Law Regarding Civilian Combatants, Contractors Murky, Say Experts

November 20, 2007

With the advent of urban warfare in recent decades, it has become increasingly difficult for soldiers to distinguish between direct participants in hostilities (DPH) and ordinary citizens. Laws governing how to deal with civilian combatants or contractors offer little guidance, said experts during a panel discussion Nov. 16 in Caplin Pavilion.

W. Hays Parks, assistant general counsel for the U.S. Department of Defense, participated in a panel on civilian combatants last week.

Civilians have always played a role supporting hostilities at a distance from the battlefield. However, "recent decades have seen a radical change," said panelist Phil Sundel, legal adviser to the International Committee of the Red Cross (ICRC).

Several aspects of modern battle have blurred the once-clear distinction between combatants and citizens, he said. These include a shift of military operations away from battlefields to an urban environment, an increase in the number of irregular forces participating in armed conflict, and a recent trend of war activities ordinarily performed by members of the armed forces sometimes being performed by civilians.

As a result of these changes, "We've seen peaceful civilians being more likely to fall victim to erroneous targeting," as well as members of the armed forces being attacked by combatants they cannot distinguish from civilians, Sundel explained.

According to the Geneva Convention, civilians participating directly in hostilities "lose the distinction of being a civilian as opposed to being a member of an armed force," as long as their participation lasts, Sundel said. He added that the problem with this concept is that the Geneva Convention did not outline a clear definition of what "direct participation in hostilities" means.

"It's out of this need to limit the application of the recognized rule regarding direct participation in hostilities that the ICRC initiative [to address the blurred distinction between combatants and civilians] was undertaken," he said.

So far, the ICRC has held three meetings on the subject, with a final meeting scheduled for 2008. Following the last meeting, "a final interpretive guidance will be prepared," he said. This draft, along with the proceedings of the four meetings, will be published as the recommended interpretive guidance for applying the concept of direct participation in hostilities.

Panelist Hays Parks, assistant general counsel to the Department of Defense and one of the experts consulted in the ICRC meetings, added that the intent of the ICRC is to be advisory in nature and to encourage further discussion on the issue.

According to Parks, one concept that the experts were able to agree on was whether or not a civilian is a direct participant in hostilities is entirely situational. "Now that really takes you a long way, doesn't it?" Parks joked, adding that when it comes to further definition, the issue is "clear as mud."

After much discussion, he said, the experts were able to come up with several factors in determining whether or not a person is a DPH: who the participant is, what they are doing, the time of the action, and where the action is taking place.

Parks added that the ICRC included a paragraph at the end of the drafted solution advocating capture instead of killing combatants. According to the ICRC, "if you can capture them, or get them to surrender, rather than shooting them, you must do that," he said.

Criticizing this concept, Parks said, "There is no such standard in international law, or U.S. federal law, British domestic law, Canadian domestic law, or anyone else's law." Protests from Parks and several other experts opposing the paragraph factored into the need for an additional meeting in 2008.

Following Parks, Laura Dickinson, a professor at the University of Connecticut School of Law, changed the course of the debate by speaking about issues concerning the accountability of private contractors.

"We've really seen a dramatic shift in the extent to which we are relying on private contractors when we project our power overseas," Dickinson said. The Department of Defense has estimated that in Vietnam, the ratio of contractors to soldiers was 1 to 10, while in Iraq it is closer to 1 to 1, she noted.

This shift is a result of changing factors such as force reductions, and advances in the technology required for weapons and weapons maintenance, she explained. The shift raises risks to "the values embedded in international human rights law and also other values such as transparency and participation," she said.

Dickinson cited contractors' participation in the abuse at Abu Ghraib as well as the Blackwater incident, in which guards fired into a crowd, as examples of the risks involved in privatization of war-related activities. She said that, although these are worst-case scenarios, "they point out the risks of abuse that are there."

An accountability framework does exist for contractors, Dickinson said, but she judged it insufficient. She cited three areas that need improvement: criminal law, contracts, and tort law.

Concerning criminal law, the question is whether or not we should extend criminal jurisdiction to include contractors, Dickinson said. Creating an office in the Department of Justice with responsibility for cases involving contractors would "build up expertise and enhance accountability," she said.

According to Dickinson, the foreign policy contracts fall short in a number of areas. For example, the contracts could be more specific, especially regarding the use of force and training of contractors, she said.

Dickinson argued that, in terms of tort law, the big question is whether contractors get the benefit of immunity. "If the contractor has discretion, and is providing services, and arguably, if they are authorized to use force, there may be an argument that immunity should not apply," she said.

Emphasizing that we should focus on the law in action, not only in books, Dickinson said that there should be a much broader public conversation about which functions should be outsourced.

The panel was moderated by Maj. Chris Brown of the Judge Advocate General's Legal Center and School and co-sponsored by the Law School's Human Rights Program and the JAG School.

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