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ISRAEL, CIVIL DISOBEDIENCE AND THE HIGHER LAW Louis Rene Beres - Professor of International Law, Department of Political Science
Purdue University, West Lafayette IN 47907
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Soon - because of his planned "disengagement" from Jewish lands in Gaza and Samaria - Prime Minister Sharon will encounter widespread civil disobedience and civil resistance 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.

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. 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," the earlier Oslo agreements and the larger "Peace Process," (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. Codified in both the Declaration of Independence and in the Constitution, 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."

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. Asserting the right of revolution whenever government becomes destructive of "certain unalienable rights," 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. 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. 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. 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.

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.

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. The Ninth Amendment, in stipulating that "the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated," reflects the belief in a law superior to the will of human governance. And this belief runs continuously from ancient times, especially Jewish Law, 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." Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered into later Stoic philosophy, and described one universal and rational law.

In 442 B.C.E., Sophocles elucidated the idea of true law as an act of discovery, challenging the superiority of human rule-making in Antigone. 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," cited Antigone as a stirring example of civil disobedience.

Building upon Plato's theory of Ideas, which sought to elevate "nature" from the sphere of contingent facts to the realm of immutable archetypes or Forms, Aristotle advanced in his Ethics the concept of "natural justice." Quoting the Antigone, he argued that "an unjust law is not a law."  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."

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. 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. 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.

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. 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."  This definition sheds light on the problems surrounding positivist jurisprudence, a legal philosophy that values a state's edicts as intrinsically just and obligatory. 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....

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."  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." 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. On several occasions, Cicero and others invoked this clause, or jus, against one statute or another. 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, which he defined as "the reason or will of God (ratio divina vel voluntas Dei)." Aquinas continues this tradition of denying the status of law to prescriptions that are unjust (lex iniusta non est lex). "Human law," he wrote in the Summae, "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."

The concept of a Higher Law was widely integrated into medieval jurisprudential thought. 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." 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." Natural law, then, exists to frustrate political injustice.

In the seventeenth and eighteenth centuries, natural law doctrine was reaffirmed and secularized by Grotius. 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. 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, Grotius fashioned a bridge from the Christian Commonwealth of the Middle Ages to a new interstate society. 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.

Unlike Machiavelli and Hobbes, 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. Hence, he proceeded to reject raison d'etat as a just cause for war.

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). The codified American "duty" to revolt when governments commit "a long train of abuses and usurpations" flows from Locke's notion that civil authority can never extend beyond the securing of humankind's natural rights. 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." As for the right to pursue happiness, which Jefferson drew from Burlamaqui's incorporation into natural law, 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.

Above all else, perhaps, the Declaration of Independence codified a social contract that sets limits on the power of any government. 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 to 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.

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." 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."

 

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 Creon ) according to conscience. "Why has every man a conscience," 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.

Where are such "conscientious men" (and women) to be found? Certainly not, says Thoreau, among the "commonly esteemed good citizens." These mass men and women serve the state "not as men mainly, but as machines, with their bodies." Placing themselves "on a level with wood and earth and stones," they are incapable of making essential moral distinctions; thus, "they are as likely to serve the devil, without intending it, as God." 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, in antecedent international law, and that all terrorists are Hostes humani generis, "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. 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, 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, 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, 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, war crimes, crimes against peace (aggression) and even crimes against humanity (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?" "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. Regarding Jewish Law, which is itself a foundation of International Law, the earlier important Halachic Opinion 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," derives in part from the obligations of "Pikuach Nefesh," 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, acts of civil disobedience and civil resistance against this Government are not only permissible, but also law-enforcing.

Regarding international law, there are standing Nuremberg obligations to resist crimes of state, crimes such as those involved in deliberate assaults upon the principle of Nullum crimen sine poena and in flagrant indifference to national survival. Major legal theorists through the centuries, especially Bodin, Hobbes 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 wilful 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, 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. 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. It follows that the Government of Israel is bound by pertinent norms of international law concerning punishment of terrorist crimes, the prevention of genocide and physical survival of the state. Where this Government fails to abide by these peremptory norms, civil disobedience and/or civil resistance are not only permissible but required.

 

V

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 U.N. 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 ecompassing what are now the states of Jordan and Israel, including Judea/Samaria and Gaza. Present-day Israel, including Judea/Samaria and Gaza, comprises only twenty-two percent 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 twenty years after Israel's entry into the community of nations, the Jewish State - as a result of its stunning military victory over Arab aggresor states - gained unintended control over Judea/Samaria and Gaza. Although the inadmissibility of acquisition of territory by war had already been enshrined in the U.N. 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 U.N. Security Council Revolution # 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.

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LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is author of many books and articles dealing with international law. Prof. Beres is the academic advisor to the Freeman Center For Strategic Studies.

Published  February  7 2005 by site http://www.freeman.org/

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