Accountability of Private Security Contractors under International and Domestic Law
On September 16, 2007, security guards employed by Blackwater USA (Blackwater) fired on a crowd in Baghdad's Nisour square, killing 17 people. At the time of this incident, Blackwater was under contract with the U.S. Department of State to provide security for U.S. diplomats in Iraq. This incident triggered controversy in Iraq, the United States, and the international community concerning what law applied to Blackwater's actions and to the actions of other private security contractors (PSCs) hired by the United States to provide services in Afghanistan and Iraq. This Insight analyzes the accountability of PSCs under international and domestic law.
The Challenge of Regulating PSCs
The Blackwater incident highlighted the extent to which the United States uses private companies to provide a range of military and functions during overseas operations, including feeding troops, maintaining weapons systems, conducting interrogations, and providing security for diplomatic personnel. The number of U.S.-employed contractors in Iraq is estimated to be more than 130,000, which makes the contractors-to-troops ratio about 1 to 1.[1] Approximately 30,000 of the contractors are security contractors, who are specifically authorized to use force defensively.[2] The U.S. government's extensive use of contractors, and PSCs (such as Blackwater) in particular, has raised questions about how such contractors may be held legally accountable for crimes or torts they commit.
Contrary to the claim that PSCs operate in a legal void, such contractors are subject to legal rules. As described below, international and domestic law applies to the behavior of PSCs. The regulatory framework is more of an uneven latticework than a solid structure, but legal architecture exists that has the potential to be used more robustly in the future to prevent and respond to PSC abuses.
International Law on Mercenaries
International law does not prohibit states from using private contractors to provide military and security services. As detailed in Table 1, treaty law does prohibit some forms of mercenarism and denies mercenaries combatant or POW status. The definitions of a "mercenary" are narrow, however, and may not encompass the activities undertaken, for example, by PSCs employed by the United States in Afghanistan and Iraq.
Table 1. Definitions of "Mercenary" in Treaty Law
| International Convention Against the Recruitment, Use, Financing and Training of Mercenaries (1989), art. 1 (1) | Additional Protocol I (1977) to the Geneva Conventions of 1949, art. 47(2) (denying POW and combatant status to mercenaries) |
| A mercenary is a person who: | |
|
|
International Humanitarian Law
PSCs providing services during times of armed conflict are subject to rules found in international humanitarian law. The four Geneva Conventions of 1949[5] and the two Additional Protocols of 1977[6] outlaw certain acts, whether committed by state or non-state actors. For example, Common Article 3 to the Geneva Conventions prohibits numerous acts and provides that "all parties to the conflict" are bound to refrain from such acts. Additional Protocol II applies to armed conflicts that "take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol."[7] In addition, international tribunals and national courts have found non-state actors criminally[8] and civilly[9] accountable for war crimes. Non-state actors can also commit genocide[10] and crimes against humanity.[11] Individual employees of PSCs thus might be criminally prosecuted for such crimes.
International Human Rights Law
The application of international human rights law to PSCs is arguably more complicated than international humanitarian law because much of international human rights law contains "state action" requirements that ostensibly limit liability for violations to state actors.[12] Nevertheless, under principles of state responsibility, states may be legally responsible for the actions of non-state actors when those actors are sufficiently connected to the state.[13] Courts have, for example, held states responsible for the actions of death squads and armed militias linked to governments.[14] In addition, cases may be brought against non-state actors themselves under various theories that link those actors to the state, such as conspiracy and aiding and abetting.[15] Thus, individual PSC employees and possibly the companies themselves might be held liable for human rights violations, though the status of corporate liability under international human rights law remains uncertain.[16]
Accountability under Domestic Law
Criminal and Civil Actions by the Host Nation: The Question of Immunity
Contractors ordinarily may be subject to the law of the country in which they are operating. At the time of the Blackwater incident in September 2007, however, the Iraqi government had not repealed the immunity granted to all private contractors in Iraq by the U.S. Coalition Provisional Authority (CPA) in 2004.[17] This incident has resulted in legislative proposals in Iraq to rescind the immunity for PSCs.
The immunity granted by the CPA is not, however, absolute because it may be waived, and it only provides immunity to contractors "pursuant to the terms and conditions of a Contract or any sub-contract thereto."[18] If, as alleged in the Blackwater case, a PSC fired on civilians without provocation, such actions may fall outside the terms of the contract and therefore be subject to Iraqi criminal and civil jurisdiction. In addition, it is an open question whether such an immunity provision can ever shield individuals from accusations of gross human rights violations. Regardless of the legal interpretation of the CPA immunity order, it is not clear whether the Iraqi justice system is prepared to handle such cases, particularly given the ongoing U.S. military presence there.
Application of U.S. Federal Criminal Law
Historically, private contractors have not been subject to criminal law under the U.S. military justice system because the Supreme Court has held that military criminal trials of U.S. civilians in the absence of a declaration of war are unconstitutional.[19] However, in 2006, Congress enacted legislation that would place PSCs under the authority of the Uniform Code of Military Justice in some circumstances.[20] To date, the military has not implemented this legislation, nor have courts ruled on its constitutionality.
PSCs are subject to federal criminal prosecution under the Military Extraterritorial Jurisdiction Act (MEJA).[21] Congress enacted MEJA because U.S. military courts have not been an option for private actors, and MEJA allows criminal charges to be brought against U.S. contractors working for the Department of Defense (DoD) or in support of a DoD mission.[22] Federal authorities have not robustly enforced the statute, however. Moreover, many contractors are not under contract with the DoD but instead are employed by the Central Intelligence Agency (CIA) or the Department of State (e.g., Blackwater), meaning that MEJA would not clearly apply in all cases.[23] Congress is currently considering legislation that would close this gap by extending the reach of the statute to all contractors in contingency operations.[24]
The USA PATRIOT Act also closes this loophole to some extent by expanding the United States' special maritime and territorial jurisdiction (SMTJ) to include U.S.-operated facilities overseas.[25] Thus, a federal prosecutor might bring charges against employees of PSCs that mistreat detainees if the abuse constitutes a crime within the SMTJ and was committed within a U.S. facility. A federal district court recently tried and convicted one private contractor who worked for the CIA and who was accused of detainee abuse at a U.S. facility in Afghanistan.[26] Prosecutions are also possible under federal statutes that criminalize war crimes[27] and extraterritorial torture,[28] though these statutes are also not enforced.
Civil Law Strategies for Accountability
PSCs may also be held legally accountable for abuses through tort and contract claims brought in domestic courts, including claims based on violations of international law. The use of such domestic tort and contract claims to vindicate values contained in international human rights and international humanitarian law is a growing but still under-explored terrain.[29]
In the United States, plaintiffs could bring claims against PSCs under the Alien Tort Statute (ATS), which confers jurisdiction on the federal courts to consider "torts in violation of the law of nations" brought by non-citizens.[30] Such claims could be brought against PSCs for their actions alone (e.g., ATS claims that Blackwater's alleged unprovoked killing of civilians was extrajudicial killing[31] ) or for actions that aided and abetted violations of international law by state actors (e.g., ATS claims against a private contractor in connection with detainee abuse at Abu Ghraib prison[32]).
Foreign victims of PSC-caused harm can bring transnational tort claims in the courts of the contractor's home state.[33] The pending ATS case against Blackwater also involves, for example, tort claims not based on violations of international law, such as for "claims of assault and battery, wrongful death, intentional and negligent infliction of emotional distress, and negligent hiring, training and supervision."[34]
Such tort suits might have to surmount the hurdle of a potential contractor immunity defense.[35] The precise scope of the contractor immunity doctrine, however, remains unresolved. At least one court has strongly suggested that the doctrine does not apply to human rights claims.[36] A plausible argument can also be made that the doctrine only applies to procurement contracts for weapons and other materials, not to services contracts where the contractor has more discretion and contract employees are relatively independent of government actors.[37]
Civil claims for violations of the contractual terms themselves are also possible, but the existing contracts between government agencies and PSCs rarely include obligations mandating that the contractors adhere to specific provisions of international law.[38] Nevertheless, in the future, the drafting of contracts involving PSCs provides a possible avenue for importing human rights norms and public law values into these contractual relationships.[39] For example, the terms of each agreement could require PSCs to abide by relevant human rights and humanitarian law rules applicable to governmental actors. Such contractual terms would clarify that the PSCs were functioning as an extension of government so as to satisfy any state action requirement. In addition, contracts could explicitly require employees of PSCs to receive training in international human rights and international humanitarian law.
For such contractual provisions to be useful, effective contract monitoring is required. Such monitoring could come from the government, but contracts could also require that independent organizations accredit PSCs. Industry organizations have already begun to do so, but non-governmental organizations and other independent entities without industry ties could establish rating and accreditation systems. Such systems could be employed by governments to separate those PSCs most likely to comply with international law norms from potentially rogue outfits lacking proper internal training, safeguards, and accountability mechanisms.
About the Author
Laura A. Dickinson, an ASIL Member, is Professor, University of Connecticut School of Law. For an expanded version of the ideas discussed here, see LAURA A. DICKINSON, OUTSOURCING WAR AND PEACE (forthcoming 2008).
Footnotes
[1] DEP'T OF DEFENSE, REPORT ON DOD-FUNDED SERVICE CONTRACTS IN FORWARD AREAS (July 2007) (reporting that there were 128,888 contractor personnel funded by the DOD in Iraq as of April 2007). This figure does not include contractors from other agencies, which likely would bring the total to well over 130,000.
[2]See Sabrina Tavernise & Graham Bowley, Iraq to Review All Security Contractors, N.Y TIMES, Sept. 18, 2007.
[3]U.N. GAOR, 44th Sess., Supp. No. 43, U.N. Doc A/RES/44/34 (1989) (entered into force Oct. 20, 2001), at art. 1(1). Id., at art. 1(2).
[4]Additional Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3, at art. 47 [hereinafter "Additional Protocol I"].
[5]Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31 (entered into force on Oct. 21, 1950); Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85 (entered into force on Oct. 21, 1950); Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force on Oct. 21, 1950); Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287 (entered into force on Oct. 21, 1950).
[6]Additional Protocol I, supra note 4; Additional Protocol II to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts, 16 I.L.M. 1442 (1977) [hereinafter "Additional Protocol II"].
[7] Protocol II, supra note 6, at art. 1 (emphasis added).
[8]For example, in the proceedings at Nuremberg following World War II, the tribunal convicted several corporate managers for such crimes. See U.S. v. Krauch (the "Farben Case"), VIII Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1952); U.S. v. Flick ("The Flick Case"), VI Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1952); U.S. v. Krupp ("The Krupp Case"), IX Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1950).
[9]In a civil suit brought against self-proclaimed Bosnian-Serb leader Radovan Karadzic in a U.S. court under the Alien Tort Statute (28 U.S.C. §1350 (2000)) [hereinafter ATS], the court allowed the war crimes claim (among others) to proceed without requiring plaintiffs to show that Karadzic was a state actor. Kadic v. Karadzic, 70 F.3d 232, 239-40, 243 (2d Cir.1995).
[10] The Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, (entered into force Jan. 12, 1951), at art. 4 ("[p]ersons committing genocide ... shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals") (emphasis added).
[11]Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002), at art 7.
[12]See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, 113-14 (entered into force June 26, 1987), at art. 1 (defining torture as severe pain or suffering "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity").
[13]See, e.g., Draft Articles on Responsibility of States for Internationally Wrongful Acts, arts. 4, 8, in Int'l Law Common, Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. Doc. A/56/10 (2001) (stating that the "conduct of any State organ shall be considered an act of that State under international law," and that a person's conduct shall be attributed to the state if he or she is acting on the state's instructions or under the state's direction).
[14]See Velasquez Rodriguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988).
[15]a, Doe I v. Unocal, 395 F.3d 932, 936 (9th Cir. 2002). Although the case ultimately settled out of court, the lawsuit is instructive. A group of Burmese citizens brought a class action under the ATS against US and French corporations that built a pipeline in Burma. The ATS confers jurisdiction on the federal courts to consider "torts in violation of the law of nations' brought by non-citizens. 28 U.S.C. 1350. Plaintiffs alleged that the military forces committed multiple violations of international human rights through their conduct including murder, rape, torture, and forced labor. Unocal, 395 F.3d at 936. The court concluded that the private corporations could be sued under a joint action approach if they were found to be willful participants in joint action with a state actor or its agents, here the Burmese military. Id. In particular, there was "some evidence that Unocal could influence the army not to commit human rights violations, that the army might otherwise commit such violations, and that Unocal knew this." Id. In reaching this decision, the court found the standard for aiding and abetting under the circumstances to be "knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime." Id. at 947.
[16] See Carlos M. Vázquez, Direct vs. Indirect Obligations of Corporations Under International Law, 43 COLUM. J. TRANSNAT'L L. 927 (2005).
[17]See COALITION PROVISIONAL AUTHORITY, ORDER 17, STATUS OF THE COALITION PROVISIONAL AUTHORITY, MNF, CERTAIN MISSIONS AND PERSONNEL IN IRAQ § 4 (3), here (last visited Dec. 19, 2007).
[18]Id.
[19]See Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 248 (1960) (prohibiting military jurisdiction over civilian dependents in time of peace, regardless of whether the offense was capital or noncapital); Grisham v. Hagan, 361 U.S. 278, 280 (1960) (holding civilian employees committing capital offenses not amenable to military jurisdiction); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 283-84 (1960) (expanding Grisham to include non-capital offenses); Reid v. Covert, 354 U.S. 1, 40- 41 (1957) (holding that civilians in time of peace are not triable by court-martial for capital offenses).
[20]The new legislation amends the Uniform Code of Military Justice (UCMJ) to bring military contractors "serving with or accompanying an armed force in the field" under the jurisdiction of military courts, not only during a time of declared war but also during "contingency operations." Section 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) (FY07 NDAA), amending 10 U.S.C. § 802(a)(10).
[21]Military Extraterritorial Jurisdiction Act of 2000 (MEJA), 18 U.S.C. §§ 3261-3267 (2004 Supp.).
[22]18 U.S.C. § 3267 (2004 Supp.).
[23]Indeed, some commentators have argued that the Administration has exploited this loophole by assigning tasks to contractors under agreements with agencies other than the Defense Department. See, e.g., M. Cherif Bassiouni, Torture and the War on Terror: The Institutionalization of Torture under the Bush Administration, 37 CASE W. RES. J. INT'L L. 389, 411-416 (2006).
[24]MEJA Expansion and Enforcement Act of 2007, H.R. 2740, 110th Cong. (2007). Sponsored by Rep. David Price, the bill passed in the House on Oct. 4, 2007.
[25]See USA PATRIOT Act of 2001 § 804 (amending 18 U.S.C. § 7 to include "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States' as well as "residences in foreign States . . . used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities").
[26]Scott Shane, C.I.A. Contractor Guilty in Beating of Afghan Who Later Died, N.Y. TIMES, Aug. 18, 2006, at A8.
[27]18 U.S.C. § 2441 (2000 & Supp. II 2002).
[28]18 U.S.C. § 2340A.
[29]For an interesting discussion of this issue, see TORTURE AS TORT, COMPARATIVE PERSPECTIVES ON THE DEVELOPMENT OF TRANSNATIONAL HUMAN RIGHTS LITIGATION (Craig Scott ed., 2001).
[30]28 U.S.C. § 1350.
[31]See Estate of Himoud Saed Atban et al. v. Blackwater USA, filed October 10, 2007 in the U.S. District Court for the District of Columbia, here.
[32]See Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C 2005). The court rejected the ATS claims, however, on the ground that the contractors were private actors'although it allowed the common law tort claims to proceed. Id. at 14-15.
[33]For a good overview of tort cases, see Kataryna Rakowsky, Note, Military Contractors and Civil Liability: Use of the Government Contractor Defense to Escape Allegations of Misconduct in Iraq and Afghanistan, 2 STAN. J. CIV. RTS. & CIV. LIB. 265 (2006).
[34] Estate of Himoud Saed Atban, supra note 31.
[35]Boyle v. United Technologies, 487 U.S. 500, 512 (1988).
[37]See Ibrahim v. Titan Corp., 2007 WL 3274784 (D.D.C. Nov. 6, 2007) (denying summary judgment to defendant corporation that supplied interrogators, on immunity grounds, because interrogators were relatively independent of government management and control; granting summary judgment to company that provided interrogators.); cf. Jama v. Esmor Corr. Servs., Inc., 334 F. Supp. 2d 662, 688- 89 (D.N.J. 2004) (rejecting government contractor defense for tort claims against private prison management corporation because contract did not specifically require or approve of corporation practices that led to abuse).
[38]For an analysis of the publicly available contracts between U.S. governmental entities and private contractors offering military, security, and reconstruction services in Iraq, see Laura A. Dickinson, Public Law Values in a Privatized World, 31 YALE J. INT'L L. 383 (2006) (contrasting, on the one hand, state governmental contracts with providers of prison management, health care, and other services, which incorporate "public law values" such as those embedded in constitutional law, and, on the other hand, foreign affairs agreements, which lack contractual terms establishing similar values such as the norms embedded in international human rights and humanitarian law). For an excellent overview and critique of contract law and practice in Iraq, see Steven L. Schooner, Contractor Atrocities at Abu Ghraib, Compromised Accountability in a Streamlined, Outsourced Government, 16 STAN. J. L. & POL. 549 (2006).
[39]See Dickinson, supra note 38.