Is There a Historical Right to the Land of Israel?

By Chaim Gans

A philosophical approach to a century-old question.

III

It should be noted that Zionism is not the only political movement to have made use of the historical-rights argument. Prussian Chancellor Otto von Bismarck invoked it in order to justify the annexation of Alsace-Lorraine to Germany in 1870. Similarly, Tomas Masaryk used it in order to justify the inclusion of the Sudetenland in Czechoslovakia after World War I, and Slobodan Milosevic recently cited historical rights in order to justify the expulsion of the Albanians from Kosovo. In all of these instances and countless others, leaders of national groups resorted to historical rights in order to make territorial claims. Yet there are two significant differences between how one could interpret the early Zionists’ reliance on the historical rights argument, and how one could interpret the use of this argument in the other cases just mentioned.

Firstly, whereas 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 (the “formative territories” argument), those who used it in most other cases referred mainly to the primacy of the nations they represented in the history of the territories they were claiming (the “first occupancy” argument).¹⁴ Indeed, when Bismarck sought to annex Alsace-Lorraine to the German Reich after the Franco-Prussian War, he cited the fact that these territories had been under German rule in the sixteenth century. Tomas Masaryk’s demand to include the Sudetenland in the Czechoslovakian Republic after World War I, despite the fact that the Sudetenland was populated mainly 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. Conceivably, this interpretation of the historical rights argument as a first occupancy argument is also implied in the arguments used by the indigenous peoples of North America, Australia, and New Zealand, all of whom demand that territories usurped by European latecomers be returned to them.¹⁵ Similar demands seem to be at play in the dispute between the Tamil and the Sinhalese populations in Sri Lanka as well as in many other cases.

In contrast, when the Zionist movement referred to historical rights it focused more on the predominance of the land of Israel in Jewish history and its significance for Jewish identity than on the fact that Jews had lived in the land of Israel long before the Arabs arrived there. One of the most noteworthy expressions of this sentiment can be found in Israel’s Declaration of Independence. It states that the land of Israel “was the birthplace of the Jewish people,” and that 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.”¹⁶ Indeed, these formulations stress the predominance of the land of Israel in Jewish identity, while they contain no reference to the primacy of the Jews in the history of the land of Israel.

Secondly, and more importantly, while other nations that were already living in their historical homeland resorted to the historical rights argument in order to justify demands for territorial expansion, Zionism can be interpreted as invoking the historical rights argument in order designate the land of Israel as the most suitable place for the realization of the Jewish people’s right to self-determination. Like the other Jewish movements at the end of the nineteenth century, which could be regarded as manifestations of ethno-cultural nationalism, the Zionist movement conceived of the right to self-determination as ahistorical and universal. Indeed, the dispute between Zionism and the other Jewish nationalist movements turned primarily on the issue of the geographical location for Jewish self-determination. The Bund and other autonomists held the view that the Jews should realize their self-determination in a non-territorial manner in the places where they currently resided—namely, in Eastern and Central Europe. Another view was that of the Territorialists, who seceded from the Zionist movement, contending that Jewish self-determination should be realized territorially in one of the territories currently suggested to them (such as Uganda). The third view was that of the “Zion’s Zionists,” also called “Palestinians” at the time. By invoking the historical-rights argument, they claimed that Jewish self-determination was possible only in the land of Israel, or what was then called “Palestine.”

Now, in light of the situation in Russia and Eastern Europe at the end of the nineteenth century, and at least in view of what we now know to have happened in the first half of the twentieth century, the chances that the Jews could have realized their right to self-determination there as desired by the Bund, or even to continue living there as individuals, were, to say the least, bleak.¹⁷ The Territorialists’ thinking was also flawed. Their plan, which called for the placement of Jewish self-determination in Uganda, was affected by the same flaws as the Zionist one, but without the attending advantages: The East African country on which they had set their sights was already home to other ethno-cultural groups, and the goal of settling among them was fraught with the danger of violent clashes. However, unlike the Jewish link with the land of Israel, the Jews had no formative or historical link whatsoever with East Africa.

However, none of the arguments mentioned earlier against nations returning to their formative territories—namely, that acting on principles of ideal justice in a non-ideal world could bring about unjust results, and that bloodshed should be prevented—is sufficient for denying the justice of the Zionist aspiration to realize Jewish self-determination in the land of Israel. As noted above, persecution of the Jews was rampant at the time and the threat of death or loss of human dignity was imminent. Even though bloodshed was clearly expected to be caused by their return to their historical homeland, the Jews had not yet encountered it face to face. It was only human to still entertain the hope that they might be able to protect themselves and retain their dignity in the land of Israel.

Stemming from the need to rescue themselves from persecution, the Jews therefore could resort to remedial justification in order to realize their primary right to self-determination, and to determine its site in their historical homeland. This rationale is very similar to what is referred to as the “necessity” defense in criminal law. This defense serves to justify acts which in normal circumstances are considered legally and morally unjustified, or at least excuses those committing these acts from liability for having committed them. The defense in question is similar to that granted to a mortally wounded person who has no way of saving his life other than by breaking into a pharmacy to steal the medicines that would save his life.¹⁸ As to the query “Why in our pharmacy?” that some Arabs might come up with, the response would be 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, Eastern Europe, and Argentina, as it were). The medicine is a unique one, or is at least better than the others. That is, an attempt to realize self-determination in the formative territory is the only attempt which has a chance of succeeding, or at least has better chances of success than attempts to realize self-determination in other territories. The pharmacy analogy illustrates what should have been emphasized from the very beginning, namely, that the reasons militating against the realization of Jewish self-determination in Palestine—stemming from injustice and the danger of bloodshed—were overridden not by the Jewish right to self-determination in and of itself and the ordinary reasons supporting this right (i.e., people’s interest in living within the framework of their cultures and determining their destiny within this culture), but rather by the urgent need that the Jews had, both as individuals and as a people, to protect their dignity and their physical safety.

The return of the Jews to the land of Israel was, therefore, justified, although not merely because of the historical rights argument. As demonstrated above, historical rights cannot in and of themselves serve as the basis for territorial sovereignty, but only as the basis for determining where a nation’s right to self-determination should be realized. In this regard, it may further be noted that statehood and political sovereignty is but one of the various forms the right to self-determination may take; there are other, more modest forms for institutionalizing this right. In addition, it must also be stressed that invoking the historical right as grounds for determining the location for the realization of the right to self-determination does not mean that the scope of this self-determination must extend over the whole area with which the nation in question has historical ties.

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