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US Contractor Banned by Iraq Over ShootingsA spokesman for the Ministry of Interior, Brig. Gen. Abdul Karim Khalaf, said Monday that authorities had canceled the company's license and that the government would prosecute the participants. But under the rules that govern private security contractors here, the Iraqis do not have the legal authority to do so.
A law issued by the American authority in Iraq before the United States handed over sovereignty to Iraqis, Order No. 17, gives the companies immunity from Iraqi law. A security expert based in Baghdad said Monday night that the order, issued in 2004, had never been overturned. Like others, he spoke on the condition of anonymity because the matter remains under official inquiry.What happens to private contractors who kill Iraqis? Maybe nothingBecause of an order promulgated by the Coalition Provisional Authority, the now-defunct American occupation government, there appears to be almost no chance that the contractors involved would be, or could be, successfully prosecuted in any court in Iraq. CPA Order 17 says private contractors working for the U.S. or coalition governments in Iraq are not subject to Iraqi law. Should any attempt be made to prosecute Blackwater in the United States, meanwhile, it's not clear what law, if any, applies. Iraqi security in private handsA decree named Order 17, promulgated by CPA chief Paul Bremer on 26 June 2003, exempts coalition staff both military and civilian from Iraqi legal action.
It also frees contractors - and their contractors in turn, which effectively includes any security hired by firms paid by the US government - from being sued for work which forms part of their contract.
Even if they step outside those boundaries, explicit written permission from the CPA chief is needed for legal action to be allowed.
"So what?'' you might think, since the CPA is now no more.
But its successor body, the US Department of Defense's Project and Contracting Office, looks set to inherit Order 17 - at least till September and possibly till elections due early in 2005. Coalition Provisional Authority Order Number 172) Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts, including licensing and registering employees, businesses and corporations; provided, however, that Contractors shall comply with such applicable licensing and registration laws and regulations if engaging in business or transactions in Iraq other than Contracts. Not withstanding any provisions in this Order, Private Security Companies and their employees operating in Iraq must comply with all CPA Orders, Regulations, Memoranda, and any implementing instructions or regulations governing the existence and activities of Private Security Companies in Iraq, including registration and licensing of weapons and firearms.
3) Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto. Nothing in this provision shall prohibit MNF Personnel from preventing acts of serious misconduct by Contractors, or otherwise temporarily detaining any Contractors who pose a risk of injury to themselves or others, pending expeditious turnover to the appropriate authorities of the Sending State.In all such circumstances, the appropriate senior representative of the Contractor’s Sending State in Iraq shall be notified.Additional Info from 2004U.S. Immunity in Iraq Will Go Beyond June 30From 2007 Private Security Contractors in Iraq - Background, Legal Status,and Other Issues
Contractors working with the U.S. military (or with any of the coalition forces) in Iraq are non-combatants who have no combat immunity under international law if they engage in hostilities, and whose conduct may be attributable to the United States. Section 522 of the John Warner National Defense Authorization Act for FY2007 (P.L. 109-364) makes military contractors supporting the Armed Forces in Iraq subject to court-martial, but until the Department of Defense publishes implementing regulations,it is more likely that contractors who commit crimes in Iraq would be prosecuted under criminal statutes that apply extra-territorially or within the special maritime and territorial jurisdiction of the United States, or by means of the Military Extraterritorial Jurisdiction Act (MEJA). Iraqi courts do not have jurisdiction to prosecute contractors without the permission of the relevant member country of the Multi-National Forces in Iraq.
It is possible that some contractors may remain outside the jurisdiction of U.S. courts, civil or military, for improper conduct in Iraq.
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