Prof. Louis René BeresThe writer (Ph.D, Princeton, 1971) is emeritus professor of Political Science and International Law at Purdue University. He is the author of many books, monographs, and articles dealing with Israeli security matters, nuclear strategy and nuclear war.
Sometimes, tragedy and irony may arrive together. Now that it is reportedly back “on track,” the so-called Middle East Peace Process threatens Israel with additional dismemberment, and eventual disappearance.
Aware of these intolerable prospects, thousands of Israelis who are opposed to any further existential surrenders may soon prepare for an appropriate response to “Palestine.” Whatever its particular shape and expression, this "post-peace" response to a new Arab state, one that would be carved out of Israel's own still-living body, may take some recognizable form of civil disobedience.
To be sure, the Netanyahu Government, inexplicably confident in Palestinian compliance with pre-state agreements on “demilitarization,” will object strongly to any such tactics. Nonetheless, civil disobedience has a long and distinguished tradition in jurisprudence and democratic theory. In part, as the following argument will make clear, certain roots of this tradition actually lie in Jewish Law.
From its beginnings, Jewish law has been viewed as a manifestation of God's will. Biblically, the law is referred to as the "word of God,” never of humankind. God, therefore, is the sole authentic legislator, and righteousness necessarily lies in observance of His law. Moreover, for ancient Israel as well as for the ancient Greeks, the absence of righteousness is expected to place at risk the lives and fortunes of the entire community.
In ancient Israel, law was always regarded as the revealed will of God. All transgressions of the law were consequently offenses against God. The modern idea that human legislators might somehow make law independently of God's will would have been incomprehensible.
As God can be the only true legislator, the sole function of human authorities was to discover the extant law, and thereafter to ensure its proper application. According to the Talmud, “Whatever a competent scholar will yet derive from the Law, it was already given to Moses on Mount Sinai."
In the Jewish tradition, the principle of a Higher Law is not only well-established; it remains the core 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, what is generally known as "civil disobedience" is not only lawful, but genuinely law-enforcing.
Exactly what sorts of circumstances are we describing? Above all others, they are circumstances that place at grave risk the very survival of the state. In such circumstances, which were already defined in the widely-disseminated 1995 Halakhic Opinion, issued by Prominent Rabbis in Eretz Yisroel Concerning Territorial Compromise, the matter is one of Pikuach Nefesh (life-threatening situation, a halakhic principle, ed.), and demands apt forms of resistance.
Israel, it was duly recognized, cannot endure strategically without Judea, Samaria and the Golan. 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 still openly-genocidal Arab authorities.
For Israel, the likely worst-case scenario remains a “successful” outcome to the Middle East Peace Process.
The writer Hillel Halkin, fearing that the state of the Jews might one day be ruled by Hebrew-speaking Gentiles (a fear then 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."
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 may now create a theoretical legitimacy for current government surrender policies, has become a hatred of Zionism.
Halkin's fears remain well-founded. Earlier, under the Rabin/Peres governments, Israel began to be transformed not only into a polity that would be increasingly detached from cultural Judaism, but also into one that could distinctly undermine both Judaism and Zionism. Later, Prime Minister Ariel Sharon "disengaged" Israel from Gaza, a fateful decision that led directly to the creation of "Hamastan." Further likely transformations continue today, under Prime Minister Netanyahu.
Ultimately, in all states, the prerogatives of sovereignty must rest upon a believable assurance of protection. Where a state can no longer offer such an assurance, and especially where it deliberately surrenders such assurance, the critical basis of citizen obligation will 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 current government of Israel continue to protect its citizens? Clearly, in discernible increments, the Peace Process has continuously been transformed, for Israelis, into a Terror Process. Soon, if Washington still has its way, Judea and Samaria will join Gaza to become "Palestine." Here, critically deprived of its essential strategic depth, Israel will quickly become a more tempting object for aggression and terror by certain enemy states.
It is with these notable dangers in mind that Israeli opponents of the “Two-State Solution” shall eventually engage in protracted civil disobedience. Although the government in Jerusalem still instructs all citizens that the Palestinian Arabs in both Gaza and Judea/Samaria would be willing to coexist with a Jewish State, these Israelis understand that they are being misled. Acknowledging that victimization by words can readily set the stage for subsequent victimization by force, they will eventually seek, perhaps even with desperation, to "stop the machine" while there is still time.
To stop the machine. The phrase is directly out of Henry David Thoreau's classical explorations of civil disobedience. In his famous essay on the subject, the American transcendentalist spoke persuasively of such justifiable opposition as an essential act of "counter friction."
Confronted with recurrently dreadful harms of the sort now anticipated by alert Israelis, harms generated by an always- illusory Peace Process, he would urge, as he once did about policy deformations in the United States: "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 prospective protestors shall likely seek, not to lend themselves to the manifest wrongs of the impending Netanyahu government surrenders. Among these grievous wrongs are the government's final legitimization of a terrorist organization, and its corollary unwillingness to lawfully punish terrorist crimes. Not only are Israel and the Palestinian authority still abandoning their binding jurisprudential obligations to seek out and prosecute terrorists, they are both releasing known terrorists from their respective jails.
Israel's latest July 2013 agreement to free over 100 Palestinian terrorists contravenes the “peremptory” or irreducible obligation to punish acts that are crimes under international law. Known formally as Nullum crimen sine poena, "No crime without a punishment," this obligation points unambiguously to the multiple acts of killing and torture ordered directly by assorted Palestinian Arab authorities over many years. To not only ignore this requirement, but to actively legitimize the criminality, represents a core violation of Principle I of the Nuremberg Principles.
This means that Israel's citizens who now support and sustain the self-destructive Peace Process are potentially in violation of pertinent 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 potentially in support of both forms of law.
Today, such nuanced and informed views of law and civil disobedience in Israel, however counterintuitive or disturbing, warrant broader public understanding. Now embarked upon surrender policies that may threaten Israel's existence, while they simultaneously undermine authoritative expectations of justice, the Netanyahu government should soon expect to be confronted with mounting citizen protests. Were it not so confronted, citizens of that immutably beleaguered state could have already consented, inter alia, to their own national disintegration.
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 all settled norms of international law concerning punishment of terrorist crimes and physical survival of the state. And 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 core principles: the overriding sovereignty of God, and the derivative sacredness of each individual person. Both principles, intertwined and interdependent, underlie a well-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.
What are the likely costs of such a rejection? Above all, they include increased loss of life, and expanded human suffering. Failing to exercise their obligations as free citizens, Israelis who choose to stand by passively as the Netanyahu government proceeds with a terror process/war process, could become complicit in the tangible consequences of their betrayal.
Peaceful civil disobedience in Israel can save lives. This path does display the highest imperatives of free citizens in any free society. To the extent that it can stop and even reverse the Peace Process, it may reduce the number of Israelis who would otherwise die at the hands of Arab terrorists, and also those who might still perish as a result of increasingly probable aggressions by Arab/Islamic states. With regard to the probable casualties of Arab terrorists, these numbers are apt to expand, in conformance with the Netanyahu Government's latest criminal release.
There is a tangible benefit to civil disobedience in Israel. This is not merely an abstract matter of theory and jurisprudence. Rather, it is a distinctly flesh and blood matter of national self-defense, and human physical survival.
Philosophically, in utilitarian terms, we are speaking here of calculations that would compare the two essential options - civil disobedience vs. no civil disobedience - according to expected costs and benefits. Here it should be apparent to all that the Peace Process, which essentially represents a codified transfer of critical Israeli lands for unsupportable diplomatic promises, offers no measurable benefits, and numerous non-sustainable costs. This calculation should be easy enough to compute.
It is true, of course, that certain acts of civil disobedience could represent technical infractions under Israeli statutes or Israel's Basic Law, but such infractions would be necessary in order to support more important principles of Israeli law and Jewish justice.
In the United States, a traditional common law defense known as "necessity" (which has also been incorporated into certain criminal codes) permits conduct that would otherwise constitute an offense if the accused believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct. Transported to the Israeli context, where the greater public and private injury occasioned by the Peace Process might include terrorism, war crimes, crimes against peace, crimes against humanity, and genocide, a necessity-type defense could be appropriate and compelling.
This is the case even if Israeli law should recognize no explicit form of "necessity," because this law must recognize the higher-law principle from which the necessity defense derives. Insofar as the origins of the higher-law principle lie in ancient Jewish law, the argument for civil disobedience in Israel that is based upon "necessity" is especially suitable.
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 directly, without priestly intercessions. A fundamental goal of Jewish law must always be to encourage initiative, to act purposefully on behalf of rescuing and improving both state and society. When this salutary criterion is applied to expected instances of civil disobedience in Israel, it should become apparent that protesting opponents of the Peace Process, more than any other citizens of Israel, could be acting according to law.
For Israel, the likely worst-case scenario remains a “successful” outcome to the Middle East Peace Process. By following the twisting Road Map to “Palestine,” Jerusalem would willfully place itself in the path of an unmistakably dead-end cartography. Even now, in blatant contravention of formal Palestinian Authority (PA) negotiating positions, official maps of both the PA and Hamas still identify all of Israel as “Occupied Palestine.”
More than anything else, this recalcitrant identification is a de facto declaration of war against Israel. Recognizing this, Israel's citizens, from the mutually reinforcing standpoints of security policy and law, may soon embark upon peaceful forms of civil disobedience.
In the respected context of Jewish Law and democratic theory, their potentially indispensable job would be "to stop the machine."
1. See Jerusalem Megillah IV, 74d.
2. The full text of this Opinion, Das Torah, was published in the July 20, 1995 edition of The Jerusalem Post, p. 3.
3. See “ Letters to an American Jewish Friend: A Zionist’s Polemic” (Philadelphia: Jewish Publication Society, 1977), 199-200.
4. See Halkin’s “Israel Against Itself,” Commentary, 98 (November 1994).
5. The Talmud instructs that victimizing people with words is a serious transgression (Talmud, Tractate Bava Metzia, 58b).
6. According to Principle 1: “Any person who commits an act which constitutes a crime under international law is responsible therefore, and is liable to punishment.”
7. 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).
Louis René Beres (Ph.D., Princeton, 1971) lectures and publishes widely on Middle East security matters. His writings on Israel, military strategy, and jurisprudence appear regularly in many major newspapers and magazines, and also in more than a dozen major law journals. Professor Beres was born in Zürich, Switzerland, on August 31, 1945. He is the author of ten major books on international relations and international law, including Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago Press, 1980); and Security or Armageddon: Israel’s Nuclear Strategy (D.C. Heath/Lexington Books, 1986).