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Reflections on Targeting: Looking in the Mirror

Questions about targeting the “money” of the self-styled Islamic State (IS) have been raised in this forum. Images of missile strikes on financial warehouses and money floating in the air, literally scattered to the winds, provide tangible evidence of the efficacy of this aspect of the strategic air campaign being conducted by Coalition powers. In newspaper reports, government sources confirm the negative impact on IS by suggesting its fighters have had their pay cut in half, and discontent is being sown amongst their ranks to the point some fighters are seeking to defect.

As Marty Lederman has recently highlighted when introducing Ryan Goodman’s excellent contribution to the discussion, many questions remain, most notably, “does this mean that virtually all economic enterprises are legitimate targets, simply because of the indirect advantages they offer to the military arm of the state?” This is an issue also identified by Daphne Richmond-Barak in an earlier post when she noted:

I doubt 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. We would likely object that the money also finances a plethora of other non-war related projects.

Money provides important “fuel” for the insurgent/terrorist efforts of IS, al-Qaeda, and myriad other non-State armed groups fighting States, with their military operations being funded through a variety of means including kidnapping, smuggling, extortion, and other criminal activity. As al-Qaeda theorist Abu Mus’ab al-Suri identified, it is “high financial capabilities” that enables cells to operate both inside and outside “Islamic” territory (against the “near” and “far” enemy).

However, what is different about the Coalition’s recent cash-targeting attacks is the use of kinetic force rather than law enforcement to physically destroy the money, as well as portions of the financial infrastructure of IS. The broadening of potential targets to those that are “war-sustaining” raises questions about the potential for overreach in terms of the targets struck, excessive collateral civilian death and injury, and adverse humanitarian effects for the vast majority of civilians who are not taking a direct part in hostilities.

“War-Sustaining” vs. “Military Action”

Some of the current discussion has centered on whether the US’s substitution of the wording “war-sustaining” for “military action” in Additional Protocol I’s definition of military objective represents a broadening of the types of objects that can be lawfully attacked. The shift raises crucial questions, including: What are the limits on targeting under the “war-sustaining” approach? The legal framework introducing restrictions on targeting was largely developed in response to the horrific civilian casualties and wide-spread destruction during the “total war” of World War II. It is worth remembering strategic bombing played a significant role in that destruction.

While various arguments have been put forward suggesting “military action” encompasses “war-sustaining,” such an interpretation must be tempered with the contrary view found in the 1995 San Remo Manual on International Law Applicable to Armed Conflicts at Sea. The manual’s accompanying Explanation states:

The Round Table [with many AP I country participants] considered whether or not it should include the expression ‘military action’ or some alternative expression such as ‘war effort’ or ‘war sustaining’ and eventually decided that these alternative expressions were too broad. (para. 40.12)

Ryan relies on the Bothe, Partsch, and Solf New Rules for Victims of Armed Conflict in reaching the conclusion that, under some circumstances, a revenue-generating object can make an effective contribution to military action. However, that 1982 publication does not appear to represent the views of most contemporary humanitarian law scholars, and he acknowledges a narrower view of military objects is reflected in the views of experts found in recent manuals on air and missile (2010) and cyber warfare (2013).

Even if the US did not feel the “war-sustaining” wording broadened the meaning of “military objective” when it was developed, it is still evident that was the “operationalized” effect. In discussions I have had over the years with practitioners, including from the US, that is exactly how it has been understood: a broader set of targets based on a unique US Civil War precedent.

One might even ask why, if “war sustaining” effectively means “military action,” was there a need to adopt US-specific wording? It might have been a reaction to the ICRC’s tactical view of targeting. However, the strategic aspects of targeting were recognized by States (i.e., “overall” anticipated military advantage wording of Article 8(2)(b)(iv) of the 1998 Rome Statute) long before the US specific “war-fighting, or war-sustaining” approach was transferred from national military doctrine into legislation through the Military Commissions Act. While it is not clear this was consciously done to ensure a different standard for US operations, the effect appears to be one of solidly placing the country in an outlier position. This is not a unique position for the US to be in regarding AP I, although it has recognized the convention-based targeting provisions are generally reflective of customary international law.

Small Differences With Potentially Large Consequences

It can be argued the “delta” between targeting in strategic air campaigns (particularly when combined with air or maritime blockades) conducted under a more limited AP I interpretation, and a broader “war-sustaining” approach is a narrow one. The “war-sustaining” concept has its roots in naval and air warfare, which historically invoke broader issues of economic warfare. However, a difference still exists, even if a limited number of States may be willing to target IS on this basis. As with the greater recognition of the right of a State to act in self-defense, renewed reliance on the historic “unwilling and unable” test, adoption of the Hamdan v. Rumsfeld non-international armed conflict categorization, and increasing emphasis on the intensity of violence standard under the Tadić criteria for armed conflict, traditional interpretations of international law have been forced to change as States react to 21st century non-State actor threats. Is this broadening of potential targets simply part of that trend?

One concern is it represents an importation of “Just War” principles where special/different rules are applied against “bad” actors. The question must be asked whether the use of a “war-sustaining” targeting standard against IS has largely escaped critical comment because it is being carried out against such a reprehensible “terrorist” organization. What about the foundational “equal application principle” of IHL where the law is viewed as applying equally to all parties without consideration of the justness of their cause?

If Just War principles are creeping into the fight against IS, that represents yet another slippery slope that should be approached with caution. It might be argued these “terrorist” organizations constitute a different type of enemy, organizationally and operationally, making money an essential operational “center of gravity.” This argument appears to founder on the reality that jihadists have embraced revolutionary warfare doctrine with the third stage involving the adoption of semi-conventional military operations and State-like governance responsibilities over territory. Indeed, while strategic bombing traditionally has significantly less application to non-State actor conflict, revenue-generating targets are available to be struck exactly because IS governs territory.

Looking in the “War-Sustaining” Mirror

What should cause pause is what this means for conflicts between States. If it is permissible to attack a revenue-generating industry of this non-State actor (e.g., oil production), as well as the warehouses and even private residences housing “cash,” does that mean these are also valid targets in inter-State conflict? What parts of a legitimate State’s economy, such as that of the United Sates, would be off limits in a “war-sustaining” targeting paradigm?

Ryan has identified one limiting factor might be “that the economic contributions should be confidently traced through a strong causal connection to an enemy’s military action.” It is not clear if that was done in the case of IS, or how confidently it could be assessed regarding warehouses of cash amassed not only by criminal activity, but also from forms of “taxation.” Were these targets repositories of money used exclusively, or even predominately, to pay fighter’s salaries and acquire weapons, or were they and the attendant storage sites associated with a governance function? As Daphne notes in her post, some of money “was likely destined for the civilian population either through subsidies, social work, judicial services, or school funding.” This is exactly what needs to be established before strikes are conducted. A public accounting of the exact nature of the causal connection would be helpful legally, from a public relations perspective, and to properly situate future arguments concerning reciprocity.

In a world where States have increasing access to high-tech arsenals (including cyber weapons) capable of inflicting strategic damage, the possible targeting of economic engines of modern States — which ultimately fuel their security and military activities — should be looked at closely and soberly through the “cold stark mirror of reciprocity.”

Personnel Reflections

This is not the only “reflection” that should be closely studied. What about the persons working in those industries and managing the economic affairs of a State? With the lawful targeting of persons being restricted to members of organized armed groups and individual civilians taking a direct part in hostilities (DPH), how is such membership and participation defined? Contrary to the narrower criteria identified in the ICRC Interpretive Guidance on the Notion of Direct Participation, many States recognize that targeting of members of an organized armed group should include persons performing a combat support and combat service support analogous to State armed forces. Individual civilians may also be at risk when providing direct logistics support. However, this “direct” support does not encompass the full breadth of the US concepts of providing “substantial” or “material” support to terrorism applied when detaining and trying persons during the post-9/11 conflict.

There is a significantly narrower legal authority to kill direct participants in hostilities than to detain or prosecute their “supporters” under international law. Key factors in meeting the international test can include the position a person holds within an organized armed group, and the causal connection between the function being performed and actual conduct of hostilities. Abu Sayyaf, the financier killed in a 2015 Special Forces raid, was a lawful target because of his position and the function he performed within the IS armed group. However, it is not clear a person working in a “money” warehouse, like a worker at an oil field, is not simply a civilian performing an administrative role related to governance or participating in commerce rather than taking a direct part in hostilities. This matters in terms of the proportionality assessment applied during targeting. Without positive evidence to the contrary, that worker’s anticipated death or injury would have to be assessed as a potential collateral casualty (see Beth Van Schaack’s post regarding oil tanker drivers for more on this point).

Reference in the 2015 Defense Department Law of War Manual to factory workers in rear areas not directly participating in hostilities (p. 228) goes some way in addressing this issue. However, the Manual (p. 1048) also relies on Daniel Bethlehem’s self-defense Principle 9 indicating the failure of a territorial State to prevent “material support” to terrorism underpins a threatened State’s right to act in self-defense. Daniel’s threshold Principles (p. 6, note c) seek to distinguish direct participation in a self-defense context from its humanitarian law meaning, although Principle 7 suggests armed action can be taken in defense against those taking “a direct part in … [armed] attacks through the provision of material support essential to the attacks.” It is not clear what “material support” encompasses in these Principles, or its relationship to DPH. As outlined in Humanitarian Law Project, “material support” is an exceptionally broad concept under US law. Given the limited public disclosure of US targeting standards, it is not clear whether this is another area where nation-specific terms might impact on targeting. If so, this would constitute a significantly broader interpretation of DPH, and will be at odds with the international consensus on this issue. To ensure clarity, it should be emphasized that the broader “substantial” or “material” support terms are not relied on when targeting in a self-defense or any other context.

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The use of airpower is an important element of the overall action being taken to defeat IS. History has shown that limits matter in terms of restricting the death and destruction associated with armed conflict. Demonstrating what those limits are, both by word and deed, can have an important humanitarian effect in existing and, as importantly, future conflict. In this regard treating others as you would want to be treated is an essential element of human conduct, especially in warfare.

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About the Author

is Brigadier-General (Ret’d), Canadian Forces, QC. He served four years as the Judge Advocate General, and is the author of Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict.