Special Issues Affecting Contractors in a Battle Space

• Pages: 30-45

30

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

Space

A. Status of Contractors with Respect to Self-Defense, Arming, and the Use of

Force

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

31

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

Department.

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