Use of Force (Code Paragraphs 30-32) Archives - Page 2 of 2 - ICoCA - International Code of Conduct Association

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

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)

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.

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)

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.

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

ESCOBAL MINE: VIOLENT REPRESSION OF INDIGENOUS PROTESTS

Background

The Escobal Mine, operated by Tahoe Resources Inc. at the time of the incident, was a Canadian-owned mine in San Rafael las Flores, Guatemala. The Escobal mine produces concentrates of silver, gold, lead, and zinc. The population of the Department of Santa Rosa, where San Rafael las Flores is located, is mostly mestizo with about 5% of the population identifying as indigenous Xinka.

According to the Centro de Acción Legal-Ambiental y Social de Guatemala, the San Rafael las Flores community has rejected the Escobal Mine Project for several reasons: These reasons include the alleged threat of the project to the area’s hydrological resources, risk of other environmental impacts, and the lack of a community consultation about the mine. Allegedly, prior to the incident, over 500 members of the local communities gathered to protest at the mine, demanding that the company workers leave the area.

The Incident

On April 27, 2013, members of the community, including the Plaintiffs-Appellants in the case, participated in a protest outside the gates of the mine. According to information discovered during the course of the litigation, Tahoe’s security manager, Alberto Rotondo Dall´Orso, was concerned that the protests would interfere with the operation of the mine. This belief arose out of prior conflicts resulting from protests of the mine; the security and Tahoe Resources personnel were allegedly aware of the strong community opposition to the mine project.

The Plaintiffs-Appellants alleged that security guards then opened the mine gates and “opened fire on the protestors using weapons that included shotguns, pepper spray, buckshot and rubber bullets.” Several protestors were injured.

Finally, the Plaintiffs-Appellants alleged that the shooting was planned, ordered, and directed by Rotondo and that Tahoe “expressly or implicitly authorised the use of excessive force by Rotondo and other security personnel, or was negligent in failing to prevent Rotondo and other security personnel from using excessive force.”

Legal Aspects

Court cases: Garcia v. Tahoe Resources Inc., 2017 BCCA 39.

Initially, the community litigants (hereinafter, “Plaintiff-Appellants”), filed a civil claim against Tahoe Resources in the Supreme Court of British Columbia. The Appellants alleged three causes of action against Tahoe Resources: (1) direct liability for battery, (2) vicarious liability for battery, and (3) negligence. Essentially, the Plaintiff-Appellants claimed that Tahoe expressly or implicitly authorised the unlawful conduct of Rotondo and the security personnel, and as the parent company of Minera San Rafael, Tahoe Resources was vicariously liable for the battery. Finally, the Plaintiff-Appellants alleged that Tahoe had a duty of care towards the Plaintiffs-Appellants because it controlled operations of the mine, and knew about the opposition of the mine. According to the Plaintiff-Appellants, Tahoe Resources breached this duty of care by failing to conduct background checks, failing to establish and enforce clear rules of engagement, and failing to adhere to and monitor adherence to Corporate Social Responsibility policies.

In August 2014, Tahoe Resources filed a notice of application to move the proceedings to Guatemala, which the judge granted. The judge found that Guatemala was “clearly the more appropriate forum for determination of the matters in dispute.” This finding was based on the fact that the alleged battery and breaches of duty occurred in Guatemala, and that corruption within the Guatemalan criminal justice system was not relevant to the civil claims for injury.

The Plaintiff-Appellants appealed this decision, and the appellate judge agreed in 2017 that Guatemala was not the appropriate forum for the dispute. The Canadian case Club Resorts Ltd v Van Breda, 2012 SCC 17 states that context-specific factors and concerns may be considered by the court in deciding whether to apply forum non conveniens. In overturning the initial non conveniens decision, the appellate judge considered the difference in available discovery procedures in Guatemala and British Columbia, the difference in limitation period for parties to commence a civil suit, and the risk of unfairness in the Guatemalan Justice System. As these factors, according to the judge, unfairly disadvantaged the Appellants, the lawsuit was moved to British Columbia.

The International Code of Conduct

Resources on Use of Force

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.

Impact

Suspension of licence

In 2017, the Guatemalan Supreme Court of Justice temporarily suspended Tahoe Resources’ mining licences, until a suit against the Ministry of Energy and Mines is resolved for discrimination and lack of prior consultation with the indigenous Xinka communities. The suspended licences included the licence to operate in the Escobal Mine.

Tahoe Licences Suspended for Lack of Consultation with Indigenous Communities, While Company Denies Indigenous Presence and Opposition – NISGUA

As of September 2018, the licence was still suspended. Tahoe’s Escobal mine license to remain suspended — Guatemalan court – Business & Human Rights Resource Centre

As of April 2022, Pan American Silver still had no concrete date for the reopening of the mine. Mining firms cautious as Guatemala seeks to lift suspensions – BNamericas

SettlementsPan American Silver, who had acquired Tahoe Resources earlier in 2019, settled with the Plaintiffs-Appellants to end the litigation in British Columbia in July 2019. The terms of the settlement are confidential.

Stock Prices

Tahoe Resources’ stock, prior to the incident, was priced at $27 a share, but the value fell after details of the incident at Escobal Mine emerged. The mine was eventually suspended by a Guatemalan Court, and Tahoe was sold to Pan American Silver for $5 a share.

After Pan American Silver purchased Tahoe Resources, it initiated a plan to hire more women security guards. (see p. 96, 2021 SUSTAINABILITY REPORT | Pan American Silver)

Public relations

After the conclusion of the case in 2019, Pan American Silver, a company that acquired Tahoe Resources earlier that year, released a public statement acknowledging that the 2013 shooting infringed the human rights of the protests. In the statement, Pan American Silver, on behalf of Tahoe, apologised to the “victims and the community.”

Discussion

After Pan American Silver purchased Tahoe Resources, it initiated a plan to hire more women security guards. How might an increased female security personnel presence improve community relations?

Before the incident, it was alleged that Tahoe’s security manager was concerned that the protests would interfere with the operation of the mine. How could personnel training and procedures address both the protests and the operation of the mine?

Related incidents

Sources

Case prepared by Madison Zeeman

REPRESSION OF PROTESTS AGAINST THE RIO BLANCO MINE

Background

According to Blanco Copper SA, the Rio Blanco mine project was thought to be one of the largest under-developed copper resources in the world. The Rio Blanco mine is located in a remote area in Northern Peru, in the lower Andes and near El Cajas National Park. The mine is also situated on land belonging to the two peasant communities of Yanta and Segunda y Cajas, both of which hold official land titles.

Rio Blanco is recognised as an Indigenous community by the Federation of Indigenous and Peasant Organisations in the Azuay province (FOA). According to Lauro Sigcha, the chair of FOA, the villagers in the area originally had high hopes for the mine in terms of employment opportunities. When the community saw that those employment opportunities never materialised, the villagers started to protest against the mine. In 2007, a non-binding local referendum was held, which revealed the large extent of local opposition to the project.

Further, the Rio Blanco mine lies close to El Cajas National Park and other important water sources for the area. El Cajas National Park is environmentally vulnerable, as it houses the South American Condor and the Curinquinga, two raptors that are vulnerable to extinction. As a result, the park is recognized as a Ramsar Wetland of International Importance and an Important Bird Area. Finally, the forest ecosystem performs important ecological functions, such as water harvesting and erosion control. This fragile forest is vulnerable to accelerated erosion. Allegedly, environmental groups and locals have “always objected” to the mine’s plans to use up to 1,000 litres of water per hour.

According to Rio Blanco Copper SA, concern over environmental issues and distrust between the local communities and the central government of Peru resulted in an “active and highly politicised anti-mining movement.” The members of the protest movement had the goal of obtaining total suspension of all mining activity in the area.

According to Rio Blanco Copper SA, prior to the incident at issue in the lawsuit, there was an incident in April 2004 in which a protester was fatally wounded. In response to past incidents in 2004 and 2005, the corporation allegedly took various remedial steps, including an increase in social outreach programmes with local communities and liaison with regional and national governments.

The Incident

On August 1, 2005, there was a protest against the proposed development of the Rio Blanco Mine. The demonstration included a march to the mine camp. The plaintiffs of the lawsuit (Claimants) alleged that once they reached the camp, police and private security personnel sprayed noxious substances into their faces, hooded them, beat them with sticks, and whipped them. The Claimants also alleged that they were held captive. Further, two of the female Claimants alleged they were sexually assaulted and threatened with rape. Finally, one of the Claimants alleged that there was a shooting that resulted in the death of one of the demonstrators.

Legal Aspects

Court case: Monterrico Metals lawsuit (re Peru). Filed 1 Jan. 2009.

The Claimants sought damages for physical, psychological, and other consequential damages from Monterrico Metals, and other defendants including Forza (part of Securitas) and Securitas AB Group, under a theory of negligence “and/or conspiracy to injure, assault, batter, falsely imprison the Claimants.” The Claimants contended that the officers of Rio Blanco or of Monterrico should have intervened to prevent the abuse of their human rights, and/or were otherwise responsible for their injuries. According to the Claimants, under English and Peruvian law, the Defendants were liable due to the direct participation of their personnel in the running of the mine, and the specific responsibility for risk management. Further, according to the Claimants, the Defendants had knowledge as to the risk of violence to which environmental protestors could be exposed, and the Defendants had knowledge as to the serious risk of “violence, ill-treatment, and human rights abuses…”

In regards to the alleged breach of duty by the Defendants to the Claimants, the Claimants alleged a lack of risk management procedures, a failure to ensure that suitable and reliable private security companies were contracted, and a failure to take adequate steps to stop the ill-treatment of the Claimants.

In a judgement, the High Court considered a potential time bar to present claims under the Foreign Limitation Period Act. However, Mr. Justice Tugendhat contended that such a time bar would be contrary to public policy, and would cause undue hardship, as the Claimants were vulnerable, poor, and lived in an area so remote that the Claimants had no access to legal advice.

In another judgement, Mrs Justice Gloster set out a conclusion that the Claimants had established a “good arguable case” sufficient to support a world-wide freezing injunction of the Defendant’s assets. Gloster J considered the Claimants’ total claim for general damages, which would be an estimated figure of £1.6 million. Gloster J also considered legal costs and insurance premiums. Based on this figure, Gloster J decided that the amount of the freezing injunction should be £5.015 million.

The International Code of Conduct

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

Further, the International Code of Conduct 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.

Guidelines on Preventing and Addressing Sexual Exploitation and Abuse

Resources on Preventing Sexual Exploitation and Abuse

Impact

Public Relations

In September 2006, Rio Blanco issued a document stating that the company was undergoing a “sincere period of change and substantial improvement in its attitude towards engagement and dialogue with all those who are located in the area of influence of the Rio Blanco Project.” Rio Blanco wished “to express its public censure and its most deeply felt apologies for attitudes and conflicts that in the past have occurred between certain of its staff and workers…” Rio Blanco denied that this document was an admission of liability in respect to the incident at issue.

The Claimants contend that there were allegedly damning photographs taken of the protest and torture victims at the time of torture published in January 2009. A week after the photographs were published, Rio Blanco stated “regrettably, our managers and employees were not innocent in this violent aggression.”

Settlements

In July 2011, three months before trial was scheduled to take place, Monterrico agreed to a confidential settlement with the Claimants.

Discussion

Whether or not the private security company or their client were aware of the specific risk of violence between private security personnel and civilians affected the liability of the company. What are some indications that there is a potential risk of violence?

What steps can private security personnel do to prevent unnecessary use of force, even with a risk of violence or conflict?

How can private security companies and their personnel prevent gender and sexual violence or exploitation when their personnel are responsible for detaining individuals?

Related incidents

Sources

Case prepared by Madison Zeeman

KILLING BY SUPERMARKET GUARDS

Background

In 1888, Brazil was the last country in the Western Hemisphere to abolish slavery. At the time of abolition, Brazil’s population was mostly black or mixed-race until the 1930s, when an influx of European immigrants came to Brazil in search of labour. During this era, anti-black pseudoscientific methods were used to scientifically “prove” white biological superiority. These (clearly false) theories were widely disproven by the mid-20^th century, yet these theories were still used to propagate racism in social and political policies.

Today, these overtly racist policies are no more, and most Brazilians recognize the remaining racial prejudice and discrimination that persists in Brazil. However, statistical analysis reveals disparate treatment of non-white Brazilians in multiple areas of society. For example, on average, non-white Brazilians earn half the income of the white population of Brazil, and Black Brazilians are almost three times as likely to be victims of homicide compared to others.

While Black and mixed-race people account for about 57% of Brazil’s population, they constitute 74% of victims of lethal violence, and 79% of those killed by the police. On the corporate side of Brazil, Black Brazilians occupy less than 5% of seats on company boards. Finally, discrimination still persists in the form of slights, aggressions, and racial insults.

The Incident

On November 19, 2020, in Porto Alegre, Brazil, a Carrefour Supermarket store employee called security after a man allegedly threatened to attack her. Footage from the incident appeared to show that the man, João Alberto Silveira Freitas, was punched in the face, and later kneeled on, by two white security guards, resulting in his death. According to the state forensics institute, the cause of death was asphyxiation. The preliminary investigation allegedly stated that Freitas was beaten for more than five minutes before dying.

Bystanders filmed the incident, which was widely shared on social media. Another employee appeared to be alongside the security guards, filming the incident.

Legal Aspects

Supervisory Duty

According to the homicide investigator Vanessa Pitrez, Carrefour supervisor Adriana Alves Dutra had authority over the guards, implicating the duty to stop them from beating Freitas. Thus, according to Pitrez, this authority could have resulted in Dutra being convicted of homicide as a co-conspirator.

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

When apprehending persons all apprehended persons should be treated humanely and consistent with their status and protections under applicable human rights law or international humanitarian law, including in particular prohibitions on torture or other cruel, inhuman or degrading treatment or punishment (paragraph 34)

Resources on Apprehending Persons

Impact

The day after Freitas’ death, Carrefour SA said that it “deeply regretted what it called a brutal death,” and indicated that Carrefour SA took steps to ensure that those responsible were legally punished. Carrefour stated that it would terminate the contract with the security firm, fire the employee in charge of the store at the time of the incident, and close the store as a mark of respect.

Further, the Chairman and CEO of Carrefour, Alexandre Bompard, took to Twitter and stated that internal measures were implemented by Carrefour in Brazil. Bompard called for a review of employee and sub-contractor’s training on security, diversity, and tolerance values.

Carrefour Supermarket established a $5M fund to combat racism in Brazil, and stated that Black Brazilians would represent at least 50% of annual new hires.

Lawsuit and Settlements

Shortly after the incident, the Brazilian state sued Carrefour for $38 million in damages for the death of Freitas. The lawsuit also asked the court to shut down the store, “with the objective of reducing the risk of hostile acts that could occur during protests.” Finally, the complaint demanded the creation of a plan to combat racism and discriminatory treatment by the retailer in Porto Alegre.

In June 2021, Carrefour settled with the Federal Prosecutor’s office and other parties to pay R$115 (US 22$M). This settlement put to end all lawsuits relating to the implementation and execution of anti-racist racial diversity measures.

Stock Prices

Following the death of Freitas, Carrefour Brasil was removed from an index of companies with the best environmental, social, and governance policies run by S&P Dow Jones and B3. Just four days after the death of Freitas, Carrefour Brasil’s share price plummeted 6% in afternoon trading.

Criminal Investigation

Eventually, the two men who allegedly beat Freitas were detained and were investigated for homicide, due to the victim’s asphyxiation and inability to defend himself.

Protests, Violence, and Property Damage

The day after Freitas’ death, protestors started handing out stickers depicting the Carrefour logo stained with blood, called for a boycott of the chain, and held up “Black Lives Matter” signs. Later that evening, the protest turned violent, and demonstrators allegedly smashed windows and delivery vehicles. Protestors then stormed and trashed the supermarket where the incident took place, and 200 protestors gathered outside another Carrefour location in Rio de Janeiro.

Discussion

How does the vetting process of new security personnel address the issue of racism and other discrimination?

How can the recruitment and training of private security personnel incorporate diversity, sensitivity, and inclusion concepts?

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

THE NISOUR SQUARE MASSACRE

Background

In 2002, U.S. president George W. Bush argued that the vulnerability of the United States following the September 11 attacks, in addition to Iraq’s alleged possession of weapons of mass destruction and support for terrorist groups, made disarming Iraq a national priority. Believing that Iraq continued to hinder UN inspections, President Bush issued an ultimatum to Saddam Hussein, giving Hussein 48 hours to leave Iraq.

When Hussein refused to leave Iraq, the United States launched an attack in March 2003, starting their military operation in Iraq. By May 2003, the Iraqi Army and intelligence services were disbanded.

During the Iraq War, tens of thousands of private security personnel carried out military functions on the ground. These services include protection of key facilities, protection for key leaders and individuals, and convoy escort, a particularly dangerous task given the prevalence of insurgents using roadside ambushes to attack.

Generally, contractors had a poor reputation in Iraq, with locals viewing them as aggressive, disrespectful, and unjustifiably violent. Contractors have used practices like driving convoys on the wrong side of the road, ramming civilian vehicles, and firing weapons as warnings.

Around 1,000 Blackwater contractors were used to guard diplomats in Iraq, amongst other tasks. A 2007 congressional report alleged that Blackwater was

involved in at least 195 shooting incidents in Iraq since 2003. Another report by the staff of committee chair, Representative Henry Waxman, alleged that in most instances, Blackwater fired first. Further, in 80% of the escalation of force incidents, Blackwater’s own reports document either casualties or property damage.

Four Blackwater security guards were killed in an ambush in Fallujah in 2004. In a civil wrongful death lawsuit filed by a relative of one of four men killed, it was alleged that the employees were sent on the mission without the proper equipment, training, or preparation. The day before the four contractors were killed, a Blackwater employee sent an email to supervisors, alerting them about the lack of general and safety equipment. The contract called for at least six men in armoured vehicles and time for a route risk assessment and planning, however, Blackwater rushed together the team of men who had never trained together. Blackwater and the family members settled the lawsuit in 2012.

The incident

On September 16, 2007, armed American trucks entered Nisour Square in Baghdad, Iraq. The Blackwater security guards, known as team Raven 23, were escorting a U.S. State Department convoy through Nisour Square. According to the Blackwater contractors, insurgents then ambushed the security guards, and the security guards believed that had come under fire by insurgents. Blackwater security personnel shot and killed 17 Iraqi citizens and wounded many others. During the 20-minute gunfight, Iraqi police and army forces stationed in watchtowers also began firing.

Legal Aspects

Court cases

The United States, through the Coalition Provisional Authority, had granted immunity from the Iraqi legal system to its military personnel and government contractors in Iraq, therefore the Blackwater contractors could not be prosecuted in Iraq.

In 2009, a judge threw out all of the charges related to the incident, citing “reckless” government behaviour. The indictment was dismissed because the prosecutors improperly relied on defendants´ compelled statements, which would have violated their constitutional rights, according to District Court Judge Ricardo M. Urbina.

In 2011, the District of Columbia Circuit Court of Appeals revived the litigation, holding that Judge Urbina misinterpreted the law.

Blackwater was legally and contractually bound to only engage in defensive uses of force to prevent “imminent and grave danger” to themselves or others.”

Ultimately, the case hinged on whether or not the defendants’ belief that they were under attack could be justified by limited evidence apparent to them at the time. Legally, their belief needed to be “reasonable” based on the circumstances. The jurors considered large amounts of evidence, including the act that other Blackwater employees had been hit by a roadside bomb elsewhere in the city the same day, and the fact that the vehicle occupants, a medical student and his mother, were shot and killed, so the car rolled forward automatically with no foot on the brake. Other relevant evidence included the fact that the Blackwater armoured vehicles appeared to have been damaged, but the victims appeared to be shot in the back while trying to flee the scene.

In 2014, four former Blackwater guards were convicted of different charges, including murder, manslaughter, and various weapons charges in relation to the Nisour Square incident. The guards were then immediately jailed.

The International Code of Conduct

The International Code of Conduct Preamble recognises that Private Security Companies and other” play “an important role in protecting state and non-state clients engaged in relief, recovery, and reconstruction efforts, commercial business operations, diplomacy and military activity. In providing these services, the activities of PSCs can have potentially positive and negative consequences for their clients, the local population in the area of operation, the general security environment, the enjoyment of human rights and the rule of law.”

In situations of armed conflicts, Member and Affiliate Companies must comply with International Humanitarian Law (paragraph 21).

The Code 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

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

Public Relations

After the public outcry, lawsuits, and investigations over the Nisour Square incident, Blackwater Worldwide rebranded by changing its name to “Xe” in 2009. Additionally, Blackwater Lodge and Training Center, the subsidiary that conducts much of the company’s domestic training, changed its name to U.S. Training Center Inc.

In 2009, it came to light that top Blackwater executives allegedly authorised about $1 million in payments to Iraqi officials to buy support and silence criticism of the firm.

In 2010, Eric Prince, the founder of Blackwater, reached a deal to sell the company to USTC Holdings. Under the agreement, Prince sold his state in the company, and Prince would no longer be involved in the management or operation of the company.

In 2011, Blackwater changed its name again, from Xe to Academi. The company’s president, Ted Wright, stated that the rebranding reflected the changes made in the company, including a “refocused strategy on training and security services.”

Investigations

Immediately after the Nisour Square incident, United States Secretary of Defense Robert Gates pressed all commanders to investigate and pursue any potential wrongdoing from the incident.

The State Department initiated oversight measures, including requiring cameras in PSC vehicles, recording transmission, and embedding State Department personnel with personal security details.

In 2009, Iraqi government leaders did not renew Blackwater’s licence to operate in Iraq, and the State Department also did not renew their contract with Blackwater to protect diplomats.

Settlements and Fines

Blackwater reached a settlement with the State Department in August 2010, agreeing to pay $42 million in fines over hundreds of violations of U.S. export control regulations.

The alleged violations included providing sniper training for Taiwanese police officers and illegal weapons exports to Afghanistan.

Discussion

What were the immediate and long term impacts of the Nissour Square massacre?

How can training and vetting of security personnel prevent situations where use of force was unnecessary?

Related incidents

Sources

Case prepared by Madison Zeeman

MIGRATION DETENTION RIOTS AT MANUS ISLAND

Background

Manus Island in Papua New Guinea was one of three offshore immigration detention centres used by Australia. Under Australia’s immigration policy, every immigrant arriving to Australia is to be detained and processed, with those found to be legitimate refugees allowed to resettle in Papua New Guinea or Cambodia.

Manus Island was originally opened to house asylum seekers who came to Australia by boat in 2001. Many asylum seekers started attempting the journey to Australia by sea, and more than 1,200 people drowned trying to get to Australia. In order to limit the amount of people arriving by boat to seek asylum, the policy was changed so that any asylum seeker arriving by boat would have no chance of being allowed to settle in Australia.

Since the opening of Manus Island, the centre has been criticised for high rates of depression and anxiety among detainees, under-sourced facilities and poor living conditions, and a lack of access for human rights organisations.

In an Australian Parliament, a senate committee recognized several factors that gave rise to the February 2014 riots, including the size and composition of the Manus Island centre; tension between asylum seekers and locals; the condition of the facilities at the centre; inadequate security infrastructure at the centre; and uncertainty about refugee status and resettlement arrangements.

Prior to the 2015 riots, it was reported that refugees believed their lives were endangered due to the Australian government’s plans to move detainees to Lorengau, the capital of Manus province. Refugees allegedly believed they would be attacked by local people if they moved to the capital; some refugees were so frightened that they refused to leave the centre.

The Incident

In February 2014, unrest at Manus Island resulted in 77 injuries, one by a gunshot, and one death from a head injury. There had been escalating protests at the centre for a few days, with the protestors breaking through fences a few days into the protest. Allegedly, on the first day of the demonstrations, refugees were hopeful that immigration authorities would tell them how much longer they would have to stay at Manus Islands. When they did not receive an answer to this question, a riot started the same night.

Immigration Minister Scott Morrison claimed that asylum seekers initially caused the disturbance and broke out of the centre, but refugee advocates and people inside the facility claimed that police and locals entered the compounds with weapons and attacked detainees. This caused asylum seekers to flee outside of the compound.

In January 2015, over 100 asylum seekers went on a hunger strike, protesting their treatment at the detention centre. A few days later, more asylum seekers joined the protest, while running water allegedly became unavailable at Manus Island. Local security guards went on strike after going unpaid.

After a few days, strikers started to collapse without food or water, with other strikers starting to consume harmful materials in protest. Around this time, riot police entered the detention centre. International Health and Medical Services (IHMS) staff converted the staff cafeteria into an emergency medical centre, treating over a hundred detainees.

The next day, multiple strikers were allegedly taken to the “Chauka” solitary confinement unit. In response, an urgent petition to the UN special rapporteurs on human rights was lodged overnight by refugee advocates. The same day, it was reported that security personnel started to round people up, attempting to end the protest. The next day, guards in riot gear allegedly entered Manus Island compounds, attempting to end the protest by force, taking alleged riot “ringleaders” into the Chauka isolation unit.

Legal Aspects

Court cases

After the riots, former G4S guards filed a lawsuit against the company and the government, alleging that the two parties were responsible for the failures related to the riots. Specifically, the former guards claimed that G4S and the government inadequately trained staff, and did not make personal protective equipment available to them. This, the guards alleged, resulted in their physical and mental harm.

Australia has a duty of care to asylum seekers under Australian law, and may be vicariously liable for any breach of this duty.

In support of the former guards´ claims, emails were shown to the court that showed G4S´ requests for additional 100 security guards at the site, warning there was increasing awareness of the possibility of conflict.

In July 2021, the parents of asylum seeker Reza Barati sued the Australian government over his death during the February 2014 detention centre riots. It was alleged that Mr. Barati was beaten to death by guards and other workers. Specifically, court documents stated that Mr. Barati was returning to his room after gunshots were fired into his compound, when a Manus Island worker in a G4S uniform hit him from behind with a length of timber spiked with nails. Then, up to 10 men kicked him in the head.

Mr. Barati’s parents claimed that the Australian government’s negligence, in addition to G4S negligence, were to blame for Mr. Barati’s death. The Barati family alleged that tensions had increased in the six months leading up to the violent riots, and the number of detainees increased tenfold, with over 500 more detainees living at the centre than the amount the centre was built to house. Thus, Mr. Barati´s parents alleged that the government and G4S should have had notice of the likelihood of violent protests occuring, and that the parties should have ensured staff were properly trained and that the centre was equipped to deal with outbreaks of violence.

Earlier, two men were convicted for Mr. Barati’s death and sentenced for 10 years in jail by Papua New Guinea’s national court.

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

The Code states that Member and Affiliate Companies will only, and require their personnel to treat all detained persons humanely and consistent with their status and protections under applicable human rights law and international humanitarian law, including prohibitions on cruel, inhuman, or degrading treatment or punishment (paragraph 33).

Impact

Investigations

In an Australian Parliament report, a Senate Committee stated that the factors giving rise to the February 2014 incident should have been known to Australia and the contracts managing the centre. The committee concluded that the Australian government therefore failed in its duty to protect asylum seekers from harm.

The Report found that many G4S staff continued to defend asylum seekers at great risk to their own safety during the riots, however, the Report recognized that many G4S staff and local residents used excessive force with the asylum seekers, or were involved in violence against the asylum seekers.

The Report concluded that asylum seekers suffered numerous violations of basic human rights during the February 2014 riots, including the right to life and the right to security of person.

Settlements and Fines

By September 2022, fifteen former employees of G4S reached a confidential settlement totalling millions of dollars with G4S and the Australian Government.

In October 2021, Australia ended offshore immigration processing on Papua New Guinea. The Manus Island centre was found to be illegal and ordered shut by the Papua New Guinea Supreme Court in 2016, and Australia was forced to pay $70m in compensation to those unlawfully detained. Those still detained in Papua New Guinea were allowed to transfer to the Nauru processing centre, otherwise they were offered a “permanent migration pathway … including access to citizenship, long-term support, settlement packages and family reunification”.

Discussion

The Australian parliament, in a report, determined that the factors giving rise to the incidents should have been known to the Manus Island managing personnel. How can private security companies and their personnel be aware of and address risks of violence and conflict?

What are the specific responsibilities of private security personnel when engaging in dealing with people in vulnerable situations such as detained migrants?

Related incidents

Sources

Case prepared by Madison Zeeman