Lawfare in Gaza: legislative attack - Eyal Wiezman

Eyal Wiezman, Open Democracy, February 25, 2009

The emerging landscape of "lawfare" allows military operations to remake international humanitarian law. Israel's assault on Gaza both exposes the dangers and suggests the need for a response that subjects this law to critique, says Eyal Weizman.

The scale of Israel's twenty-two-day attack on Gaza in December 2008-January 2009 - which killed 1,300 people and damaged or destroyed about 15% of all its buildings - led to widespread international accusations that Israel has committed war crimes. A prosecutor at the International Criminal Court in The Hague is currently considering a Palestinian group's petition to indict Israeli commanders. Israel has demonstrated its resolve to challenge these allegations by launching an international campaign to argue its legal position; at the same time, and revealingly, its censors have taken to striking off the names in written reports and to masking the faces in photographs of military personnel involved.

These legal aftershocks of the attack on Gaza expose a paradox: the attack was not only one of the most violent and destructive of Israel's wars on the Palestinian people, but also the one in which Israeli experts in international humanitarian law (IHL) - the area of the law that regulates the conduct of war - were most closely involved.

Israeli military lawyers claim that the extensive harm to the civilian population is not, in and of itself, proof of violations of the laws of war; they would also like to think that contemporary Israeli military operations and the mechanisms of the occupation are legal institutions in the sense that they are shaped by IHL.

IHL is a restrictive legal regime. It limits who can be attacked in war and how. Its function is to reduce rather than to eradicate suffering. Has the law, in the case of this attack on Gaza, contributed to the proliferation of violence rather than to its containment?

Is it possible that the attack on Gaza was not restrained by an extensive use of IHL - but rather, that a certain interpretation and application of this law have enabled, not only the justification of atrocities, but crucially, the affliction of otherwise inconceivable levels of destruction? Has the chaos, death and destruction been perpetrated with the full force of the law? If this is so, should those who oppose Israeli violence use the language of international law?

The landscape of lawfare

The new frontiers of military development, which complement developments in the area of surveillance and targeting, are being explored via a combination of legal technologies and complex institutional practices. The former American general and military judge Charles Dunlap has called the result lawfare: "the use of law as a weapon of war." By lawfare Dunlap primarily meant to show how weaker, non-state actors were seeking to gain a moral advantage by claiming that war crimes have been committed by the stronger, state army; but lawfare could also be used by the state (see Charles Dunlap, "Lawfare amid warfare", Washington Times, 3 August 2007).

The legal scholar David Kennedy claims that lawfare "demonstrates an emergent relation between modern war and modern law" (see Of War and Law, Princeton University Press, 2006). It is exemplified in the way that, for example, military lawyers in the midst of a campaign "legally [condition] the battlefield" by poring over target-maps and informing soldiers in what way they are entitled to kill civilians. IHL then becomes the ethical vocabulary for marking legitimate power and justifiable death.

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.

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Eyal Weizman is an architect and director of the Centre for Research Architecture at Goldsmiths College. His books include Hollow Land: Israel's Architecture of Occupation (Verso, 2007). His exhibition and catalogue with Rafi Segal, A Civilian Occupation: The Politics of Israeli Architecture were banned by the Israeli Association of Architects, but later shown in New York and Berlin.