Book Discussion “Outsourcing War and Peace”: Contractor Accountability as a Barrier to SOFAs

[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. 

The United States, however, had moved to a position far away from its World War II-era SOFAs.  It wanted not concurrent jurisdiction, but rather exclusive jurisdiction over all three categories, subject to a right of waiver (i.e., as in Order No. 17, the United States could decide not to exercise its jurisdiction and turn the affected person over to the Iraqis for trial).  This position reflected in a sense the reconfiguration of U.S. forces in the Iraq War—contractors were in fact an essential part of the force. From that perspective, it was reasonable because any military command would necessarily view the justice system as an essential incident of command authority over the force.  No command authority would want that power to be exercised by an outsider.

Similarly, however, the Iraqi position did not—contrary to much of the American press at the time—necessarily reflect an attitude inherently hostile to the United States.  It reflected the reasonable concerns of a state.  The requests made by the United States clearly undermined its sovereignty.  The United States had demonstrated a reasonable level of accountability for uniformed service personnel—the numbers of court-martials and non-judicial punishments of personnel from the Iraq War were historically at least in line with the numbers from prior conflicts in the era after World War II.  But this was not the case for civilian contractors, for whom thousands of incidents of violence involving harm to civilians had essentially gone both uninvestigated and unpunished.

It seems reasonable to conclude that the effort to obtain a SOFA in Iraq, and then also to leave a force behind in Iraq, failed because of the lack of accountability for civilian contractors.

Thus the accountability issue had the gravest possible repercussions for politico-military relations with Iraq.  This situation seems to be playing itself out again today in Afghanistan. President Obama, in his recent speech from Afghanistan, spoke of a “strategic partnership” and a “transfer of security responsibility to Afghanistan in 2014.” But his remarks were strikingly devoid of details about the post-2014 relationship.  And there is one major reason for that ambiguity:  a status of forces agreement remains to be concluded that will cover the forces America proposes to leave behind, which are likely once more to be heavy with contractors.  Karzai and his senior advisors are said to have objected vehemently to the notion that the contractors would have immunity.  Again the contractor immunity issue is the fly in the ointment in dealings between the two allies.

These examples show how contractor immunity undermines America’s dealings with host nations and stands in the way of more flexible force deployments in the future.