Wars over the laws of war

DoD Law of War Manual

The Pentagon has just published a new edition of its Law of War Manual: you can download all 1200 pages here.  From the Foreword by Stephen Preston, the Pentagon’s General Counsel:

The law of war is a part of our military heritage, and obeying it is the right thing to do. But we also know that the law of war poses no obstacle to fighting well and prevailing. Nations have developed the law of war to be fundamentally consistent with the military doctrines that are the basis for effective combat operations. For example, the self-control needed to refrain from violations of the law of war under the stresses of combat is the same good order and discipline necessary to operate cohesively and victoriously in battle. Similarly, the law of war’s prohibitions on torture and unnecessary destruction are consistent with the practical insight that such actions ultimately frustrate rather than accomplish the mission.

Thanks to Marty Lederman at Just Security: watch that space for more commentary (I think….)

W Hays Parks 2003In the meantime, for some of the politics involved in the protracted publication process of the new manual (and an explanation of the title of Marty’s post), see Edwin Williamson and Hays Parks [right] writing in the neo-conservative standard bearer the Weekly Standard in July 2013 here, who – even as they insist on their non-partisan, apolitical and thoroughly objective perspective – nailed their colours to the mast in no uncertain terms:

From the outset it was agreed that the manual would be apolitical—it would be based on the law rather than political arguments inconsistent with the law of war. For example, the working group rejected arguments by some Bush administration officials that the law of war did not protect captured al Qaeda and that “enhanced interrogation procedures,” including waterboarding, should not be banned.

Obama administration political appointees, though, have aggressively sought changes in the manual to conform to their political philosophies or legal arguments in detainee litigation, pushing for rules and principles that vary from longstanding law of war treaty-based terminology and norms previously accepted by Republican and Democratic administrations.

One of the more egregious changes proposed by State Department political appointees and human rights activists on the National Security Council was the removal of a paragraph acknowledging that the law of war is lex specialis—the controlling law in armed conflict. Denying the lex specialis status of the law of war would enable activists to inject human rights law into the manual and onto the battlefield. Deletion of the lex specialis text was apparently not sought on the basis that it was legally incorrect, but, we suspect, because it was inconsistent with their political agenda.

Such a change would impose restrictions on U.S. forces in combat so that deadly force could be used only against an enemy who had refused a surrender opportunity or who posed an “imminent threat.” These requirements would place our fighters on a footing comparable to a police officer in the United States in a peacetime environment and at an extreme and unprecedented risk of being killed by the enemy or facing “war crimes” allegations by human rights activists.

Justice Department efforts toward the draft manual echo its continued post-9/11 view of the battle with al Qaeda entirely (and incorrectly) from a law enforcement perspective. It seeks to bring the manual text into conformity with terms and arguments it uses in court (many of which are inconsistent with the law of war).

A change Justice Department lawyers sought involved civilians on the battlefield. Under the law of war, a civilian loses immunity from direct attack if he or she “takes a direct part in hostilities.” The working group agreed that this participation does not, however, necessarily constitute criminal activity. Without consulting with working group experts or senior DoD or State policymakers, Justice Department attorneys have asserted that it does. This extreme (and incorrect) position would place at risk of enemy prosecution the substantial number of U.S. and foreign civilians who accompany our armed forces in the field in time of war and whose support is a major basis for the way in which the United States—with congressional approval—determines its military force structure. Justice Department lawyers created new law to enable the department to win its cases against al Qaeda, disregarding battlefield consequences for civilians lawfully accompanying our own forces.

More from Charles Kels here.

Military, media and (im)mobilities

Two important new books on Israel’s occupation of Palestine that both have even wider implications.

First, Adi Kuntsman and Rebecca Stein on Digital militarism: Israel’s occupation in the social media age from Stanford University Press:

pid_23022Israel’s occupation has been transformed in the social media age. Over the last decade, military rule in the Palestinian territories grew more bloody and entrenched. In the same period, Israelis became some of the world’s most active social media users. In Israel today, violent politics are interwoven with global networking practices, protocols, and aesthetics. Israeli soldiers carry smartphones into the field of military operations, sharing mobile uploads in real-time. Official Israeli military spokesmen announce wars on Twitter. And civilians encounter state violence first on their newsfeeds and mobile screens.

Across the globe, the ordinary tools of social networking have become indispensable instruments of warfare and violent conflict. This book traces the rise of Israeli digital militarism in this global context—both the reach of social media into Israeli military theaters and the occupation’s impact on everyday Israeli social media culture. Today, social media functions as a crucial theater in which the Israeli military occupation is supported and sustained.

Here is Laleh Khalili on the book:

“Amidst the hype of Facebook revolutions and the ostensible democratizing power of social media, Adi Kuntsman and Rebecca Stein illuminate the counterpoint: online militarization and the extension of state politics into the virtual realm. They expose the machinery of the Israeli state power at work within social media, and show the possibilities for countering the force of this machinery. Powerfully argued, beautifully researched, and thought-provoking, Digital Militarism is vitally important.”

Second, Hagar Kotef‘s Movement and the Ordering of Freedom: On Liberal Governances of Mobility from Duke University Press:

KOTEF Movement and the ordering of freedomWe live within political systems that increasingly seek to control movement, organized around both the desire and ability to determine who is permitted to enter what sorts of spaces, from gated communities to nation-states. In Movement and the Ordering of Freedom, Hagar Kotef examines the roles of mobility and immobility in the history of political thought and the structuring of political spaces. Ranging from the writings of Locke, Hobbes, and Mill to the sophisticated technologies of control that circumscribe the lives of Palestinians in the Occupied West Bank, this book shows how concepts of freedom, security, and violence take form and find justification via “regimes of movement.” Kotef traces contemporary structures of global (im)mobility and resistance to the schism in liberal political theory, which embodied the idea of “liberty” in movement while simultaneously regulating mobility according to a racial, classed, and gendered matrix of exclusions.

And here is Eyal Weizman on this one:

“In this book Hagar Kotef manages to successfully weave several intellectual projects: a wide-ranging and theoretically sophisticated contribution to political theory, a robust and fine-grained analysis of the mechanisms of Israeli control of Palestinian movement, and a direct confrontation with its injustice. This book is a major contribution to the topological shift in the study of space. Kotef does nothing less than rewrite the history of territory as a matter of movement, and that of sovereignty as the control of matter in movement. By pushing her original insight as far as it would go, she best captures the logic of the world we struggle to live within.”

You can read the introduction on Scribd.