{"id":3983,"date":"2017-03-29T00:00:00","date_gmt":"2017-03-29T06:30:17","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/gunneflo-book-symposium-part-4\/"},"modified":"2020-12-09T13:23:00","modified_gmt":"2020-12-09T12:23:00","slug":"gunneflo-book-symposium-part-4","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/gunneflo-book-symposium-part-4\/","title":{"rendered":"Gunneflo Book Symposium: Part 4"},"content":{"rendered":"

On a clear November morning in 2000, Hussein Abayat, a senior official in the Fatah faction Tanzim, was killed<\/a> by a hellfire anti-tank missile fired from an Israeli helicopter. When the incident was announced later that day, instead of the regular official denial of any direct involvement by Israel in the attack, the Israeli defense minister went on live radio, openly boasting that the IDF did it.<\/p>\n

I was a first year law student and on my way to the university when I heard the announcement on the radio. I knew right there and then that something drastic changed in the legal politics of security in Israel: that was the moment when Israel\u2019s policy of \u2018targeted killing\u2019 (in Hebrew: sikul memukad<\/em>) came out of the shadows of deniability. I also knew, intuitively, that it was somehow connected to a change in US policy. Without US support, I thought, there\u2019s no way that the Israeli defense minister would sound so confident in revealing what was until then a publicly known secret \u2013 that Israel is conducting assassination campaigns against terrorist targets in the occupied territories. This practice was well known by all and well reported by human rights organizations during the 1980s and 1990s but no official representative would confirm it. What\u2019s more \u2013 no legal authority would dream of justifying it. It was \u2013 until that morning \u2013 a well know, well denied \u2013 illegal practice.<\/p>\n

Since that day, and through the process that turned assassination campaigns to \u2018targeted killings\u2019 and to indispensable tools of counterinsurgency policy worldwide, I was asking myself how it happened. How did an illegal practice, one that everyone agreed should remain in the shameful shadows of illicit covert agencies, become in such a short time (in one day, as far as my life was concerned) a legal, open and widely justified practice. I was taunted by this question. How does such immense legal change happen so abruptly? And why do sensible lawyers so easily deny the fact of change, claiming that under the circumstances of \u2018a new type of war\u2019 there\u2019s nothing more natural in it and that it was, in fact \u2018always legal\u2019 under International Humanitarian Law (IHL). Was the change strictly political? As much as I thought about it, the question itself became more confusing. Even in my book<\/a>, which deals with the dynamic legal politics of torture, detention, and other emergency and war practices, the politics of the sudden and overwhelming rise of targeted killing remained outside of grasp.<\/p>\n

Not so much anymore. Markus Gunneflo’s book, Targeted Killing: A Legal and Political History<\/em><\/a>, helps unravel and clarify the chilling history of normalization of the shadowy practice of extrajudicial killing into the everyday life of public law. In a sweeping and thrilling monograph Gunneflo uses historical sources and analysis, sophisticated theoretical contextualization and legal debate to show that the practices we call today \u2018targeted killing\u2019 emerged through extensive legal work, that they were shaped by a variety of actors (lawyers, judges, executives, advisors, academics, military strategists and coders, and more), and that their emergence onto the law was a much longer process than we tend to think. Furthermore, Gunneflo finally brings home explicitly the much overdue story about the intimate connection between the evolution of targeted killing in the US and in Israel. In both countries, Gunneflo shows, targeted killing was normalized not despite, or in opposition to law. In and between both jurisdictions, targeted killing emerged as a typical case of legal compulsion.<\/p>\n

The history that Gunneflo tells is mesmerizing and painfully accurate. In the following note I\u2019d like to push the theoretical analysis a bit further on what I see as the book\u2019s biggest contribution \u2013 using the contemporary notion of law\u2019s compulsion to bear not only on the legal politics of targeted killing but also on Weimar era ideas that this politics still echoes.<\/p>\n

1.<\/strong><\/p>\n

As the book moves from the Israeli history of targeted killing to that of the US and to the current legal context in which debates about its justification predict its future, it elegantly contextualizes the thick description within thick theory.<\/p>\n

The Israeli case study (Chapter 2) uses Walter Benjamin\u2019s distinction between law-making and law-preserving violence to flesh out the erasure of the distinction in the 2006 Israel Supreme Court decision<\/a> which legalized targeted killing (p 59). The Israeli court was exercising a law making power by creating its own jurisdiction over the category of \u2018civilians who constitute unlawful combatants\u2019 \u2013 and by that also a law-preserving power: maintaining a way for Israeli preservation of monopoly over violence in the conflict with the Palestinians \u2013 a right to continually exercise the active self-defense measure of targeted killing. Though the case is illustrative, it is not new: since Israel is constantly, and from its very beginning, under a legally declared state of emergency \u2013 the Israel Supreme Court developed its political significance in the Israeli constitutional order as the legitimate superior legal decider by managing the constant threats and possibilities that the never ending state of emergency brought forth. The Court is complicit because the continuous emergency left space for law-making violence to be the mode of constant preservation. In a constant state of emergency, as soon as a jurisdiction is created by an act of law-making violence (military rule, the law of occupation), it is already under attack and in need of preservation.<\/p>\n

Interestingly, Benjamin is brought to the Israeli story also for his personal biography. In a 1931 letter to his Zionist friend in Palestine, Gershom Scholem, he seems to contrast political options in Europe and in Palestine. Arab-Jewish cooperation in Palestine, he suggests, after hearing about Scholem\u2019s participation in the Arab-Jewish group \u2018Brit Shalom\u2019, shows that there are other opportunities for \u2018unambiguously differentiating yourself from the bourgeoisie there [in Palestine] than there are here [in Europe]\u2019 (quoted on p 33). In that Benjamin might have been overly optimistic. As the history of targeted killing that Gunneflo uncovers in the Israeli story clearly shows \u2013 such opportunities were quite easily erased by the emergence and institutionalization of law-making and law-preserving violence that were as endemic to the Jewish nation-building experience as they were in Europe.<\/p>\n

2.<\/strong><\/p>\n

The American case study (Chapter 3) starts with the story of the US citizen Anwar al-Awalaki who was targeted and killed<\/a> in Yemen in 2011 less than a year after a US federal court dismissed<\/a> his father\u2019s plea for his son\u2019s life for lack of jurisdiction. With the court\u2019s lethal non-justiciability in mind, the chapter moves to analyze a number of Carl Schmitt\u2019s texts on domestic and international law and politics, culminating in a quote that indicates that Schmitt himself was aware of the compulsion of legality: \u2018Even the legality that is challenged in the modern state is stronger than any other type of right. That is a manifestation of the decisionistic power of the state and its transformation of right into law. . . legality is the irresistible functional mode of every modern state army\u2019 (108).<\/p>\n

From here, the move back to the American war on terror is telling. In Gunneflo’s story, this war was first declared in April 1984 by means of Ronald Regan\u2019s National Security Directive No. 138<\/a> that together with George Schultz\u2019 address from the same day constituted a declaration of war against \u2018an unspecified foe to be fought at an unknown place and time with weapons yet to be chosen’ (109). But while the Schultzian agenda of the 1980s \u2013 which projected an image of a globalized Hobbesian world mixed with a Schmittian \u2018threat to our way of life\u2019 \u2013 was understood at the time as anomalous and failed, Gunneflo shows how it was normalized and even radicalized in the post 9\/11 era both in US domestic and in international law.<\/p>\n

3.<\/strong><\/p>\n

Although Weimar era theorists prove useful for the analysis, in order to truly understand the meaning of the move from the failed political agenda of the 1980s (promoting a global war against all enemies to \u2018our way of life\u2019) to its successful legal realization in post 9\/11 world order, Gunneflo makes use of contemporary theorists of law and legality. In the writing of Ernst-Wolfgang B\u00f6ckenf\u00f6rde and David Dyzenhaus, Schmitt\u2019s dualistic theory of extra constitutional exception is domesticated within German constitutional law and common law respectively, and in legalism more broadly.<\/p>\n

In a rule of law state, Dyzenhaus tells us, law has a particularly strong pull over officials\u2019 decision making. If they are to do their job as public officials of a rule of law state, they cannot \u2018act outside the law\u2019. When they feel the urge to do so, as sometimes happens in situations of pressure and crisis, they will tend to veil their illegality under a \u2018thin\u2019 layer of legality (233). It is not \u2018the exception\u2019 that makes them corrupt law. It is the compulsion of law itself. It is not pure politics that overcomes law. It is the politics of law itself.<\/p>\n

In a similar vein, B\u00f6ckenf\u00f6rde unpacks Schmitt\u2019s dualism by showing that the constitution is a genuinely political law. \u2018It deals with politics not only directly and incidentally but immediately addresses the existence, form and action of the political unity.\u2019 (236) The constitution\u2019s telos \u2013 B\u00f6ckenf\u00f6rde claims \u2013 is to facilitate, preserve and support the state as a political unity, and to deal with politics in the immediate sense of addressing the existence, form and action of the political unity\u2019 (ibid.). In that, Gunneflo rightly observes, it is a very different constitution than the one criticized by Schmitt in his 1922 Political Theology<\/em> as \u2018a mechanism that has become torpid by repetition\u2019 (ibid.)<\/p>\n

In both Dyzenhaus’ legalism and B\u00f6ckenf\u00f6rde\u2019s constitutionalism the political project of law is an urgent matter, as urgent and crucial as Schmitt’s political decision has ever been. But in a rule of law state this urgency is never \u2018outside the law\u2019, it is internal to the politics of law \u2013 the politics of making law (or the constitution in B\u00f6ckenf\u00f6rde\u2019s case) a reality in every moment of national life.<\/p>\n

This is indeed well placed as the culmination of the theoretical analysis of the historical move to normalize \u2018targeted killing\u2019. In a rule of law state, law triggers a constant compulsion to realize official acts as legal. But the compulsion has more than one trajectory, or in Dyzenhaus\u2019 terms, more than one cycle. Other cycles of legality open up when institutions cooperate in creating \u2018rule of law furniture\u2019, institutional controls on public authorities that ensure that their conduct is compatible with a substantive principle of legality. While Dyzenhaus himself estimated in 2006 that targeted killing is, like torture, not only illegal but \u2018unlegalizable\u2019 \u2013 the reality of 2017 illustrates the urgency of the imperative for international law to develop institutional capabilities to constrain the compulsion to create, by legal veneers, zones of vulnerability to arbitrary killing.<\/p>\n

 <\/p>\n

Karin Loevy is the manager of the JSD Program at NYU School of Law and a scholar at the Institute for International Law and Justice (IILJ). Her book, Emergencies in Public Law: The Legal Politics of Containment<\/a>, was published by Cambridge University Press in 2016. An overview of her new project on history of international law in the Middle East (1915-1922)<\/a>, was recently published in the Israel Law Review and won the journal’s prize for best unsolicited article for 2016.<\/em><\/p>\n

 <\/p>\n

Cite as: Karin Loevy, “Gunneflo Book Symposium (4) – Law’s Compulsion or Coming out of the Shadows”, V\u00f6lkerrechtsblog<\/em>, 29 March 2017, doi: 10.17176\/20170411-114951<\/a>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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