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.