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ACPR
Policy Paper
No. 158
PRESERVING THE LAND AND PEOPLE OF ISRAEL
IN THE FACE OF “DISENGAGEMENT”:
OBLIGATIONS OF HIGHER LAW, INTERNATIONAL LAW
AND TORAH LAW
Louis René Beres
and
Paul Eidelberg
(ed.)
The Ariel Center
for Policy Research (ACPR) presents in this policy paper a combination of two
unique essays on the Israeli Government’s Disengagement Plan. The first essay
is the work of Professor Louis René Beres, a political scientist who is also
an expert in international law. The second essay is based on the extraordinary
erudition of one of the twentieth-century’s greatest Talmudic scholars and
Torah philosophers, the late Rabbi Dr. Chaim Zimmerman. This second essay has
been condensed and annotated by Professor Paul Eidelberg, a political
scientist who studied with Rav Chaim for many years. The combination of these
two essays provides the most comprehensive
and deeply informed
critique of the Disengagement Plan, a critique comprehensible and meaningful
to all Jews (secular or religious) as well as to all others who recognize
God’s eternal and immutable promise of Israel to the Jewish people.
The Disengagement
Plan entails the uprooting of some 10,000 Jews from their homes in Gaza and
Northern Samaria, and the turning over of this Jewish land to Israel’s
enemies. “Disengagement” was the central issue of Israel’s January 2003
national election. In that election, the Labor Party, the author of
disengagement, was overwhelmingly defeated by the Plan’s opponents, the Likud.
Nevertheless, less than a year later, Likud Prime Minister Ariel Sharon made
disengagement the centerpiece of his national policy and
forced it though the
Knesset despite its having been clearly rejected not only by the electorate
but also by a referendum he initiated in his own party.
The Disengagement
Plan has divided the nation to the extent of arousing fear of a civil war.
Religious as well as non-religious Jews oppose this plan. Israeli professors
of law and attorneys have shown that the plan violates domestic and
international law. Professor Beres will
comment instructively on the legal aspects of the
issue and will also show, in a scintillating display of scholarship, how
disengagement violates the Higher Law doctrine of Western civilization, which
originates in the Bible of Israel. However, to fully appreciate how and why
the Disengagement Plan violates Jewish law, (Halacha), the masterful
erudition of the late Rabbi Dr. Chaim Zimmerman is necessary. The ACPR trusts
that secular and religious readers will be enlightened by both of the essays
in this policy paper, and that this
essential fusion of perspectives will remind Israelis of their true
obligations, as Jews and as citizens of the most persistently endangered state
on planet Earth.
Arieh Stav
Director, ACPR
Binyan Halacha (Construction of the
Law): A Treatise that Resolves Apparent Contradictions Between the RAMBAM (Maimonides)
and the Gemara (Hebrew);
Agan Ha`Sahar: A Treatise on Various
Astronomic Problems in Jewish Law with Particular Reference to the
International Date Line in Relation to the Sabbath and Other Holidays
(Hebrew);
Torah L’Yisrael: Essays on the State,
Society, and Redemption of Israel (Hebrew and English).
English Works:
Torah and Reason: A Treatise on the Validity of
Torah in the Modern Scientific World;
Torah and Existence: A Treatise on the Torah as
the Only Comprehensive Clarification of Reality and Truth.
CONFRONTING “DISENGAGEMENT”:
ISRAEL, CIVIL DISOBEDIENCE AND THE HIGHER LAW
Louis René
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.
I
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 BCE, entered into
later Stoic philosophy, and described one universal and rational law.
In 442 BCE,
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 obligatory.33 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”.
II
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 for 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
III
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,72
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.
IV
“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
willful 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 UN 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 encompassing what are now the
states of Jordan and Israel, including Judea/Samaria and Gaza. Present-day
Israel, including Judea/Samaria and Gaza, comprises only 22% 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
20 years after Israel’s entry into the community of nations, the Jewish state
– as a result of its stunning military victory over Arab aggressor states –
gained unintended control over Judea/Samaria and Gaza. Although the
inadmissibility of acquisition of territory by war had already been enshrined
in the UN 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 UN Security
Council Resolution 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.
* * *
Disengagement is
unacceptable for Israel at all principal levels of legal appraisal:
international law; Higher Law and Torah law. (It is also unacceptable under
Israel’s own municipal law, which is interwoven with international law, Higher
Law and Torah law.) The following essay in this Policy Paper – an elucidation
by Prof. Paul Eidelberg of Dr. Chaim Zimmerman’s “The Prohibition of
Abandoning Land in Eretz-Yisrael” – is essential to fully understanding
the soon-to-be irremediable errors of Sharon’s suicidal surrender program.
Drawn from Rav Chaim’s 10,000-word halachic discourse, it serves to
remind the reader that opposition to disengagement is founded upon the most
venerable and immutable principles of jurisprudence and justice. As
disengagement places the entire State of Israel in a condition of pikuach
nefesh, a situation so precarious that Israel’s very existence is
imperiled, Rav Chaim’s great erudition is profoundly important here. In this
connection I am especially grateful for the efforts of my friend and coauthor,
Prof. Paul Eidelberg, a distinguished scholar in his own right who provides
the reader a rare and learned fusion of political philosophy with Torah
scholarship.
Endnotes
|
1 |
There 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. |
|
2 |
In 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”. |
|
3 |
In 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). |
|
4 |
Surely 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 René Beres, “On Hamas
‘Freedom Fighters’: The View From International Law”, Midstream,
Vol. L, No. 1, January 2004, pp. 8-10; Louis René Beres, “‘Strategic
Balance’ in the Middle East: An Injurious Concept”, Midstream, Vol.
XXXXVII, No. 5, pp. 4-6; Louis René Beres, “Before the ‘Real’ Terror”,
Midstream, Vol. XXXXVII, No. 8, December 2000, pp. 4-5; Louis René
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
René 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 René 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 René 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 René 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 René 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. |
|
5 |
Oslo 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. |
|
6 |
Regarding 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, p. 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 René 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
René 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
René 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 René 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 René 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 René 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 René Beres, “International Law Requires Prosecution,
Not Celebration, of Arafat”, University of Detroit Mercy Law Review,
Vol. 71, Issue 3, Spring 1994, pp. 569-580. |
|
7 |
See Edward S. Corwin, The “Higher Law” Background
of American Constitutional Law (1955); Alexander P. D’Entreves,
Natural Law: An Introduction to Legal Philosophy (1951). |
|
8 |
See US 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,
imperfect man’s most perfect rendering” of eternal law. See Rossiter,
preface to Corwin, supra, p. vi. |
|
9 |
The 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”). |
|
10 |
See John Locke, Two Treatises of Government 123
(T.I. Cook, ed., 1947). |
|
11 |
See The Declaration of Independence. |
|
12 |
See Julius Stone, The Province and Function of
Law (Cambridge MA: Harvard University Press, 1950), Chapter VIII,
“Natural Law”. |
|
13 |
Here, in the Deist view, Nature had “replaced” God
as the source for lawful behavior. |
|
14 |
Newton 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. |
|
15 |
See Stone, supra, Ch. VIII. |
|
16 |
See Locke, supra, p. 123. |
|
17 |
See The Bill of Rights. |
|
18 |
See US Constitution, Ninth Amendment. |
|
19 |
The 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.) |
|
20 |
See 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). |
|
21 |
A 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, p. 27 et seq. |
|
22 |
See 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). |
|
23 |
Plato’s theory, offered in the fourth century BCE,
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. |
|
24 |
Supra. |
|
25 |
See Corwin, supra, p. 7. |
|
26 |
Id. |
|
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. |
|
28 |
See 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, p. 9. |
|
29 |
Id. |
|
31 |
See Corwin, supra, p. 9. |
|
30 |
These terms are defined and discussed below. |
|
32 |
Spoken by Scipio in Bk. I of De Republica;
cited in Alexander P. D’Entreves, The Notion of the State 24
(1967). |
|
33 |
See Stone, The Province and Function of Law,
supra, pp. 224-230. Stone calls positive law “...the law actually
enforced by organized 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., p. 226) |
|
34 |
See Cicero, I De Legibus, cited in Corwin,
supra, p. 10; D’Entreves, supra, pp. 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, p. 216.) See also De
Legibus, Bk. i, c, vii; cited by Stone, supra, p. 216. |
|
35 |
See: 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. |
|
36 |
See: Id., p. 115. |
|
37 |
See Corwin, supra, p. 12. |
|
38 |
Id, p. 13. |
|
39 |
See D’Entreves, supra, p. 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
CE, 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.” |
|
40 |
See 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.) |
|
41 |
Thomas 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. |
|
42 |
See D’Entreves, supra, pp. 42-43. |
|
43 |
The 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. |
|
44 |
See Stone, The Province and Function of Law,
supra, Chapter VIII. |
|
45 |
See Corwin, supra, p. 17-18. |
|
46 |
Id., p. 19. |
|
47 |
See Stone, Human Law and
Human Justice, supra, pp. 64-68. |
|
48 |
Id. |
|
49 |
See Stone, Human Law and Human Justice,
supra, pp. 61-63. |
|
50 |
Id., pp. 65-68. |
|
51 |
Id. |
|
52 |
The 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.) |
|
53 |
This 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. |
|
54 |
Id. |
|
55 |
|
