They're getting away with murder: how the International Criminal Court can prosecute U.S. private security contractors for the Nisour Square tragedy and why it should.

• Published date: 22 March 2012
• Author: Whitten, Justin H.
• Date: 22 March 2012

On September 16, 2007 private security contractors (1) working for Blackwater (2) shot and killed seventeen Iraqi civilians in Nisour Square; (3) twenty-four were wounded. (4) Less than a month after the tragedy, the New York Times reported federal investigators found that fourteen of the seventeen shooting deaths were unjustified. (5) Described by U.S. government officials as a "watershed moment," the shooting in Nisour Square highlighted the need for increased oversight and accountability of private-security contractors in Iraq. (6) In December 2007, the U.S. State Department and the U.S. Department of Defense signed a memorandum of agreement wherein each agency agreed to develop and implement standards for managing private-security contractors' operations, coordinating joint investigations of private-security-contractor personnel, and holding private-security contractors legally accountable. (7) Yet the issue remains: how will those responsible for Nisour Square be brought to justice? (8) This Note argues that Iraq, acting on its own, could assent to the jurisdiction of the International Criminal Court ("ICC") and submit the Nisour Square tragedy to the ICC for prosecution as a war crime. (9) Furthermore, this Note explains why the United States must assist the ICC in prosecuting the Nisour Square tragedy as a war crime in order to authenticate the United States' contention that it is committed to justice for a liberated Iraq.

Although increased oversight may help prevent future tragedies, (10) prosecution of those responsible for the tragedy is necessary to make clear three points: (1) contractors do not operate outside the law; (2) the United States acknowledges that these acts were unlawful and outside the scope of duty for any contractor; and (3) the United States is committed to impartial justice for Iraqi citizens, and to that end, will aggressively prosecute war crimes committed in Iraq by U.S. contractors like Blackwater. This Note focuses on how the ICC could prosecute the individuals responsible for the Nisour Square tragedy and does not discuss criminal liability for the business entities employing those individuals.

This Note analyzes how the ICC could exert jurisdiction over the events of Nisour Square. (11) Part I provides a background on the Nisour Square Tragedy. Part II explains how to get the Nisour Square tragedy under ICC jurisdiction. First, Iraq could accept the jurisdiction of the ICC and then submit the Nisour Square tragedy for prosecution pursuant to the terms of the Rome Statute. Then, this Note considers subject matter jurisdiction and addresses mistakes in the U.S. prosecution, and how those mistakes cast doubt on the willingness of U.S. prosecutors to prosecute contractors such as Blackwater. While this doubt is not proof of unwillingness, this Note argues that it does satisfy the jurisdictional triggers of the ICC when coupled with worldwide reaction to contractor abuses in Iraq. Part II also discusses legislative efforts by the United States to close jurisdictional gaps for the extraterritorial applicability of U.S. law to contractors working for agencies in Iraq other than the Department of Defense. Part III argues that, unlike other cases where the ICC has prosecuted individuals for crimes against humanity or war crimes, prosecuting Blackwater individuals for war crimes in connection with Nisour Square does not threaten to destabilize or derail any peace or peace process in the region. (12) Part III also addresses the policy behind holding private-security contractors individually criminally responsible and argues that it is in the interest of the international community to adjudicate war crimes committed by private security contractors in Iraq on an international level rather than a national level. (13)

I. BACKGROUND: THE USE OF U.S. CONTRACTORS AND THE NISOUR SQUARE TRAGEDY

Iraq has been a sovereign state since June 28, 2004, when the interim government following the U.S. invasion in 2003, the Coalition Provisional Authority, transferred control to the Iraqi Interim Government. (14) At the time of the shooting in Nisour Square, the private security company Blackwater was under contract to provide protective services for the U.S. State Department. (15) Both American and Iraqi investigators questioned the events at Nisour Square, (16) and the U.S. Federal Bureau of Investigation ("FBI") sent an investigative team to determine whether criminal actions occurred. (17) In December of 2008, a U.S. grand jury indicted five Blackwater members in connection with the events at Nisour Square. (18)

The Nisour Square tragedy was not the first time the issue of U.S. security contractor accountability garnered international attention. In 2004, U.S. security contractors had been involved in the infamous Abu Ghraib prison scandal, where U.S. security contractors and military personnel abused prisoners. (19)

The casualties of Nisour Square enraged the Iraqi government and further highlighted the growing concern about civilian-contractor accountability when working for the U.S. government. (20) The United States had used private security contractors in other situations before the 2003 invasion into Iraq. (21) According to the U.S. Congressional Research Service, however, the operation in Iraq was "the first time the United States has depended so extensively on contractors to provide security in a hostile environment...." (22)

In the wake of the Nisour Square tragedy, the U.S. Congressional Committee of Oversight and Government Reform acknowledged the existence of "serious questions about Blackwater's performance.... [The Nisour Square tragedy] is just the latest in a series of troubling Blackwater incidents." (23)

II. GETTING INTO THE INTERNATIONAL CRIMINAL COURT: OVERCOMING JURISDICTION ISSUES

Neither Iraq nor the United States has accepted the jurisdiction of the ICC. (24) The Rome Statute defines the Jurisdiction of the ICC. (25) Article 13(a)-(c) of the Rome Statute specifies the three circumstances under which the ICC may exercise jurisdiction: (1) a state party in which the crime was committed refers a situation to the ICC Prosecutor; (2) pursuant to Chapter VII of the Charter of the United Nations, the Security Council refers a situation to the Prosecutor, or (3) the Prosecutor acting proprio motu (by his or her own initiative) prompts an investigation as allowed by Article 15. (26) Of the three, the most viable option is the first: for Iraq to accept the jurisdiction of the ICC thereby becoming a state party that can refer the Nisour Square tragedy to the ICC. (27)

A. Personal Jurisdiction

A referral under Article 13(a) of the Rome Statute must be made by a "State Party." (28) Although Iraq is not currently a State Party, Iraq could become a State Party and retroactively refer the situation to the ICC (29) pursuant to Articles 12(1), 12(2)(a), and 12(3) of the Rome Statute.

Iraq could become a State Party by accepting the jurisdiction of the ICC pursuant to Article 12(1). Once Iraq becomes a State Party, then the ICC could have jurisdiction under Article 12(2)(a), because the Nisour Square tragedy occurred within the territory of Iraq. Finally, there is the issue of retroactive jurisdiction to permit the ICC to prosecute the Nisour Square Tragedy. Article 11(2) establishes that in circumstances where a State Party accepts the jurisdiction of the ICC after the Rome Statute entered into force, "[t]he Court may exercise its jurisdiction only with respect to crimes committed after entry into force of this Statute for that State...." (30) In other words, there appears to be a ban on retroactive jurisdiction. However, Article 11(2) provides an exception to this ban on retroactive jurisdiction if the State Party makes a declaration pursuant to Article 12(3). (31) Under this exception, Iraq could lodge a declaration with the Registrar of the ICC to retroactively establish the Court's jurisdiction over the crimes committed by private security contractors operating in Iraq since 2003.

B. Subject Matter Jurisdiction

Establishing Iraq's status as a State Party eligible to refer the Nisour Square tragedy to the ICC is just the first step. Next, Iraq would need to show that the Nisour Square tragedy is a crime within the subject matter jurisdiction of the ICC according to Article 5 of the Rome Statute. (32) Iraq can satisfy this requirement by submitting the Nisour Square shootings as war crimes as defined by Article 8 of the Rome Statute.(33)

Article 8(1) of the Rome Statute has a jurisdictional trigger that dictates that the ICC has "jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes." (34) It is unclear whether the phrase "in particular" means exclusively such that war crimes cannot be isolated acts but must be acts committed as "part of a plan or policy" or "large-scale commission." (35)

1. Two-Prong Analysis of the "In Particular" Language

A two-pronged analysis helps clarify how the words "in particular" may limit the jurisdiction of the ICC: (1) reviewing the drafting documents to ascertain the intentions and concessions of the states who participated in drafting the Rome Statute, and (2) referring to the Office of the Prosecutor's interpretation of the words "in particular" in Article 8(1) of the Rome Statute. The words "in particular" exist in Article 8(1) as a result of the United States' determined effort to limit the jurisdiction of the ICC. (36) The United States wanted to use the word "only" such that the ICC would "only" have jurisdiction over war crimes that are part of a "plan or policy" or "large-scale commission." (37) A majority of states wanted no jurisdictional threshold, meaning war crimes would include a single event outside of a plan, policy, or large-scale commission. (38)

The international community wanted the United States to become a member of the ICC, so even though the...