Defining Civilians: the Public Committee against Torture in Israel and the Palestinian

Society for the Protection of Human Rights and the Environment v. the Government of

Israel et al. and the Application of Critical Legal Studies

Abstract

This paper examines the theory of critical legal studies as defined by Robert Gordon and

assesses the relevance of the theory in application to the December 2006 Israeli Supreme Court

case, “the Public Committee against Torture in Israel and the Palestinian Society for the

Protection of Human Rights and the Environment v. the Government of Israel et al.” This paper

will argue critical legal studies is relevant and vital to understanding the case. Critical legal

studies posits legal discourse unconsciously supports those in power. However, the theory also

argues deconstruction and genealogy creation may help alleviate this bias. The Israeli

government highlights bias supporting terrorists in international humanitarian law, deconstructs

the assumptions behind laws regulating combat and creates a genealogy of the legal

differentiation between civilian and combatant. Because the Israeli government used

argumentative tactics endorsed by critical legal studies, this paper argues the theory is relevant to

the case.

Argument

Preventative strikes, or a policy of targeting designated security threats before they are

given the opportunity to attack a state, are an essential component of Israeli national security.

Specifically, the government of Israel issues preventative strikes against individuals in the Gaza

Strip, Judea or Samaria noted as a risk for issuing attacks both against the Israeli military and

civilians in the area, whom the Israeli government have defined as terrorists. The exchange of

violence between Israel and terrorists targeted with preventative strikes constitutes an armed

conflict, necessitating the application of humanitarian law in regulating military procedures

during the conflict; however, those targeted do not fit the legal requirements to be protected as

either combatants or civilians, who may not be targeted during armed conflict. A Judicial

decision in December, 2006 case, “the Public Committee against Torture in Israel and the

Palestinian Society for the Protection of Human Rights and the Environment v. the Government

of Israel et al.,” (noted as PCTI v. GoI) attempts to determine whether or not Israel acted

illegally in targeting terrorists with preventative strikes, defining the terrorists as neither

combatants nor civilians, but rather, “unlawful combatants.” In order to do so, the judgement

questions the legitimacy of typical legal discourse, deconstructs the legal preference for one

definition of “civilian” and sketches a genealogy of the legal differentiation between combatant

and civilian in armed conflict. Each of these actions are an essential component of the theory of

critical legal studies as described by Robert Gordon; therefore, his theory is not only relevant to

the case, but a vital tool in understanding how the final judicial decision was reached. In order to

demonstrate the theory’s relevance and importance to the case, the paper will first define and

assess each of the three tenets of critical legal studies before applying the tenets of the theory to

the decision in PCTI v. GoI.

Although critical legal studies is, in itself, a broad field of legal analysis, Gordon narrows

the method of analysis into a framework for evaluating often overlooked assumptions and biases

in a case. In narrowing critical legal studies into a consistent theory, Gordon emphasizes one

problem and two practices for addressing it: legal discourse legitimizes an unconscious bias

which may be revealed through deconstruction and highlighted as false by establishing the

history of the legal question.

First, critical legal studies suggests legal discourse legitimizes an unconscious bias

towards a community’s most powerful members. The processes of arriving at legal decisions,

including argumentation, reasoning and judgement, each presuppose the validity of certain social

norms. These norms favor the powerful (Gordon 214). Courtroom proceedings are a performance

of social ordering occurring in a microcosm. Once certain social norms are taken for granted,

legal decisions are built upon them, with reasoning which only reinforcesreinforcing the current

social order. For instance, affirmative action cases presuppose standardized test scores measure

“objective merit,” which is then “set aside to let” the applicant into the school (Gordon 214). The

worthiness of standardized testing to evaluate student potential is not questioned; instead, racism

is addressed by considering whether to adjust the perception of the test in evaluating students

from different races and backgrounds. This reinforces the power of students belonging to social

groups already likely to score well on the test by suggesting scores are not tied to access to aid,

like private tutors or stronger classrooms, but tied to race. The legal discourse of the case frames

one social group as inherently less likely to achieve as another, rather than dismantling the

measure of achievement. One may argue legal discourse is also be employed by those lacking

power in the existing social order to advocate for change. However, this argument overlooks how

those without power frame their argument. Even when pushing for a fundamental change in the

social order through legal decisions, those without power tend to frame their argument as

adapting to social norms, rather than arguing for their destruction (Gordon 213). For example, in

“Oberfell v. Hodges,” the U.S. Supreme Court effectively reduced the power of states to define

marriage, rather than questioning the righteousness of marriage as a social institution (Denniston

1). While this expanded recognition to same-sex marriages, the decision also reinforced the

power of monogamous couples who could marry, while polygamous couples or those who

choose not to marry were marginalized by the inherent bias in assuming marriage should remain

institutional, as the link between government and marriage was unquestioned. Similarly, typical

legal discourse reinforces bias towards a community’s most powerful members.

Second, critical legal studies argues the assumptions inherent in legal discourse may be

challenged through deconstruction. Deconstruction refers to a method of analysis which

illustrates “structures of contradiction” (Gordon 216). In many fields of law, two underlying

thoughts supporting and framing the legal interaction may contradict; one is often supported in

favor of the other, though both are equally valid (Gordon 216). By highlighting the marginalized

worldview, one may challenge the inherent bias of legal discourse. This reveals an important

strength of the theory of critical legal studies: solutions to legal problems become both more

apparent and more applicable when initial bias is deconstructed. For instance, contract law

assumes both that individuals cannot trust one another in business and that “cooperation is the

norm;” however, the norm of cooperation is marginalized in legal contract proceedings in favor

of an environment of distrust (Gordon 216). In emphasizing the foundational norm of

cooperation in contract negotiations, in which both sides come together to reach an agreeable

compromise, an attorney might deconstruct the bias towards corporations less likely to trust

individual employees. One might point out that not every legal proceeding relies on a binary of

contradicting thoughts in order to arrive at a conclusion, as many arguments are debated before a

finding is reached. However, this argument applies a macro view to a method which functions on

a micro level. Arguments in a legal case might be numerous, but each argument may be broken

down into two zero-sum ideas: one favored for its role in supporting the goal of the argument,

and one pushed away. By deconstructing the argument, one might challenge its inherent bias.

Third, critical legal studies holds that by constructing a genealogy of the legal issues at

hand in a case, legal precedent is revealed to be less than concrete and the assumptions inherent

to current legal discourse are revealed as formerly contested ideas. Sketching the genealogy of

legal precedent suggests laws seen as concrete and infallible are actually “fiercely struggled over,

so that any conventional stability” is now viewed as “nothing more than a temporary truce”

(Gordon 216). In order to attack the biases inherent to legal discourse, one must first prove the

components of the discourse are fragile enough to be broken, or that the social order upheld by

legal discourse may actually be changed. In doing so, the marginalized position is given

legitimacy. For example, in a case assessing the rights of a mall owner to remove picketers from

the property, establishing a genealogy of property rights, reveals the mall was not always

considered “private property.” This suggests picketers had a right to demonstrate on the property

even though they were not property holders (Gordon 216-217). It is true some laws may not have

a history of redefinition or contention, making genealogy construction less effective when

applied to new or uncontested laws. This highlights a potential weakness of the theory. However,

the theory does still apply to laws with a long history of legal debate. For instance, highlighting

the history of the right to privacy is significantly more helpful in assessing the biases inherent to

the legal abortion debate than it is to analyzing a state tax statute. Creating a genealogy of legal

precedent suggests social norms are not indestructible and establishes a potential path to their

dismantling.

If the terrorists targeted in preventative strikes were legally civilians, Israel would have

violated international humanitarian law in killing them. However, if the terrorists were

considered combatants, those captured rather than killed in the strikes would receive the

protections of prisoners of war. Israel had a vested security interest in proving the terrorists were

legally neither civilians nor combatants. Gordon’s theory of critical legal studies is essential to

understanding how Israel was able to do so.

First, the government of Israel revealed an unconscious bias favoring non-state actors in

international humanitarian legal discourse. International humanitarian law dictates prolonged

fighting between a state and insurgent groups constitutes an international armed conflict, even

when the fighting takes place in one geographical area. This legitimizes insurgencies by

suggesting they are as equally deserving of humanitarian protection as a foreign army

(International Committee of the Red Cross [noted as ICRC]). Additionally, the Israeli

government pointed out any individual not found to be a combatant under international

humanitarian law is considered a civilian, which provides humanitarian protections to said

individuals regardless of whether or not they are engaged in fighting (ICRC). The argument

revealed the underlying assumption that anyone not affiliated with a state military was a civilian.

This reinforced the power of the terrorists, who did not meet all of the legal requirements to be

defined as combatants. One might argue the purpose of revealing the gap between civilian and

combatant in humanitarian law was not to reveal norms protecting non-military combatants or

critique humanitarian law itself, but instead to avoid aligning with previous legal precedent

concerning the death of either civilians or combatants for a more favorable legal decision. As

such, the Israeli government would actually be reinforcing humanitarian law because they would

be equally complicit in assuming legal precedent concerning civilians or combatants is well

founded, even if hoping it is not applicable, making critical legal studies less relevant to the case.

However, in pointing out not only that noncombatants are considered civilians, but also that

humanitarian protections then apply even to those engaged in combat, the government of Israel

reveals a problem inherent to humanitarian law which may be applied to cases outside PTIC v.

GoI. The broad applications of the argument suggest it does critique the law, making critical

legal studies applicable to the case.

Second, critical legal studies reveals how the Israeli government deconstructed

humanitarian protections in international law. The Israeli government highlights how laws

extending humanitarian protections to combatants assume both that combatants will clearly

distinguish themselves as such, while military effectiveness must also be legally protected in

order to best discover and attack enemy forces (ICRC). The assumptions are predicated on the

contradictory assumption that both forces are willing to participate in legal warfare and that both

forces are also determined to win at all costs. Equally, those not distinguished as combatants are

not to be targeted under any circumstances, as they are considered civilians (ICRC). This

stipulation suggests the idea of military forces as willing participants in humanitarian warfare is

favored in international humanitarian law. In order to argue those targeted by preventative strikes

should not be extended humanitarian protection, the Israeli government highlighted the terrorists’

willingness to engage in violence and determination to win against the Israeli government

regardless of humanitarian law: “they do not differentiate from the civilian population and they

do not follow the laws of war” (ICRC). This statement places the blame for the casualties of

civilians not engaged in combat with the terrorists, and highlights the otherwise marginalized

idea that any force engaged in combat would rather win than abide by laws regulating war,

deconstructing the assumptions behind combatant and civilian definitions in humanitarian law.

Although one could argue both views of forces engaged in combat are equally highlighted in

humanitarian law, making deconstruction less necessary and critical legal studies less relevant,

this argument neglects the narrow scope of deconstruction. While both views of combatant

forces may be broadly supported in interpretations of humanitarian law, one is certainly

marginalized in the application of humanitarian law to this case, as the legal discourse used in

this instance only supports one view individuals engaged in war. This makes the Israeli

government’s use of deconstruction necessary, and ensures the theory of critical legal studies is

relevant to the case.

Finally, the Israeli government establishes a genealogy of the delineation between

combatant and civilian, matching the theory of critical legal studies. The government of Israel

initially argued Israel was not signatory to the treaties used to differentiate between civilians and

combatants. Although customary law still bound Israel to follow the international norms

establishing these protections, the government of Israel also had objected to these norms when

other states began arguing their application was customary, suggesting the current legal

delineation between combatant and civilian was more arbitrary than concrete and more social

norm than natural law (ICRC). The genealogy was ultimately effective: although Emeritus

Barak, the lead Justice for the case, found no legal precedent for defining the terrorists as

“unlawful combatants” under humanitarian law, he did find “new reality at times requires new

interpretation” (ICRC). By establishing humanitarian law as flexible through a genealogy of

Israel’s dissent to the legal distinctions between civilian and combatant, the government of Israel

was able to argue for a new category under which to define terrorists which extended them

neither civilian nor combatant humanitarian protections. It is possible to argue critical legal

studies is not relevant to this case because the government of Israel was not trying to highlight a

history of the legal definitions of civilian and combatant, but to argue that because Israel had

dissented from the customary law distinguishing between these groups the laws extending

humanitarian protections to combatants or civilians should not be applied to this case. However,

the structure of the Israeli government’s arguments suggest this is not true. An argument

intended only to suggest law should not be applicable because the state never consented to the

law would be strengthened by highlighting the reasons why the country was never signatory to

the law in the first place. The timeline of dissent would not matter as much as the reasons for

protest. In contrast, the Israeli government prioritized describing how the delineation between

civilian and combatant was formed and the timeline of dissent from the Israeli government. This

suggests the government was more interested in establishing a history of the law as changeable

and flexible, rather than arguing the law should not apply to their case. Therefore, critical legal

studies is still an applicable theory to this case.

Conclusion

The theory of critical legal studies is not only relevant but essential to fully understanding

PCTI v. GoI. Critical legal studies suggests legal discourse favors social institutions which

reinforce the strength of a community’s most powerful members, and highlights how this favor

may be combatted through deconstruction and genealogy creation. In arguing terrorists are

neither combatants nor civilians, but instead unlawful combatants, the government of Israel

reveals the bias favoring non-military fighters in international humanitarian law. It then proceeds

to fight this bias by deconstructing the assumptions behind international humanitarian

protections and establishing a genealogy of the laws defining the two groups. In arguing for a

third group of participants in a war not covered by either combatant or civilian international

humanitarian protections, the government of Israel has loosened restrictions on fighting non-state

actors and combating terrorism on a global stage.

Bibliography

Gordon, Robert W. "Critical Legal Studies." Readings in the Philosophy of Law. Ed. Charlyce J.

Owens. 4th ed. London: Pearson Pretense Hall, 2006. 214-20. Print.

Denniston, Lyle. "Constitution Check: Did the Supreme Court Take Away States’ Power over

Marriage?" Yahoo! News. Yahoo!, 08 Sept. 2015. Web. 21 Nov. 2015.

"Israel, The Targeted Killings Case." - ICRC. International Committee of the Red Cross, n.d.

Web. 21 Nov. 2015.