The Status of Private Military Contractors under International Humanitarian Law

By Kidane, Won | Denver Journal of International Law and Policy, Summer 2010 | Go to article overview

The Status of Private Military Contractors under International Humanitarian Law


Kidane, Won, Denver Journal of International Law and Policy


I. INTRODUCTION

The resort to and conduct of warfare has a long history of regulation. (1) The set of rules commonly known as the jus ad bellum provide the legal limits to the commencement of warfare. (2) The set of rules known as the jus in bello set forth the legal limits to its conduct. (3) The latter set of rules properly identifies all of the parties involved in hostilities and defines their rights and responsibilities. (4) In contemporary usage, the latter set of rules is commonly referred to as International Humanitarian Law (IHL). (5) Although IHL is not premised on the recognition that war is inevitable, (6) it seeks to mitigate the tragic consequences through regulations whenever and wherever it occurs. (7) The difficult equilibrium that it seeks to maintain is between military necessity and humanity. (8) As early as 1868, one of the landmark declarations known as the St. Petersburg Declaration neatly put the difficult equation as "the technical limits at which the necessity of war ought to yield to the requirements of humanity." (9)

The fundamental approach designed to attain a principled equilibrium between military necessity and humanity is the definition of the status of each and every party and individual involved and affected by warfare. The laws that regulated warfare prior to the Second World War focused on the protection of persons who had already fallen victim to warfare and rendered harmless, including the wounded, the captive, and the interned. (10) As the nature and magnitude of warfare changed, the scope of its reach obviously widened. (11)

The International Committee of the Red Cross (ICRC) commentary on Geneva Convention IV notes that the legal norms that regulated warfare prior to 1945 "had only applied to the armed forces, a well-defined category of persons, placed under the authority of responsible officers and subject to strict discipline" but then it became necessary "to include an unorganized mass of civilians scattered over the whole of the countries concerned." (12) That essentially led to the adoption of the Geneva Convention IV, which protects civilians in times of war. (13) The Convention identifies each individual involved in and affected by warfare and defines the scope of protection. (14)

In the summary of rationales section of their introduction to Documents on the Laws of War, professors Roberts and Guelff point out that one of the two most important rationales of the laws of war is that "[a]rmed hostilities should as far as possible be between organized armed forces, not entire societies: hence the efforts to maintain a 'firebreak' distinguishing legitimate military targets from civilian objects and people not involved in armed hostilities." (15)

It follows that the major distinction that the law makes is between combatants and non-combatants or civilians. (16) This distinction is extremely important because it determines the most important issue of who may kill or injure another human being during combat without fear of prosecution. (17) To this effect, article 43 of Additional Protocol II provides that "[m]embers of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities." (18) No other person is ordinarily entitled to a combatant status. If a person who does not have a combatant status gets involved in hostilities, he not only loses protection as a civilian but may also be prosecuted for any actions, including for killing an enemy solider. (19) Others claiming civilian status who may be prosecuted include mercenaries, (20) spies, (21) and other kinds of unlawful combatants. (22)

In the post-Cold War era, the legal regulation of armed conflict has been complicated by the advent of a remarkable new player: the privatized military industry. (23) This multi-billion dollar industry drew its strength from providing efficient services to sovereign governments. …

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