by Adam Keller
Back in 1948, the Israeli army took over what had been the mansion of a wealthy Arab family in Jaffa. In the early years of the state, it served as part of the military government ruling over the Jaffa Arabs. Fifty-five years later, it is still a military enclave in the heart of Jaffa's impoverished Arab quarter, used as the military court where soldiers are brought to be judged for various misdemeanours and breaches of military discipline. And nowadays, its narrow courtrooms have become habitually crowded with peace activists, journalists and international human rights delegations, come to witness or express solidarity for an increasing number of court-martialled refuseniks and CO's.
Until recently, the idea of such multitudinous court-martials would have seemed far-fetched. In the whole previous history of the state of Israel and its armed forces, there have been only a small handful of such cases — Amnon Zichroni in 1954, Giora Neuman in 1971, Gady Elgazi in 1981, perhaps one or two more.
The Elgazi court-martial, in particular, proved especially traumatic to the army command — with the accused and his lawyer making effective use of the court to denounce the occupation and gain media attention and considerable public sympathy; though found guilty, the army was soon forced to grant Elgazi a pardon.
Since then and for more than two decades, the military system altogether avoided court-martialling refusers. As late as the middle of last year, the army adamantly refused the request of Captain David Zonsheine — reserve paratrooper officer and refuser of service in the Occupied Territories — to have his case brought before a court-martial.
The army's long-standing policy had been to let refusers undergo "disciplinary proceedings", i.e. an instant trial held in camera by the commanding officer, with no lawyers or witnesses, and with punishments limited to one month. Ever since the 1982 war, the constant stream of reservist refuseniks — called up for their annual service and refusing to go to Lebanon or the Occupied Territories — were usually sent to one month in prison and then went home till the next year.
Youngsters refusing to join the army altogether, for reasons of conscience, had a route more difficult and complicated, but still practicable. The army's Conscience Committee, in theory charged with exempting CO's, was in practice a dead-end, turning down virtually everybody who applied.
What the young refuseniks had to do was endure patiently three or four consecutive one-month prison terms; when they had accumulated 90 to 100 days behind bars the army almost invariably brought them before an "incompatibility committee" — which almost invariably granted them a swift and unceremonious discharge.
To be sure, the incompatibility committee had not been specifically created for CO's or refuseniks. Mostly, it deals with unruly and "chronically undisciplined" soldiers who have no coherent ideological or political reasons and whom commanding officers judge to be "not worth further investment."
It suited well the army's purpose to dump the principled refuseniks into the same all- encompassing sack, and get rid of them without too much fuss or publicity. Still, the youngsters themselves could also live with this solution, without feeling they have compromised their principles. After all, what could be more "incompatible" with military service than a person's total opposition to it?
The arrangement was never formalized. Young refuseniks deduced its existence from their own or their predecessors' experience, and from chance remarks by officers or sergeants. At the end of 2002, the current crop of refuseniks were left to deduce its termination from the stark fact that they continued to be imprisoned again and again, far beyond the 100-day limit.
Soon it became clear that the military authorities were determined to embark on a head-on collision with the draft resisters — undeterred by the increased media attention to the issue, the protests by Israeli and international human rights organizations, or the weeks-long hunger strike of two imprisoned refuseniks, Noam Bahat and Hillel Goral.
The termination of a policy which had worked quite smoothly for years seems the result of the sharp increase in the number of young refuseniks — no more a few isolated individuals, but a big and growing organized group known as the Shministim (High school seniors), numbering in the hundreds (see TOI-105,
p. 14). Evidently, the army's high echelons came to regard them as a threat, a threat serious enough to justify spending much of the time and energy of two generals — Gil Regev of Manpower and Menchem Finkelstein of Legal Affairs — and of many of the two's underlings.
The refuseniks' growing defiance apparently intersected with wider issues disturbing these two generals and the army's high command in general. The army in the Territories is overstretched — for example lacking the manpower to impose curfew on all the West Bank cities at once. Commanders on the ground constantly complain that their troops are overworked and denied minimum sleeping hours.
An attempt to extend the annual active service terms of reservists, so as to relieve the overworked conscripts, encountered enormous resistance — with reservists organizing to defy the new measure, in virtually the manner of unionized workers threatening a strike. And to top it all, defence budget cuts demanded by the Finance Ministry in the name of economic austerity may require even further reduction of the forces facing the restive Palestinians.
Moreover, together with the issue of the refuseniks, the army command was faced with other conspicuous "threats to discipline in the ranks." In February, it was announced that a whole battalion of the IDF's Golani Brigade had been disbanded due to "severe discipline problems."
According to Stuart Cohen's article in the Jerusalem Post
(7 March), "the troops concerned, who chose to nickname themselves 'Messengers of Satan', apparently indulged in a complete breakdown of discipline. Failure to carry out guard duty was the least of their crimes. Over a protracted period they also subjected junior members of the unit to physical and mental torture; they insulted and abused their officers; and in order to duck operational assignments they deliberately sabotaged military vehicles. The military police personnel who came to investigate their crimes were on one occasion bombarded with eggs and refuse, while other officers were locked out of the base."
These 'Messengers of Satan' had little in common with the refuseniks — except that they landed on the same desk of "severe disciplinary problems" — and in both cases, the decision was to take drastic measures, rarely used before: disbandment in the one case, court-martials in the other.
General Dr. Menachem Finkelstein, head of the army's Legal Department, seems to take very seriously his duty of confronting the phenomenon of refusal. His zeal seems to have something to do with his nationalistic interpretation of Orthodox Judaism, and his links with like-minded jurists and philosophy lecturers at the National Religious Bar Ilan University.
Apparently, it was Finkelstein who took the definite decision to go ahead with court-martials, for the first time in more than two decades. For their part, the newly-established Forum of Refusers' Parents decided to hold every Friday afternoon a protest vigil across from Finkelstein's private residence in the city of Petach Tikva, standing quietly while holding the photos of their imprisoned sons and the slogan 'Conscience behind bars.'
It got quite a bit of attention from Israeli and foreign media, was visited by a delegation of the German Green Party, and also aroused a rather pathetic counter-demonstration by local Likudniks (a few youngsters shrieking "cowards, shirkers, traitors" was all that Israel's ruling party could muster for the occasion).
As he once let slip in public, Finkelstein himself is quite aware of the vigils and disturbed by them. Not that it stopped him from selecting the primary targets for court-martial — two refuseniks perceived as "ringleaders", of whom "an example" was to be made by court-martials carrying the maximum penalty of three years' imprisonment.
First to face the charges was Yoni Ben-Artzi, longest-serving of the imprisoned refuseniks, who had several times appealed to the Supreme Court and had been very much in the media focus — first because of being the nephew of former PM Binyamin Netanyahu, later because he developed into a quite a bit of a celebrity in his own right.
Then Haggai Matar, one of the main initiators of the Shministim Letter, which grew from a few dozens to some 300 signatories — as much of a leader as such a diverse and anarchic group, has any.
The two cases were not identical. Ben-Artzi is a pacifist, opposed to all wars and all violence and rejecting all military service in any army, wherever and whenever — though feeling an even greater repugnance towards the Israeli army and its present role then to armies in general. Matar, on the other hand, is opposed specifically to serving in an army of occupation, doing what Israel's armed forces are at present doing to the Palestinians. In other times and places he might have been willing to join an army fighting a war which he considered justified.
The distinction makes no difference to the Shministim, who are vowed to solidarity with all imprisoned members regardless of their reasons for refusal. The same is true for the Forum of Refusers' Parents and for other organizations of the "refuser community" such as Yesh Gvul and New Profile. The army, however, makes much of the distinction.
In a position first enunciated by Chief-of-Staff Ya'alon during a lecture to high schoolers in Haifa and since then repeated ad nauseam by the military prosecutor in the Jaffa Military Court, the army is willing to recognize "true pacifists" but would not tolerate "political refusers."
The rub, of course, is that the army seems congenially unable to recognize a true pacifist even when face to face with him. Yoni Ben-Artzi — a young man who became convinced of the futility and crime of war ever since visiting the huge military cemeteries of Verdun, where hundreds of thousands of French and German soldiers killed each other in 1916 — should have had no problem getting an exemption in any country recognizing Conscientious Objection at all.
From the opening session so far, the prosecution in his case is reduced to the rather formalistic argument that the Conscience Committee is the body authorized to define who is and who isn't a pacifist, and that Ben Artzi should have bowed to the committee's decision that he is no pacifist rather than "taking the law into his own hands" by refusing to be enlisted.
Perhaps recognizing that this is not an entirely promising line, the army apparently tried to avoid entanglements with other pacifist refuseniks. Uri Ya'akobi, who had shared many prison terms with Ben-Artzi, was informed that he would be court-martialled too — only to have the army perform an incredible volte-face on the following day, with Ya'akobi brought suddenly to the long-denied incompatibility committee, and released on the spot from both prison and army.
Another pacifist refusenik — Dror Boymel, whose case had been taken up by ACRI (Civil Rights Association) — was referred again to the Conscience Committee, which in the past had rejected his request for exemption. This time he faced the Committee together with Adv. Avner Pinchuk of ACRI, and made a concrete detailed proposal to undergo alternative civil service — to which the committee responded by dragging its heels and after a month informing Boymel that his case will be "deferred for eight months" and that he could stay home meanwhile. He plans to start his community service anyway.
The non-pacifist refuseniks got no such respite. Under the army's declared new policy, they would undergo five month-long prison terms through "disciplinary proceedings" and if not recanting would be court-martialled .
The army was, however, caught off-stride when refusenik Matan Kaminer — facing his third disciplinary proceedings — chose to cut the process short and exercise his right to have a court-martial right away. (The right exists in military law, whenever a soldier asks for it — but it is very long since it had been exercised in practice).
Kaminer was added as a second accused to the Haggai Matar proceedings. And others took up the theme, week by week — Shimri Tzameret, Adam Ma'or and Noam Bahat. Altogether, a compact group of five "non-pacifist refuseniks" facing the judges together. The prosecution had clearly gotten more than they had bargained for. On the other hand, Ben-Artzi got no "running mates" in his own trial, the army having avoided charging other pacifists.
The first order of the day, when the six were brought one by one to Jaffa to be remanded in custody, was to secure good detention conditions. In what started in stiff debate between the defence and prosecution but soon hardened into routine, the court ruled that pending the end of their trials, the accused would be held in "open detention" — i.e., held in an ordinary army camp where conditions are rather better than in the military prison, but still kept inside and forbidden to go out except for special occasions. And they might have to stay there for a considerable time, until the proceedings finally resolve themselves.
In February and early March, the unfolding refusenik court-martials provided an extra reason for anxiety about the coming Iraq War: the possibility that the trials would reach their climax while the Israeli and international press — and even the international antiwar movement — had little or no attention for anything but Iraq. Without a media spotlight on the courtroom, the accused might get a short shrift indeed.
In the event, there was no need to worry: the time of the Iraq War was spent as the defence continued skirmishing with the prosecution on preliminary issues, before the trial proper could begin. With considerable erudition and skill, technical points were raised actually involving many issues of substance.
The most ambitious of these was an appeal to the Supreme Court to have the whole proceeding moved from the military court to a civil one. Adv. Michel Safard — associate of the well-known Avigdor Feldman — brought a wealth of precedents and legal arguments to bolster his case: In all Western democracies which instituted conscription and prosecuted citizens who refused to join up, such prosecution took place in civil courts according to civil laws, not in military tribunals — e.g., the US during the Vietnam War.
"This is not the case of a soldier, who is part of a military unit, who has a commanding officer and who refuses to obey the orders of that commander. It is the case of a civilian, a civilian with strong and firm pacifist convictions, who refuses to become part of the army in the first place. If it is an offence at all, it is an offence against the civil law that tells civilians they have to become soldiers.
Moreover, the sincerity of Ben Artzi's pacifist convictions is a central issue here. Without casting any doubt on the honesty and capabilities of the military judges, a military court — which is composed of military officers and whose primary raison d'être is to maintain discipline within the army — is not a competent forum to rule on pacifism. It would cast no aspersion on rabbis to assert that a Rabbinical Court is not the most competent forum to rule on the sincerity of a Muslim's beliefs and his conformity with Muslim religious doctrine."
Two international organizations — the London-based War Resisters International and FIDH (International Federation of Human Rights) from Paris — sent observers to be present at the proceedings in the great hall of the Supreme Court in Jerusalem. So, they observed how — after a session of juridical fireworks and a week-long recess — the Supreme Court rejected the appeal, apparently not wishing to take responsibility for what might be considered a far-reaching overturning of established hierarchies and spheres of influence in the judicial world.
However, the Supreme Court judges held out one consolation: they fully expect that eventually the cases of Ben-Artzi and of the other five will come under the purview of civil judges — namely themselves, since all verdicts of military courts can be appealed. By the time the Supreme Court rendered its verdict, the Iraq war was already drawing to its close.
On the morning of April 15, the trial of "The Five" was about to formally begin, at last. The narrow courtroom was far too small to contain all the family members, sympathizers, journalists and TV crews. Harassed military policemen tried to enforce the rules: "No standing in the aisles in this courtroom! Those without a seat — get out, please!" The refusenik supporters refused to budge. "This is a political trial which arouses great public interest. It is your duty to provide access to the public, to everybody who wants to be present!" Dr. Gady Elgazi called out, who had himself been in the dock back in 1981 — nowadays history lecturer at Tel-Aviv University and Ta'ayush founding member. At last, the court administration relented to point of moving to the biggest hall at their disposal (still insufficient for the entire crowd).
The proceedings started with Defence and Prosecution sparring, often raising technical points and nuances comprehensible only to learned jurists. But when the prosecutor, Captain Yaron Kostelitz, reiterated once again the familiar "pacifists yes — political refusers no" doctrine, Defence Lawyer Dov Henin suddenly pounced:
"My learned colleague has explained at length the army's position. He explained that anyone whose objection is to serving in an army of occupation, rather than an army in general, is automatically ineligible for exemption from service. Yet here I have a letter which I would like to place into the record of this court — a letter sent a few months ago by a young person to the army, stating:
'For the past thirty-five years, Israel is cruelly oppressing the Palestinian people. Serving in the army which carries out this oppression is completely against my conscience, and I ask to be exempted from this duty.'"And the army granted that wish. I also have here the discharge document issued to the same person — an official IDF document stamped 'discharge for reasons of conscience'."
It was a bombshell. The perplexed prosecutor clearly had no idea that such a document existed, undermining his entire case. He was at a loss to account for it. The mystery was cleared up a few minutes later. The applicant who got the desired discharge had been the 18-year old Hadas Goldman — a girl.
Thus was exposed in the courtroom a reality of which the "refuser community" is long aware: the army has completely different standards for men and for women. Women's right to conscientious objection is enshrined in law; that of men is not. The Conscience Committee for men gives virtually no exemption to anybody; that for women exempts virtually everybody. "Different conscience committees with different criteria — that would mean discrimination. I had no idea of all this" said the visibly shaken presiding judge. "It must be thoroughly looked into. This court is recessed."
The next session is due only at the end of May. It is going to be an interesting trial.
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