Holding Private Security Contractors Accountable for Human Rights Abuses

June 28, 2011

By Rebecca DeWinter-Schmitt, Amnesty’s Business & Human Rights Group

Justin Cannon and Christopher Drotleff were working for private security company Blackwater (now known as Xe) when they were accused of killing two civilians and injuring two others after opening fire on a vehicle in Afghanistan in May 2009. Romal Mohammad Naiem, who was a passenger in the car, which had approached the scene of a traffic accident involving two Xe vehicles and was leaving when it was repeatedly shot upon, was killed.

© Scott Olson/Getty Images

On Monday, Cannon was given a 30-month sentence for involuntary manslaughter in the shooting death of Naiem. Drotleff, his partner, received a 37-month sentence earlier this month.

According to the Virginian-Pilot, they are the first Xe contractors to be punished for killing a civilian in a conflict zone. (Four more Xe contractors still face manslaughter charges for the Nisour Square shootings that resulted in the death of 17 civilians.)

While these convictions go some way towards holding individual security providers to account for the deaths of innocent civilians,  the broader issue of responsibility of private military and security companies that systematically fail to ensure they respect human rights in their daily operations remains.

Blackwater (Xe) convictions eclipsed by Obama administration’s position against access to courts for torture victims

The Christian Science Monitor reported on Monday that the Supreme Court refused without comment to reconsider an appellate decision dismissing a case against contractors Titan (L3) and CACI.

After employees of the two companies were implicated by the US Army in two investigations in the infamous torture and abuse of detainees at Abu Ghraib in 2003 and 2004, the Center for Constitutional Rights brought a lawsuit against the companies on behalf of 250 victims of abuse using the Alien Tort Statute (ATS). The ATS allows non-US citizens to sue in US federal courts for a violation of international law.

The case was dismissed by an appeals court in a 2-1 ruling wherein the two judge majority first attacked the reach of the ATS, saying the former Iraqi detainees were not empowered to challenge a corporation since torture committed by a private contractor is not a violation of a settled international norm.

The judges then further precluded the claims by invoking a doctrine of “battlefield preemption,” whereby tort claims against a contractor cannot proceed if that contractor is integrated into combatant activities over which the military retains command authority.  However, the U.S. Army has denied that it had this type of command and control authority and Titan and CACI at the time were operating under a Department of the Interior contract.

The Supreme Court’s decision allows the Appeals Court decision to stand, offering a clear blow to human rights protections and corporate accountability for abuses. Abu Ghraib was the earliest and most detrimental hit to America’s reputation as a nation that upholds human rights and marked the beginning of a slew of rights violations linked to the global “war on terror”.

The Obama administration came into office promising to address rights violations in the war on terror; as Senator before that, Obama even spearheaded legislation to improve the oversight and accountability of private military and security contractors.  However, the US Solicitor General, Neal Katayal, instead filed a brief on behalf of the administration advising the Supreme Court not to hear the case to reinstate the plaintiffs’ lawsuit against the companies.

One can hope that such egregious human rights violations by contractors supporting a Department of Defense (DOD) mission would not occur again, and if they did, that the vehicles available for criminal accountability, the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ), would be used to punish the perpetrators. (Though to date, the political will to prosecute contractors has been scarce.)

Use of private security contractors on the rise

However, the picture becomes drearier as, with the withdrawal of troops in Iraq and soon Afghanistan, the Department of State is expected to significantly increase its use of security contractors. And that’s where there’s even greater cause for concern: security contractors not supporting a DOD mission are subject neither to the MEJA nor the UCMJ.

To rectify this legal shortcoming, Senator Leahy and Representative Price recently re-introduced the Civilian Extraterritorial Jurisdiction Act. Care should be taken to ensure this bill once and for all addresses the loopholes that have allowed contractors – individuals and companies – to escape accountability. Of course, even a perfect law on the books still requires the political will of the administration to employ it to end impunity.