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News :: Miscellaneous |
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IDF Refusenik update |
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by haaretz via gehrig
(No verified email address)
Address: http://www.haaretzdaily.com/hasen/pages/ShArt.jhtml?itemNo=180174 |
27 Jun 2002
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IDF refusenik asking for military court rather than disciplinary hearing: "The arguments that I wish to present," he wrote in his request, "can be heard only in the framework of a trial in military court. Since the officer in a disciplinary hearing is not a jurist, and the army does not allow representation by attorneys before these officers, the legal questions that should determine whether I am indeed guilty of an offense or, as I claim, am innocent of any crime, cannot be heard in a disciplinary hearing." |
Thursday, June 27, 2002 Tamuz 17, 5762
Fighting for his day in court
By Moshe Gorali
In an unusual move, First Lieutenant (Res.) David Zonsheine was released from custody on Monday - at least temporarily. Zonsheine, a 29-year-old software engineer and reserve officer in an elite paratroopers unit, refused to serve in the territories during Operation Defensive Shield. His commanders decided to bring him before a superior officer in a disciplinary hearing, but Zonsheine asked to present his case in formal proceedings before a military court. The military prosecutor of the IDF Central Command, Lt. Col. Ro'i Ginot, denied Zonsheine's request. He was then tried before Brig. Gen. Tal Rousso, who sentenced him to 35 days in prison.
Zonsheine did not give up. Attorney Michael Sfarad from Avigdor Feldman's law firm petitioned the High Court of Justice on behalf of Zonsheine to order the IDF to comply with his request to be tried in a military court. Zonsheine won a temporary injunction last week, and the court ordered a hearing date set as soon as possible. The hearing took place on Monday, after Zonsheine had already sat in prison for 13 days. A three-justice panel including Aharon Barak, Dorit Beinish and Ayala Procaccia decided that more time would be required to consider the case and proposed that the prisoner be released in the meantime. Attorney Yuval Roitman, representing the IDF, agreed to release Zonsheine.
Zonsheine is taking a considerable risk: a military court is authorized to hand down a two-year sentence for the offense Zonsheine is charged with - "failure to carry out an order." On the other hand, an officer who tries a soldier in a disciplinary hearing can deliver a sentence of 35 days at most. Zonsheine received the maximum sentence in his disciplinary hearing, but he was not provided an opportunity to present his ideological defense. In addition, his attorney argued, he is entitled to a serious legal procedure and ruling that befit such a weighty matter.
Not just guard duty
The army has good reasons not to upgrade the refuseniks from disciplinary hearings to court proceedings. In particular, the IDF is not interested in providing them a platform for ideological debate. In addition, as attorney Roitman expressed the IDF policy: "The petitioner is asking to hide the disciplinary hue of the offense. The refusal to carry out a command is a simple and clear disciplinary matter."
Attorney Sfarad heatedly objects: "This is not a matter of refusing to wear a beret or failing to do guard duty. Disciplinary hearings are meant to deal with minor violations or to respond quickly with serious breaches of discipline, and this does not apply to the case before us."
Sfarad built his case on an article of military law that grants a soldier the right to ask to be tried in a military court. Roitman replied that "the law gave the IDF Judge Advocate General control over this process [that is, to decide whether to send a case to a disciplinary hearing or a military court - M. G.] and his decision was certainly reasonable."
Since the start of Operation Defensive Shield, there have been about 80 cases of refusal and all of them have been handled in disciplinary hearings. Only Zonsheine is insisting on reaching a military court.
"The arguments that I wish to present," he wrote in his request, "can be heard only in the framework of a trial in military court. Since the officer in a disciplinary hearing is not a jurist, and the army does not allow representation by attorneys before these officers, the legal questions that should determine whether I am indeed guilty of an offense or, as I claim, am innocent of any crime, cannot be heard in a disciplinary hearing."
Zonsheine says the army should also have an interest in hearing the issues that he is raising in a military court. Otherwise, reserve soldiers will continue to be tried in disciplinary hearings for similar offenses without any real decisions being made.
Ostensibly, the High Court is supposed to rule only on the question of whether the judge advocate general made a reasonable decision when determining that the case involves a disciplinary infraction and does not belong in military court. But Sfarad has already managed to put before the High Court justices some of the main arguments of his defense: "This involves a refusal to carry out a command that the petitioner regarded as blatantly illegal. He is entitled to a defense of necessity, both from the normal criminal perspective and the constitutional perspective, according to which necessity of conscience is part of human dignity. The danger to which the petitioner was exposed must also be taken into consideration, a danger that the honorable President Barak recently noted - the possibility of being brought to trial before an international criminal court that is soon to be established."
The message is clear: can an officer presiding over a disciplinary hearing, who is not a jurist, cope with such heavy legal artillery? Does he fully understand the meaning of the necessity defense? Is he aware of the new system of balances that the constitutional revolution has imposed?
Attorney Roitman slipped into this trap in his response, which aroused a stir among the crowd (sympathetic to Zonsheine) in the packed courtroom. `The petitioner was not sent to carry out an assassination," Roitman said, "but rather to reserve duty in Judea and Samaria. Perhaps this argument can be raised against a certain command, and then it might be handled differently."
Sfarad definitely noted this argument. He'll be sure to use it when his petition against the legality of targeted killings is heard. The fact that the state's representative chose to use this example of assassinations to illustrate the possibility of legitimate refusal is liable to help in this petition.
When the hearing ended on Monday and the justices left the room, Zonsheine's supporters shouted out in celebration, something that rarely occurs in the halls of the Supreme Court. They saw the justices' indecision as an encouraging sign, but the victory in getting the petition heard also means an escalation of the confrontation. This escalation will put the refuseniks to the test and demand a higher price than media and legal campaigns. The state has so far managed to generally defuse the pockets of refusal, which have yet to pull the Israeli public into a real debate. This is because, among other reasons, there are no prisoners of conscience withering away in prison for dozens of years, turning into symbols of identification, around whom the struggle is waged. The successful struggle in South Africa, for example, was symbolized by Nelson Mandela, who sat in prison for 35 years, not the maximum 35 days that Israel "agrees" to allot to its refuseniks.
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