Since the law would not apply to them; perhaps people should just
return to the Law that encompasses all!
uqtulu hum haithu thaqiftumu hum!
On Sep 18, 2007, at 1:36 PM, Nusantara wrote:
Inilah yang berlaku apabila sesebuah negara hilang kedaulatannya
dan diduduki oleh tentera asing, walaupun mungkin ia nampak macam
merdeka dan mempunyai sebuah kerajaan yang dikatakan dipilih oleh
rakyatnya, siap dengan Presiden, Perdana Menteri dan Parlimennya
sendiri. Namun ia tidak boleh menguatkuasakan undang-undangnya di
buminya sendiri dan tidak boleh membela nasib rakyatnya sendiri
tanpa anggukan daripada pihak penjajah, walau apapun retorik yang
diperkatakan. Yang terus menderita ialah rakyatnya, sedangkan pada
masa yang sama orang-orang asing bermaharajalela dan terus mengaut
kekayaan negara untuk dipunggah keluar.
What happens to private contractors who kill Iraqis? Maybe nothing
Blackwater USA employees are accused of killing several civilians,
but there might not be anyone with the authority to prosecute them.
By Alex Koppelman and Mark Benjamin
Sept. 18, 2007
An incident this past weekend in which employees of Blackwater USA,
a private security firm that has become controversial for its
extensive role in the war in Iraq, allegedly opened fire on and
killed several Iraqis seems to be the last straw for Iraqi
tolerance of the company. Iraqi government officials have promised
action, including but not limited to the suspension or outright
revocation of the company's license to operate in Iraq.
But pulling Blackwater's license may be all the Iraqis can do.
Should any Iraqis ever seek redress for the deaths of the civilians
in a criminal court, they will be out of luck. Because of an order
promulgated by the Coalition Provisional Authority, the now-defunct
American occupation government, there appears to be almost no
chance that the contractors involved would be, or could be,
successfully prosecuted in any court in Iraq. CPA Order 17 says
private contractors working for the U.S. or coalition governments
in Iraq are not subject to Iraqi law. Should any attempt be made to
prosecute Blackwater in the United States, meanwhile, it's not
clear what law, if any, applies.
"Blackwater and all these 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."
L. Paul Bremer, then the head of the Coalition Provisional
Authority, the initial occupation government of Iraq, issued CPA
Order 17 in June 2004, the day before the CPA ceased to exist.
"Contractors," it says, "shall not be subject to Iraqi laws or
regulations in matters relating to the terms and conditions of
their Contracts."
The Iraqi government has contested the continued application of
this order, but because of restraints that inhibit the Iraqi
government from changing or revoking CPA orders, Order 17
technically still has legal force in Iraq. Furthermore, as Peter W.
Singer, an expert on private security contractors who is a senior
fellow at the center-left Brookings Institute, points out, in order
for the Iraqi government to prosecute those contractors, the U.S.
government would have to accede to it. And that, Singer says, poses
a whole new set of thorny questions.
"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 United States is not 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?'"
That leaves international and U.S. law. But international law is
probably out. Even before the Bushadministration, the United States
had established a precedent of rejecting the jurisdiction of
international courts. The United States is not, for example, a
member of the International Criminal Court in the Hague. (In 2005,
the government of Iraq announced its decision to join the court; it
reversed that decision two weeks later.)
U.S. law, meanwhile, is hopelessly murky. More so than in any of
America's previous conflicts, contractors are an integral part of
the U.S. effort in Iraq, providing logistical support and
performing essential functions that were once the province of the
official military. There are currently at least 180,000 in Iraq,
more than the total number of U.S. troops. But the introduction of
private contractors into Iraq was not accompanied by a definitive
legal construct specifying potential consequences for alleged
criminal acts. Various members of Congress are now attempting to
clarify the laws that might apply to contractors. In the meantime,
experts who spoke with Salon say there's little clarity on what law
applies to contractors like the ones involved in Sunday's incident,
and the Bush administration has shown little desire to take action
against contractor malfeasance.
In June of this year, the Congressional Research Service -- a
nonpartisan research arm of Congress -- issued a report on private
security contractors in Iraq that included a discussion of their
legal status. The report's authors 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."
It's not clear that Blackwater even has a license to revoke
The problem is that no one seems quite sure what law, if any, would
apply to security firm contractors, and any potential applications
are untested and would be vigorously challenged. Uniformed military
personnel are subject to the Uniform Code of Military Justice, and
"persons serving with or accompanying an armed force in the field"
are technically subject as well. But the application of the UCMJ to
these contractors would undoubtedly be challenged on constitutional
grounds, and even if it were to hold up in court, the CRS report
noted a particular irony: At least one court has held that "a
serviceman who had been discharged was no longer amenable to court-
martial." In other words, Blackwater could protect its employees
from the UCMJ simply by firing them.
Another potential avenue for prosecution is the Military
Extraterritorial Jurisdiction Act of 2000, or MEJA, which applies
to civilians. Originally written only to cover civilian employees
of the Department of Defense and contractors working for the DOD,
it was changed after the Abu Ghraib scandal, which involved
contractors not working for DOD, to cover persons "employed by or
accompanying the Armed Forces outside the United States." But even
that definition might be too narrow to apply to the Blackwater
employees in question. Those employees, State Department spokesman
Sean McCormack confirmed in an interview with Salon, work for the
State Department, not the DOD. "[They] report to our diplomatic
security office in Baghdad."
Horton says he believes that "Blackwater is preparing to make the
argument, if they ever get in the crosshairs of this, that they are
there with a Department of State diplomatic contract and,
therefore, MEJA doesn't apply."
Rep. David Price, D-N.C., is the sponsor of a law that attempts to
deal with this loophole, theTransparency and Accountability in
Military and Security Contracting Act of 2007.
"I just want to know whether it can and will be prosecuted if
prosecution is warranted, and I don't think we have the clear
legislative coverage of this that we should," Price said in an
interview Monday. "If the contractors were under a DOD contract,
that wouldn't be the question so much as whether the
administration's doing its job pressing forward, but here you do
have a real question about whether it has the authority in the
first place."
Singer concurs. "There's a lot of stuff that could be done. It's
just there's no easy answers," he says. "You could use them as a
test case for UCMJ. You could hand them over to the Iraqis.
President Bush says it's a functioning democracy. You could try to
test out MEJA on them. You could investigate it and find out that
actually it was a rightful shooting. There's lots of coulds, but
there's no silver-bullet solution. We've painted ourselves in a
corner."
Back in Baghdad, the Iraqis may not have the power to enforce the
one action they've taken so far, the simple revocation of
Blackwater's license. A spokesman for Iraq's Interior Ministry,
Brig. Gen. Abdul Kareem Khalaf, told reporters Monday: "We have
revoked Blackwater's license to operate in Iraq. As of now they are
not allowed to operate anywhere in the Republic of Iraq. The
investigation is ongoing, and all those responsible for Sunday's
killing will be referred to Iraqi justice."
But it's not clear that Blackwater even has a license to revoke.
Speculation abounded on Monday that it did 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."
Lawrence T. Peter, the director of the Private Security Company
Association of Iraq, an industry trade group, told the Post on
Monday that Blackwater did have a license. He seems to be
contradicted by his own organization's Web site, however, which
lists Blackwater as in the process of obtaining one. Salon
contacted Peter to ask whether Blackwater was licensed. He did not
answer the question, but a spokesman did forward a statement
emphasizing that members of his trade group "pride themselves" on
abiding by the "Rules for Use of Force" in effect.
By Monday afternoon, Iraqi officials seemed to be backing away from
their earlier statements, making their pronouncements about
Blackwater's license much less definitive. Time magazine reported
that "a senior Iraqi official ... said that prime minister Maliki
is expected to discuss the episode at a cabinet session scheduled
for Tuesday and that, as far as the license being permanently
revoked, 'it's not a done deal yet.'"
Additional reporting by Erin Renzas.
