Oona A. Hathaway (Yale University - Law School), Azmat Khan (Columbia University), & Mara Redlich Revkin (Duke University School of Law) have posted The Dangerous Rise of "Dual-Use" Objects in War on SSRN. Here is the abstract:
Each day, the news brings new stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that they are being used by militants. Sometimes called “dual-use” objects because they have both military and civilian uses—these objects are said to have lost their protection from attack under international humanitarian law because of their military use. Though the term has become common, international law does not recognize “dual-use” objects as a formal legal category. Indeed, a critical innovation of the post-war Geneva Conventions that lie at the core of modern international humanitarian law was to establish a bright line between “military objectives,” which were deemed legitimate targets of military force, and civilians and “civilian objects,” which were to be strictly protected. That bright line distinction meant new and important protections for civilians in war.
We show in this Article that the gradual rise of the idea of “dual-use” objects over the last several decades has blurred this line, placing civilians at great risk. The United States has played a critical role in the rise of “dual use” targeting. Indeed, most accounts of the origins of the concept of “dual use” targeting start with the 1991 Gulf War, in which the U.S.-led coalition’s response to Iraq’s occupation of Kuwait included airstrikes on Iraq’s electrical infrastructure and bridges. The Article reviews the history of dual-use targeting and presents an original dataset and primary source evidence from the sites of U.S. airstrikes in Iraq and Syria to illustrate the wide range of “dual-use” objects that the U.S. military has targeted, whether deliberately or not. It draws on ground reporting and research to show the true costs of this dual use targeting for civilians living in areas of conflict. The United States is far from alone in targeting dual-use objects, but the Article focuses its analysis on the United States because it plays an outsized role in shaping the law of armed conflict as a result of its capacity to project force around the world, its efforts to provide legal justifications for its use of force, and its role in setting the standards by which other states are measured. Finally, this Article offers recommendations for reforms to better protect civilians during war and prevent further erosion of the foundational principles of modern international humanitarian law.
