The law of armed conflict is often imagined as a moderating force, limiting the violence that can be inflicted on the battlefield by banning certain practices, prohibiting certain targets and outlawing certain weapons. Although the law allows civilians to be killed in certain circumstances, it states belligerents must differentiate between combatants and noncombatants when executing an attack and ensure that the incidental harm to civilians is proportionate to the anticipated military gains. According to the prevailing view, the law can help to minimise the destructiveness of armed conflict by preventing its worst excesses. Craig Jones challenges this view in his book The War Lawyers: The United States, Israel, and Juridical Warfare, which traces how the law is entangled with the violence it is supposed to regulate. Rather than viewing war and law as two separate and diametrically opposed entities, Jones explains how they ‘co-constitute and animate each other in all kinds of ways’ (p.1). He documents how the law helps to channel the violence inflicted on the battlefield, assisting with everything from the legal immunities granted to soldiers stationed at overseas bases through to the targets selected for destruction. The book focuses particular attention on the military lawyers involved with aerial operations, showing how these lawyers ‘do not stand outside or above the technical targeting matters on which they advise [but…] are a constitutive and entangled part of the targeting apparatus’ (p.1). As such, this book makes an invaluable contribution to debates about the relationship between war and law.
”[T]his book makes an invaluable contribution to debates about the relationship between war and law”
The book develops the concept of ‘juridical warfare’ to illustrate how ‘war has become more law-full— full of law— in the sense that it is increasingly conducted and understood in relation to law, legal discourse, and legal debates’ (p.37). Jones is not suggesting that the law is simply a tool of legitimation that can be used to render certain actions permissible, no matter how they have been conducted or what consequences they have had. Instead, he is interested in how the law has been used to help channel the violence inflicted on the battlefield, ensuring that militaries are able to kill the people they want to kill without necessarily violating any rules. As Anand Gopal (2020) argued in a recent article about the assault on Raqqa, the United States ‘razed an entire city, killing thousands in the process, without committing a single obvious war crime’. At the same time, Jones is interested in how our reliance on the law to assess the legitimacy of military operations has worked to displace other ways of assessing the harms inflicted during war, particularly when it comes to the ‘slow violence’ that is often factored into military plans but actively excluded from legal calculations (pp.119-120).
This book provides an impressive historical overview of the increasing entanglement between war and law, drawing on interviews with around 50 military lawyers and detailed archival analysis. Jones explains that the juridification of late modern warfare did not happen overnight but something that was ‘forged in the crucibles of several wars’ (p.35). Vietnam is identified as a decisive historical moment, as the conflict helped create the conditions for greater legal involvement. Although military lawyers were not involved in combat operations, they were responsible for dealing with the grisly aftermath, issuing condolence payments to the victims (p.53-58) and prosecuting soldiers accused of war crimes (pp.78-87). In the aftermath of Vietnam, the Department of Defense established its Law of War Program to ensure that soldiers understood the rules governing the use of force. Jones argues that operationalising international law was not a simple process of translating it into a more accessible format, but actively re-configuring its content (pp.89-90). As well as expanding the role of military lawyers and involving them with combat operations, Jones shows how this process helped to establish a ‘zone of permissible conduct’ (pp.98-99). During Operation Desert Storm, lawyers were involved with drawing up a list of potential targets (pp.141-143). When Operation Enduring Freedom in Afghanistan rolled around, military lawyers had been woven into the targeting process, providing time-sensitive legal advice to commanders at multiple points along the way (p.200).
”His meticulous analysis of these historical trends enables Jones to draw out three important theoretical points”
His meticulous analysis of these historical trends enables Jones to draw out three important theoretical points. Firstly, he argues that the law is indeterminate, whilst the battlefield is juridically complex, so commanders have become increasingly reliant upon military lawyers to navigate this complexity (p.282). Secondly, he argues that the law produces violence because it establishes what can be targeted at the very moment it determines that certain things cannot be struck (p.283). Finally, he argues that military lawyers do not simply apply the law but actively create it every time they render their legal advice. The indeterminacy that is inherent within the law means that these interpretations helped to establish new legal precedents. As Colonel Daniel Reisner – the former Head of the International Law Branch of the Israeli Defense Forces (IDF) – explains, ‘if you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries’ (quoted on p.1). Recent attacks on Gaza provide a striking example of this. Contrary to those who have argued that these assaults were marked by an extensive suspension or abandonment of the law, Jones argues that they were realised through international law (p.172). At the same time, he argues that IDF lawyers introduced new legal constructs on targeted killing and violence short of war to legalise their attacks on Gaza. Although these constructs were contested at the time, other states – including the United States and the United Kingdom – have adopted them to legitimise their own targeted killings (pp.193-195).
”The War Lawyers is an impressive piece of work.”
The War Lawyers is an impressive piece of work. Jones has produced a magnificent book, which is not only an absolute pleasure to read but makes an invaluable contribution to debates about military law. Although previous studies have pointed to the ways in which the law might enable rather than restrain the violence inflicted on the battlefield, nobody has been able to document this relationship in such a thorough and incisive manner. Jones provides us with a book that is not only rich with empirical detail but equips us with the theoretical tools needed to interrogate how contemporary practices of violence are legitimised despite the enormous death and destruction left in their wake. There are some areas that will need to be developed. Jones is relatively silent about the gendered and racialised assumptions that animate the laws of armed conflict, rendering certain populations so much more killable – or injurable – than others (see Kinsella, 2011). Nevertheless, this book carefully unpacks idealised images about the relationship between the law and war to document how the ‘supposed humanization of the laws of war has become part of the problem’ (p307). Not just because the law is replete with a multitude of blind spots and biases, but because it forms part of the ‘necropolitical bureaucracy’ used to calibrate the violence inflicted in war (p.241). As such, the book succeeds in its endeavour to provide a much-needed critical perspective on how the law works to enable and enhance the destructives of war.
Anand Gopal (2020) “America’s war on Syrian civilians”. Available online at: https://www.newyorker.com/magazine/2020/12/21/americas-war-on-syrian-civilians (accessed 8 February 2021).
Craig Jones (2020) The War Lawyers: The United States, Israel, and the Juridical Warfare. Oxford: Oxford University Press.
Helen Kinsella (2011) The Image Before the Weapon: A Critical History of the Distinction between Combatant and Civilians. Ithaca: Cornell University Press.