Inside the Kill Chain: An Interview with Craig Jones

Warfare today is often closely supervised by lawyers, yet, as Craig Jones shows in his important study The War Lawyers, this does not necessarily mean violence and brutality have been mitigated. Tracing the emergence of what he describes as “lawfare,” Jones focuses on the United States, where this phenomenon first emerged, and Israel, where it has been perfected over the last two decades. Combining historical research with hundreds of hours of interviews with senior military lawyers, Jones’s account suggests that the conventional understanding of the relation between law and war, and perhaps even our understanding of law more generally, should be rethought. Boaz Levin spoke to Jones via video in June 2021.

Cabinet: Your book offers what for many will be a surprising account of the relation between law and war. Whereas a wider public might associate law and legality with efforts to make war more humane and, ideally, less violent and less deadly, your account shows in great detail how the relationship between law and war is in fact very different, and more complicated. You describe law as becoming a kind of “medium of violence”—a means by which it is often legitimized, rather than simply a way of limiting it. What led you to write this book?

Craig Jones: I first learned about military lawyers back in 2008–2009, around the time of “Operation Cast Lead,” the Israeli bombing of Gaza, which lasted three weeks at the end of 2008. At the time, there were lots of accusations of illegality made against Israel, and those accusations were based precisely on that conception of law, which you just nicely summarized—the sort of public or human rights version of law as something which should limit violence. And, therefore, when Israel behaved in such an aggressive way—for example, by bombing hospitals, United Nations buildings, killing lots of civilians, doing all kinds of things that ostensibly could be called war crimes, or at least prompt calls for investigations into possible war crimes—that was the understanding of law that human rights activists and lawyers, and many liberals and others internationally, turned to. From this perspective, there is a line which should not be crossed, but Israel crossed it, and continues to cross it. And, in response to this, Israel, for the first time—at least that I’m aware of—publicized the extent to which military lawyers or legal advisers were involved in overseeing those operations in very intimate detail, down to signing off on every single strike, or at least all those strikes that were preplanned. At a senior level, the law was part of the questions that shaped the operation: How is this operation going to look from a macro perspective? What are the objectives? What do we want to do? How much do we want to punish Hamas and the people of Gaza? And their position was that not only was it not illegal, but that they had lawyers ensuring that it was cutting-edge law, “the best version of law”—amazing, highly trained lawyers who had gone to the best law schools in the US and Israel. And these lawyers, who speak perfect English, were able to narrate to English-speaking audiences around the world a justification for the violence we were seeing. So, that’s largely how I first became interested in military lawyers; before that, I didn’t even know that they existed.

Part of what I thought is so illuminating about your book is that it both provides a historical account of the emergence of what you call “war lawyers” and includes interviews with people intimately involved in these processes. How did this structure come about?

In terms of the history, that’s how I came to understand what military lawyers were doing in Israel. And their history, in some sense, is an Israeli history that’s tied very closely to occupation, and occupation law—to the making of all of the rules by which occupied Palestinians will live. That dates back obviously to 1967, but also to 1948 and to the rules that would apply to conflicts relating to the governance of Palestinians under occupation.

Because the Palestinian population within Israel proper was under military rule between 1948 and 1966, which people often forget.

Right, as if history starts in 1967. But the legal corps to which all these guys belong—as I detail in a minor way in the book—actually preceded the founding of the state of Israel in 1948. They were an informal group of lawyers belonging to the Haganah, a Zionist civil and paramilitary organization that was also trying in some legal ways to work toward the establishment of the Israeli state. So, their immediate context is the law of occupation. It emerges out of that, and builds on the work of famous lawyers like Meir Shamgar—well-known historical legal cases, which have only been unearthed recently by Israeli revisionist historians. There’s that great film by Ra’anan Alexandrowicz, The Law in These Parts, in which he goes back and tells some of this history.

But for me there was another context too, and this actually came from an interview with Daniel Reisner, a reserve colonel for the Israel military and the former head of the International Law branch of the Military Advocate General (the legal corps of the Israel Defense Forces), about how he personally became inspired to use military lawyers in the way in which they’ve come to be used in the twenty-first century. The way he tells it, it was at the start of the Second Intifada that he first realized that Israel’s relationship with Palestine should henceforth be understood as a relationship of war, because this would allow the Israeli military to do certain things which they otherwise could not do. For example, in a situation of war, a state has recourse to a wide repertoire of violence, including overwhelming and deadly violence, that does not exist under a classic situation of peace. So, he began to argue that Israel’s relationship with the Palestinian territory should be one of never-ending war in which Israel can turn on the switch from war to peace and vice versa whenever it wants, with major military interventions every few years punctuated by simmering strikes and incessant surveillance. And we can still see this twenty years on in an especially radical—even crazy—form with, for example, the rules of engagement Israel used in the Great March of Return, a series of mass demonstrations held each Friday in the Gaza Strip near the Gaza–Israel border from 30 March 2018 to December 2019. The rules mostly sought to maim rather than kill, but Israeli soldiers were shooting some people under war rules of engagement and others under peacetime military operations rules of engagement. This paradigm of war—what he called an “armed conflict short of war,” a term Reisner told me he simply made up one evening because he needed a new name for what he considered a new legal reality—still hasn’t been resolved; it remains a core of Israeli military policy and is now part of the national psyche in Israel. This ambiguity as to which rules apply, and when and where, allows for maximum flexibility with very little oversight.

Reisner is a man who says he’s interested in history, although obviously only certain kinds. He has read US military history and discovered that it was in Panama in 1989 that military lawyers were first used in this way—there were targets to be struck, people to be killed, and the military took their lawyers with them. He extrapolated from that very particular, complicated operation—to remove a foreign leader from power; a coup, essentially—that it could somehow be paralleled to what was happening in Israel, that it would be a good way to draw on military lawyers.

Inevitably, I went back to Panama and to that period, and there you see parallels between Israel and the US, especially with the First Gulf War, in terms of the relationship between war and violence. Actually, the literature from that time is probably strongest in terms of undoing the original idea about the relationship between law and violence that we started the interview with. And scholars in the early 1990s were making the same sorts of arguments that I was making in the mid-2010s, because these commentators and legal experts couldn’t reconcile the devastation that we witnessed in the First Gulf War—mass destruction of Iraq’s key infrastructures and the sanctions that came after—with the fact that it had been justified and implemented through the language of international law. This led them to ask how one can talk about international law as a restraining force, about the relationship between law and violence as being necessarily oppositional, when that destruction was partly enabled, not just by the lawyers, but by the law itself.

I went back and interviewed the people involved in the planning of the First Gulf War, and those who served in Panama, and found very similar things in terms of their justifications for the violence. But my question was: How do we get to a period in which military lawyers are invited into war rooms where they are seen as “force multipliers”? That history, it turns out, begins in earnest in the Vietnam War, which is why I start the book with it. And it’s really a story about the lessons that the US military learns from Vietnam, either about military failures or about legal failures—the inability of the US military to stop its own troops from committing war crimes at Mỹ Lai and elsewhere. These failures then set in motion a whole program in the United States to have law as part of a key structuring device for how people conduct war. And that was deliberate; it was systematic, it was careful, and it really was, for me, a sort of domestication of international law, so much so that the US could really put a “Made in USA” stamp on international law, making it palatable, and acceptable, for their own military forces.

The lessons learned from Vietnam already show an interesting dynamic at play. On the one hand, the presence of more journalists than ever before at the front and the dissemination of more images and information about the gruesome reality of war and the indiscriminate nature of the violence inflicted on the civilian population contributed to the rise of a human rights discourse. Yet, on the other hand, what you described now as this “domestication of law” was also a result of the same process, another “lesson learned” from Vietnam, by the militaries of the world—in this case the US and Israel in particular—who responded to the rise of the language of human rights and NGOs by saying, “Okay, if that’s the language you’re going to use, we can use that language too, and maybe we can use it better.”

Absolutely. In the interviews I conducted, Avichai Mandelblit—who was Chief Military Advocate General between 2004 and 2011 and was later the Israeli attorney general—and many others summarized that if one can think in grandiose terms about these debates, about the legality of war, about the legality of taking down entire apartment buildings in Gaza, you can think about it as a fight between two different interpretations of the purpose and power of international law and the laws of war. And for him and the others, this is perceived as the frontier of a war between international human rights organizations, who tend to use international human rights law as a framework of engagement, and militaries, who use international humanitarian law (or what they call the laws of armed conflict, or LOAC) as a framework. The crucial difference here is that human rights law takes a much more restrictive approach to things like killing. In human rights law, killing is prohibited in all but very exceptional circumstances and should be used, for example, only as a last resort (i.e., once less violent measures have been taken). In international humanitarian law, this is not the case at all; killing and destruction is authorized as a normal part of activities so long as it is militarily “necessary” and “proportionate.” International humanitarian law does not say that violence is only a method of last resort. So, the US and Israeli militaries often see Human Rights Watch, Amnesty, but also B’Tselem and others domestically—they don’t seem too worried about Arab human rights groups; it’s a “Westerners just don’t trust their numbers” sort of thing—as encroaching on their sphere. In other words, historically, they have understood international law to come from a lineage based in the Hague conventions, which are about the regulation of military conduct, as opposed to the Geneva conventions, which are more fundamentally about protections for civilians. From this perspective, the correct regime for understanding all military violence is, again, what they call the laws of armed conflict, and not the more restrictive regime of international human rights law. It’s in order to make that distinction that they call it the laws of armed conflict and not international humanitarian law, even though they’re exactly the same thing; they use this terminology because they want to assert the military-ness of that law as opposed to the humanitarian-ness of that law.

It’s a sort of clever semantics, or maybe not so clever semantics, and that’s where they see the whole frontier of this history, as you say: the anti–Vietnam War movement, the subsequent rise of the international human rights movement in the 1970s, and ultimately the taking of territory from the military in this sphere through public education, with media coverage becoming somewhat more informed and able to speak from a layperson’s perspective about international law and to have debates about “proportionality,” “necessity,” and what’s legitimate—so much so that everyday people have opinions on whether things are legal or not, even though none of us are lawyers. That’s come at a great cost to the militaries, they feel, and hence their response is, “Okay, if you’re coming for our territory (the law in war), then we just have different interpretations of that same body of law. We have better interpretations, or more aggressive interpretations. And besides, we are the people who must live and die by these rules, so we should rightly be the ones deciding what the rules are.”

But to take it in a different direction, there is great opposition in Europe, continental Europe especially, to this version of things: they would see Israel and the US’s positions as illegitimate interpretations of international humanitarian law and might disagree with my argument that this is law-making power per se, saying, “Just because the US and Israel do it and say it’s legal doesn’t mean that the rest of the international community agrees with that.”

In the book, you tell a very interesting history of the emergence of the term “operational law.” Could you say something about this?

Operational law is a new term that emerges in the late 1970s and early 1980s, when military lawyers begin to use it, firstly among themselves, to describe all of the things that happen in the military sphere that have a legal element. People at the time came up with some definitions. These are very small circles, tens of people, publishing in small military journals. As I mentioned, lots of commanders came out of Vietnam with this idea that international law is a source of restraint, and, more radically, that the US military in fact lost the war because lawyers and political leaders put legal constraints on what could and couldn’t be targeted—which is to say, they fought their war with their hands tied behind their backs. I think this is a misreading of history, but it nonetheless was very real to those commanders. The quote that crystallized all of that was Lyndon B. Johnson telling them that they were not allowed to “bomb a shithouse” without his approval—the idea that the war was controlled from Washington. So that sets the political context for that period, when military lawyers were very concerned about the perception among military commanders that international law was something to be scared of. So, these lawyers invent this new term in order to distance—linguistically and psychologically—law as it pertains to military operations from international law and the connotations it has. They start teaching operational law to military commanders, with the fundamental thing being that it does not have to always restrict military violence. Rather, it is about asserting military rights, i.e., what the military can do, what it’s permitted to do, as well as its responsibilities—which is about restrictions and international rules that they must abide by.

I think that was the key innovation, and it was in large part a boring doctrinal conversation, which doesn’t really take place outside of myopic journals and conferences, but which, as I argue in the book, had a large impact on how the US military comes to understand law and legal responsibility in the late twentieth and early twenty-first century. In other words, it introduced the idea that law can be a force multiplier. And that doesn’t only mean that one can apply force within the law: it means that law can be a strategic asset, that having law on your side helps with legitimacy—you can answer claims of illegality when someone says you’ve committed war crimes, you can say you’ve abided by international law. And so, it’s been this military education in international law by another name—a sort of domestication, as we discussed. I think it’s very much a classic US response to large parts of international law. The Hague in the Netherlands, Geneva in Switzerland: these are European places where significant historical treaties were made, and in some respects, this is the US’s attempt to make them more US-centric, to stamp further American authority on this product of ostensibly international origin.

To give a better idea of how this plays out during war, could you say something about the remarkable phenomenon you describe called the “kill chain”?

The “kill chain” is a cold but accurate descriptor for the process by which militaries identify a target, and then come to what they call “prosecuting”—killing or destroying—the target. It is a bureaucratic process. The everyday term for this is “targeting.” When the military says they’re targeting something, or engaged in a targeting operation, or “we targeted a Hamas operative,” they are talking about the kill chain. There are lots of acronyms, lots of military jargon, and Israel has a slightly different way of approaching it. But in the US, it’s referred to as the “kill chain.” Informally, military guys also call it “the doughnut of death,” because the diagrammatic expression of the kill chain looks like a ring. In the US, it’s a six-stage operation whereby you set military objectives in the first stage, what it is you want to achieve—say, you want to defeat ISIS, or destroy Hamas tunnels—and then the next steps are: Okay, which tunnels are we going to destroy? Where are these “terrorists”? What bombs should we use? How many bombs do we need to drop? What are the collateral damage assessments? What is the maximum number of known civilian casualties? When should we do the attack? Should we wait until maybe nighttime, when children are not at school? Should we wait until the sports stadiums are empty? Should we warn the civilian population about the impending attacks? That’s something we’ve recently seen Israel make a big deal of: it kindly warns civilians before it blows them up and destroys their houses. It’s basically everything a military must do in order to imagine and literally bring into the world a target; the most important thing to remember about the kill chain is that it makes everyday human realities—animals, streets, buildings, places—into something targetable. And that’s impossible without, firstly, imagining all of those things as something which can be blown up and destroyed.

And there’s no due process, of course, no litigation. It’s basically just the prosecution prosecuting, with no one to answer.

Exactly. They call it the “prosecution of the target,” but if you’re going to use the legal metaphor of prosecution, then it seems only right to have a defense or an appeal or maybe a judge. But, of course, civilians and those labeled as “militants” have no recourse to prove their innocence or to show that they are not a legitimate target and so forth. Over time, militaries have developed and honed the kill chain, making it much more sophisticated and technological. And I think the built-in ideological lie that comes into the kill chain—one that has been with war for at least as long as aerial warfare has existed—is that we can kill the right people, we can destroy the right things, with minimal damage to the surrounding area and people. I did some historical research on World War II, and both the Allies and the Germans were saying more or less the same things that are said nowadays, which is insane because they were dropping bombs that, on average, landed up to one mile away from the designated target. We’ve come a long way, and I think that’s probably worth acknowledging. We’re not often destroying whole cities, but we still systematically kill the wrong people, and civilians are still a legitimate part of the kill chain. And the military technologists’ response is like that of computer programmers, who say that we can design perfect algorithms—we just need to keep adding more data, more intelligence, more surveillance, better technology, and we’ll arrive at what one military commander described as the “immaculate conception of warfare,” which is zero civilian casualties. It’s nonsense, philosophically and ontologically.

Also, the definition of who counts as a militant has expanded greatly, as you show. Or, perhaps it hasn’t really expanded but rather morphed and stretched beyond recognition.

Yes, I’ve recently been thinking about the expansion of this term. The civilian becomes more and more targetable, and more people lose their civilian-ness, because the military makes them expendable.

This aspect is touched on in the book’s opening scene, where, through the involvement of a war lawyer, a sort of emblematic ambiguity is introduced as to who is actually responsible for the killing. Maybe you can tell the story of Reisner and the conversation he has with a commander whom he’s supposedly advising?

This goes back to an interview I conducted with Daniel Reisner, in which he recounted a targeting operation in which he was involved in the early 2000s. At the time, he was called into the targeted killing room at the Israeli military’s central HQ where a very important meeting had been taking place about intelligence that an Arab informant of Israel’s is being interrogated by Hamas, and the military was worried about the informant relinquishing sensitive information to the enemy. The question was: Can we kill the people who are, allegedly, interrogating and torturing him? The situation is complicated, because they don’t have much intelligence, and they need to act quickly, but they don’t know what’s in the buildings next door. Which is to say, if they strike their target, they don’t know how many other people they’re going to kill. And they can’t make up their mind, so they call Reisner, their military lawyer, into the room and ask, “Can we or can’t we do this?” It’s a yes-or-no question. Reisner launches into a sort of lecture and says, “I’m a legal advisor by name and definition. I give you advice, here’s the scenario, and then you decide.” But he felt like they were asking him to decide for them. And then, having given that lecture, he proceeded to say a number of—I think—spurious things. For instance, that there’s no washing on the washing lines outdoors, and, given that it’s summer, and Arabs dry their clothes outdoors, we can presume that there’s no one inside.

Rather than assuming that it’s just not a washing day in Gaza?

Exactly. And he goes on to basically give a green light to the operation. And in my reflection on that, I suggest that commanders can and do sometimes understand legal advice as a form of permission, a form of decision-making in itself. And that’s just one scenario. But the book expands out from that single case radically across all parts of the kill chain, which are actually far more complicated in the US context than they are in the Israeli context, in part because the context in which Israel fights is a much smaller, more knowable terrain, whereas the US is fighting multiple wars across multiple spaces and with many different actors involved. And when you look at that question of responsibility, and you ask—as I did—military commanders in the US who is responsible for a targeting operation, the military lawyers, knowing their law and their role, will say, “We give advice, but it’s the commander’s decision.” You ask the commanders, and eight out of the ten I asked said, “It’s the lawyer’s responsibility,” while the others said, “It’s joint responsibility.” And, again, in some sense that example is still only a small case study because if you expand out from there, you can include all the people, technologies, and places involved in the decision-making process aimed at killing; across the globe, the number of people engaged in this process runs into thousands, if not tens of thousands, of people.

What if operation centers in the US provide the wrong intelligence to those commanders in various places in the Middle East? What if what has been identified as rockets are actually pipes, and the commander makes his decision based on those being rockets and not pipes? Is it the commander’s responsibility? I mean, it’s ultimately the commander’s responsibility, but if things go wrong, then the responsibility is dispersed. So, the book culminates in an argument—which is not new per se, but which is, I think, more detailed—about how responsibility is dispersed in late-modern warfare across a spatial and temporal terrain that is difficult to understand even conceptually, let alone in real life.

And it’s not necessarily by design, it’s not, “Let’s see how we can evade responsibility by dispersing it across actors.” I think it’s a function of modernity more broadly. Zygmunt Baumann made a similar argument about the Holocaust: it’s division of responsibility such that no one person has responsibility for the whole thing. In a very different register, you see a similar mechanism at play in corporate culture with tax avoidance, and with all forms of modern governance. So, in some sense it’s not surprising, but my argument is that, when it has life-and-death consequences, it’s worth looking at a little more closely.

Yes, and I imagine that the individual soldier is put in a place where it’s more difficult to dissent, since someone who supposedly has more authority, more experience, more knowledge about these questions, has already done that moral work. It outsources these decisions.

Absolutely. I mean, if any of us were considering taking an individual action that we weren’t sure was legal—maybe it’s about income tax, or it’s about a business venture—and one asks a lawyer, “Is x, y, and z possible?” and they give you a series of options, we might naturally think, “It’s okay to do that.” What the lawyer has done is interpreted the law as they understand it, but they haven’t really resolved complex moral questions. They’re telling you, “In my understanding, it’s okay to avoid this tax in such and such a way,” or, “In my understanding, it’s lawful to kill this person given what we know.” They’re not telling you should avoid this tax, or kill this person. But I think in modern military operations, it’s understood that way, especially when the lawyers are senior to the soldiers they’re advising and come with lots of experience. I interviewed one military lawyer after the book was published, and he was involved in over a thousand targeting operations. It’s certainly part of an apparatus that dishes out moral work among people, so that, when it comes to the difficult business of killing, an eighteen-year-old or a twenty-five-year-old can silence their inner moral misgivings because the decision has been through a legal, bureaucratic, technical procedure. It’s been run through computers, which have said, “Yes.” Literally, I mean. The collateral damage assessment says it’s okay, and the screen goes green.

And then what’s also remarkable is that, at the end of the day, as you show, when there are casualties, which unfortunately happens quite often, the military will blame it 99 percent of the time on faulty intelligence, saying that since the target was vetted and supposedly all the parties involved did what they should have done, there’s no one to blame. It becomes an error, the result of faulty intelligence. Does this create a certain vacuum of accountability?

Yes, especially when, structurally, militaries are charged with investigating themselves, which anyone would understand is a conflict of interest. That’s not to say that they don’t look for problems; I think they do. But, as you imply, even when they find radically serious problems—elementary problems, by their own terms—they just say, “Lessons learned.” In investigating some of its own crimes, Israel recently used words such as “systematic deficiencies” or “systemic intelligence failures.” These terms indicate that it is not one person making a mistake, or not putting something in the right place. It is as if making life-and-death decisions is just one big learning experience for militaries; we can kill the wrong people, but, well, we’ll learn the lessons and get better next time.

The word that’s been on my mind throughout my reading of your book—I don’t know if you’ve learned this very important term in Hebrew—is kastach. It’s an abbreviation for kisui tachat, literally “saving ass,” and it originates, of course, in the military. It refers to exactly this sort of behavior: making sure your actions are vetted so that you’re not prosecuted. And it’s a very widely used term, culturally. I was reminded of it since you describe how law is reduced in many cases to saving one’s skin, whether it’s morally, or in terms of accountability in case of future prosecution.

Yes, there was that famous case where Tzippi Livni, the former foreign minister of Israel, talked about the lawyers and legal structures around, I think, the 2014 war as providing a “legal iron dome” over the military. I don’t really write about it in the book, but in military terms, the criterion of liability is called the “Rendulic Rule.” The standard, when imagining in hindsight the legality of an action, is to ask what the commander knew at the time that he made his decision. That’s the frontier, and, of course, the cynic can just say, “Well, you didn’t know, or if you did know, pretend you didn’t know, because it’s purely subjective.”

And, of course, you’re bombing from hundreds of kilometers away, so there’s quite a lot you can “not know.”

Yes, there’s a lot; there’s like 99.9 percent of the world that you’re not going to know. But where I’d like to see the frontier go is the question of what the commander should have known at the time, or, if they didn’t know, what the liability is for the fact that they should have known.

This came up infamously in Iraq during the First Gulf War when the US bombed an underground shelter that was being used mainly by women and children. They bombed it because they thought Iraqi forces were hiding in there. They said they didn’t know about the women and children, and there was no investigation or anything serious at all, though around four hundred civilians were killed. I talked to many of the people involved, and thinking about them as human beings rather than lawyers, I asked them, “Well, what could you have done to find out? Could you have put surveillance on them for twenty-four more hours? Would that have been enough? Could you have sent some people on the ground to see who was coming and going? What was your duty to find out, and not just throw your hands up and say, ‘I don’t know?’” Because the frontier of modern warfare, especially in cities, is knowing where every single person is and what they’re going to do. The claim before an attack is that they know exactly where people are, how houses are going to fall down after you bomb them, what’s going to burn and what’s going to collapse, how much the wall outside in the garden is going to protect the next-door neighbors from the attack, all that stuff. But it’s incomputable; it belongs to a realm beyond human comprehension.

Unknown unknowns.

Exactly.

That’s interesting, because toward the end of the book, you quote Samuel Moyn, who, in the context of the cultural prominence of Abu Ghraib and Guantanamo, writes about the transition from the anti-war movement—a protest movement that targeted war-as-such—to more recent attempts that target not the war but the illegal means by which it was being fought. So, it seems to me that there are two avenues one could take: Either you ask, “What should one know,” which is, in some sense, a way of improving the existing mechanisms. Or you question the legality of the entire war.

This reminded me of how, growing up in Israel, we had similar discussions among my circle of leftist teenage friends. We were all supposed to be drafted and were trying to decide whether to try and somehow either dodge the draft or be conscientious objectors, or rather serve and do our best to be “good” or “moral.” We had these long conversations about what we called “the good soldier at the checkpoint theory,” which is basically the view that one might do more good if one were to join the military but try to somehow alleviate what the Palestinian population goes through—make the “right choices,” so to speak, and thereby take the place of someone else who might have inflicted more damage. The idea is that this can have concrete repercussions for Palestinians: you’d let an ambulance through that someone else might have stopped, you could treat people respectfully, etc. For me, the argument ended up being that it’s not about the illegality of specific actions, but rather the illegality of the entire project of the occupation and Israel’s ethnocratic regime. In other words, in legal terms it’s not about what is described as jus in bello, the laws of the conduct of war, but rather what is referred to as jus ad bellum, the laws of the justification of war, and its prevention.

There are a few things here. I think one is the tension between individual action and structures of power, and both of us are coming from a sort of structural point of view. One can imagine lots of scenarios where one soldier could do good, and yet, inescapably, one is the soldier at a checkpoint that is central to occupation. In some ways, the book’s title, The War Lawyers, is misleading; it implies it’s about a quite narrow group of individuals. But my critique in the book isn’t, “These war lawyers are bad,” or, “These are the actors in the network that we need to get out and fix and then the rest of the machine will be fine.” It’s titled The War Lawyers because I wanted to bring attention to a particular set of individuals who hitherto were further away from the public imaginary. But ultimately, and this is the second thing we’re dealing with, it is about the full structures of law, and whether it makes sense to continue down the path of having this conversation in legal terms, or if it’s better to abandon it altogether. And, here, as I mentioned before, my answer would depend on the context that we’re looking at. To pick up your point about Moyn, his argument is broadly that, whereas we used to have, beginning with the Vietnam War, an anti-war politics—a clear articulation of opposing war in its entirety—in the late twentieth and early twenty-first century, we’ve fallen into a sort of fractured politics whereby different people oppose different, minuscule aspects of warfare in order to make it more “humane.” It could be particular mines in anti-mine campaigns; it could be drone warfare; it could be those who are pro-invasion of Iraq but against its torture and excess. I think, historically, Moyn’s is a very sensible argument to make.

What I hope for, and what the book concludes with, is to see the re-emergence of something like a truer anti-war politics, or in the Israeli situation, anti-occupation and freedom for Palestine. An anti-war politics that takes not the checkpoint but the entire system of occupation as its point of critique; that takes the invasions of Iraq, Afghanistan, and all the other places that the US has invaded as its point of critique, not the fact that they use this or that munition, that they use a drone or an F-16, that they detain or torture, but that all those regimes of war are deserving of opposition. And it’s difficult because the public seems to have lost its appetite for those broader critiques—and maybe even for the smaller ones, so that we’ve ended up in a situation where certain passionate liberals are fighting their cause more loudly than ever but being heard less and less.

But going back to Israel and the US and lawfare, the reader might detect some ambiguity in my answer to the question of the encroachment of human rights law on the military sphere: if it wasn’t working, the military wouldn’t be so upset about it. So, the fact that they’re having to respond, that lawfare has changed from a proactive military method of furthering their goals through law to, “Oh crap, now we’re being accused of war crimes and we need to do our homework,” puts them on the back foot. I think it’s also important to note that Palestinians have been speaking in their campaigns to various international organizations like the International Criminal Court (ICC) in terms of legality, appealing to international law and the laws of occupation. In my opinion, they will inevitably fall short, but if those who are most affected by criminality and violence are asking international publics to use those mechanisms and fora, then I say we need a strategy that both does that and goes beyond it.

I don’t think it has to be either-or. And for most humanitarians, most liberals, and many Palestinians, Iraqis, and others that I’ve talked to, abandoning the whole idea of the law would be too much, because what would come after it is something very hazy. What is an anti-war politics? It’s difficult to define. Where are the anti-war political parties? In the US, the Democrats can be as hawkish as the Republicans. Obama was a great fan of drones as a mode of international governance, and he greatly expanded Bush’s program of illicit killing around the globe. The book ends by considering some proposals which suggest that one has to take radical responsibilities for one’s decisions. It’s a critique of the work of David Kennedy, the great Harvard legal scholar. Kennedy suggests that experts should take more responsibility for the decisions they make, that they should not shy away from but rather inhabit the full moral weight and complexity of their decisions. But my view is that this is fairly close to the world we already inhabit, and that responsibility can be a fuzzy term, especially in the absence of accountability. What would it mean for a military lawyer to take full responsibility for his or her actions? Is this legal or moral responsibility, or something else? One military lawyer I know has tried to write about the moral responsibility he felt for his involvement in targeting operations—and what that looks like is a form of PTSD, because the moral weight of being part of the targeting apparatus can be crushing. In my view, this person personifies having taken ultimate responsibility for his actions, yet legally he has done nothing wrong. And in terms of the structures of violence, we are left, on the one hand, with civilians having been killed, and, on the other, an ex-soldier suffering from great moral injury—and the war machine rumbles on.

Another problem with Kennedy’s proposal is that if we as interested publics cede more power to experts, there is a danger that we abandon our own sense of responsibility, and that our political imagination atrophies as we lose our capacity to imagine alternative futures because the government experts tell us that this war or that assassination, or such and such depravation of rights, is necessary for “security,” to keep us safe. We need only look to the US, or indeed to Israel, to see widespread public support for things like torture and indefinite detention without trial—all predicated on a politics of fear that has proven disastrous for contemporary political imaginations.

I think what I find so compelling about your reply is that it’s not just about saying, “We need less law in war,” but, rather, about trying to rethink, or maybe reinforce, some of the forums that deal with the legality of war itself in a context that might be less comfortable for the lawfaring military.

Which leads me to another question I was thinking about while reading the book: What would you say are the main lessons we could learn about law more generally, about law as such, from your account, and about the violence inherent to law, or the violence that has to be negotiated within law? You refer to Walter Benjamin’s notion of “law-making violence.” I wonder if you have any thoughts about what one could learn about the law and its leakage into the realm of violence.

I think there are two lessons for two different audiences, the first one being the military. To some extent, the military is able to take ownership of this law-violence question more so than the humanitarians, which I’ll deal with in a moment. Which is to say, when pushed, I don’t think many lawyers would disagree with the argument that law enables violence. They might disagree with my critique, but, broadly, they would say, “It’s an obvious point that international law allows militaries to do x, y, and z. If it didn’t allow them to do that, they wouldn’t have signed up to any of it in the first place.” I think they realize that, but in that realization they conflate law with morality, so they can say, “Yes, there is a relationship between military violence and the law, it can be turned on its head, and done so strategically.” For them, that’s the end of the conversation. And the direction I’d like to see that conversation go, which maybe some in the military are taking, is a position that says, “Just because something is legal obviously doesn’t make it right.” I think individuals who return from war often know this better than anyone, and some lawyers and soldiers, especially with PTSD, return and will be forever haunted by it: “Those things that I did within the chain of command that were legal, that were considered a ‘legitimate military action,’ were nevertheless not right because I was involved in killing other innocent human beings in the name of the state.” So there needs to be some sort of reflection and conversation, some sort of institutional education, about the power that one yields when one speaks with the law. That’s a bit airy-fairy, but I just don’t know what else can come from that.

And then the second lesson, for the humanitarians. The lesson is that they advance a profoundly political project without acknowledging that it’s a political project. They speak with and of the law as if it is not a project that they have helped define and been a part of, and which is ultimately a political project. And it’s a fine political project, one that is designed to save civilians in war, to curb state abuses, and all the rest of it. And I think that they are not willing to acknowledge that responsibility because they’re still living in this almost pre-undergraduate world where law is some sort of divine power or comes from above, and is a weapon that they can use against the militaries. I think when one can acknowledge that, when one is speaking law, one is doing so strategically, one can become much more aware of the effects—which is to say both the strengths and the weaknesses, or the dangers—of speaking law. Because when the human rights community throws its hands up in the air and says what you’ve just done is illegal or a war crime, they are producing, or co-producing, the discourse that the public will now be having: a conversation where we will all just be bickering about legality. They’re part of that problem, but I don’t think they necessarily see themselves as part of the problem. If one looks at Twitter, the conversation seldom goes beyond accusations of an act’s illegality and defenses of its legality.

In other words, you’d say we shouldn’t be arguing about, let’s say, whether it was okay or not to bomb AP’s building in Gaza on the basis of it being allegedly a dual-purpose structure. I tend to agree, but what would be the alternative to the accusation that it’s a war crime? Would it be to talk more systemically about how the situation in Gaza has become what it is, or to discuss Israeli apartheid, although that’s also a legal term? So I wonder, is it really different to instead argue whether or not there’s apartheid in Israel, which again is kind of a legalistic question?

I think with the apartheid case you’re right; it is a legal term, but when used, it triggers a whole set of political consequences involved in direct action with things like the Boycott, Divestment, and Sanctions campaign, and the fact that if there is international acceptance that Israel is committing crimes of apartheid, it would come with automatic sanctions that will be costly. That would induce change in a way that declaring a particular military action illegal does not, because, as we’ve discussed, the structure of international law means that the criminals investigate themselves and do not have to accept the jurisdiction of the ICC. The fact is that in the US, Israel, and other Western states, it’s very difficult politically to prosecute anyone who commits war crimes. It would be the same, I suppose, for the crimes of apartheid, but I think that no matter how much we accuse people of illegality when they bomb buildings, we will never reach a point where it leads to meaningful change, whereas when we talk about apartheid, that already exacts a cost.

Maybe because it describes a more systemic form of injustice?

Yes. And this is where it gets difficult, because on the left, we have been looking at structures of power for a long time and have developed incredibly sophisticated critiques. But registering them at the level of reality, making meaningful change in these populist and anti-political times, is seriously difficult, especially when one examines Israel and its exceptional status in the Western political imagination. But my latest way of thinking about it is to think increasingly—this sounds very liberal—in terms of accounting the costs of war in a much more radical sense than we traditionally do. So, asking, “What’s the difference between saying ‘bombing this building is illegal’ versus ‘bombing this building is wrong’?” is to imagine the military action as a cost of war which is part and parcel of such a mass system of violence that we might no longer want to be part of it. Not merely because we follow the consequences of destroying an apartment building. Firstly, you have the immediate death and destruction, the civilians who were killed, the surrounding area that has been destroyed. Then you have the cost of the reconstruction, but also the fact that you’ve created enemies because you’ve displaced a lot of people, but you’ve also taken out their electricity and stopped them from leaving, so they haven’t got sufficient health care—and we can enumerate these consequences and begin to understand the multiple reverberating effects of the actions which we took militarily. At the moment, Israel and the US can say they did a military operation and they get away with just reporting how many people were killed. But my latest project looks at what happens to injured people years on, the people that Israel shot recently in the Great March of Return, who are sixteen- to nineteen-year-olds and are going to have, on average, about twelve operations over the rest of their lives. They’re going to be impaired, they’re going to be unemployable. So I think that one needs to imagine all the costs of the war, both for them but also for us. Why would we want to be part of structures which cause such harm to them, but later on—as you see through discourses like “breaking the silence” in Israel, and the same is happening in the US, and it’s happening with the lawyers—also damage us, our own moral consciousness?

You don’t feel that when you’re in the military, and that’s because you are part of a culture of violence enabling that. My brother used to be a soldier in the UK Special Forces and he has his demons. That is a cost of war; it’s also a cost of war to the families of mainly men who come home and have abusive relationships, who become aggressive people. I’m not saying that all soldiers are aggressive, or domestic abusers—of course they are not. However, veterans do have a suite of well-documented problems, from mental health trauma to physical wounds, and often these traumas have consequences not only for them but also for those around them.

But to go back to my earlier point about the liberalism of my claim, I suppose it’s fanciful to think that, if we can just enumerate the “true” cost of war and render it legible to politicians and publics, we’ll simply be able to stop war or end the apartheid. It’s clearly going to take a lot more than that, but I nevertheless think that we must refuse the language and discourse of clean warfare, of ethical occupation, of moral militaries, and of the technological and algorithmic sublime, because what all of this does is edit out the violence or make it palatable when it is used against racialized populations. Of course, before we calculate the cost of war, we should perhaps return to Judith Butler’s question about what counts as a valid life and a loss worth mourning.

That reminds me of what Rob Nixon has called the “slow violence,” in a similar sense, of the long-term repercussions of actions that are not necessarily visible immediately.

Yes, and I think Nixon’s notion of slow violence is becoming more important as we gain more environmental awareness, as attitudes begin to change about environmental destruction and how slow the change is. It might serve as a sort of parallel or a metaphor for war.

Environmental destruction is also so often entangled in war, and will probably only get more so as the climate emergency gets more acute.

Yes, and it requires us to think about and anticipate ways of imagining and knowing the world that we are currently incapable of. And I think that would be the defense of an anti-war politics: it’s difficult to imagine what it might look like and what it might lead to, and it might present problems, but let’s try it. And I think that’s true for environmentalism too. We see economists saying, “We can’t grow at the same time as we reduce the carbon footprint,” and I think the answer is, “Let’s try it and see what happens, and then talk about the problems and solutions as we make a concerted attempt to do it, rather than avoid it because we say it’s difficult.”