Eyal Weizman has an article on the how the IDF consulted military lawyers in its recent actions in Gaza, to both ensure that it acted within the constraints of international law and to expand those limits to Israel’s benefit. Or rather, it acted, as Weizman puts it, in the “zone of interpretation that exists between obvious violations and possible legality.” Among other things, such as moving toward a Benjamanian analysis of law-giving violence and warning of the dangers of using international law as a protest against war, Weizman shows how in international law, military action is becoming the de facto legislative force.
International humanitarian law is based upon treaty law and customary international law. The former is fundamentally indeterminate and subject to constant fights over interpretation. The latter means that military practice can continue to shape the law. As such the law is pragmatic, its borders are elastic enough to enable diverse interpretations and subsequent expansion. Far from being opposed to violence, the law can be settled through the application of state violence. Indeed, the legal tactics sanctioned by military lawyers in Israel’s attack on Gaza were located precisely in this zone of interpretation that exists between obvious violations and possible legality.
International law designates the limit of what international public opinion may consider as “tolerable”, but these limits too can be stretched by military practice. Practices applied long enough by different states, and supported by the necessary legal opinions, could eventually become law. Operating at the margin of the law is thus one of the most effective ways to expand it. According to this “postmodern” legal interpretation, violence legislates.