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Professor Chaim Gans
Tel Aviv University, The Buchmann Faculty of Law
JURIST Guest Columnist

The Supreme Court of Israel recently rejected a petition filed by several reserve soldiers to exempt them from military service for reasons of conscience. These soldiers belong to Courage to Refuse, which is the main movement of objectors to military service in the Occupied Territories in the current intifada. Justice Barak, President of the Supreme Court, wrote the main opinion. In the reasoning that led him to the decision, following Thurgood Marshall痴 reasoning in the American Gillette case, he compares universal and selective conscientious objection to military service. Barak invokes four arguments to distinguish between these two kinds of refusal.

Before I reject these arguments, it should be noted that reading Barak痴 opinion without an awareness of some other facts about Israeli reality, one might be under the impression that universal conscientious objection is currently tolerated by the IDF (Israel Defense Forces), at least when compared with the selective objection. However, this is not the case. Several months ago, a senior disciplinary officer (General Gil Regev, head of the IDF痴 human resources division) sentenced 19-year-old conscientious objector Yoni Ben Artzi to imprisonment after he had already served six previous imprisonment terms for conscientious objection to military service. By the end of this seventh imprisonment period, Ben Artzi will have spent almost 200 days in jail. It now appears that he will be imprisoned over and over again for his pacifist views. In the IDF痴 history, there have been very few cases of universal conscientious objectors. Unlike Ben Artzi痴 case, they were sentenced to no more than two or three periods of 28 days each, and were then totally exempt from military service.

However, let me return to Barak痴 reasoning in the Courage to Refuse case. As noted above, he presents several arguments for distinguishing between universal objection and selective objection. Firstly, selective objection is broader than universal objection, and 塗as implications on security considerations, since the group in question tends to grow. Even if this claim is true, it cannot serve as a sufficient basis for preferring security considerations over the value of freedom of conscience as long as the actual number of selective conscientious objectors does not in fact jeopardize the IDF痴 ability to do its job. Since the outbreak of the current intifada, only a few hundred soldiers -- not thousands and certainly not tens of thousands -- have refused to serve for reasons of conscience. Obviously, this number does not really compromise the army痴 ability to perform the tasks it is assigned. This point is especially cogent in the current Israeli context, in which tens of thousands of potential soldiers are granted exemptions merely for being Ultra-Orthodox yeshiva students.

Barak痴 second argument for distinguishing between selective and universal objection is that it is difficult to draw the line between someone who sincerely claims to be a conscientious objector and someone who objects to a specific policy of a particular government. I do not quite understand this claim. After all, one could be sincere in one痴 conscientious objection and at the same time object to a particular government痴 policies. I therefore fail to see why it is at all necessary to distinguish between a conscientious objector and someone who objects to the specific policy of a particular government. In order for one to qualify as a conscientious objector, three conditions must be fulfilled. Firstly, the conscientious objector must believe that the policy that he objects to deeply contradicts values to which he ascribes great importance. Secondly, there must be clear indication that his refusal to take part in the implementation of this policy is indeed in order to appease his conscience. Thirdly, if his refusal is also intended to achieve the political goal of changing the policy to which he objects, and not only to avoid situations that might be inconsistent with his conscience, he must believe that going along with his conscience would have constituted a sufficient reason for his refusal even if he had no political goals. A legal system that respects the value of freedom of conscience should establish mechanisms that would allow people who claim to be conscientious objectors to prove that they do indeed meet these conditions. The fact that all these conditions pertain to the motives of those refusing military service means that it will always be hard to establish and prove these motives beyond reasonable doubt. However, this predicament is not unique to conscientious objection.

Barak presents his third argument by quoting Justice Thurgood Marshall: 甜T]here is considerable force in the government痴 contention that a program of excusing objectors to particular wars may be impossible to conduct with any hope of reaching fair and consistent results. In his article 全elective Conscientious Objection and the Gillete Decision (Philosophy and Public Affairs 1 (1972), 363), David Malament explains why there is no basis to these fears. His criticism of Marshall痴 argument applies even when quoted by Barak and I shall not repeat it here.

Barak痴 fourth argument derives from two fears. One fear is that recognizing selective refusal in a pluralistic society such as Israeli society might loosen 甜what binds] us together as a people. The second fear is that this recognition might turn the Israeli army into 殿n army of militias, consisting of different units, each one permitted to act in certain areas and forbidden to act in other areas. According to Barak, 添esterday, the objection was against serving in South Lebanon. Today, the objection is against serving in Judea and Samaria. Tomorrow, the objection will be against evacuating particular settlements. The fear that Israeli society is loosing its sense of solidarity is not groundless, but it does not necessarily entail that recognizing selective conscientious objection might accelerate this process. Whether or not this occurs in the future is an empirical question. Just as the recognition of selective conscientious objection might have an adverse effect on social cohesion in Israeli society, it might also have the opposite effect by reducing the antagonism that people who strongly disagree with government policy might develop towards society. The second fear indicated by Barak, namely, that recognizing selective refusal might transform the IDF into many smaller armies, is also groundless. The fact that there are people in Israel whose conscience forbids them to serve in the Occupied Territories, and on the other hand, people whose conscience forbids them to assist in any future coercive evacuation of settlers from the Occupied Territories does not mean that the current composition of the IDF痴 units necessarily reflects this conscientious-ideological division, so that each unit only acts within the limits of the respective conscience of the soldiers in it. Israeli soldiers should be and are for the most part distributed in various army units irrespective of their beliefs. The IDF can therefore afford to show some tolerance towards those soldiers whose conscience forbids them from serving in the Occupied Territories, as well as towards soldiers whose conscience might forbid them to participate in any future evacuation of settlers from the occupied territories. The IDF can afford to show some tolerance towards both groups as long as the total number of soldiers who refuse to obey orders does not compromise the IDF痴 ability to execute the policy that the elected government has ordered it to execute.

Although Barak痴 decision is based on problematic arguments, I believe that he has good second-order reasons for acting on these arguments. The members of Courage to Refuse also have good second-order reasons for wanting him make this decision. Although I have no doubt that the members of Courage to Refuse are conscientious objectors who as such deserve to be exempted for their objection, it is clear that their objection also constitutes an act of civil disobedience. The fact that they will be imprisoned enhances this aspect of their refusal. Barak痴 decision therefore aids them in this matter. Moreover, it seems to me that their appeal to the court in the knowledge that the anticipated punishment for refusing to obey the command to serve in the occupied territories will not be particularly severe (usually 28 days in prison), cannot be rationally explained unless they also sought to draw public attention to the civil disobedience component of their refusal. Since its own precedents do not bind the Israeli Supreme Court, the court痴 rejection of the appeal made by members of Courage to Refuse makes it possible for them to bring matters of this sort to court again in the future. Thus, the Supreme Court can continually be used as a tool for drawing public attention to refusals as acts of civil disobedience. If Barak does indeed believe that refusing to serve in the Occupied Territories is a justified act of civil disobedience, then the latter point gives him a second-order reason to reject the appeal of Courage to Refuse despite the fact that he has produced no good first-order reasons to do so. However, he has an even more important second-order reason for reaching his decision. This reason derives from the politics of the judiciary vis--vis the executive and legislative branches of government. Since the decision under discussion supports the positions of the IDF and the government, it may help the court appear balanced in the future, when it has to prevent more serious violations of human rights by the government. I hope the court will do this with greater determination than it has done so far. Yoni Ben Artzi痴 case presents an example of more serious violation of human rights. Perhaps the court痴 current decision to side with the IDF and the government in the case of Courage to Refuse will allow it in Ben Artzi痴 case (should it be brought to court again) to take a position that is contrary to that of the IDF and to put an end to the cruelty from which he is currently suffering.

Chaim Gans is an Associate Professor of Law at Tel Aviv University.

May 23, 2003


JURIST Guest Columnist Chaim Gans received his LL.B. from Hebrew University, B.A. and M.A. from TAU, and D.Phil. from University College, Oxford. He teaches legal, moral and political philosophy. His books are: Philosophical Anarchism and Political Disobedience (Cambridge, Cambridge University Press, 1992), which appeared also in Hebrew and is about to appear in the Korean language. Liberalism and Cultural Nationalism (Cambridge University Press, forthcoming 2002). His recent articles are: 哲ationalism and Immigration, 1 Ethical Theory and Moral Practice (1998), 159-180. 哲ational Self-Determination a Sub Statist Conception, 13 Canadian Journal of Law and Jurisprudence (2000), 185-205. 典he Liberal Foundations of Cultural Nationalism, 30 Canadian Journal of Philosophy (2000), 441-466. 滴istorical Rights: The Evaluations of Nationalist Claims to Sovereignty, 29 Political Theory (2001), 58-79. 典he Israeli Ban of the Performance of Wagner, Critical Quarterly (forthcoming).