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Opposing Olmert On Golan Surrender: Civil Disobedience As A Legal Imperative (First of Two Parts)


Amid the growing chaos of internal Palestinian violence, the manifest error of every Middle East Peace Process should be altogether obvious. Quite predictably, Fatah and Hamas now validate years of informed Jewish opposition to both the original Oslo Agreements and to the equally twisted cartography of a so-called “Road Map.” Nonetheless, in Jerusalem, and even in Washington, the Prime Minister speaks smugly of further territorial surrender, this time of an equally misconceived forfeiture of the Golan Heights to Syria.

Of course, with Shimon Peres as the country’s president, absolutely anything is possible. Credo quia absurdum. “I believe because it is absurd.”

The more things change, the more they remain the same. Once again, citizens of Israel who still have hold on their senses will have no choice but to engage in civil disobedience. This law-enforcing tactic failed to stop former Prime Minister Sharon from forcing Jews to leave Gaza, a grotesque “disengagement” that transformed an energetic area of Israeli greenery, domesticity and promise into a primal battleground of sustained Arab horror. The Sharon-engineered calamity has already lost many Israeli lives to Palestinian terror, and could – in the future – also be a factor in exposing American cities to a “dirty bomb” attack, or even to certain other more lethal forms of nuclear terror. This is the case because since Sharon’s abandonment of the strategic Gaza area – an abandonment that defiled the most rudimentary expectations of Torah and Talmud – Hamas has entered into systematic and durable collaborations with al-Qaeda.

Although current Prime Minister Olmert can be expected to denounce all forms of Jewish civil disobedience, and to be supported in such self-righteous denunciation by a shameless Israeli President who remains unapologetic about Oslo and oblivious to Jewish auto-destruction, civil disobedience does have a long and venerable tradition. Significantly, the roots of this vital tradition in law and philosophy lie plainly in Jewish Law. Before Israel’s public authorities and the Israeli Left (“intellectuals”) combine to condemn Jewish civil disobedience on the Golan as “lawless,” therefore, some informed legal and philosophical background warrants mention.

Israel is unquestionably the Jewish State, one linked irrevocably to basic and immutable tenets of Jewish Law. From its very beginnings, wherever Jews have lived and died on this planet, Jewish law has been viewed authoritatively as a manifest expression of G-d’s will. Biblically, the law is referred to and understood as the “word of G-d.” The G-d of Israel is the sole authentic legislator, and righteousness lies plainly and unassailably in the observance of His law. As for the absence of civilized righteousness, this always places, at recognizable risk, the lives and well being of the individual and the community.

For ancient Israel, law was the revealed will of G-d. All transgressions of this law were consequently offenses against Israel’s G-d. The idea that human legislators might make law independently of G-d’s will, would simply have been incomprehensible. Indeed, as G-d was the only legislator, the sole legislative function of human authorities was to discover the true 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.”[i]

In established Jewish tradition, the principle of a Higher Law is not only well-founded; it has also become the very foundation of our international legal order, and of the legal foundation of the United States of America. Where any “law” of the Jewish State would stand in evident contrast to this principle, it is automatically null and void. In certain circumstances, such contrast mandates opposition to the particular edicts of government. In these circumstances, what is generally known as “civil disobedience” becomes not only lawful, but genuinely law-enforcing.

Moreover, since the writings of Cicero in the first century BCE – and certainly since the seventeenth century scholarship of Hugo Grotius (The Law of War and Peace, 1625) – the ancient Jewish idea of a Higher Law has been binding upon all human individuals and states irrespective of underlying religious principles. Now fully secularized, this idea rests upon the understanding that all human beings have a capacity to reason, and from this generalized and divinely granted capacity derives an obligation to certain timeless, unchanging and universal norms of conduct.

What sorts of civil disobedience circumstances are we describing with reference to present-day Israel? Above all, they are situations that place at existential risk the survival of the Jewish State. In such circumstances, which several years ago were already identified in an Halachic Opinion issued by Prominent Rabbis in Eretz Yisroel Concerning Territorial Compromise,[ii]the matter is one of Pikuach Nefesh. Israel cannot endure strategically without the heartlands of Judea and Samaria, or – as was recognized by the U.S. Joint Chiefs of Staff in a widely cited 1967 report – without the Golan. It follows that as the Torah is indisputably a “Toras Chaim,” a Torah of life, Jewish authorities in the State of Israel are “forbidden, under any circumstance,” to transfer Jewish land to sworn enemy 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.”[iii] In a more recent essay, the same writer observed that the actual hatred for Judaism of a readily identifiable portion of Israeli “intellectuals” (including, by extrapolation, those who now still seek a theoretical legitimacy for Olmert government surrender policies), has become a palpable hatred of Zionism.[iv]

Credo quia absurdum. Halkin’s fears were well founded. Under the Rabin and Peres governments (and, I suppose, even under Ben-Gurion at the beginning), Israel first undertook its visible transformation into a polity that was increasingly detached from cultural Judaism, and that also deeply undermined both Judaism and Zionism. With the subsequent elections of Netanyahu, Barak and Sharon, this transformation was carried even further along. Incomprehensibly, former Prime Ministers Barak and Netanyahu still lack the dignity to disappear quietly from Israeli politics. And with the selection of Shimon Peres as the new President, thousands of “post-Zionist” Israelis are now openly delighted that Israel could continue to be complicit in its own Jewish annihilation. For the most part, university professors, once the primary source of serious thought and meaningful scholarship, are now often at the outer margins of authentic understanding. This is the case not only in Israel, but also across Europe and the United States. The problem of academic “thoughtlessness” (I think, here, of prophetic warnings by both Hannah Arendt and Jose Ortega y’Gasset) is likely more evident in the humanities and the social sciences than in the more technical and scientific fields, and is largely attributable to the transformation of post-graduate education into an essentially vocational enterprise. In the universities, we basically no longer educate thinkers; we “train professionals.”

But let us return directly to Israel and its international relations. In all states, sovereignty rests securely upon the government’s viable assurance of protection. Where a state can no longer offer such assurance, however – indeed, where it deliberatelysurrenders such assurance – the critical basis of citizen obligation is removed. “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.”

(To be continued)

Copyright ©, The Jewish Press, September14, 2007. All rights reserved.

LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of many books and articles dealing with Israel’s security and international law. He is Strategic and Military Affairs columnist for The Jewish Press.

* * * * *

[i]See Jerusalem Megillah IV, 74d.

[ii]The full text of this Opinion, Daas Torah, was published in the July 20 1995 edition of THE JERUSALEM POST, p. 3.

[iii]See LETTERS TO AN AMERICAN JEWISH FRIEND: A ZIONIST’S POLEMIC (Philadelphia: Jewish Publication Society, 1977), 199-200. For this and the following reference to Halkin I am indebted to Edward Alexander, “Irving Howe and Secular Jewishness: An Elegy”, The Eighteenth Annual Rabbi Louis Feinberg Memorial Lecture in Judaic Studies, Univ. of Cincinnati, April 6, 1995.

[iv]See Halkin’s “Israel Against Itself”, COMMENTARY 98 (November 1994).

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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