By: Amy Flick
One of the Friday sessions at ASIL’s 2017 annual meeting was staged in the form of a debate on the question of whether the practice of targeting revenue sources of ISIL (like oil trucks and infrastructure and cash storage sites) violates international humanitarian law. The moderator, Christie Edwards of the American Red Cross International Humanitarian Law Division, began the program by explaining the debate format, with the speakers taking assigned positions which might, or might not, reflect their own views.
The affirmative side, supporting targeting of revenue sources as legitimate military objects, led off with Professor Ryan Goodman of New York University School of Law. He argued that it is lawful to target objects under current law, even if the law should be changed, and that under debating rules, the proof is on the negative team. Article 52(2) of the Additional Protocol I of the Geneva Conventions, on general protection of civilian objects, limits attacks strictly to military objectives, with a definition of targetable objects as those making an effective contribution to military action. He cited Burrus Carnahan’s writings on Additional Protocol I, which include examples of economic targeting such as the destruction of raw cotton during the U.S. Civil War, and the more recent example of Afghanistan, where all 28 members of NATO have authorized targeting drug labs. Professor Goodman acknowledged that the prevailing academic opinion is that economic targets are not legitimate targets, but he called most of the analysis of the question in the academic literature superficial. He also referred to ICRC Commentaries requiring military control over an object as a limit. Since ISIL controls the oil fields and funds its operations and purchases weapons through the sale of oil, those qualify as legitimate targets. Where states have drawn the line is targeting people, even if they are working in revenue-generating operations, if they are not directly involved in hostilities.
Professor Laurie Blank, Director of the International Humanitarian Law Clinic at Emory University School of Law, argued for the negative side, and disagreed on the debate’s burden of proof, saying that the party describing a target as outside IHL protections has the burden of proof here. Because the object and purpose of the law of armed conflict is to minimize civilian suffering, the law of armed conflict limits targeting to military objectives and combatants. The first step in the process is to determine if the target is a military objective. Article 52(2)’s definition of targets is combatants and equipment. Donating money to a terrorist group does not make one a target, even if the money might be used for objects that might be used in conflict. Just because something is done frequently, or feels good, an argument for “morally legitimate” does not make economic targeting legal in the law of armed conflict. She argued that the risk of turning money into a military objective by nature is that the slippery slope leads to targeting agriculture, banks, and the environment.
Maj. Gen. Charles Dunlap, Professor and Executive Director of the Center on Law, Ethics and National Security at Duke Law School, returned to the affirmative side of the argument. Professor Dunlap disagreed with the slippery slope argument and said that the point of the debate is the narrow question of whether the target has a direct connection with objects on the battlefield. ISIL fighters regard monetary payments as income for jihad. Two-thirds of ISIL’s budget goes to paying fighters and buying equipment. He cited an article from The Atlantic from March 6, 2017 (which itself cites a February 2017 report from The International Centre for the Study of Radicalisation and Political Violence) that found that, when the oil fields were bombed, ISIL cut fighter pay by 50%, and many left the battlefield. An attack that removes fighters from the battlefield without civilian casualties serves the idea of international humanitarian law. U.S. forces even dropped leaflets to notify drivers before oilfields were bombed. Professor Dunlap stressed that these tactics are only used when it is shown that eliminating these economic targets will affect the battlefield. The alternative is for military operations on the ground to have to root fighters out from urban areas house by house.
The final speaker of the debate was Professor Jens David Ohlin of Cornell Law School, arguing for the negative side. He started with a declaration that “slippery slope is an understatement.” Article 52(2)’s not having used the word “direct” does not mean that it allows revenue-producing site bombings. There must be a causal nexus to the military outcome, and it must be relatively certain that destruction of the target confers a military advantage. Bombing to demoralize the civilian population is not enough of a military nexus; bombing coal and steel plants is. Three steps are needed with economic targets to show a military purpose: a revenue-generating product is produced; the product is sold; and the revenue is used to buy weapons. This is not enough to establish a causal connection a stay within the requirement of conferring a definite military advantage.
On rebuttal, Professor Goodman reiterated that current law allows the slippery slope, even if the law should be changed. The travaux for Protocol I dropped “direct objects” and allowed indirect objects. Just as steel is turned into tanks, money creates fighters, and could even be traded directly for arms, eliminating one of the three steps. Rule 8 practice includes oil storage sites as military targets, as well as dual purpose structures like bridges; it does not allow bombing agriculture, with a disproportionate effect on civilians, or the World Trade Center, as an example of a structure too indeterminate to military objectives.
Professor Blank stated that she found assurances that there are limits and that states will be careful as insufficient. Making law for “bad terrorists” is not why a practice is allowed, because it becomes justifiable for other groups.
Professor Dunlap’s response was that the law requires care to be taken. Military forces must collect a lot of data or they cannot target, and IHL does not matter to groups who do not follow the law. The current situation in Syria and Iraq has seen a collapse of reciprocity. If we can eliminate fighters and weapons without civilian casualties, and there are no good other options, we should do it.
Professor’s Ohlin’s final response was that the affirmative side has argued that international law permits anything that is not prohibited, but IHL requires a presumption of civilian character, with proof that a target is a legitimate military target. The parties agree that analysis requires a definite military advantage; the disagreement is over what is definite. He contended that the affirmative side distinguished unfairly between small and large powers based on how much of the economy must be crippled by the destruction of a target to diminish the combatant’s military capacity. Professor Blank agreed that the rules must be the same for state and non-state actors; targeting rules cannot be different based on whether the parties are good or bad.
[To watch the video of this program and others from ASIL’s 2017 annual meeting, visit ASIL’s YouTube channel. For another recap of this program, visit ASIL Cables].