From Confiscation to Contingency Contracting: hoperty Acquisition on or Near the Battlefield

• Author: Elyee K D. Santerre
• Pages: 03

1. INTRODUCTION

   While the mechanics of acquring logistical support on or near the battlefield have received eans>derable attention lately,' much workremains to be done. Doctrine on contingency contracting IS still in the early stages of The vast majority of contracting officers are civilians, not soldiers who will be deploying with the farce they 8upport.S Contracting mechaniams to pay for seizures and requiatiom do not exist, except BS ratifications of "unauthorized eommitment~."~

   The contracting system "worked" in Grenada primarily because the duration of the armed conflict was limited. This enabled contracting and Corps of Engineers personnel to arrive in country after the shooting had stopped, but still only a short time after a number of informal obligations had been made.'

   This article will examine the current state of the law relating to contingency contracting. Contingency contracting, as used in this article, refers to contracting in the early stages of a combat deployment.e Recent developments in doctrine will be considered in

   *Attarney-Adv>aar, Ofice ofths SfaffJudgs Advocate. 8th Infantry Dinaian (Light). Fort behardson, Alaaka Formerly Captain, Judge Advocate General's Corps, and assigned as Chief, Claims Branch, Office of the Stafi Jvdge Advocate, Fort Lawm Washmgtan, 1988.89 Chief, Legal Assistance, and Civll Law Attorney, Fon Rdsy Kansas. 1984.87, Chief, Claims Branch. Chief, Cnminal Law Branch. and Contracts Attorney. Fort Richardson. Alaska, 1982.84, and 88 Transportation Corps oficer. 1976-78. LL M., The Judge Advocate Generel'e School. 1988. J D , University ai California (Berkeley), 1981,B A, Univ~rsityofNarthDakata, 1976 Memberafthe barofCalifor. ma This article la bssed upan a thesis submitted m partd satafactmn of the 36th Judge Advocate Officer Graduate Caurae

   Litlle & Chambers, Ciealirr Logrsfrs an Cos& Rcca. Army hglsfician. Jan.-Feb 1988, sf 8, Powell & Toner. Conlmefing During a Foreign Ezrmise. Army Lagistleian, Jan .Feb 1988, sf 14

   *See Dep't af Army, Concepts and Studies Diviamn, Directorate of Combat Develop-ments, US Army Qvartermaater School. Interm Operatma1 Concept. Contrectmg for the Army in tha Fmld, iCoordinating Draft. 17 November 19871 [heremafter Draft FJII, and P Ollhatt. Contingency Cmtracfing Smart Book 11987) (contmmg a reeam. mended Department of the Army Pamphlet)

   'C h w e & P Ollhaft, Army Canfingoney Contracting 71 '1985)'See infm text sccompsnying notes 271-80.'See Braswell. Th& Big Bucks of Opimnan Urgent Fury, Saldisr Suppart Journal, JulyrAvgvst 1984 at 6area8 outside the established log~sticalbaaes in Europe and KoreaBSrr P ollhatt. supra note 2. at 14. ThlS srtlele Wlll concentrate On acqulslilon I"

   making recommendations to commanders and their legal advisors on how best to use contingency contracting under current law Recom. mendations for change form the final Section of this article.

   11. LAW OF WAR LIMITS ON COMBAT ACQUISITION

   A review of the current law would not be complete without a review of the international law applicable to acquisition of property on the battlefield or in occupied territory. Although, as will be discussed later. compliance with international law 16 only a first step--a bare minimum of legally acceptable behavior-it is a neceBsary first Step A violation of contracting regulations and Statutes may result m a commander becoming personally liable for payment of a contract or answerable for a domestic "white collar crime " A violation of international law in this area could result in a commander being charged with a violation of the law of war '

   1. DEFINITION OF TERMS

      Definition of three apparently very similar terns-confiscation, sewure, and reqmsitian-is required before pra'eedmg. ''Confiscation" refers to permanent appropriation of enemy property wtthout payment of eompensation.8"Seizure" 1s similar to confiscation in that it refers to a taking ofproperty wlthout immediate payment of eompensation; however, items "seized must be returned. or compenaation paid for them, at the end of the armed canfiict? "Seizure" LS used by some writers to refer to any uncompensated appropriation, without distinguishing confiscation;'0 however, in this article it will be used in its narrower sense "Requisition" refers to appropriation of private property in occupied areas for the needs of an army of occupation Compensation must be paid for requisitioned property as soon a8 possible."

      The circumstances far use, and Imitations on the use, of each of these three methods of property acquisition depends on the location and the nature of the property acquired

      -2 L Oppenheim. Inisrnational Law 5 113 (0th ed 1952)'Generail>. this applieaonlytoenemypvbliemovablepraperty See inrrotext mom. panyng notes 12-16 & 65-70: me d m Dep't of Army, Pamphlet KO 27-161-2, Inferns-tmnd Lau. Vd 11. at 176 (23 October 19521 Ihereinaiter DA Pam 27-161-21

      QA Pam 27-161-2 BI 176

      "See, egg.xnfm text aecompanilng note 16lLDAPam 27-161-2 at 181

      19891 BATTLEFIELD ACQUISITION

   2. PROPERTY CAPTUREDIFOUND ON BATTLEFIELDS

      Rules governing property captured or found on the battlefield turn on whether the property is public or private, with additional mles pertaining to certain specific classer of protected property.

      I . Enemy Public Property

      (a) In General

      Enemy public property found on the battlefield presents few law of war problems. In general, it may be confiscated or destroyed if "military necessity" requires such confiscation or destruction." An action is justified by military necessity ifit is "indispensable for securing the complete submission of the enemy as soon 88 possible" and not forbidden by international law.13 A duty to pay compensation for enemy public property arises only if the law of war is violated." The commander does not have free rein completely, however, ~n determining what constitutes military necessity. One commentator suggest8 a "reasonably prudent commander" rule-that confincation or destmctlon is legally justified if a "reasonable prudent commander acting in compliance with the laws of war''16 would "have authorized such destruction or seizure under similar

      (bl Protected Targets

      Specific types of enemy public property are accorded additional protection. The major categories of such property are the traditionally protected targets: religious and medical buildings; historic monu-ments; and buildings used for art, eeience, or charitable purposes. When properly marked and not used for military purposes, they not only are forbidden as targets for destruction," but also eqoy certain immunities against seizure or confiscation.

      Medical establishments, if captured, must be permitted to continue operating as such, at least until other treatment is secured for the

      "Regulatmns annexed to Hague Canvention IV 1907,art 23rgl,36 Stat 2277, T S

      No. 639 [hereinafter HRI

      "Dep'f of Army.

      Field Manual No. 27-10, Ths Law of Land Warfaars, para 3(a) (18 July 19561 [hereinafter FX 27.101

      "See HR, svpm note 12. art 3

      "M Greenspan, The Modern Law of Land Warfare 279 (1969) That last preceding '*Id See text aceompanymg note 10"HR. ~ u p m note 12. art 27

      phrass does, however, make the definition B bit Lautologlcal

      patients found there Medical transport equipment may not be con.fiscated except in the case of forced landings due to bad weather, mechanical breakdowns, or simdar situations. In such cases, the per-sonnel aboard may be taken prisoner lor retained, depending on then status) and the aircraft or other medical vehicle may be confiscated Agar. this is subject to the requirement that the capturing forces ensure proper care for the patients.'' In any case in which medical transport equipment 18 used for "on-medical purposes, any protective markings must, of course, be removed '' All other medical equipment may be confiscated, but only after ensuring that the wounded and sick receive proper care. Under no circumstances may captured medical supplies be deliberately destroyed?2 If medical supplies, equipment, or buildings are the property of a relief smety recognized under the Geneva Conventions, they may be requisitioned, but not confiscated or seized, for urgent medical needs.z3 "Fair" compensation must be paid for "requisitioned" property "Use, not strict legal title, IS the key to whether items are the property of a relief society 25

      "Cultural property" 18 also to be afforded special protection It is treated as private property. even if publicly owned Buildings dedicated to art, science, etc., may be used for quartenng of troops, Stor-age of supplies, and similar uses if necessary, but any damage must be avolded to the fullest extent possible." Religious buildings, as a matter of U S. policy, are to be used only for medlcal needs, and only when urgently needed." Moveable cultural property may enJoy anadditional form of protection, which extends to the truck. train. or other vehicle carrying it When cultural property is being transpaned to a place of safety, as provided for in Articles 12 or 13 of the 1954 Hague Convention on Cultural Property, it may not be confiscated or seized, and "the means of transport exclusively engaged In the trans-

      Weneva Convention for the Amelioratmn ofthe Condition of tho Wounded and Slek ~n Armed Forcer ~n the Field. Aurust 12, 1949, [heremaher GWSl an 19 6 US T3111. T 1 A S Pia 3362

      Tntematmal C~rnm~lteeai the Red Crass, Commentsr). I Geneva Convention for

      the Amelloraflon of the Condition of the Wounded and Sick ~n Armed F ~ r ~ e s m the

      Field 293 (J Pictet ed 19581 [heremaner Plcter, YYI

      I1

      *%U'S, supra note 18. art 35z'Id art 44021d art 33"Id art 34

      19891 BATTLEFIELD ACQUISITION

      fer of such cultural property" 18 also immune from confiscation or seizure.z9

      Protected cultural property can be identified by its required distinetive markings: three blue and white shields in a triangular formation (one shield beiowl The individual shields consist of "a royal blue square, one of the angles of which forms the paint ofthe shield, and of a...