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On “Disengagement,” Civil Disobedience, And IDF Military Refusals (First of Two Parts)


Beres-Louis-Rene

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A dear friend of mine in Israel, a hard-fighting veteran of all too many wars, was asked to summarize his view of the “disengagement.”

“What,” I inquired, “do you think of the forcible deportation of Jews from Jewish lands in Gaza and parts of Samaria by the government in Jerusalem?”

Never one to mince words, here is his succinct reply: “The entire scheme, described euphemistically as ‘disengagement,’ is irrational, fatally dangerous, unjust, immoral, illegal and disgustingly inhumane. It is being forced upon Israel by blatantly undemocratic means, and its underlying cause is auto-anti-Semitism.”

The Sharon Government’s edict to evict Jews is a clear expression of Jewish self-hatred, and it is not only the right of each individual Israeli soldier to reject this edict, but his sacred duty to do so.

There is more. The axis of conflict and disagreement between one group of Jews and another here is not at all straightforward. It is not the IDF against the “settlers”. The existential danger of territorial surrender is now facing each and every Jew in Israel. Some of the very best soldiers in the IDF are “settlers” themselves, and all of the “settlers” have unassailably deep ties to the Jewish army.

Will military refusals to participate in the expulsion of Jews cause the IDF to weaken or even to disintegrate?

“On the contrary,” writes Moshe Feiglin of Manhigut Yehudit. “It will strengthen the IDF morally and establish its right of existence. Real conscientious refusal will not lead to a situation in which everyone does as he likes. The soldiers who are refusing are the outstanding ones who wish to serve and make sacrifices for the nation and the country.”

Moshe Feiglin is correct, of course, but the already compelling Jewish argument against complicity in Jewish deportations and the associated argument for civil disobedience can also be grounded in fundamental international law. Significantly, international law is itself drawn from the idea of a Higher Law – an idea that was born in ancient Israel. The right to civil disobedience is well-established in democratic legal theory. This right can become an outright obligation whenever a particular government’s policies run counter to the codified “Nuremberg Principles of 1946.”

In Claude Lanzmann’s monumental documentary, SHOAH, one of the surviving leaders of the Warsaw Ghetto uprising remarks: “If you could lick my heart, it would poison you.”

Sadly, the time may still come – if Prime Minister Sharon is permitted to continue following a “Road Map” to unilateral surrender – that surviving Israelis will someday express similar sentiments. It is to prevent such an unforgivably ironic repetition of Jewish history that hundreds of thousands of Israelis may soon need to embark upon massive civil disobedience and wide-scale military refusals.

In essence, the “Road Map” to peace in the Middle East now offered by the United States, Russia, the European Community and the United Nations calls for the surrender of territories that are indispensable to Israel’s physical survival as a state. This one-sided piece of cartography would open up the entire country to expanded terrorism (including mega-terrorism involving chemical, biological or even nuclear weapons) and to genocidal wars of aggression launched by one or several enemy states.

It follows that Sharon is assuredly under no obligation to proceed with this contrived agreement, and that Israel’s citizens are under a distinct obligation to get Sharon to abandon the “Road Map.” As Thomas Jefferson recognized back in 1793 in his Opinion On The French Treaties: “The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations.”

In the fashion of the earlier Oslo Agreements, the “Road Map” also contravenes the binding legal obligation to punish acts that are crimes under international law. Known formally as nullem crimen sine poena, “No crime without a punishment,” this requirement points clearly to the multiple acts of terrorism ordered by various Palestinian organizations and “authorities” over many years.

To not only ignore this requirement, but to actually legitimize the criminality by making the current Palestinian Authority a “partner” in the “Road Map,” continues to represent an indisputable violation of Principle I of the Nuremberg Principles.

It is important that these informed views of civil disobedience, military refusals and international law immediately become more widely understood. The Israeli government’s present policies will destroy “certain unalienable rights” for all Israelis. These are natural rights that belong fully to all peoples, not only to Americans. In return, the Sharon government should fully expect to be confronted with mounting acts of civil disobedience and principled refusals to carry out eviction edicts.

If they do not respond thus, the citizens of Israel would be consenting like sheep to incremental dismemberment and eventual annihilation.

In the years before the Civil War, thousands of Americans organized an Underground Railroad to help fleeing slaves. At that time, those who participated in this movement were judged lawbreakers by the Federal government, and were imprisoned under the Fugitive Slave Act.

Today, it is generally recognized that the true lawbreakers of the period were those who sustained the system of slavery, and that every individual act to oppose this system was genuinely law-enforcing. Similar patterns of recognition should now emerge in regard to the critical anti-disengagement movement in Israel.

Throughout the centuries, distinguished legal theorists (e.g., Bodin, Hobbes, Leibniz) have understood that security is always the first obligation of the state. Where that state can no longer provide security, it can no longer expect obedience. And where the state actively avoids the provision of security, as is the case today in Israel, citizens have an obligation to resist state policies.

In fact, the Sharon government’s idea of “peace” could lead even to another Jewish genocide. Therefore, this obligation could arguably go beyond Israel’s still gentle forms of civil disobedience and military refusals to more vigorous expressions of lawful opposition.

International law, which is based upon a variety of Higher Law foundations, forms part of the law of all nations, including that of the State of Israel. 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 authoritative rules of international law concerning punishment of terrorist crimes, the prevention of genocide, and physical survival of the state. Where this government fails to abide by these rules, civil disobedience and purposeful military refusals are not only permissible – they are required.

“If you could lick my heart, it would poison you.” We must never again hear such a tormented remark from the victim of yet another Jewish tragedy – this time from the self-inflicted disappearance of Israel in “compliance” with the patently twisted “Road Map.” Let us hope that our brothers and sisters in the Jewish state have learned something very important about collective Jewish survival from the Shoah.

Copyright (c) The Jewish Press, 2005. All rights reserved.

LOUIS RENE BERES (Ph.D. Princeton, International Law) 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 frequently on jurisprudential and strategic issues in Israel and in the United States.

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About the Author: Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of Political Science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.


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