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Netanyahu's Nephew: Refusing To Fight In Israel

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  • Kasten, Kathy
    LEGAL COMMENTARY Netanyahu s Nephew: Refusing To Fight In Israel http://writ.news.findlaw.com/mariner/20021223.html ... REFUSING TO FIGHT IN ISRAEL By JOANNE
    Message 1 of 1 , Dec 26, 2002
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      LEGAL COMMENTARY
      Netanyahu's Nephew: Refusing To Fight In Israel
      http://writ.news.findlaw.com/mariner/20021223.html
      ----
      REFUSING TO FIGHT IN ISRAEL
      By JOANNE MARINER
      http://writ.news.findlaw.com/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
      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. <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
      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.
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