From Israel to Ayodhya, how Might becomes Right in politics and law

Arbeit Macht Frei was a maxim spelled out in wrought iron letters at the entrance of Nazi concentration and extermination camps. The words, which translate as “work makes free” or “work will set you free”, stayed with me alongside a number of horrors following visits to Sachsenhausen and Dachau. It felt as if the adage, which offered inmates an illusory path to liberation, also carried within it the truth of the camps, encapsulated by the central word, Macht. Used as a noun, Macht means Power or Might. The deceptively well-meaning Arbeit Macht Frei disguised, but unintentionally revealed, the only thing that really mattered in the context of the camps, Might.

The concentration camp slogan has become in my mind an emblem of sophisticated theorising serving the interest of brute power. Hitler’s party rarely hid its belief that might is right: the Arbeit Macht Frei signs are outliers rather than representatives of Nazi practice. However, most regimes, especially democratic ones, feel obliged to locate their actions in a moral framework, and the media, courts, citizens and allies of these nations often provide high-minded justifications for exercises of naked power.

While the camp gates represent an extreme form of the logic commonly used by formally democratic countries, nothing that follows in this article should be taken to suggest an equivalence between Nazi crimes and policies adopted in contemporary times.

The case of Israel

Earlier this week, the Donald Trump administration reversed a longstanding US position on Israeli settlements in the West Bank, deeming them legal and paving the way for their permanent annexation. It was the latest in a century of betrayals faced by the Palestinians. This map shows how Israel has expanded in the territory formerly covered by the British Mandate for Palestine. European Zionists bought a few patches of land starting in the late nineteenth century. After the First World War, the British promised them a Jewish homeland within the Mandate. In 1947, this was formalised by the United Nations, which gave the Zionist side a large chunk of the region.

The Arabs rejected the Partition outright, and justifiably so because it violated the UN Charter’s principle of self-determination. They attempted to press their case by force, with four nations attacking the newborn state of Israel. When months of fighting ended, the Israelis had beaten back the combined Arab armies, and controlled not only the territory granted them by the UN, but 60% of the land given to the Palestinians.

In 1967, Israel launched a pre-emptive war against its neighbours, seizing the Golan Heights from Syria, the Sinai peninsula from Egypt, and the West Bank from Jordan. These countries retaliated in 1973 and did enough damage to bring a worried Israel to the negotiating table. The process culminated with the return of the Sinai peninsula to Egypt as part of a peace deal brokered by Jimmy Carter.

At the present moment, Palestinians administer a tiny strip of land in Gaza and a few spots of territory in the West Bank, but have no country to call their own and no prospect of a contiguous nation-state emerging in the future. They would accept the offer made to them by Bill Clinton in the 1990s, but at that time, they wanted a return to 1967 borders. In 1967 they would have agreed to the 1947 plan, while in 1947 they believed the entire territory of the Mandate ought to belong to them.

The world at large has fallen in line with each act of dispossession, each shift on the ground, and might well accept Israel’s permanent hold on most of the West Bank and eventually even the Golan Heights. The European Union is making the usual noises about the illegality of Israeli settlements but, as demonstrated by the case of Iran, it is a spineless body incapable of standing up to the United States.

Israel’s might has proven right.

The matter of Ayodhya

The Ayodhya dispute concerns a far smaller chunk of land than the British Mandate for Palestine, but bears some connection with it. Hindu activists have asserted a kind of divine right to the acres occupied by Mir Baqi’s mosque, paralleling the Zionist claim to Israel and Judah, which rests on the idea that God gave the land to the Jews. These are not declarations that could stand the scrutiny of democratic politics and modern secular law, and so the religious standpoint of both claims has been twisted into a cultural and historical perspective.

In Ayodhya, this approach reached its climax with the Supreme Court putting its imprimatur on the arguments of the Hindu side. To be more precise, its judgement rejected the arguments put forward by the Hindu side, but then invented one of its own to give Hindu activists what they wanted. It denied the plaintiffs’ contentions that the construction of the mosque was illegal and that it was built after demolishing a temple. Instead, it based its verdict on the “balance of probabilities”, a standard of proof that requires 51% certainty, a far lower threshold than “beyond reasonable doubt”. According to the verdict, the Muslim side lost because it failed to prove exclusive possession of the site between 1528, when the mosque was built, and 1857, when prayers are documented to have been conducted within it.

This is an absurd position, because a mosque which was active when documentary records began, and which was located in an area with a significant Muslim population in a region controlled by Muslim rulers since it was constructed, should be presumed to have been in use for the duration of its existence. No documentary evidence of namaaz being offered is required for it to pass the balance of probabilities threshold comfortably. After all, how many mosques can we point to anywhere in the world which offer a contrary example?

Reading the core of the verdict was an Arbeit Macht Frei moment. It felt like the judges had searched desperately for a way to justify the unjustifiable, a way to cover up the compulsions of political power with a high-minded explication of law.

The verdict was unique in one respect: it completed a process of dispossession even as it identified that same process as being riddled with criminal acts and awarded reparations to the aggrieved party as recompense for the crimes. Given that the court called the mosque’s demolition on December 6, 1992, a grave injustice, and given that the Hindus would never have gained possession of the land without that injustice being perpetrated since no court would order a mosque torn down to build a temple, the conclusion is unmistakable that the court rewarded a criminal conspiracy.

The role of Time

This only feels perverse because of the ridiculously long legal journey the case traversed, covering virtually the entire period that India and Israel have existed as independent nations. That kind of temporal dimension is rarely encountered in important trials. On the eve of the final verdict, even the most prominent defenders of the Muslim side, while asserting their right to rebuild the mosque, hesitated to say that actually building it would be appropriate. The brute passage of time renders some solutions untenable, no matter how just they appear in the abstract.

I can, for instance, without inconsistency argue both that Israel had no business existing in 1948 and that its elimination today would be dreadfully unjust. Similarly, asserting that the genocidal colonisations of the Americas and Oceania by Europeans were among the most horrible crimes in history is not an argument for attempting to undo those acts. Time’s Arrow by its very nature is irreversible, a consequence of which is that the conversion of might to right is merely a function of time.

To say this is not to reject the idea of exposing contemporary hypocrisies and opposing unjust power. Rather, the task is made more urgent with the understanding that time is not on our side, because history is in some ways an iron gate with a slogan on it saying, Arbeit Macht Frei.