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CounterPunch
December
26, 2002
Refusing to Fight in Israel
by JOANNE MARINER
Benjamin Netanyahu's nephew is in jail. Having
refused to serve in the Israeli Defense Forces--an army whose
actions, he believes, betray its name--this twenty-year-old relative
of Israel's ultra-nationalist foreign minister is currently in
detention at Military Prison Number Four.
Jonathan Ben-Artzi is against the Israeli
army's occupation of the West Bank and Gaza Strip, a stance that
places him at the opposite end of the political spectrum from
his uncle. He is also a pacifist who opposes war as a matter
of principle.
Ben-Artzi has already spent more than
four months behind bars because he is unwilling to compromise
his strongly-held political and moral beliefs. Two weeks ago,
he was sentenced to a sixth consecutive prison term for refusing
to enter the military.
Israel, which imposes military duty as
a mandatory obligation, does not recognize conscientious objection
as a valid reason for avoiding conscription. Nor, to date, have
the Israeli courts pressed for any reform of this illiberal policy.
The Religious
Go To Yeshiva While the Secular Go To Prison
The Israeli government's unwillingness
to accommodate conscientious objectors cannot be explained purely
by the country's need for soldiers. There are many ways to escape
military service in Israel, some of them dishonest, others sanctioned
by the government. Thousands of Israeli men are exempted from
military service because they study in religious academies. Religious
young women are granted the possibility of performing civilian
duties in a school or hospital.
Secular Israelis with moral and political
objections to military action enjoy no such options. Ben-Artzi
claims that he offered to perform three years of civilian service
instead of the usual three years in the army, but the government
refused his proposal.
Instead, he has been offered the possibility
of indefinite imprisonment. Each time Ben-Artzi finishes one
sentence for refusing conscription, he is called up again by
the army and, after a brief procedure before a military judge,
is sentenced anew.
"It's a punishment that could be
repeated infinitely," Ben-Artzi's mother was quoted as saying
in the French newspaper Libération. "He's even been
told that it could go on for fifty years this way."
Although Ben-Artzi has already spent
more time behind bars than any other Israeli draft resister,
he is not the only one to submit to incarceration in preference
to military service. According to Amnesty International, some
180 conscientious objectors and refuseniks--Israeli army reservists
who are unwilling to serve in the Occupied Territories--have
been jailed in the past 26 months. As their imprisonments attest,
military judges are quite willing to mete out prison terms to
punish those who would challenge the country's conscription rules.
In Israel, especially now, when the government
is prescribing military solutions to the country's problems,
to make a principled objection to military action is a provocative
act of defiance.
Selective versus
Total Refusal to Serve
Although their moral objections have
several points of overlap--and their treatment by the government
is the same--the reasoning of the reservist refuseniks and of
the conscientious objectors is significantly different. The reservists
who refuse to serve in the Occupied Territories pose what is
paradoxically a less sweeping, and yet more threatening challenge
to the Israeli government's current policies.
The reservists are, after all, perfectly
willing to serve in their country's military forces, and to perform
duties that many thousands of Israeli soldiers are currently
performing. What they are not willing to do, however, is take
part in what they view as an illegal and abusive occupation.
As the reservists explain in a public
letter that explains their actions: "We shall not continue
to fight beyond the 1967 borders in order to dominate, expel,
starve and humiliate an entire people." Their refusal to
serve, in other words, directly implicates Israeli policy in
a way that a blanket rejection of military service could never
do.
Unlike conscientious objectors, the reservists
do not reject the military per se, but only its current role.
Indeed, they present themselves as the guardians of military's
legitimate functioning, claiming that "the price of Occupation
is the loss of [the Israeli Defense Forces'] human character."
Judicial Action
In separate cases, both Jonathan Ben-Artzi
and eight army reservists have brought suit in the Israeli courts
to try to secure their right to refuse military service on the
grounds of conscience. To date, no such case has been successful,
although an Israeli Supreme Court ruling in the reservists' suit
is still pending.
Analogous judicial decisions from the
United States suggest that the reservists, with their selective
opposition to military service, have even less chance of success
than do the full-fledged conscientious objectors. The U.S. cases
date from the Vietnam War era, a time when the United States
had a military draft, and when it sent conscripted youth to fight
a war that, like the Israeli occupation of Palestinian territories,
was seen by many as unjust, illegitimate, and abusive.
In United States v. Seeger, decided in
1965, and Welsh v. United States, decided five years later, the
U.S. Supreme Court stretched an existing statutory right of objection
to military service on religious grounds so that it encompassed
conscientious objections based on purely moral and ethical grounds.
While the two rulings formally hinged on the interpretation of
a statute, it was obvious that they were guided by deeper principles.
At least one Supreme Court justice, moreover, thought that the
constitutional underpinnings of the decisions were impossible
to avoid.
But in Gillette v. United States, decided
the following year, the Court reached its limit. That case involved
two putative conscientious objectors who did not oppose all wars,
but rather objected to the Vietnam war in particular: an "unjust
war," in their view.
Showing only slight skepticism, the Court
recited the government's argument that opposition to a particular
war would undermine democracy because it would involve second-guessing
the government's judgment. The conscientious objector, argued
the government's legal team, would necessarily weigh the same
"political, sociological and economic factors" that
the government had already assessed in deciding to engage in
the war.
Without fully adopting these concerns,
the Court found that they were sufficient to justify the statute's
distinction between a refusal to participate in all war, and
a refusal to participate in particular wars.
The Right to
Resist
Israelis seeking to secure an individual
right to refuse military service on the grounds of conscience
might also look to international human rights law for support.
Most fundamentally, soldiers have a recognized duty to refuse
to follow orders to commit gross human rights abuses. Military
discipline, when serious abuses are at issue, is of subordinate
concern.
The right's broader grounding in autonomy
and human dignity has also been recognized. In 1987, for example,
the U.N. Commission on Human Rights formally concluded that conscientious
objection to military service is "a legitimate exercise
of freedom of thought, conscience and religion," a position
that it reaffirmed several times subsequently.
In 1995, the commission adopted a resolution
calling on all U.N. member states "to enact legislation
and to take measures aimed at exemption from military service
on the basis of a genuinely held conscientious objection to armed
service."
The Courage
to Resist
Under current conditions, it may be a
long time before the Israeli government recognizes a right to
refuse military service.
A soldier's job is often dangerous, but
in Israel, at present, resisting military duties may require
considerably more courage than performing them.
Joanne Mariner
is a human rights llawyer in New York. This article was originally
published by Writ
FindLaw. She can be reached at: mariner@counterpunch.org.
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