The War Lawyers

And so the process of transcribing my interviews begins. Before I really get into it, I want to pause to reflect on the purpose of my fieldwork in Israel and to share with you some of things I was doing there. The amazing thing, or rather one of the amazing things, about fieldwork is that realities often exceed or otherwise differ from expectations.

So if you asked me what the purpose of my fieldwork was before I left  for Israel, I would have said “to interview military lawyers about the legal advice they give to military commanders in targeting operations”. And that wouldn’t have been far from the truth, even if I did avoid giving any details about what I expected to find. One of my interviewees actually asked me what I hoped to find, but I continue to find this a slightly misplaced and ethically problematic question in terms of my own research project. What I would have hoped to find is an Israel and a Palestine in peace; what I would have hoped is that there wouldn’t be a vast Israeli military apparatus that is geared toward targeting and killing Palestinians; indeed, I would have hoped that that my own study had become redundant because combatants and civilians had stopped being targeted. Research shouldn’t be about what we want or hope to find, but about what is; this is what makes research simultaneously beautiful and horrific, in my view.

Its difficult to understand the purpose of my fieldwork in Israel without knowing a little more about the broader context of my study. The following passage is taken from a research proposal I wrote before I left (I’ll be putting the full version online – under  the ‘downloads’ tab in the next few days). Consider this the abstract version:

The purpose of my dissertation is to examine the role that military lawyers play in the planning and conduct of targeting operations. The research focuses on the targeting protocols and legal principles used by three air forces in three theaters of conflict. The first theater is the International Security Assistance Force (ISAF) mission in Afghanistan: the focus here will be on targeted killing strikes carried out by the U.S. Air Force (USAF) and the Royal Air Force (RAF). The second theater is Iraq and operations conducted, again, by U.S. and British air forces as part of the coalition, Multi-National Force Iraq (MNF-I) since 2003. The third site is Palestine – primarily Gaza, but also the West Bank – and the targeted killings conducted there by the Israeli air & defense forces (IAF, IDF). I will be interviewing former military lawyers whose role is to give legal advice on operational and international law to military commanders in the planning and execution of targeting operations. The proposed work is a multi-site genealogy of targeted killing that pays special attention to the figure of the military lawyer within the broader targeting apparatus. The military lawyer is empirically interesting […], but s/he also provides a unique lens through which to interrogate the relationship between war, law and space.

The trip to Israel then was the first of three trips where I am trying to familiarise myself with the work of military lawyers and more generally to understand the legal logics and internal machinations of targeting. Each air/defense force has its own legal division (often called a legal Corps). In Israel this Corps is called the IDF Military Advocate General Corps, or MAG-C for short (see here). The Corps is split into two main divisions, a prosecution branch and an advisory branch (see figure below). I am interested only in the latter which, in-turn, is split into three sections and one of which is called the International Law Department (ILD). This is where I focused my work in Israel and it is former personel from this department who I was interviewing. I was lucky enough to interview, inter alia, every head of the ILD since the early 1990s and I can assure you that they are all very interesting people, all of whom have had an important seat at the table of what they call counterterrorism operations, and all of whom gave weighty advice to military commanders on lethal strikes. There is many things to say about these heads, and about their department, but for now I just want to note that the department has grown markedly over the last decade (from a handful of individuals to over 30), is made up of both men and women and is seen by the IDF as a very important – indeed vital – part of the military apparatus. After some initial skepticism, the lawyers and their department are for the most part viewed favourably by the commanders with which they interact; they no longer resent legal advice, but appreciate it.

MAG Divisions & Fields of Operation
MAG Divisions & Fields of Operation

The task of lawyering for the IDF necessitates that military lawyers be present in the ‘war room’ alongside military commanders, soldiers and drone pilots during the planning and often also the execution of targeted killing operations. For extremely time-sensitive operations, for example when troops are under fire, the lawyers advice is not sought. This constitutes something of a gap in their work, but it is not of great concern, first because it is a necessity (lives depends on quick decisions) and second because the hope is that the commanders themselves will make the right (legal) decision, having received prior advice and exposure to legal considerations.

Military lawyers are qualified legal experts, but they are also trained in military operational procedures, which mean that they also have expertise in matters of military importance, such as weapons technologies, ballistics and knowledge of the combat environment. Such expertise has made military lawyers very important assets to the Israeli military  over the last decade. So important have they become that they personally review every pre-planned strike and have near full access to what is known as the ‘target bank’. They are able to sift through all of the classified material; the bio of the individual targeted, the aerial reconnoissance, the photographs, the notes on why a particular target poses a threat, the weapon that has been designated to kill him or her and the proposed time and location of the attack. They review each portfolio for its legal worth; “is there a case here?” Maybe there is a case, but perhaps the relatively low value of the target means that absolutely no intended ‘collateral damage’ would be acceptable so the strike gets the lawyers approval with the proviso that this man cannot be targeted when he is at home because it is likely that his family members could also be killed. Or maybe the strike is imprudent; legal yes, but politically costly and unnecessary right now: the lawyer writes down as much on the page designated for his legal opinion, a sanction of lawfulness but a tacit vote against it taking place. The lawyers I spoke with are fully aware that law does not exhaust the question and that other considerations, ethical, political, must be taken into account even if it remains their formal role to give explicitly legal advice. It is not insignificant, therefore, that every pre-planned strike must include the opinion of a military lawyer, and must be signed off all of the way up the military chain of command and by the Minister of Defence himself (currently that would be Ehud Barak).

Danni Effroni. Chief Military Advocate General since 2011
Danni Effroni. Chief Military Advocate General since 2011 Source: Haaretz

There are several interesting points to make about the figure of the military lawyer, the first being her/his relationship to the military and, more specifically, to the military commander. The decision to strike – or not to strike – remains the sole preserve of the commander in charge of the operation (this is very important to remember). Yet the legal opinion given to the commander by the military lawyer carries so much weight that it has become imprudent for the commander not to follow what is formally called ‘advice’, but what really amounts to a legal order. The interesting thing about the Israeli military chain of command is that the lawyers are not subordinate to the commanders who they advise; they come under a parallel command structure under the Military Advocate General, and this gives them much more autonomy than their U.S. counterparts who are part of the regular military chain of command. Nevertheless, military commanders require black and white answers and the lawyers help in the distillation of the so-called ‘gray areas’. It is not difficult to imagine, therefore, that military lawyers have acquired the effective – if not formal – authority to decide whether or not a strike goes ahead. The military lawyer is tied intimately to the fate of Others. But (and this is the second point): the direct operational role of military lawyers is relatively new, emerging for the first time in the U.S invasion of Panama (1989) and the First Gulf War (1991) and becoming standard practice in the new millennium. Military lawyers and their Corps are as old as the armies and air forces in my study, yet historically their work was much more mundane and bureaucratic, involving court-martials procedures, administrative and marital law. No surprise then that one of my central research questions concerns what I call the ‘career of the military lawyer’: Why the radical change in the nature of the lawyers work, why now and with what consequences?

If these were some of the questions, only transcription and time will tell me what I might have found.

One Comment

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  1. Reblogged this on rhulgeopolitics and commented:
    Craig Jones on the ‘War Lawyers’.

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