Mercenaries in Iraq could be consideredunlawful combatants.
As the Bush administration deals with the fallout from the recent killings of civilians by private security firms in Iraq, some officials are asking whether the contractors could be considered unlawful combatants under international agreements.
The question is an outgrowth of federal reviews of the shootings, in part because the U.S. officials want to determine whether the administration could be accused of treaty violations that could fuel an international outcry.
But the issue also holds practical and political implications for the administration’s war effort and the image of the U.S. abroad.
If U.S. officials conclude that the use of guards is a potential violation, they may have to limit guards’ tasks in war zones, which could leave more work for the already overstretched military.
Unresolved questions are likely to touch off new criticism of Bush’s conduct of the unpopular Iraq war, especially given the broad definition of unlawful combatants the president has used in justifying his detention policies at Guantanamo Bay, Cuba.
The designation of lawful and unlawful combatants is set out in the Geneva Convention.Lawful combatants are nonmilitary personnel who operate under their military’s chain of command. Others may carry weapons in a war zone but may not use offensive force. Under the international agreements, they may only defend themselves.
Lawyers at the Justice Department are skeptical that the contractors could be considered unlawful combatants, but some in the State and Defense departments think the contractors in Iraq could be vulnerable to claims that their actions make them unlawful combatants.
If so, some experts say, the U.S. would have to pull them out of the war zone.
Legal experts widely agree that private contractors are allowed to use force to defend themselves. But the threshold between defensive and offensive force is ill-defined.
“In terms of these private military contractors, it really is, legally speaking, very convoluted,” said the senior Defense official. “It is always true that people can defend themselves. The question then becomes: At what point does a contractor who is providing defensive security go beyond that?”
For a guard who is only allowed to use defensive force, killing civilians violates the law of war, said Michael N. Schmitt, a professor of international law at the Naval War College and a former Air Force lawyer. “It is a war crime to kill civilians unlawfully in an armed conflict,” he said.
If the contractors were the aggressors in an incident, they could be deemed to be unlawfully using offensive force, said Scott Silliman, a retired Air Force lawyer and now a professor at Duke University. He said they could claim self-defense only if they had been fired on.
“The only force they can use is defensive force,” Silliman said. “But we may be seeing some instances where contractors are using offensive force, which in my judgment would be unlawful.”
U.S. officials have described many of the suspected Al Qaeda and Taliban affiliates it holds at Guantanamo Bay as unlawful combatants either for taking part in hostilities against the United States or by supporting the hostilities while not part of a nation’s military.
By that standard, some of the private guards in Iraq and Afghanistan also could be seen as unlawful combatants, particularly if they have taken offensive action against unarmed civilians, experts said.
“If we hire people and direct them to perform activities that are direct participation in hostilities, then at least by the Guantanamo standard, that is a war crime,” Schmitt said.