Prof. Paul Eidelberg
On September 2, 1997 a Jerusalem Magistrate Court handed down a verdict of guilty
of sedition to Moshe Feiglin and Shmuel Sackett, Co-Chairmen of Zo Artzeinu
(This is Our Land). A pre-sentencing hearing has been set for October 27, 1997.
This is the
first time in the history of the state when a Jew was convicted of sedition.
Feiglin and Sackett could face stiff jail terms.
The verdict was based on actions taken by Feiglin and Sackett in 1995 during
the Rabin-Peres regime. Their crime was organizing thousands of demonstrators
across Israel and blocking main intersections in protest against the Israel-PLO
Declaration of Principles. Since these principles require Israel to withdraw
from Judea, Samaria, and Gaza, their
implementation, Feiglin and Sackett believed, endanges Israel's existence.
Now it should be borne in mind that the Israel-PLO Declaration of Principles
were ratified on the White House lawn and virtually imposed on the people of
Israel in September 1993. This agreement was never subject to public debate
nor even to serious Knesset debate, something unheard of in any genuine democracy.
It should also be borne in mind that this agreement required Israel to surrender
Jewish land to the PLO, a terrorist organization still specified as such in
Israel's criminal code.
Let us reflect on this case seriously. There are two basic issues here.
The first is whether Israel is a democracy. If Israel is a democracy, then organizing
a non-violent mass demonstration against implementation of the Israel-PLO Declaration
of Principles is not a matter of sedition but of civil disobedience.
The second issue concerns the nature of those principles: were they consistent
with the laws of the state, and were they consistent with the known convictions
of the Jewish people? Twenty-six prominent citizens of Israel submitted a scholarly
petition
to Israel's Supreme Court challenging the legality of the Israel-PLO Agreement.
The Court refused to consider the petition on the merits, claiming it involved
a political and not a justiciable issue. This was a questionable decision since
the petition clearly stipulated that members of the Government, by negotiating
that agreement, had violated Israel's
criminal code.
The question of legality aside, it may well be argued that the Israel-PLO Agreement
also violated the convictions of a large majority of the Jewish people. It cannot
be said too often that the Labor-led Government that concluded that agreement
came to power as a result of deception. Its leaders had promised the electorate
there would No recognition of the PLO, No Palestinian state, No negotiation
over Jerusalem (and, most emphatically, No withdrawal from the Golan Heights).
Those campaign pledges affirmed the profound beliefs of large majorities of
the Jewish people attested to by professional polls prior to the June 1992 elections
-- the elections that brought Labor to power.
Accordingly, Feiglin's and Sackett's protest against implementation of the Israel-PLO
Agreement was, in effect, a protest against the Government's betrayal of its
pledges to the nation on matters involving the very borders and capital of the
state. Theirs was a non-violent protest against a Government that did not truly
represent the Jewish
people, which is why that Government was rejected by the people in May 1996.
That the Netanyahu Government has adhered to the policy of its predecessor only
proves that periodic multiparty elections alone do not provide an adequate foundation
for democracy or popular sovereignty.
Feiglin and Sackett are learning this the hard way. Indeed, these two patriotic
Jews -- who should not spend a single day in prison -- misconceived the nature
of their protest in relation to the nature of Israel's political system. They
engaged in non-violent acts which they and many others believed to be acts of
civil disobedience comparable to those associated with the civil rights movement
of Martin Luther King. Like many others, these decent Jews suffer from a basic
fallacy: they applied certain principles of American democracy to the State
of Israel, a state which is not and never has been a genuine democracy, as the
present writer has so often demonstrated.
As is well known, Martin Luther King engaged in civil disobedience vis-à-vis
the segregation laws of various American state legislatures. But he justified
his acts of civil disobedience by arguing that those laws violated the American
Constitution, the supreme law of the land. Israel has no constitution. The supreme
law of the land consists of the statutes enacted by the Knesset. But the Knesset
is virtually impotent: it has never toppled a Labor- or Likud-led Government
by a vote of no-confidence. Political power in Israel is concentrated in the
Government, in its party leaders, whose WILL or policies may be quite contrary
to the will or convictions of the people.
And woe be it to any judicial body that condones acts protesting the implementation
of the Government's policy of "territory for peace" -- whose implementation
is precisely what Feiglin and Sackett, as patriotic Jews, were trying to prevent.
It needs to be emphasize that the same act, which in a democracy may be classified
as "civil disobedience," may be classified as "sedition"
in an oligarchy. In a democracy, an act of civil disobedience is directed not
against the existence of the government but
against a particular law. In an oligarchy, however, that same act will be treated
by the government as an attack against itself. This is why civil disobedience
in a democratic America may constitute sedition in undemocratic Israel.
And by the way, this is why Israeli governments have sometimes placed people
under "administration detention" for months at a time without trial
and without informing them of the charges, something unheard of in a democracy.
At this point it may be asked: "What about the many Arab citizens of Israel
who are known to have aided terrorists and have even committed terrorist acts
against the state?" "What about Arab Knesset Member Hashim Mahmeed
who, in 1991, said this to Arabs in Gaza: 'By the Intifada we mean not only
the stone but the war ... Palestinians must fight the conquerors with all the
means they have.'" "Why weren't these Arabs indicted for sedition?"
The reason is painfully simple. Neither Labor nor even the
Likud wants to alienate Arab voters!
The truth is that Feiglin and Sackett were indicted for sedition for political
reasons. As for the Court that convicted them, I will say only this. What prevails
in Israel is not the rule of law but the rule of men. This is inevitable in
a country that lacks a written Constitution, a country, moreover, in which sovereignty
is located in the State, not in the People.