Blackwater USA, Extraterritoriality and International Law
US diplomats in Iraq are currently unable to leave the Green Zone in Baghdad. On Wednesday Prime Minister al-Maliki complained about killings of Iraqi's in "cold blood". What has prompted these reactions? The shooting of at least eight Iraqi civilians (Iraqi officials estimate the number is closer to 20).
Blackwater says it was acting defensively in protecting a diplomatic convoy. They were responding to a car bomb which was nearby a diplomatic convoy, and the contractors opened fire on a car which mistakenly entered a traffic circle. Iraqi officials acknowledge there was a bomb, but argue the contractors shot wildly. This is only the latest in a long line of shootings.
Blackwater has been hired to provide security for diplomats, and there are a number of troubling accounts of overzealous contractors. NPR has a good story, and Terry Gross has an outstanding interview with Jeremy Scahill back in March. As an aside, the company's activities are not just limited to Iraq, Blackwater provided security in post-Katrina New Orleans in a no-bid contract.
Since the renaissance, wealthy states have hired mercenaries to fight. But the use of them has increased dramatically under the Bush administration. This strikes me as especially troubling. First, these private contractors are forced to sign secrecy agreements so their family members never know how or why they may have died. Family members of 4 deceased contractors have brought a suit seeking information regarding the deaths. Also, these contractors are paid substantially more than American GI's, some earning six-figures. Most importantly, casualty numbers are unclear and the rules of engagement for these forces is unregulated. In this way, the ordinary costs of a conflict, grieving families, numbers of dead, limits on the use of force, are minimized and hidden which helps the executive perpetuate the conflict.
Without getting into the broader debate about the Iraq conflict, I'd like to tie this problem into the rule of law. This and the other shootings present an interesting legal problem; is Blackwater subject to tort laws, criminal law, or international law? The answer is unclear.
These contractors are in a legal vacuum, and though Congress is pushing the Department of Defense to issue regulations that process takes time and should have taken place much earlier.
Broadly speaking there has been a real reluctance on the part of the United States to engage in international treaties in the last couple of decades. But international legal problems still exist. During this time I think we have seen a sharp rise in extraterritorial lawsuits (EU actions against Microsoft, the Alien Tort Claims Act, etc.) which use the courts of one nation to govern conduct which occurred wholly outside that state. The international problems still exist though, and courts are faced with difficult decisions and interpretation of foreign law. The US cannot continue to withdraw from international law-making without serious consequences. I'd argue these problems will be played out in suits far after the US leaves Iraq; and a better engagement with international law could have alleviated many of these problems.
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Article 47 of the Additional Protocol II to the 1949 Geneva Conventions states that a mercenary is a person who “is neither national of a party to the conflict nor a resident of territory controlled by a party to the conflict”. As most of the Blackwater ‘mercenaries’, it is assumed, are US nationals it appears that they are not considered mercenaries in the meaning of art. 47. However, Blackwater openly admits to employing non-US nationals, say, South African and Chilean; countries that cannot be considered parties to the conflict and such national could thus be considered as mercenaries. In this respect, it is worth remembering that the US has not yet ratified Additional Protocol II since signing it in 1977. Thus, the wording of art. 47 would only apply to the US if it can be considered customary international law. A careful guess would be that this is not the case.
Now, this does not mean that the Blackwater soldiers, in the meantime, are not subject to Iraqi law. This, of course, would be the most plausible option depending on the relevant Iraqi law, however, and the agreement under which they operate in Iraq. Likewise, the Blackwater soldiers could be subject to US law, either civilian or military (the latter rather unlikely though). Perhaps Alien Tort Claims Act under US law could provide inspiration for the bereaved relatives?
Nevertheless, some interesting observations on international law in general. It is clear for anyone to see that the landscape of international law is changing (and has been for some time). The role of non-state actors play a significant and increasing role as aides and abiders in international law-making but have yet a smaller role to play as subjects and objects of international law. It may be argued that this tendency is only increasing. This is supported by the calls for regulation, for instance with respect to the area of global warming, by some leading international corporations and companies. This is done based on the sentiment that regulation will relieve the corporations from the uncertainty that inevitably exists when nation states constantly threaten regulation as part of their policies. Additionally, calls for regulation are made in order to get a chance to actually shape the regulation and thus exercise some influence and, finally, in order to improve images of, in this case, greenery. No doubt international law is heading an interesting way……..