When it comes to legal accountability for private military and security contractors there are two categories to choose from, and they both have problems. They are national and international law. For example, U.S. national law is limited given that it primarily applies to crimes that take place in United States and most U.S.-based companies whose contractors get in trouble are operating in other countries, where they may be covered by immunity agreements. Even if they aren't and are, theoretically, covered by relatively passed or revised recent laws that are supposed to allow for prosecution, such as the Military Extraterritorial or Jurisdiction Act or the military's Uniform Code of Military Justice there are problems of jurisdiction (military jurisdiction over civilians, in the case of the UCMJ) and resources and political will in the case of the former.
If you recall the killing of Iraqi civilians at Nisour Square in Baghdad, Iraq in September 2007 and all the subsequent on again, off again legal maneuverings the limitations of national law become extremely obvious.
International law has problems because most of the existing law is predicated on the existence of mercenaries which the average PMSC is clearly not. And an international effort, such as the Montreux Document, is a voluntary agreement, not an international treaty, so good luck trying to prosecute someone under that.
So, naturally, one wonders if there is a better way. Well, yes, according to Justin H. Whitten, who received his J.D. this year at the Washington University in St. Louis. He is the author of the article, "They're Getting Away with Murder: How the International Criminal Court Can Prosecute U.S. Private Security Contractors for the Nisour Square Tragedy And Why It Should," which appeared earlier this year in the Washington University Global Studies Law Review.
Suggesting that the ICC could be involved is a bold suggestion for various reasons, not least because currently neither Iraq nor the United States has accepted the jurisdiction of the ICC. There are three circumstances under which the ICC may exercise jurisdiction:
"(1) a state party in which the crime was committed refers a situation to the ICC Prosecutor;
(2) pursuant to Chapter VII of the Charter of the United Nations, the Security Council refers a situation to the Prosecutor, or
(3) the Prosecutor acting proprio motu (by his or her own initiative) prompts an investigation as allowed by Article 15."
Whitten argues that "the most viable option is the first: for Iraq to accept the jurisdiction of the ICC thereby becoming a state party that can refer the Nisour Square tragedy to the ICC":
"Once Iraq becomes a State Party, then the ICC could have jurisdiction under Article 12(2)(a), because the Nisour Square tragedy occurred within the territory of Iraq. Finally, there is the issue of retroactive jurisdiction to permit the ICC to prosecute the Nisour Square Tragedy. Article 11(2) establishes that in circumstances where a State Party accepts the jurisdiction of the ICC after the Rome Statute entered into force, "the Court may exercise its jurisdiction only with respect to crimes committed after entry into force of this Statute for that State..." In other words, there appears to be a ban on retroactive jurisdiction. However, Article 11(2) provides an exception to this ban on retroactive jurisdiction if the State Party makes a declaration pursuant to Article 12(3). Under this exception, Iraq could lodge a declaration with the Registrar of the ICC to retroactively establish the Court's jurisdiction over the crimes committed by private security contractors operating in Iraq since 2003."
That, however, is just the first step. Next, and certainly more controversial, would be "to show that the Nisour Square tragedy is a crime within the subject matter jurisdiction of the ICC according to Article 5 of the Rome Statute. Iraq can satisfy this requirement by submitting the Nisour Square shootings as war crimes as defined by Article 8 of the Rome Statute."
Whitten notes that while It is unclear whether the phrase "in particular" means exclusively such that war crimes cannot be isolated acts but must be acts committed as "part of a plan or policy" or "large-scale commission, he believes:
"The Nisour Square tragedy received worldwide attention, and the United States acknowledged the incident was a watershed moment, illustrating a need for more effective oversight of its contractors. The United States failed to hold those responsible accountable. On account of the gravity of the tragedy and its worldwide attention, the Office of the Prosecutor for the ICC should make a case that the events of Nisour Square satisfy the jurisdictional threshold of Article 8(1) if Iraq accepts ICC jurisdiction."
One should note that "for the ICC to have jurisdiction over the perpetrators of the Nisour Square tragedy, the United States must be unwilling or unable to prosecute those individuals. While the Justice Department certainly did try to prosecute Blackwater contractors for the killings it did so in such an incompetent way, due to "failing to properly screen its investigators and attorneys from exposure to inadmissible information," fulfills the requirement that the U.S. is "unable" to prosecute. Hey, who says that legal incompetence doesn't pay off?
Whitten concludes thusly:
"The Iraqis saw the dismissal of the Blackwater guards' indictments for the Nisour Square shootings as a failure to prosecute that cast doubt on the sincerity of U.S. efforts to hold contractors liable for war crimes. Even though the dismissal of the indictments has been reversed on appeal, it is possible that on remand the indictments could be reinstated or reissued. The fact remains that those responsible for the Nisour Square tragedy in 2007 have still not been held accountable. Moreover the U.S. legislators' failure to close the "jurisdictional gap" in MEJA further delays efforts to hold contractors liable.
The U.S. evidentiary system has built-in safeguards for constitutional rights which, in some circumstances, warrant dismissal of an indictment for prosecutorial misuse of tainted evidence. There is a danger that parties unfamiliar with necessity of the U.S. evidentiary safeguards, such as the Iraqi citizens, may see the dismissal as "victor's justice." To lend credibility to the U.S. contention that the United States only wants to help Iraq survive as a sovereign nation, the United States must allow Iraq to submit cases such as the Nisour Square tragedy to the ICC.
It is uncontested that private security contractors were, and continue to be, an integral part of the U.S. mission in Iraq. Exposing those individuals to potential criminal liability before the ICC would not mean the United States is turning its back on those who supported the mission in Iraq. Rather, it would demonstrate to the world that parties involved in armed conflict who commit war crimes will be held accountable.
Prosecution of private security contractors for war crimes in Iraq, unlike the other ICC prosecutions, does not risk destabilization of the region because prosecution is desired in the region. If anything, effective prosecution would strengthen the claim that the United States was and is committed to justice in the process of rebuilding Iraq."