14 Nov FBI Concludes that Blackwater Shootings Violated Deadly Force Rules
A team of FBI investigators has concluded that the September killings of 14 Iraqi civilians by the U.S. military contractor Blackwater violated deadly-force rules security contractors. Although the investigation is continuing, this seems to settle part of the factual dispute over the Blackwater shootings. But can Blackwater’s personnel face criminal prosecution?
I am not sure, actually. This is a bit of a mess, legally. Although the Iraqi government has withdrawn CPA Order 17, which arguably immunized contractors, they did so after the September 16 shootings. I know Kevin doesn’t think this is a problem, but I want to think about this some more. How could immunity have any meaning if it can always be retroactively withdrawn? I agree that there is support for retroactive criminal liability for very serious war crimes, but I don’t think that is quite at issue here. So it seems like it should still protect Blackwater from Iraqi prosecutions, unless the Iraqis can establish that the Blackwater employees were not acting pursuant to their contract. This FBI finding seems to support that, so maybe we will see an Iraqi prosecution after all since the Blackwater employees’ immunity wasn’t really all that broad.
Alternatively, there are U.S. criminal statutes that might reach their activity in Iraq, but the most obvious candidate: the War Crimes Act, doesn’t seem to apply here, since these crimes don’t seem to rise to that level. The Military Extraterritorial Jurisdiction Act may or may not apply, but that also looks murky since these were State Department contractors, not Pentagon ones.
So I actually think, offhand, that the Blackwater employees face a greater danger of prosecution by the Iraqi government than the U.S. government. Of course, if this is the case, the U.S. government might do the Blackwater employees a favor by initiating a prosecution first, since as Laura Dickinson points out, Iraqi courts might not be the fairest places these days nor the friendliest for U.S. security contractors.
“the War Crimes Act, doesn’t seem to apply here, since these crimes don’t seem to rise to that level.”
I guess we are talking about this one incident only. How about if all 195 incidents are taken into consideration?
I can only assume Blackwater was smart enough to relocate the involved personnel out of Iraq soon after the incident. That at the very least makes Iraq have to request them for extradition.
There is one additional potential source of criminal jurisdiction. At the time of these acts, the UCMJ had been amended to extend jurisdiction to civilians accompanying the force in the field during any “contingency operation.” Because this provision of the Code has essentially been a nullity since 1970, there is uncertainty as to how wide the net extends. Specifically, it is not clear whether the civilian must be working under contract for the Department of Defense, or merely working in support of an overall military mission in the theater of operations. However, if jurisprudence from the past addressing this provision of the Code is a guide, it supports the broadest possible application. Accordingly, although it would undoubtedly result in a constitutional challenge, these individuals could be charged with murder or manslaughter in violation of the UCMJ and brought before a General Court-Martial for trial.
Julian,
How about this “modest proposal”? Given that there are difficulties in prosecutions (1) in Iraq and (2) under US law, why not prosecute outside Iraq but under Iraqi law? A precedent for this kind of transnational criminal prosecution is the Lockerbie trial of Libyans in the Netherlands but under Scottish law.
Iraq clearly needs USG cooperation to move foreward with any prosecution, including extradition (as Matthew noted above) and either waiver of immunity or at least refraining from certifying that the contractors were acting pursuant to their contract (see the link to Laura Dickinson’s post on Balkinization). Iraq no doubt would also benefit from the FBI’s investigation and other US technical support for the prosecution and trial, as well as from conducting a trial that meets — and is seen to meet — international standards of fairness.
So, while Iraq might prefer an “ordinary” domestic trial, perhaps it could accept a Lockerbie-type solution as part of a grand bargain. And for the USG, perhaps it could accept this as an attractive middle ground between doing nothing despite the FBI’s findings and bearing the burdens associated with prosecution under US law or in Iraq.
Let the critiques fly!
–Perry.
Julian,
How about this “modest proposal”? Given that there are difficulties in prosecutions (1) in Iraq and (2) under US law, why not prosecute outside Iraq but under Iraqi law? A precedent for this kind of transnational criminal prosecution is the Lockerbie trial of Libyans in the Netherlands but under Scottish law.
Iraq clearly needs USG cooperation to move foreward with any prosecution, including extradition (as Matthew noted above) and either waiver of immunity or at least refraining from certifying that the contractors were acting pursuant to their contract (see the link to Laura Dickinson’s post on Balkinization). Iraq no doubt would also benefit from the FBI’s investigation and other US technical support for the prosecution and trial, as well as from conducting a trial that meets — and is seen to meet — international standards of fairness.
So, while Iraq might prefer an “ordinary” domestic trial, perhaps it could accept a Lockerbie-type solution as part of a grand bargain. And for the USG, perhaps it could accept this as an attractive middle ground between doing nothing despite the FBI’s findings and bearing the burdens associated with prosecution under US law or in Iraq.
Let the critiques fly!
–Perry.