Against all angels

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Israeli Author Yoram Kaniuk passed away exactly one year ago, on June 8, 2013. His somewhat rambling and quasi-biographical essay Angels (“Mal’achim”) was published posthumously as a small book. The author is depicted on the book’s jacket in a long black coat. Standing on top of a lamppost like a crow, he overlooks the urban skyline of Tel-Aviv. White wings attached to his back suggest that he is the angel in the book’s title. The positioning seems to befit an author who has died, but whose spirit remained in his city.

The book was written over a ten year period, long before Kaniuk’s death. The dates appear on the last page, under the word End: May 1990 – January 2000. Yet it does read like an old man’s attempts to tie together threads of misfitting memories, to make sense of what has transpired in a life of 83.

Kaniuk lived for several years in Manhattan, surviving among other things by selling paintings. Among the many peculiar anecdotes he retells from this part of his life is an incident in a New York high school – “I forgot which, perhaps Roosevelt High” – where kids were bragging about their parents’ achievements.

“One of them said, my dad planned Washington Bridge, and another said, my dad built the Empire State building, and then a poor Jewish kid who didn’t have a dad like that asked, did you ever hear of the Dead Sea? They said: Yes! And he said: my dad killed it!”

The quip has a haunting quality Louis C. K. described in an interview that fell into my hands while I was reading Angels: “The punch line of a great joke may punctuate it and make people laugh, ‘but it doesn’t solve the joke, it doesn’t stop it, so the joke keeps going and going and going…’”

*

This joke about killing the Dead Sea “kept going” in my mind for a day or two, after which I did reach the rather plain conclusion that the Jewish kid’s dad is god. This secret Royal lineage of the pauper fits nicely not only with the old myth of the “chosen people.” More importantly, it comports with the implicit assumption that dad is the creator – not of human artifice – but of nature itself. This, however, is a distinctly nasty and violent god. His most remarkable acts of creation are not ones of giving life to nature, but ones of killing it into existence. As philosopher Adi Ophir discussed in a striking recent book, the Biblical god is indeed a god that governs through destruction.

For this reason Kaniuk describes angels in the opening lines as the most appalling and degenerate of all creatures. The Biblical god often commits acts of genocide, the most iconic example of which is the indiscriminate killing in Sodom and Gomorrah. Kaniuk’s angel is invariably complicit. God’s command may be incomparably atrocious. But the angel will always deliver the message; always obey. Unlike humans, the angel is capable of no judgment beyond divine command. For the angel, explains Kaniuk using legal language scholars have often returned to, no order is “manifestly illegal.” No order can require the angel to disobey.

This emphasis on the value of disobedience to all forms authority seems to stand in some tension with things Kaniuk has written elsewhere. In the novella Nevelot, for example, the author suggests that the legal imperative to disobey “manifestly illegal” orders reflects a kind of contemporary “cosmopolitan nihilism” (as I have argued here). The “manifestly illegal” phrase appears in Nevelot in the context of a discussion among veterans of paramilitary groups that participated in Israel’s War of Independence (1947-1948). At the time, these people served as assassins in service of the emerging political movements and institutions which later became the Israeli state. The violence they wielded against the Arab-Palestinian “enemy” was directed indiscriminately at both “civilians” and “combatants.” At the same time, however, it was completely necessary, and therefore, they believe, justified. Here, it is not god’s command, but political necessity, which defines justice – however violent it is.

But Nevelot takes place in the 1990s, and these veterans are now discussing their youthful adventures from some distance. If a legal requirement to disobey “manifestly illegal” orders would exist at the founding, they say to each other, Israel would never have been established. The constitution of the new polity rests on their own constitutive violence; those cosmopolitan nihilists who raise the flag of “human rights” paradoxically label this violence “war crimes,” while enjoying the security it granted them. Kaniuk too served in the Palmach – one of the paramilitary groups that fought at the time of Israel’s founding. As he told me in a meeting in his Tel Aviv apartment about a year before he died, the protagonists of Nevelot largely speak his own mind.

Can the two references to the doctrine of a “manifestly illegal” order be squared with one another? Or did the author simply change his mind? In Angels, Kaniuk demands disobedience to a cruel father-god, whose winged messengers invariably obey. In Nevelot, Kaniuk derides a legal demand to disobey the law. This demand is deemed too precious, naïve, or straightforwardly hypocritical. Those Israelis who voice it surreptitiously rely on the violence that obeying the command of political necessity entails. The two Kaniuks seem vastly disparate.

*

Perhaps the key to the difference between these two references to the “manifestly illegal” doctrine is precisely the different sources of law they rest upon.

The doctrine famously comes from a trial in which Israeli soldiers were prosecuted for obeying an order to shoot and kill unarmed civilians. These were Israeli citizens who came back home from work to their residence in Kafr Qasim. Their only fault was that they were Arab Palestinians. A standard philosophical reading of the Kaf-Qasim judgment is one about the requirement to obey a higher law than the (illegal) command to kill. This higher law doesn’t have to be written in the books. It is “natural law,” a category that historically stems from religious sources. The conundrum these “illegal” orders present has remained arecurring theme in attempts to assign criminal responsibility to mass political violence.

In his seemingly self-contradictory discussion of the doctrine, Kaniuk tells us that there is no “natural law” to rely on. Inasmuch as she relies on humanity’s divine nature given by god, the judge convicting war criminals is no better than the defendants before her. “Human rights” are supposed to allow her to convict political crime without simply making her own decision on what it means to be human, but are deemed to be a failure.

As we learned from that kid from Roosevelt High, god is bad. Kaniuk’s disobedience therefore cannot be exercised in the name of higher law. It doesn’t matter whether that law appears in statute or constitution (and can therefore still be “manifestly illegal), or whether it is the word of a god who created man in his own image. This author’s imperative of disobedience – one that angels will forever violate – is an imperative of personal judgment, exercised despite faith, not in the name of it.

The jacket chosen for Kaniuk’s memoir – with the author as one of the angels – is rather inappropriate.

 

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About Itamar Mann

Itamar Mann is the National Security Law Fellow at Georgetown Law Center. He holds an LLB from Tel Aviv University and LLM and JSD degrees from Yale Law School. His work focuses on international law and political theory. His book, Humanity at Sea: Unauthorized Migration and the Foundations of International Law, is forthcoming with Cambridge University Press in 2016.


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