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The New York Times reported on June 27 that an airstrike in eastern Syria destroyed a building that the Islamic State used as a prison for captured fighters. Observers indicate that the attack was likely part of the U.S.-led coalition forces’ larger bombing campaign in the region. Initial reports estimate that over 60 people perished, including 42 non-combatant prisoners and 15 Islamic State prison guards. This strike comes amid significant increases in civilian casualties in the campaign against the Islamic State: the coalition’s own reports acknowledge that its campaign has resulted in 484 civilian deaths since 2014, with over 130 civilians killed this past April.
Some of the circumstantial evidence emerging about the al-Mayadeen prison attack suggests it may be justified by a controversial and recently reinvigorated U.S. position on the law of targeting: the argument that parties to armed conflict have the legal authority under international humanitarian law (IHL) to target objects that contribute to an opposing belligerent’s economy. If this legal argument played a role in the attack, the United States may be using it to increase the scope of objects it targets in Syria beyond the oil facilities and cash stockpiles targeted during the Obama Administration.
Under traditional interpretations of IHL, most objects that are part of a belligerent’s economic infrastructure are classified as “civilian objects” immune to targeting, with one narrow exception that we describe below. Article 52(2) of Additional Protocol I (API) of the Geneva Conventions limits targeting in international armed conflicts to military objects that “by their nature, location, purpose or use make an effective contribution to military action.” Although API has not been ratified by the United States, it has been adopted by 174 states, and states and commentators consider many of its provisions to constitute customary international law (CIL). The International Criminal Tribunal for the former Yugoslavia has treated Article 52 in particular as CIL in the context of non-international armed conflicts.
As many interpreters articulate the traditional view, Article 52 allows for targeting of “economic” objects in a narrowly defined set of cases where such objects directly contribute to discrete military operations of a belligerent—for instance, when a factory produces bombs, or an oil tanker fuels up a fighter jet. (See here and here on the debate over where the line falls.) This exception is limited, however, and on the traditional view most economic objects are not targetable. The view that the targetable range of economic objects is narrow finds support in the text of Article 52, which contains a presumption against targetability in ambiguous cases. Article 52(3) states that “[i]n case of doubt whether an object which is normally dedicated to civilian purposes . . . is being used to make an effective contribution to military action, it shall be presumed not to be so used.” The rule effectively prohibits the early 20th century practices of “morale bombing” and destruction of economic infrastructure that were used to decrease a civilian population’s support for an enemy government.
Since at least the late 1980s, however, the United States has offered a contested theory of the international law of military-object targeting. While the United States definition of a military object parallels the text of Article 52(2), it differs from the treaty in that it includes any objects that “effectively contribute to the enemy’s war-fighting or war-sustaining capability.” This “war-sustaining” hypothesis allows a party to target objects that make a contribution to an enemy belligerent’s economy and, in so doing, help to “sustain” the belligerent’s capacity to engage in war. We trace the development of the war-sustaining theory in a new paper, and locate its first formal development in a set of Naval and Air Force field manuals from the 1980s and 1990s. Our work builds on a recent paper by former Department of Defense Special Counsel Ryan Goodman, although our analysis of the evidence on the historical development of the U.S. position diverges from his.
Our research suggests that, over time, the Department of Defense has at some junctures introduced significant ambiguity into its position on whether the war-sustaining interpretation applies to API. For instance, field manuals from the 1990s characterized the war-sustaining theory as an interpretation of customary law, suggesting that the customary law on object targeting diverges from treaty law. More recent publications and statement by government officials, however, leave open the possibility that the United States views the war-sustaining theory as an interpretation of Article 52(2). Section 220.127.116.11 of the Department of Defense’s 2015 Law of War Manual, for instance, appears to rely on API’s definition of "military objective" to explain that an object need only make an effective contribution to the war-sustaining capability of an opposing force's military action. The Manual also states that “the United States has interpreted [treaty definitions of military objective] to include [the “war-fighting,” “war-supporting,” and “war-sustaining”] concepts.” Goodman’s article, which was published months after his government service ended, also suggests that the war-sustaining theory is a potentially valid interpretation of Article 52(2). (See page 7 of his article for the clearest statement to this effect.) The precise reasons the United States might want to offer the war-sustaining theory as an interpretation of API remain unclear. One possibility is that the United States wants to leave open legal grounds for targeting war-sustaining objects to coalition allies who are signatories of API. In order to resolve future ambiguities it is important for the United States to clarify both whether it believes (1) Article 52(2) is customary IHL and (2) whether the war-sustaining theory is offered as a valid interpretation of Article 52(2).
Goodman’s article collects a set of recent state practice examples of the war-sustaining interpretation, half of which come from the United States or from coalitions in which the United States participated. The United States may have relied on a version of the war-sustaining interpretation to target electricity production facilities and oil refineries during the Persian Gulf War—although, as Goodman notes, it is unclear whether the United States targeted the oil and electricity because the Iraqis intended them for “immediate military use.” More recently, the United States also used force against poppy producers and narcotics facilities in Afghanistan on the grounds that they were supplying revenue to the Taliban—a practice that some commentators noted likely exceeded Article 52(2)’s restrictions.
The war-sustaining interpretation ran into international resistance as it developed. For example, the rapporteur at the 1988-94 San Remo Roundtables, which produced an international manual describing the law applicable to armed conflict at sea, observed that participants rejected the war-sustaining approach, “fear[ing] that ‘war-sustaining’ could too easily be interpreted to justify unleashing the type of indiscriminate attacks that annihilated entire cities during [World War II].” And as Goodman notes, during the war in Afghanistan, some NATO states insisted that they be able to opt out of the attacks on narcotics facilities, among them Germany, Italy, Poland, and Spain. (The available evidence does not make completely clear whether they did so in order to avoid the war-sustaining interpretation, or for some other reason.) By contrast, officials from France, the United Kingdom and Russia have recently acknowledged targeting Islamic State petroleum facilities, suggesting that they have accepted the war-sustaining interpretation.
While the United States has articulated the war-sustaining rationale differently over time, its most recent—and arguably most permissive—formulation appears in the 2015 Law of War Manual:
Military action has a broad meaning and is understood to mean the general prosecution of the war. It is not necessary that the object provide immediate tactical or operational gains or that the object make an effective contribution to a specific military operation. Rather, the object’s effective contribution to the war-fighting or war-sustaining capability of an opposing force is sufficient.
(As we mention in our paper, the sources that the Law of War Manual uses to support this formulation appear to conflate the war-sustaining interpretation with the definition of military objective in API.) In practice, too, the Obama Administration gave the war-sustaining interpretation new life in 2015, when it launched attacks against cash stockpiles and oil fields held by the Islamic State. Statements by the Obama Administration, including President Obama himself, suggested that it had relied on the war-sustaining interpretation as the legal basis for the attacks. A number of legal scholars objected to the war-sustaining interpretation at this juncture, too (see here, here, and here).
It is possible that the U.S. coalition targeted the prison in al-Mayadeen last month because of its role in “sustaining” Islamic State’s war effort—which would suggest, in turn, that the Trump Administration has continued, and perhaps expanded, the use of the war-sustaining interpretation beyond that of the Obama Administration. Notably, a coalition statement on the bombing said that “[t]he removal of these facilities disrupts ISIS’s ability to facilitate and provoke terrorist attacks against the coalition.” This language, with its use of words (“facilitate” and “provoke”) that suggest an attenuated connection between the object and the Islamic State attacks, raises a question of whether the war-sustaining theory helped legally justify the strike. Under the traditional interpretation of the military-object targeting rule, a prison housing fighters out of combat would not be a legitimate target. However, there are several ways the coalition could make an argument for targeting the prison under the war-sustaining rationale. If the Islamic State was using detainees as prison labor, ransoming prisoners for funds, or treating the prison as a tool of recruitment, the prison might contribute to “sustaining” the Islamic State’s war effort. Indeed, evidence has emerged in other contexts that the Islamic State does recruit among its detainees.
Of course, there are a number of alternative explanations for the attack on the prison at al-Mayadeen that do not implicate the war-sustaining interpretation. Coalition forces may simply have made an error in targeting the prison—for instance, assuming it was a barracks or a military command center. The coalition’s proportionality analysis may have then underestimated the number of civilians present and mistakenly concluded that the prison was targetable.
One possible consequence of the U.S. position that strikes on economic objects in this context are lawful is the precedent it sets for other actors. This possibility is even more likely if the United States promotes the view that war-sustaining objects are targetable as an interpretation of the treaty law of Article 52, because other states who have ratified the treaty may adopt this practice as a way of expanding the range of objects they target in their own military campaigns. Indeed, the Saudi Arabia-led coalition in Yemen, which the United States supports, has been accused of targeting markets and commercial centers—clear examples of civilian objects. If the United States continues to treat war-sustaining activities as targetable, it may come at a heavy cost to the non-combatants caught in the crosshairs. With casualities already on the rise in Syria, it is imperative that the Trump Administration remains transparent about its legal justifications for military strikes—especially when those justifications may expand the risk to civilian lives.