Frames of law: targeting advice and operational law in the Israeli military.
Keywords: Israeli military, targeting, war, legal advice, operational law, legal pluralism
"Targeting is the sine qua non of warfare. ... Reduced to its essence, war is about attacking the enemy. The law of targeting consequently lies at the very heart of the law of war"
Schmitt (2012, page vii)
"There is no life and no death without a relation to some frame."
Butler (2009, page 7)
War, law, and targeting advice
Over the last decade and a half there has been a renewed interest in the idea of war as a juridical operation. Central to these accounts has been the assertion that war, violence, and law do not occupy separate spheres, but rather animate one another in a variety of ways. New concepts have emerged to grapple with putatively new problems posed by this commingling of the legal and the lethal. In 2001, a prominent US military lawyer proposed the neologism Tawfare', which he defined as "the use of law as a weapon of war", and argued that it has become the "most recent feature of twenty-first century combat" (Dunlap, 2001, page 5). Scholars from diverse backgrounds seem to agree, even if critical legal geography has mostly failed to consider spaces of war as spaces of law (cf Delaney, 2009; Smith, 2014). "Warfare", writes critical legal scholar David Kennedy (2006, page 6), "has become a modern legal institution." Similarly, Eyal Weizman (2010; 2012) has written of a 'humanitarian present' animated in large part by the warp and weft of war and law. Derek Gregory (2006; 2011a) has insisted that we read the wars conducted in the shadow of 9/11--the constellation of wars that seem to be generating the contemporary interest in war and law--not only as wars on law (and specifically international law) but also as wars conducted through law.
As I have argued elsewhere, these critiques are not entirely new (Jones, forthcoming). They owe much to rich sociolegal and philosophical critiques of law and especially to critical legal scholarship such as critical legal studies and Third World approaches to international law. However, the contemporary literature on lawfare seems to tacitly assume that the conduct of war through law is somehow a recent development (cf Angie, 2007; Kinsella, 2011). For example, Dunlap never tells us why the kind of anti-American lawfare that he has in mind emerged only in the 21st century and not earlier. It is also not clear in Kennedy's account of war/law when warfare became a "modern legal institute", and Weizman's analysis of Israeli violence in Gaza does little to clarify exactly when--or why--the "age of lawfare" began (2010, page 17).
Yet, as several contributions in this special issue so artfully demonstrate, even if the novelty of this dance between war and law has been overstated, it does not mean that the choreography has not--is not--changing in new and interesting ways. My focus is on the involvement of military lawyers in targeting operations in the Israeli military: a development that took place for the first time in 2000, and which coincided with the beginning of Israel's so-called 'targeted killing' policy. This is an account of how military lawyers in Israel came to be in a position wherein they were doing much more than merely advising commanders on where and under what circumstances the military can (legally) kill certain 'terrorists' and civilians. Military lawyers also approved and effectively decided the outcome of lethal operations. In doing so, they also actively expanded the definition of what constitutes a 'lawful target'. To make the case, I draw from interviews conducted with former senior military lawyers from the Military Advocate General Corps (MAGC) of the Israeli military.
This paper deepens our understanding of how what Gregory has called Tate modern war' 'gets done'. I am interested in how the conduct of war is increasingly represented not as a practice of eliminating or destroying targets but rather as a deliberative and careful process of selecting and 'prosecuting' them, to borrow a term popular among military lawyers. This is not to argue that the juridification of the kill chain provides a set of mechanisms that render our apprehensions of war and targeted killing somehow more 'complete', nor to argue, as several others have, for more transparency concerning the legal principles and protocols that govern targeted killing (eg, Alston, 2010). The aim here, pace Fleur Johns' important injunction, is to direct "attention toward those normative practices that already regulate critical decision-making surrounding targeted killing" (2013, page 9, my emphasis). Thus, this paper offers two contributions to the literature on war and law.
Firstly, it deepens our understanding of one of the most central features of war: targeting. In his writing on drones and late modern war Gregory (2011b, page 196) describes the kill chain as "a dispersed and distributed apparatus, a congeries of actors, objects, practices, discourses and affects, that entrains the people who are made part of it and constitutes them as particular kinds of subjects." One of Gregory's points is to call into question the putatively and purely technical character of the US Air Force kill chain and to insist that the production of targets is a "techno-cultural accomplishment" (Gregory 2011b, page 193, my emphasis). What I want to show, and expanding Gregory's analysis to Israel, is that now, more than ever, targeting is made possible by a set of practices which not only are 'technocultural' but are in a crucial sense also technolegal.
Second, this paper seeks to develop Eyal Weizman's critical insight that international humanitarian law (IHL) is wielded by Israel as a mechanism to wage war and proliferate violence against Palestinians, especially in Gaza (Weizman, 2010; 2012). While I am deeply sympathetic to Weizman's analysis--and especially his argument that law extends rather than limits violence--my argument differs from his in that I argue that IHL gets us only so far in understanding how militaries actually deploy law on a day-to-day basis to make specific operational decisions about life and death. Pace the legal pluralism literature, I argue that we must keep a plurality of legal regimes--or what Valverde (2009) would call jurisdictions--in view if we are to understand the multiple levels on which law activates and animates war and the 'prosecution' of targets. Following von Benda-Beckmann and von Benda-Beckmann (2014), Valverde (2009), and Smith (2014), I argue that the law of targeting is plural in two senses: first, its spaces are governed by more than one legal rule or regime, and second, the legal regimes governing targeting--be it a legal memo or a new international treaty--'come and go' in the sense that they fade in and out across time. I therefore supplement Weizman's analysis by drawing our attention to the spaces where law is 'operationalized'. What emerges, I hope, is a fuller understanding of how law vitalizes war but also a sense in which military lawyers have become important figures in the war-law-space nexus.
The lawyers corps: context and method
Military lawyers in Israel are not new and neither is the use of law to extend and legitimize violence in the Occupied Palestinian Territories (OPT) (Ben-Naftali et al, 2009; Yiftachel, 2006). The modern MAGC developed from the legal service of the Hagana, a Jewish paramilitary organization in what was then the British Mandate of Palestine (1920-48). The Hagana legal services were formalized into the Israeli military in 1948, and the modern MAGC came into existence in 1956 (MAGC, no date a). Its goal, in partnership with military commanders, remains to "promote justice and the integration of the rule of law within the army; and with determination that stems from striving for excellence in order to bring the IDF [Israeli Defense Force] to full success on the legal front" (MAGC, no date b). This requires MAGC lawyers--who today number around 300 (Mandelblit, interview)--to perform a number of tasks pertaining to four primary functions: the enforcement of military justice and disciplinary issues, the provision of legal advice, the writing of military legislation and policy--including the drafting and promulgation of the military orders that govern the OPT--and finally, legal education and training.
My focus is on the legal advice aspect of the MAGC's work and in particular on the provision of legal advice in targeting operations conducted by the International Law Department (ILD). Most of the interviews I conducted were with senior former legal advisers in the ILD, and I also interviewed two former Military Advocate Generals (the title given to the head of the MAGC).(I) The ILD has existed in its present form since the early 1990s, when it consisted of only a handful of lawyers. Today, the ILD has grown into a unit of about thirty to thirty-five lawyers, plus support staff and around thirty reservists. As the department has grown, its lawyers have become more influential and more widely respected; the ILD now holds a "very important place in key military decision making" (Benjamin, interview).
Access to MAGC lawyers was not unlimited, and key legal opinions concerning important targeting decisions remain classified, as do specific rules of engagement (ROE). My requests to conduct formal and structured interviews with active-duty lawyers were at first approved but, for reasons that were never made clear, were later unapproved. I therefore rely principally on interviews with former senior military lawyers and on publicly available written materials. These access and classification constraints certainly affected the methodology of this study but not in an exclusively negative way.
Interviewing former military lawyers enabled me to approach those who had previously held very senior positions. This is crucial because it is only lawyers with the rank of colonel (or above) who have the authority to give the final legal approval to preplanned targeting operations. Even more significantly, only the respective heads of the MAGC and ILD have the power to expand and change the definition of what the Israeli military considers a 'lawful target'. Conducting interviews with former lawyers had the additional advantage that they could speak openly about their work with a reflexive hindsight--and even distance--that active service lawyers may not have. Lest these views be seen as unrepresentative of current Israeli military practice, it is important to note that the distinction between active military service and civilian life in Israel is blurred by the category of reserve service. Israeli military reservists are much more than a wartime draft; they often maintain active links to their former units, are involved in training the younger generation, and receive ongoing routine training. Several lawyers reported that they maintain a keen interest in the ongoing work of the MAGC and ILD, while others continue to attend the same conferences and socialize in the same circles. Associations between reserve and active service remain fairly porous, as one might expect in a highly militarized society and in a military with a high turnover of personnel. This meant that many of the lawyers I interviewed, though formally retired or in reserve service, had a good working knowledge of current MAGC and ILD practice.
In singling out the military lawyer I do not mean to suggest that legal advice and operational law are the only or even the predominant mediums through which lives in the OPT are--to use Butler's language--rendered killable. To the contrary, the successive recent disproportional campaigns of military violence against Gaza--operations 'Cast-Lead' in 2008-09, 'Pillar of Cloud' in 2012, 'Protective Edge' in 2014--to say nothing of the founding violence of the Nakba in 1948 and the ensuing five decades of occupation (and counting), clearly show that Israeli violence is guided by a powerful and enduring colonial Zionist ideology (Gregory, 2004). In the face of such violence--2131 Palestinians were killed and 500000 displaced in Israel's latest installment of spectacular violence (UNOCHA, 2014)--it is difficult to imagine how the legal calculation of a handful of military lawyers could make any meaningful difference to an increasingly lethal Israeli military policy. And yet, as I will show, they do affect operational decision making in important ways and serve a vital legitimizing function, even though they remain but one lubricated cog in a vast military machine.
I want to emphasize that legal advice and the juridification of the kill chain are not the sole means of rendering military operations at once more effective and more legitimate. Rather, my findings on targeting advice should be understood to work in consonance with a series of legitimacy-producing technologies that would include, inter alia, the permissive military ethics written and developed by 'military ethicist' Asa Kasher and former Air Force General Amos Yadlin (Kasher and Yadlin, 2005; cf Walzer and Margalit, 2009). Not unlike law, Israeli military ethics also work as a justificatory norm, or, as James Eastwood (unpublished, page 1) usefully argues, "military ethics should not be viewed as a constraint on the IDF but instead as an enabling factor in the resort to force." It would also include the turn to 'precision weapons' and 'surgical strikes' that enables advanced militaries like Israel to claim that weapons technologies are improving at such a rate that they are able to measurably reduce the scope of 'collateral damage' and thus minimize civilian casualties (Witman, 2013; cf Zehfuss, 2011). The Israeli court systems--both civilian and military--are also integral parts of the machine that legitimizes Israel's war against the Palestinians (Gross, 2006; Hajjar, 2005; Kretzmer, 2002), and, as we shall see, the High Court of Justice (HCJ) lent great weight to the legality of targeted killing in its controversial decision on the matter in 2006. The obvious yet crucial point is that law and operational legal advice has been one frame among many that have been used by Israel to lend legitimacy to the occupation and more recently, to its assassination policy.
Paradigms of war and the juridification of assassination
To fully understand how military lawyers came to play such an important role in targeted killing operations, it is necessary to understand the shift in political and legal paradigms that took place in Israel following the outbreak of the second intifada in September 2000. As far as Israeli military lawyers were concerned, the intifada represented a radically new and exceptional situation:
" The rules of engagement for the IDF in the West Bank and Gaza Strip have been modified in accordance with the change in the situation. Prior to the violent events, 'police rules of engagement' were applied. ... the situation has now changed. The Palestinians are using violence and terrorism on a regular basis. They are using live ammunition at every opportunity. As a result, Israeli soldiers no longer are required to wait until they are actually shot at before they respond" (IMFA, 2000).
Here we witness the transfer of risk away from Israeli soldiers (who used to be able to fire only in self-defence but who henceforth can fire preemptively and unprovoked) to the Palestinian population, a move that was later incorporated into Israeli military doctrine and written into the TDF Code of Ethics'. Shortly after the intifada began, the Chief of Staff, Shaul Mofaz, telephoned the MAGC asking Commander General Menachem Finklestein (then MAG) and Col. Daniel Reisner (then head of the ILD): "Am I allowed, if I identify a terrorist leader on the other side, am I allowed to kill him--publicly, not using clandestine 007 techniques? Can I kill him, and if so under what conditions?" (Reisner, interview). The MAGC response to Mofaz speaks directly to Weizman's (2010) point that law authorizes and channels violence, and does not prevent it: "We came up with a legal opinion which [said] that on the basis of our understanding of the law ... we think that you can target an enemy terrorist, intentionally target an enemy terrorist if you fill five conditions." (Reisner, interview)
I will return to these conditions--there were actually six--but must first underscore the importance and novelty of this foundational legal opinion. The legal contention was that Israel had entered what MAGC lawyers termed 'an armed conflict short of war'. The rationale was that placing the intifada in the context of war (rather than civil unrest or police operations) would deny the applicability of more restrictive legal regimes such as international human rights law (IF1RL) or traditional law-enforcement approaches. In these paradigms, unlike in IHL, targeted killing is prohibited in all but the most exceptional of circumstances because they place far greater restrictions on the use of lethal force (Alston, 2010). These details are important, not least because they show that the legal ground that Weizman argues became so vital in unleashing disproportionate violence in 'Cast-Lead' in 2009 and in subsequent wars was actually prepared nearly a decade earlier.
On 9 November 2000 the Israeli Air Force (IAF) assassinated Flussein Abiyat, a senior member of the Palestinian political party Fatah, who was driving his jeep through the Palestinian village of Beit Sahour, near Bethlehem. Later that day, and for the first time ever, the Israeli military publically admitted responsibility for carrying out what seemed to be an assassination (Jones, forthcoming). (2) In 2001 Attorney General Elyakim Rubinstein made the case that the various terms used to describe Israel's assassination policy--such as 'liquidations' and 'extrajudicial killings'--were damaging and proposed sanitizing terms instead: in Hebrew they would be called [TEXT NOT REPRODUCIBLE IN ASCII] (sikul memukad), which translates as 'focused prevention' or 'focused foiling'. In English, assassinations would be referred to as 'targeted killings'. These terms are euphemisms designed to normalize extrajudicial killings. What makes targeted killing distinct from assassination is that it involves an open assertion of the legal right to kill. So whereas assassinations by Israel pre-2000 are said never to have taken place and not to require legal advice because of their illegal nature, the advent of targeted killing in 2000 required an extensive legal apparatus, including the deployment of military lawyers in the planning and execution stages of these operations.
Killer criteria: layers of law
While the paradigm of war and the language of IHL proved a powerful juridical regime through which targeted killing could be justified at the political and strategic level, it still required a modus operandi to ensure that it functioned on a daily, operational basis: the law needed to be 'worlded' (Delaney, 2010).
After assassinating Abiyat in November 2000 the General Security Services (GSS or Shin Bet) began pushing for the 'prosecution' of more targets and by the end of the year the military had assassinated fifteen people. By the end of 2003 Palestinians were being targeted at a rate of one every four days (B'Tselem, 2014a). With targets in long supply, the military needed an answer to Mofaz's question as to whom and under what circumstances they could 'prosecute' suspected 'terrorists'. In early 2001 the MAGC issued a legal opinion setting criteria to govern the nascent policy (Reisner, interview; Alon and Harel, 2002):
(1) All targeting must comply with the rule of proportionality under IHL, meaning that the anticipated 'military advantage' gained by conducting a targeted killing must be proportional to anticipated civilian casualties and the destruction of civilian infrastructure;
(2) Only combatants and those 'directly participating in hostilities' (DPH) may be targeted. The crucial rider here was the MAGC's definition of what constitutes 'direct participation'. The legal opinion on DPH fastened on something called the 'theory of the circles of involvement in terrorist organizations', which Daniel Reisner explained as follows: those in the center (the leaders and commanders) and those in the second circle (the "foot soldiers", "the actual people who pull the trigger") were considered legal targets. Those in circle three ("logistics and other supporters, the driver, the guy who provides ammunition, et cetera") could be construed as legal but because the question of what constitutes 'support' was especially difficult, the MAGC advised the military to focus on circles one and two because they deemed them "undisputedly combatants". The final, outer circle (those "who support the organization politically or religiously") was not considered legal to target;
(3) Arrest rather than kill a suspected 'terrorist' if possible. A killing can be enacted only after: (a) appeals to the Palestinian Authority calling for the arrest of the 'terrorist' have failed or, (b) the Israeli military has tried and failed to arrest the suspect. The critical concept here was what constitutes a 'feasible arrest opportunity'; hence condition four:
(4) 'Terrorists' under Israeli security control (as defined by Israeli security) cannot be targeted because in these areas there is a feasible arrest opportunity. If the target is located in areas outside of Israel's security control, however, "a viable arrest opportunity is much more difficult" and therefore the target can be struck. This requirement explains why Israel's 'withdrawal' from Gaza in 2005 was so crucial: from this point on Israel claimed that it no longer had security control over Gaza and therefore had to resort to lethal force against 'terrorists' there. This explains why all nearly all targeted killings since 2005-06 were conducted in Gaza and not the West Bank;
(5) Ministerial level approval from the Defense Minister or Prime Minister must be sought prior to an attack. This was introduced as a "bureaucratic way of keeping the numbers down", according to Daniel Reisner. Between 29 September 2000 and 7 July 2014, 543 Palestinians were killed in targeted killing operations; 191 of these were civilians (B'Tselem, 2014b);
(6) Assassinations are not to be carried out in retribution for past events. They must be aimed at 'terrorists' who plan to carry out a terror attack in the 'near future' (Alon and Harel, 2002).
These requirements served as the primary legal guideline of the assassination policy for its first six years. In 2001 the Attorney General approved the legal opinion (Alon, 2001). Samual Mofaz also accepted the opinion but thought that the military was not ready to implement it: "We need to interpret it. When is an 'arrest viability' not viable? What does proportionality mean? These are good questions but we want them [lawyers] in the room with us when we make these decisions." The MAGC obliged.
Israeli commanders at the time were becoming increasingly aware of the threat of universal jurisdiction and the growing use of transnational legal activism scrutinizing military activity. In 2002 the International Criminal Court (ICC) was established, thus providing a formal avenue for human rights groups and other nonstate actors to pursue these claims against Israeli politicians and military personnel. The Israeli government refuses to recognize the jurisdiction of the ICC and has fought vociferously against the organizations--especially Israeli organizations--that collect evidence that could be used in proceedings against Israelis (Gordon, 2014). Nevertheless, in 2001 a Belgian court indicted Ariel Sharon, the then Foreign Minister, for crimes committed in the Sabra and Chatila refugee camps in Beirut in 1982, and since then over a 1000 lawsuits alleging war crimes by Israeli ministers and military personnel have been fded around the world (Sapsted, 2009). The Israeli government and the MAGC have become very concerned about these claims, especially since the publication of the Goldstone Report in 2009 (the UN investigation into war crimes committed by Israel and Hamas in the 2008-09 war), which was highly critical of Israel's targeting policies and protocols. In light of this legal onslaught, it is hardly surprising that Israeli commanders would want legal cover for their actions.
In 2003 the High Court of Justice eventually accepted a petition concerning targeted killing. The Court decision--handed down by Justice Aharon Barak in 2006--affirmed the legality of the targeted killing policy and set conditions to govern its legality. The conditions set by the Court were remarkably similar to those laid out in the MAGC legal opinion, though this is perhaps unsurprising given Kretzmer's (2002, pages 2-3) observation "that in almost all of its judgments relating to the Occupied Territories, especially those dealing with questions of principle, the Court has decided in favor of the authorities, often on the basis of dubious legal arguments."
In one key instance, however, the HCJ went further than the MAGC opinion. The Israeli military had requested the Court to help invent a new third category between civilian and combatant called an 'unlawful combatant' (HCJ, 2006, paragraph 27). This new category of person could be killed (on the basis of their status as a combatant) but would not be afforded the rights accorded to combatants (such as prisoner of war protection). The Court rejected the legal basis for recognizing this third category, but found a creative way to operationally achieve the same ends by adopting a doubly expansive interpretation of DPH. The first extension concerned the definition of 'direct participation': the Court expanded the scope of legality to the third circle, to those who provide logistical and other support to 'terrorists'. Even more controversially, the Court also said that the homes of 'terrorists' and those who allowed 'terrorists' to use their home would also be considered as taking a 'direct part in hostilities' and could therefore be targeted. The second expansion concerned the element of time that is built into the concept of DPH. According to the 1977 Additional Protocol One of the 1949 Geneva Conventions:
"all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless and for such lime as they take a direct part in hostilities" (ICRC, 2008, my emphasis).
This provision was designed to protect civilians, and this right to protection extends even to those civilians who are planning to take or who had previously taken a 'direct part in hostilities'. However, the Court rejected this rule:
"a civilian who has joined a terrorist organization which has become his 'home', and in the framework of his role in that organization ... commits a chain of hostilities, with short periods of rest between them, loses his immunity from attack 'for such time' as he is committing the chain of acts. Indeed, regarding such a civilian, the rest between hostilities is nothing other than preparation for the next hostility" (HCJ, 2006, paragraph 39). By inventing the category of a 'chain of hostilities,' and by claiming that 'rest' amounts to
'preparation' (thus constituting participation), the Court effectively transformed a temporary action into a permanent combatant status. With it, the Court radically expanded the definition of a 'legal target'. What was a brazen legal opinion only six years earlier became a practice endorsed and normalized by the highest court in Israel by 2006. Moreover, in expanding the definition of DPH the Court set precedent for and gave strength to future MAGC legal opinions and advice that would, when the operational circumstances required it, push the envelope on permissible targets even more. To these operations I now turn.
Lawyers in the kill chain
Military lawyers provide advice at two key stages of military operations: the planning (deliberative) stage and the live (dynamic) stage. This section focuses on preplanned targeting and in particular on the power of the military lawyer to produce an ever-expanding scope of targets through legal classification. The following section focuses on dynamic targeting and the more immediate impacts of legal advice.
For preplanned operations military lawyers provide "legal advice to the IDF on a range of issues including with regards to the formulation of Rules of Engagement and legal assessment of potential targets" (MAGC, 2012, page 5). Target lists are drawn up by the GSS and are then prioritized before being viewed by a special committee composed of senior ranking military officers and at least one military lawyer with the rank of General or above. The committee, which is referred to colloquially as the 'targeted killing team', is then responsible for the vetting of individual 'target folders' in the 'target bank'. Each operation has what is called an 'operational order', the legal section of which governs "the legal principles with regard to particular targets", including the stipulation of prohibitions (1MFA, 2009, page 83). In planning meetings, which can involve up to twenty people and typically run for 60-90 minutes, the lawyer is expected to speak quickly (anywhere between two and five minutes) and to put the 'bottom line up front', to facilitate quick decision making (Libman, interview). There is a special page inside each target folder--these folders contain a mix of printed and electronic files--where the legal adviser writes his or her opinion on the operation, often only a line or two. Sometimes this will be straightforward and the target receives legal approval. Other times the lawyer will set conditions and only when these conditions are met can an operation proceed.
Unlike the general legal criteria outlined in the previous section, these are what are known as rules of engagement or ROE. ROE provides much more detailed instructions for specific operations. The ROE are dynamic documents; as Demarest (1995) explains, "a mission may require multiple ROE instructions to correspond with varying phases of a deployment, different geographic locations and even different levels of classification." Although the exact details are classified, the following are typical provisions for targeted killing operations: a specific day or specific time of day is designated (for example, if it is during school hours, children are presumed to be at school); a target may be struck only when 'x' number of civilians or fewer are present [this calculation depends on the 'value' and 'priority' of the target--see Weizman (2012, pages 12-14)]; a target may be hit only after warnings are given for civilians to evacuate. Target folders may be incomplete or might have out-of-date intelligence that requires updating before it can be given proper legal consideration. In such cases, the ILD would say "well, this isn't good enough; go back and get some more [intelligence]" (Benjamin, interview), which is fine if there is time to collect more intelligence. If not, different procedures apply, as we will see in the following section.
Rarely do military lawyers have to say a straightforward 'no' to a commander for a preplanned operation. This is partly because commanders are fully aware of the history of legal advice--what has been approved and what has not--and do not want to waste time and energy proposing targets that will likely be denied (Libman, interview). Occasionally this does happen: "they [the commanders] would sometimes try and get it through. But we'd [the lawyers] say no that's not good enough" (Benjamin, interview). There is also a sense in which military lawyers do not want to be the 'spanner in the works' once an operation is in the advanced planning stages, so lawyers try to avoid these situations by involving themselves in the planning process as early as possible. All commanders receive some training in IHL and there is little doubt that there has been a growing institutional acceptance of IHL in the Israeli military (Cohen, 2011; Guiora, interview). But accepting IHL is not the same as accepting the more restrictive principles of that legal regime.
Another explanation for why legal advisers rarely have to say 'no' could be that they have taken a generally permissive approach to targeted killing. Evidence of this lies in the wake of every targeted killing because military lawyers vet each and every name that is 'withdrawn' for 'prosecution' from the 'target bank'. This amounts to 352 'yeses'--the number of targeted killing strikes between November 2000 and July 2014--and we may never know how many 'nos'. Legal approval has been given even to the most seemingly lawless and grotesque targeted killings. On 22 July 2002 the IAF dropped a one-tonne bomb on the house of Saleh Shehade, the leader of Hamas's military wing. In addition to Shehadeh and his guard, thirteen civilians, including eight children, were killed and dozens more injured. Nearly a decade later, the Israeli Ministry of Foreign Affairs (IMFA) published its findings on the strike:
"a gap arose between what was expected and what actually occurred. The central reason for this gap was incomplete, unfocused and inconsistent intelligence information with regard to the presence of civilians in the structures adjacent to the Shehadeh house (the garage and huts), where most of the civilians died. This gap stemmed from incorrect assessments and mistaken judgment based on an intelligence failure" (IMFA, 2011, paragraph 12).
Yet the IMFA excused all those involved of any wrongdoing--including the military lawyers and Defense Minister who authorized the strike--because the disproportionate killing was "unintended, undesired and unforeseen" (IMFA, 2011, paragraph 10). Paradoxically, the strike was legalized precisely because proper procedures were not followed and because it resulted from an incompetent planning process as a result of which civilians could not be seen.
The role played by military lawyers in specific targeted killing operations such as the one that killed Saleh Shehade and his family later paved the way for their wholesale involvement in large-scale targeting decisions in major military campaigns. Arguably, it is in the planning stages of major military operations--rather than in specific targeted killing operations - that military lawyers have proved most potent in extending the scope of legislative violence. A brief survey of major targeting decisions will illustrate this point.
In 2002 the Israeli military laid the foundations for attacking civilian and government infrastructure. During 'Operation Defensive Shield' the IAF struck a variety of targets including the Ministry of Education, the Ministry of Civil Affairs, the Palestinian Legislative Council, the Central Bureau of Statistics, and the al-Bireh Municipal library (Montell, 2002). A MAGC legal memo (which remains classified) defined this civilian infrastructure as legally targetable. In Lebanon in 2006 the Israeli military demonstrated that the targeting of the civilian population and civilian infrastructure would henceforth become a policy. The logic in doing so was to bomb the civilian population into rejecting Hezbollah and in turn, deter Hezbollah fighters from taking up arms against Israel. Two years later--and promising future violence of this kind--the Commanding Officer of Northern Command, Major General Gadi Eisenkott, unveiled what became known as the 'Dahiya Doctrine':
"In the Second Lebanon War we used a great deal of bombs. How else were 120,000 houses destroyed? ... What happened in the Dahiya Quarter of Beirut in 2006, will happen in every village from which shots are fired on Israel. We will use disproportionate force against it and we will cause immense damage and destruction. From our point of view these are not civilian villages but military bases.... This is not a recommendation, this is the plan, and it has already been authorized" quoted in PCATI, 2009, page 20).
Just two months before the outbreak of 'Cast-Lead' the Institute for National Security Studies (INSS), a promilitary think tank at Tel Aviv University, published an article by a Colonel reservist who claimed that "this approach is applicable to the Gaza Strip as well" (quoted in PCATI, 2009, page 21).
The planning for 'Cast-Lead' began six months in advance and military lawyers were "intimately involved [in the] approval of targets" (Benjamin, interview). On the opening day of the assault--27 December 2009--the IAF bombed a police cadet graduation ceremony, killing forty-eight policemen. Three weeks later the Israeli military had killed a total of 248 civilian policemen who were not DPH. An investigation by the IMFA revealed that the MAGC had approved the targeting of policemen on the basis that the "police are part of the armed forces" of Hamas (IMFA, 2009, page 89). This gives a sense of the power of predefining targets through legal categories, and it is not difficult to see how a single legal opinion-the police now constitute a military target--sets in motion not one but several subsequent targeting decisions and deaths. Two weeks into the operation, Israeli military spokesman Captain Benjamin Rutland confirmed that the 'theory of the circles of involvement in terrorist organizations' had been expanded to include the third and possibly also the fourth circles that had once been considered illegal targets by the MAGC. He told the BBC:
"our definition is that anyone who is involved with terrorism within Hamas is a valid target. This ranges from strictly military institutions and includes the political institutions that provide the logistical funding and human resources for the terrorist arm" (quoted in Bisharat, 2013, page 77).
As documented by the Goldstone Report (2009, pages 199-217), the expansion of the definition of what constitutes a legal target led to mass destruction and death of persons and objects that should have been immune from attack, including: civilians attempting to evacuate their houses, whole families who were in no way DPH, homes and whole residential areas, food and energy production facilities, medical facilities and medical vehicles, UN buildings, and mosques. To justify each of these strikes the MAGC offered two legal innovations: first, it defined civilian infrastructure as 'dual use', meaning that when a given facility or building is also used for military purposes it loses its protected status, thus rendering it a "legitimate target" (IMFA, 2009, page 55). Second, and as documented by Weizman (2010; 2012), the Israeli military made extensive use of 'technologies of warning', which were used as a carte blanche to target civilian areas after they had received warnings to evacuate.
Despite Israel's refusal to accept the findings of the Goldstone Report there is some evidence to suggest that the legal onslaught faced by Israel following 'Cast-Lead' affected the conduct of the following operation in November 2012. A month after 'Pillar of Cloud' came to an end, the former IAF General and now director of the INSS, Amos Yadlin, confirmed, "the ghost of the Goldstone report was hovering in the rooms where the list of targets was approved" (Yadlin, 2012, page 93). Counter to the official Israeli narrative, a report issued by Israeli human rights organization B'Tselem (2013) "challenges the common perception in the Israeli public and media that the operation was 'surgical' and caused practically no fatalities among uninvolved Palestinian civilians." Furthermore, in a letter to The New York Times, Israeli military spokesperson Lieutenant Colonel Avital Liebovitch outlined the legal justification for striking media and communications facilities and killing Palestinian and foreign journalists:
"when terrorist organizations exploit reporters, either by posing as them or by hiding behind them, they are the immediate threat to freedom of the press. Such terrorists, who hold cameras and notebooks in their hands, are no different from their colleagues who fire rockets aimed at Israeli cities and cannot enjoy the rights and protection afforded to legitimate journalists" (quoted in Bisharat, 2013, page 77).
If any lessons were learnt from 'Cast-Lead' they were forgotten by the summer of 2014. Reports from human rights organizations suggest that the overly permissive approach adopted by legal advisers in 'Cast-Lead' was readopted and even extended in preparation for 'Protective Edge', giving rise to what Laleh Khalili (2014) has called a "habit of destruction". Medical facilities and medical workers were targeted (Gregory, 2014), as were UN shelters and schools, acts that were condemned by the White House as "totally unacceptable" and "totally indefensible" (Lewis and Black, 2014). In a letter to the MAG, B'Tselem suggested that legal and military directives had been given "to attack the homes of operatives in Hamas and other organizations as though they were legitimate military targets" (B'Tselem, 2014a, page 2). B'Tselem's investigations also found a "proliferation of incidents in which many civilians were killed in a single incident--more than in previous operations--in terms of both the number of casualties in each incident and the overall number of such instances." (B'Tselem, 2014a, page 3).
Although the MAGC has not yet published its legal rationale for 'Protective Edge' or explained why the Israeli military targeted civilians and particular civilian infrastructure, we do know that all preplanned targets were given legal approval in advance of the operation [and lawyers "were constantly present and available to commanders ... to provide ongoing operational legal advice" during the fighting (MAGC, 2012, page 5)]. Even the most lethal and large-scale violence has been through legal review--a fact that raises the question of whether military lawyers are mere fig leaves for late modern military violence. Before I attempt to answer that question, we must first attend to the role of the military lawyer in dynamic targeting operations.
Permission to kill
Dynamic targeting operations are different from preplanned operations in several ways. The most obvious difference is that the luxury of time is not available during dynamic targeting: decisions must be made quickly, often in seconds and minutes, not hours and days. There are two reasons for this, which give rise to two different types of dynamic targeting. The first type is where a strike is required to support troops who have come into contact with the enemy. This is called a 'troops in contact' (TIC)--see HRW (2008)--which in turn requires something called 'close air support' (CAS). The second, defined as a 'time-sensitive target', is a target that emerges during battle and whose elimination is necessary either because of its high value or because it poses--or will soon pose--a threat to friendly forces (Joint Chiefs of Staff, 2013). Dynamic targeting is marked by an intelligence picture that is nearly always more incomplete than preplanned targeting operations. This means that targets that would not normally receive legal approval in preplanned operations--for example, because they lack intelligence--are frequently given the green light when categorized as time-sensitive or TIC. This is because those in the operations room are less likely to ask questions when Israeli troops are in danger. Thus, calling in 'CAS' or designating something as a 'TST' provides an expedited means for the 'prosecution' of targets. The consequence of all this is that dynamic targeting commonly leads to a much greater number of civilian casualties than does preplanned targeting that is not time-sensitive (HRW, 2008, pages 3^1). This Contradicts the perception that all targets in late modern war receive careful legal review before they are eliminated.
The lawyers' role in dynamic targeting has changed over time. In the early 2000s their main role was to teach commanders about the laws of targeting in advance of battle so that commanders could apply that knowledge during fighting. This remains a strong component of the MAGC approach to dynamic operations (Libman, interview). Lawyers have given some form of live advice in major military operations since at least the 2006 Lebanon war. By 'Cast-Lead' in 2009 ILD lawyers were working around the clock. "You get always more targets ... I was barely at home", reported Pnina Sharvit-Baruch--head of the ILD at the time. But what had been an ad hoc approach to targeting advice in live targeting operations even up to and including 'Cast-Lead' became institutionalized following the publication of the Goldstone Report and the allegations that Israel had committed war crimes. In 2010 Gabi Ashkenazi, the Chief of Staff, issued an order requiring the military to consult with legal advisers while military operations are underway (Pfeffer, 2010). The first time this was effected was in 'Pillar of Cloud' in 2012:
"the MAG Corps activated a specially designed mechanism so as to ensure that legal officers were constantly present and available to commanders ... to provide ongoing operational legal advice. The legal advisors that accompanied these commanders provided legal advice on a wide range of issues--including target classification, the use of weaponry, the provision of advance warnings to civilian populations ..." (MAGC, 2012, page 5).
Since then, military lawyers have been on call or present to give legal advice in dynamic operations, though it should be noted that lawyers are not escorting soldiers in the field like they do in the US Army. At present, legal advice goes down only to the divisional level. Typically, live legal advice is sought under the following circumstances: if time permits, if the target poses a new legal question (that is, if a new class of target is being considered), if there is uncertainty about the military character of a target- especially if it is thought to be 'dual-use', and if striking the target could involve high 'collateral damage'. The main problem with providing live legal advice is the time constraints and the very real concern that legal advice could disrupt combat and potentially endanger (Israeli) lives. As former military lawyer Amos Guiora explained: "you have to facilitate decision making quickly.... you've been mandated with explaining the legal parameters to commanders who need to decide quickly."
The involvement of lawyers in live operations presents another, related problem for operational decision making. In 2008 a government-appointed investigatory committee published its findings into Israel's military shortcomings in the 2006 Lebanon war. The involvement of lawyers during operations worried the Winograd Commission:
"We fear that the extended reliance on legal advice during military operations might cause the transference of responsibility from elected officials and commanders to advisors, and might hinder both the quality of the decisions and the operational activity" (quoted in Cohen, 2011, page 268).
In short, there was a real worry that military lawyers were actually calling the shots, and that the military was delegating command responsibilities to legal professionals. I want to now provide a particularly salient example of a live targeted killing operation that speaks to the power that military lawyers have come to assume in live operations.
It is 2003 and a meeting is taking place inside the Kirya, the Israeli military headquarters in central Tel Aviv. A 'terrorist group' in Gaza has kidnapped a local individual that the military believes is one of their agents. The group is currently interrogating this man with 'extreme prejudice' inside a building in Gaza City. Those present at the meeting have intelligence suggesting that the group are planning to kill him in about twenty minutes. Assembled around the table are the senior military personnel who make up the 'targeted killing team'. But they have come up against an operational problem. The mathematical analysis of the missile shows that no matter how they fire, the next-door apartment will be 80% destroyed as a result of the explosion. Not knowing how to proceed they send an aide upstairs to request the assistance of the head of the ILD, Colonel Daniel Reisner.
Military lawyers are strictly not allowed to make decisions; the chain of command and IHL dictate that decision making is the sole responsibility of the commander ,but the 'targeted killing team' do not know what to do. They have no intelligence as to whether next door is inhabited or not. They think it lawful to kill the kidnappers--and even their own agent--but they are not sure whether they are also allowed to destroy the next-door apartment and kill or injure anybody that may be inside. The senior commander interrupts the conversation, points to Colonel Reisner, and asks,
" Has he approved yet?"
"Not yet", the others say, clearly also under the impression that the military lawyer has been called into the meeting to make the commander's decision for him.
"Hurry up!", exclaims the commander, "we don't have much time."
"So can we fire the missile?", the team ask the lawyer.
These questions demand 'yes'/'no' answers; they plead not for advice but for permission to kill. As much as military lawyers may refuse to provide such absolute legal cover, they are powerless as to how the commander may interpret legal 'advice'. After giving an impassioned speech in which Daniel Reisner reminds the targeted killing team that the lawyer is not responsible for making the final call, he goes on to provide the legal advice that the commander so urgently needed:
"... I don't think it's a war crime to attack the house. I'll tell you why not: because you have a military reason to attack, you've got the target, you don't have any indications of any civilians, you haven't seen any civilians in the house and the blinds are shut, there is no laundry, let's say 60% that the house is currently uninhabited and 40% that maybe there is someone there. But given the balance of things and the time here it doesn't look like a war crime even if you get it wrong." However, if it's a local orphanage then we are all in shit." The leading commander thanks the lawyer; as far as he is concerned, the green light has been given.
The question of who makes the formal final operational decision could not be more clear-cut: it is always the military commander. But as I have tried to show, operational practice is not one and the same thing as the written rules of IHL, and in the space of operational law it is much more difficult to identify where responsibility lies between the commander and the military lawyer. Another example should secure the point. One former legal adviser to IDF Southern Command told me that he once received a call from a commander at 3am asking him for permission to engage: "There is no doubt that if I would have said yes, the guy is dead. No doubt in my mind" (Guiora, interview).
As these examples suggest, military lawyers serve a different function in live operations than they do in preplanned operations. Whereas in preplanned operations the power of the military lawyer is located through the a priori classification of targets, in live operations their advice is more immediate. The lawyer's advice carries clarity amidst urgency: if the lawyer says 'yes' and if there are Israeli lives in danger, then the commander needs little other information to base his or her decision on. In either scenario, the lawyer has an almost therapeutic and exculpatory presence. If things go wrong, then the presence of a lawyer symbolizes reason and protocol; rational legal procedures were followed, even if innocent people were killed. The former is nearly always enough to exculpate the latter, as the case of Saleh Shehade so painfully demonstrates. I am adding my own gloss here, but this is not much different from the way that the Israeli military and government think about the role of law and lawyers in protecting Israeli lives, whether they be civilian or soldier. In the days following the mass destruction of operation 'Protective Edge', the former Minister of Foreign Affairs and now Minister of Justice, Tzipi Livni, wrote on her Facebook page that Israel had, "acted divisively, using our understanding of the law to its full extent, so that IDF soldiers would be able to protect Israeli citizens while being furnished with a legal flak jacket and with a legal Iron Dome over their heads." (3) If there were a metaphor for the role played by military lawyers, perhaps this is it. Just as the ballistics expert carefully weaves Kevlar into a vest that will protect its wearer, Israeli military lawyers weave a double thread of laws to create 'jackets' that will both shield Israelis from accusations of illegality and furnish them with the necessary protection and means to injure, destroy, and kill the enemy.
Toward a legal pluralism of war
For Weizman (2010; 2012) IHL is a legal regime with 'elastic limits' and 'grey zones'. These ambiguities provide space for an ever-expanding remit of violence. Part of the problem, according to Weizman, is that IHL never clearly defines key legal concepts; it leaves individual states to interpret what constitutes 'military advantage', 'proportionality' and 'necessity' and militaries weigh these lofty and abstract terms on their own scales. Seen thus, IHL is no deus ex machina and neither is it the universal and benign legal regime that so many humanitarians like to think it is.
According to some of Israel's most experienced military lawyers, it was precisely because of the difficulties posed by the ambiguous language of international law that military lawyers first became involved in the provision of operational legal advice, and that operational law has become so important in the Israeli military over the last decade and a half. If Israeli commanders--indeed, the commanders of any military or paramilitary force--are obliged to comply with IHL and for the sake of legitimacy are also required to be seen to be conforming to it, they need to know not only what the law is but crucially also how to implement it. Commanders tend not to think in terms of international law, partly because--as Weizman points out--its principles are so ambiguous. Ambiguous legal categories are one thing to debate in a classroom setting, but quite another to implement during the heat of battle, which is why commanders now demand well-defined ROE and require ever more operational legal advice. In terms of understanding the practical edge of how law has come to matter to the 'prosecution' of late modern war, the question of how law is 'operationalised' is therefore paramount.
ROE and operational law represent a 'checklist approach' to law, a single recipe sheet of 'dos' and 'don'ts'. Whether for targeted killing, time-sensitive, or preplanned targeting operations, legal advice must be structured in such a way that it provides concrete and immediate answers to age-old legal and philosophical questions about the sovereign right to kill. This presents the military lawyer with a very difficult challenge, as he or she effectively has to reduce whole corpuses of law to a couple of sentences (or seconds). As one lawyer confided:
"The biggest challenge for lawyers in the military is to take this huge body of international law which is really complicated and very grey and very obfuscated, and basically reduce it to a one-liner or a paragraph which gives the military commander the right kind of tools to make the right kind of decision ... Our clients need to get something distilled" (Benjamin, interview).
While it is through the elastic limits of international law that the prohibited potentially becomes permissible (Weizman, 2012), operational law requires and thrives on something quite different. The raison d'etre of operational law is to specify that which cannot be articulated by international law. Operational law transforms international law from the abstract and general to the specifics of what is militarily 'necessary'. The move from international law to operational law is not a neutral or purely technical exercise of rescaling, but rather is a transformation in the form and content of law itself. Therefore, it is important to note that operational law and international law are not the same thing, although, operational law is partly informed by international law and both can apply in the same space at the same time. 1 will discuss the last part of that sentence below but must first underscore a point about the militarist content of operational law.
According to the US military lawyer who first defined and popularized the modern usage of the term, operational law is the "Domestic and international law associated with the planning and execution of military operations in peacetime or hostilities" (Graham, 1987, page 10). With slight modification, Graham's definition is still used by the US military, but, since he first penned these thoughts, operational law has become a mainstay of military doctrine not only in Israel but also and especially in the US, UK, Canada and Australia. Com and Com (2011, pages 344-345)-who are both former US military lawyers--identify what seems to be a crucial characteristic of operational law. It is a balance between law and military operations: '"operationalizing the law necessitates an understanding of the relationship between the law and the principles of military operations that the law regulates." Military lawyers must now develop expertise in areas such as intelligence and weaponeering so that they may provide the most relevant and informed legal advice. As Amos Guiora puts it, the military lawyer must "demonstrate that he knows the commanders' needs and pressures" (Guiora, interview). But what these military lawyers fail to explain is that the Taw' part of operational law is not only derived from domestic and international law, and military considerations; political-strategic interests also inform it. Operational law is shot through with the political and, as Michael Smith (2014, page 152) has cogently argued,
"Operational legality is fundamentally shaped by strategic considerations; in other words, the mission objectives dictate to a substantial degree what is authorized. Seen in this light, like war itself, OPLAW [operational law] is politics continued by other means, and the geopolitics of this martial legality are never far from the surface."
My claim here is not that the move from international to operational law represents a bloodying or militarization of international law. International law was forged in the blood of the colonial encounter and has been policed by military violence ever since. Perhaps the clearest example of this in IHL is that its prohibition on the killing of civilians is not absolute but must be weighed against 'military necessity'--that is, a military is fully permitted to kill innocent people so long as their death is either unforeseen or considered 'proportional' to the 'military advantage' gained. Operational law provides militaries with a vast discursive and practical apparatus to interpret, apply, and effectively remake international and domestic law in and through the sites, sights, and spaces of war. Operational legality too is forged in the theater of blood and war; it is informed by reports from soldiers and commanders on the front lines and is remade when the ROE appear too restrictive or too cumbersome to achieve 'military success'. Operational law therefore represents the tip of the international law spear, a space far away from the sites and institutes commonly associated with the treaty making of international law--the UN, ICC, or the International Committee of the Red Cross--but nonetheless working on the same project of defining and rewriting the power and purpose of law in war, albeit from a radically different direction.
In their important book Spatializing Law von Benda-Beckmann et al (2009, page 4) point out that "most work in the geography of law and in legal studies has mainly focused on law and space in the context of state law in industrialized states in Europe and America, with an urban bias." Drawing on a rich legal anthropology literature, von Benda-Beckmann and von Benda-Beckmann (2014) have turned to the concept of legal pluralism to seek a corrective to this long-standing metropole/metropolitan bias in sociolegal work. In a recent essay they define legal pluralism as "a sensitizing concept that draws attention to the possibility that law of various kinds, with different foundations of legitimacy, validity, power, and authority, and with different degrees of institutionalization and formalization, can coexist within the same social space, often at different scales" (2014, page 34). Legal pluralism thus makes room for analyzing the ways in which space is constituted through multiple legal regimes. More recently, those working with the concept of legal pluralism have sought to emphasize the sense in which legal regimes are also structured by time. Legal regimes 'come and go' (von Benda-Beckmann and von Benda-Beckmann, 2014; Smith, 2014), are replaced, layered, and reshuffled in what Valverde (2009, page 139) calls the 'game of jurisdiction'.
Just as spaces of war are plural and ever changing, so too is war defined by and 'prosecuted' through plural legal regimes. In focusing our attention on the spaces of operational law and on the role of the lawyer in targeting operations my argument is not that operational law is somehow more important or analytically more useful than the international scales of law examined by Weizman. I am in no way advocating a turn away from international law toward operational law, nor do I think that cherry picking different bodies and scales of law is a useful way ahead. I hope my analysis has shown that it would be more useful to conceive of war as having multiple legal regimes and rules in play in any one space at any one time. These regimes are made up of much more than 'international', 'domestic', and 'operational' law; they are given life through the specific protocols, interpretations, and intersections of all of those legal regimes. War in general, and targeting in particular, are governed by various international legal regimes and domestic interpretations of those regimes, but they also take shape through a series of 'legal technicalities' (Valverde, 2009). These 'technicalities' may include (sometimes secret) legal memos, ROE that change in space and time, an overdue court ruling, an out-of-date military directive, the fluid 'commands' of the commander, or the contextual legal advice of the military lawyer. Only by paying attention to the overlap between these legal regimes, rules, and technicalities can we make sense of the juridification of targeted killing and the 'prosecution' of ever more targets in late modern war.
What I also hope to have shown is that, for better or worse, military lawyers have become central figures in the war-law-space nexus. The legal treaties and customs that they bring to bear, and the abstract principles that they 'distill' into concrete actionable advice, have no doubt transformed the kind of questions which are being asked in targeting operations. The process of legal distillation, however, is not so much one of purification as one of concentration: it concentrates and directs military power through a language of law so that even lethal violence appears, in both form and norm, as the product of a carefully considered legal praxis. But adjudication is not distanced, disinterested, and objective. Military lawyers are part of a military staff; they are 'soldiers first, lawyers always', as their motto goes (Guiora, interview). First and foremost they serve the Israeli military and state. (Operational) law is therefore not above fray of military violence, but is proactively involved in shaping, directing, and also, crucially, legitimizing it.
Frames of law, spaces of war
There is an intimate, if not a priori or constant, connection between law and legitimacy, and part of what distinguishes the contemporary era of later modern war is the hypersensitivity and reflexivity displayed by advanced militaries to the ways in which their actions are perceived. Advanced militaries are obsessed with being seen to be doing the right thing; or, to put it in Foucauldian terms, they are obsessed with the 'conduct of their conduct'. Law has become a key medium through which war is packaged and made palatable for publics, for, as Kennedy (2006, page 122) reminds us,
"Communicating the war is fighting the war, and law--legal categorization--is a communication tool. Defining the battlefield is not only a matter of deployed force, or privileging killing; it is also a rhetorical claim."
I think this connection between law and perception is precisely what David Benjamin had in mind when explained to me, "it's not whether you're doing the right thing ... but we have to make sure that the world understands that we're doing the right thing" (Benjamin, interview). When war is represented as legal, and when a vast legal armature is put into place to secure such representation, we witness the reality of war and its all-too-bloodied materialities as conforming to, reflecting, and indeed producing a world made simple by law. The good war is the legal war; the legitimate target is one that has been 'prosecuted'.
When, in her Frames of War, Judith Butler (2009, page 7) observed that "there is no life and no death without a relation to some frame", she was referring to the ways in which our apprehensions of 'grievable life' are politically saturated. Indeed, she insists that the "frames through which we apprehend or, indeed, fail to apprehend the lives of others as lost or injured ... are themselves operations of power" (2009, page 1). Butler has several frames in mind here: "the frame of the photograph, the framing of the decision to go to war, the framing of immigration issues as a 'war at home,' and the framing of sexual and feminist politics in the service of the war effort" (page 26), but none explicitly fasten on the legal frames that now loom so large in our apprehensions of war. In considering the 'lawyering up' of the kill chain and the embedding of legal advisers in lethal targeting operations, it strikes me that, at least in part, frames of war are becoming frames of law. The move is performative and narrows the space between law and legitimacy. Legal frames wielded by advanced militaries legitimize and secure dominant frames of war. In order to understand the work performed by these legal frames, we must look to the plural and overlapping legal spaces where they are formed, practiced, and unleashed. The last of these spaces is particularly important. What would it mean, for example, to think through the juridification of war from the point of view of the targeted, of those still caught in the crosshairs of a putatively 'better' kind of war?
The answers to this question have significance far beyond Palestine and Israel. Israel may have been the first state to unleash a publicly defended targeted killing policy, but it has not been the last. When the IAF targeted and killed Hussein Abiyat in November 2000 the US, EU, and UK cautioned against the use of "extrajudicial killing", and noted that "assassination" is "unlawful, unjustified and self-defeating" (quoted in Jones, forthcoming). But criticism soon turned to praise and in particular the US looked to the Israeli 'model' as inspiration for the animation of its own nascent targeted killing policy, which has since transmogrified into what Gregory (201 la) has called an 'everywhere war'. One Israeli lawyer told me that the US "is very much on the same page as Israel" when it comes to targeted killing, and another received delegations from Washington DC who had come to Tel Aviv shortly after 9/11 to "learn how we [the Israeli military] did it". Yet some of the very lawyers who imputed this lethal juridical knowledge are concerned about the Frankenstein they created. One told me that he does not like "the fact that they [the Americans] still haven't come up with a unified theory of legitimacy for targeted killing, [it] shows that they are ... that they fucked up." The law--and practice--of targeted killing travels, and legal advice has become de rigueur even as watertight legal justification (to say nothing of public legitimacy) has been somewhat more elusive. To look back at the Israeli invention of 'legalized' targeted killing is instructive; today we are witnessing its intensification and expansion by the US, and by those states that have joined the fight against the Islamic State.
Frames can be called into question, of course, and my aim here has been to show that the legal frames of targeting are necessarily partial and reduce an already highly abstract process--the kill chain--into a further ossified practice: the juridification of the kill chain. The space of the 'legal target' though, never quite captures "the scene it was meant to limn", and in closing here I hope to have shown that there is something about these legal frames that, to borrow from Butler one last time, "troubles our sense of reality; in other words, something occurs that does not conform to our established understanding of things" (2009, page 9).
That something, I think, is the judicialization of the kill chain and the production of a legal discourse that does not seek to extend the protections of the law to the most vulnerable, but rather exposes them to the violence of operational and international law.
Acknowledgments. I would like to thank the military lawyers who participated in this research. I'd also like to thank Irit Malka for housing me and for all of her help and support during my time in Israel. Stephen Graham, Derek Gregory, Jim Glassman, Darryl Li and John Morrissey provided comments on a previous draft of this paper, for which I am very grateful.
Funding. This research was supported by a Four Year Fellowship from the University of British Columbia, Vancouver.
Alon, G, 2001, "Mofaz: IDF jurist approves killings" Haaretz 11 January
Alon G, Harel A, 2002, "IDF lawyers set 'conditions' for assassination policy" Haaretz http://www.haaretz.com/print-edition/news/idf-lawyers-set-conditions-for-assassination-policy-1.53911
Alston P, 2010, "Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions: study on targeted killings", Office of the United Nations High Commissioner for Human Rights, Geneva, http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf
Amos G, 2013, "Interview with author", On file with author Ben-Naftali et al, 2009
Ben-Naftali O, Gross A, Michaeli K, 2009, "The illegality of the occupation regime: the fabric of law in Occupied Palestinian Territory", in The Power of Inclusive Exclusion: Anatomy of Israeli Rule in the Occupied Palestinian Territories Eds A Ophir, M Givoni, S Hanafi (Zone Books, New York) pp 31-88
Bisharat G E, 2013, "Violence's Law" Journal of Palestine Studies 42 68-84
B'Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, Jerusalem 2002, "Operation Defensive Shield", Jerusalem, http://www.btselem.org/download/200207_defensive_shield_eng.pdf 2013, "Harm to civilians significantly higher in second half of Operation Pillar of Defense", http://www.btselem.org/press_releases/20130509_pillar_of_defense_report 2014a, "Statistics", http://www.btselem.org/statistics 2014b, "Investigation of incidents that took place during recent military action in Gaza: July-August 2014", http://www.btselem.org/download/201400904_15390_letter_to_mag_corps_regarding_protective_ edge_investigations_eng.pdf
Butler J, 2009 Frames of War: When is Life Grievable? (Verso, London)
Cohen A, 2011, "Legal operational advice in the Israeli Defense Forces: The International Law Department and the changing nature of international humanitarian law" Connecticut Journal of International Law 26 367-413
Corn G S, Com G P, 2011, "The law of operational targeting: viewing the LOAC through an operational lens" Texas International Law Journal 47 337-380
Delaney D, 2010 The Spatial, the Legal and the Pragmatics of World-making: Nomospheric Investigations (Taylor and Francis, Abingdon, Oxon)
Delaney D, 2009, "What is law (good) for? Tactical maneuvers of the legal war at home" Law, Culture and the Humanities 5(3) 337-352
Demerest G, 1995, "The strategic implications of operational law", US Army, Foreign Military Studies Office, http://fmso.leavenworth.army.mil/documents/oplaw.htm
Dunlap C, 2001, "Law and military interventions: preserving humanitarian values in 21st century conflicts", paper presented at the Humanitarian Challenges in Military Intervention Conference, Washington, DC, 29 November, http://www.duke.edu/~pfeaver/dunlap.pdf
Eastwood J, unpublished, "Keeping a human image: ethical pedagogy in the IDF", copy available from author
Gordon N, 2014, "Human rights as a security threat: lawfare and the campaign against human rights NGOs" Law and Society Review 48 311-344
Graham D, 1987, "Operational law: a concept comes of age" Army Law 175 9-12
Gregory D, 2004 The Colonial Present: Afghanistan, Palestine, Iraq (Blackwell, Malden, MA)
Gregory D, 2006, "The black flag: Guantanamo Bay and the space of exception" Geografiska Annale B 88 405-427
Gregory D, 2011a, "The everywhere war" The Geographical Journal 177 238-250
Gregory D, 2011b, "From a view to a kill drones and late modern war" Theory, Culture and Society 28(7-8) 188-215
Gregory D, 2014, "Destructive edge" Geographical Imaginations: War, Space and Security 8 August, http://geographicalimaginations.com/2014/08/08/destructive-edge/
Gross A M, 2006, "The construction of a wall between the Hague and Jerusalem: the enforcement and limits of humanitarian law and the structure of occupation" Leiden Journal of International Law 19 393-440
Gunneflo M, 2014 The Life and Times of Targeted Killing PhD thesis, Law Department, Lund University, http://lup.lub.lu.se/record/4316693
Hajjar L, 2005 Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (University of California Press, Berkeley, CA)
HRW, 2008, '"Troops in contact': airstrikes and civilian deaths in Afghanistan", http://www.hrw.org/sites/default/flles/reports/afghanistan0908webwcover_0.pdf
ICRC, 2008, "Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law", International Committee of the Red Cross, Geneva
IMFA, Israeli Ministry of Foreign Affairs, Jerusalem 2000, "Press briefing by Colonel Daniel Reisner", http://www.mfa.gov.iI/MFA/MFAArchive/2000_2009/2000/11/Press+Briefing+by+Colonel+Daniel+ Reisner-+Flead+of.htm?DisplayMode=print 2009, "The operation in Gaza: factual and legal aspects", http://www.mfa.gov.il, http://www.mfa.gov.il/MFA/ForeignPolicy/Terrorism/Pages/Operation_in_ Gaza-Factual_and_Legal_Aspects.aspx 2011, "Salah Shehadeh: special investigatory commission", http://www.mfa.gov.il/MFA/Government/Law/Legal+lssues+and+Rulings/Salah_Shehadeh- Special_Investigatory_Commission_27-Feb-2011
Israeli Supreme Court, 2006, "Public Committee Against Torture in Israel v. Government of Israel"
Johns F, 2013 Non-legality in international law: unruly law (Cambridge University Press, Cambridge)
Joint Chiefs of Staff, 2013, "Joint targeting", Council on Foreign Relations, Washington DC, cfr.org/.../Joint_Chiefs_of_Staff-Joint_Targeting_31_January_2013.pdf
Jones C, 2015, "Lawfare and the juridification of late modern war" Progress in Human Geography, Published online before print March 16, 2015, http://phg.sagepub.com/content/ early/2015/03/09/0309132515572270.full.pdf
Jones C, forthcoming, "Travelling law: targeted killing, lawfare and the deconstruction of the battlefield", in American Studies Between the American Century and the Arab Spring (University of North Carolina Press, Chapel Hill, NC)
Kasher A, Yadlin A, 2005, "Military ethics of fighting terror: an Israeli perspective" Journal of Military Ethics 4 3-32
Kennedy D, 2006 Of War and Law (Princeton University Press, Princeton, NJ)
Khalili L, 2014, "A habit of destruction" Society and Space, http://socletyandspace.com/2014/08/25/laleh-khallll-a-habit-of-destruction/
Kinsella H, 2011 The Image Before the Weapon: A Critical History of the Distinction Between Combatant and Civilian (Cornell University Press, Ithaca, NY)
Koh H, 2010, "The Obama administration and international law", http://www.state.gov/s/i/releases/remarks/139119.htm
Kretzmer D, 2002 The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (State University of New York Press, Albany, NY)
Lewis P, Black I, 2014, "Gaza conflict: US says Israeli attack on UN school was 'totally unacceptable'" The Guardian, http://www.theguardian.com/world/2014/jul/31/gaza-conflict-us-Israeli-attack-un-school
Libman, Liron, 2013, "Interview with author", On file with author
Margalit A, Walzer M, 2009, "Israel: civilians and combatants" The New York Review of Books, http://www.nybooks.com/articles/archives/2009/may/14/israei-civilians-combatants/
MAGC, Military Advocate General Corps, Tel Aviv 2012, "Operation 'Pillar of Defense'", http://www.law.idf.iI/sip_storage/FILES/0/1350.pdf no date a, "The MAG Corps--History", http://www.law.idf.il/320-en/Patzar.aspx no date b, "The MAG Corps--Mission", http://www.law.ldf.il/320-en/Patzar.aspx
Mandelblit, Avichai, 2013, "Interview with author", On file with author
Montell J, 2002, "Operation Defensive Shield" Tikkun 17(4) 33-41
PCATI, 2009, "No second thoughts: the changes in the Israeli defense forces' combat doctrine in Light of 'Operation Cast Lead'", Public Committee Against Torture in Israel, Jerusalem, http:// www.stoptorture.org.il/files/no%20second%20thoughts_ENG_WEB.pdf.
Pfeifer A, 2010, "IDF to seek legal advice during future conflicts" Haaretz, http://www.haaretz.com/print-edition/news/idf-to-seek-legal-advice-during-future-conflicts-1.265596
Reisner, Daniel, 2013, "Interview with author", On file with author
Sapsted D, 2009, "Hundreds of war crimes lawsuits filed against Israelis" The National, http://www.thenational.ae/news/world/middle-east/hundreds-of-war-crimes-lawsuits-filedagainst-israelis
Schmitt M, 2012, "Forward", in The Law of Targeting Ed. W H Boothby (Oxford University Press, Oxford) pp vii-ix.
Sharvit-Baruch, Pnina, 2013, "Interview with author", On file with author
Smith M, 2014, "States that come and go: mapping the geolegalities of the Afghanistan intervention", in The Expanding Spaces of Law: A Timely Legal Geography Eds I Braverman, N Blomley, D Delaney, A Kedar (Stanford Law Books, Stanford, CA) pp 142-166
UN, 2009, "United Nations fact finding mission on the Gaza conflict", United Nations General Assembly, http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf
UNOCHA, 2014, "Gaza crisis", United Nations Office for the Coordination of Humanitarian Affairs, Jerusalem, http://www.ochaopt.org/content.aspx?id=1010361
Valverde M, 2009, "Jurisdiction and scale: legal 'technicalities' as resources for theory" Social and Legal Studies 18 139-157
von Benda-Beckmann F, von Benda-Beckmann K, 2014, "Places that come and go: a legal anthropological perspective on the temporalities of space in plural legal orders", in The Expanding Spaces of Law: A Timely Legal Geography Eds I Braverman, N Blomley, D Delaney, A Kedar (Stanford Law Books, Stanford, CA) pp 30-52
von Benda-Beckmann F V, von Benda-Beckmann K, Griffiths AMO, 2009 Spatializing Law: An Anthropological Geography of Law in Society (Ashgate, Farnham, Surrey)
Weizman E, 2010, "Legislative attack" Theory, Culture and Society 27(6) 11-32
Weizman E, 2012 The Least of All Possible Evils: Humanitarian Violence from Arendt to Gaza (Verso, London)
Witman N, 2013, "State of the art technology helps minimize harm to civilians", Israel Defense Force, http://www.idf.il/1283-18247-en/Dover.aspx
Yadlin A, 2012, "In the aftermath of Operation Pillar of Defense: conclusion", Institute for Security Studies, Tel Aviv
Yiftachel O, 2006 Ethnocracy: Land and Identity Politics in Israel/Palestine (University of Pennsylvania Press, Philadelphia, PA)
Zehfuss, M, 2011, "Targeting: precision and the production of ethics" European Journal of International Relations 17 543-566
(1) All names of interviewees are real and are used with their permission.
(2) Assassinations were by no means new for Israel at this time. Political assassinations by paramilitary Jewish groups were carried out during the British mandate period (1939-47) and continued within the structure of the Israeli state after 1948 until 1999 (Gunneflo, 2014).
(3) This message appeared in Hebrew on Livni's Facebook wall on 10 September 2014. Translation provided by Sol Salbe in personal correspondence.
Craig A. Jones
Department of Geography, University of British Columbia, Vancouver, BC V6T 1Z2, Canada; e-mail: email@example.com
Received 11 March 2014; in revised form 14 November 2014
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|Author:||Jones, Craig A.|
|Publication:||Environment and Planning D: Society and Space|
|Date:||Aug 1, 2015|
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