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Criminal Liability of Private Contractors in Iraq
Although they are immune from prosecution in Iraq, the U.S. may authorize a waiver in the provision
Sean Hayes (internews)     Email Article  Print Article 
Published 2004-05-21 15:47 (KST)   
"I visited Abu Ghraib a couple of days after it was liberated. It was the most awful sight I've ever seen. There were bodies that were eaten by dogs, torture. You know, electrodes coming out of the walls. It was an awful place. We went into Iraq to stop things like this from happening, and indeed, here they are happening under our
tutelage." -- U.S. Lt. Col. Bill Cowan


There is little doubt that the military soldiers responsible for the disgraceful physical and sexual abuse of Iraqi prisoners will face court-martials and will be convicted. The question, however, is whether the civilian contractors that worked hand-in-hand with the military receive punishment?

Military Findings

The military found through an internal investigation that "numerous incidents of sadistic, blatant and wanton criminal abuses" were inflicted on prisoners. The investigation also noted that civilian contractors worked at the prison as interpreters and in many cases as interrogators and these individuals were also responsible for the abuses.

The report even went on to state that one interrogator may have ordered abuse and that the interrogator "clearly knew his instructions equated to physical abuse."

Additionally, the Justice Department is investigating three suspicious deaths of detainees by CIA officials and civilian contractors.

Prosecution in Iraq

The civilian contractors cannot be prosecuted in Iraq. Under a June 2003 order of the Coalition Provisional Authority (CPA), civilian contractors are immune from local criminal prosecution when the act in question is performed during official duties. The exact language of the order states that: "acts performed by them within their official activities pursuant to the terms and conditions of a contract between a contractor and Coalition Forces or the CPA" are immune from prosecution in Iraq.

It can be argued that torture is outside of "official activities," but in actuality this argument will be futile since the order also states that crimes committed during free time can only be prosecuted by Iraqis if coalition administrator Paul Bremer gives his permission or the U.S. government authorizes a waiver of the provision.

Neither is likely and additionally, as of this date, the Iraqi Authority has no legal system outside of tribal legal systems.

Prosecution in the United States

It is very unlikely that a prosecution of the contractors will occur in Iraq. U.S. constitutional law also prohibits military trials of civilian contractors. So the only avenue to prosecute the civilian contractors is through the U.S. federal criminal courts.

Attorney General John Ashcroft noted that the U.S. courts do have jurisdiction over the contractors.

For the most serious crimes the contractors will probably be prosecuted under the War Crimes Act of 1996. A war crime is defined as grave abuses of the Geneva Convention of 1949. A grave abuse includes torture. Additionally, the law allows prosecution of acts that violate Geneva Conventions article 3 ("outrageous upon personal dignity" "humiliating and degrading treatment").

The possible punishment for violations of the War Crimes Act is life imprisonment or a term of years. The death penalty is also a possible penalty if a victim died.

Additionally, the contractors can be prosecuted under the Military Extraterritorial Act (MEJA). The Act was passed in 2000 and applies to all federal crimes where one can be sentenced to imprisonment for more than one year. The Act extends all federal crimes to incidents that occur abroad. No prosecutions have yet occurred under the Act.

Conclusion

Sean C. Hayes
©2004
Attorney General John Ashcroft noted that the U.S. courts do have jurisdiction over the contractors. Hopefully, Attorney General Ashcroft will vehemently go after these contractors. The situation, however, doesn't look very promising. Ashcroft noted that he will not send any or a significant number of FBI agents to Iraq. He stated that he will wait until a Pentagon investigation is concluded.

Furthermore, to prosecute these contractors is an uphill battle if Ashcroft is less than vehement in pursuing the matter. We must remember if these cases are tried in America the victims would need to appear in U.S. court to testify. Additionally, the prosecution would need to convince a jury of all Americans to convict an American that abused an Iraqi. In many cases the Iraqi may have been a Saddam Hussein loyalist.

If Ashcroft is not even willing to send FBI agents to investigate the matter he may be less than willing to bring victims and witnesses into the U.S. to testify and pose a vehement and caustic prosecution.
Sean C. Hayes is a Constitutional Researcher for the Constitutional Court of Korea. He is certified to the New York and Connecticut Bars. He teaches Constitutional Law and Introduction to U.S. Law along with his Research duties at the Constitutional Court of Korea. His Web site can be found at www.HayesLaw.org.
©2004 OhmyNews

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