Can the Sharon government protect Israel’s citizens? Clearly, “disengagement” will open the door widely to “Palestine.” In consequence, once deprived of its remaining strategic depth, Israel will become an irresistibly tempting object for aggression by certain enemy states. In view of what is already known about enemy state nuclearization, and about ballistic missile developments in these states – especially Iran, Syria and Egypt – multi-state aggression could even come to Israel as an unconventional war. Here the predictable end result of “disengagement” would come in the form of chemical, biological and/or nuclear attack.
It is with these grave dangers in mind that Israeli opponents of Sharon’s “disengagement” will soon undertake civil and military disobedience. Recognizing that victimization by words can set the stage for subsequent victimization by force, they shall soon seek, perhaps desperately, to “stop the machine” while there is still time. Will they be acting correctly?
To “stop the machine!” This telling phrase is taken directly from 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 Oslo/”Road Map” Peace Process and soon-to-be magnified by Sharon’s “disengagement,” Thoreau 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 Israel’s protestors MUST now seek, not to lend themselves to the insupportable risks of the Rabin/Peres/Netanyahu/ Barak/Sharon agreements with the PLO. Among these wrongs are the Israeli government’s sustained legitimization of a terrorist organization and its corollary unwillingness or incapacity to adequately punish terrorist crimes. At this very moment, for example, the Sharon government is, once again, freeing a number of Arab terrorists and is offering amnesties to other terrorists not yet captured.
The underlying rationale of such illegal behavior is, ironically, a cessation of Palestinian terror. Naturally, the net effect will be exactly the opposite, not only because of the release and revitalization of many criminals, but also because this action may accelerate the “Peace Process,” and thereby the creation of “Palestine.” Once a Palestinian state is actually born, it will become a permanent staging area for new waves of anti-Israel and anti-American terror.
Israel’s agreements with the Palestinian Authority/PLO 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 Palestinian leaders over these many years of barbarous Arab terror. To not only ignore this requirement, but to legitimize the criminality by making Arafat successor Mahmoud Abbas a “partner” in the Oslo/”Road Map” agreements, is a clear violation of the Nuremberg Principles.
The meaning is manifest. Israel’s citizens who now support and sustain the “disengagement” policies are in violation of international law (and therefore of Israel’s national law as well, which necessarily incorporates international law), while those who oppose these policies within the proper bounds of civil disobedience and military resistance are acting in support of both forms of law.
These informed views of law and civil disobedience in Israel, however 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 Sharon government should fully expect to be confronted with mounting protests and with correlative military refusals. Were it not so confronted, citizens of that beleaguered state would have already consented to their own national dismemberment. As even David Ben-Gurion understood, they have no right to give such consent – none at all.
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 and military 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.
For Jews, our human freedom cannot be properly detached from our human reason. The particular relevance of reason to judgment – including legal judgment – was altogether central in ancient Israel. Indeed, reason is distinctly accommodated within the Jewish concept of revealed law. In essence, the Jewish idea of law offers a transcending order revealed by the Divine word as interpreted by human reason. Consider Ecclesiastes (32.23; 37.16; 13-14): “Let reason go before every enterprise and counsel before any action….And let the counsel of thine own heart stand….For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in an high tower….” From this unassailable Jewish standpoint, it should not be difficult to determine what reason suggests to us about “disengagement.”
Finally, we must also 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 G-d in prayer without priestly intercessions. Hence, a fundamental goal of law must always be to encourage initiative, to act meaningfully on behalf of improving both state and society. When this criterion is applied to impending instances of civil disobedience and military refusals in Israel, it should be apparent that the protesting opponents of Sharon’s “disengagement” – so long as their opposition is measured and responsible – will be acting according to law.
LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of many books and articles dealing with Israel’s security. His writings on international law appear regularly in more than two dozen major law journals, and are well-known in Israel’s academic, political, military and intelligence communities. Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.