With the continuing buildup of Chinese and Russian navies, as well as increasingly capable regional actors, the task of leveraging a 300 ship US Navy using distributed lethality (DL) as a force multiplier in response remains a formidable task. It is reminiscent of another period in our history when our scientists and engineers had to conjure a way to prolong a life sustaining air supply while constrained to only limited resources available to a stricken space craft. Most of us are familiar with the story of Apollo 13 astronauts using duct tape and plastic bags to adapt parts never intended to work together in order to return safely back to earth. Those scientists and engineers toiled feverishly with various configurations before agreeing on a workable course of action. The birth of distributed lethality is similarly constrained, but with a much larger mission and far-reaching consequences.
[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]
BRAVO ZULU to the tacticians and engineers who adapted the SM-6 surface-to-air missile (SAM) to a surface-to-surface missile (SSM) to rapidly extend the stand-off range for our surface action groups (SAG). It is encouraging that these innovators were not dissuaded from their pursuit by the arguments against using an air warhead against a surface target or the $4M cost per unit or the command and control implications of shooting at a target so many miles over the horizon potentially dispersed among friendly vessels. This is an innovative first step to demonstrate the capability. The necessary refinements will follow as the value of this new weapon becomes accepted and integrated into battle group tactics.
Figure 1. Air Cushioned Vehicle easily maneuvers over a rocky beach.
Let’s examine the advantages of the SM-6 in the SSM mode and why this adaptation is a smart and innovative use of existing ships and munitions. The missile dimensions are the same as the SM-6 in the SAM mode which allows the use of existing launchers and platforms. Crews are in place. As mentioned previously, the stand-off range is substantially improved. The kill probably of a continuous rod or fragmentation warhead against hardened ship targets is unlikely; however, a soft kill of the target’s sensors and communications antennae, at least initially, is almost as good as sinking it. It will likely blind the enemy’s fire control systems. The allocation of missiles in the ship’s missile magazines for SSM versus SAM targets is an old discussion and is only appropriate when discussed relative to the expected opposing force. Another potential negative is the $4M cost of these missiles. But nonetheless, this is a step in the right direction and is in alignment with distributed lethality.
Where else can the US Navy apply this type of innovative thinking to further increase lethality? How do we out gun, out run, and out maneuver opposing forces using the current inventory of platforms, weapons systems, C2, and manning? Why not reconfigure the 1st generation Landing Craft Air Cushioned (LCAC) into shooting platforms? The VLS Hellfire missiles can be mounted in the cargo deck. Pedestal-mounted APKWS missiles could be similarly mounted. Chain guns such as the M61 Vulcan 20mm Cannon or the Mk38 25mm machinegun can all be mounted in the cargo deck for line-of-sight targeting. This craft has demonstrated 100 knots speeds. Its ability to maneuver in shallow water, reef zones, shifting sand bars, riverine, and beach zones gives it the maneuverability of no other afloat vehicle. This tactical advantage of speed and maneuver cannot be matched. It travels at near-helicopter speeds, can carry 10 times the helicopter’s payload, with four times the on-station time. It could be configured with an AEGIS Ashore Missile Payload and positioned at many improved and unimproved sites.
Initially, targeting can be line-of-sight with over-the-horizon targeting when DL integration development progresses. We have seen enemy fighters using mosques and urban
Figure 2. Air Cushioned Vehicle maneuvers from an obscure beach.
areas to shield them from incoming fire. We can expect enemy maritime forces to use fishing, merchant vessels, and fleeing refugees as defensive shields. Engagement criteria, for at least the initial engagement skirmishes, will be line of sight positive identification via manned observation or remote observation. Clear Rules of Engagement (ROE) will need to be developed and practiced. Greater forward force autonomy should be anticipated to ensure engagement success.
The air cushioned vehicles will be positioned forward of the battle group in picket roles in archipelagic regions or in strategic straits such as the Strait of Hormuz where the shifting sandbars are not an obstacle to maneuvering for these vehicles. Their maneuverability will allow them to cut the escape routes of marauding high speed conventional craft who traverse narrow channels with impunity because they know the potential of grounding a chasing naval vessel is an unacceptable risk to the USN. Submarine based threats and mined areas are also of limited concern for a vessel that has no draft.
But these air cushioned vehicles are not suitable to plow through high seas. How can we get them to theater and provide operating support? Platform Supply Vessels (PSV) have been performing this type of role in the off-shore oil industry for three decades. They have transported the heavy equipment and operating supplies that allow oil rigs to operate at sea for long periods. These vessels are designed to carry a tremendous volume of drill mud, fresh water, and fuel needed for use in off-shore oil drilling. The drill mud storage tanks can be used to ballast down the stern and allow self-propelled access to air cushioned vehicles. They are rugged vessels and are built to withstand the rigors of high seas. In the
Figure 33. PSVs can carry Air Cushioned Vehicles to theater on this wide open deck.
post-Deepwater Horizon off-shore oil industry, they have reduced the high insurance costs of hoteling crews on the rigs by providing hotel services on the PSVs. As a consequence of the shale oil revolution and low world oil prices, new PSVs are tied to their piers because operating them is no longer profitable. They are available for lease, purchase, or contracted services.
As the new LCAC 100 comes into service, the old LCACs are headed to the scrap pile. Why not reconfigure them with modular weapons to give the US Navy a combatant craft that can out gun, out run, and out maneuver opposing forces?
John Devlin is Director of Navy Programs with ISPA Technology and a retired US Navy Captain. He was a Tactical Action Officer (TAO) in carrier battle groups as a Surface Warfare Officer and has experience in littoral operations as a Special Operations Officer.
[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]
Distributed lethality offers an innovative way ahead for the US Navy’s surface forces by returning them to a sea control role, detached from HVT defense and grouped into hunter-killer SAGs designed to complicate adversary targeting efforts, deter adventurism, and reassure allies and partners. This has been couched in terms of an “operating concept” and not a strategy, per se, but its implementation will certainly produce strategic effects. Distributed lethality amounts to a form of strengthened dispersal, designed as a direct counter to anti-access/area denial (A2/AD) strategies [1] while increasing the deterrence value of USN forces. The US Navy has already made strong efforts to find “least-cost” paths toward achieving the desired increases in lethality and survivability of surface platforms. The long term implications of distributed lethality may necessitate a revised USN approach to basing and shipbuilding – it could also prompt regional arms races as potential adversaries respond to distributed lethality by expanding their ISR and A2/AD capabilities in kind.
[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]
The strategic implications of employing USN surface forces using Distributed lethality concepts are considerable. Operationally it acts as a direct response to A2/AD concepts, complicating adversary sea denial efforts by filling the sea space with small groups of well-defended, heavily armed platforms, each of which is capable of producing additional deception and counter-targeting effects. Politically, doubling down on presence in the form of surface combatants will reinforce deterrence by complicating the operational picture, enable persistent challenge to the excessive maritime claims of regional actors, and counter larger strategies designed to weaken US influence. By creating uncertainty on the part of potential adversaries, distributed lethality ”…aims to degrade an adversary’s confidence in their weapons rather than through overwhelming force…,”[2] fundamentally altering calculations of risk and lowering the potential payoffs of initiating hostilities. Distributed lethality also acts to reassure and support US partners and allies by providing consistent presence and support, strengthening our coalitions abroad.
It is in the economic details that the viability of distributed lethality becomes a bit murkier. In the short term, the Navy has actually done very well by capitalizing on existing systems. Rapid acquisition and fielding efforts are currently underway to build a long-range strike capability to replace the aging Harpoon by adapting existing systems; possibilities include the Long Range Anti-Ship Missile (LRASM), the Norwegian Kongsberg Naval Strike Missile [3], the SM-6 [4], and a proposal to modify existing stocks of TLAMs for anti-ship missions [5]. Survivability has also been addressed in the same way with an ongoing project to update and integrate SeaRAM [6]. All of these efforts are a testament to the Navy’s commitment to implement distributed lethality without calling for larger budgetary outlays. This makes distributed lethality easier to sell on the Hill and allows the Navy to claim the high ground on this issue in terms of resource utilization.
Norweigan Strike Missile (NSM) launch.
None of this changes the arithmetic of force generation required to create persistent presence. There are only so many forward deployed platforms overseas, certainly nowhere near enough to complicate the operational picture of potential adversaries. Sooner or later the Navy will need to reassess its ability to support distributed lethality with current platforms, systems, and budgets; achieving the desired effects (dispersal and deterrence) will require cost-effective numbers of platforms to be maintained on-station. Surface combatants will need to transit back and forth from CONUS bases, taking up large periods of time moving to and from operational areas.
In order to maximize loiter time and capitalize on existing platforms, the Navy should take a long hard look at the forward basing of more surface combatants. This will require close engagement with host nations and long term investments in infrastructure; shipyards, repair facilities, distribution centers, housing, and administrative activities would all need to be expanded to support additional hulls. The LCS, although designed as a littoral platform specifically in response to swarming attacks, partially fulfills the requirement for numbers of hulls, although the details of this system are still being worked out and the Navy is now working on an expanded “fast frigate” concept based on the LCS[7]. Small surface combatants have been proposed as a partial solution[8], offering cost-effective platforms that can be produced in quantity – but not without some compromises in survivability. It seems certain that the Navy will have to seek a balance of quantity and quality, and this will require a reassessment of design concepts.
Morning colors at Naval Support Activity Bahrain (US Navy photo).
Finally, by its very design, distributed lethality is intended to elicit a desired reaction on the part of potential adversaries[9]. A2/AD strategies were adopted by regional actors as an asymmetric response to US power projection capabilities, in direct support of their perceived interests; these countries will not simply drop this approach in the face of multiple hunter-killer SAGs operating nearby. They will undoubtedly expand their investment in ISR and A2/AD capabilities, responding with both increased quantity and quality of their own. This increased expenditure of resources will produce comparatively greater strain on the more modestly sized and resourced militaries of these countries, many of which already labor under sanctions. Technological and industrial competition will almost certainly increase as a result. Luckily, as the world leader in innovation, such a situation would favor the US, but only in general terms and with considerable uncertainty.
LCDR Josh Heivly is an active duty Navy Supply Corps Officer. The views voiced here are his alone and in no way represent the views of the US Navy or the Department of Defense.
[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]
In simplest terms, the U.S. Navy’s distributed lethality concept complicates the enemy’s targeting problem by dispersing larger numbers of platforms capable of offensive action over a wide geographic area. With no significant increases in fleet size anticipated for the foreseeable future, it is incumbent that all avenues be pursued that will optimize the use of scarce ships.
[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]
A video recently released by the Surface Force U.S. Pacific Fleet shows a variety of ships besides surface combatants equipped with anti-ship missiles and unmanned aircraft capable of targeting these weapons. In addition to amphibious vessels, a Lewis and ClarkDry Cargo/Ammunition ship is depicted (minute 1:21) with a drop-in missile module. This ship, and 29 others in the U.S. Navy’s Combat Logistics Force (CLF), are controlled by the Military Sealift Command (MSC) and manned by professional civilian mariners (CIVMARS). The introduction of armed naval auxiliaries in the U.S. fleet would raise a number of important operational and legal questions.
In what sort of tactical situations might an offensively-armed replenishment ship be worthwhile? Distributed lethality requires distributed logistics. Meaning, surface combatants operating alone or in small groups will require fuel, food, ammunition, and parts. In a major theater war, traditional replenishment ports will be placed at risk by mines, theater ballistic missiles, terrorist surrogates, and other area-denial capabilities. To mitigate these risks, underway replenishment has been a mainstay of U.S. naval surface ship operations for nearly a century. A CLF ship armed with self-defense weapons and a small number of medium ranged surface-to-surface missiles operating in tandem with a group of cruisers and destroyers (CRUDES) provides additional magazine capacity for the surface combatants.
Conversely, oilers operating solo while transiting to or from underway replenishment stations are an appetizing target for would-be adversaries. In some cases, these ships would require a dedicated “shotgun” surface combatant to protect their precious cargoes. But these escorts would take scarce CRUDES ships away from other offensive duties. CLF ships equipped with additional self-defense weapons, be they remotely-operated crew served machine guns or short-ranged surface-to-air missiles (like the SeaRAM), will enable defense against a variety of potential attackers. However, the possibility that CLF ships are capable of not just defending themselves, but of fighting back, will challenge indirect enemy strategies that rely on attrition of our logistic forces. A CLF ship would target its over-the-horizon weapons by either cueing off another platform’s sensors or using organic manned or unmanned aircraft. These ships sometimes deploy with MH-60s, which can carry their own weapons, but can also assist in targeting a ship’s missiles. For longer ranges, future unmanned air vehicles such as DARPA’s TERN prototype could support CLF-launched missile engagements over hundreds of miles. Besides the aforementioned weapons, CLF ships providing replenishment operations within adversary threat envelopes will need to employ counter-targeting techniques and some will carry Surface Ship Torpedo Defense Systems.
Non-traditional or Normal?
I’ve been guilty of using the phrase “non-traditional” naval vessels when referring to auxiliaries engaged in naval operations other than logistics. A recent example would be MSC’s Expeditionary Fast Transports serving as Partnership Station platforms. Historically, however, civilian-run shipping has been integral to naval warfare for as long as humankind has fought on the seas. Lincoln Paine discusses a number of non-traditional fleets in The Sea and Civilization, an amazingly comprehensive chronology of all aspects of maritime trade and warfare. In lieu of a powerful navy, the early Roman Empire established coloniae maritimae (maritime colonies), which exempted their men from service in the legions in exchange for their promise to destroy invading enemy vessels. A millennium later, Byzantium held off Muslim invaders at sea with a largely provisional force of merchants and fishermen. In the 19th Century, pirates turned privateers were engaged as naval commerce raiders by various states including Spain, Mexico, and the Republic of Texas.
In World War I, the British Admiralty encouraged merchant vessels to arm themselves with deck guns, ostensibly for the purposes of defense. Some of these merchants took it upon themselves to actively attack German shipping, often using false flags. The German Empire, as one might expect, grew to view these vessels as belligerents, rather than as neutral shipping, a role they were initially accorded by international law. Then in World War II, thousands of American merchant ships were protected by Naval Armed Guards, who manned anti-aircraft weapons and up to 3″ deck guns. Merchant mariners supported these gun crews by passing ammunition, but were also trained to employ the weapons when necessary, and many did so, distinguishing themselves in battle.
Historical Precedence: Naval Armed Guard Sailors Man the stern 6″ (15.2 cm) gun on S.S. Mongolia in May 1917 (U.S. Naval Historical Center Photograph # NH 41710) .
More recently, we’ve watched the emergence of China’s rather sizable maritime militias, which are a key aspect of the PLAN’s expansion strategy in the South China Sea. These sorts of maritime surrogates have kept up with changing naval technology. Today, instantaneous data communications have made over-the-horizon networked targeting by civilian craft a distinct possibility. Additionally, concealable anti-ship weapons, such as Russia’s Club-K containerized missile system, could raise the threat posed by merchant shipping. These non-traditional fleets are not anomalies, but rather mainstays of offensive naval warfare. How does this historical reality reconcile with modern legal norms of international armed conflict?
Nuances Riding on a Single Letter
Traditional prohibitions against civilians taking a direct part in hostilities are based on a duty to discriminate between combatants who may be lawfully targeted and non-combatants who may not be intentionally targeted. International humanitarian law is also designed to protect duly-recognized combatants from prosecution and provide for status as prisoners of war. In modern times, these distinctions have been interpreted to prohibit civilians aboard a warship from serving as a weapons release authority or standing tactical watches. Besides CIVMARS, a host of civilians routinely ride naval ships, including maintenance contractors, college instructors, and Morale, Welfare, and Recreation planners; all of course, in non-tactical roles.
The hidden shipping threat: Russian Club-K containerized missile system.
To understand the legal nuances behind arguments for and against non-traditional naval vessels undertaking offensive operations, it’s worth examining the distinction the U.S. Navy makes between warships and naval auxiliary vessels.[1] In accordance with Navy Regulations, Article 1259, a commissioned warship – designated USS – requires “a personal flag or command pennant of an officer of the Navy, or a commission pennant.” U.S. Naval Ships (USNS) operate under the control of civilian mariners, and therefore do not technically qualify as warships. Under the same regulations, in some circumstances, a USNS ship can be reclassified as a USS hull, but this requires approval by the Secretary of the Navy. These conventions are supported by Article 29 of the United Nations Convention on the Law of the Sea (UNCLOS), which states a warship is “a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” The 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea also provides a non-binding, but widely-accepted view of naval auxiliaries in warfare.
Auxiliaries are vessels, other than warships, that are under the exclusive control of the armed forces of a state. Some interpretations of international law infer that naval auxiliaries (non-warships) may defend themselves and other friendly forces in the vicinity, but may not be used to conduct offensive belligerent acts. Under the strictest legal interpretations, MSC ships would be prohibited from a range of activities to include launching anti-ship weapons, but also to missions as innocuous and defensive as clearing a channel of mines for the safe passage of commercial shipping. International agreements are important, but we should not ignore historical precedence and operational necessity that may force auxiliaries into combat roles. As further precedence, not every vessel conducting offensive missions in the U.S. Navy meets the criterion required for warship. For example, combatant craft of the Navy’s Special Boat Teams and Coastal Riverine Squadrons are not commissioned warships, but may carry out offensive operations. Of course, these boats are run by Navy crews, and a commissioned officer resides at some point in their chain of command (though not always embarked).
Embarked Security Team (EST) watchstander on the Military Sealift Command’s Expeditionary Fast Transport (T-EPF-1) in Sekondi, Ghana, Feb. 14, 2015 (US Navy photo).
Given generally-accepted views of international law, what are the alternatives available to include naval auxiliaries as offensives nodes in a distributed lethality regime? A handful of warships in the U.S. Navy, including USS Ponce (AFSB(I) 15), two flagships, and submarine tenders, feature a hybrid crewing model. These ships are commanded by a commissioned naval officer, though their navigation and engineering functions are primarily conducted by CIVMARs. This hybrid crewing approach enables them to conduct or command offensive operations in accordance with international law. Implementing this approach on a wider scale would require the reclassification of armed CLF ships to USS and the introduction of permanent Navy crews, an option not necessarily supported by today’s manpower budgets.
Embarking military detachments to operate defensive and offensive weapons might be another acceptable alternative. Over the past few decades, the combat logistics force has transitioned from USS ships, to USNS ships embarking military detachments (MILDETS) run by a junior surface warfare officer, and now to primarily USNS ships with no MILDETS. When embarked, MILDETS mostly handled command and control (C2) functions. Many of these roles have been absorbed by CIVMARS, but others, like operating self-defense weapons, are still supported by embarked Navy security teams. It’s possible that arming a CLF ship and operating its weapons systems with a MILDET, without reclassifying it as USS could put a ship’s status as naval auxiliary in jeopardy during hostilities. However, like merchant shipping that was targeted during the World Wars, that becomes largely an irrelevant academic argument once ordnance starts flying and logistics ships become primary targets themselves.
In an era of declining Navy end strength and increasing personnel costs, it is no longer fiscally prudent to assign full time military detachments to every ship that might require one in wartime. The Navy’s reserve component (RC) provides a feasible C2 alternative which can be surged forward during contingency operations, while meeting legal and operational requirements for offensive operations. In recent years, military detachments for theater security cooperation missions onboard MSC ships have been created ad hoc from cross-decked active duty Sailors or sourced from existing staffs such as Destroyer Squadrons. In the event of a major contingency, it is likely that these staffs will be tied up with their primary missions and unable to dedicate manpower to supporting auxiliary C2 requirements. In recognition of these demands, the Military Sealift Command recently established a dedicated Navy Reserve unit designed to provide C2 elements for MSC ships involved in non-logistics missions. This nascent capability has been demonstrated with embarked detachments onboard various MSC ships during fleet exercises and security cooperation missions.
The expansion of additional RC military detachments should be explored that support not only theater security missions, but future offensively-armed combat logistics force ships. The advantages of this capability residing in the reserve force are several: The first relates to cost. On average, a part-time reservist costs the navy approximately one fifth of an active duty Sailor. In peace-time, reservists would train for the mission by embarking CLF ships to support weapons testing and fleet exercises, and surge forward if required for contingency missions. Additionally, reserve Sailors, some of them with licensed merchant credentials themselves, have a strong knowledge of MSC ship unique operating procedures and understand how to integrate well with CIVMARs. The habitual relationships dedicated reserve units build with CIVMAR crews have proven valuable in other missions.
Regardless of whether the decision is made to increase the weapons capabilities of our Military Sealift Command ships, additional RC detachments would provide the legal and operational top-cover necessary to perform other traditional naval operations on these vessels in peace and war to include maritime security operations, mine-countermeasures, special operations direct action support, and amphibious raids.
Chris Rawley is a Captain in the U.S. Navy Reserve and serves as Commanding Officer for the Navy’s sole unit dedicated to providing command and control detachments aboard Military Sealift Command vessels. The opinions and views expressed in this article are those of the author alone and are presented in his personal capacity. They do not necessarily represent the views of U.S. Department of Defense, the U.S. Navy, or any other agency.
[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]
[1] The author is not an operational law attorney. The reader is encouraged to seek out other legal interpretations.
By Tony Freedman with contributions from Mark Rosen
What are the legal implications of arming MSC ships, both for self-defense and for a more robust offensive role?
With the apparent shortage of amphibious ships, the prospect of using Military Sealift Command’s (MSC) auxiliary ships to add depth to Navy and Marine Corps operations is being considered. These ships could be used to supplement the low end of military operations to provide sealift for missions such as a humanitarian assistance/disaster relief (HA/DR) and noncombatant evacuation. They could also provide an alternative platform for high end operations, such as launching offensive weapons, or become a floating base to support offensive operations. However, these ships are not a simple substitute for combatants or amphibious ships. Operationally, they lack ship-to-shore connectors and communication systems, and are not survivable (built mostly to commercial, not military standards). Additionally, these ships are currently not equipped to defend themselves. While adding weapons would not increase the ship’s survivability, it would provide some defensive capability and the potential to conduct offensive missions. This changes the nature and role of these ships. Unlike warships, these ships are manned by civilian crews, either Civil Service Mariners (CIVMARS) or licensed U.S. citizen contract mariners (CONMARS), which introduce questions regarding their legal status if weapons systems are added to the mix.[1]Despite legal reviews by MSC and Navy legal experts, the use of civilian manning is relatively untested and may pose a legal risk to civilian crews. Below, we outline legal precedents that come into play in regard to risk to civilian crews. There are two main aspects of concern: first is the potential lack of legal protection and the second, the willingness of crews to potentially go into harm’s way.
[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]
The first concern is the potential lack of legal protection under article 4 of the Geneva Convention. Under the law of armed conflict (LOAC), civilians that support military operations receive legal protections including prisoner of war (POW) status. While MSC ships crews always have the right to self-defense, their legal protections depend on whether the individual is classified as a lawful combatant or not. The key is whether the activities conducted by the civilians are considered to be “belligerent.”[2] Even though civilians may accompany the armed forces they may not be intentionally targeted and, if they are ever captured, would be entitled to POW status. However, civilians that “cross the line” and involve themselves in belligerent activities would not be entitled to the combatant privilege (immunity). In other words, they can be prosecuted as common criminals or worse as illegal combatants. The civilians would risk prosecution by the International Criminal Court or some other body if an “offense” occurred in an adversary’s territorial waters.
Historically, U.S. policy safeguards civilians from conducting belligerent duties, per se, by aligning with internationally recognized roles for authorized civilians who accompany the armed forces, such as deck, engineering, purser, or supply duties that do not cause direct impact on the enemy. Civilians that command or man weapons systems (apart from self-defense purposes) do have a direct impact. In line with U.S. policy, naval auxiliaries have been operating for many years and maintain their status as “state vessels,” which are entitled to sovereign immunity so long as the vessel is operated for non-commercial service and does not engage in belligerent acts.[3] In spite of these distinctions, a hostile nation could take a more restrictive view by viewing the ship holistically as a single unit, meaning any civilian aboard the ship vicariously participates in any activities that the ship conducts against the enemy.
The second concern with the addition of weapons, particularly offensive weapons, is the willingness of civilian crews to operate these ships in forward locations. One compounding issue that needs to be resolved is whose authority does the civilian crew fall under: military or civilian? Many scholars contend that the concept of “regular armed forces discipline” applies to civilian crews as it does for military crews. In 2007, the Uniform Code of Military Justice (UCMJ) was amended to allow for civilian personnel accompanying or serving with the armed forces to be subject to the UCMJ during contingency operations. However, the constitutionality of this amendment is not yet settled. Specifically, U.S. citizens are afforded certain trial rights (to include jury trials) under the Fifth and Six amendments of the U.S. constitution that military members do not enjoy.
We conclude that the use of weapons aboard MSC ships is appropriate if used for defensive purposes. However, there still remains a risk to the civilian crews with regard to whether these weapons can be used in certain roles which approach belligerent activities, for instance, if the weapons are operated by military personnel with direct civilian support. Direct use and control of weapons by civilians could place the crew under risk of prosecution if captured by a foreign adversary. Furthermore, there is the potential for unintended consequences and risk to future U.S. operations. As a leader in international law and in naval operations, the United States should not set a precedent for confusion between belligerents and non-belligerents which could result in a breakdown of LOAC/LOS norms that we depend on. If the world loses confidence in the LOAC because the U.S. is perceived as ignoring the rules, then the U.S. could lose the rights and protections assured by LOAC, such as sovereign immunity for our ships in foreign ports.
Dr. Tony M. Freedman is a senior research scientist at CNA; he has led studies on mine warfare, non-traditional platforms, afloat forward staging base (AFSB), Special Forces, and SSGN operations. Additionally, he was the Deputy Test Director (Testing Analysis, & Evaluation) to the Joint Command and Control War on Terror Activities (JC2WTA) Joint Test and was CNA’s on-site scientific analyst to OPNAV N00X at the Pentagon. Prior to CNA, Dr. Freedman worked in academia and industry.
Mark E. Rosen, an international and national security lawyer, is senior vice president, general counsel, and corporate secretary at CNA. Rosen is a retired Navy Captain (JAGC) and served in various international law positions in the Pentagon including the ocean policy legal advisor to the Deputy Chief of Naval Operations for Plans, Policy, and Operations; political military planner, Strategic Plans and Policy Directorate (J-5), Joint Staff; and head of the International Programs Branch, Navy International Law Division, Washington, DC. Views expressed are his own.
[otw_shortcode_button href=”https://cimsec.org/buying-cimsec-war-bonds/18115″ size=”medium” icon_position=”right” shape=”round” color_class=”otw-blue”]Donate to CIMSEC![/otw_shortcode_button]
Notes:
[1] There is little legal distinction between CIVMARs or CONMARs according to the LOAC. However, CONMARs do have fewer legal protections than CIVMARs under most bilateral status of forces (SOFA) agreements that DoD has negotiated. Depending on where these vessels operate, the availability of SOFA protections, and the practical benefits of being able to issue a CIVMAR an official passport, should be given weight in deciding whether to make use of CONMAR crew.
[2] The definition of “belligerent” is often referred to as taking part in hostilities.
[3] The U.S. Navy’s claims sovereign immunity (freedom from involuntary boarding, inspection, arrest, or the imposition of coastal state environmental regulations) for all government owned and most leased vessels provided they are engaged in non-commercial service. While the term “naval auxiliary” is not defined in the Law of the Sea (LOS) Convention, the rights and entitlements of such vessels is established in years of state practice and learned texts like the San Remo Manual and the Naval War College’s Commander’s International Law Handbook.
“belligerent.”