Rav Melamed vs. Ehud Barak: Conscientious Objection or Insubordination?

In the current dispute between Ehud Barak, Minister of Defence, and Rav Eliezer Melamed the Head of Har Bracha Hesder Yeshiva, it is very unclear in the press reports what either Ehud Barak or Rav Melamed’s objectives are.

It does seem that Ehud Barak’s insistence that there be "no insubordination" in the Israeli army is eminently reasonable. No other army in the world permits insubordination – the refusal to obey a lawful order from a superior.

Nor can Rav Melamed reasonably expect a Minister of Defence to permit insubordination, which could undermine the effectiveness of the IDF in implementing its critical missions. An army doesn’t work by asking the regular soldier which combat missions he will or will not choose to carry out.

On the other hand,. Ehus Barak surely recognizes and appreciates the important, indeed critical, role of National Religious soldiers in the armed forces (some 25% of Israel’s crack combat troops) – and of the highly motivated Hesder Yeshivot in particular.

Both Ehud Barak and Rav Melamed passionately support the need for Israel’s army to effectively protect and promote Israel’s national defence – and neither of these men wish to compromise that in any way manner or form.

Israel does, however, recognize the concept of Conscientious Objection. Conscientious objection is the legal right of a civilian to object to serving in a combat force. In Germany today, for example, some 50% of conscripts refuse to participate in the army, and are therefore required to perform civilian community service instead. In Israel, the Israeli Arabs (with the exceptions of Druse and Bedouin) and the Chareidim are effectively considered Conscientious Objectors and are thus exempted (or deferred) by law from serving in the Army.

Now whereas most Western Countries have a tradition of accepting genuine conscientious objection to joining the armed forces as legitimate, this is always prior to joining up. Once the soldier is in uniform, he loses his right to conscientiously object to obeying specific lawful orders.

Of course, it was set down in the Nurenburg trials that “I was just obeying orders” does not take away a soldiers requirement to refuse to obey unlawful or unjust orders, such as deliberately massacring civilians.

Another related concept to Conscientious Objection is Civil Disobedience. Civil Disobedience or Non-Cooperation was popularized by Mahatma Gandhi in the successful Indian struggle against the British regime. Gandhi famously made salt from sea water and burned his ID card, both of which were illegal acts under British colonial law.

Gandhi did not claim these acts were legal. He was a lawyer, and knew full well they were not. And indeed, he was willing to pay the price called for in the law – and was imprisoned by the British regime on several occasions.

Civil Disobedience involves breaking the law, because the person wishes to expose a legal system or a regime, or even a specific law, as being corrupt and unjust. The law is recognized as being the law – but it is not recognized as legitimate.

Here in Israel, civil disobedience was used during the Gush Katif demonstrations. I myself broke the law against a public gathering in Netivot – and I was willing in principle (though not enthusiastic) to be arrested for that. My objection was not with the ‘regime’ itself – it was with the legitimacy of the Evacuation Orders (Disengagement) policy of the Government. My breaking the law (along with some 50,000 fellow demonstrators who ended up surrounded in a siege by the army at Kfar Maimon) was part of that political struggle.

To return to the current dispute, I believe Ehud Barak’s objective is to use the army to implement evacuations of Jewish homes, villages and towns in Yehuda, Shomron and the Golan – such as may be called for in a “Peace” Agreement with the Palestinians or Syrians.

Whereas Rav Melamed’s actual objective is to prevent Jewish settlements being destroyed by this or future Israeli Governments.

A tactic in achieving this objective, is to make the Israeli army incapable of implementing such a policy. A tool in this, is for enough soldiers to refuse orders to implement evacuation laws, so as to make the evacuation unachievable.

This was attempted also in the anti-Gush Katif struggle, in a campaign called “Siruv Pekuda” – refusal to obey orders. Much hyped, this campaign was ultimately unsuccessful, as almost all soldiers turned up for their duties, and obeyed the disengagement expulsion orders at Gush Katif.

Rather than try this again through attempts to indoctrinate soldiers to disobey their commanders orders (insubordination), as Rav Melamed seems to be working on, I propose an alternative would be to change the law itself.

A law which permitted soldiers to refuse commands to (specifically) evacuate Jewish civilian population, would render the act of disobeying those orders legal, and therefore not insubordination.

A sort of right to Conscientious Objection, but granted to loyal serving members of the forces, in a specific defined circumstance.

If enough soldiers would conscientiously object in this legally permitted manner, then a Minister of Defence could face the possibility of not being able to implement another Gush Katif, or worse.

Once so defined by the law, there is no reasonable fear by the army itself of the same (or other) soldiers disobeying orders in their regular combat duties or training, such as when fighting against a regular enemy. That insubordination would rightly remain an illegal and punishable act, an act of desertion or treason.

Neither the Ministry of Defence, nor the study halls of the hesder yeshivot, are the appropriate battleground over a Jewish soldier’s legitimate right to object to their being cynically employed to destroy Jewish homes, villages and towns.

This is an immediate matter for the Knesset legislators.