Academic journal article Environment and Planning D: Society and Space

War, Law, Jurisdiction, and Juridical Othering: Private Military Security Contractors and the Nisour Square Massacre

Academic journal article Environment and Planning D: Society and Space

War, Law, Jurisdiction, and Juridical Othering: Private Military Security Contractors and the Nisour Square Massacre

Article excerpt

Abstract. In September 2007 private contractors working for Blackwater, a private military contracting firm based in the US, killed seventeen people in Nisour Square in Iraq and severely injured more than twenty others. For over seven years the contractors evaded legal liability. This paper examines the way that legal jurisdiction played out in this evasion of accountability. We first examine the role of Order 17 in mandating that private contractors in Iraq "be subject to the exclusive jurisdiction of their sending states". We then turn to interrogate the ways that 'juridical othering', which operates through appeals to jurisdiction, has been employed by the state to distance itself from its own actions, in that the contractors were seen to be accountable neither to martial nor to domestic civilian law. Subsequently, we examine the impact of this juridical othering on the victims of the violence, as they too are 'othered' in the law. Through this analysis we demonstrate that the processes of juridical othering are the result not only of deliberate state action, but also of complex spatiolegal jurisdictions that are historically ingrained and are called into being in times of war in particular kinds of ways. In our conclusion, we point to the October 2014 ruling in the US federal courts that found three Blackwater employees guilty of manslaughter and one of murder, to show how law is continually unfolding and, as it does so, reinforces the intimate ways that law and war are co-constituted.

Keywords: lawfare, Iraq war, Nisour Square jurisdiction, private military security contractors

1 Introduction

At 12:08 pm local time, on 16 September 2007, four heavily armed Blackwater tanks rolled into Nisour Square, a congested intersection in Baghdad's Mansour district. (1) According to Khalaf Salman, one of the Iraqi traffic cops on duty in Nisour Square that day, the Blackwater convoy behaved erratically, making a sharp U-turn before coming to an abrupt stop in the center of the intersection. It was then, Salman recounts, that tank occupants opened fire, immediately striking a nearby vehicle (Sengupta, 2007). Twenty-year-old Ahmed Hathem al-Rubaie, who was in that car with his mother, was shot in the head through his car window and died in his mother's arms (Scahill, 2008). While Salman and his colleagues are reported to have signaled the Blackwater operatives to stop firing, what ensued instead was sustained and allegedly 'random' gunfire for the next fifteen minutes (Hurst and Qassim Abdul-Zahra, 2007). Witnesses described it as "catastrophic", "a horror movie", and "a massacre"; in just over 15 minutes, the Blackwater operatives had killed seventeen people and severely injured more than twenty (Daskal, 2007; Karadsheh and Duke, 2007).

Blackwater, however, refused to acknowledge legal liability. In a series of congressional hearings and public statements after the shootings, Blackwater officials defended the actions of its employees and denied the eyewitness version of the events. At a congressional hearing held almost two months after the shootings, Erik Prince, founder and then owner of Blackwater, stated that the company's tanks had been approached by a moving car that had refused to slow down. He concluded that "based on everything we currently know, the Blackwater team acted appropriately while operating in a very complex war zone" (Broder, 2007). These affirmations ran counter to investigations of the massacre by the FBI and members of the United States military that found that Blackwater was not attacked that afternoon, that the killings were unjustifiable, and that criminal offences had occurred (Johnston and Broder, 2007). Yet despite these findings, pursuing criminal liability through the courts has been beset with challenges. Civil cases have been settled out of court with no recognition of legal liability. Criminal charges brought against the contractors in US federal court in 2009 were thrown out by the judge. …

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