Much of the legal analysis about the United States and its coalition partners’ airstrikes in Syria to date has concentrated on whether such strikes are lawful. The commencement of aerial attacks on the night of Sept. 22 raises a new legal issue, the criteria being applied to justify strikes on the wide range of targets being attacked during this aerial campaign, especially civilian infrastructure such as oil refineries.
Many targets bombed by the coalition have been obvious military objectives such as command posts, logistics facilities, and vehicles. Standing out, in the words of Pentagon Press Secretary, Rear Adm. John Kirby, are the “12 ISIL-controlled modular oil refineries located in remote areas of eastern Syria” that were struck by aircraft from the US, Saudi Arabia, and United Arab Emirates on the night of Sept. 24-25.
These targets were not completely destroyed, but were rendered inoperable with the hope that they might be brought back on-line in the future by members of the Syrian opposition groups. The reasons Kirby provided for striking these targets were that “[t]hese small-scale refineries provide fuel to run ISIL operations, money to finance their continued attacks throughout Iraq and Syria, and they are an economic asset to support future operations.” Of particular interest is the strategic nature of these attacks, which are aimed at eliminating the “war sustaining” capacity of these targets.
What must always be kept in mind is that these strikes can be precedent-setting, even when taken against “terrorists.” Historically, this is an issue that stands at the edge of a very steep and slippery slope that has led directly to considerable humanitarian suffering.
Under humanitarian law, the authority to strike at military objects is generally broader than attacking persons, who in the context of the Islamic State must be members of its organized armed group, or a civilian “taking a direct part in hostilities”. As Canadian academic Leslie Green noted, military objectives may include ‘economic targets that indirectly but effectively support enemy operations.’ Rule 23 of the 2009 HPCR Manual on International Law Applicable to Air and Missile Warfare, (otherwise known as the Air and Missile Warfare Manual), reflects this broader target set, noting that civilian “[o]bjects which may qualify as military objectives …include, but are not limited to, factories, lines and means of communications (such as airfields, railway lines, roads, bridges and tunnels); energy producing facilities; oil storage depots; transmission facilities and equipment.”
However, there is disagreement over how broadly the legal authority for such strikes can be drawn.
The US has adopted criteria that would allow it to attack objects that by “their nature, location, purpose, or use, effectively contribute to the war- fighting or war-sustaining capability of an opposing force,” according to the definition of a military objective found in the United States Military Commission Act of 2009, §950p(a)(1). This approach, which seems to have been first referred to in the US Navy’s Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, appears to be based on a Civil War-era rationale that destroying raw Confederate cotton was justified because its sale provided funds for the purchase of arms and ammunition.
In contrast, in terms of treaty law, the wording in Additional Protocol I to the Geneva Conventions, of which 89% of states are parties, including Saudi Arabia and the United Arab Emirates, makes reference to the more narrowly phrased requirement that an object make an effective contribution to “military action.” This raises the issue of whether the customary law basis to target such military objectives is broader than the authority found in treaty law.
That this is a controversial issue was identified in the Commentary to the Air and Missile Warfare Manual, where specific reference was made to the example of attacks on “export oil production intended for Neutrals since the profits finance the war effort.” The Commentary indicates that unlike the situation of “oil or petrol dedicated to military use,” the “majority of the Group of Experts took the position that the connection between revenues from such exports and military action is too remote.” Interestingly, the crux of the issue was identified as being “revenues from exports of oil which is not put to military use by the enemy” (see p. 110, para. 2).
If the purpose is to stop refined oil from being supplied to Islamic State military forces, then it appears to logically fit within the scope of “war-fighting”, which has been recognized as being basically the same as “military action.” However, if these attacks are intended to stop the sale of smuggled oil, the proceeds of which provide “fuel” for Islamic State activities including military action, the military objective determination is potentially more controversial. On one level the terrorist nature of the Islamic State combined with the illegal nature of oil smuggling makes it emotively easier to apply the broader rationale for conducting such strikes. Further, non-kinetic means such as better border enforcement by adjacent states does not appear to be a fully effective option. However, a failure or inability to stop smuggling at the borders would not justify an attack.
If targeting is extended to other parts of the oil smuggling network, this will raise an important question about the effect on the civilian population. Consideration must be given to the extent of civilian involvement in the well-established criminal oil smuggling activities that appear to have been in place for a considerable time in the region. As reported on Sept. 15 in Al-Monitor, Islamic State-related smuggling extends to villages on both sides of the Syrian-Turkish border, where local inhabitants use small-diameter irrigation piping buried under fields, and crisscrossing through backyards, to illegally transport oil from tankers on the Syrian side. Where would the “war-sustaining” line be drawn with respect to these civilian smuggling networks? Could the bombing campaign ultimately be extended to these wider tanker/pipeline distribution networks?
The resistance to a “war-sustaining” approach centers around the idea that such an approach might ultimately lead to indiscriminate attacks, and the type of wide-ranging aerial assaults with elevated civilian casualties that were so controversial during World War II.
This is not the first time this issue has arisen in the post-9/11 operational environment. NATO reportedly contemplated attacking drug production facilities and drug traffickers in Afghanistan because the Taliban obtained funds by taxing such activity, as well as by providing security. A 2009 report to the US Senate Foreign Relations Committee noted that the authorization to use lethal force in this context in Afghanistan “caused some countries to question whether the killing of traffickers and destroying drug labs complied with international law.” Filters were said to have been put in place to ensure “the alliance remains within the bounds of the law.”
The issue is the degree of remoteness between the object being attacked and its connection to military action, as well as identifying the military advantage to be gained from the strike. Underlying much of the concern is that too remote a connection makes the killing or injury of civilians in, or around the target difficult to justify.
There remain a number of questions regarding these attacks:
- Who, exactly, is running the “ISIL-controlled” oil production facilities?
- What criteria are being applied to identify persons as members of the organized armed group of the Islamic State?
- Are such facilities civilian operated?
- Can the attacks be carried out in circumstances where civilian causalities can be avoided altogether; if not, what steps have been taken to minimize the collateral impact of an attack?
Those planning and deciding these attacks appear not to have applied the “near certainty” standard that no civilians will be killed or injured, which has been allocated to drone strikes in areas where active hostilities are not taking place. The attacks may be easier to justify if members of the organized armed group of the Islamic State, who qualify as lawful targets, run the facility, or if it can be determined any civilians located there were taking a direct part in hostilities. A number of states consider performing functions such as combat support and combat service support (which includes the supply of oil, fuel, and lubricants) as qualifications for armed group membership or direct participation in hostilities. However, it is not clear that producing refined oil, rather than simply storing or transporting it, readily falls within a combat support function. In any event, the personnel involved might also qualify as fighters because of other military functions they perform for the Islamic State, although they have civilian status until membership in an organized armed group is established.
The answer may simply be that the destruction of the facilities can be justified solely on the basis of providing oil to Islamic State military forces. Intelligence linking that refined oil with military action would assist in providing a legal basis for the strikes. It could also help determine the military advantage to be gained from the attacks, which is a crucial component of the proportionality assessment concerning the lawfulness of any collateral civilian casualties or damage caused by the strikes. Focusing on this link to military action could also likely mean that actual smuggling networks would not be targeted.
However, it also may be that the yardsticks are moving closer toward the US’s “war-sustaining” approach. There may be pressure for change, as it is not clear that a decade ago anyone would have considered using military forces to attack pirate infrastructure in Somalia in what appears to have been a law enforcement context. It may even be that the ability to use precision strikes against oil production facilities in a context where there are likely very few truly strategic targets, and limited potential for collateral casualties lessen concerns about the air campaign degenerating into indiscriminate attacks. However, those concerns would not completely disappear, since the potential remains in the future for strategic air campaigns to be conducted in inter-state conflict, or by states against better well-established non-state actors such as Hezbollah.
The question is where to draw the line regarding remoteness? It will be interesting to see how this issue progresses as more states, which may seek closer fealty to narrowly worded treaty texts than broader interpretations of customary humanitarian law, engage in the air campaign against the Islamic State.