¹ Gans, Chaim, “Right and Left: Ideological Disobedience in Israel,” (2002) 36 Israel Law Review 19CrossRefGoogle Scholar.

² This was contained in an opinion and supplementary opinion given by us to the Military Advocate General, which were submitted by the Military Prosecution to the Supreme Court in H.C. 7622/02, Zonshein v. Judge Advocate General 57(1) P.D. 726. See also the Supreme court English Translation in Supreme Court “Zonshein v. Judge Advocate General,” (2002) 36 Israel Law Review 1. The citations below refer to the English translation in this issue.

³ Thus, for example, we shall not deal with Section TV. C. of his article, entitled “Reducing Damages”, as the argument attacked by Gans in this section does not establish our position – it rather defends it from the point of view of the person refusing to serve himself. Likewise, we shall not deal with the justification for the war into which Israel has been drawn in recent years or with Gans's erroneous understanding of our argument in that regard. These important issues (on which we do have an opinion) diverge from the main objective of this article, namely, to present the distinctions relating to conscientious objection itself.

⁴ Rawls, John, A Theory of Justice (Cambridge, 1971) 363–371Google Scholar; see also Raz, Joseph, “The Right to Civil Disobedience,” in Menuchin, Ishai and Menuchin, Dina, eds. The Limits of Obedience (Tel Aviv, The “Yesh Gvul” Movement and Siman Kri'a Books, 1985), 51Google Scholar. [Hebrew].

⁵ Raz, supra n. 4, at 51.

⁶ Rawls, supra n. 4, ibid.

⁷ Walzer, MichaelObligations: Essays on Disobedience, War and Citizenship (Cambridge, Mass., Harvard University Press 1970) 5.Google Scholar

⁸ Heyd, David, “Objection – Political or Conscientious (or: Is there a Border between Civil Disobedience and Conscientious Objection)?” in Menuchin, Yishai, ed., Democracy and Obedience (Jerusalem, Siman Kria, 1990) 87–89Google Scholar. [Hebrew]

⁹ Gans, Chaim, Obedience and Refusal (Tel Aviv, Hakibbutz Mamuechad, 1996) 120–125Google Scholar [Hebrew].

¹⁰ “No, facts are precisely what there is not, only interpretations. We cannot establish any fact ‘in itself’ […] In so far as the word ‘Knowledge’ has any meaning, the world is knowable; but it is interpretable otherwise, it has no meaning behind it, but countless meanings – ‘Perspectivism’.” See Nietzsche, Friedrich, “The Will to Power” Ludovici, Anthony M., trans, in Levy, Oscar ed. The Complete Works of Friedrich Nietzsche, (New York, New York Gordon Press, Reprint Edition 1974) Vol. 14, Aphorism 15Google Scholar.

¹¹ Searle drew a distinction between “brute facts” and “institutional facts” and stated that “institutional facts” are indeed facts, but that their existence is based upon the presence of a certain social organization. See Searle, John R., Speech Acts: An Essay in the Philosophy of Language (London: Cambridge University Press, 1994) 50–51.Google Scholar

¹² Hughes, John, The Philosophy of Social Research (London, Longman, 2nd ed. 1990) 92.Google Scholar

¹³ Weber, Max, The Theory of Social and Economic Organization (trans. Henderson, A. M.Parsons, T., New York, The Citadel Press, 1964) 101.Google Scholar

¹⁴ Defense Service Law (Consolidated Version) 1986, the margin caption of which reads “Power to exempt from or defer service”, provides: “The Minister of Defense may, by order, if he sees fit to do so for reasons connected with the size of the regular forces or reserve forces of the Israel Defense Forces, or for reasons connected with the requirements of education, security, settlement or the national economy or for family or other reasons (1) exempt a person of military age from the duty of regular service or reduce the period of his service; (2) exempt a person of military age from the duty of reserve service for a specific period or absolutely”. The Supreme Court has held on a number of occasions that the term “other reasons” includes, in this context, reasons of conscience: H.C. 4062/95, Epstein v. Minister of Defense (unpublished 26.7.95): H.C. 2700/96, Barnovsky v. Minister of Defense (unpublished 29.4.96); H.C 1380/02, Ben-Artzi v. Minister of Defense, 56(4) P.D. 476; Zonshein, supra n. 2, at 8.

¹⁵ See Bronavsky and Ben-Arzi, supra, n. 14.

¹⁶ See www.shministim.org.

¹⁷ (The emphasis is ours, A.S., R.S.). A number of Arab newspapers and the Palestinian news agency WAFA published an open letter which stated, inter alia:”… we, the refusers to serve, take responsibility for what is happening in Israeli society by this declared act of opposition…”.

¹⁸ In a pamphlet distributed by the movement “Courage to Refuse”, the following statements appear: “prison is not a nightmare, it may even be an amusing and enlightening experience[…] We[…]shall offer support and helpful information (during your stay in prison as a result of the refusal), transport for visits to the prison and help in emergencies[…] You are afraid to go against the stream, and do not understand that the stream is flowing downwards, into the abyss[…]you are the occupation[…]we acted because no other choice remained”.

¹⁹ From the judgment of the Military District Court, Central Command District, headed by the President of the Court, Col. Avi Levy: MT 151/03, The Military Attorney General v. Matar, at. 19 [hereinafter “the Five Refusniks”].

²⁰ Ibid., at p. 28.

²¹ “Needless to say the same act can be both one of conscientious objection and of civil disobedience. Many of our actions are over-determined in the sense that we have plural and various motives for them”. Excerption: a letter written by Prof. Yosef Raz to Adv. Sfarad in relation to the Zonshein case and was submitted to the High Court of Justice, supra n. 2.

²² Gans, supra n. 1, at fn. 45.

²³ Also see Alon Harel “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”, p. 7 http://mishpatim.mscc.huji.ac.il/newsite/segel/harel/pub/brief2.pdf

²⁴ For a review of the literature on this matter, see particularly Robinson, Paul H., “Stealing the Bomb – The Nature of Justifications”, (1999) 22 Tel Aviv University Law Review 65Google Scholar. [Hebrew], as well as the following sources, mentioned there. For the English discussion, see Gladstone William (1984) 78 Cr. App. R. 276; Dadson (1850) 4 Cox C.C. 358; Thain (1985) 11 NI 31. The American Model Penal Code makes use of formulae of “reason” in defining all the justification defenses: the perpetrator is justified if he believes that his acts are necessary for the purpose of the defense (Model Penal Code § 3.02(1), § 3.03(3)(a), § 3.04(1), § 3.05(l)(b), § 3.06(1) and § 3.07(1)). See also Corrado, Michael, “Notes on the Structure of a Theory of Excuses,” (1991) 82 Journal of Criminal Law and Criminology 465, at 489CrossRefGoogle Scholar, with attention to the argument for viewing the mental element as an essential component of the defense; Greenawalt, Kent, “The Perplexing Borders of Justification and Excuse,” (1984) 84 Columbia Law Review 144CrossRefGoogle Scholar, emphasizing that modern laws usually require subjective belief in the existence of a defense of justification; LaFave, Wayne and Scott, Austin, The Criminal Law (St. Paul, Minnesota, West, second edition 1986) 685Google Scholar arguing that in order to enjoy the benefit of the defense it is necessary to act upon achieving the particular purpose stated there; Hogan, Brian, “The Dadson Principle,” (1989) Criminal Law Review 679, 680Google Scholar. See the contrary opinion of Paul Robinson in his above article as well as Robinson, Paul H., “Competing Theories of Justification: Deeds vs. Reasons” in Simester, A & Smith, A.T.H., eds., Harm and Culpability, (Oxford, Clarendon Press, 1996) 45–70.CrossRefGoogle Scholar

²⁵ Thus, for example, a person defending a charge of assault under Section 34(m) of the Israel Penal Law, 1977, on the ground that he is a police officer and that the assault enabled him to implement his power of arrest, enjoys a defense of justification, and therefore whoever helps him is also justified. In contrast, a person defending a charge of assault under Section 34(h) of the Israel Penal Law, 1977, on the grounds of insanity, may only enjoy the benefit of an excuse and therefore anyone assisting him is not exempt from liability. This distinction has additional diverse ramifications. Thus, for example, the person being assaulted by the assailant police officer is not entitled to defend himself in accordance with the parameters of self-defense set out in Section 34(j) of the Law, but at the most in accordance with the more stringent parameters of the defense of necessity set out in Section 34(k). In contrast, a person attacked by an insane attacker is entitled to defend himself in accordance with the parameters of self-defense.

²⁶ Gans, supra n. 1, fn. 45.

²⁷ The Military Court stated in the verdict given in the case of the five persons refusing to serve supra, n. 19: “We were willing to assume that alongside this primary motive, the accused are also driven by conscientious revulsion at belonging to the IDF, which carries out, in their opinion, acts which should be condemned as being manifestly immoral and even tainted by illegality[…] We pointed out that this conscientious motivation, even if it is perceived as having motivated the refusal of the accused, does not, as a matter of Israeli law, as this has been delineated by the Supreme Court, comprise a grounds for an exemption from service, and therefore refusal to serve, ensuing from such a motivation, even if it is sincere, genuine, and even exclusive in nature – is illegal.” The court made use of this determination as a ground for a more lenient sentence:“[…] we cannot ignore the fact that the accused are all infused by belief in the justice of their way and in the defectiveness of the way followed by the state, under its current leadership. We have said that their revulsion at service in the army is also conscientious, and therefore, it is clear that compliance with the draft in disregard of the command of their conscience is for them not a simple act.” However, The three judges were divided amongst themselves on the degree of influence this consideration ought to have on the punishment of the convicted defendants.

²⁸ Gans, supra n. 1, at 48. He thus argues that “a humanist can justify the objection to serve in the Territories and simultaneously justify the punishment of the objectors. This is possible if the act of objection is performed not (or not only) as an act of conscientious objection, but also as an act of civil disobedience, i.e. if the act is not only motivated by principled refusal to participate in the crimes of the Occupation, but also serves as a means of attaining political goals such as protesting the government's occupation policy, interfering with it or even overturning it”.

²⁹ Ibid, at 49.

³⁰ It should be pointed out that this statement is equally true of the arguments of Raz and Harel.

³¹ Gans, supra n. 9, Ibid.

³² Heyd, supra n. 8, at 96–97.

³³ Ibid., Heyd proposed a criterion for the distinction between an act of civil disobedience and an act of conscientious objection: “the more selective the refusal and the more specific its boundaries, the more likely it is that it belongs to the sphere of conscientious objection. In contrast, global refusal is by nature an expression of political protest, the purpose of which exceeds the boundaries of preserving the blamelessness of the individual.” (p. 94). We are not convinced that Heyd's criterion is successful, as prima facie it follows from it that a pacifist performs an act of civil disobedience. In any event, Heyd's effort delineates the correct path in the opinion of anyone who believes that such a philosophical distinction is indeed of value: an attempt to examine motivations in accordance with the practices of their subjects.

³⁴ “If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has his foot on the tail of a mouse and you say you are neutral, the mouse will not appreciate your neutrality.” Archbishop Desmond Tutu, quoted in US Catholic, July 2003, p. 6. www.uscathohc.org.

³⁵ It would seem that at least in one case the Supreme Court has identified conscientious objection with private conscientious objection and ignored “moral conscientious objection” (per President Barak in Zonshein, supra n. 2, p. 8–10). Likewise, in the verdict delivered by the Military Court in the Five Refusniks, supra n. 19, there is a reference to the distinction between civil disobedience and general conscientious objection, without referring to the distinction between the two types of conscientious objection. The sole sub-distinction drawn by the Military Court is that proposed by Gans, namely, between civil disobedience for purposes of persuasion on one hand, and civil disobedience for purposes of coercion on the other hand, see Gans, supra n. 9, at 121.

³⁶ The Military District Court stated:“[…]our feeling was that the accused made an effort to hide their intention to bring about a change in public opinion through their refusal and encourage many youths[…] to take steps, bringing about opposition to government policy and thereby its frustration”: The Five Refusniks, supra n. 19, p. 72.

³⁷ This strategy of defense is surprising, as Gans himself uses a different perception of the principle of generalization in a criticism, which he directs against Shlomo Avineri. In answer to Avineri's argument that selective refusal is flawed in that it does not meet the test of universality, Gans offers the following generalization: “[Objectors] can refuse to obey the laws prescribing […] acts of oppression in reliance upon a universal rule, applicable to every person, which forbids participation in acts of conquest and oppression of other people even if the majority supports such acts. This rule is universal because it makes a demand upon every person to disobey laws that mandate acts of oppression: Gans, supra n. 1, at 27.

³⁸ Gans, supra n. 1, at 52.

³⁹ Ibid., at 52.

⁴⁰ Ibid.,at 53.

⁴¹ Cxy – x performs act y. (Ǝ x ) – there is x that… (∀ x) – all the x's are… □ – it is a obligatory that…

⁴² For a founding discussion of the issue of “dirty hands”, see Walzer, Michael, “Political Action: The Problem of Dirty Hands,” (1973) 2(2)Google ScholarPhilosophy and Public Affairs 160, 180.

⁴³ Significantly, not all those refusing to serve relied on this type of moral selfishness. Adam Maor, one of those refusing to serve who was convicted in the Five Refusniks (supra n. 19, at 25) testified before the Military Court that “he was not refusing with the intention of changing the policy, he would have wanted everyone to think in accordance with his values, and he would have been happy if, hypothetically, had everyone refused.”

⁴⁴ Heyd, supra n. 7, at 92.

⁴⁵ Gans, supra n. 1, fn. 50 at 52.

⁴⁶ Ibid, at 53–54.

⁴⁷ Gans, supra n. 1, at 55.

⁴⁸ This modification was suggested to us by Dr. Itzhak Benbaji, and we are grateful to him for this.

⁴⁹ We are defining here the terms “to serve” and “to refuse” so that service and refusal are entirely mutually exclusive.

⁵⁰ One of the criticisms raised against using the Saul Kripke's semantics of possible worlds to model deontic logic, is that it follows from this semantic (in Kripke's S4 and S5 systems) that there is “a duty to ‘x or not-x',” [Hintikka, Jaako, “Some Main Problems of Deontic Logic” in Hilpinen, Risto, ed., Deontic Logic: Introductory and Systematic Readings (Dordrecht, D. Reidel, 1971) 58Google Scholar.] This very statement (that everyone is obliged to do “x or not x”) expresses, so it is asserted, a profound lack of understanding of the concept of duty.

⁵¹ See: Sagi, Avi, Kirkegaard, Religion and Existence, The Voyage of The Self (Amsterdam, Rodopi, 2000) 75–78Google Scholar. A. G. Cohen voiced a similarly constructed criticism against the moral theory of Rawls. In his view even a complete scoundrel may satisfy the criteria of Rawlsian justice (for example, by voting for a party which supports equality at the same time as gathering riches at the expense of others). See Cohen, Gerald A., “Where the Action is: On the Site of Distributive Justice,” (1997) 26(1) Philosophy and Public Affairs 3, at 30.CrossRefGoogle Scholar

⁵² The Indian term satyagraha means “to adhere to truth”. Mahatma Ghandi used this term as the key principle of his political conception. Ghandi stressed that adherence to the truth expresses recognition of the fact that the truth is a supreme good, which cannot be achieved by violence, and that it is therefore necessary to apply to people's reason and heart prior to the struggle to achieve it. See Weinstein, Yehoshua, ed. Disobedience and Democracy (Jerusalem, Shalem Publishers, 1998) 112Google Scholar. [Hebrew]

⁵³ It would seem that the name of the movement “Courage to Refuse” expresses the willingness of its members to sacrifice themselves. In the pamphlet distributed by them they wrote: “It is important to remember and emphasize that the refusal does not ensue from alienation from society and the state, but rather from involvement and willingness to sacrifice[…] it is not easy to stand in front of friends from your unit[…] on the other hand, the willingness to pay the price actually leads to great admiration on the part of comrades in the unit” (our emphasis, A.S. & R.S.).

⁵⁴ According to Michele Foucault, heterotopias are “a type of place outside of all places, even though they are in fact localizable.” Excerption: Foucault's, Michel lecture delivered to the Architectural study Group on 14 03 1967,5 Architecture, Movement, Continuité 46–49 (1984).Google Scholar

⁵⁵ Thoreau, Henry David, Walden; And, Resistance to Civil Government: Authoritative Texts, Journal, Reviews, and Essays in Criticism (New York, W. W. Norton & Company, 1992) 37.Google Scholar

⁵⁶ King, Martin Luther, Letter from a Birmingham City Jail (16 04, 1963)Google Scholar. The letter contains many references to a willingness to sacrifice, for example: “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law”.

⁵⁷ In Kripalani, Acharya J B., ed. Collected Works of Mahatma Ghandi: All Men Are Brothers. (Ahmedabad: Navajivan, 1958) 447Google Scholar, Ghandi continues: “Although non-cooperation is the main weapon in the armory of Satyagraha, it should not be forgotten that it is after all only a means to secure the cooperation of the opponent consistently with truth and justice”. Singer states that: “Disobedience, and especially disobedience followed by acceptance of punishment, may make the majority realize that what is for it a matter of indifference is of great importance to others” (Singer, P. “Disobedience as a Plea For Reconsideration”, in Bedau, Hugo Adam, ed. Civil Disobedience in Focus (London, Routledge 1994) 122.Google Scholar

⁵⁸ This position is also accepted by some of those refusing to serve themselves. Thus, for example, Shomri Zameret stated, prior to entering prison: “The Court granted us a right when it sent us to prison, because the protest is effective when it is backed by a personal price” [Ha'aretz, 21.1.04, B3 “Female refusniks are not sent to prison – is this a right or discrimination?” by Lily Galilee]. The women who refused to serve claimed that the fact that the army was less inclined to send them to prison undermined their ability to engage in political struggle. Thus, for example, Noah Levy stated: “Our refusal is a political act to change the consensus, and the boys say that if their refusal becomes an offence, their statement provides a greater kick, is more painful. They are right”. [ibid.].

⁵⁹ Military Court 3/57 Military Prosecutor v. Malinki, 17 D. Ct. 90, pp. 213–214.

⁶⁰ In the document “The IDF Spirit”, in which the General Staff sets out the values guiding the IDF and its activities, and which is distributed to every male and female soldier in the army, the principle of “human dignity” appears in the list of “fundamental values”. The text describing this principle states: “Every human being is valuable regardless of his or her origin, religion, nationality, gender, status or position.” According to the document, it is this value which gives rise to the doctrine of the “Purity of Arms”, in respect of which it is stated: “The IDF servicemen and women will use their weapons and force only for the purpose of their mission, only to the necessary extent and will maintain their humanity during combat.”