War is not merely a political act, but also a real political instrument, a continuation of political commerce, a carrying out of the same by other means. All beyond this which is strictly peculiar to war relates merely to the peculiar nature of the means which it uses. — Carl von Clausewitz
Most people know this statement in its abbreviated form: “War is merely the continuation of policy by other means.”
Reversing Clausewitz’s maxim, war is not always conducted on the battlefield. Today, it is conducted in the halls of legislatures, world bodies, and academia and in courtrooms and the media. These wars are fought with words, resolutions, reports, and legal actions.
Two weeks ago, I attended a two-day conference cosponsored by Israel. Although Israel may have the dubious distinction of being number one in this arena, presenters consistently made the point that the United States is in the number two position and that Israel is the “canary in the mine” for the Western World.
The conference, “Legal Challenges in Israeli Policy and Advocacy,” was cosponsored by the Israeli consulate in New York, the Office of the Legal Adviser at the Israel Ministry of Foreign Affairs, and the American Association of Jewish Lawyers and Jurists. Its attendees came from the all over the United States, Canada, and Israel.
One of the most interesting panels was on Asymmetric Conflicts and the Rule of Law. Col. Sharon Afek, the IDF deputy military advocate general, spoke on “Legal Advice in the Heat of Armed Conflict.” Geoffrey Corn of South Texas College of Law spoke on “Human Rights and Humanitarian Law.”
As part of his presentation, Afek presented three videos of decisions that IDF pilots had to make during Operation Cast Lead in Gaza. In each case, Hamas terrorists had either launched or were about to launch rockets or mortars into Israel. In one video, the rocket had been launched and the mobile launcher and its personnel immediately took cover under a large building. In the other two videos, the crews were in a school yard and the courtyard of a mosque, respectively. In all instances, the pilots had acquired and locked in on the targets.
In all cases, there was the possibility of collateral civilian damage. In a matter of seconds, there had to be a decision whether to fire missiles.
How would that decision be judged? That is where Corn’s presentation on Human Rights and Humanitarian Law came in. But before considering what law will be used, there is a need to discuss who will apply the law and where. Welcome to the world of Lawfare.
The first tribunal that one would associate with this type of legal action is the International Criminal Court, which has jurisdiction over genocide, crimes against humanity, and war crimes. The ICC can exercise jurisdiction only if the accused is a national of a state submitting itself to ICC jurisdiction, if the crime took place in a state submitting to ICC jurisdiction, or there is a referral by the UN Security Council. The United States and Israel have “unsigned” the Rome Statute founding the ICC and do not consider themselves subject to the court’s jurisdiction.
Therefore, the ICC does not have universal jurisdiction over all member states of the UN. However, the courts of various countries, particularly those of the United Kingdom, Spain, and Belgium, have exerted universal jurisdiction over cases alleging genocide, crimes against humanity, and war crimes. Many of these cases have been brought by Palestinians against Israel. That has led, in the case of Britain, to arrest warrants being issued against current and former Israeli officials (and explains why officials like Tzipi Livni will not enter England).
Corn explained that the law being applied to these cases, Human Rights Law, is the wrong one; instead, the Humanitarian Law, formerly known as the Law of Armed Conflict and the Law of War, is what should be applied.
The bodies of law were developed for different purposes. Both aim to protect human life, and prohibit torture or cruel treatment, but Humanitarian Law is specifically concerned with the conduct of hostilities, combatants, and prisoner of war status.
Reflecting the debate in the Obama administration over civilian trials for terrorists, the two bodies of law are built on differing premises. In warfare, you seek the submission of an opponent, and the concept of “proportionality” — weighing the operation’s goals against the civilian toll — is relevant. Corn acknowledges, and has written elsewhere, that there is a “legitimate role for human rights norms” in relation to the treatment of noncombatants and prisoners of war, but argues that they are too often applied to situations of “combat power against operational opponents.”
As the Israeli philosopher Moshe Halbertal noted in his stinging critique of the Goldstone Report: “To create standards of morality in war that leave a state without the means of legitimate self-protection is politically foolish and morally problematic.”
As can readily be seen, this is an extremely complex area, but here is the Lawfare Project’s self-definition: “Lawfare denotes the use of the law as a weapon of war, or more specifically, the abuse of law and legal systems for strategic political or military ends.”
Somewhere, Clausewitz is smiling.