Soldiers of Fortune - Holding Private Security Contractors Accountable: The Alien Tort Claims Act and Its Potential Application to Abtan, et Al. V. Blackwater Lodge and Training Center, Inc., et Al

Article excerpt

Private security contractors play a prominent role in modern military operations. Of course the use of paid forces is not a new concept. Militaries utilized paid forces for hundreds of years, but technological advances have increased the mobility and firepower of private security contractors. (2) The United States now relies heavily on the private military industry in conducting its worldwide military operations. (3) The U.S. used private security contractors to conduct narcotics intervention operations in Columbia in the 1990's. (4) During the conflict in the Balkans, the U.S. used a private security contractor to train Croat troops to conduct operations against Serbian troops. (5) Contracting out these operations allowed the U.S. to decrease its footprint in these conflicts, or leave no footprint at all. Today the U.S. has as many as 30,000 private security contractors in Iraq. (6) However, repeated reports of misconduct by private security contractors are making the industry endure a level of scrutiny never encountered before. This note will focus on the Alien Tort Claims Act (ATCA) as a civil remedy to the misconduct by private security contractors overseas and how the case law regarding the ATCA will affect the recent lawsuit brought in the case of Abtan v. Blackwater. (7)

I. THE TREND TOWARD USING PRIVATE MILITARY COMPANIES

Governments use private security contractors for both practical and political reasons. Private military companies provide a wide range of services from training to post-conflict/reconstruction support to direct military support. (8) On the practical side, using private security contractors allows the military to delegate certain functions it would normally have to perform on its own. This delegation allows the military to focus its forces on higher priority issues. (9) From a political perspective, using private security contractors allows countries to circumvent governmental regulations on how many troops they can send into a conflict area. (10) Governments also benefit politically by utilizing private security contractors because public opinion is less affected by the injury or death of a contractor than an enlisted soldier. (11)

Private security contractors are used in conflicts of all sizes. Governments all around the world are trending towards outsourcing military and security functions to these private security contractors. (12) Today, several hundred private security firms exist around the world and have a combined annual revenue of $100 billion. (13) Countries in Africa used them in small scale regional conflicts. For example, the government of Sierra Leone hired the South African private security firm Executive Outcomes to conduct direct military operations against a rebel group that took control of major diamond mines in the country. (14)

The U.S. continues to use them in the larger scale conflicts in Iraq and Afghanistan. (15) Approximately 100,000 contractors are present in Iraq and a significant number of them are security contractors (16) This number is ten times the number of contractors used by the U.S. in the first Persian Gulf War, and is almost equal to the number of active duty military personnel in Iraq. (17)

The U.S. is growing increasingly more reliant on private security contractors in its operations in Iraq. A 2007 House of Representatives memorandum noted that as of March 2006, 181 private security firms operated in Iraq, employing 48,000 employees. (18) During the reconstruction period in Iraq, the U.S. has spent $3.8 billion on security contractors. (19) Salaries for employees of these contractors can get as high as $33,000 a month. (20) These numbers account for 12.5% of U.S. government spending on reconstruction in Iraq. (21) Notwithstanding this large government expenditure on private security contractors, numerous reports of contractors' misconduct have surfaced while no legal restraints exist to control them. …