Abstract
The targeted killing judgment of the Israeli Supreme Court has, since it was handed down in December 2006, received a significant amount of attention: praise as well as criticism. Offering neither praise nor criticism, the present article is instead an attempt at a ‘critique’ of the judgment drawing on the German-Jewish philosopher Walter Benjamin’s famous essay from 1921, ‘Critique of Violence’. The article focuses on a key aspect of Benjamin’s critique: the distinction between the two modalities of ‘legal violence’—lawmaking or foundational violence and law-preserving or administrative violence. Analysing the fact that the Court exercises jurisdiction over these killings in the first place, the decision on the applicable law as well as the interpretation of that law, the article finds that the targeted killing judgment collapses this distinction in a different way from that foreseen by Benjamin. Hence, the article argues, the targeted killing judgment is best understood as a form of administrative foundational violence. In conclusion Judith Butler’s reading of Benjamin’s notion of ‘divine violence’ is considered, particularly his use of the commandment, ‘thou shalt not kill’, as a non-violent violence that must be waged against the kind of legal violence of which the targeted killing judgment is exemplary.
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Notes
HCJ 769/02 The Public Committee Against Torture and Palestinian Society for the Protection of Human Rights and the Environment v. the Government of Israel et al. hereinafter (PCATI).
See e.g. Ben-Naftali (2007), Ben-Naftali and Michaeli (2007), Bendor (2007), Cassese (2007), Cohen and Shany (2007), Eichensehr (2006), Even-Khen (2007), Keller and Forowicz (2008), Kremnitzer (2007), Lesh (2007), Melzer (2006, 2008), Milanovic (2007), Schondorf (2007), Wojcik (2007), ‘On the Legal Aspects of “Targeted Killings”: Review of the Judgment of the Israeli Supreme Court’, Policy Brief, Program on Humanitarian Policy and Conflict Research, Harvard University (2007).
Adam Stahl describes the counterterrorism operations of the IDF and the ISA in the occupied territories as ‘symbiotically linked’: ‘The ISA collects the necessary intelligence through a web of techniques, which the IDF then acts upon, if deemed operationally viable’ (Stahl 2010, p. 112).
HCJ 5871/01 Barakeh v. Prime Minister translated from Hebrew in Ben-Naftali and Michaeli (2003, p. 369).
Clearly there is disagreement as to which law governs the different activities of the Israeli state on the occupied territories, such as targeted killings and the so-called ‘security fence’. Hence, this decisive statement of Barak may be contrasted with the 2004 advisory opinion ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’, of the International Court of Justice (ICJ). According to the ICJ, within the normative framework of international humanitarian law only the rules dealing with military authority in occupied territories is currently applicable on the West Bank (cf. article 6, paragraph 3 of the Fourth Geneva Convention). This means that the legal framework that guides the targeted killing judgment of the Israeli Supreme Court (the rules governing the conduct of hostilities in the context of an international armed conflict) would not even be relevant should the ICJ advisory opinion be followed. (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004 paras. 124–125). I take this to be an indication, as good as any, of the indeterminacy of the law governing the policies and measures taken by the state of Israel on the occupied territories.
The treaty-based version of this norm is found in article 51.3 of Additional Protocol 1 to the Geneva Conventions of 12 August 1949. The Position of the International Committee of the Red Cross (ICRC) is that there is an equivalent in customary international law to this norm, a position that Barak finds ‘acceptable’ (PCATI, para. 30).
This proportionality assessment is governed by the norm applicable in international armed conflicts that determines that civilian casualties must not be excessive in relation to the concrete and direct military advantage anticipated from the attack, in this case the killing of the targeted person. The treaty-based version of this norm is found in Article 51.5 of Additional Protocol 1 to the Geneva Conventions of 12 August 1949.
The Israeli Ministry of Foreign Affairs issued a press release on 20 December 2006 by reason of the Israeli Supreme Court judgment. Revealingly, in the first paragraph it is stated that ‘the Court’s decision enables Israeli security forces to continue carrying out targeted killings on condition that the merits of every instance are individually examined’. It is specifically mentioned that the press release was written with the aid of the legal department of the Foreign Ministry in coordination with IDF legal staff (Israel Ministry of Foreign Affairs, press release of 20 December, 2006).
It should be mentioned that the notion of ‘legal violence’ appears already on several instances in Benjamin’s text.
In view of that, Costas Douzinas writes that the violence at law’s inception is ‘entombed in every legal act as a residue or excess’ (Douzinas 2006).
In his ‘Targeted Killing in International Law’ Nils Melzer labours with a distinction between the paradigm of law-enforcement and the paradigm of hostilities. In this context it should be mentioned also that Melzer criticises the judgment of the Israeli Supreme Court for completely disregarding the paradigm of law-enforcement (Melzer 2008, p. 34).
Gil Anidjar has recently drawn attention to secondary literature’s lack of attention to how blood figures in Benjamin’s ‘Critique of Violence’. In particular, the much telling notion of Blutgewalt for legal violence has been neglected (Anidjar 2009).
The radical difference between this peculiar transmission of the commandment from the transmission or enforcement of law (as well as the potential for justice of the former but not the latter) finds the following formulation in Benjamin’s essay on Kafka: ‘the law which is studied and not practiced any longer is the gate to justice’ (Benjamin 1968, p. 139).
Revealingly, in her preface to Benjamin’s ‘Illuminations’, Hannah Arendt writes that Benjamin was greatly attracted not by religion, but by theology and theological interpretation (Arendt 1968, p. 4).
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Acknowledgments
This article was originally presented at the Power of Law workshop held at the University of Helsinki, Faculty of Law on 28–30 January 2010. I remain indebted to the Institute for International Law and the Humanities (IILAH) at Melbourne Law School, University of Melbourne, and its director Anne Orford for hosting me during the completion phase of the article and also for giving me the opportunity to give a seminar on it. I would like to thank Gregor Noll who has offered his always critical, yet always constructive comments on several occasions during the time of writing. Thanks are also due to two anonymous referees for their thoughtful comments. The text has benefitted from having been exposed to David McBride’s erudite language skills. All remaining mistakes are of course mine.
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Gunneflo, M. The Targeted Killing Judgment of the Israeli Supreme Court and the Critique of Legal Violence. Law Critique 23, 67–82 (2012). https://doi.org/10.1007/s10978-011-9097-y
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DOI: https://doi.org/10.1007/s10978-011-9097-y