New paper: travelling law (and travelling theory)

I have just added a new paper under the ‘Downloads’ tab: you can access it here [LINK REMOVED UNTIL AFTER PUBLICATION].

Its a book chapter for a forthcoming collection edited by Alex Lubin and Marwan Kraidy called Shifting Borders: American Studies Between The American Century And The Arab Spring (University of North Carolina Press), the product of the (superb) Shifting Borders Conference at the American University of Beirut in January 2012. It’s called ‘Travelling Law’ and it focuses on the law and geography of targeted killing, and argues that targeted killing law is a particularly potent form of lawfare that is invested in and is contributing to what Frédéric Mégret has called the ‘deconstruction of the battlefield‘ (for more on Mégret and the changing geographies of war see the indefatigable Derek Gregory here and here). The paper traces the so called U.S. ‘drone warfare’ of today back to one of its overlooked origins in Israel, and in particular to the start of the Second Intifada. Israel was the first state to openly declare that it conducted assassination (although obviously the IDF thought of a more palatable name, see here) and as I argue in the opening page:

“Though it might now seem difficult to believe, the European Union and the U.S. condemned the attacks [Israeli assassinations] and rejected the Israeli legal justification. British Foreign Secretary Jack Straw claimed that the assassinations were “unlawful, unjustified and self-defeating”. The E.U. said the policy amounted to “extrajudicial killings”, while U.S. State Department spokesman Richard Boucher said such action was “heavy-handed”. The U.S. government made it repeatedly clear that it opposed targeted killings. An international fact finding mission, established by President Clinton and led by former U.S. Senator George Mitchell refused to accept the Israeli view that the threshold of ‘armed conflict’ (the legal terminology for war) had been crossed. The Mitchell Report dismissed the idea as being “overly broad” and noted that the “IDF should adopt crowd-control tactics that minimize the potential for deaths and casualties”, urging further that “an effort should be made to differentiate between terrorism and protests.” The message was clear: terrorism could not legitimately be dealt with via recourse to war, and Israel should revert back to the more traditional law enforcement approach.”

Ultimately, I argue that the ‘usefulness’ of the trailblazing Israeli paradigm of targeted killing  to the U.S. was in its legal conceptualisation of the Second Intifada as a ‘armed conflict’. Only a year after the Intifada had began, George Bush famously signed the Authorization for Use of Military Force, a law that putatively gave the U.S. power to exercise “necessary and appropriate force” not just in Afghanistan and Iraq but elsewhere and potentially everywhere. U.S. drone warfare, both in the early days of Bush and the CIA in Yemen and Pakistan and today with Obama in [who knows where, but at least] Yemen, Somalia, and Pakistan, is a radicalized and geographically expansive version of something the Israeli’s once called “an armed conflict short of war”. The U.S. attempt to defy international consensus by expanding the battlefield and deregulating both the real and imaginative geographical boundaries of war (even though these boundaries have always been fluid) is being achieved not by abandoning international law, but precisely through recourse to it. This is, I argue, lawfare par excellence and I write against the tradition of neoconservative lawfare which holds that lawfare is, by definition, that which the  diabolical enemy Other does to the law-abiding ‘West’. There is, of course, a colonial history to lawfare (John and Jean Comaroff are our best guides here) and although I don’t get to it in the paper, I do signal its importance for understanding and historicising the ways in which law has long been a weapon meted to justify war.

The remains of where Saleh Shehade once lived. The Israeli Air Force bombed his residence in 2002, killing his wife and 12 children in what remains one of the most controversial of Israel's targeted killings.
The remains of where Saleh Shehade once lived. The Israeli Air Force bombed his residence in 2002, killing his wife and 12 children in what remains one of the most controversial of Israel’s targeted killings. Source: OpEdNews

Hopefully the empirics are interesting enough and in the paper I draw for the first time from my interviews (just one actually) with Israeli military lawyers. But I’m also interested in the transnational modalities and mobilities of law, hence the title (and more on which soon from the conference on Transnational American Studies at the University of Beirut next week). Most directly, I borrow the title from Political Scientist Iza Hussin whose work  Circulations of Law draws from colonial theories of law to understand the transit of law from colonial Britain to India, Egypt, Malaya and elsewhere. But I’m also indebted to Edward Said’s essays on ‘travelling theory’ (I thank Derek Gregory for pointing me to these) and in a less direct way to the literature on ‘policy mobilities’. What I try to understand through the paper is the question of how law travels and (in this particular case) how targeted killing law travelled from Israel to the U.S and beyond. I discuss Hussin’s work in the paper but don’t have space to get to Said, so just want to add a quick word or two here.

In his original essay on travelling theory Said insisted that the movement of ideas is “never unimpeded”, and that the itinerary of theory is inevitably resisted and must necessarily negotiate “conditions of acceptance”. What worried Said most, however, was that the radical and critical potential of theory often tends to be lost as it moves from its point of origin to its new locations and uses. His discussion is of Lukács‘ theory on reification which Said believes was intended as an “inducement to insurrectionary action”, but by the time his ideas were picked up by European students and readers of Lukács, the ideas of his theory had, according to Said (in a second essay in his Reflections from Exile):

“shed their insurrectionary force, had been tamed and domesticated somewhat, and became considerably less dramatic in their application and gist. What seemed almost inevitable was that when theories travelled and were used elsewhere they ironically acquired the prestige and authority of age, perhaps even becoming a kind of dogmatic orthodoxy.”

The conclusion, Said realised, was rather cynical, but he thought it not unwarranted:

“The first time a human experience is recorded and then given a theoretical formulation,  its force comes from being directly connected to and organically provoked by real historical circumstances. Later versions of the theory cannot replicate its original power; because the situation has quieted down and changed, the theory is subdued, made into a relatively tame academic substitute for the real thing, whose purpose in the work I analysed was political change.”

There is an irony here, of course, with my own borrowing of Said’s theory on travelling theory and I hope that in my own work the injunction to insurrection – or at least the possibility of critique – has not been lost, even though I am compelled to write a slightly different version of the itinerary of theory (or, in my case, law).   Israel used a paradigm of war to legally justify its targeted killing policy and the U.S. subsequently borrowed and expanded this framework. But like anything else, law does not travel alone and no legal ‘transplant’ is an exact replica of the ‘body’ from which it came; it requires a carrier as well as a receptive (legal and political) community. My aim in the paper  is not to reconstruct a cause/effect ‘moment’ in which Israeli targeted killing is merely ‘transplanted’ to the U.S. Rather, I propose that in order to understand how targeted killing law has travelled, it helps to conceive of law as something richer than a dead letter or a static document (what Latour would have called an ‘immutable mobile’) and to consider the way in which – as David Delaney would have it – law is “worlded”. Indeed, to push the point even further, and as theorist of comparative law Edward Wise has written: “legal history, to be genuine history, requires, first of all attention to evidence both about law and about the contexts in which it is embedded.”Much work and production has gone into making and shaping targeted killing and we should remember that an orgy of senior civil and military lawyers (the subject of my dissertation) military commanders, world leaders, legal scholars and a host of other experts were – and are – involved in packaging, transporting and unpacking the law(fare) of targeted killing.
Said had a particular sort of theory  – a decidedly critical theory – in mind when he was discussing how ideas travel, hence why he worried that in and through circulation, the criticality of theory might be lost; the idea becomes weak for it no longer takes political change as its end. But what of other kinds of theory, and other items of travel? The law of targeted killing as conceived by Israel was perhaps no less radical than Lukács’ theory of reification, although it was certainly used for different ends. Israel’s creation of a legal paradigm to justify targeted killing in effect legalized assassination, simultaneously  abolishing it from language. The idea was opposed; it met resistance even from those whom we would have thought would see in it a strategic value and use. But the roadblocks to travel were soon moved by the tumultuous events of 9/11 and as former IDF lawyer military Daniel Reisner ironically recalls:  “it took four months and four aircraft to change the mind of the U.S. government”. The legal ideas and practices which moved from Israel to the U.S. are documented in the paper but what is worth emphasising is the fact that the radicalness of Israel’s brazen legal thesis was not only successfully transplanted, but has thrived and indeed grown. The U.S. used Israel’s understanding of the Second Intifada as a war as an injunction not so much for an insurrection but perhaps as a weapon for quelling multiple insurrections in the global borderlands. The problem with travelling law then is perhaps not that its radical potential may be lost in transit, but precisely that that it may be fully realised at the next port of call. Said, of course, realised as much by the time he revisited the idea of travelling theory in 2000.
“As a way of getting seriously past the weightlessness of one theory after another, the remorseless indignations of orthodoxy, and the expressions of tired advocacy to which we are often submitted, the exercise involved in figuring out where the theory went and how in getting there its fiery core was reignited is invigorating – and is also another voyage, one that is central to intellectual life in the late twentieth century
A digression from the post I intended to write, but all the same I welcome any and all comments on the paper. Happy New Year and thanks for joining me for the last!

One Comment

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  1. Reblogged this on rhulgeopolitics and commented:
    A stunning sounding new paper on ‘Travelling law’ from Craig Jones

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