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April 24, 2014 / 24 Nisan, 5774
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Posts Tagged ‘law’

Expressing Ourselves Inside And Outside The Walls

Wednesday, October 17th, 2012

Editor’s Note: In our July 13 front-page essay, “Birth of a Leather-Kippah Jew,” Mordecai Bienstock described his personal journey on the path to becoming what he called a “Leather Kippah Jew.” Here he elaborates on that vision.

Two centuries ago Napoleon’s armies swept through Europe, tearing down ghetto walls along their way. A river of Jewish souls flowed out, washed out to sea in the roiling waters of enlightenment and assimilation.

Today we have rebuilt those walls. They stand strong. From the simple brick of Brooklyn and Lakewood to the gold and platinum of Long Island and Northern New Jersey, the new ghetto walls provide not only shelter from the excesses of modern society but also space for us to develop, create, and express our own values.

Life within the walls is a model of modesty, virtue and justice.

But all of us travel, in one way or another, outside of those walls. We vote, we pay taxes, we earn our daily bread. We read the newspapers, travel the buses and drive the highways. We search the Internet.

Some of us find ourselves, entirely by accident, walking alone and late at night outside of the walls’ protection. Others willingly seek the world outside, feeling trapped by the walls around them.

On the other hand, many millions of Jews live entirely outside the walls, with no means of understanding or accessing the wonders within. In a generation, these millions will be entirely lost to the Jewish people.

I do not propose that we change the world within the walls. The opposite is true. I propose that we channel the same zeal and dedication that has invigorated our lives within these walls to shine brightly to the world without, so that it infuses our broader relationships with society.

I do not propose that we reduce the role of Torah in the world. I propose that we expand it, using established Torah models to express our values as citizens and members of society.

Orthodox Judaism it today triply blessed.

First, we have created extraordinary institutions of Torah study and observance. The depth of Torah learning and quality of Torah observance in the frum community is unprecedented on this continent.

Second, we live in a unique period of history in which Orthodox Jews are unusually welcome to participate fully in American society. Orthodox Jews have served as leaders across every avenue of society – including as a vice-presidential candidate and a White House chief of staff.

They hold these positions not because of their religious identity and not despite it, but rather because of the kind of people their religious identity has enabled them to be.

Thus, the second pillar is that, as Rabbi Samson Raphael Hirsch taught, living a life of Torah and mitzvahs can create Jews who are the greatest of citizens; Jews who participate in society at the highest levels.

Third, we live in a period in which Orthodox Jews are free to pursue professions and trades and interests that are particular to their own identities. We can be truly ourselves in all of our pursuits, expressing the wonderful individualistic neshamahs Hashem has granted us through the application of our special natures in the physical world, what the Ba’al Shem Tov and his disciples discovered as the basis for avodah b’gashmiyut.

In other words, we live in a world where one can combine the learning and diligence of the Lithuanian yeshiva with the social consciousness of the German-Jewish tradition and the spiritual intensity of chassidus. We can be Litvish chassidish Yekkes.

We live, as the Chinese curse has it, in interesting times. A technological revolution is increasingly bringing the world outside to us, even as challenging economic conditions are forcing us back out into the world.

We live in danger of discovering one day that our walls are not really built of bricks or stone or precious metals at all; they are only virtual walls. No army will be needed to breach them – only a few clicks on a smart phone or some suddenly insolvent fathers-in-law.

As the walls are threatened, it may perhaps be useful to have at our disposal a more fully developed model for expressing our Torah values as part of society, not only apart from it. That, in my view, is the role of the Leather-Kippah Jew.

The Way It Really Was: George W. Bush Pushed For A Palestinian State

Thursday, October 11th, 2012

Today, conventional wisdom maintains that the George W. Bush administration had been a good friend to Israel and, unlike the Obama administration, had fought mightily against the creation of a Palestinian state. With this “wisdom” in mind, I ask readers to consider the following column of mine that originally appeared in The Jewish Press in August 2007.

The more things change, the more they remain the same. In Washington, the president and his secretary of state [George W. Bush and Condoleezza Rice] have recently reinvigorated their incomprehensible “Road Map/Quartet” call for a Palestinian state. Such a polarized political entity would be manifestly unstable and viscerally anti-American, but our leaders persist in fashioning a Middle East foreign policy that indefatigably patronizes itself.

Don’t these leaders realize that this 23rd Arab state would unhesitatingly allow its territory to become a base of operations for al Qaeda and kindred jihadist groups? Aren’t they at all apprehensive that unconventional weapons fabricated in “Palestine” would eventually find their way not only to Tel Aviv, but also to Washington, Los Angeles and New York? Even a cursory glance at the official maps of the Palestinian National Authority would reveal the futility of any proposed “two state solution.”

On these maps, a cartographic rendering of the 1974 “Phased Plan” codified in Cairo, Israel simply does not exist. Is anyone looking?

President Bush and Secretary Rice would be well advised to consider the valuable insights of Zalman Shoval. Already back on February 14, 2006, in an opinion column for The Jerusalem Post (“Put Palestinian Statehood on Hold”), Israel’s former two-term ambassador to the United States argued unassailably that a Palestinian state remains contrary to “Israel’s supreme interest.” Because of the then-recent Hamas victory in the Palestinian elections, he pointed out, Israel had a timely and unique opportunity to make this clear and compelling. After all, said Ambassador Shoval, “Hamas’s very raison d’etre is the destruction of Israel, replacing it with an Islamic state reaching from the Mediterranean to the Jordan River, and beyond.”

Then, as now, the Palestinian authorities, busily engaged in internecine slaughter whenever they were not firing rockets at Israeli civilians, could make no authentic claims for peace. We still should not reasonably expect Israel to be complicit in its own Palestinian-planned annihilation.

Both legally and factually, the distinguished Israeli diplomat was (and still is) on the mark. In the best of all possible worlds, Shoval’s wisdom would already have been heeded. In the best of all possible worlds, the so-called Quartet – not just the United States – would already have taken seriously its own unambiguous and codified conditions for Palestinian statehood.

But national leaders, lest we forget, are generally politicians, not logicians, and even the reign of Hamas seems to have had little effect on the global momentum for a two-state solution. Lest anyone think that joint U.S.-Israeli support for Fatah against Hamas now represents a more prudent path to a stable and productive Palestinian state, a path that circumvents Hamas terrorism, incontestable facts would suggest otherwise. In essence, Fatah and Hamas are two sides of the same coin. Before anything more positive could emerge from a Fatah-led “Palestine,” a gravedigger would have to wield the forceps.

There are substantial ironies to the present situation. Assorted governments of Israel are hardly blameless. For the most part, from the Oslo Agreements to the present policy expressions of a Middle East “peace process,” the plausibility and legitimacy of a Palestinian state have often been encouraged, more or less, by Jerusalem. From Rabin to Olmert, self-delusion about Palestinian “moderation” has played a large part in sustaining Washington’s foolish mantra about statehood.

For Bush, Rice and Olmert to change course now, however imperative, will be problematic. First, Israel’s narrowly technical legal objections will have absolutely no effect on Palestinian intentions, or even on worldwide sympathies for a Palestinian state. Second, and somewhat less obviously, Israel’s formal legal objections will be countered easily at the technical jurisprudential level.

The first problem with Israel’s perfectly valid denial of the Palestinian “right” to declare a state needs little discussion. As was the case before Hamas’s electoral victory and before the slide of Fatah and Hamas into open warfare, the entire Palestinian side is firmly and irreversibly committed to sovereignty and independence. In this commitment it will not be influenced by anything Israel might offer in the way of objections.

The Supreme Court and Sholom Rubashkin

Thursday, October 4th, 2012

We know we speak for many in our community when we express sadness at the news that the United States Supreme Court on Monday decided not to review the 27-year sentence meted out to former Agriprocessors chief executive Sholom Rubashkin.

At bottom we believe that nothing in the public record concerning Mr. Rubashkin’s crimes can justify a man in his early fifties being sent away to federal prison for more than a quarter of a century.

While we certainly believe that those convicted of crimes should pay a penalty, we believe that from the run up to his trial through this apparently final phase of the judicial process, his case fairly reeked of a sense of injustice: his prosecution was accompanied by an extraordinary level of negative publicity rarely seen in modern judicial proceedings; the list of charges lodged against him, though facially legitimate, was uncommonly inflated in number and degree and, in criminal law parlance, “piled on”; the presiding judge, by any measure, at least raised serious questions of impropriety with her highly unusual ongoing contact with the prosecution team; and the sentence of 27 years stood out among those imposed on others convicted of similar crimes.

In permitting such obvious issues to go unaddressed, the appellate courts failed not only Mr. Rubashkin but also others who may at one time or another find themselves enmeshed in the vagaries of our federal judicial system that do not always account for a possibly compromised trial judge and where formal review procedures are sometimes allowed to trump basic humanity.

We share the comments his lawyer, Nathan Lewin, one of the foremost criminal defense and appellate attorneys of our time, gave to The Jewish Press:

The Supreme Court’s refusal to consider the Rubashkin case – which is the greatest injustice that I have seen in more than 50 years of law practice – was very distressing. But the legal battle is not over. There are, in American legal history, a few famous cases “that will not die.” The Rubashkin case is in that league. The Torah teaches that tzedek does not come easily; it must be pursued. Even at this juncture, there are legal avenues for overturning a fundamentally unfair trial.

Germany Initiating Pro-Circumcision Legislation

Thursday, September 27th, 2012

A spokesman for German Justice Minister Sabine Leutheusser-Schnarrenberger said his office is working on an outline for new legislation that will permit circumcision of minor males after a controversial court decision in the summer that criminalized the rite.

The new law will allow circumcision with some provisos, including that it be carried out with the “most effective pain relief possible,” the spokesman said, according to AFP. Parents must also receive a full explanation about the procedure, which may not be carried out in cases where the child is ill or suffers from hemophilia.

The outline also states that, as a rule, circumcisions are to be conducted by doctors but can also be done on babies younger than six months by someone chosen for their religious credentials. That person must be as skilled at circumcision as a doctor, according to the new bill.

“Circumcision remains permitted in Germany,” the spokesman said, referring to the outlines for the new law.

Chairman of the Committee for Immigration, Absorption and Diaspora, MK Danny Danon, sent a message to German ambassador to Israel Andreas Michaelis, saying: “Germany’s commitment to the Jewish people and the State of Israel has been tested – and I’m glad that Germany passed successfully.”

Ayşe Demir, deputy director of the Turkish community in Germany, also welcomed the new bill. “If circumcision is banned, the practice will go underground and prompt circumcision tourism,” she said in a statement. “We approve of the proposal,” she added.

The president of the Central Council of Jews in Germany, Dieter Graumann, said that the draft met many of the expectations of the Jewish community, Deutsche Welle reported. “For this the justice ministry deserves respect,” he said.

The Frankfurter Allgemeine said the ministry had sought submissions of reactions from interest groups by Oct. 1, ahead of a parliamentary debate.

Israel, ‘Palestine,’ and the Law Of War (First of two parts)

Tuesday, September 25th, 2012

For the moment, at least, a state of Palestine does not exist. Historically, of course, such a country has never existed. Nonetheless, current supporters of Palestinian statehood (sometimes Jews as well as Arabs) have discovered substantial practical benefit in persistently referring to Israel and “Palestine” as if there were some existing legal equivalence between them. Indeed, repeated again and again, ritualistically, as if it were an incantation, such propagandistic usage is already transforming “Palestine” into a jurisprudential fait accompli.

At some point, perhaps sooner than later, Hamas and the Palestinian Authority will be able to agree on the basic boundaries and parameters of an independent Palestine. Though Prime Minister Netanyahu has insisted that any such twenty-third Arab state must immediately be demilitarized, Palestinian leaders will be under no actual legal obligation to comply. This is the case even if they should initially agree to demilitarization in their pre-independence compacts with Jerusalem.

What will happen next? Once it is formally established, a new state of Palestine will quickly become a staging area for incrementally expanding terror and war against Israel. More than likely, this transformation will take place while Hizbullah escalates its own rocket operations against Israel from Lebanon. Depending on the still uncertain outcomes in Syria, and also in Iran, the ferocity of such aggressions could compel Israel to launch renewed forms of self-defense in several theatres of conflict, and at the same time.

Israel’s indispensable efforts to defend its citizens from mounting threats will be met with a sanctimonious barrage of assorted international criticisms. Though international law naturally allows any similarly imperiled state to use necessary force preemptively, Israel’s expected efforts to stave off existential harms will assuredly be singled out for special condemnation. Ironically, the condemners could include the United States, even as Washington would continue to accelerate its daily drone attacks that kill and wound noncombatants in Afghanistan, Pakistan, and Yemen.

Humanitarian international law, or the law of war, requires that every use of force by an army or by an insurgent group meet the test of “proportionality.” Drawn from the core legal principle that “the means that can be used to injure an enemy are not unlimited,” proportionality stipulates, among other things, that every resort to armed force be limited to what is necessary for meeting appropriate military objectives.

This important principle of both codified and customary international law applies to all judgments of military advantage, and also to all planned reprisals.

Proportionality does not mean that the defending state, here Israel, must limit its use of force to the “amount” being used by the other side. Also, proper determinations of proportionality need not be made in a geopolitical vacuum. Instead, these legal decisions may always take into consideration the extent to which an adversary has committed prior or ongoing violations of the law of war.

In the frequently interrelated examples of Hamas/Islamic Jihad/Fatah terrorists in Gaza, and the Hizbullah terrorists in Lebanon, there is ample evidence that all of these belligerents have repeatedly been guilty of perfidy.

In law, deception can be acceptable in armed conflict, but the Hague Regulations expressly disallow the placement of military assets or military personnel in any heavily populated civilian areas. Further prohibition of perfidy can be found at Protocol I of 1977, additional to the Geneva Conventions of 1949. These rules are also binding on the basis of an equally authoritative customary international law.

Perfidy represents a very serious violation of the law of war, one that is even identified as a “grave breach” at Article 147 of Geneva Convention IV. The legal effect of perfidy committed by Palestinian or Hizbullah terrorists, especially their recurrent resort to “human shields,” has been to immunize Israel from legal responsibility for any inadvertent counter-terrorist harms done to Arab civilians. But even if Hamas and Islamic Jihad and Fatah and Hizbullah have not always engaged in deliberate violations, that is, even if there was no consistent mens rea, or criminal intent, any terrorist-created links between civilians and insurgent warfare bestowed upon Israel an unambiguous legal justification for military self-defense.

This is not to suggest that Israel should be given jurisprudential carte blanche in its defensive applications of armed force, but only that the reasonableness of these applications must always be appraised in the specific context of identifiable enemy perfidy. Israel should be treated as any other state under the law of war, no better but also no worse.

(Continued Next Week)

Israel’s UN Envoy Leaves Session in Protest When A-Jad Takes Podium

Tuesday, September 25th, 2012

Israel’s UN envoy Ron Prosor left a UN session on Monday in protest when Iranian President Mahmoud Ahmadinejad took the podium.  Ahmadinejad was present to speak about the rule of law in a session on the subject.

Prosor said inviting the Iranian leader to speak on the subject is like “appointing a pyromaniac as fire chief,” saying he is “a serial violator of the fundamental principles of the rule of law”.

“It is a shame and disgrace to give someone like him the opportunity to speak on such an important topic,” Prosor said.  “There is no justice and no judge.”

Do It Yourself Sukkah Shelf

Sunday, September 23rd, 2012

Way back then, when we put up our Sukkah for the first time, my father-in-law added a shelf along one of the walls. Right away I was struck by how simple and practical this idea was. Years later, people are still commenting about it. So here are the details for the many who have a wood panel Sukkahs. With simple supplies, and minimal “handy man skills” your candlesticks, seforim, bentchers, flowers, etc can “hang around” the entire Yom Tov, and not be moved and removed countless times from being in the way.

Supplies:

Finished piece of wood (pre cut pine shelving) I used 48’x9’x1/2’- the exact exact size will vary based on the size of your Sukkah and on distance between beams you will drill into

Decorative molding (optional) Decorative brackets Wood Stain Standard hardware (All supplies can be purchased in any home improvement store: Home Depot, Lowes, etc)

Directions:

Stain the wood the color of your choice (I used a stain/shellac combo applied with a lint free rag.)

Measure the distance between the beams and attach the brackets to the wood accordingly. Use at least two screws to attach bracket into the beam and at least one screw to hold the shelf to the bracket.

Choose a practical spot (high enough so items will be out of reach of children – about 5’), yet keep in mind that there needs to be a safe distance between the top of the Leichter and the Schach). The wall near the flames should be covered with aluminum foil. Hurricane lanterns are available, but the glass is very fragile.

For best results use a level to ensure the shelf is straight.

(TIP- If you don’t have a level, mark a constant one inch height around the circumference of a clear cup and fill with water to that height. When shelf is level, water should be at the one inch mark all around the cup.)

Pakistan’s Blasphemy Laws

Thursday, September 20th, 2012

The ordeal of Rimsha Masih, a Pakistani Christian arrested on charges of blasphemy, is far from over. In Pakistan, an allegation of blasphemy can be enough to result in the accused being killed even in the absence of a trial or evidence.

Masih, age fourteen, was charged under Pakistan’s notoriously draconian blasphemy laws, with burning a copy of the Quran, and held for three weeks in Rawalpindi prison.

There are serious flaws in the case against Masih. Not only is she a minor, but there are also reports that she has learning difficulties and is not of full mental capacity. To complicate the matter further, a local imam has also been arrested on claims that over he framed the girl after an ongoing dispute with her family.

Despite this, blasphemy allegations continue to elicit such passions in Pakistan that authorities could not risk sending Masih home; and a number of her neighbours, fearing reprisals after mosques disclosed her address, have fled their village.

Blasphemy is such a contentious issue that despite being released on bail, Masih had to be taken by an armoured vehicle to a military helicopter and then transported to an undisclosed location where she is currently in hiding. Police fear that if Masih is allowed to return to her village, a vigilante mob would attack her.

These fears are not unfounded. A lawyer for the prosecution warned that if Masih were not convicted, such a scenario was likely. Last year the governor of the Punjab, Salman Taseer, was shot dead for merely suggesting the blasphemy laws should be changed. Weeks after Taseer’s assassination Shahbaz Bhatti, a Catholic who was Pakistan’s only Christian member of the Cabinet, and who opposed the blasphemy laws, was also killed.

Far from causing revulsion, these assassinations were largely welcomed by militant groups and their supporters. Taseer’s assassin was lauded not just by radicals, but by those who would be expected to oppose mob “justice”: lawyers. Instead of being outraged, the young lawyers association of the Punjab offered to defend Taseer’s killer pro bono.

Minorities, being subject to almost half of all prosecutions under the law despite comprising about only 3% of the overall population, have particularly suffered under Pakistan’s blasphemy law, which is drafted in broad terms and states:

Article 295

B – Whoever wilfully defiles, damages or desecrates a copy of the Holy Qur’an or an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.

C – Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Politicians who want to challenge the law are routinely killed or intimidated, making the government keen to pursue – rather than curtail – blasphemy laws.

In 2009, in an effort an that is still current, Pakistan sponsored UN Res. 1618, to persuade the United Nation to adopt a law that initially would internationally criminalize questioning or discussing Islam, but was then changed to state “religions.” The U.S. Secretary of State, Hillary Clinton, broke years of silence on the topic to sponsor an official three-day, closed-door meeting on the Resolution in Washington D.C. just last December.

Pakistan, has also started monitoring internet and text communications in Pakistan, to ensure that people are not sending, searching, or looking up material that could be considered insulting to Islam.

This is the impasse: No one in Pakistan is willing to challenge the blasphemy laws. Those who do are assassinated. Mob justice is rampant in such cases, with the issues becoming highly charged and little attention being paid to the facts. The implications for those accused of such crimes are devastating.

Masih has no future in Pakistan. To ensure she can live her life, the British Pakistani Christian Association is currently lobbying the British government to grant her asylum so she can escape the strictures of religious fanaticism in the country.

In Pakistan, the mere allegation of blasphemy imposes the life sentence of a death sentence.

Originally published by the Gatestone Institute.

Printed from: http://www.jewishpress.com/indepth/opinions/pakistans-blasphemy-laws/2012/09/20/

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