Same Same but Different? Why War-Sustaining Objects Can Be Destroyed but Not Targeted

Abstract

Fighting wars is expensive. Parties to an armed conflict therefore face incentives to take military action against an enemy’s ability to finance warfare. Disputes about the lawfulness of targeting economic objects that contribute to an adversary’s war-sustaining capability reach back as far as the American Civil War. The debate has recently regained attention with conflicts such as the fight against ISIS, where the international coalition carried out attacks against oil fields and money depots. In contrast to the argument of military necessity that states and scholars raise in favour of a broad interpretation of the definition of military objectives, this article finds that the purpose and extraordinary structure of Article 52(2) of Additional Protocol I to the Geneva Conventions preclude the targeting of war-sustaining economic objects. The article then explores a different, less-discussed mode of action against war-sustaining objects, namely their destruction. The so-called ‘cotton claims’ of the American Civil War are often invoked as a historical example of the lawful targeting of economic objects. A close analysis, however, shows that the facts underlying the cotton claims differ categorically from modern targeting practice. At the same time, the analysis reveals destruction as a potentially lawful alternative mode of action against economic objects. The cotton claims ultimately demonstrate that the destruction of economic objects outside the context of an attack can reconcile the argument of military necessity with the protection of civilian life, which is an insight equally relevant for modern warfare.