Former Deputy Attorney General Nahum Rackover has joined those claiming the directive to expel Jews from their homes in Gaza and the northern Shomron constitutes an illegal order.

Prof. Rackover, who now heads the Jewish Legal Heritage Society, recently convened a conference of Israeli experts in Jewish and Israeli jurisprudence in order to discuss the legal ramifications of Prime Minister Ariel Sharon´s disengagement plan. The conference placed special emphasis on the question of what constitutes "illegal orders.”

Speaking with the Israel Resource News Agency (IRNA), Prof. Rackover said that a 1977 law deals specifically with individual liability despite one´s acting on the basis of superior orders. The statute states that though one is normally not responsible for actions committed on the basis of orders from a superior, an important exception is made for those orders that are "obviously illegal." In such a case, the individual has a legal right and obligation to disobey the order.

Prof. Rackover also cited a section of the Israeli Military Code (no.125, enacted in 1955) that provides similar guidelines on the issue. “IDF Soldiers have no obligation to fulfill a command that is obviously illegal.” Prof. Rackover noted that Israeli military courts have consistently placed individual responsibility on soldiers who failed to act accordingly. The most oft-cited example of this principle was in 1957, when IDF soldiers were convicted after following an order to fire upon a busload of Arab workers from Kfar Kassam during a curfew they were not aware of at the time of the Suez campaign. Every IDF soldier who participated in the incident was convicted of following what constituted an illegal order.

Regarding the legality of Sharon´s current policies, Prof. Rackover cited the works of Law Professor Eliav Shochetman, who argues that there exists a right for the Jewish people to settle the Land of Israel, based on historical and international agreement and law. Any actions which would prevent or negate this right would therefore be considered illegal. Prof. Shochetman derives this historic right from the decisions and guidelines set forth by the League of Nations and the United Nations, in addition to other sources.

Shochetman also addressed the aspects of Jewish law involved, citing the views of Jewish legal authorities, including former Chief Rabbis Avraham Shapira and Mordechai Eliyahu, to support the position that Sharon´s current policies, which require the expulsion of Jews from their homes in the land of Israel, constitute an illegal act.

Prof. Rackover also referred to sources explaining that the Jewish legal obligation to settle all areas of the Land of Israel, according to the Rambam (Maimonides), is a divine precept from the Torah, and that it would therefore be illegal to forcibly remove Jews from any place in Israel. Prof. Rackover quoted Maimonides (Yad Hazaka, The Laws of Kings, Chapter 3, Halacha 9), saying “It goes without saying that if a ruler issues a decree contrary to a Torah law, one must disobey.”

Prof. Rackover also dealt with the human-rights aspect of the Prime Minister’s plan, citing the basic law of the state of Israel that accords every individual the right to his or her own body, dignity, and property. He also noted the opinion of the late Deputy President of Israel’s Supreme Court, Judge Haim Cohen, who said that forcing someone from their home is worse than killing them.

Though Prof. Rackover believes that Sharon’s plan is not only undemocratic but constitutes a blatantly illegal order, he says it remains to be seen what exactly makes an order "obviously illegal" in the eyes of Israeli law. “Is this to be determined by the individual or society at large?” he asked, noting that Israeli military courts do not seem to support this view at this time. (IsraelNationalNews © 01/27/05)