Law is clear: Blackwater is not above it
By David Isenberg
In the aftermath of the September 16 shootings of Iraqi civilians in Baghdad by
Blackwater security contractors there has been media frenzy over the role and
activities of private security contractors in Iraq. A common refrain is that
there is no legal accountability concerning contractors. But this is untrue. If
contractors commit crimes and are not punished it is not because there is a
lack of laws; it is because there is a lack of will.
One real problem in regulating private military contractors (PMCs) is their
somewhat ambiguous legal status in regard to existing
international treaties relevant to conflict and war. This is partly because the
whole structure of diplomacy and international recognition rests on the state
as the cornerstone and building block of international law and international
relations. There is no clarity about the exact relationship between governments
and PMCs. In their own interests, governments (and military institutions, such
as the Pentagon) often publicly distance themselves from PMCs.
Rather than PMCs being beyond the law, it is a case of existing international
law being unable to even define a PMC in a consistent way; let alone regulate
the full scope of their activities. It simply is unfair to characterize firms
as being beyond the law when the law can't even define what such firms are.
With respect to Iraq, under the old Coalition Provisional Authority (CPA) there
were various rules and orders regulating PMCs. A CPA Public Notice issued June
26, 2003 laid out the status of contractor personnel, stating:
In
accordance with international law, the CPA, Coalition Forces and the military
and civilian personnel accompanying them, are not subject to local law or the
jurisdiction of local courts. With regard to criminal, civil, administrative or
other legal process, they will remain subject to the exclusive jurisdiction of
the State contributing them to the Coalition. A mechanism exists for this
immunity and jurisdiction to be waived by the State contributing the personnel
to the Coalition at their discretion. Foreign Liaison Missions and their
personnel enjoy immunity from Iraqi legal proceedings, but are subject to the
CPA's jurisdiction. Coalition contractors who are not normally resident in Iraq
may be subject to the CPA's or Iraq's jurisdiction, as authorized by the
Administrator. Additionally, some of the administrative regulations regarding
contractors will not apply to their contracts with the Coalition.
But that was hardly a get out of jail card. It also said:
The
immunities provided will not prevent legal proceedings against Coalition
personnel for unlawful acts they may commit. It simply ensures that such
proceedings will be undertaken in accordance with the laws of the State that
contributed the personnel to the Coalition. Furthermore, the immunity will only
apply to acts or omissions during the authority of the CPA within Iraq.
The CPA also issued Order No 17, which has been cited as granting contractors
blanket immunity. But what the Order actually said was:
Contractors
shall not be subject to Iraqi laws or regulations in matters relating to the
terms and conditions of their Contracts, including licensing and registering
employees, businesses and corporations; provided, however, that Contractors
shall comply with such applicable licensing and registration laws and
regulations if engaging in business or transactions in Iraq other than
Contracts. Notwithstanding any provisions in this Order, Private Security
Companies and their employees operating in Iraq must comply with all CPA
Orders, Regulations, Memoranda, and any implementing instructions or
regulations governing the existence and activities of Private Security
Companies in Iraq, including registration and licensing of weapons and
firearms. Contractors shall be immune from Iraqi legal process with respect to
acts performed by them pursuant to the terms and conditions of a Contract or
any sub-contract thereto. Nothing in this provision shall prohibit MNF
Personnel from preventing acts of serious misconduct by Contractors, or
otherwise temporarily detaining any Contractors who pose a risk of injury to
themselves or others, pending expeditious turnover to the appropriate
authorities of the Sending State. In all such circumstances, the appropriate
senior representative of the Contractor's Sending State in Iraq shall be
notified.
It is worth noting that Order 17 also enables the US
government to waive a contractor's immunity, even though it has not done so to
date. More importantly, a contractor's immunity extends only to acts done
pursuant to their contract. If it turns out that the Blackwater contractors had
fired first without any provocation it could be argued that such actions are
contrary to the rules of engagement and not covered by the contract and thus
immunity does not apply.
Also, certain categories of contractor employees are subject to US military law
under the Uniform Code of Military Justice (UCMJ). This was amended this past
January to broaden its scope to allow military jurisdiction over persons
"serving with or companying an armed force in the field" during a "time of
declared war or a contingency operation". Prior to this the UCMJ only covered
civilians serving with the Armed Forces only in "time of war".
Contractors who commit offenses over which the US government has
extraterritorial jurisdiction can also be prosecuted in the US court system.
The legislation which can be used for this purpose includes the 1996 War Crimes
Act, the Patriot Act, the Alien Tort Claims Act (which has already been used
for a law suit filed against Blackwater for the Septenber16 shootings) the 1994
federal anti-torture statute, and the Military Extraterritorial Jurisdiction
Act (MEJA).
The MEJA has been criticized on the grounds that it applied only to contractors
working for the US Department of Defense. But on October 4 the US House of
Representatives approved a bill sponsored by a North Carolina Democrat,
Representative David Price, to cover all contractors working for the government
in a war zone. Although this still leaves a loophole, insofar as not all
contractors work in a US declared war zone, such as US contractors supporting
the African Union in Sudan, it would certainly cover contractors such as
Blackwater and its partner firms Triple Canopy and Dyncorp, who share the State
Department personals security contract in Iraq.
Internal oversight of contractors is accomplished through contracting
activities and various laws, regulations and guidelines. These included the
Federal Acquisition Regulations, Defense Federal Acquisition Regulations ,
heads of federal agencies, head of contracting activities, contracting officer,
and contracting officer's representatives.
External oversight has been provided by the Government Accountability Office,
the Special Inspector General for Iraq Reconstruction, DoD Office of the
Inspector General, Defense Contract Management Agency, and the Defense Contract
Audit Agency.
David Isenberg, a senior analyst with the Washington-based British
American Security Information Council (BASIC), has a wide background in arms
control and national security issues. The views expressed are his own.
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