A recent post at Lawfare—titled “The Al-Mayadeen Prison Bombing and the Problem of War-Sustaining Targets”—suggests that the U.S. military may have struck a prison in Syria in late June on a legal theory that such facilities contribute to ISIS’s economic base. The authors, Emily Chertoff and Zachary Manfredi, write that “some of the circumstantial evidence emerging” about the strike leads them to this conclusion. They further speculate that the Islamic State’s use of prison labor or generation of revenue by ransoming prisoners may have motivated and justified striking the prison.  That, indeed, would be an excessively broad, if not ludicrous, idea of what the law of armed conflict permits. That’s why Chertoff and Manfredi are most likely badly mistaken.

To be sure, there is a debate in international law whether the laws of war allow states to target “war-sustaining” objects such as ISIS’s oil revenues that directly fund ISIS’s military. Along with the British and French, U.S. forces have targeted ISIS’s military hold over petroleum on this legal basis. And the legal framework within which the U.S military operates relies on the facts that “petroleum is the principal source of support for ISIL’s armed action” and that ISIS “cannot easily substitute petroleum for other sources,” according to a speech in November 2016 by then-General Counsel to the Department of Defense, Jennifer O’Connor.  So if indeed the US military began bombing prisons because they were supplying “prison labor” or “ransoming prisoners for funds,” as the Lawfare post speculates, that would be something that would break the legal mold and even throw into disrepute the U.S. understanding of military targeting permitted by the “war-sustaining” framework.

So what has the U.S. military said about the strike in late June? In contrast to the explanation posited in Lawfare, the Coalition has said, on the record, that no building was struck because of its use as a prison.  The LA Times’ Molly Hennessy-Fiske quoted Coalition spokesman Col. Joe Scrocca stating that the one Coalition strike on the day in question appears to have been at a different location or building than the reported “prison” strike.  Col Scrocca is quoted further as asserting that the Coalition “does not target prisons” but could target a former prison facility if it were converted to another purpose:

“When a formerly protected site is no longer used for its original purpose, and is instead used for a military purpose, it loses its protected status [and] may become a legitimate military target,” he said. “If a former prison building is used as an intelligence headquarters or weapons storage facility it is no longer a protected site.”

There may be a disagreement about the facts in this case. According to the Syrian Observatory for Human Rights, a U.K.-based group with a network of contacts on the ground, the building was the former home of a leader of Al-Qaeda’s Nusra Front but had since been converted to a prison. The director of the monitoring group Airwars “said that circumstantial evidence points to the coalition” as responsible for its destruction, according to the LA Times report. The disagreements over what took place may boil down to a difference in the U.S. intelligence analysis of the facility compared to these various NGO assessments. Or perhaps the U.S. struck the building but unintentionally. Those are important questions, especially because news reports suggest a high civilian toll. But as to the legal analysis, there’s no evidence to support the supposition that the Coalition is targeting prisons as war-sustaining infrastructure of the enemy. On the contrary, Col. Joe Scrocca’s statements clearly indicate the building was not struck on account of its use as a prison.

Let me end with some final thoughts.

First, the Department of Defense would serve the public and its own interests better if it could be more transparent about the reason for such strikes. After the initial reports of civilian casualties, the Coalition told reporters that it struck “known ISIS command and control facilities and other ISIS infrastructure.” A lot can fit into the category of “other ISIS infrastructure.” So what has the Coalition actually said or ruled out? The Coalition also stated that “the removal of these facilities disrupts ISIS’s ability to facilitate and provoke terrorist attacks.” Observers like Chertoff and Manfredi (and myself included) are then forced to fixate on what might be meant by the terms “facilitate” or “provoke” and whether the former is interchangeable with or close to “sustain.” It is, also, questionable in my view to say that the U.S. military does not and could not lawfully target prisons. It would just never do so, I believe, based on the legal theory that Chertoff and Manfredi erect. But look no further than the Department of Defense’s own website for cases in which it has openly reported targeting prisons during the Bush administration and Obama administration.

Lastly, there is a lesson here of unintended and perverse consequences. Chertoff and Manfredi’s own analysis contributes to the very outcome they wish to avoid. They end their analysis by saying: “One possible consequence of the U.S. position that strikes on economic objects in this context are lawful is the precedent it sets for other actors.” But is that “the U.S. position” or the impression they create of it? Spreading a false understanding—*that the United States may consider it lawful to target ISIS prisons on the basis that “using detainees as prison labor” or “ransoming prisoners for funds” contributes to the ISIS economy—can help set a precedent for other actors who are influenced by how they think the United States interprets the laws of war.

[Editor’s note: For more on this topic at Just Security, read Marty Lederman’s “Is it Legal to Target ISIL’s Oil Facilities and Cash Stockpiles?,” which analyzes Ryan Goodman’s law review article, “Targeting ‘War-Sustaining’ Objects in Non-International Armed Conflict,” American Journal of International Law (2016)]



Image: A B-1B Lancer drops six GBU-38 munitions onto “an al Qaeda in Iraq prison and torture house” in northern Zambraniyah, Iraq, March, 10, 2008 – U.S. Air Force photo by Master Sgt. Andy Dunaway