The House Judiciary Report at Recommendation 31 at 290 of 487 suggests there is a gap in US statute authority to hold contractors accountable.

This is irrelevant. The United States has legal power under international law to prosecute US civilians, as was done at Nuremberg. There is no relevant gap under international law to hold civilian contractors accountable during wartime.

The US government must explain why the US government, as required by Geneva, will not apply the Nuremberg precedents to all persons making a substantial contribution to combat operations or working in a combat zone.

Establishing Connection Between US Contractors and Geneva

Here is the 2004 DOJ OLC memo arguing the Geneva Conventions apply to US combat operations in Iraq. The President relied on international law to -- rightly or wrongly -- justify US combat operations in Iraq.  It cannot be argued that international law, including US obligations through Nuremberg precedents and Geneva, do not apply to all personnel -- including civilian contractors -- under control of the President. The US President used combat forces to free a detained contractor. 

Here is an illustration of the Congressional understanding of the connection between Geneva, Iraq, and US contractors [emphasis addded]:

Senate Budget Report: The Laws of Armed Conflict (LOAC), primarily as embodied in the Third and Fourth Geneva Conventions, govern the status and treatment of people who come under the control of enemy forces engaged in a declared war or other armed conflict.42 U.S. policy is to follow those laws even in cases in which they may not apply, but enemy forces, such as the insurgency forces in Iraq, might not follow them (DoD 2006a).43 Thus, even if DoD contractor personnel in Iraq qualified for protection under the LOAC, they might not receive it.

Regardless foreign power action or inaction, there is nothing stopping the US from asserting international law. Rather, it could be argued that inaction in applying Nuremberg could be a war crime.

There were discussions in 2005 on the relationhip between US contractors in Iraq and the Geneva Conventions [emphasis added]:

35 of 40: Parks, W. Hays. 2005. "Evolution of Policy and Law Concerning the Role of Civilians and Civilian Contractors Accompanying the Armed Forces." Summary of a presentation at the Third Meeting of Experts on direct participation in hostilities, Geneva, October 25.

Geneva Protections Attach Responsibilities, Accountability

The budget committee report reminds us that US civilian contractors enjoy POW protections under Geneva, establishing a link between the laws of war, Geneva, US treaty obligations, the oath of office, Iraq, and US contractors:

29 of 40: Prisoner-of-War Status. Under the Laws of Armed Conflict, primarily as embodied in the Third Geneva Convention, the highest level of protection given to people who come under the control of enemy forces while engaged in a declared war or other armed conflict is called prisoner-of-war (POW) status. Uniformed military personnel, government civilians, and contractor personnel can all qualify for POW status under some conditions.

The contractors are eligibility for Geneva protections. They are also, by implication, subject to accountability under Geneva, Nuremberg precedents regardless the holes in the US Statutes.

It may be true the US has signed an "immunity" agreement with the Iraqis to ensure that US contractors are not handed over to the ICC. But this does not mean the US is barred from prosecuting US contractors under international law.

There may be gaps in the US statutes, but there are ways to hold the contractors accountable. Even if we consider the exclusions of the Military Extraterritorial Jurisdiction Act of 2000 32 of 40, the Geneva Conventions could be used by any detaining power -- including the US, outside the ICC -- to prosecute US contractors working in Iraq.

Some might suggest as CRS does at 21 of 60 that "uncertainty" about their legal status depends on whether the Iraqi law is or isn't applied. This is interesting, but does not address the question: "If one set of rules does not apply, or another set of rules has gaps, which rules do apply to ensure civilized conduct?"

One possible answer: The Nuremberg precedents. Regardless, it cannot be argued that, "No rules apply, and nothing can be done." That is lawlessness.

The US, as a signatory to Geneva, has a legal obligation to ensure Geneva -- at a minimum -- is applied. The United States -- if it is not willing to turn the contractors over to the ICC, or work with the Iraqi government to enforce the law -- must take the responsibility to prosecute the contractors under international law.

Even if we pretend the US government "cannot" prosecute US contractors, the US government is hard pressed to explain why it might consider the challenge of enforcing contractor protections [emphasis added]:

54 of 60: To the extent that private companies are perceived as participating in combat operations, it may be difficult for the United States to persuade other states to recognize contractors' rights to protection under the Geneva Conventions.

The absurdity of the House Judiciary finding is the United States President deployed civilian contractors on the back of an AUMF, but we're asked to believe the are no US statutes which govern how those lawfully deployed civilians are regulated. This argument contradicts the President's position linking the AUMF to warrantless FISA surveillance during wartime.

The White House-DOJ OLC legal counsel supposedly relied on the AUMF to justify warrantless surveillance. The President is hard pressed to explain what the AUMF opening the door to "lawful use of warrantless surveillance" to support combat operations in Iraq would not be good enough to hold contractors accountable while deployed in support of the same combat operations.

Once lawfully deployed through the AUMF, this lawful deployment would by implication attach to the civilian contractors the Presidentially-understood Geneva obligations and protections. If the contractors are upset that they are behign held accountable under international law, their legal counsel should discuss their concerns with the White Hosue counsel who opened the door to this accountability.

The House Judiciary Report has fallen into the trap of embracing a faulty Executive Branch assumption, and getting distracted. The absurd implication of the "gap" is the prospect US contractors are "not" subject to any legal oversight or accountability.  Under the norms of civilized behavior, this defies reason. Personnel must be subject to some legal standards, otherwise they are barbarians.

In practice, it might be true that US statutes are inadequate to hold contractors accountable, but this does not address the existing requirements of contractors to comply with all legal requirements, including treaty obligations and the Geneva Conventions. Indeed, it is a subsequent offense under Geneva for a signatory power to not pass legislation to enforce the Geneva Conventions.

US contractors sign contracts with the US government. The US government's contracts must be lawful, consistent with Geneva.

Once Contractors enter a combat zone they are denied some protections afforded to civilians. By their nature, contractors engaged in combat-support activity are not passive, peaceful persons, but making a substantial contribution to combat. As we've seen in Gaza, a material contribution to combat strips a civilian of their protected status, and they become a legitimate military target.

Because of this risk of exposure to combat, some civilians are authorized to carry weapons, or enjoy specific military protections. Once they take up arms, the civilians cannot have it both ways: Enjoying protections of Geneva, but not falling under Geneva for purposes of holding the civilian accountable for illegal activity.

The US argument reverses the equation and would have us believe that "non-mlitary" personnel are not regulated; and there are no consequences for their misdeeds in a combat zone.  However, the President's legal counsel took the opposite approach, arguing the Taliban 13 of 37 were subject to adverse consequences because they were not regulated by a code of ethics, nor subject to command authority or regulations.

The President's position on the Taliban -- rightly or wrongly -- presents another problem for the contractors. If counsel argues the US contractors are "not" subject to legal regulation or lawful authority as required under Geneva to preserve their protections, this might strip the contractors of some Geneva protections. Arguably, using this approach, the US is not barred from prosecuting the contractors.

The above opens the door to their prosecution not immunity. Arguably, once a non-protected civilian in a combat zone assaults a protected civilian, this is not just an assault, but a war crime.

The question is where and under what circumstances. As a defense, the contractors could argue the US could not move the contractors from the combat zone because this would violate Geneva.

Conclusion

The House Judiciary Committee may be correct in that there are gaps in the US statutes covering contractor activity in a foreign  combat zone. However, the  House has not addressed why the United States, as a signatory of Geneva, did not apply the precedents of Nuremberg and prosecute US contractors allegedly complicit with illegal activity in Iraq under international law and Nuremberg precedents.

The US inaction relates to the ease with which Members of Congress are induced to believe the "new way of war" has created "problems for oversight" and "an inability to ensure accountability." The Congressional leadership is spineless in ensuring the Geneva Conventions and Nuremberg precedents are applied to all civilians, not just contractors in Iraq but alleged war criminals working on the White House legal counsel staff.

Nuremberg found that it was a subsequent offense when policy makers refuse to enforce the Geneva Conventions. The American government divides policy making power and responsibility between the executive and legislative branches. Congress refuses to recognize the power of Nuremberg precedents to hold US contractors accountable because this would open the door to applying Nuremberg to Members of Congress.

The House Judiciary report is part of the smokescreen to induce the public to believe nothing can be done, and the problem is elsewhere. It is part of a plan to insulate Members of Congress and not hold civilians accountable for illegal activity during wartime.