Netanyahu's Nephew: Refusing To Fight In Israel
- LEGAL COMMENTARY
Netanyahu's Nephew: Refusing To Fight In Israel
REFUSING TO FIGHT IN ISRAEL
By JOANNE MARINER
---- Monday, Dec. 23, 2002
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
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."
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. <http://laws.findlaw.com/us/380/163.htm> Seeger,
decided in 1965, and Welsh v. United
<http://laws.findlaw.com/us/398/333.html> 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 <http://laws.findlaw.com/us/401/437.html> 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
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.