Soldiers of fortune - holding private security contractors accountable: the Alien Tort Claims Act and its potential application to Abtan, et al. v. Blackwater Lodge and Training Center, Inc., et al.

AuthorDahl, Matthew C.

Private security contractors play a prominent role in modern military operations. Of course the use of paid forces is not a new concept. Militaries utilized paid forces for hundreds of years, but technological advances have increased the mobility and firepower of private security contractors. (2) The United States now relies heavily on the private military industry in conducting its worldwide military operations. (3) The U.S. used private security contractors to conduct narcotics intervention operations in Columbia in the 1990's. (4) During the conflict in the Balkans, the U.S. used a private security contractor to train Croat troops to conduct operations against Serbian troops. (5) Contracting out these operations allowed the U.S. to decrease its footprint in these conflicts, or leave no footprint at all. Today the U.S. has as many as 30,000 private security contractors in Iraq. (6) However, repeated reports of misconduct by private security contractors are making the industry endure a level of scrutiny never encountered before. This note will focus on the Alien Tort Claims Act (ATCA) as a civil remedy to the misconduct by private security contractors overseas and how the case law regarding the ATCA will affect the recent lawsuit brought in the case of Abtan v. Blackwater. (7)

  1. THE TREND TOWARD USING PRIVATE MILITARY COMPANIES

    Governments use private security contractors for both practical and political reasons. Private military companies provide a wide range of services from training to post-conflict/reconstruction support to direct military support. (8) On the practical side, using private security contractors allows the military to delegate certain functions it would normally have to perform on its own. This delegation allows the military to focus its forces on higher priority issues. (9) From a political perspective, using private security contractors allows countries to circumvent governmental regulations on how many troops they can send into a conflict area. (10) Governments also benefit politically by utilizing private security contractors because public opinion is less affected by the injury or death of a contractor than an enlisted soldier. (11)

    Private security contractors are used in conflicts of all sizes. Governments all around the world are trending towards outsourcing military and security functions to these private security contractors. (12) Today, several hundred private security firms exist around the world and have a combined annual revenue of $100 billion. (13) Countries in Africa used them in small scale regional conflicts. For example, the government of Sierra Leone hired the South African private security firm Executive Outcomes to conduct direct military operations against a rebel group that took control of major diamond mines in the country. (14)

    The U.S. continues to use them in the larger scale conflicts in Iraq and Afghanistan. (15) Approximately 100,000 contractors are present in Iraq and a significant number of them are security contractors (16) This number is ten times the number of contractors used by the U.S. in the first Persian Gulf War, and is almost equal to the number of active duty military personnel in Iraq. (17)

    The U.S. is growing increasingly more reliant on private security contractors in its operations in Iraq. A 2007 House of Representatives memorandum noted that as of March 2006, 181 private security firms operated in Iraq, employing 48,000 employees. (18) During the reconstruction period in Iraq, the U.S. has spent $3.8 billion on security contractors. (19) Salaries for employees of these contractors can get as high as $33,000 a month. (20) These numbers account for 12.5% of U.S. government spending on reconstruction in Iraq. (21) Notwithstanding this large government expenditure on private security contractors, numerous reports of contractors' misconduct have surfaced while no legal restraints exist to control them. (22)

  2. BLACKWATER

    While hundreds of private security contractors are operating today, this article focuses on just one--Blackwater Worldwide ("Blackwater"). Blackwater is a major private security contractor used by the United States in Iraq, yet it remains controversial due to reports of misconduct by its employees. (23) Blackwater's alleged misconduct in Baghdad in 2007 led to the lawsuit Abtan v. Blackwater. (24)

    Blackwater was founded by Erik Prince--a former Navy SEAL--on December 26, 1996. (25) The idea arose from of a perceived need to offer privatized training for military and law enforcement. (26) In an effort to fulfill this need, Prince purchased 5,000 acres of land in eastern North Carolina for approximately $1.3 million to create the Blackwater campus. (27) Through its first few years Blackwater's business and reputation grew rapidly as a facility offering tactical training for all kinds of government officials. (28) However, the September 11th attacks and the subsequent "War on Terror" changed Blackwater into a major player in the private security industry when it received $5.4 million to guard the CIA's station in Kabul, Afghanistan. (29) Blackwater's role continued to grow and it now has more than $500 million in government contracts. (30)

    Blackwater's operations as a government contractor came under intense scrutiny after an incident at al-Nisoor Square in Baghdad on September 16, 2007. (31) While investigations are still ongoing, the allegations are that unprovoked Blackwater contractors opened fire in a crowded square in Baghdad. (32) The incident resulted in the death of eleven Iraqi civilians and injuries to fourteen. (33) The attack prompted a full governmental investigation into the actions of Blackwater and other security contractors employed by the U.S. government. A memorandum sent out to the House Committee on Oversight and Government Reform reported that internal reports from Blackwater documented 437 incidents in which Blackwater contractors fired their weapons. (34) The reports showed that from January 1 to September 12, 2005, Blackwater engaged in 195 shooting incidents and 163 of those times, Blackwater personnel were the ones who fired first. (35) The reports suggested that the incidents resulted in 16 Iraqi civilian casualties and 162 incidents in which property of Iraqi civilians was damaged. (36)

  3. THE ALIEN TORT CLAIMS ACT (ATCA)

    The Alien Tort Claims Act was passed in 1789 as a means by which citizens of other countries could bring tort actions in the federal district courts of the United States. (37) While the ATCA was passed over two hundred years ago, its use was limited until around 1980. (38) In 1980, the Second Circuit handed down its decision in Filartiga v. Pena-Irala and reintroduced the ATCA as a way to hold actors responsible for their actions even though those actions may have taken place on foreign soil. (39) The Filartiga decision recognized a three-part test--1) an alien 2) must allege a tort 3) committed in violation of the law of nations or a U.S. treaty--in order to bring a suit based on the ATCA. (40) The Second Circuit found for the plaintiffs in Filartiga and held that the ATCA grants jurisdiction for U.S. federal courts over torts identified under international law. (41)

    The Filartiga decision marked the beginning of the federal courts' interpretation and expansion of the reach of the ATCA. Courts later held that individuals, not just sovereign states, could be liable under the ATCA. (42) The courts expressed willingness to construe the ATCA so that: 1) individuals could be held liable under the ATCA for crimes that they commit in furtherance of genocide or war crimes; (43) 2) groups of individuals who are not States, but nonetheless violate international laws; (44) and 3) corporations that work with States to violate international law. (45) The courts also recognized secondary liability as a mechanism to bring parties under the umbrella of the ATCA. (46) This secondary liability theory implicates any actor that "knowingly" aids others by "directly and substantially affecting the commission of [a] crime [violating international law]." (47) Another theory upheld by federal courts that imputes liability under the ATCA is the "joint action" theory. (48) The Southern District of New York said ATCA liability existed under the "joint action" theory if the plaintiff could prove that an individual willfully participated in actions with a State actor to violate international law. (49)

    Federal courts recognize ATCA liability under the theories listed above. In the next section the facts and law of four cases will be analyzed to show how the federal courts construe liability under the ATCA. After that the analyses of those cases will be applied to show how the ATCA can be used in the pending case of Abtan v. Blackwater and in potential future cases.

    1. Filartiga v. Pena-Irala: The Modern Interpretation of the ATCA

      The suit in Filartiga was brought by a doctor in Paraguay whose son was tortured and killed because Dr. Filartiga was a political activist who opposed the government in Paraguay at the time. (50) Following unsuccessful attempts to prosecute Pena-Irala (the man alleged to have tortured and killed Dr. Filartiga's son) in Paraguay, Dr. Filartiga's daughter, Dolly, found Pena-Irala living in New York City and had him arrested by the INS. (51) While Pena-Irala was being held in the United States, the Filartigas filed a complaint in federal court alleging wrongful death and seeking damages in the amount of $10,000,000. (52) The federal court for the Eastern District of New York dismissed the case based on lack of subject matter jurisdiction, but the Second Circuit Court of Appeals upheld jurisdiction based on the ATCA. (53)

      The court analyzed the question of whether the ATCA applied to this suit on two levels. At the first level the court asked whether Pena-Irala's actions violated the "law of nations." A violation of the "law of nations" is a requirement to trigger application of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT