Academic journal article Chicago Journal of International Law

Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees

Academic journal article Chicago Journal of International Law

Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees

Article excerpt

Over the past decade, many military affairs analysts have touted the advent of a "revolution in military affairs."1 Although generally framed in the context of those technological advances that make possible four-dimensional, networkcentric warfare, it is the dramatic "civilianization" of conflict that may prove normatively more revolutionary.2

In no conflict has the civilian footprint supporting military operations been larger than in Iraq.3 This paper begins by examining civilian employee and private contractor involvement in Operation Iraqi Freedom ("OIF") as a case study in the contemporary nature of such participation. It then assesses the possibility of either de jure or de facto integration of civilians into the armed forces. Concluding that integration will be rare, the article turns to the issue of when it is that civilians can be classified as "directly participating in hostilities," thereby becoming both lawful targets of attack and prosecutable for their actions. Finally, it concludes with an analysis of various scenarios involving civilian participation.

I. CIVILIANS AND THE WAR IN IRAQ

Estimates of the number of government civilian employees and contractor personnel present in Iraq range from twenty to thirty thousand, making civilian workers the second largest contingent in-country.4 These figures do not include the thousands of nonmilitary personnel who support OIF from outside the country.

The scope of conflict-related activities which civilians perform today is unprecedented. Of greatest importance is their centrality to the complex logistics system that supports the Coalition armies. For instance, civilian contract employees drive the nearly seven hundred trucks that deliver supplies daily to the sixty military bases across Iraq.5 They also provide most of the combat service support (for example, feeding troops and maintaining billeting facilities).

Closer to the fight, civilians maintain complex weapons systems such as the F-Il7 Nighthawk fighter, B-2 Spirit bomber, Ml Abrams tank, and TOW missile system, and operate the Global Hawk and Predator unmanned aerial vehicles ("UAV"). Civilians also conduct intelligence collection (especially with remote sensors) and analysis, although often from outside the area of operations. Contractors and government civilians have even interrogated prisoners of war and other detainees, regrettably participating in the now-infamous abuse incidents.6 By September 2004, investigators had recommended referral of six cases of alleged contractor abuse to the US Department of Justice for possible prosecution.7

Private security companies ("PSCs") have even been protecting employees and facilities of the US government, other governments, and private companies.8 PSCs (over fifty operate in Iraq) range in size from a few individuals to hundreds. Global Risks, for example, employs 1100 personnel, including 500 Gurkha and 500 Fijian troops, thereby making it one of the larger "military" contingents in Iraq.9 Contractors provided personal security for Coalition Provisional Authority ("CPA") Administrator L. Paul Bremer, as they currently do for senior civilians and distinguished visitors. They also guard nonmilitary facilities at the Baghdad airport and inside the Green Zone, protect convoys, and shoulder the lion's share of training for the New Iraqi Army, paramilitary forces, and law enforcement organizations.10

Secretary of Defense Rumsfeld has asserted that PSCs in Iraq "provide only defensive services,"11 but some of their activities appear indistinguishable from military operations.12 Consider an incident in April 2003 during which employees of Blackwater USA engaged in an intense battle with insurgents who were attacking the CPA headquarters in Najaf. Thousands of rounds of ammunition and hundreds of 40mm grenades were expended in the firefight, and the company used its own helicopters to resupply employees during the battle. …

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