In this public lecture, I engage the concept of lawfare (an amalgamation of “law” and “warfare”) to compare Israeli and US twenty-first century armed conflicts. Specifically, I focus on both states’ targeted killing policies and the legal rationales that have been advanced to try to project their lawfulness, and legal challenges to these policies in order to tell a larger story about the relationship between contemporary practices of law and war. In order to tell this story, I expand the lawfare concept to include “state lawfare” to describe how officials—in this case Israelis and Americans—have interpreted the state’s rights to combat enemies and wage war in ways that depart and deviate from international interpretations of international humanitarian law (IHL). Lawfare is responsive to state lawfare, and here I elaborate on how their relationship manifests as contestations over what is legal in war.
I begin with a brief history of Israeli state lawfare vis-à-vis the occupied West Bank and Gaza, and the implications of (local) legal challenges. This history provides the context for understanding changes in Israeli state lawfare that preceded the start of the second intifada in 2000 but powerfully inform the claimed right to wage full-scale war against Palestinians, and how Israel’s interpretative innovations influenced the US in the “war on terror.” I then trace Israeli and US state lawfare efforts to “legalize” targeted killing by claiming the right to execute enemies and suspects at times and in places when they are not engaged in battle or directly participating in hostilities. Although there are significant differences between their twenty-first century armed conflicts, there is a shared desire to present their behaviors as lawful. The final part of my talk traces legal challenges (i.e., lawfare) to Israeli and US targeted killing policies and their outcomes. These challenges have been mounted in the Israeli and the US legal systems, and in several foreign countries. I conclude with some thoughts about the significance of mounting legal challenges, even when those challenges do not prevail in courts.