Private Military Contractors in Iraq - Legal Status and State Responsibility

Abstract: In March 2003, the United States' armed forces and their allies invaded Iraq. Today, more than three years later, those armed forces are still there. An extended military operation like this requires a massive amount of soldiers. To be able to provide adequate security and fulfill all the jobs required to maintain the armed forces in Iraq, the United States' government and its' subdivisions, have hired private military firms (PMFs) to assist the overstreched US' military. PMFs are private business entities that provide governments with all the core functions of what is traditionally considered military work. Even though, in many situations, the work of the PMFs is indistinguishable from the work of the armed forces, at the end of the day the PMFs are private business entities and thus fall outside the military chain of command and oversight. Private military contractors providing military functions in occupied territory, without actually being members of the armed forces, seem to blur the distinction between combatants and civilians. For a State to obtain a clear distinction between those two categories, is essential for the well being- and security of society and humanity. As the privatized military industry stands today, it is completely unregulated. No restrictions seem to exist concerning who can work for the firms or for whom the firms can work. Since the contracts between the USA and the PMFs are protected by proprietary law, those contracts are not open to public scrutiny. Private military contractors are immune from prosecution in Iraq. Donald Rumsfeld has stated that the regulation, oversight and punishment of contractors is solely up to the firms themselves. So far, no contractors have been punished for crimes committed in Iraq. Considering that the occupation has went on for more than three years and over thirty thousand contractors are providing military work in Iraq, the fact that no contractors have been punished for crimes is rather astounding. According to IHL, private military contractors (PMCs) do not meet the criteria for obtaining the legal status of combatants. Hence, they are not allowed to participate in combat. Since PMCs are not combatants, they are civilians. The 1949 Geneva Conventions permits the use of civilian contractors in a civil police role in occupied territory. Such civilian contractors may be authorized to use force when absolutely necessary, to defend persons or property, or in self defence. Given the fluid nature of the current situation in Iraq, it may sometimes be difficult to descern whether private contractors are performing law enforcement duties or are engaged in actual combat. If their activities amount to combat, they become lawful targets of attack during the time they take part in hostilities and could become prosecuted for their hostile acts. The private military industry has emerged explosively in the last decade. This new accessibility to contract military functions to private lawful entities has changed the providing of international security and the way of waging war, forever. Using private actors in the military, carrying out mission critical roles, can be very harmful if it is not clearly regualted. Who will be responsible for the acts of these private entities? Can a State (in this case the United States of America) use private actors in a war or occupied territory, doing the exact same job as the military, and not be held responsible for those acts? In my opinion, the answer to that question is no. To be able to attribute the conduct of the PMCs to the USA, first one has to determine the legal status of the contractors, and then go on to the question of attribution. My study shows that the USA (or any other State that recruits PMFs) are internationally responsible for the conduct of those contractors. To let private actors act in war or occupied territory, uncontrolled and without the ability to attribute their acts to the State, would be very harmful to the international society.