Civilians at The Tip Of The Spear

[Major Lisa L. Turner and Major Lynn G. Norton]{.smallcaps}[^1]

I. INTRODUCTION

> \[C\]ivilians have established themselves as an integral and vital
> part of the Department of Defense's total force team. With
> distinction, they perform critical duties in virtually every
> functional area of combat support and combat service support, both at
> home and abroad.[^2]

During the last decade, the U.S. Armed Forces have continually
encountered a wide variety of civilians across the deployment and
conflict scenario, a trend that will only increase in the 21^st^
Century. [^3] As the armed forces have been called upon for
ever-increasing support for Military Operations Other Than War,[^4] and
to privatize and outsource[^5] many functions previously performed by
military personnel, judge advocates now address complex issues arising
out of increased numbers of deploying government civilian employees and
contractor personnel. Once in a deployed location, commanders and their
judge advocates interact with civilians working with intergovernmental
organizations (IGOs), non-governmental organizations (NGOs), private
voluntary organizations (PVOs), international refugees, stateless
persons, and internally displaced persons (IDPs), each with unique
statuses under various international agreements. This article examines
the legal statuses of three primary groups of civilians and introduces
major issues deployed commanders and their judge advocates are called to
address as a result of the civilian presence at the tip of the spear.

The article begins by identifying and defining the three primary groups
of civilians encountered across the spectrum of conflict: Department of
Defense (DOD) civilian employees; three sub-categories of contractors;
and non-affiliated civilians including the media, NGOs, PVOs, IGOs,
refugees, stateless persons and IDPs. Each primary group of civilians is
examined to assess their importance to commanders and consequently judge
advocates.

The body of the article addresses major civilian issues judge advocates
may confront. In particular, it examines the physical and functional
proximity to hostilities, status upon capture, status under host nation
law, wear of uniforms, carrying weapons, force protection concerns and
obligations, and medical and legal support for civilians. Even so, some
issues leave more questions than answers. Although the U.S. military has
been encountering civilians in rapidly increasing numbers since
Operations Desert Shield and Desert Storm, doctrine and regulations are
only now starting to address many issues judge advocates have been
addressing for years.[^6] This article compiles relevant information on
civilians in one location so judge advocates will have a single resource
to quickly answer major civilian issues.

II\. CATEGORIES OF CIVILIANS

> Never has there been such a reliance on nonmilitary members to
> accomplish tasks directly affecting the tactical success of an
> engagement . . . the military is facing a fundamental change in the
> way it conducts warfare, and there is little evidence that the players
> have been adequately prepared for that change.[^7]

Members of the U.S. Armed Forces have met many challenges in recent
years to create infrastructure in places where none had previously
existed. From experiences in Bosnia, Haiti, Somalia, and elsewhere,
those planning and executing operations have expanded their
considerations to encompass METT-TC: mission, enemy, terrain, troops,
time available, and now adding civilian concerns to the formula to
reflect the changing nature of military operations.[^8] To succeed in
military operations, Joint Task Force Commanders are now taught that
they must consider civilians.[^9] 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.[^10] Each
group has varying statuses, rights and responsibilities under
international and domestic law, and under DOD and service regulations.
Analysis of issues is therefore predicated upon understanding the
different types of civilians.

A. Department of Defense Civilian Employees

> The DoD civilian work force shall be prepared to respond rapidly,
> efficiently, and effectively to meet mission requirements for all
> contingencies and emergencies.[^11]

Civilian employees are an integral and essential part of the military
total force structure. They comprise a quarter of the force and serve in
over seventeen nations.[^12] DOD civilian employees, as "partners in
national defense," regularly go into harm's way to support military
operations.[^13] Recently, the General Accounting Office (GAO) estimated
that 14,391 civilians deployed to the Middle East in support of
Operations Desert Shield and Desert Storm, and 5,900 civilians supported
6,000 uniformed Army personnel in Bosnia for Operation Joint
Endeavor.[^14] As U.S. forces downsize, and as the operations they
perform increase, the need to deploy civilians has grown.[^15] Judge
advocates must prepare to encounter civilian employees in the
battlespace of the twenty-first century.

Under international law, civilian employees of an armed force include
"persons who accompany the armed forces without actually being members
thereof" and who have "received authorization, from the armed forces
which they accompany."[^16] This definition is important as it triggers
prisoner of war protections. The category of DOD civilian employees is
very broad, for example, encompassing members of the American United
Services Organization (USO), civilian aircrew members, and civilian
support personnel.[^17]

The DOD defines its civilian work force as "U.S. citizens or foreign
nationals hired directly or indirectly to work for the DOD, paid from
appropriated or nonappropriated funds under permanent or temporary
appointment."[^18] Contract employees are specifically excluded and are
defined as a separate category.[^19] Within this larger pool of civilian
employees are civilians that are emergency-essential (E-E) or who fill
E-E positions.[^20] The majority of DOD civilian employees in deployed
locations are designated in E-E positions.[^21]

It is Air Force policy to only deploy employees who have agreed to fill
these high-risk positions, if possible.[^22] Civilians applying for
employment in E-E positions sign a written agreement that they will
participate in emergency plans exercises, deploy when necessary in the
event of an emergency or crisis, and once deployed, will perform their
required duties.[^23] Incumbent civilians in positions that become
emergency-essential are encouraged to sign the agreement, but if they do
not, they may still be required to perform their duties until the
military mission allows their reassignment to non-E-E positions.[^24]
Reassignment of those refusing to sign the agreement should occur as
soon as reasonably practicable and consistent with the needs of the
military, and any tour extensions should be disapproved.[^25]

Volunteers are solicited to fill E-E positions because these personnel
are not evacuated along with other civilians during non-combatant
evacuation operations.[^26] Non-volunteers may be used in the event of
unforeseen contingencies.[^27]

B. Contractors

> In all countries engaged in war, experience has sooner or later
> pointed out that contracts with private men of substance and
> understanding are necessary for the subsistence covering, clothing,
> and moving of an Army.[^28]

Whether deploying for a humanitarian mission, peacemaking, peacekeeping,
or combat, U.S. Armed Forces deploy with significant numbers of DOD
contractor personnel.[^29] While armed forces have used the services of
contractors for centuries, the number and variety of contractor jobs has
changed dramatically over the last decade.[^30] During Desert Shield and
Desert Storm, approximately one out of every thirty-six deployed
personnel was a contractor.[^31] That number rose to one out of ten in
operations in the Balkans.[^32] In East Timor, contractors provided a
substantial portion of the U.S. support to the United Nations operation
International Forces East Timor (INTERFET). The contractor support
included medium and heavy-lift Russian helicopters, with their air and
maintenance crews, used to airlift thousands of IDPs, food, and
supplies.[^33] Similar use of contractor support personnel is only
expected to grow in the twenty-first century.[^34]

This rapid and significant growth of DOD dependence on contractor
support has several causes.[^35] A major factor was force limitations
pushing DOD to outsource and privatize. These force limitations were
caused by the dramatic post-Cold War reduction in the numbers of
uniformed military members coinciding with an equally dramatic increase
of deployment of military forces; mandatory limits on the size of
deployable forces imposed by the President, Congress or a host nation;
and recruiting and retention concerns that call for a reduction in
active duty deployment tempo.[^36] In addition to these manpower issues,
economic necessity has driven the government to outsourcing and
privatization to reduce funding as the frequency of extremely expensive
deployed operations continues to increase. Highly technical and complex
weaponry is flooding the armed forces, requiring contractors to be hired
to train military operators, maintain, and even operate the systems. In
addition to these factors, there has also been a change in the
military's policies on logistics. Contracting for in-theater logistic
support is now favored as a significant factor in reducing the
military's logistics tail, facilitating a rapidly mobile force needed to
keep pace with today's operations. The end result is the military
services contracting out tasks once performed only by military members,
and contractor employees performing those tasks closer to the
battlespace than ever before.[^37]

Contractors, depending upon the closeness of their affiliation with an
armed force, will have special protections under the Law of Armed
Conflict. The Geneva Convention Relative to the Treatment of Prisoners
of War lists "supply contractors" and "civilian members of military
aircraft crews" as examples of contractors who qualify as "persons
accompanying the armed forces without actually being members
thereof."[^38] As with civilian employees, qualifying contractors may be
protected upon capture with prisoner of war status. However, not all
contractor personnel will qualify. [^39]

U.S. doctrine divides contractors into three general categories: systems
support, external theater support, and theater support contractors.[^40]
Systems support contractors "support specific systems throughout their
system's life cycle (including spare parts and maintenance) across the
range of military operations" such as weapons, command and control, or
communications systems.[^41] Service component logistic commands or
program managers award these prearranged contracts.[^42] For example,
the F-117 and the Predator Unmanned Aerial Vehicle are heavily dependent
upon contractor maintenance. At the extreme, contractors will
exclusively maintain the TOW Improved Target Acquisition System
(ITAS).[^43]

External theater support contractors may be either U.S. or third country
vendors.[^44] Their contracts are mostly arranged prior to a deployment
and are "awarded under the command and procurement authority of
supporting headquarters outside of the theater."[^45] External theater
support contracts may be "awarded or modified during the missions based
on the commander's needs" and include contracts such as the Civil
Reserve Air Fleet (CRAF), Logistics Civil Augmentation Plan (LOGCAP),
Air Force Civil Augmentation Plan (AFCAP), and Naval Facilities
Engineering Command (NAVFAC) contracts.[^46]

Theater support contractors are personnel employed under contracts
awarded and administered by "\[c\]ontracting personnel with the deployed
force" and the contractors work "pursuant to contracts arranged within
the mission area, or prearranged through the \[host nation\] and/or
regional businesses and vendors."[^47] For example, local vendors'
contracts to perform laundry services during a deployment fit into this
category.

DOD also classifies some contractor services as "essential," a
designation independent of, although overlapping with, the three
doctrinal classifications. Essential contractor services are:

> \[P\]rovided by a firm or an individual under contract to the
> Department of Defense to support vital systems including ship's (sic)
> owned, leased, or operated in support of military missions or roles at
> sea and associated support activities including installation,
> garrison, and base support serviced (sic) considered of utmost
> importance to the U.S. mobilization and wartime mission. ... Those
> services are essential because of the following:
>
> > DoD Components may not have military or DoD civilian employees to
> > perform these services immediately.
>
> > The effectiveness of defense systems or operations may be seriously
> > impaired, and interruption is unacceptable when those services are
> > not available immediately.[^48]

Although these distinctions may not be useful for international legal
issues, doctrinal distinctions between systems support, external theater
support, and theater support are useful for examining issues related to
domestic law and DOD and service regulations. For example, it is more
important to look to internationally established requirements for
determining who has Prisoner of War or POW status, rather than looking
at the groups of contractors as set forth by joint doctrine.[^49]
However, essential contractor service designation is important for
planning purposes and, since DOD requires these contractors be provided
identity cards, it affects international legal issues such as status
upon capture.

C. Non-Affiliated Civilians

> The law of war recognizes that the purpose of the military in wartime
> is killing people and breaking things.
>
> \~ Legal Advisor to the Chairman, JCS, 1972
>
> It seems to me that killing people and breaking things has given way
> to feeding people and fixing things.
>
> \~ Legal Advisor to the Chairman, JCS, 1993[^50]

Non-affiliated civilians are comprised of a broad variety of
subcategories.[^51] This article will focus on the media,
non-governmental organizations or NGOs, private voluntary organizations
or PVOs, intergovernmental organizations or IGOs, refugees, stateless
persons, and internally displaced persons or IDPs.

*1. Media*

> Yet so greedy are the people at large for war news that it is doubtful
> that any army commander can exclude all reporters without bringing
> down on himself a clamor that may imperil his own safety.[^52]

Commanders should expect journalists will be in the commanders' assigned
areas of responsibility, and that such encounters will require "direct
command attention."[^53] The numbers of media personnel encountered by
commanders in most deployed operations has grown exponentially. While
fewer than 30 journalists entered Normandy, France, on June 6, 1944,
with the invasion force,[^54] more than 1,600 media representatives from
nations throughout the world massed in Saudi Arabia, a society formerly
closed to media, during Desert Storm,[^55] and more than 1,700
journalists operated in the U.S. sector of Bosnia in 1996.[^56]
Reporters illuminated the forced night amphibious landing of U.S. forces
in Operation Restore Hope, and relayed continuous non-stop live coverage
on Operation Uphold Democracy.[^57] Combat operations are not the only
military missions that attract large media interest; approximately 1,500
journalists reported on relief operations following Hurricane Andrew
when it went aground in Florida in 1992.[^58]

Without question, the U.S. Armed Forces are "accountable and responsible
to the public for performing its mission of national defense,"[^59] and
the news media is the primary means of relating information about the
military to the public.[^60] The numbers of media personnel interested
in and reporting on military operations are significant in this
information age. The reality of the world in which judge advocates find
themselves today is such that they must expect and plan for encountering
large numbers of news media representatives in all phases of
deployment---including actual hostilities. For this purpose, it is
important to be able to distinguish between very similar terms:
journalists, war correspondents, and freelance journalists.

The civilian media consists of members of the profession of
"journalists."[^61] Their line of work frequently puts them in close
proximity with hostilities, at times equivalent to that of members of an
armed force.[^62] In the language of Additional Protocol I to the Geneva
Conventions, and Relating to the Protection of Victims of International
Armed Conflicts, (Additional Protocol I), journalists are often "engaged
in dangerous professional missions in areas of armed conflict."[^63] The
term journalist is interpreted broadly and in accordance with its
everyday meaning[^64] and it includes "any corespondent, reporter,
photographer, and their technical film, radio and television assistants
who are ordinarily engaged in any of these activities as their principal
occupation."[^65] It includes DOD civilian members of military news
organizations,[^66] but does not, however, include any member of the
armed forces, such as military members assigned to the Armed Forces
Radio and Television Service.[^67]

A separate, but similar category of media representatives, includes war
correspondents and freelance journalists.[^68] "Media member" and
"journalist" are often used interchangeably for both war correspondent
and freelance journalist but it is important to distinguish between the
two.[^69] Some view the term "war correspondent" as reflecting a class
of reporters that existed only in days of old.[^70] However, modern
distinctions still exist and are important.[^71] Like civilian employees
of an armed force, war correspondents are media members who "accompany
the armed forces without actually being members thereof."[^72] To
qualify as a war correspondent, the media member cannot be a uniformed
member of the armed forces[^73] and yet must receive "authorization,
from the armed forces which they accompany, who shall provide them for
that purpose with an identity card."[^74] In other words, an armed force
accredits war correspondents.[^75] Freelance journalists, on the other
hand, are not accredited by an armed force and fall into a different
status if captured. Both may, however, be issued identification cards by
a military to help clarify their status as discussed below.

Defining the exact role of a media member is further complicated for
U.S. commanders because Joint Publication 3-61 groups both U.S.
servicemembers and DOD civilian employees under the category "military
journalist" and all other media into "news media representatives."[^76]
These characterizations do not allow appropriate identification of
important status issues, and therefore this article has not adopted
these terms.

*2. Non-governmental, Private Voluntary, and*

*Intergovernmental Organizations*

> By melding the capabilities of the military and the NGOs and PVOs you
> have developed a force multiplier.[^77]

NGOs and PVOs annually contribute between nine and ten billion dollars
to over two hundred fifty million needy people and host nations.[^78]
Particularly in military operations other than war, NGOs and PVOs
regularly enter high-threat locations, arriving on scene before the
military and remaining after the military departs.[^79] "A \[joint task
force\] or multinational force may encounter scores of NGOs and PVOs in
a \[joint operations area\]."[^80] Their numbers have exploded in recent
years.[^81] While NGOs were first recognized in Article 71 of the U.N.
Charter,[^82] their numbers have only made them a significant force on
the international scene in recent decades, skyrocketing from 200
registered with the U.N. Department of Public Information in 1968 to
well over 1,500 registered in the year 2000.[^83]

The dramatic rise in the numbers of NGOs and PVOs results in their
increased presence in areas overlapping U.S. forces. Corresponding
challenges exist, such as differences in cultures and planning
processes.[^84] Operation Restore Hope revealed that unless good
relations between the Joint Task Force and NGO and PVO personnel are
established, accomplishment of the mission could be jeopardized.[^85]

The missions, size, expertise, experience, professionalism and
willingness of NGOs and PVOs to interact with the U.S. military vary
widely among these organizations.[^86] Commanders and judge advocates
must recognize that NGOs and PVOs may have valid missions that may
supplement or complicate military operations, and that they are "major
players at the interagency table."[^87] "A climate of cooperation should
be the goal" in circumstances where the military is in close contact
with these organizations, thus enabling the organizations to carry out
mutually supportable activities and allowing the armed forces to be
successful in their assigned mission.[^88] Particularly during military
operations other than war, commanders "should be prepared to coordinate
civilian and military actions."[^89] Joint doctrine recognizes this
imperative by establishing a variety of mechanisms to ensure unity of
effort through communication and coordination.

The U.N. defines NGOs broadly as "any non-profit, voluntary citizens\'
group which is organized on a local, national or international
level."[^90] It recognizes that they are "task-oriented and driven by
people with a common interest," as they "perform a variety of services
and humanitarian functions" including "bring\[ing\] citizens\' concerns
to Governments, monitor\[ing\] policies and encourag\[ing\] political
participation at the community level...provid\[ing\] analysis and
expertise, serv\[ing\] as early warning mechanisms and help\[ing\]
monitor and implement international agreement."[^91] Other terms, such
as "relief organizations" and "humanitarian organizations," are also
used in the international lexicon.[^92] DOD defines a non-governmental
organization more narrowly, describing it as a "transnational
\[nonprofit\] organization of private citizens that maintain a
consultative status with the Economic and Social Council of the U.N.
\[They\] may be professional associations, foundations, multinational
businesses, or simply groups with a common interest in humanitarian
assistance activities (development and relief)."[^93] They include
"international humanitarian organizations" such as the International
Committee for the Red Cross, Amnesty International, National Red Cross
and Red Crescent Societies.[^94]

PVOs are very similar to NGOs and are defined as "private, nonprofit
humanitarian assistance organization involved in development and relief
activities . . . normally U.S.-based.[^95] Examples include the American
Red Cross, Lutheran World Relief, and World Concern.[^96] The terms NGOs
and PVOs are often used synonymously and are so used in this article.

Neither U.S. governmental organizations nor the international community
formally defines intergovernmental organizations or IGOs.[^97] However,
the U.S. and U.N., as well as international legal scholars, commonly
refer to the term IGO in documents and discussions.[^98] IGOs are
international bodies that are governmental in nature and usually involve
humanitarian and relief operations, and may be involved in unification
of nations and enforcement of international law. Examples of IGOs
include the U.N., Organization for African Unity, Organization for
Security and Cooperation in Europe, International Institute for the
Unification of Private International Law, and Organization of American
States.[^99] IGO personnel are usually addressed in this article in
conjunction with NGOs and PVOs. For example, U.N. and Associated Persons
are distinguished when discussing what happens when they come under
control of the enemy.

*3. Refugees, Stateless Persons, and Internally Displaced Persons*

> []{.mark}
>
> In several of the recent conflicts, \"mass population displacements
> have not been simply a consequence of armed conflict, but have also
> been the explicit objective of the warring parties.\" Thus,
> \"civilians are often used as weapons and targets in warfare, and
> large-scale displacements comprise a political strategy in claiming
> control over territory.\"[^100]

[]{.mark}

The U.N. High Commissioner for Refugees (UNHCR) is primarily responsible
for protecting and assisting refugees, but commanders and their judge
advocates will address a variety of issues caused by their presence in
an area of operations. Time and again, the U.S. has called upon its
military instrument of power to protect threats to our interests related
to refugees, stateless persons, and internally displaced persons. U.S.
involvement in Operation Provide Comfort was related to Kurdish
refugees; Haitian migrants and refugees triggered Operation Restore
Democracy; and Operation Allied Force was designed, in part, to halt
displacement of the Kosovo population. Judge advocates should expect to
be confronted with issues relating to refugees and displaced persons in
both wartime and other than war situations.

The term "refugee" is well defined in international documents and laws.
Additionally, some states define refugees differently than the
definitions found in international law. When definitions conflict,
international law requires the broadest definition be applied.[^101] The
U.S.'s approach to refugees is expansive when compared to other
states.[^102] Broadly, the U.S. views a refugee as "any person who does
not in fact enjoy the protection of a government"[^103] and includes
stateless persons.[^104] It also includes nationals of the opposing
state who left their own country because they believed they were in
danger if they remained.[^105]

More specific definitions are available in international documents.
According to the primary treaty in this area, the U.N.'s 1951 Convention
Relating to the Status of Refugees (U.N. Refugee Convention), the term
\"refugee\" applies to any person who:

> owing to well-founded fear of being persecuted for reasons of race,
> religion, nationality, membership of a particular social group or
> political opinion, is outside the country of his nationality and is
> unable, or owing to such fear, is unwilling to avail himself of the
> protection of that country; or who, not having a nationality and being
> outside the country of his former habitual residence as a result of
> such events, is unable, or owing to such fear, is unwilling to return
> to it.[^106]

Beyond the international agreements, additional regional agreements also
exist. For example, the Organization of African Unity or OAU adopted the
above definition and then expanded it to include:

> Every person who, owing to external aggression, occupation, foreign
> domination or events seriously disturbing public order in either part
> or the whole of his country or origin or nationality, is compelled to
> leave his place of habitual residence in order to seek refuge in
> another place outside his country of origin or nationality.[^107]

The mandate of the UNHCR broadens these definitions even further and
protects all "persons fleeing from persecution, the threat of
persecution," as well as "those fleeing from armed conflict or
disturbances."[^108] Parties to the U.N. Refugee Convention and
additional international agreements, such as the OAU Refugee Convention,
are required to cooperate with the UNHCR.[^109] As a result, "if a State
recognizes the competence of the UNHCR with regard to certain persons
before the beginning of hostilities ... \[the refugee\] will benefit
from Article 73 \[of Additional Protocol I\] independently of the fact
whether or not they were considered refugees under a relevant
international instrument."[^110]

The next persons to be discussed in this area are stateless persons.
Stateless persons are individuals who "are not nationals of any State
according to the law of individual States and individuals with an
ineffective nationality or those who cannot establish their
nationality."[^111] An individual can be "stateless" due to legal rules
or factual circumstances, primarily due to "lack of harmonization of
rules of private international law, having stateless parents at birth,
and disappearance of the State of origin."[^112] Most of the laws
applicable to refugees overlap with stateless persons, although for
states who have ratified or acceded to the treaties on stateless
persons, additional obligations may exist.

The next category of persons to be defined is internally displaced
persons or IDPs. The International Committee of the Red Cross (ICRC) has
purposefully declined to define IDPs.[^113] Internally displaced persons
or IDPs are part of the civilian population of the nation to which they
belong, and therefore protected by the international and state laws that
protect the civilian population in general. However, IDPs have
additional challenges beyond that of the rest of the civilian
population. IDPs have fled their homes, usually without their personal
goods, and are similar to refugees.[^114] IDPs flee due to any of a
variety of reasons, which include internal strife, conflict, or even a
natural disaster. Some of the highest mortality rates ever recorded in
humanitarian emergencies have involved IDPs.[^115] Problems with IDPs
have grown dramatically during the 1990s, so much so that a U.S.
Secretary-General's Special Representative on IDPs was appointed in 1992
and Guiding Principles on Internal Displacement were prepared by the
U.N. Commission on Human Rights and reinforced by a resolution of the
U.N. General Assembly.[^116] Examples of IDPs include the displaced
ethnic Albanian Kosovars who did not flee to Albania, and the Tutsi in
Rwanda who fled from the Hutu ethnic cleansing. Students of world news
will recall the recent military intervention in Albania, partially in
response to the refugee and IDP problems experienced as a result of Serb
ethnic cleansing.[^117] Judge advocates should not be surprised to find
themselves handling IDP problems in the future.

III\. DEPLOYMENT ISSUES

> It is well known that in modern armies the numbers of fighting
> personnel has a tendency to decrease whereas the various support units
> including civilians are increasing in strength.[^118]

Commanders and their judge advocates encounter a range of issues across
the deployment spectrum as they work to create a cohesive total force
made up of military, civilian employees, and contractor personnel.
Central to all other issues is the question of permissible duties a
civilian may perform for an armed force. This issue is referred to as
"nexus to combat" in this section. The line between permissible combat
support roles and impermissible military combat roles is also summarily
examined below.[^119] Closer analysis of associated issues such as
arming civilians, wear of uniforms by civilians, and civilian
identification cards is required.

The U.S. is moving closer and closer to the gray line between
permissible and impermissible civilian functional and physical proximity
to conflict. We must carefully consider the significant and far-reaching
consequences of employing civilians directly in military operations. The
degree of authority a commander holds over these civilians is
significantly different than that held over combatants. Commanders are
accustomed to issuing orders and having unity of command over their
assigned and attached personnel. However, this article reveals that such
will not be the case for civilians. A commander's ability is limited
even to ensure civilians perform those tasks they may lawfully be
assigned. This article examines the limitations and risks involved with
providing uniforms and weapons to each category of civilians, and the
possibility of turning civilian employees and contractors into unlawful
combatants. Non-affiliated persons may not take direct part in or
support hostilities or military operations, and thus their functional
proximity to an armed force is not discussed in depth. However, they may
be endangered by their physical proximity to hostilities so protections
that may be afforded to them are mentioned.

Judge advocates and civilians must appreciate the risks associated with
physical proximity to enemy forces. Accordingly, this article examines
the issue of protections and legal status civilians receive if they fall
into enemy hands. Our examination reveals that most, but not all,
civilians employed by and contracted with DOD will be treated as POWs
upon capture, but that is not always the case. Non-affiliated persons
will not be entitled to POW status unless they are war corespondents.
NGOs, PVOs, refugees, stateless persons and IDPs are generally protected
as civilians, although some additional protections will be identified
and discussed. The importance of providing identification cards to
civilians to trigger POW protection is highlighted.

A supported commander is also tasked with determining the degree of
restrictions placed on some categories of civilians by host nation laws.
This article, therefore, explores the myriad of definitions and
protections Status of Forces Agreements afford civilian employees and
contractors. Other issues addressed include foreign criminal
jurisdiction, force protection responsibilities, and medical and legal
support. The judge advocate must be prepared to advise his commander on
those legal issues surrounding civilians in the deployed area of
operations.

A. Authorized Nexus to Combat Operations

> The citizen must be a citizen and not a soldier . . . war law has a
> short shrift for the non-combatant who violates its principles by
> taking up arms.[^120]

Traditionally, the accepted practice of employment of civilians was
simply stated: "the closer the function came to the sound of battle, the
greater the need to have soldiers perform the function because of the
greater need for discipline and control."[^121] This began to change
during the Vietnam War, and has continued exponentially since that
time.[^122] "Never has there been such a reliance on nonmilitary members
to accomplish tasks directly affecting the tactical successes of an
engagement."[^123] As a result, government employees and contractors are
in closer physical proximity to the battlespace than ever before, and in
roles functionally close to combatants; many of these roles formerly
exclusively held by uniformed members of the armed forces.[^124]
Civilians perform actual mission tasks, such as airlift of IDPs by
contracted flight crews on contracted helicopters; maintaining vital
weapons systems such as Joint Surveillance Target Attack Radar System
(JSTARS), Patriot, and Predator in the field and air even during combat
operations; providing support, even within minutes of the conclusion of
combat operations; and operating and managing intelligence and
information systems.[^125] It is vital that civilians do not cross the
line between lawful non-combatant support and unlawful participation in
hostilities. To more clearly discern that line, we must focus our
analysis on the international law of armed conflict.

The U.S. is a world leader in the creation of and adherence to the law
of armed conflict or LOAC, rules that have evolved to govern the conduct
of war.[^126] LOAC regulates relations between belligerent governments
and persons associated with the belligerents' armed forces during
hostilities.[^127] LOAC also seeks to regulate relations between the
civilian populations of each belligerent.[^128] LOAC only began to
infuse a protection for civilians within the battlespace in the latter
half of the twentieth century.[^129] It attempts to divide combatants
from non-combatants, protecting civilians from the horrors of war, and
easing the return to a peaceable end-state.[^130] The political pressure
to protect civilians is growing rather than diminishing, as evidenced in
the justification for U.S. intervention in operations such as Allied
Force and Restore Hope, as well as expansions in international
law.[^131]

It is not necessary that Congress declare war for LOAC to apply.[^132]
LOAC applies during armed conflicts, although much of it is not binding
under international law during intra-state or \"civil\" wars or conflict
between non-state actors, as we frequently encounter in situations other
than war. However, the U.S. has adopted the policy of complying with
LOAC beyond international law's requirements, instructing its armed
forces to: "comply with the law of war during all armed conflicts . . .
\[and\] unless otherwise directed by competent authorities, will comply
with the principles and spirit of the law of war during all other
operations."[^133]

Despite the U.S.'s voluntary application of LOAC to a broad range of
operations, many other nations have not followed suit. Although some
protections of civilians supporting an armed force do exist, they are
not broad enough to address the variety of issues in inter-state
conflict, much less MOOTW.

*1. Combatants and Non-combatants*

Personnel involved in an armed conflict are generally classified as
either combatants or non-combatants.[^134] This distinction is one of
the most important in international law relating to armed conflict and
determines an individual's legal status.[^135] In most instances the
differences will be clear.[^136] However, technology, outsourcing, and
privatization are blurring the line between the two groups, complicating
the question of civilian nexus to combat.

Most uniformed members of an armed force are combatants, regardless of
whether the uniformed member is with or without a combat task.[^137] To
qualify as a lawful combatant, the individual must: (1) be under the
command of a person responsible for his subordinates and subject to an
internal disciplinary system; (2) have a fixed and distinctive emblem
recognizable at a distance; (3) carry arms openly; and (4) conduct
operations in accordance with the laws and customs of war.[^138]
Combatants "have the right to participate directly in hostilities" and,
when captured, are afforded POW status.[^139] They are immune under a
state's internal national law for their combatant acts as long as they
comply with LOAC.[^140] Non-combatants are, by negative definition,
those who are not members of an armed force, as well as a few specific
members of an armed force such as medical personnel and chaplains.[^141]

#### *a. Civilian Employees and Contractors*

Non-uniformed employees of an armed force and contractor personnel of an
armed force are non-combatant civilians and must never take part in
hostilities. "In all instances, contractor employees cannot lawfully
perform military functions and should not be working in scenarios that
involve military combat operations where they might be conceived as
combatants."[^142] Non-combatants working physically close to
hostilities incur a risk of being made an object of attack.
Non-combatants who perform a military function incur the risk of being
an unlawful combatant.

Being close to the battlespace entails significant risks for civilians
such as capture and being made the target of attack. Generally,
civilians may not be made the object of military attack.[^143] This is
based upon the well recognized LOAC principle of discrimination
requiring attacks be focused only against military objectives.[^144]
\"Military objectives\" are \"those objects which by their nature,
location, purpose or use make an effective contribution to military
action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a
definite military advantage.\"[^145] Combatants, unless *hors de
combat,*[^146] are lawful military targets and may be directly targeted
by a party to the hostilities. As such, their location in relationship
to combat is irrelevant in law, although in fact they are less likely to
be targeted if removed from the immediate vicinity of combat.[^147]

Should civilians place themselves in close proximity to military
objectives, they are responsible for the associated risk of attack
directed against the military target. Civilian presence at the site of a
military target "provides no immunity for legitimate military targets in
the vicinity.\"[^148] Simply put, civilians can become "collateral
damage." Additional Protocol I requires, to the extent feasible, parties
to a conflict remove civilians from the areas of military
objectives.[^149] Arguably, employing civilians in physical proximity to
hostilities, as during Operation Desert Storm where civilian contractors
served on JSTARS during combat missions, runs counter to this principle.
However, such a position puts Additional Protocol I in conflict with
article 4A of Geneva Convention III, which specifically recognizes
placing civilians in the battlespace, including as aircrew members
provided with POW protection when captured.[^150]

Functional proximity of civilians to roles appropriately reserved for
uniformed armed forces is a more significant issue for judge advocates
and civilians alike, although physical proximity is one indicator of the
nature of the function in question. Civilians generally are not
authorized to take *direct* part in hostilities.[^151] Civilians who
take direct part in hostilities are "unlawful combatants" and "regarded
as marauders or bandits and may be tried as such if captured by the
adverse party."[^152] In any form of armed conflict, unlawful combatants
lose the protections afforded their civilian status, although not the
status itself, and may be resisted by a party to the conflict by all
lawful means of warfare for combating enemy armed forces.[^153] Thus, if
a civilian employee or contractor, or other civilian discussed in the
substance of this article, performs a function reserved for combatants,
such as taking up arms and firing at the opposition, he forfeits his
protection from being made the object of direct attack.

As such, discerning what "direct part in hostilities" entails becomes
very important. This article will touch on the topic but not thoroughly
explore the answer, leaving that task for a more concentrated law review
article. The definition of "direct part" is not settled under
international law, as the U.S. Army acknowledges; "taking part in
hostilities has not been clearly defined in the law of war, but
generally is not regarded as limited to civilians who engage in actual
fighting."[^154] Generally, taking direct part in hostilities entails
"acts of war which by their nature or purpose are likely to cause actual
harm to the personnel and equipment of the enemy armed forces."[^155]
Civilians who take direct part in hostilities are those who take up
arms, or in some other fashion attempt to capture, injure or kill enemy
forces, or damage or destroy enemy property.[^156] Some argue direct
participation also includes "functioning as a guard, lookout, or
intelligence agent for an armed force."[^157]

Commentators broadly defining "direct act" argue "\[p\]ersons who
participate in the use of a weapon or a weapon-system in an
indispensable function may not under any circumstances be designated as
non-combatants by national decision."[^158] This expansion of the
definition goes too far. If these views are adopted, many civilian
employees and contractors are already directly participating in
hostilities and are subject to being made the target of intentional
attack. At the present time, direct participation in hostilities must be
judged on a case-by-case basis.[^159]

Customary international law does not recognize the ability of an
unlawful combatant to regain the protections of his civilian status.
However, a controversial provision of Additional Protocol I allows the
civilian to regain his protection from attack when he ceases direct
participation in hostilities.[^160] Now, exactly when a civilian ceases
his direct participations in hostilities is unclear. If "direct part" in
hostilities is an affirmative behavior akin to taking up arms, such as
sniping at military members, such a civilian should not regain his
non-combatant protection. Otherwise, a civilian who is a valid military
target while he is planning or executing an attack becomes immune from
attack once he is not involved in planning another attack, even if he
will become involved in the conflict later.[^161] Great inequities could
result. A serviceman would be subject to a charge of a violation of LOAC
should he kill a civilian while he is out of the hostilities, even if
the civilian had recently taken a direct part in hostilities.

Ground combat troops particularly are left in an untenable position when
making split-second decisions such as when they can fire at a civilian
sniper or other hostile civilian.[^162] Airmen who have been involved in
a military operation short of war may recognize the scenario as
analogous to the need for a hostile act and/or hostile intent prior to
engagement for self-defense. For example, an airman over flying an area
where the opposition has not been declared hostile may still engage in
self-defense. Applying this policy, he is fired upon by anti-aircraft
artillery and feels he must act in self-defense, he may take offensive
action against the site. However, without other rules of engagement
authorization, he may not then make another pass at the site simply to
strike it. This is true even if he knows he will be flying in the area
later in the week and there is a chance gunfire may be directed his way
on that occasion as well.[^163] This issue is unsettled in international
law for those not a signatory to Additional Protocol I.

While it is clear that civilians taking direct part in hostilities are
unlawful combatants and subject to attack, it is not so clear under
international law whether civilians who perform functions classified as
"direct support" are unlawful combatants and even if not, whether they
may be directly targeted.[^164] Certainly, civilians who provide "direct
support of the enemy's war-fighting or war-sustaining effort are at risk
of incidental injury from attack."[^165] Some legal scholars argue that
civilians who directly support the war effort through combatant-like
activities such as logistical support for combat forces, or intelligence
gathering, lose their civilian protections and become lawful
targets.[^166] Others criticize such arguments as amounting to
improperly creating a quasi-combatant status that is job function
dependent.[^167] Instead, these commentators assert civilians in these
supporting roles do not lose their civilian status protection.[^168]

Our allied and coalition partners who have ratified Additional Protocol
I may not directly target supporting civilians, except in self-defense.
Additional Protocol I explicitly distinguishes support of the war effort
from direct participation in hostilities when defining what activities
make a civilian subject to direct attack.[^169] The commentary to
Additional Protocol I recognized modern states involve a multitude of
activities that directly or indirectly contribute to the war effort and
define "making a contribution to the war effort" with the examples of
participating in military transportation, weapons production, or other
logistical support for combat forces.[^170] More than this level of
activity is required to move a civilian to improperly participating in
hostilities and becoming a lawful target.[^171] The U.S. did not object
to these provisions of Additional Protocol I although it did object to
other provisions**.**[^172]

Joint doctrine speaks generally to this issue, stating: "In all
instances, contractor employees cannot lawfully perform military
functions and should not be working in scenarios that involve military
combat operations where they might be conceived as combatants."[^173] It
asserts that contractors are neither combatants nor non-combatants,
thereby creating what otherwise does not exist in international law: a
third category of civilians.[^174] The 1907 Hague Convention No. IV
Respecting the Laws and Customs of War on Land, commonly called Hague
IV, for example, states, "\[T\]he armed forces of the belligerent
parties may consist of combatants and non-combatants."[^175] There is no
mention in the Hague or Geneva Conventions or Additional Protocols of
"quasi-combatants." In fact, the "quasi-combatant" approach was
specifically rejected during the drafting of Additional Protocol
I.[^176]

Each service interprets international law and joint doctrine
differently. The Air Force has published a pamphlet wherein the position
is taken that civilians are non-combatants (rather than
quasi-combatants), but those performing \"duties directly supporting
military operations may be subject to direct, intentional attack."[^177]
A 2001 Air Force Policy Memorandum may lead to the conclusion that
civilians providing support in close proximity may also be
attacked.[^178] These statements may be intended to represent the
reality of the risk encountered by civilians near hostilities rather
than a position on international law, but the documents do not clarify
the issue further. If the 2001 memorandum represents an interpretation
of international law, it shifts the analysis from functional proximity
to combat, to physical proximity to combat. The Army has taken a
different stance on the issue, apparently concluding "war-essential
civilian employees working on a U.S. military base during time of
\[international armed conflict\] would be subject to direct
attack."[^179] A prominent lawyer in The Army Judge Advocate General's
Office endorses targeting civilians directly supporting the combatant by
emphasizing the criticality of the civilian support to the
mission.[^180] The Judge Advocate General School of the Army recently
adopted this view teaching "the contract technical advisor that spends
each day working with members of an armed force to make a weapon system
more effective ... is integrated with \[the\] force, \[and taking an\]
active role in hostilities, \[and therefore\] may be targeted."[^181]
The Navy has taken yet another position. The Navy describes direct
support as "support by civilians to those actually participating in
battle or directly supporting battle action, and military work done by
civilians in the midst of an ongoing engagement" and holds they are not
subject to direct attack although they assume the risk of collateral
damage because of their physical proximity to valid military
targets.[^182]

Consider this ground-centric version of the scenario commonly discussed:
If a military member is driving a truck filled with supplies for combat,
such as ammunition, while his state is involved in an international
armed conflict, that military member is subject to being made the target
of attack by the opposing state.[^183] Once the military member goes
back to the barracks that evening, or his home in the civilian
community, he is still individually subject to being made the object of
attack. What then, if a civilian is driving the very same truck?
Certainly, the truck itself is a military target and may be destroyed.
The civilian driver would be permissible collateral damage. The debate
is about whether the civilian himself is a valid object of attack. If
one decides the civilian is subject to direct, intentional attack as an
individual when involved in this level of activity, what may happen when
he goes home for the night to his civilian community? [^184] The same
scenario can be applied to an airman's perspective when questioning
whether the civilian aircrew member can be intentionally attacked when
he stops performing support duties and goes home for the evening.

It is very dangerous for the U.S. to assert that civilians who directly
support the war effort may be targeted. With U.S. political
sensitivities to civilian casualties, it is unlikely that the U.S. would
target an enemy civilian intentionally. At the same time, the U.S. is
increasingly vulnerable to such targeting due to the numbers of
civilians performing such functions.

A variety of questions need to be answered: What is "direct support" and
"direct participation?" Are persons who accompany the armed forces
without being members thereof "quasi-combatants?" When can each group be
intentionally targeted?[^185] As the situation exists today, civilian
employees and contractors in deployed locations may be victims of
incidental injury because of their proximity to military targets. They
may also, depending upon the definition of "direct part" and "direct
support" be the direct target of attack, whether near a military target
or not. More severe consequences exist if these civilians have crossed
the line into unlawful combatant status.

Unlawful combatants may be criminally prosecuted by the capturing state
for their participation in hostilities, even when that participation
would otherwise be lawful for a combatant.[^186] Civilians may also be
subject to prosecution by the international community for violations of
LOAC, more commonly termed "war crimes," if they violate the laws of
war.[^187] The future risk of being tried by an international tribunal
increased significantly in 1998 with adoption of the Rome Statute of the
International Criminal Court (ICC).[^188] When ratified by sixty states,
the ICC will have authority to prosecute both military members and
civilians for war crimes, genocide, and crimes against humanity.
Criminal jurisdiction will extend even to citizens of states that are
not party to the treaty for activities they have conducted in a state
that is a party to the treaty.[^189] Judges from the nations of the
world will decide the fate of those before the court. Unlike the
influence the U.S. has on the U.N. Security Council, the U.S. will not
be able to veto an ICC ruling. Accordingly, civilian employees and
contractors who become unlawful combatants may be subject to criminal
prosecution by an international court and under rules of evidence and
procedure fundamentally different than those of the U.S. constitutional
criminal system.

These issues extend beyond what happens to the individual. A state and
members of an armed force, such as commanders, have an affirmative duty
to prevent civilian non-combatants from participating in
hostilities.[^190] Members of the U.S. Armed Forces must comprehend,
observe and enforce LOAC.[^191] Commanders are charged with training
their personnel in LOAC, reporting violations, and holding violators
accountable.[^192] Commanders who authorize or permit a civilian to
actively participate in hostilities could become responsible for the
civilian's acts and may be liable under international law of armed
conflict, as well as U.S. law.[^193]

#### *b. Non-Affiliated Persons*

Simply stated, the media, NGOs, PVOs, refugees, and other non-affiliated
persons may not take up arms and participate in combat operations. This
group is comprised of non-combatant civilians who lose the protections
of their civilian status should they directly participate in
hostilities, as discussed above. Although they may be physically near
hostilities they are not functionally close to being combatants and
therefore the analysis is much more straightforward. Because of the
physical proximity to hostilities, these civilians experience risk. For
example, a journalist who places himself close to a military unit or
target would not lose his protected status as a civilian, but may lose
the reality of his status as a civilian because he is near a military
unit or target, both legitimate objects of attack.[^194] If he wears
clothes similar to the military uniform and travels in the midst of a
military unit, the opposition soldier "cannot reasonably be asked to
spare an individual whom he cannot identify as a journalist."[^195] A
brief additional comment should be made about the media. Some enumerated
specific activities by the media, even ones that may be construed as
direct participation in hostilities if conducted by another civilian, do
not propel the media member into unlawful combatant status. When a media
member is performing tasks related to his position as a journalist, such
as photographing enemy positions, taking notes on operations, and
transmitting that information, they have not become spies or been deemed
otherwise direct participants in hostilities.[^196]

*2. Command, Control and Influence of Civilians*

> Sound logistics forms the foundation for the development of strategic
> flexibility and mobility. If such flexibility is to be exercised and
> exploited, military command must have adequate control of its
> logistics support.[^197]

When discussing combatant versus non-combatant status earlier, two
essential characteristics of combatants were mentioned**:** combatants
are under the command of a person responsible for his subordinates and
subject to an internal disciplinary system. Uniformed military members
are controlled, directed, organized, coordinated, and employed by a
commander through a chain of command. Command is "authority that a
commander in the Armed Forces lawfully exercises over subordinates by
virtue of rank or assignment."[^198] Chain of command is "the succession
of commanding officers from a superior to a subordinate through which
command is exercised."[^199] Should a subordinate fail to obey the
lawful orders of a commander above him, he is subject to criminal
punishment in accordance with the Uniform Code of Military Justice
(UCMJ).[^200]

This same command does not exist over civilian employees, contractors,
or non-affiliated persons. Civilians are not subject to the UCMJ except
in time of declared war.[^201] This is even during events the military
and international law would view as a major-theater war, but which
Congress has not declared as war.[^202]

#### *a. Civilian Employees*

Commanders have *control* over civilian employees. The Unified Combatant
Commander/Component Commander exercises control over deployed civilian
employees through the deployed on-site supervisor and the attached or
assigned supervisory chain.[^203] The supervisor assigns tasks, reviews
performance and initiates disciplinary action.[^204] The deployed
supervisor may impose reasonable rules, directives, policies and orders
based upon mission necessity, safety, and unit cohesion.[^205]
Emergency-Essential or E-E civilian employees who have signed a DD Form
2365 have agreed to perform their assigned duties in the event of a
crisis situation or war until relieved by the proper authorities.[^206]
Personnel filling E-E positions who have declined to sign the agreement
may still be required to perform their duties until the needs of the
military mission allow their detail or reassignment to non-E-E
positions.[^207]

Commanders can take administrative action when civilians fail to perform
or are otherwise injure the mission. The civilians can be barred from
base, or have their benefits limited or terminated.[^208] Should an E-E
civilian refuse to perform his duties during an emergency, he is subject
to administrative penalties in accordance with labor laws, ranging from
oral admonition to removal from federal service.[^209] The Air Force
normally returns the employee to his home station for suspension or
removal action.[^210] There is an extensive body of law governing
federal employee labor issues that must be followed in the event a
civilian either commits misconduct or fails to perform his duties
satisfactorily.[^211]

#### *b. Contractors*

Control of contractor support personnel was a primary challenge for
commanders during Operation Desert Storm.[^212] These relationships
"often left commanders scratching their heads" in Operation Uphold
Democracy,[^213] and they continue to challenge commanders and their
judge advocates today. A commander has much less control over
contractors than he does over civilian employees. A contractor cannot be
"ordered" to do anything, even the services for which he has contracted.
The commander does not even directly supervise him.[^214] In fact,
"\[t\]he warfighter's link to the contractor is through the contracting
officer or the contracting officer's representative."[^215]

The rights, duties and obligations of the government and the contractor
are set forth in the terms and conditions of the contract.[^216] Mission
essential services should be designated as such in the contract
statement of work.[^217] The key performance terms must be carefully
planned when contracting for work that will be performed in a deployed
location. The contract can incorporate theater commander orders,
directives and standard procedures that relate to personal safety, unit
cohesion and mission accomplishment.[^218] The contractor then directs
the contractor employees. The contract should specify any requirement
for a contractor to have weapons familiarization, immunizations,
nuclear, biological, and chemical protective mask and clothing
familiarization, and force protection training and measures. If such a
clause is in the contract, the government should ensure the personnel
sent to fulfil the contract have the required training. The contract can
include a provision authorizing the contracting officer to require the
contractor to direct the unsatisfactory employee be removed and
replaced.[^219]

If the contract needs to be altered due to changes in the requirements
for performance, the commander must work through the contracting officer
rather than directing the contractor or contractor employee to make
changes.[^220] The contracting officer will make the necessary contract
modifications and the cost of the contract to the government may
increase if the modification is outside the scope of the original
contract.[^221] However, contractual changes should be carefully
considered. For example, during U.N. Mission Implementation Force (IFOR)
in Bosnia, commanders were not informed of the fiscal ramification of
the decision to accelerate a camp construction schedule. In order to
comply with the new schedule, the contractor was required to purchase
plywood from the U.S., as there was not enough available in Europe at
the time. Consequently, a four feet by eight feet sheet of three-quarter
inch plywood cost up to \$85.98 per sheet.[^222] Contract changes are
possible, but fiscal restraints may mandate an alternative course of
action.

The commander must not obligate funds, or act to award, terminate, or
administer contracts.[^223] Should the contractor perform services or
deliver goods without proper contractual arrangements through a
contracting officer, generally one of three courses is available:
ratification; compensation (under secretary residual powers or as an
informal commitment); or submit a claim to the General Accounting
Office, none of which is an optimal situation.[^224] Judge advocates
must be involved in damage minimization for these complex and often
highly visible actions.

It is imperative that commanders recognize and plan for a contractor's
possible failure to perform the services for which he has been hired or
contracted.[^225] If a contractor fails to perform, the commander,
through a contracting officer, may direct the contract be terminated for
default. Depending upon the terms of the contract, the contractor
employee may be removed from the theater of operations or limited from
access to all or part of the U.S.-controlled facility. Whenever a
commander intends to take action against a contractor, the contracting
officer and contracting specialists should be consulted.

A commander's remedies against civilians who violate contractual
directives or otherwise fail to perform are essentially limited to, at
most, removing the civilian from working on the government contract and
terminating the contract. Administrative remedies comparable to those
available for civilian employees can be asserted.[^226] Withdrawal of
base exchange privileges, Morale, Welfare and Recreation privileges, and
barring civilian contractors from part or all of the base are some of
the options that can be taken.[^227]

#### *c. U.S. Extraterritorial Jurisdiction*

The deployed commander will very rarely find himself in a situation
where he can take criminal action against a civilian employee or
contractor who decides to walk off the job, even during hostilities. The
United States Government may, in certain cases, prosecute certain
civilians employed by or accompanying the U.S. military overseas.[^228]
Recent legislation permits some civilians who commit a felony-equivalent
crime[^229] to be tried criminally in the U.S. if the host nation has
declined to prosecute.[^230] If a nation having jurisdiction of the
offense is prosecuting or has prosecuted the civilian, the U.S. must
obtain the approval of the Attorney General or Deputy Attorney General
prior to prosecuting a civilian.[^231] The Office of the Secretary of
Defense General Counsel is currently writing implementing
regulations.[^232] This legislation will allow commanders to gain
jurisdiction over even non-U.S. citizen civilian employees, most types
of contractor and subcontractor employees, and war correspondents to the
jurisdiction of a U.S. District Court where they may be prosecuted for
serious offenses such as rape, murder, and child abuse.[^233]
Jurisdiction over theater support contractors and other non-affiliated
persons cannot be gained under this statute unless the contract employee
is a third-country national brought by the U.S. into a country in which
they do not ordinarily reside.[^234] The statute does not provide for
prosecution for failure to obey orders or dereliction of duty, or other
prosecutions that are used to support a commander's command authority
over military members. Prosecution is also dependent upon convincing the
U.S. Attorney to file charges in District Court.[^235] There are a few
other federal criminal laws that provide broader extraterritorial
jurisdiction than the Military Extraterritorial Jurisdiction Act,
although the types of offenses are limited in scope and will not solve
the command and control challenge commanders face most frequently.[^236]

Lack of command and limited control over civilian employees and
contractors presents significant challenges. The U.S. has recognized the
possibility that civilians, contractors more specifically, may not
perform even essential services during a contingency.[^237] In the vast
majority of situations, civilian employees and contractors fulfil the
terms of their employment or contract, even at personal risk to
themselves.[^238] However, civilians have walked off the job during
crisis situations. During Operation Desert Storm, food support
contractor employees refused to perform until they were provided with
chemical attack protective equipment.[^239] Immediately following the
August 1976 Korean tree-cutting incident, military alert status was
increased to Defense Readiness Condition-3, and hundreds of Army
civilian employees requested immediate evacuation out of South
Korea.[^240] The civilians were working in depot maintenance and supply
where they had replaced military workers.[^241]

If a civilian employee or contractor violates the host nation law, his
services may well be lost to his assigned unit. Recently, an essential
contractor employee supporting Operation Southern Watch decided to take
a weekend trip from one country to another. He did not notify military
personnel, nor was he required to do so. He had entered the original
host nation on a one-entry visa and was not provided other entry
protections under a SOFA. When he returned to the original host nation,
he was apprehended and the military personnel were contacted. A
subordinate commander went to the airport and secured the contractor's
release after assuring a minor agent of the host nation that the
contractor's services were necessary. Unfortunately, the unit judge
advocate was not contacted until the next day after higher-ranking host
nation personnel discovered the incident and expressed serious concerns.
The incident resulted in multiple calls to the contractor, the embassy
and higher headquarters until the contractor employee could be put on
the first airplane back to the U.S.

Commanders accustomed to command authority, unity of command, and
flexibility may find direction of civilians difficult in the fluid
deployed scenario. Due to the restrictive nature of contracts,
contractor employees often cannot adapt to the commander's intent, an
essential capability for execution of a mission. Contractors may also
have different agendas than commanders. Lack of control by a commander
over contractor employees, except through the contracting officer, can
present significant problems when rapid direction needs to be given and
when communications are limited due to technological or time zone
problems. For example, in 1998, it was not an on-site commander, but
instead contracting officers working at seven stateside locations that
controlled contractors deployed with an Army element in Kuwait.[^242]
Communications problems are also an aggravating factor in controlling
civilians. For example an Army transportation battalion supporting
Operation Joint Endeavor in the Balkans had mission-impacting telephone
communication problems as they moved Task Force Eagle from Hungary into
Croatia.[^243] Limited remedies for civilians who fail to perform
hamstring commanders who need the civilian services urgently. What good
is it to have the option to fire a civilian when that civilian is the
only person who can perform a necessary task? We have already given up
organic military support of some entire weapons systems, such as the TOW
missile successor---the ITAS.[^244] What happens to the commander who
needs ITAS support when the contractor has gone home and the weapon
system is inoperable?

Judge advocates must fight hard to ensure civilians, whether contractors
or civilian employees, are not placed in mission-essential positions.
Commanders must have back-up plans in the event a civilian refuses to or
cannot perform.[^245] Unfortunately, the U.S. has already lost organic
capabilities in some critical functions, leaving the commander with no
option but to rely upon contractor support and the trend is not
slowing.[^246] In addition, judge advocates must have a basic grasp of
the civilian employee labor system and corresponding administrative
remedies, as well as an understanding of the contractual requirements
and remedies associated with those civilians involved in their mission.

#### *d. Non-Affiliated Persons*

Military forces will not have command over non-affiliated persons such
as media, IGOs, NGOs, PVOs, refugees, stateless persons, and IDPs. There
may be some degree of control, depending upon the individual and the
organization to which he is attached and there are mechanisms to
influence these civilians.

**Media:** A proactive and assertive judge advocate can aid a commander
greatly in media relations. While the Public Affairs (PA) staff has
primary responsibility in this area, the judge advocate should always be
alert to spot potential media issues and plan for ways to respond to
media inquiries. Particularly on deployments, the assigned PA
representative may be a very junior officer with little experience
compared to the judge advocate. Judge advocates have even found
themselves in front of the microphone during operations answering
questions for the waiting world.[^247]

In the past, the military restricted information or limited access by
the media to military operations and information. Today, the military
starts from a position of almost complete open access combined with
"security at the source."[^248] Commanders are taught to "\[g\]et out
front, fill the vacuum with useful information" so that the media will
be the commander's ally rather than adversary.[^249] Particularly during
operations other than war, the commander will need to work with the
media, facilitating their access to information while minimizing the
disruption to the military operation. This facilitation can take the
form of providing both information and support. Support can include
specialized equipment such as flak vests, gear and helmets, transmission
of media reports, transportation in the area of operations, escort,
food, and billeting.[^250] For example, during Operation Provide Comfort
in northern Iraq the media was provided military transportation on
C-130s, helicopters and vehicle convoys, provided access to relocation
camps as well as troops, including special operations forces.[^251]

The control and influence of media coverage and support will usually be
coordinated through the Joint Information Bureau (JIB).[^252] Other
names for the coordination cells, depending upon the constitution of the
mission, include Allied Press Information Center, Coalition Press
Information Center, or Combined Information Bureau.[^253] The Army also
refers to these coordination cells as media operations centers when at
or below the theater level.[^254]

Typically, an open and cooperative approach is most effective and the
judge advocate should be prepared to support the commander in this
manner, while also understanding how the media can be influenced in more
restrictive ways if the need requires. Commanders have methods at their
disposal to influence the media in order to maintain operational
security.[^255] To say the military can and does exercise control over
the media is to invite misunderstanding and, therefore, criticism from
First Amendment advocates and members of the media.[^256] However, it
must be made clear that a commander has the ability to put reasonable
conditions on access to areas of hostilities, credentialing, and/or
censor information solely for the purpose of operational security and to
protect U.S. forces, but not for prohibited purposes such as withholding
embarrassing information.[^257] Other preconditions can be placed upon
access, information, and support provided to the media.

War correspondents and freelance journalists can be restricted from
access to combat locations or other information.[^258] Additionally,
civil or military authorities may subject the media to additional
restrictions and link credentials to compliance with the
restrictions.[^259] The U.S. encourages and, in some operations, can
require all media members to become credentialed by registering with the
JIB PA officer.[^260] During Desert Storm, access to the theater of
operations was denied unless the media member registered, signed an
agreement to comply with military rules, and remained with their
escort.[^261] The media members were then given credentials indicating
they were associated with the military and entitled to treatment
equivalent to a military major (O4).[^262] Thus, when with their escort,
they were considered "persons accompanying the armed forces."[^263]

The authority to establish accreditation criteria and issue credentials
has been delegated to the Assistant Secretary of Defense for Public
Affairs.[^264] Issuing credentials and identification cards then confers
upon a media member the special status of war correspondent and thereby
entitles him to POW protections upon capture.[^265] Credentials hold
practical value beyond the POW status protection. Members of the media
who do not register and agree to abide by military ground rules should
only be provided the information and support that is provided to the
general public, thus creating incentive to register.[^266] For example,
transportation, messing and billeting should only be provided to
credentialed media.

The U.S. has taken the position that "\[j\]ournalists not credentialed
by the Department of Defense may not necessarily be given the same
access as those who have credentials."[^267] Such was the case during
Operation Desert Storm.[^268] Even media members registered and with DOD
credentials will not always have the access they desire.[^269] However,
the trend is to relax access for reporters to the operation and explain
the importance of delayed reporting of sensitive information. For
example, during Operation Uphold Democracy, the media was not limited to
the long-term press pools of Operation Desert Storm.[^270] Rather,
reporters voluntarily delayed reporting information such as the
departure of aircraft carrying troops from Fort Bragg.[^271]

Media members that register to obtain U.S. credentials agree to abide by
ground rules established to protect U.S. forces and the operation.[^272]
These ground rules should be equally applied to military and civilian
members of the media.[^273] The Operation Desert Shield ground rules
listed a variety of forms of "information \[that\] should not be
reported because its publication or broadcast could jeopardize
operations and endanger lives" such as: information about future
operations, including canceled or postponed operations; details of rules
of engagement; tactics employed by special operations forces; and
information that would disclose the specific location of military
units.[^274] "Violations of the ground rules can result in suspension of
credentials and expulsion from the combat zone of the journalists
involved."[^275] Given the gravity of the impact upon a journalist who
loses his credentials, the decision to suspend credentials or expel a
reporter is reserved for the Assistant Secretary of Defense for Public
Affairs, and "should only be made after clear and severe violations have
been committed."[^276] Judge advocates should encourage their commanders
to enforce the revocation of privileges to serve as a general deterrent
so that other media members will abide by the established rules.[^277]

Censorship is another method whereby the commander can influence the
media to protect the mission and the forces. Censorship was used in
Operations Desert Shield and Desert Storm where public affairs officers
reviewed the media products prior to their transmission.[^278] When the
NBC media network violated the ground rules during Operation Desert
Storm, Israel barred them from transmitting reports on the conflict
until NBC made an on-air apology.[^279] The practical ability of a
commander to censor the media may be limited in today's high technology
world. Live reporting from the battlefield enabled by satellite coverage
and cell phones restricts censorship options except in the most extreme
circumstances. However, it is always an option that should be kept on
the table. While some members of the media may not appreciate the
necessity for censorship, the American public supported its employment
during Operation Desert Storm by a majority of two to one.[^280]

**NGO, PVO and IGO:** Military forces must work with NGOs, PVOs and
certain IGOs to obtain a better state of peace.[^281] NGOs and PVOs are
often the first and last on the scene and their personnel often operate
in high-risk areas. The U.S. military recognizes that NGOs and PVOs are
powerful organizations and commanders must factor in their activities
when planning an operation.[^282] When a mutually beneficial
relationship can be established with the primary NGOs and PVOs in an
area of operations, these organizations can be "critical" to the
successful accomplishment of the operation.[^283]

The relationship between the military and NGO/PVOs is that of associates
or partners rather than supported or supporting. [^284] NGOs and PVOs do
not usually accept direction or task assignments from the military and
many will not even coordinate or inform others of their
activities.[^285] Joint doctrine summarizes this issue succinctly when
it states "\[w\]orking with NGOs, PVOs, and IGOs requires a high degree
of tolerance for ambiguity."[^286] However, if unity of effort is to be
achieved, commanders must work with, sometimes influence, and very
rarely directly control through area restrictions, NGO/PVO personnel.

There is presently no statutory link between NGOs, PVOs and the Defense
Department. The primary means by which the U.S. Armed Forces coordinates
activities with NGOs and PVOs is through a Combined Military Operations
Center (CMOC). If the mission of the operation is humanitarian relief,
the coordination cell may be called a Humanitarian Assistance
Coordination Center (HACC). In all cases, the coordination center works
to link commanders with NGOs, PVOs and IGOs so that, through mutually
supporting communication and planning, unity of effort can be achieved.
CMOCs have been effectively utilized in a variety of operations such as
in Somalia, Haiti and northern Iraq.[^287] General A.C. Zinni, USMC,
former Commander, U.S. Central Command, described CMOCs as a political
committee that replaces a combat or fire support operations center as
the heart of an operation.[^288] Judge advocates are integrated into the
CMOC, and attend key liaison meetings regularly. For example, in
Operation Uphold Democracy, the multi-national force staff judge
advocate attended the liaison meetings, once a week at a minimum, and
the CMOC had a full-time reserve judge advocate assigned to the civil
affairs unit who attended meetings daily.[^289] These and other
attorneys involved in the operation liaised with NGOs, PVOs and IGOs in
a variety of ways, particularly with the ICRC.[^290]

While a CMOC is a positive structure in theory and practice, the very
nature of NGOs and PVOs do not always allow liaison, much less unity of
effort. Some NGOs and PVOs refuse to deal with the military or have
objectives that run counter to the military objective. Many NGOs and
POVs do not have well defined or coordinated internal heirarchical
structures, leaving their field personnel with little control or
direction and the military with no individual person to communicate with
when accomplishing tasks.[^291] NGOs and PVOs are often at odds with
each other since they are usually competing for the same charitable
contributions from the public and other organizations. This competition
is often reflected in the intense desire and need of the NGOs and PVOs
to have media coverage of their activities.[^292]

The traditional means of influence over those whom we do not have
control are available to commanders partnering with NGOs and PVOs. For
example, establishing relationships with the primary NGO and PVO leaders
in an area of operation, working toward understanding and supporting
each others' needs, and not taking actions that are not necessary for
mission accomplishment when those actions would negatively impact an NGO
or PVO partner.[^293] Logistics, security, and communications are other
ways the military can and does work with an NGO or PVO to accomplish the
mission within a climate of cooperation.[^294] Judge advocates familiar
with fiscal laws applicable in overseas disasters, humanitarian and
civic assistance missions will recall that monies and support can be
provided to NGOs and PVOs under certain circumstances. For example,
space-available transportation of relief supplies furnished by an NGO or
PVO is permissible when the Secretary of Defense so authorizes after
determining such transportation advances U.S. foreign policy, the
supplies are suitable for a legitimate need, they will be used for
humanitarian purposes, an adequate distribution arrangement exists, and
they are not distributed to military or para-military groups.[^295]
While the military can be an enabler of the NGO and PVO missions, it
cannot take over an NGO or PVO task for itself.[^296] While the power of
the purse can be an important tool when attempting to influence an
organization, the nature of these organizations is such that it is often
the military that is influenced to do anything possible to assist in the
humanitarian relief mission.[^297]

If the relationship with an NGO or PVO has degraded, yet a commander
requires some leverage with that NGO or PVO, the judge advocate must
determine the mission and affiliations of the NGO or PVO; whether it is
protected under a treaty or other international agreement; the minimum
restrictions or limitations that are necessary for military mission
accomplishment; and prepare the commander for potential media and
political scrutiny.

An NGO or PVO may be entitled to special protections in carrying out its
mission if it has a protected mission.[^298] It may also be protected if
the U.N., a state party to a conflict, or a receiving state recognizes
it. Unless an NGO or PVO is operating under a U.N. mission and in
accordance with the Safety of U.N. and Associated Persons Convention or
is providing humanitarian relief under a Chapter VII-authorized U.N.
mission, an NGO or PVO must have the receiving state's permission to
operate. Because such permission often takes a great deal of time, some
NGOs and PVOs operate without such permission.[^299] The judge advocate
must know the ramifications of international agreements prior to
attempting to restrict activities of such NGOs and PVOs. The ICRC, in
particular, is protected under international treaties, such as Geneva
Convention III and Additional Protocol I.[^300] The ICRC must be allowed
to carry out their humanitarian missions as assigned by the Geneva
Conventions, Additional Protocol I and state parties to the
conflict.[^301]

During international armed conflict, civilian medical personnel must be
allowed access to "any place where their services are essential, subject
to such supervisory and safety measures as the relevant Party to the
conflict may deem necessary."[^302] Civilians, whether general populace
or members of a relief society such as a National Red Cross, may not be
interfered with by a party to a conflict when the civilians are
collecting and caring "for the wounded, sick and shipwrecked" or
searching for the dead or reporting their location.[^303] Additional
Protocol I, article 17, codifies this protection but does not explicitly
make an allowance for restrictions based upon military necessity or the
safety or security of the protected civilians.[^304] However, because
state approval is necessary prior to the operation of a society in the
territory in question, state approval can be removed when necessary.

National Red Cross societies must be afforded facilities by their parent
state to carry out their assigned function.[^305] States must facilitate
the accomplishment of the mission of the Red Cross societies as charged
by the Geneva Conventions and Additional Protocols.[^306] States are
encouraged, "as far as possible" to support other humanitarian
organizations they have recognized as they use their Red Cross
organization.[^307]

During armed conflict that is not of an international nature,
humanitarian relief societies,[^308] and the civilian populace may offer
their services to help with collection and care of wounded, sick and
shipwrecked.[^309] States who are party to Additional Protocol II may
consent to humanitarian relief for the civilian populace in the way of
food, medial supplies and other forms of relief.[^310] Unlike Additional
Protocol I, which protects relief organizations once they have obtained
the consent of a party to the conflict, Additional Protocol II has no
such provisions. The original draft of Additional Protocol II as
submitted for consideration by the ICRC had several proposed articles
addressing relief societies that were not adopted by the international
community in the final version of Additional Protocol II.[^311]

Recognition and approval of an NGO or PVO by a Party to an international
armed conflict triggers Additional Protocol I protections. Impartial
humanitarian relief organizations that have been approved by a party to
the relief action are also protected from interference when transporting
or distributing relief consignments and equipment, food and medical
supplies, even when the relief is directed at the civilian populace of
the opposition belligerent party.[^312] Relief personnel, once approved
by the party in whose territory they will carry out their duties, are
due respect and protection, and their relief activities may be impeded,
in a limited manner or temporarily, in the event of "imperative military
necessity."[^313] Parties to the conflict are charged with protecting
the relief supplies and in aiding in their prompt distribution.[^314]
These relief personnel are strictly limited to the mission for which the
state has approved them and may, "under no circumstances" exceed that
mission.[^315] Additional Protocol I explicitly recognizes that because
these provisions are based upon party approval, one means to influence
NGOs and PVOs is to make their recognition and approval by the
government contingent upon certain terms and conditions, such as
security requirements.[^316] Certainly, any terms and conditions placed
upon the relief organizations must be taken for military necessity and
not to hinder or deny access to the relief organizations for less pure
motives. Should an NGO or PVO violate the terms of their recognition and
approval, their approval to perform relief activities may be
terminated.[^317]

Stating the obvious, political sensitivities to terminating relief
organization access to needy people must be carefully weighed against
the seriousness of the breach of the terms of the recognition and
approval. Any recommendation of restrictions on these personnel must be
carefully coordinated with public affairs personnel so that the purpose
for the termination can be clearly and accurately explained to the
public. Similarly, the Security Council or its representatives can
exclude NGOs or PVOs who threaten force or obstruct the accomplishment
of the U.N. mandate from the area of operations.[^318]

NGOs, PVOs and IGOs bring a great deal of value to the interagency table
and are often essential in achieving a better state of peace. Former
Chairman of the Joint Chiefs of Staff, General John M. Shalikashvili,
said it this way: "What's the relationship between a just-arrived
military force and the NGOs and PVOs that might have been working in a
crisis-torn area all along? What we have is a partnership. If you are
successful, they are successful; and, if they are successful, you are
successful. We need each other."[^319] At the same time, judge advocates
must be capable and willing to advise commanders on means by which these
organizations can be influenced should mission accomplishment so
require.

*3. Civilian Wear of Uniforms*

Combatants generally have a duty to distinguish themselves from
civilians while preparing for or engaging in an attack or military
operations.[^320] Combatants must also "have a fixed and distinctive
emblem recognizable at a distance."[^321] It is international customary
law that the means to satisfy this requirement is through the wear of a
distinctive uniform.[^322] The purpose of this requirement is to protect
civilians from hostilities.[^323]

#### 

#### *a. Civilian Employees*

Today, civilian employees and contractors often wear uniforms. The DOD
asserts that it does not violate international law for a civilian
employee with an armed force to wear a uniform.[^324] Thus, both U.S.
and non-U.S. citizen DOD employees in an overseas location may be
required to wear a uniform under specific conditions.[^325] For a
theater or component commander to require a U.S. citizen employee to
wear the uniform, Air Force instructions require that he must "determine
there is an actual or threatened outbreak of hostilities, involving war,
major civil disturbance (or other equally grave situations), or ... the
deployment necessitates the wearing of uniforms in specifically defined
geographic areas."[^326] Army regulations require wear of uniforms by
U.S. citizen employees when the commanding general determines is
"necessary for their ready identification, comfort, protection, and
safety."[^327] The Army regulation acknowledges that such wear of
uniform will ordinarily only be in forward areas and field condition
support areas where actual or threatened hostilities involving war or a
major civil disturbance exist.[^328] Should the tactical environment
require it, Army civilians can be required to wear kevlar helmets and
load-bearing equipment.[^329] Direct hire non-U.S. citizens may be
required to wear a uniform when the commander determines it is necessary
for the mission.[^330]

"Uniform" for members of an armed force is customarily accepted to
include utilities, chemical warfare protective clothing and similar
combat outerwear.[^331] Uniform wear by DOD civilian employees is
governed by service regulations and specific identification insignia is
required so that the civilian can be distinguished from the
military.[^332] The Air Force has designated a subdued insignia
consisting of a black equilateral triangle with the letters "U.S." in
olive drab color printed on an olive drab green cloth background and
instructs civilians to obtain these items from the Army and Air Force
Exchange Service.[^333] However, these items are difficult to obtain and
civilian employees often go without them. Because wear of a tape that
says "U.S. Air Force" is prohibited "so as not to confuse them with . .
. a military member" some wear a tape stating "DAF," identifying them as
Department of the Air Force civilians.[^334] The civilian employee may
either be provided with an allowance to cover the uniform costs, or
provided with the uniform itself, in accordance with service
regulations.[^335]

#### *b. Contractors*

Joint doctrine identifies the ability of theater commander to
contractually require a contractor to wear a battle dress uniform "when
camouflage integrity or other military necessity dictates."[^336] The
terms of the contract may specify the need for specific clothing and
equipment, including mandating uniforms.[^337] Unless specified in the
terms of the contract, the U.S. is not required to provide contractors
with uniforms. There is no DOD regulatory direction regarding the wear
of camouflage utility uniforms by contractors, as there is for civilian
employees. The Air Force generally provides that contractors should not
be issued military garments, except for compelling reasons.[^338] The
Army prohibits contractors who accompany the armed forces from wearing
military uniforms "except for specific items required for safety or
security, such as: 'chemical defense, cold weather, or mission specific
safety equipment.'"[^339] However, it authorizes the sites that
outprocess deploying contractors from the U.S. to issue Battle Dress
Uniforms (BDUs) in addition to Chemical Defensive Equipment and Extreme
Weather Clothing.[^340] Joint doctrine sets the minimum standard
stating: "commanders should ensure that contractors wear a symbol that
establishes their contractor status."[^341] Should a contractor take it
upon himself to wear a uniform, he should ensure he is distinguishable
from a member of the armed forces.

Wear of uniforms by contractors should be very restrictive. First,
civilians are putting themselves at risk of being targeted as a
combatant when they wear uniforms only slightly different than those
worn by combatants.[^342] The stated purpose of the authorization to
require civilian employees to wear uniforms is to protect them by
identifying them as members of the civilian component of the U.S.
Forces.[^343] However, the capability to target individuals, even from
the ground, from long distances makes distinguishing civilians and
military difficult at best. It was recognized as early as the war in
Vietnam that "\[t\]he speed of even the slowest fixed-wing aircraft is
so great that the pilot has little chance of positively identifying an
enemy who is not wearing a distinctive uniform, unless the latter
obligingly waves a rifle or shoots at him."[^344] Air Force policy
requires contractors who wear a uniform provided by the military to wear
a uniform distinguishable from military personnel, such as armbands,
headgear, or patches.[^345] Civilians wearing this distinctive uniform,
with the exception of a different tape or patch will not be easily
distinguished from military. One would need to be on close quarters to
see the distinctive patch worn by civilians. Instead, an enemy force may
see the utility uniform, assume the individual is military, and target
him as such.[^346] A quote regarding Operation Restore Democracy in
Haiti encapsulates this concern very well: "\[LOGCAP contractors and
subcontractors\] often physically resembled military personnel, carried
identification cards, and appeared to be members of the force from the
perspective of Haitian citizens."[^347]

Secondly, wear of uniforms brings civilians ever nearer the risks of
being found an unlawful combatant. Commentators who support the ability
to directly attack civilians who are critical to military success point
to these civilians differing from military "in name and garb
only."[^348] Even if one disagrees with the proposition that civilians
in direct support roles may be the object of attack, the wear of
uniforms strengthens the argument that such civilians have stepped into
military essential roles and should be valid military targets.

At least two external theater support contractors actively discourage
the wear of uniforms by their contract employees because they do not
want to endanger their protected status.[^349] However, the current
LOGCAP contractor allows wear of the BDU uniform by its personnel and
considers uniforms in operations in the Balkans as one of the keys to
its success. Contract employees supporting the TOW/ITAS also wear
uniforms as well as carry weapons.[^350] At a minimum, civilians should
be advised of the danger of wearing uniforms and commanders should
ensure they do not wear insignia, badges, or tapes identifying them as
members of an armed force.[^351]

#### *c. Non-Affiliated Persons*

A member of the media who wears a uniform similar to an armed force or
close to hostilities, is acting at his own risk.[^352] Unless the
military places restrictions on wear of uniform in the media ground
rules, the individual media member and his parent organization decide
what the journalist will wear. Such restrictions were not employed in
Operation Desert Storm[^353] and would be highly suspect. Most media
members wore military type uniforms during that operation.[^354] It is
up to the media to determine what is an acceptable level of risk for
their personnel. Four media members wearing military style BDUs during
Operation Desert Storm were captured and initially viewed as possible
spies.[^355] Security requirements, however, may call for provision of
specialized uniform items such as helmets and flak vests to credentialed
media members.[^356] Other non-affiliated persons generally have no
claim to uniform items, although the U.S. military is not in a position
to prohibit them from wear of uniform items available on the open
market. National Red Cross employees, however, may and have worn desert
BDUs on deployment with nametapes identifying them as Red Cross.

#### *d. Nuclear, Biological and Chemical Gear for Civilians*

Civilian employees "shall" also be provided necessary protective
equipment and training, such as Nuclear, Biological, Chemical (NBC)
defensive equipment, as determined by the in-theater commander.[^357]
The employees' sending base issue and train on CDE and NBC
equipment.[^358] NBC gear is issued "only as necessary to perform
assigned duties during hostilities, conditions of war, or other crisis
situations."[^359]

Theater admission requirements for contractors "should" include
provisions on issuance of, and training in, defensive protective gear
comparable to that issued to military in theater.[^360] Contractors have
been issued this specialized equipment in more than one instance. When
contracted flights into the Desert Storm theater of operations were
jeopardized by the threat of weapons of mass destruction, DOD provided
biological and chemical protective gear to Civilian Reserve Air Fleet
(CRAF) aircrews in order to obtain their compliance with the contract
requiring them to fly into the theater.[^361] DOD then restricted CRAF
flights from access to airfields tainted by chemical or biological
weapons.[^362] Additionally, several corporations that had previously
contracted to provide CRAF support reduced their involvement in the
program following Desert Storm.[^363] This is a significant issue in
that CRAF provides approximately thirty-three percent of heavy airlift
during call-up contingencies.[^364] Today, chemical suits are stockpiled
and ready for CRAF's utilization during a call-up.[^365] However, all
civilians will not be so forward-leaning in preparation.

Issuance to other civilians is ambiguous. Of non-affiliated persons,
media members credentialed with the military have the only authoritative
claim to this equipment. Since the military takes on security
responsibilities for registered media personnel, specialized chemical
gear may be provided.[^366] Conversely, the military is not in a
position to prevent civilian wear of uniforms, including specialized
gear, in most circumstances except by restricting access to the uniforms
or gear. For example, military members stationed at Prince Sultan Air
Base in Saudi Arabia are not permitted to dispose of their uniforms in
such a way that they could provide the civilian populace a complete
uniform part.[^367]

*4. Civilian Use of Weapons*

The U.S. asserts that it does not violate international law for a
civilian employee or a contractor with an armed force to carry a weapon
for personal defense.[^368] However, as with the wear of uniforms,
carrying arms openly is one of the four factors distinguishing
combatants from non-combatants.

#### *a. Civilian Employees and Contractors*

The U.S. Code authorizes service secretaries to promulgate regulations
authorizing civilian employees to carry weapons on duty.[^369] Even so,
the services and host nation law significantly limit carrying weapons
overseas. Civilian employees and contractors may only carry a weapon
in-theater in very limited situations for personal defense and only with
the express approval of the theater commander.[^370] The commander "in
light of the circumstances of each deployment" must carefully consider
this "extremely sensitive matter."[^371] The stated purpose is:
"Civilians deployed to the operational area may be regarded by the enemy
as combatants; therefore, combatant commanders may authorize the issue
of weapons to DOD civilians and contractor employees on a by-exception
basis for personal protection."[^372] On the other hand, joint doctrine
details several reasons for contractors not to be issued weapons and
restricts the issuance during international armed conflict.[^373] The
Air Force holds that contractors should only be issued weapons with the
express permission of the CINC, after consultation with host
authorities, and only in the most unusual circumstances, such as
protection from dangerous animals or bandits when there is not military
force protection.[^374] In any case, acceptance by a civilian of a
firearm is strictly voluntary and based on the contract provisions for
contractors.[^375] Issued weapons must be military specification small
arms using military specification ammunition.[^376] The LOGCAP
contractors do not permit their employees to carry weapons but the
contractor supporting TOW/ITAS does allow weapons.[^377]

Other laws may also prohibit arming civilian employees or contractors.
Individuals whom a supervisor or commander knows or should have reason
to know have a domestic violence conviction must be denied firearms in
accordance with U.S. domestic law.[^378] There may also be host nation
legal restrictions on the issuance of firearms to civilians, as
mentioned in Section III.C., Status of Forces Agreements (SOFAs),
below.[^379] U.S. commanders are responsible for civilian employees, and
must abide by the SOFA. Although commanders are not responsible for
contractor personnel who decide to arm themselves, commanders may not
aid in the violation of host nation law. Since contractors are rarely
covered under SOFAs, they will seldom be given waivers of host nation
arming restrictions. Accordingly, U.S. commanders will find themselves
in the position of authorizing possession of or issuing weapons to
contractors in few, if any, circumstances.

Commanders face the dilemma of authorizing the carrying of weapons prior
to the need for their use when the situation may not warrant it, versus
the urge to issue them when needed, just when the commander is consumed
with directing detailed and complex operations. As with the wear of
uniforms, commanders and civilians must consider that arming then will
increase the chances civilians will be mistaken as military members.
Joint Publication 4-0 acknowledges that the wear of arms by contractors
in a "uncertain or hostile environment can cloud their status, leaving
them open to being targeted as a combatant."[^380] Authorization for a
civilian to carry weapons should be strongly resisted except in the most
extreme circumstances. Civilians associated with the U.S. were denied
the right to carry weapons during Operation Uphold Democracy.[^381]

Civilian employees must receive training in proper use and handling of
the firearm in accordance with service regulations and be qualified
prior to issuance of the weapon.[^382] Contractors should also have this
training when contractually required, either as a mandated theater
admission requirement or provided at Individual Deployment Sites or
Continental Replacement Centers.[^383] This training should be conducted
prior to deployment and should ensure the civilian understands they may
be subjecting themselves to charges of violations of international law
and loss of their protected status as non-combatants and POW protections
should they use the weapon.[^384] Although not stated in DOD or Air
Force regulations, these standards should be established for contractor
personnel.

#### *b. Non-affiliated Persons*

Members of the media may, and have, been restricted by the U.S. Armed
Forces from carrying personal weapons. For example, one of the
conditions for media to receive U.S. credentials during Operations
Desert Shield and Desert Storm barred carrying weapons.[^385] Other
non-affiliated persons may be restricted from wear of weapons if in U.S.
control, such as refugees seeking asylum on a U.S. vessel in the high
seas, in a refugee camp overseen by the U.S., or NGOs and PVOs entering
a U.S. compound. Otherwise, unless the mission involves buying back
weapons from the civilians, the military will have little involvement in
civilian wear of weapons.

*5. Force Protection*

> Noncombatants require force protection resources.[^386]

Noncombatants are only permitted to defend themselves, and even then
they risk loss of their prisoner of war status if they are
captured.[^387] As a result, any civilians who live separate from the
military, are not under the military's control, and are not trained in
the proper use of force protection gear, present a concern to armed
forces in the vicinity since these noncombatants may require force
protection resources. Force protection involves the protection of
service members, civilian employees, government contractors, family
members, other U.S. citizens, as well as equipment and facilities.
[]{.mark}

For civilian employees as well as contractors, "\[t\]he government's
responsibility for providing force protection derives from three
factors: a legal responsibility to provide a safe workplace, a
contractual responsibility which is stipulated in most contracts, and
third, to enable the contractors to continue doing their job."[^388]
According to Joint Publication 3-11, "\[t\]he geographic combatant
commander, or subordinate JFC, has the intrinsic responsibility to
provide protection to U.S. civilians in the area of operations or joint
operations area, consistent with capabilities and operational
mission."[^389] While it sounds easy, it is difficult to define exactly
which persons must be protected and even more difficult to decide where
the lines on force protection responsibilities are drawn. Depending upon
the persons in question, the degree of hostilities or threat, and the
location of the persons, force protection responsibilities may be with
the chief of mission, a military commander, and/or the individual.
[]{.mark}

Effective force protection is only possible "through planned and
integrated application of combating terrorism, physical security,
operations security, personal protective services, supported by
intelligence, counterintelligence and other security programs."[^390] It
involves the physical security of U.S. citizens and government
contractors while not engaged in combat action. It includes a vast array
of measures, which may involve requiring noncombatants to live on a
military compound, guards and towers, NBC gear, arming, escorts, and
operational security (OPSEC) to protect from many different
threats.[^391] Under policy, commanders must take protective measures to
insulate their personnel from threats ranging from disease to
terrorism.[^392] Force protection can quickly drain a commander's scarce
resources. So, there are limits to a commander's responsibility to
persons other than the military within their area of responsibility.

#### *a. Civilian Employees*

Civilian DOD employees are part of the total force and the
responsibility of the Unified Combatant Commander when located in the
theater of operations.[^393] As such, they must be "processed and
supported in the same manner as military personnel of their employing
Component," international agreements permitting.[^394] Civilian
employees must therefore be visible within a CINC's organization. To
gain this visibility, civilian employees must be assigned or attached to
a gaining activity unit identification code (UIC), which is stated on
the employee's deployment temporary duty orders.[^395]

The Unified Combatant Commander is responsible for establishing theater
admission requirements for civilian employees.[^396] The Chairman of the
Joint Chiefs of Staff is responsible for incorporating theater admission
requirements into Joint Operations Planning and Execution System.[^397]
It is the deploying Component's responsibility to ensure the theater
admission requirements are administered and upheld.[^398] For civilians
already in theater, the responsibility for compliance is shifted to the
in-theater unit where the employee is assigned or attached.[^399]

The minimum theater admission requirements include, among other things,
issuance of an identification card; prisoner of war training; law of war
training; issuance of and training in uniforms and protective gear as
required; immunizations; and cultural awareness training as provided to
military members in the theater of operations.[^400] Passports, security
clearances, procedures for casualty notification, "dog tags" and DNA
sampling are also required.[^401] Medical and dental examinations prior
to entrance into the theater are required and medical care in-theater
must be arranged.[^402] They are also to be "furnished the opportunity
and assistance with making wills and any necessary powers of
attorney."[^403]

#### *b. Contractors*

Force protection of contractors is primarily the responsibility of the
contractor and of the Chief of Missions, usually the ambassador. The
Department of Defense Antiterrorism/Force Protection Program requires
defense contractors performing DOD contracts outside the U.S. to:
affiliate with the Overseas Security Advisory Council; ensure their U.S.
personnel register with the U.S. Embassy and third-country national
personnel register with their government; comply with DOD regulations
governing personnel overseas;[^404] and provide antiterrorism and force
protection awareness information to their personnel commensurate with
the information DOD provides to its military, civilian and family
members.[^405] However, additional force protection from the military
may still be required in times of crisis.

Ordinarily, responsibility for contractors falls to the Chief of
Missions and not the military, although this issue is not settled in
joint or service publications, and in reality, a commander will need to
ensure the security of contractors whose services are essential to the
operation.[^406] When risk increases in a deployed environment, so too
the cost of a contract increases.[^407] If a contractor has to provide
its own security escort or other high-level force protection, the cost
of their services may become prohibitive. Accordingly, when
contractually required, commanders assume the responsibility for the
protection of U.S. contractors deployed in support of military
operations.[^408] Depending upon the contract requirements and the
degree of danger in the area of operation, such high-level measures as
armed escorts may be necessary in significant numbers. Nearly two
infantry companies of Army soldiers were required every day to escort
contractors on their daily distribution routes during Stabilization
Force (SFOR) in Bosnia.[^409] Operations in Somalia, likewise, required
military escorts almost all of the time, where operations in Hungary
required limited support.[^410]

Not all contractors want the additional force protection. This also
creates challenges for the commander. For example, contractors recently
blatantly disregarded a commander's force-protection-driven directive
that all personnel live in tents on the military compound.[^411] The
contractors instead moved into a local hotel, creating significant force
protection, morale and contractor responsiveness concerns.[^412] Judge
advocates must be prepared to advise commanders on appropriate
administrative actions as discussed above in command, control and
influence of civilians.

It is the supported CINC's responsibility to ensure contractor
visibility within his theater of operations.[^413] This visibility is
theoretically achieved through integrating systems support and external
theater support contractors into the Time-Phased Force and Deployment
Date (TPFDD).[^414] However, lack of contractor personnel, material, and
equipment visibility and control have been identified as concerns during
wargames.[^415] The Army has placed the responsibility to ensure
accountability for U.S.-based contractors on the commanders of the Army
Service Component Commands.[^416] Units designated in-theater are
responsible for administrative oversight and accountability, and for
furnishing government materials as required by the contract, such as
force protection, transportation, messing and billeting.[^417]

The contract should specify any requirement for a contractor to have
weapons familiarization, immunizations, nuclear, biological, and
chemical protective mask and clothing familiarization, and force
protection training and measures.[^418] If such a clause is in the
contract, the government should ensure the personnel sent to fulfil the
contract have the required training. Finally, regulatory requirements
that contractors follow all theater entering and exiting procedures, and
obey all general orders and force protection rules must be integrated
into the contract to be enforceable as a contractual requirement.[^419]

#### *c. Non-Affiliated Persons*

Members of the news media have been killed during combat and other
high-intensity operations because they have chosen to place themselves
close to military targets. A Japanese sniper killed the most famous U.S.
World War II war correspondent, Ernie Pyle.[^420] His distinctive,
up-close and personal style of reporting made him famous but was only
possible because he made invasions with the troops, dug his own foxhole
on the frontlines and shared the "hardships of the soldiers he
covered."[^421] "In general it should not be forgotten that the
appearance of a journalist on the battlefield is unlikely to have the
effect of putting an end to the exchange of fire so that he can do his
job. For that matter, Article 79 \[of Protocol I\] does not require
this."[^422]

The commander will be responsible for the protection of a media member
that he allows to accompany the military.[^423] However, when
registering, the media member should sign a liability waiver that frees
the military of responsibility if the media member is killed or injured
during coverage of the operation.[^424] Combatant commanders are
required to assist the credentialed news media "in gaining access to
military units and personnel conducting joint and multinational
operations."[^425] The U.S. takes the position that it will not exclude
members of the news media from military operations solely to protect
their personal safety.[^426] Instead, the goal is that they should be
allowed "to accompany the organizations during the conduct of their
missions"[^427] and the personal safety of the media "shall not be a
factor in deciding the degree of access."[^428] The media is adamant
that their security is their own responsibility and they should not be
denied access because of security concerns.[^429] During the Operation
Desert Storm ground offensive, war correspondents accompanied every
combat division into battle.[^430] Accordingly, it is evident that
commanders will often be assisting the news media in placing themselves
in harms way.

When the military operation permits open coverage, commanders are
encouraged to allow the media to ride on military aircraft and vehicles
whenever feasible.[^431] Ground rules in addition to the credentialing
rules may be established to media use of military transportation.[^432]
Commanders might be required to designate facilities for the news
media.[^433] If billeting and food is not available locally, the
commander may also find himself providing these for the civilian news
media.[^434]

One option open to commanders to protect the media is to require the
media representative to be escorted by a public affairs officer, as was
required by the Operation Desert Shield guidelines for news media.[^435]
This, of course, is dependent upon the commander's manning and mission.
Then Secretary of Defense Casper Weinberger made this point about the
operation in Grenada, saying the military was "not able to guarantee any
kind of safety to anyone. We just didn't have the conditions under which
we would be able to detach enough people to protect all of the newsmen,
cameramen, gripmen and all that."[^436] In the end, media members are in
a high-risk profession and must be prepared to ensure their own safety.

Commanders rarely have force protection obligations for other
non-affiliated persons, and only when it is their assigned mission. For
example, security has been provided to NGO and PVO personnel
distributing humanitarian relief, such as the Somalia operations.[^437]
However, the demands for security by NGOs and PVOs cannot, and should
not always be met. First-hand observers of the CMOC process have
repeatedly witnessed demands made upon the military by NGOs and PVOs for
support, supplies and security that are unreasonable, unnecessary, and
untenable in their effects upon the military mission.[^438] Security for
refugees, stateless persons and IDPs will only be an issue if such a
person is on a U.S. vessel on the high seas, in U.S. territory seeking
asylum, or is otherwise in U.S. control seeking temporary refuge, as
discussed in Section III of this article.[^439]

B. Under Control of the Enemy

> Every person who falls into enemy hands must have some status under
> international law. [^440]

Close proximity to hostilities not only increases the likelihood of the
civilian becoming an unlawful combatant, it increases the chances of
capture by a hostile force. For example, in 1995, two U.S. citizens,
hydraulic mechanic sub-contractors of McDonnell Douglas servicing a U.S.
government contract and on loan to the Kuwaiti Air Force, accidentally
went into Iraq where they were captured and held captive.[^441] The U.S.
negotiated with the Iraqi government to diplomatically seek their
release after they were convicted by an Iraqi court for unlawful entry
into Iraq and sentenced to eight years imprisonment.[^442] Just days
before their fourth month in captivity, they were released.[^443] The
increased presence of civilians in the battlespace, particularly
contractors, requires judge advocates to be prepared to address this
issue.

The status of civilians who find themselves under the control of an
opposition force is complex and depends upon a number of variables.
Customary international law and a variety of treaties provide civilians
with a range of protections. Which law applies to a given circumstance
depends upon whether there was an armed conflict and whether that armed
conflict was of an international or internal nature. The broadest and
most developed protections apply to international armed conflict.
Unfortunately, civilians and military alike have few protections in the
types of missions the U.S. Armed Forces increasingly support: those not
involving armed conflict, such as relief missions, or those not of an
international character, such as encountered during peacekeeping
missions revolving around sustained, organized insurrections or
rebellions.[^444]

*1. Prisoner of War Status*

The phrase "status upon capture" typically evokes visions of prisoners
of war (POWs).[^445] U.S. government civilian employees, contractors,
and war correspondents who have "fallen into the power of the enemy"
during the course of an *international armed conflict* and who are
"persons who accompany the armed forces without being members thereof"
are entitled to POW status.[^446] This status requires release and
return to the native government at the end of active hostilities unless
the POW has criminal proceeding pending against him or he is serving
criminal punishment.[^447] During captivity, POWs are entitled to a
number of protections.[^448] They must be provided humane treatment to
include adequate food, medical care, shelter, clothing, personal
supplies and ability to conduct correspondence.[^449] They may be
interrogated but not tortured, threatened or coerced, nor may they be
subject to public curiosity, insults, intimidation or violence.[^450]
POWs must be evacuated to a safe area.[^451] They must be given
opportunities for religious worship, recreational activities and
study.[^452] There are a variety of other protections and structures
established in the Geneva Convention governing the treatment of POWs in
international armed conflict.

To qualify as POWs, persons accompanying the armed forces must have
"received authorization, from the armed forces which they accompany, who
shall provide them for that purpose with an identity card."[^453] Almost
all DOD civilian employees, all war correspondents, and many
contractors[^454] will meet this requirement. For example, DOD requires
that all "essential" contractors located overseas be issued identity
cards.[^455] Some contractors not authorized by the armed forces and not
given identification cards will not receive these protections. For
example, the theater support contractor and his employees who have been
contracted to provide off base laundry service and whose sole
association with the military is to pick-up and drop off cleaning will
most likely not qualify as persons accompanying the armed forces.

Identification cards record the function for which the civilian
accompanies the armed force.[^456] The identification card does not
itself create the legal status entitling a person to POW protections,
but rather provides the civilian with a means to prove his status.[^457]
Each state has the right to determine by which criteria they will issue
such identification cards.[^458] The U.S. complies with these
international law provisions ensuring the designated identity card is
standard for all civilian personnel who accompany the armed
forces.[^459] All emergency-essential civilians, and those filling those
positions are issued DOD identification cards.[^460] The forms are
issued before the civilian leaves the U.S. and are only issued to those
who will enter regions of hostilities. They "must" be issued to
civilians "accompanying the armed forces" prior to their
deployment.[^461] Civilian contractors that deploy into theater, such as
systems support and external theater support contractors, are also
issued DOD identifications cards.[^462] Other civilians, such as some
theater-support contractors, are under no international legal obligation
to carry an identification card.[^463]

Media members present special challenges in this area. Credentialed
media members (war correspondents) were issued identification cards
during Operations Desert Storm and Shield.[^464] Although the cards were
not like the military ID card, they did identify the media as DOD media
accompanying the armed forces and entitled to O-4 (major) equivalent
benefits when they complied with the ground rules and were with their
assigned escort or unit.[^465] Had the correspondent been captured while
his unit was overrun, he would have been entitled to POW status.[^466]
One credentialed CBS news crew was captured in Iraq during the war while
violating the credentials agreement. The media members decided to leave
their media pool PA escort because they were not satisfied with the
degree of news they were obtaining under the pool system.[^467] Reporter
Bob Simon and his three crewmembers, wearing desert BDUs, strayed into
Iraqi hands when they improperly entered Iraqi-occupied Kuwait.[^468]
The Iraqis viewed them as possible spies because of their uniforms and
equipment, and held them for forty-one days with part of the captivity
sharing space with military POWs.[^469] The U.S. did not claim the
crewmembers were entitled to POW status and they were released only
after Soviet President Mikhail Gorbachev and other world leaders
pressured the Iraqi government to release them.[^470] The media did not
want the crew to be viewed as POWs that could be lawfully held until the
end of the conflict, but instead wanted their immediate release.[^471]

Just as military members are accustomed to ensuring their identification
card is always on their person, so too must civilians be sensitized to
this requirement. Commanders, judge advocates, and contracting officers
must consider which contractors should qualify for status as one
"accompanying the armed forces without being a member thereof," and
ensure identification cards are issued appropriately. POW treatment upon
capture may depend upon it.

When doubt arises as to the status of an individual, he is presumed to
be a POW until a competent tribunal determines his status.[^472] He is
to be given POW treatment if: he claims POW status; he appears to be
entitled to such status; or a party to the conflict claims he is
entitled to POW status on his behalf.[^473] While being afforded POW
treatment, his status is "detained person" until the tribunal determines
his true status.[^474] This situation may arise if a civilian
accompanying the armed forces has lost their identity card.[^475]

Civilians who accompany the armed forces and commit belligerent acts
become unlawful combatants and are subject to trial, but do not lose
their right to POW status.[^476] Geneva Convention III, article 4A(4)'s
definition of persons who accompany the armed forces without being
members thereof establishes a certain category of civilians entitled to
POW status. There is nothing in the Convention to further restrict the
entitlement of POW status to those civilians who have not taken direct
part in hostilities. Rather, "\[p\]risoners of war prosecuted under the
law of the Detaining Power for acts committed prior to capture shall
retain, even if convicted, the benefits of the present
Convention."[^477] Provision of POW protections even to war criminals
was a deliberate and considered application of the Convention and grew
out of denial of such status and treatment during World War II.[^478] As
with other groups of persons entitled to POW status, they can still be
tried for illegal acts in accordance with the provisions set forth in
the Convention.[^479]

Persons accompanying the armed forces without being members thereof are
the only non-combatant civilians entitled to POW status.[^480]
Accordingly, NGO, PVO, journalists other than war correspondents,
refugees, and IGO personnel, unless members of another armed force such
as North Atlantic Treaty Organization (NATO) forces, are not entitled to
POW status. However, the civilian may be entitled to other protections
upon capture. What then are the protections afforded to civilians who do
not qualify as POWs, either because the conflict is not an international
armed conflict, or because they do not qualify as civilians accompanying
the armed forces? Capturing parties may voluntarily afford them
treatment comparable with that of a POW but international law requires
less depending upon the nature of the operation and who the captured
person is.[^481]

*2. Medical Personnel and Qualifying Aid Society Members*

Certain personnel permanently assigned to a medical unit, and aid
society members duly recognized and authorized by a governmental party
are protected as "retained persons" if captured during *international
armed conflict.*[^482] This includes medical and hospital personnel
assigned to ships other than a hospital ship.[^483] Protected persons
are afforded POW treatment at a minimum, although they do not have POW
status.[^484] They may be retained "only in so far as the state of
health, the spiritual needs and the number of prisoners of war
require."[^485] Should their retention not be "indispensable" for those
listed reasons, they must be returned to their government as soon as
transportation infrastructure allows and military requirements
permit.[^486] In addition, they are assured the right to continue
providing medical treatment for other captured personnel unless the
enemy has otherwise provided medical care for the wounded and
sick.[^487] They may not be compelled to perform other forms of
work.[^488]

Protected personnel include doctors, nurses, technicians, orderlies, and
any medical personnel "exclusively engaged in the search for, or the
collection, transport or treatment of the wounded or sick, or in the
prevention of disease, \[and\] staff exclusively engaged in the
administration of medical units and establishments."[^489] Protected
personnel also include "\[t\]he staff of National Red Cross Societies
and that of other Voluntary Aid Societies, duly recognized and
authorized by their Governments" engaged in activities listed above when
those personnel are "subject to military laws and regulations."[^490]
Parties to the conflict must notify each other of the names of such
qualifying organizations.[^491]

Medical and hospital personnel, and crews of a hospital ship have
additional protections.[^492] They are immune from capture while on the
ship, even if there are no wounded or sick aboard.[^493] This immunity
from capture includes officially recognized relief societies, National
Red Cross Societies, and private persons who are under the control of a
party to the conflict with their own government's consent and when the
opposing state to the conflict has been notified of their
involvement.[^494]

National Red Cross and voluntary aid societies of a neutral country may
also qualify for protections if the neutral government and the
government of the party to the conflict assent to the societies' aid and
the personnel of the societies are placed under the control of the party
to the conflict.[^495] The opposing party to the conflict must be
notified of this arrangement.[^496] They may not be detained, but must
be returned to their country or to the state where they were of service
as soon as transportation and military concerns allow.[^497] Pending
their release, they should also be allowed to care for sick and wounded,
preferably of the party to the conflict they were serving prior to
capture.[^498]

As with civilians accompanying the armed forces, medical personnel
protected under Geneva Convention I and II must also be provided
identity cards by their home government.[^499] They have the additional
requirement of wearing, affixed to the left arm, a water resistant
armlet bearing a distinctive emblem so they can easily be identified as
medical protected personnel.[^500] If medical or relief personnel commit
acts harmful to the enemy, they lose their civilian status protections
although not the status itself.[^501]

During armed conflict *not of an international nature*, medical
personnel are protected under Additional Protocol II.[^502] Additional
Protocol II does not directly discuss detaining such persons. However,
medical persons are to be respected, protected, and helped with their
duties.[^503] They may not be forced to work in ways not compatible with
their medical role nor prevented from performing their medical duties to
any wounded or sick.[^504] The doctor-patient privilege is recognized
and they must not be required to provide information on those under
their care.[^505]

*3. United Nations and Associated Personnel*

If a civilian qualifies as "United Nations personnel" or "associated
personnel" in a qualifying U.N. mission and he does not qualify for
protections under one of the four Geneva Conventions, he may be afforded
additional significant protections by the Convention on the Safety of
United Nations and Associated Personnel.[^506] U.N and associated
personnel, when detained in the performance of their duties on
qualifying missions, may not be interrogated and must be promptly
released and returned to the U.N. or appropriate authorities.[^507]
Pending their release, they must be provided treatment "in accordance
with universally recognized standards of human rights and the principles
and spirit of the Geneva Conventions of 1949."[^508] The expansive
protections of these provisions grew up out of the dramatic increase
during the 1990s in deliberate killings of U.N. personnel while on
peacekeeping missions.[^509]

Qualifying operations are those established by the "competent organ of
the U.N. in accordance with the Charter and conducted under U.N.
authority and control." [^510] Operations authorized under Chapter VII
of the U.N. Charter, where any such personnel are "engaged as combatants
against organized armed forces and to which the international law of
armed conflict applies," do not qualify as operations triggering the
Convention's protections.[^511] All other operations authorized by the
Security Council and operations authorized by the General Assembly to
maintain or restore international peace and security trigger the
Convention.[^512] Additionally, the Convention applies when the General
Assembly or Security Council have declared "there exists an exceptional
risk to the safety of the personnel participating in the operation"
whether or not the operation is conducted under U.N. command and
control.[^513]

U.N. personnel are the military and the civilian component of a U.N.
operation deployed or engaged by the U.N. Secretary-General, and who are
present in an official capacity in the area where a U.N. operation is
being conducted.[^514] These are the "blue-hats," such as those
supporting U.N. Protection Force in the former Yugoslavia (UNPROFOR) and
U.N. Mission in Haiti (UNMIH).[^515] "Associated personnel" includes
persons assigned by a government with the agreement of the competent
organ of the U.N. [^516] IGO personnel such as NATO forces assisting
with UNPROFOR, and U.S. forces and associated civilians supporting the
Unified Task Force in Somalia (UNITAF), but not under U.N. command and
control would qualify as "associated personnel."[^517] "Associated
personnel" also includes, among others, NGO personnel contractually
linked to the U.N. by an agreement with the Secretary-General.[^518] An
NGO is not incorporated into the U.N. system through mere association or
registration with the U.N. Department of Public Information, and
therefore, such NGOs and their personnel are not automatically entitled
to any immunities, privileges or special status afforded to U.N. and
associated personnel.[^519]

As with Geneva Convention III, this Convention requires qualifying
individuals to carry identification documents.[^520] These documents
need not be issued by the U.N. but do identify the individual with the
U.N. or the authorized operation. Wear of a U.N. designator on the
clothing is not required.[^521]

*4. Expert on Mission Status*

Certain experts engaged by the U.N. are protected under the Convention
on Privileges and Immunities of the United Nations.[^522] Such an
individual is referred to as in "expert on mission status" and is an
individual performing missions for the U.N. and not qualifying as a U.N.
official.[^523] Experts on mission are designated by the
Secretary-General of the U.N.[^524] and are afforded immunity from
arrest or detention and immunity from seizure of their personal baggage
and treatment of such baggage equivalent to diplomatic envoys.[^525]
These privileges and immunities apply while traveling to and from their
mission, as well as the time of their actual U.N. mission.[^526]

For example, U.S. Army Chief Warrant Officer Michael Durant was captured
on October 3, 1993, in Mogadishu, Somalia, during Operation Restore
Hope. The U.N. and U.S. position on his status was that he was an expert
on mission rather than a prisoner of war.[^527] After a great deal of
diplomatic negotiation, CWO Durant was released to the Red Cross 11 days
after capture, and to the U.S. the next day.[^528] U.S. aircrews flying
in the former Yugoslavia in support of U.N. Protective Force (UNPROFOR)
were also considered experts on missions.[^529]

*5. Universal Declaration of Human Rights*

Civilians "accompanying the armed forces" captured during international
armed conflict who carry U.S. identification cards, medical personnel,
and civilians captured while under the auspices of U.N and associate
personnel receive significant protections as long as they do not commit
acts hostile to a party to the conflict. Protections for other
individuals are much more limited. Requirements to turn individuals over
to their state's government at the conclusion of hostilities, to
evacuate them from combat zones, to limit their criminal liability, and
a variety of other protections are conspicuously missing from customary
law and most treaties.

Basic humane treatment as set forth in the Universal Declaration of
Human Rights has the most expansive applicability of all international
law by providing guarantees for all people at *all times* and in all
locations.[^530] Many provisions of the Universal Declaration, which is
not, itself, a legally binding document, reflect customary international
law on basic human rights for all mankind. These protections exist for
everyone during international and internal actions, as well as during
times when actions do not rise to the level of "armed conflict."

Individuals are not protected from being detained, but are protected
from arbitrary and capricious treatment. The Universal Declaration does
not specifically address the status of or protections to be afforded
people who find themselves in the hands of opposition forces. Relevant
minimum protections reflected in the Universal Declaration include the
right to "life, liberty and security of person."[^531] Freedom from
torture and cruel or inhuman treatment or punishment is
guaranteed.[^532] Individuals have a right to freedom from arbitrary
arrest and detention and to fair and just trial by an impartial
tribunal.[^533]

*6. Common Article 3*

Civilians who fall into enemy hands during *armed conflict* who
"tak\[e\] no active part in the hostilities" qualify for protections
found in an article common to each of the four Geneva Conventions.[^534]
Common Article 3 has been held to apply during international and
non-international armed conflict.[^535] It does not protect civilians
when there is no armed conflict, such as during some forms of military
operations other than war. Like the Universal Declaration, Common
Article 3 is very general and primarily provides that persons must be
treated humanely and may not be murdered, treated cruelly, tortured,
taken hostage, or be subject to outrages on their personal treatment, or
be criminally sentenced or executed without previous judgments
pronounced by a regularly constituted court. They must also be afforded
judicial guarantees recognized by civilized persons.[^536]

*7. Additional Protocol II*

The 1977 Additional Protocol II to the 1949 Geneva Conventions was
specifically designed to expand the humanitarian provisions afforded in
Common Article 3.[^537] Additional Protocol II provides protections for
civilians during most *non-international armed conflicts*.[^538] While
the U.S. has signed Additional Protocol II, the Senate has not ratified
it. However, much of Protocol II is arguably reflective of customary
international law and the U.S. asserts that it should apply to all armed
conflicts covered by Common Article 3.[^539] In other words, it would
apply to all non-international armed conflicts except "internal
disturbances, riots and sporadic acts of violence."[^540]

All civilians "who do not take a direct part or who have ceased to take
part in hostilities" must be treated humanely and may not be made victim
of torture, murder, mutilation, corporal punishment, collective
punishment, terrorism, humiliation, rape, degrading treatment, indecent
assault, enforced prostitution, slavery, pillage, other violence to live
or mental health, or outrages on personal dignity, be taken hostage or
be threatened with any such actions.[^541] Additional Protocol II adds
detail to these fundamental guarantees setting forth basic treatment for
detainees. Minimum protections include the right to food, potable water,
health and hygiene protections, receive relief, practice of religion and
spiritual assistance, and work conditions similar to the civilian
population.[^542] Due process rights are also guaranteed.[^543] Interned
or detained persons should also be provided, to the extent possible,
medical examinations and care consistent with the standard of care
afforded non-detained civilians---including confinement away from
hostilities, accommodation and supervision by one of the same gender
unless they are lodged together as a family, and the ability to send and
receive a reasonable number of letters and cards.[^544] Wounded and sick
civilians, whether they acted as belligerents or not, are protected with
humane and medical treatment.[^545] Children have additional protections
such as education, including moral and religious education in accordance
with their parents' desires.[^546]

*8. Additional Protocol I*

Additional Protocol I provides expanded fundamental protections during
*international armed conflict*. Similar to Common Article 3, it requires
humane treatment for all persons in the power of a state party to the
conflict.[^547] Its protections extend even to unlawful
combatants.[^548] The physical and mental health of such persons may not
"be endangered by any unjustified act or omission."[^549] These persons
are afforded protections from "violence to life, health, physical or
well-being," "outrages to personal dignity," punishment that is not
individualized and convictions by other than "an impartial and regularly
constituted court respecting the generally recognized principles of
regular judicial procedure."[^550] Women and children are afforded
additional recognition and respect to protect their bodies from sexual
crimes and to limit their separation from each other.[^551] For example,
pregnant women and those with dependent children receive priority in
examination and satisfaction of cases against them that result in their
arrest, detention or internment.[^552] As another example, children
under the age of fifteen who directly participate in hostilities even as
members of an armed force receive special protections beyond those
afforded to other POWs.[^553]

*9. Geneva Convention IV*

Geneva Convention IV generally protects civilians during *international
armed conflict*, when the civilian is in the hands of a state of which
they are not nationals and of which their state has no normal diplomatic
ties. [^554] Geneva IV protections for refugees and stateless persons
are more extensive and are discussed below. Citizens of states with
diplomatic ties (such as states neutral to the conflict, or
co-belligerent states), except refugees, must look elsewhere for
protection.[^555] Geneva Convention IV does not protect civilians who
qualify for protection as POWs, or other protections afforded by the
Geneva Conventions, such as to medical personnel.[^556] Civilians who
have, or are definitely suspected to have directly participated in
hostilities against the party in whose hands they find themselves will
not enjoy protection of those portions of the Convention prejudicial to
the security of that state.[^557] Unlawful combatants only retain due
process and basic humane treatment protections of the Convention.[^558]

The provisions of Geneva Convention IV regarding seized persons will not
protect civilian employees and contractors who are "civilians
accompanying the armed forces" since they are protected under the POW
protections. Thus, the Convention provisions on captured civilians will
likely only protect theater support or external theater support
contractor third-country national employees who are citizens of states
that do not have diplomatic ties with the detaining power, and
non-affiliated persons other than war correspondents from countries that
have no normal diplomatic relations with the capturing state. For
example, British personnel manning a British mission who were seized by
Iraqi forces during the 1990 invasion of Kuwait were protected under the
Convention.[^559]

Civilians protected under Geneva Convention IV are entitled to humane
treatment, respect for their person, homes, honor, family rights,
religious convictions and practices, and protected against threats or
acts of violence, insults, and public curiosity.[^560] States may,
however, institute necessary control and security measures.[^561]
Protected persons may, under limited cases, be "arrested," "detained" or
ultimately "interned."[^562] "Internment is a drastic restriction of
personal freedom" and may only be accomplished in one of two instances:
"it is necessary for imperative reasons of security" or "as a penalty to
be imposed on civilians."[^563] Established procedures for interning
civilians afforded treatment substantially corresponding to POWs,
although they must be housed separately from POWs.[^564] Civilians may
be interned no longer than necessary for security reasons, with the
exception of those interned in relationship to a criminal proceeding or
sentence.[^565] Accordingly, at the end of hostilities, internees not
awaiting criminal trial or serving a sentence shall be repatriated or
returned to their last place of residence.[^566]

*10. Journalists Engaged in a Dangerous Profession*

As mentioned above, media members that qualify as war correspondents and
have identification cards are persons accompanying the armed forces and
entitled to POW status. Journalists who are not war correspondents, such
as those from a country not party to hostilities and freelance
journalists, are protected as ordinary civilians and will not qualify
for POW status.[^567] Civilian "journalists engaged in dangerous
professional missions in areas of armed conflict" were specifically
recognized in Additional Protocol I, although not afforded a special
status.[^568]

Because journalists are at times in areas of danger comparable to that
encountered by combatants, and higher than that of other civilians,
Additional Protocol I sets them out as a special category of
civilian.[^569] Prior to Additional Protocol I, and other than
protections for war correspondents, there were no special recognition of
the media.[^570] Additional Protocol I does not provide protections to
the media beyond that of ordinary civilians, rather it only clarifies
that such journalist are civilians.[^571] This clarification is
important when examining in what activities media members engage. For
example, they may physically accompany an armed force into an area of
hostilities, rely upon military logistics, and transmit information on
enemy activities out of theater. Such activities do not result in the
loss of civilian protections.[^572] However, there are limits to the
activities the media may engage in. Their protections are contingent
upon their taking no "action adversely affecting their status as
civilians."[^573] In other words, just as other civilians, they may not
"take direct part in hostilities."[^574]

A credentialed media representative should be issued an identification
card attesting to his status as a journalist.[^575] As with civilian
employees and associated contractors, the identification card does not
itself create the legal status of the journalist, but rather provides
him with a means to prove his status.[^576] Freelance journalists may
also be issued identification cards.[^577] A state government provides
this card.[^578] Each state has the right to determine by which criteria
they will issue such identification cards and credentials.[^579]
Ordinarily, the identity card "should be issued by the authorities
either of his own State or the State of residence or the State where the
press agency or organization employing him is situated."[^580] The U.S.
complies with these international law provisions ensuring the designated
identity card that complies with Annex II of Protocol I,[^581] such as
Defense Department Form 489, and is standard for all civilian personnel
who accompany the armed forces.[^582] The form is issued before the
civilian leaves the U.S. and is only issued to those who will enter
regions of hostilities.[^583]

A journalist, other than a war correspondent, taken in enemy territory
may be "prosecuted if he has committed an offence, or interned if
necessary for the security of the detaining power. If not, he must be
released."[^584] Journalists who are nationals of a third,
non-belligerent state and are captured by a party to the conflict
benefit from normal peacetime legislation. They may be interned if the
detaining power has sufficient charges against them. If not, they too
must be released.[^585]

*11. Miscellaneous Additional Protections*

There are a few additional protections afforded to particular and
limited groups of civilians. Some of these protections may apply to IGO,
NGO or PVO personnel. For example, although the U.S. has signed but not
ratified the Convention for the Protection of Cultural Property in the
Event of Armed Conflict, nations such as Australia, Brazil, Germany,
Egypt, France, Mexico, Turkey and additional nations that may
participate with the U.S. in allied and coalition operations have
ratified the Convention and will be bound thereby. Civilians engaged in
safeguarding and ensuring respect for cultural property must be allowed
to carry on the performance of their duties protecting cultural property
that has fallen to the enemy.[^586] These persons may wear distinctive
armlets as referenced in the convention and must carry an identification
card.[^587]

*12. U.S. Operations and a Hypothetical Situation*

The U.S. Armed Forces has properly and appropriately held civilians in
custody during a variety of operations. Civilians, even during
operations other than war, may be interrogated in accordance with
reasonable criteria that respects human dignity and is for appropriate
command purposes, as was the case in Haiti during Operation Restore
Democracy where the ICRC praised U.S.-supervised detention
facilities.[^588] Detained civilians were placed in a temporary
detention facility where they enjoyed a high standard of humane
treatment and due process while they awaited interrogation and transfer
to Haitian facilities. The ICRC carefully and thoroughly monitored the
facility and "became strong supporters of the \[Joint Detention
Facility\] when criticism arose from the media and several detainee
family members."[^589] In fact, the facility "became one of the most
conspicuous successes of Uphold Democracy."[^590]

Interservice Instruction AFJI 31-304 details procedures for treatment of
POWs, Retained and Interned persons, and other detainees.[^591]
Combatant commanders, JTF commanders, and other Task Force Commanders
are responsible for these programs.[^592] The U.S. Army has military
police units specifically organized and trained to operate facilities in
accordance with AFJI 31-304, and they are ordinarily given such
responsibility as soon as practical.[^593]

The discussion of status on capture is concluded with a final
demonstration of the significant gaps of protection for civilians when
held in custody by nations that do not voluntarily apply POW protections
in all circumstances practicable. This hypothetical is facilitated by
changing CWO Durant, the U.S. Army helicopter pilot captured during
Operation Restore Hope, from a military member to John Doe, a civilian
accompanying the armed forces captured while properly performing a
similar U.N. mission. Since Operation Restore Hope was a Chapter VII
mission, civilian John Doe would not have qualified for protection under
the Safety of U.N. and Associated Personnel Convention, even if it had
been in force at the time. He could not qualify as a POW under Geneva
Convention III since there was no interstate conflict, as there was no
government in Somalia. He could not qualify for protections under Geneva
Convention IV or Additional Protocol I for the same reason. If the
conflict were classified as an internal conflict, but not an internal
disturbance, riot or sporadic act of violence, Additional Protocol II
protections would apply. However, no state has recognized Additional
Protocol II as applicable to hostilities in their country, not even
Russia regarding the fighting in Chechnya. Therefore, Additional
Protocol II would probably not help. Like CWO Durant, he may qualify for
expert on mission status if he had been designated appropriately by the
U.N. If not, or if this was a military operation other than war that was
not in support of a U.N. mission, he would only be entitled to humane
treatment in accordance with the Universal Declaration of Human Rights
and Common Article 3.

Given the number of deployments in which U.S. civilians and contractors
are involved that do not qualify for international armed conflict
protections upon capture, and the proximity of civilians to hostilities,
the U.S. may be exposing civilians to significant threats. The U.S. must
inform civilian employees and contractors of these risks and be vigilant
in limiting civilian employment in areas at high-risk for capture. The
U.S. must also take the lead in the international community to expand
protections for civilians captured during other than international armed
conflict. The law must address this issue more thoroughly so that the
U.S. is not relegated to a final appeal for mercy through diplomatic
channels.

*13. Refugees, Stateless Persons, and Internally Displaced
Persons*[^594]

The first portion of this section introduces the primary international
legal agreements, and basic rights and protections afforded thereunder
regarding refugees, stateless persons and IDPs. Such knowledge is useful
for judge advocates working at the strategic and operational levels
because the rights accorded protected persons by international law may
partially influence the treatment of those trying to come to U.S.
shores. For example, as with Haitian migrants in the mid-1990s,[^595]
the government may decide to intercept persons fleeing their country,
provide temporary refuge outside the U.S. or the high seas, and return
them to another state. If access by refugees is allowed to the U.S. or
high seas, treaty law, as discussed below, requires provision of several
rights and protections. Cuban refugees at various times in our history
would be an example. The second portion of this section provides a more
detailed discussion of requests for asylum and temporary refuge, a
relatively straightforward process. The focus of that section is on DOD
and service regulations governing commanders when they receive such
requests.

General protections afforded a civilian population apply to refugees,
stateless persons, and IDPs. For example, they are entitled to humane
treatment, due process, and fundamental guarantees.[^596] They are
protected against the effects of conflict, precautions in attack,
protection of women and children, right to know the fate of their
families, and right to relief actions and satisfaction of their basic
needs.[^597] Additionally, states take on a number of specific
obligations related to refugees.

Refugees and stateless persons have additional fundamental basic
guarantees of protection when in the hands of a party to the conflict.
If the person qualifies for more than one category of protections, the
more specific protections take precedence.[^598] The primary
international law for dealing with international refugees is the U.N.
Refugee Convention and Refugee Protocol I.[^599] The U.S. interprets the
U.N. Refugee Convention and its Additional Protocol broadly, protecting
individuals from state persecution as well as persecution by forces the
state cannot or will not control.[^600]

Refugees and stateless persons, regardless of when they are without
protection, and regardless of what state they were nationals, also
receive protections under Geneva Convention IV, as extended by
Additional Protocol I.[^601] Under the plain language of Geneva
Convention IV, refugees qualifying as aliens in the territory of a party
to an international armed conflict, whose native state does not have
regular diplomatic ties with the host state, are afforded protection as
aliens in Parts I and III of the Convention.[^602] The Convention
specifically references refugees in article 44.[^603] Additional
Protocol I expands Geneva Convention IV protections to stateless
persons.[^604] Additional Protocol I also alters the second paragraph of
Geneva Convention IV, article 4, by extending the protections to
refugees coming from states who maintain diplomatic relations with the
receiving state.[^605] The language of Additional Protocol I, article 73
restricts its protections to refugees and stateless persons, as so
defined under international or domestic law, if they were refugees or
stateless prior to start of hostilities.[^606] However, the ICRC
Commentary on Additional Protocol I asserts that such a limitation is
inconsistent with the expansive design of the article and should not be
regarded as limiting Geneva Convention IV protections from refugees and
stateless persons, no matter when in the conflict they become without
the protection of a state.[^607] Several of our allies, such as the
United Kingdom and Germany owe obligations to stateless persons under
the Convention Relating to the Status of Stateless Persons,[^608] and
the Convention on the Reduction of Statelessness.[^609]

Some examples of the rights enjoyed by refugees and stateless persons
are provided. Refugees and stateless persons may not be treated as enemy
aliens based solely on their native home.[^610] Protected persons retain
the right to leave the territory unless such departure is "contrary to
the national interests of the State."[^611] They are protected from
inhumane treatment, and entitled to respect for their persons, honor,
manners and customs, religious customs, and family rights.[^612]
Corporal punishment or torture may not be used to punish them.[^613]
They may not be used as "human shields" for military targets.[^614] The
detention and internment rules discussed earlier protect them as
well.[^615] States are charged with encouraging relief organizations in
this work as long as the NGOs and PVOs comply with the state's security
restrictions.[^616] State parties to an international armed conflict are
required to ease and assist in the reunification of families who have
been dispersed due to the armed conflict.[^617] Children receive special
protections and may not be moved to another country except temporarily
when necessitated by reasons associated with health and safety.[^618]
Written consent of parents and legal guardians who are known is required
prior to transportation of children.[^619] The child must continue to be
educated according to his parents' desires, including religious and
moral education. Detailed identity cards are also required for
children.[^620] As soon as possible, but at minimum at the end of active
hostilities, parties have an obligation to search for persons reported
missing by an opposition party.[^621] There are a variety of additional
rules addressing protections afforded to civilians in non-defended
localities and demilitarized zones.[^622] Even if safe and demilitarized
zones are not established, state parties to an international armed
conflict have an obligation to attempt to remove civilians "under their
control from the vicinity of military objectives" to the maximum extent
feasible.[^623]

Additionally, the receiving states must provide refugees qualifying
under the U.N. Refugee Convention with access to a variety of services.
For example, the right of free association with non-political groups,
trade unions, non-profit associations, free access to the judicial
system, elementary education, public relief, as well as certain labor
and social security benefits must be provided to qualifying refugees
lawfully in the receiving state to the same level as the state provides
to their nationals.[^624] Qualifying refugees must be given the right to
wage-earning employment and self-employment, right to movable and
stationary property, housing and freedom of movement to the same level
as accorded to aliens in the same circumstances.[^625] In OAU states,
qualifying refugees must also be settled reasonably far from the border
of the country they departed.[^626]

Qualifying refugees unlawfully in the receiving country receive basic
protection from penalties if their entrance is because their life or
freedom was threatened, as long as they notify the receiving state
authorities as soon as possible and "show good cause for their illegal
entry or presence."[^627] Finally, yet very significantly, refugees may
not be forced to return to their native home when they fear persecution
for political or religious beliefs.[^628] This article will next discuss
IDPs and then turn to the practical consequences of refugee access to
U.S. territory or U.S. vessels on the high seas and requests for asylum
and/or temporary refuge.

Presently, there are no treaties specifically addressing the problems of
IDPs, rather they are protected as part of the civilian population as a
whole. Since the early 1990s, there has been a controversial movement to
provide special recognition to the plight of IDPs.[^629] The first U.N.
Secretary-General's Representative on IDPs, Francis Deng, was appointed
in 1992.[^630] Between 1996 and 1998, the U.N. undertook the drafting of
the Guiding Principles on Internal Displacement (hereinafter Guiding
Principles). The Guiding Principles were in response to a perceived
deficiency in IDP protection.[^631] The Commission on Human Rights and
the U.N. General Assembly recognized the Guiding Principles in
1998.[^632] IDPs are defined in the Guiding Principles as:

> Persons or groups of persons who have been forced or obliged to flee
> or leave their homes or places of habitual residence, in particular as
> a result of or in order to avoid the effects of armed conflict,
> situations of generalized violence, violations of human rights or
> natural or human-made disasters, and who have not crossed an
> internationally recognized State border.[^633]

The Guiding Principles reemphasize rights of the civilian populace that
specifically apply to IDPs and assert the extension of some refugee
protections to IDPs.[^634] They remind states and others of protections
such as protection from violence or the threat thereof, right to liberty
and freedom of movement, medical attention, restoring family ties,
provisions of relief to civilian populations, voluntary repatriation and
protection from non-refoulment.[^635] Because the Guiding Principles
themselves emphasize they do not modify or replace law,[^636] it is
helpful to be reminded of some examples of binding law as applicable to
IDPs.

A variety of international laws apply to IDPs. For example, during
international armed conflict, Hague IV protects civilian populations
from punishment, arguably a protection against forced migration.[^637]
Other civilian population protections apply during international armed
conflict, even to civilians within their own territory.[^638] There is
an argument to be made that Additional Protocol I's application of
Geneva Convention IV to refugees and stateless persons also applies the
protections of the Protocol and Geneva Convention IV to IDPs.[^639] The
Convention on the Prevention and Punishment of the Crime of Genocide
provides protections to groups being targeted for partial or total
physical destruction,[^640] often a reason compelling displacement and
migration. Common Article 3 applies in international and internal armed
conflict, protecting IDPs from inhuman and degrading treatment by
states.[^641] During internal armed conflict, the civilian populace is
protected from forced displacement without "imperative" military
necessity or the need for security for the civilians.[^642] Any
justified forced movement must not remove the civilians from their own
territory and must be done with all possible means to facilitate
satisfactory shelter, hygiene, safety, nutrition, and health
conditions.[^643] The Universal Declaration on Human Rights protects all
people at all times.[^644] Additionally, if IDPs encounter U.S. military
personnel in foreign territory, they may enjoy the right to temporary
refuge, and certain limited circumstances, the right to asylum.

**Requests for Asylum and Temporary Refuge:** The right to immigrate is,
in most circumstances, determined by the receiving state. The U.N.
Refugee Convention encouraged states to assimilate and naturalize
refugees, thereby recognizing the right to emigrate, but it did not
establish a right to immigrate.[^645] Likewise, the Universal
Declaration of Human Rights recognized a right to emigrate, while
withholding recognition of a right to immigrate.[^646] Allowing
immigration, specifically granting asylum, is considered a humanitarian
and peaceable act.[^647] Some regional arrangements charge states with
using their best efforts to receive refugees and secure the resettlement
of those unwilling or unable to return home.[^648]

Persons qualifying as refugees under the OAU Refugee Convention must be
admitted by those member states, even if only temporarily while awaiting
resettlement by the receiving state after it has appealed to other
member states to share the burden of the refugee flows.[^649] The
refugee may not, in any case, be forced to return to the state they
departed, but may voluntarily return.[^650] Otherwise, where such a
right exists, the law of that particular country creates it, and the
request is evaluated against the receiving state's laws.[^651]

Once in a state party to the U.N. Refugee Convention, or on the high
seas and under the control of such a state, qualifying refugees may only
be expelled for reasons of public order or national security, and only
after due process of law which includes a reasonable period in which the
refugee can attempt to obtain admission rights into another state.[^652]
In any case, the refugee may not be returned to the location in which
his life or freedom was threatened due to his nationality, membership in
a social group, public opinion, race or religion unless he is a danger
to the security of the receiving country, or the community of the
receiving country which is demonstrated by a final conviction of a
serious crime.[^653] These treaty provisions do not protect persons
requesting asylum of U.S. persons or at a U.S. installation located in a
foreign government or within foreign territorial waters.[^654] The host
nation has the primary obligation in these instances, although some
states, including the U.S., have instituted the protection of temporary
refuge for these individuals.

The U.S. recognizes political asylum and temporary refuge in national
law.[^655] Asylum seekers who gain access to U.S. territory or a U.S.
vessel on the high seas are, by national policy, accorded full
opportunity to have their case heard and considered with due
process.[^656] Requests for asylum in foreign territories or other than
on the high seas are normally not granted in accordance with the U.S.
policy holding the host nation the responsible party.[^657] The State
Department is the lead agency in this area and is the only agency with
the authority to grant asylum.[^658] However, commanders and,
consequently their judge advocates, deal with this issue in a variety of
forms. Judge advocates should be prepared to receive these requests from
non-U.S. citizen contractor employees and other non-affiliated persons.

The U.S. Armed Forces establishes specific procedures for handling
requests for asylum and temporary refuge. The DOD defines political
asylum and temporary refuge as:

> [Political Asylum.]{.underline} Protection and sanctuary granted by
> the United States Government within its territorial jurisdiction or on
> the high seas to a foreign national who applies for such protection
> because of persecution or fear of persecution on account of race,
> religion, nationality, membership in a particular social group, or
> political opinion.
>
> [Temporary Refuge.]{.underline} Protection afforded for humanitarian
> reasons to a foreign national in a Department of Defense shore
> installation, facility, or military vessel within the territorial
> jurisdiction of a foreign nation or on the high seas, under conditions
> of urgency in order to secure the life or safety of that person
> against imminent danger, such as pursuit by a mob.[^659]

U.S. military personnel may not grant asylum, although they may receive
such requests in U.S. jurisdiction or on the high seas.[^660] When a
member of the armed forces receives a request, the asylum-seeker will be
afforded reasonable care and protections appropriate under the
circumstances.[^661] Immediate notification through the chain of command
to the service Judge Advocate General is required.[^662] Air Force
personnel are required to notify the servicing Office of Special
Investigations.[^663] Immediate notification must also be made to the
closest U.S. Immigration and Naturalization Service (INS) Office.[^664]
Transfer of the asylum seeker to the INS is accomplished as soon as
feasible.[^665] The seeker may only be surrendered to foreign
authorities upon direction by the service Secretary.[^666] Coordination
with local, state or federal law enforcement officials may be required
for protection of the individual if foreign authorities or others
attempt to harm or kidnap the seeker.[^667]

When a request for asylum is received in the territory of a foreign
government, even when onboard a military aircraft or vessel or in a DOD
facility, commanders are charged with referring the civilian to the
nearest U.S. embassy or consulate.[^668] Requests for temporary refuge
may be granted by the senior military official on scene for humanitarian
reasons if it appears the individual "need\[s\] protection from imminent
danger to life or safety."[^669] Requests for asylum that also meet the
criteria for requests for temporary refuge will be treated, in the Army,
as a request for refuge, alleviating the need to say any "magic
words."[^670] Refuge cannot be granted to individuals fleeing law
enforcement.[^671] People making asylum or temporary refuge requests
will not be turned over to foreign authorities against their will until
their request has been appropriately considered and directions for
transfer of custody are received from the service Secretary or director
of the defense agency concerned.[^672] Like asylum requests, military
personnel must immediately notify the chain of command, the OSI, the
U.S. Embassy, and the servicing Judge Advocate General of the requests
for refuge.[^673] It is only with the approval of the Assistant
Secretary for Public Affairs that information about requests for asylum
or refuge may be released to the public or media.[^674]

C. Status of Forces Agreements

> Expect to Practice Law without the Benefit of a SOFA[^675]

When preparing to deploy outside of the U.S., a judge advocate must
consider what, if any, international agreements address the status of
civilians serving alongside the military forces. Unless civilians are
granted special status under a treaty or by the host nation, they are
subject to all applicable host nation laws and jurisdiction and treated
essentially like tourists or any other businessmen.[^676] Persons who
accompany the armed forces without being members thereof are protected
under international law with POW status when captured during armed
conflict.[^677] For all other purposes, these civilians are subject to
and protected by the laws that govern the civilian populace. [^678]

A SOFA is an international agreement that establishes the status of
foreign forces serving and sets forth standard legal treatment
applicable to their presence in the host nation.[^679] It does not
authorize the presence or activities of U.S. forces.[^680] SOFA is the
oft-used term to refer to such international agreements, although there
are three forms of status agreements, whether treaties or executive
agreements: Administrative & Technical Status (A&T); mini-SOFA; and
SOFA.[^681] Currently, the U.S. is a party to 108 SOFAs.[^682] Typical
SOFA provisions address criminal jurisdiction, customs and tax
exemptions, settlement of damages caused by the forces of the sending
states, immigration, carrying weapons, and driving licenses.

While civilian employees are most often partially covered by SOFAs,
other civilians are very rarely covered. And while SOFA coverage of
contractors is limited, it is almost non-existent for non-affiliated
persons, subjecting them to all host nation laws and jurisdiction.
Unless some such NGOs and PVOs have a recognized status under a status
of forces agreement or some agreement with the host nation, U.N., and/or
the belligerents, their status is basically that of tourists.[^683] Even
the notable exceptions such as the German Supplementary Agreement to the
NATO SOFA, which recognizes the American Red Cross as supporting the
armed forces, restrict the SOFA provisions for this group beyond that
afforded to the civilian component.[^684] Commanders should expect that
non-uniformed journalists, NGOs, PVOs, and other non-affiliated persons
would be fully subject to host nation laws.

To qualify as part of a "civilian component" of an armed force, the
employee may have to satisfy certain conditions. For example, under the
NATO SOFA "civilian component" means the "civilian personnel
accompanying a force of a Contracting Party who are in the employ of an
armed service of that Contracting Party, and who are not stateless
persons, nor nationals of any state which is not a Party to the North
Atlantic Treaty, nor nationals of, nor ordinarily resident in, the state
in which the force is located."[^685] Contracting Party in this context
is a state party to the treaty. Many SOFAs do not separately designate a
"civilian component," instead including them in the definition of U.S.
personnel covered by the agreement.[^686]

Some provisions may not apply equally between the military and
designated civilian employees.[^687] For example, civilian employees
often do not receive the same customs and tax exemptions enjoyed by
military members.[^688]

"The supported CINC is responsible for determining restrictions imposed
by applicable international agreements on the status of contractor
personnel operating in the CINC's \[area of responsibility\]."[^689]
This task is not very difficult given that fewer than ten percent of the
U.S. SOFAs currently address the status of civilian contractors in any
significant manner.[^690] No SOFAs categorize contractors as part of the
"civilian component" of the armed forces, however, at least one
supplement to the NATO SOFA provides this designation to
contractors.[^691]

Even those SOFAs that address contractor personnel do not consistently
define or categorize contractors. Some SOFAs exclude all individuals
except those who are nationals or residents of the U.S. and not normally
residents of the host nation.[^692] Some agreements do not require U.S.
citizenship or residence and govern anyone hired by a U.S. contractor if
not ordinarily residents of the host nation and present in the host
nation solely for the purposes authorized in the agreement.[^693] Some
agreements require U.S. governmental designation of the contractor after
consultation with the host government.[^694] A variety of other
definitions and conditions for coverage by the SOFA are laid out in
these agreements.[^695]

Most agreements that address contractors exclude local civilians who are
recruited or hired in the host nation and are residents of the host
nation from the protection of the agreement.[^696] Theater support
contractors and some external theater support contractor employees will
fall into this category. Even if the SOFA includes local hires under its
provisions, the SOFA may specifically except most protections from
extending to local hires.[^697]

The lack of SOFA coverage for contractors has been a significant and
costly issue. Some contractors may not be able to perform without a
relevant international agreement and those that can perform may find
costs prohibitive.[^698] Systems support and external theater support
contractors may find entry into the host nation difficult, costly, or
impossible. They may be taxed, subject to local restrictions on imports
and labor, and customs and duties.[^699] On at least two occasions, the
U.S. government was unexpectedly billed millions of dollars by
contractors who, unlike the deployed military members, were not exempt
from host nation taxes.[^700] Labor problems also arise, such as during
Operation Joint Endeavor, where external theater support contractors
were prohibited from bringing employees into Hungary until they were
assured the LOGCAP contractor would employ many Hungarians.[^701]
"\[W\]ith increasing numbers of contractor personnel accompanying our
forces to nations in which we have hitherto not had a significant
presence, coupled with increasing host nation scrutiny since the end of
the Cold War, the gaps in most SOFAs concerning contractors will almost
certainly become a more salient problem."[^702]

It is easy to conclude that the simple solution to this problem is to
negotiate new international agreements. However, there are several
questions to answer and practical problems to encounter along the way.
As much as possible, the U.S. works to negotiate SOFA coverage of its
civilian component.[^703] What should be the U.S. position as to the
definition of civilian component? Should we expand our past boundaries
beyond that of the civilian component to include all "civilians
accompanying the armed forces" as that phrase is used in the Geneva
Conventions? Or should we only expand the protections to some group of
contractors, whether limited to U.S. nationals, or system support or
external theater support contractors? Should the civilian component
remain restricted and negotiations focus instead on expanding specific
protections for contractors? If so, what protections do we want
extended? For example, are we as concerned about having foreign criminal
jurisdiction protections for contractors and their employees as we are
about having tax and customs protections for the same group of
civilians?

Joint doctrine directs that "\[a\]ny requirements to include provisions
for contractor personnel should be raised to the CINC and Chief of
Mission or Department of State for possible relief during negotiations
occurring at execution."[^704] New joint doctrine states that during
negotiations of international agreements, it is U.S. policy to request
contractors be afforded the same status as DOD civilian employees when
the contractors are providing non-peacetime support to the U.S.
military.[^705] However, what might appear simple in theory is not
simple from a practical perspective. Other nations may not be interested
in granting members of the U.S. labor force special protections such as
custom and tax exemptions. They may view such actions as harmful to
their own labor force that could otherwise be hired by the U.S.
military.[^706] They may find untenable the idea of explaining to their
own public why certain groups receive special treatment that their own
public does not receive. The difficulty of negotiating for protected
status for contractors is reflected in the absence of protections for
contractors in recently negotiated agreements.

While the lack of SOFA coverage is not the optimal situation, the
reality of today's high operations tempo, combined with a variety of
other reasons results in occasions where even active duty military
members deploy without the benefit of a SOFA, or without a detailed
agreement, such as during Operation Uphold Democracy and other
operations in the Republic of Haiti during 1994 and 1995.[^707] There
was no SOFA covering operations in Somalia or Rwanda, either.[^708] An
appreciation and understanding of the host nation laws becomes
particularly important on these occasions.[^709] Commanders and judge
advocates have learned to appropriately handle such situations, as they
will continue to do so for civilians not covered adequately by
SOFAs.[^710]

**Foreign Criminal Jurisdiction and Associate U.S. Responsibilities:**
When the issue of foreign criminal jurisdiction (FCJ) is addressed, the
status of civilians accompanying the armed forces becomes particularly
complex because of the interrelationship between international and U.S
domestic law. In many instances, the host nation has exclusive criminal
jurisdiction, although they do not always exercise that
prerogative.[^711] The applicable SOFA provisions or the absence of such
provisions must be carefully examined.

International agreements usually address foreign criminal jurisdiction
in their provisions although civilians are not usually covered by the
agreements. While civilian employees are addressed in some agreements,
contractor personnel are rarely protected.[^712] Even when an agreement
includes civilian employees or other civilians under the protections of
the agreement, the lack of U.S. military criminal jurisdiction over
civilians complicates the matter. None of the SOFAs currently in
existence with the U.S. extend foreign criminal jurisdiction protections
to contractors.[^713] Lack of coverage means a civilian is fully
accountable under the host nation criminal legal system.

As an example of the complexity of this issue, we will examine the NATO
SOFA. Whether civilian employees are protected in the same manner as
military members under the NATO SOFA is a matter of debate.[^714] A
brief summary of the provisions in question is useful at this point.
Clearly, for military members, the NATO SOFA grants exclusive criminal
jurisdiction to the U.S. when the offense is in violation of U.S. laws
but not the laws of the host nation.[^715] Exclusive jurisdiction by the
host nation is maintained when the individual violates a host nation law
that is not a violation of U.S. law.[^716] Concurrent jurisdiction
exists in the remaining cases with primary jurisdiction resting in the
U.S. when the offense was committed in the performance of official
duties, was directed solely against the property or security of the
U.S., or was directed solely against the person or property of other
U.S. personnel or their dependents.[^717] In all other cases, the host
nation has primary concurrent jurisdiction, although they may decline to
exercise that jurisdiction.[^718]

Recall that civilian employees usually come within the NATO SOFA
definition of "civilian component."[^719] The NATO SOFA is also a
reciprocal agreement. With that in mind, we start the foreign criminal
jurisdiction analysis by examining the two parts of the agreement.
Article VII, section 1(a), of the SOFA states: "the *military
authorities* of the sending State shall have the right to exercise
within the receiving State all *criminal and disciplinary jurisdiction*
conferred on them by the law of the sending State over all persons
subject to the *military law* of that State."[^720] Likewise, Article
VII sec. 2a, states: "The *military authorities* of the sending State
shall have the right to exercise exclusive jurisdiction over persons
subject to the *military law* of that State with respect to offenses,
including offenses relating to its security, punishable by the law of
the sending State, but not by the law of the receiving State."[^721]
"Military law" is not defined in the SOFA.

The SOFA was concluded in 1949 when the U.S. military had criminal
jurisdiction over U.S. civilians. However, there was not a method under
U.S. law to exercise this jurisdiction after a line of cases starting in
the 1950s overturned attempts to court-martial U.S. civilians.[^722] As
a result of this contextual change, an argument can be made that
civilian employees no longer have the protection of the jurisdictional
provisions applicable to military members. The more logical position,
however, is that the foreign criminal jurisdiction provisions of the
SOFA still apply in full force to the civilian component. The later
position has been successfully argued before other NATO countries.[^723]
There are several layers to this position.

First, article VII, section 1.a. arguably, does not apply to the
exercise of foreign criminal jurisdiction by the host nation, instead
only affecting the right of a sending state to exercise their own
punitive and disciplinary authority on host nation soil. Second,
although civilian employees are not subject to the UCMJ except in time
of declared war, the articles are broader than the application of the
UCMJ. Rather, "military law" should and has been interpreted to include
all the law members of the force and civilian component are subject to
while overseas. This includes The Military Extraterritorial Jurisdiction
Act of 2000 and other extraterritorial criminal statutes that apply much
of U.S. federal criminal law to persons accompanying the armed forces
overseas.[^724] Additionally, it includes administrative law, to which
civilian employees are subject. Therefore, when the Supreme Court ended
the application of the UCMJ to civilians except in time of declared war,
it had no effect on the SOFA.

Third, as negotiated, the SOFA was never intended to only apply to
countries with military codes like the UCMJ. In fact, many other nations
do not have criminal codes exclusive to their armed forces, instead
trying their military in civil criminal courts.[^725] Some states do not
have criminal codes, civil or military, that apply extraterritorially.
Since the NATO SOFA provisions are reciprocal, when their military and
civilian component enters the U.S., these states had an interest in
ensuring that the FCJ provisions applied to them and not only the U.S.
on their soil. If the SOFA articles quoted above are interpreted not to
apply to the U.S. civilian component after the Supreme Court decisions,
then they never applied to either the military or civilian component of
some other NATO countries like Germany. Such a position would be
untenable for these states. Thousands of military and civilian component
personnel from NATO allies enter and execute military duties in the U.S.
each year.[^726] This position would leave them all entirely at the
mercy of U.S. law with no FCJ SOFA protections, even for official duty
acts.

Although entitled to do so, host nations do not always exercise criminal
jurisdiction over U.S. civilians who commit criminal offenses in their
territory, particularly if the offense is against another U.S. citizen
or against property owned by a U.S. citizen or the U.S.
government.[^727] For example, during 1998, sixteen percent of the
civilian employee and dependent misconduct cases were released to the
U.S. for alternate disposition. [^728] Additionally, every year, U.S.
citizens abroad go unpunished for crimes as serious as rape, arson, and
robbery because of host nation failure to exercise criminal
jurisdiction.[^729]

In those instances when a foreign government does exercise criminal
jurisdiction, DOD policy is to maximize the protections of U.S.
personnel, including any U.S. nationals "serving with, employed by, or
accompanying the Armed Forces of the United States" who are subject to
foreign criminal jurisdiction and imprisonment.[^730] There are a
variety of procedures the U.S. government employs to protect personnel.
Unfortunately, the broad terminology of the proposed defense instruction
applying the policies and procedures to U.S. nationals "serving with,
employed by, or accompanying the Armed Forces" is not used consistently
in the instruction, and is not adopted in the implementing Interservice
Instruction, AFJI 51-506. "Civilian personnel" is not defined, but in
practice has been interpreted as only including civilian
employees.[^731] This approach is supported by the AFJI 51-506
substitution of the more restrictive language of "civilian employees and
\[military\] dependents." This substitution is repeated throughout the
interservice instruction. Other civilians accompanying the armed forces,
such as some contractors and media members are not referenced in these
or other instructions. The result is that while U.S. citizen civilian
employees receive a variety of protections, contractors and media
members who accompany the armed forces are not so entitled except in one
limited circumstance discussed below. The following discussion assumes
these instructions apply only to civilian employees, unless otherwise
noted.

Commanders associated with U.S. citizens who are serving with, employed
by, or accompanying the military are encouraged to advocate on behalf of
these persons in specific ways in accordance with the Senate Resolution
accompanying ratification of the NATO SOFA.[^732] Where practicable,
these same procedures should be implemented in non-NATO SOFA
countries.[^733] Judge advocates should be prepared to determine whether
any of these standard provisions are inconsistent with any relevant
international agreements for the host nation. The provisions only apply
to individuals covered by the applicable SOFA.[^734] Judge advocates
should also contact their functional chain of command for direction and
work to assist their commander in contacting the proper U.S. diplomatic
personnel when appropriate in an attempt to provide this support to
civilians.[^735]

DOD cooperates with the appropriate diplomatic mission to ensure
civilian employees who are in custody of a foreign government receive
treatment commensurate with that extended to members of the U.S. Armed
Forces similarly situated.[^736] It is also DOD policy to ensure
military members are treated fairly and as they would be in a U.S.
military facility.[^737] The implementing interservice instruction
restates this policy and focuses on ensuring designated civilians are
treated fairly and the same as or similar to persons confined in U.S.
military facilities.[^738]

It is DOD policy to attempt to obtain the release of any U.S. personnel
charged with violation of a foreign criminal offense from host nation
custody.[^739] Air Force policy mirrors the DOD policy in attempting to
obtain the release of Air Force personnel.[^740] "Air Force personnel"
is not defined in the applicable instruction, however the instruction
references military members, civilian employees, and family
members.[^741] It does not reference contractors or other civilians. The
policy appears to apply to civilian employees as well as military
members because it is not directed exclusively at military members, as
are other protections afforded in the instruction.[^742]

When it appears a foreign government may exercise criminal jurisdiction
over "civilian personnel," the judge advocate and commander must assess
whether or not there will be a way to exercise U.S. criminal or
appropriate administrative jurisdiction over the civilian.[^743] Judge
advocates must be heavily involved in this process and functional
channels notified. When the local commander determines "suitable
corrective action can be taken under existing administrative regulation,
the commander may request the local foreign authorities to refrain from
exercising their criminal jurisdiction."[^744] This assessment should
particularly consider whether the civilian employee is a national of the
host nation.[^745]

International hold procedures must be established by commanders to
"ensure that Air Force personnel subject to foreign criminal
jurisdiction do not depart the country before the final disposition of
charges" without approval of Headquarters, USAF International Law
Division, and either the country representative or the designated
commander.[^746] For civilian employees, that entails obtaining written
acknowledgement by the employee "that they will not be transferred,
reassigned, or allowed to use any type of U.S.-funded transportation to
leave the host country until they are properly released."[^747]

If the host nation intends to exercise criminal jurisdiction over the
civilian, the determination must be made as to whether it appears the
civilian may receive a fair trial.[^748] If it does not appear the
civilian may be fairly tried, the General Courts-Martial Convening
Authority (GCMCA) of the command in which the civilian is located
contacts the designated commanding officer that is responsible for
implementing policies and procedures governing U.S. personnel subject to
foreign jurisdiction in the foreign country in question.[^749] The GCMCA
reports the facts of the case and provides the designated commanding
officer with recommendations.[^750] The service Judge Advocate General
is also notified through channels and the designated commanding officer
or Judge Advocate General determines whether "there is a substantial
possibility that the accused will not receive a fair trial."[^751] Such
a determination requires a designated commanding officer to consult with
the Chief of the Diplomatic Mission to assess whether a diplomatic
request to the host nation should be made, either asking for waiver of
their jurisdiction, or assurance of a fair trial.[^752] If such a
request is deemed appropriate, the designated commanding officer submits
the recommendation for the request through the unified commander and the
service Judge Advocate General to the Office of the Secretary of Defense
who will forward the matter.[^753]

Except in cases involving minor offenses, an appropriately designated
trial observer who is an attorney will attend the trial and all
proceedings associated with the trial, preparing a report of his
observations and forwarding them through functional and command channels
as appropriate.[^754] The procedures for trial observers are the same
whether the accused is a military member or a civilian employee. Unlike
military members, civilian employees are not entitled to a military
legal advisor.[^755]

While a civilian employee is in foreign custody, the designated
commanding officer implemented policies for safeguarding U.S. personnel
apply to them, similar to military members.[^756] Interestingly, this
provision of DODI 5525.1 reuses the broad language of "nationals of the
United States serving with, employed by or accompanying the armed
forces" although the Air Force Joint Instruction still only references
civilian employees.[^757] As an example of these policies, within the
forty-eight hours before the U.S. surrenders a civilian employee to
foreign authorities for confinement, a physical examination must be
conducted.[^758] If the exam was not possible within that time, the exam
must be conducted as soon as possible.[^759] As with confined military
members, civilian employees must receive regular visits at least every
thirty days and the chaplain and a medical officer should visit when
necessary and feasible.[^760] Other protections are established by the
designated commanding officer and service regulations.

Civilian employees, contractors, and media members "accompanying the
armed forces" are statutorily authorized to enjoy a very valuable set of
protections, although the services have not extended these protections
to contractors or the media. A 1985 amendment to the United States Code
expanded the application of U.S. employment of counsel for a designated
civilian, and payment of counsel fees, bail, court costs, and other
expenses. It now states:

> Under regulations to be prescribed by him, the Secretary concerned may
> employ counsel, and pay counsel fees, court costs, bail, and other
> expenses incident to the representation, before the judicial tribunals
> and administrative agencies of any foreign nation, of persons subject
> to the Uniform Code of Military Justice and of persons not subject to
> the Uniform Code of Military Justice who are employed by or
> accompanying the armed forces in an area outside the United
> States.[^761]

AFJI 51-706 uses the same expansive language stating: "necessary and
reasonable expenses incident to representation before foreign courts and
foreign administrative agencies" are authorized for "persons not subject
to the UCMJ who are employed by or accompanying the U.S. Armed Forces in
an area outside the United Sates and the territories and possessions of
the United Sates, the Northern Mariana Islands, and the Commonwealth of
Puerto Rico."[^762] However, AFJI 51-706 goes on to state: \"Funds under
10 U.S.C. 1037 will not be used to provide legal representation to
indirect hire and contractor employees."[^763] AFJI 51-706 also
specifically authorizes other civilians not otherwise eligible for the
funds to request this support in exceptional cases by submitting their
request though service channels to the service secretary or
designee.[^764] There are a variety of procedures for requesting these
funds and criteria for providing them as laid out in the interservice
regulation.[^765] Contractors and war correspondents have not enjoyed
these privileges to date.[^766]

Judge advocates confronted with an issue regarding a civilian who has
been taken into custody during a deployment, or who is otherwise subject
to host nation FCJ, have a number of issues and positions to address.
Judge advocates handling this type of matter must carefully consult
regulations and coordinate their approach with their functional chain of
command. Thought on the matter before a deployment will aid the judge
advocate significantly.

D. Support

Judge advocates also grapple with issues involving the day-to-day
support provided to deployed civilians. Additional forms of support of
civilians, more comparable to that provided to military members, may be
necessary in some circumstance. For example, life support such as
lodging, postal, or mortuary services will be required for civilian
employees in most cases, for contractors if the contract requires the
support, and rarely, if ever, for non-affiliated persons. For
thoroughness, a discussion of two major support services, medical and
legal assistance, will conclude this article.[^767]

*1. Medical*

*a. Civilian Employees*

Civilian employees preparing for deployment should have medical and
dental examinations prior to entrance into the theater.[^768]
Additionally, commanders must plan for in-theater medical care for
deployed civilian employees.[^769] Care of injuries sustained overseas
shall be provided by the DOD Military Health Services System and will be
equivalent to that received by active duty military personnel.[^770] The
civilian employee supervisor identifies any physical requirements on a
Standard Form 78, Certificate of Medical Examination, to ensure the
employee is physically capable of performing his or her positional tasks
while in the deployed environment.

*b. Contractors*

Theater admission requirements should ensure compliance with DOD
instructions requiring "civilian contractors in a theater of operations
\[receive\] the same medical care as military personnel."[^771] This
policy covers contractors who deploy into the theater of operations,
such as systems support and external theater support contractors, but
not theater support contractors. Army policy is to provide, or make
available on a reimbursable basis, medical and dental care for contract
employees to the same extent as available to civilian employees and not
prohibited by law.[^772] However, this usually does not include routine
care unless required by the contract.[^773]

The Army medical community is entitled to care for "persons outside the
United States who are otherwise ineligible when a major overseas
commander determines the care to be in the best interest of the United
States."[^774] In Operation Uphold Democracy, the commander authorized
care for all members of the multi-national U.N. force, UNMIH personnel,
supporting DOD contractors, and the International Police Monitors.[^775]

Generally, at remote locations the Air Force does not provide medical
treatment for family members, retirees, contract personnel, or personnel
who are not authorized to receive medical service at government expense
unless it is an emergency, and then only to preserve life or limb.[^776]
However, care for contractors and civilian employees during
contingencies may be made available. With Air Force Major Command
Surgeon General approval, medical care for contractors and civilian
employees during short-term contingency operations can be made available
when care is not otherwise available.[^777] Medical care for contractors
related to their duty performance is not uncommon. For example,
contractors were provided inoculations against Japanese Encephalitis
during INTERFET in East Timor.[^778]

Unless there is a specific agreement otherwise, non-affiliated persons
will usually not be entitled to medical care by the U.S. except in
emergency situations when necessary to preserve life or limb.[^779]
These persons may be allowed routine blood pressure checks and
assistance with preventative programs when the host medical treatment
facility determines it is appropriate.[^780] If additional care is then
needed, the person should be transferred to civilian facilities as soon
as possible.[^781]

*2. Legal Assistance and Notary Services*

*a. Civilian Employees*

Air Force legal offices must provide mission-related legal assistance
for civilian employees *stationed* overseas.[^782] Mission-related legal
assistance for the civilian employee and active duty member are
identical and include, but is not limited to, wills, powers of attorney,
notary services, landlord-tenant and lease issues, and Soldiers and
Sailors Civil Relief Act counseling.[^783] The legal office may provide
additional, non-mission-related legal assistance to overseas civilian
employees as expertise and resources permit.[^784]

During a deployment, legal assistance will be available to the deployed
civilian employee.[^785] Services to civilian employees prior to and in
preparation for a deployment for deployment-related matters should also
be provided. The Army specifically authorizes these services but they
are not specified by the Air Force.[^786] While AFI 51-504 defines
civilians stationed overseas as eligible legal assistance beneficiaries,
it does not mention civilians preparing to deploy. The Army grants
benefits to civilians who have accepted employment outside the U.S., who
are mission-essential or emergency-essential civilians, and those
civilians who, while neither mission-essential or emergency-essential,
have been notified they are to deploy outside the U.S.[^787] Both a DOD
directive and an Air Force Pamphlet entitles civilian employees and
their families to legal assistance related to a deployment.[^788]

Legal assistance for those preparing to deploy is limited to matters
related to their deployment, typically assistance with wills and any
necessary powers of attorney.[^789] The home-installation legal office
is responsible for this service and determining what is
deployment-related assistance.[^790]

*b. Contractors and Non-Affiliated Persons*

All other civilians, whether contractors or non-affiliated persons, will
generally not be entitled to military legal assistance. However, a
contractor employee who is also a retired military member will be
eligible when the staff judge advocate has established non-mission
related legal assistance is available for retirees.[^791] However, the
deployed judge advocate must be certain to ensure host nation law and
status of forces agreements do not limit legal assistance to civilians
who would otherwise be eligible for benefits.[^792] Non-eligible
civilians may be referred to other agencies or attorneys.[^793]

Contractors who accompany the armed forces may be entitled to legal
assistance at Army legal offices when the contract obligates DOD to
provide this assistance and host nation laws and international
agreements do not prohibit the services.[^794] These services are
limited to ministerial services such as notaries, legal counseling and
document preparation and referral to civilian lawyers.[^795] The Army
discourages these contractual provisions.[^796]

Notary services are available for a broader group of individuals. In
addition to those who are eligible for legal assistance, "persons
serving with, employed by, or accompanying the armed forces outside the
U.S." and its territories may receive notary services.[^797] This
language authorizes the Air Force to provide notary services to
contractors and war correspondents but not other civilians.

IV\. CONCLUSION

Deployed commanders and their judge advocates continually deal with
civilians across the conflict spectrum. Increasingly, a commander's very
ability to accomplish the mission is integrally involved with civilian
support. However, only recently have policy makers begun to recognize
the numbers and seriousness of the issues raised by the change in the
way the U.S. conducts its operations. Ten years after the employment of
thousands of civilians in the Gulf War, joint and service doctrine on
logistics is finally addressing contractors' roles in deployed
operations. Even today, the services are struggling with defining and
taking a stance on several civilian-related issues, such as their
authorized nexus to combat operations, uniforms, and weapons. It is no
doubt that new issues will continue to arise.

The United States' use of civilians in operations continues to thrust
them further from the shaft and closer to the tip of the spear. How
close are we to civilian employees and contractors actually or being
perceived to cross the line into combatant activities? If we haven't
already crossed the line, we are very close to doing so. Certainly
civilians that work close to hostilities, such as the JSTAR and TOW/ITAS
contractors who also wear uniforms and carry arms openly, will likely
appear to opposition forces to be combatants. Policy makers need to be
concerned, not only about the economic impact of their decisions, but
the overarching impact they may have on the life or death of those
civilians at the tip of the spear.

Commanders and Judge Advocates will not be able to prevent civilians'
presence in the battlespace because it is not now possible to conduct
operations without them. However, they should be prepared to deal with
issues that arise because of the civilians' presence such as proper
roles for those civilians, theater admission requirements, command and
control, force protection and services. They must also be prepared to
quickly and effectively deal with other civilians they will encounter
such as the media and other non-affiliated personnel. It is only through
smoothly integrating DOD civilian employees and contractors into
operations planning and execution that commanders can effectively wage
war in this new century.

[^1]: ^^ *Major Lisa L. Turner (B.A., Randolph-Macon Woman's College;
    J.D., Arizona State University, College of Law) is the Staff Judge
    Advocate of the 305^th^ Air Mobility Wing, McGuire AFB. She is a
    member of the Bar in the state of Virginia. Major Lynn G. Norton
    (B.A. and J.D., University of Alabama) is a reservist attached to
    the International and Operations Law Division, Air Force Judge
    Advocate General School, Maxwell AFB. She is a member of the Bars of
    Idaho, Alabama and Georgia. The authors thank Mr. W. Darrell
    Phillips, Chief, International and Operations Law Division, Air
    Force Judge Advocate General School, for his guidance, insights, and
    patience.*

[^2]: Air Force Pamphlet 10-231, *Federal Civilian Deployment Guide*,
    ¶1.1 (Apr. 1, 1999) \[hereinafter AFPAM 10-231\].

[^3]: The recently released Department of Defense Quadrennial Defense
    Review Report (QDR) asserts the Department of Defense must
    "aggressively" pursue the transfer to the public sector functions
    indirectly or not linked to warfighting. The QDR calls for the
    Department of Defense to more clearly identify "core" DOD functions
    and asserts that a "major change in the culture of the Department"
    is necessary to end the performance of many non-core functions by
    uniformed service members. It states, "\[a\]ny function that can be
    provided by the private sector is not a core government function."
    [Quadrennial Defense Review Report, Department of
    Defense,]{.smallcaps} 53-54 (Sep. 30, 2001) \[hereinafter 2001
    QDR\]. Unless noted, a person who is not a member of a uniformed
    armed force is assumed to be a civilian for the purpose of this
    article. International law defines "civilians" in a variety of
    places, but just as often uses the term without definition or by
    exception. For example, one of the earliest definitions is found in
    the Draft Convention for the Protection of Civilian Populations
    Against New Engines of War, art. 1, Aug. 29-Sept. 2, 1938 (reprinted
    in [The Laws of Armed Conflicts: A Collection of Conventions,
    Resolutions and Other Documents]{.smallcaps} 223 (Dietrich Schindler
    & Jiri Toman eds., 1988) which defines "civilian population" as
    including "all those not enlisted in any branch of the combatant
    services nor for the time being employed or occupied in any
    belligerent establishment . . . ." Geneva Convention Relative to the
    Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6
    U.S.T. 3516 (entered into force Oct. 21, 1950) \[hereinafter Geneva
    Convention IV\] defines and discusses "protected persons" rather
    than "civilians" and does so by exclusion rather than inclusion.
    Geneva Convention for the Amelioration of the Condition of Wounded
    and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114
    (entered into force Oct. 21, 1950) \[hereinafter Geneva Convention
    I\] discusses "persons who accompany the armed forces without
    actually being members thereof" in art. 13(5). It uses the term
    "civilian population" without a definition. *See,* *e.g.,* Protocol
    Additional to the Geneva Conventions of Aug. 12, 1949, art.18, and
    Relating to the Protection of Victims of International Armed
    Conflicts, Dec. 12, 1977, 1125 U.S.T.S. 3 (entered into force Dec.
    7, 1978) \[hereinafter Additional Protocol I\] defines "civilian" by
    exception in art. 50. Additional Protocol I, art. 43, defines armed
    forces. Persons who accompany the armed forces without being members
    thereof, such as civilian employees and most contractors, are
    civilians under the definition by exception since they are
    identified in Geneva Convention Relative to the Treatment of
    Prisoners of War, Aug. 12, 1949, art. 4A(4), 6 U.S.T. 3316 (entered
    into force Oct. 21, 1950) \[hereinafter Geneva Convention III\]. Of
    note, Additional Protocol I has not been ratified by the U.S.
    Further, the definition of civilian in Additional Protocol I is
    controversial. *See generally* W. Hays Parks, *Air War and the Law
    of War*, 32 A.F. L. Rev. 1, 75, 113 (1990). This article will only
    briefly discuss this controversy as it relates to authorized nexus
    to combat. Definitions are given for the specific groups of
    civilians referenced in this article.

[^4]: Military Operations Other Than War, also known as MOOTW, or Peace
    Operations and Disaster Relief entail an extremely broad category of
    missions, varying from humanitarian assistance, disaster relief,
    sanctions enforcement, non-combatant evacuation operations, peace
    making, to peacekeeping. MOOTW falls short of full-scale armed
    conflict but does not include "routine deployments" or traditional
    cold-war style stationing of troops overseas. *See* Report of the
    Secretary of Defense to the President and the Congress 6 (Apr. 1997)
    (annual defense report required by Department of Defense
    Reorganization Act of 1986, 10 U.S.C. §§ 113 (c) and (e), and Pub.
    L. No. 99-403 § 405).

[^5]: Outsourcing and privatization are common terms, however, the Air
    Force officially uses the phrase "competitive sourcing and
    privatization." "Outsourcing" is the "transfer of a support function
    traditionally performed by an in-house organization to an outside
    service provider, with the government continuing to provide
    appropriate oversight." This differs from "privatization" which is
    "not only the contracting out of support functions, but also the
    transfer of facilities, equipment and other governmental assets to
    the private vendor." [Defense Science Board Task Force, Office of
    the Under Secretary of Defense for Acquisition and Technology,
    Outsourcing and Privatization]{.smallcaps} 7A (Aug. 1996). The
    recently released QDR takes the position that not enough
    privatization and outsourcing has occurred to date. *See* 2001 QDR,
    *supra* note 2.

[^6]: *See, e.g.,* Joint Publication 4-0, *Doctrine for Logistic Support
    of Joint Operations* (Apr. 6, 2000) \[hereinafter JP 4-0\] as the
    first joint doctrine document to address contractors on the
    battlefield in depth; Army Regulation 715-9, *Contractors
    Accompanying the Force* (Oct. 29, 1999) \[hereinafter AR 715-9\] is
    the first Army policy for contractor support on the battlefield;
    Army Field Manual 100-10-2, *Contracting Support on the Battlefield*
    (Aug. 4, 1999) \[hereinafter FM 100-10-2\] is the first Army
    capstone doctrine manual for acquiring contractor support; Army
    Field Manual 100-21*, Contractors on the Battlefield* (Mar. 26,
    2000) \[hereinafter FM 100-21\] is the first Army doctrine for using
    contractors in support of Army operations; the Air Force released
    its first interim policy letter addressing several issues on the use
    of contractors in deployed operations. Memorandum from Lawrence J.
    Delaney, Acting Secretary of the Air Force, to all
    MAJCOM-FOA-DRU/CC, Interim Policy Memorandum---Contractors in the
    Theater (Feb. 8, 2001) \[hereinafter Interim Policy
    Memorandum---Contractors in the Theater\]. Draft Joint Publication
    1-04, *Joint Tactics, Techniques, and Procedures for Legal Support
    to Military Operations* (final draft February 8, 2001, not yet
    published) (copy on file with author) \[hereinafter JP 1-04\] (draft
    addresses several issues discussed in this article).

[^7]: Colonel Steven J. Zamparelli, *Competitive Sourcing and
    Privatization: Contractors on the Battlefield, What Have We Signed
    Up For*?, [A.F. J. Log]{.smallcaps}. 9, 10 (Fall 1999).

[^8]: *See* FM 100-10-2, *supra* note Error: Reference source not found,
    ¶ 8; FM 100-21, *supra* note Error: Reference source not found, ¶
    C-13.

[^9]: [Joint Warfighting Center, Joint Task Force Commander's Handbook
    for Peace Operations]{.smallcaps} ¶ ii (June 16, 1997) \[hereinafter
    [Joint Task Force Commander's Handbook for Peace
    Operations\]]{.smallcaps}.

[^10]: The category of non-affiliated persons includes media, IGOs,
    NGOs, PVOs, refugees, stateless persons, and IDPs. Other
    sub-categories of non-affiliated civilians include the civilian
    population of a belligerent force, mercenaries as defined in
    Additional Protocol I, art. 47, civil defense personnel as defined
    in Additional Protocol I, arts. 61-67, and independent actors.
    *Supra* note 2. These additional sub-categories will not be
    addressed in this article because a large body of work already
    exists addressing these civilian populations.

[^11]: Dep't of Defense Directive 1400.31, DOD Civilian Work Force
    Contingency and Emergency Planning and Execution ¶ D.1 (Apr. 28,
    1995) \[hereinafter DODD 1400.31\].

[^12]: According to DefenseLink, the Department of Defense News Service,
    there are 1.37 million active duty forces as of April 2001, 1.28
    million ready and stand-by reserves as of September 2000, and
    669,000 civilian employees as of April 2001. *Available at*
    http://www.defenselink.mil/pubs/almanac/ (last visited Nov. 12,
    2001) (on file with the Air Force Law Review). *See also,* Gerry J.
    Gilmore, *DOD Civilians: Partners in America\'s Defense*, [American
    Forces Info. Service]{.smallcaps} (May 1996); Staff Sergeant
    Kathleen T. Rhem, *Civilians Vital to DOD Mission*, [American Forces
    Info. Service (]{.smallcaps}June 2000).

[^13]: Gilmore, *supra* note Error: Reference source not found (quoting
    Edwin Dorn, Undersecretary of Defense for Personnel and Readiness).

[^14]: *DOD Force Mix Issues: Greater Reliance on Civilians in Support
    Roles Could Provide Significant Benefits* (General Accounting
    Office, Washington D.C.) Oct. 19, 1994, GAO/NSIAD-95-5; Gordon L.
    Campbell, Contractors on the Battlefield: The Ethics of Paying
    Civilians to Enter Harm's Way and Requiring Soldiers to Depend Upon
    Them (Jan. 27-28, 2000) (unpublished paper for presentation to the
    Joint Services Conference on Professional Ethics 2000) (on file at
    the Air Force Judge Advocate General School, Maxwell AFB, Ala.);
    Report of the Advisory Committee on Criminal Law Jurisdiction Over
    Civilians Accompanying the Armed Forces in Time of Armed Conflict 16
    (Apr. 18, 1997) (report required by The National Defense
    Authorization Act for Fiscal Year 1996, Pub. L. 104-106 (1996));
    Gilmore, *supra* note Error: Reference source not found.

[^15]: The Secretary of Defense recently stated to an audience at the
    Pentagon,

    > In this building---despite this era of scarce resources taxed by
    > mounting threats---money disappears into duplicative duties and
    > bloated bureaucracy---not because of greed, but gridlock.... In
    > this period of limited funds, we need every nickel---every good
    > idea---every innovation---every effort---to help modernize and
    > transform the U.S. military. . . . We must change for one simple
    > reason: The world has, and we haven't. . . . At bases around the
    > world, why do we pick up our own garbage and mop our own
    > floors---rather than contracting those services out, as many
    > businesses do? And surely we can outsource more computer systems
    > support. Maybe we need agencies for some of those functions.
    > Perhaps a public-private partnership would make sense for others.
    > And I don't doubt at least a few could be outsourced altogether.

    Donald H. Rumsfeld, Secretary of Defense, Address at the Pentagon
    (Sept. 10, 2001). *See generally* Headquarters United States Air
    Force DP/DPXC Message R0813247Z, Deployment of Air Force Federal
    Civilians in Support of Military Operations (May 1997) \[hereinafter
    DP/DPXC Message\]; Letter from Roger M. Blanchard, Assistant Deputy
    Chief of Staff, Personnel (Mar. 27, 1997) (on file at the Air Force
    Judge Advocate General School, Maxwell AFB, Ala.)*; Emphasis, More
    Civilians to Get BDU's*? [Army Log]{.smallcaps}. (March/April 1997)
    *available at* http://www.almc.army.mil/alog/marapr97/maemp.htm (on
    file with author); Jody Brenner, *Deployment and Civilians: What
    Incentives Do We Need?,* [Army Log. (]{.smallcaps}July/Aug. 1999)
    *available at* http://www.almc.army.mil/ALOG/JulAug99/MS329.htm (on
    file with author).

[^16]: Geneva Convention for the Amelioration of the Condition of
    Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug.
    12, 1949, art. 13(4), 6 U.S.T. 3316 (entered into force Oct. 21,
    1950) \[hereinafter Geneva Convention II\]; Geneva Convention III,
    art. 4A(4), *supra* note 2; Geneva Convention I, art. 13(4), *supra*
    note 2.

[^17]: [L.C. Green, The Contemporary Law of Armed Conflict]{.smallcaps}
    106, nn. 31, 34 (1993).

[^18]: DODD 1400.31, *supra* note 10, ¶ C.1.

[^19]: Dep't of Defense Directive 1404.10, Emergency-Essential (E-E) DOD
    U.S. Citizen Civilian Employees ¶ C.1 (Apr. 10, 1992) \[hereinafter
    DODD 1404.10\]; DODD 1400.31, *supra* note 10, ¶ C.1.

[^20]: DODD 1404.10, *supra* note Error: Reference source not found,
    defines emergency-essential (E-E) civilian employees as employees
    that fill positions outside the United States or employees:

    > that would be transferred overseas during a crisis situation, or
    > which requires the incumbent to deploy or to perform temporary
    > duty assignments overseas during a crisis in support of a military
    > operation. That position is required to ensure the success of
    > combat operations or to support combat-essential systems
    > subsequent to mobilization, an evacuation order, or some other
    > type of military crisis. That position cannot be converted to a
    > military position because it requires uninterrupted performance to
    > provide immediate and continuing support for combat operations
    > and/or support maintenance and repair of combat-essential systems.

    *See also* *Emphasis, More Civilians to Get BDU's?, supra* note 14.
    Civilian employees not designated as emergency-essential can agree
    to perform these duties in the event of a crisis situation.
    Additionally, a civilian employee who is overseas when a crisis
    occurs can be asked to stay to perform these duties. They can
    decline but "shall continue to perform the functions of the position
    if no other qualified employee or military member is reasonably
    available." They must be removed from the location "as soon as
    practicable, given the exigencies of the military situation." DODD
    1404.10, *supra* note Error: Reference source not found, ¶ 6.5. *See
    generally,* Dep't of Army Pamphlet 690-47*,* DA Civilian Employee
    Deployment Guide (Nov. 1, 1995) \[hereinafter DA Pam. 690-47\].

[^21]: ^20^ *See also* *Emphasis, More Civilians to Get BDU's?, supra*
    note 14.

[^22]: DP/DPXC Message, *supra* note Error: Reference source not found,
    ¶ 3(A)B.

[^23]: The details of this agreement are discussed in "Command, Control
    and Influence of Civilians," *infra* Part III.A.2. DODD 1404.10,
    *supra* note Error: Reference source not found, ¶ 4.6, encl. 3, DD
    Form 2365.

[^24]: DODD 1404.10, *supra* note Error: Reference source not found, ¶
    4.7.

[^25]: *Id.*

[^26]: "The Ambassador, with the approval of the Under Secretary of
    State for Management, can order the evacuation of \[U.S.
    Government\] personnel and dependents other than uniformed personnel
    of the US Armed Forces and designated emergency-essential DOD
    civilians who are not under the authority of the US COM." Joint
    Publication 3-07.5, *Joint Tactics, Techniques, and Procedures for
    Noncombatant Evacuation Operations*, III-1 (Sept. 30, 1997)
    \[hereinafter JP 3-07.5\].

[^27]: DODD 1404.10, *supra* note Error: Reference source not found, ¶
    4.8.

[^28]: JP 4-0, *supra* note Error: Reference source not found, at V-1
    (quoting Robert Morris, Superintendent of Finance, 1781).

[^29]: Zamparelli, *supra* note Error: Reference source not found, at 9.

[^30]: *Id.* Even so, the Continental Army used civilians as carpenters,
    engineers, wagon drivers, and to obtain food items, among other
    tasks, so that military men could concentrate on warfighting. *See*
    Major William W. Eply, *Contracting in War: Civilian Combat Support
    of Fielded Armies*, (U.S. Army Center of Military History,
    Washington D.C., 1989); JP 4-0, *supra* note Error: Reference source
    not found.

[^31]: *DOD Force Mix Issues: Greater Reliance on Civilians in Support
    Roles Could Provide Significant Benefits, supra* note 13;
    *Introduction,* [Issues and Strategy 2000 Selected Readings:
    Contractors on the Battlefield]{.smallcaps} 5 (A.F. Logistics Mgmt.
    Agency ed., Dec. 1999) \[hereinafter Introduction, [contractors on
    the battlefield]{.smallcaps}\].

[^32]: Introduction, [Contractors on the Battlefield]{.smallcaps},
    *supra* note Error: Reference source not found, at 5.

[^33]: *See* Brigadier General Philip M. Mattox and Lieutenant Colonel
    William A. Guinn, *Contingency Contracting in East Timor*, [Army
    Log.]{.smallcaps} (July-Aug. 2000) *available at*
    http://www.almc.army.mil/alog/julaug00/ms565.htm (on file with
    author).

[^34]: *Assistant Secretary of the Army for Acquisition, Logistics and
    Technology, The Assistant Secretary Talks About Readiness*, [Army
    Log.]{.smallcaps} (March-April 2000) (interview of Mr. Paul J.
    Hoeper). *See also* Floyd D. Spence National Defense Authorization
    Act for Fiscal Year 2001, Pub. L. 106-259 § 554 (2000) (requiring
    the Secretary of Defense to launch a study on the feasibility and
    cost of using civilian contractor personnel as pilots and other
    aircrew members to fly government aircraft performing non-combat
    personnel transportation missions worldwide now being performed by
    military members. This study is to determine whether contracting out
    would resolve pilot shortages and help improve pilot retention).

[^35]: *See* Introduction, [Contractors on the Battlefield]{.smallcaps},
    *supra* note Error: Reference source not found, at 5 (discussing all
    four reasons listed in this paragraph of text).

[^36]: JP 4-0, *supra* note Error: Reference source not found, at V-I.
    Some status of forces agreements specifically limit the numbers of
    contractors the U.S. brings into the country while executing a
    mission covered by the agreement. For example, The Annex in
    Implementation of the Mutual Defense Cooperation Agreement Between
    the Government of the United States of America and the Government of
    the Hellenic Republic, Jul. 8, 1990, T.I.A.S. No. 12321 (effective
    Nov. 6, 1990) \[hereinafter Greek SOFA\].

[^37]: Major Kim M. Nelson, Contractors on the Battlefield: Force
    Multipliers or Force Dividers? 3 (Apr. 2000) (unpublished research
    article, on file with Air Command and Staff College at Maxwell Air
    Force Base, Ala.) (discussing contracting for formerly military-only
    tasks); Colonel Herman T. Palmer, *More Tooth, Less Tail:
    Contractors in Bosnia*, [Army Log.]{.smallcaps} (Sept.-Oct. 1999)
    *available at* http://www.almc.army.mil/alog/ sepoct99/ms408.htm (on
    file with author) (describing the arrival of contractor personnel at
    the site of the armed military seizure of a transmission tower in
    Bosnia during SFOR (Stabilization Force) and unloading supplies
    within thirty minutes of the conclusion of the combat elements
    operation).

[^38]: Geneva Convention III, *supra* note 2; *see also*, AR 715-9,
    *supra* note2, ¶ 3-3d.

[^39]: *See* "Prisoner of War Status," *infra,* Part III.B.1.

[^40]: JP 4-0, *supra* note Error: Reference source not found, Ch. V.

[^41]: *Id.* at V-1. System support contracts are sometimes called
    "contractor logistics support."

[^42]: *Id.*

[^43]: The F-117 is a fighter aircraft that was designed under the
    "stealth" low-observability technology program to penetrate enemy
    radar and attack heavily defended, high-value targets. Predators are
    unmanned aerial vehicles designed to reach targets in enemy
    territory without endangering American lives. The TOW/ITAS system
    increases target acquisition ranges for all configurations of TOW
    missiles. *Product Support for the 21^st^ Century: A Year Later,*
    [Report of the Section 912(c) Study Group for Product Support
    (]{.smallcaps}Dep't of Defense Acquisition and Technology) Sept.
    2000.

[^44]: JP 4-0, *supra* note Error: Reference source not found, at V-2.

[^45]: *Id.*

[^46]: *Id.* CRAF refers to commercially owned aircraft chartered by the
    U.S. to augment strategic airlift resources in surge and emergency
    periods. In exchange for promised future support of the military,
    the civilian carrier is guaranteed a specified portion of peacetime
    DOD airlift. Civil Augmentation Plan contracts are
    cost-plus-award-fee engineering and logistics contracts to provide
    support in contingency or wartime environments. Particularly in the
    Army, the use of the LOGCAP contractor (who then often sub-contracts
    with local nationals) should be incorporated into operations plans
    and concept plans based upon Theater CINC requirements. Generally,
    LOGCAP provides transportation, engineering, construction,
    maintenance, supply operations and field services. LOGCAP is
    utilized significantly more than AFCAP or NAVFAC. AFCAP is primarily
    directed at long-term sustainment support, although it can
    accomplish bed down tasks. Unlike LOGCAP, AFCAP does not cover
    hostile situations, but rather disaster relief and non-hostile
    contingencies. Major Maria J. Dowling and Major Vincent J. Feck, *A
    Joint Logistics and Engineering Contract*, [Issues and Strategy 2000
    Selected Readings: Contractors on the Battlefield]{.smallcaps} 61-67
    (A.F. Logistics Mgmt. Agency ed., Dec. 1999).

[^47]: JP 4-0, *supra* note Error: Reference source not found, at V-2.

[^48]: Dep't of Defense Instruction 3020.37, *Continuation of Essential
    DoD Contractor Services During Crises*, Enclosure 2, ¶ E2.1.3 (Jan.
    26, 1996).

[^49]: One must remember that joint doctrine is authoritative and takes
    precedence over service doctrine for joint activities, although in
    exceptional circumstances, a commander need not follow it.
    Commanders in multinational operations should follow ratified
    multinational doctrine such as NATO. When not ratified by the U.S.,
    the commander must evaluate the doctrine and apply it where
    applicable. This statement is laid out in the preface of each joint
    doctrine publication.

[^50]: W. Darrell Phillips, Chief, International and Operations Law
    Division, Lecture at the Air Force Judge Advocate General School,
    Maxwell Air Force Base, Ala.

[^51]: The category of non-affiliated persons includes media, IGOs,
    NGOs, PVOs, refugees, stateless persons, and IDPs. Other
    sub-categories of non-affiliated civilians include the civilian
    population of a belligerent force, mercenaries as defined in
    Additional Protocol I, art. 47, civil defense personnel as defined
    in Additional Protocol I, arts. 61-67, and independent actors.
    *Supra* notes Error: Reference source not found and Error: Reference
    source not found.

[^52]: Lieutenant Commander James J. McHugh, The Media Factor: An
    Essential Ingredient to Operational Success 3 (June 13, 1997)
    (unpublished research paper, on file with the Naval War College)
    (quoting General Sherman).

[^53]: Joint Publication 3-61, Doctrine for Public Affairs in Joint
    Operations III-7 (May 14, 1997) (emphasis omitted) \[hereinafter JP
    3-61\].

[^54]: *Id.* at III-1. Coverage of U.S. operations continued to grow
    with more than 500 media personnel in each Grenada and Panama.

[^55]: JP 3-61, *supra* note Error: Reference source not found, at I-3
    (citing DOD Final Report To Congress, [Conduct of the Persian Gulf
    War]{.smallcaps}*,* Apr. 1992).

[^56]: *Id.* at III-1.

[^57]: U.S. Army Center for Legal and Military Operations, *Law and
    Military Operations in Haiti, 1994--1995: Lessons Learned for Judge
    Advocates* 78, 80 (Dec. 11, 1995) \[hereinafter CLAMO Haiti Lessons
    Learned\].

[^58]: JP 3-61, *supra* note Error: Reference source not found, at
    III-1.

[^59]: *Id.* at vi.

[^60]: *Id.* (emphasis omitted).

[^61]: *See generally*, [Hans-Peter Gasser]{.smallcaps}, [The Handbook
    of Humanitarian Law in Armed Conflicts]{.smallcaps} 228-230 (Dieter
    Fleck ed., 1995) \[hereinafter [Gasser, Handbook of Humanitarian
    Law\]]{.smallcaps}; [Claude Pilloud et al., Commentary of the
    Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
    August 1949]{.smallcaps} (Yves Sandoz et al. eds., 1987)
    \[hereinafter [Pilloud]{.smallcaps}\].

[^62]: [Pilloud]{.smallcaps}, *supra* note Error: Reference source not
    found, at 918. Journalist is not further defined in Additional
    Protocol I, *supra* note Error: Reference source not found.

[^63]: Additional Protocol I, art. 79, *supra* note Error: Reference
    source not found.

[^64]: *See* [Pilloud]{.smallcaps}, *supra* note Error: Reference source
    not found, at 921.

[^65]: *Id.*

[^66]: Geneva Convention III, *supra* note Error: Reference source not
    found.

[^67]: *See* [Pilloud]{.smallcaps}, *supra* note Error: Reference source
    not found, at 921.

[^68]: *See* [Gasser, Handbook of Humanitarian Law,]{.smallcaps} *supra*
    note Error: Reference source not found, at 228-229; *See also*,
    Hans-Peter Gasser, *The Protection of Journalists Engaged in
    Dangerous Professional Missions*, 232 [Int'l Rev. of the Red Cross 3
    (]{.smallcaps}Jan. 1, 1983) \[hereinafter Gasser, *Protection of
    Journalists*\].

[^69]: *See, e.g*., [Pilloud]{.smallcaps}, *supra* note Error: Reference
    source not found, at 921.

[^70]: *See, e.g.,* McHugh, *supra* note Error: Reference source not
    found; Telephone Interview with Lieutenant Colonel Kevin Krejcarek,
    Air University Public Affairs Officer, Maxwell Air Force Base, Ala.
    (Apr. 26, 2001) \[hereinafter Krejcarek Telephone Interview\].

[^71]: This topic will be discussed in detail in "Under Control of the
    Enemy" in Part III.B. of this article.

[^72]: *See supra* note Error: Reference source not found and
    accompanying text. War Correspondent is not further defined in the
    Geneva Conventions of 1949 or in Additional Protocol I.
    Interestingly, during Operations Desert Shield and Desert Storm, the
    British Army required media members to take an oath of office, put
    them in military uniforms, and assigned them to units for the long
    term in exchange for access to the theater of operations.
    Christopher Walker, *Strong-arm Tactics Used to Curb War Reporting,*
    [The Times]{.smallcaps}, Overseas News (Feb. 8, 1991); Media Day,
    Media Panel, Air Command and Staff College, Maxwell Air Force Base,
    Ala. (Apr. 26, 2001). Since war correspondents are accredited with
    the military, they do not fit neatly under the category of
    non-affiliated persons. Since most media do not qualify as war
    correspondents, the media as a whole is categorized as
    non-affiliated.

[^73]: Geneva Convention III, art. 4A(4), *supra* note Error: Reference
    source not found; [Gasser, Handbook of Humanitarian
    Law]{.smallcaps}, *supra* note Error: Reference source not found, at
    229. *Cf*. [Green]{.smallcaps}, *supra* note Error: Reference source
    not found, at 106 n.32 (defining war correspondents as "full-time
    newspaper or other media reporters in uniforms, carrying identity
    cards indicating their status and attached to the armed forces" and
    distinguishing them from "journalists engaged on dangerous
    professional mission" as regulated by Additional Protocol I, art.
    79, *supra* note Error: Reference source not found). Green's
    definition is different from that of Geneva Convention III and is
    not the view adopted in this article.

[^74]: Geneva Convention III, *supra* note Error: Reference source not
    found.

[^75]: Accredited to a party to the conflict is different than any
    accreditation a media representative may have from the news
    organization that employs him or her.

[^76]: JP 3-61, *supra* note Error: Reference source not found, at GL-3.

[^77]: Joint Publication 3-08, *Interagency Coordination During Joint
    Operations*, Vol. I, II-18 (Oct. 9, 1996) \[hereinafter JP 3-08\]
    (quoting Madeline K. Albright, Ambassador, U.S. Representative to
    the United Nations).

[^78]: *Id.*

[^79]: *Id.*

[^80]: *Id.* at II-19.

[^81]: Approximately 78 NGOs and PVOs were involved in relief operations
    in Somalia and over 100 assisted the U.N. relief efforts in Rwanda.
    *Id.* Additionally, in 1996, over 350 U.S.-based PVOs were
    registered with United States Agency for International Development
    (USAID), and that number had increased to over 450 by 2000, Mary
    Newton, e-mail to author on Dec. 13, 2000 (on file at the Air Force
    Judge Advocate General School, Maxwell AFB, Ala.); InterAction, a
    U.S.-based coalition of NGOs and PVOs, has over 165 worldwide
    members, information on members *available at*
    http://www.interaction.org/ (on file with author); JP 3-08 V. 1,
    *supra* note Error: Reference source not found, at II-19.

[^82]: United Nations Charter *available at*
    http://www.un.org/Overview/Charter/contents.html (on file with
    author).

[^83]: United Nations Press Release, *On 50th Anniversary of Conference
    of Non-Governmental Organizations, Deputy Secretary-General Says
    NGOs Serve As Global Conscience*, U.N. Doc. DSG/SM/38, Dec. 3, 1998;
    Directory of NGOs Associated with Department of Public Information,
    United Nations *available at* http://www.un.org/MoreInfo/
    ngolink/ngodir.htm (last visited Nov. 14, 2001) (on file with the
    Air Force Law Review).

[^84]: Jonathan Dwarken, *Restore Hope: Coordinating Relief Operations*,
    [Joint Forces Q]{.smallcaps}. 14 (Summer 1995).

[^85]: *Id* at 14.

[^86]: JP 3-08 *supra* note Error: Reference source not found, at Vol.
    1, II-18.

[^87]: W. Darrell Phillips, "NGO/PVOs Current Issues," Lecture at Air
    Force Judge Advocate General School, Maxwell Air Force Base, Ala.
    (Dec. 2000); JP 3-08, *supra* note Error: Reference source not
    found, at Vol. 1, II-19.

[^88]: JP 3-08, *supra* note Error: Reference source not found, at Vol.
    1, II-20.

[^89]: Joint Publication 3-07, *Joint Doctrine for Military Operations
    Other Than War* IV-7 (June 16, 1995) (emphasis omitted)
    \[hereinafter JP 3-07\].

[^90]: Department of Public Information, Non-governmental Organizations
    Section, NGOs and the Department of Public Information: Some
    Questions and Answers *available at*
    http://www.un.org/MoreInfo/ngolink/brochure.htm (last visited Nov.
    14, 2001) (on file with the Air Force Law Review).

[^91]: Article 71 of the Charter provides \"\...the Economic and Social
    Council may make suitable arrangements for consultations with
    non-governmental organizations which are concerned with matters
    within its competence.\" U.N. Charter, *supra* note Error: Reference
    source not found. Such arrangements are governed by the Economic and
    Social Council Resolution 1296 (XLIV) of May 23, 1968, which makes
    provision for NGOs to be placed in consultative status with the
    council, as well as for them to hold consultations with its
    secretariat.

[^92]: For example, Geneva Convention IV, art. 11, *supra* note Error:
    Reference source not found; references humanitarian organizations,
    listing the International Committee of the Red Cross as an example.
    In art. 63, Geneva Convention IV mentions relief societies after
    discussing National Red Cross (Crescent) Societies. Geneva
    Convention IV also addresses relief in art. 59--62, 108, 110 and
    111. Additional Protocol I, arts. 69--71, *supra* note Error:
    Reference source not found; also discusses relief organizations and
    their personnel.

[^93]: JP 3-07, *supra* note Error: Reference source not found, at GL-4.
    Army Field Manual 100-8, *The Army in Multinational Operations*
    (Nov. 1977) includes the term "nonprofit."

[^94]: While JP 3-08, V.I and V.II classify the ICRC as a "regional
    organization" rather than a NGO, although international legal
    scholars group the ICRC as a NGO. *See* [U.N. Peace Operations: A
    Collection of Primary Documents and Readings Governing the Conduct
    of Multilateral Peace Operations]{.smallcaps} 404 (Walter Gary Sharp
    Sr. ed., 1995) \[hereinafter [U.N. Peace Operations]{.smallcaps}\].
    For examples of other NGOs, *see* JP 3-08, *supra* noteError:
    Reference source not found, Vol. II, Appendix B.

[^95]: JP 3-08, *supra* note Error: Reference source not found, Vol. 1,
    at GL-10.

[^96]: "NGO/PVOs Current Issues," *supra* note Error: Reference source
    not found; JP 3-08, *supra* note Error: Reference source not found,
    Vol. II, at B-A-41.

[^97]: Joint Publications categorize IGOs as "regional and international
    organizations \[that\] possess area or global influence" and "have
    well-defined structures, roles, and responsibilities and are usually
    equipped with the resources and expertise to participate in complex
    interagency operations." JP 3-08, *supra* note Error: Reference
    source not found, Vol. II. This language will not be adopted for
    this article because international corporations would come within
    their definition. Additionally, this terminology is not used
    extensively in the international or intra-governmental arenas.

[^98]: *See* Convention on the Safety of United Nations and Associated
    Personnel, art. 1(b)(i), U.N. Doc. A/49/742 (Dec. 2, 1994)
    \[hereinafter Safety of U.N. and Associated Personnel Convention\].
    For further discussion, *see supra* note Error: Reference source not
    found and accompanying text. *See also* U.N. General Assembly
    Resolution 43/131 (1988); s*ee also* Evan T. Bloom, *Current
    Development: Protecting Peacekeepers: The Convention on the Safety
    of United Nations and Associated Personnel*, [Am. J. of Int'l
    L.]{.smallcaps} 621, 624 (July 1995) (Evan Bloom, then the Attorney
    Advisor for United Nations Affairs, Office of the Legal Advisor,
    United States Department of State, and a member of the delegation
    that negotiated the Convention on the Safety of United Nations and
    Associated Personnel, uses the term when classifying NATO in his
    article on the Convention); *see also* *Stakeholders in the Postal
    Sector*, Discussion Paper Presented by the United States of America
    at the XVIII Congress of the Postal Union of the Americas, Spain and
    Portugal, Sept. 6-12, 2000, Panama (Bureau of International
    Organization Affairs, U.S. Dep't of State) released Sept. 28, 2000
    by Jeffrey D. Kovar, Asst. Legal Adv. for Private Int'l Law (L/PIL),
    Office of the Legal Advisor, U.S. Dep't of State, (on file at the
    Air Force Judge Advocate General School, Maxwell AFB, Ala.)
    \[hereinafter *Stakeholders in the Postal Sector*\]; *see also*
    Julie Mertus, *The State and the Post-Cold War Refugee Regime: New
    Models, New Questions*, 20 [Mich. J. Int'l L.]{.smallcaps} 59, 69
    (Fall 1998).

[^99]: *Stakeholders in the Postal Sector*, *supra* note Error:
    Reference source not found; JP 3-08, *supra* note Error: Reference
    source not found, Vol. II, at II-20.

[^100]: Mertus, *supra* note Error: Reference source not found, at 71
    (quoting [The Office of the United Nations High Commissioner for
    Refugees (UNHCR), The State of the World\'s Refugees: A Humanitarian
    Appeal]{.smallcaps} 1997-1998, 22 (Oxford University Press 1997);
    *See also* Gil Loescher, *The International Refugee Regime Stretched
    to the Limit*?, 47 [J. Int\'l Aff.]{.smallcaps} 351, 363 (1994).

[^101]: Additional Protocol I, art. 73, *supra* note Error: Reference
    source not found.

[^102]: Susan F. Martin & Andrew I. Schoenholtz, *Asylum in Practice:
    Successes, Failures, and the Challenges Ahead*, 14 [Geo. Immigr.
    L.J]{.smallcaps}. 589 (Spring 2000).

[^103]: [Gasser, Handbook of Humanitarian Law]{.smallcaps}, *supra* note
    Error: Reference source not found, at 286.

[^104]: Geneva Convention IV, art. 44, *supra* note Error: Reference
    source not found; [Gasser, Handbook of Humanitarian
    Law]{.smallcaps}, *supra* note Error: Reference source not found, at
    286

[^105]: Geneva Convention IV, art. 44, *supra* note Error: Reference
    source not found; [Gasser, Handbook of Humanitarian
    Law]{.smallcaps}, *supra* note Error: Reference source not found, at
    286.

[^106]: Convention Relating to the Status of Refugees, July 28, 1951,
    art. 1A(2), 189 U.N.T.S. 137 \[hereinafter U.N. Refugee
    Convention\], presently applicable through Protocol I Relating to
    the Status of Refugees, Jan. 31, 1967, art. 1, 606 U.N.T.S. 267
    \[hereinafter Refugee Protocol I\]. This definition is reasserted in
    Refugee Protocol I and expanded only in that a small geographic and
    time limit restriction was removed. The U.S. ratified the Protocol
    in 1968.

[^107]: Convention Governing the Specific Aspects of Refugee Problems in
    Africa of Sept. 10, 1969, 1001 U.N.T.S. 45 (entered into force June
    20, 1974) \[hereinafter OAU Refugee Convention\]. This Convention is
    a regional supplement to the 1951 U.N. Refugee Convention and has
    been adopted by more than 40 African states. Regional agreements and
    documents also exist for other parts of the world and must be
    consulted if the judge advocate is addressing issues in those
    regions, such as The 1984 Cartagena Declaration on Refugees, which
    broadened the U.N. Refugee Convention's definition of refugee to
    include persons fleeing events which seriously disrupt public order,
    such as armed conflicts and disturbances. Cartagena Declaration on
    Refugees, art. III3, adopted at a colloquium entitled "*Coloquio
    Sobre la Proteccion Internacional de los Refugiados en American
    Central, Mexico y Panama: Problemas Juridicos y Humanitarios*" (on
    file with the UNHCR, but *available at*
    http://www.unhcr.ch/refworld/
    refworld/legal/instrume/asylum/cart_eng.htm) (on file with author).
    This Central American declaration refers to the OAU Refugee
    Convention definition as precedence and adopts the same expansive
    language as the OAU. *See also,* Principles Concerning Treatment of
    Refugees, the 8^th^ session of the Asian-African Legal Consultative
    Committee, Bancock 1966 (on file with the UNHCR, *available at*
    http://www.unhcr.ch/refworld/refworld/legal/instrume/asylum/
    treat_eng.htm) (on file with author); Declaration on the Protection
    of Refugees and Displaced Persons in the Arab World, adopted by The
    Group of Arab Experts, *Fourt Arab Suminar*, on "Asylum and Refugee
    Law in the Arab World", Arab Republic of Egypt, Nov. 16-19, 1992 (on
    file with the UNHCR).

[^108]: [Office Of The United Nations High Commissioner For Refugees,
    Handbook on Procedures and Criteria for Determining Refugee
    Status]{.smallcaps}, Ch. 1, (on file with the Air Force Judge
    Advocate General School, Maxwell AFB, Ala.).

[^109]: U.N. Refugee Convention, art. 35, *supra* note Error: Reference
    source not found; OAU Refugee Convention, art. 8, *supra* note
    Error: Reference source not found.

[^110]: [Commentary on the Additional Protocols of 8 June 1977 to the
    Geneva Conventions of 12 August 1949,]{.smallcaps} art. 73 at 852
    (Yves Sandoz, Christophe Swinarski, Bruno Zimmermann eds., 1987)
    \[hereinafter [Commentary, Additional Protocols]{.smallcaps}\].

[^111]: Convention Relating to the Status of Stateless Persons, Sept.
    28, 1954, art. 1, 360 U.N.T.S. 117 \[hereinafter 1954 Convention on
    Stateless Persons\]. The U.S. is not a party to this agreement,
    although as of Feb. 15, 2001, 53 other states, including the United
    Kingdom, Germany and France are parties.

[^112]: [Commentary, Additional Protocols]{.smallcaps}, *supra* note
    Error: Reference source not found, at 850.

[^113]: Jean-Philippe Lavoyer, *Guiding Principles on Internal
    Displacement*, 324 [Int'l Rev. of the Red Cross]{.smallcaps} 467-480
    (Sep. 30, 1998).

[^114]: *See id*.

[^115]: [Roberta Cohen, Refugee and Internally Displaced Women: A
    Development Perspective]{.smallcaps} (1995).

[^116]: Lavoyer, *supra* note Error: Reference source not found; Guiding
    Principles on Internal Displacement, U.N. Doc. E/CN.4/1998/53/Add.2,
    Feb. 11, 1998 \[hereinafter Guiding Principles\].

[^117]: *Milosevic: Accused Mastermind of Ethnic Cleansing*, CNN.com
    (Mar. 31, 2001) *available at* http://europe.cnn.com/2001/
    WORLD/europe/03/30/milosevic.profile/ (last visited Nov. 14, 2001)
    (on file with the Air Force Law Review).

[^118]: [Serge Lazareff, Status of Military Forces Under Current
    International Law]{.smallcaps} 77 (1971).

[^119]: Major Michael Guillory examines this issue in more detail in his
    companion law review article entitled "*Civilianizing the Force: Is
    the United States Crossing the Rubicon?"* also found this volume at
    111.

[^120]: Parks, *supra* note Error: Reference source not found, at 188
    (quoting James Maloney Spaight, 1911).

[^121]: Eply, *supra* note Error: Reference source not found, at 1-6.

[^122]: Zamparelli, *supra* note Error: Reference source not found, at
    10

[^123]: *Id.* at 9.

[^124]: Civilian personnel have been employed in frontline maintenance
    of combat aircraft and vital warfighting systems such as Patriot,
    JSTARS, and M1A1 Tank. *Id.* at 16. The Patriot Missile Battery is a
    ballistic missile system used for air defense. The JSTARS aircraft
    provides surveillance, command and control, and attack support to
    ground and air commanders. The Abrams M1A1 Tank is the main battle
    tank of the U.S. Army and the U.S. Marine Corps.

[^125]: Mattox & Guinn, *supra* note Error: Reference source not found
    (regarding contracted helicopter crews and machinery during
    INTERFET); Palmer, *supra* note Error: Reference source not found
    (regarding contractor support in Bosnia arriving on scene within 30
    minutes of combat arms operations); Zamparelli, *supra* note Error:
    Reference source not found, at 9, 11, 16 (regarding all listed
    contractor activities generally, and specifically intelligence and
    information support, movements toward contracting for all Air Force
    F-117 maintenance, and support for JSTARS and Patriot).

[^126]: This is true despite the oft-quoted dismissal of international
    law by Carl von Clausewitz: "War is an act of force to compel our
    enemy to do our will . . . attached to force are certain
    self-imposed, imperceptible limitations hardly worth mentioning,
    known as international law and custom, but they scarcely weaken it."
    [Carl von Clausewitz, On War]{.smallcaps} 75 (Michael Howard & Peter
    Paret trans., 1989). Throughout history, except for brief periods,
    there have been highly-ritualized practices associated with war.
    *See generally*, [Michael Howard, The Laws of War: Constraints on
    Warfare in the Western World 1]{.smallcaps} (Michael Howard, George
    J. Andreopoulos, & Mark R. Shulman eds., 1994).

[^127]: The phrase \"law of armed conflict\" is used broadly and
    synonymously in this article with \"law of war,\" \"humanitarian
    law,\" and \"international humanitarian law.\" Although originally
    the law of war or armed conflict was distinct from humanitarian law,
    these terms have become blurred in international law. Adam Roberts &
    Richard Guelff, *1977 Geneva Protocol I Additional to the Geneva
    Conventions of 12 August 1949, and Relating to the Protection of
    Victims of International Armed Conflicts,* [Documents on the Laws of
    War]{.smallcaps} 419, Prefatory Note (2000). *See also* Additional
    Protocol I, art. 2(b), *supra* note Error: Reference source not
    found (defining "rules of international law applicable in armed
    conflict" as "rules applicable in armed conflict set forth in
    international agreements to which the Parties to the conflict are
    Parties and the generally recognized principles and rules of
    international law which are applicable to armed conflict." Parties
    to a conflict are often referred to as "combatants," "belligerents,"
    the "enemy," or "adverse party." [Green]{.smallcaps}, *supra* note
    Error: Reference source not found, at 84.

[^128]: Air Force Policy Directive 51-4, Compliance with the Law of
    Armed Conflict ¶ 1 (26 April 1993) \[hereinafter AFPD 51-4\].

[^129]: [Howard]{.smallcaps}, *supra* note Error: Reference source not
    found, at 2, 4.

[^130]: *See* AFPD 51-4, *supra* note Error: Reference source not found,
    ¶ 1.

[^131]: The U.N. Security Council has repeatedly permitted the use of
    force to create "safe areas" for relief efforts. For operations in
    Bosnia and Herzegovina the Security Council mandated the use of
    force to create and protect safe areas to ensure the protection of
    civilian populations. *See* U.N. SCOR S/RES/792 (1993). Later, the
    U.N. authorized "all necessary measures, through the use of air
    power, in an around the safe areas in the Republic of Bosnia and
    Herzegovina...and the Republic of Croatia." U.N. SCOR S/RES/958
    (1994). The United Nations Security Resolution for Operation Restore
    Hope in Somalia authorized "all means necessary" to create a "secure
    environment" necessary for relief. U.N. SCOR S/RES/794 (1992).

[^132]: Geneva Conventions I -- IV, art. 2, *supra* notes Error:
    Reference source not found and Error: Reference source not found.

[^133]: Chairman of the Joint Chiefs of Staff Instruction 5810.01A,
    Implementation of the DOD Law of War Program ¶ 5a. (Aug. 27, 1999);
    *See also* Chairman of the Joint Chiefs of Staff Instruction
    3121.01A, Standing Rules of Engagement for U.S. Forces, A-2 ¶ 1g
    (Jan. 15, 2000) \[hereinafter CJCS Inst. 3121.01A\]; Dep't Of
    Defense Directive 5100.77, DOD Law of War Program (Dec. 9, 1998)
    \[hereinafter DODD 5100.77\]; AFPD 51-4, *supra* note Error:
    Reference source not found, ¶ 2; Memorandum from W. Hays Parks,
    Special Assistant to The Judge Advocate General of the Army for
    International and Operational Law, Just Cause Law of War Obligations
    Regarding Panamanian Civilian Wounded and Dead (Oct. 1, 1990);
    United States v. Noriega, 808 F. Supp. 791, 795 (S.D. Fla. 1992)
    (holding that Operation Just Cause was "armed conflict" for the
    purposes of the Geneva Conventions despite that it was not between
    two state actors).

[^134]: *See generally,* [Green]{.smallcaps}, *supra* note Error:
    Reference source not found, at 85. Some commentators separate
    civilians from non-combatants, while others group civilians under
    non-combatants. This article does the latter. [Knut Ipsen, The
    Handbook of Humanitarian Law in Armed Conflicts]{.smallcaps} 65, 66
    (Dieter Fleck ed., 1995).

[^135]: [Ipsen]{.smallcaps}, *supra* note Error: Reference source not
    found, at 65.

[^136]: *See* [A.P.V. Rogers, Law on The Battlefield]{.smallcaps} 8
    (1996) ("The current definition of a combatant is any member of the
    armed forces of a party to the conflict except medical personnel and
    chaplains. All other persons are considered to be civilians."
    (citing Additional Protocol I, art. 43 ¶ 2, and art. 50 ¶ 1, *supra*
    note Error: Reference source not found).

[^137]: The 1907 Hague Convention No. IV Respecting the Laws and Customs
    of War on Land, Oct. 18, 1907, art. 3, 36 Stat. 2277, 205 Consol.
    T.S. 277 \[hereinafter Hague IV\] (in attached regulations);
    Additional Protocol I, art. 43, *supra* note Error: Reference source
    not found; [Ipsen,]{.smallcaps} *supra* note Error: Reference source
    not found, at 66. Participants in *levee en masse* are the only
    lawful civilian combatants. Hague IV, art. 2, *supra* note Error:
    Reference source not found; Geneva Convention III, art. 4, *supra*
    note Error: Reference source not found. To qualify as *levee en
    mass* and therefore, combatants, the persons taking part in
    hostilities must meet four requirements: 1) armed resistance that
    occurs only in territory which is not under the factual control of
    the enemy, such as an occupation; 2) the taking up of arms must be
    spontaneous on the approach of the enemy; 3) the state and
    individuals being invaded must not have had time to organize a
    militia or volunteer corps; and 4) the participants in the *levee en
    masse* must conform to the law of armed conflict and applicable
    international law.

[^138]: Hague IV, *supra* note Error: Reference source not found; Geneva
    Convention III, art. 4A(2), *supra* note Error: Reference source not
    found. Additional Protocol I, art. 44 ¶ 3, *supra* note Error:
    Reference source not found, attempts to amend customary
    international, Hague and Geneva law in this area in several ways,
    notably by indicating that armed irregulars needn't always
    distinguish themselves from civilians and by removing the
    requirement for adherence to the law of armed conflict for certain
    organizations although this requirement was retained for states.
    *See* Letter from George P. Shultz, Secretary of State, to President
    Ronald Reagan (Dec. 13, 1986) (on file with Mr. W. Darrell Phillips,
    Chief, International and Operations Law Division, Air Force Judge
    Advocate General School, Maxwell Air Force Base, Ala.) (forwarding
    the text of Additional Protocol II along with detailed analysis and
    recommended understandings and reservations); s*ee* *also* Parks,
    *supra* note Error: Reference source not found, at 97.

[^139]: Additional Protocol I, art. 43 ¶ 2, *supra* note Error:
    Reference source not found; Hague IV, *supra* note Error: Reference
    source not found. Hague IV has generally been accepted to develop
    into customary international law. *See* Guy B. Roberts, *The New
    Rules for Waging War: The Case Against Ratification of Additional
    Protocol I*, 26 [Va. J. Int'l L]{.smallcaps}. 113, n. 27 (1985);
    Geneva Convention III, art. 4A(4), *supra* note 2.

[^140]: [Ipsen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 68.

[^141]: Geneva Convention I, arts. 28, 30, *supra* note 2; Geneva
    Convention II, arts. 36, 37, s*upra* note Error: Reference source
    not found; Geneva Convention III, art. 33, *supra* note 2;
    Additional Protocol I, art. 43, *supra* note 2; *see also* [Gasser,
    Handbook of Humanitarian Law]{.smallcaps}, *supra* note Error:
    Reference source not found, at 209-210; [Ipsen,]{.smallcaps} *supra*
    note Error: Reference source not found, at 67. Other examples of
    non-combatants are those *hours de combat* due to being shipwrecked,
    wounded, or sick.

[^142]: JP 4-0, *supra* note Error: Reference source not found, at V-I.

[^143]: [Rogers]{.smallcaps}, *supra* note Error: Reference source not
    found, at 8; Additional Protocol I, art. 50, *supra* note 2; s*ee
    also* Parks, *supra* note 2, at 116-145. Civilians participating in
    *levee en masse* are combatants and may be attacked as such.

[^144]: Additional Protocol I, art. 48, *supra* note 2; Parks, *supra*
    note 2, at 113.

[^145]: Additional Protocol I, art. 52(2), *supra* note 2.

[^146]: Meaning out of action or disabled. [Houghton Mifflin Co., The
    American Heritage Dictionary of the English Language
    (]{.smallcaps}4^th^ ed. 2000).

[^147]: While in previous times, the \"front lines\" of combat were the
    danger zones and those in the rear were practically immune from the
    rigors of war, air forces and modern technology allow long-range,
    precision, and stealth targeting of individuals far removed from a
    ground element. In reality, lawful targets are not safe from the
    global reach of military forces except when constrained by political
    considerations.

[^148]: Additional Protocol I, art. 51 ¶ 7, *supra* note 2; AFPAM
    10-231, *supra* note Error: Reference source not found, ¶ 6.3.3.

[^149]: Additional Protocol I, art. 58(a), *supra* note 2. The U.S.
    State Department has not objected to this provision. Additional
    Protocol I has several articles that protect civilians. The U.S.
    signed Additional Protocol I on Dec. 12, 1977, but has not ratified
    it and is therefore only legally bound to provisions that reflect
    customary international law. *See The Sixth Annual American Red
    Cross-Washington College of Law Conference on International
    Humanitarian Law: A Workshop on Customary International Law and the
    1977 Protocols Additional to the 1949 Geneva Conventions*, 2 [Am. U.
    J. Int'l L. & Pol'y]{.smallcaps} 416, 428 (1987) (remarks of U.S.
    Department of State Deputy Legal Advisor, Mr. Michael Matheson)
    \[hereinafter U.S. State Dep't Remarks\]. Because the U.S. has
    objected to the applicability of Additional Protocol I to wars of
    national liberation, this article will examine the provisions the
    U.S. has not objected to only in terms of international armed
    conflict, unless otherwise noted. Letter from Secretary of State to
    President Ronald Reagan, *supra* note Error: Reference source not
    found; of note, many U.S. allies have ratified Additional Protocol I
    and are therefore bound by it, complicating the face of allied and
    coalition operations. Major Robert A. Ramey, *Armed Conflict on the
    Final Frontier: The Law of War in Space,* 48 [A.F. L.
    Rev.]{.smallcaps} 1, 56 (2000).

[^150]: Geneva Convention III, art. 4A(4), *supra* note 2.

[^151]: Additional Protocol I, art. 48, *supra* note 2;
    [Green]{.smallcaps}, *supra* note Error: Reference source not found,
    at 105.

[^152]: *Id.*; Annotated Supplement to [The Commander's Handbook on the
    Law of Naval Operations]{.smallcaps} 73 (A.R. Thomas & James C.
    Duncan eds., Supp. 1999) \[hereinafter 1999 Supp. to [Naval
    Commander's Handbook]{.smallcaps}\].

[^153]: Additional Protocol I, art. 51 ¶ 3, *supra* note 2; Geneva
    Convention IV, art. 5 ¶ 3, *supra* note 2; Protocol Additional to
    the Geneva Conventions of Aug. 12, 1949, and Relating to the
    Protection of Victims of Non-International Armed Conflicts, Dec. 12,
    1977, art. 13, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978)
    \[hereinafter Additional Protocol II\]; [Green,]{.smallcaps} *supra*
    note Error: Reference source not found, at 102; *see* U.S. State
    Dep't Remarks, *supra* note Error: Reference source not found. For
    non-international armed conflict, the U.S. supports Additional
    Protocol II, art. 13, that protects civilians from being the object
    of attack, violence, or threats of violence, as long as they do not
    "take a direct part in hostilities." *See* Letter from Secretary of
    State to President Ronald Reagan, *supra* note Error: Reference
    source not found.

[^154]: DA Pam. 690-47, *supra* note Error: Reference source not found,
    § 1-22, Geneva Convention, Prisoner of War Status,
    Combatant/Non-Combatant Status.

[^155]: [Commentary, Additional Protocols]{.smallcaps}, *supra* note
    Error: Reference source not found, at 619.

[^156]: 1999 Supp. to [Naval Commander's Handbook]{.smallcaps}, *supra*
    note Error: Reference source not found, at 484.

[^157]: *Id.; c.f.* [Rogers]{.smallcaps}, *supra* note 2, at 132.

[^158]: [Ipsen]{.smallcaps}, *supra* note Error: Reference source not
    found, at 67.

[^159]: 1999 Supp. to [Naval Commander's Handbook]{.smallcaps}, *supra*
    note Error: Reference source not found, at 484.

[^160]: Additional Protocol I, art. 51, *supra* note 2; *see also*
    [Gasser, Handbook of Humanitarian Law,]{.smallcaps} *supra* note
    Error: Reference source not found, at 233; [Green,]{.smallcaps}
    *supra* note Error: Reference source not found, at 102.

[^161]: Recall that the right of the use of force in self-defense
    extends even over civilians and applies when there is a hostile act
    or demonstration of hostile intent. CJCS Inst. 3121.01A, *supra*
    note Error: Reference source not found, ¶ 7.

[^162]: *See* Parks, *supra* note 2, at 132 (discussing the ground
    argument).

[^163]: This is a relatively simplified scenario. Several factors can
    complicate the analysis, such as the degree of immanence of the
    threat and the need for self-defense.

[^164]: Preliminary attempts to draw a line more clearly between
    civilians who contribute to the "war effort" and civilians who
    directly participate in military operations were rejected during the
    drafting of Additional Protocol I because of concern that a new
    category of civilian would be created, neither combatants nor
    civilians[.]{.smallcaps} Bothe et al[.,]{.smallcaps} *New Rules for
    Victims of Armed Conflicts*[, The Hague]{.smallcaps} 260, 294,
    nn.1&8 (1982) (citing Int'l Comm. of the Red Cross, Conf. of Gov't
    Experts Rep. vol. I ¶ 3.1117, 1972).

[^165]: 1999 Supp. to [Naval Commander's Handbook]{.smallcaps}, *supra*
    note Error: Reference source not found, at 484.

[^166]: *See* Parks, *supra* note 2, at 132.

[^167]: [Rogers,]{.smallcaps} *supra* note Error: Reference source not
    found[,]{.smallcaps} at 8-9.

[^168]: *Id.*

[^169]: *See* [Commentary, Additional Protocols]{.smallcaps}, *supra*
    note 109.

[^170]: *Id.* at 619; *See also* [Rogers]{.smallcaps}, *supra* note
    Error: Reference source not found, at 8.

[^171]: *Id.*

[^172]: U.S. State Dep't Remarks, *supra* note Error: Reference source
    not found. In fact, the U.S. Army Judge Advocate General School
    teaches these provisions are probably customary international law
    and, therefore, binding. Capt Jeanne Meyer, *Protection of Civilians
    During Armed Conflict*, [International and Operational Law Basic
    Course Deskbook]{.smallcaps} 9-9 (Int'l & Operational L. Dep't, The
    Judge Advocate General's School, United States Army, 2000).

[^173]: JP 4-0, *supra* note Error: Reference source not found, at V-1.

[^174]: *Id.* at V-7.

[^175]: Hague IV, art. 3, *supra* note Error: Reference source not
    found.

[^176]: *Supra* note 163; *see also* [Commentary, Additional
    Protocols]{.smallcaps}, *supra* note 109, at 515, ("All members of
    the armed forces are combatants. This should therefore dispense with
    the concept of 'quasi-combatants.'")

[^177]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    6.3.3.

[^178]: Interim Policy Memorandum---Contractors in the Theater, *supra*
    note Error: Reference source not found. It is not Air Force policy
    to target civilians. Interview with Ms. Marcia Bachman, SAF/GC, Jan.
    14, 2002.

[^179]: Parks, *supra* note 2, at 134 n. 400 (citing letter from DAJA-IA
    to Counselor for Defense Research and Engineering (Economics),
    Embassy of the Federal Republic of Germany (Jan. 22, 1988)).

[^180]: Parks, *supra* note 2, at 132 ("the work of some civilians has
    become so critical to military success that those individuals are
    civilians in name and garb only").

[^181]: *Protecting Human Rights During Military Operations*, [48^th^
    Graduate Course Deskbook]{.smallcaps} 15-3 (Int'l & Operational L.
    Dep't, The Judge Advocate General's School, United States Army,
    2000) (providing the example of civilians subject to attack).

[^182]: 1999 Supp. to [Naval Commander's Handbook]{.smallcaps}, *supra*
    note Error: Reference source not found, at 484 n.14, and
    accompanying text. Like the Air Force, in 1991 the Navy published
    documents with unclear language, stating

    > Unlike military personnel . . . civilians are immune from attack
    > unless they are acting in direct support of the enemy's
    > war-fighting or war-sustaining effort. Civilians providing
    > command, administrative, or logistic support to military
    > operations are subject to attack while so engaged. Similarly,
    > civilian employees of naval shipyards, merchant seamen in ships
    > carrying military cargos, and laborers engaged in the construction
    > of military fortifications, may be attack \[sic\] while so
    > employed.

    [Commander's Handbook on the Law of Naval Operations]{.smallcaps} ¶
    11.3 (cited in *The Law of Naval Operations* 64, [International Law
    Studies]{.smallcaps} 309 (Horace B. Robertson, Jr., ed., 1991)). The
    commentary published by the Naval War College Press criticized the
    unclear language as leading to a possible incorrect interpretation
    of international law that civilians in roles other than those taking
    direct part in hostilities may be intentionally targeted. *Id.* at
    310.

[^183]: Parks, *supra* note 2, at 135.

[^184]: *See id.* at 134; [Rogers]{.smallcaps}, *supra* note Error:
    Reference source not found, at 8.

[^185]: *See* Major Michael Guillory, *Civilianizing the Force: Is the
    United States Crossing the Rubicon?,* this volume, for an in-depth
    look at these and other questions.

[^186]: [Green]{.smallcaps}, *supra* note Error: Reference source not
    found, at 105.

[^187]: [Law Reports of Trial of War Criminals (]{.smallcaps}vol. XV)
    111 (1949) (stating during the U.S. Military Tribunal at Nuremberg
    after World War II "the rule is established that a civilian who
    aids, abets, or participates in the fighting is liable to punishment
    as a war criminal under the laws of wars." Fighting is legitimate
    only for the combatant personnel of a country).

[^188]: President Clinton signed the treaty on Dec. 31, 2000. As of Aug.
    31, 2001, 139 states have signed the treaty, including every member
    of the European Union and most other major allies, such as Canada
    and Australia, and 37 states have ratified the treaty. Status of
    ratification of the International Criminal Court Rome Treaty is
    *available at* http://www.un.org/law/icc/statute/status.htm (last
    visited Nov. 14, 2001) (on file with the Air Force Law Review).

[^189]: *Id.*

[^190]: *See* Parks, *supra* note 2, at 118.

[^191]: DODD 5100.77*, supra* note Error: Reference source not found, ¶
    4 ; AFPD 51-4, *supra* note Error: Reference source not found, ¶ 2.

[^192]: DODD 5100.77*, supra* note Error: Reference source not found, ¶
    5.8; AFPD 51-4, *supra* note Error: Reference source not found, ¶ 5.

[^193]: *See* [Green]{.smallcaps}, *supra* note Error: Reference source
    not found, at 102.

[^194]: [Pilloud]{.smallcaps}, *supra* note 60, at 922.

[^195]: *Id.*

[^196]: Gasser, P*rotection of Journalists*, *supra* note Error:
    Reference source not found, at 3-18.

[^197]: Nelson, *supra* note Error: Reference source not found, at 7
    (quoting Rear Admiral Henry E. Eccles).

[^198]: JP 1-02, *supra* note Error: Reference source not found. This
    has been so since the time of the great Roman Army. "The centurion
    replied...'For I myself am a man under authority, with soldiers
    under me. I tell this one, 'Go,' and he goes; and that one, 'Come,'
    and he comes.'" *Matthew 8:8-9* (New International Version)*.*

[^199]: JP 1-02, *supra* note Error: Reference source not found.

[^200]: 10 U.S.C. § 801 (May 5, 1950).

[^201]: Reid v. Covert, 354 U.S. 1222 (1957); 10 U.S.C. § 802, art.
    2a(10), Uniform Code of Military Justice (May 5, 1950); *See also*
    Rules for Courts-Martial 202, Persons Subject to the Jurisdiction of
    Courts-Martial, Discussion, [Manual for Courts-Martial
    (2000]{.smallcaps} ed.) at II-13.

[^202]: U.S. v. Averette, 19 U.S.C.M.A. 363, 41 C.M.R. 363 (1970)
    (holding that there was no court-martial jurisdiction over an Army
    contractor employee serving in Vietnam). Of note, World War II was
    the last declared war in which the U.S. was involved.

[^203]: DODD 1400.31, *supra* note 10, ¶ D.4; AFPAM 10-231, *supra* note
    Error: Reference source not found, ¶ 1.5; DA Pam. 690-47, *supra*
    note Error: Reference source not found, § 1-4, Command and Control.

[^204]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    1.5.

[^205]: *Id.*

[^206]: DODD 1404.10, *supra* note Error: Reference source not found, at
    6.2.

[^207]: Reassignment or detailing should occur as reasonably practicable
    and consistent with the needs of the military, and any tour
    extensions should be disapproved. DODD 1404.10, *supra* note Error:
    Reference source not found, at 4.7.

[^208]: These benefits may include Morale, Welfare and Recreation (MWR)
    privileges, exchange, commissary, and check cashing privileges. For
    example, if a civilian gets into fights at the club, he can be
    barred from the club while still permitted to perform his duties.
    The right of a commander "to avert what he perceives to be a clear
    danger to the loyalty, discipline, or morale of troops on the base
    under his command" was recognized in *United States v. Spock*, 424
    U.S. 824 (1976). *See also* Cafeteria & Restaurant Workers Union v.
    McElroy, 367 U.S. 886 (1961).

[^209]: 5 U.S.C. §§ 7504, 7514, 7543 (Oct. 13, 1978); Office of
    Personnel Management's (OPM) implementing regulations in 5 C.F.R.,
    Part 752, Subparts A-D, Adverse Actions, (Jan. 1, 1997 ed.); DODD
    1404.10, *supra* note Error: Reference source not found, DD Form
    2365 at encl. 3.

[^210]: DP/DPXC Message, *supra* note Error: Reference source not found,
    § 7(A).

[^211]: *See generally* 5 U.S.C. §§ 7504, 7514, 7543, *supra*, note
    Error: Reference source not found; 5 C.F.R. Part 752, *supra* note
    Error: Reference source not found; AFPD 36-7, Employee and
    Labor-Management Relations (Jan. 11, 1994); Air Force Instruction
    36-704, Discipline and Adverse Actions (July 22, 1994).

[^212]: Kathleen A. Bannister, *One-Stop Shopping at CECOM*, [Army Log.
    (]{.smallcaps}Jan.-Feb. 1999).

[^213]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 143.

[^214]: Army Pamphlet 715-16, *Contractor Deployment Guide* (Feb. 27,
    1998) \[hereinafter DA Pam. 715-16\].

[^215]: JP 4-0, *supra* note Error: Reference source not found, at V-I;
    s*ee generally* General Servs. Admin. et al., [Federal Acquisition
    Reg]{.smallcaps}. 1.602 (Apr. 1, 1984 as amended) \[hereinafter
    FAR\] (regarding contracting and contracting officers); AR 715-9,
    *supra* note Error: Reference source not found, ¶ 3-2f; Lieutenant
    Colonel Douglas P. DeMoss, *Procurement During the Civil War and Its
    Legacy for the Modern Commander*, [The Army Lawyer]{.smallcaps} 9
    (Mar. 1997) (an interesting historical examination of why
    contracting rules, such as the use of a contracting officer,
    developed and how they are useful today).

[^216]: JP 4-0, *supra* note Error: Reference source not found, at V-I;
    Dep't of the Army, Memorandum Subject: Policy Memorandum --
    Contractors on the Battlefield (Dec. 12, 1997) (reprinted in FM
    100-10-2, *supra* note Error: Reference source not found, Appendix
    F, and FM 100-21, *supra* note Error: Reference source not found,
    Appendix C) \[hereinafter Army Policy on Contractors on the
    Battlefield\].

[^217]: DODI 3020.37, *supra* note Error: Reference source not found, ¶
    6.1.

[^218]: DA Pam. 715-16, *supra* note Error: Reference source not found,
    ¶ 1-5b. In Operation Uphold Democracy, contractors were subject to
    General Order Number One and prohibited from possessing
    privately-owned firearms, drinking alcohol, gambling, eating in
    local Haitian restaurants, and having intimate relations with
    Haitian locals. CLAMO Haiti Lessons Learned, *supra* note Error:
    Reference source not found, at 143.

[^219]: DA Pam. 715-16, *supra* note Error: Reference source not found,
    ¶ 1-5c.

[^220]: AR 715-9, *supra* note Error: Reference source not found, ¶
    3-1a; Army Policy on Contractors on the Battlefield, *supra* note
    Error: Reference source not found; FM 100-10-2, *supra* note Error:
    Reference source not found; DA Pam. 715-16, *supra* note Error:
    Reference source not found, ¶ 1-5c.

[^221]: *See generally* FAR, *supra* note Error: Reference source not
    found, Part 43 (Contract Modifications).

[^222]: [Joint Task Force Commander's Handbook for Peace
    Operations]{.smallcaps}, *supra* note Error: Reference source not
    found, at VI-16.

[^223]: *See* FAR, *supra* note Error: Reference source not found, at
    1.602-1.

[^224]: *See id.* at 1.602-3 (ratification actions), 50.302(d) (service
    secretarial compensation), 50.302-3 (informal commitment actions);
    31 U.S.C. § 1342, Voluntary Payments-Government Reimbursement
    Liability; B-115761, 33 Comp. Gen. 20 (1953) (GAO claims).

[^225]: JP 4-0, *supra* note Error: Reference source not found, at V-3;
    AR 715-9, *supra* note Error: Reference source not found, ¶2-2g
    (requiring all deliberate and crisis action plans to plan for
    continuation of services in the event of a contractor's failure to
    perform).

[^226]: *See, e.g.,* [Dep\'t Of Army Fed. Acquisition Reg.
    Supp]{.smallcaps}. 37.7096-3 (May 10, 1993) (discussing when
    contracting officer may require the contractor to remove contractor
    personnel from the job: "(a) for misconduct on or off duty, (b) for
    conduct reflecting adversely against the interests of the United
    States, (c) for conduct which endangers persons of property, or (d)
    whose continued employment under the contract is inconsistent with
    the interest of military security."); Steven Shaw, *Suspension and
    Debarment: The First Line of Defense Against Contractor Fraud and
    Abuse*, [The Reporter]{.smallcaps} v. 26, at 4-10, n.1 (discussing
    details of the procedures to exclude contractors from base or to
    suspend their contract).

[^227]: *See* AR 715-9, *supra* note Error: Reference source not found,
    ¶ 3-2f; DA Pam. 715-16, *supra* note Error: Reference source not
    found, ¶ 9-3.

[^228]: 18 U.S.C. § 3261, The Military Extraterritorial Jurisdiction Act
    of 2000 (Nov. 22, 2000). This bill also allows prosecution of a
    limited group of former military personnel. *See* Captain Glenn R.
    Schmitt, *The Military Extraterritorial Jurisdiction Act: The
    Continuing Problem of Criminal Jurisdiction over Civilians
    Accompanying the Armed Forces Abroad -- Problem Solved*? [The Army
    Lawyer]{.smallcaps} 1 (Dec. 2000).

[^229]: A federal offense punishable by one year or more within the
    jurisdiction of the U.S.

[^230]: 18 U.S.C. § 3261, *supra* note Error: Reference source not
    found.

[^231]: *Id.*

[^232]: Message from The Judge Advocate General, United States Air Force
    to The United States Department of the Judge Advocate General, TJAG
    Online News Service (Dec. 6, 2000) (on file with the Air Force Judge
    Advocate General School, Maxwell AFB, Ala.).

[^233]: For example, in 1996 a civilian from Misawa Air Base raped a
    twelve-year-old American girl. Since Japan declined to prosecute
    him, no criminal action could be taken against him and he was simply
    sent back to the U.S. *See* Technical Sergeant Chris Haug, *AF
    General Counsel Supports U.S. Jurisdiction Overseas*, [U.S. Online
    News]{.smallcaps} (Apr. 13, 2000), *available at*
    http://www.af.mil/newspaper/v2_n14_s7.htm (last visited Nov. 14,
    2001) (on file with the Air Force Law Review). In another incident,
    an Air Force civilian employee molested twenty-four children between
    the ages of 9 and 14. The host nation refused to prosecute the
    employee and he was barred from base. *See* Saxby Chamblis & Bill
    McCollum, *Joint Statement on the Introduction of the Military
    Extraterritorial Jurisdiction Act* (Dec. 12, 1999) (on file with the
    Air Force Judge Advocate General School, Maxwell AFB, Ala.).

[^234]: 18 U.S.C. § 3261, *supra* note Error: Reference source not
    found.

[^235]: In addition to current overburdening the U.S. federal criminal
    system, there are other factors creating pressure not to prosecute
    under this statute except in the most extreme circumstances. The
    practical problem of bringing in witnesses from thousands of miles
    away is compounded by the lack of subpoena power by U.S. district
    courts over foreign witnesses, although foreign civilian witnesses
    often voluntarily testify in military courts-martial. *See* Major
    Crawford, Thesis on the Military Extraterritorial Jurisdiction Act
    (2000) (unpublished thesis for LL.M., on file at The Army Judge
    Advocate General School); Susan S. Gibson, *Lack of Extraterritorial
    Jurisdiction Over Civilians: A New Look at an Old Problem*, 148
    [Mil. L. Rev.]{.smallcaps} 114 (1995).

[^236]: *See, e.g.,* 18 U.S.C. § 2441 (1996) (war crimes); 18 U.S.C. §
    32 (destruction of aircraft); 18 U.S.C. § 1341 (mail fraud); 18
    U.S.C. § 201 (bribery and graft); 18 U.S.C. § 2401 (grave breaches
    of the Geneva Conventions)*;* 18 U.S.C. § 793 (espionage); 18 U.S.C.
    § 1116 (murder or manslaughter of foreign officials, official
    guests, or internationally protected persons); 18 U.S.C. § 1201
    (kidnapping); 18 U.S.C. §§ 286, 287 (conspiracy to defraud the
    government); 18 U.S.C. §2332 (terrorism).

[^237]: JP 4-0, *supra* note Error: Reference source not found, at V-3;
    DODI 3020.37, *supra* note 47; FM 100-10-2, *supra* note Error:
    Reference source not found. They may fail to perform due to their
    desire to remove themselves from the hostilities, or because they
    are prevented from doing so due to a situation beyond their control.

[^238]: For example, contractors performed during Operations Desert
    Storm in Saudi Arabia; Uphold Democracy in Haiti and Restore Hope in
    Somalia. James C. Hyde, *Defense Contractors Serve on the Front
    Lines of Operations Desert Storm*, [Armed Forces J. Int'l 32
    (]{.smallcaps}Mar. 1999); CLAMO Haiti Lessons Learned, *supra* note
    Error: Reference source not found.

[^239]: Dowling & Feck, *supra* note Error: Reference source not found,
    at 63.

[^240]: *See* History of the U.S. Air Force's 8^th^ Fighter Wing
    (extract on file with the Air Force Judge Advocate General School,
    Maxwell AFB, Ala.); s*ee also* Eric A. Orsini & Lieutenant Colonel
    Gary T. Bublitz*, Contractors on the Battlefield: Risks on the Road
    Ahead?* [Army Log.]{.smallcaps} (Jan./Feb. 1999) *available at*
    http://www.almc.army.mil/alog/janfeb99/ms376.htm (on file with
    author).

[^241]: Orsini & Bublitz, *supra* note *Error: Reference source not
    found*.

[^242]: Major Melvin S. Hogan*,* Contractors in the Joint Theater: The
    Need for a Joint Doctrine 12 (Jan. 5, 1999) (unpublished manuscript,
    on file with the Air Force Judge Advocate General School).

[^243]: Major James P. Herson, Jr., *Road Warriors in the Balkans*,
    [Army Log]{.smallcaps}. (March-April 1997) *available at*
    http://www.almc.army.mil/alog/marapr97/ms113.htm (on file with
    author).

[^244]: Telephone Interview with Ms. Amy Barnett, Chief, Logistics
    Division, Close Combat Anti-Armor Weapons Project Office, Redstone
    Arsenal, Huntsville, Ala. with Major Michael Guillory \[hereinafter
    Barnett Telephone Interview\]. Raytheon will provide all maintenance
    support for the ITAS. Information is available at
    http://www.army-technology.com/projects (last visited Nov. 14, 2001)
    (on file with the Air Force Law Review).

[^245]: DODI 3020.37, *supra* note 47, ¶ 4.4, 6.5.

[^246]: Zamparelli, *supra* note Error: Reference source not found, at
    12.

[^247]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 79. Media training for judge advocates is
    available in a variety of forms and is highly encouraged.

[^248]: Army Field Manual 3-61.1, Public Affairs Tactics, Techniques and
    Procedures (Oct. 1, 2000) at Ch. 4 \[hereinafter FM 3-61.1\].

[^249]: [Joint Task Force Commander's Handbook for Peace
    Operations,]{.smallcaps} *supra* note Error: Reference source not
    found, at xxii.

[^250]: FM 3-61.1, *supra* note Error: Reference source not found, §§
    4-35, 4-36.

[^251]: [Joint Task Force Commander's Handbook for Peace
    Operations,]{.smallcaps} *supra* note Error: Reference source not
    found, at VIII-I (quoting General J. P. McCarthy, Deputy Commander
    in Chief, U.S. European Command).

[^252]: *Id.* at VIII-II.

[^253]: FM 3-61.1, *supra* note Error: Reference source not found, §
    4-13

[^254]: *Id.*at § 4-11, 4-13.

[^255]: The command and control rules for DOD civilian media members are
    set forth above under "Command, Control and Influence of Civilians,"
    *infra* Part III.A.2.

[^256]: *See, e.g.,* Lieutenant Colonel Murrell F. Stinnette, The
    Military and the Media in Combat: Winning the Hearts and Minds of
    the American Public (Apr. 10, 2000) (unpublished strategy research
    project, on file with U.S. Army War College).

[^257]: *See generally*, JP 3-61, *supra* note Error: Reference source
    not found.

[^258]: *Id.* at III-2; FM 3-61.1, *supra* note Error: Reference source
    not found, Ch. 4. *Cf.* National Magazine v. United States, 762
    F.Supp. 1558, 1572 (S.D.N.Y. 1991).

[^259]: *See generally*, [Pilloud]{.smallcaps}, *supra* note 60, at 921.

[^260]: JP 3-61, *supra* note Error: Reference source not found, at
    III-2. *See also*, Dep't of Defense Directive 5122.5, Assistant
    Secretary of Defense for Public Affairs (Sept. 27, 2000) Enclosure
    3, 1.4 \[hereinafter DODD 5122.5\]. Credentialing or registration is
    different and distinct from accreditation with a news organization
    or government.

[^261]: Krejcarek Telephone Interview, *supra* note 69.

[^262]: *Id.*

[^263]: *Id.*

[^264]: DODD 5122.5, *supra* note 259, ¶ 5.7.

[^265]: *See* "Media" *infra* Part II.C.1. (defining war correspondent
    and discussing the criteria for such designation); *see also* "Under
    Control of the Enemy" *infra* Part III.B. (regarding status upon
    capture).

[^266]: FM 3-61.1, *supra* note Error: Reference source not found, §
    4-47.

[^267]: JP 3-61, *supra* note Error: Reference source not found, at
    III-2.

[^268]: [Peter Young and Peter Jesser, The Media and the Military: From
    the Crimea to Desert Strike 175]{.smallcaps} (St. Martin's Press,
    New York, 1997).

[^269]: Approximately 10 percent of the media members with credentials
    were able to get to the front lines of Desert Storm. Stinnette,
    *supra* note 255, at 9.

[^270]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 79; *Strong-Arm Tactics Used to Curb War
    Reporting,* *supra* note 71.

[^271]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 79.

[^272]: JP 3-61, *supra* note Error: Reference source not found, at
    III-3; DODD 5122.5, *supra* note 259, Encl. 3, ¶ 1.4; FM 3-61.1,
    *supra* note Error: Reference source not found, §§ 4-38, 4-46.

[^273]: Dep't of Defense Directive 5400.13, Joint Public Affairs
    Operations ¶ 4.4.10 (Jan. 9, 1996) \[hereinafter DODD 5400.13\].

[^274]: McHugh, *supra* note 51, Appendix C; *See also* FM 3-61.1,
    *supra* note Error: Reference source not found, Appendix X (reprint
    of Operation Desert Storm Media Ground Rules).

[^275]: JP 3-61, *supra* note Error: Reference source not found, at
    III-3 (emphasis omitted); *See also*, DODD 5122.5, *supra* note 259,
    Encl. 3, ¶ 1.4. However, Robert Simon, the CBS media representative
    who violated the rules during Operation Desert Storm and who was
    consequently captured by the Iraqis, suffered, instead, the
    punishment of 40 days in an Iraqi prison. *See generally,* Jane
    Hall, *A 'Most Searing Experience'; Bob Simon Relives His 40 Days as
    Iraq's Hostage During the Gulf War In New Book,* [Los Angeles
    Times]{.smallcaps} F12C.1 (May 11, 1992).

[^276]: JP 3-61, *supra* note Error: Reference source not found, at
    III-3.

[^277]: *See* FM 3-61.1, *supra* note Error: Reference source not found,
    at ¶ 4-46.

[^278]: Krejcarek Telephone Interview, *supra* note 69; Walter V.
    Robinson, *Media, Military in War Over Words; War in the Middle
    East*, [The Boston Globe]{.smallcaps}, Jan. 23, 1991,
    National/Foreign 4.

[^279]: Robinson, *supra* note Error: Reference source not found.

[^280]: [Peter Young and Peter Jesser,]{.smallcaps} *supra* note 267, at
    189.

[^281]: JP 3-08, *supra* note Error: Reference source not found, at Vol.
    I, ¶ viii.

[^282]: *Id.*

[^283]: *Id.*

[^284]: *Id.*

[^285]: *Id.* ¶ I-9.

[^286]: *Id.*

[^287]: *See id.* CMOCs can be organized in a variety of ways and
    levels. For further discussion, *see* [Joint Task Force Commander's
    Handbook for Peace Operations]{.smallcaps}, *supra* note Error:
    Reference source not found and CLAMO Haiti Lessons Learned, *supra*
    note Error: Reference source not found, at 93. However, some in the
    NGO community have criticized Joint Doctrine and associated CMOCs
    as, at best, a necessary evil. *See* John Howard Eisenhour & Edward
    Marks*, Herding Cats: Overcoming Obstacles in Civil-Military
    Operations*, [Joint Forces Q.]{.smallcaps} 86-90 (Summer 1999);
    *cf.* Jean-Daniel Tauxe, The ICRC and Civil-Military Cooperation in
    Situations of Armed Conflict, Remarks to the 45^th^ Rose-Roth
    Seminar, Mantreaux (Mar. 2, 2000) available at
    http://www.icrc.org/icrceng.nsf/5cacfdf48

    ca698b641256242003b3295/986986d70b7667bb41256869004b0e46?OpenDocument/
    (last visited Nov. 14, 2001) (on file with the Air Force Law Review)
    (describing the ICRC view that CMOCs, or CIMICs as they term them,
    have been helpful, but reasserting that both the appearance and
    reality of NGO separation from the military is imperative).

[^288]: JP 3-08, *supra* note Error: Reference source not found, at Vol.
    I, ¶ III-19.

[^289]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 94.

[^290]: *Id.* at 95.

[^291]: *See* JP 3-08, *supra* note Error: Reference source not found,
    at Vol. I, ¶ I-9, I-11 (citing Operation Support Hope After Action
    Review, Headquarters USEUCOM).

[^292]: *See id.* ¶ I-14.

[^293]: *Id.*

[^294]: Security is addressed *infra* Part III.A.5., "Force Protection."

[^295]: Denton Amendment, 10 U.S.C. § 402 (Dec. 4, 1987 as amended).

[^296]: JP 3-08, *supra* note Error: Reference source not found, at Vol.
    I, ¶ II-20.

[^297]: Judge Advocates lecturing at the Air Force Judge Advocate
    General School between 1997 and 2000, when the authors were
    instructors at the School, often relayed stories of extraordinary
    measures taken to comply with fiscal restrictions while supporting
    humanitarian relief organizations in every and any way possible. For
    example, during food relief missions in Somalia, the U.S. not only
    transported humanitarian supplies for NGOs, but allowed some NGOs to
    put an enlarged emblem identifying the NGO owning the relief
    supplies on military airlift assets. The goal of the NGOs was
    allegedly to elicit more support and donations from the media
    viewing public as they saw the actual relief activities in which the
    NGO was involved.

[^298]: Farouk Mawlawi, *New Conflicts, New Challenges: The Evolving
    Role for Non-Governmental Actors*, 46 [J. Int'l Affairs]{.smallcaps}
    391 (Winter 1993).

[^299]: *Id.* Doctors Without Borders is such an organization.

[^300]: *See, e.g.,* Geneva Convention III, arts. 3, 9-11, *supra* note
    2; Additional Protocol I, arts. 5, 6, 33, 81, *supra* note 2. As
    another example, Geneva Convention IV, art. 23, *supra* note 2,
    protects the passage of relief stores destined for the civilian
    population of war-torn countries. Except in very limited
    circumstances, a state may not interfere with these supplies even
    when destined for the enemy's civilians. While this section
    addresses the articles themselves and not those transporting them,
    unimpeded harassment of humanitarian organizations transporting the
    supplies would effectively terminate the protections of this
    provision.

[^301]: Additional Protocol I, art. 81, *supra* note 2.

[^302]: *Id.* at art. 15.

[^303]: *Id.* at art. 17.

[^304]: *Id.*

[^305]: *Id.* at art. 81.

[^306]: *Id.*

[^307]: *Id.*

[^308]: Including national Red Cross societies.

[^309]: Additional Protocol II, art. 18, *supra* note Error: Reference
    source not found.

[^310]: *Id.*

[^311]: *See* [The Laws of Armed Conflicts: A Collection of Conventions,
    Resolutions and Other Documents,]{.smallcaps} *supra* note 2, at
    698.

[^312]: Additional Protocol I, arts. 69, 70, 71, *supra* note 2.

[^313]: *Id.* at art. 70(4).

[^314]: *Id.*

[^315]: *Id.*

[^316]: *Id.*

[^317]: *Id.*

[^318]: [U.N. Peace Operations,]{.smallcaps} *supra* note Error:
    Reference source not found, at 403.

[^319]: JP 3-08, *supra* note Error: Reference source not found, at Vol.
    I, II-1.

[^320]: Additional Protocol I, art. 44 ¶ 3, *supra* note 2;
    [Ipsen]{.smallcaps}, *supra* note Error: Reference source not found,
    at 75.

[^321]: Arguably, Additional Protocol I weakens the required use of
    uniforms through its broad definition of "armed forces" in article
    43 (includes guerrillas and removes a requirement for such
    irregulars to distinguish themselves from civilians through the wear
    of fixed insignia). *The New Rules for Waging War: The Case Against
    Ratification of Additional Protocol I*, *supra* note Error:
    Reference source not found, at 128. However, such an irregular must
    carry his weapon openly when visible to an adversary while both
    "engaged in a military deployment preceding the launching of an
    attack in which he is to participate" and while engaged in
    hostilities. Additional Protocol I, art. 44 ¶ 3, *supra* note 2.

[^322]: [Ipsen]{.smallcaps}, *supra* note Error: Reference source not
    found, at 76. *See generally*, Additional Protocol I, art. 44 ¶ 7,
    *supra* note 2, ("This Article is not intended to change the
    generally accepted practice of States with respect to the wearing of
    the uniform by combatants assigned to the regular, uniformed armed
    units of a Party to the conflict.")

[^323]: [Ipsen,]{.smallcaps} *supra* note Error: Reference source not
    found, at 75.

[^324]: DODD 1404.10, *supra* note Error: Reference source not found, ¶
    6.9.8; AFPAM 10-231, *supra* note Error: Reference source not found,
    ¶ 6.3.4; DA Pam. 690-47, *supra* note 19, § 1-22, Geneva Convention,
    Prisoner of War Status, Combatant/Non-Combatant Status. It is
    impermissible to use enemy uniforms, flags, or insignia during
    combat, although this prohibition does not apply before or after
    actual hostilities. *The New Rules for Waging War: The Case Against
    Ratification of Additional Protocol I*, *supra* note Error:
    Reference source not found, at 148; Hague IV, art. 23(f), *supra*
    note Error: Reference source not found. Additional Protocol I
    extends that prohibition to uses "in order to shield, favor, protect
    or impede military operations." Additional Protocol I, art. 39,
    *supra* note 2.

[^325]: DODD 1404.10, *supra* note Error: Reference source not found, at
    6.9.8; Dep't of Defense Manual 1400.25-M, Ch. 500, Subchapter 591,
    DOD Civilian Personnel Manual (Classification, Pay, and Allowances
    (Uniform and Uniform Allowances for Civilians)) (Dec. 3, 1996); Air
    Force Instruction 36-801, Uniforms for Civilian Employees 1.1 (Apr.
    29, 1994) \[hereinafter AFI 36-801\]; AFPAM 10-231, *supra* note
    Error: Reference source not found, ¶ A4.15; Army Regulation 670-10,
    Furnishing Uniforms of Paying Uniform Allowances to Civilian
    Employees (July 1969) \[hereinafter AR 670-10\]; Army Regulation
    700-84, Issue and Sale of Personal Clothing (Feb. 28, 1994).

[^326]: AFI 36-801, *supra* note Error: Reference source not found, ¶
    1.1.2.

[^327]: AR 670-10, *supra* note Error: Reference source not found, §
    8-2.

[^328]: *Id.*

[^329]: DA Pam. 690-47, *supra* note 19, § 1-13, Clothing and Equipment
    Issue.

[^330]: AFI 36-801, *supra* note Error: Reference source not found, at
    1.1.2.

[^331]: *The New Rules for Waging War: The Case Against Ratification of
    Additional Protocol I*, *supra* note Error: Reference source not
    found, at 128 n.108.

[^332]: *See, e.g.*, AFI 36-801, *supra* note Error: Reference source
    not found, ¶6.7; Army Regulation 670-1, *Wear and Appearance of Army
    Uniforms and Insignia* (Sept. 1, 1990) (discussing wear of the
    battle dress uniform); AR 670-10, *supra* note 324.

[^333]: AFI 36-801, *supra* note Error: Reference source not found, ¶
    6.7.

[^334]: Interview with Mr. W. Darrell Phillips, Chief, International Law
    and Operations Division, Air Force Judge Advocate General School at
    Maxwell Air Force Base, Ala. (May 10, 2000).

[^335]: 10 U.S.C. §1593 (Nov. 29, 1989), Uniform Allowance: Civilian
    Employees. The Air Force requires an allowance or provision of
    uniforms in AFI 36-801, *supra* note Error: Reference source not
    found, ¶ 1.3.1. The Army's provisions are in AR 670-10, *supra* note
    324.

[^336]: JP 4-0, *supra* note Error: Reference source not found, at V-7.

[^337]: Army Policy on Contractors on the Battlefield, *supra* note
    Error: Reference source not found.

[^338]: Interim Policy Memorandum---Contractors in the Theater, *supra*
    note Error: Reference source not found.

[^339]: AR 715-9, *supra* note Error: Reference source not found, ¶
    3-3e.

[^340]: DA Pam. 715-16, *supra* note Error: Reference source not found,
    ¶ B-1.

[^341]: JP 4-0, *supra* note Error: Reference source not found, at V-7.

[^342]: Interestingly, a proposal was made during a working group
    meeting to draft what became Article 79, Additional Protocol I, to
    obligate journalists protected under Article 79 to wear a clearly
    visible and distinctive emblem shaped like a bright orange armlet
    with two black triangles, but the proposal was rejected primarily
    because such identification might increase the danger to the
    journalist and civilians near him. [Pilloud]{.smallcaps}, *supra*
    note 60, at 919.

[^343]: AFI 36-801, *supra* note Error: Reference source not found, ¶
    6.2.

[^344]: Parks, *supra* note 2, at 116 (quoting [J. Cross, Conflict in
    the Shadows]{.smallcaps} 98 (1963)).

[^345]: Interim Policy Memorandum---Contractors in the Theater, *supra*
    note Error: Reference source not found.

[^346]: [Pilloud]{.smallcaps}, *supra* note 60, at 919.

[^347]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 142-143.

[^348]: Parks, *supra* note 2, at 132.

[^349]: E-mail responses from Chris Heinrich, Brown & Root Corp., former
    LOGCAP contractor (May 1, 2001). DynCorp Technical Services,
    Briefing on Contractors on the Battlefield, Slide 10, *available at*
    http://www.cascome.army.mil/Rock_Drill/c/Contractors_on_the_Battlefield/

    AUSA_Symposium/ (on file with author); Dowling & Feck, *supra* note
    45, at 70 (stating Brown & Root and DynCorp resist the wear of
    uniforms by their employees).

[^350]: DynCorp Technical Services allows wear of uniforms in the
    Balkans. Raytheon is the current contractor for TOW/ITAS. Barnett
    Telephone Interview, *supra* note 243.

[^351]: *See* Interim Policy Memorandum---Contractors in the Theater,
    *supra* note Error: Reference source not found.

[^352]: [Pilloud]{.smallcaps}, *supra* note 60, at 923.

[^353]: Krejcarek Telephone Interview, *supra* note 69.

[^354]: *Id.*

[^355]: *See* Hall, *supra* note Error: Reference source not found.

[^356]: *See* FM 3-61.1, *supra* note Error: Reference source not found,
    ¶ 4-35.

[^357]: Joint Publication 3-11, Joint Doctrine for Nuclear, Biological,
    and Chemical (NBC) Defense § 8.a (July 10, 1995) \[hereinafter JP
    3-11\]; DODD 1404.10, *supra* note 18, § 6.9.8; AFPAM 10-231,
    *supra* note Error: Reference source not found, ¶¶ 3.8, 3.9.

[^358]: DODD 1404.10, *supra* note 18, at 6; AFPAM 10-231, *supra* note
    Error: Reference source not found, ¶ 3.8.

[^359]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    3.9.1; DA Pam. 690-47, *supra* note 19, § 1-13, Clothing and
    Equipment Issue.

[^360]: DODI 3020.37, *supra* note 47, ¶ 8b, E3.1.2. The Unified
    Combatant Commander is responsible for establishing theater
    admission requirements for civilian employees and contractors which
    at minimum must include issuance of an identification card; POW
    training; Law of War training; issuance of and training in uniforms.
    DODD 1400.31, *supra* note 10, ¶ D.5; Dep't of Defense Directive
    1400.32, DOD Civilian Work Force Contingency and Emergency Planning
    Guidelines and Procedures ¶ E.3.b-e (April 24, 1995) \[hereinafter
    DODD 1400.32\]; DODI 3020.37, *supra* note 47 (enclosure 3
    delineates guidelines for theater admission procedures for
    contractors); AFPAM 10-231, *supra* note Error: Reference source not
    found, ¶ 2.4. Air Force planning is directed by Air Force
    Instruction 36-507, (July 21, 1994) \[hereinafter AFI 36-507\]. *See
    also* JP 3-11, *supra* note 356, § 8.a. It is the deploying
    component's responsibility to ensure compliance with the theater
    admission requirements. DODD 1400.31, *supra* note Error: Reference
    source not found, ¶ D.5. For civilians already in theater at the
    time of requirement establishment or update, the responsibility for
    compliance is shifted to the unit in-theater where the employee is
    assigned or attached. *See* *Id.*

[^361]: Zamparelli, *supra* note Error: Reference source not found, at
    14.

[^362]: *Id.*

[^363]: *Id.*

[^364]: *Id.*

[^365]: Peter Grier, *The Comeback of CRAF*[, A.F. Mag]{.smallcaps}.
    (July 1995).

[^366]: *See* FM 3-61.1, *supra* note Error: Reference source not found,
    ¶ 4-35.

[^367]: This was the standing policy at the time the author was deployed
    to Prince Sultan Air Base, Saudi Arabia in the Summer of 1999.

[^368]: DODD 1404.10, *supra* note Error: Reference source not found, ¶
    6.9.8; AFPAM 10-231, *supra* note Error: Reference source not found,
    ¶ 6.3.4; JP 4-0, *supra* note Error: Reference source not found, at
    V-7; DA Pam. 690-47, *supra* note 19, § 1-22, Geneva Convention,
    Prisoner of War Status, Combatant/Non-Combatant Status.

[^369]: 10 U.S.C. § 1585 (Jul. 31, 1958) (carrying firearms).

[^370]: *Id.*; DODD 1404.10, *supra* note Error: Reference source not
    found, ¶ 6.9.8; JP 4-0, *supra* note Error: Reference source not
    found, at V-7; DA Pam. 715-16, *supra* note Error: Reference source
    not found, ¶ 5-3; FM 100-21, *supra* note Error: Reference source
    not found, ¶ C-50.

[^371]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    2.3.3.

[^372]: JP 1-0, *supra* note Error: Reference source not found, at O-2.

[^373]: JP 4-0, *supra* note Error: Reference source not found, at V-7.

[^374]: Interim Policy Memorandum---Contractors in the Theater, *supra*
    note Error: Reference source not found.

[^375]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    2.3; DP/DPXC Message, *supra* note Error: Reference source not
    found, § 4(A); JP 4-0, *supra* note Error: Reference source not
    found, at V-7; DA Pam. 690-47, *supra* note Error: Reference source
    not found, § 1-12, Weapons and Training; DA Pam. 715-16, *supra*
    note Error: Reference source not found, ¶ 5-3.

[^376]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    2.3.2; FM 100-21, *supra* note Error: Reference source not found, ¶
    C-50.

[^377]: E-mail response from Chris Heinrich, Brown & Root Corp., former
    LOGCAP contractor (May 1, 2001). Barnett Telephone Interview,
    *supra* note 243.

[^378]: Lautenberg Amendment*,* 18 U.S.C. §§ 922(d)(9), (g), (s), &
    925(a)(1) (Sept. 30, 1996) (amending the Federal Gun Control Act of
    1968, 18 U.S.C*.* § 922 (1968)); AFPAM 10-231, *supra* note Error:
    Reference source not found, ¶ 2.3.1.

[^379]: *See* "Status of Forces Agreements" *infra* Part III.C.

[^380]: JP 4-0, *supra* note Error: Reference source not found, at V-7.

[^381]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 391.

[^382]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    2.3; DODD 1404.10, *supra* note 18, ¶ 6.9.8; Field Manual 23-35,
    Combat Training With Pistols and Revolvers (Oct. 3, 1988).

[^383]: *See* Army Policy on Contractors on the Battlefield, *supra*
    note Error: Reference source not found; JP 4-0, *supra* note Error:
    Reference source not found, at V-7.

[^384]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶¶
    1.5, 6.3.6, A4.16; Air Force Instruction 31-207*,* Arming and Use of
    Force by Air Force Personnel (Sep. 1, 1999).

[^385]: McHugh, *supra* note 51, Appendix C; Krejcarek Telephone
    Interview, *supra* note 69.

[^386]: Major General Norman E. Williams and Jon M. Schandelmeier,
    *Contractors on the Battlefield*, [Army Magazine]{.smallcaps} 32-35
    (Jan. 1999).

[^387]: *See* "Civilian Use of Weapons" *infra* Part III.A.4.

[^388]: Dowling & Feck, *supra* note 45, at 69.

[^389]: JP 3-11, *supra* note 356, § 8 (emphasis omitted). This article
    will not address non-combatant evacuation operations as it assumes
    the civilians in issue will remain in theater when other U.S.
    citizens and designated aliens are evacuated. *See generally*, JP
    3-07.5, *supra* note 25, at III-1; Dep't of Defense Directive
    302.14, Protection and Evacuation of U.S. Citizens and Designated
    Aliens in Danger Areas Abroad (Nov. 5, 1990).

[^390]: Joint Publication 3-07.2, *Joint Tactics, Techniques and
    Procedures for Antiterrorism* (July 23, 1996). *See also*, Dep't of
    Defense Directive 2000.12, DOD Antiterrorism/Force Protection
    (AT/FP) Program (13 April 1999) \[hereinafter DODD 2000.12\].

[^391]: Of particular concern to commanders should be providing weapons
    or nuclear, biological and chemical gear to local contractors such
    as theater support contractors or subcontractors for external
    theater support, when they could be sympathizers with the enemy.

[^392]: *See* Dep't of Defense Instruction 2000.6, DOD Combating
    Terrorism Program Standards (Sept. 15, 1996); DODD 2000.12, *supra*
    note 389.

[^393]: Dep't of Defense Directive 1100.4, Guidance for Manpower
    Programs (Aug. 20, 1954); DODD 1400.31, *supra* note 10, ¶ D.4.

[^394]: *Id.*

[^395]: *Id.*

[^396]: *Id.* at D.5.

[^397]: DODD 1400.32, *supra* note Error: Reference source not found, ¶
    E.3a.

[^398]: DODD 1400.31, *supra* note 10, ¶ D.5.

[^399]: *Id.*

[^400]: DODD 1400.32, *supra* note Error: Reference source not found, ¶
    E.3.b.-e; AFPAM 10-231, *supra* note Error: Reference source not
    found, ¶ 2.4. Air Force planning is directed by AFI 36-507, *supra*
    note 359. *See also* JP 3-11, *supra* note 356, ¶ 8.a.

[^401]: DODD 1400.32, *supra* note Error: Reference source not found, ¶
    E.3.f.-i.

[^402]: *Id.* at ¶ E.3.j-k.

[^403]: *Id.* at ¶ E.3.o.

[^404]: Dep't of Defense Directive 4500.54, Official Temporary Duty
    Travel Abroad (May 1, 1991), sets out specific antiterrorism
    requirements for visitors overseas and these are clearly made
    applicable to contractors through the DOD Antiterrorism/Force
    Protection Program. Generally, DOD requires the number of visits and
    visitors overseas should be minimal, and only when their purposes
    cannot be satisfied by other means. Visits should be arranged to
    require the minimum amount of an installation's equipment,
    facilities, time, services and personnel. If practicable, trips in
    the same general time and area should be consolidated. For more
    detail, refer to the directive.

[^405]: Dep't of Defense Directive 2000.12, DOD Antiterrorism/Force
    Protection, (AT/FP) Program ¶ 5.2.5 (Apr. 13, 1999).

[^406]: JP 4-0, *supra* note Error: Reference source not found, at V-7;
    JP 1-04, *supra* note 5, at Q-3. *Cf*. FM 100-21, *supra* note 5, ¶
    C-12, C-17 ("In an area of operation (AO), the senior military
    commander is responsible for accomplishing the mission and ensuring
    the safety of all deployed military, government civilians, and
    contractor employees" and "\[w\]hen contractors are deployed from
    their home stations, the Army will provide or make available force
    protection and support services commensurate with those provided to
    Department of Defense (DOD) civilian personnel and authorized by
    law.").

[^407]: FM 100-21, *supra* note Error: Reference source not found, ¶
    C-28.

[^408]: Army Policy on Contractors on the Battlefield, *supra* note
    Error: Reference source not found; FM 100-10-2, *supra* note Error:
    Reference source not found; DA Pam. 715-16, *supra* note Error:
    Reference source not found, ¶ 5-3a; *see also* JP 4-0, *supra* note
    Error: Reference source not found, at V-7.

[^409]: Palmer, *supra* note Error: Reference source not found. *Cf*
    David L. Young, *Planning: The Key to Contractors on the
    Battlefield*, [Army Log]{.smallcaps}. (May-June 1999) *available at*
    http://www.almc.army.mil/alog/may

    jun99/ms344.htm (on file with author).

[^410]: *Planning: The Key to Contractors on the Battlefield*, *supra*
    note Error: Reference source not found.

[^411]: Hogan, *supra* note Error: Reference source not found, at 15

[^412]: Hogan, *supra* note Error: Reference source not found, at 15.

[^413]: JP 4-0, *supra* note Error: Reference source not found, at V-3.

[^414]: *Id.* at V-4.

[^415]: Focused Logistics Wargame (FLOW 2010) Report of Results.

[^416]: AR 715-9, *supra* note Error: Reference source not found, ¶
    1-5m(17).

[^417]: *Id.* ¶2-1a.

[^418]: JP 4-0, *supra* note Error: Reference source not found, at V-3;
    AR 715-9, *supra* note Error: Reference source not found, ¶ 2-1d;
    *See generally,* DA Pam. 715-16, *supra* note Error: Reference
    source not found, ¶¶ 5-1, 5-2.

[^419]: *See* AR 715-9, *supra* note Error: Reference source not found,
    ¶¶ 2-1e, 2-2e.

[^420]: William H. McMichael, *Honoring Ernie Pyle*, [Soldiers
    (]{.smallcaps}June 1995).

[^421]: *Id*.

[^422]: [Pilloud]{.smallcaps}, *supra* note 60, at 922.

[^423]: [Joint Task Force Commander's Handbook for Peace
    Operations]{.smallcaps}, *supra* note Error: Reference source not
    found, at VIII-4.

[^424]: FM 3-61.1, *supra* note Error: Reference source not found, §
    4-46.

[^425]: JP 3-61, *supra* note Error: Reference source not found, at II-5
    (emphasis omitted). *See also,* DODD 5400.13, *supra* note *Error:
    Reference source not found*, ¶ 4.4.2.

[^426]: JP 3-61, *supra* note Error: Reference source not found, at
    II-4; DODD 5400.13, *supra* note Error: Reference source not found,
    ¶ 3.2.

[^427]: JP 3-61, *supra* note Error: Reference source not found, at
    II-4; DODD 5400.13, *supra* note Error: Reference source not found,
    ¶ 4.4.2.

[^428]: DODD 5400.13, *supra* note *Error: Reference source not found*,
    ¶ 3.2 (emphasis added).

[^429]: Media Day, Media Panel, Air Command and Staff College, Maxwell
    Air Force Base, Ala. (Apr. 26, 2001).

[^430]: JP 3-61, *supra* note Error: Reference source not found, at II-7
    (citing DOD Final Report to Congress, [Conduct of the Persian Gulf
    War]{.smallcaps}, Apr. 1992).

[^431]: JP 3-61, *supra* note Error: Reference source not found, at
    III-4; DODD 5122.5, *supra* note 259, Encl. 3, ¶ 1.7; Dep't of
    Defense 4515.13-R, Air Transportation Eligibility, (Nov. 1994,
    through Ch. 3, Apr. 9, 1998); Air Force Instruction 35-101, Public
    Affairs Policies and Procedures (Dec. 1, 1999) at section G
    \[hereinafter AFI 35-101\].

[^432]: AFI 35-101, *supra* note 430 (also has example of the ground
    rules used in Operation Restore Hope at Fig. 6.4).

[^433]: JP 3-61, *supra* note Error: Reference source not found, at
    IV-1.

[^434]: *Id.* at IV-2.

[^435]: McHugh, *supra* note 51, Appendix C.

[^436]: [Peter Young and Peter Jesser]{.smallcaps}, *supra* note 267, at
    128.

[^437]: JP 3-08, *supra* note Error: Reference source not found, at Vol.
    I, I-10.

[^438]: S*ee* CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 398, stating,

    > NGO/PVO extremely concerned/almost hostile about lack of security
    > provided to them by US. . . . Amazing what they expect from
    > us---almost that we owe them. They hear we have 20,000 and expect
    > that each one should be made available to them first for security;
    > no regard whatsoever for our billions in equipment and thousands
    > of soldiers also needing secured. No regard for our mission to
    > stand up and secure a government. This piece needs to be briefed
    > to these organizations during peacetime---what to expect,
    > procedures for obtaining, etc. They have unreasonable expectations
    > of the military.

[^439]: *See* "Refugees, Stateless Persons, and Internally Displaced
    Persons" *infra* Part III.B.13.

[^440]: Lieutenant Commander Stephen R. Sarnoski, *The Status Under
    International Law of Civilian Persons Serving with or Accompanying
    the Armed Forces in the Field*, [The Army Lawyer]{.smallcaps} 31
    (July 1994).

[^441]: Ann Devroy, *U.S. Seeks Release of 2 Held in Iraq*; *Civilians
    Are Said to Cross Border by Mistake*, [Wash. Post]{.smallcaps}, Mar.
    18, 1995 at A19; *see also* Richard A. Serrano, *Families of 2 Held
    in Iraq Try to Suppress Anger, Fear*, [Los Angeles
    Times,]{.smallcaps} Mar. 29, 1995, at A1; Larry King, *David
    Daliberti Tells His Story*, [Larry King Live]{.smallcaps},
    Transcript No. 1489-2 (Jul. 18, 1995).

[^442]: Larry King, *David Daliberti Tells His Story*, [Larry King
    Live]{.smallcaps}, Transcript No. 1489-2 (Jul. 18, 1995).

[^443]: Jamal Halaby, *Freed by Iraq, Two Americans Arrive in Jordan,*
    [Associated Press Release (]{.smallcaps}July 17, 1995).

[^444]: Unorganized or short-lived insurrection and criminal acts of
    banditry do not qualify as "armed conflict." Major John Embry
    Parkerson, Jr., *United States Compliance With Humanitarian Law
    Respecting Civilians During Operation Just Cause*, 133 [Mil. L.
    Rev.]{.smallcaps} 347, n. 30 (1991).

[^445]: Rules since the days of the Old Testament have found value in
    providing protections for prisoners taken during combat operations.
    When presented with such prisoners, the King of Israel asked the
    prophet Elisha,

    > "'Shall I kill them, my father? Shall I kill them?' 'Do not kill
    > them,' he answered. 'Would you kill men you have captured with
    > your own sword or bow? Set food and water before them so that they
    > may eat and drink and then go back to their master.' So he
    > prepared a great feast for them, and after they had finished
    > eating and drinking, he sent them away, and they returned to their
    > master. So the bands from Aram stopped raiding Israel's
    > territory."

    *2 Kings 6:21-23*, New International Version.

[^446]: Geneva Convention III, art. 4A(4), *supra* note 2; Hague IV,
    art. 13, *supra* note Error: Reference source not found. Although
    often referred to as "capture" the more correct phraseology is
    "fallen into the power of the enemy," a broader concept than
    capture, including for example, members of the armed forces who are
    under enemy control after surrender before repatriation. [Commentary
    III Geneva Convention Relative to the Treatment of Prisoners of War
    50]{.smallcaps} (Jean S. Pictet ed., 1960).

[^447]: Geneva Convention III, arts. 118, 119, *supra* note 2.

[^448]: *See generally*, Geneva Convention III, *supra* note 2. If a
    person who accompanies the armed forces without being a member
    thereof comes under the control of enemy forces in an international
    armed conflict, and is wounded, sick or shipwrecked, he is protected
    under Geneva Convention I and II just as active duty military
    members. Geneva Convention I, art 13 (4), *supra* note 2; Geneva
    Convention II, art. 13(4), *supra* note 15. Wounded and sick persons
    must be treated humanely and on the same basis as non-prisoners and
    may not be subject to reprisals. Geneva Convention II, arts. 12, 46,
    *supra* note 15.

[^449]: Geneva Convention III, arts. 14-16, 25 -- 28, 29 -- 32, 71,
    *supra* note 2.

[^450]: *Id.* at arts. 13, 17.

[^451]: *Id.* at art. 19.

[^452]: *Id.* at arts. 34-38.

[^453]: *Id.* at art. 4A(4). See discussion *infra* note 459 for
    identification card requirements.

[^454]: Particularly systems support and external theater support
    contractors, and all those designated emergency- essential.

[^455]: DODI 3020.37, *supra* note 47, ¶ 6.3.

[^456]: [Ipsen]{.smallcaps}, *supra* note Error: Reference source not
    found, at 95.

[^457]: [Commentary III Geneva Convention Relative to the Treatment of
    Prisoners of War 65]{.smallcaps}, *supra* note Error: Reference
    source not found; [Pilloud]{.smallcaps}, *supra* note 60, at 923.

[^458]: *Id.*

[^459]: Dep't of Defense Instruction 1000.1, Identity Cards Required by
    the Geneva Conventions (June 5, 1991 Supp. through Ch. 2)
    \[hereinafter DODI 1000.1\].

[^460]: Dep't of Defense Directive 1000.22, Uniformed Services\'
    Identification (ID) Cards (Oct. 8, 1997); Dep't of Defense
    Instruction 1000.23, DOD Civilian Identification Card (Dec. 1,
    1998); Dep't of Defense Instruction 1000.13, Identification (ID)
    Cards for Members of the Uniformed Services, Their Dependents, and
    Other Eligible Individuals (Dec. 5, 1997); DODD 1404.10, *supra*
    note Error: Reference source not found, ¶ 4.5.

[^461]: Air Force Instruction 36-3026 (Interservice), Identification
    Cards for Members of the Uniformed Services, Their Family Members,
    and Other Eligible Personnel ¶ 1.3.6 (July 14, 1998) \[hereinafter
    AFI 36-3026\]; AFPAM 10-231, *supra* note Error: Reference source
    not found, ¶ 6.3.1.

[^462]: DODI 3020.37, *supra* note 47.

[^463]: *See* [Gasser, Handbook of Humanitarian Law]{.smallcaps},
    *supra* note Error: Reference source not found, at 210.

[^464]: Krejcarek Telephone Interview, *supra* note 69.

[^465]: *Id.*

[^466]: *Id.*

[^467]: Hall, *supra* note 274.

[^468]: *Id.*

[^469]: Mark Fineman, *Iraq Frees Captured CBS Crew; Network Credits
    Soviet Intervention*, [Los Angeles Times]{.smallcaps} A8c.1 (Mar. 3,
    1991).

[^470]: *See id.*

[^471]: Howard Kurtz, *CBS News Crew Held in Baghdad; Fate of Bob Simon,
    Others Now Up to Saddam*[, The Wash. Post]{.smallcaps}, Style C1
    (Feb. 16, 1991) (quoting CBS Vice President saying: "We are doing
    all we can to make clear to Iraq that they are not prisoners of war,
    that they are not spies. I am concerned Saddam Hussein understand
    that these four men are journalists and that they are non-combatants
    and that he make the decision to release them.") *Id.*

[^472]: Geneva Convention III, art. 5, *supra* note 2; Additional
    Protocol I, art. 45, *supra* note 2.

[^473]: Geneva Convention III, art. 5, *supra* note 2; Additional
    Protocol I, art. 45, *supra* note 2. The U.S. has objected to what
    it characterized as a relaxation of the POW treatment for irregular
    forces, but reasserted its support of POW treatment for combatants
    and entitlement to POW treatment until a tribunal has determined the
    prisoner's appropriate status. U.S. State Dep't Remarks, *supra*
    note Error: Reference source not found.

[^474]: *See* ICRC [Index of International Humanitarian Law]{.smallcaps}
    referencing Geneva Convention III, art. 5(2); Additional Protocol I,
    art. 45, *supra* note 2. The presumption that an individual who has
    committed a belligerent act is entitled to POW treatment does not
    conflict with the Additional Protocol I, art. 50, presumptions that
    individuals are civilians. Bothe et al., *supra* note Error:
    Reference source not found, at 294-95 n.12; Sarnoski, *supra* note
    Error: Reference source not found, at 31. Additional Protocol I,
    art. 50, presumption applies when a person is a target for attack
    and Geneva Convention III, art. 5, applies when one is in the
    custody of an adverse party.

[^475]: [Commentary III Geneva Convention Relative to the Treatment of
    Prisoners of War 77]{.smallcaps}, *supra* note 445.

[^476]: *See* Geneva Convention III, arts. 4(A), 85, *supra* note 2.

[^477]: Geneva Convention III, art. 85, *supra* note 2.

[^478]: [Commentary III Geneva Convention Relative to the Treatment of
    Prisoners of War 413-427,]{.smallcaps} *supra* note 445.

[^479]: Geneva Convention III, arts. 82-90, *supra* note 2.

[^480]: [Ipsen]{.smallcaps}, *supra* note Error: Reference source not
    found, at 95. The expansion of "combatant" in Additional Protocol I
    corresponds to POW protections being afforded to paramilitary or
    armed law enforcement agents. Additional Protocol I, arts. 43, 44,
    *supra* note 2. Recall that the U.S. objects to the redefinition of
    combatants.

[^481]: For example, the U.S. afforded POW treatment to detained persons
    during Operation Uphold Democracy in Haiti even though it was not an
    armed conflict triggering Geneva Convention III. *See* Theodore
    Meron, *Extraterritoriality of Human Rights Treaties,* 89 [Am. J.
    Int'l L]{.smallcaps}. 78 (1995); Memorandum of Agreement on
    Detention Facility between the Multinational Force and the
    Government of Haiti (Jan. 9, 1995) (reprinted in CLAMO Haiti Lessons
    Learned, *supra* note Error: Reference source not found, at
    295-296).

[^482]: Geneva Convention I, *supra* note 2; Geneva Convention II,
    *supra* note Error: Reference source not found.

[^483]: Geneva Convention II, art. 37, *supra* note Error: Reference
    source not found.

[^484]: Geneva Convention I, arts. 19, 30, *supra* note 2; Geneva
    Convention III, art. 33, *supra* note 2. Military members trained in
    medical auxiliary support such as auxiliary nurses, hospital
    orderlies and stretcher-bearers are classified separately from the
    groups listed in the text accompanying this footnote. Auxiliary
    personnel are afforded POW status when captured. Geneva Convention
    I, arts. 25, 29, *supra* note 2.

[^485]: Geneva Convention I, art. 28, *supra* note 2.

[^486]: *Id.* at art. 30.

[^487]: *Id.* at arts. 19, 28; Geneva Convention II, art. 37, *supra*
    note Error: Reference source not found; Geneva Convention III, art.
    33, *supra* note 2.

[^488]: Geneva Convention III, art. 33, *supra* note 2; Additional
    Protocol I, art. 16, *supra* note 2.

[^489]: Geneva Convention I, art. 24, *supra* note 2. That these
    personnel could be civilians was recognized as early as 1863 in the
    Resolutions of the Geneva International Conference (the founding
    Conference of the ICRC) Geneva, arts. 5-7 (Oct. 26-29, 1863)
    (reprinted in [The Laws of Armed Conflicts: A Collection of
    Conventions, Resolutions and Other Documents]{.smallcaps} 275,
    *supra* note 2).

[^490]: Geneva Convention I, art. 26, *supra* note 2.

[^491]: *Id.*

[^492]: Geneva Convention II, *supra* note Error: Reference source not
    found.

[^493]: *Id.* at art. 36.

[^494]: *Id.* at art. 25.

[^495]: Geneva Convention I, art. 27, *supra* note 2.

[^496]: *Id*.

[^497]: *Id,* at art. 32.

[^498]: *Id.*

[^499]: Geneva Convention I, arts. 27, 40, *supra* note 2; Geneva
    Convention II, art. 42, *supra* note Error: Reference source not
    found; Additional Protocol I, art. 18, *supra* note 2.

[^500]: Geneva Convention I, art. 40, *supra* note 2; Geneva Convention
    II, art. 42, *supra* note Error: Reference source not found.

[^501]: Additional Protocol I, art. 13, *supra* note 2.

[^502]: Additional Protocol II, art. 9-11, *supra* note Error: Reference
    source not found.

[^503]: *Id.* at art. 9.

[^504]: *Id.* at arts. 9, 10.

[^505]: *Id.* at art. 10.

[^506]: Safety of U. N. and Associated Personnel Convention, art. 2,
    *supra* note 97. The Convention entered into force on Jan. 15, 1999
    for approximately 27 states that have ratified or acceded to it. The
    U.S. has signed, but not ratified, the convention although it has
    been ratified by some of our allies such as the United Kingdom and
    Germany. Article 20 of the Convention details that this Convention
    supplements, rather than overrides, international humanitarian law
    and universally recognized standards of human rights, such as Common
    Article 3 protections.

[^507]: Safety of U.N. and Associated Personnel Convention, art. 8,
    *supra* note Error: Reference source not found.

[^508]: *Id.*

[^509]: *See* Note by Secretary-General, U.N. Doc. A/AC.242/1 (1994).
    *See also* Antoine Bouvier, Convention on the Safety of United
    Nations and Associated Personnel, International Review of the Red
    Cross, Dec. 31, 1995, No. 309, at 638-666.

[^510]: Safety of U.N. and Associated Personnel Convention, art. 1,
    *supra* note Error: Reference source not found.

[^511]: *Id.* at art. 2(2). The Convention will protect those who act in
    self-defense in other than sustained combat in actions authorized
    outside of Chapter VII. *See* Bloom, *supra* note 97, at 626. There
    is an argument to be made that similar to the "law of the flag,"
    when the U.N. conducts a forcible mission under Chapter VII, the
    associated forces are immune from the authority of the receiving
    state. *See* [U.N. Peace Operations,]{.smallcaps} *supra* note
    Error: Reference source not found, Chap. 5, Introduction.
    Alternatively, the troops and associated personnel are protected by
    the law of the flag of their nation, rather than under the auspices
    of the U.N. Either of these approaches will not confer protections
    or a status upon those captured, rather protect forces from customs,
    taxes, criminal jurisdiction and the like. Operation Desert Storm is
    an example of a peace enforcement action authorized under Chapter
    VII of the U.N. Charter, *supra* note 81. Operation Provide Relief
    in Somalia was authorized under Chapter VI of the Charter.

[^512]: Safety of U.N. and Associated Personnel Convention, arts. 1, 2,
    *supra* note Error: Reference source not found.

[^513]: *Id.*

[^514]: *Id.* at art. 1(a).

[^515]: Bloom, *supra* note Error: Reference source not found, at 622.

[^516]: Safety of U.N. and Associated Personnel Convention, art. 1(b),
    *supra* note Error: Reference source not found.

[^517]: Bloom, *supra* note Error: Reference source not found, at 623.

[^518]: *Id.* Many NGOs, governments and U.N. agencies argued the
    convention should be more expansive to cover all employees in the
    field rather than limiting coverage to designated operations.
    However, the prevailing view was to retain focus on U.N. and
    associated personnel involved in peacekeeping. *Id.* at 624.

[^519]: Department of Public Information, Non-governmental Organizations
    Section, *NGOs and the Department of Public Information: Some
    Questions and Answers, supra* note 89.

[^520]: Safety of U.N. and Associated Personnel Convention, art. 3,
    *supra* note 97.

[^521]: *Id.*

[^522]: Convention on Privileges and Immunities of the United Nations,
    Feb. 13, 1946, art. VI, 21 U.S.T. 1418, T.I.A.S. No. 6900, 1
    U.N.T.S. 15, T.S. 993 (entered into force on Apr. 29, 1970). Through
    an outgrowth of article 105 of the U.N. Charter, the U.N. "shall
    enjoy in the territory of each of its Members such privileges and
    immunities as are necessary for the fulfillment of its purposes" and
    U.N. representatives shall have such privileges and immunities "as
    are necessary for the independent exercise of their function." U.N.
    property, funds and assets are also protected in Article II;
    communications in Article III; member representatives in Article IV;
    and U.N. officials in Article V. U.N. Charter, *supra* note 81.

    The protections for experts under the 1946 Convention on Privileges
    and Immunities of the U.N. is broader in scope than the 1994 Safety
    of U.N. and Associated Personnel Convention. The 1946 Convention
    protects persons on U.N. missions authorized under Chapter VII of
    the U.N. Charter while the 1994 Convention specifically excludes its
    coverage from such missions. *See* U.N. Charter, *supra* note 81.

    The Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23
    U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95, does not refer to
    experts but does provide immunity for administrative and technical
    staff of the mission in arts. 1 & 37.

[^523]: *Id.*

[^524]: *See* [U.N. Peace Operations,]{.smallcaps} *supra* note 93, at
    224.

[^525]: Convention on Privileges and Immunities of the United Nations,
    art. VI, § 22, *supra* note Error: Reference source not found. They
    are also afforded legal immunity for their spoken or written acts;
    inviolability of their documents and papers as well as the right to
    use coded and sealed communications with the U.N.; and "the same
    facilities in respect of currency or exchange restrictions as are
    accorded to representative of foreign governments on temporary
    official missions."

[^526]: *Id.*

[^527]: [Mark Bowden, Black Hawk Down: A Story of Modern
    War]{.smallcaps} (1999).

[^528]: *Id.*

[^529]: [U.N. Peace Operations,]{.smallcaps} *supra* note Error:
    Reference source not found, at 224.

[^530]: Universal Declaration of Human Rights 71, U.N. Doc. A/810 (Dec.
    10, 1948) \[hereinafter Universal Declaration\].

[^531]: *Id.* at art. 3.

[^532]: *Id.* at art. 5.

[^533]: *Id.* at arts. 7-11.

[^534]: Geneva Conventions I -- IV, art. 3, *supra* notes 2 and Error:
    Reference source not found \[hereinafter Common Article 3\].

[^535]: The article states it applies to "armed conflict not of an
    international character occurring in the territory of one of the
    High Contracting Parties." High Contracting Parties are the state
    signatories to the U.N. Charter. The protections of Common Article 3
    have also been recognized as customary international law applicable
    to any armed conflict. Prosecutor v. Dusko Tadic A/K/A/ "Dule,"
    Int'l Tribunal for the Prosecution of Persons Responsible for
    Serious Violations of Int'l Humanitarian Law Committed in the
    Territory of the Former Yugoslavia since 1991, Case No. IT-94-1-AR72
    (Oct. 2, 1995); Nicaragua v. United States of America, Judgment,
    I.C.J. (June 27, 1986) at ¶ 218.

[^536]: Common Article 3, *supra* note 533.

[^537]: Letter from Secretary of State to President Ronald Reagan,
    *supra* note Error: Reference source not found; *Agora: The U.S.
    Decision Not to Ratify Protocol I to the Geneva Conventions on the
    Protection of War Victims*, 81 A[m.]{.smallcaps} J.
    I[nt'l]{.smallcaps} L. 910 (1987) (reprinting Letter of Transmittal
    of Protocol II Additional to the Geneva Conventions of 12 August
    1949 from the President of the United States, to the United States
    Senate).

[^538]: Additional Protocol II, art.1, *supra* note Error: Reference
    source not found; Additional Protocol II purports to exclude from
    its coverage: (1) international armed conflict between states as
    recognized in the four Geneva Conventions; (2) armed conflicts
    termed wars of "national liberation" in Article 1(4) of the
    Protocol; (3) non-international armed conflict not covered by any of
    the Geneva Conventions, except article 3, such as "guerrilla
    conflicts in which insurgent groups do not control substantial
    territory on a permanent basis or conduct sustained and concerted
    regular military operations"; and (4) internal violence not rising
    to the level of "armed conflict" such as riots and sporadic
    terrorist acts. The U.S. supports the exclusion of the first and
    fourth types of conflicts from the protections of Additional
    Protocol II, but disagrees with the exclusion of "liberation wars"
    as set forth in the second exception, and guerilla wars and
    insurgent conflicts where the insurgents do not hold territory and
    conduct regular, sustained military operations as defined in the
    third exception. Letter from Secretary of State to President Ronald
    Reagan, *supra* note Error: Reference source not found.

[^539]: Letter from Secretary of State to President Ronald Reagan,
    *supra* note Error: Reference source not found (objecting to the
    limited types of internal conflicts Additional Protocol II covers).

[^540]: Letter from Secretary of State to President Ronald Reagan,
    *supra* note Error: Reference source not found.

[^541]: Additional Protocol II, art. 4, *supra* note Error: Reference
    source not found.

[^542]: Additional Protocol II, arts. 2, 4, 5, *supra* note Error:
    Reference source not found; Letter from Secretary of State to
    President Ronald Reagan, *supra* note Error: Reference source not
    found.

[^543]: Additional Protocol II, art. 6, *supra* note Error: Reference
    source not found.

[^544]: *Id.* at art. 5.

[^545]: *Id.* at art. 7.

[^546]: *Id.* at art. 4.

[^547]: Additional Protocol I, arts. 11, 45(3), 75, *supra* note 2. The
    U.S. has not objected to this provision as it represents customary
    international law. *See* *supra* note Error: Reference source not
    found.

[^548]: *See* [Commentary, Additional Protocols]{.smallcaps}, *supra*
    note 109, at 837.

[^549]: Additional Protocol I, art. 11, *supra* note 2.

[^550]: *Id.* at art. 75.

[^551]: *Id.* at arts. 76-77.

[^552]: *Id.* at art. 76.

[^553]: *Id.* at art. 77.

[^554]: Geneva Convention IV, art. 4, *supra* note 2.

[^555]: *Id.* However, the provisions protecting civilians from the
    consequences of war as set forth in Part II of the Convention are
    much broader in application and protect the entire civilian
    population residing in the territory of any party to the conflict.
    *Id.* at art. 13. The discussion of Geneva Convention IV will not
    delve into rules governing occupied territories, even though the
    Convention has several provisions relating to occupations.

[^556]: *Id.* at art. 4.

[^557]: *Id.* at art. 5. While not further developed in the Convention,
    the commentary states, "what is meant is probably above all
    espionage, sabotage and intelligence with the enemy Government or
    enemy nationals. The clause cannot refer to a political attitude
    towards the States, so long as that attitude is not translated into
    action." [Commentary IV Geneva Convention Relative to the Protection
    of Civilian Persons in Time of War 56]{.smallcaps} (Jean S. Pictet
    ed., 1958).

[^558]: Geneva Convention IV, art. 4, *supra* note 2.

[^559]: [Hilaire McCoubrey & Nigel D. White, International Law and Armed
    Conflict]{.smallcaps} 270 (1992).

[^560]: Geneva Convention IV, art. 27, *supra* note 2.

[^561]: *Id.*

[^562]: Internment can include being put into a camp and guarded. *See*
    Geneva Convention IV, arts. 41-3, 68, 78p, ¶ 1, *supra* note 2;
    [Gasser, Handbook of Humanitarian Law]{.smallcaps}, *supra* note
    Error: Reference source not found, at 288. Although these provisions
    are only binding in international armed conflict, the U.S. has
    adopted the policy of applying it in all armed conflict.

[^563]: Geneva Convention IV, arts. 41-3, 68, 78p, ¶ 1, *supra* note 2;
    [Gasser, Handbook of Humanitarian Law]{.smallcaps}, *supra* note
    Error: Reference source not found, at 288.

[^564]: Geneva Convention IV, arts. 79--141, *supra* note 2.

[^565]: *Id.* at art. 134.

[^566]: *Id.* at arts. 133, 134; [Gasser, Handbook of Humanitarian
    Law]{.smallcaps}, *supra* note Error: Reference source not found, at
    291.

[^567]: *See* Additional Protocol I, art. 79, *supra* note 2. *See also*
    [Pilloud]{.smallcaps}, *supra* note 60, at 918. It is interesting to
    note that journalists of any state are protected as civilians, while
    other protections referenced for civilians are linked to whether
    they are linked to a party to the hostilities. Gasser, *Protection
    of Journalists*, *supra* note Error: Reference source not found, at
    3-18.

[^568]: Additional Protocol I, art. 79, *supra* note 2.

[^569]: *See* [Pilloud]{.smallcaps}, *supra* note 60, at 918.

[^570]: *Id*.

[^571]: *Id.* at 920.

[^572]: *See* *id.*

[^573]: Additional Protocol I, art. 79, *supra* note 2.

[^574]: Geneva Convention III, art. 4A(4), *supra* note 2; Additional
    Protocol I, art. 51, *supra* note 2; [Gasser, Handbook of
    Humanitarian Law]{.smallcaps}, *supra* note Error: Reference source
    not found, at 210, 232, 233; AFPAM 10-231, *supra* note Error:
    Reference source not found, ¶ 6.3.3.

[^575]: [Gasser, Handbook of Humanitarian Law]{.smallcaps}, *supra* note
    Error: Reference source not found, at 228. Geneva Convention III,
    art. 4A(4), Annex IV, *supra* note 2, has an example of such an
    identity card.

[^576]: [Pilloud]{.smallcaps}, *supra* note 60, at 923.

[^577]: Additional Protocol I, art. 79, *supra* note 2.

[^578]: *Id.*

[^579]: [Pilloud]{.smallcaps}, *supra* note 60, at 923.

[^580]: *Id.*

[^581]: Because the identity card provided in the Conventions is only a
    model, "\[s\]tates have some degree of latitude as regards the
    lay-out of their identity cards. However, there are limitations. It
    seems clear that a card issued by a national authority must contain,
    in one form or another, all the information specified in the model.
    Other information may be added where necessary."
    [Pilloud]{.smallcaps}, *supra* note 60, at 923.

[^582]: DODI 1000.1, *supra* note 458.

[^583]: AFI 36-3026, *supra* note 460, ¶ 1.3.6.

[^584]: Geneva Convention III, art. 4A(4), *supra* note 2; Additional
    Protocol I, art. 79, *supra* note 2; Gasser, *Protection of
    Journalists*, *supra* note Error: Reference source not found, at
    3-18.

[^585]: *Id.*

[^586]: Convention for the Protection of Cultural Property in the Event
    of Armed Conflict (The Hague Convention), arts. 1-4, 15, May 14,
    1954 (entered into force Aug. 7, 1956) *available at*
    http://exchanges.state.gov/education/ culprop/ hague.html (last
    visited Nov. 14, 2001) (on file with the Air Force Law Review).

[^587]: *Id.* at art. 21.

[^588]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 60.

[^589]: *Id.*at 64.

[^590]: *Id.*

[^591]: Air Force Instruction (Interservice) 31-304, Army Regulation
    190-8, OPNAVINST 3461.6, Enemy Prisoners of War, Retained Personnel,
    Civilian Internees and Other Detainee*s* (Oct. 1, 1997)
    \[hereinafter AFJI 31-304\]. (implementing Dep't of Defense
    Directive 2310.1, DOD Program for Enemy of War and Other Detainees
    (Aug. 18, 1994)). *See also* Army Field Manual 19-40, Enemy
    Prisoners of War, Civilian Internees, and Detained Persons (Feb. 27,
    1976).

[^592]: AFJI 31-304, *supra* note Error: Reference source not found, ¶
    1-4g.

[^593]: *Id.*

[^594]: Although this is a subsection of "Under Control of the Enemy,"
    this issue is more accurately entitled "Treatment of Persons in the
    Power of a Party to the Conflict."

[^595]: For U.S. policy on the United States' interception and treatment
    of Haitian refugees, *see* Exec. Order No. 12,324, 3 C.F.R. 180
    (1982), *reprinted as amended as* 8 U.S.C. § 1182 (1987); Agreement
    on Interdiction of Haitian Immigration to the U.S., U.S.-Haiti, 33
    U.S.T. 3559 (Sept. 23, 1981); Exec. Order No. 12,807, 57 Fed. Reg.
    23,133 (1992).

[^596]: Additional Protocol I, art. 75, *supra* note 2.

[^597]: Geneva Convention IV, arts. 16, 17, 23-26, 55, 59-62, 108-11,
    140, 142, *supra* note 2; Additional Protocol I, arts. 32, 48, 51,
    57, 58, 69, 70, 74, 76-78, *supra* note 2.

[^598]: Additional Protocol I, art. 75, *supra* note 2. For example*,*
    if the person also qualifies for POW status. If a refugee is hired
    by a state as a civilian employee or a contractor they may benefit
    from the protections of Geneva Convention III as discussed under
    "Prisoner of War Status" *infra* Part III.B.1.

[^599]: U.N. Refugee Convention, *supra* note Error: Reference source
    not found; Refugee Protocol I, *supra* note Error: Reference source
    not found.

[^600]: *See* [James C. Hathaway, The Law of Refugees]{.smallcaps} 132
    (1991).

[^601]: [Commentary, Additional Protocols]{.smallcaps}, *supra* note
    109, at 854-855.

[^602]: Geneva Convention IV, arts. 1-12, 27-46, *supra* note 2.

[^603]: *Id.*, art 73. This Convention does not define "refugee,"
    instead focusing on "protected persons," discussed *supra* note 2
    and accompanying text.

[^604]: *Id*.

[^605]: [Commentary, Additional Protocols,]{.smallcaps} *supra* note
    109, at 854-855.

[^606]: Additional Protocol I, art. 73, *supra* note 2.

[^607]: The commentary asserts that although the language of Additional
    Protocol I, art. 73, appears to limit these protections, when
    combined with art. 4 of Geneva Convention IV, there is no such
    limitation. [Commentary, Additional Protocols]{.smallcaps}, *supra*
    note 109, at 854.

[^608]: 1954 Convention on Stateless Persons, *supra* note Error:
    Reference source not found. The U.S. is not a party to this
    agreement. *See also* Convention Relating to the Status of Stateless
    Persons---Schedule (Sept. 23, 1954) *available at*
    http://www.unhcr.ch/refworld/refworld/legal/instrume/stateles/

    sched_e.htm (on file with author).

[^609]: 1961 Convention on Stateless Persons, Aug. 30, 1961, 989
    U.N.T.S. 175. The U.S. is not a party to this agreement*.*

[^610]: Geneva Convention IV, art. 44, *supra* note 2.

[^611]: *Id.* at art. 35.

[^612]: *Id.* at art. 27.

[^613]: *Id.* at art. 32.

[^614]: *Id.* at art. 28.

[^615]: *See supra* note Error: Reference source not found, and
    accompanying text.

[^616]: Geneva Convention IV, art. 30, *supra* note 2; Additional
    Protocol I, art. 74, *supra* note 2.

[^617]: Additional Protocol I, art. 74, *supra* note 2.

[^618]: *Id,* at art. 78.

[^619]: *Id*.

[^620]: *Id.*

[^621]: *Id,* at art. 33.

[^622]: *See id.* at arts. 59, 60 (safe zones will not be addressed in
    this article).

[^623]: *Id.* at art. 58.

[^624]: U.N. Refugee Convention, arts. 15, 16, 22-24, *supra* note
    Error: Reference source not found.

[^625]: *Id.* at arts. 13, 17, 18, 21, 26.

[^626]: OAU Refugee Convention, art. 2, *supra* note Error: Reference
    source not found.

[^627]: U.N. Refugee Convention, art. 31, *supra* note Error: Reference
    source not found.

[^628]: Also called non-refoulment. Geneva Convention IV, art. 44,
    *supra* note 4.

[^629]: The ICRC does not support this movement. Lavoyer, *supra* note
    Error: Reference source not found.

[^630]: *Id.*

[^631]: *Id.* The deficiencies were revealed by an examination on the
    law applicable to IDPs in the United Nations "*Compilation and
    Analysis of Legal Norms,*" U.N. Doc. E/CN.4/1996/52/Add.2.

[^632]: Guiding Principles, *supra* note Error: Reference source not
    found.

[^633]: *Id.* at Intro. ¶ 2.

[^634]: *Id.* at Intro. ¶ 3.

[^635]: *Id.* at 13-17, 24-30.

[^636]: *Id.* at Principle 2.

[^637]: Hague (IV) Annex, art. 50, *supra* note Error: Reference source
    not found ("No general penalty, pecuniary or otherwise, shall be
    inflicted upon the population.").

[^638]: *See* *supra* note Error: Reference source not found, and
    accompanying text.

[^639]: One commentator for the ICRC advocates an interpretation of the
    phrase "in the power of" when referencing a person under control of
    a party to the hostilities as including persons who are nationals or
    citizens of the party under which they are controlled. However, the
    commentator acknowledges that this is not a settled interpretation
    and that the U.S. does not advocate this position. [Commentary,
    Additional Protocols,]{.smallcaps} art. 78, *supra* note 109, at
    838.

[^640]: Convention on the Prevention and Punishment of the Crime of
    Genocide (Dec. 9, 1948) (entered into force on Jan. 12, 1951);
    *c.f.,* Michael P. Roch, *Forced Displacement in the Former
    Yugoslavia: A Crime Under International Law?* 14 [Dick. J. Int'l
    L.]{.smallcaps} 1, 20 (Fall 1995).

[^641]: For a discussion of Common Article 3, *see* "Common Article 3"
    *infra* Part III.B.6.

[^642]: Additional Protocol II, art. 17, *supra* note Error: Reference
    source not found; [Green]{.smallcaps}, *supra* note Error: Reference
    source not found, at 311-312.

[^643]: Additional Protocol II, art. 17, *supra* note Error: Reference
    source not found. These provisions are an extension of Geneva
    Convention IV, art. 49, *supra* note 2. [Commentary, Additional
    Protocols]{.smallcaps}, *supra* note 109, at 1473.

[^644]: Universal Declaration, arts. 13, 14, *supra* note Error:
    Reference source not found.

[^645]: U.N. Refugee Convention, art. 34, *supra* note Error: Reference
    source not found.

[^646]: Universal Declaration, art. 14, *supra* note Error: Reference
    source not found.

[^647]: *Id.* at art. 13; OAU Refugee Convention, art. 2, *supra* note
    Error: Reference source not found.

[^648]: *See, e.g.,* OAU Refugee Convention, art. 2, *supra* note Error:
    Reference source not found.

[^649]: *Id.* at arts. 1, 2, 4. Satisfying the definition of refugee
    laid out *supra* note Error: Reference source not found is not
    enough to be entitled to the protection of the Convention. There are
    a variety of provisions in the Convention that will eliminate
    protections to a refugee. For example, refugees who voluntarily
    regain their nationality, commit serious crimes of a non-political
    nature in the receiving state, war criminals, and others will not be
    entitled to the protections of the Convention. Arts. 1-3, *supra*
    note Error: Reference source not found.

[^650]: OAU Refugee Convention, art. 5, *supra* note Error: Reference
    source not found.

[^651]: United Nations Declaration on Territorial Asylum, art. 1, Nov.
    21, 1959, U.N. Doc. G/A1400 (XIV), *available at*
    http://www.unhcr.ch/refworld/refworld/legal/instrume/asylum

    /terrasyl.htm (on file with author).

[^652]: U.N. Refugee Convention, art. 32, *supra* note Error: Reference
    source not found.

[^653]: *Id.* at art. 33. Parties to the U.N. Refugee Convention are not
    prohibited during "war or other grave and exceptional circumstances"
    from taking provisional steps regarding a particular individual that
    the party believes are essential to national security while the
    party determines whether the person in question is a qualifying
    refugee and what, if any, measures are necessary for national
    security. Art. 9, *supra* note 105.

[^654]: Dep't of Defense Directive 2000.11, Procedures for Handling
    Requests for Political Asylum and Temporary Refuge*,* ¶ 3.1.1 (Mar
    3, 1972, Supp. Ch.1 May 17, 1973) \[hereinafter DODD 2000.11\].

[^655]: Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified
    in various sections of 8 U.S.C.).

[^656]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    3.1.2; Air Force Policy Directive 51-7, International Law, ¶ 14
    (Oct. 1, 1995) \[hereinafter AFPD 51-7\].

[^657]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    3.1.3.

[^658]: *See* Department of State Regulation, Request by Foreign
    National for Political Asylum (Jan. 4, 1972).

[^659]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    2.1, 2.2; Air Force Instruction 51-704, Handling Requests for
    Political Asylum and Temporary Refuge, Atch. 1 (July 19, 1994)
    \[hereinafter AFI 51-704\]; Army Regulation 550-1, Procedures for
    Handling Requests for Political Asylum and Temporary Refuge, ¶ 3
    (Oct. 1, 1981) \[hereinafter AR 550-1\].

[^660]: AFPD 51-7, *supra* note 655, ¶ 15; AFI 51-704, *supra* note
    Error: Reference source not found, ¶ 1.

[^661]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.1.2; AFI 51-704, *supra* note Error: Reference source not found, ¶
    1.1; AR 550-1, *supra* note Error: Reference source not found, ¶ 6a.
    Members of diplomatic missions, such as Marine Corps security
    guards, follow rules established by the Chief of Mission. *Id.* ¶
    4.2.1.3.

[^662]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.1.1.2; AFI 51-704, *supra* note Error: Reference source not found,
    ¶ 1.1.

[^663]: AFI 51-704, *supra* note Error: Reference source not found, ¶
    1.1.

[^664]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.1.3; AFI 51-704, *supra* note Error: Reference source not found, ¶
    1.1; AR 550-1, *supra* note Error: Reference source not found, ¶ 7.

[^665]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.1.3.2; AR 550-1, *supra* note Error: Reference source not found, ¶
    6a.

[^666]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.1.1.2; AFPD 51-7, *supra* note Error: Reference source not found,
    ¶ 15.1; *see* AFI 51-704, *supra* note Error: Reference source not
    found, ¶ 1; AR 550-1, *supra* note Error: Reference source not
    found, ¶ 6a.

[^667]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.1.4; *see* AFI 51-704, *supra* note Error: Reference source not
    found, ¶ 1.1; AR 550-1, *supra* note Error: Reference source not
    found, ¶ 6a.

[^668]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.2.1.2; AFI 51-704, *supra* note Error: Reference source not found,
    ¶ 1.2; AR 550-1, *supra* note Error: Reference source not found, ¶
    6b.

[^669]: AFPD 51-7, *supra* note Error: Reference source not found, ¶ 15;
    DODD 2000.11, *supra* note Error: Reference source not found, ¶¶
    2.2, 4.4.5.1, 4.2.2; AFI 51-704, *supra* note Error: Reference
    source not found, ¶ 2; AR 550-1, *supra* note Error: Reference
    source not found, ¶¶ 3, 6b.

[^670]: *See* AR 550-1, *supra* note Error: Reference source not found,
    ¶ 6b(1)(a).

[^671]: AFPD 51-7, *supra* note Error: Reference source not found, ¶ 15;
    AFI 51-704, *supra* note Error: Reference source not found, ¶ 2.

[^672]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.1.5; AFPD 51-7, *supra* note Error: Reference source not found, ¶
    15; *see* AFI 51-704, *supra* note Error: Reference source not
    found, ¶ 2.2; AR 550-1, *supra* note Error: Reference source not
    found, ¶¶ 6b, 7.

[^673]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.1.5.2; AFPD 51-7, *supra* note Error: Reference source not found,
    ¶ 15; AFI 51-704, *supra* note Error: Reference source not found, ¶
    1.2, 3; AR 550-1, *supra* note Error: Reference source not found, ¶
    7.

[^674]: DODD 2000.11, *supra* note Error: Reference source not found, ¶
    4.2.3; AFPD 51-7, *supra* note Error: Reference source not found, ¶
    15; AFI 51-704, *supra* note Error: Reference source not found, ¶ 5;
    AR 550-1, *supra* note Error: Reference source not found, ¶ 7.

[^675]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 50.

[^676]: *See* JP 4-0, *supra* note Error: Reference source not found, at
    V-5; [Lazareff]{.smallcaps}, *supra* note Error: Reference source
    not found, at 102. This is generally the case. However there are a
    few rare instances where U.S. forces and accompanying civilians may
    not be covered by the host nation law, even without SOFA protection;
    for example, if the U.S. is operating in the country during a
    full-scale conflict, or if there is no discernable local law due to
    local governmental collapse.

[^677]: *See* discussion under "Under Control of the Enemy" *infra* Part
    III.B.

[^678]: Sarnoski, *supra* note Error: Reference source not found, at 29.

[^679]: [Lazareff]{.smallcaps}, *supra* note Error: Reference source not
    found, at 3; Lieutenant Colonel Arthur C. Bredemeyer*, International
    Agreements: A Primer for the Deploying Judge Advocate,* 42 A.F.L.
    Rev. 105 (1997).

[^680]: Colonel Richard J. Erickson USAF, (Ret.), *Status of Forces
    Agreements: A Sharing of Sovereign Prerogative*, 37 A.F. L. Rev.
    137, 139 (1994).

[^681]: Bredemeyer, *supra* note Error: Reference source not found, at
    105; *Status of Forces Agreements: A Sharing of Sovereign
    Prerogative*, *supra* note Error: Reference source not found, at
    141. A&T (administrative and technical staff) status under the
    Vienna Convention on Diplomatic Relations, *supra* note 521, is the
    simplest form of the three forms and can be established through just
    an exchange of diplomatic notes, such as between a U.S. and another
    state's embassy. The A&T grants U.S. forces complete protection from
    the host nation's criminal jurisdiction, and from civil jurisdiction
    as it relates to acts performed in furtherance of official duty. The
    mini-SOFA addresses more issues than the A&T. Issues covered range
    from criminal jurisdiction (although not necessarily complete
    protection from jurisdiction of the host nation) to civil
    jurisdiction; local procurement; customs; claims to carrying of
    arms. A SOFA addresses the most expansive range of issues and is
    typified by the North Atlantic Treaty Organization Status of Forces
    Agreement, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243
    \[hereinafter NATO SOFA\]. *Status of Forces Agreements: A Sharing
    of Sovereign Prerogative*, *supra* note Error: Reference source not
    found, at 141-144.

[^682]: *Status of Forces Agreements: A Formal SOFA List*, Headquarters,
    United States Air Force, International and Operations Law Division
    (HQ USAF/JAI), 2 Oct 2001, at
    http://www.afjai.hq.af.mil/ilaw/sofa_data/jai_sofa_list.pdf (last
    visited Nov. 26, 2001). "Although there are 108 formal SOFAs, they
    have been concluded with 104 countries. . . . Regional distribution
    of SOFA coverage is as follows: for Africa 41.18% (21 out of 51
    states); for Asia-Pacific 47.37% (18 of 38 states); for Europe
    75.93% (41 of 54 states); for Latin America 40% (14 of 35 states);
    and for the Middle East 83.33% (10 of 12 states). The worldwide
    coverage is 54.74% (104 of 190)." *Id*.

[^683]: Major Jeffrey Walker, Headquarters USAF, International and
    Operations Law (JAI), Staff Study: The Status of Contractor
    Personnel in Air Force Operations---An International Legal Analysis
    5.a. (Apr. 2000) (unpublished document, on file with HQ AF/JAI).

[^684]: German Supplementary Agreement to the NATO SOFA, Aug. 3, 1959,
    T.I.A.S. No. 5351 (effective July 1, 1963), to the NATO SOFA,
    *supra* note 680, § 8 at 71.

[^685]: NATO SOFA, art. I, 1 a(b), *supra* note Error: Reference source
    not found.

[^686]: *See, e.g.,* Agreement Between the Government of the United
    States of America and the Government of the Kingdom of Tonga
    Concerning the Status of Members of the United States Armed Forces
    in the Kingdom of Tonga, U.S.-Tonga, Jul. 20, 1992, T.I.A.S. No.
    12523 ("As used in this Agreement, 'United States Personnel' means
    military and civilian personnel of the United States Armed Forces
    temporarily present in Tonga, as authorized by Tonga."); Agreement
    on Military Exchanges and Visits Between the Government of the
    United States of America and the Government of Mongolia, Jun. 26,
    1996, U.S.-Mongolia, (on file with HQ AF/JAI) ("Personnel -- The two
    sides understand this to refer to the military and civilian persons
    of Mongolia and the United States who are carrying out this
    Agreement.").

[^687]: *E.g.,* in the Republic of Korea military members, but not
    members of the "civilian component," are exempt from passport and
    visa laws and regulations. However, "\[m\]embers of the United
    States armed forces, the civilian component, and their dependents
    shall be exempt from laws and regulations of the Republic of Korea
    on the registration and control of aliens, but shall not be
    considered as acquiring any right to permanent residence or domicile
    in the territory of the Republic of Korea." Agreement Under Article
    IV of the Mutual Defense Treaty Between the United States of America
    and the Republic of Korea, Regarding Facilities and Areas and the
    Status of United States Armed Forces in the Republic of Korea, July
    9, 1966, U.S.-R.O.K., art. VIII, T.I.A.S. No. 6127, 17 U.S.T. 1677,
    674 U.N.T.S. 163 (entered into force Feb. 9, 1967).

[^688]: NATO SOFA, *supra* note Error: Reference source not found.

[^689]: JP 4-0, *supra* note Error: Reference source not found, at V-5;
    Headquarters USAF, International and Operations Law (JAI), Staff
    Study: SOFA Coverage of Contractors and Their Personnel (undated)
    (unpublished document, on file with HQ AF/JAI) \[hereinafter SOFA
    Coverage of Contractors and Their Personnel\].

[^690]: *See* W. Darrell Phillips, "Civilians in Operations" Lecture
    Outline, Air Force Judge Advocate General School, Maxwell Air Force
    Base, Ala., Apr. 2000; Squadron Leader Linda-Anne Griffiths, Rights
    and Obligations of Contractors Under Current Status of Forces
    Agreements to Which the United States is a Party, International and
    Operations Law Division, Office of the Judge Advocate General, USAF
    (July 1997) (unpublished manuscript on file with W. Darrell
    Phillips, Chief, International and Operations Law, Air Force Judge
    Advocate General School).

[^691]: Greek SOFA, *supra* note 35, ¶ C4(a), states:

    > The term 'civilian component' as defined in Article I, ¶ l(b), of
    > the NATO \[SOFA\], which may include dependents, shall also mean
    > employees of a non-Greek and non-commercial organization who are
    > nationals of or ordinarily resident in the United States and who,
    > solely for the purpose of contributing to the welfare, morale or
    > education of the force, are accompanying those forces in Greece,
    > and non-Greek persons employed by United States contractors
    > directly serving the United States forces in Greece.

    *See also* SOFA Coverage of Contractors and Their Personnel, *supra*
    note Error: Reference source not found.

[^692]: *See, e.g*., Status of Forces Agreement with the Bahamas
    (Defense Facilities), Apr. 5, 1984, U.S.-Bahamas, T.I.A.S. No.
    11,058, at art. 1, Definitions ¶(g); Greek SOFA, *supra* note 35,
    (in Greece, these members fall under the category of "civilian
    component" as defined in art. 1 ¶ 1(b) of the NATO SOFA, *supra*
    note 680).

[^693]: *See, e.g.,* Agreement Between the Government of the United
    States of America and the Government of Antigua Regarding United
    States Defence Areas and Facilities in Antigua, Dec. 14, 1977,
    T.I.A.S. No. 9054, 29 U.S.T. 4183 (entered into force Jan. 1, 1978)
    at art. 1, Definitions; Exchange of Notes (Availability of Certain
    Indian Ocean Islands for Defense Purposes (Diego Garcia and the
    Remainder of the Chagos Archipelago**,** Islands of Aldabra**,**
    Farquhar, and Desroches Constituting the British Indian Ocean
    Territory), Dec. 30, 1966, ¶ (10)(a), T.I.A.S. No. 6196, 18 U.S.T.
    28.

[^694]: Agreement Under Article VI of the Treaty of Mutual Cooperation
    and Security Facilities and Areas, and Status of Forces, Jan. 19,
    1960, U.S.-Japan, ¶ 1, T.I.A.S. No. 4510 (effective Jun. 23, 1960);
    Agreement under Article IV of the Mutual Defense Treaty (Facilities
    and Areas and Status of Forces), Feb. 9, 1967, U.S.-ROK, ¶ 1,
    T.I.A.S. No. 6127.

[^695]: *See* "Civilians in Operations," *supra* note 689; Griffiths,
    *supra* note Error: Reference source not found.

[^696]: *See, e.g*., Status of Forces Agreement Between the United
    States and the Federated States of Micronesia and the Marshall
    Islands Concluded Pursuant to Section 323 of the Compact of Free
    Association, May 24, 1982 & Oct. 1, 1982, art. I, ¶ 2(b), T.I.A.S.
    No. 11,671.

[^697]: *See, e.g*., Agreement Between the United States of America and
    Israel on the Status of United States Personnel, Jan. 22, 1991, art.
    XII (on file with HQ AF/JAI).

[^698]: AR 715-9, *supra* note Error: Reference source not found, ¶
    3-1g; FM 100-10-2, *supra* note Error: Reference source not found.

[^699]: AR 715-9, *supra* note Error: Reference source not found, ¶
    3-1g.

[^700]: A contractor paid \$18 million to the Hungarian government in
    value added tax for plywood the contractor flew into the country in
    fulfillment of its contract with the U.S. government. This amount
    was subsequently passed on to the U.S. in the contractor's invoice.
    The Army commander involved reportedly did not know about the
    importation of the plywood until the tax had already been assessed.
    *Contingency Operations: Opportunities to Improve the Logistics
    Civil Augmentation Program* (General Accounting Office, Washington
    D.C.) Feb. 11, 1997, GAO/NSIAD-97-63, at 8. The U.S. government
    challenged the Hungarian government to reimburse the funds, which it
    eventually did. *Planning: The Key to Contractors on the
    Battlefield*, *supra* note 408. In another instance, a contractor
    was taxed \$5 million, which it passed on to the U.S. Government.
    Griffiths, *supra* note Error: Reference source not found.

[^701]: Dowling & Feck, *supra* note Error: Reference source not found,
    at 63.

[^702]: SOFA Coverage of Contractors and Their Personnel, *supra* note
    Error: Reference source not found.

[^703]: [Lazareff,]{.smallcaps} *supra* note Error: Reference source not
    found, at 90, 92.

[^704]: JP 4-0, *supra* note Error: Reference source not found, at V-6.

[^705]: *Id.*

[^706]: For example, the U.S. and Germany concluded lengthy negotiations
    in 1998 that resulted in narrowing the definition of technical
    experts -- contractors requiring U.S. security clearances and/or
    with special skills not otherwise available in Germany. "Technical
    experts are given special customs, tax, and other privileges.
    Germany, like many other countries with high domestic unemployment,
    was interested in protecting their local labor force by not granting
    U.S. contractor personnel special privileges and benefits." SOFA
    Coverage of Contractors and Their Personnel, *supra* note Error:
    Reference source not found.

[^707]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 51-52, states:

    > \[M\]odern operations other than war often make the rapid
    > conclusion of a comprehensive and detailed status of forces
    > agreement difficult. First, the hope that the deployment will be
    > short in duration and the presence of many other pressing demands
    > on diplomatic resources tend to make the conclusion of a SOFA a
    > less-than-urgent priority. Second, the host nation---if it has a
    > functioning government at all---often may have no well-developed
    > or efficient apparatus with authority to negotiate and conclude
    > agreements. Third, even if the host nation is ready, willing, and
    > able to become party to a SOFA, our own laws and regulations place
    > significant though understandable constraints on who may negotiate
    > and conclude international agreements with foreign states and on
    > how that process must occur. Fourth, United States forces may be
    > present in \[the host nation\] representing either the nation or a
    > variety of multinational entities, creating a need for bilateral
    > as well as multilateral instruments.

[^708]: HQ AF/JAI, Status of Forces Agreements *available at*
    https://aflsa.jag.af.mil/GROUPS/

    AIR_FORCE/JA-O/ Intnlmain.htm (last visited Nov. 14, 2001) (on file
    with the Air Force Law Review).

[^709]: Air Force Instruction (Interservice) 51-706, Army Regulation
    27-50, SECNAVINST 5820.4G, *Status of Forces Policies, Procedures,
    and Law* ¶ 1-4, 1-6, App. B (Dec. 15, 1989) \[hereinafter AFJI
    51-706\].

[^710]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found (an outstanding resource for deploying without a
    SOFA).

[^711]: There are a few rare instances where U.S. forces and
    accompanying civilians may not be covered by the host nation law,
    even without SOFA protection. *See supra* note 675.

[^712]: *See* Richard J. Erickson, A Study and Comparison of Custody
    Provisions in Current Status of Forces Agreements, With Texts and
    Commentaries, International and Operations Law Division, Office of
    The Judge Advocate General (Sept. 22, 1995) *available at*
    https://aflsa.jag.af.mil/GROUPS/AIR_FORCE/JA-O/
    Custody%20Study%20(1995).DOC (an outstanding comparison of SOFA
    provisions).

[^713]: Telephone Interview with Dr. Richard J. Erickson, Deputy Chief,
    International and Operations Law Division, Headquarters, USAF,
    International and Operations Law Division (Apr. 19, 2001)
    \[hereinafter Erickson Telephone Interview\].

[^714]: This issue is occasionally discussed in academic and "real
    world" environments, although it has not been developed in scholarly
    publications. There are a number of excellent scholarly articles on
    SOFAs focusing primarily on military issues. *See, e.g.,* *Status of
    Forces Agreements: A Sharing of Sovereign Prerogative*, *supra* note
    Error: Reference source not found; Major Steven J. Lepper, *A Primer
    On Foreign Criminal Jurisdiction*, [37 A.F. L. Rev]{.smallcaps}. 169
    (1994); Keith Highet, et al., *Jurisdiction---NATO Status of Forces
    Agreement---U.S. Servicemen Charge with Criminal Offenses
    Overseas---European Convention on Human Rights*, 85 [Am. J. Int'l
    L]{.smallcaps}. 698 (1991); J. Holmes Armstead, Jr., *Crossroads:
    Jurisdictional Problems for Armed Service Members Overseas, Present
    and Future*, 12 [S.U. L. Rev]{.smallcaps}. 1 (1985); Captain Mark E.
    Eichelman, *International Criminal Jurisdiction Issues for the
    United States Military*, 2000 [Army Law]{.smallcaps}. 23 (2000). As
    for information focused on civilian issues, there is a three-page
    memorandum on FLITE Subj: Official Duty Assertions for Civilian
    Component Personnel In Italy (Sept. 16, 1999) (but no further
    identifying information) addressing this issue as presented in this
    section.

[^715]: NATO SOFA, art. VII, *supra* note Error: Reference source not
    found.

[^716]: *Id.*

[^717]: *Id.*

[^718]: *Id.*

[^719]: *See* "Status of Forces Agreements" *infra* Part III.C.
    Civilians that are nationals or ordinarily residents in the host
    nation will be subject to the exclusive jurisdiction of the host
    nation and not protected under the NATO SOFA. NATO SOFA, art. VII 4,
    *supra* note Error: Reference source not found.

[^720]: *Id.* (emphasis added).

[^721]: *Id.*

[^722]: Reid v. Covert, 354 U.S. 1 (1957); Kinsella v. United States *ex
    rel.* Singleton, 361 U.S. 234 (1960); Grisham v. Hagan, 361 U.S. 278
    (1960); and McElroy v. United States *ex rel.* Guagliardo, 361 U.S.
    281 (1960); United States v. Averette, 41 C.M.R. 363 (C.M.A. 1970).

[^723]: Erickson Telephone Interview, *supra* note 712.

[^724]: For a discussion of The Extraterritorial Jurisdiction Act of
    2000, *see* "U.S. Extraterritorial Jurisdiction" *infra* Part
    III.A.2.c.

[^725]: Erickson Telephone Interview, *supra* note 712.

[^726]: *Id.*

[^727]: [H. R. Rep No]{.smallcaps}. 106-778, 106^th^ Cong., 2d Sess.,
    pt. 1, at 7 (2000).

[^728]: Report of the Judge Advocate General of the Army 7 (Oct. 1,
    1998--Sept. 30, 1999) (discussing waiver of concurrent jurisdiction
    cases involving civilian component) *available at*
    http://www.armfor.uscourts.gov/annual/ FY99/FY99ArmyReport.pdf (last
    visited Nov. 14, 2001) (on file with the Air Force Law Review).

[^729]: [H. R. Rep No]{.smallcaps}. 106-778, 106^th^ Cong., 2d Sess.,
    pt. 1, at 7 (2000).

[^730]: Dep't of Defense Directive 5525.1, *Status of Forces Policy and
    Information* ¶1.3 (Aug. 7, 1979, Supp. through Ch. 2) \[hereinafter
    DODD 5525.1\].

[^731]: Erickson Telephone Interview, *supra* note 712.

[^732]: DODD 5525.1, *supra* note Error: Reference source not found, ¶
    4.1.

[^733]: *Id.*

[^734]: Erickson Telephone Interview, *supra* note 712.

[^735]: *See* AFJI 51-706, *supra* note Error: Reference source not
    found, ¶ 3-7b.

[^736]: DODD 5525.1, *supra* note Error: Reference source not found, ¶
    4.10.6.

[^737]: *Id.*

[^738]: AFJI 51-706, *supra* note Error: Reference source not found, ¶
    3-1.

[^739]: DODD 5525.1, *supra* note 729, ¶ 3 ("United States personnel" is
    not defined).

[^740]: Air Force Instruction 51-703, Foreign Criminal Jurisdiction ¶ 1
    (May 6, 1994) \[hereinafter AFI 51-703\].

[^741]: *Id.* ¶¶ 4.2.1-4.2.3.

[^742]: *See id.* ¶ 5.

[^743]: *See* DODD 5525.1, *supra* note Error: Reference source not
    found, ¶ 4.6; AFJI 51-706, *supra* note Error: Reference source not
    found, ¶ 1-7b.

[^744]: DODD 5525.1, *supra* note Error: Reference source not found, ¶
    4.6.1; *see also* AFJI 51-706, *supra* note Error: Reference source
    not found, ¶ 1-7b(1).

[^745]: AFJI 51-706, *supra* note Error: Reference source not found, ¶
    1-7b(1).

[^746]: AFI 51-703, *supra* note Error: Reference source not found, ¶
    4.2.2.

[^747]: *Id.*

[^748]: *See* DODD 5525.1, *supra* note Error: Reference source not
    found, ¶ 4.6.2; AFJI 51-706, *supra* note Error: Reference source
    not found, ¶ 1-7b(2).

[^749]: DODD 5525.1, *supra* note Error: Reference source not found, ¶
    4.6.2; AFJI 51-706, *supra* note Error: Reference source not found,
    ¶¶ 1-5, 1-7b(2).

[^750]: DODD 5525.1, *supra* note Error: Reference source not found, ¶
    4.6.2; AFJI 51-706, *supra* note Error: Reference source not found,
    ¶ 1-7b(2).

[^751]: AFJI 51-706, *supra* note Error: Reference source not found, ¶¶
    1-7b(2), 1-7b(3); *see also* DODD 5525.1, *supra* note Error:
    Reference source not found, ¶¶ 4.6.3, 4.6.4.

[^752]: AFJI 51-706, *supra* note Error: Reference source not found, ¶
    1-7b(4).

[^753]: DODD 5525.1, *supra* note Error: Reference source not found, ¶
    4.7; AFJI 51-706, *supra* note Error: Reference source not found, ¶
    1-7b(4).

[^754]: AFJI 51-706, *supra* note Error: Reference source not found, ¶
    1-8.

[^755]: AFI 51-703, *supra* note Error: Reference source not found, ¶ 5.

[^756]: AFJI 51-706, *supra* note Error: Reference source not found, ¶¶
    3-1-3-9; *see also* DODD 5525.1, *supra* note Error: Reference
    source not found, ¶ 4.10.

[^757]: DODD 5525.1, *supra* note Error: Reference source not found, ¶
    4.10.6.

[^758]: AFJI 51-706, *supra* note Error: Reference source not found, ¶
    3-4a.

[^759]: *Id.*

[^760]: *Id.* at ¶ 3-4b.

[^761]: 10 U.S.C. §1037 (as amended).

[^762]: AFJI 51-706, *supra* note Error: Reference source not found, ¶¶
    2-1, 2-2; DODD 5525.1, *supra* note Error: Reference source not
    found, ¶ 4.9 (discussing counsel fees for persons not subject to the
    UCMJ and in cases "of exceptional interest to the services
    concerned").

[^763]: AFJI 51-706, *supra* note Error: Reference source not found, ¶
    2-2c.

[^764]: *Id.* at ¶ 2-2d.

[^765]: *Id.* at ¶ 2-1-2-11.

[^766]: Erickson Telephone Interview, *supra* note 712.

[^767]: For information on other support issues not addressed herein,
    examine the references cited on civilian employees, contractors, and
    the media. Many policies and procedures on such things as lodging
    are laid out therein. For example, systems support and external
    theater support contractors and media are usually provided lodging
    equivalent to officers.

[^768]: DODD 1400.32, *supra* note Error: Reference source not found, ¶
    E.3.j.k.

[^769]: *Id.*

[^770]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    7.3.3.

[^771]: DODI 3020.37, *supra* note 47, ¶ E3.1.1.9.

[^772]: Army Policy on Contractors on the Battlefield, *supra* note
    Error: Reference source not found; DA Pam. 715-16, *supra* note
    Error: Reference source not found, ¶ 8-1. While the U.S. may be
    required to provide care, it is not necessarily required to provide
    care free of charge, so most civilian employees and contractors
    purchase insurance to cover the cost of care.

[^773]: DA Pam. 715-16, *supra* note Error: Reference source not found,
    ¶ 8-1.

[^774]: Army Regulation 40-3, *Medical, Dental, and Veterinary Care* ¶
    4-25 (July 30, 1999) \[hereinafter AR 40-3\].

[^775]: CLAMO Haiti Lessons Learned, *supra* note Error: Reference
    source not found, at 130.

[^776]: Air Force Instruction 44-103, *The Air Force Independent Duty
    Medical Technician Program and Medical Support for Mobile Medical
    Units/Remote Sites* ¶ 2.7 (Jan. 1, 1999) \[hereinafter AFI 44-103\].

[^777]: *Id.*

[^778]: Interviews, Lieutenant Colonel Andy Smith, Logistics Civil
    Augmentation Program, U.S. Army Materiel Command, Washington D.C.,
    May 9-11, 2000 (LTC Smith was the Army LOGCAP coordinator for this
    operation).

[^779]: *See* AFI 44-103, *supra* note Error: Reference source not
    found, ¶ 2.7; AR 40-3, *supra* note 773.

[^780]: *See* AFI 44-103, *supra* note Error: Reference source not
    found, ¶ 2.7.3.

[^781]: Army Field Manual 4-02.10, Theater Hospitalization ¶ L-2.g.
    (Dec. 29, 2000).

[^782]: Air Force Instruction 51-504, Legal Assistance, Notary, and
    Preventive Law Programs ¶ 1.3 (May 1, 1996) \[hereinafter AFI
    51-504\].

[^783]: *Id.* at ¶ 1.3.1; Army Regulation 27-3, The Army Legal
    Assistance Program ¶ 2-5a(6)(b) (Feb. 22 1996) \[hereinafter AR
    27-3\].

[^784]: AFI 51-504, *supra* note Error: Reference source not found, ¶
    1.4.

[^785]: AFPAM 10-231, *supra* note Error: Reference source not found ¶
    7.1; AFI 51-504, *supra* note Error: Reference source not found; AR
    27-3, *supra* note 782.

[^786]: AFI 51-504, *supra* note Error: Reference source not found; AR
    27-3, *supra* note Error: Reference source not found, ¶
    2-5a(6)(c)-(e).

[^787]: AR 27-3, *supra* note Error: Reference source not found, ¶
    2-5a(6).

[^788]: DODD 1400.32, *supra* note Error: Reference source not found, ¶
    E.3.o; AFPAM 10-231, *supra* note Error: Reference source not found,
    ¶ 7.1.

[^789]: DODD 1400.32, *supra* note Error: Reference source not found, ¶
    E.3.o; AFPAM 10-231, *supra* note Error: Reference source not found,
    ¶ 7.1; AR 27-3, *supra* note Error: Reference source not found, ¶
    2-5a(6).

[^790]: AFPAM 10-231, *supra* note Error: Reference source not found, ¶
    7.1; AR 27-3, *supra* note Error: Reference source not found, ¶
    2-5a(6).

[^791]: AFI 51-504, *supra* note Error: Reference source not found, ¶
    1.4. A staff judge advocate may also authorize non-mission related
    legal assistance for someone who is not otherwise an eligible
    beneficiary when the civilian has a legal problem related to a past,
    present or future military obligation, *e.g.,* the next-of-kin of
    someone killed on active duty. *Id.* ¶ 1.4.2.

[^792]: *See* AR 27-3, *supra* note Error: Reference source not found, ¶
    2-5c.

[^793]: AFI 51-504, *supra* note Error: Reference source not found, ¶¶
    1.7, 1.8.

[^794]: AR 27-3, *supra* note Error: Reference source not found, ¶
    2-5a(7); DA Pam. 715-16, *supra* note Error: Reference source not
    found, ¶ 2-2c(1).

[^795]: AR 27-3, *supra* note Error: Reference source not found, ¶
    2-5a(7).

[^796]: *Id.*

[^797]: AFI 51-504, *supra* note Error: Reference source not found, ¶
    2.1.5.