Past, Present, and Future: A Reply to Heyd and Benbaji

3.1 Palestine Under the Mandate

One major issue I have with the Benbaji’s response is that he does not seem to address Palestinians in his mode of argumentation; he does not imagine them in front of him nor does he believe that he can convince them. He instead seems to imagine European philosophers reading him and thus tries to reconcile the commitments of such philosophers to Enlightenment ideals with the practices of the Zionist project. His mission in this regard is easy because his European audience, with its colonial legacy, will be content to receive a justification for the colonization of Palestine, and for settler colonialism in general. He will thus help them to reconcile themselves to their past, while their approval will help him reconcile himself to his present-day Zionism. Thus, everyone will be happy, except the Palestinians, who remain absent from this conversation despite the fact they are the ones who pay the price for the ongoing settler-colonial project.

This is most evident when he discusses Palestine under the British Mandate. Benbaji – following Benny Morris – distinguishes between maximalist and minimalist Zionists. Weizman and Ben Gurion were minimalists, and they therefore accepted the Balfour Declaration. The Balfour Declaration was minimalist, in his view, because it did not include Transjordan and did not openly speak about a Jewish state but only a Jewish homeland, and because it did not specify that such a homeland would expand all over the region. Jabotinsky, by contrast, was a maximalist who insisted on having both banks of the Jordan river, and founded the revisionist movement within Zionism, which insisted on including Transjordan in the Jewish state. For his part, Weizmann drafted a constitution based on parity between Arabs and Jews. Later on, the minimalists even agreed to the Peel Commission, which suggested partitioning Palestine into two entities.^[10]

But according to what logic can this be viewed as constituting a minimalist position? Is a parity proposal at a time when Jews were about fifteen percent (just arrived) of the population really a minimalist approach? Why not simply have free democratic elections and majority rule? The demand for parity made by new (and relatively few) immigrants – which by definition meant turning the country into a binational state – does not strike me as minimalist in any sense. Proponents could be viewed as minimalist if compared to Jabotinsky, but why should Jabotinsky be the yardstick? Is the maximalist-minimalist description something internal to Jewish society? Are there no objective criteria to judge these demands? I think that at that point the Palestinians were indeed justified in resisting Zionist colonization in Palestine as long as these immigrants pursued a national plan and a settler project. Did the Jews have a right to settle Palestine and to pursue a national project within a populated country like Palestine? If so, then the Palestinians did not have a right to resist this process of settlement and nation building. But was this the case?

Neither Benbaji nor Heyd make such an argument; instead, they both take the claim for granted. But what could they tell Palestinians in 1918 in order to convince them to accept the Balfour Declaration? Why should Palestinians accept the prospect of another people coming to settle their land, to establish in it a nation-state, condemning them to being simply a religious minority in their own homeland and devoid of any national rights?

3.2 Reconstructing Benbaji’s Argument

Now there are others who have argued in support of the settlement of Palestine by the Zionists. Ruth Gavison, for instance, constructed a subtle argument – which bears similarities to that of Benbaji – whereby prior to 1948 the Zionists did not have the ‘right’ to carry out the settlement in order to pursue a national project, but did have the ‘liberty’ to do so (Gavison 2011, 17). Gavison here uses the word ‘liberty’ in the Hohfeldean sense equivalent to mean privilege (Hohfeld 1913). The distinction is that ‘right’ in the strict sense would mean a situation where the other side is under a duty – thus, my right to be paid my salary by my employer means that he is under a duty to pay my salary, and my right to private property in my house means that you are under a duty not to enter my house, and I can exclude you from it. But privilege or liberty expresses another, softer, sense of right. If both of us are walking along the seashore and we see an empty seat, then we both have the liberty to sit on that seat, and none of us is under any duty not to sit on it. Thus, we are free to compete to occupy that seat. To be in a situation of having a privilege to do A means that the other party has no right to prevent me from doing A.^[11]

The common thread between Benbaji and Gavison is their insistence on a moral tie – that both sides had equally valid moral arguments to pursue their national projects in Palestine and were like two persons that met each other in the Hobbesian state of nature where there is neither valid law, nor even established morality. Both parties, that is, were in the state of liberty, and in that state, each was entitled to pursue their own interests using their own power.^[12]

So the image emanating from both Benbaji and Gavison is of a Hobbesian state of nature where no distribution of entitlement has taken place, and where there is no clear sense of justice, where there is no property, and nothing is yours or mine.^[13] Accordingly, the Palestinians could pursue their national goals and the Zionists theirs in the same manner and there was no measure of justice to adjudicate between them. This is the picture that I want to contest in the following paragraphs. My argument is that at the time of the Balfour Declaration, the Palestinians had a right – not just a liberty – to oppose Zionist colonization of their homeland.

I will proceed in as follows: I will argue that at least prima facie the Palestinian community had the right around the time of the Balfour Declaration to continue to live as community on the land, to pursue cultural and economic development, pursue its national project, and to seek self-determination in the future.^[14] The Palestinians were simply making their first steps in that direction. Did they have the right not to be interfered with by the Zionist settler-colonial project? On what legal and moral basis?

3.3 Prima Facie Legal and Moral Rights of the Palestinians

As for the legal basis, I am not sure that I have a clear-cut answer. On the one hand, Article 22 of the Covenant of the League of Nations recognized Palestine to be in ‘Group A’, that is, one of those nations ready for self-determination subject to a period of tutelage, which meant that the population of Palestine at that time was a collective that was on its way to being recognized as a people deserving self-determination.^[15] On the other hand, however, the League of Nations had itself adopted and incorporated the Balfour Declaration in the Letter of Mandate, thus assigning the British Mandate with the task of establishing a Jewish homeland in Palestine.^[16] The League of Nations thus established an internal tension between the missions of the British Mandate. But let us assume for the sake of argument that the League of Nations intended to stress the commitment to establishing a Jewish homeland.

If that is what Benbaji wants to rely on, he probably should be more careful about what he wishes for: the international legality of that time was nothing more than the will of the dominant imperial colonial powers of Britain and France. Some might have a romantic view of international law as representing some basic natural values, but clearly that was not the case in the late nineteenth and early twentieth centuries. The dominant approach to international law was a positivist one that reflected the agreement between the colonial powers.^[17] The whole legal universe was split between citizens and states, and there was no standing whatsoever left to any entities that were less than a state, such as tribes, clans, communities, guilds, ethnic groups, etc. At the same time, the model of sovereignty that was adopted was unitary and absolute, and so if a certain country was not recognized as a state having sovereignty according to the Westphalian order, then settling that country or ‘invading’ it was not even considered an act of aggression.^[18]

As such it is clear that according to international law prevailing at the time, the Balfour Declaration was not a clear act of invasion on the part of the British or on the part of the Zionists, given the colonialist political imagination. But that version of international law was nothing more that the will of the colonial powers^[19] (in that sense it is not clear what was international in that law), and I am not sure that Benbaji and the Zionists want to position themselves on the side of the colonial powers; after all they consider Zionism to be a national liberation movement.^[20]

While the Palestinians did not have clear-cut recognizable legal right in international law (i.e., as granted by the colonial powers) to resist Zionist settlement at the time, I want to argue that they did have such a moral right. This right is not a sort of property right that is based on absolute historical ownership or on the notion that Palestine has belonged to Arab-Palestinians since time immemorial but is rather based on the simple fact that an existing and thriving community was living on that land as a whole and establishing economic and social and cultural relations. If we reject the colonial logic of the time, then there is no reason to think that communities that are less than a state cannot have collective rights, including collective territorial rights based on reliance interest.

Anna Stilts, for example, has developed the idea of what she calls “rights of occupancy” (Stilz 2013, 41). Rights of occupancy could be granted to those groups who have a vested interest in occupying certain territories and have developed a reliance interest in relation to that specific land as a collectivity. This right is not a historical right in the strong sense that is at times deployed by religious Zionists as being the first occupants of the land: it is far less than that. It is rather based on the fact that in the early twentieth century the Palestinians used and lived on this land, which was the site upon which they thought that their dreams could be fulfilled and materialized.^[21] As a representative of a subaltern group such as the Jews in the last century, I was expecting Benbaji to side with me on that point, and to be on the side of the colonized and those left out of the world order – and not to side with colonial powers who were persecuting Jews at that time, and not to adopt the colonialist logic that states: either you are a sovereign state or you have no collective rights.

I think that I have managed to establish that at least prima facie the Palestinians did have the right to their land as a collective right on the way to implementing their right to self-determination. That right includes not only the land that they were settling and farming but also adjacent land that could be a reservoir for future generations. If that is granted, then prima facie they had the right to resist their colonization by Britain, and to resist the Zionist project in establishing a Jewish state (under the name of a Jewish homeland)^[22] in their midst. But things are not that simple.

I tend to think of rights in a relational manner; one should be always aware that my right to property means that I exclude others from it, and my right to certain territory will influence the rights of others as well. Thus, the rights of Palestinians must be weighed against the claims of others, and in this case against the claims of the Jews in general and Jewish settlers in Palestine in particular.

3.4 Jewish Rights in Palestine

One claim that can be made by the Jews as to their right to the land is based on first occupancy: we were first to rule over that land, which is the place where we established our first kingdom.^[23] I think this claim should be rejected, and for reasons that were best articulated by Chaim Gans himself (Gans 2009, 97–123). If each and every people were to claim the right to return to the land of their ancestors after two thousand years, what would the world look like? What instability would such a claim create? And what would it mean for those who have been living on that land for centuries?

The second argument would be a combination of two general rights: one is based on equality and the other on necessity. The combination of both, while supplemented by the historical right in the background might be the best strategy (see Gans 2008, 2015). The argument develops in the following way. The Jews – like many other nations – have an interest in preserving and developing their own language and culture, and as such they are entitled to the right of self-determination.^[24] But the right to preserve one’s culture does not by definition justify a right to a sovereign nation state.^[25] If we were to accept this logic, there would be as many states as the number of languages in the world – that is, two thousand states. That is an unreasonable result. Self-determination, however, could be achieved within a unit less than a sovereign state such as through cultural autonomy, a binational state, a federation or other forms that can guarantee the preservation of culture and the flourishing of the members of the group.

The equality argument, which aims to put the Jews on an equal footing with other ethnic-cultural groups has two steps: to establish the right to self-determination, then to extend this right to the Jews themselves as a nation equal to other nations. This general right to self-determination is then supported by argument based on necessity: the Jews were persecuted in late nineteenth century and suffered numerous pogroms in their history (not to mention the Holocaust).^[26] They needed a safe haven to protect them in the shape of a nation state capable of providing them with shelter and security.^[27] But why in Palestine in particular? Because the Jews have a special spiritual and religious relationship to Palestine – the Land of Israel. The spiritual-cultural-symbolic infrastructure was ready-made for such a project and could be capitalized on by the Zionist movement.^[28]

But what is the problem with this narrative? This narrative might be appealing to many European intellectuals, but the real question is how far it can be convincing to Palestinians. There are a few things here that I am ready to concede for the sake of the debate, and I will not insist here on disputing them in full.^[29] There is a kernel of truth in the three arguments: the argument from need/necessity following persecution, the argument from equality and the interest in preserving culture, and the argument of historical-spiritual ties to the land of Palestine. Nevertheless, I don’t see how the arguments can trump Palestinian rights.

3.5 Rights in Balance?

Still, the question persists: how can these arguments affect or influence the prima facie right of the Palestinians living in their homeland? Do we have a symmetrical position where the arguments and claims of both parties are equally valid?

Consider the well-known distinction in legal theory between special rights and general rights, as developed by Hart (1984). Special rights are particular rights against specific persons due to some ‘historic’ event in the past that establishes the right and justifies it. If your car hits my car, this event of collision creates a duty on you – correlative to a right on my part – to compensate me for the damage. This is the basic logic of corrective justice. But on the other hand, my right to freedom of expression is not addressed to someone specific, and, like my right to a lawyer in criminal proceedings does not arise out of an ‘event’; rather it might be justified on the basis of a fundamental need in humans, or on their fragility. Hart’s distinction echoes Immanuel Kant’s distinction between perfect duties – e.g. the perfect duty to return a loan – and imperfect duties, i.e., duties of solidarity toward others who are in need.^[30]

No one can ignore the fact that at the end of the nineteenth century – and clearly upon the rise of modern anti-Semitism and later the rise of the Nazi regime – the Jewish people had a need for refuge in order to save them from the horrors they experienced and were still threatened by in Europe – though that assumes that Europe was not able to grant them such protection. But what kinds of duties does that fact impose on the Palestinians? And why should the Palestinians alone bear the burden of saving a people that others were persecuting in Europe? The Palestinians were under the general duty of assistance but nothing more. They were under a duty of hospitality, to welcome Jews as refugees in their home, but they were under no duty to offer them their home, or to give away half of it. It was Europe itself that had a special duty to assist and rescue the Jews, given that the harm done to the Jews was committed first and foremost by Europeans. All Europeans and all Zionists must put themselves in the shoes of a Palestinian at the turn of last century and see if they would accept the prospect of their land being torn apart, their nation split into two states, or of becoming a minority within their homeland, ruled by a majority of another people.^[31]

It has never escaped my attention that the Zionist movement included different streams within it, those who wanted a separate state and those, like Martin Buber and members of Brit Shalom, who called for a binational project.^[32] Buber went out of his way to advocate for a binational state based on equality. I am not interested in analyzing the ‘intentions’ of the first Zionists and in this regard, and I do not have reason to question Buber’s intentions. Some look for quotations in the founding Zionist texts to prove that the whole project since its inception aimed to expel the Palestinians from Palestine and that was the dominant ‘intention’ of the Zionist. Masalha (1992) and Pappe (2007) have done an excellent job in this regard, but I have no interest in relying on such quotations from the mouths of the Zionist leaders. Nor am I interested in the good intentions of Buber or the bad intentions of Ben-Gurion, Herzl or Jabotinsky. What mostly matters is not what the Zionist wanted but what the Zionist project ‘wants’ – that is, what its implementation requires.^[33] The Jews were simply ‘thrown’ into Palestine with the help of Britain and specific structural dynamics arose from this fact, regardless of the intentions of the involved parties. It is true that Jews were refugees from Europe; but if Europeans saw the backs of a fleeing people, the Palestinians saw the faces of approaching settlers.

Jabotinsky, most famously, argued in his essay ‘The Iron Wall’ that the Palestinians, like all other native people, would resist the Zionist colonization and that there would thus be no way to escape the resort to force. But he was not simply an aberration or a contingent development; as Arendt correctly noted, there is a built-in tilt in Zionism to move from left to right, to more revisionist radical violent elements (see Arendt 2007). This ongoing movement to the right springs from the fact that the more time passes, the more the Palestinians will show resistance, which, by definition, will trigger a more radical response on the part of the Zionists. The offensive nature of Zionism as a settler project is very difficult to avoid or hide for long. Bear in mind, for instance, that the Jews constituted only twelve percent of the population at the time of Balfour Declaration in 1917 and owned an insignificant amount of land; and even after thirty years of settlement under the Mandate and with its full support, the Jewish Yishuv owned no more than seven percent of the land of Palestine.^[34] Does not all of this show that establishing a Jewish state would be at the expense of the native population? Were the Palestinians therefore not justified in resisting the project?

3.6 Settler Colonialism as a Provocation and the Logic of Self-Defense

The more the Zionist project of settling more lands moved forward, the more resistance there was on the Part of the Palestinians, the more this resistance triggered radical groups within the Zionist camp, and the more these groups resolved to use force, framing their actions in terms of self-defense. It might the case that the argument of self-defense was simply manipulated by the Zionists, but I am prepared to concede that many times they did feel and experience immediate danger or risk. But that was the whole point of my original paper: my argument was that the Zionists simply overlook the fact that the mere project of settling Palestine with the support of imperial powers and with the clear aim of transferring the land into a Jewish homeland for the Jews was in itself a provocation and an act of aggression against the aspiration of the Palestinian people and a threat to their future. When this fact was established, the whole terms of the debate changed, and the Jewish Yishuv initially, and later on the State of Israel, portrayed itself as always acting in self-defense, as if the first move or act of aggression was made by the Palestinians themselves. But the Palestinians were not moving, they were ‘parked’ in their homeland when this historical accident occurred. The Zionists were, so to speak, driving a car that hit Palestine. It may be the case that the Zionists were being chased by a criminal and fleeing for their lives, but the Palestinians did not initiate the collision.

As long as one overlooks or ignores this basic fact – that settler colonialism is a provocation – then it is easy to view the Palestinians as the aggressor. This same logic repeats itself in the occupied territories after 1967. Slowly but surely, the occupation has become a transparent reality, not discerned by the Israelis, as if it constitutes a natural phenomenon. As such, any act of resistance on the part of Palestinians is seen an act that interrupts the normal peaceful life of the Jews in Palestine. But life is not normal for those Palestinians under occupation that see their land stolen on daily basis. So, the logic of self-defense becomes prevalent and occupies the political imagination of Israelis. This logic brackets the ‘original’ issues and supplies the Israelis with an independent argument for striking back: Now we are entitled to hit back against the Palestinians because they hit us. What I have called second-order arguments – fixated exclusively on Israeli security – simply devour the whole conversation, and no place is left to consider the question: What about the Palestinian entitlement to land, self-determination and security?

Returning to Benbaji’s argument regarding the minimalist approach: assume that we accept this approach by Zionists, that such an approach did exist and that such demands were legitimate.^[35] Yet how can a minimalist approach justify a de facto maximalist-expansionist state? In the best-case scenario, the minimalist approach can justify a minimalist Israel – an Israel within the borders according to the 1947 partition plan, while keeping the Palestinians within that state as full equal citizens including those who were to become refugees. But the fact of the matter is that Israel occupied much more land than what was assigned to it according to the partition plan, and expelled hundreds of thousands of Palestinians (some fled), turning them unto refugees.^[36] In 1967, Israel occupied the rest of Palestine and turned many hundreds of thousands more into refugees. Now, how can the minimalist approach justify a maximalist reality? Be that in 1948, or more clearly, after the 1967 war. The only move that Benbaji can suggest is that since the Palestinians rejected the minimalist Zionist approach, Israel is entitled to all of Palestine or at least most of it.^[37] Why? Because we the Zionists offered to split Palestine in two and the Palestinians rejected this, and their rejection resulted in a war, whose results they thus have to accept. I think that this is the implicit logic in Benbaji’s argument and many liberal Zionists including Heyd as well.

But this a problematic logic indeed, for it is an invitation to endless war. Imagine that you have 100 dollars,^[38] and you drop it. I pick up the money and claim that it is mine, and I suggest that we split the 100 dollars equally between us, an offer that you reject. Not only that, but you push me and try to take the 100 dollars from me by force. Now that you have hit me, I – claiming self-defense – hit you back with brutal force and keep the 100 dollars. Can the fact that you were not willing to compromise justify the conclusion that the 100 dollars should be yours now? Does the fact that you reject an offer that is unjust justify the loss of your homeland?^[39]

One line of argument might be in the affirmative. Yes, the fact that you have rejected the offer and launched a war might establish a right on my part. On what basis? Now that we are enemies, I have no reason to trust you anymore, and I am afraid that whatever compromise I make with you will endanger my security.

The problem with this logic – which has been at the heart of Israel’s argument for security throughout the years of its existence – is that it turns the mere fact of the conflict itself into the basis and a source of rights. It feeds on fears and the fear feeds expansion. The state of war becomes the major justification for holding the land but holding the land invites war in itself. Even the regime of Apartheid in the Palestinian Territories could be justified in terms of self-defense, because the best away to guarantee security for the settlers might be a different regime of land, education, transportation etc. Israel is not unique in this regard, and most settler societies developed and expanded their settlements while claiming self-defense. Thus, the second-order argument about security postpones issues of entitlement and historical justice forever.^[40]