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Blackwater in Iraq

October 26, 2010

Newly leaked documents alleging the involvement of US private security firm Blackwater in the unlawful killing of Iraqi civilians are unlikely to lead to prosecutions, say experts, as current trials continue to collapse.

A US private security officer
Attempts to prosecute military contractors are proving futileImage: AP

With more than 400,000 classified US army documents going online in the latest mass release of files by the WikiLeaks website, the world has been given further disturbing insight into the war in Iraq. The leak, which followed a similar release of 70,000 secret files on the war in Afghanistan in July, revealed in horrifying detail the civilian cost of the bloody conflict with details of abuse and murder by Iraqi security forces and other groups.

Among the latest leaked documents are accounts of hitherto undisclosed killings attributed to operatives of the US private security company Blackwater, now known as Xe Services.

The controversial company, which has garnered a shady reputation for allegedly unregulated, mercenary activities as a US military contractor in Iraq, is cited in 14 files which document incidents in which Blackwater guards opened fire on civilians, killing 10 in total and wounding seven.

The WikiLeaks documents claim that in one-third of the cases where civilians were unlawfully killed, the Blackwater operatives were protecting US diplomats as part of a $465-million (331-million euros) State Department contract when they opened fire. The files allege that Blackwater operatives repeatedly shot at civilian vehicles that came close to their convoys, and on one occasion even shot dead an ambulance driver as his vehicle sped toward the scene of a bomb attack.

A woman and a child inspect a car splatterd with blood
Blackwater guards have been implicated in civilian deathsImage: AP

Blackwater rose to notoriety with the 2007 shooting in Baghdad's Nisour Square which left 17 civilians dead and 18 wounded. After the Nisour massacre, the Iraqi Government demanded Blackwater leave the country.

Five Blackwater guards involved in the Nisour shooting were charged with murder back in the US, although a judge dismissed the case for prosecutorial misconduct in January this year. The manslaughter and weapons charges were also dropped.

After leaving Iraq, Blackwater changed its named to Xe Services in February 2009, saying the rebranding reflected "the change in company focus away from the business of providing private security."

However, the Central Intelligence Agency and State Department have continued to award the company with contracts to protect their installations and personnel and Xe now provides the majority of the 26,000 private security workers used by the US in Afghanistan. The company earned more than $1.5 billion from US government contracts in Iraq after deploying in the wake of the 2003 invasion.

New revelations, old problems

Blackwater founder Erik Prince testifies on Capitol Hill in Washington
Blackwater founder Erik Prince has seen many cases collapseImage: AP

After reviewing the new revelations from WikiLeaks, the Iraqi government has said that it will investigate whether Blackwater was involved in the civilian deaths detailed in the recently leaked documents.

However, legal and security experts have grave doubts that any investigation based on the latest WikiLeaks reports alleging Blackwater involvement in civilian deaths will lead to prosecutions. Given the state of play regarding previous cases, analysts believe Blackwater has nothing to fear from the new revelations.

"First off, the publication of classified data is illegal," Dr. Paul Sullivan, professor of Security Studies at Georgetown University in Washington, told Deutsche Welle in reference to the evidence provided by WikiLeaks. "Also, the use of classified data obtained illegally through a chain of illegal actions leaves some complex questions for any judge. In the US, a judge will decide what is admissible evidence and what is not. This is far from a clear issue in the courts in the US."

Cases collapsing under weight of legal complications

Cases arising from previous actions involving Blackwater guards in Iraq have been mired in complications arising from investigating incidents in combat zones which, in turn, have led to a number of cases collapsing.

Plainclothes contractors working for Blackwater USA
Often under fire, Blackwater guards claim self-defenseImage: AP

Last week, Andrew J. Moonen, a Blackwater employee accused of killing Rhaeem Khalif Saadoun, the bodyguard of an Iraqi vice president in 2006, saw all the charges brought against him dropped after a four-year investigation.

The US Attorney's Office in Seattle said that no indictment would be brought against Moonen and stated that while there was "no question that the shooting ... was a tragic event," lack of solid evidence convinced the government that it could not build a case. Moonen claimed that he had shot Saadoun in self-defense after being confronted by the bodyguard.

The collapse of Moonen's case follows the failure in September to convict two former Blackwater guards accused of killing two Afghan civilians. A hung jury in the Virginia murder trial led to the two Blackwater employees being released after the guards said that they shot in self-defense when they believed they were facing an attack from insurgents, a claim also used by the five Blackwater guards cleared in the Nisour Square case.

Continue reading for more on Blackwater's operations

Conflict zone investigations plagued by obstacles

Prosecutors are experiencing huge legal challenges relating to insufficient and contaminated evidence obtained from war zones, problems regarding proper jurisdiction, and of overcoming immunity deals given to defendants by US officials at the scene of the crime.

Iraqis inspect the scene of a bomb attack in Baghdad
The maelstrom of violence left Iraq a chaotic crime sceneImage: AP

"One challenge for prosecutors is getting hold of usable evidence," Dex Torricke-Barton, an international security analyst and consultant at the United Nations, told Deutsche Welle. "Iraq experienced a maelstrom of violence over the last few years, and identifying evidence for specific incidents can be very difficult."

"Neither Blackwater nor the United States government have a keen interest in airing dirty laundry in what has been an unpopular war, so preserving evidence and building a case for potential prosecution later on was never a high priority," Morris Davis, executive director and counsel for the Crimes of War Project in Washington, told Deutsche Welle.

Jurisdiction, immunity undermining Blackwater investigations

As well as the problems arising from obtaining solid and credible evidence from chaotic war zones, the Blackwater cases also suffer from falling into a murky grey area when it comes to jurisdiction and law.

US State Department seal
Blackwater was contracted to the State Department in IraqImage: AP GraphicsBank

While contractors working for the Defense Department overseas are subject to criminal prosecution under the Military Extraterritorial Jurisdiction Act - a situation which has seen a number of operatives from other firms prosecuted for sexual assault and other violent crimes in Iraq - Blackwater was under contract from the State Department. There has yet to be any clarification that State Department contractors fall under the same laws that govern Defense Department contractors.

Blackwater operatives are also often given immunity in exchange for information regarding cases they are involved in. Andrew Moonen was granted immunity by a US embassy official in Baghdad after the shooting of Rhaeem Khalif Saadoun as were the Blackwater guards involved in the Nisour Square massacre. The immunity sanction has proved incredibly hard for US courts to overturn.

The matter is further complicated by the fact that foreign contractors had immunity from prosecution under Iraqi law until that was revoked in 2009, meaning Blackwater guards serving in Iraq until last year were operating in a legal vacuum.

"The real issue is establishing the legal jurisdiction for prosecutions," said Torricke-Barton. "There is a messy regulatory framework governing the legal status of US contractors, and in the case of Blackwater, immunity deals were granted to some personnel by local US officials before the implications for future proceedings could be understood. Most cases against Blackwater employees haven't gone to trial yet, and I would be surprised if they ever did as a result of these issues."

Calls for responsibility and regulation

Blackwater operatives
Contractors could face strict international rules in futureImage: Robert Young Pelton, 2010 All Rights Reserved

With contractors from other nations still operating in Iraq and former Blackwater operatives still serving under the Xe banner in Afghanistan, many analysts are calling for nations and companies to take responsibility for their actions and for international regulations to prevent abuses happening again.

"I believe that the Iraq war and the hiring of these individuals who were not cleared through proper measures should make the parties - Blackwater and State and Defense departments - responsible because they did not do their own homework," Patricia DeGennaro, professor at New York University's Department of Politics and a Senior Fellow at the World Policy Institute in New York, told Deutsche Welle.

"They should through their own conscience and civil decency be required to change those policies, provide reparations and apologies to these individuals, their families and Iraqis as well."

"There is a growing movement at the United Nations to install a new global regulatory framework to govern how private security forces operate in warzones," said Torricke-Barton.

"In this case, states would have a duty under international law to develop the necessary procedures for investigating and prosecuting the actions of contractors. The US traditionally has not reacted well to such proposals but if the furore over Blackwater continues, it may be difficult for American diplomats to say no in the end."

Author: Nick Amies

Editor: Rob Mudge