Laws, Morals and Soldiers in the Territories

Is it moral or immoral for an Israeli soldier to refuse to serve in the Palestinian Territories, or to refuse to serve at all so long as Israel "occupies" Palestinian land?  Over the past few years a growing (if small) number of young Israelis have decided that it is immoral to serve, either in the territories or in the IDF at all.  These "conscientious objectors" have routinely been jailed for their refusal to serve, sometimes for as long as a year in prison.  Thus the question of the legality of the actions of the so-called "refuseniks" (I put this term in quotes out of respect for the original refuseniks) is settled: refusal to serve in the Territories, or in the IDF at all, for political reasons is illegal.  If their conscience prevails on them to break the law that is a decision they have every right to make. (It could even be argued that to disobey a law that one considers to be unjust is courageous; Rosa Parks comes to mind.)  It is not my goal in this short piece to examine the ideals or the beliefs of these particular individuals.  Rather, it is to use the "refuseniks" to explore the question of state vs. individual morality.

My interest is in whether or not the "refuseniks`" decisions can be considered moral, even if they are illegal.  I believe that they cannot be (not because it is inherently immoral to break the law), and moreover, refusal to serve in this instance is in fact immoral.  The basis for the immorality of the "refuseniks'" actions is rooted in the fact that as soldiers they are representatives of the state and their actions in service of the state are morally judged on a different basis than their actions as individuals.  The idea that moral action is different for the individual than for the state has a long history in international relations theory and is best expressed by the Christian theologian Reinhold Niebuhr in his landmark 1932 work Moral Man and Immoral Society, and was later expanded on by Hans J. Morgenthau in a number of writings: his 1945 essay "The Evil of Politics and the Ethics of Evil," which drew heavily on Niebuhr, is perhaps the most clear and concise example of this strand of thought. 

In the case of the "refuseniks," as soldiers they are representatives of the state and are responsible for carrying out the policies of the state.  It could be argued that those that refuse to serve at all are not actually soldiers and do not yet represent the state.  That would certainly be the case in a state with a volunteer military force.  However, in this case I would argue that the day they (are supposed to) report for duty is the day that they become agents of the state, whether they ever put on a uniform or not.  

As representatives of the state they are responsible for carrying out the policies of the state.  They are entitled to their own opinion about what they are asked to do in defense of the state, but they are not entitled to act on the basis of those beliefs so long as they remain in service to the state.  Morgenthau, in his 1945 essay writes, "The individual, acting on his own behalf, may act unwisely without moral reproach as long as the consequences of his inexpedient action concern only himself.  What is done in the political sphere, by its nature concerns others who must suffer from unwise action."  The "refuseniks" would no doubt argue that their actions will help to save future generations from the unwise policy decision of "occupying Palestinian land," and that their illegal acts are also in keeping with Morgenthau's conception of morality.

Morgenthau takes a much more immediate approach and a skeptical view of conscientious objection in a 1945 passage worth quoting at length, "the conscientious objector.... satisfies the norms of an ethics which condemns participation in the irrationality of war.  Yet, by doing so, he does not do away with war nor does he even influence the incidence of war.  If, by refusing to participate in war, this is his aim, he fails completely.  If, on the other hand, his only aim is the realization of ethical perfection in his own person, he may have realized it.  Yet its realization is completely irrelevant if not actually discreditable if the communal aim of the prevention of war is applied as a yardstick; for it may be regarded by those who are actively engaged in the struggle for the prevention of war, not only as an individual demonstration necessarily empty of political results, but also as a particular kind of personal selfishness which cultivates the peace of one's own conscience bought by abstention from meaningful political action" (emphasis added).  For Morgenthau, personal opposition to Israel's policies towards the Palestinians could rightly lead one to work vociferously to change those policies; but this action would be done when their military service had concluded and they were no longer agents of the state.  I would argue that as their attempt to change Israeli policies by these particular means has failed, the most immediate impact of the "refuseniks" is to cause someone else to be forced to carry out the very policies that they object to, and which happen to be in harm's way.  Regardless of the morality of the conflict itself, can the act of refusal to serve be considered moral when its only real effects are to assuage the conscience of the individual and to put someone else in the objectionable position s/he seeks to avoid? 

In Morgenthau's most famous and widely read work, "The Six Principles of Political Realism," he writes that the individual may say "Let justice be done even if the world perish, but the state has no right to say so in the name of those who are in its care."  An individual has the right to take a moral position and to stand by it, even at the cost of her life.  I am a vegetarian and if I were stranded on a desert island with only a hamburger to eat, I have the moral right to allow myself to starve to death rather than to violate my own moral code and eat the hamburger (for the record, I would eat it without guilt).  However, as Morgenthau writes, the state has no such right.  It is the first duty of the state to protect its citizens.  If the state decides to take an action based on a particular code of morality, "thou shalt not kill" for example, and in so doing sacrifices the lives of its own citizens or puts the state at risk it has in fact acted immorally.  Moral action for the state is to ensure its own survival and the survival of its citizens, and actions taken to that effect are inherently moral, even if the same actions are immoral for the individual.

The "refuseniks" may be good intentioned.  They wish to see a policy they disagree with changed; but good intention is not enough.  "The well-intentioned political dilettante may indeed work more evil than the ill-intentioned professional politician, and the test of good intention would destroy rather than clarify the ethical significance of their respective actions," Morgenthau wrote in 1945 (he expanded on this in his later work). 

Thus soldiers, as representatives of the state, have no right to base their decisions on moral judgments.  They are permitted (nay obligated) to act in accordance with the law, which in this case has proven not to be on their side, and, tangentially, is why the American soldiers accused of torture at Abu Ghraib prison in Iraq should be freed--they were told that what they were doing was legal-- while those who (incorrectly) told them it was legal should be jailed (as should other soldiers and officials found guilty of national and international crimes).  If soldiers are allowed to refuse to serve or to refuse orders on the basis of their own moral judgment than the entire military command structure would break down.  And for a state like Israel, constantly under threat, the consequences of that could be particularly disastrous. 

Even if you agree with their particular beliefs, if you give them the right to "conscientiously object" for this reason, what happens when others demand the same rights for reasons you disagree with?  If it is OK for the refuseniks, then it should equally be OK for Israeli soldiers to refuse to forcibly evacuate settlements even though one is wearing the uniform and the other is not (refusal to put on the uniform is the equivalent act here).  Legality is something that can be codified and people (and states) are expected to follow the law.  Morality cannot be.  Everyone's conception of morality is different and thus to allow agents of the state to refuse to take action on a moral basis is itself a dangerous and immoral act.  There is nothing stopping any of these young men and women from later getting involved politically, rather than removing themselves from politics.  Unfortunately for them, they may find that, to again quote Morgenthau, "it is incompatible for an action at the same time to conform to the rules of the political art (i.e., to achieve political success) and to conform to the rules of ethics (i.e., to perform an action good in itself)."

The role of morality does have a proper place in policymaking, which I explore in my more academic work.  For a much more nuanced discussion of these theoretical issues I recommend: William Bain (2000) "Deconfusing Morgenthau: Moral Inquiry and Classical Realism Reconsidered," Review of International Studies, Vol. 26, No. 3, pp. 445-464; Hans J. Morgenthau (1945) "The Evil of Politics and the Ethics of Evil," Ethics, Vol. 56, No. 1, pp. 1-18; Hans J. Morgenthau (2005) Politics Among Nations 7^th Ed., New York: McGraw-Hill; and Reinhold Niebuhr (2001 [1932]) Moral Man and Immoral Society, Louisville, Westminster Press.