The dual penal empire: Emergency powers and military courts in Palestine/Israel and beyond

This article explores the duality of emergency powers and criminal law in old and new formations of empire. Set against the backdrop of the US “war on terror,” I link discussions around current articulations of empire and the treatment of “enemy combatants,” illuminating new connections between empire, emergency, and “enemy penology.” Focusing on Palestine/Israel, I explore the duality created by emergency powers and criminal law from the late British Empire to contemporary Israel/Palestine as an “imperial formation.” Through a genealogy of emergency legislation, military courts, and two case studies from the 1980s Israel, I show how emergency powers constitute a penal regime that complements ordinary criminal law through prosecutions of racialized enemy populations under a distinct exclusionary and punitive legality. Building on Markus Dubber's Dual Penal State, I demonstrate how the—openly illiberal—dual penal empire (i) suppresses political resistance (insurgency, rebellion, and terrorism) and (ii) institutionalizes enemy penology through emergency statutes and military courts. Thus, in imperial formations, such as Israel and the US—which deny their illiberal features—emergency powers are framed as preventive security and denied as part of the penal system, while enemy penology operates in plain sight.

Prisoner Regimes and a Transnational History from Below

Enemy combatants captured in wartime are both a potential resource for their captors and a logistical and security nightmare. This has long been reflected in their treatment. Over the centuries, captured enemy combatants have been sold as slaves (or simply used as slave labour), forced to switch sides, ransomed for money, swapped for other prisoners, physically maimed to ensure they could no longer fight, starved to death, imprisoned under abysmal conditions, or outright massacred. And yet, surprisingly, at other times (including in the period covered by this book), most prisoners of war – though not, as Morieux shows, all – have not only had a protected status but, especially in the case of officers, been allowed a degree of freedom of movement that seems extraordinary by modern-day standards.

The Paradox of Precision and the Weapons Review Regime

As aerial weapons become more accurate and precise, they paradoxically expose civilians to greater harm. They make the use of military force feasible where previously it had not been. While these weapons are subject to legal review to certify that they are capable of being deployed in a discriminate manner, weapons review practice in the US and UK lends cursory approval to weapons that are as likely to harm civilians as enemy combatants. This article argues that a robust contextualized review of weapon’s effects on civilians and combatants is both legally required and in states’ strategic security interests.

Autonomous Weapons and Reactive Attitudes

The discourse surrounding Autonomous Weapons Systems (AWS) should encourage deeper consideration of how perceptions and reactive attitudes toward AWS could evolve in such a way to no longer reflect their deterministic nature. As AWS become more sophisticated and demonstrate increased behavioral complexity, it may well become more difficult for soldiers and policymakers to continue to view these systems dispassionately. This chapter draws on P.F. Strawson’s work to demonstrate how humans may find it impossible to fully rid themselves of reactive attitudes toward AWS. This chapter goes on to consider the consequences of humans and AWS in a shared environment. Human beings, whether enemy combatants or civilians, may respond to AWS not as sophisticated but ultimately deterministic actors, but rather as free agents and thus targets for feelings of gratitude or resentment. The link between behavior interpretation, perceived agency, and emotional attitudes has important implications for the deployment of AWS. A common argument in favor of AWS is that they would reduce collateral damage in counterinsurgency operations. It is far from certain that even the detached, calculated, and objective decision-making of an AWS would reduce the reactive response of the local populace. This chapter concludes by noting that some resentment to the lethal use of force is inevitable among civilians and combatants and argues that the deployment of an AWS is an unreliable tool for reducing this response.

7 Methods of Combat

This chapter focuses on methods of combat under international humanitarian law. The fundamental idea underlying all humanitarian rules on methods and means of warfare has always been the concept of military necessity. According to the traditional approach, only the use of those means and methods of combat which are necessary to attain the military purposes of war, purposes based on the ultimate goal of overpowering the enemy armed forces, are permitted. Accordingly, the civilian population and civilian objects do not constitute legitimate military targets. Equally prohibited is the deliberately cruel killing of enemy combatants by weapons which uselessly aggravate suffering. Because these principles of ‘limited warfare’ which were formed during the nineteenth century became the nucleus of the (originally customary) laws of war, opinio juris and the practice of the nineteenth century have had a decisive impact on the shaping of modern humanitarian law. The most serious problem of rapidly developing modern warfare proved to be the use of the air force.

Hugo Grotius, Declaration of War, and the International Moral Order

This article investigates the formal purpose of declaring wars for Hugo Grotius. Grotius was adamant that states always use justification in a duplicitous way to conceal their real motivation to go to war. As such, the purpose of declaration is not to assert the just cause of war. Rather, what any public declaration does, is provide recognition that confers legal validation to the disputing parties. The legal rules of war were described by the law of nations and occasionally permitted states to commit certain ‘war crimes’ with impunity. For Grotius, this was not a moral sanctioning of such crimes but rather a means to prevent the occurrence of wars, which such endless repudiations risked causing or exacerbating. Grotius’s concern for the effects of war is conspicuous; and recounting his maxim that war should always be a last resort, this article argues that declaration of war has a distinct moral purpose for Grotius. In fact, public declaration of war is, together with constraints on the conduct of war, a ‘principle of moderation’ Grotius insists should be upheld in times of war. Declaration of war gives the parties avenues to seek peace and reconciliation, and, therefore has a humanitarian purpose for Grotius by ultimately seeking to prevent the disparaging effects of war. Even in wars that do not demand a public declaration, such as those regulated by natural law such as punitive wars or defensive wars, Grotius cautions that declarations of war are advisable. The remaining lingering issue is how to engage with unlawful enemy combatants, such as pirates - a distinct problem that the international community still faces with increasing regularity. Grotius was certainly aware of the legal (and moral) consequences of recognising belligerency we cannot possible hope to build moral relations with, and, this article claims, ‘unlawful’ enemies ultimately demarcates the boundary of international society.