Global Policy Forum

States Have an Obligation to Prosecute Perpetrators of War Crimes in their Courts

Private military contractors (also known as privatized military firms) provide a range of services to the U.S. armed forces in the United States and abroad. These services include preparing meals for soldiers, driving supply trucks, providing military training, acting as security guards, and, as recently reported, conducting interrogations in detention facilities. Although the military use of contractors in the field dates back to the Revolutionary War, the U.S. military in recent years has greatly increased its deployment of private military contractors. As many as 20,000 contractors are currently believed to be in Iraq.

Recent reports of abuse by military contractors raise a number of important legal issues under both international and U.S. law.

What is the status under international law of private military contractors during a military occupation?

The 1949 Geneva Conventions distinguish between members of the armed forces (combatants) and civilians. Contractors are considered to be civilians authorized to accompany the force in the field. As such they generally cannot be the intentional object of military attack. They are however often at greater risk of becoming "collateral damage" because of their frequent presence in or near military targets, such as army bases. Contractors may lose their legal protection if they are used in direct support of military operations; in such cases they would become subject to direct attack so long as they directly participated in the hostilities.

Can a contractor be responsible for committing war crimes?

Civilians can commit war crimes, which are serious violations of the laws of war (including "grave breaches" of the Geneva Conventions). Torture and the inhuman treatment of prisoners are recognized as war crimes under the Geneva Conventions, as well as under customary laws of war. States have an obligation to prosecute perpetrators of war crimes in their courts; states are also obligated to punish perpetrators of war crimes no matter what their nationality or where the crime was committed. Whatever the level of individual responsibility, the state with authority over the military contractor remains responsible under international law for the contractor's actions. That is, the United States cannot avoid its international legal obligations to ensure that prisoners are properly treated by hiring contractors.

Can U.S. contractors in Iraq be prosecuted under domestic (Iraqi) law?

Licensed contractors with the U.S. government reportedly sign agreements that provide them with immunity from prosecution under Iraqi law. This is probably consistent with U.S. powers as an occupying power under the Hague Regulations of 1907 and the Geneva Conventions.

However, crimes of "universal jurisdiction" – that is, crimes so serious, such as war crimes and torture, that any state has the right to prosecute them – are not protected by immunity agreements. Such crimes could be prosecuted by Iraqi courts.

Can contractors be prosecuted under U.S. military law?

U.S. civilians can only be tried by U.S. courts-martial during a declared war. As a U.S. military field manual states:

Contractor employees are not subject to military law under the UCMJ [Uniform Code of Military Justice] when accompanying US forces, except during a declared war. Maintaining discipline of contractor employees is the responsibility of the contractor's management structure, not the military chain of command.

Can contractors be prosecuted under U.S. federal law?

Contractors may be prosecuted, depending on the offense. Military contractors who are U.S. nationals could be prosecuted by a U.S. federal court under the U.S. War Crimes Act of 1996 (18 U.S.C. 2441). The act defines a war crime as any grave breach of the 1949 Geneva Conventions (such as torture or inhuman treatment) or any violation of common article 3 of the Geneva Conventions (which not only includes torture, but also "outrages upon personal dignity" and "humiliating and degrading treatment"). Penalties include fines or imprisonment for life or any term of years, and the death penalty if death results to the victim.

Contractors, such as those serving as military interrogators, could also be prosecuted under the federal anti-torture statute (18 U.S.C. 2340), which prohibits torture by anyone who commits an act of torture outside of the United States. A person found guilty under the act can be incarcerated for up to 20 years or receive the death penalty if the torture results in the victim's death.

Contractors working for the Department of Defense might also be prosecuted under the Military Extraterritorial Jurisdiction Act of 2000 (Public Law 106-778), known as MEJA. MEJA was enacted in 2000 primarily to protect U.S. soldiers and their dependents on U.S. bases abroad, who became victims of crimes committed by military contractors with effective immunity from prosecution.

MEJA permits the prosecution in federal court of U.S. civilians who, while employed by or accompanying U.S. forces abroad, commit certain crimes. Generally, the crimes covered are any federal criminal offense punishable by imprisonment for more than one year. MEJA authorizes Defense Department law enforcement personnel to arrest suspected offenders and specifies procedures for the transfer of accused individuals to the United States.

Prosecutions under the Military Extraterritorial Jurisdiction Act would be handled by federal civilian authorities. The MEJA has not fully been tested in part because the Defense Department had not issued implementing regulations required by the law. However, at least two cases were brought under the MEJA prior to such regulations went into effect on September 29, 2004. In July 2004, the first prosecution under the MEJA ended in a mistrial after jurors became deadlocked in the case of a Southern California woman who admitted to stabbing to death her Air Force sergeant husband in Turkey.

On June 17, 2004, a federal grand jury indicted David Passaro, a contractor working for the CIA, for committing acts of torture in Afghanistan. Passaro was indicted for assault with a dangerous weapon at a U.S. army base near the town of Asadabad in Afghanistan. As MEJA does not provide jurisdiction over non-Defense Department contractors, the government asserted jurisdiction on the basis of Title 18, section 7(9)(A) of the U.S. code, which extends federal jurisdiction to U.S. "diplomatic, consular, military or other U.S. government missions or entities in foreign states, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership."

Other contractors could be prosecuted in federal courts on the basis that the alleged act took place on a U.S. military base abroad. Many of the contractors working in Iraq worked for companies that had contracts not with the Defense Department, but with the Department of the Interior.