Human Trafficking (Code Paragraph 39) Archives - ICoCA - International Code of Conduct Association

MAJOR BRAND COMMITS TO RESPECT LABOUR RIGHTS OF SECURITY GUARDS

Background

It is well-documented that third-country nationals (TCNs) are frequently subjected to illegal recruitment practices, including deceptive hiring, trafficking and forced labour. In the private security sector, contractors often use local recruitment agents that target vulnerable and poor workers. Agents charge prospective third-country nationals ‘workers recruiting fees,’ leading to increased risk of debt. Moreover, agents often withhold information on the location and conditions of employment. These practices are hallmarks of forced labour. Hence, it is important for companies to properly acknowledge such illegal recruitment practices and ensure they comply with their corporate responsibilities and human rights obligations set forth by the Guiding Principles for Business and Human Rights.

Since 2022, IKEA updated its Inter IKEA Group policy on human rights, which materialised after an Inter IKEA Group-wide human rights baseline assessment which was subsequently cleared by the Management Board. The policy underscores IKEA’s commitment to respecting international human rights standards in its areas of operation. It emphasises embedding human rights considerations throughout the company’s activities and decisions. This involves proactively identifying potential human rights impacts, addressing any negative impacts and maintaining transparency and accountability.

Good Practice

In Malaysia, IKEA stores severed ties with a private security provider after an investigation allegedly revealed a breach of IKEA’s own labour policies. The investigation allegedly disclosed that “many” security guards in IKEA’s Malaysian stores had paid recruitment fees to secure their positions. It was reported that these mostly Nepali workers paid fees as high as $1,000, and “multiple layers of sub agents [were] involved in the process in rural villages…” Subsequently, Ikano, the company that runs IKEA stores in Malaysia, secured a new supplier that recruited workers directly, instead of using subcontractors. Ikano also stated that it would conduct follow-up audits. Finally, Ikano explained that the incident had been reported to local authorities and the Nepalese embassy.

Inter IKEA Group has acknowledged the various human rights risks when it comes to recruiting migrant workers, including high recruitment fees that migrant workers frequently pay. In response to this risk, IKEA completed projects to map their labour supply chains and highlight the risks associated with migrant worker recruitment.

As a result of the risks associated with migrant worker recruitment, IKEA developed Guidelines on Responsible Recruitment, which aim to build the “understanding and ability of suppliers to responsibly manage the recruitment of migrant workers.” IKEA has since emphasised that they aim to improve and strengthen their dialogue with their suppliers while addressing key topics including working hours, fundamental labour rights and responsible recruitment of migrant workers to respect their human rights due diligence commitments.

Corporate Ethics

IKEA developed Guidelines on Responsible Recruitment, which aim to build the “understanding and ability of suppliers to responsibly manage the recruitment of migrant workers.” IKEA is committed to eliminate worker-paid recruitment fees as shown by their stark decision in Malaysia to terminate their relationship with the private security contractor. The Swedish Company is co-founder of the Leadership Group for Responsible Recruitment chaired by the Institute for Human Rights and Business. This group works to eradicate worker-paid recruitment fees by following the “Employer Pays” principle aligned with the UN Sustainable Development Goal of decent work for all. IKEA expressly stated that they “strongly believe that migrant workers should be treated with respect” and they have therefore “committed to advocate for this goal more widely, with governments, businesses and other relevant organizations, and continue to look for ways to assist and support migrant workers.”

Additionally, IKEA developed an introductory course on human rights and due diligence for all Inter IKEA Group co-workers during the 2022 Fiscal Year. More training programmes were created in collaboration with the International Organization for Migration for IKEA employees and business partners in Thailand, Vietnam, Malaysia, Philippines, Singapore and Australia. The programmes cover international standards, national laws, methods for taking action against unfair treatment and labour exploitation.

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.

Furthermore, 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.

Member and Affiliate companies of the International Code of Conduct Association (ICoCA) commit to the responsible provision of Security Services to support the rule of law, respect the human rights of all persons, and protect the interests of their clients.

By joining ICoCA, the Member and Affiliate Companies affirm that they have a responsibility to respect the human rights of, and fulfil humanitarian responsibilities towards, all those affected by their business activities, including personnel, clients, suppliers, shareholders, and the population of the area in which services are provided. Furthermore, clients could also require that their security providers are ICoCA certified.

Disclaimer

The case map intends to promote conversations on the responsible provision of private security services, by providing a selection that shows on the one hand cases of abuses by private security companies, and on the other, cases of good practice. The case map exists to inform and provide a representation of selected incidents as well as good practices in the field of private security.

The descriptions of the cases reproduced here are not intended to represent opinions or advertisements of the ICoCA or the authors. In cases where the practices of private security providers are presented as responsible, this should not be interpreted as legitimising any potential human rights violations that may have occurred. Similarly, the inclusion of certain cases does not imply that the ICoCA or authors endorse the conduct of any private security companies that have engaged in human rights abuses or violations.

Sources

This case was prepared by Anyssa Boyer, Graduate Institute of International and Development Studies.

SEX TRAFFICKING SCANDAL IN POST-CONFLICT BOSNIA

Background

Following the Bosnian War, the US government contracted the private military and security company DynCorp to provide police trainers and advisors to the UN mission in Bosnia in the late 1990s. Officers from different countries worked there under the umbrella of DynCorp.

Kathryn Bolkovac was a police officer from Nebraska who had joined the UN’s International Police Task Force (IPTF) and had come to Sarajevo in Bosnia in 1999. Due to her expertise in child abuse and sexual assault cases, she was responsible for dealing with the domestic abuse cases in Zenica, especially with regard to women who had been raped during the war. In the course of her job, her interaction with a young girl made her aware of the child rape and prostitution in the area. With subsequent investigations, she found out about the widespread trafficking of women and girls into Bosnia by armed groups and the involvement of the international peacekeepers in this prostitution ring. Allegedly, according to the local police, trafficking in this area started with the arrival of the international peacekeepers.

Bolkovac sent emails detailing the revelations she had found to more than 50 people including officials within the UN, like Jacques Klein, the UN Secretary General’s special representative in Bosnia and officials at DynCorp.

The Incidents

According to Bolkovac, women and girls were “smuggled to Bosnia to ‘to work as dancers, waitresses, and prostitutes’, forced to perform sex acts on customers to pay debts and, if they refused, were ‘locked in rooms without food for days, beaten and gang raped by the bar owners and their associates’”. These girls were trafficked from Russia, Romania, Moldova, Ukraine and other East European countries. The brothels were expansive and all over Bosnia, disguised as bars, restaurants and clubs. Some of the victims were as young as twelve years old. Though raids were conducted in these establishments, they were ineffective. Following this, in October 2000, Bolkovac sent out the emails to various officials detailing the abuses.

Both Bolkovac’s and Johnston’s accounts detail how some of the DynCorp employees purchased women and children and engaged in free sex in brothels. Johnston commented about how some employees publicly boasted about purchasing women and having a sex slave at home. One of DynCorp’s site supervisors whom Johnston had initially approached to reveal the problem, later admitted to the rape of two girls and videotaping it as well. Reportedly, approximately 30-40% of the clients and almost 70% of the revenue from trafficking in Bosnia came from international personnel including the SFOR (Stabilization Force), the UN police and other international and humanitarian employees working there.

According to Bolkovac, DynCorp, which was responsible for hiring American personnel to Bosnia, did not screen its applicants well and sometimes hired personnel with little experience or questionable histories. This made them more prone to falling into cahoots with the local criminal groups.

Investigations

Though Johnston made internal complaints at DynCorp, the company took no action. This prompted him to approach the US Criminal Investigations Command which did substantiate some of his allegations. While Johnston was fired by DynCorp in 2000, it was reluctant to fire the employees about whom Johnston had complained. In August 2000, Johnston sued DynCorp and in August 2002, the case was settled before it was due to go to trial. Some of the employees Johnston had complained about were dismissed or repatriated following the intervention of the US State Department.

Following Bolkovac’s emails, she was demoted to a desk job and later on fired for allegedly falsifying her time sheets. She sued DynCorp in 2001 for wrongful termination and won the case in her favor in August 2002. DynCorp was forced to pay Bolkovac only 153,000 dollars in damages. Though DynCorp appealed the verdict, it dropped it later on.

No members of the UN police or DynCorp employees were prosecuted for trafficking in Bosnia. They were instead repatriated. There was ambiguity over who had the authority to prosecute. Since the US Army did not have jurisdiction over civilian contractors, the case was transferred to the Bosnian police. However, the Bosnian police was unsure whether the immunity under the Dayton Peace Accords was applicable to these contractors and so did not prosecute them. As for DynCorp, it fired seven of its employees for purchasing women including underage girls.

The International Code of Conduct

Under the International Code of Conduct companies cannot allow their personnel to engage in or benefit from sexual exploitation, abuse, or gender-based violence or crimes. Security companies must require their personnel to remain vigilant for all instances of sexual or gender-based violence, and report these instances to competent authorities. (Sexual Exploitation and Abuse (SEA) or Gender-Based Violence (GBV): paragraph 38)

Guidelines on Preventing and Addressing Sexual Exploitation and Abuse

Resources on Preventing Sexual Exploitation and Abuse

The Code also mandates that personnel of Member and Affiliate companies shall not engage in trafficking in persons and will remain vigilant for such instances and report it to Competent Authorities when discovered. The Code describes human trafficking as the “recruitment, harbouring, transportation, provision, or obtaining of a person for (1) a commercial sex act induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age; or (2) labour or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, debt bondage, or slavery” (paragraph 39).

The Code requires stringent selection and vetting of personnel, assessment of performance and duties (paragraphs 45 to 49), and training of personnel of the Code and relevant international law, including human rights and international criminal law (paragraph 55).

Resources on working conditions

The Code also requires that incident reports are to be made for any incident involving its personnel and the use of weapons, criminal acts, injury to persons, etc. (paragraph 63). It also mandates the establishment of a Grievance, Whistleblowing and related procedures to address claims brought by personnel or of third parties regarding the failure of the Company to respect the principles mentioned in the Code (paragraph 66-67).

Meeting the requirements of the Code of Conduct can help private security companies and their clients ensure that private security personnel are qualified, trained, supported, informed, and responsible.

Impact

Despite DynCorp essentially turning a blind eye to the actions committed by its employees while being aware of atrocities its employees engaged in, DynCorp still retained its contract with the US Government for its work in Bosnia. In 2003 it also obtained a lucrative contract with the US State Department for its “War on Terror” operation.

In 2007, the UN established a Conduct of Discipline Unit (CDU) to address similar issues. This initiative still was not sufficient as there has been a number of subsequent incidents.

Bolkovac’s story was later adapted to a film in 2010 and was screened at the UN in New York in 2010.

Discussion

What should be the key features of a proper vetting process?

Discuss how a better equipped internal complaints mechanism could have helped prevent further violations from taking place (like when Johnston initially complained).

Related incidents

Sources

This case was prepared by Shilpa Suresh, Graduate Institute of International and Development Studies.

NEPALI CONTRACTORS KILLED IN IRAQ

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