Lieber Studies POW Volume Symposium – “Accompanying the Force” in Modern Armed Conflict

Editor’s note: The following post highlights a chapter of the Lieber Studies volume Prisoners of War in Contemporary Conflict, which will be published 3 March 2023. For a general introduction to this volume, see Professor Mike Schmitt and Major Christopher J. Koschnitzky’s introductory post.

Throughout history, non-military personnel have routinely accompanied fighting forces on the battlefield for purposes of providing their goods or services to armed forces, as well as to scavenge or loot. Over time, certain civilians such as “sutlers, editors, or reporters of journals, or contractors” (art. 50) were given protected status upon capture, which included “‘at least’ the same treatment as prisoners of war, provided they can prove that they are attached to an army” (p. 48-49).

With the evolution of modern technology, many civilians that are “accompanying the force” no longer need to be on the battlefield or “in the vicinity” of the armed forces they support. For example, logisticians, weapons maintainers, and communications supporters still accomplish tasks performed historically by civilians in close proximity to armed forces, but can now do so from great distances. Indeed, this trend of providing support from geographic locations far from the active battlefield will only increase as technology continues to evolve. Similarly, the development of the Internet and the onset of the Digital Age have facilitated cyber operations that have significantly expanded the geographic positioning and reach of individuals on battlefields.

“Accompanying the Force”

The historical development and current application of the law surrounding the civilians who accompany the force seem to assume that the protections provided to civilians accompanying the armed forces are based on both geographic proximity and function. For example, the Lieber Code indicated that civilians who receive these protections would be in the proximity of armed forces and serving particular functions (arts 49-50). The 1874 Brussels Declaration echoes the notion, stating that protection is warranted for civilians serving “in the vicinity” of the armies, and also serving those armies in particular ways (art. 34).

Nevertheless, while both elements support a State’s authorization, proximity seems to have become the threshold consideration.  For example, modern US practice as found in Army Regulation 715-9, Operational Contract Support Planning and Management states:

The [contractors authorized to accompany the force] will be issued an official Geneva Conventions identification card (either a DOD Uniformed Services Identification and Privilege Card, common access card (CAC) with Geneva Conventions identifier) . . . The CACs issued to [contractors authorized to accompany the force] are valid only while going through a processing center and while serving in the [area of operations]. The expiration date for CACs issued to CAAF will be the end of the period of employment within the [area of operations]. (para. 3-2e, f(2)).

A “Functional” Approach

As emerging technologies play an increased role in modern warfare, “accompanying the force” has less and less to do with proximity to the armed forces. Rather, determinations as to whether a particular civilian warrants the protections afforded by Article 4 of the Third Geneva Convention should be based on the function the civilian performs, particularly with regard to those civilians who are geographically separated from the actual conflict. This “functional” approach to status determinations would allow States to authorize geographically separated civilians as accompanying the forces for them to claim appropriate LOAC protections.

Therefore, States should adopt an approach where civilians outside the area of operations who serve the same or similar functions as those located within the area of operations receive similar authorization and subsequent prisoner of war status upon capture. Because advancing technologies now allow civilians to have a vital function in support of the armed forces who are not proximate to the armed conflict, protections should logically extend to these geographically distanced civilians as well.

Analyzing each civilian’s function on a case-by-case basis, including those performed at great distances from the battlefield, will more accurately reflect the protections that are warranted. Importantly, States can simply extend their authorization to geographically separated civilians if they determine that their function is analogous to those performed by civilians who are proximate. States can signal this authorization by issuing Geneva identification cards to these civilians. While not determinative with respect to the denial of status, issuing an identification card would secure this protection for persons who are later captured. In support of these changes, States should modify their military legal manuals to reflect this extended coverage, noting that lack of proximity is not a disqualifier in cases where civilians serve the same or very similar functions to those close to combat. Official statements would also cement this new approach.

The unfolding transition from heavy reliance on proximity to increased emphasis on function with geographically distanced civilians will allow States to more accurately reflect the realities of modern warfare and will extend protections in accordance with those realities.

***

Eric Talbot Jensen is a Professor of Law at Brigham Young University.

Photo credit: Unsplash