Over the last few years, Israel and Palestine have become major topics of interest and debate for scholars who do American Studies. This is evident in burgeoning comparative analyses of settler colonialisms, militarized borders, intersections of racialization and revolutionary politics, and cultural productions that emanate from or speak to the issue of diaspora, to name a few.
Here, I share some thoughts about the comparative work that I do on Israel’s and America’s ways of war. I contend that Israel is not only the most relevant comparative example to understand American ways of war, but in fact provides the model for articulating and projecting positions on “what is lawful in war” that the United States has adapted and expanded.
Israel has been in a perpetual state of war since its establishment in 1948. One manifestation of this is the fact that the country has no internationally recognized permanent boundaries. But the nature of that war changed profoundly after 1967 when Israel occupied the West Bank and Gaza (and the Syrian Golan Heights) and Palestinian liberation entered its militancy phase. Over the decades since 1967, Palestinian militancy has surged and receded, transformed (e.g., with the rise of Islamist organizations), turned internecine, and faced stiff liberationist competition from those who embrace non-militant strategies, of which the Boycott, Divestment and Sanctions movement (BDS) is the most prominent contemporary example.
Throughout, one constant has been the official Israeli position that Palestinians are existential enemies. This is exemplified by fact that the government proclaims that both Hamas rockets and the BDS movement are “strategic threats” to be combatted and crushed.
The law is an essential consideration to understand Israel’s ways of war and to understand why Israel provides such an attractive model for the US government. The body of law most relevant to war and conflict is international humanitarian law (IHL), specifically the Geneva Conventions of 1949. Because grave breaches of IHL constitute war crimes, acting—or appearing to act—in accordance with the law is crucial to a government that wishes to legitimize its ways of war to both international and domestic constituencies.
One way a government can project the appearance of acting in accordance with the law is to produce interpretations that the law does not apply. And, indeed, in the immediate aftermath of the 1967 War, Israeli officials crafted a position that the Fourth Geneva Convention, which pertains to the governance of territories and the rights of populations occupied in war, is inapplicable to Israel’s control of the West Bank and Gaza.
The main tenets of this interpretation are:
- The West Bank and Gaza are not “occupied” because they were not the sovereign territory of the states displaced in the war (Jordan and Egypt). Therefore
- Israel is not occupying but “administering” these areas and their Palestinian populations; and thus
- The Geneva Conventions do not apply in a de jure manner.
- Furthermore, IHL applies only to conflicts among states and because Palestinians are stateless they have no rights under the Geneva Conventions, and
- Even if IHL were applicable (which the government claims it is not), it is “conventional” rather than “customary” international law which would not supersede “local” laws, including those that flatly contradict the rules and principles of IHL (e.g., the prohibition of collective punishments, the transfer of occupied or occupying populations).
What is important to appreciate is that none of these tenets ever acquired international endorsement, but they nevertheless constituted the legalistic cornerstones of Israeli policies and practices vis-à-vis the Palestinian populations and territories in the West Bank and Gaza. For example, building on the claim that these areas are “administered” (i.e., neither occupied nor sovereign to Israel) and that Palestinian residents are foreign subjects but not citizens of the Israeli state, the government proclaimed that human rights laws to which it is a signatory (e.g., the Convention against Torture) are also non-binding on the state in those areas.
And now a few specific consequences of this “original” hyper-sovereigntist approach to international law, which bear directly on understanding why Israel has been such an attractive model for the United States.
First, in November 1987, Israel became the first state in the world to “legalize” torture, albeit euphemized as “moderate physical pressure,” when the government officially and publicly endorsed the necessity and legitimacy of using “pressure” in the interrogation of Palestinians in order to combat “hostile terrorist activity”—a concept that included both Palestinian militancy and non-violent forms of nationalist/liberationist politics. That policy was dialed back in 1999 when the Israeli High Court of Justice (HCJ) ruled against the “routine” use of “pressure,” while leaving a crack open for “extreme situations” (e.g., so-called “ticking bomb” scenarios).
Second, in November 2000, Israel became the first state in the world to assert the legality of targeted killing as a tactic of war (i.e., extra-judicial assassination of individuals at times and in places where they were not engaged in armed conflict). In 2006, the HCJ rendered a ruling on targeted killing, asserting that the policy was neither flagrantly illegal nor always lawful but rather depended on a militarized calculus of “proportionality” (i.e., the amount and nature of armed force used to take out a “legitimate target”) and “necessity” (i.e., when killing was the only alternative because arrest was impossible without high risk to Israeli forces). The overarching conclusion of the HCJ position was that targeted killing can be lawful and legitimate if those IHL principles of proportionality and necessity are factored into decision-making.
Anyone who knows about how the United States has waged the global “war on terror” will see clear resonances with these Israeli ways of war. The commonalities include the fact that both governments are engaged in asymmetric wars against stateless enemies, and both have described their conflicts as “wars on terror.” However, for the United States, the enemy is not so much existential (at least beyond the lunatic fringe) as it is “exceptional.” In November 2001, when President George W. Bush issued a military order defining the enemies as “unlawful enemy combatants,” he took the first step in signaling his administration’s intention to evade the requirements and restrictions of IHL. That position was furthered the following February when he “declared” (secretly at the time) that the Geneva Conventions do not apply to the “war on terror.” Several years later, when the premises of that position became public, what was revealed was the intention to inoculate government officials from the possibility of future prosecutions for war crimes (i.e., no crime without law).
In August 2002, the US government secretly “legalized” torture when lawyers in the Office of Legal Counsel (OLC) constructed an interpretation of international law (as non-binding) and federal law (as inapplicable beyond the sovereign territory of the US) that endorsed the use of violent, degrading, and inhumane tactics by the CIA in black sites (which subsequently “migrated” to military detention facilities in Guantanamo and Iraq) that defied international consensus on the nature and prohibition of torture. Two key OLC memos where this interpretation was laid out made specific references to the Israeli model circa 1987 while ignoring the 1999 HCJ ruling.
Although the US torture policy ended when Barack Obama assumed the presidency in January 2009, the possibility of its restoration remains ever-present, as illustrated by the fact that all but one of the Republican contenders for president in 2012 asserted their desire to resurrect “enhanced interrogation methods” (the popular American euphemism for torture) were they to win office.
President Bush endorsed the tactic of targeted killing in the “war on terror” when he authorized a drone strike against a suspected al-Qaeda member in Yemen in November 2002, but until the final year of his administration, arrest and interrogation were the preferred methods of waging this war. Since Obama took office, targeted killing (mainly through drone strikes but also including Special Forces kill units) has become the centerpiece of a globally expanding “war on terror.” Although the Obama administration insists on its right to keep secret the details about decision-making for targeted killing as well as the legal rationales articulating its putative lawfulness, numerous public statements by the president and other top officials offer clear indication that those rationales track closely to Israeli rationales (e.g., the legitimacy of killing enemies off any battlefield, the impossibility of arrest).
One stark contrast between Israeli and American ways of war is the role played by domestic courts. In Israel, since 1967 thousands of petitions have been submitted to the HCJ challenging the legality of Israeli policies in the West Bank and Gaza, including those mentioned above pertaining to torture and targeted killing. With very few exceptions, the HCJ has given its imprimatur to the lawfulness of government policies. While such endorsements have held little sway internationally, they have been important means of solidifying the legitimacy of Israel’s ways of war for a domestic (Jewish Israeli) constituency. In the United States, with the exception of a tiny handful of landmark decisions by the Supreme Court that ruled against Bush administration “war on terror” policies, the courts have dodged taking responsibility by accepting government claims that such cases are non-justiciable, either because litigation would breach states secrets or because government officials and state agents enjoy immunity.
In conclusion, I would argue that scholars of American Studies can understand America better by probing and engaging with the comparisons and contrasts in Israeli and American ways of war.
[This article was originally published by Social Text/Periscope.]