commission that would author the Report of the United Nations Fact Finding Mission on the Gaza Con£ict (Goldstone Report, 2009) alleging that the Israeli army and Hamas committed war crimes.2 Israeli officials described the attack as an act of ‘self-defence’, and claimed that the extensive harm to the civilian population was not, in and of itself, proof of violations of the laws of war. The Israeli government launched an international campaign to argue its legal position: it claimed that Hamas used the citizens of Gaza as human shields and fired indiscrim- inately at Israeli cities and towns.3 It tried to convince the international com- munity that this military operation, like the other mechanisms of its siege and occupation, were legal institutions in the sense that they are shaped by international humanitarian law. At the same time, and revealingly, Israeli censors have taken to striking out the names of authors of written reports and to masking the faces in photographs of military personnel involved. IHL ^ the body of law to which the term ‘war crimes’ refers ^ is made of customs and conventions that aim to reduce the human suffering caused by war and to protect civilians from attack. It is a restrictive legal regime. It aims to contain the tendency of violence to escalate towards the extremes. Within the chaos and horror of war it seeks to designate who can be attacked and how. Its function is to reduce rather than to eradicate suf- fering. IHL has in recent decades become an important part of the global political culture as exercised by states as a post-Cold War response to con- flicts in Africa and the Balkans. As a vocabulary for expressing political opposition to Western states it grew in importance in the face of the legal nihilism of George W. Bush era neo-conservatism. However, rather than simply exploring the illegality of Israel’s attack on Gaza, we must ask several other questions: Might a certain reading of the law have contributed to the proliferation of violence rather than to its containment? Might it be that the attack was not restrained by an extensive use of IHL ^ but rather that a certain interpretation and use of this law has enabled, not only the justifi- cation of violence, but crucially, the inflicting of greater levels of destruc- tion? Was the chaos, death and destruction perpetrated with the terrible force of the law? Figure 1 The destruction of destruction: The aftermath of the Gaza attack. Photograph: Kai Wiedenhoefer, 2009 12 Theory, Culture & Society 27(6) at Murdoch University on March 12, 2012 tcs.sagepub.com Downloaded from

The Landscapes of Lawfare The new frontiers of military development, which complement develop- ments in the area of surveillance and targeting, are being explored via a combination of legal technologies and complex institutional practices that are now often refereed to as lawfare ^ the use of law as a weapon of war. The former American general and military judge Charles Dunlap, credited with the introduction of this term, argued that lawfare demonstrates a com- pounded phenomenon (Dunlap, 2001 see also Dunlap, 2007). Lawfare could be used as a form of asymmetric warfare waged via the use of interna- tional law. In its ¢rst meaning it is concerned with the multiple ways that a weaker, non-state actor could constrain military action against it by claiming that war crimes have been committed. It is in this vein that Israel now claims that it is facing an unprecedented campaign of lawfare directed by a variety of international NGOs that seek not only to constrain its military but also to undermine the very legitimacy of the state of Israel.4 On the other hand, lawfare could also be used by the state. The legal scholar David Kennedy claimed that lawfare ‘demonstrates an emergent rela- tion between modern war and modern law’ (2006: 33), and that at present, and to a great extent, contemporary warfare is conditioned (rather than merely justified) by international law. It is in this way that IHL becomes the ethical vocabulary for marking legitimate power and justifiable death. ‘War is a legal institution because the institutions that fight ^ and those that seek to restrain the fight ^ are complex bureaucracies, managed by pro- fessionals’ (Kennedy, 2006: 33) with a shared language in IHL. Contemporary militaries are complex bureaucracies and contemporary wars and occupations are technical practices, governed by innumerable local, national, and international rules and regulations that involve the details of economic and social life, patterns of tra⁄c and sewage and devel- opment, as well as the logistics and deployment of force. Rather than being external to war, IHL is thus relevant to its making. Cases of colonial powers seeking to justify themselves with the rhe- toric of restraint and civility are almost a constant of colonial history. Indeed, the early stages of the body of regulation that would later develop into international law was formulated in the 17th and 18th centuries in order to regulate conflicts that arose between colonial powers. It has turned property law into the scaffolding upon which the territorial rights of states were allocated and those of native nations ignored. Similarly, the right to subjugate colonized people was derived from a delegation and aggregation of ‘natural rights’ of any individual in the ‘state of nature’. Written from a Western perspective of expansionism, it has acted to monopolize the means of legitimate violence, with the laws tailored to the tactics of Western war- fare, and to delegitimize the subaltern violence of the colonized.5 This may explain why colonial power developed legal terminologies concerning the proper form of violence in spaces which they otherwise considered as legal exceptions. Weizman ^ Legislative Attack 13 at Murdoch University on March 12, 2012 tcs.sagepub.com Downloaded from

We must be alert to another structural paradox that the laws of war still pose: for when they prohibit some things, they authorize others. Thus a line is being drawn between what is allowed and what is forbidden. This line is not a stable one rather, it is dynamic and elastic, and its path is com- plex and ever changing. An intense struggle is conducted around and for the purpose of shaping this borderline. In this process the law will be pulled and pushed in different directions, articulated in conflicting ways, by those with different strategic objectives. International organizations, non-governmental organizations (NGOs) and human rights groups seek to push it in one direction and state militaries seek to push it in the opposite one. National courts, the Red Cross and even certain individuals who are highly regarded authorities on IHL can also influence the path of this nor- mative line. Recently Hamas and the Iranian government have entered the squabble by announcing they are starting to conduct their own investiga- tions into and trials concerning war crimes in Gaza (Mackey, 2009). International law thus cannot be thought of as a static body of rules but rather as a diagram shaped by an endless series of di¡used and multiva- lenced border con£icts. The question is not which interpretation is right, but who has the political in£uence, the cultural authority or the military power to force their interpretation to become authoritative.6 The Logic of Destruction The planning for the Israeli attack of 2008^9 was conditioned by an unprec- edented number of international-law experts (Feldman and Blau, 2009a). They were employed mainly in advising military personnel on procedures, targets and operational alternatives. One of the o⁄cers in the international law unit of the Israeli military explained in Ha’aretz that their goal: ‘was not to fetter the army, but to give it the tools to win in a lawful manner’ (Feldman and Blau, 2009a). Israeli military spokespeople also seemed to have been trained in explaining the ongoing attack in the language of international humanitarian Figure 2 The destruction of destruction: The aftermath of the Gaza attack. Photograph: Kai Wiedenhoefer, 2009 14 Theory, Culture & Society 27(6) at Murdoch University on March 12, 2012 tcs.sagepub.com Downloaded from