HOW SHE SEES IT Outside contractors and justice

By KATHLEEN CAHILL
WASHINGTON POST
In Iraq and elsewhere, private contractors now perform tasks that were once the exclusive province of soldiers, raising questions about not only where civilians fit in the chain of command but also their legal status. The issue has taken on new urgency with the suggestion that civilians may have been among those responsible for the abuse of Iraqi prisoners at Abu Ghraib prison.
How, then, to describe the legal status of a private contractor in a war zone? In a word, murky.
"The murkiness is not in the nature of the crimes [if proven] but in the status of those accused and what jurisdiction they would fall under," said P.W. Singer, author of "Corporate Warriors" and a fellow at the Brookings Institution.
Unlike soldiers, contractors are not subject to the Uniform Code of Military Justice, the military's own rule of law. They are, however, subject to the Geneva Conventions, Singer said. "The Geneva Conventions apply to everyone who is involved in warfare. They are very specific about identifying violations of laws of war. But they are insufficient in identifying the status of all those who are playing a role in modern-day warfare."
The question, as it applies to Abu Ghraib, is not whether the alleged crimes are a violation of the Geneva Conventions, Singer said. "That seems clear from the [Pentagon's] Taguba report. The question is what do you do about it. You have a clear answer for the soldiers. There's no clear answer, no equivalent action on the private military contractor side," he said.
Possibilities
There are several possibilities.
Contractors can be tried in U.S. federal courts. If the evidence suggests war crimes, they might be charged under the U.S. War Crimes Act of 1996, which defines such crimes as any grave breach of the 1949 Geneva Conventions, such as torture or inhuman treatment.
Normally, contractors are also subject to the laws of the country in which they work. But given the absence of a functioning judicial system in Iraq, a trial there would seem unlikely. Moreover, The Washington Post has reported that, according to the Pentagon, if a foreign contractor is accused of a crime that occurred while performing official duties under contract to the Coalition Provisional Authority or coalition forces, he is immune from Iraqi law. If the alleged crime occurred outside his official employment, he would be subject to Iraqi law only if the CPA administrator agreed to allow legal action to proceed.
The U.S. Department of Justice might also be in a position to bring charges against contractors under the Military Extraterritorial Jurisdiction Act of 2000, a law that has never been tested in court. Congress passed the act subject to the Department of Defense saying precisely how it would be used, noted Gary Solis, a law professor at Georgetown University. Four years later, he said, DOD still hasn't drawn up that guidance.