[Gush Shalom] Surprising session in the court martial of "The 5"

[Gush Shalom (Israeli Peace Bloc)]

GUSH SHALOM  pob 3322, Tel-Aviv 61033 www.gush-shalom.org

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The Prosecutor & The Judge

[The following is the report on the latest session  in the court martial of 
"The Five" which Adam Keller wrote on behalf of  the Refuser Parents 
Forum.  Gush Shalom supports the struggle of these courageous 
youngsters against the occupation.]

November 4, morning. 
It's nearing the end - this routine of coming again and again to the Jaffa 
Military Court, to which we have grown accustomed in the past half 
year. The testimonies and cross-examinations are past. Today the 
prosecutor - Captain Yaron Kostelitz, will make his final summation, 
trying his utmost to make the most heavy case and use the most 
specious arguments against the five young guys in the dock. To offer 
solidarity to Haggai and Matan and Adam and Shimri and Noam, we 
have come again: parents,  friends and supporters, plus the faithful 
Ecumenical Accompaniers of the World Council of Churches, and two 
young Italians doing internship at the Palestinian Medical Relief 
Committees at Ramallah, a civilian service in lieu of service in the 
Italian Army - the kind of constructive alternative which the state of 
Israel denies to its own conscientious youths. 

We have become quite familiar with Kostelitz over the long-drawn out 
course of this court martial as well as Yoni Ben Artzi's. He is quite 
predictable, and none of us is surprised at the basic philosophy expressed  
in nearly each sentence he utters: "Military service is the highest duty and 
the highest privilege of a citizen, the chance to lay down his life"; 
"Breaking the law is by definition an immoral act. Law is morality, morality 
as defined and encoded by the entire society. Breaking the law is immoral , 
only obedience to law can hold society together". When Colonel Avi 
Levy, the Presiding Judge, remarks that "Things are are not that clear-cut, 
not always black and white", Kostelitz mutters: "Oh, it is black, very black 
indeed ..." 

What caught us all by surprise - and apparently, also Kostelitz himself - 
were the frequent interruptions of his narrative by Colonel Levy, which 
often seemed to deflate Kostelitz's best arguments just as he got into his 
swing. 
"There is a difference between Conscientious Objection and Civil 
Disobedience. Conscientious Objection is a purely personal act, carried 
out in silence, without publicity, aimed merely at getting exemption for one 
particular person from acts which he finds intolerable, incompatible with 
his personal conscience. He does not seek to involve others, does not ask 
anybody to follow or emulate him. Civil Disobedience is the complete 
opposite - a pernicious, seditious act of a group which seeks maximum 
publicity, maximum complicity and participation in its effort to hamper the 
elected government in carrying out its policies. And what have we here, in 
this group of five accused? They have all signed a letter, the Shministim 
Letter, a letter signed by hundreds of youths and addressed to the Prime 
Minister, The Defence Minister, the Army Chief-of Staff, and to the press. 
Yes, to the press, especially to the press! And what did they write in that 
letter of theirs? Let me quote: 'We refuse to become the occupation's 
soldiers." The word 'refuse' is underlined in the original, please note that in 
the minutes. Yes, 'We refuse to become the occupation's soldiers. When 
the elected government tramples upon basic democratic values, we have 
no choice but to obey the dictates of our conscience and refuse'. And here 
comes the crux, note this well: 'We call upon our contemporaries and upon 
the soldiers - whether conscripts, reservists or career military personnel - 
to do as we do'. Need I add anything? These words speak for themselves. 
These five are no Conscientious Objectors, they are agitators involved in 
Civil Disobedience, in trying to overturn Constituted Authority, an 
attempt which cannot be tolerated..."

"Just a second" interjects Colonel Levy. "I feel that this distinction 
between  Conscientious Objection and Civil Disobedience might not be   
as watertight as you try to make it appear. Is it not reasonable to assume 
that a person who considers the army's actions to be highly immoral, so 
much so that he prefers a lengthy prison term to becoming part of that 
army, would naturally want also to persuade others not to perform these 
immoral acts? If a company commander orders a soldier with high moral   
values to shoot a child, obviously the soldier will refuse. But he will likely 
also try to persuade the rest of the company not to shoot the child. What, 
then, of your fine distinctions?" 

Other lines of Kostelitz's argument got cut off even sooner. "If political 
refusal is legitimized, there will be chaos. Soldiers will choose which orders 
to obey and which not, there will be total anarchy and the army will go to 
pieces. And it will not stop with the army. Citizens will choose which laws 
to obey and which not, and always the lawbreakers will claim they are 
acting according to their conscience. For example, if there is a special tax 
to finance the Separation Fence, some people may refuse to pay it and 
justify this by their conscience. The very idea - everybody understands 
that refusal to pay taxes is a political act, not an act of conscience..."

Colonel Levy: "Are you completely sure?   Can there be no circumstances 
where refusal to pay taxes, too, may derive from conscience? For example, 
if a governments decides upon "transfer" of the Palestinian population 
and imposes a special tax to finance that operation, would a person 
strongly objecting the measure and therefore refusing to pay the tax be 
acting from political  motives or for reasons of conscience? Or another 
example: if the Palestinian Authority imposes a special tax to finance the 
Hamas operations, and a Palestinian who is morally opposed to suicide 
bombings refuses to pay it, would you consider his act a political or as an 
act of conscience?"

Later on, Kostelitz contended: "The army does recognize the freedom of 
conscience. It is willing to grant exemption to pacifists - to pure pacifists, 
whose objection to military service in unadulterated by any other motives, 
who object to war, all wars without exception, to all armies without 
exception. It is not willing to grant exemption to those who object to a 
particular war, to a particular military operation, to a particular government 
policy. That is not conscience, that is a political and ideological 
opposition, an illegitimate attempt to blackmail the government. The 
government cannot tolerate such an attempt to flout its legitimate policies, 
or the country will be plunged into chaos and anarchy..." 

Col. Levy: "But is the case of the pacifist so much different? The political 
refuser challenges a specific government policy, the policy of starting a 
certain war or holding on to a certain territory, and you consider that 
illegitimate. But the pacifist also challenges government policy, in fact on a 
deeper and more fundamental level. Government policy, in Israel as in all 
other states, is based on the assumption that use of force is acceptable 
under certain conditions, that in some situations there could be a 
legitimate reason to go to war. The pacifist challenges that basic 
assumption head-on. Yet you are willing to grant him exemption."

Kostelitz: "Well, in practical terms it is considered that the challenge 
offered by the political refuser is more audacious, more undermining the 
government's authority. Also, it is assumed that the number of pacifists is 
not likely to rise significantly, while the political refusers have the 
potential of growing enormously if not checked. And if that assumption 
proves wrong, if the  number of pacifists grows so much that the army  
starts experiencing significant manpower problems, than the army might 
start conscripting them, too. Their exemption is not a right. Rather, it is a 
favor, a privilege, a goodwill gesture which may be overruled if the needs 
of state security so dictate." 

At the end of the session, spirits were more high then we expected them to 
be after a court day devoted to the prosecution. But a veteran jurist, who 
had attended this court martial  since the beginning, cautioned against 
reading too much into Colonel Levy's interruptions and utterances. "We 
know that he takes this case - and the Ben Artzi case, too - very seriously. 
He is aware that, one way or another, it will influence his future career, that 
every dot and comma in the final verdict will come under close scrutiny 
from many quarters. He will think carefully about it and look very closely 
into every aspect, of both the prosecution's case and the defence's. More 
than that it would be futile to guess."

There is, anyway, not much longer to wait in suspense and speculation. . 
Next Tuesday  (November 11), Adv. Dov Khenin will deliver the defence's 
summations; the session will be preceded by a solidarity vigil outside the 
court. A day later, Colonel Levy will deliver the verdict in the long 
standing case of Yoni Ben Artzi, the pacifist who was not considered 
"pure." The verdict of the Five cannot be very far away, either. 

Meanwhile, today's session had a positive side effect: the prosecution has 
introduced in evidence the text of the special standing orders with regard 
to refusers. Until now, we were not at all sure that such orders existed in 
writing at all, and could only guess and infer their content from the 
authorities' actual behavior. That might be quite useful to a number of new 
of refusers who are right now starting their own intricate struggle. The 
latest news is of a girl refuser who already spent initial 14 days behind 
bars and seems bound to spend much longer - the army being in a hurry  
to prove that girls are not easily exempted either.