The Limitations and Elasticity of International Law: Lawfare, and the Strategic Proliferation of Violence

International law is currently the most dominant framework for thinking about conflict and war. Despite its positive influences, many thinkers have argued about its limitations and that instead of restricting war, it actually has many war generative functions, which are often overlooked. 

Many rules and institutions exist which are responsible for the purchase and sale of weapons, managing armed forces, recruiting soldiers, making war profitable, and encouraging military-related technological advancement. (See "Of War and Law" by David Kennedy  for more info.) The military also uses international law to legitimize killing, and for assurances that their (often morally ambiguous) actions are legally permissible. In this way, international law creates the institutional pathways in which war is created. Thus, war is now framed as primarily a legal institution and international law is key in its making. It has become the ethical vocabulary under which contemporary military bureaucracies operate. 

"The provocative new book, Of War and Law . . . 
[is] a cautionary tale of what
can go wrong when military leaders and outside
 observers use legal language as a substitute
for independent ethical thinking."

Interpretations of international law have a big impact on the way that players may strategize to achieve their objectives. How the law is interpreted, and how this interpretation is going to be perceived by the international community will have considerable implications on the perceived legitimacy of aggressors.  Legal experts, who are often employed to work along side the military, can manipulate it and find loopholes that test the elasticity of international law. Maneuvering the law in this way requires the creative use of “legal pluralism”. Essentially, the question isn’t whose interpretation is right, but rather who has the power or influence to make it stick. This strategic use of international law has thus weaponized it to serve a primary function in war-making. Charles Dunlap actually coined the term “lawfare” to describe this phenomenon.

For instance, the US is using international law to excuse their targeted killing practices, which sets dangerous precedents for future conflicts. By using lawfare to deconstruct the battlefield, the legal and normative borders that used to contain war are eliminated, thus liberating the use of violence in the process. (See Craig Jones for extra reading.) 

In a similar vein, Eyal Weizman argues that our reliance on international law has led to the proliferation of violence rather than its containment during the Israeli-Gaza conflict. 

International Humanitarian Law (IHL) experts were closely involved as advisors to Israeli military personnel in their attacks on Gaza from December 2008 to January 2009.

The conflict resulted in a disproportionate amount of casualties for Palestine, and enormous damage to civilian property and infrastructure. As a result an investigation was launched as it was presumed that these attacks were intentional and pre-meditated. Israel claimed that their attacks were executed in “self-defense”, and tried to convince the international community that their military operations were within the scope of IHL. Furthermore, they blamed Hamas for using human shields, and other indiscriminate tactics.

By defending their actions with claims of “proportionality”, Israel made attempts to excuse their actions. Furthermore, embedding the adjective “humanitarian” in their vocabulary really sticks out as a constant reminder of the apparent “legality” behind their attacks. Despite abuses such as killing women and children, refusing to help the wounded, and using air-burst white phosphorus in densely populated areas, the courts have done nothing about it.

The Dahiya doctrine, which refers to intended collateral damage inflicted on urban cities by Isreal in its past conflict with Lebanon, can be related to the attacks on Gaza. By its logic, the violence inflicted on civilians in urban areas was meant to exert political pressure on Hamas and influence the political process. The effect that this destruction would have was the very reason that these targets were hit in the first place. They were not just collateral damage.

As a matter of fact, former Prime Minister Ehud Olmert was quoted saying that ‘Our response will be disproportionate. We won’t go back to the rules that the terrorist organizations tried to dictate’. This kind of rhetoric is also a testament to the use of IHL's legal language, which is still central to dialogue of war even if a state may be in violation of its rules. 

Conversely, restraint, which is a promise of IHL is always going to present the potential for escalation. In Gaza’s case, Israel claimed it could have done much worse than it did and that it exercised restraint, thus justifying the destruction it had already caused.

There is also a correlation between issuing warnings and the proliferation of violence. Warnings were used to legitimize attacks on targets whose destruction would otherwise be viewed as illegal. These warning systems also resulted in an increased frequency of attacks since they were more readily authorized by Israeli commanders.

The change in Israeli’s risk management policies also played a big part in the increase of civilian casualties in Gaza, as their military code of ethics prefers and allows the killing of civilians over Israeli soldiers. The ratio of dead Israeli soldiers to Palestinians was 1 Israeli soldier for every 100 Palestinians in the 2008-09 conflict, in contrast to 1 Israeli soldier to 6 Palestinians during the first intifada of 1987-91.

(See Human Rights Lawyer Noura Erekat speak about the conflict in more detail): 

By operating at the margin of the law, Israeli’s military lawyers were expanding its borders. If enough players operate under similar principles within these gray areas, their conduct can set a precedent and become customary law, and thus perpetuate violence through rewriting of what actions are permissible or not. In this case, Gaza was like a laboratory, where limits of international law and ethics were tested and shifted as Israel’s regime of control strategically played with just how much they could get away with.

What is particularly interesting is how experts assessed Israel's adherence to the Laws of Armed Conflict (LOAC) in a recent report from 2014 sponsored by the Jewish Institute for National Security Affairs.

Not surprisingly they cast Israel in a positive light while demonizing Hamas and Palestinian tactics. The report claims that the IDF used an unusual amount of restraint in their attacks and praised them for their innovative use of methods and tactics such as advanced warnings (as discussed above), which apparently helped reduce civilian casualties and exceeded the requirements of LOAC.

The report also concluded that Hamas actually exploited IDF’s respect for LOAC and its own civilian population. The report claims that Hamas did this in order to manipulate the perception of the international community by presenting their own civilian casualties as unlawful actions by the IDF.

As we can see, this account differs significantly from Weizman’s, and it goes to show that the question isn’t whose actions or whose interpretation of the law is right, but rather who has the power to force their interpretations of the law to become authoritative, and who can successfully manipulate the law to appear to be on their side.

This sort of manipulation calls for many ethical considerations about the legitimacy of international law itself and whether it really serves to create a more just, impartial, and fair world. 

Author: Marianna Stetsiv
_______________________________________________________________

Additional videos:

Israel Gaza Conflict: "Most of our shooting was random...we didn't think about civilian casualties"

Is International Law Effective? The Case of Russia and Ukraine.