THE WAR LAWYERS – The United States, Israel, and Juridical Warfare, by Craig Jones, Oxford University Press, 2020, £80.00
Indeed, one of my central claims has been that ‘our’ use of law – from policy and national level interpretations of our rights and obligations under international law, to their operationalizations, to rules of engagement – does not generally proffer an alternative to military violence. In fact, the prosecution of US and Israeli warfare especially over the last thirty years suggests that the law is also a medium of violence and that a certain form of judicial violence has played no small part in enabling, legitimizing, and in some cases, even extending military violence. (p. 302)
“Are we clear to engage, yes or no? Come on, make a decision.” In the 2015 film Eye in the Sky, a British colonel (Helen Mirren) asks a military lawyer (Jeff Heffernan), as if it is up to him, to make the ultimate call. If he says no – which is not what the colonel wants to hear – then a righteous kill is sacrificed at the altar of legal technicalities, thus deliberately sanctioning the escape of a terrorist to wreak more terror another day. Of course, when called upon to give such legal advice, it is assumed (often wrongly) that the intelligence is right – that the target is what it is claimed to be. But even so, however accurate aerial strikes may have become, there is no avoiding collateral damage. The question often turns on how much collateral damage is acceptable, and moreover, what if the collateral damage ends up being much higher than predicted.
Talk about pressure to get on board and get with the program! But what of the innocent bystanders and their property? No doubt such thoughts would cross the military lawyer’s mind, but time for reflection can be short, the information incomplete, and a decision must be made. The client (the commanding officer seeking advice in executing orders from above) is demanding legal cover to spread the blame or receive absolution should things go wrong with the targeted kill. All it will take is a bit of moral, ethical, and legal jiu-jitsu – an ends-justify-the-collateral-damage reasoning: there are no legal barriers to killing innocent civilians if they are not the purpose of the attack and there is a semblance of proportionality between their deaths and the anticipated military gain. Institutionalized cooption (we are all part of the same team) and occupational desensitization (the routines of making such decisions on a daily basis removed from the devastation, loss of life, and injuries to civilians) lend comfort to giving the legal advice the client wants to hear – questionable or not.
In THE WAR LAWYERS – The United States, Israel, and Juridical Warfare, Craig Jones, Lecturer in Political Geography at the Newcastle University School of Geography, Politics, and Sociology, sets out to inform us about the role played by military lawyers in giving legal advice before, during, and after military operations, based on the laws of war as interpreted by them and their clients (the states which they serve) and the demands and expectations imposed on them by the commanders (decision-makers) in the military theater. He calls them war lawyers, though when working in the kill chain, he refers to them as kill chain lawyers. At first, I found the term hyperbolic if not affronting to the military lawyers I have worked with, who, if anything, seemed to be cautious in dispensing advice as to what is or is not permissible under the laws of war. Then as I read on, I could see why Jones would refer to war lawyers as kill chain lawyers. As in the Eye in the Sky scenario, the lawyer effectively becomes the master of life or death – being the ultimate authority, as it would appear, to greenlight a kill.
According to Jones, the use of lawyers in operational theaters more or less started during the Vietnam War. It had little to do with prosecuting the likes of Lieutenant William Calley for massacres such as Mỹ Lai (the most publicized, but by no means isolated incident) for which the US military and government readily turned a blind eye, and more to do with limiting civilian casualties from aerial strikes while also providing greater protection to the pilots. Balancing the two required the deft skills of the military lawyers:
A paradigm of warfare in which ‘operations are replaced by elasticity of degrees, negotiations, and balances’ is the paradigm that requires an interpretational mind set and steady legal hands. Strictly operational concerns could be left in the hands of the commanders, but when it came to adjudicating questions about the balancing of military advantage with civilian concerns a new skill-set was required, and military lawyers had it.
The atrocities of Mỹ Lai may have gone unpunished, but the negative publicity it generated did serve as a wake-up call, resulting in the establishment of the first law of war program for the US armed forces. This, according to Jones, would be the springboard from which the military lawyers would launch “a new legal regime that became known as ‘operational law,’” ultimately transforming military lawyers into kill chain lawyers. Jones postulates that operational law allowed US military lawyers to “domesticate” the laws of war to the US military’s own needs – shaping it as both sword and shield to justify what the US military believes to be military necessity:
We may infer that operational law is a legal regime that helps solve military problems with juridical solutions, shifting the ‘military’ into the ‘juridical’ and vice-versa, so much so that these categories no longer hold. Perhaps these categories have never held, but what is interesting about operational law is that it is explicit and unapologetic about the use of law as a marshal technology. Indeed, operational law appears to have been created with this intention and so has more than a passing resemblance to what became known in the twenty first century as ‘lawfare’ (a neologism that recognizes that the law can be used as a potent weapon of war …).
So, for instance, by identifying a target as a war sustaining object, say like Iraq’s electrical grid, the law is used to justify attacking it, even if thousands of civilians will parish not from the attack itself, but from the consequences resulting from the attack. To this end, the kill chain lawyer plays a vital role in greenlighting the acceptable level of collateral damage permitted under the law, thus giving cover to the decision-maker to order the attack. The kill chain lawyer is not asked to find the law, but to interpret it in a way that gives space to the decision-maker in justifying what already has been predetermined as a righteous attack.
Jones rightly thinks that what war lawyers do, the advice they give, and the circumstances under which they give that advice matters not just to how the military conducts itself and the outcomes of its conduct, but “for our very understanding of what it means to kill, injure, and destroy in the twenty-first century.” To this end, he offers three claims, all of which he intrepidly advances convincingly. According to Jones, the laws of war are: a. indeterminate, b. produce violence, and c. when used by war lawyers, the war lawyers are engaged in a law-making enterprise – a “process of boundless interpretations” producing “answers and options for harried decision-makers, but in negotiation with the broader indeterminacy and permissibility of the law.” War lawyers’ “work is crucial to understanding how the laws of war are interpreted, made, and worlded.”
Jones focuses almost exclusively on the use of war lawyers in the US and Israeli militaries, with modest references to the British (the UK was unforthcoming) and other militaries. With aerial operations / strikes being the focal point, it seems reasonable that he would limit his focus to the US and Israel, though his empirical studies would have been more balanced had he also attempted to gather evidence from and draw conclusions on other militaries such as the Russian, Turkish, Saudi Arabian, and others who in recent times have generally availed themselves to pummeling their designated adversaries in heavily populated areas where civilian killings (collateral damage) occur with virtual abandon. Chances are that he would have been met with the same attitude and refusal displayed by the UK, but even so, I seriously doubt that his general observations and conclusions would significantly differ.
The US’s wars in Iraq, Afghanistan, and the war on terror – and the US’s and Israel’s copious use of aerial strikes and targeted killings – make for rich material from which Jones harvests empirical studies. Specific to targeted killings (extra-judicial assassinations, some might say), Jones focuses primarily on the Israeli military’s targeting in Gaza. Here Jones discusses the concept of “armed conflict short of war” as a means of affording combatants the legal permissibility to kill. As an example, he points to the Intifada (first or second does not matter). By Israel calling the events an armed conflict short of war and putting it in the context of war (as opposed to a civil unrest or police operation), Jones opines that Israel seeks greater latitude in avoiding international human rights law or traditional law enforcement regimes, which, unlike the laws of war, prohibit targeted killings save for the most exceptional circumstances. Here too we see the handiwork (or shall we say creative thinking) of military lawyers in meeting the needs of their clients.
Although some may see his focus on the US and Israel as myopic or agenda-driven, it bears highlighting that the US and Israeli militaries were exceptionally forthcoming. Suffice it to say, without such cooperation and transparency, his empirical studies would not have yielded any fruit. What war lawyers do and the consequences of their advice cannot be appreciated in the abstract and without examining their interpretation of the laws of war, humanitarian law, and human rights law, which in turn influences their adoption of commensurate rules of engagement. The US and Israeli militaries’ willingness to be transparent, justifying (rightly or wrongly) their use of weapons for aerial strikes and targeted killings, their self-imposed constraints (modest as they may appear at times), their tolerance for errors and acceptance of innocent casualties, and so on, is laudable. Despite the often-grim picture that emerges from THE WAR LAWYERS, we should be grateful for the cooperation and openness shown by the US and Israeli militaries, making it possible for Jones to conduct impressively extensive research from which, as far as I am able to glean, he conscientiously attempts to draw relatively balanced conclusions.
THE WAR LAWYERS is a dense book with all sorts of military acronyms (as is the norm in military speak) that spin your head. Well-researched and heavy on quotes from his impressive interviews (he has lots of juicy and revealing quotes), it is a useful book for anyone dealing with war crimes cases. It certainly gives you a different perspective when it comes to aerial strikes and targeted killings, what may be involved in selecting the target, what, if any, legal clearances are considered prior to a strike, and how much grey area there is in the laws of war, which, like putty in the kill chain lawyer’s hand, can be shaped to give justification for strikes that foreseeably will cause enormous devastating consequences to innocent civilians, clinically labeled as collateral damage.
Jones provides a fascinating treatment on what US and Israeli military lawyers (and I would venture to say other such lawyers providing similar services in other militaries in like circumstances) do when called to give advice on how the rules of engagement can be shaped to fit what is considered military necessity or in giving advice on targets, whether it is on an individual suspected of being a terrorist or infrastructure considered a war sustaining object. One is left wondering not if, but when a kill chain lawyer may be called to account, for Jones shows us that kill chain lawyers – consciously if not even subconsciously – often twist, stretch, and bend the law into the client’s / commander’s Procrustean bed to enable the desired strike to be “legally” justified.
I highly recommend THE WAR LAWYERS.
Read the introduction to this Book Review Series.