Gunneflo Book Symposium: Part 1
Itamar Mann: Israel and the forever war
On 4 January 2017, a military court in Jaffa convicted Israeli soldier Elor Azaria of manslaughter. The case has set Israeli public debate ablaze for almost a year now, and was widely reported abroad. As a video released by the human rights group Betselem revealed, Abd Al Fatah A-Sharif was wounded and lying, face down, when Azaria approached and shot a bullet through his head. A-Sharif had stabbed an Israeli soldier deployed in the Palestinian City of Hebron. The military court found that Azaria executed him when he was no longer a threat.
Since his arrest, the charged soldier generated an ever-more-powerful surge of support among Jewish Israelis. Many now refer to him, collectively, as ‘our son’. Though Azaria was tried and convicted, this familial sentiment is arguably reflected by the exceptionally lenient sentence: 18 months for an offense with a maximal penalty of 20 years. Several Israeli politicians asked President Rubi Rivlin to pardon Azaria. Azaria’s conviction is now being appealed.
Markus Gunneflo’s Targeted Killing: A Legal and Political History is a masterful work, which I believe can help understand Azaria’s case (as Azaria’s case can help contextualize the book).
By weaving relatively unknown legal debates from previous decades with illuminating theoretical insights, Gunneflo makes an important contribution to a topic that has preoccupied countless commentators: drone warfare. He offers what Michel Foucault called a history of the present. The study seeks to answer the very basic question: how did we get here? As I’ve said elsewhere, a new law of global killing has recently emerged.
Focusing on Israeli and US legal histories, Gunneflo makes a compelling case: the roots of the legal framework allowing the targeting of individuals abroad are found in the Israeli occupation of the West Bank and Gaza, and in the covert activities of US intelligence agencies during the Cold War. This may not be surprising. However, the devil is in the details. For example, Gunneflo’s invocation of assassination operations that Jewish paramilitary organizations performed around the founding of Israel, and their relationship to contemporary practices of targeted killing, is not only convincing; it’s brilliantly original. I would like to develop that theme a bit further.
It is this layer of Gunneflo’s story that suggests a certain relationship between the law of targeted killing and the Azaria case. The two instances of killing may seem entirely unrelated. Azaria’s is a case of wanton and arbitrary violence against a debilitated man. ‘Targeting’ is carried out through legal process and is culturally imagined as a gut-wrenching ethical choice (as illustrated, for example, by Gavin Hood’s Eye in the Sky). But Gunneflo helps us understand a structural affinity between these two ways of taking a life.
Some of us may be critical of Jewish Israeli society, in which a soldier like Azaria can garner such enthusiastic support. For this critique to be fair, we must understand such support was made possible by the normalization and legalization of seemingly cleaner forms of death. Like the book’s account of Israel’s law of targeting, the underlying point is relevant beyond Israeli law and politics. It reveals what is currently at stake in what has been called the ‘forever war’.
During the British Mandate, Jewish paramilitary groups engaged in political assassinations for what liberal legalism generally understands as three distinct objectives. One was collective defense from threats the community faced; another was weakening or extinguishing the political opponents of this community (especially among non-Jewish Arabs); and a third was as a measure of justice, which often took the form of mob justice: revenge operations against those who had harmed members of the community. When Israelis today think of Azaria as our common son, they see his act as a realization of all three objectives. Liberal legalism aims to draw clear lines delimiting each to its own sphere. But as Walter Benjamin explained in his essay Critique of Violence, police operations often make this limitation difficult.
By providing his adroit reading of this essay, Gunneflo brings Benjamin to bear on the practice of targeted killing. Among other episodes, Gunneflo shows how Benjamin’s essay illuminates Jewish paramilitary operations in 1940s Palestine: constitutive violence is Benjamin’s label for a form of violence in which these three categories are indistinguishable. Such is the violence of a collective liberation movement, such as Jewish paramilitary groups, seeking to establish a state.
Only within a legalized context is the unity between these components divided. Once the rule of law is established, we are expected to abandon forms of killing that are intended to help us compete against political adversaries. Violence is allocated to the realms of defense (at war) and justice (in the penal system). Now state violence has a law-preserving role: it no longer seeks to constitute a new legal order or to emerge out of anarchy. It is simply intended to keep the legal order intact.
At the root of the contemporary practice of targeted killing, Gunneflo suggests, is a stillborn rule of law at an Israeli moment of founding: the three elements were never in fact divided. This is reflected, eg, in the way that the 1948 War gave way to a perpetual state of emergency. Indeed, several legal instruments carried forward this condition of conflict ever since. Particularly important are the Defense (Emergency) Regulations of 1945, which British Mandate authorities introduced to militarize police powers. When Israel was established, it embraced the British state of emergency through its own emergency legislation, which was in effect ever since.
Starting from 1967, the British colonial regulations from 1945 were deployed as the basis for controlling the population of the Occupied Territories. In these territories in particular, a perpetual state of emergency became crucial in a constant intermingling between defense, justice, and political advantage. Gunneflo illustrates this effectively by appealing to a case from 1969, Military Prosecutor v Omar Mahmud Kassem. US lawyers are accustomed to thinking that the important precedent for detaining those suspected of terrorism outside of a Prisoner of War status is the WWII-era Ex Parte v Quirin. But the Kassem case may be just as important.
The Military Court had to pronounce upon its own jurisdiction to try members of the Popular Front for the Liberation of Palestine (PFLP). The conclusion, as quoted in the book (p 69) reads:
International law is not designed to protect and grant rights to saboteurs and criminals. The defendants have no right except to stand trial in court and be tried in accordance with the law and with the facts established by the evidence, in proceedings consonant with the requirements of ethics and International Law… We therefore reject the plea of the defendants as to their right to be treated as prisoners of war and hold that we are competent to hear the case in accordance with the charge-sheet.
As Gunneflo explains, ‘[t]he response was that the law of armed conflict offered no protection for them: “they are to be regarded as combatants not protected by the International Law dealing with prisoners of war, and the occupying power may consider them criminals for all purposes.”’ But remember that within the jurisdiction of the Military Court system set in the Occupied Territories, they are not considered criminals within the ordinary, civilian sense. They are tried under the 1945 British emergency ordinance, which – as explained above – is a form of militarized police. This opens a space in which constitutive and law-preserving violence are intermixed. No clear distinction remains between violence aimed to preserve law, and violence aimed to establish a new political system.
Targeted killing, it is explained, takes the same reasoning to its logical conclusion. Advocate General Yahav spelled this out avant-la-lettre, in a 1992 interview that anticipated much of the language we have heard in the US in the last decade and a half. According to him, ‘international law views armed terrorists’ as ‘illegal combatants’ who can be ‘shot on the spot’; The practice of treating them as mere criminals instead ‘had been taken “as a practice of internal state policy,” not a requirement of international law’ (p 69).
The well-known moment in which the practice of targeted killing begins in the West Bank is the Second Intifada (2000-2005). Those who have followed the targeting debate will be familiar with Aharon Barak’s legal opinion which set a framework for legalized killing from above of suspected terrorists, based both on international and domestic law. The person who introduced the crucial legal justification to the Israeli military is Daniel Reisner, who’s work Gunneflo spends some time analyzing. Readers might be interested in a fascinating interview Reisner gave to the Lawfare podcast back in 2015. In this interview, Reisner has no compunctions about taking the credit that the interviewer Benjamin Wittes gives him. To paraphrase, Wittes says something like this: ‘it is you, then an Israeli military lawyer, who deserves credit for the most fundamental tenets of Obama’s drone warfare’.
Familiar as the latter materials may be, by going further back to the state’s founding and to the early occupation years, Gunneflo sheds on them a fresh and critical light. He shows not only that the legal reasoning behind the most crucial aspect of what has been called a ‘clean and endless war’ have been set prior to the actual targeting of individuals from above. Through his reading of Benjamin, he also demonstrates the political conditions that have made such attacks possible, those of an indistinction between law-making and law-preserving violence:
Israeli targeted killing has emerged in the context of a legal regime that institutionalises this indistinction and, as we have seen, given great leeway to the occupying authorities to both decide and implement forceful means to the end of ensuring public order and safety.
In the West Bank and Gaza, Israeli state violence has been used for the purposes of war, criminal justice, and purely political purposes – expanding settlements and gradual annexation – with no real distinction between the three. This has been done as often by a construction and interpretation of law as it has been done through its violation.
To use another example, the protagonists of the much-discussed Israeli documentary The Gatekeepers defend the use of the means they employ to protect Israel’s security – means that have sometimes included torture – and lay blame on political leaders who have not identified the proper ends: a peace agreement with the Palestinians based on compromise. But just like in the case of targeted killings, in the case of torture, too, the means cannot be separated from the ends; only because such means were provided ostensibly to preserve law, was founding a new political order possible. Today, with a possible formal annexation of parts of the West Bank around the corner, it is becoming abundantly clear that the result is a political system of apartheid.
In the heated debate around the Azaria case, two critical are particularly relevant. For some, Azaria was simply another example of the way in which the dominant class of Jews of European descent (Ashkenazim) are happy to scapegoat Jews of Middle Eastern and Arab descent (Mizrahim). According to this view, while the privileged class of Ashkenazi Israelis get to do their killing from the safety of state-of-the-art fighter jets, Mizrahi soldiers are more often exposed to dirty realities of day-to-day occupation in which arbitrary violence is a daily occurrence. Cases in which similar charges against Ashkenazi soldiers were closed have been cited (rightfully or not).
A related critique is that it is impossible to provide Azaria with a fair trial, because his is a case of bad luck. Azaria was charged simply because he was unlucky enough to be caught on camera, while politicians have explicitly given a green light to loosen up regulations on firing during the so-called ‘Intifada of Knives’. Many other soldiers, it has been said, were guilty of similar actions but were not filmed and therefore it was easy to ignore their cases.
What the two critiques have in common is an attempt to shift the focus around the Azaria case. Criminal trials systematically over-emphasize personal and individual choices. A different understanding of the Azaria case would make the structural conditions that made it possible much more important. The first structural account above, which has been voiced by critics on the right and on the left, points to a colonial and racialized relationship between groups of Jews, with a consequent division of labor between them: the dirtier the job, the darker-skinned will be the person who will carry it out. The second structural account may focus on the role of the media, its seeming omnipresence, and its actual unequal distribution across the terrain of the occupied area.
These two structural accounts are valuable, each in their own way. While one should by no means ignore personal responsibility in the Azaria story, this aspect by no means tells the entire story of what happened. By focusing on it, one might lose site of the larger picture of what is going on in the one-state reality of Israel-Palestine. I believe Gunneflo’s work suggests a third structural account, one that should be of particular relevance to lawyers. What Gunneflo shows is that when the separation between constitutive and law-preserving violence is obliterated by a legal system, it may become difficult for an entire society to distinguish between war, justice, and purely political ends. Azaria, the Mizrahi soldier, is in some way not so different from paramilitaries during the founding era, in large part Ashkenazis, who carried out operations of revenge.
These operations, one should recall, have continued well into Israel’s statehood, eg the infamous Qibya massacre. And the latter are the progenitors of the smartest targeting technologies; those that made it possible for Reisner and Barak to employ a legal framework between war and criminal enforcement; those that made it possible for the Obama administration to carry out a killing campaign with global reach. Trump’s foreign policy is for now a matter of wild guessing. But the support we saw during his campaign for ‘dirty’ forms of violence such as torture ‘because they deserve it’, was also, perhaps, made possible by the evisceration of lines between war and criminal justice. George W. Bush began the ‘forever war’ driven by revenge, and it seems that drive has never died out since.
Indeed, the important aspect of Gunneflo’s genealogy of Israel’s targeting practice that is somewhat underemphasized is that of justice as a measure of revenge. Paramilitaries in the founding era openly admitted this. In the public debate about Azaria, his supporters too often do not shy away from a vocabulary of revenge. Justice Barak’s jurisprudence, on the other hand, completely denied the impulse of revenge in its construction of a space between war and criminal enforcement. But Israeli news media revealed a deeper truth: targeted individuals were often responsible for multiple attacks against Israelis, and the drive to kill them was also a drive to realize a certain kind of justice.
This aspect of targeted killing has a central role if the Israeli example indeed has the global importance it is given here. Throughout the Israeli history of targeted killing, the impulse of revenge functioned as an urge to pick a scab that had closed the Pandora’s box of the nation’s founding moment. Every time the wound underneath was exposed, constitutive violence erupted to the surface, a gush of fresh blood.
This morning (6 March 2017), news has arrived that Israeli forces have killed Basil Al-Araj in a raid of his home in Ramallah. Previously, the Israeli police accused Al-Araj of being the “head of a terrorist cell that planned attacks against Israelis and security forces.” In a statement by the PFLP, Al-Araj is described as a “freedom fighter, intellectual, and theorist,” who was “one of the most prominent young Palestinian strugglers” to resist the Israeli occupation. According to all accounts, Al-Araj met Israeli soldiers with armed resistance.
This event cannot be understood simply as a police arrest operation that developed into a confrontation. It took place in the heart of the political system that targeted killings helped establish: in “Area A”, supposedly controlled by a government, which nevertheless has no state. It is, therefore, yet another episode in the longue durée of “targeted killing” – a chronicle of permeant control by militarized police.
Itamar Mann is a Senior Lecturer at the University of Haifa Faculty of Law, where his main teaching and research are in international law and political theory. His book, Humanity at Sea: Maritime Migration and the Foundations of International Law, was published by Cambridge University Press in 2016.
 The Hebrew term for this, Pe’ulot Tagmul invokes tagmul or retribution rather than nekama or revenge.
Cite as: Itamar Mann, “Gunneflo Book Symposium (1) – Israel and the Forever War”, Völkerrechtsblog, 8 March 2017, doi: 10.17176/20170322-162435.