What distinguishes a legitimate soldier from a war criminal is how he conducts himself on the battlefield. But what if there is no battlefield and the combatants don’t wear uniforms?
Over the last 25 years Israel has found itself engaged in non-conventional, asymmetrical battles as Palestinian militants deliberately have turned conventional warfare on its head.
Moshe Halbertal, a professor of philosophy here and in Israel and a co-author of the Israel Defense Force’s code on war ethics, asserts that the Palestinian combatants’ goal is to erase the distinction between civilians and soldiers, making every Israeli a target, anywhere and at any time.
Speaking in Teaneck, N.J., on behalf of the Shalom Hartman Institute of North America recently on “Morality on the Battlefield: The Ethics of Wartime,” Halbertal said there are “two very different moral responses” — on the extremes — to this type of Palestinian behavior, and he disagrees with both.
Those on the extreme right say that since the enemy initiated the conflict, hides among its own civilians and targets Israeli civilians, Israel can strike back hard and has no moral responsibility toward the Palestinian civilian population.
Those on the extreme left, he continued, say it is wrong for Israel to conduct military operations in areas where Palestinian innocents might be killed.
Both arguments, says Halbertal, “are easy solutions, and wrong.”
An army has “an obligation to defend its own citizens,” he said, and Israel has a military code of ethics because it wants its army to be victorious and its soldiers to “feel they behaved properly as human beings.”
Halbertal, who immigrated to Israel from Uruguay, displayed a calm, thoughtful manner in offering an “honest picture of what we do well and not as well,” speaking of the IDF. He is a professor at New York University Law School and professor of Jewish thought and philosophy at the Hebrew University, as well as longtime senior fellow at the Shalom Hartman Institute, a center for Jewish thinking, teaching and leadership training, in the U.S. and Israel.
His involvement as part of a group editing the IDF code of warfare goes back to 2000, and he has lectured extensively to generals as well as soldiers on the ground regarding their ethical responsibilities in an army that considers itself, and is viewed by many, as the most moral in the world.
Halbertal’s critique of the Goldstone Report, published in November 2009 in The New Republic, was the most authoritative and compelling rebuttal of the United Nations commission’s findings on Israel’s actions in the Gaza war. Among his conclusions, Halbertal asserted that the report, in refusing to admit that Gaza fighters wore civilian clothes and hid among the population, failed to deal with the pressing dilemma of how any moral army should respond to asymmetrical warfare.
In his talk in Teaneck, he noted that there are four principles that represent “the spirit of the IDF” and distinguish between “a noble soldier and a war criminal,” acknowledging that they often are difficult to apply.
First is the principle of necessity, he said; force can be used only for the purpose of the mission at hand.
If a soldier must enter a Palestinian home in searching for militants, he is permitted to break down a door but not destroy a television, for example.
Determining what is necessary in completing the military mission is “the most basic moral and professional principle” and complicated to apply, Halbertal said.
The second principle is one of distinction, with the ethical soldier targeting only combatants, and not innocents. This is “the opposite of the terrorist,” who insists, in the case of Hamas militants, for example, that every Israeli — man, woman or child — is a combatant and therefore subject to attack.
Third is the principle of responsibility, which Halbertal characterizes as “the most complex” because it is often the case that when a mission focuses on a legitimate target, there may be collateral damage to innocents.
“We say it is justified if you do as much as possible to reduce harm to innocents,” the professor said, like warning civilians to leave their homes or a certain area,” a common practice of the IDF before it employs firepower. Further, he said, the IDF will sometimes risk its soldiers’ lives to reduce collateral damage to the enemy population.
Perhaps the most noteworthy example was the 2002 battle of Jenin, during the second intifada, when Israel sought to root out Palestinian terrorists from the refugee camp and chose not to bomb it out of concern for civilians there. Instead, it sent its forces in on the ground, risking the lives of its soldiers, 23 of whom were killed. Ironically, the Palestinians accused Israel of a massacre, but the UN later acknowledged that was far from the truth.
The fourth principle, of proportionality, is the natural follow-up to the third, namely, how much collateral death, if any, is acceptable morally if you are able to eliminate a prominent target, and by doing so also kill innocents.
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There are numerous examples of Israel opting not to assassinate Hamas officials so as to avoid excessive collateral damage — in contrast, by the way, to U.S. actions in Afghanistan and Iraq. (Halberstam noted that U.S. policy has changed dramatically of late and is now “less permissive” in risking civilian lives in Afghanistan than it was in Iraq, in part because Washington realized its collateral damage was turning Iraqis against the U.S.)
In assessing the IDF’s record, Halbertal gives it high marks for being “professional and moral, as a general norm,” while noting that “there is work to do” in training soldiers on an individual level to assess risks in the heat of battle.
He described these encounters as “micro wars,” where each soldier in combat — not just generals at a central command — must determine on the spot, for example, whether someone on the top of a nearby roof is a combatant or an innocent.
These decisions are “very complicated, vital and challenging,” he said.
The most effective and ethical form of warfare is targeted killing, Halberstam said, going after the enemy’s leadership and combatants at minimal risk to civilians. The use of drones, he noted, has managed to accomplish this in many cases.
He emphasized that killing innocents “galvanizes the enemy population and weakens the moral base of your legitimacy.” He said that he explains these values and principles to Israeli soldiers, in part because “these norms help them perform their mission,” and because it is important for Israeli society “to feel deeply the integrity of the cause — without legitimacy, our superiority would collapse.”
Halbertal’s one mention of Iran was that it was morally acceptable for Israel to make a pre-emptive strike to thwart the nuclear program. “The question is a strategic one,” he said. “One has to plan to minimize collateral death.” In an allusion to the deaths of scientists involved in Iran’s nuclear efforts, he said that “those making the bomb are agents of threat and can be classified as combatants.”
Halbertal’s sober assessment of Israel’s ethical standards of war and how it translates into real-life situations left me even more keenly aware of the complexities and gray areas of life-and-death decisions that must be made instantly in what he called “the fog” of combat. It also left me proud of the seriousness with which Israel takes its responsibility in the ongoing struggle to maintain a moral stance against immoral enemies like Hamas and Hezbollah who seek to use the IDF’s very principles of decency and humanity against it.
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