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Eyal Weizman
665: The Leastof All PossibleEvils
The preemptive logic of the “lesser evil” is ofteninvoked to
justify the use of a lesser violence toprevent a supposedly
greater, projected one. Theargument conjures a cold calculus
ofdifferentials, one in which good and evil are seenas commodities
that are exchanged, transferred,speculated upon and in constant
circulation. But,as in our contemporary financial economy,
theLeibnitzian theodicy of “the best of all possibleworlds” is in
crisis, and out of its ruins emergesits twin – the necro-economy of
đ“the least of allpossible evils.” Eyal Weizman’s most recent
bookThe Least of All Possible Evils looks specificallyat the
structure of this argument, the predictiveand incalculable
conceptions of violence it putsforth, and its redeployment as a
means ofproviding a convenient bogeyman for justifyingalmost any
atrocity committed in the name ofeven more heinous hypothetical
consequences.Looking at the forces shaping international law, atthe
paradoxes of the humanitarian band-aid, andat the dark art of
forensic architecture, EW pointsto the very shape of a weak
negativity thatcharacterizes the withdrawal of any coherentmission
for the left. đđđđđđđđđđThis article is composed of
excerptedpassages from The Least of All Possible Evils,chosen and
sequenced by the editors to provideanother point of reflection on
the theme of thisissue – a crisis in the conjunction of violence
andeconomy. The excerpts are drawing mainly fromthe first three
chapters – on the historical originsof the lesser evil argument, on
its contemporarydeployment as humanitarian aid, and on thepotential
for unlocking violence by employing theinherent elasticity of the
law.đđđđđđđđđđ
***đđđđđđđđđđIf, as a friend recently suggested, we oughtto
construct a monument to our present politicalculture as an homage
to the principle of the“lesser evil,” it should be made in the form
of thedigits 6-6-5 built of concrete blocks, andinstalled like the
Hollywood sign on hillsides orother high points overlooking city
centers. Thisnumber, one less than the number of the beast –that of
the devil and of total evil – might capturethe essence of our
humanitarian present,obsessed as it is with the calculations
andcalibrations that seek to moderate, ever soslightly, the evils
that it has largely caused.đđđđđđđđđđThe principle of the lesser
evil is oftenpresented as a dilemma between two or morebad choices
in situations where available optionsare – or seem to be – limited.
The choice madejustifies harmful actions that would otherwise
beunacceptable, since it allegedly averts evengreater suffering.
Sometimes the principle ispresented as the optimal result of a
general field
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Film still from Sylvain George's documentary on North African
and Middle Eastern refugees' attempt to reach the U.K.. Here, one
of the characters shows hisobliterated fingertips – a strategy to
evade identification through fingerprinting. May they rest in
revolt (Figures of wars I), 2011. Copyright: Independencia.
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of calculations that seeks to compare, measure,and evaluate
different bad consequences inrelation to necessary acts, and then
to minimizethose bad consequences. Both aspects of theprinciple are
understood as taking place within aclosed system in which those
posing thedilemma, the options available for choice, thefactors to
be calculated, and the very parametersof calculation are
unchallenged. Each calculationis undertaken anew, as if the
previousaccumulation of events has not taken place, andthe future
implications are out of bounds.đđđđđđđđđđThose who seek to justify
necessary evils as“lesser” ones, especially when searching for
arationale to explain recent wars and militaryexpeditions, like to
appeal to the work of thefourth-century North African
philosopher-theologian St. Augustine. Augustine’s rejection ofthe
principle of Manichaeism – a world strictlydivided into good and
evil – meant that he nolonger saw evil as the perfect mirror image
of thegood; rather, in platonic terms, he saw evil as ameasure of
the absence of good. Since evil,unlike good, is not perfect and
absolute, it isforever measured and calibrated on a
differentialscale of greater and lesser. Augustine taught thatit is
not permissible to practice lesser evils,because to do so violates
the Pauline principle“do no evil that good may come.” But – and
herelies its appeal – lesser evils might be toleratedwhen they are
deemed necessary andunavoidable, or when perpetrating an evil
resultsin the reduction of the overall amount of evil inthe
world.đđđđđđđđđđMore recently, Pope Benedict XVI hasappealed to the
lesser evil principle in a decreepermitting the use of condoms in
places withhigh rates of HIV. Similar to this logic
ofcontraception, some in the Vatican thought thatimplicit support
for the government of SilvioBerlusconi, albeit plagued by sin,
ridicule, andcorruption, might be considered as the lesser evilin
protecting Christian values. In cases such asthese, the economy of
the lesser evil is alwayscited as a justification for breaching
rigid rulesand entrenched dogma; indeed, it is very oftenused by
those in power as the primaryjustification for the very notion of
“exception.”đđđđđđđđđđIn fact, Augustine’s discourse of the
lesserevil was developed at a time when the churchhad started to
participate in the politicalgovernment of its subjects and had
acquiredconsiderable financial and military power.Through the ages,
the Christian church saw itstask as keeping human evil to a
minimum. Itpastorally ruled over a vast and complexintrapersonal
economy of merits and faults – ofsin, vice, and virtue – operating
according tospecific rules of circulation and transfer,
withprocedures, analyses, calculations, and tactics
that allowed the exercise of a specific interplaybetween
conflicting goods and degrees of evil. Inhis lectures on the
origins of governmentality,Michel Foucault argued that, on the
basis of this“economical theology,” the modern, secular formof
governmental power has itself taken on theform of an
economy.1đđđđđđđđđđThe theological origins of the lesser
evilargument cast a long shadow over the present. Infact, the idiom
has become so deeply ingrained,and is invoked in such a
staggeringly diverse setof contexts – from individual situational
ethicsand international relations, to attempts to governthe
economics of violence in the context of the“War on Terror” and the
efforts of human rightsand humanitarian activists to maneuver
throughthe paradoxes of aid – that it seems to havealtogether
replaced the position previouslyreserved for the term “good.”
Moreover, the veryevocation of the “good” seems to invokeeverywhere
the utopian tragedies of modernity,in which evil seemed to lurk in
a horribleManichaeistic inversion. If no hope is offered inthe
future, all that remains is to insure ourselvesagainst the risks
that it poses, moderate andlessen the collateral effects of
necessary acts,and tend to those who have suffered as a
result.đđđđđđđđđđIn relation to the War on Terror, the terms ofthe
lesser evil were most clearly and prominentlyarticulated by Michael
Ignatieff, former humanrights scholar and leader of Canada’s
LiberalParty. In his book The Lesser Evil, Ignatieffsuggested that
in “balancing liberty againstsecurity,” liberal states should
establishmechanisms to regulate the breach of somehuman rights and
legal norms, and allow theirsecurity services to engage in forms
ofextrajuridical violence – which he saw as lesserevils – in order
to fend off or minimize potentialgreater evils, such as terror
attacks on civiliansin Western states.2đđđđđđđđđđIf governments
need to violate rights in aterrorist emergency, it should be done,
hethought, only as an exception and according to aprocess of
adversarial scrutiny. “Exceptions,”Ignatieff states, “do not
destroy the rule but saveit, provided that they are temporary,
publiclyjustified, and deployed as a last resort.”3đđđđđđđđđđThe
lesser evil emerges here as a pragmaticcompromise, a “tolerated
sin” that functions asthe very justification for the notion of
exception.State violence in this model is a necro-economyin which
various types of destructive measuresare weighed in a utilitarian
fashion, not only inrelation to the damage they produce, but to
theharm they purportedly prevent and even inrelation to the more
brutal measures they helprestrain. In this logic, the problem
ofcontemporary state violence resembles an all-too-human version of
the previously mentioned
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mathematical minimum problem of the divineorder, one tasked with
determining the smallestlevel of violence necessary to avert the
greatestharm. For the architects of contemporary war,this balance
is trapped between two poles:keeping violence at a level low enough
to limitcivilian suffering, yet high enough to bring adecisive end
to a given war.4đđđđđđđđđđMore recent works by legal scholars
andlegal advisers to states and militaries sought toextend the
inherent elasticity of the system oflegal exception proposed by
Ignatieff into waysof rewriting the laws of armed
conflictthemselves.5Lesser evil arguments are now usedto defend
anything from targeted assassinationsand mercy killings, to house
demolitions,deportation, and torture,6 to the use of(sometimes)
non-lethal chemical weapons, theuse of human shields, and even “the
intentionaltargeting of some civilians if it could save
moreinnocent lives than they cost.”7 In a macabremoment, it was
even suggested that the atomicbombings of Hiroshima and Nagasaki
might betolerated under the principle of the lesser evil.Faced with
a humanitarian A-bomb, one mightwonder what, in fact, might qualify
as a greaterevil. Perhaps it is time for the differentialaccounting
of the lesser evil to replace themechanical bureaucracy of the
“banality of evil”as the idiom to describe the most
extrememanifestations of violence. Indeed, it is throughthis use of
the lesser evil that self-proclaimeddemocratic societies can
maintain regimes ofoccupation and neocolonization.
DisproportionalityMilitary violence endeavors not only to
bringdeath and destruction to its intended targets butalso to
communicate with its survivors – thosethat remain, those not
killed. The laws of warhave become one of the ways in which
militaryviolence is interpreted by those who experienceit, as well
as by global bystanders. It could thusbe said to have a pedagogical
pretension. It is aviolence that should not only convince, but
alsomanufacture the very possibility for conviction.đđđđđđđđđđIn
contemporary war, the principle ofproportionality has become the
main translatorof the relation between violence, law, and
itspolitical meaning. The communicative dimensionof military
threats can function only if gaps aremaintained between the
possible destructionthat an army is able to inflict and the
actualdestruction that it does inflict. It is through theconstant
demonstration of the existence andsize of this gap that a military
communicateswith the people it fights against and
occupies.Sometimes the gap opens wide, such as whenthe military
governs the territories it occupies –its violence in a state of
potential, existing as a
set of threats and possibilities that are not, forthe time
being, actualized. In a state of war, thegap closes – but rarely
does it do so completely.Even in the most brutal wars, something of
thegap still exists as the stronger side restrains andmoderates its
full destructive capacity. Restraintis also what allows for the
possibility of furtherescalation, an invitation for the victims
violenceto make their own cost-benefit calculation andopt for
consent. A degree of restraint is thus partof the logic of almost
every military operation:however bad military attacks may appear to
be,they can always get worse. This is measuredagainst “the
potentiality of the worst” – anoutburst of performative violence
without rules,limits, proportion, or measures – which has to
bedemonstrated from time to time.đđđđđđđđđđThe gap thus
communicates the potentialfor destruction without the need for
furtherviolence. When the gap between the possible andthe actual
application of force closes completely,violence loses its function
as a language. Warbecomes total war – a form of violence strippedof
semiotics, in which the enemy is expelled,killed, or completely
reconstructed as a subject.Degrees in the level of violence are
preciselywhat makes war less than total. Game theory, asapplied by
military think tanks since the earlyCold War days of RAND, is
conceived to simulatethe enemy’s responses, and help manage the
gapbetween actual and potential violence. Thispractical form of
military restraint is now oftenpresented as adherence to the laws
of war.đđđđđđđđđđDisproportionality – the breaking of theelastic
economy that balances goods and evils –is violence in excess of the
law, and one that isdirected at the law. Disproportional violence
isalso the violence of the weak, the governed,those who cannot
calculate, and those who areoutside of the economy of calculations.
Thisviolence is disproportional because it cannot bemeasured and
because, ultimately, having itsjustice not reflected in existing
law, it comes torestructure the basis of existing law
altogether.đđđđđđđđđđThe calculations of proportionality as
atechnique of management and government – themanagement of violence
and the government ofpopulations – is undertaken by the powerful
side“on behalf” of those it subjugates. Moreover thispower is in
fact grounded in the very ability tocalculate, count, measure,
balance and act onthese calculations. Inversely, to make
oneselfungovernable, one must make oneselfincalculable,
immeasurable, and uncountable.
Minima Moralia“During the Bosnia war I was at a crossroads.
Onthe one hand I continued to pursue positionsinherited from the
Cold War; on the other, I wastrying to get my bearings in the new
world we
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Inscriptions by young prisoners in Chambre Noire, Guéckédou
Civilian Prison, Guinea in prison cell. Photographer Julie Remy
accompanied MSFin their mission in this prison.
were suddenly living in after the Berlin wall camedown” – so
said Rony Brauman, president ofDoctors Without Borders (Médecins
SansFrontières, or MSF), to the philosopher andpublisher Michel
Feher in a famous interview.Brauman went on to note that at the
beginning ofthe wars of the former Yugoslavia, “we were
veryexplicitly influenced by Hannah Arendt, [as]Bosnia seemed like
the traditional confrontationbetween liberal democracy and
totalitarianism …and I responded in the liberal way, by raising
theflag of human rights.”8 But as raising the flag ofhuman rights
meant military intervention, thisposition also clashed with
Brauman’s aversion toa humanitarianism that could be absorbed
intostate politics and military strategy.9 Moreover, hethought
making public MSF’s opinion on juridicalcategories such as “‘crimes
against humanity’ –which has always had an implicit reference to
theNazi camps – has political, military, and legalconsequences
beyond our control. The languageone uses both frames the problem
anddetermines the kind of response. To say ‘crimesagainst humanity’
is to call for immediatemilitary intervention to stop it – and this
isbeyond the mandate of humanitarianism.”10đđđđđđđđđđIn the face of
this bold humanitarian vision,with its violent cosmopolitan order
of
geopolitical statements and calls forhumanitarian intervention,
Brauman started topromote humanitarianism in its minimalist
form:humanitarianism as the practice of lesser evils.The lesser
evil, in the way that Brauman refers toit, is a humanitarianism
that sustains lifewithout seeking to govern or managepopulations,
without making political claims ontheir behalf or seeking to
resolve root causes ofconflicts. It is a humanitarianism
thatunashamedly and impartially deals with theproblems of “bare
life.” This concept, designatingthe vulnerability of a life
stripped of any civil andpolitical rights that might protect it,
comes fromthe philosopher Giorgio Agamben. In recentyears, “bare
life” has been popularized in thecontext of the critique of
humanitarian action.11In what might be defined as the critique of
thecritique of humanitarianism, Brauman made sureto adopt the very
terms in which he wascriticized: “Of course, we take care of the
bodies.We as aid workers try to maintain life … I would,on the
contrary, feel very uncomfortable if wewere trying to do more – to
control or penetratepeople’s minds. What people ask us, what
theyexpect from us, is to help them survive. For therest, they can
manage by themselves.”12“Upholding a vision of humanitarianism as
the
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Protest monument at the Tijuana-San Diego crossing for those who
have died attempting to cross the US-Mexican border. Each coffin
represents a year andthe number of dead.
policy of the lesser evil,” in Brauman’s view, is atemporary
autonomous act of solicitude that “isabout little more than the
caring for bodies.”Politics based in medicine, he states, must
beabandoned in exchange for the obvious: theactual practice of
humanitarianism and clinicalmedicine. It is in this sense that
“accepting thepolicy of the lesser evil … becomes one of theways to
live with the contradiction [ofhumanitarianism] without completely
becominga victim of it.”13đđđđđđđđđđBut this is a different
conception of the“lesser evil” argument than the one
Braumanrejected in his withdrawal from Ethiopia, where itconcerned
collaboration with “totalitarians.” It isalso different than that
articulated by the likes of(Bernard) Kouchner and (Bernard-Henri)
Lévy,who conceive the idea from the point of view ofthe state and
Western values, in the context offighting in the name of the
“lesser evil” ofdemocracy. It is also different from the
“ethicalrealism” of Michael Ignatieff, in which thepractice of the
lesser evil demands theimposition of ethical constraints on
states’actions while in the pursuit and defense of“moral goals”
such as freedom, human rights,and democracy.14đđđđđđđđđđAgainst
what Brauman calls the “imperialpolicy of humanitarianism,” his
meaning of thelesser evil designates the project ofhumanitarianism
at its most minimal – as onethat “takes no political stand, makes
no claim to
transform society, and doesn’t come to make waror peace, promote
economic development, helpadminister justice, or export democracy
orhuman rights values.”15 These, he thinks, are notnecessarily bad
things in themselves, but theyare the responsibility of the
politicians and havelittle to do with humanitarianism as such,
whichin its minimal, independent, impartial, andbarest meaning
should seek to provide nothingmore than immediate, short-term
relief andmedical aid – what David Rieff, following BertoltBrecht,
called “a bed for the night.” Suchhumanitarianism “won’t change the
world” – nordoes it seek to.16đđđđđđđđđđThis minimal approach to
humanitarianismhas found its spatial manifestation in whatBrauman
called a “humanitarian space.” In hisconception, the humanitarian
space is a form ofspatial practice rather than an actual space or
aterritorial designation. Against the tendency ofconflicts since
the 1980s to generate integratedand entangled
political-military-humanitarianspaces, mainly around refugee camps,
this spaceis conceived in order to hold relief work at adistance
from political and military practice.đđđđđđđđđđDriving the
humanitarian present is nolonger a sense of naive yet
dangerouscompassion, but rather a highly specialized andconcerted
international effort to managepopulations that are seen as posing
risks. In hiswork on the refugee camps of Africa, theanthropologist
Michel Agier refers to
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contemporary humanitarianism as nothing lessthan “a distant and
delegated form ofmanagement, a government without citizens.”17He
describes the humanitarian zones as heavilyguarded and tightly
policed “waiting rooms onthe margins of the world,” built and
maintainedfor the purpose of the “total government of theplanet’s
populations who are most unwanted andundesirable.” In them, the
well-meaninghumanitarians “find themselves acting as low-cost
managers of exclusion on a planetaryscale.”18 Refugee camps are
part of an overallsystem of migration control, he says, intended
toprovide for displaced populations at a discreetdistance from
Western shores. They are an islandin an archipelago of
extraterritoriality, which alsoincludes extended border control
practices anddetention centers. Humanitarianism’s earlierobsession
with identifying and sorting outperpetrators from victims is here
renderedirrelevant as both categories morph into that ofthe
potential migrant, whose entry into Westerncountries must be
stopped at any price.Displaced populations become the concern ofthe
international community precisely becauseof the risks they pose.
The fear of migration,crime, and terrorism is conceived of as being
ininverse relation to the well-being of populations.This tendency
is best captured by the term“human security,” under which every
dimensionof human life – from food and shelter toeducation – is
measured within a shiftingcalculus of
risk.đđđđđđđđđđHumanitarianism should indeed aim toprovide no more
than the bare minimum tosupport the revival of life after violence
anddestruction. As long as refugees are alive, thepotential for
political transformation still exists.The very life of refugees,
their life as refugees,poses a potent political claim
withtransformative potential, one that represents afundamental
challenge to the states and statesystem that keep them displaced.
This is thereason that generations of political leaders, fromthe
Democratic Republic of the Congo through toKosovo and Palestine,
emerge from among therefugees to become the vanguard of
politicalstruggles. The refugees’ return to politics
hasunpredictable consequences, which are andmust always remain
beyond the horizons ofhumanitarians and aid groups. Only
whenhumanitarianism seeks to offer temporaryassistance rather than
to govern or develop canthe politics of humanitarianism really
create aspace for the politics of refugees themselves.This shift
demands that we think about thepolitics of aid not only from the
perspective ofthe paradoxes and dilemmas of the reliefworkers and
the people that send them, not onlyconcerning the problems of
humanitarian
cooption, evasion, government and refusal, butprimarily from the
question of the politics ofrefugees, their claims, their rights and
theirpotential actions, their wishes, their exerciseand their
evasion of power, their potential return.It might be that only with
the ultimate refusal ofaid at a time of their choice – with the
rejectionof the very apparatus that sometimes keepsthem in good
health, and sometimes operates tomanage their exclusion – with
refugeesconstructing their own spaces, self governing,posing
demands and acting upon them – that thepotentiality of their
political life will actualize.đThen, where there were camps there
could becities.
A computer monitor taken from the Royal Bank of Scotland is
hurledthrough a window during G20 disturbances in the City of
London,2010. Photo: Carl de Souza/AFP/Getty
Lawfare
If, therefore, conclusions can be drawnfrom military violence,
as being primordialand paradigmatic of all violence used fornatural
ends, there is inherent in all suchviolence a lawmaking
character.19
– Walter Benjamin
Israel’s bombing and invasion of Gaza in thewinter of 2008–9
marked the culmination of itsviolence against the Palestinians
since theNakba of 1948, and resulted in widespreadinternational
allegations that Israel hadcommitted war crimes. It was also the
assault inwhich Israeli experts in internationalhumanitarian law –
the area of the law thatregulates the conduct of war – were
moreinvolved than ever before. Since the 2006Lebanon War, the
Israeli military has becomeincreasingly mindful of its exposure
tointernational legal action. Preparations for the
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next conflict included those in the domain of law,and new “legal
technologies” were introducedinto military matters.đđđđđđđđđđThis
development gives rise to a series ofrelated questions. Might it be
that these legaltechnologies contributed not to the containmentof
violence but to its proliferation? That theinvolvement of military
lawyers did not in factrestrain the attack – but rather, that
certaininterpretations of international humanitarian lawhave
enabled the inflicting of unprecedentedlevels of destruction? In
other words, has themaking of this chaos, death, and
destructionbeen facilitated by the terrible force of the
law?đđđđđđđđđđIn more domains than one, the elastic andporous
border has become the contemporarypathology of Israel’s regime of
control. Itmanifests itself in a variety of ways – one suchbeing
the elasticity that military lawyers identifyand mobilize in
interpreting the laws of war.đđđđđđđđđđAs such, the laws of war
pose a paradox tothose protesting in their name: while theyprohibit
some things, they authorize others. Andthus a line is drawn between
the “allowed” andthe “forbidden.” This line is not stable and
static;rather, it is dynamic and elastic and its path isever
changing. An intense battle is conductedover its route. The
thresholds of the law will bepulled and pushed in different
directions bythose with different objectives. The questionhinges on
which side of the legal/illegal divide acertain form of military
practice falls.International organizations such as the UN andthe
ICRC (International Committee of the RedCross), large NGOs and
human rights groups, andalso some highly regarded academic
authoritieson international humanitarian law have themeans to push
the line in one direction – to placecontroversial military
practices on the prohibitedside – while state militaries and their
apologistsseek to push it in the opposite direction.International
law can thus not be thought of as astatic body of rules but rather
an arena in whichthe law is shaped by an endless series ofdiffused
border conflicts.đđđđđđđđđđAccording to Eitan Diamond, the
legalscholar and adviser for the ICRC in Israel, “thearchitecture
of international humanitarian law istypified by ‘rigid lines of
absolute prohibition’and ‘elastic zones of discretion.’” The
rigidprohibitions are derived, he states, from thelaw’s origins in
the nineteenth century, “a timewhen legal thought was dominated by
apositivist-formalist approach that conceived oflaw as a closed
system distinguished frompolitics and ethics.” Today, he fears,
“states andtheir advocates are using arguments based onthe logic of
the ‘lesser evil’ to subvert the law’sabsolute provisions and to
subject them tomalleable cost-benefit calculations.”20
đđđđđđđđđđIndeed, new frontiers of military practiceare being
explored via a combination of legaltechnologies and complex
institutional practicesthat are now often referred to as “lawfare”
– theuse of law as a weapon of war. Lawfare is acompounded
practice: with the introduction andpopularization of international
law incontemporary battlefields, all parties to aconflict might
seek to use it for their tactical andstrategic advantage. The
former Americancolonel and military judge Charles Dunlap, whowas
credited with the introduction of this term in2001, suggested that
“lawfare” can be defined as“the strategy of using – or misusing –
law as asubstitute for traditional military means toachieve an
operational objective.”21 In the handsof non-state actors, Dunlap
says, the “lawfareeffect” is created by an interaction
betweenguerrilla groups that “lure militaries to conductatrocities”
and human rights groups that engagein advocacy to expose these
atrocities, and whouse whatever available means for litigation
theyhave. In a similar vein, Israel now often claimsthat it faces
an unprecedented campaign oflawfare, which threatens to undermine
the verylegitimacy of the state. Lawfare is used tacticallyby state
militaries themselves. In this context, itrefers to the multiple
ways by whichcontemporary warfare is conditioned, rather thansimply
justified, by international law.22 In bothcases, international law
and the systems ofcourts and tribunals that exercise and enact
itare not conceived as spaces outside the conflict,but rather as
battlegrounds internal to it.đđđđđđđđđđIt is within the “elastic
zones of discretion”that Israeli military lawyers find
enormouspotential for the expansion of military action.Daniel
Reisner, a former chief internationallawyer for the Israeli
military, argued thatbecause international humanitarian law is not
somuch a code-based legal system but aprecedent-based legal corpus,
state practice cancontinuously shift it.đđđđđđđđđđInternational law
is a customary law thatdevelops through a historic process. If
states areinvolved in a certain type of military activityagainst
other states, militias, and the like, and ifall of them act quite
similarly to each other, thenthere is a chance that this behavior
will becomecustomary international law.23đđđđđđđđđđIt is in this
sense that international lawdevelops through its violation. In
modern war,violence legislates: “If the same processoccurred in
criminal law, the legal speed limitwould be 115 kilometres an hour
and income taxwould be 4 per cent.”24đđđđđđđđđđReisner is proud to
have been the firstinternational lawyer to have defended, at
therequest of then-Prime Minister Ehud Barak, thepolicy of
“targeted assassinations” towards the
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end of 2000, when most governments andinternational bodies
considered the practiceillegal. “We invented the targeted
assassinationthesis and we had to push it. At first there
wereprotrusions that made it hard to insert easily intothe legal
molds. Eight years [and, as hesubsequently said in this interview –
by way ofreference to 9/11 – ‘four planes’] later it is in
thecenter of the bounds of legitimacy.”25đđđđđđđđđđAsa Kasher, a
professor of ethics at Tel AvivUniversity, has worked with Reisner
to provide anethical and legal defense for targetedassassination.
He talks in similar terms aboutthe nature of law and the ways in
which it mightbe transformed:đđđđđđđđđđWe in Israel have a crucial
part to play in thedeveloping of this area of the law
[internationalhumanitarian law] because we are at theforefront of
the war against terror, and [thetactics we use] are gradually
becomingacceptable in Israeli and in international courtsof law …
The more often Western states applyprinciples that originated in
Israel to their ownnon-traditional conflicts in places
likeAfghanistan and Iraq, then the greater thechance these
principles have of becoming avaluable part of international law.
What we dobecomes the law.26đđđđđđđđđđThe actions of the Israeli
state against Gazamay become acceptable in law. The siege –ongoing
since 2007 – the 2008–9 invasion, andthe 2009 attack on an
international flotillacarrying supplies into the enclave have all
beencarried out with relative impunity, and do notappear to have
significantly affected Israel’sinternational standing. Each of
these forms ofaggression contains within it a multiplicity
ofsmall-scale practices and incidents: restrictingthe supply of
food to the point of starvation;targeted assassinations; sending
advancewarnings that then allow the military to kill thosecivilians
who choose not to evacuate;27 attackson activists in international
waters; the use ofwhite phosphorus in inhabited areas – the
listgoes on. In these acts – if Israeli lawyers havetheir way – lie
the seeds of new legislation.đđđđđđđđđđWorking at the margins of
the law is one wayto expand them. For violence to have the powerto
legislate, it needs to be applied in the grey,indeterminate zone
between obvious violationand possible legality, and then to be
defendeddiplomatically and by legal opinion. Indeed, thelegal
tactics sanctioned by military lawyers inIsrael’s invasion of Gaza
in 2008–9 were framedin precisely this way. “When something’s in
thewhite zone, I’ll let it be done, if it’s in the black I’llforbid
it, but if it’s in the grey zone then I’ll takepart in the dilemma,
I don’t stop at grey,” saidReisner.đđđđđđđđđđThe invasion therefore
did two
simultaneous and seemingly paradoxical things:it both violated
the law and shifted itsthresholds. This kind of violence not
onlytransgresses but also attacks the very idea ofrigid limits. In
this circular logic, the illegal turnslegal through continuous
violation. There isindeed a “law-making character” inherent
inmilitary violence. This is law in action, legislativeviolence as
seen from the perspective of thosewho write it in
practice.đđđđđđđđđđThis use of the law has much in commonwith that
of the George W. Bush Administration’smisappropriation of the
Office of Special Counselin the Justice Department, in order to
figure out away to legalize the use of torture. Inherent in thiswas
the clear intention to stretch the law as faras possible without
actually breaking it.28 In thisexample, US Department of Justice
attorneyJohn Yoo used the balancing of interests toauthorize
certain forms of torture. His famoustorture memos were grounded in
an Israeliprecedent: relying on what is essentially
aproportionality analysis, the 1987 Israelicommission of inquiry
into the methods ofinvestigation in the General Security Service
(theLandau Commission) arrived at the conclusionthat the
prohibition on torture is not absolute,but is rather based “upon
the logic of the lesserevil.”đđđđđđđđđđThus, “the harm done by
violating aprovision of the law during an interrogation mustbe
weighed against the harm to the life or personof others which could
occur sooner or later.”29Some legal scholars have suggested that
Yoo’slegal advice in itself might be considered
acrime.đđđđđđđđđđSimilar lines of legal argument are inspiredby a
strand of legal scholarship known as“critical legal studies,” an
approach thatemerged together with other
post-structuralistdiscourses at the end of the 1980s. Critical
legalstudies scholars aimed to expose the way thelaw is made – the
workings of power in themaking and enactment of law – to
challengelaw’s normative account and to offer an insightinto its
internal contradictions andindeterminacies. It was, broadly
speaking, acritical, left-leaning practice, which attemptedto
deploy law at the service of a sociallytransformative agenda. But
when internationallaw stands as an obstacle in the way of
statemilitaries, it is easy to see why military lawyerswould adopt
the attitude of those scholarsseeking to challenge rigid
definitions and exposethe law as an object of critique and
contestation.Today, when the creative interpretation of the lawis
exercised by state and military lawyers, it isprimarily human
rights and antiwar activists whoinsist on the dry letter of the
law. Have we gonefull circle?
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đđđđđđđđđđIn the age of lawfare, the elastic nature ofthe law,
and the power of military action tostretch it, those appealing for
justice in the nameof the law need to be aware of its double
edge.đđđđđđđđđđGaza is a laboratory in more than one sense.It is a
hermetically sealed zone, with all accesscontrolled by Israel
(except the border withEgypt). Within this enclosed space, all
sorts ofnew control technologies, munitions, legal andhumanitarian
tools, and warfare techniques aretried out on its
million-and-a-half inhabitants.The ability to remotely control
large populationsis also tested, before these technologies
aremarketed internationally. Most significantly ofall, it is the
thresholds that are tested andpushed: the limits of the law, and
the limits ofviolence that can be inflicted by a state and
beinternationally tolerated. This limit, newlydefined with every
attack, will become the newthreshold of what can be done to people
in thename of the War on Terror. When the legislativeviolence
directed at Gaza unlocks the chaoticpowers of destruction that lie
dormant within thelaw, the consequence will be felt by
oppressedpeople everywhere.
EpilogueIs there, then, a horizon from which we can seebeyond
the logic of the lesser evil? The epilogueof the book provides one
such example.đđđđđđđđđđThe predominant conceptual frame bywhich
refugee camps are understood is one inwhich every physical
improvement at present is apotential threat to the provisional
nature of thecamp. Urbanizing the camp, making itpermanent, might
sacrifice the “right of return”to which its temporariness otherwise
testifies.But a new generation of scholars and architects–
prominent among them are Ismael SheikhHassan and Sari Hanafi in
Lebanon, andAlessandro Petti, Nasser Abourahme and SandiHillal in
Palestine – have attempted to challengethe conceptualization of
refugee habitats asmere repositories of national memory.30
Thestronger the camp, they argue, the better thechances of it
becoming a political space, aplatform on which refugees’ political
claimscould be articulated and the struggle continued.In Nahr
el-Bared in Lebanon, after its destructionby the Lebanese army in
2007, and in the campsof Gaza and those of the West Bank
thatshouldered much of the burden of ongoingresistance, they worked
with refugeecommunities and UN agencies to pick up therubble, to
design and promote programs forcamp improvement and experimented
with newpedagogical platforms in it.31đđđđđđđđđđFor those that
remained in the camp, andfor those that live just outside it, they
sought toreinforce the camp as a vibrant living space with
community services and political institutions. Animproved camp
with open access, public spaces,new forms of educational
institutions, updatedphysical and communication infrastructure
andbetter homes is not a negation of the right ofreturn but rather
a tool for its reinforcement.Such a camp could provide a platform
forpolitical mobilization. This point of view rejectsboth the
accommodation to an unjust politicalreality and the politique du
pire that seeks tomaintain misery and invest it with
politicalmeaning. The reconstruction of Gaza, when andif it is made
possible, might mean the arrival ofsome international organizations
and statedonors with a multiplicity of agendas and themeans to
pursue them. Facing this well-meaningaid, refugees will have to
adopt a delicateprocess of navigating between poles. Homesmust be
rebuilt, infrastructure laid out, campsand life improved, not
instead of but rather inorder to support political rights and
thecontinuous struggle to achieve them. This willstill be much less
than perfect, but it is certainlynot the choice of the lesser
evil.đđđđđđđđđđ×
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Eyal Weizman is an architect, Professor of VisualCultures and
director of the Centre for ResearchArchitecture at Goldsmiths,
University of London.Since 2011 he also directs the European
ResearchCouncil funded project, Forensic Architecture - on theplace
of architecture in international humanitarianlaw. Since 2007 he is
a founding member of thearchitectural collective DAAR in Beit
Sahour/Palestine.His books include Mengele's Skull (with
ThomasKeenan at Sterenberg Press 2012), ForensicArchitecture
(dOCUMENTA13 notebook, 2012), TheLeast of all Possible Evils
(Nottetempo 2009, Verso2011), Hollow Land (Verso, 2007), A Civilian
Occupation(Verso, 2003), the series Territories 1,2 and 3,
YellowRhythms and many articles in journals, magazines andedited
books. Weizman is a regular contributor and aneditorial board
member for several journals andmagazines including Humanity,
Inflexions and Cabinetwhere he has edited a special issue on
forensics (issue43, 2011).
đđđđđđ1Michel Foucault,đSecurity,Territory, Population: Lectures
atthe College de France1977–1978, ed. Arnold I.Davidson, trans.
GrahamBurchell, (London: PalgraveMacmillan, 2007), 164–73, 183.
đđđđđđ2Michael Ignatieff,đThe LesserEvil: Political Ethics in an
Age ofTerror, (Princeton: PrincetonUniversity Press, 2004).
đđđđđđ3Ibid., xiv.
đđđđđđ4These refer respectively tođjus inbello andđjus ad
bellum.
đđđđđđ5A former Israeli military lawyerGabriella Blum opines
that ifinternational humanitarian law“is designed to
minimizehumanitarian suffering withinthe constraints of war, then
it isnot at all clear why measuresintended to further
minimizesuffering … a choice for thelesser evil – cannot serve as
ajustification,” she sayseffortlessly, “for suspending thelaw in
the name of the law.”Gabriella Blum, “The Laws ofWar and the
‛Lesser Evil,’” (35YJIL 1, 2010), 3.
đđđđđđ6Relying on what is essentially aproportionality analysis,
theIsraeli Commission of Inquiryinto the Methods ofInvestigation of
the GeneralSecurity Service RegardingHostile Terrorist
Activity,otherwise known as the LandauCommission, of 1987
reachesthe conclusion that theprohibition on torture is
notabsolute, but is rather based, inits own words, upon the logic
of“the lesser evil.” Thus, “theharm done by violating aprovision of
the law during aninterrogation must be weighedagainst the harm to
the life orperson of others which couldoccur sooner or LATER”
[upper-case in the original]. USDepartment of Justice attorneyJohn
Yoo similarly referred to abalance of interests whenauthorizing
forms of tortureduring the Bush Administration.Itamar Mann and Omer
Shatz,“The Necessity Procedure: Lawsof Torture in Israel and
Beyond,1987–2009,”đLegalleft, 2011,
seelegalleft.org/wp-content/uploads/2011/02/2-necessity_procedure.pdf.
đđđđđđ7Ibid., 3.
đđđđđđ8Brauman, “Learning fromDilemmas,” 136.
đđđđđđ9During the other prominentcrises of the 1990s
hispronouncements and actionscalled for humanitarianism to
bepositioned away from militaries– Western or otherwise. Duringthe
war in Somalia it was aboutthe militarization of the
“humanitarian mission thatended up shooting many of thepeople it
came to protect.Several months after themassacres in Rwanda it
wasabout the way that the Hutumilitias that undertook themwere
using international aid inorder to regroup and use therefugee camps
as rear bases forguerilla action. He equallyprotested the way in
whichRwandan and Burundian forcesused humanitarian aid as bait
tocapture other Hutu refugees inZaire.
đđđđđđ10Brauman in interview,September 2010.
đđđđđđ11See especially Michel Agier,đOnthe Margins of the World:
TheRefugee Experience Today, trans.David Fernbach, (London:
Polity,2008).
đđđđđđ12Eyal Weizman and RonyBrauman in conversation,Columbia
University, 4 February2008.
đđđđđđ13Brauman, “Learning fromDilemmas,” 141.
đđđđđđ14Michael Ignatieff, The LesserEvil: Political Ethics in
an Age ofTerror, (Princeton: PrincetonUniversity Press, 2004).
đđđđđđ15Brauman in interview,September 2010.
đđđđđđ16David Rieff,đA Bed for the Night:Humanitarianism in
Crisis,(London: Vintage, 2002).
đđđđđđ17Michel Agier, “The Undesirablesof the World and
HowUniversality Changed Camp,” 16.May 2011, opendemocracy.net.
đđđđđđ18Agier,đOn the Margins of theWorld, 60.
đđđđđđ19Walter Benjamin, “Critique ofViolence,” trans.
EdmundJephcott, in Peter Demetz,ed.,đReflections (1978), 283.
đđđđđđ20Eitan Diamond, “ReshapingInternational Humanitarian
Lawto Suit the Ends of Power” at theconferenceđHumanitarianismand
International HumanitarianLaw: Reflecting on Change overTime in
Theory, Law, andPractice, held at the Law School,the College of
ManagementAcademic Studies in RishonLezion, 16–17 December
2009.
đđđđđđ21Charles J. Dunlap, “Lawfare: ADecisive Element of
21st-Century Conflicts?,”Joint ForceQuarterly 3, (2009), 35. See
alsoCharles J. Dunlap, “Law andMilitary Interventions:Preserving
Humanitarian Valuesin 21st-Century Conflicts,” at
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Humanitarian Challenges inMilitary Intervention(Conference),
Carr Center forHuman Rights Policy in theKennedy School of
Government,Harvard University, 29 November2001. See also Charles
Dunlap,“Lawfare amidWarfare,”Washington Times, 3August 2007.
đđđđđđ22David Kennedy,đOf War and Law,(Princeton: Princeton
UniversityPress, 2006), 33.
đđđđđđ23Asa Kasher, “A Moral Evaluationof the Gaza
War,”đJerusalemPost, 7 February 2010.
đđđđđđ24See Yotam Feldman and UriBlau, “Consent
andAdvise,”đHa’aretz, 5 February2009.
đđđđđđ25Ibid.
đđđđđđ26Asa Kasher, “Operation CastLead and the Ethics of
JustWar,”đAzure, no. 37, (summer,2009): 43–75.
đđđđđđ27The military’s “international lawdivision” and its
operationalbranch have devised tactics thatwould allow soldiers to
applywhat might be called“technologies of warning.”Delivered to
homesteads bytelephone or sometimes bywarning shots, they aim to
shiftpeople between legaldesignations – as soon as acivilian picks
up the phone in hishome, his legal designationchanges from an
“uninvolvedcivilian,”đprotected by IHL, to avoluntary “human
shield” – froma subject to an object, a simplepart of the
architecture.Technologies of warningintervene in the legal
categoriesof both “distinction” and“proportionality”: with regard
tothe former, they transfer peoplefrom illegitimate to
legitimatetargets by forcing them into alegal category that is
notprotected; and with regard to thelatter, they imply a
differentcalculation of proportionality.Human shields are
notdesignated as combatants butare not counted as
uninvolvedcivilians in the calculations ofproportionality which
mustassess damage against the lifelost.
đđđđđđ28John Yoo,đThe Powers of War andPeace, (Chicago:
University ofChicago Press, 2005).
đđđđđđ29Itamar Mann and Omer Shatz,“The Necessity Procedure:
Lawsof Torture in Israel and Beyond,1987–2009,”đLegalleft, 2011,
seelegalleft.org/wp-content/uploads/2011/02/2-necessity_procedure.pdf.
đđđđđđ30Some of these crimes were infact investigated and
prosecuted
by the Israeli military’s courts.Human Rights Watch,
“WitnessAccounts and AdditionalAnalysis of IDF Use of
WhitePhosphorus,” online, 25 March2009.
Seehrw.org/en/news/2009/03/25/witness-accounts-and-additional-analysis-idf-use-white-phosphorus.
đđđđđđ31In the nineteenth century,photographs as
courtroomevidence were often understoodas pale substitutes for
evidence,posing legal challenges and evenbeing referred to as “the
hearsayof the sun.” Photographic imageswere banned from courts.
Butonce entered, they still weretreated with much suspicion
andultimately had to prove theirstatus as reliable evidence.
See:Joel Snyder, “Res Ipsa Loquitur,”Lorraine Daston, ed.,Things
ThatTalk: Object Lessons from Artand Science, (New York: ZoneBooks,
2007).
đđđđđđ31Seehttp://www.campusincamps.ps/
đđđđđđđ
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