As military functions are increasingly outsourced to corporate contractors, civil courts face adjudicating issues of tort liability arising from actions occurring in war zones. Currently, victims of torture and other invasive military techniques used at Abu Ghraib and Guantanamo Bay seek to prevail over issues of sovereign immunity and to hold corporations responsible for the actions of their employees. In response, corporations shield themselves with the government contractor defense: an affirmative defense developed in the context of product liability actions. Recent articles have overwhelmingly suggested that the defense will prevail and often have argued that it should prevail due to issues of sovereign immunity. This article makes a novel claim that places the government contractor defense in the context of international law. This article examines the theoretical foundations of the government contractor defense, comparing the elements of the defense to the international law of human rights, and argues that the government contractor defense is reducible to a claim of "superior orders." The government contractor defense is attempting to hang on the coattails of sovereign immunity, i.e., the defense is nothing more than saying, "the government told me to do it." Indeed, this is what corporations argue to establish the traditional prima facie case for the government contractor defense: specific orders and compliance with those orders. In light of the analytical similarity between the two defenses, and given the absolute ban of the superior orders defense in international law, the government contractor defense is unacceptable in the context of claims of human rights violations.
Jill M. Fraley,
The Government Contractor Defense and Superior Orders in International Human Rights Law,
Fla. A&M U. L. Rev.
Available at: https://commons.law.famu.edu/famulawreview/vol4/iss1/3