Military Subcontractors under International Humanitarian Law ― A Contribution to the Distinction between Combatants and Civilians

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I Other reasons are military necessities given the overstretch of the US Army and political considerations - the US Congress does not have a say on the conduct and the number of subcontractors. See A.S. Tyson, "Private firms take on more military tasks", The Christian Science Monitor, 2 April 2004, available at http://www.csmonitor.com/2004/040?Jp03s01-usmi.html (last visited 9 October 2006). Cf. M. Schmitt, "Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees", 5 Chi. J. Int'l L 511, at 517 (2004).

2 Tyson, supra note 1. 3 J.R. Heaton, "Civilians at War: Reexamining the Status of Civilians Accompanying the Armed Forces", 57 Air Force Law Review 155, at 187 (2005). " Cf. R. Fenning, "The Iraqi security business urgently needs rules", Financial Times, 27 May 2004, available at http://www.accessmylibrary.com/coms2/summary 0286-21443400_ITM (last visited 9 October 2006). 5 See Tyson, supra note 1. 6 See D. Barstow, "Security Companies: Shadow Soldiers in Iraq", New York Times, 19 April 2004, at A 1. 7 See Fenning, supra note 4. 8 See also P. Carter, "Hired Guns - What to do about military contractors run amok", Slate Online Magazine, 9 April 2004, available at http://www.slate.com/id/2098571 (last visited 9 October 2006). 9 See Barstow, supra note 6, at Al. Cf. Heaton, supra note 3, at 186, identifies the three categories of security provision firms, military consulting firms and military support firms.

10 See A. Dworkin, "Security Contractors in Iraq: Armed Guards or Private Soldiers?", Crimes of War Project, 20 April 2004, available at http://www.crimesofwar.org/onnews/news-security. html (last visited 9 October 2006). See also http://www.privateforces.com (last visited 9 October 2006). " See A.E. Cha & R. Merle, "Line Blurs Between Soldiers, Civilian Contractors", Wall Street Journal, 14-16 May 2004, at Al. But see infra note 81. 'Z Quoted by C. Collins, "War-zone security is a job for ... private contractors?", The Christian Science Monitor, 4 May 2004, available at http://www.csmonitor.com/2004/0503/p02s01-usmi. html (last visited 9 October 2006). " See M.P. Flaherty & D. Priest, "More Limits Sought for Private Security Teams", Washington Post, 13 April 2004, at A15. " See Barstow, supra note 6, at Al. Cf. Fenning, supra note 7. 15 See Heaton, supra note 3, at 193.

'6 See Barstow, supra note 6, at Al. 17 See Carter, supra note 8. 'e See Flaherty & Priest, supra note 13, at A15. 19 See Chan & Merle, supra note 11, at Al. Cf. Schmitt, supra note 1, at 516. z° See A. Szigetvari, "Profitable Vertrage mit dem Tod im Irak", Der Standard, 19 August 2005, at 2. 21 See A. Faite, "Involvement of Private Contractors in Armed Conflict: Implications under International Humanitarian Law", 4 Defence Studies 168 (2004). zz See Cha & Merle, supra note 11, at A1.

z3 See F. Kalshoven/L. Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law 90 (2001). za See J.L. Taulbee, "Mercenaries, Private Armies and Security Companies in Contemporary Policy", 37 International Politics 438 (2000).

zs See P. Singer, "War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law", 42 Colum. J. Transnat'l G. 521 (2004). 26 see C. Pilloud et al., "Art. 43 AP I", in Y. Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987). 27 Ibid. z$ See M. Bothe/K.J. Partsch/W.A. Solf, New Rules for Victims ofArmed Conflicts, 233-240 (1982). Cf. Kalshoven/Zegveld, supra note 23, at 87. 29 see K. Ipsen, "Kombattanten und Nichtkombattanten", in D. Fleck (ed.), Handbuch des humanitaren Volkerrechts in bewaffneten Konflikten 61 (1994). 30 see also G. Aldrich, "The Taliban, al Qaeda, and the Determination of Illegal Combatants", Extract from 4 Humanitdres Volkerrecht 204 (2002), available at http://www.icrc.org/Web/Eng/ siteengO.nsflhtmlal1l5MY J 5E1$FILElGeorge+ Aldrich_3 _final. pdf?OpenElement (last visited 9 October 2006).

See K.W. Watkin, "Combatants, Unprivileged Belligerents and Conflicts in the 21s' Century", Background Paper, Harvard Program on Humanitarian Policy and Conflict Research, at 7, available at http://www.ihlresearch.org/ihl/pdfs/Session2.pdf (last visited 9 October 2006). this is not the equivalent to wearing an uniform, contrary to what Schmitt, supra note 1, at 526, seems to suggest. see Bothe et al., supra note 28, 233-240. " Ibid. 'S Contra apparently J. Paust, "There is No Need to Revise the Laws of War in Light of September 11'"", ASIL Task Force on Terrorism 9 (2002), available at http://www.asil.org/taskforce/paust. pdf (last visited 9 October 2006). 36 See also K. Dormann, "The legal situation of 'unlawful/unprivileged' combatants", 85 International Review of the Red Cross 46 (2003).

" See A. Cassese, "A Tentative Appraisal of the Old and the New Humanitarian Law of Armed Conflict", in A. Cassese (ed.), Current Problems of International Law: Essays on U.N. Law and the Law ofArmed Conflict 474 (1975), calls this formulation "rather wooly and open to subjective interpretations". 38 see Paust, supra note 35, at 10. 39 Cf. Watkin, supra note 31, at 9; Ipsen, supra note 29, at 67. this does, however, not exclude them from temporarily becoming unlawful combatants as will be explained below. " See also J-F. Queguiner, "Direct Participation in Hostilities under International Humanitarian Law", Background paper attached to the report prepared by the ICRC (2003), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/participation-hostilities-ihl-311205/$File/ Direct%20participation%20in%20hostilities-Sept%202003.pdf (last visited 9 October 2006).

'2 See also Watkin, supra note 31, at 16. 43 See J.S. Pictet (ed.), "Art. 4A", Commentary III on the Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949 (1960). 44 See Dormann, supra note 36, at 47. 's Cf. Dormann, supra note 36, at 46. See Watkin, supra note 31, at 4. " See Dormann, supra note 36, at 46, with further references. 48 Schmitt, supra note 1, at 513 et seq.

'9 See Pilloud, "Art. 51(3) AP I", in supra note 26. 50 See Kalshoven/Zegveld, supra note 23, at 99. 51 See Queguiner, supra note 41, at 3. Cf. Bothe et al., supra note 28, at 303. 5z See Bothe et al., supra note 28, at 301. 53 Though one could, of course, argue that "acts of war" in the definition by the International Committee of the Red Cross must be understood as excluding acts of self-defense. 54 See also Dworkin, supra note 10.

ss gut see Schmitt, supra note 1, at 534 et seq., who argues for a liberal interpretation in favour of direct participation in order to prevent disrespect for the law and to provide an incentive for civilians to remain distant from hostilities. While these may be valid considerations, it is submitted that the principle of distinction is not meant to have educational purposes but protect civilians hic and nunc. sb Similar Schmitt, supra note 1, at 534: "Perhaps the best track when analyzing a particular act is assessing the criticality of the act to the direct application of violence against the enemy."

57 Similar M. Guillory, "Civilianizing the Force: Is the United States Crossing the Rubicon?", 51 Air Force Law Review 134 et seq. (2001), who suggests the criterion of "integration in combat operations". 58 See Schmitt, supra note 1, at 543. 59 Similar Heaton, supra note 3, at 201. both et al., supra note 28, at 303-304, come to a very similar conclusion by basing their argument on the concept of "immediate threat to the adversary". Contrast this with Heaton, supra note 3, at 179, who advocates the principle of proximity to the physical location to the conflict as being decisive. 61 See note 55. bz But see Schmitt, supra note 1, at 533 et seq. 6' See Queguiner, supra note 41, at 4.

64 Tyson, supra note 1. bs Dworkin, supra note 10. See Flaherty & Priest, supra note 13, at A15. 6' See Fenning, supra note 7. 68 Cf. Szigetvari, supra note 20, at 2. See also the comments sampled by the BBC, "Are you a contractor in Iraq?", available at http://news.bbc.co.uk/2/hilmiddle_easú4640663.stm (last visited 9 October 2006).

69 See also Schmitt, supra note 1, at 524. 70 But see Dworkin, supra note 10. " But see Carter, supra note 8. 72 But see Dworkin, supra note 10. 73 Skeptical Schmitt, supra note 1, at 529. " See Carter, supra note 8. 75 L. Tumer/L. Norton, "Civilians at the Tip of the Spear", 51 Air Force Law Review 51 et seq. (2001), for a detailed description of the US rules and practice regarding the wearing of uniforms or a fixed distinctive sign by a contractor. Cf. also Guillory, supra note 57, at 128: "The contractors' policies on wearing uniforms are as varied as the military guidelines."

76 Schmitt, supra note 1, at 529 et seq. " But see Schmitt, supra note 1, at 528 et seq., who uses this criterion to deny combatant status to subcontractors under Article 4A(2) GC III. '8 See also Carter, supra note 8. 79 Dworkin, supra note 10, argues for combatant status on this basis. Carter, supra note 8, also criticizes the blurring of distinction caused by the quasimilitary outfits and body armor of subcontractors. 8 According to an US Department of Army Guide "they, in effect, become substitutes for military personnel who would be combatants". Quoted by Heaton, supra note 3, at 193.

82 Quoted by Dworkin, supra note 10. 83 Similar ibid. �° See A. Yusuf, "Mercenaries in the Law of Armed Conflict", in supra note 37, at 117.

85 E. Frye, "Private Military Firms In The New World Order: How Redefining 'Mercenary' Can Tame The "Dogs Of War", 73 Fordham L. Rev. 2657 (2005). See also A. McDonald, "Guns 'n Butter for Hire: Some Legal Issues Concerning Private Military Companies", Background Paper, Clingendael Institute, 2 June 2004, available at http://www.ikv.nl/docs/200409091531239981. doc?&username=gast@ikv.nl&password=9999&groups=IKV (last visited 9 October 2006). Schmitt, supra note 1, at 528, without further discussion, dismisses the qualification of subcontractors as mercenaries. 16 J.C. Zarate, "The Emergence of a New Dog of War: Private International Security Companies, International Law, and the New World Disorder", 34 Stan. J. lnt'l L. 124 (1998). $' The USA has not ratified Protocol I and does not recognize Art. 47 as legally binding by any other way. See Frye, supra note 85, at 2640. 88 Carter's argument, supra note 8, that because they don't work "for a foreign government in a war zone in which their own country isn't part of the fight", therefore misses the point. $9 See Kalshoven/Zegveld, supra note 23, at 99; Ipsen, supra note 29, at 59. Cf. Dormann, supra note 45; L. Vierucci, "Prisoners of War or Protected Persons qua Unlawful Combatants? - The Judicial Safeguards to which Guantanamo Bay Detainees are Entitled", 1 Journal of International Criminal Justice 284 (2003).

�° See Frye, supra note 85, at 2636 and at 2661 et seq.

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