Michel Foucault, Security, Territory, Population: Lectures at the College de France 1977–1978, ed. Arnold I. Davidson, trans. Graham Burchell, (London: Palgrave Macmillan, 2007), 164–73, 183.
Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror, (Princeton: Princeton University Press, 2004).
Ibid., xiv.
These refer respectively to jus in bello and jus ad bellum.
A former Israeli military lawyer Gabriella Blum opines that if international humanitarian law “is designed to minimize humanitarian suffering within the constraints of war, then it is not at all clear why measures intended to further minimize suffering … a choice for the lesser evil – cannot serve as a justification,” she says effortlessly, “for suspending the law in the name of the law.” Gabriella Blum, “The Laws of War and the ‛Lesser Evil,’” (35 YJIL 1, 2010), 3.
Relying on what is essentially a proportionality analysis, the Israeli Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, otherwise known as the Landau Commission, of 1987 reaches the conclusion that the prohibition on torture is not absolute, but is rather based, in its own words, upon the logic of “the lesser evil.” Thus, “the harm done by violating a provision of the law during an interrogation must be weighed against the harm to the life or person of others which could occur sooner or LATER” (upper-case in the original). US Department of Justice attorney John Yoo similarly referred to a balance of interests when authorizing forms of torture during the Bush Administration. Itamar Mann and Omer Shatz, “The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987–2009,” Legalleft, 2011, see →.
Ibid., 3.
Brauman, “Learning from Dilemmas,” 136.
During the other prominent crises of the 1990s his pronouncements and actions called for humanitarianism to be positioned away from militaries—Western or otherwise. During the war in Somalia it was about the militarization of the “humanitarian mission that ended up shooting many of the people it came to protect. Several months after the massacres in Rwanda it was about the way that the Hutu militias that undertook them were using international aid in order to regroup and use the refugee camps as rear bases for guerilla action. He equally protested the way in which Rwandan and Burundian forces used humanitarian aid as bait to capture other Hutu refugees in Zaire.
Brauman in interview, September 2010.
See especially Michel Agier, On the Margins of the World: The Refugee Experience Today, trans. David Fernbach, (London: Polity, 2008).
Eyal Weizman and Rony Brauman in conversation, Columbia University, 4 February 2008.
Brauman, “Learning from Dilemmas,” 141.
Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror, (Princeton: Princeton University Press, 2004).
Brauman in interview, September 2010.
David Rieff, A Bed for the Night: Humanitarianism in Crisis, (London: Vintage, 2002).
Michel Agier, “The Undesirables of the World and How Universality Changed Camp,” 16. May 2011, →.
Agier, On the Margins of the World, 60.
Walter Benjamin, “Critique of Violence,” trans. Edmund Jephcott, in Peter Demetz, ed., Reflections (1978), 283.
Eitan Diamond, “Reshaping International Humanitarian Law to Suit the Ends of Power” at the conference Humanitarianism and International Humanitarian Law: Reflecting on Change over Time in Theory, Law, and Practice, held at the Law School, the College of Management Academic Studies in Rishon Lezion, 16–17 December 2009.
Charles J. Dunlap, “Lawfare: A Decisive Element of 21st-Century Conflicts?,”Joint Force Quarterly 3, (2009), 35. See also Charles J. Dunlap, “Law and Military Interventions: Preserving Humanitarian Values in 21st-Century Conflicts,” at Humanitarian Challenges in Military Intervention (Conference), Carr Center for Human Rights Policy in the Kennedy School of Government, Harvard University, 29 November 2001. See also Charles Dunlap, “Lawfare amid Warfare,”Washington Times, 3 August 2007.
David Kennedy, Of War and Law, (Princeton: Princeton University Press, 2006), 33.
Asa Kasher, “A Moral Evaluation of the Gaza War,” Jerusalem Post, 7 February 2010.
See Yotam Feldman and Uri Blau, “Consent and Advise,” Ha’aretz, 5 February 2009.
Ibid.
Asa Kasher, “Operation Cast Lead and the Ethics of Just War,” Azure, no. 37, (summer, 2009): 43–75.
The military’s “international law division” and its operational branch have devised tactics that would allow soldiers to apply what might be called “technologies of warning.” Delivered to homesteads by telephone or sometimes by warning shots, they aim to shift people between legal designations—as soon as a civilian picks up the phone in his home, his legal designation changes from an “uninvolved civilian,” protected by IHL, to a voluntary “human shield”—from a subject to an object, a simple part of the architecture. Technologies of warning intervene in the legal categories of both “distinction” and “proportionality”: with regard to the former, they transfer people from illegitimate to legitimate targets by forcing them into a legal category that is not protected; and with regard to the latter, they imply a different calculation of proportionality. Human shields are not designated as combatants but are not counted as uninvolved civilians in the calculations of proportionality which must assess damage against the life lost.
John Yoo, The Powers of War and Peace, (Chicago: University of Chicago Press, 2005).
Itamar Mann and Omer Shatz, “The Necessity Procedure: Laws of Torture in Israel and Beyond, 1987–2009,” Legalleft, 2011, see →.
Some of these crimes were in fact investigated and prosecuted by the Israeli military’s courts. Human Rights Watch, “Witness Accounts and Additional Analysis of IDF Use of White Phosphorus,” online, 25 March 2009. See →.
In the nineteenth century, photographs as courtroom evidence were often understood as pale substitutes for evidence, posing legal challenges and even being referred to as “the hearsay of the sun.” Photographic images were banned from courts. But once entered, they still were treated with much suspicion and ultimately had to prove their status as reliable evidence. See: Joel Snyder, “Res Ipsa Loquitur,” Lorraine Daston, ed.,Things That Talk: Object Lessons from Art and Science, (New York: Zone Books, 2007).