The Rule of Law and Lawless Contractors

One of the stories I recount in Howling in Mesoptamia relates to an episode at the Suleymania University College of Law, concerning the arrival of USAID personnel, and their hired guns, military contractors from Blackwater, or Triple Canopy, or one of the other organizations hired to protect government personnel during their travels through the country. (I didn’t ask at the time.) The particular occasion was discussion about a rule of law project on which I was working, and which USAID was funding, and in which the College was participating. I, and an American law librarian, Kimberli Morris, whose incredible work in Iraq in obviously difficult conditions led to the creation of law libraries that rival those of many in the Middle East, went to this school nearly every day, unarmed and without protection because it was in the considerably safer Kurdish region. USAID, however, had other requirements, and brought along their contractors.

The book tells the details of the encounter, the SUV’s nearly killing a student, the guns pointing in every direction, on a campus where to carry a firearm is to risk expulsion, professors in their 70’s who stepped forward to greet me being rewarded with a forearm in the neck, and the impromptu student demonstration that began two hours later, in the most pro-American region of the country, solely based on the activities of a few hours. It was, suffice it to say, distressing, ludicrous and embarrassing.

But what made the matter even more ironic to my mind was the purpose of the meeting. Here they were, and we were, funding and implementing a project to strengthen the rule of law in Iraq, and it was the Iraqis—students, professors, and administration—who in fact were providing us the lessons. They had campus rules, and Kurdish laws, and wanted our side to respect them, or at least to negotiate exceptions as necessary with appropriate authorities. But this was not the contractor way in Iraq, they recognized no laws, they had the guns, and sought submission of all to their might. How the USAID personnel managed with a straight face to discuss with the Dean the importance of the rule of law under these circumstances, when the only rule they had recognized upon entering was that of the gun, they will have to answer. I can only say I offered no comments that day, and was fortunate enough not to have to endure a similar situation again, as the Dean barred them from campus thereafter, indicating he would rather lose funding than deal with the local consequences of another visit.

The story came to my mind recently as I continue to hear about the long term security arrangement being negotiated between the United States and Iraq. One of the most intractable points in the agreement relates to immunity for contractors such as Blackwater. The United States, unsurprisingly, will not accept anything less than full legal immunity, the Prime Minister reportedly wants all contractors, and indeed even soldiers to be subject to full legal process. Even the religious authorities in Najaf, who realistically carry far more political influence in the National Assembly than the Prime Minister, have weighed in, alluding darkly to opposing any agreement that infringes on Iraqi sovereignty, an oblique reference, no doubt, to immunity deals, among other things.

With respect to US military personnel, of course, the question is not whether or not they should be subject to criminal sanction at all, but rather which law should apply, the United States Code of Military Justice or Iraqi law. It is hard to imagine the United States yielding the point, but nonetheless, within Iraq, this notion of ceding authority over lawbreaking soldiers to the United States is contentious. With respect to contractors, however, the American position is viewed in Iraq as untenable. In the Iraqi view, the United States wants a continuation of the status quo as concerns the contractors, which is more or less impunity. Contractors have opened fire in the Iraqi streets and killed dozens, one has shot a Vice President’s bodyguard in cold blood in front of numerous witnesses while drunk, and countless other accusations of murder and mayhem have been lodged. Not one has resulted in criminal legal sanction against anyone, to date. As a de jure matter, the law applying to the contractors is insufficiently clear, and as a de facto matter, there is no such law. While the Americans, and the American media, repeat that there are difficulties of proof associated with such matters, Arab media outlets wonder aloud why it is that military justice manages to proceed in wartime situations (inadequately, in their view, but it does proceed) while a drunk contractor who shoots another man in full view of witnesses is whisked away almost immediately to the safety of his home in the United States, and indeed is given clearance to work again in the Middle East at a later time. Unsurprisingly, conspiracy theories abound.

Thus, it is not clear to me that as concerns the rule of law, the United States is on the winning side of this issue. Iraqis have courts, and laws, and judges, people I know well, proud of the legal traditions and the legal culture of the nation, even if it has, admittedly, some shortcomings. Yet they go to work every day, handle disputes every day and justifiably feel that alleged crimes committed in their jurisdiction, whether by soldiers or civilians, require a hearing in these venues; in other words, they seek a submission to the rule of law. The American concerns respecting bias, and the difficult manner in which the military operates in war-like situations that render domestic criminal law difficult to apply, are understandable enough, in the context of soldiers, who are subject to legal process. The rule of law remains, it’s just a different law. With the contractors, however, the position hardly seems sensible. I wonder, as we continue to fund rule of law programs in Iraq, worthy valuable programs in my view, whether or not some of the lessons might well be applied by both sides.