Out of sight, out of mind, out of reach?

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16 IHL Magazine Australian Red Cross
Conict is serious business – in the economic sense of the
word. Apart from spending billions of dollars every year on
military hardware, governments around the world have for
several decades relied heavily on the services of private
military and security contractors. In conict zones or areas
of instability, contractors can do all kinds of things, from
operang chow halls, to maintaining military equipment,
to providing armed security.
The overseas contractors of the Australian Defence Force
(ADF) have so far mainly provided logiscal and technical
support. But, at the me of wring, armed private
contractors are responsible for the safety of Australian
diplomats in Baghdad and Kabul, and contractor personnel
operate immigraon detenon facilies on Manus Island
and Nauru.
Any government contracng raises quesons about
Out of sight, out of mind,
out of reach?
Rain Liivoja, Senior Lecturer and Society in Science - Branco Weiss
Fellow at Melbourne Law School, University of Melbourne
Plainclothes contractors working for
Blackwater USA take part in a reght,
Photo: AP Photo/Gervasio Sanchez
ensuring transparency and obtaining value for money.
The use of armed security contractors, however, creates
concerns in light of the risk that those contractors can pose
to the public. In this respect, an incident in 2006, where
armed guards from a US company called Blackwater shot
and killed 17 civilians in central Baghdad in broad daylight,
has been emblemac. The drawn-out struggle of the US
authories to bring the perpetrators to jusce – four of
the guards were sentenced to lengthy prison terms only
last year – has also highlighted dicules faced by law
enforcement authories in dealing with the conduct of
contractors overseas.
Much of the contractor misconduct has been due to literal
lawlessness. In parcular, the applicaon of US law to
government contractors overseas has been uncertain,
which is one of the issues that the convicted Blackwater
guards have now raised on appeal.

IHL Magazine 17 Australian Red Cross
First, as the Aorney-General explained in Parliament in
2003, the original purpose of the Act was to ensure that
Australian civilian personnel deployed overseas could be
prosecuted before Australian courts rather than in local
criminal jusce systems that may ‘fall short of Australian
standards’. To put this in less generous terms, the Act
was not meant to protect vulnerable populaons from
the criminal misconduct of Australians, but rather to
protect Australians from brush foreign law. This atude
may have shied somewhat in 2012 when the Aorney-
General acknowledged that making Nauru a designated
country ensured that individuals were ‘not shielded from
criminal sancons’ for acts commied there.
The second reason for the limited reach of the Act may
be the uncertainty as to whether Australia could, as
a maer of internaonal law, apply its criminal law to
overseas acts where the only connecon to Australia is
that the perpetrator was in some contractual relaonship
with the Commonwealth government. State pracce in
this respect is limited but nonetheless suggests there
would be no inconsistency with internaonal law. For
example, the Defence Force Discipline Act, like the military
disciplinary codes of many other countries, applies to
service members and Defence civilians quite irrespecve
of their cizenship. Also, the much-discussed US Military
Extraterritorial Jurisdicon Act 2000, which makes
parcular non-cizen Pentagon contractors subject to US
federal criminal law, has not been met with any palpable
internaonal opposion.
From a global governance perspecve, Australia may in
fact be seen as neglecng its responsibilies by leaving,
say, Nauru to sort out any mess caused by contractors
whose only reason for being in the country is a contract
with the Australian Government.
Despite this jurisdiconal gap, the Australian legislaon
applicable to government contractors overseas may be
regarded as fairly extensive. It is much less clear, however,
how well it would work in pracce. The Defence Force
Discipline Act is perhaps the strongest card in the deck.
Even though contractors have so far not been prosecuted
under this Act, the ADF certainly has a deployable policing
and invesgave capacity that has allowed Australian
military tribunals to deal eecvely with overseas oences
of uniformed personnel. The Crimes Overseas Act, in
contrast, has never been used, and Australia’s track record
of prosecung war criminals who have found their way
here has been less than stellar.
So, how does Australian law fare?
First of all, certain provisions of the Commonwealth
Criminal Code – including those dealing with genocide,
crimes against humanity, war crimes, slavery and torture
– apply to anyone anywhere. All Australian cizens and
residents can also be prosecuted domescally for a
number of other serious crimes commied overseas, for
example human tracking and parcular drug oences.
As regards ‘ordinary’ crimes like murder, manslaughter,
causing bodily harm, assault, rape, the and so forth,
Australian law generally does not apply overseas.
Government contractors, however, may come within
the reach of Australian law and courts for these sorts of
crimes through two mechanisms.
The rst is the Defence Force Discipline Act 1982 (Cth).
The main purpose of this Act is to deal, by means of
military tribunals, with oences commied by members
of the ADF. But the Act allows for persons accompanying
the ADF to be designated ‘Defence civilians’, placing them
on a roughly equal foong with ADF members.
Contractors who refuse to be designated Defence civilians,
or who do not work for the ADF in the rst place, escape
the reach of the Defence Force Discipline Act. With
respect to these people, the second mechanism becomes
relevant. This is the Crimes (Overseas) Act 1964 (Cth),
which as a result of substanal amendments made in
2003, extends ACT criminal law to all Commonwealth
contractors in ‘designated countries’. The countries
currently so designated are Iraq, Afghanistan, Solomon
Islands, Papua New Guinea and Nauru.
The Crimes Overseas Act has, however, a signicant
limitaon: it only applies to Australian cizens and
permanent residents. Yet, a signicant number of the
security guards in Iraq and Afghanistan contracted by the
Department of Foreign Aairs and Trade are reportedly
foreigners without any other es to Australia. They would
remain beyond the reach of the Act and, for the most part,
Australian criminal law. Why should that be so?
In conict zones or areas
of instability, contractors
can do all kinds of things,
from operang chow halls,
to maintaining military
equipment, to providing
armed security.