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Warnings to Civilians Directly Participating in Hostilities: Legal Imperative or Ethics-based Policy?
Recent attacks by American and allied forces on the terrorist organization ISIL (“ISIS” or “Daesh”)*, have focused on disrupting the group’s main source of revenue: oil production and transportation. According to the New York Times, refineries generate about $40 million each month exporting oil used to finance Daesh terror activities.
Times writers Michael R. Gordon and Eric Schmitt note the Obama administration “has balked at attacking the Islamic State’s fleet of tanker trucks – its main distribution network – fearing civilian casualties” while simultaneously noting periodic American “airstrikes against oil refineries and other production facilities in eastern Syria” – presumably also staffed by civilians. This week, some non-mainstream media sites have been claiming American forces have given warnings to oil tanker drivers by dropping leaflets 45 minutes prior to executing lethal, kinetic strikes, though the AP now makes the same claim.*
Warning drivers before attacking Islamic State oil tankers may turn out to be good policy. First, it broadcasts American compassion for the oil truck drivers, many of whom may have families and may have been pressed into involuntary service by Daesh. This sends a clear ethical signal in the clash of values between bloodthirsty terrorists and American warriors who fight with honor. It also could be a method of sowing fear or dread into Daesh; by sending oil truck drivers, with the leaflets in hand, back to the Daesh commanders, it shows ubiquitous, omniscient American forces are in clear control of tactical actions from the skies. The practice does not increase the risk to American pilots, because Daesh has virtually zero anti-air capability, nor does it increase the risk of mission failure so long as the strikes are announced to occur where Daesh cannot scatter and hide the trucks – for example, on a long, open desert road. Frankly, it might be a good military idea not to drop bombs on the oil trucks with the drivers inside, for several military and strategic reasons. What it is *not* is legally required. In other words, it is not the lawyers that are balking – unless they dramatically and incorrectly interpret the law of armed conflict – on the issue of direct participation in hostilities by civilians.
Frankly, it might be a good tactical – or strategic – idea not to drop bombs on the oil trucks with the drivers inside. However wise it may be, it is not legally required. In other words, it is not the lawyers that are holding back further U.S. strikes, unless they dramatically and incorrectly interpret the law of armed conflict on the issue of direct participation in hostilities by civilians.
Oil and fuel trucks contributing to Daesh military capacity are legitimate targets under the law of armed conflict regardless of their location, be they on the road to a port to offload their crude cargo for revenue-producing export or loaded with refined fuel and bound for the “front lines” to contribute to Daesh military operations directly. They are property, and the law of armed conflict is far more protective of people than property. So long as U.S. and allied forces can show “military necessity” to destroy the tankers, they are legitimate military targets. So this discussion is really about targeting the truck drivers who could be killed or injured when the tankers are destroyed, not the tankers themselves.
Though generally civilians may not be made the object of armed attack, the law of armed conflict clearly and unequivocally permits the intentional targeting of these oil truck drivers without warning, even if the drivers were forced into service*** in support of Daesh. Generally, the law of armed conflict permits an armed force (lawful combatants) to engage another armed force (opposing lawful combatants) engaged in combat operations, where the armed forces operate under responsible command, wear uniforms, and carry arms openly. The lawful combatants need not be in the middle of conducting active operations to be targetable; they can be in a bivouac site or assembly area, in a convoy leaving the battlefield, or in a far rear area effectively off the battlefield.
In addition to while actively engaged in combat operations, they also can be attacked while eating, sleeping, playing billiards, writing letters home, or shining their shoes.
In short, the lawfulness of targeting is based on an individual’s status as a lawful combatant, not his or her activities. But to an extent, at the moment they are engaged. On the reverse is true for civilians. Article 51(3) of the 1977 Additional Protocol to the Geneva Conventions notes civilians directly participating in hostilities may also be targeted while participating in an activity that contributes to the combat efforts of lawful combatants – performing auxiliary functions such as manning a radar station, distributing pay to soldiers, or driving fuel trucks. Targeting civilians directly participating in hostilities requires scrutiny of their conduct, not merely their status.
Finally, there is little distinction between targeting fuel trucks driving in direct support of combat operations – for example, from a logistics depot to front lines of a conflict to refuel combat vehicles – and driving in support of economic activities supporting the Daesh war effort. In both cases, the civilian’s participation in hostilities is direct. The International Committee of the Red Cross (ICRC) has laid out a three part test for determining when civilians are directly participating in hostilities:
(1) The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict, or alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm);
(2) There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and
(3) The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus). In other words, the civilian’s activity must generate military harm against an opposing force or protected civilians; the civilian’s act must directly cause the harm; and the civilian’s act must be specifically designed to cause the harm. The ICRC posits this test represents the definitive state of the law in this area, though individual states may distinguish the test on the margins.
Analyzing an attack on a fuel convoy moving from a logistics support area to refuel Daesh trucks or armoured vehicles conducting military maneuvers is easy: Daesh military vehicles, with guns to kill opposing forces and terrorize civilians, cannot drive without fuel, and the fuel transportation adversely affects the opposing party to Daesh. There is clearly a causal link between refuelling Daesh combat vehicles and their delivery of military effects on opposing forces or civilians. Moreover, the act of refuelling the Daesh vehicles is presumptively purposeful –there is no other reason to do it than to enable their combat operations.
The analysis is slightly more nuanced when examining strikes against oil tankers the movement of which is designed to generate economic benefit for Daesh rather than to directly enable combat operations. While the nexus and causation are slightly more attenuated, they are sufficiently analogous to the vehicle refuelling illustration to warrant a determination that the civilian drivers are directly supporting Daesh combat activity and can be targeted, particularly given the temporal and geographical proximity of the financial generation activity to Daesh’s military units and operations.
Just as the Daesh vehicles do not drive without fuel, the fuel does not reach them without the closely-associated economic activity that generates the revenue to enable Daesh combat operations (threshold of harm). The generation of this income directly enables Daesh combat activities (direct causation), and the generation of the income specifically is designed to enable Daesh operations (belligerent nexus). Targeting the oil tankers transporting oil to generate revenue is virtually the same as targeting oil tankers moving fuel to Daesh consumers conducting warlike acts on the battlefield. This is generally consistent with the U.S. view, expressed succinctly in Paragraph 5.9 of the DoD Law of War Manual, though the U.S. might also take the view the oil truck drivers who voluntarily support Daesh could be targeted based on their membership in a Non-State Armed Group (see para 5.8.3 of the DoD Law of War Manual).
Finally, the direct participation in hostilities analysis should not be confused with the principle of distinction. American and allied forces have the burden of distinguishing between ordinary economic activity – to the extent any still exists in Syria – and economic activity (transportation of oil) designed to benefit Daesh. American and allied forces must still honor that principle and may not simply target oil tankers based on proximity. They must have reliable intelligence the oil tankers are in fact Daesh-affiliated and they are generating funds to enable Daesh combat operations against opposing forces and civilians. If such a distinction is made, the Daesh tankers may be targeted as military targets within the boundaries of the law of armed conflict.
In summary, it is unclear why U.S. forces warned the truck drivers prior to the air strikes, and the reasons for doing so are likely classified. Such warnings may make good policy to demonstrate compassion and respect for life, avoid a civilian casualty incident, or signal to Daesh that U.S. and allied overwhelming military capacity by leaving witnesses alive to tell the tale of the shock and awe. But assuming the U.S. and allied military units can establish the oil trucks are benefitting Daesh military capacity, warning the truck drivers is not legally required. The United States should not make targeting decisions against Daesh support operations assuming the law requires more than it does.
* The group terrorizing Syria, Northern Iraq, and the Levant is alternately known as ISIL (“Islamic State in Iraq and the Levant”), ISIS (“Islamic State in Iraq and Syria”) and Daesh (an acronym of the English version of the group’s Arabic name, al-Dawla al-Islamiya fi al-Iraq wa al-Sham – the Islamic State in Iraq and the Levant). The word Daesh carries objectionable connotations in Arabic, and is dispreferred by the group. Daesh it is.
** One reason to warn the drivers might be as a hedge against killing truck drivers engaged in normal, non-Daesh-benefitted commerce. If allied forces destroy trucks not supporting Daesh by mistake, but simply destroy the tankers, the U.S. can buy its way out of that problem by simply paying a claim for wrongful destruction of civilian property. The warnings are likely, in part, a hedge against generating yet another U.S./allied civilian casualty incident, which presupposes the intelligence about the identity of the oil truck convoys might be incorrect.