[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.
