Conscience on Trial
On 4 January 2004, the "trial of the five" came to an end. The 11 months trial marathon finished with a harsh sentence: one year imprisonment for five young conscientious objectors, on top of the 11-14 months they had already spent in military arrest or "open detention" at a military base.
The "trial of the five" - Haggai Matar, Matan Kaminer, Noam Bahat, Adam Maor, and Shimri Tzamaret - and the more or less parallel trial of conscientious objector Jonathan Ben-Artzi, mark a new phase in Israel's treatment of conscientious objectors.
This War Resisters' International report gives background information on the two trials, and the six conscientious objectors concerned. It is aimed to raise awareness for the new treatment of conscientious objectors in Israel, and solidarity with those in prison.
One year ago, War Resisters' International published a comprehensive report on "Conscientious objection to military service in Israel: an unrecognised human right". This report gives a detailed explanation of the legal situation regarding conscientious objection to military service in Israel, and is still valid. However, although the legal framework did not change, the court-martials have to be seen as a departure from an long-established practice in dealing with conscientious objectors. This development began in later 2002. WRI's report from February 2003 noted the beginning of the increase of punishment for draft resistance: "It can be seen that the average was below 90 days for draft resisters who were called up in 2001, those who were called up in 2002 received sentences of more than 100 days on average, with average sentences climbing to more than 140 days for those called up from August 2002 onwards (...). The increase of sentences is the result of repeated imprisonment. Before 2002, draft resisters were usually sentenced 4 or at maximum 5 times, until they had spent at least 90 days in prison. (...) For those who were called up in 2002 the situation changed. Victor Sabranski, who was called up in May 2002, spent 126 days in prison. Those who were called up from August 2002 on spent even more days in prison, being sentenced five, six, seven, or even more times, with no end in sight."
In February 2003, the first conscientious objectors were transfered to court-martials. On 12 February 2003, Jonathan Ben-Artzi, after having spent more than 200 days in prison, was taken to a meeting with a Brigadier General at the General Staff Headquarters in Tel Aviv. There he was offered an "easy service, without gun or uniform" if he would pay the price and enlist into the army. On refusal, he was told that he now would face a court martial, which is empowered to hand down a sentence of up to three years for refusal to enlist. Within a few days similar developments occured in several cases: Dror Boimel and Uri Ya'acobi, whose cases were later dropped, Haggai Matar, Matan Kaminer, and then Noam Bahat, Adam Maor, and Shimri Tzameret. The cases of Haggai Matar, Matan Kaminer, Noam Bahat, Adam Maor, and Shimri Tzameret were then put together to the "Trial of the Five", while the trial of Jonathan Ben-Artzi went ahead separetely.
Both court-martials have to be seen as test cases, and it has to be feared that they will determine the treatment/punishment of conscientious objectors in Israel for the near future. This report, and the documentation of these trials, is put together to raise awareness, and to contribute to the recognition of the right to conscientious objection in Israel.
The "Trial of the Five" was the joined trial of Haggai Matar, Matan Kaminer, Noam Bahat, Adam Maor, and Shimri Tzamaret. All five had spent time in military arrest prior to the trial - Haggai Matar was the first one of the five to begin this "procedure", and also the first one against whom proceedings for a court-martial were started.
The first hearing of the joint trial was on 15 April 2003 at the Military Court in Jaffa. The case of the prosecution was presented by the military prosecutor, Capt. Yaron Kostilitz. He argued that "according to the decisions of the Supreme Court, the conscience can be a basis for exemption from military duty, only if it is expressed in pacifism".
Dr. Dov Khenin, the defendants' lawyer, first brought a technical argument: that the military court does not have any jurisdiction in this matter, because the defendants "refused an order directed to begin mobilization procedures for military service". He argued that, if the mobilization procedures were never concluded, then the defendants were not soldiers and the military court would have no jurisdiction over them. Khenin also complained that only two of the five ever saw the Conscience Committee, and they were only given a short hearing that was never completed. The other three never received an invitation to the Conscience Committee, and therefore he demanded that their case be referred back to a preliminary hearing in the Conscience Committee.
He then turned to a discussion of the issue of conscience. He presented a letter sent to the military authorities requesting exemption from military service on basis of conscientious objection to service in an occupation army. This letter served as a basis for exemption for reasons of conscience. However, this letter was written by a woman. He concluded: "There is not one conscience for men and another conscience for women ... You can not differentiate by gender one conscience from another".
Extract from Haggai Matar's testimony in Court
My next visit to the Occupied Territories was to the Salfit area in the West Bank, with the "Gush Shalom" movement. We came to meet a man who was unfortunate enough to have his lands "on the wrong side of the tracks" - they were inside the C zone (under full Israeli control), ending just a few meters from the B zone (the Palestinian-authority's jurisdiction). After having failed to gain a building-license from Israeli authorities, the land-owner had to build his house without a permit. The IDF came and demolished the house. The owner rebuilt, and the IDF re-demolished. We came there to help build the house the third time. A few months later I was to hear that this house too has been demolished… Thousands of houses have been destroyed in the occupied territories since 1967 under the claim that they were built "illegally". Later on that day we got to a demolished quarry not too far away from the newly-rebuilt house. The owner told us that for years he used to make bricks for some of the near-by Jewish settlements. Until one day, several "Shabac" (secret services) agents came and asked him to confirm that a certain individual in his village was a Hammas militant. He knew that the person in question was not a militant, and refused to cooperate. Three days later the bulldozers came and took down the quarry. In a report on administrative detainees "B'Tselem" (a human's rights NGO, working in the occupied territories) mentions that: "The Shabac is known to threaten Palestinians in an investigation that they be prosecuted unless they provide intelligence against other people. Crowning these information sources "confidential" deprives a detainee the opportunity to prove the tipper was working out of personal-interest, giving false information." And also that: "[The military court's] relying on confidential sources suggests that the judicial system has absolute trust in the Shabac. It seems this trust was not lessened, even after a long series of cases was uncovered, in which Shabac agents deceived and even lied to judges. Shabac-perjuries lead to a public inquiry board (the Landoy Committee, 1987). The committee's report described how Shabac agents used to lie in court, in order to prevent the disqualifying of evidence taken illegally". This is how, again, I learnt how easily and arbitrarily a man like Usama can be sent to jail, or another man's life can be bulldozed down…
I joined Ta'ayush in their third convoy to the Salfit area. We brought food to the besieged village of Yassuf. We marched through the village together, as Palestinians and Jews, Israeli citizens and non-citizens. We were doing quite well unloading the trucks to the village's food deposits. Everything was fine, until five Boarder-Police command-cars stormed in. The soldiers mounted the trucks, stepped on the food, and hit the activists, as CNN cameras were documenting the whole scene. When eventually we left the village, several activists were arrested, and later released. That night, Jewish settlers from the near by settlement of Tapuach stormed the village, burnt cars and shot at houses. This was "pay-back" for the village's cooperation with us. No one stopped them, and no arrests were made.
I was first incarcerated on 23.10.02. On 20.10.02, three days before that, I read the following story in Ha'aretz: "Last night, the last six families - about 40 people - have left the village of Yannun, close to the settlement of Itamar. According to village residents, they have decided to leave the village following an endless line of harassments on the side of Itamar settlers… "Evidence given by one of the villagers goes as follows: 'When the olive-harvest season started, Itamar settlers started shooting in the air and towards village-houses. Gradually, raids became more frequent, with settlers coming late at night, braking windows and shooting into our houses… Harassments came to a peak as Itamar residents turned their drainage to flow towards the village… Last Thursday they had another raid, during which the power-generator that was used by the families was destroyed.'"
That night I got a call from Ta'ayush. I was told that the following morning activists would be leaving to Yannun in order to secure the villagers' return, and protect them from the settlers. I agreed to come along. By 9:00 the following morning, I was already on the dirt road leading to Yannun, with four other activists.
I don't know how to describe Yannun as it looked on the 21st of October 2002. I can only share a few dry details: A power-generator room, broken into and burnt. Three huge black water-tanks, the village's water source, upside-down, their contents spilled. Countless bullet-holes in the village's houses, their windows broken. But worse than these was the complete silence. An entire village - still, dead. Doors shut, and not a soul in sight. And even worse still were the signs of a recently lively community. Laundry cords, a cola bottle - half empty, etc. Touring the olive-groves, we saw two caravans on neighboring hills, and another structure, which I later learned was a chicken-coop. These were the extensions of the otherwise quite remote settlement of Itamar. I remember being speechless about the whole thing even then. We found a cat, and I suggested we call her "Galut" (meaning "exile"). The others felt I was too pessimistic, so we decided to call her "Shiva" ("a return").
Later, one of the families returned - A ten-year old boy, and a 16-year old, their mother and her sister. We managed with some rusty Arabic and mime. They wanted to take us on a tour of their groves. The ten-year old wouldn't come. He stayed at the doorstep, crying "Mustautinin…." He was afraid of the settlers. We strolled for a while, and reached a small brick-wall. I was about to walk over it, when the mother cried: "La! Mamnu'!" I learnt that a few weeks before an armed settler came and made it quite clear that no one is to cross this wall any longer, thought it was most defiantly their land. Since then, no one tried… Later we met one of the village elders, who told us about a settler called Avri who was there after the power-generator was burnt down. "I burnt your power-generator," said Avri, "And I sent the men who shot at your houses at night. And when all is over and done - I'll still be here, and you won't".
The village was dark at night. Only the surrounding settlement-caravans had light. We took turns at patrolling around the village all night. Nothing happened. During my shift, all I could think of was those people up in the caravans. What could they possibly be thinking? What are they doing here? What do they think of us?
I was due home in the morning. I had to pack and say my last goodbyes. A large group of activists came to the village during the night, and a few more came in the morning. They were planning on going to harvest olives with the villagers. At 9:00 a car left towards Akraba, and from there, back to Tel Aviv. It was wonderful to see a truck full of furniture, followed by a family on the return. In Akraba we met a UN force and representatives of the EU, who were on their way to Yannun. They heard that shots were fired from the settlement. We called our friends back in Yannun, and they confirmed it: while on their way to start the harvest, settlers started shooting at them. The Israeli police and the IDF didn't respond to the call for help.
The following day I went to prison. I knew this was the only thing to do.
Taken from: http://www.refuz.org.il/maatartestimony.php#englishstuff, 08 January 2004
The next two hearings of the trial - on 24 June 2003 and 15 July 2003 - were mainly devoted to the testimonies of the five conscientious objectors. However, in its session on 15 July 2003 the court also heard Col. Noam Burstein, who heads the Conscript Division in the Mobilization Base, and in this capacity was responsible for the repeated imprisonment of the five conscientious objectors.
"In the cross examination by Adv. Dov Khenin, the defendants' attorney, Burstein admitted that he had never seen any official order or regulation dealing with conscientious objectors and that he does not know of any such official procedure, despite the fact that during the period that he holds his position, he was personally responsible for sending tens of conscientious objectors to prison. Burstein admitted that he had never been present in any briefing on the subject of conscientious refusers and that he had never received any tools from the IDF to deal with the subject. He explained that the method of dealing with refuseniks is a 'mixture of personal discussions and prison sentences', which often convinces the refusenik to change his mind and agree to be mobilized".
Extract from Matan Kaminer's testimony in Court
The connection between the violation of the right to democracy and other violations
The right of every Palestinian, as a human being, to democracy, is violated daily by Israeli military rule. We have also seen that this is far from a temporary situation. In such circumstances, any oppressed people would fight for its independence - and that would be its prerogative. The more brutal and oppressive an occupation becomes, the more resistance it will meet. This resistance may cross the line into immorality, and when it does so it is to be condemned, but it does not nullify the rightness of the cry for independence and self-rule, the cry to make it possible for the individual, the neighbourhood or the entire people to rule itself, and decide for itself how its future will look.
An occupation can be more or less cruel. Thus for example the Japanese occupation of China in the thirties was much more terrible than that going on in the Territories. Just as the existence of the occupation cannot justify atrocities on the part of the occupied, it cannot do so on the part of the occupier. These two kinds of atrocities, which can and should be prevented, are nevertheless directly derived from the existence of the occupation. Occupation turns people into things, whether "trump cards" or "drugged cockroaches" (as one Israeli general put it). It makes them invisible and unimportant. Even when the occupier recognizes certain rights they may have, these are always thrust aside when "considerations of security," which are really considerations of convenience, are present. Occupation is fertile soil for atrocity.
Soldiers of an occupying army are in an impossible situation. They are men of war, trained to deal with other men of war. They are not social workers, doctors, lawyers, judges or mayors, but they are many times given responsibilities which only such professionals should wield. As men of war, they use the tools known to them: the command, the emotional distance, the threat, the gun. When they become sadistic, this is not because of some basic evil which was in them beforehand, but because of their lack of freedom, as soldiers of occupation, to treat people as people. This is why they shout, beat, humiliate and murder. They get screwed up inside and go home. Now they are used to not treating people as people. They shout, beat, humiliate and vote for the National Union.
Refusal I did not decide to refuse in one day. I went through the first military tests, believing I would find a way to serve without participating directly in the dirty machine of occupation, and that if I had to refuse an immoral order I would know to do so and face the consequences, all within the framework of the army. But with time, with the worsening of the oppression in the Territories and the loss of the peace horizon during the Intifada, I began to understand that my conscience would never make it possible for me to participate, even indirectly, in the work of occupation.
I do not think there is any serious person in the world who could claim, from a moral standpoint, that one should never refuse an order. It is obvious that there are orders so immoral that one should not fulfil them, regardless of their legality. The only question is: what are these orders? That is a question of conscience. All the arguments I have given here stood in my mind when I decided to refuse the order to join the army. I am well aware that the IDF does not make its own policy, that the occupation is a policy decided upon by the elected government of Israel. I protest any way I can against this government and any government of occupation; but that is not enough. My conscience makes it impossible for me to pledge allegiance to a body which carries out this heinous policy, and to carry out its orders.
I am not against the State of Israel, the people in Israel or Israeli society. My conscience commands me to do all I can for Israeli society - my society. I've done so in the past and shall continue to do so in the future. The occupation is a terrible crime, immoral, malignant, a crime against another society whose nasty fingers are penetrating our own society and poisoning it. I cannot join the army in such a situation. I can only demand that my conscience be recognized and that I be allowed to do civilian service instead of military service. I sincerely wish to engage in service in which I would work for the liberty of Israeli society.
Taken from: http://www.refuz.org.il/kaminertestimony.php#kaminerenglishtestimony, 08 January 2004
The next two court sessions - on 18 September and 20 October 2003 - were devoted to the cross-examination of the conscientious objectors. Therefore, these sessions turned into a form of inquisition of conscience of the worst kind. On 18 September, military prosecutor Capt. Kostelitz tried to introduce a distinction between "political" and "conscience" when questioning Haggai Matar. Haggai Matar replied that his position is both political and conscientious, and that it is impossible to break these two spheres apart. Prosecutor Kostelitz asked almost the same questions of Matan Kaminer. Matan Kaminer repeated the arguments from his original testimony: "I oppose violence in general," he said; "only extreme conditions could make the use of violence legitimate, and such extreme conditions are far from existing here and now. If we leave the Occupied Territories completely, if we allow the establishment of a viable independent Palestinian state, and if we live in peace and equality alongside this state, cooperating with it economically and culturally , then the existential situation in the region will be drastically different. There will be no suicide bombs and no violent actions committed by Palestinians against Israeli citizens. The mandatory draft will be irrelevant, but if there is still need of an army under these conditions, then I'll be ready to take part in it."
Extract from Noam Bahat's testimony in Court
What is conscience? Conscience is that little voice in your head that tells you something you are doing or witnessing is wrong. The same voice that will tell you to do something even if it is against your personal interest. A conscientious person will follow his conscience and not his personal interest. But not all people are conscientious. Most people get used to fooling their conscience, they deaden it and make it stop working. I'm a conscientious person. I don't know why, perhaps because I was brought up this way or because I was born this way. I have always been and always will be a conscientious person, one who thinks about things too deeply. A person who, like me, follows his or her conscience, does things daily; he or she does not only refrain from doing things. Active not passive.
As a child I always refrained from violence and if I ever 'blew up' I would feel pangs of conscience. I always wanted to learn to control myself completely, to be more reserved. The subject concerned me quite a bit when I was in elementary school and I thought about it a lot, especially after fights with my big brother and little sister. Today I am a very reserved and balanced person, having worked at it with the belief that people should not fight and quarrel but should learn to find logical solutions in situations of conflict. I became a member of the youth movement 'Bnei Hamoshavim' in my community. In my youth movement I first became acquainted with issues of equality, freedom, the environment, issues which shaped my world view and my beliefs.
In the tenth grade I started to be a youth guide. My first goal was to contribute to society by creating an additional place for kids to be, like a club. But during my first year as a guide I understood that the goal is not just to provide a place, to educate, to pass on to the kids the same values that I received at their age in the movement. At the same time I went through a process at school, in which I stopped believing in the formal education system, a dogmatic and racist system, that educates for grades and not for values. I looked around, tried to be critical and weigh things evenly, and decided to leave the educational system. I finished the tenth grade and left school. In my second year as a guide I implemented my educational outlook on the eighth-graders in my group. I tried my hardest to put across an educational message: openness, tolerance, understanding. I got this message across through my personal behaviour and through methodic tools.
In my third year as a counselor the Intifada began. From the viewpoint of a youth movement guide, an informal educator, I tried to understand and to explain to my charges the impossible. How could Israel hold all these people hostage? On one hand stands the Israeli consensus in which Israel is good and the Arabs are the enemy. On the other hand is the knowledge that for more than thirty years so many people are living under occupation. Living without freedom, liberty, with no freedom of movement, under great poverty. I vacillated in this contradiction between the values in which I believe and the society around me that continually violates these values one by one. I vacillated between the wish to contribute and to give three years of my life like everybody, and the knowledge that this so-called contribution actually only contributes to entrenching that contradiction, the contradiction between my values and the state, the army. I just could no longer believe that the country in which I live engenders this terrible injustice.
When I began my Year of Service I began to ponder a question which only became more significant as time went on. What am I, an 18-year-old kid with no ability to influence the system, supposed to do when the state of Israel, my state, my homeland, destroys the lives and rights of three million people. Every educator who aims to teach values should see as his or her purpose not only the explanation and justification of those values, but the teaching of critical thinking and the aspiration to make values into reality, and creation of conscientious human beings who follow their morals and values. Children are exposed to values and internalize them, but then comes the test of reality.
This sounds terrible when put bluntly, but this has been my experience with the people around me, this is the mood among the Israeli public, among the young people who are becoming soldiers. One can say clearly that this mood is strengthened by the army's reluctance to investigate abusive and even murderous soldiers and in this way signals that all is allowed. I cannot accept this treatment. Every time an Israeli or Palestinian child is shot our conscience gets a bullet straight in the heart. After mistreating our conscience so awfully, it sits alone in its corner and sulks, because it wants to avoid the pain of hearing, the anxiety of seeing and the nightmare of knowing.
The final outcome, if we say it or not, is that the Palestinians have long since stopped being people in our view. This was so even for me, but once I began questioning the issue my conscience could no longer be silent. It could not help hearing any longer, but at once everything sounded clear and strong, as if someone was yelling in my ear, and my conscience heard what it could not take. My confusion grew and then came the final decision not to enlist at all. As a man of conscience I could not take part in the army of oppression.
Taken from: http://www.refuz.org.il/bahattestimony.php,08 January 2004
The cross-examination of Shimri Tzamaret, Adam Maor, and Noam Bahat took place on 20 October 2003. This time military prosecutor Capt. Kostelitz had prepared himself with copies of Shimri Tzameret's "prison blog" (Hebrew only at http://e.walla.co.il/ts.cgi?tsscript=category&path=225), trying to confuse the conscientious objectors with a lot of quotations. He questioned Adam Maor about the letter which the conscientious objectors signed in June 2003, calling from the military prison upon Palestinians to avoid attacks on civilian targets.
"You wrote specifically asking your Palestinian friends to avoid killing civilians. Does that mean that you approve of the killing of soldiers?" Tense silence in the court. Everybody had seen the morning headlines telling of three soldiers ambushed and killed in a West Bank village. "I am very much against killing in general, of civilians or soldiers. In that letter we specifically mentioned other courses of action Palestinians may take, such as mass demonstrations, hunger strikes or the dismantling of army roadblocks. Still I must say, if a foreign army was occupying Haifa where I live, if roadblocks were depriving all of us of the most elementary freedom of movement, if we had grown up seeing our fathers being humiliated by the foreign soldiers - frankly, I don't know how we would have behaved."
Extract from Adam Maor's testimony in Court
The evening I decided to refuse to serve in the Israeli army I was at my father's house and I watched my 1 year old brother, Daniel, making his first steps. No words can describe my feelings at that moment but I remember picturing him immediately reading, writing and playing music and imagining the trips we would take together. In the background the Israeli television reported the events of the week, it was Friday night, and I saw Palestinian children throwing stones at monstrous Israeli tanks and being shot at in return. Huge sophisticated military vehicles were busy destroying the infra structure of what remained from the Palestinian cities, including schools and hospitals. Dozens of people were killed and injured every day. That night I realized that joining the army means robbing these children of whatever I was dreaming for my brother. Even the most basic things without which we cannot imagine our daily life, are robbed from them: housing, food, entertainment, health and personal safety. I could never say that I love my brother, I could never dream a happy childhood for him if I take part in a system that oppresses other children. Because in a place where young children are snatched out of their beds at night and are held prisoners in order to extract true or false confessions from their parents there is no room for childhood. And I will never take part in the creation of such a place. But there is more to it. The events I told you about are but a small part of what I know, which is a small part of what is happening. Colonialism has always engendered protest, which has never stopped till the end of Occupation. Terror affects our lives in every possible domain and causes the deterioration of the Israeli society. The continuation and maintenance of the Occupation are the continuation and maintenance of terror. Time and again I have been deceived by Israeli leaders who promised us peace and did not keep their word. I am watching the downfall of the state of Israel and I don't want to contribute to this downfall. I will not take part in the creation of a place where my brother can get hurt every time he steps out of his home.
I don't know what the Israeli government is trying to achieve in its continuous refusal to end the occupation, or in persisting in committing the most horrible crimes against the Palestinian population. Is it the wish to create a voluntary transfer or to break the spirit of the Palestinian people and their aspirations for independence and freedom? I do not know. All I know is that only evil can come out of these evil, corrupt and immoral actions. I cannot take part in it. I don't remember how many times I have spoken to my young brother during my 5 months in jail, trying to explain to this 3 year old toddler what is prison and why I cannot come to see him. But when he grows up I will be able to tell him I did it all for him, thanks to him and that I had no other choice.
Taken from: http://www.refuz.org.il/maortestimony.php, 08 January 2004
Noam Bahat was questioned about his correspondence with the military authorities. At the age of 17 he had asked not to be sent to a combat unit. "You have come quite a long way since, isn't it?", said Kostelitz. Bahat replied: "If you read these letters you must know that at that time I contemplated joining the army's Educational Corps and helping those soldiers who come to the army with lack of basic education, some of them actually illiterate. Since I have already some educational experience and that is what I want to do in life, I thought that would be the most useful thing I can do. But gradually I realized that the education which the army provides to such people is short and superficial, and its main purpose i still to make them into 'useful parts of the military'. Also, while I had this correspondence I heard from friends who already went into the army what is really going on in the territories. For example, the practice of forcing Palestinians to be human shields when soldiers are besieging suspected terrorists and force their neighbours to go first into the building, and thus sometimes get killed. Later it was very much in the news. But I had already heard about it first- hand from friends. I decided I could not be part of a body which does such things. I am still very much willing to do educational work, as a service to the society, but in a civilian framework."
Extract from Shimri Tzameret's testimony in Court
I don't have to look beyond the border in order to find the immoral results of the army's actions. I just have to look at my family, my friends. I see how these actions just simply destroy their lives, my life, the Israeli society.
I'm very afraid of one moment. I pray that this moment will never come, but in my imagination it is very clear, with all the details:
I open the newspaper. There is an item about the death of a close friend. I scream in my heart: 'your death is awful. Your death was not necessary. The government led to it when it led an unnecessary war'.
My friends from school are fighting now in the occupied territories. They are guarding Netzarim and Hebron. They risk their lives there for no reason. I refuse to go to the army, since I refuse to support a policy that will cause their deaths. I feel my going to the army is like killing them with my own hands.
65 years ago, my grandfather went from his kibbutz to save Jewish people in Europe. As in amok, he sent them in small boats to Palestine, in a time when it wasn't legal. In his letters he explains this amok: he knew they were going to be killed there. At that time, and at all other times of his life, he dreamed and did things with the goal of creating a secure place for the Jewish people. He dreamed and did things in order to create a society of justice and equality - all the things that the Jewish people did not have in Europe. Today, Israel chooses to be a conqueror, and has become everything but what my grandfather dreamt about. Israel is not a shelter to the Jewish people any more. Israel breaks human rights, and by this also risks the lives of its own citizens. My refusal gives me the right to stand in front of his grave, where his name, MY name, is engraved, and say to him: "I didn't participate in these things." I refuse, since I refuse to be a traitor to his dream.
I have friends whose families have no food. I can't accept their hunger. I can't accept a war that causes poverty and unemployment. Every war causes harm to economies and destroys people's lives, but this war is avoidable. It is possible to leave the occupied territories tomorrow and by this, end this war. I refuse to participate in an avoidable war.
I refuse, since I know too many people who were killed in the terror. A year and a half ago the mother and sister of a girl who studied with me were killed. A few months ago, a brother of another guy who studied with me was killed. I saw their families - they are broken people. Nothing in their lives will be 'all right' again. The government, using the army, in order to preserve the settlements, enabled these deaths to occur. If I was part of the army in this situation, and a friend of mine were killed, how could I look at his family faces?
When I was in the prison, and before it, I met many soldiers who served in the occupied territories. They told about the roadblocks, about searches in the Arab homes. They told about beating 'insolent' Arabs. They told about shooting people for fun. My generation, the roadblock generation, goes to the occupied territories and comes back with new moral norms. It is a mistake to think that these norms will disappear inside the 'green line' (the old border). Does somebody assume that these soldiers wouldn't think their girls are 'insolent'?
I refuse to take part in this moral corruption.
Serving the army in today situation will help to make Israel a place which is insecure for my children to live. Serving the army in today situation will help to make Israel a place where my children won't want to live. Serving the army in today situation will be a treachery upon my future and a treachery upon my children's future.
I'm willing to pay the price for my choice to refuse. I've already been in prison for 11 months, and that's only the beginning. I'm glad to pay this price. My friends (especially the ones who really fight in the war) may be angry when I tell them all these things, but I will continue. I do it for you all. I do it because I love you.
Taken from http://www.refuz.org.il/zamerettestimony.php#englishtest, 08 January 2004
On 4 November 2003, the military prosecutor had his day to sum up the case for the prosecution. Because of the importance of these arguments, the relevant parts of the report by Adam Keller is reproduced below in full.
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."
Adv. Dov Khenin presented the arguments of the defence on 12 November 2003. Again, because of the importance of the arguments, the relevant part of Adam Keller's report is reproduced in full below.
Adv. Dov Khenin, 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. Khenin sat down."
The verdict came on 16 December 2003. As Jonathan Ben-Artzi was found "guilty" earlier (see the next section on his trial), a "not guilty" could not be expected, the tenor of the "guilty" verdict came as a surprise. Judge Colonel Avi Levy started out accepting that "freedom of conscience" is a right under Israeli basic law. However, the verdict proceeded to give it such an interpretation as to nullify its practical value: exemption from military service should be granted only to pacifists and nobody else, because pacifists are small in number and do not challenge government policies but just seek personal salvation.
Colonel Levy went on: "We recognize that the accused do feel moral and ideological revulsion about taking part in an army which according to their belief is perpetrating manifestly immoral acts. But the act of refusal is derived not only from this revulsion but also - and perhaps mainly - from the wish of the accused to change public opinion in general, to effect a change in the views and in the behavior of those who are about to go into the army and of conscripts and reservists, and finally to cause a change in government policy and bring about an end to the occupation." (...) "There exists no legally established alternative civilian service in Israel, so the military authorities cannot be blamed for failing to offer one as an alternative to the five accused. But it is the position of this court that even if it existed, it would not have provided a fitting answer for the case of these five. The requirement of equality is not that citizens just give three years of service, but that they all undergo the same risk to life"
On 23 December the prosecution and the defence set out their arguments regarding the "punishment" of the Five. Prosecutor Kostelitz said: "What we have here are ideological criminals, and former Supreme Court Judge Yitzhak Zamir already noted that these are the worst of criminals, since they not only break the law, but flout its authority, and therefore should be doubly punished. The very fact that they are idealistic people and in many ways positive characters should be counted against them, since it helps them find followers and spread their law-breaking further into the society." (...) "These persistent lawbreakers must be made to render the military service which they owe to their country. It doesn't matter how long it will take: in the end they will be made to do it. If a heavier punishment and the fear of a still heavier one is the only way, then this way must be taken. It happened before. There were refusers as defiant as these ones, and the military courts knew what to do with them. Take Gadi Elgazi in 1980: he refused four times and was sentenced to a month each time; and when he persisted the military court gave him a whole year."
The sentence hearing was set for 4 January 2004. The outcome: One year imprisonment, on top of the up to 14 months the Five already spent in Military Prison or "open detention" prior to and during the trial. Adam Keller reports: 'From Colonel Avi Levi's first words there was no doubt left: "From analyzing the testimonies of the accused we have come to the conclusion that their acts are mainly motivated by the wish to extend opposition against government policy in the Territories and draw a stream of others to follow in their footsteps, either by refusing to enlist or refusing to serve in the territories." Those who heard him last week already knew that there was nothing more heinous and deserving harsh punishment. "The accused made their refusal public so as to put in question the justification for the army's operations and the morality of taking part in the army. Further, by so doing they undermine the international legitimacy of the state's actions and help hostile nations by providing them with new arguments. (...) The accused refused to be numbered among the ranks of the IDF and share in the burden of defending their country out of their thoughts that the acts of the state and the army immoral and illegal. In this way they are putting their own moral criteria above those of the other soldiers who do serve in the army, above those of their commanders, and even above those of the political echelon which guides the activity of the army. They do these acts both in order to cause a change of heart among the general public but also in order to influence and indeed impose their view upon the political echelon, under the threat that the military system will collapse as a result of the extension of the phenomenon of refusal. (...) Freedom of speech is guaranteed by the law, but some forms of it are still illegal. Making use of it for racist expressions is illegal. Making use of military service - and refusal to it - as part of the freedom of speech is also illegal. (...) Punishment in order to deter others is an old principle in the history of law, but recently it has been called into doubt - as the learned council for the defence has pointed out. Nevertheless, in the case of the offence here under discussion, an offence committed for the specific purpose of drawing the general public into mass law-breaking, when there is a concrete reason to worry about a large number of people, and in that way causing incalculable damage to the army and the state, it is undoubtedly justifiable to mete out a more severe punishment, in order to let the masses at whom the accused directed their call see and understand that the price of refusal is a severe and painful punishment."
After these firm words, Colonel Levi had to reveal that there had been a dissenting judge in the panel of three. "The third judge suggested to his colleagues to content themselves with a punishment of six months. That judge accepted the majority of the arguments of the defence, stating that no punishment whatsoever will deter the accused from persisting with their refusal; that the time of detention which they already spent had been a heavy burden on them. That judge considered the fact that many people avoid military service in "grey" ways without undergoing imprisonment requires some considerations towards the accused, and that it is utterly impermissible to punish them severely in order to deter others. According to that judge, their motives "to change the public opinion" are utterly irrelevant, and the possibility of rehabilitation - which must be a relevant consideration in passing judgment - requires giving a relatively short term so that the accused, basically positive characters full of values, could give a real contribution to the society by the performance of an alternative service as they have undertaken to do. Finally that judge recommended that the Incompatibility Committee discuss their case while they serve their prison term." The verdict did not name the dissenter. The general impression is that it must have been Major Lirit Interter, not form what she had been saying but from the expressions on her face. The verdict also revealed the existence of a hard-liner on the judges' panel who had considered the act of the accused to be "a very severe crime which constitutes a manifest and concrete danger to our existence and our survival" to be punished with the maximum of three years, though he did agree to deduct the fourteen months they already served. After that - according to him - they should be kicked out of the army. That would fit with the impression made during the past year by Captain Yaron Dumai, who made a few remarks - all of them utterly hostile. With the three judges having different positions, the one which won out was the middle position, apparently Levi himself. His proposal: to accept many arguments for severity, but still to take into consideration "that the accused are acting out of belief in the justice of their way, out of mistaken belief that by their acts they are furthering a just cause", and last but not least: "that their illegal acts derived among other things from their being young and inexperienced." (At this point a spontaneous laughter burst out among the audience.) The conclusion: twelve months behind bars, in addition to the already served fourteen. Colonel Levi sounded a bit apologetic when he asserted that the judges acted "not only as military judges or as military officers but also as citizens in a democratic country, a state of law"; that they also follow the dictates of their conscience and that they have acted as judges guided by the principles of justice and honesty and ... did not try to please the military establishment or the governmental one."'
On 7 January 2004, the Five reported to Military Prison No 6, to serve their sentence.
The trial of Jonathan Ben-Artzi
Jonathan Ben-Artzi, a pacifist conscientious objector, told the IDF from early on that he does not have any intention to enlist. What followed was a long prelude to the later court-martial, consisting of several hearings in front of the Conscience committee, and repeated imprisonment.
The Conscience Committee first heard his case in May 2000. At that time no decision was taken, and his enlistment - originally due in March 2001 - was postponed to July 2001. In May 2001 another hearing in front of the Conscience Committee was convened, and after a brief conversation Jonathan Ben-Artzi request to be exempted from military service for reasons of conscience was rejected.
Jonathan Ben-Artzi appealed to the Supreme Court, which decided in July 2001 that the Conscience Committee should review the case and that the claimant be allowed to have a lawyer and witnesses. In November 2001 Jonathan Ben-Artzi appeared in front of the Conscience Committee for the third time, defended by a lawyer. However, his claim was rejected again on the grounds that he is a conflictive person and therefore not a true pacifist. It was also stated that Jonathan Ben-Artzi could not conform to the military system.
Again, Jonathan Ben-Artzi appealed to the Supreme Court, on the grounds that the Conscience Committee lacked expertise and had ignored written testimonies. In May 2002 the Supreme Court decided on the form and not on the substance of the Conscience Committee's decision, and ruled that the Conscience Committee had acted according to the law.
Jonathan Ben-Artzi's imprisonment began on 8 August 2002, when he was sentenced to 28 days imprisonment in Military Prison No 4. In a statement to the IDF authorities he wrote: "I, Jonathan Ben-Artzi, am refusing to join the army on grounds of pacifism. My profound convictions in non-violence began when I was a small child, and developed over the years into a broad political philosophy. Because of my beliefs, my own country is going to imprison me, in defiance of international laws, basic moral values and fundamental human rights. I will go to prison proudly, knowing that this is the least I can do to improve this country, and the cause of pacifism."
From then on, several more imprisonments followed: a second term of 28 days on 4 September 2002, 21 days on 1 October 2002, and again on 21 October 2002, a fifth sentence of again 28 days followed on 10 November 2002. A sixth prison term of now 35 days followed on 8 December 2002. The seventh prison term was given by a general of the manpower department of the IDF on 16 January 2003 - a fist indication that his case was treated like a hot potato. He was again sentenced to 35 days in prison.
On 12 February 2003, Jonathan Ben-Artzi was taken out of his prison cell, and brought in front of a Brigadier General at the General Staff of the IDF in Tel Aviv. Adam Keller gave a report:
This personage went out of his way to appear friendly ("I am not talking to you as a general to a draftee, but as Avi to Yoni, okay?") and made what was supposed to be "a generous offer": Ben-Artzi would consent to be enlisted and have the legal status of a soldier, and in return the army would grant him "an easy service, without a gun, uniform or military training". Ben-Artzi was given a few days to consider this offer, but in fact his response had never been in doubt: he is willing and ready to give three years for doing useful service to the benefit of Israeli society - but only in a civilian framework having nothing to do with the army; he is absolutely unwilling to be part, in any capacity whatsoever, of an army, an organization whose main aim is killing and violence; not of any army, in general, and certainly not of an army of occupation engaged in large-scale brutal oppression of another people. Upon informing the authorities of his decision, Ben-Artzi was informed in turn that he would face a court martial, empowered to sentence him to up to three years. Also, from that moment on he was subjected to a series of petty humiliations, never before experienced during his previous imprisonments: being handcuffed whenever taken from one place to another (though he has never shown any inclination to run away); being held in a cell without any furniture, so that he had to sit on the floor; being given food without utensils... Three days of that were the prelude to yesterday's hearing, on the issue of whether or not Ben-Artzi should be remanded in custody until the end of the court martial. The prosecutor went out of his way to be nasty, describing Ben-Artzi as "no better than any deserter or drug addict". He was no pacifist, since "the competent military committee has already reviewed his case" and decided he was not. He must be kept continually in prison, for the sake of "deterrence", since letting him go free until the court martial renders its verdict would "undermine discipline in the army". Ben-Artzi's lawyer, Adv. Michael Sfard from the office of the renowned human rights lawyer Avigdor Feldman, rebutted these arguments, stating that the "competent committee" was composed of military officers with no knowledge of or interest in pacifist principles, that they were rejecting virtually any claimant who appeared before them, and that Yoni Ben-Artzi was "the classical, clear-cut case of a principled pacifist: a person who already chose pacifism and non-violence as the subject of his elementary school essays, who in school refused to attend a judo class since that involved using force, and who in the years before his conscription date had boned up on the history and philosophy of pacifism - for which he had two testimonies of university professors. Further, Adv. Sfard dismissed the prosecution's claim of "undermined discipline" as frivolous and vindictive. After several hours of often acrimonious debate, a compromise was hammered out: pending the end of the court martial Ben-Artzi would stay neither at home nor in prison, but in "open detention" at the army's Induction Center. There was still a further debate on whether or not the prisoner would be allowed to spend the night in his parents' home, for what may be the last occasion in a very long while. The prosecutor, in another display of conspicuous narrow-mindedness, fiercely opposed it. In the end, the judge, who seemed more fair-minded, granted that small boon. This morning, Ben-Artzi presented himself at the induction center for the beginning of "the open detention". There had been a new confrontation with a lieutenant-colonel who once again demanded that he enlist and threatened "the stockade"; upon Ben Artzi's continuing firm refusal, the colonel talked with his superiors and backed off - at least for the moment."
The next hearing took place on 11 March. At that hearing, the court was supposed to hear the charges against Jonathan Ben-Artzi. However, the defence raised the issue of "double jeopardy", claiming that the seven consecutive imprisonments were contrary to the fundamental principle that one cannot be prosecuted twice for the same crime (non bis in idem). The trial was therefore delayed until 14 April 2003, when the court informed the defence that the objection of "double jeopardy" was rejected, without giving any reasons.
In parallel, Jonathan Ben-Artzi petitioned the Supreme Court, arguing that cases against conscientious objectors should be heard in a civilian court, because they never enlisted, and therefore had to be seen as civilians and to be tried in a civilian court. A hearing took place on 8 April, with international observers, including the author of this report, attending. On 15 April 2003, the petition was rejected. The Supreme Court gave as reason that there are no substantive differences between procedures of civil and military courts, and military courts' decisions can be appealed to the Supreme Court.
In the hearing on 28 May 2003, the Military Court heard evidence from the Military Drafting Unit Commander, Colonel Dvora Hassid. She testified that Jonathan Ben-Artzi was given the order to respond to duty, and that he refused. She also testified that Ben-Artzi was given several alternatives of army service, including serving in a hospital. However, Jonathan Ben-Artzi consistently refused any service in the army, as he didn't want to support "the militarisation of the state".
At the start of the hearing the prosecutor tried to prevent Jonathan Ben-Artzi from testifying himself, claiming that his pacifism is irrelevant to the case and only his disobedience is relevant. The court rejected the plea and Jonathan Ben-Artzi testified for two hours on his convictions and his struggles with the military authorities. "I'm not looking to make things easy for myself. Several high ranking officers have met with me and offered me a convenient form of service, without basic training, without wearing a uniform or carrying a gun - under the condition that I formally enlist. I turned down the offer because I'm not willing to be a part of any organization which uses deadly force and violence, not in any role or under any condition. I am willing to serve for three years [the length of a standard military service for men] in a hospital or any other role which benefits society - but only in a purely civilian environment which has nothing to do with the army."
In his cross-examination the prosecutor claimed that Jonathan Ben-Artzi is really only refusing to serve in an occupying army and not refusing to any military service. Ben-Artzi responded by saying that his objection to the occupation is a part of his total objection to military service, just like "an orthodox Jew doesn't drive on the Sabbath, but the holiness of the sabbath is only a part of his conviction, not all of it".
On 23 June 2003, Jonathan Ben-Artzi's sister Ruti Ben-Artzi, and Yoni Yechezkel, a fellow conscientious objector, testified in court. Ruti Ben-Artzi reported how closely she had followed Jonathan Ben-Artzi's development, and she recalled that already in High School he objected to lectures by officers who came to the school to prepare children for military service. She witnesses how deeply he was moved when the family visited Verdun, France, and saw cemeteries with hundreds of thousands of mostly anonymous tombstones.
One of the "highlights" of the trial was the testimony of Colonel Schlomi Simchi, Chairman of the Conscience Committee. In the long examination, Col Schlomo Simchi said, for example: "I believe Jonathan Ben-Artzi actually believes himself that he is a pacifist". The questioning also made clear that the Conscience Committee does not have any criteria to judge whether a person is a pacifist not - and Col Simchi was also unable to explain how the came to the decision that Ben-Artzi is not a pacifist. It became obvious that the Committee members did not receive proper training, and that Col Simchi was not even able to give an example of a pacifist: "No. Maybe if I was interested in this - but I'm not so interested".
In the hearing on 10 August 2003, which was meant to be the summary of the prosecution's case, and of the defence, the Court cut short the discussion after the presentation of the prosecution, and recommended to the army to hear Jonathan Ben-Artzi again in the Conscience Committee: "We believe that in light of new materials [that have surfaced] ... the army draft board should consider the arguments for a re-hearing" of Ben-Artzi's claims. However, on 31 August 2003 the army draft board rejected the court's recommendation.
The defence responded to the prosecution on 8 October 2003, and made the following main points:
- Lack of professionalism by the Conscience Committee;
- The parameter of sincerity was not taken into consideration by the Conscience Committee, although the Committee recognised that Jonathan Ben-Artzi was not lying;
- The discriminatory practice between men and women conscientious objectors;
- The different and unfair treatment that Jonathan Ben-Artzi received compared to other conscientious objectors in front of the Conscience Committee.
The defence also argued that the order to enlist, given to a pacifist, is illegal, since it violates a person's dignity and fundamental human rights.
The verdict was given on 12 November 2003. The court ruled: "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."
"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."
The court refrained from sentencing, but rather recommended to reconvene the Conscience Committee and to hear Jonathan Ben-Artzi again. After a one-hour discussion between the judge, the prosecutor, and defence lawyer Michael Sfard behind closed doors, Michael Sfard commented: "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 them to be a pacifist. The court, a flesh of the army's flesh, is demanding from the military authorities to stop mistreating this fine 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."
On 8 January 2004, the Minister of Defence finally decided to accept the court's recommendation, and to reconvene the Conscience Committee. Jonathan Ben-Artzi was finally released until a new decision of the Conscience Committee has been reached.
Conclusions from the two trials
The two trials were very different in many aspects. Not only was the outcome very different, although in both cases the verdict was "guilty". While in the case of Jonathan Ben-Artzi the court refrained from sentencing and recommended a new hearing in front of the Conscience Committee - and the court also made it very clear that it believed Jonathan Ben-Artzi to be a pacifist - the outcome in the "trial of the five" was very different. Basically their conscientious objection was not recognised as conscientious objection, and was judged as "politically motivated". Consequently, all five were sentenced to a further 12 months in military prison.
What we can see here might be a new line - although in fact not that new. While "pure" pacifists might get exempted from military service - after a long process bordering on inquisition - those who link their conscientious objection, whether based on pacifism or not, to the present situation in Israel and especially in the Occupied Territories will be punished. The more they go public, and become a symbol of opposition to the occupation, the harder the punishment.
What we can observe here is a political motivated attempt to narrow the right to conscientious objection to absolute pacifists. This is in contradiction to international standards on human rights. In 1983, Asbjorn Eide and C.L.C. Mubanga-Chipoya submitted a first comprehensive report on the issue of conscientious objection to military service to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, as requested in resolution 14 (XXXIV) of 10 September 1981[]. For the purpose of this report, the concept of conscientious objection was seen as broader than merely pacifism. The report states:
By conscience is meant genuine ethical convictions, which may be of religious or humanist inspiration, and supported by a variety of sources, such as the Charter of the United Nations, declarations and resolutions of the United Nations itself or declarations of religious or secular non-governmental organizations. Two major categories of convictions stand out, one that it is wrong under all circumstances to kill (the pacifist objection), and the other that the use of force is justified in some circumstances but not in others, and that therefore it is necessary to object in those other cases (partial objection to military service)."[]Consequently, the recommendations of Eide/Mubanga-Chipoya included that "states should recognise by law the right to be released from service in armed forces which the objector considers likely to be used for illegal occupation of foreign territory"[].
This report is the background to the first United Nations Commission on Human Rights resolutions on conscientious objection: resolution 1987/46 of 10 March 1987, resolution 1989/59, and subsequent resolutions up to 2002/45 of 23 April 2002. These resolutions only refer to conscientious objection, without specifying any specific category of conscientious objection. It therefore needs to be concluded that the right to conscientious objection includes partial objection to military service, and is not limited to pacifist objection.
In the special case of Israel, the United Nations General Assembly resolution 33/165 of 20 December 1978 is important for its analogies. In this resolution, the United Nations General Assembly recognised "the right of all persons to refuse service in military or police forces which are used to enforce apartheid"[]in then South Africa. Not only is the case of the occupation of the Palestinian Territories very similar - with many UN resolutions declaring the occupation illegal - but also, especially in light of the above mentioned Eide/Mubanga-Chipoya report and subsequent UN Commission on Human Rights resolution, the question whether a conscientious objector is a pacifist or not becomes irrelevant.
More recent, the United Nations Commission on Human Rights Working Group on Arbitrary Detention dealt with some of the conscientious objectors' cases who were on trial recently. The Working Group on Arbitrary Detention ruled on the cases of Matan Kaminer, Adam Maor, Noam Bahat and Jonathan Ben-Artzi. The Working Group did not even get into an argument whether they are conscientious objectors or not - it simply came to the conclusions that "very much along the line of its reasoning in its Opinion No 36/1999, also bearing in mind its Recommendation No 2 on Detention of conscientious objectors (E/CN4/2001/14 paragraphs 91 to 94) the Working Group is of the opinion that if after an initial conviction the persons condemned exhibit, for reasons of conscience, a constant resolve not to obey the subsequent summons, penalties for disobedience have the same content and purpose - compel an individual to serve in the army. Therefore the second and subsequent penalties are not compatible with the principle of non bis in idem, as borne out of article 14, paragraph 7, of the ICCPR ... Moreover, repeated penalties for the disobedience to serve in the military would be tantamount to compelling someone to change his mind for fear of being deprived of his liberty if not for life, at least until the date at which citizens cease to be liable to military service".
It therefore has to be concluded that not only the court-martials were illegal according to international standards, arbitrary detention basically started with the second imprisonment for all six conscientious objections: for Jonathan Ben-Artzi from 4 September 2002 on, for Haggai Matar from 05 November 2002 on, Matan Kaminer from January 2003, Noam Bahat from January 2003, Adam Maor from January 2003, and Shimri Tzamaret from January 2003 on.
Eide/Mubanga-Chipoya dealt with the problems partial conscientious objectors face more than 20 years ago. They wrote: "For those whose objection is circumstantial or partial, it is necessary not only to prove that they have this conviction, but that they built it on some current considerations which are reasonably solid. They have to show some degree of probability that the purposes for which they are being inducted into the armed forces are likely to be illegitimate. They would have to demonstrate that these purposes or means and methods used would be illegitimate under international or national law. Since this in many cases will refer to future possibilities, convicting evidence may be difficult to provide. It is thus clear that the partial or circumstantial objector will face a much harder fight than an absolute pacifist to get his position acknowledged. Indeed, as earlier indicated, the former would be considered as breaking the established national law, in many countries...".
We can see this clearly when comparing the two court-martials. While the verdict in Jonathan Ben-Artzi's case says, "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 verdict in the trial of the five is completely different: "From analyzing the testimonies of the accused we have come to the conclusion that their acts are mainly motivated by the wish to extend opposition against government policy in the Territories and draw a stream of others to follow in their footsteps, either by refusing to enlist or refusing to serve in the territories."
We can see that in the verdict of the trial of the five the judge did not even consider the five defendants to be conscientious objectors, and in doing so he was even more backward than the Israeli Supreme Court in a ruling on selective refusal of reservists. In the case of David Zonshein, the Supreme Court ruled: "We assume that the selective objector - like his fellow 'full' objector - acts based on grounds of conscience. The point of departure in principle is that the selective objector's refusal to serve in a particular war or take part in certain action is based on true reasons of conscience, like the refusal of the full objector". However, in the trial of the five the judge was not even able to admit that Haggai Matar, Matan Kaminer, Noam Bahat, Adam Maor, and Shimri Tzamaret act out of reasons of conscience - he put down their conscientious objection as a matter of political opposition only.
In conclusion, War Resisters' International draws attention to its main concerns as presented in its report from February 2003. Unfortunately, they are still valid:
- The imprisonment of (male) conscientious objectors is a violation of the human rights to conscientious objection, derived from art 18 of the International Covenant on Civil and Political Rights.
- The common practice of repeated imprisonment of conscientious objectors for the same offence is in breach of article 14, paragraph 7, of the International Covenant on Civil and Political Rights.
- At present the ongoing attempt to force conscientious objectors into betraying or changing their convictions by means of escalating the tactic of repeated imprisonment is of major concern. This is in breach of article 14, paragraph 7, of the International Covenant on Civil and Political Rights, and contrary to Commission on Human Rights resolution 2002/45.
War Resisters' International therefore calls on Israel to immediately release Haggai Matar, Matan Kaminer, Noam Bahat, Adam Maor, and Shimri Tzamaret, and to exempt them - and Jonathan Ben-Artzi - from military service for reasons of conscience.
War Resisters' International also calls on Israel to stop the persecution of conscientious objectors - be they pacifists or partial conscientious objectors - and to deal with them according to international human rights standards, as spelled out in numerous resolutions by the Commission on Human Rights (most recently 2002/45).War Resisters' International, 15 February 2004
1War Resisters' International: Conscientious objection to military service in Israel: an unrecognised human right. Report for the Human Rights Committee in relation to Article 18 of the International Covenant on Civil and Political Rights. Revised version, 3 February 2003. Available at http://wri-irg.org/co/co-isr-03.htm
2War Resisters' International, 2003, page 9/10
3War Resisters' International: ISRAEL: Conscientious objectors to be court-martialed. 21 February 2003
4War Resisters' International, 21 February 2003 and 25 February 2003
5War Resisters' International, 25 February 2003
6War Resisters' International: ISRAEL: Conscientious objector Haggai Matar to be court-martialed, Uri Ya'acobi dischared, 26 February 2003
7War Resisters' International: ISRAEL: Conscientious objector Matan Kaminer to be court-martialed / first hearing tomorrow, 5 March 2003
8War Resisters' International: ISRAEL: Update on imprisonment of conscientious objectors. 7 April 2003
9Lily Galilee: Five Conscientious Objectors State Their Case in Military Court. Ha'aretz, Hebrew edition, 16 April 2003 (English translation by Reuven Kaminer, http://www.refuz.org.il/courtreport2.php)
10Lily Galilee: Ha'aretz, Hebrew edition, 16 April 2003
11See: Reuven Kaminer: Five Against the Occupation, 24 June 2003, http://www.refuz.org.il/courtreport3.php; Adam Keller: Speaking Trust to Power, 15 July 2003, http://www.refuz.org.il/courtreport4.php
12Adam Keller: Speaking Trust to Power, 15 July 2003, http://www.refuz.org.il/courtreport4.php
13Anat Matar: Summary of the Court Hearing, 18 September 2003, http://www.refuz.org.il/courtreport5.php; Adam Keller: "Punished - not for our disobedience but for our opinions", 20 October 2003, http://www.refuz.org.il/courtreport5c.php
14Anat Matar: Summary of the Court Hearing, 18 September 2003, http://www.refuz.org.il/courtreport5.php
15See, for example, at http://www.labournet.net/world/0306/ispa1.html
16Adam Keller: "Punished - not for our disobedience but for our opinions", 20 October 2003, http://www.refuz.org.il/courtreport5c.php
17Adam Keller, 20 October 2003
18Adam Keller: The Prosecutor and the Judge, 4 November 2003, http://www.refuz.org.il/courtreport6.php
19Adam Keller: Report for the Refuser Parents Forum, 12 November 2003, http://www.refuz.org.il/courtreport7.php
20Adam Keller: Doing things the hard way - the verdict of the Five, 16 December 2003, http://www.refuz.org.il/courtreport8.php
21Adam Keller, 16 December 2003
22Adam Keller: "Conscientious objectors - the worst of criminals", 23 December 2003, http://www.refuz.org.il/courtreport11.php; On the case of Gadi Eldazi Adam Keller reports: "And that didn't help either!" sounded the voice of Gadi Elgazi in person, from among the public benches.... "Let me complete the story of Gadi Elgazi" said Adv. Khenin. "He was indeed sentenced to a year in prison. But after half a year he was pardoned and discharged from the army by the Chief-of-Staff of that time, Rafael Eitan. There was no question of demanding again and again that he enlist, as it seems the military system proposes to do now. I can only wonder at it that they want to go far beyond the policies of Eitan, who had the name of being a strict disciplinarian."
23Adam Keller: Last Day in Court, email Gush Shalom, 05 January 2004 (the relevant parts are published in WRI's co-alert from 5 January 2004, http://wri-irg.org/news/htdocs/20040105a.html)
24International Federation for Human Rights/World Organisation Against Torture: Israel. Conscientious Objection Tackled by Military Justice. Ben Artzi Trial (7-10 October 2003), The Observatory No 376/2 December 2003
25War Resisters' International: ISRAEL: Newly imprisoned refuseniks, 16 August 2002, http://wri-irg.org/news/htdocs/16082002a.html
26War Resisters' International: ISRAEL: Again refuseniks in prison, 12 September 2002, http://wri-irg.org/news/htdocs/12092002b.html
27War Resisters' International: ISRAEL: Five refuseniks newly imprisoned, 8 October 2002, http://wri-irg.org/news/htdocs/08102002a.html
28War Resisters' International: ISRAEL: Two conscientious objectors sentenced to prison for 3rd and 4th time, 25 October 2002, http://wri-irg.org/news/htdocs/25102002a.html
29War Resisters' International: ISRAEL: Refuseniks in prison again, 14 November 2002, http://wri-irg.org/news/htdocs/14112002a.html
30War Resisters' International: ISRAEL: Sixth prison term for Jonathan Ben-Artzi and Uri Ya'acobi, 9 December 2002, http://wri-irg.org/news/htdocs/09122002a.html
31War Resisters' International: ISRAEL: Seventh prison term for Jonathan Ben-Artzi, 16 January 2003, http://wri-irg.org/news/htdocs/16012003a.html
32War Resisters' International: ISRAEL: Conscientious objectors to be court-martialed, 21 February 2003, http://wri-irg.org/news/htdocs/21022003a.html
33International Federation for Human Rights/World Organisation Against Torture: Israel. Conscientious Objection Tackled by Military Justice. Ben Artzi Trial (7-10 October 2003), The Observatory No 376/2 December 2003
34International Federation for Human Rights/World Organisation Against Torture: Israel. Conscientious Objection Tackled by Military Justice. Ben Artzi Trial (7-10 October 2003), The Observatory No 376/2 December 2003
35International Federation for Human Rights/World Organisation Against Torture: Israel. Conscientious Objection Tackled by Military Justice. Ben Artzi Trial (7-10 October 2003), The Observatory No 376/2 December 2003
36David Raban: Imprisoned Objectors Update, email, 06 June 2003
37International Federation for Human Rights/World Organisation Against Torture: Israel. Conscientious Objection Tackled by Military Justice. Ben Artzi Trial (7-10 October 2003), The Observatory No 376/2 December 2003
38A transcript of this session is available at http://wri-irg.org/news/2003/yba-simchi.htm
40Lily Galili: Military Court recommends re-hearing for draft objector. Ha'aretz, 10 August 2003, http://www.haaretz.com/hasen/spages/327966.html
41International Federation for Human Rights/World Organisation Against Torture: Israel. Conscientious Objection Tackled by Military Justice. Ben Artzi Trial (7-10 October 2003), The Observatory No 376/2 December 2003
42International Federation for Human Rights/World Organisation Against Torture: Israel. Conscientious Objection Tackled by Military Justice. Ben Artzi Trial (7-10 October 2003), The Observatory No 376/2 December 2003
43See the following reports: Adam Keller: The Ben Artzi Verdict. Court to IDF: Stop Mistreating Pacifists. 13 November 2003, http://www.counterpunch.org/keller11132003.html; Tovah Lazaroff: Court labels Ben-Artzi a 'pacifist', Jerusalem Post, 13 January 2003
44Adam Keller: The Ben Artzi Verdict. Court to IDF: Stop Mistreating Pacifists. 13 November 2003, http://www.counterpunch.org/keller11132003.html
45Adam Keller: The Ben Artzi Verdict. Court to IDF: Stop Mistreating Pacifists. 13 November 2003, http://www.counterpunch.org/keller11132003.html
46Matania Ben-Artzi: Jonathan Ben-Artzi is FREE for now, email, 8 January 2004
47Question of conscientious objection to military service. Report by Mr. Eide and Mr. Mubanga-Chipoya, 27 June 1983, E/CN.4Sub.2/1983/30
48Eide/Mubanga-Chipoya 1983, paragraph 21
49Eide/Mubanga-Chipoya 1983, paragraph 158
50United Nations General Assembly: Status of persons refusing service in military or police forces used to enforce apartheid. 20 December 1978
51United Nations Commission on Human Rights, Working Group on Arbitrary Detention: Opinion No 24/2003 (ISRAEL), 28 November 2003
52Eide/Mubanga-Chipoya 1983, paragraph 37
53David Zonshein vs IDF, HCJ 7622/02, paragraph 11
54War Resisters' International: Conscientious objection to military service in Israel: an unrecognised human right. Report for the Human Rights Committee in relation to Article 18 of the International Covenant on Civil and Political Rights. Revised version, 3 February 2003. Available at http://wri-irg.org/co/co-isr-03.htm