Written by Maj Gen. Charles J. Dunlap Jr., USAF (Ret.)
Ms. Iulia Padeanu says, “Accepting that War-Sustaining Objects are ‘Legitimate Targets’ under IHL is a Terrible Idea,” but I say shouldn’t we use means proven to effectively weaken a barbaric enemy while also being more protective of civilians than the alternatives? In a critique of Professor Ryan Goodman’s article (“Targeting ‘War-Sustaining’ Objects in Non-International Armed Conflict”) Padeanu calls the “broad view of targetable objects is, at best, unworkable and, at worst, truly dangerous.” Allow me to counter her conclusion by adding to what I’ve said elsewhere on this vitally important topic.
To be clear, Ms. Padeanu is to be congratulated for laying out many of the traditional arguments against virtually any form of economic targeting. She also highlights the proverbial “slippery slope” concerns so often heard in connection with the concept.
Perhaps most of all, her essay illustrates that proponents of attacks on selected war-sustaining targets that can be reasonably and specifically linked to foreseeable battlefield effects have not done a good enough job at explaining how that approach differs from more generalized attacks on economic objects whose connection, if any, to battlefield effects is too peripheral to justify legitimate strikes.
Ms. Padeanu begins by objecting to the Obama administration’s support for attacking Islamic State of Iraq and the Levant (ISIL) oil facilities and cash hoards. She also says she is more concerned about President Trump because he “campaigned on a promise to ‘bomb the s— out of’ ISIL.” (Presumably, she would have been equally concerned had Secretary Clinton been elected since she too called for conducting “more intense and effective air strikes” and for “ramping up” airstrikes against ISIL.)
She also thinks coalition targeting of ISIL oil facilities is somehow related to the President’s campaign rhetoric about “taking oil,” claiming that doing so would be, ipso facto, “pillage.” However, the issue is much more complex than she suggests. Suffice to say, not every taking from a defeated state is “pillage” (which, incidentally, addresses private property, which oil resources are not). Regardless, that discussion has nothing to do with the targeting of war-sustaining objects.
Ms. Padeanu also argues that war-sustaining objects can never meet the customary international law standard that limits lawful military objectives “to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
Whether a war-sustaining object (or any other target) meets that definition is very fact-specific, and one simply cannot generalize that all do or do not meet the requisite factual standard. In almost all targeting in today’s conflicts, the law is not typically the hard part; rather, it is ensuring that expert analysis is put to the facts to which the law is applied. In the case of war-sustaining targets, the factual connection must be reasonably direct, and that is – and must be – a case-by-case determination. The U.S. Law of War Manual provides further direction for decision-makers:
Attacks, however, may not be directed against civilians or civilian objects based on merely hypothetical or speculative considerations regarding their possible current status as a military objective. In assessing whether a person or object that normally does not have any military purpose or use is a military objective, commanders and other decision-makers must make the decision in good faith based on the information available to them in light of the circumstances ruling at the time. (¶ 184.108.40.206).
We do not know the exact intelligence that the coalition has relied upon to choose its targets, but there is considerable “open source” material suggesting that the particular war-sustaining objects struck were not selected “based on merely hypothetical or speculative considerations.”
The relationship of money to ISIL’s ability to field fighters is very real: a December 2015 article in Atlantic magazine discussed a Lebanon-based Quantum Communications report examining the motivations of ISIL fighters:
[I]nterviews with “internals” expose one of the organization’s most glaring vulnerabilities, especially in the way it recruits and deals with individuals on its home turf in Iraq and Syria. The fighters identified money as a significant motivator, as significant as jihad itself. This suggests that reducing [ISIL’s] ability to raise funds will decrease its allure.
With respect to “reducing [ISIl’s] ability to raise funds,” the oil business is a critical factor. According to Congressional testimony by RAND Corporation analyst Keith Crane, “[o]il and refined oil products are the single most important source of income for ISIL.” And how does ISIL spend its income? Aymenn Jawad al-Tamimi, a researcher with the Middle East Forum who sources ISIL documents, said last year that two-thirds of its budget goes to buying weapons and paying fighters.
Even if it were true that some of ISIL’s cash may at some point have been used for, as Ms. Padeanu suggests, “revenue and taxes for the purpose of running schools, building hospitals, and providing services to a population,” that does not mean that ISIL’s cash is not a military object and therefore immune from attack. Rather, as with any “dual-use” object, a proportionality analysis would apply. In this case, the fact that two-thirds of the budget goes to inarguably military purposes (and likely more today) means it is hardly unreasonable to strike ISIL’s cash.
Additional open source materials show that the airstrikes on the oil fields – under the aegis of “Operation Tidal Wave II” – were a key reason ISIL fighters had their salaries cut by 50%. This also had a direct impact on the battlefield. Assistant Treasury Secretary for Terrorist Financing Daniel Glaser testified before Congress last year that ISIL fighters “are leaving the battlefield as their pay and benefits have been cut or delayed.” And, there is additional evidence that the cash crunch is also helping to slow the flow of new foreign fighters to replenish ISIL’s ranks.
Thus, in the particular case of ISIL, the linkage between attacks on oil facilities and the degrading of their capability to deploy weapons and fighters to the battlefield is not remote or speculative, but rather direct and documented. Furthermore, reports from early 2017 indicate that oil and gas sales to the Assad regime “are now Islamic State’s largest source of funds, replacing revenue the group once collected from tolls on the transit of goods and taxes on wages within its territory.” In other words, attacking war-sustaining oil facilities will not only deprive ISIL of warfighting finances, it will also incidentally affect the Assad regime, which is responsible for a range of war crimes against civilians, including the recent gas attacks.
Nevertheless, Ms. Padeanu believes that targeteers in rule-of-law democracies will ignore the requirement of a factual demonstration that a particular target meets the law’s tight linkage prerequisites. She imagines the expansion of the war-sustaining target set to include such tangential objects as agricultural land and even ordinary taxpayers. Candidly, if any actual warfighters ever took such a militarily senseless interpretation of permissible war-sustaining targets as those she speculates about, the entire edifice of the law of war would collapse.
The law of war expects and requires a measure of good faith in order to be effective. The DoD Law of War Manual embeds “honor” as one of its core principles as a means of memorializing that concept in the minds of U.S. warfighters. It explains that:
[H]onor reflects the principle that parties to a conflict must accept that certain limits exist on their ability to conduct hostilities…. This acceptance is a prerequisite for the existence and operation of the law of war in the way that the principle of pacta sunt servanda (treaties are binding on parties and must be performed by them in good faith) provides a necessary foundation for treaties to exist and operate as instruments that are legally binding on States. (¶ 220.127.116.11)
Put another way, if we get to the point where someone thinks it is lawful and militarily lucrative to bomb agricultural land, we are in a situation where concern about the limits of attacks on war-sustaining objects would be the least of our worries. In a democracy, there has to be some confidence that the armed forces will act with reason and good faith. Along that line, in the United States, the public has vastly more confidence in the armed forces than it does in any other institution, including, for example, the Supreme Court.
Ms. Padeanu also cites my friend and Yale Law Professor Oona Hathaway’s accurate observation that “[t]he weight of scholarly opinion has long maintained that [war sustaining] objects are not legitimate military targets.” But to be blunt, scholars are not responsible for defeating ISIL. States are.
State practice – and especially that of “specially affected” states – is critically important in interpreting the parameters of international law generally, and especially, I would argue, with respect to the law of war. Current state practice is overwhelmingly supportive of attacking certain – albeit certainly not all – war-sustaining targets. With respect to the particular war-sustaining targets Ms. Padeanu questions, there appears to be international consensus. As Professor Hathaway concedes, “French, Russians, and UK have joined the US in operations against ISIL oil revenues.”
Furthermore, of the sixty-eight countries that are part of the coalition battling ISIL, I am not aware of any that have objected to the strike against the ISIL cash hoard or the oil field attacks. Contrary to Ms. Padeanu’s claim that it is “unworkable” for the law to provide reasoned judgments as to what war-sustaining objects can be lawfully targeted, the international community considers these operations to be acceptable and quite feasible.
It is not hard to understand why. As recent events have clearly demonstrated, rooting out ISIL fighters once they have burrowed into urban battlespaces and surrounded themselves with human shields is extremely difficult and profoundly costly to civilians. The attacks on ISIL’s war-sustaining objects have, however, caused very few civilian casualties, yet have yielded tangible results in the degradation of ISIL’s capabilities.
If we are to meet the security challenges of the 21st century, we need to think about the law of war as much as the International Military Tribunal at Nuremberg did. Let’s recall that the Tribunal concluded, the “law is not static, but by continual adaption follows the needs of a changing world.”
As I’ve said before, in the case of ISIL, we are seeing an adversary who has an explicit strategy of putting civilians at risk, and states are trying to find principled means to stop them from doing just that. Striking only those war-sustaining targets that can be reasonably linked to ISIL battlefield capabilities is a development that should be celebrated, not criticized, particularly since this development reduces the risk to civilians.
Maj Gen. Charles J. Dunlap Jr., USAF (Ret.), the former deputy judge advocate general of the United States Air Force, joined the Duke Law faculty in July 2010 where he is a professor of the practice of law and Executive Director of the Center on Law, Ethics and National Security. He holds an undergraduate degree from St. Joseph’s University, and a law degree from Villanova University School of Law. He is also a Distinguished Graduate of the (US) National War College. During his 34-year military career, he served at various posts in the U.S., as well as in Korea and the U.K. Among other assignments, he served as the Staff Judge Advocate for Air Combat Command, U.S. Strategic Command, and as the deputy staff judge advocate for U.S. Central Command. He has deployed for operations in the Middle East and Africa. A prolific author and accomplished public speaker, Dunlap’s commentary on a wide variety of national security topics has been published in leading newspapers, blogs, military journals, and law reviews. His blog is Lawfire http://sites.duke.edu/lawfire/