{"id":3110,"date":"2012-08-16T09:03:40","date_gmt":"2012-08-16T13:03:40","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=3110"},"modified":"2012-12-06T15:36:46","modified_gmt":"2012-12-06T20:36:46","slug":"blurring-the-civilian-combatant-line-legal-implications-of-deploying-u-s-civilian-mariners-in-the-libyan-theater","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2012\/08\/blurring-the-civilian-combatant-line-legal-implications-of-deploying-u-s-civilian-mariners-in-the-libyan-theater\/","title":{"rendered":"Blurring the Civilian-Combatant Line: Legal Implications of Deploying U.S. Civilian Mariners in the Libyan Theater"},"content":{"rendered":"

By LT Elan R. Ghazal, JAGC, USN and Manik V. Suri<\/span>1<\/a><\/sup><\/p>\n

\u00a0<\/span><\/em>Growing civilian integration in the U.S. armed forces<\/span><\/em><\/p>\n

With a lackluster economy and burgeoning deficit, the U.S. military has faced mounting pressure in recent years to scale back the size and scope of its operations. In the wake of Washington\u2019s debt-ceiling standoff this time last year, much was said in <\/span>support<\/span><\/a> of (as well as <\/span>against<\/span><\/a>) proposed defense cuts that roiled the military establishment. And with the \u201c<\/span>fiscal cliff<\/span><\/a>\u201d fast approaching, additional spending cuts could automatically hit the defense budget in early 2013<\/span>. As Pentagon planners attempt to reshape the U.S. armed forces in light of these constraints, one solution has been increased reliance on civilian manpower to augment force projection.<\/span><\/p>\n

Commentators have highlighted various aspects of this growing civilian presence for years, including the rise of <\/span>private international security companies<\/span><\/a>, a trend that some describe as \u201c<\/span>outsourcing war<\/span><\/a>.\u201d At an institutional level, this expanding civilian role is reflected, for example, in the State Department\u2019s <\/span>unprecedented involvement<\/span><\/a> in administering defense measures in post-conflict Iraq. Today, civilian contractors are even involved in sensitive military activities such as <\/span>drone operations<\/span><\/a>. A common theme underlies these developments: the line separating civilians from combatants is becoming increasingly blurred. This article examines one instance of this \u201ccivilianizing\u201d trend \u2013 the deployment of civilian mariners (CIVMARs) aboard U.S. warships during contingency operations against Libya in 2011 \u2013 and highlights serious questions it raises at the intersection of law and war.<\/span><\/p>\n

\u00a0<\/span>Deploying CIVMARs in Libya<\/span><\/em><\/p>\n

On March 19, 2011, the USS Mt. Whitney<\/a><\/em> <\/span>deployed<\/span><\/a> to the Mediterranean Sea to assume a command role in Operation Odyssey Dawn, the initial U.S.-led effort to enforce UN Security Council Resolution 1973 against Libya. A Blue Ridge-class vessel and the U.S. Navy\u2019s Sixth Fleet flagship, the <\/span>Mt. Whitney<\/em> is one of the most advanced ships ever commissioned, enabling a Joint Task Force Commander to direct air, ground, and maritime units in an integrated operation. This capability would prove essential to the multilateral coalition\u2019s primary objective: enforcing a no-fly zone during the Libyan civil war to prevent forces loyal to Muammar Gaddafi from engaging in air attacks against innocent civilians. Given this humanitarian goal, there is a certain poetic justice in the fact that throughout the Libya operation, the Mt. Whitney<\/em> was operated by nearly as many civilians as active-duty sailors: the U.S. command vessel is manned by a complement of 143 CIVMARs and 157 enlisted personnel.<\/span><\/p>\n

CIVMARs are members of the <\/span>Military Sealift Command<\/span><\/a>, which \u201coperates approximately 110 non-combatant, civilian-crewed ships that provide strategic sealift and ocean transportation for all military forces overseas.\u201d Licensed by the U.S. Coast Guard, they are responsible for replenishing naval ships at sea with food, fuel, and ammunition, and also fill on-board billets in support functions within the Deck, Engine, Supply, and Communications departments.<\/span><\/p>\n

Historically, the U.S. Navy only assigned \u201cmixed\u201d civilian and servicemen crews to naval auxiliaries, which lack offensive capabilities. Beginning in 2003, however, fleet commanders <\/span>announced plans<\/span><\/a> to transition a growing number of warship support functions (traditionally manned by active-duty sailors) to CIVMARs. T<\/span>his major policy shift marked the first time that U.S. warships had integrated civilian crews since privateers were outlawed \u2013 over a century and a half ago. The USS Mt. Whitney<\/em> became one of the first<\/a> warships to integrate CIVMARs, following its relocation to Gaeta, Italy, and designation as the Sixth Fleet\u2019s flagship. <\/span><\/p>\n

Greater civilian integration within the fleet is intended to enhance operational capabilities, limit overhead, and increase productivity pursuant to <\/span>official guidelines<\/span><\/a> that <\/span>require measures to \u201censure that the American people receive maximum value for their tax dollars.\u201d Put simply, civilians are less expensive<\/a> than active-duty personnel and, in some cases, more efficient. Civilian crews also free up active-duty sailors to support other combat-related activities. At the height of Operations Iraqi Freedom and Enduring Freedom, for instance, CIVMARs alleviated manning pressure on the Navy when nearly 10,000 sailors were assigned to Joint Task Forces supporting critical land warfare operations in Iraq and Afghanistan. Furthermore, with the U.S. fleet\u2019s growing sophistication, modern warships require specialized technicians and operators to perform an increasing number of functions. Access to a civilian labor pool provides the Navy with a valuable resource to effectively staff these roles. Finally, civilian integration within the fleet offers military planners a bureaucratic advantage: by leaving fewer service members on the books, it allows force size to appear reduced.<\/span><\/p>\n

\u00a0<\/span>Legal questions raised<\/span><\/em><\/p>\n

Such benefits notwithstanding, integration of CIVMARs with naval combat forces raises at least two serious questions involving international law. First, does a significant civilian presence aboard warships change these vessels\u2019 status under international law? Put more concretely, could enemy forces legally deny U.S. combat ships carrying a nearly fifty percent civilian crew the sovereign prerogatives owed to warships? Second, could civilians aboard warships engaged in combat be considered \u201cunlawful combatants\u201d under the law of war \u2013 and if captured, be tried as spies, murderers, or pirates? Both questions seem to hinge on the specific roles CIVMARs perform while aboard U.S. warships.<\/span><\/p>\n

 <\/p>\n

(1) Does a significant CIVMAR<\/em> crew affect U.S. warship status?<\/em><\/span><\/p>\n

 <\/p>\n

\u201cWarship\u201d status grants a vessel certain belligerent rights under customary international law, including important sovereign prerogatives such as the right to engage in combat, visit and search, and participate in blockade and convoy escort operations. But warships are also legitimate targets in armed conflict, subject to attack without warning, and as with all combatants, they are obligated to adhere to the Law of Armed Conflict (LOAC). \u201cWarship\u201d designation is therefore crucial both to prevent civilians from being inadvertently targeted during conflict, and to guarantee sufficient command authority to ensure compliance with LOAC during belligerent operations. To preserve this distinction, <\/span>Article 8 of the 1958 UN Convention on the High Seas<\/span><\/a> (and later <\/span>Article 29 of the UN Convention on the Law of the Sea<\/span><\/a>) defines a warship as a vessel: (1) belonging to the armed forces of a State, (2) bearing the external marks distinguishing such ships of its nationality, (3) under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and (4) manned by a crew which is under regular armed forces discipline<\/em>.<\/span><\/p>\n

Under this definition, a sizable contingent of CIVMARs could potentially affect the legal status of a U.S. warship, particularly if these civilians are not subject to \u201cregular armed forces discipline.\u201d Until 2006, civilian personnel \u201cserving with\u201d or \u201caccompanying\u201d the force were subject to the Uniform Code of Military Justice (UCMJ) only during a \u201cdeclared war,\u201d which has occurred a mere five times since the Republic\u2019s founding. However, on January 1, 2007, Article 2(a)(10) of the UCMJ was amended<\/a> to broaden its application \u201cin time of declared war or a contingency operation<\/em>,\u201d encompassing the vast majority of U.S. conflicts in which war is not declared \u2013 including the 2011 Libya operation. This amendment arguably satisfied the international legal requirement that a warship\u2019s crew be subject to \u201cregular armed forces discipline.\u201d On this view, the USS Mt. Whitney<\/em>\u2019s large contingent of CIVMARs were under UCMJ jurisdiction \u2013 and therefore would not have affected its \u201cwarship\u201d status.<\/span><\/p>\n

But this legal position remains unsettled. Over the past five years, several constitutional challenges have been brought against the amendment to UCMJ Article 2(a)(10)<\/span>, including its alleged violation of civilian defendants\u2019 Fifth Amendment \u201cgrand jury\u201d right and Sixth Amendment \u201cimpartial jury\u201d right (the UCMJ provides instead for trial by active duty military judges and juries). For years, a series of procedural and jurisdictional limitations<\/a> prevented any court with civilian judges from reviewing the amendment\u2019s constitutionality or the scope of civilian UCMJ jurisdiction. However, last November the nation\u2019s highest military appellate court, the U.S. Court of Appeals for the Armed Forces (CAAF), <\/span>granted review<\/a> of the lower Army Court of Criminal Appeals\u2019 decision in United States v. Ali<\/a><\/em>, which upheld the constitutionality of a court-martial trial pursuant to <\/span>Article 2(a)(10) of a civilian contractor charged with arson (for allegedly destroying a Predator drone while working for the U.S. government in Iraq).<\/span><\/span><\/p>\n

Just weeks ago, the <\/span>CAAF issued its decision upholding the constitutionality of UCMJ Article 2(a)(10)<\/span><\/a>,<\/span> which grants military jurisdiction over civilians \u201cserving with or accompanying an armed force in the field during a contingency operation.\u201d The court distinguished a line of Supreme Court precedent dating back over a half-century that <\/span>some scholars argue<\/a> supports a \u201cbright constitutional line\u201d between military jurisdiction over servicemen and civilians, at least absent a formal declaration of war. Crucially, the CAAF did so by highlighting the Ali<\/em> defendant\u2019s lack of U.S. citizenship (unlike the defendants whose constitutional protections were upheld in Supreme Court precedent). The CAAF then proceeded to restrict its holding to the specific facts of the case, leaving open the possibility that civilian UCMJ jurisdiction over a U.S. citizen accompanying the force during a contingency operation \u2013 such as a CIVMAR \u2013 could still be held unconstitutional. Were a court to do so in the future, <\/span>such a holding might jeopardize the legal argument that CIVMARs (who are all U.S. citizens) are subject to \u201cregular armed forces discipline.\u201d This, in turn, would potentially implicate the \u201cwarship\u201d status of combat vessels like the USS Mt. Whitney<\/em> that are increasingly operated with sizable civilian crews.<\/span><\/p>\n

 <\/p>\n

(2) Are civilian mariners lawful combatants?<\/span><\/em><\/p>\n

 <\/p>\n

The U.S. Navy\u2019s recent effort to expand civilian integration within the fleet also raises another serious legal issue concerning CIVMARs\u2019 status if captured. A central principle of LOAC involves \u201cdistinction,\u201d which requires that combatants and noncombatants be distinguished in order to limit war\u2019s toll upon the latter group. Related to this principle is the notion of \u201cdirect participation\u201d reflected in Common Article 3 of the Geneva Conventions<\/a>, under which only members of the armed forces, militias, voluntary corps, and those who take up arms in levee en masse <\/em>are permitted to actively engage in hostilities. These individuals enjoy \u201ccombatant privilege\u201d under Article 43.2 of the Protocol Additional (Protocol I<\/a>), and cannot be punished for directing acts of violence against the enemy, provided that they have complied with humanitarian law. However, civilians who directly participate in hostilities do not enjoy this immunity.<\/span><\/p>\n

At the same time, international law specifically recognizes that civilians may \u201caccompany the force\u201d in supporting roles and, if captured, grants them Prisoner of War status under Article 4 of Geneva Convention III<\/a>. Hence, the U.S. Navy requires that CIVMARs carry a Geneva Convention Card<\/a> reflecting their status as \u201cpersons who accompany the armed forces without actually being members thereof.\u201d Nonetheless, it is uncertain whether an enemy would recognize CIVMARs\u2019 protected status if they were captured while serving aboard a warship during combat: the question hinges on whether their activities fall outside the scope of \u201cdirect participation in hostilities.\u201d<\/span><\/p>\n

International law remains <\/span>unsettled<\/span><\/a> over just how broadly this phrase should be construed. Though an expansive interpretation ostensibly provides greater protection for civilians (making them less likely to be targeted), it also limits a sovereign\u2019s ability to promote its national security by integrating civilians within its armed forces. Recent debate has centered on the causal relationship between the activity engaged in and the harm done. Clearly, the closer a civilian is within the causal chain to the application of force, the more likely that he could plausibly be deemed to have participated in hostilities and thereby become an \u201cunlawful combatant.\u201d At one end of the spectrum, operating weapons systems or participating in a boarding party would almost certainly qualify as the \u201cdirect participation.\u201d By the same logic, a compelling argument can be made that collateral duties on a warship, such as housekeeping or barbering, are well outside its scope.<\/span><\/p>\n

In theory, an enemy could adopt the extreme view that a warship represents an integrated weapons system, therefore implicating civilian and active-duty sailors alike as \u201cdirect participants.\u201d Under this approach, all civilians aboard warships might be considered \u201cunlawful combatants\u201d if they contribute to its operations in any capacity. In practice, however, such a categorical denial of protected status is likely to be untenable under international law, which affirmatively allows civilians to \u201caccompany the force\u201d in certain support functions.<\/span><\/p>\n

Nonetheless, <\/span>CIVMARs aboard the USS Mt. Whitney<\/em><\/span><\/a> \u2013 and increasingly across the fleet \u2013 perform support functions related to engineering, deck, and logistics that could plausibly meet the threshold for \u201cdirect participation in hostilities.\u201d For instance, civilian technicians who run the warship\u2019s propulsion plant or navigators who manage its position and movement arguably contribute directly to its combat operations. Had they been captured by the Libyan regime during Operation Odyssey Dawn, these individuals could potentially have been designated \u201cunlawful combatants\u201d and faced criminal prosecution under Libyan domestic law \u2013 including being given the death penalty.<\/span><\/p>\n

Understandably, in light of this risk, the U.S. government will seek to construct \u201cdirect participation in hostilities\u201d narrowly, to avoid jeopardizing the protected legal status of thousands of civilians integrated within the forces and creating serious legal risks for existing operations. Yet <\/span>some commentators have noted<\/span><\/a> that this view is in tension with a broader interpretation of the phrase adopted by the Bush and Obama Administrations in the counterterrorism context, for example <\/span>in <\/span>determining<\/span><\/a> Al Qaeda and Taliban detainees to be <\/span>\u201cunlawful combatants\u201d and therefore not entitled to Geneva Convention protections (notwithstanding that detainees have received <\/span>increasingly robust<\/span><\/a> procedural and substantive protections in recent years). While a principled legal basis may, in fact, exist for the United States\u2019 differing interpretation of \u201cdirect participation in hostilities\u201d in the two contexts (civilian integration versus counterterrorism), one could imagine a hostile government eliding this distinction and declaring civilians integrated within the U.S. armed forces to be \u201cunlawful combatants.\u201d Given this possibility, the legal status that captured <\/span>CIVMARs would be accorded in enemy hands remains at least somewhat uncertain.<\/span><\/p>\n

 <\/p>\n

Preserving a functional divide between civilians and sailors<\/em><\/span><\/p>\n

 <\/p>\n

While the U.S. Navy has long supported small numbers of civilians aboard warships \u2013 including technicians to operate and manage advanced equipment, civilian academics to teach classes on-board during deployment, and journalists to report on the ship\u2019s activities \u2013 the unprecedented recent expansion of this civilian presence presents unique legal challenges. These concerns will become more acute in the future as mounting fiscal pressures lead Pentagon planners to further rely on civilian manpower within the fleet.<\/span><\/p>\n

In light of these risks, the U.S. Navy has recognized that civilian integration must remain attentive to international law. As one former naval commander<\/a> notes, \u201cthe key for the U.S. Navy is maintenance of disciplinary control and restricted employment of CIVMARs to ensure adherence to the laws of war.\u201d Specifically, U.S. naval planners should ensure civilian crew are only assigned to billets that do not entail command or weapons handling responsibilities, such as deck, engineering, and logistics roles traditionally filled on merchant vessels. Maintaining a clear divide between combat and non-combat functions is essential to ensure that the growing number of CIVMARs aboard U.S. combat vessels do not jeopardize their warship status, and if captured, do not risk being deemed unlawful combatants by enemy forces. By doing so, the United States can effectively respond to changing domestic realities \u2013 while demonstrating its commitment to the rule of law.<\/span><\/p>\n


<\/p>\n
\n
\n

1. The views expressed in this article are solely the authors\u2019 and are not necessarily endorsed by the Department of the Navy, Department of Defense, or the United States Government.<\/sup><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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