Tuesday, October 16, 2007
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.
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