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.

Duncan Kennedy on Gaza

Sorry, no substantive content once again (some small stuff is coming, but I've been caught up in doing a few other things too), but just wanted to flag up CLS supremo Duncan Kennedy's take on the Israel assault on Gaza (which I was sent via Akbar Rasulov), much of it is the standard - but necessary - analysis of the historical context. But there are some very interesting passages to quote:

Numerous observers have charged Israel with committing war crimes during the war. Without downplaying that aspect, I think it is important to understand the 1,300 Palestinian casualties, including 400 children as well as many, many women, versus 13 Israeli casualties, as typical of a particular kind of “police action” that Western colonial powers and Western “ethno-cratic settler regimes” like ours in the U.S., Canada, Australia, Serbia and particularly apartheid South Africa, have historically undertaken to convince resisting native populations that unless they stop resisting they will suffer unbearable death and deprivation. Not just in 1947 and 1948, but also in Lebanon in 1982 and 2006, Israel used similar tactics.

Causing horrific civilian deaths is often perfectly defensible under the laws of war, which favor conventional over unconventional forces in asymmetric warfare. The outright “crimes,” like the My Lai massacre, Abu Ghraib, or Russian massacres in Afghanistan and then in Chechnya, are less important for the civilian victims than the daily tactics of air assault, bombardment, and brutal door-to-door sweeps, meant to draw fire from the resisters that will justify leveling houses and the people in them.

It's very important to understand that much of what Israel does is motivated by the classic colonial problematic - 'what the hell do we do with the natives!' (but with some very modern twists). Indeed this really has to be emphasised more, because it helps frame the actions structurally, and is frankly more convincing than reducing everything to individual 'electoral moves'.

I think the second paragraph is absolutely right - and something that the left really has to emphasise. Although there may well have been Israeli war crimes, the greatest 'crime' of all - this particular assault and the attendant loss of life, but also Israel's long history of oppressing the Palestinians - is effaced by the highly specific focus on certain actions and events (I know I keep banging on about this). Indeed, without even going back to the wider context, the initial assault - and the massacres it occasioned - can quite plausibly be argued to be legal.

[As an aside - there was some recent news about Barak threatening a "disproportionate" response in Gaza, but this is silly. As I've often said, we have to ask 'proportionate in relation to what?' whenever we talk about proportionality. In the case of Gaza, the assault need be proportionate to the number of lives lost. Instead things get much more nebulous - especially because a lot of the war on terror legal argument - because what is the 'proportionate' response to a continuing threat? Bear in mind that lots of legal commentators accept the initial invasion of Afghanistan as a legitimate example of self-defence as against the continuing threat of terrorism, in other words, the proportionate response to a continuing threat was the invasion of a country and the overthrow of its government (transformative self-defence); applying that logic to the Gaza situation, it may be quite difficult to think what exactly a disproportionate response would look like].

As Kennedy notes, the law also embeds a certain model of warfare (again I talk about this a lot but I think it's important; if any of you have the time read this, although I'm not always enamoured with postcolonial stuff, this particular essay is fairly awesome) , which tends to support technologically advanced, centralised militaries as against more diffuse forms of combat (this maps perfectly onto the 'two-track' system of international criminal justice Zolo talks about) - viz. the rules are rules of imperial war. So, we might want to talk about war criminals - I'm uncertain about this and I think it brings its own problems - but we certainly need to criticise the law too, because it's hugely deficient.

Our goal is not to tie down the army, but to give it the tools to win in a way that is legal

Really interesting article I got sent via China Miéville on the international law division of the IDF, I will comment properly on this at some point, because it strikes me as something that could be theoretically rather useful:

The idea to bombard the closing ceremony of the Gaza police course was internally criticized in the Israel Defense Forces months before the attack. A military source involved in the planning of the attack, in which dozens of Hamas policemen were killed, says that while military intelligence officers were sure the operation should be carried out and pressed for its approval, the IDF's international law division and the military advocate general were undecided.

After months of the operational elements pushing for the attack's approval, the international law division headed by Col. Pnina Sharvit-Baruch gave the go-ahead. In spite of doubts, and also under pressure, Sharvit-Baruch and the division also legitimized the attack on Hamas government buildings and the relaxing of the rules of engagement, resulting in numerous Palestinian casualties. In the division it is also believed that the killing of civilians in a house whose residents the IDF has warned might be considered legally justified, although the IDF does not actually target civilians in this way

Edit: again from China, the plot thickens:

Prime Minister Ehud Olmert came to the defense of Col. Pnina Sharvit-Baruch on Sunday, speaking out against those seeking to prevent her from taking up a teaching position at Tel Aviv University when she finishes her IDF career in the coming weeks.

More on Gaza

Sorry I haven’t posted in a while. I’ve actually been meaning to write something like this post but I’ve had stuff on. Recently, criticism of Israel’s Gaza offensive, and in particular legal criticism of these actions, has grown pretty intense. One early – and very interesting example – was this letter to the Guardian, which is signed by some very good people, a fair few of them being critical legal people too. The general structure of this letter – a legalistic argument, invoking academic authority and a mixture of critical and mainstream academics – makes it very similar to a previous this intervention against the Iraq war. As such, the same considerations expressed in this very incisive critical reflection on the problems of such an approach resurface. One of the limitations I found with this piece was what struck me as a ‘liberal’ approach which, rather than naming any of the parties involved in the action, equally condemned both sides and elided completely the historical and material context of the assault, merely noting a series of laws which (by implication) have been violated. In this respect I think this letter in the Guardian was much better and I think that it is quite telling that it is fairly obviously not a lawyers’ statement. However, I’ll return to this point a bit later.

Aside from the above-mentioned letter there has been a raft of articles, opinion pieces etc. arguing that Israel has committed war crimes. Now, as was clear from my other postings in this area, I am unconvinced that even the substance of legal argument here can be marshalled into a particularly progressive direction. My basic argument in this respect is that the law is at best indeterminate and, more than this, seems very unlikely to be able to actually limit the behaviour of imperialist states. But, as Susan Marks has noted (2000: 144):

[I]ndeterminacy is at one level international law’s weakness, at another its greatest strength. It is precisely because principles are contradictory that we are able to find in them counter-systemic logics. It is precisely because norms are unstable that we can lead them to ‘surpass themselves’.

Perhaps, then, what we are seeing is indeterminate legal argument being driven by a powerful popular movement and used to condemn Israel’s actions. However, I would argue that even if this is the case, there are still some big formal and substantive limitations to this practice, which may point to the inefficacy of using law in such a way.

So I think the first important point to note is a procedural/jurisdictional one. This is very well summarised by LWC. Basically, if we want the language of war crimes to have any critical bite, it seems necessary that we have some kind of forum which can definitively say that the events which took place amounted to war crimes and pass on some kind of punishment – viz. a court or tribunal. But, as LWC notes the procedural bars to this seem pretty difficult. The first complicating fact (which will resurface continually in the technical-legal debate) is that there is no ‘state’ of Palestine. There are a Palestinian people, who have a right to self-determination, but the land they occupy is a legal anomaly. Secondly, the ICC is out, aside from the state problem identified above, Israel is not a signatory to the ICC Statute. The next option is some kind of Security Council action – this could involve assigning the situation to the ICC or using a resolution to establish a separate tribunal. What with the United States remaining a permanent Security Council member, with the attendant veto power this seems highly unlikely (and I don’t think an Obama Presidency will alter this basic fact).

Thirdly, we can talk about universal jurisdiction. Well, it’s certainly the case that war crimes may attract universal jurisdiction (the majority in the Arrest Warrant case seem to say this) but this is not enough. Because while national courts may have jurisdiction over war crimes it is necessary for the ‘war criminals’ to be in the country, be apprehended and then tried. Now, even assuming the first two requirements come into fruition most national courts have ‘safety valves’ which basically allow them to avoid such prosecutions, we already know that these ‘safety valves’ can and will be used in the case of Israeli officials accused of war crimes. The best we can hope for with this type of reasoning is that certain Israeli officials (those who are not protected by immunities) can be made to feel a bit uncomfortable about travelling abroad. Fourthly then, to the best (indeed possibly the only) hope. As reports have indicated, it is possible that the General Assembly might ask the International Court of Justice for an Advisory Opinion on the matter. There are real questions about the competency of the ICJ in being able to reconstruct the facts on the ground to a great degree of accuracy. The problem of Palestinian non-statehood also resurfaces here as it becomes very difficult to determine what obligations are owed to and by an anomalous entity such as Palestine. This is assuming – of course – that the ICJ doesn’t simply say that the facts are not within its jurisdiction (which some people think is the sensible option).

Assuming that these barriers are overcome, I think there are a series of problems which mean opposing actions in terms of ‘war crimes’ etc. tend to mean that this opposition assumes a ‘liberal’ character. I would argue that this liberal character makes it very difficult to understand and fully oppose Israel’s action in Gaza and its general oppression of the Palestinian people.

So, what we should first note is that all the talk of war crimes is highly likely to focus on a series of specific events – the use of white phosphorous, the attack on UN buildings, the attack on the school etc. – rather than on the attack as a whole. As I’ve previously said, I remain unconvinced that the proportionality argument will hold up once we get to the nitty gritty of legal argument. But even assuming it does, this doesn’t condemn the attack per se but merely the way in which it was carried out. What seems very likely then is a series of de-contextualised ‘events’ which miss the bigger picture.

It is this tendency that really bothers me about the ‘war crimes’ arguments. I’m worried that in focusing on these highly specific acts, and apportioning blame to a series of ‘guilty’ individuals we miss out on the broader structural and systemic logics (as well as the everyday concerns) which have driven this attack. This is quite evident by the fact that the media – and legal attention – only flared up when there was a direct, military assault on Gaza. Very few of the legal commentators have mentioned the blockade and the great suffering it has caused (with a few honourable exceptions). It’s quite interesting that when the blockade has been mentioned at all, it is only in conjunction with the notion of a ‘humanitarian crisis’ in the Gaza strip, yet the language of ‘humanitarian crisis’ seems to elide the deliberate, conscious nature of the creation of this crisis.

Even if the blockade is brought into view (and this seems highly unlikely) legal talk – which is about abstract obligations and which state/individual violated them – fails to get to grips with why it is that that Israel acts in the way it does. I don’t want to engage in a massive analysis here, but it is pretty clear that Israel is adopting the classic colonial rhetoric of condemning the natives as backwards and inhuman, with lives that are worth much less than the lives of the settlers. If Israel is driven by this logic, then simply condemning its actions as criminal is not going to solve anything.

This lack of a focus on the broader issues is reflected in the way that legal argument treats the actions of Hamas. A lot of the legal commentary seems to unproblematically accept that Hamas’ actions constituted a , the problem is simply that Israel overreacted to this. But this can only be achieved through abstraction. One might just as easily treat Hamas’ actions as a response to Israeli actions. The only way to properly understand the conflict is to look at its historical and material context – not just isolate a particular crisis and begin to ascribe responsibility. Legal argument also has to almost ritualistic denunciation of Hamas’ actions of also breaching international law. What is interesting here is that Hamas’ actions are simply per se illegal by virtue of their low technology (which as Chris Bertram points out is morally bizarre). Furthermore, the liberal legal concentration on abstraction completely ignores the massive difference in the scale of the thing – equally denouncing two sides of a conflict when one side possesses a massive technological advantage and has killed a great many more civilians amounts to taking sides.

So – in a nutshell – my problem with the ‘war crimes’ line is that it treats the attack on Gaza as a kind of unique crisis composed of a series of mini-crises, none of which is linked to the broader dynamics of the ‘conflict’. But unless we understand these dynamics how can we hope to change them? Indeed there's a sense in which legal criticism in this respect is a sort of (to coin an Adornian phrase) pseudo-activity, which lets us feel better (and genuinely does achieve something albeit something quite small) without addressing the more important, difficult issues.

[In my head - a week ago - this came out a lot better, but it makes a few ok points, so I'll let it exist]

Gaza and the Uselessness of International Law

And so the slaughter in Gaza continues unabated. There’s really very little I can add to the commentary on this situation, particularly that written and linked to the Tomb (which really has been a bastion in this respect). However, I do think a few brief words about the law are in order. Right from the outset I should say that much of this is simply the application of a previous post to the concrete situation in Gaza.

In some respects it’s quite noticeable that there hasn’t been that much legal commentary on Israel’s actions. There have been bits here and there (and more has come out recently, which I’ll refer to later on) but nothing especially in-depth. One thing that has been pretty ubiquitous though has been a generalised sense that Israel’s actions have been ‘disproportionate’ and have – in some way – breached international law. In theory this might point to the progressive role which international law could play in criticising Israel’s actions, but actually, when we delve a little deeper, I think it shows that international law is – at best – useless.

So – proportionality. Proportionality has lots of different meanings in legal discourse, but for our purposes there are two ways in which it applies. To begin with there is proportionality’s role in the jud ad bellum – the law which regulates when it is permissible for a state to use force. Basically, in order for an act to ‘count’ as self-defence it must be necessary and proportionate. Now, this is probably the way that ‘proportionality’ criticisms can have most traction. But it is really quite difficult to argue here. That’s because – in recent times – there has been a lot of talk about what sort of force is proportionate to an accumulation of smaller attacks. The consensus is that the force deployed has to be proportionate to the threat of the attacks – not just to the number of lives lost on one side – so Israel’s response doesn’t have to be proportionate to the number of people killed in Israel, but to its objective of stopping the rocket attacks.

The particular crux of this objection becomes even more powerful in the light of jus in bello, the law that regulates the use of force once a conflict has begun. Typically what is invoked here is Additional Protocol I of the Geneva Convention; this is the strongest widely accepted international humanitarian law treaty and much of its content has achieved the status of custom, but (I’m pretty sure) Israel is no longer a party to it, with the Supreme Court being ambivalent as to its status. However, we won’t go into these questions but will instead look at this particular treaty on its merits. The crux of the ‘proportionality’ issue (although proportionality is never named as such is Article 57; the vital points to note here are that (57(2)):

2. With respect to attacks, the following precautions shall be taken:

(a) those who plan or decide upon attack shall:

(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects … but are military objectives …
(ii) take all feasible precautions in the choice and methods of attack with a view to avoiding and in any event to minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated

2(a)(iii) deals with proportionality. What is vital to note here is that the proportionality calculus is not between lives lost on either side; incidental civilian loss has to be proportionate with the anticipated military advantage. And here we come to the real problem with proportionality calculi. In order for proportionality to work it is necessary that the two things that are being compared are commensurable. But how can we possibly say if loss of life is ‘excessive’ in relation to an anticipated military advantage? The two cannot be reduced to some similar ‘substance’ that could be compared, and even if they could there is no standard which says ‘how many lives lost’ is excessive and how many aren’t. The only thing that the test can do in practice is compare different attacks (would this one kill more than the other), but here the law shows a massive degree of deference to commanders.

We can immediately see how this is problematic in relation to Gaza. The objective – stopping the rocket attacks – cannot be compared to the number of civilian lives lost and it is difficult to think of a less destructive way that this could be achieved. I think that the wild difference in opinions (all of which is articulated under the rubric of ‘proportionality’) points to the emptiness of the test. An objection that might be raised is that some of these opinions are just cynically deploying international law, but have their own agenda. But the problems with this approach are obvious, firstly, international relations is absolutely chock-a-block with people who have agendas – everyone has one – so using international law with an agenda is a pointless objection; secondly, it is precisely because divergent agendas can be expressed through international law that we can’t rely on it to support our own agenda.

This is exacerbated by the fact that ‘military objectives’ are pretty widely drawn in IHL. Under Article 52(2) of Additional Protocol I, military objectives are defined as:

[T]hose objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

As is obvious to anyone reading this, this definition includes ‘dual use’ targets, targets that would normally be ‘civilian objects’ but which are used for a military purpose – also, this definition is sufficiently broad to include power stations, bridges etc., proportionality is what is supposed to ‘limit’ this. In a situation such as that in Gaza this is massively problematic because on top of the normal problems of an industrial economy (whereby vital civilian amenities serve the military) the rocket attacks come from dispersed, diverse locations. Now whilst there is a presumption that civilian objects are not military ones (in situations of doubt) – the particular structure of the law tends to mean that in Israel can – with some legal justification – claim a wide range of targets as military objectives.

Over at Crooked Timber Daniel has mounted a valiant defence of the law, arguing that the requirements of a concrete and definite military advantage serve to limit what can be done. In practice I don’t think this actually works. State practice in this area has supported a pretty broad reading of this (indeed Daniel’s reading doesn’t ever seem to have been followed). Furthermore, I assume Israel would claim that its individual attacks were all directed towards specific targets which their intelligence had shown contributed towards the rocket activity.

Note, that the point here is not to say that international law is unambiguously on the side of Israel. What I am saying is that the tests are so open, so empty that the particular model of violence that Israel has pursued – the sustained bombardment of a fairly defenceless population – is possible to justify in legal language. The very fact that legal argument is contestable in this respect points to the fact that we really ought to steer clear of condemning Israeli acts as criminal, disproportionate etc., as Israel’s defenders can just muddy the waters by making their case. We should criticise the attacks for what they are – a brutal massacre of an unruly population driven by colonial logic – and criticise the law for being so equivocal.

I think this deserves a bit more consideration (particularly on the progressive potential of indeterminacy), so I may need to write a little more on that.

Addendum
One really important issue here that I haven’t really discussed is the way that legal claims de-contextualise the conflict. I think its vitally important that we grasp the particular imperial/colonial relationships that gave rise to this conflict. Moreover, there’s a sense in which ‘disproportionate’ violence (taken here to mean that Israeli lives are treated as worth more than Palestinian lives) is a structural feature of Zionism. Any state that is based on the dispossession and continuing oppression of the previous inhabitants of the land has to devalue these inhabitants. This is what produces statements attributing all responsibility to Hamas, this is what treats all adult male Palestinians as non-civilians. Even if IHL had more traction, it couldn’t possibly touch these deep, structural causes.