07 Nov 2007: ISS Today: Accountability and Immunity in the Blackwater Debacle

7 November 2007: Accountability and Immunity in the Blackwater Debacle

 

In the wake of the September 16 incident in which Blackwater security contractors allegedly shot and killed 17 civilians in Baghdad, the US State Department has caused an uproar for allegedly offering limited immunity to Blackwater employees involved in the incident. Joseph Biden, the Senate Foreign Relations Committee Chairman was recently reported to have called on Secretary of State Condoleezza Rice to explain whether Blackwater employees had indeed been offered protection from prosecution for their involvement in the September 16 shooting.

 

It must be recalled that the Coalition Provision Authority (CPA) Order 17 (dated June 27, 2004) grants Blackwater and other private security companies immunity from Iraqi law. Reports about Blackwater’s alleged immunity from US law are a serious cause for concern. As it has been observed, the granting of such immunity (no matter how limited) could significantly complicate efforts to bring charges against the Blackwater security guards if they are implicated in the course of the investigation into the September 16 incident.

 

The issue of Blackwater’s alleged immunity should not be considered in isolation. It should be considered within the context of the use of force under international law. The US and its coalition forces attacked and invaded Iraq in contravention of international law. From the invasion of Iraq, to the use of private security contractors, to the killings of innocent civilians, international law is blatantly being violated. The invasion of Iraq occurred without Security Council authorization, and no justification for the invasion could possibly be given on the grounds of ‘self-defence’. The alleged granting of immunity is therefore a continuation of the violation of the UN Charter’s prohibition on the use of force, which is essentially threatening the legal order that has governed the world since the establishment of the United Nations.

 

International law has never recognised immunity in respect of private security companies. International law only recognizes sovereign immunity - which involves the immunity of the head of a foreign state, the government of a foreign state, or a department of such a government - and diplomatic and consular immunity, which deals with the immunities and privileges granted to foreign diplomats and consuls. Even where the US Government contracts Blackwater, and its security guards swear the same oath of loyalty to the U.S. Constitution as members of the US armed forces do, this does not make Blackwater a department of the US Government. Even if Blackwater were considered as a part of the US Government, that still wouldn’t make the granting of immunity legitimate. Human rights are now given high status in international law and there is no justification for heads of state and governments, let alone private security actors, to be absolved for abusing human rights.

 

Under the principle of immunity, there is what is known as ratione personae, which attaches immunity to a person because of his status or office, and ratione materiae, which relates to the acts performed in an official capacity. Neither of these principles apply to private security contractors and their actions. They are also not entitled to diplomatic immunity, even in cases where they are protecting diplomats in a foreign state. The point being made here is that whether or not Blackwater operates as an extension of US foreign policy, it does not officially represent the US Government but is only contracted to protect its interests.

 

Granting immunity to Blackwater and its employees, whether in Iraq or in the US, leaves the question of human rights violations unaddressed. The September 16 shooting left 17 human beings dead. If the Blackwater employees were acting in self-defence, this fact should be proven in a court of law which has jurisdiction over the area where the offence was allegedly committed. As there appears to be a dispute of fact on whether Blackwater acted lawfully or otherwise in shooting the 17 Iraqis, this should be a matter determined an Iraqi court instead of the matter being handled by the US.   

 

If the US Government had confidence in the Iraqi courts in trying the late former President of Iraq, Saddam Hussein, what should stop the employees of Blackwater from being tried by the Iraqi courts? It is unfortunate that the world’s legal order is constantly becoming one of double standards, one law for Peter and another for Paul. The developed nations seem to dictate what is right or wrong, overlooking the principles of international law when doing so suits their purposes. Iraqi justice should be done in order to bring closure to the Iraqi people. 

 

The granting of immunity to members of Blackwater allegedly involved in the shootings, and the use by the US of unregulated and non-accountable private security actors is unacceptable. In a press release dated October 24, 2007, Blackwater issued a statement supporting recommendations made by the U.S. Department of State to increase the accountability of contractors working in Iraq. While this statement is most welcome, the world is now awaiting a statement from Blackwater requesting an immunity waiver from the US and Iraqi Governments so that its employees can face the Iraqi courts and answer to the allegations made against them. This would be a truly meaningful step by Blackwater if they are really interested in ensuring the accountability of contractors working in Iraq.

 

Sabelo Gumedze, Senior Researcher: Defence Sector Programme, ISS Tshwane (Pretoria)

 

For an alternative view on the question of immunity being offered to Blackwater personnel, click here.