On IDF Refusals To Follow Orders: The Interlocking Perspectives Of National Law, International Law And Jewish Law (Part One of Three)

By: Louis Rene Beres         Tuesday, September 11, 2007


             Here we go again. The more things change, the more they remain the same. Now it is Hebron, where a number of soldiers have correctly refused intrinsically wrongful orders to evict fellow Jews from their homes. Now it is Homesh, where authentic Jews labor industriously and heroically to remedy earlier IDF evictions.


             Still committed to an incomprehensible policy of national auto-destruction, the present government in Jerusalem – following the humiliating surrender script that has painfully evolved from Rabin’s original codification of “Oslo” – drags out the same tired mantras of IDF military “discipline,” “command” and “loyalty.” To be sure, Israel’s soldiers must normally carry out orders and respect proper lines of command authority, but not when matters are incontestably abnormal. It should certainly appear abnormal to any thinking Jew that Israel’s leaders are still requiring the citizenry to plunge headlong toward collective dismemberment. As was expressed recently by Gary Cooperberg in his always lucid Voice From Hebron (August 16, 2007), “…a sharp distinction must be made between orders given in an operation of battle with our enemies, and a political order which has nothing to do with defending the nation and which may conflict with moral and ethical standards.”  Significantly, Gary’s point here is far more “moderate” than my own, which is that IDF Jewish eviction orders are genuinely injurious to Israel’s national survival and (as we shall soon see here) to global security as a whole.


            A few years back, when then Prime Minister Sharon first began to implement his flawed ideas for “disengagement,” a good friend of mine in Israel, a hard-fighting veteran of all-too-many wars, summarized his views of the newest Jewish capitulation as “irrational, fatally dangerous, unjust, immoral, illegal and disgustingly inhumane." Forced upon Israel by "blatantly undemocratic means," he continued analytically, its underlying cause is "auto-anti-Semitism." Ironically, of course, because the association of surrender with Sharon was so out-of-character, the Sharon government's edict to evict fellow Jews was nonetheless a de facto expression of "auto-anti-Semitism.” It was, therefore, not only the corollary right of each individual Israeli soldier to reject disengagement, but his absolutely sacred duty.


            Sadly, to be sure, nothing fundamental has changed. Nothing at all. On the contrary, to the extent that Prime Minister Olmert has very consciously coupled his plans for additional territorial surrender on behalf of the “Road Map” with a recent mass freeing of terrorists - and also with the extensive arming of one murderous terrorist faction (Fatah) against another (Hamas) - the Jewish soldier’s obligation to resist Israeli self-destruction is now more compelling than ever. This legal and Halachic argument is all the more true presently, because Fatah and Hamas have both the clear intention and the documented capability to escalate to mass-destruction forms of terrorism.


            Let us not forget that the essence of any government rests upon a credible assurance of protection. By definition, there is always a solemn “pact” that exists between citizens and governments concerning this existential assurance, and right now the Olmert government is manifestly determined to violate its part of the bargain. Understood with particular respect to the Jewish State in 2007, it must be fully understood that any IDF military orders that would plausibly undermine Israel’s statehood are inherently lacking in moral and legal authority, and must be strenuously opposed.


            In short, Israel’s soldiers have no right or obligation to follow orders that are prima facie contrary to Jewish survival. Naturally we can’t expect that each soldier will have the right to determine for himself in each case whether a particular order is valid or invalid, but in the matter before us presently, the degree of danger that would accompany further Jewish evictions are manifest beyond a reasonable doubt. If we should also factor into this matter the enormously pertinent Nuremberg Judgment and associated Nuremberg Principles, it will become altogether clear that the obligation to disobey military orders contrary to any state’s survival is generic and universal. Indeed, this precise obligation has already become synonymous with the very meaning of “Nuremberg.” Hence, Israel’s obligations here are binding by both direct obligation and by extrapolation from general jurisprudence.


             When Ariel Sharon first began to implement disengagement, Israelis immediately started to inquire: Will military refusals to participate in the expulsion of Jews cause the IDF to weaken or even to disintegrate? "On the contrary," wrote Moshe Feiglin,  "it will strengthen it (IDF) morally and establish its right of existence. Real conscientious refusal will not lead to a situation in which everyone does as he likes. The soldiers who are refusing are the outstanding ones, who wish to serve and make sacrifices for the nation and the country."


            Moshe was correct, of course, but the unambiguously persuasive Jewish argument against complicity in Jewish deportations and hence for certain forms of civil disobedience can also be grounded in fundamental international law. Significantly, international law is itself drawn from the idea of a Higher Law - an idea that was born in ancient Israel. The specific right to civil disobedience is well established in all democratic legal theory. This right can become an outright obligation whenever a particular government's policies run counter to the authoritative and codified Nuremberg Principles of 1946.


            Let us now speak more specifically of Jewish Law. From its very beginnings, this body of rules and principles has been viewed as an expression of G-d's will.  Biblically, the law is referred to as the "word of G-d,” never of humankind.  G-d is the sole authentic legislator, and righteousness lies in observance of His law.  The absence of righteousness places at risk, the lives and the well being of both the individual and the entire community.


            For ancient Israel, law was always the revealed will of G-d.  All transgressions of the law were consequently offenses against G-d.  The idea that human legislators might make law independently of G-d's will, would have been unthinkable.  Indeed, as G-d was the only legislator, the sole function of human authorities was to discover the law and to ensure its proper application.  According to Talmud:  "Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mount Sinai." (See Jerusalem Megillah IV, 74d.)


             In the Jewish tradition, the principle of a Higher Law is not only well established; it is the very foundation of all legal order.  Whenever the law of the state stands in marked contrast to this principle, the secular law is rendered altogether null and void.  In certain circumstances, such contrast positively mandates opposition to the law of the state.  Here, what is generally known as "civil disobedience" is not only lawful, but genuinely law-enforcing.


            Exactly what sorts of circumstances are we describing?  Above all, they are circumstances that place at existential risk the very survival of the state.  In such circumstances, which were in fact already identified in the widely disseminated Halachic Opinion issued in 1995 by Prominent Rabbis in Eretz Yisroel, Concerning Territorial Compromise, the matter is one of Pikuach Nefesh. Hence, it demands apt forms of resistance.  Israel simply cannot endure strategically without Judea and SamariaAs the Torah is a "Toras Chaim," a Torah of life, Jewish authorities in the State of Israel are "forbidden, under any circumstance," to transfer Jewish land to Arab authorities.


             The writer Hillel Halkin, fearing that the state of the Jews might one day be ruled by Hebrew-speaking Gentiles (a fear already widespread among American Zionist thinkers like Maurice Samuel and Ludwig Lewisohn) once wrote: "I do not believe that a polity of Israelis who are not culturally Jews, whose roots in this land go no deeper than 30 years and no wider than the boundaries of an arid nation-state, has a future in the Middle East for very long.  In one way or will be blown away like chaff as though it never were, leaving neither Jews nor Israelis behind it." (See Letters To An American Jewish Friend: A Zionist's Polemic, Philadelphia: Jewish Publication Society, 1977, 199-200.)


                                      And in a more recent essay the same writer observed that the actual hatred for Judaism of a very large portion of Israeli intellectuals, including those who now create a theoretical legitimacy for current government policies, has become a hatred of Zionism. (See Halkin's “Israel Against Itself”, COMMENTARY 98. November 1994.)

            Halkin's fears were well founded.  They remain well founded today. Under the Rabin/Peres governments, Israel began to be transformed not only into a polity that was more and more detached from cultural Judaism but into one that positively undermined both Judaism and Zionism as well.  That terrible transformation now continues full-speed-ahead under Olmert.


            We have already seen that the right of sovereignty, in all states, rests upon an assurance of protection.  Where a state can no longer offer such elementary assurance  – indeed, where it deliberately surrenders such a sacred promise - the critical rationale of citizen obligation must also disappear.  "The obligation of subjects to the sovereign", said the English philosopher Thomas Hobbes in the 17th century,  "is understood to last as long, and no longer, than the power lasteth by which he is able to protect them."


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