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'Refusenik' Reservists in Israel Make Their Case

Supreme Court hears arguments over whether individual soldiers may follow conscience and spurn duty in the Palestinian territories.

October 24, 2002|Laura King | Times Staff Writer

JERUSALEM -- Israeli military reservists who say conscience will not permit them to serve in the West Bank and Gaza Strip took their fight Wednesday to Israel's Supreme Court, where arguments by both sides raised painful questions about duty, patriotism and what constitutes moral warfare.

The case marks the first time the high court has agreed to weigh whether individual reservists have a right to mount a moral challenge to a broad range of Israeli army practices in the Palestinian territories through "selective refusal" -- that is, agreeing to perform their mandatory annual military service, but not inside the West Bank and Gaza.

Initially, lawyers for the reservists, who call themselves refuseniks, had intended to use the case as a vehicle to challenge the overall legality of Israel's military occupation of Palestinian areas. But they softened that position, believing that they had virtually no chance of persuading the justices to agree to what would amount to a sweeping condemnation of Israeli policy.

Instead, the refusenik camp hoped to set a more limited precedent, under which the army might be instructed to consider cases of conscience on an individual basis, much as it now rules on requests for deferral of military service, which are most often granted on religious grounds.

The army declined direct comment on the Supreme Court proceedings but has always maintained that allowing soldiers to opt out of duty they find distasteful would make it impossible for the military to function effectively.

"We don't choose our missions," said army spokesman Lt. Col. Olivier Rafowicz. "Our missions are decided by the government of Israel, and like in any democracy, the army is there to fulfill what the elected government has instructed it to do."

The timing of this case is sensitive, coming as the defense minister is locked in a confrontation with Jewish settler rabbis who have been urging soldiers to disobey orders to dismantle illegal settlement outposts.

The refuseniks -- some of whom are highly decorated officers with distinguished combat records -- say their case is fundamentally different, focusing as it does on whether soldiers should be called upon to perform actions that they believe violate the human rights of Palestinians, such as demolishing homes, uprooting orchards or endangering civilians by use of heavy weapons in densely populated areas.

"These are people for whom conscientious objection is not easy. These are not people who evade service," their attorney, Avigdor Feldman, told the justices in a lengthy and impassioned statement.

"These are not political people -- each of them stands on his own, saying, 'I experienced terrible things. I witnessed things that shocked me.' ... They saw soldiers firing into a Palestinian house, not knowing who was inside. They saw tanks shelling houses, not knowing who was inside. They are saying, 'I'm shocked, I cannot be a part of this. I'm a man whose conscience is speaking.' "

Arguing for the state, Aner Hellman said that the army investigates any alleged wrongdoing in the field and that individual soldiers could not take it upon themselves to judge whether established army policy was right or wrong.

"We are talking about a new kind of war here, a war against terrorism," he said. "Selective refusal is illegal. There's no Western democracy which recognizes it. Everyone knows how dangerous it can be, and Israel certainly isn't the place to experiment in trying it."

The justices listened attentively, interposing occasional short, sharp questions. As is normal practice in cases argued before the high court, attorneys wore long black robes like those of the judges, lending the occasion an air of formality.

The gallery was packed with spectators, many of them reservists or their families and friends. Eight reservists are represented in the case, but the refusenik movement has been gathering steam in recent months, and hundreds of others are in similar circumstances, closely watching the outcome of this case.

Nearly 500 reservists have signed a letter this year explaining why they will not serve in the West Bank and Gaza. Many of them have been removed from their units, and some have already served time in jail.

Amit Mashiah, 30, a staff sergeant and former commander in an elite combat unit, said the army assigned him to fence-painting duty at a dusty base near the Jordanian border after he signed the letter. He may eventually face prison.

He said he considers himself and other refuseniks to be patriots and believes Palestinian suffering can only backfire on Israel.

"The point is that tactically, refusing to serve there is exactly the right thing to do in order to protect the citizens of Israel," he said. "You're standing in a roadblock, seeing Palestinians who are sometimes quite old waiting for hours under the sun. You get your orders and you have to shut the roadblock, without knowing why. You have to look at these people's faces. They're not angry, even, just tired. How can this all end?"

Military service, universal in this country, is a crucial element in Israel's national ethic, and the reservists said it was difficult for outsiders to understand how excruciating a step it was to bring the case.

The justices recessed after hearing daylong arguments. The court could call the parties back to address particular points, or hand down a ruling in several weeks, attorneys said.

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