Special Issues Affecting Contractors in a Battle Space

Chapter 3
Special Issues Affecting Contractors in a Battle Space
I. Executive Summary
Government contracts for services or supplies in a “battle space,” that is, an area of
United States military operations against enemy forces, whether they be state actors or non-state
actors, present unique risks. Increased reliance on contractors in support of military missions
gives a heightened importance to these complex issues. These contracts are typically performed
in austere areas remote from mainland United States. The nature and environments in which
these contracts are performed lead to the unique challenges highlighted below.1 The law
affecting battle space contractors is constantly evolving, particularly relating to the status of
contractors on the battlefield, the use of force by contractors, and liability to third parties.
Contractors operating overseas should carefully examine their contracts, implement appropriate
safeguards, and stay abreast of continuing developments in these areas of the law.
II. Overview and Selected Unique Areas of Law Applicable to Contractors in the Battle
A. Status of Contractors with Respect to Self-Defense, Arming, and the Use of
A unique feature of battle space contracts is the status of the employees performing those
contracts under a variety of international agreements. Two international agreements are
particularly relevant: the Geneva Conventions and their Additional Protocols addressing
humanitarian law and the Vienna Convention on Diplomatic Relations governing the status of
diplomats and persons supporting diplomatic missions. The US government has published
several procurement rules explaining the status of contractor employees under these conventions
when they deploy with an armed force of the United States, in a battle space/operational area of
an armed force, or in support of a diplomatic or consular mission outside the United States.
However, the underlying laws governing contractor employees in these situations are found in a
variety of sources, including other treaties, conventions, international agreements (including so-
called Status of Forces Agreements [SOFAs]), domestic laws, host nation law, and third country
laws. Prudent contractors and contracting officials should consult legal counsel regarding the
rules before executing a battle space contract and whenever questions arise concerning the status
of employees during contract performance.
1. Geneva and Vienna Conventions
The rules that apply to State Department contractors versus Defense Department
contractors are different.2 State Department activities come under the Vienna Convention on
Diplomatic Relations of 1961. The Vienna Convention, inter alia, grants diplomatic immunity to
personnel acting on behalf of the State Department. The terms and conditions, or statement of
work, in some State Department contracts (such as those for services in Iraq and Afghanistan
after September 11, 2001) extend diplomatic immunity to “private security contractors” (e.g.,
bodyguards and facilities security guards) who protect embassies, their staff and diplomatic
visitors. Diplomatic immunity does not generally extend to contractors of the Defense
Conversely, under the Geneva Conventions, civilians, including contractor employees,
are divided into two groups: those who are authorized to accompany the armed forces (and who
possess an identification card evidencing that authorization in a format dictated by the
conventions), and those who are not authorized to accompany the force. Not all contractor
employees performing logistics support or security guard functions in or near an area of military
operations will be authorized to accompany the armed forces, as this designation is ordinarily

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