Thursday - October 11, 2007
Blackwater and Blackletter Law
Okay, there's no blackletter law here, but I like
the title anyway.
Blackwater, the
"private security" company that operates in places like Iraq and Afghanistan
under contract to provide security to various parties is under fire for its
behavior in Iraq.
I'm not a fan of
mercenaries, which is what they are. A lot of Marines I work with have joined
up with Blackwater and other outfits and get paid quite well for it, and I'm
happy for them. However, using mercenaries has historically been a problematic
solution to military requirements.
If Blackwater were simply a security company,
there would be few issues except that they have a lot of money. Anyone with a
lot of money is going to have people coming after it through whatever legal
means they can find. In this case, they killed some Iraqis, and for purposes of
this rant I'll assume that the killings were inappropriate or at the very least
mistaken.
In common law, a party is
liable for damages for any wrong committed. The trick is deciding when a wrong
is committed. Is the standard for the military appropriate for a private
security company? Should private security companies have the same procedures as
the military?
I should hope to god
not.
Who are the individuals in this
mercenary outfit? Some are American military reservists or former American
military, and some are from whatever nation. The mercenary armies should comply
with the laws of the nation they are operating
in.
The problem comes when the nation
they are operating in is hostile to the interest they are employed by. That is,
if they are protecting Americans while at war with the Iraqi government, it's
not kosher to say that they should comply with Iraqi law.
The Iraqi government is no longer
hostile (at least on paper) to the US or others employing them. At some point
in time, the special treatment secured by these mercenaries by the US government
has become inappropriate. They should be subject to Iraqi
law.
That's the easiest solution to the
problem. But they are still exempt from Iraqi law. So the convoluted question
is what laws are they subject to? It would be somewhat easier if the employees
were Americans, then we could arbitrarily apply American law. But some are
South African or whatever else. Usually terms of employment would name a
jurisdiction, but in criminal law that might not be acceptable to the Iraqi or
American jurisdiction.
All of this is
fascinating and over my head as a second year law student, so I'll end that
analysis for now.
An interesting point
to me is to determine what the damages would be.
When an American military member kills
an innocent Iraqi in a non-criminal action, we typically make a
salatia
payment. If I recall, the cost of killing someone was about $2000. Yes, we
only pay about $2000 in most cases if we kill someone that didn't deserve to be
killed.
No American would ever accept
that for a punch in the nose, let alone a wrongful
death.
Blackwater is being sued as a
company in an American court. I kind of like that. This is not a criminal
case, it's a civil case and the Iraqis have every right to bring it in an
American court against an American company, or a company with significant
contacts with the United States.
What
is a New York court, with New Yorkers on the jury likely to award as damages,
let alone punitive damages? I'll say a hell of a lot more than
$2000.
Blackwater makes a lot of money
at their business and they should be held accountable for any wrongs they
commit. And this is why they should not be held to the standards of the US
military. They are a for-profit outfit and should not be encouraged to profit
while wrongfully killing people.
This
is what the civil courts are for. The liability of causing a wrongful death
will encourage these mercenaries to use appropriate caution when using force.
They will have to explain their every decision and policy and justify any lack
of means that could have prevented this death. The US military does not need to
submit to this scrutiny because it is a government entity and its purpose is to
use force to project its will on others. Because of the risk to national
security, they need not have very high standards for safeguarding innocents
except as they deem is useful to their own
purposes.
Blackwater has no such
mandate, and they additionally have a profit motive. If they make millions of
dollars from using force, then it is reasonable to expect them to use means that
can prevent deaths or other torts to the degree that it does not put them out of
business completely so long as they perform a function that is socially
desirable. This is a basic tenet of tort law.
That is, if an electric company can
spend $10 and prevent powerlines from falling on people, causing thousands of
dollars in damages, then to not spend that $10 would be negligent. If it takes
$1000 to prevent $10 of damage, then it makes more sense to risk the $10 damage,
taking into account the probability of it occuring as
well.
For example, if Blackwater could
have prevented this death by providing another ten vehicles to clear ahead of
the people they were protecting, and this was a small cost compared to the
liability of killing someone wrongfully, then to not provide those ten more
vehicles would have been negligent.
I
think taking this case to American courts is a brilliant move. Personally, I
don't give two hoots about the Iraqis and the millions of dollars they're likely
to be awarded, but I want their nation to get on its feet. If private
mercenaries are forced to spend more of their profits to do a better job,
everyone makes out.
The risk, of
course, is if Blackwater determines that it can't afford the liability and
leaves the country. If this is good or bad, I can't say. I'd like to think
that Iraqi companies can pick up the slack, but I wonder at the ability of
Iraqis doing so without inciting sectarian
suspicions.
There are no easy answers.
I like anything that helps promote the rule of law and increases the value of
human life.
Go Back to the Start, Do Not Collect $200 Send me your two cents
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