Prof. Paul Eidelberg
During Israel’s February 2009 election campaign, Binyamin Netanyahu was studiously silent about the paramount issue of that election: the “two-state solution” to the Israeli-Palestinian conflict. Since Netanyahu had been widely perceived as a “right-winger,” many people were surprised, a few months later on June 14, when the golden orator, speaking at Bar-Ilan University, endorsed a Palestinian—really an Arab-Islamic—state in Judea and Samaria.
No public outrage followed despite the absence of any debate on this issue in Israel’s parliament. Thus, even though Netanyahu called for a demilitarized Palestinian state, and now adds that it must have an Israeli presence on its borders, I ask: “From what source did he derive the authority to give away the heartland of the Jewish people? Is Israel a parliamentary democracy, or is it a prime ministerial dictatorship? If it is a democracy based on the rule of law, why wasn’t he formally accused of violating the Treason Law concerning the State of Israel?
Perhaps this law was rendered obsolete by the Oslo or Israel-PLO Agreement of 1993? In other words, perhaps that agreement legalized what hitherto was deemed treason? If so, let’s examine the four categories of acts no longer prohibited by that law:
1. Acts which "impair the sovereignty" of the State of Israel—section 97(a);
2. Acts which "impair the integrity" of the State of Israel— section 97(b);
3. Acts under section 99 which give “assistance to an enemy” in war against Israel, which the Law specifically states includes a terrorist organization;
4. Acts in section 100 which evince an intention or resolve to commit one of the acts prohibited by sections 97 and 99.
If we consider the meaning of these acts as layman, not as lawyers, it would be reasonable to conclude that since the 1993 signing of the Oslo Agreement, every government of Israel—its prime ministers, foreign ministers, defense ministers, and other cabinet ministers, as well as every Knesset Member that voted for withdrawal from any part of Judea, Samaria, and Gaza—is prima facie guilty of treason! Perhaps this is why the Treason Law has not been applied to territorial withdrawal, for that would be tantamount to making treason legal!
Of course, some lawyers might challenge the basis of this conclusion by saying that Judea, Samaria, and Gaza do not belong to the Jews. Canadian attorney Howard Grief disagrees. His monumental work, The Legal Foundation and Borders of Israel under International Law, offers an abundance of legal evidence that this land belongs exclusively to the Jewish People. Eminent American jurists and professors of international law agree with Grief’s conclusion.
The trouble is that this conclusion has been rejected by Israel’s Supreme Court. In fact, the Court rejected petitions challenging the legality of the Oslo Agreement—including petitions attorney Grief drafted on behalf of prominent Israeli citizens. (See, for example, HC3414/96.)
Leaving the Court’s ruling aside, I want to raise an issue that has not been considered by lawyers and laymen: “Does the Land of Israel belong to the People of Israel or does it belong to the Government of Israel? This is a constitutional issue. But lo and behold, the People of Israel have been deprived of a Constitution! The Government failed to draft a Constitution, even though it was obliged to do so by Israel’s 1948 Declaration of Independence.
In contrast, the French Constitution stipulates that the territory called France belongs to its People, not to its Government. This is quite reasonable. After all, governments are transient, whereas a people constitute an enduring cultural entity. If the Land of Israel belongs to the People of Israel, we may infer that only the people can relinquish part of their land. The most fitting way of doing this is by a national referendum.
Ah, but no national referendum has ever been held in Israel on any issue—not even on Israel’s form of government! Does this mean the Government of Israel is illegitimate? Perhaps, but that would make the Treason Law and every law enacted by the Knesset a mere act of arbitrary power. Allow me to skirt this issue by assuming that tacit public consent to Israel’s form of Government makes it legitimate.
Assuming that the Government is legitimate, it does not follow that it can legitimately enter into agreements with a terrorist organization and give it any part of the Land of Israel. According to Professor Louis René Beres, agreements with terrorist organization constitute violations of international law.
Speaking more generally, agreements between Israel’s Government and any foreign entity are usually submitted to the Knesset for approval, although Knesset approval is not legally required. Notice, too, that the Knesset, unlike any legislature except Finland’s, does not require a quorum or minimum number of Knesset members to enact laws binding on the country. Therefore, the Government, supported by a minute plurality of the Knesset, can give away any Jewish territory Israel recovered in the Six Day War of June 1967. This also applies to the Jewish territory Israel recovered in the 1948-1949 War of Independence. Hence the Government can commit national suicide—and not only theoretically!
This leads to the conclusion that Israel’s Government is not the custodian but the owner of the Land of Israel. As owner, the Government can discard any part of this land regardless of the wishes of the people. Furthermore, as the owner, the Government can expel any number of people from this land.
However, the Treason Law implies that the Government does not own the Land of Israel, hence, that it cannot arbitrarily expel anyone from this land. Since governments come and go, the punishment prescribed by the Treason Law—death or imprisonment for life—indicates that treason involves acts against the People of Israel, affirming that the people own the Land of Israel.
This means that the People own Judea and Samaria. What about Gaza, or the part which the Government gave to Hamas? Giving this land to Hamas was an arbitrary act of the Sharon Government.
In fact, the political parties that opposed withdrawal from Gaza in the 2003 national election won 84 seats or 70 percent of the Knesset’s membership, and the paramount issue of that election was withdrawal from Gaza! Gaza is relevant to the issue of Judea and Samaria. It indicates that for reasons of security, cultural continuity, and simple humanity, a larger percentage of the voters would oppose withdrawal from Judea and Samaria, since this would entail the expulsion from their homes of some 300,000 Jewish men, women, and children. If this projected expulsion is not treason as well as a crime against humanity, we have abandoned logic and common sense as well as human decency.
Surely this is not beyond the comprehension of Prime Minister Netanyahu? Yet the crime of ethnic cleansing would logically follow the creation of an Arab-Islamic state in Judea and Samaria. A Government that would commit such a crime can hardly be deemed legitimate.
Logic and common sense tell me the Netanyahu Government has forfeited its legitimacy. Logic and common sense tell me this Government, like any dictatorship, stands above the law. Logic and common sense tell me this Government has betrayed its trust: to serve the people of Israel, to protect their lives and property including their homeland. Admittedly, this Government came to power by a democratic election. But a democratic election is nothing more than a means of securing the people’s God-given rights—as America’s Founding Fathers put it, their unalienable rights to life, liberty, and the pursuit of happiness, rights which may not be voted away or taken away by any majority—certainly not by the Government.
Mr. Netanyahu has virtually expressed the intention of nullifying these rights by endorsing an Islamic state in Judea and Samaria in contravention of section 100 of the Treason Law. True, he has been authorized by a ruling of a politically motivated Supreme Court to violate the plain meaning of that law. But this only confirms what Knesset Speaker Reuven Rivlin indicated in an interview published in Ha'aretz on 5 June 2003. Speaker Rivlin said, “instead of the rule of law, we have in Israel a gang of the rule of law." In that interview he alluded to Likud Prime Minister Ariel Sharon and Supreme Court President Aharon Barak.
It was in 2003 that Sharon became Labor’s surrogate prime minister by adopting Labor’s policy of disengagement from Gaza. Sharon effectively nullified the 2003 election. He was given authority to expel the Jews from Gaza by Judge Barak’s disingenuous ruling that Gaza is “belligerent occupied territory.” If, as Mr. Rivlin said, “instead of the rule of law, we have in Israel a gang of the rule of law,” no wonder treason has been legalized in this country.
*Edited transcript of the Eidelberg Report, Israel National Radio, January 25, 2010.