Once again, Erik Prince, the founder of the Private Military and Security Company (PMSC) Blackwater, is in the news. Various news sources cite a confidential UN report implicating Prince in violating a UN arms embargo, supplying arms, equipment, and mercenaries to opposition forces seeking to overthrow the UN-backed government. This is another reminder of the horrors attributed to unregulated armed contractors in conflict zones. President Donald Trump’s December 19, 2020 pardon of four private security contractors (PSCs) who had been convicted of killing 14 Iraqi civilians on September 16, 2007 — about which many expressed outrage — is still fresh in our minds. These PSCs also worked for Prince.
These incidents should draw attention to the regulatory gaps that still surround PMSCs. More importantly, an initiative to fix a gap in legal accountability currently remains stalled in the legislative processes. What is this gap?
THE LEGAL ACCOUNTABILITY PUZZLE
Separate investigations by the US Army and the Federal Bureau of Investigation (FBI) concluded that contractors working for Prince’s company, Blackwater, fired into a crowd of Iraqi civilians at Nisour Square in Baghdad without justification on September 16, 2007. The contractors admitted that they fired their weapons, acknowledging that this fire resulted in the deaths of several of these civilians. Holding these men legally accountable, though, was complicated.
The first piece of the accountability puzzle was the Coalition Provisional Authority (CPA) Order 17 issued at the end of June 2004 by US administrator J. Paul Bremer. This order stated that, although civilians were required to abide by the laws of the host nation, all contractors, including Blackwater, weren’t subject to Iraqi legal proceedings. Instead, CPA Order 17 stated that they were subject to legal proceedings by the “parent State,” which in this case, would be the US government. So, if they were alleged to have violated the law, they would be tried by US courts, rather than Iraqi ones.
At the time of the incident, there were several statutory authorities to allow prosecution of US citizens for crimes committed overseas. These included the Special Maritime and Territorial Jurisdiction Act and the Patriot Act. The Department of Justice, though, determined that the event at Nisour Square was not covered by either of these. Neither could the contractors be tried under the War Crimes Act because, despite all appearances, the situation in Iraq did not meet the conditions of armed conflict as described in international law. That left only the Military Territorial Jurisdiction Act (MEJA).
MEJA covers persons employed by or accompanying US armed forces. It was initially intended to cover military dependents, civilian employees, and Department of Defense (DOD) contractors. In 2004, it was expanded to include civilian contractors and employees from other federal agencies to the extent that their employment is related to the support of DOD missions overseas. Prosecuting the Blackwater contractors under MEJA, however, proved difficult as questions arose about the applicability of the law, legal processes, and evidentiary standards.
The investigations of the US Army and FBI, along with testimony provided by the survivors of the Nisour Square incident all clearly point to mass, unjustified homicide. A system based in the rule of law requires that such injustice be punished but we cannot undermine the rule of law in applying that justice. The United States still does not have in place reasonable legal processes to punish such crimes.
First, the applicability of MEJA is questionable because it is not clear that Blackwater was supporting the DOD. Although Blackwater personnel directly participated in hostilities in Iraq, they were not subject to military authority but instead were under the authority of the Chief of Mission (US Embassy) in Iraq. The contractors were hired by the US State Department under the Worldwide Protective Services Contract. Their mission was to provide protection for US Embassy personnel and was outside the authority or oversight of the military chain of command. The US Embassy jealously protected its independence from the military forces in Iraq, which included refusing to coordinate with military commanders in the area.
Second, the case was built on statements that should not have been admissible. The only evidence the government had to build a case was from debriefings of the Blackwater team members conducted by the Department of State. These were required under the terms of the contract, with conditions of immunity — meaning that they were protected under the Fifth Amendment.
And third, the evidence collected does not meet the standards of the court it was tried in. In any US allegation of homicide, the government must provide evidence beyond a reasonable doubt — not including a defendant’s confession — that the defendant’s action caused the death of another. Meeting that evidentiary requirement from afar, proved difficult.
Each of these complications plagued the prosecution efforts. Whether Blackwater’s employment under the State Department was “supporting the mission of the Department of Defense“ was the subject of much dispute. When the case came to trial, Gordon England, who was Deputy Secretary of Defense at the time of the incident, testified that Blackwater’s actions supported the State Department, not the DOD. In the legal proceedings, the courts did not separately rule on the applicability of MEJA. Instead, it was an element for the jury to consider along with the charges of manslaughter and murder. In the desire to apply justice for criminal misconduct, the jury allowed the applicability of MEJA.
The Blackwater statements were turned over to federal prosecutors despite their Fifth Amendment protections. Because using these statements violated protections against self-incrimination, the court initially dismissed the charges. The Obama administration appealed that decision and the Court of Appeals for the District of Columbia overturned the lower court decision and directed the admissibility of that testimony.
Multiple concerns, however, arose around evidence. None of the bullets recovered at the scene could be traced to any of the Blackwater team’s weapons. Also, although one contractor was convicted of the murder of a specific Iraqi citizen, another team member had admitted that he was the first to fire at that person. These issues all played into the appeal that was ongoing at the time that President Donald Trump issued the pardons.
A LEGAL FRAMEWORK IS LONG OVERDUE
These irregularities in jurisprudence were driven by legal measures that did not foresee contractors in armed conflict who were not clearly under military authority. These legal gaps remain open. When the State Department and other US government agencies and nongovernmental organizations rely on PSCs for protection, and local legal remedies for misconduct are unavailable, the applicability of MEJA remains an issue. A more comprehensive, so-called “civilian extraterritorial jurisdiction act” that could address the applicable law gap, has been stalled in Congress for about a decade. The main issue with this new law is about the parameters of prosecution: who can be prosecuted, who can be shielded from such prosecution, and how certain contractors and employees, especially intelligence and law enforcement agents can be adequately protected. Furthermore, the gaps surrounding legal processes and evidentiary standards remain to be addressed at all.
The investigations of the US Army and FBI, along with testimony provided by the survivors of the Nisour Square incident all clearly point to mass, unjustified homicide. A system based in the rule of law requires that such injustice be punished but we cannot undermine the rule of law in applying that justice. The United States still does not have in place reasonable legal processes to punish such crimes.
There are other gaps as well — in standards for all the services this industry provides, in US agency coordination, and in a robust engagement with transnational regulatory initiatives (we will address these in future posts). If it is going to continue to use contractors as it has, though, it is incumbent on the US government to provide legal frameworks in which these sorts of criminal acts can be justly prosecuted.
Deborah Avant is the Director and Chair for the Sié Chéou-Kang Center for International Security and Diplomacy at the Josef Korbel School of International Studies, University of Denver. She is the author of The Market for Force: the Consequences of Privatizing Security.
Christopher Mayer is a retired US Army colonel. He was the US government’s technical expert on PMSCs from 2005 to 2019, negotiating the Montreux Document, the International Code of Conduct for PSCs and was project manager for national and international standards for PSCs.
