{"id":52844,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/refusing-to-fight-in-israel.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"refusing-to-fight-in-israel","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/refusing-to-fight-in-israel.html","title":{"rendered":"Refusing To Fight In Israel"},"content":{"rendered":"\n
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REFUSING TO FIGHT IN ISRAEL<\/h1><\/td>\n <\/tr>\n

By JOANNE MARINER<\/h2><\/a><\/td>\n <\/tr>\n

Monday, Dec. 23, 2002<\/td>\n\n <\/tr>\n <\/table>\n

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.<\/p>\n\n

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.<\/p>\n\n

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.<\/p>\n\n

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.<\/p>\n\n

The Religious Go To Yeshiva While the Secular Go To Prison<\/b><\/p>\n\n

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.<\/p>\n\n

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.<\/p>\n\n

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.<\/p>\n\n

“It’s a punishment that could be repeated infinitely,” Ben-Artzi’s mother was quoted as saying in the French newspaper Lib\u00e9ration<\/i>. “He’s even been told that it could go on for fifty years this way.”<\/p>\n\n

\n\nAlthough 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.<\/p>\n\n

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.<\/p>\n\n

Selective versus Total Refusal to Serve<\/b><\/p>\n\n

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.<\/p>\n\n

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.<\/p>\n\n

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.<\/p>\n\n

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.”<\/p>\n\n

Judicial Action<\/b><\/p>\n\n

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.<\/p>\n\n

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.<\/p>\n\n

In United States v. Seeger<\/i><\/a>, decided in 1965, and Welsh v. United States<\/i><\/a>, 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.<\/p>\n\n

But in Gillette v. United States<\/i><\/a>, 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. <\/p>\n\n

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. <\/p>\n\n

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.<\/p>\n\n

The Right to Resist <\/b><\/p>\n\n

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.<\/p>\n\n

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. <\/p>\n\n

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.”<\/p>\n\n

The Courage to Resist<\/b><\/p>\n\n

Under current conditions, it may be a long time before the Israeli government recognizes a right to refuse military service. <\/p>\n\n

A soldier’s job is often dangerous, but in Israel, at present, resisting military duties may require considerably more courage than performing them.<\/p>\n\n\n\n\n<\/span>\n\n\n

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\n\n\n<\/a>\nJoanne Mariner is a human rights attorney based in New York. The opinions expressed in this article are her own. Her other columns on international human rights issues may be found in the archive of her work on this site.\n\n\n

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