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Combating Impunity In Focus
“I had no choice but to go the legal route and take things to court. To get justice. To bring closure for the victims’ families. And to deter other criminals from committing the same crime.”- Mohammed Kinani, father of a nine-year old boy killed in Iraq at Nisoor Square on September 16, 2007 by Blackwater employeesBlackwater’s Youngest Victim (Democracy Now television broadcast Feb. 1, 2010), available at http://www.youtube.com/watch?v=68jAnTh18TY.
Human rights advocates have adopted legal and non-legal strategies in international and national forums to hold private military contractors (PMCs) accountable for their human rights abuses. They have also advocated for international minimum standards of conduct and binding law to regulate PMCs around the world.
Holding Private Military Contractors Accountable in U.S. and U.K. Courts
Victims of abuses in Iraq are increasingly bringing civil lawsuits against PMCs.
In October 2007, 22 Iraqi citizens, represented by the Center for Constitutional Rights (CCR) and private attorneys, sued Blackwater for its involvement in the Nisoor Square shootings. The victims and their families alleged that Blackwater had violated U.S. and international law and “created and fostered a culture of lawlessness amongst its employees, encouraging them to act in the company’s financial interests at the expense of innocent human life.”Center for Constitutional Rights, Abtan, et al. v. Prince, et al., http://ccrjustice.org/ourcases/current-cases/atban-et-al-v-blackwater-usa-et-al (last visited Nov. 6, 2010). In December 2007, the families of three men killed at Al Watahba Square on September 9, 2007 also brought action in the U.S. against Blackwater, alleging that “heavily-armed Blackwater shooters fired without justification and caused multiple deaths.”Center for Constitutional Rights, Abtan, et al. v. Prince, et al., http://ccrjustice.org/ourcases/current-cases/atban-et-al-v-blackwater-usa-et-al (last visited Nov. 6, 2010). In January 2010, both of these civil lawsuits, along with five others against Blackwater, resulted in a settlement agreement awarding compensation to the survivors and families of victims. Reports suggest Blackwater paid $30,000 for each wounded person and $100,000 to the families of those who were killed.Mike Baker, Blackwater Settles Series of Civil Lawsuits, HUFFINGTON POST, Jan. 7, 2010, http://www.huffingtonpost.com/2010/01/07/blackwater-settles-series_n_414706.html. Another suit, brought by the US Justice Department over the shooting in Nisoor Square, was recently revived by a US Appeals Court Panel.Appeals Court Revives Blackwater Shooting Case, ASSOCIATED PRESS, Apr. 22, 2011, available at http://www.google.com/hostednews/ap/article/ALeqM5gXOY21Y5gm0Wq8PgfyvcAZ1oud5g?docId=98192a9eb2a04d8b8b54dc1cf7c764c2.
In October 2009, three Iraqis initiated legal proceedings against one of Britain’s largest private security firms, Erinys International, claiming that they sustained severe injuries when Erinys guards in Kirkuk opened fire on them.Press Release, Leigh Day & Co, Iraqi Shootings Victims Start Legal Proceedings Against Private Security Contractor Erinys (Oct. 29, 2009), http://www.leighday.co.uk/news/news-archive/iraqi-shooting-victims-start-legal-proceedings. Erinys International has employed as many as 17,000 guards in Iraq. In 2008, the company had more contractors in Iraq than Great Britain had troops.Mark Townsend, Iraq Victims sue UK Security Firm, THE GUARDIAN, Jan. 11, 2009, available at http://www.guardian.co.uk/world/2009/jan/11/iraq-uk-security-firms.
In 2004, over 250 survivors of acts of torture at Abu Ghraib and their families brought a lawsuit in U.S. federal court against Titan/L-3 and CACI International for their alleged involvement in the abuses.Center for Constitutional Rights, Fact Sheet: Accountability for Torture by Private Military Contractors: The Cases against Titan/L-3 and CACI, http://ccrjustice.org/files/Final%202010%20contractor%20factsheet.pdf (last visited Nov. 6, 2010). Represented by the Center for Constitutional Rights and private attorneys, the plaintiffs in Saleh v. Titan accused Titan and CACI of acts of torture, negligence, and sexual assault, in violation of state, federal, and international law through the Alien Tort Statute. The trial judge dismissed the case against Titan and ordered a jury trial to proceed for the case against CACI.Press Release, Center for Constitutional Rights, Abu Ghraib Victims Ask Supreme Court to Hear Case Against Contractors CACI and L-3 (Apr. 27, 2010), http://ccrjustice.org/newsroom/press-releases/abu-ghraib-victims-ask-supreme-court-hear-case-against-contractors-caci-and-. The appeals court went on to dismiss both cases against Titan and CACI on the grounds that private military contractors enjoyed immunity because they act in “common mission” with the U.S. military.Saleh v. Titan Corp., 580 F.3d 1 (Ct. App. D.C. 2009), available at http://ccrjustice.org/files/Titan_Decision%209%2011%2009.pdf. In 2010, the torture survivors their families petitionedPetition for Writ of Certiorari, Saleh v. Titan Corp., No. 09-1313 (Sup. Ct. 2010), available at http://ccrjustice.org/files/SalehCertPetition.pdf. the Supreme Court to hear their appeal, arguing that immunity granted to private military contractors afforded the PMCs too much protection—more protection than even U.S. soldiers enjoy.Press Release, Center for Constitutional Rights, Abu Ghraib Victims Ask Supreme Court to Hear Case Against Contractors CACI and L-3 (Apr. 27, 2010), http://ccrjustice.org/newsroom/press-releases/abu-ghraib-victims-ask-supreme-court-hear-case-against-contractors-caci-and-. The Obama administration sided with the companies and said that the appeal should be denied. Reuters, Supreme Court won’t hear Iraqi contractor case, (June 27, 2011) http://old.news.yahoo.com/s/nm/20110627/us_nm/us_usa_iraq_contractors (June 27, 2011).
New cases were also filed in 2008 against CACI and Titan/L-3. According to reports, the plaintiffs in these cases were victims of torture and other abuses conducted at the direction of employees of CACI and Titan/L-3 in Abu Ghraib and in 25 other prisons across Iraq.Center for Constitutional Rights, Fact Sheet: Accountability for Torture by Private Military Contractors: The Cases against Titan/L-3 and CACI, http://ccrjustice.org/files/Final%202010%20contractor%20factsheet.pdf (last visited Nov. 6, 2010). Defendants’ motions to dismiss were denied in both cases and were on appeal, with oral arguments held in abeyance until the Supreme Court denied the petition for certiori with no comment in Saleh v. Titan on June 27, 2011. Reuters, Supreme Court won’t hear Iraqi contractor case, (June 27, 2011), http://old.news.yahoo.com/s/nm/20110627/us_nm/us_usa_iraq_contractors (June 28, 2011).
On September 21 2011, the federal appeals court dismissed two lawsuits by former Iraqi detainees who claimed CACI and Titan/L-3 participated in their torture at the Abu Ghraib prison. In a 2-1 decision, a panel of the 4th U.S. Circuit Court of Appeals ruled that the state law claims PMCs are pre-empted by federal authority to manage a war. Appeals court in Va. tosses 2 Abu Ghraib lawsuits, (September 21, 2011), http://www.chron.com/news/article/Appeals-court-in-Va-tosses-2-Abu-Ghraib-lawsuits-2182233.php (September 21, 2011).
Developing a Binding International Convention to Regulate PMC Activity
In an international attempt to overcome the glaring impunity that PMCs enjoy, the United Nations Working Group on the Use of Mercenaries is currently drafting an international convention to regulate activities of private military and security contractors.Press Release, United Nations Office at Geneva, Mercenaries: United Nations Experts Final Go at New International Convention Draft (Apr. 9, 2010), http://www.unog.ch/80256EDD006B9C2E/%28httpNewsByYear_en%29/8A8C701C0CC1D635C1257700002C4FA7?OpenDocument. See also Press Release, United Nations Office at Geneva, “Mercenaries still pose a serious threat to human rights,” Warns UN Expert Body (April 8, 2011), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10923&LangID=E. Focusing on the impact of PMCs on human rights, the Working Group has advocated for the “development of stronger regulation, oversight and monitoring at both national and international levels.”Press Release, United Nations Office at Geneva, Mercenaries: United Nations Experts Final Go at New International Convention Draft (Apr. 9, 2010), http://www.unog.ch/80256EDD006B9C2E/%28httpNewsByYear_en%29/8A8C701C0CC1D635C1257700002C4FA7?OpenDocument. As part of this effort, it has held a series of meetings to review allegations of misconduct by private military contractors submitted to the Working Group by victims and human rights defenders alike.Press Release, United Nations Office at Geneva, Mercenaries: United Nations Experts Final Go at New International Convention Draft (Apr. 9, 2010), http://www.unog.ch/80256EDD006B9C2E/%28httpNewsByYear_en%29/8A8C701C0CC1D635C1257700002C4FA7?OpenDocument. In July 2010, UN permanent missions, nongovernmental organizations, and academics were briefed by the Working Group on the content and scope of a proposal for the draft international convention.Press Release, UN News Centre, UN Experts on Mercenaries Seek Stronger Regulation of Private Security Companies (Jul. 26, 2010), http://www.unog.ch/80256EDD006B9C2E/%28httpNewsByYear_en%29/8A8C701C0CC1D635C1257700002C4FA7?OpenDocumenthttp://www.un.org/apps/news/story.asp?NewsID=35421. The Working Group presented its report and recommendations for an international convention to the UN Human Rights Council in September 2010. Many member states, including Morocco, Egypt, South Africa, and Sudan, as well as other bodies such as the Afghanistan Independent Human Rights Commission expressed support of the Working Group’s proposal for a draft Convention. The U.K. and U.S., however, expressed disagreement, while Switzerland advocated for its own initiative, the Montreux Document—a non-binding International Code of Conduct for Private Security Service Providers. The Montreaux Document is comprised of relevant international legal obligations and good practices for States, PMCs and their personnel to use for regulation of PMCs.INT’L COMMITTEE OF THE RED CROSS, THE MONTREUX DOCUMENT (2008), available at http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf.
Mohammed Kinani speaks about the killing of his nine-year old son, Ali Mohammed Kinani by Blackwater military contractors in Baghdad, Iraq and his struggle for justice.
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