WAR-SUSTAINING ECONOMIC OBJECTS

For dual-use objects, the question is how to approach objects whose use has two separate applications: the civilian and military spheres. For “war-sustaining economic objects,” the question is different: whether the object’s singular use makes the “effective contribution to military action” required to qualify as military objective. A war-sustaining economic object is one whose use enables a party to maintain or strengthen its economy and, in doing so, to sustain its war effort. These potential targets include, for example, ships carrying exports, such as British ships carrying Confederate cotton during the American Civil War or Iraqi tankers exporting oil during the Iran-Iraq War.⁵⁸ In both these cases, the ships served as a lifeline for the states’ economies. Without that channel for exports, the states would have had no access to the goods or services needed to fight their wars. The ships carrying the goods, then, could be viewed as essential to carrying on the fight—and their destruction as an effective way for the adversary to squelch the state’s military effort. In transnational asymmetric conflicts, it is easy to imagine potential targets that fit this description, by whose virtue non-state actors obtain the economic resources to keep up their war operations. Such targets could include, for example, cash shipments to the non-state actor or diamonds or other mineral resources the non-state actor plans to sell for war funding.

At the same time, such targets may have a nexus with the civilian economy.

Cotton and oil profits flow not only to the military but also to civilians not taking part in the conflict. The use of the objects is also not part of the war effort itself. Because the targets are inviting for the adversary and because the line-drawing question is fraught, IHL instruments have needed to face the question: Is a “war-sustaining” use sufficient to constitute an “effective contribution”?

For most commentators, the answer is no. The reasoning is demonstrated by the discussion at the San Remo Round Table forum in the late 1980s and early 1990s. Initially, some of the San Remo experts proposed that the provision on military objectives include objects providing an “effective

58 Robertson, supra note 1, at 51. This contention is behind the traditional law of maritime prize, which allowed belligerents to capture enemy merchant vessels on the high seas. See S^an r^eMo M^anualon inTernaTional l^aw a^PPlicaBleTo a^rMed c^onflicTSaT S^ea ¶¶ 138-39 (1994).

contribution to the enemy’s war-fighting or war-sustaining capability.”⁵⁹ The wording, though, was rejected since many argued that the language would allow entire cities to be attacked.⁶⁰ The reasoning, apparently, was that “war-sustaining” could be read broadly and that the language itself would not supply any limiting principle. Could not any productive industry be “war-sustaining”? Could not any valuable export cargo qualify? In the end, the conference settled on the more restrictive language earlier adopted in API: “effective contribution” not to “the enemy’s fighting or war-sustaining capability” but, rather, to “military action.”

These concerns seem to have animated later discussions among experts, whose majority view was that the term “military action” excludes war-sustaining contributions only.⁶¹ As Yoram Dinstein put it (referring to the example of targeting shipments of Confederate cotton during the American Civil War,

The connection between military action and exports, required to finance the war effort, is “too remote.” Had raw cotton been acknowledged as a valid military objective, almost every civilian activity might be construed by the enemy as indirectly sustaining the war effort (especially when hostilities are protracted).⁶²

Among the group of experts convened to prepare the Tallinn Manual, the majority likewise viewed “war sustaining” objects as not constituting military objectives.⁶³ The British military manual also rejects the “war sustaining”

criterion, a decision that Schmitt seems to regard as consequential and as persuasive evidence of an emerging consensus among both militaries and NGOs⁶⁴ and also as the direction for the law that best serves the interests of regular forces in asymmetric conflict.⁶⁵

A minority position allows the targeting of war-sustaining economic objects, reading the “military action” phrase in API to include within it war-sustaining economic activity. While this position appears to be a minority one, it nonetheless seems to have a reasonable base of support, at least for 59 See Robertson, supra note 1, at 50.

60 Id.

61 See hPcr aMw M^anual, supra note 10, R. 24, cmt. 2.

62 Dinstein, supra note 28, at 146.

63 See T^allinn M^anual, supra note 5, R. 38 cmt. 16.

64 See Schmitt, Effects-Based Operations, supra note 21, at 288.

65 See id. at 292-93.

some limited category of economic objects.⁶⁶ This is the view supported by the United States. As noted in the military manual of the US navy, economic objects of the enemy that indirectly but effectively support and sustain the enemy’s war-fighting capability may also be attacked.”⁶⁷ At least one commentator has argued that the manual’s commentary limits the term’s reach and that, in practice, the scope is little wider than that in API.⁶⁸

At the very least, there seems to be a consensus that the US position and the majority view do differ in one important respect. The US would support targeting “attacks on exports that may be the sole or principal source of financial resources for a belligerent’s continuation of its war effort.”⁶⁹ This would have included—explicitly, according to the US military manual—

targeting of Confederate cotton being exported to Britain,⁷⁰ and it might have included the tankers loaded with Iraqi oil. One element of the analysis here may be that the law of naval warfare is less fully developed than that of IHL generally. For that reason, targeting of war-sustaining economic objects at sea might be more permissive than that for similar objects on land. That said, some note that API Article 52(2) is considered to constitute customary law applicable to determining military objectives not only on land and in the air but also at sea.⁷¹ This is consistent with the general pattern of convergence of the rules of land and naval warfare.⁷²

Even the US interpretation would come with one crucial caveat. Any such targeting must still abide by rules of proportionality, as outlined in Chapter 4. In practice, this might eliminate much of the potential targeting. It might

66 See UCIHL Experts Report, supra note 49, at 3-7 (describing a variety of positions on the “war-sustaining” question).

67 u.S. d^{eParTMenTofThe} n^avy, T^he c^oMMander’^S h^andBooKonThe l^awof n^aval o^PeraTionS § 8.2.5 (Jul. 2007 ed.).

68 Robertson, supra note 1, at 50-51.

69 Id. at 51.

70 Id.

71 See Natalito Ronzitti, Naval Warfare, M^ax P^lancK encycloPediaof P^uBlic inTernaTional l^aw para. 8 (2012); J. Ashley Roach, The Law of Naval Warfare at the Turn of Two Centuries, 94 a^M. J. i^nT’^l l. 64, 69 (2000).

72 See Louise Doswald-Beck, The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 89 a^M. J. i^nT’^l l. 192, 194 (1995) (not ing t hat “some of the basic concepts in [Part IV of API] have affected thinking in naval operations, in particular the principle of distinction and the concept of limiting attacks to military objectives”). Doswald-Beck served as a rapporteur at the conference that produced the San Remo Manual as well as its editor and coordinator of drafting.

not, though, eliminate all targeting. If proceeds of exports go directly to the military effort (and not to the civilian population), then the targeting seems more likely to pass the proportionality test. The same might be true if the export is illegitimate. From a different war theater, targeting a shipment of poppies whose profits go to the Taliban command would likely be different from targeting a transport of sheep whose products will produce profit for a broader Afghan public.

Overall, the strong weight of opinion (by both states and commentators) is that war-sustaining economic objects do not constitute military objectives and so may not be targeted.

POLITICAL, ECONOMIC, AND PSYCHOLOGICAL OBJECTS