'Present refusers not political but moral', says Adv. Avigdor Feldman

[The Other Israel]

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   The army, the refusers and the legal community
   'Present refusers not political but moral', says Feldman
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Tuesday morning, March 11 at the Jaffa Military Court - first 
session of the Yoni Ben-Artzi court martial. Two TV camers 
are there as the small room gets filled up by parents and 
supporters of refusniks. Among sits Uri Ya'akobi, who after 
half a year behind bars was suddenly released from prison and 
discharged from military service. Also Constantin, a young 
Russian immigrant who is due to be inducted next week and 
who intends to refuse.
In dress uniform the three judges file in, and the two legal 
teams engage on their first skirmish. For the defence appears 
Adv. Michael Safard, human rights lawyer and an outspoken 
supporter of the refusniks movement. Facing him is Captain 
Yaron Kostelitz, the military prosecutor, with his  manifest 
zeal and fervour even when disussing obstruse points of legal 
nuance. 
The presiding judge, Colonel Elisha Kaspi, makes a 
conspicious effort to appear fair and open-minded, subjecting 
both sides to queries and slightly ironic remarks. 
Today, the charge of "disobeying an order" was supposed to 
be formally read out to Ben Artzi, but Adv. Sfard makes an 
objection: Ben Artzi had already been charged with the same 
charge  at disciplinary proceedings. The Israeli Miltary Code 
does permit this kind of double jeopardy (eight-fold jeopardy in 
Ben Artzi's case, as the lawyer points out). However, in order 
to charge a soldier in a full court-martial for an offence he 
already faced in disciplinary proceedings, a higher authourity 
must review the case and render an opinion in writing. The 
prosecution did not go through that procedure, and therefore 
the entire charge sheet was invalid.
The prosecutor was quick to riposte: there was no double 
jeopardy. Each and every occasion on which Ben Artzi had 
been ordered to accept enlistment and refused had been a 
seperate, fresh offence. In answer, Sfard is ready with 
precedents: in 1997 the Supreme Court recognized (in a 
criminal case with no political overtones) that many acts, 
carried out over an extended period and in different locations, 
all constituted a single ongoing offence. And in the Chech 
Republic, the Constitutional Court recognized that two 
seperate refusals of a person to enlist constituted a single 
offence, not two. 
"The Court would consider the issue and inform the sides of 
its verdict" announces Col. Kaspi, and the judges file out. The 
Ben Artzi defence won some time which will be used to further 
a parralel track: an appeal to the Supreme Court to have the 
Ben Artzi case moved to a civilian court: "This is not the case 
of a soldier, who is part of a miltary 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 enlist in the army. 
If it is an offence at all, it is an offence against the civil law 
which tells civilians that they have to become soldiers. 
Moreover,  the sincerity of Ben Artzi's pacifist convictions is a 
central issue here. To ask a miltary court to rule on that is like 
asking a Rabbinical court to rule on 
the sincerity of a Muslim's belief and his conformity with 
Muslim religious doctrine."
      
Wednesday evening, March 12 - the Throne of Justice Hall at 
the Tel-Aviv University Faculty of Law. The Association of 
Public Law and the Minerva Human Rights Center co-host a 
panel discussion on "Conscientious Objection: Legal Right or 
Civil Disobedience". The large hall quickly fils up, as does the 
anteroom where extra chairs had been placed. 
General Menachem Finkelstein, head of the army's legal 
department and personally masterminding the anti-refuser 
campaign, has arrived at the lion's den of the refusnik 
movement surrounded by a phalanx of officers and military 
lawyers. Facing him is Avigdor Feldman, prominent both as 
practicing lawyer and frequent appelant to the Supreme Court 
and as a formidable juridical theorist, the originator of 
innovative concepts and categories. "The sparks will start 
flying soon. I would not have missed this for the world" says 
one of the crowded spectators. 
The discussion starts with the moderator, Adv. Tzvi Inbar, and 
Philosophy Professor David Hed of Jerusalem both setting out 
neat categories and distinctions such as Consientious 
Objection as essentially the private act of an individual as 
opposed to Civil Disobedience which is a public defiant act by 
a group. Then Finkelstein's turn - far more directly concrete. 
"These people who demonstate every Friday outside my home 
and who place these big ads in the paper accuse us of the 
military prosecution, accuse me personally, of being harsh 
and vindictive. The contray is true: we have been lenient with 
these so-called refusniks, we until now hesitated to use 
against them the full power of the law, these repeated offences 
left us no choice [heavy shouting in the hall]. The army 
respects true pacifists, when they show up. It is willing to 
accomodate their conscience [shouting]. Yes, I knew you 
would ask about Ben Artzi. The committee competent to deal 
with such things examined his case and found he is not a 
pacifist [loud boohs]. Still, we were ready to be lenient with 
him, to let him serve without weapons. Yes, that is true, he 
will have to be legally a soldier, with a serial number. That is 
the law, I can't change the law. And the other refusniks, the 
ones who give political reasons, who say they are "against the 
occupation" - that is totally unacceptable, an ideologically-
motivated law-breaking. They are basically positive characters, 
idealists who can inmfluence others.  Precisely because of 
that we must punish them severely".
Feldman gets up to respond, tearing Finkelstein's arguments 
to shreds. "This Conscience Committee which rejected Ben 
Artzi again and again, who are they? A colonel, a major,, 
lieutenant - military offciers all, to rule on who is a pacifist. Oh 
yes, they did add one civilian. A respectable civilian, a lecturer 
in philosophy. He also happens to be the one who provided 
the military prosecution with an affidavit to be presented in 
response to Ben Artzi's Supreme Court appeal. Yes, a truly 
objective, unbiased philosopher.(...)
But Ben Artzi and pacifism are not at the crux. They are just 
the military prosecution's alibi. I want to turn to the selective 
refusers, the ideological refusers which my colleague so 
roundly condemened.  What do they refuse to do,  to take part 
in? Twenty years ago, there was a movement of refusniks who 
refused to go to Lebanon. Some of them went to prison, I 
reperesented some of  them. They opposed a war which they 
felt was unjust. You could call them political refusers, and you 
would not be very wide off the mark. The refusers 
of today are different, they oppose something different which 
was not there before, at least not in the form it is now. Let me 
say the word, a harsh and unpleasant word: War Crimes 
[shouting, applause in the hall]. 
There is such a thing as International Law. There are rules and 
obligations which it imposes on an occupying power. Certain 
minimal obligations towards letting an occupied population 
enjoy a certain minimal standard of  living, to maintain basic 
services, health, education... There was a time when Israeli 
rule was more or less within this framework. Always with 
violations, some of 
them serious, but the framework was discernable. Now it is 
totally broken, smashed, trampled upon. Not the most basic 
rights for the popuation. The only consideration, overriding  
everything else, is maintenance of the settlements, which are 
inherently a violation of International Law. This is what the 
selective refusers, the ideological law-breakers, are refusing to 
take part in. 
And here is what they uphold: the norms of International Law, 
which are becoming more and more entrenched, which are 
this week codified in the War Crimes Tribunal which started 
work at the Hague. This the refusers uphold: not some strange 
bizarre ideology, but the norms of the International 
Community".  

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Index of TOI-Billboard March 14, 2003

...and the outbreak of war will make it worse [headline] 

must read reports, ads, appeals, letters
[] "Save the children, Shukri!' / Gideon Levy, Ha'aretz weekend 
[] Evidence Hereby Submitted 
   B. Michael, Yediot Ahronot, March 7, 2003
[] Gush Shalom Warning to Soldiers ad in the papers
   (trying to shout before it happens)
[] "I will not participate in my upcoming reserve duty"
[] The army, the refusers and the legal community
   'Present refusers not political but moral', says Feldman
[] Palestinians Under Siege Appeal to World Public Opinion

you are invited to:
[] Please Help Save Zabuba Village, international campaign 
[] House demolitions - call for action
[] Peace Now to counter settler Purim festival
[] Experiences in the West Bank, Paul Larudee, invitation
[] March 21, Silent Walk for Peace

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