Four Years After Blackwater Massacre in Iraq Gaps in Contractor Liability Remain

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This week marks the four year anniversary of the Nisour Square massacre, where on September 16, 2007, 17 Iraqi civilians were allegedly shot and killed and dozens more injured by Blackwater (now known as Xe) security contractors employed by the Department of State.

Five eyewitnesses insisted that the company guards fired without provocation, forcing civilians and Iraqi Police to run for cover.

The incident gained worldwide attention and highlighted the consequences of the U.S. government’s increased privatization of military and security functions. Today it is a reminder that after four years, Congress has still failed to clarify and strengthen jurisdiction of U.S. courts over its security contractors operating overseas by passing the Civilian Extraterritorial Jurisdiction Act.

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Code of Conduct for Private Security Providers Endorsed in Geneva

On Tuesday, November 9, 58 private security companies signed an International Code of Conduct for Private Security Providers. The signatories included major U.S. based firms, such as Triple Canopy, DynCorp, EODT, and even Xe (formerly known as Blackwater). The Code seeks to address the human rights impact of security providers and among its standards are rules for the use of force, prohibitions on child and forced labor, human trafficking, torture and other cruel, inhuman and degrading treatment, and commitments regarding the vetting and training of personnel and the reporting of incidents of the use of force.

The participants reflect a multi-stakeholder group representing governments, companies and their trade associations, civil society groups, and experts and academics, many of whom were involved in the 14 month process to develop the Code facilitated by the Geneva Centre for the Democratic Control of Armed Forces. This Code initiative is distinguishable from other voluntary efforts to date to create standards for companies in that its goal is to have the clients of private security providers – both governments and non-state clients like humanitarian aid organizations and other companies – include requirements to adhere to the Code in their contract vehicles.

The British government has already committed to making this a requirement for its contracted security, and the U.S. government is currently contemplating doing the same according to U.S. Department of State legal advisor Harold Koh. This would lend these voluntary standards some real teeth, as the human rights commitments made by the signatory firms could be upheld in courts of law. Furthermore, it represents an important advancement in the recognition by a global industry of the obligations of firms to uphold human rights wherever they operate.

However, the credibility of this initiative will hinge on the nature of the external independent mechanisms for effective governance and oversight. OMB Watch and some non-governmental organizations have warned of the shortcomings of any mechanism of reporting the incidents of the use of force that relies on self-reporting. Humans rights groups, such as Human Rights Advocates, Right Respect, and other human rights groups have endorsed the Code, but warn that the Code not be viewed as a substitute for the development of binding legal instruments to ensure that private security firms are held accountable for their actions.

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Failed accountability, WikiLeaks show true cost of war

The release by WikiLeaks late last week of 391,832 secret documents on the Iraq War has been said to be “…the most comprehensive and detailed account of any war ever to have entered the public record.” The revelations emerging from these documents showcase the culture of impunity that has plagued this war effort, including the U.S. government’s failure to adequately address rights violations linked to the corporations and contractors used to fight our wars.

As an August 22, 2006 report released by WikiLeaks stated

AFTER THE IED STRIKE A WITNESS REPORTS THE BLACKWATER EMPLOYEES FIRED INDISCRIMINATELY AT THE SCENE.

More than one year later, on September 16, 2007, Blackwater (now renamed Xe) guards, still benefiting from huge government contracts, shot and killed 17 Iraqi civilians in Nisour Square, Baghdad. This is just one example of many that can be found in the leaked documents.

It is clear that the record of unjustified killings and violence by PSCs is far beyond what had previously been released to the public. As it stands, none of these incidents has resulted in prosecution, and even those cases that have moved forward have resulted in dismissal or failure to indict.  Recently, a case against Andrew J. Moonen, a former Blackwater guard who was accused of killing a guard assigned to an Iraqi VP while wandering drunk in the Green Zone, was dropped by the Justice Department, citing difficulties in obtaining evidence in war zones, and the granting of immunities to the defendant by American officials at the scene.

Even the most public of cases, including that against Blackwater guards for the shooting of 17 Iraqi civilians in Nisour Square, have resulted in dismissals in US courts.  This culture of impunity extends across PSC activities.  On September 11th, 2009, the U.S. Court of Appeals for the D.C. Circuit in a 2 to 1 ruling dismissed a lawsuit brought against CACI International that alleged CACI personnel participated in torture and abuse at the Abu Ghraib prison.

By creating complex legal hurdles, issuing on the scene immunities, and failing to ensure an environment of transparency, oversight and accountability, we are shielding the true costs of our wars, not only financially but in human terms as well.  The release of these documents showcases just how terrible that cost is.

Let’s continue to call for accountability in conflict zones. Tell President Obama and Congress to respect human rights and counter terror with justice.

New Prez, How to End Impunity for Military Contractors

This week, Human Rights First (HRF) issued a report, “How to End Impunity for Private Security and Other Contractors: Blueprint for the Next Administration“.

The report helpfully encapsulates many of the calls for better oversight, monitoring and accountability that HRF, Amnesty International and others have been calling for with regard to companies, like Blackwater, Titan, KBR…, whose personnel have engaged in human rights abuses from rape and torture to killing, with impunity.

It also posits some fresh ideas into the conversation, such as extending the Freedom of Information Act (FOIA) to these companies and reforming state secret and other privileges that often get in the way of justice for victims.

However, the report suffers from an oversimplification, with an implied reference to fossilized examples as representative of the scope of the problem. In this sense, it feels like a recycled agenda from a “multi-stakeholder” conference. 

We should be working together to progress most of the recommendations in the report, but a few things should not be sacrificed in the name of appearing practical: human rights abuses should be prosecuted because we don’t tolerate them, period, not just because they foster hostility toward us and undermine military missions; the US shouldn’t consider whether to ban contractor roles in rendition, it should prohibit any role in rendition, which is illegal; UCMJ application to company personnel shouldn’t be revised, it should be repealed — why should we potentially subject the entire world (the result of subcontracting of third-country nationals) to the US military justice system?

Finally, let’s tell it like it is: many companies that provide services directly or indirectly to military operations shun “military” as part of an identification of their industry, instead often preferring “security” contractor or provider which sounds more benign. With few exceptions, HRF’s report should make them happy. Even its title does not mention the word military.