War-sustaining targets: Scholars can better help develop norms if they focus more on understanding the military perspective of evolving state practice

Does pay matter to ISIS fighters?  And does the bombing of oil fields impact that?  A respected academic questions whether coalition strikes on ISIS money-garnering oil facilities are legit.

Some context: in a December 2015 article in Atlantic magazine discussing a Lebanon-based Quantum Communications report that examined the motivations of ISIS fighters it said:

[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 ISIS’s ability to raise funds will decrease its allure.

Over on Just Security, however, highly-regarded Yale Law Professor Oona Hathaway has launched a stinging critque on what she interprets as the DoD Law of War Manual’s assessment of the application of the principle of proportionality in connection with attacks.  That deserves much serious discussion, but for now I want to offer some observations on another aspect of her post, that is, her reference to coalition strikes on Islamic State (ISIS) revenue-producing oil facilities.  This issue has generated much academic commentary that is mostly critical (see e.g., here, here, here, and here, but see also here).

Professor Hathaway notes that the “weight of scholarly opinion has long maintained that such objects are not legitimate military targets” but does cite Ryan Goodman’s excellent discussion of the “legal pedigree” of the established U.S. position which supports striking war-sustaining economic targets in certain situations.  She also concedes that practice of several key states is now consistent with the U.S. approach (at least in this instance) acknowledging that “French, Russians, and UK have joined the US in operations against ISIL oil revenues.”

As Ryan suggests in his piece, the U.S. view on attacks on war-sustaining targets is not of recent vintage and is not a ‘blank check’ (and he identifies several sensible limiting measures).  With respect to attacks on ISIS oil-targets, this isn’t simply random bombing of something that happens to have economic value.  Rather, they are operations where the nexus to a degradation of ISIS’s war-fighting ability is quite real, even though few scholars seem to cite it.

Consider that when CNN reported earlier this year that ISIS had to cut the pay of its fighters by 50% it was pointed out that:

[O]ne major source of pressure on ISIS’ finances is the U.S.-led coalition’s bombing runs. Airstrikes are taking aim at the ISIS oil business: blowing up oil trucks, storage tanks, mobile refineries and other oil field equipment.

This underlines the importance of scholars needing to consider the military perspective of evolving state practice.  In point of fact, nations are trying to stop a phenomenally vicious enemy who, the UN tells us, is “selling, crucifying, and burying children alive.”  Here’s the key: by attacking war-sustaining objects, states are able to put pressure on ISIS, yet do so in a way that minimizes the risk to civilians.  In my view, scholars ought to applaud this approach.

It is imperative that the law of war evolve to stay relevant to honorable states and their militaries confronting complex and dangerous challenges.  After all, as the International Military Tribunal at Nuremberg concluded, the “law is not static, but by continual adaption follows the needs of a changing world.”  In the case of ISIS, 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.

We have to keep in mind that a key traditional restraint on the behavior of belligerents – reciprocity – has all but collapsed, at least with respect an enemy like ISIS who is indifferent to the law of war.  In 2014 Ken Anderson warned:

Obligation without reciprocity risks breakdown even faster where one side is pressed to protect the civilians of both sides put at risk because that’s how the other side deliberately wagewar, not merely from indifference to them.  A system of formal reciprocity in the rules of war (each side has the same formal obligations), but also independence of obligation to the rules of war (each side’s obligation is independent of what the other side does, including if the other side violates the rules) over time is likely either to rupture in crisis or else simply have less and less purchase as universal rules.

I’ve suggested that the principle of “honor” might provide part of the rationale for observing the law of war in the absence of reciprocity, but there are those who still cling to the notion that reciprocity works against today’s adversaries.

Last May Peter Maurer, the ICRC’s president, expressed frustration at the very idea that some officials were asking him “If ISIS doesn’t behave, why should we behave?’”  I don’t know the context of their queries, but I can imagine that it could come from questions posed by their young soldiers, some of whom might be at risk of concluding that the law is not just endangering them, but is an obstacle to defeating a ruthless enemy.

Such concerns are real, and ought not be brushed off.  In response Mr. Maurer, however, just “tick[ed] off the tenets he preaches daily” including this one: “You treat detainees humanely, because you know the other side will also treat detainees humanely.”

Really?  I rather doubt there is a soldier on planet Earth who thinks that if captured by ISIS, he or she would be treated humanely.  The images of the Jordanian pilot captured by ISIS being burned alive in a cage are simply too well known.

So, yes, even if it is true that an international norm is evolving to one more consonant with that of the U.S.’s, it may be more profitable for scholars to help reconcile the bona fide needs of states fighting an adversary like ISIS, with appropriate legal and normative constraints (as Ryan seems to be doing).  This is especially so when, as here, what states are doing is more protective of civilians than so many of the alternatives.

I’ve always believed that the academic academy has much to offer the development of the law of war, but I do get concerned when (as Sean Watts relates here) academic analysis gets weighed too heavily viz-a-viz state practice.  This is especially so when that practice is by rule-of-law democracies who are fairly considered to be specially-affected states given their involvement in contemporary conflicts.

Law, and especially the law of war, depends upon its being rational and workable in the context in which it is sought to be applied.  No good can come from warfighters concluding that the law is out of touch with the harsh realities they see on today’s battlefields.

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