A Response to Sean Watts by Geoffrey Corn

[Geoffrey Corn is an Associate Professor at South Texas College of Law]

Let me begin by extending my compliments to Prof. Watts for his exceptionally well-written article, and my thanks for his suggestion that I provide comment. I am also grateful to my friends at Opinio Juris for extending this opportunity to me—it is nice to be back!

CNA obviously represents one of the most complicated intersections between the evolution of military operations in the efficacy of the law of war regulatory norms. Prof. Watts carefully and comprehensively explains in his Article why the evolution of CNA infrastructure and architecture increasingly calls into question the underlying logic that animates the existing law of war framework for determining who may lawfully participate in hostilities associated with an armed conflict. In response to this evolution, Prof. Watts proposes a reassessment of this framework that would abandon the existing rules that limit participation in hostilities to members of the armed forces. Instead, he asserts that for purposes of CNA operations, the relationship between the operator and state authority should be the focal point of legitimate participation.

Prof. Watts makes a compelling case in support of his assertion that the traditional four element test for determining lawful combatant status (carry arms openly; wear a fixed distinctive emblem recognizable at a distance; operate under responsible command; and comply with the law of war) is functionally inapposite to CNA operations. This provides the foundation for what he suggests is a more logical focus to determine the permissibility of employing civilians as CNA operatives: relationship to state authority. According to Professor Watts, this revised focus would produce a more logical and credible criteria for the regulation of CNA operations. Ultimately, he concludes that because the traditional “combatant” qualification criteria—developed in large measure to enhance the ability of combatants to distinguish participants in hostilities from the civilian population—provides no meaningful regulatory benefit for CNA operations conducted “over the horizon” where the initiation of effect will almost inevitably be geographically attenuated from the impact of the effect, restricting participation in CNA operations is nothing more than empty formalism.

In essence what Prof. Watts has done is to expose an area of over-breath inherent in the regulatory regime of the law of war. The regime is premised on a system of group affiliations, with accordant consequences flowing from these affiliations. Combatants have a right to participate in hostilities, and as a consequence are presumed to be hostile and therefore subject to attack based solely on a status determination. That presumption is rebutted only when they are no longer capable of acting pursuant to the will of their group. Civilians are not permitted to participate in hostilities, and as a consequence benefit from a presumptive immunity from attack. That presumption is also rebuttable, but the burden is placed on the combatant to determine whether the individual conduct of a civilian justifies the loss of that immunity.

It is, of course, difficult to dispute that in the interest of providing operational certainty or clarity the law subjects members of the Armed Forces to an overbroad risk of harm and in the view of many provides civilians with an equally overbroad scope of immunity. This over-breath is clearly intended to mitigate the risk to civilians while at the same time to facilitate the ability of Armed Forces to bring their opponents to submission. Nonetheless, the reality that many members of the Armed Forces pose an insignificant or even nonexistent actual threat to their enemies, while many civilians engage in activities that could easily be regarded as even more threatening to the armed forces, reveals that the interest in establishing bright line categorizations based on the general assumption that members of the Armed Forces pose a threat while civilians do not, has led states to accept the consequences of this over-breath.

Presumptions, however, serve an important purpose: clarity and predictability. They also create an almost inevitable consequence of factual over-breath and under-inclusiveness. The classic illustration of this reality is the Miranda warnings requirement that has become perhaps the most widely known legal presumption in our society. It was clear when the Supreme Court created the presumption that a statement made during custodial interrogation was involuntary, the Court recognized the risk of over-breath. Nonetheless, the Court accepted that risk when it held that whether a suspect in fact understood her rights without a warning, or whether a suspect in fact did not fully understand them after a warning and waiver, would be irrelevant in future assessment of whether an individual’s response to custodial interrogation was voluntary. The reason for this seemed clear: the Court was willing to tolerate this inevitable over-breath and under-inclusiveness on the factual fringe in exchange for the far more important benefit the presumption would produce in the vast majority of cases.

I certainly appreciate the logical rationale of the proposal Professor Watts offers. However, I am not convinced that modifying the bright lines produced by the presumptions of the law of war in order to address the factual over-breath at the fringe is worth the cost of opening the door to altering the group based presumptions that define who may participate in hostilities. In my view, his argument is analogous to an argument that a police officer or a district attorney need not be advised of Miranda rights prior to custodial interrogation because doing so is really just adherence to empty formalism. Factually, this is undoubtedly true—such suspects probably know their rights better than most defendants who are advised of them. Nonetheless, I believe that in situations where the over-breath of such presumptions produces factual dissonance, the critical question is whether the value of complying with the presumption is more than mere formalism, but instead is a means of protecting the regulatory presumption to dilution.

I question whether Prof. Watts has provided an answer to that question. It strikes me that the many academic and military proponents of applying the traditional combatant/civilian dichotomy to CNA operatives—a position Prof. Watts discusses and challenges in his Article—are likely motivated by an analogous willingness to accept the risk of over-breath in order to achieve the advantage of clarity. The ultimate question that I believe must be asked before states discard what Prof. Watts characterizes as empty formalism in favor of his newly proposed state association test is how a simultaneous acknowledgment that the functions performed by civilian CNA operatives are indeed combatant functions is how deviation from the traditional presumptions will impact the evolution of the law in other areas.

To his credit, Prof. Watts points out that it is the attenuation from the traditional battlefield that in large measure justifies deviation from the traditional combatant civilian dichotomy and that his proposal should not be viewed as a general condemnation of that tradition. Nonetheless, I believe his proposal will beg the question: if state association should be the singular focus for determining who can engage in CNA operations when the operative is unlikely to be observed by the enemy and therefore will not implicate the principle of distinction, why shouldn’t that be the focus for determining who should engage in other activities associated with the infliction of kinetic and non-kinetic harm on an opponent so long as the operative is not in immediate proximity to the enemy? For example, how likely is it that an enemy will observe who is flying a bomber? So long as the bomber itself is distinguished from civilian aircraft, the logic applied to CNA operatives should extend to the bomber pilot? This is the door I think it might be wise to keep closed.

Ultimately however, I do believe Prof. Watts has added tremendous value to the discourse on the issue of CNA operations, and that his emphasis on the link between these operatives and state authority will bolster the view of many experts in the field that the potential consequences of CNA operations renders it imperative that states ensure a regulatory and disciplinary framework is applicable to individuals who engage in those operations. I, for one, am not ready to concede that it is a mere act of formalism to require that these operatives be members of the Armed Forces. However, by challenging convention—both literally and figuratively—Prof. Watts will force proponents of this position to consider not only the potential flaws in their positions, but also whether the benefit that might derive from adopting this proposal could ultimately outweigh the accordant risk.