Civilians at war: reexamining the status of civilians accompanying the armed forces.

• Author: Heaton, J. Ricou

1. INTRODUCTION II. TYPES OF REMOTELY CONDUCTED COMBAT OPERATIONS A. The Spectrum of Computer Network Attack and Exploitation Activities B. Unmanned Vehicles III. THE TREATMENT OF CIVILIAN EMPLOYEES AND CONTRACTORS UNDER THE LAW OF WAR A. The Divisions Amongst Combatants, Noncombatants, and Civilians 1. Combatants Defined 2. Noncombatants Defined 3. Civilians Defined 4. Mercenaries Defined B. Determining What Constitutes Direct Participation in Hostilities C. Law of War Constraints on the Use of Force Affecting Civilians Accompanying the Armed Forces IV. CIVILIAN INVOLVEMENT WITH THE ARMED FORCES IN COMBAT A. Armed Forces Utilization of Civilian Employees B. Armed Forces Utilization of Civilian Contractors 1. Range of Services 2. Reasons for Use V. CIVILIAN PARTICIPATION IN REMOTELY CONDUCTED COMBAT OPERATIONS UNDER THE LAW OF WAR VI. INADEQUACIES IN THE LAW OF WAR CONCERNING THE REGULATION OF ACCOMPANYING CIVILIANS PARTICIPATING IN COMBAT OPERATIONS A. The Law of War Fails to Adequately Separate Combatants From Civilians B. The Narrow Definition of What Constitutes Direct Participation in Hostilities Promotes the Civilianization of Military Forces C. The Law of War Does Not Distinguish Between Civilian Employee and Contractor Participation In Combat Operations D. The Prohibition Against Civilian Participation in Remotely Conducted Combat Operations is Subject to Circumvention VII. MODIFYING THE LAW OF WAR A. Establishing Which Activities Constitute Direct Participation in Hostilities 1. Clarifying the Meaning of Direct Participation in Hostilities 2. Procedure for Specifying Which Activities Constitute Direct Participation in Hostilities B. Readdressing the Status of Accompanying Civilians 1. Designating Civilian Employees as Remote Combatants 2. Accompanying Civilians Providing Essential and Direct Support Should Be Lawful Targets for Attack 3. Procedure for Authorizing Change in Civilian Status VIII. CONCLUSION I. INTRODUCTION

   Until the last century, the infliction of violence during war was an intimately personal experience. Warriors fighting with sword and spear could not be far removed from their opponents. The advent of gunpowder and later of aircraft stretched the physical dimensions of the battlefield, but still kept combatants in close proximity to the targets of their attack.

   New technologies available to states have expanded the zone of conflict while at the same time allowing personnel engaged in hostilities to be far removed from the battlefield. This remotely conducted combat may take forms such as attacking an enemy's computer networks with worms and viruses or using remotely controlled unmanned aircraft to launch missiles onto the battlefield. Utilizing these methods, combatants sitting before computer screens can launch attacks against an enemy hundreds or even thousands of miles away.

   A second development in the realm of armed conflict is the widespread practice of states shifting activities previously performed by military personnel to civilian employees and contractors. States increasingly are integrating civilians into their military forces, relying on them to operate and maintain sophisticated military equipment and to support combat operations. While this practice offers substantial benefits to states, which may be able to save money and gain access to superior technical expertise, it brings with it the risk of violating the law of war by inappropriately involving civilians in combat operations.

   The law of war attempts to regulate state utilization of civilians in combat operations in the course of international armed conflicts by prohibiting civilians from directly participating in combat. The policy behind this prohibition is the desire to protect civilians from being targeted for attack. The effectiveness of this prohibition has been substantially undercut, however, by the failure of the law of war to provide a clear definition of what constitutes direct participation in combat. A prohibition that may have been easy to apply with simple weapons systems operating at short range does not provide clear guidance about the legality of civilians providing essential services in support of a state's warfighting efforts. States are aware of this ambiguity and have taken advantage of it to increase civilian participation in military activities.

   The intersection of states making increased use of civilians and the development of remotely conducted combat operations forms a useful lens through which to analyze the inadequacies of the law of war in regulating civilian participation in combat in international conflicts. Currently, civilians are significantly involved in maintaining and operating the technologically complex systems used in remotely conducted combat operations. Definitional ambiguities and inadequacies in law of war prohibitions against civilians directly participating in combat are accentuated when applied to civilians situated far away from any battlefield, but who are nonetheless supporting or engaging in combat activities.

   The issue of whether civilian employees and contractors may participate lawfully in combat activities and, in turn, be the subject of a lawful attack is relevant for four reasons. First, states are increasing the role civilians play in their armed forces to the point that civilians play an indispensable role in the ability of many states to use military force. Second, clear and logical guidelines concerning what combat related activities these civilians may engage in are necessary to prevent a blurring between civilians and combatants that may endanger the general civilian population. Third, civilians who do engage in combat activities in violation of the law of war may become unlawful combatants and face criminal liability for their actions. Fourth, a state using civilians in violation of the law of war will be in breach of its responsibilities under that law.

   The law of war concerning civilians accompanying the armed forces needs to be changed to better protect these civilians and to maintain the general distinction between combatants and civilians unaffiliated with the military, while also acknowledging and legitimizing the fact that civilians are so integrated into many armed forces that they have become an indispensable and inseparable part of them. To accomplish these goals, the law of war should be modified in three ways: 1) direct participation in combat should be defined clearly and narrowly to enable states and individuals to determine when civilians are engaging in combat; 2) states, after complying with appropriate notification requirements, should be able to designate civilian employees as combatants for the purpose of engaging in remotely conducted combat operations, and 3) civilian contractors and employees who provide direct and essential support to combat operations should be acknowledged as legitimate targets for attack.

   The proposed changes in the law of war will be explored in six sections, beginning with Section II, which discusses the range of activities involved in two primary types of remotely conducted combat operations: computer network attack and exploitation; and the use of remote-controlled vehicles.

   Section III then examines provisions in the law of war relevant to civilian employees and contractors. This examination includes a discussion of how civilians and combatants are defined under the law of war and the treatment accorded civilians accompanying the armed forces. This section discusses the meaning of the prohibition on civilians taking direct part in hostilities and how ambiguity over what civilian activity falls within this prohibition undercuts its effectiveness.

   Section IV provides an overview of how states currently are integrating civilian employees and contractors into their militaries and using them in combat operations. Section V then examines the extent to which civilian employees and contractors may participate in remotely conducted combat operations under the law of war.

   Section VI discusses problems with how the law of war regulates civilian participation in remotely conducted combat operations. The article will conclude in Section VII by recommending changes to the law of war to better regulate the combat-related activities of civilians accompanying the armed forces.

   In the course of discussing these issues, a particular, although not exclusive, focus will be placed on how the United States uses civilian employees and contractors. This emphasis reflects the fact that the United States has significant capabilities to conduct combat remotely, has engaged in several international armed conflicts in recent years, and uses large numbers of civilian employees and contractors.

2. TYPES OF REMOTELY CONDUCTED COMBAT OPERATIONS

   1. The Spectrum of Computer Network Attack and Exploitation Activities

      Computers are indispensable components of a modern economy and military. The benefits computers provide, however, come at a cost. The same computers that process financial transactions for a bank, monitor maintenance of military aircraft, or control the flow of natural gas through a pipeline are vulnerable to computer network attack and exploitation (CNAE) and this threat is growing. (1)

      Computer network attack (CNA) involves operations that target an enemy's computer systems for the purpose of destroying, altering, or denying the systems or the information they contain. (2) Computer network exploitation (CNE) involves operations intended to obtain information from an enemy's computer systems. (3) Three characteristics of CNAE are: 1) they may be carried out from almost any location, 2) they may achieve many of the same results of conventional weapons, and 3) states have a widespread interest in developing the capacity to engage in CNAE. CNAE operations are well-suited to being conducted remotely because a targeted computer network can be attacked from any computer or other device with which it can communicate. (4)...