Iraq Archives - ICoCA - International Code of Conduct Association

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

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

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.

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

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.

NEPALI CONTRACTORS KILLED IN IRAQ

Background

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

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

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

The Incident

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

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

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

Legal Aspects

Adhikari v. Kellogg Brown and Root, Inc.

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

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

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

The International Code of Conduct

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

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

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

Resources on Human Trafficking

Resources on the Prohibition of Slavery and Forced Labour

Impact

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

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

Discussion

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

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

Related incidents

Sources

Case prepared by Madison Zeeman

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