The freedom of conscience and sociological perspectives on dilemmas of collective secular disobedience: the case of Israel


The freedom of conscience and sociological
perspectives on dilemmas of collective secular
disobedience: the case of Israel

ALEK D. EPSTEIN

This paper analyses the transformation of the conscientious objection patterns that occur in a large
number of countries, and Israel (discussed in this paper more profoundly) is one of them. Para-
doxically, paci� st conscientious objection, which often lacks acknowledgement by the civil society, has
received legal recognition in various countries, whereas conscientious disobedience, which is usually
justi� ed by a large number of ‘legitimate’ civil society organizations and groups, as a rule is not
assigned any recognized status by the legal authorities. The broadening of conscientious disobedi-
ence and the rise in a number of civil society groups that evidently express their disagreement with
the state authorities’ current policy certainly demonstrate a decline in the extent of the legitimacy of
the state and its institutions. The changing sociopolitical reality and the transformation of conscien-
tious objection require a rede� nition of the phenomenon of conscientious disobedience by the legal
and legislative authorities.

Introduction

Being one of the basic liberties of the individual, the right to freedom of conscience is thus
represented in all international conventions concerning human rights. It is unlikely,
however, that any acts of collective (and not only individualistic) secular (and not only
religious) objection can be advocated in the light of the principle of the freedom of
conscience. Moreover, the connection between the freedom of conscience and other rights,
such as the freedom of thought, as well as the connection between conscientious objection
and civil disobedience are debatable as well. Michael Walzer has mentioned that it is
illogical to � nd a secular state allowing conscientious objection on religious grounds only.
The transformation of the conscientious objection patterns takes place in a large number
of countries, and Israel (discussed in this paper more profoundly) is one of them. Contem-
porary conscientious objection is likely to be secular rather than religiously based, to be a
widespread rather than a marginal occurrence, and to include service people in uniform
as well as those who avoid conscription.

In this paper I would like to strengthen the argument that John Rawls’s and Joseph
Raz’s distinction between conscientious objection and civil disobedience, which often serves
as an ostensibly legitimate basis for ignoring secular patterns of conscientious disobedience,
is very problematic. Paradoxically, the paci� st conscientious objection, which often lacks
acknowledgement in the civil society, has received legal recognition in various countries,
whereas conscientious disobedience, which is usually justi� ed by a large number of ‘legiti-
mate’ civil society organizations and groups, as a rule is not assigned any recognized status
by the legal authorities.

JOURNAL OF HUMAN RIGHTS, VOL. 1, NO. 3 ( SEPTEMBER 2002), 305–320

Journal of Human Rights
ISSN 1475-4835 print/ISSN 1475-4843 online © 2002 Taylor & Francis Ltd

http://www.tandf.co.uk/journals
DOI: 10.1080/1475483021015655 3



I would like to claim that the broadening of conscientious disobedience and the rise in
a number of civil society groups that evidently express their disagreement with the state
authorities’ current policy demonstrate a decline in the extent of the legitimacy of the state
and its institutions. As a result, state authorities use the force of law in order to de-legit-
imize the patterns of conscientious disobedience that can really endanger their status in
society. Although religious objectors constitute only an insigni� cant minority of the total
number of conscientious objectors in any European country, in no society have the state
authorities ever recognized secular grounds before religious motives as the basis for accept-
ing conscientious objection and exempting COs from combatant military service. In order
to manage this paradoxical situation adequately, the current de� nition of conscientious
disobedience should be re-formulated. The changing sociopolitical reality and the trans-
formation of conscientious objection require the adoption of a relevant de� nition of the
phenomenon of conscientious disobedience by the legal and legislative authorities.

Freedom of conscience and the transformation of conscientious objection

Being one of the basic liberties of the individual, the right to freedom of conscience is thus
represented in all international conventions concerning human rights. Article 18 of the
Universal Declaration of Human Rights states:

Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.

A similar formulation appears in Article 18.1 of the International Covenant on Civil and
Political Rights, which was adopted and opened for signature, rati� cation and accession by
General Assembly Resolution 2200 on 16 December 1966 and entered into force in March
1976. Article 18.2 of this convention prohibits any coercion directed at deprivation of a
person’s right to have or adopt a religion or belief of his/her choice:

Everyone shall have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or in private,
to manifest his religion or belief in worship, observance, practice and teaching. No
one shall be subject to coercion which would impair freedom to have or to adopt a
religion or belief of his choice.

The recognition of the right to freedom of conscience, as it appears in the UN Declar-
ation of 1948, is quoted also in Article 9 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms, which was signed by the Foreign ministers
of the members of the Council of Europe in Rome on 4 November 1950 (and entered
into force in 1953). According to this Convention, ‘Everyone has the right to freedom of
thought, conscience and religion’. Article 12.2 of the American Convention on Human
Rights, which has been in legal force since 1978, also prohibits any oppression of persons
as a result of their faith: ‘No one shall be subject to restrictions that might impair his
freedom to maintain or to change his religion or beliefs.’ Article 27 of the American
convention is concerned with the state’s privilege to limit some human and civil rights in

306 ALEK D. EPSTEIN



case of a war or national emergency, ensuring, however, the right to freedom of conscience
even in these extreme circumstances:

In time of war, public danger, or other emergency that threatens the independence
or security of a state party, it may take measures derogating from its obligations under
the present convention . . . . The foregoing provision does not authorize any suspen-
sion of the following articles: . . .; Article 12.

Freedom of conscience is guaranteed to everyone, with no distinction as to race or nation-
ality, by the International Convention on the Elimination of All Forms of Racial Discrimi-
nation,1 which entered into force in 1969, and by the Teheran Proclamation of the
International Conference on Human Rights held in 1968. According to this Proclamation
(Article 5), every state is to guarantee the right to freedom of conscience without discrimi-
nation based on race, nationality, language or political belief:

The primary aim of the United Nations in the sphere of human rights is the achieve-
ment by each individual of the maximum freedom and dignity. For the realization
of this objective, the laws of every country should grant each individual, irrespective
of race, language, religion or political belief, freedom of expression, of information,
of conscience and of religion.

Although various countries have made great efforts to advance the freedom of conscience
in their political cultures, it seems that there is no agreement as to whether any acts of
collective (and not only individualistic) secular (and not only religious) conscientious objec-
tion can be advocated in the light of this basic principle. Moreover, the connection between
freedom of conscience and other rights, such as freedom of thought, as well as the connec-
tion between conscientious objection and civil disobedience, are debatable as well.

According to Ruth Gavizon, freedom of conscience is a particular instance of the
freedom of thought. Freedom of conscience is the freedom to hold certain opinions,
particularly of a moral nature. Commitment to freedom of conscience means that there
must be no compulsory intervention to prevent an adult from forming his/her own
responses to moral issues (Gavizon 1994: 45). At the same time, according to a more
reduced de� nition:

Despite their closeness and similarity, freedom of thought and belief is not identical
to that of conscience and religion. Freedom of thought and belief includes research
and political activities aimed at the formation of a social framework in accordance
with a general world outlook. Political activity undoubtedly has nothing to do with
freedom of conscience and religion. (Shelach 1990: 48)

Hugo Adam Bedau has even stated that civil disobedience and conscientious objection
‘differ in their primary purpose’. The primary purpose of conscientious objection ‘is not
public education but private exemption, not political change but (to put it bluntly) personal
hand-washing’ (Bedau 1991: 7). Peter Singer has presented a similar point of view: ‘The
distinctive feature of the disobedience of the person usually called a “conscientious
objector” is . . . that it is neither an attempt to force the majority to alter its decision, nor
an attempt to gain publicity, or to ask the majority to reconsider its decision’ (Singer
1974: 7).

This distinction is rooted in John Rawls’s and Joseph Raz’s de� nitions of conscientious

FREEDOM OF CONSCIENCE AND SECULAR DISOBEDIENCE 307



objection and civil disobedience. Rawls describes conscientious refusal as ‘noncompliance
with a more or less direct legal injunction or administrative order’ (Rawls 1972: 368).
Rawls’s point is that an administrative injunction or order, unlike a law, is addressed to
the objector personally and, normally at least, the refusal does not escape the notice of
the authorities. For Rawls, conscientious refusal may be grounded on an appeal to a
shared conception of justice but need not be; civil disobedience, however, must be so
grounded by definition. Raz characterizes conscientious objection as ‘a breach of law for
the reason that the agent is morally prohibited to obey it’, whereas civil disobedience is
described as ‘a politically motivated breach of law designed either to contribute directly
to a change of law or to express one’s protest against, and dissociation from, a law or
public policy’ (Raz 1979: 263). Undoubtedly, this distinction, accepted by legal authori-
ties (that often recognize only religiously predetermined patterns of conscientious objec-
tion), is rather comfortable for the state, which can grant ‘freedom of conscience’ without
feeling that its own policies are being challenged. Moreover, as Raz maintains, ‘in a liberal
state there can be no right to civil disobedience which derives from a general right to
political participation. One’s right to political activity is, by hypothesis, adequately
protected by law. It can never justify breaking it’ (Raz 1979: 273). I shall not concentrate
here on the critics of this statement in part because Raz himself mentioned that ‘a liberal
state was defined in a rather technical and narrow sense. It is simply one which respects
the right to political participation and may contain any number of bad and iniquitous
laws, and sometimes it will be the right to engage in civil disobedience to protest against
them or against bad public policies’ (Ibid., 274). I would like to argue, however, that the
distinction between conscientious and civil disobedience, which often serves as an osten-
sibly legitimate basis for ignoring secular patterns of conscientious disobedience, is, at
least, problematic.

Usually, as civil disobedience is designed to bring a change in the policy or the prin-
ciple served by the law being disobeyed, and as conscientious objection is not intended to
achieve these goals, disobedience of the latter type is not acknowledged as political. This
gives expression to an excessively narrow conception of what is political, a conception
according to which only acts of disobedience accompanied by full intentions of achieving
political results are indeed political. As has been stated by Chaim Gans (1992: 138–139):

There is no justi� cation either for this conception, or for the conclusion following
from it that conscientious objection is not political. It is dif� cult to see why acts of
disobedience, which are likely to affect the realization of the principles and goals
served or expressed by the laws being disobeyed, shouldn’t count as political even if
they aren’t intended to achieve these effects. This is especially true with reference to
conscientious objection based on an objection which is conceived of by the objector
as applying to humanity in general or at least to his fellow society members.

Moreover, disobedience which is based on such an objection is political even if it does not,
or is unlikely to, have any actual effect on the realization of the goals of the law being
disobeyed. Such disobedience is political as it is, by de� nition, based on an objection of
universal validity, and thus its performer cannot lack an interest in affecting the realization
of the goals of the law in question. Many acts of conscientious objection, at least the ones
placed at the centre of public attention in the course of the last two decades – the selec-
tive conscientious objection against wars such as that waged by the USA in Vietnam, and
that waged by Israel in Lebanon – were acts of disobedience based on objections that were,
by their very inner logic, of universal or general social validity. Due to this, and due to the

308 ALEK D. EPSTEIN



results which it was reasonable to expect of them, and which they indeed had, they were
political in nature, though they were not necessarily also acts of civil disobedience.

It was Michael Walzer who remarked that it is illogical to � nd a secular state allowing
conscientious objection on religious grounds only (Walzer 1970: 120–145). Basically,
conscience is ‘our blanket name for the personal governing principles to which a man is
ultimately committed’ (Cohen 1968: 270). Thus conscience can also be described as a form
of moral knowledge that we share not with God, but with other people – our fellow citizens,
for example, or our comrades in some movement, party or sect. Secularization of
conscience and modern individualism have been the driving forces in the exponential rise
of the resistance to military service. Religious motivation has diminished dramatically in
importance. In those Northern and Western European countries where current data are
available, religious objectors make up only a small minority of the total number of consci-
entious objectors; the percentages are remarkably similar even among different nations:
15% in The Netherlands, 18% in Germany, 14% in Norway (Moskos and Chambers 1993:
197). Walzer himself focused on secular conscientious objectors whose claims are not
merely personal but based on shared group principles and mutual engagements. Limiting
the discussion to objectors’ groups – or to individuals belonging to such groups – allowed
Walzer to justify conscientious objection by claiming that it is inconceivable to demand of
political groups in pluralist democracies to behave contrary to their most intense commit-
ments. Freedom of association virtually guarantees that certain laws will be met with
demands for exemption, or for repeal, by groups of associated individuals. Walzer comes
to the conclusion that ‘as conscientious objection in its Protestant form is the natural
product of religious pluralism, so conscientious objection in its secular form is the natural
product of political pluralism’ (Walzer 1970: 132).

For the purposes of analysis, conscientious objectors can be divided into several sub-
categories.2 On the basis of their motivation, conscientious objectors can be religious COs
(including variously those coming to their beliefs through historic peace sects, through
mainline churches, or through non-mainline denominations) or secular COs (including
those with either political or private motives). On the basis of the scope of their beliefs,
conscientious objectors can be universalistic COs, who are opposed to all wars (this is the
kind most commonly recognized by the state) or selective COs, who oppose a particular
con� ict or the use of particular weapons (primarily weapons of mass destruction and
notably nuclear weapons).

Also distinguishing one type of conscientious objector from another is one’s willingness
to cooperate with the state, speci� cally represented by the military or the government’s
conscription agency. Noncombatants are conscientious objectors willing to serve in the
military without bearing arms; typically they serve in the medical corps. Alternativists agree,
in lieu of military service, to participate in civilian alternative service in public or private
agencies; most of these COs engage in education, health, or cultural work. In many coun-
tries, willingness to perform alternative service has become increasingly the de facto
measure of the ‘sincerity’ of the conscientious objectors. In 1990, 35 states participating
in the Conference on Security and Cooperation in Europe agreed to consider introducing
alternative service for conscientious objectors in lieu of military service. Absolutists refuse to
cooperate with the authorities in any way in regard to the conscription system; they decline
to participate in alternative service programmes, even if these programmes are unrelated
to the military system. The absolutists are the COs who are most likely to be imprisoned
in modern democratic states.

It should be explicitly mentioned that the transformation of the patterns of con-
scientious objection takes place in a large number of countries (Levi and DeTray 1993).

FREEDOM OF CONSCIENCE AND SECULAR DISOBEDIENCE 309



Generally speaking, the contemporary conscientious objection ‘is likely to be secular rather
than religiously based, to be a widespread rather than a marginal occurrence, and to
include service people in uniform as well as conscription avoiders’ (Moskos 1992: 21).
Concerning the latter category, Gabriel and Savage stress that in a democratic society a
resignation from the military, or a request to be relieved of a command position, can be
consistent with the of� cers’ code of ethics, moral judgement, and values; it can be an
integral consequence of commitment to the profession (Gabriel and Savage 1978, see also
Gabriel 1982).

Challenging the state: conscientious objection and civil disobedience in
Israel

A similar process of transformation of the patterns of conscientious objection has been
taking place in Israel. Up to and through the Six-Day War, almost all instances of refusal
had a speci� c paci� st basis in opposition to violence.3 However, unlike the paci� st,
educational, Zionist and non-political line that characterized the Israeli Association of
Conscientious Objectors during the � rst 20 years of statehood, at the time it had been led
by Nathan Hofshi, Toma Schick (who had been an indisputable leader of the group since
the Six-Day War until November 1995, when he left Israel) and his followers transformed
the association to an ultra-radical political movement.4 As Shalom Zamir claimed, ‘the
essence of our struggle is not the exemption of conscientious objectors but the � ght against
a policy of nationwide discrimination, oppression, humiliation, and the infringement of
democracy and human rights’ (Zamir 1972: 4). As Michael Walzer stated the argument,
‘conscience may well lead individuals like ourselves to challenge the state and refuse to play
the patriot’ (Walzer 1970: 131). Toma Shick, Uri Davis and their supporters transformed
the association into a radical group that was to challenge the political consensus of the
Israeli society.

The Six-Day War in June 1967 marked the passage from a nation-state-in-the-making
to a de facto bi-national state (Kimmerling 1993); it also opened a new chapter in the
history of conscientious objection in the State of Israel. A consensus exists in Israel that
the Six-Day War was a just war. As such, no instances of refusal are known to have occurred
during the course of the � ghting. Four years later, however, after Israel had begun to tighten
its hold over the territories conquered in the war, a new pattern of non-compliance
emerged: selective refusal, that is, refusal to serve in the captured territories. A new type of
objection occurred in this period – political refusal with the intent to in� uence government
policy. It was a de� nite attitudinal change toward continued Israeli control of the occupied
territories. Political objectors were concerned that government policies were not bringing
peace any closer.5 Nevertheless, until the outbreak of the Lebanon War in 1982, there were
few refusals on political ground connected with national security. The infrequent refusals
after 1967 stemmed from the debate over the future of the territories and were con� ned
to the marginal political left. Refusal during the Lebanon War, by contrast, was a means
of protest openly adopted by a few hundred individuals. Some of them were of� cers, some
had served in combat status, and not all of them were identi� ed with marginal political
groups. The conscientious objection at the time of the Lebanon campaign (1982–85) and
the Intifada (1987–93) de� nitely did not originate either in Dr Schweitzer’s legacy of
peaceful creation or in the spiritual Zionism of Ahad Ha’Am, Gordon and Buber. Although
there exists an argument that civil disobedience did not begin with Socrates, but with the
Hebrew Bible, which rejected the supremacy of human law (Hazony 1998), the Israeli

310 ALEK D. EPSTEIN



conscientious objection transformed into a completely different story – the story of Israeli
followers of Henry Thoreau and Martin Luther King, the story of the citizen’s responsi-
bility for the mistakes of government, the story of the appearance of non-violent civil
disobedience in the changing Israeli society.

Probably the most landmark case was that of Gad Elgazi in 1979. Gad Elgazi was one
of the group of 27 high school seniors who published a letter objecting to the occupation
of the West Bank and Gaza Strip and stating that, when called to military service, they
would refuse to serve in the occupied territories. They added that by so refusing they
believed they contributed to peace in the Middle East. It should be mentioned that from
1971 till 1979, the Ministry of Defense pragmatically allowed such selective objectors,
when drafted, to serve within the ‘green line’ separating Israel from the occupied territories
(Epstein 1999). The case-by-case effort to resolve the issue of refusal through various means
without raising public awareness continued for years. Elgazi asked the army to consider his
request for selective exemption. However, in contrast with its previous policy, the Ministry
of Defense rejected doing so. Elgazi considered the army’s rejection of his petition to be
a case of illegal discrimination. After serving three consecutive one-month prison
sentences, he appealed to the Supreme Court, claiming discrimination in the light of
former exemptions given by the Ministry of Defense.6

The IDF was unable to deny the petitioner’s claims. Instead, the army’s counsel
explained:

Army authorities had given objectors a guarantee that they would be stationed
according to their wishes, within the borders of Israel, as long as refusal was an
isolated phenomenon. Now policy has changed. What had once been sporadic
instances of refusal with which the IDF was prepared to live, has changed in char-
acter and become an organized protest whose aim is to turn the IDF – the national
army, necessarily disengaged from any political or ideological arguments – into the
battleground for a kind of confrontation which the army cannot be associated with.7

The Supreme Court left no question concerning its position in regard to the individual’s
obligation to perform military service: ‘No military organization can tolerate the existence
of a general principle according to which individual soldiers can dictate their place of
service, be it for economic or social reasons, or for reasons of conscience’8. Although Justice
Cohen, who wrote a separate opinion, expressed dissatisfaction with the lack of a clear
policy by the army regarding service in the occupied territories, all three Justices agreed
that this was not a reason to consider as discriminatory the change of practice according
to which soldiers were now compelled to serve in the occupied territories. The principles
to which Justices Levin and Beiski referred, especially the need to leave questions of military
policy to the army, were essentially consequentialist: ‘We believe we had better refrain from
stating an opinion as to the utility-calculations of the authority when it implements its
policy; this is a matter for the respondents and their experts to handle and we see no legal
reason to contradict its calculations’9.

Consequentialist arguments were dominant in Yaakov Shain’s case as well. In 1983,
Yaakov Shain was called up for one month’s military service in southern Lebanon. Shain
refused, claiming that, in his view, ‘the IDF presence in southern Lebanon is unlawful and
inconsistent with basic notions of justi� cation of belligerent acts’. He was put on disci-
plinary trial and given 35 days’ detention. He was later sentenced to 28 days more for
refusing another reserve service call-up order. On receiving a third order for reserve duty,
Shain appealed to the Supreme Court. He submitted a petition to the Supreme Court,

FREEDOM OF CONSCIENCE AND SECULAR DISOBEDIENCE 311



maintaining that the second summons was not dictated by the ‘military needs’, as speci-
� ed in the Defense Service Law, but was in� icted on him as a punishment. The state
attorney claimed in response that the practice of calling objectors to duty after they had
been punished for their refusals stemmed from the need to overcome the phenomenon of
refusal to serve in Lebanon, which had severely jeopardized the foundations of military
discipline and the morale of soldiers serving there.

The Supreme Court rejected Shain’s claim that his second summons was not in line
with military and security needs, and that the military instructions, updated in 1983 regard-
ing summon objectors who had already been punished, were illegal.10 In the decision,
written by Justice Menachem Elon, consequentialist arguments were adopted as well: ‘The
purpose of the updated instructions is to insure that every reserve soldier ful� lls his duty
and provides military service in accordance with the military and security needs of the IDF,
which are determined by the IDF authorities’ consideration’11. Justice Elon added that the
petitioner was not entitled to determine the military policy and to decide what the army’s
security needs were. He surveyed responses to the selective conscientious objection, i.e.
objection to serve in a speci� c war for ideological reasons, in England and the USA, where
this was seen as infringing upon the process of democratic decision making and as consti-
tuting a real danger of applying unequal criteria in military recruitment. He claimed that
this danger existed in the case in front of him; moreover, he made sure to differentiate
between the Israeli context, with its higher stakes and unique utility considerations, and
that of other countries:

The whole great complex affair of law on the one hand and conscience on the other,
of the duty and need to maintain military service in order to defend the sovereignty
of the state and the well-being of its inhabitants on the one hand and refusal to go
to war for reasons of personal conscience on the other, must be reviewed in light of
the particular circumstances of time and place; but the dif� cult security situation of
Israel does not resemble the security situations of other states, securely ensconced
within their borders. This material difference is also a major and important consider-
ation in elucidating the issue before us12.

Although denying the possibility of one’s selective disobedience, Justice Elon con� rmed
one’s right to be fully exempt from the military service for reasons of conscience. He stated:

The reasons of conscience can serve as one of possible arguments the authorities
consider, in order to exempt one from the obligation to serve in the military. The
recruits having a paci� stic outlook asked – and got – such exemptions individually,
after they had personally appealed to the Defense minister.

And yet 143 reserve soldiers refused to join their units in their assigned military mission
in Lebanon (Linn 1986). The � rst cases of refusal became known to the public on 22
September 1982, following the quasi victory of the war – the evacuation of the PLO
terrorists from Beirut. The IDF spokesman announced that morning that three reserve
soldiers had been tried for refusing to serve in Lebanon for moral reasons. In the follow-
ing months, there were on average three refusals per month, reaching a peak in one month
(May 1983) of 27 objectors. One also has to account for the phenomenon of hidden
refusal, which grew during that period. The total number of 143 includes only those
soldiers who actually refused to obey the order and were sentenced to jail for from 14 to
35 days (about 15 of them went to jail two or three times throughout the entire war – from

312 ALEK D. EPSTEIN



June 1982 to June 1985 – when facing additional drafts). The number noted above does
not include the potential objectors, whose request not to serve in Lebanon was granted by
their immediate sympathetic commanders; in her study on the conscientious objectors
during the period of the Intifada, Ruth Linn found that 27% of the objectors unsuccess-
fully tried to avoid service using various excuses such as illnesses or job dif� culties (Linn
1996: 98). More than 1470 ‘Yesh Gvul’ [‘There Is a Limit’] members signed declarations
stating that if called up, they would refuse to serve in Lebanon.13 Therefore, the real
number of objectors was signi� cantly larger. In 1986, Lt Gen. Moshe Levi, approaching
the end of his tenure as chief of staff, admitted that refusals to serve in Lebanon had
played a role in Minister of Defense Moshe Arens’s decision to begin a withdrawal of the
IDF from Lebanon (Peri 1993: 155).

Even though refusal in the Intifada was more of an option than the Lebanon war, the
number of objectors within its � rst four years of existence, namely 165, does not suggest
that the process of refusal was easier on the individual reserve soldier than it was in
Lebanon (Linn 1995). An even more signi� cant change appears in the social background
of the conscientious objectors. The civilian background of the Intifada objectors was similar
to that of the Lebanon war objectors: both groups come from the elite of society, one-
quarter are kibbutzniks, one-quarter are of� cers, and a disproportionate number are
university graduates. According to Ruth Linn’s data, the ‘ideal type’ of the contemporary
Israeli conscientious objector refers to a secular, 30-year-old male of European origin (ages
21–49, mode = 34), who lives in a city (92%), is highly educated (79% have already � nished
at least their BA studies, 48% hold MA or PhD degrees), and is a member of the liberal
professions (92%); most of them (52%) actively participated in protest groups prior to their
refusal. The Intifada objectors appear to be experienced military of� cers (27%) and soldiers
(73%); half of them (50%; 61% among the Lebanon objectors) had participated in previous
wars in a combat role (Linn 1996: 88–91).

The protestors were not paci� sts, but they maintained that political dialogue with the
Palestinians was the sole means of achieving peace. War was only a last-resort means of
ensuring survival. In their view, attacks on civilians represented the dehumanizing element
of wars conducted with the aim of occupying territories rather than thwarting an exis-
tential danger. ‘Shalom Akhshav’ [‘Peace Now’] preached a peace initiative, including
dialogue with both PLO-af� liated and other Palestinian delegates. Most of its several
thousand members, repudiating the Israeli consensus, deemed the Palestinian national
movement legitimate. Most of the media advocated dissent, leading protestors to hope that
the government would accede to their demands.

The last decade’s objectors do not belong to those sectors of Israeli society that have
traditionally been estranged from the army. The opposite is true: they represent groups
whose contribution to the state’s military security has traditionally been high (Per 1993:
155). The political background of the conscientious objectors has also changed: this group
now comprises those from the ‘legitimate’ parts of the political left. What is more, organiz-
ations of the non-radical left have expressed either their support for or, at least, an ‘under-
standing’ of the refusal to � ght against the Intifada. Even though the overall numbers of
objectors are not large, the shift in attitude is signi� cant. A survey of high school students’
attitudes to military service found that 53% justify, to one extent or another, refusal to serve
in the territories. Thus there exists a paradox: paci� st conscientious objection that lacks
any recognition in civil society has received the recognition of various Israeli state insti-
tutions,14 whereas conscientious-civil disobedience, which is justi� ed by a large number of
‘legitimate’ civil society organizations and groups, has not been assigned with any recog-
nized status by the legal authorities.

FREEDOM OF CONSCIENCE AND SECULAR DISOBEDIENCE 313



It should be explicitly mentioned that since 1973 political protest and civil disobedi-
ence have also become the tools of Israeli right-wing radicals (Sprinzak 1991: 18). In the
mid-1990s the idea of civil disobedience for reasons of conscience became an essential part
of the political philosophy of Israeli extreme right organizations. Ehud Sprinzak argues
that ‘many young Israelis learned for the � rst time about the civil rights movement, Martin
Luther King Jr, and the struggle against the Vietnam War’ from the extreme right ‘Zo
Artzenu’ (‘This Is Our Land’) leaders’ interviews to the media in 1995 (Sprinzak 1999: 271).
The chairman of ‘Zo Artzenu’, Moshe Feigelin, argued that only a real struggle, i.e. uncom-
promising civil disobedience and the readiness of a large number of people to be arrested,
could mobilize the masses against the government and effectively stop the Israeli–Pales-
tinian peace process.15 Elyakim Haetzni, a prominent secular leader of the Judea and
Samaria settlement movement, was the � rst to introduce the language of personal dele-
gitimization into the struggle dictionary of the radical right. Since 1992 he has devoted
most of his intellectual energy to the development of a settler version of civil disobedience.

Haetzni’s justi� cation of civil disobedience starts with the universal proposition that
Western civilization has always recognized limits on citizens’ obligation to obey human
laws. Eminent thinkers – from Socrates to Gandhi and Martin Luther King Jr – argued
that above the law of every state there are higher principles of justice, religion or natural
law that make disobedience legitimate and sometimes obligatory. While Socrates associ-
ated disobedience with the right to engage in a free philosophical discourse and to educate
the young, Henry David Thoreau placed the limit on slavery and lack of human freedom.
Charles de Gaulle, in a case analogous to that of Israel, refused to go along with the surren-
der of homeland territories to the enemy. Martin Luther King Jr believed that the inhu-
manity of racial segregation fully justi� ed civil disobedience. Even the members of Israel’s
‘Yesh Gvul’ argued that military service in the occupied territories violated their beliefs and
justi� ed disobedience to the law. Drawing on all these precedents, Haetzni asked his
readers, friends and foes alike, to respect the right of the settlers to disobey orders involv-
ing the surrender of Eretz Israel territories. Israel’s settlers, he warned, would refuse to
evacuate their settlements despite any agreement the government might conclude with the
Palestinians.16

Haetzni’s interpretation of civil disobedience consistently ignored the Palestinian side
of the dilemma; neither did it take into consideration the plight of people who had never
chosen to live as second-class citizens under Israeli occupation. Haetzni failed to notice that
civil disobedience theories were developed by the poor and the powerless, usually against
oppressive governments – not by mighty colonizer committed to the sacred Land of Israel
as if no people had lived there for generations. What Haetzni had in mind was not an
ethical theory of disobedience but an instrument of popular mobilization that would
appeal to educated settlers and legitimize efforts to bring down the government in the
streets. As Haetzni stated:

A process [of disobedience] will feed into an internal process of alienation of the
people of Israel from the government, will intensify . . . the message of the demon-
strators, rioters, individuals who block the roads, founders of settlements on lands
owned by the Palestinian land authority, those who put barbed wires around these
lands before their return to the enemy, the jailed, the sentenced, the locked. This will
be the day when this alien government will collapse and a new dawn sheds light on
a new Israel, a better Israel, pure and untarnished. (Haetzni 1994: 25–27)

The initiative to refuse military service by reason of conscience manifested itself at the

314 ALEK D. EPSTEIN



extreme right wing in the Chai Ve-Kayam (‘Alive and Existing’) group. This group was estab-
lished by Yehuda Etzion, the ideologue of the Jewish Underground in the 1980s. In his
view, the failure of the state to become Jewish, redeem the land, assert authority against
the Arabs, and start building the Third Temple made it illegitimate. While neither engaging
in violence against the Palestinians nor physically confronting the Israeli secure forces, Chai
Ve-Kayam activists (whose number never exceeded three dozen) raised the level of anti-
government resistance through incessant efforts to pray as a group on the Temple Mount,
an act prohibited by Israeli law. By calling upon the settler community to dissociate them-
selves from state institutions and to stop paying taxes, Chai Ve-Kayam also contributed to the
spread of civil disobedience as a strategy among the settler community. At the beginning
of November 1993, 11 members of Chai Ve-Kayam led by lieutenant (res.) Mordechai
Karpel signed an open letter to the Prime Minister declaring their unwillingness to serve
in the military, which ful� ls the government’s orders that endanger the future of the Israeli
settlements in Judea and Samaria.17

Today the idea of legitimacy of civil disobedience has become an essential part
of the Israeli right’s intellectual and political vision. In his paper entitled ‘The Jewish origins
of the Western disobedience tradition’, Yoram Hazoni, director of the Shalem Center in
Jerusalem (the most prominent right-oriented centre for public policy research and social
thought in Israel), argued:

Today, we are left to operate the state without prophecy. But we do have the heritage
of the prophets – a heritage in which individuals possess a ‘constitutional’ standing
as against that of the state, and which removes them a step or two beyond its reach.
It is this distance from the dictates of men which affords us the freedom to judge and
to abhor, to speak and to demand, and, when necessary, to disobey. Of course, for
such a tradition to bear fruit ultimately depends on the strength of individual men.
And there always exists the possibility that, when actually confronted with the injus-
tice of the state, the many will simply turn their backs on the disobedience tradition
of the West, submitting to the state and ‘just following orders’, as so many did in
Germany not so long ago. Yet the political tradition of the democratic states of our
time, as epitomized by their judgment at Nuremberg, continues to hold before us the
alternate possibility: That even men who are not prophets can � nd strength in the
disobedience tradition of the Hebrew prophets, and will prove worthy of its legacy
when the terrible moment comes. (Hazony 1998: 63)

To my mind, the fact that, based on the freedom of conscience, the idea of civil disobedi-
ence has become an essential part of the political ideology and practice of various civil
society organizations (on both the right and the left wing) should entail re-examination of
the traditional attitude towards the limits and the legitimacy of conscientious disobedience.

Reframing the discussion: towards a recognition of collective secular
disobedience

Although conscientious objection may be an act of very few, there appears to be a positive
correlation between reliance on conscientious objection and other forms of dissent.
Moreover, conscientious objection, unlike other forms of refusing consent, requires an
explicit and public statement of opposition to government demands (Levi 1997: 165–199).

Many countries have made allowance for conscientious objectors in their conscription

FREEDOM OF CONSCIENCE AND SECULAR DISOBEDIENCE 315



laws. However, the acceptance of the right to conscientious objection by the government
does not occur uniformly in every country. The USA was the � rst to allow some right to
conscientious objection at the national level. This took place in the mid-nineteenth
century during the Civil War. Britain in 1916 was the � rst European nation to grant
of� cial recognition to conscientious objectors while at war. The Netherlands in 1924 was
the � rst to accept selective conscientious objection and the � rst European nation to estab-
lish civilian alternative service. In the late 1950s, the Federal Republic of Germany was
the � rst country to move toward a massive alternative civilian service programme for
conscientious objectors. By the 1980s Denmark became the � rst country in which alterna-
tive service was made less onerous than peacetime military service (Sorensen 1993).
Conscientious objection and alternative service have been recognized in France (1963;
re-formulated in 1983) (Martin 1993), in The Netherlands (1924; re-formulated in 1964
and 1978) ( Jan Van Der Meulen 1992), in Italy (1972) (Nuciari 1992), in Austria (1975),
in Poland (1988) (Modzelewski 1994) and in almost all other liberal democratic countries.
In some of these countries, especially in Denmark and in Germany, conscientious objec-
tion has now become the ‘normal behaviour’ of the young man (von Bredow 1992).
However, even in Scandinavian countries, where non-religious objection was furthest
advanced, secular criteria for conscientious objection followed closely after the de facto
recognition of religious motives. In no society has the state ever recognized secular
grounds before religious motives as the basis for accepting conscientious objection and
exempting COs from combatant military service.18

It is sometimes said that if governments allowed exemption to those who based their
judgement on the particular facts of a war, this would in some way be allowing the objec-
tors’ assessments of the facts to prevail over the assessment of the government itself, thus
giving legal recognition to the superiority of the dissentient views (Van den Haag 1972:
50). This is a dubious argument, for if allowing an objector’s judgement of fact to excuse
him from military service accorded legal recognition of the superiority of his views,
allowing a paci� st’s moral judgement to excuse him should have the same effect. It is in
any case not true that to accept a judgement, whether of fact or morality, as a ground for
exemption is to accord legal recognition to the soundness of that judgement. In fact, under
the laws of most countries, the of� cials or judges responsible for exemptions are required
to test sincerity of conviction, but not soundness of belief.

It looks, therefore, as if the discussion on conscientious objection and civil disobedi-
ence in legal systems of most contemporary democracies is asymmetrical and its validity
is thus limited. Conscientious objection bears an obvious family resemblance to civil dis-
obedience. However, the current discourse is based on the assumption that a state has the
exclusive right to legislate and determine its policy and lays the burden of justi� cation of
objection on the individual. In order to obtain a comprehensive discussion on the issue,
the responsibility for justi� cation should be divided between the individual and the state.
Coercion is always in need of justi� cation, and coercing a man to do something contrary
to his most deeply held moral beliefs (which he is normally encouraged to follow) requires
special justi� cation. The state also has to show that its laws and policy are consistent with
the goals and culturally determines values of the society.

The difference between state’s and civil society’s justi� cations of controversial political
issues conceptually corresponds to the difference between legality and legitimacy.19 The
legality of a policy is de� ned by the state authorities; as has been claimed by Max Weber,
one of the essential characteristics of a modern state is the institutionalization of citizen-
ship de� ned by legal and rational criteria. On the other hand, the extent of the legitimacy
of a state policy is de� ned by the civil society according to the accepted cultural values.

316 ALEK D. EPSTEIN



Thus not every initiative of the regime is likely to be taken for granted as legitimate, the
extent of the civil protest against the authorities indicating the degree of legitimacy of the
state and its institutions.

A democratic state is enormously dependent on the willingness and ability of its citizens
to commit themselves to political values and to act consistently in their name. The Govern-
ment, writes Ronald Dworkin:

Will not re-establish respect for law without giving the law some claim to respect. It
cannot do that if it neglects the one feature that distinguishes law from ordered
brutality. The law must state, in its greatest part, the majority’s view of the common
good. The institution of rights is therefore crucial, because it represents the majority’s
promise to the minorities that their dignity and equality will be respected. If the
Government does not take rights seriously, then it does not take law seriously either.
(Dworkin 1978: 205)

However, it should be mentioned that citizens’ commitments are generally made in groups,
where values are collectively worked out and the strategy and tactics of political action are
debated. Such moral positions as obedience and refusal are usually constructed and mani-
fested in connection with other people. In the words of Michael Walzer, ‘disobedience,
when it is morally, religiously, or politically motivated, is almost always a collective act, and
it is justi� ed by the values of the collectivity and the mutual engagements of its members’
(Walzer 1970: 4). The ‘connected’ moral critic is a person who has ties to a particular
culture; his/her sense of justice emerges from shared understandings or agreements with
other individuals who are aware of their historical moral selves and who form part of that
society (Walzer 1988). As has already been stated,

Protest behavior by a military professional is not necessarily an act of mutiny or
disobedience. In fact, if compliance and obedience are one side of military pro-
fessionalism, reservation and protest may be the other. While the former behavior is
the rule as long as military decisions and operations are considered ‘legitimate’, the
latter is called for when legitimacy is questionable. (Gal 1985: 560)

Human rights that can be promoted by regional and global institutions, on the one hand,
and by citizen movements, on the other, represent the two main structural challenges to
the primacy of the state in world affairs. These challenges to statism suggest the relevance
of levels of analysis above and below the level of the state and call for a more complicated
image of ‘actor’ with respect to human rights.

The negotiation process between individuals and state over the meaning and practices
of citizenship ensues from changes in the logic of the state. Such a change took place in
the state’s practices during the war in Lebanon. As has been claimed by Sara Helman, ‘a
change in the logic of the state, as this change was perceived and interpreted by groups
and individuals during the war in Lebanon, caused crises of state legitimacy and social
motivation. Conscientious objection evolved as an ultimate expression of both crises’
(Helman 1993: 2). I would like to argue that the rise in a number of civil society groups
that evidently express their disagreement with current state authorities’ external or/and
internal policy certainly demonstrates a decline in the extent of legitimacy of the state and
its institutions. Therefore, because the broadening of conscientious disobedience indicates
the reduction of the legitimacy of the state policy, state authorities use the force of law in
order to de-legitimize those patterns of conscientious disobedience that can endanger their

FREEDOM OF CONSCIENCE AND SECULAR DISOBEDIENCE 317



status in the ruled society. The phenomenon that is stigmatized as ‘selective conscientious
objection’ provides a signi� cant illustration of such an attitude – in the USA, in the
European countries, and also in Israel.

An entity like ‘humanity’ acquires some ‘collective conscience’, and in fact, since the
Second World War, it has been accepted that democratic law is subordinate to higher values
of human dignity and civil freedoms, and that under certain extreme conditions a citizen
must refuse to obey a law. As has been stated in Henry Thoreau’s famous lecture, published
one hundred years before the Nuremberg trials, majority rule by itself is not identical with
justice. As argued by Richard Falk, ‘Human rights are not, in the main, legal or moral
abstractions. They are embedded in historical process’ (Falk 1981: 6). In the words of
Noam Chomsky, ‘After the lesson of Dachau and Auschwitz, no person of conscience can
believe that authority must always be obeyed. A line must be drawn somewhere. Beyond
that lines lies civil disobedience’ (Chomsky 1969: 201). In the third section of his book on
Non-Violent Resistance (Satyagraha), Mohandas Gandhi explicitly stated:

Civil disobedience becomes a sacred duty when the State has become lawless. . . . It
is possible to question the wisdom of applying civil disobedience in respect of particu-
lar act or law; but the right itself cannot be allowed to be questioned. It is a birthright
that cannot be surrendered without surrender of one’s self-respect.20

The liberal democratic state must recognize this basic principle; therefore, the current de� -
nition of conscientious disobedience should be re-formulated. The changing sociopolitical
reality and the transformation of conscientious objection require the adopting of a
currently relevant de� nition of the phenomenon of conscientious disobedience by the legal
and legislative authorities.

Acknowledgements

This paper originated from research on the changing patterns of conscientious objection
and political protest in Israel conducted by the author with the assistance of the Center
for Human Rights, Faculty of Law, Hebrew University of Jerusalem. The author gladly
expresses his acknowledgment to the academic director of the Center Professor David
Krechmer and to the administrative director Mrs Francine Hazan.

The current manuscript is based on two lectures by the author (both were presented
in Hebrew); the � rst of them, entitled ‘Legitimacy of Disobedience: Conscientious Objec-
tion and Civil Protest as a Re� ection of State – Society Interrelations’ was presented at the
Historical Society of Israel workshop, Maale-haHamisha, 28–30 December 1997; the
second, entitled ‘Social and Legal Status of Paci� sm in Contemporary Israel’, was
presented at the Center for Human Rights Research Seminar at the Belgian House,
Hebrew University of Jerusalem, 26 April 1998. I would like to thank all those participants
of these seminars who contributed their ideas and suggestions.

Notes

1. ‘In compliance with the fundamental obligations to the Convention, States Parties undertake to prohibit and
eliminate racial discrimination in all its forms and guarantee . . . the right to freedom of thought, conscience
and religion’. International Convention on the Elimination of All Forms of Racial Discrimination, Article 5.

2. This analysis presented below is based on Charles Moskos, ‘The secularization of conscience’. International

318 ALEK D. EPSTEIN



workshop on Conscientious Objection: from Religious Paci�sm to Political Protest papers (Zihron-Yakov: Israeli Insti-
tute of Military Studies, 1992), 20–42.

3. See Blatt et al. (1975). The most famous case – that of Amnon Zichroni (1954) – has been recently analysed
by Keren (1998).

4. For further details see Epstein (1998).
5. For further discussion see Scheleff (1989).
6. For more detailed discussion see Shachar (1982).
7. Proceedings of the Supreme Court, 24 September 1980; cited in Peri (1993).
8. H.C. 470/80, Elgazi v. Minister of Defense and Others (unpublished; State Archives), 5.
9. Ibid., 6.

10. The discussion of this case is based on Klosko et al. (2000).
11. H.C. 734/83 Shain and the Israeli Association for Civil Rights v. the Minister of Defense and Chief of Staff, P.D. 38 (3),

399.
12. Ibid., 403; translated into English and cited in Barzilai, 1996.
13. Ha’aretz, 29 November 1983.
14. Responding to Epstein’s appeal, the General Attorney informed the High Court that in the light of the

freedom of conscience, given to the citizen in a democratic state, one ought to be exempted from the military
service if the latter contradicts his/her consciousness, faith and world outlook. Though there is no explicit
recognition of men’s right to be exempted from the military service for reasons of conscience, certain of� cials
within the military are assigned a recognized authority to exempt a man from military service for these reasons
[General Attorney’s Response to H.C. 4062/95 Epstein v. The Minister of Defense (submitted to the Supreme
Court on 23 July 1995), section 10 and section 13]. In another case Justice Heshin explicitly stated that there
is no doubt that the Defense minister is authorized to exempt a recruit military service for reasons of religion
or conscience. The Defense Minister has been assigned this authority by paragraph 36 of the Military Service
Act, 1986 [H.C. 2700/96 Baranovsky v. the Minister of Defense (unpublished), 5].

15. See Feigelin (1994); discussed by Sprinzak (1999: 273–274).
16. See Haetzni (1993); discussed by Sprinzak (1999: 226–228).
17. See Objection for the sake of the rescue of Eretz-Israel, HaIr, 5.11.1993 (in Hebrew).
18. For further details see Noone (1993).
19. For further discussion of the issue see D’Entreves (1967); Dyzehnaus (1996).
20. Cited in Crawford (1973).

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