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The Obama Administration and Targeting “War-Sustaining” Objects in Noninternational Armed Conflict

  • Ryan Goodman (a1)

Extract

Since September 11, 2001, legal experts have focused significant attention on the lethal targeting of individuals by both the George W. Bush and Obama administrations. An equally significant legacy of the post-9/11 administrations, however, may be the decisions to target specific kinds of objects. Those decisions greatly affect the success of U.S. efforts to win ongoing conflicts, such as the conflict with the Islamic State of Iraq and the Levant (ISIL). These decisions may also become precedents for military attacks that states consider lawful, whether carried out by cyber or kinetic means, in future armed conflicts.

To achieve the goal of destroying ISIL, President Obama embraced what many in the international law community long regarded as off-limits: targeting war-sustaining capabilities, such as the economic infrastructure used to generate revenue for an enemy's armed forces. Although the weight of scholarly opinion has for years maintained that such objects are not legitimate military targets, the existing literature on this topic is highly deficient. Academic discussion has yet to grapple with some of the strongest and clearest evidence in support of the U.S. view on the legality of such targeting decisions. Indeed, intellectual resources may be better spent not on the question of whether such objects are legitimate military targets under the law of armed conflict, but on second-order questions, such as how to apply proportionality analysis and how to identify limiting principles to guard against unintentional slippery slopes. In this article, I discuss the legal pedigree for war-sustaining targeting. I then turn to identify some of the most significant second-order questions and how we might begin to address them.

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1 White House Press Release, Remarks by the President on Progress Against ISIL (Feb. 25, 2016), at https://www.whitehouse.gov/the-press-office/2016/02/25/remarks-president-progress-against-isil.

2 See infra note 15.

3 Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), Art. 52(2), June 8, 1977, 1125 UNTS 3 (emphasis added).

4 Harold Hongju Koh, Legal Adviser, U.S. Department of State, The Obama Administration and International Law, Speech at the Annual Meeting of the American Society of International Law, Washington D.C. (Mar. 25, 2010), at http://www.state.gov/s/l/releases/remarks/139119.htm.

5 Brian Egan, Legal Adviser, U.S. Department of State, International Law, Legal Diplomacy, and the Counter-ISIL Campaign, Remarks at the Annual Meeting of the American Society of International Law, Washington D.C. (Apr. 4, 2016), at http://www.state.gov/s/l/releases/remarks/255493.htm.

6 Id.

7 See Michael Bothe, Karl Josef Partsch & Waldemar A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 365 (1982) (Article 52, para. 2.4.3: “Military objectives must make an ‘effective contribution to military action.’ This does not require a direct connection with combat operation … .”). TheICRCDraft Article 43 had referred to objects that “contribute effectively and directly to the military effort of the adversary.” International Committee of the Red Cross, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977, Vol. I: Report on the Work of the Conference, 2d Sess., May 3–June 3, 1972, at 146 (emphasis added), available at https://www.loc.gov/rr/frd/Military_Law/pdf/RC-Report-conf-of-gov-experts-1972_V-1.pdf. Compare Committee III Report, 2d Sess., para. 64, CDDH/215/Rev. 1 (Feb. 3–Apr. 1, 1975), in International Committee of the Red Cross, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977, Vol. XV: Committee III Official Records 259, 277 (“Extensive discussion took place before agreement was reached on the word ‘definite’ in the phrase ‘definite military advantage.’ Amongthe words considered and rejected were ‘distinct,’ ‘direct,’ ‘clear,’ ‘immediate,’ ‘obvious,’ ‘specific,’ and ‘substantial.’”), available at http://www.loc.gov/rr/frd/Military_Law/pdf/RC-records_Vol-15.pdf.

8 Article 52—General Protection of Civilian Objects, in Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 629, 632 n.3 (Yves Sandoz, Christophe Swinarski, & Bruno Zimmermann eds., 1987). [hereinafter ICRC Commentary], available at http://www.loc.gov/rr/frd/Military_Law/pdf/Commentary_GC_Protocols.pdf. An important caution in assessing legal texts on this topic: depending on the context, an express mention of petroleum and energy facilities as a class of lawful military objectives may imply the exclusion of war-sustaining objects. For example, a list of permissible military targets that is limited to areas of the economy that directly support war-fighting capabilities (e.g., transportation and energy for military use)mayimplicitly exclude areas of economic activity that provide a financial base that funds the military effort.

9 See, e.g., Agnieszka Jachec-Neale, The concept Of military objectives in International Law And Targeting Practice 92, 105 (2014); David Turns, Targets, in Research Handbook on International Conflict and Security Law 342, 366 (Nigel D. White & Christian Henderson eds., 2013); Watkin, Kenneth W., Coalition Operations: A Canadian Perspective, 84 Int’l L. stud. 251, 255 (2008).

10 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, paras. 40–41 (June 13, 2000), available at http://www.icty.org/x/file/Press/nato061300.pdf.

11 Robertson, Horace B., The Principle of the Military Objective in the Law of Armed Conflict, 8 U.S. Air Force Acad. J. L. Stud. 35, 50–51 (1997).

12 International Institute Of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, para. 67.27 (Louise Doswald-Beck ed., 1995).

13 Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, para. 24(2) (2002).

14 Tallinn Manual on the International Law Applicable to Cyber Warfare 131 (Michael N. Schmitt ed., 2013).

15 Jachec-Neale, supra note 9, at 254; Stefan Oeter, Methods and Means of Warfare, in The Handbook of International Humanitarian Law 113 (Dieter Fleck ed., 2d ed. 2013); A.P.V. Rogers, Law on the Battlefield (3d ed. 2012); Turns, Targets, supra note 9, at 366; William H. Boothby, The Law of Targeting 106 (2012); Sandesh Sivakumaran, The Law of Noninternational Armed Conflict 344–45 (2012); Yoram Dinstein, The Conduct of Hostilities Under the Law of Armed Conflict 93 (2d ed. 2010); Christine Byron, International Humanitarian Law and Bombing Campaigns: Legitimate Military Objectives and Excessive Collateral Damage, 2010 Y.B. Int’l. Humanitarian L. 175, 188; Watkin, supra note 9, at 255; Michael Schmitt, Fault Lines in the Law of Attack, in Testing the Boundaries of International Humanitarian Law 277, 281 (Susan C. Breau & Agnieszka Jachec-Neale eds., 2006); Wolff H. von Heinegg, Commentary, 78 Int’l l. Stud. 204 (2002); Dinstein, Yoram, Legitimate Military Objectives Under the Current Jus in Bello, 78 Int’l L. Stud. 145–46 (2002); Kalshoven, Frits, Remarks—Implementing Limitations on the Use of Force: The Doctrine of Proportionality and Necessity, 86 ASIL 39, 43 (1992); cf. Robertson, supra note 11, at 50–51.

16 Robertson, supra note 11. Given Robertson's nuanced analysis, it is difficult to categorize him as a clear critic of the U.S. view.

17 The only exception I have found is a paper by William Fenrick, which was notably presented at an expert meeting including several law of war scholars. William J. Fenrick, Military Objectives in the Law of Naval Warfare, in The Military Objective and the Principle of Distinction in the Law of Naval Warfare 1, 27 (Wolff H. von Heinegg ed., 1991).

18 See, e.g., Watkin, Kenneth W., Targeting “Islamic State” Oil Facilities, 90 Int’l L. Stud. 499, 503 (2014) (stating “[t]his approach seems to have been first referred to in the 1997 [sic] United States Commander's Handbook on the Law of Naval Operations” and also citing the “1999” Supplement); Jachec-Neale, supra note 9, at 100 (noting that “[t]his appears to be the first reference in US military literature to both terms,” citing 1987 Commander's Handbook on the Law of Naval Operations and 1997 Annotated Supplement)).

19 Commentators have drawn inferences from the supposed dates and sources of the first references in U.S. military manuals. See, e.g., Dill, Janina, The 21st-Century Belligerent's Trilemma, 1 EUR. J. Int’l L. 83 (2015); Jachecneale, supra note 9, at 100.

20 U.S. Department of the Air Force, Commander's Handbook on the LAW of Armed Conflict AFP 110-34 (1980).

21 Id. at 2-3(a).

22 U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations 8-3 (1987).

23 U.S. Department of Thenavy, Annotated Supplement to the Commander’S Handbook on The law of Naval Operations 8-3 n.11 (1989); see also id. at 7-23 n. 88.

24 See infra note 34.

25 Annotated Supplement to the Commander’S Handbook on the Law of Naval Operations (1989), supra note 23, at 8-2 to 8-3 (section 8.1.1).

26 Military Commissions Act of 2009, 10 U.S.C. §950p(a)(1) (“The term ‘military objective’ means … those objects during hostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or war-sustaining capability of an opposing force … .”); see also U.S. Department of Defense, Military Commission Instruction No. 2: Crimes and Elements for Trials by Military Commission, sec. 5(D) (Apr. 30, 2003).

27 There is arguably tension between the MCA's treatment of war-sustaining objects and the Obama administration's prosecution of Ahmed al-Darbi. The MCA offense of attacking civilian objects treats war-sustaining objects as lawful military targets. 10 U.S.C. §950p(a)(1), §950t(3). The government charged al-Darbi for attacking a French oil tanker. See Charge Sheet,MCForm 458 at 7, United States v. al-Darbi, Charge II (Jan. 2007); see also Arraignment Proceedings, Rules for Military Commissions 803 Session, United States v. al-Darbi (Feb. 20, 2014) (Judge Allred stating “a new definition that applies here under Charge II is ‘military objective,’ which means those objects during hostilities which by their nature, location, purpose or use, effectively contribute to the enemy's warfighting or war-sustaining capability … this offense requires proof beyond reasonable doubt that you knew or should have known that the property which was the object of the attack was not a military objective.”).

28 Department of Defense, Law of War Manual (2015) (updated 2016).

29 Egan, supra note 5 (“The United States has interpreted this definition to include objects that make an effective contribution to the enemy's war-fighting or war-sustaining capabilities.”).

30 See supra notes 4–6; see also Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeal on Jurisdiction, paras. 100–27 (Oct. 2, 1995); Prosecutor v. Strugar, Case No. IT-01-42-T, para. 224 (Jan. 31, 2005); UK Ministry of Defence, the Joint Service Manual of the Law of Armed Conflict, para. 15.9.1 (2004).

31 ICRC Commentary, supra note 8, para. 2016 (“Article 52—General Protection of Civilian Objects”); see also id., para. 2019 (“The adjectives considered and rejected included the words: ‘distinct’ (distinct), ‘direct’ (direct), ‘clear’ (net), ‘immediate’ (immédiat), ‘obvious’ (évident), ‘specific’ (spécifique) and ‘substantial’ (substantiel). The Rapporteur of the Working Group added that he was not very clear about the reasons for the choice of words that was made.”); see also Summary Record, 24th mtg., para. 31, CDDH/III/SR.24 (Feb. 25, 1975), in International Committee of the Red Cross, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977, Vol. XIV: Committee III Official Records 217, 222 (statement of Swiss delegate: “The term ‘effective contribution to military action’ was imprecise, and the words ‘military action’ should be examined by the Drafting Committee in order to avoid any ambiguity.”).

32 Ian Henderson, the Contemporary Law of Targeting 142–44 (2009). Hays Parks’ landmark article, Air War and the Law of War, 32 Air Force L. Rev. 1 (1990), contributed significantly to this understanding. Parks criticized Article 52(2) as too restrictive and not reflective of customary international law and state practice. See, e.g., id. at 139, 141. Parks, however, appears to have reversed his position in subsequent writing. In 2007, Parks published an essay that praised Article 52(2) on the ground that its definition of “military objective” is broad and permits targeting war-sustaining capabilities, and is also consistent with U.S. practices. See W. Hays Parks, Asymmetries and the Identification of Legitimate Military Objectives, in International Humanitarian Law Facing New Challenges 65, 89, 101 (2007).

33 This is not a widely known or cited fact about the Bothe Treatise. None of the commentators who support a narrow interpretation of Article 52(2) even mention this discussion in the treatise. Perhaps this oversight is because the treatise buried its analysis in a footnote.

34 Bothe, Partsch & Solf, supra note 7, at 366 n.15.

35 One caveat: The references to the Anglo-American arbitration tribunal's Cotton Claims—in the Air Force Handbook, Navy Handbook Supplement, the Bothe Treatise, and Carnahan article—may be based on a flawed assumption. The Civil War claims concerned confiscation and destruction of property and not the definition of permissible military targets. Notably, the 2016 Department of Defense Law of War Manual implicitly recognizes the distinction. The manual does not refer to the cotton example under targeting rules and definitions of military objectives, but instead under rules governing “Seizure and Destruction of Enemy Property.” See Department of Defense, Law of War Manual, supra note 28, sec. 5.17.

36 Carnahan, Burrus M., Protecting Civilians Under the Draft Geneva Protocol: A Preliminary Inquiry, 18 Air Force L. Rev. 32, 47–48 (1976).

37 Memorandum from the Joint Chiefs of Staff to the Secretary of Defense, Review of the 1977 First Additional Protocol to the Geneva Conventions of 1949, app. at 51 (May 3, 1985).

38 Id. at 51; cf. The Sixth Annual American Red Cross Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. Int’l L. & POL. 419, 436 (1987) (summary report that “Mr. Matheson … indicated that the United States has no great concern over the new definition of ‘military objective’ set forth in article 52(2) of Protocol I”).

39 Joint Chiefs of Staff, Review of the 1977 Protocols to the 1949 Geneva Conventions, 2, JCS 2497/24-4 (Sept. 13, 1982).

40 Annex D to Appendix A: Informal Preliminary Analysis of the 1977 Protocols, para. 16, in id., at 22, 33.

41 The Falklands/Malvinas conflict in 1982 may provide another example in favor of the U.S. position. See Walker, George K., State Practice Following World War II, 1945–1990, 65 Int’l L. Stud. 121, 153, 188 (1993). Other examples might include the U.S. bombing campaign in North Vietnam, including attacks on hydroelectric facilities, and U.S.-led airstrikes against irrigation dams in the Korean War. But cf. Secretary of State Dean Rusk, News Conference, 55 Dep't State Bull. 157 (1966) (“The military purpose of these bombings [of petroleum-oil lubricants installations] was to make it more difficult for North Viet-Nam to send large numbers of men and large quantities of supplies into South Viet-Nam for the purpose of taking over that country by force.”). Cf. New Zealand Defence Force, Interim Law of Armed Conflict Manual, sec. 516(5) (1992); Ecuador, Naval Manual, sec. 8.1.1 (1989).

42 Press Conference by Franc¸ois Hollande and Vladimir Putin (Nov. 26, 2015), available at http://www.globalresearch.ca/jointly-combating-international-terrorism-francois-hollande-in-moscow-with-vladimir-putin/5492291; see also Alissa J. Rubin & Anne Barnard, France Strikes ISIS Targets in Syria in Retaliation for Attacks, N.Y. Times, Nov. 15, 2015, at A1.

43 Press Conference by Franc¸ois Hollande and Vladimir Putin, supra note 42; see also Russian Airstrikes Blast ISIS Oil Facilities in Syria, CBS NEWS (Nov. 25, 2015), at http://www.cbsnews.com/news/russian-airstrikes-blast-isisoil-facilities-in-syria.

44 U.K. Ministry of Defence, Guidance: RAF Air Strikes in Iraq and Syria: December 2015 (Feb. 16, 2016), at https://www.gov.uk/government/publications/british-forces-air-strikes-in-iraq-monthly-list/raf-air-strikes-in-iraqand-syria-december-2015; U.K. House of Commons Foreign Affairs Committee, The UK's Role in the Economic War Against ISIL, First Report of Session 2016–17, HC 121 (July 5, 2016), available at http://www.publications.parliament.uk/pa/cm201617/cmselect/cmfaff/121/121.pdf.

45 Report to the U.S. Senate Committee on Foreign Relations, Afghanistan's Narco War: Breaking the Link Between Drug Traffickers and Insurgents, 111th Cong., 1st Sess., at 6 (Aug. 10, 2009) [hereinafter Senate Report]; NATO Press Release, NATO Steps Up Counter-narcotics Efforts in Afghanistan (Oct. 10, 2008); Michael Schmitt, Targeting Narcoinsurgents in Afghanistan: The Limits of International Humanitarian Law, 2009 Y.B. Int’l. Humanitarian L. 301.

46 Judy Dempsey & John F. Burns, Under Pressure from U.S., NATO Agrees to Take Aim at Afghan Drug Trade, N.Y. Times, Oct. 10, 2008, at A10; Thom Shanker, Obstacle Seen in Bid to Curb Afghan Trade in Narcotics, N.Y. Times, Dec. 22, 2008, at A6. Note that the latter news story from late December 2008 refers to “new objections from member nations that say their laws do not permit soldiers to carry out such operations” (emphasis added). However, it is unclear whether those are essentially the same “objections,” as indicated in the prior reporting, which were accommodated by national caveats in the Budapest accord. It is also unclear whether the foreign states’ concerns related to international law or their own domestic law and policy. The December 2008 New York Times story suggests it may have related primarily to the domestic allocation of authorities. Id. (“Their leaders have cited domestic policies that make counternarcotics a law enforcement matter—not a job for their militaries—and expressed concern that domestic lawsuits could be filed if their soldiers carried out attacks to kill noncombatants … .”).

47 Dempsey & Burns, supra note 46; Shanker, supra note 46.

48 Senate Report, supra note 45, at 16 (“The authorization for using lethal force on traffickers caused a stir at NATO earlier this year when some countries questioned whether the killing traffickers and destroying drug labs complied with international law.”).

49 See, e.g., Susanne Koelbl, Battling Afghan Drug Dealers: NATO High Commander Issues Illegitimate Order to Kill, Der Spiegel Online (Jan. 29, 2009), at http://www.spiegel.de/international/world/battling-afghan-drug-dealers-nato-high-commander-issues-illegitimate-order-to-kill-a-604183.html.

50 Marten Zwanenburg, Challenges to Legal Interoperability, International Humanitarian Law Interoperability in Multinational Operations, 79 Int’l Rev. Red Cross 681 (2013).

51 Id.; Schmitt, supra note 45; Koelbl, supra note 49.

52 Schmitt, supra note 45, at 302.

53 See, e.g., William F. Wechsler, Deputy Assistant Secretary of Defense Counternarcotics and Global Threats, Statement for the Record Before the Senate Caucus on International Narcotics Control: Counternarcotics Efforts in Afghanistan 5 (July 20, 2011) (“U.S. military forces conduct operations against drug-insurgency nexus targets that meet very specific rules of engagement criteria as part of the counter-insurgency campaign. Persons and organizations that meet these criteria become legitimate military targets … .”); U.S. Air Force, Air Force Operations and the Law 272 (3d ed. 2014) (“The United States and other members of International Security Assistance Force (ISAF) consider the Taliban-controlled drug labs and drug caches to make an effective contribution to the Taliban's military capability and therefore legitimate targets that may be lawfully targeted by military forces.”).

54 Schmitt, supra note 45, at 317 (“The causal link is especially attenuated in the Taliban case because they do not grow the crop, produce the opium, or transport or smuggle the drugs. The group merely profits from the illicit actions of others.”); id. at 307.

55 See Western Front, Aerial Bombardment and Related Claims (Eri. v. Eth.), Eritrea's Claims 1, 3, 5, 9–13, 14, 21, 25, 26, Partial Award, para. 117 (Eritrea Ethiopia Claims Comm’n Dec. 19, 2005), 45 ILM 396 (2006).

56 Id., para. 121; see also id. (“The infliction of economic losses from attacks against military objectives is a lawful means of achieving a definite military advantage, and there can be few military advantages more evident than effective pressure to end an armed conflict that, each day, added to the number of both civilian and military casualties on both sides of the war.”).

57 NATO Summit Press Conference by NATO Secretary General Javier Solana and Supreme Allied Commander Europe General Wesley K. Clark (Apr. 23, 1999), at http://www.nato.int/docu/speech/1999/s990423k.htm (“Our forces are conducting simultaneous strikes on two air lines of operation: a strategic attack against [President Milošević’s] integrated air defence system, higher level command and control, fielded forces both army and police, sustaining infrastructures and resources in military supply routes[.]”/“[W]e have inflicted significant damage to military industrial targets and maintenance facilities in order to disrupt his ability to repair and reconstitute air, missile and ground forces[.]”/“We continue our efforts to destroy methodically all strategic and tactical elements of his capability to conduct military operations in Kosovo, his military and police forces in the field, and their reinforcing and sustaining units and facilities.” (emphasis added)).

58 Department of Defense, Report to Congress: Kosovo/Operation Allied Force After-Action Report 23 (Jan. 31, 2000).

59 Parks, Asymmetries and the Identification of Legitimate Military Objectives, supra note 32, at 100.

60 Oceans Law and Policy Department, U.S. Naval War College, Annotated Supplement to the Commander's Handbook on the Law of Naval Operations 8-3 n. 11 (1997).

61 See Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War 612 (Apr. 1992) (“Industries essential to the manufacturing of CW,BWand conventional weapons depended on the national electric power grid.”).

62 See id. at 150 (emphasis added).

63 Letter from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council,UN Doc. S/22156 (Jan. 28, 1991) (emphasis added).

64 Final Report to Congress: Conduct of the Persian Gulf War, supra note 61, at 125–26 (“In combination with the naval embargo, the Strategic Air Campaign's early effect on Iraqi war support infrastructure was substantial. Iraq's internal fuels refining and production capability was shut down, limiting its ability to produce fuel for its tanks, planes, and war-supporting infrastructure and resulting in government-imposed rationing of pre-attack inventory.”); id. at 504 (describing effectiveness of Coalition naval embargo, “ships were deterred from loading Iraqi oil while Turkey and Saudi Arabia prohibited use of Iraqi oil pipelines which crossed their territory. Virtually all Iraqi oil revenues were cut off, and the source of much of Iraq's international credit was severed, along with 95 per cent of the country's total pre-invasion revenue.”).

65 See, e.g., id. at 627 (“At night, some oil trucks were mistaken for mobile Scud launchers or other military vehicles; other trucks and civilian vehicles were struck incidental to attack of legitimate military targets … . This collateral damage and injury, which occurred despite previously described Coalition efforts to minimize damage to civilian objects and injury to noncombatant civilians … .”); Department of State Daily Briefing, Feb. 14, 1991; Human Rights Watch, Civilian Casualties During the Air Campaign and Violations of the Laws of War (1991), at https://www.hrw.org/reports/1991/gulfwar/INTRO.htm (quoting statements by Lt. Gen. Thomas Kelly, director of operations for Joint Chiefs of Staff; Maj. Gen. Robert Johnston, chief of staff at U.S. headquarters in Riyadh; State Department spokeswoman).

66 Mark Fineman, Allies Bombing Them, Refugees Say, L.A. TIMES (Jan. 31, 1991), at http://articles.latimes.com/1991-01-31/news/mn-446_1_iraqi-border-guards (internal quotation marks omitted).

67 Parks, Asymmetries and the Identification of Legitimate Military Objectives, supra note 32, at 101 (citing Iran-Iraq TankerWaras example of state practice targeting war-sustaining capabilities);Annotated Supplement to the Commander's Handbook on the Law of Naval Operations (1989), supra note 23, at 7-25 n. 98 (“Whether classified as absolute or conditional contraband, oilandthe armaments which its sale or barteroninternational markets bring, were absolutely indispensable to the war efforts of the Persian Gulf belligerents.”); Walker, supra note 41, at 158 (discussing Iran-Iraq Tanker Wars).

68 Report of the Secretary-General on the Mission to Inspect Civilian Areas in Iran and IraqWhichHave Been Subject to Military Attack, UN Doc. S/15834 (June 20, 1983). The Report used as its criteria the distance between strikes on civilian areas “from front lines and/or military installations” and their “proximity to communications and/or economic installations of strategic or military significance.” Id., para. 3. Throughout the report, oil installations are considered economic installations of military significance. See also id., para. 96 (“In the opinion of the mission, the oil refinery was the main target of the attack, but a number of civilian targets at some distance from it had also been hit.”); id., para. 32 (“The area is mainly agriculturalandis not in a military zone.However, there were oil installations nearby in Abu Ghareib and Baid.”).

69 SC Res. 540 (Oct. 31, 1983) (“expressing its appreciation to the Secretary-General for presenting a factual, balanced, and objective account”).

70 Report of the Secretary-General on the Mission to Inspect Civilian Areas in Iran and Iraq Which Have Been Subject to Military Attack, supra note 68, para. 42 (“An oil refinery complex located near the city was said to have been almost destroyed and the remaining installations to be under constant attack. The mission was not taken to that area because, the Iranian authorities said, it was not a civilian area and could be considered an economic installation of military significance and, therefore, a legitimate target.”).

71 Richard W. Murphy, Assistant Secretary of State for Near Eastern and South Asian Affairs, Statement Before the Subcommittee on Europe and the Middle East, House Foreign Affairs Committee (May 19, 1987), reprinted in 87 Dep’t. State Bull. 59, 60–61 (1987); see also Casper W. Weinberger, Secretary of Defense, Report to Congress on Security Arrangements in the Persian Gulf (June 15, 1987), reprinted in The Iran-Iraq War (1980– 1988) and the Law of Naval Warfare 158, 171 (Andrea de Guttry & Natalino Ronzitti eds., 1993) (“The United States will be in full compliance with international law in providing escort to the reflagged tankers. International law clearly recognizes the right of a neutral state to escort and protect its flag vessels in transit to neutral ports. The tankers will carry Kuwaiti oil to neutral ports and will return in ballast … . Neither the tankers nor their U.S. escorts will be legitimate objects of attack … .”).

72 SC Res. 552 (June 1, 1984) (“Reaffirms the right of free navigation in international waters and sea lanes for shipping en route to and from all ports and installations of the littoral States that are not parties to the hostilities[.] … Condemns the recent attacks on commercial ships en route to and from the ports of Kuwait and Saudi Arabia[.] … Demands that such attacks should cease forthwith and that there should be no interference with ships en route to and from States that are not parties to the hostilities.”).

73 Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations (1989), supra note 23, at 8-3 n. 11 (“Whether this rule [targeting war-sustaining capabilities] permits attacks on war-sustaining cargo carried in neutral bottoms at sea, such as by Iraq on the tankers carrying oil exported by Iran during the Iran-Iraq war, is not firmly settled.”).

74 Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations (1997), supra note 23, at 7-16 to 7-17, 7-17 n.93 (“7.4: Neutral Commerce”).

75 Weinberger, supra note 71, at 160 (“As a result of the Iraqi decision in 1984 to carry the war to Iran's oil export operations, Iraq attacked Iranian-flag, Iranian-leased, and other vessels in the Gulf. Iran reacted by attacking nonbelligerent shipping indiscriminately.”); cf. W.J. Fenrick, Legal Aspects of Targeting in the Law of Naval Warfare, 1991 CAN. Y.B. of Int’l L. 238, 275; Walker, supra note 41, at 168–70.

76 Additional Protocol I, supra note 3, Art. 52(2); Law of War Manual, supra note 28, sec. 5.7.3.

77 ICRC Commentary, supra note 8, para. 2024 (“[D]estruction, capture or neutralization must offer a definite military advantage in the circumstances ruling at the time. In other words, it is not legitimate to launch an attack which only offers potential or indeterminate advantages.”). A compelling dissent by the President of the Eritrea Ethiopia Claims Commission is also instructive:

As regards the second condition, a reference to the hypothetical or speculative effect of the destruction of the military objective on the conduct of the war is, in my view, not sufficient. A demonstration of the “definite military advantage” of the attack is required. The infliction of economic loss or the undermining of morale through the destruction of a civilian object, or the probability that the destruction may bring the decisionmakers to the negotiation table, do not make that object a military objective.

Western Front, Aerial Bombardment and Related Claims, supra note 55, para. 4 (sep. op. Houtte).

78 Beth Van Schaack, Targeting Tankers—and Their Drivers—Under the Law of War (Part 2), Just Security (Dec. 3, 2015), at https://www.justsecurity.org/28071/targeting-tankers-drivers-law-war-part-2; Aurel Sari, Trucker's Hitch: Targeting ISIL Oil Transport Trucks and the Need for Advanced Warnings, Lawfare (Dec. 2, 2015), at https://www.lawfareblog.com/truckers-hitch-targeting-isil-oil-transport-trucks-and-need-advanced-warnings. But cf. Law of War Manual, supra note 28, sec. 5.9.3 (“Taking a direct part in hostilities extends beyond merely engaging in combat and also includes certain acts that are an integral part of combat operations or that effectively and substantially contribute to an adversary's ability to conduct or sustain combat operations.”).

79 Sivakumaran, supra note 15, at 344–45 (quoting Report of Robert S. Hale, US Agent and Counsel, American-British Claims of Commission, in 6 Papers Relating to the Treaty of Washington 52–53 (1874) (cotton claims)). Carnahan also describes cotton “as the chief export of the South, it was the ultimate source of almost all Confederate weapons and military supplies.” Carnahan, supra note 36, at 47.

80 Additional Protocol I, supra note 3, Arts. 51(5)(b), 57(2)(a)(iii), 57(2)(b).

81 L.C. Green, for example, writes that “oil installations of every kind” are legitimate military objectives, but that a proportionality analysis would nevertheless apply. L.C. Green, Environment and the Law of Conventional Warfare, 1991 CAN. Y.B. Int’l L. 222, 233–34 (“[T]here would seem to be little doubt that oil installations of every kind are in fact legitimate military objectives open to destruction by any belligerent. Nevertheless, it is now well-established that even military objectives should only be destroyed if the military advantage to be gained so outweighs the collateral civilian damage as to render this proportionate, however severe it may be.”).

82 Cf. Letter from Department of Defense General Counsel J. Fred Buzhardt to Senator Edward Kennedy, Chairman of the Subcommittee on Refugees of the Committee on the Judiciary (Sept. 22, 1972), reprinted in 67 AJIL 118, 123–24 (1973) (“The test applicable from the customary international law, restated in The Hague Cultural Property Convention, is that the war making potential of such facilities to a party to the conflict may outweigh their importance to the civilian economy and deny them immunity from attack.”).

83 See also Law of War Manual, supra note 28, sec. 5.5.2.

84 ICRC Commentary, supra note 8, para. 2218 (Article 57).

85 Bothe, Partsch & SOLF, supra note 7, at 287 (Article 44, paragraph 2.7.2 (“‘Concrete’ means specific, not general; perceptible to the senses. Its meaning is therefore roughly equivalent to the adjective ‘definite’ used in the two-pronged test prescribed by Art. 52(2). ‘Direct,’ on the other hand, means ‘without intervening condition or agency.’ Taken together the two words of limitation raise the standard set by Art. 52 in those situations where civilians may be affected by the attack.”); id. at 269 (Article 43, paragraph 2.1.3).

* Special Counsel to the General Counsel of the Department of Defense (2015–16). This article is written in the author’s personal capacity and does not represent the official views of the Department of Defense or the U.S. government.

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American Journal of International Law
  • ISSN: 0002-9300
  • EISSN: 2161-7953
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