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They're Getting Away with Murder: How the International Criminal Court Can Prosecute U.S. Private Security Contractors for the Nisour Square Tragedy and Why It Should

Publication Title

Washington University Global Studies Law Review

Abstract

This Note analyzes how the ICC could exert jurisdiction over the events of Nisour Square. Part I provides a background on the Nisour Square Tragedy. Part II explains how to get the Nisour Square tragedy under ICC jurisdiction. First, Iraq could accept the jurisdiction of the ICC and then submit the Nisour Square tragedy for prosecution pursuant to the terms of the Rome Statute. Then, this Note considers subject matter jurisdiction and addresses mistakes in the U.S. prosecution, and how those mistakes cast doubt on the willingness of U.S. prosecutors to prosecute contractors such as Blackwater. While this doubt is not proof of unwillingness, this Note argues that it does satisfy the jurisdictional triggers of the ICC when coupled with worldwide reaction to contractor abuses in Iraq. Part II also discusses legislative efforts by the United States to close jurisdictional gaps for the extraterritorial applicability of U.S. law to contractors working for agencies in Iraq other than the Department of Defense. Part III argues that, unlike other cases where the ICC has prosecuted individuals for crimes against humanity or war crimes, prosecuting Blackwater individuals for war crimes in connection with Nisour Square does not threaten to destabilize or derail any peace or peace process in the region. Part III also addresses the policy behind holding private-security contractors individually criminally responsible and argues that it is in the interest of the international community to adjudicate war crimes committed by private security contractors in Iraq on an international level rather than a national level.

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