Lawfare in Gaza: Legislative Attack


If, therefore, a conclusion can be drawn from military violence it is that . . . there is a lawmaking character inherent in it. — Walter Benjamin

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.

The Technologies of Destruction

Yotam Feldman, in research conducted for the Israeli daily Ha’aretz, has exposed an unprecedented level of involvement of international-law experts during the Gaza attack in advising military personnel on procedures, targets and operational alternatives (see Yotam Feldman & Uri Blau, “Consent and Advise,” Ha’aretz, 5 February 2009).  One of the officers in the international-law unit of the Israeli military put it to Feldman in this way: “our goal was not to fetter the army, but to give it the tools to win in a lawful manner.”

Israeli military spokespeople also seemed to have been trained in explaining the operation with the language of international humanitarian law.  They routinely used such legal terms as “distinction” (between civilians and combatants) and “proportionality” (between civilians killed and military objectives), thus describing targets as “legitimate” and civilian deaths as “unintended” or “collateral.”

It also seemed as if the adjective “humanitarian” has become the default in the context of explaining the various aspects of the attack.  To the familiar “humanitarian corridors” (in space) and “humanitarian ceasefires” (in time), were now added “humanitarian munitions” (of smaller kill-ratios), and a newly designated “minister of humanitarian affairs” operating from the “office for humanitarian co-ordination” in a military base near Tel Aviv.  This figure — Isaac Herzog, Israel’s “Minister of Welfare and Social Services, the Diaspora, Society, and the Fight Against Antisemitism” — was in charge both of “humanitarian coordination” and of “explaining Israel’s reasons and legal position regarding the inflicted damage.”

This appeal to international humanitarian law could easily be dismissed as cynical propaganda.  Most human-rights groups have also correctly and usefully pointed out that IHL was either not properly observed in Gaza in the sense that it was used too permissively, or that legal directives didn’t make it from the military lawyers in their Tel Aviv headquarters to the pilots and the soldiers in the field.  Both reactions, however, demonstrate faith in international law in a way that has become problematic in the age of lawfare, when to enter this arena of the law and talking in its name might itself be the problem.

This can be illustrated by reference to Israel’s experience of its Lebanon campaign of July-August 2006.  Israel realised then that it could not stop rocket-fire from Hizbollah and equivalent militias via the traditional military approach of “counterinsurgency.”  The lesson is reflected in the contemporary Israeli military doctrine (as framed by the Institute for National Security Studies) that includes plans to punish rocket-fire with “a disproportionate strike at the heart of the enemy’s weak spot, in which efforts to hurt launch capability are secondary.”

The chief of northern command, Gadi Eisenkot, explains what this means: “we will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction. . .  This is not a suggestion.  This is a plan that has already been authorised” (see Amos Harel, “IDF Plans to Use Disproportionate Force in Next War,” Ha’aretz, 5 October 2008).  In other words: the breach of international law’s principle of “proportionality” is used here as a military threat.  It is this clear violation of the law that the Israeli military’s international-law experts try to legalise.

The logic of this approach — articulated so often in the language of marketing as “establishing a price tag” or of psychology as “searing the consciousness” of the Palestinians — is to inflict such pain on the inhabitants of Gaza (as to those of Lebanon in 2006) as to force them in turn to exert political leverage on Hamas.  If terrorism is defined (as surely it should be) as organised violence for a political purpose directed at non-combatants and their property, this attack can only be defined as terrorism.

Israel’s argument that the destruction and the death caused in Gaza were the regrettable side-effects of military attempts to hit militant targets — ammunition dumps, “dual-use infrastructure” (i.e. civilian infrastructure), militant command-points — must be seen in this light.  The formal doctrine, its means of implementation, and its consequences — which included the destruction of cities and camps, the overflowing hospitals, the general fear — were conceived as parts of the aims of the attack rather than being its collateral by-products.

The Technologies of Warning

The Israeli military has since the Lebanon war become ever more careful about exposure to international legal action.  The results include the search for ways to implement the strategy of large-scale destruction that can be seen to accord with the principles of international humanitarian law.  For example, the military’s “international law division” and its operational branch have devised tactics that allow its soldiers in the field to apply what are being called “technologies of warning.”

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

A key innovation in this emerging military field of “technologies of warning” has been the so-called “knock on the roof” procedure.  This involves the deployment of “teaser bombs” without explosives, designed to make an impact on the roof of buildings strong enough to scare the inhabitants into escaping their home before it is destroyed completely with an explosive bomb.

The bizarre codename is a twist on the established “knock on the door” method.  This involves the military (usually in the person of an Arabic-speaking air-force operator, and/or by recorded message) telephoning a house to inform the inhabitants that in a few minutes their house will be destroyed.  Sometimes telephones that had been disconnected for months because the bill had not been paid are activated in order to make such a call.  The military claims that it made 250,000 such warning calls during the Gaza attack (a strange number if true, since there are only about 200,000 homes in Gaza).  Virtually all mobile-phone subscribers in Gaza also received a number of SMS messages from the Israeli military on their cellphones: “every person with weapons, ammunition or a hidden tunnel in his house should leave it immediately.”

Many inhabitants of Gaza do not own a telephone or a cellphone; in any case, a different branch of the military frequently disabled the cellphone network or ensured that electricity-cuts left batteries uncharged.  Thus, the military’s legal experts recommended the use of leaflets to enable the expulsion of people from their home prior to the latter’s subsequent destruction.

An officer at the international-law division explained to Yotam Feldman the logic of these warnings: “The people who go into a house despite a warning do not have to be taken into account in terms of injury to civilians, because they are voluntary human shields.  From the legal point of view, [once warned] I do not have to show consideration for them.  In the case of people who return to their home in order to protect it, they are taking part in the fighting.”  By giving residents the choice between death and expulsion, this military interpretation of international humanitarian law shifted people between legal designations — one phone-call turns “non-combatants” into “human shields,” who can thus be defined as “taking direct part in hostilities” and shot as “legitimate targets.”

The Israeli military’s ability to warn people in Gaza about the impending destruction of their homes has also allowed it to define most buildings in Gaza as legitimate targets.  The purported military ability to warn and perform “controlled” and “discriminate” destruction might even have created more devastation than do “traditional” strategies, in part because the manipulative and euphoric rhetoric used to promulgate them induce officers and politicians to authorise their frequent and extended use.  In this case, the “technologies of (mass) warning” contribute both to the proliferation and the retrospective justification of mass destruction.

The Elastic Limits of Law

Whether Israeli field commanders would have sanctioned the level of destruction seen in Gaza if they felt more exposed to international legal action is unclear.  In any case the heart of the problem is not some imagined sterile attack of controlled warning and precise destruction, but rather the dangers that flow from the introduction of the principles of lawfare to Israeli military-legal arsenals.

International humanitarian law is based upon treaty law and customary international law.  The former is fundamentally indeterminate and subject to constant fights over interpretation.  The latter means that military practice can continue to shape the law.  As such the law is pragmatic, its borders are elastic enough to enable diverse interpretations and subsequent expansion.  Far from being opposed to violence, the law can be settled through the application of state violence.  Indeed, the legal tactics sanctioned by military lawyers in Israel’s attack on Gaza were located precisely in this zone of interpretation that exists between obvious violations and possible legality.

International law designates the limit of what international public opinion may consider as “tolerable,” but these limits too can be stretched by military practice.  Practices applied long enough by different states, and supported by the necessary legal opinions, could eventually become law.  Operating at the margin of the law is thus one of the most effective ways to expand it.  According to this “postmodern” legal interpretation, violence legislates.

The former legal adviser to the Israeli military, Daniel Reisner, told Yotam Feldman that his job was about finding “untapped potential in international law” that would allow military actions in the grey zone: “International law develops through its violation. . . an act that is forbidden today becomes permissible if executed by enough countries [. . .] If the same process occurred in private law, the legal speed limit would be 115 kilometers an hour and we would pay income tax of 4 percent.”  For example, when Israel’s policy of targeted assassinations was given official imprimatur at the end of 2000, most governments and international bodies considered it illegal; but, Reisner explained, “eight years later [and one attack on the United States in between] it is in the center of the bounds of legitimacy.”

The elastic nature of the law and the power of military action to extend it in the age of lawfare combine to make the people of Gaza objects of an experiment — in two senses.  First, all sorts of new munitions and warfare techniques are applied and marketed.  Second, certain limits are tested and explored: the limits of the legal, the limits of the ethical, the limits of the tolerable, the limits of what can be done to people in the name of “war on terror.”

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

Rather than moderation or restraint, the violence and destruction of Gaza might be the true face of international law.

I would like to thank Eitan Diamond and Thomas Keenan for their useful comments.

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).  This article is published by Weizman in openDemocracy (25 February 2009) under a Creative Commons licence.