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Murky 'Blackwater' and the Direct Participation Dilemma

JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that effectively controlling the exponential increase in US reliance on civilian contractors in foreign military operations requires greater clarity regarding the legal limits of what functions these civilians may perform...

Recent events in Iraq involving the conduct of Blackwater contractors providing security for U.S. diplomats in Iraq have once again shone the light of controversy on the role and legal status of civilian contractors. Although these particular contractors were working for the Department of State and not the military, they and the organization they work for have come to symbolize the historically unprecedented role civilians are playing in support of U.S. military operations. These civilians have become an indispensable ingredient in the projection of U.S. military power and the execution of U.S. military operations. A numerical comparison between the first Gulf War and the ongoing Iraq conflict illustrates this point: during the Gulf War (Operation Desert Storm), the ratio of military to civilian contractor was 60:1; today, there are actually more civilian contractors employed by the U.S. in Iraq than uniformed personnel.

Contrary to the perception created by the focus on Blackwater, the vast majority of these civilians are not performing what most observers would classify as “combatant” functions. Instead, they provide a vast array of support services, ranging from transportation to food preparation. However, a proverbial triangulation of three factors are unquestionably pushing civilians ever closer to performing functions traditionally reserved for members of the armed forces. These three factors include the seemingly endless demands on military commanders to do “more with less”; the limited numbers of uniformed forces available to commanders to accomplish this goal; and the relatively unlimited availability of civilians and the dollars to hire them to augment the functions of the uniformed forces. This use of contractors to fill the vacuum produced by the downsizing of the armed forces can be summed up in what military commanders would refer to as increasing the “tooth to tail” ratio – maximizing the availability of military personnel to perform combatant functions by relying on civilians to perform support functions. Unfortunately, as the operational demands on our forces continue unabated, the line between the “tooth” and the “tail” is invariably stressed.

The Secretary of Defense is, according to news reports, unhappy with his Department's oversight of contractors in Iraq. As the fact-finding team he dispatches to Iraq begins to wade into these murky waters, they will discover not only that it is obviously easier to “hire” civilians to work for the military in Iraq than it is to expand the armed forces, but also that there is very little clarity on the legal limits of what functions these civilians may perform.

It would seem axiomatic that the law that regulates the conduct of military operations – the law of war – would clearly prohibit the use of civilian support personnel for anything close to a “combatant” function. This, however, is not the case. Instead, for decades the prohibition on using civilians to perform such functions has been inferred from a provision of the law of war that is focused on permissible targets, and not permissible civilian functions. Known as the “direct participation in hostilities” rule, and derived from Article 51 of Additional Protocol I to the four Geneva Conventions of 1949, this “rule” posits that civilians are prohibited from taking a direct part in hostilities. However, Article 51 contains no such prohibition. Instead, this provision of the law of war simply establishes the pragmatic rule that the immunity from direct attack provided to any civilian is forfeited if and when the civilian takes a direct part in hostilities. Accordingly, Article 51 is a rule of consequence, and not a rule of prohibition.

If the meaning of “direct part in hostilities” was universally understood, this “prohibition by inference” would prove sufficient to establish a meaningful line of demarcation between permissible and impermissible civilian support functions. Unfortunately, this is not the case. Instead, there is no accepted definition of this term. In fact, the International Committee of the Red Cross working in conjunction with some of the most distinguished law of war experts in the world has been attempting for several years – unsuccessfully – to develop such an accepted definition. As a result, the meaning of “direct participation”, and the accordant limit on the permissible role for civilian contractors, has been left to case by case determination. Such an approach would probably still be effective if military commanders could call upon sufficient numbers of uniformed personnel to meet operational requirements. Indeed, most commanders would probably prefer a force composed entirely of military personnel in order to ensure maximum command, control, and discipline. However, when the numbers of available military forces is as limited as it is today, the pressure to achieve operational goals creates a real risk of using this malleable direct participation test to push civilians ever closer to traditional combatant functions, particularly for an armed force as dependant on technological sophistication as ours.

In spite of the fact that there is no universal agreement on the meaning of “direct participation in hostilities”, there is virtually no dispute that such a line must be drawn somewhere. Practitioners and scholars do universally agree that the law of war prohibits the wholesale civilianization of the battlefield. From the perspective of the U.S. armed forces, this principle is reflected not only in the continuing effort to make the direct participation rule work, but also in federal acquisition regulations prohibiting the use of contractors to perform “inherently governmental functions” – another concept that although ill-defined is based on the assumption that certain battlefield functions are legally reserved to members of the armed forces.

What is therefore needed to begin to effectively control the exponential reliance on civilian contractors is a more effective and predictable “test”. As I have proposed in a forthcoming article, this test must acknowledge the underlying logic of the direct participation standard. However, it is essential to also recognize that because this standard is based on a rule of consequence, and not an express prohibition against using civilians to perform “direct participation” functions, its application is potentially under-inclusive and subject to manipulation (for example, how does the “consequence” rule apply when the civilian contractor is advised of, and accepts the risk of being targeted by an opponent. Does this justify the use of a civilian to perform a direct participation function?).

The alternate test I have proposed is called the functional discretion test. The focus of this test is compliance with the laws and customs of war. In application, each proposed civilian function would be assessed to determine whether abuse of discretion in execution of the function would likely result in a violation of the law of war. To illustrate, consider an interrogation facility, with a proposal to contract civilians to act as both translators and interrogators. The scope of discretion related to translation involves the meaning of words and phrases. Abuse of this discretion might result in inaccurate information, but is unlikely to result in a war crime. However, the scope of discretion related to interrogation involves the methods used to obtain information. It is clear that abuse of that discretion creates a very high risk of committing a war crime. Accordingly, the translator function may be civilianized, but the interrogator function should be reserved to a member of the armed forces.

There are other benefits to this alternate test, one of which is that it is better aligned with the core competencies of military lawyers called upon to advise commanders on civilianization decisions than assessing what is and what is not direct participation in hostilities. While it is not a talisman, if used as a method of “coding” military functions, it would provide a foundation for a top-down delineation of permissible and impermissible civilian functions; a delineation focused on compliance with the law of war as opposed to the consequence of non-compliance. Until such a top-down approach is implemented by the Department of Defense, the case by case approach that has created the apparent frustration at the highest levels of the Department will persist, and the “black waters” will remain murky and dangerous.

Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.

October 02, 2007

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