Monday, July 28, 2008

Resource: Article on Military Contractor Status in Law of War (by a CAAF clerk)

While I am loathe to take off the top of CAAFlog one of the most entertaining posts CAAFlog has written, I wanted to add a note about an article by a current CAAF law clerk that caught my attention this weekend. The article has a good treatment of the effects, or potential effects, of the recent UCMJ amendment discussed (I won't pile on the heres) on this site. The article, titled Professional Military Firms under International Law, 9 Chi. J. Int'l L. 213 (2008), by Richard Morgan, does not appear to be available for free on-line. However, if the author is a CAAFlog reader, and can procure a copy for re-publication, we would be glad to link to it or host it on Feel free to contact me at my CAAFlog email address.

The article's thesis is that private military firm employees, a nuanced definition you will have to read the article to fully place in context, should be classified as subordinate to US armed forces and treated as combatants. While I have only read the article once, I wonder how much the author has delved into the ability of US military commanders to supervise and adequately train private military firm employees of non-DoD agencies, which are prevalent in Iraq and elsewhere. A few thoughts that came to mind (written in a style some may recognize as reminiscent of a certain frequent brief writer at the CCAs and CAAF):

While I don't pretend to be a law of war expert, would military commanders really have the ability to supervise the activities and training of Dept. of XYZ security forces as they would be required to under the Geneva Conventions in such a regime? Also, what changes would need to be made in the uniforms, vehicles, ammunition, etc. of non-DoD PMF employees to enable them to comply with the requirements of being combatants?

The US military might already have enough to do without this added burden, in addition to the burden already created by the extension of UCMJ jurisdiction to DoD contractors. I also wonder whether the use of force in self defense by PMF employees in places like Iraq really has the consequences suggested under international law that the author suggests, or whether every contractor (PMF or not) retains the right to self defense? [UPDATED: My last entry sounded like I was patting myself on the back. Not what I meant. I was attempting to give a shout out to the author. Let me try again.] I think Mr. Morgan's article wasn't focused on these questions, so this is not a criticism. To the contrary, the article gives an interesting proposal and some food for thought. A nice piece of writing on this topic, and very provocative, Mr. Morgan.

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