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  • 标题:Civilianizing the force: is the United States crossing the Rubicon? - role of civilians under the laws of armed conflict
  • 作者:Michael E. Guillory
  • 期刊名称:Air Force Law Review
  • 印刷版ISSN:0094-8381
  • 电子版ISSN:1554-981X
  • 出版年度:2001
  • 卷号:Spring 2001
  • 出版社:U.S. Air Force. Judge Advocate General School

Civilianizing the force: is the United States crossing the Rubicon? - role of civilians under the laws of armed conflict

Michael E. Guillory

MAJOR MICHAEL E. GUILLORY *

I. INTRODUCTON

The end of the cold war has brought about dramatic changes in the United States military. As the nation has sought to beat its swords into plowshares, privatization through outsourcing and the revolution in military affairs pertaining to technology have been seen as the means of reducing forces, and in turn costs, while still maintaining military might. As a result, from 1989 to 1999 the active duty force size was reduced from 2,174,200 to 1,385,700. (2) This tradeoff has not come without consequences. The drawdown of military personnel and reliance on sophisticated equipment have made the armed forces dependent on civilian specialists, be they government employees or contractor technicians. (3) Although the United States military has always relied on civilian support in time of war, (4) as operational tempo has increased, more and more specialists are having to deploy. For example, during the Gulf War one out of thirty-six deployed personnel was a civilian. (5) By 1996, the ratio of civilians to military in Bosnia was one out of ten. (6) Presently, in Colombia as many as one out of every five Americans working on the drug suppression effort may be civilians. (7)

Not only has participation increased, but the tasks have changed as well. In times past, civilians served in support positions primarily behind the lines, safely away from the fighting. (8) Today, many civilian technicians are working alongside the troops at the frontline. (9) Of course, with the introduction of long range strike capability and the concept of the battlespace (10) such distinctions are becoming less noteworthy. (11) All deployed personnel now face greater risk of injury, death, or capture. (12)

Placing civilians in harm's way has domestic as well as international implications. This article will focus on the international legal issues--namely whether civilianizing the forces violates the law of armed conflict. (13) First, it will review the basic differentiation between combatants and noncombatants. Next, it will analyze the limitations placed upon the conduct of the individuals within the respective groups. Then, the restrictions will be applied to the two main categories of civilians: government employees and contractors, and an attempt will be made to draw a clear line as to the types of activities that can be performed. Finally, to the extent the United States is in danger of crossing this line, possible solutions and alternatives will be discussed.

II. CIVILIANS UNDER THE LAW OF ARMED CONFLICT

Before analyzing the role of civilians under the laws of armed conflict, it should be noted that the Geneva Conventions are applicable only during international conflicts or during partial or total occupation of territory by one state of another. (14) However, the United States has taken the position that it "will comply with the law of war during all armed conflicts; however, such conflicts are characterized and, unless otherwise directed by competent authorities, will comply with the principles and spirit of the law of war during all other operations." (15) In keeping with this expanded application, discussions in this article will include all military operations unless otherwise specified.

At its core, the law of armed conflict distinguishes between combatants and noncombatants. (16) Combatants are "those persons who have the right under international law to participate directly in armed conflict during hostilities." (17) Members of the armed forces of a party to a conflict are combatants. (18) This includes integrated militias, reservists, and voluntary corps. (19.) Traditionally, to be a member of an armed force, a person must comply with the following:

a) Be commanded by a person responsible for his subordinates;

b) Have a fixed distinctive emblem recognizable at a distance;

c) Carry arms openly; and

d) Conduct operations in accordance with the laws and customs of war. (20)

The requirement for distinctive emblems (most often a uniform) and carrying arms openly exists to distinguish combatants from non-combatants. Having a responsible command and conducting operations in accordance with the laws and customs of war ensure compliance with international law. This is critical because, while combatants may be targeted by opposing forces during an armed conflict, they cannot be punished for hostile acts committed pursuant to the law of armed conflict. (21) Instead, if captured, a combatant who has complied with international law is entitled to be treated as a prisoner of war. (22) Noncombatants, or unlawful combatants if directly taking part in hostile acts, are not extended this benefit.

Noncombatants are generally synonymous with civilians. (23) However, they also comprise former combatants who become hors de combat (i.e., prisoners of war, wounded, shipwrecked, and sick, medical personnel, chaplains, and civilians accompanying the armed forces.) (24) Civilians accompanying the armed forces include civilian government employees, civilian members of military aircraft crews, supply contractor personnel, contractor technical representatives, war correspondents, and members of labor units or civilian services responsible for the welfare of armed forces. (25) They are different from other civilians because their proximity to the fighting places them at greater risk of injury, death, and capture. They are also different in that they must receive authorization from the armed forces that they accompany, and have been provided with an identity card. (26) As a result, as with hors de combat and surrendering combatants, if captured they are entitled to prisoner of war treatment. (27)

Because of their unique treatment, some commentators have argued that civilians accompanying the force should be considered quasi-combatants. (28) Remarkably, a Joint Publication of the Department of Defense states that "US and foreign contractors accompanying the armed forces ... are considered civilians accompanying the force and are neither combatants or noncombatants." (29) Under international law, this assertion is clearly wrong. (30)

Civilians are not authorized to participate directly in hostile actions. (31) If they do, they are considered unlawful combatants or belligerents and may be prosecuted as criminals. (32) Further refining this general prohibition, hostile acts "should be understood to be acts which by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces," (33) while direct participation is described as "acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces." (34) "Direct participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place." (35)

Traditional civilian activities are not direct participation. "There should be a clear distinction between direct participation in hostilities and participation in the war effort. The latter is often required from the population as a whole to various degrees." (36) Accordingly, participation in activities such as arms production, military engineering, and military transport, although ultimately harmful to an enemy, are not hostile acts. (37) Likewise, according to an International Committee of the Red Cross (ICRC) Commentary to the 1977 Protocols to the Geneva Conventions, direct participation does not include acts such as "gathering and transmission of military information, transportation of arms and munitions, provision of supplies, etc." (38)

The United States military is not so relaxed in its definition of direct participation in hostile acts. Not only does it take the position that tasks such as serving as lookouts or guards is direct participation, (39) but the Navy and Air Force seem to disagree with the ICRC Commentary as they have asserted that being an intelligence agent may constitute direct participation. (40) The Air Force also took the position that direct participation included "being a member of a weapon crew, or ... a crewman on a military aircraft in combat." (41) At least one commentator apparently supports such expansive viewpoints by arguing that specific combatant-like activity includes "the gathering of intelligence," as well as logistical support for combatant forces, or acts of violence. (42) This commentator is not alone in his belief that providing logistical support for combatant forces constitutes taking direct part in hostilities. A. P. V. Rogers, a noted legal expert, asserts that a strong argument could be made that a civilian driving an ammunition truck in a combat zone could be included in this category. (43)

Little historical guidance exists to help define what constitutes direct participation in hostilities. During the Second World War, the United States put uniforms on its civilian scientists, issued them cards identifying them as expert consultant noncombatants who, if captured, were to be treated as POWs, and sent them to the front lines for operational research. (44) The British did the same, and one poor soul was even training to parachute behind Japanese lines when the war ended. (45) It is fortunate that these scientists were not captured as they may have been serving in combatant roles while on the missions.

Less fortunate were civilian contractors hired by the Naval Civil Engineering Corps to build military installations in the South Pacific. (47) In 1941, when the Japanese invaded, the unarmed civilian contractor employees surrendered along with the military defenders. (48) The Japanese accorded the contractor employees prisoner of war status, (49) but treated them harshly. This harsh treatment of civilians was a motivating factor in the creation of the "Fighting Seabees" Construction Battalions. (50) In the same theater, acknowledging that morale and welfare support does not rise to a combat activity, American forces granted prisoner of war status to prostitutes accompanying the Japanese Army in Burma. (51)

The lack of consistent, historical guidance has left this area fertile for varied interpretations. The Australian Defense Force at first appears to offer a more narrow view of direct participation than the United States' by referring to it as "activities directly involved in the delivery of violence and protecting personnel, infrastructure and materiel." (52) Even so, this definition is broadened by a subsequent suggestion that civilians should not be involved in frontline units responsible for the delivery of violence. (53) Exactly what "involved" means is not made clear. In a similarly murky vein, one commentator has asserted that direct participation includes the use of a "weapons-system in an indispensable function." (54) As with the Australians, he provides neither further definition nor an example of what an indispensable function would be. With so many varied opinions, it is not surprising that during discussions on drafting the Additional Protocols to the Geneva Conventions, the experts could not agre e on what constitutes combatant activity. (55)

It is apparent that formulating a definitive answer as to what amounts to direct participation is not easy. (56) Obviously, only combatants may kill, injure, or capture enemy forces or destroy enemy property. (57) Just as obvious, working on a factory floor far from the front lines is noncombatant participation. But what of the many activities taking place in between? Part of the confusion is that the duties now being filled by civilians have been traditionally performed by military members who, while not necessarily in combat billets, could be called upon to fight the enemy if needed. (58) Another part of the confusion is that the legal regime, conceived before the advent of computer electronics, did not foresee weapons systems that would require cradle-to-grave support by specialists. Still, while universal consensus on every activity may be impossible the need for clearer guidance is evident.

III. GOVERNMENT EMPLOYEES

Government employees are civilians, be they United States citizens or foreign nationals, hired directly or indirectly to work for the Department of Defense. (59) Only those employees designated as emergency-essential, or E-E, are supposed to accompany the forces during a deployment. (60) When they deploy, they function primarily in traditional logistics and engineering support roles. (61) Because of this, the bulk of government employees deploying for the Army are assigned to the Logistics Support Element (LSE). (62) The LSE consists of the traditional depot divisions of supply, maintenance, ammunition, and supporting offices along with sections to support field requirements for oil analysis, Test, Measurement and Diagnostic Equipment, and Field Science and Technology. (63) An cursory Internet search found emergency-essential designations in property management, language specialists, aircraft maintenance, fire fighting, and in an historian position. (64) Government employees may also serve as public affairs r epresentatives, safety and recreation specialists, technicians, and aircrew members of AWACS and J-STARS aircraft. (65)

Recently, the Army established Electronic Sustainment Support Centers (ESSOs) for command, control, communications, computer, and intelligence and electronic warfare maintenance. (66) During contingencies, an ESSC team comprised of government employees and contractors deploys with the LSE to provide forward engineering, management, logistics and technical services. (67) As an example, one such team of six Army civilians and twenty-two contractors deployed to Bosnia/Kosovo to support fourteen weapons systems and/or programs. (68)

Government employees performing traditional support functions should be in no danger of jeopardizing their noncombatant status, but can the same be said for emergency-essential ESSC weapons system team members providing technical support at the frontline? Or the J-STARS aircrew members flying missions alongside military operators? Arguably, the weapons system technicians are "involved in the delivery of violence" or serving an "indispensable function" with the weapons systems. After all, by definition, they are essential personnel, which means that the weapons systems need them to function. As for the J-STARS crewmembers, they are crewmen on a military aircraft that is used in combat control as well as in essential elements of the intelligence-gathering missions. Even if a case can be made that these activities do not fall within the more literal interpretations of direct participation, (69) the deciding factor, at least for the opposition, may be that these employees not only work alongside military members, but they wear military uniforms (70) and can be armed. (71) In short, they appear to be combatants. (72)

Without going through every position, it is impossible to know how many civilians are in jeopardy of becoming unlawful belligerents. It appears, however, that at least some may be going too far. Before drawing a conclusion, though, government contractors should also be examined to determine if similar problems exist.

IV. CONTRACTORS

Contractor personnel are civilians, but unlike government employees, they are employed by third parties under contract to the United States. (73) Contractors generally consist of three groups: (74)

"Systems Contractors: support specific systems throughout their system's lifecycle (including spare parts and maintenance) across the range of military operations. These systems include, but are not limited to, vehicles, weapons systems, aircraft, command and control infrastructure and communications equipment." (75)

"External Support Contractors: work under contracts awarded by contracting officers serving under the command and procurement authority of supporting headquarters outside the theater". (76) "The services provided by these types of contracts include but are not limited to building roads, airfields, dredging, stevedoring, transportation services, mortuary services, billeting and food services, prison facilities, utilities, and decontamination." (77)

"Theater Support Contractors: usually from the local vendor base, provide goods, services, and minor construction to meet the immediate needs of operational commanders." (78)

External and theater support contractors, for the most part, perform the traditional civilians support roles. Therefore, while their location during deployments may place them in danger, their activities should pose no problem under the law of armed conflict. The same cannot be said for systems contractors, however. (79) "As systems become more sophisticated, the need for technicians to be close by has never been greater. This puts civilian contractors at far greater risk of direct involvement in conflict." (80) Evidence of this was seen in Operation Desert Storm where "some contractor field service representatives and contact teams ... went into Iraq and Kuwait with combat elements." (81)

Today, there are numerous "systems that cannot be operated without frontline contractor support. J-STARS and Rivet Joint aircraft, two vital collection platforms, fit this description." (82) As recently as 1999, contractor personnel manned J-STARS stations in support of UN peacekeeping efforts over Bosnia. (83)

Recognizing this dependence, the United States Army has implemented the "habitual relationship" (84) concept for its systems contractors. Under this program, one to two technical representatives train, deploy, and serve on the battlefield with the unit. (85) One example is the AH-64 Apache attack helicopter "Prime Vendor Support" program, which "suggests that contractor support will be available from the factory to the foxhole." (86) The Javelin antitank weapon system is another instance. (87) Interim contractor support (ICS) for the Javelin includes field trainers and pre-positioned maintenance trailers or "war wagons" for deployment. (88) The Patriot and TOW missile systems are two more illustrations of "habitual relationships." (89)

Although not labeled as such, similar arrangements exist in the Air Force. Since 1995, Predators, an unmanned aerial vehicle (UAV), (90) operated from ground stations by a pilot and a payload operator, have flown surveillance missions over Bosnia. (91) Until recently, both military and civilian contractors have operated these ground stations. (92)

While they do not necessarily accompany the forces, civilians involved in military information operations (IO) raise similar problems. (93) Not surprisingly, IO is contractor reliant. (94) Civilian contractors "staff the entire IO cell supporting the U.S. Southern Command, which is responsible for defense operations in 32 countries in Central America, South America and the Caribbean." (95) According to John Thomas, the former commander of the Pentagon's Global Network Operations Center, although he has no firsthand knowledge of it, he is confident that there are contractors involved in some aspects of offensive IO in DOD. (96) "You have contractors in every aspect of IO. They're working hand-in-glove with the military." (97)

Even systems contractors not working under contract with the Department of Defense are in danger of participating in hostilities. As part of the anti-drug effort in Colombia, employees of DynCorp Technical Services (DynCorp) (98) under contract with the Department of State are maintaining and pi1oting Blackhawk attack helicopters and manning search and rescue (SAR) teams. (99) While such activities are described as providing support for local police in coca eradication programs, (100) these missions are often conducted against assets under the protection of the Marxist guerillas of the Revolutionary Armed Forces of Colombia (FARC). (101) This was evident in February of 2001 when one of the DynCorp SAR aircrews became involved in a firefight with FARC guerillas while trying to rescue the Colombian police crew of a helicopter the guerillas had downed. (102) These same guerillas are waging a civil war against the government of Colombia. (103) The fact that the Colombian military is receiving training from United States military to conduct similar eradication missions (104) has led some to accuse the contractors of being mercenaries. (105)

There is no doubt that the contractors firing weapons in Colombia would be directly participating in hostilities if an international armed conflict was underway there. But what of the other systems with which contractors have "habitual relationships?" Are the contractors not intrinsically involved in the systems that they are servicing? If they were only training combatants to use the systems or performing routine maintenance, their status would not be in question. Serving alongside combatants as on call troubleshooters is a different matter, though. These systems, by their very nature, are intended to cause harm to an enemy, either through destruction or by acquiring sensitive intelligence. That the act of correcting any deficiencies that may arise, and thereby enabling the system to function as intended, can be construed as "likely to cause actual harm to the personnel and equipment of the enemy" (106) seems self-evident. In fact, to argue to the contrary would seem akin to suggesting that a shell loader is not a direct participant because someone else is firing the cannon.

As to whether deployed contractors will be indistinguishable from combatants in appearance, some confusion exists. Initially, both the Army and the Air Force indicated that contractors should not wear military uniforms. "Contractors accompanying the force are not authorized to wear military uniforms, except for specific items required for safety or security, such as: chemical defense equipment, cold weather equipment, or mission specific safety equipment." (107) On February 8, 2001, the Acting Secretary of the Air Force issued a similar admonition, (108) but the prohibitions are not ironclad: "If required by the Theater Commander, the deployment processing center will issue Organizational Clothing and Individual Equipment (OCIE) to contractor personnel. The wearing of such equipment by contractor personnel, however, is voluntary." (109) "Exceptions may be made for compelling reasons....Should commanders issue any type of standard uniform item to contractors personnel, care must be taken to require that the co ntractor personnel be distinguishable from military personnel through the use of some distinctively colored patches, armbands, or headgear." (110)

Following recent pressure from host nations, the Army now requires all contractors in the Balkans to wear civilian clothing. (111) Whether this policy will be extended beyond the region remains to be seen.

The contractors' policies on wearing uniforms are as varied as the military guidelines. At one point, DynCorp seemed to consider the wearing of uniforms by its personnel as one of the keys to success. (112) On the other hand, its employees in Colombia appear to dress less formally. (113) Another major contractor, Brown & Root, now prohibits its employees from wearing "military garb" so as to avoid confusion. (114)

The Army and the Air Force provide similar guidance with regard to the arming of contractors.

The general policy of the Army is that contractor personnel will not be armed.

However, under certain conditions...they may be allowed to do so. The decision to allow contractor personnel to carry and use weapons for personal protection rests with the CINC. Once the CINC has approved their issue and use, the contractor's company policy must permit the use of weapons by its employees; and, the employee must agree to carry a weapon. When all of these conditions have been met, contractor personnel may only be issued military specification sidearms, loaded with military specification ammunition, by the military. Additionally, contractor personnel must be specifically trained and familiarized with the weapon, and trained in the use of deadly force in order to protect themselves. Contractor personnel will not possess privately owned weapons. (115)

Air Force commanders should not issue firearms to contractor personnel operating on their installations, nor should they allow contractor personnel to carry personally owned weapons. With the express permission of the geographic CINC and in consultation with host nation authorities, Air Force commanders may deviate from this prohibition of firearms only in the most unusual of circumstances (e.g., for protection from bandits or dangerous animals if no military personnel are present to provide protection). (116)

As with the policies for wearing uniforms, the policies on carrying weapons varies amongst the contractors. Obviously, some DynCorp personnel in Colombia are heavily armed. As recently as 1996, Brown & Root was training its employees on the use of small arms. (117) However today it now prohibits them from carrying weapons. (118)

Regardless of how they are dressed and whether or not they are armed, certain contractors are in danger of being called upon to perform activities reserved for combatants. Ultimately, both for contractors and government employees, each situation is fact specific, (119) but this does not mean that a more definitive rule as to what activities are allowed cannot be formulated.

V. DRAWING THE LINE

The need for clearer guidance is obvious. (120) Both the United States Army and Air Force have recognized the danger civilians face from uncertainty in the law of armed conflict.

Civilians who take part in hostilities may be regarded as combatants and are subject to attack and/or injury incidental to an attack on military objectives. Taking part in hostilities has not been clearly defined in the law of war, but generally is not regarded as limited to civilians who engage in actual fighting. Since civilians augment the Army in areas in which technical expertise is not available or is in short supply, they, in effect, become substitutes for military personnel who would be combatants. (121)

"Civilians accompanying the armed forces and performing duties directly supporting military operations may be subject to direct, intentional attack." (122) "Their entitlement to Geneva Convention protections, including the possibility they might be properly accused of violations of the law of war or foreign domestic law, will depend upon their compliance with provided training as well as their behavior in deployed locations." (123)

Admonitions about being attacked are not idle warnings. Any doubts as to the inherent risks dissolved during Operation Desert Storm when the Scud missile decimated the barracks. (124) More current illustrations of the dangers civilians face abound. The bomb that devastated the United States military office in Riyadh, Saudi Arabia, in November 1995 killed four Department of Defense government employees. (125) In the United Nations peacekeeping operations in Angola, Africa, as of May 31, 1999, of the 1,200 DynCorp contractors supporting the operations, three contractor personnel had been killed, four had been wounded, and two were missing. (126) So far, only three DynCorp pilots have been killed in the anti-drug effort in Colombia, but the FARC has launched at least one attack against the base where the personnel are located, with the contractors as the principle target. (127)

Nor is the possibility of capture a remote notion. The WW II incident where the Japanese captured Naval Civil Engineering Corps contractors makes this clear. (128) More recent episodes emphasize this point. On March 13, 1995, William Barloon of New Hampton, Iowa, and David Daliberti of Jacksonville, Florida, both civilian employees working for McDonnell Douglas Corporation pursuant to a contract with Kuwait, strayed into Iraq by mistake. (129) They were detained, convicted of entering the country illegally by an Iraqi court, and sentenced to eight years in prison. (130) In 2000, a former contractor employee was kidnapped by guerillas in Colombia. Although he was later released unharmed, his abduction highlights the danger contractors face. (131) Just as illustrative was the detention of the United States Navy EP-3E by the Chinese on April 1, 2001. (132) Although all twenty-four crewmembers on the intelligence-gathering mission were military, (133) at the rate the United States is civilianizing its forces, the configuration may someday include civilians.

Despite these incidents, until now civilians could still draw comfort from the fact that capture by an opposing force, while possible, remained remote, making prosecution for being an unlawful belligerent unlikely. However, that may change with the pending creation of the International Criminal Court (ICC). (134) The United States, which signed the statute on December 31, 2000, is not likely to ratify the treaty anytime soon. (135) Nevertheless, the ICC is expected to come into existence, and, when it does, it will have the power to try persons accused of war crimes (136) even if they are not citizens of a ratifying country. (137) Furthermore, all signatory states will be obliged to turn over suspected war criminals. (138) Thus, the possibility exists that in the future an American civilian could be arrested while travelling overseas and then be tried for an alleged war crime committed while working for the military.

As civilians put their lives and liberty at risk, the least the United States can do is ensure that they do so lawfully. Not only is this critical for the concerned workers, but also for the commanders who must make certain that subordinates and others under their control comply with the law of armed conflict. (139) Failure of a commander to do so is itself a violation of the law of armed conflict. (140) The current practice of merely warning commanders with generalities not to jeopardize civilian status is insufficient. (141)

At first glance, it would seem that any attempt to refine what is meant by "direct participation in hostilities" should focus on those civilians working with combatants at the frontlines. After all, the purpose behind distinguishing between combatants and noncombatants is to protect civilians, (142) and those nearest the fighting are at the greatest risk. Technology and resulting military advances have highlighted fundamental flaws with this reasoning. For starters, in an age where weapons of mass destruction, intercontinental missiles, long range aircraft and space-based platforms, and electronic warfare have made military force a global, omnipresent threat, no one is safe. (143) The bombing of civilian population centers such as London, Dresden, Tokyo, Nagasaki, and Hiroshima during the Second World War (144) and the subsequent Cold War policy of mutual assured destruction have proven this.

Furthermore, the law of armed conflict specifically recognizes that civilians will be accompanying the forces, so proximity to the battlefront and the dangers associated therein already are taken into account. Commentators who argue that otherwise noncombatant conduct, such as providing military transport or logistical support, becomes combatant activities if performed at the frontlines are mistaken in two areas. First, they are using the increased danger inherent with accompanying forces to graft a geographic element onto the law where none exists. The logical extension of their arguments would make merchant seamen and civilian aircrews like the United States Civil Reserve Air Fleet (145) combatants, when under international law they are not. (146) Secondly, they fail to take into account the changing nature of technology and weapons delivery. A civilian need no longer be near the front lines to take a direct part in delivering destructive munitions or information.

Finally, as was discussed previously, no civilian can ever lawfully directly participate in hostilities. Whether they are accompanying the forces, manufacturing munitions in a factory, or farming land in Iowa, civilians are noncombatants. No matter the level of danger they face because of their location, participation in combatant activities is forbidden.

To be effective, a better description must take into account traditional civilian support roles while simultaneously encompassing the modern spectrum of civilian activities, wherever such activities occur. With this in mind, the following is proffered: civilians may support and participate in military activities as long as they are not integrated into combat operations. In this context, integration is becoming an uninterrupted, indispensable part of an activity such that the activity cannot function without that person's presence and combat operations are any military activities that are intended to disrupt enemy operations or destroy enemy forces or installations.

Under this criterion, civilians providing non-weapons systems logistics support would not be jeopardizing their noncombatant status. (147) This applies to LSE personnel, LOGCAP contractor employees, merchant seamen, CRAF aircrews, and maintenance personnel working on non-combat equipment such as transport aircraft and ships, generators, trucks, etc. For personnel performing weapons systems support, their situations will vary. Pilots, weapon loaders, and maintainers assigned to combat-positioned, combat-coded aircraft, tanks, and similar equipment, whether working at a deployed location or at a base in the United States, would be integrated into combat operations. (148) In a similar vein, weapons system technicians who have a "habitual relationship" with combat troops to the extent that they deploy with them to the "foxholes" or "downrange" would be performing combatant activities. (149) However, technicians occasionally travelling to a missile silo in the continental United States (150) or to the frontline to perform maintenance or repairs on a weapons system would lack the requisite integration, and therefore remain lawful noncombatants.

As for intelligence gatherers, by collecting information they intend to disrupt enemy operations or destroy enemy forces or installations. Therefore, they would also be involved in duties restricted to combatants. This is particularly the case for aircrew members of surveillance aircraft and ground control operators of UAVs. The civilians retrieving data from satellites or listening posts while sitting at terminals in the National Security Agency or the National Reconnaissance Office are more problematic. From a legal standpoint, there is no difference between gathering intelligence from an aircraft or forward location and gathering such information from a headquarters building located in the United States. (151) However, historically, civilians have conducted much of this work. (152) Declaring this workforce to be combatant-only would require a complete overhaul of the organizations. (153) The customary practice among nations would make such an overhaul unnecessary.

Finally, for the civilians working in information operations, their status would correlate to their duties. Personnel involved in offensive IO such as CNA, whether they located at Space Command headquarters (154) in makeshift tents at the front, would be integrated into combat operations. (155) Those involved in defensive IO could be lawful noncombatants, assuming there is no crossover between functions. To the extent that defensive IO can cause disruption or harm to enemy operations, forces, or installations, the activities would require combatant manning.

Although far from comprehensive, the above paradigm would provide both civilians and commanders with a firmer understanding as to where activities fall within the law of armed conflict. (156) One thing is already clear, under the proposed criterion the United States may be violating its own policy with regard to the use of civilians in combatant roles under international law. The next section will consider the possible solutions available to remedy the situation.

VI. POSSIBLE REMEDIES

The responses available to the United States, or any other country in jeopardy of using civilians in an inappropriate manner are as varied as the opinions of international legal scholars. The safest route would be to cease using civilians whenever the possibility exists that their activities are integrated into combat operations, but this would prove difficult from a political standpoint. The positions affected are critical for military operations; eliminating them without replacement would mean a reduction in military capability while replacing them with military personnel would be expensive. Either choice would not be appealing to Congress or the taxpayers. (157) A less drastic approach, at least theoretically, would be to discontinue their usage temporarily while attempts are made to clarify the law (or perhaps amend the law to recognize the aforementioned quasi-combatant status), but as anyone familiar with international law knows, getting countries to agree on anything is extremely difficult. Although se veral decades is considered short-term when it comes to establishing international agreements, (158) it would be prohibitively long-term in addressing the issue of civilians operating in questionable roles.

An alternative option would be to view the muddled legal interpretations as an excuse to press ahead and hope that no civilian is ever captured and put on trial. The problems with this approach are obvious. First, the United States is committed to following the law of armed conflict. (159) Such ducking of responsibility would not be in accord with such commitment. Second, any trial would be embarrassing and lower our standing in the international community. Third, contractors might also be reluctant to go along with this approach. The branding of their employees as war criminals would not be good for their public image and could affect their ability to operate internationally. (160) Finally, as American litigiousness spreads, multinational corporations could be exposed to lawsuits for damages, and a creative prosecutor might even try to hold them criminally liable for allowing their employees to commit war crimes. Instead of totally ignoring the problem, the United States could, while continuing to utilize th e civilians, try to clarify or alter the law. Of course, the glacial pace of change mentioned above would hinder this approach.

Given the difficulties with the preceding alternatives, the ultimate solution, most likely, will be a compromise: turning the questionable civilians into combatants. This alchemy can be achieved in one of two ways. The first method is to declare some of them to be combatants. This is possible because under international law, the composition of an armed force is determined by the individual state in accordance with. (161) In this instance, the applicable law is set out in the four criterion required of combatants mentioned earlier. (162) The fixed distinctive emblem and carrying arms openly aspects already have been discussed. Deployed government employees and contractors (the latter depending on their location and the circumstances) wear military uniforms and when they carry weapons, do so openly. If these civilians are commanded by a responsible person and obey the laws of war, the United States could validly declare them to be members of the armed forces. (163)

As for obeying the laws of war, all United States citizens can now be held accountable for most violations. This started with the War Crimes Act of 1996, (164) which made certain war crimes committed by or against nationals of the United States a federal offense, no matter where the offenses were committed. (165) A second law, The Military Extraterritorial Jurisdiction Act of 166 2000, (166) extended federal jurisdiction to federal felonies committed outside the United States by military members and civilians employed by or accompanying the Armed Forces. (167) Finally, the establishment of the aforementioned International Criminal Court also will ensure compliance with the law of armed conflict.

The remaining criterion, whether the civilians are subject to command, is questionable. The Department of Defense defines command as "the authority that a commander in the Armed Forces lawfully exercises over subordinates by virtue of rank or assignment. Command includes the authority and responsibility for effectively using available resources and for planning the employment of, organizing, directing, coordinating, and controlling military forces for the accomplishment of assigned missions." (168) Ultimately, military command in the United States is enforced by the Uniform Code of Military Justice (UCMJ), (169) but only during a Congressionally declared war does the UCMJ apply to civilians accompanying the forces. (170) Given the fact that the United States has only declared war five times, the last such declaration taking place during the Second World War, (171) and that the United Nations prohibition against aggression discourages countries from doing so, (172) declared wars are now the rare exception. Does this automatically mean that civilians, for all practical purposes, are not commanded? A look at the two types of civilians produces varying results.

For government employees, the Army does not differentiate between command of soldiers and civilians:

During military operations, soldiers and DACs [Department of Army Civilians] are under the direct C2 [command and control] of the military chain of command. In an area of operation (AO), the senior military commander is responsible for accomplishing the mission and ensuring the safety of all deployed military, government civilians, and contractor employees. He can direct soldier and. DAC task assignment including special recognition or, if merited, disciplinary action. (173)

The Air Force, although less explicit, seems to take a similar approach:

During a crisis situation or deployment, civilian employees are under the direct command and control of the on-site supervisory chain. Therefore, the on-site supervisory chain will perform the normal supervisory functions; for example, those related to performance evaluations, task assignments and instructions, and initiating and effecting recognition and disciplinary actions. (174)

Civilians are subject to an internal disciplinary system, but it is not in place to enforce compliance with the law of armed conflict. Accordingly, despite what the regulations say, government employees are not under the same control as military members. An example often cited to support this proposition is the August 1976 incident in Korea in which North Korean border guards attacked and killed two U.S. Army officers attempting to cut down a tree in the demilitarized zone. (175) "That incident caused an increase in the alert status to Defense Readiness Condition (DEFCON)-3, and as a result hundreds of Department of the Army (DA) civilians who had replaced military depot maintenance and supply workers requested immediate transportation out of Korea." (176) Unlike their military counterparts, they could not be ordered to remain.

While an argument theoretically can be made that government employees are subject to command, and therefore meet the four criteria, realistically, declaring them to be combatants might be available only as a penultimate resort. (177) This is because such a move likely would be met with strong resistance from the employees and their union, Congress, American allies, and the international community at large.

As for contractor personnel, the idea is a nonstarter. They do not work directly for the United States, but rather for third parties. Military regulations recognize this in addressing their status:

The command and control of contractor employees is significantly different than that of DA civilians. For contractor employees, command and control is tied to the terms and conditions of the government contract. Contractor employees are not under the direct supervision of military personnel in the chain of command. The Contracting Officer is the designated liaison for implementing contractor performance requirements. (178)

The lack of command over contract employees effectively bars them from being declared lawful combatants. (179) It also further highlights the fundamental problem, aside from the legal concerns, of relying on civilians for critical needs. During Desert Storm, questions arose as to whether they would remain in the area of operations. "There were a few instances of contractor/Department of the Army Civilians wanting to leave the theater because of the dangers of war. However, many people have doubts about how long they would have stayed if the operations had been costly in lives." (180) As a result, special arrangements were made for some civilians that complicated and hindered the mission. (181)

If the United States cannot or chooses not to declare some of its civilian workers to be combatants, it can still turn them into combatants. This can be done in one of two ways. The first is to require that government employees and contractor personnel have military obligations. Army Material Command is already suggesting that this be considered.

For very dangerous situations, the contract may require the contractor to hire personnel with a military obligation, including retirees, individual reservists and members of troop program units. The military chain of command can bring those personnel onto active duty through Temporary Tours of Active Duty or mobilize them involuntarily to ensure continuation of essential services. Of course, such action risks loss of contractor personnel to a call-up or mobilization for other duties. Activation and mobilization are last resorts. They will be used to ensure continuity of essential services, when the civilian contractor employees are evacuated. (182)

For practical reasons, namely to ensure that their employees will not breach the contract by quitting, many contractors are pursuing this course on their own and hiring only personnel with military obligations. (183) in what may be an indication of the future, the British have enacted legislation that mandates this policy. The United Kingdom Sponsored Reserve (184) requires each defense contractor "to have a specified number of its employees participate as military reservists ... ." (185) This enables the personnel to "be mobilized and deployed to contingency operations as uniformed members, rather than civilian contractors." (186) Australia and Canada are studying the concept, and the United States Air Force will conduct several tests of a similar program in the late spring or summer of 2001. (187)

The second method of transforming civilians into combatants is to bypass the contractors by creating a special reserve force. The theory is that, by relaxing military regimentation, a Technology Reserve or Information Corps (189) would attract the engineers and technicians needed for modern warfare. In the end, this might be the best way to recruit and keep highly skilled individuals who do not want to give up lucrative jobs.

VII. CONCLUSION

As the United States has reduced its military size and budget, two developments of the last half-century--the desire of the international community to protect civilians and the revolution in military affairs pertaining to technology--have collided. (190) While civilian casualties are being scrutinized more closely than ever, the demands of the modem battlespace are requiring the presence of civilians in greater numbers. The end result is that some of the very people the law of armed conflict is intended to protect are being placed increasingly in harm's way. Although this civilianizing of the United States forces raises many other issues, (191) this article has tried to answer but one: Are some civilians being placed in roles that will make them unlawful combatants?

Because international law provides no definitive definition, a more descriptive criterion has been proposed to clarify matters: Civilians should not be integrated into any military activities that are intended to disrupt enemy operations or destroy enemy forces or installations. To some, this standard will be too encompassing, thereby overly restricting civilian participation; others will not find it inclusive enough. One thing is certain though, unless a line is drawn and a precedent established, the situation will continue to blur. With so much fog already obscuring modem conflicts, we owe it to both commanders and civilians to clarify this particular area.

(1.) A river in Northern Italy that formed a line the Roman legions were not allowed to cross for fear they would be used against the civilian government in Rome.

(2.) UNDER SECRETARY OF DEFENSE FOR PERSONNEL & READINESS, U.S. DEP'T OF DEFENSE, DEFENSE MANPOWER REQUIREMENTS REPORT, FISCAL YEAR 2001 (May 2000).

(3.) OFFICE OF THE INSPECTOR GENERAL, U.S. DEP'T OF DEFENSE, REPORT NO. 91-105, CIVILIAN CONTRACTOR OVERSEAS SUPPORT DURING HOSTILITIES (Jun. 26, 1991).

(4.) For an excellent history of civilian contractors serving in the military, see Major Brian H. Brady, Notice Provisions for United States Citizen Contractor Employees Serving With the Armed Forces of the United States in the Field: Time to Reflect their Assimilated Status in Government Contracts? 147 Mil. L. Rev. 1 (1995) [hereinafter Brady].

(5.) The Government Accounting Office (GAO) estimated that during the Gulf War approximately 500,000 military personnel and 14,391 civilians deployed with U.S. forces. GOVERNMENT ACCOUNTING OFFICE, Pub. GAO/NSIAD-95-5, DOD FORCE MIX ISSUES: GREATER RELIANCE ON CIVILIANS IN SUPPORT ROLES COULD PROVIDE SIGNIFICANT BENEFITS, (Oct. 19, 1994).

(6.) Kathryn McIntire Peters, Civilians at War, Government Executive, Jul. 1996 [hereinafter Peters]. At one point in Bosnia, 6,000 uniformed Army personnel were supported by 5,900 civilians. Gordon L. Campbell, Contractors on the Battlefield: The Ethics of Paying Civilians to Enter Harm's Way and Requiring Soldiers to Depend Upon Them (Jan. 27-28, 2000) (paper prepared for presentation to the Joint Services Conference on Professional Ethics 2000), available at http://www.usafa.af.mil/jscope/JCOPE00/Campbell00.html (on file with the Air Force Law Review) [hereinafter Campbell].

(7.) Juan O. Tamayo, Privatizing War: U.S. Civilians Taking Risks in Colombia Drug Mission, WILMINGTON MORNING STAR, Feb. 26, 2001, at Al [hereinafter Tamayo]. At least six U.S. firms now work with Colombian security forces, either hired directly by the Colombian government or under contracts with the United States Departments of State and Defense. Id.

(8.) Colonel Steven J. Zamparelli, Contractors on the Battlefield--What have we Signed up For? A. F. J. OF LOGISTICS, Fall 1999, at 11 [hereinafter Zamparelli].

(9.) Major Kim M. Nelson, Contractors on the Battlefield--Force Multipliers or Force Dividers? 4-6 (Apr. 2000) (unpublished research report, Air Command & Staff College) (on file at Air University Library, AU/ACSC/130/2000-04) [hereinafter Nelson].

(10.) Battlespace is defined as the environment, factors, and conditions that must be understood to successfully apply combat power, protect the force, or complete the mission. This includes the air, land, sea, space, and the included enemy and friendly forces, facilities, weather, terrain, the electromagnetic spectrum, and information environment within the operational areas and areas of interest. U.S. DEP'T OF DEFENSE, JOINT PUB. 1-02, DICTIONARY OF MILITARY AND ASSOCIATED TERMS (12 Apr. 2001, as amended through 15 Oct. 2001), available at DODD Dictionary of Military Terms (visited Nov. 5, 2001) http://www.dtic.mil/doctrine/jel/new_pubs/ip1.01.pdf [hereinafter JOINT PUB 1-02] (on file with the Air Force Law Review).

(11.) See Major James E. Althouse, Contractors on the Battlefield: What Doctrine Says, and Doesn't Say, ARMY LOGISTICIAN, Nov.-Dec. 1998, at 14 [hereinafter Althouse].

(12.) "The single deadliest incident during the Persian Gulf War occurred when an Iraqi scud missile hit barracks housing Army Reservists who were providing water purification support far from the front." Zamparelli, supra note 8, at 17.

(13.) The law of armed conflict, or LOAC, is also called "the law of war," "humanitarian law," and "international humanitarian law." Adams Roberts, Richard Guelff, 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts Prefatory Note, in DOCUMENTS ON THE LAWS OF WAR 419 (3rd ed., Oxford University Press 2000).

(14.) Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art. 2, 6 U.S.T. 3114, 75 U.N.T.S. 31 (entered into force Oct. 21, 1950) [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, art. 2, 6 U.S.T. 3217, 75 U.N.T.S. 85 (entered into force Oct. 21, 1950) [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950) [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950) [hereinafter Geneva Convention IV].

(15.) CHAIRMAN, JOINT CHIEFS OF STAFF, U.S. DEP'T OF DEFENSE, CJCSI 5810.01A, IMPLEMENTATION OF THE DOD LAW OF WAR PROGRAM, 5a (27 Aug. 1999) [hereinafter CJCSI 5810.01A]. All other operations encompass military operations other than war, namely, "the use of military capabilities across the range of military operations short of war. These military actions can be applied to complement any combination of the other instruments of national power and occur before, during, and after war." JOINT PUB 1-02, supra note 10.

(16.) Knut Ipsen, Combatants and Non-combatants, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 65, 65-104 (Dieter Fleck ed., 1995) (hereinafter Ipsen).

(17.) THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS, 73 INTERNATIONAL LAW STUDIES, 296 (A.R. Thomas and James C. Duncan eds., supp., 1999) [hereinafter Supplement to Commander's Handbook].

(18.) Ipsen, supra note 16, at 65. This does not include medical personnel, chaplains, civil defense personnel, and those who have acquired civil defense status. Supplement to Commander's Handbook, supra note 17, at 296. The Geneva Conventions of 12 August 1949, Additional Protocols of 8 June 1977 and Relating to the Protection of Victims of International Armed Conflicts, art. 43, [section]2, opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I] provides, "Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities." Although Additional Protocol I was never ratified by the United States, this provision reflects customary international law. George H. Aldrich, The Laws of War on Land, 94 A.J.I.L. 42, 46 (2000) [hereinafter Aldrich].

(19.) Ipsen, supra note 16, at 70.

(20.) 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18 1907, art. 1, regulations, 36 Stat. 2277, 205 Consol. T.S. 277 [hereinafter Hague IV]; Geneva Convention I, supra note 14, art. 13(2); Geneva Convention II, supra note 14, art. 13(2); Geneva Convention III, supra note 14, art. 4A(2). Additional Protocol I words the definition differently:

The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

Aldrich, supra note 18, at art. 43, [section]1. This change results from the attempt to relax the rules about wearing a distinctive uniform and carrying arms openly, which will be discussed infra.

(21.) Ipsen, supra note 16, at 68. "Pursuant to the law of armed conflict" means complying with the restrictions on means and methods of warfare. Breaches of these restrictions are war crimes. War Crimes Act, 18 U.S.C. [section] 2441(c) (1996) [hereinafter War Crimes Act]. A combatant who has committed such crimes can be prosecuted by his or her own country and/or capturing forces. Ipsen, supra note 16, at 81.

(22.) See Geneva Convention III, supra note 14, articles 5, 13, 99; R.C. HINGORANI, PRISONERS OF WAR 2 (2ed. 1982).

(23.) Supplement to Commander's Handbook, supra note 17, at 297.

(24.) Id. at 297. Article 4A(4) of Geneva Convention III describes persons who accompany the armed forces without actually being members thereof as "civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces." Geneva Convention III, supra note 14, art 4A(4).

(25.) Supplement to Commander's Handbook, supra note 17, at 482. Although now obsolete, U.S. DEP'T OF THE AIR FORCE, PAM. 110-31, JUDGE ADVOCATE GENERAL ACTIVITIES, INTERNATIONAL LAW THE CONDUCT OF ARMED CONFLICT AND AIR OPERATIONS, concurs with this listing at paragraph 3-4b (18 Nov. 1976) [hereinafter AFP 110-31].

(26.) Most notably the Geneva Conventions Card. Geneva Convention III, supra note 14, art. 4. For those accompanying U.S. forces, the identity card was to have been the DD Form 2764, United States DoD/Uniformed Services Civilian Geneva Conventions Identification Card, which was to have been phased in over a 5-year period, replacing the DD Form 489, Geneva Conventions Card for Civilians Who Accompany the Armed Forces. U.S. DEP'T OF THE AIR FORCE, PAM. 10-231, FEDERAL CIVILIAN DEPLOYMENT GUIDE, para. 3.7 (1 Apr. 1999) [hereinafter AFPAM 10-231]. The Common Access Card, which is undergoing review, is to replace both the DD Form 489 and the DD Form 2764. Memorandum, Office of the Secretary of Defense, subject: Common Access Card (16 Jan. 2001).

(27.) Hague IV, supra note 20, art 13; Geneva Convention III, supra note 14, art 4A(4).

(28.) J.M. Spaight, Non-Combatants and Air Attack, 9 AIR L. REV. 372, 375 (1938); Hays Parks, Air War and the Law of War, 32 A.F.L. REV. 1, 116-135 (1990). Addressing the issue from the standpoint of legitimate targeting, both commentators would extend quasi-combatant status to civilian workers directly supporting the war effort, i.e., munitions workers, critical scientists, etc., no matter where they are located. Under the principle of discrimination, a customary aspect of the law of armed conflict, civilians cannot be the subject of a direct attack, but could be wounded or killed in an attack if they were co-located with a lawful military target. Spaight foresaw the problem prior to the Second World War with armament workers, whom he correctly asserted would be exposed to attack at their factories, and argued that to protect ordinary civilians the former should be designated quasi-combatants. Spaight, supra. Parks' analysis came as a result of Additional Protocol I, supra note 18, which limits the principle of discrimination by preventing attacks against civilians unless they are taking a direct part in hostilities (Article 51) and makes such attacks a grave breach (Article 85). Parks, supra. The precise meaning of "direct part in hostilities", which is the same terminology used in describing what combatants may do, will be discussed infra.

(29.) JOINT CHIEFS OF STAFF, JOINT PUB. 4-0, DOCTRINE FOR LOGISTIC SUPPORT OF JOINT OPERATIONS, Ch. V, 12a (6 Apr. 2000) [hereinafter JOINT PUB 4-0].

(30.) Under international law, civilians accompanying the armed forces are regarded as noncombatants "[O]nly members of the armed forces are combatants. This should therefore dispense with the concept of 'quasi-combatants' . . . ." International Committee of the Red Cross Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 515 (Y. Sandoz, C. Swinarski, B. Zimmerman, eds, Geneva, 1957) [hereinafter Additional Protocols Commentary].

(31.) Supplement to Commander's Handbook, supra note 17, at 297; Article 51(3) of the Additional Protocols, supra note 18.

(32.) Ipsen, supra note 16, at 68; AFP 110-31, supra note 25, at n. 23. The United States Supreme Court addressed this issue in Ex Parte Quirin, 317 U.S. 1 (1942):

By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations, and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but, in addition, they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

Id. at 30-31. A capturing party may treat unlawful combatants as marauders or bandits, LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 105 (1993). Unlawful combatants can also be charged with war crimes. The United States Military Tribunal at Nuremberg in The Hostages Trial of 8 July 1947-19 Feb. 1948, held that:

[T]he rule is established that a civilian who aids, abets or participates in the fighting is liable to punishment as a war criminal under the law of wars. Fighting is legitimate only for the combatant personnel of a country. It is only his group that is entitled to treatment as prisoners of war and incurs no liability beyond detention after capture or surrender.

Law Reports of Trials of War Criminals, United Nations Wartime Commission, Vol. XV, 111 (London, 1947-49) [hereinafter War Trial Reports]. Prior to being tried as a criminal, any captured person is entitled to a hearing before a competent tribunal to determine status. Geneva Convention III, supra note 14, art. 5; Additional Protocol I, supra note 18, art. 45. If the tribunal determines that the person unlawfully took part in hostilities, that person might then be tried for the crimes and, if convicted, could be executed. Additional Protocols Commentary, supra note 30, at 551.

(33.) Additional Protocols Commentary, supra note 30, at 618.

(34.) Id. at 619. The prohibition against direct participation in hostilities applies to all civilians, regardless of location. Legally, there is no difference between a civilian accompanying the force directly causing harm to the enemy and a civilian doing so from a thousand miles away. For example, most, if not all, countries would consider a computer network attack (CNA) against their infrastructures by another government to be the equivalent of an armed attack. WALTER G. SHARP, SR., CYBERSPACE AND THE USE OF FORCE, 133 (Aegis Research Corp. 1999). If a civilian programmer working on behalf of his or her government launched the ONA, that person would be an unlawful combatant, no matter where he or she initiated the attack. The only distinction between the civilian accompanying the force and other civilians is that if captured the former is granted prisoner of war status. This status, however, would not protect the person from being prosecuted as an unlawful belligerent. See note 32, supra.

(35.) Id. At 516.

(36.) 1d. at 619.

(37.) A.P.V. ROGERS, LAW ON THE BATTLEFIELD 8 (1996).

(38.) Additional Protocols Commentary, supra note 30, at 901.

(39.) Supplement to Commander's Handbook, supra note 17, at 484; U.S. DEP'T OF THE ARMY, ARMY MATERIAL COMMAND, REG. 690-11, CIVILIAN PERSONNEL MOBILIZATION PLANNING AND MANAGEMENT 21-1 (10 Feb. 1997). At least this was the Air Force's position in 1980. U.S. DEP'T OF THE AIR FORCE, PAM. 110-34, JUDGE ADVOCATE GENERAL: COMMANDER'S HANDBOOK ON THE LAW OF ARMED CONFLICT, para. 2-8 (25 Jul. 1980) (now obsolete) [hereinafter AFP 110-34].

(40.) Supplement to Commander's Handbook, supra note 17, at 484. This conclusion is based on the assumption that an intelligence agent gathers and transmits military information. If so, the inclusion of intelligence agents brings into question the thousands of civilians working for the various U.S. intelligence agencies. (The U.S. Intelligence Community is defined by the Fiscal Year 1996 Intelligence Authorization Act [P.L. 104-93], which lists the following agencies and organizations that conduct intelligence and intelligence-related activities: Central Intelligence Agency [CIA], Department of Defense, Defense Intelligence Agency [DIA], National Security Agency [NSA], National Reconnaissance Office [NRO], Departments of the Army, Navy, Air Force, Department of State, Department of the Treasury, Department of Energy, Federal Bureau of Investigation, Drug Enforcement Administration, and Central Imagery Office). To the extent that these civilians "clandestinely or on false pretenses obtain or endeavor to obtain information in the zone of operations of a belligerent", they are spies. Hague IV, supra note 20, art. 29. Spying or espionage, while illegal under most state's domestic laws, is not unlawful under the law of armed conflict. Additional Protocols Commentary, supra note 30, at 540. Does this then mean that civilians who gather intelligence clandestinely are both spies and unlawful combatants, and that those who do so openly, while not spies, are nevertheless unlawful combatants?

(41.) AFP 110-34, supra note 39, at 2-8. This also includes rescuing downed airmen. "Civilians engaged in the rescue and return of enemy aircraft are therefore subject to attack. This would include, for example, members of a civilian air auxiliary, such as the U.S. Civil Air Patrol, who engage in military search and rescue activity in wartime." Id. at 2-8(b).

(42.) Parks, supra note 28, at 118.

(43.) Rogers, supra note 37, at 8.

(44.) LINCOLN R. THIESMEYER & JOHN B. BURCHARD, COMBAT SCIENTISTS 5 (1947).

(45.) BRITISH AIR MINISTRY, AIR PUB. 3368, THE ORIGINS AND DEVELOPMENT OF OPERATIONAL RESEARCH IN THE ROYAL AIR FORCE XVII 174 (London, 1963).

(46.) Parks, supra note 28, at 130.

(47.) Brady, supra note 4, at 14, citing WILLIAM B. HUIE, CAN DO! THE STORY OF THE SEABEES 66 (1945).

(48.) Brady, supra note 4, at 14.

(49.) Id.

(50.) Id. citing HUGH B. CAVE, WE BUILD, WE FIGHT! THE STORY OF THE SEABEES 2 (New York 1944).

(51.) Green, supra note 32, at 117.

(52.) DIRECTORATE OF INDUSTRY ENGAGEMENT NATIONAL SUPPORT DIVISION, AUSTRALIAN DEFENCE FORCE HEADQUARTERS, THE DEPLOYMENT OF CIVILIAN CONTRACTORS IN SUPPORT OF AUSTRALIAN DEFENCE FORCE OPERATIONS, para 7.21 (Deployment of Civilian Contractors [DOCC] Project Paper 1999) [hereinafter ADF Project Paper].

(53.) Id. at 7.35.

(54.) Ipsen, supra note 16, at 67.

(55.) Position of the International Committee of the Red Cross on Optional Protocol to the Convention on the Rights of the Child Concerning Involvement of Children in Armed Conflicts, International Review of the Red Cross, No. 322, 107-125, at [section] 30 (31 Mar. 1998). One representative declared it would be a good idea to cite specific examples after the reference to "direct participation," such as spying, recruitment, propaganda, and the transport of arms and of military personnel. Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Report on the Work of the Conference, Vol. I, ICRC, Geneva, at 143 (1972). Others rejected the idea. Id.

(56.) "Undoubtedly there is room here for some margin of judgment: to restrict this concept to combat and to active military operations would be too narrow, while extending it to the entire war effort would be too broad." Additional Protocols Commentary, supra note 30, at 516.

(57.) Supplement to Commander's Handbook, supra note 17, at 484.

(58.) Eric A. Orsini and Lieutenant Colonel Gary T. Bublitz, Contractors on the Battlefield: Risks on the Road Ahead? ARMY LOGISTICIAN, Jan.-Feb. 1999, at 130 [hereinafter Orsini]. "Most military personnel are classified as combatants and can be relied upon to assist and augment the fighting force, as well as to provide self-protection and defend equipment and terrain. This was demonstrated time and time again in World War II, the Korean War, and the Vietnam War. History shows us how, in World War II, clerks and technicians replaced infantry who were killed and combat service support personnel were reclassified to combat arms to make up for casualties." Id. at 130-132.

(59.) Dep't of Defense Instruction 1400.31, DoD Civilian Work Force Contingency and Emergency Planning and Execution, C.1 (28 Apr. 1995).

(60.) Dep't of Defense Directive 1404.10, Emergency-Essential (E-E) DoD U.S. Citizen Civilian Employees, C.1 (10 Apr. 1992). Emergency-Essential (E-E) Civilian Employees fill positions outside the United States or "that would be transferred overseas during a crisis situation or which requires the incumbent to deploy or to perform temporary duty assignments overseas during a crisis in support of a military operation." Id. The position must meet three Congressionally established criteria:

(1) It is the duty of the employee to provide immediate and continuing support for combat operations or to support maintenance and repair of combat essential systems of the armed forces;

(2) It is necessary for the employee to perform that duty in a combat zone after the evacuation of nonessential personnel, including any dependents of members of the armed forces, from the zone in connection with a war, a national emergency declared by Congress or the President, or the commencement of combat operations of the armed forces in the zone;

(3) It is impracticable to convert the employee's position to a position authorized to be filled by a member of the armed forces because of a necessity for that duty to be performed without interruption.

Emergency Essential Employees: Designation, 10 U.S.C. [section] 1580 (1999). Volunteers are solicited to fill these positions because E-E personnel are not evacuated along with other civilians during non-combatant evacuation operations. Non-volunteers may be used in the event of unforeseen contingencies. However, it is Air Force policy only to deploy employees who have agreed to fill E-E positions. AFPAM 10-231, supra note 26, at 1.2.1. "All civilian employees deploying to combat operations/crisis situations are considered E-E, regardless of volunteer status or the signing of the E-E position agreement.... The employee will be in an E-E status for the duration of the assignment." Id. at 1.3.3; U.S. DEP'T OF THE ARMY, PAM. 690-47, DA CIVILIAN EMPLOYEE DEPLOYMENT GUIDE, 1-3 (1 Nov. 1995) [hereinafter DA PAM 690-47].

(61.) Army Link News, More civilians will deploy along with soldiers, (Nov. 1996) available at http://www.dtic.mil/armylink/news/Nov1996/a19961107civdeps.html (on file with the Air Force Law Review) (visited Feb. 22, 2001).

(62.) U.S. Army Materiel Command, Civilian Deployment Guide, Logistics Support Element Chapter (Sept. 1999) [hereinafter AMC Civilian Guide]. "The LSE is a multi-faceted organization which supports military operations. It is largely a civilian organization which deploys at the request of the supported operational commander to perform missions within the area of operations. Its mission is to enhance unit/weapon system readiness by bringing U.S.-based technical capabilities and resources to deployed units. It has a military command structure similar to other units, but consists of a flexible combination of military, DA civilians and contractor personnel that can be tailored to suit the needs of a particular contingency." U.S. DEP'T OF THE ARMY, PAM. 715-16, CONTRACTOR DEPLOYMENT GUIDE, 2-1b (27 Feb. 1998) [hereinafter DA PAM 715-16]. During Operation Desert Storm in the Gulf, the LSE comprised 665 Military personnel, 1164 DoD Civilians and 1168 Contractors. The LSE Commander's team performed aviation maintenanc e, supported high technology weapon systems and upgraded the M1 tank to the more powerful and protected MA1 configuration. ADF Project Paper, supra note 52, at 69-70.

(63.) AMC Civilian Guide, supra note 62, at Logistics Support Element Chapter.

(64.) Data obtained on April 11, 2001 via Google search engine.

(65.) Use and Status of Civilians, Vol. I, Part 3, Tab 15, Operation Law Deployment Deskbook, International and Operations Law Division, Office of The Judge Advocate General, Headquarters United States Air Force (HQ USAF/JAI) (Proposed Draft 1998).

(66.) Kathleen A. Bannister, One-Stop Shopping at CECOM, ARMY LOGISTICIAN, Jan. - Feb. 1999, at 140.

(67.) John Sieni, AMC CECOM Electronic Sustainment Support Center (ESSC) Briefing, Apr. 2000, available at http://lrc1.monmouth.army.mil/internet/pie.nsf/a6300ed473bc85e5852569 2\e0053381e/ 45b3c13e20610ad1852569bc0044c351. In preparation for deployment, the ESSC is developing a deployable "Fly-Away" package [(trailer mounted maintenance vans and High Mobility Multipurpose Wheeled Vehicles (HMMWV)-mounted maintenance shelters)] stored and maintained at Tobyhanna Army Depot and/or pre-positioned forward. During deployment, ESSC cells will fully integrate into the LSE. As part of the LSE, ESSC cells will centralize management of contractors performing maintenance and repair on electronics systems and equipment at locations within the area of operations. Id.

(68.) Id.

(69.) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 provides: The increasingly perfected character of modern weapons, which have spread throughout the world at an ever-increasing rate, requires the presence of such specialists (foreign advisers and military technicians), either for the selection of military personnel, their training or the correct maintenance of the weapons. As long as these experts do not take any direct part in the hostilities, they are neither combatants nor mercenaries, but civilians who do not participate in combat. Additional Protocols Commentary, supra note 30, at 579.

(70.) U.S. DEP'T OF THE AIR FORCE, INSTR. 36-801, PERSONNEL, UNIFORMS FOR CIVILIAN EMPLOYEES, 6.7 (29 Apr. 1994) [hereinafter AFI 36-801]; DA PAM 690-47, supra note 60, at 1-13: "Organization Clothing and Individual Equipment (OCIE) will be issued to emergency-essential personnel and other civilians who may be deployed in support of military operations. If required, civilian employees will be provided protective clothing and equipment, including some Nuclear, Biological, Chemical (NBC) defensive equipment. This equipment will be issued only as necessary to perform assigned duties during hostilities, conditions of war, or other crisis situations. The protective mask and chemical protective clothing to include training sets will be issued to civilian emergency essential or deploying personnel. Kevlar Helmets, load bearing equipment, and chemical defensive equipment will be worn in a tactical environment in accordance with supported unit procedures." To distinguish the civilians from military personnel, they wea r an olive green triangular patch with "US" in the center on their left shoulder. AFI 36-801, supra at 6.7.

(71.) AMC Civilian Guide, supra note 62, at Weapons and Training. "Since civilians accompanying the armed forces are at risk in an enemy's attack of a military objective, DOD civilians may be issued sidearms for their personal self-defense. Sidearms for this purpose is [sic] limited to 9MM and standard government issued ammunition." See also AFPAM 10-231, supra note 26, at 2.3. For the most part, commanders seem reluctant to issue arms to civilians. For example, weapons were not authorized during operations in Haiti or Bosnia. Peters, supra note 6.

(72.) "Civilians deployed to the operational area may be regarded by the enemy as combatants." U.S. DEP'T OF DEFENSE, JOINT PUB. 1-0, JOINT DOCTRINE FOR PERSONNEL SUPPORT TO JOINT OPERATIONS, Appendix 0-2 (19 Nov. 1998). And, "while most civilians are considered noncombatants, their jobs in support of U.S. weapon systems may be seen as active involvement in hostilities, which may make them subject to direct or indirect attack." Althouse, supra note 11, at 14. The training that some government employees receive at the Army's Combat Maneuver Training Center in Hohenfels, Germany, before deploying only enhances their combatant image. "You're out there just like the troops-poking in the ground looking for mines, reacting to hostile situations with the platoon leader. We'd hit the deck and crawl in the mud with [the soldiers]." Peters, supra note 5 (quoting Gary Higgins, a deployed civilian employee).

(73.) This distinction can lead to significant differences in treatment depending on the terms of any applicable Status of Forces Agreements and the laws of the host nation. This paper will not delve into such areas.

(74.) JP 4-0, supra note 29, at Ch. V, 2.

(75.) U.S. DEP'T OF THE ARMY, FIELD MANUAL 100-21, CONTRACTORS ON THE BATTLEFIELD, Chapter 1, 1-8 (Mar. 2000) [hereinafter FM 100-21].

(76.) Campbell, supra note 6.

(77.) JP 4-0, supra note 29, at Ch. V, 2b. External support contractors may be U.S. or third country businesses and vendors. Examples include the Army's Logistics Civil Augmentation Program (LOGCAP), the Air Force's Civil Augmentation Program (AFCAP), the Navy's Emergency Construction Capabilities Program Contract (CONCAP), Civil Reserve Air Fleet (CRAF) contracts, and war reserve materiel (WRM) contracts. U.S. DEP'T OF THE ARMY, FIELD MANUAL 100-10-2, CONTRACTING SUPPORT ON THE BATTLEFIELD (15 Apr. 1999). Title 10, section 129a, of the U.S. Code authorizes the Secretary of Defense to use civilian contracting if it is financially beneficial and consistent with military requirements. CRAF was established by Congress to enable civilian airlines to provide airlift for the Department of Defense. 10 U.S.C. [section] 9511-9514 (1993).

(78.) Campbell, supra note 6.

(79.) Systems contracts involve design, manufacture, and support of major items of equipment and weapon systems. The majority of systems contracts on the battlefield involve maintenance and technical assistance. LGEN Paul J. Kern, Contractors on the Battlefield, Briefing presented to the AUSA Winter Symposium (16 Feb. 1999) at slide 6, available at http://www.cascom.army.mil/Rock_Drill/c_Contractors_on_the_Battlefiel d/AUSA_Symposium/SARDA_Briefing/tsld001.htm (on file with the Air Force Law Review) [hereinafter Kern briefing].

(80.) Althouse, supra note 11, at 14.

(81.) Orsini, supra note 58, at 130-132.

(82.) Nelson, supra note 9, at 29.

(83.) Operation Joint Endeavor. Id. at 4.

(84.) A habitual relationship is a long-term relationship between a business and the military. The nature of this relationship is established through the terms and conditions of a contract, and extends beyond that of the organization to include the individual contractor employee and soldier. This type relationship establishes a 'comrade-at-arms' kinship, which fosters a cooperative, harmonious work environment, and builds confidence in each other's ability to perform. The relationship between the Army and some weapon system contractors may be long-term and continuous. Accordingly, the Army may not be able to deploy these weapon systems without also deploying the supporting contractors.

FM 100-21, supra note 75, at 1-5.

(85.) Kern, supra note 79, at slides 10-11. Exactly how close to the battlefield is determined by the commander based on risk assessment and mission, enemy, terrain, troops, time available, and civilian considerations (METT-TC). Campbell, supra note 6. In anticipation of reaching the battlefield, Brown & Root, a former LOGCAP contractor, puts its employees through training that involves basic first aid and survival skills, spotting and avoiding land mines, the use of the military gear and clothing they were issued, and the use of small arms in the event that they are authorized handguns. Peters, supra note 6.

(86.) Orsini, supra note 58, at 130-132. Kern, supra note 79, at slide 8. During Desert Storm, a contractor field service representative (CFSR) deployed with every battalion of Apache helicopters. Id. at slide 7.

(87.) The Javelin can be shoulder-fired or installed on tracked, wheeled, or amphibious vehicles. Army Technology (28 Apr. 2001) available at http://www.anmy-technology.com/projects/javelin/index.htm1 (on file with the Air Force Law Review).

(88.) Kern, supra note 79, at slide 7.

(89.) Zamparelli, supra note 8, at 14. The Patriot missile is a long-range, all-altitude, all-weather air defense system to counter tactical ballistic missiles, cruise missiles, and advanced aircraft. The TOW is a wire-guided heavy anti-tank missile used in anti-armor, anti-bunker, anti-fortification, and anti-amphibious landing roles. Army Technology (28 Apr. 2001) available at http://www.army-technology.com/projects/patriot/index.html (on file with the Air Force Law Review) and http://www.army-technology.com/projects/tow/index.html (on file with the Air Force Law Review).

(90.) The Air Force currently has two reconnaissance squadrons that operate the Predator, the 11th and 15th at Indian Spring Air Force Auxiliary Field, Nevada. Although UAVs have been around since the 1960s, improved technology has now made them a critical part of Air Force program development. DAVID A. ANTHONY AND DAGNIA STERSTE-PERKINS, CONGRESSIONAL RESEARCH SERVICE, MILITARY UNMANNED AERIAL VEHICLES (UAVs) CRS-1 (Library of Congress Jan. 1996/Aug. 1998) [hereinafter Congressional Research Service]. Currently used for reconnaissance and surveillance, future roles include suppression of enemy air defenses (SEAD) and strike missions with the use of unmanned combat air vehicles (UCAVs). Federation of American Scientists, X-45 Unmanned Combat Air Vehicle (UCAV) (visited Apr. 11, 2001) available at http://www.fas.org/man/dod-101/sys/ac/ucav.htm (on file with the Air Force Law Review).

(91.) MSgt Dale Warman, Air Force Squadron takes over Predator Operations, AIR FORCE NEWS SERVICE (visited Mar. 26, 2001) available at http://www.fas.org/irp/news/1996/n19960905_960887.html (on file with the Air Force Law Review).

(92.) Congressional Research Service, supra note 90, at CRS-5. It is now Air Force policy to man the UAVs with only military personnel. Gen Michael Ryan, Chief of Staff of the Air Force, Speech at Air Force Air Command & Staff College (Apr. 2001). This switch in policy is crucial in light of the recent arming of UAVs with hellfire missiles and their use in combat against Taliban forces in Afghanistan. Armed Drones in Combat for First Time, ST. PETERSBURG TIMES, Oct. 18, 2001, at 10A.

(93.) U.S. DEP'T OF DEFENSE, JOINT PUB. 3-13, JOINT DOCTRINE FOR INFORMATION OPERATIONS (9 Oct. 1998) defines IO as "actions taken to affect adversary information and information systems, while defending one's own information and information systems." Id. at Ch 1, para.3g. IO consists of offensive and defensive. Offensive IO includes OPSEC, military deception, PSYOP, EW, physical attack/destruction, and special information operations (SIO), and could include computer network attack (CNA). Id. Defensive IO includes information assurance (IA), OPSEC, physical security, counterdeception, counterpropaganda, counterintelligence (CI), EW, and SIO. Id. Offensive IO that cause a destructive effect within the sovereign territory of another state would be an armed attack under the law of armed conflict. Sharp, supra note 34, at 133. As stated earlier, this would make the operator behind the IO a direct participant in a hostile act.

(94.) Dan Verton, Navy Opens Some IT Ops to Vendors, FEDERAL COMPUTER WEEK (Aug. 21, 2000) available at http://www.fcw.com/fcw/articles/2000/0821/pol-navy-08-21-00.asp (on file with the Air Force Law Review)

(95.) Id. "The contractor IO cell at Southcom is involved in coordinating psychological operations with ongoing military operations, including counter-drug missions and other classified operations." Id.

(96.) Id.

(97.) Id.

(98.) DynCorp also happens to be the current Army LOGCAP contractor. James Folk and Lieutenant Colonel Andy Smith, A LOGCAP Success in East Timor, ARMY LOGISTICIAN, Jul.-Aug. 2000 at 38.

(99.) Tamayo, supra note 7. There is even an Internet rumor that retired Navy Seals, ostensibly in Peru as contract personnel for a Virginia contractor manning gunboats for the Peruvian military to intercept coca base making its way through the Amazon, are actually being used to kill Marxist guerrillas of the Revolutionary Armed Forces of Colombia (FARC) who are trying to retreat onto Peruvian soil. Peter Gorman, Ex-Navy Seals on Pay-per-Kill Mission, NARCO NEWS REPORTS (Feb. 19, 2001), (visited on Apr. 24, 2001) available at http:www.narconews.com/iquitos1.html (on file with the Air Force Law Review).

(100.) Tamayo, supra note 7.

(101.) BUREAU FOR INTERNATIONAL NARCOTICS AND LAW ENFORCEMENT AFFAIRS, U.S. DEPARTMENT OF STATE, INTERNATIONAL NARCOTICS CONTROL STRATEGY REPORT 1999, (2000); Ignacio Gomez, U.S. Mercenaries in Colombia, COLOMBIA REPORT (Jul. 16, 2000), (visited on Apr. 24, 2001) available at http://colombiareport.org/colombia19.html (on file with the Air Force Law Review).

(102.) Garry M. Leech and Eric Fichtl, Are They Civilians or Mercenaries? COLOMBIA REPORT Feb. 26, 2001, (visited on Apr. 24, 2001) available at http://colombiareport.org/colombia52.html (on file with the Air Force Law Review).

(103.) Colombia's Civil War, WASHINGTON POST, available at http://www.washingtonpost.com/wp-dyn/world/issues/colombiareport/ (collection of articles).

(104.) The training is received under Plan Columbia. Associated Press, Green Berets Train Colombian Battalion, ST. PETERSBURG TIMES, May 6, 2001, at 21A. The U. S. Dep't of Defense role is outlined in the statement of Brian E. Sheridan, Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, to the United States House of Representatives, Committee on International Relations, subcommittee on Western Hemisphere, Sept. 21, 2000, (visited on Apr. 25, 2001) available at http://www.house.gov /international_relations/wh/colombia/colombia.html (on file with the Air Force Law Review).

(105.) Gromez, supra note 101. The mercenary issue aside, as long as the contractors ;are not participating in an international conflict, they are not unlawful combatants under the law of armed conflict because the concept of "combatant" does not exist in non-international conflicts. ICRC, Statement to the IJNHCR Global Consultations on International Protection (8-9 Mar. 2001). Whether they are violating the United States policy to apply the law of armed conflict to all "operations" is another question.

(106.) Additional Protocols Commentary, supra note 30, at 619.

(107.) U.S. DEP'T OF THE ARMY, REG. 715-9, CONTRACTORS ACCOMPANYING THE FORCE, 3-3e (29 Oct. 1999) [hereinafter AR 715-9].

(108.) "Air Force commanders should not issue military garments (e.g., BDUs, Gortex jackets) to contractor personnel." Memorandum, Lawrence J. Delaney, subject: Interim Policy Memorandum -- Contractors in the Theater (8 Feb. 2001) (on file with author) (see attachment, USA.F Guidance on Contractors in the Theater) [hereinafter Delaney Memo].

(109.) DA PAM 715-16, supra note 62, at 5-1a. Battle Dress Uniforms are included in the OCIE list. id. at App B, b-1a. This contrasts with FM 100-21, which provides: "Either the government or the contractor may decide that a uniform appearance is necessary for contractor employees. In this case, the contractor should provide appropriate attire which is distinctly not military, and which set them apart from the forces they are supporting." FM 100-21, supra note 75, at 3-5.

(110.) Delaney Memo, supra note 108.

(111.) Telephone Interview with Mr. Rich Adams, contractor working for Lesco, Inc. for the Director of Readiness at the U. S. Army Communications-Electronics Command (CECOM) (Apr. 23, 2001) [hereinafter Adams].

(112.) DynCorp Technical Services, Briefing on Contractors on the Battlefield, at slide 10, (visited on Apr. 11, 2001) available at http:www.cascom.army.mil/Rock_Drill/c_Contractors_on_the_Battlefield/ AUSA_Symposium/ (on file with the Air Force Law Review) [hereinafter DynCorp Briefing].

(113.) "[The DynCorp pilots] fly in Bermuda shorts, smoke wherever they want, and drink whiskey almost everyday." Gomez, supra note 101.

(114.) E-mail from Chris Heinrich, spokesman for Halliburton, to Major Lisa Turner (May 1, 2001) (on file with author) [hereinafter Heinrich E-mail].

(115.) FM 100-21, supra note 75, at 3-5.

(116.) Delaney Memo, supra note 108.

(117.) Peters, supra note 6.

(118.) Heinrich E-mail, supra note 114.

(119.) Supplement to Commander's Handbook, supra note 17, at 484.

(120.) "The point is that civilians should know what to expect if they are attacked and captured. Not enough has been done in recent years to clarify the status of contractors on the battlefield, although this probably is more an issue of international law than Army doctrine." Althouse, supra note 11, at 17.

(121.) DA PAM 690-47, supra note 60, at 1-22. The Army's awareness of the risk also can be seen in the rationale behind the wearing of uniforms and carrying arms.

Contractor personnel supporting military operations should be visibly distinct from the forces they are supporting so that they do not jeopardize their status as civilians accompanying the force.... When determining to issue weapons to a contractor the CINC must consider the impacts this may have on their status as civilians accompanying the force.

FM 100-21, supra note 75. at 3-5.

(122.) AFPAM 10-231, supra note 26, at 6.3.3. This statement could be read to indicate that the civilians may be unlawful combatants, because only combatants are subject to direct, intentional attack. See, supra note 28.

(123.) AFPAM 10-231, supra note 26, at 6.3.6.

(124.) The military now relies heavily on contractors for the support being provided by the Army Reservists who were killed and injured in the attack. Zamparelli, supra note 8, at 17.

(125.) Peters, supra note 6.

(126.) DynCorp Briefing, supra note 112, at slide 9.

(127.) Gomez, supra note 101.

(128.) See text accompanying notes 47-51.

(129.) Douglas Jehl Americans in Iraq Given 8-Year Term, N.Y. TIMES, Mar. 26, 1995, Section 1, Page 1.

(130.) After American protests the two men were finally released on Jul. 17, 1995. Jamal Halaby, Freed By Iraq, Two Americans Arrive in Jordan, ASSOCIATED PRESS, Jul. 17, 1995.

(131.) "Leftist guerrillas last year kidnapped one American helicopter mechanic, who stayed in Colombia after his DynCorp contract ended because of a love affair, but freed him after a few weeks 'because he was so crazy'...." Tamayo, supra note 7.

(132.) Sara Fritz, Bush Wins High Praise for Handling First Crisis, ST. PETERSBURG TIMES, Apr. 12, 2001, Section 1, page 1. The crew was released unharmed on April 11, 2001.

(133.) Id.

(134.) Created by the Rome Statute of 17 July 1998, the ICC will come into existence when 60 countries have ratified the treaty. As of 31 Aug. 2001, 37 countries had done so. Information available at http://www.un.org/law/icc/statute/status.htm (on file with the Air Force Law Review) [hereinafter Rome Statute].

(135.) President Clinton Authorizes Treaty to Create Permanent War Crimes Tribunal, but Measure Faces Stiff Opposition in Senate (CNN television broadcast Dec. 31, 2000).

(136.) Generally, the court only will have jurisdiction over war crimes committed as part of a plan or policy or as part of a large-scale commission of such crimes. Rome Statute, supra note 134, Article 8(1). But given the tendency of such bodies to expand their jurisdiction, the limitations could be stretched. Aldrich, supra note 18, at 48.

(137.) "The ICC will have jurisdiction over all individuals for every incident that occurs within the territory of a state party or any other country that agrees to the ICC's ad hoc jurisdiction." Captain Andrew S. Williams, The Proposed International Criminal Court: An Imminent Danger? THE REPORTER (Jun. 2000).

(138.) Articles 86 and 89 of the Rome Statute, supra note 134.

(139.) Additional Protocol I, supra note 18, Art. 87.

(140.) War Trial Reports, supra note 32, at pp. 69-71. Article 28 of the Rome Statute extends jurisdiction of the ICC to prosecute commanders who allow war crimes to take place. Rome Statute, supra note 134. Additionally, although the U.S. has not ratified Additional Protocol I, Article 58 of the protocol requires parties to remove civilians from the vicinity of military objectives and to protect them from the dangers of military operations. There is a concern among nations that have ratified the Additional Protocol that employing civilians near the frontlines violates these requirements. See ADF Project Paper, supra note 52, at 8.2.76. As to whether this will affect U.S. operations depends on the extent to which Article 58 has or will someday become customary international law.

(141.) For example: "[C]ontracted support service personnel ... may be used to perform only selected combat support and combat service support activities. They may not be used in or under-take any role that could jeopardize their status as civilians accompanying the force." AR 715-9, supra note 107, at 3-3d. Or "[C]ommanders, when determining the nature and extent of their use, will not put contractors in a position that jeopardizes this status. Contractor status is an important issue for the commander in determining the extent of their use and where within the theater of operations they should be permitted. FM 100-21, supra note 75, at 1-9.

(142.) "This was certainly the view of the XXth International Conference of the Red Cross when it adopted a resolution in 1965, which contained a solemn declaration addressed to all governments and other authorities with responsibility for action in armed conflicts. It stressed that a "distinction must be made at all times between persons taking part in the hostilities and members of the civilian population, to the effect that the latter be spared as much as possible." Additional Protocols Commentary, supra note 30, at 509.

(143.) "At the end of the nineteenth century, the overwhelming percentage of those killed or wounded in war were military personnel. Toward the end of the twentieth century, the great majority of persons killed or injured in most international armed conflicts have been civilian non-combatants." Aldrich, supra note 18, at 48.

(144.) Estimates indicate that as many as 275,000 civilians were killed as a result of these attacks. ALAN J. LEVINE, THE STRATEGIC BOMBING OF GERMANY, 1940-1945, 180 (1992); DAVID IRVING, THE DESTRUCTION OF DRESDEN 27 (1963); The Effects of Atomic Bombs on Hiroshima and Nagasaki, in THE UNITED STATES STRATEGIC BOMBING SURVEY, Vol. 7, 15 (David MacIsaac ed., 1976).

(145.) See, supra note 73.

(146.) Geneva Convention III, supra note 14, at art. 4A(a) and (b).

(147.) Although logistical support elements represent legitimate military targets, they are not combat operations. In other words, to use the language in the Additional Protocols Commentary (supra note 30), logistics activities only indirectly cause harm to the enemy.

(148.) The key here is the availability of the equipment for participation in combat operations. Fighters, attack helicopters, tanks, etc., that require transportation to a frontline base or staging area before entering the fighting are not combat-positioned. Nor is equipment withdrawn from combat use for depot maintenance or training. Accordingly, personnel assigned to such equipment need not be combatants. In contrast, long range bombers such as B-52s or B-2s, which can strike from a base in the United States, are always combat-positioned unless they are undergoing depot maintenance or have been relegated to training use only.

(149.) This is a close call. Both arguments for and against whether this constitutes direct participation can be found in the Commentary to the Additional Protocols. "Undoubtedly there is room here for some margin of judgment: to restrict this concept to combat and to active military operations would be too narrow, while extending it to the entire war effort would be too broad." Additional Protocols Commentary, supra note 30, at 516. "The increasingly perfected character of modem weapons, which have spread throughout the world at an ever increasing rate, requires the presence of such specialists (military technicians), either for the selection of military personnel, their training or the correct maintenance of the weapons. As long as these experts do not take any direct part in the hostilities, they are neither combatants nor mercenaries, but civilians who do not participate in combat." Id. at 579. The first position is more in keeping with the fundamental aspiration of protecting civilians. Otherwise, not on ly would civilians be commingled with combatants, making differentiation by the enemy impossible, but commanders also would have to ensure that in the heat of battle the civilians do not become direct participants. Take for example a technician assigned to a Patriot missile battery to ensure that the missile guidance system functions properly. If one or more of the soldiers became incapacitated during the fighting, the commander would be faced with either having the qualified technician take over or waiting on replacements and possibly jeopardizing the mission. Given the alternatives, most commanders likely would choose the first option and worry about unlawful combatant issues later.

(150.) Obviously, the missile officers in charge of firing the ICBMs are combatants.

(151.) With the Joint Distributive Intelligence Support System (JDISS), which allows the high volume transfer of digitized information such as maps, graphics, imagery, text, and full motion video over the Joint Worldwide Intelligence Communication System (JWICS), there is also not much of an operational difference either as the gatherers based on U.S. soil can now disseminate intelligence information to the war-fighter in real time. Senior Intelligence Officials DoD Background Briefing, U.S. DEP'T OF DEFENSE, subject: Intelligence Support to Operation JOINT ENDEAVOR (18 Jan. 1996) (visited on 23 Apr. 2000) available at http://www.defenselink.mil/news/Jan1996/x011996_x0118oje.html (on file with the Air Force Law Review).

(152.) The composition of the workforce at the various intelligence agencies ranges from almost 100 percent civilian at the CIA to 80 percent at NSA to 70 percent at DIA. GOVERNMENT ACCOUNTING OFFICE, INTELLIGENCE AGENCIES: SELECTED PERSONNEL PRACTICES AT CIA, NSA, AND DIAL COMPARED TO OTHER AGENCIES, GAO/NSIAD-96-6 (Mar. 11, 1996). Precisely what duties they perform is classified.

(153.) Perhaps a distinction should be made between active intelligence gathering (using resources to discover secret or protected information) and passive gathering (collecting readily available information).

(154.) Space Command has recently taken over the CNA mission. Paul Stone, Space Command Plans for Computer Network Attack Mission, AIR FORCE NEWS, 10 Jan. 2000.

(155.) Sharp, supra note 34.

(156.) Obviously, the criterion is one person's attempt to draw a clearer line. As with any compromise, some will find it too restrictive, arguing that it omits many combatant-type activities, while others will see it as too liberal, casting a wide net over functions that can be performed by civilians.

(157.) As if to refute this sentence, on April 16-27, 2001, U.S. Representative Janice Schakowsky, D-IlI, introduced a bill that would ban the federal government from hiring private companies or individuals to carry out military, law enforcement, armed rescue or related operations in Peru, Colombia and other Andean countries. Susan Taylor Martin, Private Firms Aid U.S. Covert Work, ST. PETERSBURG TIMES, Apr. 29, 2001, at 2A.

(158.) Aldrich, supra note 18 at 42.

(159.) U.S. DEP'T OF DEFENSE, DIRECTIVE 5100.77, DOD LAW OF WAR PROGRAM, 1.1 (9 Dec. 1998); CJCSI 5810.01A, supra note 15, provides "The Armed Forces of the United States will comply with the law of war...." Id. at 5a.

(160.) Based on the publicity DynCorp has been receiving from its operations in Colombia, this argument may not be all that persuasive.

(161.) Ipsen, supra note 16, at 66.

(162.) a) Be commanded by a person responsible for his subordinates; b) Have a fixed distinctive emblem recognizable at a distance; c) Carry arms openly; and d) Conduct operations in accordance with the laws and customs of war. Hague IV, supra note 20, at art. 1. Additional Protocol I amended the requirements by relaxing the distinctive emblem requirement (only necessary during military engagements and the deployment time preceding an attack) and by stating that members of armed forces "shall be subject to an internal disciplinary system." Article 43(1), Additional Protocol I, supra note 18. Again, to the extent the latter reflects customary international law, it is applicable to the United States.

(163.) Declaring in advance of a conflict puts other countries on notice; an action that is recommended in the Commentary to the Additional Protocols. Additional Protocols Commentary, supra note 30, at 516.

(164.) War Crimes Act, supra note 21.

(165.) Under the statute, war crimes are (1) grave breaches of the Geneva conventions of 12 August 1949 or any protocols to which the United States is a party, (2) conduct prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, (3) conduct which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 Aug. 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict, and (4) conduct of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians. Id. [section] 2441(c) (1-4).

(166.) 18 U.S.C. [section] 326 1-3267 (2000). For a discussion of the Military Extraterritorial Act, see Andrew D. Fallon & Theresa A. Keene, Closing the Legal Loophole? Practical Implications of the Military Extraterritorial Jurisdiction Act of 2000, 51 A.F.L. REV 273 (2001) (this volume); Glenn R. Schmitt, The Military Extraterritorial Act: The Continuing Problem of Criminal Jurisdiction over Civilians Accompanying the Armed Forces Abroad--Problem Solved?, ARMY LAW, Dec. 2000, at 1; Mark J. Yost & Douglas S. Anderson, The Military Extraterritorial Act: Closing the Gap, 95 A.J.I.L. 446 (Apr. 2001).

(167.) ID. [section] 3261.

(168.) JOINT PUB 1-02, supra note 10.

(169.) 10 U.S.C. [section] 801-946 (1983).

(170.) Reid V. Covert, 354 U.S. 1 (1956); 10 U.S.C. [section] 802 (a)(10) (Aug. 10, 1956). A proposed amendment to Title 10 (through the FY 1996 DoD Authorization Act) would have created court-martial jurisdiction over civilians "accompanying the forces in the field in time of armed conflict," defining "armed conflict" broadly so as not to require declaration of war or national emergency by the President or Congress, but was not made into law.

(171.) BRIEN HALLETT, THE LOST ART OF DECLARING WAR 169 (1998) ("in 1812 for the war of 1812, in 1846 for the Mexican-American War, in 1892 for the Spanish-American War, in 1917 for World War I against Imperial Germany and the Imperial and Royal Austro-Hungarian Government, and in 1941 for World War II against Japan, Nazi Germany, Italy, Bulgaria, Hungary, and Romania").

(172.) Louis Rene Beres, The Oslo Agreements in International Law, Natural Law, and World Politics, 14 ARIZ. J. INT'L COMP. L. 715, n 68 (Fall 1997).

(173.) FM 100-21, supra note 75, at 1-3.

(174.) AFPAM 10-231, supra note 26, at 1.5.1.

(175.) History of the U.S. Air Force's Fighter Wing, (visited on Apr. 24, 2001) available at http://www.zianet.com/jpage/airforce/history/wings/8th.html.

(176.) Orsini, supra note 58, at 130-132.

(177.) The ultimate or last resort would be a declared war, which then would obviate the need for such a declaration.

(178.) DA PAM 715-16, supra note 62, at 1-1. The most a military commander can do is: indirectly influence the discipline of contractor employees through revocation or suspension of clearances, restriction from installations or facilities, or revocation of exchange privileges. The process of removal of contractor employees from the theater is dependent upon the policies issued by the theater commander and the extent to which those policies are incorporated in the terms of the contract, and are exercised through the contracting officer. FM 100-21, supra note 75, at 1-10.

(179.) Cf., Brady, supra note 4, in which the author argues that contractors have been assimilated into the U.S. military.

(180.) GEORGE B. DIBBLE, CHARLES L. HORNE III, AND WILLIAM E. LINDSAY, ARMY CONTRACTORS AND CIVILIAN MAINTENANCE, SUPPLY AND TRANSPORTATION SUPPORT DURING OPERATIONS DESERT SHIELD AND DESERT STORM, Vol. 1: Study Report AR113-01RD1 (Logistics Management Institute, Jun. 1993).

(181.) "[E]fforts were taken to help alleviate the fear of attack against civilian personnel and encourage them to remain in-theater. The C21 maintenance contractors were separated from military forces and housed in downtown Riyadh. While this decreased their vulnerability to attack, it also separated them from the aircraft they maintained and the commander they served, further affecting the overall unity of command." Nelson, supra note 9, at 14.

(182.) HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, PAM. 715-18, AMC CONTRACTS AND CONTRACTORS SUPPORTING MILITARY OPERATIONS, 7-4 (26 Jun. 2000).

(183.) Adams, supra note 111.

(184.) The Sponsored Reserve Act was included in the UK Reserve Forces Act, 1996, but was not enacted until 1997. ADF Project Paper, supra note 52, at 8.4.50.

(185.) Bo Joyner, The Future Total Force, CITIZEN AIRMAN, Apr. 2001, at 10-12.

(186.) Id. at 12.

(187.) Id. at 12.

(188.) Stephen Bryen, New Era of Warfare Demands Technology Reserve Force, DEFENSE NEWS, 17-23 Mar. 1997, at 27.

(189.) BGen Bruce M. Lawlor, ARNG, Information Corps, A. F. J. INT'L. 26 (Jan. 1998).

(190.) Ironically, the technological revolution has also fueled the increased emphasis on protecting civilians because of the development of smarter, more discriminating weaponry.

(191.) Lt Col Lourdes A. Castillo, USAF, Waging War with Civilians: Asking the Unanswered Questions, AEROSPACE POWER JOURNAL, 26-31 (Fall 2000).

* Major Guillory (B.A,. Louisiana State University, J.D., Tulane University) is a reservist assigned to the International and Operations Law Division at the Air Force Judge Advocate General School, Maxwell AFB AL. He is a member of the Florida State Bar.

COPYRIGHT 2001 U.S. Air Force, Academy Department of Law
COPYRIGHT 2004 Gale Group

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