Morality vs. security
By Ze'ev Segal
Haaretz, December 6, 2004
More than two years ago - shortly after dropping the one-ton bomb on the home of the Gaza Hamas leader Salah Shehadeh, killing 16 persons and wounding numerous others - Israel Air Force commander Major General Dan Halutz held a debate in his office about "the language of the High Court of Justice." Without any connection to the event, Halutz and senior air force officers asked a university lecturer about the principles of judicial criticism and the boundaries of the High Court's intervention in security considerations.
Those attending the debate could never have imagined that Halutz himself would become the respondent in a petition presented to the High Court by the Yesh-Gvul movement and left-wing activists. Nor could they have guessed that his comments about that assassination would lead a three-judge panel to order him to present his "moral position" vis-a-vis killing innocent people as a result of bombing a densely populated area. The petitioners are asking the High Court to demote Halutz to deputy chief of staff and to launch a criminal probe against him for giving the order, which they brand as "patently illegal."
They also base their claim on Halutz's statements in an interview to Vered Levy-Barzilai ("The high and mighty," Haaretz Magazine, August 22, 2002). Halutz commented, inter alia, about his decision to drop the bomb: "Everything that happened prior to the operation is in keeping with my moral standards." He also said: "I feel a slight blow to the plane as a result of the release of the bomb. After a second, it passes. And that's it. That's what I feel."
At the High Court's order, Halutz explained last week that he sees himself as a moral person and that he said those things to back up his subordinates following the harsh criticism leveled at the operation in the media. He said: "The sensitivity to harming innocent people is a part of me and an inseparable part of the air force's everyday activity." Halutz also said that he would have refrained from the operation had he known its results in advance.
Eyebrows were raised upon reading Halutz's statements in Haaretz, which he now interprets in a way that completely changes their meaning. Many eyebrows were also raised when the High Court ordered him to confirm or deny the statements attributed to him in the interview and to express his moral position vis-a-vis these comments, before it rules on the petition.
Those objecting to the court's demand argue that it calls for a debate in an inappropriate framework and that the decision of who will be deputy chief of staff is not supposed to be discussed and decided in the High Court.
The critics who urge placing the High Court "out of bounds," as far as senior appointments in the Israel Defense Forces or outside of it are concerned, are in fact demanding the prevention of helpful criticism concerning appointments to senior public positions, the holders of which are supposed to set an example to their subordinates.
In 1999 the High Court prevented the promotion of Brigadier General Nir Galili to major general after a disciplinary procedure ruled that his conduct was unbecoming an officer. The court attributed crucial weight to the value-related and moral aspects, which it preferred over the military-security aspects of the appointment.
However, the High Court did not prevent Galili's promotion to another senior position "better suited to his qualifications." Then-chief of staff Shaul Mofaz decided following the verdict not to promote Galili, and the latter left the IDF. In 2001 the High Court disqualified the appointment of Ehud Yatom to the head of the Anti-Terror Council, since his confession to killing the terrorists in the No. 300 bus affair deprives him of the required "moral authority" to serve in a position that includes "guiding and training many others."
These approaches are in keeping with the public recognition that the High Court is the highest moral authority in the country. In a comprehensive study conducted some 10 years ago, some 70 percent of those polled agreed with this. Even if the public's confidence in the High Court of Justice has eroded to some degree since then, it appears that this position is still intact.
Based on this recognition and following its previous rulings, the High Court should not have refrained from ordering Halutz to clarify his moral and value stands on such a significant issue relating to Israel's moral strength. It is possible that Halutz clarified his statements to appease the judges, who have already made their contribution by directing the question at the deputy chief of staff, who is supposed to set an example to many soldiers.
The extent of the High Court's intervention in the chief of staff's considerations regarding officers' appointments is naturally extremely limited. Only an appointment that is unfeasible in an extreme way could serve as a reason for intervention, and according to past rulings, even in "borderline cases," the court prefers to restrict itself and refrain from interference.
In the Halutz verdict the judges will not be able to do so. If they reject the petition, they will have to clarify the moral standards that the IDF senior commanders are required to uphold.
