[Peace-discuss] Blackwater - unlawful combatants?

[Barbara kessel]

America's Own Unlawful Combatants?
    By Julian E. Barnes
    The Los Angeles Times

    Monday 15 October 2007

Using private guards in Iraq could expose the US to accusations of
treaty violations, some experts think.
    Washington - 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."