The real question is not whether the Palestinians are willing to accept some semantic formula having to do with the Jewish state, but whether they are ready to accept the Jewish state itself. This question is raised in all its gravity by the Palestinian demand for a “right of return” to Israel for the Palestinian refugees of 1948 and their descendants... Israel can live without any semantic recognition of the Jewish state, but not with this demand… Is the Palestinians’ current position their final word? The only way to put this to the test is by submitting a peace plan that would offer the Palestinians a viable state on the basis of the 1967 lines, with a right of return to the Palestinian state, but not to Israel. Because the present Israeli government will not produce such a plan, the United States should.

– Alexander Yakobson, “Jewish state – Semantics versus the real thing,” The Jerusalem Post, April 17.

Don’t you get it? They don’t want peace. They want victory. We should want the same.

– JPost reader “rebaaron” in a talkback to Yakobson’s article.

This is not an article for those weak of stomach. It approaches bluntly – some might say brutally – most searing issue of today, one that threatens to rip apart the fabric of Israeli society. However, the topic must be broached boldly, without allowing the niceties of politically correct protocol to blur the issues.

The legitimate limits on free speech

It has been a long accepted principle in the most democratic of nations that the right to free speech is neither unconditional nor unconstrained. This is especially true when such nations find themselves in a state of belligerency.

Thus, in the seminal ruling in Schenck v. US, justice Oliver Wendell Holmes Jr. articulated the unanimous opinion of the US Supreme Court: “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.”

In a later case, Abrams v. US, in a minority dissenting opinion, Holmes essentially endorsed his previous position – although in contrast to the Schenck case, he argued against the prosecution of the plaintiffs. With justice Louis Brandeis concurring, he wrote: “I never have seen any reason to doubt that the questions of law that alone were before this court in the cases of Schenck [et al.] were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

Legitimate limits (cont.)

In a 7,000-word study, “Media and National Security”( 2006), that I co-authored with Shabtai Shavit, former director of the Mossad, we pointed out that “although this [the Abram] opinion is commonly cited as a landmark, constituting ‘the starting point in modern judicial concern for free expression,’ it nevertheless recognized… that governments have the right – indeed duty - to restrict and even punish certain forms of expression, should they herald in ‘substantive evils’ which merit prevention.”

We were at pains “to underscore that the raison d’être invoked for the curtailment of free expression in democratic societies is not founded on the conviction that the incumbent regime has… a monopoly on the truth – and thus all dissenting opinion should be suppressed as inadmissible falsehood. Rather it is based on the concern that freedom may be abused and exploited to harm the democratic collective, and the freedoms it stands for.”

It is this potential abuse of individual rights and freedoms that may imperil collective freedoms and rights which comprises the major thrust of the ensuing discussion – in which, I should stress, the opinions expressed are mine alone, and should not be attributed to my esteemed co-author.

Debating when dissidence becomes disloyal

In the past two decades, free speech in Israel has run wildly out of control.

For some time, the kind of policies propagated by leading public figures far exceed the bounds of what a rational society can condone as conforming to any commonsense constraints of national loyalty.

A particularly grievous example of this insidious intellectual impropriety featured recently in the iEngage series of articles, which are produced by scholars of the Shalom Hartman Institute and frequently appear in the Post’s opinion section, as well as on the institute’s website.

This was a piece, “Jewish state – Semantics versus the real thing,” by Hartman’s Alex Yakobson. It asserted, rightly, that Israel cannot live with the Palestinian demand for “right of return” and the potential influx of millions of Palestinian-Arabs into its pre-1967 borders.

However, according to Yakobson, explicit Palestinian recognition of Israel as a Jewish state “is not a real deal-breaker.”

He claims this is something that Israel could forgo; and by means of contorted and convoluted semantic “gymnastics,” some “mutually acceptable formula can be found.” This would permit the Palestinians to refrain from overtly conceding that Israel (even in its pre-1967 configuration) is the nation-state of the Jewish people – provided that, substantively, any “right of return” is restricted to a Palestinian state established in the areas across the pre-1967 lines.

I will elaborate on why I find this Yakobson article so pungently offensive, and why it tests the limits of loyalty, a little later. However at this juncture, allow me a short legalistic digression.

Time to reinstate the ‘T-word’?

Ever since the assassination of Yitzhak Rabin in 1995, and its cynical exploitation death by the proponents of political appeasement and territorial concessions, any honest discussion of what comprises disloyalty to the State of Israel has been viciously repressed. Any hints of raising for public debate the question of how far-reaching the willingness to accommodate (read “surrender to”) enemy demands can be tolerated before it violates accepted/ acceptable bounds, has been delegitimized as dangerous incitement.

This has created the impression that virtually nothing, however preposterous and pernicious, can be classified as treasonous, which obscures the fact that in today’s penal code, there are at least seven clauses that deal with the issue of treason (97 to 103) and refer to four offenses for which the death penalty can be imposed.

Significantly, this includes any act intended to remove territory from Israeli sovereignty or transfer territory to an alien sovereignty – Clause 97, “Undermining the sovereignty and integrity of the State.”

A detailed discussion of the applicability of implementation of these clauses has to await discussion elsewhere.

However, the very existence of such existing legislation is enough to establish the fact – especially given Israel’s beleaguered position – that a vigorous and hard-nosed debate on the question of disloyalty to the state is far from beyond the pale.

Reckless endangerment or depraved indifference?


The US legal system stipulates two related offenses, “reckless endangerment” and “depraved indifference.”

Without engaging in scholarly debate regarding the legalistic differences between the two, it would be true to say, in informed layman’s terms, that the defining characteristic common to both is that they each entails conduct, exhibiting a clear disregard for foreseeable consequences of the act involved, which creates a substantial risk of serious physical injury to others. Significantly, the focus in these offenses is on the risk created by such conduct, not the actual injuries resulting.

In his writings, Yakobson has repeatedly called for action strongly reminiscent of such behavior. Thus, in a previous iEngage op-ed, “How to deflate the settlements as an issue,” (December 12, 2013), he wrote: “The future peace treaty will draw a border between two independent states [and] should recognize the right of those Jews who will find themselves on the Palestinian side of the border to continue living there – as a minority under Palestinian sovereignty.”

Yet elsewhere, he shows that he is well aware of the lethal consequences of his prescription: “…It is true that precedents for Jews living under Arab sovereignty, in the decades since Israel’s independence, are not encouraging: No Jewish community has been able to survive anywhere in the Arab world.”

So might not one be well excused for believing that, whatever the sentiments in his heart, Yakobson’s proposal, in effect, comprises a call for conduct that displays clear disregard for foreseeable consequences of the act involved, creating a substantial risk of serious injury to others.

Reckless endangerment? Depraved indifference?

‘Clear and present danger’

Yakobson’s proposal to abandon Jews to alien sovereignty of course comprises a grotesque inversion of Zionist ideals, which always strove to achieve the opposite – bringing Jews to live under Jewish sovereignty. His latest article takes this manifestly misguided myopia even further.

The kind of policy prescription proposed by Yakobson, if adopted would certainly constitute a highly probable “clear and present danger” to the security of the state and its citizens – even within the pre-1967 lines.

For, what kind of reality would Yakobson’s proposal probably expose the country and its citizens to? He would create a mega-Gaza adjacent to Israel’s most heavily populated area, along a front of around 400 km.

(almost 10 times that of Gaza). But as opposed to the situation in the South, these territories completely dominate the entire Coastal Plain lying utterly exposed below it, and comprise the overwhelming bulk of Israel’s urban centers, economic activity and vital infrastructure installations.

All of these – including countless kindergartens – would be in range of weapons being used today from areas evacuated in the past and transferred to Palestinian administration.

There is, of course, no way Yakobson can ensure control of the outcome of his proposal for any length of time.

Even in the unlikely event – now even more unlikely following the rapprochement between Fatah and Hamas – that some Palestinian partner could be found, who would undertake, in good faith, to execute the agreement, there is little chance that his incumbency could be maintained.

Accordingly, the purported sincerity of any Palestinian cosignatory to his envisaged agreement is irrelevant. For there is little Israel can do to prevent his replacement, by bullet or ballot, by a more inimical successor, who would renege on his predecessor’s “perfidious capitulation to the Zionist invader/usurper.” The very agreement itself might be the rationale for his removal.

Even if right of return is restricted...


Yakobson’s willingness to accept the right of return into the vacated territories is hopelessly short-sighted – or worse, willfully unmindful of the consequences it would unavoidably precipitate.

Even if a fraction of the Palestinian diaspora, anomalously classified as “refugees,” were to return to the putative Palestinian state, the consequences are liable to be intolerable for Israel and entail an intolerable strain on the stability on the nascent micro-mini state that he envisages.

The effects of trans-frontier problems, such as sewage, pollution, excessive exploitation of aquifers, would be overwhelming. Unemployment, social instability and political turmoil would almost surely ensue. Not only will all this gravely destabilize the purportedly pro-peace Palestinian regime, but all that would separate Israel from these nightmare realities would be a thin strip of concrete and barbed wire fences, i.e., the much maligned “security barrier.”

The economic differential created by a GDP per capita approaching $40,000 on one side and little more than $1,000 on the other side would create irresistible pressure for massive infiltration into Israel – as along the US/Mexican border. Only here the migrants will have far greater incentives.

Undermining national sovereignty

Yakobson is proposing implementation of a policy that has failed consistently and catastrophically for almost a quarter century, incurring the murder and maiming of thousands upon thousands of his countrymen.

But, because Israel’s democratically elected government has not been sufficiently submissive to Palestinian demands in adopting such a perilous and imprudent policy, Yakobson suggests that it be promoted (read “imposed”) by the US administration – whose misunderstanding and incompetence regarding the political realities in the international system in general, and the Mideast in particular, have been starkly apparent for at least a decade.

If this recommendation to have a disastrously disproven policy imposed on his own government by an inept alien entity does not constitute a clear and present danger to Israeli national security, it’s difficult to think what does.

The trenchant question that remains is: How long will we, as a society, continue to tolerate, not only the articulation but the proactive propagation of harebrained, hazardous hallucinations, no matter how clearly detrimental to the national security of the state and the physical safety of its citizens, before they are accorded the public outrage and societal opprobrium they so richly deserve?

Martin Sherman (www.martinsherman.net) is the founder and executive director of the Israel Institute for Strategic Studies. www.strategicisrael.org

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