Eyal Weizman

665: The Leastof All PossibleEvils

The preemptive logic of the “lesser evil” is ofteninvoked to justify the use of a lesser violence toprevent a supposedly greater, projected one. Theargument conjures a cold calculus ofdifferentials, one in which good and evil are seenas commodities that are exchanged, transferred,speculated upon and in constant circulation. But,as in our contemporary financial economy, theLeibnitzian theodicy of “the best of all possibleworlds” is in crisis, and out of its ruins emergesits twin – the necro-economy of đ“the least of allpossible evils.” Eyal Weizman’s most recent bookThe Least of All Possible Evils looks specificallyat the structure of this argument, the predictiveand incalculable conceptions of violence it putsforth, and its redeployment as a means ofproviding a convenient bogeyman for justifyingalmost any atrocity committed in the name ofeven more heinous hypothetical consequences.Looking at the forces shaping international law, atthe paradoxes of the humanitarian band-aid, andat the dark art of forensic architecture, EW pointsto the very shape of a weak negativity thatcharacterizes the withdrawal of any coherentmission for the left. đđđđđđđđđđThis article is composed of excerptedpassages from The Least of All Possible Evils,chosen and sequenced by the editors to provideanother point of reflection on the theme of thisissue – a crisis in the conjunction of violence andeconomy. The excerpts are drawing mainly fromthe first three chapters – on the historical originsof the lesser evil argument, on its contemporarydeployment as humanitarian aid, and on thepotential for unlocking violence by employing theinherent elasticity of the law.đđđđđđđđđđ

***đđđđđđđđđđIf, as a friend recently suggested, we oughtto construct a monument to our present politicalculture as an homage to the principle of the“lesser evil,” it should be made in the form of thedigits 6-6-5 built of concrete blocks, andinstalled like the Hollywood sign on hillsides orother high points overlooking city centers. Thisnumber, one less than the number of the beast –that of the devil and of total evil – might capturethe essence of our humanitarian present,obsessed as it is with the calculations andcalibrations that seek to moderate, ever soslightly, the evils that it has largely caused.đđđđđđđđđđThe principle of the lesser evil is oftenpresented as a dilemma between two or morebad choices in situations where available optionsare – or seem to be – limited. The choice madejustifies harmful actions that would otherwise beunacceptable, since it allegedly averts evengreater suffering. Sometimes the principle ispresented as the optimal result of a general field

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Film still from Sylvain George's documentary on North African and Middle Eastern refugees' attempt to reach the U.K.. Here, one of the characters shows hisobliterated fingertips – a strategy to evade identification through fingerprinting. May they rest in revolt (Figures of wars I), 2011. Copyright: Independencia.

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of calculations that seeks to compare, measure,and evaluate different bad consequences inrelation to necessary acts, and then to minimizethose bad consequences. Both aspects of theprinciple are understood as taking place within aclosed system in which those posing thedilemma, the options available for choice, thefactors to be calculated, and the very parametersof calculation are unchallenged. Each calculationis undertaken anew, as if the previousaccumulation of events has not taken place, andthe future implications are out of bounds.đđđđđđđđđđThose who seek to justify necessary evils as“lesser” ones, especially when searching for arationale to explain recent wars and militaryexpeditions, like to appeal to the work of thefourth-century North African philosopher-theologian St. Augustine. Augustine’s rejection ofthe principle of Manichaeism – a world strictlydivided into good and evil – meant that he nolonger saw evil as the perfect mirror image of thegood; rather, in platonic terms, he saw evil as ameasure of the absence of good. Since evil,unlike good, is not perfect and absolute, it isforever measured and calibrated on a differentialscale of greater and lesser. Augustine taught thatit is not permissible to practice lesser evils,because to do so violates the Pauline principle“do no evil that good may come.” But – and herelies its appeal – lesser evils might be toleratedwhen they are deemed necessary andunavoidable, or when perpetrating an evil resultsin the reduction of the overall amount of evil inthe world.đđđđđđđđđđMore recently, Pope Benedict XVI hasappealed to the lesser evil principle in a decreepermitting the use of condoms in places withhigh rates of HIV. Similar to this logic ofcontraception, some in the Vatican thought thatimplicit support for the government of SilvioBerlusconi, albeit plagued by sin, ridicule, andcorruption, might be considered as the lesser evilin protecting Christian values. In cases such asthese, the economy of the lesser evil is alwayscited as a justification for breaching rigid rulesand entrenched dogma; indeed, it is very oftenused by those in power as the primaryjustification for the very notion of “exception.”đđđđđđđđđđIn fact, Augustine’s discourse of the lesserevil was developed at a time when the churchhad started to participate in the politicalgovernment of its subjects and had acquiredconsiderable financial and military power.Through the ages, the Christian church saw itstask as keeping human evil to a minimum. Itpastorally ruled over a vast and complexintrapersonal economy of merits and faults – ofsin, vice, and virtue – operating according tospecific rules of circulation and transfer, withprocedures, analyses, calculations, and tactics

that allowed the exercise of a specific interplaybetween conflicting goods and degrees of evil. Inhis lectures on the origins of governmentality,Michel Foucault argued that, on the basis of this“economical theology,” the modern, secular formof governmental power has itself taken on theform of an economy.1đđđđđđđđđđThe theological origins of the lesser evilargument cast a long shadow over the present. Infact, the idiom has become so deeply ingrained,and is invoked in such a staggeringly diverse setof contexts – from individual situational ethicsand international relations, to attempts to governthe economics of violence in the context of the“War on Terror” and the efforts of human rightsand humanitarian activists to maneuver throughthe paradoxes of aid – that it seems to havealtogether replaced the position previouslyreserved for the term “good.” Moreover, the veryevocation of the “good” seems to invokeeverywhere the utopian tragedies of modernity,in which evil seemed to lurk in a horribleManichaeistic inversion. If no hope is offered inthe future, all that remains is to insure ourselvesagainst the risks that it poses, moderate andlessen the collateral effects of necessary acts,and tend to those who have suffered as a result.đđđđđđđđđđIn relation to the War on Terror, the terms ofthe lesser evil were most clearly and prominentlyarticulated by Michael Ignatieff, former humanrights scholar and leader of Canada’s LiberalParty. In his book The Lesser Evil, Ignatieffsuggested that in “balancing liberty againstsecurity,” liberal states should establishmechanisms to regulate the breach of somehuman rights and legal norms, and allow theirsecurity services to engage in forms ofextrajuridical violence – which he saw as lesserevils – in order to fend off or minimize potentialgreater evils, such as terror attacks on civiliansin Western states.2đđđđđđđđđđIf governments need to violate rights in aterrorist emergency, it should be done, hethought, only as an exception and according to aprocess of adversarial scrutiny. “Exceptions,”Ignatieff states, “do not destroy the rule but saveit, provided that they are temporary, publiclyjustified, and deployed as a last resort.”3đđđđđđđđđđThe lesser evil emerges here as a pragmaticcompromise, a “tolerated sin” that functions asthe very justification for the notion of exception.State violence in this model is a necro-economyin which various types of destructive measuresare weighed in a utilitarian fashion, not only inrelation to the damage they produce, but to theharm they purportedly prevent and even inrelation to the more brutal measures they helprestrain. In this logic, the problem ofcontemporary state violence resembles an all-too-human version of the previously mentioned

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mathematical minimum problem of the divineorder, one tasked with determining the smallestlevel of violence necessary to avert the greatestharm. For the architects of contemporary war,this balance is trapped between two poles:keeping violence at a level low enough to limitcivilian suffering, yet high enough to bring adecisive end to a given war.4đđđđđđđđđđMore recent works by legal scholars andlegal advisers to states and militaries sought toextend the inherent elasticity of the system oflegal exception proposed by Ignatieff into waysof rewriting the laws of armed conflictthemselves.5Lesser evil arguments are now usedto defend anything from targeted assassinationsand mercy killings, to house demolitions,deportation, and torture,6 to the use of(sometimes) non-lethal chemical weapons, theuse of human shields, and even “the intentionaltargeting of some civilians if it could save moreinnocent lives than they cost.”7 In a macabremoment, it was even suggested that the atomicbombings of Hiroshima and Nagasaki might betolerated under the principle of the lesser evil.Faced with a humanitarian A-bomb, one mightwonder what, in fact, might qualify as a greaterevil. Perhaps it is time for the differentialaccounting of the lesser evil to replace themechanical bureaucracy of the “banality of evil”as the idiom to describe the most extrememanifestations of violence. Indeed, it is throughthis use of the lesser evil that self-proclaimeddemocratic societies can maintain regimes ofoccupation and neocolonization.

DisproportionalityMilitary violence endeavors not only to bringdeath and destruction to its intended targets butalso to communicate with its survivors – thosethat remain, those not killed. The laws of warhave become one of the ways in which militaryviolence is interpreted by those who experienceit, as well as by global bystanders. It could thusbe said to have a pedagogical pretension. It is aviolence that should not only convince, but alsomanufacture the very possibility for conviction.đđđđđđđđđđIn contemporary war, the principle ofproportionality has become the main translatorof the relation between violence, law, and itspolitical meaning. The communicative dimensionof military threats can function only if gaps aremaintained between the possible destructionthat an army is able to inflict and the actualdestruction that it does inflict. It is through theconstant demonstration of the existence andsize of this gap that a military communicateswith the people it fights against and occupies.Sometimes the gap opens wide, such as whenthe military governs the territories it occupies –its violence in a state of potential, existing as a

set of threats and possibilities that are not, forthe time being, actualized. In a state of war, thegap closes – but rarely does it do so completely.Even in the most brutal wars, something of thegap still exists as the stronger side restrains andmoderates its full destructive capacity. Restraintis also what allows for the possibility of furtherescalation, an invitation for the victims violenceto make their own cost-benefit calculation andopt for consent. A degree of restraint is thus partof the logic of almost every military operation:however bad military attacks may appear to be,they can always get worse. This is measuredagainst “the potentiality of the worst” – anoutburst of performative violence without rules,limits, proportion, or measures – which has to bedemonstrated from time to time.đđđđđđđđđđThe gap thus communicates the potentialfor destruction without the need for furtherviolence. When the gap between the possible andthe actual application of force closes completely,violence loses its function as a language. Warbecomes total war – a form of violence strippedof semiotics, in which the enemy is expelled,killed, or completely reconstructed as a subject.Degrees in the level of violence are preciselywhat makes war less than total. Game theory, asapplied by military think tanks since the earlyCold War days of RAND, is conceived to simulatethe enemy’s responses, and help manage the gapbetween actual and potential violence. Thispractical form of military restraint is now oftenpresented as adherence to the laws of war.đđđđđđđđđđDisproportionality – the breaking of theelastic economy that balances goods and evils –is violence in excess of the law, and one that isdirected at the law. Disproportional violence isalso the violence of the weak, the governed,those who cannot calculate, and those who areoutside of the economy of calculations. Thisviolence is disproportional because it cannot bemeasured and because, ultimately, having itsjustice not reflected in existing law, it comes torestructure the basis of existing law altogether.đđđđđđđđđđThe calculations of proportionality as atechnique of management and government – themanagement of violence and the government ofpopulations – is undertaken by the powerful side“on behalf” of those it subjugates. Moreover thispower is in fact grounded in the very ability tocalculate, count, measure, balance and act onthese calculations. Inversely, to make oneselfungovernable, one must make oneselfincalculable, immeasurable, and uncountable.

Minima Moralia“During the Bosnia war I was at a crossroads. Onthe one hand I continued to pursue positionsinherited from the Cold War; on the other, I wastrying to get my bearings in the new world we

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Inscriptions by young prisoners in Chambre Noire, Guéckédou Civilian Prison, Guinea in prison cell. Photographer Julie Remy accompanied MSFin their mission in this prison.

were suddenly living in after the Berlin wall camedown” – so said Rony Brauman, president ofDoctors Without Borders (Médecins SansFrontières, or MSF), to the philosopher andpublisher Michel Feher in a famous interview.Brauman went on to note that at the beginning ofthe wars of the former Yugoslavia, “we were veryexplicitly influenced by Hannah Arendt, [as]Bosnia seemed like the traditional confrontationbetween liberal democracy and totalitarianism …and I responded in the liberal way, by raising theflag of human rights.”8 But as raising the flag ofhuman rights meant military intervention, thisposition also clashed with Brauman’s aversion toa humanitarianism that could be absorbed intostate politics and military strategy.9 Moreover, hethought making public MSF’s opinion on juridicalcategories such as “‘crimes against humanity’ –which has always had an implicit reference to theNazi camps – has political, military, and legalconsequences beyond our control. The languageone uses both frames the problem anddetermines the kind of response. To say ‘crimesagainst humanity’ is to call for immediatemilitary intervention to stop it – and this isbeyond the mandate of humanitarianism.”10đđđđđđđđđđIn the face of this bold humanitarian vision,with its violent cosmopolitan order of

geopolitical statements and calls forhumanitarian intervention, Brauman started topromote humanitarianism in its minimalist form:humanitarianism as the practice of lesser evils.The lesser evil, in the way that Brauman refers toit, is a humanitarianism that sustains lifewithout seeking to govern or managepopulations, without making political claims ontheir behalf or seeking to resolve root causes ofconflicts. It is a humanitarianism thatunashamedly and impartially deals with theproblems of “bare life.” This concept, designatingthe vulnerability of a life stripped of any civil andpolitical rights that might protect it, comes fromthe philosopher Giorgio Agamben. In recentyears, “bare life” has been popularized in thecontext of the critique of humanitarian action.11In what might be defined as the critique of thecritique of humanitarianism, Brauman made sureto adopt the very terms in which he wascriticized: “Of course, we take care of the bodies.We as aid workers try to maintain life … I would,on the contrary, feel very uncomfortable if wewere trying to do more – to control or penetratepeople’s minds. What people ask us, what theyexpect from us, is to help them survive. For therest, they can manage by themselves.”12“Upholding a vision of humanitarianism as the

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Protest monument at the Tijuana-San Diego crossing for those who have died attempting to cross the US-Mexican border. Each coffin represents a year andthe number of dead.

policy of the lesser evil,” in Brauman’s view, is atemporary autonomous act of solicitude that “isabout little more than the caring for bodies.”Politics based in medicine, he states, must beabandoned in exchange for the obvious: theactual practice of humanitarianism and clinicalmedicine. It is in this sense that “accepting thepolicy of the lesser evil … becomes one of theways to live with the contradiction [ofhumanitarianism] without completely becominga victim of it.”13đđđđđđđđđđBut this is a different conception of the“lesser evil” argument than the one Braumanrejected in his withdrawal from Ethiopia, where itconcerned collaboration with “totalitarians.” It isalso different than that articulated by the likes of(Bernard) Kouchner and (Bernard-Henri) Lévy,who conceive the idea from the point of view ofthe state and Western values, in the context offighting in the name of the “lesser evil” ofdemocracy. It is also different from the “ethicalrealism” of Michael Ignatieff, in which thepractice of the lesser evil demands theimposition of ethical constraints on states’actions while in the pursuit and defense of“moral goals” such as freedom, human rights,and democracy.14đđđđđđđđđđAgainst what Brauman calls the “imperialpolicy of humanitarianism,” his meaning of thelesser evil designates the project ofhumanitarianism at its most minimal – as onethat “takes no political stand, makes no claim to

transform society, and doesn’t come to make waror peace, promote economic development, helpadminister justice, or export democracy orhuman rights values.”15 These, he thinks, are notnecessarily bad things in themselves, but theyare the responsibility of the politicians and havelittle to do with humanitarianism as such, whichin its minimal, independent, impartial, andbarest meaning should seek to provide nothingmore than immediate, short-term relief andmedical aid – what David Rieff, following BertoltBrecht, called “a bed for the night.” Suchhumanitarianism “won’t change the world” – nordoes it seek to.16đđđđđđđđđđThis minimal approach to humanitarianismhas found its spatial manifestation in whatBrauman called a “humanitarian space.” In hisconception, the humanitarian space is a form ofspatial practice rather than an actual space or aterritorial designation. Against the tendency ofconflicts since the 1980s to generate integratedand entangled political-military-humanitarianspaces, mainly around refugee camps, this spaceis conceived in order to hold relief work at adistance from political and military practice.đđđđđđđđđđDriving the humanitarian present is nolonger a sense of naive yet dangerouscompassion, but rather a highly specialized andconcerted international effort to managepopulations that are seen as posing risks. In hiswork on the refugee camps of Africa, theanthropologist Michel Agier refers to

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contemporary humanitarianism as nothing lessthan “a distant and delegated form ofmanagement, a government without citizens.”17He describes the humanitarian zones as heavilyguarded and tightly policed “waiting rooms onthe margins of the world,” built and maintainedfor the purpose of the “total government of theplanet’s populations who are most unwanted andundesirable.” In them, the well-meaninghumanitarians “find themselves acting as low-cost managers of exclusion on a planetaryscale.”18 Refugee camps are part of an overallsystem of migration control, he says, intended toprovide for displaced populations at a discreetdistance from Western shores. They are an islandin an archipelago of extraterritoriality, which alsoincludes extended border control practices anddetention centers. Humanitarianism’s earlierobsession with identifying and sorting outperpetrators from victims is here renderedirrelevant as both categories morph into that ofthe potential migrant, whose entry into Westerncountries must be stopped at any price.Displaced populations become the concern ofthe international community precisely becauseof the risks they pose. The fear of migration,crime, and terrorism is conceived of as being ininverse relation to the well-being of populations.This tendency is best captured by the term“human security,” under which every dimensionof human life – from food and shelter toeducation – is measured within a shiftingcalculus of risk.đđđđđđđđđđHumanitarianism should indeed aim toprovide no more than the bare minimum tosupport the revival of life after violence anddestruction. As long as refugees are alive, thepotential for political transformation still exists.The very life of refugees, their life as refugees,poses a potent political claim withtransformative potential, one that represents afundamental challenge to the states and statesystem that keep them displaced. This is thereason that generations of political leaders, fromthe Democratic Republic of the Congo through toKosovo and Palestine, emerge from among therefugees to become the vanguard of politicalstruggles. The refugees’ return to politics hasunpredictable consequences, which are andmust always remain beyond the horizons ofhumanitarians and aid groups. Only whenhumanitarianism seeks to offer temporaryassistance rather than to govern or develop canthe politics of humanitarianism really create aspace for the politics of refugees themselves.This shift demands that we think about thepolitics of aid not only from the perspective ofthe paradoxes and dilemmas of the reliefworkers and the people that send them, not onlyconcerning the problems of humanitarian

cooption, evasion, government and refusal, butprimarily from the question of the politics ofrefugees, their claims, their rights and theirpotential actions, their wishes, their exerciseand their evasion of power, their potential return.It might be that only with the ultimate refusal ofaid at a time of their choice – with the rejectionof the very apparatus that sometimes keepsthem in good health, and sometimes operates tomanage their exclusion – with refugeesconstructing their own spaces, self governing,posing demands and acting upon them – that thepotentiality of their political life will actualize.đThen, where there were camps there could becities.

A computer monitor taken from the Royal Bank of Scotland is hurledthrough a window during G20 disturbances in the City of London,2010. Photo: Carl de Souza/AFP/Getty

Lawfare

If, therefore, conclusions can be drawnfrom military violence, as being primordialand paradigmatic of all violence used fornatural ends, there is inherent in all suchviolence a lawmaking character.19

– Walter Benjamin

Israel’s bombing and invasion of Gaza in thewinter of 2008–9 marked the culmination of itsviolence against the Palestinians since theNakba of 1948, and resulted in widespreadinternational allegations that Israel hadcommitted war crimes. It was also the assault inwhich Israeli experts in internationalhumanitarian law – the area of the law thatregulates the conduct of war – were moreinvolved than ever before. Since the 2006Lebanon War, the Israeli military has becomeincreasingly mindful of its exposure tointernational legal action. Preparations for the

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next conflict included those in the domain of law,and new “legal technologies” were introducedinto military matters.đđđđđđđđđđThis development gives rise to a series ofrelated questions. Might it be that these legaltechnologies contributed not to the containmentof violence but to its proliferation? That theinvolvement of military lawyers did not in factrestrain the attack – but rather, that certaininterpretations of international humanitarian lawhave enabled the inflicting of unprecedentedlevels of destruction? In other words, has themaking of this chaos, death, and destructionbeen facilitated by the terrible force of the law?đđđđđđđđđđIn more domains than one, the elastic andporous border has become the contemporarypathology of Israel’s regime of control. Itmanifests itself in a variety of ways – one suchbeing the elasticity that military lawyers identifyand mobilize in interpreting the laws of war.đđđđđđđđđđAs such, the laws of war pose a paradox tothose protesting in their name: while theyprohibit some things, they authorize others. Andthus a line is drawn between the “allowed” andthe “forbidden.” This line is not stable and static;rather, it is dynamic and elastic and its path isever changing. An intense battle is conductedover its route. The thresholds of the law will bepulled and pushed in different directions bythose with different objectives. The questionhinges on which side of the legal/illegal divide acertain form of military practice falls.International organizations such as the UN andthe ICRC (International Committee of the RedCross), large NGOs and human rights groups, andalso some highly regarded academic authoritieson international humanitarian law have themeans to push the line in one direction – to placecontroversial military practices on the prohibitedside – while state militaries and their apologistsseek to push it in the opposite direction.International law can thus not be thought of as astatic body of rules but rather an arena in whichthe law is shaped by an endless series ofdiffused border conflicts.đđđđđđđđđđAccording to Eitan Diamond, the legalscholar and adviser for the ICRC in Israel, “thearchitecture of international humanitarian law istypified by ‘rigid lines of absolute prohibition’and ‘elastic zones of discretion.’” The rigidprohibitions are derived, he states, from thelaw’s origins in the nineteenth century, “a timewhen legal thought was dominated by apositivist-formalist approach that conceived oflaw as a closed system distinguished frompolitics and ethics.” Today, he fears, “states andtheir advocates are using arguments based onthe logic of the ‘lesser evil’ to subvert the law’sabsolute provisions and to subject them tomalleable cost-benefit calculations.”20

đđđđđđđđđđIndeed, new frontiers of military practiceare being explored via a combination of legaltechnologies and complex institutional practicesthat are now often referred to as “lawfare” – theuse of law as a weapon of war. Lawfare is acompounded practice: with the introduction andpopularization of international law incontemporary battlefields, all parties to aconflict might seek to use it for their tactical andstrategic advantage. The former Americancolonel and military judge Charles Dunlap, whowas credited with the introduction of this term in2001, suggested that “lawfare” can be defined as“the strategy of using – or misusing – law as asubstitute for traditional military means toachieve an operational objective.”21 In the handsof non-state actors, Dunlap says, the “lawfareeffect” is created by an interaction betweenguerrilla groups that “lure militaries to conductatrocities” and human rights groups that engagein advocacy to expose these atrocities, and whouse whatever available means for litigation theyhave. In a similar vein, Israel now often claimsthat it faces an unprecedented campaign oflawfare, which threatens to undermine the verylegitimacy of the state. Lawfare is used tacticallyby state militaries themselves. In this context, itrefers to the multiple ways by whichcontemporary warfare is conditioned, rather thansimply justified, by international law.22 In bothcases, international law and the systems ofcourts and tribunals that exercise and enact itare not conceived as spaces outside the conflict,but rather as battlegrounds internal to it.đđđđđđđđđđIt is within the “elastic zones of discretion”that Israeli military lawyers find enormouspotential for the expansion of military action.Daniel Reisner, a former chief internationallawyer for the Israeli military, argued thatbecause international humanitarian law is not somuch a code-based legal system but aprecedent-based legal corpus, state practice cancontinuously shift it.đđđđđđđđđđInternational law is a customary law thatdevelops through a historic process. If states areinvolved in a certain type of military activityagainst other states, militias, and the like, and ifall of them act quite similarly to each other, thenthere is a chance that this behavior will becomecustomary international law.23đđđđđđđđđđIt is in this sense that international lawdevelops through its violation. In modern war,violence legislates: “If the same processoccurred in criminal law, the legal speed limitwould be 115 kilometres an hour and income taxwould be 4 per cent.”24đđđđđđđđđđReisner is proud to have been the firstinternational lawyer to have defended, at therequest of then-Prime Minister Ehud Barak, thepolicy of “targeted assassinations” towards the

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end of 2000, when most governments andinternational bodies considered the practiceillegal. “We invented the targeted assassinationthesis and we had to push it. At first there wereprotrusions that made it hard to insert easily intothe legal molds. Eight years [and, as hesubsequently said in this interview – by way ofreference to 9/11 – ‘four planes’] later it is in thecenter of the bounds of legitimacy.”25đđđđđđđđđđAsa Kasher, a professor of ethics at Tel AvivUniversity, has worked with Reisner to provide anethical and legal defense for targetedassassination. He talks in similar terms aboutthe nature of law and the ways in which it mightbe transformed:đđđđđđđđđđWe in Israel have a crucial part to play in thedeveloping of this area of the law [internationalhumanitarian law] because we are at theforefront of the war against terror, and [thetactics we use] are gradually becomingacceptable in Israeli and in international courtsof law … The more often Western states applyprinciples that originated in Israel to their ownnon-traditional conflicts in places likeAfghanistan and Iraq, then the greater thechance these principles have of becoming avaluable part of international law. What we dobecomes the law.26đđđđđđđđđđThe actions of the Israeli state against Gazamay become acceptable in law. The siege –ongoing since 2007 – the 2008–9 invasion, andthe 2009 attack on an international flotillacarrying supplies into the enclave have all beencarried out with relative impunity, and do notappear to have significantly affected Israel’sinternational standing. Each of these forms ofaggression contains within it a multiplicity ofsmall-scale practices and incidents: restrictingthe supply of food to the point of starvation;targeted assassinations; sending advancewarnings that then allow the military to kill thosecivilians who choose not to evacuate;27 attackson activists in international waters; the use ofwhite phosphorus in inhabited areas – the listgoes on. In these acts – if Israeli lawyers havetheir way – lie the seeds of new legislation.đđđđđđđđđđWorking at the margins of the law is one wayto expand them. For violence to have the powerto legislate, it needs to be applied in the grey,indeterminate zone between obvious violationand possible legality, and then to be defendeddiplomatically and by legal opinion. Indeed, thelegal tactics sanctioned by military lawyers inIsrael’s invasion of Gaza in 2008–9 were framedin precisely this way. “When something’s in thewhite zone, I’ll let it be done, if it’s in the black I’llforbid it, but if it’s in the grey zone then I’ll takepart in the dilemma, I don’t stop at grey,” saidReisner.đđđđđđđđđđThe invasion therefore did two

simultaneous and seemingly paradoxical things:it both violated the law and shifted itsthresholds. This kind of violence not onlytransgresses but also attacks the very idea ofrigid limits. In this circular logic, the illegal turnslegal through continuous violation. There isindeed a “law-making character” inherent inmilitary violence. This is law in action, legislativeviolence as seen from the perspective of thosewho write it in practice.đđđđđđđđđđThis use of the law has much in commonwith that of the George W. Bush Administration’smisappropriation of the Office of Special Counselin the Justice Department, in order to figure out away to legalize the use of torture. Inherent in thiswas the clear intention to stretch the law as faras possible without actually breaking it.28 In thisexample, US Department of Justice attorneyJohn Yoo used the balancing of interests toauthorize certain forms of torture. His famoustorture memos were grounded in an Israeliprecedent: relying on what is essentially aproportionality analysis, the 1987 Israelicommission of inquiry into the methods ofinvestigation in the General Security Service (theLandau Commission) arrived at the conclusionthat the prohibition on torture is not absolute,but is rather based “upon the logic of the lesserevil.”đđđđđđđđđđThus, “the harm done by violating aprovision of the law during an interrogation mustbe weighed against the harm to the life or personof others which could occur sooner or later.”29Some legal scholars have suggested that Yoo’slegal advice in itself might be considered acrime.đđđđđđđđđđSimilar lines of legal argument are inspiredby a strand of legal scholarship known as“critical legal studies,” an approach thatemerged together with other post-structuralistdiscourses at the end of the 1980s. Critical legalstudies scholars aimed to expose the way thelaw is made – the workings of power in themaking and enactment of law – to challengelaw’s normative account and to offer an insightinto its internal contradictions andindeterminacies. It was, broadly speaking, acritical, left-leaning practice, which attemptedto deploy law at the service of a sociallytransformative agenda. But when internationallaw stands as an obstacle in the way of statemilitaries, it is easy to see why military lawyerswould adopt the attitude of those scholarsseeking to challenge rigid definitions and exposethe law as an object of critique and contestation.Today, when the creative interpretation of the lawis exercised by state and military lawyers, it isprimarily human rights and antiwar activists whoinsist on the dry letter of the law. Have we gonefull circle?

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đđđđđđđđđđIn the age of lawfare, the elastic nature ofthe law, and the power of military action tostretch it, those appealing for justice in the nameof the law need to be aware of its double edge.đđđđđđđđđđGaza is a laboratory in more than one sense.It is a hermetically sealed zone, with all accesscontrolled by Israel (except the border withEgypt). Within this enclosed space, all sorts ofnew control technologies, munitions, legal andhumanitarian tools, and warfare techniques aretried out on its million-and-a-half inhabitants.The ability to remotely control large populationsis also tested, before these technologies aremarketed internationally. Most significantly ofall, it is the thresholds that are tested andpushed: the limits of the law, and the limits ofviolence that can be inflicted by a state and beinternationally tolerated. This limit, newlydefined with every attack, will become the newthreshold of what can be done to people in thename of the War on Terror. When the legislativeviolence directed at Gaza unlocks the chaoticpowers of destruction that lie dormant within thelaw, the consequence will be felt by oppressedpeople everywhere.

EpilogueIs there, then, a horizon from which we can seebeyond the logic of the lesser evil? The epilogueof the book provides one such example.đđđđđđđđđđThe predominant conceptual frame bywhich refugee camps are understood is one inwhich every physical improvement at present is apotential threat to the provisional nature of thecamp. Urbanizing the camp, making itpermanent, might sacrifice the “right of return”to which its temporariness otherwise testifies.But a new generation of scholars and architects– prominent among them are Ismael SheikhHassan and Sari Hanafi in Lebanon, andAlessandro Petti, Nasser Abourahme and SandiHillal in Palestine – have attempted to challengethe conceptualization of refugee habitats asmere repositories of national memory.30 Thestronger the camp, they argue, the better thechances of it becoming a political space, aplatform on which refugees’ political claimscould be articulated and the struggle continued.In Nahr el-Bared in Lebanon, after its destructionby the Lebanese army in 2007, and in the campsof Gaza and those of the West Bank thatshouldered much of the burden of ongoingresistance, they worked with refugeecommunities and UN agencies to pick up therubble, to design and promote programs forcamp improvement and experimented with newpedagogical platforms in it.31đđđđđđđđđđFor those that remained in the camp, andfor those that live just outside it, they sought toreinforce the camp as a vibrant living space with

community services and political institutions. Animproved camp with open access, public spaces,new forms of educational institutions, updatedphysical and communication infrastructure andbetter homes is not a negation of the right ofreturn but rather a tool for its reinforcement.Such a camp could provide a platform forpolitical mobilization. This point of view rejectsboth the accommodation to an unjust politicalreality and the politique du pire that seeks tomaintain misery and invest it with politicalmeaning. The reconstruction of Gaza, when andif it is made possible, might mean the arrival ofsome international organizations and statedonors with a multiplicity of agendas and themeans to pursue them. Facing this well-meaningaid, refugees will have to adopt a delicateprocess of navigating between poles. Homesmust be rebuilt, infrastructure laid out, campsand life improved, not instead of but rather inorder to support political rights and thecontinuous struggle to achieve them. This willstill be much less than perfect, but it is certainlynot the choice of the lesser evil.đđđđđđđđđđ×

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Eyal Weizman is an architect, Professor of VisualCultures and director of the Centre for ResearchArchitecture at Goldsmiths, University of London.Since 2011 he also directs the European ResearchCouncil funded project, Forensic Architecture - on theplace of architecture in international humanitarianlaw. Since 2007 he is a founding member of thearchitectural collective DAAR in Beit Sahour/Palestine.His books include Mengele's Skull (with ThomasKeenan at Sterenberg Press 2012), ForensicArchitecture (dOCUMENTA13 notebook, 2012), TheLeast of all Possible Evils (Nottetempo 2009, Verso2011), Hollow Land (Verso, 2007), A Civilian Occupation(Verso, 2003), the series Territories 1,2 and 3, YellowRhythms and many articles in journals, magazines andedited books. Weizman is a regular contributor and aneditorial board member for several journals andmagazines including Humanity, Inflexions and Cabinetwhere he has edited a special issue on forensics (issue43, 2011).

đđđđđđ1Michel Foucault,đSecurity,Territory, Population: Lectures atthe College de France1977–1978, ed. Arnold I.Davidson, trans. GrahamBurchell, (London: PalgraveMacmillan, 2007), 164–73, 183.

đđđđđđ2Michael Ignatieff,đThe LesserEvil: Political Ethics in an Age ofTerror, (Princeton: PrincetonUniversity Press, 2004).

đđđđđđ3Ibid., xiv.

đđđđđđ4These refer respectively tođjus inbello andđjus ad bellum.

đđđđđđ5A former Israeli military lawyerGabriella Blum opines that ifinternational humanitarian law“is designed to minimizehumanitarian suffering withinthe constraints of war, then it isnot at all clear why measuresintended to further minimizesuffering … a choice for thelesser evil – cannot serve as ajustification,” she sayseffortlessly, “for suspending thelaw in the name of the law.”Gabriella Blum, “The Laws ofWar and the ‛Lesser Evil,’” (35YJIL 1, 2010), 3.

đđđđđđ6Relying on what is essentially aproportionality analysis, theIsraeli Commission of Inquiryinto the Methods ofInvestigation of the GeneralSecurity Service RegardingHostile Terrorist Activity,otherwise known as the LandauCommission, of 1987 reachesthe conclusion that theprohibition on torture is notabsolute, but is rather based, inits own words, upon the logic of“the lesser evil.” Thus, “theharm done by violating aprovision of the law during aninterrogation must be weighedagainst the harm to the life orperson of others which couldoccur sooner or LATER” [upper-case in the original]. USDepartment of Justice attorneyJohn Yoo similarly referred to abalance of interests whenauthorizing forms of tortureduring the Bush Administration.Itamar Mann and Omer Shatz,“The Necessity Procedure: Lawsof Torture in Israel and Beyond,1987–2009,”đLegalleft, 2011, seelegalleft.org/wp-content/uploads/2011/02/2-necessity_procedure.pdf.

đđđđđđ7Ibid., 3.

đđđđđđ8Brauman, “Learning fromDilemmas,” 136.

đđđđđđ9During the other prominentcrises of the 1990s hispronouncements and actionscalled for humanitarianism to bepositioned away from militaries– Western or otherwise. Duringthe war in Somalia it was aboutthe militarization of the

“humanitarian mission thatended up shooting many of thepeople it came to protect.Several months after themassacres in Rwanda it wasabout the way that the Hutumilitias that undertook themwere using international aid inorder to regroup and use therefugee camps as rear bases forguerilla action. He equallyprotested the way in whichRwandan and Burundian forcesused humanitarian aid as bait tocapture other Hutu refugees inZaire.

đđđđđđ10Brauman in interview,September 2010.

đđđđđđ11See especially Michel Agier,đOnthe Margins of the World: TheRefugee Experience Today, trans.David Fernbach, (London: Polity,2008).

đđđđđđ12Eyal Weizman and RonyBrauman in conversation,Columbia University, 4 February2008.

đđđđđđ13Brauman, “Learning fromDilemmas,” 141.

đđđđđđ14Michael Ignatieff, The LesserEvil: Political Ethics in an Age ofTerror, (Princeton: PrincetonUniversity Press, 2004).

đđđđđđ15Brauman in interview,September 2010.

đđđđđđ16David Rieff,đA Bed for the Night:Humanitarianism in Crisis,(London: Vintage, 2002).

đđđđđđ17Michel Agier, “The Undesirablesof the World and HowUniversality Changed Camp,” 16.May 2011, opendemocracy.net.

đđđđđđ18Agier,đOn the Margins of theWorld, 60.

đđđđđđ19Walter Benjamin, “Critique ofViolence,” trans. EdmundJephcott, in Peter Demetz,ed.,đReflections (1978), 283.

đđđđđđ20Eitan Diamond, “ReshapingInternational Humanitarian Lawto Suit the Ends of Power” at theconferenceđHumanitarianismand International HumanitarianLaw: Reflecting on Change overTime in Theory, Law, andPractice, held at the Law School,the College of ManagementAcademic Studies in RishonLezion, 16–17 December 2009.

đđđđđđ21Charles J. Dunlap, “Lawfare: ADecisive Element of 21st-Century Conflicts?,”Joint ForceQuarterly 3, (2009), 35. See alsoCharles J. Dunlap, “Law andMilitary Interventions:Preserving Humanitarian Valuesin 21st-Century Conflicts,” at

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Humanitarian Challenges inMilitary Intervention(Conference), Carr Center forHuman Rights Policy in theKennedy School of Government,Harvard University, 29 November2001. See also Charles Dunlap,“Lawfare amidWarfare,”Washington Times, 3August 2007.

đđđđđđ22David Kennedy,đOf War and Law,(Princeton: Princeton UniversityPress, 2006), 33.

đđđđđđ23Asa Kasher, “A Moral Evaluationof the Gaza War,”đJerusalemPost, 7 February 2010.

đđđđđđ24See Yotam Feldman and UriBlau, “Consent andAdvise,”đHa’aretz, 5 February2009.

đđđđđđ25Ibid.

đđđđđđ26Asa Kasher, “Operation CastLead and the Ethics of JustWar,”đAzure, no. 37, (summer,2009): 43–75.

đđđđđđ27The military’s “international lawdivision” and its operationalbranch have devised tactics thatwould allow soldiers to applywhat might be called“technologies of warning.”Delivered to homesteads bytelephone or sometimes bywarning shots, they aim to shiftpeople between legaldesignations – as soon as acivilian picks up the phone in hishome, his legal designationchanges from an “uninvolvedcivilian,”đprotected by IHL, to avoluntary “human shield” – froma subject to an object, a simplepart of the architecture.Technologies of warningintervene in the legal categoriesof both “distinction” and“proportionality”: with regard tothe former, they transfer peoplefrom illegitimate to legitimatetargets by forcing them into alegal category that is notprotected; and with regard to thelatter, they imply a differentcalculation of proportionality.Human shields are notdesignated as combatants butare not counted as uninvolvedcivilians in the calculations ofproportionality which mustassess damage against the lifelost.

đđđđđđ28John Yoo,đThe Powers of War andPeace, (Chicago: University ofChicago Press, 2005).

đđđđđđ29Itamar Mann and Omer Shatz,“The Necessity Procedure: Lawsof Torture in Israel and Beyond,1987–2009,”đLegalleft, 2011, seelegalleft.org/wp-content/uploads/2011/02/2-necessity_procedure.pdf.

đđđđđđ30Some of these crimes were infact investigated and prosecuted

by the Israeli military’s courts.Human Rights Watch, “WitnessAccounts and AdditionalAnalysis of IDF Use of WhitePhosphorus,” online, 25 March2009. Seehrw.org/en/news/2009/03/25/witness-accounts-and-additional-analysis-idf-use-white-phosphorus.

đđđđđđ31In the nineteenth century,photographs as courtroomevidence were often understoodas pale substitutes for evidence,posing legal challenges and evenbeing referred to as “the hearsayof the sun.” Photographic imageswere banned from courts. Butonce entered, they still weretreated with much suspicion andultimately had to prove theirstatus as reliable evidence. See:Joel Snyder, “Res Ipsa Loquitur,”Lorraine Daston, ed.,Things ThatTalk: Object Lessons from Artand Science, (New York: ZoneBooks, 2007).

đđđđđđ31Seehttp://www.campusincamps.ps/

đđđđđđđ

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