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Doing things the hard way—the verdict of The Five
Gush Shalom, Israel
December 16, 2003
The courtroom at the Jaffa Military Court had never been so overcrowded.
Special benches had been dragged in, filling the aisle and leaving hardly
any room for passage. Activists, family members and journalists crowded
into every available corner (there were four TV crews, who were chased
out after the judges came in) and still as many as were in had to wait
outside. At long last, the verdict in the trial of Noam Bahat, Matan
Kaminer, Adam Maor, Haggai Matar and Shimri Tsameret was going to be
After the Yoni Ben-Artzi verdict, nobody really expected a "not guilty."
Clearly, they would be found guilty-as-charged of the formal aberration of
"not obeying an order", but against our better judgement we were hoping
that these boys' convincing moral stand did impress the court. But the
Colonel Avi Levy who read the verdict seemed a different person from the
presiding judge who had exhibited signs of moderation throughout the
While starting out by accepting the defence's contention that the Freedom
of Conscience is a right under Israeli basic law and not just a privilege
granted at the army's pleasure, the verdict proceeded to give it such an
interpretation as to nullify its practical value. In essence, the verdict
endorsed the military authority's policy and the judicial justifications for it
as presented by the prosecution: exemption from military service should
be granted only to pacifists and nobody else. The judge seemed less
concerned with the ideological differences and more with practical ones:
pacifists in his view are a small group which does not challenge government policies but just seek personal salvation and, so he stated, are not likely to grow significantly.
But what the court dealt with here was far more serious: "We recognize
that the accused do feel moral and ideological revulsion about taking part
in an army which according to their belief is perpetrating manifestly
immoral acts. But the act of refusal is derived not only from this revulsion
but also—and perhaps mainly—from the wish of the accused to change
public opinion in general, to effect a change in the views and in the
behavior of those who are about to go into the army and of conscripts and
reservists, and finally to cause a change in government policy and bring
about an end to the occupation."
Colonel Levy went into long and complicated legal as well as
philosophical arguments reaffirming over and over again that this was a
threat not to be tolerated, and that everybody must be made to go into the
army and share equally the risk to life in defence of the country (no
mention of the tens of thousands ultra-Orthodox who don't risk their lives
while receiving generous allowances for studying in religious seminaries).
"There exists no legally established alternative civilian service in
Israel, so the military authorities cannot be blamed for failing to offer one as an
alternative to the five accused. But it is the position of this court that
even if it existed, it would not have provided a fitting answer for the case
of these five. The requirement of equality is not that citizens just give
three years of service, but that they all undergo the same risk to life"
(skipping over the fact that most soldiers in a modern army are non-
combatants . . .).
As the reading ended, we sat there in stunned silence. Only Reuven
Kaminer, grandfather of Matan, got up and left the court shouting
"Shame!" But outside the court there was the solid phalanx of press
photographers and TV cameras, and behind them the activists who had
not been able to enter. When the five emerged they got a hero's welcome
of wild cheers and prolonged clapping. Then there developed a scene
surely unequaled in the decades that this building has been used as a
military court; something halfway between a political rally and a press
The chanting "Occupation is Terror—the Refuser is a Hero" and "Peace
Yes—Occupation No" (some cried out "army no") lasted several minutes,
until the TV crews managed to get the quiet to interview the five, their
parents and their lawyer.
"We are being punished for saying the word o-c-c-u-p-a-t-i-o-n. So here I
say it again: occupation, occupation, occupation" said Matan Kaminer.
"The most easy thing for an 18-year old in this country is to get an
exemption from the army through all kind of backhand tricks. Anybody
can do it, and many do. We chose to go the hard way. We say that the
occupation is a moral abomination which moral people can not tolerate and
that this is the reason that we refuse to enlist. If our sincerity means that
we will sit many years in prison then we will sit many years in prison."
"We say a truth that most of the public does not know, and that many
choose not to know, and that's why we are being punished" said Haggai
Matar. "They do war crimes and they expect us to keep silent. But we will
not be silent. We will speak out against the occupation, even when we pay
a price. After an exhausting year we find that the military court is not
willing to listen to what we have to say. It turns out that Colonel Avi Levy
is after all not more than a screw in the military machine. He is not the kind
of person to shake the whole system."
"The worse the occupation becomes, the more people will refuse." These
words of Adam Maor were to go into the evening TV news of Channel-I.
He went on to say: "A country which oppresses three and half million
people and denies them the most basic human rights is a country which is
bound also to oppress its own citizens. No wonder that this country is
sending us to prison. No wonder that it is trampling the poor and the
disadvantaged, as it does."
Shimri Tzameret was next: "I am not deterred by this verdict. This court is
part of the army, and the army is doing terrible and immoral things such as
sending my friends to risk their life for Netzarim settlement and for Hebron,
when everybody knows that eventually we will evacuate these places. The
army is causing despair in the Palestinian society. In fact it is the army
which is breeding the suicide bombers. This is the kind of army it is, and it
is no surprise that this is the verdict handed by the court of this army."
Last of the five was Noam Bahat: "It is important to remember that the war
going on now is a war of choice, a war which is not needed for survival or
self-defence. A war of choice is by definition immoral. We must refuse
because this war will end only when people stop supporting it. I can't say
that I am happy with this verdict, but it is in no way a reason for me or the
others to give up."
"I have listened most carefully to this verdict", said adv. Dov Chenin. "The
test of whether a basic civil or human right is being respected is not when
everybody agrees. The test is exactly when it is hotly controversial. The
court said that the Freedom of Conscience is protected by Israeli law, but
it refuses to apply it where it is most needed. If people like these
five don't get the protection of the Freedom of Conscience, then this freedom
doesn't exist. About this I have a strong debate with the court. This right
was not given the weight it deserves, which in my view makes the verdict
unconstitutional." (This was perhaps the first draft of an appeal to the
Meanwhile, the last act of this court is still to come: next Tuesday (Dec.
23) at 2pm, the court is to hear the arguments of the prosecution and
defence as to the fitting punishment, which is expected on that same day.
[The information reached us that solidarity demonstrations for The Five
took place today in London, Rome and Berlin, and that in France over
one thousand signatures were collected on a petition initiated by veterans who
had themselves served prison terms for refusing to take part in the
For more information:
Adv. Dov Chenin +972-3-5256333 / +972-68-249212
Anat Matar +972-3-5408977 / +972-58-560001
Messages of support to: email@example.com
Hebrew readers can follow the "Prison Blog" of Shimri at:
The above report was written by Gush Shalom member Adam Keller on behalf of the Refuser Parents' Forum. The Five are due to be sentenced next week.