29 February 2004

On Gaza, Jerusalem, the Fence, Ambassador Francke, "Tabloid boom", Deliberate Intent, Conscientious Objection, and More


Dear friends and colleagues,

Thank you for your questions, queries and concerns regarding recent developments. I will address them one to one, and will also reflect on some other issues that came to my attention during the past month.

Gaza

People have contacted me to inquire about Prime Minister Sharon's recent statements and plans regarding Gaza, and whether they coincide with my repeated calls since 2001 to implement Gaza First. Well, hold your horses and celebrations. Sharon's version of the Plan is quite different from mine, and the timetable for its execution is unclear.

According to the Sharon version, 17 Gaza settlements will be evacuated, moving the 7,500 residents living there into the State of Israel. Sharon also intends to evacuate another three settlements in Samaria. Sharon made clear that the intent is "to move settlements from places where they cause us problems or places where we won't remain in a permanent arrangement," adding that he has already ordered evacuation plans to be drawn up that include the technical, financial and legal issues at stake in such a withdrawal (Haaretz, February 4, 2004).

The publication of the plan caused controversy across the political spectrum. On the right, there are threats to bring down the government as well as rhetoric about values being betrayed. On the left, there is little faith in the prime minister's statements, although Shimon Peres is obviously excited with the renewed prospects of returning to the government. The Palestinian Authority also has voiced skepticism, attributing Sharon's plans to a public relations campaign prior to his upcoming trip to Washington. After all, trusting Sharon is a tricky thing. The person is notorious for voicing contradictory opinions, even in the very same week, designed to please everybody and anybody. You don't know to whom you should believe, to Sharon of Monday, or to Sharon of Thursday. "Political pragmatism", Sharon would call it. This zigzag conduct undermines trust and credibility, this is at time when Sharon is investing time and energy to counter all sorts of allegations of corruption, and taking of bribes.

Sharon has made promising statements before and has done little to follow them up. Having pronounced all cautionary words, it does seem that Sharon is aware that Jews and Arabs are reaching parity in the combined populations of Israel and the occupied lands, and that only by withdrawing from Palestinian territory can Israel remain a Jewish and democratic state. However, his conduct and plans undermine most of the gains that I thought the Gaza First Plan could garner.

Noam Chomsky wrote in his NY Times article of February 23, 2004: "it… seems likely that Israel will transfer to the occupied West Bank the 7,500 settlers it said this month it would remove from the Gaza Strip. These Israelis now enjoy ample land and fresh water, while one million Palestinians barely survive, their meager water supplies virtually unusable. Gaza is a cage, and as the city of Rafah in the south is systematically demolished, residents may be blocked from any contact with Egypt and blockaded from the sea."

I hope Sharon will prove him wrong and will not make this stupid move of transferring people from one problematic place to another. All the gains that he could have achieved by evacuating Gaza will be lost if he will do this. All the credit he could have gained in the international arena would fade away. Is Sharon oblivious to the role of Israel among the nations?

Furthermore, I spoke of recognition of a Palestinian state, inviting Chairperson Arafat to establish an independent sovereign state in the Strip while Israel closely scrutinizes the region’s security. I explained that with sovereignty comes accountability. I also spoke of the need not to suffocate Gaza economically, and of coordinating the move with Dahlan so as to ensure that the Strip will not fall into the hands of the Hamas. Sharon shows little concern for the Palestinians, not realizing that it is an Israeli interest to behave in a decent manner to the Palestinians, not to ignore them, to assist them in achieving statehood viability. The gains in the international arena that I indicated as resulting from the Gaza First Plan as I was depicting it are evaporating when we witness Sharon's conduct, like an elephant in a china store. He definitely needs some good PR people around him. What poor communication. What a shame. For the first time he is willing to do something different from killing and retaliation, something positive and constructive to change the course of history for the better, but Israel receives very little appreciation. Sharon is doing too many mistakes. We can smell the end of his reign.

The next elections will be in either 2005 or 2006. Sharon will need to practice his survival skills to get there, and then I am not sure whether he will be the Likud leader. The number of his enemies is increasing steadily.


Jerusalem – city of misery

On January 29, 2004 there was yet another atrocious attack on Jerusalem. I usually start the day by listening to CNN. Jerusalem was the opening item. I could not understand how the anchors could smile and even laugh a minute after speaking of the incident, when showing an unflattering photo of James Brown the singer. Not all people are sensitive. Maybe they are accustomed. Maybe it is their defence mechanism. Possibly the geographic remoteness. I don't know. But I felt bad looking at their smiling faces. In Israel this could not happen. The faces are grim as the event.
On February 22, 2004 the city of tears and misery was shocked by a further attack. A Palestinian suicide bomber killed himself and at least eight other passengers aboard a crowded bus in the center of Jerusalem a day before the International Court of Justice was to start hearings about the West Bank barrier that Israel says it needs to block such attacks.
The rush-hour blast wounded more than 50 people. More agony and sorrow.

Voice from the past

I am preparing for the course that I am now teaching, The Theatre of Terror, and came across the following hypothesis, expressed in 1981: One of the major goals of Palestinian terror is to promote violent responses from Israeli authorities that will be violent enough to anger Israel’s allies, erode domestic support for the Israeli government, and demonstrate that the Israelis are not the “good guys” in this conflict (“The Unholy War,” ABC news, 20/20, April 2, 1981).

The goal has been achieved.


The Fence

People continue to ask me what I think about the fence. I reiterate what I said in the past: I am a man who believes in bridges, not in fences, who tries to focus on what unites people rather than on what separates them. Consequently I opposed the idea of the fence for quite some time. I changed my mind in March 2002, after the vicious attack on Hotel Park in Netanya on the eve of Passover, our Thanksgiving, and after hearing our generals' estimates that the fence could block some eighty percent of the attacks on Israel. After exhausting attempts for peace, a new phase had opened: divorce. The fence is needed to practice the divorce idea. We can't live like this, in constant anxiety and fear. However, the implementation of the fence is wrong. The fence should have been constructed along the Green Line so as to create a just two-state-solution. Prime Minister Sharon had and has a different idea in mind: greater Israel as possible, and tiny Palestine. The result is more bloodshed, children crying (as is the case in every nasty divorce), and the Hague Court of Justice.


Ambassador Rand Rahim Francke

Rand Rahim Francke, the Iraqi Ambassador to the U.S. came to address quite a full auditorium at Hopkins. She has been residing in the U.S. since 1980. Talking about U.S. foreign policy and Iraq, she began her lecture by detailing Saddam's atrocities against the Iraqi people, comparing him to Hitler and Stalin. Ms. Rahim Francke showed gruesome photos of mass graves and the results of Ali Chemical's campaign against the Kurds: men, women, children lying dead in the streets. Ambassador Rahim Francke estimated that the Saddam regime murdered some 2 million Iraqis since the 1970s.

Ambassador Rahim Francke described the shattered Iraqi economy since 1984, the result of Saddam military dictatorship and his excessive investment in security and war campaigns. But then she said that today, "under American freedom", every house has at least one TV dish, and that the Iraqi people buy computers and discover the Internet.

Ambassador Rahim Francke asserted she was reluctant to speak on security issues in Iraq but nevertheless said that those who are attacking American soldiers are terrorists because they primarily kill Iraqis in those attacks, claiming that those terrorists come from outside Iraq to kill Americans and Iraqis.

Ambassador Rahim Francke said that Iraqis debate on the American presence in Iraq, and that some describe this situation as occupation, using this word "occupation". But there is no doubt that "100 percent of Iraqis are happy with the American occupation".

Sometimes, more often during question time, when she did not read from her notes, Ambassador Rahim Francke was referring to the Iraqi people by using the word "they".

I stepped out of the auditorium somewhat confused. I wondered whether I heard the Iraqi Ambassador to the U.S. or the American Ambassador to Iraq.


"Tabloid boom"

In a country where broadsheet has always been associated with quality, The Independent and The Times have sparked a revolution in the United Kingdom by launching tabloid versions of their dailies. The editors of the two papers will face off at the World Editors Forum later this year on the implications for newsrooms of the "tabloid boom" that is occurring world-wide.

In the quest to attract commuters and other readers who favour a compact size, The Independent launched a tabloid-size newspaper with the same content as its broadsheet late last year. It kept the broadsheet in many markets because it didn't want to lose readers who were satisfied with it.

The Times quickly followed suit. And though putting out identical content in different formats means extra work for the newsroom and other departments, the results have been spectacular -- both newspapers have reported circulation gains in the tens of thousands with the new editions.

I hope that more broadsheet will follow. The innovation of the broadsheet newspaper was probably done by a person who had long arms, sharp eyes, quick hands to fold the paper, who never used public transportation, enjoyed sitting comfortably on the back seat of his car while his chauffeur takes him from one place to another, keeping silent. Well, most people are not that fortune. It is sometimes amusing to watch other people straggling to read a broadsheet on a bus or subway, covering their neighbour with the newspaper, and trying hard to fold the paper without making a complete mess of it. It is less amusing when you are the reader. Common sense does prevail. Sometimes it is hesitant, sometimes it takes time, but there is no point to keep this uncomfortable format just to distinguish oneself from the "yellows". Quality of content makes the difference, not the format. As we say in Hebrew: Don't look at the vase but in what there is in it.


Travels

I continue my travels in North America, this month to Galveston, Texas, where I delivered The Samuel G. Dunn Lectureship in Medicine and the Humanities, at the Institute for the Medical Humanities, University of Texas Medical Branch. I also gave two talks at Case Western University: one at the Department of Bioethics on "Euthanasia in the Netherlands: The Policy and Practice of Mercy Killings", on my forthcoming book; the other at School of Law on "The Scope of Tolerance", presenting the book I am working on now.

On March 5, noon, I am invited to present my Euthanasia in the Netherlands at the Dept. of Clinical Bioethics, NIH. Colleagues and friends in the DC area are invited.

With my family we went to Philadelphia, a great and interesting city. We visited all the constitution/independence/liberty sites and museums and learnt a lot about the American history. Philly is a must for anyone interested in US history, a fascinating place.

While in Texas it was brought to my attention that the Republican Party is Gerrymandering the borders of Texas and other states, thereby increasing their power and bring the downfall of the Democratic Party. I understand they do their best to do this within the confines of the law. After the 2000 elections in Florida, the Democrats will need a very strong case to win an appeal against Gerrymandering in this Supreme Court.

I thanks Bill Winslade, Dena Davis and Jessica Berg for their kind invitations and hospitality.


Deliberate Intent

Since 1991 I have been teaching free speech issues. For years I have argued that no censorship should be introduced on books. I changed my mind in 1999, when I first heard of the Rice v. Paladin case (No. 96-2412, 128 F.3d 233 (November 10, 1997).

For those who are not familiar with the issue, it concerns a publication by Paladin Press how to become a successful hit-man. Essentially, it is a manual instructing how to kill people for money, and to get away without punishment.

I now completed Rod Smolla's account of the affair. His book, Deliberate Intent (NY: Crown, 1999), is written for lay people. It is not a masterpiece, and could have benefited from a thorough editorial that would leave some parts of the book on the floor. However, it is an interesting book written by a First Amendment scholar, who accommodated his views on free expression as he became involved in the case. Those interested in free speech issues and struggle with the issue of boundaries may consider reading it, as well as the court judgment.


Mazal Tov and Congratulations

Books

M.N.S. Sellers, Republican Legal Theory: The History, Constitution and Purposes of Law in a Free State (Houndmills: Palgrave, 2003).
Albert R. Jonsen, Mark Siegler and William J. Winslade, Clinical Ethics (NY: McGraw-Hill, 2002).
John Lantos, The Lazarus Case: Life and Death Issues in Neonatal Intensive Care (Baltimore: Johns Hopkins University Press, 2001).

Please consider ordering these books to your respective libraries.


Conscientious Objection

Roberto Ricci, my tireless Italian friend who devotes all his immense energies to better this world, had sent me the following report. I know that some people on the listserve are interested in this topic.
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Conscientious objection in Israel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. In practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III. International human rights norms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
IV. Ben Artzi trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. The long fight against enlistment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. 08.10.2003 hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. The ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
V. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Report
ISRAEL
CONSCIENTIOUS OBJECTION TACKLED BY MILITARY JUSTICE
Ben Artzi Trial
(7 - 10 October 2003)
MISSION OF OBSERVATION
n°376/2- December 2003
THE OBSERVATORY
for the Protection of Human Rights Defenders
L’OBSERVATOIRE
pour la protection
des défenseurs des droits de l’Homme
EL OBSERVATORIO
para la Protección
de los Defensores de los Derechos Humanos
International Federation
for Human Rights
17, passage de la Main d’Or
75011 Paris - France
World Organisation
Against Torture
8, rue du Vieux-Billard
BP 21, 1211 Genève 8 - Suisse
FIDH / P A G E 2

The mission

Very much concerned about the situation of the conscientious
objectors arbitrarily detained in Israel for refusing to serve in
the Army and following up the tremendous debate that has
taken place over the right to conscientious objection deriving
from the right to freedom of conscience (universally
recognized as stated in Article 18 of the Universal Declaration
for Human Rights), the Observatory for the protection of
human rights defenders (FIDH and OMCT joint venture) gave
mandate, together with Avocats Sans Frontières/ Belgique, to
Mrs. Benedetta Odorisio, a political scientist, to observe and
report on the last hearing in the military trial of Jonathan Ben
Artzi on October 8, 2003.
The mission was carried out in Israel by Benedetta Odorisio
from 7 to 10 October 2003.

Executive summary

Jonathan (Yoni) Ben Artzi, a 20-year-old university student,
has been in detention since 8 August 2002, when he refused
to enlist for the military service. Yoni considers himself as a
pacifist and total conscientious objector and therefore objects
to serve in the army, in any capacity. He requested, however,
that he be given the possibility of performing a civil service.
After completing seven detention sentences, totaling 196
days, over 6 months, his case has been brought before the
court martial in Jaffa.

The trial has reached the final stage. On 8 October 2003,
defence counsel Adv. Michael Sfard argued that Yoni's had a
sincere belief in pacifism and had a right to disobey an illegal
military order. The last hearing took place after the Court had
heard the testimonies of Yoni's sister, a prison mate, and
Israeli Defence Forces (IDF) representatives who had been
responsible for his enlistment. At the end of the hearing, the
Court failed to set a date for announcing its verdict as it was
scheduled to. It is now expected by the end of November.
Yoni is not the only Conscientious Objector (CO) who is being
court martialled. The Military Court in Jaffa is also hearing the
cases of Noam Bahat, Adam Maor, Haggai Matar, Shinri
Tsameret and Matan Kaminer, who are among more than 300
"Shministim," or high school seniors, who refuse to serve in
military forces involved in the occupation of Palestinian
Territories. Unlike Yoni they are selective COs, a category of
COs that is peculiar to Israel. They are not against war per se,
but against the occupation war.

This is the first time since the 1970's that COs have been
brought before a court martial. Previously, the usual practice
was to avoid recognizing COs while exempting them from
military service on other grounds after brief prison terms. This
practice, however, seems to be changing. None of them has
been dismissed like many other COs (total or selective) on
other grounds; they have already spent from 11 to 18 months
in military prisons and their trials are not over yet. It is
believed that this new strategy may be the result of the sharp
increase in the number of young refuseniks (those refusing to
serve in the Occupied Palestinian Territories), which may
become a threat to the image of the Israeli army and policy.
Concern has been expressed about the violation of the right
to freedom of conscience, thought and religion enshrined in
article 18 of the International Covenant on Civil and Political
Rights (ICCPR), to which Israel is party. In its General
Comment 22, the Human Rights Committee (the expert body
overseeing the implementation of the Covenant by member
States ) stated that "the Covenant does not explicitly refer to
a right to conscientious objection, but the Committee believes
that such a right can be derived from article 18, inasmuch as
the obligation to use lethal force may seriously conflict with
the freedom of conscience and the right to manifest one's
religion or belief. When this right is recognized by law or
practice, there shall be no differentiation among
conscientious objectors on the basis of the nature of their
particular beliefs; likewise, there shall be no discrimination
against conscientious objectors because they have failed to
perform military service."

The use of military courts to try COs is also source of concern.
Recommendations by human rights experts of the Sub-
Commission for the Promotion and Protection of Human
Rights indicate that civil courts should deal with similar cases
to ensure impartiality and independence.


ISRAEL CONSCIENTIOUS OBJECTION TACKLED BY MILITARY JUSTICE

I. Introduction

A. Legislation

Military service and conscientious objection in Israel are
regulated by the Defence Service Law of 1986. It requires all
Israeli citizens and residents to perform military service, three
years for men and two years for women. Section 36(1) of the
Defence Service Law gives the Minister of Defence a general
discretion to exempt anyone from military service. The
Minister of Defence has used his powers to exempt general
categories of people as well as specific individuals. Israeli
citizens of Palestinian origin have been exempted from
compulsory military service since the establishment of the
State of Israel. This exemption was withdrawn from male
members of the small Druze and Circassian communities in
1956 and Druze and Circassian men have been subject to
conscription since then.1

The law also provides for various types of exemption from the
military service, discriminating between men and women.
Women are exempted:
a. on the ground of religious conviction, in which case no
inquiry is needed;
b. on reasons of conscience, in which case the woman
requesting the exemption will have to present her case to a
Committee composed of civilians.

While the 1986 law explicitly recognizes conscientious
objection for women, it does not contain a similar provision for
men. The law provides for the exemption from the military
service of anyone "for reasons connected with the
requirements of education, security, settlement or the
national economy, or for family or for other reasons". It is
under "other reasons" that the category of conscientious
objectors (CO) falls. Conscientious objection is therefore
admitted but is not recognized as a right.

On 20 December 2002, the Supreme Court passed an
important judgment on the Zonschein case reaffirming the
possibility of granting exemptions from military service for
reasons of conscientious objection. It noted that "all agree
that exemptions for conscientious reasons are included in
those 'other reasons', which allow exemption from regular or
reserve service." It refers to total conscientious objection only.
In fact, it ruled out the possibility of selective objection (that is
the exemption from service deriving from an objection to a
specific war or military operation) for reasons of national
security. The Court held that "the phenomenon of selective
conscientious objection would be broader than 'full' objection,
and would evoke an intense feeling of discrimination
'between blood and blood'. Moreover, it affects security
considerations themselves, since a group of selective
objectors would tend to increase in size. Additionally, in a
pluralistic society such as ours, recognising selective
conscientious objection may loosen the ties, which hold us
together as a nation. Yesterday, the objection was against
serving in South Lebanon. Today, the objection is against
serving in Judea and Samaria. Tomorrow, the objection will be
against vacating this or that settlement. The army of the
nation army may turn into an army of different groups
comprised of various units, to each of which it would be
conscientiously acceptable to act in certain areas, whereas it
would be conscientiously unacceptable to act in others. In a
polarised society such as ours, this consideration weighs
heavily. Furthermore, it becomes difficult to distinguish
between one who claims conscientious objection in good
faith and one who, in actuality, objects to the policy of the
government or the Knesset, as it is a fine distinction -
occasionally an exceedingly fine distinction - between
objecting to a state policy and between conscientious
objection to carry out that policy."

The Defence Service Law does not provide for an alternative
form of civil service for conscientious objectors. COs are
allowed to carry out functions in the army not requiring the
use of weapons or are completely exempted from performing
any service. But in no case are they given the possibility of
performing a civilian national service. Such an option is
reserved for religious Jewish women only.

In order to determine who is a genuine CO and who is just
trying to avoid the military service for reasons of personal
comfort, the Minister of Defence set up, within the Israeli
Armed Forces (IDF), a Conscientious Objection Committee
(hereafter "Committee" or "CC"), in 1995. This move was
considered necessary after the State of Israel adhered to the
International Covenant on Civil and Political Rights in 1991.
The discrimination existing between men and women is again
evident. While women are reviewed by an entirely civilian
Committee, the Conscience Committee for male COs was
composed solely of five army representatives. Recently it was
decided to include a civilian. Since its inception, the
Conscience Committee for male COs has been working
without any formal legal status, with no precise definition of
who is a CO. No official document of its methods of work has
ever been published.

Conscientious objection is not considered to be a civil issue,
and trials against COs are dealt with by military tribunals.
Under Israeli law, every Israeli citizen becomes an IDF
member as soon as he/she receives the draft. Anyone who
refuses to enlist is thus subject to court martial.

B. In practice

Although a number of Israeli youngsters drafted every year
declare themselves to be conscientious objectors (total or
selective), almost none of them is recognized to fall in that
category by the CC. A number of them are forced through
psychological threats to enlist in the army. According to
testimonies of COs, members of the IDF draft board and of
the CC try to scare them or accuse them of being traitors in
order to convince them to join the army. Those who decide not
to give in, usually receive short consecutive prison terms (14
to 28 days). If they endure some three or four consecutive
prison terms, they are usually brought before an
"Incompatibility Committee", which usually gets rid of the
stubborn COs by declaring them unfit for the military service.
Another option often used is to exempt applicants on grounds
of physical/mental health.

In fact, it seems that any pretext is preferred rather than
accepting that a growing part of the Israeli society opposes in
principle any war or the specific occupation of Palestinian
territories.

Not surprisingly, only on few occasions has the Committee
recognized applicants' conscientious objection. People who
have been questioned by the Committee have had the clear
impression that, rather than detecting elements of a genuine
conscientious objection, its members tried to find a possible
alternative way for the conscript to serve the army.

The scarce statistical data available indicates the anti-COs
policy practiced in Israel. In 8 years, from 1995 until 2003,
there have been 148 18 years old applicants for
conscientious objection, of which only 9 exempted (of those,
3 were exempted this year). If we do not include 2003,
between 1995 and 2002 (7 years), out of 137 applicants,
only 6 were exempted, i.e. 4,3% of the applicants.2

Officially, the number of COs in Israel is extremely low.
However, the number of draftees who are exempt from the
military service is rising, following an increasing opposition
among many young conscripts and soldiers to participate in a
war which they consider illegal.

In the 1980s members of the army who refused to serve in
the occupation of Lebanon formed a movement called "Yesh
Gvul" (There is a limit). It is the eldest "Israeli peace group,
campaigning against the occupation by backing soldiers who
refuse duties of a repressive or aggressive nature."3

In recent years a number of new movements have emerged.
In 2001, the Shministim (hebrew for "high-school") youth
refusal movement was founded by 62 groups of young
political activists who refused to serve the occupation and
war crimes committed by the Israeli Forces in the occupied
territories. In 2002, a second letter addressed to Prime
Minister Sharon was signed by over 300 students.

In January 2002, new reserve combat officers and soldiers of
the IDF complained openly against the occupation war and
refused to fight outside Israel's pre-1967 borders "in order to
dominate, expel starve and humiliate an entire people".
Called "Courage to refuse", they gathered over 500
signatories and their initiative was publicly supported by over
300 Israeli academics.4

The latest initiative was undertaken in September 2003 by a
group of 27 Air Force pilots. In an open letter submitted to
their Chief, but intended for the political authorities, they
declared their refusal to take part in Air Force attacks against
civilian population centers resulting from the ongoing
occupation which they said is corrupting all of Israeli society.
At present, for the first time since the 1970s, a number of
conscientious objectors are been tried by a court martial:

- Jonathan Ben Artzi, a pacifist or total conscientious objector,
- Noam Bahat, Adam Maor, Haggai Matar, Shinri Tsameret and
Matan Kaminer, who declared themselves against the war of
occupation and are therefore regarded as selective
conscientious objectors,
- Dror Boymel, another selective CO who is being tried
separately.

The Universal Declaration of Human Rights and the
International Covenant for Civil and Political Rights do not
explicitly mention the right to conscientious objection to
military service. However, in 1993, the Human Rights
Committee, the body of experts monitoring the
implementation of the Covenant, adopted General Comment
N. 22 on the right to freedom of thought, conscience and
religion, and affirmed that the right to conscientious objection
to military service can be derived from article 18. Paragraph
11 states that :

"Many individuals have claimed the right to refuse to perform
military service (conscientious objection) on the basis that
such right derives from their freedoms under article 18. In
response to such claims, a growing number of States have in
their laws exempted from compulsory military service citizens
who genuinely hold religious or other beliefs that forbid the
performance of military service and replaced it with
alternative national service. The Covenant does not explicitly
refer to a right to conscientious objection, but the Committee
believes that such a right can be derived from article 18,
inasmuch as the obligation to use lethal force may seriously
conflict with the freedom of conscience and the right to
manifest one's religion or belief. When this right is recognized
by law or practice, there shall be no differentiation among
conscientious objectors on the basis of the nature of their
particular beliefs; likewise, there shall be no discrimination
against conscientious objectors because they have failed to
perform military service. The Committee invites States parties
to report on the conditions under which persons can be
exempted from military service on the basis of their rights
under article 18 and on the nature and length of alternative
national service."5

In its concluding observations published after reviewing the
second Israeli periodic report in August 2003, the Committee
expressed its concern about the law and criteria applied and
generally adverse determinations in practice by military
judicial officers in individual cases of conscientious objection
(art. 18). It recommended that "the State party should review
the law, criteria and practice governing the determination of
conscientious objection, in order to ensure compliance with
article 18 of the Covenant."6

The Commission on Human Rights has been considering the
issue of conscientious objection to military service since
1985, based on the work carried out in the Sub-Commission.
Resolution 1998/77 is particularly important, since it:
- Defined the right of everyone to have conscientious
objections to military service as a legitimate exercise of the
right to freedom of thought, conscience and religion, as laid
down in article 18 of the Universal Declaration of Human
Rights and article 18 of the International Covenant on Civil
and Political Rights;
- Recognized that persons performing military service may
develop conscientious objections;
- Called upon States that do not have such a system to
establish independent and impartial decision-making bodies
with the task of determining whether a conscientious
objection is genuinely held in a specific case, taking account
of the requirement not to discriminate between
conscientious objectors on the basis of the nature of their
particular beliefs;
- Reminded States with a system of compulsory military
service, where such provision has not already been made, of
its recommendation that they provide for conscientious
objectors various forms of alternative service which are
compatible with the reasons for conscientious objection, of a
non-combatant or civilian character, in the public interest and
not of a punitive nature;

The use of military tribunals has also been thoroughly
considered by the Sub-Commission on the Promotion and
Protection of Human Rights. In his first report to the Sub-
Commission, Mr. Emmanuel Decaux examines the
administration of justice through military tribunals, analysing
the jurisdiction ratione persone, temporis and materie. His
recommendation N.11 focusing on conscientious objection to
military service reads as follows:
"Conscientious objector status should be determined under
the supervision of an independent and impartial civil court
when the 'conscientious objectors' are civilians. When an
application for conscientious objector status is made during
the course of military service, it should not be punished as an
act of insubordination or desertion but considered in
accordance with the same procedure."7

The reasoning behind it, is that military tribunals are both
judges and parties in a case of military conscientious
objection and cannot, therefore, uphold the principles of
independence and impartiality.

The detention of COs has also been considered by the
Working Group on Arbitrary Detention (WGAD) set up by the
Commission on Human Rights to monitor the issue worldwide.
In its 2001 report to the Commission, the WGAD noted that:
"....conscientious objection - which has its theoretical basis in
the freedom of conscience and thus of opinion - gives rise,
particularly in countries that have not yet recognized
conscientious objector status, to repeated criminal
prosecutions followed by sentences of deprivation of liberty
which are renewed again and again.

The question before the Working Group was whether, after an
initial conviction, each subsequent refusal to obey a
summons to perform military service does or does not
constitute a new offence capable of giving rise to a fresh
conviction. If it does, deprivation of liberty, when applied to a
conscientious objector, is not arbitrary, provided that the rules
governing the right to a fair trial are respected. If it does not,
detention must be considered arbitrary as being in breach of
the principle of non bis in idem, a fundamental principle in a
country where the rule of law prevails, as born out by article
14, paragraph 7, of the International Covenant on Civil and
Political Rights, which states that no one shall be liable to be
tried or punished again for an offence for which he has
already been finally convicted or punished. This principle is
the corollary of the principle of res judicata.

Notwithstanding the above, repeated incarceration in
cases of conscientious objectors is directed towards
changing their conviction and opinion, under threat of
penalty. The Working Group considers that this is
incompatible with article 18, paragraph 2, of the
International Covenant on Civil and Political Rights, under
which no one shall be subject to coercion, which would
impair his freedom to have or adopt a belief of his choice.
Accordingly, the Working Group recommends that all
States that have not yet done so adopt appropriate
legislative or other measures to ensure that conscientious
objector status is recognized and attributed, in accordance
with an established procedure, and that, pending the
adoption of such measures, when de facto objectors are
prosecuted, such prosecutions should not give rise to more
than one conviction, so as to prevent the judicial system
from being used to force conscientious objectors to change
their convictions."8

8. Report of the Working Group on Arbitrary Detention to the Commission on Human Rights, E/CN.4/2001/14, para. 91-94.

A. Background

Jonathan (Yoni) Ben Artzi, is a-20-year-old maths and physics
university student who has been in detention since 8 August
2002, after he refused to enlist for the military service. Yoni
considers himself a pacifist and therefore objects to serve in
the army in any capacity.

In an interview with the Guardian newspaper, he explained
that from the time he was old enough to be familiar with the
army, he has known he would never wear its uniform. But he
did not really know why until he went to Verdun, where more
than 700,000 men died in the First World War. "I always knew
I wouldn't go into the army but I came to realise why when I
was 14. We visited France and some of the battlefields and I
saw the rows and rows of graves," he says. "Then I realised the
stupidity of it. So many lives sacrificed and they didn't really
know what they were fighting for. They were never told the
truth."9

Yoni requested, however, that he be given the possibility of
performing a civil service for the three-year length of the
national service. The Israeli Defence Forces (IDF) countered
with a proposed alternative service in the army that would not
require the use of weapons and the obligation to wear the
uniform.

The IDF refused to recognize his pacifism and brought him
before a military court. According to the Israeli law, he may be
sentenced up to three years in prison for his conscientious
objection. Meanwhile, pending a decision by the court, Yoni
spent almost 200 days in harsh military detention, and since
February 2003 has been held in "open detention" in a military
camp, in nothern Israel.

B. The long fight against enlistment

The recruitment process for the army started in 1999 when,
still a school student, Yoni was requested to pass an army
test. Yoni had already stated his intention not to enlist. March
2001 should have been the initial date for his military service.
The Conscience Committee (CC) first reviewed his case in May
2000. No decision was taken on the veracity of Yoni's
objection to serve the army, and the Committee decided to
postpone his enlistment to July 2001.

In May 2001, the CC summoned Yoni again and rejected his
request after a brief conversation. Following an appeal, in July
2001 the Supreme Court, sitting as an administrative court,
decided that the Committee should review the case and that
the claimant be allowed to have a lawyer and witnesses.
In November 2001, for the third time, Yoni appeared in front
of the CC defended by a lawyer. 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 Yoni could not
conform to the military system.

Yoni Ben Artzi appealed the Committee's decision to the
Supreme Court on the grounds that the CC lacked expertise
and had ignored written testimonies. In May 2002, the Court,
deciding on the form and not on the substance, ruled that the
Committee had acted according to the law.

On 8 August 2002, Yoni began the first of seven consecutive
prison sentences at military prison N. 4. As soon as he was
released, he would receive a new draft order, refuse to serve
the army, and be sent to prison again.

On 17 February 2003, IDF decided to bring Yoni before a court
martial for refusing to serve in the army. At the claimant's
request to have a lawyer, the hearing was postponed to 19
February. On that same day, after 196 days of detention, Yoni
is put in "open detention" in a military base in Northern Israel,
meaning that he is obliged to reside there, with the
authorization to leave it every third weekend.

On 11 March 2003 the first hearing took place at the Jaffa
Military tribunal, with military judge Colonel Avi Levi
presiding. The Court was supposed to hear the charges
against Yoni. However, the defence raised the objection of
"double jeopardy", claiming that the consecutive prison
sentences are contrary to the fundamental principle
according to which one cannot be prosecuted for the same
crime twice (non bis in idem principle). The trial was therefore
delayed until 13 April 2003, when the Court informed the
defence that the objection of "double jeopardy" was rejected
without giving any reasoning. The following day, 14 April, the
prosecutor, Captain Yaron Kostelitz, proceeded to read the
formal indictment of denial of obeying a military order issued
against Yoni. He held that Ben Artzi is not a true conscientious
objector, but rather an "ideological" one since he opposes to
serve in the army because of his political views. Thus, he
could not be considered a real pacifist but only a selective CO.
Meanwhile, on 8 April 2003, Ben Artzi's defence counsel, Adv.
Michael Sfard and Adv. Avigdor Feldmann, on behalf of other
conscientious objectors, appealed to the Supreme Court that
cases against COs should be heard in a civil court, because,
as people refusing to serve in the army, they could not be
charged with the crime of disobeying a military order. They
should rather be charged with violating the duty to enlist,
which is a civil duty, and their cases should therefore heard by
a civil court. On 15 April, the petition was rejected, the
reasoning being that there are no substantive differences
between procedures of civil and military courts, both are
professional and impartial, and military courts' decisions can
be appealed to the Supreme Court. Ultimately, a civilian court
would, therefore, rule over the case.

On 28 May 2003, the Jaffa Military Court heard evidence from
the Military Drafting Unit Commander, Colonel Dvora Hassid,
on the fact that Yoni Ben Artzi was given a military order to
respond to duty and that he refused to obey this order.
Colonel Hassid gave evidence that Yoni was given various
alternatives to serve within the military system in tasks
compatible with his beliefs, including serving in a military
hospital, or not serving in a combat unit within the military.
However, he refused all alternatives on the basis that they still
involved service for the army. He opposed any military service
that he believed would support the "militarisation of the
State", and that he would be prepared to serve alternative,
non-military civilian service during his necessary three years
compulsory State service. During her testimony, Colonel
Hassid made it clear that her only duty was to make sure by
any means available that the youth enlist and it was not her
duty comprehend their conscience.

The Prosecutor attempted to deny Ben Artzi the right to
present his oral evidence regarding his beliefs, arguing that
the military court should simply uphold the previous decision
of the Conscience Committee. However, Adv. Sfard
emphasised that the High Court did not reject outright Ben
Artzi's claim to be a pacifist and specifically said that: "we
perhaps would have ruled differently from the Conscience
Committee but we did not consider it our role to interfere." The
military judge allowed Ben Artzi to give direct evidence of how
his pacifist beliefs were formed from an extremely young age.
Ben Artzi gave detailed evidence of his beliefs, stating that his
objection to the military, military service and militarisation of
the State did largely derive from his political ideology and
beliefs as they developed from a young age as well as specific
incidents. However, he considered that his total conscientious
objection or pacifism were separate from his political ideolog.
Having a distinct political ideology should not mean that he
cannot be considered to also hold genuine beliefs of total
conscientious objection or pacifism, he said.10

On 23 June 2003, the Court heard the testimony of Yoni's
sister and of Yoni Yechezkel - a refuser who shared prison
terms with his namesake. Ruti Ben-Artzi, 12 years older
than her brother, reported on how closely she had followed
his development. She recalled that already in the high
school he objected to lectures by officers who came to the
school to prepare children for military service. Nor did he
want to take part in school outings to such places as the
Mount Herzl National Cemetery. She witnessed how deeply
he was moved when the family visited Verdun, France and
saw cemeteries with hundreds of thousands of mostly
anonymous tombstones. 'How futile, the Germans and
French killing each other, and now they use both the same
currency.' She saw that he came back from France a
determined pacifist.11

Yoni Yechezkel, a refusenik who declared to be close to
Buddhist beliefs and ready to make all kind of compromises
(even seeing a psychologist) rather than serving the army, and
that, surprisingly, was the first applicant ever to be recognized
as a CO. The defence questioned, once again, the objectivity
and professionalism of the CC's work.

On 29 July 2003, the Court heard the testimony of Colonel
Schlomi Simchi, Chairman of the Conscience Committee.
During a long cross examination, the witness replied often in
an embarrassing manner, showing and acknowledging his
complete lack of interest in and knowledge of the issue of
conscientious objection. He admitted that the had never read
any publication on this subject and he knew very little. Despite
that, he and the other Committee members felt confident
enough to make their own decision without taking into
consideration the opinions of two experts provided by the
defence.

Colonel Simchi started by saying the Committee had never
exempted any conscript from the military service for reasons
of conscience. With vague replies, the witness stated that in
the Committee's views: Yoni was not pacifist, since he was an
argumentative and conflictive person, and the Committee
believed that he was acting out of his comfort and interest,
rather than pacifism. He noted that Yoni could not explain
logically the reasons for his pacifism, which proved that he
was not a true pacifist. Rather obscurely, Colonel Simchi
argued that Yoni was sincere in declaring his pacifism, but the
real issue was that he thought he was a pacifist, but in reality
he did not know he was not.

The defence succeeded in pointing out that the Committee
had neither a clear definition of who a pacifist is nor defined
work procedures, which explains in part the low figure of
young conscripts who apply each year.

The defence then sought the witness's views on the huge
difference existing between Israeli men and women COs, and
between conscientious objection in Israel and other parts of
the world. The witness was not aware of any existing
statistical data on the matter and could not see their
relevance. To the argument that in Israel 95 % of the
applications were rejected, while in other countries an
average of over 90% were accepted, he replied that the
Committee has nothing to learn from other countries.
On 10August 2003, the trial went on with the summation of
the Prosecutor. Unexpectedly, after the defence had started
with its summation, the Court recommended that the
Conscience Committee review Ben Artzi's case, on the
grounds of the "new circumstances" that had arisen. In fact,
a few months earlier, a civilian had joined the CC.
On 31 August, the IDF draft board rejected the court's
recommendation, arguing that the convening of a new
hearing would set a negative precedent, making it possible for
other COs to appeal to the CC's decision.

C. 08.10.2003 hearing

On 8 October 2003 the last hearing before the final verdict of
Yoni's trial took place before the court martial in Jaffa. The
whole hearing was devoted to the reply by the defence to the
accusations brought up by the prosecution. During three
hours the defence articulated the following points to prove the
sincerity of Yoni's pacifism:

i. Lack of professionalism by the Conscience Committee (CC),
charged with determining whether Yoni is a real pacifist
deserving exemption from the military service, based on
reasons of conscience. The defence underlined that the CC's
members were not knowledgeable about the issue of
conscientious objection and had not any written, clear
policy/criteria guiding the CC's work;

ii. The parameter of sincerity was not taken into
consideration. Although the CC chairman recognized that Yoni
was not lying, he thought that Yoni was making a mistake in
believing he was a pacifist;

iii. If Yoni was accused of not being able to defend his position
in a systematic and logical way, it is not for his lack of
conviction, but more probably due to the fact that pacifism is
more an instinctive principle than a rational one, as stated by
pacifist Albert Einstein;

iv. The discriminatory practice between men and women
conscientious objectors. The defence submitted statistical
data on female and male conscientious objectors recognized
by the Israeli army, proving an indirect discrimination. 95% of
women COs applicants are accepted every year, compared to
5% of men COs applicants;

v. Different and unfair treatment that Yoni received compared
to other conscientious objectors. The defence cited the
example of a conscientious objector who had agreed to do his
military service in the army by carrying out civilian duties role
and was exempted. He then questioned the real criteria
behind the CC's decisions.

After providing to the court the elements to prove Yoni's
genuine conscientious objection qualifying for the exemption
from the military service, as provided for in the 1986 Defence
Service Law, Yoni's lawyer proceeded to analyze the legal
consequences of Yoni's refusal to enlist in the army. The
defence argued that the order to enlist given to a pacifist is
illegal since it violates a person's dignity and fundamental
rights. Therefore, disobeying such an order is legal. Adv.
Michael Sfard underlined how, out of necessity, one can
violate a value in order to preserve another one.

D. The ruling

On 12 November 2003, the military court in Jaffa read out its
verdict in Jonathan Ben Artzi's trial, recognizing him as being
a pacifist whilst convicting him for failing to follow his draft
orders by acting on his beliefs.
The Military court, voiced by presiding judge Colonel Avi Levi,
stated as follows:

"We have become convinced of the sincerity of Jonathan Ben
Artzi's pacifist convictions, and we are far from feeling that the
Conscience Committee acted by 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 more than a year behind bars...
...A pacifist can have political opinion 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.
...The Conscience Committee is the constituted authority
entrusted with determining whether or not a person liable for
military service would or would not get an exemption. This
court is not empowered to act as a court of appeal upon the
Conscience Committee...

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." Therefore, Yoni Ben Artzi is now waiting to appear before the Conscience Committee once again (no date being set for the moment). Meanwhile, he is still standing in open detention.

For the first time after many years, the IDF has decided to
bring conscientious objectors before a court martial, rather
than finding an alternative way out. Despite the fact that Yoni
has a very strong case, there is a feeling that his case is being
used to set an example.

As a veteran CO noted in an article, "it appears, at this point,
that the army continues to pursue the Ben Artzi case mainly
for reasons of prestige, since the case, which has received so
much media attention cannot be dropped inconspicuously."12
So far, Yoni spent 16 months in detention for his pacifist
beliefs. As reported by a journalist of the Guardian, he has
spent more time in prison "than any soldier jailed in recent
times for the "illegal killing" of an innocent Palestinian.13
As he was found guilty by the military court in Jaffa, Jonathan
Ben Artzi is allowed to appeal before a higher military court
and then to the Supreme Court. Should it be necessary to
appeal to the Supreme Court, Yoni might have to stay in open
detention, possibly for another year. His lawyer is waiting for
the next potential examination by the Conscience Committee
before taking any further legal step.

By refusing him the right to conscientious objection, Israel is
violating the right to freedom of thought, conscience and
religion enshrined in article 18 of the International Covenant
on Civil and Political Rights to which Israel is party.
The Israeli system set up to determine who is a conscientious
objector has proved to be inefficient and unprofessional. In
accordance with the recent recommendation by the Human
Right Committee14, the authorities "should review the law,
criteria and practice governing the determination of
conscientious objection".

The fact that the case is being heard by a military court is also
reason for concern. Although no binding norm exists on the
issue, the doctrine developed in international human rights
fora has recommended that similar cases be dealt with by
civil courts in order to ensure that independence and
impartiality are truly respected.

The Observatory for the protection of Human Rights defenders and ASF/B support the recommendation by the
Human Rights Committee that the Israeli Government review the law governing conscientious objection. In line with the
Human Rights Commission resolutions, the new legislation should:
a. recognize the right to conscientious objection as a
legitimate exercise of the right to freedom of thought,
conscience and religion as contained in article 18 of the
International Covenant for Civil and Political Rights;
b. eliminate the discriminatory procedures existing for men;
c. review the composition and methods of work of the
Conscience Committee so as to ensure that it acts impartially
and independently;
d. establish a true alternative civil service which is not of a
punitive nature;
e. inform all persons affected by military service about their
right and the procedures to follow to acquire conscientious
objector status.

Activities of the Observatory

The Observatory is an action programme, based on the conviction that
strengthened co-operation and solidarity among defenders and their
organisations, will contribute to break the isolation of the victims of
violations. It is also based on the necessity to establish a systematic
response from NGOs and the international community to the repression
against defenders.

With this aim, the priorities of the Observatory are:
a) a system of systematic alert on violations of rights and freedoms of
human rights defenders, particularly when they require an urgent
intervention;
b) the observation of judicial proceedings, and whenever necessary, direct
legal assistance;
c) personalised and direct assistance, including material support, with the
aim of ensuring the security of the defenders victims of serious violations;
d) the preparation, publication and diffusion at a world-wide level of reports
on violations of human rights and of individuals, or their organisations, that
work for human rights around the world;
e) sustained lobby with different regional and international
intergovernmental institutions, particularly the United Nations, the
Organisation of American States, the Organisation of African Unity, the
Council of Europe and the European Union.
The activities of the Observatory are based on the consultation and the cooperation with national, regional, and international non governmental organisations. With efficiency as its primary objective, the Observatory has adopted flexible criteria for the examination and admissibility of cases that are communicated to it. It also targets action based interpretations of the definition of “Human Rights Defenders” applied by OMCT and FIDH.
The competence of the Observatory embraces the cases which correspond to the following “operational definition” : “Each person victim or risking to be the victim of reprisals, harassment or violations, due to its compromise
exercised individually or in association with others, in conformity with international instruments of protection of human rights, in favour of the promotion and realisation of rights recognised by the Universal Declaration
of Human Rights and guaranteed by several international instruments”.
An FIDH and OMCT venture - Un programme de la FIDH et de l’OMCT - Un programa de la FIDH y de la OMCT
The Emergency Line
La Ligne d’Urgence
La Línea de Urgencia
e-mail
observatoire@iprolink.ch
tel / Fax
FIDH
Tel : + 33 (0) 1 43 55 20 11
Fax : + 33 (0) 1 43 55 18 80
OMCT
Tel : + 41 22 809 49 39
Fax : + 41 22 809 49 29
International Federation
for Human Rights
17, passage de la Main d’Or
75011 Paris - France
World Organisation
Against Torture
8, rue du Vieux-Billard
BP 21, 1211 Genève 8 - Suisse
THE OBSERVATORY
for the Protection of Human Rights Defenders
Director of the publication: Sidiki Kaba, Eric Sottas
Editor: Antoine Bernard
Authors of this report: Benedetta Odorisio

With my very best wishes, as ever,
Rafi

My last communications are available on http://almagor.blogspot.com
Earlier posts at my home page: http://lib-stu.haifa.ac.il/staff/rcohen-Almagor