Features, Online — August 16, 2012 at 9:03 am

Blurring the Civilian-Combatant Line: Legal Implications of Deploying U.S. Civilian Mariners in the Libyan Theater

By LT Elan R. Ghazal, JAGC, USN and Manik V. Suri1

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 Growing civilian integration in the U.S. armed forces

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’s debt-ceiling standoff this time last year, much was said in support of (as well as against) proposed defense cuts that roiled the military establishment. And with the “fiscal cliff” fast approaching, additional spending cuts could automatically hit the defense budget in early 2013. 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.

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

 Deploying CIVMARs in Libya

On March 19, 2011, the USS Mt. Whitney deployed 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’s Sixth Fleet flagship, the Mt. Whitney 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’s 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 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.

CIVMARs are members of the Military Sealift Command, which “operates approximately 110 non-combatant, civilian-crewed ships that provide strategic sealift and ocean transportation for all military forces overseas.” 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.

Historically, the U.S. Navy only assigned “mixed” civilian and servicemen crews to naval auxiliaries, which lack offensive capabilities. Beginning in 2003, however, fleet commanders announced plans to transition a growing number of warship support functions (traditionally manned by active-duty sailors) to CIVMARs. This major policy shift marked the first time that U.S. warships had integrated civilian crews since privateers were outlawed – over a century and a half ago. The USS Mt. Whitney became one of the first warships to integrate CIVMARs, following its relocation to Gaeta, Italy, and designation as the Sixth Fleet’s flagship.

Greater civilian integration within the fleet is intended to enhance operational capabilities, limit overhead, and increase productivity pursuant to official guidelines that require measures to “ensure that the American people receive maximum value for their tax dollars.” Put simply, civilians are less expensive 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’s 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.

 Legal questions raised

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’ 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 “unlawful combatants” under the law of war – 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.

 

(1) Does a significant CIVMAR crew affect U.S. warship status?

 

“Warship” 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). “Warship” 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, Article 8 of the 1958 UN Convention on the High Seas (and later Article 29 of the UN Convention on the Law of the Sea) 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.

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 “regular armed forces discipline.” Until 2006, civilian personnel “serving with” or “accompanying” the force were subject to the Uniform Code of Military Justice (UCMJ) only during a “declared war,” which has occurred a mere five times since the Republic’s founding. However, on January 1, 2007, Article 2(a)(10) of the UCMJ was amended to broaden its application “in time of declared war or a contingency operation,” encompassing the vast majority of U.S. conflicts in which war is not declared – including the 2011 Libya operation. This amendment arguably satisfied the international legal requirement that a warship’s crew be subject to “regular armed forces discipline.” On this view, the USS Mt. Whitney’s large contingent of CIVMARs were under UCMJ jurisdiction – and therefore would not have affected its “warship” status.

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), including its alleged violation of civilian defendants’ Fifth Amendment “grand jury” right and Sixth Amendment “impartial jury” right (the UCMJ provides instead for trial by active duty military judges and juries). For years, a series of procedural and jurisdictional limitations prevented any court with civilian judges from reviewing the amendment’s constitutionality or the scope of civilian UCMJ jurisdiction. However, last November the nation’s highest military appellate court, the U.S. Court of Appeals for the Armed Forces (CAAF), granted review of the lower Army Court of Criminal Appeals’ decision in United States v. Ali, which upheld the constitutionality of a court-martial trial pursuant to 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).

Just weeks ago, the CAAF issued its decision upholding the constitutionality of UCMJ Article 2(a)(10), which grants military jurisdiction over civilians “serving with or accompanying an armed force in the field during a contingency operation.” The court distinguished a line of Supreme Court precedent dating back over a half-century that some scholars argue supports a “bright constitutional line” between military jurisdiction over servicemen and civilians, at least absent a formal declaration of war. Crucially, the CAAF did so by highlighting the Ali defendant’s 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 – such as a CIVMAR – could still be held unconstitutional. Were a court to do so in the future, such a holding might jeopardize the legal argument that CIVMARs (who are all U.S. citizens) are subject to “regular armed forces discipline.” This, in turn, would potentially implicate the “warship” status of combat vessels like the USS Mt. Whitney that are increasingly operated with sizable civilian crews.

 

(2) Are civilian mariners lawful combatants?

 

The U.S. Navy’s recent effort to expand civilian integration within the fleet also raises another serious legal issue concerning CIVMARs’ status if captured. A central principle of LOAC involves “distinction,” which requires that combatants and noncombatants be distinguished in order to limit war’s toll upon the latter group. Related to this principle is the notion of “direct participation” reflected in Common Article 3 of the Geneva Conventions, under which only members of the armed forces, militias, voluntary corps, and those who take up arms in levee en masse are permitted to actively engage in hostilities. These individuals enjoy “combatant privilege” under Article 43.2 of the Protocol Additional (Protocol I), 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.

At the same time, international law specifically recognizes that civilians may “accompany the force” in supporting roles and, if captured, grants them Prisoner of War status under Article 4 of Geneva Convention III. Hence, the U.S. Navy requires that CIVMARs carry a Geneva Convention Card reflecting their status as “persons who accompany the armed forces without actually being members thereof.” Nonetheless, it is uncertain whether an enemy would recognize CIVMARs’ 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 “direct participation in hostilities.”

International law remains unsettled 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’s 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 “unlawful combatant.” At one end of the spectrum, operating weapons systems or participating in a boarding party would almost certainly qualify as the “direct participation.” 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.

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 “direct participants.” Under this approach, all civilians aboard warships might be considered “unlawful combatants” 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 “accompany the force” in certain support functions.

Nonetheless, CIVMARs aboard the USS Mt. Whitney – and increasingly across the fleet – perform support functions related to engineering, deck, and logistics that could plausibly meet the threshold for “direct participation in hostilities.” For instance, civilian technicians who run the warship’s 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 “unlawful combatants” and faced criminal prosecution under Libyan domestic law – including being given the death penalty.

Understandably, in light of this risk, the U.S. government will seek to construct “direct participation in hostilities” 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 some commentators have noted 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 in determining Al Qaeda and Taliban detainees to be “unlawful combatants” and therefore not entitled to Geneva Convention protections (notwithstanding that detainees have received increasingly robust procedural and substantive protections in recent years). While a principled legal basis may, in fact, exist for the United States’ differing interpretation of “direct participation in hostilities” 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 “unlawful combatants.” Given this possibility, the legal status that captured CIVMARs would be accorded in enemy hands remains at least somewhat uncertain.

 

Preserving a functional divide between civilians and sailors

 

While the U.S. Navy has long supported small numbers of civilians aboard warships – including technicians to operate and manage advanced equipment, civilian academics to teach classes on-board during deployment, and journalists to report on the ship’s activities – 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.

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 notes, “the key for the U.S. Navy is maintenance of disciplinary control and restricted employment of CIVMARs to ensure adherence to the laws of war.” 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 – while demonstrating its commitment to the rule of law.



1. The views expressed in this article are solely the authors’ and are not necessarily endorsed by the Department of the Navy, Department of Defense, or the United States Government.

2 Comments

  1. Pingback: Blurring the Civilian-Combatant Line: Legal Implications of Deploying U.S. Civilian Mariners in the Libyan Theater | Isenberg Institute of Strategic Satire

  2. Pingback: Blurring the Civilian-Combatant Line: Legal Implications of Deploying U.S. Civilian Mariners in the Libyan Theater « manik suri

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