In association with the International Commission of Jurists

May 2012

19 May

Earlier today, Russia called on the ICC to investigate possible war crimes committed by NATO forces during its bombing campaign in Libya: The International Criminal Court should look into all cases of NATO airstrikes in Libya that resulted in civilian deaths, the Russian Foreign Ministry said. "We welcome the decision of ICC Prosecutor Luis Moreno-Ocampo to consider alleged violations of international humanitarian...

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18 May

[Scott Horton is a Contributing Editor of Harper's Magazine and a Lecturer-in-Law at Columbia Law School.] This is the fourth day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. It’s useful generally to turn the accountability issue on its head and to view the question from the sovereign’s perspective.  Laura’s book takes a view of this question largely from the perspective of a single sovereign, the United States.  She’s done a remarkable job of developing that, recording the efforts to exercise accountability controls, the failures and the possible paths going forward.  But there are other sovereign players in the game, and their attitudes have significant ramifications. Both Iraq and Afghanistan furnish good examples.  In Iraq, few decisions of the Coalition Provisional Authority proved more controversial or cast a longer shadow that CPA Order No. 17, which granted immunity from prosecution under Iraqi criminal law to contractors deployed alongside coalition troops.  That rule, issued on the last day of Paul Bremer’s service as America’s proconsul in Baghdad before power was officially surrendered to an interim civilian government, stayed in place for many years largely as a result of the dysfunctionality of the civilian government that took its place—Iraqi political figures pretty much across the board decried it as an act of colonialist hubris. In both Iraq and Afghanistan, the United States encountered extraordinary difficulty in concluding a status of forces agreement (SOFA).  Iraq may furnish an interesting case-study. Public reporting about this process has been limited and focused largely on high-level political issues.  However, persons close to the negotiations on both sides have confirmed that the most contentious single issue related to the treatment of civilians and civilian contractors.  The Pentagon viewed both DOD civilians and contractors as an essential part of the force deployed; accordingly the United States insisted that both be covered by immunity provisions under the SOFA.  The Iraqis replied that they were essentially prepared to enter into a SOFA along the lines of those that the United States had concluded in the years following World War II—they would have concurrent jurisdiction with the United States over U.S. personnel stationed in country, and would expect to defer to the United States with respect to uniformed service personnel.  They also expressed willingness to compromise with respect to DOD civilians. As for contractors, however, Iraq held firm to the notion that their law should control and that contractors should be covered by it and subject to prosecution in Iraqi courts. 
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18 May

Reuters reports that the G8 leaders are meeting today amidst further fears about the Eurozone crisis and the possibility of a "Grexit". According to the Independent, UK PM Cameron will pressure German Chancellor Merkel to do more to save the euro. The Washington Post compares the opposing points of view of Germany and most other nations on how to improve growth in Europe. Over on...

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18 May

[This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.] The dean-emeritus of US government law of war lawyers, Hays Parks, spoke in passing a year ago about private security contractors and the law of war at a conference in honor of Michael Walzer.  Parks noted that for better or worse there was no going back to a world in which even the use of force, let alone other matters, was confined to formal government military forces - that bridge had been crossed with such things as State Department security and much else.  But he expressed concern with the way in which it had come about, with insufficient attention to the issues of accountability.  And also regret, from the standpoint of the laws of war, that certain of these functions had ever been allowed to be privatized. Because, as Parks says, the bridge has been crossed, I'm fundamentally in agreement with the concerns that Laura Dickinson's splendid book raises about accountability.  Point being that one can be a government laws of war lawyer and share these concerns, as Parks does; and equally share concerns for establishing mechanisms that lie within the realistic possibilities of legal policy for addressing the accountability concerns.  Contractual mechanisms are a very important category of that, and the questions raised below are less about principle than cautions about the limits of contractual mechanisms.  Like Chris and several other OJers, my teaching day-job is in business, finance, contracts, and law and economics, and I also draw here on experience as the board chair and general counsel for several NGOs engaged in much cross border development finance and related contracting - microcredit and all that.  So let me run through a standard set of law and economics issues that might arise in these attempts to regulate via contract: 1. Might contract mechanisms under-deter or over-deter the use of private contractors for particular functions (or under some circumstances, might they do both)?  One of the things I most like about Dickinson's nuanced approach to the possibilities and limits of contracting mechanisms is the awareness that contract enforcement in our civil court system is not well suited to the kinds of situations that would most concern us in the situation of private contractors, for example, using force in some foreign situation of high insecurity if not straight up conflict.  This is so, I think, for contract claims as well as tort claims.  For example, the possibility of wrongful death of a foreign national in some not-exactly-quiet-not-quite-war-zone by a security contractor is not very well suited to the social setting in which the US civil litigation system of wrongful death has meaning - which is a settled domestic legal system in which the participants all share certain expectations about what is okay and not okay in the circumstances.  Moreover, much of that settled, legitimate, domestic system has to do with situations of risk in which we as a society accept that there are crucial social benefits that lead us to accept risks to life and limb, even ones that implicate wrongfulness. I am skeptical that those shared social assumptions, which deeply inform and legitimate our domestic civil legal system, can be applied well in all these other situations.  I doubt that the adjudicators think they can do so, either, even if tasked to do so.  The tendency is either to hold contractors to a stricter standard than one might think is efficient to the ends - ends, however, which in quasi-war zones are themselves contested - for which some modicum of force is justified.  In that case, contractors will be over-deterred once they understand the costs they must internalize.  Or else the adjudicatory system, concerned that it is being asked to apply purely domestic standards to highly contingent and fundamentally different conditions of conflict, will excuse too much, whether overtly or indirectly, for fear of penalizing unfairly something where command and control, and ultimately accountability, ought to have rested with the government agency, not the contractor.
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17 May

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. Following-up on my earlier post on the difficulty of changing contracting practices by executive agencies, I thought I’d highlight a few quotes from a January 2011...

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17 May

[Jeffrey K. Walker is Assistant Dean for Transnational Programs at St. John's University School of Law] This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. With Outsourcing War and Peace, Laura Dickinson did a remarkable job canvassing an area of the law that has received a significant amount of attention and scholarship since the publication of Peter Singer’s landmark 2003 book, Corporate Warriors. Laura has done the heavy lifting for those of us who haven’t been able to keep up with this burgeoning research, laying out a tightly crafted survey of the scholarship while adding a lot of value to the debate with her “now where do we go from here?” recommendations for change. So I loudly applaud her fine efforts. Because Laura has bitten off a very big scholarship challenge with Outsourcing War and Peace, the work does suffer a bit at the margins from being overly broad in some areas that call for deeper and more nuanced analysis and discussion. For example, in discussing the possibility of broadening the tort liability of contractor personnel engaged in direct support of military activities, she comes down on the side of allowing Federal Tort Claims Act (FTCA) immunity for contractors, albeit with the narrower test for immunity proposed by the dissent in the D.C. Circuit’s Saleh case. While I agree that an overly broad definition of FTCA immunity is a mistake and the majority in Saleh got this dangerously wrong, I would have liked to have seen deeper discussion of the more fundamental issues at play here. Although contractors may appear to be “integrated into combat activities” as Judge Silberman claims in his majority opinion, how truly integrated can contractor personnel be when they are not subject to military command authority with the penal sanctions faced by military members for disobeying, can quit whenever they really don’t like something they’ve been told to do or not do, and ultimately do not enjoy combatant immunity for their otherwise criminal acts? Laura’s discussion would have benefited from drilling deeper here. I was very pleased by her recommendations concerning enhancing the enforcement of the Military Extraterritorial Jurisdiction Act (MEJA) by establishing a DoJ entity specifically tasked with investigating and prosecuting MEJA cases. Let’s face it, these cases have no natural constituency among the notoriously parochial U.S. Attorneys unless they are generating a lot of press. In most cases, no U.S. Attorney wants the responsibility, trouble, or expense of a MEJA prosecution with its remote witnesses and evidence, expensive travel headaches, and translation difficulties. As a guy who, with the strong support of my then-boss, unsuccessfully proposed a plan to deploy collateral damage/war crimes/friendly fire investigation teams with the coalition maneuver forces in the 2003 Iraq invasion, I find her concern about the importance of investigative capacity on the ground to be absolutely spot on.
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17 May

We should have known that it would take someone on the Hill about ten minutes to go after Eduardo Saverin and tax renunciants after all the play his exit has been getting.  Charles Schumer and Bob Casey are introducing legislation entitled the Expatriation Prevention by Abolishing Tax-Related Incentives for Offshore Tenancy Act to make renunciants pay more dearly for their inconstancy....

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17 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. While they are not often viewed in this way, government contracts can serve as a tool for implementing public values such as human rights or humanitarian law principles.  In the domestic setting, with privatized prisons, health care, and welfare-to-work programs, we actually have some experience writing public values into contracts and including them in the contract management and oversight regime.  In the book, I compare domestic contracts of this sort and foreign affairs contracts – and the foreign affairs contracts fall short. The contracts, in my view, fail to specify with sufficient precision terms that would require appropriate and meaningful training in particular human rights and humanitarian law principles, as well as vetting of potential contractor employees for problematic human rights records and other issues.  In the wake of the Nisour square shooting, for example, a State Department report noted that while the U.S. Embassy in Iraq “provides comprehensive guidance on permissible uses of deadly force and the circumstances under which deadly force can be used,” that guidance is less explicit on how deadly force should be used.” (at 6).  The report emphasized the discrepancies in rules applicable to state department and defense department contractors.  And at the time of the Abu Ghraib prison abuse scandal, military reports emphasized the poor vetting and training of contract interrogators and translators. To be sure, since then the Bush administration and the Obama administration have made strides to improve the contracts.  A Memorandum of Understanding harmonized key differences in contract terms among the agencies.  Defense recently implemented a rule that laid out much better training requirements for security contractors.
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17 May

[Steve Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law.] This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. One needn’t look far for proof that the issues raised by Laura Dickinson’s Outsourcing War and Peace with regard to the absence of liability for military contractors are at the forefront of contemporary law and policy. If outsourcing is here to stay, then it seems only right to ask how we might ameliorate some of the concerns that such privatization raises. And although I think Deborah Pearlstein is exactly right to link the problems of contractor liability to the broader “waning public accountability for national security and military affairs more generally,” the specifics also matter, since a host of recent legal developments have focused on the case for (or against) contractor accountability as such. To that end, Professor Dickinson, who champions the need for greater civil and criminal liability, already noted last Friday’s decision by the en banc Fourth Circuit in the al-Shimari case concerning whether victims of torture at Abu Ghraib can pursue state law tort claims against the military contractors allegedly at fault (for now, they can). And we should hear soon from the Court of Appeals for the Armed Forces, which heard argument in April in United States v. Ali on the question whether the Constitution allows the military to court-martial civilian contractors accompanying U.S. forces in the field during overseas “contingency operations.” But for all the attention that al-Shimari and Ali have received from observers like Professor Dickinson, I want to suggest in this post that we would do well to also consider United States v. Brehm—a less-noticed appeal argued yesterday before a three-judge Fourth Circuit panel—as a reason to search for nuance in the quest for a coherent approach to contractor liability.
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17 May

The trial against Ratko Mladic at the ICTY continued today, with testimony today covering the systematic execution of 8,000 Muslim men and boys. However, due to prosecutorial error, Judge Orie has suspended the presentation of evidence indefinitely, originally to begin May 29. Foreign Policy takes us back to the early days of the tribunal with this graphic representation. In Libya, Saif al-Islam Gaddafi is refusing...

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16 May

This is the second day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. One of the many things I like about Professor Dickinson's book is the broad approach it takes to thinking about accountability. When I ask my law students to engage in problem-solving hypotheticals – i.e. Here’s a problem in the world, you are X individual/organization/state worried about the problem, what should we do about it? – their initial instincts are to look to the courts. Who can we sue? For U.S. trained law students, whose first year of schooling is traditionally devoted entirely to learning the judicial processes of the common law, this is hardly surprising. But Professor Dickinson's book helps us think more creatively, and demonstrates that accountability, in the sense of deterring undesirable conduct and demonstrating consequences for it when it happens, can be achieved through many tools. Indeed, for a setting as complex as the conduct of private security contractors – who straddle civil and military affairs, public and private interests, foreign and domestic settings – it would be surprising if any one accountability tool was sufficient. Still, part of the challenge to finding solutions to the accountability gap she identifies in this special setting is, it seems to me, that contractor accountability is part of a larger problem of waning public accountability for national security and military affairs more generally. The problem is not unique to contractors. Take the possibility Professor Dickinson raises (and I suspect will address further) of subjecting civilian contractors to the Uniform Code of Military Justice. The UCMJ is the set of federal statutes establishing penal and disciplinary rules for dealing with misconduct by members of the U.S. military. As Professor Dickinson understands, the application of the military justice system to civilians raises a host of constitutional concerns, in particular the framers’ strong concern that military rule not be permitted to bleed over into civilian life. Beyond that, though, the UCMJ system through which soldiers might be held accountable for exactly the same kinds of conduct that most concern us about contractors is also fraught with problems. As Human Rights First reported back in 2006, efforts to prosecute soldiers responsible for the worst kind of detainee treatment, resulting in the death of detainees in custody, often foundered on just the kind of investigative and evidentiary issues that appear in the contractor setting as well.
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