Public Contract Law Journal

Ensuring No Safe Haven for Government Contractors Committing Human Rights Violations Overseas

by Sophia Herbst

Sophia Herbst (sherbst@law.gwu.edu) is a J.D. candidate at The George Washington University Law School and is a Notes Editor for The Public Contract Law Journal. She wishes to thank Alejandra Irizarry for her insight and invaluable assistance during the Note writing process.

I. Introduction

On September 16, 2007, a group of security guards opened fire on a crowd in Nisour Square in Baghdad.1 The guards killed seventeen civilians.2 Blackwater USA — a private security firm under contract with the U.S. Department of State (DoS) to provide security for U.S. diplomats in Iraq — employed the guards at the time.3 This incident triggered controversy regarding which laws should apply to Blackwater’s employees for their actions.4 It was determined that private security contractors working overseas do not operate in a legal void — they are subject to both regulations and legal enforcement under the international and domestic laws of the countries in which they are stationed.5 Remarkably, had Blackwater been a commercial corporation rather than a private security firm, the issue of liability would have yet to be determined.6 The United States has made efforts to establish regulations and guidelines for overseas military and private security contractors, but the same cannot be said for corporations contracted to work overseas.7

For years, foreign nationals have attempted to find relief in the U.S. legal system for wrongs committed against them by employees of U.S. government contractors.8 Unfortunately, once they reach the courts, foreign nationals face insurmountable jurisdictional barriers barring them from finding relief. The current jurisdictional oversight has two consequences: (1) contractors do not face penalties in contracting or in court after committing acts recognized by both the United States and the international community as violations of international norms and principles; and (2) it demonstrates to foreign countries that U.S. contractors coming to perform work in their country may lack any form of deterrent ensuring they respect the laws and rights of the foreign country’s citizens.

The U.S. government’s spending power and habits with respect to contractor hiring decisions have a great impact on people around the globe.9 For this reason, it would be prudent for the United States to ensure that its over $350 billion annual procurement spending budget goes towards protecting human rights around the world rather than to companies with a history of abuse allegations.10 This Note suggests the implementation of regulations and penalties governing corporate government contractors’ actions overseas to rectify the disparity in oversight and liability. Part II addresses past case precedents and the lack of legislative regulation that has resulted in current disparities in liability. Part III focuses on four prior examples where the U.S. government held citizens, corporations, and contractors liable for their actions domestically and overseas — indicating an established practice of standardized liability. Finally, Part IV suggests that the United States enact regulations making clear to contractors and foreign countries that the contractors will be held liable for human rights abuses and may face additional contracting penalties.

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