Blackwater, possible Nonlawful Combatants?

[SirNitram]

Link

WASHINGTON -- As the Bush administration deals with the fallout from the recent killings of civilians by private security firms in Iraq, some officials are asking whether the contractors could be considered unlawful combatants under international agreements.

The question is an outgrowth of federal reviews of the shootings, in part because the U.S. officials want to determine whether the administration could be accused of treaty violations that could fuel an international outcry.

But the issue also holds practical and political implications for the administration's war effort and the image of the U.S. abroad.

If U.S. officials conclude that the use of guards is a potential violation, they may have to limit guards' tasks in war zones, which could leave more work for the already overstretched military.

Unresolved questions are likely to touch off new criticism of Bush's conduct of the unpopular Iraq war, especially given the broad definition of unlawful combatants the president has used in justifying his detention policies at Guantanamo Bay, Cuba.

The issues surrounding the private security contractors are being examined by lawyers at the departments of State, Defense and Justice. Disagreements about the contractors' status exist between agencies and within the Pentagon itself.

"I think it is an unresolved issue that needs to be addressed," said a senior Defense Department official who spoke on condition of anonymity because he was not authorized to discuss the subject. "But if that is in fact the case, what the heck are we doing?"

The use of private contractors by the U.S. military and governments worldwide began long before the U.S invasions of Afghanistan and Iraq, but it has mushroomed in recent years. With relatively little controversy, contractors have assumed a greater share of support and logistics duties traditionally handled by uniformed military, such as protecting diplomats inside a war zone.

On Sept. 16, a Blackwater USA security team guarding U.S. diplomats was involved in a shooting that killed as many as 17 Iraqis. Blackwater said its personnel were under attack, but Iraqis said the team began the shooting.

Other incidents portraying the private guards as aggressive and heavily armed have since come to light.

The guards also operate under immunity from Iraqi law -- immunity was granted in 2004 by U.S. officials -- and in a murky status with respect to American laws.

The designation of lawful and unlawful combatants is set out in the Geneva Convention.Lawful combatants are nonmilitary personnel who operate under their military's chain of command. Others may carry weapons in a war zone but may not use offensive force. Under the international agreements, they may only defend themselves.

The amount of force being used in Iraq by security firms like Blackwater has raised questions.

The United States already has faced international criticism about its interrogation techniques and detention procedures, and charges that such practices do not adhere to international treaties. It was the government lawyers involved in those matters who first raised questions about the legal status of the private security contractors under Geneva Convention provisions.

But there is debate among those studying the question. Lawyers at the Justice Department are skeptical that the contractors could be considered unlawful combatants, but some in the State and Defense departments think the contractors in Iraq could be vulnerable to claims that their actions make them unlawful combatants.

If so, some experts say, the U.S. would have to pull them out of the war zone.

Legal experts widely agree that private contractors are allowed to use force to defend themselves. But the threshold between defensive and offensive force is ill-defined.

"In terms of these private military contractors, it really is, legally speaking, very convoluted," said the senior Defense official. "It is always true that people can defend themselves. The question then becomes: At what point does a contractor who is providing defensive security go beyond that?"

Interpretations also vary in academic circles, where the issue has been the subject of articles and discussions.

For a guard who is only allowed to use defensive force, killing civilians violates the law of war, said Michael N. Schmitt, a professor of international law at the Naval War College and a former Air Force lawyer. "It is a war crime to kill civilians unlawfully in an armed conflict," he said.

If the contractors were the aggressors in an incident, they could be deemed to be unlawfully using offensive force, said Scott Silliman, a retired Air Force lawyer and now a professor at Duke University. He said they could claim self-defense only if they had been fired on.

"The only force they can use is defensive force," Silliman said. "But we may be seeing some instances where contractors are using offensive force, which in my judgment would be unlawful."

Some current Defense Department lawyers think that interpretation is too restrictive. Like soldiers, the security guards should be able to defend themselves if they detect "hostile intent," said the Defense official.

But the guards often participate in operations where the line between defensive and offensive force is hard to determine, such as escorting a diplomat through a neighborhood in a war zone, as many frequently do.

Those operations may be best left to the military, some experts said.

"To what extent is it appropriate to have people not in the chain of command under the president of the United States involved in the application of force?" the official asked.

Any doubt on the legal status of the contractors is likely to open the United States to further criticism from the international community.

John Hutson, a former top Navy lawyer, said he did not consider contractors to be unlawful combatants.

But that will be a difficult argument for U.S. officials to make, he emphasized.

"We are going to be hard-pressed to draw a distinction between the guys in Blackwater carrying automatic weapons and the bad guys setting bombs along the side of the road," said Hutson, now dean of Franklin Pierce Law Center in New Hampshire.

U.S. officials have described many of the suspected Al Qaeda and Taliban affiliates it holds at Guantanamo Bay as unlawful combatants either for taking part in hostilities against the United States or by supporting the hostilities while not part of a nation's military.

By that standard, some of the private guards in Iraq and Afghanistan also could be seen as unlawful combatants, particularly if they have taken offensive action against unarmed civilians, experts said.

"If we hire people and direct them to perform activities that are direct participation in hostilities, then at least by the Guantanamo standard, that is a war crime," Schmitt said.

The 2004 immunity measure prevents Iraq from prosecuting private guards under Iraqi law. But some international law experts think Iraq could use international treaties to try contractors for killing civilians.

For now, such trials are considered unlikely, especially because the Iraqi government does not have the contractors in custody.

Many of the current and former federal officials think the administration has an obligation under the Geneva Convention to clarify the contractors' status. Some are perplexed that the Bush administration did not resolve these issues -- or at least discuss them more thoroughly -- before putting contractors on such a complex battlefield.

"It's confusing," Silliman said. "And a lot of us are wondering why the Department of Defense pushed them into core military roles."

[Vaporous]

It figures. Another notch on the huge fuck-up headboard.

But "perplexed that the administration didn't clarify the issue?" Since when did they ever give any indication of caring about the Geneva Conventions?

[Axis Kast]

The definitions of lawful, nonmilitary combatants and who is a mercenary have always been up in the air. Even the definitions currently preferred by the UN and African states - drawn up with the express intent of excluding outfits like Executive Outcomes from Third World hot zones - are so tenuous that, according to Doug Brooks, founder of a Private Military Security advocacy group, those who somehow manage to fall prey to prosecution under their strictures deserve what they get.

At the end of the day, private security companies are a fact of life. Our national army isn't going to get much bigger, but the need to undertake support tasks is actually growing. Western militaries lack - and will not soon acquire - the capacity to staff all the necessary positions required for full-spectrum, high-technology warfare. And on any other continent, private security companies at least have a reputation to worry about. The same can't be said for the paramilitary and militia forces that otherwise solve problems in Africa. Let us not forget that the Civil Defense Force and Sierra Leone Army were far, far less well-behaved from the point of view of international law than Executive Outcomes peronnel.

[ray245]

Sign...I got a feeling that blackwater may use the 'self-defense' for their cause...

What is the US self-defense law like? Meaning the exact strings and etc.

[Sidewinder]

"It's confusing," Silliman said. "And a lot of us are wondering why the Department of Defense pushed them into core military roles."

"Silly-Man" deserves a "Duh!" for wondering: the DoD simply does not have enough men and women in uniform to perform all the duties demanded of them, and the US doesn't have an alternative to hiring mercenaries... well, no alternative other than simply withdrawing from Iraq.

[CJvR]

Isn't Mercenaries specificly excluded from the protection of the various conventions?

[eyl]

Isn't Mercenaries specificly excluded from the protection of the various conventions?

Yes and no.

The law in question is from Protocol Additional I to the Geneva Conventions, and states:

Article 47.-Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
2. A mercenary is any person who:

(a) Is specially recruited locally or abroad in order to fight in an armed conflict;

(b) Does, in fact, take a direct part in the hostilities;

(c) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

(e) Is not a member of the armed forces of a Party to the conflict; and

(f) Has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

There are several problems, however.

First is the question of the standing of the Protocol Additional. The US is not a signatory to it, and there is some debate as to whether the Protocol as a whole* is a part of customary international law. If not, it wouldn't apply.

Second, how do you define "Does, in fact, take a direct part in the hostilities"? If you have a civilian security guard on a warehouse, and a militia attacks it, is he taking part in hostiilities? The line, in some situations, can get very blurred.

Third, assuming Blackwater personnel are US citizens, they would be excluded from the definition under Article 47(d)

*Some parts of it are customary international law, because the Protocol Additionals were intended to both codify already existing customary law and introduce new laws (or elaborations to existing laws) -AFAIK they were actually originally intended to be a series of issue-specific treaties rather than two comprehensive ones.

[PainRack]

For a guard who is only allowed to use defensive force, killing civilians violates the law of war, said Michael N. Schmitt, a professor of international law at the Naval War College and a former Air Force lawyer. "It is a war crime to kill civilians unlawfully in an armed conflict," he said.

Waitaminute........ Is this guy trying to say that SOLDIERS, as opposed to "guards" can kill civilians unlawfully in an armed conflict?

Frankly, I don't really see what this article is attempting to claim. If security guards can't escort a diplomat, what's the purpose of hiring bodyguards then?

And if Blackwater had used unauthorised force against civilians in the first place, it doesn't matter whether or not they're unlawful combatents or soldiers, they're still going to get screwed under international law. The sole difference will be in terms of severity.

[Sturmfalke]

For a guard who is only allowed to use defensive force, killing civilians violates the law of war, said Michael N. Schmitt, a professor of international law at the Naval War College and a former Air Force lawyer. "It is a war crime to kill civilians unlawfully in an armed conflict," he said.

Waitaminute........ Is this guy trying to say that SOLDIERS, as opposed to "guards" can kill civilians unlawfully in an armed conflict?

I think what he wants to say is that it is always a war crime to kill civilians unlawfully, both for soldiers and for "guards", which makes sense.

And if Blackwater had used unauthorised force against civilians in the first place, it doesn't matter whether or not they're unlawful combatents or soldiers, they're still going to get screwed under international law. The sole difference will be in terms of severity.

But who is going to enforce this international law, especially as they have been granted immunity from prosecution which was only revoked after all those incidents? (Has it been revoked now, or were they only planning to do so?)

[The Dark]

(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

Third, assuming Blackwater personnel are US citizens, they would be excluded from the definition under Article 47(d)[/quote]That is at best debatable - once the US turned control of the country of Iraq over to its government, it was (legally) no longer a Party to the conflict. They are involved in the conflict, but since there is not a state of war between the United States and Iraq, nor is Iraq under occupation by the United States (legal term - while we have troops there, they're not considered an occupying force), the United States is not a Party to the conflict.

[The Dark]

(d) Is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

Third, assuming Blackwater personnel are US citizens, they would be excluded from the definition under Article 47(d)

That is at best debatable - once the US turned control of the country of Iraq over to its government, it was (legally) no longer a Party to the conflict. They are involved in the conflict, but since there is not a state of war between the United States and Iraq, nor is Iraq under occupation by the United States (legal term - while we have troops there, they're not considered an occupying force), the United States is not a Party to the conflict.

Fixed quote tags - could someone delete my previous post?

[eyl]

Third, assuming Blackwater personnel are US citizens, they would be excluded from the definition under Article 47(d)

That is at best debatable - once the US turned control of the country of Iraq over to its government, it was (legally) no longer a Party to the conflict. They are involved in the conflict, but since there is not a state of war between the United States and Iraq, nor is Iraq under occupation by the United States (legal term - while we have troops there, they're not considered an occupying force), the United States is not a Party to the conflict.

Fixed quote tags - could someone delete my previous post?

Possibly. Problem is that the laws of war don't neatly fit situations where one side is fighting an irregular group in the territory of a group which isn't (at least on the face of it) involved with the irregulars, or fighting against them. Though I suppose it could be argued that the US and Iraq are allied and in a state of hostilities against the insurgents.

[Beowulf]

You need to define Party to the conflict. The term isn't actually defined in the 4th GC. The most reasonable is that it's whatever nations/groups are actually fighting.

[Glocksman]

Sign...I got a feeling that blackwater may use the 'self-defense' for their cause...

What is the US self-defense law like? Meaning the exact strings and etc.

IANAL, but in the US, there is no single 'Federal' self defense law.
Each state sets its own rules WRT self defense claims in homicide cases.
What is a perfectly legal action in Indiana would see me thrown in jail in New Jersey.

As far as Blackwater is concerned, there might be a UCMJ or federal statute addressing self defense claims in situations such as Iraq, but I don't know if one exists or not.

[The Yosemite Bear]

so where's machevelli when we really need him?