The status of private military contractors under international humanitarian law.

Author:Kidane, Won

    The resort to and conduct of warfare has a long history of regulation. (1) The set of rules commonly known as the jus ad bellum provide the legal limits to the commencement of warfare. (2) The set of rules known as the jus in bello set forth the legal limits to its conduct. (3) The latter set of rules properly identifies all of the parties involved in hostilities and defines their rights and responsibilities. (4) In contemporary usage, the latter set of rules is commonly referred to as International Humanitarian Law (IHL). (5) Although IHL is not premised on the recognition that war is inevitable, (6) it seeks to mitigate the tragic consequences through regulations whenever and wherever it occurs. (7) The difficult equilibrium that it seeks to maintain is between military necessity and humanity. (8) As early as 1868, one of the landmark declarations known as the St. Petersburg Declaration neatly put the difficult equation as "the technical limits at which the necessity of war ought to yield to the requirements of humanity." (9)

    The fundamental approach designed to attain a principled equilibrium between military necessity and humanity is the definition of the status of each and every party and individual involved and affected by warfare. The laws that regulated warfare prior to the Second World War focused on the protection of persons who had already fallen victim to warfare and rendered harmless, including the wounded, the captive, and the interned. (10) As the nature and magnitude of warfare changed, the scope of its reach obviously widened. (11)

    The International Committee of the Red Cross (ICRC) commentary on Geneva Convention IV notes that the legal norms that regulated warfare prior to 1945 "had only applied to the armed forces, a well-defined category of persons, placed under the authority of responsible officers and subject to strict discipline" but then it became necessary "to include an unorganized mass of civilians scattered over the whole of the countries concerned." (12) That essentially led to the adoption of the Geneva Convention IV, which protects civilians in times of war. (13) The Convention identifies each individual involved in and affected by warfare and defines the scope of protection. (14)

    In the summary of rationales section of their introduction to Documents on the Laws of War, professors Roberts and Guelff point out that one of the two most important rationales of the laws of war is that "[a]rmed hostilities should as far as possible be between organized armed forces, not entire societies: hence the efforts to maintain a 'firebreak' distinguishing legitimate military targets from civilian objects and people not involved in armed hostilities." (15)

    It follows that the major distinction that the law makes is between combatants and non-combatants or civilians. (16) This distinction is extremely important because it determines the most important issue of who may kill or injure another human being during combat without fear of prosecution. (17) To this effect, article 43 of Additional Protocol II provides that "[m]embers of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities." (18) No other person is ordinarily entitled to a combatant status. If a person who does not have a combatant status gets involved in hostilities, he not only loses protection as a civilian but may also be prosecuted for any actions, including for killing an enemy solider. (19) Others claiming civilian status who may be prosecuted include mercenaries, (20) spies, (21) and other kinds of unlawful combatants. (22)

    In the post-Cold War era, the legal regulation of armed conflict has been complicated by the advent of a remarkable new player: the privatized military industry. (23) This multi-billion dollar industry drew its strength from providing efficient services to sovereign governments. (24) Today, private military contractors operate from "Albania to Zambia" and perform anything from transporting food and medicine to designing precision weaponry and performing outright combat duties. (25) Their clients range from brutal dictators to democratic governments and humanitarian agencies. (26) Because IHL took its current shape and form prior to and during the Cold War, the new players were not a significant part of the equation. As such, the status of today's private military contractors is ambiguous at best. (27)

    The debate over the desirability of engaging private military contracts in activities traditionally performed by uniformed military personnel raises complex legal, political, and socio-economic issues and is outside the scope of this article. This article, however, attempts to characterize the status of civilian military contractors under IHL, which has traditionally governed the conduct of armed conflict where the status of all parties to the conflict is clearly defined, and identify appropriate IHL standards that could be used for the regulation of civilian military contractors. Professor David Kennedy makes an interesting observation when he notes that "[i]n broader terms, modern war reflects modern political life. In large measure, our modern politics is legal politics: the terms of engagement are legal, and the players are legal institutions, their powers expanded and limited by law." (28) Accordingly, this article argues and properly assumes that the most pertinent body of law is IHL because the very existence of the private military industry is inextricably linked to the existence of the threat and use of military force; in other words, the existence of war. It further contends, therefore, that identification of the exact legal status under IHL of all the players is an essential step in understanding and regulating their future role.

    Because event driven scholarship often tends to focus on the specifics of the given event, the legal literature that followed the news of the involvement of private military contractors in the abuses that occurred in the Iraqi prisons, particularly at Abu Ghraib, almost exclusively focused on ways and means of holding them immediately accountable for their role in the reported abuses. (29) Little effort seems to have been made to assess their general status under IHL. Such assessment is useful for several important reasons. Primarily, it identifies the gaps in the existing law, not only as it pertains to their accountability, but also as it relates to their own protection and the responsibilities of the states which host them and use their services. Secondly, it offers an important guidance as to how to supplement the gap and provide for their regulation. Thirdly, it helps to reemphasize the notion that the principal theoretical foundation for the discourses pertaining to the regulation of this particular industry must begin with IHL standards.

    With this view, this article is divided into five parts. Part II provides a historical background on the legal limitations in warfare, and the monopoly of the use of coercive force by states to the exclusion of all other types of entities, including organized private forces. It also highlights the perceived necessity and philosophical underpinnings of the monopoly of the use of force by the state. Part III discusses the concept of lawful combatancy, and offers an analysis of the definition of the status of each and every party involved and affected by armed conflict and sets the stage for the discussion of the status of today's private military contractors. Part IV highlights the nature and functions of the private military contracts and attempts to define their status under IHL based on the discussion in Part III of the various possible statuses. To put their status into perspective, it provides a detailed discussion of the various functions they perform in a legal continuum, and suggests an IHL based theoretical framework for the regulation of their operations. Part V concludes the article.


    Part II provides a brief description of the historical and philosophical underpinnings of limitations in warfare, and the notion, perceived necessarily, and development of the monopoly of all instruments of coercion by the state.

    1. Limitations in Warfare

      Military historian J.F.C. Fuller notes that "[p]rimitive tribes are armed hordes, in which every man is a warrior, and because the entire tribe engages in war, warfare is total." (30) He further notes that the objective of war was not only to defeat the armed forces of the opposing tribes but to overturn their entire social structure. (31) In situations where every man is a warrior, and the objective is to overturn the entire structure of the society, it is difficult to imagine the applicability of recognizable limits to warfare. Writing in the context of the historical development of state responsibility, Professor Brownlie noted that "[t]racing the origins of legal concepts and institutions can be an artificial and practically fruitless endeavor." (32) Indeed, pinpointing to a particular historic juncture during which states raised armies and monopolized all types of coercive force to the exclusion of all other entities and began to abide by certain rules of war could be very difficult.

      In fact, perspectives seem to differ on whether limitations of humanity have always characterized human conflict. For example, Professor Stephen Neff suggests that war seems to have always been understood "as an exercise more in skill and craftsmanship than blind anger or emotion." (33) To support his position, he quotes from Proverbs:

      Wisdom prevails over strength, Knowledge over brute force; For wars are won by skilful strategy, and victory is the fruit of long planning. (34) He further notes that in Greek mythology...

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