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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

Published online by Cambridge University Press:  04 July 2014

Barak Medina
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Abstract

At issue is the appropriate legal reaction to so-called “selective” conscientious objections in the current Israeli context, accounting for both consequential considerations and deontological ones. It is argued that a relevant distinction in this respect is between objections committed by members of a permanent minority, which are based on views that are practically excluded from the political discourse, and objections which are guided by what Rawls calls “political principles”, that is, “the principles of justice which regulate the constitution”. This distinction can explain and justify the current policy of the Israel Defense Forces (IDF) of granting exemptions to Ultra-Orthodox Jews and to Arabs (even if not all these cases reflect so-called “full” conscientious objection) while denying an exemption to those who refuse to serve based on their opposition to the IDF's activities in the Occupied Territories. However, it is argued that the important expressive role of such refusals requires a more measured approach, by either legitimizing a limited number of such acts or imposing only minimal sanctions (while formally de-legitimizing such acts). These arguments are preceded by an assessment of an alternative possible justification of legitimizing refusals, to prevent the implementation of unlawful activities by the IDF. It is argued that this purpose does not justify legitimization of refusals except in particular instances that are specified.

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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. 73 - 110
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2002

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References

1 For a detailed account of the history of conscientious objections see, e.g., Braithwaite, Constance, Conscientious Objection to Various Compulsions under British Law (York, England, William Sessions Limited, 1995)Google Scholar; Chambers, John W. II “Conscientious Objectors and the American State from Colonial Times to the Present” in Moskos, Charles C. and John W., Chambers II, eds. The New Conscientious Objection: From Sacred to Secular Resistance, (New York, Oxford University Press, 1993) 23Google Scholar; Brown, Fredrick L., Kohn, Stephen M. and Kohn, Michael D. “Conscientious Objection: A Constitutional Right,” (1985–1986) 21 New England Law Review 545Google Scholar; Broch, Peter, 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)CrossRefGoogle Scholar.

2 See, e.g., Chambers, supra n. 1 at 42. However, a draft registration requirement is applied. For an economic analysis of the practice of military conscription see Mulligan, Casey B. and Shleifer, Andrei, “Conscription as Regulation” (NBER Working Paper No. W10558, 2004)CrossRefGoogle Scholar.

3 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., Noone, Michael F. Jr., “Legal Aspects of Conscientious Objection: A Comparative Analysis” in Moskos, Charles C. and Chambers, John W. II, eds. The New Conscientious Objection: From Sacred to Secular Resistance (New York, Oxford University Press, 1993) 177Google Scholar.

4 For an overview from a comparative perspective see Moskos, Charles C. and Chambers, John W. II “The Secularization of Conscience” in Moskos, Charles C. and Chambers, John W. II, eds. The New Conscientious Objection: From Sacred to Secular Resistance (New York, Oxford University Press, 1993) 3Google Scholar.

5 Moskos and Chambers, supra n. 4; Bay, Christian “Civil Disobedience: Pre-Requisite for democracy in Mass Society” in Spits, Dan, ed. Political Theory and Social Change (New York, Atherton Press, 1967) 178Google Scholar; Dworkin, Ronald, “On Not Prosecuting Civil Disobedience” in Taking Rights Seriously (Cambridge, Mass., Harvard University Press, 1978) 222Google Scholar; Sheleff, Leon, The Voice of Honor: Civil Disobedience and Civic Loyalty (Tel-Aviv, Ramot Publishing Co., 1989) 14. [Hebrew]Google Scholar

6 Article 1 of the Basic Law: The Army states: “Tsva Hagana Le-Israel (Israel Defense Forces) is the army of the Country”.

7 See, e.g., Luttwak, Edward and Horowitz, Dan, The Israeli Army (London, Allen Law, 1975)Google Scholar; Horowitz, Dan, “The Israel Defense Forces: A Civilianized Military in a Partially Militarized Society” in Kolkowicz, Roman and Korbonski, Andrzej, eds. Soldiers, Peasants and Bureaucrats (London, Allen Law, 1982)Google Scholar; Barnett, Michael N., Confronting the Costs of War: Military Power, State, and Society in Egypt and Israel (Princeton, Princeton University Press, 1993)Google Scholar. 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. See also, in general, Zeidman, Guy Israel, The Right to Serve in the IDF (Tel-Aviv, Prelstein-Ginosar Publishers Ltd., 1996). [Hebrew]Google Scholar

8 Peri, Yoram, “Israel: Conscientious Objection in a Democracy under Siege” in Moskos, Charles C. and Chambers, John W. II, eds. The New Conscientious Objection: From Sacred to Secular Resistance (New York, Oxford University Press, 1993) 146, at 156Google Scholar.

9 Peri, supra n. 8, at 147.

10 See, in this respect, Meltzer, Yehuda “The Agony of the ‘Peace Now’ Movement” in Ishai, and Menuchin, Dina, eds. The Limits of Obedience (Tel-Aviv, Siman Kriaa 1985) 151Google Scholar [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. See also Ishayahu Leibowitz “The Fighting Man and His Country” ibid., 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).

11 Peri, supra n. 8, at 152–153.

12 Ishai, and Menuchin, Dina eds. The Limits of Obedience (Tel-Aviv, Siman Kriaa 1985)Google Scholar. [Hebrew]

13 Peri, supra n. 8, at 153–156. For a detailed account of the motives and challenges of IDF soldiers who objected to serve see Kidron, Peretz, ed. Refusenik! Israel's Soldiers of Conscience (New York, Zed Books, 2004)Google Scholar; Linn, Ruth, Conscience at War: The Israeli Soldier as a Moral Critic (New York, State University of New York Press, 1996)Google Scholar.

14 The motion is quoted in Negbi, Moshe, Above the Law: The Constitutional Crisis in Israel (Tel-Aviv, Am Oved, 1987) 128 [Hebrew]Google Scholar. See also Peri, supra n. 8, at 155; Ha'etzni, Elyakim “Civil Disobedience in the Perspective of the Crisis in Israeli Society” in Weinstein, Yehoshua, ed. Disobedience and Democracy (Jerusalem, Shalem Publishing, 1998) 183 [Hebrew]Google Scholar.

15 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 Paz-Fuchs, Amir and Sfard, Michael “The Fallacies of Objections to Selective Conscientious Objection,” (2002) 36 Israel Law Review 111CrossRefGoogle Scholar.

16 See, e.g., Ha'etzni, supra n. 14.

17 Peri, supra n. 8, at 155.

18 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. 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. 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.

19 Peri, supra n. 8, at 156; Sheleff, supa n. 5. For a similar policy in the US see Chambers, supra n. 1, at 44.

20 See Hofnung, Menachem, Israel – National Security Versus The Rule of Law (Jerusalem, Nevo, 1991) 253Google Scholar. 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). The Court criticized the army for not publicizing its new policy but rejected the soldier's petition. For an analysis of this case see Shachar, Yoram “Algazi Trials–Selective Conscientious Objection in Israel,” (1982) 12 Israel Yearbook of Human Rights 214Google Scholar; Peri, supra n. 8, at 152. 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).

21 H.C. 4062/95, Epstein v. Minister of Defense (unreported case). Compare Brown et al., supra n. 1.

22 For an assessment of the appropriate type of defense – justification or excuse – in the general case of conscientious objection see Kugler, Itzhak, “Conscientious Objection as a Defense in Criminal Law” in Gavison, Ruth, ed. Freedom of Religion and Conscience–Essays in Memory of Judge Chamman P. Shelach (Tel-Aviv, Sifriat Poalim, 1990) 207 [Hebrew]Google Scholar. 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, supra n. 21; H.C.1380/02, Ben-Artzi v. Minister of Defense, 56(4) P.D. 476; 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.

23 See Algazi, supra n. 20; H.C. 734/83, Shine v. Minister of Defense, 38(3) P.D. 393; H.C. 7622/02, Zonshein v. Judge-Advocate General, 57(1) P.D. 726. For an English translation of this judgment see “Zonshein v. Judge-Advocate General,” (2002) 36 Israel Law Review 1. Citations below refer to the English translation in this issue. See also HC 2383/04, Milo v. Minister of Defense.

24 Zonshein, supra n. 23, at 13 (President Barak).

25 Ibid., at 15 (President Barak).

26 For the distinction between conscientious objection and civil disobedience see Rawls, John, A Theory of Justice (Cambridge, Mass., Harvard University Press, Revised edition, 1999) 263–276Google Scholar; Heyd, David “Objection – Political or Conscientious (or: Is there a Border between Civil Disobedience and Conscientious Objection)?” in Menochin, Yishai, ed. On Democracy and Obedience (Jerusalem, Siman Kriaa, 1990) 99 [Hebrew]Google Scholar.

27 Rawls, supra n. 26, at 321.

28 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 Fortas, AbeConcerning Dissent and Civil Disobedience (New York, The New American Library, newly revised, 1970)Google Scholar; Sheleff, supra n. 5, at 99.

29 See section 34–13(2) of the Israeli Criminal Code, 1977; and section 125 to the Military Jurisdiction Act, 1955. 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”); 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”); 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”). See also, in general, Keijzer, Nico, Military Obedience (Alphen aan den Ryn, Sitjthoff and Noordhoff, 1978)Google Scholar.

30 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.”

31 See, e.g., Shamgar, Meir, “Legal Concepts and Problems of the Israeli Military Government – The Initial Stage” in Shamgar, M., ed. Military Government in the Territories Administered by Israel, 1967–1980 (Jerasaelm, Sacher Institute, 1982) 13, at 43Google Scholar; Kretzmer, DavidThe Occupation of Justice: the Supreme Court of Israel and the Occupied Territories (Albany, NY, State University of New York Press 2002) at 19–21Google Scholar. 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 IDF's activities in the Occupied Territories are justiciable, based on both the Israeli constitutional and administrative law (See, e.g., Kretmer, at 19–29. 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…”. See also H.C. 358/88, The Association for Human Rights v. Central Command General, 43(2) P.D. 529; 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 (e.g. Kretzmer, at 40–42).

32 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. See also Kretzmer, supra n. 31 at 135–143; Kremnitzer, M. and Segev, R., “Using Force During Investigations” (1998) 4 Mishpat Umimshal 667 [Hebrew]Google Scholar; Benvenishti, Eyal, “The Role of National Courts in Preventing Torture of Suspected Terrorists,” (1997) 8 European J. of Int'l L. 596CrossRefGoogle Scholar; Gross, Oren, “Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience” (2004) 88 Minnesota Law Review 1481)Google Scholar; 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. See Ben-Naftali, Orna and Gleichgevitch, Sharon S., “Missing in Legal Action: Hostages in Israel,” (2000) 41 Harv. Int'l L. J. 185)Google Scholar; 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; H.C. 5591/02, Yassin v. Commander of Kziot Military Camp, 57(1) P.D. 403. See also Dahan, Leora “Judicial Review of the Detention Conditions of Suspected Terrorists” (2002) 36 (2) Israel Law Review 159)CrossRefGoogle Scholar.

33 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); H.C. 2936/02, Physicians for Human Rights v. The Commander of the IDF Forces in the West Bank, 56(3) P.D. 3; H.C. 10356/02, Hes v. The Commander of the IDF Forces in the West Bank (unreported case); H.C. 7015/02, Ajori v. The Commander of the IDF Forces in the West Bank, 56(6) P.D. 352; 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).

34 See Dotan, Yoav “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 319CrossRefGoogle Scholar. See also, e.g., H.C. 3114/02, Barake v. Minister of Defense 56(3) P.D. 11; H.C. 10356/02, Hes v. The Commander of the IDF Forces in the West Bank, (unreported case). 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, supra n. 31, at 190.

35 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, supra n. 26, at 308. See also in this respect Cohn, Haim, “The Right and Duty of Resistance” (1968) 1 Revue de l'homme 491Google Scholar; Arendt, Hannah “Civil Disobedience” in Crises of the Republic (New York, Harcourt, Brace, Janovich, 1972)Google Scholar; Gans, Chaim, Philosophical Anarchism and Political Disobedience (New York, Cambridge University Press, 1992)CrossRefGoogle Scholar.

36 See Zamir, Yizhak, “The Limits of Obedience” in Barak, Aharonet al., Gevorot to Simon Agranat (Jerusalem, Nevo, 1987)Google Scholar [Hebrew] (arguing that unlawful laws and orders should be dealt with by the Judiciary rather than through individual acts of disobedience).

37 H.C. 4481/91, Bargil v. The Government of Israel, 47(4) P.D. 210; H.C. 3125/98, Ia'ad v. The Commander of the IDF Forces in Judea and Samaria, 55(1) P.D. 913.

38 Note that in the recent advisory opinion of the International Court of Justice regarding the “legal consequences of the construction of a wall in the occupied Palestinian Territory” (July 2004), while the Court explicitly stated that the “the Israeli Settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law” (para. 120), the Court avoided issuing its opinion regarding the legality of the continuance of the occupation.

39 See, e.g., Noone, Michael F., ed. Selective Conscientious Objection: Accommodating Conscience and Security (Boulder, Colarado, Westview Press, 1989)Google Scholar.

40 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); Welsh v. United States, 398 U.S. 333 (1970); Gillette, supra n. 30. For an assessment of this jurisdiction see Moskos and Chambers, supra n. 4; Lindenbaum, Matthew G., “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 237Google Scholar; Greenawalt, Kent, “All or Nothing at All: The Defeat of Selective Conscientious Objection,” (1971) Supreme Court Review 31Google Scholar; Malament, David “Selective Conscientious Objection and the Gillete Decision,” (1972) Philosophy and Public Affairs 363Google Scholar.

41 Zonshein, supra n. 23.

42 Ibid, at 14.

43 Ibid, at 14.

44 Ibid, at 15.

45 For a description of the IDF's policy regarding such types of refusals see supra n. 22.

46 H.C. 5370/97, Sa'adia v. The Minister of Defense (unreported case); H.C. 1452/02, Sa'adia v. The Minister of Defense (unreported case); Dowty, Alan, The Jewish State: A Century Later (Berkeley, University of California Press, 1998) 213Google Scholar; Kretzmer, David, The Legal Status of the Arabs in Israel (Boulder, Westview Press, 1990) 125Google Scholar; Aboria, Amer, “Civil Service to Arabs in Israel” (1995) 37 The New East 224 [Hebrew]Google Scholar; Saban, Ilan, “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]Google Scholar; Jabarin, Hasan, “Towards Critical Accounts of the Palestinian Minority: Citizenship, Nationality and Feminism in Israeli Law” (2000) 9 Plilim 53 [Hebrew]Google Scholar.

47 See Postponing Military Service of Yeshiva Students Act, 2002. See also H.C. 3267/97, Rubinstein v. The Minister of Defense, 52(5) P.D. 481; Sapir, Gideon, “Conscription of Yeshiva Students to the IDF: A Proposal of the Relevant Normative Considerations” (2001) 9 Plilim 217 [Hebrew]Google Scholar.

48 See, e.g., The Contract between the IDF and Israeli Society: The Conscription (Jerusalem, IDI publications, 2001)Google Scholar.

49 Note that I do not argue that in the latter cases the objectors' freedom of conscience is not infringed if they do not earn an exemption from the duty to obey the norm they deeply oppose. The argument is that in these cases the relative weight of the competing interests is different than that in the first cases, such that the scope of protection of the freedom of conscience in the latter cases is narrower.

50 Rubinstein, supra n. 47.

51 This term is based on Justice Stone famous footnote 4 in United States v. Carolene 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”. See, e.g., Lusky, “Footnote Redux: A Carolene Products Reminiscence,” (1982) 82 Columbia Law Review 1093Google Scholar.

52 Rawls, supra n. 26, at 324.

53 See Sheleff, supra n. 5, at 25–28. See also Walzer, Michael, Obligations: Essays on Disobedience, War, and Citizenship (Cambridge, Mass., Harvard University Press, 1970)Google Scholar 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”.

54 Rawls, supra n. 26, at 321.

55 Ibid, at 321.

56 Ibid, at 321.

57 Legitimizing acts of refusal is expected to induce justified refusals as well. However, as was argued in Part II above, this outcome cannot justify tolerating refusals.

58 See, e.g., Lewinsohn-Zamir, Daphna, “Consumer Preferences, Citizen Preferences, and the Provision of Public Goods,” (1998) 108 Yale Law Journal 377, at 391–399CrossRefGoogle Scholar; Kerr, Norbert L. “Illusions of Efficacy: The Effects of Group Size on Perceived Efficacy in Social Dilemmas” (1989) 25 J. Experimental Soc. Psychol. 287CrossRefGoogle Scholar; Dawes, R., de Kragt, A. Van and Orbell, J., “Cooperation for the Benefit of Us – Not Me or My Conscience” in Mansbridge, J. J., ed. Beyond Self-Interest (Chicago, University of Chicago, 1990) 97Google Scholar; Fehr, E. and Fischbacher, U., “Why Social Preferences Matter – The Impact of Non-Selfish Motives on Competition, Cooperation and Incentives” (2002) 112 Econ. J. 478CrossRefGoogle Scholar.

59 See, e.g., Hall, Robert T., The Morality of Civil Disobedience (New York, Harper and Row, 1971) at 131Google Scholar.

60 See, e.g., Michelman, Frank I. “The Constitution, Social Rights and Liberal Political Justification,” (2003) 1 Oxford International Journal of Constitutonal Law 13, at 32–33Google Scholar.

61 See, e.g., Lewinsohn-Zamir, supra n. 58, at 396–402; Tyran, J.R. and Feld, L.P., “Tax Evasion and Voting: An Experimental Analysis” (2002) 55 Kyklos 197Google Scholar; Kahan, D.M., “Reciprocity, Collective Action, and Community Policing” (2002) 90 California Law Review 1513CrossRefGoogle Scholar.

62 See in this respect Rawls, supra n. 26 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”.

63 Note that I do not argue that one cannot draw the line between legitimate “political” objections and illegitimate ones, based on the extent of the actor's (conscientious) objection to the relevant norm. The argument is that given that the public perception is that the dominant purpose of such acts of refusal is a “political” one, this distinction is an exceedingly fine one from the perspective of would-be objectors.

64 See section III.B.2 below.

65 As indicated by Moskos and Chambers, supra n. 4, 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)”. For the German experience see also Kuhlmann, Jurgen and Lippert, Ekkehard, “Conscientious Objection as Social Welfare” in Moskos, Charles C. and Chambers, John W. II, eds. The New Conscientious Objection: From Sacred to Secular Resistance (New York, Oxford University Press, 1993) 98, at 100Google Scholar.

66 See, e.g., Chambers, supra n. 1, 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”.

67 In the Zonshein case, supra n. 23, 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”.

68 See Walzer, supra n. 53, at 137. See also infra n. 81 and 88.

69 See, e.g., Raz, supra n. 26, at 286. 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 Gavison, Ruth, Human Rights in Israel (Tel-Aviv, The Ministry of Defense, 1994) at 48–49Google Scholar; Bleich, David J., “The Physician as a Conscientious Objector” (2002) 30 Fordham Urban Law Journal 245Google ScholarPubMed.

70 The IDF is widely perceived, as are other armed forces of democratic states, as a nonpolitical 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). See A.B. 92/03, Mofaz v. The Head of the Central Committee of the Elections to the Sixteenth Knesset (unreported case). 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.

71 See in this respect supra n. 22.

72 See, e.g., Gillette supra n. 30, 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”.

73 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, supra n. 47.

74 Rawls, supra n. 26, at 322.

75 For a description of this practice see supra n. 19.

76 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, supra n. 22, at 241–247.

77 See, e.g., Rawls, supra n. 26, 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”.

78 Ibid., at 312. See also Walzer, supra n. 53 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”.

79 See Raz, supra n. 26, at 276.

80 Rawls, supra n. 26, at 328. See also Avineri, Shlomo, “Obedience and Democracy” in Weinstein, Yehoshua, ed. Disobedience and Democracy (Jerusalem, Shalem Publishing, 1998) 165 [Hebrew]Google Scholar.

81 Walzer, supra n. 53, at 137. See also ibid., 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”.

82 Gans, Chaim, “Right and Left: Ideological Disobedience in Israel,” (2002) 36 Israel Law Review 19CrossRefGoogle Scholar. For a similar view in a more general context see Hall, supra n. 59 at 141–151.

83 E.g., Kugler, supra n. 22, at 216.

84 See Gans, supra n. 35.

85 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.

86 Rawls, supra n. 26, at 327. See also Sheleff, supra n. 5, at 39.

87 In such a case, the condition that “past actions have shown the majority immovable or apathetic, further attempts may reasonably be thought fruitless” (Rawls, supra n. 26, at 328) is met.

88 Walzer, supra n. 53, 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.

89 See, e.g., Rawls, supra n. 26, at 308–318.

90 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, supra n. 1 at 17 (Justice Beinisch). See also ibid., 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”.

91 This was the case with the refusal of 46 pilots to participate in combat activities in the Occupied Territories. See, e.g., Benyamini, Ran, “Heavens did not Fall: The Media Coverage of the Refusenik Pilots,” (2003) 47 The Seventh Eye 23 [Hebrew]Google Scholar.

92 Rawls, supra n. 26, at 338. See also Hall, supra n. 59, at 131.

93 See, e.g., Nimmer, M.B., “The Meaning of Symbolic Speech under the First Amendment,” (1973) 21 UCLA Law Review 29Google Scholar.

94 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”.

95 C.A. 5086/97, Ben-Hor v. Tel-Aviv Municipality, 51(4) P.D. 625, at 631 (Justice Goldberg). Compare Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1983).

96 For a similar view see Sheleff, supra n. 5, at 136–139; Gavison, supra n. 69, at 53–55; Singer, Peter, Democracy and Disobedience (Oxford, Clarendon Press, 1973)Google Scholar; Dworkin, supra n. 5.

97 See Walzer, supra n. 53, at 132: “Conscientious objection in its secular form is the natural product of political pluralism”.