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America's Own Unlawful 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 issues surrounding the private security contractors are being examined by lawyers at the departments of State, Defense and Justice. Disagreements about the contractors' status exist between agencies and within the Pentagon itself.
"I think it is an unresolved issue that needs to be addressed," said a senior Defense Department official who spoke on condition of anonymity because he was not authorized to discuss the subject. "But if that is in fact the case, what the heck are we doing?"
The use of private contractors by the U.S. military and governments worldwide began long before the U.S invasions of Afghanistan and Iraq, but it has mushroomed in recent years. With relatively little controversy, contractors have assumed a greater share of support and logistics duties traditionally handled by uniformed military, such as protecting diplomats inside a war zone.
On Sept. 16, a Blackwater USA security team guarding U.S. diplomats was involved in a shooting that killed as many as 17 Iraqis. Blackwater said its personnel were under attack, but Iraqis said the team began the shooting.
Other incidents portraying the private guards as aggressive and heavily armed have since come to light.
The guards also operate under immunity from Iraqi law -- immunity was granted in 2004 by U.S. officials -- and in a murky status with respect to American laws.
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.
The amount of force being used in Iraq by security firms like Blackwater has raised questions.
The United States already has faced international criticism about its interrogation techniques and detention procedures, and charges that such practices do not adhere to international treaties. It was the government lawyers involved in those matters who first raised questions about the legal status of the private security contractors under Geneva Convention provisions.
But there is debate among those studying the question. 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?"
Interpretations also vary in academic circles, where the issue has been the subject of articles and discussions.
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."
Some current Defense Department lawyers think that interpretation is too restrictive. Like soldiers, the security guards should be able to defend themselves if they detect "hostile intent," said the Defense official.
But the guards often participate in operations where the line between defensive and offensive force is hard to determine, such as escorting a diplomat through a neighborhood in a war zone, as many frequently do.
Those operations may be best left to the military, some experts said.
"To what extent is it appropriate to have people not in the chain of command under the president of the United States involved in the application of force?" the official asked.
Any doubt on the legal status of the contractors is likely to open the United States to further criticism from the international community.
John Hutson, a former top Navy lawyer, said he did not consider contractors to be unlawful combatants.
But that will be a difficult argument for U.S. officials to make, he emphasized.
"We are going to be hard-pressed to draw a distinction between the guys in Blackwater carrying automatic weapons and the bad guys setting bombs along the side of the road," said Hutson, now dean of Franklin Pierce Law Center in New Hampshire.
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.
The 2004 immunity measure prevents Iraq from prosecuting private guards under Iraqi law. But some international law experts think Iraq could use international treaties to try contractors for killing civilians.
For now, such trials are considered unlikely, especially because the Iraqi government does not have the contractors in custody.
Many of the current and former federal officials think the administration has an obligation under the Geneva Convention to clarify the contractors' status. Some are perplexed that the Bush administration did not resolve these issues -- or at least discuss them more thoroughly -- before putting contractors on such a complex battlefield.
"It's confusing," Silliman said. "And a lot of us are wondering why the Department of Defense pushed them into core military roles."
© 2007 The Los Angeles Times
12 Comments so far
Show AllThe war was illegal. All US combatants are unlawful combatants. The only legitimate combatants are the insurgents and sectarians that are attempting to establish sovereignty by throwing off an unwanted and illegal foreign occupier and its ineffective and corrupt client government.
No one outside the USA sees the concept of "unlawful combatants" as anything other than an attempt to circumvent the Geneva Conventions. Any attempt by iraq or anyone else to define these mercenaries as "unlawful combatants" surely runs the risk of confirming the USA's use of the concept as setting a valid precedent. Just treat them as civilians answerable to wahtever laws are already applicable. That is how the British government has always dealt with paramilitary organisations such as the IRA.
BS from the LA Times. This is supposed to distract you.
Of course, the key unanswered question is who will make the legal decision as to whether or not they are 'unlawful combatants'. The answer is of course the Bush Administration. Gee, I wonder how they'll decide this one? While you are debating this little point, mercenaries will kill more people, and we'll start a war with Iran. Then your head will be spinning with legal definitions of 'unlawful combatant' and you'll just tune out and watch football instead. Then the LA Times will have done its corporate duty in laying a smoke screen over this.
I keep typing this, but read Naomi Klein's book. The short version of the thesis is this. First, capitalism got rich by exploiting the frontier regions. Then, after that they discovered the way to get rich by stealing what had been built by the people for the people during the era of governements that ranged from socialist to social democrat. So they'd steal the public infrastructure and nationalized industries from that era.
After that was largely grabbed up, now they've turned their attention to what could be called the 'core' of what's left of the state. Basic functions of the state like policing, prisons and the military. Now these are privatized and have also become new profit centers.
That's the reason we now have these mercenaries (you can spot the corporate suck-ups by watching who calls them 'contractors' or 'agents') on the battlefield. Its pure profit for those back at Corporate HQ and the shareholders.
COMarc,
Sounds good, but I'd have started the thesis earlier than the frontier. That's the American experience. By frontier you really mean "some under-exploited resource". For instance, lumber, cotton, gold, sugar, fur, etc. But capitalism didn't just appear out of the blue when Columbus "discovered" America.
Proto-capitalism, beyond any doubt, traces its roots into the murky past in which warlords would demand tribute, forcibly control real estate, enjoy the power to evict (displace populations), etc. If you think about it carefully, modern capitalism and feudal (and pre-feudal) warlording really have more in common than we'd like to admit. Mainly, we just call things by different names.
COMarc, Paul Bramscher,
You are correct. More than 40 years ago, Noam Chomsky and other linguists determined that the use of language to distort, confuse, obfuscate, was in danger of destroying all that the United States supposedly stood for. Then Barry Goldwater happened. The past is what happened, and history is what people wrote about it. More language, more naming, and it all ends with Bush & Co.
It's an illegal war. Bush and his cronies are war criminals. Approximately 1.2 million Iraqis have died in our pointless, brutal, savage war. (golly, what if the numbers are inaccurate, and it's only 500,000? uh...how many of those are women? children? non combatants? what about the Iraqis wounded? the traumatized?) The Blackwater employees are murderous mercenaries. Didn't the British use Hessians as mercenaries when they occupied their colonies? What in the name of heaven gives us the right to grant immunity to the Blackwater folks while they murder innocent people for pay in a foreign land? The L.A. Times just does not get the point. So much printed matter in the media just dances all around the point. "Unlawful combatants" ?!? In other words, the Blackwater folks are terrorists, I'd say. Don't discuss the actions of people that are operating from an evil premise as if they were operating under the rule of law. Bush and his cronies are ready, willing, and able to sacrifice innocent people's lives for their evil purposes. Why would anyone be shocked at the actions of Blackwater?
Hey John Boy!
(John Hutson, a former top Navy lawyer, said he did not consider contractors to be unlawful combatants)
If they fall under NO law, then they are unlawful. See my pinky, see my thumb, see my piece sign minus one. Boy are you a freakin stupid one!
Coffeelover,,,,,,
Yes, Yes, Yes to all the commentors! Right on and this article, just as many of the ones reprinted here whose origins are the corporate media, is chocked full of distractions, misinformation and redirections. Thanks to all for pointing many out.
I feel the first comment bares repeating:
"The war was illegal. All US combatants are unlawful combatants. The only legitimate combatants are the insurgents and sectarians that are attempting to establish sovereignty by throwing off an unwanted and illegal foreign occupier and its ineffective and corrupt client government."
I lean toward a dialog that explores the grounds for a new party. I have been calling it the Purple Party to make the point that it is a little blue a little red. We need to depict a vital modern technologically advanced world economy based on democratic principles. A Democratic Capitalism that holds a minimum requirement of non exploitation of no oppression. More criticism is needed yet we also need images of a future that is attainable.
Any military action that is not supported by the population actually providing the troops from their own numbers and the money from their own wallets is certainly wrong.
If the population does support the military action they could still be wrong.
But if mercenaries are required the military action is certainly wrong.
This is why empires propped up by mercenaries soon crash. The means as well as the ends are critical.
Blackwater is in Iraq for a mixture of reasons: the Bushies can't recruit enough military to do all the jobs so they need someone else, the neo-cons worship the great god Corporation, and corporations are trusted more than the military to carry out the neo-con mission, and Bush/Cheney want to reward their cronies with lucrative contracts.
Blackwater employees are not entitled to any diplomatic immunity, nor are they exempt from any local laws in the region. Some of them are Jason Bourne wannabes who have seen too many action movies. Let's hope that when the new administration takes office, one of the early orders of business will be to cancel any contracts for so-called security work with companies like Blackwater. Security for US diplomats and officials overseas is a mission of the Marine Corps, whose people have the training, discipline, and ethics so lacking in Blackwater.
And it's going to get worse when they come home doing the same thing..... subcontracting for your highway patrol and your sherrif.
why not?
Any pie the neoconartist can get his fingers in is profit, isn't it?
Nightmare Police State.
That is where we are headed if we don't do something right now.
I enjoyed the discussion with regard to the similarities between modern capitalists and warlords of bygone eras. Certainly Blackwater brings to mind the private armies of times past.
What has not changed is that the powerful bully their way into acquiring far more resources and benefits than most of the population. What has changed is the level of technology, including technologies related to information accumulation and dissemination, and the level of societal organization. Benefits were perceived, by the elites, to be in the offing in instituting a set of laws, at some level of civilization (level of civilization being a function of level of technology and social organization). A set of laws was reasonably expected to lead to a more secure, efficient, and productive economy with more devoted and enthusiastic participants, thus producing a bigger pie that the bullies would have a large slice of. And, with similar reasoning, at a higher level of civilization, more benefits were perceived to follow from creating a widespread belief, and expectation, that all were equal before the law.
With regard to capitalism, one finds a wealth of literature and argumentation used to convince the non-elites (non-bullies) in the system that it is consistent with the expectation that all are equal before the law, even though some appear to be much more equal than others (elites having their cake -- bigger more efficient economy -- and eating it too -- still getting their bigger slices).
So now the bullies (or warlords) who would claim virtually all resources for themselves have to deal with a population that has expectations of equal treatment and has the potential to develop a much greater awareness than any population in the past. Such bullies have so far successfully used the high-tech tools of television and radio to tame the population and further their agenda, but the more clever of their number must know they have a tiger by the tail (the rest of us), and they better hurry in building a cage (using high technology) before they get eaten.