Black flags and juridification

Taking the decision of whether an order is manifestly unlawful away from combatants and trusting it in the hands of lawyers is part of the juridification of war. The debate on whether such juridification helps or hinders the advancement of human rights is an ongoing one in Israel and globally. David Kretzmer and Yaël Ronen argue in their book “The Occupation of Justice” that the involvement of the Israeli Supreme Court in scrutinizing the legality of Israel’s occupation helped legitimate it and thus may have even prolonged it. My argument is different and aims to show that in the name of advancing human rights obligations, the juridification of the process of ordering airstrikes has created an inhuman system in excluding the pilot’s eye from the decision of whether an order is manifestly unlawful.

From Dr. Or Bassok, The Legal Takeover of the Manifestly Unlawful Order Doctrine in Israel, Just Security, Aug. 14, 2023