A lecture with George Bisharat, UC Hastings College of the Law
Published: Thursday, April 21, 2011
Yale legal scholar Robert Cover began a widely-read article a number of years ago with the striking introduction: "Legal interpretation takes place in a field of pain and death ...Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life." The article, entitled "Violence and the Word," spurred renewed inquiry into the relationship between law, language, and violence, and underscored law's ultimate, though not always visible, reliance on force. In contrast, I will consider a possibly different relationship between law and violence, in which violence not only is law's ultimate or end point, but also its beginning. This relationship is manifest in Israel's attempted uses/distortions of international humanitarian law (IHL; the branch of public international law that governs the behavior of parties at war), beginning with the outbreak of the second Palestinian intifada in 2001, and including its attacks on Lebanon in 2006 and Gaza in 2008-09. There is considerable evidence that Israel is deliberately trying to rewrite international law through violence. Israeli military lawyers were well aware of the limits of IHL and consciously counseled military commanders to violate those limits, in the hope that these violations would be accepted by the international community as legal innovations. Arguably, this turns IHL - the purpose of which is to limit suffering even during war - on its head, allowing law to extend the scope of violence to previously protected areas and persons. Is this a dangerous, new development? Or does it merely represent the age-old tradition that "might make right?" These questions and others will be addressed in the talk.
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