Rule of law: Navigating the muddy waters of private security firms

A US court’s conviction of Blackwater contractors for killing Iraqi civilians shines a light on the intractable problem of policing private security contractors – both globally and in Israel.

East Jerusalem's Silwan neighborhood (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
East Jerusalem's Silwan neighborhood
A US federal court’s October 22 conviction of four Blackwater private security contractors of murder, manslaughter and other crimes, for gunning down 17 Iraqi civilians in 2007, has shaken up an already heated debate on the role and oversight of such contractors internationally.
The use of private security contractors ballooned during the early years of the Iraq and Afghanistan wars and US national building projects there, and drew attention to an issue which had long existed out of the spotlight.
Private contractors can fulfill a variety of quasi- military jobs, from guarding US embassies and foreign leaders to actually fighting terrorists in place of official military personnel.
But they exist in an odd legal limbo. On one hand, they are technically civilians; on the other, they act like soldiers.
Add the fact that many are being employed to fight and possibly kill foreign citizens in foreign countries, and it can be confusing to discern whether civilian or military courts should judge them, what laws apply and how to obtain testimony from foreign witnesses.
This confusion breeds significant delay, with offenses committed by contractors slipping through the judicial cracks.
What should the role and limits of private contractors be in carrying out quasi-military functions on behalf of sovereign governments? This includes in Israel where, for example, private security contractors play a significant role in national security, protecting West Bank settlements as well as east Jerusalem.
What oversight should there be, and are governments sufficiently policing and punishing such contractors for abuse of power – which can go as far as murder? Where there are offenses, are contractors escaping liability in the legal limbo they occupy between soldier and civilian? Viewing the issue in terms of US-related problems, the Blackwater ruling provides mixed messages.
On one hand, it took seven years for the US justice system to come down on the contractors, due to some of the above-mentioned complications, for what appears to have clearly been an unjustified killing spree of Iraqi civilians with no legal self-defense argument.
Granted, there were some unique extenuating pressures on Blackwater’s personnel. But coping with those pressures is part of the responsibility of being in an armed force in a foreign country, and these circumstances did not serve as a legal defense in the case – and could not ultimately justify shooting unarmed, non-attacking civilians.
The US’s unimpressive record on the case also included a court originally throwing out the indictments against the now-convicted Blackwater contractors.
Originally, the indictments were thrown out because they were essentially based on confessions the contractors made to US State Department officials that were not supposed to be used against them criminally. After significant time had passed, a US federal appeals court heroically jumped in to send the case back to the lower court for a trial which led to the convictions, but the handling of the incident by the US prosecution and court systems was anything but smooth and prompt.
THE US is far from the only country to draw criticism for its policing of its private security contractors.
In September, for instance, the NGO Yesh Din published a report on the massive number of private security contractors responsible for much of security for West Bank Jewish settlements.
The report, along with conversations or reviews of past reports, statements and court documents with B’Tselem and the Association for Civil Rights in Israel, reveals heavy criticism of such contractors’ alleged abuse of power in other areas, failed oversight of settler contractors and a number of violent incidents. Some of the incidents also involve Silwan and the Old City where, in the past, ACRI has said there are over 350 private security guards.
In one group of incidents, contractors have been convicted of crimes or dismissed from their positions, though none were convicted of murder or got extensive jail time as in the Blackwater case.
The Yesh Din report says that in April 2005, a contractor from Petzael shot and killed a Palestinian who was relieving himself near the settlement’s hothouses. The report says the contractor was eventually convicted of negligent manslaughter and sentenced to 200 hours of community service.
On December 14, 2005, Nokdim security contractor Baruch Feldbaum was sentenced to one year in prison and convicted in a plea bargain of assaulting and injuring Palestinians in aggravated circumstances.
In another incident, Yesh Din said a letter from the IDF indicated that in October 2010, a contractor from Talmon was dismissed for firing on Palestinians near the settlement’s fence.
But in many more incidents, cases have been closed without indictments; sometimes, according to the NGOs involved in the cases, under questionable circumstances and with significant unexplained delay (as in the US).
According to ACRI, in September 2010, Silwan resident Samer Sarhan was shot and killed by a private contractor, yet it took the state well over two years to decide whether to indict him. The Jerusalem District Attorney’s Office eventually decided not to indict the contractor, claiming there was not enough evidence to bring him to trial – especially since the bullet that killed Sarhan, a key piece of evidence, had gotten lost.
Lawyer Asnat Bartur said she had filed an appeal against closure of the case, and expressed doubt about the circumstances of the state losing the bullet. Bartur added that though the case was transferred in May to the State Attorney’s Office’s appeals division, there had still been no decision.
In another incident on January 28, 2011 covered in the Yesh Din report, several settlers allegedly traveled from Kfar Etzion to Beit Umar firing shots at some Palestinians, killing one and injuring another. The report added that, after an extensive delay, the IDF closed the investigation on July 31, 2013 without filing an indictment.
Other incidents involved violence, but not deaths.
The Yesh Din report cited a February 2010 incident in which a Har Bracha contractor allegedly shot and injured Palestinian shepherds grazing hundreds of meters from the settlement fence.
The case was closed without an indictment by the Central District Attorney’s Office.
A February 2014 complaint mentioned by the report was filed against a contractor for allegedly throwing stun grenades and tear gas into the courtyard of the Palestinian Burin village school; the IDF has not yet responded.
The IDF’s response to Yesh Din’s inquiry was that most contractors perform their jobs in a highly faithful and legal manner, and should not be besmirched by “the few instances” of “deviations” where “the appropriate steps are taken.”
Moreover, the accused contractors may have had viable defenses, and the state or the IDF had viable legal reasons for closing each of the above cases.
Furthermore, even if the attacked Palestinians were innocent, misunderstandings occur between neighboring Jewish and Palestinian areas, especially in times of heightened tension.
As already noted, despite the above incidents, Israel has not had an incident involving private contractors with the same volume of deaths (excluding IDF battles) as the Blackwater incident, and has not had a seven-year delay.
But as a whole, the incidents draw into question whether Israel is having similar problems as the US and some other countries, in policing and punishing private contractors performing quasi-military duties.
FROM THE global perspective, the UN Working Group on the use of mercenaries issued a statement regarding the Blackwater convictions on October 27. “We welcome the fact that prosecutions were finally brought, putting an end to the cycle of impunity that prevailed since 2007 and aggravated the suffering of victims and their families,” said Patricia Arias, who heads the five-strong group of independent human rights experts.
“However, such examples of accountability are the exception rather than the rule,” continued Arias. “The difficulty in bringing a prosecution in this case shows the need for an international treaty to address the increasingly significant role that private military companies play in transnational conflicts.”
The UN Working Group has focused specific attention on the need for an international convention to effectively regulate corporate actors whose operations could pose potential threats to human rights. Given the transnational nature of many private military and security contractors’ activities and their flexible corporate structures, since 2005 the UN group and others have pushed for the international community to adopt minimum standards to regulate the contractors – but progress has been slow.
The contractors continue to play, from nations like the US’s point of view, a key role in accomplishing security tasks in foreign countries that can take the less nimble military too long.
There are reports that such contractors still operate in large numbers in Iraq, have operated in Ukraine and operate in a variety of other countries. Indeed, the US Commission on Wartime Contracting estimated that contractors have received nearly $200 billion for work in Iraq and Afghanistan.
A serious international conference on the minimal standards issue is due to take place in December.
Even in the highly speculative case where some binding international standards are reached (there have been some non-binding standards now for a few years), the US and Israel might express general support, but opt out from formally adopting the standards – as they have opted out of joining the International Criminal Court.
The US post-September 11, 2001, has gotten involved in a variety of conflicts with questionable legal justifications, including the recent heightened engagement against Islamic State.
Israel might be concerned that formally committing to the standards could lead to politicized inquisitions and “lawfare” against settlers, going beyond some of the more black-and-white incidents of settler-contractor violence.
This means that, absent an Israeli-Palestinian peace deal – which seems far from the horizon – Israel may continue to struggle with the private contractor issue for some time, as may the US, absent a sudden reduction in international conflicts.