A Korean gonzoku or civilian contractor named Hong Ki-song, also known by his Japanese name Kisei Toyoyama, was one of the most hated guards on the Burma Thailand Railway, and was notorious for beating prisoners of war with the shaft of a golf club. Toyoyama who volunteered for the duty, was sentenced to death by a British military court in Singapore. That sentence was later commuted to life imprisonment. This mug shot was taken by the U.S. army in Sugamo Prison in Tokyo. (U.S. National Archives)

Armed with the latest assault weapons, wearing flak jackets and often dark glasses, and travelling in powerful SUVs with tinted windows, military contractors have become a familiar sight in Iraq, Afghanistan and other trouble spots around the world.

The contractors protect diplomats and other officials, escort convoys, and sometimes act as auxiliary forces for conventional military forces.

Most legal experts are saying, however, that unlike the members of the majority of the world's professional military forces, the private contractors exist and operate in a legal limbo and are not accountable to anyone for their actions. Many even believe they are not subject to military discipline and, if operating in Iraq, apparently not subject to either the laws in Iraq or United States law.

One incident in Iraq, in particular, has raised the issue of who, and which laws, govern the military contractor. On Sept. 16, a wild shooting incident involving contractors employed by one of the largest firms, Blackwater USA, left 17 Iraqis dead and 24 wounded.

Blackwater is best-known for providing bodyguards for American officials, mainly those from the U.S. State Department.

The debate over immunity

So how can independent contractors be controlled?

Most of the current debate centres on national laws. Some countries ban the use of private contractors or forbid their citizens from joining those firms; others have some form of regulation. And most countries just ignore the whole matter.

But the issue is particularly acute for the United States.

After the U.S. invaded Iraq, Paul Bremer, head of the Coalition Provisional Authority, signed an order giving the contractors immunity from Iraqi law.

Now, the Iraqi parliament is now working on ways of bringing contractors under its laws. On Oct. 16, the U.S. House of Representatives passed a bill by a 389-30 margin bringing United States government contractors in Iraq under U.S. law. That bill has not yet been considered by the U.S. Senate and the White House, and some in the Republican party oppose it.

An earlier act, passed in 2000, that made contractors directly working with U.S. troops overseas subject to U.S. criminal law has, according to the New York Times, "rarely been used."

The precedent of Japan

The problem with trying contractors for crimes in other jurisdictions is: whose rules apply?

Lawyers who discuss this issue often look at existing military or civilian law. They say that if a contractor is charged with a crime and appears in a non-military court, all the rules of evidence normally applicable in that court would apply. If, for example, a contractor appeared in U.S. Federal Court, they say it would be difficult to obtain a conviction there for an event that happened in another country. And, if a civilian contractor appeared before a court martial, the lawyers could argue over jurisdiction.

There is, however, an example from a relatively recent era — the years after the Second World War – that could help clarify the issue.

From the 1930s to the defeat in 1945, the Imperial Japanese Army employed thousands of gonzoku, which roughly translates as the now-familiar term "civilian contractor."

After the war, many gonzoku were charged, tried and convicted for war crimes, mainly for the abuse of Allied prisoners of war. That means there are strong precedents that civilian contractors are subject to international humanitarian law and prosecution for war crimes, including murder and crimes against humanity.

A few gonzoku were civilians from Japan, mainly civilian engineers and surveyors who helped with planning and construction. Other gonzoku, mostly from the Japanese-occupied colonies of Korea and Formosa (now Taiwan), were used in construction battalions.

The majority and the most notorious gonzoku were employed guarding Allied prisoners of war across the Japanese empire.

Gonzoku guards wore uniforms similar to the Japanese army uniforms and – unlike contractors in Iraq – were subject to harsh Japanese military discipline. Many prisoners thought the guards were part of the regular Japanese army, and even many post-war accounts assume the guards were from the Japanese military.

In the war crimes trials, however, the gonzoku were always charged as civilians.

And the story of how many of them came to be gonzoku would indicate that many were, in fact, civilians.

Japan set a quota for gonzoku in each region of its colonies. Post-war trial records show that some young Koreans did volunteer for service – eager to fight in any way they could for Japan. But others were chosen by their home village councils to meet the quota, and others picked up off the street by the Japanese army and pressed into service. Each gonzoku signed an individual civilian employment contract with the Japanese army.

A study by Japanese historian Aiko Utsumi of Kiesen Woman's University in Tokyo shows that 7.2 per cent of those convicted of war crimes in the Japanese empire were civilian contractors from Korea and Taiwan.

Of the 984 war criminals sentenced to death after the war, 23 were Korean gonzoku and 21 were from Taiwan.

Of the 148 Korean gonzoku convicted of war crimes, 129 claimed they were conscripts, not volunteers. Scholars, including Utsumi, have raised questions about the how fairly the gonzoku were treated. One problem was that, as those who had most frequent contact with Allied prisoners, they were the most easily identifiable. So gonzoku were often tried and convicted while their commanders never faced a court.

(All current military contractors serving around the world are, of course, volunteers.)

The role of the gonzoku is forgotten by history, even by the United States. That's ironic, since the U.S. not only took charge of all the convicted war criminals from across the Japanese empire, but also ran – until the mid-1950s – the prison in Tokyo that housed them.

It's estimated that between 20,000 and 30,000 private military contractors are working just in Iraq for the U.S. military. There are likely more working in Afghanistan and around the world.

In one report, the New York Times said that in Iraq there has been the "most extensive use of private contractors on the battlefield since Renaissance princes hired private armies."

Although Blackwater USA has the worst reputation, other large U.S. private security firms, such as DynCorp International and Triple Canopy, have also been involved in shooting incidents. The trade organization for military security, the International Peace Operations Associations, lists 42 members. Blackwater withdrew its membership in the organization on Oct. 10, 2007. The somewhat murky industry is reported to be worth $210 billion.

Does the gonzoku precedent mean that security contractors from any nation can be prosecuted under international law? Recent difficulties in prosecuting accused war criminals from the Balkan and African wars show that it is not easy, especially since the United States, which employs the majority of the contractors, opposes the International Criminal Court which is supposed to be enforcing international humanitarian law.

But the gonzoku precedent is clear. There is no legal limbo. A civilian contractor, whether working for the Imperial Japanese Army or Blackwater USA, is subject to the rule of law. All that has to happen is to find a way of prosecuting those who commit crimes.

CBCNews.ca producer Robin Rowland is the author of A River Kwai Story The Sonkrai Tribunal which looks at a trial in Singapore in 1946 that included gonzoku as defendants. It will be published in April 2008 by Allan and Unwin.

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