The War Lawyers – A Conversation with Dr Craig Jones
(This transcript has been edited for length and clarity)
Suchitra Vijayan (SV): In this episode we will discuss 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, 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 The War Lawyers examines the laws of war as applied by Military lawyers to aerial targeting operations carried out by the US Military in Iraq and Afghanistan and by the Israeli Military in Gaza. Drawing on interviews with Military lawyers and others, this book explains why some lawyers became integrated in the chain of command.
Joining us today is Dr Craig Jones to discuss his book, Dr Craig Jones, thank you so much for joining us today.
Craig Jones (CJ): Thanks so much for having me. Great to be part of The Polis Project!
SV: I want to start from the beginning and understand the term “war lawyers.” In 2009, the Israeli Operation Cast Lead caused widespread civilian casualties and destroyed much of Gaza’s vital infrastructure. You write about how you first learned about war lawyers when you read about this incident in a newspaper. I was wondering if you can walk our audience through not only the term war lawyers but your own engagement with the term and the subsequent research that went into it.
CJ: War lawyers are trained legal professionals, who are both soldiers and lawyers. They have law degrees, are trained in basic combat and they do a wide variety of tasks for the Military. They give advice on all kinds of things ranging from divorce law, tax law or the procurement of weapons. In the book I’m interested in a specific form of a Military lawyer, what I call war lawyers: 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.
Operation Cast Lead was a huge Military operation, a three-week assault on Gaza that saw the killing of around 1,400 people. By all accounts about 700 civilians, 300-400 of them were children. United Nations buildings, water generation facilities, electricity, even a flour mill and hospitals were targeted and destroyed. Many of us watched this live on news channels and were filled with horror. 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 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 destruction that I was seeing on the news with the idea that it had all been legally sanctioned by these lawyers. So, I set about finding out where they came from and it opened up all sorts of questions for me. [QT]
SV: You talk about “kill chain lawyers” in later modern war and 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 late-modern war.” How do you differentiate between modern and late-modern war? How did you arrive at this distinction? You also write about the implications of “conduct-based targeting.” How do you categorize these two different phases?
CJ: There is late-modern war and modern war. Let me just start with those. I see modern warfare as the height of 20th Century warfare, from the pitched battles of the First World War – trench warfare and known frontlines where lines are fought closely over – to the mass destruction of entire cities in the Second World War, with own mechanized form of mass destruction. Then after the 1990s we have late-modern war where it is no longer acceptable to destroy entire cities and raze entire neighborhoods in the name of war. Battlefields themselves have become amorphous. There are no longer the frontlines that we saw in the First World War. War has really changed shape. We can’t put the full force of our Militaries because nuclear warfare tells us that, should we do that, we would reach an unreasonable amount of destruction. That leaves us with a scenario in which – and this may sound crazy given what I just spoke about – the Military, despite the violence they do, care very much about how this violence is seen and portrayed. In a sense you see the Military 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 I trace in the book is the rise of so-called precision warfare and precision ammunition. Rather than attacking a whole city because that’s the best your technology can do like in the Second World War, you start hunting particular individuals or particular groups or striking particular buildings within a city. So that’s the difference between modern and late modern war as I see it.
You also asked about conduct-based targeting. That’s also a historical transformation. It’s long and 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 the Military deem to be suspicious or a sign of enemy activity. That Osama bin Laden was up to something or that someone in Iraq is laying an Improvised Explosive Device (IED) at the side of the road. We can target them based on what it is that they are doing.
Historically, that has not been the case. If you think back 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. This has changed from status-based targeting to conduct-based targeting. This is not entirely new, but it has become a predominant way in which we do targeting: this enables us to target more specific targets, more specific individuals based on particular behaviors. This is of course problematic, because the forms of behavior might be innocent or might civilian-based and we end up targeting the wrong people because we deem their “patterns of life,” as the US Military calls it, worrying. Tis leads to countless mistakes.
SV: I want to follow up on that. 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 bombed into oblivion. The constant destruction of Gaza happened with precision. Similarly in Yemen. If you look at the operations the Indian State is conducting in Kashmir, they go in and destroy entire villages. Perhaps we need to rethink precision targeting as that terminology might be insufficient to describe what’s happening.
CJ: It is absolutely insufficient and thanks for helping me with this clarification. When I say that the Military have become obsessed with their own conduct, what has changed from the Second World War is that it is no longer acceptable for the Military to just destroy a city and say we are destroying a city.
If you look at the Israeli Defense Force Spokesperson Unit, everything they say about the destruction of Gaza is putting the blame onto the Palestinians. So, for example: “We destroyed their entire city because they are using human shields” or “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, not actually about the ability to precisely target – from Vietnam through the first Gulf War, the War on Terror, Gaza, Iraq and Afghanistan. We see the targeting machine make claims of precision that far exceed its capability to precisely target and do what it promises to do. This crazy idea in some of the literature call this the “immaculate conception of warfare,” a totally clean warfare, of course I think this is nonsense.
SV: You write about “kill chain lawyers” in the context of late-modern war, how US and Israeli war lawyers became kill chain lawyers. How you again define kill chain lawyers and what led to their rise?
CJ: First let me explain what the kill chain is before I explain what a kill chain lawyer does. A kill chain is another word for the targeting cycle. The targeting cycle is a series of bureaucratic steps that the Military needs to go through in order to imagine who a target might be, to then find that target, track them in space. Then execute, or what they call prosecute, the target that is release the missile and destroy the target if it is a building or kill the person if it is a human being. This is what they call the targeting cycle or the kill chain. It is also known colloquially as the “donut of death” because if you look at it on a piece of paper, it has six phases that 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. You won’t find me giving much credit to the US Military, but I think it’s at least a honest way of talking about targeting: it is a kill machine and it is a kill chain and that’s what it does – it kills. A kill chain lawyer works within every single part of this 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 this a legitimate military target? What are the potential side-effects and whether to consider those side-effects. Let’s say if the building next door might be destroyed, maybe if there is a school that might be harmed, 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? The key thing is the principle of proportionality. A lawyer would be asked all those questions. Given what we know, given what we can see, given these technologies, the drone footage, the fog of war, what is your legal advice? Is this proportional? Can we go ahead even if we know we can kill x amount of civilians – my research shows that the number could be up to 50 civilians – can we still go ahead with the strike? This is what the legal advisor does. At each and every they are 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.
SV: You talk about how the kill chain “displaces responsibility onto the enemy.” You say: “If they can be ‘found’ they will be ‘fixed’ and, if necessary, ‘finished.’” Tell us about this concept of displacing responsibility onto the enemy and whether you see this as a shift of the burden of proof in some ways?
CJ: The shift in responsibility happens in key and complicated ways. Let me just deal with the military side of it first. Modern military operations take place over incredible temporal and geographical time frames and zones. The US military killing apparatus, for example, for a strike in Iraq or Afghanistan, require people in many different places across the Middle East. So there is The Combined Operations Centre is in Qatar – that’s where I did a lot of my interviews with people who work there. Drones 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 do 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 a radical dispersal of responsibility, across space, time and all these actors. The very design of late-modern warfare is this dispersal of responsibility so much so that when something goes terribly wrong – even if it is killing a bus load of children– the response is that the responsibility for the attack is dispersed across number of actors. It becomes then impossible to find any one particular individual or set of individuals responsible and that is problematic for obvious reasons. You have this dispersal of responsibility on our side and then you have this crazy dispersal of responsibility onto the enemy. I can give lots of example but the best one would human shielding, which was deployed on a mass scale in the 2014 war on Gaza and again in Mosul in Iraq against ISIS.
Human shielding takes place when the enemy purportedly uses civilians and hides behind them. Israeli or US Military wouldn’t attack because to attack they would kill civilians and then they either don’t want to kill civilians and, when they do kill civilians, it looks bad from a PR perspective. So the claim is that the enemy uses human shields. I would parenthetically say 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, these attacking militaries say that, because the opposite side used human shields, they are responsible for the 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 ISIS (if it is in Mosul or somewhere else in Iraq). If you look at where the bodies lay on the battlefields and who is causing them, you have the inability for our Military to take responsibility for those killings. And you can look at those killings on places like the that keeps account of this or , which tracks civilian causalities. Civilian causalities are massive and without public transparency and reporting, the Military generally fail to account for the destruction that they themselves reap.
SV: You have international law and criminal tribunals try to enshrine the idea of command responsibility and universal jurisdiction. Do you see this dispersal of responsibility in some ways eroding or displacing these ideas of command responsibility and universal jurisdiction?
CJ: When you look at how command responsibility has developed in relation to legal advice is fascinating and large part of the book focuses on this. You have this paradoxical and 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’s. 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, will suggest that they are just in an advisory capacity. You ask for advice and you can either take the advice or not. However, when you ask commanders who they think is responsible for a decision on the battlefield, they turn around and say it is the legal advisors’. It is in this crazy situation in which one says that the other is responsible and vice versa that 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 and in different time zones. 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 their junior colleagues, the people in the field who maybe didn’t have much experience, on the new guy or the trainee. And you have the trainees on the other hand, the soldiers on the frontlines who see things on the day to day basis, blame the upper echelons for giving them the wrong orders and intelligence. Maybe their drone feeds were corrupted and they were the ones who identified the wrong target and then the guys on the ground hit the target and killed the people who ended up being the wrong people and hence killed innocents – whose fault is that?
This dispersal of responsibility happens radically across the kill chain. And although you have formal mechanisms in the US Military such as the Uniform Code of Military Justice to addresses those issues, they are structurally inadequate to deal with the complexities of the problem. And they are also structurally biased in the sense that the investigators are investigating themselves, they wear double hats: those who perpetrate the crimes or do things wrong are also the ones who do the investigations.
Universal jurisdiction is premised on this extremely problematic notion that the Military is technically capable of doing its own investigation. You and I might have a discussion about whether they are capable of doing that. 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 because the Military is going to investigate themselves.
It is very hard to imagine 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. They are good investigations, but I think that 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 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.
SV: 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 write that “[e]very institution has its own way of normalizing particular practices and divisions of labor, especially when the product of that labor 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 tell 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 about both the bureaucratization and the normalization of violence?
CJ: In the sentence that you read out about the institutions that normalize particular practices, I had in mind in particular a legal institution and the paradigm of criminal law. If one imagines, for example, the death penalty given in some states in America today, one doesn’t necessarily see the inherent violence of that until the person is sent to the death row or is executed. What is required in order to get that person on death row, to incarcerate them and then potentially kill them with a lethal injection or another method? The answer is that it requires a whole apparatus – a legal apparatus, a criminal apparatus and a punishment apparatus: the judge who gives his/her decision that the death penalty should be given; people to carry the person in and out of Court; the person to administer the lethal injection. It requires a whole apparatus, a whole set of people, practices, customs and it requires public acquiescence in order for this to take place. And yet it is not easy to see that. It is perhaps easier to see that in the death penalty than any other areas of criminal law, although the abolitionists would say otherwise. What happens in any bureaucracy is this division of labor whereby it becomes very easy or easier for any particular individual in any one of those jobs to say that someone else is responsible or they are just part of a chain of things in a 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 – for this I use a term that I borrowed from other authors, the adiaphorization of killing. This is a classical term and it simply means that humans have this capacity to silence the moral misgivings of a process when we are involved in that process or when we are too close to see the end result. The logical conclusion of all of that was of course the rise of Nazis and the following of the orders. 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. 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.
Many people got back to me since the publication of the book saying that the kill chain is a polemic or a controversial way to call it because the kill chain isn’t only about killing so it shouldn’t be called that. It is a 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 – I did these interviews in people’s houses, they invited me over for dinner, I met them in restaurants, in cafes. 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 yet they are involved in this bureaucracy of death and have silenced their own moral misgivings. That’s not a judgement. I think we are all susceptible to that in different ways, but I still think it is deeply, deeply troubling.
You also asked 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 preparing human beings to kill other human beings in the name of the State. These are big decisions, life and death decisions. Men and women go home every night having literally participated in somebody else’s death, sometimes in mass death, sometimes in the destruction of civilian buildings, schools, hospitals. And how can one come to terms with that in the modern era, an era that is more secular, in which we don’t have God to turn to for forgiveness? The law comes in at a crucial moment to serve as a crutch to help with the process. Hence this idea that you have these desperate commanders that look for a form of absolution for their acts and turn to the legal advisor for that. Some legal advisors have come into that pastoral or quasi-religious role in their helping the silence in terms of forgiveness of the misgivings of State violence.
SV: I now want to go into the question of impunity. In the book you talk about how one of the generals who asks his lawyer: “Can we kill Saddam Hussein?” He asks for legal advice in writing and you characterize this as a “get out of jail card should things go wrong.” To what extent do you see the role of the war lawyers as also part of creating structures of impunity?
CJ: This is a good and complicated question and I want to give it justice. Just for emphasis, the specific instance we are talking about here was back in 1990 where at one point the US Military have who they think is Saddam Hussein in their sight and they have 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 who 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. What is interesting about this story is this desire of 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 – a phrase like that would be giving 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. You have a system like the kill chain, you have men and women who sign up to this kill chain perhaps without realizing what it is, without fully realizing 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. What you have in effect is impunity but that’s not what you have by design. I feel uncomfortable pointing to 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 impunity. That’s partly my understanding of power and how it works not just in war but outside of war as well. I don’t think we need to have that threshold of conspiratorial impunity, of men trying to get away with things, doing bad things and getting away with it. What we have is indeed men doing bad things and getting away with it, but I don’t think that’s the intention. It is the effect. You ultimately have regimes of killing that don’t have the forms of accountability that people might imagine them to have, but actually the mechanisms for accountability, the mechanisms for investigations are scarily thin. Progress is being made by great humanitarians and human rights organizations, who are doing all kinds of great work to build the robustness of this process so that we don’t have a culture of impunity. They are doing great work, foundational work: documenting civilian lives lost, documenting when decisions have gone wrong, but much work remains to be done.
SV: I now want to go to a slightly different period in history and discuss the Mai Lai Massacre. The response of the US to it was to create a law of war program instead of really thinking through and having a reckoning with what happened during the massacre. Can you walk us through the Mai Lai Massacre and how the US responded it, but also about the things they did not do.
CJ: I’m really glad to be asked a question that goes so far back in history. We often think that what happened in history is too long ago or not 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 and massacred 300-400 civilians in the span of a morning. This was captured by an army photographer who later released the images: this became known as the infamous Mai Lai Massacre. Historians have since 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. These massacres weren’t the exception, but the US Military fastened on the Mai Lai Massacre and produced a series of reports. One of them is the Peers Report and it found that one of the reasons why these troops committed this massacre was that they had inadequate training in the laws of war. The program that you referred to – the law of war program – is basically the US Military trying to put in place a series of lessons learnt, of legal doctrine and practices in order to properly train soldiers in the laws of war so that they don’t get around killing civilians. This was a necessary, but completely insufficient response to what happened in Vietnam because it doesn’t come with a reckoning of both what happened in Vietnam or what America did. And what it did wasn’t just the Mai Lai Massacre, but many other massacres as I mentioned and the brutal bombing campaigns from the sky – Operation Rolling Thunder, Operation Linebacker from 1968 to 1972. These were huge bombing campaigns. Napalm Bombing is the one that gets the most public attention, but they were bombing jungles and forests and indiscriminately killing countless civilians.
In many ways the legacy of Vietnam is America’s undoing today. 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, America is still fighting the US Civil War on US soil today. And it has been largely forgotten, it has been actively covered up. I thoroughly recommend Ken Burn’s ten-hour documentary on the Vietnam War. I don’t think the population ever knew what happened in Vietnam. I studied Vietnam for many years but until I watched this documentary I had no understanding of the true extent of the deception of what happened in Vietnam and 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 with all the costs paid by both the US troops and the Vietnamese. History is in many ways repeating itself. The US has not come to terms with it. It has failed to account for the voices in the anti-war movement. The same here in Britain with our colonialism, with our involvement in various different colonies in the 19th and 20th Century and in the rest of Europe. The only successful European country is Germany in its reckoning with what happened in the Nazi period and the Second World War. And I think it is to our detriment. America’s desire for a clean victory, for a humanitarian campaign in which Americans can once again emerge as the good guys, has constantly failed since Vietnam and so you constantly keep fighting this war. Afghanistan, now 20 years in the making, replaces Vietnam as the longest war ever. And yet they are still hunting for your victory, partly because they haven’t been able to come to terms with the past.
SV: I spent about three years in Afghanistan and the ghost of Vietnam was certainly there. I haven’t spent much time in Iraq, but I think the ghost of Vietnam is also still there.
We are coming to the end of the conversation. I was very curious about the methodology in your book. How did you think about writing about war lawyers focusing on Israel and the United States in particular? So that’s the first part of the question. I’m also curious why Israel and United States and not, say, Turkey or India, similar democracies that use their Military to target their own colonial occupations. And the second part of the question is your choice to primarily interview war lawyers. As you shift the gaze from those who are targeted to those who are part of this decision-making structure, what convinced you that self-representations are essential?
CJ: Two excellent questions, thank you. Firstly, the focus on US and Israel is for several 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 to engage critically with the questions that you have raised about what Turkey is doing or what Sri Lanka did with Tamils. I think there are really important unstudied sites that should be taken more seriously.
I focus on US and Israel for a few reasons. I was interested, as you have noticed, in what the Israel Defense Force did in 2009 and wanted to understand the history of how it came about. It turns out that the Israeli Military borrowed the tactic of using military lawyers from the US Military, from their use in the invasion of Panama in 1989 and then subsequently started doing it when the Second Intifada happened in 2000. You have this interesting interchange and interplay between the US and Israel. Just to push that interchange a little further: Israel begins using military lawyers in targeting operations in 2000 during the Second Intifada. They also at the same time announced that they would be assassinating individual Hamas members – they didn’t call it assassination, of course, because that’s too controversial. In Hebrew they called it sikul memukad, which means (and this is a lovely euphemism for you) focused prevention or focused foiling so what you get is a legal announcement of the assassination.
This is before 9/11. Just a few months before, you had a US delegation 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 has a ban on assassination and what you are doing now is tantamount to extrajudicial killing as it is called in human rights law. It is illegal. We advise you not to do it.” Britain says the same. You have statements from Jack Shaw. You have statements from the White House explicitly prohibiting this.
Then 9/11 happens and, from the interviews that I did, the same lawyers that gave this legal opinion invited back the same delegations from Washington because the US wanted retribution for the attacks of 9/11 and helped figure out how to create a paradigm in which it was okay to conduct assassination. This now has become completely normalized so all these terms might seem inflammatory. We know it all today now about targeted killing and what happened in Israel in early the 2000s was the seminal legal moment whereby they understood their relationship with Gaza and the West Bank as what they call “an armed conflict short of war.” It was a fictitious legal term to basically say that we are now at war with Palestine, with the Palestinian Territories – and, 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 and it becomes known as targeted killing. Then, just a year later, you have the first drone attack in Yemen that , 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 globalized assassination campaign, which has become publicly and palatably known as the Drone Program.
And so, this is a long way of answering your question but there is crucial nexus of interplay between US and Israel here: legal borrowings that create hegemonic forms of interpretation of the law which then create legal precedents: what they do by violating the law today, becomes legal tomorrow. In the book there are 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 it is done by enough states, but if is done by particular states, like the US and Israel, that have a command of international law, understand international law very intimately and have a outweighed and outsized shape in terms of their interpretation of international law.
So what Israel says and does and what the US says and does, especially if and when they do it together, if NATO forces and especially the UK follow those practices as well, you have a formation of cutting-edge legality or illegality (depending on your view). So, they end up shaping of international law in extremely powerful ways.
The assassination stuff that I just told you about is one. There are more examples throughout the book, one of them is the targeting of dual-use infrastructure and the legal justifications for targeting electricity grids or hospitals. 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, but I would argue that they are the best (or worst) states that do that. Others following the precedent that they are setting is extremely dangerous – what’s stopping our enemies from using the same tactics that we have employed?
Your second question is why focus on war lawyers rather than 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 and the US have 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 commit violence in order to critique it. When you look at international law, rather than starting from the starting point of human rights, from the Geneva Conventions on the rights of civilians – let’s start by looking at how the Military interpret those things, how they understand their rights and obligations on the battlefield. I agree sympathetically with a humanitarian or liberal reading of the laws of war, but that’s not how it takes place on the battle filed.
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 end up with un-useful arguments about rights and responsibilities in war. In the book, by talking to military lawyers I am interested in looking at what is the law doing at the very moment violence takes place. 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? This is critically important because it 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 the book has its sympathies with victims of violence even though it focuses on the militaries who do the violence and not enough on the other side. My current project does that: it looks at the lives of victims of violence, especially those who have been wounded and survived violence and then live long, terrible lives of pain after amputation or after having been shot or suffered a blast or bullet wound. Both things are important, but where I make my contribution is to that critique of violence.
SV: Dr Craig Jones, thank you so much for joining us for this conversation. For me, your book is also an ethnography of power and law and violence so thank you for this remarkable book. You can find and I recommend that both students and others who are interested in war and violence engage with this book.
CJ: Thanks so much for having me.
Dr. Craig Jones is a Lecturer in Political Geography in the School of Geography, Sociology, and Politics at Newcastle University. He researches the geographies of later modern warfare and is especially interested in the legal and medical materialities of war and conflict in the contemporary Middle East. He blogs at www.thewarspace.com and tweets at @thewarspace.
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