NEPALI CONTRACTORS KILLED IN IRAQ

Adhikari: Trafficking and Forced Labour by US Government contractors in Iraq

In recent US-led multinational interventions, military and diplomatic missions have been staffed by a high percentage of so-called “third-country nationals” (i.e they are neither locals nor nationals of the country employing them), who are often recruited using illegal recruitment practices. This was the case for twelve Nepali men who were lured by the promises of working for a hotel in Jordan. These men went into debt to pay the recruitment fee for this opportunity, however, once they arrived in Jordan, they learned they would be sent to work in Iraq instead. In Jordan, these men were subject to threats, placed in poor living conditions, and had their passports confiscated. On the way to Iraq, these men were captured by Iraqi insurgents, and were tragically executed. The families of the victims filed suit and eventually settled with Daoud, the subcontractor; however, their claims against Kellogg Brown Root were thrown out. This case received international attention, and became the subject of a novel titled The Girl from Kathmandu.

Keywords: recruitment fees, forced labour, poor working conditions

Background

Despite regulations in this area, it is well-documented that third-country nationals (TCNs) are frequently subjected to illegal recruitment practices, including deceptive hiring, trafficking, and forced labour. An ACLU report found that at the time of the report, tens of thousands of TCNs were hired each year through U.S. government contracts to work at U.S. military and diplomatic missions in Iraq and Afghanistan, often recruited with these illegal recruitment practices. Indeed, in 2010 and 2011, there were more TCNs supporting the U.S. military in Iraq than American and local contractors combined. These TCNs come from all over the world, but frequently come from Chile, Colombia, Fiji, India, Nepal, Peru, the Philippines, South Africa, and Uganda.

In this sector, contractors often use local recruiting agents that target vulnerable, poor workers. Agents charge prospective TCN workers recruiting fees, which TCNs frequently go into debt to pay, under the false information about the location and conditions of work. These TCNs often do not become aware that they are actually going to work in Iraq or Afghanistan until after they reach transit points or arrive in these countries. Further, once they arrive, TCNs may learn that they will make significantly less than they were promised, are threatened if they try to leave or seek alternative employment, and may have their passports confiscated.

These practices are hallmarks of modern slavery, forced labour, and trafficking.

The Incident

In 2004, twelve Nepali men were recruited to work in Jordan by a Nepali recruiting company. Each man was promised a hotel-related job in Jordan, and the family of each man went into debt to pay recruitment fees. Once the men made it to Jordan, the men were allegedly subject to threats, locked into a compound, and their passports were confiscated. In Jordan, they were told for the first time that they were being sent to work in Iraq as defence contractors, and that they would actually be paid about three-quarters of what they were promised.

The men eventually travelled through Iraq to a United States military base to work for Daoud & Partners, a Jordanian corporation that had a subcontract with the US defence contractor and private security service provider, Kellogg Brown Root. On the way to the base, they were captured by Iraqi insurgents. The insurgents executed them, and a video of the executions was broadcasted by media outlets.

The Plaintiff that survived, Gurung, was not in the same car, and arrived at Al Asad. Plaintiff Gurung worked on the base in a warehouse position, and alleged that Daoud and Kellogg Brown Root told him that “he could not leave Iraq until his work was complete.”

Legal Aspects

Adhikari v. Kellogg Brown and Root, Inc.

In 2008, the families of the victims, in addition to a Daoud employee that was not captured (Plaintiffs), sued Daoud and Kellogg Brown Root. The collective Plaintiffs alleged that the two companies “willfully and purposefully formed an enterprise with the goal of procuring cheap labour and increasing profits.” The Plaintiffs brought causes of action under the Alien Tort Statute, the Trafficking Victims Protection Reauthorization Act, and state common law. The Plaintiffs quickly settled with Daoud, but they continued their lawsuit against Kellogg Brown Root.

Eventually, after six years, a federal district court dismissed all of the Plaintiffs’ claims, and in 2017, the Court of Appeals held that the dismissal of these claims was proper. The Court of Appeals agreed with the lower court that the Alien Tort Statute did not apply, as the Statute did not apply extraterritorially. Specifically, the Court found that the alleged misconduct could not be deemed “domestic” under the Statute, because all of the alleged international law violations occurred in a foreign country, despite the fact that Al Asad was under U.S. control, and Kellogg conducted financial transactions through U.S. banks.

Further, the Court of Appeals agreed that the Trafficking Victims Protection Reauthorization Act also did not apply extraterritorially at the time of the incident, and that the Plaintiffs could not rely on the state common law claims to save their suit.

The International Code of Conduct

The International Code of Conduct prohibits Member and Affiliate companies from engaging in the trafficking of persons, and requires their personnel to report any instances of trafficking to Competent Authorities. The International Code of Conduct defines human trafficking, in this context, as the recruitment, harbouring, transportation, provision, or obtaining of a person for labour or services through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, debt bondage, or slavery (section 39).

Further, the International Code of Conduct prohibits Member and Affiliate Companies from using slavery, forced or compulsory labour, or to be complicit in any other entity´s use of such labour (section 40).

Section 54 of the Code also prescribes that “Member and Affiliate Companies will only hold passports, other travel documents, or other identification documents of their Personnel for the shortest period of time reasonable for administrative processing or other legitimate purposes.”

Resources on Human Trafficking

Resources on the Prohibition of Slavery and Forced Labour

Impact

The Plaintiffs confidentially settled with Daoud during the course of the litigation.

The case also received significant international attention, including multiple congressional hearings, and serving as the subject of a book, The Girl From Kathmandu by Cam Simpson.

Discussion

How can States and other clients ensure that their supply chains do not involve modern slavery?

How can the recruiting practices of private security companies be extra sensitive to the risks of modern slavery in countries with vulnerable worker populations?

Related incidents

Sources

Case prepared by Madison Zeeman

Disclaimer

As per the Disclaimer on the homepage, neither the International Code of Conduct Association nor any authors can be identified with any opinions expressed in the text of or sources included in The International Code of Conduct Case Map.