(Charlie Trumbull and Michael Schmitt – Just Security) Buried in the recent Office of Legal Counsel (OLC) memorandum justifying the Trump administration’s use of force to capture President Nicolas Maduro of Venezuela is a deeply troubling assertion. The Justice Department’s OLC writes that the law of armed conflict (LOAC) “permits the death of … civilians directly participating in hostilities such as by assisting in war-sustaining activities” (page 12). It made the point in the context of U.S. strikes on boats allegedly transporting drugs, which is apparently being treated as a war-sustaining activity during the purported non-international armed conflict (NIAC) that the administration wrongly claims is underway with various criminal gangs and drug cartels. Yet, the memorandum does not provide any citations for this assertion. Neither the Department of Defense (DoD) nor, to our knowledge, any other part of the U.S. government has ever publicly adopted such a sweeping position, and it finds no support in the broader international law community. It is a long-standing (though controversial) U.S. position that certain “war-sustaining” objects qualify as “military objectives” and are accordingly lawfully targetable during armed conflict (1980 Air Force Pamphlet 110-34, ¶ 2-3; 1987 Naval Warfare Pamphlet 9, § 8.1.1). And there is universal agreement that civilians who “directly participate in hostilities” are subject to attack “for such time” as they do so (ICRC Customary IHL, rule 6, practice). But as we explain, civilians who assist in war-sustaining activities cannot be considered to be directly participating in hostilities. The OLC’s misstatement of the law would badly skew the balance between military necessity and humanitarian considerations that undergirds LOAC by drastically reducing the protection afforded to civilians, including Americans supporting war-sustaining activities. To understand why OLC’s statement is so problematic, we unpack two issues: (1) the meaning and significance of the term “war-sustaining” and (2) the scope of direct participation in hostilities under LOAC. The very use of the term “war-sustaining” renders OLC’s statement controversial; applying the concept to civilian direct participation is simply wrong. If the administration did not intend to formally adopt this erroneous view, it is not too late to publicly correct the record.
OLC Maduro Memo: Assisting War vs Participating in Hostilities
