In association with the International Commission of Jurists

Symposia

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

[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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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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16 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 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. In my first post, I outlined four potential mechanisms of accountability and constraint that could be better deployed to try to ensure that foreign affairs contractors respect various public values.  The first such mechanism is the most obvious: pursuing criminal prosecutions or civil tort suits against contractors who commit abuses. With regard to criminal prosecution, our current system of enforcement is seriously flawed in a number of respects.  To begin with, there are gaps in the Military Extraterritorial Jurisdiction Act (MEJA), the primary law that gives U.S. courts the power to try contractors when they are accused of committing serious abuses. That statute does not clearly govern contractors who work for agencies other than the Defense Department, such as the State Department contractors involved in the Nisour Square incident in which Blackwater employees allegedly fired into a crowd in Nisour Square in Iraq, killing 17 people.  It is vital that Congress close this gap, and efforts are underway to do so in the Civilian Extraterritorial Jurisdiction Act (CEJA), sponsored by Senator Patrick Leahy (D., Vt.), former Senator Edward Kaufman (D., Del.), and Representative David Price (D., N.C.), which is now languishing in Congress despite support from the administration and industry. But perhaps even more significantly, we need to restructure our institutions of enforcement to build more expertise and set better incentives for pursuing these cases. For many years, responsibility for contractor abuse cases lay with U.S. Attorneys’ offices around the country, and lawyers there didn’t necessarily have the experience needed to bring forth these difficult cases or to treat them as a high priority. I argue that we need a more clearly designated office within the Department of Justice to focus on these types of cases, and that we should require this office to report regularly to Congress concerning its efforts.
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15 May

[Allison Stanger is Russell J. Leng '60 Professor of International Politics and Economics and Chair of the Political Science Department at Middlebury College. She is the author of One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy.] This is the first day of our book symposium on Laura Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Related posts can be found below. Laura Dickinson has written a compelling and thoughtful inquiry into the larger implications of the “profound shift in the way the US government projects its power overseas.” Her focus on the enormous threat that contracting poses to public values highlights an important consequence of this transformation that has too often gone unacknowledged.  Her discussion of the four potential mechanisms of accountability and control frames that core challenge in a highly fruitful way.  While Professor Dickinson is well aware of the potential obstacles to effective functioning of these mechanisms, I wanted to use my post to highlight one that is all too easy to overlook: the impact of excessive contracting on governance and public values themselves. Decades of privatization mean that the business of government is increasingly in private hands, both in our foreign policy activities abroad and in domestic operations at home.  The basic pattern is striking.  In 2000, the Department of Defense spent $133.4 billion on contracts.  By 2010, that figure had grown to $367.8 billion, an almost three-fold increase.  In 2000, the State Department spent $1.3 billion on contracts and $102.5 million on grants. By 2010, contract spending had grown to $8.1 billion and grant spending had grown to $1.4 billion. In 2000, USAID spent $19.3 million on grants and $535.8 million on contracts.  By 2010, those figures had climbed to $8.9 billion and $5.6 billion, respectively. These explosive growth patterns are not confined to the national security realm.  For example, in 2000, the Department of Health and Human Services expended $4.1 billion on contracts. That figure had risen to $19.1 billion in 2010, a 366 percent increase.[1]  Contracts and contractors were also essential to both the Troubled Asset Relief Program [TARP] and the stimulus package. The operative rule of thumb for Republican and Democratic administrations alike has been to turn execution over to the private sector whenever possible. This shift in and of itself does not disastrous consequences make.  But when it is combined with general public distrust of government, Pandora’s box opens.  One additional statistic speaks volumes on this transformation. The number of people on the federal government payroll today is roughly the same as it was in 1966, yet the federal budget in that same time period has more than tripled in real terms.  Contractors, in part, fill that enormous gap. The result is that our government is today but a shadow of its former self.  It is big in terms of the amount of money it spends but small in terms of the number of people it employs to oversee that spending.  Government has effectively been hollowed out. There are obviously consequences for public values in this transformation.  As Professor Dickinson summarizes on page 10 of her book, “One of the core points of this book is that these public values ought to govern even when those acting are not governmental employees or representatives.”  One might legitimately ask, is this a realistic aspiration when government’s default option is to privatize whenever possible, often outsourcing oversight as well as implementation?  It is surely more challenging to uphold public values when government’s actions themselves undermine the public’s faith in the very legitimacy of public sector activity.  Moreover, do we really want to treat public servants and private employees as functional equivalents, or do we instead lose something very dear in blurring that line?  Who is to ensure that the public interest is upheld under such arrangements?
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15 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 first post in our discussion of Professor Dickinson's book. Links to the related posts can be found below. I want to thank Opinio Juris for offering me the opportunity to post on some of the central ideas contained in my recent book, Outsourcing War and Peace: Preserving Public Values in an Era of Privatized Foreign Affairs. The book starts from the observation that, over the past two decades, the United States has dramatically changed the way in which it projects its power overseas by outsourcing foreign affairs functions to an arguably unprecedented degree.  At the high point of the combined conflicts Iraq and Afghanistan, the U.S. Government had hired roughly 260,000 contractors—more contractors than troops—to do everything from support tasks, such as delivering meals to soldiers, cleaning their latrines, and maintaining battlefield weapons systems, to more combat-related functions, such as guarding bases, diplomats, and convoys.  At times, contractors even conducted interrogations.  And contractors continue to play a significant role in operating the drones that have become a central tool in our efforts to combat terrorism. All of this contracting poses an enormous threat to what we might call public values.  These values include the core value of human dignity as embodied in international human rights law, as well as the values embedded in international humanitarian law, such as the idea that the use of force is limited even during armed conflict.  In addition, other core values include transparency, democratic participation in decision-making, and accountability (sometimes referred to as the values of global administrative law).
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14 May

This week Opinio Juris is hosting a discussion on Laura Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Professor Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC. Her book addresses issues related to the increasing privatization of foreign policy functions of...

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27 Apr

[Valentina Azarov is a Lecturer in International Law and Human Rights, Al-Quds Bard College, Al-Quds University, Palestine (on leave)] This is the fifth response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post. Those who believe in the progressive development of international law but remain fully aware of the deficiencies of its enforcement, have good reason to view the proposed functional approach to the law of occupation with cautious optimism. However, there must be a further elaboration and concretization of its mechanism or process, lest this approach to operationalising the way the law of occupation is applied contributes to the law’s indeterminacy. This brief response therefore seeks to ask guiding questions and postulate some predicaments in order to elaborate the content of the functional approach, and explain the ways in which it relates to the binary, or on/off, approach. Some basic considerations include: what are the elements and purpose of the protective function of the law of belligerent occupation? How is this function expected to be fulfilled, operationally? The interpretation of the law of occupation I suggest is teleological and genealogical: conscious of the historical context of the law, the manner in which its provisions were drafted and the purpose they were meant to serve. Most contributions to this symposium have shared this interpretation, in that they have taken as a starting point the fact that the law of occupation is charged with the arduous task of tying the hands of the occupier in order to safeguard against abuses of the law.  Given that belligerent occupation is a phenomenon of war, and that it would be unwarranted to assume good faith between enemies in wartime, no commonality of interest should be presumed to exist between the occupier and the occupied population. The law must thus guard against the occupier’s adoption of the ‘pick and choose’ approach, especially in situations where an occupier maintains ‘effective control’ but attempts to limit its scope of influence so as to claim that it has relinquished its responsibility in certain domains. The law of occupation was meant to protect the occupied population against such disingenuous, abusive attempts by the occupier to mask the extent of its continued influence over their lives.
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27 Apr

[Col. (Ret.) Pnina Sharvit Baruch is a Former Head of the International Law Department of the IDF Military Advocate General's Office] This is the fourth response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post. I am grateful for the opportunity to respond in brief to some of the points made in the excellent contributions of fellow bloggers. At the outset, as a former practitioner, I admit that I prefer functional approaches to the law over rigid dichotomies. From my experience, strict formulas are unsatisfactory when facing complex situations and the situation between Israel and the Palestinians is as complex as they come. As noted in my earlier post, I think it questionable to view the functional approach to occupation offered in some of the posts as reflecting the existing law, as opposed to lege ferenda. However, I set this question aside for present purposes and wish to discuss this concept on its merits. The underlying problem with the concept of "functional occupation" is that it takes a situation which does not possess the most fundamental feature of occupation – effective control – and insists on still calling it occupation. This is done not because the set of rights and obligations pertinent to occupation are suitable to such a situation, but rather in order to "prevent occupiers from relinquishing responsibility when control is transformed" and to ensure that "as long as an occupying party continues to exercise some degree of control, it will continue to be held accountable" (as Gross puts it). In other words the reasoning is not based on finding the suitable categorization of a given situation and applying the relevant rules thereto, but rather on deciding which rules should apply and then terming the situation accordingly. This is a conceptual problem. Even if one believes that certain obligations should be imposed even after effective control has ended, it may well be that the legal basis for imposing them lies beyond the limits of the law of occupation. This is my reading of the Al-Bassiouni judgment given by Israel’s Supreme Court.
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26 Apr

[Dr. Matthew Saul is a Research Fellow at the Norwegian Centre for Human Rights and Lecturer at Durham University, UK (on leave)] This is the third response in our Symposium on the Functional Approach to the Law of Occupation. Earlier posts can be found in the Related Links at the end of this post. Thank you to all of my fellow symposium participants for a very interesting set of posts. This symposium has clearly raised a number of very important issues. One point that I find particularly interesting is the scope for there to be a difference in the significance of the functional approach in the context of the establishment of an occupation and in the context of a reduction of an extant occupation. In this respect, I agree with Sari Bashi that the level of control over territory that is necessary for the commencement of the law of occupation is not the same as for its continuation. However, I think it is also important to recognize that there is likely to be a difference in the nature of the governance space that will surround the occupied functions in the two contexts. In the establishment context, the governance space that is left unregulated by the law of occupation (by limiting the application of the law of occupation to the functions undertaken by the external power) has a character that has been created by the target state and its people. In contrast, in the disengagement context, the governance space that is to be left unregulated can be expected to have been affected by the prior, more extensive occupation. Indeed, there is a risk that the scope for the level of regulation of the law of occupation to be reduced in line with a reduction in the direct control of the occupiers will encourage an occupier to exert more influence on domestic politics in the period when it is in full control of the territory. This would be as a means of ensuring that when it reduces control – and thereby benefits from a reduction in obligations and an improvement in the way in which its involvement is projected – matters will still develop across the whole of the territory in accordance with its preferences. One way to address the scope for the functional approach to be exploited by occupiers could be for some criteria to be posited as to the sort of conditions that must prevail in the space created by a partial disengagement for the functional approach to be activated. In this respect, Aeyal Gross recognizes that there is an issue, when he suggests that ‘the functional approach must not mean that occupiers are relieved of their duties when there is no one else exercising them, or when the occupier’s behavior prevents a legitimate sovereign from exercising them.’ The two aspects highlighted by Aeyal could serve as criteria for determining when it is appropriate to adopt the functional approach in the context of disengagement, but both could benefit from more detail. For instance, should there be a quality threshold in terms of the exercise of certain functions in the space left by disengagement?
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