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
../authors/
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 ../authors/, 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: ../authors/, “On Hamas
‘Freedom Fighters’: The View From International Law”, Midstream,
Vol. L, No. 1, January 2004, pp. 8-10; ../authors/, “‘Strategic
Balance’ in the Middle East: An Injurious Concept”, Midstream, Vol.
XXXXVII, No. 5, pp. 4-6; ../authors/, “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; ../authors/, “Israel, the ‘Peace Process’, and
Nuclear Terrorism: Recognizing the Linkages”, Studies in Conflict and
Terrorism., Vol. 21, No. 1, January 1998, pp. 59-86; ../authors/,
“After the ‘Peace Process’: Israel, Palestine and Regional Nuclear War”,
Dickinson Journal of International Law, Vol. 15, No. 2, Winter
1997, pp. 301-335; ../authors/, “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 ../authors/, “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: ../authors/, “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; ../authors/, “Israel’s
Freeing of Terrorists Violates International Law”, Journal of
Counterterrorism and Security International, Winter 1999, Vol. 5, No.
4, pp. 44-46; ../authors/, “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; ../authors/, “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 ../authors/, “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 |
The 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). |
56 |
See Corwin, supra, p. 61. |
57 |
Id. |
58 |
Id. |
59 |
See Thomas Jefferson, IV Works 362 (New York,
P.L. Ford, ed., 1892-99). |
60 |
J.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. |
61 |
See Corwin, supra, p. 81. |
62 |
Id. |
63 |
See 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. |
64 |
See Vattel, The Law of Nations (Washington
DC: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4. |
65 |
Id. |
66 |
See Sophocles, Antigone, supra.
|
67 |
See H.D. Thoreau, On The Duty of Civil
Disobedience (New York: New American Library, 1959). |
68 |
Id. |
69 |
Id. |
70 |
Id. |
71 |
Id. |
72 |
Id. |
73 |
In 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, US Senate, April 27, 1995, p. 18. |
74 |
Here 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. |
75 |
See: 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”). |
76 |
Jewish 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. |
77 |
One 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”. |
78 |
Here 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”. |
79 |
Two 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). |
80 |
Terrorism 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). |
81 |
See: Resolution on the Definition of Aggression.
Adopted by the UN General Assembly, Dec. 14, 1974. U.N.G.A. Res. 3314
(XXIX), 29 UN GAOR, Supp. (No. 31) 142, UN Doc A/9631 (1975), reprinted
in 13 I.L.M. 710 (1974). |
82 |
For 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). |
83 |
Regarding 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.” |
84 |
For a comprehensive assessment of the natural law
origins of international law by this writer, see: ../authors/,
“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. |
85 |
The full text of this Opinion, Daas Torah,
was published in the July 20, 1995 edition of The Jerusalem Post,
p. 3. |
86 |
Id. |
87 |
Id. A fuller elucidation of Pikuach Nefesh
will be found in the following discussion of Rav Chaim Zimmerman by
Professor Eidelberg. |
88 |
On 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 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. |
89 |
The principles of international law recognized by
the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal
were affirmed by the UN General Assembly as Affirmation of the
Principles of International Law Recognized by the Charter of the Nuremberg
Tribunal, adopted by the UN General Assembly, December 11,
1946, U.N.G.A. Res. 95(1), UN Doc. A/236 (1946) at 1144. This affirmation
of 1946 was followed by G.A. Res. 177 (II) adopted by the UN General
Assembly, November 21, 1947, directing the UN 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: UN 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; UN G.A.O.R. 5th Session,
Supp. No. 12, A/1316, p. 11. |
90 |
These 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. |
91 |
The 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. |
92 |
These 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 and London: Oceana
Publications, reprinted in 1964, Introduction to Book I, p. 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.” |
94 |
See 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. |
95 |
In 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). |
96 |
Under 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). |
97 |
A petition to charge Yasser 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
Yasser 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. |
98 |
The 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:
../authors//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); ../authors/, “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.; ../authors/, “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 René
Beres, “Israel and the Bomb”, International Security (Harvard),
Vol. 29., No. 1, Summer 2004, pp. 1-4; ../authors/. “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, June 7, 1981, Jerusalem, Israel,
September 2003, pp. 59-60; ../authors/, “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; ../authors/, “Israeli Nuclear Deterrence”, Midstream,
February/March 2001, Vol. XXXXVII, No. 2, pp. 10-12; ../authors/, “In
Support of Anticipatory Self-Defense: Israel, Osiraq and International
Law”, Contemporary Security Policy, Vol. 19, No. 2, August 1998,
pp. 111-114; ../authors/, “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
René Beres, “The Iranian Threat to Israel: Capabilities and Intentions”,
International Journal of Intelligence and Counterintelligence, Vol.
9, No. 1, Spring 1996, pp. 51-62; ../authors/ and Yoash
Tsiddon-Chatto, “Reconsidering Israel’s Destruction of Iraq’s Osiraq
Nuclear Reactor”, Temple International and Comparative Law Journal,
Fall 1995; ../authors/, “Power, Preemption and the Middle East Peace
Process”, Midstream, Vol. XXXXVII, No. 9, December 1995, pp. 2-4;
../authors/, “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
René 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; ../authors/, “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; ../authors/, “Israel and Anticipatory Self-Defense”,
Arizona Journal of International and Comparative Law, Vol. 8, 1991,
pp. 89-99; ../authors/, “After the Scud Attacks: Israel, Palestine
and Anticipatory Self-Defense”, Emory International Law Review,
Vol. 6, No. 1, Spring 1992, pp. 71-104; ../authors/, “Israel, Force
and International Law: Assessing Anticipatory Self-Defense”, The
Jerusalem Journal of International Relations, Vol. 13, No. 2, 1991,
pp. 1-14; and ../authors/, “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: ../authors/, “On
Assassination as Anticipatory Self-Defense: The Case of Israel”,
Hofstra Law Review, Vol. 20, No. 2, Winter 1991, pp. 321-340; Louis
René Beres, “Assassinating Saddam Hussein: The View From International
Law”, Indiana International and Comparative Law Review, Vol. 13,
No. 3, 2003, pp. 847-869; ../authors/, “Assassination and the Law: A
Policy Memorandum”, Studies in Conflict and Terrorism, Vol. 18, No.
4, October/December 1995, pp. 299-316; and ../authors/, “Victims and
Executioners: Atrocity, Assassination and International Law”, Cambridge
Review of International Affairs, Cambridge, England, Fall 1993, pp.
1-11. |
99 |
Regarding 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, UN GAOR, 28th Sess., Supp.
No. 30, at 78, UN 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, UN GAOR, 26th
Sess., Supp. No. 29 at 88, UN Doc. A/8429 (1971). See also G.A. Res. 96,
UN GAOR, 1st Sess., pt. 2 at 188, UN 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. |
Abandonment of Jewish Land
Introduction
Paul
Eidelberg
I. Urgently
Needed: The Erudition of HaGaon HaRav Dr. Chaim
Zimmerman
Prominent Jews in
Israel believe that the country is approaching civil war. The public is
profoundly divided over a government plan called disengagement. This plan
requires Israel to withdraw unilaterally from Jewish land, to uproot and
relocate its Jewish residents, and to surrender this land to Arabs.
Remarkably, even
rabbis are divided over the government’s disengagement plan, and Israel’s
highest military and intelligence officials have warned of its dire
consequences. Indeed, eminent military and political experts warn that
disengagement, quite apart from the danger of civil war, can lead to the
incremental demise of the Jewish state. Hence the present writer feels obliged
to bring to the general public’s attention a work of the world-renowned
Talmudic scholar and Torah philosopher, the late Dr. Chaim Zimmerman. As we
shall see, Dr. Zimmerman’s extraordinary erudition has a direct bearing on the
issue of disengagement and therefore on Israel’s survival.
* * *
I was privileged
to sit at the table of Rav Chaim almost every Friday morning for 18 years. Dr.
Zimmerman was widely known for his prodigious memory. The Babylonian Talmud
(the Bavli) as well as the Jerusalem Talmud (the Yerushalmi) and
literally thousands of other Hebrew tomes were stored in his memory as if his
mind were a giant computer. But unlike a computer, his was a creative mind. He
could interface Torah with science and philosophy as well as with politics and
thereby illuminate the Torah as the paradigm of reason and of how man should
live.
Hence it is with
profound reverence and diffidence that I venture to write an introduction to
his essay, “The Prohibition of Abandoning Land in Eretz-Yisrael”, which
appears in chapter 3 of his monumental work, Torah and Existence.1
There is precedence for this endeavor. It so happens that, with Rav Chaim’s
permission and supervision, I published a condensed version of chapter 1 of
Torah and Existence, which dealt with the concept of atchalta-degeula,
the beginning of (Israel’s) redemption.2 That
lengthy chapter, which was composed primarily for Torah scholars, relates the
controversy over Israel’s rebirth not only to the Written Torah, the Prophets,
and the Hagiographa, but also the Bavli, the Yerushalmi, the
Midrash, the Zohar, as well as the Rishonim (including such
luminaries as Rashi, the Rambam, and the Ramban), the Achronim (the
successors of the Rishonim), and more recent Torah masters. That same
chapter is perhaps the only systematic attempt to prove that the rebirth of
the State of Israel in 1948 confirms the existence of certain laws of history
governing the Jewish people.
I mention this
because certain rabbis oppose disengagement partly because they do not regard
the State of Israel – given its secular character – as a stage in Israel’s
redemption process, even though Dr. Zimmerman has refuted their position. Be
this as it may, it behooves these and other rabbis as well as the public in
general to study Dr. Zimmerman’s “The Prohibition of Abandoning Land in
Eretz-Yisrael”. Alas that I do not have Rav Chaim to guide me in this
attempt – once again – to condense and clarify his work in order to bring it
to a wider public, especially in this moment of Israel’s plight.3
Before doing so,
however, it will be necessary to elucidate the historical and political
context of the government’s disengagement plan, a euphemism for retreat from
Jewish land.
Disengagement is a
consequence of the Israel-PLO “Declaration of Principles” of September 13,
1993, commonly known as the “Oslo Agreement”. This agreement is based on the
principle of Israel giving land to the Arab inhabitants of Judea, Samaria, and
Gaza in return for peace. Those who crafted the agreement had in view the
establishment of an Arab state on this land. However, while Israel has given
the PLO – the Palestine Liberation Organization – control over most of this
land, the PLO has given Israel only a war of terror. Indeed, since September
2000, when the war exploded in all its fury, Arab terrorists have murdered and
maimed some 10,000 Jewish women, men, and children.
The Government’s
policy of disengagement ignores the deadly consequences of Oslo and its
charade of “land for peace”. The first stage of disengagement requires Israel
to withdraw unilaterally from Gaza and northern Samaria. Withdrawing from Gaza
alone means uprooting 8,000 Jews from their homes and farms, their schools and
synagogues. If this upheaval were not enough, the so-called security fence
indicates – as have government officials – that the same upheaval will
eventually befall most of Judea and Samaria, the heartland of the Jewish
people. Some 250,000 Jews would then be expelled to facilitate the
establishment of an Arab state. Such a state, to judge from its probable
rulers, would remain committed to Israel’s destruction if only because a
generation of Arab children has been indoctrinated to hate Jews and emulate
suicide bombers.
Disengagement was
the central issue of the January 28, 2003 Knesset elections. Prime Minister
Ariel Sharon and his Likud Party campaigned against disengagement – the
policy of the Labor Party. Labor suffered an unprecedented defeat in that
election, winning only 19 Knesset seats, while the Likud won 38, to which add
no less than 31 seats won by opponents of disengagement in other parties. It
thus appears that a large majority of the public opposed disengagement in the
January 2003 elections. Nevertheless, in December of that same year, Mr.
Sharon adopted Labor’s pro-disengagement policy. Nor is this all.
A few months later
Mr. Sharon initiated a referendum of Likud members on the issue and he
promised to abide by the outcome. The referendum took place on May 2, 2004,
with almost 100,000 party members participating. A stunning 60% voted against
disengagement. Mr. Sharon ignored the result. Indeed, he proceeded to impose
his disengagement plan on his cabinet by dismissing two opposing ministers.
One may therefore conclude that, contrary to (tendentious) polls, and despite
the power and paralyzing prestige of this prime minister, a substantial
majority of the public remained opposed to disengagement and what this
portends for Jews throughout Israel.4
How does the
Government justify disengagement? Israel’s political echelons
contend:
-
Evacuating 25
Jewish communities in Gaza and northern Samaria will enable Israel to retain
major settlement blocs in Judea and Samaria. This contention is based on
President George W. Bush’s letter of April 14, 2004, responding to Sharon’s
disengagement plan. The letter declared, “In light of new realities on the
ground, including already existing major Israeli population centers, it is
unrealistic to expect that the outcome of final status negotiations will be
a full and complete return to the armistice lines of 1949.” Spokesmen of the
Bush administration have denied Mr. Sharon’s optimistic if not tendentious
interpretation of this letter.
-
Evacuation of
Jews from the Gaza Strip will reduce friction with the Arab inhabitants and
bears with it the potential for improving their economy and living
conditions. However, virtually all the experts agree that the absence of
Jews will prove disastrous to Gaza’s economy.
-
Finally, the
Government contends that disengagement will save Jewish lives and lead to
peace. (Were it not for this contention, rabbis would not be divided over
disengagement, since many believe that the saving of Jewish lives –
pekuach nefesh – takes precedence over the retention of Jewish land, an
issue Dr. Zimmerman will clarify.) This last contention, however, has
actually been contradicted by the heads of Israel’s security echelons, Lt.
Gen. Moshe Ya’alon, IDF Chief of Staff, Maj. Gen. Aharon Ze`evi-Farkash,
head of IDF Intelligence, and Avi Dichter, Director of the Shin Bet
(General Security Service).5 Hence
ex-Deputy IDF Intelligence Chief, Maj. Gen.
(res.) Yaakov Amidror, concludes: “The Israeli government has not
succeeded in producing a single serious argument that can refute objections
[to disengagement] and justify the grave step that it is taking.”6
Given this bleak
assessment – and I have only touched the surface – countless Jews in Israel
see no compelling reasons for the Government’s surrender of Jewish land to
Arab terrorists, none that might allay their fears, dispel their moral
outrage, or justify the sacrifice of their homes, the splendor of once
desolate land, their close-knit communities, their Zionist ideals and
religious aspirations – the trampling on which may cause civil war.
The threat of civil
war in Israel cuts across the religious-secular divide. The conflict is not
simply between religious Zionists and left-wing secularists. Rabbis across the
religious spectrum are divided on the issue. Some have called upon soldiers to
disobey orders to evacuate Jews from their homes in Gaza. Other rabbis, though
opposed to withdrawal from any part of Judea, Samaria, and Gaza, have rejected
such disobedience. Meanwhile, legal experts in Israel have argued that the
Government’s withdrawal plan, in particular the uprooting of Jews from their
homes, violates domestic and international law.7
Numerous religious and secular Jews have therefore expressed the intention to
engage in civil disobedience to defeat this plan. Accordingly, the Government
has trained thousands of soldiers to forcefully evict such Jews and herd them
into detention camps.
Complicating
matters, the Likud-led Government lost its Knesset majority when its coalition
partners resigned from the cabinet over disengagement. To remain in power, the
Government had to depend on the support of the opposition Labor Party.
Accordingly, despite calls for new Knesset elections, Prime Minister Sharon,
on January 6, 2005, formed a slim 64-member national unity government with
Labor together with United Torah Judaism. By so doing, he nullified the
January 2003 election and thereby made a mockery of democracy.
Here I must pause
and request the reader’s acute attention. United Torah Judaism, having five
Knesset Members (MKs), holds the balance of power in the Government. UTJ
consists of two haredi or ultra-Orthodox factions, Degel Hatorah and
Agudat Yisrael. UTJ received permission from its Council of Sages to join the
secular Likud-Labor coalition on a three-month trial basis to see whether the
coalition agreements concerning haredi education and religious services
would be upheld. Only eight of the 15 members of that Council ruled on whether
UTJ should join this disengagement-dominated government, and of these only six
approved. What is more, when, on a previous occasion, the Knesset voted for
disengagement, Degal Hatorah’s spiritual leader, Rabbi Shalom Yosef Elyashiv,
advised UTJ to abstain, whereas Agudat Yisrael’s spiritual leader, the Gerer
Rebbe, advised UTJ to vote against disengagement. Given the divergent opinions
of such influential rabbis on this life-and-death issue, the erudition of a
Torah giant like Dr. Chaim Zimmerman becomes all the more relevant, indeed,
vital.
One related
point needs to be emphasized. Many religious Jews have advocated a national
referendum on disengagement. However, to support a referendum on whether
Jewish land should be surrendered to non-Jews may not be consistent with
Jewish law and therefore a compelling reason to consult Dr. Zimmerman’s essay
on “The Prohibition of Abandoning Land in Eretz-Yisrael”.
The Prohibition
of Abandoning Land
in Eretz-Yisrael
Chaim Zimmerman
Edited and Annotated by Paul Eidelberg
I. Prologue: Insiders and Outsiders
The Torah
can be understood only from its own premises
and principles. For the insider,
the laws of the Torah
– the Halacha – constitute a rational and logical system.8
This system will not be understood by outsiders, by those who regard the Torah
as one among a number of diverse religions.
The Torah-system is not a subset or
particular exemplification of some general philosophical category or of any
sociological theory concerning the religions and ethical ideas of mankind. The
concepts and laws of the Torah are sui generis.
When outsiders of
the Torah, be they philosophers, scientists or other laymen, express their
opinions on what the halacha is or should be on some specific issue,
they fail to penetrate the profound truths of Torah. Their errors underlie
most arguments concerning the issue of separation of state and religion.
They overlook the purpose of the Torah, which is to establish a people of
kedusha, a concept that has no logical relation to the secular or gentile
understanding of state and religion. The divine-like concept of kedusha
renders a Torah-society more advanced in rational freedom and creativity than
any democratic society. As anyone learned in the Talmud knows, a Torah-society
excels in logical reasoning and understanding, in law and justice, in ethics
and kindness.9
Just as a
Torah-society differentiates itself from the secular democratic state, so it
differentiates itself from the religious authoritarian state. The claim that a
Torah-society involves religious coercion
has no validity. It is a myth spread by shallow secularists who
mistakenly classify the Torah as a religious creed based on faith as opposed
to reason – as something subjective or personal, hence to be separated from
public law.10
However,
for an individual to relate his own opinions and sentiments to the Torah
without understanding Torah-principles and logic, and to demand that the
supposed-to-be Jewish State of Israel conform to his predilections, is the
same as demanding a mathematician to abandon mathematical logic and adjust his
logical equations to a layman's fancies.
The failure to make
the distinction between insiders and outsiders of the Torah underlies all the
controversies by writers on both sides of
the issue of separation of state and religion, as well as other vital issues
such as giving away Jewish land to non-Jews.
For the insider of Torah, the question of giving away shtachim (parts)
of Eretz-Yisrael
to non-Jews for political or other reasons obviously falls under the rubric of
the Halacha.
The insider understands that the status of any part of Eretz-Yisrael is
decided by the logical relationship among the concepts and laws of the Torah.
Subjectivity has no
place among those who master the
halacha
on yielding parts of Eretz-Yisrael to Gentiles. Dilemmas arise
not from the
complexity of the halacha, but from
the polemics of outsiders and laymen who are not masters of the halacha,
but who nonetheless feel free – especially in a democracy – to express their
subjective opinions on halachic
issues. They relate their own ideas and feelings to the halacha and
from there draw their own biased conclusions.
Before explaining the halacha in
question, a few preliminary words are
necessary
[In Israel no issue is so avoided and
obscured – often deliberately – as the logical and practical contradictions
between democracy and Judaism. Spinoza, who exalted democracy and scorned
Judaism, would be either amused or astonished by the many politicians, judges,
and even rabbis who allege or pretend that the two are compatible. (The
present writer has refuted this sophistry, as well as Spinoza’s contemptible
view of Judaism.11) I mention this here
because religious Jews, who piously denounce disengagement as undemocratic,
would be mystified if disengagement were approved in a national referendum.
But let us return to Dr. Zimmerman.]
Halachic
decisions have no logical relation to democracy. When the
Sanhedrin
deliberates on some issue, the decision accords with the judgment of
the majority. This is not a result of any democratic system or mode of
thought.
In the case of the Sanhedrin,
the judgment of the majority is reached by thorough examination of diverse
evidence and diverse opinions. The judgment of that majority carries moral
authority because it is more likely to be in accord with truth on matters of
law. In fact, because truth is the aim and criterion, the majority principle
in Torah jurisprudence is applicable only among equals in scholarship. (See
Yevamot, 14a.) Consistent therewith, there are numerous cases in Jewish
law when the conclusion of an outstanding individual jurist or scholar was
accepted against the rest of his colleagues. (See Berachot 37a,
Kiddushin 59b, Yevamot 108b, Gittin 15a, 47a.)
To further clarify the issue: If the
truth or falsity of some theory concerning subatomic processes were to be
decided by the vote of a scientific convention, the outcome would obviously
depend not on the will but on the reasoning of the majority. In
a democracy, however, what is decisive is not reason or truth but the will or
rights of the majority. Moreover, in a democracy,
we take the
opinion of the majority because it is assumed that all individuals are
equal regardless of their diverse lifestyles or occupations and despite
their
obviously unequal intellectual abilities.
The decision in any
democratic collectivity cannot be dictated by an individual or a
minority, even when the truth resides in the
latter. Furthermore, such are the vicissitudes in public affairs in a
democracy that the decision of a democratic
majority has less to do with the truth than with
the transient opinions of the people,
regardless of facts or reality.
And yet, if the notion of majority
rule is assimilated to the concept of probability, it can be rationally
applied in the context of science. Paradigm shifts aside, the agreement of
most scientists on a scientific issue is
usually closer to the truth than the opposed position of a single scientist.
In this context, however, what is relevant is not the will of these
scientists but their educated ability to observe and understand scientific
phenomena.
The same may be said of the
Sanhedrin, where the term rov (majority) is assimilated to the
concept of probability and thus ceases to be arbitrary. Of course, to say that
the majority opinion in the Sanhedrin is the truth, or more likely to
be so than the minority opinion, is to assume that all members of the
Sanhedrin possess more or less equal knowledge of Torah. But this
assumption is quite rational since the deliberations of the Sanhedrin
are based on the logical reasoning of qualified judges, not on the will of
random individuals. Its decision on a
particular issue represents the truth because it has been shown to follow logically
from the premises of the halacha as applied to the issue in question.
We see, therefore, that a majority decision of the Sanhedrin is
not a democratic decision – a matter of volition – but a rational
decision.
Only
a person ordained and certified and accepted by Klal-Yisrael
as a master of the subject has the right to render a halachic
decision – a psak-halacha – on
a question that concerns Klal-Yisrael.12
This is a very important principle of which
many laymen are not aware.
Moreover, in rendering a halachic
decision, a crucial distinction must be made
between halacha and
halacha-lema`aseh. In this context, halacha
means a theoretical decision on a
hypothetical problem comprehended by the Oral Law, the Torah
she-ba`al-peh. Halacha-lema`aseh
means a problem that requires immediate practical decision. The
question of giving away shtachim
appears, to many people, as an
immediate
practical issue. This is not so, as a clear and more comprehensive analysis
will indicate.
As shown in Chapter I of Torah and
Existence, Israel is only in the physical stage (geulat-haguf) of
its redemption (atchalta-degeula). This means that Israel has yet to
achieve its spiritual redemption (geulat-hanefesh). Its government is
not a Torah-government. Leaving aside the Supreme Court, whose rulings often
violate Jewish principles and values, the laws of the country are made in a
120-member Knesset whose
overwhelming majority are not Torah-people.
Consideration of halacha does not enter the
position they take on various issues. They
decide matters according to their
own personal
views or partisan interests, or perhaps according to certain principles of
democracy that foster permissiveness or a leveling of moral standards.
The Prime
Minister does not ask the
chachamim, the learned men of Torah, whether it is permissible to give
away shtachim. He does not commit himself to following the Torah and
its laws concerning that issue. Hence, the polemic about this question in the
Hebrew press is useless from the halacha-lema`aseh
or practical point of view. It is only a hypothetical question as to
whether a Torah-government may give away parts of the Land of Israel.
Nevertheless, this question may still
serve a practical purpose. There is a great difference between a state
conducted by halacha and a clerical state – a state in which
religion is used for political purposes. We see this, to some extent, in
Israel, where the government is composed
of diverse secular and religious parties and factions. Some use religion
merely to gain political power and
thereby advance their own partisan interests and political aspirations.
They use Torah not as an end in itself but
only as an instrument of politics, which makes their politics clerical. It may
be said, of course, that some want
to use politics as a means of promoting the influence of Torah in
Israel – as certain religious parties claim. In this context, the polemic
about shtachim is not futile. The question of giving away shtachim
can serve pragmatically for those who
use politics for the sake of Torah, as well as for
those who use the Torah for the sake of
politics or political considerations. But all this has nothing to do
with a pure halacha-decision, which is not affected by extraneous
factors, but only by purely logical
equations that follow from the
laws of the
Torah.
Even though Israel does not have a
Torah-government,
it is important to clarify the issue
of shtachim. Since the government is usually dependent on the
cooperation of religious parties, it may eventually see the practical
importance of the halacha on shtachim, and
incorporate the
logic of halacha in the rationale for Jewish possession of Eretz-Yisrael
as a whole.
The problem of shtachim
includes many aspects of halacha, of which four are relevant to the
present discussion. The first aspect is
the law of kibush-ha`aretz – of waging war and conquering
Eretz-Yisrael. The second
aspect is whether shtachim may be given away for political or
other reasons. The third aspect is whether the halacha of
pikuach nefesh – danger to life – is applicable to giving away
shtachim. The fourth aspect is whether
there is any difference in halacha between pikuach nefesh
of the yachid (the individual) and pikuach nefesh of the
tzibur (the community). The solutions
to all these questions depend on
pure halacha-logic and determinations
without any partisan or personal or other considerations. Like
any other halacha-problem, the
validity of the solution depends solely
on the reasoning and logical understanding of the halacha,
without other motivations. All this will be explained clearly in what follows.
Concerning the first aspect, the
mitzva of kibush-ha`aretz
– of waging war and conquering Eretz-Yisrael: regardless of
whether this is a mandatory war (milchemet-mitzva) or a
discretionary war (milchemet-reshut), the halacha is
clear. Since every war involves pikuach
nefesh, a war for kibush-ha`aretz
cannot be waged halachically without a king and the permission of the
Sanhedrin and a prophet, and without consulting the Kohane
Gadol (the High Priest).
Although the halacha concerning
a mandatory or discretionary war is beyond the scope of the present inquiry,
it should not be confused with the
halacha of pikuach nefesh, of self-defense. When any
one wages war to destroy Klal-Yisrael, or to obtain any part of Eretz-Yisrael, this situation belongs to the
subject of pikuach nefesh, of self-defense, which also falls
under the category of rodef (explained below). Thus, if an enemy
attacks Israel, Israel is halachically
required to use the most effective available means
to defend itself. The relation of the enemy
to Israel is identical to the
relation of a rodef to an individual: someone pursuing another to
murder him. The pursued person has a right, according to the
halacha, to use any means
to defend himself, even if he has
to kill the
rodef, the pursuer.
[Dr. Zimmerman’s above statement
regarding the halacha of pikuach nefesh contradicts the
Government’s policy of self-restraint vis-à-vis Arab terrorism. The
Government often refrains from employing the most effective weapons against
terrorist havens. Instead of destroying such havens by aerial bombardment, the
IDF engages in house-to-house fighting, losing Jewish lives in the process.
This policy of self-restraint, which violates every canon of military science,
reflects the weakness – to put it mildly – underlying the Government’s
disengagement plan, its retreat from Jewish land.]
It says in Exodus 6:8, “And I will
bring you to the land which I swore to give to Avraham, to Yitzchak and to
Yaakov, and I will give it to you for an
inheritance.” In the text of the
Torah it says “Venatati
oto lachem morasha.” The word venatati in
Hebrew relates to the word matana, a gift, and
the word morasha is
synonymous with the word yerusha,
inheritance.
There is a great difference in halacha between inheritance (yerusha)
and a gift (matana).
The halacha of yerusha
is that a relative – a son for example – inherits his father’s possessions and
they automatically belong to him. Even if he refuses them, he remains their
owner. Of course, he can give them to
someone else or he can mafkir (abandon) them, as one can give
away or abandon his own property. But he
cannot resign from his property by simply saying “I don’t want my
possessions.” In halachic terms, a
man cannot misalek himself, i.e. remove himself, from his possessions.
He can only do this through a kinyan – a legal act of transferring
possessions – or he
can publicly proclaim, “harei zeh hefker,” that his property is
abandoned.
As for a matana, a gift: If you
give a matana to some person and he refuses to
accept it, the gift is not valid, and he
does not acquire ownership. You
cannot force anyone to accept a matana. This contrasts with an
inheritance, which the heir receives
automatically, even against his will. Afterwards, he can dispose of it, as he
can
with his own
possessions.
It says in the
Yerushalmi, Baba Batra:
Reb Yochanan asks:
Since G-d promised us that He will
“give” Eretz-Yisrael to us as an “inheritance”, and since the
verse uses two different concepts – first it says venatati, which
means Eretz-Yisrael is a matana from G-d to
Klal-Yisrael,
and then it says morasha, which means it is an inheritance
to Klal-Yisrael – there appears to be here a contradiction of
terms, since matana and morasha are two different concepts in
halacha. In the language of the
Yerushalmi: “Im matana lama yerusha –
if it is a matana, why yerusha?
Ve`im yerusha lama matana – if it
is a yerusha, why matana?”
Answers Reb Yochanan:
“What we learn from this is that first G-d gave Eretz-Yisrael
as a matana and afterwards He gave it as a yerusha” [not
chronologically but conceptually].
Reb Oshia said: “In every place
where it says morasha (not yerusha) lashon-dihu, which
means that the inheritance is
expressed vaguely.” Then the
Yerushalmi asks: “It says morasha kehilat Yaakov
– Moshe commanded us the Torah,
the inheritance of the community
of Yaakov. Would you also say that this inheritance is
vague?” Answers the Yerushalmi:
“Yes, no situation is
vaguer than
this, since without toil one cannot receive and comprehend the Torah.”
The meaning of this Yerushalmi
is explained brilliantly by the Gaon,
Reb Eizel Charif (z”l) in his book, Noam Yerushalmi. The
Ketzot Hachoshen, in Choshen Mishpat, says that
even though the halacha stipulates that a man cannot misalek
(remove) himself from yerusha (his inheritance), a
bechor
(an oldest son) who inherits double can misalek himself from the extra
part of the yerusha because
the extra part which the eldest son receives in his inheritance is
called by the Torah, matana. And since it is
called matana, even though the yerusha is acquired
automatically, still it is as if a man were to acquire the extra part through
a legal transfer of property, and
therefore can misalek himself from the extra part of the
inheritance. This is one of the brilliant
chidushim (Novellae) of the Ketzot in
halacha,
which explains many complicated discourses in the Talmud.
The Noam
Yerushalmi brings proof to
the psak-halacha of the Ketzot from the Yerushalmi,
Kiddushin,
chap. 1, halacha 4, as well as from Gemaras in the Yerushalmi,
Baba Batra, Sota, Yevamot, and Ketubot.
(This is not the place to explain these
sugiyot – dialectical arguments – at length, which would require a
complete discourse on the subject. The advanced Talmudic
student, who is interested in understanding the logical subtleties
of the proof of this halacha, is advised to study in detail the
texts of
the Ketzot Hachoshen and the Noam Yerushalmi.)
Now the
Yerushalmi becomes clear. The Torah is called both a
matana and a morasha.
Since the Torah is a matana, a person can misalek himself from
it by not putting forth effort to acquire
it. Therefore, the Torah juxtaposes
the vague word morasha, and not yerusha, to the word
matana, to indicate that even though
the Torah is a matana, it is also a yerusha – but
a yerusha that comes through
effort
and not an automatic yerusha.
The same law is
applied to Eretz-Yisrael: it is both a matana and a yerusha.
Since Eretz-Yisrael is a
matana, from which one can misalek himself, it is also called a
yerusha, but one which is acquired
through action or effort, not an automatic yerusha. And so, what we
learn from the Yerushalmi, according to the explanation of the
Noam Yerushalmi, is that Eretz-Yisrael has the two
functions of matana and yerusha. From this point of view we
should not give away shtachim.
To misalek ourselves from parts of Eretz-Yisrael is to
reject the matana of
Hashem. No economic or social or
political cause can compensate for the value of Eretz-Yisrael
and its kedusha. And it is one of the
greatest sins to
refuse G-d’s chesed.
The great
Gaon, Reb Yonatan, the author of the famed book,
Urim Vetumim, writes
that the main sin of the Jews was their abandonment of
Eretz-Yisrael, their inheritance, and that their tshuva (repentance) in
the future will consist in not abandoning their inheritance in
the Eretz-Hakdosha – the Holy-Land.
We read in (the Prophet) Micha 5:9: “And it shall come to pass
on that day, says the L-rd, that
I will cut off thy horses out of the
midst of thee, and I will destroy thy
chariots.” Reb Yonatan explains
that it is known – here the word “known” refers to the obvious
sources of the halacha in the Talmud – that G-d will save the Jews from
the war of Gog and Magog after they go through many, many troubles, and
despite these troubles, they will not abandon Hashem and His
heritage, Eretz-Hakdosha. This will
be their fundamental tshuva because tshuva has to occur
in the same place and concern the same
act. The main sin of the Jews in the time of the Beit-Hamikdash
(the Temple) was their going down to Mitzraim (Egypt), as the Prophet
says “Woe is to those who
go down to Mitzraim for help.” From
this act came forth great sins, and this
is why their tshuva, in the future, will consist in not abandoning their inheritance, Eretz-Yisrael.
The reason for their going to
Mitzraim was to obtain many horses, as mentioned in
many places in the Tanach (the
Bible). That is why the Prophet says, “And it shall come to
pass on that day, says the L-rd, that I will cut off thy
horses out of the midst of thee, and I will destroy thy chariots.”
Even though you will not have horses in your land, nevertheless, you will not
again leave your inheritance and
become a yored (an emigrant) and go to Mitzraim. This will
constitute a perfect tshuva, because if horses (susim) were abundant in
Eretz-Yisrael, the Jews would have no reason to go to Mitzraim,
and then
the effort of
tshuva would not be genuine.
Here, the words “susim” and “Mitzraim”
are symbolic, as one who knows Tanach will understand. The
Gaon, Reb Yonatan Praeger, here reveals
the great sin of the Jews in the time of the
Beit-Hamikdash.
The Jews left Eretz-Yisrael with its kedusha and went to
look for economic status and mundane pleasures in other
places (as
many unfortunates do today).
Reb Yonatan clarifies the subject by
referring to this statement of Chazal (the Talmudic Sages): The elders
of Midian said to Bil`am (when he was going
to curse Yisrael), “Ami lo
rachavta asusa,” why didn’t you ride on a horse? The Gaon explains
brilliantly:
The elders of Midian told Bil`am, if
you want to curse the Jews, you should tempt them by riding [not a donkey
but] a horse, which was the status symbol of wealth,
power, and achievement in those days, as are today’s aircraft, missiles, and
rockets.
In other
words, tempt Jews
with what they foolishly believe will give
them prestige and power, so that they will sacrifice ruchniyut
(spiritual) for gashmiyut (physical) values, or the kedusha
of Eretz-Yisrael for materialistic
values.
The abandoning
or giving away shtachim of Eretz-Yisrael
for political or social or economic reasons is a terrible rejection
of the chesed-Hashem, of G-d’s
benevolence. This was the cause of the churban (the destruction of the
Temple) – mida keneged mida (measure for measure).
The rejecting
of Hashem’s favor is the
premise in the Torah-function of mida keneged mida. [As stated in
Chapter I of Torah and Existence, mida keneged mida is a basic
Torah-law discussed by the Tosefta in Mishna Sota. The
Tosefta is a 12th century halachik work that corresponds
in structure almost exactly to the Mishna.] The Tosefta in Sota
is the Torah-explanation of every episode in the
history of mankind, in the struggle for
survival from generation to generation. It clearly demonstrates
hashgacha-pratit – divine guidance in
history – and no rational mind can reject the
facts mentioned in the Tosefta. As a
basic Torah-law, mida keneged mida
operates not occasionally, but constantly in history,
whether one
accepts it or not.
The greatest chesed of
Hashem for Klal-Yisrael, for humanity, and for the briya
(creation), is Eretz-Yisrael and its kedusha, since Eretz-Yisrael
is the only place where all the taryag-mitzvot (the 613 mitzvot)
of the Torah can be fulfilled. As Rashi comments on the first word of the
Torah, Bereishit (In the beginning), G–d created the universe
bishvil hatorah u`bishvil Yisrael
shenikriu reishit – which
means, G-d created the universe for the Torah (since the Torah is
called His beginning) and for Yisrael
(whose system of kedusha can be fulfilled only in
Eretz-Yisrael).
That is why Eretz-Yisrael is the greatest chesed of Hashem,
both from the spiritual point of view and from
the physical point of view, since
Klal-Yisrael’s freedom, independence, and meaningful existence depends
on its possession of Eretz-Yisrael.
In galut (exile), the destiny
of the Jews was not and is not in their own hands. Every gentile nation
persecuted and tortured them. Since
Eretz-Yisrael is the greatest chesed of Hashem, for
Klal-Yisrael to reject this chesed by abandoning Eretz-Yisrael
could not but have the gravest consequences, in accordance with mida keneged mida: the churban, the galut
persecutions, the Holocaust. And now,
when there is no shibud-malchiyot (political subjugation), and when the
Jews have returned to Eretz-Yisrael, to give away shtachim for
political or other reasons is a rejection
of the greatest chesed of Hashem. It also represents an utter
lack of understanding of the present
situation as well as a failure to remember the state of
affairs of
Klal-Yisrael in the past.
Only recall how much
the Crusaders
sacrificed to reach Eretz-Yisrael [and compare those who now look
with envy on this rich land, and on Klal-Yisrael with genocidal
hatred]. Therefore [and especially now, when the State of Israel is more
powerful than its enemies], for Jews to give away parts of their precious
heritage, which they received through hashgacha-pratit, is not
only to reject the chesed of Hashem, but also to erase history
entirely [and commit the greatest folly]. Looking back upon their tortured
past and the rule of mida keneged mida, Jews should be filled with fear
to reject G-d’s chesed, since mida keneged mida is the most
formidable rule of the hashgacha-pratit in history.
Much has been written about the
question of giving away shtachim in
relation to pikuach nefesh, saving human life. Many
different opinions have been publicized
recently by rabbis and laymen as well as by political-religious leaders.
However, the halacha of pikuach nefesh is clearly explicated
in the minutest detail and is applicable to any situation. Its sources are
explicit from the time of Moshe
Rabbenu to the present, in the
Torah
she-ba`al-peh,
in the Rishonim and Achronim (the early and later rabbinic
masters), and in the poskim (decisers of the law).13 No
objective halacha-man can find here two different
opinions, unless his thinking is
subjective or exposed to emotional or political inclinations. Whoever
approaches the halacha of pikuach
nefesh according to the rules of logic, hence without
prejudice or wishful thinking,
will see
the truth clearly.
To explain this halacha, it is
necessary to set forth certain aspects of the
dinim
of pikuach nefesh – the laws concerning danger to human life.
In the Torah, in Bamidbar
(Numbers 35), we have the halacha of goel-ha-dam (avenger of
blood). If one kills any person beshogeg (unintentionally),
he has to go to one of the arei-miklat,
one of the assigned cities of
refuge. He stays there to avoid the goel-ha-dam – a
relative who seeks revenge. If the killer goes out from the city of
refuge, then, if the avenger kills him, he is
patur – exempt. The beit-din
(the court) will not punish the avenger. (Of course,
if the avenger kills him in the city of
refuge, he receives his proper
punishment.)
The Rambam says
in Hilchot Rotzeach that “a man who
killed someone unintentionally and was
exiled in the city of refuge, does not have
to go out from there at any time.” (Because if he leaves
the city of refuge, he puts himself in
danger of being killed by the avenger.) The Rambam emphasizes that “the
shogeg does not have to go out from
the city of refuge even to do a mitzva, for example, to be a
witness in monetary cases or even in cases involving capital punishment, or to
save someone from a fire or from
drowning in a river...” (This follows
logically from the halacha
that a man is not obliged to sacrifice himself in order to save
another man’s
life, since the value of every human life is equal.)
Emerging here is a most astonishing
rule of the halacha. The Rambam continues: “Even if the entire Jewish
nation needs his help, like Yoav the son of
Tzeruya, he still does not have to go out to endanger his life.” (This
halacha of the Rambam is taken from the
Talmud Yerushalmi, Makot.) We
clearly see from this halacha that the value of any individual
is infinite: a million individuals have no greater value than one individual.
This applies to the millions of people that constitute Klal-Yisrael.
[In Yesodei
Hatorah, chapter 5, halacha 1, the Rambam quotes
Leviticus 18:5 concerning the mitzvot of the Torah, “which if a man
perform he shall live by them”. The mitzvot were given so that one may
live by them and not die because of them.]
Accordingly,
in his subsequent discussion of the dinim of pikuach nefesh
in Yesodei Hatorah,
chapter 5, halacha 5, the Rambam confirms that danger to
human life docheh
kol-hatorah (sets aside the entire Torah) except for three
transgressions – idolatry, illicit sexual relations, and murder. He writes,
If gentiles
say: “Give us one of you to
kill, otherwise we will kill all of you,” they should all be killed and not surrender a single
soul of Yisrael to them. But if
they single out [a specific individual] and say: “Give us this
person or we will kill all of you,” if
he was guilty of a capital crime, like Sheva ben Bichri (see Samuel II,
chap. 20), they may surrender him.
However, if the person specified by the gentiles is not guilty of a capital
crime, they should allow themselves all to be killed rather than give over a
single soul. (The source of the Rambam’s psak-halacha is explicitly
stated in Yerushalmi Trumot 8:12.)
Not only does pikuach nefesh
set aside the whole Torah when the danger to life is a certainty, but also
safek pikuach nefesh – when there is a very low technical probability that
the danger to a person is life-threatening. In that case, he is allowed to
violate the Shabbat (or any other prohibition, except the three
previously mentioned). In short, when it comes to
pikuach nefesh, all prohibitions of the Torah are set aside, except “the three”.
Notice that the
halacha against sacrificing one person for the sake of the many follows
from one of those three prohibitions: murder.
Now, suppose Gentiles approach to wage
war against a town in Israel. The Rambam addresses this subject in Hilchot
Shabbat, chapter 2. There he quotes the Gemara in Eruvin
45a:
Rab Judah stated in the
name of Rab:
If foreigners besieged Israelite
towns, it is not permitted to sally forth against them and desecrate the
Sabbath...on their account... This, however, applies only where they came
for the sake of money matters; but if
they came with the intention of taking lives, the people are
permitted to sally forth against them with their weapons and to desecrate the Sabbath on their account.
Where the attack, however, was made on a
town that was close to a frontier,
even though they did not come with any intention of taking lives, but
merely to plunder straw or stubble, the people are permitted to sally forth
against them with their weapons and to
desecrate the
Sabbath on their account.
Said R. Joseph
b.
Manyumi in the name of R. Nahman:
Babylon is
regarded as a frontier town
and by this he meant Nehardea. R. Dostai of Bin made the following
exposition: What is the significance of the Scriptural text, “And they
told David saying: Behold the Philistines
are fighting against Keilah, and they rob the threshing floors.”
A tanna
taught:
Keilah was a frontier town and they
only came for the sake of plundering straw or stubble, for it is written, “And
they rob the threshing floors,”
and yet it is written, “Therefore David
enquired of the L-rd, saying,
‘Shall I go and smite these
Philistines?’ And
the L-rd said unto David: ‘Go
and smite the Philistines and
save Keilah.’”
The Rambam quotes this Gemara
and writes:
In every place, if bairn al iskei
nefashot – which means, if they want to kill Jews, or wage war, or
beleaguer a city without specifying any
intention –
the Jews are obliged to sally forth against them with their weapons and
violate the Shabbat.
(The preceding
does not contradict the aforementioned
halacha prohibiting the sacrificing of one for the many, since here no
person is specifically sacrificed, but rather, Jews are sallying forth to
defend other Jews from
Gentiles.)
This
halacha has nothing to do with the concept of milchemet-mitzva
or milchemet-reshut mentioned earlier, because here
we are dealing with defense.
Klal-Yisrael or a city must defend itself, and it is a mitzva for
an individual to help defend his
brother. This is defined in halachic terms as milchemet-hatzala,
a war of defense.
It belongs to the logical discourse or sugya of
pikuach nefesh.
As far as giving away shtachim
for pikuach nefesh, one has to know
whether it is more dangerous to yield or not yield shtachim, an
assessment that requires knowledge of all the logistics of defense as
well as facts about Israel’s political and international situation.14
According to
the concepts of halacha, it is definitely dangerous to
allow enemies near the borders of
Eretz-Yisrael. The danger is
proportional to the enemy’s proximity: the closer he is to Jewish shtachim,
settlements, or towns, the greater the danger to all the Jews who live in
Eretz-Yisrael. As the Rambam says in
Hilchot Avoda Zara,
chapter 4, halacha 4, “A border city
is never condemned as a seduced city – an ir handachat bisfar – lest
gentiles become aware of it, invade, and destroy the whole of Eretz-Yisrael.”
(The source of the Rambam is explicit in
Sanhedrin
16b.)
[The relevance of this halacha
to the evacuation of Gaza is obvious.]
It has been argued that, just as the
state of pikuach nefesh of a sick person must be determined by a
doctor, an expert in that person’s illness, so the pikuach nefesh of
Klal-Yisrael in Eretz-Yisrael
has to be determined by military experts. This argument is not valid,
and the analogy is only apparent, since the
halacha of pikuach nefesh in military affairs differs completely
from the halacha of pikuach nefesh in medical affairs.
In any
military situation,
non-Torah military experts will choose to
sacrifice a few Jews for the sake of many Jews, whereas, according to
the halacha, and as noted, the
pikuach nefesh of an individual
and of a community are on an equal
scale. Also, the military concept
of safety differs greatly from halacha. In military matters it may be
necessary to take into consideration
political and other factors which
may have consequences for pikuach nefesh in the future, whereas,
in most cases, the halacha determines pikuach nefesh according
to the present situation.
One should also bear in mind that when
a doctor determines the pikuach nefesh
of a sick person, there can be no
conflict between the halacha
and the medical decision, since the violation of
Shabbat permitted by that decision is committed by a Shabbat-observant
person. After receiving the expert’s opinion, he would act according to
the halacha.
Conversely, military experts not only
advise the government about the logistical situation, but regardless of their
military assessment, they must act according to the government’s
decision. As for the government, it does
not inquire about the halacha; it acts
according to its own judgment. Hence the halacha-man
cannot accept the government’s decision
dogmatically. He has to know exactly the military logistics as well as
the political and international situation to determine whether it is
really pikuach nefesh not give away
shtachim, or whether it will be
more dangerous to give away shtachim.
Only with such knowledge can he determine
which
alternative is halachically more dangerous.
[At this point it may be argued that
Israel must withdraw from Gaza and other parts of Eretz-Yisrael because
of international pressure, especially from the United States, on which Israel
largely depends for its arms. I have refuted this argument in a paper cited
below.15 Here it should be noted that it was
an Israeli government under Prime Minister Menachem Begin that initiated
the negotiations that led to the 1978 Camp David Accord, the first
international legal document that designated Judea and Samaria as the “West
Bank”. Moreover, the negotiations that culminated in the 1993 Israel-PLO
Agreement were initiated by Israeli politicians in contravention of a
1985 ordinance prohibiting any contact with the PLO. Those clandestine
negotiations, concluded by the government of Prime Minister Yitzhak Rabin in
1993, rehabilitated Yasser Arafat and legitimized his terrorist organization
now ensconced in Judea, Samaria, and Gaza. By 1998, then Foreign Minister
Ariel Sharon, contrary to his party’s long-established principles, advanced
the idea of a PLO-Palestinian state – this, more than two years before George
W. Bush became the first American president to call for the establishment of
such a state. And so it was with unilateral disengagement, a policy for
which Mr. Sharon sought and obtained President Bush’s endorsement before
he submitted that policy to Israel’s cabinet for approval. It has not been
American pressure so much as the folly and frailty but above all the
unfaithfulness of Israeli governments, epitomized by its policy of “land for
peace”, that underlie Israel’s retreat toward its pre-1967 borders, undoing
thereby the miracle of the Six Day War. Hence Dr. Zimmerman’s last statement,
In military
matters it may be necessary to
take into consideration political and
other factors which may have consequences for pikuach nefesh
in the future, whereas, in most cases, the halacha determines
pikuach nefesh according to the present situation,
while certainly correct, provides no
support for the aforementioned conduct of Israeli governments.]
[Only a minute portion of Dr.
Zimmerman’s discussion of this exceedingly complex halachic subject
follows.]
[Concerning the individual] the
Ramchal (Rabbi Moshe Chaim Luzzatto) provides a brilliant explanation in his
Mesilat Yesharim (The Path of the
Just). There he emphasizes the obstacles that sometimes prevent a
person from doing mitzvot, such as fear for his security or its
opposite, foolhardiness. The Sages in all
places have said that a man should be
especially attentive to his well-being and
not put himself in danger even if
he is righteous and a doer of good deeds. The
Torah states (Deuteronomy 4:15), “Be very watchful of
yourselves.” On the other hand, the Ramchal points out, “Our
Sages further state, when a mitzva is to be performed, know that there
is...appropriate fear and there is
foolish fear. There is confidence
and there is recklessness. The Lord blessed be He, has invested man with sound
intelligence and judgment so that he may follow the right path and
protect himself from...evildoers.”
The criterion by which to distinguish
between rational and irrational caution as to what may be a dangerous situation [for the yachid or
the tzibur] is deduced
from a general principle of halacha – again the principle of
probability (rov). Thus, in all situations
where we have to choose between two
alternatives, the halacha requires us to examine the evidence pointing
to the alternative having the greater probability of benefiting us. Even
though a possibility remains that that alternative may be harmful, to refrain
from choosing it would be a case of irrational caution. We must act according
to what is most evident. For example, on the question of whether
something is kosher or treif, the Gemara
says, if we do not observe a re`uta
(a defect),
we do not
assume it to be defective.
[An
oft-cited example of the probability principle is the town in which nine
butcher shops sell kosher meat and one sells non-kosher meat (Hullin
11a). Any meat found in the town is halachically kosher. Thus, unless
there is an observable defect, what determines the status of the meat is not
whether it was in fact ritually slaughtered but the halachic principle
of probability. This principle places in question the
government’s
self-restraint vis-à-vis Arab terrorists, a policy animated by fear of
the unseen – an exaggerated fear of possible sanctions resulting from adverse
world opinion (which is nothing more than ever-present but fluctuating
anti-Semitism). Not only has this fear-driven policy resulted in horrific
Jewish bloodshed, but as years of accumulated evidence indicate, it is
precisely the government’s retreat from zero tolerance for terrorism – which
means its tolerance of evil – that arouses contempt for Israel on the one
hand, and lends color of legitimacy to terrorism and the possibility of
sanctions on the other. The government’s irrational fear of unseen or
uncertain or perhaps even bearable sanctions has superseded the halachic
principle of probability.]
Where danger to
life may be involved, the
Gemara uses the expression, “heicha deshechiach
hezeka sha`ani” –
where there is a place of danger, the
situation [or how one should act] is
different [from other situations]. For instance, when a man has to walk a long
way to do a mitzva, he can depend on providence (hashgacha)
and be secure in his mind that nothing bad
will happen to him, because sheluchei
mitzva einan nizakin – no
evil happens to the agent of a
mitzva. However, the Gemara
says, in a place where there is shechiach-hezeka
– a probability of
danger, for example, where gangsters lurk or where dangerous animals prowl –
the halacha requires him to avoid that area.
The Ramchal
uses this halacha as a
criterion of yira – fear and caution with respect to danger. The
rule appears
in a general discussion about zeal – zerizut:
The type of
fear and caution or
self-protection regarding danger which is
appropriate, is that which grows out of the workings of wisdom and
intelligence. It is the type about which it is said (Proverbs
22:3), “The wise man sees evil and
hides, but the fools pass on and
are punished.”
[On the other hand] Foolish fear is a person’s desire to multiply
protection upon protection and fear upon fear, so that he makes a protection
for his protection and neglects Torah and Divine service.
The criterion by which to distinguish between the two fears and
cautiousness regarding dangerous situations is that implied in the statement
of our Sages of blessed memory (Psachim 8b): “Where
there is a routine probability of danger, it is different.” That
is, where there is a recognized
possibility of injury [think of the frequency of terrorist acts against Jews
in Israel], one must be
heedful, but
where there is no apparent danger, one should not be afraid.
Along the same lines it is said (Chulin
56b), “We do not assume an imperfection where we do not see one.” And “A
wise man need be guided only by what his
eyes see.” (Baba Batra 13la) This
is the very intent of the verse which we
mentioned above: “The wise man sees evil and hides...”
What is spoken of is hiding from the evil
which one sees, not from that which might possibly
materialize. And this is precisely the
intent of the verse previously referred to: “The lazy man says,
‘There is a lion on the road...’” which our Sages of blessed memory
interpreted (Dvarim Rabba
8:7) as an illustration of the extent to
which vain fear can go
to separate a
man from a good deed.
[The previous paragraph reiterates
what was said above in refutation of the government’s timid policy of
self-restraint against Arab terror; and it may also be applied to refute the
government’s plan to retreat under fire from Gaza and other parts of Jewish
land. It bears repeating that Israel’s highest ranking security officials have
stated that retreat will increase terrorist attacks. Indeed, the number of
rockets fired from Gaza nearly doubled following cabinet approval of
disengagement, which clearly illustrates how the government’s fear and folly
have magnified the danger of pikuach nefesh.]
Regarding the question of shtachim,
which concerns Klal-Yisrael, it cannot be
compared to the pikuach nefesh of an individual
where a doctor can decide whether or not his condition is
life-threatening. The pikuach nefesh of the
tzibur
must be decided by the Torah sages of the present generation. They must
determine whether the existing
situation involves a re`uta or flaw pointing to pikuach nefesh,
or whether the present situation [like walking through a safe neighborhood] is
a routine matter. To give away shtachim [especially to terrorists] is
definitely not routine, but a situation with a re`uta of
pikuach nefesh.
What has been said here is clear. The
relationship of pikuach nefesh to giving away shtachim in
Eretz-Yisrael is a very intricate halacha, and cannot be solved by
one’s wishes or intuitions or political inclinations. This halacha and
its psak can be solved only by a shakla-vetarya, a discussion
and debate of all the great halacha-people, meaning all the genuine
gedolei-haTorah – the Torah giants of our
generation. They must convene in one place and exchange
all the halachic arguments for and against their respective
points of view.16
At the conclusion of this discussion and debate, a
majority if not unanimous decision must issue from this conference.17
It must be
clearly understood that only
gedolei-haTorah – the great people of Torah who are universally accepted
for their fear of Heaven and for their Torah learning – are qualified to
decide the halacha concerning shtachim.
No secular or pseudo-Talmudic scholars are
qualified to be members of this conference. But it must be reiterated
that without the meeting and debate of all the gedolei-haTorah in one
place at one time, any individual decision in relation to the pikuach
nefesh of shtachim has no status of psak-halacha binding on
Klal-Yisrael in Eretz-Yisrael.
Thus ends Dr. Zimmerman’s discourse on
“The Prohibition of Abandoning Land in Eretz-Yisrael”. It would be well
to bring this discourse to the attention of Israel’s Government, above all to
the luminaries and leaders of Israel’s religious parties.
Endnotes
1 |
Chaim Zimmerman, Torah and Existence: Insiders
and Outsiders of Torah (Jerusalem: A.A.E. Inc., 1986). All notes are
those of the present writer. |
2 |
See Paul Eidelberg (ed.), Israel’s Return and
Restoration (Privately published, 1987), and reprinted in Paul
Eidelberg, A Jewish Philosophy of History: Israel’s Degradation and
Redemption (New York: iUniverse Inc., 2004), Appendix. |
3 |
I must point out that Dr. Zimmerman dictated
Torah and Existence in English, which was not his mother
tongue. I have therefore attempted to render awkward passages more
readable without altering their meaning. My commentary in the text
will usually appear between square brackets. |
4 |
According to the Babylonian Talmud,
“No legislation should be imposed
on the public unless the majority can conform to it.” (Avoda Zara
36a) This principle is expressed differently in the Jerusalem Talmud:
“...any legislation enacted by a court but not accepted by the majority of
the public is no law.” (Avoda Zara 2:8) |
5 |
In his testimony before the Knesset’s Foreign
Affairs and Defense Committee on January 5, 2005, Shin Bet Director
Avi Dichter described some threats inherent in carrying out Prime Minister
Ariel Sharon’s plan to pull the IDF out of the Gaza Strip and northern
Samaria. “In a situation where Israel is not in control of the Philadelphi
corridor [which separates Gaza from the Sinai Peninsula],” Dichter warned,
“terrorists arriving from Lebanon are liable to infiltrate through it into
the Gaza Strip and there is the distinct possibility that in a short while
the Gaza Strip will turn into South Lebanon.” Dichter also cautioned that
the current “trickle” of arms smuggling through the corridor is liable to
turn into a “river”. As to northern Samaria, Dichter said that “Samaria is
an area with terrorist potential that already proved itself in the past.
Therefore nothing should surprise us. If we evacuate the area and turn it
into Area A, under complete Palestinian security control, we are liable to
get an area there that operates by the Gaza model.” According to Dichter,
the number of Kassam rockets fired from Gaza nearly doubled following the
cabinet approval of the disengagement plan in June. For a more detailed
report, see The Jerusalem Post, January 6, 2005, pp. 3, 9.
|
6 |
Yaakov Amidror, “Unilateral Withdrawal: A
Security Error of Historical Magnitude”, Jaffee Center for Strategic
Studies, Tel Aviv University, Vol. 7, No. 3, December 2004, which contains
a devastating critique of disengagement on strategic grounds. For a
profound moral critique of disengagement from a retired Brigadier General,
see the interview of MK Effie Eitam, The Jerusalem Post, January
13, 2005, pp. 13, 16. |
7 |
Dean of the Shaarei Mishpat Law College, Professor
Emeritus Eliav Shochetman, has said that any Israeli government decision
to expel people from their homes, even in the context of a diplomatic
move, would represent a wanton violation of basic human rights and civil
liberties protected under Israeli law (for example, Basic Law: Freedom and
Human Dignity), as well as by the Universal Declaration of Human Rights,
which states that it is illegal for sovereign governments to expel their
own citizens from their homes, their private properties or from their
farms. See Eliav Shochetman, “What is the Legal Basis for Israel and the
Settlements?”, Israel Resource Review, August 30, 2001, and Howard
Grief, “The Law vs. Aharon Barak”, The Jerusalem Post, October 22,
2004, which argues, in part, and contrary to Israel’s Chief Justice Aharon
Barak: “According to international law, Judea and Samaria are not
‘occupied territories’, as evidenced by several international agreements
that have recognized the Jewish People’s right to possess and settle the
land [which agreements remain in force to this day].” See ../authors/,
“Confronting ‘Disengagement’: Israel,
Civil Disobedience and the Higher Law”, in this policy paper. Beres,
who was educated at Princeton (Ph.D., 1971), is Professor of Political
Science and International Law at Purdue University. His work on
strategic/defense matters as well as on issues of international law is
well-known in Israel. |
8 |
When “Halacha” is capitalized, it refers to
Jewish law as a whole; when not capitalized, it refers to a specific law. |
9 |
Theophrastus (372-287 BCE), Aristotle’s student and
successor at the Lyceum, referred to the Jews as “a nation of
philosophers”. Clearchus, another student of Aristotle, and in
the first rank of peripatetic philosophers, records his having heard his
master tell of an encounter with a Jew from Judea (the ancient name
of “Palestine”). Aristotle relates that the man spoke Greek, and adds:
“During my stay in Asia, he visited the same places as I did, and came to
converse with me and some other scholars, to test our learning. But as one
who has been intimate with many cultivated persons, it was rather he who
imparted more to us than we to him.” Numenius (fl. 150-176 CE), a Syrian
philosopher who is regarded as a founder of neo-Platonism, greatly admired
the Jews, especially Moses. He is recorded as having said, “what else is
Plato than Moses speaking Attic Greek.” For references to these and other
Gentile admirers of the Jewish people, see Paul Eidelberg, A Jewish
Philosophy of History, pp. 113-114, 120-121. |
10 |
To see why it is misleading to regard Judaism as a
religion, see Paul Eidelberg, Judaic Man: Toward a Reconstruction of
Western Civilization (Middletown, NJ: Caslon Co., 1996), ch. 1. |
11 |
See Paul Eidelberg, Jewish Statesmanship: Lest
Israel Fall (Israel: ACPR Publishers, 2000; New York: University Press
of America, 2002), ch. 3. |
12 |
“Klal-Yisrael” denotes the Jewish People as a
whole, not merely the Jews now living in the State of Israel. |
13 |
This statement obviously deals only with a
theoretical halacha, since the Jews were in exile. See note 16
below. |
14 |
See notes 5, 6, and 7 above. See Paul Eidelberg, “A
Machiavellian Analysis of Ariel Sharon”, Nativ: A Journal of Politics
and the Arts (September 2004, in Hebrew), for evidence that in June
2002 the Bush administration gave the Sharon Government the green light to
destroy the entire leadership of the Palestinian Authority. |
15 |
See Paul Eidelberg, “A Peace of Perfidy”, The
Journal of Jewish Statesmanship (Jerusalem: Foundation for
Constitutional Democracy), Vol. I, No. 3, Summer 2001. |
16 |
This statement involves a practical halacha,
and so does not contradict the statement referred to in note 14 above,
which deals only with a theoretical
halacha. |
17 |
Compare this statement with the decision of United
Torah Judaism to join the Sharon Government as described above in the
Introduction, section III. In reaching this decision, did the Council of
Torah Sages consider public opinion regarding the expulsion of Jewish
communities in Gaza in the light of the halacha stated in note 4
above? |
About the Authors
../authors/ (Ph.D. Princeton
University) is professor of international relations and international law at
Purdue University and is Chair of Project Daniel. He is the author of many
books, monographs, and articles dealing with Israeli security matters. In
Israel he has lectured widely at such venues as the National Defense College (IDF),
the Dayan Forum, the Likud Chamber, the Likud Security Group, the BESA Center,
and the International Christian Embassy. Professor Beres’ work is well
known in senior political, military, and intelligence circles in Israel. He is
a member of the Advisory Council of the ACPR, a frequent contributor to
Nativ and the strategic and military affairs analyst for The
Jewish Press (New York).
*
Paul
Eidelberg (Ph.D. University of Chicago), a professor of political
science, is president and co-founder of the Foundation for Constitutional
Democracy in the Middle East as well as president of the Yamin Israel Party.
He is the author of many books including The Philosophy of the American
Constitution, A Discourse on Statesmanship, Judaic Man, and
A Jewish Philosophy of History. Many of his articles, which appear
weekly in the New York-based The Jewish Press, are translated into
Hebrew, Russian, and French. Professor Eidelberg, who lives in Jerusalem, is a
member of the Advisory Council of the Ariel Center for Policy Research (ACPR)
and of the Editorial Board of Nativ, to which he is a frequent contributor.
|