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

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 and apparently deliberate bombing of traditionally protected civilian objects like prisons and schools in Syria and Iraq, attacks that have caused hundreds of civilian deaths. "Warsustaining capabilities" potentially include targets many commentators and states 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 and controversial 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. This Article argues that, if taken to its logical conclusion, the U.S. position on object targeting risks undermining core IHL principles of proportionality, distinction, and humanity, and may lead to more civilian deaths. 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, and second, the limited opportunities that exist to bring disputes about IHL into courts for authoritative, centralized review, leading to a phenomenon that we call "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.