Case Number

HCJ 2383/04

Date Decided

8-9-2004

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitioner 1 applied for an exemption from military service for reasons of conscience due to her objection to IDF policy in the territories, which contravened her humanistic, moral ideology. The military authorities rejected the exemption request, and the Supreme Court denied her petition in the matter. Inter alia, the Court addressed the question of the test employed by the military authorities for deciding the question of refusal to serve in the army.

The Court noted the existing distinction between general refusal to serve in the army, which is wholly unconditional and most typically grounded in the individual's conscience, and selective refusal, namely conditional refusal which does not entirely rule out military service, but makes it contingent on the fulfilment of certain conditions. The army's policy not to grant an exemption from military service based on selective refusal was judged reasonable.

The potential negative impact of such selective objection on the public interest is not limited to its effect on the army's manpower. It might have an adverse morale effect on social cohesion within army ranks and impinge on the necessary principle of separating between the duty to shoulder the burden of military service and obey orders, on the one hand, and the political debate and the conflicting ideas, opinions and beliefs that characterize Israel's pluralistic society, on the other hand.

Making military service dependent on the extent to which a male or female soldier identifies ideologically with the actions of the political and military echelon could dangerously erode the democratic process, which requires submitting to the authority of the majority, and equal sharing in the burden of economic, social and security duties, which is essential to the existence and proper functioning of society and state.

The judgment also includes: A distinction between the general power to grant exemption from service under section 36 of the Defense Service Law (Consolidated Version) 5746-1986, and the special exemption relating to women, as prescribed in section 39 of the law.

Keywords

Army -- Assignments and exemptions from service, Constitutional Law -- Conscientious Objection

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