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Your two posts on the Wikileaks video provides some of the best context and questions I have seen in this debate.

The issue of why the recourse to international law is both insufficient and frustrating connects with similar concerns re the continued Israeli occupation of Palestinian territories.

Commentators critical of the occupation speak of "lawfare" to highlight how both domestic and international law is used as part of the governing apparatus. The law is anything but a restraint on morally reprehensible action. For more on lawfare in this context, see my post from last year at http://www.david-campbell.org/2009/04/08/gaza-terror-mercy-law/

Thanks for the kind words David.

I hadn't come across the term lawfare before. I really like how it captures how law is--a la Clausewitz and Foucault--war by other means.

What I've found interesting in looking at the legal regimes regulating assassination and targeted killing is that the permissive element within the law is not one defined by the invocation of the exception (i.e., in exceptional circumstances one may break the rule).

Rather, international humanitarian law and human rights law in these areas are systematically ambivalent about what might be permissible. Prescriptions limit themselves to the preliminary procedures that need to be followed. In other words, as you know, there is a wider scope for forms of legal direct state violence than is generally acknowledged--let alone the sorts of structurally violent legal parlour tricks taking place in Israel-Palestine in order to acquire territory (readers may want to check out Eyal Weizman's excellent Hollow Ground).

Even though one knows better, it's still been incredibly disconcerting.

Sorry I've come to this a little late, but I come via Martin Coward's blog post.

While I agree with you that limiting discussion of the video to a merely technical framework of what was or was not a war crime is not the best response to this video, I have to disagree with your tactical recommendations. Specifically, the shift from "how" to "why" misses out on both their interdependency and the point of greatest weakness that the video exposes.

First, on the interdependency. To set up a clear distinction between the how and the why, and to suggest that an obsession over the how serves to eliminate the why, is, I think, a false proposition for modern warfare and, in this particular political context, a poor argumentative tactic. The broader strategic question of why we're fighting in Iraq has already lost almost all of its original substance. While we went in for all sorts of why's, we're still there today not because of a compelling overall justification, but because of a lack of determination to not be there, and a gnawing sense that there really ought to be a good reason to change course. But the false distinction lies in the fact that many of the lingering reasons WHY we are fighting in Iraq are linked to the ways in which we perceive that fighting to occur. The root that connects many of the remaining justifications, like "if we leave there will be a civil war", "we need to stay until Iraqis can provide security", etc., are linked to the perception that we are -- on balance -- a force that saves more Iraqi lives than we take. This perception is grounded in a mistaken view of the capabilities of our technology, the "how" of our fighting -- both in terms of our technical and moral capabilities to discriminate.

Second, if this interdependency between the belief in our superior capabilities and the reasons we remain in Iraq actually exists, as I've suggested it does, then relinquishing the question of "how" to Connelly's Evangelical-Capitalist Resonance Machine and the wizardry they promote, seems to me to relinquish a key argumentative point that this video exposed. Namely, that our technology does not actually provide us with the capability to discriminate we believe it ought to provide, that because of this we're incapable of accomplishing the goals our fantasized police-military "action", and that our justification for fighting these wars is therefore groundless.

Following on from David Campbell's link to Israel-Palestine, I think the notion of lawfare as well involves a very one-sided view of the role of law in that conflict. While law has always been deployed by the state for it's own purposes, it's also been a key battlefield for all sorts of forces. In the Israel-Palestine conflict in particular, you can chart the course of the battle in everything from the threat of war crimes charges being brough against Israeli officials in the UK to the constant tug of war between the High Court and the Israeli military. Indeed, Gershon Shafir and Yoav Peled, in Being Israeli, see the legal apparatus as the key juncture in a battle over Israel's character, where it competes with republican-security-first and religio-people-first identies. If you relegate the realm of law to a merely justificatory role, you also relinquish one of the only apparatuses which sets out a rule against which those of us without physical force can seek to hold those who have it to account. I wouldn't suggest it's a perfect field, but if we see it as a domain owned by the state, we've already relinquished a frightening amount of agency in the process.

Nate, many thanks for your thoughtful and compelling comments!

To be honest, I'm not entirely sure where we are in disagreement on your first two points? The 'why' and 'how' are certainly inter-related. What I was trying to suggest was that this video might spark political opposition on the part of those who previously consoled themselves about Iraq--and the shaky premises with which it was launched and later rebranded--by a faith in the idea that as part of the responsibility to get things sorted, it is really only the deserving dead--criminals, former Bath party members, Islamist terrorists, insurgents, foreign agitators-- who are being despatched at the hands of occupying forces. What we see in Collateral Murder is that ordinary people pay a price too.

It may be that the majority of members of the general public are willing to let ordinary Iraqis pay this price. But it does make it harder to pretend that civilian losses will be the exception rather than the rule in modern warfare. And, it also draws attention to how these losses are accepted and normalized within ROEs and international humanitarian law. So, what I was trying to get at was that this might open the possibility of placing a renewed focus on the 'whys' of war. And in doing so, I would hope that the level of discourse goes beyond typical leftist 'blood for oil' tripe that passes for critical commentary and instead gets to a more important issue identified by Martin Coward in his post: under what conditions is the resort to force ethically justified and with what costs, keeping in mind that the civilian losses will be the norm? This doesn't mean abandoning the 'hows' though, which I would agree would be a devastating political concession.

Similarly--and this comes from another cogent point made by Martin Coward --I think undermining the current 'hows' of war directs attention to the ways in which these 'hows' are linked to contemporary (geo)political, legal, economic, and social dynamics, opening--at least-- the possibility that these might face more strenuous forms of political challenge. But given how the whole story seems to have largely burnt out and the recent allegations by Wikileaks that their online presence has been targeted in numerous ways, this may just be wishful thinking.

With regards to your third point, I do take on board your arguments that courts within Israel have at times constrained the 'security-first whatever the cost' impulses exhibited by elements of the Israeli state. So, I would concede that this can be more complex than I have presented depending on the issue. And it would be counter-productive to completely abandon the legal sphere as a space for resistance. Unfortunately, I'm still far less sanguine about the possibilities open within existing legal frameworks at the international level, the way in which legal procedural tactics can be used to wage wars of attrition against less resourced litigants, and the scope for impunity. But maybe I've just been reading too much discussion of Agamben, Benjamin, Schmitt, and Derrida on law, justice, and force lately....

Thanks for the response Kyle. Perhaps I read the why/how issue a bit too broadly having come across Martin's synopsis of your post first. And perhaps I'm just a little touchy around the issue, having become frustrated with the broad lines I've seen painted in much of the work of those from the biopolitics-bare life camp (I say that as a great fan of Foucault rather than someone poking from the outside).

And I think you make a good and important distinction between the efficacy of (some) national legal systems and "international law". There is certainly little scope for bringing powerful perpetrators to justice. And yet, precisely because their perceived moral foundation is so important to them, international law can still function as a lever against their moral satisfaction, even if it can't put anyone behind bars. But this is, of course, little compensation to the victims.

Nate many thanks again for your constructive contributions! I think you highlight something really important in your last comment regarding how to approach questions of law and 'justice'. By paying attention to the most obvious aspects (e.g., cases and verdicts), we can overlook other crucial roles that these can play as processes, particularly in terms of performatives of (self) identity.

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