Contractors or illegal combatants? The status of armed contractors in Iraq.

• Author: Ridlon, Daniel P.

1. INTRODUCTION II. WHAT LEGAL FRAMEWORK GOVERNS THE CONFLICT IN IRAQ? III. HISTORY OF PRIVATE MILITARY FIRMS IV. PMFS IN IRAQ V. PMFS UNDER THE GENEVA CONVENTIONS A. Article 4(A)(2) 1. Article 4(A)(2)(a)--That of Being Commanded by a Person Responsible for His Subordinate 2. Article 4(A)(2)(b)--That of Having a Fixed Distinctive Sign Recognizable at a Distance 3. Article 4(A)(2)(c)--That of Carrying Arms Openly 4. Article 4(A)(2)(d)--That of Conducting Their Operations in Accordance with the Laws and Customs of War 5. Summary--Article 4(4)(2) B. Article 4(A)(4) C. Article 47 1. Article 47(2)(a)--Is Specially Recruited Locally or Abroad in Order to Fight in an Armed Conflict 2. Article 47(2)(b)--He Does, in Fact, Take a Direct Part in the Hostilities 3. Article 47(2)(c)--He Is Motivated to Take Part in the Hostilities Essentially by the Desire for Private Gain and, in Fact, is Promised Material Compensation Substantially in Excess of That Promised or Paid to Combatants of Similar Ranks and Functions in the Armed Force 4. Article 47(2)(d)--He Is Neither a National of a Party to the Conflict Nor a Resident of a Territory Controlled by a Party to the Conflict 5. Article 47(2)(e)--He Is Not a Member of the Armed Forces of a Party to the Conflict; and 47(2)(f)--He Has Not Been Sent by a State Which is Not a Party to the Conflict on Official Duty as a Member of Its Armed Forces 6. Summary--Article 47(2) D. PMFs as Civilians 1. Direct Participation in Hostilities 2. Loss of Protection Before and After Engagements 3. Self-Defense 4. Summary--PMFs as Civilians E. Conclusion: PMFs under the Geneva Convention VI. CONCLUSION I. INTRODUCTION

   On the night of April 5, 2004, Shiite militiamen attacked the Coalition Provisional Authority's headquarters in the city of Najaf. In the firefight that ensued, the defenders of the CPA headquarters were twice resupplied by helicopter, once evacuating a wounded Marine. (1) The engagement lasted several hours, with thousands of rounds being expended by the defenders (2).

   While this might be considered a typical engagement for Coalition or Iraqi forces, many of the men defending the headquarters were neither. Instead, they were private security contractors from Blackwater Worldwide, a Virginia based private military firm (PMF). (3) Indeed, even the helicopters used to resupply the besieged contractors and to ferry a wounded Marine to safety belonged to Blackwater. After requesting assistance from U.S. forces, Blackwater was forced to use their own helicopters to support the defense. (4) Engagements such as this one are not atypical in the volatile security situation that is pervasive in Iraq. (5)

   Since the end of the Cold War, the United States has decreased the size of its armed forces significantly. From 1989 to 1999, the size of the active duty military force has been reduced from 2,174,200 to 1,385,700. (6) As a result of this reduction, the military has become increasingly reliant on private contractors to fulfill a number of tasks which had previously been carried out by members of the military. The steady increase of contractors can be seen through the ratio of contractors to military personnel in recent conflicts. In the first Gulf War, that ratio was one to thirty-six, (7) and, by the initial phases of the second Gulf War, it had decreased to one to ten. (8) While the ratio of contractors to soldiers during the combat phase of the second Gulf War represented a significant increase in the use of contractors, it pales in comparison to the massive reliance on contractors in the reconstruction period. As of September 2007, there were roughly 160,000 contractors supporting the 150,000 U.S. soldiers in Iraq. This means that the contractors supporting the mission actually outnumber the troops they are supporting. (9)

   Over the years, the dramatic increase in contractors playing key roles in military operations has led to greater concerns over the status of these contractors. As they became further integrated into operations that brought them closer and closer to the front lines, the likelihood that they would be considered combatants increased. At the same time, as contractors became increasingly involved in combat operations, the military attempted to maintain a sharp dividing line between contractors and military personnel. Prior to the second Gulf War, military regulations limited contractors from being armed except in extreme situations, and only then did regulations permit them to carry side-arms. (10) These restrictions were fueled by concerns that armed contractors could lose their non-combatant status and become targets of attack. (11)

   Despite the concerns about the status of contractors, the second Gulf War saw not only an expansion of the number of contractors per soldier, but also, for the first time, PMF personnel fought in tactical engagements alongside U.S. Soldiers. (12) Although exact figures are not available, it is estimated that there are currently between twenty thousand and thirty thousand armed PMF personnel operating in Iraq. (13) U.S. military figures reveal that the military alone has 6000 armed private security guards under contract. (14) PMF personnel in Iraq come from over 100 different firms operating in Iraq. (15) One firm, Global Risk Security, Ltd., has 1100 employees in Iraq, including 500 Nepalese Ghurkas and 500 Fijians. (16) When compared to contributions of nations participating in the Coalition during the invasion, this firm alone constitutes the sixth largest supplier of soldiers. (17)

   As the conflict in Iraq continues, the role PMFs play has only increased. In 2005, PMF personnel protected between 200 and 300 convoys per month. (18) By September 2007, this number had increased to 500 convoys per month. (19) This change in the role of contractors was accompanied by a revision in the military regulations that governed how contractors can be employed. Regulations that previously only permitted contractors to be armed for self-defense now allow for contractors to serve as armed guards. (20)

   The massive increase in the number of contractors and expansion of their role in the conflict has also led to a huge increase in costs. It is estimated that the costs of providing security will account for up to twenty five percent of the eighteen billion dollars earmarked for reconstruction of Iraq. (21) The State Department alone spends over one billion dollars a year hiring armed contractors to protect its diplomatic personnel in Iraq. (22) During congressional hearings in 2007, it was estimated that almost four billion dollars had already been paid to private security companies as part of the reconstruction effort. (23)

   The use of armed contractors has also led to concerns about regulating their behavior and how they use force. Pressure for regulation came not only from government officials and the media, but also from within the industry itself. (24) In reaction to these calls for increased regulation, the Coalition Provisional Authority, shortly before the handover of power, issued Memorandum 17 which set rules for the use of force by contractors and which called for the registration of all armed contractors. (25) These initial efforts at constraining PMFs were largely ineffectual and, in the overall chaos of Iraq, the conduct of PMF personnel remained a less than prominent issue. That all changed on September 16, 2007, when several armed Blackwater contractors defending a State Department convoy opened fire in a crowded intersection in Baghdad, killing 17 people and wounding 24 others. (26) Although the details of the shooting remain disputed, the incident catapulted PMFs and their practices into prominence in the media. This increased public awareness was accompanied by renewed calls to increase the regulation of PMF practices, including some calls that PMF personnel be brought under U.S. civilian criminal jurisdiction. (27)

   While a great deal of attention has been given to possible legal mechanisms for regulating PMFs, the question of the legal status of armed contractors in Iraq has received far less attention. What is the status of armed contractors under the Geneva Conventions? Are they unlawful combatants, like al-Qaeda, or are they civilians who are acting in self-defense? This article explores these questions in an attempt to determine the status of armed PMF personnel under the Geneva Conventions and the laws of war. It begins by examining what legal framework applies to the current conflict and then, after briefly examining the history of PMFs, considers what their legal status is under international humanitarian law.

2. WHAT LEGAL FRAMEWORK GOVERNS THE CONFLICT IN IRAQ?

   The first issue that must be addressed in any examination of the legal status of PMFs operating in Iraq is: What legal framework applies to the conflict in Iraq? This determination will depend largely on whether the conflict in Iraq is considered an international armed conflict between two nations who are parties to the Geneva Conventions, or an internal armed conflict. If the conflict is considered an international armed conflict, then the entire elaborate system of International Humanitarian Law embodied in the Geneva Conventions and other relevant treaties apply to the conflict. If, on the other hand, the conflict is considered an internal armed conflict, the conflict is governed by a much less elaborate legal framework.

   Article 2 of the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention) defines when the convention applies to an armed conflict. It states that, "the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." (28) Thus, for the conventions to apply a conflict must meet two criteria. First, it must be an armed conflict. Secondly, the conflict must be between...