One Must Not Obey an “Illegal Order”

Israel’s former Deputy Attorney General, Professor Nahum Rackover, now head of the Jewish Legal Heritage Society most recently convened a brain trust of Israeli experts in Jewish and Israeli jurisprudence to discuss the legal ramifications of Prime Minister Sharon’s current policies.

Specifically, Prof. Rackover’s conference addressed the question what would define “illegal orders”, as defined through both Israeli and Jewish law.

Meeting Prof. Rackover at his home in Jerusalem, I asked him about the dimensions of the Israeli law on the topic of what would constitute an “illegal order”.

Prof. Rackover pointed to a 1977 law that deals with individual liability despite one’s acting on the basis of superior orders.

That statute clearly states that one is in fact normally not responsible for actions committed on the basis of such an order.

However, an important exception is made for those orders that are “obviously illegal.”

In such a case, the individual is responsible and liable to any resulting punishment.

According to Prof. Rackover, the individual then has a legal right and obligation to disobey an obviously illegal order.

Prof. Rackover also referred to a section of the Israeli Military Code (no.125, enacted in 1955) which provides similar guidelines on the issue: IDF Soldiers have no obligation to fulfill a command that is obviously illegal. Rackover notes that Israeli military courts have repeatedly placed individual responsibility on soldiers who failed to act accordingly (the 1957 case in which IDF troops were convicted of following an illegal order to fire on a busload of workers from Cfar Kassam during a curfew at the time of the Suez campaign was cited as the most well known example in this regard. Every IDF soldier who participated in the incident was convicted of following what constituted an illegal order).

Regarding the legality or illegality of Sharon’s current policies, Rackover introduced the works of Law Professor Eliav Shochetman, and mentioned that Shochetman argues that there exists, based on historical and international agreement and law, a right for the Jewish people to settle the Land of Israel. Any actions devised to prevent or negate this right would therefore be considered illegal.

Shochetman derives this historic right from the decisions and guidelines set forth by the League of Nations and the United Nations, among other sources.

Rackover, drawing from Shochetman’s work, has addressed the aspects of Jewish law involved. He cites the views of the former Chief Rabbis Shapira and Eliyahu, and the various positions and decisions of other authorities in Jewish law, to support the position that Sharon’s current policies which require expulsion of Jews from their homes in the land of Israel as being an illegal act.

Prof. Rackover referred to sources which explain that the Jewish legal obligation to settle the Land of Israel, in all areas according to the Rambam, as a divine precept from the Torah, and that it would therefore be illegal to withdraw Jews from any areas of the land, and is forbidden for one to participate in such actions.

According to Prof. Rackover, citing Maimonides in “The Laws of Kings” (chapter 3), one in fact has an obligation to disobey a king who issues an illegal order.

Additionally, Rackover briefly dealt with the human rights aspect. He pointed to the basic law of the state of Israel, including a 1994 Knesset law, which accords every individual the right to his or her own body, dignity, and property. Rackover also noted the opinion of the late Deputy President of the Supreme Court, Judge Haim Cohen, that it is worse than killing to force someone out of his/her home.

One question that remains is what makes an order “obviously illegal”: Is this to be determined by the individual or society at large? While Rackover personally believes Sharon’s plan – which he labeled “undemocratic” – would fall under this category, and therefore necessitate disobedience, he noted that Israeli military courts at the present would not seem to support this view.