7 February 2005
ISRAEL, CIVIL DISOBEDIENCE AND THE HIGHER LAW
By Louis Rene Beres
Soon - because of his planned "disengagement" from Jewish lands in Gaza and Samaria - Prime Minister Sharon will encounter widespread civil disobedience and civil resistance1 in Israel. Accompanying such civilian opposition may also be substantial military refusals to carry out eviction/resettlement orders against Jewish "settlers." Significantly, all of these rejections of Sharon's policy of surrender will represent far more than random expressions of anger and protest. Rather, they will stem purposefully and properly from the ancient Jewish tradition of a Higher Law.2
This vital Jewish tradition is authoritatively codified within the constitutional foundations of all modern democracies, especially those of the United States, and in contemporary international law.3 As will be revealed in the following discussion, Prime Minister Sharon's intended policy of overcoming disobedience and resistance in Israel, an essential disobedience that is being spawned by the dangerous consequences of "disengagement,"4 the earlier Oslo agreements5 and the larger "Peace Process,"6 (which is currently renamed the "Road Map") will be harshly destructive of Israel's security. It will also be starkly injurious to the overriding expectations and associated protections of Higher Law.
The principle of a Higher Law is not just "any principle." It is one of the enduring and canonic principles in the history of the United States.7 Codified in both the Declaration of Independence and in the Constitution,8 it rests upon the acceptance of certain notions of right and justice that obtain because of their own obvious merit. Such notions, as the celebrated Blackstone declared, are nothing less than "the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover so far as they are necessary for the conduct of human actions."9
When Jefferson set to work to draft the Declaration he drew freely upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and Locke's Second Treatise of Government.10 Asserting the right of revolution whenever government becomes destructive of "certain unalienable rights,"11 the Declaration of Independence posits a natural order in the world whose laws are external to all human will and which are discoverable through human reason.12 Although, by the eighteenth century, God had withdrawn from immediate contact with humankind and had been transformed into Final Cause or Prime Mover of the universe, "nature" provided an appropriate substitute.13 Reflecting the decisive influence of Isaac Newton, whose Principia was first published in 1686, all of creation could now be taken as an _expression of divine will.14 Hence, the only way to know God's will was to discover the law of nature; Locke and Jefferson had deified nature and denatured God.15
What, exactly, was this law of nature? It was, as Jefferson learned from Locke, the law of reason: According to Locke's second treatise:
The state of nature has a law to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions....
In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men....
A criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed on one, declared war against all mankind.16
As reason is the only sure guide to what God has given to humankind, reason is the only foundation of true law. This Lockean and Jeffersonian idea of a transcendent or Higher Law is expressed not only in the Declaration of Independence, but also in the Constitution.17 The Ninth Amendment, in stipulating that "the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated,"18 reflects the belief in a law superior to the will of human governance. And this belief runs continuously from ancient times, especially Jewish Law,19 to the present moment.
The Fragments of Heraclitus attest the antiquity of the idea of a Higher Law: "For all human laws are nourished by one, which is divine. For it governs as far as it will, and is sufficient for all, and more than enough."20 Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered into later Stoic philosophy, and described one universal and rational law.
In 442 B.C.E., Sophocles elucidated the idea of true law as an act of discovery, challenging the superiority of human rule-making in Antigone.21 Exploring the essential conflict between claims of the state and of the individual conscience, this drama has since been taken to represent the incontestable supremacy of a Higher Law over man-made law. Later, in the nineteenth century, Thoreau, noting that men live with "too passive a regard for the moral laws,"22 cited Antigone as a stirring example of civil disobedience.
Building upon Plato's theory of Ideas,23 which sought to elevate "nature" from the sphere of contingent facts to the realm of immutable archetypes or Forms,24 Aristotle advanced in his Ethics the concept of "natural justice."25 Quoting the Antigone, he argued that "an unjust law is not a law."26 This position, of course, is in stark contrast to the opinion of the Sophists that justice is never more than an _expression of supremacy, that it is what Thrasymachus calls, in Plato's Republic, "the interest of the stronger."27
The Stoics, whose legal philosophy arose on the threshold of the Greek and Roman worlds, regarded nature itself as the supreme legislator in the moral order.28 Applying Platonic and Aristotelian thought to the emerging cosmopolis, they defined this order as one where humankind, through its divinely granted capacity to reason, can commune directly with the gods.29 And since this definition required an expansion of Plato's and Aristotle's developing notions of universalism, the Stoics articulated a division between lex aeterna, ius natural and ius humanum.30
Lex aeterna is the law of reason of the cosmos, the logos which rules the universe. As an emanation of cosmic reason, human reason rules the lives of men. It follows that natural law partakes of eternal law, though it has a more limited range of application. Unlike the more elitist conception of Plato (and, to a certain extent, even Aristotle), the Stoic idea of an innate right reason presumed no divisions between peoples.31 Rather, in linking all persons with the cosmic order, it established the essential foundations of true universality.
Cicero, in De Republica, defined the state as a "coming together of a considerable number of men who are united by a common agreement about law and rights and by the desire to participate in mutual advantages."32 This definition sheds light on the problems surrounding positivist jurisprudence, a legal philosophy that values a state's edicts as intrinsically just and obligatory33. In a famous passage of De Republica, Cicero sets forth the classic statement on natural law:
True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions....It is a sacred obligation not to attempt to legislate in contradiction to this law; nor may it be derogated from nor abrogated. Indeed, by neither the Senate nor the people can we be released from this law; nor does it require any but oneself to be its expositor or interpreter. Nor is it one law at Rome and another at Athens; one now and another at a late time; but one eternal and unchangeable law binding all nations through all time....34
Israel has an obligation under natural law to preserve itself. Where the government of Israel acts contrary to this obligation - which is assuredly the case with "disengagement" - it is not only the right of Israel's citizens and soldiers to protest meaningfully, it is a decisive responsibility. Even if Israel has already bound itself in various agreements (e.g., Oslo/"Road Map") to implement evacuation of some of its own lands (presently Samaria and Gaza), it must immediately recognize these agreements to be null and void. In his OPINION ON THE FRENCH TREATIES, written on April 28, 1793, Thomas Jefferson stated that when performance in international agreements "becomes impossible, nonperformance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others."35 In that same document, Jefferson wrote: "The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations."36 It would be altogether reasonable to infer from this that all states are similarly prohibited from entering into "disengagements" that are "contrary to its indispensable obligations."
But what is to be done when positive law is at variance with true law, the question in Israel at this very moment? The Romans had a remedy. They incorporated in their statutes a contingency clause that man-made law could never abrogate obligations that are sacred.37 On several occasions, Cicero and others invoked this clause, or jus, against one statute or another.38 In this way, the written law of the moment, never more than an artifact of the civic community, remained subject to right reason.
Later, St. Augustine reaffirmed that temporal law must conform to the unchangeable eternal law,39 which he defined as "the reason or will of God (ratio divina vel voluntas Dei)."40 Aquinas continues this tradition of denying the status of law to prescriptions that are unjust (lex iniusta non est lex).41 "Human law," he wrote in the Summae,42 "has the quality of law only insofar as it proceeds according to right reason; and in this respect it is clear that it derives from the eternal law. Insofar as it deviates from reason it is called an unjust law, and has the quality not of law, but of violence."43
The concept of a Higher Law was widely integrated into medieval jurisprudential thought.44 According to John of Salisbury's Policraticus, "There are certain precepts of the law which have perpetual necessity, having the force of law among all nations and which absolutely cannot be broken."45 Recognizing the idea that all political authority must be intrinsically limited, John noted that the prince "may not lawfully have any will of his own apart from that which the law or equity enjoins, or the calculation of the common interest requires."46 Natural law, then, exists to frustrate political injustice.
In the seventeenth and eighteenth centuries, natural law doctrine was reaffirmed and secularized by Grotius.47 Reviving the Ciceronian idea of natural law and its underlying optimism about human nature, Grotius must be credited with liberating this idea from any remaining dependence on ecclesiastical or Papal interpretation.48 Building upon the prior speculations of the Dominican Francisco de Vitoria, who had proclaimed a natural community of humankind and the universal validity of human rights,49 Grotius fashioned a bridge from the Christian Commonwealth of the Middle Ages to a new interstate society.50 In this connection, he strengthened the idea of a universally valid natural law transcending in obligation all human law, including the law of the sovereign state.51
Unlike Machiavelli and Hobbes,52 Grotius did not reduce law to the will of the prince or of the state.53 Rather, while recognizing such will as a constitutive element in the international legal order, he understood that the binding quality of human edicts must be derived from the overriding totality of natural imperatives.54 Hence, he proceeded to reject raison d'etat as a just cause for war.55
This brings us directly to the conveyance of natural law ideas into American political theory, a transmittal - as we have already learned - that was preeminently the work of Locke's Second Treatise on Civil Government (1690).56 The codified American "duty" to revolt when governments commit "a long train of abuses and usurpations"57 flows from Locke's notion that civil authority can never extend beyond the securing of humankind's natural rights.58 Significantly, for those practicing civil disobedience/civil resistance in Israel today, the motto that Jefferson chose for his seal was, "Rebellion to Tyrants Is Obedience to God."59 As for the right to pursue happiness, which Jefferson drew from Burlamaqui's incorporation into natural law,60 it had nothing whatever to do with today's contemporary celebrations of materialism. Rather, happiness was viewed by Jefferson (in deference to Pufendorf and Locke) as a condition to be achieved as a result of humankind's commitment to reason.61
Above all else, perhaps, the Declaration of Independence codified a social contract that sets limits on the power of any government.62 Its purpose was to articulate a set of universally valid constraints upon all secular political authority. As justice, which is based on natural law, binds all human society, the rights described by the Declaration of Independence cannot be reserved only to Americans. Instead, they extend to all human societies, including Israel, and can never be abrogated by positive law.
This theory of a Higher Law is based on clarity, self-evidence and coherence. Its validity cannot be shaken by the presumed imperatives of geopolitics, even when Israeli leaders feel themselves threatened by political upheaval. Even if the Sharon Government takes seriously the promise of "disengagement," it lacks altogether the authority to cancel overriding legal imperatives.
Significantly, in an informed critique of the conduct of an earlier Attorney-General of Israel serving then Prime Minister Ehud Barak, Irving Gendelman, a citizen of Israel, observed:
It is interesting that there is a commonality between the US Declaration of Independence and the Declaration of the Establishment of the State of Israel in the enunciation of this underlying principle of government; namely, that governments derive their just powers from the consent of the governed and thus governments should be the means whereby the people may seek to achieve their destiny. In a profound sense, the intent of these notions may be to focus on the truism that government should be the handmaiden of the people in contrast to the Machiavellian approach.63
As noted by the Swiss scholar Emmerich de Vattel in the 1758 edition of The Law of Nations (a work in which several American fathers of independence discovered important maxims of political liberty): "No agreement can bind, or even authorize, a man to violate the natural law."64 Rather, Vattel cautioned that only obedience to higher legal obligations can produce a virtuous and thus a safe and prosperous state: "One would have to be very ignorant of political affairs not to perceive how much more capable a virtuous Nation is of forming a happy, peaceful, flourishing and secure state, respected by its neighbors and formidable to its enemies."65
In the end, the Higher Law expectations of the American political tradition, expectations that apply also to Israel, are not self-enforcing. Defied again and again by transient political elites, they can be sustained only where individuals seize their own inwardness and act (as does Antigone before Creon66 ) according to conscience. "Why has every man a conscience,"67 asks Thoreau in his essay on Civil Disobedience.
I think that we should be men first, and subjects afterwards. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.68
Where are such "conscientious men" (and women) to be found? Certainly not, says Thoreau, among the "commonly esteemed good citizens."69 These mass men and women serve the state "not as men mainly, but as machines, with their bodies."70 Placing themselves "on a level with wood and earth and stones,"71 they are incapable of making essential moral distinctions; thus, "they are as likely to serve the devil, without intending it, as God."72 This is easily enough seen today in Israel, where many citizens are still unable to recognize the difference between transient laws of the state and true law, a difference that is deeply rooted in Jewish Law and international law, and that demands the authentically law-enforcing behavior of civil disobedience and/or civil resistance.
Can Israel create the conditions for a conscientious "corporation" though the education of an informed citizenry? From Rousseau to the present, this has been the path of virtually all democratic theory. Rousseau believed that law and liberty could exist in a city-state of properly educated voters like Geneva:
As he stipulates in Book III of the Social Contract:
First, a very small state where the people can be readily got together and where each citizen can with ease know all the rest; secondly, great simplicity of manners, to prevent business from multiplying and raising thorny problems; next, a large measure of equality in rank and fortune, without which equality of rights and authority cannot long subsist; lastly, little or no luxury - for luxury either comes of riches or makes them necessary.
But Israel is not Geneva, and Rousseau's idea that (even under very definite conditions) a majority can be trusted with what is really best for "the people" is always baneful. The dangers of the "general will" have been made manifest not only in the exploits of Robespierre and Napoleon, but also in the banal collectivism of contemporary Israel's political Left and its sometimes unwitting allies, whatever the particular political party affiliations involved. Although certainly not by any means a majority (quite the contrary), this deluded segment of Israelis fails to recognize that the struggle against terror is deeply embedded in the laws of its allies,73 in antecedent international law,74 and that all terrorists are Hostes humani generis,75 "Common enemies of mankind."
Rousseau's deification of The People points toward the very opposite of the Higher Law tradition and its underlying Jewish origins. The Genevan made "The People" sovereign; for Israel, however, sovereignty must soon come to reside in The Person.76 As Thoreau understood, apathy, complacency passivity and moral cowardice are the inevitable trappings of the mass of men and women. Hope lies only in those real individuals whose primary allegiance is to overriding and universal laws, not in the presumptive "good citizen" but in the "wise minority."
What is the task of this body of persons, which - in fact - could easily represent a true and distinct majority? of those individuals whose choice of inwardness compels them to remain forever outside the grazing herd? Thoreau speaks truthfully of civil disobedience, an act of "counter-friction" that may undermine expediency and restore higher standards of personal judgment. Confronted with an evil of the sort now confronted by Israelis, the evil of an existentially dangerous foreign policy,77 he would urge, as he once did about other policy deformations in Civil Disobedience, "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 not to suggest that civil disobedience or civil resistance should be undertaken lightly. As the authors of the Declaration of Independence understood, prudence dictates that "Governments long established should not be changed for light and transient causes." Moreover, even much less extreme forms of opposition than revolution must be considered with great care, since the benefits and strengths of the state are manifest and self-evident. What we require in Israel today is neither revolution nor even regularized patterns of civil disobedience or resistance, but rather a greatly enlarged citizen inclination (1) to recognize the prevailing draft of unwisdom in the Sharon Government; and (2) to confront those responsible for this drift with a sustained, informed and necessary opposition. Such a confrontation, when it takes the form of active protest and far-reaching non-cooperation (civilian and military) would represent the very highest levels of lawful behavior - both from the standpoint of international law and Jewish law.
In the years before the Civil War, thousands of Americans organized an Underground Railroad to help those fleeing from slavery. At that time, those who participated in this movement were judged lawbreakers by the Federal government, and were frequently imprisoned under the Fugitive Slave Act. Today, it is widely recognized that the only lawbreakers of the period were those who sustained the system of slavery, and that every individual act to oppose this system had been genuinely law-enforcing. Similar patterns of recognition will soon emerge in regard to the anti-"disengagement" movement in Israel,78 but, alas, probably not until the Sharon administration has fought bitterly against the legitimacy of civil disobedience and civil resistance.
Here Israel may learn a further lesson from the United States. This country has long maintained a common law defense known as "necessity." This defense, which has also now been incorporated into various state criminal codes,79 permits conduct that would otherwise constitute an offense if the accused believed that such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his/her own conduct. Transposed to the Israeli context, where the greater public and private injury occasioned by "disengagement" could include expanding terrorism,80 war crimes, crimes against peace (aggression)81 and even crimes against humanity82 (genocide), a "necessity" defense could be compelling in disobedience/resistance cases. This is the case even if Israeli law recognizes no explicit form of "necessity," because this law must recognize the Higher Law principle from which the "necessity" defense derives. This principle, in an ironic turn, has its own origins in the law of ancient Israel.
"When I get to heaven," said the Hasidic Rabbi Susya just before his death, "they will not ask me, `Why were you not Moses?' but `Why were you not Susya?'" Unless they are successful, when the People of Israel come to confront the dire consequences of "disengagement" they will ask many things: "Why did we not oppose the Government, when we still had time, with apt forms of disobedience and resistance?" "Why did we not do what we were obligated to do?"83 "Why did we act in a fashion contrary to our own unique Jewish potentiality?" "Why did we abandon our Jewish traditions and our survival interests at the same time?"
Of course, some of the People will not need to ask these questions. These people will have already done what was required by law, both by Jewish law and by international law.84 Regarding Jewish Law, which is itself a foundation of International Law, the earlier important Halachic Opinion85 issued by prominent rabbis in Israel should be taken very seriously. The ruling that "It is forbidden, under any circumstance, to hand over parts of Eretz Yisrael to Arabs,"86 derives in part from the obligations of "Pikuach Nefesh,"87 the obligations to save Jewish lives in a matter of life or death. Where the Government of Israel, by proceeding with "disengagement," jeopardizes Jewish lives and places them in a situation of Pikuach Nefesh,88 acts of civil disobedience and civil resistance against this Government are not only permissible, but also law-enforcing.
Regarding international law, there are standing Nuremberg89 obligations to resist crimes of state,90 crimes such as those involved in deliberate assaults upon the principle of Nullum crimen sine poena91 and in flagrant indifference to national survival.92 Major legal theorists through the centuries, especially Bodin, Hobbes93 and Leibniz, always understood that the provision of security is the first obligation of the state. Where the state can no longer provide such security, it can no longer expect obedience. And where the state actively avoids the provision of such security, as is the case today in Prime Minister Sharon's wilful surrender of security to enemy Arab forces, citizens have an obligation to resist the state's policies. Indeed, as the Sharon Government's policies could lead even to another Jewish genocide,94 this proper obligation could arguably go far beyond the more gentle forms of disobedience and resistance.
International law, which is based upon a variety of Higher Law foundations, forms part of the law of all states, including the State of Israel.95 This is the case whether or not the incorporation of international law into municipal law is codified explicitly, as it is in the United States.96 It follows that the Government of Israel is bound by pertinent norms of international law concerning punishment of terrorist crimes,97 the prevention of genocide and physical survival of the state.98 Where this Government fails to abide by these peremptory norms,99 civil disobedience and/or civil resistance are not only permissible but required.
AFTERWORD/ Why There Are No "Israel Occupied Territories" From Which To "Disengage"
Contrary to widely-disseminated but erroneous allegations, a sovereign state of Palestine did not exist before 1967 or 1948; a state of Palestine was not promised by authoritative U.N. Security Council Resolution # 242. Indeed, a state of Palestine has NEVER existed.
As a nonstate legal entity, Palestine ceased to exist in 1948, when Great Britain relinquished its brutal (to the Jews) League of Nations mandate. When, during the 1948-49 War of Independence, Judea/Samaria and Gaza came under illegal control of Jordan and Egypt respectively, these aggressor states did not put an end to an already-existing Arab state. From the Biblical Period (ca. 1350 BCE to 586 BCE) to the British Mandate (1918 - 48), the land named by the Romans after the ancient Philistines (a naming to punish and to demean the Jews) was controlled exclusively by non-Palestinian elements. Significantly, however, a continuous chain of Jewish possession of the land was legally recognized after World War I at the San Remo Conference of April 1920. There, a binding treaty was signed in which Great Britain was given mandatory authority over Palestine (the area had been ruled by the Ottoman Turks since 1516) to prepare it to become the "national home for the Jewish People."
Palestine, according to the treaty, comprised territories ecompassing what are now the states of Jordan and Israel, including Judea/Samaria and Gaza. Present-day Israel, including Judea/Samaria and Gaza, comprises only twenty-two percent of Palestine as defined and ratified at the San Remo Peace Conference. In 1922, Great Britain unilaterally and illegally split off seventy-eight percent of the lands promised to the Jews - all of Palestine east of the Jordan River - and gave it to Abdullah, the non-Palestinian son of the Sharif of Mecca. Eastern Palestine now took the name Transjordan, which it retained until April 1949, when it was renamed as Jordan.
From the moment of its creation, Transjordan was closed to all Jewish migration and settlement, a clear betrayal of the British promise in the Balfour Declaration of 1917, and a contravention of its Mandatory obligations. On July 20, 1951, a Palestinian Arab assassinated King Abdullah for his hostility to Palestinian nationalist aspirations. Several years prior to Abdullah's murder, in 1947, the newly-formed United Nations, rather than designate the entire land west of the Jordan River as the Jewish National Homeland, enacted a second partition. Ironically, because this second fission gave grievously unfair advantage to the Arabs (whose genocidal views toward the Jews were already open and undisguised), Jewish leaders accepted the painful judgment while the Arab states uniformly rejected it.
On May 15, 1948, exactly one day after the State of Israel came into formal existence, Azzam Pasha, Secretary General of the Arab League, declared - to the new tiny state founded upon the ashes of the Holocaust: "This will be a war of extermination and a momentous massacre...." This declaration, of course, has been and remains the cornerstone of all subsequent Arab policies toward Israel. In 1967, almost twenty years after Israel's entry into the community of nations, the Jewish State - as a result of its stunning military victory over Arab aggresor states - gained unintended control over Judea/Samaria and Gaza. Although the inadmissibility of acquisition of territory by war had already been enshrined in the U.N. Charter, there existed no authoritative sovereign to whom the territories could be "returned." Leaving aside the compelling argument that these were Jewish lands, Israel could hardly have been expected to transfer these lands back to Jordan and Egypt, which had exercised wholly illegitimate and cruel control since the Arab-initiated war of extermination in 1948 - 49. Moreover, the idea of Palestinian "self-determination" was only just beginning to emerge after the Six Day War, and was not even codified in U.N. Security Council Revolution # 242, which had been adopted on November 22, 1967. For their part, the Arab states convened a summit in Khartoum in August 1967, concluding: "No peace with Israel, no recognition of Israel, no negotiations with it...." Since then there have been intermittent negotiations, even formal peace treaties with Egypt and Jordan, but no substantive changes on the Arab side. To this very day, no Arab maps include Israel, and on the official Palestinian Authority maps, "Palestine" includes ALL of Israel. There are no "two states" on the Palestinian maps. Yet it is to this same Palestinian Authority that Israeli Prime Minister Sharon now prepares to surrender Gaza and parts of Samaria.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with international law. Prof. Beres is the academic advisor to the Freeman Center For Strategic Studies.
1There are meaningful differences between civil disobedience and civil resistance. In its classic _expression, civil disobedience involves purposeful violations of domestic law in order to produce changes in this law. Those who engage in civil disobedience normally understand that they are "guilty" of particular infractions, even when the opposed rule is egregious (e.g., norms sustaining slavery or segregation), and where the intent of the infraction is plainly noncriminal and humane. Hence, civil disobedience defendants - even where the legitimacy of the courts themselves is denied - are ordinarily prepared to accept court-ordered punishment as the required and possibly reasonable price of their activities. Civil resistance, however, is another matter. In the first place, although it may involve purposeful violations of municipal law, these violations are not conceived with a view to changing that particular law. In Israel, protestors against "disengagement" will not be seeking any precise changes in Israeli law per se; rather, what they will seek is a reversal of very specific expressions of Israeli foreign policy. In the second place, individual protestors who would engage in nonviolent civil resistance activities to oppose certain elements of Israeli foreign policy will be attempting to prevent the ongoing violation of certain settled norms of national and international law. These protestors, who may even include soldiers refusing to carry out eviction/deportation orders, will be fulfilling important Nuremberg and other Higher Law expectations.
2In this tradition, God is unambiguously the source of all law. Here, law is an aspect of the divine order for the cosmos. The Torah reflects both God's transcendance and immanence. The basis of obligation, which concerns us presently in the context of civil disobedience/civil resistance, inheres in the law's transcendant nature. See: Aaron M. Schreiber, JEWISH LAW AND DECISION-MAKING: A STUDY THROUGH TIME (Philadelphia: Temple University Press, 1979), 440 pp. See especially Chapter V: "Talmudic Law in General: The Effect of Cultural and Socio-Economic Conditions on Talmudic Law."
3In international law the idea of a Higher Law is contained (inter alia) within the principle of jus cogens or peremptory norms. According to Article 53 of the Vienna Convention on the Law of Treaties: "A peremptory norm of general international law...is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." See VIENNA CONVENTION ON THE LAW OF TREATIES, May 23 1969, art. 53, 1155 U.N.T.S. 344, reprinted in 8 I.L.M. 679 (1969).
4Surely the most dangerous expected consequence will be the creation of a new anti-Israel terror state in the region, an Arab state of "Palestine." For the particular dangers to Israel of a Palestinian state, by this author, see: Louis Rene Beres, "On Hamas `Freedom Fighters:' The View From International Law," MIDSTREAM, Vol. L, No. 1., January 2004, pp. 8 - 10; Louis Rene Beres, "`Strategic Balance' in the Middle East: An Injurious Concept," MIDSTREAM, Vol. XXXXVII., No. 5, pp. 4 - 6; Louis Rene Beres, "Before the `Real' Terror," MIDSTREAM, Vol. XXXXVI., No. 8., December 2000, pp. 4 - 5; Louis Rene Beres, "Implications of a Palestinian State for Israeli Security and Nuclear War: A Jurisprudential Assessment," DICKINSON JOURNAL OF INTERNATIONAL LAW, Vol. 17, No. 2., Winter 1999, pp. 229 - 286; Louis Rene Beres, "Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law," (with Ambassador Zalman Shoval), TEMPLE INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Winter 1998, pp. 347 - 363; Louis Rene Beres, "Israel, the `Peace Process,' and Nuclear Terrorism: Recognizing the Linkages," STUDIES IN CONFLICT AND TERRORISM., Vol. 21, No .1, January 1998, pp. 59 - 86; Louis Rene Beres, "After the `Peace Process:' Israel, Palestine and Regional Nuclear War," DICKINSON JOURNAL OF INTERNATIONAL LAW, Vol. 15, No. 2., Winter 1997, pp. 301 - 335; Louis Rene Beres, "Israel, the `Peace Process,' and Nuclear Terrorism: A Jurisprudential Perspective," LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Vol. 18, No. 4., September 1996, pp. 767 - 793; and Louis Rene Beres, "On Demilitarizing a Palestinian `Entity' and the Golan Heights: An International Law Perspective," VANDERBILT JOURNAL OF TRANSNATIONAL LAW, Vol. 28., No. 5., November 1995, pp. 959 - 971. Co-authored with Zalman Shoval, Israel's two-time Ambassador to the United States.
5Oslo II was signed at the White House on September 28, 1995. Oslo I was signed at the same venue on September 13, 1993. Of course, neither accord is an authentic treaty under international law.
6Regarding the lawfulness of opposition to this Process, including civil disobedience and civil resistance, international law stipulates, at the VIENNA CONVENTION ON THE LAW OF TREATIES, that even a treaty must always be subordinate to peremptory expectations: "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law." (supra; at 344). Significantly: (1) The compendium Oslo Agreement is not even a treaty under international law (as one of the parties is a nonstate entity); and (2) There are at least two peremptory norms violated by the Oslo Agreement. First, the Agreement contravenes the obligation of each state to preserve itself. Second, the Agreement contravenes the universally binding obligation to punish egregious acts of criminality, an obligation known jurisprudentially as Nullum crimen sine poena, "No crime without a punishment." The first contravention is expressed lucidly, inter alia, by Thomas Jefferson in his "Opinion on the French Treaties" (April 28 1793): "The nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations." The second contravention, which is founded upon Israel's illegal entry into diplomatic agreement with a terrorist organization, is discussed more fully by this author in: Louis Rene Beres, ISRAEL'S SURVIVAL IMPERATIVES: THE OSLO AGREEMENTS IN INTERNATIONAL AND NATIONAL STRATEGY, Ariel Center for Policy Research, Israel: Policy Paper No. 102, 2000, 110 pp; Louis Rene Beres, "Implications of a Palestinian State for Israeli Security and Nuclear War: A Jurisprudential Assessment," DICKINSON JOURNAL OF INTERNATIONAL LAW, Vol. 17, No. 2., Winter 1999, pp. 229 - 286; Louis Rene Beres, "Israel After Fifty: The Oslo Agreements, International Law and National Survival," THE CONNECTICUT JOURNAL OF INTERNATIONAL LAW, Vol. 14, No. 1., Summer 1999, pp. 27 - 81; Louis Rene Beres, "Israel's Freeing of Terrorists Violates International Law," JOURNAL OF COUNTERTERRORISM AND SECURITY INTERNATIONAL, Winter 1999, Vol. 5., No. 4., pp. 44 - 46; Louis Rene Beres, "The Oslo Agreements in International Law, Natural Law and World Politics," ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Vol. 14, No. 3., pp. 715 - 746; Louis Rene Beres, "Why the Oslo Accords Should Be Abrogated by Israel," AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY, Vol. 12, No. 2., 1997, pp. 267 - 284; and Louis Rene Beres, "International Law Requires Prosecution, Not Celebration, of Arafat," UNIVERSITY OF DETROIT MERCY LAW REVIEW, Vol. 71, Issue 3, Spring 1994, pp. 569 - 580.
7See Edward S. Corwin, THE "HIGHER LAW" BACKGROUND OF AMERICAN CONSTITUTIONAL LAW (1955); Alexander P. D'Entreves, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY (1951).
8See U.S. Constitution, Art. IX. According to Clinton Rossiter, there exists a "deep-seated conviction" among Americans "that the Constitution is an _expression of the Higher Law, that it is, in fact, imferfect man's most perfect rendering" of eternal law. See Rossiter, preface to Corwin, supra, at vi.
9The Higher Law origins of United States municipal law are embedded, inter alia, in Blackstone's COMMENTARIES, which recognize that all law "results from those principles of natural justice, in which all the learned of every nation agree...." See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, "Of Public Wrongs," p. 62 (Chapter V., "Of Offenses Against the Law of Nations.")
10See John Locke, TWO TREATISES OF GOVERNMENT 123 (T.I. Cook, ed., 1947).
11See THE DECLARATION OF INDEPENDENCE
12See Julius Stone, THE PROVINCE AND FUNCTION OF LAW (Cambridge MA: Harvard University Press, 1950), Chapter VIII, "Natural Law."
13Here, in the Deist view, Nature had "replaced" God as the source for lawful behavior.
14Newton says in his Principia: "This most beautiful system of the sun, planets, and comets could only proceed from the counsel and dominion of an intelligent and powerful Being." Cited by Abraham Kaplan, IN PURSUIT OF WISDOM: THE SCOPE OF PHILOSOPHY (Beverly Hills CA: Glencoe Press, 1977), p. 550.
15See Stone, supra, Ch. VIII.
16See Locke, supra, 123.
17See The Bill of Rights, as detailed in the following discussion.
18See U.S. Constitution, Ninth Amendment.
19The fundamental principle of ancient Hebrew law, of course, is that the revealed will of God is the only source of all Jewish law. In the talmudic position, "Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mount Sinai." (See Jerusalem Megillah IV, 74d.)
20See Sec. 81, Fragment No. DK 22B114 of THE PRESOCRATICS 75 (Philip Wheelwright ed., Bobbs-Merrill 1960). The authoritative text for the fragments of Heraclitus is Hermann Diels & Walther Kranz, DIE FRAGMENTE DER VORSOKRATIKER (6th ed., Weidmann 1966).
21A century before Demosthenes, Antigone's appeal against Creon's order to the "unwritten and steadfast customs of the Gods" had evidenced the inferiority of human rule-making to a Higher Law. Here, in the drama by Sophocles, Creon represents the Greek tyrant who disturbs the ancient harmony of the city state. Aristotle, in his RHETORIC, quotes from Sophocles' ANTIGONE when he argues that "an unjust law is not a law." See RHETORIC 1, 15, 1375, a 27 et seq.
22See Henry David Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE, in WALDEN, OR LIFE IN THE WOODS AND ON THE DUTY OF CIVIL DISOBEDIENCE (Signet 1960).
23Plato's theory, offered in the fourth century B.C.E, seeks to explain politics as an unstable realm of sense and matter, an arena formed and sustained by half-truths and distorted perceptions. In contrast to the stable realm of immaterial Forms, from which all genuine knowledge must be derived, the political realm is dominated by the uncertainties of the sensible world. At the basis of this political theory is a physical-mental analogy that establishes a correlation between the head, the heart and the abdomen, and the virtues of intelligence, courage and moderation.
25See Corwin, supra, at 7.
27"Right is the interest of the stronger," says Thrasymachus in Bk. I, Sec. 338 of Plato, THE REPUBLIC (B. Jowett tr., 1875). "Justice is a contract neither to do nor to suffer wrong," says Glaucon, id., Bk. II, Sec. 359. See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
28See Corwin, supra, at 9: "The Stoics...thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Reason was the pervading, animating and governing soul; and natural law was the rule of conduct laid down by this Universal Reason for the direction of mankind." Salmond, JURISPRUDENCE 27 (7th ed., 1924), cited in Corwin, supra, at 9.
30These terms are defined and discussed below.
31See Corwin, supra, at 9.
32Spoken by Scipio in Bk. I of DE REPUBLICA; cited in Alexander P. D'Entreves, THE NOTION OF THE STATE 24 (1967).
33See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, 224-230. Stone calls positive law "...the law actually enforced by organised society in a particular place at a particular time." (p. 225) Understood in terms of natural law, positive law is merely a necessary evil, tolerable and valid only to the extent that it coincides with natural law. In this theory, says Julius Stone, "Not only does natural law provide the criterion for judgment whether positive law is just. It goes further and provides the criterion for deciding whether positive law is valid law at all." (Id., at 226)
34See Cicero, I DE LEGIBUS, cited in Corwin, supra, at 10; D'Entreves, supra., at 20 - 21. Similarly, in his DE OFFICIIS, Cicero wrote: "There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal....It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples." (cited by Stone, supra, at 216.) See also DE LEGIBUS, Bk. i, c, vii; cited by Stone, supra, at 216.
35See: Thomas Jefferson, OPINION ON THE FRENCH TREATIES, April 28, 1793, in THE POLITICAL WRITINGS OF THOMAS JEFFERSON 114 (Merrill D. Peterson, ed., 1993). Here it must also be mentioned that Jefferson is speaking of authentically "international" agreements, whereas any Israeli agreement with the Palestinian Authority is, by definition, on a lower order of obligation.
36See: Id., at 115.
37See Corwin, supra, at 12.
38Id, at 13.
39See D'Entreves, supra, 36 - 37. In early Christendom, Augustine offered a system of thought that identified the locus of all global problems in the human potentiality for evil. Combining a philosophy of Neoplatonism with a view of the universe as a struggle between good and evil, he attributed the trials of humankind to the taint of original sin. This view, transformed into a secular political philosophy, is now reflected by exponents of the school of realism or realpolitik. Augustine, writing at the beginning of the fifth century A.D., sets out, in the CITY OF GOD, to describe human history as a contest of two societies, the intrinsically debased City of Man and the eternally peaceful City of God. In this contest, the state, the product of humankind's most base tendencies, is devoid of justice and destructive of salvation. A mirror image of human wickedness, the state is little more than a "large gang of robbers." In an oft-quoted passage, Augustine recalls the answer offered by a pirate who had been captured by Alexander the Great. When asked by Alexander what right he had to infest the seas, the pirate replied: "The same right that you have to infest the world. But because I do it in a small boat I am called a robber, while because you do it with a large fleet you are called an emperor."
40See Julius Stone, HUMAN LAW AND HUMAN JUSTICE (Stanford CA: Stanford University Press, 1965), p. 44. For Augustine, this reason or will of God "commands us to preserve the natural order and prohibits us to disturb it." (See Contra Faustum, XXII, 27; cited by Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 44.
41Thomas Aquinas recalls Augustine as follows: "St. Augustine says: `There is no law unless it be just.' So the validity of law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law. And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law." See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D'Entreves, supra, pp. 42 - 43.
42See D'Entreves, supra, at 42 - 43.
43The importance of reason to legal judgment was prefigured in ancient Israel, which accomodated reason within its system of revealed law. Jewish theory of law, insofar as it displays the marks of natural law, offers a transcending order revealed by the divine word as interpreted by human reason. In the striking words of 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...."
44See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, Chapter VIII.
45See Corwin, supra, at 17 - 18.
46Id., at 19.
47See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 64 - 68.
49See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 - 63.
50Id, pp. 65 - 68.
52The sixteenth-century Florentine philosopher, Niccolo Machiavelli, joined Aristotle's foundations for a scientific study of politics with assumptions of realpolitik to reach certain conclusions about politics. His most important conclusion underscores the dilemma of practicing goodness in an essentially evil world: "A man who wishes to make a profession of goodness in everything must necessarily come to grief among so many who are not good." (See THE PRINCE, Chapter XV). Recognizing this tragic state of affairs, Machiavelli proceeds to advance the arguments for expediency that have become synonymous with his name. With the placing of the idea of force at the center of his political theory, the author of THE PRINCE stands in sharp contrast to the Platonic and early Christian concepts of the "good." Rejecting both Plato's argument that there is a knowable objective "good" that leads to virtue, and Augustine's otherworldly idea of absolute goodness, Machiavelli constructs his political theory on the assumption that "all men are potential criminals, and always ready to realize their evil intentions whenever they are free to do so." In his instructions to the statesman on how to rule in a world dominated by force, he advises "to learn how not to be good." The seventeenth-century materialist and social philosopher, Thomas Hobbes, elaborated a complex system of thought in which man was reduced to a state of nature and then reconstructed. Seeking a science of human nature that would have the rigor of physics, Hobbes looked to introspection as the source of genuine understanding: "Whosoever looketh into himself and considereth what he doth when he does think, opine, reason, hope, fear, etc., and upon what grounds, he shall thereby read and know, what are the thoughts and passions of all other men, upon the like occasions." (See Introduction to LEVIATHAN). The results of such an analysis of one's own thought processes led Hobbes to his celebrated theory of the social contract: the natural egoism of man produces a "war of all against all" in the absence of civil government and must be tempered by absolute monarchy. Moreover, the condition of nature, which is also called a condition of war marked by "continual fear, and danger of violent death," has always been the characteristic condition of international relations and international law: "But though there had never been any time, wherein particular men were in a condition of war one against another; yet, in all times, kings, and persons of sovereign-authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms, and continual spies upon their neighbors, which is a posture of war." (See LEVIATHAN, Chapter XIII).
53This is because the principal Grotian effort was to "translate" natural law from pure philosophical speculation into a pragmatic legal ordering. See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 65.
55The Swiss scholar, Emmerich de Vattel, notes - in his 1758 classic THE LAW OF NATIONS: "No agreement can bind, or even authorize a man to violate the natural law." See Albert de LaPradelle, Introduction to Emmerich de Vattel, LE DROIT DES GENS (THE LAW OF NATIONS)(Charles G. Fenwick, tr., 1916).
56See Corwin, supra, at 61.
59See Thomas Jefferson, IV WORKS 362 (New York, P.L. Ford, ed., 1892-99).
60J.J. Burlamaqui, author of PRINCIPES DU DROIT DE LA NATURE ET DES GENS (1774) was a Swiss scholar who held a Chair at the University of Geneva. His work has been described by J. Stone and others as "rational utilitarianism." See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 71.
61See Corwin, supra, p. 81.
63See Irving Gendelman, CRITIQUE OF THE OFFICE OF THE ATTORNEY-GENERAL (mimeo), p. 2. Document available from the author. This document, inter alia, discusses findings of the Association of Civil Rights in Israel (ACRI) concerning unlawful government suppression of legitimate dissent, unlawful resort to emergency regulations and extended police brutality. It refers to events and policies in the Barak era.
64See Vattel, THE LAW OF NATIONS (Washington D.C.: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4.
66See Sophocles, ANTIGONE, supra.
67See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).
73In the United States, for example, strong action against terrorists was already mandated ten years ago by THE COMPREHENSIVE TERRORISM PREVENTION ACT OF 1995 (Title II., Sec. 201(4): "The President should use all necessary means, including covert action and military force, to disrupt, dismantle and destroy infrastructures used by international terrorists, including terrorist training facilities and safe havens." See: THE COMPREHENSIVE TERRORISM PREVENTION ACT OF 1995, 104th Congress, 1st Sess., S. 735, U.S. Senate, April 27, 1995, p. 18.
74Here it should be noted that pertinent international law is found also in "international custom," which may or may not identifiably derive from Higher Law foundations. Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as "evidence of a general practice accepted as law." In this connection, the essential significance of a norm's customary character under international law is that the norm binds even those states that are not parties to the pertinent codifying instrument or convention. With respect to the bases of obligation under international law, even where a customary norm and a norm restated in treaty form are apparently identical, the norms are treated as separate and discrete.
75See: Harvard Research in International Law: Draft Convention on Jurisdiction with Respect to Crime, 29 AM. J. INT'L L., 435 (Supp. 1935) at 566 (quoting Coke, C.J. in King v. Marsh, 3 Bulstr. 27, 81 E.R. 23 (1615)("a pirate est Hostes humani generis").
76Jewish law (Halakhah) rests upon twin principles - the sovereignty of God and the sacredness of the Person or individual. Both principles, intertwined and interdependent, underlie the present 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 derives from each individual's resemblance to divinity, flows the human freedom to choose. The failure to exercise this freedom, which is evident wherever response to political authority is automatic, represents a betrayal of legal responsibility. On 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. Moreover, Jewish law is democratic in the sense that law belongs to all of the people, a principle reflected in the talmudic position that each individual can approach God and pray without priestly intercessions. This points toward a fundamental goal of law to be creative, to improve society and the state - a goal to be taken seriously in current evaluations of the permissibility of civil disobedience in Israel.
77One such overriding danger has to do with the disappearance of Israel's "strategic depth," an inevitable and intolerable consequence of transforming certain Jewish lands into "Palestine." Regarding this military concept of "strategic depth," one should recall Sun-Tzu's timeless observation: "If there is no place to go it is fatal terrain." See: Sun-Tzu, THE ART OF WAR, Ralph D. Sawyer, tr. (New York: Barnes and Noble Books, 1994), Chapter 11, "Nine Terrains."
78Here it is important to recall that those who oppose "disengagement," not those who support it, are acting to fulfil the peremptory expectations of Nullum crimen sine poena, "No crime without a punishment." International law presumes solidarity between states in the fight against crime (terrorism is a crime under international law). This presumption is mentioned in the CORPUS JURIS CIVILIS; in Hugo Grotius' DE JURE BELLI AC PACIS LIBRI TRES (Book II, Ch. 20); and in Emmerich de Vattel's LE DROIT DES GENS (Book I, Ch. 19). The case for universal jurisdiction over egregious crimes, which derives from the presumption of solidarity, is found in the four Geneva Conventions of August 12 1949. These Conventions unambiguously impose upon the High Contracting Parties the obligation to punish certain "grave breaches" of their rules. The term "grave breaches" applies to certain infractions of the Geneva Conventions of 1949 and Protocol I of 1977. The High Contracting Parties to the Geneva Conventions are under obligation "to enact any legislation necessary to provide effective penal sanctions for persons commiting, or ordering to be committed," a grave breach of the Convention. As defined at Art. 147 of Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516, signed on Aug. 12, 1949, at Geneva), Grave Breaches "shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health...." Clearly, multiple grave breaches were committed by the PA/PLO, the organization with which the Sharon Government now claims to be "partners in peace."
79Two widely-cited criminal cases are representative here: People v. Jarka, No. 002170 in the Circuit Court of Lake County, Waukegan, Illinois; and Chicago v. Streeter, No. 85 - 108644, in the Circuit Court of Cook County, Chicago, Illinois. Defendants in both cases were acquitted by invoking the "necessity" defense, which had been incorporated into the Illinois Criminal Code. See Chapter 38, Secs. 7 - 13, of the Illinois Revised Statutes (1983).
80Terrorism is specifically criminalized by customary and conventional international law. See, especially: EUROPEAN CONVENTION ON THE SUPPRESSION OF TERRORISM, done at Strasbourg, Nov. 10, 1976. Entered into force, Aug. 4, 1978. Europ. T.S. No. 90, reprinted in 15 I.L.M. 1272 (1976).
81See: RESOLUTION ON THE DEFINITION OF AGGRESSION. Adopted by the U.N. General Assembly, Dec. 14, 1974. U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc A/9631 (1975), reprinted in 13 I.L.M. 710 (1974).
82For authoritative definition of crimes against humanity, see: AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS POWERS AND CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL., done at London, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 (entered into force, Aug. 8, 1945).
83Regarding their particular Jewish obligations, citizens of Israel should now also recall David Ben-Gurion's warning at the 21st Zionist Congress in Basel, Switzerland (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 the 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."
84For a comprehensive assessment of the natural law origins of international law by this writer, see: Louis Rene Beres, "Justice and Realpolitik: International Law and the Prevention of Genocide," THE AMERICAN JOURNAL OF JURISPRUDENCE., Vol. 33, 123- 159 (1988). This article was adapted from the presentation by this writer to the International Conference on the Holocaust and Genocide, Tel-Aviv, Israel, June 1982.
85The full text of this Opinion, Daas Torah, was published in the July 20 1995 edition of THE JERUSALEM POST, p. 3.
88On the very same day that he signed the Declaration of Principles in 1993 (Oslo I), Yasser Arafat addressed the Palestinian people on Jordan television, assuring them that the agreement was nothing more than the implementation of the 1974 PLO Plan of Phases, a 10-point scheme for the incremental destruction of the State of Israel. The first stage, said Arafat, is "the establishment of a national authority on any part of Palestinian soil that is liberated or from which the Israelis withdraw." (See "Solid Paper Facts," editorial, THE JERUSALEM POST, International Edition, week ending October 7 1995, p. 10). The same assertion was repeated by Chairman Arafat after the signing of Oslo II. (Id.) These assertions, when considered together with Israel's peremptory right to endure, its peremptory obligation to punish terrorist crimes and the PLO's persistent breaches of all agreements with the Jewish State, obligate prompt termination of the "Peace Process." For jurisprudential arguments in support of this position, see: Louis Rene Beres, "International Law Requires Prosecution, Not Celebration, of Arafat," UNIVERSITY OF DETROIT MERCY LAW REVIEW, Vol. 71, Issue 3, Spring 1994, pp. 569 - 580.
89The principles of international law recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal were affirmed by the U.N. General Assembly as AFFIRMATION OF THE PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED BY THE CHARTER OF THE NUREMBERG TRIBUNAL., adopted by the U.N. General Assembly., December 11, 1946, U.N.G.A. Res. 95(1), U.N. Doc. A/236 (1946) at 1144. This affirmation of 1946 was followed by G.A. Res. 177 (II) adopted by the U.N. General Assembly, November 21, 1947, directing the U.N. International Law Commission to: (a) Formulate the principles of international law recognized by the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal; and (b) Prepare a draft code of offenses against the peace and security of mankind...." See: U.N. Doc. A/519, p. 112. The principles formulated are known as the PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER AND JUDGMENT OF THE NUREMBERG TRIBUNAL. Report of the International Law Commission, 2nd Session, 1950; U.N. G.A.O.R. 5th Session, Supp. No. 12, A/1316, p. 11.
90These obligations are found in The Nuremberg Principles, which were formulated by the United Nations International Law Commission at the request of the General Assembly. According to Principle I of the Nuremberg Principles: "Any person who commits an act which constitutes a crime under international law is responsible therefore and is liable to punishment." The entire matter of Arafat, Mahmoud Abbas, the PLO and "engagement" should be examined in light of this Principle. Where it is so examined, the essential rightfulness of civil disobedience/resistance in Israel becomes manifest.
91The earliest expressions of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728 - 1686 BCE); the Laws of Eshnunna (c. 2000 BCE); the even-earlier Code of Ur-Nammu (c. 2100 BCE) and, of course, the law of exact retaliation or lex talionis presented in three separate passages of the Torah. Hence, the Sharon Government's indifference to Nullum crimen sine poena in the matter of releasing Palestinian terrorists and negotiating "disengagement" is especially ironic because that principle has prominent Jewish origins.
92These obligations are peremptory norms (jus cogens) based on natural law. Vattel identifies the immutability of such norms, which is most relevant to the case at hand - the case of Israel: "Since, therefore, the necessary Law of Nations consists in applying the natural law to States, and since the natural law is not subject to change, being founded on the nature of things and particularly upon the nature of man, it follows that the necessary Law of Nations is not subject to change. Since this law is not subject to change, and the obligations which it imposes are necessary and indispensable, Nations can not alter it by agreement, nor individually or mutually release themselves from it." See: Emmerich de Vattel, THE LAW OF NATIONS, tr. of the edition of 1758 by Charles G. Fenwick, New York anbd London: Oceana Publications, reprinted in 1964, Introduction to Book I., 4.
93"The obligation of subjects to the sovereign," says Thomas Hobbes in Chapter XXI of LEVIATHAN, "is understood to last as long, and no longer, than the power lasteth by which he is able to protect them."
94See CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, adopted Dec. 9, 1948, S. Exec. Doc. O, 81st Cong., 1st Sess 7 (1949), 78 U.N.T.S. 277.
95In this connection, a particular irony must be noted: Earlier, it had been the State of Israel that had most conspicuously demonstrated meaningful support for the Higher Law norm, Nullum crimen sine poena. On this example, which refers to Israel's prosecution of Nazi war criminal Adolph Eichmann, see: Gideon Hausner, JUSTICE IN JERUSALEM (New York: Shoken Books, 1966). Indicted under Israel's Nazi and Nazi Collaborators Punishment Law, Eichmann was convicted and executed after the judgment was confirmed by the Supreme Court of Israel, on appeal, in 1962. See: Attorney-General v. Adolph Eichmann, 36 Int'l L. Rep., 5 (Isr. Dist Ct., Jerusalem 1961), aff'd 36 Int'l L. Rep., 277 (Isr. S. Ct., 1962).
96Under the Supremacy Clause of the United States Constitution, international law forms part of the law of the United States. U.S. Constitution, Art. VI. See also The Paquette Habana, 175 U.S. 677, 700 (1900); Tel-Oren v. Libyan Arab Republic, 726, F.2d 774, 781, 788 (D.C. Cir 1984)(per curiam).
97A petition to charge Yasir Arafat with terrorist crimes was submitted to Israel's High Court of Justice in May 1994. This petition, filed by Shimon Prachik, an officer in the IDF reserves, and Moshe Lorberaum, who was injured in a 1978 bus bombing carried out by the PLO, called for Arafat's arrest and for an investigation into his then upcoming entry into Gaza-Jericho. The petition noted that Arafat, prima facie, had been responsible for numerous terror attacks in Israel and abroad, including murder, airplane hijacking, hostage-taking, letter bombing and hijacking of ships on the high seas. Significantly, the petitioners' allegation of Arafat's direct personal responsibility for terror attacks was seconded and confirmed by Dr. Ahmad Tibi, Arafat's most senior advisor: "The person responsible on behalf of the Palestinian people for everything that was done in the Israeli-Palestinian conflict is Yasir Arafat," said Dr. Tibi on July 13, 1994, "and this man shook hands with Yitzhak Rabin." See, Joel Greenberg, "Israelis Keep Arafat Aides Out of Gaza," THE NEW YORK TIMES, July 14, 1994, p. 1.
98The norms concerning such physical survival are so overriding that they include even the principle of anticipatory self-defense, the residual right of states to strike preemptively (subject to the constraints of humanitarian international law) in order to prevent annihilation. On this principle, with particular reference to Israel, see: Louis Rene Beres/Chair, PROJECT DANIEL: ISRAEL'S STRATEGIC FUTURE, Ariel Center For Policy Research, Israel, Policy Paper No. 155, 2004, 64 pp. (a special report to Prime Minister Sharon); Louis Rene Beres, SECURITY THREATS AND EFFECTIVE REMEDIES: ISRAEL'S STRATEGIC, TACTICAL AND LEGAL OPTIONS, Ariel Center For Policy Research, Israel, Policy Paper No. 102, 2000, 110 pp; Louis Rene Beres, ISRAEL'S SURVIVAL IMPERATIVES: THE OSLO AGREEMENTS IN INTERNATIONAL LAW AND NATIONAL STRATEGY, Ariel Center For Policy Research, Israel, Policy Paper No. 25, 1998, 74 pp; Louis Rene Beres, "Israel and the Bomb," INTERNATIONAL SECURITY (Harvard), Vol. 29., No. 1., Summer 2004, pp. 1 - 4; Louis Rene Beres. "Reconsidering Israel's Destruction of Iraq's Osiraq Nuclear Reactor" (with COL/IDF Res. Yoash Tsiddon-Chatto), Menachem Begin Heritage Center, ISRAEL'S STRIKE AGAINST THE IRAQI NUCLEAR REACTOR 7 June 1981, Jerusalem, Israel, September 2003, pp. 59 - 60; Louis Rene Beres, "The Newly Expanded American Doctrine of Preemption: Can It Include Assassination," DENVER JOURNAL OF INTERNATIONAL LAW AND POLICY, Vol. 31, No. 2., Winter 2002, pp. 157 - 177; Louis Rene Beres, "Israeli Nuclear Deterrence," MIDSTREAM, February/March 2001, Vol. XXXXVII., No. 2, pp. 10 - 12; Louis Rene Beres, "In Support of Anticipatory Self-Defense: Israel, Osiraq and International law," CONTEMPORARY SECURITY POLICY., Vol. 19, No. 2., August 1998, pp. 111-114; Louis Rene Beres, "Israel, Iran and Preemption: Choosing the Least Unattractive Option Under International Law," DICKINSON JOURNAL OF INTERNATIONAL LAW, Vol. 14, No. 2., Winter 1996, pp. 187 - 206; Louis Rene Beres, "The Iranian Threat to Israel: Capabilities and Intentions," INTERNATIONAL JOURNAL OF INTELLIGENCE AND COUNTERINTELLIGENCE, Vol. 9., No. 1., Spring 1996, pp. 51 - 62; Louis Rene Beres and Yoash Tsiddon-Chatto, "Reconsidering Israel's Destruction of Iraq's Osiraq Nuclear Reactor," TEMPLE INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Fall 1995; Louis Rene Beres, "Power, Preemption and the Middle East Peace Process," MIDSTREAM, Vol. XXXXI, No. 9., December 1995, pp. 2 - 4; Louis Rene Beres, "Preserving the Third Temple: Israel's Right of Anticipatory Self-Defense Under International Law," VANDERBILT JOURNAL OF TRANSNATIONAL LAW, Vol. 26, No. 1, April 1993, pp. 111-148; Louis Rene Beres, "After the Gulf War: Israel, Preemption and Anticipatory Self-Defense," HOUSTON JOURNAL OF INTERNATIONAL LAW, Vol. 13, No. 2., Spring 1991, pp. 259 - 280; Louis Rene Beres, "Striking `First': Israel's Post Gulf War Options Under International Law," LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL, Vol. 14, Nov. 1991, pp. 10 - 24; Louis Rene Beres, "Israel and Anticipatory Self-Defense," ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Vol. 8, 1991, pp. 89 - 99; Louis Rene Beres, "After the Scud Attacks: Israel, Palestine and Anticipatory Self-Defense," EMORY INTERNATIONAL LAW REVIEW, Vol. 6, No. 1, Spring 1992, pp. 71 - 104; Louis Rene Beres, "Israel, Force and International Law: Assessing Anticipatory Self-Defense," THE JERUSALEM JOURNAL OF INTERNATIONAL RELATIONS, Vol. 13, No. 2, 1991, pp. 1 - 14; and Louis Rene Beres, "Striking Preemptively: Israel's Post Gulf War Options Under International Law," in ARMS CONTROL WITHOUT GLASNOST: BUILDING CONFIDENCE IN THE MIDDLE EAST, a special publication of the Israel Council on Foreign Relations, pp. 129 - 160 (1993). For more specific examinations, also by this author, of assassination as a potentially permissible form of anticipatory self-defense, see: Louis Rene Beres, "On Assassination as Anticipatory Self-Defense: The Case of Israel," HOFSTRA LAW REVIEW, Vol. 20, No. 2, Winter 1991, pp. 321 - 340; Louis Rene Beres, "Assassinating Saddam Hussein: The View From International Law," INDIANA INTERNATIONAL AND COMPARATIVE LAW REVIEW, Vol. 13, No. 3., 2003, pp. 847 - 869; Louis Rene Beres, "Assassination and the Law: A Policy Memorandum," STUDIES IN CONFLICT AND TERRORISM, Vol. 18, No. 4., October/December 1995, pp. 299 - 316; and Louis Rene Beres, "Victims and Executioners: Atrocity, Assassination and International Law," CAMBRIDGE REVIEW OF INTERNATIONAL AFFAIRS, Cambridge, England, Fall 1993, pp. 1 - 11.
99Regarding the normative obligation to punish, see: RESOLUTION ON PRINCIPLES OF INTERNATIONAL COOPERATION IN THE DETECTION, ARREST, EXTRADITION AND PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES AND CRIMES AGAINST HUMANITY, G.A. Res. 3074, U.N. GAOR, 28th Sess., Supp. No. 30, at 78, U.N. Doc. A/9030 (1973). Other resolutions affirm that a refusal "to cooperate in the arrest, extradition, trial and punishment" of such persons is contrary to the United Nations Charter "and to generally recognized norms of international law." See G.A. Res. 2840, U.N. GAOR, 26th Sess., Supp. No. 29 at 88, U.N. Doc. A/8429 (1971). See also G.A. Res. 96, U.N. GAOR, 1st Sess., pt. 2 at 188, U.N. Doc. A/64 (1946). As to the responsibility of states toward Geneva Law in particular, Common Article 1 of the Geneva Conventions addresses the obligation of all signatories "to respect and to ensure respect" for the Conventions "in all circumstances." See GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR, Aug. 12, 1949, Art. 1, 6 U.S.T. 3516, 3518, 75 U.N.T.S. 287, 288.