The military kill chain is an accelerated model of bureaucratic death – A conversation with Dr. Criag Jones

 

This text has been edited for length an clarity

Suchitra Vijayan: In this episode, we will be discussing the important new book The War Lawyers. How do we understand the relationship between war and law especially when law is entangled with the violence it is supposed to regulate? Over the last 20 years, the world’s most advanced militaries have invited a small number of military legal professionals into the heart of their targeting operations and spaces which had previously been exclusively inhabited by generals and commanders. These professionals, trained and hired to give legal advice on an array of military operations, have become known as war lawyers.

The book War Lawyers examines the laws of war as applied to military lawyers to aerial targeting operations carried out by the US military in Iraq and Afghanistan, and the Israeli military in Gaza. Drawing on interviews with military lawyers and others, this book explains why some lawyers became integrated into the chain of command. 

Joining us today is Dr Craig Jones to discuss this book.

 

Craig Jones: Thanks so much for having me. Great to be part of The Polis Project!

Suchitra Vijayan: I want to start from the beginning. I really want to understand the term ‘war lawyers’. In 2009, the Israeli military’s Operation Cast Lead caused widespread civilian casualties and destroyed much of Gaza’s vital infrastructure. You write about this in your book. How you first learned about war lawyers when you read about this incident in a newspaper allowed for large numbers of civilian casualties. I was wondering if you could walk our audience through not only the term war lawyers but also your own engagement with the term and the subsequent research that went into it.  

 

Craig Jones: War lawyers are trained legal professionals who are both soldiers and lawyers. So, they have law degrees, are trained in basic combat and they do [a] wide variety of tasks for militaries. They give them advice on all kinds of things ranging from things like divorce law, tax law, and the procurement of weapons. But what I’m interested in the book is a specific form of a military lawyer or what I call war lawyers – and that is the set of individuals who are responsible for giving live legal advice on planned and pre-planned targeting operations…lethal targeting operations that end up killing people and destroying things.

 

And going back to the newspaper article I discovered back in 2009: this is when I first heard about these war lawyers. Operation Cast Lead was a huge military operation, a three-week assault on Gaza that saw the killing of around 1400 people. By all accounts about 700 civilians and between 300 and 400 of those were children. United Nations buildings were targeted, water generation facilities, electricity, even a flour mill and hospitals were targeted and destroyed. Many of us at the time watched this live on our news channels and were filled with horror at the scene we were seeing. And then I woke up one morning to this newspaper article with details, the apparent involvement of legal advisors who had looked closely over every single target and literally ticked a box on a page, on an electronic page that gave legal authorization for these attacks to take place. To be honest, I couldn’t believe it. I couldn’t reconcile these images of the destruction that I was seeing on the news with the idea that it had all been legally sanctioned by these lawyers. And so I set about finding out where they came from and it opened up all sorts of questions for me. 

Suchitra Vijayan: You talk about ‘kill chain lawyers’ in later modern war. Before we go into kill chain lawyers, I really want to understand this concept. In the book you write that [you prefer to think about] “recent changes in warfare in terms of modern and later modern war.” How do you differentiate between modern and later modern war? When I was reading that I was quite curious about how you arrived at this distinction. You also write and talk about the implications of ‘conduct-based targeting’. I would love to hear you talk us through how you categorize these two different phases.

 

Craig Jones: There is later modern war and modern war. Let me just start with those.

I see modern warfare as the height of twentieth-century warfare and that can be anything from the pitched battles of the First World War —imagine trench warfare and known frontlines where lines are fought closely over or it could also mean the mass destruction of entire cities in the Second World War which is its own mechanised form of destruction, mass scale destruction. This reached a pinnacle in the mid-twentieth century, especially during the World Wars.

Since then we have seen, especially since the 1990s and perhaps a little later I call modern war and that’s this idea that it is no longer acceptable to destroy entire cities and raze entire neighbourhoods in the name of war. That the battlefields themselves have become amorphous. There are no longer the frontlines that we saw in the First World War. So war has really changed shape. We can’t put the full force of our militaries to use because nuclear warfare tells us that should we do that we will reach an unreasonable amount of destruction. What that leaves us with is a scenario in which – and it might sound crazy given what I just spoke about – in which militaries despite the violence that they do, care very much about how the violence is seen and how it is portrayed. So in a sense, you see the militaries turning inward to be sensitive about how their conduct is perceived by others.

 

It comes with all sorts of technological changes as well. One of those key technological changes that I trace in the book is the rise of so-called precision warfare and precision ammunition whereby rather than attacking a whole city because that’s the best your technology can do in the Second World War, you then start hunting particular individuals or particular groups or striking particular buildings within a city. That is [a] technological change, the late modern technologies that allow those sorts of things to take place. So that’s the difference between modern and late modern war as I see it.

 

You asked a little bit about conduct-based targeting. That’s also a historical transformation. It’s long and it is complicated but let me just say that conduct based targeting is about targeting individuals who are behaving in certain ways or are doing certain things that militaries deem to be suspicious or a sign of enemy activity.

 

That Osama bin Laden was up to something or that someone in Iraq was laying an Improvised Explosive Device or IED at the side of the road. So we can target them based on what it is that they are doing. Historically, that has not been the case. If you think back for example to the Second World War, the Allies were targeting the Germans because they were German soldiers. The Germans were targeting the Allies because of their status as soldiers or combatants. So that has changed —from status-based targeting to conduct based targeting. It is not entirely new but it has become a predominant way in which we do targeting and that enables us to target more specific targets, more specific individuals based on particular forms of behaviour. Now it is problematic of course, because the forms of behaviour might be completely innocent or might be completely civilian-based and we end up targeting the wrong people because we deem their “patterns of life” as the US military calls it worrying somehow. That leads to countless mistakes. You see this time and time again.

 

Suchitra Vijayan: I want to follow up on that. But the precision warfare isn’t actually precise. For instance, the constant bombing of Gaza. The last time I was in Gaza was in 2009 and it was absolutely bombed into oblivion … the constant destruction of [Gaza] happened within this precision. Similarly with Yemen. If you look at the operations the Indian state is doing in Kashmir they are going in and destroying entire villages. If perhaps we need to even look at the word ‘precision targeting’, even that terminology might actually be quite insufficient to describe what’s happening.

 

Craig Jones: It is absolutely insufficient and thanks for helping me with this clarification…When I say that militaries have become obsessed with their own conduct, what has changed from, let’s say again the Second World War is that it is no longer acceptable for a military to just destroy a city and say we are destroying a city.

 

So, if you look at the Israeli Defence Force Spokesperson Unit, everything they say about the destruction of Gaza is putting the blame onto them [on the Palestinians]. So, for example, we destroyed their entire city because they are using human shields …they hide in civilian areas and that’s why the city is being destroyed. So, ‘precision’ is partly a discourse. It is about claims of precision. It is not actually about the ability to precisely target. Right from Vietnam, through the first Gulf War, right through all of the wars on terror, including Gaza, Iraq and Afghanistan. We see the targeting machine make claims of precision that far exceed its [actual] capability to precisely target and do what it promises to do. This crazy idea in some of the literature, some of the technological literature talk about what these technologists, these technophiliacs call the ‘immaculate conception of warfare’ whereby it is totally clean warfare and of course. I think it is a lot of nonsense!

 

Suchitra Vijayan: You write about ‘kill chain lawyers’. And in the book you write in the context of the later modern war, that the US and Israeli war lawyers became kill chain lawyers. Can you walk us through how you again define kill chain lawyers and what led to the rise of this?

 

Craig Jones: First let me explain what the kill chain is before I explain what a kill chain lawyer does. A kill chain is basically another word for the targeting cycle and the targeting cycle is a series of, to be honest, bureaucratic steps that a military needs to go through in order to imagine who a target might be, to then find that target, track them in space, to then execute or what they call prosecute the target i.e., release the missile and destroy the target if it is a building or kill the person if it is a human being. And that is what they call the targeting cycle or the kill chain. It is also known colloquially and I think honestly as the ‘donut of death’ because if you look at this thing on a piece of paper, it has six phases to it which go around in a circle and leave a hole in the middle – that looks like a donut so they call it the donut of death. And you won’t find me giving credit much to the US military but I think it’s at least it is an honest way of talking about targeting what it is because so often in spheres of war, we see so much euphemism used and at least this is an honest appraisal of what it is. It is a kill machine and it is a kill chain and that’s what it does – it kills. So what a kill chain lawyer does is work within any single part of that process.

 

As I mentioned, there are six parts to it. For example, if a target is identified as worthy of being struck, a war lawyer would be asked — is it a legitimate military target? What are the potential side effects and if we consider those side effects?  Let’s say the building next door is destroyed, maybe there is a school that might be harmed, maybe there might be a series of civilians who might be harmed or even killed as a result of the strike – are all of those things proportionate to this…key thing is the principle of proportionality. A lawyer would be asked all of those questions. So, given what we know, given what we can see, given these technologies are in front of us, the screens that we can see the drone footage, given what we know which is absolutely imperfect, given the fog of war, what is your legal advice?

Is it proportional? Can we go ahead and even more sinisterly even if we know we can kill ‘x’ amount of civilians, that could be five civilians, it could be ten…my research shows that the number could be up to 50 civilians, can we still go ahead with that strike? And so that is what the legal advisor does at each and every step is there with the commander giving legal advice on whether or not targeting operations could go ahead and what other forms of action could be taken, for example, if they can’t or shouldn’t be going ahead.

 

Suchitra Vijayan: I want to follow up on this. You talk about how the kill chain “displaces responsibility onto the enemy”. And again one of the other sentences that stood out to me when we were reading and researching this book, is you write about that “if they can be ‘found’ they will be ‘fixed’ and, if necessary, ‘finished’”. Talk to us about this concept of displacing responsibility onto the enemy but also this…do you also see this as a shift of burden of proof in some ways?

 

Craig Jones: The shift in responsibility happens in key and complicated ways. So let me just deal with the military side of it first.

 

Firstmodern military operations take place over an incredible temporal and geographical time frame and zones. So, the US military killing apparatus, for example, for a strike in Iraq or Afghanistan today, requires people in lot of different places all across the Middle East. So there is the Combined Operations Centre that is in Qatar – that’s where I did a lot of my interviews with people who work there. There’s intelligence that comes from short air force base. There are drones that are flown from Creech Air Force Base. You have people all around the world with different technologies, each with different things that they can see, technologies that they have access to or don’t have access to. What you see when you add the military lawyer to the mix? They are one of a number of individuals – intelligent analysts, drone operators, military commanders on the ground, military commanders back at the station. You have, I think, a radical dispersal of responsibility, across space and across time and across all of these actors. And that’s not me putting it or anyone saying someone should have the responsibility…The very design of later modern warfare is this dispersal of responsibility by our side, across our side, so much so that when something goes terribly wrong, even if it is killing a bus load of children which happened recently, the response is that the responsibility for that attack is dispersed across number of actors. And so, it becomes impossible to find any one particular individual or a set of individuals responsible and that is problematic for obvious reasons. You have this dispersal of responsibility on our side, if you like and then on the other hand you have this crazy set of dispersal of responsibility onto the enemy. I can give lots of example but the best one would be the one I mentioned it already, the example of human shielding which we saw deployed on a mass scale in the 2014 war on Gaza and we saw it again deployed in Mosul in Iraq against ISIS. And the human shield argument is something like this and I’ll try to be brief:

 

Human shielding takes place when the enemy purportedly uses civilians and hides behind them and their wager in doing so is that they are attacking forces; so the Israeli military or the US military weren’t attacked because in order to attack they would kill civilians and then they either don’t want to kill civilians or when they do kill civilians, it looks bad from a PR perspective. So the claim is the enemy uses human shields. I would parenthetically that the enemy does indeed often use human shields and often we do too. And so the claim is this – when those targets are attacked, let’s say you go after a missile launcher or someone is firing from a particular building and Israel goes ahead and strikes that particular building, kills lots of civilians, destroys lots of infrastructure and again this happens. It happens extensively. Then what these attacking militaries say is, well because the opposite side used human shields, they are responsible for that destruction that took place. So, even though we dropped those bombs, even though we caused that destruction directly, the ethical responsibility and the legal responsibility is displaced onto, for example, Hamas if it is in Gaza, Hezbollah if it’s in Lebanon or to ISIS if it is in Mosul or somewhere else in Iraq. And this happens time and time again and there are many other examples that I could point to about that. And so, in some senses, you know you reach this…if you look at where the bodies lay on the battlefields today and who is causing them directly and yet you have this inability for our militaries to take responsibility for those killings. And you can look at those killings on places like the Iraq Body Count who keeps account of this, on websites like Airwars UK which tracks civilian causalities and the civilian causalities are massive and without public transparency and reporting, militaries generally fail to account for the destruction that they themselves reap.

 

Suchitra Vijayan: I was wondering and this is a follow up question…just as we saw 9/11 play out, you also had international law, especially through the jurisprudence of many criminal tribunals try to enshrine or at least try and enshrine idea of Command Responsibility. You had Universal Jurisdiction. Do you see this dispersal of responsibility in some ways eroding or also displacing these ideas of command responsibility and ideas of universal jurisdiction?

 

Craig Jones: When you look at how [Command Responsibility] has developed in relation to legal advice – it is fascinating and the large part of the book focuses on this. You have this paradoxical and frankly, really worrying situation in which when you ask war lawyers whose responsibility it is for a decision on the battlefield, they will turn around and say it is the commander. I agree with them because formally and you can read the law and legalese about this. It is quite clear that is the commander’s responsibility and the legal advisor as any advisory figure suggest is that they are just in an advisory capacity. You know, you ask for advice and you can either take the advice or not.

 

However, when…and I’m not the only author to do this, a colleague of mine also did it…[you] ask commanders who they think is responsible for a decision when it is taken on the battlefield. They turn around and say it is the legal advisor. And I say this it is this crazy situation in which, one says the other is responsible and vice versa and you have that displacement. But as I suggested before, you have that displacement not just taking place among those two individuals in the command responsibility. But you have this dispersal of responsibility up and down the kill chain in different places, in different time zones. And so, the classic refrain when I talk to senior military advisors or senior military personnel, is that when things get wrong they tend to blame it on the…on their junior colleagues, the people in the field who maybe didn’t have much experience, on the new guy basically, you know, or the trainee. And you have the trainees on the other hand, when you speak to them, you know, the soldiers on the frontlines that see things on the day to day basis, blame the upper echelons for giving the wrong orders, for giving them the wrong intelligence. Maybe their drone feeds were corrupted and they were the ones who identified the wrong target and then the guys on the ground went and hit the target and killed the people and they ended up being the wrong people and they had killed innocents and that’s…whose fault is that?

 

And so, you have this dispersal of responsibility ultimately radically across the kill chain. And although you have formal mechanisms in the US military, it’s called the Uniform Code of Military Justice that addresses those issues, they are I would say structurally inadequate to deal with the complexities, to deal with the problem. And they are also structurally biased in the sense that they, the investigators, are investigating themselves. So, they wear double hats in the sense that those who perpetrate the crimes or do things wrong are also the ones doing the investigations.

 

And the whole of international law in some sense is…you asked about universal jurisdiction…is premised on this extremely problematic notion that as long as a military is technically capable of doing its own investigation and of course, you and I might have a discussion about that…about whether they are capable of doing that. But for all intended purposes I don’t think there’s many people who would say that they are not capable of doing their own investigation and if they are capable of doing their own investigation then the International Criminal Court has no mandate for that because they don’t need to do their own investigations for the Criminal Court because the military is going to investigate themselves.

 

And so, other than this sort of activist use of universal jurisdiction where for example, some Israeli officials might land on an airplane on the Heathrow runway in London and be arrested or  an attempted arrest and they have to turn around. That’s the sort of activist universal jurisdiction. It hasn’t led to any convictions or anything serious. But it is very hard to imagine the sort of universal jurisdiction as imagined by the International Criminal Court, having any purchase because there is not a public appetite to demonstrate this sort of bias of their own investigations. They produce robust long investigations. I have read many of them – thousands of pages long, hundreds of pages long, some of them. They are good investigations but I think that they are…they are problematic for reasons I have already mentioned and so I don’t see a hope that they are a mechanism for that. I mean look at the ways in which universal jurisdiction has taken place. Look at what the International Criminal Court’s doing. It is largely a Court for unfortunately the Black populations of Africa who have been labelled criminals. If you go on the International Criminal Court  webpage and look at ongoing trials, that’s what you will see — the continent of Africa on trial and no other continents and places.

 

Suchitra Vijayan: Absolutely.

 

I wanted to discuss the idea of bureaucratization and the normalization of violence and I’m quoting two different sentences in the book. One comes early on where you talk about, “Every institution has its own way of normalizing particular practices and divisions of labour, especially when the product of that labour is explicitly violent; the military kill chain is an accelerated mode of the bureaucratic death.” And then later in the book, you also quote a military lawyer, who says to you, “Sometimes I feel more like chaplain…because the questions that commanders are asking us aren’t necessarily legal questions: they are looking for more absolution than legal advice a lot of the time.” I was wondering if you could talk to us about this idea of both the bureaucratization and normalization of violence?

 

Craig Jones:  In that sentence that you have read out about the institutions that normalise particular practices, I had in mind in particular a legal institution and the paradigm of criminal law. So just bear with me for a moment. So if one imagines, for example, the death penalty given as it is in some states in America today. One doesn’t necessarily see the inherent violence of that until that person is sent to death row or is executed. But what is required in order to get that person on death row, is to incarcerate them and then potentially kill them with a lethal injection or another method. And the answer to that question is that it requires a whole apparatus, a legal apparatus, a criminal apparatus and a punishment apparatus. It is full of people, right from the judge who gives his/her decision that the death penalty should be given. It requires people to carry the person in and out of court. It requires the person to give and administer the lethal injection. It requires, if you like a whole apparatus, a whole set of people, practices, and customs. It requires some public acquiescence to this in order for it to take place. And yet we don’t necessarily…it is not easy to see that. It is perhaps easier to see that in the death penalty than in any other area of criminal law, although the abolitionists would say otherwise. And what happens in any bureaucracy I think is this division of labour whereby it becomes very easy or easier for any particular individual in any one of those jobs that I have just read out to say that someone else is responsible or they are just part of a chain of things in larger bureaucracy. Maybe they are literally just ticking a box on a piece of paper. Maybe they are the ones that only give the lethal injection but they didn’t make the injection. Who’s responsible? So, you have this displacement of responsibility and I come…and I use this term that I have borrowed from other authors of the ‘adiaphorization’ of killing and it’s a classical term and it simply means that humans are able…have this capacity to silence our own moral misgivings about a process. When we are involved in that process or when we are too close to see the end result of a process. The logical conclusion of all of that was of course the rise of Nazis and the following of the orders. And that’s the – Zygmunt Bauman wrote about this in Modernity and the Holocaust. It’s the people’s inability to take responsibility for their own inactions. Collectively, that can result in heinous crimes being committed.

 

And I think ultimately that’s what the kill chain does. It is a bureaucracy of death. It is a bureaucracy of death which admits its own name which I think is important but the interesting thing about that and I give them credit as I said earlier…So many people have gotten back to me since the publication of the book and beforehand, saying that this kill chain is a polemic or a controversial thing to call it because the kill chain isn’t only about killing. It shouldn’t be called that. It is the dysphemism, if you like, the opposite of a euphemism. We should call it the targeting cycle. We should reduce it to these euphemistic phrases. And so, I think ultimately, this is what it does. It is a bureaucracy of death so much so that any one person you speak to…I did these interviews in people’s houses, they invited me over for dinner. I met them in restaurants, in cafes…each one of them as an individual, this is Hannah Arendt’s Banality of Evil…each one of them is a perfectly normal, decent human being with kids that they take to school in the morning. They are lovely and all the rest of it and yet somehow they are involved in this bureaucracy of death and have somehow silenced their own moral misgivings. That’s not a judgement. I think we are all susceptible to that in different ways. But I think it is deeply, deeply troubling.

 

And I think the second part you asked about this chaplain, about the lawyer becoming a chaplain…I had this other crazy quote in which a military lawyer says that legal advisors are being used to help commanders in a complex process of getting other human beings prepared to kill other human beings in the name of the state. So these are big decisions. These are life and death decisions. Men and women go home every night having literally participated in somebody else’s death. Sometimes mass death. Sometimes the destruction of civilian buildings, schools, hospitals and all the rest of it. And how can one come to terms with that in the modern era which may be more secular, in which we don’t have God to turn to for forgiveness and those sorts of things? And I think that the law comes in at a crucial moment to serve as a crutch on which to help with that process and hence this idea that you have these quite desperate commanders I think in some situations looking for a form of absolution for their acts by turn of the legal advisor. And I think some legal advisors have come into that pastoral or otherwise quasi-religious role in terms of their helping the silence, of forgiveness, of the misgivings of state violence.

 

Suchitra Vijayan: I now want to, kind of, go into the question of impunity. You mentioned that one of the generals…in the book you talk about how one of the generals asks his lawyer, “Can we kill Saddam Hussein” and asks for legal advice in writing and you characterize this as a “get out of jail card should things go wrong.” In your opinion to what extent do you see the role of the war lawyers as also part of creating structures of impunity?

 

Craig Jones: It is a good and complicated question this one and I want to give it justice.

 

So just for emphasis, the specific instance we are talking about here was back in 1990 when at one point the US military had who they thought was Saddam Hussein in their sight and they had the capability of potentially targeting and killing him right there and then. And this military commander is like, alright we have got him but turns to his military lawyer who I interviewed and says, can we do this? And don’t just tell me yes verbally. I want it written down, that you have said this because if this blows up on CNN tonight or next week and I’m the one that ordered the strike, I want legal cover for my action. I want it written down. I want proof and I want this letter and I want to keep it in my pocket until it’s all blown over. Now we know obviously by dint of history that that strike never took place. Saddam Hussein wasn’t captured and killed until many years later after the invasion of Iraq in 2003. But I think what is interesting about that story is this desire by the military commander to have legal cover for his actions in this particular role. I’ll be uncomfortable extrapolating from that about any culture of impunity because I think that a phrase like that would give too much credit to the idea that this is purposeful. I don’t think there is a knowing, purposeful decision to evade responsibility in the sense of impunity. What I think is, that you have a system as I have talked about the kill chain. You have men and women who sign up for this kill chain, perhaps without realising what it is, fully realising the destruction that it can cause. Perhaps they have been lured by the lie of precision and the fact that we are only killing the bad guys and not killing the good guys so to speak. And I think what you have in effect is impunity but that’s not what you have by design. I feel uncomfortable pointing to for example, that commander or that military lawyer or any other commander or military lawyer as an individual to say that they are conniving together, to generate something called impunity. That’s partly my understanding of power and how it works not just in war but outside of war as well because I don’t think we need to have that threshold of conspiratorial impunity. This idea of men trying to get away with things, doing bad things and getting away with it. I think what we have is men doing bad things and getting away with it. But I don’t think that’s the intention. It is the effect. And, if that’s all a bit abstract, I do think what you have ultimately at the end of the day, regimes of killing that don’t have the forms of accountability which public might imagine them to have, that when you lift or when you see behind the curtain or whatever metaphor you want to use, actually the mechanisms for accountability, the mechanisms for investigations are scarily, scarily thin. Progress is being made by great humanitarian and human rights organizations that try to bring to account those sorts of things but in the absence of those groups and there are some in the US, some here in the UK, who are doing all kinds of great work to build the robustness of this, such that we don’t have the culture of impunity. They are doing great work, foundational work: documenting civilian lives lost, documenting when decisions have gone wrong but much, much work remains to be done.

 

Suchitra Vijayan: I now want to go to a slightly different period in history and discuss the Mai Lai Massacre. On the Mai Lai Massacre and what it does, it says that the response of the US to it was to create a law of war program, perhaps instead of really thinking through and having a reckoning with what happened during the massacre. Can you talk to us, and walk us through the Mai Lai Massacre and how the US responded to the massacre but also the things they did not do? The fact that perhaps there wasn’t any kind of reckoning in terms of what happened and took place in Mai Lai.

 

Craig Jones: I’m really glad to be asked the question that goes so far back in history. I think all too often we think about what happened in history is too long ago or not somehow relevant to the present. The Vietnam War is incredibly relevant to the present. What happened at Mai Lai is a massacre and I’m not being polemic. Even the US military has finally come to understand it as a massacre in which a series of soldiers marched into villages in Vietnam. In fact, several villages massacred 300-400 civilians in the span of a morning and this was captured by an army photographer who later released the images and this became known as the infamous Mai Lai Massacre. And since by the way, historians have unearthed massacre after massacre after massacre. Bernard Greiner’s War Without Fronts is a case in point as was Turse’s Kill Anything That Moves which is a more recent book. And so these massacres weren’t the exception. The US military fastened on the Mai Lai Massacre and produced a series of reports… one of them was called the Peers Report and it basically found that one of the reasons why these troops committed this massacre was that they had inadequate training in the laws of war and then that’s that program that you have referred to – the law of war program in which basically the US military tries to put in place a series of lessons learnt, of legal doctrine and practice in order to properly train soldiers in the laws of war so that they don’t get around killing groups of civilians. And in some way, it was a necessary but completely insufficient response to what happened in Vietnam. And I think what happened in Vietnam, partly as a result of the Mai Lai Massacre, was of course a massive, massive anti-war movement and anti-war protests that would galvanize in 1968 which is when that happened and you have the big movement of anti-war protests. But in many ways, I think it is inadequate like I say because it doesn’t, I think you are beginning to suggest, come with a reckoning both of what happened in Vietnam and what America did. And what it did wasn’t just with the Mai Lai Massacre and the many other massacres that took place that I mentioned. It was also the brutal, brutal bombing campaigns from the sky – Operation Rolling Thunder, and Operation Linebacker from 1968 to 1972. Huge bombing campaigns. Napalm Bombing is the one that gets the most public attention. But they were bombing jungles and forests and killing countless civilians beneath those bombs completely indiscriminately.

 

And in many ways, the legacy of Vietnam, the failure to do it is America’s undoing today. I mean I would say that in many ways America is still fighting the Vietnam War. It is fighting the Vietnam War in Iraq and Afghanistan and all over the world. In the same way in which America is still fighting the US Civil War on US soil today. And so it’s been largely forgotten. It’s been actively covered up and inactively or passively covered up and you see this with amazing clarity in…I’m not sure if listeners would have seen this. If they haven’t I thoroughly recommend it — Ken Burn’s documentary, ten-hour documentary on the Vietnam War, if you have got the appetite for it. And I don’t think the population ever knew what happened in Vietnam. Until I watched this documentary…I had studied Vietnam for many years but even I, until I watched this documentary, had no understanding of the true extent of the deception of what happened in Vietnam. Nixon, Kennedy, I mean the systematic lies that were told to the population. The war that was sold back home was not the war that was being fought on the ground and all of the costs, both the US troops and the Vietnamese. And this is in many ways history repeating itself. The US has not come to terms with it. It has failed to account for the voices in the anti-war movement. Something that here in Britain we have done the same with our own colonialism, with our involvement in various colonies in the 19^th and 20^th Centuries. And the rest of Europe has done it too. I think, in fact, the only successful country, European country at least, is Germany in its reckoning with what happened in the Nazi Germany period and then the Second World War. And I think it is to our detriment, both in Europe, certainly here in the UK because I think that Brexit is in some ways about a wish for a colonial past that we have failed to deal with, that we have failed to have a public education program about. And I think in some ways, America’s desire for a victory, desire for a clean victory, a war, a sort of a humanitarian campaign in which Americans can once again emerge as the good guys have constantly failed since Vietnam and so you constantly keep fighting this war and you know, Afghanistan, now 20 years in the making replaces Vietnam as the longest war ever. And yet you are still hunting for your victory, partly because you haven’t been able to come to terms with the past.

 

Suchitra Vijayan: I think you are absolutely right! I spent about three years in Afghanistan and the ghost of Vietnam was there and the ghost of Vietnam was in…I haven’t spent much time in Iraq but I think the ghost of Vietnam is still there.I know we are coming to the end of the conversation so I want to focus on [one of] the things I was very curious about in this book: the methodology…How did you think about writing about war lawyers but again focusing on Israel and the United States in particular? So that’s the first part of the question. I know that you read about the attacks of the IDF but I’m curious why Israel and the United States but perhaps not Turkey or India, again similar democracies who have now been using their military to target their own colonial occupations of various occupied spaces. And the second part of the question is your choice to primarily interview war lawyers to study the role of war lawyers. And what convinced you that self-representations [are] essential? That you shift the gaze from…those who are targeted [to] focusing your attention on those who are part of this decision-making structure.

 

Craig Jones: Two excellent questions, thank you.

 

Firstly the focus on US and Israel [is] for several and many reasons and by no means [are these] the only two states that are doing the sorts of things that I document in the book. And I really welcome listeners out there to engage critically with the questions that you have raised about what Turkey is doing, what Sri Lanka did with Tamils and all the rest of it. I think there are really important unstudied sites that should be taken more seriously.

 

But I focus on US and Israel for a few reasons…Partly I was interested, as you have noticed, with what the IDF did in 2009 and I wanted to understand the history of how it was that that came about. It turns out that the Israeli military borrowed the tactic of using military lawyers for this sort of thing, from the US military, from the US military’s use in the invasion of Panama in 1989 and then subsequently thought that they would start doing it when the Second Intifada happens in 2000. And so you have this interesting sort of interchange and interplay between the US and Israel. Just to push that interchange a little further. So Israel begins using in 2000 during the Second Intifada, the popular Palestinian uprising in 2000 – starts using military lawyers in targeting operations. They also at the same time announce that they will be assassinating individual Hamas members. They didn’t call it assassination of course because that’s too controversial. In Hebrew they call it sikul memukad, which means and this is a lovely euphemism for you – focused prevention or focused foiling depending on how it’s translated and what you get is this legal announcement of assassination. This is before 9/11. Just a few months before 9/11 you have the US delegations from Washington sent over to Israel to say hang on a minute. Even though we are allies, we cannot abide by this. There is an international ban on assassination. The US itself also has a ban on assassination and what you are doing now is tantamount to, you know, extrajudicial killing as it is called in human rights law. It is illegal. We advise you no to do it. To cease. Britain says the same. You have statements from Jack Shaw. You have statements from the White House at the time explicitly prohibiting this and saying, we don’t think you can assassinate individuals because it is extrajudicial killing.

Then 9/11 happens and from the interviews that I did, the same lawyers that gave this legal opinion as to why they were able to assassinate then invite back the same delegations from Washington and tell them that how they went about doing it because the US’s interested because it wants retribution for the attacks of 9/11 to figure out how it was that they created a paradigm in which it was okay to conduct assassination. This is become known to us now. It has become completely normalised. And so all of these terms might seem inflammatory. We know it all today now as targeted killing and what happened in Israel in early the 2000s in the Intifada was the seminal legal moment whereby they understood their relationship with Gaza and the West Bank as one of what they call an armed conflict short of war. It was this fictitious legal term. It was a term of art that was designed to basically say we are now at war with Palestine, with the Palestinian Territories and so when you have a paradigm of war it is legal to kill. So this is not assassination. This is just regular killing within war and therefore we can’t call it assassination. So it becomes known as targeted killing like I say. And then just a year later you have the first drone attack in Yemen that kills al-Harethi, the guy who was responsible for the bombing of the USS Cole, the big ship in the strait of Hormuz. And then you have the drone campaign beginning in Pakistan and in Somalia around 2006. And you have essentially this globalised assassination campaign which has become publicly and palatably known as the Drone Programme take place.

 

And so, this is a long way of answering your question but the US and Israel here, there is this crucial nexus of interplay between the both. Legal borrowings that create — and this is the more sophisticated answer to the question — that create hegemonic forms of interpretation of the law which then hopefully, for them, create legal precedent and so what they do by breaching the law, by violating the law today, becomes legal tomorrow. And you have in the book these crazy passages in which these military lawyers literally say: International Law progresses through violations; what is prohibited today, will be allowed tomorrow if done by enough states. Not just if done by enough states, but if done by particular states, particular states like the US and Israel who have a command of International Law, who understand International Law very intimately and who have rightly or wrongly, and I think we’d say wrongly, a outweighed and outsized shape in terms of their interpretation of International Law.

And so that’s largely the long way of saying, what Israel says and does and what the US says and does especially if and when they do it together, especially if countries of NATO forces and especially if the UK follow through and begin to do those practices as well, you have a formation of cutting edge legality or illegality, depending on your view take place. So, you have the culmination in shaping of International Law in extremely powerful ways.

The assassination stuff that I just told you about is one example. There are more throughout the book. One of them is the targeting of dual-use infrastructure and [these] legal justifications for targeting of electricity grids and hospitals and all these things.

There is an attempt to push the envelope of international law and certainly as your question implies, the US and Israel are not the only states that do that but I would argue that in some ways they are the best states that do that or they are the worst states that do that, depending on your view. And I think other places are following through, i.e. the precedent that they are setting is an extremely dangerous one but you know we have a saying here – what is good for the goose is good for the gander and what’s stopping our enemies, so to speak, from using the same tactics that we have employed.

That’s the first question by US and Israel and the second one is why focus on war lawyers rather than or [as opposed] to focusing on those we bombed. I see a slightly different way: my political, ideological and even intellectual affiliations are with those victims of war, with those bodies strewn across the battle fields, in the places that my country, the listener’s country – the US has been involved in. I think that it is really important to come to terms with, to deconstruct, to understand how it is that our militaries come to do violence in order to critique it. And I think that when you look at, for example, if anyone is interested in International Law or wants to talk about International Law, rather than starting from the starting point of human rights –that is the ultimate right to life –  rather than starting from the Geneva Conventions on the rights of civilians, let’s start by looking at how militaries interpret those things. How they understand the rights and obligations on the battlefield, as it is taking place because I agree sympathetically with some sort of humanitarian or liberal reading of the laws of war but that’s not how it takes place on the battle filed. What is the point of sitting and reading the Geneva Conventions? You can pull them up. They are on Wikipedia. You can pull out the Human Rights Conventions or the Charter and talk about that but what you are going to do is get into a discussion and ultimately at loggerheads to do with different degrees of interpretation.

Humanitarians will interpret the law as something which restrict violence the military would do. We’ll have the interpretations of how they can do violence through something called military necessity. And you just have I think unuseful arguments about rights and responsibilities in war. So in the book, what I am interested in by talking to military lawyers is to look at how at the very moment the violence takes place, what is the law doing? How is it being interpreted? How is it being wielded? How is this thing that was textual in the Geneva Conventions being made into life and death on the battle field? And I think that is critically important because it has effects. This is showing how that law has material effects in war. It is not just text. It is not just words. It’s not just legal semantics. It’s not about legal scholars and jurisprudence. It is literally about life and death and unless you look at that intersection very seriously, I don’t think you can understand the effects of law in this world and especially not in their world. So, I think that the book has its sympathies with those victims of violence even though it focuses, you know and it is not unproblematic. I think here is too much focus on the militaries who do the violence and not enough on the other side. And in fact, my next project, my current project does that: it looks at the lives of victims of violence, especially have been wounded and who survived violence and who then live long, terrible lives of pain, after amputation or after having been shot or [having] suffered a blast or bullet wound. So, I think both things are important. But where I make my contribution is to that critique of violence if you like.

Suchitra Vijayan: Prof Craig Jones, that you so much for joining us for this conversation and I think you are absolutely right. For me, this book is also an ethnography of power and law and violence and thank you so much for this remarkable book.

You can find and read The War Lawyers at Oxford University Press and I suggest both students and others of war and violence to definitely engage with this book. Thank you so much and I really appreciate you taking this time for The Polis Project’s Conversation Series.

Craig Jones: Thanks so much for having me.