| Daily Times - Site Edition | Saturday, July 23, 2005 |
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Hired guns walk uneasy legal path
By Peter Apps
Thousands of former soldiers have joined the Private Military Companies (PMCs) that have sprung up to fill the void left by western troops stretched to the limit in Iraq and Afghanistan. But their legal status remains hazy
PRIVATE military contractors in Iraq and parts of Africa must obey international humanitarian law just like regular soldiers, the Red Cross says, but analysts warn enforcement may be difficult.
Thousands of former soldiers have joined the Private Military Companies (PMCs) that have sprung up to fill the void left by Western troops stretched to the limit in Iraq and Afghanistan. But their legal status is hazy.
“Are they combatants or are they civilians?” asked International Committee of the Red Cross (ICRC) legal advisor Emanuela-Chiara Gillard at a recent conference in South Africa on private military firms and ethics.
Whatever the answer, she said private contractors had a duty to obey international humanitarian and human rights law as they could be charged with abuses such as murder, torture and genocide the same as anybody else.
With private contractors manning checkpoints, interrogating prisoners and guarding installations in Iraq and Afghanistan, firms had to train employees - including those with a military background - properly, she said.
Private interrogators have been accused of abuses in Afghanistan and in Iraq’s Abu Ghraib jail.
“They have and need to be aware that they have obligations under the laws of war,” she said. “Obviously their staff need to be aware of international law. They need to be given training, They need to realise their new role is different from being a soldier.”
Iraq and Sierra Leone are the only states to regulate companies operating on their territory but even elsewhere, employees of PMCs - who reject the term “mercenaries” - should not assume they were in a legal vacuum, Gillard said.
Under international law, the ICRC said private military contractors could still be charged with breaches of local law - except in Iraq where they are legally exempt - as well as with murder or crimes against humanity by either their own states, the states where they operate or third party states.
Summary executions: Senior research fellow Richard Cornwell at South Africa’s Institute of Security Studies said enforcement was difficult, particularly as the areas in which private military contractors operated were often lawless.
“Collecting evidence is a big problem,” he said, adding that roughly half of African states used private military companies. “In areas like Africa, Iraq or Afghanistan where the state is very weak, it’s almost impossible to enforce.”
Some countries such as South Africa have made private military activity overseas illegal, charging several suspected mercenaries accused of plotting a coup in oil-producer Equatorial Guinea but so far convicting few.
But for private contractors captured in the course of their duties, the legal picture may be uncomfortably vague.
“Many are just summarily executed,” said Cornwell. In a war between states - but not civil wars - combatants have a right to prisoner or war (POW) status. Hired contractors, even those fighting in uniform, may not.
The ICRC’s Gillard said contractors might be viewed as combatants if they were under military law or direct military command. But in most cases, contractors would not qualify for POW status, she said.
While soldiers cannot be charged for killing adversaries in battle, non-combatants might face charges for murder, manslaughter or simply taking up arms. But they were still accorded some rights under the Geneva Convention, she said, adding they should not be summarily killed and might even be better off. “As a POW you can be held indefinitely until the end of hostilities,” Gillard said. “As an ordinary prisoner, you can only be held to the end of your sentence.” reuters