Jalal Askander’s daughter, Genevia Jalal Antranick, was traveling by car in Baghdad in October 2007 when private security guards for a U.S. contractor allegedly opened fire.
The driver was killed. So, too, was Antranick, who was sitting in the front passenger seat. She had just celebrated her 30th birthday, and that day was heading home from church, her father said.
This wasn’t the first shooting in Iraq involving civilians and private security guards, of course. A month earlier, guards working for Blackwater Worldwide were accused of opening fire on unarmed civilians in Baghdad’s Nisour Square, killing 17. And coming as it did in the wake of that incident, Antranick’s death didn’t attract much international attention.
But a case brought by her father has continued to wind through U.S. courts, and it again raises questions about the liability of private contractors in Iraq. On Nov. 7, the District of Columbia Court of Appeals is scheduled to hear arguments on one of the thorniest issues in the case thus far: jurisdiction.
The court must decide whether Askan­der has the right to sue two contractors — Singapore-based Unity Resources Group LLC and RTI International, a North Carolina nonprofit — in D.C. court simply because both companies have offices in Washington and, according to Askander, Unity Resources Group couldn’t be sued in RTI International’s home state. In February, Superior Court Judge Anita Josey-Herring decided that the companies’ ties to Washington were too tenuous and dismissed the suit.
Jurisdictional issues have plagued Askander’s case since it was filed in April 2008. The case has shuttled between federal and state courts in Washington and North Carolina. It landed in D.C. Superior Court in August 2010.
The questions of jurisdiction in Askan­der’s case aren’t necessarily unusual, but his case is. Torts on behalf of Iraqi civilians are less common than cases brought by employees of contractors or American soldiers. Askander’s attorney, solo practitioner Paul Wolf, said that “there’s just too many unknowns,” so law firms are wary to take them on. Finding a court to hear these cases is one of several obstacles facing foreign plaintiffs, he said.
Askander, a U.S. permanent resident who left Iraq in 2005, said he hoped the case would make private security companies “think twice before such shootings, because there is someone to ask them why.”
Contractors have been immune against prosecution in Iraqi courts, although that arrangement is set to expire when U.S. troops withdraw at the end of December. Foreign citizens — or, as in Antranick’s case, foreign estates — have typically filed in U.S. federal courts under the federal Alien Tort Statute or Torture Victim Protection Act. But those laws were designed to cover public officials or other parties acting under government authority, not private companies, so making that link can be tough, said Akin Gump Strauss Hauer & Feld partner Paul Butler.
“The potential civil liability for ­private contractors in Iraq and Afghanistan is ­certainly an evolving and uncertain area,” Butler said. “One of the major obstacles that plaintiffs have confronted is state authority.”
Susan Burke, name partner at Wash­ington litigation boutique Burke, brought civil lawsuits against Blackwater over the Nisour Square and other shootings. She said that, in general, putting these types of cases together is more challenging “because of the distance and the violence.” Still, she said, “clearly it’s important that we hold American companies responsible.”
Askander first filed in U.S. District Court for the District of Columbia. The family of the driver, Marani Awanis Manook, also sued the two companies in Washington federal court.
Both lawsuits accused Unity Resources of firing without cause and creating a security environment that allowed these incidents to happen. RTI International, which contracts with the U.S. Agency for International Development to support the Iraqi government, hired Unity Resources Group to protect its employees, so it should be held responsible, too, Askander and Manook’s family argued.
U.S. District Senior Judge Jack Shan­strom, a Montana judge assigned to the cases to ease the Washington court’s docket, transferred them to U.S. District Court for the Eastern District of North Carolina in February 2010. He found that both companies had ties to Washington, but that North Carolina would be a more appropriate forum. He left the question of jurisdiction over Unity Resources Group in Washington unsettled.
Shanstrom also dismissed most of the federal alien tort claims. Neither company was acting on behalf of a foreign state — a standard for claiming war crimes — so they couldn’t be subject to those laws, he wrote.
In North Carolina, the remaining federal claims were dismissed. Manook’s family, represented by Burke, refiled their state claims in North Carolina state court and eventually settled. Askander decided to try again in Washington’s local court.
On appeal, Askander is arguing that both companies had offices in Washing­ton, meaning they were doing business here and are subject to the jurisdiction of the local courts.
Unity Resources Group, represented by Locke Lord, counters that renting office space isn’t the same as doing business. Locke Lord attorney Kevin Walsh said that his client’s “business is providing security.…It doesn’t do business in D.C. and never did.” On the merits of the case, he said that “Unity took all appropriate precautions and provided appropriate warnings, and this was an unfortunate event.”
RTI International, in its brief, also said it had no ties to Washington, pointing to Shanstrom’s analysis on why North Carolina was the best forum. The company is being represented by LeClairRyan. “We are confident that the Court of Appeals will uphold the well-reasoned decision of the Superior Court,” LeClairRyan attorney Leslie Paul Machado said, adding that the lawsuit is “devoid of any allegation that RTI was even present at the time.”
McKenna Long & Aldridge partner David Kasanow, who has represented contractors in Iraq, said that, if immunity for contractors disappears with the withdrawal of U.S. troops, these types of disputes may become moot. “If there is an alleged crime, they could be held criminally liable [in Iraq] and, similarly, if the injured party wants to sue them under Iraqi tort law…they could do that as well,” he said.
Askander said that he wants a resolution, but understands that the courts need time because these types of cases are complex. “I trust the system,” he said.
Zoe Tillman can be contacted at firstname.lastname@example.org.