Making Endless War

Making Endless War
Law, Meaning, and Violence

The scope of Law, Meaning, and Violence is defined by the wide-ranging scholarly debates sig-
naled by each of the words in the title. Those debates have taken place among and between law-
yers, anthropologists, political theorists, sociologists, and historians, as well as literary and cul-
tural critics. This series is intended to recognize the importance of such ongoing conversations
about law, meaning, and violence as well as to encourage and further them.
Series Editors: Martha Minow, Harvard Law School
Austin Sarat, Amherst College
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MA K IN G E N D L E S S WA R
The Vietnam and Arab-Israeli Conflicts

in the History of International Law
Edited by Brian Cuddy and Victor Kattan
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Cover illustrations: Vietnam Army Pith Helmet on bamboo pole in rice field, courtesy
Shutterstock.com / Aaron Herron. Palestinian Intifada boy with rocks in hands ready for
fight, courtesy Shutterstock.com / Zurijeta.
For our children,
Lara, Gabrielle, and Rosemary,
and
Zachariah
Contents
Foreword: How International Law Evolves—

Norms, Precedents, and Geopolitics ix
Richard Falk
1 The Transformation of International Law and War

between the Middle East and Vietnam 1
Brian Cuddy and Victor Kattan
2 From Retaliation to Anticipation: Reconciling Reprisals and
Self-Defense in the Middle East and Vietnam, 1949–65 26
Brian Cuddy
3 Public Discourses of International Law:
US Debates on Military Intervention in Vietnam, 1965–67 56
Madelaine Chiam and Brian Cuddy
4 Legality of Military Action by Egypt and Syria in October 1973 87
John Quigley
5 Revolutionary War and the Development of International
Humanitarian Law 112
Amanda Alexander
6 The War Against the People and the People’s War:
Palestine and the Additional Protocols to the
Geneva Conventions 145
Ihab Shalbak and Jessica Whyte
viii Contents
7 “The Third World Is a Problem”: Arguments about the

Laws of War in the United States after the Fall of Saigon 173
Victor Kattan
8 Operationalizing International Law: From Vietnam to Gaza 207
Craig Jones
9 From Vietnam to Palestine:
Peoples’ Tribunals and the Juridification of Resistance 233
Tor Krever
10 War and the Shaping of International Law:
From the Cold War to the War on Terror 261
Acknowledgments 291
Contributors 293
Index 295
Foreword
How International Law Evolves—
Norms, Precedents, and Geopolitics
Richard Falk
Prologue
We should understand that this volume devoted to the relevance of inter-

national law to these two geographically distinct war zones in the Middle
East and Southeast Asia in the period after World War II is a very distinc-
tive undertaking. I am not familiar with any similar search for compari-
sons and connections, either in relation to the Indochina or Arab-Israeli
conflicts, with respect to lawmaking interactions and potentialities. What
is notable about this inquiry is that it considers the interaction between
regional scale conflicts to be both a source of new norms of international
law and occasions for evasions and justifications of existing norms.
My point of departure is to take note of the motivation of the lead
political actors in both conflict configurations to evade the constraints on
the use of force imposed by the UN Charter, a constitutional framework
for international law drafted under the primary influence of World War II
and later made more urgent by the use of atomic bombs against Japanese
cities. This influence expressed itself by the adoption of a war prevention
rationale powerfully set forth in the opening words of the Charter Pre-
amble, “to save succeeding generations from the scourge of war.” This lan-
x Foreword
guage was a response not only to the devastation associated with the thus
concluded war with its 60 million deaths but to the fear that a future war of
similar or greater proportions would bring even more catastrophic results
for the entire world. The Charter norms on the use of force were designed
to be very constraining, suggesting that recourse to force by states was to
be legal only if undertaken in self-defense against a prior armed attack
[Articles 2(4), 51 of the UN Charter] or in response to a decision of the
Security Council. As the editors’ opening chapter suggests, the Charter car-
ried forward the transformational ambitions to prohibit international war-
making and coercive diplomacy by constraining legally mandated recourses
to international uses of force as comprehensibly as possible. It should be
understood that these ambitions were always tied to the self-restraint of
and harmony among the five permanent members of the Security Council
who enjoyed a right of veto, which effectively exempted them from an
obligatory connection with the international legal norms governing force
set forth in the Charter. Even if the General Assembly attempted to fill this
gap between international law and geopolitical privilege its authority was
constitutionally limited to making “recommendations,” nothing more.
The geopolitical condition of fragile and always partial harmony pre-
vailed in 1945 as a result of the recent victory over fascism achieved by the
Allied Powers. The UN was established with some hope, although con-
tested by political realists from its inception, that the combination of these
restraining norms and the collective security mechanisms of the Security
Council could ensure a peaceful world. Such idealistic expectations were
challenged by the Korean War (1950–53) and by the 1956 Suez Crisis and
Operation, and above all by the outbreak of the Cold War. Nevertheless,
until the decade of the 1960s there remained a superficial attachment by
the geopolitical antagonists to the UN Charter framework constraining
aggressive war-making as the focus continued to be on the avoidance of
a third world war or any disregard of the taboo prohibiting recourse to
nuclear weaponry.
This changed in the decade of the 1960s. It became clear that the vic-
tors in World War II were faced with significant geopolitical challenges
that could not be addressed by adhering to the Charter norms. This was
made apparent in the Indochina War, especially its Vietnam central arena.
The Charter notion of self-defense was not applicable nor would the
American extension of the war to North Vietnam in 1965 have enabled the
Security Council to restore peace due to the veto power possessed by the
geopolitical antagonists, the Soviet Union and the United States. For these
reasons the Indochina War, despite its scale and level of destruction, was
Foreword xi
undertaken without heeding or seriously engaging the UN framework or

contemporary international law.1 The US government, in particular, issued
elaborate documentary justifications for the forcible actions undertaken by
invoking international law. Its legal rationalizations were partisan in nature
and one-sided, and as such unconvincing to the scholarly community of
international jurists.
As well, both in Indochina and the Middle East the warfare that resulted
was not between political entities of symmetric technological capabilities
and tactics. International law had been evolved to address wars fought
between sovereign states of roughly equivalent technological capabilities
and was concerned with limiting and regulating war rather than outlawing
it. The experience of World War II convinced the victors that there was
a gap in the legal framework concerning the protection of civilians living
under military occupation, captured prisoners of war, and the treatment of
wounded soldiers on the battlefield. This realization resulted in the nego-
tiation of the four Geneva Conventions of 1949, a new corpus of law that
became known as “international humanitarian law.”
Yet these Geneva Conventions were still preoccupied with wars between
sovereign states. What was shown by the Indochina and Middle East wars
of the 1960s was the importance of extending international humanitarian
law (IHL) to conditions of sustained warfare within sovereign states, espe-
cially when magnified in intensity by external interventions, proxy wars,
and geopolitical alignments. Acknowledging the prevalence of this new
type of violent conflict gave rise to the two 1977 Geneva Protocols that
were deemed supplemental to the 1949 treaties. In particular, Protocol I
dealing with the Protection of Victims in International Armed Conflicts
was a tricky area for international law as it challenged the sovereign rights
of the territorial government, and even trickier for the United States as it
explicitly extended the protection of IHL to armed conflicts in which a
people are fighting against colonial domination, alien occupation, or rac-
ist regimes.2 This meant that Protocol I applied to foreign interventions
in domestic armed conflicts that were struggles over the control of the
state. Protocol II was somewhat less controversial as it extended IHL to
non-international conflicts and did not have any bearing on intervention-
ary diplomacy, although it did seek IHL accountability for purely internal
wars, purporting to put legal limits on previously unlimited territorial sov-
ereign rights.
By considering such conflicts as entitled to international protection it
was perceived as weakening the sovereign authority of states to deal with
insurgent opposition movements without being subject to international
xii Foreword
legal accountability. This resistance to the internationalization of antico-

lonial struggles pertains directly to the Vietnam and Palestinian experi-
ences. Indeed, the diplomacy producing the Protocol was prompted by the
tactics and experience of the Vietnam War, which exhibited gaps in the
coverage of international humanitarian law as specified by the four Geneva
Conventions of 1949.3 The importance of exempting such armed conflicts
from IHL is part of the geopolitical effort to retain freedom of geopo-
litical maneuver, as Cuddy and Kattan explain, in the momentous inter-
national shift from the earlier international law focus on total war to the
new realities of endless wars. Protecting civilian populations in this new
epoch of postcolonial warfare, as in Syria, Yemen, Afghanistan, Iraq, Libya,
and Ukraine, are suggestive of the need for further renovation of IHL,
and indeed the overall law of war framework. A merit of this volume is to
frame this transition by reference to the Vietnam and Middle East expe-
riences, with particular reference to the unresolved Palestinian struggle.
This struggle has taken on a new relevance in the last six years as a result
of an emergent civil society consensus that Israel’s apartheid policies and
practices are blocking the realization of the long denied basic rights of the
Palestinian people.4
In assessing these legal developments two features of international
political society are paramount and need to be kept in mind when discuss-
ing the two geographically and psycho-politically distinct war zones:
—the primacy of geopolitics vis-a-vis international law;

—the primacy of military necessity in combat situations.
These two realities, given the absence of centralized governmental institu-

tions on a global level, have accentuated the marginality of international
law in war/peace situations, both with respect to recourse to force and the
behavior of the parties in the course of warfare.
Acknowledging these two definitive constraints on the role of interna-
tional law in relation to war should not lead us to cynical conclusions that
“law is irrelevant with respect to war” or that “international law does not
matter.” International law is relevant and matters for several reasons: it
empowers civil society activism; it provides a channel for domestic dissent
from war-making in democratic societies in both government circles and
civil society; and it moderates behavior to the extent that reciprocal inter-
ests support compliance with international legal norms (e.g., treatment of
prisoners of war).
During the Vietnam War, the US government was more eager than
Foreword xiii
subsequently to retain its liberal image as a champion of a rule-governed

international order, and so it went to great lengths to argue that its poli-
cies and practices in Vietnam accorded with international law and the
UN Charter. Such eagerness also legitimated antiwar activism that could
invoke international law to challenge Washington’s behavior in Vietnam. It
also emboldened critics in Congress to mount objections framed in legal
and constitutional language, and allowed international law scholars like
myself to be invited to testify before congressional committees or have
opinion pieces published in mainstream media venues.5
Unfortunately, with the rightest drift in American politics and the lob-
bying leverage of the American Israel Public Affairs Committee (AIPAC)
and other Zionist groups, the authority of international law and the UN
have experienced sharp declines. The United States no longer invests
diplomatic energy in upholding a liberal image and increasingly relies on
coercive threats and militarism to pursue its foreign policy goals, especially
in the Middle East. The reliance on unlawful threats of military attack has
been at the core of US/Israeli/Saudi confrontational diplomacy directed at
Iran for several decades. This trend has reached a symbolic climax of sorts
by its imposition of sanctions on the former Prosecutor of the Interna-
tional Criminal Court (ICC) for recommending an investigation of US war
crimes in Afghanistan. Israel also has responded with a furious denuncia-
tion of this international institution for daring to propose a limited inves-
tigation of its crimes in Occupied Palestine. Although the US government
after a change in presidential leadership terminated its sanctions imposed
on ICC officials, it did not accept the extension of ICC authority to inves-
tigate allegations against itself or Israel. Since the Ukrainian Crisis of 2022,
the US government has displayed a mixture of hypocrisy and opportunism
by urging ICC investigation of Russian war crimes in Ukraine.
The fury of these reactions suggests two opposite interpretations. The
first, and most obvious, is the refusal of leading states to defer to interna-
tional law in settings where national security issues or geopolitical align-
ments are paramount. And the second, that the fury of the reactions to
legally framed allegations suggest how deeply sensitive the governments
of such states become when accused of serious violations of international
law by credible procedures. In response, such governments do not try to
defend their behavior but move to discredit and weaken international pro-
cedures of accountability, in part, as a form of damage control to avoid
any worsening of their international reputations. Even if the ICC were to
prosecute and convict, there is almost no prospect that its judgments would
be enforced, and so the whole pushback is about safeguarding legitimacy
xiv Foreword
and opposing impingements by symbolic politics on traditional spheres of

geopolitical and sovereign autonomy.
A Brief Comment on the Two War Zones
For the United States in Vietnam the Charter norms were perceived as
inconsistent with the political mission of preventing a communist victory
in South Vietnam and a subsequent unification of Vietnam under the con-
trol of Hanoi. It was believed in Washington that it was militarily neces-
sary to extend the war zone beyond the boundaries of South Vietnam to
punish North Vietnam for supplying weaponry and personnel to the anti-
regime insurgency led by the National Liberation Front (NLF). Similarly,
the extensions of the war to Laos and Cambodia were prompted by cal-
culations associated with disrupting the support of the war in South Viet-
nam by keeping a base area in and maintaining supply chains that passed
through Cambodia. Similar reasoning produced sustained air attacks on
Laos, unlawfully abusing diplomatic privileges by orchestrating this mili-
tary campaign from within the American Embassy in the Laotian capital
city of Vientiane. In other words, the Cold War priorities prevailed over
efforts to constrain recourse to war and tactics in war. On the other side,
the priorities of national liberation and anticolonial legitimacy also pre-
vailed over legal constraints.
In the Middle East there were similar factors at work, although tem-
pered by some balancing considerations. The United States was still in the
1960s seeking to balance its commitment to Israel with its vital strategic
interests in retaining favorable access to regional oil supplies at affordable
prices situated in Arab countries. In this respect, contrary to Israel’s wishes
at the time, the United States, along with European countries, sought to
affirm international law with respect to the acquisition of territory by force,
the major premise of the unanimous UN Security Resolution 242 adopted
after the 1967 war. Yet even then there was insufficient political will to
implement the rhetoric, by an insistence on a timely Israeli withdrawal.
Of even greater relevance to the focus of this volume is the degree
to which antagonists in the Middle East with respect to Israel/Palestine
evaded the Charter norm on recourse to war. Israel in 1967 and Egypt
in 1973 both sought to gain military advantage by striking first, and thus
apparently violating the requirement of a prior armed attack contained in
Article 51, although there are respectable legal counterarguments in both
Foreword xv
settings.6 Both governments defended their actions by claiming security

imperatives as providing a convincing “legal” rationale for preemption.
As far as interconnections are concerned, both war zones produced
conflicts that ignored the fundamental framework of international law
and institutional accountability that was the hallmark of the war preven-
tion efforts after World War II. The asymmetric nature of the wars also
strained the law of war during combat, especially in Indochina, but also in
the Middle East to the extent that warfare after 1967 shifted to Palestinian
temporary efforts to pursue an armed struggle strategy that was designated
as “terrorism” by Israel and its supporters.7 Such a rationale had been used
by the United States in Vietnam, but with less impact due to the outcome
of the struggle and the absence of widespread support for the war in the
West, including even in the United States in its last stages.
International Law Evolves
Against this background it becomes possible to get a better appreciation

of how international law evolves. It is important to realize that in some
sense all of international law is “soft law” because of the absence of regular
procedures of authoritative interpretation and enforcement, not to men-
tion “the geopolitical exemption” of the winners of World War II implicit
in the right of veto conferred by the Charter. Added to this, international
law in relation to peace and security issues suffers from the special issues
previously mentioned—essentially the primacy of geopolitics and of mili-
tary necessity. Geopolitics manipulates the law governing recourse to force,
while military necessity by its priority under combat circumstances is con-
stantly reshaping the law involving the use of force.
A major interconnection between Indochina and the Middle East is
illustrative. In Indochina, the United States created a strong precedent for
disregarding the Charter conceptions governing the law on the recourse to
force. It put forward some legal justifications to the effect that North Viet-
nam was guilty of “indirect aggression” by its support of the insurgency in
the South, creating a legal foundation for extending the war beyond the
confines of South Vietnam. After the 1964 Gulf of Tonkin alleged attack
on American naval vessels in international waters and the February 1965
NLF attack on a US military camp near Pleiku, the US government shifted
its legal rationale to one of collective self-defense against a prior armed
attack.8 It also contended that Cambodia and Laos violated the laws of
xvi Foreword
war governing neutrality by allowing their territories to be used for hostile

purposes associated with North Vietnam’s belligerent activities.
Although Israel in 1967 and Egypt in 1973 did not specifically invoke
the American precedents set in the Vietnam War, their conduct was shielded
from critical scrutiny by the combination of a weakening of the geopolitical
commitment to the Charter conception of permissible recourse to force,
and by the sense that these specific recourses to force were within their
context “reasonable.” Because of the geopolitical alignment with Israel,
the Egyptian surprise attack on Israel was legally condemned by Western
countries, but in a manner that made it appear to be more an expression
of alliance diplomacy than a pronouncement of allegiance to international
law. Such a view gains weight from the pattern of practice in years subse-
quent to 1973.
It was also evident that the West controlled international legal discourse
on permissible and impermissible uses of force. In this way the violence
of nonstate actors and liberation movements was demonized as “terror-
ism” while state violence, even if directed at civilian targets, was treated
under rubrics of security and self-defense rather than delimited as “state
terror.” Such a discourse gained wider impacts after the 9/11 attacks on
the United States, and through the launch of the so-called War on Terror.
It has impacted strongly in the Middle East contexts, especially allowing
Israel to validate its excessive force and collective punishment as security
measures or as the exercise of the right of every sovereign state to defend
itself. To some extent, especially in recent years, the UN has challenged
this discourse by issuing many reports on Israeli violations of the Geneva
Conventions and international humanitarian law more generally. This ten-
sion between the geopolitical discourse and the UN discourse is what leads
the United States and Israel, in particular, to make accusations about UN
bias when it comes to violations of international law. It is this tension, how-
ever, that enables civil society initiatives to claim the legitimacy of inter-
national law, as is the case with support for the Boycott, Divestment, and
Sanctions Campaign (BDS) or by mounting challenges to Israeli apartheid.
It should be noted, in passing, that when Western interests are engaged,
as by Russia’s 2022 attack on Ukraine, the Charter framework is again
invoked as if it is as authoritative and constraining as when adopted in
1945. In other words, the fate of norms is tied to the control of the inter-
national normative discourse, and especially in relation to the geopolitics
of propaganda.9
Foreword xvii
Conclusion
The main conclusion reached is that the Charter framework established in

1945 was greatly weakened, if not altogether rendered somewhat anachro-
nistic, by the combined impact of geopolitical opportunism and military
circumstances in the wars taking place in Indochina and the Middle East in
the decades after World War II. To some extent, it can be asserted that the
Charter framework was always unrealistic given the character of a state-
centric world order system that included hegemonic actors recognized as
such by their right of veto in the UN Security Council, a disempowering
reality that was fully disclosed after the onset of the Cold War. The nature
of the conflicts, which consisted of nationalist movements, was also not
anticipated by the kind of legal order envisioned for the post–World War
II era, which was not able to cope with the normative challenges of asym-
metric warfare or wars of national liberation.
There is also an important tension with regard to the orientation
toward normative discourse. The West seeks a statist discourse with unre-
stricted discretion for geopolitical actors, excepting of course its rivals who
are held fully accountable by reference to the UN Charter framework.
The South, and the UN General Assembly, is generally favorable to the
claims of nationalist movements and anticolonialist struggles, especially
if directed toward liberation from European or Western control. In this
regard, this subaltern discourse is supportive of the situation of the Viet-
namese and Palestinian national liberation struggles, given concreteness in
international law by the wide consensus supporting the inalienable right
of self-determination as enshrined in Article 1 of both International Cov-
enants on Human Rights, and more broadly reaffirmed in the influential
Declaration on Principles of International Law concerning Friendly Rela-
tions and Co-operation among States in Accordance with the Charter of
the United Nations.10
NOTES
1. Indeed, the flaunting of international law was so notorious and the failure of
the UN to respond so pronounced that the celebrated British philosopher Bertrand
Russell convened a civil society tribunal composed of leading public intellectuals,
presided over by Jean-Paul Sartre, which produced a full documented set of conclu-
sions relating to US violations of the laws of war. See John Duffett, ed., Against the
Crime of Silence: Proceedings of the Russell International War Crimes Tribunal (Flanders,
NJ: O’Hare Books, 1968). See also Tor Krever’s chapter in this volume for a more
detailed discussion of the Russell Tribunal.
xviii Foreword
2. On the reasons for the US refusal to ratify the Additional Protocols, see the
chapter by Victor Kattan in this volume.
3. On the influence of the Vietnam and Arab-Israeli conflicts on the drafting
of Additional Protocol I, see the chapter by Amanda Alexander and the chapter by
Ihab Shalbak and Jessica Whyte in this volume.
4. See “Israel’s apartheid against Palestinians: Cruel system of domination and
crime against humanity,” Amnesty International, February 1, 2022; “A Threshold
Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution,” Human
Rights Watch, April 27, 2021; “A regime of Jewish supremacy from the Jordan
River to the Mediterranean Sea: This is apartheid,” B’Tselem, January 12, 2021;
Richard Falk and Virginia Tilley, “Israeli Practices towards the Palestinian People
and the Question of Apartheid,” UN Economic and Social Commission for West
Asia, 2017.
5. On the significance of international law for civil society activism and domes-
tic dissent during the Vietnam War, see the chapter by Madelaine Chiam and Brian
Cuddy in this volume.
6. See John Quigley’s chapter in this volume for a differing legal characteriza-
tion of responsibility for initiating the 1973 War. See also John B. Quigley, The
Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War
(Cambridge: Cambridge University Press, 2013).
7. On the development of “operational law” in the United States and Israel,
which appears to have been developed partly in response to the conflict conditions
in Vietnam and the Middle East as well as the new IHL rules of the 1977 Additional
Protocols, see the chapter by Craig Jones in this volume.
8. For further analysis, see Brian Cuddy’s chapter in this volume. Both the Gulf
of Tonkin and Pleiku attacks were used to justify plans to expand the combat zone
in Vietnam to the north of the country, across the boundary between North and
South.
9. General Assembly Resolution ES-11/1, March 18, 2022, A/RES/ES-11/1.
10. General Assembly Resolution 2625, October 24, 1970, A/RES/2625.
ONE
The Transformation of International

Law and War between the
Middle East and Vietnam
International Law in Relief
War, as a concept as much as a set of practices, occupies a central place in

the development of international law. But not all wars have had an equal
effect on the shape and pace of legal change. This volume is built on the
premise that any attempt to understand how the content and function
of international law changed in the second half of the twentieth century
should consider two armed conflicts, fought on opposite edges of Asia,
and the legal pathways that link them together across time and space. The
Arab-Israeli conflict (including both the wars between Israel and the Arab
states and the ongoing Israel-Palestine conflict) and the Second Indochina
War (called the American War in Vietnam, but known more commonly in
the United States and around the world as the Vietnam War) are each the
product of their own particularities, dynamics, and histories. But consid-
ered closely, and especially taken together, these two armed conflicts can
also help us to tell a story of the transformation of international law, and its
relationship to war, since 1945.
This claim of significance is contestable. The legal scholars Oona
Hathaway and Scott Shapiro agree “that the defining feature of an inter-
2 Making Endless War
national system is how it regulates armed conflict,” but they want to push
these two regional conflicts (and others like them) to the margins of our
understanding of the development of international law. For them, the great
story of international law in the twentieth century is the outlawing of war
and territorial conquest.1 A series of initiatives—centering for Hathaway
and Shapiro on the Paris Peace Pact of 1928 but culminating in the United
Nations Charter of 1945—did away with an “old world order” in which
war was legal and conquest a corollary right of war. The resulting “new
world order” turned international law on its head, and the intertwined
acts of aggressive war, territorial conquest, and annexation all became ille-
gal. This legal transformation was remarkably successful. Hathaway and
Shapiro find that “for every 100 square kilometers taken through sticky
conquests before 1929, just 6 square kilometers were thus obtained after
1948.” With their “bird’s-eye view, it is possible to see what observers on
the ground too often miss: that what was once frighteningly common is
now thankfully infrequent, because what was once seen as the embodiment
of international law is now understood as its repudiation.”2
While conquest and territorial annexation became rare after 1945, wars
did not cease. Hathaway and Shapiro therefore qualify their argument by
noting that the prohibition on acquiring territory by conquest worked
where sovereignty was clear and borders were accepted. “But if sover-
eignty is disputed and the lines hazy, the legal situation gets complicated
very quickly.” Hathaway and Shapiro attribute the residual violence of the
transformed legal order to “clumsy decolonization” resulting in “botched
handoffs” from empire to nation and “blurry lines” on the world map that
engender uncertainty and contestation over sovereignty. The outlawry of
aggressive war and territorial conquest also works paradoxically to prop
up weak states that then become, for Hathaway and Shapiro, a source of
violence. “Those weak states sometimes become failed states,” they write
(with little attention to the agency of the United States and other major
powers such as Russia in the making of weak and failed states). “And those
failed states too often become breeding grounds for internal conflict and
terrorism.” The messy wars of decolonization and the internal violence of
weak or failed states together make up what Hathaway and Shapiro label
“the dark side of the New World Order.”3
In order to make their argument, Hathaway and Shapiro push the con-
flicts in the Middle East and Indochina (and other places) to the margins of
the development of international law. They become side-stories to the main
narrative of an end to conquest and annexation. To get up close—to be “on
the ground”—with these conflicts is to distract from a full appreciation of
The Transformation of International Law and War 3
this grand transformation, suggest Hathaway and Shapiro. Acknowledging

that the acquisition of territory by Israel in 1967 and North Vietnam in
1975 were “events of great significance to those involved,” they nonethe-
less insist that to focus on these (and eight other similar cases of post-1928
conquests that stuck) “risks missing the forest for the trees, or more accu-
rately failing to see that the forest has so few trees.”4 Hathaway and Shapiro
acknowledge the incredible violence of these events but do not want it to
overshadow the bigger picture. “Without minimizing this pain and dis-
tress, the broad perspective provided by our data makes clear that these
conquests were, in historical terms, both relatively rare and comparatively
small.” To focus on the exceptions, such as with Israel-Palestine and Viet-
nam, is to miss the broader rule.5
Where attention is given to the violence of these exceptions, the finger
is pointed at botched handoffs and blurry lines. The British Mandate of
Palestine is “perhaps the most infamous example of a botched handoff,”
write Hathaway and Shapiro, noting that “at least one reason the conflict
has proven so intransigent is that the British mandate expired with no clear
plan for the territory it had governed.” Minimizing the extent to which
the United Nations Partition Plan for Palestine in UN General Assembly
Resolution 181 (II) did provide a clear—if unenforced—plan for the terri-
tory of the British Mandate, Hathaway and Shapiro declare that “Palestine
became a legal black hole, a territory in which the chain of sovereignty had
been broken.”6 They offer a similar analysis for the violence visited on the
people of Indochina after 1945. “Much the same happened in Vietnam,
where the sudden end of Japanese rule left uncertainty—and then war—
over who was the rightful sovereign after Japan relinquished control.”7 For
Hathaway and Shapiro, the wars in the Middle East and Indochina are not
productive of international legal order in any meaningful sense. They are
aberrations, to be regretted and corrected, but of little consequence for the
development of international law.
Starting from positions marginal or diagonal to that narrative, however,
allows for the possibility that international law has not developed in spite
of the conflicts in the Middle East and Indochina but because of them.8
On closer examination, the “legal black holes” (Hathaway and Shapiro’s
words) or the “crevices” of international law (Ihab Shalbak and Jessica
Whyte’s words from their chapter in this volume) are not simply unfor-
tunate byproducts of historical progress but are themselves crucial drivers
of change in the international legal order. This volume, then, examines the
development of international law in relief. It begins with the crevices, black
holes, and other recesses that make up the so-called dark side of the inter-
national legal order, allowing a different story about the transformation of

legal order in the twentieth century to emerge. Our approach recasts the
outlawry of aggressive war, as important as it is, as the background to legal
change. We instead foreground attempts to develop legal rationales for the
continued waging of war after 1945—not the total, industrialized warfare
of the sort the UN Charter signatories sought to avert, but more limited
and diffuse forms of warfare. Examining international law in relief allows
us to move beyond explaining the end of war as a legal institution and
toward understanding the attempted institutionalization of endless war.
From Total War to Endless War
The Vietnam and Middle East conflicts are not, of course, the most mar-
ginal places from which to gain a different perspective on the development
of international law since the mid-twentieth century. As major regional
conflicts they occupy a much more prominent position in the history and
practice of international law than places such as Nauru, Nagaland, and
Namibia.9 Both conflicts were—and in the case of the Israel-Palestine con-
flict, continue to be—very much in the public spotlight. They made head-
line news. They were debated passionately in the newspapers, on radio,
and in universities all over the world. Nor did these debates ignore the
legal dimensions of these two conflicts. On the contrary, both conflicts
were highly visible international law conflicts, in which all sides invoked
international rules, procedures, and institutions.
In the case of the Vietnam War, Americans both for and against US
involvement developed international law rationales to make their cases.
The US government and its supporters put significant effort into mak-
ing the argument that North Vietnam was engaged in armed aggression
against South Vietnam for the purposes of conquest, making the case in
public speeches, films, and two white papers released in 1961 and 1965.10
This official narrative of North Vietnamese aggression was challenged
by antiwar activists, clergy, scholars, and lawyers. To them, the United
States was the aggressor, violating the 1954 Geneva Accords, unjustly
intervening in a civil war, and waging war inhumanely.11 Guenter Lewy,
an early postwar scholarly voice arguing for the necessity and justness of
the American effort in Vietnam, noted that “the impact of the antiwar
movement was enhanced by the widely publicized charges of American
atrocities and lawlessness.”12 The weight of public opinion eventually fol-
lowed the antiwar movement and shifted against the American war effort.
This shift in public opinion was, in turn, a key prompt for Congress to
stop funding the war. South Vietnam—and by proxy the United States—
lost the war when Saigon fell to North Vietnamese troops in 1975. The
United States had won most of the major military battles of the war, but
losing the battle for public opinion at home mattered more in determin-
ing the war’s ultimate outcome.13
In the Middle East conflicts, too, legal arguments have been offered and
rebutted by all sides. The Israeli government and its supporters developed
international law rationales for its use of force in 1948, 1956, and 1967,
and its displacement of the Palestinian people from their homes, which
were contested by the Arab states and their Palestinian supporters.14 Isra-
el’s settlements in Palestinian territories have been widely condemned as
contrary to international law, most notably by the principal judicial organ
of the United Nations.15 Israel has invested a lot of resources into coun-
tering legal narratives articulated by international organizations and anti-
occupation activists that its annexation of East Jerusalem, the settlements,
and its prolonged occupation of the West Bank and the Gaza Strip violate
international law.16 Israel has employed public spokesmen well versed in
the law of war to vigorously challenge claims that its armed forces might
have committed war crimes in the West Bank and Gaza. Its reaction to the
Goldstone report of 2011 is a case in point.17
Despite (or perhaps because of) the vast quantity of pages devoted to
the legal aspects of the Vietnam and Middle East conflicts, there is little
sense that international law played much of a role in the initiation or con-
duct of these wars, or in ensuring just outcomes. “It is a humbling realiza-
tion of no small moment,” Richard Falk wrote of the Vietnam War in 1973,
“to acknowledge that only international lawyers have been paying atten-
tion to the international law arguments on the war.”18 The legal historian
Samuel Moyn adds that “it will be obvious to anyone who has studied or
lived through the period that none of the legal monuments in an Ameri-
can landscape roiled by the Vietnam war were terribly prominent in the
scheme of things.”19 The place of legal argument in the antiwar movement
should not be overplayed, in other words, and nor should the effect of
international law on the Middle East conflicts. The human rights attor-
ney and legal scholar Noura Erakat notes that “few conflicts have been as
defined by astute attention to law and legal controversy” as the Palestinian-
Israel conflict. “Enumerating a comprehensive list of the legal questions
surrounding this conflict could span the pages of an entire book,” she adds,
before observing that “none of these issues has been resolved by legal fiat,
even as all parties have availed themselves of the law’s moral, political, and
intellectual logic.” For all the legal arguments advanced against Israel’s
occupation of Palestinian territories, “international law has seemed futile,
if not irrelevant.”20
If law’s effect on these wars seems marginal, early assessments of the
effect of these conflicts on the development of international law were
also underwhelming. Writing five years after the fall of Saigon, Geoffrey
Best, a leading historian of the laws of war, had “nothing” to say about
the Vietnam War “because it raised few new questions of principle.” On
the Middle East, Best added only that “the amount of writing about the
Arab-Israeli conflict is by now enormous, and exceptionally controver-
sial.”21 The debates over international law in Vietnam and the Middle
East seemed to generate much heat but little light. This sense of inter-
national law’s stasis was only intensified by the Cold War. The standoff
between the United States and the Soviet Union formed the backdrop to
both conflicts and ensured that international law arguments were as often
as not advanced (and certainly perceived) as propaganda and psychologi-
cal warfare rather than genuinely held legal opinions. In the standard
telling, the Cold War stunted the development of international law after
1945, and the regional conflicts waged within the context of the Cold
War did not change that narrative.22
Several other factors also worked to obscure the ways in which the
Vietnam and Middle East conflicts transformed the relationship between
war and law. The turn to a politics of human rights in the 1970s helped
Americans draw a line under their Vietnam War experience. Human rights,
in the words of Barbara Keys, “helped Americans make sense of the new
global terrain . . . not as a means of coming to terms with the Vietnam War
but as a means of moving past it.”23 Moving past both the lawless and law-
bending aspects of the war Washington waged in Vietnam included latch-
ing on to “just war” theory, which served to pull a medieval mask over the
novelties of the 1960s and 1970s.24 After the war, too, as Anthea Roberts
notes, American international lawyers turned inwards, prioritizing Ameri-
can interests and interpretations in a way the previous generation of mul-
tilingual, often émigré, lawyers did not.25 Naz Modirzadeh argues similarly
that the “passion-filled Vietnam-era scholarship” in international law has
given way to “an aridly technical, acontextual, and ahistorical” mode of
international law scholarship in the early twenty-first century.26 Part of that
process has involved losing any sense that the Vietnam and Middle East
conflicts of the twentieth century have relevance to the armed conflicts
of today. Having always assumed that contemporary analyses of war and
law were “far more law-rich and technical” than anything previous genera-
tions of lawyers could offer—that “the forms of legal argumentation and

available legal doctrines prior to our present moment were not sophisti-
cated enough to imagine questions like the notion of extraterritorial non-
international armed conflict or the outer limits of the geographic scope of
non-international armed conflict”—Modirzadeh herself was “astonished”
to find precedents and parallels from the 1960s and 1970s that spoke
directly to twenty-first-century concerns.27
Revisiting the Vietnam and Middle East conflicts today, and fore-
grounding them in a study of the development of international law, shows
that they were not merely unfortunate exceptions to a larger narrative of
progress. Nor did the international law arguments proffered and rebut-
ted during those conflicts amount to only a fiery but ultimately vacuous,
insignificant, and unsophisticated debate. The Vietnam and Middle East
conflicts of the twentieth century were themselves productive of new
approaches to, and interpretations of, international law. As Richard Falk
notes in the foreword to this volume, the Vietnam and Middle East con-
flicts were not merely exceptions to the intended legal order of 1945 but
were also “a source of new norms of international law.” Whether or not
anyone except for international lawyers was paying attention to the legal
arguments of the 1960s and 1970s, some of those arguments nevertheless
contributed to particular interpretations of international law, which were
then advanced by certain states attempting to control the normative dis-
course for employing force in international law. This new discourse was
not so much prompted by total wars of the sort that had motivated the war-
prevention rationale of the UN Charter, as it was by smaller-scale regional
wars, including wars of national liberation, that motivated attempts to rein-
terpret the Charter and the post–World War II international legal order
more generally. This, then, is not a story about the outlawry of “total war”
but the rise and attempted legitimation of the “endless war” that character-
izes our current age.
The armed conflicts fought in the first decades of the twenty-first cen-
tury, especially those waged by the United States and its allies, seem to
many like a new form of war, in which the old lines that circumscribed,
particularized, and regulated war seem to have blurred. The persistent wars
in Afghanistan and Iraq, the use of force beyond those war zones, potently
symbolized by the remotely piloted drone, and the sense that the conduct
of hostilities now increasingly sits outside the old rules of war all form the
backdrop to renewed interest in the history of the international law of war
and peace. The perceived lack of a horizon is particularly troubling. “This
is an endless war without boundaries, no limitation on time or geography,”
suggested US senator Lindsay Graham in early 2018. “We don’t know

exactly where we’re at in the world militarily and what we’re doing.”28 At
about the same time, Samuel Moyn noted that “the literature of endless
war has crystallized into an identifiable genre.”29 Despite the ahistorical
and universalist assumptions embedded within the language of “endless”
and “everywhere” war, contemporary armed conflict and the legal logics
that argue for its legitimacy do have a history. An important element in the
emergence and contingent development of this history can be located in
the Middle East and Indochina conflicts.
The wars fought in Vietnam and the Middle East were not just physical
confrontations. They were also battles of ideas, including legal ideas. To
justify their decisions to resort to the use of military force and to use that
force in particular ways, Americans, Vietnamese, Israelis, Egyptians, Syr-
ians, Jordanians, Palestinians, their supporters in the West, and other par-
ties to these conflicts appealed widely to international laws and customs.
These appeals rested not only on settled understandings of the relevant
international law but also on legal interpretations that attempted to shift
those understandings. Those novel legal interpretations did not always
arise in each conflict independently, however, but were often the product of
migrations and mutations of legal knowledge between the two war zones.
New understandings of both legal substance (e.g., the right of self-defense,
the distinction between civilians and combatants) and legal process (e.g.,
the legal authority of the UN versus unilateral legal authority) arose out of
the conversations, comparisons, and commonalities that connected these
two conflicts.
None of this is to downplay the significant differences between the
two conflicts—especially the obvious one that whereas the Vietnam War
is history, the annexation of occupied Palestinian lands, and the blockade
of Gaza, is very much still with us. While recognizing the distinctiveness
of each of the two conflicts examined, this volume also considers them in
tandem. The migration of legal ideas between these two conflicts helped
establish legal precedents and interpretations for the justification of vio-
lence that changed the face of armed conflict, and these precedents and
interpretations matter for why and how war is waged today.
Connected Histories
The material aid postwar Vietnam provided to revolutionaries around the

world was quite meagre. Focused internally on the political and economic
development of their now-unified country, and externally on fraught rela-

tions with Cambodia and China (leading to the Third Indochina War
launched in late 1978), Vietnamese leaders had little to offer revolution-
ary groups in terms of hardware and training. The historian Lien-Hang
Nguyen notes that in the early 1980s, at the request of the Sandinista gov-
ernment of Nicaragua, Vietnam sent two dozen personnel to train Nicara-
guan soldiers in overcoming American-style counterinsurgency. But with
international attention on the presence of Vietnamese troops in Cambodia,
the Nicaraguan mission was kept a secret. “Though committed to passing
on the torch of revolution, Hanoi did not advertise its forays into foreign
terrain as the Soviets, Chinese, and Cubans had done earlier in the Cold
War,” writes Nguyen. “Even though revolutionary groups throughout the
Third World appealed to Hanoi for guidance and support during and after
the Vietnam War, Vietnam was in neither the economic nor the political
position to assist other national liberation struggles.”30
Rather than a source of material support, then, Vietnam would provide
intellectual and moral support for other such struggles around the world.
Le Duan, general secretary of the Communist Party of Vietnam and archi-
tect of North Vietnam’s strategy in the American War, described the Viet-
namese revolution as “the bridge between socialism and the revolutionary
world, the spearhead for the people’s movement as well as for national
liberation struggles in Asia, Africa, Latin America.” The Vietnamese expe-
rience served as the “model” of a successful national liberation struggle,
and Nguyen observes that “the revolutionary Third World pored over the
translated writings of Ho Chi Minh and Vo Nguyen Giap while they lis-
tened intently to the speeches of Madame Nguyen Thi Binh.”31
The Vietnamese and Palestinian liberation movements saw themselves
as connected—as partners in the same broad political and legal project.32
“The Vietnamese and Palestinian people have much in common,” Giap
told a delegation from the Palestine Liberation Organization visiting
Hanoi in 1970, “just like two people suffering from the same illness.”33 Two
historians of the Palestinian national movement, Yezid Sayigh and Paul
Chamberlin, both highlight how Palestinian liberation groups looked to
the Vietnamese model (as well as the Chinese, Algerian, and Cuban exam-
ples) in their own struggle. Different Palestinian groups diverged in how
they invoked the Vietnamese experience depending on their understand-
ing of the connection between armed struggle and social and economic
revolution. The Popular Front for the Liberation of Palestine (PFLP), led
by George Habash, “argued that the Vietnamese revolution had demon-
strated that by mobilizing the masses, studying the art of revolutionary
warfare, and building international alliances, a movement could achieve

victory over imperialism.”34 Given Israeli military power, the PFLP called
for turning the Middle East into “a second Vietnam” and the establishment
of an “Arab Hanoi” (possibly Amman or Beirut) as a base area that could
support the war effort in a way North Vietnam had done for the southern
National Liberation Front.35 Fatah, led by Yasser Arafat, was less invested
than the PFLP in the precise social theories that underlay Vietnam’s model
of people’s war, but it nonetheless still paired the Palestinian and Vietnam-
ese struggles in general terms, consciously connecting the Deir Yassin and
My Lai massacres, for example, and using the Vietnamese association “as a
way of accessing international networks of Third World radicals.”36 In his
inaugural address to the UN General Assembly in November 1974, Arafat
reminded the world that Israel had backed “South Viet Nam against the
Vietnamese revolution.”37
The links between the United States and Israel go well beyond the
sphere of ideas, of course, with Israel getting more US foreign aid (US$150
billion as of 2021) than any other country since World War II. Almost all
American aid to Israel is in the form of military assistance, with Washing-
ton currently pledged to give Israel $3.8 billion in military aid per year
until 2028.38 There is a blunt material difference in the links between the
Vietnamese and Palestinian national movements on the one hand and the
American and Israeli states on the other. Yet the heft of the aid transfers
should not obscure the important intellectual transfers that also occur.
Like the Vietnamese-Palestinian relationship, the exchange of ideas mat-
ters in the US-Israel relationship.
The Israeli soldier-politician Moshe Dayan’s 1966 visit to South Viet-
nam to observe US and South Vietnamese operations is emblematic of the
exchange of ideas in the realm of military strategy and tactics. No longer
on active service in the military, and in between stints as a cabinet minis-
ter, Dayan arranged to report on the American war effort for the Israeli
newspaper Maariv. He later wrote that “I wanted to see for myself, on the
spot, what modern war was like, how the new weaponry was handled, how
it shaped up in action, whether it could be adopted for our own use.” In
Dayan’s words, he visited Vietnam because it was “the best, and only mili-
tary ‘laboratory’ at the time.”39
This idea of America’s Vietnam War as a laboratory was widely
acknowledged well before Dayan visited the country. “Defense officials do
not like the terminology, but they readily concede that Vietnam has given
the United States armed forces a ‘laboratory for war,’” reported Jack Ray-
mond for the New York Times in May 1965. “Tactical theories are being
tried, men trained and weapons tested.”40 The development of counterin-

surgency theories and practices in Vietnam and elsewhere further ensured
that the idea of a laboratory was not confined to a conventional military
domain. Tracing the connections between foreign counterinsurgency and
domestic policing, the historian Stuart Schrader observes that Vietnam and
other Third World countries in the early and mid-1960s were a “laboratory
of professionalization” for American policing, boosting the War on Crime
back home in the United States and contributing to new forms of “racially
invidious policing and incarceration.”41 But the “laboratory” image as a link
between Vietnam and the Middle East is particularly resonant. For just as
Dayan saw America’s Vietnam War as a laboratory that might provide les-
sons for Israel, so the Israel-Palestine conflict has come to be seen as a lab-
oratory for modern military and paramilitary techniques and technologies.
As Rhys Machold observes, “the concept of the laboratory is employed
in making sense of Israel’s perceived centrality in global patterns of violence
and militarism.” It has gained increasing traction in recent times in part as a
(not always helpful) explanation “for addressing how Israel has emerged as a
major exporter of weapons, security technology and expertise”—including
back to the United States via the “Israelification” of American military and
police forces.42 But the idea of Palestine as a laboratory has deep historical
roots. Laleh Khalili has both described the “horizontal circuits” in which
“officials and foot soldiers, technologies of control, and resources travel not
only between colonies and metropoles but also between different colonies
of the same colonial power and between different colonial metropoles,”
and identified Palestine’s crucial role in these circuits—“as either a point
of origin or an intermediary node of transmission.”43 The suppression of
the Palestinian Revolt (1936–39) was a crucial temporal link in the Brit-
ish counterinsurgency knowledge chain that connected pre–World War
I campaigns in Ireland, Bengal, the North-West Frontier Province, and
South Africa to the post–World War II wars of decolonization in Malaya,
Cyprus, Kenya, and other colonies.
Khalili identifies the movement of personnel, the sharing of training
programs and doctrines, and the creation of think-tanks and other transna-
tional epistemic communities as key vectors in the transmission of knowl-
edge around the horizontal circuits. We believe that lawyers, legal doc-
trine, and other juridical concepts also deserve significant attention in the
transnational circuits that connect the Vietnam and Middle East conflicts.44
“Gaza is a laboratory in more than one sense,” observes Eyal Weizman.
“Most significantly of all, it is the thresholds that are tested and pushed:
the limits of the law, and the limits of violence that can be inflicted by a
state and be internationally tolerated.”45 But these thresholds are not solely
the result of Israel’s use of force in Gaza in the twenty-first century. The
circuits of legal knowledge that push—and resist—these new thresholds
cut across history and geography. The circuit that connects the Vietnam
and Middle East conflicts is, we believe, particularly worthy of attention.
Without minimizing the particularities of each conflict—and the chap-
ters that follow flesh out differences as well as connections—we suggest
that to consider the Vietnam and Middle East conflicts in tandem allows
for a fresh perspective on the history of international law since World War
II. Examining the circuits of state, revolutionary, and antiwar knowledge
and practice allows us to trace, for example, the diminution over time of
what Richard Falk in his foreword terms the “war-prevention rationale” of
the UN Charter. The conflicts in Indochina and the Middle East loomed
large as states and antiwar activists debated and reinterpreted the meanings
of “aggression,” “armed attack,” and “self-defense” in the legal prohibition
on the use of force in international life. The Vietnam War and Middle East
conflicts were similarly central to the renegotiation of who could fight in
wars, and how they could fight. Saigon fell in 1975, in between sessions
of the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts (1974–
1977), giving the Vietnamese Communists a powerful voice in Geneva to
advocate for the idea of “people’s war.” The legitimation given national lib-
eration movements and their fighters in the 1977 Additional Protocols to
the Geneva Conventions served as post facto vindication of the Vietnamese
struggle, a milestone in the Palestine Liberation Organization’s turn to
international law and institutions, and a prompt for the United States and
Israel to increasingly craft their own legal interpretations and innovations.
The subsequent juridification of war in the twenty-first century—more
laws, more lawyers, more legal controversies—owes much to the Vietnam
and Middle East conflicts.
Background and Volume Outline
The Vietnam War and Arab-Israeli conflicts are also connected by their
colonial origins, and especially through the violent end to formal Euro-
pean imperialism in Indochina and the Middle East in the middle of the
twentieth century. France secured colonial control of Vietnam in the late
nineteenth century, but during World War II the Vichy-aligned colonial
regime lacked sufficient armed forces to preserve its dominance and so it
allowed Japanese troops into the country—an occupying force in all but
name. In 1941, Vietnamese nationalists formed the Revolutionary League
for the Independence of Vietnam, known as the Viet Minh, to contest both
French formal and Japanese informal rule. Their campaign intensified after
Japan overthrew the colonial French government in March 1945, and when
Japan surrendered in August the Viet Minh moved to take power. On Sep-
tember 2, 1945, Ho Chi Minh proclaimed Vietnamese independence. Post-
war France insisted on its right to return to power in Indochina, however,
and with the help of British occupation forces regained control of southern
Vietnam. Negotiations between France and the Viet Minh broke down in
late 1946, and the First Indochina War commenced, lasting until 1954.
After initially supporting the Viet Minh against the Japanese, the United
States increasingly put its weight behind the French effort to reestablish
its empire in Indochina. The ascension of Harry Truman to the presidency,
and the onset of the Cold War, led to greater suspicion of the Viet Minh’s
communist core, and to more support for France, especially from 1949.
The newly proclaimed People’s Republic of China threw its support to the
Viet Minh around the same time. Despite significant amounts of Ameri-
can aid, France’s military and political position in Vietnam deteriorated.
Defeated in battle at Dien Bien Phu in May 1954, France relinquished its
rule in Indochina as part of the July 1954 Geneva Accords. The Accords
temporarily divided Vietnam in two to allow for the regrouping of mili-
tary forces. But the unification elections planned for 1956 never happened,
and two Vietnamese regimes emerged, each styled as a state—the Demo-
cratic Republic of Vietnam in the north and the Republic of Vietnam in
the south.46
The administration of US president Dwight Eisenhower backed the
anticommunist nationalist Ngo Dinh Diem in South Vietnam, pouring
money into his nation-building efforts. Hanoi’s leadership initially focused
on its own nation-building efforts in the north, too, but from the late
1950s increasingly turned to bringing about unification through support
to southern revolutionaries. Hanoi prompted the formation of the south-
ern National Liberation Front (NLF), often referred to as the Viet Cong,
in December 1960 and the insurgency against the Diem regime intensi-
fied.47 Increased support from the new administration of John F. Kennedy
bolstered Diem for a time, but domestic opposition and loss of American
faith eventually led to Diem’s overthrow. A string of shaky successor gov-
ernments in Saigon saw Kennedy’s successor, Lyndon Johnson, continue
to increase aid to South Vietnam, culminating in 1965 with the decision to
fight the war with American military might directly.
The colonial origins of the Middle East conflicts are similarly complex.
The region known as the Middle East (or the Levant or West Asia) was
partitioned into mandates after World War I and divided between the Brit-
ish and French Empires. France secured control of Syria and Lebanon,
while Britain took Palestine, Transjordan, and Mesopotamia (Iraq). Native
opposition to British and French rule led to serious uprisings in all these
places, which were brutally crushed. Iraq remained a client state of Great
Britain even after it was admitted to the League of Nations in 1932, as did
Egypt, which joined in 1937. Egypt had been colonized by British forces
since the late nineteenth century when British and Indian troops were sent
to Egypt and Sudan to put down a revolt that threatened the empire’s com-
mercial and strategic interests. During World War II, the French govern-
ment recognized the independence of Syria and Lebanon, and Britain pro-
gressively transferred power to the Emir of Transjordan until Jordan was
recognized as an independent state in 1946.
In Palestine, the political situation was more complex due to Brit-
ish support for the establishment of a Jewish national home, which was
opposed by Palestine’s indigenous community, the majority of whom com-
prised Arabic-speaking Muslims and Christians of various denominations
and sects. The Jewish community in 1917 formed less than 10 percent of
the population, but the League of Nations supported their emigration
from Europe to Palestine, which was to alter the demographic balance of
the country considerably. Palestine’s Arab community feared they would
lose the economic and political privileges they had enjoyed as Ottoman
citizens and opposed British rule and Jewish immigration, often violently.
Between 1936 and 1939, a major Arab uprising in Palestine was crushed
by British troops and the leaders of the Arab community’s political parties
were either killed or sent into exile. In 1947, following a revolt by Pales-
tine’s Jewish community, which now formed one-third of the population
of the country, Britain announced that it would leave Palestine. The UN
adopted General Assembly resolution 181 (II) that envisaged a transfer
of power from the British authorities to a commission that would super-
vise the establishment of Arab and Jewish states in Palestine with a special
international regime established for the City of Jerusalem, but the plan
was never enforced as originally envisaged due to the outbreak of the First
Arab-Israeli War of 1948. During the war, two-thirds of Palestine’s Arab
population were evicted or fled from their homes, and the armies of Egypt,
Transjordan, and Iraq occupied sections of the country that had been allot-
ted to the Arab state in resolution 181 (II), except for the City of Jerusalem
that was divided between Jewish forces and the Jordanian Arab Legion.
The First Arab-Israeli War concluded with several armistice agree-

ments between Israel and the Arab states, signed between February and
July of 1949. The demarcation line (the “Green Line” or pre-1967 bor-
ders) established by the armistice agreements allowed for the cessation
of major hostilities but also set the scene for seven years of low-intensity
conflict as Arabs, principally Palestinian refugees with economic, social,
and emotional motivations to return to the lands they had been expelled
or fled from in 1948, sought to cross the new lines. Infiltration across the
new boundaries from the Arab states (especially Jordan and, from 1954,
Egypt) into Israeli territory and Israel’s responses—particularly its reprisal
operations—were the major sources of friction in the years from the armi-
stice agreements to the Second Arab-Israeli War (or Suez Crisis) of 1956.
In chapter 2, Brian Cuddy traces both the evolution of Israel’s repri-
sal policy in the years 1949–1956 and the concurrent emergence of a key
Israeli justification for its reprisal operations: the idea that a string of
small-scale provocations justifies a single, more significant strike in return.
The United States government not only condemned Israeli reprisals but
also rejected this argument, now often referred to as the “accumulation of
events” doctrine, when it was advanced by Israel in the 1950s. A decade
later, however, Washington’s attitude shifted. After some internal debate,
the administration maintained its formal opposition to reprisals, but State
Department lawyers nonetheless reproduced elements of Israel’s “accumu-
lation of events” doctrine in the official US justification for bombing North
Vietnam. Government lawyers integrated the argument more fully into a
justification based on self-defense and, later, made clear that the doctrine
allowed for anticipatory self-defense rather than retaliatory punishment.
Like Israel, then, albeit by a somewhat different legal route, the United
States challenged the conventional understanding of an “armed attack” in
international law, borrowing (although not acknowledging) for Southeast
Asia what it had once rejected in the Middle East.
In chapter 3, Madelaine Chiam and Brian Cuddy turn from the internal
US government debates over the legal justification for bombing North
Vietnam to the public reception of, and reaction to, the justifications
offered by the United States. In March 1965, the State Department issued
a memorandum laying out the legal case for its actions against North Viet-
nam, sparking debate within the American legal profession over the lawful-
ness of Washington’s war in Southeast Asia. The participants in the debate,
first generalist lawyers then specialist international lawyers, mobilized
their legal expertise and the American ideological commitment to the rule
of law to argue both for and against the legality of US actions. This elite-
level debate over law received less attention from 1967 as a larger, more
activist antiwar movement—with its own, more popular, understanding of
international law—came to dominate the American conversation regard-
ing the war. But the debate nonetheless gained enough public and political
traction to have a significant impact on the way the US government and
American legal profession subsequently engaged with questions of law and
war. The participants took different lessons from the debate and moved
along different pathways from 1967—some toward more solidarity with
activist and anticolonial interpretations of international law, others toward
improving the establishment’s facility with incorporating law into national
security policymaking—but the debate remains an important moment in
the development of American international law.
The year 1967 was a critical time in America’s Vietnam War. It saw
renewed commitment to General Westmoreland’s pacification strategy—
what he called “the other war”—but also represented the height of the
big unit war, which involved search and destroy operations in rough ter-
rain along the Demilitarized Zone and in the jungles of the highlands.
According to American statistics, in 1967 alone, US troops killed 25,564
Vietnamese communist guerrilla fighters. American scorch earthed tactics
also produced huge refugee flows, with the number of internally displaced
Vietnamese reaching one million by the end of 1967. American military
strategy also soaked up precious American combat manpower by exacting a
heavy price in American lives. During the first half of 1967, American casu-
alties reached an average of 816 killed in action per month, compared with
a monthly average of 477 in 1966.48 Opposition to America’s war increased
at home and abroad, which together with the war’s drain on American
resources made 1967 a key inflection point in America’s global position.49
That same year, 1967, was also a key turning point in the Middle East,
with the Six-Day War, also known as the June 1967 War, marking a num-
ber of new features in regional politics: the beginning of Israel’s occupa-
tion of East Jerusalem, the West Bank, the Gaza Strip, the Golan Heights,
and the Sinai Peninsula; a revived Palestinian national movement called
the Palestine Liberation Organization (PLO), which sought to liberate all
parts of the country by commando action; and Washington’s more direct
diplomatic, military, and legal support for Israel.
In chapter 4, John Quigley provides an assessment of the legality of
military action by Egypt and Syria in October 1973. Reversing its usual
argument for expanding the temporal frame of reference upon which to
judge the use of force, in October 1973 Israel argued the narrow point that
Egypt and Syria were aggressors because they initiated hostilities. Egypt
and Syria did indeed strike first on October 6, but in attacking into their
own territory in the Sinai Peninsula and the Golan Heights they were tak-
ing a course of action that had been legally available to them since the
occupation of those territories by Israel in 1967 and in the face of UN
Security Council inaction. As with its war in Vietnam, the United States
was able to use its position as a veto-wielding member of the Security
Council to steer discussion away from questions of legality from 1967
through 1973. But this support for Israel in the face of international senti-
ment that favored the territorial rights of the Arab states only added to
the increasingly unfavorable international political context that faced the
United States as a result of its war in Southeast Asia and the changed com-
position of the United Nations. Even though Washington withdrew com-
bat troops from South Vietnam six months prior to the October 1973 war,
it continued to be challenged over its wartime practices, most notably at a
series of diplomatic conferences that renegotiated the laws of war between
1974 and 1977.
In chapter 5, Amanda Alexander shifts the frame of legal analysis from
the use of force to the conduct of hostilities. The 1977 Additional Proto-
cols to the 1949 Geneva Conventions established the principle of distinc-
tion between civilians and combatants and the protection of civilians as
perhaps the central precepts of international humanitarian law. But the
easy acceptance of those precepts today masks how their particular features
emerged as flawed compromises from the 1974–1977 negotiations. The
United States and the Vietnamese communists (both the government of
North Vietnam and the National Liberation Front in South Vietnam) took
different legal and spatial understandings of armed conflict into the Sec-
ond Indochina War. Those differences between Western conventional war
and revolutionary war played out both on the battlefields of Vietnam and
around the conference tables of Geneva. Diplomatically outnumbered in
Geneva, the United States and its Western allies were forced to accept the
proposition that wars of national liberation—wars fought to free a country
from imperial control—were legitimate international conflicts, and that
guerrilla fighters could be legitimate combatants. The guerrilla fighter
question put the principle of distinction front and center at the conference,
with long and complex debates eventually leading to a compromise: com-
batants only needed to distinguish themselves from the civilian population
during a military engagement and the preceding deployment. Thus the
principle of distinction was enshrined in law only by accepting the lack of
any absolute difference between combatant and civilian.
In chapter 6, Ihab Shalbak and Jessica Whyte continue to examine
the question of the relation between irregular fighters and the civilian
population, but from a Palestinian perspective. As one of the few national
liberation movements that had not achieved statehood by the time the
Additional Protocols were finalized, the stakes of the debate were cru-
cial for the Palestinians, touching as they did on the existential question
of who constituted a people. In the years between the 1967 War and the
Diplomatic Conference, armed struggle played a central role in the self-
constitution of a Palestinian identity. The essential unity of civilian and
combatant—fighter and farmer—was the foundation upon which the Pal-
estinian national movement reconstituted the Palestinian people, with a
right to self-determination and a right to return to their land. The cause of
combatant status for irregular fighters, then, was central to the Palestinian
participation in the negotiations for the Additional Protocols. The Pales-
tinian delegation stressed that giving status to irregular fighters was actu-
ally a means of protecting civilians, given the harm inflicted on civilians by
counterinsurgency campaigns and pacification. Winning recognition for
guerrilla fighters and protections for civilians, however, came at the cost of
operating within the strictures of international law—of substituting state-
building for nation-building.
What did not change as a result of concluding the Additional Proto-
cols was Israel’s continued treatment of the civilian population of Palestine
with suspicion, irrespective of its newly defined and protected status within
international law. But diplomatic and political relations between Israel, the
Arab states, and the PLO did undergo some significant changes from the
late 1970s. In 1982, Israel completed its withdrawal from the Sinai Pen-
insula after concluding a peace treaty with Egypt, although the PLO was
less successful in its attempt to liberate Palestine by armed struggle, and its
leadership was exiled to Tunisia during Israel’s 1982 siege of Beirut. From
Tunis, the PLO embarked on discussions with peace activists close to Isra-
el’s Labor Party, and in 1993, following the formation of a government led
by Labor after the 1992 general election, the PLO recognized the State of
Israel, and in exchange Israel allowed the PLO’s leadership to return from
exile and govern the West Bank and the Gaza Strip.
In chapter 7, Victor Kattan returns the focus to the United States, revis-
iting critiques of the laws of war among lawyers serving in the US govern-
ment following the fall of Saigon in 1975 that viewed the emergence of
a Third World bloc in the UN as a problem. A marriage of convenience
was also taking place between the United States and Israel, whose inter-
ests became increasingly entwined in the 1970s as they saw themselves as
liberal democracies fighting insurgents that hid amidst civilian popula-
tions only to invoke the law of war to their advantage. Disconcerted by

the “Third Worldism” of the Carter administration, the interests of neo-
conservatives with close links to members of the Israeli government and
Vietnam War veterans became aligned after the drafting of the Additional
Protocols to the 1949 Geneva Conventions. Bitterness over the loss of the
Vietnam War, the success of national liberation struggles in influencing
the drafting of Additional Protocol I, and a spate of high-profile terror-
ist attacks against US citizens between 1983 and 1985, persuaded Ronald
Reagan to refuse to send the treaty to the Senate for advice and consent
for ratification. For the Reagan administration, certain provisions of API
were considered too constraining on US power in the global confronta-
tion with the Soviet Union and too accommodating to the interests of the
national liberation movements that were supported by the Soviet Union in
undermining US interests in the Third World. To win the Cold War, the
United States wanted to go on the offensive and in order to accomplish this
objective international law needed to be interpreted flexibly.
In chapter 8, Craig Jones looks at the mechanics of how this flexible
interpretation of the laws of war came about in practice. As a result of the
Vietnam War, and in an attempt to overcome the negativity toward the
laws of war felt by many US commanders who had fought in Vietnam, the
United States invented and developed a new military-legal discipline called
“operational law.” A mix of domestic and international law, operational law
was designed to give military commanders the tools they needed for “mis-
sion success.” US military lawyers first consciously used the approach in
Panama (1989) and the First Gulf War (1990–91), and it was then picked up
and developed by the Israeli military during the Second Intifada beginning
in September 2000. Applying the idea of operational law has allowed the
United States and Israeli militaries to domesticate international law, which
combined with the creative interpretive legal work of military lawyers has
seen the expansion of the scope and space of a permissible target and other
controversial policies that push at the boundaries of international law.
In chapter 9, Tor Krever looks not at how international law has been
used to advance American and Israeli policies and practices in Vietnam and
Palestine but at how it has been used to contest and condemn those poli-
cies and practices. In both the Vietnamese and Palestinian struggles, law
has been used as a tool of resistance. A prominent form of such resistance
has been peoples’ tribunals—bodies set up by private citizens but modeled
on legal courts for the purpose of judging and condemning state behavior
with reference to law. The British philosopher Bertrand Russell was the
inspiration behind two sessions of the International War Crimes Tribunal
that heard testimony and issued verdicts against US actions in Vietnam

in 1967. Subsequent “Russell Tribunals” have periodically been conducted
since, including the Russell Tribunal on Palestine, which held six sessions
between 2010 and 2014. All peoples’ tribunals navigate a tension between
legal form and political purpose, but the way they do so has changed over
time. The Vietnam War tribunal attempted to mobilize international law
tactically in service to a broader practice of resistance against imperialism.
Four decades later, the Palestine tribunal had a greater tendency to invoke
international law, and compliance with the law, not just tactically but as
an end in itself. Just as legalism has become more prominent in American
and Israeli military practices since the Vietnam War, then, so too has it
become more prominent in opposition to those practices. With its poten-
tial to obscure larger political goals, this juridification of resistance has not
come without cost.
In chapter 10, we close the volume with a chapter on how the wars in
Vietnam and the Middle East shaped the rationalization for various uses of
armed force by the United States and Israel between the Cold War and the
“War on Terror.” We suggest that America’s culture wars and the impact
of English-language media, cinema, and other forms of popular culture
have had an oversized impact on the language of war. This is supported
by the quantity of literature devoted to these two conflicts in specialized
international law journals as well as official government publications. We
trace the roots of the special relationship between the United States and
Israel to their common enemies, and the two wars fought against inter-
national terrorism, declared by the Reagan administration after the 1983
Beirut bombings, and then following 9/11 by the Bush administration.
Resistance to these rationalizations for the permissive use of force by the
American and Israeli governments, together with criticism from the schol-
arly community, led to the establishment of smaller groups of like-minded
ideologically committed lawyers associated with Tel Aviv and Washington
who embarked on a process of “reform.” This reform process involved per-
suading the governments of powerful states in North America, Europe,
and Australasia to revise the prohibition on the use of force in Article
2(4) of the UN Charter to enable military action against novel types of
threats, especially those emanating from ungoverned spaces. The permis-
sive interpretations of international law held by these like-minded lawyers
were shaped by their common threat perceptions, which in turn had been
largely shaped by the conflicts in Vietnam and the Middle East. A con-
sequence of these rationalizations has been the legitimization of endless
wars and the novel technologies that sustain them. Even if these lawyers
have not been as successful in advancing their new interpretations of the

law beyond the Anglosphere, scholars should nevertheless remain vigilant
about the sources and origins of these arguments because they risk further
estranging the international community, by which we mean all members of
the United Nations and not just “the West” or a “concert of democracies,”
from the UN Charter’s war-prevention rationale.
The Vietnam and Middle East conflicts were fundamental to the devel-
opment of our current international legal order. They shaped both promi-
nent public lawmaking moments, especially the Diplomatic Conference
leading to the Additional Protocols in 1977, and also the slower behind-
the-scenes accretion of interpretation and practice, the significance of
which was often difficult to discern at the time and is only readily apparent
in historical perspective. Bringing such a perspective to the study of the
Vietnam and Middle East conflicts, and studying these two regional con-
flicts in tandem, allows this volume to provide the beginnings of a frame-
work for better appreciating the development of international law and war
since 1945. The changes wrought to the international legal order and to
the character of war during, and as a result of, the Vietnam and Middle East
conflicts were important and enduring.
NOTES
1. Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical

Plan to Outlaw War Remade the World (New York: Simon and Schuster, 2017), xix.
2. Hathaway and Shapiro, The Internationalists, 321, 329. “Sticky” conquests are
those that have not been reversed by later events. Historians who are sympathetic
to Hathaway and Shapiro’s argument still question the suddenness of the shift they
describe, and they suggest that ideas about the outlawry of war have a longer and
more complex history than Hathaway and Shapiro acknowledge. Isabel Hull, for
example, questions Hathaway and Shapiro’s portrayal of the Paris Peace Pact as
“almost magical in its transformative capacities,” preferring instead to see a “long
and uneven history of legal change” going back to the seventeenth century. Isabel
V. Hull, “Anything Can Be Rescinded,” review of The Internationalists: How a Radical
Plan to Outlaw War Remade the World, by Oona Hathaway and Scott Shapiro, London
Review of Books 40, no. 8 (April 26, 2018); see also Sharon Korman, The Right of Con-
quest: The Acquisition of Territory by Force in International Law and Practice (Oxford:
Clarendon Press, 1996). These ideas have a more diverse history, too, including
not just Hathaway and Shapiro’s four “internationalists”—all men, all European or
American—but extending the cast of characters much wider to socialists, feminists,
conservatives, and other groups who articulated an internationalist vision.
3. Hathaway and Shapiro, The Internationalists, 353, 355, 368, 365.
4. Hathaway and Shapiro also gloss over the acquisition of territory in 1948
by Israel in areas allotted to the Arab State in the UN Partition Plan following the
adoption of General Assembly Resolution 181 (II) on November 29, 1947, which
purported to establish two states in Palestine.
5. Hathaway and Shapiro, The Internationalists, 328, 329.
6. Hathaway and Shapiro, The Internationalists, 355–57.
7. Hathaway and Shapiro, The Internationalists, 357.
8. Mary Beth Norton, “History on the Diagonal,” American Historical Review
124, no. 1 (February 2019): 1–19.
9. Cait Storr, International Status in the Shadow of Empire: Nauru and the His-
tories of International Law (Cambridge: Cambridge University Press, 2020); Lydia
Walker, “Decolonization in the 1960s: On Legitimate and Illegitimate Nationalist
Claims-Making,” Past and Present 242 (February 2019): 227–64. Storr begins her
work on Nauru from the premise “that the international order one perceives is
radically determined by the place in which one stands” (8) and rejects “any pre-
sumption of Nauru as anomaly” (10). Walker’s comparison of Naga and Namib-
ian nationalist claims-making excavates “a layer of international relations, usually
unseen” that “worked within the UN’s fissures” (228).
10. See, for example, Lyndon B. Johnson, Address at Johns Hopkins Univer-
sity: “Peace Without Conquest,” April 7, 1965, reprinted in The American Presi-
dency Project by Gerhard Peters and John T. Woolley, https://www.presidency.ucsb
.edu/node/241950; Department of Defense, “Why Vietnam?” documentary film,
1965, https://archive.org/details/gov.archives.arc.2569861; Department of State,
“A Threat to the Peace: North Viet-Nam’s Effort to Conquer South Viet-Nam,”
December 1961; Department of State, “Aggression from the North: The Record
of North Viet-Nam’s Campaign to Conquer South Viet-Nam,” February 1965;
Roger H. Hull and John C. Novogrod, Law and Vietnam (Dobbs Ferry, NY: Oceana
Publications, 1968); John Norton Moore, Law and the Indo-China War (Princeton:
Princeton University Press, 1972).
11. See, for example, Consultative Council of the Lawyers Committee on
American Policy Towards Vietnam, Vietnam and International Law: The Illegality
of United States Military Involvement, rapporteur John H. E. Fried (Flanders, NJ:
O’Hare Books, 1967); Clergy and Laymen Concerned About Vietnam, In the Name
of America: The conduct of the war in Vietnam by the armed forces of the United States as
shown by public reports compared with the Laws of War binding on the United States Gov-
ernment and on its citizens, director of research Seymour Melman (Annandale, VA:
The Turnpike Press, 1968); John Duffett, ed., Against the Crime of Silence: Proceed-
ings of the Russell International War Crimes Tribunal (Flanders, NJ: O’Hare Books,
1968); Richard A. Falk, Gabriel Kolko, and Robert Jay Lifton, eds., Crimes of War: A
legal, political-documentary, and psychological inquiry into the responsibility of leaders, citi-
zens, and soldiers for criminal acts in wars (New York: Vintage Books, 1971); Richard
A. Falk, ed., The Vietnam War and International Law, 4 vols. (Princeton: Princeton
University Press, 1968–1976). The latter series included a variety of viewpoints on
the conflict but overall tended to favor antiwar perspectives.
12. Guenter Lewy, America in Vietnam (New York: Oxford University Press,
1978), 434.
13. There are still scholars who argue that the United States could have won
the Vietnam War had Congress, responding to public opinion, not cut funds for
the war. For an overview of this literature, see Gary R. Hess, Vietnam: Explaining
America’s Lost War (Malden, MA: Blackwell, 2009), 179–206.
14. See, for example, Colloquium of Arab Jurists, The Palestine Question: Seminar
of Arab Jurists on Palestine, Algiers, 22–27 July, 1967 (Beirut: Institute for Palestine
Studies, 1968); Nathan Feinberg, The Arab-Israel Conflict in International Law: A
Critical Analysis of the Colloquium of Arab Jurists in Algiers (Jerusalem: The Magnes
Press, 1970); Faris Yahya, The Palestine Question and International Law (Beirut: PLO
Research Center, 1970); Henry Cattan, Palestine and International Law: The Legal
Aspects of the Arab-Israeli Conflict (London: Longmans, 1973); Nathan Feinberg,
Studies in International Law, with Special Reference to the Arab-Israeli Conflict (Jeru-
salem: The Magnes Press, 1979); W. Thomas Mallison and Sally V. Mallison, An
International Law Analysis of Major United Nations Resolutions Concerning the Palestine
Question (New York: United Nations, 1979); Julius Stone, Israel and Palestine: Assault
on the Law of Nations (Baltimore: Johns Hopkins University Press, 1981).
15. Legal Consequences of the Construction of a Wall in the Occupied Pales-
tinian Territory, Advisory Opinion, ICJ Reports 2004, 136 at 184, para 120.
16. On the settlements, see, for example, the writings of Eugene Rostow (also a
prominent figure in the Vietnam War), which continue to be cited in contemporary
polemics: Eugene Rostow, “‘Palestinian self-determination’: Possible Futures for
the Unallocated Territories of the Palestine Mandate,” Yale Studies in World Public
Order 5 (1978–1979): 147–72; Douglas Feith and Eugene Rostow, Israel’s Legitimacy
in Law and History: Proceedings of the Conference on International Law and the Arab-
Israeli Conflict (New York: Center for Near East Policy Research, 1993). Another
figure who wrote prolifically on the Vietnam War was John Norton Moore. His
four-volume tome on the Arab-Israeli conflict remains essential reading: John Nor-
ton Moore, ed., The Arab-Israeli Conflict, 4 vols. (Princeton: Princeton University
Press, 1973). See also, M. Cherif Bassiouni and Shlomo Ben Ami, eds., A Guide
to Documents on the Arab-Palestinian/Israeli Conflict, 1897–2008 (Leiden: Martinus
Nijhoff, 2009).
17. See Human Rights in Palestine and Other Occupied Arab Territories:
Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN
Doc. A/HRC/12/48, September 25, 2009. For reactions see the documents listed
on the website of Israel’s Ministry of Foreign Affairs: https://www.gov.il/en/Dep
artments/General/goldstone-fact-finding-report-a-challenge-to-democracies-fig
hting-terror. See also Adam Horowitz, Lizzy Ratner, and Philip Weiss, eds., The
Goldstone Report: The Legacy of the Landmark Investigation of the Gaza Conflict (New
York: Nation Books, 2011).
18. Richard A. Falk, review of Fire in the Lake: The Vietnamese and the Americans
in Vietnam by Frances Fitzgerald, Texas Law Review 51, no. 3 (March 1973): 618.
19. Samuel Moyn, “From Antiwar Politics to Antitorture Politics,” in Law and
War, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Stanford:
Stanford University Press, 2014), 155.
20. Noura Erakat, Justice for Some: Law and the Question of Palestine (Stanford:
Stanford University Press, 2019), 3, 2.
21. Geoffrey Best, Humanity in Warfare (New York: Columbia University Press,
1980), 371n44, 371n46.
22. For another recent challenge to this narrative, see Matthew Craven, Sund-
hya Pahuja, and Gerry Simpson, “Reading and Unreading a Historiography of Hia-
tus,” in International Law and the Cold War, ed. Matthew Craven, Sundhya Pahuja,
and Gerry Simpson (Cambridge: Cambridge University Press, 2020).
23. Barbara J. Keys, Reclaiming American Virtue: The Human Rights Revolution
of the 1970s (Cambridge, MA: Harvard University Press, 2014), 3. See also Samuel
Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: The Belknap
Press of Harvard University Press, 2010), esp. chap. 5, “International Law and
Human Rights.”
24. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical
Illustrations (New York: Basic Books, 1977). See also Jessica Whyte, “The ‘Danger-
ous Concept of the Just War’: Decolonization, Wars of National Liberation, and
the Additional Protocols to the Geneva Conventions,” Humanity 9, no. 3 (Winter
2018): 313–41.
25. Anthea Roberts, Is International Law International? (New York: Oxford Uni-
versity Press, 2017), 50, 104–5.
26. Naz K. Modirzadeh, “Cut These Words: Passion and International Law of
War Scholarship,” Harvard International Law Journal 61, no. 1 (Winter 2020): 1.
27. Modirzadeh, “Cut These Words,” 5–6.
28. Cited in Rukmini Callimachi, Helene Cooper, Eric Schmitt, Alan Blinder,
and Thomas Gibbons-Neff, “‘An Endless War’: Why 4 U.S. Soldiers Died in a
Remote African Desert,” New York Times, February 20, 2018, https://www.nytimes
.com/interactive/2018/02/17/world/africa/niger-ambush-american-soldiers.html
29. Samuel Moyn, “American Peace in an Age of Endless War,” Raritan 37, no. 3
(Winter 2018): 153.
30. Lien-Hang T. Nguyen, “The Vietnam Decade: The Global Shock of the
War,” in The Shock of the Global: The 1970s in Perspective, ed. Niall Ferguson, Charles
S. Maier, Erez Manela, and Daniel J. Sargent (Cambridge, MA: Belknap Press of
Harvard University Press, 2010), 168.
31. Nguyen, “The Vietnam Decade,” 169.
32. Evyn Lê Espiritu, “Cold War Entanglements, Third World Solidarities:
Vietnam and Palestine, 1967–1975,” Canadian Review of American Studies 48, no. 3
(2018): 352–86.
33. Cited in Paul Chamberlin, The Global Offensive: The United States, the Pales-
tine Liberation Organization, and the Making of the Post-Cold War Order (New York:
Oxford University Press, 2012), 1.
34. Chamberlin, The Global Offensive, 26. Habash was a key figure in the estab-
lishment of both the Arab Nationalist Movement in 1953 and the PFLP in 1967.
35. Yezid Sayigh, Armed Struggle and the Search for State: The Palestinian National
Movement, 1949–1993 (Oxford: Oxford University Press, 1999), 200; Chamberlin,
The Global Offensive, 26.
36. Sayigh, Armed Struggle and the Search for State, 196–202; Chamberlin, The
Global Offensive, 27.
37. Agenda item 108, Question of Palestine, United Nations General Assembly,
29th Session, Official Records, UN Doc. A/PV.2282 and Corr. 1, November 13,
1974, para. 41.
38. Jeremy M. Sharp, “U.S. Foreign Aid to Israel,” Congressional Research Ser-
vice Report RL33222, February 18, 2022.
39. Marc Leepson, “Moshe Dayan Sounds the Alarm in Vietnam,” https://www
.historynet.com/moshe-dayan-sounds-the-alarm-in-vietnam-3.htm. While Dayan
came away impressed with American firepower and personnel, he expressed con-
cern at both the search-and-destroy and hearts-and-minds strategies of US forces,

writing that “the Americans are winning everything—except the war.”
40. Jack Raymond, “Vietnam Gives U.S. ‘War Laboratory,’” New York Times,
May 3, 1965, 12. Explaining the Pentagon’s aversion to laboratory terminology,
Raymond added that “officials hesitate to discuss Vietnam as a military proving
ground because they fear it might be taken out of context—the Spanish Civil War
30 years ago was regarded by military experts as the Nazis’ laboratory for World
War II.”
41. Stuart Schrader, Badges Without Borders: How Global Counterinsurgency Trans-
formed American Policing (Oakland: University of California Press, 2019), 11, 2.
42. Rhys Machold, “Reconsidering the Laboratory Thesis: Palestine/Israel and
the Geopolitics of Representation,” Political Geography 65 (2018): 89, 88, 90.
43. Laleh Khalili, “The Location of Palestine in Global Counterinsurgencies,”
International Journal of Middle East Studies 42 (2010): 413–14.
44. Khalili does note the important historical continuity in the laws and regula-
tions operating in Palestinian lands before and after 1948, which helps to account
for “the striking isomorphism of British techniques of suppression during the Arab
Revolt and the Israeli methods of population control since 1948 and especially in
the last two decades.” But she treats this as something of an exceptional feature
of the Palestinian context, stating that “it is one of the very few loci—if not the
only site—of asymmetric warfare where one counterinsurgent force has explicitly
inherited and adapted not only the practices and doctrines of its preceding coun-
terinsurgent army but also its laws and regulations.” Khalili, “The Location of Pal-
estine in Global Counterinsurgencies,” 427. Different conclusions can be reached
if international law is taken into account.
45. Eyal Weizman, The Least of All Possible Evils: Humanitarian Violence from
Arendt to Gaza (London: Verso, 2011), 96. See also Machold, “Reconsidering the
Laboratory Thesis,” 90.
46. Whether or not North and South Vietnam were actually states was a ques-
tion that aroused considerable legal controversy. Neither regime was admitted to
the United Nations as a member state during the war—only in 1977 was Vietnam
admitted as a single, unitary state. The United States argued, however, that South
Vietnam had achieved de facto if not de jure statehood, and while it did not bestow
diplomatic recognition on Hanoi it implicitly acknowledged North Vietnam’s inde-
pendence, too. Hanoi did not recognize the legitimacy of the Saigon regime’s rule
in the south.
47. For a discussion of the history and politics of naming the NLF, see Brett
Reilly, “The True Origin of the Term ‘Viet Cong,’” The Diplomat, January 31, 2018,
https://thediplomat.com/2018/01/the-true-origin-of-the-term-viet-cong/
48. Lewy, America in Vietnam, 65, 73.
49. See, for example, Mark Atwood Lawrence, “America’s Case of ‘Tonkin
Gulfitis,’” New York Times, March 7, 2017, https://www.nytimes.com/2017/03/07
/opinion/americas-case-of-tonkin-gulfitis.html
TWO
From Retaliation to Anticipation

Reconciling Reprisals and Self-Defense
in the Middle East and Vietnam, 1949–65
Brian Cuddy
Beginning in December 2019, for several months the United States, Iran,
and an Iranian-backed militia, Kataib Hezbollah, embarked on a cycle of
tit-for-tat military violence within Iraq. The initial militia attack killed an
American civilian contractor, resulting in the United States striking five
bases held by Kataib Hezbollah, which in turn prompted a group of pro-
testers to storm the US embassy in Baghdad. An American airstrike in early
January 2020 that killed Qassim Suleimani, the leader of Iran’s Quds force,
was followed several weeks later by an Iranian missile attack on bases in
Iraq that housed US forces. In March, after a Kataib Hezbollah-attributed
rocket attack killed one British and two American soldiers, the United
States hit five militia targets. A Department of Defense official described
the latter raid as “specifically designed to be punishing and retaliatory.”1
In contrast, the Pentagon’s top lawyer insisted that the motivation for the
Suleimani attack was defensive, not punitive. Subjected to “an escalating
series of armed attacks by Iran and Iran-supported militias,” the United
States used both classified intelligence and more general knowledge of “the
larger context of continuing armed attacks by Iran” to assess that further
attacks on US forces and interests were “likely to continue in the absence
of a military response in self-defense to restore deterrence.”2 The rationale
for American action swung from retaliation to anticipation.
26
From Retaliation to Anticipation 27
The use of varying language to describe the aim of American airstrikes

was not unique to the Trump administration, with the same mixed mes-
sages being delivered by the Biden administration after it initiated similar
airstrikes in February and June of 2021.3 After the February strikes, the
Pentagon press secretary told reporters that “the American retaliation was
meant to punish the perpetrators” of a prior rocket attack.4 After the June
strikes, however, the same press secretary used more considered language,
justifying the “defensive precision airstrikes” as a means to “disrupt and
deter” an “ongoing series of attacks.”5 The US government’s rhetoric of
retaliation and its legal argument of anticipation—recognizing a pattern of
armed attacks, expecting future attacks in the pattern, and initiating the use
of military force in self-defense to forestall those attacks—exist in uneasy
relation to each other.
The confusion over the official purpose of recent American airstrikes
is perhaps unsurprising given the longer history of retaliation in interna-
tional law. Reprisals, in particular, have long been one of the most compli-
cated and controversial features of international law, with Geoffrey Best, a
historian of the law of war, labeling reprisals “the most deceptive and shifty
word in the whole vocabulary of the subject.”6 Best was writing about bel-
ligerent reprisals used during wartime—otherwise illegal acts only allowed
if they respond proportionally to a prior illegal and harmful act, and are
intended to force the original lawbreaker back into conformity with inter-
national law. The scope of belligerent reprisals was successively narrowed
over the twentieth century, but they were never made outright illegal.
Armed reprisals used during peacetime, however, were seemingly outlawed
altogether in 1945. The United Nations (UN) Charter’s prohibition on
the use of force (unless approved by the UN Security Council or used in
self-defense) put peacetime reprisals outside the bounds of law.7 But if the
legal logic of armed reprisals disappeared, their strategic logic persisted,
ensuring continued debates after 1945 about the value of, and justification
for, peacetime reprisals.
This chapter considers American understandings of peacetime armed
reprisals in the first two decades of the Charter era. It considers a series of
debates over law and strategy that took place within the US government
in the 1950s and 1960s across the dual contexts of the Arab-Israeli conflict
and the Vietnam War. From 1945, the US government tended to accept
the idea that reprisals were no longer a legitimate tool of statecraft. Wash-
ington held this line against the new state of Israel’s insistence on using
armed reprisals against its Arab neighbors in the 1950s. But this stance
had consequences for how the United States framed its own recourse to
force against North Vietnam in the first half of the 1960s. Pressured into
accepting the implications of its antireprisal position in the Middle East for
its war in Southeast Asia, the United States nonetheless also adapted some
of Israel’s reprisal justifications for its own use in, and since, the Vietnam
War. How American military force is used and rationalized in the world
today, then, owes something to the legal ideas that emerged in the 1950s
and 1960s, and to the way those ideas migrated from one edge of Asia to
the other.
The Emergence of Israel’s Reprisal Policy, 1949–1953
The First Arab-Israeli War concluded with several armistice agreements

between Israel and the Arab states, signed between February and July of
1949. The demarcation line (the “Green Line” or pre-1967 borders) estab-
lished by the armistice agreements allowed for the cessation of major hos-
tilities but also set the scene for seven years of low-intensity conflict leading
up to the Second Arab-Israeli War (or Suez Crisis) in late 1956. Infiltra-
tion across the new boundaries from the Arab states (especially Jordan and,
from 1954, Egypt) into Israeli-held territory, and Israel’s responses, were
the major sources of friction in the years from the armistice agreements to
the Suez Crisis—“the core phenomenon of the Israeli-Arab conflict in the
years 1949–1956,” according to the historian Benny Morris.8 In early 1951,
Roger Tyler, the American consul in Jerusalem, acknowledged “the nearly
endemic and often uncontrolled infiltration across the border” in the pre-
vious two years. The Arab Legion (the Jordanian army) had made some
effort to restrain infiltration, “but lack of troops, popular condonement of
infiltration as a justified excursion, and a long, poorly demarcated frontier
have hindered the Legion,” Tyler reported.9 A significant share of the infil-
tration was inspired by local economic, social, and emotional concerns, as
Palestinian refugees (particularly those in Jordan, including at this time the
West Bank) sought to return to, and harvest from, their traditional lands.10
Israel introduced a series of defensive measures to counter infiltration,
such as establishing a border police presence, instituting a shoot-to-kill
policy, building fortifications, and laying mines and booby traps. Rather
than remove the economic incentives of infiltration, these measures tended
to prompt more organized, and armed, forays across the boundaries. “As
Israeli counter-infiltration measures improved,” writes Morris, “so did the
organization and sophistication of the infiltrators.”11 Organized economic
infiltration was also joined by politically motivated raiding for reasons of
revenge, sabotage, or murder, including from 1954 or 1955 state-sponsored

infiltration in the form of the Egyptian-backed Fedayeen.12 While these
armed raids from the Arab states “were only a small proportion of all infil-
tration,” notes Morris, “they provided the cutting edge that turned the
phenomenon into a major military-political problem for Israel.”13 Defen-
sive measures alone were deemed insufficient to address this problem, and
so Israel also developed a more assertive, and controversial, response to
infiltration: reprisals.
Early reprisal operations tended to be small-scale and localized. From
1949 to early 1951, “the usual sequence of events,” according to John
Glubb, the British commander of the Arab Legion, was “a party of Jew-
ish soldiers appears on the demarcation line and suddenly opens fire on a
group of civilians, killing or wounding a number of them.”14 This system of
localized collective punishment was occasionally supplemented by cross-
border raids that made more of an attempt to find and punish the actual
perpetrators of infiltrator attacks.15 The first major shift in Israel’s reprisal
policy became apparent in early 1951, highlighted by an Israeli reprisal
raid on the village of Sharafat in the early morning of February 7, killing
nine Palestinian villagers. With the Sharafat raid, reprisal actions became
noticeably more militarized, with regular (albeit unacknowledged) Israel
Defense Forces (IDF) units now taking the lead, and assertive, as these
units began to cross the border with Jordan more frequently and deliber-
ately. “Formerly they fired normally from their own side of the line,” wrote
Glubb. “Recently a new factor has arisen—namely carefully planned raids
by Israel soldiers into Jordan territory, resulting in the killing of a number
of civilians. These planned raids by Israel soldiers into Arab territory are
a new development.” The direction of the reprisal operations also became
more centralized. Glubb perceived “that orders to carry out these raids
have been issued by some very high authority, which has even laid down
the exact technique to be used. The object in every case seems to be merely
to kill Arabs indiscriminately.”16
Civilians, or at least civilian dwellings, were targeted directly in this
phase of the reprisal policy, from early 1951 to late 1953. In planning the
Sharafat raid, Israel’s prime minister, David Ben-Gurion, explicitly rejected
a retaliatory measure aimed at the Jordanian army in favor of “blow[ing] up
the adjacent village responsible for the crime.”17 This “rigid enforcement
of a reprisal-with-heavy-interest rule,” in Glubb’s words, was partly moti-
vated by perceptions of Arab mentality.18 Israeli officials speaking “off the
record” often “state contemptuously that Arabs understand no argument
but force,” reported Glubb in early 1953. “They claim that an occasional
‘punitive expedition’ against the natives is the only way to teach them a
lesson and keep them in their places.”19 The purpose of civilian targets
also moved beyond collective punishment at the local level to a strategy of
deterrence at the national level. Moshe Sharett, Israel’s foreign minister,
characterized this as “energizing the [Arab] government to take action,”
and Moshe Dayan, IDF chief of staff from late 1953, reasoned that the
Egyptian and Jordanian governments would be driven “to prevent such
incidents, because their prestige is [assailed], as the Jews have opened fire.”20
Israel’s more deliberate, militarized, and centralized policy of hitting
civilian targets across the 1949 demarcation line in order to prompt Jor-
dan to do something about infiltration—a policy of “active defense,” as
some Israeli officials termed it—was opposed by the United States. After
Israeli raids against the West Bank villages of Rantis and Falama on the
night of January 28–29, 1953, Tyler urged the State Department to issue
the “strongest warnings to Israel that such attacks on innocent people are
looked on with horror by official and public opinion” in the United States,
and to remind Israel that “her brutal aggressions across frontiers becom-
ing known will lessen sympathy for her and make it difficult for Congress
to appropriate the needed funds.”21 The American ambassador in Tel
Aviv, Monnett Davis, likewise reported that “our horror at deliberate acts
of reprisal involving the killing of innocent people should be restated.”22
An aide memoire was duly delivered, warning Israel that its reprisal raids
were “a grave danger to the stability and security of the region,” and that
if they continued the United States “must reserve its right to take appro-
priate action . . . possibly under the procedures of the United Nations.”23
Responding to the aide memoire, Ben-Gurion suggested there was no
other way to protect Israeli lives and property. “I confess I do not know
how we can do it without fighting back.” Urging the United States to con-
sider its own frontier history, Ben-Gurion insisted that in certain circum-
stances, reprisals were the “only effective means of self-defense.”24
On the night of October 12–13, 1953, infiltrators attacked the Israeli
village of Yehud (formerly an Arab town, known as Yahudia, before it was
depopulated), killing a woman and two children. Israel responded two
nights later by assaulting the West Bank village of Qibya, killing 69 people.
Accounts differ as to whether the soldiers checked the buildings for civil-
ians before destroying them. Arab Legion reporting on the raid labeled it
a “‘punitive’ expedition” and noted that most of the bodies had gunshot
or grenade wounds, suggesting the systematic killing of civilians.25 Ze’ev
Drory’s careful parsing of the chain of orders that preceded the Qibya raid
similarly suggests that civilians were directly targeted. At each level in the
chain of command, from high political to boots-on-the-ground military,

the targeting directive was ratcheted up until the final iteration, handwrit-
ten by the unit commander, Ariel Sharon, specified “the intention: attack
Qibya village, occupy it, and inflict maximum damage on human life and
property.”26 The reaction in Jordan and around the world was swift and
severe. Ben-Gurion tried to obscure the IDF’s role in the raid, telling the
nation by radio that “a searching investigation” had made it “clear beyond
doubt that not a single army unit was absent from its base on the night of
the attack.”27 But few believed these obfuscations. An American diplomat in
Tel Aviv told Sharett that a “policy of deliberate reprisals involving the kill-
ing of innocent persons inevitably created revulsion among the American
people and was a violation of every moral standard.”28 The United States
followed through on the ultimatum it had given Israel after the Rantis and
Falama raids and, together with the United Kingdom and France, called on
the Security Council to take up the matter.
In the face of international condemnation and Security Council con-
sideration, Israel did not so much attempt to justify the Qibya raid as to
contextualize it. Since early 1953, Israel had developed a rudimentary set
of rationales for its cross-border retaliatory operations. It was sometimes
suggested that patrols crossed the border in “hot pursuit” of infiltrators
caught in the act, although as some observers noted, the carefully planned
nature of the major IDF cross-border operations suggested they could not
be “simple pursuit of Arab infiltrators.”29 In any case, while its appeal would
persist for years to come, an asserted right of hot pursuit had no foundation
as a standalone justification for resort to force in international law. Perhaps
given this limitation, Israel also began to develop justifications based on the
idea of necessity.
In February 1953, Davis reported from Tel Aviv that recent raids were
thought to reflect a “major policy decision based on the conviction that the
volume of infiltration was intolerable and that the Arab authorities con-
cerned could not or would not cooperate in keeping it in check.”30 A few
days later, Sharett framed this not merely as a policy decision but also as
a legal justification. Telling Davis that Israel held Jordan responsible for
“negligence, connivance, or even instigation” in connection with the bor-
der violence, Sharett declared that unless the Jordanian authorities showed
themselves “ready and able” to control the situation, Israel “would consider
itself entitled, and in duty bound, to use all measures in exercise of legiti-
mate self-defense to put an end to attacks, protect life and property and
ensure the security of traffic.”31 Sharett’s language prefigured an “unwill-
ing or unable” doctrine that would be floated in the 1970s, and promoted
in the decades thereafter, but much like hot pursuit this rationale lined
up with neither the facts nor the law.32 Israel’s reprisal raids did not tar-
get the armed bands responsible for the more serious forms of infiltration
but civilians with no established connection to infiltration and, from 1954,
state agents. Striking nonstate actors on the territory of another state with-
out first gaining the permission of that state was, moreover, difficult to
square with the UN Charter.
The most enduring argument that Israel advanced throughout 1953,
however, was to suggest that the scale and intensity of infiltration had
reached a point that excused an armed response. Israel began the systematic
collection and collation of infiltration statistics from 1952, and it began to
exploit that data in early 1953.33 In a late January 1953 letter to the local UN
commander, a senior IDF officer conveyed figures for infiltration across
1952 and highlighted six villages that Israel judged to be the source of most
marauders and the sites of thieves’ markets.34 When two of those villages,
Rantis and Falama, were struck two days later, the message implicit in the
letter became clear: a series of minor incidents could invite a single major
blow in return. In mid-1953, Abba Eban, Israel’s representative to both the
United States and the United Nations, made the case to State Department
officials “that what was previously infiltration with predominant intent to
steal has turned into a guerrilla pattern with intent to kill.”35 Political and
editorial rhetoric extended this logic into a general claim that the magnitude
of infiltration as a whole amounted to a form of warfare, with Israel having
an attendant right to respond. “Most Israeli politicians came to regard the
continual infiltration,” suggests Morris, “as a type of undeclared ‘guerrilla
war’ designed to weaken and perhaps even destroy Israel.”36
It was this line of reasoning that came to the fore after the Qibya raid,
as defenders of Israel encouraged the world to see the raid not merely
in the context of the Yehud murders but in light of the whole pattern of
infiltration into Israel. Sharett told American officials that he “did not
wish to say a word in justification” for the Qibya raid, but he nonetheless
insisted that the raid had to be seen against the “rising tide of border law-
lessness.” To treat the Qibya raid in isolation would “distort the picture,”
claimed Sharett.37 Israeli newspapers reinforced this message, editorializ-
ing that it “would be a crying injustice and perversion of the facts if the
Security Council were to concentrate on the events of the last days only,”
rather than addressing the “whole complex of small scale border war” or
the “blood-soaked chain of incidents” that preceded the Qibya raid.38 In
a private meeting with US officials, Eban spoke of “a long series of inci-
dents and provocations” to make the case that the attack on Qibya “was not
an isolated incident.”39 In the Security Council, he declared that “violent

marauding from Jordan is the origin of the sequence of bloodshed,” and
that what is “politely called infiltration is actually a campaign of murder,
robbery, theft and sabotage which has increased in intensity since the lat-
ter part of 1952.” No other UN member state faced “such cumulative and
constant pressure” to its security.40
The legal character of this line of reasoning was left open, but two basic
claims can be read into Israel’s argument: that while each individual instance
of infiltration might not have warranted a military response, several minor
incidents were cumulatively enough to trigger a right to respond; and that
high voltage but infrequent responses were equivalent or proportionate to
a series of less destructive but more frequent events. Israel challenged the
idea that its actions were both precipitous and excessive.
Israel’s attempts to soften the blow of condemnation did little to influ-
ence the drafting of the Security Council resolution on the Qibya affair.
Whereas an early draft of the resolution had the Security Council express-
ing “its deep concern” at the Qibya raid, the final resolution had the coun-
cil more forthrightly expressing “the strongest censure.”41 Resolution 101
found that “the retaliatory action at Qibya taken by armed forces of Israel
on 14–15 October and all such actions . . . are inconsistent with the parties’
obligations under . . . the Charter of the United Nations.”42 The resolu-
tion was adopted by a vote of nine to zero, with abstentions from Lebanon
and the Soviet Union.43 (Lebanon’s delegate, Charles Malik, had argued
in the drafting deliberations for removing the word “retaliatory” from the
resolution altogether so as to avoid the impression that the Qibya raid
had been provoked.)44 Of particular note, the resolution made no mention
of the Israeli suggestion to consider the Qibya raid in the context of the
whole pattern of infiltration. Washington did this deliberately, writing to
its Middle Eastern posts that that the effect of the censure was “accentu-
ated by ignoring suggestions advanced by Eban that the Security Council
consider the Qibya raid in the context of the border situation as a whole.”45
The United States rejected not merely Israel’s reprisal policy but also any
suggestion that a pattern of preceding minor incidents could justify the use
of military force across borders.
Moderating and Justifying Israel’s Reprisal Policy, 1954–1956
The Qibya raid “had brought Israel’s international standing to the edge of
the abyss,” reported Abba Eban to the Israeli government. “Even Deir Yas-
sin did not evoke such nausea.”46 In response, Israel doubled down on the
idea that the overall pattern of infiltration should be considered in making
any assessment of the legitimacy of the Qibya raid. Even before Resolu-
tion 101 had been finalized, Eban was insisting to State Department offi-
cials that one of Israel’s “fundamental objections” to the resolution was
that “the censuring of Israel for its actions at Kibya was unprecedented in
the annals of UN history and unwarranted in view of the disproportionate
emphasis which was placed on Israel’s misdemeanors as opposed to those
of the Arabs.”47 In a Knesset foreign affairs debate, Sharett declared that
“Qibya must be seen in terms of unceasing acts of aggression and murder
over the years.”48 Israel increased the number of complaints it made to the
Israel-Jordan Mixed Armistice Commission (MAC), as did Jordan, both
governments “anxious to establish for the record . . . as impressive a mass
of evidence condemning the other party as possible.”49 In his report to the
Security Council mandated by Resolution 101, the chief of staff to the
United Nations Truce Supervision Organisation (UNTSO) wrote of the
“psychological warfare” being waged by Israel and Jordan.50
Israel’s public relations push in late 1953 and early 1954 was in part an
intensification of the efforts made since early 1953 to embed a sense of
equivalency or proportion between ongoing infiltration from Jordan and
Israel’s less frequent but more lethal retaliatory blows. It was also indica-
tive of new leadership, as Ben-Gurion stood down as prime minister in
December 1953 and Sharett assumed the top job. More moderate than
Ben-Gurion and attuned to the importance of diplomacy, Sharett empha-
sized political rather than military offensives. His rise to the top of Israel’s
government made its internal factions more visible as he battled “activ-
ists” like Dayan over the proper course of Israeli security policy. But it
would be a mistake to exaggerate the importance of this divide for Israel’s
reprisal operations. The difference between Sharett and Ben-Gurion was
one of “style more than substance,” writes one of Ben-Gurion’s biogra-
phers, Tom Segev. “Sharett also believed that the conflict with the Arabs
could not be solved and that all that could be done was to manage it,” sug-
gests Segev, noting that the new prime minister “did not reject reprisal
operations in principle.”51
Believing that reprisal operations were ineffective tools in advancing
Israel’s security, Sharett nonetheless accepted that Israel’s infiltration-
induced “rage must be defused” from time to time—that “there is a need
to let off steam.”52 Reporting six months into Sharett’s premiership on “a
good deal of private discussion here about the policy of retaliation,” the
American embassy in Tel Aviv underscored Sharett’s political instincts.
Despite the public and government recognizing that the reprisal policy
was “an international liability to Israel,” the embassy assessed that the pol-
icy was likely to remain operational. “Retaliation constitutes an emotional
outlet for most of the public and is responsive to the widely-held concept
that the Arabs understand only force.”53 After the Qibya raid, therefore,
Sharett worked not to end the reprisal policy but to better balance it with
Israel’s wider foreign policy. He sought greater civilian control over the
military and consideration of a wider array of local and international fac-
tors in the decision process that approved reprisal operations. He desired a
more finely calibrated reprisal policy in which the “dimensions” and “mag-
nitude” of an operation could be adjusted “according to circumstances,”
and with appropriate “intermissions in the reprisals process.”54
If Sharett and the moderates accepted the idea that reprisals were
necessary, Dayan and the hardliners accepted the reality that the repri-
sal policy needed to change given the international backlash to the Qibya
raid, including Resolution 101. Dayan, in Drory’s words “the moving spirit
behind the policy of retaliation,” acknowledged “that a military opera-
tion had to be seen as justified by international public opinion.” He did
so begrudgingly, arguing that “what is permitted to the Arabs—and even
to other peoples—will not be forgiven and pardoned if done by Jews or
Israelis.” But he accepted the essential lesson from the Qibya affair: that
“even when the Arabs harm peaceful citizens we must direct our responses
to military targets.” The IDF issued new standing orders, and operational
instructions now included a clear requirement to avoid harming women
and children. Civilian targets would no longer be selected for reprisal
operations, with objectives now limited to army camps, military posts, and
police stations.55
Israel’s new look reprisal policy would soon get its first test. On March
17, 1954, an Israeli bus was ambushed in a pass, Ma’ale Akrabim, in the
Negev, with 12 people killed. The Israel-Jordan MAC, with no clear evi-
dence as to the culprits, reached no decision on the massacre. Israeli offi-
cials asserted “that the Jordanian Government is directly implicated, since
it does not guard the frontier and has been careless in its attitude towards
infiltration,” and stopped attending MAC meetings in protest.56 Sharett
withstood political and public pressure to retaliate immediately, but he
relented when a watchman in the Israeli settlement of Kessalon was killed
shortly afterwards. Ostensibly in reply to the Kessalon murder, but with
the Ma’ale Akrabim attack also a motivating factor, Israeli forces struck a
National Guard (Jordanian militia) outpost in the village of Nahhalin on
the night of March 28–29, killing nine people. A significant number of
the casualties were national guardsmen or Arab legionnaires sent to rein-

force the outpost after the battle broke out.57 While Sharett followed Ben-
Gurion’s lead in denying official involvement in the raid—the new prime
minister publicly described it as a “local affair”—the American embassy in
Tel Aviv noted that the “nature” of the Nahhalin raid was “some substan-
tiation” of reports that Sharett had applied new conditions to the reprisal
policy to ensure they were “(a) selective and limited, (b) against the com-
munity in the vicinity of the crime for which the reprisal takes place, and
(c) that no women and children were to be killed but only members of local
defense force or others who resist.”58
In his 1972 reflection on reprisals, the international law scholar Derek
Bowett pondered the absence of a Security Council condemnation of the
Nahhalin raid and suggested it was due to the “reasonableness” of the
Israeli reprisal measure. Bowett was struck by “the equation—or propor-
tionality—of the damage: the guerrilla attack from Jordan on an Israeli
bus in the Negev killed eleven, the Israeli attack on the Jordanian village
killed 9 and wounded 14.”59 But this assessment is misleading. It is true that
the United States, along with France and the United Kingdom, wanted
the Security Council to consider the two incidents together (each was the
subject of a separate formal complaint), with the aim of providing a “safety
valve” for the relief of immediate tensions in the region and, the larger
prize, better mechanisms for peace between Israel and its neighbors.60
But this “remedial approach” did not entail equating the two attacks. The
United States was not moved by the “reasonableness” of the Nahhalin raid
and indicated its “complete disapproval of Israel’s act.”61
Nor was the United States moved by Eban once again trying to place
Israeli raids within “the context of preceding events.” It was “fantastic and
grotesque,” Eban told the Security Council, to isolate the Nahhalin “event
from the long and somber succession of Jordan aggressions and violations
which preceded it.” Eban stated that 58 “armed attacks” upon Israel had
originated from the vicinity of Nahhalin in 1953, resulting in 4 people
killed, with a further 11 “armed attacks” in 1954 to date, including the
killing at Kessalon. “The problem,” Eban summarized, “is one of constant
military attack,” and he was determined to “bring to the notice of the Secu-
rity Council these trends and tendencies of armed attack which have made
the State of Israel the chief casualty of the violence which has taken place
in the last four months.”62 The invocation of “armed attack” was a subtle
reference to Article 51 of the UN Charter, which allows for self-defense “if
an armed attack occurs,” suggesting that perhaps Eban was trying to place
this now familiar Israeli argument on firmer legal ground.
A draft resolution prepared by the British government and supported

by Washington, however, gave no indication that the Nahhalin raid was
somehow more appropriate because of its military-hued target, low level of
civilian casualties, or proportionality either to the Ma’ale Akrabim provo-
cation or to the whole pattern of prior infiltrator attacks. If passed, the
draft resolution would have expressed, in the same language as the Qibya
resolution, “the strongest censure” of the attack on Nahhalin village, which
was “inconsistent with Israel’s obligations under . . . Article II, paragraph
4 of the Charter.”63 The Security Council debate on the Nahhalin and
Ma’ale Akrabim incidents stalled because of procedural wrangles, a change
of government in Jordan, attention shifting from the Israel-Jordan bound-
ary to the Israel-Egypt boundary, and concerns around Soviet obstruction-
ism, not because of any assessment, formal or informal, that the Nahhalin
raid had reached some kind of threshold standard of “reasonableness” or
because the pattern of preceding infiltration amounted to an armed attack
thereby justifying an Israeli response.
The new look reprisal policy may have resulted in fewer civilian casu-
alties, but it also required more soldiers and less obfuscation. “The new
strategy,” writes Morris, “necessitated far larger raiding forces (battalions
and brigades rather than squads, platoons, and companies), [and] also usu-
ally called for official admission of responsibility.” Attacking state facilities
such as army barracks and police stations also invited greater state spon-
sorship of infiltration in return, and as the weight of Israel’s reprisal policy
shifted from Jordan to Egypt—as attention turned “from the West Bank
to the Gaza Strip as the problematic heart of the Israeli-Arab conflict,” in
the words of Morris—the new policy therefore encouraged the rise of the
Egyptian-backed Fedayeen.64 The epitome of the new direction in the repri-
sal policy was the Black Arrow operation of February 1955, in which the
IDF struck a small Egyptian army camp near Gaza city, killing 37 Egyptian
soldiers and two civilians.
Israel offered divergent justifications for the Black Arrow raid. Ben-
Gurion, back as defense minister and effectively prime minister in waiting,
instructed the IDF to concoct a story of “hot pursuit,” but the more serious
justifications were offered by foreign ministry officials, who “explained the
raid as a response to the previous six months of Egyptian border attacks,”
complete with detailed figures for infiltration going back a year.65 In the
Security Council, Eban noted “the persistent toll of human life, and to
a lesser extent of property, which results from this purposeful, constant
and mounting tide of illegal crossings,” and decried the number of Israeli
“graves which have mounted, one by one and two by two, across the years
as a result of illegal crossings of the armistice demarcation line.”66 Despite

Eban’s arguments, the Security Council condemned the attack without cit-
ing any provocations.67
The appeal to a pattern of infiltrator attacks was by now a foundational
Israeli argument for both the use of reprisal measures and the proportion-
ality of those measures. Israel advanced this rationale in the wake of mul-
tiple reprisal raids throughout 1955 and 1956.68 Officials even used it to
justify Israel’s Sinai campaign in the Suez Crisis—“in a sense the ultimate
and largest retaliatory strike,” according to Morris. On October 29, 1956,
as an IDF offensive against Egypt was in progress, the foreign ministry
issued a statement declaring Israel’s objective was “to eliminate the Egyp-
tian Fedayeen bases in the Sinai Peninsula,” and claiming 24 Israeli casual-
ties over the previous week from Fedayeen mines. As Morris notes, the idea
was to plant a seed “that the IDF attacks were limited reprisals, not part of
an unfolding war” concocted by the United Kingdom, France, and Israel
working together in a secret partnership.69 But even as its value as a tool of
deception was waning, Israel continued to advance the general argument
in support of its actions in the Sinai Peninsula.
At a special session of the UN General Assembly on the Suez Crisis,
Eban noted that with the advent of the Nasser regime and the Fedayeen,
Israel’s boundary with Egypt had been “violated with consistency and with
special frequency and intensity during the past two years.” Refuting the
idea that Israel’s “obligations under the United Nations Charter require it
to resign itself to . . . armed units practicing open warfare against it,” Eban
declared that Israel had “been forced to interpret Article 51 of the Charter
as furnishing both a legal and a moral basis for . . . defensive action.” Not-
ing that the “inherent right of self-defence is conditioned in the Charter
by the existence of armed attacks against a Member State,” Eban asked
rhetorically if anyone could “say that this long and uninterrupted series of
encroachments did not constitute in its totality the essence and the reality
of an armed attack?”70
Israel’s defense of its actions in the Suez Crisis marked the culmination
of the argument it had developed since early 1953 regarding the pattern
of infiltration, or “series of encroachments.” First offered merely to con-
textualize but not excuse Israeli reprisal actions, it had now morphed into
a full-fledged argument under the international law of self-defense. In the
UN debate over the Suez Crisis, Eban identified the “fundamental concept
of reciprocity” that underlay Israel’s attitude to the use of force but was
otherwise careful to avoid the terminology of retaliation or reprisal.71 The
United States opposed the actions of Israel (and the United Kingdom and
France) in the Suez Crisis, just as it had opposed Israel’s reprisal policy and
the rationales given for it over the previous half-decade. As it intensified
its support for South Vietnam in the 1960s, however, Washington would
be forced to reckon with its opposition to reprisals and to reconsider its
rejection of the idea that a pattern of minor events could help discern the
existence of an armed attack and the appropriate level of response.
The US Policy Debate over the Use of Reprisals in Vietnam, 1961–1965
The 1960s brought new challenges for Washington, and new leadership
determined to address those challenges in new ways. Soviet leader Nikita
Khrushchev’s early 1961 pledge to support wars of national liberation
around the world heightened concerns within the incoming administration
of John Kennedy over subversion, infiltration, and other methods of “indi-
rect aggression” from Latin America to Southeast Asia. Devising legitimate
ways to counter these perceived trends, including through the use of force,
was a key concern for US officials engaged in national security affairs in
the first half of the 1960s. The conflict in Vietnam increasingly became the
context for developing these measures and their justifications, but in doing
so American policy advisers and lawyers had to grapple with Washington’s
stance on Israeli reprisals in the 1950s.
As the American-supported regime of Ngo Dinh Diem came under
increasing pressure in 1961, Kennedy sent his aides Maxwell Taylor and
Walt Rostow to investigate the situation in South Vietnam. Their report
of November 1961 recommended bolstering American aid to Saigon, but
they also looked forward to a time when more forceful measures would
be contemplated. “The United States must decide how it will cope with
Khrushchev’s ‘wars of liberation,’” wrote Taylor and Rostow in a cover-
ing letter to the main report. “This is a new and dangerous Communist
technique which bypasses our traditional political and military responses.”
They suggested that “the time may come in our relations to Southeast
Asia when we must declare our intention to attack the source of guerrilla
aggression in North Viet-Nam and impose on the Hanoi Government a
price for participating in the current war which is commensurate with the
damage being inflicted on its neighbors to the south.”72 As one perceptive
reader of the Pentagon Papers noted of the Taylor-Rostow report, “the
logic of reprisal was present in Vietnam well before the decision to bomb
the North.”73
The State Department’s Office of the Legal Adviser, led in the Ken-
nedy years by Abram Chayes, reviewed the Taylor-Rostow report for its
international law ramifications. Chayes and his team described two kinds
of “retaliatory attacks” that might be contemplated against North Viet-
nam. One kind of retaliatory attack was small-scale shallow raids into
North Vietnamese territory to hit those places the southern insurgent
National Liberation Front (NLF) was using for resupply and sanctuary,
but not to attack North Vietnamese targets per se. “It would seem jus-
tifiable under international law principles relating to hot pursuit to fol-
low the enemy across the border,” Chayes wrote, “and attempt to destroy
his bases of operations adjacent to the border.”74 One of the varied jus-
tifications that Israel offered in the early 1950s for its raids on Jordan,
and would continue to offer in the years to come, hot pursuit was also
offered as an excuse by American officials throughout the Vietnam War.
Despite its 1961 advice, the Office of the Legal Adviser would come to
recognize the legal deficiencies of any standalone hot pursuit doctrine and
oppose its use in justifying US operations that crossed into the territory of
South Vietnam’s neighboring states, particularly Cambodia.75 Self-defense
would become the only acceptable public standard by which the legiti-
macy of American strikes outside South Vietnam could be assessed. More-
over, the doctrine had strategic as well as legal deficiencies, as shallow
raids across the border to hit southern guerrillas hiding in North Vietnam
were unlikely to impose enough of a price on Hanoi—to pack enough of
a retaliatory punch—under the Taylor-Rostow logic.
The second kind of retaliatory attack described by Chayes—“direct
attacks against Hanoi and similar strategic centers deep inside North
VietNam”—was more aligned with the Taylor-Rostow logic of striking
the source of the problem. But Chayes denied the legality of such attacks.
Noting that the right to self-defense stipulated in Article 51 of the Char-
ter could be invoked only in the event of an armed attack, Chayes argued
that North Vietnamese infiltration into South Vietnam did not meet the
standard of armed attack, which was “generally understood as a direct
external attack upon one country by the armed forces of another such as
the German invasion of Poland in 1939 or the North Korean attack on
South Korea in 1950.” With regard to direct attacks against strategic tar-
gets in North Vietnam, Chayes concluded that in “the absence of such
overt aggression by means of armed attack against South VietNam, such
action would go beyond permissible self-defense under general interna-
tional law and would be contrary to the United Nations Charter.”76 Chayes
and his team undermined the Taylor-Rostow logic on legal grounds, which
may have made some small contribution to the lack of discussion about
overtly striking North Vietnam in the administration’s policy debates of

1962 and 1963. But the temptation to “attack the source” would remain,
and in August 1964, when two US destroyers reported coming under fire
from North Vietnamese torpedo boats in international waters, the United
States responded.
On August 2, North Vietnamese torpedo boats fired upon the USS
Maddox in the Gulf of Tonkin after the Maddox had first fired several
warning shots. Two days later, the Maddox and USS Turner Joy reported—
mistakenly it is now generally believed—coming under fire again. The
president, now Lyndon Johnson, ordered air strikes on sites in North Viet-
nam associated with the torpedo boats. In his address to the nation on the
evening of August 4, Johnson avoided the explicit language of reprisal or
retaliation, but in a press conference Secretary of Defense Robert McNa-
mara did call the US airstrikes “retaliation for this unprovoked attack on
the high seas.” Critics jumped on both the language and logic of retaliation
evident in the US airstrikes. “Contemporary international law categori-
cally denies and rejects a right of retaliation,” declared the Soviet delegate
to the Security Council. “The recognition of the right of self-defense in
Article 51 of the United Nations Charter ipso iure precludes the right of
retaliation.” In the same meeting, Czechoslovakia’s delegate reminded
everyone of a statement the US ambassador to the United Nations, Adlai
Stevenson, made to the council only four months previously reiterating the
US government’s “emphatic disapproval of provocative acts and retaliatory
raids, wherever they occur and by whomever they are committed.”77
While critics attacked the American airstrikes of August 1964 because
of their retaliatory nature, others praised them for precisely the same rea-
son. The strategic theorist Thomas Schelling thought that “it was as an act
of reprisal—as a riposte, a warning, a demonstration—that the enterprise
appealed so widely as appropriate.”78 Schelling was especially influential
in national security officialdom at this time, including with key figures in
the 1964 and early 1965 policy discussions on launching a more regular-
ized bombing campaign against North Vietnam. It may not be surprising,
therefore, that the language of reprisal was even more prominent in the
next set of airstrikes against North Vietnam. On February 7, 1965, after an
NLF attack on US and South Vietnamese military positions near Pleiku in
the Central Highlands, Johnson ordered airstrikes against North Vietnam.
The White House statement described the “retaliatory attacks against
barracks and staging areas in the southern area of North Vietnam,” code-
named Operation Flaming Dart, as “appropriate reprisal action against
North Vietnamese targets.”79
The antiwar Lawyers Committee on American Policy Towards Viet-

nam later condemned both the reliance on an implied right of reprisal
in the White House statement of February 7 and the fact that the official
justification from the State Department’s Legal Adviser, a memorandum
prepared by Chayes’s successor, Leonard Meeker, and released in March
1966, neglected to mention the initial US reliance on a reprisal rationale.80
But the Lawyers Committee’s criticism was somewhat misplaced. Wash-
ington’s official justification went in two directions on February 7. At the
same time as the White House and Pentagon were using the language of
retaliation and reprisal, Adlai Stevenson was using the language of self-
defense. The air attacks against North Vietnam were “a justified measure of
self-defense,” wrote Stevenson to the president of the Security Council.81
Where the White House described “appropriate reprisal action,” Steven-
son wrote of “prompt defensive action.” Meeker’s March 1966 memo did
not ignore the rhetoric of reprisal and retaliation out of an oversight, as
the Lawyers Committee implied. It was rather a deliberate rejection of
that rhetoric and a vote of support for Stevenson’s language of self-defense.
The March 1966 memo was the second of two major memos that
Meeker issued as legal adviser defending the position of the United States
in Vietnam on the basis of international law. The first memo, prepared in
the immediate wake of the air raids of February 7, 1965, similarly did not
mention justifications of retaliation or reprisal. But a covering note Meeker
wrote in forwarding the memo to National Security Adviser McGeorge
Bundy did explicitly address the language used by the White House on
February 7. In his covering note, dated February 11, Meeker took aim at
the language of reprisal and retaliation used by the administration over
the preceding days. He recommended that the United States avoid “reli-
ance on theories of reprisal or retaliation, which are less readily available
under contemporary international law than they were before the Charter.”
Instead of relying on an outmoded right of reprisal, Meeker wanted the
United States to base its justifications, as Stevenson had, on the right of
collective self-defense under the UN Charter. This would be “politically
more appealing in presenting our case to other governments and in the
court of public opinion around the world.”82 Read alongside this covering
note, the memo’s lack of attention to the subject of reprisals makes more
sense. The memo did not mention reprisals because it sought to bury the
very idea that the United States could base its actions on a right of reprisal.
The memo was designed not merely, or even principally, to justify Ameri-
can actions to the world but to win a point in the internal debate over the
shape of that justification.
Of particular significance, in his covering note to Bundy, Meeker

argued the “inconsistency in US reliance on reprisal or retaliation with
respect to Vietnam when we have been publicly critical of such justifica-
tions in other circumstances—for example, in the Near East in situations
involving Israel and the Arab states.”83 Washington’s strong stance against
Israel’s reprisal policy and operations in the 1950s was now circling back to
influence the policy—or at least the language justifying the policy—of the
United States in Vietnam. Meeker’s argument, backed up by the precedent
of Washington’s condemnation of Israeli reprisal operations in the 1950s,
prevailed and the explicit language of reprisal and retaliation was dropped
from Washington’s official Vietnam War vocabulary.
This rejection of retaliation as a rationale for US actions against North
Vietnam was confirmed later in 1965. In December, State Department offi-
cials objected to the rhetoric of reprisal in a request from the US ambassa-
dor in South Vietnam, Henry Cabot Lodge, Jr., to launch airstrikes against
a new North Vietnamese target in retaliation for the NLF bombing of
Saigon’s Metropole Hotel, which served as a billet for US personnel. Sec-
retary of State Dean Rusk wrote to Lodge, approving a strike on the Uong
Bi thermal power plant but mandating that it “not be represented as ‘repri-
sal’ for [the] Metropole incident.” Rehearsing Meeker’s arguments from
February, Rusk wrote, as “background,” that the United States government
“has repeatedly joined in denunciation of specific reprisal actions as in
Yemen, Algeria, and Israel.” The “basic reason” to avoid an “explicit reprisal
rationale,” concluded Rusk, was “to avoid serious international repercus-
sions for action that we believe is in fact distinguishable from cases we have
denounced but that could not easily be separated in face of criticism.”84
Rusk did not specify how he thought American actions in Vietnam in 1965
were distinguishable from Israeli actions against the Arab states, but what-
ever differences existed there were also striking similarities. Whether wit-
tingly or not, the United States adopted some of the techniques that Israel
had developed to justify its reprisal operations.
Repurposing the Pattern of Aggression, 1964–1965
The United States launched its not-a-reprisal airstrike on the Uong Bi

thermal power plant on December 15, 1965. Rusk instructed the US
embassy in Saigon to tell any inquiring media “that the target is directly
related to military installations in the area being used in support of con-
tinuing infiltration and aggression in the South by the North Vietnamese
regime” and that the “whole targeting pattern of bombings in the North
is of course related to level of VC [Viet Cong] action in the South.” The
Metropole incident was only “one of the acts indicating a continued high
level of terrorism” and infiltration, noted Rusk.85 McNamara toed the same
line, declaring publicly that the attack was “representative of the type we
have carried out and will continue to carry out. I would not characterize
it as retaliatory, but I think it is appropriate to the increased terror activ-
ity.”86 Whereas in February 1965, administration spokesmen were offering
divergent rationales for the American use of force, by the end of that year
the messaging was more consistent. Meeker had won his point, partly by
recalling American opposition to Israeli reprisals, and the United States
was now justifying its actions against North Vietnam not on any supposed
right of retaliation but on the right of self-defense.
In his statement notifying the Security Council of the American response
to the claimed attacks on US ships in the Gulf of Tonkin, Stevenson was
careful to frame the American use of force as a defensive measure. The action
US military forces “took in self-defense is the right of all nations and is fully
consistent within the provisions of the Charter of the United Nations,” Ste-
venson told the council. He explained that the American response against
torpedo boats and their support facilities on the North Vietnamese coast was
“limited in scale—its only targets being the weapons and facilities against
which we had been forced to defend ourselves.”87 But to wait for a Gulf of
Tonkin-like incident—real or imagined—before launching each “limited”
response was an inefficient means of pressuring North Vietnam to stop its
support for the southern insurgency. The Taylor-Rostow logic—striking the
(northern) source of the (southern) problem—had lain dormant over 1962
and 1963, but it reemerged in the policy debates of 1964 and early 1965. As
it reemerged, the justification for strikes against North Vietnam also shifted
from the direct provocation of North Vietnamese gunboats to the pattern of
North Vietnamese-directed violence in South Vietnam.
Even as Stevenson was carefully establishing a precise connection
between the American airstrikes of August 4, 1964, and the alleged North
Vietnamese provocation in the Gulf of Tonkin, he was also laying the
groundwork for a more indeterminate justification based on the pattern of
small-scale NLF attacks in South Vietnam. This rationale would, in turn,
allow for a much more expansive and regular use of force against North
Vietnam than the airstrikes of August 4. In the Gulf of Tonkin debate in
the Security Council, Stevenson argued that the alleged North Vietnamese
attacks on the US destroyers “defy rational explanation except as part of a
larger pattern with a larger purpose.” An attack on “United States destroy-
ers in international waters is much more spectacular than the attempt to

murder the mayor of a village in his bed at night,” noted Stevenson, “but
they are both part of the pattern,” and it was “only in this larger view that we
can discuss intelligently the matter that we have brought to this Council.”88
The legal logic planted by Stevenson in August 1964 was operational-
ized in conjunction with the Flaming Dart strikes of February 7, 1965.
In notifying the Security Council of the US airstrikes, Stevenson did not
make a precise connection between the attack at Pleiku and the American
response, as he had between the Gulf of Tonkin provocation and the US
airstrikes of August 1964. Instead he identified the target simply as “one
of the major staging areas for the infiltration of armed cadres of North
Viet-Namese troops into South Viet-Nam in violation of international
law.” A particular attack had, in Stevenson’s reasoning, invited a general
response. This was made possible by framing Pleiku as one point in a lon-
ger sequence. The insurgent attacks on Pleiku “related directly to the cen-
tral problem in Viet-Nam,” which was “a pattern of military operations
directed, staffed, and supplied in crucial respects from outside the country,”
wrote Stevenson. After detailing some aspects of the infiltration of soldiers
and military equipment since 1959, and especially since 1964, Stevenson
wrote that what “we are witnessing is a sustained attack for more than
six years across a frontier set by international agreement.” The United
States was helping South Vietnam to resist “this systematic and continuing
aggression,” and because “reinforcement of the Viet Cong by infiltrators
from North Viet-Nam is essential to this continuing aggression, counter-
measures to arrest such reinforcement from the outside are a justified mea-
sure of self-defense.”89
The Office of the Legal Adviser’s first memorandum laying out the pre-
ferred justification for the Flaming Dart strikes (and implicitly rejecting
a justification based on retaliation) used much the same language as Ste-
venson’s letter to the Security Council. The memo insisted that the insur-
gent attacks of February 7 were not “an isolated occurrence” but were part
of a “continuing armed aggression.” Meeker and his team wrote that the
“attacks against South Viet-Nam have mounted in intensity since August,”
and that “the whole course of conduct of North Viet-Nam, particularly as
it has evolved in recent months, adds up to open armed attack within the
meaning of Article 51—armed aggression carried on across international
frontiers.” In the absence of Security Council action to maintain an effec-
tive peace in the area, the United States could continue its strikes against
North Vietnamese targets until “the regime in Hanoi decides to cease its
aggressive intervention in South Viet-Nam.”90
In his second memo of March 1966, Meeker emphasized that “the

external aggression from the North is the critical military element of the
insurgency.” According to the United States, the violence in South Viet-
nam was no longer merely state-sponsored, as in 1961, but now directly
perpetrated by North Vietnam. Meeker made special note that since 1964
“the greater number of men infiltrated into the South have been native-
born North Vietnamese,” including regular units of the North Vietnamese
army. While in a guerrilla war, “an ‘armed attack’ is not as easily fixed by
date and hour as in the case of traditional warfare,” wrote Meeker, “the
infiltration of thousands of armed men clearly constitutes an ‘armed attack’
under any reasonable definition.” While there “may be some question as to
the exact date at which North Viet-Nam’s aggression grew into an ‘armed
attack,’” concluded Meeker, “there can be no doubt that it had occurred
before February 1965.”91
The US rationale for using military force against North Vietnam from
February 1965 did not (after some initial confusion) rely on an imagined
right of retaliation. But its favored argument of self-defense did nonethe-
less owe something to the 1950s debates over reprisals, and in particular to
Israel’s claim that its reprisal raids should be considered within the whole
context or broader pattern of infiltration from its Arab neighbors. While
rejecting this argument in the 1950s, Washington came to embrace a ver-
sion of it in the mid-1960s in defense of its actions in Vietnam. High-
lighting the whole pattern of aggression in South Vietnam—along with
public messages about hitting only military targets and minimizing civilian
casualties—helped to signal American actions as proportional and reason-
able. But more immediately in February 1965 (and later, when reflecting
upon February 1965), it was put to work as a claim that, when taken as a
whole, North Vietnamese violence in South Vietnam had reached suffi-
cient intensity or “tempo” to qualify as an “armed attack” under the mean-
ing of Article 51 of the UN Charter.92
A pattern of events in South Vietnam that proved “systematic and con-
tinuing” aggression from North Vietnam provided the legal justification
for the White House to move beyond tit-for-tat airstrikes such as the Gulf
of Tonkin response (“a short-term stimulant” to South Vietnamese morale,
but “a long-term depressant,” complained Bundy) and toward regularized
bombing of North Vietnam. On February 7, 1965, the same day as the
Pleiku attack and Flaming Dart response, Bundy wrote a memo to John-
son recommending a policy of “sustained pressure” against North Vietnam
“in which air and naval action against the North is justified by and related
to the whole Viet Cong campaign of violence and terror in the South.”
Bundy, at this point still using the language of retaliation, characterized

his recommendation as a policy of “graduated and continuing reprisal”
or “sustained reprisal.”93 Meeker would ensure that the language of self-
defense was substituted for Bundy’s rhetoric of reprisal. But in identifying
North Vietnam’s actions as an “armed attack”—arguing, in effect, that the
whole pattern of violence in South Vietnam was more than the sum of
its parts—he also provided the legal justification for the implementation
of Bundy’s proposed policy. Operation Rolling Thunder, a massive aerial
bombardment of North Vietnam, began within a month of February 7 and
continued for nearly four years.
Conclusion
In the 1950s and 1960s, the governments of Israel and the United States
(the latter via its support of South Vietnam) wrestled with the problems
associated with infiltration, subversion, and guerrilla warfare. They each
relied on a variety of rationales for targeting the groups involved in these
activities outside the territorial bounds of Israel and South Vietnam. Both
Israel and the United States at times justified their actions as “hot pur-
suit,” although eventually both governments would accept that the so-
called right of hot pursuit had no independent standing in international
law.94 More enduring was the argument advanced in rudimentary form by
Israeli foreign minister Moshe Sharett in early 1953 that Israel needed to
act against infiltration because Jordan was, if not complicit in the violence,
then at least unwilling or unable to address it. This “unwilling or unable”
argument would gain more extensive legal articulation in 1970 as the
United States attempted to justify the Cambodian Incursion. From there,
the doctrine circled back to the Arab-Israeli conflict, where the United
States offered it first as a rationale for Israel’s Entebbe rescue operation
in 1976 and Israel then relied on it beginning in the late 1970s and early
1980s for its operations against the Palestine Liberation Organization in
Lebanon.95
But Israel and the United States did not merely seek to act against
nonstate actors in the territories of other states—infiltrators in Jordan,
Fedayeen in Egypt, and Vietnamese communist forces in North Vietnam
and Cambodia. They also sought to “strike at the source,” as they saw it, of
the aggression in order to punish the states of Jordan, Egypt, and North
Vietnam for assisting or organizing the infiltration or subversion and to
compel them to cease their actions. Despite this common underlying logic
of reprisal, Israel and the United States would differ substantially on their
public attitudes to retaliatory measures in the two decades after the UN
Charter came into force.
Israel deemed reprisals a necessary and legitimate tool—even a moral
imperative—of its security policy, and its reprisal policy only became more
explicit over time. The Security Council generally condemned Israel’s
reprisal policy as inconsistent with the UN Charter’s prohibition on the
use of force, but some legal scholars have sought to reconcile it with the
right of self-defense. Yoram Dinstein, one of Israel’s leading international
lawyers, argues that “defensive armed reprisals” are a justified form of self-
defense, including against “a cluster of pin-prick assaults” that “form a dis-
tinctive pattern.” The key test according to Dinstein for an armed reprisal
being “defensive, and therefore lawful,” is that its motivation be “future-
oriented, and not limited to a desire to punish past transgressions.” The
crux of the issue, therefore, is “whether the unlawful use of force by the
other side is likely to repeat itself.”96 The logic of a lawful armed reprisal,
for Dinstein, must be anticipatory not retaliatory.
The United States also came to embrace both ideas—that a pattern of
“pin-prick assaults” could justify a significant response and that legitimate
force was anticipatory not retaliatory—but arrived at them via a differ-
ent pathway. The US government opposed reprisals for reasons of both
principle and national interest in the 1950s and regularly criticized Israel’s
reprisal operations. When Washington policymakers sought to rest the
American use of force against North Vietnam on a right of reprisal, the
Department of State Legal Adviser forced them to reconsider, in part by
referencing the earlier American position on Israel’s reprisal policy. But
Meeker did not similarly reference, and was probably unaware of, the
American rejection—most notably in the debates preceding UN Security
Council Resolution 101 on the Qibya raid—of Israel’s argument that the
whole pattern of prior incidents should be considered in determining the
legitimacy of any use of force. Instead he (and others) used a version of
that argument to justify significant and ongoing armed measures against
North Vietnam. Meeker did not explicitly extend his argument regarding
the pattern of North Vietnamese aggression to make a claim for the antici-
patory use of force—the idea is implicit in the concept of a “continuing”
armed attack. But in the years after the Vietnam War, the “accumulation
of events,” as Bowett coined the doctrine, would increasingly and more
explicitly be used to demonstrate future intent.97
Faced with sporadic terrorist attacks from the 1980s, the US government
did not make the argument—as it had in the mid-1960s regarding North
Vietnam—that these incidents amounted to a continuing “armed attack”

as specified in Article 51 of the UN Charter. Washington argued instead
that such state-based “armed attacks” were not the only provocation cov-
ered by the inherent right of self-defense (also specified in Article 51), and
that states could also respond with (proportional) force to individual acts
of terrorism. But to be an act of self-defense, rather than mere reprisal, the
recourse to force had to be intended to anticipate and prevent future terror
attacks rather than punish past ones. Given the reluctance of governments
to disclose classified information, the “accumulation of events” justification
therefore retained its importance as a means of signaling respect for interna-
tional rules and restraint.98 Even if the pattern itself is barely discernible—a
few measly points connected by dashed rather than solid lines—the idea of
the pattern can imply that another attack in the sequence is likely to occur
absent preventive measures. Playing on the assumption that past behavior is
the best predictor for future behavior, the “accumulation of events” doctrine
is now used to justify tat-to-forestall-tit operations such as the 2020 US air-
strike on Qassim Suleimani that for all the world look like reprisals but for
their proclaimed anticipatory rather than retaliatory motive.
NOTES
1. Eric Schmitt and Thomas Gibbons-Neff, “U.S. Carries Out Retaliatory

Strikes on Iranian-Backed Militia in Iraq,” New York Times, March 12, 2020, https://
www.nytimes.com/2020/03/12/world/middleeast/military-iran-iraq.html
2. Paul C. Ney (General Counsel, Department of Defense), “Legal Consider-
ations Related to the U.S. Air Strike Against Qassem Soleimani” (speech, BYU Law
School, Provo, UT, March 4, 2020), https://assets.documentcloud.org/documents
/6808252/DOD-GC-Speech-BYU-QS.pdf
3. There were some notable differences between the 2019–2020 and the 2021
cycles of violence, including the additional controversy about a possible US assas-
sination policy sparked in 2020 by targeting the high-profile Suleimani, and that
most of the February and June 2021 strikes took place on Syrian territory.
4. Helene Cooper and Eric Schmitt, “U.S. Airstrikes in Syria Target Iran-
Backed Militias That Rocketed American Troops in Iraq,” New York Times, Febru-
ary 25, 2021, https://www.nytimes.com/2021/02/26/us/politics/biden-syria-airstri
ke-iran.html
5. John Kirby, “Statement by the Department of Defense,” news release, June
27, 2021, https://www.defense.gov/News/Releases/Release/Article/2672875/stat
ement-by-the-department-of-defense/. See also United Nations Security Coun-
cil, “Letter dated 29 June 2021 from the Permanent Representative of the United
States of America to the United Nations addressed to the President of the Security
Council,” June 30, 2021, UN Doc. S/2021/614, Official Document System of the
United Nations, https://documents.un.org/prod/ods.nsf/home.xsp
6. Geoffrey Best, Humanity in Warfare (New York: Columbia University Press,

1980), 108.
7. See, respectively, Article 2(4), Article 42, and Article 51 of the United
Nations Charter, June 26, 1945 (entered into force October 24, 1945), https://www
.un.org/en/charter-united-nations/
8. Benny Morris, Israel’s Border Wars, 1949–1956: Arab Infiltration, Israeli Retali-
ation, and the Countdown to the Suez War (Oxford: Clarendon Press, 1993), v.
9. Jerusalem (S. Roger Tyler, Jr.) to State, Despatch 333, “Transmittal of
Article in Es-Sarih Entitled ‘Why Not Fight Infiltration,’” February 21, 1951, file
684a.85/2–2151, Department of State Central Decimal Files 1950–1954, Record
Group 59, National Archives, College Park, Maryland, United States.
10. Fred J. Khouri, The Arab-Israeli Dilemma, 3rd ed. (Syracuse: Syracuse Uni-
versity Press, 1985), 183; Naseer H. Aruri, Jordan: A Study in Political Development,
1921–1965 (The Hague: Martinus Nijhoff, 1972), 49–50.
11. Morris, Israel’s Border Wars, 412.
12. Morris, Israel’s Border Wars, 116–72; Fred J. Khouri, “The Policy of Retalia-
tion in Arab-Israeli Relations,” Middle East Journal 20, no. 4 (Autumn 1966): 439.
14. J. B. Glubb Pasha to unnamed correspondent, letter, February 8, 1951,
enclosure 1, Amman (John F. Rogers) to State, Despatch 189, “Deterioration of
Public Security on Jordanian- Israeli Armistice Line,” February 15, 1951, file
684a.85/2–1551, Department of State Central Decimal Files 1950–1954.
15. Morris, Israel’s Border Wars, 175–76, 192–93, 419.
16. Enclosure 1, Amman to State 189, February 15, 1951.
17. Cited in Tom Segev, A State At Any Cost: The Life of David Ben-Gurion, trans.
Haim Watzman (London: Head of Zeus, 2019), 508.
18. Enclosure, Amman (Andrew G. Lynch) to State, Despatch 165, “Arab Legion
Note on Jordan-Israel Border Relations, June 1952–October 1953,” November 7,
1953, file 684a.85/11–753, Department of State Central Decimal Files 1950–1954.
19. “A Note on Refugee Vagrancy,” February 11, 1953, enclosure, Amman
(Joseph C. Green) to State, Despatch 255, “Report by Glubb Pasha on Jordan-
Israel Border Infiltration,” March 2, 1953, file 684a.85/3–253, Department of State
Central Decimal Files 1950–1954.
20. Cited in Morris, Israel’s Border Wars, 176, 177.
21. Jerusalem (Tyler) to State, Telegram 91, January 29, 1953, file 684a.85/1–2953,
Department of State Central Decimal Files 1950–1954; Jerusalem (Tyler) to State,
Telegram 110, February 12, 1953, file 684a.85/2–1253, Department of State Cen-
tral Decimal Files 1950–1954.
22. Tel Aviv (Monnett B. Davis) to State, Telegram 1224, January 30, 1953, file
23. Tel Aviv (Davis) to State, Despatch 761, “Transmitting Text of Aide Mem-
oire on Israel-Jordan Border Relations,” February 16, 1953, file 684a.85/2–1653,
Department of State Central Decimal Files 1950–1954.
24. Tel Aviv (Davis) to State, Telegram 1348, February 20, 1953, file
25. Amman (Lynch) to State, Despatch 136, “Arab Legion Report on Qibya
Attack, October 14, 1953,” October 19, 1953, file 684a.85/10–1953, Department of
State Central Decimal Files 1950–1954. See also Morris, Israel’s Border Wars, 247.
26. Ze’ev Drory, Israel’s Reprisal Policy, 1953–1956: The Dynamics of Military
Retaliation (London: Frank Cass, 2005), 109–10.
27. Tel Aviv (Francis H. Russell) to State, Telegram 492, October 20, 1953, file
28. Tel Aviv (Russell) to State, Telegram 472, October 17, 1953, file
29. Jerusalem (Tyler) to State, Despatch 128, “Israel-Jordan Border Relations
(Jan 26–Feb 2),” February 3, 1953, file 684a.85/2–353, Department of State Cen-
tral Decimal Files 1950–1954; Jerusalem (Tyler) to State, Telegram 97, February 5,
1953, file 684a.85/2–553, Department of State Central Decimal Files 1950–1954.
30. Tel Aviv (Davis) to State, Telegram 1231, February 2, 1953, file 684a.85/2–253,
31. Tel Aviv (Davis) to State, Telegram 1247, February 5, 1953, file 684a.85/2–553,
32. Ashley S. Deeks, “‘Unwilling or Unable’: Toward a Normative Framework
for Extraterritorial Self-Defense,” Virginia Journal of International Law 52 (2012):
549. Israel’s cross-border raids of the 1950s are not listed.
33. Morris, Israel’s Border Wars, 28n4.
34. Jerusalem (Tyler) to State, Telegram 92, January 30, 1953, file 684a.85/1–3053,
35. Department of State, Memorandum of Conversation, “Alleged Jordan Bor-
der Violations,” June 12, 1953, file 684a.85/6–1253, Department of State Central
Decimal Files 1950–1954.
37. Tel Aviv to State 472, October 17, 1953.
38. Cited in Tel Aviv (Russell) to State, Telegram 497, October 21, 1953, file
39. Department of State, Memorandum of Conversation, “Israel’s Security
Situation; Israel’s Policy toward Water Development,” October 19, 1953, file
40. United Nations Security Council, Official Records, 637th Meeting, Novem-
ber 12, 1953, UN Doc. S/PV.637, pars. 57, 55, 64.
41. State to Amman, Telegram 206, November 10, 1953, file 330/11–1053,
Department of State Central Decimal Files 1950–1954; State to Beirut, Telegram
568, November 18, 1953, file 684a.85/11–1853, Department of State Central Deci-
mal Files 1950–1954.
42. United Nations Security Council, Resolution 101, November 24, 1953, UN
Doc. S/RES/101.
43. Before 1966 there were only 11 members of the Security Council—5 per-
manent members and 6 elected members.
44. New York (James J. Wadsworth) to State, Telegram 267, November 21, 1953,
file 684a.85/11–2153, Department of State Central Decimal Files 1950–1954.
45. State to Baghdad, Telegram 283, November 16, 1953, file 330/11–1453,
46. Cited in Morris, Israel’s Border Wars, 254.
47. Department of State, Memorandum of Conversation, “The Kibya Resolu-
tion in the Security Council,” November 24, 1953, file 330/11–2453, Department
of State Central Decimal Files 1950–1954.
48. Tel Aviv (Davis) to State, Telegram 644, December 2, 1953, file 330/12–253,
49. Jerusalem (Slator C. Blackiston, Jr.) to State, Despatch 123, “Jordan-Israel
Mixed Armistice Commission Consideration of Border Incidents During the
Month of December 1953,” January 7, 1954, file 684a.85/1–754, Department of
State Central Decimal Files 1950–1954.
50. United Nations Security Council, “Report by the Chief of Staff of the Truce
Supervision Organization to the Security Council Pursuant to the Council’s Reso-
lution of 24 November 1953,” March 1, 1954, UN Doc. S/3183.
51. Segev, A State At Any Cost, 518; see also Morris, Israel’s Border Wars, 235; cf.
Drory, Israel’s Reprisal Policy, 58.
52. Cited in Morris, Israel’s Border Wars, 173; Drory, Israel’s Reprisal Policy, 58.
53. Tel Aviv (Ivan B. White) to State, Telegram 1190, May 12, 1954, file
54. Drory, Israel’s Reprisal Policy, 53–58, 112, 135; Morris, Israel’s Border Wars,
236; Khouri, “The Policy of Retaliation in Arab-Israeli Relations,” 437.
55. Drory, Israel’s Reprisal Policy, 113, 115, 125.
56. Department of State, Memorandum of Conversation, “Mounting Tension
on the Israel-Jordan Border,” March 23, 1954, file 684a.85/3–2354, Department of
State Central Decimal Files 1950–1954.
57. Drory, Israel’s Reprisal Policy, 127; Jerusalem (Tyler) to State, Despatch 195,
“HJK-Israel Border Relations in March,” April 8, 1954, file 684a.85/4–854, Depart-
ment of State Central Decimal Files 1950–1954.
58. Tel Aviv (Russell) to State, Telegram 1016, April 2, 1954, file 684a.85/4–254,
Department of State Central Decimal Files 1950–1954; Tel Aviv (Russell) to State,
Telegram 1020, April 3, 1954, file 684a.85/4–354, Department of State Central
59. Derek Bowett, “Reprisals Involving Recourse to Armed Force,” American
Journal of International Law 66, no. 1 (1972): 11.
60. State to New York, Telegram 450, March 31, 1954, file 330/3–2954, Depart-
ment of State Central Decimal Files 1950–1954.
61. State to New York, Telegram 460, April 2, 1954, file 330/4–254, Department
of State Central Decimal Files 1950–1954.
62. United Nations Security Council, Official Records, 670th Meeting, May
4, 1954, UN Doc. S/PV.670, pars. 131, 134, 140, 141; cf. Jerusalem (Blackiston)
to State, Despatch 227, “Allegations of Israel UN Representative Concerning
HJK-Israel Border Relations and Pertinent UNTSO Statistics,” May 31, 1954, file
63. New York (Henry C. Lodge, Jr.) to State, Telegram 705, May 7, 1954, file
330/5–754, Department of State Central Decimal Files 1950–1954; State to New
York, Telegram 551, May 10, 1954, file 330/5–1054, Department of State Central
64. Morris, Israel’s Border Wars, 420, 312; Khouri, “The Policy of Retaliation in
Arab-Israeli Relations,” 440.
65. Morris, Israel’s Border Wars, 327, 327n13.
66. United Nations Security Council, Official Records, 696th Meeting, March
30, 1955, UN Doc. S/PV.696, par. 81.
67. United Nations Security Council, Resolution 106, March 29, 1955, UN
Doc. S/RES/106.
68. For a summary, see Bowett, “Reprisals Involving Recourse to Armed Force,”
5–6.
69. Morris, Israel’s Border Wars, 421, 403, 403n2.
70. United Nations General Assembly, Official Records, 562nd Plenary Meet-
ing (First Emergency Session), November 1–2, 1956, UN Doc. A/PV.562, pars.
115, 134, 145, 146.
71. United Nations General Assembly, Official Records, 562nd Plenary Meet-
ing (First Emergency Session), November 1–2, 1956, UN Doc. A/PV.562, par. 150.
72. Letter From the President’s Military Representative (Taylor) to the Presi-
dent, November 3, 1961, in Foreign Relations of the United States, 1961–1963, vol. 1,
Vietnam, 1961, ed. Ronald D. Landa and Charles S. Sampson (Washington, DC:
Government Printing Office, 1988), Doc. 210.
73. Perry L. Pickert, “American Attitudes Toward International Law as Reflected
in ‘The Pentagon Papers,’” in The Vietnam War and International Law, ed. Richard
A. Falk, vol. 4, The Concluding Phase (Princeton: Princeton University Press, 1976),
78.
74. Memorandum From the Legal Adviser (Chayes) to the Secretary of State,
November 16, 1961, in Foreign Relations of the United States, 1961–1963, vol. 1, Viet-
nam, 1961, Doc. 261.
75. Brian Cuddy, “Was It Legal for the U.S. to Bomb Cambodia?,” New York
Times, December 12, 2017, https://www.nytimes.com/2017/12/12/opinion/ameri
ca-cambodia-bomb.html
76. Memorandum From the Legal Adviser (Chayes) to the Secretary of State,
November 16, 1961.
77. United Nations Security Council, Official Record, 1141st Meeting, August
7, 1964, UN Doc. S/PV.1141, pars. 79, 83, 31.
78. Thomas C. Schelling, Arms and Influence (New Haven: Yale University
Press, 2008), 145. First published 1966.
79. “United States and South Vietnamese Forces Launch Retaliatory Attacks
Against North Viet-Nam,” Department of State Bulletin 52, no. 1339 (February 22,
1965): 238.
80. Consultative Council of the Lawyers Committee on American Policy
Towards Vietnam, Vietnam and International Law: The Illegality of United States Mili-
tary Involvement, rapporteur John H. E. Fried (Flanders, NJ: O’Hare Books, 1967),
53.
81. United Nations Security Council, “Letter dated 7 February 1965 from the
representative of the United States of America to the President of the Security
Council,” February 8, 1965, UN Doc. S/6174.
82. Leonard C. Meeker (State Department Legal Adviser) to McGeorge Bundy
(National Security Advisor), memorandum, “Legal Basis for United States and
South Vietnamese Air Strikes,” February 11, 1965, Doc. 214, Folder 4 (Vol. XXVIII,
2/9–19/65, Memos [2 of 2]), Box 13 [2 of 2], Vietnam Country File, National Secu-
rity File, Lyndon Baines Johnson Library, Austin, Texas.
83. Meeker, “Legal Basis for United States and South Vietnamese Air Strikes,”
February 11, 1965.
84. State to Saigon, Telegram 1602, December 9, 1965, Doc. 81, Folder 5 (Vol.
XLIII, 11/23–12/19/65, Cables [1 of 2]), Box 24, Vietnam Country File, National
Security File, LBJ Library. The distinction, of course, was not obvious to outside
observers. As Fred J. Khouri observes, US condemnations of Israel’s October 28,
1965, retaliatory assault on Lebanon were undermined by its Vietnam War policies:
“the Israelis were fully aware of the contradiction between Washington’s request
for restraint by Israel and America’s failure to employ any appreciable restraint in
her own actions in Vietnam, where the United States did not hesitate to employ the
weapon of retaliation. Consequently, American ability to influence Israel’s policies
towards the Arabs was greatly weakened.” Khouri, “The Policy of Retaliation in
Arab-Israeli Relations,” 450.
85. State to Saigon 1602, December 9, 1965.
86. Cited in Jacob Van Staaveren, Gradual Failure: The Air War Over North Viet-
nam, 1965–1966 (Washington, DC: Air Force History and Museums Program,
2002), 204.
87. United Nations Security Council, Official Records, 1140th Meeting, August
5, 1964, UN Doc. S/PV.1140, pars. 46, 44.
88. United Nations Security Council, Official Records, 1140th Meeting, August
5, 1964, UN Doc. S/PV.1140, pars. 47, 49.
89. UN Security Council, “Letter dated 7 February 1965 from the representa-
tive of the United States of America to the President of the Security Council,”
February 8, 1965.
90. Memorandum, “Legal Basis for United States Actions Against North Viet-
Nam,” n.d. [February 11, 1965], Doc. 214, Folder 4 (Vol. XXVIII, 2/9–19/65,
Memos [2 of 2]), Box 13 [2 of 2], Vietnam Country File, National Security File,
LBJ Library. This internal government memo was finalized on February 11. An
amended version of the same memo, dated March 8, was later made available to
Congress and the public. See the chapter by Madelaine Chiam and Brian Cuddy in
this volume for a discussion of the public debate regarding the March 8 memo.
91. Leonard C. Meeker, “The Legality of United States Participation in the
Defense of Viet-Nam,” Department of State Bulletin 54, no. 1396 (March 28, 1966):
475.
92. For the reference to “tempo,” see Leonard C. Meeker, “Viet-Nam and the
International Law of Self-Defense,” Department of State Bulletin 61, no. 1437 (Janu-
ary 9, 1967): 59.
93. Memorandum From the President’s Special Assistant for National Security
Affairs (Bundy) to President Johnson, February 7, 1965, in Foreign Relations of the
United States, 1964–1968, vol. 2, Vietnam, January–June 1965, ed. David C. Hum-
phrey, Ronald D. Landa, and Louis J. Smith (Washington, DC: Government Print-
ing Office, 1996), Doc. 84.
94. Yoram Dinstein, War, Aggression and Self-Defence (Cambridge: Grotius Pub-
lications, 1988), 224–25; Cuddy, “Was It Legal for the U.S. to Bomb Cambodia?”;
Norman Menachem Feder, “Reading the U.N. Charter Connotatively: Toward a
New Definition of Armed Attack,” New York University Journal of International Law
and Politics 19, no. 2 (Winter 1987): 395–96.
95. Cuddy, “Was It Legal for the U.S. to Bomb Cambodia?”; Mary Ellen
O’Connell, “Self-Defence, Pernicious Doctrines, Peremptory Norms,” in Self-
Defence against Non-State Actors, Mary Ellen O’Connell, Christian J. Tams, and
Dire Tladi (Cambridge: Cambridge University Press, 2019), 225; Ashley Deeks,
“‘Unwilling or Unable,’” 549; Dinstein, War, Aggression and Self-Defence, 225–29.
96. Dinstein, War, Aggression and Self-Defence, 211–12, 208; Feder, “Reading the
U.N. Charter Connotatively,” 414–17.
97. Bowett, “Reprisals Involving Recourse to Armed Force,” 5ff.
98. Christopher Greenwood, “International Law and the United States’ Air
Operation Against Libya,” West Virginia Law Review 89 (1987): 942, 954–56; cf.
O’Connell, “Self-Defence, Pernicious Doctrines, Peremptory Norms,” 223.
THREE
Public Discourses of International Law

US Debates on Military Intervention in Vietnam, 1965–67
Madelaine Chiam and Brian Cuddy
Between 1965 and 1967, a public debate took place in the United States
over the legality, under international law, of the US military intervention
in Vietnam. The participants in this debate were generally leading politi-
cal, professional, and academic figures, including State Department offi-
cials, a group called the Lawyers Committee on American Policy Towards
Vietnam, the American Bar Association (ABA), and scholars such as Rich-
ard Falk and John Norton Moore. The debate took place through a range
of forums, including legal memoranda released to the public by the State
Department and the Lawyers Committee, articles published in scholarly
journals such as the Yale Law Journal and popular outlets such as Dissent
magazine, and public and media statements by the various participants.
The fact of the debate, and the nature of its arguments, were given promi-
nence through government channels such as the Senate Foreign Relations
Committee, some of whose hearings were broadcast on television, and gar-
nered media coverage in newspapers such as the New York Times.
This chapter gives an account of this public debate with two aims.
The first is simply to bring the debate into contemporary academic and
public consciousness.1 There is a narrative in international law scholar-
ship that the public debates over the 2003 Iraq War were singular because
of the prominence of international legal argument in those debates.2 As
56
Public Discourses of International Law 57
Madelaine Chiam argues elsewhere, this narrative obscures the role that
international law played in a range of earlier public debates, including
the arguments described in this chapter over the legality of the US inter-
vention in Vietnam.3 The debates of the 1960s complicate the assump-
tion of “hiatus” that traditionally underpins accounts of international law
during the Cold War, and they unsettle the idea that international law
experienced a resurgence in the 1990s—an idea that came to its zenith
in the ways that international law was deployed in the Iraq War debates.4
Indeed, the active background role of the Lyndon B. Johnson administra-
tion in the Vietnam War debates suggests that some officials were wor-
ried about the capacity of the international legal arguments to undermine
the administration’s public positions on Vietnam. International law has a
history as a public and popular language, and this chapter is an account
of one part of that longer history.
The second aim of this chapter is to examine how the participants in
this public debate understood this public language of international law, and
what effect the public debate had on the subsequent trajectory of American
international law. What kinds of legal arguments did they make? What did
they seem to expect from their employment of legal argument? What can
we learn about international law from how it was used in these debates?
How did the public debate change the way international law operated in
the American context? We argue that the speakers in this chapter use inter-
national legal language variously as a public claim to limit government
action, as a language of government justification, and as a language of cri-
tique, of resistance and of solidarity. Some experts used international legal
language in an attempt to control exercises of political power, and others
dismissed these uses of international law as misguided or mere polemic.5
The public prominence of debates over the legality of the conflict sur-
prised some public commentators.
This chapter thus explores international legal arguments made in the
public sphere in these debates of 1965–67 by asking who used international
legal arguments, in what forums, and how those speakers characterized the
international legal language that they used. To do so, the chapter proceeds
as follows. The first part gives a chronological account of how the debate
unfolded—who spoke in the debate, when and where they spoke, and the
broad positioning of their argument. The second part examines the doctri-
nal arguments made by the participants—what were the legal arguments
supporting and contesting US actions in Vietnam? The third part exam-
ines the ways in which the participants in the debate characterized interna-
tional law—how did they understand the role of international law in public
debate and government decision-making, and how did their understanding

change as a result of their participation in the 1965–67 public debate over
the Vietnam War? While the chapter does explore the doctrinal arguments
in order to contextualize the debates, the focus is on understanding the
roles that international law played, and was perceived to be able to play, by
the actors in the public debates. We hold that approaching international
law as a public language, rather than merely a set of doctrines, generates
important understandings of law’s changing role in both international and
domestic affairs.
How the Debate Unfolded
The Johnson administration’s initial legal justification for its military inter-
vention in Vietnam was primarily intended for an international rather than
domestic audience. Washington’s first public defense of its sustained aerial
bombing campaign against North Vietnam, initiated in February 1965, was
prompted by the United Nations Charter’s requirement that UN members
notify the Security Council of any armed measures taken in self-defense.6
US ambassador to the United Nations Adlai Stevenson wrote to the coun-
cil’s president on February 7 denouncing not just the immediate prompt
for the American airstrikes but also North Vietnam’s “sustained attack for
more than six years across a frontier set by international agreement.” As
such, declared Stevenson, South Vietnamese and US actions were “a justi-
fied measure of self-defense.”7
After further US airstrikes on February 11, a memorandum was pre-
pared in the State Department’s Office of the Legal Adviser laying out in
more detail than Stevenson had the legal basis for the American actions.
This memo, prompted at least in part by press inquiries to the White
House on the subject,8 was intended to put a stop to the use of reprisal
rhetoric in the administration’s public statements in favor of the language
of self-defense.9 On March 8, an amended version of this short memo
was finalized for public release and sent abroad to all US diplomatic
posts. It was no doubt intended to support the case laid out in a State
Department white paper, “Aggression from the North: The Record of
North Viet-Nam’s Campaign to Conquer South Viet-Nam,” released two
weeks prior. While the legal memorandum was intended primarily for
international and diplomatic audiences—that is, foreign governments—
domestic audiences were not entirely forgotten. A copy of the March
1965 memo was also sent to the Senate Foreign Relations Committee,10
which duly published it in a June 1965 update of the committee’s docu-

mentary compilation on the war.11
Some readers were dissatisfied with the reasoning contained in the
March 1965 memorandum. “A careful reading of the document convinced
a group of American lawyers that our military involvement in Vietnam was
in violation of international law, including the United Nations Charter,”
wrote one of those lawyers, William Standard, leading to the organization
of the Lawyers Committee on American Policy Towards Vietnam and the
commencement of the domestic public debate over the legality of Wash-
ington’s actions in Vietnam.12 The small group of lawyers who collected
under the banner of the Lawyers Committee—“never more than ten or
twelve really active participants at one time,” recalled one of those active
members13— were mostly from private practice, engaging, in historian
Samuel Moyn’s words, in “a fully elite model of agitation.”14
Formed out of dissatisfaction with the State Department’s formal legal
justification for the war, the Lawyers Committee released their own mem-
orandum, “American Policy Vis-à-Vis Vietnam,” in September 1965, argu-
ing that US intervention in Vietnam was contrary to international law. The
memo was entered into the Congressional Record on September 23 by Sena-
tor Wayne Morse, Democrat of Oregon, on behalf of himself and Senator
Ernest Gruening, Democrat of Alaska.15 The drafting of the memorandum
was driven by two New York lawyers, Standard and Joseph Crown, respec-
tively chairman and secretary-treasurer of the Lawyers Committee.16 The
drafters of the memo do not appear to have been specialists in public inter-
national law as it relates to the use of force. Standard himself was an expert
in the law of the sea, but his legal practice in that field focused mostly on
maritime law. Crown was a tax lawyer. Prior to its publication, the memo
received the endorsement of several prominent American legal authorities,
none of whom were primarily international law experts.17 The intellectual
and professional origins of the Lawyers Committee and its approach, then,
lay less in the so-called invisible college of international lawyers than in
various traditions of the American legal profession, notably the National
Lawyers Guild (NLG) and the “world peace through law” movement.18
Although there was no formal connection between the Lawyers Com-
mittee and the NLG, many of the committee’s early members and sup-
porters were affiliated with the guild, a progressive association of lawyers
established in 1937 to counter the ABA’s conservative and anti-New Deal
orientation.19 Support for the Republicans during the Spanish Civil War was
a key (and divisive) issue within the NLG in its early years, and was also the
inspiration for the Lawyers Committee’s founders a quarter century later.
Taking as their model the Lawyers Committee on American Relations with

Spain, whose “unique contribution had been a hard-hitting memorandum
of law demonstrating the illegality and unwisdom of the embargo against
Loyalist Spain,” the new Lawyers Committee “paralleled this approach”
with their own memo on Vietnam.20 For Crown, the mode of legal activism
was not the only parallel. “In a fundamental historical sense, Vietnam was a
second Spain,” he wrote in 1976. “The birth of Republican Spain had been
strangled by Franco and his henchmen, Hitler and Mussolini. Independent
Vietnam was sought to be strangled by Diem the American puppet, sup-
ported by his sponsors, Presidents Kennedy and Johnson.”21
If the NLG and Lawyers Committee on American Relations with Spain
provided some of the professional networks and intellectual impetus for
the new Lawyers Committee, this genesis was not widely publicized. In an
effort to appeal to the wider profession, the Lawyers Committee instead
framed its contribution within the more mainstream peace through law
tradition of the American bar.22 Encompassing various strains of American
legalist thought since the late nineteenth century—including arbitration,
adjudication, and world federalism—the principal binding agent in the
peace through law tradition was a commitment to peaceful settlement of
international disputes. Indeed, the project of placing limits on the right of
states to use force was often understood as a quintessentially American proj-
ect. In 1958, Grenville Clark and Louis Sohn first published World Peace
through World Law. Around the same time, president of the ABA Charles
Rhyne pushed for the establishment of “Law Day,” World Peace through
Law conferences, and a World Rule of Law Center at Duke University
directed by Dwight Eisenhower’s former speechwriter, Arthur Larson.23
Not all lawyers understood the tradition in the same way, but in the years
before 1965 the American legal profession and its organized bar were com-
mitted to the idea of peace through law.
The Lawyers Committee targeted two main audiences. The first
was Washington policymakers and legislators, and the committee soon
formed a mutually supportive relationship with antiwar senators Morse
and Gruening, who had been the only two members of Congress to vote
against the Tonkin Gulf Resolution in August 1964. The second audience
was members of the American legal profession, whom they tried to enlist
as another means of pressuring decision-makers in Washington. After its
publication in the Congressional Record, reprints of the Lawyers Commit-
tee memorandum, endorsed by Morse and Gruening, were distributed to
173,000 lawyers and 3,750 law professors across the United States in an
attempt to rally the American legal profession to the antiwar cause. Only
700 lawyers signed on initially, but by January 1966 the Lawyers Com-
mittee counted 4,100 members.24
The outreach efforts of the Lawyers Committee also attracted some
attention from the Johnson administration. White House counsel, Harry
McPherson, was sufficiently concerned about the Lawyers Committee
memorandum that he arranged for a response to be prepared by a profes-
sor of law at the University of Texas, E. Ernest Goldstein,25 who drafted
a one-paragraph statement affirming the legality of American actions in
Vietnam. The Goldstein statement was ultimately signed or endorsed by
30 other professors of law, including Neill Alford of the University of Vir-
ginia, Myres McDougal of Yale University, Louis Sohn and Richard Baxter
of Harvard University, and William Bishop of the University of Michigan.
The statement was sent to the president in November 1965 and read into
the Congressional Record in January 1966 by Senator Russell Long, Dem-
ocrat of Louisiana.26 Beyond this flurry of activity from lawmakers, law
professors, and the White House, there was little attention given to the
Lawyers Committee memorandum in 1965.
The somewhat flippant dismissal of the Lawyers Committee memo-
randum proved unsustainable, however, as the public debate over the war’s
legality heated up in early 1966. In January of that year, the Lawyers Com-
mittee revived its campaign by sending a letter and the memorandum
to President Johnson. The timing of this new push allowed the Lawyers
Committee’s legal arguments against the war to gain more traction due to
their airing in the Senate during a debate over financing additional spend-
ing on the war. The Lawyers Committee memorandum thus acted as the
spur for a much longer and more public debate over the legalities of US
uses of force in Vietnam.
The Lawyers Committee memorandum became one basis of argument
for Morse and Gruening during speeches on the Senate floor and, espe-
cially, over the course of Senate Foreign Relations Committee hearings
that took place in January and February 1966.27 The senators drew on the
work of the Lawyers Committee to question Secretary of State Dean Rusk
in particular about the justifications for, and legality of, the US military
intervention in Vietnam. This public questioning gave the Lawyers Com-
mittee memorandum—which was printed as an appendix to the published
version of the committee hearings, as well as inserted twice into the Con-
gressional Record around the same time28—and the legal arguments more
generally both political momentum and public traction. Morse was blunt
in his appreciation of the legal factors, denouncing “this illegal war of ours
in Vietnam” and urging more attention be paid to “the great debate that is
going on among international lawyers.”29
On the final day of the hearings, Rusk declared that “the law officers of
the Government ought to be permitted to file a legal brief on these ques-
tions.”30 The following month, the State Department duly issued such a
brief. Much longer than the first memorandum of a year earlier, this sec-
ond attempt aimed to systematically rebut the Lawyers Committee memo-
randum while presenting more fully the administration’s position on the
legality of its Vietnam intervention. “For the first time in modern history
a Government had been compelled to ‘reply’ to a citizens’ ‘Brief’ that its
war activities were illegal,” wrote Crown in his short history of the Lawyers
Committee. “We had succeeded in projecting the illegality of the war onto
the national scene. No small feat for a Gideon’s Band!”31 The 1966 State
Department memorandum, “The Legality of United States Participation
in the Defense of Vietnam,” was submitted to the Senate Foreign Relations
Committee on March 8, 1966.32 It was also republished in both the Yale
Law Journal and the American Journal of International Law, two academic
journals that had continued to feature opposing views on the legality of US
actions in Vietnam. The 1966 memorandum differed from the first in that
it presented its arguments in far greater detail and contained significantly
more legal authority, in what appeared to be an attempt to match the form
and substance of the Lawyers Committee memorandum.
The 1966 State Department memorandum was also distinctive because
its authorship was explicitly attributed to Leonard C. Meeker, the State
Department legal adviser. The 1965 memorandum was released with
generic State Department authorship.33 Adjusting that practice and iden-
tifying Meeker—one of Rusk’s top “law officers of the Government”—as
the author of the 1966 State Department memorandum appears aimed at
matching the claims to expertise that underpinned the authorship of the
other legal statements by professors of international law. If the plausibility
of the Lawyers Committee memorandum’s arguments were bolstered by
the endorsement of professors of international law, then making explicit
Meeker’s role in the 1966 State Department memorandum provided a
counterpoint to that form of expertise and the arguments the Lawyers
Committee was making.
The Johnson administration also called again on the professors of inter-
national law who had participated in the Goldstein statement of November
1965. In an indication of the administration’s concern about the growing
visibility of the Lawyers Committee memorandum and its critique of the
legality of US policy on Vietnam, McPherson framed his 1966 request to

the professors carefully. “It would be desirable,” he wrote, “though not
essential, to reject the position expressed in the Lawyers’ Committee let-
ter.”34 This time, Alford and McDougal led the response, drafting an opin-
ion that was also signed by Bishop, Baxter, and Sohn. It was sent to the
president on February 14, 1966, and read into the Congressional Record on
February 23, 1966.35
The short opinion of the five professors affirmed and expanded upon
the Goldstein statement and rebutted key points made by the Lawyers
Committee to the president while expressly noting that the authors had
not, as a group, read the memorandum on which the Lawyers Committee
letter to the president was based. The five professors declared their shared
interest with the Lawyers Committee in “attaining world peace through
law” but differed from their fellow lawyers in suggesting that the Ameri-
can legal position regarding Vietnam was compatible with that goal. In
May 1966, again at the urging of the Johnson administration, this group
released a much longer brief outlining their position on the legality of US
actions in Vietnam, authored this time by two younger scholars, John Nor-
ton Moore and James Underwood, with the support of McDougal.36 This
brief was effectively a long rebuttal to the Lawyers Committee memoran-
dum, and it was distributed by the American Bar Association to all mem-
bers of Congress.37
The ABA’s role in prosecuting the Johnson administration’s case for
war in the public domain was not confined to the quasi-sponsorship and
distribution of Moore and Underwood’s brief. On February 21, 1966, the
House of Delegates of the ABA passed a unanimous resolution support-
ing the legality of US actions in Vietnam. “The position of the United
States in Vietnam is legal under international law, and is in accordance
with the Charter of the United Nations and the South East Asia Treaty,”
the resolution concluded.38 The resolution had been quietly encouraged
by the White House and jointly recommended by the ABA Standing
Committee on Peace and Law through United Nations and its Section
of International and Comparative Law.39 The ABA continued to publicly
support US actions in Vietnam through 1966 and to openly reject the
arguments of the Lawyers Committee. In May 1966, for example, Eber-
hard P. Deutsch, writing as the chair of the ABA Committee on Peace
and Law through United Nations, published a further defense of US
actions in Vietnam in the American Bar Association Journal.40 In his article,
Deutsch explicitly challenged the arguments of the Lawyers Committee
memorandum and accused the members of the Lawyers Committee of
taking an “emotional attitude opposed to United States policy” rather

than a position based “on law.”41
The fact and contents of this debate over the international legality of
US actions in Vietnam, which occurred primarily among lawyers, was cov-
ered as an ongoing news item in the New York Times.42 Articles included,
for example, a story on February 5, 1966, that described the Lawyers Com-
mittee memorandum as an example of where the “legality of the war in
Vietnam has been challenged by a group of lawyers.”43 In late February,
the Times reported on the ABA’s unanimous resolution, describing it as
“unusual in its rapidity” and “amount[ing] to support of the Administra-
tion’s Vietnam policy generally.”44 In early March, the Times included a
story on the Meeker memorandum, describing it as a “rebuttal” to Sena-
tor Morse and the Lawyers Committee and giving a succinct summary of
the memorandum’s contents.45 Five days after the Meeker memorandum
article, the Times headlined a story, “ABA Under Attack on Vietnam Stand,”
and quoted the Lawyers Committee leadership, Standard and Crown, as
calling the ABA resolution “a disservice to the bar” because it relied on “a
minuscule analysis consisting of a distorted excerpting of a few phrases out
of context, from Articles 51 and 52 of the United Nations Charter.”46
With the preponderance of American lawyers expressing support for
the legality of US actions in Vietnam, the Lawyers Committee and its sup-
porters continued to write and advocate individually and in groups for
their positions. Particularly notable was the establishment of the Consulta-
tive Council of the Lawyers Committee, consisting primarily of academic
specialists in international law rather than the nonspecialist private prac-
tice lawyers that mostly comprised the parent committee. In its mass mail-
out to the American legal profession in late 1965, the Lawyers Committee
had attracted endorsements for its memorandum from a number of promi-
nent international lawyers.47 In an effort to bolster both the legal authority
and the legal analysis of the Lawyers Committee in the face of the pro-
administration position, some of those same lawyers came together in 1966
to form the Consultative Council.
John H. E. Fried led the Consultative Council in drafting a lengthy
legal brief that systematically dissected and contested Meeker’s March
1966 Memorandum of Law. Published in 1967 as Vietnam and International
Law: The Illegality of United States Military Involvement, it was the Consulta-
tive Council’s primary contribution to the public debate over international
law and the Vietnam War.48 In a 1990 reissue of the Consultative Council’s
legal brief, Richard Falk, chairman of the Consultative Council, recalled
that Vietnam and International Law “was actively discussed in academic and
government circles” where it “lent credibility to the international law argu-

ment against the Vietnam policies.”49 But it had little wider appeal within
the United States. As historian Luke Stewart notes, “the book had diffi-
culty in finding a receptive audience in the national newspapers,” and so its
“chief contribution was to bolster the legal arguments in draft and military
resister cases.”50
Aside from the collective effort, individuals associated with the Con-
sultative Council independently promoted the antiwar position. Falk was
a particularly prominent critic, publishing in June 1966 two pieces that
responded to these events: one in Dissent magazine and one in the Yale Law
Journal.51 The American Journal of International Law published multiple
articles on the legal questions arising from the Vietnam conflict in 1966
and 1967, including two by John Norton Moore contesting the arguments
of illegality made by Falk, Quincy Wright, and others.
The muted reception of the Consultative Council’s legal brief is indica-
tive of how the public debate over international law changed from 1967
as the war progressed and the antiwar movement grew. Members of the
Lawyers Committee and the Consultative Council noticeably adjusted
their tactics. No longer appealing solely to political leaders, they now also
turned to supporting draft resisters and others arguing cases in Ameri-
can courts on the basis of the illegality and unconstitutionality of the US
war in Vietnam.52 Members of the Lawyers Committee also changed tack
rhetorically, becoming more willing to label American actions as crimi-
nal and demand Nuremberg-like accountability, following the lead of the
Europe-based Russell Tribunal.53 But to have an open mind on the Russell
Tribunal—widely condemned in the United States54—would only deepen
the isolation from their professional colleagues. In this later phase of their
work, the Lawyers Committee and the Consultative Council informed
more widely read antiwar books that made the case for criminal conduct
more explicitly, notably In the Name of America, sponsored by Clergy and
Laymen Concerned About Vietnam.55 But as the use of legal language
became more popularized—“a war crimes movement from below,” in Luke
Stewart’s phrasing56—the Lawyers Committee, and the elite-level debate
more generally, declined relative to its height in 1966.
While it never generated the popular appeal of the later antiwar pro-
tests, the 1965–67 public conversation on international legality still gener-
ated some astonishment among commentators. Reflecting on the debates
in 1969, scholar Jaro Mayda registered both surprise and dismay at the
ways in which the international legal arguments had played out in the pub-
lic domain. “Among the new dimensions which the strange and frustrating
warfare in Vietnam has projected into . . . government and society,” Mayda

wrote, “is the fierce public polemic about the legality or illegality of the
United States participation in the conflict.”57
The Terms of the Debate
The international legal debate revolved around two main issues: whether
the US intervention could be characterized as assisting South Vietnam
in collective self-defense against aggression from North Vietnam, and
whether the US action was justified as part of its treaty commitments under
either or both the Geneva Accords and the treaty creating the Southeast
Asia Treaty Organization (SEATO).
The US legal position at first centered only on the question of self-
defense. Rusk made this clear in a 1965 speech to the American Society
of International Law, where he described the US military action as “the
exercise of the right of collective self-defense under the United Nations
Charter.”58 The 1965 State Department memorandum similarly provided
justifications based only on collective self-defense. The four-page memo-
randum devoted two pages to setting out “The Facts,” which were based
on the February 1965 State Department white paper, “Aggression from
the North.” With this as its source document, the 1965 State Department
memorandum claimed—as a question of fact—that North Vietnam was
“carrying out a carefully conceived plan of aggression against the South.”59
The legal arguments were contained in the remaining two pages of the
memorandum. First, the memorandum argued that the aggression from
the North amounted to an armed attack in response to which South Viet-
nam could act in self-defense under Article 51 of the UN Charter. The
United States, the memorandum claimed, was acting on requests from
assistance from South Vietnam, and its actions were thus justified as the
collective defense of South Vietnam. In the discussion of self- defense
and armed attack, no mention was made of the Southeast Asia Collective
Defense Treaty or SEATO.
Second, the memorandum argued that North Vietnam had repeatedly
violated the 1954 Geneva Accords in a manner that amounted to a material
breach of treaty obligations. This breach then gave rise to South Vietnam’s
right to withhold compliance with parts of the Accords that “limit its ability
to protect its very existence.”60 That is, South Vietnam was justified in tak-
ing actions in its self-defense, including inviting assistance from the United
States, because North Vietnam had not complied with its obligations under
the Geneva Accords. The Geneva Accords had intended the division of
Vietnam to be temporary, but South Vietnam had long assumed de facto
statehood in American eyes—so much so that the international status of
North and South Vietnam as states within the international system did not
warrant any comment in this initial State Department memo. The memo
was careful not to refer to the North-South frontier as an international
border, however, instead labeling it “the internationally agreed demarca-
tion line of 1954 between North and South Viet-Nam.”61
The 1965 State Department memorandum included no supporting
legal authorities for either of its arguments. The interpretations of the UN
Charter and of treaty law on which the memorandum relied were presented
as clear and uncontested. Further, the brevity of the memorandum suggests
a State Department that was confident that the reasoning included in the
memorandum was sufficient for the purposes of both public and political
justification. This is, in many ways, unsurprising. As John Norton Moore
noted after the release of the Pentagon Papers, the “Realpolitik planning”
and “contemporary decision theory” favored by successive US administra-
tions had created a national security process that was “poorly structured to
take international-legal considerations into account.”62 It seems unlikely
that Rusk, the lawyers in the State Department, or any others expected
the legal issues around US military action in Vietnam to become an espe-
cially prominent part of public debate. Mayda’s observation above about
the “public polemic on legality” being a “new dimension” in the debate
underscores this expectation.
That international law featured in the public debate about Vietnam
seems largely a consequence of the second push made by the Lawyers
Committee in early 1966, and the momentum given it by the Senate For-
eign Relations Committee hearings and related publicity. In contrast to
its reception in September 1965, the Lawyers Committee memorandum
began to be more closely read (and critiqued) from early 1966. More densely
written and comprehensively referenced than the 1965 State Department
memo, the Lawyers Committee memorandum provided significant fodder
for specialist international lawyers once they turned their attention it.
The departure point for the Lawyers Committee was not Southeast
Asia but the Middle East—namely the breach by Israel, France, and the
United Kingdom of their UN Charter commitments in the Suez Crisis
of 1956, and the US position upholding the role of the United Nations
in securing peace in the region and around the world. In both rejecting
the justification offered by Israel for its advance into Egypt—the need to
eliminate Fedayeen bases in the Sinai Peninsula—and praising the American
stand against its own allies, the Lawyers Committee established the Second
Arab-Israeli War as something of a legal and policy baseline from which to
assess American actions in Vietnam.
The memorandum then rebutted the State Department arguments
about collective self-defense on two bases. First, the Lawyers Committee
adopted a strict reading of the Charter requirement that self-defense was
justified only after an “armed attack” had occurred.63 The Lawyers Commit-
tee briefly asserted that the American claim of North Vietnamese aggres-
sion against South Vietnam—a claim central to the 1965 State Department
memorandum—failed to reach the threshold of armed attack as implied by
this strict reading of Article 51, writing at one point that “the infiltrations
from North Vietnam cannot be deemed to constitute an ‘armed attack’
within the purview of Article 51.”64 But no further explanation was given as
to why the infiltrations did not meet the standard and, as a result, why the
State Department’s position on armed attack was problematic.
The Lawyers Committee most likely spent so little time parsing
whether the actions of North Vietnam amounted to an armed attack on
South Vietnam because, for the memo’s drafters, the nature of the attack
was secondary to the status (or lack thereof) of North and South Viet-
nam. If no such separate legal entities existed, in the Lawyers Committee’s
logic, no cross-border armed attack in the sense of Article 51 could have
occurred. The Lawyers Committee argued that under the Geneva Accords
of 1954, North and South Vietnam were a single state, albeit temporarily
partitioned. The conflict between the two regimes was thus “civil strife,”
meaning “foreign intervention is forbidden, because civil strife is a domes-
tic question—a position insisted upon by the United States in its civil war
of 1861.”65 With no international conflict in existence, Article 51 could not
be triggered. North Vietnamese actions “cannot be considered an armed
attack by one nation on another.”66 Moreover, South Vietnam was not a
member of the United Nations—a prerequisite for the operation of Article
51, according to the Lawyers Committee.67 This argument that the war in
Vietnam was a civil, not an international, war also offered a repudiation
of the “material breach” of a treaty argument that the State Department
had presented in its first memorandum in relation to the Geneva Accords.
“The United States is in fact a foreign nation vis-à-vis Vietnam,” stated the
Lawyers Committee; “North Vietnam is not.”68
In a further critique of Washington’s understanding of the law of self-
defense, the Lawyers Committee argued that “the right of collective self-
defense under Article 51 presupposes that the nations invoking such right
are properly members of a regional collective security system within the
purview of the United Nations Charter.” The Lawyers Committee memo-

randum rejected the argument that the collection of disparately located
members of SEATO could act as a regional defense arrangement. “If arti-
fices like SEATO were sanctioned,” the memorandum stated, “the path
would be open for the emasculation of the United Nations organization
and the world system of international security assiduously developed to
prevent the scourge of war.”69
Even if SEATO could somehow act legitimately under Article 51 (col-
lective self-defense) and Article 53 (regional organizations) of the UN
Charter, the Lawyers Committee further argued, the Manila Pact itself
did not allow the United States to defend South Vietnam because “our
right to intervene is limited . . . by the requirement for unanimity among
all eight of the treaty nations.”70 This directly contradicted the US govern-
ment position—that the United States had an obligation to defend South
Vietnam under SEATO, which it could exercise unilaterally. Rusk made
this argument, for example, in his February 18 appearance before the Sen-
ate Foreign Relations Committee, where he stated that the United States
had sent troops because South Vietnam had, “under the language of the
SEATO Treaty, been the victim of aggression by means of armed attack.”71
The second State Department memorandum, formally issued by Leon-
ard Meeker as the department’s legal adviser, echoed the arguments from
the 1965 memorandum but presented them in far greater depth and with
more detailed legal authority. For example, the memorandum repeated the
arguments that the United States was justified in acting in collective self-
defense to protect South Vietnam, but this time it specified the extent of the
infiltration that it argued amounted to an “armed attack” by North Viet-
nam.72 Meeker further expanded on the administration’s arguments with
regard to the applicability of the right of self-defense. This inherent right
was not, argued Meeker, limited to members of the United Nations or to
regional organizations. Moreover, the right applied regardless of whether
or not South Vietnam was formally an independent sovereign state.73
The Meeker memorandum also provided detailed justifications for
the administration’s claims that its actions were justified under SEATO.
According to Meeker, the American interpretation that SEATO authorized
members to act unilaterally, rather than collectively, to protect other states
under the treaty was accepted by the other SEATO member states.74 It is
clear from the events surrounding the release of the Meeker memorandum
that these arguments were crafted in such detail in order to rebut specifi-
cally the arguments raised by the Lawyers Committee.
The other key contributions to the public debate on international law
were also designed to rebuff the advocacy of the Lawyers Committee and,
to the extent that they relied on the Lawyers Committee memorandum,
Senators Morse and Gruening. The letter from the five international law
professors of February 1966, for example, described the Lawyers Commit-
tee memorandum as containing “such egregious errors that we consider
necessary an immediate refutation of the most significant of these.” The
professors argued that the Lawyers Committee had adopted an “excessively
narrow” construction of Article 51 of the UN Charter and had effectively
ignored the wide scope given to UN members to exercise a collective right
of self-defense when invited by another state. South Vietnam, the authors
argued, had been widely recognized as a state and the United States could
thus exercise collective self-defense on its behalf, either as part of its inher-
ent right protected under Article 51 or as part of the SEATO treaty.75 The
ABA’s position was best summarized by Deutsch’s May 1966 article in the
ABA Journal. In that piece, Deutsch provided an account of the separation
of North and South Vietnam under the Geneva Accords, described the
history of the SEATO Treaty and characterized North Vietnam as having
“violated continuously” the Geneva Accords and committed ongoing acts
of aggression against South Vietnam.76
From around mid- 1966, as academic specialists began to write at
much greater length about the international law questions involved in
America’s war in Vietnam, the terms of the doctrinal debate shifted. Both
pro-administration and antiwar writers were now willing to critique their
own side’s earlier arguments from late 1965 and early 1966. Moore and
Underwood’s book- length response to the Lawyers Committee barely
mentioned Meeker’s memorandum. Studied neglect of the administration
position turned into more open criticism in early 1967, as Moore expressed
some concerns about the State Department view on North Vietnamese
aggression. For Moore, “the White Paper model of ‘aggression from the
North’ . . . never captured the complex reality of the Viet Nam problem.”77
Falk likewise distanced himself from the doctrinal arguments of his
antiwar allies. Implying significant weaknesses in the Lawyers Committee
analysis—analysis that he had signed onto in late 1965 “with alacrity,” and
that had his public endorsement78—Falk wrote in his 1966 Yale Law Jour-
nal article that it was “persuasive but trivial” for Meeker “to demonstrate
that international law recognizes the right of individual and collective self-
defense against an armed attack; that nonmembers of the United Nations
enjoy the same rights of self-defense as do members; that South Viet Nam
is a political entity entitled to claim the right of self-defense despite its
origin as a ‘temporary zone’; and that the right of collective self-defense
may be exercised independent of a regional arrangement organized under

Chapter VIII of the United Nations Charter.”79 The crux of the doctrinal
question for Falk—armed attack—had been given short shrift by the Law-
yers Committee, and so he quietly dismissed the majority of the commit-
tee’s original legal analysis.
As the debate shifted from the halls of Congress and ABA gatherings
to academic journals, the tone also changed from New York law firm
to New Haven seminar room.80 While the Consultative Council’s legal
brief proceeded along fairly conventional lines of doctrinal argument,
other legal scholars took the debate, at least in their own minds, to a
more sophisticated level—beyond “formalistic,” “legalistic,” and “trivial”
points (Falk’s words) and arguments “legalistic in the extreme” (Moore’s
words).81 The doctrinal disagreements became subsumed within a policy-
oriented legal vernacular of “requirements of world order” and “principal
community values.”82
The New Haven-style discussions of authority, control, values, and
order eventually led to Falk editing a four-volume series, The Vietnam War
and International Law, that reprinted key parts of the academic and pub-
lic debate, including the Falk-Moore exchange in the Yale Law Journal.
Moore then did the same for the Middle East, editing multiple volumes of
The Arab-Israeli Conflict. As Moore wrote in a related study, “The Vietnam
War and International Law and The Arab-Israeli Conflict bring together the
principal readings and documents on the legal aspects of two of the major
world-order issues of our time, both of which have mixed features of inter-
nal and international conflict.”83
A significant share of The Arab-Israeli Conflict was devoted to the Third
Arab-Israeli War (or Six-Day War) of June 1967. Moore was a supporter
of the idea that Israel acted legitimately in self-defense in 1967.84 Falk,
too, came around to the view “that Israel was entitled to strike first in June
of 1967, so menacing and imminent was the threat of aggression being
mounted against her.”85 The 1967 war and subsequent Israeli reprisal raids
became another important setting, alongside the Vietnam War, for build-
ing schemas regarding the legitimate use of force. To his (initially) tripar-
tite model of intervention developed for the Vietnam War,86 Falk added a
12-point framework for assessing claims to use retaliatory force based on
Israel’s late 1968 attack on Beirut International Airport.87 Moore developed
a typology of intervention that incorporated 22 categories upon which to
assess the initiation of hostilities.88 If the elite-level public debate of 1965–
67 began with the Lawyers Committee setting one Middle East conflict—
the Suez Crisis—as a baseline for assessing the legality of the Vietnam War,
it ended as legal scholars turned to another Middle East conflict—the 1967

war and its aftermath—to determine how and when to shift that baseline.
The Characterizations of International Law
Legality seemed to matter in the debate of 1965 to 1967, at least to the

members of the Lawyers Committee, some in the State Department and
the Senate, some members of the American legal profession, and perhaps
even to some members of the wider public. Unlike later Vietnam War
debates, this debate was not an example of “ordinary people” deploying
international legal language as a means to speak to those in power. It was
rather an example of already powerful members of an elite class of lawyers
attempting to influence American policy by using international law in the
public sphere. Nevertheless, the debate had an impact, not least in prompt-
ing important changes in the way the American legal profession engaged
with questions of US national security and foreign policy.
The key players in the public debate of 1965–67 explicitly engaged in
the debate as legal professionals and experts. The Lawyers Committee
memorandum implored its audience to take the authors’ arguments seri-
ously because of who they were. “[W]e, as lawyers,” they wrote, “have been
compelled to reach [this conclusion]. We, as lawyers, urge our President to
accept the obligations for international behavior placed upon us by our
signature on the United Nations Charter.”89
For the Lawyers Committee, international law offered both a way to
critique the Vietnam policies of the Johnson administration and a model
for how better to address the situation. Framing the Vietnam War as “ille-
gal” allowed the Lawyers Committee to harness what they characterized
as the power of an international law that was both transcendent (designed
to “banish from the earth the ‘scourge of war’”) and standard-setting (“the
rule of law”). By emphasizing that it was lawyers authoring the memo-
randum, the Lawyers Committee called on professional expertise to add
weight to their claims.
The responders to the Lawyers Committee memorandum also relied
on their professional expertise as lawyers, but they crafted this expertise in
slightly different ways. The first shift was that all the responses—the ABA’s
and all the permutations of the pro-administration groups—made much of
the numbers of legal professionals who supported their views: “thirty-one
professors of international law” had supported the Goldstein statement;
the ABA resolution had been “adopted unanimously.”90 The majority of
legal opinion in the United States sided with the Johnson administration
and, in a field where there is no authoritative arbiter of international legal-
ity, the preponderance of professional opinion can carry significant weight.
It mattered, in this sense, that the individuals who considered US policy
on Vietnam to be consistent with international law were experts in inter-
national law. And here the second shift in the presentation of expertise
becomes relevant.
It is significant that the authors of both the Goldstein statement and
the opinion of the five international law professors described themselves as
“teachers of international law.”91 In his work on expertise in international
law, David Kennedy makes the case that “[a]rguments about who is and
is not within the discipline, whose arguments are and are not plausible,
or what expert work has what consequences in the world are all part of
expert practice.”92 The Lawyers Committee had described themselves as
“lawyers” as a way to establish their credentials, albeit as generalists rather
than specialists. One way to combat the arguments of the Lawyers Com-
mittee was to combat the expertise of the people who wrote the memo-
randum. For the field of international law, generalist lawyers do not have
the knowledge or authority of specialists, and in all manifestations the pro-
administration group’s statements were couched as the views of experts in
international law. Similar motivations no doubt spurred the Consultative
Council of the Lawyers Committee, which included significant figures of
international law academia such as Richard Falk and Quincy Wright, to
prepare their own legal brief over and above the original Lawyers Com-
mittee memorandum. Joseph Crown admitted as much, writing that “the
refutation of the State Department’s rebuttal memorandum, at certain
points, called for sophisticated expertise in the field of International Law,”
with the establishment of the Consultative Council leading to “a qualita-
tive enhancement” of the Lawyers Committee’s “capability.”93
Perceptions of authority and expertise also drove the administration’s
response to the Lawyers Committee. The perceived need to undermine
the claim of the Lawyers Committee to authority during the public debate
of 1965–67 helps to explain the shift in the State Department approach
from releasing a general, unattributed memorandum in 1965, to releasing
a second memorandum in 1966 explicitly attributed to Leonard Meeker,
who enjoyed significant professional standing as the State Department
legal adviser. The explicit attributions of Meeker’s authorship sought to
assert that the administration’s view of the law must have been superior
precisely because it was Meeker who developed that view. The two State
Department memos point also to a shift in the Johnson administration’s
view of the importance of international legality. The 1965 memorandum

came across as perfunctory. The administration was forced into releasing
the 1966 Meeker memorandum to rebut the arguments made by the Law-
yers Committee memorandum. This sequence suggests an administration
for whom international law was an afterthought—a nuisance to be man-
aged rather than standards to be taken into account from the outset.
But the events of the public debate suggest that the role of international
legal argument, at least as a public language, was more potent than the
Johnson administration anticipated. It is in many ways remarkable that the
Lawyers Committee memorandum gained public and political traction in
the first place. Senators Morse and Gruening placed the legal arguments at
the center of their opposition to US policy on Vietnam, and once Rusk was
questioned on this basis in the widely broadcast Senate Foreign Relations
Committee hearings, the legal arguments became impossible to dismiss
without a response. International law had enough public valence in 1965–
1967 that the Johnson administration made multiple attempts to generate
opinions that supported its policy and opposed the Lawyers Committee
position. The Johnson administration did not want its intervention in Viet-
nam to be portrayed, or to be able to be portrayed, as contrary to interna-
tional law. Washington’s sensitivity to legal criticism exhibited in the public
debate of 1965–67 at least partly explains subsequent government efforts
to better perform its “duty to explain.”94
Commitment to law mattered not only in the production of the vari-
ous legal opinions in the 1965–67 debate but also in the expected recep-
tion to arguments framed in terms of law. Implicit in the Lawyers Com-
mittee memorandum was the belief that exercises of government power
could be restrained by law in the United States, and even though drafted
by generalists rather than specialists, the memorandum wielded its inter-
national legal arguments in the conviction they would be taken seriously.
Sometimes, however, the confident tone of the legal arguments slipped,
and the wording of the memorandum indicated a concern that the Johnson
administration would not take seriously its international legal obligations.
The second paragraph of the memorandum, for example, reads as almost
an apologia for the Lawyers Committee advocacy:
Observance of the rule of law is a basic tenet of American democ-

racy. Hence it is fitting that American lawyers examine the action
pursued by our Government to determine whether our Govern-
ment’s conduct is justified under the rule of law mandated by the
United Nations Charter—a Charter adopted to banish from the
earth the “scourge of war.”95
Even though the members of the Lawyers Committee were in the

minority of American lawyers regarding the Vietnam War, and were gen-
erally aligned with the NLG rather than the conservative mainstream of
the American legal profession, they nonetheless fell within that profes-
sion’s strong tradition of equating the rule of law in world affairs with the
peaceful settlement of disputes and, since 1945, specifically with the UN
Charter. Indeed, both sides of the 1965–67 debate claimed links to various
strands of the American “world peace through law” tradition that was the
most prominent expression of the organized bar’s commitment to the rule
of law in world affairs in the two decades after World War II.
If the peace through law tradition—of whichever stripe—was the pri-
mary intellectual site of public debate among lawyers in the early years of
heavy American involvement in the war, the debate, and the war more gen-
erally, also effectively helped to eclipse that tradition within the American
legal profession. Arthur Larson’s World Rule of Law Center at Duke Uni-
versity “increasingly became a casualty of the Vietnam War,” notes Larson’s
biographer, and “the grant money that had sustained the Rule of Law Cen-
ter’s personnel and programs gradually dried up during the second half of
the 1960s.”96 The ABA’s Standing Committee on Peace and Law through
United Nations, which was a locus of the 1965–67 public debate, similarly
declined.
The American world peace through law tradition may have declined as
a result of the Vietnam War, but the American legal profession’s ideological
commitment to the “rule of law” did not. It remained constant throughout
and after the war. The expression of that commitment did change, however,
which in turn hinted at deeper shifts in American understandings of its
role vis-à-vis law in the world. The American turn to human rights was the
major manifestation of this change coming out of the Vietnam War,97 but it
was not the only one. The rise of the field of “national security law,” which
can be traced in important ways to the public debate over the legality of
America’s involvement in Indochina, was also emblematic of the new ways
in which the United States sought to pursue its understanding of the rule
of law in international affairs after the Vietnam War.98
The origins of the field of national security law have not been compre-
hensively traced. “The lineage is murky, there is still no published intel-
lectual history, and there is no general template for field evolution,” note
three lawyers closely associated with the field.99 The rise of national secu-
rity law can be partly explained by generational change, as an international
law community strongly influenced by foreign-language speaking Euro-
pean refugees and the experience of World War II was steadily replaced
by a more monolingual community driven to promote narrower American
interests.100 But the beginnings of national security law can also be clearly
traced to the public debate over the legality of the Vietnam War. Several of
the protagonists of the 1965–67 debate were at the forefront of the devel-
opment of this new field of law, including John Norton Moore and the
American Bar Association.
In the wake of the Pentagon Papers release, Moore expressed his dis-
quiet at how Washington’s Vietnam War decision-making process did not
take international legal considerations into account. He followed this up
by writing a key intervention on the subject in the establishment jour-
nal Foreign Affairs just as Washington was finalizing its exit from Vietnam.
More attention to law in policymaking would make for well-implemented
and appropriately justified policy, argued Moore, while avoiding the high
costs of failing to take law into account during the policy process. But just
as important, for Moore, was the potential of law to formulate “a coher-
ent and intellectually powerful foreign policy” for the United States “to
recoup its leadership” after the Vietnam War. A renewed commitment to
the idea of law could help combat “the present neo-isolationist tendencies
within the United States” and “revive domestic support for a more active
international policy.”101
In support of this more active, law- based foreign policy approach,
Moore later set up the nation’s first university institute dedicated to national
security law; coauthored a case book, National Security Law; and contrib-
uted to the field’s establishment and growth in the American legal profes-
sion through the American Bar Association’s Standing Committee on Law
and National Security. First established in 1962 as the ABA Committee
on Education about Communism, and renamed by Moore in 1978,102 the
ABA Standing Committee on Law and National Security quickly became
the organized bar’s focal point for the emerging field of practice.103 In its
early days, the committee was chaired by Morris Leibman, one of the lesser
Wise Men of the post-World War II Democratic foreign policy establish-
ment. According to longtime director of the committee, Holly McMahon,
Leibman “appreciated the importance of integrating the rule of law and
lawyers into the national security process.”104 He was also, according to
Johnson administration aide Chester Cooper, “instrumental in pushing . . .
through” the ABA resolution of February 1966 supporting the administra-
tion’s position on the legality of the Vietnam War.105 The link between the
public debate of 1965–67 and the rise of national security law, then, is quite
direct. In Moore’s own words, the debate over the legality of US involve-
ment in Vietnam “was really the starting point of my involvement in what
became national security law.”106
The lesson Moore’s protagonist in the public debate of 1965–1967,

Richard Falk, took from the debate was that citizens needed to be better
organized to hold their government to account. In 1967, Falk labelled the
Consultative Council of the Lawyers Committee’s legal brief a “citizens’
white paper” that might help “avoid future Vietnams,”107 and the debate
over the war was central to Falk’s own journey of, as he calls it, “engaged
citizenship.”108
Falk’s journey began and ended in very different places. During the
public debate of 1965–67, he recollected more than 50 years later, “my
work still fell within the mainstream liberal paradigm of legitimate debate
on controversial issues.” He received no pushback for his role as academic
critic of US policy and was a sought-after speaker, including for war col-
leges, congressional committees, and judicial proceedings. At this stage in
his career, Falk still felt “reasonably comfortable situated at this interface
between the organized bar of practicing lawyers and the academic world.”109
Falk’s “willingness to respect the boundaries of liberal dissent” changed in
the middle of 1968 as a result of a visit to North Vietnam, which made “a
permanent impact on my moral, legal, and spiritual consciousness.”110 It
also affected how others in the legal profession perceived him, altering
his “prior identity as a respected international law critic.” As Falk recalls
it, “the trip, highly publicized, made me, if not a pariah, at least situated
on the far left, and no longer a promising, and more importantly, reliable
young scholar with top echelon public service potential.”111
Falk’s departure from the American legal profession’s mainstream was
also precipitated by his increased willingness to take his understanding of
the Vietnam War as illegal to its logical but unwelcome conclusion: that
US political leaders and military commanders were criminally liable for
their choices regarding the Vietnam War. Other lawyers, notably Telford
Taylor, also gestured toward this argument.112 But while Taylor “stretched
his liberalism to the limit,” he did not break with it as Falk did, preferring
ultimately to condemn American policy as ill-judged rather than crimi-
nal.113 Of course, the value of “Nuremberg thinking,” as Falk came to call
it, had more to do with activism than correct legal doctrine. The Lawyers
Committee’s turn toward the courts from 1967 had, for Falk, given rise
to a political reform project that sought an acknowledgment “that every
U.S. citizen has a constitutional right to a lawful foreign policy that can be
tested by independent inquiry in a domestic court.”114
Falk’s visit to Vietnam in 1968 also crystalized another change in his
approach to the Vietnam War. While much of his work, both before and
after his break with mainstream American liberalism, was concerned with
citizenship and government in the United States, he also came to identify

much more strongly with the Vietnamese struggle for self-determination.
This then extended after the war to a broader appreciation of, and solidar-
ity with, non-American and anticolonial perspectives on international law
and politics.115 Falk suggests a common theme between the legal position
of the Lawyers Committee during the Vietnam War and the Nicaragua
judgment of 1986, whereby the International Court of Justice “repudiated
a similar legal argument” to the one the United States had relied upon 20
years earlier to defend its actions in Vietnam.116 “One of the solid successes
of the Lawyers Committee and the use of international law by the peace
movement in the years of the Vietnam War,” wrote Falk in his foreword
to the 1990 reissue of the Consultative Council’s legal brief, “was to chal-
lenge the earlier notion that international law was part of the repressive
side of world politics, consisting of rules and procedures made by and for
the rich and powerful.” Likewise, for Falk, “the Nicaragua judgment by the
World Court was a watershed pedagogic event, teaching citizens through-
out the Third World that international law fairly construed was often on
their side.”117
Falk’s break with the mainstream American international law com-
munity as a result of the Vietnam War was epitomized by his intellectual
trajectory regarding the Middle East conflicts. Whereas Falk initially
expressed support for the idea that Israel acted legitimately in anticipa-
tory self-defense at the outset of the Six-Day War, a reassessment of the
facts of 1967 led him to label Israel’s actions “a war of aggression,”118 and
his growing identification with self-determination movements around the
world saw him become a vocal critic of Israel’s actions regarding the Pal-
estinian people and their territory. Further isolation followed, notes Falk,
“when playing a public role as Israeli critic and supporter of the Palestinian
struggle for a just and sustainable peace . . . was deemed to have crossed
a substantive red line.” In Falk’s words, the “personal abuse” he received
for his stated views on the Middle East “reached its climax” from 2008 to
2014, when he served as United Nations Special Rapporteur for Palestine
Human Rights on behalf of the UN Human Rights Council.119
As with Falk, John Norton Moore’s continued work of public engage-
ment on questions of international law after the Vietnam War debate of
1965–67 led to grappling with the politics and law of the Middle East
conflicts. Moore warned readers of his edited collection, The Arab-Israeli
Conflict, that the multiple perspectives portrayed in the volumes needed
to be carefully compared.120 Warning against basing any conclusions on
“history alone” or an “automatic majority” in United Nations bodies,121
Moore instead steered readers toward the UN Charter as “the most impor-
tant source of legal rights and duties in appraising the conflict.”122 Moore
implies that, when properly interpreted, the Charter can provide protec-
tion for the interests of those, such as the United States and Israel, now in a
minority position within the international system’s deliberative and judicial
bodies. In 2017, 50 years after the public debate over the legality of the
Vietnam War, Moore suggested that the legal interpretation he developed
during that debate “has stood the test of time well,” presumably includ-
ing its deployment regarding the Middle East conflicts.123 He is currently
working with the Israeli international lawyer Yoram Dinstein on a manual
on the law concerning the use of force and self-defense to, in his words,
“help in restoring sanity” to that area of international law “by a return to
accurate, correct, classic international law.”124 Once published, the manual
will be a testament both to the enduring significance of the 1965–67 public
debate over the legality of US actions in Vietnam and to that debate’s con-
nection to the conflicts in the Middle East.
Conclusion
The debate of 1965–67 was not insignificant for the development of inter-
national legal doctrine, particularly in terms of American interpretations
of the UN Charter. But international law is not merely a set of doctrines.
It is also a public language, its power and purpose often claimed to rely in
part on public opinion. The debate over US intervention in Vietnam was
particularly important, then, for its public nature—public in terms of its
participants, its venues, and its legacies.
The public debate of 1965–67 had some effect on the US government
and its consideration of international law in the context of national secu-
rity policymaking. A position where the US government was relatively dis-
missive of international law fits with the narrative of exceptionalism that
successive US governments have maintained. But the story of that excep-
tionalism is not a neat one, and the events of the public debate of 1965–67
make that story at least a little bit messier. Washington cared enough about
international law—or at least the consequences of being perceived as a law-
breaker—to mobilize supporters to oppose the arguments of antiwar law-
yers. It took from the debate, too, a renewed appreciation for the impor-
tance of public presentation in the development of its legal justifications.
The debate had an even more noticeable effect on the American legal
profession’s approach to international law. Unlike the more popular, or
vernacular, use of international law rhetoric by the antiwar movement from

1967, the 1965–67 debate centered lawyers consciously acting in their pro-
fessional capacity. As such, they were also acting as gatekeepers: first as
generalists regarding the American tradition of peace through law in inter-
national affairs, then as specialists regarding the discipline of international
law. Different lawyers took different lessons from the debate and moved
along divergent pathways after 1967—some toward more solidarity with
citizen-activist and anticolonial interpretations of international law, others
toward improving the national security establishment’s facility with incor-
porating law into policymaking—but the debate nonetheless remained an
important touchstone for them.
In one sense, this analysis of a small snapshot of international law in
the American public debates about the Vietnam War is unsurprising. That
a government appeared to regard international law as a relatively unim-
portant tool of foreign policy, and that the people who cared most about
international law were the international lawyers, is consistent with “real-
ist” views of international law.125 Our aim here, however, is to argue that a
close examination of who used international law and how they used it sug-
gest much more complexity in how international law has worked in public
debates, and how the American approach to international law changed as a
result of this particular public debate.
NOTES
1. See also Luke J. Stewart, “‘A New Kind of War’: The Vietnam War and
the Nuremberg Principles, 1964–1968” (PhD diss., University of Waterloo, 2014),
69–88, 323–30; Samuel Moyn, “From Antiwar Politics to Antitorture Politics,” in
Law and War, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey
(Stanford: Stanford Law Books, 2014), 154–97; Matthew Lippman, “Vietnam: A
Twenty Year Retrospective,” Dickinson Journal of International Law 11, no. 2 (Winter
1993): 325–421, esp. 344–71; Jaro Mayda, “The Vietnam Conflict and International
Law,” in The Vietnam War and International Law, ed. Richard Falk, vol. 2 (Princeton:
Princeton University Press, 1969), 260–70. For accounts from participants in the
public debate, see Peter Weiss, “Nuclear War in the Courts,” in Nuclear Weapons,
the Peace Movement and the Law, ed. John Dewar, Abdul Paliwala, Sol Picciotto, and
Matthias Ruete (Basingstoke: Macmillan, 1986), 182–85; Richard Falk, Public Intel-
lectual: The Life of a Citizen Pilgrim (Atlanta: Clarity Press, 2021), 185–219; Joseph
H. Crown, “The Saga of the Lawyers Committee on American Policy Towards
Vietnam,” unpublished manuscript, 1976, Folder 3 (Vietnam Aftermath [1 of 2]
1965–1978), Box 43, Carey McWilliams Papers, Library Special Collections, Uni-
versity of California, Los Angeles. Our thanks to Simon Elliott and Molly Haigh of
UCLA Library Special Collections for their assistance in accessing Crown’s unpub-
lished survey of the Lawyers Committee’s work.
2. See, for example, Stephen J. Toope, “Public Commitment to International

Law: Canadian and British Media Perspectives on the Use of Force,” in British and
Canadian Perspectives on International Law, ed. Christopher P. M. Waters (Leiden:
Brill, 2006), 17.
3. Madelaine Chiam, International Law in Public Debate (Cambridge: Cam-
bridge University Press, 2021).
4. Matthew Craven, Sundhya Pahuja, and Gerry Simpson, “Reading and
Unreading a Historiography of Hiatus,” in International Law and the Cold War, ed.
Matthew Craven, Sundhya Pahuja, and Gerry Simpson (Cambridge: Cambridge
University Press, 2020), 1.
5. See, for example, Martti Koskenniemi, “What Should International Lawyers
Learn from Karl Marx?” Leiden Journal of International Law 17 (2004): 229, 244–46;
Phillip Allott and Alan Dashwood, “Letter to the Editor,” The Times, March 19,
2003, 23; Mayda, “The Vietnam Conflict and International Law,” 268–69.
6. See Article 51 of the United Nations Charter, June 26, 1945 (entered into
force October 24, 1945), https://www.un.org/en/charter-united-nations/
7. United Nations Security Council, “Letter dated 7 February 1965 from the
representative of the United States of America to the President of the Security
Council,” February 8, 1965, UN Doc. S/6174.
8. William Conrad Gibbons, The U.S. Government and the Vietnam War: Exec-
utive and Legislative Roles and Relationships, vol. 3, January–July 1965 (Princeton:
Princeton University Press, 1989), 79n97.
9. See Brian Cuddy’s chapter in this volume.
10. Gibbons, The U.S. Government and the Vietnam War, 3: 79n97. Much of
this March 8 memo is an exact replica of the February 11 memo, but mention in
the February memo of specific North Vietnamese and National Liberation Front
attacks was replaced in the March memo by general claims of North Vietnamese
aggression.
11. Department of State, “Legal Basis for United States Actions Against North
Viet-Nam,” March 8, 1965, in Background Information Relating to Southeast Asia and
Vietnam, 3rd rev. ed., ed. United States Senate Committee on Foreign Relations
(Washington, DC: US Government Printing Office, 1967), 145–48.
12. William L. Standard, Aggression: Our Asian Disaster (New York: Random
House, 1971), 53. The 1965 US intervention in the Dominican Republic was
also a spur to the creation of the Lawyers Committee, although its founders soon
resolved to focus their public efforts solely on Vietnam. Crown, “The Saga of the
Lawyers Committee on American Policy Towards Vietnam,” 2–3.
13. Weiss, “Nuclear War in the Courts,” 182.
14. Moyn, “From Antiwar Politics to Antitorture Politics,” 168.
15. Lawyers Committee on American Policy Towards Vietnam, “American Pol-
icy Vis-à-Vis Vietnam, in Light of Our Constitution, the United Nations Charter,
the 1954 Geneva Accords, and the Southeast Asia Collective Defense Treaty,” Con-
gressional Record, 89th Cong., 1st Sess. (September 23, 1965), 111: 24902–10.
16. Moyn, “From Antiwar to Antitorture Politics,” 169.
17. Lawyers Committee, “American Policy Vis-à-Vis Vietnam,” 24903.
18. Oscar Schachter, “The Invisible College of International Lawyers,” North-
western University Law Review 72, no. 2 (1977): 217–26. Compare Anthea Roberts,
Is International Law International? (New York: Oxford University Press, 2017), 1–17.
19. Crown, “The Saga of the Lawyers Committee on American Policy Towards
Vietnam,” i, 2–4.
Vietnam,” 5.
Vietnam,” 4. Diem was assassinated a few weeks before Lyndon Johnson became
president.
22. See, for example, Robert W. Kenney and William Standard to Lyndon B.
Johnson, in Congressional Record, 89th Cong., 2nd Sess. (February 9, 1966), 112:
2666.
23. David L. Stebenne, Modern Republican: Arthur Larson and the Eisenhower Years
(Bloomington: Indiana University Press, 2006), 218–20.
Vietnam,” 5; Stewart, “‘A New Kind of War,’” 75–76; Weiss, “Nuclear War in the
Courts,” 182; Moyn, “From Antiwar Politics to Antitorture Politics,” 169.
25. Gibbons, The U.S. Government and the Vietnam War, vol. 4, July 1965–January
1968 (Princeton: Princeton University Press, 1995), 246n96.
26. Gibbons, The U.S. Government and the Vietnam War, 4: 246n96; Congressional
Record, 89th Cong., 2nd Sess. (January 27, 1966), 112: 1312.
27. United States Senate Committee on Foreign Relations, Hearings on S. 2793
to Amend Further the Foreign Assistance Act of 1961, as Amended, 89th Cong., 2nd
Sess., January 28–February 18, 1966 (Washington, DC: US Government Printing
Office, 1966).
28. United States Senate Committee on Foreign Relations, Hearings, 687–
713; Congressional Record, 89th Cong., 2nd Sess. (February 9, 1966), 112: 2665–73,
introduced by Gruening; Congressional Record, 89th Cong., 2nd Sess. (February 25,
1966), 112: 4166–73, introduced by Morse.
29. United States Senate Committee on Foreign Relations, Hearings, 213–14,
511.
30. United States Senate Committee on Foreign Relations, Hearings, 600.
Vietnam,” 6.
32. Leonard Meeker, “The Legality of United States Participation in the
Defense of Viet-Nam,” Department of State Bulletin 54, no. 1396 (March 23, 1966):
474–89.
33. While not publicly acknowledged, the March 8, 1965, memorandum was
drafted by Carl Salans, the assistant legal adviser for Far Eastern affairs, and
approved by Meeker. Gibbons, The U.S. Government and the Vietnam War, 3: 79n97.
34. Gibbons, The U.S. Government and the Vietnam War, 4: 246n96.
35. Congressional Record, 89th Cong., 2nd Sess. (February 23, 1966), 112: 3843,
introduced by Richard Russell, Democrat of Georgia.
36. John Norton Moore and James L. Underwood in collaboration with Myres
S. McDougal, “The Lawfulness of United States Assistance to the Republic of Viet-
nam,” Congressional Record, 89th Cong., 2nd Sess. (July 13, 1966), 112: 15518–67,
introduced by Long. Senator Jacob Javits, Republican of New York, earlier entered
selected excerpts of the lengthy brief into the record. Congressional Record, 89th
Cong., 2nd Sess. (June 22, 1966), 112: 13870–74. The full text, minus the mate-
rial on the lawfulness of United States assistance under domestic constitutional

processes, was republished as John Norton Moore and James L. Underwood, “The
Lawfulness of United States Assistance to the Republic of Viet Nam,” Duquesne
University Law Review 5, no. 3 (1966–1967): 235–352. A shorter version was pub-
lished as John Norton Moore, “The Lawfulness of Military Assistance to the
Republic of Viet-Nam,” American Journal of International Law 61, no. 1 (January
1967): 1–34.
38. Cited in Lippman, “Vietnam,” 347.
39. Gibbons, The U.S. Government and the Vietnam War, 4: 246–47n96; Lippman,
“Vietnam,” 347.
40. Eberhard P. Deutsch, “The Legality of the United States Position in Viet-
nam,” American Bar Association Journal 52, no. 5 (May 1966): 436–42.
41. Deutsch, “The Legality of the United States Position in Vietnam,” 442.
42. See, for example, New York Times, January 29, 1966, 1; New York Times, Feb-
ruary 5, 1966, 6; New York Times, February 19, 1966, 3.
43. New York Times, February 5, 1966, 6.
44. New York Times, February 22, 1966, 1.
45. New York Times, March 10, 1966, 7.
46. New York Times, March 15, 1966, 3.
47. Congressional Record, 89th Cong., 2nd Sess. (February 9, 1966), 112: 2665.
48. Consultative Council of the Lawyers Committee on American Policy
Towards Vietnam, Vietnam and International Law: The Illegality of United States Mili-
tary Involvement, rapporteur John H. E. Fried (Flanders, NJ: O’Hare Books, 1967).
An earlier version was widely circulated in manuscript form. Consultative Council
of the Lawyers Committee on American Policy Towards Vietnam, “The Military
Involvement of the United States in Vietnam: A Legal Analysis,” October 1, 1966,
https://vva.vietnam.ttu.edu/repositories/2/digital_objects/515729
49. Richard Falk, “Vietnam and International Law: The Past Recalled and the
Future Challenged,” in Consultative Council of the Lawyers Committee on Ameri-
can Policy Towards Vietnam, Vietnam and International Law: An Analysis of Interna-
tional Law and the Use of Force, and the Precedent of Vietnam for Subsequent Interven-
tions, rapporteur John H. E. Fried (Northampton, MA: Aletheia Press, 1990), xii.
50. Stewart, “‘A New Kind of War,’” 326, 329, 323.
51. Falk remains the key international legal voice on the legality of the US war
in Vietnam. For a recent collection of his writings on the war, see Stefan Anders-
son, ed., Revisiting the Vietnam War and International Law: Views and Interpretations
of Richard Falk (Cambridge: Cambridge University Press, 2018).
Vietnam,” 12; Weiss, “Nuclear War in the Courts,” 183–85; Stewart, “‘A New Kind
of War,’” 329, 145.
53. For more on the Russell Tribunal, see Tor Krever’s chapter in this volume.
54. Luke J. Stewart, “Too Loud to Rise Above the Silence: The United States vs.
the International War Crimes Tribunal, 1966–1967,” The Sixties: A Journal of His-
tory, Politics and Culture 11, no. 1 (2018): 17–45, esp. 19–20, 23, 31, 34.
55. Falk, “Vietnam and International Law: The Past Recalled and the Future
Challenged,” x; Stewart, “‘A New Kind of War,’” 333.
56. Stewart, “‘A New Kind of War,’” 11.

57. Mayda, “The Vietnam Conflict and International Law,” 260.
58. Dean Rusk, “The Control of Force in International Relations,” Department
of State Bulletin 52, no. 1350 (May 10, 1965): 698.
Viet-Nam,” 145.
Viet-Nam,” 148.
Viet-Nam,” 146.
62. John Norton Moore, Law and the Indo-China War (Princeton: Princeton
University Press, 1972), xxviii.
71. United States Senate Committee on Foreign Relations, Hearings, 568.
72. Meeker, “The Legality of United States Participation in the Defense of
Viet-Nam,” 474–75.
Viet-Nam,” 476–79.
Viet-Nam,” 480–81.
75. Congressional Record, 89th Cong., 2nd Sess. (February 23, 1966), 112: 3843.
77. John Norton Moore, “International Law and the United States Role in Viet
Nam: A Reply,” Yale Law Journal 76, no. 6 (May 1967): 1053.
78. Moyn, “From Antiwar Politics to Antitorture Politics,” 172; Congressional
Record, 89th Cong., 2nd Sess. (February 9, 1966), 112: 2665.
79. Richard Falk, “International Law and the United States Role in the Viet
Nam War,” Yale Law Journal 75, no. 7 (June 1966): 1139–40; see also 1134.
80. Falk and Moore were both acolytes of McDougal, the key figure in the
policy-oriented approach of the New Haven school of international law.
81. Falk, “International Law and the United States Role in the Viet Nam War,”
1146, 1155, 1139; Moore, “International Law and the United States Role in Viet
Nam: A Reply,” 1090.
82. Falk, “International Law and the United States Role in the Viet Nam War,”
1122, 1135, 1159; Moore, “International Law and the United States Role in Viet
Nam: A Reply,” 1054.
83. John Norton Moore, ed., Law and Civil War in the Modern World (Baltimore:
The Johns Hopkins University Press, 1974), xix–xx.
84. John Norton Moore, “The Arab-Israeli Conflict and the Obligation to Pur-
sue Peaceful Settlement of International Disputes,” University of Kansas Law Review
19, no. 3 (1970): 425.
85. Richard Falk, “Reply to Professor Julius Stone,” American Journal of Interna-
tional Law 64, no. 1 (January 1970): 163.
86. Falk, “International Law and the United States Role in the Viet Nam War.”
87. Richard Falk, “The Beirut Raid and the International Law of Retaliation,”
American Journal of International Law 63, no. 3 (July 1969): 415–43.
88. Moore, Law and Civil War in the Modern World, 22–23.
89. Lawyers Committee, “American Policy Vis-à-Vis Vietnam,” 24906. Empha-
sis added.
91. Congressional Record, 89th Cong., 2nd Sess. (January 27, 1966), 112: 1312;
Congressional Record, 89th Cong., 2nd Sess. (February 23, 1966), 112: 3843.
92. David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape
Global Political Economy (Princeton: Princeton University Press, 2016), 122.
Vietnam,” 6.
94. Harold Hongju Koh, “The Legal Adviser’s Duty to Explain,” Yale Journal of
International Law 41 (2016): 189–211.
96. Stebenne, Modern Republican, 276. Duke did later revitalize its commitment
to the study of the global rule of law but with an emphasis on the rule of law within
countries rather than among them.
97. Barbara J. Keys, Reclaiming American Virtue: The Human Rights Revolution of
the 1970s (Cambridge, MA: Harvard University Press, 2014); Samuel Moyn, The
Last Utopia: Human Rights in History (Cambridge, MA: The Belknap Press of Har-
vard University Press, 2010).
98. National security law’s military counterpart, operational law, was also part
of this trend. See Craig Jones’s chapter in this volume for more on the origins and
development of operational law.
99. Peter Raven-Hansen, Stephen Dycus, and William C. Banks, “A Brief His-
tory of the Field of National Security Law,” in National Security Law: Fifty Years of
Transformation: An Anthology, ed. Jill D. Rhodes (Chicago: ABA Standing Commit-
tee on Law and National Security, 2012), 31.
100. Roberts, Is International Law International?, 50, 104–5.
101. John Norton Moore, “Law and National Security,” Foreign Affairs 51, no.
2 (January 1973): 414. Moore served with both the State Department and the
National Security Council at around the same time he wrote this article.
102. Eric Williamson, “Professor John Norton Moore, Former Ambassador for
the Law of the Sea, to Retire,” University of Virginia School of Law, January 27,
2020, https://www.law.virginia.edu/news/202001/professor-john-norton-moore
-former-ambassador-law-sea-retire
103. John Norton Moore and Robert F. Turner, “The ABA Standing Committee
on Law and National Security: Historic Player in the Creation and Development
of the Field,” in National Security Law: Fifty Years of Transformation: An Anthology, ed.
Jill D. Rhodes (Chicago: ABA Standing Committee on Law and National Security,
2012).
104. Holly McMahon, “Reflections from the Core,” in National Security Law:
Fifty Years of Transformation: An Anthology, ed. Jill D. Rhodes (Chicago, IL: ABA
Standing Committee on Law and National Security, 2012), vii.
106. Eric Williamson, “The War-and-Peace Professor,” University of Virginia
School of Law, March 9, 2017, https://www.law.virginia.edu/news/201703/war-and
-peace-professor
107. Consultative Council of the Lawyers Committee, Vietnam and International
Law, 12–13.
108. Falk, Public Intellectual, 185.
109. Falk, Public Intellectual, 192–93, 190.
110. Falk, Public Intellectual, 194, 204. A meeting at the Pentagon prior to Falk’s
trip to North Vietnam also contributed to Falk’s shift in attitude.
112. Telford Taylor, Nuremberg and Vietnam: An American Tragedy (Chicago:
Quadrangle Books, 1970).
113. Falk, Public Intellectual, 200–201. See also Moyn, “From Antiwar Politics to
Antitorture Politics,” 177–81.
Challenged,” xvi. See also Weiss, “Nuclear War in the Courts”; Falk, Public Intel-
lectual, 199.
115. Richard Falk, “Foreword: Third World Approaches to International Law
(TWAIL) Special Issue,” Third World Quarterly 37 (2016): 1944; Madelaine Chiam,
review of Stefan Andersson, ed., Revisiting the Vietnam War and International Law:
Views and Interpretations of Richard Falk, H-Diplo, H-Net Reviews, December 2018,
https://www.h-net.org/reviews/showpdf.php?id=52160
Challenged,” xv.
118. Cited in John Quigley, The Six-Day War and Israeli Self-Defense: Questioning
the Legal Basis for Preventive War (New York: Cambridge University Press, 2013),
135.
119. Falk, “Foreword: Third World Approaches to International Law (TWAIL)
Special Issue,” 1944. Emphasis in original.
120. John Norton Moore, ed., The Arab-Israeli Conflict, vol. 1, Readings (Prince-
ton: Princeton University Press, 1974), 17.
121. John Norton Moore, ed., The Arab-Israeli Conflict, vol. 3, Documents (Prince-
ton: Princeton University Press, 1974), vi–vii.
122. Moore, The Arab-Israeli Conflict, 1: 17.
123. Eric Williamson, “The War-and-Peace Professor.”
124. John Norton Moore, “The Thirteenth Waldemar A. Solf and Marc L. War-
ren Chair Lecture in National Security Law: Defending Defense in the Law of Jus
ad Bellum,” Military Law Review 228 (2020): 418, 411.
125. Although note Crown’s comment on Hans Morgenthau: “He originally
declined to join the Consultative Council, feeling that lawyers could make little
contribution towards halting the war. As the Lawyers Committee’s activities came
into the public eye, he asked to join and thereafter played a vigorous role, particu-
larly in the news conferences sponsored by the Committee.” Crown, “The Saga of
the Lawyers Committee on American Policy Towards Vietnam,” 11.
FOUR
Legality of Military Action by Egypt

and Syria in October 1973
John Quigley
In the early 1970s, the United States faced delicate issues on use of force
for its military action in Vietnam. The United States exited Vietnam early
in 1973 only to confront new use of force issues a few months later in the
Middle East. Israel in 1967 had invaded Egypt, then, almost immediately,
Jordan and Syria. The United States, which regarded Israel as a virtual
ally, had kept the Security Council of the United Nations from condemn-
ing Israel in 1967 despite credible claims of aggression by the three Arab
countries. In the Autumn of 1973, within months of the US departure from
Vietnam, Egypt and Syria sought to regain their territory, an action that
raised an issue of the legality of use of force. Having just extracted itself
from a military action that brought considerable international condemna-
tion, the United States found itself protecting Israel in the face of interna-
tional sentiment that favored Egypt and Syria.
With the hostilities in both Vietnam and the Middle East, serious dis-
cussion of the legalities in the Security Council never took place. The
United States, using its position as a veto-wielding permanent member
of the Security Council, was able to orient discussion away from legalities.
In both situations—whether in regard to its own actions in Vietnam or
Israel’s actions in the Middle East—the United States was on thin ice from
the standpoint of international legality. Both situations involved protec-
87
tion of national territory from outside military action. The United States
had inserted itself militarily in Vietnam into what was widely regarded as a
domestic civil war. Israel had seized territory of Egypt and Syria in military
action that amounted to aggression, and the two Arab nations were seeking
to recapture their territory. The United States had every interest in keep-
ing the Security Council from examining the legality of Egypt and Syria’s
action. Its own effort to cover for Israel in 1967 could be exposed, and par-
allels to the legality of its own actions in Vietnam would have been aired.
For the United States, a common element was that it sought to forestall
difficulties with the Soviet Union. The Soviet Union had scored major
Cold War points against the United States with scathing condemnation
of the United States for aggression against Vietnam. Israel’s occupation of
Egyptian and Syrian territory in 1967 had similarly brought a charge of
aggression by the Soviet Union against Israel. Israel’s continuing occupa-
tion of Egyptian and Syrian territory was similarly the target of a Soviet
charge of aggression. The international context of the era was unfavorable
to the United States. New states emerging from colonialism were changing
the composition of the United Nations, putting the United States on the
defensive with respect both to Vietnam and to the Middle East.
This chapter focuses on the 1973 Middle East episode—on the actions
of Syria and Egypt to regain their territory, and on diplomatic efforts by
the United States to deflect criticism of Israel and to manage its own rela-
tions with the Soviet Union.1
The hostilities that pitted Syria and Egypt against Israel in 1973 were
raised in the Security Council of the United Nations, with Syria and Egypt
on the one side and Israel on the other each claiming to be in the right.
The Security Council engaged in no fact-finding. Nor did the members
of the Security Council engage in serious polemics over legalities. Their
orientation was to achieve a cease-fire and, beyond that, to ensure that such
hostilities not recur.
The issue of legality in the situation could be framed in two different
ways. A cease-fire between the parties had been mandated by the Security
Council in 1967, after the hostilities that occurred in June of that year.2
Initiation of force by either side would constitute a violation of that cease-
fire. Under the Charter of the United Nations, decisions of the Security
Council are binding on member states. All three states were members of
the United Nations.
More broadly, the initiation of force could constitute aggression, which
is also prohibited by the Charter of the United Nations. Analysis of that
matter inevitably takes one back to the 1967 hostilities, which left Israel
Legality of Military Action by Egypt and Syria in October 1973 89
in occupation of Syria’s Golan Heights and of Egypt’s Sinai Peninsula,

thus setting the stage for those of 1973, which were carried out in those
two sectors. If Israel were the initiator of force in 1973, Israel would be
the aggressor. If Syria and Egypt were the initiators of force in 1973, they
would potentially have open to them an argument that they were seeking
merely to reverse action of Israel in 1967, which, by the analysis of Syria
and Egypt, was unlawful on Israel’s part.
The Security Council, moreover, has a role under the Charter to pro-
tect the peace. States that are threatened with aggression are to seek its aid.
Once peace has been broken, the Security Council is to determine what
is required to restore it and to ensure against recurrence. The Security
Council was at the center of action in both the 1967 and 1973 hostilities. It
was engaged in efforts at peace, which continued between 1967 and 1973.
Its fulfilment of that role is thus a relevant circumstance in analyzing the
actions of the three states.
The issue of legality in relation to the use of force in 1973 thus requires
an appreciation of the background dating back to 1967. This chapter will
first recount the actions of the parties and of the Security Council, to allow
an analysis of the violation vel non of the rules on use of force.
Arriving at a solidly based assessment is complicated by the fact that, at
least in the Charter era, one is hard pressed to find precedents. Force has
been used by states with respect to territory that is disputed between them,
but that was not the situation in 1973. Israel did not claim sovereignty over
the Sinai Peninsula or the Golan Heights. In 1981, Israel would adopt a
law that applied its own legislation to the Golan Heights, a measure that
came close to asserting sovereignty.3 But this had not occurred as of 1973.
Israel Committed Aggression in 1967
It is a matter of dispute whether the 1973 hostilities qualify as a war. One

analyst considers them merely a phase “in the course of a single ongoing
war that had commenced in June 1967.”4 The hostilities that began in June
1967 had, to be sure, not been resolved by any treaty of peace by 1973.
One author who thought Israel justified in its actions in June 1967 found
its occupation of Egyptian and Syrian territory lawful as of 1973 on the
rationale that the Arab states were declining to negotiate treaties of peace
with Israel.5 The 1973 hostilities took place in the context of a belliger-
ent occupation that began in 1967, and hence relate back to the 1967 war.
They are not a separate war.
Analysis of the 1973 hostilities must begin with the 1967 hostilities, to
ascertain whether Israel came into occupation lawfully. Even if it did so, it
can then be asked whether it was justified in continuing in occupation to
the year 1973. If it acted unlawfully in 1967, its rationale for a long-term
occupation is undermined.
Another element in the equation is the action of the Security Coun-
cil of the United Nations. All the states involved were members of the
United Nations, and under its Charter the Security Council is to deal with
breaches of international peace. The contending states thus may have had
obligations toward the United Nations. In 1967, the Security Council had
called for cease-fires among the contending parties.6 Those cease-fires
remained in effect in 1973.
Those cease-fires were ordered after hostilities broke out on June 5,
1967, initially between Egypt and Israel. Hostilities between Israel and
Syria followed on June 8, 1967. It was these two episodes of hostilities
that led to Israel’s occupation of Egypt’s Sinai Peninsula and Syria’s Golan
Heights, occupations that in both instances continued in 1973.
On June 5, 1967, Israel and Egypt each claimed that the other had initi-
ated the hostilities that began that morning. Israel, in a written message to
the Security Council, claimed “that Egyptian land and air forces have moved
against Israel and Israel forces are now engaged in repelling the Egyptian
forces.”7 Egypt, in a written message of its own, claimed that “Israel has
committed a treacherous premeditated aggression” and explained that “in
repelling this aggression” it “ha[d] decided to defend itself by all means, in
accordance with Article 51 of the Charter of the United Nations.”8
When the Security Council convened, Israel gave details:
In the early hours of this morning Egyptian armoured columns

moved in an offensive thrust against Israel’s borders. At the same
time Egyptian planes took off from airfields in Sinai and struck
out towards Israel. Egyptian artillery in the Gaza Strip shelled the
Israel villages of Kisufim, Nahal-Oz and Ein Hashelosha. Netania
and Kefar Yavetz have also been bombed. Israel forces engaged the
Egyptians in the air and on land, and fighting is still going on.
Like Egypt, Israel invoked UN Charter Article 51 to claim self-defense

against an initial use of force.9
Elaborating on its charge of aggression committed by Egypt, Israel
claimed that “approaching Egyptian aircraft appeared on our radar
screens.”10 On that point, Israel asserted that Egyptian fighter jets “took off
for their assigned targets in Israel, while at the same time an artillery bar-
rage on Israel farming villages was opened from the Gaza Strip.”11 Egypt
denied the truth of these claims.12
No Egyptian troops entered Israel, but Israeli troops entered Egypt’s
Sinai Peninsula, attacking Egyptian positions near the Egypt-Israel fron-
tier, and pushing the Egyptian forces back. Three days into the fighting,
Israeli troops entered Syria’s Golan Heights, pushing Syrian forces out.
Syria charged Israel with aggression.13
On June 6, the Security Council “called upon the governments con-
cerned as a first step to take forthwith all measures for an immediate cease
fire and for a cessation of all military activities in the area.”14 That resolution
was criticized, however, by the Soviet Union, which said that withdrawal
by Israel should also have been sought. It charged Israel with aggression.15
Several Security Council members said it would be unproductive to focus
on aggression by any of the parties to the conflict.16
On June 9, Syria told the Security Council that Israel was attacking into
its territory through the Golan Heights. It charged Israel with aggression.17
The Soviet Union put forward a draft resolution to condemn Israel
for aggression against Egypt and Syria.18 Bulgaria, India, and Mali voted
along with it in favor. The other eleven states abstained.19 No abstaining
member state suggested that Israel had acted lawfully, or that Egypt or
Syria had not.
In the UN General Assembly, which held an emergency special session
on the situation beginning June 17, 1967, Israel repeated its claim that
Egypt initiated the hostilities. “[O]n the fateful morning of 5 June,” Israel
said, “Egyptian forces moved by air and land against Israel’s western coast
and southern territory.”20 Egypt again denied starting the hostilities, and
the Soviet Union tabled a resolution to condemn Israel for aggression.21
As in the Security Council, no state backed Israel on its charge of
aggression by Egypt. No investigation into the conflicting claims was being
ordered, a failing that Spain thought to be a “grave mistake.” Spain noted
Israel’s rapid troop advance into the Sinai as being inconsistent with Israel’s
claim that Egypt began the hostilities.22 India said the same. It thought
“that Israel struck the first blow,” leaving Israel only the possibility of argu-
ing that prior acts by Egypt short of war during the month of May 1967
might suffice to allow Israel to attack first. But, said India, “The concept of
a pre-emptive strike or a preventive war is contrary to the letter and spirit
of the United Nations Charter.”23 Zambia thought that if Israel felt threat-
ened by Egypt, its recourse was to the United Nations, by which it meant
to the Security Council.24
Although Israel had not used anticipatory self-defense as a justification,

Cyprus, like India, addressed that potential issue. “No degree of military
preparation by a neighbouring State, however alarming, can afford justifica-
tion for the use of ‘anticipatory force,’” it said.25 Cyprus characterized Israel’s
conduct as “aggression: co-ordinated armed attack by air and land.”26
When a vote was taken on the Soviet draft resolution, 36 states voted
in favor, 57 voted against, and 23 abstained.27 No state, however, said that
Israel was justified. Some said that the facts had not been clarified, while
others thought it better to find an overall solution to the longstanding
Arab-Israeli conflict.
That was the approach taken by the Security Council when it recon-
vened on the issue in November 1967. Resolution 242, which it adopted,
envisaged a settlement of the conflict. Resolution 242 anticipated in that
connection that Israel would withdraw from the territory it occupied in
June 1967. In a preamble clause that also concerned the June 1967 hostili-
ties, Resolution 242 referred to “the inadmissibility of the acquisition of
territory by war.”28 That clause, by using the term “acquisition,” addressed
the issue of whether Israel could claim sovereignty. The clause meant that
it could not. But neither that clause nor any other provision of Resolu-
tion 242 addressed the question of whether Israel’s occupations were lawful
pending treaties of peace.
Even before that Security Council action in November 1967, Israel
abandoned its claim that Egypt began the June 1967 hostilities. On July 7,
1967, Israeli prime minister Levi Eshkol said that once Egypt drew troops
up to the Israel-Egypt frontier, as it had done in May 1967, and once it
announced a plan to block shipping to Israel through the Straits of Tiran,
the only issue for Israel was whether it would act “today or tomorrow.”29 In
this interview about the June 1967 hostilities, Eshkol made no mention of
any offensive acts by Egypt on the morning of June 5.
Eshkol’s statement was taken as an acknowledgment that Israel had
begun the hostilities, hence that its statements in the Security Council
and General Assembly were disingenuous. France’s Le Monde newspaper,
referring to Eshkol’s omission of any mention of initial acts by Egypt on
the morning of June 5, wrote, “The fiction of the prior land or air attack
by the Egyptian forces thus seems definitively abandoned in favor of the
thesis asserted already many times that a state of war dates from the day
Colonel Nasser imposed a blockade of the Straits of Tiran.”30 According to
The Times (London), Eshkol, by his statement, “buried the often-repeated
statement that Egyptian [air] and land forces attacked Israel before she
launched her devastating lightning offensive on June 5.”31
From that time, Israeli officials stopped claiming any precipitating

military action by Egypt. But they did not embrace Eshkol’s view that
Israel’s attack on Egypt was justified by Egypt’s planned closure of pas-
sage through the Straits of Tiran. Shabtai Rosenne, who earlier served as
legal advisor to Israel’s foreign ministry and who, during the June 1967
hostilities, was Israel’s deputy UN permanent representative, said that
Israel was justified because Egypt had been about to attack, and that an
attack in anticipation of one by an adversary was lawful. Rosenne claimed
there had been a “real and urgent threat posed to Israel’s very existence
by the massed armies of her immediate neighbors, backed by all the other
Arab states.”32
But Itzhak Rabin, who served as chief of staff during the 1967 hostilities
and was involved in the decision to attack Egypt, said that Israel’s cabinet,
which had voted to invade Egypt, understood that Egypt was not going to
invade Israel.33 In 1972, that assessment was confirmed by Mordecai Ben-
tov, who served in Israel’s cabinet as a government minister in 1967. Ben-
tov said that a “story” about an expected Egyptian invasion was “invented”
after the fact.34
Efforts by Syria and Egypt to Regain Their Territory
Hostilities ended on June 10, 1967, but thereafter not all was calm. The
cease-fires called for by the Security Council in June 1967 worked to the
advantage of Israel, as they left it in control of the territories it occupied
in June 1967. In November 1967, Gunnar Jarring had been appointed by
UN Secretary-General U Thant as his special representative to attempt
to achieve peace on the basis of Security Council Resolution 242. Jarring’s
mission gained little traction, however. Over the next few years, attacks
back and forth took place between Israel and Egypt in and across the Suez
Canal. Those hostilities intensified in 1969 and finally were ended by a
cease-fire between the two, signed on August 7, 1970.35 International sen-
timent lay with Egypt and Syria. The UN General Assembly adopted a
resolution “deploring the continued occupation of the Arab territories
since 5 June 1967” and calling for a settlement based on Security Council
Resolution 242.36
From 1970, the issue of Israel’s occupations moved into the diplomatic
realm. Jarring’s efforts were unsuccessful, however, as he could not con-
vince Israel to withdraw from any of the territory it occupied in 1967, and
in particular from the Golan Heights or Sinai Peninsula. In negotiations
with Egypt and Israel, Jarring sought a peace treaty in which Israel would
vacate the Sinai Peninsula. But, as he reported to Secretary-General Thant,
“Israel would not withdraw to the pre-5 June 1967 lines” as part of a poten-
tial peace treaty.37 Jarring appealed to Israel to make such a commitment,
but Israel declined to do so.38 Considering that this refusal by Israel was
the source of the “deadlock” in Jarring’s efforts, Thant entreated Israel to
reconsider. “I appeal, therefore,” he said in his report on the situation, “to
the Government of Israel to give further consideration to this question and
to respond favourably to Ambassador Jarring’s initiative.”39
Israel did not reconsider. In 1973, the failure of the Jarring mission was
acknowledged by Kurt Waldheim, who by then had replaced U Thant as
secretary-general.40 This failure prompted a group of nonaligned states—
Guinea, India, Indonesia, Panama, Peru, Sudan, and Yugoslavia—to pro-
pose a draft resolution in the Security Council to urge a continuation of
the secretary-general’s efforts. At the same time, the draft resolution would
have put the onus on Israel for the lack of progress. The draft recited, inter
alia, that the Security Council
2. Strongly deplores Israel’s continuing occupation of the terri-

tories occupied as a result of the 1967 conflict, contrary to the
principles of the Charter
3. Expresses serious concern at Israel’s lack of co-operation with
the Special Representative of the Secretary-General
As the Security Council met on the draft resolution, Syria referred to Israel
as the aggressor.41 Egypt, referring to 1967, said,
We came to this Council in 1967, asking for what we thought—and

still think—was right: an order for unconditional, immediate and
total withdrawal of the forces of aggression that had invaded our
lands. . . .42
Israel insisted that its occupation was appropriate, on the rationale that
Israel was repelling Egypt as the aggressor:
For 25 years Israel has been subjected to aggression by the Arab

States, with Egypt at their head. Today we have finally succeeded in
repelling the aggressor, in pushing back its armies. Are we to turn
the wheels of history back and restore the situation of vulnerability
and chaos which invited the Arab Governments to resist peace, to
continue illegitimate warfare against us for two and a half decades?43
Javier Perez de Cuellar, then the representative of Peru in the Security

Council, explained that Peru cosponsored the draft resolution, with its
language deploring the continuing occupation, in light of “the Council’s
responsibility for the preservation of international peace and security.”44
Perez de Cuellar thus acknowledged the failure of the Security Council to
carry out its obligation to secure the peace and of Israel’s continuing occu-
pation as being inconsistent with peace.
This draft resolution was put to a vote and secured the affirmative votes
of 13 of the Security Council’s 15 members. The United States cast the
lone negative vote, which, under Security Council procedures, constituted
a veto.45
October 6, 1973
The hostilities that began on October 6, 1973, were immediately brought

to the attention of the United Nations by Syria and Egypt. Syria claimed
“that the Israeli armed forces have launched aggression against Syrian for-
ward positions all along the cease-fire line. Our forces had to return the
fire.”46 Egypt sent a letter claiming aggression by Israel:
Israeli air formations attacked Egyptian forces stationed in the areas

of El Zaafarana and El Sukhna on the Gulf of Suez, while Israeli
naval units were approaching the Western Coast of the Gulf of Suez
from the Egyptian territory of Sinai occupied by Israel as a result of
the war it launched on 5 June 1967. Egyptian forces are at present
engaged in military operations against the Israeli forces of aggres-
sion in the occupied territories.47
Syria and Egypt highlighted the fact that the Security Council had
failed to compel Israel to withdraw from territory it had occupied since
1967. Syria complained that the Security Council was not fulfilling its
function. “[O]ur organization,” said Syria, referring to the United Nations,
“is paralysed by the improper use of the right of veto.” It said, “this veto has
been utilized against justice and logic and against the will of 13 members
of the Security Council.”48 That was a reference to the defeat of the draft
resolution by veto of the United States on July 26, 1973.
Egypt noted that the United States was mentioning the cease-fires of
1967 as precluding use of force by any of the parties. Egypt questioned the
validity of those cease-fires. It noted that Resolution 233 of June 6, 1967,
“calls upon the Governments concerned to take forthwith as a first step
all measures for an immediate cease-fire.” Egypt noted further that Reso-
lution 234 of June 7, 1967, demanded “that the governments concerned
should as a first step cease fire.” But “what was supposed to be a first step
remained until it was really almost a permission and licence for the occupa-
tion of these lands.”49
Israel’s record of false claims led US officials to suspect that it had
started the hostilities. James Schlesinger, who had recently served in Wash-
ington as director of the Central Intelligence Agency, and who had taken
over as secretary of defense, told colleagues at the White House, “if the
Israelis didn’t start it it’s the first time in 20 years.”50 Roy Atherton, deputy
assistant secretary of state for Near Eastern and South Asian Affairs, refer-
ring to Israel’s thrust into Syria in 1967, feared that “the Israelis may try to
take Damascus this time.”51
In actuality, it was the Syrian and Egyptian forces that initiated the
hostilities.52 Egypt had been planning an attack for several weeks and
had drawn Syria into this effort.53 Syria moved into portions of its Golan
Heights, and Egypt crossed the Suez Canal, taking up positions Israel had
held on the eastern bank of the canal.54 The United Nations Truce Super-
vision Organization (UNTSO), which maintained personnel in both sec-
tors, reported on the outbreak to the secretary-general on the afternoon of
October 6, 1973:
General heavy air and ground activity continues along all sectors.
Egyptian ground forces have crossed the Suez Canal. . . . Syrian
forces have crossed the area between the limits of the forward
defended localities indicating the cease-fire lines in the vicinity of
Kuneitra and near OP [Observation Post] November.55
These actions meant military activity across cease- fire lines. UNTSO
informed the secretary-general: “In the field, the Chief of Staff of UNTSO
addressed an appeal to the parties to cease all military activity and adhere
strictly to the cease-fire.”56
As the White House conferees charted what reaction Washington
should make, they tried to guess at the public reaction in the United States
to the hostilities. Atherton noted, “A lot of sympathy is with Egypt and
Syria over what is seen as their patience over the last six years.”57 Kenneth
Rush, deputy secretary of state, replied that “a lot of people in this country
think that the first strike in 1967 was by the Arabs and the Israelis were
defending themselves.” Understanding that this perception was false, Rush
thought that the public might sympathize with Israel.58
Secretary of State Henry Kissinger surmised, correctly, that Egypt and

Syria had initiated the fighting, but at the same time said that the United
States was using “maximum influence with the Israelis to show restraint.”59
When Kissinger consulted Soviet ambassador Anatolii Dobrynin on how
to deal with the hostilities, Dobrynin told Kissinger “that the Arabs are
trying to regain the lands occupied by Israel.” Said Dobrynin, “for us to tell
them you cannot free your land, it is ridiculous.”60
Kissinger consulted with Israel’s chargé d’affaires in Washington, Mor-
dechai Shalev, who asked Kissinger to keep the hostilities from being dis-
cussed in either the Security Council or General Assembly for at least a few
days. Shalev said he expected Israel to be in “a position of attack rather than
defense” by that time, so it could withstand a cease-fire resolution with-
out losing territory. Kissinger agreed.61 He knew that the United States
would be isolated at the United Nations in its support for Israel.62 If the
General Assembly were to take up the hostilities, feared Kissinger, that
“would have meant a diatribe of the nonaligned in support of the extreme
Arab position.” Even the Security Council presented risks for Kissinger,
because a pro-Arab resolution could be introduced, “forcing us to veto and
undermining our position with the Arab moderates.”63 The United States
was already on shaky footing with the Third World because of its military
action in Vietnam and could ill afford more hostility.
Kissinger told President Richard Nixon that he had maneuvered to
avoid a full debate in the UN General Assembly, saying it “would have
been a massacre,” meaning that members would have supported Egypt and
Syria.64 Kissinger’s aim was to gain restoration of the cease-fire lines, which
would keep Egypt and Syria from making any gains back into their terri-
tories. “The Arabs will scream that they are being deprived of their birth-
right,” said Kissinger at a White House meeting.65 Kissinger thus antici-
pated that the view of Egypt and Syria would be that they were taking back
their own territory. Such a posture on the part of Egypt and Syria might
be uncomfortable for the United States, which was trying to depict the
Democratic Republic of Vietnam (DRV, or North Vietnam) as an aggres-
sor against the Republic of Vietnam (RVN, or South Vietnam). The DRV,
of course, regarded Vietnam as a single country and viewed its military
action as being aimed at taking its own territory. Vietnam had emerged
from French control in 1954 as a single state even though its territory was
under two competing administrations. Vietnam was regarded as a single
state both by the DRV authorities headquartered in Hanoi and by the
RVN authorities headquartered in Saigon.
The United States had managed to keep the Security Council from
undertaking any serious discussion of the propriety of its military interven-

tion in Vietnam. A full-scale debate in the Security Council of Egypt’s effort
to retake its territory would have put jus ad bellum issues onto the front pages
of the world’s newspapers. For the United States, it was “the less said the bet-
ter” as to what constituted aggression and what constituted self-defense. The
United States was in jeopardy of being seen as legally responsible in each
situation—in Vietnam for inserting itself in a civil conflict and in the Middle
East for having covered up for Israel’s 1967 aggression.
Even an embarrassing similarity in the tactics used to rationalize mili-
tary action might have been exposed. In 1964, the United States falsely
claimed an attack on one of its military vessels in the Gulf of Tonkin, off the
Vietnamese coast, to initiate major military action in Vietnam.66 In 1967,
Israel did something similar by falsely claiming that Egypt had attacked
the three Israeli settlements. In neither case had the pretense been widely
revealed by 1973 within the international community. Had the Security
Council undertaken serious legal analysis of the 1973 situation, a finger
might be pointed at the United States for relying on manipulated facts to
justify aggression.
On the ground, Egypt and Syria initially made advances against the
occupying Israeli forces. Syrian troops retook a portion of the Golan
Heights. Egyptian troops successfully crossed the Suez Canal and pen-
etrated defensive installations (Bar-Lev line) that the Israeli forces had set
up to thwart such an advance from the Egyptian side. Israeli forces then
counterattacked, however, retaking the entirety of the Golan Heights and
advancing deeper into Syria. Israeli forces managed to reclaim the terri-
tory on the eastern side of the Suez Canal and then to cross over to the
western side.67 The United States airlifted massive quantities of armaments
to Israel.
Jordan stayed out of the hostilities, even though it, like Egypt and Syria,
had lost territory to Israel in 1967. Egypt tried unsuccessfully to convince
Jordan to open a third front against Israel on Israel’s eastern side. Jordan
eventually did deploy forces on the Golan Heights front. Egypt gained
help from the Palestine Liberation Organization, which carried out attacks
to disrupt Israel’s resupply efforts.68
On October 22, 1973, the Security Council adopted Resolution 338,
in which it called for a cease-fire in place. Fighting continued, however. A
Disengagement Agreement between Israel and Egypt was reached only on
January 18, 1974,69 and one between Israel and Syria on May 31, 1974.70
Egypt kept control of a strip of territory on the eastern side of the Suez
Canal. Israel was left in control of the Golan Heights.
Use of Force to Recapture Occupied Territory
Egypt’s aim in initiating hostilities against Israel in October 1973 was short
of recapturing the territory held by Israel. Kissinger later wrote:
Sadat aimed not for territorial gain but for a crisis that would alter
the attitudes into which the parties were frozen—and thereby open
the way for negotiations.71
The assessment by the US Central Intelligence Agency had been that

Egypt would not try to send troops across the Suez Canal because Egypt’s
forces would not have the wherewithal to advance far into Sinai.72 Egyp-
tian president Anwar Sadat communicated with the United States during
the fighting.73 This effort by Egypt was taken by Kissinger to indicate that
Egypt was seeking by its action to spur diplomacy rather than take the
Sinai militarily.74
Egypt coordinated with Syria to coordinate a strike against Israel,
thereby forcing Israel to defend from two directions.75 Egypt did not
anticipate that it could drive Israel out of the Sinai Peninsula, though it
might be able to take and hold at least some Sinai territory. Doing so might
invigorate the diplomatic process. Even though Egypt’s military aims may
have been modest, it was using military means. That requires an assessment
of the legality of those means.
Syria and Egypt were attacking into their own territory that was under
foreign occupation. Their use of force must be analyzed in that context. The
issue of whether a state that has been invaded may use force to recapture its
own territory may seem so obvious a solution as not needing to be asked.
A state that is invaded enjoys a right of self-defense.76 That right does
not dissipate with passage of time. Even apart from the right of the invaded
state to recapture occupied territory, one finds in the law the right of the
population of the occupied territory. In the situation in which the entirety
of a state’s territory is occupied, leaving that state with no government, the
population is entitled to use force, within the bounds of humanitarian law,
to recapture the territory. If personnel of the occupied population are cap-
tured by the occupying power in the course of such efforts, those personnel
are entitled to be treated as prisoners of war, rather than as criminals.77 If
the population of occupied territory has a right to resist being occupied
by force of arms, it must a fortiori be the case that if the occupied state
still has a government with military capability, that government enjoys the
same right.
Even if Egypt’s aim was short of a recapture by military force of the

Sinai Peninsula, and even if Syria’s aim was short of a recapture by mili-
tary force of the Golan Heights, their actions involved a use of force into
territory of their own that was under belligerent occupation. And even
though Egypt and Syria claimed an initiation of use of force by Israel, they
both considered themselves within their rights to take military action to
recapture their territory. Thus Syria, in the Security Council on October
9, 1973, stated: “Our goal can be none other than to recover usurped Arab
territory.” Responding to Israel’s call for a return to positions held before
October 6, 1973, Syria said “such positions happen to be in our national
territory. And the fight we are waging now, and which was provoked by the
Israeli attack, cannot be qualified as anything other than a national libera-
tion fight, which is in conformity with the principles of the United Nations
and in accordance with the norms of international law.”78
Egypt, referring to Israel’s claim of aggression against both Egypt and
Syria, replied:
The exercise of our right of self-defence is labelled aggression com-

mitted by Egypt and Syria. The representative of Israel has been
hammering away on that point and constantly repeats it, imagining
that he will be believed. Egypt and Syria are defending themselves.
We are not in Israeli territory; we are on our territory, our national
territory.79
Egypt depicted Israel’s 1967 aggression as of a continuing character:

“The Arab people have been the victim of aggression since 1967, not the
aggressors.”80
Yugoslavia pointed to a then recent declaration in support of Egypt and
Syria by the Conference of Heads of State or Government of the Non-
aligned Countries, which had met in Algiers a few weeks earlier.81 The
Conference adopted a resolution in which it stated that it
Demands the immediate and unconditional evacuation by the Israeli

forces of all Arab territories occupied since June 1967
Reaffirms its total and effective support to the lawful efforts of
Egypt, Syria and Jordan in their lawful struggle to regain, by all
means, all their occupied territories.82
The Need to Utilize the Security Council
Article 51 of the Charter of the United Nations may pose an obstacle,

however, to a state seeking to recapture territory that is occupied. Article
51 subjects the right of self-defense to the role of the Security Council as
protector of international peace. “Nothing in the present Charter,” recites
Article 51, “shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain inter-
national peace and security.”
Article 51 imposes, moreover, an obligation on a state using force in
self-defense to report that use of force to the Security Council. Following
the sentence just quoted from Article 51 comes another:
Measures taken by Members in the exercise of this right of self-

defence shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore interna-
tional peace and security.
Article 51 is directed at use of force across international borders. In

1973, Egypt and Syria were seeking to enter their own territory. Hence
the requirement of seeking help first from the Security Council did not
apply. Even though they asserted that they were entitled to recapture their
occupied territories, they claimed that these new hostilities were initiated
by Israel. Egypt and Syria likely decided to take this approach because
they did not want to be charged with violating the cease-fire resolutions
of 1967. Violation of cease-fire resolutions, however, would not necessarily
constitute a use of force in violation of UN Charter Article 2(4). A cease-
fire can be ordered by the Security Council without regard to the underly-
ing rights of the contending parties. Acceptance by parties of a cease-fire is
not “a free decision by the parties that they will cease to exercise a right or
a privilege to employ force.”83
In the aftermath of the 1967 war, the Security Council merely called for a
cease-fire. It did not even call for a withdrawal of forces to the positions they
held prior to the onset of hostilities. So the Security Council as of 1973 had
not undertaken the measures required under Charter Chapter VII.
The UN Charter puts the Security Council in the role of dealing with
aggression. This is the thrust of Chapter VII of the Charter. But if the
Security Council does not assume that role in a particular situation, an

invaded and occupied state has the right to act on its own.
In the Security Council in 1967, no state other than Israel called Syria
or Egypt out for aggression. Most avoided the issue of legal liability. In
1973, the United Kingdom counseled against “engaging now in attempts
to apportion blame or attribute responsibility. The ultimate verdict,” it
said, “may well be that the basic factor was the frustration of the interna-
tional community in its efforts to bring about that just and lasting peace
in the Middle East of which the promise was held out by Security Council
resolution 242 (1967) nearly six years ago.”84
India too averted to the failure of the Security Council:
What Egypt and Syria are doing now is nothing more than uphold-
ing the provisions of the Charter in asserting their right to self-
defence and to territorial integrity. This right is inherent to every
sovereign State, and if Egypt and Syria have desisted from exercising
this right it was because they had hoped that the Council would find
a peaceful solution.85
The issue of use of force to retake territory occupied by aggression was

never on the table in the Security Council. Each side accused the other of
initiating the hostilities, and the members of the Security Council focused
on finding a solution, not on assessing blame. The view of Ibrahim Shihata,
expressed in 1974, remains accurate:
With such an intransigent Israeli position, encouraged in fact by

the near total support of the U.S. Government and by the acquies-
cence of most other Western powers, little choice was left for Arab
states to regain control over their occupied territories. Egypt and
Syria finally managed, in October 1973, to exercise their territorial
jurisdiction by employing forcible measures limited respectively to
Egyptian and Syrian territories and aimed solely at restoring control
over such territories. Governmental action taken by a state within its
own territory for the restoration of legal order disrupted by unau-
thorized acts of others certainly falls within the inherent territorial
jurisdiction of each sovereign state.86
An argument that Israel had a right to remain in the territory it took

in 1967, hence that the 1973 attack by Syria and Egypt was unlawful, was
made by Eugene Rostow.87 He based his argument on UN Security Coun-

cil Resolution 242. Rostow read Resolution 242 as requiring Israel to with-
draw from the Golan Heights and Sinai Peninsula only if the Arab states
made peace with Israel.88 By 1973 no Arab state had done so.
That argument ignores the fact that Resolution 242 was not adopted in
UN Charter Chapter VII, rendering it a recommendation only. But even
if it could be deemed a resolution legally binding the states concerned,
Resolution 242, despite its ambiguity, did not condition an Israeli obliga-
tion to withdraw on acceptance of Israel by the Arab states. Resolution 242
did expressly call for Israel’s withdrawal. Resolution 242’s provision that
Rostow viewed as quid pro quo for an Israeli withdrawal was too vague
to be deemed to reflect a legal obligation. That clause spoke of the right
of all states in the area to live in peace and for acknowledgment of their
statehood.
Israel’s reliance on Resolution 242 was, moreover, questionable as a
basis for continuing to hold the Golan Heights and Sinai Peninsula, since
Israel, as we saw, had not shown itself receptive to Jarring’s efforts.89
Whatever might have been the intent behind Resolution 242, the
1973 membership of the Security Council, in the draft resolution that was
defeated only by the U.S. veto, made clear that the legal obligation in the
situation was that of Israel to withdraw.
The illogicality of Rostow’s view is reflected in the way in which he
characterized the hostilities. He called them “the Arab attack on Israel,”
which of course it was not. Egypt and Syria were attacking not into Israel
but into their own territory.90
Nathan Feinberg argued that the action of Egypt and Syria could not be
self-defense. But he reached that conclusion by arguing first that Israel had
itself acted in self-defense in 1967.91 He then said that even if Israel were
deemed to have acted aggressively in 1967, the action of Egypt and Syria
in 1973 would still not constitute self-defense because self-defense, under
Charter Article 51, is available only until the Security Council acts. Fein-
berg said that the cease-fire resolutions of 1967 constituted such action.
That view overlooked the Security Council’s inaction for seven years in
dealing with the consequences of the 1967 war. Hans Kelsen had cogently
argued in 1950 that states could not be expected to forego self-help if the
Security Council did not effectively exercise the monopoly in use of force
that the Charter gave it. “If the constitution of an international organiza-
tion abolishes or restricts the principle of self-help established by general
international law,” Kelsen wrote,
it must guarantee . . . that, to the same extent the individual Mem-

ber is deprived of its right of self-help, enforcement action of the
Organisation will actually take place. Otherwise the Organisation
constitutes, instead of an improvement, a dangerous deterioration
of the legal status under general international law.92
Force to Recover Territory
Security Council Resolution 338 did not condemn Egypt or Syria for
aggression. It did not even condemn them for violating the 1967 cease-
fire. It merely called for a new cease-fire. The majority of members of the
Security Council understood the situation of Egypt and Syria and declined
to place the onus on them.
A state whose territory is occupied by military force has been deemed to
enjoy a right to use military force in response. In 1950, the Security Coun-
cil characterized the military action that broke out in Korea as an invasion
of South Korea by North Korea. In response, the Security Council cited a
request from South Korea (Republic of Korea) and called on UN member
states “To assist the Republic of Korea in defending itself against armed
attack.”93 South Korea thus was regarded as within its rights to use force to
reverse the occupation of its territory.
In 1956, Israel invaded into Egypt and occupied Egyptian territory in
the Sinai Peninsula. In the Security Council, the United States proposed a
resolution that, as it explained, noted “the fact that is not disputed, namely,
the fact of Israel military penetration deep into Egyptian territory, and the
fact that this constitutes a violation of the Armistice Agreement.” This was
a reference to a cease-fire dating from 1949 between Israel and Egypt.94
Yugoslavia, supporting the US draft resolution, characterized Israel’s action
against Egypt as “aggression.”95 So too did the Soviet Union.96 It was this
history of Israeli aggression against Egypt that led Secretary of Defense
Schlesinger, as we saw, to surmise on October 6, 1973, albeit incorrectly,
that it was Israel that initiated the hostilities that began on that day.
The United States, in its 1956 draft resolution, called for a withdrawal
by Israel to the 1949 armistice lines. The United States titled its request for
a Security Council resolution “Steps for the Immediate Cessation of the
Military Action of Israel in Egypt.”97 The draft resolution did not call for a
cease-fire. Rather it called on Israel to withdraw.98 The draft resolution did
not focus on action by Egypt in response to Israel’s. But by its characteriza-
tion of Israel’s action, the draft resolution assumed that Egypt was within
its rights to oppose by force the occupation by Israel of Egyptian territory.

The US draft resolution gained seven votes in the Security Council, failing
only because of the vetoes cast by the United Kingdom and France, both
of which were party to Israel’s invasion of Egypt.99
The Security Council would again deal with invasion and occupation
in 1990, when Iraq invaded and occupied Kuwait. Responding, the Secu-
rity Council affirmed “the inherent right to individual or collective self-
defence, in response to the armed attack by Iraq against Kuwait, in accor-
dance with Article 51 of the Charter.”100 When that occupation continued
for three months, the Security Council adopted a resolution reaffirming
the prior resolution and “Authoriz[ing] Member States co-operating with
the Government of Kuwait” to enforce that prior resolution.101 The latter
resolution reads as a recognition of Kuwait’s own right of self-defense and
of its right, further, to seek assistance from other states under the concept
of collective self-defense.102 The Security Council thus regarded Kuwait,
by virtue of its right of self-defense, as being entitled to use military force
to recover its territory that had been occupied.
Conclusion
In the Korea situation, in the 1956 Sinai situation, and in the 1990 Kuwait
situation, no cease-fire, to be sure, had been ordered by the Security Coun-
cil. That fact is not, however, relevant to the right of an occupied state to
use force to recover its territory. The quip of Ambassador Dobrynin per-
haps best characterizes the approach that was taken by the international
community, as represented by the Security Council, in reaction to the 1973
hostilities.
The situation in which Egypt and Syria found themselves was not
unlike that of the DRV. In both instances, the United States was imped-
ing control of a country’s territory by supporting a party that was holding
a sector. In Vietnam, France had withdrawn as the colonizing power in
1954 in favor of an indigenous administration. France, with United States
backing, had put in place an administration based in the southern part of
Vietnam. As a condition for its withdrawal, France required the DRV to
withdraw forces from south of a line along the 17th parallel, below which
its favored administration would have control.103 An additional aspect of
the withdrawal agreement was that a countrywide election would be held
in 1956. Thus Vietnam was deemed by all parties to be a single country, but
with two administrations for a two-year period.
The southern administration, the RVN, with an army it set up called the
Army of the Republic of Vietnam, refused to hold the countrywide elec-
tions, at which point the DRV, along with allied forces south of the 17th
parallel, undertook to take over the southern sector by force.104 The DRV
thus was in a posture similar to that of Egypt and Syria in that a sector of
their territory was being held by force of arms. In each instance, the United
States stood behind the party that was impeding control. In each instance,
the United States kept the UN Security Council from condemning the
party that was blocking the retaking of territory (Israel in the case of the
1973 war, the United States in the case of Vietnam). In each instance, the
international community regarded the use of force as lawful, as an effort
to retake territory being held, directly or indirectly, by a foreign element.
It is difficult to tell a state whose territory is occupied that it cannot
recapture it, particularly if the Security Council has shown itself unable to
deal with the situation. Here the Security Council, as result of a veto cast
by the United States, had only two months earlier shown itself unable to
adopt even a resolution condemning Israel’s occupation, much less a reso-
lution calling for international action to reverse the occupation. In these
circumstances, one can only conclude that Egypt and Syria were justified
in their action. If one state invades another and the Security Council calls
for a cease-fire but does not effectively reverse the invasion, the victim state
can hardly be required to sit on its hands in perpetuity.
NOTES
1. For an overview, see Ahmad Abu al-Ghayt, Witness to War and Peace: Egypt,
the October War, and Beyond (Cairo: American University in Cairo Press, 2018).
2. UN Security Council Res. 234, June 7, 1967, UN Doc. S/RES/234.
3. Israel, Knesset, Golan Heights Law, December 14, 1981. In 2019, Israel
would add Jewish habitation of the Golan in ancient times. UN Security Council,
Verbatim Record March 27, 2019, 18, UN Doc. S/PV.8495. Victor Kattan, “US
Recognition of Golan Heights Annexation: Testament to Our Times,” Journal of
Palestine Studies 48, no. 3 (Spring 2019): 79, 83.
4. Yoram Dinstein, War, Aggression and Self-Defence (New York: Cambridge
5. Barry Feinstein, “Self-Defence and Israel in International Law: A Reap-
praisal,” Israel Law Review 11 (1976): 562.
6. Resolutions 233, 234, 235, 236, June 1967.
7. UN Security Council, Verbatim Record June 5, 1967, 1, UN Doc. S/
PV.1347.
PV.1347.
PV.1347.

PV.1348.
11. UN Security Council Verbatim Record June 13, 1967, 21, UN Doc. S/
PV.1358.
PV.1358.
PV.1352.
14. UN Security Council Res. 233, June 6, 1967, UN Doc. S/RES/233.
15. UN Security Council Verbatim Record June 6, 1967, 5–6, UN Doc. S/
PV.1348.
PV.1348.
PV.1352.
18. UN Doc. S/7951/Rev.2. The draft also condemned Israel for aggression
against Jordan.
PV.1360.
20. UN General Assembly Verbatim Record June 19, 1967, 12, UN Doc. A/
PV.1526.
PV.1526.
PV.1539.
PV.1530.
PV.1538.
PV.1530.
26. UN General Assembly Verbatim Record June 29, 1967, 7–8, UN Doc. A/
PV.1541.
27. UN General Assembly Verbatim Record July 4, 1967, 15–16, UN Doc. A/
PV.1548.
28. UN Security Council Res. 242, November 22, 1967, UN Doc. S/RES/242.
29. Ariyeh Tzimuki, “We will let the Vatican have some control over the holy
places in Jerusalem,” Yediot aharonot (Tel Aviv, July 7, 1967): 1.
30. “Une nouvelle interview de M. Eshkol fait apparaître l’existence de diver-
gences entre le général Dayan et lui: Le premier ministre admet que les Israëlis ont
tiré les premiers,” Le Monde (Paris, July 9–10, 1967): 2.
31. “Admission on Attack,” Times (London, July 8, 1967): 3.
32. Shabtai Rosenne, “Directions for a Middle East Settlement—Some Under-
lying Legal Problems,” Law and Contemporary Problems 33 (1968): 55.
33. Eric Rouleau, “Le général Rabin ne pense pas que Nasser voulait la guerre,”
Le Monde (February 29, 1968): 1.
34. Mordecai Bentov, “For Whom and Why Are the Settlements Necessary?,”
Al-Hamishmar (Kibbutz Artzi, April 14, 1972): 3, translated in Amnon Kapeliouk,

“Israël était-il réellement menacé d’extermination?” Le Monde (June 3, 1972): 4.
35. “Suez all quiet as Egypt, Israel cease fighting,” Boston Globe (August 8, 1970):
1.
36. The Situation in the Middle East, UN General Assembly Res. 2628, Novem-
ber 4, 1970, UN Doc. A/RES/2628.
37. Further Report by the secretary-general on the activities of the special rep-
resentative to the Middle East, March 5, 1971, UN Doc. S/10070/Add.2, ¶12.
40. Report of the secretary-general under Security Council Resolution 331
(1973) of April 20, 1973, May 18, 1973, 40, UN Doc. S/10929.
41. UN Security Council Verbatim Record July 26, 1973, 15, UN Doc. S/
PV.1735.
PV.1735.
PV.1735.
PV.1735.
PV.1735. China did not participate in the vote.
46. Letter dated October 6, 1973 from the permanent representative of the Syr-
ian Arab Republic to the United Nations addressed to the president of the Security
Council, October 6, 1973, UN Doc. S/11009, Security Council Official Records,
28th Year, Supplement for October, November and December 1973: 70.
47. Letter dated October 6, 1973, from the Ministry for Foreign Affairs of Egypt
to the president of the General Assembly, October 6, 1973, 1, UN Doc. A/9190.
48. UN Security Council Verbatim Record October 9, 1973, 5, UN Doc. S/
PV.1744.
49. UN Security Council Verbatim Record, October 8, 1973, 4, UN Doc. S/
PV.1743.
50. Minutes of Washington Special Actions Group Meeting, White House Situ-
ation Room, October 6, 1973, 9:01–10:06 a.m., Foreign Relations of the United States
1969–1976 25, 295 [hereinafter FRUS].
51. Minutes of Washington Special Actions Group Meeting, White House Situ-
ation Room, October 6, 1973, 9:01–10:06 a.m., FRUS 1969–1976 25, 303.
52. Mohammed Abdel Ghani El-Gamasy, The October War (Cairo: American
University in Cairo Press, 1993), 191–92.
53. Mohamed Heikal, The Road to Ramadan (New York: Quadrangle/The New
York Times Book Co., 1975), 18–35.
54. Memorandum from William B. Quandt and Donald Stukel of the National
Security Council Staff to Secretary of State Kissinger, Washington, October 8,
1973, FRUS 1969–1976 25, 366.
55. Supplemental information received by the secretary-general on the situa-
tion in the Middle East, UN Doc. S/7930/Add.2141, October 6, 1973, Security

Council Official Records, 28th Year, Supplement for October, November and December
1973: 3.
56. Supplemental information received by the secretary-general on the situa-
tion in the Middle East, UN Doc. S/7930/Add.2143, October 6, 1973, Security
Council Official Records, 28th Year, Supplement for October, November and December
1973: 4.
57. Minutes of Washington Special Actions Group Meeting, Washington,
October 6, 1973, 9:10–10:16 a.m., FRUS 1969–1976 25, 304.
October 6, 1973, 9:10–10:16 a.m., FRUS 1969–1976 25, 304.
59. Transcript of Telephone Conversation between Secretary of State Kissinger
and the Soviet Ambassador (Dobrynin), October 6, 1973, 9:35 a.m., referencing an
earlier telephone conversation between Kissinger and Dobrynin the same day at
9:20 a.m., FRUS 1969–1976 25, 308.
60. Transcript of Telephone Conversation between Secretary of State Kissinger
and the Soviet Ambassador (Dobrynin), Washington, October 6, 1973, 7:20 p.m.,
FRUS 1969–1976 25, 319–20.
61. Memorandum of Conversation, US Department of State, Washington DC,
October 7, 1973, FRUS 1969–1976 25, 341.
62. Transcript of Telephone Conversation between President Nixon and Secre-
tary of State Kissinger, October 7, 1973, 10:18 a.m., FRUS 1969–1976 25, 345.
63. Henry Kissinger, Years of Upheaval (New York: Little, Brown, 1982), 471.
64. Transcript of Telephone Conversation between President Nixon and Secre-
tary of State Kissinger, Washington, October 8, 1973, 2:35 p.m., FRUS 1969–1976
25, 373.
October 7, 1973, 6:06–7:06 p.m., FRUS 1969–1976 25, 357.
66. Robert Scheer, “Tonkin—Dubious Premise for War,” Los Angeles Times,
April 29, 1985: A1.
67. David Rodman, Israel in the 1973 Yom Kippur War: Diplomacy, Battle, and Les-
sons (Eastbourne, UK: Sussex Academic Press, 2017), 41.
68. Abdallah Frangi, The PLO and Palestine (London: Zed Books, 1983), 135.
Shaul Bartal, “Yom Kippur War Influence at the Recognition and the Palestinian
Problem,” History Research 5, no. 4 (2015): 255, 258.
69. “Pullback Accord Signed: Kissinger, Sadat Turn to Syrians,” Washington Post,
January 19, 1974: A1. Letter dated January 18, 1974, from the secretary-general
to the president of the Security Council: Annex: Egyptian-Israeli Agreement on
disengagement of forces in pursuance of the Geneva Peace Conference, UN Doc.
S/11198 (1974), Security Council Official Records, 29th Year, Supplement for Janu-
ary, February and March 1974: 84.
70. “Israel and Syria Accept Accord for Disengaging on Golan Front,” New York
Times, May 30, 1974, 1. Report of the secretary-general concerning the Agree-
ment on Disengagement between Israeli and Syrian Forces, May 30, 1974, Annex I:
Agreement on Disengagement between Israeli and Syrian forces, UN Doc. 11302/
Add.1 (1974), Security Council Official Records, 29th Year, Supplement for April,
May and June 1974: 144.
71. Kissinger, Years of Upheaval, 460.

73. Backchannel Message from the Egyptian Presidential Adviser for National
Security Affairs (Ismail) to Secretary of State Kissinger, Cairo, October 7, 1973,
FRUS 1969–1976 25, 347.
75. Hassan el Badri, Taha el Magdoub, Mohammed Dia el Din Zohdy, The
Ramadan War, 1973 (New York: Hippocrene Books, 1978), 16–18, 45.
76. UN Charter, art. 51.
77. Law of Belligerent Occupation (Ann Arbor, MI: Judge Advocate General’s
School, 1945), 102. Convention relative to the Treatment of Prisoners of War,
August 12, 1949: art. 4(A), UNTS 75, 135.
PV.1744.
PV.1745.
PV.1745.
PV.1744.
82. Resolution on the Middle-East Situation and the Palestine Issue, NAC/
ALG/CONF.4/F/Res,2, September 9, 1973, in Documents of the Conference of
Heads of State or Government of Non-Aligned Countries, Algiers, 5 to 9 Septem-
ber 1973, reproduced in UN Doc. A/9330, November 22, 1973: 35.
83. R. R. Baxter, “Armistices and other Forms of Suspension of Hostilities,”
Académie de Droit International, Recueil des Cours 1976-I (Leyden: A. W. Sijthoff,
1977), 353, 384.
PV.1743.
PV.1744.
86. Ibrahim Shihata, “Destination Embargo of Arab Oil: Its Legality under
International Law,” American Journal of International Law 68 (1974): 591, 608.
87. Curiously, Eugene Rostow was the brother of Walter Rostow, who, as Presi-
dent Johnson’s aide during the 1967 Middle East hostilities, was aware that Israel
initiated hostilities using the pretext of an Egyptian attack on three Israeli settle-
ments. Walworth Barbour, “Telegram From the Embassy in Israel to the Depart-
ment of State, June 5, 1967,” Foreign Relations of the United States 1964–1968 19, 302
note 1. Eugene Rostow himself was under secretary for political affairs during the
1967 hostilities, which were understood within the Department of State to have
been initiated by Israel without legal justification. Dean Rusk, As I Saw It (New
York: W. W. Norton, 1990), 386. Memorandum for the Record, November 17,
1968, Foreign Relations of the United States 1964–1968 19, 287.
88. Eugene Rostow, “The Illegality of the Arab Attack on Israel of October 6,
1973,” American Journal of International Law 69 (1975): 272, 276–77.
89. Alfred Hotz, “Legal Dilemmas: The Arab-Israel Conflict,” South Dakota Law
Review 19 (1974): 242, 269.
90. Rostow, “The Illegality of the Arab Attack on Israel,” 272.

91. Nathan Feinberg, “The Legality of the Use of Force to Recover Occupied
Territory,” Israel Law Review 15 (1980): 160, 171.
92. H. Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental
Problems (New York: Praeger, 1950), 270.
93. UN Security Council Res. 84, July 7, 1950, UN Doc. S/RES/84.
94. UN Security Council, Verbatim Record October 30, 1956, UN Doc. S/
PV.749: 6.
PV.749: 7.
PV.749: 8.
97. Letter dated October 29, 1956, from the representative of the United States
of America addressed to the president of the Security Council, UN Doc. S/3706,
October 30, 1956.
98. United States of America, draft resolution, UN Doc. S/3710, October 30,
1956.
PV.749: 31.
100. UN Security Council Res. 661, August 6, 1990, UN Doc. S/RES/661.
101. UN Security Council Res. 678, November 29, 1990, UN Doc. S/RES/678.
102. Oscar Schachter, “United Nations Law in the Gulf Conflict,” American Jour-
nal of International Law 85 (1991): 452, 459–60.
103. Mitchell K. Hall, The Vietnam War (New York: Routledge, 2018), 10–13.
104. Hall, The Vietnam War, 14–15.
FIVE
Revolutionary War and the Development

of International Humanitarian Law
Amanda Alexander
The distinction between civilians and combatants and the protection of

civilians are perhaps the central precepts of international humanitarian law
today. In the International Committee of the Red Cross’ (ICRC) list of
customary rules of IHL, the principle of distinction is Rule 1.1 In Rule 4
combatants are defined as members of the armed forces and in Rule 5 civil-
ians are defined as those who are not members of the armed forces.2 Under
Rule 106, combatants must identify themselves preparatory to attack to be
eligible for prisoner of war status.
These Rules reflect the provisions of the 1977 Additional Protocol I
to the Geneva Conventions. As such, the Protocol’s provisions can now be
considered customary, as well as treaty, law. Yet when they were negotiated,
during the 1974–1977 Diplomatic Conferences on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed
Conflicts, many of these sections were highly contested. The provisions
that resulted from these years of negotiations were viewed at the time by
many of the parties as flawed compromises. Moreover, the ambiguous defi-
nition of combatants and civilians contained within the Protocol continues
to be problematic—a cause for ongoing explanations and concerns.3
In this chapter, I address the way the Vietnam and Arab-Israeli wars
informed some of the positions on these issues and ultimately contributed
to the awkward shape of the provisions. These were not the only conflicts
112
Revolutionary War and the Development of International Humanitarian Law 113
to influence the drafting of the Protocols, but Vietnam served as the arche-
type of the contemporary conflicts that had prompted the ICRC to draft
new laws. When the ICRC began calling for new laws of armed conflict it
was concerned by military developments, such as aviation, that had “almost
wiped out” the fundamental distinctions between combatants and civil-
ians.4 It was also troubled by the rise of a “truly enormous tidal wave of
guerrilla activity” that had not been anticipated by earlier conventions.5
The Vietnam War was the consummate example of these concerns. More-
over, the Vietnam War informed the drafting process by challenging the
traditional Western understanding of the laws of armed conflict. The revo-
lutionary writings on people’s war, put into practice in Vietnam, shaped a
new language and paradigm of a just war, while advocating for the legiti-
macy of guerrilla warfare.
This language was adopted by Palestinian movements, which presented
their struggle as analogous to the Vietnamese people’s war. Support for the
Palestinians and the Palestine Liberation Organization led to a series of
United Nations resolutions, proclaiming the rights of national liberation
movements and their fighters in a quasi-legal language that would later be
repeated at the Diplomatic Conferences.
There was also growing support for the Palestinian and the Vietnam-
ese resistance in the West. Wars against imperial powers were increasingly
accepted as just and the means used to oppose them seemed shocking.
Popular and academic commentary in the West questioned the lawfulness
of counterinsurgency techniques, in particular attacks on civilians. These
discourses were reflected in the debates at the Diplomatic Conference and
ultimately in the provisions of the Additional Protocol I.
The Traditional Laws of Armed Conflict
In order to appreciate the changes wrought by the Additional Protocol I,

it is necessary to understand the legal position before the conferences of
the 1970s. Although the ICRC and other commentators claimed that there
were longstanding principles protecting civilians and a regrettable lack of
law concerning guerrilla warfare,6 this was something of a misrepresenta-
tion of the existing state of the laws of armed conflict.7
Guerrilla warfare and people’s wars, or “irregular warfare,” were famil-
iar concerns in both military and legal circles from the nineteenth cen-
tury. The term “guerrilla” dates back to the Spanish irregular forces in the
Napoleonic wars,8 but guerrilla tactics have been used by both regular and
irregular forces for much longer.9 The German experience in the Franco-
Prussian war and the British experience in the Anglo-Boer war were per-
haps the most pivotal in shaping the understanding of irregular warfare
in the late nineteenth century and informing the attitudes of the military
states at the Hague Conferences in 1899 and 1907.10
Experience with these wars meant that during the Hague Peace Confer-
ences, most delegates agreed that there was a strong likelihood that citizens
would take up arms. For some delegates, in particular the representatives
of Switzerland and Belgium, this was an admirable display of patriotism.11
Colonel Künzli from Switzerland spoke proudly of his people’s fight for
independence and freedom in levées en masse. He emphasized that not “only
able-bodied men but also old men, children and women took part in the
battles.”12 The response of British general Sir John Ardagh was to sug-
gest adding an article that stated that the Convention should not be read
as diminishing or suppressing the right that belongs to the population of
an invaded country to fulfill its duty of opposing to the invaders, by every
legitimate means, the most energetic patriotic resistance.13
Germany and the Netherlands, however, opposed this approach. Ger-
many acknowledged the value of patriotism, but stated that nothing pre-
vented patriots from entering the army, from organizing themselves prop-
erly with a leader and a distinctive sign.14 Moreover, Germany pointed out
that soldiers too needed to be thought of:
[S]oldiers also are men, and have a right to be treated with human-
ity. Soldiers who, exhausted by fatigue after a long march or a battle,
come to rest in a village have a right to be sure that the peaceful
inhabitants shall not change suddenly into furious enemies.15
This dispute was resolved by the Martens clause. Fyodor Martens, pre-
siding over the Second Commission at the First Hague Peace Conference,
made a declaration that while it was desirable that the usages of war should
be defined and regulated, it would not be possible to agree on all cases.16
Therefore, in cases not agreed upon, populations and belligerents should
“remain under the protection and empire of principles of international law,
as they result from the usages established between civilized nations, from
the laws of humanity, and the requirements of the public conscience.”17
The clause, Martens suggested, would leave the door open to patriotic
acts, since “a heroic nation is, like heroes, above codes, rules, and facts.”18
This proposition allayed some of Belgium’s fears about the treatment of
irregular fighters. However, in practice, it meant that Germany and the
other Great Powers had their way in this debate.19 Indeed, Martens’s state-
ment suggests that any irregular fighting would take place outside law and
in the face of law.
Little was added to this debate at the Second Peace Conference, besides
the further insistence by Germany that members of a levée en masse bear
arms openly.20 The result was that the 1907 Hague Convention required
that legitimate belligerents must distinguish themselves at all times, must
carry arms openly, must follow a responsible command, and must conduct
their operations in accordance with the laws and customs of war.21 Article 2
of the Hague regulations stated that members of a levée en masse would be
regarded as belligerents if they rose up before being occupied, carried arms
openly, and respected the laws and customs of war. There was no right to
resistance once occupied. This was made clear at the Conference. As Ger-
many pointed out, occupied inhabitants could not be allowed to attack the
occupier’s lines of communication because without lines of communica-
tion an army cannot exist.22 Any provisions that protected citizens would
depend on their being peaceful. If not, the German delegate continued,
most of the guarantees lose their reason for existence.23 This is also made
clear in Martens’s writings.24
The 1949 Geneva Conventions did little to change these requirements,
except for extending them to organized resistance movements.25 Members
of such movements still had to distinguish themselves.26 Indeed, the ICRC
commentary on the Geneva Convention stresses the importance of a dis-
tinctive sign:
[F]or partisans a distinctive sign replaces a uniform; it is therefore

an essential factor of loyalty in the struggle and must be worn con-
stantly, in all circumstances. During the Second World War, this
rule was not always respected by the resistance organizations but
there should be no room for doubt on this matter.27
Thus irregular warfare had been comprehensively considered and regu-

lated before the 1970s and the law was clear. Combatants were expected to
distinguish themselves. Citizens who became involved in the war outside
these strictures were liable to be executed, while the rest of the population
could be subjected to reprisals.28
In contrast, the protection of civilians had not been clearly discussed or
provided for. There was little protection in the Hague Convention. The
only clear provision can be found in Article 25, which prohibits the bom-
bardment of undefended towns, villages, dwellings, or buildings. Article
26 requires the attacking force to warn the besieged city of an impend-

ing bombardment if possible, and Article 27 encourages attackers to
avoid damaging buildings dedicated to religion, art, science, or charitable
purposes; historic monuments; hospitals; and places where the sick and
wounded are collected.
Besides these provisions, the noncombatant population was exposed to
the exigencies of war. There was no requirement to allow noncombatants—
“useless mouths”—to leave a besieged town.29 Civilians could be killed by
bombardment or starvation.30 Whole regions could be devastated if it was
necessary for military success.31 As aerial warfare became a possibility, it
was understood that it was likely to be used to kill civilians, or at the least
strike at their morale.32 Attempts to limit the use of aerial warfare failed in
the 1920s and again in the 1950s.33 It was generally accepted that citizens
of an enemy state are enemies too and if it was possible to bring a war to a
speedier conclusion by harming them, then it should be done so as a neces-
sity of war.34
The 1949 Geneva Convention IV was drafted to provide protection for
civilians, but it still did little to protect civilians during warfare. It did not
include any new constraints on aerial warfare, reprisals against civilians,
scorched earth tactics, or the starvation of civilians. Rather it focused on
the protection of civilians in occupied territories; its goal was to prohibit
the more extreme depredations practiced by the Nazi regime against occu-
pied populations. Thus the 1949 Convention insists that occupied civil-
ians should be humanely treated, that their persons, family rights, religious
practices, manners and customs should be respected.35 This protection is
dependent on civilians remaining passive. Article 5 states clearly that those
who engage in hostile activities will lose the rights of protected persons.
Moreover, even the protection offered to passive civilians is contingent on
military imperatives. After listing the rights of protected persons, Article
27 acknowledges that the parties to the conflict may take such measures of
control and security in regard to protected persons as may be necessary as
a result of the war. It also, while prohibiting mass forcible transfers, accepts
that an occupying power may undertake total or partial evacuation of a
given area if the security of the population or imperative military reasons
so demand.36
The 1949 Convention envisages that governments may manage their
own populations in the same manner. It provides for parties to set up sepa-
rate, “neutralized” zones to shelter noncombatants.37 The commentary
explains this is only for noncombatants—civilians taking part in hostilities
will be naturally excluded.38 Thus the protection offered to civilians by the
1949 Geneva Convention is predicated on a clear distinction between civil-

ians and combatants in both legal and spatial terms.
These provisions reflect a common military strategy that had been used
before and after the drafting of these provisions. The separation of “civil-
ian” populations from the combatants that they might support—whether
willingly or under duress—had been undertaken during a range of conflicts
from the end of the nineteenth century onwards. The destruction of Boer
farms and the relocation of their inhabitants in concentration camps is one
of the most familiar examples.39 However, there were similar movements of
civilians during in the Spanish-American War in Cuba,40 and in the Philip-
pines during the American intervention.41 Later, similar approaches were
taken by Japan in Manchuria,42 Portugal in Angola,43 and Britain in Malaya
and Kenya.44 In all these cases, the aim was to separate guerrillas from
any support from the population.45 In South Vietnam, President Diem
started moving rural communities to constructed agrovilles from 1959, in
an attempt to separate peasants from revolutionaries.46 Later this turned,
with British and American input, into the Strategic Hamlet program.47
Under this system, thousands of fortified hamlets were constructed. The
aim, again, was to concentrate and shelter the rural population in hamlets,
relocating villagers when necessary. It was hoped the program would pro-
duce villagers who actively supported the South Vietnamese government,
while cutting off support to the guerrillas.48
This method of moving and resettling populations in camps and similar
institutions has been recently described by a number of scholars as a tech-
nique of liberal empire—a biopolitical attempt to govern, domesticate, and
deny political agency to colonial populations.49 Although this description
seems to rather overstate the liberal aspect of this strategy, it does seem
clear that the intention of these laws was to limit political and military
agency through a juridical and spatial separation of civilian and combatant.
Revolutionary War in Vietnam and Palestine
Thus despite experiences with irregular warfare, the prevailing idea of war,
the theories, the war games,50 and the laws of war were shaped by an ideal
of orderly soldiers in uniform, of citizens subdued, separated, and demili-
tarized. Over the course of the twentieth century, however, an alternative
imaginary of war and approach to law was formulated and articulated—an
approach that was exemplified by the war in Vietnam and embraced by
Palestinian movements.
The alternative model was a revolutionary people’s war, a war where

there was no separation between people and army, a war that unapologeti-
cally employed guerrilla tactics. As I have argued, guerrilla warfare was an
old technique, but during this period it became associated with revolution-
ary ideology.51 Mao’s writings, and his success in China, were one of the
main sources of this alternative approach. It provided a model for a revo-
lutionary people’s war that was referenced by a variety of movements that
sought to overturn imperial or oppressive governments—even when it may
not have been entirely appropriate.52 Principles from the Maoist model
were followed in Malaya, Burma, Algeria, Rhodesia, and Cuba.53 One of
the clearest associations, however, was with the communist movement in
Vietnam. Truong Chinh, the secretary general of the Indochinese Com-
munist Party, and Vo Nguyen Giáp, commander in chief of the Viet Minh
and minister of the interior in the Democratic Republic of Vietnam, wrote
their own accounts of people’s war that showed the influence of Maoist
theory.54 The success of the Vietnamese strategy further inspired other
movements, including Palestinian organizations. After the 1967 war shat-
tered Palestinian hopes for liberation through traditional warfare,55 Pales-
tinian movements explicitly characterized their struggle as a revolutionary,
people’s war in the manner of Vietnam.56 The communist Popular Front
for the Liberation of Palestine (PFLP) followed Mao’s teachings closely.
Fatah took a less rigorous and more eclectic approach to revolutionary
theory,57 but it echoed the general themes of the Maoist approach.58 This
was the case even though, as was noted at the time, there were significant
differences between the Chinese or Vietnamese and Palestinian conditions.
Some observers also found it difficult to reconcile Palestinian tactics with
the prevailing understanding of guerrilla warfare.59 Nevertheless, by con-
ceptualizing the Palestinian struggle as a “second Vietnam,”60 it became
situated within the global movement that was reshaping the vision of jus-
tifiable warfare. In time, the Palestinian arguments would strengthen and
develop that vision.
Mao’s model for revolutionary war was developed in several writings
from the 1930s.61 It adapted Marxist-Leninist theory to Chinese condi-
tions by emphasizing the role of the peasantry in a prolonged people’s
war.62 Mao’s strategy moved through three phases: the mobilization of the
peasantry; the gaining of their support in a people’s war employing guer-
rilla strategies; and finally the move toward conventional warfare.63
Mao, his general Lin Piao, Giáp, and Truong Chinh all stressed that the
first phase, the mobilization of the people, was essential for victory.64 Lin
Piao attributed Mao’s victories to the support of the people—“the fullest
mobilization of the basic masses as well as the unity of all the forces that
can be united.”65 Giáp described the war in Vietnam in the same way:
The war of liberation of the Vietnamese people proves that, in the

face of an enemy as powerful as he is cruel, victory is possible only
by uniting the whole people within the bosom of a firm and wide
national united front based on the worker-peasant alliance.66
The importance of the population had led Mao to introduce rules and
discipline to avoid alienating the people and to maintain a supportive and
even symbiotic relationship between the people and the troops.67 Mao says,
“It is only undisciplined troops who make the people their enemies and
who, like the fish out of its native element, cannot live.”68 Lin Piao writes:
Our armymen strictly observed the Three Main Rules of Discipline

and the Eight Points for Attention, (2) carried out campaigns to “sup-
port the government and cherish the people,” and did good deeds
for the people everywhere. They also made use of every possibility
to engage in production themselves so as to overcome economic dif-
ficulties, better their own livelihood and lighten the people’s burden.
By their exemplary conduct they won the whole-hearted support of
the masses, who affectionately called them “our own boys.”69
The Palestinian movements also emphasized that the support of the

population would be their greatest advantage;70 the masses were consid-
ered to be “a revolutionary power capable of liquidating direct colonialism
and occupation.”71 The overriding need to gain the support of the popula-
tion meant, for the communist PFLP, overlooking class differences and
engaging even the petit bourgeois class.72
Yet the role of the people went far beyond mere support. In this image
of revolutionary war there is no necessary separation between civilian roles
and combatant roles; it is possible and appropriate to be both. As Mao
writes:
[T]here are those who say: “I am a farmer,” or, “I am a student”;

“I can discuss literature but not military arts.” This is incorrect.
There is no profound difference between the farmer and the sol-
dier. You must have courage. You simply leave your farms and
become soldiers. That you are farmers is of no difference, and if
you have education, that is so much the better. When you take
your arms in hand, you become soldiers; when you are organized,
you become military units.73
Or, as Truong Chinh puts it: “When the enemy comes, we fight, when he
goes, we plough.”74
This approach disavows the controlled and passive population imag-
ined by the Geneva Conventions, limited to peaceful pursuits. Such an
oppressed class, Giáp writes, citing Lenin, only deserves to be treated as
slaves if they do not choose to learn to use arms.75 Indeed, for the Palestin-
ian movements, the transformation of Palestinians from refugees to revo-
lutionaries was regarded as “a therapeutic measure toward ‘healing’ Pal-
estinian society,”76 a cultural renaissance. “Armed struggle,” Sayigh writes,
“was the source of political legitimacy and national identity, the new sub-
stance of the ‘imagined community’ of the Palestinians.”77
A people’s war will necessarily involve guerrilla warfare—at least in the
first phases. Revolutionary doctrine described guerrilla tactics as the obvi-
ous weapon of the weak against a more powerful opponent.78 Guerrilla
warfare also allowed for the mobilization of the whole strength of the peo-
ple against the enemy. By using guerrilla tactics, a people’s army could wear
out its opponent until it was possible to transition to conventional warfare.
Guerrilla warfare is the only way to mobilize and apply the whole
strength of the people against the enemy, the only way to expand
our forces in the course of the war, deplete and weaken the enemy,
gradually change the balance of forces between the enemy and our-
selves, switch from guerrilla to mobile warfare, and finally defeat the
enemy.79
Thus there is no suggestion in this literature that guerrilla warfare is

ethically or legally problematic. It is described as a sensible and strategic
approach. Mao declared, “We should honestly admit the guerrilla charac-
ter of the Red Army. It is no use being ashamed of this. On the contrary,
this guerrilla character is precisely our distinguishing feature, or strong
point, and our means of defeating the enemy.”80 Indeed, guerrilla warfare
is more than a pragmatic strategy in this literature. Guerrilla warfare is
depicted as a heroic and romantic enterprise, with an established history.81
The superhuman heroism and bravery and self-sacrifice of guerrilla fight-
ers is emphasized.82 This is a depiction that had resonance both among
subjugated peoples and in the West.83
Moreover, these guerrilla fighters were justified because they were
engaged in just wars, fought against imperialism and unjust aggression.

American imperialism, Lin Piao writes:
is bullying and enslaving various peoples, plundering their wealth,

encroaching upon their countries’ sovereignty and interfering in
their internal affairs. It is the most rabid aggressor in human history
and the most ferocious common enemy of the people of the world.
Every people or country in the world that wants revolution, inde-
pendence and peace cannot but direct the spearhead of its struggle
against U.S. imperialism.84
The fighters in these wars, Giáp states, stand against this to safeguard the
freedom and independence of people.85
The Palestinian movements characterized their cause as part of this
global fight against imperialism, analogous to the Vietnamese struggle.86
Palestinian movements argued that Israel, which had previously been
regarded in many quarters as a beset nation,87 was an imperialist base, car-
rying out a program of colonization and dispossession.88
The crux of the Palestine Problem is . . . the piecemeal conquest

and continued seizure of the entire country by military force. It is
the forcible dispossession and displacement of the bulk of the indig-
enous population, and the subjugation of the rest. It is also the mas-
sive importation of alien colonists to replace the evicted, and to lord
it over the conquered. And it is, the colonization, by the foreign set-
tlers, of both the expropriated private land and the seized national
resources of the overpowered people.89
This particular view of imperialism, and the legitimacy of the strug-

gle against it, achieved growing recognition and repetition in the United
Nations General Assembly as the influence of decolonized nations grew.90
A series of General Assembly resolutions asserted that all peoples have the
right to self-determination,91 especially those fighting alien domination—a
term created to cover the Palestinian situation.92 In 1970, Resolution 2649
specifically condemned the denial of that right to the people of Palestine.
Resolution 3103, in 1973, reaffirmed that colonialism was a crime and that
colonial peoples had the right to struggle against colonial powers and alien
domination, using all necessary means at their disposal. Such conflicts
were, the Resolution stated, to be viewed as international armed conflicts
and combatants were to be accorded the status of prisoners of war.
This understanding of imperialism as a crime that justified the use of

all necessary means of opposition was shown not only in defense of guer-
rilla warfare but also in the debates about terrorism at the United Nations.
When UN Secretary General Kurt Waldheim tried to introduce an item
entitled “Measures to Prevent International Terrorism” in the General
Assembly, following events at the Munich Olympics, it was changed to
include a study of “the underlying causes of those forms of terrorism and
acts of violence which lie in misery, frustration, grievance and despair and
which cause some people to sacrifice human lives, including their own,
in an attempt to effect radical changes.”93 The discussion that ensued was
described by a contemporary as a debate on the Arab-Israeli conflict—a
debate that pitted the alternatives as state terrorism or individual terror-
ism.94 Or, as Chamberlin puts it, a debate that revealed the growing divide
between the proponents of “national liberation” and the enemies of “inter-
national terrorism.”95 The result, as shown in the General Assembly Reso-
lution that set up the ad hoc Committee for International Terrorism, was
a reaffirmation of the legitimacy of the struggle for self-determination and
national liberation.96
The recognition of the Palestinian cause in the General Assembly cul-
minated in 1974, when it invited Arafat to address the General Assembly
and passed Resolutions 3236 and 3237, which reiterated the Palestinian
right to self-determination and granted the PLO observer status at the
United Nations.97 These resolutions gave the arguments for national lib-
eration more legitimacy and a quasi-legal appearance. Nevertheless, tradi-
tional commentators insisted that General Assembly statements were poli-
tics not law,98 and they decried the danger that democracy in the General
Assembly could derail the traditions of international law.99 Even when a
sympathetic lawyer like Abi-Saab asserted the view of decolonized states
that national liberation movements were a form of self-defense and that
insurgent leaders should be recognized,100 he noted that this was a politi-
cal challenge to the existing law.101 As such, the alternative view of war had
garnered a great deal of political legitimacy, but its legal status was still
controversial.
Revolutionary War and the West
The theory of the people’s war provided a stark alternative to the tradi-
tional view of warfare. As such, some of the fundamental aspects of the
doctrine, such as the status of national liberation wars, continued to appear
legally problematic and ethically suspect to Western experts. Neverthe-

less, these conflicts did shape a more subtle shift in the interpretation of
the laws of armed conflict in the West. The bulk of the discussion around
Israel tended to focus on the justice of Israeli and Palestinian claims to
nationhood, territory, and belligerency.102 Nevertheless, there was grow-
ing disapproval of Israeli counterinsurgency tactics—in particular, reprisals
against individuals or states for supporting guerrilla or terrorist actions.
Western international lawyers and states began to question the legality of
such operations, especially when they were directed at civilian objects and
when they appeared disproportionate.103
The anti-Vietnam War movement launched a more comprehensive
attack on the way that the United States was fighting the war, arguing that
it was immoral and possibly illegal. Popular protests and media reports
drew attention to the violence and depravity of the war, the attacks on civil-
ians and children.104 Intellectuals and journalists produced inquiries into
these acts; they staged trials judging the US campaign.105 Although the
influence of the protest movement has been queried,106 it is possible to see
a change in the legal discourse by the start of the Diplomatic Conferences.
Many of the critics of the war echoed the depiction of the people’s war
made in the revolutionary literature. The Vietnamese national resistance
forces were described as being on the side of right, and even of law, defend-
ing the “principles of international law and their right to self-determination,
political independence, territorial integrity and national unity.”107 “The
people of Vietnam are heroic,” wrote Bertrand Russell, “and their struggle
is epic: a stirring and permanent reminder of the incredible spirit of which
men are capable when they are dedicated to a noble ideal.”108
The United States, in contrast, stood as the representative of imperial-
ism or neocolonialism. It was the “universal empire of evil,”109 its rapacious
imperialism made it the “common destroyer of Peace and Justice” and the
greatest threat to the world.110 Critics frequently compared the United
States to Nazi Germany,111 or even suggested it was unprecedented in its
imperialist aggression:
In the course of history there have been many cruel and rapacious
empires and systems of imperialist exploitation, but none before have
had the power at the disposal of the United States’ imperialists.112
After 1967, the characterization of Israel as an imperialist power, akin

to the United States in Vietnam,113 gave the Palestinian cause credibility as
an ethical and just fight.114 Left-wing groups and thinkers who had, until
1967, supported Israel, became supporters of the Palestinians.115 Contem-

poraries partly attributed this shift to the Vietnam War, which had changed
the political consciousness among many Western observers.116
Critics of imperialist war agreed with the revolutionary literature that
the development of a people’s army and the use of guerrilla warfare was the
logical response to such overbearing imperialism. As Sartre explained for
Russell’s staged International War Crimes Tribunal,117 colonialism kindled
the hatred of the civilian population and made civilians potential rebels.
This then determined the characteristics of the struggle. The colonialists
had the superior weapons; the indigenous population had to make use of
its advantage of number. Nor, in the minds of some critics, should a resis-
tance movement, confronted with the power of an imperialist opponent, be
expected to comply with the requirements of distinction.118
A people’s war might be a reasonable and justified response to imperial-
ism. Unfortunately, it led to an obvious response. . . .
As it was the unity of an entire people which held the conventional

army at bay, the only anti-guerrilla strategy which could work was
the destruction of this people, in other words, of civilians, of women
and children.119
Thus the imperialist, or neocolonial, response to a people’s war of libera-

tion could become genocidal.120 Falk made a similar point, arguing that the
battlefield tactics of high-technology counterinsurgency warfare plus the
aggressive war character of the enterprise led to genocide.121
The strategic hamlet program, which critics also noted was a pragmatic
response to a people’s war, was attacked in similar terms. The strategic
hamlets were presented by the administration as a way of protecting the
peasants,122 in a form not far from what might have been envisaged by the
Geneva Convention. Critics acknowledged that this was a way of “protect-
ing” the peasant masses from communism,123 and they understood that the
separation of guerrillas from their support base was a logical form of coun-
terinsurgency.124 Nevertheless, critics said any support in the Geneva Con-
ventions was a juridical fiction.125 They emphasized the depredations of
the strategic hamlet program: the massive dislocation of people from their
homes;126 the presence of spikes, moats, machine gun turrets, patrols;127 the
use of forced labor.128 These hamlets were nothing other than concentra-
tion camps,129 designed with genocidal intent.130
Thus while these critiques acknowledged that these extreme forms
of counterinsurgency were the result of a people’s war—just as previous
international lawyers had warned—the legitimacy of the people’s war jux-

taposed against the illegitimacy of an imperialist, Nazi-like regime, made
the response immoral. It was a clear betrayal of all the principles that the
United States purported to uphold:
In the name of freedom pregnant women were ripped open, and the
electorate did not rebel. Every American who voted Republican or
Democratic shares the guilt of these sanguinary deeds. America, the
self-proclaimed champion of freedom to torture and kill women and
children for the crime of wishing to go on living in their homes.131
In much the same way, Israeli critics of the policy of occupation feared that
it was, or would lead to, the destruction of Israeli democratic values.132 It
could only create further resistance and repression.133
The immorality and illegitimacy of the US campaign was elided into
a strong implication, and even statement, of illegality. This claim was not
always justified but, as the war continued, critics started to make techni-
cal arguments that the bombing of civilians was a breach of the laws of
armed conflict.134 As I have discussed, there were no clear provisions that
protected civilians from aerial bombardment before the drafting of the
Additional Protocols, so this argument did require some interpretative
work. In the Russell Tribunal, bombing was described as a crime of aggres-
sion.135 The use of napalm, in particular, was described as a breach of the
Hague articles that prohibited causing unnecessary suffering and prohibit-
ing bombardment of undefended places.136 Franck argued that there was a
principle in international law that required a distinction between combat-
ants and the civilian population—a principle that the US leadership had
disregarded.137 He also argued that bombing civilians was in breach of the
1949 Geneva Convention IV, although he did not explain how the conven-
tion prohibited this.138
Franck and some other commentators also referred back to the Hague
distinction between defended and undefended places, to argue that the
United States was in breach of the 1907 Hague Convention for attacking
undefended places.139 Another argument was that the illegality of bombing
could be extrapolated from the prohibition on killing civilians face to face.140
Finally, critics increasingly argued that the bombing was illegal because it
targeted places that did not have military importance or, when they were
military objectives, nevertheless resulted in disproportionate casualties.141
Other lawyers, even those who were against the war, were more cau-
tious about these arguments. Telford Taylor pointed out that unfortunately
there was nothing in the Nuremberg principles or the laws of war to con-
firm that bombing civilians was illegal.142 Yet toward the end of the war this
language began to be taken on by supporters of government policy as well
as critics. After the 1972 Christmas Bombing—the most concerted bomb-
ing campaign of the war—sparked outrage in Hanoi and the international
and American press, defenders of the campaign tried to show that it had
not caused excessive civilian casualties.143 Burrus Carnahan stated that all
the targets were carefully verified to be military objectives and that one was
rejected because it was in a highly populated area.144 He also argued that
there was an attempt to keep civilian casualties to a minimum, even when
this meant risking pilots’ lives.145 The result of these impressive efforts,
Carnahan states, was a remarkably small number of civilian casualties that
were certainly not disproportionate to military advantage.146
Thus the outrage over the Vietnam War shows a shift in the under-
standing of legitimate and lawful war. A people’s war for liberation had a
certain claim to legitimacy, and the counterinsurgency techniques seemed
so illegitimate that it was becoming impossible to see them as lawful.
Attacks on civilians, even when those civilians could not be distinguished
from combatants, were becoming difficult to defend. The limited protec-
tion outlined by existing international law was starting to be understood
as requiring a distinction between military and civilian objectives and the
protection of civilians.
Revolutionary War at the Diplomatic Conferences
The shifting understanding of just war and the laws of war can be seen in
the debates at diplomatic conferences to draft the Additional Protocols in
the 1970s. These debates, in turn, left their mark on the Additional Pro-
tocol I.
The Diplomatic Conference on the Reaffirmation and Development
of International Humanitarian Law Applicable in Armed Conflicts took
place from 1974–1977 under the auspices of the ICRC. I have traced the
background to these conferences more thoroughly elsewhere;147 but, by
the time the Conference began, it was seen as a way to bring the “new”
types of war, the kind of war that Vietnam exemplified, within the purview
of international law. The ICRC wanted the Conference to find a way to
incorporate wars for national liberation, to regulate guerrilla warfare, and
to “reaffirm” a distinction between civilians and combatants, that was being
threatened by these new wars.148
These aims show that, even before the Conference, conflicts like those
in Vietnam and Israel had affected the understanding of the laws of war. As
discussed above, there were clear existing laws dealing with (that is, prohib-
iting) guerrilla warfare and very few laws protecting civilians. This existing
regime, however, no longer seemed appropriate once guerrilla wars became
wars of national liberation—wars that had a claim to legitimacy and whose
fighters had a claim to justice. At the same time, the counterinsurgency
techniques directed at civilians in these conflicts now appeared immoral or
illegal breaches of principles that were presumed to protect them. Specific
techniques that were associated with Vietnam were considered candidates
for targeted regulation. Napalm, the ICRC acknowledged, had aroused
such reprobation in public opinion that, according to some jurists, the con-
ditions would be favorable for obtaining complete prohibition.149 Several
proposals from states at this point specifically prohibited napalm and other
incendiary weapons.150 There were also some suggestions made about pre-
venting the concentration of the population in strategic villages.151
The ICRC may have intended some changes to the law, but it did not
foresee the extent to which the Conference would focus on and transform
the rights of national liberation movements and fighters.152 Indeed, as Abi-
Saab noted, the ICRC had attempted to bypass this issue in its preparation
for the conference:
In spite of all the indications as to the great importance which a very

large majority of States attached to the issues of wars of national
liberation, not only in UN resolutions and reports, but also dur-
ing the Istanbul and the Government Experts Conference, the draft
protocols submitted by the ICRC to the Diplomatic Conference to
serve as bases for discussions practically evaded the issue; an issue
which was soon to dominate the work of the first session of the
conference.153
This first session was marked by an opening speech by President Ould

Dada of Mauritania, who spoke of the millions of men suffering from colo-
nial oppression and stripped of their rights.154 He insisted that it was unde-
niable that these were just wars and that the freedom fighters who engaged
in them should be granted the same protection as their oppressors.155
The Conference then turned to the question of the inclusion of national
liberation movements in the debates, including the PLO and the Provi-
sional Revolutionary Government of the Republic of South Viet-Nam—or
the Vietcong, as the Republic of South Vietnam explained.156 The inclusion
of these movements meant recognizing the legitimacy of their causes, as

well as providing voices that could provide evidence of the atrocities com-
mitted by imperialists157 and arguments for the revision of international
law. Amaly of the PLO stated that he hoped to advance certain princi-
ples, such as confirmation of the international character of wars fought by
national liberation movements; recognition of the prisoner-of-war status
of combatants in national liberation movements; protection of the civilian
population against the atrocities committed by colonialist and racist pow-
ers, such as arbitrary detention, collective reprisals, forcible displacements
of persons, destruction of dwellings, or any other objects having no mili-
tary value; and use of cruel weapons.158
Israel opposed the admission of the PLO, arguing that it was a body
that had perpetrated atrocious crimes of terrorism against civilians and had
no place at a conference on humanitarian law.159 In response, states such
as Pakistan, Syria, and Tanzania argued that it was Israel that was the per-
petrator of terrorism, thereby replaying the United Nations’ battle over
terrorism as a feature of imperialist states or individual actors. This debate
was won, again, by the supporters of national liberation movements, and
the PLO was admitted to the conference.
The inclusion of the Vietcong was more controversial. Many states
argued that the Provisional Revolutionary Government should be admit-
ted, as the legitimate representative of the people of South Vietnam.160
More importantly, it had been a victim of aggression; it had seen its coun-
try destroyed, its people decimated,161 and subjected to genocide by Ameri-
can imperialists.162 The response of the Republic of South Vietnam was
that it was the Vietcong who were the imperialists, waging a war of com-
munist imperialist expansion.163 This response shows that imperialism was
generally deployed as a sign of illegitimacy. Nevertheless, the vote to admit
the Provisional Revolutionary Government was narrowly lost by 38 votes
to 37, with 33 abstentions.
When these debates were resolved, the conference turned to the still
contentious matter of the status of wars of national liberation as inter-
national armed conflicts. Despite the arguments of the Third World and
revolutionary movements, the ICRC and Western international law-
yers held fast to the view that such wars were internal conflicts. In the
ICRC’s report on the First Conference of Government Experts in 1971,
the ICRC acknowledged that this was a contentious issue; nevertheless,
it still placed its account of the debate in the section on internal war.164
This account noted that some experts had pointed to the authority of the
General Assembly resolutions that asserted that national liberation wars
were international conflicts. Other experts, however, had responded that

“the resolutions on the subject adopted by the General Assembly or other
organs of the United Nations were no more than the concrete expression
of certain aspirations and did not sanction a generally recognized principle
of international law or reflect the practice of States.”165
The Diplomatic Conference now provided an opportunity to inscribe
these aspirational resolutions, and their vision of legitimate warfare, into
law. Third World states argued that the new law of war should recog-
nize and enable the natural rights of people to recover the security and
freedom that had been denied to them by imperialism.166 Imperialism,
whether American or sometimes Soviet, was described as political, mili-
tary, and economic aggression perpetrated by the two super powers against
peace-loving peoples in Europe, the Middle East, Asia, Africa, and Latin
America.167 It was these imperialist, colonialist, and racist forces that were
responsible for armed conflicts and for the violation of human rights and
fundamental freedoms that followed.168 The people fighting wars against
such imperialism were lawfully justified.169 They were fighting for their
inalienable right to self-determination and national independence upheld
in the Charter of the United Nations and in many General Assembly reso-
lutions.170 Moreover, the national liberation movements were the first to
respect the principles of humanitarian law because they were well aware of
the misery and suffering caused by the armed conflicts of which they were
the victims.171
Since these wars were justified, it was also suggested that they should
be treated differently under the laws of war. The laws of war should be
drafted to distinguish between the oppressed and the oppressor, to help the
oppressed and to punish the oppressor.172
Many Western states and commentators were appalled by these sugges-
tions, considering that they undermined the language and values of exist-
ing international law. They argued that introducing a distinction between
just and unjust wars would rupture the structure of modern international
humanitarian law—a structure that appeared to be based on an apolitical,
neutral legality.173 Hess, for Israel, also made this point, arguing that any
reference to the motives and cause for which belligerents were fighting
was in clear contradiction to the spirit and accepted norms of international
humanitarian law.174
Despite these concerns about the structure of international law, the
amendment to recognize national liberation conflicts as international con-
flicts was eventually passed in committee, with 70 in favor, 21 against, and
13 abstentions.175
It was feared that the Western delegations might walk out of the con-
ference after the vote, but this did not come to pass.176 Perhaps, Lysaght
suggests, they decided that the vote would not affect them significantly; the
decolonization movement was essentially over and very few places would
be affected by the new law.177 One place, however, that the law was designed
to impact, was Israel. As Amaly said, Palestine “fell within all three of the
categories mentioned in paragraph 4: they were under colonial domination;
their territory was under foreign occupation, despite the assertions of the
terrorist Begin; and they were suffering under a racist regime, since Zionism
had been recognized in a United Nations resolution as a form of racism.”178
Israel, therefore, continued to object to the provision, rejecting the
United States’ attempts to have the new article adopted by consensus in
1977. By this point, however, those Western states that were uneasy about
the provision had given up fighting for this issue. They did not want the
Conference to fail on their account.179 Nor, as Mantilla suggests, did they
want to appear racist or to share the pariah status of Israel or South Africa.180
The most they were prepared to do was to abstain, quietly restating their
concerns about the neutrality and clarity of international law.
Thus the new provision was passed with only one vote against—a vote
which could now be dismissed as being completely isolated from the civi-
lized world.181 This was a legal and political achievement for the Third
World and national liberation movements. It was also a discursive triumph,
clearly bringing the “political” language of justice from revolutionary lit-
erature into the laws of war. This language and perspective continued to
be of importance in the subsequent debate about the rights of the fighters
of such wars.
The debate about guerrilla fighters demonstrates again the division
between traditional and revolutionary concepts of warfare. In the Draft
Protocol, which the ICRC prepared for the Conference, combatant status
relied on fulfilling essentially the same requirements as the 1949 Geneva
Conventions: combatants must distinguish themselves during military
engagements, must follow the laws of war, and must be under a responsible
command.182 To take a different approach, the ICRC stated, would be to
risk destroying the essential distinction between combatant and civilian.183
Under this system, guerrilla fighters in a people’s war would be unlikely to
receive prisoner of war status.
For the supporters of people’s war and national liberation move-
ments at the Conference, this result was unacceptable. They described the
“guerrillas” who fought these wars as freedom fighters, fighting just wars
against colonial and racist oppression. All fighters in such conflicts should
be treated as prisoners of war;184 they were deserving of equal,185 if not

more protection, than regular combatants.186 The new laws drawn up by
the Conference should reflect this; they should acknowledge the reality
in which unarmed or ill-armed and underdeveloped peoples confronted
an imperialistic aggressor equipped with the most up-to-date and cruel
weapons.187 Such movements were handicapped in their confrontation
with imperialist power; their fighters could not be expected to distinguish
themselves.188 Indeed, North Vietnam questioned the principle of distinc-
tion itself in the new wars of liberation:
As regards the national liberation armies, from the intrinsic original

fact that they are the armies of weak and ill armed peoples fight-
ing against a powerful and heavily armed enemy their activities and
their lives are inseparable from the civilian population. That is the
new law of the people’s war. It is an historical material necessity of
national liberation wars.
All the world knows that in guerrilla warfare a combatant must
operate under the cover of night in order not to be a target of the
modern weapons of the adversary. In such circumstances, does the
spirit of humanity compel them to wear emblems of uniforms in
order to distinguish themselves from the civilian population?189
Aldrich, the head of the US delegation, had some sympathy for this
approach. He later wrote:
A rule that requires a guerrilla to distinguish himself at all times

from the civilian population will simply make him an outlaw; he
cannot respect it and hope to survive. It is like telling him to go
around at all times with a bull’s eye pinned to his chest.190
Most Western states, however, maintained that the three conditions needed
to be met.191 In particular, they felt it was important to maintain some dis-
tinction between combatants and civilians, in order to protect civilians.192
Israel made this argument particularly strenuously. Reciting expert state-
ments on the matter, Israel quoted Draper of the United Kingdom as say-
ing that to bring “the man with the bomb who is a civilian in all outward
appearances” within the framework of the protection given to regular
armed combatants would mean that no civilian would henceforth be safe.193
Aldrich worked hard to find a way to resolve this fundamental differ-
ence about whether combatants should distinguish themselves. After “two
years of hard work, official and unofficial contacts and prolonged discus-
sion and mediation,”194 he was able to present a compromise draft article
at the beginning of the fourth session. His solution was to only require
combatants to distinguish themselves during each military engagement
and during military deployment. There was no shared understanding of
what “deployment” meant—an ambiguity that, as Aldrich acknowledged,
made the term acceptable to more delegates.195
Many Western delegations were still skeptical about the provisions and
uneasy about granting combatant rights to guerrillas. Nevertheless, once
again, they found it more politically palatable to abstain than to stand with
Israel in voting against the new rule.196 As a result, the provisions were
adopted by 66 votes to 2 with 18 abstentions.197 Many of the delegates
spoke of their misgivings about the new article when explaining their
vote and referred to it as a compromise.198 The ICRC commentary also
acknowledged that the article was a compromise but, it added, probably the
best compromise that could have been achieved at the time.199
Yet, through this compromise, the Diplomatic Conference had reshaped
the legal understanding and imagery of the combatant. Combatants were
no longer just the regular military in their conventional uniforms; guerril-
las, revolutionaries, and peasant armies could be counted as combatants.
They did not have to be one thing; they could be a peasant by day and
a guerrilla by night—or Mao’s scholar and fighter. Heroes and patriots
would no longer fight outside the law, as understood at the Hague Confer-
ences; they were brought under its umbrella. To a large extent, the sym-
biosis of people and army in the revolutionary literature was achieved by
these new provisions.
Yet while these sections appeared to diminish the difference between
civilian and combatant, the Additional Protocol I also defined civilians, for
the first time in international law. Article 50 of Additional Protocol I stated
that a civilian was any person who was not a combatant, as described by
Article 43 and the 1949 Geneva Convention on Prisoners of War.200 The
ICRC noted that there were many possible ways of defining civilians, but it
considered that this negative definition was the most satisfactory.201 Article
50(3) states that the presence within the civilian population of individuals
who do not come within the definition of civilians does not deprive the
population of its civilian character. Abi-Saab later noted that this stipula-
tion was directly relevant to guerrilla warfare.202 Yet despite this acknowl-
edgement, and despite the novelty of Article 50, these provisions did not
spark any controversy.203
Delegates were also happy to accept Article 51, which states that the
civilian population and individual civilians shall enjoy general protection

against dangers arising from military operations.204 This section prohib-
its indiscriminate attacks, specifically area bombardment. Such a rule had
never been stated before in international humanitarian law; Hays Parks
would later argue that it was a new and unacceptable restriction on air war-
fare, intended to constrain the airpower of Israel and the superpowers.205
Nevertheless, it was universally acclaimed as a codification of customary,
existing rules of international law.206 This perception of the provision sug-
gests that the antiwar campaigns, that had highlighted the immorality of
attacking civilians, had affected the understanding of the law. It had cer-
tainly affected what could be said about the law.
The delegates were less unanimous when it came to the details of civil-
ian protection.207 Nevertheless, the Conference did manage to prohibit
many forms of warfare against civilians that were previously considered
acceptable, such as the starvation of civilians or reprisals against civilians.208
Moreover, it introduced a host of other provisions that attempted to pro-
tect civilians, such as precautions to be taken before attacks,209 protection
of the natural environment,210 and protection of works containing danger-
ous forces.211
In this way, the Diplomatic Conference reshaped the laws regarding
civilians and combatants. Civilians were defined as not being combatants,
as a vulnerable population granted increased protection, while combatants
were defined in a way that meant that they could also be civilians—at least
some of the time. These definitions and images of the identities involved
in war clearly owe much to the various discourses around revolutionary
war. The result of these discourses is that the new laws were somewhat
paradoxical; they introduced complexity and ambiguities into international
humanitarian law.
These complexities were reflected in the subsequent reception of the
Additional Protocol I. Although the US delegates left the conference feel-
ing fairly satisfied with what they had achieved and confident of ratifica-
tion,212 their hopes were not to be realized. As Kattan shows in “The Third
World Is a Problem” in this volume, the change in the US administration
and the increasing influence of neoconservative international lawyers and
Vietnam War veterans led to concerns about the implications of Additional
Protocol I. One of those lawyers, Hays Parks, later wrote a comprehensive
critique of the Additional Protocol I, arguing, among other points, that
the Protocol’s attempt to protect both civilians and irregular combatants
was unworkable.213 Many other military powers also initially refused to
ratify Additional Protocol I, including India, Indonesia, Iran, Iraq, Israel,
Malaysia, Morocco, Pakistan, the Philippines, Singapore, Sri Lanka, Sudan,

Thailand, the United States, and the Soviet Union.214
By the end of the twentieth century, however, opposition to the Protocol
started to wane. More states began to ratify the Protocol and, despite the
ongoing opposition from the United States and Israel, it became common
to see the Protocol referred to as customary international law.215 Indeed,
the ICRC’s study of Customary International Law cleaves very closely to
the Additional Protocols, as was shown in the rules on combatancy cited
above. This translation into customary international law has not resolved
the paradoxes of the Additional Protocol; experts are still grappling with
them, as the recent debate on “Direct Participation in Hostilities” shows.216
It does mean, however, that these paradoxes, and the competing visions of
war and law that shaped them at the Diplomatic Conferences, have become
embedded in international law. In this way, a new vision of war, represented
by the Vietnam and Arab-Israeli conflicts, was transformed into a law that
affects all states.
Conclusion
The laws of war reflect imaginaries of war—the narratives that are told
of war by strategists, humanitarians, lawyers, and politicians. For much of
the history of the modern laws of warfare, the dominant image of a proper
war was that of an orderly war between uniformed men. In the twentieth
century, however, Mao and his followers described another form of war—a
revolutionary people’s war, a war that involved an entire, heroic, people,
fighting for a just cause against imperialist oppression. This type of war was
epitomized by the Vietnam War and then by the Palestinian struggle, as it
reshaped itself according to the Vietnamese model. These causes appeared
just—and not only to the colonial and postcolonial world. Western observ-
ers increasingly supported these battles against imperialism. Moreover,
they decried the counterinsurgency techniques and attacks on civilians that
were used to oppose people’s wars. As these techniques lost legitimacy, they
also started to look illegal.
The result, at the Diplomatic Conference, was a recognition of the jus-
tice of people’s wars and an acknowledgment of their participants as com-
batants. At the same time, the Conference allowed combatants to move
between civilian and combatant roles, while considerably increasing the
protection owed to civilians. These developments represented a funda-
mental change to the rules and the understanding of warfare—a change
that, despite the long resistance from military states, has now become cen-
tral to international humanitarian law.
NOTES
1. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International

Humanitarian Law, vol. 1 (Cambridge: Cambridge University Press, 2005), 3.
2. Henckaerts and Doswald-Beck, Customary International Humanitarian Law,
17.
3. See, e.g., Nils Melzer, Interpretive Guidance on the Notion of Direct Participa-
tion in Hostilities under International Humanitarian Law (Geneva: ICRC, 2009).
4. Claude Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to
the Geneva Conventions of 12 August 1949 (M. Nijhoff, 1987), 509.
5. Pilloud et al., Commentary on the Additional Protocols, 384.
6. See, e.g., James E. Bond, “Protection of Non-Combatants in Guerrilla
Wars,” William and Mary Law Review 12 (1970–1971): 787, 797; W. T. Mallison and
R. A. Jabri, “The Juridical Characteristics of Belligerent Occupation and the Resort
to Resistance by the Civilian Population: Doctrinal Development and Continuity,”
George Washington Law Review 42 (1973–74): 185, 205.
7. See Amanda Alexander, “A Short History of International Humanitarian
Law,” European Journal of International Law 26 (2015): 109.
8. J. Bowyer Bell, The Myth of the Guerrilla (New York: Knopf, 1971), 3.
9. Bell, The Myth of the Guerrilla, 3.
10. Lester Nurick and Roger W. Barrett, “Legality of Guerrilla Forces under
the Laws of War,” American Journal of International Law 40 (1946): 578–79.
11. James Brown Scott, The Proceedings of the Hague Peace Conferences: Transla-
tion of the Official Texts: The Conference of 1899 (New York: Oxford University Press,
1920), 551; William I. Hull, The Two Hague Peace Conferences (Boston: Ginn and Co.,
1909), 216.
12. Scott, The Proceedings of the Hague Peace Conferences, 551.
13. Hull, The Two Hague Peace Conferences, 218.
15. Hull, The Two Hague Peace Conferences, 222.
19. A. Cassese, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?”
European Journal of International Law (2000) 11: 197–98.
20. Scott, The Hague Peace Conferences of 1899 and 1907.
21. Convention (IV) Respecting the Laws and Customs of War on Land, The Hague,
October 18, 1907, art 1.
24. Cassese, “‘The Martens Clause,’” 198
25. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, Geneva, August 12, 1949, art 4(2).
26. Geneva Convention (III) Relative to the Treatment of Prisoners of War, Geneva,
August 12, 1949, art 4(2).
27. Jean Pictet, ed., The Geneva Conventions of 12 August 1949: Commentary:
Geneva Convention III Relative to the Treatment of Prisoners of War (Geneva: Interna-
tional Committee of the Red Cross, 1960), 60.
28. Arnold Fraleigh, “‘The Algerian Revolution as a Case Study in International
Law,’” in Quincy Wright and Richard A Falk, eds., The International Law of Civil
War (Baltimore: Johns Hopkins Press, 1971), 196, 202; Henry Wheaton, Elements
of International Law 5th ed., revised by Coleman Phillipson (London: Stevens and
Sons, 1916), 475, 480.
29. John Westlake, International Law 2nd ed. (Cambridge: Cambridge Univer-
sity Press, 1910–1913), 89; Coleman Phillipson, International Law and the Great War
(London: T. Fisher Unwin, Sweet & Maxwell, 1915), 19.
30. William Edward Hall, A Treatise on International Law 4th ed. (Oxford: Clar-
endon Press, 1895), 575.
31. Wheaton, Elements of International Law, 487.
32. Amanda Alexander, “‘The ‘Good War’: Preparations for a War against Civil-
ians,” Law, Culture and the Humanities (2019) 15: 227–52.
33. Alexander, “A Short History of International Humanitarian Law,” 117;
Amanda Alexander, “The Genesis of the Civilian,” Leiden Journal of International
Law 20 (2007): 375.
34. Wheaton, Elements of International Law, 479–80; J. H. Morgan, The German
War Book: Being “The Usages of War on Land” Issued by the Great General Staff of the
German Army (London: John Murray, 1915), 18; Westlake, International Law, 36;
Phillipson, International Law and the Great War, 19.
35. Article 27 Geneva Protocol IV.
36. Article 49.
37. Article 15.
38. Jean Pictet, ed., The Geneva Conventions of 12 August 1949: Commentary:
Geneva Convention IV Relative to the Protection of Civilians (Geneva: International
Committee of the Red Cross, 1960), 131–32 commentary.
39. James Robbins Jewell, “Using Barbaric Methods in South Africa: The Brit-
ish Concentration Camp Policy during the Anglo-Boer War,” Scientia Militaria 31
(2012): 8–9.
40. Dan Stone, Concentration Camps: A Very Short Introduction (Oxford: Oxford
41. Stone, Concentration Camps, 13.
42. Anthony James Joes, Resisting Rebellion: The History and Politics of Counterin-
surgency (Lexington: University Press of Kentucky, 2004), 111.
43. Joes, Resisting Rebellion, 113.
44. Stone, Concentration Camps, 85.
45. Andrew Mumford, The Counter-Insurgency Myth: The British Experience of
Irregular Warfare (London: Routledge, 2011), 32; Joes, Resisting Rebellion, 106; Karl
Hack, “The Malayan Emergency as Counter-Insurgency Paradigm,” Journal of
Strategic Studies 32 no. 3 (2009): 383–414, 388.
46. P. Busch, “Killing the ‘Vietcong’: The British Advisory Mission and the Stra-
tegic Hamlet Programme,” Journal of Strategic Studies 25, no. 1 (2002): 135–62, 137;
William S. Turley, The Second Indochina War: A Concise Political and Military History
(Lanham, MD: Rowman & Littlefield, 2008), 70.
47. P. Busch, “Killing the ‘Vietcong,’” 155; Turley, The Second Indochina War,
71.
48. Turley, The Second Indochina War, 71.
49. Laleh Khalili, Time in the Shadows: Confinement in Counterinsurgencies (Stan-
ford: Stanford University Press, 2012), 4; Patricia Owens, Economy of Force (Cam-
bridge: Cambridge University Press, Kindle ed.), 9. Aidan Forth, Barbed-Wire
Imperialism: Britain’s Empire of Camps, 1876–1903 (Oakland: University of Califor-
nia Press, 2017), 10.
53. Ian F. Beckett, Modern Insurgencies and Counter-Insurgencies: Guerrillas and
Their Opponents Since 1750 (London: Routledge, 2001), 79.
54. Beckett, Modern Insurgencies and Counter-Insurgencies, 79.
Movement, 1949–1993 (Oxford: Oxford University Press, 1999), 200; Yoav Di-
Capua, “The Slow Revolution: May 1968 in the Arab World,” American Historical
Review 123, no. 3 (2018): 737.
56. Sayigh, Armed Struggle and the Search for State, 176; Paul Thomas Chamber-
lin, The Global Offensive: The United States, the Palestine Liberation Organization, and
the Making of the Post-Cold War Order (Oxford: Oxford University Press, 2012).
57. Hisham Sharabi, “Palestinian Guerrillas: Their Credibility and Effective-
ness” (The Centre for Strategic and International studies, Georgetown University,
1970), 26–27.
58. Faris Giacaman, “Political Representation and Armed Struggle,” Journal of
Palestine Studies 43, no. 1 (2013): 26.
59. D. A. Heradstveit, “A Profile of the Palestine Guerrillas,” Cooperation and
Conflict, VII (1972): 26; Sayigh, Armed Struggle and the Search for State, 200.
60. Chamberlin, The Global Offensive, 26; Sayigh, Armed Struggle and the Search
for State, 200.
62. Bell, The Myth of the Guerrilla, 19–21; J. L. S. Girling, People’s War: The Condi-
tions and the Consequences in China and in South-East Asia (London: Allen and Unwin,
1969), 52–57.
63. Brigadier General Samuel B. Griffith, “Introduction,” in Mao Tse-tung, On
Guerrilla Warfare, Brigadier General Samuel B. Griffith, trans. (Fleet Marine Force
Reference Publication), 12–18, 21.
64. Lin Piao, Long Live the Victory of People’s War! (Peking: Foreign Languages,
1967), 2.
65. Lin Piao, Long Live the Victory of People’s War!, 12, also see 26.
66. General Võ Nguyên Giáp, People’s War, People’s Army (Ha Noi: The Gioi
Publishers, 2004), 28.
68. Mao Tse-tung, On Guerrilla Warfare, 93.
69. Lin Piao, Long Live the Victory of People’s War!, 29.
70. Sayigh, Armed Struggle and the Search for State, 197.
71. Giacaman, “Political Representation and Armed Struggle,” 28.
72. Basic Political Documents of the Armed Palestinian Resistance Movement, selected,
translated, and introduced by Leila S Kadi (Beirut: Palestine Liberation Organiza-
tion Research Centre, 1969), 32.
73. Mao Tse-tung, On Guerrilla Warfare, 73.
74. Cited in Girling, People’s War, 132.
75. Giáp, People’s War, 110.
76. Giacaman, “Political Representation and Armed Struggle,” 30.
78. Mao Tse-tung, On Guerrilla Warfare, 42; Giáp, People’s War, 47–48.
79. Lin Piao, Long Live the Victory of People’s War!, 32.
80. Cited in Girling, People’s War, 77.
82. Lin Piao, Long Live the Victory of People’s War!, 27–28; Mao Tse-tung, On
Guerrilla Warfare, 85–86; Giáp, People’s War, 22, 47–48.
83. Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA:
Harvard University Press, 2010), 116.
84. Lin Piao, Long Live the Victory of People’s War!, 52–53.
85. Giáp, People’s War, 29.
86. Chamberlin, The Global Offensive, 20.
87. Di-Capua, “The Slow Revolution,” 735.
89. Fayez A. Sayegh, “A Palestinian View,” 2nd World Conference on Palestine,
Amman, September 26, 1970, http://www.freedomarchives.org/Documents/Find
er/DOC12_scans/12.palestinian.view.pdf
90. Ardi Imseis, “Negotiating the Illegal: On the United Nations and the Illegal
Occupation of Palestine, 1967–2020,” European Journal of International Law 31, no.
3 (2020): 1058.
91. Imseis, “Negotiating the Illegal,” 1058.
92. Helmut Freudenschuss, “Legal and Political Aspects of the Recogntion of
National Liberation Movements,” Millennium 11, no. 2 (1982): 116.
93. Malvina Halberstam, “The Evolution of the United Nations Position on
Terrorism: From Exempting National Liberation Movements to Criminalizing
Terrorism Wherever and by Whomever Committed,” Columbia Journal of Transna-
tional Law 41 (2003): 573.
94. Luigi Migliorino, “International Terrorism in the United Nations Debates,”
Italian Yearbook of International Law 2 (1976): 116.
96. Halberstam, “The Evolution of the United Nations Position on Terrorism,”
573–74.
98. Theodor Meron, “Some Legal Aspects of Arab Terrorists’ Claims to Privi-
leged Combatancy,” Nordisk Tidsskrift for International Ret 40 (1970): 53.
99. Sanford R. Silverburg, “The Palestine Liberation Organization in the
United Nations: Implications for International Law and Relations,” Israel Law
Review 12 (1977): 390.
100. Georges M. Abi-Saab, “The Newly Independent States and the Rules of
International Law: An Outline,” Howard Law Journal 8 (1962): 112.
101. Abi-Saab, “The Newly Independent States and the Rules of International
Law,” 112.
102. See, e.g., Henry Cattan, Palestine and International Law (London: Longman,
1973), 281; Quincy Wright and M. Khadduri, “The Palestine Conflict in Inter-
national Law,” in M. Khadduri, ed., Major Middle Eastern Problems in International
Law (Washington, DC: American Enterprise Institute for Public Policy Research,
1972), 13–33.
103. See, e.g., William W. Orbach, To Keep the Peace: The United Nations Condem-
natory Resolution (Lexington: University Press of Kentucky, 2014), 95; Richard A.
Falk, “The Beirut Raid and the International Law of Retaliation,” American Journal
of International Law 63, no. 3 (1969); Derek Bowett, “Reprisals Involving Recourse
to Armed Force,” American Journal of International Law 66 (1972): 11–12.
104. N. L. Zaroulis and Gerald Sullivan, Who Spoke Up? American Protest Against
the War in Vietnam, 1963–1975 (New York: Doubleday, 1984), 56.
105. See, e.g., Frank Browning and Dorothy Forman, eds., The Wasted Nations:
Report of the International Commission of Enquiry into United States Crimes in Indochina,
June 20–25, 1971 (New York: Harper & Row, 1972); Telford Taylor, Nuremberg and
Vietnam: An American Tragedy (Chicago: Quadrangle Books, 1970); John Duffett,
Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribu-
nal (Stockholm: O’Hare Books, 1968).
106. John E. Mueller, War, Presidents, and Public Opinion (New York: John Wiley
& Sons, 1973), 63.
107. Hans Goran Franck, “International Law and the US War in Indochina,” in
Browning and Forman, eds., The Wasted Nations, 322.
108. Bertrand Russell, “Peace through Resistance to US Imperialism,” in Ber-
trand Russell, War Crimes in Vietnam (New York: Allen & Unwin, 1967), 99.
109. Russell, War Crimes in Vietnam, 73.
111. Russell, War Crimes in Vietnam, 102, 117; Taylor, Nuremberg and Vietnam,
207.
113. Evyn Lê Espiritu, “Cold War Entanglements, Third World Solidarities:
Vietnam and Palestine, 1967–75,” Canadian Review of American Studies 48, no. 3
(2018): 365.
114. Di-Capua, “The Slow Revolution,” 735; Sharabi, “Palestinian Guerrillas:
Their Credibility and Effectiveness,” 1; Di-Capua, Palestine comes to Paris, 23.
115. Espiritu, “Cold War Entanglements,” 365; Chamberlin, The Global Offensive,
40.
116. Sharabi, “Palestinian Guerrillas: Their Credibility and Effectiveness,” 3.
117. Sartre, “On Genocide,” in Duffett, The Crime of Silence, 617.
118. Telford Taylor, refers to Falk and other lawyers, 137.
121. Falk, “Introduction,” in Browning and Forman, The Wasted Nations, xv.
122. Theodore J. C. Heavner, “The Viet-Nam Situation” (1963). Department of
State Bulletin, 49, 385, 396–97.

125. Yves Jouffe, “Report on the Laws of War,” in Duffett, The Crime of Silence,
398.
126. “Report from Indochina,” in Browning and Forman, eds., The Wasted Nations,
260; Franck, “International Law and the US War in Indochina,” in Browning and
Forman, eds., The Wasted Nations, 296.
129. “Report from Indochina,” in Browning and Forman, eds., The Wasted Nations,
254, 260; Franck, “International Law and the US War in Indochina,” in Browning
and Forman, eds., The Wasted Nations, 296.
130. Lelio Basso, “Summation on Genocide,” in Duffett, The Crime of Silence,
634; Sartre, “On Genocide,” in Duffett, The Crime of Silence, 621.
132. Noam Chomsky, Peace in the Middle East? Reflections on Justice and Nationhood
(New York: Vintage Books, 1974), 61.
133. Chomsky, Peace in the Middle East?, 61.
134. Task Force Report in Browning and Forman, eds., The Wasted Nations, 90.
135. Lelio Basso in Duffett, The Crime of Silence, 297.
136. Yves Jouffe, “Report on the Laws of War,” in Duffett, The Crime of Silence,
326.
137. Franck, “International Law and the US War in Indochina,” in Browning and
138. Franck, “International Law and the US War in Indochina,” in Browning and
139. Fred Branfman, “Bombing in Laos—A Crime Against Humanity,” in Brown-
ing and Forman, eds., The Wasted Nations, 74; Franck, “International Law and the
US War in Indochina,” in Browning and Forman, eds., The Wasted Nations, 294.
140. Erwin Knoll, Judith Nies McFadden, and the Congressional Conference on
War and National Responsibility Washington, War Crimes and the American Con-
science (New York: Holt Rinehart and Winston, 1970), 75.
141. See, e.g., Ekberg et al., “Task Force Report,” in Browning and Forman, eds.,
The Wasted Nations, 90; Branfman, “Bombing in Laos—A Crime Against Human-
ity,” in Browning and Forman, eds., The Wasted Nations, 76.
142. Telford Taylor, 142.
143. See Martin Florian Herz and Leslie Rider, The Prestige Press and the Christ-
mas Bombing, 1972: Images and Reality in Vietnam (Washington, DC: Ethics and
Public Policy Center, 1980), 54.
144. Burrus M. Carnahan, “‘Linebacker II’ and Protocol I: The Convergence of
Law and Professionalism,” in “Civilian Immunity and the Principle of Distinction,”
American University Law Review 31 (1981–1982): 861, 865.
145. Carnahan, “‘Linebacker II’ and Protocol I,” 866.
146. Carnahan, “‘Linebacker II’ and Protocol I,” 867.
147. Amanda Alexander, “International Humanitarian Law, Postcolonialism and
the 1977 Geneva Protocol,” Melbourne Journal of International Law 17 (2017).
148. Claude Pilloud et al., Commentary on the Additional Protocols of 8 June 1977
to the Geneva Conventions of 12 August 1949 (Leiden: M. Nijhoff, 1987) 586–87;
Waldemar A. Solf and W. George Grandison, “International Humanitarian Law

Applicable in Armed Conflict,” Journal of International Law and Economics 10 (1975):
567, 569.
149. International Committee of the Red Cross, “XXIst International Confer-
ence of the Red Cross: Reaffirmation and Development of the Laws and Customs
Applicable in Armed Conflicts” (Geneva, 1969), 60.
150. See, e.g., Conference of Government Experts on the Reaffirmation and
Development of International Humanitarian Law Applicable in Armed Conflicts
(Geneva, 24 May—12 June 1971), Report on the Work of the Council (Geneva, 1971);
“Outline of an Instrument on the Protection of the Civilian Population against the
Danger of Hostilities,” working paper submitted by the experts of Mexico, Sweden,
Switzerland, United Arab Republic, and the Netherlands at 97; proposal submitted
by the experts of the Netherlands at 56; proposal submitted by the experts of Egypt,
Finland, Mexico, Norway, Sweden, Switzerland, and Yugoslavia at 57; proposal sub-
mitted by the experts of Spain at 61.
151. See, e.g., Plaka (Albania), Official Records of the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law Applicable in Armed
Conflicts, Geneva (1974–1977) (Hein, 1981), vol. 5, 147.
152. Michael Bothe, Karl Josef Partsch, and Waldemar A. Solf, New Rules for Vic-
tims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva
Conventions of 1949 (Leiden: Martinus Nijhoff, 1982), 40; Keith Suter, An Interna-
tional Law of Guerrilla Warfare (London: Pinter, 1984), 142–43.
153. Abi-Saab, 374.
154. Official Records of the Diplomatic Conference, vol. 5, 13.
155. Official Records of the Diplomatic Conference, vol. 5, 13–14.
160. See, e.g., Official Records of the Diplomatic Conference, vol. 5, Balken (Federal
Republic of Germany). Seuk Djoun Kim (Democratic People’s Republic of Korea),
Cristescu (Romania) at 46; Chowdhury (Bangladesh), Witek (Poland) at 45.
161. See, e.g., Lechuga (Cuba), Gribanov (Union of Soviet Socialist Republics) at
15; Plaka (Albania) at 21, Official Records of the Diplomatic Conference, vol. 5.
162. Plaka (Albania), Official Records of the Diplomatic Conference, vol. 5, 21.
163. Le Van Loi (Republic of Viet-Nam), Official Records of the Diplomatic Confer-
ence, vol. 5, 47–48.
164. See Conference of Government Experts on the Reaffirmation and Develop-
ment of International Humanitarian Law Applicable in Armed Conflicts (Geneva,
24 May—12 June 1971), paras 312–56.
165. Conference of Government Experts on the Reaffirmation and Develop-
ment of International Humanitarian Law Applicable in Armed Conflicts (Geneva,
24 May—12 June 1971), 53.
166. Boudjakdji (Algeria), Official Records of the Diplomatic Conference, vol. 5, 38.
168. Dugersuren (Mongolia), Official Records of the Diplomatic Conference, vol. 5,
191.
191.
171. Mishra (India) Official Records of the Diplomatic Conference, vol. 5, 198.
172. Mishra (India) Official Records of the Diplomatic Conference, vol. 5, 198;
Namibia, Mishra (India), Official Records of the Diplomatic Conference, vol. 5, 204;
Boudjakdji (Algeria), Official Records of the Diplomatic Conference, vol. 5, 38.
173. See, e.g., Forsythe, “The 1974 Diplomatic Conference on Humanitarian
Law,” 80; R. R. Baxter, “Humanitarian Law or Humanitarian Politics? The 1974
Diplomatic Conference on Humanitarian Law,” Harvard International Law Jour-
nal 16, no. 1 (1975): 17; John F. DePue, “The Amended First Article to the First
Draft Protocol Additional to the Geneva Conventions of 1949—Its Impact Upon
Humanitarian Constraints Governing Armed Conflict,” Military Law Review 75
(1977): 75, 97.
175. Bothe, Partsch, and Solf, New Rules for Victims of Armed Conflicts, 43.
176. Charles Lysaght, “The Attitude of Western Countries,” in Antonio Cassese,
ed., The New Humanitarian Law of Armed Conflict (Naples: Editoriale Scientifica,
1979), 354.
177. Charles Lysaght, “The Attitude of Western Countries,” 354.
179. Giovanni Mantilla, Lawmaking under Pressure: International Humanitarian
Law and Internal Armed Conflict (Ithaca: Cornell University Press, 2020), 151.
180. Mantilla, Lawmaking under Pressure, 150. Hays Parks makes much the same
argument, W Hays Parks, “Air War and the Law of War,” Air Force Law Review 1
(1990): 79.
181. El Fattal (Syrian Arab Republic), Official Records of the Diplomatic Conference,
vol. 6, 51.
182. Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Com-
mentary (Geneva, October 1973), 47.
183. Draft Additional Protocols to the Geneva Conventions of August 12, 1949: Com-
mentary (Geneva, October 1973), 49.
184. Moun Seun Jang (Democratic People’s Republic of Korea), Official Records of
the Diplomatic Conference, vol. 5, 368.
191; Chowdhury (Bangladesh), Official Records of the Diplomatic Conference, vol. 5,
187.
191.
187. Abada (Algeria) Official Records of the Diplomatic Conference, vol. 5, 148.
188. Official Records of the Diplomatic Conference on the Reaffirmation and Develop-
ment of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–
1977) (Hein, 1981) vol. 14, at 344, 324, 531. North Vietnam, Nigeria, North Korea,
Pakistan, Ghana, and Lesotho.
189. Official Records of the Diplomatic Conference, vol. 14, at 466.
190. George H Aldrich, “Guerrilla Combatants and Prisoner of War Status,”
American University Law Review 31 (1981–1982): 872.
191. Official Records of the Diplomatic Conference, vol. 14. See the United States at
475, Brazil at 507, Switzerland at 508, Federal Republic of Germany at 515, Aus-
tralia at 525, United Kingdom, Israel, and the Netherlands at 526. Belgium was an
exception.
192. Official Records of the Diplomatic Conference, vol. 14, 477. Reed (US) speaking.
194. Official Records of the Diplomatic Conference, vol. 15, above n74, 155; H. Sultan
(Egypt) speaking.
195. Aldrich, “Guerrilla Combatants and Prisoner of War Status,” 878–79.
196. Mantilla, Lawmaking under Pressure, 161.
197. Brazil and Israel voted against. New Zealand, Nicaragua, Spain, Thailand,
United Kingdom, Uruguay, Argentina, Australia, Bolivia, Canada, Chile, Colombia,
Denmark, Guatemala, Holy See, Ireland, Italy, Japan abstained from the vote. Offi-
cial Records of the Diplomatic Conference, vol. 15, above n74, 155.
198. Official Records of the Diplomatic Conference, vol. 15, see respective states at
177, 180, 182, 185.
199. Pilloud Claude Pilloud et al., Commentary on the Additional Protocols, 522.
200. Convention (III) relative to the Treatment of Prisoners of War, Geneva, August
12, 1949.
201. Claude Pilloud et al., Commentary on the Additional Protocols, 610.
202. Georges Abi-Saab, “Wars of National Liberation in the Geneva Conven-
tions and Protocols,” Recueil des Cours: Collected Course of the Hague Academy of Inter-
national Law, vol. 165 (Leiden: Brill, 1979), 429.
203. Amanda Alexander, “International Humanitarian Law, Postcolonialism
and the 1977 Geneva Protocol,” Melbourne Journal of International Law 17 (2017):
30.
204. Alexander, “International Humanitarian Law,” 30.
205. Hays Parks, Air War and the Law of War, 164.
206. Official Records of the Diplomatic Conference on the Reaffirmation and Develop-
ment of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–
1977) (Hein, 1981), vol. 6, see Mexico at 193; Official Records of the Diplomatic Con-
ference, vol. 6, 164. Freeland (United Kingdom); Claude Pilloud et al., Commentary
on the Additional Protocols, 615.
207. See Alexander, “International Humanitarian Law,” 30–35.
208. George H. Aldrich, “New Life for the Laws of War,” American Journal of
International Law 75 (1981): 778.
209. Additional Protocol I, above n3, art 57.
210. Additional Protocol I, art 55.
211. Additional Protocol I, art 56.
212. Aldrich, “New Life for the Laws of War,” 778.
213. W. Hays Parks, “Air War and the Law of War,” Air Force Law Review 1 (1990):
140.
214. Alexander, A Short History of International Humanitarian Law, 127.
215. Alexander, A Short History of International Humanitarian Law, 137. See also
the rules cited above from the ICRC study on customary international law, Henck-
aerts and Doswald-Beck, Customary International Humanitarian Law.
216. This can be seen in the recent spate of works on direct participation in hos-
tilities, e.g., Nils Melzer, Interpretive Guidance on the Notion of Direct Participation
in Hostilities under International Humanitarian Law (ICRC, 2009); W. Hays Parks,
“Part IX of the ICRC Direct Participation in Hostilities Study: No Mandate, No
Expertise, and Legally Incorrect,” N.Y.U. J. Int’l L. & Pol. (2010): 42, 769; A. P. V.
Rogers, “Direct Participation in Hostilities: Some Personal Reflections,” Mil. L. &
L. War Rev. (2009): 48, 143.
SIX
The War Against the People

and the People’s War
Palestine and the Additional Protocols
to the Geneva Conventions
Ihab Shalbak and Jessica Whyte
In a keynote address at the 2017 “Israel Defense Forces International

Conference on the Law of Armed Conflict,” the “founding father of inter-
national law studies in Israel,” Yoram Dinstein, argued that the biggest
contemporary challenge for international law is the direct participation of
civilians in hostilities.1 Dinstein argued that the revolving door of “farmers-
by-day, fighters-by-night” is an area still shrouded in doubt. Rejecting the
position of the International Committee of the Red Cross, according to
which civilians lose protection against direct attacks only for the duration
of a specific act of direct participation in hostilities, Dinstein argued for
a “continuum” approach that would deny civilian status to members of
armed groups who “serve as cooks, drivers, administrative assistants [and]
legal advisers” as well as to members of the political wings of armed groups.
It was illusory to expect that fighters and support staff could be distin-
guished in “the thick of the battle,” he contended. Moreover, in a context
in which “irregular fighters” undermine the distinction between civilians
and combatants, he argued that adapting the laws of armed conflict to what
he called “new modes of fighting,” like the direct participation of civilians
in hostilities, is crucial.2
145
Although Dinstein framed this as a new problem, the question of the

relation between irregular fighters and the civilian population had long
been a central area of dispute in international lawmaking forums, and was
the controversy that almost upended the drafting of Additional Protocol I
to the Geneva Conventions (1977).3 In 1974, as the Vietnam War raged,
the Swiss Federal Council, working alongside the International Commit-
tee of the Red Cross, convened a “Diplomatic Conference on the Reaffir-
mation and Development of International Humanitarian Law Applicable
in Armed Conflicts” in Geneva. The conference became a key site of con-
testation over what the Vietnamese military strategist General Vo Nguyen
Giáp called the “people’s war.” While delegates from newly independent
states and national liberation movements sought privileged belligerent,
and thus prisoner of war, status for national liberation fighters, those from
major powers argued that granting the right to use violence to irregular
fighters would blur the distinction between combatants and civilians and
expose the latter to harm.
Additional Protocol I (API) has typically been seen as a significant
victory for national liberation movements, both by their opponents and
by representatives of these movements themselves. Not only did it recog-
nize that the situations to which the protocol applies “include armed con-
flicts in which people are fighting against colonial domination and alien
occupation and against racist régimes in the exercise of their right of self-
determination,” it also significantly relaxed the conditions for combatant
status enshrined in the 1949 Geneva Conventions, which had granted
such status to certain resistance fighters under a responsible command
on the condition that that they carried arms openly, wore a distinguish-
ing insignia, and “distinguished themselves from the civilian population.”
In contrast, API explicitly recognized that “there are situations in armed
conflicts where, owing to the nature of the hostilities an armed combat-
ant cannot so distinguish himself.” In a significant (though not unquali-
fied) victory for national liberation movements, Article 44 of Additional
Protocol I states that a fighter will retain combatant status in such situ-
ations provided “he” carries his arms openly: “(a) during each military
engagement, and (b) during such time as he is visible to the adversary
while he is engaged in a military deployment preceding the launching of
an attack in which he is to participate.”4
The belatedness of the struggle of the Palestine Liberation Organiza-
tion (PLO), as one of the few national liberation movements that had not
achieved statehood by the end of the Diplomatic Conference, gave Pales-
tine a central place in the discussions about how international law should
The War Against the People and the People’s War 147
regulate anticolonial conflicts. During the final session of the conference,

the PLO legal advisor and delegate to the conference, Chawki Armaly,
expressed “deep satisfaction” that the “international community had re-
confirmed the legitimacy of the struggles of peoples exercising their right
to self-determination.”5 Armaly told the conference that, while his delega-
tion was “not fully satisfied” with the “compromise text” on combatants
and prisoners of war, it nonetheless constituted a basis for further improve-
ment of humanitarian law.6 While Armaly declared victory on behalf of the
PLO, Israel ultimately became the only state to vote against the extension
of combatant status to national liberation fighters, and then against Addi-
tional Protocol I in its entirety.
At the Diplomatic Conference, Israel, alongside the United Kingdom
and various European powers, depicted themselves as the guardians of
a “traditional” understanding of humanitarian law, according to which
the protection of civilians required that wars were fought by the soldiers
of regular states.7 Although, as a US military lawyer noted at the time,
in the two decades leading up to the conference, the number of armed
conflicts that fell within this “traditional model”—in which trained and
uniformed soldiers fought along fixed battle-lines far from the civilian
population—could be “counted on the fingers of a single hand,” these
delegations continued to argue that any concession to the rights of irreg-
ular fighters would blur the principle of distinction between combatants
and civilians.8 This, the Israeli delegate claimed, “would expose the latter
to serious risks and was contrary to the spirit and to a fundamental prin-
ciple of humanitarian law.”9
In contrast, the Palestinians, along with the North Vietnamese delega-
tion, among others, argued that such a model, which assumed that tradi-
tional forces aimed to spare the civilian populations of their adversaries,
had little bearing on their own conflicts. Charging Israel with “daily crimes
against humanity,” Armaly’s first speech had argued that the “protection of
the civilian population against the atrocities committed by colonialist and
racist powers” must be a key concern of the conference.10 Here he singled
out Israel’s violence against civilians, including arbitrary detention, collec-
tive reprisals, forcible displacement, the destruction of homes and other
objects without military value, and the use of cruel weapons. Following
the vote on the extension of POW status to national liberation fighters,
Armaly argued that Israel’s “solitary vote” of opposition had been based on
“the fallacious pretext of protecting the civilian population.”11 The North
Vietnamese delegate Nguyen Van Huong similarly framed what he termed
wars of “pacification” as indiscriminate wars against the people, which
aimed “to force the civilian population to give up the struggle for self-
determination.”12 In such wars, he contended, “the adversary to be crushed
was the entire civilian population.”13 From this perspective, he argued that,
far from serving humanitarian ends, the attempt to distinguish civilians
from combatants was part of a counterinsurgency strategy that consisted in
“draining the pool to catch all the fish.”14
To this day, what Dinstein calls “the ‘Great Schism’ between Contract-
ing and non-Contracting Parties” to Additional Protocol I has continued
to play out, as the latter, notably Israel and the United States, depict API
as a license to terrorism and a threat to civilians.15 Israel’s 2006 “Manual
on the Rules of Warfare” states that the Additional Protocols were adopted
as a result of “pressure from Third World countries” and “substantially
expanded the definition of a fighter to guerrillas and terrorists,” ensuring
that “Israel (and even the United States) did not sign them and does not
recognise them.”16 Echoing the position of the Israeli delegation at the
Diplomatic Conference, the manual contends that the distinction between
legitimate and illegitimate fighters is necessary to prevent civilians tak-
ing part in military actions and to stop soldiers “hiding among the civilian
population.”17
Although this “schism” over the Additional Protocols has led to much
technical legal argumentation, the stakes of such arguments were not
merely legal but concerned the central existential question of the “cor-
porate character of popular sovereignty”—or who constituted a people.18
Writing soon before the final session of the Diplomatic Conference, the
US military lawyer cited earlier suggested that the ambiguities of the
amended API arose from attempts “to define precisely what constitutes
peoples struggling against ‘racist regimes.’”19 During the final session of
the Diplomatic Conference, this matter pitted the PLO against the Israeli
delegation. The Arab people of Palestine fell within all three categories
to which API now applied, Armaly told the conference: “they were under
colonial domination; their territory was under foreign occupation . . . and
they were suffering under a racist regime, since Zionism had been recog-
nized in a United Nations resolution as a form of racism.”20 The Israeli
delegate, on the other hand, argued that this article had a “built in non-
applicability clause, since [in order for it to apply] a party would have to
admit that it was either racist, alien or colonial—definitions which no State
would ever admit to.”21 As the US military lawyer noted at the time, how-
ever, the other aspect of this definition—who constituted a people—was also
a matter of ambiguity. Although he suggested that API appeared to refer
to “the native inhabitants of a well-defined but externally-governed ter-
ritory,” he worried that its lack of specificity “allows the term ‘peoples’ to
acquire infinite permutations”—possibly enabling “even” the Oglala Sioux
militants of Wounded Knee, South Dakota to “assert that they constitute a
people, and therefore a distinct polity.”22
In what follows, we show that, as for the Oglala Sioux and other peoples
subjected to settler colonial regimes, much was at stake for the Palestinians
in the claim to be a people. Drawing on the record of the ICRC Diplo-
matic Conference, and on the archives of the Palestinian national move-
ment held at the Institute for Palestine Studies in Beirut, we situate the
PLO’s position during the drafting of the Additional Protocols against the
backdrop of Palestinian attempts to affirm themselves as a people, or a
“distinct polity,” and to counteract their prior negation by international
law. We show that armed struggle played a central role in this attempt to
assert a Palestinian political identity, which gave the question of the dis-
tinction between the national liberation fighter and the civilian population
a particular significance for the Palestinian movement. In the period lead-
ing up to the diplomatic conference, this movement’s key task had been
to affirm the unity of these two figures, the farmer and the fighter, as a
means to reconstitute a Palestinian people. This task was existential and
political before it was legal.23 At stake was the very existence of a Palestin-
ian people, with a right to self-determination and a right to return to their
land. Yet, however much Palestinians succeeded in asserting their rights to
make law and war at Geneva, the attempt to fight this battle on the terrain
of international law inscribed this struggle within a framework that was
ultimately designed for states. Paradoxically, in acquiring state-like juridi-
cal recognition and status, Palestinians were increasingly forced to forgo
the existential dimension of their struggle. In line with this trajectory, as
Riccardo Bocco observes, “Palestinians as a stateless nation began to wit-
ness the formation of nationless state.”24
International Law and the Undoing of Palestine
In his 2006 self-elegy, In the Presence of Absence, the Palestinian national

poet Mahmoud Darwish asks, “What does it mean for a Palestinian to be a
poet and what does it mean for a poet to be Palestinian?” He answers, “In
the first instance: it is to be the product of history, to exist in language. In
the second: to be a victim of history and triumph through language.” For
Darwish “both are one and the same and cannot be divided or entwined.”25
Darwish, as a former member of the Executive Committee of the Palestine
Liberation Organisation and a drafter of some of its most eloquent state-

ments, did not simply express his own predicament as a poet; rather he
articulated the historical and existential conditions of the modern Palestin-
ian experience. Darwish’s questions and answers formed the conceptual
and political backbone of the Palestinian understanding of both their exis-
tential situation and their political vocation.
In the period prior to the Diplomatic Conference, the revolutionary
Palestinian project had to range itself against existing institutions, vocabu-
laries, and practices that failed and diminished the Palestinian people. His-
torically, Palestinians were reluctant to use the language of international
law, but they were often compelled to participate in its operations. They
feared that the ways in which they were written in and out of international
legal texts precluded from the outset the very possibility of achieving their
political aspirations. As early as the British Mandate period, Palestinians, as
Natasha Wheatley notes, remained “aloof from the very name ascribed to
them” in the League of Nations Mandate’s terms of reference.26 Wheatley
cites a 1930 petition to the League of Nations in which the Arab Execu-
tive Committee, representing Palestine’s Arab population, attempted to
show that “His Majesty’s Government had violated the rights of the Arabs
which were recognized even by the Mandate,” while at the same time stat-
ing that the petition “should not be considered as an expression on the part
of the Executive Committee of their acceptance of the Mandate.”27 Acutely
aware of the discursive and geopolitical limitations that shaped its speaking
position, the Executive Committee sought to hold the Mandate author-
ity responsible to its own terms of reference without accepting the juridi-
cal categorizations it ascribed to the Palestinian people. In other words, it
made a concession to the overpowering regulative force of the Mandate
but rejected its constitutive force and refused to be conscripted by it. For
the Palestinians, the Mandate was not the “sacred trust of civilization” it
claimed to be; rather it was an outright instrument of British colonial rule.
In 1972, Fayez Sayegh, a former member of the Executive Committee
of the PLO, compiled an inventory of what he called “the international
infringements on the rights of Palestinian people and the international
aggression on its dignity and existence over fifty years.”28 Sayegh noted that
each of these occurred in November: on November 3, 1917, Britain issued
the Balfour declaration, which was later incorporated into the text of the
British Mandate in Palestine. On November 29, 1947, the United Nations
General Assembly partitioned Palestine against the will and the interest of
the Palestinian people, giving 55 percent of the land to the Jewish minor-
ity. And finally, on November 22, 1967, the UN Security Council adopted
Resolution 242, following the Israeli victory over Egypt, Syria, and Jordan.
For Sayegh, Resolution 242 was a particularly flagrant aggression because,
while the Balfour Declaration referred to “the civil and religious rights of
existing non-Jewish communities in Palestine” (albeit without “specifying
explicitly the Palestinian identity” of these communities), and the partition
plan gave the Palestinian majority a portion of the land, Resolution 242
“completely ignored the Palestinian people.”29 In Sayegh’s inventory, over
a 50-year period, parallel to their displacement and dispossession, Palestin-
ians were recast in international law; from being included by exclusion,
as communities without political and national rights, they became merely
nameless refugees.
The statements of the incipient Palestinian resistance movement after
1948 viewed international legitimacy and law with suspicion. A Fatah
pamphlet on “The Structure of Revolutionary Construction” published
10 years after the Nakba indicted “international conscience” for having
“disposed of all notions of justice, right and fairness” and ignored “the
principles of human rights and the UN charter.”30 The first edition of the
Sarkht Filastinnana (Cry of Our Palestine) bulletin, which the Fatah move-
ment published in Algeria in 1964, declared that the reality of the past 16
years attested “that the solution to our cause is neither through the United
Nations, which has been unified over our victimization. Nor through the
still born resolutions of the Arab league.”31 A similar stance was expressed
by Ibrahim al Abd, a senior editor of the analytical and theoretical journal
of the Palestinian Liberation Organization Shu’un Filastiniyya (Palestinian
Affairs). In a 1971 review of the veteran Palestinian jurist Henry Cattan’s
book Palestine: The Road to Peace, al Abd argued that “appealing to human-
itarian justice and international law [was] idealistic and unrealistic” and
criticized Cattan for proposing a solution for the question of Palestine that
focused on “the legal aspects” instead of highlighting “the struggle of the
Palestinian people.”32 These statements expressed a prevailing Palestinian
sentiment that the law was, at best, a tool of the powerful. In contrast, revo-
lution or “armed resistance” was conceived as a means of self-annunciation
and representation, in contradistinction to the external structure of recog-
nition provided by international law.33
Resolution 242 was a literal translation of the balance of forces after
the Arab defeat in the 1967 war with Israel. For the Palestinian movement,
Resolution 242 represented the crowning of what the Palestinian anthro-
pologist Esmail Nashif describes as a structure of annulment “wherein the
Palestinian collective (since 1948) becomes superfluous, a legacy from the
past that no one needs anymore.”34 In rendering the Palestinians nameless,
Resolution 242 contributed to what Nashif calls “the practice of the Pal-
estinian’s death by the Zionist procedure”—a term he uses to designate an
attempt to disarticulate the relation between the Palestinian individual and
the Palestinian collectivity. Such a procedure sought to dissolve the social
“nexus of his or her time and space” and turn Palestinians into indiffer-
ent “individuals who no longer need their collective in order to survive.”35
This took a particularly stark form in the areas occupied by Israel after the
1967 war; in the West Bank and Gaza, as Neve Gordon notes, “Palestin-
ian national symbols were outlawed, Palestinian history was banned and
erased, and any attempt to produce a national narrative that could unite
and help mobilize Palestinian society was censored.”36
Repatriation, moving “from being in exile to becoming a Palestinian once
again,” as Edward Said puts it, required forging a nexus to stand in for the
missing space-time coordinates of Palestinian life and to enable a reart-
iculation of the relationship between individual biographies and collective
history.37 Echoing the 1964 Cry of Our Palestine bulletin’s pleas for a “pop-
ular Palestinian revolution,” Palestinians increasingly ranged themselves
against the annulment structure that had rendered the Palestinian collec-
tive superfluous. For Sayegh, looking back in 1972, what the realpolitik of
Resolution 242 had failed to take into consideration was “the full meaning
of the appearance of the Palestinian resistance with its future prospects.”38
Farmer by Day, Fighter by Night
As the scale of the Arab states’ defeat in 1967 became apparent, the mod-
ern Palestinian national liberation movement emerged to announce the
reemergence of the Palestinians as a political subject after two decades
of “a political living death” in refugee camps across the Levant.39 In a
matter of a few years, the guerrilla movement institutionalized itself
through the Palestine Liberation Organization, which came to embody a
national political identity capable of making claims for repatriation and
self-determination.40 The figure of the guerrilla fighter, the Fida’i, at once
symbolized the emergent Palestinian identity and the assertive Palestin-
ian agency. The Fida’i came into being as an “annunciatory figure” who
deployed the language and practice of armed resistance to restage the
Palestinian as a sovereign figure with the prerogative to narrate.41 The
audibility of the fighter reestablished the visibility of the farmer. “Etymo-
logically,” as Helen Kinsella notes, “visibility is both a condition or state
of being and the capacity to be seen.”42 In the Palestinian experience, the

refugee gave birth to the annunciatory figure of the fighter, who in turn
made the refugee visible as Palestinian. The intimate relation, rather than
the distinction, between the farmer and the fighter became central to
the reconstitution of a Palestinian people. The moment the figure of the
Fida’i distinguished the Palestinian was the same moment all Palestinians
became indistinguishable from the Fida’i.
Edward Said was one of the many individuals who “the shock” of the
1967 war drove “back to where it had all started, the struggle over Pales-
tine.” After 1967, Said explained, “I was no longer the same person.”43 He
arrived in Amman in the late 1960s to join the incipient Palestinian “effort
at repatriation.”44 Said’s return to “where it had all started” exemplified the
rearticulation of Palestinian biographies and collective history of the period.
In his landmark 1969 article “The Palestinian Experience,” Said opted to
link the personal and the public in order to “reduce the difficulty of writing
about the Palestinian experience in a language not properly its own.”45 This
link served not only to reestablish Said’s relationship with the collective Pal-
estinian repatriation project but also to establish his prerogative to narrate.
Said meditated on the multiple expressions of the link that reestablishes the
Palestinians’ relationship to their own history and to their potential destiny.
In particular, he observed that in Amman of the late 1960s “two ways of
life enclose all other ways, which finally connect the two. These two being
a refugee in a camp and being an active member of one of the resistance
groups.”46 To echo Darwish, the two “are one and the same.”
The year 1967—as a new beginning, rather than as an end, of the
Israeli Palestine conflict—marked a resumption of the direct confronta-
tion between what Nashif calls “the practice of the Palestinian’s death by
the Zionist procedure” and a resurgent Palestinian identity. Critically, this
was an identity that self-consciously perceived existence not as a product
of an immutable essence but rather as an outcome of human actions.47 As
Said put it, the Palestinian “has only himself to consider now, and what he
discovers, by whatever technique he uses, is how he is a Palestinian—or
rather, how he has already become a Palestinian and what this must mean
for him.”48 Throughout the 1970s, much of the PLO’s effort went into
articulating the moral, political, and aesthetic connections between the
refugee and the resistant (or, put differently, between the farmer and the
fighter). Having lost faith in existing institutions, ideologies, and practice
after two decades of “living death” in refugee camps, armed struggle func-
tioned as a resource in a process of national repatriation. The “imagery and
language of armed struggle,” as Yazid Sayigh argues, “gave new substance

to the imagined community of the Palestinians.”49
Referring to armed struggle as “a central, comprehensive and multi-
dimensional process,” the assassinated senior Fatah commander Khalil al-
Wazir (Abu Jihad) remarked, “this is how we have proceeded to rebuild
our people and reassert its national identity, in order to achieve its aim
of return and liberation of the land.”50 Armed struggle, in al-Wazir’s for-
mulation, was conceived as a political and pedagogical project that linked
agency with insurgency. This project conditioned reclaiming Palestine, as
a physical space, on reclaiming the Palestinian as revolutionary political
subject. This understanding of the function of armed struggle animated
both the politics and aesthetics of the Palestinian movement in the period
after the 1967 war. A 1969 cover illustration of a Fatah bulletin captures
the multidimensional process that al-Wazir alludes to. Over an illustra-
tion depicting the mutual embrace of a Palestinian fighter and an elderly
Palestinian woman in front of a refugee camp, with children playing in the
background, the caption reads: “The Palestinians: refugees 1948, revolu-
tionaries 1965.”51
Although the Palestinian armed resistance never posed any serious
military threat to the Jewish state, Israeli reprisal attacks against vari-
ous Palestinian communities were conceived by Palestinians neither as
defensive nor simply as punitive but as eliminative by intent. For the Pal-
estinians, the military actions of the Israeli state stemmed not from mili-
tary necessities but rather from the Zionist logic of the state. Already in
1965, Fayez Sayegh’s Zionist Colonization in Palestine had argued that the
Zionist settler state was characterized by three features: its racial com-
plexion and racist conduct; its addiction to violence; and its expansionist
stance, which manifested in a passionate zeal for the “expulsion of native
populations across the frontiers of the settler state.”52 Israeli attacks on
Palestinian civilians, from this perspective, were attacks against the grow-
ing visibility and audibility of the Palestinian people as agents of their
own destiny. To illustrate this point, the PLO revolutionary filmmaker,
Mustafa Abu Ali, took the 1969 remarks of the former Israeli prime min-
ister Golda Meir that the Palestinians “did not exist” as the title of his
makeshift documentation of the Israeli Air Force’s 1974 obliteration of
the Nabatieh refugee camp in South Lebanon.53 For Israelis and Pales-
tinians alike, the disassociation between the Fida’i and the refugee was
not a simple matter of distinction; it was a matter of the decimation of a
militant, collective Palestinian identity.
An Arab Hanoi
Having refused to rely on the categories assigned to them in the crev-

ices of international law, and having divested themselves of the ailing Arab
anticolonial project, the Palestinian movement commenced a search for
universal political vocabularies that could name their experience without
diminishing it. Following the 1967 war, when “the state would fail to liber-
ate both people and land,” a new generation, as Yoav Capua notes, turned
to thinkers such as Frantz Fanon and Che Guevara to articulate a “state
free liberation exercise.”54 In August 1967, in the immediate wake of the
1967 war, Fatah published 14 pamphlets in the series “Revolutionary Stud-
ies and Experiences,” including one on the Vietnamese revolution and a
shorter study of the Algerian revolution. These positioned the Palestinian
struggle within what Paul Thomas Chamberlin calls a “new global political
geography” that united the “forces of liberation” (Palestine, Cuba, Viet-
nam, China, and Algeria) against the forces of imperialism (the United
States, Rhodesia, South Africa, and Israel).55 In Algiers, Hanoi, and Havana
the newly re-constituted Palestinian movement found a new “commonal-
ity of aspirations and fate”—and new political and military models.56 It
was within this community of fate and action that Palestinians represented
their struggle as a Third World liberation movement and reimagined
themselves “as a stateless nation of liberation fighters rather than a group
of Arab refugees.”57
Just as General Giáp stressed that the Vietnamese struggle had “known
how to apply creatively the experiences gained in the recent revolutionary
struggles in the world such as in Cuba and Algeria,” the Palestinians sought
to apply the lessons of these struggles, and that of the Vietnamese them-
selves, to their own situation.58 In March 1970, when Arafat and his deputy
Salah Khalaf travelled to Hanoi for a two-week tour, General Giáp told them,
“The Vietnamese and the Palestinian people have much in common [. . .] just
like two people suffering from the same illness.”59 One aspect of that illness,
both parties believed, was that they were faced with adversaries who refused
to spare their civilian populations. The Fatah newspaper greeted the 1968
My Lai massacre, for instance, by explicitly linking it to the most infamous
massacre that took place during the founding of Israel as a state: “Vietnam
has its Deir Yassin,” the headline read, referring to a 1948 massacre in a town
whose name had come to epitomize Zionist atrocities.60
Just as the PLO learned from the North Vietnamese and the Vietcong,
the Israelis learned from the US counterinsurgency operation in Vietnam.
In 1966, four years before Arafat’s visit to Hanoi, Moshe Dayan, who would
become Israel’s defense minister, toured South Vietnam to study the Amer-
ican war effort.61 Although he concluded that, for all their military superi-
ority, the United States could not eradicate support for North Vietnam’s
independence struggle, Dayan refused to view the Palestinian fedayeen as
a similar political threat. Palestinian nationalism was a fabrication, Dayan
believed, as there was no authentic Palestinian political identity.62
As the Israeli response to the reemergence of the Palestinian move-
ment embraced a logic that sought to negate the very notion of Palestinian
people, the various Palestinian factions echoed the Algerians and the Viet-
namese in conceiving their struggle as a “people’s war.” This designation
lacked the political and strategic precision that it had in Vietnam, where
Giáp defined the people’s war as a “long and vast guerrilla war” in which
the people as a whole took part.63 In the Palestinian context, the “people’s
war” did not simply designate a specific mode of strategic conduct; rather
it named the antagonistic and existential nature of the Palestinian struggle
to reconstitute a Palestinian people. “A people’s war” (or a war of the revo-
lutionary masses), a 1970 Fateh pamphlet contended, “is the end result of a
combination of two types of struggle—armed struggle and political strug-
gle.”64 The idioms of armed struggle and people’s war established a congru-
ence between how the Palestinians represented and understood themselves
and how they were represented by the struggling people of the world.
Along with Hanoi, Algiers—which Elaine Mokhtefi so vividly portrays
as the “Third World Capital” of freedom fighters and revolutionaries—
played a major role in the evolution of the Palestinian revolutionary world-
view, offering inspiration, training, and communication.65 In 1963, Khalil al-
Wazir (Abu Jihad) arrived in Algiers to head the Palestine Office, enabling
him to forge relationships with the various anticolonial missions that dot-
ted the Algerian capital. In a joint 1964 communiqué, the Palestine Office
and the Viet Cong mission hailed Algeria as a role model “that believed in
armed revolution to achieve freedom and independence.” The communi-
qué praised Algeria for its support of “the struggle of peoples fighting to
achieve their independence” and it exposed “the barbaric actions of colo-
nialism that aim to dismember/dismantle [colonized] peoples, subjugate
and enslave them.” It ended with a call to “end all criminal savage action
against both the Palestinian and Vietnamese peoples.”66 The joint call from
Algiers addressed itself to a community of suffering and overcoming that
included both the Palestinians and the Vietnamese.
Palestinians were now part of a counter universal project of solidar-
ity and identification based on the principles of self-determination and
equality, whose actors were endowed with a moral and ethical standing
that licensed their international advocacy and underpinned their solidar-

ity. Buoyed by two decades of successful decolonization campaigns, these
actors dreamed not simply of challenging the status quo but of changing
the very logic and authorities that governed international relations. In a
1971 exchange with the Organization of Solidarity of the Peoples of Africa,
Asia and Latin America (OSPAAAL), Shafiq al-Hout, a leading PLO activ-
ist, expressed a new logic and embrace of new authorities. Al-Hout claimed
that when it comes to Palestinian legitimate rights, “it is very important to
know who is speaking of them.”67 Referring to a recent speech in which the
Cuban Foreign Minister Raul Roa spoke of “the legitimate rights of the
Palestinians,” al-Hout noted that “Raul Roa represents the Cuban Rev-
olution and his concept of legitimate rights is different from ‘legitimate
rights’ according to the way the North Americans in Washington under-
stand them.”68 For al-Hout, Palestinians were “not a company asking for
legitimate rights” but “a nation fighting for national rights, for liberty, for
the reunification of the homeland.”69 Palestinians, in al-Hout’s estimation,
were not simply conventional rights claimers; they were a revolutionary
people in the company of new lawmakers.
The new political geography within which al-Hout positioned the
question of Palestinian rights soon made itself felt in the rarefied realm
of international law. In 1968, the United Nations Conference on Human
Rights was held in Tehran, in the wake of the 1967 war and two weeks
after the Tet Offensive. Both conflicts left their marks on the proceedings.
“Arab states and their supporters used the conference as a weapon to attack
Israel,” an observer writes, and the “shadow of the Vietnam conflict” hung
over both the Conference and the subsequent development of the laws of
armed conflict.70 Most significantly, the Conference passed a resolution
on human rights in armed conflicts that created the momentum that led
to the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts in Geneva
in 1974. As well as calling on the UN to consider the need to develop
international humanitarian law, the resolution noted that “minority racist
or colonial régimes . . . frequently resort to executions and inhuman treat-
ment of those who struggle against such régimes,” and considered that, if
detained, such persons should be treated as prisoners of war.71
For the Palestinians, however, the “people’s war” waged on the diplo-
matic front was not matched by military or political success on the ground.
As Palestinian fighters, particularly left-wing factions, dreamed of their
own Arab Hanoi from which to launch their own people’s war, Arab host
states reconsolidated themselves after the flux of the 1967 war and bru-
tally brought this dream to a halt. In September 1970 and August 1971,
the Jordanian monarchy crushed the Palestinian guerrilla movement. In

Syria Hafez al-Assad ousted the leftist faction that supported the Pales-
tinian movement. And in Iraq, the Bath regime increased its grip on the
state. Across the Levant, Arab states turned on the Palestinian movement,
forcing it to seek sanctuary in Lebanon. The limited 1973 October war
between Israel, Egypt, and Syria revealed that, in the battle between states,
there is little space for a stateless people. United Nations Security Council
Resolution 338 called for a cessation of hostilities and affirmed Resolution
242. In the new situation, the rhetoric and the practice of armed struggle
and people’s war continued to provide unbending inspiration, but the Pal-
estinian movement had to contemplate new options to measure up to the
wall-to-wall consolidation of states across the region. These new develop-
ments reconfigured the already existing tension in the PLO between the
imperatives of nation-building and those of state-building.
At a roundtable meeting of the leadership of the main Palestine fac-
tions, held in February 1974, the same month the Geneva Diplomatic
Conference got underway, Nayef Hawatmeh, the secretary general of the
Democratic Front for the Liberation of Palestine, argued that the PLO
needed to adopt “a new formula to outmanoeuvre the expected new situ-
ation when the war between Israel and the Arab [states] formally ends.”72
In June of the same year, a simple majority of the Palestinian National
Council supported the Ten Point Program that stated that “[t]he Libera-
tion Organization will employ all means, and first and foremost armed
struggle, to liberate Palestinian territory and to establish the independent
combatant national authority for the people over every part of Palestin-
ian territory that is liberated.”73 Despite its reference to armed struggle,
the Ten Point Program at once downgraded its dominant role as the sole
instrumental means of liberation and implicitly accepted a limited terri-
torial compromise instead of collective national repatriation. Overall, the
statist drive shifted the PLO’s focus from solidarity and identification to an
obsessive search for international recognition. It was these imperatives of
admission and recognition that drove the PLO’s participation in the draft-
ing of the Additional Protocols to the Geneva Conventions.
States in Exile
In his encyclopedic book Armed Struggle and the Search for State: The Pal-
estinian National Movement, 1949–1993, Yazid Sayigh describes the years
of 1967–1972 as “years of revolution” and the years of 1973–1982 as “the
state-in-exile” years. While in the first period armed struggle reasserted

Palestinian identity and demarcated a common Palestinian political space
distinguished from the surrounding Arab space, in the second period
(which covers the entire period in which the Additional Protocols were
drafted) the role of armed struggle was to secure a Palestinian state among
a system of states and further “the internal processes of Palestinian state
building, even if they took place in exile.”74 This “acceptance of a state-
centric global order,” as Noura Erakat notes, entailed significant risks for
the Palestinian struggle—not least of which was that of accepting Israeli
sovereignty in exchange for a truncated Palestinian state.75
In this statist imaginary, Algeria again provided the PLO with a role
model, a contact and a strategy. In a visit to Algeria, Arafat embraced a
suggestion by the Algerian president, Houari Boumediene, that “it is time
for the revolution, Fatah, to start its international activity from Europe.”76
For this task Arafat sent Mahammed Abu Mayzar to Paris. To support Abu
Mayzar in his mission, Boumediene dispatched the veteran Mohammad
Yazid, a principle architect of what Matthew Connelly describes as Alge-
ria’s “diplomatic revolution.”77 According to Connelly, the main achieve-
ment of the Algerian revolution was diplomatic rather than military. In
1955, Mohammad Yazid headed the FLN’s mission in New York, where he
lobbied members of the United Nations, the American administration, and
Western public opinion to support the Algerian struggle. From 1958 to
1962, Yazid served as information minister of the interim Algerian govern-
ment.78 In Paris, Yazid introduced Abu Mayzar to the many connections he
had made at the United Nations. And later Boumediene appointed Yazid as
Algerian ambassador in Beirut where the Palestinian movement was based.
The Palestinian delegation at the Geneva Diplomatic Conference
also learned from the Algerians about how to engage on the terrain of
international humanitarian law. The pressure of participating in an inter-
national lawmaking body required that the language of national libera-
tion be translated into the language of international law and put a new
premium on legal expertise. This work of translation was largely under-
taken by what Umut Özsu refers to as a “small but ambitious group of
mid-to late-twentieth-century jurists who hailed from Asia, Africa, and
Latin America, received elite training in Europe and the United States”
and subsequently established themselves as leading figures in the world of
international law.79 At the Geneva Diplomatic Conference, the PLO legal
advisor Chawki Armaly—a Palestinian Christian from the Galilee who
received a law degree from Beirut’s Jesuit St Joseph’s University in the early
1960s—learned from jurists who had already paid substantial attention to
the field of international humanitarian law. Here the key figures were the
Algerian jurist Mohammed Bedjaoui, whose seminal text Law and the Alge-
rian Revolution crystallized the issue of the denial of privileged belligerency
to national liberation fighters, and the Egyptian Georges Abi Saab, who
played a central role, both at the UN and at the Diplomatic Conference, in
working to secure combatant status for national liberation fighters.
In his 1961 book Law and the Algerian Revolution, Bedjaoui, Algerian
foreign minister and ambassador to France during the Algerian War, chal-
lenged a legal order in which colonial governments could treat national
liberation fighters as domestic terrorists or criminals who could be “tried,
sentenced to death and executed.”80 The Algerian Front de Libération Natio-
nale (FLN) was central to the campaign to grant privileged belligerent sta-
tus to national liberation fighters. Along with the practical military advan-
tages this would entail, the Algerians had recognized early that the laws of
armed conflict and the international humanitarian system offered another
battleground for their struggle against the French. While on the ground
the FLN fought a guerrilla war on its own terms, Yazid and his team in
New York fought the French on their own terms; in this contest, the
French humiliatingly came up short of their own standard of civilization.
In 1957, the Algerian Red Crescent was established both to monitor
French violations of the Geneva Conventions and to gain international rec-
ognition by establishing a direct relationship with the ICRC in Geneva.81
As the French depicted Algerians as “savages” who “neglect all the laws and
customs of law,” the FLN newspaper regularly discussed French violence
and torture as barbarous violations of the laws of war.82 Drawing explic-
itly on the language of “civilization,” the FLN depicted French refusals to
apply the laws of war as contrary to the “humanitarian principles of justice
and compassion” that must “govern and determine the treatment of man
by man if our civilization is to be worthy of the name.”83 Mobilizing this
language and the humanitarian system against the French, the Algerians
released a “White Paper on the Application of the Geneva Conventions”
(1960) and formally acceded to the Geneva Conventions.84 The aims of
this strategy were not only humanitarian; as Helen Kinsella notes, accept-
ing the laws of war facilitated FLN claims that “Algeria was competent,
rational, and, most importantly, civilized enough to demand and deserve
self-rule.”85
International admission and recognition similarly became a main objec-
tive of the mainstream leadership of the Palestinian movement. Symboli-
cally, when Yasser Arafat, the chairman of the Palestine Liberation Orga-
nization, addressed the United Nations General Assembly in 1974, he was
given the floor by Algeria’s then-foreign minister, Abdelaziz Bouteflika,

who had accepted the presidency of the General Assembly one year earlier
on behalf of “generations of freedom fighters who contribute to making
a better world with weapons in their hands.”86 In his speech, which was
the most significant achievement of this Palestinian drive for recognition,
Arafat depicted the strategy of what he called Israeli “settler colonialism”
as an attempt to reduce the Palestinians to “disembodied spirits, fictions
without presence, without traditions or future.”87 Speaking “in the name of
the people of Palestine,” Arafat began by acknowledging Bouteflika’s place
in what he termed the “vanguard of the freedom fighters in their heroic
Algerian war of national liberation.” Yet if Algeria was once the inspiration
for anticolonial guerrilla fighters, it was now also a model for postcolonial
states. Appealing to those statesmen who had once stood in the position of
the rebel that he now occupied, Arafat asked that, having converted their
own dreams into reality, they now share in his revolutionary dream. But
the United Nations was not a place for revolutionaries. The belatedness
of the Palestinian national liberation movement inscribed Arafat’s dream
within a clear teleology—from the rebel to the statesman, from the people
to the state.
“The New Law of the People’s War”
At the Geneva Diplomatic Conference, the Palestinian delegation framed

itself as a state in waiting. Recognizing that national liberation movements
had a right to fight, Abi Saab noted in retrospect, meant recognizing their
“embryonic sovereignty.”88 Armaly told the conference that the PLO
would sign the conference’s Final Act, “not only for the protection of the
civilian population of Palestine but also for the greater good of its adver-
saries,” since it was ready to comply with all principles of the Protocols.89
Just as the Algerians had mobilized the ICRC and the humanitarian sys-
tem to facilitate international recognition, Armaly contended that the PLO
“had always offered its co-operation to international humanitarian bodies
and the Palestinian Red Crescent worked in close collaboration with the
ICRC.”90
The PLO’s recourse to international mechanisms and international law
was far removed from the earlier suspicion expressed by the Cry of Our
Palestine bulletin. For the PLO, Abi Saab recalls, “the primary concern was
achieving legitimacy of their organisation and their cause, rather than the
technical aspects of it.”91 Yet, for the Palestinians, the significance of the
question of the distinction between the farmer and the fighter went far
beyond its technical legal significance. The critical question was whether
the Palestinians could participate in the realm of international humanitar-
ian law without disavowing the work of the previous decade in knitting
together the revolutionary and the refugee. The Palestinians were well
aware that they faced an adversary who, in the words of Israel’s Colonel
Shlomo Gazit, head of intelligence coordination in the Occupied Territo-
ries, aimed to “isolate the terrorist from the general population and deny
him shelter and assistance, even though the natural sympathy of that popu-
lation is with the terrorists and not the Israeli administration.”92
In a 1974 interview, Armaly highlighted the PLO’s emphasis in the
drafting process on the “legal situation of prisoners of war . . . who are
facing the cruellest forms of treatments, not worthy of human beings” and
whose struggles “should receive the same international protection as mem-
bers of regular armies.”93 In contrast to those who depicted such demands
for privileged belligerent status as a threat to civilians, Armaly stressed that
the PLO delegation had focused “on the protection of the civilian popu-
lation from the arbitrary methods and action of the Zionist entity. . . .”
From such a perspective, the demand that national liberation fighters be
recognized by international humanitarian law was not a distraction from
civilian protection but a means toward it. It is “important,” Armaly told his
interviewer, “to reaffirm the articles related to [civilian] protection, add
new ones, ensure their application and prevent Israel from continuing its
violation of the 1949 Geneva Convention.”94
Throughout the ICRC Diplomatic conference, the question of the
relation between national liberation fighters and civilian populations
was among the most sensitive question for many delegations. It was the
North Vietnamese delegate Nguyen Van Huong who argued most force-
fully against the separation of the two. Throughout the proceedings, the
North Vietnamese defended an amendment that would grant prisoner of
war status to any captured members of a liberation movement, regard-
less of whether or not they fulfilled the conditions outlined in the 1949
Geneva Conventions, and carried arms openly, wore a distinguishing
insignia, and “distinguished themselves from the civilian population.”95
According to Nguyen, these conditions presupposed conflicts between
relatively equal parties each of whom could retaliate on the other’s ter-
ritory, and assumed that the activities of militias or volunteer corps
remained “completely distinct from the life of the civilian population.”96
Conflicts between profoundly unequal powers, like the US war in Viet-
nam, he argued, required a different set of rules that would allow the
weaker party to mobilize its key advantage: its proximity to the people. In
contrast to the image of the passive civilian that animated the advocacy
of the Western states, Nguyen stressed that national liberation armies are
“inseparable from the civilian population.” “This,” he told the confer-
ence, “is the new law of the people’s war.”97
In retrospect, Abi Saab stressed that, in asymmetric conflicts, guerrilla
fighters lack advanced weaponry and therefore “have to follow the ‘fish in
the water’ theory of Chairman Mao, and rely for all their support systems,
whether logistical, political or otherwise, on the local population.”98 Tra-
ditionally, Abi Saab noted, major powers have resorted to two tactics to
reduce the advantages of invisibility and mobility held by guerrillas who
operate in the midst of the civilian population: either they have sought to
cut them off from their mass base, often through forced relocation of civil-
ians in what amount to “concentration camps,” or they have determined “to
treat every civilian as a potential combatant or a hidden guerrilla fighter
to avoid taking any chances.”99 In both cases, he stressed, the implications
for civilians are “ominous”: in the first scenario, areas from which civilians
have been relocated are then treated as “free-fire zones” and attacked with-
out discrimination, destroying the “very possibility and the natural bases of
life and economic activity in such zones.”100 In the second scenario, civil-
ians are tortured, interned, expelled, and subjected to collective reprisals,
extending to the destruction of houses and villages. In highlighting the
violence military powers used to separate civilians from combatants, Abi
Saab challenged those who argued that only a clear distinction between the
two protected civilians from harm.
By the end of the Diplomatic Conference, when a new article on com-
batant status and prisoners of war was adopted (now Article 44 of API),
most Third World delegates were prepared to support it in what Abi Saab’s
Egyptian colleague Mohammad Talaat Al Ghunaimi called “a spirit of com-
promise.”101 Along similar lines, the Algerian delegate gave special thanks
to the US delegate George Aldrich and Nguyen Van Luu (by then head of
the delegation of the Socialist Republic of Vietnam) for the particular work
they had done on the draft article, which he depicted as a “symbol of the
genuine cooperation” that had produced it.102 Nonetheless, in line with the
previous Vietnamese objections to the requirement that national liberation
fighters distinguish themselves, Al Ghunaimi spoke for many Third World
delegations when he clarified that his delegation believed that a “guerrilla
fighting for a just cause was a legitimate incognito combatant” and should
be given the benefit of the doubt “whenever freedom of movement required
disguise at any stage.”103 Nguyen Van Luu similarly expressed “great satis-
faction” that the new article established the legal status of people’s wars and
ensured that under certain circumstances, combatants fighting for their
“national and social emancipation” were now “allowed to fight without dis-
tinguishing themselves from the civilian population.”104
According to these interpretations, international humanitarian law
had now vindicated guerrilla warfare and affirmed the right of guerrillas
to fight without distinguishing themselves in all circumstances. However
controversial these interpretations were at the time, and have remained
since, Article 44, as Amanda Alexander notes, brought about a more fluid
understanding of the combatant, who “can now be a peasant by day and a
guerrilla by night.”105 Alexander suggests that while “it might be expected
that acknowledging that a civilian could also be a guerrilla would make
their position more precarious,” instead “the opposite happened” as API
enshrined a new imperative to protect the civilian population.106 For the
Israeli delegate, Ruth Lapidoth, in contrast, explaining her delegation’s
lone vote against Article 44, the thrust of the article was indeed to allow
guerrilla fighters to fight without distinguishing themselves from the civil-
ian population. It thereby threatened, she argued, “the only way in which
the civilian population could be effectively protected.”107 In 1977, though
many other states shared similar reservations, Israel’s delegation was alone
in voting against both Article 44 and API as a whole. The Palestinians were
on the winning side of the legal battle, but they did not win the war.
Conclusion
The Pakistani intellectual Eqbal Ahmad once remarked that “at the dawn
of decolonization, Palestine was colonized.”108 As Indonesia and India
paved the way for the global wave of decolonization in the late 1940s, Pal-
estine fell into the hands of a colonial settler project. And at the dusk of
decolonization, as the conclusion of both the Vietnam War and the Por-
tuguese colonial empire ended a major sequence of anticolonial liberation
struggles, Palestinians relaunched their own national liberation struggle.
By the end of the Geneva Diplomatic Conference, most of the delega-
tions that supported applying API to “armed conflicts in which people are
fighting against colonial domination and alien occupation and against rac-
ist régimes in the exercise of their right of self-determination” recognized
that their own armed struggles lay in the past. The Palestinians were more
future-oriented, seeking to use the force of law to protect their civilians
and secure their rights.
Explaining why the Israeli delegation had not supported Article 44

of API, Lapidoth had argued that, not only would it increase the risk of
terrorism, it would also make the civilian population “an object of suspi-
cion” to “the regular combatant who would have to search for and fight
his enemy in the midst of the civilian population.”109 Israel, as we have
seen, has not ratified API, nor has it applied Article 44 to its conflict with
the Palestinians. Its military forces have nonetheless continued to treat the
civilian population of Palestine with suspicion. Rather than a dangerous
side effect of extending combatant status to national liberation fighters,
such suspicion has been a constant feature of colonial wars and, in Israel’s
case, has resulted in significant death and destruction—from the massacres
that accompanied the Nakba in 1948 to the 2014 decimation of the Shu-
jaya district of Gaza.110 This suspicion has an obvious foundation; as Yoram
Dinstein acknowledges, Israel’s regime of occupation is “not derived from
the will of the people” and is “not designed to ‘win the hearts and minds’ of
the local inhabitants”; “its foundation,” rather, “is the ‘power of the bayo-
net.’”111 Founded on violence, this regime of occupation has therefore faced
regular resistance; “every time an IDF [Israel Defense Force] force enters
an Arab village,” Military Advocate General Yahav complained during the
First Intifada, “the soldiers encounter resistance from local villagers.”112
In 1982, Ariel Sharon, then Israeli defense minister, besieged Beirut,
the base of the PLO, for almost three months in an attempt to enforce the
separation between the fighter and the refugee once and for all. The PLO
ultimately agreed to leave Beirut to spare the lives of Palestinian and Leba-
nese civilians, after the American administration provided assurances that
Palestinian civilians in the refugee camps would face no harm. Weeks later,
Israel allowed the Lebanese right-wing forces into the Palestinian refugee
camps, where they committed the infamous Sabra and Shatila massacre.113
While the PLO was forced once more into exile, Israel continued to fight
a war not just against Palestinian fighters but against the Palestinian peo-
ple. The starkest expression of this came in 2015, from Israel’s then-justice
minister Ayelet Shaked. On Facebook, she posted a long quote from Uri
Elitzur, the former advisor and speechwriter to Israel’s prime minister Ben-
jamin Netanyahu. Though written 12 years ago, Shaked wrote, Elitzur’s
statement “is as relevant today as it was at the time.”114 “The Palestinian
people,” the statement read, “has declared war on us, and we must respond
with war.”
Not an operation, not a slow-moving one, not low-intensity, not

controlled escalation, no destruction of terror infrastructure, no tar-
geted killings. Enough with the oblique references. This is a war.

Words have meanings. This is a war. It is not a war against terror,
and not a war against extremists, and not even a war against the
Palestinian Authority. These too are forms of avoiding reality. This
is a war between two people. Who is the enemy? The Palestinian
people.115
In the eyes of the Israeli state, it appears, the Palestinians acquired people-
hood only at the moment they appeared as an enemy to be annihilated.
NOTES
1. For the description of Dinstein, see “Introduction to Keynote Address: A

Tribute to Yoram Dinstein,” Vanderbilt University, accessed December 2, 2018,
https://wp0.vanderbilt.edu/jotl/2018/05/introduction-to-keynote-address-a-tribu
te-to-yoram-dinstein/
2. Yoram Dinstein, “The Recent Evolution of the International Law of Armed
Conflict: Confusions, Constraints, and Challenges Special Issue: The Law of Armed
Conflict: Keynote Address,” Vanderbilt Journal of Transnational Law 51 (2018): 711.
3. Karma Nabulsi notes that the “challenge of formulating the distinction
between lawful and unlawful combatants drove most aspects of the legal contro-
versy at conferences between 1874 and 1949.” Karma Nabulsi, Traditions of War:
Occupation, Resistance, and the Law (Oxford: Oxford University Press, 1999), 15.
And Amanda Alexander notes that despite the consensus during the drafting of
the Additional Protocols that there was a gap in the law that needed to be filled,
“guerrilla warfare was not virgin legal territory at the Diplomatic Conference.”
Amanda Alexander, “International Humanitarian Law, Postcolonialism and the
1977 ‘Geneva Protocol I,’” Melbourne Journal of International Law 17, no. 1 (2016):
7.
4. ICRC, “Treaties, States Parties, and Commentaries—Additional Protocol
(I) to the Geneva Conventions, 1977—44—Combatants and Prisoners of War,”
1977, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/470-750054?OpenDoc
ument
5. Chawky Armaly, in International Committee of the Red Cross, “Official
Records of the Diplomatic Conference on the Reaffirmation and Development
of International Humanitarian Law Applicable in Armed Conflicts” (Geneva, 77
1974), 53 (CDDH/SR.36).
6. International Committee of the Red Cross, vol. VI, 147.
7. As Karma Nabulsi notes, this “rosy and somewhat utopian” picture of the
impact of “traditional” wars on civilians ignored the violence wielded against civil-
ians by occupying powers in the course of the nineteenth century. Nabulsi, Tradi-
tions of War: Occupation, Resistance, and the Law, 36.
8. John F. Depue, “The Amended First Article of the Draft Protocol Additional
to the Geneva Conventions of 1949—Its Impact Upon Humanitarian Constraints
Governing Armed Conflict,” Military Law Review 75 (1977): 72.
9. Ruth Lapidoth, International Committee of the Red Cross, “Official

Records of the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed Conflicts,” vol. VI, 121.
10. International Committee of the Red Cross, vol. V, 204–5.
12. International Committee of the Red Cross, vol. XIV, 237.
15. Dinstein, “The Recent Evolution of the International Law of Armed Con-
flict,” 708.
16. Cited in ICRC, “Customary IHL—106. Conditions for Prisoner-of-War
Status,” accessed March 17, 2020, https://ihl-databases.icrc.org/customary-ihl/eng
/docs/v2_cou_il_rule106. This account is not accurate. The United States did sign
API but did not ultimately ratify it. On the US position, see Victor Kattan’s chapter
in this volume, “‘The Third World Is a Problem’: Arguments about the Laws of
War in the United States after the Fall of Saigon.”
17. ICRC, “Customary IHL—106. Conditions for Prisoner-of-War Status.”
18. Paul W. Kahn, “Imagining Warfare,” European Journal of International Law
24, no. 1 (February 1, 2013): 217. Kahn notes that the distinction between combat-
ants and noncombatants “is quite inconsistent with the revolutionary tradition of
modernity.” For good discussion of the existential stakes in modern warfare see Sib-
ylle Scheipers, On Small War: Carl Von Clausewitz and People’s War (Oxford: Oxford
University Press, 2018). Also at stake is what Neve Gordon and Nicola Perugini
have described as the “evisceration of one of [international law’s] foundational figures—
the civilian.” Nicola Perugini and Neve Gordon, “Distinction and the Ethics of
Violence: On the Legal Construction of Liminal Subjects and Spaces,” Antipode 49,
no. 5 (November 1, 2017): 1387, https://doi.org/10.1111/anti.12343
19. Depue, “The Amended First Article of the Draft Protocol Additional to the
Geneva Conventions of 1949—Its Impact Upon Humanitarian Constraints Gov-
erning Armed Conflict,” 93.
20. Chawki Armaly, in International Committee of the Red Cross, “Official
22. Depue, “The Amended First Article of the Draft Protocol Additional to the
Geneva Conventions of 1949—Its Impact Upon Humanitarian Constraints Gov-
erning Armed Conflict,” 96.
23. Victor Kattan provides a compelling legal argument that, upon the termina-
tion of the British Mandate in May 1948, “sovereignty was vested in the Palestinian
people.” Victor Kattan, From Coexistence to Conquest: International Law and the Origins
of the Arab-Israeli Conflict, 1891–1949 (London: Pluto Press, 2009), 137. Here our
focus is instead on the existential processes of self-constitution undertaken by the
Palestinian national movement in the period following the 1967 war, and the ways
in which that process impacted on the PLO’s position during the drafting of Addi-
tional Protocol I. As Neve Gordon notes, particularly in the wake of World War II,
the struggle of the colonized for self-determination, whether in Algeria or India,
was “intricately tied to and informed by the colonized inhabitants’ identification as
Algerians and Indians and the emergence of national movements.” Neve Gordon,
Israel’s Occupation (Berkeley: University of California Press, 2008), 93.
24. Riccardo Bocco, “UNRWA and the Palestinian Refugees: A History within
History,” Refugee Survey Quarterly 28, no. 2–3 (January 1, 2009): 241, https://doi.org
/10.1093/rsq/hdq001
25. Mahmoud Darwish, In the Presence of Absence, trans. Sinan Antoon (Brooklyn,
NY: Archipelago Books), 77.
26. Natasha Wheatley, “New Subjects in International Law,” in Patricia Clavin
and Glenda Sluga, eds., Internationalism: A Twentieth-Century History (Cambridge:
Cambridge University Press, 2017), 283.
27. Memorandum on the Palestine White Paper of October 1930 by the Arab
Executive Committee, prepared by Aouni Abdul-Hadi, December 1930, LNA
R2286, 6A/23373/224, cited in Wheatley, “New Subjects in International Law,”
283.
28. Fayez Sayegh, “Remarks on the Security Council Resolution 242,” Shu’un
Filastiniyya, no. 15 (1972), 5 (authors’ translation). Maktabah al-Mu’assasat al-
Dirasat al-Filastiniyyah [Library of the Institute of Palestine Studies (IPS)], Beirut.
29. Sayegh, “Remarks on the Security Council Resolution 242,” 11.
30. The Palestinian National Liberation Movement (Fatah), “Haykal Al-Bina’
al-Thawri [The Structure of Revolutionary Construction],” 1958, http://learnpales
tine.politics.ox.ac.uk/uploads/sources/588d709cc0cd4.pdf
31. A 1964 copy of the second edition of the Sarkht Filastinnana (Cries of Our
Palestine) reproduced in Khalil al-Wazier, Harakat Fateh: al-Bidyat (“Fateh Move-
ment: The Beginnings”), Majallat al-Dirasat al-Filastiniyya, no, 104 (Autumn 2105),
81 (authors’ translation).
32. Ibrahim al Abd, “Reviews: Cattan, Henry. Palestine: The Road to Peace,” Shu’un
Filastiniyya, no. 2 (July 1971), 184 (authors’ translation). Maktabah al-Mu’assasat al-
Dirasat al-Filastiniyyah [Library of the Institute of Palestine Studies (IPS)], Beirut.
33. This is not to discount Lori Allen’s argument that, throughout the history of
the Palestinian national movement, and especially in the period of decolonization,
sections of that movement held out what she describes as “false hope in a politi-
cal solution organized by international law.” We regret that, as Allen’s excellent
account of the history of Palestinian engagement with international law was pub-
lished after this chapter had been finalized and was in production, we were unable
to engage with her provocative argument in further detail. See Lori Allen, A History
of False Hope: Investigative Commissions in Palestine (Stanford: Stanford University
Press, 2021), 154.
34. Esmail Nashif, “The Palestinian’s Death,” a catalogue essay for Ahlam Shibli:
Phantom Home. Exh. cat. Museu d’Art Contemporani de Barcelona (MACBA), Jeu de
Paume, Paris, and Museu de Arte Contemporânea de Serralves, Porto. Ostfildern: Hatje
Cantz Verlag, 2013, 173.
35. Esmail Nashif, “The Palestinian’s Death,” 156 and 173.
36. Gordon, Israel’s Occupation, 94.
37. Edward Said, “The Palestinian Experience,” in The Edward Said Reader, ed.
Moustafa Bayoumi and Andrew Rubin (London: Granta, 2001), 16.
38. Fayez Sayegh, “Remarks on the Security Council Resolution 242,” 7
(authors’ translation).
39. Said, “The Palestinian Experience,” 32.
40. The Arab League initiated the creation of the PLO in 1964. In early 1969,
militant factions assumed control of the PLO turning it into the principle arena
of Palestinian politics. On the history of the PLO and armed struggle see Yezid
Sayigh, Armed Struggle and the Search for State: The Palestinian National Movement,
1949–1993 (Oxford: Clarendon Press, 1997). For a critical account of the place of
armed struggle in the reconstitution of Palestinian national identity, see Rashid
Khalidi, Palestinian Identity: The Construction of Modern National Consciousness (New
York: Columbia University Press, 1997).
41. Esmail Nashif, “The Palestinian’s Death,” 178.
42. Helen Kinsella, The Image Before the Weapon (Ithaca: Cornell University
Press, 2011), 148.
43. Edward Said, Out of Place: A Memoir (New York: Vintage Books, 2000), 290.
47. The assassinated Palestinian militant novelist Ghassan Kanafani, in his two
much-read novellas Rijal fil-Shams (Men in the Sun), 1963, and ‘Aid ila Haifa (Return
to Haifa), 1969, expressed the growing Palestinian understanding that existence is a
product of human actions and political choices. For a wider discussion of the politi-
cal and intellectual questions of existence and essence among Arab and Palestinian
intellectuals, see Yoav Di-Capua, No Exit: Arab Existentialism, Jean-Paul Sartre, and
Decolonization (Chicago: University of Chicago Press, 2018).
48. Edward Said, “The Palestinian Experience,” 21.
Movement, 1949–1993 (Oxford: Clarendon Press, 1997), 668.
50. Khalil al-Wazir, a cofounder of Fatah, was assassinated by the Israeli special
reconnaissance unit Sayeret Matkal in Tunisia in 1988. See Yezid Sayigh, Armed
Struggle and the Search for State: The Palestinian National Movement, 1949–1993
(Oxford: Clarendon Press). The assassination of al-Wazir is described in some
detail in Ronen Bergman, Rise and Kill First: A Secret History of Israel’s Targeted Assas-
sinations (New York: Random House, 2018), 317–22.
51. 1969 issue of Hisad al-Asifa cited in Paul Thomas Chamberlin, The Global
Offensive: The United States, the Palestine Liberation Organization, and the Making of
the Post-Cold War Order (New York: Oxford University Press, 2012), 23.
52. Cited in Di-Capua, No Exit, 192.
53. Mustafa Abu Ali, Laysa Lahum Wujud (They Do Not Exist), Palestinian Cin-
ema Institution, 1974. https://www.youtube.com/watch?v=2WZ_7Z6vbsg
54. Di-Capua, No Exit, 179.
56. Robert Malley, The Call from Algeria: Third Worldism, Revolution, and the Turn
to Islam (Berkeley: University of California Press, 1996), 8.
58. Giáp, “The South Vietnamese People Will Win,” in Giáp, The Military Art
of People’s War: Selected Writings of Võ Nguyên Giáp, 214.
61. “Rare Photos: When Moshe Dayan toured Vietnam and called out US arro-
gance,” Haaretz.com, February 14, 2017, https://www.haaretz.com/israel-news
/MAGAZINE-photos-when-moshe-dayan-toured-vietnam-called-out-u-s-arroga
nce-1.5433374
63. Keith Suter, An International Law of Guerrilla Warfare: The Global Politics of
Law-Making (New York: St. Martin’s Press, 1984), 24.
64. The Palestine National Liberation Movement Fateh, Political and Armed
Struggle, undated (circa 1970), 5. A copy with the authors.
65. Elaine Mokhtefi, Algiers, Third World Capital: Freedom Fighters, Revolutionar-
ies, Black Panthers (London: Verso Books, 2018).
66. A copy of the communique is reproduced in Khalil al-Wazir, Sarkht Filas-
tinnana “Fateh Movement: The Beginnings,” Majallat al-Dirasat al-Filastiniyya, no.
104 (Autumn 2105), 121 (authors’ translation).
67. A reproduction of Shafik al Hout, “History and Future of a Right,” Tri-
continental Magazine 24 (May–June 1971), in Arab Palestinian Resistance (Palestine
Liberation Army-People’s Liberation Forces), vol. 3, no. 12, 60. See https://www
.freedomarchives.org/Documents/Finder/DOC12_scans/12.arab.palestinian.resist
ance.Dec-1971.pdf
68. Al-Hout, “History and Future of a Right.”
69. Al-Hout, “History and Future of a Right.”
70. Suter, An International Law of Guerrilla Warfare, 24.
71. “Treaties, States Parties, and Commentaries—Tehran Resolution on Human
Rights in Armed Conflict, 1968—Resolution-,” accessed March 18, 2020, https://
ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&docu
mentId=378384ED19F0CFEAC12563CD0051D2B4
72. Nayef Hawatmeh in a transcript of the special forum “Palestinian Resis-
tance: New Challenges,” Shu’un Filastiniyya, no. 30 (February 1974), 14 (authors’
translation). Maktabah al-Mu’assasat al-Dirasat al-Filastiniyyah [Library of the Insti-
tute of Palestine Studies (IPS)], Beirut.
73. “Political Program for the Present Stage Drawn Up by the 12th PNC,
Cairo, June 9, 1974,” Journal of Palestine Studies 3, no. 4 (Summer 1974): 224.
74. Yezid Sayigh, “Armed Struggle and State Formation,” Journal of Palestine
Studies 26, no. 4 (Summer 1997): 27.
76. Interview with Mohammed Abu Mayzar (2011), trans., The Palestinian Revo-
lution, http://learnpalestine.politics.ox.ac.uk/uploads/sources/58e777d335f04.pdf
77. Matthew Connelly, A Diplomatic Revolution: Algeria’s Fight for Independence
and the Origins of the Post-Cold War Era (Oxford: Oxford University Press, 2002).
78. On the diplomatic role of Mohammad Yazid, see Connelly, A Diplomatic
Revolution; and Elaine Mokhtefi, Algiers, Third World Capital: Freedom Fighters, Revo-
lutionaries, Black Panthers (London: Verso Books, 2018).
79. Umut Özsu, “Determining New Selves: Mohammed Bedjaoui on Algeria,
Western Sahara, and Post-Classical International Law,” in The Battle for Interna-
tional Law: South-North Perspectives on the Decolonization Era, ed. Jochen von Ber-
nstorff and Philipp Dann, The History and Theory of International Law Series
(Oxford: Oxford University Press, 2019), 342.
80. Mohammed Bedjaoui, Law and the Algerian Revolution (Brussels: Interna-
tional Association of Democratic Lawyers, 1961), 218.
81. Jennifer Johnson, The Battle for Algeria: Sovereignty, Health Care, and Human-
itarianism (Philadelphia: University of Pennsylvania Press, 2016).
82. Cited in Johnson, The Battle for Algeria, 107–8.
83. Kinsella, The Image Before the Weapon, 131.
84. Jabhat al-Taḥrīr al-Qawmī, White Paper on the Application of the Geneva Con-
ventions of 1949 to the French-Algerian Conflict (Algerian Office, 1960).
85. Kinsella, The Image Before the Weapon, 131.
86. Cited in David E. Graham, “The 1974 Diplomatic Conference on the Law
of War: A Victory for Political Causes and a Return to the Just War Concept of the
Eleventh Century,” Washington and Lee Law Review 32 (1975): 43.
87. Yasser Arafat, “Question of Palestine, A/PV.2282 and Corr.1 of 13 Novem-
ber 1974,” 1974, https://unispal.un.org/DPA/DPR/unispal.nsf/0/A238EC7A3E13
EED18525624A007697EC
88. Cited in Erakat, Justice for Some, 109.
89. Armali in International Committee of the Red Cross, “Official Records of
the Diplomatic Conference on the Reaffirmation and Development of Interna-
tional Humanitarian Law Applicable in Armed Conflicts,” vol. VII, 257.
90. International Committee of the Red Cross, vol. V, 204.
91. Cited in Erakat, Justice for Some, 110.
93. Chawki Armaly, “Harakat al-Taḥrīr al-Waṭanī Tafrid Wjwdha Fy Mu’tamar
al-Huqooq al-Insaniah” (“National Liberation Movements Make Their Presence
felt at the Humanitarian Law Conference”), Filastin al-Thawra, no. 88 (Palestine
Liberation Organisation, April 1974), 17 (authors’ translation). Maktabah al-
Mu’assasat al-Dirasat al-Filastiniyyah [Library of the Institute of Palestine Studies
(IPS)], Beirut.
94. Armaly, “National Liberation Movements.”
95. International Committee of the Red Cross, “Official Records of the Dip-
lomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts,” vol. XIV, 464.
97. International Committee of the Red Cross, vol. XIV, 466. On the civilian as
a passive figure, see Alexander, “International Humanitarian Law, Postcolonialism
and the 1977 ‘Geneva Protocol I.’”
98. Georges Abi-Saab, “Wars of National Liberation in the Geneva Conven-
tions and Protocols,” Collected Courses of the Hague Academy of International Law 165
(1979): 417.
99. Abi-Saab, “Wars of National Liberation in the Geneva Conventions and
Protocols,” 426.
100. Abi-Saab, “Wars of National Liberation in the Geneva Conventions and
Protocols,” 427.
Humanitarian Law Applicable in Armed Conflicts,” vol. VI, 145.
102. Abada, International Committee of the Red Cross, vol. VI, 127.
105. Alexander, “International Humanitarian Law, Postcolonialism and the 1977

‘Geneva Protocol I,’” 13.
106. Alexander, “International Humanitarian Law, Postcolonialism and the 1977
‘Geneva Protocol I,’” 13. This was, as Neve Gordon and Nicola Perugini put it, the
high point of the recognition of “civilian value.” Gordon and Perugini provide an
incisive account of the process by which the people’s war came to be seen through
the lens of “the human shield,” thereby depoliticizing and criminalizing this politi-
cal strategy. Neve Gordon and Nicola Perugini, Human Shields: A History of People
in the Line of Fire (Oakland: University of California Press, 2020), 79
107. Ruth Lapidoth, International Committee of the Red Cross, “Official
108. Eqbal Ahmad, The Selected Writing of Eqbal Ahmad, ed. Carollee Bengelsdorf,
Margaret Cerullo, and Yogesh Chandrani (New York: Colombia University Press,
2006), 378.
Humanitarian Law Applicable in Armed Conflicts,” vol. VI, 122.
110. Ilan Pappé, The Ethnic Cleansing of Palestine (Oxford: Oneworld, 2006).
111. Cited in Markus Gunneflo, Targeted Killing: A Legal and Political History
(New York: Cambridge University Press, 2016), 55.
112. Cited in Gunneflo, Targeted Killing, 66. Drawing on the work of Walter
Benjamin, Gunneflo provides an excellent account of the relation between the
law-founding violence of the Nakba and the law-preserving violence that enforces
Israel’s occupation of the West Bank and Gaza.
113. Bayan Nuwayhed Al Hout, Sabra and Shatila: September 1982 (London: Pluto
Press, 2004), https://trove.nla.gov.au/work/8660264?; Seth Anziska, Preventing Pal-
estine: A Political History from Camp David to Oslo (Princeton: Princeton University
Press, 2018), 219.
114. Ben Norton, “Netanyahu Appoints Ayelet Shaked—Who Called for Geno-
cide of Palestinians— as Justice Minister in New Government,” Mondoweiss,
accessed April 3, 2020, https://mondoweiss.net/2015/05/netanyahu-palestinians
-government/
115. Ishaan Tharoor, “Israel’s New Justice Minister Considers All Palestinians to
Be ‘the Enemy,’” Washington Post, accessed April 3, 2020, https://www.washington
post.com/news/worldviews/wp/2015/05/07/israels-new-justice-minister-considers
-all-palestinians-to-be-the-enemy/
SEVEN
“The Third World Is a Problem”

Arguments about the Laws of War
in the United States after the Fall of Saigon
Victor Kattan
Following the fall of Saigon in 1975, debates on the laws of war among
lawyers serving in the US government shared a common theme: the Third
World,1 which had mostly supported North Vietnam throughout that war,
and which had sought to introduce the Soviet doctrine of national libera-
tion wars into the corpus of international law,2 was a problem. Prominent
lawyers in the Carter and Reagan administrations did not like the look and
orientation of the United Nations after decolonization, because in their
view it had become anti-American and pro-Soviet. Accordingly, the United
States refused to ratify the 1977 Additional Protocols to the 1949 Geneva
Conventions (API), which is one of the core instruments on the regula-
tion of armed conflict in international law.3 Moving away from the UN
Charter’s provisions on the use of force and from lawmaking in multilateral
fora, the United States began to advance new rules for employing force in
conversations with smaller subgroups of “like-minded states.”
In 1985, US Secretary of State George Shultz went so far as to call the
UN Charter a “suicide pact.”4 The political discourse on the use of force
by Reagan administration officials shifted markedly.5 It was now argued
that international law had to be reformed if it was to remain credible. How
did this shift, in which the UN Charter was no longer viewed as fit for
173
purpose occur? And why did the United States and Israel withdraw their
optional clause declarations with the International Court of Justice (ICJ)
within weeks of each other in 1985, and refuse to ratify AP1, following the
ICJ’s decision in the first phase of the Nicaragua case?
While most international lawyers tend to produce doctrinal studies that
focus on the rules between states, in order to answer these questions it is
necessary to look at the diplomatic battles waged within states and the indi-
viduals and groups that attempt to influence the foreign policy of a state
to obtain a more realistic appreciation of the practice of international law.
Accordingly, this chapter explores the ideological connections between the
neoconservatives and Vietnam War veterans who opposed the development
of International Humanitarian Law (IHL) during the Cold War due to the
emergence of a Third World bloc in the UN during decolonization that
supported the struggles of the national liberation movements in the Middle
East and Southeast Asia. These included neoconservatives like Allan Gerson,
Abraham Sofaer, Jeane Kirkpatrick, George Shultz, Frederick Iklé, Eugene
Rostow, and Douglas Feith, and Vietnam War veterans like Robert McFar-
lane, John Poindexter, Oliver North, John W. Vessey, and W. Hays Parks.6
All these individuals held prominent positions in the Reagan administration
at the UN, the Department of State, the Department of Defense, including
the Joint Chiefs of Staff, and at the National Security Council, where they
helped formulate US foreign policy on countering terrorism.
In 1977, the only state that voted against Article 1 of AP1 was Israel,
because it claimed that the provision broadened the scope of IHL to include
“armed conflicts in which peoples are fighting against colonial domination
and alien occupation and against racist régimes in the exercise of their right
of self-determination.”7 At that time, the United States was one of more
than 40 states that signed AP1 when it was opened for signature in Decem-
ber 1977. George H. Aldrich, the chairman of the US delegation, had even
described their adoption by the Diplomatic Conference as representing “a
major advance in international humanitarian law.”8
Yet a decade later, the United States would espouse the Israeli view and
oppose ratifying AP1. This chapter explores the reasons behind this shift,
which it attributes to a convergence of interests between the neoconserva-
tives, who had a close relationship to right-wing figures in the Israeli gov-
ernment,9 and Vietnam War veterans who wanted to overcome the “Viet-
nam syndrome,” which President Richard Nixon argued had “weakened
the nation’s capacity to meet its responsibilities to the world, not only mili-
tarily, but also in terms of its ability to lead.”10 It explains that following the
fall of Saigon, much of the UN’s activity took on an anti-American tone,
and the Carter administration, rather than confront this activity, appeared
“The Third World Is a Problem” 175
to acquiesce to it. In addition, the Soviet Union questioned Washington’s

resolve by sending troops into Afghanistan and supporting communist
insurgencies in Africa and Latin America. For neoconservatives and Viet-
nam War veterans, it looked like the Carter administration had lost the will
to fight the Cold War.
Carter’s perceived support for Third World causes at the UN would be
sharply reversed by Reagan administration officials, who strongly rejected
the idea that American power was dangerous to the world.11 In their view,
the Carter administration had allowed the Diplomatic Conference on
the Reaffirmation and Development of International Humanitarian Law
Applicable in Armed Conflict at Geneva (1974–77) to legitimize the Soviet
doctrine of national liberation, giving succor to many of the national lib-
eration struggles that were undermining the United States’ allies in the
Third Word.12 One of the casualties of this struggle between Carter and
Reagan administration officials was the decision by Reagan not to ratify
AP1. Another casualty was the decision to withdraw the United States’
optional clause declaration with the ICJ.
In this connection, the fallout from Nicaragua v United States of America
played a major role in the reversal of US policy.13 This was because the
decision was made on the basis of customary international law, which had
been shaped by events in the 1970s, which had recognized the legitimacy of
national liberation movements and their struggles at the Diplomatic Con-
ference in Geneva. In rejecting the United States’ collective self-defense
argument the Court had based its reasoning on UN resolutions, declara-
tions, and treaties that had been adopted during the height of decoloniza-
tion, and which recognized the right of peoples to fight “against colonial
domination and alien occupation and against racist régimes in the exercise
of their right of self-determination.”
In summary, this chapter revisits the critiques of IHL in the years 1977–
1987, which, it is argued, influenced the Reagan administration’s decision
to withdraw from the ICJ and refrain from sending AP1 to the Senate for
advice and consent to ratification. It explains that officials in the Reagan
administration viewed certain provisions of AP1 as too constraining on US
power in the global confrontation with the Soviet Union, and too accom-
modating to the interests of the national liberation movements that were
supported by the Soviet Union in undermining US interests in the Third
World. These lawyers rejected the changing structure of international law
brought about by the decolonization process, and they rejected the inviola-
bility of the sovereignty of the postcolonial state. To win the Cold War, the
United States wanted to go on the offensive, and in order to accomplish
this objective international law needed to be interpreted flexibly.
1. Ambassador Aldrich Takes on His Critics
In 1991, after the Cold War had drawn to a close with the dissolution of the
Soviet Union, Ambassador Aldrich, who had led the US delegation to the
Diplomatic Conference on the Reaffirmation and Development of IHL in
Geneva, penned two articles expressing his frustration at the United States’
continued refusal to ratify AP1, especially as the Soviet Union had done
so. The first article was published in the American Journal of International
Law14 and the other article was published in a festschrift in honor of Frits
Kalshoven.15 These articles drew upon similar arguments that Aldrich had
advanced in the 1980s when he defended the Carter and Ford administra-
tions’ records at the Geneva Conference on Humanitarian Law.16
Due to the untimely deaths of his colleagues, professor (later judge)
Richard R. Baxter and Waldemar Solf, who had both served in the US Army
during the Second World War, and in Solf’s case also in the Korean War,
Aldrich had, by default, become one of the last lawyers who was still living
after the dissolution of the Soviet Union who had been involved in the
drafting of the Additional Protocols at the Geneva Conference. Although
Aldrich was not alone in voicing criticism of the Reagan administration’s
stance toward AP1,17 he was one of the most prominent, persistent, and
prolific. It was not so much a question of taking sides, as Aldrich had also
represented the United States for the Ford (Republican) administration
before Carter and had been a senior advisor to the Nixon administration
during the Vietnam War.
1.1. Ratification of AP1 Delayed
In the festschrift, Aldrich explained that when the United States signed the
Protocols in 1977, the Carter administration supported the decision as a
whole including the Office of the Secretary of Defense and the Joint Chiefs
of Staff.18 Upon signature, the United States even submitted a statement
expressing its understanding of certain provisions of AP1, which Aldrich
hoped would form the basis for the statement the United States would
make when it came to ratifying the Protocol, which he thought would only
be a matter of time.19 The delay, Aldrich explained to the annual meeting
of the American Society of International Law in April 1980, was because
the executive had not yet finished its preparatory work, which involved an
article-by-article analysis, and because he had become preoccupied with
work on the law of the sea.20 Aldrich expressed his hope that “the next
Congress would have more time to devote to treaty matters than had the
past several Congresses, which had been preoccupied with a few major
treaty issues.”21
In September 1982, despite opposition from Hays Parks in the Penta-
gon, who had served as a marine in Vietnam,22 the J-5 to the Joint Chiefs of
Staff for the Secretary of Defense completed their initial review of AP1 and
APII.23 The review was completed without prejudice to a final assessment
of the Joint Chiefs, which provided language that could be used in the
form of declarations, reservations, and statements of understanding upon
ratification— precisely as Aldrich had envisaged. Frederick Iklé, under
secretary of defense for policy, had requested the review.24 (NATO had
also completed a review of the Protocols and concluded that they would
have no adverse impact on alliance operations.)25 The initial review by the
Joint Chiefs observed that while some states, such as France and Israel,
had indicated that they would not accept the protocols, other US allies had
indicated that they would accept them with reservations and statements of
understanding.26 The review also observed that Norway had accepted the
protocols without any reservations or statements of understanding.27
However, when in October 1984 Mike Matheson, the State Depart-
ment’s deputy legal adviser for political-military affairs, was preparing a
cable to instruct the US mission to the UN to vote in favor of a UN reso-
lution by which the United States would express its intention to ratify AP1
in the sixth committee of the UN General Assembly, alarm bells started
ringing.28 Douglas Feith, deputy assistant secretary of defense for negotia-
tions policy, called Allan Gerson, acting legal counsel at the US mission to
the UN, on the telephone to warn him what was happening, and to oppose
the vote in the sixth committee. In addition, Fred Iklé sent a cable to Ger-
son, explaining that the Pentagon was still considering its position and did
not necessarily support ratification of AP1.29 The alarm bells began to ring
even louder when a “top-secret” memorandum favoring US ratification
of the Additional Protocols was submitted to President Reagan by Davis
Robinson, the State Department legal adviser, in November 1984.30
1.2. The Joint Chiefs Oppose Ratification
By May 1985, the Joint Chiefs of Staff had come out against ratification. It
was now argued that the military problems created by the Protocol could
not be remedied except by taking an unusually large number of reserva-
tions and understandings—27 in all.31 It was also claimed that the problems
with AP1 “outweighed any probable military benefit from ratification.”32
The memorandum that made this recommendation was signed by John
W. Vessey, who had been appointed chairman of the Joint Chiefs of Staff
by President Reagan in 1982. Vessey had a distinguished career in the US
military in Vietnam, where he received the Distinguished Service Cross for
heroism during the Battle of Suoi Tre (March 21, 1967).33
A comparison between the preliminary review on September 13, 1982,
and the final review that rejected ratification on May 3, 1985, is reveal-
ing. While the preliminary review had raised concerns about the implica-
tions of ratifying AP1 for the ability of the United States to fight in situ-
ations of guerrilla warfare, it did not reject AP1 outright or take the view
that the Protocol was so problematic that its faults could not be remedied
through issuing reservations and statements of understanding. Nor did the
initial review take exception with the extension of IHL to cover wars of
national liberation. The only concerns expressed in the 1982 review con-
cerned US views on belligerent reprisals, human shields, the status of mer-
cenaries, POW status for guerrilla fighters, strategic bombing of certain
kinds of critical infrastructure through the granting of special protection
against attack to certain facilities even when the objects concerned were
military objectives, and the standards applicable to military commanders
in combat situations—which could be addressed with reservations and
statements of understandings, drafts of which were provided.34 While con-
cern was expressed in the 1982 review that an “unscrupulous adversary”
could invoke some of the language of AP1 to turn every violation of the
laws of war into a war crime—as occurred in Vietnam—this concern was
not enough to support an outright rejection of AP1, and the Joint Chiefs
reserved their view.35 It was only in 1985 that the view was taken that AP1
was so disadvantageous to the United States that no reservation or statement
of understanding could overcome or remedy its intrinsic flaws.
In the 1985 review, it was argued categorically that the Diplomatic
Conference had injected “the political concerns of particular blocs of
states into the administration of the Geneva Conventions.”36 A rebel group
“would gain a degree of international status, prestige, and legitimacy.”37 By
linking the legal rights of individual combatants “to the justice of the cause
for which they fight,” Article 1, paragraph 4, of AP1 created “a very bad
precedent and politicize[d] what should be an objective determination and
reverses several hundred years of practice.”38 “In the Korean and Southeast
Asian conflicts,” the review explained, “Communist governments claimed
that everyone fighting against them was an ‘aggressor,’ and, therefore, a
war criminal not entitled to prisoner of war status of treatment.”39 It was
also asserted that the new standards provided for in Articles 43 and 44
on Armed Forces, Combatants, and POW status favored guerrilla forces.
“There is little military advantage for the United States armed forces in
recognizing improved status for guerrilla fighters.”40 With regard to the
impact of the new rules on the protection of the civilian population in situ-
ations of belligerent occupation, the Joint Chiefs complained that Articles
48–79 of AP1 were framed in such vague and subjective language that they
“would oblige governments to give a broad construction to these rules dur-
ing low-intensity or unpopular conflicts [such as Vietnam], to bring civil-
ians losses to the lowest possible level.”41 The review also raised objections
to the presumption of civilian status for objects that were not considered
a military objective in Article 50 and 52 of AP1, “since it could adversely
impact on American military operations and personnel.”42 It explained that:
“‘War crimes’ accusations have been a principal means used to deny pris-
oner of war status to Americans in both Korea and Southeast Asia; the
existence of a rule that everyone and everything is civilian in case of ‘doubt’
could be used to prove such charges in the future, or at least lend credence
to them for propaganda purposes.”43 Given the many problems with AP1,
the review concluded that “as a practical matter, there is a serious question
whether the United States can, in good faith, ratify the Protocol with the
many reservations and understandings necessary to correct the Protocol’s
numerous ambiguities and defects.”44 Accordingly, the review did not rec-
ommend ratification.
Whereas Hays Parks’s concerns appeared not to have been sufficient to
overturn the 1982 review, by 1985, when Vessey was in charge, and after
Parks had joined forces with neoconservative officials like Iklé, Feith, and
Gerson, who were also opposed to US ratification of AP1 (albeit for their
own reasons), their concerns won the argument, as explained below. It is
also suggested that a spate of high-profile terrorist attacks against US citi-
zens between 1983 and 1985 likely tipped the balance in favor of these
arguments in the administration as ratification could now be portrayed as
being contrary to the government’s policy of countering terrorism.
1.3. President Reagan Refuses to Send AP1 to the Senate
As Aldrich observed, in January 1987, 18 months after the 1985 review

of the Joint Chiefs, President Reagan informed the Senate that he would
not submit AP1 to the Senate for its advice and consent to ratification.45
The reason advanced by Reagan for his refusal to send the Protocol to the
Senate was because of problems that he described as “so fundamental in
character” that they could not be remedied through a reservation or inter-
pretative declaration.46
Reagan echoed the 1985 review when he explained that AP1 gave “spe-
cial status to ‘wars of national liberation,’” which he described as “an ill-
defined concept expressed in vague, subjective, politicized terminology.”47
This, he said, as well as the extension of combatant status to irregular
forces, would “endanger civilians among whom terrorists and other irreg-
ulars attempt to conceal themselves.”48 Reagan explained that he would
have ratified the Protocol if it were “sound,” but, “We cannot allow other
nations of the world, however numerous, to impose upon us and our allies
and friends an unacceptable and thoroughly distasteful price for joining
a convention drawn to advance the laws of war. In fact, we must not, and
need not, give recognition and protection to terrorist groups as a price for
progress in humanitarian law.”49
Instead of ratifying AP1, the Reagan administration explained that the
United States would only consider itself legally bound by the rules con-
tained in the Protocol “to the extent that they reflect customary interna-
tional law, either now or as it may develop in the future.”50
1.4. The View of the State Department Legal Advisor
In explaining the rationale for the decision not to ratify AP1, Abraham
Sofaer, the State Department legal adviser, who had replaced Davis Robin-
son in 1985, advanced reasons that were strikingly similar to those advanced
by Israel at the Diplomatic Conference in 1977.51 These included the claim
that AP1 granted legitimacy to groups like the Palestine Liberation Orga-
nization (PLO) by treating “terrorists as soldiers” by conferring upon them
“POW status,” and by allowing them to make a unilateral declaration under
Article 96(3) of AP1 rendering the Protocol applicable to an international
armed conflict in which a state was engaged in hostilities with a national
liberation movement. In his explanation, Sofaer did not mention that the
US delegation had actually voted in favor of this provision at the Diplo-
matic Conference in 1977.52 In Sofaer’s reading of the diplomatic records
of the Geneva Conference, the Third World states (which he emphasized
numerically dominated the conference), “were not interested in applying
the rules of international armed conflict to ordinary civil wars, but insisted
on applying these rules to civil wars that involved causes they favored—the
so-called wars of national liberation, specifically those being conducted by
the Palestine Liberation Organization and the liberation movements of
southern Africa.”53
A 1986 profile in the Washington Post described Sofaer as “far more of an
activist and key player on policy decisions than any of his recent predeces-
sors. He is one of those rare people in Washington who has become more
important than the post he fills. Sofaer is more controversial at Foggy
Bottom and in the legal community than is usual for a State Department
lawyer.”54 Before he became legal adviser, Sofaer was a federal judge. In
that capacity, he presided over former Israeli defence minister Ariel Sha-
ron’s libel case against Time magazine regarding his role in the Sabra and
Shatila massacres.55 The Post observed that Sofaer was impressed with the
Reagan administration, so much so that he followed the path trod by many
neoconservatives in switching his allegiance to the Republican Party. The
Post thought it necessary to mention that “Sofaer, born in India to a Jewish
family that originated in Iraq, frequently vacations in Jerusalem, where his
wife’s family own an apartment.”56
1.5. Aldrich Responds to the Reagan Administration
In Aldrich’s view, the Reagan administration had, “willfully distorted the

meaning of several articles in order to declare the Protocol unaccept-
able.”57 For it was not the case that API automatically extended combatant
status to irregulars groups, since they had to submit a declaration stating
that they would abide by AP1 and had to assume the same obligations as
High Contracting Parties.58 He thought that it was virtually impossible
for an irregular group to assume these obligations if they did not have
the appropriate institutions in place, such as a functioning legal system
and police force that could enforce the law.59 While there were concerns
regarding some provisions of AP1 from the Pentagon’s perspective, such
as its prohibition of belligerent reprisals and using nuclear weapons that
would damage the environment, Aldrich thought these could be dealt with
by way of issuing interpretive declarations60—and this is precisely what
France and the United Kingdom did when they acceded to AP1.61 Aldrich
argued that “political and ideological considerations were determinative”
in the Reagan administration’s decision.62 AP1 did not provide any solace
or support for terrorists, in his view, and assertions that ratification of the
Protocol by the United States would give aid or enhance the status of any
terrorist group was “errant nonsense.”63
This is strong language coming from a former deputy legal adviser
to the State Department who had advised Henry Kissinger during the
Vietnam peace negotiations. Although Aldrich was acquainted with the
machinations of Washington, he lamented not pressing for ratification
sooner, as he had not anticipated or foreseen that “those in both [the US
State and Defense] Departments who had negotiated and supported the
Protocols would be replaced by skeptics and individuals with a different

political agenda.”64
1.6. Douglas Feith’s Critique Makes the Front Page

of the New York Times
Those skeptics and individuals with a different political agenda included

Reagan administration officials like Douglas Feith, a longstanding sup-
porter of Israel’s settlement policy.65 Feith, after a short period at the
National Security Council in 1980–1981, moved to the Pentagon where
he lobbied against US ratification of AP1, disparaging the protocol as
“a pro-terrorist treaty that calls itself humanitarian law.”66 Significantly,
Feith advanced this view of AP1 when he was deputy assistant secretary of
defense for negotiations policy, before Reagan decided not to recommend
ratification to the Senate. Feith attacked AP1 in the very first issue of The
National Interest, an international affairs magazine, which was founded by
Irving Kristol, the “godfather of neoconservatism.”67 The inaugural issue
also featured articles by foreign policy heavyweights Zbigniew Brzezinski,
Peter Rodman, Jeane Kirkpatrick, Richard Perle, Martin Indyk, Michael
Ledeen, and Daniel Pipes.68 Feith’s critique of AP1 received widespread
press coverage appearing on the front page of the New York Times,69 and on
the third page of the Washington Post.70 In his memoir, Feith explained that
he and Sofaer brought Caspar Weinberger, the secretary of defense, and
George Shultz, the secretary of state, to agreement on not recommending
ratification of AP1 to President Reagan in 1987.71
What Feith did not say is how he and Sofaer were able to persuade
President Reagan to oppose AP1. Like many of the neoconservatives who
rose to prominence in the Reagan administration, Feith and Sofaer were
disturbed by developments at the United Nations in the 1970s when Israel
was compared to apartheid South Africa and when Zionism was described
as a form of racism. These views were also shared by Vietnam War veter-
ans like Hays Parks, who complained that the Diplomatic Conference was
dominated by the Third World and that the PLO was not a national lib-
eration movement but a transnational terrorist organization sponsored by
the Soviet Union that had committed terrorist attacks against the West.72
2. Why the Third World Was Viewed as a Problem
To appreciate why the influence of the Third World in the United Nations
had become a problem in the eyes of the neoconservatives and Vietnam
War veterans, it would be helpful to take a step back at this juncture and
remind ourselves of what happened during the course of the debates at
the Diplomatic Conference on Humanitarian Law at Geneva (1974–77).
The Diplomatic Conference that met to review and modernize the 1949
Geneva Conventions was a motley crew of radical dictatorships, liberal
democracies, communist one-party states, oil-producing Arab sheikhdoms,
and national liberation movements hailing from all parts of Africa, Asia,
and Latin America. That decisions of the conference had to be taken by
consensus made it all the more remarkable that these states and liberation
movements were able to reach agreement, but their anticolonialism and
opposition to the US war in South East Asia united them.73
As former US president Richard Nixon recognized, the Soviet Union
had taken advantage of the international situation after the Second World
War when it “fished assiduously in the troubled waters left in the wake
of the dismantlement of the old colonial empires.”74 This included train-
ing and subsidizing guerrilla forces in the Third World. Communism’s
anti-imperialist message was, he explained, “a clever front for totalitarian
parties, and many genuine nationalists were hoodwinked by this seem-
ingly legitimate patriotic response to European colonialism.”75 This view
would be repeated by General John W. Vessey, chairman of the Joint
Chiefs of Staff, in his February 1984 speech to the House Armed Services
Committee where he complained that the Soviets sought “to gain from
international turmoil. Together with clients and surrogates, the Soviets
are attempting to weaken the ties between the United States and its allies
and to establish their own patterns of influence throughout much of the
Third World.”76
What incensed neoconservatives and Vietnam War veterans was not
only the sympathy that was extended to the communist bloc by well-
meaning, albeit naïve, anti-Vietnam war protestors but also the invitations
extended to the national liberation movements to participate in the Dip-
lomatic Conference, including a proposal to invite the Vietcong, which
had killed thousands of American soldiers; the proposal was only narrowly
defeated by 38 votes to 37, with 33 abstentions.77 From the start of the
debate, the Palestinian and Vietnamese struggles had become entwined
with liberation struggles elsewhere in Africa and Asia, despite acts of ter-
rorism by the Vietcong against thousands of civilians in South Vietnam
during the war,78 and terror attacks by PLO splinter groups like Black Sep-
tember in Munich (1972), Ma’alot (1974), and Entebbe (1976).79 As Hays
Parks complained, “the effort of the ICRC to develop a new law of war
treaty became inextricably intertwined with the Arab war against Israel and
of other conflicts supported by the Third World.”80 The demand that IHL
apply equally to “freedom fighters” as well as to conventional forces was

viewed by these critics as an attempt to confer legitimacy on these armed
groups and to provide an international status for the PLO.81
While Israel and South Africa had legitimate concerns with AP1,82 as the
PLO and Umkhonto we Sizwe, the African National Congress’s paramili-
tary wing, had committed numerous acts of terrorism in Israel and South
Africa in the 1970s and 1980s, it is not clear why the liberation struggles in
Africa and Asia were a specific concern of the Reagan administration, given
that the United States was not engaged in such struggles, although, as we
shall see, it would become embroiled in a very controversial guerrilla war in
central America in the 1980s.83 Indeed, Charles Lysaght, a member of the
Irish delegation to the Diplomatic Conference, commented that most of
the Western delegations “knew that no vital interest of theirs was affected.
With colonial disengagement almost complete, they were unlikely to be
involved in wars of self-determination, as defined, in the future. South
Africa and Israel were the last frontiers.”84
However, for officials in the Reagan administration like Feith who
had strong links with the Likud party,85 Article 85.4(a) of AP1 was of con-
cern, as it had been drafted with a specific case in mind: “the settlement
of Israelis on the Golan Heights and on the West Bank of Jordan.”86 In
Likud’s revisionist ideology, the Palestinians were not a people with a right
of self-determination but part of the wider Arab nation that had exercised
self-determination in some 20 Arab countries. In the view of Israeli prime
minister Menachem Begin, the only genuine national liberation movement
in Palestine had been the Irgun that drove the British out of Palestine fol-
lowing a series of spectacular terrorist actions.87 Begin’s view of the PLO
was made demonstrably clear in Likud’s 1977 election manifesto: “The
so-called Palestinian Liberation Organization is not a national liberation
movement but a murder organization which serves as a political tool and
military arm of the Arab States and as an instrument of Soviet imperialism.
The Likud government will take action to exterminate this organization.”88
Gerson complained that the changes to IHL that had been introduced
at the Diplomatic Conference in Geneva had been brought about as a result
of the efforts of the Arab bloc at the United Nations that had succeeded
in forging an alliance with African states; in exchange for Arab support
against apartheid, the African states supported the struggle against Zion-
ism.89 Writing in the early 1980s, Thomas Franck observed that following
the 1967 war, when Israel occupied more Arab lands, many African and
Asian states analogized the Jews “to the white European settlers of Rhode-
sia and South Africa, denying equal economic, social, and political rights to
the inhabitants of the West Bank and Gaza ‘Bantustans.’”90 Daniel Patrick
Moynihan, the widely respected academic, diplomat, senator, and author,91
who was appointed by President Ford as US ambassador to the United
Nations in 1975, criticized the naivety of those in the US administration
and diplomatic corps like Aldrich who believed they could “moderate” the
policies of the UN majority. He pointed to the General Assembly resolu-
tion describing “zionism [with a small “z”] as a form of racism and racial
discrimination” as emblematic of that body’s anti-Americanism.92 In his
view, the United States would have been better off abandoning its attempt
to reach out to the new nations of Africa and Asia altogether.
For neoconservatives and Vietnam War veterans, the UN had been
transformed into a Third World bloc that espoused a different value system
to the UN’s original founding members and was changing the structure of
international law through majority voting in UN forums. This included
furthering the Soviet doctrine of wars of national liberation with the aim of
overthrowing “colonialist, racist, and alien regimes” as expressed in AP1.93
Not only had the Vietcong almost been invited to attend the Diplomatic
Conference in Geneva, but the head of the PLO Yasser Arafat was given
a standing ovation after a keynote speech to the UN General Assembly,
and his organization had been granted observer status in the UN.94 All the
while, the Soviet Union was imprisoning Jewish dissidents and support-
ing the PLO in international forums against Israel. These developments
prompted Leo Gross to express his fear that the “unbridled majoritarian-
ism” of the UN General Assembly might soon have an impact on the work
of the Security Council where serious decisions could be made.95 This con-
cern was echoed by Prosper Weil who complained about the emergence
of an “international democracy,” in which a majority or a representative
proportion of states from the Third World would be able to “speak in the
name of all and thus be entitled to impose its will on other states.”96
To the veteran Israeli diplomat and lawyer Shabtai Rosenne, the 1970s
“coincided with the radical change in the very texture of the UN, as a
direct result of the decolonization process, and its exploitation by the Arabs
as a forum for anti-Israel activities.”97 From his office on Second Avenue,
Rosenne observed “intensive Arab efforts, since 1968, in the organs dealing
with human rights no less than elsewhere, to create a general association
of ideas between Israel and apartheid and racial discrimination, however
impalpable the association may be, as part of the broader political opera-
tion of winning over African support for the Arab thesis and the isolation
of Israel at the UN.”98 Indeed, an attempt to expel Israel from the organi-
zation preceded the adoption of the infamous “zionism is racism” resolu-
tion.99 This, in turn, followed the adoption by the General Assembly of a

score of resolutions drawing parallels between the struggle against colo-
nialism in Africa and Israel’s oppression of the Palestinians.100
US president Jimmy Carter had also taken a strong stand against Israel’s
settlement policy at the UN and had supported several Security Council
resolutions describing their construction as a “flagrant violation” of inter-
national law.101 These included voting in favor of Security Council resolu-
tion 465 that called on Israel to “dismantle the existing settlements and in
particular to cease, on an urgent basis, the establishment, construction and
planning of settlements.”102 For Moynihan, the Carter administration had
committed a mortal sin by voting for this resolution in the Security Coun-
cil as it had allowed the Security Council “to degenerate to the condition of
the General Assembly.”103 Carter’s decision to veto a draft Tunisian Secu-
rity Council resolution calling for the establishment of an independent
Palestinian state in the West Bank and Gaza a few weeks later104 did not
placate the neoconservatives. He was never forgiven.105
Carter’s perceived support for Third World causes made him very
unpopular not only with neoconservatives but also Vietnam War veterans.
This was because Carter appeared to think that American power was dan-
gerous and needed to be reined in following the Vietnam War—precisely
what the neoconservatives and Vietnam War veterans were opposed to.106
Or, as Moynihan put it, Carter represented “The view that had emerged
during the Vietnam War to the effect that the United States, by virtue of its
enormous power, and in consequence of policies and perhaps even national
characteristics that were anything but virtuous, had become a principal
source of instability and injustice in the world.”107 Following a series of
setbacks in Afghanistan, Angola, and Iran, the Soviet Union—in the eyes of
the neoconservatives and Vietnam War veterans—appeared to be winning
the Cold War. It had to be stopped.
3. “Going Rambo”: Taking the Battle to the Third World
This offensive found expression in the “Reagan Doctrine,” which was

described by Kirkpatrick and Gerson as being opposed to the “traditional
isolationism and post-Vietnam assumptions about the illegitimacy of US
intervention.”108 The doctrine, they claimed, emerged in response to the
Soviet Union’s quest for a global empire and its support for the national
liberation movements in the Third World: “the Reagan administration
articulated, in the wake of the Vietnam War, the moral and legal right to
provide aid to indigenous resistance movements in countries around the

globe, and justified it in terms of traditional American conceptions of legit-
imacy,” they wrote.109 They explained that the doctrine was formulated in
response to the emergence of “Leninist dictatorships” in South Vietnam,
Cambodia, Laos, Mozambique, Angola, Ethiopia, Nicaragua, and Afghani-
stan in the 1970s and 1980s, which the Reagan administration would roll
back by providing anti-Soviet indigenous armed insurgencies with US sup-
port and training.110
Given the Soviet Union’s manipulation, as they saw it, of lawmaking
at the UN, Reagan administration officials often disparaged international
governmental institutions and widely held assumptions about the sover-
eign inviolability of the postcolonial state. Following a spate of terrorist
attacks in Beirut, Rangoon, Kuwait, London, and Rome, Robert McFar-
lane, the assistant to President Reagan for national security affairs and a
veteran of the Vietnam War, expressed “the chilling feeling that the world
[was] somehow at war even though there [were] no formal declarations and
no fixed lines of battle.”111 He explained that the Reagan administration
was “engaged in a new form of low-intensity conflict against an enemy that
[was] hard to find and harder still to fix and destroy in the common military
sense.”112 Given this “chilling feeling” and the belief that the Soviet Union
was behind these attacks, the Reagan administration adopted what Burns
Weston called a “Rambo-style” approach to international affairs (named
after the US action film hero John Rambo, a US Army veteran traumatized
by the Vietnam War, who used the skills he gained there to fight corrupt
police officers, enemy troops, and drug cartels).113 Weston referred to sev-
eral actions taken by the Reagan administration that deserved this dispar-
agement; including the Reagan administration’s decision to withdraw from
UNESCO; the refusal to ratify AP1 and the Law of the Sea Convention;
the mining of the harbor in Nicaragua and the announced refusal to com-
ply with the merits of the Nicaragua case, followed by the reversal of a
39-year foreign policy commitment to the ICJ’s compulsory jurisdiction;
the invasion of Grenada; the “sky jacking” of an Egyptian civilian aircraft
following the Achille Lauro attack and the dispatching of a Delta force to
capture the attackers in Italian territory; the bombing of the Libyan coastal
cities of Benghazi and Tripoli; and so on.114
The bombing of the Libyan coastal cities of Benghazi and Tripoli
represented a paradigm shift. It came on the heels of the Achille Lauro
affair when members of the Palestine Liberation Front, a PLO splinter
group, murdered Leon Klinghoffer, a 69-year-old Jewish American man
in a wheelchair and threw him overboard. This notorious event, which was
made into a film and a musical, inspired Sofaer to write an article for For-
eign Affairs where he complained that the existing laws on counterterror-
ism were not only flawed but “perverse.”115 (The Italian government had
refused to extradite the suspect, Abu Abbas, and let him go, after he and
the hijackers had been intercepted by F-14 Tomcat Fighters in an Egyptian
airplane over the Mediterranean and forced to land at a NATO airbase
in Sicily.) Despite conventions criminalizing acts of terrorism, including
hundreds of extradition treaties between states, the law of self-defense, in
Sofaer’s opinion, was inadequate, because it did not enable armed force to
be used against terrorists in self-defense. The UN Charter was effectively
handicapping the awesome power of the United States to enforce interna-
tional law. Sofaer took specific aim at the PLO and complained that AP1
legitimized terrorism.116 Sofaer’s article was published a few weeks before
Shultz’s speech to the National Defense University on low-intensity war-
fare in January 1986, where he expressed his opinion that when the law
failed, the use of force was necessary to combat terrorism, or else the UN
Charter would become nothing more than “a suicide pact.”117
When Shultz gave this speech, the ICJ was deliberating the merits of a
case that Nicaragua had brought before the Court over the United States’
support for the Contras, a right-wing paramilitary force of Nicaraguan
rebels who were conducting covert actions against the leftist Sandinista
regime in Nicaragua. The case was viewed with apprehension by the US
government as it provided the ICJ with an opportunity to pass judgment
on the laws of war in customary international law that had been trans-
formed as a result of decolonization process that had provoked so much
disquiet amongst neoconservatives and Vietnam War veterans.
4. The Vietnam War, the Arab-Israeli Conflict, and the Nicaragua Case
Central America may appear far removed from the conflicts in Vietnam
and the Middle East, but for neoconservatives and Vietnam War veter-
ans, Nicaragua was a Soviet client aligned to Cuba’s fiercely anti-American
revolutionary leader Fidel Castro and the PLO. There was also a direct
parallel between Israel’s support for the Lebanese Forces (founded by the
anti-communist Kataeb or Phalange party) during the civil war in Lebanon
(1975–90), and US support for the Contras (an anti-communist counter-
revolutionary group made up of ex-guardsmen that had supported the
Somoza dynasty) during the civil war in Nicaragua (1979–90), which were
both justified in collective self-defense. And, of course, the US interven-
tion in the Vietnam War had also been justified in collective self-defense.118
Pillorying the PLO was not difficult to do as it was aligned with United
States’ enemies in Iran, Cuba, Vietnam, and the Soviet Union. In an arti-
cle for Commentary magazine, the veritable “bible” of neoconservatism,119
Kirkpatrick alleged that the PLO had made common cause with the San-
dinistas in Nicaragua.120
The Vietnam and Arab-Israeli conflicts also affected developments in
neighboring El Salvador, where the Salvadoran Communist Party leader,
Jorge Shafik Handal, the son of Palestinian Arab immigrants from Beth-
lehem in what was then part of the British Mandate of Palestine, visited
Moscow and Hanoi in search of arms. Following his visit, Vietnam agreed
to ship 60 tons of weapons left behind by the Americans to Salvadoran
guerrilla fighters.121 Although the Iran-Contra scandal that damaged the
careers of McFarlane, Pointdexter, and Oliver North had not yet become
known, both Israel and the United States were selling weapons to Iran to
fund the Contras in Nicaragua—even though they accused Iran of spon-
soring international terrorism. Israel also provided the US government
with weapons that Israel had confiscated from the PLO in Lebanon to
send to the Contras in Nicaragua.122
The stakes were high in the Nicaragua v United States case because the
ICJ was viewed as an important factor in the court of world public opin-
ion. The Sandinistas were calculating that the United States would not
be able to sustain its support for the Contras if American public opinion
turned against the government as had happened during the latter stages
of the Vietnam War when Congress “pulled the rug” on its contributions
to the war effort following an effective political warfare offensive directed
by Hanoi among antiwar groups in the US media, college campuses, and
church groups.123 The campaign succeeded in turning public opinion
against the war hastening the fall of Saigon that was forever seared in the
collective American consciousness by the image of hundreds of southern
Vietnamese clamoring to board the last US Marine helicopter evacuating
the US embassy.
4.1. The Nicaragua Case: The First Phase
Things started badly for the United States at the ICJ, when the Court
ruled that it had jurisdiction to examine the merits, even though Shultz
had submitted a reservation to the United States’ Optional Clause decla-
ration, which sought to prevent the Court from exercising jurisdiction.124
Despite this reservation, the ICJ decided it had jurisdiction because the
State Department had not observed its own six- month notice period
before attempting to modify its optional clause declaration.125 The deci-
sion blindsided State Department lawyers who thought that their argu-
ments had been airtight.126 The decision was viewed with derision because
it meant the ICJ had to decide the case on the basis of customary interna-
tional law since the US multilateral treaty reservation prevented the Court
from applying the UN Charter and other multilateral treaties.127
As customary international law on the use of force had been shaped by
events in the UN in the previous decade, when the UN had recognized the
legitimacy of national liberation movements and their struggles at the Dip-
lomatic Conference in Geneva, even the ICJ’s staunchest defenders in the
State Department realized that were they to proceed to the merits of the
case, they were likely to lose.128 Reflecting on this moment decades later,
Davis Robinson, the State Department’s legal adviser, described the ICJ’s
decision in the first phase of the Nicaragua case as the “most disillusioning
experience” of his life.129 “The long love affair between the United States
and the Court [had] c[o]me to an end,” mused Gerson, then Kirkpatrick’s
counsel at the UN.130
On October 7, 1985, the United States terminated its optional clause dec-
laration with the ICJ.131 Six weeks later, Benjamin Netanyahu, then Israel’s
ambassador to the United Nations, followed the US lead, in what appeared
to be a carefully calibrated move, by signing Israel’s declaration terminating
its 1956 acceptance of the compulsory jurisdiction of the ICJ.132
In justifying the US government’s decision to terminate its optional
clause declaration, Sofaer complained that a great many of the states that
had emerged from decolonization since 1945 could “not be counted on”
to share US views of the “original constitutional conception of the UN
Charter,” particularly with regard “to the special position of the permanent
members of the Security Council in the maintenance of international peace
and security.”133 Although the government of Israel provided no explana-
tion for the termination of its optional clause declaration, Robbie Sabel,
who was counselor for political affairs in Israel’s embassy to the United
States in the 1980s, later explained that Israel was wary of submitting dis-
putes to the ICJ as the judges of the Court were appointed by the UN
General Assembly that “has an automatic anti-Israeli majority.”134
4.2. The Nicaragua Case: The Second Phase
On June 27, 1986, six months after Shultz had referred to the UN Char-
ter’s provision on the use of force as akin to a “suicide pact,” the ICJ handed
down its decision on the merits of the Nicaragua case. In a lengthy deci-
sion, the Court rejected by 12 votes to three the US government’s central
contention: that its support for the Contras was consistent with its right
of collective self-defense under international law. By 12 votes to three, the
Court also found that the United States had breached its legal obligations
not to interfere in the affairs of another state by training, arming, equip-
ping, financing, and supplying the Contra forces in Nicaragua.135
This decision particularly infuriated Eugene Rostow, the highest-
ranking Democrat in the Reagan administration, who was also the first
chairman of the Committee on the Present Danger and a leading neo-
conservative.136 In addition to his directorship of the Arms Control and
Disarmament Agency in the Reagan administration, Rostow penned many
articles on the Arab-Israeli conflict, always siding with Israel and defending
Likud’s settlement policy in the Occupied Palestinian Territories.137 Like
Feith and other neoconservatives, Rostow had close connections to leading
right-wing figures in Israeli politics.138 Unsurprisingly, given his hawkish
views, which he shared with his brother Walt, who was the first to advise
President Kennedy to deploy US combat troops in South Vietnam,139 Ros-
tow claimed that the ICJ’s decision on the merits in Nicaragua ranked “in
folly with that of the Supreme Court of the United States in Dred Scott v.
Sandford as an act of hubris and an abuse of power.”140
What particularly upset the neoconservatives and Vietnam War veter-
ans in the Reagan administration were the implications of the Nicaragua
judgment for the ability of the United States to legitimately project its mili-
tary power in overseas conflicts in the Third World unless it could demon-
strate that its use of armed force was consistent with interpretations of the
UN Charter and customary international law, which included the views of
Third World states that had joined the UN during decolonization. This
was because in rejecting the United States’ collective self-defense argu-
ment, the Court had based its reasoning on UN resolutions, declarations,
and treaties that had been adopted during the height of decolonization,
which recognized the right of peoples to fight “against colonial domination
and alien occupation and against racist régimes in the exercise of their right
of self-determination” as Article 1 (4) of AP1 expressed it. If the United
States did not have a right of self-defense in Nicaragua (because attacks
on El Salvador and Honduras from the Sandinistas did not reach the level
of an “armed attack” triggering a response in collective self-defense), then
the PLO and other liberation movements could legitimately make similar
arguments to justify attacks on Israel and other US allies that would not
have a right of collective self-defense either. As Gerson observed, the ICJ
stipulated that acts of violence by armed bands must “occur on a signifi-

cant scale before the right of self-defense could properly be invoked.”141
Moreover, the Court excluded from armed attacks, “assistance to rebels in
the form of provision of weapons or logistical or other support.”142 This
led Gerson to complain that a government targeted by another for low-
intensity attack, in the form of supply of weapons or logistical support
for guerrillas seeking to topple its regime, was deprived of any means to
defend itself. It could not go to the UN, as it would be condemned for act-
ing against groups struggling for political freedom. “The victim therefore
became the villain; the state daring to respond to guerrilla attacks became
itself the aggressor.”143
5. Conclusion
Neoconservative and Vietnam War veterans in the Reagan administration—

some of whom were also international lawyers—played a crucial role in
scuttling US ratification of AP1. The reasons why they opposed ratifica-
tion of AP1 varied, but in general it was based on the belief that the Soviet
Union and its friends in the Third World had succeeded in modifying
IHL in a way that was inimical to the policy goals being persuaded by
the Reagan administration in the Third World. Many US officials serv-
ing in the Reagan administration still felt chastened by the Vietnam War.
There was little military advantage for the US armed forces in recogniz-
ing an improved position for guerrilla fighters. Many of the neoconserva-
tives had either studied in Israel or were connected to individuals in the
Likud party, and were on the record as supporters of Israel’s settlement
policy, which was classified in AP1 as a “grave breach” of the 1949 Geneva
Conventions. They also viewed the PLO as “a murder organization which
serves as a political tool and military arm of the Arab States and as an
instrument of Soviet imperialism” to quote from Likud’s 1977 election
manifesto.144 Accordingly, given these strong views, there was much sub-
stance to Aldrich’s claim that ideological and political considerations were
the primary reasons for the failure of the Reagan administration to ratify
AP1 in 1987. This conclusion has been borne out by subsequent events,
with the United States’ closest allies during the Cold War, including many
members of NATO, as well as Australia and New Zealand, having ratified
AP1, albeit with reservations and statements of understanding. The United
States could have done the same, as Aldrich had suggested in 1977, and the
Joint Chiefs had prepared reservations and statements of understanding
in their 1982 review. In 1989, the Soviet Union even ratified AP1 without
a reservation or a statement of understanding even though it is a nuclear
weapon state. The irony is that the United States, by refusing to ratify
AP1, has found itself in the “good company” of states like Turkey, Pakistan,
Myanmar, and most glaringly of all Iran—which is still designated by the
United States as a state sponsor of terrorism.
An enduring legacy of these debates is that they continue to influence
contemporary debates on the law of armed conflict, by redefining tradi-
tional understandings of non-intervention and self-defense, whereby the
United States and Israel continue to espouse a very broad right of self-
defense in top-secret conversations among smaller groups of likeminded
states.145 In their attempts to reinterpret the jus ad bellum in this way, these
states continue to privilege the opinio juris of the most technologically
advanced and powerful of states and ignore the views of the Third World,
even though they represent the largest bloc of states at the UN, thereby
undermining the development of customary international law.146 Sofaer,
for example, continued to espouse a very broad notion of self-defense even
before the attacks on the United States on 9/11.147 After the Clinton admin-
istration (in the midst of the Monica Lewinsky scandal) bombed Afghani-
stan and Sudan in retaliation for attacks on US embassies in Kenya and
Tanzania in 1998 in “Operation Infinite Reach,” (the attacks did not ema-
nate from those countries—the Al-Shifa plant, which produced over half
of Sudan’s pharmaceuticals, did not produce chemical weapons, as alleged,
and bin Laden was not in the camps that were attacked), Sofaer claimed
that “[a]rmed attacks permitting self-defense can occur anywhere, not just
on US territory.”148 This was an argument that legitimized the US prac-
tice of targeted killings globally that became a central feature of America’s
endless wars.149 Sofaer also claimed that the United States, as a permanent
member of the UN Security Council, had the power “to block adoption
of any measure aimed at forcing it to abide by any standard whatever, or
even the enforcement of any decision of the international court that con-
cludes the United States has behaved illegally or attempts to impose any
sanction on the United States concerning its use of force.”150 It had appar-
ently not occurred to lawyers, like Sofaer, that these arguments could be
used by the other permanent members of the UN Security Council. And
this is precisely what happened in February 2022, when Russian president
Vladimir Putin took advantage of American arguments in formulating the
Russian Federation’s rationale for invading Ukraine, by referring to “prec-
edents,” such as NATO’s aerial bombardment of Serbia in 1999 and US
support for regime change in Iraq, Libya, Syria, and so on (states that—
coincidentally—happened to all be close allies of the Soviet Union during

the Cold War, and that maintained close ties to Russia).151
Ultimately, however, it was Aldrich, Matheson, Robinson, and the other
veteran lawyers who served in the State Department and the Pentagon
during the Carter and Reagan administrations who had the last laugh. For
they understood that bringing the United States into compliance with the
provisions of the jus in bello pioneered in the 1970s was more legitimating
for American war than constraining—as Amanda Alexander shows in her
chapter in this volume. So while the neoconservatives won the political
battle in the 1980s, it was the old school liberals long employed in govern-
ment service who understood that the United States could still become
bound by the consensus provisions of API, even without ratifying the pro-
tocols, through the development of customary international law.152
NOTES
An early draft of this chapter was first presented at the Seventh Annual Junior
Faculty Forum for International Law at the University of Melbourne on May 28,
2018. The author would like to thank Anne Orford for her written comments on
his paper, as well as additional feedback provided by Joseph H. H. Weiler, Martti
Koskenniemi, Dino Kritsiotis, Dianne Otto, and Dan Bodansky. A revised draft
was subsequently presented at a workshop organized by the Transsystematic Law
Research Cluster at the Middle East Institute (MEI) at the National University of
Singapore on December 6, 2018, where additional feedback was provided by the
other contributors to this book. The author would especially like to thank Reviewer
A for the anonymous feedback provided to him through the University of Michigan
Press peer review process. Finally, a word of thanks is due to the late Peter Sluglett,
director of MEI, and Charlotte Schriwer, deputy director, who provided funding
for the research he undertook for this chapter in the state of Virginia and Washing-
ton, DC, where he interviewed former Reagan administration officials, and at the
Ronald Reagan Presidential Library in Simi Valley, California, in November 2015
where he reviewed government documents.
1. During the Cold War, references to the “Third World” referred to those
states that became members of the Non-Aligned Movement that were not aligned
with either the capitalist or communist blocs. Many of these states were non-
European societies that had been colonized from the sixteenth century by the
European Empires, and which gradually acquired political independence since the
1940s. See Antony Anghie, Imperialism, Sovereignty and the Making of International
Law (Cambridge: Cambridge University Press, 2004, 2007 ed.), 3.
2. See Edwin Brown Firmage, “The ‘War of National Liberation’ and the
Third World,” in John Norton Moore, ed., Law and Civil War in the Modern World
(Baltimore: Johns Hopkins University Press, 1974), 304–47.
3. The focus of this article is on AP1, rather than APII, because the Reagan
administration did not oppose ratification of APII, although it appears that no deci-
sion was taken in the Senate on ratification of APII because it had become too closely
associated with AP1. See Gary D. Solis, The Law of Armed Conflict: International
Humanitarian Law in War (Cambridge: Cambridge University Press, 2010), 133.
4. George Shultz, Turmoil and Triumph: My Years as Secretary of State (New
York: Charles Scribner’s Sons, 1993), 678.
5. See Richard Falk, “The Decline of Normative Restraint in International
Relations,” Yale Journal of International Law 10 (1984–85): 263–70.
6. These individuals have been identified as neoconservatives either because
they were members of the Committee on the Present Danger or because they have
identified themselves as such in their own writings and in interviews. While many
of the names on the list are uncontroversial, some might baulk at the inclusion of
Shultz. However, see his interview with Daniel Henniner, “George Shultz, Father
of the Bush Doctrine,” Wall Street Journal, April 29, 2006, reprinted on the website
of the Hoover Institution here: https://www.hoover.org/research/george-shultz-fa
ther-bush-doctrine. On how the neoconservatives shaped American politics in the
1970s–2000s, see Peter Steinfels, The Neoconservatives: The Men Who Are Changing
America’s Politics (New York: Simon and Schuster, 1979). Stefan Halper and Jona-
than Clarke, America Alone: The Neoconservatives and the Global Order (Cambridge:
Cambridge University Press, 2004). Gary Dorrien, Imperial Designs: Neoconserva-
tism and the New Pax Americana (New York: Routledge, 2004). Murray Friedman,
The Neoconservative Revolution: Jewish Intellectuals and the Shaping of Public Policy
(Cambridge: Cambridge University Press, 2005). Jacob Heilbrunn, They Knew They
Were Right: The Rise of the Neocons (New York: Doubleday, 2008). Jesús Velasco,
Neoconservatives in US Foreign Policy under Ronald Reagan and George W. Bush: Voices
behind the Throne (Baltimore: Johns Hopkins University Press, 2010). Justin Vaïsse,
Neoconservatism: The Biography of a Movement (Cambridge, MA: Harvard University
Press, 2011). Identifying Vietnam War veterans was much easier as this is a question
of fact. For a book that explores the role of Vietnam War veterans in the Reagan
administration, see Robert Timberg, The Nightingale’s Song (New York: Simon &
Schuster, 1995).
7. See the statement by Hess (Israel) in Official Records of the Diplomatic Confer-
ence on the Reaffirmation and Development of International Humanitarian Law Appli-
cable in Armed Conflicts (1974–1977), vol. VI, at 39–42, paras. 39–64. The records of
the Diplomatic Conference can be accessed at the Library of Congress online at
https://www.loc.gov/rr/frd/Military_Law/RC-dipl-conference-records.html (last
visited February 13, 2020).
8. See the statement by Aldrich (United States), in Official Records of the Diplo-
matic Conference on the Reaffirmation and Development of International Humanitarian
Law Applicable in Armed Conflicts (1974–1977), vol. VI, at 293, para. 76.
9. See, e.g., the acknowledgments in Benjamin Netanyahu, A Durable Peace:
Israel and Its Place Among the Nations (New York: Warner Books, 1993, 2000 reprint),
465 (thanking Douglas Feith for reading the manuscript and suggesting important
revisions). Allan Gerson knew Yoni Netanyahu and his brother Benjamin when he
studied in Israel in the early 1970s, and vacationed with them. Interview with the
author, Washington, DC, November 9, 2015. Gerson died from CJD on December
1, 2019. See Katharine Q. Seelye, “Allan Gerson, Who Sought Justice for Terror
Victims, Dies at 74,” New York Times, December 4, 2019.
10. Richard Nixon, The Real War (New York: Warner Books, 1980), 5.
11. See Jeane J. Kirkpatrick and Allan Gerson, “The Reagan Doctrine, Human
Rights, and International Law,” in L. Henkin et al., Right v Might: International Law
and the Use of Force (Washington, DC: Council on Foreign Relations, 1991, 2nd
ed.), 19–36 at 21.
12. Kirkpatrick and Gerson, 30. Carter’s perceived unwillingness to confront
the Soviet Union in the Third World may be questioned on account of his adminis-
tration’s massive increase in defense spending that preceded the election of Ronald
Reagan in 1980, and his support for the Mujahidin in Afghanistan before Mos-
cow’s invasion, but it was a perception largely shared by neoconservatives. See Greg
Grandin, Empire’s Workshop: Latin America, the United States, and the Rise of the New
Imperialism (New York: Henry Holt & Co. 2010), 66.
13. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports
(1984), at 392. Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Merits, Judgment, ICJ Reports (1986), at 14.
14. George Aldrich, “Prospects for United States Ratification of Additional Pro-
tocol I to the 1949 Geneva Conventions,” American Journal of International Law 85
(1991): 1–20.
15. George Aldrich, “Why the United States of America Should Ratify Addi-
tional Protocol I,” in A. J. M. Delissen and G. J. Tanja, eds., Humanitarian Law of
Armed Conflict: Challenges Ahead (Dordrecht: M. Nijhoff, 1991), 127–44.
16. See George Aldrich, “New Life for the Laws of War,” American Journal of
International Law 75 (1981): 764–83. George Aldrich, “Some Reflections on the
Origins of the 1977 Geneva Protocols,” in Christophe Swinarski, ed., Studies and
Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean
Pictet (The Hague: Martinus Nijhoff and the International Committee of the Red
Cross, Geneva, 1984), 129–37. George Aldrich, “Progressive Development of the
Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol 1,” Virginia Jour-
nal of International Law 26 (1986): 693–720.
17. Other scholars and former officials that voiced criticism of the Reagan
administration’s stance on AP1 included Howard Levie, who held the Stockton
Chair at the US Naval War College from 1970–1971, Aldrich’s colleague Walde-
mar A. Solf, and the ICRC’s Hans-Peter Gasser. See Waldemar Solf, “A Response
to Douglas J. Feith’s law in the Service of Terror—The Strange Case of Additional
Protocol,” Akron Law Review 20 (1986): 261–89. Hans-Peter Gasser, “An Appeal for
Ratification by the United States,” American Journal of International Law 81 (1987):
912–25. Howard Levie, “The 1977 Protocol 1 and the United States,” Saint Louis
University Law Journal 38 (1993): 469–84. See also, Theodor Meron, “The Time
Has Come for the United States to Ratify Geneva Protocol 1,” American Journal of
International Law 88, no. 4 (1994): 678–86.
18. Aldrich, “Why the United States of America should Ratify Additional Pro-
tocol I,” 128.
tocol I,” 143–44.
20. See American Society of International Law Proceedings 74 (April 17–19, 1980):
208.
21. American Society of International Law Proceedings 74 (April 17–19, 1980): 208.
22. W. Hays Parks entered federal service as a commissioned officer in the

Marine Corps. His initial service was as a reconnaissance officer. He served in
the Republic of Vietnam (1968–1969) as an infantry officer and senior prosecut-
ing attorney for the First Marine Division. His subsequent service included first
Marine Corps Representative at the Judge Advocate General’s School, US Army;
congressional liaison officer for the Secretary of the Navy; and Chief, Law of War
Branch, Office of the Judge Advocate General of the Navy. See W. Hays Parks, “Air
War and the Law of War,” Air Force Law Review 32 (1990): 1 at 63–111.
23. See Report by the J-5 to the Joint Chiefs of Staff on JCS Review of the 1977
Protocols Additional to the 1949 Geneva Conventions. Reference: |Z, Septem-
ber 13, 1982 (declassified September 30, 2013). This 45-page report produced for
Fred Iklé, under secretary of defense for policy, consists of a memorandum and two
annexes with suggested draft language for possible reservations and interpretative
declarations in the event President Reagan agreed to send the Protocols to the
Senate for advice and consent to ratification. It was signed by James E. Dalton,
lieutenant general, USAF, director, Joint Staff. It would appear the Joint Chiefs of
Staff, while reserving their final opinion, did not oppose ratification. Their primary
concern was to avoid a situation that could lead to differing operational procedures
that could adversely affect combined forces operations. They also wanted to con-
sult with allies. The report can be downloaded from the special collections link at
the Executive Services Directorate, available at http://www.esd.whs.mil/FOIA/Rea
ding-Room/Reading-Room-List/Special_Collections/
24. Report by the J-5 to the Joint Chiefs of Staff on JCS Review of the 1977
Protocols Additional to the 1949 Geneva Conventions. Reference: |Z, September
13, 1982.
25. See Parks, “Air War and the Law of War,” at 89, footnote 283 (criticizing the
[undated] NATO review).
Protocols Additional to the 1949 Geneva Conventions (September 13, 1982),
Appendix A, para. 4.
Appendix A, para. 4.
28. See Allan Gerson, The Kirkpatrick Mission: Diplomacy without Apology, America
at the United Nations 1981–1985 (New York: The Free Press, 1991), 250–52.
29. The cable dated October 16, 1984, is reproduced in Gerson, 252. One of the
reasons why the Pentagon opposed ratification was because it did away with “the
distinction between combatants and non-combatants, [and] it would be hard to
square ratification of the protocols with our policy of combatting terrorism.”
30. The “top-secret” memo was subsequently leaked to the New York Times
where it was disparaged. See W. Safire, “Rights for Terrorists? A 1977 Treaty would
Grant Them,” New York Times, November 15, 1984, A31. (Criticizing Robinson for
producing a memo calling on the administration to “move towards effective inter-
national humanitarian protection, consistent with Western military interests.”)
31. Memorandum for the Secretary of Defense: Review of the 1977 First Addi-
tional Protocol to the Geneva Conventions of 1949. JCSM-152–85 (May 3, 1985),
available on the website of the Executive Services Directorate at https://www.esd
.whs.mil/Portals/54/Documents/FOID/Reading%20Room/Joint_Staff/1985_JC
SM_152-85_Review_of_GC_AP_I.pdf
tional Protocol to the Geneva Conventions of 1949.
33. Vessey also commanded the 3rd Armored Division Artillery from 1967 to
1969, and was the division chief of staff from 1969 to 1970, before being promoted
to brigadier general.
Annex B to Appendix A.
35. Strikingly, this complaint about abuse of the laws of war as “war crimes” for
propaganda purposes during the anti-Vietnam War protests was very similar to the
complaints that appeared in article written by W. Hays Parks a decade later. See W.
Hays Parks, “Exaggerated or One-Sided Claims of Law of War Violations,” in John
Norton Moore, ed., Deception and Deterrence in “Wars of National Liberation,” State-
Sponsored Terrorism and Other Forms of Secret Warfare (Durham: Carolina Academic
Press, 1997), 103–26.
2.
2.
3.
3.
36.
44.
52.
52.
97.
45. Aldrich, “‘Why the United States of America should Ratify Additional Pro-
tocol I,” at 129–30.
46. See the Letter of Transmittal, The White House, January 29, 1987, American
Journal of International Law 81 (1987): 911.
47. American Journal of International Law 81 (1987): 911.

50. See Michael Matheson, “The United States Position on the Relation of
Customary International Law to the 1977 Protocols Additional to the 1949 Geneva
Conventions,” American University Journal of International Law and Policy 2 (1987):
419–36 at 420.
51. See Abraham Sofaer, “The Rationale for the United States Decision,” Amer-
ican Journal of International Law 81 (1987), at 784–87. See also, the statement by
Hess (Israel) in Official Records, Vol. VI, at 39–42. See further, the detailed explana-
tions provided by Lapidoth in Official Records, Vol. VI, at 121–22, paras. 16–19 as
to why Israel could not vote for Article 42 (now Article 44) of AP1. See also, the
statement by Sabel as to why Israel could not vote for Article 84 (now Article 96(3))
in Official Records, Vol. VI, at 352–53, paras. 72–74.
52. See Official Records, Vol. VI, at 353, para. 75.
53. Sofaer, “The Rationale for the United States Decision,” at 785. But see
Levie’s criticisms, “The 1977 Protocol 1 and the United States,” at 475–76.
54. Don Oberdorfer, “Abraham Sofaer: Players State’s Legal Adviser Deals with
Policy, Then the Law,” Washington Post, March 10, 1986, A13.
55. See Linda A. Malone, “Sharon vs. Time: The Criminal Responsibility under
International Law for Civilian Massacres,” Palestine Yearbook of International Law 3
(1986): 41–74.
56. Don Oberdorfer, “Abraham Sofaer: Players State’s Legal Adviser Deals with
Policy, Then the Law,” Washington Post, March 10, 1986, A13.
tocol I,” at 133.
58. According to Solis, no liberation movement made an application under Art.
96(3). See Solis, The Law of Armed Conflict at 128. See also, Meron, “The Time Has
Come for the United States to Ratify Geneva Protocol 1,” at 683.
tocol I,” at 134–37. The United Kingdom submitted the following reservation to
ensure that the Provisional IRA could not make such a declaration: “It is the under-
standing of the United Kingdom that the term ‘armed conflict’ of itself and in its
context denotes a situation of a kind which is not constituted by the commission of
ordinary crimes including acts of terrorism whether concerted or in isolation. The
United Kingdom will not, in relation to any situation in which it is itself involved,
consider itself bound in consequence of any declaration purporting to be made
under paragraph 3 of Article 96 unless the United Kingdom shall have expressly
recognised that it has been made by a body which is genuinely an authority rep-
resenting a people engaged in an armed conflict of the type to which Article 1,
paragraph 4, applies.”
60. Tellingly, with the exception of Israel, the United States’ closest allies (such
as Canada, Australia, and the United Kingdom) submitted reservations and inter-
pretative declarations when they ratified AP1—in some cases using language that
was very similar to the language used by the Joint Chiefs in the J-5 review. For a
useful analysis of these reservations, see Julie Gaudreau, “The Reservations to the
Protocols additional to the Geneva Conventions for the Protection of War Vic-
tims,” International Review of the Red Cross 849 (2003): 143–84.
61. See the declaration submitted by France upon its accession to AP1 on April
11, 2001. See also the declaration made by the United Kingdom on July 2, 2002,
which stated that “It continues to be the understanding of the United Kingdom
that the rules introduced by the Protocol apply exclusively to conventional weap-
ons without prejudice to any other rules of international law applicable to other
types of weapons. In particular, the rules so introduced do not have any effect on
and do not regulate or prohibit the use of nuclear weapons.”
tocol I,” at 133.
tocol I,” at 141.
64. George Aldrich, “Comments on the Geneva Protocols,” 320 International
Review of the Red Cross (IRRC) (October 31, 1997), available at https://www.icrc.org
/eng/resources/documents/article/other/57jnv2.htm (last accessed February 24,
2020) (no page numbers provided).
65. In June 1981, Feith drafted a memorandum for Richard Allen, the national
security adviser, insisting that Israel’s settlements were “legal” despite the views of
the State Department’s legal adviser. See the advice by the legal adviser Herbert
J. Hansell on the illegality of Israeli civilian settlement activity in “United States:
Letter of the State Department Legal Adviser Concerning the Legality of Israeli
Settlements in the Occupied Territories,” International Legal Materials 17 (1978):
777–79. Compare this to Douglas J. Feith, “Notes on Legality of Israel’s West Bank
Settlements,” June 16, 1981. Collection: Executive Secretariat, NSC, Near East
and South Asia [Middle East]. Contents: Israel/Iraq-Israel. Box: 68. Ronald Reagan
Library. Feith continued to argue in favor of the legality of Israel’s settlements into
the 1990s during the negotiations between Israel and the PLO. See Douglas Feith
and Eugene Rostow, Israel’s Legitimacy in Law and History: Proceedings of the Confer-
ence on International Law and the Arab-Israeli Conflict (1993). See also, Douglas Feith,
“A Mandate for Israel,” National Interest 33 (1993): 43–58, at 56.
66. See Douglas Feith, “Protocol 1: Moving Humanitarian Law Backwards,”
Akron Law Review 19 (1985–1986): 531–35, at 534.
67. See Douglas Feith, “Law in the Service of Terror—the Strange Case of
Additional Protocol I,” National Interest 1 (Fall 1985): 36–47.
68. Feith, “Law in the Service of Terror,” 36–47.
69. See Leslie H. Gelb, “War Law Pact Faces Objection of Joint Chiefs: Joint
Chiefs said to Oppose Revisions in War Law,” New York Times, July 22, 1985, A1.
70. M. Weisskopf, “Geneva Convention Changes Questioned: US Fears Cre-
ation of Terrorist Safety Net,” Washington Post, July 23, 1985, A3. Feith also appears
to have influenced the views of administration officials such as Guy Roberts, assis-
tant staff judge advocate and commander-in-chief Pacific Forces, who attended a
conference on terrorism and low intensity warfare at the Fletcher School of Law
and Diplomacy in 1985 and who cited Feith’s article favorably in his work. See Guy
B. Roberts, “The New Rules for Waging War: The Case Against Ratification of
Additional Protocol 1,” Virginia Journal of International Law 26, no. 1 (1985): 109–
70 (citing half a dozen times the then unpublished copy of Feith’s paper “Law in
the Service of Terror” that was presented at the Fourteenth Annual Conference on
Terrorism and Low Intensity Operations at the Fletcher School of Law and Diplo-
macy in April 1985). Feith’s article is also cited by W. Hays Parks, “Air War and the
Law of War,” at 77.
71. See Douglas J. Feith, War and Decision: Inside the Pentagon at the Dawn of the
War on Terrorism (New York: HarperCollins, 2008), at 39–40. See also, Gerson, The
Kirkpatrick Mission, at 246–54.
72. See W. Hays Parks, “Air War and the Law of War,” at 79. See also, W.
Hays Parks, “Perspective and the Importance of History,” Yearbook of International
Humanitarian Law 14 (2011): 361–82 at 363.
73. As Hays Parks complained, a vote by consensus “permitted delegations to
pressure other delegations to accept an article, however imperfect it may have been,
rather than break consensus.” See W. Hays Parks, “Air War and the Law of War,” at
83.
74. R. Nixon, The Real War, 4.
75. R. Nixon, The Real War, 97.
76. Statement before the House Services Committee, February 2, 1984, in
Selected Works of General John W. Vessey, Jr., USA Tenth Chairman of the Joint Chiefs
of Staff 22 June 1982—30 September 1985 (Washington, DC: Joint History Office:
Office of the Chairman of the Joint Chiefs of Staff, 2008), 105.
77. See Official Records of the Diplomatic Conference, Vol. V, at 52–53 (no paragraph
number provided).
78. According to Lewy, the Vietcong assassinated 36,725 persons and abducted
58,499 between 1957– 1972. See Gunther Lewy, America in Vietnam (Oxford:
Oxford University Press, 1987), 272–73 (“80 percent of the terrorist victims were
ordinary civilians and only about 20 percent were government officials, policemen,
members of the self-defense forces or pacification cadres”).
79. On the connections between the PLO and Vietnam, see P. T. Chamberlain,
The Global Offensive: The United States, the Palestine Liberation Organization, and the
Making of the Post-Cold War Order (Oxford: Oxford University Press, 2012), 41–75.
On the influence on popular American culture of Israel’s raid on Entebbe, see Amy
Kaplan, Our American Israel: The Story of an Entangled Alliance (Cambridge, MA:
Harvard University Press, 2018).
80. See W. Hays Parks, “Air War and the Law of War,” at 69.
81. Parks, “Air War and the Law of War,” at 69, note 238.
82. South Africa only acceded to AP1 after the fall of apartheid.
83. See Section 5 below.
84. See Charles Lysaght, “The Attitude of Western Countries,” in Antonio
Cassese, ed., The New Humanitarian Law of Armed Conflict, Vol. I (Napoli: Editoriale
Scientifica, 1970), 349–85 at 354.
85. As explained to me by Nicholas Veliotis who was assistant secretary of state
from January 1981 until the end of 1983 when he was replaced by Richard Murphy.
Interview with author, Metropolitan Club, Washington DC, November 19, 2015.
86. See Michael Bothe et al., eds., New Rules for Victims of Armed Conflicts: Com-
mentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The
Hague: Martinus Nijhoff, 1982), at 518.
87. See Menachem Begin, The Revolt: Story of the Irgun (Steimatzky, 1952, 2007
reprint), 212–30 (describing the attack on the King David Hotel).
88. Quoted in Avi Shlaim, “The Likud in Power: The Histiography of Revision-
ist Zionism,” Israel Studies 1 (1996): 283. For a slightly different rendering of the
Hebrew translation, see Walter Laqueur and Dan Schueftan, eds., The Israel-Arab
Reader: A Documentary History of the Middle East Conflict (London: Penguin, 2016
edition), 207.
89. Interview between Allan Gerson and the author, Washington, DC, Novem-
ber 9, 2015.
90. Thomas M. Franck, Nation Against Nation: What Happened to the UN Dream
and What the US Can Do about It (Oxford: Oxford University Press, 1985), 214.
91. Including, Daniel Patrick Moynihan, On the Law of Nations (Cambridge,
MA: Harvard University Press, 1990).
92. See Moynihan, “Abiotrophy in Turtle Bay: The United Nations in 1975,”
Harvard International Law Journal 17, no. 3 (1976): 465–502. Regarding the UN
debate on “Zionism is racism” resolution, see Franck, Nation Against Nation, 205–9.
93. See Jeane J. Kirkpatrick and Allan Gerson, “The Reagan Doctrine, Human
Rights, and International Law,” in Henkin et al., ed., Right v Might, 19–36 at 32.
94. For Yasser Arafat’s keynote address, see Question of Palestine. UN doc. A/
PV.2282 and Corr.1, November 13, 1974. The PLO was granted observer status in
GA Res 3237, November 22, 1974.
95. See Leo Gross, “Voting in the Security Council and the PLO,” American
Journal of International Law 70, no. 3 (1976): 470–91, at 471.
96. Prosper Weil, “Toward Relative Normativity in International Law?” Ameri-
can Journal of International Law 77 (1983): 413–42, at 420. Daphné Richemond-
Barak, Senior Researcher at the International Institute for Counter-Terrorism at
the Lauder School of Government, Diplomacy and Strategy at the IDC Herzliya,
in Israel, is the granddaughter of Prosper Weil. See W. Michael Reisman, “In
Memoriam: Prosper Weil (1926–2018),” Proceedings of the ASIL Annual Meeting 113
(2019): 401–2.
97. See Shabtai Rosenne, “Israel and the United Nations: Changed Perspec-
tives, 1945–1976,” in Morris Fine and Milton Himmelfarb, eds., American Jewish
Yearbook 1978 (1977): 49.
98. Rosenne, “Israel and the United Nations: Changed Perspectives, 1945–
1976” (emphasis in original).
99. On the decredentialization of South Africa, see GA Resolution 3207, Sep-
tember 30, 1974. On the attempts to expel Israel from the UN in the early 1980s,
see Franck, Nation Against Nation, 216–18.
100. See, e.g., GA Res. A/3070, November 30, 1973.
101. See SC Res 446, March 22, 1979, SC Res 452, July 20, 1979, SC Res 465,
March 1, 1980, SC Res 476, June 30, 1980. SC Res 478, August 20, 1980.
102. See SC Res 465, para 6 (adopted unanimously).
103. D. P. Moynihan, “Joining the Jackals: The US at the UN 1977–1980,” Com-
mentary 72, no. 2 (February 1981), available at https://www.commentarymagazine
.com/articles/joining-the-jackals/ (last accessed February 24, 2020) (no page num-
bers given).
104. See Tunisia: draft resolution UN doc. S/13911, April 28, 1980.
105. The US vote in favor of Resolution 465 was mentioned as one reason (among
others) for Carter’s failure to win reelection, as it affected the New York primary
in which the presidential candidate lost to his Democratic rival Ted Kennedy. See
Jack W. Germond and Jules Witcover, Blue Smoke and Mirrors: How Reagan Won
and Why Carter Lost the Election of 1980 (New York: Viking Press, 1981), at 151–56.
Consider also the backlash caused by the publication of Jimmy Carter, Palestine:
Peace not Apartheid (New York: Simon & Schuster, 2006). Even Carter’s Jewish sup-
porters in the Democratic Party turned against him. See Alan Dershowitz, The Case
Against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of
Peace (Hoboken, NJ: Wiley & Sons, 2008), at 17–48.
106. Dershowitz, The Case Against Israel’s Enemies. See also Norman Podhoretz,
The Present Danger: Do We Have the Will to Reverse the Decline of American Power?
(New York: Simon & Schuster, 1980). Norman Podhoretz, Why We Were in Vietnam
(New York: Simon & Schuster, 1980).
107. Moynihan, “Joining the Jackals” (no page number provided).
108. Kirkpatrick and Gerson, “The Reagan Doctrine, Human Rights, and Inter-
national Law,” in Henkin et al., ed., Right v Might: International Law and the Use of
Force (1991), 19–36 at 21.
109. Kirkpatrick and Gerson, at 24.
110. Kirkpatrick and Gerson, at 23–24.
111. Robert C. McFarlane, “Terrorism and the Future of Free Society,” Studies in
Conflict and Terrorism 8, no. 4 (1986): 315–26 at 315.
112. McFarlane, “Terrorism and the Future of Free Society,” 315–16.
113. Burns H. Weston, “The Reagan Administration Versus International Law,”
Case Western Reserve Journal of International Law 19 (1987): 295–302 at 296.
114. Weston, “The Reagan Administration Versus International Law,” 296–97.
115. Abraham, Sofaer, “Terrorism and the Law,” Foreign Affairs 64 (1986): 901–22
at 902.
116. Sofaer, “Terrorism and the Law,” at 912–15.
117. Shultz, Turmoil and Triumph, at 678.
118. Public Law 88–408, August 10, 1965. See also, US State Department: “The
Legality of United States Participation in the Defense of Viet-Nam,” American
Journal of International Law 60 (1966): 565–85.
119. Norman Podhoretz was the longtime editor-in-chief of Commentary.
120. Jeane J. Kirkpatrick, “US Security & Latin America,” Commentary 71 (Janu-
ary 1, 1981), at 29.
121. See N. Rostow, “Nicaragua and the Law of Self-Defense Revisited,” Yale
Journal of International Law 11 (1986): 437–61, at 443, note 23. Rostow cites a State
Department publication “Revolution beyond our Borders” Sandinista Intervention in
Central America (July 19, 1981), at 5–6. See also, Robert F. Turner, Nicaragua v.
United States: A Look at the Facts (Washington, DC: Institute for Foreign Policy
Analysis, 1987), xii., and 55–59.
122. Amir Oren, “The truth about Israel, Iran and the 1980s US arms deals,”
Ha’aretz, November 26, 2010.
123. Turner, Nicaragua v. United States: A Look at the Facts, xiii, and 40–41.
124. See the reference to the Shultz letter dated April 6, 1984, in Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, 398, para 13.
125. See Judgment on Jurisdiction and Admissibility, 418–21, at paras 59–65.
126. See Gerson, The Kirkpatrick Mission, at 265.
127. See Judgment on Jurisdiction and Admissibility, at 424, para. 73. See also, Judg-
ment on the Merits, at 31–38, paras 42–56. For a neat account of the case see Mary
Ellen O’Connell, “The Nicaragua Case: Preserving World Peace and the World
Court,” in John E. Noyes, Laura A. Dickinson, and Mark W. Janis, eds., Interna-
tional Law Stories (New York: Foundation Press, 2007), 339–70.
128. Gerson, The Kirkpatrick Mission, at 270–71.
129. Michael P. Scharf and Paul R. Williams, eds., Shaping Foreign Policy in Times
of Crisis: The Role of International Law and the State Department Legal Adviser (Cam-
bridge: Cambridge University Press, 2010), at 61.
130. Gerson, The Kirkpatrick Mission, at 271.
131. See United States: Department of State Letter and Statement Concerning
Termination of Acceptance of ICJ Compulsory Jurisdiction, October 7, 1985, 24
International Legal Materials (ILM) (1985), at 1742.
132. See Israel: Statement Concerning Termination of Acceptance of ICJ Com-
pulsory, November 19, 1985, United Nations Treaty Series, C.N.318.1985.TREA-
TIES-4 (signed by Benjamin Netanyahu). On the 1956 declaration, see Robbie
Sabel, International Law and the Arab-Israeli Conflict (Cambridge: Cambridge Uni-
versity Press, 2002), 247–48. Prior to his appointment as Israel’s UN Ambassador,
Netanyahu had served as Israel’s acting Ambassador to the United States in Wash-
ington, DC, a position he held for six months. Meir Rosenne, who replaced Netan-
yahu as Ambassador to the United States, was described by Netanyahu as “an expert
in international law, [who] was among the best of the traditional diplomatic core.”
See Benjamin Netanyahu, Bibi: My Story (New York: Simon & Schuster, 2022), 170.
133. Sofaer, Schachter, and D’Amato, “The United States and the World Court,”
Proceedings of the American Society of International Law (ASILPROC) 80 (1986), at
207.
134. Sabel, International Law and the Arab-Israeli Conflict, 248.
135. See Judgment on the Merits at 146–50, para. 292.
136. Friedman, The Neoconservative Revolution, 142–43. Vaïsse, Neoconservatism,
162–63.
137. See Eugene Rostow, “‘Palestinian self-determination’: Possible Futures for
the Unallocated Territories of the Palestine Mandate,” Yale Studies in World Public
Order 5 (1978–1979): 147–72.
138. Benzion Netanyahu, the father of Benjamin Netanyahu, introduced his son to
Eugene Rostow in 1974. See Netanyahu, Bibi, 106. Feith and Rostow also knew each
other and collaborated on a joint publication defending the legality of Israel’s settle-
ment project. See Feith and Rostow, Israel’s Legitimacy in Law and History (1993).
139. Although Rostow was a champion of civil liberties in the United States when
he was a young man and opposed the internment of Japanese Americans during the
Second World War, he was a hawk when it came to foreign policy, and he was a revi-
sionist when it came to Israel. His brother Walt Rostow, who was deputy national
security adviser to McGeorge Bundy, and who was later appointed national security
adviser by President Johnson, was also a hawk. Walt Rostow’s staunch support for
the Vietnam War attracted such infamy that when he left government in 1969, not
one of America’s elite universities would offer him a job. According to his biog-
rapher David Milne, Walt Rostow “was the most hawkish civilian member of the
Kennedy and Johnson administrations with respect to the unfolding crisis in Viet-
nam. He was the first to advise Kennedy to deploy US combat troops South Viet-
nam, and the first to provide a rationale for the bombing campaign against North
Vietnam that Lyndon Johnson later implemented.” See David Milne, America’s
Rasputin: Walt Rostow and the Vietnam War (New York: Hill and Wang, 2008), 6–7.
Like his brother, Eugene Rostow also championed the American war in Vietnam, a
stance that he did not soften in his later years. When Eugene Rostow “returned to
his beloved Yale after his stint in the Johnson Administration, hushed whispers of
‘War Criminal’ followed Rostow in the halls,” Gerson recalls. “He tried to defuse
student anger through teas in the faculty lounge, but was rarely able to find com-
mon ground with his detractors.” See Gerson, The Kirkpatrick Mission, 48.
140. Eugene V. Rostow, “Disputes involving the inherent right of self-defense,”
in Laurie F. Damrosch, ed., The International Court of Justice at a Crossroads (New
York: Transnational Publishers, 1987), 264–87, at 278. In Dred Scott (1856), the US
Supreme Court’s infamously decided that an African American could never become
a citizen of the US: “The opinion thus entertained and acted upon in England was
naturally impressed upon the colonies they founded on this side of the Atlantic.
And, accordingly, a Negro of the African race was regarded by them as an article of
property, and held, and bought and sold as such, in every one of the thirteen colo-
nies which united in the Declaration of Independence, and afterwards formed the
Constitution of the United States.” See Dred Scott v. John F.A. Sandford in Reports of
Cases Argued and Adjudged in the Supreme Court of the United States, December Term,
1856, ed. Benjamin C. Howard, Vol. XIX (Washington, DC: William Morrison &
Co., 1857), 393 at 407–8.
144. Shlaim, “The Likud in Power,” at 283.
145. See Christine Gray, International Law and the Use of Force (Oxford: Oxford
University Press, 2018), 170–75, 233–37, 248–53. See further Daniel Bethlehem,
“Principles Relevant to the Scope of a State’s Right of Self-Defense Against an
Imminent or Actual Armed Attack by Nonstate Actors,” American Journal of Inter-
national Law 106 (2012): 770–77; and the critique in Victor Kattan, “Furthering
the ‘war on terrorism’ through international law: How the United States and the
United Kingdom resurrected the Bush doctrine on using preventive military force
to combat terrorism,” Journal on the Use of Force and International Law 5, no. 1:
97–144. On the ideological origins of the Bush doctrine, see Victor Kattan, “‘The
Netanyahu Doctrine,’ the National Security Strategy of the United States of Amer-
ica, and the Invasion of Iraq,” in Satvinder Juss, ed., Human Rights and America’s War
on Terror (New York: Routledge, 2019), 1–28.
146. Kattan, “Furthering the ‘war on terrorism.’” See also, the US reaction to
the ICRC’s customary international law study (arguing in favor of privileging the
practice of the United States and its allies) in American Journal of International Law
101 (2007): 639–41. See further, the letter by Bellinger and Haynes in International
Legal Materials 46 (2006): 514–31.
147. Abraham D. Sofaer, “US Acted Legally in Foreign Raids/US Acted Legally
on Terrorists,” Newsday, October 19, 1998, A29.
148. Sofaer, “US Acted Legally in Foreign Raids,” A29.
149. Sofaer remained close to Shultz after he left government service, when he
became a fellow at Stanford University’s Hoover Institution, where Sofaer contin-
ued to articulate a very broad right of self-defense. See, for example, Abraham D.
Sofaer, “On the Necessity of Pre-emption,” European Journal of International Law
14, no. 2 (2003): 209–26. Abraham D. Sofaer, The Best Defense? Legitimacy and Pre-
ventive Force (Stanford: Hoover Institution Press, 2010).
150. Sofaer, “US Acted Legally in Foreign Raids.”
151. See the Address by the President of the Russian Federation, February 24,
2022, at http://en.kremlin.ru/events/president/news/67843
152. Matheson understood the United States could become bound by the provi-
sions of AP1 by way of restating customary international law, which allowed the
United States to accept the main body of substantive provisions of AP1, while
rejecting those provisions the Third World had succeeded in including in the Pro-
tocol during the Diplomatic Conference. See the statement by Matheson in 1987
in “The United States Position on the Relation of Customary International Law.”
EIGHT
Operationalizing International Law

From Vietnam to Gaza
Craig Jones
Israel’s military today goes to great pains to represent its military opera-
tions in Gaza as being scrupulously legal and meticulously moral. It has
put in place an extensive adjudicative apparatus that is prided on precision
legality and live legal advice: soldiers and pilots receive training in the laws
of war; targets are reviewed by specialist military lawyers in the Military
Advocate General Corps; weapons are carefully calibrated to minimize
unnecessary harm; and, “where possible,” civilian casualties are avoided. More
fundamentally, the Israel military also retains an overwhelming power over
the definitions, thresholds, and boundaries between what constitutes the
im/permissible, the un/necessary, and the dis/proportionate in its ongoing
war against Gaza. The legal masters of Israeli warfare in the twenty-first
century tell us that sometimes mass harm is necessary, or that it is not pos-
sible to avoid civilian casualties.1 More law might mean more protection
for those wielding this lethal definitional power, but for Gazans—and for
targeted populations elsewhere—more law often means more exposure
to increasingly sophisticated and putatively “humanitarian” modalities of
later modern war.
In this chapter I suggest that Israel’s approach to targeting law in Gaza
today is indebted to—and has borrowed from—the lessons that the US
military learned in the Vietnam War. The Vietnam War led to the estab-
207
lishment of the US Law of War Program in the 1970s, a program designed

to inculcate law of war principles across the US military. Alongside the
Law of War Program, a parallel yet seldom commented upon develop-
ment took place: the invention and development of a new military-legal
discipline called “operational law.” Operational law, a mix of domestic and
international law, was designed specifically to furnish military commanders
with the tools they required for “mission success.” It was at the same time
a concerted “domestication” of international law that sought to emphasize
US military rights over and above legal responsibilities, and it explicitly
sought to overcome the negativity toward the laws of war that was felt by
US commanders who had fought in Vietnam. The legal restraints of the
past were proactively reimagined, and military lawyers were tasked with
convincing the military that law could be a “force-multiplier.” The first
true test of this aggressive “hands on” approach came when US military
lawyers were drafted to write the rules of engagement and give legal advice
on lethal targeting operations in Panama (1989) and the First Gulf War
(1990–1991), but this chapter focuses instead on the import of operational
law principles into and by the Israel military.
The Israel military has employed military lawyers since the foundation
of the state of Israel in 1948, but it was not until 2000 that they became for-
mally involved in military targeting decisions.2 The outbreak of the Second
Intifada in September 2000 became the pretext for a host of war and war-
like policies toward occupied Palestine, but some of the legal inspiration—
and particularly the use of military lawyers in lethal targeting operations—
came directly from the US playbook. Just months after the Second Intifada
began, Israel announced a policy of assassination (which it renamed “tar-
geted killing”), and while at first the United States thought it a breach of
international law, the events of 9/11 profoundly changed their political and
legal views of the world, and within a year the United States began its own
overt assassination campaign, fist in Yemen and later in Pakistan, Somalia,
and elsewhere.3
These examples show some of the circuits between the United States
and Israel militaries, but most of all they point to a creative, if not entirely
new, reimagining and reinterpretation of international law. Jens David
Ohlin has characterized the US approach as an “assault on international
law,” but I argue first that this is a US and Israeli approach and, second,
that it signals an assault through international law.4 The assault through
international law does not dispense with international law; instead it stra-
tegically employs and deploys its vocabulary and content in order to wage
and win wars. This approach, seen most clearly today in Israel’s wars on
Operationalizing International Law 209
Gaza in 2009, 2012, 2014, 2018–2019, and 2021 has its roots not only in
the 50-year occupation of Gaza and the West Bank but crucially also in the
US experience in Vietnam.
The Ghosts of Vietnam
The US war in Vietnam (1955–1975) continues to matter in places and

times seemingly far removed from the immediate contexts in which it was
fought. One legacy that has only recently received sustained attention
is the way that US invocations of international law during and after the
Vietnam War continue to haunt interpretations of international law and
military practice today.5 This chapter focuses on a particular aspect of Viet-
nam’s long shadow on international law: the invention and development of
operational law and the concomitant employment by the United States and
later Israel of military lawyers in lethal targeting operations.
Legal issues were legion during and after the US war in Vietnam but
two in particular would become important in ushering in an era that, if not
entirely new, would nevertheless place an unprecedented emphasis on the
centrality of law to the conduct of lethal targeting operations. The first
issue was the widespread perception among commanders who served in
Vietnam that US military action, and particularly the major bombing cam-
paigns, were seriously and unfairly restrained by the laws of war and overly
restrictive rules of engagement. The second issue was born out of the My
Lai massacre of 1968 and the realization by the US military in general, and
military lawyers in particular, that flagrantly illegal behavior by US troops
brings with it a heavy moral and military cost—one that would ultimately
turn US and international publics against US actions in South East Asia
and ferment disillusionment among the troops left fighting what would
become understood as an illegal and illegitimate war.6
There were two major aerial bombing campaigns in the Vietnam War,
as well as intermittent bombing operations that were carried out between
them.7 The first campaign was Operation Rolling Thunder (1965–68), and
its main military objective was to interdict the flow of material supplies
and troops from North to South Vietnam by targeting both the source
of the supplies in North Vietnam and the supply routes themselves. In
March 1972 negotiations between the North and South stalled and almost
immediately North Vietnamese forces launched the “Easter Offensive” on
South Vietnam. In an attempt to halt the offensive and get North Vietnam
back to the negotiating table, the United States then launched what would
become the most intensive bombing campaign of the war—Operation

Linebacker (May–October 1972) and Operation Linebacker II (December
18–29, 1972).
Conventional understandings of the two campaigns go something
like this: Rolling Thunder was a gradualist campaign controlled largely
by civilian leaders in Washington with many—and some argue too many—
restrictions on what could be targeted.8 This is contrasted with the “gloves
coming off” in Linebacker, which was executed by military men in Viet-
nam with less interference from civilian leaders in Washington. This nar-
rative, and the distinction between what happened in each of the bombing
campaigns, is instructive because it reveals something important about the
relationship between politics, law, and restraint. Hays Parks, who served
as a Marine infantry officer and military lawyer in Vietnam, and who sub-
sequently became an important commentator on international law issues
concerning the Vietnam War, insists on a categorical separation between
law and politics, and this enables him to make a series of extraordinary
claims about the air wars in Vietnam. For Parks, Rolling Thunder was ham-
pered not by the laws of war but by political restraints imposed by a civilian
leadership lacking military conviction. This led him to conclude that had
the US Air Force been able to conduct the bombing campaign according to
their “rights” under the laws of war, “Rolling Thunder undoubtedly would
have concluded in a manner favourable to the United States and at a sub-
stantially lower cost.”9
Linebacker shared some of the same goals as Rolling Thunder but was
markedly different in its execution.10 The main difference was that, unlike
Rolling Thunder under President Johnson, the military—and especially
the Air Force and Navy—were given day-to-day control by President
Nixon.11 According to Parks, there was a further distinction: Linebacker
was “planned and executed with a conscious consideration of the law of
war.”12 Specifically, he claims that targeting guidance “for the first time
reflected accurate application of the law of war.”13 Linebacker was not
without its restrictions,14 but for Parks those restrictions were appropriate
partly because he saw them originating in the laws of war (rather than from
“politics”) and also because they were not overly restrictive.
The problem, for Parks and for military lawyers once the war was over,
was that the commanders who fought in Vietnam cared very little about
the distinctions between law and politics and came to view restrictions and
the laws of war as one and the same thing. As Parks explains: “Lots of
people came out of Vietnam thinking things were illegal when they were
not.”15 Major General William Moorman, a former judge advocate general,
had similar recollections of this period: “The senior officers on the staff
having grown up in the Vietnam/post-Vietnam era had it so inculcated that
there were these legal restrictions out there that they were subconsciously
constraining their own range of options.”16 Previous poor instruction and
training was partly to blame, according to Parks, who laments how past
schooling in the laws of war “suffered [. . .] a heavy dose of negativism”
where instructors “tended to emphasize that which was prohibited, and
were reluctant to acknowledge that anything was permitted.”17 Military
lawyers were seen as obstructing operations.18 Col. Bridge of the US Air
Force recollected: “[M]any of the initial efforts at training the front line
personnel met with apathy—or worse [. . .] they could not easily accept
being told how to do their jobs by lawyers.”19 I shall return to the solution
that the US military came up with to solve this problem of the perceived
illegitimacy of the laws of war among commanders in the following sec-
tion. Here I want to briefly reflect on the implications of the My Lai Mas-
sacre for the subsequent rise of operational law.
On March 16, 1968, nearly a hundred US soldiers entered the Village
of Son My on the coast of central Vietnam on a search and destroy mis-
sion.20 They faced no enemy forces when entering the village, nor were
they fired at.21 Around four hours later well over 300 civilians lay dead.22
Most of those killed were women and children, and many were raped
before being murdered.23 A little over a mile away another unit killed close
to a hundred civilians in the neighboring hamlet of My Hoi. Those who
partook in the massacres, along with their superiors, subsequently covered
up their crimes.24 It was not until over a year later that what would become
known in Vietnam as the Son My Massacre—and in the United States,
the My Lai Massacre—would come to US and international public atten-
tion.25 Twenty-five years later, two Judge Advocate General Corps majors
reflected on My Lai as “the greatest emblem of American military shame
in the twentieth century.”26 US war crimes in Vietnam were far more fre-
quent than conventional histories have suggested, and as new archives have
become available in recent years it has become apparent that My Lai was
no aberration; in fact, it was part of a pattern of US violence.27
The Army commissioned an investigation led by Lieutenant Gen-
eral William Peers, which was published in 1970. According to the Peers
Report, as it became known, lack of proper training in the laws of war
was one of the many factors that led to the massacre.28 My Lai served as a
wakeup call to the US military and became a lightning rod for the antiwar
movement in the United States. After My Lai the US military could no
longer afford not to provide all of its service members with training in the
laws of war and rules of engagement. Indeed, Stephen Myrow argues that
the significance of the Peers Report is not—as the reports itself implied—
that the My Lai Massacre could have been avoided by giving those who
committed it more training in the law of war “but rather that it served as a
catalyst for a complete review of the U.S. Armed Forces’ commitment to
the law of war.”29
According to Colonel David Graham, the Judge Advocate General’s
Corps began addressing the criticisms of the Peers Report “[a]lmost imme-
diately.” In May 1970, a key Army regulation governing Law of War train-
ing was revised to ensure that soldiers received adequate instruction in the
laws of war. Significantly, the revised regulation required that this instruc-
tion be given by both military lawyers and commanders—preferably with
combat experience, ensuring that training would be grounded in “real
world experience.”30 The most important doctrinal change would come
several years later, in November 1974, when the DOD published a direc-
tive that mandated the establishment of the first Law of War Program of
its kind.31 And so began a renewed institutional reorientation to “learn les-
sons” from the illegalities of the Vietnam War. But the language and praxis
of the program would not become mired in the questionable “pasts” of
that era; instead the law of war for the US military would be proactive and
positive, a way of looking back in order to overcome the past and ensure
victory in the future.
Inventing “Operational Law”
The Law of War Program was not the only institutional change to have
come out of the Vietnam War. Inside the US military a quieter and more
subtle legal-cultural shift began to take place in the late 1970s and 1980s
under what would eventually become known as “operational law,” or
“OPLAW.” Colonel David Graham provided the first widely accepted
definition: “OPLAW is that body of law, both domestic and international,
affecting legal issues associated with the deployment of U.S. forces over-
seas in peacetime and combat environments.”32
To operationalize something is to put it to use. So what “use” did opera-
tional law serve? In the literature operational law is generally conceived of
as a feature of military training and instruction in the laws of war that helps
to improve discipline and compliance.33 But operational law is not sim-
ply or only about enhancing military governance in the sense of narrowly
defined compliance-building, especially where compliance is understood
as limitation. The invention and development of operational law allowed

the US military to domesticate the laws of war in two key senses: it allowed
them to “nationalize” the international laws of war (and therefore advance
claims of ownership to and dominance over the laws of war), and it permit-
ted the US military to “tame” the laws of war, rendering them ever more
pragmatic, practitioner-oriented, and military-friendly.
A key strand of this domestication involved an organized and posi-
tive assertion of US military rights under the laws of war.34 The US bid
to operationalize the laws of war was never a straightforward process of
translation; it involved an active reconstitution of their content. In short,
operational law put the laws of war to work for the US military—not for
the first time, but to a then unprecedented degree. The raison d’être of
operational law is to specify that which cannot be articulated by interna-
tional law, transforming the abstract and general to the specifics of what is
militarily “necessary.” The move from the laws of war to operational law is
not a neutral or purely technical exercise of rescaling but rather represents
an interpretation, transformation, and “worlding” of the laws of war. As I have
argued elsewhere, this worlding is done through a specifically military reg-
ister and is designed to shape and reshape the laws of war in the US image:
Operational law [is] the tip of the international law spear, space far
away from the sites and institutes commonly associated with the
treaty making of international law—the UN, ICC, or the Interna-
tional Committee of the Red Cross—but nonetheless working on
the same project of defining and rewriting the power and purpose of
law in war, albeit from a radically different direction.35
The United States of course has a long history of contributing to and

helping define the laws of war. The Lieber Code of 1863 is an early example
of how domestic US military law became incorporated into and informed
the regulation of hostilities and laws of war treaties.36 But the emergence
of operational law in the 1970s and 1980s placed a burgeoning emphasis on
the laws of war and created the institutional structures to ensure that law
would become—and would remain—a key pillar of US war, and not just US
war. Operational law helped to “fix” some of the governance and percep-
tion problems that emerged in Vietnam by fostering a law of war culture
internally and projecting a culture of compliance externally.
Operational law was not just a new name; it was also a rebranding of
the laws of war. The rationale was affirmative, in direct opposition to main-
stream thinking at the time: “emphasis was placed on the use of the law as a
planning tool that set forth the legal rights of the client (such as the right of
self-defense) as well as his responsibilities.”37 The explicit emphasis on the
right to employ force was natural, Parks insisted, because “[i]n fact, the law
of war permits more than it prohibits”—and teaching and training should
therefore reflect this.38 In inventing operational law, the choice of name
was deliberately to settle on familiar territory for the military commander.
The acronym “OPLAW” further discursively distanced the military from
the laws of war, transforming them into a familiar military language and
an abstract shorthand. Directives from Washington drove “OPLAW”—
Pentagon interpretations of the US military’s legal rights and responsi-
bilities. If this was law from Geneva or The Hague, it was first filtered
through the US-owned and US-dominated space of OPLAW, and thus
imbued with trustworthiness. Operational law was thus an assertion of US
military proprietary over the laws of war. Like the Lieber Code more than
a century earlier, this way of thinking about the laws of war would empha-
size the contiguities between legal regulation and military violence.
By furnishing the military commander with information about the full
range of possible legal options and the zone of permissibility, operational
law and operational lawyers would become “force multipliers.” The lan-
guage of force multiplication vis-à-vis operational law comes from Briga-
dier General Pitzul, a very senior Canadian military lawyer who used the
term in his opening remarks for the United States Air Force Judge Advo-
cate General School’s Operations Law Course in 2001. Making a case for
the future of operational law and celebrating the involvement of military
lawyers in reviewing targets for the NATO aerial campaign in Kosovo
two years earlier, Pitzul assured his audience of trainee US military law-
yers, “[t]he law is a force multiplier for commanders.”39 Other prominent
military figures, including Major General David Petraeus, have since
employed this language, describing military lawyers who served in Iraq
as “true combat multipliers.”40
Perhaps more importantly, operational law defers in no small part to
military principles. As Michael Smith has argued: “Operational legality is
fundamentally shaped by strategic considerations; in other words, the mis-
sion objectives dictate to a substantial degree what is authorized.”41 Corn
and Corn frame the military-operational shaping of law as imperative to
those who use it: “Allowing the law to develop without consideration of
operational reality will undermine its ultimate efficacy because the constitu-
ents who must embrace the law will view it as inconsistent with their opera-
tional instincts.”42 To be effective, operational law must conform in part to
the military “facts on the ground” as well as with the military imaginations
of those fighting the war. To “operationalize law” implies not only that the
law must be simplified for the commander but also that the commander
and his military exigencies have some say in what goes. Operational law,
therefore, is informed by the very military apparatus that it is purportedly
designed to regulate.
Early proponents and practitioners of operational law emphasized the
specifically military orientation of their new practice and placed combat
operations at its center. Colonel Dennis Coupe, former JAG and director
of national security law at the Army War College, went as far as to admit,
“The job of the [operational] lawyer is to get involved with all the opera-
tional stuff, with the targeting—all the stuff involved with breaking things
and killing people.” Coupe also clarifies that JAG “involvement” does not
mean getting in the way of military operations: “You don’t want to stick
your nose in where it doesn’t belong.”43 Such a remark implies that law and
military lawyers belong to a sphere that is separate from, and should not
intrude upon, the real business of executing military operations. That may
well not have been an entirely new phenomena for the US military at the
time, but there is little doubt that the ghosts of Vietnam haunted conversa-
tions about law and military practice in the postwar period. Operational
law was one of the key, yet underappreciated, institutional responses by
the US military to their legal shortcomings in Vietnam. The next major
US war—the First Gulf War—would demonstrate operational law’s capac-
ity to legislate large-scale infrastructural violence. Military lawyers were
deployed in unprecedented numbers to provide legal advice on the target-
ing of Iraq and helped create and widen the scope of what was considered
a legitimate military target.44 The Israel military took note of these devel-
opments and would expand its own operational legal capacities when the
time was right.
The Second Intifada and Legally Sanctioned Violence
In September 2000, Palestinians began protesting against the Israeli

occupation in what would become known as the Second Intifada. Israel’s
military response to the popular uprising has been well documented but
only recently have scholars excavated the careful legal interpretive work
that made such a response possible.45 Three developments in particular
are instructive to my argument and help to lay important foundations for
the legal conduits that continue to nourish and connect the US and Israel
militaries and state policies: these conduits run both ways and represent a
concerted attempt to turn sui generis policy preferences and sometimes

also controversial legal opinion into “law.”
The first development was a legal innovation by the Israel military’s
Military Advocate General (MAG) Corps that sought to conceive of the
Second Intifada as precipitating and belonging to a paradigm of war. The
structure of war that Israel has and continues to maintain over Gaza might
seem readily apparent today, but it is the result of once deeply controversial
legal imaginings. Less than two months after the Intifada began, the Israel
Ministry of Foreign Affairs released a press briefing describing a series of
new military regulations. The speaker who conducted the briefing was
Colonel Daniel Reisner, the head of the International Law Department of
the Israel military (a subdivision of the Military Advocate General Corps).
He announced:
The rules of engagement for the IDF [Israel Defense Force] in the
West Bank and Gaza Strip have been modified in accordance with
the change in the situation. Prior to the violent events, “police rules
of engagement” were applied. [. . .] the situation has now changed.
The Palestinians are using violence and terrorism on a regular basis.
They are using live ammunition at every opportunity. As a result,
Israeli soldiers no longer are required to wait until they are actually
shot at before they respond.46
Here we witness the transfer of risk away from Israeli soldiers (who
used to be able to fire only in self-defense but who henceforth could fire
preemptively and unprovoked) to the Palestinian population, a trend
that was later incorporated into Israel military doctrine and written into
the military’s “code of ethics.”47 The legal contention was that Israel had
entered what MAG lawyers termed an “armed conflict short of war.”48 This
was a deliberate act of juridical creation and innovation. The purpose was
twofold: (1) to create a third category that was neither international armed
conflict (IAC) nor non-international armed conflict (NIAC) in order to
avoid the unwanted responsibilities that that these legal regimes would
impose on Israel and the unacceptable rights they would grant to Palestin-
ians;49 (2) placing the Intifada in the context of war (or a war that is not
quite a war)—rather than civil unrest or police operations—would over-
ride other, more restrictive legal regimes and, in particular, International
Human Rights Law (IHRL).50 IHRL and the traditional law enforcement
(police) paradigms generally place far greater restrictions on the use of
lethal force than the laws of war, and would not permit the kind of expan-
sion of the definition of what constitutes a legitimate military target that

Israel was advocating for.51
The second and related development is the assertion of a legal right to
kill and an expansion what constitutes a legitimate military target. Some-
time shortly after the start of the Intifada, the Israel military chief of staff,
Shaul Mofaz, placed a telephone call to the office of the MAG asking Com-
mander General Menachem Finklestein (the head of the MAG) and Reis-
ner: “Am I allowed, if I identify a terrorist leader on the other side, am I
allowed to kill him—publicly, not using clandestine ‘007’ techniques? Can
I kill him, and if so under what conditions?”52 Reisner’s response to Mofaz
demonstrates the power of the operational law in achieving military out-
comes: “[W]e came up with a legal opinion which [said] that on the basis of
our understanding of the law [. . .] we think that you can target an enemy
terrorist, intentionally target an enemy terrorist if you fill five condi-
tions.”53 I have documented these conditions elsewhere, but their detailed
content is far less important than the overarching new military-legal policy
that they gave rise to.54
In November 2000, Israel publicly announced that it had targeted
and killed Hussein Abiyat, a senior member of Fatah. Paramilitary Jewish
groups had carried out political assassinations during the British Mandate
period (1939–1947) and state-sponsored assassination continued under the
structure of the Israeli state from 1948 to the 1990s.55 What was different
about the assassination of Abiyat, was that the Israel military was asserting
a legal right to kill Palestinian leaders and individuals in a way that it had
not done before. So began Israel’s long-standing policy of targeted killing.
Though it may now seem difficult to believe, the EU and the United
States condemned the policy and rejected Israel’s legal justification. An
international fact-finding mission, established by President Clinton and
led by former US senator George Mitchell, refused to accept Israel’s view
that the threshold of “armed conflict” had been crossed. As far as Mitch-
ell was concerned, the Intifada constituted civil unrest—a domestic police
issue—and not war. The Mitchell Report dismissed the idea of war as being
“overly broad” and noted that the “IDF should adopt crowd-control tac-
tics that minimize the potential for deaths and casualties,” further urging
that “an effort should be made to differentiate between terrorism and pro-
tests.”56 The message was clear: terrorism could not legitimately be dealt
with via recourse to war, and Israel should revert back to the law enforce-
ment approach, a legal regime that places far greater restrictions on the
use of lethal force than does the laws of war.57 The criticism, however, was
short-lived and after the events of 9/11, the United States sent delegations
to Tel Aviv, and within a year the United States began its own targeted kill-
ing program.58
These two developments—the invention of the paradigm of war and
the concomitant expansion of the definition of what constitutes a lawful
target via a newly asserted right to kill—might seem tangential to the rise
of operational law that I have so far traced, but they are actually closely con-
nected. The United States borrowed both the paradigm of war and some
of the legal justifications for assassination/targeting killing from Israel, but
the apparatus that made those legal creations possible—the incorporation
of military lawyers in Israeli targeting policy by way of a beefed-up Mili-
tary Advocate General—was in many ways indebted to the US invention
and development of operational law. Again, these circulations of law and
policy are bidirectional and reinforcing.
The third and final development, then, was the decision taken by the
Israel military in the early 2000s to employ military lawyers in targeting
operations and seek their legal advice on everything from broad targeting
policy to specific targeting operations. As I noted above, military lawyers
have served in Israel since—and even before—1948 and they have been an
important part of the institutional apparatus of occupation ever since.59 It
was not until the outbreak of the Second Intifada, however, that military
lawyers began to provide day-to-day legal advice on targeting operations.
According to Reisner, the inspiration to do so came directly from the US
military and, in particular, the US experience in Panama in 1989, where
operational lawyers sharpened their newfound skills in preparation for the
First Gulf War.60 But much more than mimicking US military practice in
employing military lawyers in targeting operations, the Israel military also
mimicked the ideological and instrumentalist logic of operational law—the
law as “force multiplier.” Borrowing from the US lessons learned during
the 1970s and 1980s, it too would take a proactive and preemptive approach
to the laws of war, ensuring that its principles were aligned with and would
make space for increasingly aggressive military operations against Gaza.
Destructive Habits: Putting Operational Law to Work in Gaza
Israel has launched successive major aerial and ground assaults in Gaza
over the last two decades and has done so while also enacting and enforc-
ing a siege against the territory and its people.61 Laleh Khalili has called
the recent rounds of violence visited upon Gaza a settler-colonial “habit
of destruction.”62 In what remains of this chapter I show how the destruc-
tive habits of the Israel military are enabled, extended, and legitimized by
operational-legal logics that habitually slate Gaza and Gazans as targetable.
With military lawyers sitting at the sides of commanders in both planned
(deliberate) and unplanned (dynamic) targeting operations, the shape and
direction of military operations in Gaza over the last two decades has been
shaped in no small part by a particular, and particularly aggressive, opera-
tionalization of the laws of war.
In 2002, the Israel military laid the foundations for the attacking of
civilian and government infrastructure. During that war, dubbed “Opera-
tion Defensive Shield,” the Israel Air Force struck a variety of targets
including the Ministry of Education, the Ministry of Civil Affairs, the
Palestinian Legislative Council, the Central Bureau of Statistics, and the
al-Bireh Municipal Library.63 A MAG legal memo (which remains classi-
fied) defined these as legitimate targets, preemptively constructing them
as targetable. In 2006, in Lebanon, the Israel military demonstrated that
the targeting of the civilian population and civilian infrastructure was not
an anomaly but would henceforth become a policy. The logic was to bomb
the civilian population into rejecting Hezbollah and in turn deter Hezbol-
lah fighters from taking up arms against Israel. This was a form of morale
bombing, and it is exactly what the United States had done in the First
Gulf War a decade earlier in order to put pressure on Iraqis to reject Sad-
dam Hussein’s leadership (a policy that conveniently overlooked the fact
that Saddam Hussein was a dictator).
Two years after the war with Lebanon, Maj. General Gadi Eisenkott
unveiled what became known as the “Dahiya Doctrine”:
In the Second Lebanon War we used a great deal of bombs. How

else were 120,000 houses destroyed? [. . .] What happened in the
Dahiya Quarter of Beirut in 2006, will happen in every village
from which shots are fired on Israel. We will use disproportionate
force against it and we will cause immense damage and destruction.
From our point of view these are not civilian villages but military
bases. [. . .] This is not a recommendation, this is the plan, and it has
already been authorized.64
This is a radical reinterpretation of the laws of war, and it departs from

majority interpretations of the principle of proportionality. Yet just two
months before the outbreak of the next major military operation—
“Operation Cast-Lead”—in December 2008, the Institute for National
Security Studies, a think tank at the Tel Aviv University, which reflects
mainstream military thinking, published an article by Dr. Gabriel Siboni,

a colonel reservist who claimed that “[t]his approach is applicable to the
Gaza Strip as well.”65
The planning for “Operation Cast-Lead” began six months in advance,
and military lawyer David Benjamin boasted that military lawyers were
“intimately involved [in the] approval of targets.”66 On the opening day
of the assault the Israel Air Force bombed a police cadet graduation cer-
emony, killing nearly 50 police personnel. By the end of the three-week
assault, the Israel military had killed a total of 248 civilian police officers
who were not directly participating in hostilities. An ex post facto investi-
gation by the Israel Ministry of Foreign Affairs revealed that the MAG had
approved the targeting of police on the basis that the “police are part of the
armed forces” of Hamas.67 This conveys some of the power of predefining
targets through legal categories and it is not difficult to see how a single
legal opinion—“the police now constitute a military target”—conditions
and sets in motion a series of subsequent individual targeting operations.
Two weeks into the operation, Israel military spokesman Captain Benjamin
Rutland confirmed that the military had started using an expanded defini-
tion of who constitutes a legitimate target. Rutland told the BBC: “our
definition is that anyone who is involved with terrorism within Hamas is
a valid target. This ranges from strictly military institutions and includes
the political institutions that provide the logistical funding and human
resources for the terrorist arm.”68
As documented by a major UN fact-finding investigation in 2009, the
expansion of the definition of what constitutes a legitimate target led to
mass destruction and death of persons and objects that should have been
immune from attack, including, inter alia, civilians attempting to evacuate
their houses; whole families who were in no way directly participating in
hostilities; homes and whole residential areas; food and energy produc-
tion facilities; medical facilities and medical vehicles; and UN buildings
and mosques.69 To justify each of these strikes the MAG offered two legal
innovations: first, it defined civilian infrastructure as “dual use,” meaning
that when a given facility or building is also used for military purposes it
loses its protected status thus rendering it a “legitimate target.”70 The same
principle was later used to restrict imports into Gaza: materials that could
be used for military purposes—which includes supplies like concrete that
are vital to everyday life and reconstruction after military bombardment—
were prohibited or severely limited from entering Gaza from 2006
onwards. Many of these restrictions remain in place today. Second, and
as documented by Eyal Weizman, the Israel military made extensive use
of “technologies of warning,” which were used as a carte blanche to target

civilian areas after they had received warnings to evacuate.71
In 2012, when Israel launched yet another aerial assault on Gaza
(“Operation Pillar of Defense”), media and communications facilities were
hit, and Palestinian and foreign journalists were killed. A military spokes-
person justified the attacks thus:
[W]hen terrorist organizations exploit reporters, either by posing

as them or by hiding behind them, they are the immediate threat to
freedom of the press. Such terrorists, who hold cameras and note-
books in their hands, are no different from their colleagues who
fire rockets aimed at Israeli cities and cannot enjoy the rights and
protection afforded to legitimate journalists.72
Again, we witness the enlargement of the scope of the legitimate target,

but even this pattern of violence could not prepare UN Secretary Gen-
eral Ban Ki-moon for what he would witness in 2014 at the end of so-
called Operation Protective Edge. The destruction, he told journalists, was
“beyond description.”73 The Israel military struck some 5,266 targets in
Gaza and the air force also carried out 840 strikes in support of troops on
the ground.74 The Israel military reported that they supplied 5,000 tons of
munitions to the fighting forces,75 while the Gaza Bomb Disposal Team
estimated that the figure was between 18,000 and 20,000 tons.76
Reports from human rights organizations suggest that the overly per-
missive approach adopted by legal advisers in Operation Cast-Lead were
readopted and even extended in preparation for Operation Protective
Edge. Medical facilities and medical workers were targeted,77 as were UN
shelters and schools,78 acts that were condemned by the White House as
“totally unacceptable” and “totally indefensible.”79 In a letter to the MAG,
B’Tselem suggested that legal and military directives had been given
“to attack the homes of operatives in Hamas and other organizations as
though they were legitimate military targets.”80 B’Tselem’s investigations
also found a “proliferation of incidents in which many civilians were killed
in a single incident—more than in previous operations—in terms of both
the number of casualties in each incident and the overall number of such
instances.”81
The Israel military has been conducting investigations into what the
MAG call “Exceptional Incidents” that occurred during Operation Pro-
tective Edge. In one aerial strike, the Israel military targeted a residen-
tial building in order to kill a senior Hamas commander. The intelligence
assessment found that “no civilians were present in the structure,” and that
the “entire structure” (rather than a particular part of it) must be struck
in order to attack the commander. After issuing no warnings, 35 civilians
were killed and a further 27 injured, the MAG found.82 In another strike,
a family home in Al-Bureij was hit because it was allegedly being used as
an active Hamas command and control center. This time the intelligence
assessment showed that civilians were “likely to be present in the build-
ing,” but the anticipated “collateral damage” was not expected to be “exces-
sive.” Again, no warnings were issued because this may have “frustrated the
objective of the attack.” The strike killed 19 or 20 civilians, a figure that the
MAG concede is “substantially higher” than what the intelligence assess-
ment had anticipated.83
In each of these cases—and many more—the MAG took no disciplinary
or criminal proceedings on the basis that the actions reviewed “accorded
with Israeli domestic law and international law requirements.” Key law of
war principles are summoned in order to defend Israel’s military action:
the attacks were against military targets; civilian casualties were proportional
(and often unforeseen); steps were taken to minimize civilian casualties; and
though strikes often led to “difficult and regrettable” results, civilian harm
“does not affect the legality of the attack[s] ex post facto.”84 It is difficult to
meaningfully engage with, let alone dispute, these conclusions because the
relevant information is not in the public domain and remains classified.
Even if we were to accept at face value the MAG’s assertions that Israel
aerial action in “Operation Protective Edge” was overwhelmingly lawful
(qua procedurally compliant), serious doubts remain about the quality of
intelligence and the standards required in order to authorize a strike. For
Cohen and Shany there are:
[D]ifficult questions regarding the amount and quality of intel-

ligence a military commander should gather prior to ordering an
attack, particularly against buildings used by enemy combatants that
might contain civilians. [. . .] the MAG suggests that, at least in rela-
tion to criminal law, the burden on military commanders to gather
substantial amounts of quality intelligence is low.85
But more to the point, military lawyers “were constantly present and
available to commanders [. . .] to provide ongoing operational legal advice”
during the operation.86 Even the most lethal and large-scale violence went
through legal review. Much like in the United States in the First Gulf war,
successive Israeli military operations in Gaza over the last two decades
have witnessed widespread infrastructural and human destruction by oper-

ational legal design. Much of this destruction might have taken place with-
out the intimate involvement of military lawyers, but their presence in the
operational war rooms in both the United States and Israel has provided
vital legitimacy, and has also lifted some of the political and moral weight
of the decision to kill.87
The Assault through International Law
The United States and Israel have been at the forefront of efforts to shape
the international law on targeting. They have done so in no small part
through the invention and development of operational law, a seldom com-
mented upon and yet increasingly important legal regime that blurs the
boundaries between international and domestic law and seeks to opera-
tionalize law as an extension of and means of realizing military ends. In
close cooperation and exchange, both states have adopted targeting tactics
and policies that have proved controversial and that push at the boundaries
of international law. The United States and Israel have actively and delib-
erately sought to widen the scope and space of what constitutes a permis-
sible target, and this has been achieved not by ignoring or circumventing
international law but by domesticating it through the space of operational
law and via the creative and everyday interpretive legal work of military
lawyers.
In his book The Assault on International Law, Jens David Ohlin argues
that, “International law is under attack in the United States.”88 Ohlin is con-
cerned in particular with a “small group of legal scholars” he calls the New
Realists who, in the wake of 9/11, set about undermining international law
and asserting the supremacy of presidential power and US sovereignty.89
The assault was based on an assumption that international law impinges
on US sovereignty and would thus hamper the ability of the United States
to fight its enemies in the “war on terror.” Ohlin argues that this portrait
of international law is misleading, and the assault thus advanced on a mis-
taken premise. As a corrective he proffers:
In the war on terror, international law is our best friend, not our
worst enemy. [. . .] In reality, the laws of war provide the United
States with all the tools it needs to aggressively fight al-Qaeda [. . .]
and other jihadist organizations. [. . .]90
The language of assault is appropriate, but my argument has been that

this is not so much an assault “on” international law as it is an assault through
international law via the interpretive space of operational law. There are
two advantages to seeing legal strategy thus. First, an assault on interna-
tional law assumes an essentialist conception of law—and especially the lib-
eral idea that international law is ultimately a force for good—whereas an
assault through the architecture of international and operational law refuses
such a conception in favor of indeterminacy (i.e., international law is what
states and state militaries operationalize it to be). Second, an assault through
international law implores us to identify the ways in which, alongside its
constraining function, international law also serves as a vector of violence.
International law and the laws of war have long histories of violence and
have been implicated in the pursuit of colonial conquests, imperialism,
slavery, and the imposition of capitalist and (neo)liberal orders the world
over, so it makes more sense to think of the ways in which violence oper-
ates through law rather than “on” it.91 The assault through international and
operational law does not dispense with law; instead it strategically employs
and deploys its vocabulary and content in order to wage and win wars.
The controversial interpretations and attempts to shape the laws of
war both vis-à-vis operational law and targeting that I have documented in
this chapter should be seen in a broader context of the United States’ and
Israel’s strategic investment in international law. Highlighting a distinct
overlap between US and Israeli preferences for flexible juridical forms of
warfare, Laleh Khalili argues: “The two powers converge on their use of
overwhelming force alongside a discourse of legality. In both cases, the
law has been innovatively interpreted and deployed to allow a fairly unfet-
tered freedom of action for the military.”92 Two states alone cannot change
customary international law, but they can have an outsized impact on the
direction of travel if their actions are unopposed and, especially, if other
states adopt similar practices.
In an important paper on the use of preventive military force in jus ad bel-
lum, Victor Kattan usefully distinguishes between two different approaches
to the forging of customary international law. The first approach, embod-
ied by the International Court of Justice, is based on consensus and sov-
ereign equality: changes in law require consent from many (though it is
not clear how many) states, and violation of the norm is not an advisable
way to change the norm because doing so undermines the very founda-
tions of the law.93 But according to Kattan, a second approach has emerged
in recent decades, and especially on the heels of the NATO intervention
in the former Yugoslavia, that he usefully refers to as “hegemonic law.”94
Drawing on the work of Ian Brownlie, Kattan argues that the hegemonic
approach “facilitates the transition of the difference in power between
states in to specific advantages for the more powerful actor.”95 Kattan is
principally interested in how Bush-era interpretations of preventive mili-
tary force early in the war on terror have been subsequently employed not
only by the Obama administration but also the United Kingdom, Israel,
and Australia, despite the fact that these interpretations depart radically
from the United Nations Charter. This is some distance from the areas
of international and operational law that I have been documenting in this
chapter, but Kattan’s analysis offers some important cautionary warnings
for the forging of customary law vis-à-vis targeting. Lubricating the policy
transfers between the United States and Israel is a new way of forging
customary law, one that departs from the democratic model of sovereign
equality and consent in favor of a trailblazing custom forged by the hege-
monic few and largely unopposed by asymmetrically “weaker” and legally
unequipped states.96
It is doubtful whether many of the more brazen legal assertions I have
detailed in this chapter today amount to customary international law, but
that determination is governed in no small way by what model of custom-
ary international law we follow. My concern here is that powerful nations
like the United States and Israel are not only forging ahead with aggres-
sive interpretations of international law but are seeking also to make their
sui generis policy preferences into law, and meanwhile those outside the
operational war rooms and policy forums are shouting but are ultimately
not listened to in this new paradigm. Operational law provides a shared
lexicon and space for hegemonic militaries to continually reimagine the
boundaries and content of international law—or at least it does for those
militaries who have enough resources to think about and engage with such
issues in a variety of legal, policy, academic, and intergovernmental fora.
Many militaries, of course, do not: international law is disproportionately
shaped not just by powerful militaries but by juridically minded militaries.
Few experts and commentators would likely have foreseen the extent to
which their interpretive projects in the years after the Vietnam War would
ripen into something so far-reaching so many years later. Nevertheless,
when we look to contemporary US and Israel targeting operations in and
not limited to the Middle East, we are witnessing the realization of a con-
certed 50-year effort to avoid patently illegal behavior on the battlefield
(the legacy of My Lai) and to make the laws of war relevant once again to
the warfighting commander (the legacy of the post-Vietnam War percep-
tion that the laws of war were synonymous with, and only with, restraint).
NOTES
1. Craig Jones, “Frames of Law: Targeting Advice and Operational Law in the
Israeli Military,” Environment and Planning D: Society and Space 33, no. 4 (2015):
676–96; Eyal Weizman, The Least of All Possible Evils: Humanitarian Violence from
Arendt to Gaza (London: Verso, 2011).
2. The MAGC was formed in 1948 out of the legal service of the Haganah, a
Jewish paramilitary organization in what was then the British Mandate of Palestine
(1920–1948). Maayan Geva, “Military Lawyers Making Law: Israel’s Governance
of the West Bank and Gaza,” Law & Social Inquiry 44, no. 3 (August 2019): 704–25.
3. Craig Jones, “Travelling Law: Targeted Killing, Lawfare and the Decon-
struction of the Battlefield,” in American Studies Encounters the Middle East (Chapel
Hill: University of North Carolina Press, 2016).
4. Jens David Ohlin, The Assault on International Law (New York: Oxford Uni-
versity Press, 2015).
5. Brian Cuddy, “Wider War: American Force in Vietnam, International Law,
and the Transformation of Armed Conflict, 1961–1977” (PhD diss., Cornell Uni-
versity, 2016), https://ecommons.cornell.edu/handle/1813/45131
6. David Delaney, “What Is Law (Good) For? Tactical Maneuvers of the Legal
War at Home,” Law, Culture and the Humanities 5, no. 3 (2009): 337–52; Samuel
Moyn, “From Antiwar Politics to Antitorture Politics,” in Law and War, ed. Aus-
tin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, The Amherst Series
in Law, Jurisprudence, and Social Thought (Stanford: Stanford University Press,
2014), 154–97.
7. Often forgotten is the fact that the United States launched relentless bomb-
ing campaigns in Laos and Cambodia for much of the 1960s and 1970s. These
campaigns were particularly brutal. Neta C. Crawford, “Targeting Civilians and
U.S. Strategic Bombing Norms,” in The American Way of Bombing: Changing Ethical
and Legal Norms, from Flying Fortresses to Drones, ed. Matthew Evangelista (Ithaca:
Cornell University Press, 2014), 64–86.
8. W. Hays Parks, “Rolling Thunder and the Law of War,” Air University
Review 33, no. 2 (1982): 11–13.
9. Parks, “Rolling Thunder and the Law of War.”
10. Mark Clodfelter, The Limits of Air Power: The American Bombing of North
Vietnam, new ed. (Lincoln: Bison Books, 2006), 158.
11. “President Nixon gave the Seventh Air Force Commander considerably
more latitude and flexibility in directing the aerial operation than previously per-
mitted. [. . .] Now, the Seventh Air Force Commander usually set his own priori-
ties, selected targets, and determined the strike. This allowed him to consider such
important factors as military priorities, weather, enemy defences, and operational
status of the target. The theatre air commander also had the authority to restrike
or divert strikes based on his assessment of post-strike reconnaissance. This funda-
mental change in management returned a portion of the process of prosecuting the
war to the professional military commander in the field.” Paul Burbage et al., “The
Battle for the Skies Over North Vietnam: 1964–1972,” in The Tale of Two Bridges and
The Battle for the Skies Over North Vietnam (Collingdale, PA: DIANE Publishing,
1976), 150.
12. W. Hays Parks, “Linebacker and the Law of War,” Air University Review 34,
no. 2 (1983): 2–30.
13. Parks, “Linebacker and the Law of War.”
14. Crawford, “Targeting Civilians and U.S. Strategic Bombing Norms.”
15. Quoted in Keeva, “Lawyers in the War Room,” 56.
16. Moorman, Interview.
17. W. Hays Parks, “Teaching the Law of War,” Army Law, 1987, 9.
18. W. Hays Parks, “The Gulf War: A Practitioner’s View,” Dickinson Journal of
International Law 10 (1992–1991): 397.
19. Robert L. Bridge, “Operations Law: An Overview,” Air Force Law Review 37
(1994): 2, emphasis added.
20. For a description of what happened at My Lai see Greiner, War without
Fronts, 181–238, and in particular 211–29.
21. William Raymond Peers, Report of the Department of the Army Review of the
Preliminary Investigations into the My Lai Incident: The Report of the Investigation, vol.
1 (Washington, DC: The Department of the Army, 1974), 5–16, http://www.loc
.gov/rr/frd/Military_Law/Peers_inquiry.html
22. Kendrick Oliver, The My Lai Massacre in American History and Memory (Man-
chester: Manchester University Press, 2006), 1. Reliable facts and statistics are still
difficult to ascertain, as Bernard Greiner explains: “As no soldier in C Company
had an overview of the entire action, the Criminal Investigation Division of the
Army consulted population statistics and compared these equally unreliable details
with the statements of survivors and the tax registers of the provincial administra-
tors. This yielded an overall figure of between 400 and 430 victims in Xom Lang
and Bihn Tay—the villages known as My Lai (4).” Greiner, War without Fronts,
212. Gary Solis puts the number at approximately 345. Gary D. Solis, The Law of
Armed Conflict: International Humanitarian Law in War, 1st ed. (Cambridge: Cam-
bridge University Press, 2010), 236. Nick Turse claims, “Over four hours, members
of Charlie Company methodically slaughtered more than five hundred unarmed
victims.” Nick Turse, Kill Anything That Moves: The Real American War in Vietnam
(New York: Metropolitan Books/Henry Holt and Co., 2013), 3.
23. Greiner, War without Fronts, 221.
24. Joseph Goldstein et al., The My Lai Massacre and Its Cover-Up: Beyond the
Reach of Law? The Peers Commission Report (New York: Free Press, 1976); Michael
Bilton and Kevin Sim, Four Hours in My Lai, Rpt. ed. (New York: Penguin Books,
1993).
25. Jeffrey F. Addicott and William A. Hudson, “The Twenty-Fifth Anniversary
of My Lai: A Time to Inculcate the Lessons,” Military Law Review 139 (January
1993): 156.
26. Addicott and Hudson, 154.
27. Bernd Greiner, War Without Fronts: The USA in Vietnam (New Haven: Yale
University Press, 2009); Turse, Kill Anything That Moves.
28. Peers, Report of the Department of the Army Review of the Preliminary Investiga-
tions into the My Lai Incident, 1: 8–13.
29. S. A. Myrow, “Waging War on the Advice of Counsel: The Role of Opera-
tional Law in the Gulf War,” USAF Acad. J. Legal Stud. 7 (1996): 133.
30. David Graham, “Operational Law: A Concept Comes of Age,” Army Law
175 (1987): 3.
31. US Department of Defense, “Department of Defense Directive: ‘DoD Law

of War Program,’” July 10, 1979, 2, http://handle.dtic.mil/100.2/ADA272470.
According to Army historian Frederic Borch, the Law of War Program was “a
direct result of My Lai [. . .] the Defense Department recognized that preventing
similar incidents required a new approach to ensuring obedience to the Law of
War.” Frederic L. Borch, Judge Advocates in Combat: Army Lawyers in Military Opera-
tions from Vietnam to Haiti (Washington, DC: Government Printing Office, 2001),
318.
32. Graham, “Operational Law: A Concept Comes of Age,” 10.
33. Parks, “Teaching the Law of War”; David E. Graham, “My Lai and Beyond:
The Evolution of Operational Law,” in The Real Lessons of the Vietnam War: Reflec-
tions Twenty-Five Years after the Fall of Saigon, ed. John Norton Moore and Robert
F. Turner (Durham: Carolina Academic Press, 2002); Laura Dickinson, “Military
Lawyers on the Battlefield: An Empirical Account of International Law Compli-
ance,” American Journal of International Law 104, no. 1 (2010): 1–28.
34. Parks, “Teaching the Law of War”; W. Hays Parks, “Rules of Engagement:
No More Vietnams,” in The U.S. Naval Institute on Vietnam: A Retrospective, ed.
Thomas Cutler (Annapolis, MD: Naval Institute Press, 2016), 150–55.
35. Jones, “Frames of Law,” 691.
36. John Fabian Witt, Lincoln’s Code: The Laws of War in American History (New
York: Free Press, 2013).
37. Parks, “Gulf War,” 398 emphasis added.
38. Parks, “Teaching the Law of War,” 9.
39. Jerry S. T. Pitzul, “Operational Law and the Legal Professional: A Canadian
Perspective Speeches and Comments,” Air Force Law Review (2001): 321.
40. Major General David H. Petraeus, commander 101st Airborne Division (Air
Assault) 2003–2004 quoted in:
United States Joint Chief of Staff, “Legal Support to Military Operations”
(Washington, DC: Joint Chiefs of Staff, August 2, 2016), II–6, http://www.dtic.mil
/doctrine/new_pubs/jp1_04.pdf
41. Michael Smith, “States That Come and Go: Mapping the Geolegalities of
the Afghanistan Intervention,” in The Expanding Spaces of Law: A Timely Legal Geog-
raphy, ed. Irus Braverman et al. (Stanford: Stanford Law Books, 2014), 152.
42. Geoffrey S. Corn and Gary P. Corn, “The Law of Operational Targeting:
Viewing the LOAC through an Operational Lens,” Texas International Law Journal
47 (2011): 344.
43. Quoted in Steven Keeva, “Lawyers in the War Room,” ABA Journal 77
(1991): 57.
44. Craig Jones, The War Lawyers (Oxford: Oxford University Press, 2020).
Stanford University Press, 2019), 178–83; Lisa Hajjar, “The Counterterrorism War
Paradigm versus International Humanitarian Law: The Legal Contradictions and
Global Consequences of the US ‘War on Terror,’” Law & Social Inquiry 44, no. 4
(November 2019): 922–56, https://doi.org/10.1017/lsi.2018.26
46. Israel Ministry of Foreign Affairs, “Press Briefing by Colonel Daniel Reis-
ner,” November 15, 2000, http://www.mfa.gov.il/MFA/MFAArchive/2000_2009
/2000/11/Press+Briefing+by+Colonel+Daniel+Reisner-+Head+of.htm?DisplayMo
de=print
47. James Eastwood, Ethics as a Weapon of War: Militarism and Morality in Israel
(Cambridge: Cambridge University Press, 2017).
48. George Mitchell et al., “Sharm El-Sheikh Fact-Finding Committee Final
Report,” Washington, DC: International Information Programs 5 (2001): 2002. Reis-
ner, interview.
49. Noura Erakat expertly summarises why Israel was reluctant to classify the
Second Intifada as either an IAC or NIAC: “Israel refused to recognize its confron-
tation with Palestinians as a civil war, or NIAC, because that would unravel the false
partition separating Israel from the Occupied Territories. Such recognition would
acknowledge Israel’s maintenance of a singular, discriminatory government, thus
exposing it to more pointed claims of pursuing a policy of creeping annexation and
overseeing an apartheid regime. [. . .] If Israel recognized the conflict as an IAC,
that would confer belligerent status on Palestinian militants, and Palestinian fight-
ers would have the right, under an international legal regime, to use lethal force
against Israeli military targets and installations. [. . .] This status would also permit
other states to legally intervene, with military and/or financial assistance, upon a
request by the Palestinian leadership. [. . .] [Instead] Israel insists that any Palestin-
ian use of force is terroristic and criminal.” (Erakat, Justice for Some: Law and the
Question of Palestine, 179–80).
50. This position is deeply controversial. Nils Melzer points out the applicabil-
ity of one legal regime—the lex specialis (in this case, International Humanitarian
Law)—does not preclude the applicability of another legal regime—the lex generalis
(for example, IHRL). Nils Melzer, Targeted Killing in International Law (New York:
Oxford University Press, 2009).
51. Melzer, Targeted Killing in International Law; Philip Alston, “Report of the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,” United
Nations Human Rights Council, 2010, http://www.unhcr.org/refworld/pdfid/4c0763
5c2.pdf
52. Reisner, interview, emphasis in original.
53. Reisner, interview.
54. There were actually six conditions. In summary these were: (1) targeting
must comply with the rule of proportionality under international humanitarian
law; (2) only combatants and those directly participating in hostilities may be tar-
geted; (3) suspects must be arrested rather than killed where possible; (4) suspects
who are located in areas under Israeli security control should not be targeted; (5)
individual targeting operations each require ministerial approval; (6) the focus of a
targeting operation must be aimed at preventing future attacks rather than being
carried out in retribution for past events. Jones, “Frames of Law,” 682–83.
55. Nachman Ben-Yehuda, Political Assassinations by Jews a Rhetorical Device for
Justice (Albany: State University of New York Press, 1993); Ronen Bergman, Rise
and Kill First: The Secret History of Israel’s Targeted Assassinations (London: John Mur-
ray, 2018); Markus Gunneflo, Targeted Killing: A Legal and Political History (Cam-
bridge: Cambridge University Press, 2016); Yossi Melman, “Targeted Killings—a
Retro Fashion Very Much in Vogue—Features,” Haaretz.com, March 24, 2004,
http://www.haaretz.com/print-edition/features/targeted-killings-a-retro-fashion
-very-much-in-vogue-1.117714; Dan Raviv and Yossi Melman, Every Spy a Prince:
The Complete History of Israel’s Intelligence Community (Boston: Houghton Mifflin,
1990).
56. George Mitchell, Suleyman Demirel, Thorbjoern Jagland, Warren B. Rud-

man, and Javier Solana, “Sharm El-Sheikh Fact-Finding Committee Final Report,”
Washington, DC: International Information Programs 5 (2001): np.
57. Mitchell et al., “Sharm El-Sheikh Fact-Finding Committee Final Report.”
See also Daniel Reisner, “International Law and Military Operations in Practice—
III—Jerusalem Center For Public Affairs,” Jerusalem Center for Public Affairs,
accessed May 30, 2013, http://jcpa.org/article/international-law-and-military-oper
ations-in-practice-iii/
58. Jones, “Frames of Law”; Jones, The War Lawyers.
59. Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West
Bank and Gaza, 1st ed. (Oakland: University of California Press, 2005); Maayan
Geva, Law, Politics and Violence in Israel/Palestine (Cham, Switzerland: Palgrave Mac-
millan, 2018).
60. For a full account of the legal exchanges between the United States and
Israel, see Jones, The War Lawyers.
61. Ron J. Smith, “Isolation Through Humanitarianism: Subaltern Geopolitics
of the Siege on Gaza,” Antipode 48, no. 3 (2016): 750–69, https://doi.org/10.1111
/anti.12224
62. Laleh Khalili, “A Habit of Destruction,” Society and Space—Environment and
Planning D (blog), 2014, http://societyandspace.com/material/commentaries/laleh
-khalili-a-habit-of-destruction/
63. Jessica Montell, “Operation Defensive Shield,” Tikkun 17, no. 4 (2002): 33–
41; B’Tselem, “Operation Defensive Shield” (Jerusalem, July 2002), http://www.bts
elem.org/download/200207_defensive_shield_eng.pdf
64. Quoted in Public Committee Against Torture in Israel (PCATI), “No Sec-
ond Thoughts: The Changes in the Israeli Defense Forces’ Combat Doctrine in
Light of “Operation Cast Lead’” (Jerusalem: PCATI, November 2009), 20, http://
www.stoptorture.org.il/files/no%20second%20thoughts_ENG_WEB.pdf
65. Quoted in Public Committee Against Torture in Israel (PCATI), 21.
66. Quoted in Gwen Ackerman, “Israel Deploys Lawyers to Head Off War-
Crimes Charges,” Bloomberg.com, January 22, 2009, http://www.bloomberg.com
/apps/news?pid=newsarchive&sid=aMvUB8w9xphM&refer=home. See also Barak
Ravid, “IAF Strike Followed Months of Planning,” Haaretz.com, December 28,
2008, http://www.haaretz.com/print-edition/news/iaf-strike-followed-months-of
-planning-1.260363
67. Israel Ministry of Foreign Affairs, “The Operation in Gaza- Factual
and Legal Aspects” (www.mfa.gov.il: IMFA, July 29, 2009), 89, http://
www.mfa.gov.il / MFA/ForeignPolicy/Terrorism/Pages/Operation_in_Gaza-
Factual_and_Legal_Aspects.aspx
68. Quoted in George E. Bisharat, “Violence’s Law,” Journal of Palestine Studies
42, no. 3 (2013): 77.
69. United Nations, “Report of the United Nations Fact Finding Mission on
the Gaza Conflict,” 2009, 199–217, http://www2.ohchr.org/english/bodies/hrcoun
cil/docs/12session/A-HRC-12-48.pdf
70. Israel Ministry of Foreign Affairs, “The Operation in Gaza-Factual and
Legal Aspects,” 55.
71. Eyal Weizman, Lesser Evils: Scenes of Humanitarian Violence from Arendt to
Gaza (London: Verso, 2011); Eyal Weizman, “Gaza Attacks: Lethal Warnings,” Al
Jazeera, July 14, 2014, http://www.aljazeera.com/indepth/opinion/2014/07/gaza-at

tacks-lethal-warnings-2014713162312604305.html
72. Quoted in Bisharat, “Violence’s Law,” 77.
73. Peter Beaumont and Hazem Balousha, “Ban Ki-Moon: Gaza Is a Source
of Shame to the International Community,” The Guardian, October 14, 2014, sec.
World news, http://www.theguardian.com/world/2014/oct/14/ban-ki-moon-visits
-gaza-views-destruction-of-un-school
74. Ben Hartman, “50 Days of Israel’s Gaza Operation, Protective Edge—by the
Numbers,” Jerusalem Post, August 28, 2014, http://www.jpost.com/Operation-Prot
ective-Edge/50-days-of-Israels-Gaza-operation-Protective-Edge-by-the-numbers
-372574
75. United Nations Office for the Coordination of Humanitarian Affairs, “Key
Figures on the 2014 Hostilities,” UNOCHA— Occupied Palestinian Territory,
June 23, 2015, https://www.ochaopt.org/content/key-figures-2014-hostilities
76. Al Jazeera, “Unexploded Munitions Add to Gaza Risks,” August 10, 2014,
https://www.aljazeera.com/video/middleeast/2014/08/unexploded-munitions-add
-gaza-risks-201481003251688388.html
77. Amnesty International, “Evidence of Medical Workers and Facilities Being
Targeted by Israeli Forces in Gaza,” August 7, 2014, http://www.amnesty.org/en/li
brary/asset/MDE15/023/2014/en/c931e37b-a3c2-414f-b3a6-a00986896a09/mde
150232014en.pdf; Derek Gregory, “Destructive Edge,” Geographical Imaginations
(blog), August 8, 2014, http://geographicalimaginations.com/2014/08/08/destruc
tive-edge/; Derek Gregory, “Gaza 101,” Geographical Imaginations (blog), July 21,
2014, https://geographicalimaginations.com/2014/07/21/gaza-101/
78. Human Rights Watch, “Unlawful Israeli Attacks on Palestinian Media,”
December 20, 2012, http://www.hrw.org/news/2012/12/20/israelgaza-unlawful-is
raeli-attacks-palestinian-media
79. Paul Lewis and Ian Black, “Gaza Conflict: US Says Israeli Attack on UN
School Was ‘Totally Unacceptable,’” The Guardian, July 31, 2014, http://www.theg
uardian.com/world/2014/jul/31/gaza-conflict-us-israeli-attack-un-school
80. B’Tselem, “Investigation of Incidents That Took Place during Recent Mili-
tary Action in Gaza: July-August 2014,” September 4, 2014, 2, https://www.btselem
.org/download/201400904_15390_letter_to_mag_corps_regarding_protective_ed
ge_investiations_eng.pdf
81. B’Tselem, “Investigation of Incidents That Took Place during Recent Mili-
tary Action in Gaza: July-August 2014,” 3.
82. Military Advocate General, “Decisions of the IDF Military Advocate Gen-
eral Regarding Exceptional Incidents That Allegedly Occurred During Operation
‘Protective Edge,’” August 15, 2018, 24–26, https://www.idf.il/en/minisites/milita
ry-advocate-generals-corps/releases-idf-military-advocate-general/mag-corps-pre
ss-release-update-6/
‘Protective Edge,’” 26–28.
‘Protective Edge,’” 26.
85. Amichai Cohen and Yuval Shany, “Israel’s Military Advocate General Termi-
nates ‘Black Friday’ and Other Investigations: Initial Observations,” Lawfare (blog),
August 27, 2018, https://www.lawfareblog.com/israels-military-advocate-general
-terminates-black-friday-and-other-investigations-initial
86. Military Advocate General of the Israeli Defense Force, “Operation ‘Pil-
lar of Defense’ 14–21 November 2012” (MAG: International Law Department,
December 19, 2012), 5, http://www.mag.idf.il/163-5398-en/patzar.aspx
87. Janina Dill, Legitimate Targets? Social Construction, International Law and US
Bombing (Cambridge: Cambridge University Press, 2014); Jones, The War Lawyers.
88. Ohlin, The Assault on International Law, 8.
91. Antony Anghie, Imperialism, Sovereignty and the Making of International Law
(Cambridge: Cambridge University Press, 2007); Lauren A. Benton, Law and Colo-
nial Cultures: Legal Regimes in World History, 1400–1900, Studies in Comparative
World History (Cambridge: Cambridge University Press, 2002); Lauren A. Ben-
ton, A Search for Sovereignty: Law and Geography in European Empires, 1400—1900
(Cambridge: Cambridge University Press, 2010); Laleh Khalili, Time in the Shad-
ows: Confinement in Counterinsurgencies (Stanford: Stanford University Press, 2012);
Helen M. Kinsella, The Image Before the Weapon: A Critical History of the Distinction
Between Combatant and Civilian (Ithaca: Cornell University Press, 2011); China
Mieville, Between Equal Rights: A Marxist Theory of International Law (Chicago: His-
torical Materialism, 2006).
92. Khalili, Time in the Shadows, 64.
93. Victor Kattan, “Furthering the ‘War on Terrorism’ through International
Law: How the United States and the United Kingdom Resurrected the Bush Doc-
trine on Using Preventive Military Force to Combat Terrorism,” Journal on the Use
of Force and International Law 5, no. 1 (2017): 124–25.
94. Kattan, “Furthering the ‘War on Terrorism’ through International Law,”
125.
126. Quoting Ian Brownlie “International Law at the Fiftieth Anniversary of the
United Nations” (1995–I) 255 Recueil des Cours 49, quoted in Michael Byers and
Simon Chesterman, “Changing the Rules About Rules? Unilateral Humanitarian
Intervention and the Future of International Law,” in J. L. Holzgrefe and Robert
O Keohane, eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas
(Cambridge: Cambridge University Press, 2003), 177, 193–94.
96. “[T]he United States had, as early as the 1980s, abandoned the tradi-
tional approach to creating customary international law that had been based on
consensus-building efforts. Those ‘halcyon days’, which produced the Declaration
on Principles of International Law concerning Friendly Relations (1970), the Defi-
nition of Aggression (1974), the Additional Protocols to the Geneva Conventions
(1977) and UNCLOS [UN Convention on the Law of the Sea] (1982), were over”
(Kattan, “Furthering the ‘War on Terrorism’ through International Law,” 129–30,
footnotes removed).
NINE
From Vietnam to Palestine

Peoples’ Tribunals and the Juridification of Resistance
Tor Krever
“Overwhelming evidence besieges us daily of crimes without precedent.

Each moment greater horror is perpetrated against the people of Viet-
nam. We investigate in order to expose. . . . We arouse consciousness in
order to create mass resistance. This is our purpose and the acid test of
our integrity and honour.”1 With these words, the philosopher and antiwar
activist Bertrand Russell opened the first session of the International War
Crimes Tribunal for Vietnam. A conscientious objector in the First World
War, Russell had a long history of antiwar activism and was outspoken in
opposition to US aggression in Vietnam. In a 1963 letter to the New York
Times, Russell wrote that American conduct in Vietnam was “reminiscent
of warfare as practiced by the Germans in Eastern Europe and the Japanese
in South East Asia.”2 In June 1966, Russell issued an “Appeal to American
Conscience,” announcing that he was approaching “eminent jurists, liter-
ary figures and men of public affairs” from around the world to constitute
a tribunal to investigate.3 Russell, by then in his mid-90s, would serve as
honorary president, while the French philosopher Jean-Paul Sartre would
take on the role of executive president, and the Yugoslav historian Vladimir
Dedijer that of chairman and president of sessions. They were joined by an
international assortment of prominent figures—Simone de Beauvoir, Lelio
Basso, James Baldwin, Isaac Deutscher, Mahmud Ali Kasuri, Peter Weiss,
Lázaro Cárdenas, Lawrence Daly, and others.
233
Given the eventual size of the antiwar movement, it is easy to forget just
how complacent much of the US and European public still was in the mid-
60s, as the Johnson administration unleashed Operation Rolling Thunder.
The obfuscations of the Western media kept the worst of US aggression
away from the news and a large majority of Americans favored further
escalation.4 A tribunal documenting and publicizing that aggression might,
Russell believed, go some way to raising consciousness in “the smug streets
of Europe and the complacent cities of North America.”5 By providing “the
most exhaustive portrayal of what has happened to the people of Vietnam,”
he hoped, the tribunal would galvanize opposition to the war and mobilize
resistance to US imperialism.
Political mobilization through appeals to public consciousness was hardly
new. What was strikingly original, however, was the use by private citizens of
a tribunal—a body modeled on a legal court—to judge and condemn state
behavior with reference specifically to international law. Only two years
before the Vietnam tribunal, Henry Cabot Lodge Jr., then US ambassador in
Saigon, had told reporters: “As far as I’m concerned, the legal aspect of [the
war] is of no significance.”6 A handful of legal challenges had been mounted
in the United States by conscientious objectors opposing the draft, but these
had focused largely on the conscience of the objector, not the legality of US
actions. With Russell’s tribunal, legality and international law were thrust to
the fore, the privileged frame by which US aggression was to be judged and
through which resistance was to be mobilized.
The Vietnam tribunal proved disappointing in the short term, with little
immediate impact on bien pensant opinion. Nonetheless it provided a model
and inspiration for numerous further “peoples’ tribunals.” Subsequent tri-
bunals have focused on repression and the violence perpetrated by mili-
tary juntas across Latin America (1973), rights violations in West Germany
(1978–79) and, with respect to native Americans, in the United States (1980),
and responsibility of Japanese political and military authorities for sexual
slavery and rampant sexual violence in Asia and the Pacific during the 1930s
and 1940s (2000). More recently, similar tribunals have been organized on
issues ranging from the 1965 Indonesian politicide to the Canadian mining
industry in Latin America. In 2005, a World Tribunal on Iraq challenged the
United States’ imperial intervention in Iraq, while in 2009, in the wake of
Israel’s 2009 assault on Gaza, a Russell Tribunal on Palestine was launched
to investigate and confront the occupation of Palestine.
While each differed in its particular focus and specific institutional
makeup, all bore Russell’s stamp and reproduced the model of the peo-
ples’ tribunal established in 1967.7 These tribunals, I argue in this chap-
From Vietnam to Palestine 235
ter, represent a political practice of resistance—to imperialism, to war,

to injustice. Focusing on two examples—the original Vietnam tribunal
and the more recent Palestine tribunal—I suggest that the novelty of
this practice lies in its embrace of law and legalism as the primary form
through which resistance is expressed and enacted. As such, I argue that
peoples’ tribunals are defined by a structural antinomy. Set up by private
citizens, political activists, and civil society organizations, these tribunals
enjoy no official legal authority. While adopting the form of a legal tri-
bunal, they do not seek to emulate formal courts of law. “The point,”
Jacques Derrida observed, “is not to reach a verdict resulting in sanctions
but to raise or to sharpen the vigilance of the citizens of the world.”8 The
peoples’ tribunal is a vehicle for mobilizing resistance to systemic injus-
tice: a political practice with no pretence of neutrality or impartiality. At
the same time, however, it is a model that rests, in its very adoption of the
tribunal form, on law and legalism. As Luis Moita writes, “the formalism
of the [tribunal’s] public sessions reproduces the model of a court hear-
ing.”9 For supporters like Moita, the very legitimacy of peoples’ tribunals
lies in their hewing closely to such formalism and the purported apoliti-
cal neutrality of liberal legalism.
In short, there is an apparent tension between the form and name these
bodies choose to take—the tribunal—and their avowedly political nature.
In this chapter, I show how in the case of both the Vietnam and Palestine
tribunals this tension resolved itself concretely into the question of these
bodies’ relationship with international law. In both cases, international
law and legality were foregrounded as the privileged frame of analysis and
condemnation. Yet the two tribunals also differed in important respects,
reflecting a shift over time in how the constitutive tension between law and
politics was balanced. The embrace of international law by the Vietnam
tribunal in the 1960s, at the height of the Third World movement and
anticolonial internationalism, can, I suggest, be understood as an instance
of “principled opportunism”—legalism mobilized in aid of the tribunal’s
broader practice of resistance against imperialism.10 By the time a peoples’
tribunal for Palestine was constituted in 2009, however, both Third World
and workers’ movements had collapsed, the language of international law
and human rights displacing other emancipatory frameworks in the politi-
cal imagination of internationalism. This can be seen, I argue, in the even
greater prominence awarded legalism by the Palestine tribunal, interna-
tional law now not merely invoked tactically but celebrated as the tribunal’s
very raison d’être. In this way, peoples’ tribunals both reflect and contrib-
ute to the juridification of resistance.
A War Crimes Tribunal for Vietnam
In November 1966, five months after Russell’s “Appeal to American Con-

science,” preparations for the Vietnam tribunal were underway and a pre-
liminary meeting held in London. The tribunal, Russell told the gathered
members, was to be convened “so that we may investigate and assess the
character of the United States’ war in Vietnam.” There was “no clear his-
torical precedent,” although the Nuremberg Tribunal, flawed as it was,
offered an example: an expression of outrage at the actions of the Nazis and
an attempt to devise criteria against which such actions could be judged
and according to which they might be condemned. Nonetheless, the Viet-
nam tribunal, if inspired by similar sentiments, would be markedly differ-
ent. Lacking the backing of any state, it could not hope to compel indi-
viduals to stand accused or to impose sanctions. These, however, were not
limitations, Russell insisted, but rather virtues: unencumbered by reasons
of state, the tribunal was free to undertake its “solemn and historic investi-
gation” impartially and “record the truth in Vietnam.”11
Earlier that year, Russell had written to President Johnson inviting him
to appear before the tribunal to defend US actions and answer the evi-
dence of US atrocities.12 The invitation went unanswered. When a fur-
ther invitation was extended, by Sartre to Secretary of State Dean Rusk,
the latter remarked glibly to reporters that he had no intention of “play-
ing games with a 94-year-old Briton.”13 In private, though, US officials
expressed concern about the tribunal and its potential impact. In July 1966,
an interagency group chaired by Under Secretary of State George Ball and
composed of officials from the State Department, CIA, US Information
Agency, and Department of Defense was charged with discrediting Rus-
sell and the tribunal and, if possible, preventing its meetings.14 The next
month, Ball reported to the president that the group was “quietly explor-
ing with the British and French available legal steps that could be taken to
forestall this spectacle. We also plan to stimulate press articles criticizing
the ‘trials’ and detailing the unsavory and leftwing background of the orga-
nizers and judges.”15
The propaganda campaign was successful in the United States, where a
deferential media rehearsed State Department aspersions: the tribunal was
“a farce” whose members were “not interested in peace,” a group of anti-
Americans spreading communist propaganda.16 According to the New York
Times, Russell was “a full-time purveyor of political garbage indistinguish-
able from the routine products of the Soviet machine” who had “sunk to
defending—not just denying or minimizing, but actively defending—the
atrocities of the Viet Cong in Vietnam.”17 The White House, Under Secre-
tary of State Nicholas Katzenbach happily reported to President Johnson,
had provided the background for the smear.18
Less hyperbolic was the claim that the tribunal was biased, its members
hostile to US policy, and their conclusions predetermined. In the face of
such reproach, Russell remained unapologetic. We must reject the view,
Russell insisted at the tribunal’s London meeting, “that only indifferent
men are impartial men.” Open minds were not to be confused with empty
ones. Every day brought new prima facie evidence of crimes in Vietnam
and the tribunal’s members could not help but have feelings about them.
Quite the contrary: “[n]o man unacquainted with this evidence through
indifference has any claim to judge it.”19
For Sartre, too, such complaints misconstrued the nature of the tribu-
nal. “There is no question of judging whether American policy in Vietnam
is evil,” he told Le Nouvel Observateur in November 1966. Of this, “most
of us have not the slightest doubt.” The task of the tribunal was narrower:
not simply to condemn US policy in moral terms but to determine the
legality of that policy and its concomitant actions—do they fall, specifically,
“within the compass of international law on war crimes?” On this question,
Sartre insisted, “our judgements cannot be given in advance, even if we are
committed, as individuals, in the struggle against imperialism. . . . This war
is certainly contrary to the interests of the vast majority of people, but is it
legally criminal? That is what we will try to determine.”20
The task of the tribunal, then, was not merely to provide an “exhaustive
portrayal” of US violence but to judge that violence in legal terms. Here,
then, was the strikingly original aspect of Russell and Sartre’s venture: pri-
vate citizens would use the form of a legal tribunal, applying international
legal norms, to judge state behavior. This was both novel and controver-
sial. Russell and Sartre had initially planned to hold their tribunal in Paris,
only for the French to deny its members visas. “Justice of any sort,” stated
French President de Gaulle, “in principle as in execution, emanates from
the State.” The tribunal, he insisted, “through its very form . . . would be
acting against the very thing which it is seeking to uphold.”21 Not at all,
shot back Sartre in April 1967: “Real justice must draw its force both from
the state and the masses.” The tribunal did not claim, whatever de Gaulle
affected to believe, to substitute itself for any existing court. It was precisely
the institutional vacuum left by self-interested states and a cowed UN that
required people of conscience to carry forward the Nuremberg legacy.22
De Gaulle was not to be moved, however unconvincing his dissembling:
the Palais de l’Élysée had already assured the US embassy the previous
month that the tribunal would be banned from French soil.23 In Britain,
Harold Wilson’s government, faithfully subservient to Washington, fol-
lowed suit, refusing visas to North Vietnamese witnesses and condemning
the tribunal as one-sided. Russell and Sartre eventually found a reluctant
host in Sweden, Prime Minister Tage Erlander confiding to his British
counterpart that despite the “considerable political embarrassment” caused
by the tribunal, he simply lacked the legal power to prevent it.24
The tribunal’s first session opened finally on May 2, 1967, in Stock-
holm. Age and ill health prevented Russell from attending, but his opening
statement, a passionate indictment of the war and a call for the tribunal
to work diligently to record the truth of Vietnam, was read by his secre-
tary, Ralph Schoenman. Eight days of hearings followed with testimony
heard from Vietnamese witnesses as well as a potpourri of experts: lawyers,
doctors, biochemists, agronomists, sociologists, historians, journalists. A
second session was convened between November 20 and December 1 in
Roskilde, Denmark.
To read the tribunal record today is to read a catalogue of atrocity—“a
litany of pain,” as one contemporary observer put it.25 There are the sober
reports of weapons experts, doctors, and scientists on the fragmentation
or cluster bombs designed specifically to maim; on the medical effects
of napalm; and on the use and consequences of chemical weapons and
defoliation and the destruction of dykes and irrigation systems. There
are the reports from members of the tribunal’s fact-finding missions to
North Vietnam, firsthand accounts of the ravages of napalm—“his ears just
melted”—and evidence of deliberate targeting of civilians—village after
village obliterated; hospitals, schools, and churches bombed, far removed
from any military target. And then there is the testimony of survivors: the
prisoner of war tortured; the young school teacher, Ngo Thi Nga, asleep
with her pupils in a small village classroom when the American bombs fell;
the nine-year-old Do Van Ngoc, herding cattle under a rain of napalm—
“on my right hand, the thumb is stuck to the other fingers; large scars
remain on my stomach and my thighs.”26
At the close of the Stockholm session, after considering this and other
testimony and submissions, the tribunal issued a verdict finding that the
US had committed “acts of aggression against Vietnam under the terms
of international law.” The tribunal further found that US government
and armed forces’ “deliberate, systematic and large-scale bombardment
of civilian targets, including civilian populations, dwellings, villages, dams,
dikes, medical establishments, leper colonies, schools, churches, pagodas,
historical and cultural monuments” amounted to war crimes.27 In Roskilde,
the tribunal’s findings were similarly damning: the United States was guilty
of using illegal weapons, maltreatment of prisoners of war and civilians,
and genocide.
Russell and Sartre had hoped to arouse anger in the West and galva-
nize opposition to the war. In October, between the tribunal’s two sessions,
100,000 protestors marched on the Pentagon. But how many of them knew
of the tribunal and its vast catalogue of US excesses? Media coverage in the
United States was fleeting and deeply unfavorable, largely indistinguish-
able from official efforts to delegitimize the hearings. As the Stockholm
session drew to a close, the CIA happily reported to President Johnson that
the tribunal “has gone rather badly,” in part due to lack of “good press.”28
Outside the United States, press coverage was greater—negative in Brit-
ain, more positive in France and Italy—but still limited.29 The Roskilde
session attracted even less media attention. “The distressing side of it all,”
lamented de Beauvoir, “was that because of the negligence of the press
there were so few of us to profit from this impressive collection of docu-
ments, evidence, and explanations.”30 Indeed, awareness of the atrocities
visited on Vietnam remained low in the United States where opposition,
when it did grow, centered largely on the balance sheet of American lives.
Still, the tribunal would leave its mark, if not in immediately mobilizing
mass opposition to the war and US imperialism, then in the new practice
of resistance for which it would provide the model. This practice took the
form of a tribunal, placing international law center stage and presenting
its conclusions in terms of the legality of US policies and practices. For
anti-imperialists, this was a strikingly novel form of resistance, one rooted
in law and legality as both the frame of analysis and the grounds for con-
demnation. If, in Kenneth Tynan’s words, the tribunal propagated “a sym-
bolic and demonstrable truth,” that truth was a rather narrow one, that the
United States had violated international law.
Between Law and Politics
Here, then, was a practice of resistance that sought, through a process of

documenting and publicizing violent policies and practices, to mobilize
opposition to systemic injustice. As such, it was an avowedly political body,
as are peoples’ tribunals more generally. Their ultimate goal is not an
impartial, evenhanded analysis of opposing claims but a forceful interven-
tion in international politics. Yet the form that this political practice takes
is that of the tribunal, an institution rooted squarely in the tradition of lib-
eral legalism with its commitment to the ostensibly apolitical application of

formal legal process. This structural antinomy at the heart of the peoples’
tribunal gives rise, in turn, to a fundamental tension between clashing con-
ceptions of juridical and political legitimacy.
For supporters who value juridical legitimacy, peoples’ tribunals are
to be celebrated for their ability to “harness the power and legitimacy of
law.”31 It is their “emphasis on law, international law in particular, and a
deliberative process of evaluation of evidence in the light of law,” Andrew
Byrnes and Gabrielle Simm argue, that sets tribunals apart from mere
“speech at a public rally” or a “political show trial.” For Byrnes and Simm,
the difference between a legitimate process rooted in law and one tarnished
by overt politics “lies in the extent to which the forms and procedure of a
legal proceeding are observed, as well as in the cogency of the analysis and
reasoning that is adopted.”32 Many participants in peoples’ tribunals share
this view. In her recent book on the World Tribunal on Iraq, Ayça Çubukçu
describes how a significant number of organizers of that tribunal insisted
that its legitimacy could only stem from its foundation in law. For these
organizers, law was to be “the sole mother tongue” of the tribunal: “what
was perceived as the self-evident legitimacy of international law would and
could be appropriated by the [Iraq tribunal] through the adoption of its
procedures.” In short, if the tribunal sought legitimacy, it would have to
“base itself in the fabric of international law” and defer to the “expertise
of international lawyers as its competent technicians.” Otherwise, it risked
becoming “a mere political campaign.”33
The value placed on legalism is also shared by critics of peoples’ tribu-
nals, for whom these bodies lack legitimacy precisely because they deviate
from a strict facsimile of legal process. Richard Goldstone, whose 2009 UN
Fact Finding Mission on the Gaza Conflict had identified the commission
of war crimes and possible crimes against humanity during Israel’s “Cast
Lead” operation,34 complained in the New York Times that the Palestine tri-
bunal was in fact “not a ‘tribunal’” at all. “The ‘evidence,’” he complained,
was “one-sided and the members of the ‘jury’ are critics whose harsh views
of Israel are well known.”35 Others echoed criticisms of Russell and Sartre,
dismissing the Palestine tribunal as “political theatre,” its convenors using
“a legal façade to create an image of neutrality and credibility” while really
pursuing their partisan political agenda.36 These supporters and detractors
differ in their evaluation of these institutions’ fidelity to legalism, but both
are agreed on the source of legitimacy.
Other supporters of peoples’ tribunals, however, are happy to present
their projects as openly political. Russell had warned against fetishized
notions of impartiality: of course we’re biased, he happily acknowledged;

how can one know anything about what is going on in Vietnam and not be
biased? Only the wilfully ignorant could be unaware of the suffering of the
Vietnamese people, only the most callous indifferent to it. What of even-
handedness in evaluating the acts of all sides to the conflict? For Sartre,
such a notion rang hollow, the implicit equation of US and Vietnamese
actions nonsensical. “I refuse to place in the same category the actions of
an organization of poor peasants, hunted, obliged to maintain an iron dis-
cipline in their ranks, and those of an immense army backed up by a highly
industrialized country of 200 million inhabitants.”37 Russell was no less
impatient with false equivalences. “Who would compare the 100,000 tons
of napalm with a peasant holding a rifle,” he would soon ask the tribunal.
“Who can fail to distinguish the power which destroys the hospitals and
schools of an entire people from the defenders who attack the aeroplanes
carrying napalm and steel fragmentation bombs?”38 Four decades later,
supporters of the Palestine tribunal would also have no truck with claims
of bias or tortured attempts to draw an equivalence between Israeli aggres-
sion and Palestinians’ desperate acts of resistance.
On this view, then, the motive behind peoples’ tribunals is not an
abstract commitment to legalism and impartiality. While law provides
a useful analytical frame and vocabulary, tribunals’ goals should be ulti-
mately political: to resist and mobilize opposition against US imperialism,
as for Sartre and Russell, or Israeli settler colonialism, as for supporters of
Palestinian liberation. For these activists, then, knowledge and disapproval
of imperial or settler-colonial violence and oppression could not detract
from the legitimacy of a tribunal created to condemn it. For some, like
Arundhati Roy, it is its very source. Speaking at a session of the World Tri-
bunal on Iraq in June 2005, Roy rooted that tribunal’s legitimacy precisely
in its partisan nature:
I would like to briefly address as straightforwardly as I can a few

questions that have been raised about this tribunal. The first is that
this tribunal is a kangaroo court. That it represents only one point of
view. That it is a prosecution without a defense. That the verdict is a
foregone conclusion. . . . Let me say categorically that this tribunal
is the defense. It is an act of resistance in itself.39
For Roy, the tribunal, in giving a voice to the otherwise silenced vic-
tims of US imperialism, was an act of resistance and a small, if impotent,
defence to a prosecution waged not in courtrooms but in the bloody streets
of Baghdad and Fallujah. And yet the Iraq tribunal, no less than the Viet-
nam tribunal before it and the Palestinian tribunal after it, still embraced
the juridical form, its findings framed by international law, its condemna-
tion couched in the language of legality. The United States and United
Kingdom, it concluded, were guilty of “planning, preparing and waging
the supreme crime of a war of aggression in contravention of the United
Nations Charter and the Nuremberg Principles.”40
The point is that these modes of legitimacy—legal and political—are
mutually exclusive. If something is partisan, it cannot appeal to juridical
neutrality, and vice versa. If the purpose of a people’s tribunal is political,
part of a practice of resistance, why adopt the form of a tribunal at all?
What is to be gained by privileging international law and the language of
legality? Alternatively, if it seeks to claim the juridical legitimacy attaching
to the tribunal form and international law, how can it remain political?
International Law and Principled Opportunism
While peoples’ tribunals are marked by this irresolvable tension between the
juridical and political, they must, in practice, make something of a choice.
Concretely, the tension reveals itself—and is temporarily “resolved”—in
how these bodies characterize their relationship to international law. Like
the Iraq tribunal, and later the Palestine tribunal, the Vietnam tribunal had
foregrounded international law and legality as its frame of analysis and
condemnation: the United States was found to have violated international
law, its actions denounced for their illegality. Organizers differed, however,
in their rationales for privileging legalism.
For Russell, international law could serve as the basis against which US
policy and actions were to be judged, but there was no pretence of the tri-
bunal as a formal legal proceeding. As he put it in his opening statement to
the Roskilde session: “We are not judges. We are witnesses. Our task is to
make Mankind bear witness . . . and to unite humanity on the side of justice
in Vietnam.”41 Tariq Ali, who traveled to North Vietnam on a fact-finding
mission for the tribunal and later testified, recalls much the same: it was an
“act of resistance to a war,” the aim “to open the eyes of the world—to say
look, here is the evidence we have brought: study it, see what you think, do
something about it. . . . We were screaming. It was a scream of rage to the
world: look, are you going to do something or not.”42
Sartre, in contrast, was far more concerned that the tribunal should
operate specifically on the terrain of international law. For him, the tribu-
nal’s task was to determine not the moral character of the war—no hear-
ing was necessary to condemn US imperialism—but rather specifically
the legality of US policies and actions. By the time the tribunal met in
Stockholm in May 1967, a split had formed between a Paris-based “Sartre
group” and a London-based “Russell group.”43 The split was in part about
personalities—Dedijer, close to the Parisians, and Schoenman, in London,
were both polarizing figures. But contrasting perspectives on the tribunal’s
goals, and the role of law in those goals, also played its part. Both groups
were equally opposed to US imperialism in Southeast Asia, yet, as Arthur
and Judith Klinghoffer write, the Paris group “stressed international law”
and “focused on procedural matters.”44 The Londoners, however, along
with the American members of the tribunal, looked to a broader horizon
and “wanted to use the tribunal as part of [a] revolutionary agenda.”45 A
commitment to legalism might offer a “salve for European radicals,” but
it was hardly going to end the war. Some, like Julius Lester, who had trav-
eled to North Vietnam and testified in Stockholm, felt that the legalistic
approach that dominated the proceedings had little “practical validity”—
“spotlighting illegalities could not transform political realities.”46 The con-
cern of the tribunal, they felt, should not have been to identify the exis-
tence or otherwise of war crimes but “to prevent the defeat of Vietnam’s
revolution.”47
Sartre, for his part, was not blind to these criticisms. As he explained
already in his Le Nouvel Observateur interview in November 1966, “we have
been reproached with petit bourgeois legalism.” The charge, he conceded,
was not misplaced. “It is true, and I accept that objection.” He, too, was
under no illusions that international law and legality were going to end
the war or imperialism. His use of legalism, he suggested, was tactical, not
principled.
[W]ho are we trying to convince? The classes who are engaged

in the struggle against capitalism and who are already convinced
(crimes or no crimes) that it is necessary to fight to the bitter end
against imperialism? Or that very broad fringe of the middle class
which, at the moment is undecided?
The Vietnamese certainly did not need their struggle framed in legal
terms in order to oppose US aggression, nor others in the Third World
movement fighting against imperialism. Likewise, those in the workers’
movement in Europe and North America were already committed to anti-
imperialist internationalism. Rather, Sartre was adamant, “[i]t is the petit
bourgeois masses which must today be aroused and shaken.” This depo-
liticized segment of society had no existing commitment to anticapital-
ism or anti-imperialism. How might their opposition to the war, then, be
mobilized? “[I]t is by means of legalism,” with its sheen of objectivity and
legitimacy, Sartre insisted, and the seemingly apolitical, objective stan-
dards of international law “that their eyes can be opened,” their opposition
mobilized.48
If political action might be spurred on by international law and its viola-
tion, the goal of that action, Sartre was clear, was not to be found on any
legal terrain. The United States was committing war crimes, even geno-
cide.49 Might the tribunal’s condemnation of such crimes, and the public
outcry many hoped it would provoke, convince the United States to wage a
more humane war? To even pose the question was to miss the point. Asked
whether there is “a way of waging war which is to be condemned, and
another which is not,” Sartre responded with a resounding no. The war,
Sartre insisted, was inseparable from the context in which it was rooted,
namely the “onslaught of American imperialism against the countries of
the Third World which attempt to escape its domination.”50 For Sartre, the
war in Vietnam was an attempt to quash a national liberation struggle, but
also “an example and a warning” to others tempted to resist neocolonial
subsumption—to “all of Latin America . . . and all of the Third World”—
that such struggle “does not pay.” The choice was simple: “submission [to
imperialism] or radical liquidation.”51
We might then see the Vietnam tribunal as an instance of what Robert
Knox has called principled opportunism, the use of international law as
a tool within a wider political strategy. On this approach, law is “not to
be used on its own terms, but rather in furtherance of a strategic goal.”52
Crucially, for both Knox and Sartre, the deployment of international
legal argument and the language of legality should not displace or sup-
plant politics. On this Sartre was clear, his horizon extending well beyond
legal judgment as an end in itself. “It is on the basis of the results of our
inquiry,” he insisted, “that it will be possible to organize demonstrations,
meetings, marches, signature campaigns.” Law was merely a tool in the aid
of a broader political mobilization.
From Vietnam to Palestine
As Vietnam tribunal delegates gathered in Stockholm in May 1967, and

Russell condemned the “arrogant brutality” of the United States and its
“enormous new onslaught against the people of Vietnam,”53 war planners

in Tel Aviv were preparing for their own war of aggression. Arrogance and
brutality were not uniquely American traits: in June, Israel invaded and
occupied East Jerusalem, the West Bank, the Gaza Strip, and the Golan
Heights, continuing its policy of dispossession and ethnic cleansing inau-
gurated with the Nakba of 1948. In 1970, two days before his death, Russell
would write of the “tragedy of the people of Palestine.” “How much lon-
ger,” he asked, “is the world willing to endure this spectacle of wanton cru-
elty?”54 All too long, it is painfully apparent, some seven decades after the
expulsion of the Palestinian people, as an apartheid regime of walls, check-
points, house demolitions, bombings, blockades, targeting killings, and
torture grows ever more brutal, Israeli political leaders ever more brazen.
Already in the 1960s, clear parallels could be drawn between Vietnam
and Palestine. National liberation movements in both, delegates at the
1966 Tricontinental Conference in Havana urged, should be supported in
their resistance against imperialism and colonial oppression. Three years
later, PLO chairman Yasser Arafat praised “the alliance of the Arab and Pal-
estinian national liberation movement with Vietnam” and other liberation
movements in Asia, Africa, and Latin America. While each struggle had its
own peculiarities, all were engaged, Arafat insisted, in the same broader
confrontation with “imperialism, injustice and oppression.”55 Affirming the
affinities between their struggles, Vietnamese general Vo Nguyen Giap
would tell a visiting Palestinian delegation in March 1970: “The Vietnam-
ese and Palestinian people have much in common, just like two people
suffering from the same illness.”56
While Russell wrote and spoke of Palestine with the same passion and
clarity as Vietnam, no similar peoples’ tribunal would engage with the vio-
lence of Israeli settler colonialism in his lifetime. Only in 2009, in the wake
of Israel’s assault on Gaza—“Operation Cast Lead,” in the jargon of Israeli
war planners—would a Russell Tribunal on Palestine be launched. Like
its namesake, the Palestine tribunal gathered a jury of eminent personali-
ties including the Nobel laureate Mairead Maguire, diplomats such as the
French ambassador and one-time resistance fighter Stéphane Hessel, for-
mer government ministers including Ronald Kasrils and Aminata Traoré,
political activists such as Angela Davis, and legal authorities including John
Dugard, Michael Mansfield, and José Antonio Martin Pallin. From 2010 to
2014, the tribunal held sessions in Barcelona, London, Cape Town, New
York, and Brussels.
In Barcelona, the tribunal heard testimony on issues such as the right of
the Palestinian people to self-determination, Israel’s settlements and plun-
dering of natural resources, the annexation of East Jerusalem, the block-

ade of Gaza and Israel’s deadly “Cast Lead” assault the previous year, and
the construction of the infamous Wall in occupied Palestinian territory. Of
particular concern was the complicity of the EU and its member states in
violations of international law, the tribunal emphasizing in its conclusions
the EU’s failure to implement both international and European law.57
In London, the tribunal turned to an examination of the complicity
of multinational corporations in Israel’s violations of international law,
hearing evidence relating to the supply of arms to occupation forces and
bulldozers for the demolition of Palestinian homes, the construction and
maintenance of the Wall, and the provision of financial and other services
to Israeli settlements. Such activities, the tribunal found, rendered the cor-
porations such as G4S and Caterpillar complicit in violations of interna-
tional humanitarian and human rights law.58 Traveling beyond Europe, the
tribunal considered in Cape Town whether Israeli policies and practices
affecting the Palestinian population in Israeli and occupied territory could
be characterized as a regime of apartheid.59 Here it found that Israel does
indeed subject the Palestinian people to a “systematic and institutionalised
regime” of domination “amounting to apartheid as defined under interna-
tional law.”60 With a nod to the historical significance of its location, the
Cape Town meeting also called on “global civil society” to “replicate the
spirit of solidarity that contributed to the end of apartheid in South Africa,
including by making national parliaments aware of the findings of this Tri-
bunal and supporting the campaign for Boycott, Divestment and Sanctions
(BDS).”61
In New York, the tribunal took up the question of US and UN responsi-
bility for Israel’s violations of international law. In its findings, it rehearsed
the long history of US complicity in Israeli oppression, concluding that
Israel’s settler colonial expansion, and the violent policies attendant on it,
would not be possible without the United States’ economic, diplomatic,
and military support. The UN was likewise condemned for its failure to
take proportionate action in the face of Israeli violations.62 At a final session
in Brussels in early 2013, the tribunal’s jury summarized its findings from
each of the four previous sessions, once more mapping the violations of
international law it had attributed to Israel and the responsibility of other
parties—the United States, the UN, the EU, private corporations—in
assisting Israel in those violations.63
The following year, as Israel launched yet another brutal assault on
Gaza, the tribunal assembled again in Brussels for an emergency session.
Once more, in Richard Falk’s words, “the enormity of the devastation and
the spectacle of horror” of Israeli attacks on Gaza was rehearsed, once

more the heart-wrenching testimonies of Palestinians heard.64 Here was
the third major military assault on Gaza in six years, some 700 tons of ordi-
nance deployed over 50 days of a relentless offensive. And once more, the
tribunal was clear: Israeli actions amounted to war crimes, crimes against
humanity, and other violations of international law.65
As with earlier tribunals, organizers of the Palestine tribunal had to
once more grapple with the tension between legal form and political prac-
tice. “We had this tension at every session, at every meeting,” Frank Barat,
one of the tribunal’s coordinators, recalls. To award the lawyers too central
a role would undermine efforts to raise awareness. “If you have ten jurists
talking for two days about international law, you won’t reach the people.”
The “fine line between the tribunal as spectacle and as legal proceeding,”
Barat feels, “was very difficult to navigate.”66 Observing the tribunal’s New
York session, Christopher Federici felt that “the Tribunal appeared con-
flicted by stark contrasts between the desire to project a sense of proce-
dural legality and the inescapable underpinnings of activism that drove the
very desire to organize.”67
Just as the Paris group’s commitment to international law won out as
the organizing principle in the Vietnam tribunal, so too in the Palestine
tribunal was the tension again resolved in favor of legalism. “Quite a lot of
people complained to us that [the tribunal] is just a lawyers’ initiative, that
we have to be an activist initiative,” Barat recalls. Such criticisms are clearly
exaggerated, the hand of political activists unmistakable in the undertaking.
But it is equally apparent that organizers made a choice—tactical, princi-
pled, or otherwise—to privilege international law, illegality, and complicity
with illegality as the tribunal’s guiding concerns. This is clear from the
tribunal’s various published findings, cited above, but also from its official
aim: “to examine the violations of international law, of which the Palestin-
ians are victims, and that prevent the Palestinian People from exercising its
rights to a sovereign State.”68
Put this way, the problem to which the tribunal was responding was
cast as a narrow issue of legality, albeit one with far-reaching consequences.
Barat, writing with Daniel Machover, a legal adviser to the tribunal, expands
on this formulation slightly: the tribunal was also “a response to the failure
of the international community to act appropriately to bring to an end
Israel’s recognized violations of international law.”69 But they too frame the
tribunal’s very raison d’être as a commitment to legality. The Palestine tri-
bunal, they argue, “fulfilled a real legal function by promoting and stimulating
the implementation of the rule of law. It does not compete with other jurisdic-
tions (domestic or international), but works in complementarity with them

to enforce the law in Palestine.”70
None of this is to suggest that the tribunal’s organizers—or Barat and
Machover—were not also concerned with the broader issues of Israeli set-
tler colonialism and Palestinian liberation, or that they were not commit-
ted to extra-legal action. Indeed, it is apparent that many saw the institu-
tion and the invocation of international law and legalism, like Russell and
Sartre, as the means to spur further political mobilization. Still, they made
a concrete choice, tactical or otherwise, to use and privilege the language
of law and legality, and the juridical form of the tribunal, as those means
to frame Israel’s aggression in Gaza, and the dispossession and oppression
of the Palestinians more generally, as foremost a spectacular violation of
international law, and one to be opposed as such.
From Principled Opportunism to Legalism
How does the choice to privilege law and legalism, albeit in the service of
a political intervention, compare with that made by Russell, Sartre, and
other organizers of the Vietnam tribunal? At first blush, there is little dif-
ference between the two. Organizers in both instances were confronted
with the tension between law and politics central to the very nature of
peoples’ tribunals. Both chose to frame and analyze instances of injustice
and oppression—US imperialism and its manifestation in Vietnam; Israeli
settler colonialism and its continuing violence in Palestine—specifically in
terms of international law. And both chose to use the juridical form and
procedures of the tribunal to publicize and condemn it: US policy and
actions in Vietnam violated international law, likewise Israeli policy and
actions in Palestine.
Still, if the calculus was fundamentally the same, the two tribunals dif-
fered in important respects. The Vietnam tribunal gave little suggestion it
was committed to international law qua international law or to legalism
as the answer to, or in and of itself the means to end, imperialist aggres-
sion. Indeed, its organizers were openly skeptical about the emancipatory
potential of international law. As Sartre put it, imperialism “is beyond the
reach of any legal or moral condemnation.”71 Determining that the United
States was violating international law or even stopping its violations would
not affect the systemic logic of imperialism undergirding those violations:
a legal imperialist war is still an imperialist war. That would take something
else, Sartre insisted: “The only thing possible is to combat it; intellectually
by revealing its inner mechanism, politically by attempting to disengage

oneself from it . . . or by armed struggle.”72
If such skepticism about the power of international law was shared by
the Palestine tribunal’s organizers, they were not nearly as forthright in
their public statements. In fact, in sharp contrast, the later tribunal went
so far as to insist on “the supremacy of international law as the basis for a
solution to the Israeli Palestinian conflict.”73 More generally, international
law and the question of legality or illegality became the central motif and
discourse of the Palestine tribunal to a degree never reached by its ear-
lier counterpart. While it heard from witnesses and experts who spoke to
extra-legal issues, including the systemic issues of settler colonialism and
imperialism, the tribunal’s published textual record is far narrower. Israel’s
settlements are deemed illegal; likewise its annexation of East Jerusalem.
War crimes are identified in Israel’s Cast Lead assault on Gaza. Multi-
national corporations are condemned for complicity in Israel’s violations
of international law. But there the analysis ends. Such crimes and other
unlawful acts, including the United States or multinational corporations’
complicity in those crimes and acts, are abstracted from their context and
the structural logics that produce those acts and complicity—settler colo-
nialism, imperialism, capitalism. Again, this is not to suggest that the tribu-
nal’s participants were indifferent to these deeper issues. But the tribunal
made a concrete decision to frame its findings squarely in terms of inter-
national legal conclusions. This is in sharp contrast with the Vietnam tri-
bunal’s published conclusions. Take, for example, its “verdict” on whether
the US government was guilty of genocide against the people of Vietnam.
The answer was a unanimous yes, but the tribunal sought to go beyond a
formal legal condemnation, setting out an historical and political analysis
of the US war against Vietnam and how this genocide “arises within the
framework of the general policy of imperialism.”74
One can speculate as to why the Palestine tribunal chose to take a more
legalistic approach than its predecessor, framing its concern narrowly as
Israel’s violation of international law and its stated goal, likewise narrowly,
to hold Israel accountable and ensure compliance with the law. But an
undoubtedly significant factor was the new conjuncture in which the tribu-
nal took shape, one which differed markedly from an earlier era. In 1967,
a peoples’ tribunal evaluating and applying international law was entirely
novel. Yet the tactical deployment of international legal argument in aid of
a broader practice of resistance against imperialism was not out of place
in the 1960s, at the height of the Third World movement and anticolonial
internationalism. Already at Bandung, in 1955, newly independent states
had sought to use and expand the scope of legal concepts such as sover-
eignty and self-determination to challenge the imperial status quo.75 Impe-
rialism and colonialism were, to be sure, in Antony Anghie’s words, “central
to the constitution of international law,” the latter structurally connected
with relations of exploitation and domination.76 Still, in the 1960s and early
1970s, many Third World jurists felt that, despite the legacy of colonialism
in international law, the latter could be used to advance an anti-imperial
agenda. The growing numerical advantage of newly independent states in
institutions such as the UN General Assembly could provide such an open-
ing. In 1960, for instance, Third World states, aided by the Eastern bloc,
were able to pass UNGA Resolution 1514, Declaration on the Granting
of Independence to Colonial Countries and Peoples, calling for an imme-
diate end to colonialism and advancing an expansive conception of self-
determination.77 Anticolonial delegates to international legal conferences
drew on principles of anti-imperialism and self-determination to argue for,
and articulate, legal distinctions between wars of national liberation and
wars of “imperialist aggression,” seeking to legitimize anticolonial struggles
aimed at establishing an international order free of imperial domination.78
Crucially, however, such appropriations of international law, and principles
such as that of self-determination, were embedded within a broader cri-
tique of, and struggle against, imperialism, functioning, as Adom Getachew
shows, as merely the “juridical component” of a political project of “inter-
national nondomination.”79
Within this constellation of forces, Russell and Sartre’s calculation was
understandable. With the Third World movement ascendant and a strong
workers’ movement in the North Atlantic metropoles, one could appeal
to a depoliticized “middle class” on the basis of legality and hope to solicit
solidarity for an anti-imperial politics from those with no prior principled
commitment to anti-imperialism. Yet that calculation began to look rather
different by the 1980s with the defeat of many anti-imperialist struggles,
the collapse of the Third World movement, and the decline of the workers’
movement, the latter’s commitment to a radical internationalism giving way
to more parochial concerns. Little remained of the mass anti-imperialist
movements of the 1960s and early 1970s uniting and mobilizing activists
and revolutionary masses in metropolitan core and periphery alike—those
who, in Sartre’s words, “are already convinced (crimes or no crimes) that it
is necessary to fight to the bitter end against imperialism.” Political mobili-
zation increasingly depended on appeals to the depoliticized masses of late
capitalist society made, as prefigured by Sartre and the Vietnam tribunal,
in the language of legality and international law. But such appeals were
now divorced from any mass anti-imperial movement: legality increasingly

became itself the horizon of political resistance. By the turn of the century,
the language of international law—and in particular of human rights—had
displaced anti-imperialism, so long a mainstay of political vernacular in the
twentieth century, as the primary emancipatory framework in the imagina-
tion of internationalism.
As Vietnamese peasants died at the hands of US imperialism, antiwar
protestors in the United States and Europe expressed their moral and stra-
tegic opposition to the war, denouncing it as immoral and imperialist, but
rarely sought to characterize that opposition in terms of the war’s legality
or the criminal liability of American leaders and strategic planners. This
was precisely the novelty of the Russell Tribunal. Lawyers, of course, had
foregrounded international law—most notably Richard Falk—but it was
not the vernacular of the popular antiwar movement.80 In contrast, as the
United States prepared to invade Iraq in 2003, legality and international
law were quickly cemented as the dominant frame configuring public
debate about the war, especially within the antiwar movement.81 During
both the lead-up and aftermath of the invasion, much popular opposition
to the war was framed in the language of legal argument—the war was an
illegal use of force—including the language of international criminal law—
the war was the work of war criminals and, as such, George Bush and Tony
Blair should be tried in The Hague. The “illegality” of the war, in short,
became, as Knox shows, “one of the central pillars of the campaign against
the war.” This juridification of opposition was reflected, as already noted,
in the proceedings of the World Tribunal on Iraq, which proclaimed that
“[t]he invasion and occupation of Iraq was and is illegal.”82 International
law, deployed tactically by Sartre and the Vietnam tribunal to stir anti-
war sentiment among an apolitical middle class, had become an organizing
principle for antiwar activists, the politics of anti-imperial resistance now
subsumed within this depoliticized vernacular.
Within this new conjuncture, it is perhaps entirely unsurprising that
the Palestine solidarity activists should have turned to the tribunal form
and embraced international law as the organizing principle and framework
for their intervention. An anticolonial and anti-imperial politics of national
liberation, although very much still alive in Palestine, no longer resonates
globally as it once did. Moreover, the embrace of legalism by opponents of
the US invasion of Iraq appeared to offer an example of law put to great
effect in mobilizing resistance. “Even though the Iraq war ultimately went
ahead,” Knox writes, “the anti-war movement’s message managed to mobil-
ise millions of people, delegitimised the war and damned a number of the
governments and politicians associated with it.”83 While going on to chart

the pitfalls of the movement’s embrace of legalism, of which he is highly
critical, Knox, like Sartre, nonetheless notes the power of international
legal argument in raising antiwar sentiment beyond traditional radical and
antiwar political constituencies. The language of illegality was the glue that
held together a diverse coalition drawn from a “range of demographics
(age, class and education) and political constituencies.”84 With its aura of
objectivity and legitimacy, law could unite a diverse coalition without the
need for a deeper political critique.
What of Palestine? Might the language of international law and legality
also help mobilize opposition to the injustices of Israeli settler colonialism?
It is difficult to judge the success of the Palestine tribunal; how should suc-
cess even be measured? While the tribunal’s Cape Town session attracted
significant attention in South African media, the same cannot be said of
the tribunal or international media more widely.85 No doubt some observ-
ers, exposed to the tribunal’s legal arguments and conclusions for the first
time, saw their opposition to Israeli policy harden. Certainly, support for
the Palestinian cause extends beyond radical political constituencies and
the mobilization of international legal arguments through fora such as the
Palestine tribunal no doubt plays a role. At the same time, however, the
tension between legal form and political practice at the center of peoples’
tribunals remains. One cannot simply pick and choose; legalism comes
with a cost.
Hilary Charlesworth has written of international law’s tendency to focus
attention on particular incidents and outbreaks of violence without ever
systematically engaging with underlying structural forces. Legal analysis,
she suggests, “concentrate[s] on a single event or series of events,” but in
doing so “miss[es] the larger picture.”86 In focusing on Israeli policies and
practices as foremost an issue of illegality, the Palestine tribunal’s published
record reproduces this narrow analytical frame and risks obscuring or even
foreclosing a deeper inquiry into the conditions and political-economic
forces that lie behind, and provide the context for, unlawful acts. At its
Cape Town session, for example, the tribunal considered carefully the defi-
nition of apartheid in international law and interpretation of the 1973 UN
Convention on the Suppression and Punishment of the Crime of Apart-
heid. Its conclusions offer a careful legal analysis of the Convention and its
application to Israeli policies and practices vis-à-vis the Palestinian people
and leave little doubt that “Israel subjects the Palestinian people to an
institutionalised regime of domination amounting to apartheid as defined
under international law.”87 Why does an apartheid regime exist in Pales-
tine? The tribunal’s conclusions offer no insights. For anyone reading the
tribunal’s published conclusions, the settler-colonial, imperialist, political-
economic, or other drivers of Israeli apartheid disappear from view. Israeli
apartheid is a crime without cause or context.88 Of course, the tribunal was
seeking to generate headlines, not undertake a nuanced scholarly analysis.
But that is precisely the point. The headlines and attendant public aware-
ness the tribunal sought to generate were headlines and awareness about
the illegality of Israeli policy: that Israel is guilty, for example, of the crime
of apartheid. By focusing the debate on questions of law and legality, and
specific instances of illegality— apartheid, occupation, war crimes— the
resulting discourse deflects attention from, or even risks erasing, Israel as
a colonial project.89
If the tribunal’s findings were constrained by its focus on international
law, what consequences followed from its identification of legal violations?
Insofar as its case against Israeli practices and policies rested on interna-
tional law, the Palestine tribunal foregrounded further international legal
engagements as the desirable, even necessary, concomitant to its findings
of illegality. In London, having heard evidence of “corporate complicity”
in Israeli violations of international law, the tribunal advocated for actions
to be brought before domestic courts to hold corporations liable under
civil or criminal law, urging states to ensure there are “sufficient remedies
available.”90 The tribunal’s findings, its organizers observed, were “likely
to form . . . the basis of legal advocacy for years to come.”91 In its Cape
Town findings, the tribunal urged the prosecutor of the ICC to “initiate an
investigation . . . into international crimes,” while the UN General Assem-
bly should request an advisory opinion from the ICJ on the occupation
and apartheid. If international law provides the framework for identifying
the problem, it also necessarily provides the solution. A single recommen-
dation was directed at “global civil society,” which was urged to support
the campaign for Boycott, Divestment and Sanctions (BDS).92 Barat and
Machover argue that the tribunal was indeed interested “in empowering
civil society and reinforcing the work of already existing campaigns.” How
would it do so? “[B]y providing additional legal arguments and ideas that
will assist in future litigation and legal lobbying.”93
Juridification and Resistance
Reviewing the Palestine tribunal and its published record, one is presented
with a claustrophobic view of political possibility, further international
legal interventions the horizon of the political imagination. Israel com-

mits atrocities in Palestine? ICC investigation is the answer, the tribunal
proclaims. That court’s history of selective and highly politicized interven-
tions, reproducing one-sided narratives of complex conflicts and demon-
izing some perpetrators while legitimating imperial military interventions,
should give any anti-imperialist pause. Far from ending the impunity long
enjoyed by Western states and political leaders, the ICC has helped to insti-
tutionalize it.94 More generally, by prescribing further legal engagements
as the appropriate response to Israeli domination and Palestinian suffering,
the Palestine tribunal’s approach risks reproducing the tendency, noted by
Noura Erakat, to “attribute injustice to a failure of law or to its nonexis-
tence and thus prescribe more law, better law, and/or stricter adherence
to law as the requisite corrective.”95 As we have seen, the tribunal framed
Palestinian suffering as foremost a failure to enforce international law. If
only that law were enforced adequately and Israel’s international legal vio-
lations ended, the tribunal implied, all would be well. Yet as scholars such
as Nicola Perugini and Neve Gordon show, there is no inherent opposition
between international law and domination, the former often mobilized in
support of the latter, including in Palestine.96
Importantly, I am not suggesting that the organizers of the Palestine
tribunal were necessarily blind to this. Many of the activists involved would
no doubt recognize international law as itself part of the problem, deeply
implicated in the production and reproduction of injustice and domina-
tion, in Palestine as elsewhere. And the tribunal’s support for a political
campaign of BDS is significant. Nonetheless, the channeling of political
resistance primarily into legal avenues follows logically from the choice
to foreground law and legalism as the frame of analysis and condemnation
and, ultimately, as the privileged language of resistance.
This is the dilemma of all peoples’ tribunals, I have suggested, caught
between juridical form and political practice. If the purpose of a peoples’
tribunal is political, I asked above, what is to be gained by privileging law
and the language of legality? Organizers of both the Vietnam tribunal and
Palestine tribunal, I argued, believed that law could be deployed tactically
so as to mobilize political opposition to systematic injustice and oppression
within constituencies not already committed to this cause. But in seeking
to claim the juridical legitimacy attaching to the tribunal form and legal-
ism, I also pondered, how can they remain political? In this chapter, I have
argued that however one chooses to resolve these competing concerns,
there are costs associated with that choice. I have focused my critique
on the Palestine tribunal, but the Vietnam tribunal faced the same bind.
Where that tribunal differed was in the political context in which it oper-
ated. While embracing legalism, it operated squarely within the param-
eters of the global anticapitalist movement with a committed politics of
anti-imperialism. Whether or not its efforts to frame US imperialism as a
violation of international law were successful, there was little chance of that
politics being subsumed by legalism. That calculus, I have suggested, looks
very different today, imperialism and its settler-colonial outposts trium-
phant and workers’ and national liberation movements in tatters. If inter-
national politics has become increasingly juridified, so too has political
resistance, the depoliticized language of international law displacing other
emancipatory frameworks in the political imagination of internationalism.
Peoples’ tribunals, I fear, do not merely reflect but also contribute to this
shift.
NOTES
I am grateful to Teresa Almeida Cravo, Robert Knox, Brian Cuddy, and Victor Kat-
tan for comments on an earlier version of this chapter.
1. Bertrand Russell, “Opening Statement at the International War Crimes Tri-
bunal,” World Outlook, May 12, 1967, 482. Due to frail health, Russell was unable
to attend the tribunal in person. Instead this statement was read at the opening of
the tribunal’s first session in Stockholm on May 2, 1967, by his secretary, Ralph
Schoenman.
2. Bertrand Russell, The Autobiography of Bertrand Russell, 1944–1969 (New
York: Simon & Schuster, 1969), 242.
3. Bertrand Russell, “Appeal to American Conscience,” in War Crimes in Viet-
nam (London: Allen & Unwin, 1967), 116.
4. In mid-1966, some 60 percent of Americans favored escalation of the war.
William C. Gibbons, The United States Government and the Vietnam War: Executive
and Legislative Roles and Relationships, Part IV: July 1965–January 1968 (Princeton:
Princeton University Press, 1995), 430–31.
5. Russell, “Opening Statement.”
6. US News and World Report, February 15, 1965, quoted in Leon Matarasso,
“Outline of the General Introductory Report,” in Prevent the Crime of Silence:
Reports from the Sessions of the International War Crimes Tribunal founded by Bertrand
Russell, ed. Peter Limqueco and Peter Weiss (London: Allen Lane, 1971), 76.
7. On peoples’ tribunals generally, see Andrew Byrnes and Gabrille Simm, eds.,
Peoples’ Tribunals and International Law (Cambridge: Cambridge University Press,
2018); Dianne Otto, “Beyond Legal Justice: Some Personal Reflections on People’s
Tribunals, Listening and Responsibility,” London Review of International Law 5, no. 2
(2017).
8. Lieven De Cauter, “For a Justice to Come: An Interview with Jacques Der-
rida,” last modified April 5, 2004, http://archive.indymedia.be/news/2004/04/831
23.html
9. Luís Moita, “Opinion Tribunals and the Permanent People’s Tribunal,”

JANUS.NET, e-journal of International Relations 6, no. 1 (2015): 41.
10. I borrow the term from Robert Knox. See Robert Knox, “Marxism, Inter-
national Law, and Political Strategy,” Leiden Journal of International Law 22, no. 3
(2009) and Robert Knox “Strategy and Tactics,” Finnish Yearbook of International Law
21 (2010).
11. Bertrand Russell, “Speech to the First Meeting of the War Crimes Tribunal,
London, 13 November 1966,” in Prevent the Crime of Silence: Reports from the Ses-
sions of the International War Crimes Tribunal founded by Bertrand Russell, ed. Peter
Limqueco and Peter Weiss (London: Allen Lane, 1971).
12. Bertrand Russell, Letter to Johnson, August 25, 1966, cited in Harish C.
Mehta, “North Vietnam’s Informal Diplomacy with Bertrand Russell: Peace Activ-
ism and the International War Crimes Tribunal,” Peace & Change 37, no. 1 (2012):
78–79.
13. Tom Wells, The War Within: America’s Battle over Vietnam (Berkeley: Univer-
sity of California Press, 1994), 142.
14. Gibbons, United States Government, 433.
15. Memorandum for the President from Ball, August 29, 1966, quoted in Gib-
bons, United States Government, 434.
16. Wells, War Within, 142; Luke J. Stewart, “Too Loud to Rise above the
Silence: The United States vs. the International War Crimes Tribunal, 1966–1967,”
The Sixties: A Journal of History, Politics and Culture 11, no. 1 (2018): 3–4.
17. Bernard Levin, “Bertrand Russell: Prosecutor, Judge and Jury,” New York
Times, February 19, 1967, VI.24.
18. Mehta, “Informal Diplomacy,” 82.
19. Russell, “Speech to the First Meeting.”
20. Jean-Paul Sartre, “Le crime,” Le Nouvel observateur, November 30, 1966,
reprinted in translation as “Imperialist Morality: Interview with Jean Paul Sartre
on the War Crimes Tribunal,” New Left Review I/41 (1967), 3.
21. “Text of de Gaulle’s Letter Banning War Crimes Tribunal,” World Outlook,
May 12, 1967, 483.
22. “Sartre à de Gaulle,” Le Nouvel observateur, April 26, 1967, reprinted in trans-
lation as “Jean-Paul Sartre’s Answer to de Gaulle,” World Outlook, May 12, 1967,
484.
23. Stewart, “Too Loud,” 10.
25. Kenneth Tynan, “Open Letter to an American Liberal,” Playboy, March
1968, 137. Many of the reports and testimonies presented at both sessions of the
tribunal are collected in John Duffett, ed., Against the Crime of Silence: Proceedings
of the Russell International War Crimes Tribunal (New York: O’Hare, 1968) and Peter
Limqueco and Peter Weiss, eds., Prevent the Crime of Silence: Reports from the Sessions
of the International War Crimes Tribunal Founded by Bertrand Russell (London: Allen
Lane, 1971).
26. Limqueco and Weiss, Prevent the Crime of Silence, 143.
27. Jean-Paul Sartre, “Summary and Verdict of the Stockholm Session,” in Pre-
vent the Crime of Silence: Reports from the Sessions of the International War Crimes
Tribunal founded by Bertrand Russell, ed. Peter Limqueco and Peter Weiss (London:
Allen Lane, 1971).

29. See Page Arthur, Unfinished Projects: Decolonization and the Philosophy of Jean-
Paul Sartre (London: Verso 2010), 164–66.
30. Quoted in Arthur J. Klinghoffer and Judith A. Klinghoffer, International
Citizens’ Tribunals: Mobilizing Public Opinion to Advance Human Rights (Basingstoke:
Palgrave Macmillan, 2002), 157.
31. Sally Engle Merry, “Resistance and the Cultural Power of Law,” Law & Soci-
ety Review 29, no. 1 (1995): 21.
32. Andrew Byrnes and Gabrielle Simm, “International Peoples’ Tribunals:
Their Nature, Practice and Significance,” in Peoples’ Tribunals and International Law,
ed. Andrew Byrnes and Gabrielle Simm (Cambridge: Cambridge University Press,
2018), 13.
33. Ayça Çubukçu, For the Love of Humanity: The World Tribunal on Iraq (Phila-
delphia: University of Pennsylvania Press, 2018), 22.
34. See UN Human Rights Council, “Human Rights in Palestine and Other
Occupied Arab Territories: Report of the United Nations Fact Finding Mission on
the Gaza Conflict,” A/HRC/12/48, September 15, 2009.
35. Richard J. Goldstone, “Israel and the Apartheid Slander,” New York Times,
October 31, 2011, A27.
36. “Russell Tribunal on Palestine,” NGO Monitor, last modified October 3,
2012, https://www.ngo-monitor.org/ngos/russell_tribunal_on_palestine/
37. Sartre, “Imperialist Morality,” 7.
38. Bertrand Russell, “Closing Address to the Stockholm Session,” in Prevent
the Crime of Silence: Reports from the Sessions of the International War Crimes Tribunal
Founded by Bertrand Russell, ed. Peter Limqueco and Peter Weiss (London: Allen
Lane, 1971), 188.
39. Quoted in Çubukçu, Love of Humanity, 1.
40. Jury of Conscience, “Declaration of Jury of Conscience World Tribunal on
Iraq: Istanbul 23–27 June 2005,” Feminist Review 81 (2005): 97.
41. Quoted in Noam Chomsky, “Foreword,” in Prevent the Crime of Silence:
Reports from the Sessions of the International War Crimes Tribunal Founded by Bertrand
Russell, ed. Peter Limqueco and Peter Weiss (London: Allen Lane, 1971), 9.
42. Tor Krever, “50 Years after Russell: An Interview with Tariq Ali,” London
Review of International Law 5, no. 3 (2017): 499. Ali has also written of his involve-
ment with the tribunal in Tariq Ali, Street Fighting Years: An Autobiography of the Six-
ties (London: Verso, 2005). His testimony before the tribunal is transcribed in Tariq
Ali, “Report from Cambodia and North Vietnam,” in Prevent the Crime of Silence:
Reports from the Sessions of the International War Crimes Tribunal Founded by Bertrand
Russell, ed. Peter Limqueco and Peter Weiss (London: Allen Lane, 1971).
43. Klinghoffer and Klinghoffer, International Citizens’ Tribunals, 129.
49. See Jean-Paul Sartre, “Genocide,” New Left Review I/48 (1968).
51. Sartre, “Genocide,” 19.
52. Knox, “Strategy and Tactics,” 227.

53. Russell, “Opening Statement.”
54. Quoted in Samih K. Farsoun and Naseer H. Aruri, Palestine and the Palestin-
ians, 2nd ed. (New York: Routledge, 2018), 302.
55. Quoted in Paul Chamberlin, The Global Offensive: The United States, the Pal-
estine Liberation Organization, and the Making of the Post-Cold War Order (Oxford:
Oxford University Press, 2012), 22.
56. Quoted in Paul Chamberlin, “The Struggle Against Oppression Every-
where: The Global Politics of Palestinian Liberation,” Middle Eastern Studies 47,
no. 1 (2011): 25. The delegation included Arafat and his deputy, Salah Khalaf.
57. Russell Tribunal on Palestine, “Conclusions of the First International Ses-
sion of the Russell Tribunal on Palestine,” accessed May 10, 2020, http://www.ru
sselltribunalonpalestine.com/en/wp-content/uploads/2010/08/CONCLUSIONS
-TRP-FINAL-EN-last.pdf
58. Russell Tribunal on Palestine, “Findings of the London Session,” accessed
May 10, 2020, http://www.russelltribunalonpalestine.com/en/wp-content/uploa
ds/2011/01/RTOP-London-Session-Findings.pdf. See also Asa Winstanley and
Frank Barat, ed., Corporate Complicity in Israel’s Occupation (London: Pluto Press,
2011).
59. See Barbara Harlow, “Apartheid or Not Apartheid? The Russell Tribunal on
Palestine, South Africa Session, November 2011,” Law, Culture and the Humanities
9 (2013).
60. Russell Tribunal on Palestine, “Findings of the South Africa Session,”
accessed May 10, 2020, http://www.russelltribunalonpalestine.com/en/wp-content
/uploads/2011/11/RToP-Cape-Town-full-findings3.pdf, 20–21.
61. Russell Tribunal on Palestine, “Findings of the South Africa Session,” 20–21.
62. Russell Tribunal on Palestine, “Findings of the Fourth International Ses-
sion,” accessed May 10, 2020, http://www.russelltribunalonpalestine.com/en/sessio
ns/future-sessions/new-york-session-full-findings.html
63. Russell Tribunal on Palestine, “Findings of the Final Session of the Russell
Tribunal on Palestine,” accessed May 10, 2020, http://www.russelltribunalonpalest
ine.com/en/full-findings-of-the-final-session-en.html
64. Richard Falk, “Is Israel Guilty of Genocide in Its Assault on Gaza?” The
Nation, October 6, 2014, https://www.thenation.com/article/archive/israel-guilty
-genocide-its-assault-gaza/
65. Russell Tribunal on Palestine, “Extraordinary Session on Gaza: Summary of
Findings,” accessed May 10, 2020, http://www.russelltribunalonpalestine.com/en
/sessions/extraordinary-session-brussels/findings.html
66. Frank Barat, Interview with author, June 23, 2020.
67. Christopher Federici, “Russell Tribunal on Palestine in New York: On US,
UN Complicity,” Palestine Chronicle, October 12, 2012, https://www.palestinechron
icle.com/russell-tribunal-on-palestine-in-new-york-on-us-un-complicity/
68. Russell Tribunal on Palestine, “About,” accessed May 10, 2020, https://www
.russelltribunalonpalestine.com/en/about-rtop.html
69. Frank Barat and Daniel Machover, “The Russell Tribunal on Palestine,” in Is
There a Court for Gaza? A Test Bench for International Justice, ed. Chantal Meloni and
Gianni Tognoni (The Hague: T.M.C. Asser Press, 2012), 528.
70. Barat and Machover, 531 (emphasis added).

73. Russell Tribunal on Palestine, “About.”
74. Sartre, “Genocide,” 19.
75. Luis Eslava, Michael Fakhri, and Vasuki Nesiah, “The Spirit of Bandung,” in
Bandung, Global History, and International Law, ed. Luis Eslava, Michael Fakhri, and
Vasuki Nesiah (Cambridge: Cambridge University Press, 2017), 6.
76. Antony Anghie, Imperialism, Sovereignty, and the Making of International
Law (Cambridge: Cambridge University Press, 2004), 3. See also China Miéville,
Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill, 2005).
77. UN General Assembly Resolution 1514 (XV), “Declaration on the Granting
of Independence to Colonial Countries and Peoples,” A/RES/1514/XV, December
14, 1960. See Victor Kattan, “Self-Determination as Ideology: The Cold War, the
End of Empire, and the Making of UN General Assembly Resolution 1514 (14
December 1960),” in International Law and Time: Narratives and Techniques, ed. Luca
Pasquet and Klara van der Ploeg (Springer, 2023).
78. See Jessica Whyte, “The ‘Dangerous Concept of the Just War’: Decoloni-
zation, Wars of National Liberation, and the Additional Protocols to the Geneva
Conventions,” Humanity 9, no. 3 (2018).
79. Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-
Determination (Princeton: Princeton University Press, 2019), 74.
80. See, e.g., Richard Falk, “International Law and the United States Role in
the Viet Nam War,” Yale Law Journal 75 (1966); Lawyers Committee on Ameri-
can Policy Towards Vietnam, Vietnam and International Law: The Illegality of United
States Military Involvement (Flanders: O’Hare Books, 1967); Richard Falk, Revisiting
the Vietnam War and International Law (Cambridge: Cambridge University Press,
2017).
81. Robert Knox, “International Law, Politics and Opposition to the Iraq War,”
London Review of International Law 8, no. 3 (forthcoming). See also China Miéville,
“Multilateralism as Terror: International Law, Haiti and Imperialism,” Finnish Year-
book of International Law 19 (2008).
82. Jury of Conscience, “Declaration,” 96.
83. Knox, “Iraq War.”
84. Knox, “Iraq War.”
85. Victor Kattan, “The Russell Tribunal on Palestine and the Question of
Apartheid,” alshabaka, November 23, 2011, https://al-shabaka.org/briefs/russell-tri
bunal-palestine-and-question-apartheid/
86. Hilary Charlesworth, “International Law: A Discipline of Crisis,” Modern
Law Review 65 (2002): 377. I have written about this elsewhere in the context of
international criminal law. See Tor Krever, “International Criminal Law: An Ideol-
ogy Critique,” Leiden Journal of International Law 26 (2013); Tor Krever, “Ending
Impunity? Eliding Political Economy in International Criminal Law,” in Research
Handbook on Political Economy and Law, ed. Ugo Mattei and John D. Haskell (Chel-
tenham: Edward Elgar, 2015). Knox makes much the same argument: Knox, “Iraq
War.”
87. Russell Tribunal on Palestine, “South Africa Session,” 21.
88. More recently, Amnesty International, Human Rights Watch, B’Tselem, and
the UN Special Rapporteur on human rights in Occupied Palestine have all issued
reports concluding Israel’s is an apartheid regime. The same criticism can be made
of these reports’ narrow focus on a legal conception of apartheid at the expense of
an engagement with settler colonialism as the structure behind Israeli apartheid—
and indeed has been made, at least of the Amnesty report, by commentators such as
Lana Tatour and Nihal El Aasar. See Lana Tatour, “Amnesty Report: The Limits of
the Apartheid Framework,” Middle East Eye, February 8, 2022, https://www.middl
eeasteye.net/opinion/israel-amnesty-apartheid-report-limits-framework; Nihal El
Aasar, “Why Won’t Amnesty Say ‘Colonialism’?” Novara Media, February 8, 2022,
https://novaramedia.com/2022/02/08/why-wont-amnesty-say-colonialism/
89. In fairness, in New York, the tribunal did in fact write of Israel’s “settler-
colonial expansion,” while in Brussels it went so far as to declare that Palestinians
are “clearly the victim of colonialism.” But here again the characterization of Israeli
actions as colonial served merely to affirm the unlawfulness of those actions, the
tribunal emphasizing “the illegal and criminal nature of colonialism” in “denying a
people their right to self-determination.” Russell Tribunal on Palestine, “Final Ses-
sion.”
90. Russell Tribunal on Palestine, “London Session,” 52–54.
91. Barat and Machover, “Russell Tribunal,” 538.
92. Russell Tribunal on Palestine, “South Africa Session,” 35.
93. Barat and Machover, “Russell Tribunal,” 531.
94. Tor Krever, “Dispensing Global Justice,” New Left Review 85 (2014).
95. Noura Erakat, Justice For Some: Law and the Question of Palestine (Stanford:
96. Nicola Perugini and Neve Gordon, The Human Right to Dominate (Oxford:
Oxford University Press, 2015).
TEN
War and the Shaping

of International Law
From the Cold War to the War on Terror
The Distinctiveness of the Wars in Vietnam and the Middle East
Drafted at the conclusion of two world wars involving direct clashes

between the great powers, the Charter of the United Nations sought to
save succeeding generations from the scourge of war and to discourage
states from threatening or using force against the territorial integrity
or political independence of any state.1 The UN Charter lists only two
exceptions to the prohibition on the use of armed force in international
affairs: when force is authorized by the UN Security Council to maintain
or restore international peace and security and when states, acting indi-
vidually or collectively in self-defense, resort to force in response to an
armed attack against their territory or military personnel.2 As Richard Falk
explained in his foreword to this volume, the UN Charter encapsulated a
“war-prevention rationale” that emerged out of the carnage of the Second
World War and the perceived interests of the victors in peace. It sought to
prevent a Third World War.
Yet as soon as the ink on the text of the UN Charter had run dry, the
world was divided into competing blocs, and its security architecture never
functioned as envisaged. The atomic bombings of the Japanese cities of
261
Hiroshima and Nagasaki came in the wake of the adoption of the UN Char-
ter in 1945. This was followed by the Korean War, the Suez Crisis, the wars
of decolonization in Africa and Asia, the Yugoslav wars, the 9/11 attacks and
the subsequent “war on terrorism,” and most recently the war in Ukraine,
which all implicated the United States and its allies.3 While macro-level
“peace” was still desirable for these status-quo powers, armed force became
an increasingly attractive tool in situations short of direct great-power war.
So why, given all these wars, do we focus on just two? Why should we
care about the Vietnam War, which is now history, and the conflicts between
Israel, the Palestinians, and the wider Arab world, which could become his-
tory? How do these conflicts differ to the multitude of other armed con-
flicts that have occurred elsewhere in the world since the adoption of the
UN Charter? In our view, these wars are worth studying because they have
been particularly significant in shaping, and in the attempted remaking of,
international law from 1945 to the present day. And they have achieved this
significance in large part because of their impact on the politics and culture
of the world’s most powerful nation, the United States of America.
The Vietnam War and the Arab-Israeli conflicts are distinctive in the
history of international law because of how they changed American society
due to their length, their intensity, and the passions they provoked in the
popular media, on university campuses, and on the street. The Vietnam
War and the multiple Arab-Israeli conflicts became cultural moments that
captured the public imagination in ways few other conflicts did, even those
that were more lethal. They also had an oversized impact on public policy
not only in North America but also in Europe and Australia. They trans-
formed the ways in which governments speak about war and how they jus-
tify them. This can be assessed not only through studies of popular media,
film, and literature but also in the number of references to these two con-
flicts in policy statements, political speeches, government publications, and
references to scholarly publications on the law of war as demonstrated in
the contributions to this volume.
Before we look at some of these documents and how the relationship
between the United States and Israel was forged through fighting common
enemies, let us begin by taking a closer look at American popular culture.
American Popular Culture
The influence of the Vietnam War and the Arab-Israeli conflicts on shap-
ing the law of war was due to several factors, but a significant one that
War and the Shaping of International Law 263
is seldom mentioned is the impact of the English-language international

media, cinema, and other forms of popular culture, which all shape the
views of policymakers and the wars they fight. In her groundbreaking study
of the special relationship forged between the United States and Israel
since the Second World War, Amy Kaplan examined news media, fiction,
and film to explain how, in the aftermath of the Six-Day War of June 1967,
“many Americans romanticized Israel’s way of making war as a humane and
muscular alternative to the American approach, which had led to the quag-
mire in Vietnam.”4 She made the striking observation that: “The Israeli air
force accomplished in hours what Operation Rolling Thunder, the massive
bombing campaign in North Vietnam, could not do in two years.”5
America’s conduct and defeat in the Vietnam War, together with Isra-
el’s lightening victory over three Arab armies in the Six-Day War, shaped
the attitudes and ideas of a whole generation of international lawyers in
the United States. The influence of these conflicts on the intellectual and
professional context of American international law stems both from US
involvement in these conflicts and opposition to that involvement begin-
ning with the emergence of the antiwar movement following the drafting
of university students by the Johnson administration in 1965, and continu-
ing through the culture wars that ensued.6 While the political depth of this
activism was always suspect, in part because it was “closely connected to
the vulnerability of these students, many from privileged backgrounds, to
the military draft then in place,”7 as Richard Falk recalled, it undoubtedly
contributed to the intensity of the antiwar activism that shook America for
a brief period in the 1960s and 1970s.
In her interviews with legal scholars who lived through that era, Naz
Modirzadeh observed that the Vietnam War was deeply personal for many
of these scholars, who “woke up to read the newspapers with headlines
discussing the stunning numbers of American soldiers killed as the war
progressed. They experienced firsthand the bitter differences that emerged
between colleagues, families, and friends.”8 They also “watched the nightly
news, which often featured astonishingly raw footage of the war, including
close-up portrayals of the suffering of Vietnamese civilians.”9 This was a
moment when “[d]iscussion of the war was constant, everywhere. Many
professors had students who were protesting, or were going off to war,
or were dedicating themselves to anti-war activism.”10 One interviewee
explained that what struck them most about the debates was their intensity,
and that “[n]othing has come close to that.”11
The intensity of dissent over the Vietnam War was something the
South African jurist John Dugard experienced when he spent part of 1969
teaching a course on comparative civil liberties at Princeton University,

on the invitation of Richard Falk, and when he spent the remainder of the
year visiting American universities across the country. Dugard recalled that
“[a]ll university campuses we visited were alive with dissent over the Viet-
nam War, and there was an idealism and vitality among the students that I
was not to encounter on subsequent visits to the United States.”12
The Vietnam War and the multiple Arab-Israeli conflicts also affected
younger generations of scholars and government advisers who did not
experience the war firsthand. Some of these were the children of those
who served in the war. But even those with no direct family connection
were influenced in different ways, including through Hollywood, which
has kept these conflicts in the public eye. Hollywood films include the
multiple Academy Award winning The Deer Hunter (1978), Coming Home
(1978), Apocalypse Now (1979), Platoon (1986), Born on the Fourth of July
(1989), and Forrest Gump (1994). Other Vietnam War films that performed
well at the box office that were nominated for Academy Awards, but did not
win any, include Full Metal Jacket (1987), The Quiet American (2002), and
The Trial of the Chicago Seven (2020)—the latter won a Golden Globe for
best screenplay.13 Then there was the multimillion-dollar Rambo franchise
(1982–2019) starring Sylvester Stallone. More recently, PBS produced a
10-part American television documentary series about the Vietnam War
that was directed by Ken Burns and Lynn Novick and broadcast in 2017
to critical acclaim.14 The series was shown in 88 countries (including Viet-
nam) and was watched by 39 million unique viewers.15 And this was before
it appeared on Netflix. The Arab-Israeli conflicts have also produced a
plethora of films and spy thrillers, from Hollywood blockbusters like Exo-
dus (1960); Syriana (2005); Munich (2005); Beirut/The Negotiator (2018);
The Little Drummer Girl (2018), based on John Le Carré’s novel; and the
Netflix film The Spy (2019). Then there was the multiple Emmy award
winning television series Homeland (2011–2020), based on the Israeli tele-
vision series Prisoner of War, and more recently the Israeli Netflix television
series Fauda (2015–), which has been watched by millions of people all over
the world.
Various political viewpoints motivate these different products of popu-
lar culture, but some prominent themes do emerge, such as a glorification
of special operations forces and the sensationalism of foreign intelligence
work that involves prying into the personal lives of ordinary people and
putting them into compromising situations so that they reveal critical
information about the enemy. One such common theme in some of these
films is the negative portrayal of America’s adversaries. “Ming the Merci-
less” in the film Flash Gordon (1980), popularized by the rock band Queen
in their song of the same name, for example, bore a striking resemblance
to the Vietnamese Communist Party leader Ho Chi Minh. In more recent
productions, the enemy is the Arab and Muslim world, which continues to
be vilified in the media as an enemy of Western civilization.16 The ongoing
negative portrayal of the broader Arab/Muslim world may also explain,
in part, why contemporary scholarship on the American War on Terror
adopts a view of the law that is “aridly technical, acontextual, and ahistori-
cal,” as compared to the passionate scholarship on the Vietnam War, when
the stakes for many scholars were higher because American lives were
placed directly at risk.17
Citations in Scholarship and Training Programs
Popular culture portrayals of the Vietnam War and the Arab-Israeli con-
flicts form a backdrop to their more direct influence on public policy. A
sense of this influence can be gained by appreciating the quantity of lit-
erature on these conflicts. A simple search on the catalogue of The Peace
Palace Library, the largest international law repository in the world, turned
up 4,700 entries for the “Arab-Israeli conflict”; 2,100 entries for “Israel
Palestine conflict”; and 1,200 entries for the “Vietnam War.”18 By way of
comparison, a search for “Falklands War” produced 144 entries and the
“Gulf War” 834 entries.19 The only other comparable conflict was the Iraq
War in 2003 that produced 2,200 entries.20 However, the legal arguments
around preemptive/preventive war produced to justify the invasion of Iraq
in the United States, as encapsulated in the 2002 National Security Strategy
of the United States of America (NSS-2002), owed much to previous Israeli
policy, especially Israel’s 1981 raid on an Iraqi nuclear reactor.21
The direct impact of the Vietnam War and the Arab-Israeli conflicts
on the law of war can also be ascertained by the number of references to
these conflicts in official government publications. For example, the United
States Department of Defense Law of War Manual published in June 2015
and updated in December 2016, made multiple references to the Vietnam
War and Israeli military actions and court decisions. A simple search of
the manual revealed that the word “Vietnam” is mentioned 84 times and
“Israel” 48 times. Strikingly, there are as many references to the war in
Afghanistan, which is the longest war in US history, as there are references
to Israel’s conflicts with its Arab neighbors. By way of comparison, there
are only 15 references to the Kosovo War and only 2 references to the war
in Bosnia.22 The United Kingdom’s Joint Service Manual of the Law of Armed
Conflict published in 2011 mentioned the Vietnam conflict 8 times and the
conflicts between the Arab world and Israel 3 times. The Australian Defence
Doctrine Publication on the Law of Armed Conflict published in 2006 mentions
the Vietnam War half a dozen times, with specific examples of incidents
highlighted. The International Committee of the Red Cross’s Customary
International Humanitarian Law study makes more than 300 references to
Israel and more than 30 to Vietnam.23
In addition to these publications, the Vietnam War even led to the devel-
opment of new branches of the law in the United States, such as “national
security law” and “operational law.” The former was developed by scholars
such as John Norton Moore and the American Bar Association that were
directly influenced by the Vietnam War as explored in the chapter by Mad-
elaine Chiam and Brian Cuddy. After the 1990 Gulf War, Israeli military
lawyers began participating in training programs on operational law in the
United States, which was then employed to deal with the Palestinian situa-
tion, as explored in Craig Jones’s chapter.24 Such training programs further
developed the professional networks of American and Israeli international
lawyers. Key figures in these networks gained influence in both countries,
including Yoram Dinstein, a professor emeritus of international law at Tel
Aviv University, who earlier in his career served as an official for the Israeli
government.25 His publications on the laws of war have become essential
reading in courses on the laws of war all over the world.26 Another key fig-
ure in this network is Michael Schmitt, the Francis Lieber Distinguished
Scholar at the Lieber Institute of the United States Military Academy, and
a prolific law of war scholar, who is now professor of international law at
the University of Reading.27
Not long after the establishment of these operational law training pro-
grams, as Noura Erakat has documented in her work, Israeli government
lawyers sanctioned violent tactics “short of war” to kill Palestinians deemed
to be terrorists by Israel during the second intifada.28 Israel’s impressive
credentials as the ultimate national security state have led to the paradoxi-
cal situation that its way of fighting war is now idolized by some Arab
states—such as the United Arab Emirates and Saudi Arabia—that once
opposed it.29 And where war goes, military law follows.
A Common Enemy
Israel became the model that successive US administrations, particularly

right-wing Republican administrations, would emulate in searching for
monsters to destroy. During the Cold War, the Jewish state became per-
ceived as a bastion that safeguarded Western values from a hostile world
comprised of Third World revolutionaries and communist nations that
ganged up on Israel in the United Nations.30 The United States and Israel
had a common enemy: Third World revolutionary forces supported by
their Cold War nemeses the Soviet Union and Red China, exemplified by
Vietnamese and Palestinian groups that attacked civilian targets, such as
hotels, markets, and public buses, and kidnapped civilians in order to sow
violence and discord.31 In 1972, the United States began vetoing Security
Council resolutions critical of Israeli policy in East Jerusalem, the West
Bank, and the Gaza Strip32 following the kidnapping and murder of Israeli
athletes at the 1972 Munich Olympics, forever linking Palestinian nation-
alism with international terrorism in the media.33
The following year, the United States shielded Israel again at the Secu-
rity Council and organized a massive airlift to Israel in the 1973 Octo-
ber War, after Egypt and Syria with Soviet backing sought to recapture
lands conquered by Israel in 1967—as we learned from John Quigley in his
chapter in this volume.34 The use of force by Egypt and Syria in the Octo-
ber War raised the issue of whether the use of force to recapture previously
occupied lands can be considered a legitimate use of force. The legitimacy
of this type of force has implications for other longstanding occupied ter-
ritories such as Nagorno-Karabakh or Northern Cyprus.
The perception that Israel and the United States were engaged in a
collective fight on behalf of the free world against international terrorists,
from Vietcong guerrillas to Palestinian freedom fighters, was dramatically
captured in the 1976 Raid on Entebbe, a counterterrorist hostage-rescue
mission carried out by Israeli commandos in Uganda that revitalized “the
portrait of Israel as an indomitable and righteous military power defend-
ing beleaguered innocents and striking a blow for civilization.”35 Kaplan
explained how news coverage of the Entebbe raid “took on mythic dimen-
sions and became etched in American popular culture.”36 In his autobiogra-
phy, Benjamin Netanyahu, Israel’s prime minister, whose brother was killed
during the Raid on Entebbe, credits his father with giving him the idea to
court leading political figures and media moguls in the United States in the
1980s to adopt “a new and far more aggressive American-led approach to
combatting global terrorism.”37
The image of heroic Israeli soldiers freeing Western civilians from
the clutches of international terrorists was shared by many government
officials in the United States who came of age in the 1970s, when Israel
was castigated as a colonial power in cahoots with the apartheid regime of
South Africa. As Kattan explained in his chapter, following the fall of Sai-
gon in 1975, neoconservative neophytes and battle-hardened Vietnam War

veterans assembled to remake America by joining forces with the Reagan
administration to take the fight to the enemy, whether that fight took place
at the UN or in the field.38 These individuals would come together again
after 9/11, when a second war against international terrorism was declared.
The First War against International Terrorism
In June 1984, US Secretary of State George Shultz announced to the world

that the United States would adopt a policy of “active defense” in prevent-
ing international terrorism.39 The new policy was announced by Shultz fol-
lowing the suicide truck bombings of the American Embassy in Lebanon
and US Marine Corp barracks at Beirut’s International Airport in 1983.40
The attack was widely blamed on agents of Iran’s Revolutionary Guards
who had begun a covert war against the United States, which Ayatollah
Khomeini called the “great Satan,” and the State of Israel, the “little Satan.”
The term “active defense” had earlier been used by Israeli governments
to justify their counterinsurgency strategy against returning Arab refugees
who were displaced from their homes in 1948, as we learn from reading
Brian Cuddy’s chapter that traces the strategy to Israel’s border wars of the
early 1950s.41 This was also when early iterations of ideas like the “accu-
mulation of events doctrine” and the “unable or unwilling test” were first
mooted by Israeli officials to get around the necessity of proving that Israel
had been subjected to a prior armed attack by the Arab states, as required
by Article 51 of the UN Charter.42 Cuddy observes how, after initially being
rejected by US lawyers, these ideas later circulated between Israeli and US
officials during and after the Vietnam War. US lawyers justified the US
incursion into Cambodia in 1970 using an “unable or unwilling” rationale,
for example, before the doctrine circled back to the Arab-Israeli conflict,
where the United States offered it as a rationale for Israel’s Entebbe rescue
operation in 1976, and then Israel reemployed the doctrine to justify its
repeated incursions into Lebanon in the 1970s and 1980s.43 Since then
the “unable and unwilling doctrine,” or “test,” as it is sometimes called,
has been invoked to justify the killing of US enemies in drone strikes far
removed from traditional battlefields—including in Pakistan, Syria, Mali,
Ecuador, Yemen, Georgia, and the Congo.44
It was during the Reagan administration when the association between
the enemies of Israel and the United States was strengthened. A key
moment in this process was the notorious Klinghoffer affair in 1986, when
a PLO splinter group murdered a 69-year-old Jewish-American man in

a wheelchair and threw him overboard off the coast of Syria, which was
subsequently made into a television action drama as well as an opera. This
was when Shultz wrote an influential article in Foreign Affairs, in which
he went so far as to describe the UN Charter as a “suicide pact.”45 Shultz
cited an article by Abraham Sofaer, the State Department legal adviser,
who claimed that “Since the days of President James Madison, the United
States has repeatedly acted against armed bands that attacked Americans
and then fled, seeking sanctuary in neighboring countries unwilling or
powerless to prevent or punish their acts.”46
Gone was the US commitment, however self-interested, to their earlier
vision of a rules-based liberal world order that inspired the establishment
of the United Nations in 1945, which reaffirmed the equal rights of nations
large and small and which prohibited any use of unilateral armed force that
could not be justified under the UN Charter, in which self-defense was lim-
ited to using force in response to an armed attack on a state from another
state.47 The Reagan administration had come around to the view that there
was no point in referring to the UN Charter when it was the Charter that
needed reform. This was especially the case as many of the states that had
emerged from decolonization since 1945, and which could now contribute
to the formation of new rules of customary international law, could not be
counted on to share US views of the “original constitutional conception of
the UN Charter,” particularly with regard “to the special position of the
permanent members of the Security Council in the maintenance of inter-
national peace and security.”48 Instead the United States referred to prec-
edents from its imperial age—from the days of James Madison’s westward
expansion of American territory to settle Europeans in lands stolen from
Native Americans—that were cited by Sofaer as though the prohibition on
the use of force in the UN Charter did not exist.
The position adopted by the Reagan administration toward the UN
Charter contrasted starkly with the situation during the Vietnam War, when
the US government still sought to maintain its liberal image as a champion
of a rule-governed international order “when it went to great lengths to
argue that its policies and practices in Vietnam accorded with international
law and the UN Charter,” explained Falk.49 This is a view that is also borne
out in the chapter by Madelaine Chiam and Brian Cuddy, which demon-
strates that both those lawyers associated with the prowar camp and those
lawyers associated with the antiwar camp felt at ease debating the merits
and cons of the Vietnam War by referring to the UN Charter.50 This was
very different to the US legal justifications for employing force during the
“war on terror” in which successive US governments (both Democrat and

Republican) saw the UN Charter as outdated and not fit for purpose and
increasingly articulated arguments justifying armed force outside the Char-
ter framework. In other words, in the 1960s, the lawyers, from whatever
ideological standpoint, all agreed on the terms of the debate, i.e., the UN
Charter, whereas until recently US lawyers were increasingly articulating
a preventive war rationale that was wholly at odds with the Charter frame-
work. When, following Russia’s premeditated attack on Ukraine in Febru-
ary 2022, the Biden administration vociferously demanded adherence to
the “rules-based world order” envisioned by the UN Charter, it apparently
forgot how previous US administrations had jettisoned this very order.
The Second War against International Terrorism
By the Reagan administration, then, the war prevention rationale that had
informed the authors of the UN Charter was seen by the US government
as too restrictive and outdated for the modern world. Washington argued
that it needed urgent reform. The only other state to support this view at
that time was Israel.51 But in little more than a decade, the international
resistance to the idea that the US could pursue terrorists overseas in endless
wars was washed away following the attacks on the Twin Towers on 9/11.52
In the words of Robert Cooper, a former foreign policy advisor to Brit-
ish prime minister Tony Blair, the West needed “to revert to the rougher
methods of an earlier era—force, pre-emptive attack, deception, whatever is
necessary to deal with those who still live in the nineteenth century world
of every state for itself. Among ourselves, we keep the law but when we are
operating in the jungle, we must also use the laws of the jungle.”53
Cooper was adamant that if “terrorist syndicates” used bases in failed
states “for attacks on the more orderly parts of the world, then the orga-
nized states will eventually have to respond.”54 “This is what we have seen,”
he wrote, “in Colombia, in Afghanistan and in part in Israel’s forays into
the Occupied [Palestinian] Territories.”55 Note how Israel’s “forays” into
the West Bank and Gaza were seen by Cooper as a model for liberal states
to tackle terrorism elsewhere.
Thus we had come full circle: an Israeli military strategy that had been
condemned at the UN in the 1950s for being contrary to the UN Char-
ter, and initially rejected by US lawyers as a basis for escalating the war in
Vietnam,56 had now become an acceptable policy. Following the attacks on
9/11, the security of the whole world was at stake, so it was claimed. Article
51 of the UN Charter, which literally required a state to take a hit in the
form of an “armed attack” before it could respond in self-defense, was not

good law when faced with terrorism “of a suicidal variety.”57 It had become
incumbent to revise the UN Charter.
In 2002, in the lead-up to the invasion of Iraq, the United States decided
that the policy enunciated by Shultz in 1984, which as Shultz recalled was
opposed by many American officials at the time,58 had in fact reflected cus-
tomary international law “for centuries,” and was therefore binding on all
states, friend and foe alike.59 The National Security Strategy of the United
States of America (NSS-2002), published in September 2002, went even fur-
ther when it argued that the unique threats to America’s security meant
that the United States had to be able to respond to future threats “even if
uncertainty remains as to the time and place of the enemy’s attack.”60
The claim that a state could respond in self-defense to threats and not
just to armed attacks or attacks that were “imminent” was explicitly rejected
at the UN’s World Summit Outcome in 2004.61 Rather than hinder the
further development of the law, however, the categorical position adopted
at the World Summit galvanized those lawyers in the United States who
rejected the sovereign equality of states and who used their positions of
authority to “update” the law to reflect modern threats that would enable
preventive military action.62 And the only state that had a track record of
acting in self-defense to prevent future attacks prior to 9/11—and justifying
these attacks by attempting to make an international law rationalization—
was Israel, when it attempted to justify its bombing of an Iraqi nuclear
reactor in 1981.63 But as former IDF lawyer Daniel Reisner told Israel’s
Haaretz newspaper in 2009, even though the Security Council had con-
demned Israel for violating international law, “today everyone says it was
preventive self-defense.”64
Attempts at Reforming the Law
What followed the terrorist attacks on 9/11 was a concerted effort by a

small group of government lawyers to transform the law to overcome resis-
tance for the need to change the rules.65 There appeared to be a residual
fear that there might be a repeat of the Vietnam syndrome, when massive
opposition to that war weakened Washington’s ability to lead the world.
There was concern that the malaise caused by the Iraq War might make
future Western interventions more difficult given public opposition to
further wars. This was dramatically captured in President Obama’s deci-
sion, following a vote in the British House of Commons, not to enforce
his red line in Syria after a chemical weapons attack on civilians by the
Assad regime.66 As Guglielmo Verdirame commented: “There is no better

evidence of the long shadow that the Iraq war continues to cast that, while
in 2003 the British Parliament supported intervention against the mere
possibility that weapons of mass destruction might be used, ten years later
the British Parliament voted against it after they had actually been used.”67
The war prevention rationale that had inspired the authors of the UN
Charter had long divided legal opinion into two categories: those who
strictly separated the jus ad bellum from the jus in bello and read the UN
Charter as a war-prevention mechanism, and those who thought that wars
were inevitable and had to be managed as though armed conflict was an
extension of a state’s foreign policy. Those who viewed war as an undesir-
able, albeit routine situation, since any international law that “seeks to pre-
vent war but ignores power is destined to fail,”68 read the UN Charter as
a complex document that had to be interpreted in the light of other legal,
political, and strategic pillars.69 The law could not remain static but had to
adapt to changing circumstances.
The belief that the law needed revising was due to a combination of
threats, both real and imagined, as well as the advent of new weapons tech-
nologies: data mining and predictive analytics, precision-guided missiles,
remotely piloted drones, robotics, and autonomous fighter jets.70 It had
become incumbent for responsible states to “adapt legal and institutional
arrangements to the development of new strategies, which, in turn, respond
to innovation in military technology.”71 Unsurprisingly, the governments
calling for a change to the law of war were also the same governments that
were jointly developing these new weapons systems.72
And again, America’s experience in Vietnam and Israel’s wars with its
Arab neighbors were the laboratories for the development of new weap-
ons, whether it was the HueyCobra attack helicopter or Boeing’s twin-
turboshaft Apache helicopter.73 Although drones had been used in the
Vietnam War to take pictures, it was only with Israel’s development of
weaponized drones in its numerous interventions in the Lebanese civil war
in the 1970s and 1980s “that the various constituent technologies of drones
had matured to the point that it became possible to watch a particular per-
son from the sky, and then to target and kill that person.”74
A Common Threat Perception
It appears that attempts at reforming Article 51 of the UN Charter

remained limited to small circles of lawyers and secret meetings between
like-minded states,75 a process that is ongoing.76 Although there remains

resistance to these efforts at the UN General Assembly,77 the conversa-
tions78 are revealing for what they tell us about the importance of the Viet-
nam and Arab-Israeli conflicts in shaping ideas and identifying threats, as
these conflicts appeared to influence the views of two of the officials that
were leading those conversations.79 This included John Bellinger III, who
was the legal adviser to the National Security Council when NSS-2002
was written, and Daniel Bethlehem, who continued the work that was initi-
ated by Bellinger when he was appointed the principal legal adviser to the
United Kingdom’s Foreign and Commonwealth Office from 2006 until
2011, which coincided with Israel’s “second” war in Lebanon and the assas-
sination of al-Qaeda leader Osama bin Laden in Pakistan.80
Apart from both holding key government positions, and being of the
same generation, Bellinger and Bethlehem also have family and work con-
nections to Vietnam and Israel. Bellinger III was the son of John B. Bell-
inger II, a decorated Army colonel and Defense Department official, who
was born in NATO Headquarters, and did two tours of Vietnam.81 Bell-
inger III, whose mother was a Russia analyst in the Central Intelligence
Agency, also has history with Israel, having secured the dismissal of lawsuits
filed in multiple US jurisdictions against senior Israeli officials accused of
harming US citizens in military operations on civilian vessels trying to
breach the blockade of Gaza that were brought under the Alien Tort Stat-
ute.82 Bethlehem has close family connections to Israel and has advised the
Israeli government on sensitive legal disputes with the Palestinians before
he was appointed legal adviser of the FCO.83 In a written submission to
the United Kingdom’s House of Commons Select Committee on Foreign
Affairs, Bethlehem expressed support for a very wide concept of preventive
self-defense that would allow states to use force in international affairs if
the government employing such force reasonably foresaw the threat of an
attack as opposed to an actual attack.84
While no single individual can change the policy of a government,
they can contribute to new thinking that might influence government if
they hold key government roles where they have direct access to deci-
sion makers and can contribute to the formation of policy. Consider the
role of the Vietnam War and the Arab-Israeli conflicts in shaping the
thinking of the Bush War Cabinet after 9/11, a group of people focused
above all on ensuring the preeminence of American military power and
rebuilding the armed forces after Vietnam.85 The Vietnam War and the
conflicts between Israel and the Palestinians also shaped the thinking of
key figures in Bush’s Department of Defense, as suggested by multiple
references to those conflicts in confirmation hearings before the Senate

Armed Services Committee for Donald Rumsfeld, Paul Wolfowitz, Dov
Zackheim, and Douglas Feith.86
Other key figures influenced by the Vietnam and Arab-Israeli conflicts
whose names appear in some of the chapters of this book were legal advis-
ers, such as W. Hays Parks and Feith who held positions at the Pentagon in
the Reagan and Bush administrations, and Shultz, Sofaer, Allan Gerson, and
Eugene Rostow who held positions at the State Department in the Nixon,
Reagan, and Bush administrations. These individuals had either served in
the Vietnam War or had close connections to Israel.87 The foreign policy
beliefs they held in common also contributed to greater convergence in
international law interpretations between the United States and Israel.88
There was an ideological current that connected them all.
The Politics of the Additional Protocols
The convergence between American and Israeli interpretations of inter-

national law since the 1970s can be seen not only in justifications for using
armed force, but also in arguments around how to use force legitimately
during armed conflicts. The Vietnam War and the Arab-Israeli conflict
influenced both the drafting of rules for the conduct of hostilities at the
Diplomatic Conference in Geneva in the 1970s and the subsequent inter-
pretations of those rules. Under the stewardship of George Aldrich—
who as a State Department lawyer had previously handled day-to-day
legal issues relating to the Vietnam War—the United States played a cen-
tral role in drafting the new rules. But while the United States signed the
1977 Additional Protocols to the 1949 Geneva Conventions, it did not
ratify them. The Reagan administration ultimately ended up siding with
Israel, which was the only state that had remained steadfastly opposed to
them in Geneva.89
Since that time, the United States has adopted language that is virtu-
ally indistinguishable from Israeli prime minister Benjamin Netanyahu’s
talking points about terrorists hiding among civilians and human shields.
Indeed, to an Arab or Afghan ear, United States’ claims about killing civil-
ians in Afghanistan, Iraq, and Yemen are virtually indistinguishable from
Israeli claims about the necessity of killing civilians in Gaza. Netanyahu
has consistently encouraged a firmer Western response to terrorism,
including being more accepting of civilian casualties, since he was a diplo-
mat in the United States in the 1980s,90 a claim that he repeats in his 2022
autobiography.91 Writing in a 1986 book, he rejected the idea that “military

strikes aimed at terrorists and terrorist attacks on civilians belong on the
same moral plane.” Arguing that this “false symmetry” arose “because of
the sloppiness of the West’s thinking about the use of force,” Netanyahu
suggested that “the rules of engagement have become so rigid that gov-
ernments often straitjacket themselves in the face of unambiguous aggres-
sion.” He cautioned that “an absolute prohibition on civilian casualties
affords the terrorist an invincible shield.”92
Netanyahu attributed the West’s reluctance to use force against terror-
ists located among civilians to the Vietnam War, arguing in the same 1986
book that “America’s loss of clarity in the wake of Vietnam has become a
general Western malaise.”93 Yet in this analysis Netanyahu displayed his
own intellectual sloppiness, for the Vietnam War was not simply the prompt
for the West’s reluctance to use force among civilians but also gave rise to
justifications for civilian casualties—justifications that were subsequently
adopted by Netanyahu and the government of Israel. As Neve Gordon and
Nicola Perugini observe in their history of the use of human shields, dur-
ing Operation Protective Edge (2014) the Israeli Foreign Ministry justified
Israel’s actions by using “language strikingly similar to the arguments used
by . . . the American administration during the Vietnam War,” including
the claim that Palestinian tactics “violate the customary prohibition against
perfidy under international humanitarian law.”94
As Amanda Alexander explained,95 under pre-1977 law, that is, before
the Additional Protocols to the 1949 Geneva Conventions were concluded
at the Diplomatic Conference in Geneva, irregular fighters, whether they
were the Vietcong or Palestinian fedayeen, were mostly placed outside the
bounds of international law. Under the 1907 Hague Convention, there
was no right of resistance once occupied (there was a right for civilians
to resist an occupying force while that force was occupying territory, known
as a levée en masse, but not once the territory was subdued). There was a
clear distinction in the law between civilians and combatants, and civilians
who engaged in hostilities lost the rights of protected persons and could
be lawfully killed. In other words, civilians who became involved in armed
conflict were liable to be executed, while the rest of the population could
be subjected to reprisals. During the Vietnam War, however, direct attacks
on civilians became difficult to defend morally. Images of civilian deaths,
including woman and children, shocked the conscience of mankind, filling
the pages of newspapers and even provoking the establishment of peoples’
tribunals to pass judgment on the actions of the United States govern-
ment. The United States had lost the battle for public opinion. As Tor
Krever explained, the Russell Tribunal on the Vietnam War would become
a model for subsequent peoples’ tribunals, including on Israeli actions in
Palestine, even if their political motivations and beliefs about the value of
law differed.96
Attempts to use the law to condemn American actions in Vietnam, and
prevent similar actions in other wars, were not limited to nonstate peoples’
tribunals. A major push to reform the laws of war resulted in the 1974–1977
Diplomatic Conference in Geneva. With their growing clout in interna-
tional forums, newly independent states and their supporters pushed for
the protection of both civilians and guerrilla fighters in the negotiations
for the Additional Protocols, as well as the recognition of wars of national
liberation as international armed conflicts. As Alexander observed, their
success in these measures entailed a significant change in the understand-
ing of the law of war (or international humanitarian law): combatants
were no longer defined as being limited to the regular military in their
conventional uniforms, but included guerrillas, revolutionaries, and peas-
ant armies. A civilian could, as Alexander pointed out, be a peasant by day
and a guerrilla by night—Chairman Mao’s scholar and fighter: “Civilians
were defined as not being combatants, as a vulnerable population granted
increased protection—yet at the same time combatants were defined in a
way that meant that they could also be civilians, at least some of the time.”97
This novel definition of a civilian was seen as a great victory for Third
World freedom fighters and especially the PLO, as explored in the chap-
ter by Ihab Shalbak and Jessica Whyte.98 But the anticolonial success was
bittersweet. Gaining greater protections for civilians and more legitimacy
under international law for liberation fighters were somewhat illusory gains
for Palestinians, allowing them to accrue more features of statehood but
without the attainment of independence, and they did not prevent Israel
from developing its own understandings of the laws of war that played on
the now-ambiguous status of civilians, as well as using its position as a tech-
nologically advanced state to exploit the complexity of the law.
Learning the Lessons of Vietnam
The paradox was that critics of American power could not be absolutely
certain that killing civilians was unlawful, if the military could prove that
civilians were engaged in hostilities.99 Under pre-1977 law, this task was
easier to prove. A civilian was a civilian and a combatant was a member of
the armed forces. But in post-1977 law, the definition of a civilian became
ambiguous: a civilian killed in a military operation may have been a combat-

ant. Distinguishing between civilians and combatants now became a ques-
tion of fact, and answering that question was dependent on fact-checking.
Only the biggest military powers have the capacity to check facts. They
control the area of hostilities, accredit journalists, and control their move-
ments. Their governments can also prevent human rights organizations
entering a country. Governments are better placed to saturate the media
with disinformation and half-truths: ready-made stories about terrorists
hiding among civilians, blurring the distinction between combatants and
civilians, which is easily done in a densely populated city like Baghdad,
Gaza, Fallujah, Kyiv, Kharkiv, Mariupol, or Saigon. The military can edit
YouTube clips to show only what they want the world to see disseminated
widely on social media.100 They have the capacity to leak misleading stories
to the press corps. Their security services have even created fake Face-
book and Instagram accounts and deploy Twitter bots manned by Twitter
“armies.”101 The military often employ spokespersons fluent in American,
Australian, British, or South African English who control the war narrative
on television, radio, and the internet to ensure that their story is the first
to break, dominating the headlines for the first 24 hours before the story
becomes stale.
The United States and Israel had learned the lesson of Vietnam: you
must dominate the war narrative to ensure you win the battle of public
opinion, which can be just as decisive to the outcome of a war as victory
on the battlefield. Dominating the war narrative is, in turn, enabled by the
deployment of historical knowledge and argument. As W. Hays Parks com-
mented in his critique of the ICRC’s customary international humanitar-
ian law study, how and why nations fight and a good grasp of history are
important to understand the development of the law of war.102 Therefore
when making a claim that a particular practice reflects the law, the historical
context is important. Parks suggested that a claim in the ICRC study that a
1972 Soviet statement favoring the prohibition of particularly cruel means
of warfare, like the use of napalm, was a reflection of the law was mistaken.
For Parks, the Soviet statement was a reflection not of the law but of the
political context in which it was made—in this instance the 1972 North
Vietnamese invasion of South Vietnam (often called the Easter Offensive)
and its defeat by US airpower. Accompanying the Soviet statement was “the
famous photograph of the young South Vietnamese girl running down the
road, naked, following a napalm strike against North Vietnamese forces.”103
Parks added that the photograph became “the centerpiece for increased
opposition to the Vietnam War, and criticism of US weapons.”104
As Parks intuitively recognized, there is always the possibility that gov-

ernment propaganda will influence not only the peace movement but also
international lawyers responsible for formulating studies of customary
international law. But absent from his criticism of such studies, which he
has been articulating for more than four decades, was any admission that
the US war in Vietnam might have been wrong and morally indefensible.105
Making and Breaking Global Rules
International law develops through precedents, but not all precedents

are equal. By “precedent” we do not mean legal precedents, as in court
decisions, as there is no rule of stare decisis in international law as there
is in common law systems. However, when it comes to the use of force,
precedents—in the form of previous conflicts—do matter; especially those
conflicts that capture the public imagination. Although these precedents
do not bind states, they may contribute to the formulation of global rules
that fill the gaps not covered by conventions, and to the interpretation of
those conventions. To quote Hays Parks again, “war is the ultimate test of
law. Government-authorized actions in war speak louder than peacetime
government statements.”106
The US approach to the making of global rules is one that emphasizes
the practice of the dominant powers—namely itself and a handful of other
states. In the words of Olivier Corten, when US lawyers cite “major states”
to support their legal interpretations, it is usually a euphemism for “the
United States and some of its Allies.”107 Occasionally alternative expres-
sions may be used, such as “Western governments,” the “community of
democracies,” or even the “civilized world.”108
While the formation of customary international law is technically based
on the sovereign equality of all states, no matter how large or small, outside
the hallowed halls of the Peace Palace it is the practice of the dominant states
that matter, especially when it comes to the law of war. It is the views of the
states that fight more wars, more often, that count. This creates the rather
perverse situation that a lawbreaker could become a lawmaker and decide
what amounts to law and what does not.109 Preventing this hegemonic path
requires other states to uphold the standards of the UN Charter and other
treaties that the United States and other powerful states have ratified.
The United States began openly articulating a hegemonic approach to
international law in the 1970s when Third World states came to dominate
the UN General Assembly. The United States was concerned about losing
control of the formation of customary international law at a time when

it was in a relatively weak international position having lost the Vietnam
War. It is a concern that Washington has continued to express in more
recent times. Consider the American reaction to the ICRC customary
international humanitarian law study mentioned above. The United States
explained that it was “troubled” by the extent to which the study “relied
on non-binding resolutions of the General Assembly, given that states may
lend their support to a particular resolution, or determine not to break
consensus in regard to such a resolution, for reasons having nothing to do
with a belief that those propositions in it reflect customary international
law.”110 This reasoning was striking in its similarity to that advanced by US
legal advisers, like Hays Parks, when he advised the Reagan administration
not to ratify AP1.111
This view, which dismisses majority decision-making in UN organs in
favor of the minority positions of the powerful, is extremely dangerous to
the concept of a global plural legal order. Scholars need to be more vigi-
lant about the sources and origins of these arguments. For if international
law is about nothing other than maintaining a Pax Americana, and if the
law of war is nothing but the latest expression of US foreign policy, then
there will be no standard by which to judge the actions of future states that
violate international law. This, to a certain extent, is the trouble with the
war in Ukraine. For the historically minded international lawyer, the Biden
administration’s strident criticisms of the war for violating international
law appear contrived.112
In his criticism of the US government’s legal rationale for its 1970 inva-
sion of Cambodia, Richard Falk presciently foresaw that it would no longer
be possible for the United States to make credible objections to future
violations of international law.113 Indeed, five decades after he wrote those
words, there does not appear to be any anxiety, worry, or foreboding in
the United States about what the legal arguments advanced to justify the
never-ending war on terror might entail for future conflicts, as Modizardeh
astutely observed from her many conversations with military lawyers in
the United States.114 Justifications for employing armed force outside the
confines of the UN Charter, often made in the heat of the moment, have
a tendency to develop a life of their own, as the Vietnam and Arab-Israeli
“precedents” have demonstrated, and played into Russian president Vladi-
mir Putin’s hands when he was able to cite America’s previous violations
of international law to justify his country’s own violations in Ukraine.115
Efforts at unilaterally rewriting rules for employing force outside the UN
Charter are even more dangerous. Not only do these efforts allow for the
subjective interpretation of the law by the states employing force, and of

the threats they may face, but they also tend to “assume military action and
enable, rather than constrain, violence.”116 Action to address this danger
will fare better if it acknowledges the Vietnam War and Arab-Israeli con-
flicts as key sites of production for these permissive interpretations, and
if it understands the pathways of people, doctrines, and technologies that
connect them.
NOTES
1. See the preamble, Art. 2(4), Charter of the United Nations, October 24,
1945, 1 UNTS XVI.
2. See Chapter VII, UN Charter.
3. For a recent collection of state practice on the use of force that reflects the
mainstream view of international law in this area, but which does not consider the
reasons why some conflicts have had a greater influence on the development of
the law than others, see Tom Ruys, Olivier Corten, and Alexandra Hofer, eds., The
Use of Force in International Law: A Case-Based Approach (Oxford: Oxford University
Press, 2018).
4. Amy Kaplan, Our American Israel: The Story of an Entangled Alliance (Cam-
bridge, MA: Harvard University Press, 2018), 7.
5. Kaplan, Our American Israel, 110.
6. On the draft see Laura E. Hatt, “LBJ Wants Your GPA: The Vietnam
Exam,” Harvard Crimson, May 23, 2016. On the culture wars see Andrew Martin,
Receptions of War: Vietnam in American Culture (Norman: University of Oklahoma
Press, 1993). Keith Beattie, The Scar that Binds: American Culture and the Vietnam
War (New York: NYU Press, 1998). William S. McDonnel, ed., The Counterculture
Movement of the 1960s (New York: Greenhaven Press, 2004).
7. Richard Falk, Public Intellectual: The Life of a Citizen Pilgrim (Atlanta: Clarity
Press, 2021), 119.
8. Naz K. Modirzadeh, “Cut These Words: Passion and International Law of
War Scholarship,” Harvard International Law Journal 61, no. 1 (2020): 1–64, at 51.
9. Modirzadeh, “Cut These Words,” 51.
12. John Dugard, Confronting Apartheid: A Personal History of South Africa,
Namibia, and Palestine (Johannesburg: Jacana Media, 2018), 51.
13. On his second visit to Vietnam in 1972, Richard Falk traveled as part of a
four-person delegation to Hanoi to repatriate three American pilots. One of the
members of the delegation was David Dellinger, the oldest defendant in the trial of
the Chicago Seven who features prominently in the 2020 Netflix film of the same
name. See Falk, Public Intellectual, 221. Dugard recalled that he spent a day observ-
ing the trial in Chicago. See his recollections in Dugard, Confronting Apartheid, 51.
14. The series also attracted some criticism from historians. See, for example,
Colleen Flaherty, “Historians MIA,” Inside Higher Ed, January 9, 2018, https://www
.insidehighered.com/news/2018/01/09/professors-debate-role-historian-or-lack
-thereof-ken-burns-and-lynn-novicks-vietnam
15. Hanh Nguyen, “‘The Vietnam War’ Premiere Is the Best Performing PBS
Episode Since ‘Downton Abbey’ Series Finale,” IndieWire, October 13, 2017.
16. On this see Jack G. Shaheen, Reel Bad Arabs: How Hollywood Vilifies a People
(Northampton, MA: Olive Branch Press, 2012). Mahmood Mamdani, Good Mus-
lim, Bad Muslim: America, the Cold War, and the Roots of Terror (New York: Penguin
Random House, 2004). Howard Friel and Richard Falk, The Record of the Paper: How
The New York Times Misrepresents US Foreign Policy (New York: Penguin Random
House, 2007). Greg Philo and Mike Berry, More Bad News from Israel (London:
Pluto, 2007).
17. See Modirzadeh, “Cut These Words.” Modirzadeh does not consider the
negative portrayal of the Arab/Muslim world in her article as a possible explanation
for the different styles of legal scholarship between the Vietnam War and the War
on Terror, but it could be implied, given that the dehumanization of the enemy in
popular media, combined with the advent of modern technology such as drones has
created a cultural barrier between those responsible for formulating and executing
policy (including government legal advisers and scholars of the law of war, whether
they are military or civilian) and the enemy thousands of miles away who are no
longer visualized as living, breathing, human beings. On this issue, see the insight-
ful article by Ed Pilkington on US drone operators, “Life as a drone operator: ‘Ever
step on ants and never give it another thought?,’” The Guardian, November 19,
2015.
18. The search was done on the catalogue (https://peacepalace.on.worldcat.org
/discovery#) in November 2022.
19. Peace Palace Library (https://peacepalace.on.worldcat.org/discovery#).
20. Peace Palace Library (https://peacepalace.on.worldcat.org/discovery#).
21. The formal legal argument to justify the invasion of Iraq was based on a
series of Security Council resolutions; however, this argument was invented after
the decision had already been taken to go to war. On the role of official documents
setting out the purposes of the institutions of state in formulating the reasons for
going to war, see the perceptive article that was authored by Anthony Carty over
a decade before the findings of the Iraq War Inquiry were made public: Anthony
Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to Inter-
national Law,’” European Journal of International Law 16 (2005): 143–51. For an
assessment that takes into account the findings of the Iraq War Inquiry, documents
disclosed on the drafting of NSS-2002 and Israel’s raid on Osiraq see Victor Kat-
tan, “The ‘Netanyahu doctrine’: The National Security Strategy of the United States of
America and the invasion of Iraq,” in Satvinder Juss, ed., Human Rights and America’s
War on Terror (New York: Routledge, 2019), 1–28.
22. The only other war that is liberally referenced is Iraq, with 238 references,
but that conflict could be considered an extension of the Arab-Israeli conflict in
ideological and political terms since Iraq was a direct participant in the First Arab-
Israeli conflict in 1948 and given that Saddam Hussein had a long history of fund-
ing and hosting radical Palestinian factions in Baghdad, and even fired Scud mis-
siles into Israel in 1991. His WMD capability was also considered a threat to Israel,
even though it later transpired that his government had destroyed its stockpiles.
23. See Jean- Marie Henckaerts and Louise Doswald- Beck, eds., Customary
International Humanitarian Law. Volume 1: Rules (Cambridge: Cambridge Univer-
sity Press, 2009).
24. See Craig Jones, “Operationalizing International Law: From Vietnam to
Gaza,” this volume.
25. According to an investigative report in Haaretz, Dinstein continued working
for the Israeli government when he became head of Amnesty International’s Israel
section from 1974 to 1976. See Uri Blau, “Documents Reveal How Israel Made
Amnesty’s Local Branch a Front for the Foreign Ministry in the 70s,” Haaretz,
March 18, 2017, https://www.haaretz.com/israel-news/2017-03-18/ty-article/.pre
mium/how-israel-made-amnestys-local-branch-a-front-for-the-foreign-ministry
-in-the-70s/0000017f-da78-dc0c-afff-db7b23800000. Dinstein was later appointed
the Charles H. Stockton Professor of International Law at the U.S. Naval War
College in Newport, Rhode Island, just before and after the September 11, 2001,
attacks.
26. See Yoram Dinstein, War, Aggression and Self-Defense (Cambridge: Cam-
bridge University Press, 2017, now in its sixth edition). Yoram Dinstein, The Con-
duct of Hostilities in the Law of Armed Conflict (Cambridge: Cambridge University
Press, 2016, third edition). Yoram Dinstein, Non-International Armed Conflicts in
International Law (Cambridge: Cambridge University Press, 2014). Yoram Din-
stein, The International Law of Belligerent Occupation (Cambridge: Cambridge Uni-
versity Press, 2009).
27. Schmitt claims that he was given unprecedented access to the Israeli opera-
tions center responsible for overseeing combat operations against Hamas. See
Noura Erakat, “If Israeli Tactics in Gaza Are Legal, No One is Safe: Response to
Michael N. Schmitt and John J. Merriam,” Jadaliyya, July 18, 2015.
Stanford University Press, 2019), 178–83.
29. It has been reported in the Israeli press that Israel has trained Colombian
and Nepalese mercenaries to fight on behalf of the United Arab Emirates in Yemen
and both the UAE and Saudi Arabia have purchased Israeli spyware, surveillance,
and monitoring systems. See Zvi Bar’el, “Yemen’s War Is a Mercenary Heaven. Are
Israelis Reaping the Profits?,” Haaretz, February 17, 2019.
30. Significantly, this was a view that was shared by American, and not only
Israeli, lawyers. See W. Hays Parks, “Perspective and the Importance of History,”
Yearbook of International Humanitarian Law 14 (2011): 361–82.
31. Although these actions are often thought of as being unique to Palestin-
ian groups, it was a strategy that was also employed by the Vietcong. See Heather
Stur, “The Vietcong committed atrocities too,” New York Times, December 19,
2017. This is not to downplay the fact that American and Jewish groups have also
resorted to terrorism in the past from groups like the Weathermen to Kahane
Chai. In November 2022, the government of prime minister Benjamin Netanyahu
formed a coalition with the Jewish Power Party (Otzma Yehudit) and appointed
Itamar Ben-Gvir, a former Kahanist, minister for national security. In May 2022,
the US State Department removed Kahane Chai from its list of foreign terrorist
organizations: https://www.state.gov/foreign-terrorist-organizations/
32. See Robert Alden, “Policy Shift by US at UN,” New York Times, September
12, 1972, 10.
33. Kaplan, Our American Israel, 127–28.
34. See John Quigley, “Legality of Military Action by Egypt and Syria in Octo-
ber 1973,” this volume.
37. Benjamin Netanyahu, Bibi: My Story (New York: Simon & Schuster, 2022),
174.
38. See Victor Kattan, “‘The Third World Is a Problem’: Arguments about the
Laws of War in the United States after the Fall of Saigon,” this volume.
39. The policy was encapsulated in National Security Decision Directive 138,
April 3, 1984, at 4, available on the website of the American Federation of Scien-
tists at: https://fas.org/irp/offdocs/nsdd/nsdd-138.pdf. Shultz’s speech calling for
a policy of active defense was later republished in an influential book edited by
Netanyahu. See George P. Shultz, “The Challenge to the Democracies,” in Ben-
jamin Netanyahu, ed., Terrorism: How the West Can Win (New York: Farrar, Straus,
Giroux, 1986), 16–24. According to Shultz, President Reagan read the book on a
trip to Tokyo “and had come back to the senior staff area several times from his
cabin on Air Force One to read passages to us that he particularly liked.” See George
P. Shultz, Turmoil and Triumph: My Years as Secretary of State (New York: Macmillan,
1993), 790n5.
40. See US Department of Defense: Report of the DOD Commission on Beirut
International Airport Terrorist Attack, October 23, 1983 (published on December
20, 1983).
41. See Brian Cuddy, “From Retaliation to Anticipation: Reconciling Reprisals
and Self-Defense in the Middle East and Vietnam, 1949–1965,” this volume. It
could also be argued that preventive war was part of Israel’s self-identity in that it
formed a decisive moment of its history when it was established as a state following
Ben-Gurion’s decision to begin the war of independence earlier than planned by
initiating the battle six weeks before the end of the mandate scheduled for midnight
on May 14–15, 1948, when the Arab states had planned to intervene. According to
Esber’s remarkable study, as early as December 1947, the Zionist leadership had
decided to embark on a policy of “offensive defense.” See Rosemarie M. Esber,
Under the Cover of War: The Zionist Expulsion of the Palestinians (Alexandria, VA: Ara-
bicus Books 2008), 173.
42. Cuddy, “From Retaliation to Anticipation.”
43. Cuddy, “From Retaliation to Anticipation.”
44. See Ashley Deeks, “Unwilling or Unable: Toward a Normative Framework
for Extra-Territorial Self-Defense,” Virginia Journal of International Law 52 (2011–
2012): 483–550. Olivier Corten, “The ‘Unwilling or Unable’ Test: Has It Been, and
Could It Be, Accepted?” Leiden Journal of International Law 29, no. 3 (2016): 777–99.
45. Shultz, Turmoil and Triumph, 678 citing Abraham D. Sofaer, “Terrorism and
the Law,” Foreign Affairs 64 (1986): 901–22.
46. Sofaer, “Terrorism and the Law,” 919.
47. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, ICJ Reports 2004, 194, para. 139. On the issue of whether
Article 51 can apply to attacks from nonstate actors see Christine Chinkin and
Mary Kaldor, International Law and New Wars (Cambridge: Cambridge University
Press, 2017), 157–61.
48. Quoted from Sofaer, “The United States and the World Court,” Proceedings
of the American Society of International Law 80 (1986): 207.
49. See Richard Falk, “Foreword: How International Law Evolves: Norms,
Precedents, and Geopolitics,” this volume.
50. See Madelaine Chiam and Brian Cuddy, “Public Discourses of International
Law: US Debates on Military Intervention in Vietnam, 1965–1967,” chap.3 this
volume.
51. See Stephen Neff, War and the Law of Nations: A General History (Cam-
bridge: Cambridge University Press, 2005), 386; Jackson Maogoto, Battling Terror-
ism (Aldershot, UK: Ashgate, 2005), 90; Tom Ruys, ‘Armed Attack’ and Article 51 of
the UN Charter: Evolutions in Customary Law and Practice (Cambridge: Cambridge
University Press, 2013), 422; Kattan, “The ‘Netanyahu Doctrine,’” 3–7; Christine
Gray, International Law and the Use of Force, 4th ed. (Oxford: Oxford University
Press, 2018), 170–75.
52. See George P. Shultz, “Hot Preemption,” adapted from remarks delivered at
the dedication of the George P. Shultz National Foreign Affairs Training Center in
Arlington, Virginia, on May 29, 2002, available online: https://www.hoover.org/re
search/hot-preemption. See also The National Security Strategy of the United States
of America (2002), 15 at https://2009-2017.state.gov/documents/organization/635
62.pdf. A. D. Sofaer, “On the Necessity of Pre-emption,” European Journal of Inter-
national Law 14, no. 2 (2003): 209–26. John Yoo, War by Other Means: An Insider’s
Account of the War on Terror (New York: Atlantic Monthly Press, 2006).
53. Robert Cooper, “The New Liberal Imperialism,” The Guardian, April 7,
2002.
54. Robert Cooper, The Breaking of Nations (New York: Atlantic Books, 2004),
17–18.
55. Cooper, The Breaking of Nations, 17–18.
56. Cuddy quotes Abram Chayes, who in 1961 advised that Article 51 of the UN
Charter could only be invoked in response to an armed attack. See Cuddy, “From
Retaliation to Anticipation,” this volume.
57. Daniel Bethlehem, “International Law and the Use of Force: The Law as It
is and Should Be,” memorandum submitted to the Select Committee on Foreign
Affairs, June 7, 2004, para. 32 at https://publications.parliament.uk/pa/cm200304
/cmselect/cmfaff/441/4060808.htm
58. See Shultz, Turmoil and Triumph, 645.
59. See The National Security Strategy of the United States of America (September
2002), 15 at https://2009-2017.state.gov/documents/organization/63562.pdf
60. The National Security Strategy of the United States of America, 15.
61. See A More Secure World: Our Shared Responsibility Report of the
Secretary-General’s High-level Panel on Threats, Challenges and Change, UN
Doc. 59/565, December 2, 2004, paras. 188–92 (“we do not favour the rewriting or
reinterpretation of Article 51.”)
62. See Victor Kattan, “Furthering the ‘War on Terrorism’ through Interna-
tional Law: How the United States and the United Kingdom Resurrected the Bush
Doctrine on Using Preventive Military Force to Combat Terrorism,” Journal on the

Use of Force and International Law 5, no. 1 (2018): 97–144.
63. See the statement by Israel’s UN Ambassador in UN Doc. S/PV.2288, June
19,1981, paras. 79–85.
64. Quoted by Yotam Feldman and Uri Blau in the Israeli newspaper Haaretz
on January 29, 2009, at https://www.haaretz.com/1.5069101. On whether interna-
tional law can really progress through violations see Kattan, “Furthering the ‘War
on Terrorism’ through International Law,” 123–30. On what really happened at the
UN after Israel’s 1981 raid on Iraq see Kattan, “The ‘Netanyahu Doctrine,’” 24–26.
65. Kattan “Furthering the ‘War on Terrorism’ through International Law.” See
also Legal Adviser Bellinger speech, “Legal Issues in the War on Terrorism,” Octo-
ber 31, 2006, London School of Economics at https://2009-2017.state.gov/s/l/20
06/98861.htm
66. House of Commons, August 29, 2013, cols. 1425–1547.
67. See Guglielmo Verdirame, “The Law and Strategy of Humanitarian Inter-
vention,” EJIL: Talk!, August 30, 2013. Verdirame’s partner, Henry Newman, is a
Conservative political adviser to Michael Gove MP, a British minister. Gove was
founding chairman of Policy Exchange, a right-of-center think tank, and a founding
member of the Henry Jackson society, a British-based neoconservative think tank
that “Believes that only modern liberal democratic states are truly legitimate; and
that the political or human rights pronouncements of any international or regional
organisation which admits undemocratic states lack the legitimacy to which they
would be entitled if all their members were democracies.” Gove has expressed open
support for preemptive wars, including Iraq in 2003, irrespective of the prohibition
on the use of such force in the UN Charter. See Michael Gove, “The Very British
Roots of Neoconservatism and its Lessons for British Conservatives,” in Irwin Stel-
zer (ed.), The Neocon Reader (New York: Grove Press, 2004), 271–88, at 274. In com-
mon with his neoconservative views, Gove admires the hardline stance adopted by
successive Likud governments in Israel toward the Palestinians and opposes Israel
having to “give up” land (that is, land, which it must be emphasized, is not Israel’s to
keep) for peace with the Palestinians. See Michael Gove, Celsius 7/7 (London: Wei-
denfeld & Nicolson, 2006), 51–62. In February 2020, Verdirame submitted a writ-
ten observation as amicus curiae to the International Criminal Court, with several
other lawyers, opposing the jurisdiction of the court to open an investigation into
Israeli war crimes in Israeli-occupied East Jerusalem, the West Bank, and Gaza,
despite Palestine being recognized as an observer state by the UN in November
2012. In the 2022 special honours list, Verdirame, who is King’s Counsel, and a
Professor of International Law at King’s College London in the Department of
War Studies, was awarded a life peerage as “Baron Verdirame, of Belsize Park in the
London Borough of Camden”: https://www.gov.uk/government/news/political-pe
erages-2022
68. Guglielmo Verdirame, “The ‘Sinews of Peace’: International Law, Strategy,
and the Prevention of War,” British Yearbook of International Law 77, no. 1 (2006): 95.
69. Verdirame, “The ‘Sinews of Peace,’” 83–162.
70. With regard for the need to adapt the law for drone technology, see, for
example, The Report of the Task Force on US Drone Policy (Washington, DC: Stimson
Center, second edition, 2015), https://www.stimson.org/wp-content/files/file-attac
hments/recommendations_and_report_of_the_task_force_on_us_drone_policy_se
cond_edition.pdf. John Bellinger III is listed as one of the task force members,
while Daniel Bethlehem is listed as a working group member.
71. Verdirame, “The ‘Sinews of Peace,’” 84.
72. On the US government’s failure to develop a lethal drone in the Vietnam
War and Israel’s success in developing such a drone in its wars in Egypt and Leba-
non, see Konstantin Kakeas, “From Orville Wright to September 11: What the
History of Drone Technology Says About Its Future,” in Peter L. Bergen and Dan-
iel Rothenberg, eds., Drone Wars: Transforming Conflict, Law, and Policy (Cambridge:
Cambridge University Press, 2015), 368–74.
73. This included the Bell UH- 1 Iroquois and AH- 1G HueyCobra attack
helicopters in Vietnam, and the remotely piloted drone pioneered by the Israeli
air force. The iconic Apache attack helicopter used all over the world from Iraq
to the Gaza Strip, evolved from the US Army’s “earlier, abortive attempt during
the Vietnam War to acquire a high-speed, heavily armed helicopter gunship—the
Lockheed AH-56 Cheyenne—to provide fire support for ground combat units and
protect rotary-wing aircraft transporting infantry, weapons, and supplies to forward
battle areas.” See Thomas C. Lassman, “Reforming Weapon Systems Acquisition
in the Department of Defense: The Case of the U.S. Army’s Advanced Attack Heli-
copter,” Journal of Policy History 25, no. 2 (2013): 173.
74. Kakeas, “From Orville Wright to September 11,” 374–75.
75. See Daniel Bethlehem, “Self-Defense Against an Imminent or Actual Armed
Attack by Nonstate Actors,” American Journal of International Law 106, no. 4 (2012):
770–77. Daniel Bethlehem, “The Secret Life of International Law,” Cambridge
International Law Journal 1, no. 1 (2012): 23–36.
76. See the statement by Australia’s attorney general George Brandis QC
explaining that Australia has adopted the Bethlehem Principles test of an imminent
threat of attack, online at https://www.ejiltalk.org/the-right-of-self-defence-again
st-imminent-armed-attack-in-international-law/#_ftn7
77. Julian Borger, “Latin Americans fear precedent set by legal justification for
Syria intervention,” The Guardian, April 2, 2019.
78. See Kattan, “Furthering the ‘War on Terrorism’ through International Law.”
114–23.
114–23.
81. See Bart Barnes, “Obituary: John B. Bellinger Jr,” Washington Post, January
10, 2012, B5.
82. See John B. Bellinger III, biography on the website of Arnold and Porter
LLP at https://www.arnoldporter.com/en/people/b/bellinger-john-b
83. Bethlehem’s wife, Ady Schonmann-Bethlehem, was the Deputy Head of the
International Law Department in the Office of the Legal Adviser of the Israeli
Ministry of Foreign Affairs in Jerusalem for many years. See her profile on the
website of King’s College London, where she is a Visiting Professor in the Dickson
Poon School of Law and in the Department of War Studies (where her husband
is also a Visiting Professor): https://www.kcl.ac.uk/people/ady-schonmann-bethl
ehem. On Bethlehem’s role advising Israel during the ICJ Wall proceedings (2003–
4) before he took up his FCO post, see Ewan MacAskill, “Israel adviser switches
to top FO job,” The Guardian, March 7, 2006. On Bethlehem’s legal advice to the
ICJ in the Wall advisory opinion, which he wrote with Alan Baker and Ruth Lapi-
doth, see the series of articles published on the website of Haaretz in January 2004
by Nathan Guttman, Aluf Benn, and Gideon Alon. On his advice to the Sharon
government over the Jenin killings, see Chris McGreal, “Israelis dub Jenin probe
‘anti-Semitic,’” The Guardian, April 28, 2002. Bethlehem is also on the board of
Palantir, a data mining and predictive analytics company, and the company is a
client of Daniel Reisner, at the law firm of Herzog, Fox, and Neeman in Tel Aviv.
Reisner’s other clients include Elbit systems, Boeing, Lockheed Martin, and Pratt
& Whitney. Reisner’s CV is available online: http://www.intjewishlawyers.org/site
/wp-content/uploads/2018/01/Daniel_Reisner.pdf
84. See the written evidence submitted to the House of Commons Select Com-
mittee on Foreign Affairs by Daniel Bethlehem QC, Director of Lauterpacht
Research Centre for International Law, University of Cambridge (7 June 2004),
www.publications.parliament.uk/pa/cm200304/cmselect/cmfaff/441/4060808
.htm, para 35(a). See also Bethlehem’s response to a questionnaire published by
Elizabeth Wilmshurst when she was formulating The Chatham House Principles on
the Use of Force, www.chathamhouse.org/publications/papers/view/108106, p. 41
(emphasis added). Bethlehem’s name did not appear in The Chatham House Principles
when they were published, indicating that he did not agree with the formulation of
self-defense adopted by the other international lawyers involved in formulating the
principles. See Elizabeth Wilmshurst, “The Chatham House Principles of Interna-
tional Law on the Use of Force in Self-Defence,” International and Comparative Law
Quarterly 55 (2006): 963.
85. See James Mann, Rise of the Vulcans: The History of Bush’s War Cabinet (New
York: Viking, 2004).
86. See Nominations before the Senate Armed Services Committee, First Ses-
sion, 107th Congress, S. Hrg. 107–749 (January–December 2001), online: https://
www.govinfo.gov/content/pkg/CHRG-107shrg75903/html/CHRG-107shrg759
03.htm. Wolfowitz’s connections to Israel are also addressed in Mann, Rise of the
Vulcans.
87. Other influential individuals in the Reagan, Bush, and Trump administra-
tions with close connections to Israel include Elliott Abrams and John Bolton. On
Abrams’s connections see Elliott Abrams, Tested by Zion: The Bush Administration and
the Israeli-Palestinian Conflict (Cambridge: Cambridge University Press, 2013), at 59
where Abrams addresses his neoconservatism. On Bolton, see John Bolton, Surren-
der Is Not an Option: Defending America at the United Nations (New York: Simon and
Schuster, 2008).
88. See Michael Thomas, American Policy Toward Israel: The Power and Limits of
Beliefs (New York: Routledge, 2007).
89. See the chapter by Kattan, “‘The Third World Is a Problem,’” this volume.
90. See Benjamin Netanyahu, ed., International Terrorism: Challenge and Response
(Jerusalem: The Jonathan Institute, 1980). Benjamin Netanyahu, ed., Terrorism:
How the West Can Win (New York: Farrar, Straus, Giroux, 1986). Benjamin Netan-
yahu, Fighting Terrorism: How Democracies can Defeat the International Terrorist Net-
work (New York: Farrar, Straus and Giroux, 2001). Ben Caspit and Ilan Kfir, Netan-
yahu: The Road to Power (New York: Citadel Press, 1998). Netanyahu’s influence in
the United States remains enormous. Consider the standing ovation he received
before both Houses of Congress in 2015 when he openly criticized a sitting US
president. On Netanyahu’s recollections of this speech see Netanyahu, Bibi, 527–
39.
91. Netanyahu, Bibi, 151–52.
92. Netanyahu, Terrorism: How the West Can Win, 204–5.
93. Netanyahu, Terrorism: How the West Can Win, 204–5.
94. Neve Gordon and Nicola Perugini, Human Shields: A History of a People in
the Line of Fire (Berkeley: University of California Press, 2020), 171. Gordon and
Perugini also note the similarity of the Israeli language justifying Operation Pro-
tective Edge to arguments made by the Italian government during the 1935–36 war
in Ethiopia.
95. See Amanda Alexander, “Revolutionary War and the Development of Inter-
national Humanitarian Law,” this volume.
96. See Tor Krever, “From Vietnam to Palestine: Peoples’ Tribunals and the
Juridification of Resistance,” this volume.
97. Alexander, “Revolutionary War.”
98. See Ihab Shalbak and Jessica Whyte, “The War Against the People and the
People’s War: Palestine and the Additional Protocols to the Geneva Conventions,”
this volume.
99. The difficulty of this issue has also bedeviled the ICRC. See Nils Melzer,
Interpretive Guidance on the Notion of Direct Participation in Hostilities under Interna-
tional Humanitarian Law (Geneva: ICRC, 2009). But see Hays Parks, “Part IX of
the ICRC ‘Direct Participation in Hostilities’ Study: No Mandate, No Expertise,
and Legally Incorrect,” New York Journal of International Law and Policy 42, no. 3
(2010): 769–830.
100. See, for example, Gordon and Perugini, Human Shields, 170–78.
101. See, for example, Yarno Ritzen, “How armies of fake accounts ‘ruined’ Twit-
ter in the Middle East,” Al Jazeera, July 15, 2019. While the Russians, Chinese,
Emiratis, and Saudis are often blamed for these tactics, we know that Western
democratic states also employ them. See, for example, Amanda Holpunch, “US
immigration police broke Facebook rules with fake profiles for college sting,” The
Guardian, April 11, 2019. In 2015, the British Army announced the creation of the
77th Brigade, a psychological operations unit responsible for “non-lethal” warfare
that reportedly uses social media to “control the narrative,” as well as disseminating
UK government-friendly podcasts and videos. See Laurie Clarke, “Twitter needs to
start exposing the UK’s murky online propaganda,” Wired, October 8, 2019.
102. W. Hays Parks, “The ICRC Customary Law Study: A Preliminary Assess-
ment,” Proceedings of the American Society of International Law 99 (2005): 208–12.
103. Hays Parks, “The ICRC Customary Law Study,” 209.
105. Consider the political views Parks expressed in W. Hays Parks, “Air War and
the Law of War,” Air Force Law Review 32 (1990): 63–111. W. Hays Parks, “Exagger-
ated or One-Sided Claims of Law of War Violations,” in John Norton Moore, ed.,
Deception and Deterrence in “Wars of National Liberation,” State-Sponsored Terrorism
and Other Forms of Secret Warfare (Durham: Carolina Academic Press, 1997), 103–
26.

107. Olivier Corten, The Law against War: The Prohibition on the Use of Force in
Contemporary International Law (Oxford: Hart Publishing, 2012), 13.
108. Corten, The Law against War, 13.
109. See, generally, Michael Byers and Georg Nolte, eds., United States Hegemony
and the Foundations of International Law (Cambridge: Cambridge University Press,
2003).
110. John B. Bellinger III and William J. Haynes II, “A US government response
to the International Committee of the Red Cross study Customary International
Humanitarian Law,” International Review of the Red Cross 89 (2007): 443–71, at 445.
111. This is explored in the chapter by Kattan, “‘The Third World Is a Prob-
lem.’”
112. Nico Krisch, “After Hegemony: The Law on the Use of Force and the
Ukraine Crisis,” EJIL Talk!, March 2, 2022, https://www.ejiltalk.org/after-hegemo
ny-the-law-on-the-use-of-force-and-the-ukraine-crisis/
113. Richard Falk, “The Cambodian Operation and International Law,” in Rich-
ard A. Falk, ed., The Vietnam War and International Law, Volume 3: The Widening
Context (Princeton: Princeton University Press, 1972), 55–56.
115. President Putin referred to “precedents,” such as NATO’s aerial bombard-
ment of Serbia in 1999, and US support for regime change in Iraq, Libya, Syria, and
so on to justify his decision to initiate a “special military operation” in Ukraine. See
Address by the President of the Russian Federation, February 24, 2022, at http://en
.kremlin.ru/events/president/news/67843
116. Chinkin and Kaldor, International Law and New Wars, 167.
Acknowledgments
This book emerged out of a workshop, The Vietnam and Arab-Israeli Con-
flicts: International Legal Migrations, Comparisons, and Connections, hosted
in Singapore on December 6, 2018. The workshop was organized by the
Transsystemic Law Research Cluster at the Middle East Institute (MEI),
an autonomous research institute at the National University of Singapore,
in conjunction with the Department of Security Studies and Criminol-
ogy at Australia’s Macquarie University. We would like to acknowledge
the financial support provided to the Transsystemic Law Research Cluster
by the MEI, and the support of colleagues, especially Bilahari Kausikan,
Engseng Ho, Michelle Teo, Carl Skadian, Ang Cheng Guan, Francesco
Mancini, Sinja Graf, Sharon Koung, Jamaliah Jamal, the late Rommel Her-
nando, and Priyaa Vasudevan.
All the speakers who presented at the Singapore workshop are contrib-
utors to the present volume, including Richard Falk, whose comprehensive
foreword is based on his keynote lecture at the workshop. We are grateful
to all of them for their timely contributions and for making the workshop
such a great success. In addition, following peer review we solicited two
extra chapters from Craig Jones and Tor Krever. We are grateful to them
for their contributions. Our thanks also go to the team at the University
of Michigan Press who have supported this project through to publica-
tion, including acquisitions editor Elizabeth Demers and editorial associate
Haley Winkle; Law, Meaning, and Violence series editors Martha Minow
and Austin Sarat; the two external peer reviewers who provided valuable
feedback on an early version of the manuscript, as well as the revised manu-
291
292 Acknowledgments
script; production editor Kevin Rennells; and the supporters of Michigan’s

open access publishing program.
Working on an edited volume is a challenging task, made even more dif-
ficult in our case by delays associated with the Covid-19 global pandemic.
We have navigated those challenges together, with each editor bringing
complementary disciplinary and regional expertise to the project. While
the editors’ names are listed alphabetically, the book is the product of a
genuine joint enterprise based on equal partnership. The same is true for
each of the four coauthored chapters within the book. Finally, allow us to
express our immense gratitude to our wives Jess and Amrita for their love
and support, and to our children to whom we dedicate this book.
B.C. & V.K.

Contributors
Amanda Alexander is Senior Lecturer at the Australian Catholic Univer-

sity. Her publications include “A Short History of International Law,” pub-
lished in the European Journal of International Law, and “The ‘Good War’:
Preparations for a War Against Civilians,” published in Law, Culture and
the Humanities.
Madelaine Chiam is Associate Dean Learning and Teaching and Associate

Professor at La Trobe Law School. She is the author of International Law in
Public Debate (Cambridge University Press, 2021).
Brian Cuddy is a historian of US foreign relations and Lecturer in Secu-

rity Studies at Macquarie University in Sydney, Australia. He is the editor,
with Fredrik Logevall, of The Vietnam War in the Pacific World (University
of North Carolina Press, 2022).
Richard Falk is Albert G. Milbank Professor of International Law Emeri-

tus, Princeton University and author of Public Intellectual: The Life of a Citi-
zen Pilgrim (Clarity Press, 2021). He served as UN Special Rapporteur for
Occupied Palestine between 2008 and 2014.
Craig Jones is the author of The War Lawyers: The United States, Israel, and
Juridical Warfare (Oxford University Press, 2020) and Senior Lecturer in
Political Geography in the School of Geography, Politics, and Sociology at
Newcastle University. He researches the legal and medical materialities of
war and conflict in the contemporary Middle East.
293
294 Contributors
Victor Kattan is Assistant Professor at the School of Law in the Faculty of

Social Sciences at the University of Nottingham. He is the author and edi-
tor of three books on the conflicts in the Middle East, including as editor,
with the late Peter Sluglett, of Violent Radical Movements in the Arab World:
The Ideology and Politics of Non-State Actors (Bloomsbury, 2019).
Tor Krever is Assistant Professor at the University of Warwick School

of Law, where his research focuses on the theory and history of interna-
tional law. He is currently completing a book on the figure of the pirate in
international legal thought and is co-general editor of the London Review of
International Law.
John Quigley is Professor Emeritus at the Moritz College of Law, The

Ohio State University. His most recent books are Britain and Its Mandate
over Palestine: Legal Chicanery on a World Stage (Anthem Press, 2022) and
The Legality of a Jewish State: A Century of Debate over Rights in Palestine
(Cambridge University Press, 2021).
Ihab Shalbak is Lecturer in the Department of Sociology and Social Pol-

icy at the University of Sydney. His research examines the relation between
dominant forms of knowledge and politics, and has been published in Post-
colonial Studies and Thesis Eleven among other outlets. He is currently com-
pleting a book that traces the emergence of the think tank form.
Jessica Whyte is Scientia Associate Professor of Philosophy at the Uni-

versity of New South Wales. She is the author of Catastrophe and Redemp-
tion: The Political Thought of Giorgio Agamben (SUNY Press, 2013) and The
Morals of the Market: Human Rights and the Rise of Neoliberalism (Verso,
2019), and an editor of Humanity: An International Journal of Human Rights,
Humanitarianism and Development.
Index
Abi-Saab, Georges, 122, 127, 132, 160, 192–93; Aldrich responds to,
161, 163 181–82
Abu Mayzar, Mahammad, 159 Sofaer complaint with specific aim at
Additional Protocol I (AP1) to the PLO, 188
Geneva Conventions of 12 August United States signed, 174, 274
1949, 132, 146 Aggression, pattern of
Article 1 (4), 178, 191 insurgent attacks on Pleiku, 45
Article 44, 146 Israel’s argument, 32–38
Article 50, 132 Meeker’s observation, 46
Article 51, 132 Rusk instruction to US embassy,
Article 85.4(a), 184 43–44
initial review by Joint Chiefs and, 177 South Vietnam, 46–47
Israel voted against Article 1, 174 Stevenson argument: Flaming Dart
legitimate concerns by Israel and strikes, 45; Gulf of Tonkin, 44–45
South Africa, 184 Akrabim, Ma’ale, 35, 37
license to terrorism, 148 al-Hout, Shafiq, 157
national liberation movements, victory al-Wazir, Khalil, 154, 156
for, 146 Aldrich, George H., 131, 132, 163, 174,
New York Times, front page, 182 176, 177, 179, 181, 192, 194, 274
opposition to, 133–34 Alexander, Amanda, 17, 112, 164, 194,
President Reagan and refusal to send 275, 276
to Senate, 179–80 Alford, Neill, 61, 63
ratification: delayed, 176–77; Joint Algerian Red Crescent, 160
Chiefs, opposed by, 177–79; State Ali, Tariq, 242
Department legal adviser, view of, American Bar Association (ABA)
180–81; United States refusal, 173 supporter of US actions in Vietnam,
Reagan administration: Neoconserva- 63
tives and Vietnam War veterans, Arab Hanoi, 155–58
295
296 Index
Arab-Israeli conflict, 1, 189 Capua, Yoav, 155

American popular culture, 262–65 Carnahan, Burrus, 126
background, 12–14 Carter, Jimmy, 19, 173, 175, 176, 186,
common enemy, 266–68 194
law of war, impact on, 265 Chamberlin, Paul, 9, 122, 155
scholarship and training programs, Chayes, Abram, 40, 42
citations in, 265–66 Chiam, Madelaine, 56, 57, 266
shaping law of war, influence on, Christmas Bombing, 126
262–63 Civilian
younger generations of scholars, Additional Protocol I, to the Geneva
affected by, 264 Conventions of 12 August 1949,
Arafat, Yasser, 10, 29, 122, 155, 156, 159, Article 50, 132
160, 161, 185, 245 post-1977 law, 276
Armaly, Chawki, 128, 130, 147, 148, 159, pre-1977 law, 276
161, 162 Rule 5 in ICRC list, defined in, 112
Armed conflict, traditional laws of, Combatants
Hague Convention (IV) Respecting Rule 4 in ICRC list, 112
the Laws and Customs of War on Rule 6 in ICRC list, 112
Land (1907), 275 Consultative Council of the Lawyers
Article 25, 115, 125 Committee on American Policy
Article 26, 116 Towards Vietnam, 64–65
Boer farms, destruction of, 117 antiwar position, support for, 65
common military strategy, 117 legal brief, 65
guerrilla warfare, 113–14 Coupe, Dennis, 215
Hague Peace Conferences, 114 Crown, Joseph, 59, 60, 64, 73
Martens clause, 114–15
Vietnam and Palestine, revolutionary Dahiya Doctrine, 219
war in, 117–22 Darwish, Mahmoud, 149, 150, 153
Asia Treaty Organization (SEATO), 66 Davis, Monnett, 30, 31
Atherton, Roy, 96 Dayan, Moshe, 10, 11, 30, 34, 35, 156
de Cuellar, Javier Perez, 95
Balfour Declaration, 150, 151 de Gaulle, Charles, 237
Barat, Frank, 247, 248, 253 Dedijer, Vladimir, 233
Baxter, Richard R., 61, 63, 176 Derrida, Jacques, 235
Bedjaoui, Mohammed, 160 Deutsch, Eberhard P., 63
Bellinger, John, II, 273 Dinstein, Yoram, 48, 79, 145, 146, 148,
Bellinger, John, III, 273 165, 266
Ben-Gurion, David, 29, 30, 31, 34, 36, 37 Diplomatic Conference on the Reaf-
Bethlehem, Daniel, 273 firmation and Development of
Black Arrow operation, 37–38 International Humanitarian Law
Boumediene, Houari, 159 Applicable in Armed Conflicts, 126–
Bouteflika, Abdelaziz, 161 33, 146–49, 161–64, 175, 183–86
Bowett, Derek, 36, 48 civilian protection, 133
Boycott, Divestment and Sanctions combatant rights for guerrillas, 132,
(BDS), 246, 253 179
British Mandate of Palestine, 3, 150, guerrilla fighters, debate about, 130–
189, 217 31, 178, 181
Bundy, McGeorge, 42, 43, 46, 47 ICRC preparation for the conference,
Byrnes, Andrew, 240 127
Index 297
imperialism, 129 Syria’s complaint to Security Council,

Israel’s opposition to PLO admission, 91
128 UN Charter Article 51, 90–91, 101
national liberation movements, inclu- UN General Assembly, 91
sion of, 127–28, 180 Eisenhower, Dwight, 13, 60
new provision, 130 Eisenkott, Gadi, 219
result, 134–35 Erakat, Noura, 5, 159, 254, 266
review by Joint Chiefs in 1982, 177 Eshkol, Levi, 92, 93
review by Joint Chiefs in 1985, 178
satisfied US delegates, 133–34, 174 Falk, Richard, 5, 7, 12, 56, 64, 65, 70, 71,
traditional model of armed conflict, 77, 78, 124, 246, 251, 261, 263–65
discussion of, 147 Fatah, 10, 118, 151, 154, 155, 159, 217
Vietcong inclusion and controversies, Federici, Christopher, 247
128, 183, 185 Feinberg, Nathan, 103
view of Joint Chiefs of Staff, 177–79 Feith, Douglas, 174, 177, 179, 182, 184,
Western delegations, 130, 184 191, 274
Direct participation in hostilities, 134, critique and front page of New York
145 Times, 182
Dinstein argument for continuum Finklestein, Menachem, 217
approach, 145 First Indochina War, 13
Dobrynin, Anatolii, 97, 105 First World War
Drory, Ze’ev, 30, 35 antiwar activism, 233
Dugard, John, 245, 263, 264 Appeal to American Conscience, 233
political mobilization through appeals,
Easter Offensive, 209, 277 234
Eban, Abba, 32, 33, 34, 36, 37, 38 Fried, John H. E., 64
Egypt and Syria, military action in 1973 Front de Liberation Nationale (FLN),
force used to recapture occupied ter- 160
ritory, 99–100; belligerent occupa-
tion, 100; US Central Intelligence Geneva Accords, July 1954, on the Ces-
Agency, assessment by, 99 sation of Hostilities in Viet-Nam, 4,
legality, 87–89 13, 66, 67, 68, 70
October 6, 1973, 95–98 Geneva Convention, relative to the
recover territory, use of force to, Protection of Civilian Persons in
104–5 Time of War of 12 August 1949,
regain territory, efforts to, 93–95 115, 116–17
Security Council: Article 51, 101; Gerson, Allan, 174, 177, 184, 186, 190,
India view on failure, 102; need to 191, 192, 205
utilize, 101–4 Glubb, John, 29
Security Council, role in, 89 Goldstone, Richard, 5, 240
—and Israel committed aggression, Graham, David, 212
89–93 Graham, Lindsay, 8
cease-fires, 90 Green Line, 15, 28
Cyprus’s viewpoint, 92 Guerrilla warfare, 113–14
hostilities in 1973, 89, 90
Resolution 242, xiv, 92, 93, 102, 103, Habash, George, 9
151, 152, 158 Handal, Jorge Shafik, 189
Resolution 338, 98, 104, 158 Hathaway, Oona, 1, 2, 3
Security Council of UN, action of, 90 Hawatmeh, Nayef, 158
298 Index
Hezbollah, 219 Committee: relations with Republi-

Ho Chi Minh, 9, 13, 265 can Spain, 59, 60
peaceful settlement, commitment to,
Imperialism and colonialism 60
Anghie, Antony, defined by, 250 public conversation (1965–67), 65–
International Committee of the Red 66
Cross (ICRC), 112, 145 State Department memorandum, 42,
International Humanitarian Law (IHL), 62, 66–67, 69
112 International Law Department of Israel
International law military, 216
additional protocols, politics of, International terrorism. See also Interna-
274–76 tional law
American popular culture, 262–65 common threat perception, 272–74
anti-imperialism and self- first war against, 268–70
determination, principles of, 250 reforming law, 271–72
Arab Hanoi, 155–58 second war against, 270–71
assault through, 223–25 Israel-Jordan Mixed Armistice Commis-
customary, formation of, 278, 279 sion (MAC), 34
farmer by day, fighter by night, Israel’s Reprisal Policy
152–54 —emergence of, (1949–53), 28
foregrounded by lawyers, 251 active defense policy, 30
global rules, making and breaking, defensive measures to counter infiltra-
278–80 tion, 28
hegemonic approach by US, 278–79 early operations, 29
Hilary Charlesworth’s view on, 252 Green Line, 28
imperialism and colonialism, 250 infiltration and Israel’s responses, 28
law and politics, 253–55 meaning of infiltration, 33
law revision attempts, 271–73 Qibya raid, 30–32
legalism, principled opportunism to, Sharafat raid, 29
248–53 Suez Crisis, 28
lessons learned from Vietnam, 276–78 United States’ warning, 30
new law of people’s war, 161–64 —moderating and justifying (1954–56),
operationalizing, 207 33–39, 36
precedent, 278 Black Arrow operation, 37–38
principled opportunism and, 242–44 draft resolution by British govern-
question of legality/illegality, 249 ment, 37
skepticism about power, 249 first test, 35
states in exile, 158–61 Knesset foreign affairs debate, 34
undoing of Palestine, 149–52 Nahhalin raid, 35–36
Vietnam to Palestine, 244–48 security, ineffective tools in advanc-
violations and US role and views, 279 ing, 34
war and shaping of, 261
International law and public debate in Jarring, Gunnar, 93, 94, 103
US, 56 Johnson, Lyndon, 13, 41, 57, 58, 60, 62,
characterizations, 72–79 63, 72, 73, 74, 205, 210, 234, 236,
legal justification for international 237, 263
audience, 58 Jones, Craig, 19, 207, 291
legality of actions in Vietnam, 64
National Lawyers Guild and Lawyers Kataib Hezbollah, 26
Index 299
Kattan, Victor, 18, 133, 173, 224, 225, Long, Russell, 61

261, 267 Lysaght, Charles, 130, 184
Kelsen, Hans, 103
Kennedy, David, 73 Machold, Rhys, 11
Kennedy, John, 13, 39, 60, 191, 204, Machover, Daniel, 247, 248, 253
205 Manila Pact, 69
Keys, Barbara, 6 Mantilla, Giovanni, 130
Khalili, Laleh, 11, 218, 224 Mao’s model of revolutionary war,
Khrushchev, Nikita, 39 118–19
Kirkpatrick, Jeane J., 186, 189, 190 People’s role in, 119–20
Kissinger, Henry, 97, 99, 181 rules and discipline, 119
Klinghoffer affair (1986), 187, 268 Martens clause, 114–15
Klinghoffer, Leon, 187 Martens, Fyodor, 114, 115
Klinghoffer, Judith, 243 massacre
Knesset foreign affairs debate, 34 Deir Yassin, 10, 33, 155
Krever, Tor, 19, 233, 276, 291 My Lai, 10
Mayda, Jaro, 65, 67
Laboratory concept McDougal, Myres S., 61, 63
Eyal Weizman’s observation on Gaza, McNamara, Robert, 41, 44
11–12 McPherson, Harry, 61
Machold’s views on, 11 Meeker, Leonard C., 42, 43, 44, 45–48,
Middle East conflicts, 10–12 62, 64, 69, 70, 73, 74
professionalization, 11 Middle East conflicts
war, 10–11 accumulation of events doctrine, 15
Lapidoth, Ruth, 164, 165 armed conflicts, 7
Larson, Arthur, 60, 75 colonial origins, 14
Law of the Sea Convention, 187 demarcation line, 15, 28
Law of War Program, 208. See Opera- First Arab-Israeli War, conclusion, 15
tional law history connected with Vietnam War,
Lawyers Committee on American Policy 8–12
Towards Vietnam horizontal circuits, 11
argument: based on Geneva Accords, human rights politics, 6
68; law of self-defense, 68–69; international law, role in initiation,
Manila Pact, 69 5–6
collective self-defense, 66–67, 68 legal arguments in, 5
endorsements for, 64 Machold’s views on laboratory con-
flippant dismissal of memorandum, 61 cept, 11
Johnson administration, attention military action by Egypt and Syria,
from, 61 16–17
law of self-defense, extending, 68–69 Palestinian Revolt suppression (1936–
main audiences, 60–61 39), 11
memorandum, American Policy Vis-à- Palestinian territories, Israel’s settle-
Vis Vietnam, 59 ments in, 5
memorandum, basis of argument, political situation in Palestine, 14
61–62 professionalization, laboratory of, 11
Legal black holes, 3 Six-Day War, 15, 16, 71, 78, 263
Lewy, Guenter, 4 United States and Israel, links
Lieber Code of 1863, 213 between, 10
Lodge, Henry Cabot, Jr., 43, 234 war, laboratory for, 10–11
300 Index
Military Advocate General (MAG), 216 Operation Linebacker, 210

legal memorandum, 219 Operation Linebacker II, 210
Mitchell, George, 217 Operation Protective Edge, 275
Modirzadeh, Naz, 6, 7, 263 Operational law, 19, 208, 213, 215
Moita, Luis, 235 habit of destruction, 218–23
Moore, John Norton, 56, 63, 65, 67, 76, institutional responses by US military,
78, 266 215
Moorman, William, 210 inventing, 212–15
Morris, Benny, 28–29, 32, 37, 38 rebranding of laws of war, 213
Morse, Wayne, 59, 60, 61, 64, 70, 74 Operational legality, 214
Moyn, Samuel, 5, 8, 59 OPLAW, 214
Moynihan, Daniel Patrick, 185, 186 Organization of Solidarity of the
Peoples of Africa, Asia and Latin
Nahhalin raid, 35–36 America (OSPAAAL), 157
Israeli reprisal measure, reasonable-
ness of, 36 Palestine Liberation Front, 187
National Lawyers Guild (NLG), 59 Palestine Liberation Organization
Republican Spain, support for, 59 (PLO), 9, 12, 16, 18, 47, 98, 113,
National Liberation Front (NLF), xiv, 128, 146, 147, 148, 149, 152, 154,
10, 13, 17, 40 155, 157, 158, 159, 160, 161, 162,
National liberation movements, 12, 18, 165, 180, 182, 183, 184, 185, 187,
19, 113, 122, 127, 128, 129, 130, 188, 189, 191, 192
146, 161, 174, 175, 183, 186, 190, Begin’s view of, 184
245, 255 belatedness of struggle of, 146
Neoconservatism, 182, 189 chairman addressed UN General
Neoconservatives, 19, 174, 175, 181–83, Assembly, 160–61
185, 186, 188, 191, 192, 194 claim on AP1, 180
Netanyahu, Benjamin, 165, 190, 267, conference’s Final Act, signing, 161
274–75 forced into exile, 18, 165
New Haven school of international law, inclusion in debates, question of, 127
71 International admission and recogni-
Ngo Dinh Diem, 13, 39, 60 tion, 160
Nguyen, Lien-Hang, 9 Israel opposed admission, 128
Nguyen Thi Binh, Madame, 9 Israel, diplomatic and political rela-
Nguyen Van Huong, 147, 162 tions with, 18
Nguyen Van Luu, 163 Klinghoffer affair in 1986, 268
Nicaragua case legitimate concerns with AP1, 184
first phase, 189–90 murder organization, 192
second phase, 190–92 novel definition of civilian, 276
Nicaraguan mission, 9 protection of civilians, focused on, 162
Nixon, Richard, 97, 174, 183, 210, 274 Resolutions 3236 and 3237, 122
Sofaer complaint with specific aim
Oglala Sioux, 149 at, 188
Ohlin, Jens David, 208 Parks, W. Hays, 133, 174, 177, 179, 182,
Operation Cast-Lead, 219–20, 221, 245 183, 210, 211, 214, 274, 277, 278,
planning began, 220 279
war crimes identified by Russell Tri- Pitzul, Jerry S. T., 214
bunal on Palestine, 249 Popular Front for the Liberation of
Operation Defensive Shield, 219 Palestine (PFLP)
Index 301
Arab Hanoi, establishment of, 10 Resolution 3103, 121

argument by George Habash, 9–10 war of liberation, 119
power to Israeli military, 10 Roa, Raul, 157
Roberts, Anthea, 6
Qibya raid, 30–32 Rolling Thunder, operation, 209, 210
Knesset foreign affairs debate, 34 military objective, 209
Resolution 101, 33 Rosenne, Shabtai, 93, 185
Rostow, Eugene, 103, 174, 191, 274
Rabin, Itzhak, 93 Rostow, Walt, 39, 191
Rambo-style, 187 Rusk, Dean, 43, 44, 61, 62, 66, 67, 69,
Reagan Doctrine, 186 74, 236
Reagan, Ronald, 19, 20, 173, 174, 175, Russell, Bertrand, 19, 123, 233, 234,
178, 179–80, 181–82, 184, 186–87, 236–38, 240–42, 244, 245, 250
191, 268–70, 274 Russell Tribunal on Palestine
Reisner, Daniel, 216–18, 271 Cape Town session, 252
Reprisals, 115, 116, 123, 128, 133, 147, evaluating and applying international
163, 178, 181, 275 law, 249
Israel’s reprisal policy, 15, 28–30, jury gathering, 245
34–36, 37 legalistic approach, 249
Israel’s reprisal operations, 15, 71, 154 Richard Goldstone’s complaint, 240
Reprisals, and US policy debate over use testimony on issues in Barcelona,
of reprisals in Vietnam (1961–65), 245–46
39–43, 58 Rutland, Benjamin, 220
antiwar Lawyers Committee, 42
attacks against Hanoi, 40 Sartre, Jean-Paul, 124, 233, 236, 237,
background by Rusk on not using the 238, 239, 240–42, 241–44, 243, 244,
term, 43 248, 250, 252
March 1966 memo, 42 Sayegh, Fayez, 150, 151, 152, 154
new challenges for Washington, 39 Sayigh, Yazid, 9, 120, 158
North Vietnamese torpedo boats Schelling, Thomas, 41
attack, 41 Schmitt, Michael, 266
rejection of retaliation, 43, 58 Second Arab-Israeli War, 28
small-scale shallow raids, 40 Second Indochina War, 1
wars of liberation, 39 Second Intifada
Resolution 242, 92 legally sanctioned violence, 215–18
Israel’s reliance on, 103 Security Council Resolution 338, 104
Resolution 2649, 121 Segev, Tom, 34
Resolution 3103, 121 Senate Foreign Relations Committee, 56
Revolutionary war, 117–22 Shalbak, Ihab, 3, 17, 145, 276
alternative model, 118 Shapiro, Scott, 1, 2, 3
crux of problem, 121 Sharafat raid, 29
Diplomatic Conference at, 126–34 Sharon, Ariel, 31, 165, 181
fighting alien domination, 121 Shultz, George, 173, 174, 182, 188, 189,
guerrilla warfare, 120–21 190, 268, 269, 271, 274
imperialism as crime, 122 Simm, Gabrielle, 240
Mao’s model, 118–19 Six-Day War, 16, 71, 78, 263
Measures to Prevent International Smith, Michael, 214
Terrorism, 122 Sofaer, Abraham, 180, 181, 182, 188,
Resolution 2649, 121 190, 193, 269, 274
302 Index
Solf, Waldemar, 176 Vessey, John W., 183

Southeast Asia Treaty Organization Viet Minh, 13
(SEATO), 66 communist core, suspicion of, 13
act under Article 51 and 53, 69 Geneva Accords, 13
Meeker memorandum, 69 People’s Republic of China, support
Soviet Union, x, 6, 19, 33, 88, 91, 104, to, 13
134, 175, 176, 182, 183, 185, 186, Vietnam syndrome, 174, 271
187, 189, 192, 193, 194, 267 Vietnam War, 1, 16. See also Middle East
State Department memorandum conflicts
legal arguments, 66–67 American popular culture, 262–65
no supporting legal authorities, 67 armed conflicts, 7
North Vietnam violated Geneva arrogant brutality of US, 244–45
Accords, 66 background, 12–14
Stewart, Luke, 65 bombing campaigns, 209
Strategic Hamlet program, 117 causative factors, 113
Suez Crisis, 28 common enemy, 266–68
Israel’s defense, 38–39 crimes tribunal for, 236–39
Israel’s Sinai campaign, 38 critical year of 1967, 16
UN General Assembly special session, Easter Offensive, 209
38 First Indochina War, 13
Suleimani, Qassim, 26 history connected, 8–9
Swiss Federal Council, 146 human rights politics, 6
international law rationales, Ameri-
Taylor, Maxwell, 39 cans involvement, 4
Taylor, Telford, 77, 125 international law scholarship, 6
Tel Aviv, 20, 30, 31, 34, 36, 218, 245, 266 law and politics, 239–42
Ten Point Program, 158 law of war, impact on, 265
“Third Worldism,” 19 legal issues, 209
Traditional model of armed conflict Lyndon B. Johnson administration,
Palestinian and North Vietnamese role of, 57
view on, 147 My Lai massacre, 209
US military lawyer’s views, 147 Netanyahu’s reasons and Western
Truman, Harry, 13 malaise, 275
Tyler, Roger, 28, 30 new rules drafting and United States,
274
United Nations Charter Nicaraguan soldiers, training to, 9
Article 51, xiv, 36, 38, 40, 41, 45, 46, Peers Report, significance of, 212
49, 66, 68–69, 69, 70, 90–91, 101, Rolling Thunder operation, 209, 210
103, 105, 268, 270, 272 scholarship and training programs,
Article 53, 69 citations in, 265–66
United Nations General Assembly, x, shaping law of war, influence on,
xvii, 3, 10, 14, 38, 91, 92, 93, 97, 262–63
121, 122, 128, 129, 150, 160, 161, shaping thinking, 273
177, 185, 186, 190, 250, 253, 273, Son My Massacre, 211
278, 279 Viet Minh, 13
United Nations Truce Supervision younger generation of scholars,
Organisation (UNTSO), 34, 96 affected by, 264
US war in Vietnam. See Vietnam War Vietnam War veterans, 19, 133, 166, 174,
175, 182, 185, 188, 268
Index 303
Vietnamese and Palestinian liberation Weinberger, Caspar, 182

movements Weizman, Eyal, 11, 220
material difference in links, 10 Wheatley, Natasha, 150
similarities, 9 Whyte, Jessica, 3, 17, 145, 276
Vo Nguyen Giap, 9, 118, 119, 120, 121,
146, 155, 156, 245 Yazid, Mohammad, 159
Waldheim, Kurt, 94, 122 Zionism, 130, 148, 182, 184, 185
Weil, Prosper, 185

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Law, Meaning, and Violence

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The Vietnam and Arab-­Israeli Conflicts

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Foreword: How International Law Evolves—­

1 The Transformation of International Law and War

7 “The Third World Is a Problem”: Arguments about the

We should understand that this volume devoted to the relevance of inter-

undertaken without heeding or seriously engaging the UN framework or

legal accountability. This resistance to the internationalization of antico-

—­the primacy of geopolitics vis-­a-­vis international law;

These two realities, given the absence of centralized governmental institu-

subsequently to retain its liberal image as a champion of a rule-­governed

and opposing impingements by symbolic politics on traditional spheres of

A Brief Comment on the Two War Zones

settings.6 Both governments defended their actions by claiming security

International Law Evolves

Against this background it becomes possible to get a better appreciation

war governing neutrality by allowing their territories to be used for hostile

The main conclusion reached is that the Charter framework established in

The Transformation of International

International Law in Relief

War, as a concept as much as a set of practices, occupies a central place in

this grand transformation, suggest Hathaway and Shapiro. Acknowledging

national legal order, allowing a different story about the transformation of

From Total War to Endless War

tions of lawyers could offer—­that “the forms of legal argumentation and

suggested US senator Lindsay Graham in early 2018. “We don’t know

The material aid postwar Vietnam provided to revolutionaries around the

development of their now-­unified country, and externally on fraught rela-

warfare, and building international alliances, a movement could achieve

tried, men trained and weapons tested.”40 The development of counterin-

Background and Volume Outline

The First Arab-­Israeli War concluded with several armistice agree-

tions only to invoke the law of war to their advantage. Disconcerted by

that heard testimony and issued verdicts against US actions in Vietnam

have not been as successful in advancing their new interpretations of the

1. Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical

cern at both the search-­and-­destroy and hearts-­and-­minds strategies of US forces,

From Retaliation to Anticipation

The use of varying language to describe the aim of American airstrikes

The Emergence of Israel’s Reprisal Policy, 1949–­1953

The First Arab-­Israeli War concluded with several armistice agreements

revenge, sabotage, or murder, including from 1954 or 1955 state-­sponsored

chain of command, from high political to boots-­on-­the-­ground military,

an isolated incident.”39 In the Security Council, he declared that “violent

Moderating and Justifying Israel’s Reprisal Policy, 1954–­1956

the casualties were national guardsmen or Arab legionnaires sent to rein-

A draft resolution prepared by the British government and supported

as a result of illegal crossings of the armistice demarcation line.”66 Despite

The US Policy Debate over the Use of Reprisals in Vietnam, 1961–­1965

overtly striking North Vietnam in the administration’s policy debates of

The antiwar Lawyers Committee on American Policy Towards Viet-

The Vietnam and Arab-Israeli Conflicts

This work is licensed under a Creative Commons Attribution-NonCommercial-

ISBN 978-0-472-07587-4 (hardcover : alk. paper)

Foreword: How International Law Evolves—

—the primacy of geopolitics vis-a-vis international law;

subsequently to retain its liberal image as a champion of a rule-governed

tions of lawyers could offer—that “the forms of legal argumentation and

development of their now-unified country, and externally on fraught rela-

The First Arab-Israeli War concluded with several armistice agree-

cern at both the search-and-destroy and hearts-and-minds strategies of US forces,

The Emergence of Israel’s Reprisal Policy, 1949–1953

The First Arab-Israeli War concluded with several armistice agreements

revenge, sabotage, or murder, including from 1954 or 1955 state-sponsored

chain of command, from high political to boots-on-the-ground military,

Moderating and Justifying Israel’s Reprisal Policy, 1954–1956

The US Policy Debate over the Use of Reprisals in Vietnam, 1961–1965

Repurposing the Pattern of Aggression, 1964–1965

The United States launched its not-a-reprisal airstrike on the Uong Bi

Vietnam—that these incidents amounted to a continuing “armed attack”

1. Eric Schmitt and Thomas Gibbons-Neff, “U.S. Carries Out Retaliatory

debate and government decision-making, and how did their understanding

it ended as legal scholars turned to another Middle East conflict—the 1967

The lesson Moore’s protagonist in the public debate of 1965–1967,

Like Egypt, Israel invoked UN Charter Article 51 to claim self-defense

Although Israel had not used anticipatory self-defense as a justification,

We came to this Council in 1967, asking for what we thought—and

The exercise of our right of self-defence is labelled aggression com-

Measures taken by Members in the exercise of this right of self-