Unarmed but How Dangerous? Civilian Augmentees, the Law of Armed Conflict, and the Search for a More Effective Test for Permissible Civilian Battlefield Functions

In the approximate four years since the United States initiated military combat operations under the rubric of the Global War on Terror, the most highly visible legal issues have been the legality of the use of force and the treatment of detained opposition personnel. However, during this same period, U.S. planners and government legal advisers have struggled with another less sensational issue: the legally permissible role of civilians supporting these operations. While not a new issue, the unprecedented level of reliance on such civilian support, coupled with the ever-increasing technological sophistication of the contemporary battlefield, has pushed these civilians ever closer to performing roles historically reserved for uniformed personnel. Unfortunately, the rapidly evolving and ever increasing nature of civilian support has not been matched by any significant update to the decisional criteria for determining the legally permissible roles for such civilians. This reality has led to tremendous uncertainty at all levels of command. This is particular true during the current era of ever increasing pressure on operational commanders to maximize such civilian support in order to reduce demands on the uniformed force and increase the ?tooth to tail? ratio. There are several detrimental consequences that flow from this disparity. First, subordinate commands are left to ponder where the line of compliance is located. Second, abdicating the responsibility for determining what is or is not legal increases the possibility of disparate resolutions of this issue among different commands. Third, the lack of uniform decisional criteria disables the ability of strategic planning and force development because it is impossible to make any meaningful assessment of the legal constraints on civilianization. Finally, there is no effective standard available for the legal advisers who are called upon to recommend resolution of civilianization issues at the command levels responsible for compliance with this policy mandate.Throughout this era of increasing civilianization, reliance on the direct participation standard derived from the law of armed conflict has served as the primary criteria for defining permissible civilian support functions. However, this standard is no longer sufficiently effective to address this complex issue. While it is undoubtedly true that civilian support personnel are prohibited from performing any function that can legitimately be deemed to amount to direct participation in hostilities, this prohibition is not, as previously assumed, derived exclusively from the direct participation provisions of the law of armed conflict. Instead, it is derived from a much more complex interrelationship between the principle of distinction, the link between genuine military command authority and respect for the law of armed conflict, and an equitable synergy between the scope of command responsibility and the scope of command authority. This article will analyze the direct participation standard, and illustrate why it is no longer sufficient, either in scope or purpose, to provide a solution to this complex issue. The article will then propose a new test - the functional discretion test. The focus of this test will be the discretion associated with each function proposed for civilianization. In application, this test will assess the risk of law of armed conflict violation associated with the performance of each task. If the discretion associated with a task involves genuine risk of a violation of this law, it must be reserved for members of the armed forces. The article will then illustrate why this test is both more comprehensive than the direct participation standard, and more feasible in application. The article will also offer comparative illustrations for this proposition.The article will conclude with a proposal that the Department of Defense adopt this new standard, which will provide the foundation for a coding system for all functions associated with military operations. This will permit subordinate commands to effectively plan for the use of civilian support with a high degree of confidence that such use will be in compliance with law of armed conflict obligations and will carry minimal risk of exposing commanders to liability for the conduct of personnel over whom they lack proscriptive disciplinary authority.