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Are Overseas Security Contractors Immune From Criminal Prosecution?

By Edited Jul 4, 2014 0 0

Look guys, we all know that working security in a war zone can be a fast-paced job.  Armored-up SUVs race down Route Irish with guns pointed out each window, their sole objective being to bring the principal safely from the International Zone to Victory Base Complex.  I’ve made that run a couple of times (in the back seat I mean, with no rounds chambered) and nothing’s ever happened, but there was always that chance that something would.  Let’s face it, when it comes to those “uh-oh” moments, it’s not a matter of “If” something will happen.   It’s a matter of “When”.

                That’s why I always say that you can’t get enough training.  The stuff you learn could save a life someday, so please pay attention when you go through your classes.  But here’s the thing:  No matter how good you are, you’re never going to be 100% perfect in those stressful situations.  No matter how good of a wheelman you’ve got, there’s always that chance that he’ll strike an innocent pedestrian while making that quick exit.  And no matter how good a shot you are, you’ve got no control over that bullet’s direction once it ricochets down the street. 

                When it comes to innocent civilians getting killed by legitimate Use of Force actions, it’s not a matter of “If” it will happen.  It’s a matter of “When”.  These are the times when it must be nice to be in the military.  See, the Armed Forces have this neat little term called “Collateral Damage”, which is basically a way of saying, “Oh, well, there’s a war going on here.  Stuff happens, nothing to lose sleep over.”  They usually pay out some blood money to smooth things over too.  But here’s one of the most important things you need to know about working as an overseas security contractor:  You’re not in the military!

                Oh sure, back during the days of the Coalition Provisional Authority, security contractors in Iraq were given immunity from criminal prosecution during their operations.  But I’m not here to give you the complete timeline of how all that changed, I just want you to understand that it ain’t that way anymore.  The exact post-incident procedures will vary according to both your company’s policies and your contract’s requirements, but at the least, every Use of Force incident will get a thorough after-action investigation.  If you’ve never been through a critical incident before, let me tell you from experience that it can be a real stressful situation.  It seems like people are constantly second-guessing your actions, even if you’ve done everything right! 

                But the time to be thinking about these contingencies is now, before you even accept your first job offer.  See, when the US military (and this includes armed contractors working under DOD/DOS contracts) operates in another allied sovereign nation, they’re subject to what’s called a SOFA, a Status Of Forces Agreement.  Basically, a SOFA says what the troops can and can’t do while they’re in country, and what rules of engagement they’ll follow.  A good example of this was back in 1991, during Operation Desert Shield, when Saudi Arabia forbid the US Army females from going off-base without being fully covered as required by local law. 

                I know what you’re going to ask next.  Yes, the United States recognizes both Iraq and Afghanistan as sovereign nations!  (Stop laughing.)  So at the bare minimum, you need to be aware that there is at least the POSSIBILITY that you could wind up facing criminal charges from actions taken in the performance of your duties.  This usually happens in one of two ways:

1- From the local laws of your host nation.  I can cite at least two examples where security contractors in Afghanistan have been the subject of criminal investigations, one as a result of a shooting and the other following a traffic accident.  Although both were cleared, the shooter was accused of murder and spent a length of time in an Afghan prison before his eventual release.  And don’t get any ideas about “going native” and trying to bribe your way past a local cop, either!  That might work to get you a better seat on your flights home, but it could be just the excuse a cop needs to lock you up.  I’m not trying to give out any Legal Aid advice here, but your best course of action is probably going to be to make it back to your HQ, then let your company reps work it out with the State Department folks.

                2-  Under the Uniform Code of Military Justice.  Think twice before flipping off that jerk of a lieutenant who won’t let you take more than two steam trays out of the DFAC, he could have you arrested for insubordination!  That’s right, civilian contractors are also subject to the UCMJ, just like active-duty soldiers.  Of course, if you really do urinate in somebody’s Cheerios it’s much simpler for the military to order your removal from the theater, effectively getting you fired or laid off.  More than likely you’ll only see attempts at UCMJ prosecution is if it’s a serious or headline-worthy case, such as sexual assault or a questionable shooting.

                You might go your entire career without getting involved in a situation like this.  In fact, I hope you do!  But there’s also a lot of little things that can get you hemmed up in legal trouble as well.  For example, when the stuff hits the fan, you figure that everyone’s going to be snatching up a gun, right?  But what if you were hired on for an unarmed escort position and you were never issued a weapons card?  Technically, you’ve just broken local law!  Oh, and, you did check to make sure that your company has all of its local operating licenses and arming permits, right?  Assume that you will be asked to show these as some point.  At least one company has had its main compound in Afghanistan “raided” by the local police for just these types of violations!

                Security work is scary enough, so I swear I’m not trying to add to your stress!  My goal is always to make sure you’re informed, so that you can form a plan to deal with these eventualities.  At the minimum, you might want to keep the contact information for a good lawyer handy, preferably an ex-JAG guy.  Yes, your company has lots of lawyers on staff, but their job is to protect the company only.  This normally happens by throwing you under the bus as soon as possible.

                But just like anything else, lawyers (and last minute flights out of third-world countries) aren’t free.  Do yourself a favor and keep as much money as you can stashed away in a rainy-day fund. Hopefully you’ll never have to touch it, but at least it’ll be there if you need it.  Remember, you’ll never be able to eliminate all of the risks that you face, but you can always work towards managing them.




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