“Some of the newest armed non-state parties operating in unstable states and conflict situations come from an unusual source: the private sector.”
Expansion of U.S. involvement in Iraq and Afghanistan has made private military and security contractors (PMSCs) virtually indispensable. In her book One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy, Allison Stanger reveals that last year, PMSCs accounted for 48 percent of the U.S. Defense Department’s workforce in Iraq and 57 percent in Afghanistan. “Without a multinational contractor force to fill the gap,” she argues, “we would need a draft to execute these twin interventions.” Hired help it seems, is the only way for a thinly stretched U.S. military to sustain current operations.
“On a superficial level, the shift means that most of those representing the United States … will be wearing the scruffy cargo pants, polo shirts, baseball caps and other casual accoutrements favored by overseas contractors rather than the fatigues and flight suits of the military.” A closer look reveals that today’s private contractors do everything from providing security services at U.S. embassies to performing “enhanced interrogations” – a.k.a. torture – at Abu Ghraib and loading bombs onto remotely piloted Predator drones that lethally target members of Al Qaeda.
This growing involvement in core military operations has sparked debate over the role, status and accountability of private contractors under international humanitarian law (IHL). In her contribution to the International Review of the Red Cross, Lindsey Cameron suggests that two incidents – to which I shall add a third – have driven the discourse. First, the death of four employees from Blackwater Worldwide, a private security company now known as Xe Services, and the ensuing attack on Fallujah in 2004. The use of “overwhelming force” suggests the contractors were carrying out an undeniably military function, and should be treated as combatants under IHL. The second and third incidents involved allegations of torture by CACI International of Abu Ghraib detainees and the 2007 shooting of 17 Iraqi civilians by Blackwater employees.
In effect, PMSCs are able to act outside of the law. Contractors performing military functions in armed conflicts are inter alia vulnerable to being captured and denied protection, just as they are capable of committing de facto war crimes. It is unacceptable that crimes could be committed under international law and neither an individual nor a government could be held accountable.
In dealing with PMSCs, international humanitarian law’s binary categories and status determinations (“civilian” or “combatant”) are problematic; every individual must be either a civilian or a combatant. Though clear-cut rules and mutually exclusive categories facilitate effective and coherent implementation of IHL, they also create gaps that leave the law paralyzed when it is confronted with anomalous entities that do not fit cleanly into one of the categories.
The question remains: are PMSCs combatants? Their status determination is critical because it affects whether or not an individual can (a) be targeted, (b) participate in hostilities, and (c) be prosecuted for breaches of the laws of war (as they are enshrined in the Geneva Conventions and their Additional Protocols).
Cameron argues that the status of PMSC employees hinges on either their integration into a state’s armed forces under Art. 4A(1) of the Third Geneva Convention (GCIII) or Art. 43 of Protocol I, or their qualification as “militia” under Art. 4A(2) GCIII. Meeting the first requirement depends on the internal laws of the state, while the second requires that conditions (a)-(d) of Art. 4A(2) GCIII be meet by “the group as a whole.” It is challenging however, to determine the status of private contracting firms in which some members perform peaceful functions (such as feeding, housing and clothing the troops) while other members take direct part in hostilities.
The outsourcing of military functions is a modern day reality. “It is a fact that currently private contractors are the equivalent of an American Express card … the U.S. military literally can’t go to war without them,” notes David Isenberg, an adjunct scholar at the Cato Institute.
“The problem is less one of the fact that outsourcing is occurring … but the issue is how it is managed,” suggests Stanger. Private contractors when performing combatant functions should be held to the same humanitarian law standards as parties to the conflict. Responsibility should furthermore fall on the contracting government to manage the dissemination of IHL to ensure that any individual likely to be engaged in combat is aware of the existing legal framework that should guide his actions. We cannot continue to let private military and security contractors fall through the cracks in IHL.
 Based on data from the U.S. Congressional Research Service. Thomas Friedman, “The Best Allies Money Can Buy” The New York Times (3 November 2009), online: < http://www.nytimes.com/2009/11/04/opinion/04friedman.html>.
 Friedman, supra note 2 at 1.
 James Glanz, “Contractors Outnumber U.S. Troops in Afghanistan” The New York Times (1 September 2009), online: < http://www.nytimes.com/2009/09/02/world/asia/02contractors.html?_r=3&scp=1&sq=Contractors%20Outnumber%20U.S.%20Troops%20in%20Afghanistan&st=cse >
 Friedman, supra note 2 at 1.
 Cameron, supra note 1 at 574.
 Cameron, supra note 1 at 583.
 Mickey Edwards, “So who’s in charge?” The Boston Globe (25 October 2009), online: < http://www.boston.com/ae/books/articles/2009/10/25/so_whos_in_charge/ >.