Archives des Règles de Recours à la Force (Paragraphe 29 du Code) - Page 2 sur 2 - ICoCA - International Code of Conduct Association

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

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

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.

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

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

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

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

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