Contractor Immunity A Divisive Issue

WaPo – Contractor Immunity A Divisive Issue

In an early test of its imminent sovereignty, Iraq’s new government has been resisting a U.S. demand that thousands of foreign contractors here be granted immunity from Iraqi law, in the same way as U.S. military forces are now immune, according to Iraqi sources.

The U.S. proposal, although not widely known, has touched a nerve with some nationalist-minded Iraqis already chafing under the 14-month-old U.S.-led occupation. If accepted by Prime Minister Ayad Allawi, it would put the highly visible U.S. foreign contractors into a special legal category, not subject to military justice and beyond the reach of Iraq’s justice system.

The U.S. request, confirmed Sunday by Allawi’s office, is one of a number of delicate issues revolving around government authority that will confront the incoming U.S. ambassador, John D. Negroponte, when Allawi’s interim government assumes formal sovereignty June 30.

Although the Bush administration repeatedly has promised that Iraqis will receive authentic sovereignty, the U.S. military has made it clear that U.S. officers will remain in charge of security, the country’s top concern. People here widely assume that U.S. influence will remain decisive for a long time in almost every domain.

The in-control status of U.S. troops and officials — from Humvee drivers who demand priority in traffic to civilian administrators intervening in the choice of Iraqi leaders — often has been cited by Iraqis who oppose the occupation on nationalist grounds. The civilian contractors, particularly armed security personnel, have generated similar resentment from Iraqis, many of whom long ago tired of having foreigners tell them where they can and cannot go.

The question of the contractors’ status also has arisen because of two U.S. contract employees at Abu Ghraib prison who were accused in a Pentagon report of participating in illegal abuse of Iraqi prisoners. The two — Steven Stephanowicz of CACI International, an Arlington-based defense firm, and John B. Israel of the Titan Corp. of San Diego — have not been charged with any crimes in Iraq or the United States, although some of their Army colleagues face military tribunals.

Granting mercenaries immunity from Iraqi law would be rather absurd, especially if they’re not subject to U.S. military justice system. I don’t buy the conduct of these “contractors” as a serious cause of the insurgent-terrorist coalition in Iraq but, clearly, Iraqi sovereingty needs to be as real as possible for the transition to have any chance of success. Coalition soldiers can be covered under a Status of Forces Agreement–that’s customary even in places like Germany and Japan–and diplomatic personnel are already given a high degree of immunity under international law. Mercenaries are neither soldiers nor diplomats, however, and should be accorded the same legal status as any foreign national working in an Iraqi firm.

The use of mercenaries for security work has obviously been a failed experiment. Not only do they seem to operate outside of the normal protocols of our professional military, but they have to be an irritant to potentially friendly Iraqi citizens. It’s one thing to take orders from uniformed soldiers from the military that toppled Saddam Hussein and liberated the country; it’s another to be pushed around by foreign security guards. There’s no reason we can’t hire that work out to Iraqis. Indeed, we should have done that with most of the work now being done by US contractors.

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James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Boyd says:

    While I agree with your points that civilian contractors should be subject to some law (most likely Iraqi), and that their use should be limited in favor of using Iraqis, especially in security work, I must object to your repeated use of the word “mercenary,” James.

    It’s an interesting debate to discuss whether the security contractors meet the definition of mercenary, but in my mind, the many other contractors clearly do not match up with that description. Applying such a pejorative term to such a sweeping class of people in Iraq is inaccurate and unfair.

  2. My understanding is that civilians who work for DOD (in various capacities) in other countries are covered by SOFAs to some extent but nonetheless can still be criminally prosecuted by the host country. Otherwise, what do you do with the spouse of a soldier who kills his/her spouse on the base/post?

    Besides, I find it Hard To Believe (TM) that DOJ couldn’t find something to prosecute Stephanowicz and Israel for; we managed to prosecute and convict Manuel Noriega, who never committed a crime on U.S. soil, so throwing the book at these two chumps can’t be that hard.

  3. James Joyner says:


    Sure. But one would think Haliburton employees and others over there doing work on the infrastructure and whatnot would be treated like any other civilians working in, say, the Iraqi oil industry. The only real problem area I see are those carrying around weapons and engaging in quasi-combat ops who aren’t soldiers.