The following article originally appeared in the Marine Corps Gazette and is republished with permission. Read it in its original form here.

By Capt. Walker D. Mills, USMC

In recent years, the Marine Corps has become obsessed with naval integration, and that’s a good thing. Former Commandant Gen. Robert B. Neller called for greater efforts at naval integration, calling it “Green in support of Blue.”¹ In his Commandant’s Planning Guidance, Gen. David Berger echoed that call and labeled naval integration “an imperative.”² The new Chief of Naval Operations, Adm. Michael Gilday, in his confirmation hearing, said that “there is no daylight between us,” referring to himself and Commandant Berger in response to a question about the Marines’ push for closer integration with the Navy. So, with all the calls for integration, where is the Naval Expeditionary Combat Command (NECC)? After all, the Marine Corps itself is a naval expeditionary force according to the Commandant.

You might be asking, “What is the NECC?,” precisely because it is missing from most Marine Corps commentary and thinking. If you were to Google it, you would find it below Northern Essex Community College in the search results. Despite the relative lack of renown, the NECC is and will be essential for emerging and future Marine Corps concepts like Expeditionary Advanced Base Operations (EABO). NECC, established in 2006, is the type command on which the Navy puts the responsibilities to man, train, and equip most of its functions that are not performed on ships, submarines, or airplanes. It is operationally controlled in combined task forces that consolidate the Navy expeditionary combat force (NECF) under a singular command in each theater.

These forces include the Seabees: naval construction units that are similar to but distinct from the Marine Corps’ engineer community and have more capability. The Seabees are the go-to naval unit for building and maintaining runway and port infrastructure, hardening bases, and constructing expeditionary facilities.

The Navy Expeditionary Logistics Support Group is also part of the NECC. Responsible for “providing expeditionary logistics capabilities for the Navy, primarily within the maritime domain of the littorals,” it is a key part of any maritime fight that needs fuel, ordnance, or cargo sustainment.³ It is also responsible for expeditionary communications.

The NECC also contains the Coastal Riverine Force, which is responsible for port and harbor security—defending high-value assets like amphibs and aircraft carriers during strait transits and maritime security. In addition, the NECC has cognizance over explosive ordnance disposal units, which play a critical role in both mine countermeasures and dive and salvage operations. They are optimized for inshore and offshore littoral operations—operations in the very zone that the Marine Corps has identified as an essential part of its future. The NECC is rounded out by the Navy Expeditionary Intelligence Command and training and support elements. All told, it includes some 20,000 personnel, many of whom are currently deployed supporting operations around the globe.

Despite its capability, the NECC has largely been missing from commentary and discussion in and about the Marine Corps. The NECC has not been the focus of a feature article in Proceedings for years and perhaps ever in the Marine Corps Gazette. Most Marines do not know what it is or, more importantly, how it could support them. It has also been missing from published concepts and comments by senior leaders. It was defined in the appendix of “Littoral Operations in a Contested Environment” but never used, and in the 32 pages of the 2016 Marine Corps Operating Concept, it was mentioned once as part of a simple bullet without explanation: “Leverage the NECC.” Gen. Neller’s guidance was a short fragmentary order, but it also did not mention the NECC. Gen. Berger’s planning guidance, while never specifically using the terms NECC or NECF, openly asks the question of:

“whether it is prudent to absorb [some of the NECF] functions, forces, and capabilities to create a single naval expeditionary force whereby the Commandant could better ensure their readiness and resourcing.”

This question about potential contributions of the NECC to EABO should be front and center; the ignorance of what the NECC can do is a loss for the Marine Corps.

In the 2017 Littoral Operations in a Contested Environment concept, the Marine Corps identifies a list of “proposed capabilities.” Many of these capabilities are resident within the NECC, even though the command itself is not mentioned in the document, such as the abilities to:

• “Establish expeditionary advance bases.”
• “Conduct littoral mine detection, avoidance, and clearance.”
• “Sustain distributed naval forces with precision munitions and sufficient fuel in high-intensity combat.”
• “Rapidly establish mobile, clandestine expeditionary logistics bases to provide sustainment to afloat and expeditionary operating forces.”
• “Conduct casualty and medical treatment and evacuation.

According to the Navy and Marine Corps’ new concept, EABO will involve employing “forward arming and refueling points (FARPs) and other expedient expeditionary operating sites for aircraft such as the F-35, critical munitions reloading teams for ships and submarines, or … expeditionary basing for surface screening/scouting platforms” in “austere, temporary locations.”⁴ In brief, that is a lot of what the NECC does. Seabees can build and repair the runways and facilities at FARPs and build expeditionary basing. Naval Expeditionary Logistics Groups transport (and are developing the internal capability to reload) munitions on planes, ships, mobile land-based launchers, and submarines. But to leverage the capabilities of the NECC, Marines first need to understand it and account for it in new plans and concepts.

There has been some progress. Marine engineers and Seabees have been working together to repair and refurbish the “Airport in the Sky” on Catalina Island as part of the DOD’s Innovative Readiness Training Program—a task not unlike what they might be expected to perform on other islands in the Pacific in wartime.⁵ More recently, exercise PACIFIC BLITZ, which was held across Southern California, included multiple units from the NECC and I MEF, though not necessarily integrated.⁶ The East Coast planning efforts for the upcoming Large-Scale Exercise 2020 features an “expeditionary syndicate” led by Expeditionary Strike Group 2, II MEF, and NECC co-leads.

During my own time in the Corps, I have spent significantly more time training with partner militaries than I have with the sailors or soldiers in our own military. I cannot remember a training event where I ever worked with sailors from the NECC. This results in myopia across the force at a time when naval integration is becoming increasingly central to our core responsibilities and future vision. Our lack of engagement with the NECC might be the worst example of this myopia, but it extends to the other services as well. Until I attended the Defense Language Institute on an Army installation, I had never met an officer in the Army or Air Force in a professional setting. Sometimes I wonder if there are Marines who think we can defend the Pacific by ourselves, ignoring that the Army alone has more than 80,000 soldiers based in the Pacific and continues to expand their roles.⁷ I am not arguing that Marine Corps leadership is unaware of the NECC or our sister services, but it is important that the whole force, from top to bottom, has a strong understanding of the NECC’s role and capabilities. The NECC is perhaps the organization that the Marines will work closest with when executing EABO; the NECC will help enable EABO. It is also not the only organization Marines should expect to fight beside. The Army possesses over 100 seagoing vessels that will likely be used for intratheater transport in the littorals and be key to any future Pacific campaign because the Marine Corps and the Navy do not have the same capability. New Army multi-domain task forces will also be present in theater, and the Air Force will likely deploy small units built around its “Rapid Raptor” concept. Marines need to understand these capabilities and train with them in a joint way.

In his paper, “On Littoral Warfare,” Naval War College professor Milan Vego writes that “littoral warfare requires the closest cooperation among the services, or ‘jointness.’”⁸ That cooperation is rooted in understanding and fostered by joint training. If Marines do not understand or discuss the NECC, it is because they have not been adequately exposed to it. The NECC, by name and definition, is, like the Marine Corps, a naval expeditionary force. The command has the capability to support EABO in everything from running decoy FARPs to maintaining and building fuel sites and repairing port facilities. In order to validate and implement future and emerging concepts, the Corps needs to seek out more opportunities to expose itself to and train with specific partner forces and units. The Marine Corps must increasingly seek joint training opportunities with the units in other services it is most likely to work with and must work to highlight that training and increase Marines’ exposure to the NECC.

Walker D. Mills is a Marine infantry officer currently serving as an exchange officer in Cartagena, Colombia. He has previously authored commentary for CIMSEC, the Marine Corps Gazette, Proceedings, West Point’s Modern War Institute and Defense News.

Notes

1. U.S. Congress, Statement of General Robert B. Neller, Commandant of the Marine Corps, before the House Appropriations Committee, Subcommittee on Defense, Concerning the Posture of the United States Marine Corps on April 30, 2019, (Washington, DC: April 2019).

2. Headquarters Marine Corps, Commandant’s Planning Guidance: 38th Commandant of the Marine Corps, (Washington, DC: July 2019).

3. Naval Expeditionary Logistics Support Group, (U.S. Navy Expeditionary Combat Command), available at https://www.public.navy.mil.

4. Headquarters Marine Corps, “EABO,” available at https://www.candp.marines.mil.

5. Luis Sahagun, “Marines Invade Catalina Island to Fix Crumbling Airstrip at Airport in the Sky,” LA Times, (Los Angeles, CA: January 2019).

6. Gidget Fuentes, “Pacific Blitz Tests How Navy, Marines Could Fight the Next Island Campaign,” USNI News, (Annapolis, MD: March 2019).

7. Jen Judson, “Pacific Pathways in 2020 Lead to Oceania,” Defense News, (Washington, DC: October 2019).

8. Milan Vego, “On Littoral Warfare,” Naval War College Review, (Newport, RI: Spring 2015).

Featured Image: 180419-N-NT795-642 SAN DIEGO (April 19, 2018) Electronic Technician 3rd Class Juan Britomora, assigned to Coastal Riverine Squadron (CRS) manned the .50-caliber machine gun aboard MKVI patrol boat during unit level training conducted by Coastal Riverine Group (CRG) 1 Training and Evaluation Unit. (U.S. Navy photo by Chief Boatswain’s Mate Nelson Doromal Jr/Released)

By Captain James L. McClane, U.S. Navy (ret.) and  Captain Kevin Eyer, U.S. Navy (ret.)

Introduction

It is entirely possible that the enormous superstructure of the Navy is actually working against maintaining an effective Fleet. We seem to be mired in a time in which counterproductive institutional incentives and dynamics have developed naturally in the absence of an existential threat to focus our efforts, such as a great power competitor. One of these unhelpful dynamics has been the explosion in the numbers of flag officers.

A cursory examination of the historical record makes clear that the number of flag officers serving in the United States Navy operates independently from either the number of ships in service or the number of personnel in uniform. Today, the number of flag officers seems to be more a political concoction or of runaway administrative outgrowth, but has little to do with the sea or the ability to sustain combat operations on it.

In the U.S. Navy, with the exception of the Civil War, there were no flag officers from the American Revolution until the Spanish American War. There were ceremonial commodores when operational protocol called for them, but otherwise no flags. However, the record from the Naval Historical Center beginning with the Spanish American War going to the modern naval era is instructive:

The line was crossed in 1997, at which point the number of flag officers equaled the number of active ships. Today, there is about 32 times the number of flag officers per active ship as there were during WWII, when captains were entrusted to run the Navy with paper, pencil, dial telephones, voice radio, flag hoists, flashing lights, and seamanship. Using personnel figures reveals the flag-to-Sailor ratio increased by a factor of 100 times. What caused these drastic increases?

Explanations and Justifications

There are explanations for this growth. First, there is an institutional “law” which affects the matter. In 1955, the Royal Commission on the Civil Service published a report which explained how the previously inexplicable growth noted across the British bureaucracy was inevitable. The report was based upon what soon became known as “Parkinson’s Law.” According to The Economist, Nov 19, 1955: “The fact is that the number of the (senior) officials and the quantity of the work to be done are not related to each other at all. The rise in the total of those employed is governed by Parkinson’s Law, and would be much the same whether the volume of the work were to increase, diminish or even disappear…Omitting technicalities (which are numerous) we may distinguish, at the outset, two motive forces. They can be represented for the present purpose by two almost axiomatic statements, thus: Factor I – an official wants to multiply subordinates, not rivals; and Factor II – officials make work for each other.”  

The study went on to demonstrate Parkinson’s Law, using, in one case, the explosion of Royal Navy admirals, between 1914 and 1928, a period of time in which the number of ships fell precipitously, while a sharp rise in admiralty officials (almost 80 percent) was noted, creating what one called “a magnificent Navy on land.” 

There is even a formula:  x = 2k^m + p over n, where k is the number of staff seeking promotion though the appointment of subordinates; p represents the difference between the ages of appointment and retirement; m is the number of man-hours devoted to answering minutes within the department; and n is the number of effective units being administered. Then x will be the number of new staff required each year.

This perfect self-licking ice cream cone was replicated a century later in the U.S.. In 2010, then-Secretary of Defense Robert Gates called for the elimination of more than 100 general and flag officer positions as part of his so-called, “Efficiency Initiatives.” Despite a clear plan and subsequent Pentagon assurances that cuts were to be made, the top ranks remain largely intact to this day, and the small number of reductions occurred almost exclusively at the one-star level.

Add to this the fact that a May 2013 GAO analysis found that the number of support staff at DoD’s Combatant Command headquarters grew “by about 50 percent from fiscal years 2001 through 2012.” This created added distance between commanders and warfighters. “In some cases the gap between me and an action officer may be as high as 30 layers,” Gates once stated, resulting in a “bureaucracy which has the fine motor skills of a dinosaur.”

Intransigent, perhaps, but the services have their own explanations for the necessity of ever-increasing numbers of general and flag officers, as well as Senior Executive Service (SES) personnel. According to a February 2016 CRS report entitled, “General and Flag Officers in the U.S. Armed Forces:  Background and Considerations,” one frequently cited cause of the increase in senior personnel has been the increase in “joint” requirements that followed enactment of the Goldwater-Nichols Act (GNA) in 1986. In other words, we’re hamstrung by a law not of our own making.

Another rationale used to explain the increase has been an increased focus on forging coalitions with other nations. This has, in turn, generated a demand for senior military leaders to conduct coordinated planning, training, and operations with their peers from foreign nations. The proofs of this rational seem to be missing, as the military worked with large coalitions in the past – in World War II, for example – without a glut of senior officers.

There are also inescapable issues connected to the organizational structure of the military, which includes certain positions regardless of overall size of the military. There will be a Chief of Naval Operations regardless of force size. A similar case can be made for many senior persons who serve on the Joint Staff, the Service Staffs, the Combatant Commands, and certain defense agencies. According to the CRS, “Given the organizational structure of the Armed Forces—some of which is required by law—the amount of management ‘overhead’ does not necessarily change in direct proportion to the size of the force.”

However, according to the CRS:

“Prior to the creation of DOD by the National Security Act of 1947, military services were separate entities with distinct missions, frequently in competition with each other for resources. Although the establishment of DOD brought services together in a single organization, those services continued to organize, plan, and operate relatively independently, and they maintained separate, direct chains of command over their respective parts of the operational force. In turn, the Chairman of the Joint Chiefs of Staff (CJCS) was a spokesperson for the Joint Chiefs, but exercised little authority over his fellow Joint Chiefs. In practice, this meant that services trained, planned, and executed operations separately from each other, or at best side by side. Prioritization, including associated resource decision-making, took place primarily within the Military services, rather than across DOD as a whole; and there was little if any room for DOD to benefit from economies of scale.”

What Goes Up and What Goes Down

While the military, writ large, is clearly more sophisticated than it was in the past, and while political, acquisition, and joint/combined organizations impose a greater demand than ever before for senior representation, it is still hard to understand how the number of flag officers and senior executives are sustained in the Navy with intractable fervor even as the active ship list has declined by about 70 percent.

With specific regard to the Navy, what do the numbers suggest? Why is there no apparent flag statistical correlation with active ships or Sailors? Should we understand this disproportionate growth in flag officers to be worrisome or simply a necessary development? At least in the Surface Force, the growth of flag/SES numbers has been matched by a demonstrable and steady decline in readiness. This decline seems to have been relatively unnoticed and unremarked upon by leaders until very recently when many appeared to be taken by surprise that ships were poorly maintained, trained, and sailed without required certifications.

If, as has been claimed, this number is the absolute necessity in order to keep the Navy on a level playing field with the other services – for both dollars and influence – then can’t these senior persons also do a more meticulous job of running things inside the Navy? 

It seems that “The Navy” has less and less to do with the active fleet and more to do with something else. A part of the problem of ineffectual leadership may lie in what criteria are being used for flag selection. Increasingly, and over many years, flag activities have less to do with actual fleet operations and more to do with extra-Navy relationships. The entering argument for flag-selection has moved (at least in the case of surface warfare) away from, “sustained, superior performance at sea” and toward the question of, “what can you do for us in Washington if we make you an admiral?”

It is commonly understood that, regardless of record, an officer without substantial experience in Washington is unlikely to move beyond a first command. Those officers who stay with the fleet, without also keeping a weather-eye on good Washington tours, and an associated accretion of powerful advocates, end up being viewed by boards as insufficiently broad, which is tantamount to non-selection. Whether they are the sorts of persons that are wanted to fight the nation’s battles at sea or not is hardly of interest. Instead, what is of interest is: Can they can influence a budget? Plan future manning? Are they acquainted with the interests of industry and congress? Are they thoroughly familiar with the employment of power and influence beyond the Navy’s lifelines? Are they polished? Do they fully support Navy policy, regardless? But whether they are skilled in ship maintenance, anti-submarine warfare, or operational-level warfighting and tactics is of little (or at best secondary) interest despite how vital these grassroots-level skills are toward crafting viable policy. Instead what we have built is a bloated generation of leaders who are better at fighting bureaucracies than wars.

Solutions and Ideas

Flag numbers cannot be easily drawn down once established. Nevertheless, a new path forward must be described. That path includes cultural changes, which can only be effected from the top-down.

First, board precepts should be altered to reward at least a few of those officers who are more regarded for their operational/waterfront excellence than their experiences in front offices. More stars need to go to officers who are intimately connected to the fleet and with developing warfighting tactics, rather than with the Washington milieu. Rather than asking simply, “What can he or she do for us in Washington,” perhaps another important question should be, “Who do we want to fight our wars?”   

Second, hard questions should be asked with regard to whom, exactly, we are putting in charge of the actual procurement and maintenance of ships. Engineering Duty Officers (EDs) and Acquisition Professionals (APs) are the unquestioned flags of who actually runs the bottom-line acquisition of ships, as well as their maintenance. It seems odd that these are also officers that have had few command-at-sea (EDs) or a major command-at-sea tours (APs).

Third, meaningful command opportunities for captains, beyond major command, should be established. It makes little sense to give our most experienced surface force captains the choice of either making flag, going to an obscure, heavy-lifting staff job, or get out. As it is, most of the few “sequential major commands” are either shore- or training-based, and kept firmly under the thumb of closely connected flags. Our real ship experts leave, almost to a man, if they don’t make flag, and those who do stay are generally only doing so to prepare for their next career. On the other hand, many would stay if they were offered positions commensurate with their background and experience, positions in which they could bring their expertise to bear on cracking hard problems on warfighting tactics or waterfront operations, and not carrying out more simple staff functions for a bureaucracy that has outgrown its administrative usefulness.

Fourth, cut the number of SES positions. Certainly, one may ask what these SES personnel can provide that uniformed personnel cannot. Continuity? Stability? Unfortunately, it seems as if these terms have become euphemisms for the sort of bureaucratic paralysis and risk aversion, in the name of self-interest, which increasingly plagues the services but especially the SES. Consider replacing these persons with long-serving captains, post-major command, and allow them to remain in place for multiple tours (as opposed to indefinitely as is the case with SESs) if necessary.

Finally, the real bureaucracy – the self-licking ice cream cone  –  needs to be cut. Not just flag officers and senior executives, but their counterparts across the services should be a primary target for a congressionally-mandated mission/task review, with resultant manpower and infrastructure reductions, as well as an across-the-board reduction in flag and SES-level requirements. There are several approaches available. First, former Secretary Gates’ Efficiency Initiatives should be fully implemented. Second, caps on the total number of general and flag officers, instituted by President Bush in 2001, should be reinstated and tied to the size of the force.

While there may be certain institutional and bureaucratic reasons for maintaining the number of senior personnel in the service, the evidence seems to suggest that these leaders are increasingly remote from, and unable to address the issues of, the fleet – and the same is probably true in the other services.

Captain James L. McClane comes from a Navy family. His service afloat since 1964 includes DD, DDGs, CGs, and with Aegis destroyer and cruiser commands. He was the commissioning combat systems officer of USS Ticonderoga (CG 47). His service ashore includes sequential major commands of Afloat Training Group Atlantic.

Captain Kevin Eyer served in seven cruisers, commanding three Aegis cruisers: USS Thomas S. Gates (CG-51), Shiloh (CG-67), and Chancellorsville (CG-62).

Featured Image: YOKOSUKA, Japan (Sept. 7, 2011) – From left, Adm. Patrick M. Walsh, Vice Adm. Scott R. Van Buskirk and Vice Adm. Scott H. Swift bow their heads during the benediction at the U.S. 7th Fleet change of command ceremony held on the flight deck aboard the command ship USS Blue Ridge (LCC 19). (U.S. Navy photo by Mass Communication Specialist 2nd Class Kenneth R. Hendrix)

By David T. Lee

Introduction

It is an oft-repeated axiom of international law that vessels which serve as auxiliaries to a state’s armed forces may not lawfully commit a belligerent act in an international armed conflict. The presence of civilian personnel aboard many auxiliaries (including those employed by the U.S. Navy) raise law of war rules governing the use of civilian personnel in armed conflict. But why should ship type – particularly auxiliaries – be a factor in assessing the lawfulness of committing belligerent acts? Instead, it should be considered they be able to do so in the same manner as warships.

Warship or Auxiliary?

The similarities between warships and naval auxiliaries are striking. Naval auxiliaries are vessels under exclusive military control for non-commercial service. Both warships and naval auxiliaries are led by a person subject to the orders or direction of a military chain of command, to potentially include a geographic combatant commander, Navy component commander, or a task force commander. Even with recognizing the different statuses of individuals serving aboard naval auxiliaries, personnel aboard both types of vessels typically may incur some degree of adverse administrative, civil, and disciplinary measures from the military for any failure to follow those orders. While there are nuances in how governments may acquire vessels for the exclusive use of its military forces, some of which may include time-chartered or voyage-chartered vessels, all naval auxiliaries share a warship’s right to exercise sovereign immunity because both conduct only non-commercial government service. Finally, both are lawful military targets in international and non-international armed conflicts, regardless of whether the ship is manned by uniformed military personnel or civilians. Yet despite being subject to hostile attacks, naval auxiliaries may only lawfully act in self-defense.

The limitation imposed on naval auxiliaries makes little sense and has important operational implications. It harkens to an earlier era seeking to protect unarmed mariners. But with the targeting leash loosened, the desire or need to impose legal restrictions on ships based on how they contribute to the fight is unclear. Until the rule changes, U.S. Navy auxiliaries have been intentionally designed and utilized to perform only supporting tasks which fall well within current legal norms. These include providing logistical support, or serving as air or seaborne launch pads to transport troops and ammunition. But there is an increasing desire to expand the functions which auxiliaries can execute, including electronic attack, intelligence collection, command and control, and mine countermeasures. To the extent these and other missions could be construed as belligerent acts, the current rule straitjackets auxiliaries in armed conflict. As the potential list of activities performed by auxiliaries expands, the legal restriction against belligerent acts by auxiliaries has imposed an unnecessary hurdle in operational planning and execution.

The presence of civilians aboard many naval auxiliaries should not impose a limitation on belligerent actions based on ship type. Recognizing that noncombatant civilians may not directly participate in belligerent acts, the possibility for the vessel to exercise combatant functions remains undiminished so long as there are personnel aboard who may lawfully carry them out. The domestic legal hurdles in activating or deputizing civilians to serve in a combatant capacity does not eviscerate the underlying principle authorizing naval auxiliaries to conduct belligerent acts. An auxiliary ship manned exclusively by uniformed military personnel (as is the norm for many countries such as Japan) certainly should raise no concerns warranting imposition of any legal limitations about whether it commits belligerent acts or not. Accordingly, even if there may be legal restrictions on who commits such acts, there should be none based on the class of ship or the functions it performs.

Origins of the Prohibition

The current prohibition against belligerent acts by auxiliaries may originate in large part as a legacy of pre-World War I conventions seeking to protect civilian merchant ships from unnecessary harm. Consistent with notions of fairness among the advanced powers at the time, the 1909 London Declaration Concerning the Laws of Naval War imposed a requirement on warships to distinguish between the enemy’s warships and their merchant ships. If a warship encountered an enemy merchant ship, they were generally not authorized to immediately attack and destroy it even if they had war-sustaining equipment and supplies aboard. Instead, warships were required to first search the merchant ship and take it to a prize court if contraband was found. They could destroy it only in exigent circumstances after safeguarding its crew.¹ The presumption was that even public vessels (but not warships) under the orders of an enemy government were manned by noncombatant civilians unable to inflict harm to any warship. This guidance was reaffirmed by the 1936 London Treaty, and the U.S. considers these procedures legally valid even today. In exchange for these protections, merchant ships were reasonably prohibited from engaging in belligerent acts, but could act in self-defense.²

Yet there was strong recognition that at some point, any vessel controlled by a belligerent government should be treated akin to a warship. During the negotiation of the 1907 Hague Convention Relating to the Conversion of Merchant Ships into Warships, the British delegation suggested the establishment of a special category of warships called ‘auxiliary vessels’ covering neutral or enemy merchant ships which directly aid the enemy’s military forces.³ Although the proposal was subsequently withdrawn, the parties did create a construct allowing the targeting of enemy merchant ships converted into warships. Notably, the conversion process did not require any physical alterations to the merchant vessel which would give it the ability to fight with traditional warships; it only required the ship to be commanded by individuals commissioned by their government, subject to military discipline, and under government control – administrative changes allowing both the ship and its crew to lawfully fight as combatants.⁴ Even though it did not directly authorize auxiliaries to conduct belligerent acts, the convention established a path allowing merchant ships and other support vessels to do so.

Disconnect Between Targeting and Conduct

Problems implementing the conversion process in World War I led to a relaxation of the targeting rules against belligerent merchant ships while keeping in place the restrictions against belligerent acts. States such as the U.S. continued to demand an evaluation of armament to determine if a merchant ship was actually a targetable warship. But after this evaluation process exposed German submarines to harm, all merchant ships became eligible targets, and the protections bestowed by pre-war conventions were rendered useless. Any ship conducting war-sustaining activities was targeted and sunk by belligerents during the war, regardless of whether it was legally characterized as a warship or not. Yet even armed merchant ships ordered by a belligerent government to attack enemy submarines (i.e. ships that had arguably been converted into warships) did so at considerable legal risk. One British merchant ship captain trying to ram a German submarine was subsequently executed by the Germans as an illegal combatant.⁵ Because he acted prior to the issuance by the British Admiralty ordering all British-flagged merchant ship masters to take such offensive measures, it is unclear whether the German court would have found him guilty subsequent to the Admiralty’s orders.

The Shipping Act of 1916 strengthened the U.S. military’s authority to directly control the U.S.-flagged merchant marine fleet in wartime. The law authorized placement of its merchant marine under direct U.S. government control for use as an auxiliary force in support of military wartime needs. The law made a clear distinction between the Naval Reserve, which included civilian ships available for requisitioning by the government, and naval auxiliaries, which were ships used by the U.S. government for its military needs in support of the combatant forces, and manned by a crew subject to its direction. When the law was invoked after the U.S. entered the war in 1917, some vessels reported to a civilian Shipping Board, and others came under direct Navy or War Department control. In practice, ships under military control were armed only for defensive purposes, and unlike their British counterparts were never directed to attack the enemy. Nonetheless, for purposes of the 1907 Hague Convention, they were arguably converted into warships because the government had direct control over the actions of a crew subject to military discipline. Otherwise, they were essentially auxiliaries which lost the targeting protections afforded under the 1909 London Declaration without an accompanying legal right to engage in belligerent acts.

World War II strengthened in practice the legal right of armed merchant ships to engage in belligerent acts because they were so closely integrated with the combatant fleets. Both sides treated them in the same manner as warships, both in terms of targeting them, as well as in the scope of belligerent activity they performed. The Allies struggled to prosecute German Grand Admiral Karl Doenitz for violating a provision of the London Naval Treaty of 1930 affirming the requirement to avoid destroying merchant ships unless necessary, and only after safeguarding the lives of merchant ship crews prior to destruction. Doenitz was ultimately acquitted of the charge in large part because the Allies also practiced unrestricted submarine warfare, targeting enemy merchant ships and merchant mariners because they were deemed combatants integrated with fighting forces.⁶

Establishing a New Rule

Even as World War II saw the de facto incorporation of each side’s merchant marine into their armed forces, the U.S. continues to restrict auxiliaries from committing belligerent acts based on its interpretations of the law of naval warfare, while also recognizing them as lawful targets in international armed conflict. It carefully scrutinizes the intended mission of each ship to determine if it needs to be ready to commit belligerent acts. If it does, it is commissioned as a warship (i.e. with a “USS” designation) rather than brought into service as an auxiliary (i.e. with a “USNS” designation). Any changes in mission may require adjustments in the ship’s status. Although seemingly just a paper drill, the reality is that it significantly impacts manning, maintenance, planning, and operations, and reduces the flexibility of the operational commander in executing desired missions.

There should be no prohibition against auxiliaries committing belligerent acts. They are fully integrated into naval forces for the sole purpose of prosecuting the conflict onto the enemy, and as such are lawful targets. Indeed, the enemy will evaluate the ship’s targetability based on the platform rather than the personnel aboard, whether military or civilian. Potential law of war restrictions on embarked civilian personnel to exercise combatant functions are only administrative impediments that can be adjusted consistent with domestic law procedures, and should have no bearing on whether the execution of belligerent acts should be limited based on ship type. When subject to the direction of the armed forces on non-commercial service, naval auxiliaries are not innocent merchant ships posing no threat. These vessels execute a vital military mission and as such are lawful targets as much as any traditional warship. To the extent naval auxiliaries have the capacity to commit belligerent acts, it should be lawful for them to do so.

Commander David Lee is a military professor at the Stockton Center for the Study of International Law, located at the U.S. Naval War College in Newport, RI. He most recently spent five years practicing international and operational law in support of U.S. Naval Forces Europe/Africa and U.S. SIXTH Fleet in Naples, Italy.

References

1. 1909 Declaration Concerning the Laws of Naval War, Chapter IV.

2. 1913 Manual of the Laws of Naval War, Article 12.

3. Proceedings of the Hague Peace Conferences, Vol. I, Oxford University Press (New York: 1920), 235.

4. 1907 Hague Convention Relating to the Conversion of Merchant Ships into Warships, Articles 2-7.

5. Charles Dana Gibson, Merchantman? Or Ship of War, Ensign Press (Camden, ME:  1986) 46.

6. Id., 119-121.

Featured Image: USNS Carson City (T-EPF- 7) entering the Black Sea on Aug. 15, 2018. Photo by Yörük Işık, @YorukIsik.