Civilian Prisoners of War: A Proposed Citizen Code of Conduct

• Author: Major Charlotte M. Liegl-Paul
• Pages: 04

CIVILIAN PRISONERS OF WAR: A PROPOSED CITIZEN CODE OF CONDUCT

MAJOR CHARLOTTE M. LIEGL-PAUL*

The battlefield of modern warfare is all inclusive. Today there are no distant front lines, remote no man's lands, far-off rear areas. The home front is but an extension of the fighting front. In the dreaded event of another allout war-a thermonuclear war-the doorstep may become the Nation's first line of defense. Under such circumstances, the new code of conduct for the American serviceman might well serve the American citizen.1

I. Introduction

For over fifty years, the U.S. military has used contractors in warfare.2 Significant issues regarding the legal status of civilians on the

battlefield, however, only recently have begun to emerge. More attention is being paid to how the civilian presence impacts the battlefield.3 The issue of what happens if the enemy captures a civilian contractor, and how that civilian should behave while in captivity has not yet been addressed.

The Department of Defense (DOD) issued guidance on isolated personnel training for DOD civilians and contractors.4 The instruction outlines "training requirements for DOD civilians and contractor personnel serving overseas or about to deploy overseas."5 The level of training depends on the risk of capture and focuses on helping contractors survive until they can be rescued.6 However, this instruction gives no specific guidance on civilian conduct while in captivity. Rather, the instruction directs the Commander, United States Joint Forces Command (USJFCOM) to "develop Code of Conduct training standards" in accordance with the armed forces Code of Conduct.7

The Code of Conduct is armed forces-specific.8 Each branch of the armed forces describes what is expected of service members in combat and in captivity.9 If a civilian, however, were to mirror the conduct expected of a service member, the civilian may jeopardize his noncombatant legal status. This oversight not only blurs the distinction between uniformed military combatants and civilian noncombatants,10 it

places civilian noncombatants in a precarious position.

The distinction between civilian and soldier must be maintained. The DOD must enact civilian-specific guidelines and training. Without civilian-specific guidelines and training, civilian noncombatants could unintentionally violate the law of armed conflict (LOAC) or law of war.11 If that happens, the civilian may lose his Geneva Convention protections.12 A civilian could then face continued detention by an

enemy state and subsequent punishment for war crimes or violations of

foreign domestic law.13 Neither prospect is palatable.

Conflicts in Afghanistan and Iraq currently involve the U.S. The

DOD employs civilians in a variety of roles in these conflicts.14

Department of Defense civilians and contractors, at times, work side by side with uniformed personnel. This close cooperation places civilians in danger of capture, captivity, and isolation. Civilians accompanying the force who are captured by the enemy will likely be classified as prisoners of war.15 Regulations, instructions and official memorandums, however, do not provide guidelines for surviving enemy capture. While the lack of material addressing civilian prisoner of war behavior has yet to pose a problem, America cannot afford to consider objectionable civilian prisoner of war conduct at the last minute, nor address it after the fact.16

To avoid violations of the laws of war allegations against the U.S., or even the appearance of a violation, the DOD must develop civilian-specific guidelines and training without delay.

This article begins by identifying the typical civilians on the battlefield and defining their legal status upon capture. Following that discussion is a brief history of the Armed Forces Code of Conduct, which includes the establishment, development and enforcement of the Code. The Armed Forces Code serves as a model for similar, yet noncombatant specific, guidelines for U.S. citizen civilians as prisoners of war. As with the Armed Forces Code, the civilian guidelines will function as a moral obligation with enforcement through criminal prosecution for misconduct defined under current U.S. statutes. The U.S. may not want to acknowledge the potential for civilian prisoners of war, but the prospect seems inevitable. Under these circumstances, the opportunity for change is best addressed before American civilian contractors are captured.17

II. Background

"Since the end of the Cold War, the DOD has cut more than 700,000 active duty troops,"18 as well as more than 300,000 DOD civilian positions, without a similar reduction in operational requirements.19

Consequently, significant numbers of DOD contractors and DOD civilian employees will deploy for combat and other contingency operations with the United States military forces.20 Given the current resistance to increasing the size of the active-duty force and the limits on the number of military personnel allowed in an area, deploying civilians will continue to be the standard practice.21

Due to the significant force drawdowns and budgetary constraints, current DOD policy is to "civilianize" positions whenever possible as a way to save costs while minimizing the impact on force effectiveness.22

Properly applied, civilian support is a force multiplier that enhances a commander's operational capability.23 Civilians can provide greater continuity in certain positions and free the uniformed personnel for combat-specific functions.24 Civilian support, however, creates a quagmire of legal issues for the battlefield commander.

One of those issues is how civilian conduct in captivity will reflect upon the United States' military. Before delving into the conduct required of civilians in a prisoner of war environment, it is necessary to define the types of civilians supporting military operations and their status under international law.25 Following that will be a discussion of the development and utility of the Armed Forces Code of Conduct. The Armed Forces Code of Conduct will then be used as a model for a similar civilian code of conduct in prisoner of war situations.

1. Civilians Supporting Military Operations

   "Civilians fall within three main categories: DOD civilian employees; contractor personnel which includes personnel under contract with or employed by an organization under contract with the DOD; and non-affiliated persons-a broad group of civilians who share overlapping interests with the military."26 Civilians serve in a variety of support

   positions, including transportation, maintenance and repair, and weapon system support.27

   Civilians accompanying U.S. forces28 typically include DOD civilian employees and DOD contractors.29 Department of Defense civilian employees are "U.S. citizens or foreign nationals employed by the [DOD] and paid from appropriated or non-appropriated funds under permanent or temporary arrangement."30 A DOD contractor is "[a]ny individual, firm, corporation, partnership, association, or other legal non-federal entity that enters into a contract directly with the [DOD] to furnish services, supplies, or both, including construction."31 While these definitions include persons other than U.S. citizens, this paper concentrates exclusively on U.S. citizen contractors and civilian employees, collectively referenced as civilians, unless otherwise noted.

   Fortunately, the vast majority of U.S. civilians in a hostile fire or combat zone have volunteered for this hazardous service to their country.32 Civilians volunteer either by way of an emergency-essential agreement33 or via a contract with a government agency. Nevertheless,

   under current DOD policies and procedures, civilian employees can be directed or assigned to perform emergency-essential missions involuntarily or on an unexpected basis.34 On the other hand, the terms and conditions of the contract govern a contractor's presence.

2. Status and Applicable Law

   Whether on the battlefield voluntarily or involuntarily, each person must have a classification in order to determine his or her rights and responsibilities. Personnel on the battlefield are classified as either combatants or noncombatants.35 This classification is critical in determining an individual's legal status under international law.36

   Combatants encompass uniformed members of the armed forces, with the exception of medical personnel and chaplains.37 The Geneva Conventions do not define noncombatants; however, by implication, noncombatants include all personnel who are not members of an armed force.38 Combatants have the right to participate directly in hostilities;39 all others must refrain from participating in the hostilities.40 Civilians acting inconsistent with their noncombatant status risk losing the protections of this status41 and facing war crimes allegations if captured. Refraining from participating in hostilities protects the noncombatant

   from targeted attack.42 Noncombatant civilians near the hostilities, however, risk incidental harm during an attack of legitimate military objectives, for example the armed forces. In other words, mere civilian presence does not immunize an area from military operations.43

   A noncombatant's legal status, rights, and obligations depend upon the issue addressed and the nature of the conflict. The full scope of the Geneva Conventions only applies during international armed conflicts or during occupation by one state of the territory of another.44 During contingencies not amounting to international armed conflict, host nation law or applicable status of forces agreements determine a civilian accompanying the armed forces' status.45 The Geneva Conventions also provide protections during non-international conflicts;46 however, these protections are minimal.47 The remainder of this article focuses on international armed conflicts.

   During international armed conflicts, international law determines the noncombatant's status upon enemy...