Uso de la Fuerza (Párrafos 30-32 del Código) archivos - Página 2 de 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

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

ASESINATO RACISTA POR GUARDIAS DE SUPERMERCADO

Contexto

En 1888, Brasil fue el último país del hemisferio occidental en abolir la esclavitud. En el momento de la abolición, la población de Brasil era mayoritariamente negra o mestiza hasta la década de 1930, cuando una afluencia de inmigrantes europeos llegó a Brasil en busca de mano de obra. Durante esta época, se utilizaron métodos pseudocientíficos antinegros para «demostrar» científicamente la superioridad biológica blanca. Estas teorías (claramente falsas) fueron ampliamente refutadas a mediados del siglo XX, pero se siguieron utilizando para propagar el racismo en las políticas sociales y políticas.

Hoy en día, estas políticas abiertamente racistas ya no existen, y la mayoría de los brasileños reconocen los prejuicios raciales y la discriminación que aún persisten en Brasil. Sin embargo, el análisis estadístico revela un trato dispar de los brasileños no blancos en múltiples ámbitos de la sociedad. Por ejemplo, de media, los brasileños no blancos ganan la mitad de ingresos que la población blanca de Brasil, y los brasileños negros tienen casi tres veces más probabilidades de ser víctimas de homicidio que los demás.

Mientras que los negros y mestizos representan alrededor del 57% de la población de Brasil, constituyen el 74% de las víctimas de violencia letal, y el 79% de los asesinados por la policía. En el ámbito empresarial, los brasileños negros ocupan menos del 5% de los puestos en los consejos de administración de las empresas. Por último, persiste la discriminación en forma de desaires, agresiones e insultos raciales.

El Incidente

El 19 de noviembre de 2020, en Porto Alegre, Brasil, una empleada de un supermercado Carrefour llamó a seguridad después de que un hombre supuestamente amenazara con agredirla. Las imágenes del incidente parecen mostrar que el hombre, João Alberto Silveira Freitas, recibió un puñetazo en la cara, y posteriormente un rodillazo, por parte de dos guardias de seguridad blancos, lo que le causó la muerte. Según el instituto forense estatal, la causa de la muerte fue la asfixia. Según la investigación preliminar, Freitas fue golpeado durante más de cinco minutos antes de morir.

Los transeúntes filmaron el incidente, que fue ampliamente compartido en las redes sociales. Otro empleado parecía estar junto a los guardias de seguridad, filmando el incidente.

Aspectos Jurídicos

Tareas de Supervisión

Según la investigadora de homicidios Vanessa Pitrez, la supervisora de Carrefour Adriana Alves Dutra tenía autoridad sobre los guardias, lo que implicaba el deber de impedir que golpearan a Freitas. Por lo tanto, según Pitrez, esta autoridad podría haber dado lugar a que Dutra fuera condenada por homicidio como coautora.

El Código Internacional de Conduct

El Código Internacional de Conducta exige que el personal de las empresas miembros y afiliadas tome todas las medidas razonables para evitar el uso de la fuerza, y si se utiliza la fuerza, debe ser proporcional a la amenaza y adecuada a la situación. (Normas sobre el Uso de la Fuerza : párrafo 29, Uso de la Fuerza : párrafos 30-32)

Recursos sobre el Use de la Fuerza (en inglés)

Al aprehender a personas, todas las personas aprehendidas deben recibir un trato humano y acorde con su condición y con la protección que les brindan las normas de derechos humanos o el derecho internacional humanitario aplicables, incluidas, en particular, las prohibiciones de la tortura u otros tratos o penas crueles, inhumanos o degradantes (párrafo 34).

Recursos para la Detención de Personas (en inglés)

Además, el Código Internacional de Conducta exige una rigurosa selección e investigación de antecedentes del personal, la evaluación de su desempeño y funciones (párrafos 45 a 49), y la formación del personal en el Código y el derecho internacional pertinente, incluidos los derechos humanos y el derecho penal internacional (párrafo 55). Cumplir los requisitos del Código de Conducta puede ayudar a las empresas de seguridad privada y a sus clientes a garantizar que el personal de seguridad privada está cualificado, formado, respaldado, informado y es responsable.

Impacto

Al día siguiente de la muerte de Freitas, Carrefour SA declaró que «lamentaba profundamente lo que calificaba de muerte brutal», e indicó que Carrefour SA tomaba medidas para garantizar que los responsables fueran castigados legalmente. Carrefour declaró que rescindiría el contrato con la empresa de seguridad, despediría al empleado encargado de la tienda en el momento del incidente y cerraría la tienda en señal de respeto.

Además, el Presidente y Director General de Carrefour, Alexandre Bompard, utilizó Twitter para declarar que Carrefour había tomado medidas internas en Brasil. Bompard pidió que se revisara la formación de los empleados y subcontratistas en materia de seguridad, diversidad y valores de tolerancia.

El supermercado Carrefour creó un fondo de 5 millones de dólares para combatir el racismo en Brasil, y declaró que los brasileños negros representarían al menos el 50% de las nuevas contrataciones anuales.

Demandas y Acuerdos

Poco después del incidente, el Estado brasileño demandó a Carrefour por 38 millones de dólares en concepto de daños y perjuicios por la muerte de Freitas. La demanda también pedía al tribunal el cierre de la tienda, «con el objetivo de reducir el riesgo de actos hostiles que pudieran producirse durante las protestas». Por último, la demanda exigía la creación de un plan de lucha contra el racismo y el trato discriminatorio por parte del minorista en Porto Alegre.

En junio de 2021, Carrefour llegó a un acuerdo con la Fiscalía Federal y otras partes para pagar 115 reales (22 millones de dólares estadounidenses). Este acuerdo puso fin a todos los pleitos relacionados con la aplicación y ejecución de medidas antirracistas contra la diversidad racial.

Precios de las Acciones

Tras la muerte de Freitas, Carrefour Brasil fue eliminada de un índice de empresas con las mejores políticas medioambientales, sociales y de gobernanza gestionado por S&P Dow Jones y B3. Apenas cuatro días después de la muerte de Freitas, el precio de las acciones de Carrefour Brasil se desplomó un 6% en las operaciones de la tarde.

Investigación Criminal

Finalmente, los dos hombres que presuntamente golpearon a Freitas fueron detenidos e investigados por homicidio, debido a la asfixia de la víctima y a su incapacidad para defenderse.

Protestas, Violencia y Daños Materiales

Al día siguiente de la muerte de Freitas, los manifestantes empezaron a repartir pegatinas con el logotipo de Carrefour manchado de sangre, pidieron el boicot de la cadena y mostraron carteles de «Black Lives Matter» (Las vidas de los negros importan). Esa misma noche, la protesta se tornó violenta y los manifestantes rompieron escaparates y vehículos de reparto. Los manifestantes asaltaron y destrozaron el supermercado donde se produjo el incidente, y 200 manifestantes se reunieron frente a otro establecimiento de Carrefour en Río de Janeiro.

Debate

¿Cómo se aborda la cuestión del racismo y otras formas de discriminación en el proceso de selección del nuevo personal de seguridad?

¿Cómo pueden la contratación y la formación del personal de seguridad privada incorporar conceptos de diversidad, sensibilidad e inclusión?

Incidentes Relacionados

Mina de Escobal: Violenta Represión de las Protestas Indígenas
Violenta Represión de Mineros Ilegales que Desemboca en Litigios
La Masacre de la Plaza Nisour
Represión de las Protestas contra la Mina de Río Blanco
Disturbios por la Detención de Inmigrantes en la Isla de Manus
Violencia y Agresiones Sexuales en las Granjas de Kakuzi

Fuentes

Caso preparado por 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).

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

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