Breathtaking Days In The Military Court
Breathtaking Days In The Military Court
[The following is the report of two days in the military courtroom (Nov. 11 and 12): the defence summation of "The Five" and the verdict of Yoni Ben Artzi.]
For an hour we sat in the overcrowded and badly ventilated courtroom of the Jaffa Military Court, listening to presiding judge, Colonel Avi Levi, reading out a long verdict - hard to understand as he was rushing through the document. The text gave different and contradicting pointers as to the outcome.
"We have become convinced of the sincerity of Yoni Ben Artzi's pacifist convictions, and we are far from feeling that the Conscience Committee acted at its best when it rejected his request for exemption. The assertion that he wanted to avoid military service for personal convenience does not stand up to the proven record of his spending than a year behind bars, and to his rejecting offers of easy and comfortable military service made to him by various high officers. Nor do we accept the prosecutor's contention that his participation in the Yesh Gvul rally proves him to be a political refuser rather than a pacifist. A pacifist could have political opinions, too. Objecting to Israel's rule behind the Green Line is exactly the opinion which we would expect a pacifist to hold and we would have been surprised to find him holding a different one. In his testimony in this court, Colonel Simchi - head of the Conscience Committee - admitted to many shortcomings of the committee which he led. He is to be commended for his honesty. Nevertheless, this committee is the constituted authority entrusted with determining whether or not a person liable for military service would or wouldn't get an exemption. This court is not empowered to act as a court of appeal upon the Conscience Committee. Moreover, Ben Artzi appealed against the committee's findings to the Supreme Court, and was rejected. This court is certainly not a court of appeal upon the Supreme Court. We cannot accept the learned councel's assertion that the military authorities' conduct towards the accused was so grossly unfair as to render the order upon him to enlist illegal. It was a legal order, and we cannot but find him guilty of disobeying that legal order. Nevertheless, we strongly call upon the military authorities and the minister of defence to review the facts of the case and to reconvene the Conscience Committee to discuss once again the issue of whether or not Yoni Ben Artzi should get an exemption from military service."
Unlike the normal practice, the judges did not just disperse and end the session. Rather, as soon as he was finished, Colonel Levi summoned prosecutor Yaron Kostelitz and defending lawyer Michael Sfard and they remained closeted at his bureau for more than half an hour. Meanwhile, in the courtroom the TV cameras focussed upon Ben Artzi and his father Matanya, and all around intensive discussion and debate.
Some who followed this trial from the start were furious: "Damn this judge! After all that was revealed, how can he find him guilty!" But Yoni himself did not seem so disappointed. "I am as satisfied as I could have been in a military court. These three judges have gone out of their way to state that they believe me, and accept the sincerity of my pacifist convictions, and they rejected one by one all the counter- claims of the prosecution. They did have to find me guilty on disobeying the order. After all, I did disobey that order."
When finally emerging from the judge's bureau, and immediately pounced upon by the waiting journalists, Adv. Sfard was quite upbeat: "There is no question of discussing any punishment at this moment. The ball is now in the court of the army's Legal Department. They have to answer the very strong suggestion made by the court to reconvene the Conscience Committee. If I was in their place i would think twice before rejecting it. Despite the conviction they didn't come out of this trial very well. For the first time in the history of Israel, a military court - three judges acting unanimously - recognized a person in front of the m to be a pacifist. The court, a flesh of the army's flesh, is demanding from the military authorities to stop mistreating this fin young man, who has suffered enough, to grant him at last the exemption he should have gotten two years ago. Let's see what they will do." ***
What will the implications of this verdict be for the other five draft resisters, in whose own court martial we heard yesterday the defence summation?
Before the court started, some 150 people had turned up, quite impressive on a working day. Fortunately the rain had let up shortly before the demo began. Signs were unfurled: "Conscience in prison - stupidity in power", "Alternative Service to COs!", "Occupation is in the dock here!" and a group of youngsters started singing "Go to Hebron / Fight for Sharon / And come back in a coffin". Chen Gutman took the megaphone and read a poem written by Yehonathan Gefen some twenty years ago, before she herself was born: "We celebrate independence / On the backs of another people / We feel completely free / To kick them around and cut down their trees..." Will more generations have to grow up into the reality of ongoing occupation?
At 9.00 we filed in. Knesset Members Bronfman, Barake and Makhoul showed up, as did former KM Gozanski. Dr. Anat Matar, philosophy lecturer and the mother of Haggai, spoke from the aisle: "There are far too many of us today to fit into this courtroom, even though we dragged extra benches in. Please go out at 10.30 and give your place to one of those waiting outside." From the dock where The Five sat, Matan Kaminer turned his head and smiled: "Thank you all for coming!" Then the judges entered.
Adv. Dov Chenin, lawyer and veteran political and environmental campaigner, started his well-constructed exposition. "Last week in this courtroom, my colleague of the prosecution went on at length about the danger of anarchy and chaos which would ensue from tolerating Conscientious Objection. I defy him to produce even a single historical example of a state or society which was disrupted by the recognition of the Freedom of Conscience. There is none. But many are the examples of horrors which came upon societies and states by an excess of Non-conscientious Obedience.
The experiments of Milgrom and other social psychologists have shown that a large part of humanity is capable of tolerating and taking part in evil acts - not necessarily out of cruelty or sadism, but simply out of conformism and acceptance of authority. Those who defy authority and stick to their own deeply-held perception of right and wrong are a vital lubricant to society.
We need but look at the kind of person which our ancestors, who wrote the Bible, held up as an ideal. Look at te story of Moses. He only survived babyhood because two Hebrew women and an Egyptian princess conspired to break the Egyptian law according to which little Moses should have been drowned in the river together with the other babies. Growing up, Moses killed an Egyptian overseer who was beating a Hebrew slave, and had to flee into the desert as an outlaw. Then, he came back as an agitator fomenting dissent an rebellion among the slaves. Later still, this contentious person was debating with God Himself and often got the best of the argument.
A bit later in history, in the first half of the Nineteenth Century, there was a person who took Moses as her example. A woman named Harriet Tubman, who regularly went into the south to take slaves away from the plantations and smuggle them to freedom. There was a price on her head, but since her nickname was "Moses" the pursuers did not look for a woman. By the terms of her time, she was a criminal. She deliberately broke the laws duly passed by Congress and enforced by the Supreme Court of the United States. She was a thief, who stole from the slave-owners a lot of valuable property. Yet today who of these people would be considered the criminal?
Yet, you may well ask: what has all this to do with this court? This is a court of law, it can only render judgement according to the law of the land, not according abstract moral or philosophical principles. But that is exactly my contention: the Freedom of Conscience, this vital spark which is so crucial to human society, is indeed recognized as part and parcel of Israeli law. My colleague of the prosecution, who spoke at length on obscure points of military procedural law, made hardly any mention of the Constitutional Revolution which occurred in the Israeli judicial system in 1992, when the Knesset adopted the Basic Law on Human Liberty and Dignity.
As Judge Aharon Barak, President of the Supreme Court, has shown, from that moment on the basic human rights have become a fundamental norm of Israeli law, a norm to which all state institutions and agencies must conform. All state institutions and agencies, that also includes the army.And, as Judge Barak and his colleagues pointed out on numerous occasions, among these rights, and not the least of them, is the Freedom of Conscience.
This does not mean, of course, that every person can take any action which comes to mind, and claim that it deserves to be defended by the Freedom of Conscience. It is up to the person to prove that said action does indeed derive from conscience - that is, from deep and fundamental convictions about right and wrong, convictions so deep and fundamental that by breaking them you would break the person. But once a person proves this point - and it is my contention that the five young men standing trial here did amply prove that their refusal to enlist in an army of occupation does originate from such deeply held convictions - then that person's act is protected as part of the Freedom of Conscience.
In our legal system, no right is absolute - neither the Freedom of Speech nor the Freedom of Movement, and also not the Freedom of Conscience. When a person is suspected of a crime, the police may arrest him and put him in a cell, which evidently violates his liberty. But the police may not do so arbitrarily. There is a law which defines exactly when they may arrest a person, how long they can hold him and under what conditions. The same with any other right. It may be infringed in order to preserve another right or a value upheld by society - but as the Basic Law states and the Supreme Court reiterated, such an infringement of a basic right can only be justified when it is according to a specific law and when there is a near certainty of its being needed for the sake of preserving another value.
In the entire presentation made last week by my colleague of the prosecution, not the slightest mention was made of any of this. No reference to a law by which the military authorities may infringe the Freedom of Conscience, no proof that such infringement was needed with near certainty. It is not the prosecutor's fault that such a huge gaping hole was left in the argument which he presented. He did his work conscientiously, faithfully representing the position and practice of the military authorities. It is simply that those authorities have not yet realized that a constitutional revolution has occurred, and that it applies to them, too. Still, this hole does gape, and through it the five accused must walk out free." Adv. Chenin sat down.
"The court thanks the prosecution and defence for the well-thought out presentations which they made to this court. This is a very complicated case, which the court will have to deliberate closely. Don't expect a verdict in less than several weeks."
Report made by Adam Keller for the
Refuser Parents Forum