In the Jewish tradition, the principle of a Higher Law is not only well established; it is the very foundation of all legal order. Whenever the law of the state stands in marked contrast to this principle, the secular law is rendered altogether null and void. In certain circumstances, such contrast positively mandates opposition to the law of the state. Here, what is generally known, as “civil disobedience” is not only lawful, but also genuinely law enforcing.
Exactly what sorts of circumstances are we describing? Above all, 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 widely disseminated Halachic Opinion issued in 1995 by prominent rabbis in Eretz Yisrael − Concerning Territorial Compromise, the matter is one of Pikuach Nefesh. Hence, it demands certain appropriate forms of resistance. Israel cannot endure meaningfully without 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 well founded. They remain well founded today. Under the disastrous Rabin/Peres governments, Israel began to be transformed not only into a polity that was more and more detached from cultural Judaism, but also into one that positively undermined both Judaism and Zionism. That transformation now continues full-speed-ahead under a legally fallen government.
The right of sovereignty, in all states, rests upon an assurance of protection. Where a state can no longer offer such elementary assurance − indeed, where it deliberately surrenders such a basic promise − the critical rationale of citizen obligation must also disappear. “The obligation of subjects to the sovereign,” said the English philosopher Thomas Hobbes in the 17th century, “is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.”
Hobbes knew what he was talking about. Can the current government of Israel protect its citizens? Clearly, Israelis have already experienced the Oslo and Road Map “peace process” as a terror process. If Judea/Samaria are transformed into part of “Palestine,” the peace process will also once again become a war process. Here, finally deprived of its essential strategic depth, Israel will become an irresistible object for aggression by certain enemy states and their surrogates. In view of what is already known about enemy state nuclearization, and about ballistic missile developments in these states, the war and terror process could even be ignited against Israel by unconventional assaults of various kinds.
It is precisely with these sobering points in mind that Israeli opponents of a self-annihilatory peace process must now prepare to engage in civil disobedience. Although the government still instructs them that a “Two-State Solution” is possible, Palestinian maps certainly suggest otherwise. There, the Arab “Phased Plan” of 1974, spawned in Cairo and unambiguously genocidal, is codified into an open cartography of disappearance for the Jewish State. Surely Israel still faces a distinct machinery of destruction, and it is up to each and every Israeli to “stop the machine” while there is still time.
To “stop the machine.” This aptly phrased metaphor is taken directly from Henry David Thoreau’s classical explorations of civil disobedience. In his famous essay on the subject, the American transcendentalist spoke persuasively of such essential 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 incessant and illusory 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 what Israel’s thousands of protestors shall seek, not to lend themselves to the manifest wrongs of the planned government surrenders. Among these wrongs are the government’s corollary legitimization of a terrorist organization, and its shameful unwillingness to punish terrorist crimes. Indeed, not only are Israel and the so-called Palestinian Authority still abandoning all pertinent jurisprudential obligations to seek out and prosecute terrorists, they are both still releasing known terrorists from their respective jails.
Israel’s pertinent agreements with the PA/Fatah contravene 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 PA officials over many years.
To not only ignore this requirement, but also to actually legitimize the criminality by making Abbas a “partner” (Israel’s first honored Palestinian “partner” was honored Nobel laureate Yasir Arafat), is an openly egregious violation of Principle I of the Nuremberg Principles. This means that Israel’s citizens who now continue to support and sustain the Road Map are in violation of international law (and therefore of Israel’s national law as well, which necessarily incorporates international law), while those who oppose this path to self-destruction within the proper bounds of civil disobedience are 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 broader public understanding. Now embarked upon policies that threaten Israel’s very existence while they simultaneously undermine authoritative expectations of justice, the Jerusalem government should fully expect to be confronted with mounting protests. Were it not so confronted, citizens of Israel would have already consented to their own codified disintegration.
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 explicit, 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 G-d 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.
What are the likely costs of such a betrayal? Above all, as we have already noted, they include increased loss of life and expanded human suffering. Failing to exercise their obligations as free citizens, Israelis who stand by passively as the government proceeds with a terror process/war process are undeniably complicit in the deadly consequences of their betrayal.
Where it is necessary, civil disobedience in Israel can save lives. This path does display the highest imperatives of free citizens in a free society. To the extent that it can stop and even reverse the Road Map, it can reduce the number of Israelis who would die or be maimed at the hands of Arab terrorists and also those who would perish as a result of newly probable aggressions by certain Arab/Islamic states. There is, then, a potentially concrete benefit to civil disobedience in Israel. This is by no means a merely abstract matter of theory and jurisprudence. It is, rather, a distinctly flesh and blood matter of national self-defense and survival.
In utilitarian terms, we are speaking of calculations that would compare the two essential options − civil disobedience vs. no civil disobedience − according to expected costs and benefits. Here it should be apparent to all that the Road Map, which represents a proper-sounding exchange of critical Israeli lands for unsupportable diplomatic promises (Land For Nothing), offers absolutely no benefits and altogether unsustainable costs. The calculation should be easy enough to compute.
It is true, of course, that certain acts of civil disobedience could represent technical infractions under Israeli statutes or Basic Law, but such infractions are necessary in order to support vastly more important principles of Israeli law and Jewish justice. In the United States, a traditional common law defense known as “necessity” (which has also been incorporated into certain criminal codes) permits conduct that would otherwise constitute an offense if the accused believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.
Transported to the Israeli context, where the greater public and private injury occasioned by the Road Map might include terrorism, war crimes, crimes against peace, crimes against humanity and genocide, a necessity-type defense could be appropriate and compelling. This is the case even if Israeli law recognizes no clear form of “necessity” because this law must recognize the higher-law principle from which the necessity defense derives. Indeed, insofar as the origins of the higher-law principle lie in ancient Jewish law, the argument for civil disobedience in Israel based upon some notion of “necessity” is especially persuasive.
Copyright © The Jewish Press, November 28, 2008. All rights reserved
(To be continued)
LOUIS RENÉ BERES (Ph.D. Princeton, 1971) is the author of many books and articles dealing with international law and Israeli security matters. Strategic and Military Affairs analyst for THE JEWISH PRESS, he lectures and publishes widely on terrorism, counterterrorism, nuclear strategy and nuclear war.