Private security contractors in Iraq violate laws of war.

AuthorMcCormack, Shawn
  1. INTRODUCTION

    When private security contractors killed eleven Iraqis in a shootout in Baghdad, the Iraqi Prime Minister called it criminal. (1) Security contractors called it "by doctrine," meaning they returned fire in order to protect their lives and their client. (2) A United Nations group called them mercenaries. (3) In any case, the murky legal status of private military contractors had legal commentators calling them something else: immune from prosecution. (4)

    This Note argues that private military contractors can be held liable for their actions under the jus cogens of unlawful civilian combatants. (5) Part II places private military contractors in their proper historical context, neither soldiers nor civilians, nor technically mercenaries. (6) In Part III, this Note discusses the applicable laws of armed conflict that prevent civilians from engaging in hostilities. (7) Part IV describes the Iraq war, and the unprecedented use of private contractors. (8) Finally, Part V provides an analysis of how international law could be applied to private military contractors. (9)

  2. HISTORY

    1. An Abridged History of Fighting for Money

      The mercenary trade dates back thousands of years. (10) Examining the history of the mercenary trade is helpful to understanding the pedigree of the modern private military firm (PMF). (11) In common parlance, mercenaries are soldiers who fight for money rather than loyalty, and do so in the service of a foreign state. (12)

      1. Foreign Soldiers, State Militaries

        When one state rents its armies to another, the embattled state gets an affordable fighting force while the providing state is relieved of the cost of maintaining an army, and they receive money for the exchange. (13) King George sent 30,000 "Hessian" soldiers to America to augment his national troops trying to put down the rebellion in the American colonies. (14) While there is no question that the American revolutionaries, who would meet the Hessian soldiers on the battlefield, considered them "mercenaries," they would not be considered such today. (15) The soldiers themselves were serving in the proper army of their respective states, and that army was officially deployed to America by its sovereign. (16)

      2. Soldiers of Fortune

        Today, bona fide "soldiers of fortune" are far more rare than rumor and myth suggest. (17) Unaffiliated individuals fighting other people's wars for profit were only common during the "decolonization period" in Africa. (18) Colonial governments and independence movements have both hired mercenaries. (19) Today, individual mercenaries have not totally disappeared, but their effect is minimal. (20) For one, there are tactical limitations inherent in a mercenary force. (21) Also, because mercenaries were often on the "wrong" side of African independence, they were a political or public relations liability. (22) The shadow cast by the decolonization mercenary cannot be ignored. (23) The current international laws regarding mercenaries were drafted with these men in mind. (24)

      3. Civilian Contractors

        Using civilians to aid the military is not a new concept. (25) During the Civil War, President Lincoln hired civilian balloonists to gather battlefield intelligence from above. (26) For this service, they received the staggering sum of ten dollars a day. (27) This is one of the first examples of civilian contractors engaging in combat activities. (28) The United States employed balloons in the Spanish-American War, but by that point the Army had mastered the new technology and provided its own operators. (29)

        A similar pattern emerged with the advent of the airplane. (30) From 1911 until 1916, American civilians flew military missions for the Mexican Federals against the rebels, and for the rebels against the Federals. (31) This stopped when Pancho Villa's attack on New Mexico brought the United States into the conflict, and the U.S. Army brought its own planes, piloted by Army officers. (32) The U.S. Air Service was created in 1918, only seven years after a civilian flew the world's first combat airplane mission. (33) Today, the military outsources many tasks to contractors that similarly deal with operating and maintaining new technologies. (34)

    2. Private Military Firms

      On the subject of modern PMFs, there are two views pulling in opposite directions. (35) Some see the PMF as a repackaged version of the old mercenaries, while others see the PMF as an entirely new product. (36) Regardless of their pedigree, existing mercenary laws written during the Cold War did not anticipate the modern PMF. (37)

      The end of the Cold War forced states to reorganize their security infrastructure, to rethink the role of government in national security, and to transform basic concepts underlying the private and public sphere. (38) In the seminal work on the subject, Brookings scholar, P.W. Singer, describes the confluence of factors that gave rise to the modern PMF. (39)

    3. Treatment of Mercenaries in International Law

      1. Jus in Bello: Hague Law and Geneva Law

        The Hague Conventions of 1907 are considered a codification of the customary international laws of jus in bello. (40) The Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V) forbids a neutral power from sending mercenaries to help a belligerent. (41) Hague V does not, however, engage the neutral state's responsibility for citizens, of their own volition, assisting a belligerent power as a mercenary. (42)

        Under the Hague Conventions, mercenaries are probably entitled to combatant status because individual mercenaries, and mercenarism generally, are not illegal under the Hague rules of war. (43) Under Hague law, mercenaries had the right to engage in hostilities provided they follow the rules laid out in article 1 of The Regulations Concerning the Laws and Customs of War on Land (Hague II Annex). (44)

        The 1949 Geneva Conventions do not discuss the combatant status of mercenaries. (45) Debate exists as to whether the drafters intended for mercenaries to be designated as lawful or unlawful combatants. (46) Regardless of intent, under the 1949 Conventions, mercenaries may lawfully engage in hostilities and are entitled to the same protections as combatants. (47)

      2. The Decolonization Period

        In the wake of the decolonization movement in Africa, the United Nations passed a number of resolutions condemning mercenaries. (48) In 1968, the United Nations General Assembly passed Resolution 2465 declaring it a crime to be a mercenary and to hire mercenaries, but only insofar as these mercenaries fight against a national liberation movement. (49) In 1973, the General Assembly passed Resolution 3103, condemning mercenaries when employed by "racist" or "colonial" regimes. (50) These two resolutions were a direct response to the use of mercenaries in African wars of independence. (51) Neither resolution passed by wide enough margins to be considered customary international law. (52)

        The General Assembly issued Resolution 2625 in 1970, stating, "[e]very state has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State." (53) In 1974, the General Assembly passed Resolution 3314 as part of an attempt to define the crime of aggression. (54) The resolution categorized "the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state" as an act of aggression. (55)

        The cumulative effect of these resolutions is a summary of the customary international law of mercenaries. (56) States may not "organize, encourage, or send" mercenaries to use armed force against another state. (57) States may, however, knowingly tolerate mercenary activities, even when leading to the use of armed force against another state. (58)

      3. Protocol I's Mercenary Definition

        The United Nations provided the world with a definition of mercenary in its Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I). (59) After examining the records of the Protocol I Diplomatic Conference, U.S. Army lawyer Todd S. Milliard concludes the diplomats focused entirely on the experiences of Africa from 1960 to 1977. (60) This focus came at the expense of a larger regulatory scheme, and also ignored 3000 years of historical mercenary activities. (61) Article 47 of Protocol I strips a "mercenary" of the right to be a combatant, or a prisoner of war. (62) Article 47 subsequently lays out a six-element definition of mercenary as any person who (a) is specially recruited, (b) takes direct part in hostilities, (c) is motivated by private gain, and is neither (d) a national of a party to the conflict, (e) a member of the armed forces of a party to the conflict, nor (f) sent on official duty by a non-party state. (63)

      4. The Mercenary Convention

        Work began on the Mercenary Convention in 1980 and the United Nations presented the convention in 1989. (64) The Mercenary Convention adopts the definition of mercenary used in article 47 of Protocol I. (65) The Mercenary Convention, however, adds one element to the definition, expanding the coverage from international armed conflicts to all conflicts. (66) Breaking with previous approaches, the Mercenary Convention imposes criminal liability on anyone who "recruits, uses, finances or trains" mercenaries. (67) Further, the Mercenary Convention makes it a crime to be a mercenary and participate "directly in hostilities or in a concerted act of violence." (68) Finally, the Convention imposes attempt and accomplice liability on mercenaries and those who use them. (69)

        The Mercenary Convention required twenty-two signatories to enter into force. (70) Costa Rica became the twenty-second signatory in 2001. (71) The treaty focuses on the traditional, Cold...

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