23 Nov Blackwater Assassins Posing as Aid Workers
The Nation has just published an extensive article documenting the “secret war” Blackwater employees have been conducting in Pakistan. The opening grafs:
At a covert forward operating base run by the US Joint Special Operations Command (JSOC) in the Pakistani port city of Karachi, members of an elite division of Blackwater are at the center of a secret program in which they plan targeted assassinations of suspected Taliban and Al Qaeda operatives, “snatch and grabs” of high-value targets and other sensitive action inside and outside Pakistan, an investigation by The Nation has found. The Blackwater operatives also assist in gathering intelligence and help run a secret US military drone bombing campaign that runs parallel to the well-documented CIA predator strikes, according to a well-placed source within the US military intelligence apparatus.
The source, who has worked on covert US military programs for years, including in Afghanistan and Pakistan, has direct knowledge of Blackwater’s involvement. He spoke to The Nation on condition of anonymity because the program is classified. The source said that the program is so “compartmentalized” that senior figures within the Obama administration and the US military chain of command may not be aware of its existence.
The entire article is disturbing, but I was particularly struck by the article’s claim that Blackwater assassins have been posing as aid workers in order to maximize their effectiveness:
According to the source, Blackwater has effectively marketed itself as a company whose operatives have “conducted lethal direct action missions and now, for a price, you can have your own planning cell. JSOC just ate that up,” he said, adding, “They have a sizable force in Pakistan–not for any nefarious purpose if you really want to look at it that way–but to support a legitimate contract that’s classified for JSOC.” Blackwater’s Pakistan JSOC contracts are secret and are therefore shielded from public oversight, he said. The source is not sure when the arrangement with JSOC began, but he says that a spin-off of Blackwater SELECT “was issued a no-bid contract for support to shooters for a JSOC Task Force and they kept extending it.” Some of the Blackwater personnel, he said, work undercover as aid workers. “Nobody even gives them a second thought.”
If this is true, the Blackwater employees are almost certainly engaged in acts of perfidy, defined by Article 37 of the First Additional Protocol as “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Feigning civilian status is a prototypical example of perfidy.
Blackwater’s pefidious acts could qualify as two different war crimes, depending on where, when, and against whom the assassinations were committed. (I’ll leave the status of the various participants in the various conflicts in Afghanistan and Pakistan aside for now.) In international armed conflict, Article 8(2)(b)(xi) prohibits “killing or wounding treacherously individuals belonging to the hostile nation or army,” while Article 8(2)(b)(vii) prohibits “[m]aking improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury.” In non-international armed conflict, Article 8(2)(e)(ix) of the Rome Statute prohibits “[k]illing or wounding treacherously a combatant adversary”; there is no non-international equivalent to Article 8(2)(b)(vii).
If the Blackwater employees attacked combatants while impersonating aid workers, they would be guilty of “killing or wounding treacherously” regardless of the nature of the conflict. If they impersonated the aid workers using the distinctive emblems of the Geneva Conventions and caused death or serious injury — a consequence requirement, interestingly, that goes beyond Article 38 of the First Additional Protocol, which simply prohibits misuse — they would be guilty of “making improper use” as long as the conflict qualified as international.
The ICC has jurisdiction over war crimes committed in Afghanistan. (Pakistan has signed but not ratified the Rome Statute.) Ken and I have discussed before — see here and here — the possibility that the ICC will investigate such crimes. If it does, the actions of the Blackwater employees should certainly be on its list of targets: the prohibition of perfidy is fundamental to international humanitarian law, because combatants who make use of perfidy, especially in the form here, dramatically increase the likelihood that civilians and aid workers will be targeted during a conflict. I don’t expect better of Blackwater, which has demonstrated its contempt for civilian lives before. But I certainly expect the international community to do something about it.
HAT-TIP: Una Vera at Change.Org’s new blog, War and Peace.
If Blackwater combat or security personnel are in fact pretending to be aid workers and involving themselves in the fighting, that would most certainly be perfidy. However, it bears mentioning that not all Blackwater personnel are involved in fighting. Some are truck drivers and other logistics personnel. If these are the personnel acting “undercover” as aid workers, it may not remove their actions entirely from the realm of perfidy given that their actions directly contribute to the combat personnel’s fighting capability, but there would be a stronger argument that their combat personnel have not engaged in “killing or wounding treacherously.” In addition, there is the question as to whether they are intentionally adopting the symbols of protection (the Red Cross symbol or other aid worker emblems) or whether they are simply aware of and not correcting misconceptions by the civilian population as to whom they represent. Protocol I’s non-exhaustive list of examples as to what constitutes perfidy does not include a failure to declare that one is not an aid worker. On the other hand, the Hague requirements of wearing a fixed and distinctive emblem and carrying arms openly should eliminate this gray area, so even if it is not… Read more »
I found the below later in the story. As the previous post makes clear, such details are clearly important.
Blackwater, according to the military intelligence source, is not doing the actual killing as part of its work in Pakistan. “The SELECT personnel are not going into places with private aircraft and going after targets,” he said. “It’s not like Blackwater SELECT people are running around assassinating people.” Instead, US Special Forces teams carry out the plans developed in part by Blackwater.
The former Blackwater executive, when asked for confirmation that Blackwater forces were not actively killing people in Pakistan, said, “that’s not entirely accurate.” While he concurred with the military intelligence source’s description of the JSOC and CIA programs, he pointed to another role Blackwater is allegedly playing in Pakistan, not for the US government but for Islamabad. According to the executive, Blackwater works on a subcontract for Kestral Logistics, a powerful Pakistani firm, which specializes in military logistical support, private security and intelligence consulting.
In light of the above two comments: U.S. Special Operations Forces, “who do not wear uniforms, operate behind enemy line, do not openly display their weapons, and generally fail to conform to the rules of war–also could be considered terrorists in that they are neither soldiers nor civilians.” (Larry May, in War Crimes and Just War, 2007). And no doubt this makes it likely that Blackwater/Xe Services LLC is one of the CIA contractors involved with the CIA in the joint operations involving use of armed drones in Pakistan: “The heavy involvement of the CIA and CIA contractors in the decisions to strike may alone account for the high unintended death rates [in the drone attacks: from 2006 until late 2009, ‘about 20 suspected militant leaders have reportedly been killed in Pakistan during strikes that killed between 750 and 1000 other persons’]. CIA operatives are not trained in the law of armed conflict. They are not bound by the Uniform Code of Military Justice to respect the laws and customs of war [which of course include the fundamental targeting principles of distinction, necessity, proportionality, and humanity].” (Mary Ellen O’Connell; see her important new article, ‘Unlawful Killing with Combat Drones: A Case… Read more »
C.L. Kurlander, you mention two potential mitigations–that not all Blackwater personnel are involved in fighting (drivers etc) and that some may be “not correcting misperceptions” rather than overtly displaying symbols of protection such as a Red Cross/Crescent emblem.
But as anyone who has worked in a conflict or post-conflict environment can tell you, those who would target aid workers DO NOT MAKE these distinctions. Aid organizations are constantly having to dispell rumors (of spying, military motives etc) among some segments of the local population, even where there is absolutely no evidence that might point to suspicion. In Iraq, our organization was accused of being Mossad agents by one of the local papers because some thought the “I” in the acronym stood for Israel, rather than International. The worst possible scenario for aid workers is to have such suspicions confirmed, and Blackwater has put the lives of thousands in the Pakistan aid sector at risk, both foreign and local.
Usually when examining whether acts are perfidious one should avoid begging the question; phrasings like “Blackwater’s pefidious acts could qualify as two different war crimes, depending on where, when, and against whom the assassinations were committed” simply assume the conclusion and work backward. And “where, when, and against whom” aren’t really the first questions–the first questions are what law applies (what kind of conflict are they participants in), a question which is bizarrely set aside, and only then whether the act constitutes a violation of that law. Assuming an international armed conflict and the applicability of Article 37 of the First Additional Protocol, one would note that what is prohibited is killing, injuring or capturing an adversary by resort to perfidy, and thus it isn’t enough to ask where, when and against whom, but one must also ask what the connection is between the allegedly perfidious conduct and the killing in question. In this case, the individuals in question are support personnel who work “undercover” as aid workers and who don’t kill. The killings don’t seem to be accomplished “by resort to perfidy”–it isn’t the case that the terrorists in Pakistan are killed because they are led to believe these… Read more »
Blackwater/Xe are civilians. They are not soldiers or militia or privileged combatants. Civilians cannot be accused of “pretending” to be civilians because they are civilians. When a civilian kills (or participates in the killing of) another civilian, it is simple murder. If the Pakistani government is complicit and does not prosecute the crime, it may be a violation of Human Rights law but is not a war crime. However, if the people being killed are unprivileged combatants (because they are members of the regular armed force of a non-state actor in a non-international armed conflict engaged in continuous combat function) then their death is not murder but simple combat. In that case, participation by civilians in targeting the enemy is no different than any other civilian telling the police or military where a dangerous criminal or enemy soldier is located. The fact that it is organized rather than spontaneous is not relevant. Pakistan has a properly elected government and it is the duty of every resident to report criminal activity to the authorities, even if the resident is a non-citizen. The fact that the killing may be done by the CIA, another civilian organization associated with the US government, makes… Read more »
The above story about blackwaters acts was quite disturbing and if found to be true may be against article 37. Mercenaries are nothing new and Blackwater has done a masterful job at capitalizing on the capialist system by making it corporate. However, Blackwaters practices may be contrary to international law but the better question is as a corporate entity who is liable, the state of corporation or the company itself. The U.S. by written policy does not condone or do assassinations, but when the DOJ contracts out work it seems this may be the U.S. doing by corporate entities what it can not by state. It was and is these type of practices that have so harmed the U.S. world image thus far and until the DOJ gets a better handle on what its subcontractors do, they should not contract out the work of the state.
This implicates the interesting intersection between war and spying — overt action associated with armed conflict and covert action either associated with armed conflict or not. Who conducts covert action on behalf of the US? May it be contracted out? What are the legal implications of out sourcing covert action, if any? Is it lawful for the military to conduct covert action under US domestic law? What are the international law implications, if any? Spies do not enjoy the protections of the laws of war, as I inderstand it, nor do they enjoy the privileges. The US law on covert action can be found at Title 50 US Code section 413b. Paragraph (d) defines covert action as “an activity or activities of the United States Government to influence political, economic or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly….” The statute goes on to explain that “covert action” does not include traditional diplomatic or military activities, nor intelligence collection activities, law enforcement activities or activities to provide routine support to overt activities of other US agencies abroad. The work of spies in the realm of covert action (and… Read more »
I think you’re giving this story a little more credibility than it merits. The source is anonymous, the CIA won’t talk about things to either confirm or deny (as per always) and there’s little chance of any of it being proved false. Most of it is speculation and insinuation.
Note how the actual quotes are very vague. A lot of this is probably political infighting between the contractors and the military, many of whom dislike Blackwater (for a variety of relatively good reasons.)
Nonetheless, if we take the posing as aid workers quotes at face value, I’m still not convinced it’s an actual violation of the laws of war. First of all, as Mr. Gilbert points out, they’re civilians, second of all, there’s no evidence they are actually using distinctive emblems, only that they’re background cover is as aid workers.
Guess the Blackwater operatives have been studying the Goldstone report, Kevin:
493. The reports received by the Mission suggest that it is likely that the Palestinian armed
groups did not at all times adequately distinguish themselves from the civilian population among
whom the hostilities were being conducted. Their failure to distinguish themselves from the
civilian population by distinctive signs is not a violation of international law in itself, but would
have denied them some of the legal privileges afforded to combatants.
Personally, I find it difficult to believe that if an operation or group were so secret that senior officials in the President’s administration were unaware of it, we would be reading about it through any media account.
Anne,
I assume you are trying to make some snide point, but I fail to see what it is — para. 493 is an accurate statement of international law. Interestingly, though, your organization has taken the position that adoption of civilian dress by a combatant is inherently perfidious, which is clearly incorrect. It is only perfidy if the combatant uses distinctive emblems or makes use of civilian dress to kill, injure, or capture a combatant.
Howard,
Terrorists qualify under IHL as civilians. So is it your position that an al-Qaeda group that leads US troops into an ambush by feigning surrender with a white flag can only be prosecuted for murder, not the war crime of perfidy?
Kevin: “Terrorist” is a meaningless term. There are three categories: Privileged combatants (soldiers), unprivileged combatants, and civilians. The first two can be targeted at all times by military operations while civilians can only be targeted if they are directly participating in combat operations. Some members of the Army of Afghanistan under the Taliban were regular soldiers who should have been entitled to combatant privilege. They engaged in no terrorist operations and should not be called terrorists, although they often are. Had any of them engaged in perfidy and killed an American, they should be charged with both perfidy and murder before a Court Martial (because all versions of the MCA exclude lawful combatants from the jurisdiction of Military Commissions). They are generally not subject to civilian trial, but I am willing to change my mind on this if you can cite a single case of “perfidy” in combat being charged in a Federal district court. The current Taliban/al Qaeda force (particularly in Pakistan) might be more accurately categorized as what the ICRC calls the regular armed force of a non-state party to a non-international conflict. They are not civilians, but rather unprivileged combatants who engage in “continuous combat function”. They… Read more »
A civilian who directly participates in hostilities during an armed conflict can commit war crimes, including perfidy. Insofar as the Blackwater employees directly participated in hostilities, they could commit war crimes while doing so, including perfidy. The fact that those employees do not always directly participate in hostilities, and thus could not commit perfidy during those times, is irrelevant.
Howard,
I obviously didn’t make my hypothetical clear enough. A group of al-Qaeda fighters gets into a firefight with US soldiers in Afghanistan. During the fighting, the al-Qaeda group raises a white flag, indicating surrender. When the US soldiers come to take them prisoner, the group opens fire and massacres them. Is it your position that the al-Qaeda fighters could only be prosecuted for murder — not for the war crime of perfidy?
Kevin: The US has consistently asserted that Taliban and al Qaeda forces in Afghanistan are combatants. That is the basis for their military detention in Guantanamo. The enemy engaged in combat today is part of the same force with the same leaders as those engaged in 2001. We can argue whether a particular group represent lawful or unlawful combatants and how their original status as the regular army of a recognized country changed over time, but either way they are subject to a charge of perfidy. What they clearly are not are either civilians or terrorists. The more interesting hypothetical takes the same force of Taliban/al Qaeda a few dozen miles across the porous border with Pakistan and then repeats the same sequence of steps with the Pakistani army. The difference is that there the Pakistanis are fighting in their own country and they have no reason to regard the enemy as anything other than terrorist bombers and criminals. I don’t expect they would be granted any kind of combatant status and the charge would be simple murder. So in some sense it is up to the army that captures them, but the gotcha is that they cannot pick and… Read more »
Kevin,
Are you seriously claiming that Hamas combatants do not disguise themselves as civilians in order to kill, injure, or capture IDF soldiers (and Israeli civilians for that matter) or that they are not in violation of of Article 37 of Protocol I?
Oh right, I forgot — Blackwater contractors — evil; Hamas — “freedom fighters”.
PS Goldstone has also apparently never heard of the law of distinction (except of course as it applies to Israel) but that is for another blog post, I suppose.
Anne,
Um, no — I certainly never claimed that, and good luck finding anything I’ve written that indicates otherwise. NGO Monitor, however, goes well beyond claiming that violations of art. 37 constitute the war crime of perfidy. Here is the language from your own report, ironically located in a section that describes the Goldstone Report’s supposed “distortions of international law”:
Paragraph 493 claims that the failure of armed Palestinian groups “to distinguish themselves from the civilian population by distinctive signs is not a violation of international law in itself.” This is patently false. The adoption of civilian dress is a violation of the IHL obligation against perfidy.
That statement is what distorts international law, not para. 493. Para. 493 correctly recognizes that IHL is not violated by the simple act of adopting civilian dress; the adoption of civilian dress must be involved in the killing, injuring, or capturing of an adversary, as stated in art. 37: “It is prohibited to kill, injure or capture an adversary by resort to perfidy.” NGO Monitor’s claim is thus fatally overbroad.
I look forward to NGO Monitor issuing a correction.
I believe Anne’s point was that you seem to relish the opportunity to accuse U.S. contractors of a war crime, based on rather incomplete facts, whereas she is straining to remember any time that you criticized Hamas for engaging in related and much more clearly (given that we know more facts) “illegal” behavior (such as dressing terrorists “combatants” up as ambulance workers) despite your many posts on Israel/Palestine.
That may or may not be unfair on Anne’s part, but responding by attacking a sentence in an NGO Monitor report is hardly responsive. A responsive response would be, e.g., (1) that’s because I think everyone knows that Hamas is engaging in war crimes, so there’s no need to blog about it; (2) that’s because I’m not especially interested in Hamas’ war crimes, but primarily in trying to get Western powers like the U.S. and Israel to adhere to international law; (3) I actually have blogged about Hamas’s illegal use of civilian garb here, here, and here; etc.
David,
I see, so it’s unimportant that NGO Monitor makes legal claims in its published reports — describing alleged “distortions” of international law by its opponents, whom it regularly accuses of waging “lawfare” against Israel — that are completely false. How convenient!
As for Anne’s “point,” it’s ridiculous, given how many times I have criticized Hamas’s “evident willingness to commit war crimes.” I have also argued that “the UN Human Rights Council has deliberately appointed individuals to investigate conditions in the Palestinian territories who were either actually biased against Israel or who at least could not avoid the appearance of bias.” And, of course, I have stated my belief on multiple occasions that, as a matter of international law, Israel is not occupying Gaza, a position that has not exactly won me friends on the Left.
None of that matters, of course, to you and the folks at NGO Monitor, for whom no criticism of Israel is acceptable. So you’ll forgive me if I don’t respond every time you or Anne accuses me of something.
I didn’t say it was unimportant, if you’re right that NGO Monitor misstated an issue of international law. I said that if someone from NGO Monitor says, “hey Kevin, how come you haven’t commented on violations of international law by Hamas that are similar but better-established than the ones you blogged about today involving the U.S.”, it’s not logically responsive to reply, “NGO Monitor misstated an issue of international law.” No one can force you to reply to Anne, me, or anybody else, but if you are going to respond, avoiding the issue raised and attacking the questioner without answering the question doesn’t advance matters one whit. As for your current response, it amounts to “I’ve criticized Hamas plenty of times in other contexts, so it’s absurd to think I’m soft on Hamas.” But that still doesn’t quite answer Anne’s question, which is why Blackwater’s maybe/possibly violating the prohibition on perfidy is blog news, but Hamas’s consistent blatant consistent and blatant violations of that prohibition is not. The obvious answer you could give is that no one expects Hamas to obey international law, and Hamas itself doesn’t purport to, but we hold the U.S. to a different standard, and the… Read more »
Kevin,
Your go to retort, “to NGO Monitor, no criticism of Israel is acceptable”, never fails to amuse.
On a more substantive note, the context and implications of Goldstone and our critique were clear (except I guess to you — what a shock): Goldstone turned a blind eye to explicit and overwhelming documentation of Hamas combatants disguising themselves as civilians in order to goad and trick IDF forces (a clear example of perfidy) and then had the gall to claim that such a practice was not a violation of international law. His failure to even mention Article 37 (or the law of distinction) in that context (though of course, he managed to find that it was Israel that was guilty of perfidy) and to go even farther and claim that such practices by Hamas were legal under IHL was disingenuous to say the least. You can justify it all you want — but hey, whatever helps you sleep at night.
Anne, Seriously, your intellectual dishonesty is just staggering. You are lying when you allege that Goldstone claims that “Hamas combatants disguising themselves as civilians in order to goad and trick IDF forces (a clear example of perfidy)” is “not a violation of international law.” And you are lying when you allege that he “fail[s] to even mention Article 37 (or the law of distinction) in that context” and that he “go[es] even farther and claim that such practices by Hamas were legal under IHL.” Here, again, is para. 493, which you selectively — and obviously intentionally — quote: 493. The reports received by the Mission suggest that it is likely that the Palestinian armed groups did not at all times adequately distinguish themselves from the civilian population among whom the hostilities were being conducted. Their failure to distinguish themselves from the civilian population by distinctive signs is not a violation of international law in itself, but would have denied them some of the legal privileges afforded to combatants. What international law demands, however, is that those engaged in combat take all feasible precautions to protect civilians in the conduct of their hostilities. The Mission found no evidence that members of… Read more »
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