Perplexed, Am Seeking a Guide../..../..

A Jurisprudential Inquiry
By Louis Rene' Beres
Professor of International Law, Purdue University

I am perplexed! I need a guide. My confusion stems from the current political redefinitions of certain crimes under Israel's Basic Law. As I understand matters, virtually any remarks that are too openly critical of the Peres Government - remarks that might conceivably disguise some undisclosed intent to protest government policies - can now be interpreted as sedition or criminal incitement. What I don't understand, however, is this: How can recent public statements of other prominent Israelis that effectively delegitimize the Third Temple Commonwealth altogether be construed as permissible? How can these statements, which are altogether subversive on their very face, continue to be ignored?

I am a professor of international law. I ask these questions from the legal standpoint. I understand fully that democratic governments, decent governments - the kind of government Israel claims to be - do not manipulate their principal statutes to suit political exigencies of the moment. Yet, in Jerusalem, recent calls for Jews to arm Palestinian terrorists to protect Israel from Arab terrorism were not rejected at all. On the contrary, such calls, which push the envelope of legal permissibility as far as it can possibly be pushed, were completely ignored. Today, however, rabbis wearing T shirts that object to Israel's self-imposed annihilation are rounded up and arrested for subversive behavior.

Let me be more specific. On February 15, 1995, as reported by the JCSS BULLETIN No. 14 (May 1995), Maj. Gen. Danny Rothschild - who had served as coordinator of government activities in the territories - delivered the annual Simon Syrkin memorial lecture at TAU's Jaffee Center. According to Rothschild, again, as reported directly by the Jaffee Center BULLETIN, Arafat's early recruitment to the local police forces of men from Libya and Yemen was regrettable because these recruits "were not familiar with the language, the conditions of daily life, and the accepted rules of the game." Realizing that these Arabs "could not fulfil their role," said the general, Arafat then recruited additional forces from among the local population "who had carried out the Intifadah." The hope, for Arafat, was that these forces "would be more successful in dealing with the task of maintaining internal security."

What did the general have to say about Arafat's changed recruitment policy? As reported by the JCSS BULLETIN, Rothschild announced that "these local recruits are the ones that will be best able to carry out their dutuies." In his opinion, stated the BULLETIN, "mistakes that were made at the outset have been corrected, and the system is beginning to operate as it should."

What, exactly, was being said at this distinguished lecture? Clearly, a general of the army of Israel had stated that Israel's security could now be best served by Israeli cooperation with Palestinian terrorists with direct experience in killing Jews. Now, leaving aside the intrinsically nonsensical quality of Rothschild's professional "strategic analysis" (a quality that should be recognizable by anyone who has noted the greatly expanded incidence of anti-Israel terrorism since the distinguished lecture was offered), these statements could surely have been interpreted by any reasonable listener as active encouragement of anti-Israel terror. From the standpoint of sedition and criminal incitement, these statements represented a vastly more serious security threat to the Jewish State than anything ever uttered by any opponent of the illegal Oslo Accords. Indeed, when I first read the general's remarks in the JCSS BULLETIN, I was so stunned that I found it necessary to check with Jaffee and Rothschild directly about their accuracy. Significantly, my letters to various Jaffee scholars, to the director and to Rothschild himself were never answered.

My point here, however, is not to criticize General Rothschild or the Jaffee Center (it is already too late for constructive criticism in these quarters), but to clarify - jurisprudentially - the marked irrationality and inexcusable mutability of Israeli Government definitions of sedition/criminal incitement. Although the general and his supporters might argue that his recommendations, however preposterous intellectually, were at least consistent with Oslo expectations and with Israeli Government policy, these expectations were themselves illegal (I have written widely on this illegality elsewhere) and the policy was itself totally unlawful. Citizens of a Jewish State, in particular, should question the suitability of a policy where officers are "just following orders."

Under international law, every state has the right to protect itself from rebellion, insurrection, or sedition. But the laws that affirm such protection are not variable from one moment to the next. What is perplexing about present-day Israel is not merely the blatant politicization of pertinent law, a practice more characteristic of authoritarian governments, but also the ironically wilful indifference of government to statements that are authentically inflammatory. When a T shirt proclaiming opposition to agreements with a terrorist organization that is still sworn to Israeli's destruction is deemed "incitement," while an IDF general's remarks calling for more terrorists in the Palestinian security forces are ignored, there is good cause for perplexity.

I need a guide!

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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international law. His debate with Maj.- Gen. (Res.) Shlomo Gazit, a senior fellow at the Jaffee Center for Strategic Studies, apeared in the June/July issue of MIDSTREAM. Dr. Beres has recently published, with AMB. Zalman Shoval, an article in the VANDERBILT JOURNAL OF TRANSNATIONAL LAW titled: "On Demilitarizing a Palestinian `Entity' and the Golan Heights: An International Law Perspective." Next month, his "Reconsidering Israel's Destruction of Iraq's Osiraq Nuclear Reactor," co-authored with Col.(IDF/Res.) Yoash Tsiddon-Chatto - a former Chief of Planning for the IAF and former Member of Knesset - will appear in the TEMPLE INTERNATIONAL AND COMPARATIVE LAW JOURNAL.

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