OPPOSING BARAK, SAVING ISRAEL
By Louis Rene Beres
[October 18, 1999] As the Prime Minister prepares for further Jewish withdrawals from Judea and Samaria - and possibly also from the Golan Heights and South Lebanon - tens of thousands of Israelis now correctly recognize Barak's ill-considered policies as a Final Solution to the Israel Question. Not surprisingly, these citizens of a rapidly disappearing Jewish State are joining together in necessary and sustained opposition to these policies. Whatever its particular expression, this opposition will soon take the form of what is generally known as civil disobedience.
Although Prime Minister Barak can be expected to denounce such forms of opposition, civil disobedience does have a long and distinguished tradition in both law and democratic theory. Moreover, the roots of this tradition lie plainly in Jewish Law. It follows that before Israeli public authorities and the Israeli Left combine to denounce "lawlessness," some informed understanding of civil disobedience must be disseminated. It is with this in mind that I offer the following information:
From its very beginnings, Jewish law has been viewed as an expression of God's will. Biblically, the law is referred to as the "word of God," never of humankind. God is the sole authentic legislator, and righteousness lies in observance of His law. Moreover, 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 God. All transgressions of the law were consequently offenses against God. The idea that human legislators might make law independently of God's will would have been incomprehensible. Indeed, as God 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."
In the Jewish tradition, the principle of a Higher Law is not only well-established; it is the very foundation of all legal order. Where the law of the state stands in marked contrast to this principle, it is altogether null and void. In certain circumstances, such contrast positively mandates opposition to the law of the state. Here, what is generally known as "civil disobedience" is not only lawful, but genuinely law-enforcing.
What sorts of circumstances are we describing? Above all others, they are circumstances that place at existential risk the very survival of the state. In such circumstances, which have in fact already been identified in an Halachic Opinion issued by Prominent Rabbis in Eretz Yisroel Concerning Territorial Compromise, the matter is one of Pikuach Nefesh and it demands apt forms of resistance. Israel cannot endure strategically without the heartlands of Judea and Samaria. As the Torah is a "Toras Chaim," a Torah of life, Jewish authorities in the State of Israel are "forbidden, under any circumstance," to transfer Jewish land to Arab authorities.
The writer Hillel Halkin, fearing that the state of the Jews might one day be ruled by "Hebrew-speaking Gentiles" (a fear already widespread among American Zionist thinkers like Maurice Samuel and Ludwig Lewisohn) once wrote: "I do not believe that a polity of Israelis who are not culturally Jews, whose roots in this land go no deeper than thirty years and no wider than the boundaries of an arid nation-state, has a future in the Middle East for very long. In one way or another...it will be blown away like chaff as though it never were, leaving neither Jews nor Israelis behind it." And in a more recent essay the same writer observed that the actual hatred for Judaism of a very large portion of Israeli intellectuals, including those who now create a theoretical legitimacy for Barak government policies, has become a hatred of Zionism.
Halkin's fears were and remain well-founded. Under the Rabin and Peres governments, Israel began its transformation not only into a polity that was more and more detached from cultural Judaism, but into one that positively undermined both Judaism and Zionism. With the election of Ehud Barak, this transformation has essentially been completed. With the election of Barak, hundreds of thousands of Israelis are delighted that Israel has now become a "normal" nation and that being Jewish need no longer be a source of personal embarrassment. With Barak, Jews will soon begin a return to the Diaspora.
For so many Israelis, the Jewish future lies in Los Angeles. Why care about Jerusalem? We always have the internet.
The right of sovereignty, in all states, 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 Barak government protect Israel's citizens? Clearly, Oslo is the mother of "Palestine," and with Barak's plan for additional surrenders of land, Oslo will soon become the mother of all Middle Eastern wars. About to be deprived of its remaining strategic depth, Israel will become an irresistibly tempting object for aggression by certain enemy states. These temptations will be enlarged if Israeli forces leave South Lebanon. In view of what is already known about enemy state nuclearization, and about ballistic missile developments in these states - especially Iraq, Iran and Syria - aggression might even come to Israel as unconventional war.
Barak also endangers Israel's survival by his planned acquiescence to Syria on the Golan Heights. Recalling the words of four distinguished Israeli (res.) generals: "Israel's presence on the Golan Heights constitutes the optimal strategic balance with Syria and insurance against a massive Syrian attack. The IDF's proximity to Damascus is also a guarantee against a Syrian missile launch into Israel's rear. Any change in this balance would lessen Israel's deterrent against potential Syrian aggression and jeopardize the quiet and stability that have characterized the Golan since 1974."
It is with these grave dangers in mind that Israeli opponents of Barak's planned surrenders will soon engage in massive civil disobedience. Recognizing that victimization by words can set the stage for subsequent victimization by force, they shall soon seek, perhaps desperately, to "stop the machine" while there is still time. Will they be acting correctly?
To "stop the machine!" The phrase is directly out of 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/Wye Peace Process and soon-to-be magnified by Barak, he would urge, as he once did about policy deformations in this country: "Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn."
This is precisely what Israel's protestors MUST now seek, not to lend themselves to the insupportable risks of the Rabin/Peres/Netanyahu/Barak 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 punish terrorist crimes. Indeed, not only have Israel and the Palestinian authority effectively abandoned all pertinent jurisprudential obligations to seek out and prosecute Arab terrorists, they are still both releasing known terrorists from their respective jails. Certainly Barak will not be willing or able to put an end to such barbarism.
Israel's agreements with the PLO contravene the binding obligation to punish acts that are crimes under international law. Known formally as Nullum crimen sine poena, "No crime without a punishment," this requirement points unambiguously to the multiple acts of killing and torture ordered directly by Yasir Arafat and his lieutenants over these many years. To not only ignore this requirement, but to actually legitimize the criminality by making Arafat a "partner" in the Oslo/Wye agreements, is a violation of Principle I of the Nuremberg Principles. This means that Israel's citizens who now support and sustain the Oslo/Wye agreements are actually in violation of international law (and therefore of Israel's national law as well, which necessarily incorporates international law), while those who oppose this agreement within the proper bounds of civil disobedience are actually 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 Barak government should fully expect to be confronted with mounting protests. Were it not so confronted, citizens of that beleaguered state would have already consented to their own national dismemberment.
International law, which is based upon a variety of higher law foundations, including Jewish Law, forms part of the law of all nations. This is the case whether or not the incorporation of international law into national law is codified, explicitly, as it is in the Supremacy Clause (Article VI) of the United States Constitution. The government of Israel is bound by settled norms of international law concerning punishment of terrorist crimes and physical survival of the state. Where this government fails to abide by these rules, as is very much the case today, civil disobedience is not only permissible, it is required.
We began with a look at the Jewish Law bases of higher law and civil disobedience. Jewish law rests always upon two principles: the overriding sovereignty of God and the derivative sacredness of the individual person. Both principles, intertwined and interdependent, underlie the reasoned argument for civil disobedience in Israel. From the sacredness of the person, which stems from each individual's resemblance to divinity, flows the freedom to choose. The failure to exercise this freedom, which is evident wherever a response to political authority is merely automatic, represents a betrayal of individual legal responsibility.
Finally, we must 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 God in prayer without priestly intercessions. Hence, a fundamental goal of law must always be to encourage initiative, to act purposefully on behalf of improving both state and society. When this criterion is applied to impending instances of civil disobedience in Israel, it should be apparent that the protesting opponents of Barak's Final Solution, more than any other citizens of Israel, will be acting according to law.
LOUIS RENE BERES (Ph.D., Princeton, 1971) Professor of International Law, Department of Political Science, Purdue University 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's next book is titled FORCE, ORDER AND JUSTICE: INTERNATIONAL LAW IN AN AGE OF ATROCITY. E-mail Prof. Beres at: BERES@POLSCI.PURDUE.EDU