Existing National Laws for Accountability and Prosecution

Existing National Laws for Accountability and Prosecution

Existing U.S. law provides jurisdiction over contractor personnel for criminal offenses, like torture and killings. Below are some of the major statutes that apply to contractors. Unfortunately to date, almost no security contractors have been held to account for their involvement in human rights violations. Industry-led efforts to self-regulate have also proved inadequate.

Amnesty has been working to ensure that victims of rights violations are provided with justice. For example, in July 2009 Amnesty renewed calls to Attorney General Eric Holder asking that contractors implicated in cases of detainee abuse not escape scrutiny and be fully investigated and, where credible evidence of torture and abuse exists, prosecuted. In particular, there is concern that the Military Extraterritorial Act (MEJA) as currently formulated does not clearly apply to security contractors working for government agencies other than the Department of Defense. For this reason, Sen. Patrick Leahy and Rep. David Price proposed legislation in February 2010, the Civilian Extraterritorial Jurisdiction Act (CEJA), to ensure accountability for the criminal acts of Federal employees and contractors operating outside of the United States. A coalition of human rights advocates is forming to seek resubmission of the bill in the new Congress. Stay tuned to these pages for more details as this effort develops.

  • Military Extraterritorial Jurisdiction Act of 2000 (MEJA): This law, 18 U.S.C. § 3261, criminalizes conduct committed by "members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside the United States" that would be punishable by more than one year's imprisonment if engaged in within the United States. The text of MEJA (18 U.S.C. § 3267(1) (A)) was amended in 2005 to define the term "employed by the Armed Forces outside the United States" to include civilian employees, contractors, or employees of contractors, not only of the Department of Defense, but also of "any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas."
  • Uniform Code of Military Justice (UCMJ): authorizes court-martial to try members of the U.S. armed forces for offenses prohibited under the UCMJ. This is now extended to cover PMSCs who are explicitly connected to the armed forces during a "declared war or a contingency operation".
  • The USA PATRIOT Act: Section 804 of this law, 18 U.S.C. § 7 (9), extends the jurisdiction of U.S. federal courts over military personnel, including civilian contractors, for violations of federal criminal law committed at U.S. facilities abroad. The U.S. Department of Justice has used this provision to bring criminal charges against a CIA contractor who allegedly beat a detainee who later died in custody in Afghanistan. The contractor has been indicted by a North Carolina grand jury for assault with a dangerous weapon and assault resulting in serious bodily injury.
  • Alien Tort Claims Act (ATCA): Victims of human rights abuses can file a civil lawsuit in U.S. courts against individuals or companies who committed the grave violations of international human rights.
  • The Torture Statute: this law, 18 U.S.C. § 2340, makes it a criminal offense for any U.S. national acting in an official capacity "outside the United States" to commit or attempt to commit torture. The law was enacted in 1994. Anyone who conspires to commit the acts prohibited under the statute can be subject to the same penalties as the actual perpetrator. This law, however, defines torture in an arguably narrower way than the U.N. Convention against Torture.
  • War Crimes Act: authorizes this law, 18 U.S.C. § 2441, criminalizes certain war crimes committed inside or outside the United States by anyone who is a member of the armed forces or is a U.S. national. Under the Act, a war crime includes conduct defined as a grave breach of the Geneva Conventions, or constituting a violation of common Article 3 of the Conventions. The latter prohibits, inter alia, cruel treatment, torture, and outrages upon personal dignity, in particular humiliating and degrading treatment. The statute can be used to prosecute U.S. contractors abroad who are also U.S. citizens but it does not apply to a good number of PMSC personnel who are third-country nationals (TCNs). TCNs consist of 65% of total contractor personnel.

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