Legislative attack

China Miéville has again pointed me towards an interesting article that I think is well worth flagging up. The whole article is worth reading in full, but I thought I’d quote some interesting stuff from it:

Military experts in law describe attempts to limit the death of bystanders as a pragmatic compromise that seeks to establish the supposedly "correct" relation between a necessary attack on militant targets and the number of civilians killed. The question is what is necessary, what ratio is correct, who is to decide that and who is to judge that. Although the claim that having laws of war is a good thing can still be accepted, it is necessary to be alert to the structural paradox they pose: for when they prohibit some things, they authorise others, and it is the border between the allowed and the forbidden that is the most intense legal battlefield.

International law can be thought of not as a static body of rules but rather as an endless series of conflicts over this border. The question is not which interpretation is right, but who has the power to force their interpretation into becoming authoritative. In this sense, international law does not merely legitimate violence but actually relies on it.

What is think is quite interesting is the notion that the law of war ‘authorises’ some things. I feel like there could be something very interested in this way, particularly when we look at how the idea of the ‘civilian’ is constructed through international legal regimes. Equally, the way in which international law ascribes ‘value’ to civilian life – by counterposing it to some other objective – is interesting. This is worrisome precisely because of the indeterminacy of the law; if the construction of the ‘civilian’ (and his ‘worth’) is always a legal act, it will always be one which is capable of challenge and as such subject to change. In this way, things we might think of as ordinarily civilian can be rendered the legitimate object of intervention. Although Weizman doesn’t have the legal issues exactly right, I think the argument as regards ‘warnings’ is quite productive:

The ability to communicate a warning during a battle is technologically complicated. Battle-spaces are messy, violent and confusing environments. Communicating a "warning" can save a life; but it can also in principle have the advantage of rendering "legitimate" targets whose destruction would have been otherwise in contravention of the law. There can thus be a direct relationship between the proliferation of warning and the proliferation of destruction.

The way that law interpellates individuals on the battlefield could clearly be a very interesting area for further examination. Indeed, I think the general tenor of this fits quite nicely with Pashukanis' attention to subject-formation. The impact of legal categories on media and political language would also be interesting to look at here, particularly the relationship between interpellation and responsibility (e.g. civilians in Gaza are interpellated as potentially legitimate targets by virtue of the particular organisation of Hamas and concomitantly with this - using some of the arguments in the Geneva Convention - responsibility for these deaths is shifted onto Hamas, who are using civilians as 'human shields' etc.).

The Gaza stuff is very telling , and in general the way that international law interpellates all of a subject people as enemies really could be explored further. It would be very useful to map out the practical result of legal language in this area - e.g. when Hamas attacks using its 'indiscriminate' weaponry any non-military personnel killed merit condemnation; when Israel attacks with its 'precision' weaponry, into an area where they are unsure of the exact difference between civilian and Hamas personnel people are interpellated as collateral damage.

Ultimately though, Weizman’s conclusion is a familiar one:

The logic of this realisation may be the need for those concerned with the interests and rights of people affected by war to employ a double, even paradoxical strategy: one that uses international humanitarian law, while highlighting the dangers implied in it and challenging its truth claims and thus also the basis of its authority. In any event, international law should not be the only language of protest and resistance to Israeli violence. The attack on Gaza should be opposed not because it is "illegal", but because it serves the logic of Israeli control of Palestinians.

This I think is right. But we shouldn’t necessarily sacrifice international law’s use as a weapon. Whilst I agree we shouldn’t use IL as our only – or frankly main – language of protest (although not just for reasons of indeterminacy, just because something is contestable doesn’t mean it’s unusable, this is also to do with the particular character of legal argument and its structural affinity for imperial assertions) we obviously can’t abandon international law. So even as we admit international law’s complicity in imperial processes we need to find a way – in certain for a – of forwarding an interpretation that favours the interests of ‘our’ people.