In December 2002, Shani Werner, a member of a group of young Israeli women who refused to serve in the military because of their conscientious objection to the occupation of the West Bank and Gaza, wrote an open letter to the other members of her group:
When we drafted our first protest letter as high school seniors (in the summer of 2001), we drafted it together--male and female conscientious objectors alike. We didn't ask ourselves whether both [of] these refusals to serve (the men's and the women's) belonged together. It was clear to us that a woman's refusal was identical in its importance to a man's, and therefore we were not aware of the significance of the letter that we wrote, which placed male and female conscientious objections on an equal footing.... A great deal of time has past since then.... As time passed, frustration built up in me. I started feeling that within our [sheltered environment]--that of high school graduates in particular, and of the Israeli left in general--we created a mirror image of the very phenomena we are fighting against. We created a militarization of draft resistance. The extremely upsetting image of the good woman who awaits the return of "her" soldier from the front and who irons his uniform--[the image] against which we are fighting--we have not changed it. We have created a mirror image of her--a woman who is yearning for the quick release of the male conscientious objector from prison, and who in the meantime encourages him from a distance.... We have stopped debating the significance of the phenomenon of women's conscientious objection, and we have almost completely ceased to promote it in the public sphere.... Nonetheless, we keep debating the issue of imprisoned male draft resisters over and over again. My refusal to be drafted, which I viewed in the past as a public-political stance, has today turned into a private one.... Because the public discourse is not aware of it and the left-wing discourse ignores it, the conscientious objection of young women has stayed a private matter, not to mention a silenced one. (1) When Shani wrote this letter, the phenomenon of women's conscientious objection had not received significant exposure or recognition in Israeli public or legal discourse. Conscientious objection was identified strictly with male draft resistors: conscripts and reservists who refused to serve on grounds of general pacifism or their specific opposition to Israeli policies in the Occupied Territories of the West Bank and Gaza. (2) Furthermore, not only did the Israeli public discussion of draft resistance focus on the refusal of these men and the jail terms they received, but it also created an overlap between conscientious objection as a social and legal phenomenon on the one hand, and the incarceration of the male conscientious objectors on the other. The fact that women also signed the 2001 High School Seniors' Letter (3) and refused to be drafted into the military on grounds of conscience did not penetrate public or media awareness. The public eye also ignored the fact that these women, although not incarcerated for their beliefs, were nonetheless active draft resistors and performed alternative forms of civilian national service. This situation resulted in part from the structure of the Defense Service Law that governs the issue of conscientious objection to military service in Israel. (4) The statute contains separate provisions for dealing with male and female conscientious objectors. Under its terms, women, unlike men, enjoy the explicit right to be exempted from military service on grounds of conscience. Consequently, throughout the past, female conscientious objectors have received exemptions from military service quite easily, whereas similar requests made by men have usually been denied. Moreover, those men who continued to resist the draft were tried before military tribunals and imprisoned. (5)
However, since Shani Werner wrote her letter, changes have taken place. These changes have reshaped the character of the public and legal discussion of the issue of conscientious objection. Specifically, women's conscientious objection has started to gain wider public recognition, (6) and no longer remains a private matter of concern only to female objectors. But it appears that women's draft resistance has won recognition only because it has adopted the characteristics of the parallel male phenomenon. In 2004, the military authorities decided to reinterpret the different legal provisions that address conscientious objection, and enforce a stricter policy towards female objectors. (7) As a result, some women have served sentences in military prisons for their refusal to serve. (8) Subsequently, Israel's Supreme Court endorsed this new policy. Following the petition of a female conscientious objector who was denied exemption and then imprisoned, the Court ruled that women's separate right to conscientious exemption should be abolished, since the principle of sex-based equality required formal equality between men and women. (9) In other words, in order to "equalize" conscientious objection, the Court decided that women should receive precisely the same strict legal treatment as men. (10)
This Article will investigate the process by which women's conscientious objection has been simultaneously "masculinized" and formally equalized. The story of female draft resistors in Israel serves as a case study, providing important insights into the inherent constraints of contemporary legal discourse in promoting substantive gender equality and into the relationship between specific legal arrangements and the invisibility of women in the public sphere. This case study also sheds a more nuanced light on the nature of separate legal arrangements for women, and raises important questions about the appropriate feminist agenda for social and legal change. As this Article will analyze and explain, the formal reference to equality that legitimized the denial of the separate right granted to women has far reaching consequences from a woman's perspective. When those consequences are compared with the old regime of gender separation, it is unclear whether women were better off before or after the change. In this sense, it seems that Shani Werner underestimated the significance of her conscientious objection with regard to its transformative potential. True, in the framework of the original legal structure, women's "voice" of resistance was weak and largely ignored; however, it was not meaningless in the public sphere. Rather, considering the central role of the military in Israel in shaping the meaning of citizenship in a male-biased manner, the practice of women's conscientious objection to the draft appeared to hold the promise of reconstructing the commitments of citizenship in a non-militaristic vein that would have been a significant step toward substantive gender equality. Given the Supreme Court's recent decision, (11) however, the possibility that this form of conscientious objection would win recognition has been completely undermined, as has its growing influence in the public sphere.
Part I of this Article outlines the legal foundation of the Defense Service Law and explains the role of the military and military service in Israel. It also examines the legislative history that shaped the separate legal provisions applied to female and male conscientious objectors. Part I explores how this particular sex-specific legislation was born, rationalized, and consolidated, and what its implications for women were. This Part argues that, while this legislation was clearly shaped by problematic gendered perceptions, the separate legal arrangement for conscientious objection would eventually grant women an important right to resist the draft. This right would become especially significant in light of the problematic link between military service and citizenship in Israel and the adverse effect this link has on the status of women. More specifically, the argument is that not only did the separate right to conscientious objection protect women's freedom of conscience, but it also held transformative potential. This right opened the door for a feminist practice of civil community service, which would replace military service and potentially demilitarize the commitments of citizenship in Israel, thereby promoting substantive gender equality.
Part II explores the further consequences of the separate legal arrangements for male and female conscientious objectors. Specifically, it focuses on questions of law and voice, examining the influence of various legal arrangements on women's ability to be heard and have a significant influence and presence in the public sphere. This Part argues that the prevailing masculine legal order under which women exercised their separate right to conscientiously object interfered with their ability to articulate a meaningful public voice of protest in terms of both visibility and presence in the public sphere. Hence, while women exercised a more significant right to conscientiously object, the Israeli public discussion of draft resistance focused only on the phenomenon of male draft resistors.
Part III evaluates the significance of the recent legal changes to the interpretation and application of the separate provisions of the Defense Service Law. It highlights the potentially detrimental consequences of a legal reform that undermines existing separate legal arrangements for men and women in the name of sex-based equality. It also raises important questions regarding the relationship between feminist lawmaking and the courts.
This Article concludes with the claim that the story of female conscientious objectors in Israel provides an important case study regarding the limits of the law, its unexpected effects, and the often-overlooked potential for social change. This story also sheds light on the inseparable link between feminist...