Guest Post: Major Matt Montazzoli on “Damned If You Do: Targeting and Dams Under the Law of War “

There has been a lot of reportage recently that alleges civilian harm in various U.S. operations in the Middle East.  In too many instances, however, the explanation (if any) of the applicable law is inadequate, distorted or outright erroneous.  To help readers better understand the law so they can make their own assessment, you’ll see a number on posts on Lawfire^® with explanations by real experts.

Major Matt Montazzoli is one of them (take a look at his awesome bio below his essay!).  His discussion illustrates what I believe is an axiom usually applicable to any analysis of the law in warfighting settings: things are (almost?) always more complicated than they seem.  This is surely the case with the targeting of dams.  

Fortunately, Matt has a remarkable ability to make complex matters accessible to everyone.  For example, regarding the reports about U.S. operations involving the Tabqa Dam in Syria, he notes that “the headlines focused on the dam’s presence on a ‘no strike’ list.”  He makes the important point that, actually, the list is “an administrative classification largely divorced from the legality of a strike under international law.”

Obviously, headline readers could have easily but wrongly assumed the mere presence of a location on an administrative “no strike” list necessarily meant it was illegal under the law of armed conflict (LOAC) to strike it.  In truth, it is quite possible that something targetable under LOAC could nevertheless be placed on the “no strike” list for purely policy reasons.

Another example: Matt offers this insightful critique of Additional Protocol 1 of the Geneva Conventions:

Article 56 forbids operations that may cause severe damage regardless of the likelihood of that harm actually coming to pass. Unlike the LOAC proportionality analysis which deals in terms of expected harm, article 56 forecloses attacks on lawful targets because of possible harm.

Article 56 fails to account for changes to weaponeering or attack techniques that might dramatically reduce the chances of harm from a strike. By circumscribing the inquiry to whether severe harm may occur the article’s framework fails to incentivize precision munitions or techniques that reduce the likelihood of harm to civilians.

Matt also explains how an enemy force controlling a dam could easily use it for military purposes:

The Nazis used dams to tactically release flood waters in an effort to frustrate allied river crossings, and U.S. forces feared ISIS might use the Tabqa dam at the center of the controversial strikes by “intentionally flooding allied forces downstream.”

I would also suggest that such flooding could to put significantly more civilians in harms way than might be put at risk by an attack aiming to wrest control of it back into friendly hands.  This is why failing to make the attempt to recapture a dam doesn’t necessarily save more civilians lives over time.  In many ways, the discussion highlights a principle we’ve discussed on Lawfire^® before: the moral hazard of inaction in war.  

Additionally, Matt makes this vital observation: “a willingness to articulate and defend U.S. interpretations may serve to hold back a flood of public criticism and a rising tide of potential lawfare.”  I could not agree more. 

It is great that individuals step forward to “articulate and defend U.S. interpretations,” but the U.S. government has a formal responsibility as well.  Internationally-renown LOAC expert (and Lawfire^® contributor!) Mike Schmitt noted in a a recent essay:

Unfortunately, key States, including the United States, appear hesitant to set forth their views on how LOAC should develop and, more importantly, be interpreted. In particular, they have remained relatively silent in the face of major efforts by the ICRC and academia to restate customary LOAC .

The U.S. and its allies simply have to do better.

For now, however, for those who want to be intellectually-equipped to make their own judgement about what they see in the media about targeting dams, Matt’s essay is a ‘must-read’.

Damned If You Do: Targeting and Dams Under the Law of War*

by

Major Matt Montazzoli, USA

Recent New York Times reporting revealed that in 2017 a U.S. special operations task force struck ISIS fighting positions near a massive dam in Syria, a bombing run that supposedly “could [have] cause[d] a flood that might kill tens of thousands of civilians.” Set against a litany of congressional, official, and public skepticism about civilian harm from the American air war against ISIS, the reported strike near the dam prompted criticism.

While the headlines focused on the dam’s presence on a “no strike” list — an administrative classification largely divorced from the legality of a strike under international law — the underlying fact pattern serves as a useful case study for the legal landscape surrounding strikes near dams and other objects with potentially outsize collateral effects.

Targeting Dams: History

Dams have long been key terrain for military operations. During World War 2, allied forces famously targeted hydroelectric dams in Germany’s Ruhr Valley with a “dambusters” air raid that sought to deprive German armaments production of hydroelectric power, but resulted in the drowning of hundreds of civilians and slave laborers.

The bloody, shambolic battle of the Hurtgen Forest was partly an attempt to seize strategic dams and prevent the flooding of the Allied axis of advance – which the Nazis did anyway. United Nations air forces targeted dams during the conflict in Korea with the express purpose of flooding rice paddies to cause privation, and the United States faced accusations of systematically targeting dams and dikes in North Vietnam.

The Vietnam allegations provided impetus for special international law protections for dams, detailed below. Nonetheless, the United States-led coalition struck dams during the Gulf War and NATO did the same in Kosovo, although U.S. forces took pains to secure major dams instead of striking them during the 2003 Iraq War.

Targeting Dams: The Law

The law of armed conflict (LOAC) rules governing distinction limit attacks to lawful military objectives. An object – including a dam – may become a lawful military objective if it makes an effective contribution to military action by its nature, location, purpose, or use, and if the object’s partial or total destruction or neutralization offers a definite military advantage in the circumstances ruling at the time.

Thus, an otherwise civilian dam that has been fortified or that directly supplies power to war sustaining industries might forfeit protections and be liable to attack, so long as the direct and concrete military advantage to be gained by an attack was not outweighed by the expected harm to civilians or civilian objections, the proportionality rule.

Attacks on military objectives that comply with proportionality still require the attacker to take feasible precautions to reduce collateral damage, including methods to reduce the chances of releasing water held back by a dam. Finally, the principle of distinction is reciprocal, requiring defenders not to locate military forces near civilian objects, a rule regularly and flagrantly violated by ISIS, including their use of the Tabqa dam as a “fortress.”

Article 56 of Additional Protocol I (AP I) governs attacks on works containing “dangerous forces,” explicitly including dams, during international armed conflict (Article 15 of AP II imposes similar requirements for non-international conflicts).

Article 56 forbids attacks on dams themselves or “[o]ther military objectives located at or in the vicinity of these [dams] … if such attack may cause the release of dangerous forces … and consequent severe losses among the civilian population.”

The article makes this protection from attack inviolable unless the dam “is used for other than its normal function and in regular, significant and direct support of military operations.” Once protections are forfeit, the usual law of war principles, especially proportionality and feasible precautions in attacks, must still be satisfied.

The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) does not specifically protect dams from attack and restricts only “deliberate manipulation of natural processes” that would result in “widespread, long-lasting or severe effects as the means of” harming the enemy.

ENMOD will rarely apply to strikes near dams, as the consensus is that “simple diversion of a river [or] destruction of a dam … do not constitute ‘manipulation’ as contemplated under the provisions of ENMOD” because even releasing a massive flood would not alter the “natural processes, dynamics, composition or structure of the earth” as a whole.

Targeting Dams: The U.S. View

The United States did not ratify AP I and does not accept article 56’s strictures as binding customary international law.

Article 56 only protects dams from attacks that may result in “severe” harm to civilians. The protocol does not define severe, although the official commentary (unhelpfully) suggests severe “is equivalent to ‘important’ or ‘heavy.’”

It is tempting to assume that civilian harm would be severe if it outweighed the direct and concrete military advantage to be gained by an attack —  the standard LOAC proportionality test. That definition sends the analysis into a bit of a LOAC col-de-sac, as this view would render article 56’s special protections illusory or unnecessary since  any attack prohibited because it may cause severe harm would already be prohibited because it does not satisfy proportionality.

In any case, c(3) makes it clear proportionality is a distinct inquiry from that of severity. It does not take an especially clever lawyer to realize that one can drive a bouncing bomb through the loophole created by a vague definition of severity, and the commentary admits that “If such an attack cannot cause severe losses it is legitimate.”

Article 56’s extension of a protective bubble to purely military objects located near dams is also problematic. Even though the protocol requires combatants not to locate military units and objects near dams, the plain fact is this protective bubble creates a safe haven for enemy troops or equipment, incentivizes colocation, and encourages combatants to seek ‘carve-outs’ from the protective scheme.

Article 56 forbids operations that may cause severe damage regardless of the likelihood of that harm actually coming to pass. Unlike the LOAC proportionality analysis which deals in terms of expected harm, article 56 forecloses attacks on lawful targets because of possible harm.

Article 56 fails to account for changes to weaponeering or attack techniques that might dramatically reduce the chances of harm from a strike. By circumscribing the inquiry to whether severe harm may occur the article’s framework fails to incentivize precision munitions or techniques that reduce the likelihood of harm to civilians. A review by the Chairman of the Joint Chiefs of Staff pointed out that article 56’s ambiguity would make it “difficult to determine exactly which dams … will be protected and which will not.”

The regime laid out in 56(2) for forfeiting protections is similarly subjective. A strike may be permitted only if the dam “is used for other than its normal function and in regular, significant and direct support of military operations.” This ignores the reality that a dam can both perform its regular function, defined by the commentary as “containing an actual or potential mass of water,” and directly support military operations.

The Nazis used dams to tactically release flood waters in an effort to frustrate allied river crossings, and U.S. forces feared ISIS might use the Tabqa dam at the center of the controversial strikes by “intentionally flooding allied forces downstream.”

The same ambiguity and subjectivity that plagues the definition of severe also comes into play when assessing the trifecta of factors required to strip protections – regularity, significance, and directness.

The U.S. view is that attacks on dams, or enemy units located near dams, are permissible so long as the strike is conducted in accordance with other applicable rules, including those governing discrimination and proportionality. This ‘baseline’ LOAC approach allows for consideration of the likelihood of harm, incentivizing the attacker to take feasible precautions to reduce the chances that harm comes to pass.

Despite impressive depth of reporting, the facts required to assess the Tabqa dam strike remain classified or otherwise unavailable to the wider public. While unsubstantiated accusations of war crimes for an attack near a dam are irresponsible, so is ignoring the importance of divergent positions on the lawfulness of strikes near dams.

The future of conflict is multi-national, and the U.S. tendency to adopt Law of War positions that are outliers from our partners and allies will demand careful coordination.  Legal interoperability and a willingness to articulate and defend U.S. interpretations may serve to hold back a flood of public criticism and a rising tide of potential lawfare.

About the author:

Major Matt Montazzoli is an active duty Army judge advocate, currently assigned as an Operations Law Officer (Military Personnel Exchange Program), 1st Division / Deployable Joint Force Headquarters, Australian Army at Gallipoli Barracks, Brisbane, Australia. He previously served as the Regimental Judge Advocate for the Army’s 75th Ranger Regiment and as the senior legal advisor for a joint special operations task force responsible for counterterrorism in Afghanistan.

Matt holds a Masters of Operational Studies from the U.S. Army Command and General Staff College at Fort Leavenworth, Kansas; a LL.M from the Judge Advocate General’s Legal Center and School at Charlottesville, Virginia; a J.D. from the University of Colorado School of Law at Boulder, Colorado; and a B.A. from Marymount University at Arlington, Virginia. He is a graduate of the Joint Special Operations University Special Operations Sensitive Activities Course, the Joint Firepower Course, the Joint Operational Fires and Effects Course, the Joint Targeting School Collateral Damage Estimation Course, and the Rule of Law Short Course.

Matt is married with three daughters and spends his spare time baking and biking.

Disclaimers

* The views and opinions expressed here are the author’s and do not necessarily reflect the official policy or position of the U.S. Army, the Judge Advocate General’s Corps, the Department of Defense, or any other agency of the U.S. government.

The views expressed by guest authors also do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!