Editor’s Note: This is the first in a two-part post discussing how the law of war applies to airstrikes against oil tanker trucks. You can read Part Two here.
On November 16, US war planes destroyed 116 fuel trucks in in oil-rich eastern Syria, the source of a solid portion of ISIL’s oil revenue. In a statement, the US Defense Department indicated that in addition to the tankers, airstrikes also hit a number of tactical units, fighting positions, storage depots, vehicles, and staging areas in Syria and Iraq as part ofOperation Inherent Resolve. In subsequent operations, the number of tankers destroyedreached 238. Not to be outdone, the Russian press reported last week that Russia has destroyed more than 1,000 (or maybe it was 500) tankers, although the Pentagon is “skeptical” of this assertion.
The decision to target the trucks, which were parked at an oil collection point, was apparently made before the Paris attacks. Although a Pentagon spokesman indicated that this was the coalition’s first strike against tankers, the DOD (with the Gulf coalition) has struck a number of oil-producing facilities and other energy assets in the past, and a handful of tankers were destroyed in October 2014. (Ken Watkin covered these strikes onJust Security at the time; his excellent paper on the topic was later published here.) The most recent strikes are apparently part of a new stepped-up campaign to further degrade ISIL’s energy infrastructure that has been dubbed “Tidal Wave II” after a World War II effort to destroy oil refineries in Ploieşti, Romania that supplied up to a third of Nazi Germany’s fuel needs. The new operation is also reminiscent of the so-called Tanker Wars— largely naval — between Iran and Iraq. (Incidentally, according to the US Air Force historian, production resumed quickly in Ploieşti; it remains to be seen if ISIL’s oil production capability will also recover quickly or if there will be long-term incapacitation of ISIL’s war economy as is hoped.)
The Pentagon warned truck drivers in advance of the planned strike with leaflets dropped over the site as well as show-of-force overflights. The leaflet messaging was unambiguous:
Get out of your trucks now, and run away from them. Warning. Airstrikes are coming, oil trucks will be destroyed. Get away from your oil trucks immediately. Do not risk your life.
The coalition did not attack drivers fleeing from their trucks, and it appears that no drivers were killed.
The Treasury Department has estimated that ISIL now earns between $1 million and $1.5 million a day from illegal oil sales generated by a sprawling production system that rivalsmany state-owned oil companies in terms of organization and scope. A recent Rand Corporation study ranks oils as third on the list of ISIL’s sources of revenue, behindextortion/taxation extracted from people within its vast territory and funds stolen from Iraqi banks; other sources of income include ransoms, selling antiquities, human trafficking, and wealthy donors.
At its peak, ISIL has controlled up to 80% of Syria’s oil production — so much so that the Syrian government and rebel groups must, at times, purchase fuel from them, which may explain why these tankers have not been targeted in the past by the regime. It has been reported that lines of trucks can extend 5 miles, with tanker drivers waiting up to a month for their turn to fill up. Drivers, mostly independent traders, generally transport the crude to formal and informal refineries. Some petrol is consumed internally; the rest is exportedacross the border into Turkey or Iraq.
The delay in adding ISIL’s pipeline-on-wheels to the coalition strike list and the use leaflets to give ISIL a “45 minute warning” before attacking have left many in the right-wing blogosphere incensed. Is this rancor justified?
While these airstrikes raise a number of international law issues, I’m going to consider two sets of questions: First, what legal framework applies to the strikes and what sorts of objects can be targeted, and second, questions related to the duty to warn civilians and the actual or counterfactual actions of the tanker drivers.
Below, I cover the first set of issues, concluding that the definition of military objective can be expanded to cover the tankers themselves, but not without accepting the legality of targeting war-sustaining elements of an enemy force.
The Framework
These inquiries will generally be guided by customary international humanitarian law (IHL) given that none of the relevant IHL treaties is fully in force in the territory at issue. While many of the rules addressed to the means and methods of warfare are found inAdditional Protocol I (API) to the 1949 Geneva Conventions, this treaty applies only to international armed conflicts (IACs), as idiosyncratically defined by that treaty. Most IACs involve conflicts between states. In 2012, the International Committee of the Red Cross (ICRC) publically classified the conflict in Syria as a non-international armed conflict (NIAC) — i.e., one between states and non-state actors or among non-state actors. Notwithstanding the participation of various foreign powers in the conflict, it likely remains so given that — for the moment anyway — the foreign forces are engaged militarily against non-state actors and not against the Assad regime. In any case, API does not formally govern the United States’ actions because the United States has not ratified it (though Syria and a number of the United States’ European and Gulf coalition partnershave).
Even the most relevant treaty addressing the conduct of hostilities in NIACs (Additional Protocol II) has little binding guidance to offer here. While this treaty is well subscribed to, neither the United States nor Syria has ratified it.
As a result, we must look to customary international law (CIL) to evaluate the coalition’s approach to targeting the tanker trucks. For this, I will refer to the ICRC’s tremendous study of the topic, which tracks the two essential elements of CIL: state practice and opinio juris (a subjective belief that state conduct conforms to a legal obligation).
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:12/02/2015