On Oct. 21, the federal District Court for the Eastern District of Virginia affirmed, in the well-known Blackwater/Xe case, that the murder of civilians in connection with an armed conflict overseas is actionable in a US court under the controversial Alien Tort Claims Act of 1789. The court relied on the universal acceptance, everywhere in the world, of Common Article 3 to the Geneva Conventions, which prohibits the murder of civilians in an armed conflict.
The court found that the Geneva Conventions’ norms are universal, specific and obligatory—on governments as well as on private actors. Unlike governments, though, private citizens and corporations can be sued.
The Xe decision is an encouraging development in a very tough area of law. In the last two months, efforts to hold Coca-Cola, Shell, Exxon, and the Talisman Energy Corp liable for their participation in war crimes have been frustrated, for a variety of reasons particular to each case.
The case differs from the others in that the owner of Blackwater/Xe, Erik Prince, is being sued personally and accused of personal involvement in murders in Iraq. The judge found that the complaints lacked sufficient detail to hold Prince liable, and dismissed them without prejudice. This means that the plaintiffs can refile their claims with the additional details.
The judge has set a high standard, however. For each murder, the plantiffs must prove “that defendant Prince (i) intentionally (ii) killed or inflicted serious bodily harm (iii) on innocent civilians (iv) during an armed conflict and (v) in the context of and in association with that armed conflict.”
At first glance, this would seem to imply that the plaintiffs must prove that incidents like the notorious Nisur Square shooting were premeditated by Prince, who is not even a defendant in the separate criminal case against Blackwater/Xe. Nevertheless, we should reserve judgement, since we do not know what evidence the plaintiffs may have tying Prince to the Nisur Square incident, or to others.
The 56-page decision touches on many other aspects of the Alien Tort Claims Act, as well. As district court decision, it is not a binding precedent for other cases. But it remains a legal victory because it affirms the principle that private military contractors can be held liable for killing civilians. Whether Prince himself is liable remains to be seen.
Paul Wolf for World War 4 Report