NCJ Number
217019
Journal
Case Western Reserve Journal of International Law Volume: 37 Issue: 2 & 3 Dated: 2006 Pages: 267-275
Date Published
2006
Length
9 pages
Annotation
Using the Abu Ghraib prison abuse scandal as a case study, this article examines whether the outsourcing of torture to private contractors reduces legal accountability.
Abstract
The main argument is that the use of private contractors may not present as much of an impediment to legal accountability as has been assumed. The author illustrates the ways in which legal accountability mechanisms can be contractually mandated as well as the ways in which the institutional cultures of private contractors can be changed to increase compliance with international laws. The abuses that took place at Abu Ghraib are now well known. Private contractors working under contract with the Department of the Interior participated in the abuses along side of uniformed military personnel. The author argues that historically, even state actors are rarely held accountable under international law for violations of international norms, such as prohibitions on torture. Despite the weak enforcement mechanisms underlying international law, scholars have proposed expansion of international law norms to apply to each new group of private contractor that appears on the international scene. This type of solution is considered inadequate, however, due to the limitations of the international tribunals. Instead, the author proposes that a number of contractual mechanisms can be used to ensure private contractors follow international laws and norms: (1) contracts should explicitly require contractors to obey international human rights and humanitarian law; (2) contracts should explicitly require contractors to have training in international human rights and humanitarian law; (3) provisions should be made for increased monitoring of contracts, both by government officials and outside organizations; (4) contracts should include concrete performance benchmarks; (5) contracts should require self-evaluation to enhance accountability; (6) contracts should include terms allowing the government to take over or terminate contracts for failure to observe humanitarian laws and human rights; and (7) contracts should provide enhanced whistleblower protections. Suggestions are also provided for ways to enhance internal institutional accountability through, for example, professional standardization and accreditation. Footnotes