Maybe a right to exist but not through genocide of any other country or nation that exists peacefully.

A response to the right of nations to exist

Image: Palestinians under the rubble after Israeli airstrike of homes in the Gaza Strip.¹

A thoughtful contributor wrote privately to me yesterday in response to my article about nations’ right to exist:

Does a state have a right to exist?

They commented that “maybe there is a right to exist but not through genocide of any other country or nation that exists peacefully.”

I think the correspondent was right to distinguish between a country and a nation, because a nation can exist without being a country (the First Nations of Canada, for instance, or the four rugby nations mentioned in my article).

Here is a response I wrote to them, and I thought it worth putting up here, to try to focus minds on what is what, not because people are wrong in what they say and think, but I believe there’s a lot of inherent contradiction in some of the things we hear, and there are perhaps some lessons to be learned from history. Feedback welcomed.

---

There are three questions here:

1. The first is that whether or not Palestine exists peacefully is a fraught question. I think so, you think so, but October 7 was not peaceful. It is arguable it was to be expected, but definitions are important—I don’t think it was peaceful. If we want to discuss the proportionality of the Israeli response to October 7, that’s a different question to “Israel’s right to exist”.

2. Next, then, we have a nation’s “right to exist”. I say it has none, because nations don’t have rights, they have armies instead.

Businesses contract rights and obligations in commercial agreements and, if one of them doesn’t keep to the agreement, they can be sued before a tribunal or court. Nations also have agreements, called treaties and conventions (or memoranda of understanding …). So, who do they go to if the other party breaks the contract? Well, they can go to the International Court of Justice, if it’s a territorial dispute. If it’s commercial, they enter into diplomacy. Or, they start shooting. But there’s no court they can go to like a private individual can to claim damages for, say, loss of income.

A right is an entitlement under the law (i.e. it is enforceable at law), which is there for the taking, subject to certain qualifications (age, sex, status, etc.): you do not need to fight or negotiate for it. If you drive down the road and have right of way, you don’t need to negotiate with other drivers as to who will go first at the crossroads. But in supermarket car parks, there isn’t a right of way, so people drive very cautiously and, when two cars come together at a corner, they will indicate “After you”, or “I’ll just nip across here and get out of your way”, so sometimes there is negotiation of the right of way. Some people just barge through and make everyone else wait, and that is also a form of negotiation.

But there is no right in law conferring “existence” on a nation state. If there was, we would still be living under the Roman Empire, or the Ottomans. Simply put: nations come and nations go.

3. Then, there is what a nation does to its own and other people. That’s different from its “existence”. What exactly nations are for is open to question. Some say they “govern” and others say they “rob the population”. It’s a matter of political philosophy whether raising taxes is robbery or governance. But the nation also has the right to take life: criminal executions, and defence of the realm. And, if they are in its purported national interests, they can conduct wars.

China conducts wars against its own people (the Uygur), Turkey against the Kurds, England did so against the Scots after the ’45 Rebellion, America against the First Nations, all of South and Central America against the same, Rwandan Hutus against the Tutsis, etc. The question then is, “What rights do foreign powers have if a nation decides to turn against its own minorities?” And the answer to that is “In law, none.” Foreign powers must then decide whether they want to wage war against another country, not because that country threatens them, but because it threatens its own people (there is a neat distinction to be drawn as to whether the Palestinians are Israel’s “own people”: they want the land, but not the people).

In 1864, Russia literally wiped out the Circassians, about two million people, whose capital was Sochi (where they had the Winter Olympics: the Olympic stadium there is built on thousands of Circassian dead). At one point in the massacre, Circassian leaders wrote a letter of supplication to Queen Victoria, begging her to put a stop to the outrages, and delivered it to the British Ambassador in Istanbul, who had it translated and forwarded to the queen. Nothing was done. The most powerful empire in the world would not intervene when the Russians decided to commit a genocide against their neighbouring people. And western powers will never intercede on behalf of ... Muslims. They would not even intercede on behalf of the Christian Armenians slaughtered by the Ottomans in 1915, also two million deaths. Hand-wringing is all the Palestinians will ever get from most western people, bar the few brave ones who risk torture to bring food there; and they won’t even get hand-wringing from western nations, except Ireland and Spain and a few others. And Israel will continue to exist. As a result of the paltry reaction to the killing, and unless the situation gets resolved by internal Israeli politics and/or an uprising.

Israel can be prosecuted under the Genocide Convention, but that itself throws up difficulties. And it wouldn’t question Israel’s right to exist, obviously.

The view I present in my initial article is that, unfortunately, the correspondent was wrong. People may not kill people, because there are laws preventing it. They will be punished if they do it, by a court and a criminal justice system. And, although there are laws that prevent nations killing people (except combatants—humanitarian law), who will enforce those laws? Well, we’d need a tribunal like at Nuremberg after World War II. So, maybe we need to wait for another World War.

We can only say there is a legal prohibition against nations killing people if there is an instance that will enforce the prohibition. And there isn’t one. So, you can say there is a prohibition, if you want, based on moral or other considerations. But, legally, there isn’t. Yes, there’s the Genocide Convention, yes, there’s the UN Charter. Yes, there is the International Criminal Court (but its jurisdiction doesn’t cover nations, just individuals). There is the International Court of Justice, which is there to mediate in questions between nations. But there is no court that can condemn a nation for carrying out a genocide and enforce that condemnation, as the action by South Africa against Israel has shown. Remember that finding “in law”?

Unless you know better?

1. By Ashraf Amra - United Nations Relief and Works Agency for Palestine Refugees in the Near East, CC BY-SA 3.0 igo, https://commons.wikimedia.org/w/index.php?curid=166701657.