Surprising session in the court martial of "The 5"
The Prosecutor & The Judge
[The following is the report on the latest session in the court martial of "The Five" which Adam Keller wrote on behalf
of the Refuser Parents Forum. Gush Shalom supports the struggle of these courageous youngsters against the occupation.]
November 4, morning. It's nearing the end - this routine of coming again and again to the Jaffa Military Court, to which
we have grown accustomed in the past half year. The testimonies and cross-examinations are past. Today the prosecutor -
Captain Yaron Kostelitz, will make his final summation, trying his utmost to make the most heavy case and use the most
specious arguments against the five young guys in the dock. To offer solidarity to Haggai and Matan and Adam and Shimri
and Noam, we have come again: parents, friends and supporters, plus the faithful Ecumenical Accompaniers of the World
Council of Churches, and two young Italians doing internship at the Palestinian Medical Relief Committees at Ramallah, a
civilian service in lieu of service in the Italian Army - the kind of constructive alternative which the state of Israel
denies to its own conscientious youths.
We have become quite familiar with Kostelitz over the long-drawn out course of this court martial as well as Yoni Ben
Artzi's. He is quite predictable, and none of us is surprised at the basic philosophy expressed in nearly each sentence
he utters: "Military service is the highest duty and the highest privilege of a citizen, the chance to lay down his
life"; "Breaking the law is by definition an immoral act. Law is morality, morality as defined and encoded by the entire
society. Breaking the law is immoral , only obedience to law can hold society together". When Colonel Avi Levy, the
Presiding Judge, remarks that "Things are are not that clear-cut, not always black and white", Kostelitz mutters: "Oh,
it is black, very black indeed ..."
What caught us all by surprise - and apparently, also Kostelitz himself - were the frequent interruptions of his
narrative by Colonel Levy, which often seemed to deflate Kostelitz's best arguments just as he got into his swing.
"There is a difference between Conscientious Objection and Civil Disobedience. Conscientious Objection is a purely
personal act, carried out in silence, without publicity, aimed merely at getting exemption for one particular person
from acts which he finds intolerable, incompatible with his personal conscience. He does not seek to involve others,
does not ask anybody to follow or emulate him. Civil Disobedience is the complete opposite - a pernicious, seditious act
of a group which seeks maximum publicity, maximum complicity and participation in its effort to hamper the elected
government in carrying out its policies. And what have we here, in this group of five accused? They have all signed a
letter, the Shministim Letter, a letter signed by hundreds of youths and addressed to the Prime Minister, The Defence
Minister, the Army Chief-of Staff, and to the press. Yes, to the press, especially to the press! And what did they write
in that letter of theirs? Let me quote: 'We refuse to become the occupation's soldiers." The word 'refuse' is underlined
in the original, please note that in the minutes. Yes, 'We refuse to become the occupation's soldiers. When the elected
government tramples upon basic democratic values, we have no choice but to obey the dictates of our conscience and
refuse'. And here comes the crux, note this well: 'We call upon our contemporaries and upon the soldiers - whether
conscripts, reservists or career military personnel - to do as we do'. Need I add anything? These words speak for
themselves. These five are no Conscientious Objectors, they are agitators involved in Civil Disobedience, in trying to
overturn Constituted Authority, an attempt which cannot be tolerated..."
"Just a second" interjects Colonel Levy. "I feel that this distinction between Conscientious Objection and Civil
Disobedience might not be as watertight as you try to make it appear. Is it not reasonable to assume that a person who
considers the army's actions to be highly immoral, so much so that he prefers a lengthy prison term to becoming part of
that army, would naturally want also to persuade others not to perform these immoral acts? If a company commander orders
a soldier with high moral values to shoot a child, obviously the soldier will refuse. But he will likely also try to
persuade the rest of the company not to shoot the child. What, then, of your fine distinctions?"
Other lines of Kostelitz's argument got cut off even sooner. "If political refusal is legitimized, there will be chaos.
Soldiers will choose which orders to obey and which not, there will be total anarchy and the army will go to pieces. And
it will not stop with the army. Citizens will choose which laws to obey and which not, and always the lawbreakers will
claim they are acting according to their conscience. For example, if there is a special tax to finance the Separation
Fence, some people may refuse to pay it and justify this by their conscience. The very idea - everybody understands that
refusal to pay taxes is a political act, not an act of conscience..."
Colonel Levy: "Are you completely sure? Can there be no circumstances where refusal to pay taxes, too, may derive from
conscience? For example, if a governments decides upon "transfer" of the Palestinian population and imposes a special
tax to finance that operation, would a person strongly objecting the measure and therefore refusing to pay the tax be
acting from political motives or for reasons of conscience? Or another example: if the Palestinian Authority imposes a
special tax to finance the Hamas operations, and a Palestinian who is morally opposed to suicide bombings refuses to pay
it, would you consider his act a political or as an act of conscience?"
Later on, Kostelitz contended: "The army does recognize the freedom of conscience. It is willing to grant exemption to
pacifists - to pure pacifists, whose objection to military service in unadulterated by any other motives, who object to
war, all wars without exception, to all armies without exception. It is not willing to grant exemption to those who
object to a particular war, to a particular military operation, to a particular government policy. That is not
conscience, that is a political and ideological opposition, an illegitimate attempt to blackmail the government. The
government cannot tolerate such an attempt to flout its legitimate policies, or the country will be plunged into chaos
and anarchy..."
Col. Levy: "But is the case of the pacifist so much different? The political refuser challenges a specific government
policy, the policy of starting a certain war or holding on to a certain territory, and you consider that illegitimate.
But the pacifist also challenges government policy, in fact on a deeper and more fundamental level. Government policy,
in Israel as in all other states, is based on the assumption that use of force is acceptable under certain conditions,
that in some situations there could be a legitimate reason to go to war. The pacifist challenges that basic assumption
head-on. Yet you are willing to grant him exemption."
Kostelitz: "Well, in practical terms it is considered that the challenge offered by the political refuser is more
audacious, more undermining the government's authority. Also, it is assumed that the number of pacifists is not likely
to rise significantly, while the political refusers have the potential of growing enormously if not checked. And if that
assumption proves wrong, if the number of pacifists grows so much that the army starts experiencing significant manpower
problems, than the army might start conscripting them, too. Their exemption is not a right. Rather, it is a favor, a
privilege, a goodwill gesture which may be overruled if the needs of state security so dictate."
At the end of the session, spirits were more high then we expected them to be after a court day devoted to the
prosecution. But a veteran jurist, who had attended this court martial since the beginning, cautioned against reading
too much into Colonel Levy's interruptions and utterances. "We know that he takes this case - and the Ben Artzi case,
too - very seriously. He is aware that, one way or another, it will influence his future career, that every dot and
comma in the final verdict will come under close scrutiny from many quarters. He will think carefully about it and look
very closely into every aspect, of both the prosecution's case and the defence's. More than that it would be futile to
guess."
There is, anyway, not much longer to wait in suspense and speculation. . Next Tuesday (November 11), Adv. Dov Khenin
will deliver the defence's summations; the session will be preceded by a solidarity vigil outside the court. A day
later, Colonel Levy will deliver the verdict in the long standing case of Yoni Ben Artzi, the pacifist who was not
considered "pure." The verdict of the Five cannot be very far away, either.
Meanwhile, today's session had a positive side effect: the prosecution has introduced in evidence the text of the
special standing orders with regard to refusers. Until now, we were not at all sure that such orders existed in writing
at all, and could only guess and infer their content from the authorities' actual behavior. That might be quite useful
to a number of new of refusers who are right now starting their own intricate struggle. The latest news is of a girl
refuser who already spent initial 14 days behind bars and seems bound to spend much longer - the army being in a hurry
to prove that girls are not easily exempted either.