The Rule of Law and Lawless Contractors

by Haider Ala Hamoudi

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.

http://opiniojuris.org/2008/06/18/the-rule-of-law-and-lawless-contractors/

7 Responses

  1. I think this will be a dealbreaker for both sides that may be a benefit in that the agreement will not be agreed. Alternatively, the question becomes whether we are watching negotiation brinksmanship in a competitive negotiation knowing full well that the farther we go along the US president is less worried about having to live long with the results of the negotiation.

    My impression with the US is that the period between the November election and the next January inauguration of the new President is a terrible period in which the administration in power (democrat or republican) gives away the goodies. I personally would think the best thing would be a 6 month UN extension to have the decision be one of a new President as opposed to the last of an old President for the US.

    For the Iraqis thinking about conspiracy theories, just because one is paranoid does not mean that someone is not out to get you. It is obvious that there is little vision at the top of the importance of applying the law to our people for transgressions in the war zome. One reason is that the top did not want to comply with law.

    And the calculus here is pretty much an indifference to Iraqi deaths from what I see. It is all about American security.

    This contrasts with people like General Winfield Scott in the Mexican-American War who set up military tribunals that are reported to have been considered fair in going after civilian and non-civilians for transgressions in the territory of Mexico which his forces occupied.

    Can we fix it? It seems that there have to be models from the past in Status of Forces Agreements that reach this.

    I want to ask another question to you – in your work in Iraq as an American with the CPA did you run into other people of color working at high levels of the CPA – African-Americans, Hispanic-Americans, Asian-Americans, or Native-Americans. In all the reporting I saw I saw people of color as troops and some generals but no civilians other than Condi Rice. Persons in policy roles – not just administrative roles. I am curious because of your USAID story. My dad worked for 35 years with USAID (including in Nigeria during the Biafran War) and was a foreign-service officer who did some remarkable things during his tenure.

    Best,

    Ben

  2. Thanks for the comment Ben.

    Well, first, I didn’t work with the CPA. I mean I worked opposite them, for the Iraqi GC, but I was neither paid by them, nor had a contract with them, or anything. No relationship of any kind. You may have meant that, I just want to stress it.

    But to answer your question, I remember all white people over at the CPA, and overwhelmingly male, except for some pretty small number of Iraqi Americans. I also remember a rather strict ideological purity–all solid right Republicans it seemed.

  3. Sorry for my error – excuse me.

    Best,

    Ben

  4. Professor Hamoudi,

    I just finished your book this evening and wanted to let you and Opinio Juris readers know how much I enjoyed it, for it is, indeed, “honest, delightful, and touching.” And I’m glad we did not have to wait until “after the destruction of Basra” to have you back at this blog! You movingly brought Iraq and Iraqis to life in a way that the mass media news stories have yet to do (or are not capable of doing?). I was especially intrigued by your discussion of aspects of Shi’ism, particularly its prominent holy days, rituals, and pilgrimage sites. Still, I admit to sharing your distaste for “the more extreme varieties of commemoration” of the martyrdom of al-Husayn ibn ‘Ali at Karbala.

    The “Gasoline” and “CPA Adrift” chapters spoke volumes alone, confirming my intuitions about the follies of our country’s behavior in Iraq.

    And the reverberative power of this passage is quite compelling:

    “I believed in this land rich with oil through which two rivers flowed, the home of the gardens of Babylon, the gates of Nineveh, the Abbasid palaces of Baghdad, and the holy shrines of Najaf and Kerbala. I believed in its history and its traditions and its religion. I believed in its importance to its neighbors and to the world’s mightiest players, who could scarcely afford to leave it in the disarray in which it was. I believed in my grandmother’s tomatoes and okra, in Abu Ahmed’s tea with cardamom, in the lamb on the spitfire prepared at every large party, and in the grilled fish cooked on the banks of the Tigris. I believed in the sunset over the Euphrates viewed from the plains of Kerbala, in the mountains of Suleymania, and in the swamps of Ahwar. I believed in the music of Nadhem Al-Ghazali, the poetry of Abi Nuwas, the theology of Muhammad Baqir al-Sadr. And more than anything else, I believed deeply, and without reservation, in the goodness of the people living in this blighted land–in their resourcefulness, their ingenuity, their intense desire for a better life, and their inherent ability to rise above what separated them and work together to create a better land. In spite of the terrorism, in spite of the American blunders, in spite of the crime and the hate and the war and the death and the looting, and in spite of the obvious, I still believed.”

    Such irrepressible belief is one with a resolute faith that makes for the kinds of virtuous character we should all find worthy of emulation.

  5. Wow, thanks. Very flattered.

  6. An excellent point regarding contractors and the de facto immunity provided by CPA Order #17. I know that Iraq’s cabinet approved a draft law to repeal that CPA provision but I’ve not heard more since it was sent to Parliament. I wonder if the current debate over the SOFA has overrun the issue and, thus, halted the progress of the legislation. (?)

    You also make an important point when you note: “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.”

    It is surprising, in the context of state-building and legal reconstruction, how little attention is paid to domestic institutions and organic legal systems. Your comment above would, no doubt, come as a surprise to some.

    DES

  7. I think the repeal of Order 17 has been put on hold, I haven’t seen any reference to it anywhere in weeks. As to whether it’s the long term security arrangement/SOFA or American pressure, I have no idea. But it’s a good point.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.