Blackwater USA employees are accused of killing several civilians, but there might not be anyone with the authority to prosecute them.
By Alex Koppelman and Mark Benjamin
Sept. 18, 2007 |
An incident this past weekend in which employees of Blackwater USA (external - login to view), a private security firm that has become controversial for its extensive role in the war in Iraq (external - login to view), allegedly opened fire on and killed several Iraqis seems to be the last straw for Iraqi tolerance of the company. Iraqi government officials have promised action, including but not limited to the suspension or outright revocation of the company's license to operate in Iraq.
But pulling Blackwater's license may be all the Iraqis can do. Should any Iraqis ever seek redress for the deaths of the civilians in a criminal court, they will be out of luck. Because of an order promulgated by the Coalition Provisional Authority, the now-defunct American occupation government, there appears to be almost no chance that the contractors involved would be, or could be, successfully prosecuted in any court in Iraq. CPA Order 17 says private contractors working for the U.S. or coalition governments in Iraq are not subject to Iraqi law. Should any attempt be made to prosecute Blackwater in the United States, meanwhile, it's not clear what law, if any, applies.
"Blackwater and all these other contractors are beyond the reach of the justice process in Iraq. They can not be held to account," says Scott Horton, who chairs the International Law Committee at the New York City Bar Association. "There is nothing [the Iraqi government] can do that gives them the right to punish someone for misbehaving or doing anything else."
L. Paul Bremer, then the head of the Coalition Provisional Authority, the initial occupation government of Iraq, issued CPA Order 17 (external - login to view) in June 2004, the day before the CPA ceased to exist. "Contractors," it says, "shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts."
The Iraqi government has contested the continued application of this order, but because of restraints that inhibit the Iraqi government from changing or revoking CPA orders, Order 17 technically still has legal force in Iraq. Furthermore, as Peter W. Singer, an expert on private security contractors who is a senior fellow at the center-left Brookings Institute, points out, in order for the Iraqi government to prosecute those contractors, the U.S. government would have to accede to it. And that, Singer says, poses a whole new set of thorny questions.
"The question for the U.S. is whether it will hand over its citizens or contractors to an Iraqi court, particularly an Iraqi court that's going to try and make a political point out of this," Singer says. If the United States is not willing to do so because of concerns that the trial will be politically motivated, he adds, there's a new question at hand. "If we really say that openly, doesn't that defeat everything we heard in the Kabuki play last week with [General David] Petraeus (external - login to view) and [U.S. Ambassador Ryan] Crocker, that everything was going great? What happens if we say, 'No, we don't think you can deal with this fairly in your justice system?'"
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That leaves international and U.S. law. But international law is probably out. Even before the Bush (external - login to view) administration, the United States had established a precedent of rejecting the jurisdiction of international courts. The United States is not, for example, a member of the International Criminal Court in the Hague. (In 2005, the government of Iraq announced its decision to join the court; it reversed that decision two weeks later.)
U.S. law, meanwhile, is hopelessly murky. More so than in any of America's previous conflicts, contractors are an integral part of the U.S. effort in Iraq, providing logistical support and performing essential functions that were once the province of the official military. There are currently at least 180,000 in Iraq, more than the total number of U.S. troops. But the introduction of private contractors into Iraq was not accompanied by a definitive legal construct specifying potential consequences for alleged criminal acts. Various members of Congress are now attempting to clarify the laws that might apply to contractors. In the meantime, experts who spoke with Salon say there's little clarity on what law applies to contractors like the ones involved in Sunday's incident, and the Bush administration has shown little desire to take action against contractor malfeasance.
In June of this year, the Congressional Research Service -- a nonpartisan research arm of Congress -- issued a report (external - login to view) on private security contractors in Iraq that included a discussion of their legal status. The report's authors gave a bleak picture of prospects for prosecution under U.S. law, referring at one point to "the U.S. government's practical inability to discipline errant contract employees."
Next page: It's not clear that Blackwater even has a license to revoke (external - login to view)