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On Quashing Anti-Government Dissent In West Bank Communities: Perspectives Of National Law, International Law And Jewish Law (Part One of Three Parts)


Beres-Louis-Rene

In recent months, Israel’s Minister of Defense Ehud Barak, has issued several administrative expulsion orders. The point of these orders, of course, has been to quash anti-government dissent in various West Bank (Judea/Samaria) Jewish communities. In issuing these orders, the IDF generally works together with ISA or “Shin Bet.” My understanding is that the designated recipients are not always informed as to the precise reason for the orders, nor have they any effective right of appeal. Additionally, and significantly (especially in a Jewish society that claims to be a democracy), the expulsion orders are incontestably the product of an already-fallen government.

Still committed to policies of national auto-destruction, the interim “caretaker” government in Jerusalem – dutifully following the surrender scripts that evolved from Rabin’s original codification of “Oslo” – now invokes the same mantras of IDF military “discipline,” “command” and “loyalty.” Naturally, Israel’s soldiers must normally carry out orders, and must respect proper lines of command authority. But what should be expected of them when matters are abnormal? How normal should it appear to any thinking Jew that Israel’s leaders are still requiring the citizenry to be complicit in national dismemberment? As was already convincingly expressed back in August 2007 by Gary Cooperberg, in his Voice From Hebron: ” a sharp distinction must be made between orders given in an operation of battle with our enemies, and a political order which has nothing to do with defending the nation and which may conflict with moral and ethical standards.”

Gary’s point here is more “moderate” than my own. My position, informed inter alia by the jurisprudential view of international law, is that for several years IDF Jewish eviction orders have been genuinely injurious to Israel’s national survival and also to world security as a whole.

Years ago, when then-Prime Minister Sharon first began to implement his intrinsically-flawed ideas for “disengagement,” a good friend of mine in Israel, a hard-fighting veteran of all-too-many wars, summarized his views of the newest Jewish capitulation as “irrational, fatally dangerous, unjust, immoral, illegal and disgustingly inhumane.” Forced upon Israel by “blatantly undemocratic means,” he continued analytically, its underlying cause is “auto-anti-Semitism.” Ironically, of course, because the association of surrender with Sharon was so out-of-character, the Sharon government’s edict to evict fellow Jews was nonetheless a de facto expression of “auto-anti-Semitism.” It was, therefore, not only the corollary right of each individual Israeli soldier to reject disengagement, but his absolutely sacred duty.

Nothing fundamental has changed. On the contrary, to the extent that disgraced Prime Minister Olmert very consciously coupled his plans for additional territorial surrender on behalf of the “Road Map” with assorted mass freeing of terrorists − and also with extensive arming of one terrorist faction (Fatah) against another (Hamas) − the Jewish soldier’s obligation to resist Israeli self-destruction remains clear and fixed. This legal and Halachic argument is all the more true today, because Fatah and Hamas have both the documented intention and capability to initiate mass-destruction terrorism. In this connection − however correct his intentions − U.S. President-elect Barack Obama will not rescue Israel.

The essence of any government rests upon a credible assurance of protection. By definition, there is always a solemn “pact” that exists between citizens and governments concerning this existential assurance, and right now the Israeli government is manifestly determined to violate its part of the bargain. Understood with particular respect to the imperiled Jewish State in 2008, it must be acknowledged that any IDF military orders that would plausibly undermine Israel’s statehood are inherently lacking in moral and legal authority. These orders must, therefore, be strenuously opposed.

Israel’s soldiers have no right or obligation to follow orders that are prima facie contrary to Jewish survival. Naturally we can’t expect that each soldier will have the right to determine for himself, in each case, whether a particular order falls into this category; but the degree of danger that would accompany further Jewish expulsions from Judea/Samaria, is manifest beyond a reasonable doubt. If we should also consider the very pertinent (and plainly ironic) Nuremberg Judgment and associated Nuremberg Principles, it will become clearer still that the obligation to disobey military orders that are contrary to any democratic state’s survival is generic and universal. This precise obligation has become synonymous with the very meaning of “Nuremberg.” Hence, Israel’s obligations here are binding both according to direct obligation, and also by extrapolation from more general jurisprudence.

When Ariel Sharon first began to implement “disengagement,” Israelis began to inquire: Will military refusals to participate in the expulsion of Jews cause the IDF to weaken or even to disintegrate? “On the contrary,” wrote Moshe Feiglin, “it will strengthen it (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 was correct, of course, but the unambiguously persuasive Jewish argument against complicity in Jewish deportations and hence for certain forms of civil disobedience can also be grounded in fundamental international law. Ultimately, all international law is drawn from the idea of a Higher Law – an idea that was born − of all places − in ancient Israel. The specific right to civil disobedience is well established in all democratic legal theory. Moreover, this right can become an outright obligation whenever a particular government’s policies run counter to the authoritative and codified Nuremberg Principles of 1946.

Let me now address, more specifically, Jewish Law. From its very beginnings, this body of rules and principles has been viewed as an expression of G-d’s will. Biblically, the law is referred to as the “word of G-d,” never of humankind. G-d is the sole authentic legislator, and righteousness lies in observance of His law. 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 G-d. All transgressions of the law were consequently offenses against G-d. The idea that human legislators might make law independently of G-d’s Will, would have been unthinkable. Indeed, as G-d 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.”

Copyright ©, November 21, 2008, The Jewish Press. 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.

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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