Keith Stansell, Marc Gonsalves and Thomas Howes were not the first PMC personnel to find themselves captives of a hostile power.
In 1995 William Barloon and David Daliberti, both civilian employees working for McDonnell Douglas Corp. pursuant to a contract with Kuwait, strayed into Iraq by mistake. They were detained, convicted by an Iraqi court of entering the country illegally and sentenced to eight years in prison.
The principal relevant statutes of international humanitarian law are the 1949 Third Geneva Convention on the treatment of prisoners of war, known as Geneva III, and the First Additional Protocol to the 1949 conventions, which deals with protection of victims of international armed conflicts, known as Geneva Protocol I.
While there is no established legal consensus, employees of PMCs only qualify for protection if they can be brought under the relevant terms of these instruments. That, however, is easier said than done. For example, the applicability of Geneva III to many of the low‐intensity combat situations in which PMCs operate may be questionable, if they are internal conflicts.
Under its Article 2, the protocol applies to all cases of declared war or of any other armed conflict that may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. That was not the case in Colombia. Nor, for that matter, is it the case in Iraq.
Furthermore, some lawyers feel there are two relevant conditions that need to be satisfied. First is that the level of disturbance required by the phrase “armed conflict” goes beyond, for example, sporadic banditry or riot and requires a rebel force that has coherence and significant scale in terms of its own organization and operations.
Second, two State Parties must be involved, so that a purely internal rebellion, rather than an international conflict, does not qualify. Only when those conditions are satisfied can contractors employed by one of the State Parties be eligible as a “militia” forming part of the armed forces of the state under Article 4. Other state‐contracted PMC personnel also might fall within Article 4 as “persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces; provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card.”
However, some lawyers argue that Geneva Protocol I excludes contractors, as it confers POW status on “combatants.” And combatants are defined as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” That would exclude, for example, security contractors in Iraq who are protecting U.S. State Department personnel.
Generally, with certain exceptions, private military contractors do not work directly for the United States, but rather for third parties. For contractor employees, command and control are tied to the terms and conditions of the government contract. Contractor employees are not under the direct supervision of military personnel in the chain of command.
The lack of command over contract employees effectively bars them from being declared lawful combatants.
Private contractors do not wear uniforms denoting combatant status, seldom fall under the formal command of military personnel and generally lie beyond the reach of military discipline that the armed forces use to enforce adherence to the “laws and customs of war” — although the law passed in 2006 making contractors subject to the authority of the Uniform Code of Military Justice may change that, it would be a stretch to style them as members of the armed forces.
And something seemingly simple, like wearing uniforms, also can be confusing. In past years both the Army and the Air Force indicated that contractors should not wear military uniforms. Contractors’ policies on wearing uniforms can be as varied as military guidelines.
At one point, DynCorp seemed to consider the wearing of uniforms by its personnel as one of the keys to success. On the other hand, its employees in Colombia appear to dress less formally. Another major contractor, KBR, prohibited its employees from wearing “military garb” so as to avoid confusion.
In short, the Geneva Conventions’ rules affect only national government authorities or sizable, organized and sustained insurgency forces that are clearly recognized and capable of acting in accordance with international humanitarian law. For private contractors, the problems relate to scope and applicability, with many situations in which PMCs are operative likely to be treated as wholly internal matters not reaching the level of international law and with gray areas relating to the status of those who provide non‐combat support services.
Simply put, those who participate in hostilities without the status of lawful combatant do not benefit from prisoner‐of‐war protections. And while private military contractors are clearly not civilians, in most cases they are not considered lawful combatants.
Of course, if one is dealing with people who don’t respect international law, the difference between lawful combatants and those who aren’t may not matter much. But for contractors still being held prisoner, such as the five British hostages kidnapped 14 months ago in Iraq, an IT consultant and four bodyguards, two of them employed by Canadian security firm Garda World, the fact that they may not be considered lawful combatants entitled to POW status makes their situation even worse.