* forthcoming scholarship
Dan E. Stigall (DOJ – Office of International Affairs)
American University International Law Review, Vol. 25, pp. 101-130, 2010
The U.S. approach to armed conflict has recently undergone a profound shift as policymakers and military commanders have been forced to seek solutions to the seemingly intractable problems associated with developing countries and their relative instability. This focus on reconstruction and stabilization has led to the rise of “stability operations” – a relatively new addition to the military lexicon. Moreover, what is now called “stability operations” is a hybrid area that fuses a core military mission with a field of knowledge and experience that is dominated, at least in theory, by civilians. In that regard, there is another grey area surrounding the question of what conduct disqualifies a civilian from the protections and immunity traditionally given to civilians during armed conflict. The resultant lack of clarity can translate into significant legal consequences – both for civilians who are mobilized pursuant to such an effort and for U.S. policymakers who seek to criminalize the conduct of terrorists and insurgents.
This article explores the phenomenon of U.S. government civilians who engage in stability and reconstruction operations in conflict zones and their legal status under the law of armed conflict, paying specific attention to the corps of federal civilians being developed for this specific purpose: the Civilian Response Corps. Because the field of stability operations is a hybrid area that requires both civilian and military resources to attain a common objective, the objectives of each are conflated and, thus, necessarily colors the civilians engaging in such work with a belligerent hue. Ultimately, this article posits that the complex nature of civilian operations is such that neither the military nor civilians can be extricated from it and, as such, U.S. interests are best served by articulating a single, formal, and more restrictive interpretation of what it means to “directly participate in hostilities”.