Commentary

Immunity Hype

Last week the media reported security contractors working in Iraq no longer will receive immunity from prosecution in that nation under a deal being brokered by Iraqi and U.S. officials.

As the lifting of immunity for foreign private security contractors has long been a demand from Iraqi lawmakers in the proposed status of forces agreement between Baghdad and Washington, which they hoped to sign by the end of July, it would seem this is a key breakthrough.

In fact, it is much less, although still noteworthy. The contention that foreign contractors working in Iraq were granted blanket immunity from any and all crimes has long been closer to fiction than fact.

Meanwhile, the demand by some Iraqi politicians to end immunity for U.S. soldiers remains strongly opposed.

It is true that the modern private military and security contracting industry is something that current international law does not have a good handle on. Like many other areas, the reality often has outpaced theory, which was constructed for an earlier age. In this case, existing international law is trying to thread the needle of modern private military companies and private security companies through the eye of the definition of “mercenaries” as codified in legal treaties like the Geneva Conventions.

It is also true that existing laws can be unequal in their application. Professor Deborah Avant, author of the book “The Market for Force,” says: “For instance, the Patriot Act applies to any crime committed by a U.S. citizen, or against a U.S. citizen anywhere U.S. forces are operating. So some of the foreign nationals working for private security firms in Iraq would be subject to the Patriot Act if they commit a crime against a U.S. citizen,” but not if a foreign national commits a crime against an Iraqi.

None of this is to say that contractors have been punished for crimes they may have committed. Still, if they have not suffered the consequences, it is because of a lack of political will, not because of a lack of laws, even if there isn’t one that is universally accepted.

Contractor personnel were never totally beyond the reach of the law. The U.S. government could consent to local trials. The June 2003 Order 17 issued in Iraq by the Coalition Provisional Authority notes the contractors’ immunity from prosecution “may be waived by the Parent State.”

That order was never the blanket grant of immunity that its critics claimed, as it also stated: “Nothing in this provision shall prohibit MNF (Multinational Force in Iraq) Personnel from preventing acts of serious misconduct by Contractors, or otherwise temporarily detaining any Contractors who pose a risk of injury to themselves or others, pending expeditious turnover to the appropriate authorities of the Sending State.”

In fact, the legal immunity given to contractors by that order is actually far more limited than that given to others. One subsection stated “the MNF, the CPA, Foreign Liaison Missions, their Personnel, property, funds and assets, and all International Consultants shall be immune from Iraqi legal process.” This seems real blanket immunity, whereas that applied to contractors is contingent upon their acting to fulfill a contract.

Nevertheless, Order 17 was perceived as reducing the power of the Iraqi government to pursue legal action against foreigners working with the CPA.

However, it is true that on the political will charge the U.S. government is guilty. It has been widely known for years that the State Department was willing to look the other way if the contractors guarding its personnel shot first and asked questions later. It took the killing of 17 Iraqi civilians in Baghdad last September for people to pay attention.

And while contractors never, in theory at least, had a “get-out-of-jail-free card,” the U.S. government has taken steps to strengthen its ability to prosecute contractors.

For example, on Oct. 17, 2006, the Uniform Code of Military Justice was amended to extend UCMJ jurisdiction over persons serving with or accompanying U.S. armed forces in the field in times of declared war or a contingency. The first prosecution of a contractor, albeit not an American, was announced recently.

The real impact of this has largely been lost in public discussion. Contractors have long claimed that without legal protection, security contractors simply were not going to work in Iraq because of the likelihood of arbitrary legal treatment of their employees. In addition, without immunity their insurers were threatening to jack up their premiums to a level they could not afford. Furthermore, because there is no status of forces agreement in place, it has never been clear in what venue legal proceedings against a contractor might take place. Such uncertainty was another reason for giving contractors immunity.

Looking at it historically, however, such concerns were overstated. A SOFA generally provides immunity to contractor personnel. Some of the SOFAs drawn up for U.S. forces include protection for contractors working on behalf of the U.S. Defense Department. For example, the U.S. government linked its aid package to Colombia (where three contractors recently were rescued after being held by the FARC rebel group) to an agreement to exempt U.S. military personnel and contractors from the International Criminal Court’s jurisdiction.

Thus, if contractors working in Iraq receive no special legal protections, they will be setting a precedent.

Given that Iraq will depend on foreign contractors for years to come, if only for the support of the Iraqi army and for the new oil deals being signed by American companies, the stage is being set for “interesting times,” as the old Chinese expression puts it. Given that nobody is saying these future deals are likely to fall through because of the lifting of “immunity,” it can be taken as a sign the concern over its lifting is more imaginary than real.

U.S. Navy veteran David Isenberg is a military affairs analyst. He is an adjunct scholar with the Cato Institute and the author of a forthcoming book, Shadow Force: Private Security Contractors in Iraq.