Archives des Politiques d'Entreprise et Contrats de Travail (Paragraphes 52-54 du Code) - ICoCA - International Code of Conduct Association

US STATE DEPARTMENT MAKING ICoCA CERTIFICATION MANDATORY FOR SECURITY PROVIDERS

Background

The Worldwide Protective Services (WPS) programme comes under the US Department of State’s (DOS) Bureau of Diplomatic Security and is responsible for contracting armed bodyguards and security personnel to safeguard American diplomatic personnel globally. This includes a blend of personal protection (bodyguards), static guarding (facilities and checkpoints) and team-based emergency response security services.

The rationale behind the use of private security companies by the US State Department in its missions abroad can be traced back to the bombing of the US Embassy in Beirut in 1983. This led to the passing of the Diplomatic Security and Anti-terrorism Act of 1986, under which private companies could compete for security contracts for US missions overseas. The first contracted private security by the US State Department was in 1994, during the period of unrest in Haiti. The first iteration of the Worldwide Personal Protective Service (WPPS) contract was in 2000 when DynCorp was contracted to provide services in former Yugoslavia.

The war in Iraq witnessed an increase in the use of PMSCs by the US to handle what was once military tasks. What soon became apparent was the legal vacuum in holding these operators accountable for their criminal violations. As a result of cases of crimes committed by private security contractors (see Nisour square massacre in Baghdad and the DynCorp Bosnia case), attempts were made by Congress to ensure accountability for their actions.

One change that came about was the establishment of the Security Protective Specialist (SPS) programme by the Diplomatic Security. This meant directly hiring experienced protection personnel responsible for contractors who conducted high threat protection assignments on the WPPS program. Thus, the contemporary WPS contract has some very stringent provisions. These include, Diplomatic Security Special Agents supervising the security contractors and ensuring that their training aligns with the specified standards and that it is conducted by trainers approved by the agents. Contractors must undergo 164 hours of instruction and training approved by the Diplomatic Security prior to deployment. Deployment is limited only to those contractors who have successfully completed the training and met the required qualifications.

Good Practice

In 2013, the US State Department stated that the Bureau of Diplomatic Security (DS) would incorporate ICoCA membership as a requirement for the bidding process for the successor contract to the WPS programme provided that the ICoC process moves forward and attracts significant industry participation.

Since 2013, contractors to the WPS are required to provide a letter from ICoCA indicating that the applicant is a member or transitional member in good standing and has not been either suspended or terminated from the ICoCA. A tender placed in 2020 by the DOS for the WPS III contract (PSCs contracted for the third time under WPS programme between December 2021-2031) includes that if the bidding entity is acting as the prime contractor in a contractor team arrangement, then the letter should verify that all team members are active members of ICoCA, in good standing and compliant with the requirements of the American National Standards Institute , PSC-1-2012. If subcontractors are going to be engaged to deliver any security services under the contract, they too must be members in good standing of ICoCA. Furthermore, in 2014, during ICoCA’s General Assembly, the US Department of Defence informed it will recognise ICoCA membership as an indicator that companies comply with the Code during its procurement decisions.

Corporate Ethics

Prior to the 2013 ICoCA certification or affiliation requirement put in place by the US State Department, 2010-2017 WPS awardees included Triple Canopy Inc, Torres International, SOC LLC, International Development Solutions, Global Integrated Security, Acuity-Janus, Dyncorp International and Gardaworld Federal Services. Pursuant to not being ICoCA certified Members or Affiliates, Torres International, International Development Solutions, Global Integrated Security and Dyncorp International were not awarded renewed contracts.

For the 2016-2021 WPS II period, contractors included Aegis Defence Services LLC, Chenega Patriot Group LLC, Sallyport Global Holdings Inc., Triple Canopy Inc., SOC LLC, Gardaworld Federal Services LLC and Acuity-Janus Global LLC. Both Gardaworld, Aegis Defence Services LLC, SOC LLC, and Triple Canopy have been ICoCA members for more than five years and the certification was underway in 2017/18.

Acuity and Sallyport Global Holdings, however, have been ICoCA certified Members since 2022. Acuity halted its commercial services, selling off the profitable ones to Janus Global Operations Somalia which has been an ICoCA member since 2023 and includes more broadly Janus Global. Chenega Patriot Group LLC, although previously a member, is now no longer providing security services. Again, for WPS III, the same companies were contracted for the period starting from December 2021-2031. The listed PSCs were not ICoCA members when they were contracted under WPS II and beginning of III. Nevertheless, it is likely that the companies joined ICoCA to fulfil their contractual obligations. Thus, requiring ICoCA certification as part of State contracts encourages PSCs to become Certified members of Affiliate members of ICoCA.

The International Code of Conduct

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

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

Association of Member Companies

Disclaimer

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

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

Sources

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

REQUIREMENT FOR SWISS SECURITY COMPANIES OPERATING ABROAD TO JOIN ICoCA

Background

In the last decades Switzerland has been at the spearhead of the development of the international regulatory and governance framework of private military and security companies. It is under its leadership that the Montreux Document on Private Military and Security Companies and the International Code of Conduct for Private Security Companies (ICoC) were adopted, in 2008 and 2010 respectively. The Montreux Document affirms the legal obligations of States on the activities carried out by private military and security companies, while the ICoC focuses on the responsibilities of private security companies (PSCs) themselves under international human rights law and international humanitarian law. Switzerland has also been a participant in the Voluntary Principles on Security and Human Rights.

The Export Controls and Private Security Services Section within the Federal Department of Foreign Affairs participates in the international dialogue on domestic standards for private military and security companies. These discussions are held in various international organisations (UN, OSCE, etc.). Switzerland is also hosting the International Code of Conduct Association.

Regarding Switzerland’s own national policies on private security services, it regulates private security service providers’ activities within its borders at cantonal-level or through inter-cantonal policies. The Francophone cantons introduced the 1996 Concordat sur les Entreprises de Sécurité (CES). A similar policy was initiated by the German-speaking cantons in 2017 but failed to be adopted when several cantons opted instead for their own cantonal regulations.

Good Practice

In 2010, Switzerland’s Federal Council decided to adopt a federal legislation that sought to regulate PSCs headquartered in Switzerland. This led to the adoption of The Federal Act on Private Security Services Provided Abroad (PSSA) on 27 September 2013, enforcing measures to ensure the respect for human rights and international humanitarian law. The PSSA applies to Swiss-based PSCs whether they provide services within Switzerland or abroad. It also covers companies managed from Switzerland that offer security services overseas, as well as any individuals working for these Swiss-linked security firms, both domestically and internationally. The regulations extend to Swiss federal authorities that employ these private security providers. Thus, providing an authoritative framework for new company registration as well as creating a governance mechanism to ensure compliance with the rules.

The PSSA entered into force on 1 September 2015 and requires companies based in Switzerland providing security services abroad to be ICoCA certified. The legislation also serves as a pillar responsible for safeguarding human rights and respecting the rule of law, as it prohibits security companies from engaging in violations but also offering their services in contexts connected with serious breaches of human rights. Switzerland has shown that an interplay between domestic and foreign policies is important, as commitments to upholding human rights begins with translating international commitments into national frameworks.

Corporate Ethics

Overall, and as stipulated under Article 1, the PSSA aims to “safeguard Switzerland’s internal and external security, achieve Switzerland’s foreign policy objectives, preserve its neutrality and guarantee compliance with international law.” These regulations ensure that Swiss PSCs providing their services abroad are continuously supervised through mandatory declarations and review procedures, ensuring compliance with the Code of Conduct. Article 7 states that companies providing security services must accede to the International Code of Conduct for Private Security Providers. PSCs providing services abroad shall also provide proof of ICoC certification as emphasised under Article 10 (e) and be prohibited from carrying out services if they fail to comply with the provisions of the Code as stipulated under Article 14 §2 (c). Finally, Article 31 §1 (b) explains that the contracting authority must ensure the private security provider maintains a solid reputation and exemplary business practices by complying with the Code of Conduct.

Prior to 2015, one of Switzerland’s embassies in North Africa was responsible for a short mission in a neighbouring country classified as a complex environment. The KMZ, or Centre de Gestion des Crises, participated in the selection of an ICoCA-certified security company for assistance. Since increasingly more PSCs are joining ICoCA because of Switzerland’s PSSA requirement, it is becoming easier for Switzerland to work with ICoCA certified companies and fully comply with the provisions they set out in the Act.

The Federal Department of Foreign Affairs continues its advocacy efforts to encourage PSCs to join ICoCA Swiss representations are always advised to inform companies offering private security services that Switzerland works only with ICoCA members in all different environments, whether complex or not.

Association of Member Companies

The International Code of Conduct

Disclaimer

Sources

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

MAJOR BRAND COMMITS TO RESPECT LABOUR RIGHTS OF SECURITY GUARDS

Background

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

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

Good Practice

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

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

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

Corporate Ethics

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

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

The International Code of Conduct

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

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

Disclaimer

Sources

This case was prepared by Anyssa Boyer, 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