Sexual Exploitation and Abuse or Gender-Based Violence (Code Paragraph 38) Archives - ICoCA - International Code of Conduct Association

MODERN MERCENARIES: THE WAGNER GROUP IN CENTRAL AFRICAN REPUBLIC

Background

Since late 2012, the Central African Republic (CAR) has been under a protracted crisis triggered by the Muslim Seleka rebels’ military campaign against the government. By early 2013, the Seleka rebels took control of Capital city, Bangui by overthrowing then President Francois Bozizé. This resulted in the renewal of clashes between the various armed factions, and reports of widespread human rights abuses, including indiscriminate killings of civilians.

In response, by mid-2013, Christian and animist anti-balaka militias began organising to combat the Seleka rebels. However, these groups associated the Seleka with being Muslim and consequently carried out extensive reprisal attacks against Muslim civilians in Bangui and western regions of the country. By early 2014, the African Union and French forces successfully ousted the Seleka rebels from Bangui. The MINUSCA, the UN peacekeeping mission to CAR, took over the African Union’s mission by September 2014. Despite these interventions, violence and assaults on civilians persisted and the Seleka factionalised.

In 2016, Faustin-Archange Touadéra was elected as the President of CAR. Despite the presence of French troops and UN forces, he struggled to defeat the rebel forces. In 2018, an agreement was signed between the government of CAR and Russian authorities, outlining the training of their forces by Russian “specialists”, composed of primarily former military officers.

The UN, EU, US and France have reported the presence of the Wagner Group in CAR. According to the former Prime Minister of CAR, there was no contract between CAR and a Russian private security company but only a military cooperation agreement with Russia.

The Wagner Group is one of Russia’s most prominent PMCs and functions as “an unofficial (albeit nominally illegal) tool of Russian foreign policy”. It is an umbrella organisation with multiple entities and operations in different parts of the world, often described as Russia’s proxy military force playing a key role in Russia’s war with Ukraine. In January 2023, the US Treasury Department stated that the Group will be designated as a transnational criminal organisation (TCO). In September 2023, a draft order was laid before the UK Parliament to declare the Wagner Group as a terrorist organisation, under the Terrorism Act 2000.

The Wagner Group has protected the leadership of CAR through security enforcement, military training, shipments of weapons and propaganda campaigns for years. In exchange, it gained profitable mining concessions for gold, diamond and timber. In 2023, hundreds of soldiers from the Wagner Group arrived in CAR to “enhance security measures ahead of the country’s upcoming constitutional referendum”. This deployment was reportedly announced by the Officer’s Union for International Security (COSI), a group which has been linked to the PMC. This group has been labelled by the US as a front company for the Wagner Group’s operations in CAR.

Propaganda and misinformation campaigns have been a tactic employed by Wagner Group to “delegitimise opposition movements and create confusion among the public”. To control the emerging narrative, the Group funded the creation of radio station Lengo Songo which through its broadcasts, advances Russia’s views and ‘legitimises’ Wagner activities in the eye of the local public opinion. Furthermore, through its funds, the Group sponsored and produced films, including a cartoon framing Russian involvement in the CAR as constructive cooperation which showed a “friendly bear helping a lion fight off a group of hyenas” and an action movie filmed in the CAR depicting “Wagner personnel protecting the country from rebels”.

The Incidents

According to UN experts, instructors from the Wagner Group have been intimidating and harassing the civilians, peacekeepers, aid workers and minorities in CAR. UN experts believe that the Wagner Group, along with the local forces, are committing torture, arbitrary detention, summary execution, and more. There have been reports about alleged rape and sexual violence against both men and women. Multiple reports have been made of arbitrary detention and torture. For instance, one of the victims told UN investigators that he was held by a group of Russians, who beat him and cut off one of his fingers.

Human Rights Watch (HRW) first documented cases of abuse by the Russia-linked forces in 2019. According to interviews conducted by the HRW, over 12 civilians mentioned an incident in July 2021, where at least 12 unarmed men were killed by Russian speaking weapon bearers. In another incident, a group of men was accused of being rebels and unlawfully detained by CAR armed forces in inhumane conditions in an open pit at a military base. It was reported that both Russian speaking weapon bearers and CAR soldiers beat five of the detained men.

In May 2023, residents in one of the subdivisions of Bangui went on strike against the “continuous harassment, kidnappings, torture, and intimidation” of the people living in the quarter and the country as a whole by Russian mercenaries of the Wagner security group”.

Human rights violations also occur in other Wagner operating zones including Mali and Sudan. In Mali, women have continuously been targeted by Malian troops and members of foreign security partners. A UN report found that “sexual violence is being used as a war tactic and in a systemic manner” and accused Malian troops and their foreign security partners suspected of including Wagner personnel to have executed 500 people, engaged in sexual violence and torture during an operation in the village of Moura. Additionally, French forces reported Wagner fighters digging and burying bodies in a mass grave. Although they were caught on video, Wagner Group edited the footage with hopes of altering the narrative, wrongfully accusing the French military of the incident and advancing the “anti-French and anti-Western sentiment in Mali”.

Sudan also faces challenges considering the presence of the Group in its rich gold mines. Survivors of the attack reported that miners were killed in a gold mine located between the border of Sudan and CAR while Wagner looted the mine for its resources. Claims state the Wagner troops shot “indiscriminately” killing more than 70 in that single incident.

Legal Aspects

Investigations

Despite the allegations made, there has been no prosecution of any Russian linked forces in CAR. In 2021, a Special Commission of Inquiry was set up by the CAR government. The Commission found that there have been violations of human rights and international humanitarian law, including by these Russian instructors.

In 2022, the UN announced that it would be investigating the allegation of the massacre of 10 civilians by Russian mercenaries and CAR army officers in Gordile and Ndah villages.

The question of whether the Wagner Group meets the definition of a PMSC under the Montreux Document or a PSC under the ICoC remains contested. Furthermore, its employees could qualify as mercenaries, under the definition of international humanitarian law. Wagner Group is itself “nebulous because the actors themselves assume amorphous forms”. Wagner Group operates in a grey zone, fluctuating between the two, hence why it is challenging to regulate their conduct and flag observed violations since they engage in such a diverse range of activities.

Although transnational regulations and voluntary industry codes of conduct like the ICoC exist and provide a regulatory framework and mechanism, they also have limits when attempting to regulate actors operating “with significant state backing and secrecy”. Although complicated to define under international law, Wagner may become a model for others, with a continuing emergence of similar groups that stand in this grey zone. However, members of such groups are not immune from prosecutions for war crimes and other international crimes. There are a few ways to address possible crimes perpetrated by such groups, including prosecuting individuals for the commission of international crimes and/or designating the Group as a TCO or terrorist organisation.

The International Code of Conduct

The International Code of Conduct requires that Personnel of Member and Affiliate companies take all reasonable steps to avoid the use of force, and if force is used, it should be proportionate to the threat and appropriate to the situation. (Rules for the Use of Force: paragraph 29, Use of Force: paragraph 30-32)

Resources on Use of Force

Additionally, security personnel are only allowed to apprehend persons to defend themselves or others against an imminent threat of violence following an attack or crime against Company Personnel, clients, or property under their protection. Apprehension and detention must be consistent with international and national law, and all apprehended and detained persons must be treated humanely and consistent with their status and protections under applicable human rights law and international humanitarian law. (Detention: paragraph 33)

Resources on Apprehending Persons

Resources on Detention

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

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

The US Treasury Department has imposed sanctions on eight individuals and entities that it believes are responsible for expanding Russia’s influence in CAR. The EU has also sanctioned individuals that it believes to be involved in the Wagner Group’s activities. In 2021, the EU said that it would no longer train CAR soldiers due to their links to the Wagner Group. In April 2022, the Human Rights Watch wrote to the Russian foreign minister and the government of CAR seeking information on the presence of Wagner Group in the country and the status of forces agreement between Russia and CAR.

Following the death of its two main leaders, Yevgeny Prigozhin and Dmitry Utkin in 2023, the Group has morphed into a new entity named Africa Corps led by Wagner veteran Anton Yelizarov. Although its affiliations to Russia was ambiguous under the former guise of Wagner, Africa Corps has been clearly presented as a subsidiary paramilitary organisation of the Russian Federation under the pretence of defending its people and its interest. Russia’s direct involvement in the Africa Corps operations could be an attempt to avoid allowing the Group to grow in autonomy and power and challenge the Russian authorities again, as it did during Prigozhin’s mutiny in June 2023. Africa Corps also drives Russia’s foreign policy, meaning the advancement of the country’s military strategy in the African continent. Moreover, experts say that because Africa Corps report to Russia’s Defence Ministry, there exists a possibility for them to be held accountable by Russia for violations perpetrated by troops during military operations.

Discussion

What is the definition of a PMSC? Of a PSC? Does the Wagner group meet this definition? Does the Group under its new name of “Africa Corps” meet this definition?

Do the military advisors employed by Wagner qualify as mercenaries under international law?

How can members of private security companies can be held accountable for their alleged crimes?

What are the implications when a private security company is contracted to work in a volatile and complex environment like CAR?

Discuss the importance of conducting human rights due diligence when outside contractors are introduced to a complex conflict-ridden setting.

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

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).

Resources on working conditions

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.

SEXUAL ABUSE AND EXPLOITATION AT YARL’S WOOD IMMIGRATION REMOVAL CENTRE

Background

The Yarl’s Wood immigration removal center for women, located in Bedfordshire, has been managed by the private security firm Serco since 2007. It can house up to 400 women. In 2011, Sana, a Pakistani inmate, accused healthcare staff at the centre of misbehaving with her. Born in Lahore, Pakistan, at the age of 17, Sana was forced to marry an older family friend, following which the relocated to London. After her divorce, her second relationship also ended up being abusive. She then applied for asylum. After a routine immigration appointment in 2010, she was sent to the Yarl’s Wood centre. Reportedly, she feared that she would be raped at Yarl’s Wood.

Sana accused one of the healthcare staff of sexually assaulting her and reported how he repeatedly approached her. She was supported by one of the female guards, who in turn, ended up being criticised by her colleagues for failing to consider that Sana might be fabricating her testimony as the accused was clearly a “family man with strong religious beliefs”. The following police investigation was not satisfactory, with Sana’s interrogation lasting only for 30 minutes and an ordinary constable being sent instead of a specialist sex abuse officer. The police apparently pointed out the lack of independent witnesses and Sana claimed that she was accused of lying so that she would not be deported back to Pakistan. Shortly after, Sana was sent back to Pakistan.

In 2014, a 23-year-old inmate claimed unwanted sexual contact with two guards at the centre. Serco in turn hired reputation management lawyers. Being aware of Sana’s case and the existence of Serco’s internal inquiry report, The Guardian requested access to the report. Following a four-month legal battle between Serco and The Guardian, the company was forced to publish this internal report into the claims of repeated sexual assaults.

Serco’s handling of this case was accused of being inadequate and an external review was demanded. More women came forward after this, with claims of abuse dating as far back as 2007.

The Incident

One inmate who was detained from 2008-2009 stated that the guards would often flirt with the detainees and that some of the guards would give the impression that if the inmates slept with them, they would put in a good word for them. Another inmate claimed that some of the inmates would have sex with the guards in exchange for favours. Inmates who witnessed sexual contact were threatened with deportation. It is suspected that many victims were deported before being able to testify, thereby ensuring their silence.

The guards have been accused of breaking company policy and entering the inmates’ rooms at night. Some of the inmates reported that fights would break out occasionally between the inmates if they suspected each other of having sex with the same guard. Some also claimed witnessing guards dancing provocatively with the detainees.

Legal Aspects

Investigations

Sana’s case was settled by Serco with a modest amount of damages. According to data that Serco submitted to the Home Office, over 8 staff have been sacked or have resigned over inappropriate behaviour. However, Serco denied any allegation of widespread sexual misconduct between staff and inmates. They claimed that “on the occasion when a complaint of sexually inappropriate behaviour between staff and a resident was brought to our attention in 2012 the matter was properly investigated and the police were kept fully informed throughout. As a result, three members of staff were dismissed.”

The Home Office stated that any claims of misconduct would be thoroughly investigated. However, the Home Office denied the Observer access to the detention Centre. Even the United Nations expert into violence against women was refused permission to inspect the Centre by the Home Office.

According to a 2015 report by the HM Chief Inspector of Prisons, more detainees stated that they felt unsafe compared to the previous inspection. Four women reported sexually inappropriate comments and though no one reported direct experience of sexually inappropriate behaviour during the interviews, some inmates did mention a past incident where an inmate became pregnant due to a guard. In 2016, an independent investigation report was submitted to the Serco board. The report concluded that “there is no abusive culture at Yarl’s Wood”. However, a report by the National Audit Office (NAO) in 2016 found that “staff at the center were not adequately trained to deal with the particular concerns, issues and vulnerabilities of those in immigration detention”.

The International Code of Conduct

Guidelines on Preventing and Addressing Sexual Exploitation and Abuse

Resources on Preventing Sexual Exploitation and Abuse

Resources on working conditions

Impact

In 2016, Serco agreed to the recommendations made by the independent investigation report. They announced that they implemented changes like the introduction of body cameras for all front-line staff, hiring more female staff, reviewing of recruitment to ensure suitable candidates are selected and more.

In 2020, Serco was awarded a 200-million-pound contract by the Home Office to run two other immigration removal centres in the UK: Brook House and Tinsley House immigration centres.

Discussion

Discuss the importance of an effective Grievance, Whistleblowing and Complaint mechanism in preventing widespread sexual abuse. What factors contributed to the guards abusing their power and exploiting the vulnerabilities of the detainees? How can they be made less vulnerable to such exploitations?

Related incidents

Sources

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

TORTURE AT THE ABU GHRAIB FACILITY

Background

The Abu Ghraib facility is a large prison complex in Baghdad, Iraq. During the regime of Saddam Hussein, it was infamous for the detainment and torture of political prisoners. The prison was reopened in 2003 by the US military after the invasion of Iraq by the US and its allies. In 2003, the Associate Press published the first press report focusing on the mistreatment of detainees under U.S. control at the Abu Ghraib facility. By 2004, images of abuse and torture taking place at the facility emerged as part of CBS’s “60 Minutes 2” program, leading to a scandal for the then US President George W. Bush’s administration.

A report from the US army’s internal investigation carried out in 2004 under Army General Antonio Taguba, detail the shocking practices that were followed. One gruesome image that quickly became well publicized was of US Army specialists giving a thumbs-up and posing next to the dead body of Manadel al-Jamadi who was clearly tortured and died of asphyxiation.

CACI International Inc. was a defense contractor hired by the US to provide interrogation services at Abu Ghraib. The company L-3 Services (formerly called Titan Corporation) was the contractor responsible for translation services. They were hired as the US military lacked enough trained interrogators to fully staff the Abu Ghraib facility. The employees and managers of CACI have been accused of directing or/and encouraging torture and of covering it up.

In 2008, four plaintiffs who were formerly detained at Abu Ghraib filed a lawsuit against these defense contractors for their complicity in torture. In November 2024 US jury found CACI liable for abusing the prisoners.

The Incidents

Detainees were physically and sexually abused, inflicted electric abuse and mock executions. The report by Taguba include incidents of rape, photographing and videotaping nudes of male and female detainees, use of extreme force against them and more. Torture was not limited to just physically but emotionally and psychologically as well. For instance, in one incident a prisoner was coerced into thanking Jesus for his life.

According to one of the plaintiffs in the lawsuit field in 2008, he was subjected to electric shocks, deprivation of food, kept naked, etc. Another plaintiff recounted how he was forcibly subjected to sexual acts and forced to witness the rape of another female prisoner. Other incidents include, sensory deprivation, solitary confinement, assault, being forced to be in stress positions for long periods of time, having their genitals beaten and more.

Legal Aspects

Court Cases

On 9 June 2004, a group of 256 Iraqis, who were former detainees at the Abu Ghraib facility, filed a case against CACI and L-3 Services. The defendant companies argued that the subject matter of the claim constituted a political question and so cannot be decided by the courts. They also claimed their immunity as government contractors. The court dismissed the companies’ motion to dismiss the compliant in June 2006. In September 2009, the courts ruled in favor of the defendant companies. Though the plaintiffs filed a petition for an appeal in April 2010, in June 2011 the US Supreme Court announced that it would not hear an appeal in this case.

On 30 June 2008, four other plaintiffs filed a separate case against CACI International Inc. for directing their torture at Abu Grahib prison. The lawsuit does not allege that CACI employees themselves carried out the abuses but that they instructed the soldiers to ‘soften’ up the detainees, so that they would more easily reveal information, even though CACI knew this ‘softening up’ would lead to torture. In addition to CACI, the lawsuit also filed against L-3 Services Incorporated and against a former employee of CACI, Timothy Dugan.

The plaintiffs are Iraqi civilians who were detained at the Abu Ghraib prison and later released without being charged for any crime. It was filed on the behalf of the plaintiffs by the Center for Constitutional Rights. The case was filed under the 1789 US law Alien Tort Statute (ATS) which can be used to pursue legal claims over alleged human rights abuses and violations of US and international law including torture, assault, sexual assault and battery, negligent hiring and supervision, etc.

CACI has claimed the lawsuit to be baseless. Since the case was first filed in 2008, CACI has attempted 18 times to have the case dismissed. Both L-3 Services and Timothy Dugan were dismissed as defendants in the case in 2008. In 2019, CACI appealed against the 2019 decision of a lower court’s that favored the plaintiffs. In June 2021, US Supreme Court judges declined to hear CACI’s appeal, putting them a step closer to facing a lawsuit by the plaintiffs.

A new trial for this lawsuit was set to begin on April 2024 in the District Court for the Eastern District of Virginia. In November 2024, over two decades after the events occurred, a jury awarded $42 million to three former Abu Ghraib detainees after finding CACI liable for collaborating with military police to perpetrate abuse against the prisoners.

The International Code of Conduct

Resources on Use of Force

Resources on Apprehending Persons

Resources on Detention

Guidelines on Preventing and Addressing Sexual Exploitation and Abuse

Resources on Preventing Sexual Exploitation and Abuse

Further, the International Code of Conduct requires stringent selection and vetting of personnel, assessment of performance and duties, and training of personnel of the Code and relevant international law, including human rights and international criminal law.

Impact

In 2004, in an attempt to undo the damages, the Justice Department stated that it would rewrite its legal advice on how interrogations are to be conducted. The same year, the CIA also stated that it would suspend its use of interrogation techniques at detention facilities until a rule was made on what was permissible. In 2009, torture was banned under the Obama administration. A new legal framework was also created, so that perpetrators could be held liable, irrespective of their status as the employee of a government or military contractor. In 2006, the prison was handed over to Iraqi authorities and in 2014 it was shut down.

A limited settlement was provided by the private security firm responsible for offering translation services to some of the survivors of the abuse at the Abu Ghraib facility. Though 11 soldiers were convicted for their actions, the US military itself has not paid any compensation to any of the detainees.

CACI continues to be a defence contractor for the US government, with the company recently gaining a contract worth 382 million dollars in 2024.

Discussion

Would better training of the employees of CACI in international law and human rights law have had any impact in mitigating the abuse and torture at Abu Ghraib?

Related incidents

Sources

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

ONGOING CASE: ALLEGATION OF KILLINGS AT PINEAPPLE FARM IN KENYA

Background

Del Monte’s pineapple farm in Kenya is the “single largest exporter of Kenyan produce to the world”. Almost all pineapples produced in the Del Monte farm in Kenya are exported abroad, mainly to British supermarkets like Tesco, Waitrose, Asda and Sainbury. In contrast, the local villages surrounding the farm live in poverty, leading to a black-market demand for the fruit in this area. Some villagers, particularly the young men, are accused of trespassing on Del Monte’s farmland to steal the pineapples. Allegedly, these young men often raided the farms on motorcycles leading to clashes between the guards and the villagers over the stolen pineapples, with one security guard losing an eye due to a stone thrown by a thief. The claims suggest that the guards, in return, have been using excessive force while dealing with the villagers.

This Del Monte farm employs 273 security guards. The guards are armed with wooden clubs called “rungus”. Reports suggest that the guards have been assaulting the villagers with rungus causing blunt force trauma, leading to death in some cases. Reports made to the police usually have no follow up, with the police allegedly turning a blind eye to the violence. These security guards have been reportedly accused of five deaths over the last decade but have had no convictions.

The Incidents

The law firm Leigh Day has detailed over 146 alleged incidents in its letter to Del Monte. The joint investigation by the Guardian and The Bureau of Investigative Journalism also uncovered claims from the villagers including eye witness accounts. They also investigated four deaths linked to Del Monte security guards. Incidents of violence include the guards allegedly attacking the passengers of a minibus travelling through the plantation in 2021 September. The bus had broken down on the public roads within the plantation and the passengers were beaten up with rungus.

On December 2022, John Rui Karia was allegedly attacked as he slept by the road side next to the farm. Reportedly, though the guards beat him up badly, he was denied medical care and passed away after a week in prison. The pathologist’s report revealed that he suffered a series of injuries including “multiple contusions of the abdomen, lungs, and brain, and defence injuries to the forearms”.

On July 2023, Del Monte guards were once again accused of reportedly running over and seriously injuring two teenagers for alleged theft. Other accusations include death due to strangulation, blunt force trauma, drowning and more. Victims often had signs of assault and violence. There are reports of serious injuries and beatings and five allegations of rape.

Legal Aspects

Investigations

Though five former guards of Del Monte were fired for their involvement in the death of one of the locals in 2019, their trial has still not taken place. On the other hand, some of the local men who were found guilty of stealing pineapples have been given long prison sentences, with some even sentenced to death.

Kenya’s Human Rights Commission has launched an investigation into these allegations. It has asked Del Monte to take immediate action and to ensure effective remedy and has asked state agencies to “hasten and conduct structured investigations”. It has also asked Del Monte to put measures into place to prevent similar future incidents.

The International Code of Conduct

The International Code of Conduct requires that Personnel of Member and Affiliate companies take all reasonable steps to avoid the use of force, and if force is used, it should be proportionate to the threat and appropriate to the situation. (Rules on the Use of Force : paragraph 29, Use of Force : paragraph 30-32).

Resources on Use of Force

Resources on Apprehending Persons

Resources on Detention

Guidelines on Preventing and Addressing Sexual Exploitation and Abuse

Resources on Preventing Sexual Exploitation and Abuse

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). 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.

Resources on working conditions

Impact

In 2019, after one of the locals was allegedly beaten to death by the security guards on the farm, Del Monte improved its security and safety practices. The company updated radio communication, trained guards on new formal rules of engagement and enhanced formal processes around allegations of violence. Still, five of the alleged deaths caused by security guards occurred post 2019.

Del Monte has stated that it views these allegations seriously and has launched a “full and urgent investigation” on them. Companies like Tesco have suspended its orders from Del Monte sourced from this farm until investigations are completed. Waitrose too reiterated that all its suppliers should comply with “strict ethical standards”.

Discussion

How can companies proceed to win back the trust of the local community after violent incidents?

How should the security guards of Del Monte have dealt with the individuals they accuse of trespassing? What kind of measures would have made the guards better equipped to deal with this situation?

How can clients and private security companies prevent sexual abuse and the use of force against vulnerable local villagers?

Related incidents

Sources

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

SEXUAL VIOLENCE AT THE PORGERA MINE

Background

The Porgera mine is located in Porgera, Papua New Guinea, situated in the mountainous highlands of the country. An indigenous community, the Ipili of Porgera, live in the area surrounding the mine.

Security at this mine is provided by private security companies in addition to Papua New Guinea reserve police, who are engaged at the mine under provisions of a Memorandum of Understanding. The Memorandum of Understanding outlining the security agreement has not been made public by any mine or Barrick Gold officials. However, it is documented that the “reserve police” have the power of arrest, and are integrated into the regular police practices of Papua New Guinea.

Two Human Rights Watch reports, issued in 2005 and 2006, outlined several alleged concerns with policing practices in the area, including excess use of force, arrest and detention, and rape. Subsequent yearly reports did not show substantive improvements in the area of human rights; further, Human Rights Watch noted that reserve police received far less pay and training compared to regular police, and were “especially blamed for violence and other illegal acts.”

The Incident

119 women were allegedly subjected to sexual violence and excessive use of force by mine security and police. One of the victims alleged that she had been gang raped by five security personnel in September 2009. The alleged perpetrators were not brought to justice.

Legal Aspects

Court case

Eleven women and girls who were allegedly raped or sexually assaulted reached an out-of-court settlement as they were preparing to sue Barrick Gold in the United States, convinced they would be unable to find justice in Papua New Guinea.

After Barrick Gold completed an internal investigation in response to allegations of rape and sexual assault, Barrick Gold called the results of the investigation “disturbing” and terminated multiple security personnel for involvement in, or failure to report, alleged incidents of sexual assaults. Also as a result, two former Porgera employees were charged with rape, and a third former Porgera employee was charged with inflicting grevious bodily harm.

The International Code of Conduct

Guidelines on Preventing and Addressing Sexual Exploitation and Abuse

Resources on Preventing Sexual Exploitation and Abuse

Impact

In 2015, the lawsuit between 14 Papua New Guineans and Barrick Gold Mine, regarding alleged acts of sexual violence, was settled out of court. Under the settlement, the individuals received compensation under a “Porgera Remedy Framework” and payment in connection with their participation in the mediation process, which ultimately led to the resolution of the lawsuit.

Mark Bristow, president of Barrick Gold, hoped to build back trust with the community through a new deal with various features. First, the new deal raised Papua New Guinea’s ownership stake to 51%. Additionally, Papua New Guinea’s stakeholders would receive 53% of the economic benefits and guaranteed the government tax payments. The government would be guaranteed tax revenues, regardless of whether or not the costs of capital improvements to the mine have been recouped. Further, the deal gave Papua New Guinea the right to buy the mine at the end of 10 years at fair market value if Barrick fails to win back trust.

In 2012, Barrick Gold acknowledged the rape problem at the Porgera Mine and created the Porgera Remedy Framework, a non-judicial process organized by the company to hear claims of sexual violence.

Discussion

How can private security companies and their clients prevent sexual abuse and exploitation of vulnerable populations?

What can a private security company do to “win back the trust” of a community after an incident occurs?

Related Incidents

Sources

Case prepared by: Madison Zeeman

VIOLENCE AND SEXUAL ASSAULTS AT KAKUZI FARM

Background

Kakuzi Products is a Kenyan agricultural company based in Makuyu, Kenya. Kakuzi’s products include tea, livestock, forestry, blueberries, macadamia nuts, and avocados, the latter of which are grown in Murang’a County. Kakuzi employs several hundred guards to police its land holdings in the area.

The Incident

In 2020, seventy-nine Kenyan claimants alleged that the security guards protecting Kakuzi land holdings “intentionally and systematically mistreat members of the surrounding communities to physically punish local community members for either crossing Kakuzi property or raising issues against Kakuzi.” Specifically, the claimants alleged that security guards in the area battered a young man to death for allegedly stealing avocados, raped ten women, and committed multiple attacks on villagers.

Legal Aspects

The 79 Kenyan claimants argued that Camellia PLC, Kakuzi’s UK based parent company, breached its duty of care toward the claimants to prevent Kakuzi security guards from assaulting them. Under English law, parent companies can be held liable for the tortious acts of its subsidiaries if the company has a duty of care towards the persons harmed by the operation of a subsidiary. The parent company’s duty of care depends on the extent to which the parent company exercises control over its subsidiary, including the extent of intervention, supervision, and advice over the operations of the subsidiary. (Lungowe v Vedanta Resources, 2019, UKSC 20).

According to Leigh Day, there is evidence that Camellia tightly supervises, manages, and controls Kakuzi, therefore fulfilling the Lungowe test.

However, the lawsuit settled without a court judgement, so it is unclear whether Camellia’s involvement in Kakuzi’s affairs would have resulted in liability for Camellia for Kakuzi’s alleged human rights violations.

The International Code of Conduct

The International Code of Conduct requires that Personnel of Member and Affiliate companies take all reasonable steps to avoid the use of force, and if force is used, it should be proportionate to the threat and appropriate to the situation. (Rules on the Use of Force : paragraph 29, Use of Force : paragraph 30-32)

Resources on Use of Force

Guidelines on Preventing and Addressing Sexual Exploitation and Abuse

Resources on Preventing Sexual Exploitation and Abuse

Finally, the International Code of Conduct requires stringent selection and vetting of personnel, assessment of performance and duties, and training of personnel of the Code and relevant international law, including human rights and international criminal law. 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

Following an article in the UK Sunday Times alleging that guards at Kakuzi farms committed various human rights abuses, supermarkets including Tesco, Sainsbury’s, and Lidl cut ties with Kakuzi. Over a year later, each of these grocery store chains were still actively monitoring Kakuzi to determine whether improvement in practices had been made.

Settlement

Shortly after the Kakuzi litigation commenced, the parties settled for £4.6m ($6.5m). In addition to the cash settlement, Kakuzi is obligated to place measures that will benefit the community on and around the farm, including:

the funding of charcoal kilns and access to firewood so local communities can produce and sell sustainable charcoal for their own income generation;
building two social centres for community meetings;
employing predominantly female Safety Marshalls on Kakuzi’s farm to give visible reassurance to those using access routes and particularly women;
building three new roads accessible to the community without any requirement to obtain a licence to give people better access to local amenities
the establishment of a Technical Working Group to survey and demarcate land which has been previously donated by Kakuzi and
the design and implementation of a human rights defenders policy.

Discussion

How can community involvement measures, such as those that Kakuzi agreed to implement as part of the settlement, improve community relations and prevent human rights abuses before they happen?

What can parent companies do to limit liability resulting from their private security contractors?

Related Incidents

Sources

Case prepared by Madison Zeeman