Professional Military Firms under International Law

I. INTRODUCTION On July 18, 2006, four employees of Triple Canopy, an American securityprovision contract firm, embarked on the dangerous convoy route in downtown Baghdad colloquially known as "Route Irish." Their assignment was to escort an employee of the military-service provision firm KBR, Inc. from the Baghdad International Airport to the relative security of the Green Zone.1 According to statements made by three of the Triple Canopy employees, during the trip to the airport, the fourth contractor, who had previously commented that he "wanted to kill someone today," opened fire on a presumably civilian truck that was approaching the contractor's convoy at an unthreateningly low speed.2 The contractors made no effort to determine whether any civilians were injured in the incident, but proceeded to the airport to meet the arriving KBR executive. On the return trip to the Green Zone, some of the Triple Canopy contractors noticed an ambulance at the scene of the earlier shooting; the same contractors claim that the employee that fired on the truck ordered them not to mention the incident to anyone.3 Furthermore, rather than stop to determine what damage had been caused in the previous incident, the convoy continued toward its destination at high speed. Further along Route Irish, the convoy overtook a civilian taxi, which was traveling at "a normal speed" and was not "any danger" to the convoy. According to witnesses, the contractor involved in the earlier incident commented, "I've never shot anyone with my pistol before," and proceeded to fire several shots into the taxi's windshield. Although the members of the convoy were unable to tell whether the driver of the taxi-a man they described as "in his 60's or 70's"-was injured, one later recalled that the taxi came to an abrupt stop.4 Some of the contractors later heard that the cab driver had been killed.5 At various points over the next several days, the three Triple Canopy contractors not responsible for the shootings came forward to their employer about the incidents. While Triple Canopy fired two of these men-in addition to the contractor accused of the shootings-for failing to report the incidents in a timely fashion and notified the United States military about the incident, no criminal charges have been brought in the case.6 This incident-and numerous others like it-illustrates the confusing place that firms like Triple Canopy occupy within the law of armed conflict. Had the acts described above been committed by members of the American armed forces, the individuals involved could have been prosecuted for violations of both domestic military law7 and international law.8 Furthermore, if the attacks had been conducted with the knowledge and tacit or explicit approval of the soldiers' superiors, those supervisors could have been tried for war crimes, as defined under Article 85 of the Protocol I Additional to the Geneva Conventions ("Protocol I")9 and Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court.10 Since the individuals responsible were the employees of a Professional Military Firm ("PMF"), however, the extent of their criminal liability was unclear. Although the United States has recently brought civilian contractors under the jurisdiction of the Uniform Code of Military Justice ("UCMJ"),11 their status under international treaty law remains uncertain. Protocol I and the Third Geneva Convention suggest four legal categories into which such contractors may fall: armed civilians, mercenaries, contractors accompanying the armed forces, or combatants subordinate to Parties to a conflict. This Article reviews each of these possibilities and concludes that, due to the language and history of these conventions, the evolution of warfare, and prudential reasons of state policy, only the last possible classification-that armed contractors are Party combatants for purposes of international law-is a reasonable interpretation of international law. …