Iraq War: Were the "civilian contractors" killed in Fallujah mercenaries?

I've expressed concern in earlier posts about the increasing use of PMCs (private military corporations) as mercenaries, including to guard even key American personnel and offices in Iraq.  I also defended Daily Kos in some of his controversial comments about the killings of the "civilian contractors" in Fallujah.

I still stand by the substance of those comments.  But George Paine of Warblogging, a consistent critic and opponent of the Iraq War, has raised a valuable point in this post of April 3 about the use of the term "mercenaries."

Paine cites the Geneva Conventions Protocol III.II.47.2 as providing six criteria for determining whether a combatant can be considered a mercenary.  One of them is that the person "is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict." And the four civilians killed and mutilated week before last in Fallujah are now reported to be Americans.  Paine appears to be correct: those civilians cannot be considered mercenaries under international law.

Now, I don't take the same dismissive attitude toward international law as the Republican candidate for President does.  So it's probably not appropriate to call those particular PMCers "mercenaries."  Although, something like "semi-mercenaries" is probably a much better description than "civilian contractors" or just "civilians," the latter being particularly misleading.  These guys were combatants.

The early reports on the Fallujah incident identified the dead civilians as three men and a woman, only one of whom was an American.  Now they are identified in all news reports as four American men.  I must admit I'm not sure at this point how definitively they've been identified.

I won't try to recap Paine whole post here.  But he raises some very good questions about for whom these semi-mercs were working.  The CIA is a good bet. It just doesn't make sense that the military would keep saying publicly that the assault on Fallujah was a retaliation for that instance if the four were totally unconnected to the US war effort.

And Paine makes it clear that the fact that these four were not legally mercenaries does not make the issues raised by the presence of the "PMCs" any less troubling.  On the contrary:

But the Blackwater employees do share one thing in common with their murderers, and with the men languishing in the cages of Guantanamo Bay: They were illegal combatants.

This is because the Blackwater "security guards" do not wear uniforms clearly identifying them as combatants. They instead wear civilian clothes while engaging in combat. The photograph leading this story [Paine's], of a Blackwater USA security guard serving in L. Paul Bremer's bodyguard force, makes this clear. The man is carrying an assault rifle while wearing civilian clothes.

He is, therefore, an illegal combatant — just like the un-uniformed Afghans and Arabs "detained" at Gitmo.

The question for which Daily Kos took some flak in the blogosphere is still a very relevant one, if we exchange the word "mercenary":  should the US military be putting its lives and possibly its mission on the line to avenge the deaths of semi-mercenary "illegal combatants."

While we're on the subject, "illegal combatant" was a term invented by the Bush Administration to justify not designating the prisoners in Guantanamo as prisoners of war.  "Illegal combatant" is not a term with any particular meaning or status in international law.  And it's pretty clear that, at the bare minimum, the Administration violated its Geneva Convention obligations by not submitting the status of those prisoners to an impartial tribunal to determine their legal status under international law.

I also don't want to leave the impression that Paine's post in any way excuses the use of mercenaries.  Not at all.  He states more clearly than I've seen in any press account, or any other blog post so far:

The status of those killed in Fallujah is extremely important. It is illegal to employ mercenaries in combat, and it is also illegal to work as a mercenary. Further, mercenaries enjoy none of the protections of the Geneva Conventions. They are not entitled to prisoner of war status, and are "not entitled to be a combatant".

Speaking of the military response, Paine also says, " The problem is, however, that the Marine Corps and CENTCOM seem to be approaching the problem of Fallujah as one of regular [conventional] combat, and not counter-insurgency." For some reason, I hadn't been checking Paine's blog the last couple of weeks.  This should teach me not to make that mistake in the future!