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commander, others have made somewhat similar, though not identical, recommendations. 53
Additional comments on this will be made in the next section.
Some contractor personnel may believe they are subject to the military chain of
command. Others may act as if they were subject to the military chain of command. This may
mask inadequacies in combat support contracting policy. It does not, however, meet the
requirements of international law should contractor personnel participate directly in combat.
Contractor personnel are deployed to zones of conflict to operate and maintain
sophisticated weapons systems. Others are sent as security guards either to protect
government assets or as “force protection” for contractors performing other functions. Others
who are contracted to perform only mundane tasks are authorized to carry side arms. These
and other categories of contractor personnel may, and have, directly participated in combat. The
implications of this flow not only to the individuals involved but to the United States as party to
international agreements and LOAC generally, the theater commander, and the companies of
the employees involved.
The combination of armed contractors engaging in hostilities, (either pursuant to, or
contrary to, authoritative direction) and a military commander in charge of an operational area
but not in direct control of contractor personnel has grave implications. LOAC presupposes that
violations of the laws of war will be avoided through the control of military commanders that are
responsible for their subordinates. When members of a military force violate the laws of war and
their theater commander is charged with their crimes, it is no defense for the commander to
assert he did not have actual control of his troops. 54 It is not hard to envisage this principle being
extended to the control of contractors that are being utilized as a substitute for, or to augment, a
deployed military force.
The United States of America may be tarred internationally by the actions of contractors
it has sent to a combat zone. A theater commander and his subordinates may be held criminally
liable for the actions of contractor personnel in their area of responsibility. 55 Companies face
civil or criminal jeopardy for the acts of their employees. 56 One person most unlikely to be
subject to criminal sanctions for contractor misconduct is the contracting officer!
Given the implications of inadequate theater combat commander control over
contractors and the risks associated with contractors participating in hostilities, one might
predict that these issues would be of paramount concern for policy makers. Since operational
deployments involve war or, at least a threat of hostile action, one would assume that military
53 Douglas. (2004). Contractors accompanying the force: Empowering commanders with emergency
change authority. 31 A.F.L.R. 127; American Bar Association. (2005, October 12). Contractors in the
battle space. Section on Public Contract Law. (Report and letter to Principal Deputy to the Assistant
Secretary of the Army); DoD proposed rule (2004, 23 March). Contractor personnel supporting a force
deployed outside the United States. 69 F.R. 13,500.
54 In re Yamashita, 327 US 1 (1946).
55 Ibid. (see comments in preceding paragraph). Military personnel up to the rank of Brigadier General
were disciplined for misconduct at Abu Ghraib, some of which involved indirect responsibility for actions of
military subordinates and contractor personnel.
56 For example, Nordan v. Blackwater (No. 5:05-CV-48-FL(1), USD.C., E.D.N.C.) wrongful death action
filed against Blackwater Security arising out of incidents at Fallujah, Iraq, in 2004.
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