The Loyola Conference and the Evolving Definition of Military Objective

Last Friday I had the privilege of participating in a conference at Loyola University Chicago School of Law entitled The New Law of War Manual: Accurate? Authoritative? Influential?  It was expertly organized by Professor John Dehn, a co-director of Loyola’s National Security and Civil Rights Program, and it drew a number of law of war expertss from government, the military, and academia.

The conference examined the new DoD Law of War Manual that was issued last June after years of what seems to have been bureaucratic or even ideologically-based delay.  The 1,200 plus page effort aspires to state the lex lata of the law of war, at least insofar as the U.S. Department of the Defense is concerned.  Notably, it contains a disclaimer that the “views in this manual do not necessarily reflect the views of…the U.S. Government as a whole.” (p. vi)  This generated some discussion as the extent to which it will form state opinio juris which is so important to the development of customary international law.

My view is that the disclaimer is much an internal administrative device designed to halt endless interagency debates that could easily arise with respect to an encyclopedic document of this size.  In the vastness of the Federal government, it would not be hard to find someone in some agency implacably opposed to this or that sentence among the thousands in the Manual.

I would be surprised, however, if there were truly significant disagreements about genuinely material aspects of the Manual because – irrespective of any disclaimer – I doubt the interagency process would permit publication if really serious disagreements existed.  In any event, notwithstanding the disclaimer or any internal governmental opposition, I believe that nations will come to accept the Manual as the view of the U.S. government generally, especially as American forces follow it during actual operations.

I won’t attempt to catalog the very rich discussion of the many aspects of the Manual that took place at the conference.  (I understand that the videos from it will eventually be posted online).  However, allow me to raise one issue that was energetically discussed: the seeming evolution of the definition of “military objective.”

The relevant part the Manual generally follows the accepted international definition by saying that in order to characterize something as a lawful military objective, it must “somehow [make] an effective contribution to military action” and that attacking it, “in the circumstances, offers a definite military advantage.” (p. 208).  In elaborating, the Manual more controversially says that while the “object must make or be intended to make an effective contribution to military action…this contribution need not be “direct” or “proximate.””  Thus, the U.S. considers the concepts of “war-supporting,” and “war-sustaining” objects to be included in the definition of military objective.

It seems that this is a key part of the legal for justifying the attack on Islamic State in Iraq and Syria’ (ISISs) oil facilities beginning in September of 2014.  A Pentagon spokesman explained that “[t]hese small-scale refineries provide fuel to run [ISIS] operations, money to finance their continued attacks throughout Iraq and Syria, and they are an economic asset to support future operations.”

Brigadier General Ken Watkins, the former Canadian Forces Judge Advocate General, pointed out in an October 2014 Just Security post (“Sustaining the War Effort: Targeting Islamic State Oil Facilities”) that bombing oil facilities that were supporting ISIS forces in the field would be well-accepted under traditional interpretations of international law.  However, attacking them simply because they were producing revenue was controversial because many experts around the globe believe that under the contemporary law of war the connection between such money-generating activities and military action are too remote to justify striking them.

General Watkins expressed the concern that extending attacks to warsustaining targets was “[h]istorically…an issue that stands at the edge of a very steep and slippery slope that has led directly to considerable humanitarian suffering.”  The reason for his unease is obvious: many if not most warsustaining activities – particularly if they are centered on simply producing income as opposed to military material – involve civilians and civilian objects.

Still, the U.S. has always taken a broad view of war sustaining activity as being legitimately targetable.  In discussing the kind of enemy property that could be “imperatively demanded by the necessities of war” to be seized or destroyed “in order to diminish the enemy’s ability to conduct or sustain operations,” the Manual provides some illustrations.  Specifically, it cites the destruction of “the Confederacy’s cotton during the Civil War in order to deprive the Confederacy of the ability to fund its military operations” as an example of legitimate targeting.  Likewise, it also states that “coalition forces during Operation ENDURING FREEDOM destroyed narcotics in order to weaken the Taliban and al Qaeda’s ability to finance their operations.” (p. 264).

At Loyola it was pointed out that in January an ISIS bank near Mosul was bombed, reportedly destroying millions in cash.  (And Secretary of Defense Ash Carter has vowed to “continue these kinds of operations as part of the overall effort to degrade [ISIL’s] financing.”)  The issue raised by some conference participants is an understandable one, much the same as that raised by General Watkins: exactly where is the line on legitimate attacks on warsustaining objects, especially with regard to revenue-raising targeting.

Would, for example, the IRS be a valid target in some future conflict?  Wall Street?  The individual taxpayer?  With respect to the taxpayer, let’s not forget that one of Osama Bin Laden’s justifications for attacking American civilians set out in his infamous “letter to America” included that fact that:

The American people are the ones who pay the taxes which fund the planes that bomb us in Afghanistan, the tanks that strike and destroy our homes in Palestine, the armies which occupy our lands in the Arabian Gulf, and the fleets which ensure the blockade of Iraq. These tax dollars are given to Israel for it to continue to attack us and penetrate our lands. So the American people are the ones who fund the attacks against us, and they are the ones who oversee the expenditure of these monies in the way they wish, through their elected candidates.

In the aftermath of the bombing of the ISIS bank, Professor Daphné Richemond-Barak rhetorically posed the question in another Just Security post; “Is Money a Legitimate Target?”  In answering her own question, she contends that the “well-established rule that civilians cannot be targeted based solely on the ground that they pay taxes to the state suggests that money does not turn people (or objects) into legitimate targets.”

She adds that what she calls ISIS’s “sophisticated bureaucracy and involvement with the civilian population” causes her to conclude that at least some of the money “was likely destined for the civilian population either through subsidies, social work, judicial services, or school funding.”  Accordingly, she “doubt[s] we would accept an interpretation of the law that would regard states’ cash as a legitimate target because the funds are used to finance the military effort.”

I do appreciate the unease expressed by some conference participants as well as that of General Watkin and Professor Richemond-Barak.  That said, the specific facts do matter.  Consider that in mid-January, news reports cited the attack on the bank as one reason why ISIS was forced to cut its fighters salaries by 50%.

And money, it seems, matters a lot to ISIS fighters.  Last December The Atlantic reported a study that found that ISIS fighters “identified money as a significant motivator, as significant as jihad itself” adding that this “suggests that reducing ISIS’s ability to raise funds will decrease its allure.”  It is likely, I would suggest, that information along this line about the kind of very specific impact on ISIS’s fighters that the loss of revenue could cause, played a role in the decision first to strike oil facilities and, later, the bank.

My own take is this: I believe that as nations seek innovative ways to debilitate ISIS (and also minimize the risk to civilians), they will be very open to new ideas.  If strangling the money flow diminishes the allure of someone becoming an ISIS fighter, they are going to try to do it.  And why not?  Where there are indications that, under the circumstances, the connection between the interdiction of the money flow and the ability to field fighters is as concrete and direct as seems to be the case here, there is no legal reason in my view not to try.

To be clear, I don’t advocate any interpretation of warsustaining objects that declares, ipso facto, that a state’s (or, in the case of ISIS, a pseudo-state) finances are a bona fide target in the same way a tank or warship would be viewed, but I also don’t believe that we should categorically exclude a state’s revenue – and revenue sources – from targeting, particularly in a situation where the risk to civilians is not excessive, and the nexus to the diminution in fighting ability is proximate and significant.

In short, it is very fact-specific determination, and one which could often be very complex and difficult.  This isn’t the kind of straightforward “bright line’ situation we all would want.  But the reality is that there are many aspects of war – and, for that matter, the law – that are complex and difficult in the 21st century.

Moreover, given that the U.S., Russia, Great Britain, and likely other nations have struck ISIS oil facilities, and the fact that there has been very little outcry against the bombing of the bank, I think we may be witnessing an evolution of law of war towards a broader international acceptance, at least in limited circumstances, of a norm that the U.S. has long recognized.

In closing her Just Security post, Professor Richemond-Barak seems to lament that “[u]ntil January 10, the fight against terror financing had been left to international treaties, cooperation, domestic controls, and legislation.  It has now entered the realm of targeting.”  In light of the relative success that targeting seems to have achieved in a surprisingly short period, we should welcome the change, but consider it an additional tool, and not a replacement of the nonkinetic approaches.

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