Breathtaking days in the military court

[Gush Shalom (Israeli Peace Bloc)]

BREATHTAKING DAYS IN THE MILITARY COURT
                                 
[The following is the report of two days in the military courtroom (Nov. 
11 and 12): the defence summation of "The Five" and the verdict of 
Yoni Ben Artzi.]

For an hour we sat in the overcrowded and badly ventilated courtroom 
of the Jaffa Military Court, listening to presiding judge, Colonel Avi Levi, 
reading out a long verdict - hard to understand as he was rushing 
through the document. The text gave different and contradicting 
pointers as to the outcome.

"We have become convinced of the sincerity of Yoni Ben Artzi's 
pacifist convictions, and we are far from feeling that the Conscience 
Committee acted at its best when it rejected his request for exemption. 
The assertion that he wanted to avoid military service for personal 
convenience does not stand up to the proven record of his spending 
than a year behind bars, and to his rejecting offers of easy and 
comfortable military service made to him by various high officers. Nor 
do we accept the prosecutor's contention that his participation in the 
Yesh Gvul rally proves him to be a political refuser rather than a 
pacifist. A pacifist could have political opinions, too. Objecting to 
Israel's rule behind the Green Line is exactly the opinion which we 
would expect a pacifist to hold and we would have been surprised to 
find him holding a different one.
In his testimony in this court, Colonel Simchi - head of the Conscience 
Committee - admitted to many shortcomings of the committee which 
he led. He is to be commended for his honesty. Nevertheless, this 
committee is the constituted authority entrusted with determining 
whether or not a person liable for military service would or wouldn't get 
an exemption. This court is not empowered to act as a court of appeal 
upon the Conscience Committee. 
Moreover, Ben Artzi appealed against the committee's findings to the 
Supreme Court, and was rejected. This court is certainly not a court of 
appeal upon the Supreme Court.
We cannot accept the learned councel's assertion that the military 
authorities' conduct towards the accused was so grossly unfair as to 
render the order upon him to enlist illegal. It was a legal order, and we 
cannot but find him guilty of disobeying that legal order. Nevertheless, 
we strongly call upon the military authorities and the minister of 
defence to review the facts of the case and to reconvene the 
Conscience Committee to discuss once again the issue of whether or 
not Yoni Ben Artzi should get an exemption from military service."

Unlike the normal practice, the judges did not just disperse and end 
the session. Rather, as soon as he was finished, Colonel Levi 
summoned prosecutor Yaron Kostelitz and defending lawyer Michael 
Sfard and they remained closeted at his bureau for more than half an 
hour. Meanwhile, in the courtroom the TV cameras focussed upon Ben 
Artzi and his father Matanya, and all around intensive discussion and 
debate. 

Some who followed this trial from the start were furious: "Damn this 
judge! After all that was revealed, how can he find him guilty!" But Yoni 
himself did not seem so disappointed. "I am as satisfied as I could 
have been in a military court. These three judges have gone out of their 
way to state that they believe me, and accept the sincerity of my 
pacifist convictions, and they rejected one by one all the counter-
claims of the prosecution. They did have to find me guilty on 
disobeying the order. After all, I did disobey that order." 

When finally emerging from the judge's bureau, and immediately 
pounced upon by the waiting journalists, Adv. Sfard was quite upbeat: 
"There is no question of discussing any punishment at this moment. 
The ball is now in the court of the army's Legal Department. They have 
to answer the very strong suggestion made by the court to reconvene 
the Conscience Committee. If I was in their place i would think twice 
before rejecting it. Despite the conviction they didn't come out of this 
trial  very well. For the first time in the history of Israel, a military court -
 three judges acting unanimously - recognized a person in front of the 
m to be a pacifist. The court, a flesh of the army's flesh, is demanding 
from the military authorities to stop mistreating this fin young man, who 
has suffered enough, to grant him at last the exemption he should have 
gotten two years ago. Let's see what they will do."
					***

What will the implications of this verdict be for the other five draft 
resisters, in whose own court martial we heard yesterday the defence 
summation?  

Before the court started, some 150 people had turned up, quite 
impressive on a working day. Fortunately the rain had let up  shortly 
before the demo began. Signs were unfurled: "Conscience in prison  - 
stupidity  in power",  "Alternative Service  to  COs!", "Occupation  is  in 
the  dock  here!" and a group of youngsters started singing  "Go  to 
Hebron / Fight for Sharon / And come back in a coffin". Chen Gutman 
took the megaphone and read a poem written by Yehonathan Gefen 
some twenty years ago, before she herself was born: "We celebrate 
independence / On the backs of another  people / We feel completely 
free / To  kick them around and cut down their trees..." Will more 
generations have to grow up into the reality of ongoing occupation?

At 9.00 we filed in. Knesset Members Bronfman, Barake and Makhoul 
showed up, as did former KM Gozanski. Dr. Anat Matar, philosophy 
lecturer and the mother of Haggai,  spoke from the aisle: "There are far 
too many of us today to fit into this courtroom,  even though we 
dragged extra benches in. Please go out at 10.30  and give your place 
to one of those waiting outside." From the dock where  The Five sat,  
Matan Kaminer turned his head and smiled:  "Thank you  all  for 
coming!" Then the judges entered.

Adv. Dov Chenin, lawyer and veteran political and environmental 
campaigner, started his well-constructed exposition. "Last week in this 
courtroom, my colleague of the prosecution went on at length about 
the danger of anarchy and chaos which would ensue from tolerating 
Conscientious Objection. I defy him to produce even a single historical 
example of a state or society which was disrupted by the recognition of 
the Freedom of Conscience. There is none. But many are the 
examples of horrors which came upon societies and states by an 
excess of Non-conscientious Obedience.

The experiments of Milgrom and other social psychologists have 
shown that a large part of humanity is capable of tolerating and taking 
part in evil acts - not necessarily out of cruelty or sadism, but simply 
out of conformism and acceptance of authority. Those who defy 
authority and stick to their own deeply-held perception of right and 
wrong are a vital lubricant to society.

We need but look at the kind of person which our ancestors, who wrote 
the Bible, held up as an ideal. Look at te story of Moses. He only 
survived babyhood because two Hebrew women and an Egyptian 
princess conspired to break the Egyptian law according to which little 
Moses should have been drowned in the river together with the other 
babies. Growing up, Moses killed an Egyptian overseer who was 
beating a Hebrew slave, and had to flee into the desert as an outlaw. 
Then, he came back as an agitator fomenting dissent an rebellion 
among the slaves. Later still, this contentious person was debating 
with God Himself and often got the best of the argument. 

A bit later in history, in the first half of the Nineteenth Century, there 
was a person who took Moses as her example. A woman named 
Harriet Tubman, who regularly went into the south to take slaves away 
from the plantations and smuggle them to freedom. There was a price 
on her head, but since her nickname was "Moses" the pursuers did not 
look for a woman. By the terms of her time, she was a criminal. She 
deliberately broke the laws duly passed by Congress and enforced by 
the Supreme Court of the United States. She was a thief, who stole 
from the slave-owners a lot of valuable property. Yet today who of these 
people would be considered the criminal?

Yet, you may well ask: what has all this to do with this court? This is a 
court of law, it can only render judgement according to the law of the 
land, not according abstract moral or philosophical principles. But that 
is exactly my contention: the Freedom of Conscience, this vital spark 
which is so crucial to human society, is indeed recognized as part and 
parcel of Israeli law. My colleague of the prosecution, who spoke at 
length on obscure points of military procedural law, made hardly any 
mention of the Constitutional Revolution which occurred in the Israeli 
judicial system in 1992, when the Knesset adopted the Basic Law on 
Human Liberty and Dignity.

As Judge Aharon Barak, President of the Supreme Court, has shown, 
from that moment on the basic human rights have become a 
fundamental norm of Israeli law, a norm to which all state institutions 
and agencies must conform. All state institutions and agencies, that 
also includes the army.And, as Judge Barak and his colleagues 
pointed out on numerous occasions, among these rights, and not the 
least of them, is the Freedom of Conscience.

This does not mean, of course, that every person can take any action 
which comes to mind, and claim that it deserves to be defended by  the
Freedom of Conscience. It is up to the person to prove that said action 
does indeed derive from conscience - that is, from deep and 
fundamental convictions about right and wrong, convictions so deep 
and fundamental that by breaking them you would break the person. 
But once a person proves this point - and it is my contention that the 
five young men standing trial here did amply prove that their refusal to 
enlist in an army of occupation does originate from such deeply held 
convictions - then that person's act is protected as part of the Freedom 
of Conscience. 

In our legal system, no right is absolute - neither the Freedom of 
Speech nor the Freedom of Movement, and also not the Freedom of 
Conscience. When a person is suspected of a crime, the police may 
arrest him and put him in a cell, which evidently violates his liberty. But 
the police may not do so arbitrarily. There is a law which defines 
exactly when they may arrest a person, how long they can hold him 
and under what conditions. The same with any other right. It may be 
infringed in order to preserve another right or a value upheld by society -
but as the Basic Law states and the Supreme Court reiterated, such 
an infringement of a basic right can only be justified when it is 
according to a specific law and when there is a near certainty of its 
being needed for the sake of preserving another value.

In the entire presentation made last week by my colleague of the 
prosecution, not the slightest mention was made of any of this. No 
reference to a law by which the military authorities may infringe the 
Freedom of Conscience, no proof that such infringement was needed 
with near certainty. It is not the prosecutor's fault that such a huge 
gaping hole was left in the argument which he presented. He did his 
work conscientiously, faithfully representing the position and practice 
of the military authorities. It is simply that those authorities have not 
yet realized that a constitutional revolution has occurred, and that it 
applies to them, too. Still, this hole does gape, and through it the five 
accused must walk out free." Adv. Chenin sat down.

"The court thanks the prosecution and defence for the well-thought out 
presentations which they made to this court. This is a very 
complicated case, which the court will have to deliberate closely. Don't 
expect a verdict in less than several weeks."
					***

Report made by Adam Keller for the Refuser Parents Forum

Contact persons:
Smadar Nehab <snehab at netvision.net.il>
"Anat Matar" <matar at post.tau.ac.il>
"Reuven Kaminer" <mssourk at mscc.huji.ac.il>

Donations:
Checks earmarked for "legal aid" to New Profile, POB 6187 Ramat 
HaSharon 47271, Israel

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