24 Oct Iraq to Remove Blackwater’s Immunity from Prosecution
The government of Iraq has decided to formally revoke CPA Order 17, a move that would open the door to prosecuting Blackwater employees in Iraqi courts for killing 17 civilians last month:
“The cabinet held a meeting yesterday and decided to scrap the article pertaining to security companies operating in Iraq that was issued by the CPA (Coalition Provision Authority) in 2004,” government spokesman Ali al-Dabbagh said in a statement.
“It has decided to present a new law regarding this issue which will be taken in the next cabinet meeting.”
Article 1 of Section 2 of CPA order 17 issued by then US administrator for Iraq, Paul Bremer, stipulates that the “multinational force, foreign liaison missions, their personnel, property, funds and assets and all international consultants shall be immune from Iraqi legal process.”
The immunity granted to private contractors has become controversial since a series of shootings involving foreign security guards, the most infamous of them a September 16 shooting in which employees of the Blackwater firm killed 17 Iraqis in Baghdad.
With typical sloppiness, the AFP article fails to quote the correct provision of Order 17, which is actually Section 4. Section 4(3) provides, in relevant part, that “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.”
Some commentators have suggested that Iraq would violate the principle of non-retroactivity if it prosecuted Blackwater employees for acts committed while Order 17 was in effect. But that’s not correct. Although 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,” murder was (obviously) illegal under Iraqi law when the employees opened fire on the civilians. See para. 405 of the 1969 Iraqi Penal Code. Order 17 did not decriminalize murder; it simply provided U.S. 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 Blackwater employees killed the civilians, Article 15 does not apply.
Whether the Blackwater employees will, in fact, be prosecuted by the Iraqis remains to be seen. I’m skeptical. I think it is far more likely that the employees — and perhaps the company as a whole, which is facing increasing scrutiny in the U.S. — will leave Iraq long before that happens. Nevertheless, the move is clearly smart politics by the Iraqi government, which obviously — and understandably — wants nothing more to do with the company.
UPDATE: For an excellent — and much broader — analysis of the immunity issue, see Laura Dickinson’s post at Balkinization here.
Well, by golly gee whiz, if the Bush Administration is so damn self-assured about allowing the Iraqis to exercise their right to self-govt, there should be no problem whatsoever with Iraq declaring Backwater persona non grata.
I wonder whether this isn’t too quick. Arguably, Blackwater’s conduct (by virtue of Order 17) did not “constitute a criminal offense” under Iraqi law at the time it occurred. Yes, if anyone else had done the same thing it would have been murder, but — assuming that the Blackwater employees were actually acting “pursuant to the terms and conditions” of their contract — they weren’t like anyone else. Can you cite to any authority, for example under the Ex Post Facto Clause, that a revocation of criminal immunity can be applied retroactively, such that conduct that was legally protected from criminal liability when it occurred nevertheless can be subject to prosecution merely because the legislature later decides that the immunity grant may not have been such a good idea?
I think Kevin is right, immunity is a jurisdictional matter, not a matter of responsibility, and responsibility is what matters for retroactivity.
Although not identical, diplmomatic immunity is at least a reasonable analogue. If immunity is waived, then prosecution can occur and there is no retroactivity problem. One example is the prosecution in the UK of a Columbian diplomat (Jairo Soto-Mendoza) for murder in 2003. After the relevant events his immunity was waived, and he then stood trial. He was acquitted on the grounds of self-defence, but at no time was it ever even argued that the prosecution was problematic from the point of view of retrospectivity.
See also (in the UK) e.g. Dickinson v Del Solar [1930] 1 KB 376-Lord Stewart ‘Diplomatic immunity does not import immunity from liability but only exemption from local jurisdiction’
In the US, section 6 of the Diplomatic Relations Act 1978 requires diplomats to have motor insurance, which at least implies that the US believes that responsibility arises, although there is immunity from jurisdiction (section 6 allows suits against their insurers).
All agreed, but it’s Lord Hewart, not Stewart (actually, it should be Lord Hewart CJ, since he was Lord Chief Justice of England at the time, and was not sitting in the House of Lords). Pedants’ revolt…
The German Federal Constitutional Court has decided along the same lines, incidentally, even in a case concerning the repeal of the time bar on prosecutions for murder. That was held to be a procedural matter, and as such not covered by the constitutional guarantee against retroactive criminal laws (Article 103(2) of the Basic Law).
Agreeing with my colleague Laura Dickinson that this is all “a bit of a red herring,” it is still fun to make a few points in this interesting discussion. First, it seems to me to be important to distinguish between a waiver operating within an existing immunity regime and a retrospective abrogation of that immunity regime. As with the immunity regime for diplomats, discussed in Robert’s comment above, CPA Order 17 clearly provides that the immunity of Contractors is “not for the benefit of the individuals concerned” and may be waived by the “sending state,” i.e. the US with respect to Blackwater. (Sections 5.1, 5.3.) So, I see no issue of retroactivity in the case of a waiver – that possibility is express in CPA Order 17 and Contractors knew of it or should have known of it. Retrospective abrogation of the entire immunity regime does seem more problematic, however. Second, I agree with Robert that immunity goes to jurisdiction, not to responsibility. Order 17 makes this clear as well: “Except as provided in this Order, all Contractors shall respect relevant Iraqi laws…..” (Section 4.4). Finally, Laura called attention to the facts that Contractors’ immunity is limited to acts within… Read more »
“Under US domestic law, I believe it is clear that courts will apply the rules of evidence as they exist at the time of the litigation, not at the time of the underlying events”
This is not quite right. See, e.g., Carmel v. Texas, 529 U.S 513 (2000), which holds that changes in the rules of evidence that work to the detriment of the criminal defendant may not be applied retroactively.
Also note, per Tobias’ discussion of the German constitutional ruling, that the U.S. Supreme Court held in Stogner v. California, 539 U.S. 607 (2003), that the Ex Post Facto Clause bars retroactively extending a statute of limitations that has already run as to a particular defendant.