From: heb_roots_chr@mail.geocities.com
Sent: Tuesday, September 16, 1997 12:28 AM
To: Hebraic Heritage Newsgroup
Subject: R&B NEWS: "CIVIL DISOBEDIENCE, JEWISH LAW AND THE PEACE PROCESS
To: rb@rb.org.il
From: "Root & Branch Association, Ltd." <rb@rb.org.il>
Subject: R&B NEWS SERVICE: "CIVIL DISOBEDIENCE, JEWISH LAW AND THE
MIDDLE EAST "PEACE PROCESS - An Informed Comment on 'Sedition' in
Israel" by Prof. Louis Rene Beres
"CIVIL DISOBEDIENCE, JEWISH LAW AND THE MIDDLE EAST "PEACE PROCESS - An
Informed Comment on 'Sedition' in Israel"
by Prof. Louis Rene Beres
WEST LAFAYETTE, September 12, Root & Branch: Moshe Feiglin and Shmuel
Sackett have been found guilty on the charge of sedition. Yet, their
"crime" was nothing more than exercising the democratic right of civil
disobedience. What is more, they expressed this right only to protect
Israel from the Oslo-dictated march to annihilation
and disappearance. Ironically, the roots of this essential right in
jurisprudence lie plainly in Jewish Law.
>From its very beginnings, Jewish law has been viewed as an expression of
God's will. Biblically, the law is referred to as the "word of God,"
never of humankind. God is the sole authentic legislator, and
righteousness lies in observance of His law. Moreover, the absence of
righteousness places at risk the lives and well-being of both the
individual and the entire community.
For ancient Israel, law was always the revealed will of God. All
transgressions of the law were consequently offenses against God. The idea
that human legislators might make law independently of God's will would
have been incomprehensible. Indeed, as God was the only legislator, the
sole function of human authorities was to discover the law and to ensure
its proper application. According to Talmud: "Whatever a competent
scholar will yet derive from the Law, that was already given to Moses on
Mount Sinai."
It follows from all this that, in the Jewish tradition, the principle of a
Higher Law is not only well-established; it is the very foundation of all
legal order. Where the law of the state stands in marked contrast to this
principle, it is altogether null and void. In certain circumstances, as we
shall now discover, such contrast positively mandates opposition to the law
of the state. Here, what is generally known as "civil disobedience" is not
only lawful, but genuinely law-enforcing.
What sorts of circumstances are we describing? Above all others, they are
circumstances that place at existential risk the very survival of the
state. In such circumstances, which were in fact already identified in the
Halachic Opinion issued by Prominent Rabbis in Eretz Yisroel Concerning
Territorial Compromise, the matter is one of Pikuach Nefesh and it demands
apt forms of resistance.
Israel cannot endure strategically without the heartlands of Judea and
Samaria. As the Torah is a "Toras Chaim," a Torah of life, Jewish
authorities in the State of Israel are "forbidden, under any circumstance,"
to transfer Jewish land to Arab authorities.
The writer Hillel Halkin, fearing that the state of the Jews might one day
be ruled by Hebrew-speaking Gentiles (a fear already widespread among
American Zionist thinkers like Maurice Samuel and Ludwig Lewisohn) once
wrote: "I do not believe that a polity of Israelis who are not culturally
Jews, whose roots in this land go no deeper than thirty years and no wider
than the boundaries of an arid nation-state, has a future in the Middle
East for very long. In one way or another...it will be blown away like chaff
as though it never were, leaving neither Jews nor Israelis behind it."
And in a more recent essay the same writer observed that the actual hatred
for Judaism of a very large portion of Israeli intellectuals, including
those who now create a theoretical legitimacy for current government
policies, has become a hatred of Zionism.
Halkin's fears were and remain well-founded. Under the
Rabin/Peres/Netanyahu governments, Israel was/is being transformed not only
into a polity that is more and more detached from cultural Judaism, but
into one that positively undermines both Judaism and Zionism. Lest this
argument appear to be an exaggeration, the reader need merely recall the
developing correlates of the "New Middle East," a region wherein Israel
("The Jewish State"?) will have nullified the Law of Return; yielded its
capital to become the capital of an enemy Arab state of Palestine; replaced
the Israeli flag with one lacking an offending Magen David; and substituted
a new more "secular" national anthem for the unbearable parochialism of
hatikvah.
The right of sovereignty, in all states, rests upon the assurance of
protection. Where a state can no longer offer such assurance - indeed,
where it deliberately surrenders such assurance - the critical basis of
citizen obligation must disappear. "The obligation of subjects to the
sovereign," said the English philosopher Thomas Hobbes in the seventeenth
century, "is understood to last as long, and no longer, than the power
lasteth by which he is able to protect them."
Can the current government of Israel protect its citizens? Clearly, the
Peace Process has already been transformed, for Israelis, into a Terror
Process. (The greatly expanded incidence of anti-Israeli terrorism since
Oslo is unambiguously a matter of record.) Soon, as the territories become
Palestine, the Oslo Process will also become a War Process. Here, deprived
of its essential strategic depth, Israel will become an
increasingly tempting object for aggression by certain enemy states.
In view of what is already known about enemy state nuclearization,
especially in Iran, and about ballistic missile developments in these
states, the War Process could even be ignited against Israel by
unconventional war. The Peace Process also endangers Israel's survival by
laying the foundations for a desertion of the Golan Heights. In the words
of four distinguished Israeli (res.) generals, speaking at a Washington D C
conference on July 17, 1995: "Israel's presence on the Golan Heights
constitutes the optimal strategic balance with Syria and insurance against
a massive Syrian attack. The IDF's proximity to Damascus is also a
guarantee against a Syrian missile launch into Israel's rear. Any change
in this balance would lessen Israel's deterrent against potential Syrian
aggression and jeopardize the quiet and stability that have characterized
the Golan since 1974."
It is with these grave dangers in mind that Feiglin, Sackett and other
heroic Israeli opponents of this so-called Peace Process engaged in civil
disobedience. Although Jerusalem instructed them that Palestinians seek
"autonomy," not real sovereignty, these courageous citizens understood
completely that the difference was entirely linguistic. Recognizing that
victimization by words can set the stage for subsequent victimization by
force, they sought, sometimes desperately, to "stop the machine" while
there was still time. Now, as they are about to face sentencing for trying
to save Israel, time is just about gone. Those Jews who stood by silently
as the Oslo Trojan Horse was brought deep within the city gates may
continue to lap up pastries on the Tel-Aviv beachfront (at least until the
war they were unprepared to stop brings the charade of "peace" to a
catastrophic halt).
To "stop the machine!" The phrase is directly out of Thoreau's classical
explorations of civil disobedience. In his famous essay on the subject,
the American transcendentalist spoke persuasively of such opposition as an
act of "counter friction." Confronted with dreadful harms of the sort now
suffered and anticipated by so many Israelis, harms generated by the Peace
Process, he would urge, as he once did about policy deformations in this
country: "Let your life be a counter-friction to stop the machine. What I
have to do is to see, at any rate, that I do not lend
myself to the wrong which I condemn."
This is precisely what Feiglin, Sackett and thousands of other protestors
sought, not to lend themselves to the insupportable risks of the
Rabin/Peres/Netanyahu agreement with the PLO. Among these wrongs are each
government's legitimization of a terrorist organization and its corollary
unwillingness to punish terrorist crimes. Indeed, not only have Israel and
the Palestinian authority abandoned all pertinent
jurisprudential obligations to seek out and prosecute terrorists, they have
both been releasing known terrorists from their respective jails.
Israel's agreement with the PLO contravenes the binding obligation to
punish acts that are crimes under international law. Known formally as
Nullum crimen sine poena, "No crime without a punishment," this
requirement points unambiguously to the multiple acts of killing and
torture ordered directly by Yasir Arafat over these many years. To not
only ignore this requirement, but to actually legitimize the criminality by
making Arafat a "partner" in the Oslo agreement, is a violation of
Principle I of the Nuremberg Principles. This means that Israel's
citizens who continue to support and sustain the Oslo agreement are
actually in violation of international law (and therefore of Israel's
national law as well, which necessarily incorporates international law),
while those who oppose this agreement within the proper bounds of civil
disobedience - as did Feiglin and Sackett - are actually in support of both
forms of law.
These informed views of law and civil disobedience in Israel, however
counterintuitive or disturbing they may seem, warrant a much broader public
understanding. Now embarked upon policies that threaten Israel's very
existence while they simultaneously undermine authoritative expectations of
justice, the Netanyahu government should (if Israel's
citizens recall Jewish law and the obligations of civil disobedience) fully
expect to be confronted with mounting protests. If not so confronted
(which is what I would expect from a nation that is now patently
self-loathing and devoid of all dignity) citizens of that beleaguered state
will approve their own national dismemberment and disappearance.
International law, which is based upon a variety of higher law foundations,
including Jewish Law, forms part of the law of all nations. This is the
case whether or not the incorporation of international law into national
law is codified, explicitly, as it is in the Supremacy Clause (Article VI)
of the United States Constitution. The government of Israel is bound by
settled norms of international law concerning punishment of
terrorist crimes and physical survival of the state. Where this government
fails to abide by these rules, as is very much the case today, civil
disobedience is not only permissible, it is required.
We began with a look at the Jewish Law bases of higher law and civil
disobedience. Jewish law rests always upon two principles: the overriding
sovereignty of God and the derivative sacredness of the individual person.
Both principles, intertwined and interdependent, underlie the reasoned
argument for civil disobedience in Israel. From the sacredness of the
person, which stems from each individual's resemblance to divinity, flows
the freedom to choose. The failure to exercise this freedom, which is
evident wherever a response to political authority is merely automatic,
represents a betrayal of individual legal responsibility.
Finally, we must be reminded that Jewish law is democratic in the sense
that it belongs to all of the people, a principle reflected in the talmudic
position that each individual can approach God in prayer without priestly
intercessions. Hence, a fundamental goal of law must always be to
encourage initiative, to act purposefully on behalf of improving both state
and society. When this criterion is applied to pertinent instances of
civil disobedience in Israel, it is apparent that the protesting opponents
of the Peace Process, more than any other citizens of Israel, are acting
according to law.
The People of Israel should take heed. It is not the heroic Jews like
Feiglin and Sacket who should now be jailed, but rather those apparatchiks
and Court Jews with little learning who arise with unimaginable cowardice
in every generation. It is these Jews, not the Feiglins and the Sacketts,
who hasten our destruction.
Shabbat Shalom,
Louis Rene Beres
West Lafayette, Indiana
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LOUIS RENE BERES (Ph.D., Princeton, 1971) is Professor of Political Science
and International Law at Purdue University. He is the author of many books
and articles dealing with Israeli security matters
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