Space,abandonment,closure,and performance: Writing about the relationship between law and war

We are grateful to all four reviewers for their close readings of the books and their productive suggestions. This response focuses on four themes that are both present in the reviews and constituted central themes of the books themselves: space-time, abandonment, closure, and performance. Considering each in turn, the response highlights areas of consensus and dissensus between the two books while providing sightlines for future research.

Our books and each of the reviews offer insights into what at first glance might appear as different spaces and different temporalities of war and law. With its focus on the War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina, The Edge of Law concerns the legal space of the court – the quintessential space of criminal legal proceedings and dramatisations – in the aftermath of conflict. As Hughes points out in her review, law is no tabula rasa and it does not simply arrive in the wake of conflict but shapes its unfolding. The War Lawyers suggests that such shaping might be more proactive and prospective than previously thought, with military lawyers and war planners increasingly discussing the legal preparation of the battlespace. When the United States invaded Iraq in 1991, it had previously secured basing, logistics, and flight permission with Saudi Arabia in a series of ‘Status of Forces’ agreements so detailed that they included a provision that US personnel would not consume alcohol while on the Kingdom's soil. The ‘space’ of law in Jones’ account is largely outside of the court and in some ways the locations where military and operational law takes place are antithetical to the aspirational publicness of the court; these are decisions that take place not only ‘behind closed doors’, but in buildings and places with undisclosed locations shrouded in relative, though not impenetrable, secrecy. The point here is not simply that law ‘happens’ in many places, but that the spatial arrangements specific to legal contexts give shape to law, and vice versa: the space of law matters in material ways. We might contrast the formal phenomenology of court space – the orientation of the chairs, the seriousness of the wood and leather decor – with the ad hoc and highly networked environments in which military legal decisions on targeting operations take place (forward operating bases and Air Operations Centres in the Middle East linked back to Washington and various US Airbases), and no doubt these are different kinds of spaces, but common across our work is attention to the mutual making and unfolding of law and space.

Several years ago, socio-legal theorist Valverde (2014: 53) expressed concern as to ‘whether space has been overemphasised to the detriment of analysis of temporality’. Both books in one way or another subscribe to the school of critical legal geography that takes space and time (or space-time) as mutually constitutive. Hall picks up on this aspect of The War Lawyers in relation to dynamic targeting. Dynamic targeting is a form of military targeting in which decision-making is sped up to respond to unfolding events in the world at near real time, the classic (but rare) example being the fleeing ‘terrorist’ who must be targeted before they escape the watchful eye of a drone. Military lawyers (or ‘JAGs’) have become more deeply involved in this highly fluid form of warfare, giving live legal advice to military commanders who require the distillation of vast legal principles across military, domestic and international law into pithy legal opinions – or often just a straightforward ‘yes’ or ‘no’. One military lawyer Jones interviewed was involved in more than 1000 such targeting missions (and now suffers from PTSD). Where in The Edge of Law the ‘slow time’ of international criminal law was used as a mechanism for delaying or preventing the enactment of trial justice, targeting law consists of decisions on the fly in an extremely fluid and unknowable environment. But the compression of the decision cycle – the ‘kill chain’ – doesn’t simply involve reaching the same conclusions in a shorter space of time; instead, speed changes the time spaces of war, turning calculations of what might have been known into fleshy materialisations. If only the commander had more time, she might have seen the schoolchildren in the building next door – but she didn’t, and from the point of view of legal advice in the proverbial fog of war, all that matters is what the commander knew at the time the decision was taken.

In differing ways, both books are as much a story of law's absence as presence. Indeed, by exploring edges and spaces of law there is an intrinsic interest in the limits and exclusions of legal practices, claims and institutions. In different ways all the reviews probe this question of law's absence. For example, Hall identifies the productivity of law as part of a larger ‘regime of liberal governance that perpetuates violence through its renunciation’ echoing Blomley's call to scrutinise the production of ‘informality’, defined as ‘a sector of urban life that take place without state oversight and record, seemingly detached from formal regulation and control’. Here the notion of ‘inside’ and ‘outside’ the law is rendered complex, mobile and mutable, reflecting work that has sought to trace the considerable ambiguities when identifying the boundaries of juridical order. It strikes us that integrating work on abandonment would have helped develop these points, scholarship that has sought to explore the situated and transient elements of the suspension of legal protections, both empirically and conceptually (see Leshem, 2017). In contrast to the concept of ‘exclusion’ – one that is regularly cited when reflecting on the enactment of sovereign power, Pratt (2005: 1054, cited in Leshem, 2017: 624) views abandonment as an ‘active, relational process’ one in which those abandoned ‘remain in a relationship with sovereign power.’

In both texts, abandonment could be understood as a plural and mutable process, where bodies and sites sit in an ambivalent classificatory domain at once inside and outside the law. Not, then, a clear invocation of the ‘space of exception’ or ‘zone of abandonment’, but rather the fluid production of abandonment through the enactment of shifting legal protocols (The War Lawyers) or changing institutional forms (The Edge of Law). More than simply empirical nuance, we would argue these approaches contribute to the wider project of thinking through the sites and subjects produced through law. One approach would be to adopt Shewly's (2015) concept of ‘transient citizenship’, where the production of abandonment creates new political subjectivities set within a shifting web of legal frameworks. In the context of The Edge of Law, such transient citizenships could be seen in the actions of the civil society groups that worked alongside the WCC, where the formal practices of the court required purportedly ‘informal’ connections and events to facilitate participation in the legal process and the securing of rights. In The War Lawyers, citizenship in certain places – Iraq, Afghanistan, and Palestine – exposes civilians both to law's protections and its violence. It is precisely through their supposed transience (‘farmer by day, improvised explosive device maker by night’, as one interviewee put it) and the crossing of the threshold from presumed innocence to foregone guilt that civilians-cum-combatants are abandoned by principles of ‘humanity’ and exposed instead to the exigencies of ‘necessity’ and ‘proportionality’.

This sensitivity to the ambivalence of the distinction between inside/outside law is a feature in both texts. As Blomley notes in his review of The Edge of Law, the ability of law to demarcate a separation of legal deliberation from wider social and cultural forces is widely described as a form of ‘legal closure.’ When mobilised by critical legal scholars, legal closure is presented as an oppressive device that denies the violence enacted in the name of law. In this context – and potentially heretically – Blomley asks, ‘[i]s closure only to be contested, or does it also offer potential?’ There is something refreshing in this question, gesturing as it does at the importance of tracing meticulously how and with what consequences legal closure is enacted and in doing so avoiding adopting a general normative framework that equates openness with virtue. In some senses, Blomley's question recovers the uncomfortable tension between general claims of justice being seen to be done versus the purported value of blind justice. On the one hand, participation and integration with law are prized, on the other separation and impartiality are held as strengths. This speaks to Hughes's important observation regarding the singularity of ‘the’ edge of law when speaking of the establishment of War Crimes Trials. This observation rightly calls into view the problem of a singular line between law and non-law. The purpose of The Edge of Law was to illuminate the implications of an imagined separation, to consider the struggles that seek to establish a threshold between law and non-law, and the practical and judicial challenges of marshalling that boundary. In so doing the intention was not to present law as necessarily a site of injustice, but rather to illustrate the implications of presenting an edge of law.

Two implications stem from this focus on legal closure. First, and perhaps most prevalent in scholarship critiquing critical legal studies, the imagination that legal closure renders law as a proxy for the operation of power underplays the value placed in law as a site for redress or source of rights. Challenging relativism, the imagination of law's rationality as separate to and intervening upon the social and political world emboldens the pursuit of rights as transformative for marginalised or oppressed groups. A qualitative and interpretative approach to the making of law demands that participants are understood as knowledgeable actors who understand the conditions of their existence. There is a risk of false consciousness in imagining that legal closure negates the purpose of law as a mechanism for resolving conflict without violence, especially when thinking through settings such as the enactment of US Foreign Policy or the violence in Bosnia and Herzegovina. Extending this, perhaps we must elevate, albeit tentatively and with caveats, the considerable hope that is projected onto international humanitarian and criminal law that it will either lead to a ‘kinder, gentler, and more humane vision of war’ (Jones, 2020: 13) or provide the grounds for redress. Still, whether through compensation or reconciliation, there is a palpable sense in which such rights-based approaches tend towards what Erakat (2019: xi) calls ‘justice for some’.

The second point on legal closure is that isolation from political contexts can protect legal processes from undue influence or – more plainly – sabotage. While this would be cold comfort to the more anarchistic end of critical legal studies, it does reflect a pragmatism that legal processes are a distinctive field of expert practice that seeks to resolve conflict through deliberation, if not without violence. Naturally, legal processes are the sites of political interference, it is almost impossible to think otherwise, and in this context, closure could be understood as a bulwark against fascistic or violent sovereign power. In the context of The Edge of Law, this separation is complex, since the legal system stems from sovereign power exercised by international agencies (such as for example, the Office of the High Representative implementing a new Criminal Procedure Code in 2003) but in doing so faces challenges from domestic political actors who view such intervention as a vestige of colonial interference. This would seem to reflect a well-trodden ‘critical’ perspective. But of course, those domestic political actors, for example, the Srpska demokratska stranka (Serb Democratic Party), are themselves pursuing an exclusionary political agenda that seeks territorial ethnic homogeneity. In this more complex frame – a full analysis needs more space – closure could be less the oppressive machinations of sovereign power and more a protective exercise in allowing the law to function.

The final theme is performativity. Neither of us subscribes to any sort of legal formalism but instead see law and its interpretation as part of social and political life. We each have slightly different takes on the question ‘what is law?’, but across both books, there is a clear sense in which law is both textual and worldly. As Lisa Stampnitzky points out, key categories around the themes of war and law, including these terms, are social constructions: the law is not ‘found’ but made and indeterminacy is a key component both of decision-making and legal outcomes. This is important because it helps to understand law as a terrain of struggle rather than a fait accompli, a tool to be harnessed for different and antagonistic purposes rather than serving only an elite few. Stampnitzky is right to highlight these dimensions and to suggest that The War Lawyers perhaps underplays the heterogeneity of actors and opinions in the space of struggle. The example she provides of JAGs protesting US torture is an interesting one. Uniformed lawyers fought vociferously against the excesses of Guantanamo and Abu Ghraib and other sites of torture and ultimately joined forces with civilian litigators and legal activists across the political spectrum (rare in the United States) to push back against the ‘legalisation’ of extrajudicial rendition, indefinite detention, and torture. The 20-year legal fight has been documented in Hajjar’s (2022) new book The War in Court, and in an arresting argument, Hajjar claims that the victory of the anti-torture lobby directly paved the way for a new paradigm of war centred around targeted killings and the forms of drone warfare noted by Hall. This links to Stampnitzky's important point about covert versus overt action. Lawyers helped bring torture out of the shadows and when it was no longer a viable policy option, the United States was forced to articulate a quasi-public legal rationale for targeting and killing an increasing number of individuals and groups across an expanded geographical area, including the killing of US citizens (a similar thing happened in Israel only a few years earlier). Law is a site of struggle then, but in different ways, our attention returns again and again to power and in particular the state's power to define and reinscribe what counts as legitimate violence or justiciable outcomes.

For Jones, the law is what the law does (and what lawyers do) and in the space of operational law, JAGs have a special sort of power tantamount to what we might think of as ‘petty sovereignty’ (Butler, 2004). The legal theorist Robert M. Cover once claimed: ‘Legal interpretation takes place in a field of pain and death…interpretive acts signal and occasion the imposition of violence upon others’ (Cover, 1986: 1601). He was writing with the death penalty in mind, but his argument is equally as applicable to the application and interpretation of rights and responsibilities under military operational law and International Humanitarian Law, the body of law that regulates the conduct of war. An affirmative legal opinion in this space exposes faraway others to almost immediate and overwhelming violence in a speech act that closely resembles a corporal sentence by a judge. Legal hesitation or anticipation of risk can ‘save’ or prevent such a conclusion. Formally speaking it is the military commander's decision to take, but in practice and owing in no small amount to what Jacques Derrida (1992: 1) memorably called the ‘mystical foundations of authority’, the opinion or advice of lawyers in this space often carries such weight as to be decisive. Reflecting on the unacknowledged power that such lawyers have come to have on twenty-first-century battlefields, former Army Lawyer Liddick (2021: no page) writes, ‘I will never know whether I could have altered fate or prevented the loss of innocent lives had I only done more, had I only spoken up, had I only insisted on something — anything — different.’

In light of these productive engagements with our work, we are left considering what role legal reform might have in shaping the processes under scrutiny in these books. In the case of The Edge of Law, attention turns to the role and purpose of international criminal law in shaping the conduct and outcome of conflict, continuing to focus on the role that law can play in mediating, addressing, and punishing the gravest of crimes. Specifically, the question remains as to whose legal expertise is valued and with what consequences for institutional design and the identification of crimes. Reformed structures of international criminal law will need to continue to consider how authority is defined over the reach and purpose of legal action, recognising the limits of law as an instrument of justice in the wake of profound atrocities. The War Lawyers is ultimately a critique of the legal reforms that have taken place in advanced militaries in the late twentieth and early twenty-first centuries. Celebrated by military insiders as a revolution in military legal affairs, the juridification of war turns out to be a double-edged sword – and a sharp one at that (Jones, 2016). Leo Tolstoy famously critiqued what he saw as the ‘prettification’ of war and today legal historians are debating the pitfalls as well as the merits of the so-called humanisation of the laws of war (Moyn, 2021). Hall touches on some of this when she asks what can be learnt from police reform and abolition (in the United States context). One lesson might be that there are limits to institutional self-reform, and another is that change is unlikely in absence of sustained struggle. Any abolitionist futures rely deeply on the imagination of new possibilities. For both of us, this has meant continuing to probe what justice might look like from elsewhere, and what it means as a material configuration and lived experience.