The prosecutor and the judge

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.

Adam Keller wrote this report on the latest session in the court martial of “The Five” on behalf of the Refuser Parents Forum.

Related Links:

  • Refuser Solidarity Network