The killing of four private security contractors in the town of Fallujah on March 31 was the catalyst for an upsurge in fighting in Iraq that has seemed at times like a reopening of hostilities. Both the original incident and much of the combat that has followed have highlighted the role of private contractors in the military occupation of Iraq. According to press reports, military contractors are playing a greater role in Iraq than in any previous conflict – guarding senior officials, escorting convoys carrying supplies like fuel and food, and protecting coalition authority buildings.

Particularly since the upsurge of violence over the last couple of weeks, military contractors are also taking part in combat. According to press reports, commandos from Blackwater Security Consulting fought off an attack on the coalition headquarters in Najaf by hundreds of Iraqi militia members on Sunday April 4. The security firm sent in a privately owned helicopter to resupply the besieged commandos with ammunition and to ferry out a wounded Marine who was fighting side by side with the contractors. In other incidents, security contractors have engaged in protracted firefights to defend their own bases or to protect convoys, killing an unknown number of assailants. Several contractors have been killed, wounded or taken captive.

It has been estimated that there are 20,000 private military contractors in Iraq. Although they work for a number of different firms, the Washington Post has reported that they “have begun to band together…organizing what may effectively be the largest private army in the world, with its own rescue teams and pooled, sensitive intelligence.”

What is the position of these private security forces under international law? The issue of civilians accompanying military forces is not new. Indeed, the outsourcing of military functions has been a growing trend in recent years, fuelled both by the increasing technological specialization of some weapons systems, and by a general movement to contract out support functions in armed forces as in private companies. Similarly, private companies working in occupied territory have in the past used private security firms to protect their offices and other assets.

The essential point about private contractors under international humanitarian law is that they are not combatants: that is, they do not have the right to take part in hostilities. Only members of regular armed forces and paramilitary groups that come under military command and meet specified criteria (like carrying their weapons openly, distinguishing themselves from civilians, and obeying the laws of war) have this right. So one question raised by the presence of military contractors in Iraq is how to draw the line between legitimate support activities or security functions, on the one hand, and taking “a direct part in hostilities” on the other.

Most experts believe that armed contractors can carry out many functions in a zone of occupation without being deemed to be taking part in conflict. According to Col. Charles Garraway, a former officer in the United Kingdom 's Army Legal Services, “private security contractors can act to protect themselves and others without taking a direct part in hostilities.” Similarly, Professor Michael Schmitt of the Marshall Center for Security Studies in Germany told me that “individuals simply maintaining personal security for civilians or general security against traditional crime would not be directly participating any more than police officers do.”

Armed guards working for civilian companies – for instance those doing reconstruction work in Iraq – would not present a problem under normal conditions of occupation. Moreover, these contractors would be entitled to use force in self-defence or to protect the facilities they were guarding, as long as they did so in a defensive manner and employed no more force than was strictly necessary. They would emphatically not be entitled to take part in offensive military actions, or to join in ongoing military engagements involving regular U.S. forces.

Although this distinction between defensive and offensive use of force seems clear on paper, it is easy to see how it might become blurred in practice. First of all, some armed contractors in Iraq are employed directly by U.S. authorities and are protecting assets that are clearly linked to the military side of the occupation. For instance, some private security firms are guarding food or fuel convoys that are intended at least in part to supply the needs of military forces. These convoys would probably qualify as legitimate military targets under the laws of war. Of course, it is not unusual for civilians to be found in sites that are in themselves military targets (for instance, civilian employees of TV stations that are used for military communications). But to have armed civilians defending military targets is getting close to a grey area under the law.

That is particularly true given the conditions that have applied in Iraq during the last two weeks – that is to say, in the face of simultaneous uprisings by Sunni and Shi'ite fighters that have brought some parts of the country close to a state of active hostilities. These Iraqi militias have routinely targeted supply convoys, and have also targeted other sites guarded by private security contractors, notably regional offices of the Coalition Provisional Authority. Although these are civilian not military buildings, they have nevertheless been regularly attacked by Iraqi insurgents as part of a military campaign. They are predictable if not lawful targets. Moreover, in most of these cases, security contractors are either working directly for the governing coalition, or for firms that are themselves on contract to the U.S. government.

The most difficult question posed by the role of contract security forces in Iraq may well be this: is the official use of security contractors to defend legitimate or predictable targets in the face of an organized uprising tantamount to having them engage in hostilities? It seems convincing to believe that it is. Certainly some of the accounts of firefights in which security contractors have engaged during the last couple of weeks read like an account of armed conflict, rather than the suppression of low-level disorder.

The problematic position of these private security contractors would therefore seem to be another reflection of the U.S. government's failure to anticipate or plan for the level of resistance it has encountered on the ground in Iraq. Security contractors might well be an appropriate way to protect coalition facilities and supplies in an occupied country against threats like sporadic disorder or petty crime. They would seem not to be an appropriate way to defend vital assets against repeated and organized armed onslaught.

What are the consequences if civilian security contractors take a direct part in hostilities? Legally, their situation would be analogous to al-Qaeda members who were found on the battlefield in Afghanistan: they would be people participating in armed conflict without the authority to do so – unlawful belligerents or in the description favoured by the U.S. government “unlawful combatants.” As such, they would become legitimate targets for enemy forces, and also theoretically be liable to prosecution for offensive military acts they committed.

In practice, these consequences would probably be insignificant in the context of Iraq. That is because almost all of the insurgents are themselves unlawful fighters, so they would not be entitled to use force even against legitimate targets. Whether the security contractors are legitimate targets is therefore something of an academic question. Moreover, whether or not they were classed as belligerents, security contractors would presumably be entitled to use force in self-defence. They might not therefore be liable to prosecution for using force to repel attacks directed against them or against people they were guarding, which is in practice the most likely occasion on which they would fire their weapons in any case.

Nevertheless, it remains troubling that the United States is putting people into conflict situations whose training, rules of engagement and legal accountability are unclear. According to news reports, coalition authorities and Iraqi officials are now drafting a set of operating rules for private security companies. It seems likely that the guidelines governing the role and use of these private security forces will be clarified before the scheduled handover of power in Iraq at the end of June.

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