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December 22, 2014 / 30 Kislev, 5775
 
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Posts Tagged ‘Jewish Law’

In Honor Of G-d’s People (Continued)

Thursday, April 8th, 2010

I arrived in Paris on a Monday and over 1,500 people were waiting. I do not speak French, but no matter, for there is a language that transcends all difficulties and barriers, and that is the language of our people – the language of the heart based on our timeless truths: “Words that emanate from the heart must enter into another’s heart,” and that is at the root of our “Jewish Law of Gravity.” It is a law that never fails and its veracity has been proven in every generation, in every century. I saw it unfold a thousand and one times … Most recently, I witnessed it in France, Hungary and Israel, and I never cease marveling at its power.

Nowadays, our program is composed of two segments. As many of you may know, this past year, Hashem granted me the privilege of making a film that relates the story of my experiences in Bergen-Belsen. Actually, it was my granddaughter, Shaindy, who prompted me to make the film. “Bubba,” she called one day from Jerusalem where her husband is learning Torah while she teaches and raises her young family. “You must record those stories that you told us. You must do this!” she said insistently.

My initial reaction was to dismiss the idea….” One of these days, sheifele,” I answered. But then I remembered how, many moons ago, I made the same suggestion to my own revered holy father, HaRav HaGaon, HaTzaddik Avraham HaLevi Jungreis, zt”l and he too responded with the very same words. “B’Ezrat Hashem…one of these days.” But there was always something that delayed the project until it was too late. “One of these days” never came, and to this day, I regret not being more insistent and not pressuring more.

As Shaindy spoke, it hit me that not too many who lived through that Gehennom are still here to tell the story, and even those who are here, are sadly, mostly infirm and incapable of relating the story. So it was that the film was born. We found a producer, a ba’al teshuvah, who had the unique combination of professional expertise and sensitivity to Torah values. He reserved two days of studio time telling me that that was the minimum needed and asked me to prepare a script.

But those of you who know me and have heard me speak know that I never speak from a script. I just wouldn’t know how to do that. My preparations consist of a small prayer written by King David: “Hashem – Almighty G-d, sefasai tiftach – Open my lips so that I may proclaim Your praise” (Psalm 51).

No, I had no script, but the script was engraved on my heart, and that is something that no teleprompter can record – I started to speak to the camera, and as I spoke, a flood of memories rushed into my mind. Those memories took me back to those torturous years and my voice trembled with tears. During a small break to allow the cameraman to adjust the lighting, my friend Barbara said, “You can’t cry so much. It’s much too heavy.”

But how could I tell my story…how could I speak without tears?

Instead of two days, the entire process took two hours, but to achieve maximum impact, we cut it to 22 minutes. While many films have been made on the Holocaust, I believe that this film is unique in that it portrays the Kiddush Hashem – Sanctification of G-d’s Name – the indomitable faith of our people in that abyss of evil…. So appropriately, we called the film Triumph of the Spirit.

Most Holocaust films depict the savage brutality, the inhumanity of man who, despite his 20th century education and veneer of sophistication, descended lower than the beasts. Our film, however, focuses on the awesome sanctity, on the Torah legacy and destiny of the Jewish people that was more powerful than the flames of the crematoria.

Most Holocaust films leave you depressed and angry, but our film imbues you with a mission – a determination to follow in the footsteps of the zeides and the bubbas who are no more. The film has been made with sub-titles in several languages – French and Hebrew being just two of them.

Thus, it happened that before I spoke in France and Eretz Yisrael, people viewed the film, and as if by magic, their hearts opened and their neshamos listened. By the time I concluded, the audience was ready to embrace Torah and mitzvos with more fervor and commitment.

In France, as well as in Israel, the crowds were dense, and after the program, people came seeking brachos, guidance, some chizuk – strength to face the many nisyonos – trials and tribulations of our generation.

I stayed far into the night and thanked Hashem for the zechus He granted me to speak to His children – Am Yisrael.

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

Wednesday, November 26th, 2008

In the Jewish tradition, the principle of a Higher Law is not only well established; it is the very foundation of all legal order. Whenever the law of the state stands in marked contrast to this principle, the secular law is rendered altogether null and void. In certain circumstances, such contrast positively mandates opposition to the law of the state. Here, what is generally known, as “civil disobedience” is not only lawful, but also genuinely law enforcing.

Exactly what sorts of circumstances are we describing? Above all, they are circumstances that place at existential risk the very survival of the state. In such circumstances, which were in fact already identified in the widely disseminated Halachic Opinion issued in 1995 by prominent rabbis in Eretz Yisrael − Concerning Territorial Compromise, the matter is one of Pikuach Nefesh. Hence, it demands certain appropriate forms of resistance. Israel cannot endure meaningfully without Judea and Samaria. As the Torah is a “Toras Chaim,” a Torah of life, Jewish authorities in the State of Israel are “forbidden, under any circumstance,” to transfer Jewish land to 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.” And in a more recent essay, the same writer observed that the actual hatred for Judaism of a very large portion of Israeli intellectuals, including those who now create a theoretical legitimacy for current government policies, has become a hatred of Zionism.

Halkin’s fears were well founded. They remain well founded today. Under the disastrous Rabin/Peres governments, Israel began to be transformed not only into a polity that was more and more detached from cultural Judaism, but also into one that positively undermined both Judaism and Zionism. That transformation now continues full-speed-ahead under a legally fallen government.

The right of sovereignty, in all states, rests upon an assurance of protection. Where a state can no longer offer such elementary assurance − indeed, where it deliberately surrenders such a basic promise − the critical rationale of citizen obligation must also disappear. “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.”

Hobbes knew what he was talking about. 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 transformed into part of “Palestine,” the peace process will also once again become a war process. Here, finally deprived of its essential strategic depth, Israel will become an irresistible 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 government 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 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 honored Nobel laureate Yasir Arafat), is an openly egregious violation of Principle I of the Nuremberg Principles. 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 broader public understanding. Now embarked upon policies that threaten Israel’s very existence while they simultaneously undermine authoritative expectations of justice, the Jerusalem 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. 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.

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 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.

Copyright © The Jewish Press, November 28, 2008. 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.

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

Wednesday, October 10th, 2007

Can the Olmert government protect Israel’s citizens? After last summer’s Lebanon war, this is hardly a serious question. Further, following Iran’s continuing defiance of the international community in its illegal nuclearization, a defiance carried out with literal impunity, the consequences of Israel’s national impotence could soon be genuinely existential. Let us be candid. This is the case even before Mr. Olmert proceeds with his plan to give up the Golan.

Credo quia absurdum. Prime Minister Olmert now further endangers Israel’s survival by his openly planned acquiescence to Syrian deceptions on the Golan Heights. Not only a 1967 report by the American Joint Chiefs, but also the authoritative words of four distinguished Israeli (res.) generals, challenge the Prime Minister’s mistaken judgment: “Israel’s presence on the Golan Heights constitutes the optimal strategic balance with Syria and insurance against a massive Syrian attack,” said these Israeli strategists in 1995. “The IDF’s proximity to Damascus is also a guarantee against a Syrian missile launch into Israel’s rear. Any change in this balance would lessen Israel’s deterrent against potential Syrian aggression and jeopardize the quiet and stability that have characterized the Golan since 1974.”1

It is with precisely these grave dangers in mind that Israeli opponents of Olmert’s intended Golan surrenders will soon engage in purposeful civil disobedience. Recognizing that victimization by words2 can set the stage for subsequent victimization by force, they shall seek, perhaps desperately, to “stop the machine.” From the standpoints of both law and national survival, they will certainly be acting correctly.

To “stop the machine” is a metaphoric phrase taken directly from Henry David Thoreau’s classical explorations of civil disobedience. In his oft-quoted essay on the subject, the American transcendentalist spoke persuasively of essential opposition as an act of “counter friction.” Confronted with dreadful harms of the sort suffered and anticipated by so many Israelis, harms generated by years of now-President Peres’ “Peace Process,” and soon-to-be magnified by Prime Minister Olmert’s additional surrenders, 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 citizen protestors must now seek, not to lend themselves any longer to the unforgivable wrongs of the Rabin/Peres/Netanyahu/Barak/Sharon/Olmert agreements with the PLO/PA, or to any future Golan surrender to Syria. Among these many wrongs are assorted Israeli government legitimizations of Arab terrorism, and also corollary Israeli government refusals to punish egregious terrorist crimes. Israel and the fractionated Palestinian authority have not only effectively abandoned all pertinent jurisprudential obligations to seek out and prosecute Arab terrorists, they still cooperate in releasing killers of Israeli citizens from Israeli and Arab jails. Certainly Prime Minister Olmert and President Peres will not be willing to put an end to such incontestable violations of both Jewish Law and international law. Why should they? Crouched comfortably in the bruising darkness, their truth is the delusion of Plato’s cave. They see not what is happening right before their eyes, but only the shadows of what is real.

Let us return to germane matters of law. Israel’s agreements with the 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 “elected” Palestinian authorities over many years. To not only ignore this peremptory requirement, but also to further legitimize the wrongs by making these criminals a “partner for peace” has been a clear violation of Principle I of the binding Nuremberg Principles.3

Israel’s citizens, who now support and sustain the discredited Oslo/Road Map agreements, and/or Prime Minister Olmert’s intended Golan surrenders, are acting (whether expressly or tacitly) in stark violation of fundamental international law. They are also acting, of course, in violation of Israel’s national law and longstanding Jewish Law. At the same time, all those who would disobey both these suicidal agreements with terrorist gangs, and the still-intended Golan surrenders would be acting in full support of all three interrelated forms of law.

My readers in The Jewish Press will understand that these informed views of law and civil disobedience in Israel deserve a wide hearing. Now embarked upon surrender policies that threaten Israel’s very existence while they simultaneously undermine authoritative expectations of justice, the Olmert government should reasonably expect to be confronted with mounting protests. Were it not so confronted, citizens of Israel would have already consented to their own national dismemberment. 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 would fail to abide by these rules, as is very much the case today, civil disobedience is not only permissible – it is required.

Jewish Law rests always upon two fundamental 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.4 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 whenever a response to political authority is merely automatic, represents a betrayal of individual legal responsibility.5

We Jews must be reminded that Jewish law is democratic in the sense that it belongs to all of the people. This is a principle expressed in the Talmudic position that each individual can approach G-d in prayer without priestly intercessions. Hence, a primary goal of law must always be to encourage initiative, to act purposefully on behalf of improving both state and society. When this criterion is applied to impending instances of civil disobedience in Israel, it should be apparent that the protesting opponents of Olmert’s intended Golan surrender, more than any other citizens of Israel, will be acting according to the true interests of law, justice and peace. Let them now stand strong against an Israeli public authority that indefatigably patronizes itself.

Copyright ©, the Jewish Press, October 12, 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.

* * * * *

1. Statement (1995) prepared by Major General (res.) Yehoshua Sagui; Admiral (res.) Micha Ram; Brigadier General (res.) David Hagoel; and Brigadier General (res.) Aharon Levran.

2. The Talmud instructs that victimizing people with words is a serious transgression (Talmud, Tractate Bava Metzia 58b).

3. 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.”

4. 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).

5. 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.

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

Wednesday, September 19th, 2007

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.

On ‘Disengagement’ And Disobedience (Second Of Two Parts)

Wednesday, March 9th, 2005

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.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/on-disengagement-and-disobedience-second-of-two-parts/2005/03/09/

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