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August 1, 2015 / 16 Av, 5775
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Posts Tagged ‘Jewish Law’

Standing Idly By

Sunday, December 4th, 2011

Presumably, almost all the readers of this publication are Orthodox Jews – those that pride themselves on serving G-d through fulfilling His commandments. Keeping in mind the rabbinical edict, “A mitzvah that comes your way—don’t miss it!” (Rashi, Bavli Megillah 6b), it would behoove the readers to know that an oft-missed mitzvah has come their way.

The Torah warns us twelve times to have special consideration towards the orphan and the widow – yatom v’almanah. The first such commandment appears in Shemot 22,21: “Any widow or orphan you are not to afflict.” It is followed directly by a description of the consequences to society in its entirety if there is affliction. It is frightening to print in a newspaper column; readers will have to refer to the original.

Rashi clarifies that in essence we are warned not to cause suffering to any individual: “This is the law for all people, here the text spoke in accordance with present reality, for they [widows and orphans] are weak of strength and it is common to find them afflicted.” Or as the Soncino Edition (J.H. Hertz, 1962) commentary states: “Who are bereft of their human protector and destitute of the physical force to defend their rights.” Ibn Ezra adds: “For all who sees one who afflicts an orphan or widow and does not come to their aid, he is also considered to be an afflictor.” Rav Shimshon Rafael Hirsch enlightens us further: “The widow has lost her mouth in her husband, has nobody to speak for her any longer. The orphan…[suffers from the] misuse his weakness and lack of protection…even rich widows and orphans are easier to be taken advantage of and misused, than other people… in society, amongst people…they are bereft of anybody to stand up for them, to protect them, guide and advise them, and so are exposed to be wronged and humiliated. Hence, in their case the Torah addresses primarily the members of the community in the plural ‘thou shalt not misuse their weakness or make them feel the weakness of their position.'”

Rashi related the mitzvah to reality. The reality today is that there is another individual who has lost her support, has suffered the abuse of her rights and who has no man to serve as her pillar of support. That is the modern-day agunah—the victim of Get-refusal. In fact, the very man upon whom the agunah originally depended to honor her and act as her protector turns against her and abuses his power over her.

There is one agunah today in the United States who is both orphaned of her father and whose husband is refusing (as of the time of this printing) to give her a get. This is Tamar Epstein. Lest one think that this is a problem solely for the rabbis and not for the layperson — the rabbis have already done their utmost to convince Mr. Aharon Friedman to give Ms. Epstein a get, to no avail. In fact not only did the Beth Din of the Union of Orthodox Rabbis of the United States and Canada issue an Declaration of Contempt (ktav seiruv – see page F1 in this week’s newspaper) against Mr. Friedman, the rabbinic judges included a plea directed to all: “Any person who has the ability or opportunity to influence him to free Tamar Epstein from the chains of her agunah status is obligated to do so and doing so will indeed be the fulfillment of a great mitzvah.”

Each and every reader of these words is now aware of a biblical commandment (mitzvah d’oraita) and a rabbinic-ordained commandment (mitzvah d’rabbanan) to help Tamar Epstein achieve her get. Moreover, most readers recite every Tuesday at the close of the morning prayers (shacharit): “Defend the poor and fatherless; do justice to the afflicted and needy. Deliver the poor and needy…” Someone has to help Tamar Epstein find relief from the affliction she is suffering. Will you heed the words you yourself recite in prayer? Will you take the mitzvah of helping Tamar to heart? How can you help deliver the get to her hand? It is incumbent upon each and every one in the Orthodox community to consider how he or she can help. It is not easy for readers sitting in the comfort of their own home to actually take action. For that reason an additional commandment was necessary to spell out that one may not stand by when a fellow Jew is in a position of need. It is human nature to need that extra push in order to have the will to help.  Now that you know, you cannot stand idly by.

Editor’s Note:  A protest rally against Mr. Aharon Friedman’s recalcitrance has been organized by ORA and will be held on Sunday, December 4th, 1 PM at 1131 University Blvd., Silver Spring, Md.

Rachel Levmore, Ph.D. in Jewish Law from Bar Ilan University, is a rabbinical court advocate; coordinator of the Agunah and Get-Refusal Prevention Project of the Council of Young Israel Rabbis in Israel and the Jewish Agency; and author of “Min’ee Einayich Medim’a” on prenuptial agreements for the prevention of get-refusal.

 

Hasbara In The Rubble

Tuesday, June 7th, 2011

Berachah – blessing – says the Gemara, is found only in things that remain unwatched and out of sight. Hasbara – the way Israel explains itself to the world – might be in better shape taking a cue from that Gemara.

Every few years marketing pundits come up with a new strategy for hasbara, claiming the old one was all wrong and the new one will work better. Perhaps the most infamous sea change in hasbara took place a few years ago, when marketers decided Israel should brand itself as a “fun” place and undo all the old stodgy stereotypes. We know how well that worked.

It is unfair to blame Israel. Its job is to fight on the military front, and we daveneach day for the success of its soldiers. The second front, that of public opinion, should be fought by Jews around the world. There is only so much a small country with limited resources can do. (Friends in the Foreign Ministry like to remind me that the yearly hasbara budget for the ministry is less than the advertising budget of Israel’s leading yogurt producer.)

Yet the most effective tools sometimes are the ones that remain hidden from sight, never having been promoted as hasbara instruments. A few weeks ago I witnessed one of these in action.

Around this time each year, dozens of cities host “Honor Israel” nights in which Christian friends of Israel gather to show their support for the Jewish state and the Jewish people. As a staffer at the Simon Wiesenthal Center, I was invited to Grand Rapids, Michigan to update such a gathering about BDS – the boycott, divestment and sanctions strategy that Palestinians have been counting on to turn public opinion away from Israel. When I arrived, I learned that someone who happened to be nearby had been added to the program.

Major Liron Shapira is a career IDF officer. A kibbutznik, he served in a combat force and then decided he was ready for new challenges. He switched to the IDF search-and-rescue (SAR) unit. When the earthquake struck Haiti in January 2010, Liron deployed with the IDF team that was one of the most vaunted success stories of the international relief effort.

Liron was not in the U.S. on a hasbara assignment for the IDF. He was the partnering with a U.S. military unit he held in high esteem. In several ways he struck a different figure from the type of Israeli spokespeople Americans often encounter. He was soft-spoken, tentative rather than certain, and strikingly humble. No airs or pretensions at all. All of this made his effort devastatingly effective.

His audio-visual presentation told the story of the entire operation as seen by the SAR people, as opposed to the medical personnel who took over once survivors were located and transported. Preserving footage of some of the most difficult extractions from the rubble demonstrated the competence of the Israeli team, but small vignettes he included offered the greatest insight into the Israeli soul.

He showed pictures of backslapping between members of different SAR teams, but also pointed out the differences between them. On one occasion, cutting through concrete was hampered by embedded iron rods. His platoon did not have the instrument it needed to reach a trapped survivor, but he knew of several others that did. He only went to groups he knew possessed at least two of the tools. Nonetheless, each of them turned down his request to borrow the tool.

Liron detected a casualness about human life even among these lifesavers – with one exception. The U.S. team shared the same regard for human life, he said. Liron’s voice expressed genuine anguish and childlike innocence in relating this and similar stories. How could people not respond to the opportunity to save a life?

Even in dealing with death, the different groups displayed their prejudices. He showed pictures of large buildings reduced to piles of rubble, with bodies openly lying in the debris days after the quake. No one stopped to cover them until the Israelis chanced upon them. (A Midrash praises King David for returning to the battlefield the day after victory for the single purpose of burying the enemy dead.)

In Elul, We All Need To Be Kids Of Courage

Wednesday, September 1st, 2010

The one hundred and thirty children and young adults share two things. They are all Jewish, and they all contend daily with serious and debilitating illness. Many of them have done so all of their lives. You would think spending time with them would provide the ultimate mussar ride for Elul, an in-your-face confrontation with your own mortality, and the need to be grateful to God for life itself and the parts of it we take for granted.

You might think so, but you would be wrong. It’s not the ultimate ride at all. It may be the teeter-totter compared to the Montezuma’s Revenge of lessons you can garner from these kids.

In the three years he was supposed to be sitting in classrooms at Cardozo Law School, my son Ari – together with some valiant and dedicated partners – built up Kids of Courage, gradually offering larger and more exciting programs for young people who face challenges you don’t want to know about. They include the Jewish genetic diseases, as well as the alphabet soup of development gone awry – CP, MD, CR, etc. And of course, various cancers. Some conditions are so rare they have no names and no medical literature.

Armies are never better than their supply lines. When Kids of Courage moves, two lines move out with them, offering complex medical as well as logistical support. The sight of over a hundred kids, many in wheelchairs hooked up to elaborate apparatus, but all smothered with attention and love by their volunteer counselors (everyone – with the sole exception of a part-time secretary – in Kids of Courage is a volunteer) overwhelms the adults who meet up with them.

An entire continental jet couldn’t contain them all on the recent flight from Newark to Los Angeles that launched their expedition to the West Coast. Illusionist David Blaine turned up for the ride, and entertained en route. Nothing thereafter could curb their enthusiasm, or limit the Kiddush Hashem they made. Katie Couric sent a video crew, and CBS will be doing a segment on them. The Major League Baseball Network will be running clips about them for two weeks, taken from their appearance at an Angels game.

Returning from that game, the kids were taken, unannounced, to the block of Mann’s (Grauman’s) Chinese Theater where twelve Lamborghinis pulled in behind the buses, and their owners spent three hours hurtling them down Hollywood Boulevard. Tourists, expecting to be entertained by the over-the-top atmosphere of the Hollywood Walk of Fame, were instead enthralled by the sight of three hundred young people, led by identifiably frum counselors, singing and gyrating with a joy that has nothing to do with what is usually celebrated in LaLaLand. They stopped to watch and to photograph, as did the tourist buses. So did a media pool, resulting in clips of the event appearing on television stations across the country.

The Lamborghini owners were so impressed that when their tour of duty ended, they followed the buses to a Beverly Hills home for a barbecue, where Lakers legend AC Green presented “Oscars” to the kids, making each one feel like a superstar. (Green was a good choice as a supermensch – he’s clung to deeply religious values, maintaining them even when taunted by teammates.)

This was one day out of nine. Kids of Courage went to Disneyland, Knotts, Universal, a water park, Venice Beach, and spent a beautiful Shabbos with Shloime Daskal.

Wherever they went, they radiated enthusiasm, forcing it inexorably on those who witnessed it.

Those witnesses could easily have missed the real point. They didn’t see the transition. They couldn’t see that some of the kids were apprehensive on Day One, withdrawn, timid, quiet, and justifiably locked into their own problems and concerns as surely as their malfunctioning bodies held them captive. They couldn’t see that a day or two or three later, the same kids came alive with spirit and confidence. Disneyland didn’t do that. Carefully thought-through chesed, offered lovingly by counselors and staff after much deliberation and planning that was born of much experience, did that. This afforded them an opportunity to be as fully human as anyone else out there, sometimes for the first time in their lives.

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.

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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.

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