Mary JohnsonInternational Human Rights ClinicCorporate Accountability and the War on Terror

I. Introduction

The tragic attacks of September 11, 2001 (9/11) launched a series of actions by the US government and its allies that have come to be known collectively as the ‘war on terror’. Leaving to one side the question of the appropriateness of the term ‘war’ in this context, this paper will refer to the war on terror as its framework for analysing the actual or potential accountability of US corporations under domestic and international law.

The statements of US Vice President Dick Cheney in the aftermath of 9/11 give some indication of the lengths to which the US government was willing to go to show its strength in the fight against global terrorism. He spoke of working ‘the dark side’, spending time ‘in the shadows’ and using ‘any means at our disposal’ to confront the terrorist threat.1 Some of these shadowy means included concluding contracts with private corporations to carry out the dirty work of the war on terror, from extraordinary renditions to enhanced interrogation techniques. This outsourcing of controversial public functions served a range of expedient purposes from the Bush administration point of view. They shielded the government and the military from direct culpability, dodged the public controversy that would have arisen had the methods been more transparent, and lined the pockets of a handful of Bush cronies in the upper ranks of the defence contractors and other beneficiary companies.

The failure to hold private actors and corporations accountable for their complicity in the egregious crimes committed during the war on terror is deplorable. This accountability gap further besmirches the once-robust American reputation for fairness and justice, now in tatters thanks to Bush-era policies, many of which have been carried over by the Obama administration. While significant political and legal obstacles exist to limit the possibility of holding former government officials accountable for human rights violations during the war on terror, which are beyond the scope of this paper to address, the same justifications do not support curtailment of legal action against private companies. Although domestic actions against corporations have thus far proved fruitless, international law may offer alternatives to seeing justice done for some of the horrors of the war on terror.

Accordingly, this essay will examine the legal framework for holding corporations accountable for human rights violations by using the war on terror as a factual backdrop. Although the diversity of private actors involved in the war of terror reflects a variety of corporate nationalities, this paper will focus on US corporations only, looking first at US domestic legislation as a possible accountability mechanism. After reviewing the shortcomings of domestic laws, it will then analyse the possibility of using international legal mechanisms to bring corporations to account for the killings of civilians in Nisour Square, abuses at the Abu Ghraib prison, and violations occurring pursuant to the ‘extraordinary rendition’ policy. By highlighting the shortcomings of domestic litigation and the holes in the non-binding international legal framework, this paper will draw attention to the need for

1 Louis Bayard, ‘Answering terror with terror’ (Salon, 15 July 2008) <http://www.salon.com/2008/07/15/jane_mayer/> accessed 14 April 2012.

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improved accountability mechanisms, especially as the war on terror drags on indefinitely and the use of private contractors continues unabated.

In his farewell speech to the American public on the eve of his Presidency, Dwight Eisenhower warned of the dangers of the ‘military-industrial complex’ and its ‘potential for the disastrous rise of misplaced power’.2 Today, we speak of a ‘security-industrial complex’ arising from the privatisation of the war on terror, whose evils are no less intimidating.3 The Bush administration created a ‘well-connected industrial lobby with a financial interest in extending and prolonging the war on terror,’ and it will be no small feat to dismantle this greedy self-perpetuating entity.4 If the aim of the war on terror is truly to eradicate the threat of global terrorism, an exit strategy is desperately needed in order to starve the beast. Holding complicit corporations accountable is the first step towards achieving this goal, and this paper will show that international law offers some of the basic tools by which to do so.

II. Corporate Complicity in Human Rights Violations During the War on TerrorA. Blackwater/Xe Services/Academi

On 16 September 2007, 17 Iraqi civilians were killed and 24 injured when a convoy of private contractors opened fire in Nisour Square, Baghdad. The contractors worked for a company which was then called Blackwater, now known as Academi. According the New York Times, ‘[a] deadly cascade of events began when a single bullet apparently fired by a Blackwater guard killed an Iraqi man’, who slumped onto his accelerator, causing his car to continue moving forward into the square. The convoy ‘responded with an intense barrage of gunfire in several directions, striking Iraqis who were desperately trying to flee.’5 The Iraqi medical student first shot in his car was accompanied by his mother, who was ‘shot to death as she cradled her son in her arms. Moments later the car caught fire after the Blackwater guards fired a type of grenade into the vehicle.’6 Forty bullet holes were later counted in the car. Court documents indicate that another victim was shot in the chest while standing in the street with his arms raised in surrender.7 It was also suspected that Blackwater helicopters fired on the scene from above, a claim which the company denied.8

2 Dwight D Eisenhower, ‘Military-Industrial Complex Speech’ (1961) <http://avalon.law.yale.edu/20th_century/eisenhower001.asp> accessed 14 April 2012.3 Solomon Hughes, War on Terror, Inc.: Corporate Profiteering from the Politics of Fear (London: Verso, 2007) 7.4 Ibid.5 James Glanz and Alissa J Rubin, ‘From Errand to Fatal Shot to Hail of Fire to 17 Deaths’ (New York Times, 3 October 2007) <http://www.nytimes.com/2007/10/03/world/middleeast/03firefight.html?pagewanted=all> accessed 15 April 2012.6 Ibid. 7 United States of American v. Jeremy P. Ridgeway, Guilty Plea paragraph 4 <http://www.justice.gov/opa/documents/us-v-ridgeway.pdf> accessed 15 April 20128 Glanz and Rubin, supra note 5.

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Blackwater had become a global household name several years earlier when the bodies of four of its contractors were burned, mutilated, and hung from a bridge in Fallujah.9 Despite this tragedy, Blackwater continued to maintain a significant presence in Iraq, but following the events in Nisour Square, the company was banned from operating in the country from January 2008.10

Following the events in Nisour Square, six Blackwater employees were indicted on charges of manslaughter (14 counts each), attempted manslaughter (20 counts each) and using a firearm in the commission of a violent crime (1 count each).11 One guard pleaded guilty,12 while the other five pleaded not guilty.13 The charges were later dismissed by a federal judge who stated that the prosecution had elicited incriminating statements from the Blackwater guards which were unconstitutionally compelled under threat of job loss and promise of immunity.14 Believing that the prosecution’s case was built in reliance on those compelled statements and thereby consisted of fruits of the poisonous tree, the case was dismissed.15 No other criminal charges against Blackwater have been pursued.

A civil lawsuit was brought against Blackwater by six victims of Nisour Square or their surviving family members seeking damages for wrongful death and other civil torts. This case was settled on 6 January 2012 and was the last civil suit arising from the incident, the others having been settled or ‘fallen apart’ earlier.16 A separate lawsuit was brought by the family members of the employees killed in Fallujah alleging that the company was negligent in dispatching its employees in such a dangerous situation.17 That case was also settled in January 2012.18 The amounts of the settlements remain confidential.

Although they have agreed to pay settlements, Blackwater managed to escape from the tragedies of both Nisour Square and Fallujah without a legal judgment against them, a huge win for the company. While the settlements of the victims’ claims may have brought some measure of closure, the wounds inflicted by Blackwater’s actions continue to fester.

9 BBC News, ‘Profile: Blackwater Worldwide’ (20 August 2009) < http://news.bbc.co.uk/1/hi/7000645.stm> accessed 15 April 2012.10 Ibid.11 CNN, ‘Ex-Blackwater guards charged with manslaughter’ (8 December 2008) <http://articles.cnn.com/2008-12-08/justice/iraq.blackwater.indictment_1_manslaughter-blackwater-worldwide-security-guards-dustin-heard?_s=PM:CRIME> accessed 15 April 2012.12 United States of American v. Jeremy P. Ridgeway supra note 7.13 Jaclyn Belczyk ‘Indicted Blackwater guards plead not guilty’ (Jurist, 7 January 2009) <http://jurist.org/paperchase/2009/01/indicted-blackwater-guards-plead-not.php> accessed 15 April 2012.14 Dwyer Arce, ‘Federal judge dismisses charges against indicted Blackwater guards’ (Jurist, 1 January 2010) <http://jurist.org/paperchase/2010/01/federal-judge-dismisses-charges-against.php> accessed 15 April 2012.15 Ibid.16 Doug Miller, ‘Blackwater settles Nisoor Square lawsuit’ (Charlotte Observer, 6 January 2012) <http://www.charlotteobserver.com/2012/01/06/2904465/blackwater-settles-with-families.html> accessed 15 January 2012.17 Brian Bennett, ‘Victims of an Outsourced War’ (Time Magazine, 15 March 2007) <http://www.time.com/time/magazine/article/0,9171,1599682-1,00.html> accessed 20 April 2012.18 BBC News, ‘Fallujah lawsuit: Blackwater families settle case’ (7 January 2012) <http://www.bbc.co.uk/news/world-us-canada-16453799> accessed 15 April 2012.

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‘Nisoor Square not only created a political firestorm in Iraq, the United States and around the world, but it also alienated local populations and undermined the United States’ ongoing efforts to “win hearts and minds” of those in Iraq and Afghanistan.’19 Although the US military has now withdrawn its troops from Iraq,20 operations are on-going in Afghanistan, and any void left in Iraq by the departure of the the US military is being filled by private contractors.21 Academi, as Blackwater is now called, has been awarded nearly $250 million USD in contracts with the CIA and the State Department for various services in Afghanistan.22 This bizarre reality reflects an urgent need to address corporate responsibility head-on, since the current state of the law has allowed Blackwater not only to avoid accountability for gross human rights abuses, but to be re-installed in a position in a conflict zone, where the risk of recurrence is high.

B. CACI and Titan

An earlier flash point in the war on terror occurred at Abu Ghraib prison in 2004. The horrific images of prisoner abuse are now burned in the collectively memory, having been released by the New Yorker following the completion of the official army investigation report.23 The photos reveal only a small part of the humiliation perpetrated against prisoners, which included ‘electric shocks, repeated brutal beatings, sleep and sensory deprivation, forced nudity, stress positions, sexual assault, mock executions, humiliation, hooding, isolated detention, and prolonged hanging by the limbs.’24

While the US military actors involved in the scandal were tried and convicted in courts martial for conspiracy, mistreating detainees, and committing an indecent act, and served military prison time,25 the private actors remain to be held to account. Their role in the abuses was alleged in a class action suit brought by over 250 Iraqi defendants under the Alien Tort Claims Act, which is described in more detail below in section III. Titan had been contracted to provide interpretation services, and CACI had been contracted to provide

19 Melina Millazo, ‘Contractor Accountability Four Years After Nisoor Square Incident’ (Human Rights First, 14 September 2011) <http://www.humanrightsfirst.org/2011/09/14/contractor-accountability-four-years-after-nisoor-square-incident/> accessed 15 April 2012.20 PBS Newshour, ‘Obama Marks Troop Withdrawal: US Will Be “Enduring Partner” for Iraq’ (12 December 2011) <http://www.pbs.org/newshour/bb/world/july-dec11/iraq_12-12.html> accessed 15 April 2012.21 James Deselow, ‘The US Departure from Iraq is an Illusion’ (The Guardian, 25 October 2011) <http://www.guardian.co.uk/commentisfree/cifamerica/2011/oct/25/us-departure-iraq-illusion> accessed 15 April 2012.22 Jeremy Scahill, ‘Blackwater’s New Sugar Daddy: The Obama Administration’ (The Nation, 28 June 2010) <http://www.thenation.com/blog/36756/blackwaters-new-sugar-daddy-obama-administration> accessed 20 April 2012.23 The New Yorker, ‘The Abu Ghraib Pictures’ <http://www.newyorker.com/archive/2004/05/03/slideshow_040503#slide=1> accessed 15 April 2012.24 Melina Milazzo, ‘U.S. Government Upholds Accountability for Contractors Who Torture’ (Human Rights First, 27 January 2012) <http://www.humanrightsfirst.org/2012/01/27/u-s-government-upholds-accountability-for-contractors-who-torture/> accessed 15 April 2012.25 Nina Mandell, ‘Lynndie England: Prisoners got ‘better end of the deal’ New York Daily News (20 March 2012) <http://articles.nydailynews.com/2012-03-20/news/31217178_1_lynndie-england-abu-ghraib-military-prison> accessed 15 April 2012.

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interrogation services.26 The complaint alleged that ‘Steven Stefanowicz of CACI International Inc., and Adel Nakhla and John Israel of Titan Corporation, directed and participated in illegal conduct at the Abu Ghraib prison’, namely ‘torture; cruel, inhuman, or degrading treatment; war crimes; crimes against humanity; negligent hiring and supervision; and sexual assault and battery.’27 

The suit was dismissed by the Court of Appeals for the District of Colombia on the grounds that plaintiffs’ claims for tort under state law were pre-empted by federal law. The court also stated that ‘because there is no consensus that private acts of torture violate the law of nations, such acts are not actionable under the ATS’s grant of jurisdiction’ (emphasis in original).28 The Supreme Court declined to hear the case, thereby terminating the litigation without any assignation of accountability. A criminal investigation into the actions of Titan and CACI was carried out by the Department of Justice, which found no grounds for criminal prosecution.29

Two companion cases remain in litigation at the time of writing, leaving open the possibility that CACI will be held to account. Oral argument before the Fourth Circuit Court of Appeal was heard in the cases of Al-Shimari v. CACI and Al-Quraishi v. Nakhla on 27 January 2012, with opinions expected forthwith. The former case charges CACI with conspiracy to commit torture in violation of the law of nations under the ATCA,30 while the latter case charges L-3 (the company formerly known as Titan) with the same.31 The case will test the application of the battlefield preemption theory, ‘which held that where a civilian contractor engages in combat activities under the command of the military, a tort claim arising out of the contractor’s engagement is preempted.’32 This is typical of the kinds of legal barriers to accountability that exist in the field.

The gravity of the abuses at Abu Ghraib, which could in no way be justified as legitimate even in the context of an armed conflict, meant that the US made a public effort to address these wrongs comprehensively. The Taguba report was the result of a thorough Army investigation, and the Senate and House Armed Services Committees conducted hearings on the matter. However, there is evidence that Secretary of Defense Donald Rumsfeld attempted

26 Saleh et al v. Titan et al, 580 F3d 1 (DC Cir 2009).27 Center for Constitutional Rights, ‘Saleh et al v. Titan et al’ <http://www.ccrjustice.org/ourcases/current-cases/saleh-v-titan> accessed 15 April 2012.28 Saleh et al v. Titan et al supra note 26.29 Ibid. 30 Complaint, Al-Shimari et al v. CACI, United States District Court for the Eastern District of Virginia, (15 September 2008). 31 Complaint, Al-Quraishi et al v. Nakhla et al, United States District Court, District of Maryland, Greenbelt Division, (30 June 2008),32 Melina Milazzo, ‘U.S. Government Upholds Accountability for Contractors Who Torture’ (Human Rights First, 27 January 2012) <http://www.humanrightsfirst.org/2012/01/27/u-s-government-upholds-accountability-for-contractors-who-torture/> accessed 15 April 2012.

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to downplay the results of the Army investigation and denied knowing about the abuse when he testified before the Senate and House Armed Services Committees.33

C. Jeppeson International Trip Planning

Jeppeson International Trip Planning is a subsidiary of Boeing, the largest aerospace company in the world.34 The company’s managing director gave a candid account of the firm’s activities in the war on terror: ‘We do all of the extraordinary rendition flights—you know, the torture flights. Let’s face it, some of these flights end up that way.’35 The terminology ‘extraordinary rendition’ does little to explain what actually happens during these flights. The case of Khaled El-Masri, who was released without charge after five months of incommunicado detention, sets out some of the chilling facts:

In December 2003, while on vacation in Macedonia, Mr. El-Masri was apprehended and detained by agents of the Macedonian intelligence services. While in their custody, Mr. El-Masri was harshly interrogated. His repeated requests to meet with a lawyer, family members, and a consular representative were denied. After twenty-three days of such treatment, Mr. El-Masri was handed over to the exclusive “authority and control” of agents of the U.S. Central Intelligence Agency. These agents beat, stripped, and drugged Mr. El-Masri before loading him onto a plane and flying him to a secret CIA-run prison in Afghanistan. There, Mr. El-Masri was detained incommunicado for more than four months. He was severely interrogated, inhumanely treated, and denied access to the outside world. At the end of May 2004, Mr. El-Masri was blindfolded once again, flown to Albania, and released on a hilltop in the dead of night.36

As in the above cases against Blackwater, Titan, and CACI, litigation has thus far proved unfruitful in bringing the corporate actors at Jeppeson and Boeing to account. The American Civil Liberties Union has filed two cases on behalf of victims of extraordinary rendition. The case of Mohamed et al v. Jeppesen Dataplan was denied certiorari by the Supreme Court on 16 May 2011, ending in a dismissal on the basis that its litigation would expose ‘state secrets’.37 Similarly, El-Masri v. Tenet was dismissed in October 2007, although the ACLU is now pursuing that case at the international level by petitioning the Inter-American Commission on Human Rights to find that the rendition program violates the American Declaration on the Rights and Duties of Man.38 The original case included claims

33 Seymour M Hersh, ‘The General’s Report’ (The New Yorker, 25 June 2007) <http://www.newyorker.com/reporting/2007/06/25/070625fa_fact_hersh> accessed 20 April 2012.34 Jane Mayer, ‘The C.I.A.’s Travel Agent’ (The New Yorker, 30 October 2006) <http://www.newyorker.com/archive/2006/10/30/061030ta_talk_mayer> accessed 15 April 2012.35 Ibid.36 American Civil Liberties Union, ‘Petition Alleging Violations of the Human Rights of Khaled El-Masri by the United States of America with a Request for an Investigation and Hearing on the Merits’ (9 April 2008) 2 <http://www.aclu.org/files/pdfs/safefree/elmasri_iachr_20080409.pdf> accessed 16 April 2012. 37 American Civil Liberties Union, ‘Supreme Court Denies Request to Hear Lawsuit by Victims of CIA Rendition Program’ (16 May 2011) <http://www.aclu.org/national-security/supreme-court-denies-request-hear-lawsuit-victims-cia-extraordinary-rendition-prog> accessed 16 April 2012.38 American Civil Liberties Union, ‘El-Masri v. Tenet’ (1 June 2011) <http://www.aclu.org/national-security/el-masri-v-tenet> accessed 16 April 2012.

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against corporate actors, but the petition to the Inter-American Commission alleges wrongdoing on behalf of the United States only. No government investigations into the extraordinary rendition program have occurred because it is an on-going policy of the Obama administration. Thus, for the moment Jeppeson joins the ranks of other private military and security contractors who are allowed to act with impunity as they profit from the endless war on terror.

III. Domestic Laws for Holding Private Military and Security Companies Accountable

Considering its perceived hostility to the application of international law within its border, it is somewhat remarkable that the US has federal laws explicitly tailored for addressing human rights violations. The Alien Tort Claims Act (ATCA)39 and the Torture Victims Protection Act (TVPA)40 are heralded as model human rights legislation, and yet their utility to date falls far short of the great expectations they inspire. The ATCA allows a victim of a tort to bring a cause of action for a violation of ‘the law of nations’ in a US federal court.41 Unfortunately, there is a paucity of successful human rights litigation under the ATCA, although a number of cases have settled prior to final judgment, allowing victims to recover while permitting the corporation to avoid a legal judgment of accountability. The Kiobel v. Royal Dutch Shell case currently pending re-hearing before the Supreme Court will shape the future of litigation under the ATCA when the Court rules on whether it applies to violations of the law of nations occurring extraterritorially.42 Depending on how this opinion comes down, the ATCA could be forever closed to victims of the corporate abuses listed above since the actions in each case occurred abroad.

A patchwork of other laws exist that may fill this gap. The Military Extraterritorial Jurisdiction Act (MEJA) provides for jurisdiction in federal court over crimes committed abroad by members of the armed forces or persons ‘employed by the Armed Forces outside the United States’, including civilian employees and contractors of ‘any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas.’43 The Uniform Code of Military Justice has been amended to include private military and security companies connected to the military during a ‘declared war or a contingency operation’, thereby authorising their trial by court-martial.44 Section 804 of the USAPATRIOT ACT extends federal jurisdiction to private defence contractors who commit federal crimes abroad.45 Finally, the War Crimes Act criminalises

39 Alien Tort Claims Act 28 USC § 1350 (ATCA).40 Torture Victim Protection Act, 18 USC § 2340 (TVPA).41 ‘the district court shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’ ATCA, supra note 39.42 Kiobel v Royal Dutch Shell 2012 US Transcripts 17 (28 February 2012); Kiobel v Royal Dutch Shell 642 F3d 268 (2d Cir, 2010).43 Military Extraterritorial Jurisdiction Act, 18 USC § 3267.44 Uniform Code of Military Justice, 10 USC § 47.45 USA PATRIOT Act, 18 U.S.C. § 7 (9).

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grave breaches of the Geneva Conventions at home and abroad by any US national.46 However, because it applies only to US nationals, the War Crimes Act is null in cases where abuses were committed by foreign contractors or employees, which by one account make up 65% of the contractor workforce.47

Despite this somewhat promising legal landscape, cases establishing a legal precedent for the accountability of private military and security companies are lacking. Thus, strategic litigators turn to the international legal framework to inform their advocacy and push for stronger protections against corporate war profiteering and human rights abuses. An outline of this framework and how it may apply to the above-cited cases follows below in section IV.

IV. Holding Private Military and Security Companies Accountable Using the Tools of International Law

A. Special Representative of the Secretary General on transnational corporations and other business enterprises

In April 2005, the Commission on Human Rights (since replaced by the Human Rights Council) created the Special Representative to the Secretary General (SRSG) on human rights and transnational corporations and other business enterprises. The mandate contemplated for this position was as follows:

(a) To identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights; (b) To elaborate on the role of States in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation; (c) To research and clarify the implications for transnational corporations and other business enterprises of concepts such as “complicity” and “sphere of influence”; (d) To develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises; [and] (e) To compile a compendium of best practices of States and transnational corporations and other business enterprises.48

Pursuant to this mandate, the SRSG produced abundant documentation both synthesizing the state of international law and identifying areas where development was needed, the climax of which was the Guiding Principles on Business and Human Rights.49 The Guiding Principles were drafted in order to implement the ‘Protect, Respect and Remedy’ framework earlier

46 War Crimes Act, 18 U.S.C. § 2441.47 Amnesty International, ‘Existing National Laws for Accountability and Prosecution’ <http://www.amnestyusa.org/our-work/issues/business-and-human-rights/private-military-and-security-companies/existing-national-laws-for-accountability-and-> accessed 14 April 2012.48 Commission on Human Rights, ‘Human rights and transnational corporations and other business enterprises’ UN Doc E/CN.4/2005/L.10/Add.17 (20 April 2005). 49 United Nations Office of the High Commissioner of Human Rights, ‘Guiding Principles on Business and Human Rights’ (2011) http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf accessed 20 April 2012 (Guiding Princples).

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articulated by the SRSG in a report to the Human Rights Council’s eighth session in 2008.50 In recognition of the utility of the Guiding Principles, the Human Rights Council created a Working Group on the issue of human rights and transnational corporations and other business enterprises, whose principal function is to implement them.51 As a recently created body, the Working Group has not yet released any substantive reports, but its work will constitute an important contribution to the emerging norms in this field.

Although they are not binding law, the Guiding Principles summarise well the issues that arise in the attempt to hold corporations accountable for human rights abuses, flagging up possible advocacy strategies by more clearly defining the responsibilities of both States and corporations. Because of this potential utility, the next section will parse the Guiding Principles with a view to illuminating those which best apply to the actions of Blackwater, Titan, CACI and Jeppeson International Trip Planning.

B. Guiding Principles on Business and Human Rights1. State Responsibility to Protect

The Protect, Respect and Remedy framework is a pithy way of stating what is obvious to corporate officers and international lawyers alike: because states are the traditional subjects of international law, and because corporations are ‘specialized economic organs, not democratic public interest institutions’, the responsibility to protect human rights falls squarely on the state and not on the corporation.52 This is articulated in Guiding Principle 1:

States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.53

In the commentary to Principle 1, the SRSG states that ‘States may breach their international human rights law obligations where such abuse can be attributed to them’.54 The commentary continues to say that ‘States also have the duty to protect and promote the rule of law, including by taking measures to ensure equality before the law, fairness in its application, and by providing for adequate accountability’.55 Principle 5 adds that ‘States should exercise adequate oversight in order to meet their international human rights obligations when they contract with, or legislate for, business enterprises to provide services that may impact upon the enjoyment of human rights.’56 The commentary recommends that

50 John Ruggie, ‘Protect, Respect and Remedy: a Framework for Business and Human Rights’ (2008) UN Doc A/HRC/8/5.51 Human Rights Council, ‘Human rights and transnational corporations and other business enterprises’ (2011) UN Doc A/HRC/RES/17/4.52 John Ruggie, ‘Protect, Respect and Remedy: a Framework for Business and Human Rights’ (2008) UN Doc A/HRC/8/5 para 53.53 Guiding Principle 154 Ibid. 55 Ibid. 56 Guiding Principle 5.

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the contracts specify the human rights expectations of the State for the corporation in its execution of the contract, and that ‘independent monitoring and accountability mechanisms’ provide effective oversight.

Following from Principle 1, there are several steps in the analysis as to whether the US could be found wanting in fulfilling its responsibility to protect human rights in relation to the above-cited scenarios. First, Principle 1 only extends to human rights abuse within the territory or jurisdiction of the US. Since none of the above-cited activities took place on US territory, one must determine whether the US has jurisdiction over human rights abuses committed by private actors abroad, which is not a traditional basis of extraterritorial jurisdiction. In order to address this accountability gap, the Military Extraterritorial Jurisdiction Act (MEJA) was enacted in 2000 with the purpose of ‘establish[ing] Federal jurisdiction over offenses committed outside the United States by persons employed by or accompanying the Armed Forces’.57 MEJA would thus apply to employees of Blackwater, Titan, CACI and Jeppeson, bringing the scenarios into the ambit of US jurisdiction.

The question then becomes whether the US has taken ‘appropriate steps to prevent, investigate, punish and redress’ the abuses over which it has jurisdiction. Because the Guiding Principles are not binding law, there is no authoritative interpretive body of law illuminating the types of actions that would meet this standard of ‘appropriateness’. Nonetheless, it is not difficult to imagine the US raising a vigorous defence to any challenge on this front by citing any of the following evidence: 1) ample laws exist to hold corporations accountable, such as the ATCA and TVPA; 2) lawsuits were in fact brought by the victims in each of the above-cited examples; and 3) victims in those cases that settled out of court were able to obtain redress in the form of monetary compensation. If a legal system that provides for redress in this manner is not sufficient to meet the State obligation under Principle 1, then, the argument goes, the Guiding Principles themselves must be grossly overstating the legal standard and therefore lack credibility.

To counter these assertions, an advocate for more robust corporate accountability may wish to break down the obligations under Principle 1 more granularly. First, appropriate steps to prevent the abuse were not taken. When it hired CACI in Abu Ghraib, the US government placed the authority to carry out interrogations in the hands of private contractors, a task it should have known carried a high risk of potential human rights abuse. Similarly, the act of hiring private contractors as security guards in a war zone risks confusion of international humanitarian law and puts those contractors in danger of being targetable as civilians taking active part in hostilities. The simplest way to prevent this would have been to avoid outsourcing such sensitive tasks, but even if military personnel were so lacking as to necessitate involving the private sector, the training process should have been crystal clear that killing of civilians and acts amounting to torture would be unacceptable.

Second, it may be argued that the State duty to investigate was not adequately discharged. While the appalling situation at Abu Ghraib was thoroughly investigated by the 57 MEJA.

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US Army and the results published in the Taguba report, the Senate and House Armed Forces Committee hearings were hampered by the Department of Defense’s truth-stretching. 58 Further, the investigation into the Nisour Square incident was reportedly hampered by the State Department.59 An official at the US Embassy in Iraq raised concerns about obstruction of justice in the investigation into the Blackwater guards’ criminal liability,60 casting doubt on the authenticity and appropriateness of the State’s investigation in that case. In addition, because the practice of extraordinary rendition is on-going under the Obama administration, no meaningful investigation into the human rights implications of corporate complicity in such practice has been published as of the time of writing.

Third, no punishment was ever assigned to any of the corporate actors responsible for the human rights abuses in Baghdad, Abu Ghraib, or pursuant to the extraordinary rendition policy. No corporate actor was ever found guilty or civilly liable in a court of law, which would have given rise to the possibility of penal or financial sanctions. The payment of settlement funds to would-be plaintiffs cannot be characterised as punishment because the corporation entered freely into an agreement to do so. Iraq did suspend Blackwater from operating from January 2008, but the US did quite the opposite and awarded the company more contracts for work in Afghanistan in 2010.61 Impunity is the rule, not the exception.

The fourth element of the State responsibility to protect as articulated in Principle 1 involves redress, which can take many forms, from litigation to non-judicial grievance mechanisms. These options will be discussed in more detail below. By examining only the duty to prevent, investigate, and punish, it appears there is ample evidence to argue that the United States, by contracting with Blackwater, Titan, CACI, and Jeppeson, failed to fulfil its obligation to protect against corporate human rights abuses within its jurisdiction.

2. Corporate Responsibility to Respect

Although the fundamental responsibility to protect human rights is vested in the State, corporations have a complementary responsibility to respect human rights, the content of which is constantly evolving. Principle 11 states that ‘[b]usiness enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’62 A large part of the guidance on how to fulfil this responsibility is dedicated to the practice of human rights due diligence. While human rights due diligence is an excellent concept, and hopefully one that will prove useful for both corporations and human rights advocates in future, the abuses

58 Seymour M Hersh, ‘The General’s Report’ (The New Yorker, 25 June 2007) <http://www.newyorker.com/reporting/2007/06/25/070625fa_fact_hersh> accessed 20 April 2012.59 James Risen, ‘Interference Seen in Blackwater Inquiry’ (The New York Times, 2 March 2010) <http://www.nytimes.com/2010/03/03/world/middleeast/03blackwater.html> accessed 19 April 2012.60 Ibid.61 Jeremy Scahill, ‘Blackwater’s New Sugar Daddy: The Obama Administration’ (The Nation, 28 June 2010) <http://www.thenation.com/blog/36756/blackwaters-new-sugar-daddy-obama-administration> accessed 20 April 2012.62 Guiding Principle 11.

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arising from corporate action during the war on terror do not fit nicely within the catalogue of impacts potentially brought to light by human rights due diligence. In any case, because they have already occurred, due diligence is moot.

Thus, Principle 22 states that ‘[w]here business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.’63 The methods by which this remediation may be accomplished are fleshed out further in the third prong of the framework, set out below.

3. Access to Remedy

The foundation of this premise is articulated in Principle 25, which again reiterates that the duty to provide a remedy is contingent upon the State:

As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.’64

Some of the remedies contemplated in the Guiding Principles include ‘apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions, as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition.’65 Principle 26 further articulates the State duty as follows:

States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy.66

Among these barriers is the imbalance of resources between large multinational corporations and victims. As the cost of litigation in US courts can be prohibitively expensive absent a contingency fee agreement, additional redress mechanisms must be available. Accordingly, Principle 27 states that ‘States should provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.’67 In addition to this, it is suggested that States ‘consider’ non-state sponsored non-judicial grievance mechanisms such as regional and international human rights bodies.68 One reason for this is that ‘individual criminal prosecution is ineffective for addressing widespread abuses committed by corporations.’69

63 Guiding Principle 22.64 Guiding Principle 25.65 Commentary to Guiding Principle 25.66 Guiding Principle 26.67 Guiding Principle 27.68 Commentary to Guiding Principle 28.69 Mehra, Amol, ‘Bridging Accountability Gaps – The Proliferation of Private Military and Security Companies and Ensuring Accountability for Human Rights Violations’ (Human Rights Advocates, 2009)

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C. The Special Case of Corporate Activity in Conflict Zones

The US took part in a series of workshops convened by the SRSG specifically addressing the issue of corporate respect for human rights during conflict.70 In his resultant report, the SRSG acknowledges that ‘[c]onflict situations are one of the most difficult circumstances for human rights’ and that ‘the most egregious business-related human rights abuses also take place in such environments, where the human regime [sic] cannot be expected to function as intended.’71

Principle 7 addresses the special case of businesses operating in conflict zones. Because of its direct relevance to the activities of corporate actors in the war on terror, it is replicated here in its entirety:

Because the risk of gross human rights abuses is heightened in conflict-affected areas, States should help ensure that business enterprises operating in those contexts are not involved with such abuses, including by: (a) Engaging at the earliest stage possible with business enterprises to help them identify, prevent and mitigate the human rights-related risks of their activities and business relationships; (b) Providing adequate assistance to business enterprises to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence; (c) Denying access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation; (d) Ensuring that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses.72

At first blush, it seems that the US has failed on all counts to meet the guidelines of Principle 7. As discussed above, prevention efforts in the Blackwater, Abu Ghraib and rendition contexts were insufficient, if not non-existent. Extension of a new contract to Blackwater is hardly compatible with the suggestion of denying public support for corporate human rights abusers. Current policy of heavy reliance on private military and security companies compounds the risk of business involvement in human rights abuse, contrary to addressing the risk. Principle 7 appears to be beyond the reach of US capacity.

One issue that arises in conflict situations is determining which State has the primary obligation to ensure the corporation is complying with human rights laws. Does the duty fall on the home state, where the corporation is domiciled, or the host state where the corporation is operating? Although this inquiry can prove tricky from a State point of view, for the corporation the obligation remains simple and universal. Principle 23 states that ‘[i]n all contexts, business enterprises should: (a) Comply with all applicable laws and respect internationally recognized human rights, wherever they operate’.73 The commentary to http://www.humanrightsadvocates.org/advocacy-at-the-un/ accessed 15 April 2012.70 John Ruggie, ‘Business and human rights in conflict-affected regions: challenges and options towards State responses’ (2011)UN Doc A/HRC/17/32 para 2. 71 Ibid para5.72 Guiding Principle 7.73 Guiding Principle 23.

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Principle 23 appears to give great leeway to corporations operating in conflict zones, stating that ‘[w]here the domestic context renders it impossible to meet this responsibility fully, business enterprises are expected to respect the principles of internationally recognized human rights to the greatest extent possible in the circumstances’.74

V. General Challenges to Corporate Accountability

Pursuant to the above discussion, it seems clear that the US cannot be considered to have adequately discharged its duty to protect, nor have the corporations have adequately discharged their duties to respect, nor have victims have had access to the full range of remedies. The US may point to its robust legal system, strong access to justice, and applicable human rights legislation to support the contention that it has taken ‘appropriate steps’ to protect against business-related human rights abuse, but the evidence is not in their favour. In particular, the skewed nature of the US system toward adversarial litigation exposes shortcomings in the framework for holding businesses accountable for human rights abuses.

The fact that the lawsuits against Blackwater which arose from the Fallujah and Nisour Square incidents were both settled out of court highlights a shortcoming of the American adversarial system in that it has thus far failed to create a strong precedent for accountability. As long as defendant corporations have the deep pockets to pay settlements, it will always be in their interest to do so in order to avoid risking a court judgment condemning their actions and possibly enjoining them from doing further business.

The incentives for settling are high on the victims’ side as well. Families who were plaintiffs in the lawsuits may have tired of the dilatory tactics engaged in by the firm’s corporate lawyers, who have expertise in drawing out cases until the plaintiffs have no choice but to agree to a settlement. In the Fallujah case, a federal judge was compelled to dismiss because neither the victims nor Blackwater were paying the arbitration costs.75 This illustrates the real financial hardship faced by the families, which can be addressed more immediately by a settlement rather than a long and drawn-out court battle in which the outcome remains uncertain. Victims may not feel the need to be crusaders in a high-profile legal battle, preferring to achieve closure so they can move forward with the lives that have been so tragically disrupted by corporate human rights abuse.

Other shortcomings of litigation include the problem of access to justice for persons with limited resources and/or domiciled outside the US, equality of arms in the battle against well-funded and highly experienced corporate defense attorneys, under-inclusiveness in class action litigation that requires plaintiffs to fit a specific victim profile, and, of course, time. Complex civil litigation can drag on for decades, denying victims and family members much-needed closure, but also draining them of their energy and financial resources.74 Commentary to Guiding Principle 23.75 Mike Baker, ‘Blackwater Lawsuit Dismissed 7 Years After Grisly Killings’ (Huffington Post, 25 January 2011) <http://www.huffingtonpost.com/2011/01/26/blackwater-lawsuit-dismis_n_814099.html#> accessed 15 April 2012.

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VI. Conclusion

Because the corporate responsibility to protect human rights is not a binding international legal obligation, creativity must be employed in order to isolate effective strategies to balance the financial interests of the corporation with the moral imperative of redressing victims’ harm. It is clear that bringing international attention to the heinous acts of private military and security companies does have some impact on their success and survival. Although the US government did renew its contracts with Blackwater following the Nisour Square incident, the company was later banned from further operations by Iraq. One may reasonably assume that the negative publicity arising from this series of events led the company to change its name to Xe Services, and then to Academi, allowing the tarnish on the name Blackwater to fade into the annals of history while the same company continues turning profits.

The tide does seem to be moving towards accountability rather than away from it, albeit at a somewhat glacial pace. Whereas in 2004 explicit immunity was granted to contractors in Iraq via an Iraqi law ‘drawn up by the Coalition Provisional Authority (CPA), the now-defunct interim body set up by the US-led coalition in the wake of the fall of Saddam Hussein’,76 this changed under the Status-of-Forces agreement entered into between the US and Iraq in 2008.77 In the US, the legislative proposal by Senator Patrick Leahy (D-VT) and Congressman David Price (D-NC) known as the Civilian Extraterritorial Jurisdiction Act (CEJA) would complement the existing MEJA by extending criminal jurisdiction to contractors and employees working abroad, although it remains to be passed.78 Noentheless, it indicates that the issue has entered the collective consciousness and will continue to be developed in the near future.

The scale of the situation is sufficient to promote urgency in achieving reliable State action protecting against business-related human rights abuses. Between 2003 and 2008, there were 310 different contracted companies in Iraq.79 The draw-down in Iraq has seen the departure of the US military but the proliferation of US private military and security companies. In the fledgling stages of its latest democratic experiment, Iraq cannot be expected to have a robust criminal and human rights enforcement system in place, meaning that private contractors operate at a high risk of running afoul of international law.

It has been said that the events of Nisour Square exposed a glaring weakness in US foreign policy, namely that ‘[t]he United States was relying on private contractors in war zones at an unprecedented level in size and scope, but did not have a commensurate policy

76 BBC News, ‘Profile: Blackwater Worldwide’ (20 August 2009) < http://news.bbc.co.uk/1/hi/7000645.stm> accessed 15 April 2012.77 Dwyer Arce, ‘Federal judge dismisses charges against indicted Blackwater guards’ (Jurist, 1 January 2010) <http://jurist.org/paperchase/2010/01/federal-judge-dismisses-charges-against.php> accessed 15 April 2012.78 David Isenberg, ‘Contractors and the Civilian Extraterritorial Jurisdiction Act’ (Huffington Post, 2 February 2010) <http://www.huffingtonpost.com/david-isenberg/contractors-and-the-civil_b_446298.html> accessed 15 April 2012.79 James Glanz, ‘Report on Iraq Security Lists 310 Contractors’ (New York Times, 28 October 2008).

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for effectively overseeing them and holding them accountable for serious violent crimes.’80 It appears that five years later the US is no better equipped to address this problem. The international community must continue to focus its attention on addressing impunity amongst private military and security companies through application of the Guiding Principles and other legal norms. With persistent advocacy, the accountability gaps can one day be closed for good.

80 Melina Millazo, ‘Contractor Accountability Four Years After Nisoor Square Incident’ (Human Rights First, 14 September 2011) <http://www.humanrightsfirst.org/2011/09/14/contractor-accountability-four-years-after-nisoor-square-incident/> accessed 15 April 2012.

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