than any attempts to realize self-determination in other territories might have.

3. Responding to Arab Opposition to Zionism

This analysis of the Zionist principle concerning the Jews’ return to Palestine implies an important explanation for the Arabs’ opposition to the Jews’ return. It is quite certain that this opposition was due to the instinctive unwillingness of most individuals and groups of individuals to share something they possess with others (especially if these other people are strangers), even when justice mandates redistribution. However, even if Arab opposition were motivated by this instinct, it was also motivated by justified objections to Zionism. Some of these objections are valid because, as I am arguing in the later parts of my book, in various periods, the Zionist movement actually seized far more than was justified in terms of both political power and territory. However, the Arabs’ objection to the Zionist return was partly justified even with respect to those components of Zionist ideology and activities which are unequivocally justified. As implied by the theoretical distinction outlined earlier, the Arabs could claim as follows:

According to an ideal theory of global justice, it could be the case that the Jews were indeed justified in selecting the site of their self-determination in Palestine. However, there was no institution which could effectively determine the size of the territory and the political scope of Jewish self-determination, and there certainly were no law enforcement institutions to make the world’s nations share the cost of all this. The fact that the Jews selected the site for the realization of their self-determination in territory currently inhabited by us, even if they might have been entitled to do so, ultimately exacted a price only from us, whereas all of the nations of the world should have shared this cost. Therefore, even if it might have been justified for the Jews to return to Palestine in the best of possible worlds, the actual state of the world meant that it was also justified for us to object to their return.

The Arabs could also claim the following: “The Jews returned to Palestine due to a necessity that arose as a result of their persecution by the European nations and not by us, but this occurred without a system that would ensure that the Jews and/or these nations compensate us for the injustice inflicted on us by that return.”

Consider again the example of the pharmacy cited above. Many systems of justice grant the defense of necessity to people who find themselves in life-threatening situations and who are able to rescue themselves only by committing acts which would otherwise be considered criminal offenses, such as breaking into a store and stealing life-saving drugs. However, domestic systems of law and justice are also in a position to enact and enforce additional principles which lessen or even eliminate the cost that store owners are forced to incur as a result of the recognition of the necessity defense in such cases. They could determine that, if the burglar’s injury were caused by other parties, then the burglar and those other parties should indemnify the pharmacy owner; or, they could determine that, if the burglar’s injury were a result of natural forces or an accident for which no one in particular was responsible, then the burglar and the public at large should indemnify the pharmacy owner. As I noted earlier, in the global context in which the Jews exercised their right to self-determination, there were no acknowledged principles sufficiently detailed to settle such matters; there was no institution authorized to formulate them at a degree of specificity that would facilitate their enforcement; and there was no authority or organization which could enforce them. In other words, even if one concedes that the Jews had a justification for the realization of their self-determination in Palestine at a time when they were being persecuted by the European nations, one must admit that the Arabs living in Palestine also had significant justifications for refusing to let them do so.32

One must concede that this case is different from that of a pharmacy owner who would have no justification for refusing to supply a mortally wounded person with a specific kind of medicine that could only be found in his store. Not only did the Jews break into the Arabs’ pharmacy as it were in order to settle there rather than merely take a specific medication and then leave, the Arabs had no assurance regarding the upper limit of their potential losses and any compensation for such losses.

In view of the above, Jews have a special moral obligation to understand Arab opposition to their return to the Land of Israel and to try to contain it by way of conciliation. The analysis of the last three chapters of my book, which revolves around the actual history of the Zionist movement and the State of Israel, is an attempt to be more specific regarding the details of this desirable conciliation. Israel's actual policies do not demonstrate that it has recognized the need to create conditions for such conciliation. To the contrary: It is currently pursuing policies which make things even worse.

Let us go back to the example of the pharmacyh. Instead of taking possession of part of the pharmacy, as it were, as it inevitably had to do, Israel has taken possession of the whole pharmacy. Moreover, instead of being compensated, the pharmacist has been humiliated and oppressed. In order for the irreversible consequences of the Jews’ return to be less damaging to the Palestinians, Israel should not have established settlements in the Occupied Territories, since they make it increasingly difficult to terminate Israel’s occupation of Palestinian territories. Also, Israel should have ended its discriminatory practices towards its Arab citizens within the State of Israel long ago. Together with the countries of the world, and especially the European nations, Israel should have searched for ways to compensate the Palestinians for the price they have paid for the realization of Zionist ideology.

The fact that Israel has not stopped its policies of territorial expansion and discriminatory practices undermines its capacity to now invoke the necessity defense in good faith. As I hope I have shown, and as many early Zionist leaders, such as Pinsker, Herzl, Weizmann, Jabotinsky, and Ben-Gurion also believed, this defense is crucial for the justification of Zionism. In this sense, the State of Israel’s current actions and policies do not only undermine its moral standing in the present and in the future. They also affect the legitimacy of relying on the justice of the Zionist past.