Frames of law and the ‘prosecution’ of war

Under the ‘works in progress‘ tab I have uploaded a paper that is currently under peer review. It’s called ‘Frames of law: Targeting advice and operational law in the Israeli Defense Force‘ and it draws on my interviews with current and former IDF military lawyers about their role in targeting operations. Here is the abstract:

In this paper I draw on interviews conducted with former military lawyers from the International Law Department (ILD) of the Israeli Defense Force (IDF) about the provision of legal advice in targeting operations. Using Derek Gregory’s work on the ‘kill chain’ and Eyal Weizman’s work on the ‘legislative violence’ of International Humanitarian Law (IHL), I argue that we are witnessing a juridification of the kill chain that is at the same time a juridification of war. I suggest that operational law and the figure of the military lawyer provide an opportunity to examine the ways that law has – in different but not entirely new ways – come to matter to the conduct of war. I conclude with a reflection on Judith Butler’s ‘frames of war’ to think through the ways in which frames of law have come to structure our apprehension of targeting and war.

The research for the paper was conducted over several trips to Israel over the past two years, most of it in early 2013. Those who participated in the study spoke openly and I think honestly about their work and I hope that the paper communicates something novel about the way in which war is being fought through recourse to the law, but also that it draws attention to the personality-dependant nature of legal advice in the ‘war room’. The best way for me to explain what I mean is to share the opening to the essay. The following draws on testimony of a senior former IDF lawyer who was present at the meeting described:

IMG_20131125_115042
The Kirya, the IDF compound located in Central Tel Aviv. Photo by author.

A military commander walks into a room in the Kirya, the Israeli Defense Force (IDF) compound in central Tel Aviv. A highly sensitive operational meeting is underway; he is of high rank and it is clear to all present that he is the one in charge. Then he points to the military lawyer in the room and asks,

“Has he approved yet?”

The others around the table – the munitions expert, the senior intelligence officer, and the head of operations – this is a high rank meeting: General-level only – reply in the negative,

“Not yet”.

“Hurry up!” exclaims the commander “We don’t have time”. He leaves the room.

A “terrorist group” in Gaza has kidnapped a local individual that the IDF believes is one of their agents. The group is currently interrogating this man with “extreme prejudice” inside a building in Gaza. Those present at the meeting have reason to believe that the group are planning to kill him in about twenty minutes. This is the high-level “targeted killing team” and they must act fast, but they have come up against an operational problem. The mathematical analysis of the missile shows that no matter how the IDF fire, the next-door apartment will be 80% damaged as a result of the explosion. The military lawyer asks what intelligence they have on the apartment. The IDF have a drone feed as well as an agent on the ground but the problem is that there is zero intelligence on next door.

“We just know it’s there”, one of them added.

It is now clear to the military lawyer why he has been called into the targeted killing meeting; it involves a complex legal calculation that the targeted killing team cannot solve without the help of a lawyer.

“Can we fire the missile?” the team asks, now with only fifteen minutes to act. The lawyer pauses before responding…

“I am not the Chief of Staff, I am a lawyer and I don’t decide for you who you kill. I advise you on the risks of any decision you make and what you are doing right now is trying to throw the responsibility on me because you don’t know what to do. And that can’t happen. Not because I’m afraid of the responsibility, but because its not my job. Your job is to make the difficult decisions and I’ll tell you what are the legal risks you are going to take, and don’t get mixed up because I think you’ve lost command responsibility here.”

I won’t give any spoilers but also wouldn’t want to give the impression that IDF lawyers are there to say ‘no’ to IDF commanders because for the most part they’re simply not.  For those familiar with Eyal Weizman’s work, you’ll be able to see some parallels between his groundbreaking essays on this subject and my own small contribution but what I  have tried to do in this paper is to draw attention to a scale and space of law called ‘operational law’. The argument is that the International Humanitarian Law (IHL) that Weizman writes so wonderfully about is grounded and given life through the practice of operational law – operational law is in fact law in practice – and through specific military lawyers and instances of legal advice.

I wanted to hold off before sharing this but the ongoing assault on Gaza implores me. Why? Because since the Israeli onslaught began one week ago 1682 ‘targets’ (and counting) have been hit, 132 of them just last night (July 14) . The vast majority of these are pre-planned strikes against known and designated targets, both individuals and infrastructure which are already in a ‘target bank’. The IDF target bank is where all the targets are kept, each with their own special folder, electronic and hard copy, housed in the Kirya in central Tel Aviv, the central command of the current operation. Each target has its own file or folder containing information about the specifics of the target, its location, its ‘value’, its behaviour and patterns, its mode of transport, its contents (if known), its imagery, its proximity to civilian buildings etc.

The UN OCHA reports 194 dead (including at least 138 civilians, 36 of whom are children), 1390 injured1370 homes destroyed or severely damaged and 600,000 people at risk of losing access to water supply (as of July 15th 1500 local time).

Fewer of these strikes (we don’t yet know how many) have been ‘time sensitive’ or ‘dynamic’ meaning that they were attacked on the fly and in response to events on the ground as they unfolded (for example, the assembly of a rocket launcher by Hamas). There are several reasons why, at the moment at least, most of the bombing is pre-planned rather than time sensitive. Foremost is the fact that the IDF do not (yet) have soldiers on the ground in Gaza (though they certainly have undercover elements and a network of informers inside Gaza) meaning that IDF troops are in no immediate danger and do not therefore require urgent aerial assistance or what is known as close air support or CAS (see the prolific Derek Gregory on CAS in Afghanistan here and here). Also factoring into the equation is the fact that around 90% of rockets fired from Gaza are intercepted by Israel’s Iron Dome (see commentaries here and here) and so contrary to the IDF’s claim that 3.5 million Israelis (around half the population) are in imminent danger, the IDF can be relatively relaxed about striking specific buildings or sites even when they are being used to fire rockets at Israel. (Sadly, Israel sustained it’s first casualty of the war yesterday and this will likely be used as justification for further escalation. Yesterday, Israeli Foreign Minister Avigdor Liberman spoke of a “full takeover of the Gaza Strip”, adding that “Israel must go all the way”.)

The IDF do not therefore need to rush decision making and target approval because their troops and most Israeli civilians are in no real imminent danger. I do realise it is scary and inconvenient for Israeli’s who have their days interrupted by sirens and warnings. Then again,  at least they have an effective warning system and a safe place to run to: Gazan’s don’t, as John Stuart pointed out rather bluntly yesterday. While all this affords the IDF the luxury of time it does beg the question of why so many ‘mistakes‘ are being made or, if they’re not mistakes, why the proportionality calculations (the legal ratio of combatants to civilians killed) are so skewed in favour of Israeli military ‘necessity’ (the legal lynchpin for any military attack, and one that requires military goals to be weighed against civilian losses on the side of the enemy). Thus the putative paradox of legal advice: more military lawyers are involved than ever before and yet 80% of casualties are civilians. The military lawyers may be watching over the targets but nobody, it seems, is watching over them.

But why do I dwell on the difference between pre-planned and time-sensitive targeting, and why now?

Because each and every pre-planned target is vetted and approved by IDF military lawyers. Because the lawyers I interviewed in bustling cafe’s in and around Tel Aviv last year signed their name on a single page in a target folder that hours or days later secured its eventual destruction. Because ‘targets’ are homes and people, not scientific or legal abstractions. Because the targeted have no means of redress. Because targets that have been through juridical review are every bit as deadly as those that haven’t.  And because a new round of military lawyers are vetting and approving the next round of targets, and are working around the clock so that the kill-chain never stops. Prosecuting the war, they call it.

If the ground troops do go in, worse will come and the military lawyers will allow the IDF a much greater degree of flexibility knowing that their troops lives are on the line. Only then will this war reach the proportions of Operation Cast Lead and we can only hope that it doesn’t.

As I say, it’s a work in progress and I’d welcome any and feedback and comments.

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