On January 15, 2009, the Department of Defense (DoD) issued a final rule implementing requirements to prevent violations of the law of war by contractor employees accompanying the U.S. Armed Forces overseas. See 74 Fed. Reg. 2418 (Jan. 15, 2009), available at http://edocket.access.gpo.gov/2009/pdf/E9-680.pdf. As defined in the Department of Defense FAR Supplement (DFARS) 252.225-7040(a), “law of war” means “that part of international law that regulates the conduct of armed hostilities” and encompasses “all international law for the conduct of hostilities binding on the United States or its individual citizens . . . ,” including treaty obligations and customary international law. The final rule is intended to track and implement the policy in DoD Directive 2311.01E, DoD Law of War Program, dated May 9, 2006. It adds requirements for training on the law of war and amends the clause DFARS 252.225-7040, Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States, to require disclosure of suspected law of war violations.
Specifically, DFARS 225.7402-4 provides that all contractor personnel authorized to accompany the U.S. Forces outside the United States must receive “basic” law of war training to be provided generally through a military-run training center. While some commenting parties requested the ability to substitute web-based training, the commentary and final rule provide that web-based training in lieu of live training is permissible only if the contracting officer authorizes use of an alternative basic training source and the servicing DoD legal advisor concurs with the course content.
Private security contractors, security guards in or near areas of military operations, interrogators, linguists, interpreters, guards, report writers, information technology technicians or others who will come into contact with enemy prisoners of war, civilian internees, retained persons, or other detainees as well as any other contractor personnel when deemed necessary by the contracting officer must obtain “advanced” law of war training. If contractor personnel will be required to have advanced law of war training, the contract must specify those personnel requiring such training as well as whether the Government or contractor will provide the training. The commentary accompanying the final rule states that in all circumstances, government counsel must review advanced training content to ensure that it is commensurate with the duties of the contractor personnel to be trained.
In addition, DoD amended the clause in DFARS 252.225-7040 to require contractors with personnel authorized to accompany the U.S. Forces overseas to “institute and implement an effective program to prevent violations of the law of war” by both employees and subcontractors. This program includes ensuring that deploying employees receive either “basic” or “advanced” law of war training, as appropriate, prior to deployment.
Furthermore, the clause in DFARS 252.225-7040 requires contractor personnel to report “any suspected or alleged conduct for which there is credible information that such conduct (i) [c]onstitutes a violation of the law of war; or (ii) [o]ccurred during any other military operations and would constitute a violation of the law of war if it occurred during an armed conflict.” These reports are to be made to the Combatant Commander or designee and, in response to comments suggesting that DoD include additional channels for reporting, can be made “through other channels such as the military police, a judge advocate, or an inspector general . . . .”
As a result of this final rule, contractors with employees authorized to accompany the U.S. Armed Forces overseas have additional training requirements that must be completed before such employees deploy. Moreover, in addition to other mandatory disclosure obligations recently added to the Federal Acquisition Regulation (FAR), see 73 Fed. Reg. 67064 (Nov. 12, 2008), contractors with deployed personnel accompanying the U.S. Forces overseas should be aware of the additional obligation to disclose suspected or alleged law of war violations. The final rule is effective January 15, 2009.