‘The Lawyers’ War’

This chapter analyses the involvement of military lawyers in the planning and conduct of the US-led First Gulf War in 1990–1991. Contrary to representations of the First Gulf War as one of the cleanest, most precise, and limited wars the US military has ever fought, this chapter outlines the planning process and rationale behind the US military’s destruction of Iraq’s key infrastructure. The laws of war and military lawyers played no small part in the patterning of violence as key legal interpretations turned ‘dual use’ infrastructures into legitimate military targets—with cascading collateral consequences for civilian life in Iraq. The chapter considers how calculations of proportionality failed to properly consider the ‘slow violence’ of targeting, which enabled and legitimized forms of infrastructural violence and military destruction that might otherwise be considered impermissible.

Conclusion. Juridical Warfare: Limits and Possibilities

This concluding chapter places the US–Israel approach to targeting in international context and reflects on the limits, possibilities, and future of juridical warfare. It argues that while other NATO states employ military lawyers in targeting, notably in US-led military coalitions, they have generally taken a more restrictive interpretation of the laws of war than the United States or Israel. Juridification is an uneven process: not all states are equally invested in its language or practice. Drawing on the examples of Syria and Yemen, the chapter shows how juridification today (its presence and absence) is conditioned by the retreat of multilateralism. The chapter also reflects on controversies concerning lawfare and humanitarianism. In an era of ‘irresponsible politics’, it asks what the rehabilitation of war might mean for the revival of an antiwar politics (as opposed to single issue campaigns against drones or torture, for example) as was mobilized against the Vietnam War.

Targeting Without Lawyers

This chapter argues that the US-led war in Vietnam (1955–1975) paved the way for institutional changes in the US military, including the establishment of the US Law of War Program, which later precipitated the emergence of a new doctrinal approach to the laws of war called ‘operational law’. Military lawyers emerged from the Vietnam War better equipped and with a formal mandate to advise military commanders on the legality of targeting operations. Military lawyers performed a wide range of duties in Vietnam, especially around Prisoner of War (POW) issues, and were deployed in unprecedented numbers. Military lawyers were not involved in targeting, neither during ‘Operation Rolling Thunder’ nor ‘Operation Linebacker’, but the Vietnam War in general and the My Lai massacre of 1968 in particular helped to create the conditions for their involvement in subsequent wars.

Introduction. The War Lawyers and the Self-Legalization of the Military

This introductory chapter provides an overview of the book’s scope, aims, methods, and arguments. It argues that in recent decades the United States and Israel have been at the forefront of efforts to widen the scope and space of what constitutes a permissible military target. This has been achieved not by ignoring or circumventing the laws of war but through extensive and diligent interpretive legal work. These interpretive efforts signal not so much an assault on international law (as some have claimed); rather, they represent an assault through international law, whereby its language and content are employed in the service of mission success. The chapter also explains how and why military lawyers became integrated in the ‘kill chain’—the bureaucratic process by which targets are identified and attacked. Key legal, military, and analytical terms are explained en route.

The Kill Chain (I)

This is the first of two chapters analysing the role of military lawyers in the contemporary US kill chain. This chapter focuses on deliberate (planned) targeting operations and the routine nature of legal advice at a key location in the US targeting apparatus—the Combined Air Operations Center (CAOC) in Qatar. Military lawyers participate throughout the ‘targeting cycle’ giving legal, operational, and public relations advice. In contrast to inflated claims about the ‘total’ visibility of the battlespace, planned operations are beset with gaps in intelligence and emergent events. Legal oversight is far from complete, given the scale of lawyer deployment. Moreover, the legal frameworks that military lawyers bring to bear on the kill chain are malleable and open to a wide range of interpretations. In practice, this means that the constraining function of targeting law often loses out to its enabling function with consequences for who and what is targeted.

Targeting Gaza

This chapter examines how Israel Defense Force (IDF) lawyers came to play a crucial role in aerial targeting operations in Gaza and how they helped to develop a targeted killing policy in the post-2000 Second Intifada period. It outlines the historical roots of the Military Advocate General Corps (MAG Corps) in the creation and administration of the occupied Palestinian Territories. It then shows how in the early 2000s Israeli military lawyers became instrumental in devising new legal concepts and categories to expand the definition of what (and who, under what circumstances) constitutes a lawful target. It further argues that Israeli military lawyers have been pivotal in calibrating military violence in all of the recent major aerial assaults on Gaza, including ‘Operation Cast lead’ (2008–2009), ‘Operation Pillar of Defense’ (2012), and ‘Operation Protective Edge’ (2014). The mutual influence of US and Israeli targeting policies is also examined.

The Birth of ‘Operational Law’

This chapter analyses the invention and development of ‘operational law’ by US military lawyers and commanders in the decades following the Vietnam War. Operational law is a pragmatic, practitioner-oriented, and military-friendly framework for interpreting rights and responsibilities under international, domestic and military law. This chapter shows how operational law helped the US military to put these legal regimes to work in the service of achieving military objectives, as military lawyers helped create a broadly permissive albeit bounded legal environment for military operations. The birth of operational law laid the foundations for a new symbiosis between commanders and lawyers, providing them with a common vocabulary and a shared understanding of the mission—factors which were later crucial to the integration of military lawyers into targeting operations.

The Kill Chain (II)

This chapter is the second of two chapters that analyse the role of military lawyers in the contemporary US kill chain. It focuses on dynamic (unplanned) targeting and shows how its ontology of violence necessitates rapid forms of decision making that affects both the possibility of legal advice and its content. An examination of close air support (CAS) and troops in contact (TIC) targeting operations reveals the rapid legal and operational interpretations that military actors form as they attempt to make sense of highly mobile targets and fast-moving events. These involve issues of self-defence, imminence of threats, and proportionality. It is argued that dynamic and time-sensitive targeting create their own unique military ‘necessities’ and governing legalities. The chapter shows that the latitude given to interpretational work has real-world consequences for both troops on the ground and civilians: dynamic targeting accounts for a high proportion of fratricides and civilian casualties.