Deadly Ambiguity: IHL's Prohibition on Targeting Civilian Objects and the Risks of Decentered Interpretation

Abstract

The United States claims the legal authority to target the “war-sustaining capabilities” of its enemies in armed conflict — a fact that has become particularly salient with the recent bombing of Islamic State cash stockpiles and oil fields in Iraq. This category potentially includes targets many commentators and states traditionally view as protected civilian objects, such as oil fields, economic infrastructure, and agricultural facilities, all critical to preserving life and livelihood in conflict zones. Recent publications by U.S. military and diplomatic agencies have called renewed attention to the debate about the legitimacy of targeting war-sustaining activities by articulating a broad interpretation of Article 52 of Additional Protocol I of the Geneva Conventions, which codifies the prohibition in international humanitarian law (IHL) on targeting civilian objects. If taken to its logical conclusion, the U.S. position risks undermining core IHL principles of proportionality, distinction, and humanity. The U.S. position highlights the difficulty of applying certain rules of IHL — like the laws on targeting — in a select set of ambiguous limit cases for which the governing law presents insufficient guidance. We identify two sets of forces that place particular strain on IHL, and that we believe contributed to the U.S. interpretation of the military-object targeting rule. First, the asymmetric character of conflicts with non-state actors creates an increased likelihood of IHL violations by both sides to a conflict, and puts pressure on state actors to broadly interpret the rules of IHL as an alternative to violating the law. A perception that non-state actors do not themselves obey IHL adds to this pressure. Second, limited opportunities to bring disputes about IHL into courts for authoritative, centralized review leads to a phenomenon we call “decentered interpretation,” where every state develops its own interpretation of IHL in some degree of isolation. The heavy weight given to the state practice of certain militarily powerful states exacerbates the distortions created by decentered interpretation. Without measures to address these two sets of forces, states risk undermining the content of the IHL rules they purport to interpret. We conclude by proposing improvements to current collective processes for reaching international consensus on the fine-grained content of ambiguous IHL rules.