Balkinization: Immunity for Military Contractors Under Coalition Provisional Authority Order 17

Immunity for Military Contractors Under Coalition Provisional Authority Order 17

Laura Dickinson

There's been a fair amount of discussion about whether U.S. security contractors who commit abuses might be immune from prosecution in Iraq pursuant to Coalition Provisional Authority Order 17. This order arguably has continuing effect in Iraq because the Law of Administration for the State of Iraq during the Transitional Period specifies in Article 26(C) that CPA orders remain in effect until Iraqi legislation rescinds them. However, I think this concern about immunity is a bit of a red herring.

In the first place, the order itself doesn't explicitly immunize contractors because it only grants immunity to contractors "pursuant to the terms and conditions of a Contract or any sub-contract thereto." (Section 4(3)). If contractors were to fire at civilians without provocation, such actions would likely fall outside the terms of the contract in question, and therefore would be fair game in the Iraqi courts. To be sure, as one commentator on a previous post has noted, the order does give the sending state the authority to certify that a contractor did in fact act "pursuant to the terms and conditions of the contract," and provides that such a certification "shall, in Iraqi legal process, be conclusive evidence of the facts so certified." (Section 4(5)). But it is difficult to imagine how it would be in the U.S. government's interest to certify that an unprovoked use of force was an action within the terms of the contract (though admittedly this administration has often acted in ways one might think contrary to U.S. interests).

Second, even if the acts were deemed to be within the terms of the contract, the sending state can waive any immunity (Section 5), though it's possible that the state may choose not to do so.

Third, the Iraqi Parliament can revoke any possible immunity--and indeed the Parliament has begun to discuss doing just that. This would raise questions, of course, about whether any revocation could apply retroactively and therefore whether, for instance, the Blackwater guards implicated in the September 16 incident would be covered. (Kal Raustiala has suggested to me that we shouldn't assume that non-retroactivity principles necessarily apply in Iraqi courts--though I would note that there is a reasonably robust principle of non-retroactivity in international law that the Iraqi courts might choose to apply).

Fourth, as I mentioned in a previous post, I think there's a fairly strong argument to be made that the CPA immunity cannot immunize contractors who commit serious violations of international law, such as war crimes. The state of the law on such immunity is in some flux, but I would take the position that such acts simply can't be immunized, particularly when they are committed in the country seeking to exercise jurisdiction.

But overall, I think the most important point is that the Iraqi courts just don't have the capacity to provide fair trials in such cases right now. Therefore, I think it makes more sense not to waste too much energy debating the possible hypothetical effect of the CPA immunity order, but to focus instead on how best to create a truly workable accountability framework for responding to extreme cases of abuse. And given the state of the Iraqi court system, such a framework needs to emphasize avenues of criminal and civil liability in U.S. courts (where the CPA immunity order obviously does not apply). In addition, we ought to think about how we might reform the terms of the contracts themselves, a topic I will address in my next post.

Posted 1:28 AM by Laura Dickinson [link]

Comments:

Laura,

For the record, the non-retroactivity principle does apply in Iraqi courts. Article 19(10) of the Iraqi Constitution explicitly provides that "[c]riminal law does not have a retroactive effect, unless it is to the benefit of the accused."

That said, I am not convinced that rescinding Order 17 and prosecuting Blackwater employees for murder in an Iraqi court would violate Article 19(10). Order 17 does not decriminalize murder, which was obviously illegal under Iraqi law when the employees opened fire on the civilians (para. 405 of the 1969 Iraqi Penal Code); it simply provides contractors with immunity from criminal prosecution. Lifting that immunity would thus in no way give "criminal law" a "retroactive effect."

The principle of non-retroactivity in international law leads to the same result. Article 15 of the ICCPR, which Iraq has ratified, provides that “[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.” Because murder was criminal under Iraqi law when the employees killed the civilians, Article 15 does not apply.

Hope this helps. Thanks for writing on the Blackwater issue -- I've enjoyed the posts.

# posted by

Kevin Jon Heller : 7:27 AM

First and foremost, there is an assumption without evidence that Blackwater personnel are guilty of a war crime. We heard the same charges against the Marines at Haditha until that case fell completely apart under Article 32 court review.

Moreover, it is very likely that the terms of the Blackwater contract authorizes the use of force in a variety of situations including self defense. Consequently, it is not at all clear that the incident falls outside the terms of the contract without actually reading the contract.

Nor is it likely that the State Department, for whom several Blackwater personnel have died in order to assure that no State employee has been harmed, will waive Blackwater's immunity in Iraqi courts.

If the evidence proves actual criminal wrongdoing, this matter belongs in a US court under the jurisdiction provided by MEJA.

# posted by

Bart DePalma : 10:21 AM

First and foremost, there is an assumption without evidence that Blackwater personnel are guilty of a war crime.

There is nothing of the kind. The evidence indicates that the Blackwater personnel committed a war crime. If there was an assumption of guilt, we would follow your lead and shoot them without a trial. That is not at all what is being suggested here.

BTW, the Marines at Haditha still haven't explained why they lied about how those people were killed.

Personally, I would let the Iraqis put them on trial. Given your cheerleading for the "success" of this "liberation", I'm surprised that you're not an advocate for that approach.

# posted by

Bartbuster : 11:17 AM

In addition, we ought to think about how we might reform the terms of the contracts themselves

Are the actual contracts themselves available in the public record? If so, where might I find them?

# posted by

PMS_CC : 2:03 PM

Insofar as the crimes in question are war crimes, they can be prosecuted in a country such as Belgium that asserts universal jurisdiction. That seems to me to be an attractive solution: it solves the jurisdiction problem and provides a trial in courts whose fairness is not in question, unlike those of Iraq.

# posted by

Bill : 5:48 AM

My understanding is that the decrees of an occupying power cease to have force when power is returned to the local government. Insofar as the Law of Administration for the State of Iraq during the Transitional Period is itself an act of an occupying power, why is it binding on the government of Iraq?

# posted by

Bill : 5:51 AM