Last Sunday, employees of Blackwater USA -- one of the main private providers of security within Iraq, fired randomly at Iraqi civilians in a crowded Baghdad square, killing 10 innocent bystanders and a policeman.
The shooting was the last straw for Iraqi tolerance of the company, which has been involved in seven other similar incidents. On Monday, the Iraqi government revoked the company’s license to operate in the war-torn country. "This crime has generated a lot of hatred in the government and the people against Blackwater," Prime Minister Nouri al-Maliki said, adding that he wouldn’t tolerate the “killing of our citizens in cold blood”.
"For their own interests, the Americans should hire a new company to protect their people so they can move freely,” the prime minister added.
(Click here to see an interview with Jeremy Scahill, author of Blackwater: The Rise of the World's Most Powerful Mercenary Army)
According to an article on Salon.com, suspending Blackwater’s operations may be all the Iraqis can do. Human rights group say the uncertain legal status of private security firms in Iraq -- straddling international law, U.S. regulations and Iraqi legislation -- allows them to act with virtual impunity. A law drawn up in 2004 by the Coalition Provisional Authority (CPA) -- the now-defunct American occupation government -- grants such firms immunity from prosecution under Iraqi law. Moreover, it’s not clear what law, if any, applies if there are any attempts to prosecute Blackwater in the United States.
Peter W. Singer, an expert on private security contractors who is a senior fellow at the center-left Brookings Institute, says even if the Iraqi government wants to prosecute those contractors, the U.S. government would have to accede to it. And that, Singer says, is almost impossible.
"The question for the U.S. is whether it will hand over its citizens or contractors to an Iraqi court, particularly an Iraqi court that's going to try and make a political point out of this," Singer says.
If the U.S. isn’t willing to do so because of concerns that the trial will be politically motivated, he adds, there's a new question at hand. "If we really say that openly, doesn't that defeat everything we heard in the Kabuki play last week with [General David] Petraeus and [U.S. Ambassador Ryan] Crocker, that everything was going great? What happens if we say, 'No, we don't think you can deal with this fairly in your justice system?'"
This leaves international and U.S. laws. But again international law is probably out as the U.S. had established a precedent of rejecting the jurisdiction of international courts. For example, the U.S. is not a member of the International Criminal Court in the Hague. (In 2005, the Iraqi government announced its decision to join the court; it reversed that decision two weeks later.)
Meanwhile, there is no legal construct in the U.S. specifying potential consequences for crimes committed by any of the 182,000 contractors operating in Iraq. Uniformed military personnel are subject to the Uniform Code of Military Justice, which also applies to “persons serving with or accompanying an armed force in the field". But legal experts told Salon that there’s little clarity on what law applies to the contractors involved in Sunday’s shooting, and that the Bush administration has shown little desire to take action against contractor malfeasance.
Last June, the Congressional Research Service -- a non-partisan research arm of Congress -- released a report on private security contractors in Iraq that gave a bleak picture of prospects for prosecution under U.S. law, referring at one point to "the U.S. government's practical inability to discipline errant contract employees."
In Iraq, the government may not even have the authority to enforce the one action it’s taken so far, the revocation of Blackwater's license as it’s not clear whether the company has a license in Iraq or not.
On June 16, the Washington Post reported that "Blackwater USA ... [has] not applied, U.S. and Iraqi officials said. Blackwater said that it obtained a one-year license in 2005 but that shifting Iraqi government policy has impeded its attempts to renew."
On Monday, Lawrence T. Peter, the director of the Private Security Company Association of Iraq, an industry trade group, told the Post that Blackwater did have a license. But he seems to contradict his own organization’s Web site, which lists Blackwater as in the process of obtaining one.
Whether the Iraqis revoke Blackwater’s license or let it continue its operations, this company and all other contractors “are beyond the reach of the justice process in Iraq. They can not be held to account," says Scott Horton, who chairs the International Law Committee at the New York City Bar Association. "There is nothing [the Iraqi government] can do that gives them the right to punish someone for misbehaving or doing anything else."
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