Legal scholar outlines IDF’s ethical dilemmas

Legal scholar outlines IDF’s ethical dilemmas

In a war where the enemy doesn’t wear uniforms and where one side is trying to minimize civilian casualties while the other is intent on maximizing collateral damage to further its aims, can a “moral” war be waged?

Dr. Moshe Halbertal, who helped develop the ethics code used by the Israel Defense Forces, believes it can, even as Israel soldiers struggle daily to adhere to such a code in an “asymmetrical war” with Palestinian terrorists.

To not follow such principles is “to admit to failure” he said April 14 at Congregation Neve Shalom in Metuchen in the 28th annual Israel Segal Memorial Lecture. Halbertal laid out the ethical minefield Israel faces in confronting Hamas rocketeers, suicide bombers, and other combatants who don’t engage in conventional warfare.

“They don’t attack an army; they attack individual civilians,” he said. “They also wage a war without a front. The front is everywhere. It’s a war in cafes, in movies, even in hospitals. They don’t wear uniforms. The people with the uniforms are the Palestinian police, but they are not engaged in a war of terrorism.”

And yet, said Halbertal, although traditional engagement doesn’t apply, traditional Jewish and international ethics must still be followed by the IDF, both for moral reasons and because a society that loses its moral compass cannot survive.

Halbertal is the Gruss Professor of Law at New York University’s School of Law and professor of Jewish thought and philosophy at The Hebrew University in Jerusalem. He also teaches in the summer at the Shalom Hartman Institute in Jerusalem.

Halbertal said every Israeli soldier receives ethical training and carries a code of ethics.

“We are the most moral army in the world,” he declared, but lamented, “We have failed to let the world know Israel’s position.”

Halbertal said the Israeli military robo-calls civilians who live in targeted buildings. However, those same civilians are often also contacted by terrorist groups and told to go to the roof, forcing Israel into either abandoning the mission or killing them.

Israel’s ethical response, said Halbertal, is called “knocking on the roof” — lobbing a non-explosive shell onto a corner of the roof “to send a message” that the IDF means business.

The principle of necessity is applied to even the property of civilians who are enemy combatants. Even if “you have to break down a wall, it doesn’t mean you have to break the TV,” he said.

From speaking to IDF officials and his own children and their friends in the IDF, Halbertal contrasted what he faced in the early 1980s to what soldiers must confront today.

“When they see someone on the roof, is he there inspecting or is he up there because he is a scout?” he said. “Is he a civilian or a combatant?”

When Halbertal was appointed in 2001 to a committee established by the Israeli Joint Chiefs of Staff to draft the ethics code, he confronted extreme positions from both the Right and the Left, both of which he rejected.

The Left’s position — averting collateral damage at any cost — was impractical because civilian deaths are sometimes unavoidable to complete a mission.

“They were wrong because it is the obligation of a country to defend its citizens,” said Halbertal.

The Right, meanwhile, asserted that because Palestinian terrorists kill Israeli civilians indiscriminately, what happens to their civilians is not Israel’s responsibility.

While this was a “tempting position,” said Halbertal, it was devoid of morality. “One wrong doesn’t justify another,” he said. “It would be horrible because in a democracy like Israel, morality is part of our country’s backbone.

“You want to send your children to a war where he or she can say, ‘I did the honorable thing. I defended my country, but I did it in an honorable way.’”

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