Jus Post Blackwater: Private Military Companies and Justice after War

Left: Mohammed Kinani holds a photo of his son Ali, a victim of the Nisour square Massacre (The Nation). Right: Supporters of Blackwater operatives involved in Nisour Square stand outside their trial (Astrid Riecken Via Getty Images).

"How do we go back there, and face a room full of crippled Iraqis and family members of the deceased, and tell them the U.S. D.O.J. decided that they didn't want to go too hard on the men who shot everyone that day?"

This question was asked by FBI agent John Patarini in a 2008 email discussing the US Department of Justice’s debate around the charges to be levied at Blackwater, the private military company (PMC) involved in the 2007 Nisour Square massacre in Iraq that lead to the death and injury of at least 31 Iraqi civilians. No insurgents were found to be involved and US military personnel considered the contractors' actions to be unnecessary and excessive.

Although the contractors were ostensibly in Iraq as security guards, when the event occurred they weren't guarding anyone and, according to military personnel, could have escaped unharmed in their armoured vehicles even if they had actually been under attack. Along with issues of proportionality and correct discrimination of targets, the massacre and subsequent trial highlights the ethical issues around the classification of PMCs in warzones.

Above: The white Kia determined to be a threat by the contractors. Below: Diagrams of their armoured vehicles. (Via Just Security)

The case has received notoriety not only due to the incident itself but also because of the long and flawed process of trying those involved. One of the accused, Nicholas Slatten’s murder conviction is to be retried on June 11 along with re-sentencing of three other men who were convicted of (along with multiple counts of manslaughter and attempted manslaughter) using a machine gun to carry out a violent crime.

                                       

An RT Report discussing the events at Nisour Square and the trial surrounding them

Patarini's quote above is referring to the debate over this last offence and whether defendants’ carrying and use of machine guns should be included in their charges and sentencing. The appeals court ruling that it shouldn't be is one of the major reasons behind the re-sentencing of the three men. The judges ruled that the 30-year sentences were “grossly disproportionate to their culpability for using government-issued weapons in a war zone”, as the law was designed to punish those who carried such weapons with the intention of committing violent crimes.

Blackwater Contractors on Trial: Paul Slough, Dustin Heard, Evan Liberty and Nicholas Slatten (via The National)

This begs the question - was carrying machine guns with the intention of committing violent crimes exactly what these contractors were doing?

At a glance, it appears that armed security divisions of PMCs might be illegal under the 1989 Mercenary Act, as they are ostensibly private individuals involved in armed conflict in foreign countries for profit. The reality is not so simple however, as Policy Analyst Michael Scheimer has explored. The points under the definition of a mercenary are treated as cumulative, which means that PMCs only have to dodge one of the criteria to avoid being classified as mercenaries. And under each criteria there are a range of technicalities that they could use to do so - if they were ever charged with mercenary action in the first place, which is not the case.

So the legal status of armed contractors is up in the air largely due to a lack of directly applicable law. Can just war theory provide anything more concrete on the matter?

Other sources have looked in depth into the uneasy place of PMCs within jus ad bellum and jus in bello, so here I will focus on jus post bellum, the more recent and less-explored third component of just war theory, and the one that seems most applicable when dealing with post-conflict trials. This framework, which is still under development, deals with decisions and actions during and after the conclusion of a war.

One suggestion for what components jus post bellum might be composed of comes from Brian Orend, a just war scholar who advocates a second Geneva convention to legislate actions after war. While Orend may be correct in his assertion that current laws do not adequately deal with justice after conflict, his notion of post bellum discrimination also fails to adequately account for PMCs. Similar to jus in bello's principle of discrimination for targets during war, this principle states that it is necessary to discriminate between political and military leaders, soldiers, and the civilian population after war in regards to what punishment may be meted out.

Just War theorists new and old: Brian Orend and Thomas Aquinas

Foreign contractors in Iraq do not fit neatly into any of these categories. Although the appeals court decided that the Nisour Square accused were legitimately carrying firearms, PMCs do not come under military law or hierarchies and they were neither licensed by the Iraqi government nor often able to be held accountable to Iraqi laws. When discussing Iraq Orend has remained largely silent about contractors. His notion of a post bellum responsibility of the 'victor' to continue to provide security and training for locals doesn't mention contractors or distinguish them from standard military and as such his framework fails to take into account a major part of modern conflict.

Leaders of PMCs, while not civilians, are neither military nor political leaders, although they are often closely involved with them. The legal treatment of corporate entities serves to set them apart - as is clear in another legal case where Academi, the newest incarnation of Blackwater, settled with a fine in response to an alleged 288 weapons violations. The company has continued with business as usual, with current leaders brushing aside responsibility for these past crimes with a statement that none of the executives involved have ever worked for the current ownership. The conglomerate nature of PMCs and their tendency to rebrand and move on makes it difficult for them to be held accountable and this behaviour seems more in line with a dodgy mechanic trying to avoid the small claims court than a legitimate party to a just war.

The newest face of Blackwater, rebranded and trying to separate itself from the crimes of its predecessor

Some scholars such as Mark Freeman and Drazen Djukic suggest that the concept of transitional justice should play a key role in jus post bellum. Theories of transitional justice focus on the use of mechanisms such as truth commissions, criminal prosecution, victim reparation and institutional reform in the transitional period after a regime change or armed conflict. Foreign contractors and indeed even foreign armies fit poorly into this framework as they are not based in the country where post war processes are occurring and often end up being charged under the law of their home country, as is the case with the Nisour Square massacres.

A survivor of  Nisour Square shows pictures of himself as part of his testimony (Ahmad Al-Rubaye via Vox)

Certainly the legal cases against Blackwater seem to run completely contrary to any notion of victim-centred justice: the retrial of the Nisour Square massacre is forcing victims to go through the arduous process of giving testimony again, likely in order to see a lesser sentence imposed. Likewise the $42 million dollar settlement for Blackwater’s weapon charges, that included export to and involvement in foreign countries such as Afghanistan and South Sudan, was paid to the US State department, and is unlikely to make its way in any capacity to those that were harmed by Blackwater’s actions.

Some of the Nisour Square massacre victims (via Just Security)

Current conceptions of jus post bellum have little in them that is directly applicable to PMCs, and more development is needed before it can provide any insight into how to deal post-war with the actions of companies like Blackwater. However, this position is hardly unique to just war theory -current international law lacks the terminology and legislation to deal with cases like this one. While theory and the law play catch up with the reality of PMCs, there may be court cases post Blackwater, but there is little that could actually be called justice.