FOCUSED PREVENTION PODCAST: PART II


Thanks for tuning in to part I of the Focused Prevention podcast. If you missed it, go here and then come back for part II. And for the academic paper associated with these podcasts, head over to the downloads tab.

Here is part II (I nearly wrote 'enjoy', but that's entirely the wrong word):

The podcast episodes are a collaboration between James Milsom (of The Rule Book Podcast) and I. The episodes draw on a series of interviews with a cast of Israeli characters, including some of Israel's most senior former military lawyers. I'm often asked about how I came to find myself in Israel conducting these interviews and how I managed to negotiate access, so perhaps now is a good time to give some of the back story.   

 

THE BACK STORY

I first heard about military lawyers in 2009. I was in Vancouver studying for my M.A. in Geography at the University of British Columbia with the wonderful Derek Gregory (of the equally wonderful geographicalimaginations.com blog). I was writing about Israeli military violence and would often begin my day by catching up on the latest developments in the Palestine-Israel conflict. On a cold morning in December I opened the pages of Haaretz, a liberal Israeli newspaper (or liberal by Israeli standards, at least). I found an article that gave me the topic that would become the focus of my research for the next six years. Bombs were raining down on Gaza in what the Israeli military called 'Operation Cast-Lead', causing massive civilian casualties and prompting widespread international condemnation. And yet in the pages of Haaretz, the journalists Yotam Feldman and Uri Blau (both of whom I later interviewed for the research) detailed how:

“Prior to the Gaza operation, IDF [Israel Defense Force] officers were receiving legal advice that allowed for large numbers of civilian casualties and the targeting of government buildings. Some legal experts, among them the former head of the army’s international law division, maintain that the IDF harnessed the law in the service of the war effort.” 

I could not reconcile the images of death and destruction with what the Israeli military and its legal experts were apparently claiming: the carnage was legal; military lawyers were behind every targeting decision; the violence had been sanctioned by what is supposed to be one of humanity’s most cherished accomplishments of the late nineteenth and twentieth centuries – the architecture of international law that culminated in the Geneva Conventions. Could this be true? Was Operation Cast-Lead legal? If it were legal, what body of law could permit this kind of devastation? If it were not legal then why did Israel go out of its way to say it was? Who were these military lawyers, and what exactly was their role in the war on Gaza? If I wanted answers to these questions, I figured I might start by speaking to the lawyers who signed off on the destruction. And so after a lot of preparation - I had to learn about a military world that was largely foreign to me and a legal language as baffling to me as the Hebrew I didn't speak - I set off to Jerusalem and Tel Aviv in search of military lawyers.

 The Kirya. The Israeli military headquarters in central Tel Aviv is home to the International Law Department of the Military Advocate General. It is also one of the key command and control centres used to plan and execute targeting operations. The playful statues in the foreground and the sunny streets belie the violence that is planned and unleashed from military locations like the Kirya. Photo by author.

The Kirya. The Israeli military headquarters in central Tel Aviv is home to the International Law Department of the Military Advocate General. It is also one of the key command and control centres used to plan and execute targeting operations. The playful statues in the foreground and the sunny streets belie the violence that is planned and unleashed from military locations like the Kirya. Photo by author.

ACCESS

Researching military practices is not without its difficulties, especially when the practices concerned are sensitive and involve ongoing combat operations. Military institutions and the personnel that populate them can be wary of outsiders. This is understandable and there are all kinds of reasons why both institutes and individuals within militaries may be reticent to engage with outsiders. It is important to note that military members – uniformed personnel – are under no obligation to speak with 'ordinary' civilians or academics like me. As one UK RAF lawyer made clear: “We have concerns regarding security and have no obligation to discuss our practices with civilians.” [1] Cultural, social and political divisions between civilian and military worlds are still very real despite the talk of new “civil-military relations,” which purportedly blur the traditional civil/military dichotomy. Or at least they are very real for academics who, like me, have no military or defence affiliations. I would not want to overstate the military/civilian dichotomy or suggest that it cannot be partly overcome for the purposes of research, yet at the same time certain strategies (or tools) did help to improve my access to military lawyers.

First, it did help to be an academic. Rightly or wrongly academics are often seen as neutral and impartial. Researchers working in proximate areas and military insiders repeatedly told me that I would have better access to military lawyers if I approached the subject of targeting from an “academic” rather than “political” perspective. This is an obvious point, but one that betrays its own bias – the assumption that the scholarly endeavour is somehow above or outside of politics, which they are not. Academia – and academics – can be extremely political, their work is perhaps inevitably so. When approaching military lawyers I presented my research as a non-partisan investigation into the role that military lawyers play in targeting operations. I also framed my inquiry to make it clear that I was aware of the security and classification issues surrounding targeting and informed the participants that I would not seek to compromise them. In the initial contact phase, it helped to maintain a focus on technical rules and procedures, as these are areas of strength and knowledge for military lawyers; later in the interview process I would ask military lawyers about their personal experiences and the practice of targeting to get at how targeting actually works (as opposed to how it is supposed to work, which is the realm of military doctrine). Military lawyers are more than capable of distinguishing between what they are and are not allowed to disclose and I think that my position as an academic helped to put my interviewees at ease.

Second, as I've already intimated, it helped to know the field, the jargon and the acronyms. There is no better way to show you are an outsider than by showing an interviewee that you have not done your homework or have not bothered to learn the language. In order to prepare for my interviews I took courses on International Humanitarian Law (IHL)/the laws of war and International Human Rights Law (IHRL) at the University of British Columbia, read most of the legal and academic literature around targeting, and kept up to date with targeting doctrine and recent targeting decisions. I would also do background searches on each interviewee before interviewing them to ensure I knew something about their particular career, experience and trajectory. All this, I suspect, is fairly standard research practice but it really did help to win the trust of those whom I interviewed, and several military lawyers commended me for having learnt so much about their area of expertise. Inevitably, however, and much like the military lawyers who I interviewed, I learned a lot “on the job,” sometimes asking for clarification – “what's a TIC?” [troops in contact] – while other times choosing to hide my ignorance, or at least trying to. In an interview with the former Military Advocate General Avichai Mandelblit (the top post in the Israel military legal system), I referred in passing to “IHL” – International Humanitarian Law. What I didn’t realize at the time was that using this term is an absolute faux pas for many military lawyers who instead tend refer to “The Laws of Armed Conflict” or “LOAC.” IHL and LOAC refer to the same body of law but these two names represent two very different schools of thought; those in what Eyal Benvenisti has called the “IHL camp” emphasise the humanitarian and restrictive aspects of the law, whereas those in the “LOAC camp” emphasise the military and permissive aspects of the law. This single acronym put me at firm political odds with my interviewee as far as he was concerned: he sees humanitarians as a threat to and an enemy of the Israeli military (see the dialogue box below with the relevant extract). That interview didn’t go particularly well – he shut down after I dropped the “IHL bomb" – but the example shows how vital it is not only to ‘learn the language’ but also how political and  divisive the language of law can be. 

Mandelblit: [The IDF legal school] teach law to the wider military, especially LOAC or IHL, I don’t know how you call it: which do you prefer?

Me: It depends who I am talking to.

Mandelblit: You call it IHL, right?

Me: I don’t, I call it both

Mandelblit: Very interesting, LOAC is the language of American practitioners and Israeli practitioners; in other places, even in the university in Israel and the US will call it IHL. And militaries in Europe will call it IHL, even the UK Army call it IHL. But  Canada… Ken Watkin [the former Judge Advocate General] called it IHL but Blaise Cathcart who replaced him calls it LOAC. And its not only methodology because you send a message. Its the same rules, I know - the same - but you send a message: do you focus on protecting the civilians or do you focus on achieving the military goals. You send a message to the soldiers so I don’t know... you can call it whatever you want.

Me: Well, the problem of calling it International Humanitarian Law is that it doesn’t seem very humanitarian often.

Mandelblit: It’s okay, we won’t get into it. I can see in your face you prefer to call it IHL so we’ll call it IHL.

Third, persistence pays off. Contacting military personnel through the official channels, which normally means going through an office of public affairs, can be rather like filing an insurance claim: the initial response is either “no, we can’t help you” or a variation of “this is not our area of responsibility; please file your request elsewhere.” More often than not, there is a good chance that the person you initially reach out to is not the person that you need to talk to. This can be frustrating and discouraging but perseverance is essential if you are to reach the right person and obtain the information you need. Militaries – and especially the US military – are vast bureaucratic institutions and they can only be negotiated with patience. Militaries carve out areas, divide up jobs and distribute and disperse responsibilities over an unimaginably large and complex geography; this means that finding the right person – or group of people – responsible for doing the specific job in the specific area at the specific time that you are interested in can be almost impossible. The kill-chain is an especially dispersed part of the military apparatus and so my method in a sense had to mimic the complex and sprawling geographies of the kill-chain. This meant going through but also beyond the offices of public affairs; it meant contacting specific Air Force components and departments, different JAG (Judge Advocate General) departments, and different individuals across many different units and departments in several different locations around the world. Such are the structures of what Derek Gregory calls later modern war. 

Despite my best efforts, access to military lawyers was not unlimited. Furthermore, key legal opinions concerning important targeting decisions remain classified, as do specific rules of engagement (ROE). My access to military lawyers was highly contingent on several factors, some of which I am aware of and others which I will likely never understand. For example, after months of deliberation the Israeli military eventually approved my requests to conduct formal and structured interviews with active-duty lawyers. That was 22 May  2013. I was in the process of setting up interviews with specific individuals (including, for example Brigadier General Danny Effroni who was the Military Advocate General at the time), when, one month later, the Israeli military decided “for a number of reasons, primarily of which related to information security” to rescind the approval and block my access.[2] I never received a satisfactory answer as to why the Israeli military had a change of heart. The “information security” reasons might seem legitimate enough – and no doubt these are sensitive issues – but shortly after the Israeli military tried to block my study they granted Michael Schmitt (a former US military lawyer) and John Merriam (an active duty US military lawyer) “unprecedented access that included a “staff ride” of the Gaza area, inspection of an Israeli operations center responsible for overseeing combat operations, a visit to a Hamas infiltration tunnel, review of IDF doctrine and other targeting guidance and briefings by IDF operations and legal personnel who have participated in targeting. The[se] authors also conducted extensive interviews of senior IDF commanders and key IDF legal advisers.” Of course, one cannot help but be envious of such access but it does come at a price. Part of the cost is that this kind of access provides the researcher with an inevitably one-sided view; another cost is, as these authors concede, “the approach might be perceived as leading to a pro-Israeli bias.”[8]

Again, I come back to how much politics (and in this case identity politics) plays such an important role in the research process. Why was I denied formal access when others were granted it? Did this have anything to do with the fact that the Israeli military perceived my work as partisan or that they provide access only to like-minded military lawyers? Is it incidental that the accounts produced by Michael Schmitt and John Merriam are overwhelmingly positive in their assessment of Israeli targeting practices and the involvement of military lawyers? Could it be that Schmitt and Merriam were effectively working for the US government by “developing” international law in ways that advance both US and Israeli interests? I cannot answer these questions definitively but it is important to reflect on why access is granted to some and not others. Long before the Israeli military rejected my formal request to conduct interviews with their active-duty military lawyers, I had already conducted several interviews with other Israeli military lawyers outside of the official avenues. These were all on the record. Needless to say, it would have been beneficial to also hear the “official” version of military lawyering in Israel, though in this particular instance I was able to benefit from the research done by those who were granted access to the official version, and have no sort of ethical obligation to this official narrative.

There's lots more to this story and, of course, I'm not the only one to have interviewed Israeli military lawyers; there's some other terrific work out there and much has happened in Palestine-Israel since I conducted my interviews, so I'll return to these issues soon.

 

[1] Email correspondence with Air Commadore Alison Mardell, 9 June 2014.

[2] Email correspondence with IDF MAG Corps, 23 June 2013.