The 1949, Third Geneva Convention (GCIII) does not recognize the difference between defense contractors and PMCs; it defines a category called supply contractors. If the supply contractor has been issued with a valid identity card from the armed forces which they accompany, they are entitled to be treated as prisoners of war upon capture (GCIII Article 4.1.4). If, however, the contractor engages in combat, he/she can be classified as a mercenary by the captors under the 1997 Protocol I Additional to the Geneva Conventions (Protocol I) Article 47.c, unless falling under an exemption to this clause in Article 47. If captured contractors are found to be mercenaries, they are a unlawful combatants and lose the right to prisoner of war status.
Much of the peacekeeper training the United States provides to Afghan military is done by private firms, and with the increasing absence of Western military support to international peace operations, the private sector is commonly utilized to provide services to peace and stability operations in the south of Afghanistan, mercenaries engages in conventional battles. The Bonn agreement which provides legal ground for presence of international force in Afghanistan is quiet on the issue of mercenaries.
The Uniformed Code of Military Justice does not apply to these contractors in Afghanistan. what law governs their actions? Rumsfeld once answered that Afghanistan has its own domestic laws which he assumed applied to those private military contractors. However, Afghanistan is clearly not currently capable of enforcing its laws, much less against — over foreign military contractors. there is no solution to the issue of bringing illegal combatant under a system of law in Afghanistan today, the US came up with one which has been criticized widely, american government put illegal Afghan illegal combatant in Guantanamo prison and instead sent thousands of American illegal combatant to Afghanistan.
In theory, private contracting creates competitive pressure to reduce costs, but in practice the bidding process can be so opaque and distorted by favoritism that it becomes an empty formality… The financial savings have turned out to be highly debatable. The costs and attendant risks are not. The government’s monopoly of violence — its role as the guarantor of civil peace and the rule of law — has been diluted by the new arrangements. Hiring Afghan police is cheaper, and a better security solution too. the total budget of Afghan armed forces on annual basis is less than the amount of money spent on foreign security contractors in Afghanistan. In most of western countries, national labor statistics indicate that more jobs will be created in the private security field than any other categories over the next decade. The number of private guards are in millions in the west.
Several of these private US military contractors have been accused of having been involved in committing war crimes such as the deaths of Iraqis during interrogation. There is no method of formally trying such people for war crimes.
Its in the benefit of Nato to support proper regulation of the industry because it would dispel a lot of the myths and make the situation much clearer.
It would add clarity to what security contractors can and can’t do and where they stand with regard to the law.