JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that US legislation now on the books would allow Blackwater personnel reasonably accused of the unlawful killing of persons in Iraq to be prosecuted in US federal or military courts…

Does the United States have extraterritorial legislation that would currently allow prosecution of Blackwater personnel who are reasonably accused of the unlawful killing of persons in Iraq? If so, would prosecution be possible in a federal district court or certain military tribunals? The general answer to both these questions is "yes."

There are several possible statutory bases for prosecution. One that is more problematic would involve use of the Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3261. The statute applies extraterritorially to “whoever engages in conduct outside the United States” that would be conduct criminally proscribed had the conduct been engaged “within the special maritime and territorial jurisdiction of the United States,” but the conduct of those who are not members of the armed forces of the United States would have to have been engaged in by a person who was (1) “employed by” U.S. armed forces, which is not typically the case with Blackwater personnel who operate under the auspices of the Department of State, or (2) “accompanying” U.S. armed forces outside the United States. The primary issue might be whether or not Blackwater personnel are “accompanying” the armed forces because of the widespread use of Blackwater personnel in an active theater of war to perform security functions that serve or supplement the overall mission of the military and the United States more generally during the war in Iraq. Where the U.S. is an occupying power, this type of accompaniment may be more readily understood. On the other hand, would they “accompany” the armed forces only where a specific mission was coordinated with U.S. military efforts?

Far easier would be prosecution under two sets of federal legislation that allow prosecution of relevant war crimes in federal district courts. The first is the War Crimes Act, 18 U.S.C. § 2441. This statute allows prosecution, for example, of those who are U.S. nationals who commit a relevant war crime outside the United States. Listed war crimes include some violations of the 1907 Hague Convention No. IV, including killing or wounding “treacherously,” killing or wounding those who have no means of defense who have “surrendered,” and use of weapons or bullets of a nature to cause unnecessary suffering. More clearly at stake is the statutory listing of violations of common Article 3 of the 1949 Geneva Conventions, which expressly covers “violence to life and person, in particular murder of all kinds” of “persons taking no active part in the hostilities.” Today, customary international law reflected in common Article 3 provides a set of minimum duties, rights, and competencies in any armed conflict, although it was originally designed to apply to cases of insurgency. The Supreme Court’s opinion in Hamdan and the concurring opinion of Justice Kennedy generally affirm this point about Geneva law.

The reach of common Article 3 (and the customary international law of war reflected therein) to any person who engages in proscribed conduct against any person who is not taking a direct part in armed hostilities is one reason why it is appropriate to prosecute members of al Qaeda who violate the laws of war in Afghanistan or Iraq, thus demonstrating a certain irony perhaps with respect to the reach of federal law to both Blackwater and al Qaeda personnel “if the facts fit.” Nonetheless, every violation of common Article 3 (and any other law of war) is a war crime over which there is universal jurisdiction and a universal duty to initiate prosecution or extradite. It is also of interest that since members of Blackwater and members of al Qaeda are not members of the regular armed forces of a party to an armed conflict, they are not “combatants” [see, e.g., Geoffrey S. Corn, Murky “Blackwater’ and the Direct Participation Dilemma, previously in JURIST], they are not entitled to combatant immunity with respect to the killing of persons who are lawful military targets (such as those who are taking an active part in hostilities), and they are unprivileged fighters who are subject to prosecution for murder, manslaughter, and other crimes under relevant domestic law (e.g., Iraqi or U.S. laws, except for any immunity that might pertain with respect to Iraqi law). Contrary to the views of this Administration, however, merely fighting as an unprivileged fighter is not a war crime.

Another set of federal laws allows prosecution of any violation of the laws of war as offenses against the laws of the United States in the federal district courts. As recognized by the Supreme Court in cases such as Ex parte Quirin and In re Yamashita, the precursor to 10 U.S.C. § 818 incorporates the laws of war by references as offenses against the laws of the United States. Under 18 U.S.C. § 3231, all offenses against the laws of the United States can be prosecuted within the federal district courts, whether or not there is concurrent jurisdiction in any military tribunal. These points have been documented in 50 Tex. L. Rev. 6 (1971) and elsewhere. It would also be possible to prosecute civilians in a properly constituted military commission in a war-related occupied territory and, possibly, in a general courts-martial in a theater of war in time of war if such a prosecution can survive a Fifth Amendment challenge under the Supreme Court’s decision in 1957 in Reid v. Covet (which seemed to emphasize that that case addressed the impropriety of military tribunal jurisdiction over U.S. civilians in time of peace).

As documented in my recent book Beyond the Law, however, “for more than five years the Bush administration has furthered a general policy of impunity by refusing to prosecute any person of any nationality under the War Crimes Act or alternative legislation, the torture statute, genocide legislation, and legislation permitting prosecution of certain civilians employed by or accompanying U.S. military forces abroad.” For example, the Administration refuses to prosecute memo-writers who have abetted what President Bush admitted in September 2006 is his “program” of (1) secret detention (or forced disappearance and the per se war crime and “grave breach” of Geneva law involving the transfer of persons out of occupied territory), and (2) “tough” interrogation tactics (which are violative of several treaties of the United States and customary international laws, as documented most recently in “Beyond the Law”), and those who authorized such criminal activity during what a former insider has described as a “common, unifying” plan devised by the “inner circle” to engage in “coercive interrogation.” Only a few of the direct perpetrators of the common plan have been prosecuted in military fora.

Finally, each time a Blackwater convoy roars through Iraqi streets, ignoring Iraqi traffic laws, bumping into cars, and at times shooting people, the conduct symbolizes the lack of law and order and safety from violence that is generally extant in Iraq — a symbol of the failure of the Administration’s policies in Iraq.

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former JAG officer in the U
.S. Army, and author of Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror (Cambridge University Press 2007).

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