Private Security Contractors in Iraq and Afghanistan: Legal Issues *

By Elsea, Jennifer K. | Current Politics and Economics of Northern and Western Asia, April 1, 2011 | Go to article overview

Private Security Contractors in Iraq and Afghanistan: Legal Issues *


Elsea, Jennifer K., Current Politics and Economics of Northern and Western Asia


INTRODUCTION

U.S. departments and agencies engaged in combat or stability operations overseas are relying on private firms to perform a wider scope of security services than was previously the case [1] Rather than relying on the U.S. Armed Forces to provide protection from insurgents and other risks inherent in such an environment, the State Department, USAID, and reportedly, the Central Intelligence Agency [2] have outsourced a variety of security services. The Department of Defense (DOD) also employs civilian contractors to perform certain security services [3] The use of private security contractors (PSCs) to provide security for personnel and property in Iraq and Afghanistan has been a subject of debate in the press, in Congress, and in the international community. Due to a spate of high-profile incidents involving contractors allegedly shooting civilians, using excessive force, committing other crimes, or otherwise behaving in a manner that may be offensive to the local population, there is concern that the reliance on contractors may be undermining U.S. counterinsurgency efforts in Iraq and Afghanistan. Some have questioned whether the legal framework is adequate to cover the activities of armed civilians performing roles that in previous conflicts were assigned to soldiers, or whether such activities could run counter to international law.

Congress has, over the past decade, enacted legislation to close jurisdictional gaps that have made prosecution of civilian employees difficult for crimes they commit overseas. As a result, there is statutory authority to subject civilian contractor personnel to prosecution in federal and sometimes military court in many cases, largely depending on the type and seriousness of the offense alleged, where the offense occurred, the nationality of the perpetrator or victim, and the nature of the contract employment and government agency (or armed force) affiliation. The bases of jurisdiction, which remain relatively untested by the courts, may not have closed all of the gaps, and in cases they do cover, may affect agency responsibility for investigating and prosecuting the crimes as well as the venue for prosecution. While some contractor personnel have been subject to prosecution in the United States for crimes they allegedly committed in Iraq and Afghanistan, it appears that many more investigations into possible criminal conduct have not resulted in charges, at least not yet.

This report discusses the legal framework that applies to contractor personnel serving in Iraq and Afghanistan, including matters peculiar to private security contractors. After presenting a general description of the types of law applicable, the report addresses some implications of international law and proposals for the adoption of international -best practices" regarding the use of PSCs and an international convention to regulate and oversee their use. There follows a description of the treaty frameworks applicable in Iraq and Afghanistan, in particular agreements that function as -status of forces" agreements [4] The report briefly discusses the possible implication of the roles ofprivate security contractors with respect to inherently governmental functions. Finally, the report discusses jurisdiction over contractor personnel in U.S. courts, whether federal or military, identifying possible means of prosecuting contractor personnel who are accused of violating the law overseas in the context of U.S. military operations and providing a brief listing of known cases that have occurred or are pending.

LEGAL STATUS AND AUTHORITIES

Contractors to the coalition forces in Iraq and Afghanistan operate under three levels of legal authority: (1) the international order of the laws and usages of war, resolutions of the United Nations Security Council, and relevant treaties; (2) U.S. law; and (3) the domestic law of the host countries. Under the authority of international law, contractors and other civilians working with the military are civilian non-combatants whose conduct may be attributable to the United States [5] or may implicate the duty to promote the welfare and security of the local population [6] The courts of Iraq and Afghanistan have jurisdiction to prosecute them pursuant to applicable status of forces agreements. …

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