Forward Unto the Digital Breach: Exploring the Legal Status of Tomorrow's High-Tech Warriors

In an air-conditioned compound far removed from the front line, a group of people clothed comfortably in khakis and polo shirts sit intendy in front of a large array of computer screens. Half of them sit in consoles that resemble mini-cockpits, with real-time video feeds enabling them to navigate through the skies. Hundreds of miles away, a formation of unmanned aircraft fly into position over an enemy convoy, launching multiple air-to-surface missiles and obliterating the target. None of the people in the room are enlisted personnel for either combatant. Rather, they work for the company that designed the system that allows planes to operate under remote control with great precision. Shortly after the successful attack, the enemy sends a commando unit to raid the compound. The unarmed employees put up no resistance, and all are kidnapped and taken behind enemy lines or to a location under the enemy's territorial control. Pursuant to the Geneva Convention, the enemy state affords the employees the full protection of the Convention.1 The enemy state, however, notifies the employees' government that it does not believe the employees are entitled to POW status and orders a tribunal to resolve the issue.2 Such a scenario3 highlights two seemingly irreversible trends in military affairs, the increasing automation of warfare and greater reliance on civilian contractors to perform essential military functions. The progress of these trends threatens to expose a gray area in international law. Civilian contractors are generally given the same protections as members of the armed forces of the nation they serve.4 In clarifying the protections offered to such persons, however, the text of the Geneva Conventions suggests that its drafters contemplated civilians operating only in a support capacity: construction, transportation, and other back-area functions designed to facilitate the jobs of soldiers in the field.5 A 1977 Protocol to the Convention specifically denies POW status to mercenaries-civilians who, among other things, engage in combat for private gain.6 While the high-tech warriors of the future will probably not qualify as mercenaries in a technical sense, they may operate outside the support role that civilians integrated into armed forces have recently held and on which international law has based their current legal rights. This Development seeks to clarify the extent of current international law's uncertainty with respect to a possible future of warfare with civilians engaging in "trigger-pulling" activities. This Development proposes that, for international conflicts at the very least, states should either confine "trigger-pulling" activities to enlisted personnel or integrate such persons to the highest degree possible. I. THE RUSH TO PRIVATIZE "While the US army has shrunk by a third since the end of the Cold War, the private military industry has grown rapidly."7 During the Gulf War, the ratio of private contractors to soldiers was one to fifty; in Iraq, the ratio is one to ten.8 The bulk of private contractor activity to this point has been logistical or support tasks, but increasingly the US military has turned to civilians to perform tasks that blur the line between contractor and soldier, such as operating drone aircraft and maintaining tactical systems.9 After the laser-guided missile entertainment show of the first Gulf War, the US took another technological step forward with the use of unmanned Global Hawk surveillance aircraft in Afghanistan. A companion model aircraft, the Predator, was also deployed, equipped with Hellfire air-to-surface missiles. Despite some technical difficulties with the Predator, military officials have expressed the view that such equipment represents the future of warfare.10 Technologically sophisticated warfare could potentially erode distinctions between different types of private military firms. A common typology used to differentiate these entities is "the tip of the Spear. …