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Vol. 10 / June 2007 / Sivan 5767                          A JOURNAL OF POLITICS AND THE ARTS

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The Shock of Surrender

Elyakim Ha’etzni

This paper was published as ACPR Policy Paper No. 165 (Hebrew)
and ACPR Policy Paper No. 167 (English)
and is available in booklet form through the ACPR office.
Contact us for ordering information.

Author’s Note:

This booklet was first published in January 1986 in opposition to Shimon Peres’ “peace” plan. Twenty years have passed, and we have already experienced the first exile from modern day Israel. Twenty-five Jewish settlements were handed over to the enemy, and the intellectual, psychological, and physical infrastructure for destroying the rest of the Jewish settlement enterprise in Judea and Samaria was laid.

In the next phase comes the “cleansing” of the Judean-Samarian mountain ridge and the exile of about 100,000 Jews in order to make way, in the language of the “Road Map,” for a “Palestinian state with temporary borders.” This time, it is not the Biblical Rehoboam who is splitting the nation and the kingdom, but latter-day dividers: Ariel Sharon and now Ehud Olmert. However, the one who has always pulled the strings was and remains Shimon Peres.

Although subsequent developments have not dated this work, a new edition was necessary since copies of the original edition are no longer available. I have taken that opportunity to make whatever additions the passage of two decades required. Unfortunately, some of the events foreseen have already transpired, the most tragic being the beginning of the abandonment of the Land of Israel, accompanied by a dangerous split in the nation.

This edition is being published in “real time”, a time when the expulsion plans for all the Jews living on the wrong side of the “separation fence” have been readied. I can only hope that this booklet will make some small contribution towards stopping the headlong rush towards a very bitter destiny, one that throughout our history causes us to destroy with our own hands that which we know how to build with such tremendous self-sacrifice, talent, sweat, and tears.

Elyakim Haetzni
Nisan 5766, April ‏2006 

The author wishes to express his special gratitude to the English translator, Timna Katz, thanks to whose comments the English edition contains important improvements.


Chapter 1:

The Spiritual Shock of Surrender

 In the long period since the historic Land of Israel was liberated in the Six Day War, we have become accustomed to the profusion of plans, proposals, and demands for Israel to withdraw from Judea, Samaria, Gaza, and biblical Jerusalem, and to hand these areas over to the Arabs.

It is truly amazing that during the course of this 40-year national “symposium” on withdrawal that has caught up the entire nation, so little attention has been paid to the existential meaning and ramifications of such a move. We refer to the implication of even considering a public and juridical surrender, by way of an international document, of the places and sites that have aroused our yearning and prayers during our entire existence as a nation.

We haven’t heard anyone say, for example, that just as the Zionist movement was ignited by Herzl’s demand that a Jewish state arise by way of a public-juridical decision, it would mark the end of this very same Zionism were a Jewish state in the Land of Israel to surrender Zion to strangers in a similar public-juridical act.

The emphasis is on the free and voluntary nature of the surrender, as distinct from the compulsion of war or other forms of duress that caused the Jewish people to be exiled from their land after the destruction of the First and Second Temples and the fall of Beitar. Was it not, in fact, Zionism that showed the world that external compulsion could not succeed in extinguishing the spark of hope and yearning for Zion that burned during the dark millennia of waiting in exile? Not so a deed of voluntary surrender, which denotes finality.

Following the luminous days of the summer of 1967, the celebratory pronouncements describing our relationship to the land on the basis of history, culture, religion, and moral principle – above and beyond considerations of Realpolitik – quickly ceased.

In all the years since then, Israelis have been going round and round the security, economic, demographic, and moral implications of our options for clinging to versus abandoning Zion. Yet they’ve ignored the destructive influence of a national trauma like this on the soul of the nation, despite the fact that this consideration and nothing else, should be the decisive one. Israel’s national anthem is called “Hatikva”, meaning “The Hope”, but once the ideological spark embodied in “the hope of 2,000 years to be a free nation, in the land of Zion, Jerusalem” is extinguished, what importance or relevance will remain to security, economy, demography, or even morality towards the Arabs?

Hundreds of thousands of individuals, whose relationship to the “territories” is today lukewarm or even negative, will suddenly feel that the whole reason for their existence in this place has been taken from them. And when they finally discover from within the deepest recesses of their hearts and souls what it is that has stricken them, it will be too late.

Therefore, we won’t deal here with the question of survival and security: how it’s possible to strike Ben Gurion airport with mortars from the settlements or how the Egyptian army reached the outskirts of Jerusalem by way of Hebron during the War of Independence. Those things are known and are countered by the answers of experts – electronic answers, airborne answers, mechanized answers, demilitarized answers, and of course ink answers – the ink used to write the letters P-E-A-C-E. We have already seen how answers of this kind have succeeded in convincing multitudes of people in Israel to withdraw from vital security regions such as the Sinai, Gaza, and Northern Samaria. On the other hand, there’s no apparent answer to the danger of spiritual annihilation that threatens the nation of Israel if the blow that falls on Eretz Yisrael comes at the hands of the government of Israel and of its own free will.

There are Israelis who have already distanced themselves so far from their source that they’ve forgotten the force of emotions that the land of Israel can arouse. For their ears, we will quote some lines of Rebbe Nachman of Breslov’s “Prayer of Longing for the Land of Israel” to illustrate what it means to betray the Land of Israel:

Merciful and forgiving God
Forbearing, full of kindness and truth
Grant in your great mercy
To myself and all of Israel
Homesickness and Longing
And Great Yearning
And true desire
To come to the Land of Israel
To go, to travel, and to come in peace to the Land of Israel
Because You know the great force of the imperative
How much I need to be there
In the Holy Land
Because in that land is the essence, the foundation, the source of the holy faith
There is the root of the holiness of Your people Israel...
The land of true life
Eternal life
Beautiful of vistas, the joy of the world.

“The Land of True Life” – between Mt. Gerizim and Mt. Ebal


Since the days of Rabbi Nachman, the Land of Israel never lost its magic for the Jewish masses. Rabbi Nachman expressed the force of their feelings 200 years ago in words that could be written today – and it is with that strength of emotion that the planners of retreat from Israel’s heartland will have to contend. They’ll be forced to ask themselves practical questions like: were Rabbi Nachman alive today in Hebron, what would they do with him? Would they pull and drag him out of there using the army, or would they maybe leave him there to his fate? Although the poem’s author is dead and buried, the force of his love and longing lives in the hearts of many. What will an Israel alienated from its heritage do with those many?

How will a state that was established to fulfill the yearning “to be there in the Holy Land” contend with the decision not to be there anymore, and to actually remove violently in a state-sponsored pogrom those who dwell there, so that “the joy of the world” will now belong to strangers?

How will it look and how will it function, an Israel stripped, wounded, and anguished, a post-retreat Israel, a land depleted of morale, a pampered state, rationalistic-hedonistic, bereft of dreams, lacking hope and “illusions”, sliding down the slope of loss of faith in itself and the justice of its cause? After the heart breaks, after the pillars of faith collapse, will not the gates by which the enemy will enter open from within, without the firing of a single shot?

“The Root of the Holiness of Your People Israel” –
The Cave of the Patriarchs in Hebron. 

Chapter 2:

From Zionism Back to Territorialism

 We open with a word pair: The Land of Israel – The State of Israel. Zionism, most simply, is the return of the Jewish nation to Zion, as expressed in the foundational “Law of Return”.

But how can this land be called “Zion” without Jerusalem, Bethlehem, Hebron, Jericho, Beit El, Shilo, Shechem, the mountain and the desert? These are the places where the events of the Bible transpired and where the spirit, soul, and character of the Jewish people was formed. The voluntary hand-over of Zion to the Arabs can only be a perversion of Zionism, a Zionist absurdity. The wonder of the matter is that those who support this convolution actually dare to call themselves “Zionists”.

In both the world and in Israel, there are plenty of Jews who are not Zionists, and among them are even enemies of Zionism. We have no quarrel with these Jews since we lack any point of contact with them. The unfolding national tragedy arises out of the gaping chasm that exists among Jews who believe that the State of Israel is indeed meant to return the Jewish nation to the Land of Israel to regain sovereignty. The tragic break is taking place within the camp, among those whose national worldview rests on the three pillars of people, land, and sovereignty, among those who are cognizant that if one pillar collapses, the whole building crumbles

A Zionist, as opposed to a “territorialist”, will not give up the Land of Israel side of the triangle, because unless it is in the Land of Israel, he has no interest in sovereignty. As for the territorialists, sovereignty is what’s essential and it doesn’t matter if that sovereignty is actualized in Argentina, Uganda, Birobidzhan, or even a part of the Land of Israel, if that is what is available. In his eyes, land is real estate, an incidental basis upon which to spread the tent of sovereignty – a neutral platform, devoid of emotional resonance.

Behold the irony: We experienced the wonder of liberating all of Israel west of the Jordan only to invent a new species of territorialism – one from within the Land of Israel and among the camp that still calls itself “Zionist”. This new ideology calls for retreat from the heart of Zion – a cold-blooded, voluntary retreat – out of considerations of democracy, demography, economy, international support, and – dare we say it – self-hatred. From now on, other values – social, economic, liberal, universal – outweigh the foundational significance of the Land of Israel as an eternal inheritance. Zion is abandoned to foreign rule, its children exiled to the territorial fringes of the patrimony.


 Chapter 3:

The State of Israel Exiles Itself from the Land of Israel

 There is yet another face to this national tragedy. Until now, we’ve seen the emigration of individuals from the land, but now the state itself is emigrating. We now find conflict and contradiction where there should be complete congruence between the land, its settlement, and sovereignty over it. This conflict arises from selfish considerations: Dizengoff is surrendering the Western Wall, Herzliya is surrendering the Cave of the Patriarchs, and Holon is giving up the Tomb of Rachel. It is analogous to a missile that has strayed from its course, to stomach enzymes that are eating the stomach in a pathological process. The tool that was meant to bring the Jews to the Land of Israel, is removing them from it. Like the Golem who suddenly turns on his master, the state has arisen against the land to give it over to strangers. It turns its back on the heartland, faces the coast and exchanges the call “return!” with the cry “retreat!”

But the state is not simply retreating from the land – it is exiling itself from it. Retreat is a military term, markings on an operational map, denoting a tactical exigency. Exile, however, uproots the heart. And far more bitter and fateful than ordinary exile is voluntary exile, because it turns its back on Jewish history and steals its future. The third exodus of Jews from the “beloved land” on the path of exile began in August 2005, when 10,000 Jews were expelled from 25 communities in Gaza and Northern Samaria, this time to an exile within the Land of Israel.

After this event, everything quickly returned to normal because the extinction of Jewish life in these areas wasn’t accompanied by violent clashes. The uprooted and expelled exhibited ‘passive obedience’. Nonetheless, the event penetrated to the depths of the national consciousness, and from that place it allows the nation no peace. The violent clash in Amona is connected to the expulsion from Gush Katif as another point on the same continuum.

If there is a next wave of expulsions, it will not be another event, but the beginning of the end of the modern return to Zion known as Zionism. It will be a national catastrophe, a unique “Ninth of Av”, which the Nation of Israel will mourn as a destruction that it brought upon itself. To the names of the historic destroyers, like Nebuchadnezzar King of Babylon and Titus Commander of the Roman Legions, will be added Jewish names. How can we be comforted after such a day?

“Again you shall plant vineyards on the hills of Samaria,” says Jeremiah (31:4), but how can we plant once we’ve freely given those hills to strangers?

What tidings can Jeremiah’s unforgettable words still carry, once our own actions have emptied them of their contents?

The exile from Gush Katif, 2005


“Erect markers,
Set up signposts;
Keep in mind the highway,
The road that you traveled.
Return, Maiden Israel!
Return to these towns of yours!” (Jeremiah 31:20)

The markers erected for our return now point the way out, the signposts say “leave!”, and the highway has become a highway of expulsion. Where will the “Maiden Israel”, befouled and betrayed, return to, once “these towns of yours” have become Palestine?

Try, dear reader, to read another prophecy through the eyes of a Jewish child in the year 2106, after 100 years of Palestine:

They shall return from the enemy’s land.
And there is hope for your toils
                    – declares the Lord:
And your children shall return from enemy country.
And there is hope for your future, says the Lord,
And the sons will return to their border.” (Jeremiah 31;14-16)

To where will the children return? Where is their border? In the Palestinian city of Bethlehem? There is no return and no comfort after voluntary exile. The break is irreparable.

The government of Israel is steering the nation towards a tragedy of historic proportions: it will turn the Bible from a prophecy fulfilled to a prophecy proven false. This will be the end of the Zionist ethos, a spiritual break whose like the Jewish people never before experienced, because this time the blow does not come from without, but from within.


Chapter 4:

The State of Israel: The First Jewish Representative Body to Surrender the Land of Israel?

The shock of this deed is in its lack of precedence. Never, in our whole history has a Jewish person or body signed a document surrendering Jewish rights to the Land of Israel. And were it to be imagined that gentiles would force some rabbi or community in Rome, Warsaw, or Bagdad to sign such a document, who would that piece of paper obligate? It would be worthless.

And who would dare arrogate the authority to obligate the nation to a fateful breach like this? In all our years of weakness and humiliation, when we were either a barely-tolerated minority or a persecuted one, not only did a Jew never “surrender” the Land of Israel, never would it even have occurred to a gentile to demand such a thing of us.

And now – what bitter irony and what twisted destiny – the “generation of the redemption”, with its great military and physical strength, has been stricken with such weakness of soul and spirit that we will bring this spiritual disaster upon ourselves. “The generation of the resurrection” turns into the “generation of the downfall”, a generation that has lost its faith and its way.

Has it been decreed that this torch, passed from generation to generation throughout the darkness of exile, is to be extinguished just now, when it reached its destination in Zion? Will the chain of the generations, all of whose links held fast despite the pressures of persecutions, forced conversions, and genocides, break just now, at the link that at last closes the circle of return to Zion?

Will not the Jewish people reject an idea so insufferable, a notion too poisonous to be swallowed: that the State of Israel was established to provide the people of Israel, for the first time in its history, with authorized representatives to nullify its right to the Land of Israel?

Is this, then, the true destiny of the State of Israel? Is it to be a cancer that devours and destroys the Jewish Land of Israel? No longer a state that rebuilds, but a state that destroys? Will the State of Israel, the apex of Zionism’s achievement, destroy, pervert, overthrow, and bury the very Zionism that created it?

Amona – the forces array themselves


Chapter 5:

The Unwritten Constitution of the State of Israel

 The fatal clash between the State of Israel and the Land of Israel also has legal facets. Israel, unlike most nations of the world, didn’t spring in an organic manner from an existing reality. All the nations of the world arose from families, tribes, urban and rural settlements, that united to become a nation after they already found themselves settled in their geographic place. And when all these social entities organized themselves into nations, they raised the roof of statehood on their already existing houses.

Israel was built from the roof down. And it was built according to a plan. Before the Jews returned en masse to their land, they had a program which encompassed the purpose of their return and the dream they were seeking to fulfill in this old-new land. In other words, the platform for the new state was decided at the outset. This platform is Israel’s unwritten constitution. On its tablets are inscribed at least these commandments: the incontestable right of all Jews to immigrate to the Land of Israel, to settle it, and to establish a sovereign government on its soil. These “commandments” didn’t originate with modern Zionism, but are the genetic code of the Jewish people. They begin with “Leave your country, your homeland, and the house of your father to go to a land that I will show you” (Lech Lecha) and continue by way of “If I forget thee, O Jerusalem” to this very day. This code, in its modern incarnation called Zionism, has been physically imprinting the land and molding its appearance for upwards of 120 years now. The State of Israel was destined to be – according to the plan that preceded its establishment—the instrument for actualizing this code by fulfilling the memories, longing, desires, and dreams of the Jewish people.

A State of Israel standing against the Land of Israel will no longer be the state that was established according to the Zionist idea. It will be a state that has cut itself off from its roots and the founding idea for whose actualization it was created. This development is similar to the kibbutz becoming high-end residential real estate, or to a New York synagogue becoming a church after the Jews left the neighborhood.

A historical perversion on this scale can be executed in two ways: by attacking aliyah and settlement. It is no accident that the British White Paper of 1939 took aim against these two cornerstones of Zionism: free immigration and settlement. Aiming to prevent the establishment of a Jewish state, the British disabled its foundational platform by choking off immigration to a bare trickle, and making the Biblical heartland of Judea and Samaria the center of “Zone A”, where Jews were forbidden to purchase land or to establish Jewish settlements.

Did we need Jewish sovereign rule over the Land of Israel so that a Jewish government could step into the shoes of the British Empire and implement the anti-Semitic White Paper, preventing Jewish settlement in that very same “Zone A”?

What is this, if not a violation of all the rules of the game, a nullification of the Zionist enterprise, a breach of the fundamental, unwritten constitution of the state?


Chapter 6:

The Law of Return

 In 1950, the Knesset formalized one of the fundamental pillars of the unwritten constitution when it legislated the Law of Return. The language used to formulate this law places it at the juncture where Land and Nation meet. The Law of Return guarantees every Jew the right to immigrate – but to where? Five key (Hebrew) words were chosen to express this basic constitutional right 17 years before we merited to once again behold the most beloved of Biblical landscapes. Those words guaranteed that the State of Israel would be a Zionist and a Jewish state. They appear in the first paragraph of the law, which is entitled “The Right to Aliyah”: “Every Jew has the right to immigrate to the Land.

The right is not to immigrate to the State, but to the Land. In the other paragraphs, the law makes a clear distinction between Israel the state and Israel the land. The legislators were careful to specify that the right to immigrate was paired not to the state, which is the framework, but to the content of this framework, which is the land itself. Thus, the founding fathers of the state transmitted to us a meaningful message: the state serves as a tool to bring the the land!

This means that the Law of Return grants every Jew the right to immigrate to Shechem. Although this right could only be actualized starting in June 1967, the decisive act, the establishment of the right, took place back in 1950.

It follows that any governmental act which denies a Jew the possibility of immigrating to the Shechem area, whether by formally surrendering the territory to foreign rule, forcing Jews out, or closing the area off to Jewish settlement, is an illegal act, which violates the Law of Return.

Although the Knesset has the power to change the Law of Return, and although the Supreme Court has the power to interpret the expression “to the Land” differently than it was interpreted here, such acts would be illegitimate. If not on the legal-technical level, then at least in the sense that such acts would contradict the unwritten constitution of the Jewish state.

And the sons will return to their border” – the Tomb of Rachel


Chapter 7:

Canceling or Limiting the Right to Aliyah

 While we are still within the purview of the Law of Return, let us imagine to ourselves that responding to international pressure or to internal “secular-democratic” pressure, the Knesset decides to cancel the Law of Return and put an end to the right of unlimited Jewish immigration that the law guarantees. How would the Jewish people react to such a move? Would it be accepted and obeyed? Wouldn’t the Jewish people indignantly label such an arrogation of power by the Knesset as illegitimate? Wouldn’t Jews, Israeli and non-Israeli, once again undertake an “illegal immigration” as in the days of the British White Paper? And whom would the smugglers seek to evade? Those who would enforce the “Closing of the Borders to Jews” law would be the security forces of the State of Israel, Jews themselves, whose job description the state had turned upside down.

Now, let us ask: will he who circumvents the enforcement of this illegal law be judged a criminal by public opinion, or will he be judged as one who helped reestablish the fundamentals of a state that had lost its bearings?

We can now return from aliyah back to settlement: Is there even a distinction between the two? Are they not the same thing? The immigrant who reaches the land immediately becomes a settler! And conversely, who is a “settler” but one who first immigrated to the land? And what is the difference between distancing the land from a Jew by abrogating the Jewish right of immigration and distancing the Jew from the land by surrendering it to foreigners or forcefully expelling him from it?

Since aliyah and settlement are nothing but two sides of the same coin, preventing aliyah to the land weighs equally with holding back the land from the oleh, the immigrant. Both restrictions do fatal injury to the unwritten constitution of the Land of Israel.

 The beginning of settlement in Kedumim


Chapter 8:

The Annexation of Jerusalem Based on Israel’s Sovereign Power over All of the Land of Israel

 Immediately after the Six Day War, the government of Israel decided that the State of Israel would annex liberated Jerusalem. At the time, Yaakov Shimshon Shapira was serving as Minister of Justice, and it is fitting that his name be engraved in our history books, if only for the words he spoke before the Knesset at that great hour.

But first we must understand what “technique” was used to effect the annexation. An amendment was added to the important constitutional law, “The Government and Justice System Act (1948)”, by which the Knesset granted the government the authority to apply and enforce Israeli law in all territory “in the Land of Israel” by issuing a simple governmental order. In the language of the new article (11b): “The State will apply its law, justice, and administration on any territory of the Land of Israel that the government designates by order.” (The legal-technical definition of “the Land of Israel” in the Israeli legislation are the borders of the former British Mandate.)

This legislative technique is unique and unprecedented in international law: a parliament granted authority to a government to annex conquered territories to the conquering country by way of a simple administrative act. In other words, if and when the government wishes to unify Shechem and Hebron with the State of Israel, it does not have to bring the matter to a vote in the Knesset. It is enough for an ordinary session of the government to promulgate an order.

Now we can better understand the words that Ya’akov Shimshon Shapira spoke in the Knesset, in bringing this historic legislation (Knesset minutes, vol.49, page 2420): Regarding “our return to Judea, Samaria and Gaza”, he pointed out that “the IDF liberated from foreign rule substantial portions of the Land of Israel” and that “the application of Israeli law, justice and administration” in those areas requires “a clear act of sovereignty on the part of the State”, regarding “parts of the Land of Israel that are by rights and in fact (in Hebrew, “halakha lema’ase”) under its rule.”

Moving from style (who uses such language anymore?) to legal substance: What is the meaning of “by rights and in fact” rule as entitlement for annexation? There is no escaping the conclusion that “by rights” is the natural right of the Jews to the Land of Israel, our unwritten constitution. Only on this basis, could the Knesset draw the authority to grant the government the power to annex portions of the Land of Israel.

Using this technique legislated by the Knesset, the government on that very same day placed liberated Jerusalem under Israeli law and judicial and administrative rule, with borders that were drawn on an attached map.

This brings us to the essential question: the act of establishing sovereignty over Jerusalem – when was it done and by whom? It clearly was not the governmental order that effected the act, but the legislation of the Knesset when it granted the government the authority to annex any territory that is part of the Land of Israel to the state by a simple order. This was the decisive step in defining the nature of the Land of Israel as liberated as opposed to occupied territory.

This can be likened to a man who gives his friend a closed purse, permitting him to open it and take out what he wants, whenever he wants. In exactly this way, the Knesset granted the government full disposition over Jerusalem, Judea, Samaria, and Gaza. The granting of this discretion was an investiture of ownership, expressing Israel’s right to rule over every part of the Land of Israel, even if this right has not yet been practically utilized over most of the area.

Whoever wishes to deny the government this right to apply sovereignty by simple order, which is exactly what the various “disengagement” and “convergence” plans do, prejudices not only the unwritten constitution of Israel, but also its duly legislated law.


Chapter 9:

Alsace and Lorraine – Judea and Samaria:

Historical Attachment and National Interests

 During an international symposium on human rights in 1971, Meir Shamgar, Israel’s attorney general at the time and later the chief justice of the Supreme Court, lectured on the application of the international conventions on war to Judea, Samaria, and Gaza. He made an official claim that these conventions did not automatically apply to that area. In the words of his speech (published in the Israeli Annual of Human Rights, 1971, page 263):

Territory conquered doesn’t always become occupied territory, subject to the fourth (Geneva) convention...a different approach would lead to the conclusion that France, for example, would have had to act in Alsace-Lorraine in accordance with the rules of the Hague Convention...

As is known, France treated Alsace-Lorraine as liberated territory, and didn’t apply the conventions on war there. Israel also refused to see these conventions as applying to Judea, Samaria, and Gaza, but nonetheless undertook to follow the humanitarian rules of the international conventions as a non-binding act of good faith. For this reason Israel also abstained from calling the area “occupied territory”, and chose a middle path – “administered territories”.*

Another attorney general, now also a Supreme Court justice, Elyakim Rubenstein, dealt with this subject at the height of the negotiations that Prime Minister Barak held in Camp David and Taba, when he offered an Israeli surrender of more than 90 percent of Judea, Samaria, and Gaza, and almost all of East Jerusalem. Rubinstein, in an unusual move, presented Barak with a “legal clarification” (published in July 2000) regarding UN Security Council Resolution 242, on the basis of which Barak was conducting the negotiations. He wrote, inter alia:

There has never existed a recognized border between Israel and the areas of Judea, Samaria and Gaza...the negotiations should be based among other things on the religious and historical connection to Judea, Samaria and Gaza, on the geographical facts and their influence on the security needs of Israel, on the fate of the settlements and the close link to Israel, and to Israeli national interests...

If the reader should ask what historic and religious connections have to do with a legal-juristic opinion, he’ll find the answer in the thesis of this booklet: the unwritten constitution of the state of the Jews.

“A historic attachment”


Chapter 10:

Is There Such Thing as an “Illegal Law”?

 What is the status of a government and a Knesset that violate the unwritten constitution of the State of Israel and cause the state to betray its mission and to stray from its existential principles?

To answer this question, we have to make the clearest of distinctions between the state and its government. The former is given into the hands of the latter in trust only. Neither the Knesset nor the government “own” the state, they rather administer its affairs as trustees, with all the attendant obligations of trust. The government is like a flesh and blood trustee entrusted with property, who has the power to perform any legal act – including buying or selling – but is subject to his duty of trust and the limit of his authority. If he oversteps this limit, he’s in breach of trust.

The Knesset and government have apparent unlimited legislative and executive powers, including the power to dismantle the state and to surrender it to the enemy. Therefore, the relinquishment of Judea, Samaria, Gaza, and East Jerusalem to foreign rule would obviously be included within governmental powers. However, although the power exists, do the Knesset and government have the authority to surrender the Jewish right of ownership over the Land of Israel? Or would such an act be a betrayal of their office and trust? Clearly, determining the very right to the land itself exceeds the authority of the Knesset, and still more so of the government, since that right precedes them.

The civil, human, and other basic rights of every democratic society are anchored outside and beyond the reach of the state’s power and authority. This truth and principle receives its most famous formulation in the American Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government...

Amona: confrontation

We believe that the list of “unalienable rights” in the state of the Jews includes additional “self-evident truths”, including the right to immigrate and to settle in the Land of Israel. Moreover, all the governments of Israel were established for the purpose of ensuring these rights – and it is on that basis, and only on that basis that they derive “their just powers from the consent of the governed”.

This Jeffersonian principle, embodied in the American Declaration of Independence, is practically fulfilled in many spheres. We will bring some examples.


 Amona: which side is upholding the law?

An illegal law – mounds of ruins in Amona


Chapter 11:

The Destruction of a Nation (Genocide) or the Destruction of a State

 As is known, the perpetrators of the German genocide claimed in their defense that they were only following orders. And those who gave the orders claimed that they legally activated the sovereign powers of the state, above which exists no higher authority. However, the International Court at Nuremberg, whose ruling was accepted as international law binding upon every state in the world, held otherwise. The Court ruled that a law enacting genocide is an illegal law. It also ruled that those who execute genocidal orders as well as those who enact or give them, are criminally guilty.

In Israel too, those responsible for the slaughter at Kfar Kassam were indicted and found guilty on that basis. Since the order to kill was found to be “patently illegal”, the court didn’t accept the defendants’ claim that they were simply following orders. But, just as it is forbidden for a soldier or policeman to follow a superior’s order to kill, it is likewise forbidden for the superior to obey an illegal government order or law, such as the Nazi race laws.

The Germans claimed that the state embodies the highest value, whereas enlightened nations hold that human life is the supreme value, and that even a democratic majority does not have the right to take it in an arbitrary way. Those circles in Israel, usually leftist, that sanctify the state and its majority decisions, and raise them above foundational rights, perhaps do not realize how captive they have become to a German philosophy taken to its extreme conclusion by the Nazis in the Holocaust.

The order to kill that was given at Kfar Kassam was, in the court’s words, a “black flag” whose true nature every soldier was obligated to recognize. In our opinion, that same black flag waves above any intent to surrender the sovereignty of the state to strangers. Just as a government has no right to order the genocide of a nation, so too it has no right to order the destruction of a state, including, of course, its own.


Chapter 12:

The Cancellation of Democracy

 The German Reichstag provided another example of what a parliament may not do. In 1933, shortly after Hitler gained power, the German parliament decided by a majority of votes to “commit suicide” by laying its total authority at the feet of the new dictator. This legislation, by which the Reichstag terminated its governance, was called the “Law of Empowerment”, the law that conferred on the Fuhrer the powers of which the Reichstag had divested itself.

Today it is universally recognized that the “Law of Empowerment” was illegal and that no institution has the authority to surrender democracy itself or the basic freedoms that are at the heart of democracy – even by a solid majority. The free world does not recognize using the means of democracy to subvert and destroy democracy.

In a state without a constitution like Israel, governmental power inheres in and is subject to the unwritten constitution, which is the basis, source, and root of all legislative enactment.

In Israel’s Knesset sits Mr. Ahmad Tibi. Theoretically, he can one day achieve a democratic majority to turn Israel into a “secular-democratic” state in the Arafatian meaning of that term, or into a Moslem state, à la Hamas. Would we accept such a majority vote as legitimate? Or would we relate to it as a monstrosity, a golem that turned against its creator?

Sixty-one Ahmad Tibis would rely on the “legality” of their majority, and those who would arise against this golem would speak in the name of our unwritten constitution: that the purpose in establishing this state was so it could be Jewish and Zionist.


Chapter 13:

Freedom of Religion and Conscience

 Here is a further Jeffersonian right that cannot be annulled: What would be the status of a duly enacted “Law against Sabbath Observance”? What about a “Law for Stoning Sabbath Desecrators”?!

Wouldn’t Sabbath observers and Sabbath desecrators feel that there was a “misunderstanding” here? That they did not agree to establish a state together on this basis? That the Knesset so fundamentally trespassed against the common basis of our mutual existence that there is no choice left but to either nullify the law or reject the framework, the state? Let it be said that in this case too, the foundational basis was violated because freedom of religion and freedom of conscience precede government and parliament, being the root and source of all democratic legal systems. Therefore, any legislation that seeks to abolish those freedoms can be termed an “illegal” or “unconstitutional” law.

To the universal list of sacred rights that no government can annul without losing its legitimacy, Israel must make some unique additions. Israel was founded to enable Jews “to make Aliyah to the Land”, in the language of the Law of Return, and to settle it. Different sectors of Israelis might value certain basic rights over others or might not even value certain rights at all, but no sector has the right to divest the state of its raison d’etre.

A fictional example: Readers on the left have to ask themselves how they would react if a Knesset were to enact legislation setting aside separate bathing beaches for Arabs. Would Jewish leftists go on purpose to the Arab beaches to bathe, as the writer of these lines would do, to demonstrate their rebellion against the attempt to turn the State of Israel into a racist state? If so, when will they understand that there are millions of Israelis for whom the Land of Israel is no less of an ultimate value?


Chapter 14:

Petain and de Gaulle

 France during the Second World War provides us with an excellent example of an elected representative of a democratic state who used the democratic majority to breach the framework of the permissible.

Marshal Phillippe Petain, “the hero of Verdun”, was one of the most revered figures in France. He came to power democratically and legitimately on the heels of the German invasion of France in 1940. In his capacity as prime minister, he signed a collaboration agreement with Nazi Germany in exchange for keeping the smaller part of France, with its capital in Vichy, outside the Nazi occupation. One must remember that Petain signed the agreement when the Nazis already ruled in Paris – unlike Jerusalem, Judea, Samaria, Gaza, and the Golan, which Israel’s enemies did not conquer and had no chance of acquiring by force; unlike Israel, who won every war waged against it. It must also be pointed out that in his policy of collaboration with Hitler, Petain relied on a legal majority within the government as well as widespread popular support.

Moreover: Petain’s decision was born out of extreme coercion and was not without justification or internal logic. He saved a part of France from the German occupation, and he obtained Hitler’s promise not to touch the French colonies. In the current Israeli political lexicon, many would call Petain’s policy pragmatic.

However, one man, the youngest of France’s generals, Charles de Gaulle, denied the legality of Petain’s actions. De Gaulle deserted and escaped to England. From there, he called upon his countrymen to rebel against Petain’s regime because it betrayed France’s glorious past and hopes for a restoration of France’s honor.

Vichy France tried General de Gaulle in absentia in a military court for desertion and treason and sentenced him to death. The sentence wasn’t executed only because de Gaulle was in London, outside the Vichy government’s reach. Four short years later, a division of de Gaulle’s Free French, among other Allied forces, liberated Paris. Again a French court sat in judgment and this time Marshal Petain was tried and sentenced to death, inter alia, for the collaboration agreement that he signed with Germany. Only because of his advanced years, he was over 90, was his sentence commuted to life imprisonment. He ended his life in island exile.

It is interesting to contemplate the strange phenomenon of two French sentences handed down according to the same law, but with such different results – results that corresponded so completely with the political situation and ideological outlook of the regimes in which the judges sat.

There are matters that do not constitute part of a nation’s legal structure in the sense that they are the base on which the legal structure rests. If, during an earthquake, the building’s foundation is destroyed, the legal structure is left hanging in midair and is of no avail to society. During such times of trial, one must reinforce the foundations from which the entire system derives its principles and vitality. Courts owe their existence to the legislation of parliaments. However, parliaments, too, do not arise out of thin air. They are established on the basis of foundational norms and can exist only as long as those norms are upheld. Therefore, it is no wonder that normative issues like those faced by France during WWII are often beyond the ken of the courts. Our Supreme Court too, has lately failed over and over again in upholding them.

Although Israel has foundational laws to protect basic individual rights and liberties, it does not have foundational laws that protect basic national and Zionistic values. No laws, except the Right of Return, protect the State of Israel as the state of the Jews or the Land of Israel as the land of the Jews. While usually the Supreme Court is very aggressive (some say much too aggressive) in intervening to nullify laws it deems objectionable to human rights, it has recently failed to protect both the most basic individual rights and collective Jewish national rights. I refer to the majority decision of the Supreme Court regarding the legality of the Evacuation-Compensation Law, a law that deprived the Jewish nation of a part of the land of Israel, deprived about 10,000 citizens of their homes and communities in that area, and deprived those citizens of some of the most hallowed and basic human and civil rights.

More often than not, the courts do not succeed in rising above the weaknesses and failures of governments and parliaments where fundamental issues are concerned.

As the prophet Isaiah said (10:15):

“Does an ax boast over him who hews with it,
Or a saw magnify itself above him who wields it?
As though the rod raised him who lifts it,
As though the staff lifted the man!”

In the days of Isaiah, people did not know about the separation of powers that democracies strive to institutionalize, but nonetheless, Isaiah’s vivid description aptly depicts the inherent weakness in our own democratic system. In political matters, the courts for the most part continue to be the ax with which the regime hews.

The break between Petain and de Gaulle was an extra-legal and supra-judicial battle of giants, a war for the soul of the French nation. The courts, each one in its turn, were nothing but a saw in the hands of those who wielded it. De Gaulle and his followers saw a “black flag” waving over the agreement Petain signed with the Germans, and Petain and his supporters saw things differently. History, or Providence, decided between them, giving victory to the Allies.

What can we say? With due respect for the honor of Paris and the soul of France, when Paris was still swamp and forest, our Patriarch Abraham had already bought the cave of Machpela in Hebron, Rachel was buried on the road to Efrat, Jacob saw angels ascending and descending in Beit El, the nation of Israel received the blessing and the curse on Mount Eibal and Mount Gerizim, Eli was priest in the sanctuary in Shilo where Chana stood bitter of spirit and poured out her heart to the God of Israel, King David reigned in Hebron, Yotam told his parable to the city of Shechem, and King Omri bought the land upon which he built the city of Samaria.

De Gaulle led the French nation through a time of crises that entailed suffering, defeat, and humiliation lasting four short years. The nation of Israel remained faithful to Jerusalem, Bethlehem, and Hebron, to Shilo and Beit El, to Jericho and Shechem over thousands of years, in much darker exiles, over terrible, indescribable suffering and persecutions that are without comparison. If, God forbid, such a dark “Vichyist” time will come in our own history, when a prime minister in Israel will do to the Land of the Bible what Petain did to France – who can escape the comparison?


Chapter 15:

Nation – Land – State – Democracy

Here is the opportunity to put democracy in its proper place. Let us rescue it from the demagogues who have made it into a mystical sacrament, which hovers like the divine presence over human affairs and our prosaic needs – an end and not a means, a goal for its own sake instead of a propitious and preferred arrangement.

First things first: For there to be a democracy, you need a land, and then a people living on the land, and then the people living on their land need to establish for themselves a state. Only once those three elements are in place is it relevant to ask how that state will govern itself. The best solution is, of course, the democratic one. Democracy is like a protective roof, but can you substitute a roof for the building? Can a people forgo its land and exchange it for...democracy? You might as well suggest to a man that he exchange his head for a hat. Wouldn’t he ask: Without a head, what good does the hat do me? On what will I put the hat? Or, who would suggest that a man exchange his life for his health?

This is exactly what the false messiahs of “peace and democracy” are proposing: give up the heartland for the sake of democracy. But our very existence is dependent on the Land of Israel. Without the land, what will we do with democracy? If Biblical Jerusalem and the historic, religious, cultural, and emotional heart of the land are taken from us, where will we put this democracy?

A government and a parliament that abandon the land by democratic process and not due to enemy duress, lose their legitimacy. Whoever attacks such a regime, just as de Gaulle attacked Petain, will expose himself to denunciation, silencing, and persecution. It is a situation that has reoccurred throughout history. The most advanced nations have suffered historical crises that tore them apart from within. The split within the French nation caused by the French Revolution has not been erased until today. The Protestant Huguenots of France, the salt of the earth, were also forced to leave rather than betray their religious consciences. In all these instances, the national consensus was torn and sundered, and the social contract was destroyed. Gone was the basis for the people to live together in one land, under the canopy of one constitution, written or unwritten.

Wide sectors of the Jewish people living in the Land of Israel will face a trial of this kind if their government decides to abandon the Land of Israel.


Chapter 16:

A Zionist Dream in a Post-Zionist Reality: To Enjoy the Status of an Arab Village...

 Much of the Israeli Left is “post-Zionist”. This small but powerful sector is not impressed with the drama of the Jewish Nation’s return to their land after 2,000 years of exile. It is not interested in the Jewish People’s moral or legal claims to the Land of Israel. It wants “a state of all its citizens” – an abstract ideal of a secular state in the Middle East – that has no connection to religion or nationalism, whether Jewish or Muslim. For those of this ideological stripe, arguments about Israel’s unwritten constitution or the trauma to Israel’s Jewish soul carry no weight; their highest authorities are human rights and democracy. This section is for them. It demonstrates that retreat and expulsion also violate the norms of democracy and core human rights.

It is claimed that opposing the relinquishment of parts of the Land of Israel is anti-democratic since a democracy does not permit a minority to impose its views on the majority. Let us assume only for the sake of argument, that the majority supports the destruction of Jewish communities and the expulsion of their inhabitants, although in the actual case of Gush Katif and Northern Samaria, the government acted contrary to its electoral mandate.

The minority, so the argument goes, has a right to protest and demonstrate, but at the end of the day is required to accept the majority decision on every matter. This simplistic determination, while correct in general, is subject to an important caveat, which goes to the very essence of democracy. As discussed earlier, fundamental human and civil rights cannot be abrogated by majority decision. Only once this basic ground rule is observed, do the democratic “rules of the game” come into play.

A regime lacking basic respect for universal human rights – the rights to life and property, to freedom of conscience, expression, and assembly, the right to fair and impartial justice and to equality under the law – such a regime is no longer a democracy. Therefore, when we say a democratic state “cannot” abrogate basic rights, we mean that it cannot do so and still remain a democracy.

Gush Katif 2005 – in the stream of exiles

 The expulsion of the Jews from Gaza and the Northern Samaria and the destruction of their communities violated many basic and universal rights, and therefore seriously damaged Israel’s democracy. From here it follows that whoever opposed this expulsion, including by means of non-violent disobedience, followed in the best tradition of Western enlightened democracies. These opponents defended both the national and universal values that were violated by the brutal expulsion.

Let us revisit what happened in Israel. A government sent the armed forces of the state to physically wipe out strongholds of the governing majority’s political and cultural rivals, uprooted about 10,000 citizens by force from their homes, turned them into refugees, and cut off their means of support.

A similar act undertaken by the government of the former Yugoslavia in Kosovo against its Muslim citizens was considered a crime against humanity. The person responsible for this “ethnic cleansing”, Prime Minister Slobodan Milosevic, was tried before the International War Crimes Tribunal in The Hague. He died in prison.

Both in Kosovo and in Gaza and Northern Samaria, the victims were citizens of the expelling state and they were slated for expulsion based on their religion alone. In Kosovo, Muslims were expelled because they were Muslims; in Israel, Jews were expelled because they were Jews.

For this reason, the “Disengagement” was not only a national crime – as detailed in previous sections – but also a crime against humanity.

Let us ask: did the government have the option of abandoning Gaza and Northern Samaria, thereby transferring sovereignty over the areas of Jewish settlement, as long as it did not violate the individual rights of the Jewish residents – in other words, leaving them in their homes and communities to their fates?

History has provided numerous instances of territories and their residents undergoing changes of sovereignty in the extreme context of war and its aftermath. In many cases, the residents were given the choice of either staying in place and receiving citizenship of the annexing country or retaining citizenship of the withdrawing state and physically leaving with it. The Italian Ticino region was transferred to Switzerland. The Alto Adige region (Southern Tyrol), which is mainly German speaking, was transferred to Italy. Posnan changed hands from Poland to Germany (Prussia) and back; Alsace-Lorraine changed hands a number of times between Germany and France. In all the above instances, residents were allowed to remain in their places.

Extrapolating from historical precedents, Israel could apparently have withdrawn from territories and left its Jewish residents in place, whether as Israeli or Palestinian citizens. In such a case, the settlers and their supporters could not have claimed that democratic fundamentals were being violated.

But only apparently. In reality, no Jews under the “protection” of any Palestinian regime would have a chance of remaining alive, never mind enjoying fundamental human and civil rights such as are enjoyed by the Arab citizens of Israel. Indeed, the certain death sentence that would await any remaining Jews was the Israeli government’s justification for the expulsion and the planned future expulsions. It follows that any proposals purporting to give the settlers a choice to stay in their homes or to leave with the withdrawing army, would be nothing but an empty gesture. What animal with its survival instinct intact would choose to remain caged alone with a tiger?

If the situation is such that a decision by the government of Israel to withdraw from territory necessitates the forced expulsion of the territory’s Jewish inhabitants, which interest deserves precedence? The political interest of the current leadership to withdraw from territory it perceives as not in the nation’s best interests to maintain, or the human and civil rights of the minority, the preservation of which precludes the possibility of withdrawing?

In deciding, let us remember that the state itself settled some 300,000 of its citizens in these territories starting 40 years ago. The settlers sunk deep roots, both physical and spiritual. They invested their energies, their youth, their dreams, and their future in the patriotic mission of reclaiming their people’s heritage. Their livelihood is dependent upon their dwelling places: they built their homes there, they planted trees, fields, and vineyards, they built hothouses, established synagogues and houses of study, they set up educational and cultural institutions, and they established industries. The vistas of Judea, Samaria, and Gaza are the vistas of the childhoods of their children and grandchildren. Neither is the amount of blood they spilled on its soil negligible, nor the number of graves dug. The shocking memories of dozens of synagogues ablaze in Gush Katif – a sight unseen since Kristallnacht 1938 was now repeated in the State of the Jews – and dug up graves with their remains exhumed, these are wounds that continue to bleed, and are bound to leave ugly and permanent scars on the nation’s psyche.

Can all the above trump the majority’s decision?

To answer this question, let us turn from the Jews to the Arabs – on both sides of the Green Line – against the background of what the majority perceives as a demographic threat.

There are two conflicting reactions among the Jewish-Israeli public to the perceived demographic threat posed by the Arabs. A substantial number of Israelis (perhaps at times even a majority) support a “solution” involving the transfer of as many Arabs as possible out of Israel, whether by voluntary means such as providing monetary incentives, or by force. However, there also exists a solid majority, comprised of both the political right and left, for whom such an idea is beyond the pale, outside of any legitimate political debate, non-existent in the political and diplomatic lexicon of Israel.

Here we have before us a diplomatic step that the majority sees as being in the clear interest of the state, but is nonetheless regarded as being beyond consideration. There is a general consensus that any political or diplomatic moves to solve pressing and even existential national problems cannot come at the expense of the fundamental rights of the Arab minority. It was in this spirit that Israel’s Supreme Court ruled regarding the location of the separation fence, and it is in this spirit that it never even occurred to anyone to uproot an Arab village to establish a defensible border. In any negotiation over a new map, the location of every Arab village is considered an unalterable given; every negotiator and planner accepts this as a fixed working assumption.

If so, why is the government of Israel unprepared to extend the same logic to Jewish settlements? This is not a matter of international or domestic law; it is a psychological problem, a problem in the soul of the nation. The destruction of Jewish settlement is not mentioned in the Oslo Accords or even in the “Road Map”, which calls only for “freezing” Jewish settlement. At the dawn of the 21st century, it is unthinkable for an international document to call for what, for all intents and purposes, is ethnic cleansing. It is also inconceivable that any foreign power would send its army to execute the expulsion of Jews from the Land of Israel. Only the Jews themselves decided on the expulsion; only they volunteered to execute it against themselves. There are those who see such behavior as a hereditary defect in the nation’s genetic pool.

To complete the picture, we need add that Jewish settlement in Judea, Samaria, and Gaza and the parts of Jerusalem that were annexed to Israel in 1967 were executed by formal governmental decision. The government both funded and implemented these decisions. It encouraged Jewish settlement in these areas, materially and in spirit. Legal representatives of the government called before Israeli courts rejected claims that Jewish settlement in Judea, Samaria, and Gaza contravened the Geneva Convention. Although the government did not annex those territories, it purposefully used the term “administered territories” and avoided the term “occupied territories”. The government of Israel’s stance, that Jews have a right to settle in all parts of historical Israel west of the Jordan River, was expressed publicly by representatives of the government on every international platform and in all the courts of the land.

All this should suffice to substantiate the modest claim that Jewish residents in Judea, Samaria, Gaza, and East Jerusalem have rights in no way inferior to those of any Arab village to continue residing in problematic areas. In any diplomatic arrangement arrived at, they too have the right to stay on living securely within their communities and enjoying fundamental rights. If the State of Israel could secure its Jewish citizens those guarantees, then from a purely democratic and human rights standpoint – without reference to the nationalistic aspect – there would be no objection to handing over those territories to a foreign power.

In conclusion: as long as the rights of Jewish settlers cannot be guaranteed – foremost among which is the right to life – Israel cannot legitimately retreat from any territories. In the course of two generations, irreversible facts on the ground were established and rights were acquired that cannot be overturned – even by a democratic majority. And here is the proof: As part of the political discussion of the Arab demographic problem, there have been proposals to transfer the town of Um Al-Fahm to Palestinian sovereignty, together with its inhabitants. However, there is not a political party in Israel that ever considered the notion of expelling the residents of that city over the border while leaving its land in Israel’s hands.

Prominent political and cultural leaders of the Left have publicly proclaimed that the expulsion of Arabs, even at the behest of a democratic majority, would justify and compel revolt against the government. As an example: Yossi Sarid and Yair Tsaban, both former government ministers, called on the army not to obey an expulsion order (Yediot Achronot, June 27, 1990). Amos Oz called for “splitting both from the army”, “lying under the wheels of the trucks”, and even “blowing up bridges” to stop such a move (On Democracy and Obedience, published by “Yesh Gvul”, 1990).

We cannot conclude this section without quoting from the ruling of the Supreme Court in an appeal by Arabs from Judea and Samaria whom the army intended to temporarily transfer to Gaza as part of a tactical operation against terrorist warfare:

Removing a person from his place of residence, and forcibly transferring him to another place is a serious blow to his honor, freedom, and property rights. A man’s house is not merely a roof over his head, but is also his physical and social placement in his private life and in his social relations. A number of basic human rights are violated by uprooting him against his will from his home to a different place, even if such a move doesn’t require his crossing a national border. (Supreme Court decision 7015/02 – Ajuri).

Against the background of this ruling, the expulsion of law-abiding, innocent Jewish citizens by a Jewish government can be measured in its true, outrageous dimensions.

On the eve of expulsion from Neve Dekalim: the tears

Neve Dekalim – Paradise Lost


Chapter 17:

The Disconnection of the State of Israel from the Jewish People

 Earlier we asked if the State of Israel was established in order to grant the nation of Israel the unprecedented “privilege” of having a legitimate representative to renounce its right to the Land of Israel in favor of the PLO or Hamas.

The time has come to return to this question and to answer it seriously and without irony: The State of Israel is NOT the legitimate representative of the Jewish people to surrender the Land of Israel to foreigners. It has no authority to do so on behalf of the Jewish people living today in Israel and in the Diaspora, or on behalf of all the generations past and future. Decisions to retreat, abandon, flee, concede, expel, and uproot cannot obligate the individual Jew or the entirety of the Jewish people, just as the apostasy of some rabbis and community leaders following the persecution of the Jews in Spain, or the conversion to Islam of the false messiah Shabtai Zvi, did not and could not obligate the Jewish people.

Governmental decisions to turn the Land of Israel into Palestine can obligate, at most, the executive bodies of the state such as the military, the civil administration, the police, and the civil bureaucracy, to make administrative changes. However, those decisions cannot touch the deep-rooted connections to the Land of Israel. A government administration and a Knesset can exile themselves from the heart of the Land of Israel – and with them the legal and judicial framework called a state – but only at the price of nullifying their right to speak in the name of the Jewish nation, and of canceling the “power of attorney” that that government assumed in the name of the Jewish people.

 “Who appointed you?,” the Jews asked Herzl when he presumed to negotiate with kings and heads of state “in the name of the Jewish nation”. By way of answer, Herzl claimed “negotiorum gestio”, a Roman legal concept that states that he, who comes to the rescue when the homeowner is absent, is permitted to act without obtaining formal consent. He who comes to extinguish a fire is permitted by law to break into the house without asking questions. Sadly, a State of Israel that disclaims the power to hold on to the nation’s heartland abdicates its right of negotiorum gestio, Herzl’s legacy. From that time on, the state would be nothing more than another Jewish society on the fringes of the historic Land of Israel.

 An unwritten power-of-attorney


Chapter 18:

Back to Rabbi Nachman

Earlier we quoted from Rebbe Nachman’s poetic longing for the Land of Israel. Here we bring his normative formulation of the eternal legal connection to the Land of Israel that no errant government – even if it is the government of Israel – can sever:

Even though they stole from us the Land of Israel
which is our land and our inheritance
And even though we lack the power to take it back from them due to the flaws of our deeds,
nonetheless we pray and we shout to Heaven always ---
that the Land of Israel is ours,
because it is our inheritance,
and in so doing we protest against the Adversary,
so they know that their possession is no possession at all.
The Land of Israel is ours from our Fathers,
and in the end we will take it back from out of their hands, with God’s help...
I refer to the physical, literal Land of Israel
with its houses and courtyards...

The matter of “protest” requires explanation. According to Jewish law, an owner of real estate loses his legal claim against squatters if he allows a number of years to pass without “protesting”.

The remembrance of Zion and Jerusalem by the Jewish people by “praying and shouting” 365 days a year is not just prayer, but also a legal act which prevents the statute of limitations from running out on our legal claim to the land during our absence from it. Indeed, from the day we were exiled from our land to the day these lines are being written, the nation of Israel hasn’t stopped “protesting” even one day.

Not in his worst nightmare could Rebbe Nachman have imagined that a Jewish sovereign government in Zion would willfully “steal from us” the Land of Israel to give it to another people. Rebbe Nachman wrote about foreigners “stealing from us”. The possibility of voluntarily surrendering the land obviously never occurred to him, because once our rights are voluntarily abdicated, any further “protest” would be to no avail. Unless, that is, the people “shout” and insist that the abdicator, even if it be the Jewish government of the State of Israel, has no right or authority to execute such a historic crime, and there arises among us a Jewish De Gaulle who will declare the surrender null and void and act accordingly.

We believe that the prayers and shouts of Rebbe Nachman still echo in the ears of many in Israel and that his “protest” pulses in their blood – whether in religious or secular form. These Jews will feel themselves obligated to grab this White Paper of surrender and tear it to pieces.

The ascent to Elon Moreh


Chapter 19:

Jews in the Surrendered Territories

 Let us consider the highly improbable, purely theoretical, but nevertheless intriguing supposition that after the state withdraws the army, police, and civil administration from Judea and Samaria, hundreds of thousands of Jews remain in these territories. They might likely be joined by others from Israel and the Diaspora who will pour in as an “emergency call-up” to save the land. As we have seen, these Jews will consider themselves completely exempt from and unbound by the governmental abdication. They will no longer maintain an attachment to the state that turned its back on the land and on them.

On the one hand, should the state again try to drag tens of thousands of Jews out of their homes by force, this time spilling blood in the process, widespread rebellion against the state is possible. The after-shock of the first expulsion from Gush Katif and the barbarity in Amona are making their influence felt already in society and in the army. We are not referring only to the deportees and their supporters. Also in the hearts of the perpetrators of the crime and their families, fierce inner conflicts are to be expected. The whole process will bring the state to the edge of the abyss. Even in the most optimistic scenario, after such an earthquake, nothing in Israel will be the same.

On the other hand, if Jews succeed in remaining in Judea and Samaria after having refused a third exile, they will have no choice but to create a new existence and experience a new reality: Jews (will they still be citizens of the State of Israel?) living in the Land of Israel outside the State of Israel.

How long will these Jews be cut off from the state before the army will be forced to return to prevent a “Super Sabra and Shatilla” or to stop the rain of rockets that will transform life in the coastal cities into a hell? How long will the Israeli “Vichy government” maintain power in post-retreat Israel? How will the Jewish communities of the Diaspora relate to that Israel?

What will be the relationship of the Jewish entity in Judea and Samaria with the state on the one hand and the Jewish Diaspora on the other? Will the State of Israel and Judea-Samaria compete for the hearts (and money) of the Jews of the Diaspora? Will a new Jewish culture develop in Judea and Samaria? Will there be separate courts that will make separate and conflicting rulings, like the French courts that judged, each in its time, De Gaulle and Petain?

Will the two separate entities continue to wage the same cultural war that is raging even today among the people of Israel on both sides of the Green Line? Here, a Zionist state in its simple meaning of the return of the people of Israel to Zion, and there, a secular-democratic state who relinquishes Zion to the Arabs? Will the Jewish masses in the State of post-retreat Israel allow the decline of the Zionist ideal to continue unchecked or will we perhaps witness a reaction in the form of a repentance movement or a national soul searching, a re-Zionization instead of a de-Zionization?

These are questions that, whoever knows how to, should pray that they never need be answered.


Chapter 20:

Rehoboam the Second

 The Prime Minister of Israel is facing the fateful choice faced 3,000 years ago by Rehoboam, the son of King Solomon.

Rehoboam inherited a united kingdom. Cautious advisors, the “elders”, pleaded with him not to pull the leash too tightly because he lacked wide popular consensus. However, inexperienced and arrogant counselors, “the children”, goaded him to apply all his muscle: “my father flogged you with whips, but I will flog you with scorpions.” Those words led directly to the division of the nation into the kingdoms of Judea and Israel.

Will a second Rehoboam arise today? Will all the basic covenants uniting us – social, political, cultural, and religious – be violated? In our day too will the people and the kingdom split?

If so, even the truncated state that will remain after all the “disengagements” and “convergences” will be far from idyllic. A post-retreat government will have to contend with a severe spiritual estrangement even on the part of those segments of society who were passive throughout the upheavals and took no part in events. Many will leave the country, whether out of protest, out of despair, or out of a lack of identity with a state castrated of every ideal and all striving. The emigrants will abandon a country threatened in its caricature borders, subservient to the US State Department, and reduced to the status of a protectorate under a board of supervisors of the Quartet – in short, a state in name only, stripped of its last shred of honor.

But even the ones who stay, whether for lack of opportunity to emigrate or because of their natural and unshakable sense of belonging to their homeland, will be an embittered and divided public. Many will develop guilt syndromes that will dwarf the scars left by the Yom Kippur War. Also, the division of the nation will not end with a truncated state. It will become clear very quickly that the fate of the land remains undecided, with the Arabs always returning with additional demands. The internal fractures will continue and even worsen; they will be replete with bitter recriminations.

Moreover, the physical danger to the dismembered state will be intensified even beyond what could be expected of such compromised borders (Jerusalem, Afula, Netanya, Hadera, Ben Gurion Airport, Petach Tikva, Kiryat Gat, Beersheva, Ein Gedi – all of them border towns!). The principle security threat will arise from the divided state of the nation, from the internal destruction that will severely impact the IDF.

Rehoboam the Second will quickly discover the depth of his error, in trading peace between Jews for “peace” with the Arabs, and war with the Arabs for war against Jews. Not only because “peace with the Arabs” is an illusion and a death trap, but because there is simply no equivalence and symmetry between the two alternatives. One can win a war against an enemy, but in a civil war, even without massive violence, there are no winners. Both sides lose; both are vanquished.

 Amona: the flag is burned

Katif Junction (the Hebrew sign reads: “Be Back Soon”)


Chapter 21:

Fifty Years of Hindsight Later

A school in Jerusalem, the capital of Greater Palestine, prepares for the 50th anniversary of the liberation of the Palestinian homeland from the Zionist occupation.

Teacher: What were the historic roles of Zionism and the occupation?

Student: Originally we thought we were part of the Arab nation of Southern Syria, until the opposition to Zionism consolidated our identity and aroused in us a national consciousness as a separate nation, even with a unique history, thousands of years old, as we learned from the Jews.

Teacher: And what was the historic role of the conquest of the West Bank by the Zionist army back in 1967?

Student: The Zionist army liberated the Palestinian nation from the yoke of the Jordanian occupation, which never, ever would have allowed a Palestinian sovereign entity to arise. The occupation authorities of the Jews built for us the physical, educational, and political infrastructure for independence.

With the Oslo Accords, they gave us the means and the territory to conduct two wars of independence, at the end of which the Zionist general Sharon surrendered and fulfilled our dream of a Palestinian state.

Zionism made us into a people; the occupation gave us a state.

* * *

One hundred and fifty-four years earlier, the prophet of the State of the Jews prefaced his book Old-New Land by saying that “if you will it, it’s not a dream.” In the book’s epilogue, however, he added a less famous message:

...and if you do not will it, then all that I told to you is a fairy tale...dream and deed – they are not as different from one another as people are inclined to think. Because all the deeds of men are founded on dreams and return to dreams.

The founding generations willed it, and the dream became reality. If the inheriting generations will not will it, the reality will return to being a dream.

But even Herzl did not foresee the nightmare of a Jewish state transformed into an Arab-Palestinian state.


Chapter 22:

An Idol in the Temple – Civil Disobedience in Ancient Judea

 The earliest known case of mass civil disobedience is described by Prof. Joseph Klausner in his article “The First Pogrom and the Idol in the Sanctuary – When a Nation Fights For Its Freedom” (Political Editions, Tel Aviv, 1936):

The Roman Caesar Caligula promulgated an edict to erect his statue in the Holy Temple in Jerusalem, where the eyes of all Jews are eternally fixed. It fell to Petronius, recently appointed procurator of Syria, to fulfill the edict. Caligula ordered Petronius to take with him half the Roman army camped on the Euphrates to suppress any opposition to the statue’s installation.

News of the edict reached the Land of Israel and caused terrible agitation and anguish amongst the Jews. Many refused to believe the bad news, but were quickly forced to admit the worst. At the end of that winter, in the year 40 A.C.E, Petronius and his army arrived in Acre. Phoenician artists had already crafted the statue in Sidon.

The news spread with lightning speed in Judea, and the nation was struck with fear and trembling. Not just the elite or the scholars, but the entire nation.

Apparently there were individuals who conducted an intensive campaign to arouse the people against the desecration during the months between the end of the winter and the start of the harvest. At harvest time, Jews from towns and villages by the tens of thousands started streaming towards the plain of Acre, until a great mass of people gathered before Petronius and his stunned army. “Like a cloud, the masses of Jews covered the whole land of Phoenicia,” Philo relates.

Before long, a terrible wailing broke out from among the sea of Jews and shocked the Roman noble, Petronius. The great mass – organized in six groups, old men, men, and boys on one side, and old women, women, and girls on the other side – fell on their faces and begged for mercy for the Temple:

We have not come to fight, but there are only two possibilities: Either you do not erect the statue or you kill the whole Jewish nation to the last person. Behold, our necks are stretched out towards the executioners. Only when not one of us is left alive will you fulfill the decree of the Emperor Caligula.

The heart of the Roman was stirred. His armies possessed tens of thousands of swords while there was nothing in Jewish hands. Nonetheless, he felt powerless in the face of the tremendous power demonstrated by this mass. Great was the moment when Petronius, one of the better Romans, withdrew together with his mighty legions before this people, who were risking their lives and those of their loved ones to sanctify God’s name.

To buy time, he moved his servants and advisors to Tiberius, but when the Jews found out, they all picked up and moved to Tiberius, spreading their enormous camp before the city. By now, it was the time for sowing, but the Jews neglected their fields. For forty days they camped outside the city, beseeching Petronius to annul the evil decree. Petronius knew that Caligula would never forgive a procurator that would dare to refuse his command. But the self-sacrifice of the Jews, whose like he had never seen nor heard of, moved him greatly. He was held by an inner compulsion to risk his life for their sake. He promised to try to avert the evil decree and wrote to the Caesar asking to postpone the statue’s erection. The request aroused the fury of Caligula, who answered him with a missive accusing him of bribery by the Jews and ordering him to kill himself as punishment.

Petronius’ life was saved only because the ship that carried news of Caligula’s murder arrived before the ship that carried Caligula’s decree against Petronius, which was delayed by a storm.

 Settlement in the Land of Benjamin



In our day, the decree that Ehud Olmert and his camp seek to impose on Israel does not come from a foreign ruler, and death does not threaten those who oppose it. Like in Petronius’ day, it would only take tens of thousands to annul today’s evil decree, on the condition that they stand firm and not be deterred by prison and detention camps.

Let us hope that the people of Israel arouse themselves again as they did during the time of Caligula. These latter-day dissenters would add a noble chapter to world history by contributing once again to the universalist tradition of fighters for freedom and human rights from Socrates to Martin Luther King. More importantly, they would add an honored chapter to Jewish history by following in the footsteps of their fathers who sanctified God’s name before the Roman Caesar in the Land of Israel.


It must be noted that in the recent decisions of the Supreme Court there has been a marked change in direction, as the motif of “occupation” is stressed more and more in accordance with the leftward drift in the government’s policy.

The booklet form of this paper was published in cooperation with the Gamla organization.