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On IDF Refusals To Follow Orders: The Interlocking Perspectives Of National Law, International Law And Jewish Law (Part Two of Three)


Beres-Louis-Rene

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 soon transformed into “Palestine,” the peace process will once again become a war and terror process. Here, finally deprived of its essential strategic depth, Israel will become an increasingly tempting 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 Olmert 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 hundreds of 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 Yassir Arafat), is an especially egregious violation of Principle I of the Nuremberg Principles. (According to Principle I: “Any person who commits an act which constitutes a crime under international law is responsible therefore and is liable to punishment.”) 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 much broader public understanding. Now embarked upon policies that threaten Israel’s very existence while they simultaneously undermine authoritative expectations of justice, the Olmert 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. (On the importance of the dignity of the person to the Talmudic conception of law, see: S. Belkin, In His Image: The Jewish Philosophy Of Man As Expressed In Rabbinic Tradition, (New York: 1960). 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. (On the human freedom to choose good over evil, see: J.B. Soloveitchik, Thoughts And Visions: The Man Of Law (Hebrew New York: 1944 – 45) p. 725.)

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 Olmert 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.

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 Jewish law must always be to encourage initiative, to act purposefully on behalf of rescuing and improving both state and society. When this criterion is applied to expected instances of civil disobedience in Israel, it is apparent that the protesting opponents of the Road Map, more than any other citizens of Israel, shall be acting according to law.

Copyright © the Jewish Press, September 21, 2007. All Rights reserved.

(To be continued)

LOUIS RENE 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, counter terrorism, nuclear strategy and nuclear war.

About the Author: Louis René Beres (Ph.D., Princeton, 1971) is professor of political science and international law at Purdue University and the author of many books and articles dealing with international relations and strategic studies.


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