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Private Security Companies and immunity from prosecution

Thanks to a recent post over at OpinioJuris.com my attention was drawn to the fact that the Iraqi government plans to revoke the immunity from prosecution granted to so-called private security companies operating in the country. This immunity is currently based on CPA (Coalition Provision Authority) Order 17. According to a spokesperson, the Iraqi government „decided to scrap the article pertaining to security companies operating in Iraq that was issued by the CPA (Coalition Provision Authority) in 2004“. This obviously should be linked to the claim filed in the USA against Blackwater, on which we reported earlier. But what might the legal and factual consequences of such a revocation be?

Pursuant to Section 2 (1) Order 17 “the MNF (Multi-National Force), the CPA, Foreign Liaison Missions, their Personnel, property, funds and assets, and all International Consultants shall be immune from Iraqi legal process.” When it comes to private security companies, Section 4 (3) Order 17 specifies this provision by stating that the „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.“ Thus (argumentum e contrario) any arbitrary killing of civilians by members of private security companies (as arguably is the case in the “Blackwater-incident” of 16 September 2007), which hardly can be construed as to be performed “pursuant to the terms and conditions of a Contract”, would not be covered by the immunity from prosecution. However, Section 4 (5) Order 17 provides that “Certification by the Sending State that its Contractor acted pursuant to the terms and conditions of the Contract shall, in any Iraqi legal process, be conclusive evidence of the facts so certified”. Assuming that the USA government (or any other government of a “Sending State”) would provide such certification in order to protect its contractors and thereby ensure future commitment of the contractor, any case brought before Iraqi courts would have to be rejected due to lack of jurisdiction. But the situation would most probably be a different one if Order 17, and thereby the possibility to provide “clearing-certification” under Section 4 (5), be removed.

Furthermore, Order 17 does already contain the possibility to waive the legal immunity from jurisdiction. Following from Section 5 Order 17 the immunity may be waived by the relevant Sending State. When it comes to the Blackwater Company, this would necessitate a revocation of the immunity by the USA. The fact that it is unlikely that the USA would wave the immunity of an important Contractor such as Blackwater, is a further aspect which might explain why the Iraqi government did not request a waiver of immunity pursuant to Section 5 but indeed threatens to reject Order 17 (or the relevant provisions).

Eventually, when scrutinizing the issue of immunity from Iraqi legal process through the lens of public international law, it would seem rather unlikely that at least serious violations of international law, such as war crimes, could be wholly immunized. The fight against impunity has obviously come a long (although not all the) way and it therefore is at least theoretically likely that the claim of immunity pursuant to Section 4 (3) Order 17 would not stand before Iraqi courts applying public international law. However, in such grave cases it cannot be assumed that the USA would show any unwillingness to exercise jurisdiction itself making any activity by Iraqi courts unnecessary.

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