Criticism Is Not Erasure

Israel, State Responsibility, and the Difference Between Remedy and Abolition

Part III of a Seven-Part Series

One can defend Israel’s continued existence and still subject Israeli governments, laws, and military actions to severe criticism. Those propositions are often treated as if they were mutually exclusive, but they answer different questions. Criticism concerns what a state has done, what institutions have done in its name, and what obligations may follow. The continued existence of the state raises a different question about political society, sovereignty, and the rights of the people who live within it.

The distinction matters because Israel is subject to some of the gravest criticisms that can be made against a modern state. Critics point to its prolonged occupation of Palestinian territory, settlement policy in the West Bank, restrictions on Palestinian movement, unresolved refugee claims, military conduct, unequal treatment, and constitutional arrangements that privilege Jewish national self-determination. Human Rights Watch and Amnesty International have gone further, concluding that Israeli authorities maintain systems amounting to apartheid. Israel rejects that characterization and argues that many of its policies must be understood in the context of security threats and an unresolved national conflict.¹

Those disputes should be argued on their evidence. Yet even after a wrong is established, another question remains: what remedy follows from it? That question is often skipped. Allegations of grave injustice are sometimes treated as though they automatically decide the future legitimacy of the state itself. International law generally proceeds more carefully.

The International Law Commission’s Articles on State Responsibility identify cessation of continuing wrongful conduct, assurances of non-repetition, and full reparation among the ordinary consequences of internationally wrongful acts. The framework is built around responsibility and remedy. It assumes that states can commit serious wrongs and remain subjects of law capable of owing repair.²

That distinction has direct relevance to Israel. An unlawful occupation may require ending the occupation. Discrimination may require equality. Unlawful settlements may require cessation, evacuation, or another legal remedy. Refugee claims may generate obligations involving return, restitution, compensation, or negotiated settlement. Crimes may require investigation and prosecution. None of those propositions, standing alone, establishes that the state itself must disappear.

What the Same Logic Would Mean Elsewhere

The point becomes clearer when the principle is applied outside Israel. These comparisons are not claims that the histories are identical. South Africa is not Israel, Jim Crow America is not the Israeli-Palestinian conflict, and Rwanda, Russia, Myanmar, and Western Sahara each involve distinct histories, legal frameworks, and political circumstances. The narrower question is whether the proposition that grave wrongdoing requires the disappearance of the state is a principle we ordinarily apply elsewhere.

Apartheid institutionalized racial domination in South Africa and denied political equality to most of the population. The political order had to be transformed, but the remedy was not the disappearance of South Africa. Apartheid was dismantled, universal elections were held in 1994, and the country continued under a radically different constitutional system.

The United States maintained slavery and later Jim Crow segregation and systematic Black disenfranchisement. The remedies included abolition, constitutional amendments, voting-rights enforcement, desegregation, civil-rights legislation, and institutional reform. Those changes were profound, and many remain incomplete, but the injustice did not lead to the conclusion that the United States itself had to cease to exist.

Rwanda provides a different kind of example. State and military officials participated in the 1994 genocide, yet the international and domestic response focused on defeating the genocidal regime, prosecuting perpetrators, rebuilding institutions, and continuing Rwanda as a sovereign state. Russia’s invasion of Ukraine has generated legal questions involving withdrawal, sovereignty, territorial integrity, war crimes, and reparations rather than a doctrine that Russia must therefore disappear. International responses to abuses against Rohingya and other minorities in Myanmar likewise emphasize protection, citizenship, return, accountability, and prosecution rather than the elimination of Myanmar as a political society.

These examples do not excuse wrongdoing or make unlike histories equivalent. They identify a more general principle: the ordinary response to state injustice is to end the injustice, change the political order where necessary, and repair the injury. Dissolving an existing political society is a different conclusion that requires a different argument.

Occupation Is an Argument About Occupation

The strongest example in the Israeli-Palestinian context is occupation. In its advisory opinion of July 19, 2024, the International Court of Justice concluded that Israel’s continued presence in the Occupied Palestinian Territory is unlawful. The Court connected that conclusion to annexationist policies, settlement activity, and the prolonged obstruction of Palestinian self-determination. It said Israel must bring its unlawful presence to an end as rapidly as possible and cease new settlement activity.³

The scope of the ruling is important. The Court did not conclude that the State of Israel itself is unlawful. Its opinion concerned Israel’s continued presence as an occupying power in territory occupied since 1967. The distinction between Israel and the territory it occupies is therefore built into the legal analysis.

That distinction illustrates how the logic of remedy ordinarily works. If the occupation is unlawful, the remedy concerns the occupation. If settlements violate international law, the remedy concerns settlement policy. If Palestinians are denied self-determination, the remedy is the realization of Palestinian self-determination.

None of this makes the required changes minor. Ending a decades-long occupation could transform borders, settlements, security arrangements, citizenship, control of resources, and political institutions. The scale of reform may be enormous. Yet profound transformation and state extinction remain analytically different propositions.

Apartheid, If Established, Still Raises a Question of Remedy

The same distinction applies to the apartheid argument. Human Rights Watch concluded in 2021 that Israeli authorities were committing the crimes against humanity of apartheid and persecution in specified circumstances. Amnesty International issued a broader apartheid finding in 2022. Israel and many supporters of Israel reject those conclusions, and scholars, lawyers, and advocates continue to dispute the application of the term.

The point here is not to settle that controversy by assertion. It is to ask what follows even if the allegation is established. The remedies proposed by Human Rights Watch and Amnesty are extensive. They include dismantling discriminatory structures, repealing discriminatory laws, ending settlement-related policies, ensuring equal rights, accountability, and reparations. Human Rights Watch also addresses Palestinian refugee claims.⁴

Those recommendations are demanding, but they remain directed toward rights, institutions, law, conduct, and accountability. They do not establish a general rule that a finding of apartheid automatically extinguishes statehood.

South Africa again helps clarify the distinction. Apartheid South Africa was not repaired through modest policy adjustments. Its political order had to be fundamentally reconstructed. Yet the transformation abolished apartheid, not South Africa. That comparison does not prove that Israel and apartheid South Africa are historically or legally identical; they are not. It illustrates a narrower point: even when a political system is found to be structurally unjust, the remedy may be regime transformation rather than national disappearance.

Discrimination Is an Argument for Equality

Israel’s 2018 Nation-State Basic Law has generated another serious criticism because it identifies Israel as the nation-state of the Jewish people and reserves national self-determination in the state to the Jewish people. Critics argue that provisions of this kind are difficult to reconcile with full national equality for Palestinian Arab citizens.

If inequality is the problem, however, the most direct remedy is equality. That may require stronger constitutional protections, amendment or repeal of discriminatory laws, changes in public institutions, or a more fundamental restructuring of relations between Jewish and Palestinian citizens. Different political models—two states, confederation, federation, or a single constitutional state—would answer those questions differently.

The existence of discriminatory law does not itself decide which political structure must replace it. The additional conclusion that Israel must cease to exist requires an additional argument.

The American civil-rights experience illustrates the same distinction. For decades after emancipation, Jim Crow law reduced Black Americans across much of the South to second-class citizenship through segregation and disenfranchisement. The eventual response involved constitutional enforcement, federal legislation, litigation, political mobilization, and institutional reform. The depth of the injustice did not make reform easy, but the central goal of the civil-rights movement was generally to transform American democracy rather than abolish the United States.

Refugee Claims Require Justice, Not Logical Shortcuts

The Palestinian refugee question presents perhaps the most difficult form of the argument. Hundreds of thousands of Palestinians fled or were expelled during the war surrounding Israel’s creation in 1948. Their descendants now number in the millions, and questions of return, restitution, compensation, citizenship, acknowledgment, and security remain unresolved.

Those claims should not be weakened by saying that other peoples have also been displaced. The relevant question is what obligations follow from the Palestinian experience itself.

The law of state responsibility is useful here because continuing statehood does not erase responsibility; it makes responsibility possible. A state that survives remains capable of owing restitution, compensation, satisfaction, and guarantees of non-repetition. The International Law Commission framework specifically treats reparation as a consequence of wrongdoing, not as something displaced by the continued existence of the responsible state.⁵

A future Israeli-Palestinian settlement could therefore require substantial remedies for Palestinian refugees without presupposing that millions of Israeli citizens must first lose their political society. The exact balance among return, compensation, restitution, resettlement, citizenship, and security remains contested. The existence of the claim does not determine the final form of the remedy.

Governments, Regimes, States, and Peoples Are Not the Same Thing

Much confusion enters the debate when Israel, an Israeli government, Israeli law, Zionism, Israeli Jews, and the Jewish people are treated as interchangeable categories. They are not. A government can fall without a state disappearing. A law can be repealed without a people becoming stateless. A political regime can be reconstructed without eliminating the society beneath it. A national ideology can be criticized without assigning collective responsibility to everyone born into the national community.

The same distinction applies to Palestinians. Hamas is not synonymous with the Palestinian people. Crimes committed by Palestinian armed groups do not eliminate Palestinian national rights. Opposition to a particular Palestinian government cannot settle whether Palestinians possess a right to self-determination.

The international framework itself reflects these parallel claims. Israel was admitted to the United Nations on May 11, 1949, through General Assembly Resolution 273. In 2012, the General Assembly accorded Palestine non-member observer State status while explicitly reaffirming the Palestinian right to self-determination and independence.⁶ ⁷ Recognition of one people’s national claims therefore does not logically require denying the other’s. The difficult work begins precisely where both claims are taken seriously.

State Responsibility Is Not State Innocence

None of this argument requires treating Israel as innocent. The UN Charter rests upon sovereign equality and prohibits force against the territorial integrity or political independence of states, but it also places states under legal obligations.⁸ Sovereignty is not immunity. States can violate international law and remain states; indeed, the law of state responsibility assumes precisely that possibility.

This is why the phrase “right to exist” can sometimes obscure more than it clarifies. International law more often speaks of statehood, sovereignty, territorial integrity, political independence, self-determination, and legal responsibility. A state can possess international legal personality while simultaneously violating the rights of another people.

The difficult task is therefore to hold two propositions together. Israel’s continued political existence does not excuse occupation, discrimination, unlawful settlement, or other demonstrated violations. Palestinian rights do not become optional because addressing them may be politically difficult. At the same time, those violations do not, without further argument, establish that Israel itself must be abolished.

That distinction is not special treatment for Israel. It is the way we ordinarily think about states. South Africa did not have to disappear for apartheid to disappear. The United States did not have to disappear for Jim Crow to be dismantled. Rwanda did not cease to be Rwanda because officials of its government participated in genocide. Russia’s invasion of Ukraine creates questions of withdrawal, territorial integrity, accountability, and reparation rather than a general doctrine that Russia must cease to exist.

Criticism can therefore be radical without becoming erasure. An unlawful occupation may have to end. Settlements may have to be removed. Constitutional structures may require significant reform. Palestinian refugees may possess substantial claims to remedy. Palestinian self-determination cannot remain indefinitely subordinate to Israeli control. Crimes, where established, require accountability. These are demanding conclusions, but they are not the same conclusion as national extinction.

The more defensible principle is both more critical and more consistent: identify the wrong, establish responsibility, and pursue a remedy proportionate to the wrong. If Israel violates that standard, it should be held accountable under it. If other states violate it, the same principle should apply to them.

Part III has therefore asked what follows from what Israel does. Part IV asks a different question: what follows from how Israel came into existence? Some critics argue not merely that Israel has committed wrongs, but that its origins—settler colonialism, partition, displacement, imperial sponsorship, or ethnonational state-building—make the state itself permanently illegitimate. That is a different argument, and it requires a different test.

Notes

1. Human Rights Watch, A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution (2021); Amnesty International, Israel’s Apartheid Against Palestinians (2022).
2. International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), especially arts. 29–31.
3. International Court of Justice, Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, Advisory Opinion, July 19, 2024.
4. Human Rights Watch, A Threshold Crossed, Recommendations; Amnesty International, “Israel Must Dismantle Its System of Apartheid,” 2022.
5. International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, arts. 30–37.
6. United Nations General Assembly Resolution 273 (III), May 11, 1949.
7. United Nations General Assembly Resolution 67/19, November 29, 2012.
8. Charter of the United Nations, art. 2.