Political disobedience in the IDF: The scope of the legal right of soldiers to be excused from taking part in military activities in the occupied territories

Israel Law Review

Volumn 36, Issue 3, 2002, Pages 73-110

  Medina, Barak ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 84876291127     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700017982     Document Type: Article

References (195)

1. For a detailed account of the history of conscientious objections see, e.g., Constance Braithwaite, Conscientious Objection to Various Compulsions under British Law (York, England, William Sessions Limited, 1995)
2. John W. Chambers II “Conscientious Objectors and the American State from Colonial Times to the Present” in Charles C. Moskos and John W. Chambers II, eds. The New Conscientious Objection: From Sacred to Secular Resistance, (New York, Oxford University Press, 1993) 23
3. Fredrick L. Brown, Stephen M. Kohn and Michael D. Kohn “Conscientious Objection: A Constitutional Right,” (1985–1986) 21 New England Law Review 545
4. Peter Broch, ed. Liberty and Conscience: A Documentary History of the Experience of Conscientious Objection in America through the Civil War (New-York, Oxford University Press, 2002).
5. See, e.g., Chambers, Liberty and Conscience: A Documentary History of the Experience of Conscientious Objection in America through the Civil War at 42.
6. However, a draft registration requirement is applied. For an economic analysis of the practice of military conscription see Casey B. Mulligan and Andrei Shleifer, “Conscription as Regulation” (NBER Working Paper No. W10558, 2004).
7. For instance, the right to conscientious objection to serve in entrenched in the constitution of Germany. In other countries (such as the UK) this right is recognized in legislation. For an overview see, e.g., Michael F. Noone Jr., “Legal Aspects of Conscientious Objection: A Comparative Analysis” in Charles C. Moskos and John W. Chambers II, eds. The New Conscientious Objection: From Sacred to Secular Resistance (New York, Oxford University Press, 1993) 177.
8. For an overview from a comparative perspective see Charles C. Moskos and John W. Chambers II “The Secularization of Conscience” in Charles C. Moskos and John W. Chambers II, eds. The New Conscientious Objection: From Sacred to Secular Resistance (New York, Oxford University Press, 1993) 3.
9. Moskos and Chambers, The New Conscientious Objection: From Sacred to Secular Resistance
10. Christian Bay “Civil Disobedience: Pre-Requisite for democracy in Mass Society” in Dan Spits, ed. Political Theory and Social Change (New York, Atherton Press, 1967) 178
11. Ronald Dworkin, “On Not Prosecuting Civil Disobedience” in Taking Rights Seriously (Cambridge, Mass., Harvard University Press, 1978) 222
12. Leon Sheleff, The Voice of Honor: Civil Disobedience and Civic Loyalty (Tel-Aviv, Ramot Publishing Co., 1989) 14.[Hebrew]
13. Article 1 of the Basic Law: The Army states: “Tsva Hagana Le-Israel (Israel Defense Forces) is the army of the Country”.
14. See, e.g., Edward Luttwak and Dan Horowitz, The Israeli Army (London, Allen Law, 1975)
15. Dan Horowitz, “The Israel Defense Forces: A Civilianized Military in a Partially Militarized Society” in Roman Kolkowicz and Andrzej Korbonski, eds. Soldiers, Peasants and Bureaucrats (London, Allen Law, 1982)
16. Michael N. Barnett, Confronting the Costs of War: Military Power, State, and Society in Egypt and Israel (Princeton, Princeton University Press, 1993).
17. In general, within the Zionist Jewish community in Israel, the compelled army service is still conceived as a privilege. Service in the IDF, mainly in high-ranking or prestigious positions, is an important factor in one's success in both the private and public sectors. An example of this prestige can be seen in the campaign to enable women to serve in combat positions. See, e.g., H.C. 4541/94, Miller v. Minister of Defense, 49(4) P.D. 94.
18. See also, in general, Guy Israel Zeidman, The Right to Serve in the IDF (Tel-Aviv, Prelstein-Ginosar Publishers Ltd., 1996). [Hebrew]
19. Yoram Peri, “Israel: Conscientious Objection in a Democracy under Siege” in Charles C. Moskos and John W. Chambers II, eds. The New Conscientious Objection: From Sacred to Secular Resistance (New York, Oxford University Press, 1993) 146, at 156.
20. Peri, The New Conscientious Objection: From Sacred to Secular Resistance, at 147.
21. See, in this respect, Yehuda Meltzer “The Agony of the ‘Peace Now’ Movement” in Ishai and Dina Menuchin, eds. The Limits of Obedience (Tel-Aviv, Siman Kriaa 1985) 151 [Hebrew], who argues that supporters of the “Peace Now” movement, who strongly opposed the war in Lebanon (1982–1985), did not refuse to participate in it due to their unwillingness to bear the expected social, informal condemnation of an act of refusal to serve in the army and not because of principled arguments or fear of legal sanctions.
22. See also Ishayahu Leibowitz “The Fighting Man and His Country” The Limits of Obedience, at 160 [Hebrew] (soldiers who refuse to serve in an unjust war are courageous since they were able to conquer the common fear from social condemnation).
23. Peri, The Limits of Obedience, at 152–153.
24. Ishai and Dina Menuchin eds. The Limits of Obedience (Tel-Aviv, Siman Kriaa 1985). [Hebrew]
25. Peri, The Limits of Obedience, at 153–156.
26. For a detailed account of the motives and challenges of IDF soldiers who objected to serve see Peretz Kidron, ed. Refusenik! Israel's Soldiers of Conscience (New York, Zed Books, 2004)
27. Ruth Linn, Conscience at War: The Israeli Soldier as a Moral Critic (New York, State University of New York Press, 1996).
28. The motion is quoted in Moshe Negbi, Above the Law: The Constitutional Crisis in Israel (Tel-Aviv, Am Oved, 1987) 128 [Hebrew].
29. See also Peri, Above the Law: The Constitutional Crisis in Israel, at 155
30. Elyakim Ha'etzni “Civil Disobedience in the Perspective of the Crisis in Israeli Society” in Yehoshua Weinstein, ed. Disobedience and Democracy (Jerusalem, Shalem Publishing, 1998) 183 [Hebrew].
31. For instance, in September 2003 a few dozen Israeli Air Force pilots announced their refusal to participate in air strikes in the Occupied Territories basing their refusal on their view that such strikes are immoral. Similarly, several hundred IDF soldiers have denounced the Israeli occupation of the territories and stated their refusal to serve there. See Amir Paz-Fuchs and Michael Sfard The Fallacies of Objections to Selective Conscientious Objection,” (2002) 36 Israel Law Review 111.
32. See, e.g., Ha'etzni, Israel Law Review.
33. Peri, Israel Law Review, at 155.
34. The Israeli Supreme Court upheld the policy of the Attorney-General to avoid prosecuting people who encourage soldiers to refuse to participate in uprooting Jewish settlements, notwithstanding sections 109 and 110 of the Criminal Code, 1977, which forbid such encouragement, based on the interest in the freedom of speech: H.C. 588/94, Shlanger v. A.G., 48(3) P.D. 40.
35. See also in this respect the celebrated case of Kol Ha'am: H.C. 73/53, Kol-Ha'am Co. v. Minster of Interior, 7 P.D. 871.
36. However, the Supreme Court upheld the decision of the Public Broadcasting Authority to ban pro-refusals ads (which referred to prohibition to obey orders to participate in certain military activities that are classified as War crimes) in the electronic media: H.C. 7144/01, Gush Shalom v. Rashut Hashidor, 56(2) P. D. 887.
37. Peri, P. D., at 156
38. Sheleff, P. D.
39. For a similar policy in the US see Chambers, P. D., at 44.
40. See Menachem Hofnung, Israel - National Security Versus The Rule of Law (Jerusalem, Nevo, 1991) 253.
41. This change of policy was explicitly admitted by the IDF's council in the case of Algazi. In this case, a soldier, whose petition to be excused from serving in the Occupied Territories was denied and was sentenced to jail, argued that he was illegally discriminated against. The IDF's council reply, as quoted in the Supreme Court judgment, stated as follows: “Army authorities had assured objectors that they would be stationed according to their wishes… as long as acts of refusal was an isolated phenomenon. Now the policy has changed. What had once been sporadic instances of refusal that IDF was willing to tolerate, has changed in its nature and become an organized protest whose aim is to turn the IDF… into the battleground for a kind of confrontation which the army should not be associated with”: H.C. 470/80, Algazi v. Minister of Defense (unreported case).
42. The Court criticized the army for not publicizing its new policy but rejected the soldier's petition. For an analysis of this case see Yoram Shachar “Algazi Trials-Selective Conscientious Objection in Israel,” (1982) 12 Israel Yearbook of Human Rights 214
43. Peri, Israel Yearbook of Human Rights, at 152.
44. See also H.C. 630/89, Machnes v. The Head of the IDF's General Staff (unreported case). In a recent case, five objectors were imprisoned for 12 months: MT 151/03 Military Prosecutor v. Matar (unreported case).
45. H.C. 4062/95, Epstein v. Minister of Defense (unreported case).
46. Compare Brown et al., H.C.
47. For an assessment of the appropriate type of defense - justification or excuse - in the general case of conscientious objection see Itzhak Kugler, “Conscientious Objection as a Defense in Criminal Law” in Ruth Gavison, ed. Freedom of Religion and Conscience-Essays in Memory of Judge Chamman P. Shelach (Tel-Aviv, Sifriat Poalim, 1990) 207 [Hebrew].
48. In practice, the “conscientious committee”, which is assigned by the Minister of Defense to grant exemptions to those who claim that they conscientiously object to serve in the armed forces, only rarely grants such an exemption. The Supreme Court rejected petitions against this practice, based on the view that the committee retains a wide discretion in assessing the sincerity of the objector's claim: Epstein, Freedom of Religion and Conscience-Essays in Memory of Judge Chamman P. Shelach
49. H.C.1380/02, Ben-Artzi v. Minister of Defense, 56(4) P.D. 476
50. A 212/99, Kalmakov v. IDF's AG (unreported case). On the other hand, exemptions are granted to Arabs and to those who refuse to serve based on religious beliefs, such as the objection of most religious Jewish citizens in Israel to the idea of women serving in the army, and the objection of many Ultra-Orthodox Jews to the service of men. See infra n. 46 and 47.
51. See Algazi, infra
52. H.C. 734/83, Shine v. Minister of Defense, 38(3) P.D. 393
53. H.C. 7622/02, Zonshein v. Judge-Advocate General, 57(1) P.D. 726.
54. For an English translation of this judgment see “Zonshein v. Judge-Advocate General,” (2002) 36 Israel Law Review 1.
55. Citations below refer to the English translation in this issue. See also HC 2383/04, Milo v. Minister of Defense.
56. Zonshein, HC, at 13 (President Barak).
57. HC, at 15 (President Barak).
58. For the distinction between conscientious objection and civil disobedience see John Rawls, A Theory of Justice (Cambridge, Mass., Harvard University Press, Revised edition, 1999) 319–343
59. Joseph Raz, The Authority of Law (Oxford, Oxford University Press, 1979) 263–276
60. David Heyd “Objection - Political or Conscientious (or: Is there a Border between Civil Disobedience and Conscientious Objection)?” in Yishai Menochin, ed. On Democracy and Obedience (Jerusalem, Siman Kriaa, 1990) 99 [Hebrew].
61. Rawls, On Democracy and Obedience, at 321.
62. For instance, the activities of Martin Luther King Jr. were based not only on the right to freedom of conscience but also on the argument that the discriminatory statutes that he violated were actually unlawful, and the disobedience was aimed at initiating judicial review of these laws. See Abe Fortas Concerning Dissent and Civil Disobedience (New York, The New American Library, newly revised, 1970)
63. Sheleff, Concerning Dissent and Civil Disobedience, at 99.
64. See section 34–13(2) of the Israeli Criminal Code, 1977
65. section 125 to the Military Jurisdiction Act, 1955.
66. For an implementation of this concept in Israel see M.C. 3/57, Military Prosecutor v. Milenki, 17 P.M. 90 (the order to shoot civilians who violated a curfew is “manifestly illegal”)
67. H.C. 425/89, Tsofan v. Judge-Advocate General, 43(4) P.D. 718 (the order to hit and “break the arms and legs” of civilians who attacked the soldiers, after the attackers were caught, is “manifestly illegal”)
68. H.C. 4668/01, Sarid v. Prime Minister, 56(2) P.D. 265 (the order to kill terrorists after they were captured is “manifestly illegal”).
69. See also, in general, Nico Keijzer, Military Obedience (Alphen aan den Ryn, Sitjthoff and Noordhoff, 1978).
70. See, e.g., Gillette v. United States 401 US 437 (1971), at 456: “Moreover, the belief that a particular war at a particular time is unjust is by its nature changeable and subject to nullification by changing events. Since objection may fasten on any of an enormous number of variables, the claim is ultimately subjective, depending on the claimant's view of the facts in relation to his judgment that a given factor or congeries of factors colors the character of the war as a whole.”
71. See, e.g., Meir Shamgar, “Legal Concepts and Problems of the Israeli Military Government - The Initial Stage” in M. Shamgar, ed. Military Government in the Territories Administered by Israel, 1967–1980 (Jerusaelm, Sacher Institute, 1982) 13, at 43
72. David Kretzmer The Occupation of Justice: the Supreme Court of Israel and the Occupied Territories (Albany, NY, State University of New York Press 2002) at 19–21.
73. The HCJ has acknowledged the standing of residents of the Occupied Territories, as well as any Israeli citizen, to challenge the legality of government action before it. Most importantly, the HCJ has decided that as a general matter the EDF's activities in the Occupied Territories are justiciable, based on both the Israeli constitutional and administrative law (See, e.g., Kretmer, at 19–29.
74. The seminal case in this respect is H.C. 619/78, Al Taliya Journal v. Minister of Defense 33(3) P.D. 505, at 512 (Justice Shamgar): “The exercise of powers by the respondent will be examined according to the criteria which this court applies when it reviews the act or omission of any other arm of the executive branch…”.
75. See also H.C. 358/88, The Association for Human Rights v. Central Command General, 43(2) P.D. 529
76. H.C. 548/04 Amana v. The Commander of the IDF in Judea and Samaria (unreported case)) and on the applicable international law of belligerent occupation. In recent years the HCJ has based its judicial review also on international humanitarian law (the Geneva Convention Relative to the Protection of Civilian Persons in time of War, 1949), notwithstanding the view that this law is not enforceable
77. e.g. Kretzmer, at 40–42.
78. The Court issues, in appropriate cases, a temporary injunction, pending review of the decision to employ a specific measure. In several cases the Court has ruled that the application of certain measures is absolutely prohibited, regardless of their alleged efficacy or necessity. Among those measures prohibited by the Israeli Supreme Court in recent years are: the use of force and of other means classified as “torture” in interrogations, even in cases of so-called “ticking bombs” (H.C. 5100/94, Public Committee Against Torture in Israel v. Government of Israel,- 53(4) P.D. 817.
79. See also Kretzmer, P.D. at 135–143
80. M. Kremnitzer and R. Segev, “Using Force During Investigations” (1998) 4 Mishpat Umimshal 667 [Hebrew]
81. Eyal Benvenishti, “The Role of National Courts in Preventing Torture of Suspected Terrorists,” (1997) 8 European J. of Int'l L. 596
82. Oren Gross, “Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience” (2004) 88 Minnesota Law Review 1481)
83. the detention of hostages as a means to receive information (D.N.P. 7048/97, Plonim v. Minister of Defense, 54(1) P.D. 721.
84. See Orna Ben-Naftali and Sharon S. Gleichgevitch, “Missing in Legal Action: Hostages in Israel,” (2000) 41 Harv. Int'l L.J. 185)
85. the use of civilians as “human shields” in military activities; and the use of measures aimed at collective punishment. The HCJ has also imposed the duty to detain suspects in a manner preserving their human dignity (H.C. 3278/02, Center for Defense of the Individual v. IDF Commander in the West Bank, 57(1) P.D. 385
86. H.C. 5591/02, Yassin v. Commander of Kziot Military Camp, 57(1) P.D. 403.
87. See also Leora Dahan “Judicial Review of the Detention Conditions of Suspected Terrorists” (2002) 36 (2) Israel Law Review 159).
88. Based on this measure the HCJ has reviewed numerous activities of the IDF, including the use of measures such as detentions, house demolitions, deportations, curfews, the procedures of opening fire on suspects, and other military activities and practices, see, e.g., H.C. 4764/04, Physicians for Human Rights v. The Commander of the IDF Forces in Gaza (unreported case) (ensuring adequate medical treatment to residents who are injured as a result of the IDF's military activities and the IDF's obligation to ensure adequate supply of the basic human needs of the population)
89. H.C. 2936/02, Physicians for Human Rights v. The Commander of the IDF Forces in the West Bank, 56(3) P.D. 3
90. H.C. 10356/02, Hes v. The Commander of the IDF Forces in the West Bank (unreported case)
91. H.C. 7015/02, Ajori v. The Commander of the IDF Forces in the West Bank, 56(6) P.D. 352
92. H.C. 8990/02, Physicians for Human Rights v. The Commander of the Southern Command, 57(4) P.D. 193 (reviewing, from an ex-ante perspective, the legitimacy of the use of specific weapons).
93. See Yoav Dotan “Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the Israeli High Court of Justice During the Intifada” (1999) 33 Law and Society Review 319.
94. See also, e.g., H.C. 3114/02, Barake v. Minister of Defense 56(3) P.D. 11
95. H.C. 10356/02, Hes v. The Commander of the IDF Forces in the West Bank, (unreported case).
96. Kretzmer, in his comprehensive review of the scope and content of the judicial review of Israel's activities in the Occupied Territories concurs with this assessment: “In its decisions relating to the Occupied Territories the Court has rationalized virtually all controversial actions of the Israeli authorities” such that “if we restrict our attention to actual Court decisions …it is difficult to escape the conclusion that the Court's legitimization [of Israel's activities in the Occupied Territories] function has dominated. But when the overall picture is considered, the conclusion is far less clear, since the Court's shadow has played a significant role in restraining the authorities”: Kretzmer, H.C., at 190.
97. The requirement that “the basic structure of society is reasonably just, as estimated by what the current state of things allows” is a pre-requisite to recognize the duty to comply with unjust laws: Rawls, H.C., at 308.
98. See also in this respect Haim Conn, “The Right and Duty of Resistance” (1968) 1 Revue de l'homme 491
99. Hannah Arendt “Civil Disobedience” in Crises of the Republic (New York, Harcourt, Brace, Janovich, 1972)
100. Chaim Gans, Philosophical Anarchism and Political Disobedience (New York, Cambridge University Press, 1992).
101. See Yizhak Zamir, “The Limits of Obedience” in Aharon Barak et al., Gevorot to Simon Agranat (Jerusalem, Nevo, 1987) [Hebrew] (arguing that unlawful laws and orders should be dealt with by the Judiciary rather than through individual acts of disobedience).
102. H.C. 4481/91, Bargil v. The Government of Israel, 47(4) P.D. 210
103. H.C. 3125/98, Ia'ad v. The Commander of the IDF Forces in Judea and Samaria, 55(1) P.D. 913.
104. See, e.g., Michael F. Noone, ed. Selective Conscientious Objection: Accommodating Conscience and Security (Boulder, Colarado,Westview Press, 1989).
105. The issue of “selective” conscientious objections is an inevitable outcome of the extension of the protection of the freedom of conscience beyond the religious spheres. The United States Supreme Court altered section 6(j) of the Military Selective Service Act, which provided an exemption to combat training and service in the armed forces of the United States for those “who, by religious training and belief, [are] conscientiously opposed to war in any form”. The Court avoided the Establishment Clause issues raised by this provision by rewriting the “religious” requirement for objectors while denying exemptions for those opposed only to wars deemed “unjust” by their religion or other belief. See United States v. Seeger, 380 US 163 (1965)
106. Welsh v. United States, 398 U.S. 333 (1970)
107. Gillette, U.S.
108. For an assessment of this jurisdiction see Moskos and Chambers, U.S.
109. Matthew G. Lindenbaum, “Religious Conscientious Objection and the Establishment Clause in the Rehnquist Court: Seeger, Welsh, Gillette, and Section 6(j) Revisited,” (2003) 36 Columbia Journal of Law and Social Problems 237
110. Kent Greenawalt, “All or Nothing at All: The Defeat of Selective Conscientious Objection,” (1971) Supreme Court Review 31
111. David Malament “Selective Conscientious Objection and the Gillete Decision,” (1972) Philosophy and Public Affairs 363.
112. Zonshein, Philosophy and Public Affairs.
113. Philosophy and Public Affairs, at 14.
114. Philosophy and Public Affairs, at 14.
115. Philosophy and Public Affairs, at 15.
116. For a description of the IDF's policy regarding such types of refusals see Philosophy and Public Affairs.
117. H.C. 5370/97, Sa'adia v. The Minister of Defense (unreported case)
118. H.C. 1452/02, Sa'adia v. The Minister of Defense (unreported case)
119. Alan Dowry, The Jewish State: A Century Later (Berkeley, University of California Press, 1998) 213
120. David Kretzmer, The Legal Status of the Arabs in Israel (Boulder, Westview Press, 1990) 125
121. Amer Ahoria, “Civil Service to Arabs in Israel” (1995) 37 The New East 224 [Hebrew]
122. Ilan Saban, “The Minority Rights of the Palestinian-Arabs in Israel: What is, What isn't and What is Taboo” (2002) 26 Tel-Aviv University Law Review 241, 276 [Hebrew]
123. Hasan Jabarin, “Towards Critical Accounts of the Palestinian Minority: Citizenship, Nationality and Feminism in Israeli Law” (2000) 9 Plilim 53 [Hebrew].
124. See Postponing Military Service of Yeshiva Students Act, 2002.
125. See also H.C. 3267/97, Rubinstein v. The Minister of Defense, 52(5) P.D. 481
126. Gideon Sapir, “Conscription of Yeshiva Students to the IDF: A Proposal of the Relevant Normative Considerations” (2001) 9 Plilim 217 [Hebrew].
127. See, e.g., The Contract between the IDF and Israeli Society: The Conscription (Jerusalem, IDI publications, 2001).
128. Rubinstein, The Contract between the IDF and Israeli Society: The Conscription.
129. This term is based on Justice Stone famous footnote 4 in United States v. Carotene Products, 304 U.S. 144 (1938), which argued that stricter standard of review is appropriate in cases of status “directed at particular religious or national or racial minorities”, because “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities”.
130. See, e.g., Lusky “Footnote Redux: A Carolene Products Reminiscence,” (1982) 82 Columbia Law Review 1093.
131. Rawls, Columbia Law Review, at 324.
132. See Sheleff, Columbia Law Review, at 25–28.
133. See also Michael Walzer, Obligations: Essays on Disobedience, War, and Citizenship (Cambridge, Mass., Harvard University Press, 1970) 3: Throughout history, when men have disobeyed or rebelled, they have done so, by and large, as members or representatives or groups, and they have claimed not merely that they are free to disobey, but that they are obligated to do so”.
134. Rawls, Obligations: Essays on Disobedience, War, and Citizenship, at 321.
135. Obligations: Essays on Disobedience, War, and Citizenship, at 321.
136. Obligations: Essays on Disobedience, War, and Citizenship, at 321.
137. See, e.g., Daphna Lewinsohn-Zamir, “Consumer Preferences, Citizen Preferences, and the Provision of Public Goods,” (1998) 108 Yale Law Journal 377, at 391–399
138. Norbert L. Kerr “Illusions of Efficacy: The Effects of Group Size on Perceived Efficacy in Social Dilemmas” (1989) 25 J. Experimental Soc. PsychoL 287
139. R. Dawes, A. Van de Kragt and J. Orbell, “Cooperation for the Benefit of Us - Not Me or My Conscience” in J.J. Mansbridge, ed. Beyond Self-Interest (Chicago, University of Chicago, 1990) 97
140. E. Fehr and U. Fischbacher, “Why Social Preferences Matter - The Impact of Non-Selfish Motives on Competition, Cooperation and Incentives” (2002) 112 Econ. J. 478.
141. See, e.g., Robert T. Hall, The Morality of Civil Disobedience (New York, Harper and Row, 1971) at 131.
142. See, e.g., Frank I. Michelman “The Constitution, Social Rights and Liberal Political Justification,” (2003) 1 Oxford International Journal of Constitutonal Law 13, at 32–33.
143. See, e.g., Lewinsohn-Zamir, Oxford International Journal of Constitutonal Law, at 396–402
144. J.R. Tyran and L.P. Feld, “Tax Evasion and Voting: An Experimental Analysis” (2002) 55 Kyklos 197
145. D.M. Kahan, “Reciprocity, Collective Action, and Community Policing” (2002) 90 California Law Review 1513.
146. See in this respect Rawls, California Law Review at 312: “When [parties] adopt the majority principle [they] agree to put up with unjust laws only on certain conditions. Roughly speaking, in the long run the burden of injustice should be more or less evenly distributed over different groups in society…. Therefore the duty to comply is problematic for permanent minorities that have suffered from injustice for many years”.
147. As indicated by Moskos and Chambers, California Law Review, at 3, “in several countries of Northern Europe, one out of four draftable men was declaring some form of conscientious objection to avoid military service in the early 1990s. In Germany, in 1991, the number of conscientious objectors climbed to a new high of 151,000 (about the number who must be taken in to keep the armed forces at planned levels)”.
148. For the German experience see also Jurgen Kuhlmann and Ekkehard Lippert, “Conscientious Objection as Social Welfare” in Charles C. Moskos and John W. Chambers II, eds. The New Conscientious Objection: From Sacred to Secular Resistance (New York, Oxford University Press, 1993) 98, at 100.
149. See, e.g., Chambers, The New Conscientious Objection: From Sacred to Secular Resistance, at 42: “As the courts expanded the definition of conscientious objection, and as many local boards became increasingly responsive to CO claims, the number of objectors grew enormously”during the Vietnam War. …In relation to actual inductions, CO exemptions soared from 8 percent in 1967 to 43 percent in 1971, and to an incredible 131 percent in 1972. …Such a phenomenon was unprecedented in the American history”.
150. In the Zonshein case, The New Conscientious Objection: From Sacred to Secular Resistance, at 15, President Barak was “willing to presume -…without ruling in the matter - that the conscience of the conscientious objector (whether selective or full) [may be infringed] only where there substantial harm would otherwise almost certainly be caused to the public interest”.
151. See Walzer, The New Conscientious Objection: From Sacred to Secular Resistance, at 137.
152. See also infra n. 81 and 88.
153. See, e.g., Raz, infra, at 286.
154. A related argument was made regarding the right of physicians to object carrying-out abortions: Such a right should be legitimized only as far as there are enough capable other physicians who are willing to carry-out abortions. See Ruth Gavison, Human Rights in Israel (Tel-Aviv, The Ministry of Defense, 1994) at 48–49
155. David J. Bleich, “The Physician as a Conscientious Objector” (2002) 30 Fordham Urban Law Journal 245.
156. The IDF is widely perceived, as are other armed forces of democratic states, as a non-political organization that is not involved in the country's political discourse. IDF Officers are disqualified from serving as Knesset candidates. A “cooling period” of six months is a pre-requisite for the qualification of senior officers to serve as candidates to the Knesset (Artilce 7 of Basic Law: The Knesset and section 56 of the Knesset Elections Act, 1969).
157. See A.B. 92/03, Mofaz v. The Head of the Central Committee of the Elections to the Sixteenth Knesset (unreported case).
158. The IDF has restricted the right of soldiers to participate in political party primaries. See H.C. 6601/95, Shamgar v. IDF, 49(5) P.D. 240.
159. See in this respect P.D.
160. See, e.g., Gillette P.D., at 456: “[T]here is considerable force in the Governments contention that a program of excusing objectors to particular wars may be impossible to conduct with any hope of reaching fair and consistent results”.
161. Even in the case of “non-political” refusals, the Supreme Court decided that the policy must be set by the legislature rather than by the Executive branch. See Rubinstein, P.D.
162. Rawls, P.D., at 322.
163. For a description of this practice see P.D.
164. In addition to an assessment of the objective consequences of the refusal itself, the objector's subjective motives may also be accounted for. For instance, one may justify a more stringent legal reaction to a refusal which is based on a racist ideology. See Kugler, P.D., at 241–247.
165. See, e.g., Rawls, P.D., at 312: “When [parties] adopt the majority principle [they] agree to put up with unjust laws only on certain conditions…. In view of this, we have a natural duty of civility not to invoke the faults of social arrangements as a too ready excuse for not complying with them. …The duty of civility imposes a due acceptance of the defects of institutions…. Without some recognition of this duty mutual trust and confidence are liable to break down”.
166. P.D. at 312.
167. See also Walzer, P.D. at 120: “When a democratic state goes to war, there are two sorts of people whose refusal to fight warrants special consideration: those who have taken no part in the decision to go to war, and those who oppose that decision. … The refusal of the first group is easier to justify than that of the second”.
168. See Raz, P.D., at 276.
169. Rawls, P.D., at 328.
170. See also Shlomo Avineri, “Obedience and Democracy” in Yehoshua Weinstein, ed. Disobedience and Democracy (Jerusalem, Shalem Publishing, 1998) 165 [Hebrew].
171. Walzer, Disobedience and Democracy, at 137.
172. See also Disobedience and Democracy, at 145: “…the development and articulation of conscience would best be facilitated if compulsory state service…were simply abolished”. This view is based on the projection that “the state can survive without a conscript army”.
173. Chaim Gans, “Right and Left: Ideological Disobedience in Israel,” (2002) 36 Israel Law Review 19.
174. For a similar view in a more general context see Hall, Israel Law Review at 141–151.
175. E.g., Kugler, Israel Law Review, at 216.
176. See Gans, Israel Law Review. A similar argument applies to the claim that a refusal is justified when executing the relevant order would expose the soldier to threat of prosecution by international tribunals, charged with judging violations of international criminal law.
177. Rawls, Israel Law Review, at 327.
178. See also Sheleff, Israel Law Review, at 39.
179. In such a case, the condition that “past actions have shown the majority immovable or apathetic, further attempts may reasonably be thought fruitless” (Rawls, Israel Law Review, at 328) is met.
180. Walzer, Israel Law Review, at 136: “We conceive differently the roles and obligations of citizens and officials (and of civilians and soldiers). … Conscientious objectors may refuse to obey or they may refuse to become instruments of the state …[since] the refusal of groups of men to become state servants …does not prevent the state from carrying out its policies”. The last assumption is not a self-evident.
181. See, e.g., Rawls, Israel Law Review, at 308–318.
182. In this respect, I find the Zonshein decision unsatisfactory. The Court ruled that”…the Minister of Defense has broad discretion in granting exemptions from military service, including those granted for conscientious reasons. Therefore,… the decision to attribute the decisive weight to security needs - due to the tangible fear that recognizing selective objection will damage the framework of the military - stands up to judicial review and does not establish a cause for our intervention”: Zonshein, Israel Law Review at 17 (Justice Beinisch).
183. See also Israel Law Review, at 15 (President Barak): “The Minister of Defense decided that in contemporary Israel, both in light of its inner conflicts and in light of current events, exemptions from military service will not be granted to selective conscientious objectors. It is our opinion that …the balance struck by the Minister of Defense is a balance which a reasonable defense minister, acting proportionately, would have been permitted to strike”.
184. This was the case with the refusal of 46 pilots to participate in combat activities in the Occupied Territories. See, e.g., Ran Benyamini, “Heavens did not Fall: The Media Coverage of the Refusenik Pilots,” (2003) 47 The Seventh Eye 23 [Hebrew].
185. Rawls, The Seventh Eye, at 338.
186. See also Hall, The Seventh Eye, at 131.
187. See, e.g., M.B. Nimmer, “The Meaning of Symbolic Speech under the First Amendment,” (1973) 21 UCLA Law Review 29.
188. According to the measure set in United States v. O'Brien, 391 U.S. 367 (1968), at 400 (C.J. Warren),“when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,… a government regulation [of such conduct] is sufficiently justified if it… furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest”.
189. C.A. 5086/97, Ben-Hor v. Tel-Aviv Municipality, 51(4) P.D. 625, at 631 (Justice Goldberg)
190. Compare Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1983).
191. For a similar view see Sheleff, U.S., at 136–139
192. Gavison, U.S., at 53–55
193. Peter Singer, Democracy and Disobedience (Oxford, Clarendon Press, 1973)
194. Dworkin, Democracy and Disobedience.
195. See Walzer, Democracy and Disobedience, at 132: “Conscientious objection in its secular form is the natural product of political pluralism”.