By Angad Bhandari
On the 13th of April this year U.S. Federal Judge Royce Lamberth sentenced one American citizen to life in prison for first-degree murder and three others to terms of 30 years each for the 2007 killing of 14 innocent Iraqi civilians at Nisour Square in Iraq. The defendants were not part of the U.S. military but were employees of a private military corporation, Blackwater. The extensive involvement by private forces in war-zones has given rise to some of the most deplorable cases of outright infringement on human rights including amongst others the 2007 Nisour Square shooting and the Abu Ghraib prison scandal.
The frontiers of war have witnessed a shift ever since the emergence of private military contractors (PMCs); some of the newest non-state military actors in unstable states. The private military industry is estimated to be worth in excess of USD 218 billion as of 2014. By no means is this a peculiarly American phenomenon; PMCs have trained military personnel in the Baltic States, assisted peacekeepers and displaced persons in Macedonia during the Kosovo crisis, actively engaged with the government of Angola and Sierra Leone in order to abet the state’s fight against rebels and have regularly been employed by the UN ever since their conception. From catering and back end logistics such as training and consulting to tactical front end roles; each of the functions of a conventional military can now be outsourced to private corporations.
The prevalent feeling across the global community is that it is best to regulate these corporations. However, much confusion have prevailed over the classification of such private contractors in the field of international law and, therefore- by extension- the mechanism of judicial redressal to be employed if contractors are found wanting on charges of rights abuse or war crimes. In this piece, an attempt is made to underscore the various issues relating to the regulation and accountability of PMCs in the field of International Humanitarian Law.
CONTRACTORS UNDER INTERNATIONAL LAW: MERCENARIES, COMBATANTS or CIVILIANS?
The Four Geneva Conventions and its Additional Protocols as well as the Hague Conventions recognize only three defined categories of individuals- namely combatants, mercenaries and civilians– as subjects of International Humanitarian Law in the field of armed conflict. No distinct category is reserved for PMCs and their personnel. A case-by-case approach is adopted in disputes involving PMCs as the entitlement to rights and the liability for responsibilities for an individual employee of such a firm corresponds to which category he or she is determined to fall into.
MERCENARIES:
Mercenaries are colloquially defined as guns for hire who participate in armed conflicts solely for the purpose of material profit. They are recognized as a distinct category and accorded a straitjacketed definition under international law as stipulated in Article 47 (2) of the Additional Protocol I to the Geneva Conventions 1977. Prima facie, one may deduce that PMC must fall under the aforementioned classification. However, the reality of the situation alludes to the contrary; for an individual to classified as such he or she has to- amongst other conditions-“take direct part in the hostilities.” However, PMC personnel predominantly engage in activities that do not involve direct participation in hostilities such as logistical and tactical support, intelligence, and training. Furthermore, there also exists confusion regarding what entails direct participation which makes it doubly difficult to hold contractors accountable as mercenaries under the Additional Protocol I. However, if found to be mercenaries – which is rarely the case- under this category, contractors are deprived of the “right to be a combatant or a prisoner of war” and are subjects under international humanitarian law without any legal protection.
COMBATANTS:
The status of a combatant under International Humanitarian Law is determined either “by reference to membership in the armed forces as stipulated in Article 43 of the Additional Protocol I or by reference to members entitled for POW status as stipulated in Article 4 of the Geneva Convention relative to the Treatment of Prisoners of War.” It is important to note that the status of a combatant is not explicitly defined under the Convention. However, it is stated that members of millitias and members of volunteer corps can be considered as combatants if the following four conditions are fulfilled:
a) that of being commanded by a person responsible for his subordinates;
b) that of having a fixed distinctive sign recognizable at a distance;
c) that of carrying arms openly;
d) that of conducting their operations in accordance with the laws and customs of war.
If deemed to be in this category the individual would be treated by law as any state military resource.
CIVILIANS:
The Geneva Convention defines any person who does not fall into the two factions mentioned above as a civilian. A negative definition is employed for the same; any individual who is not deemed as neither a mercenary (as has been defined in Article 4A) nor a combatant (according to Article 43 of the Third Convention) is treated as part of this category for legal purposes. In case of confusion as to which category a private contractor belongs to, he or she is- by definition- conferred the status of a civilian. This often implies an almost automatic absolution from any crimes one may or may not have committed.
Therefore, it can be deduced that the status of private military personnel is not static under international law. The classification of a PMC employee as a combatant, a civilian or a mercenary is contingent upon his or her activity during armed conflict and his or her affiliation with the parties to the conflict. Consequently, a problem of accountability and legal liability is birthed when cases relating to PMCs are dealt with.
CURRENT PROGRESS ON REGULATION:
Political scientists and human rights activists and lawyers have called for the addition of a “quasi-combatant” category to treat PMC personnel. Furthermore, an additional allowance of transnational litigation against PMCs in domestic courts of their home countries would be a step in the right direction. Years of negotiation on this accord have resulted in the creation of the International Code of Conduct for Private Security Providers (ICoC). The ICoC Association was launched in September 2013 and is responsible for certifying companies that meet the explicit standards prescribed by them. However, the success of the ICoC is dependent upon the willingness of states to enact corresponding domestic legislation that can provide a system of enforcement. There has been scant effort in this respect.
CONCLUSION
The United States has spearheaded the cause to bring to book perpetrators of crimes committed during armed conflict abroad; amendments have been made to the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code for Military Justice to subject private contractors to the system of court martial. However, a global and substantive approach to regulation must be adopted and, subsequently, an adequate enforcement mechanism must be ensured in order to effectively regulate the activities of private military companies.
BIBLIOGRAPHY
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Filed under: Academic Year 2015 - 2016 
