Published by The Freeman Center

The Maccabean Online

Political Analysis and Commentary
on Israeli and Jewish Affairs

"For Zion's sake I shall not hold my peace, And for Jerusalem's sake I shall not rest."

by Louis Rene Beres

Updated/Revised From Original Publication in THE JEWISH PRESS
16 July 2005

Fearing "disengagement," many Israelis correctly recognize Prime Minister Sharon\'s surrender policies in Gaza and Samaria as the perilous beginnings of a Palestinian state. Not surprisingly, these conscious and conscientious citizens are now joining together in necessary opposition to such policies. Soon this opposition will likely take the very palpable form of increasingly widespread civil disobedience and related military refusals to participate in Jewish expulsions.

Although the Prime Minister can be expected to denounce such forms of internal opposition, and although it would be best for all Israelis to "simply" cooperate against incremental Jewish surrenders to sworn Arab enemies, there are times when civil disobedience is the only reasonable option. Incontestably, civil disobedience does have a long tradition in law and democratic theory. And the roots of this honored tradition even lie plainly in Higher Law, which is in turn derived from Jewish Law.

From its very beginnings, Jewish law has been viewed as an __expression of G-d\'s will. Biblically, the law is referred to as the "word of G-d," never of humankind. Hashem is the sole authentic legislator, and righteousness lies in observance of His law. The absence of righteousness places at risk the lives and well-being of both the individual and the entire community.

For ancient Israel, law was always the revealed will of G-d. All transgressions of the law were consequently offenses against The Almighty. The idea that human legislators might make law independently of G-d\'s will would have been incomprehensible. Indeed, as G-d was the only legislator, the sole function of human authorities was to discover the law and to ensure its proper application. According to Talmud: "Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mount Sinai."1

In the Jewish tradition, the principle of a Higher Law is not only well-established; it is the very foundation of all legal order. Wherever the law of the state stands in marked contrast to this principle, it is null and void. In certain circumstances, such contrast positively mandates opposition to the law of the state. Here, "civil disobedience" is not only lawful, but indispensably law-enforcing.

What sorts of circumstances are we describing? Above all others, they are conditions that place at existential risk the very survival of the state. In such prospectively dire circumstances, which were in fact already identified almost ten years ago in an Halachic Opinion issued by Prominent Rabbis in Eretz Yisroel Concerning Territorial Compromise,2 the matter is one of Pikuach Nefesh. Consequently, it demands apt forms of Jewish resistance.

Israel cannot long endure spiritually or strategically without all the heartlands of Judea and Samaria. Sharon\'s "disengagement" begins with Gaza, but it also points a knife at the heart of other "disposable" territories. 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. Ironically, this was recognized long ago by David Ben-Gurion in his speech to the 21st Zionist Congress in Basel in 1937:

No Jew has the right to relinquish the rights of the Jewish Nation in the Land of Israel. No Jew has the authority to do so. No Jewish body has such authority. Even the whole Jewish People - alive today - has no authority to relinquish any part whatsoever of the Land. This is the right of the Jewish Nation in all its generations, a right which may not be forfeited under any condition. Even if there would be, at some time, those who would announce that they give up this right, they have neither the power nor the authority to deprive future generations of this right. The Jewish Nation is neither obligated nor bound by any such relinquishment. Our right to this Land - to this entire Land - is valid and enduring forever, and until the full and complete redemption is carried out, we shall not budge from this historic right.

Israeli strategy and Jewish spirituality are meaningfully interpenetrating and interdependent. One cannot be separated purposefully from the other. The writer Hillel Halkin, fearing that the state of the Jews might one day be ruled by "Hebrew-speaking Gentiles" (a fear that was already widespread among such American Zionist as 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 will be blown away like chaff as though it never were, leaving neither Jews nor Israelis behind it."3 In a more recent essay the same writer observed that the hatred for Judaism of a very large portion of Israeli intellectuals, including those who now create a theoretical legitimacy for Sharon government "disengagement" policies, has become a hatred of Zionism.4

Halkin\'s fears remain well-founded. Especially under the Rabin and Peres governments, Israel hastened its transformation not only into a polity that is more and more detached from cultural Judaism, but into one that even undermines both Judaism and Zionism. With the subsequent election of Ehud Barak, this transformation had essentially been completed. Indeed, with the election of Barak, tens of thousands of Israelis were openly delighted that Israel had now seemingly become a "normal" (i.e., secular) nation.

Everywhere the right of sovereignty rests upon the assurance of protection. Where a state can no longer offer such assurance - indeed, where it deliberately surrenders such assurance - the critical basis of citizen obligation must disappear. "The obligation of subjects to the sovereign," said the English philosopher Thomas Hobbes in the seventeenth century, "is understood to last as long, and no longer, than the power lasteth by which he is able to protect them."

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 accelerate civil and military disobedience. Recognizing that victimization by words5 can set the stage for subsequent victimization by force, they shall soon seek, perhaps desperately, to "stop the machine" while there is still time. They will 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 substantially 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. Repeatedly, for example, the Sharon government has freed large numbers of Arab terrorists and has even offered 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 sustain the asymmetrical "Peace Process," and thereby the creation of "Palestine." Once a Palestinian state is actually born, it will inevitably 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.6

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 Law7 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.8 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.9

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 accomodated 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 Ecclesiasticus 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."

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 only the protesting opponents of Sharon\'s suicidal" disengagement" will be acting according to law.

NO Jewish soldier of Israel now has the right to forcibly expel fellow Jews in order to give land to openly-declared terrorist enemies. Not now. Not ever. In such manifestly existential matters, there is a clear and overriding obligation to identify expulsion orders as unambiguously illegal. This is true not only because of the generic Nuremberg obligation of all soldiers to resist crimes of state, but also because of the specifically Jewish obligation not to be complicit in Jewish auto-annihilation.

“Disengagement” is a crime of the greatest potential magnitude against the Land and People of Israel. It must be opposed energetically according to the long-established and fully authoritative expectations of Higher Law, Jewish Law and International 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. He is Professor of International Law, Department of Political Science, Purdue University. Prof. Beres is also the academic advisor to the Freeman Center For Strategic Studies.