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The Fallacies of Objections to Selective Conscientious Objection

Published online by Cambridge University Press:  04 July 2014

Amir Paz-Fuchs  and
Michael Sfard
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Abstract

This paper critically analyzes the theoretical and pragmatic arguments raised against the refusal of individuals to serve in a specific military campaign that they view as immoral. The Israeli Supreme Court case of Zonshein v Judge-Advocate General will serve as an axis of the discussion, as it combines two related facets: first, the Court's decision touches upon most of the difficult issues in the field of conscientious objection. And second, the development leading up to the decision was accompanied by an exceptional clash of academics, each side summoning expert opinions in support of its claim.

Courts worldwide have accepted that a categorical distinction exists between universal and selective conscientious objection. The combination of the Zonshein decision and the accompanying academic debate presents the opportunity to reexamine the theoretical and pragmatic reasons that are offered as support for distinguishing the two ‘types’ of conscientious objection. Close scrutiny finds them wanting.

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Articles
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Israel Law Review , Volume 36 , Special Issue: Refusals to Serve - Political Dissent in the Israel Defense Forces 3 , Fall 2002 , pp. 111 - 143
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2002

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References

2 H.C. 7622/02, Zonshein v Judge Advocate General, 57 (1) P.D. 726. For the English translation of the Zonshein case see this issue of the Israel Law Review: “Zonshein v. Judge Advocate General,” (2002) 36 Israel Law Review 1. Citations below refer to the English translation in this issue.

3 For an overview see Giuffre, A., ed. Conscientious Objection in the EC Countries (Giuffre, Mian 1992) 259Google Scholar. There are, however, exceptions. Australia grants provision to “persons whose conscientious beliefs do not allow them to participate in a particular war or particular warlike operations’“ – Defense Act 1903 s 61A (“Persons exempt from service”); Conscientious belief is defined in section 4 of the Act.

4 We recognize the fact that in the past other views were professed: e.g. Powell, Lewis F. Jr., “A Lawyer Looks at Civil Disobedience,” (1966) 23 Washington and Lee Law Review 205Google Scholar.

5 Hook, Sidney, The Paradoxes of Freedom (Berkeley, University of California Press, 1962) 106Google Scholar.

6 Despite it being a problematic decision, we consciously chose to use the masculine form throughout the paper. This is because the nature of draft laws, in Israel and worldwide, leads to a situation that is problematic only to male, and not to female, conscientious objectors.

7 Israel is the only country in the world that practices conscription for women. However, the underlying patriarchal approach led to an interesting case of discrimination against men, as the legislation (Defense Service Law (Consolidated Version) 1986 §39(c)) provides that only women are granted provision as conscientious objectors.

8 H.C. 630/89, Machnes v. Chief of Staff, unreported; H.C. 329/87, Sorko-Ram v. Minister of Defense 43(4) P.D. 873; H.C. 3246/92, Har-Oz v. Minister of Defense 46(5) P.D. 301; H.C. 1996/95 Tisona v. Minister of Defense (unreported).

9 HCHR, CCPR General Comment 22, The Right to Freedom of Thought, Conscience and Religion, paragraph 11.

10 Ibid.

11 As for women, see supra n. 7.

12 The Defense Service Law (Consolidated Version) 1986 §36 (emphasis added).

13 Discussed in HCJ 1380/02, Ben Artzi v. Minister of Defense RD. 56(4) 476.

14 A recent case (Ben-Artzi – ibid.) revealed that the committee granted provision to individuals only three times in eight years (3% of the total number of applicants). It was also revealed that the committee members are all military personnel who deliver judgments without being trained or educated for their task. Following judicial and public criticism, philosophy professor Avi Sagi was added to the committee.

15 H.C. 3261/93, Maiming v Minister of Justice 47(3) SC 282,286; H.C. 4298/93, Jabbarin v Minister of Education, 48(5) RD. 199.

16 H.C. 4541/94, Miller v Minister of Defense 49(4) P.D. 94.

17 Courage to Refuse – Combatant's letter, http://www.seruv.org.il/defaulteng.asp (1 September 2003).

18 Michael Sfard is a signatory on the petition as well as legal counsel for the group.

19 Ron Shapira and Avi Sagi, “A Critical Examination of the Refusal to Serve in the Territories Under Current Circumstances – Is It a Conscientious Objection”, attached to the respondent's arguments in Zonshein, 25/7/2002. See also Sagi, Avi and Shapira, Ron, “Civil Disobedience and Conscientious Objection,” (2002) 36 Israel law Review 181CrossRefGoogle Scholar.

20 Alon Harel, “A Critical Examination of‘A Critical Examination of the Refusal to Serve in the Territories Under Current Circumstances – Is It a Conscientious Objection’“. See also Harel, Alon, “Unconscionable Objection to Conscientious Objection: Notes on Sagi and Shapira,” (2002) 36 Israel law Review 219CrossRefGoogle Scholar.

21 Joseph Raz, Letter to Michael Sfard (copy with authors).

22 David Heyd, Letter to Michael Sfard (copy with authors).

23 The idea to exempt conscientious objectors from the duty to bear arms on the basis of religious scruples goes back to James Madison's proposal for an American Bill of Rights – Greenawalt, Kent “All or Nothing at All: The Defeat of Selective Conscientious Objection” (1971) 31 Supreme Court Review, at 40Google Scholar.

24 Walzer, Michael, Obligations: Essays on Disobedience, War and Citizenship (Cambridge Mass., Harvard UP, 1970) 122.Google Scholar

25 Military Selective Service Act 50 USC § 456(j) (as amended).

26 Immediately following its establishment, Israel agreed to grant provision to several hundred ultra-orthodox Jews so as to enable them to rebuild the “Jewish world of learning” that was almost completely amuhilated during the Holocaust. Even though the numbers grew, all ultra Orthodox Jews were granted exemption from military service on condition that they sign a declaration that “their learning is their vocation”. This highly contentious issue has been brought before the Supreme Court several times by secular groups claiming cuscrimination. The most recent charge was accepted by the Court (H.C. 3267/97, Rubinstein v Minister of Defense, 52(5) P.D. 481), but the practice continues, to a large degree, now with legislative backing. See Postponing Military Service of Yeshiva Students Act 2002.

27 Welsh v. United States 398 US 333, 339, following United States v. Seeger, 380 US 163. Harlan J., while concurring in the result, chose the more direct approach of declaring the discrimination unconstitutional, and observed (p. 351) that while it requires “a remarkable feat of judicial surgery to remove … the theistic requirement”, the majority has performed “a lobotomy and completely transformed the statute”.

28 See Shapira and Sagi, position paper, supra n. 19 at 5.

29 Gillette v United States 401 US 437, 456 [emphasis added].

30 Cohen, Chaim, “Conscientious Objection,” (1968) 78 Ethics 269 at 270CrossRefGoogle Scholar.

31 Seeger, supra n. 27, at 185.

32 Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979) 277CrossRefGoogle Scholar [emphasis in original].

33 See Zonshein, supra n. 2, at 14–15.

34 See Gillette, supra n. 29, at 455.

35 Insofar as the concern is on a conceptual level, dealing with the correct categorization of the dissent, it will be addressed in section 4. It may well be the case, however, that the argument is not conceptual, but evidentiary, i.e. that the objectors' declared motivations are not to be believed. This will be remarked upon towards the end of this chapter.

36 See Hook, supra 5, at 112.

37 Nagel, Thomas, “Moral Conflict and Political Legitimacy,” (1987) 16 Philosophy and Public Affairs 215, at 238Google Scholar.

38 Henry David Thoreau “Civil Disobedience” reprinted in Bedau, HA, ed. Civil Disobedience (New York, Pegasus, 1969) 27, at 35Google Scholar. Of course, the decision when one becomes an “agent” rests on a continuum. Thoreau himself was imprisoned for his refusal to pay taxes that funded what he saw as an unjust policy. Such a wide definition of agency would indeed lead to a justified threat to state authority. We may therefore satisfy ourselves with a narrower approach to agency, whereby one is required to participate in the execution of what he deems as an offensive policy, in a more direct fashion.

39 Walzer, supra n. 24, at 137. The distinction, though similar, is not between acts of commission and acts of omission. A person who objects to any form of taxation will still be required to submit to the majority decision and pay taxes. The state should, however, exempt such a person from serving as a tax collector even if conscription for this position was implemented.

40 Ralph Potter, “Conscientious Objection to Particular Wars” in Giannella, Donald A., ed. Religion and the Public Order (Ithaca, New York, Cornell University Press, 1968) 44, at 88Google Scholar.

41 Military Selective Service Act 50 USC § 456(j) (as amended); Cf Welsh supra n. 27, at 340.

42 Walzer, supra n. 24, at 133; Malament, David B. “Selective Conscientious Objection and the Gillette Decision,” (1972) 1 Philosophy and Public Affairs 363, at 375–376Google Scholar.

43 John Rawls “A Theory of Civil Disobedience” in Dworkin, Ronald, ed. The Philosophy of Law (Oxford, Oxford University Press, 1977) 89, at 105Google Scholar. And see Dworkin, RonaldTaking Rights Seriously (London, Duckworth, 1977) 219Google Scholar.

44 Zonshein, supra n. 2, at 14.

45 Ibid.

46 John Rawls A Theory of Justice (Revised Edition, Oxford, OUP, Revised Edition, 1999) 335, borrowing the “ecumenical” metaphor from Walzer (n 22) 127.

47 Walzer, supra n. 24, at 17.

48 Ronald Dworkin argues that “jailing such men solidifies their alienation from society, and alienates many like them who are deterred by the threat”, See Dworkin, supra n. 43, at 207.

49 Parry, CE, The Psychology of Conscientious Objection (London, Daniel, 1920) 22Google Scholar.

50 Erich Fromm “Disobedience as a Psychological and Moral Problem” in Behrens, Laurence, Rosen, Leonard J., eds. Writing and Reading Across the Curriculum (New York, Longman, 6th ed, 1997) 398Google Scholar.

51 Reprinted as Stanley Milgram, “The Perils of Obedience” in Behrens, B. Laurence, Rosen, Leonard J., eds. Writing and Reading Across the Curriculum (New York, Longman, 6th ed, 1997) 359, at 360.Google Scholar For a similar experiment, see Philip G. Zimbardo “The Stanford Prison Experiment” – reprinted, ibid, 385. While recognizing that both these experiments are extremely controversial from both an ethical and a methodological perspective, they indicate at the very least the individual's basic tendency to obedience and should serve to alleviate some of the quick reservations based upon the anxiety from sliding into anarchy. This may be what Robert M. Lafollete referred to when he stated that “conscience is not so common among our citizens that we can afford ruthlessly to punish its possessors” – cited in Potter, supra n. 40, at 90.

52 See Malament, supra n. 42, at 381.

53 Ibid., at 381–384. The reasons included: education, fatherhood, hardship, and occupational or agricultural deferments.

54 For a similar argument see Dworkin, supra n. 43, at 214. We may defer judgment here on the “gray area” situations, and especially – on the matter of right-wing conscientious refusal to dismantle outposts. In the Israeli context the contention is made as follows: can, or should, the case of “Courage to Refuse” serve to strengthen such a cause? Two different answers can be offered: according to the first, the selective objectors here may be understood to claim a strong right only when one's conscience coincides with the principles of international law. Regardless of the substantive arguments within the context of international law, it is very clear that this is not the “higher source” that the right-wing is claiming adherence to. A second answer may simply agree to generalize the claim for conscientious objection further, and thus accommodate also soldiers who are required to dismantle outposts if it violates their conscience. It should be stressed, however, that this reasoning would apply only to those forced to be instrumental in the dismantling of settlements, and not to those subjected to the policy (i.e. forced to evacuate). See text to notes 37–39.

55 Rawls supra n. 46, at 335; Greenawalt makes a similar point, see supra n. 21, at 49.

56 MT 151/03 The Military Prosecutor v. Matar.

57 See Raz supra n. 32, at 263.

58 See Rawls, supra n. 46, at 320–321; H.A Bedau “Introduction” in Civil Disobedience, supra n. 38, at 23.

59 See Raz, supra n. 32, at 262–289. Sidney Hook, following the same reasoning, states that there could be no “right to revolution” in any system supra n. 5, at 113.

60 Judge Augustus Hand, in an oft-cited passage, described the two categories as mutually exclusive and as stemming from different motivations: “There is a distinction between a course of reasoning in a conviction that a particular war is inexpedient or disastrous and a conscientious objection to participation in any war under any circumstances… The former is usually a political objection, while the latter, we think, may justly be regarded as a response of the individual to an inward mentor, call it conscience or God…” United States v Kauten, 133 F.2d 703, (2nd Cir 1943), at 708.

61 See Greenawalt, supra n. 23, at 53–54.

62 See Potter, supra n. 40, at 67; Malament, supra n. 42, at 369.

63 See Raz Letter, supra n. 21, at 1–2. Dworkin expresses the same position in Taking Rights Seriously, supra n. 43, at 200–201.

64 See Cf the Shine judgment and text to note 5.

65 See Raz, supra n. 32, at 324; Rawls, supra n. 46, at 324.

66 See Shapira and Sagi, position paper, supra n. 19, at 4.

67 See Walzer, supra n. 24, at 20; Greenawalt, supra n. 23, at 59; cf Raz, supra n. 32, at 279–280: To be sure, the objector desires to conform to his beliefs, but it is the fact that those desires reflect a moral belief, which distinguishes them from other desires of his and endows them with a special claim to our respect.

68 Martin Luther King, “Letter from Birmingham City Jail” in H.A. Bedau ed. supra n. 38, 72, at 78 [emphasis in original].

69 Cited in H Wofford, “Non-Violence and the Law: The Law Needs Help” in H A. Bedau ed. supra n. 38, 59, at 68.

70 See Raz, supra n. 32, at 264. How should these cases be dealt with? In many cases, such as Zonshein, the chronological priority corresponds with the logical. That is: if Zonshein's right to conscientious objection would have been recognized, there would have been no need for any public form of dissent. We thank John O'Dowd for this counter-argument.

71 This counter-argument draws heavily on Harel, supra n. 20, at 3.

72 See Thoreau, supra n. 38.

73 George Woodcock, Civil Disobedience (Toronto, Canadian Broadcasting Corporation, 1966) cited in HE Bedau “Introduction”, supra n. 38, at 16.

74 See Zonshein, supra n. 2, at 10.

75 See Zonshein supra n. 2, at 14.

76 Cf H.C. 7081/93, Botzer v maccabim-Reut Municipal Council, 50(1) P.D. 19, Holding that a municipal council is obliged to guarantee a disabled child access to school facilities.

77 Thlimmenos v. Greece (2001), 31 EHRR 15 at 412.

78 See supra n. 26.

79 For a similar view see Cohen, supra n. 30, at 277. Cf the ECHR's jurisprudence, demanding that to establish a violation of Article 14 (which prohibits oUscrimination on forbidden grounds) violation of an independent provision has to be shown: Marckx v. Belgium (1991) 2 EHER 330. It should be mentioned, however, that Protocol No. 12 (4.11.2000) recognizes an independent right to equality.

80 See Gillette, supra n. 29

81 See Greenawalt, supra n. 23, at 50, 79. The hesitance to accept such an assertion is related to the fact that though a person who does not serve seems to enjoy preferential treatment, one must bear in mind the possibility that the person that does serve in the armed forces may be highly motivated to do so for various reasons, such as self-interest, patriotism, an assumption that it would “open doors” for him, etc. There is, however, a substantial group that may lie between the two extremes.

82 See Raz, supra n. 32, at 287–288; Greenawalt, supra n. 23, at 34.

83 See Malament, supra n. 42, at 378–380.

84 See Cohen, supra n. 30, at 274.

85 Donnici, P. “Governmental Encouragement of Religious Ideology: A Study of the Current Conscientious Objector Exemption from Military Service” (1964) 13 J of Pub L 16 16, at 44Google Scholar.

86 See Potter supra n. 40, at 58. A fascinating phenomenon that supports this claim is the radically different consideration granted by the media and the public to the three groups: young pacifists, selective objectors like Zonshein, and the recent letter of dissent signed by air force pilots. It is perceived that the “narrower” the focus of the act that is objected to – the more reproach it attracts.

87 See Greenawalt, supra n. 23, at 62,72. Such reasoning has a long tradition. Indeed, the harshness of the English workhouses was justified by seeing them as a “self acting test of the claim” as “the instrument of relief was itself a test of relief” – Himmelfarb, GertrudeThe Idea of Poverty (London, Faber, 1984) 165Google Scholar.

88 E.g. H.C. 606/93 Kidum v. The Broadcasting Authority 38(2) P.D. 1; H.C. 5118/95 Mayo Simon v. The Second Broadcasting Authority, 49(5) P.D. 751. The analogy goes only that far, however, and should be taken to attest as to the author's position on whether commercial speech should be recognized on a par with various other forms of speech.

89 See BP Vermeulen “Conscientious Objection in Dutch Law” in A Giuffre, ed., supra n. 3, at 259, for a heavy reliance on the distinction between the absolute and inviolable nature of man's inner thoughts and their “external manifestations”