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This introductory chapter provides an overview of the book’s scope, aims, methods, and arguments. It argues that in recent decades the United States and Israel have been at the forefront of efforts to widen the scope and space of what constitutes a permissible military target. This has been achieved not by ignoring or circumventing the laws of war but through extensive and diligent interpretive legal work. These interpretive efforts signal not so much an assault on international law (as some have claimed); rather, they represent an assault through international law, whereby its language and content are employed in the service of mission success. The chapter also explains how and why military lawyers became integrated in the ‘kill chain’—the bureaucratic process by which targets are identified and attacked. Key legal, military, and analytical terms are explained en route.

This chapter focuses on the role military lawyers play in military operations, based on the assumption that an understanding of who Judge Advocates are and how they perform their mission supporting the U.S. warfighter is essential to understanding U.S. military operations in general. This chapter briefly describes the evolution of operational law, or “op law” as those in the Army call it; touches upon the structure of the provision of legal services in each military branch; explains military culture; and identifies particular roles for Judge Advocates. The chapter concludes with the author’s recommended “Rules of the Road” for Judge Advocates in the twenty-first century. Although various military organizational structures and doctrines evolve and change, much of the following will continue to ring true, though perhaps altered a bit to fit new paradigms.

This chapter argues that the US-led war in Vietnam (1955–1975) paved the way for institutional changes in the US military, including the establishment of the US Law of War Program, which later precipitated the emergence of a new doctrinal approach to the laws of war called ‘operational law’. Military lawyers emerged from the Vietnam War better equipped and with a formal mandate to advise military commanders on the legality of targeting operations. Military lawyers performed a wide range of duties in Vietnam, especially around Prisoner of War (POW) issues, and were deployed in unprecedented numbers. Military lawyers were not involved in targeting, neither during ‘Operation Rolling Thunder’ nor ‘Operation Linebacker’, but the Vietnam War in general and the My Lai massacre of 1968 in particular helped to create the conditions for their involvement in subsequent wars.

This is the first of two chapters analysing the role of military lawyers in the contemporary US kill chain. This chapter focuses on deliberate (planned) targeting operations and the routine nature of legal advice at a key location in the US targeting apparatus—the Combined Air Operations Center (CAOC) in Qatar. Military lawyers participate throughout the ‘targeting cycle’ giving legal, operational, and public relations advice. In contrast to inflated claims about the ‘total’ visibility of the battlespace, planned operations are beset with gaps in intelligence and emergent events. Legal oversight is far from complete, given the scale of lawyer deployment. Moreover, the legal frameworks that military lawyers bring to bear on the kill chain are malleable and open to a wide range of interpretations. In practice, this means that the constraining function of targeting law often loses out to its enabling function with consequences for who and what is targeted.

In this chapter, it is suggested that the focus of the application of the principle of proportionality in practice lies in the procedural aspects of the principle—the precautions taken before an attack, the decision-making processes, and the institutions put in place in order to verify whether the rule of proportionality was applied. Based on this insight, the chapter concludes proportionality is a highly bureaucratized mode of operation, in which a specific set of procedures is followed. These procedures are justified both because they create a heightened awareness of the value of human lifes, and because they provide an effective way to control the actions of soldiers. The chapter then discusses several aspects of this procedural approach: the proper decision-maker; the requirement to provide advanced warnings; the duty to gather intelligence before an attack is launched; and the role of the military legal advisor.

This chapter focuses on Hamas’s use of “battlefield lawfare”—battlefield tactics designed to gain advantage from the greater leverage that the law of armed conflict (LOAC) and its processes exert over Israel than Hamas. Section I analyzes Hamas’s battlefield lawfare, including violating LOAC so as to elicit alleged Israeli violations of LOAC. Section II addresses claims that Israel itself has, usually in response to Hamas battlefield lawfare, violated LOAC. Section III describes Israeli military steps to protect itself against Hamas battlefield lawfare, including changes to Israeli battlefield tactics; enhancing Israel’s legal public diplomacy; expanding the role of military lawyers in Israel’s combat decision-making; enhancing Israel’s own investigations into alleged war crimes by its troops; and providing the press and public with data illustrating Israeli targeting decision-making. Section IV addresses broad lessons learned and the future of Hamas battlefield lawfare and Israeli responses.

This chapter is the second of two chapters that analyse the role of military lawyers in the contemporary US kill chain. It focuses on dynamic (unplanned) targeting and shows how its ontology of violence necessitates rapid forms of decision making that affects both the possibility of legal advice and its content. An examination of close air support (CAS) and troops in contact (TIC) targeting operations reveals the rapid legal and operational interpretations that military actors form as they attempt to make sense of highly mobile targets and fast-moving events. These involve issues of self-defence, imminence of threats, and proportionality. It is argued that dynamic and time-sensitive targeting create their own unique military ‘necessities’ and governing legalities. The chapter shows that the latitude given to interpretational work has real-world consequences for both troops on the ground and civilians: dynamic targeting accounts for a high proportion of fratricides and civilian casualties.