Baghdad bound: Forced labor of third-country nationals in Iraq

Rutgers Law Review

Volumn 60, Issue 3, 2008, Pages 737-767

  Brown, Amy Kathryn ^a  

^a Lewis and Clark Law School

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EID: 54149110550     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (230)

1. KEVIN BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY 6 (2d ed. 2004).
2. Cam Simpson, Iraq War Contractors Ordered to End Abuses, CHICAGO TRIB., Apr. 24, 2006, at 1.
3. Id. For documentary footage of the appalling working conditions faced by third-country nationals (TCNs) in Iraq, particularly in equipment convoys, see also THE WAR TAPES (SenArt Films 2006). While U.S. military vehicles commonly lack protective armor, TCNs' trucks often lack even windshields. See id.
4. See Press Release, Halliburton Company, Halliburton Completes Separation of KBR (Apr. 5, 2007), available at http://www.halliburton. com/default/main/halliburton/eng/news/source_files/news.jsp?newsurl=/default/ main/halliburton/eng/news/source_files/press_release/2007/corpnws_040507a.html (announcing KBR is no longer part of Halliburton).
5. Cam Simpson, Rescue Spares Some Workers: 'They Told Us That We Had to Go to Iraq', CHICAGO TRIB., Oct. 10, 2005, at 9.
6. Id. One of the Nepalese workers explained: "[Kuwaiti supervisors] told us that we could not return to Nepal . . . because we did not have the ticket and passport, or any money." Id.
7. Id.
8. Simpson, supra note 2.
9. See id. Some U.S. contract workers claim their employers retaliated against them for protesting the substandard working conditions of TCNs with whom they worked in Iraq. Ryan Clark, Iraq: Work Cut Short After Complaining About Abuse of Third-Country Workers, CINCINNATI ENQUIRER, OCT. 13, 2005, available at http://www.corpwatch.org/article.php?id=12689.
10. See Elise Labott, Probe into Iraq Trafficking Claims, CNN.COM, May 5, 2004, http://edition.cnn.com/2004/US/05/05/iraq.india. trafficking/. Reports of the human trafficking of TCNs in Iraq began to surface in May 2004 when Indian workers claimed they signed employment contracts to work in Kuwait, but were forced to work in Iraq. See id.
11. Simpson, supra note 2.
12. OFFICE TO MONITOR & COMBAT TRAFFICKING IN PERSONS, U.S. DEP'T OF STATE, TRAFFICKING IN PERSONS REPORT 19 (2006), available at http://www.state.gov/documents/organization/66086.pdf [hereinafter 2006 TRAFFICKING REPORT]. The report described the problem as follows: A recent DOD investigation, prompted by late 2005 media allegations of labor trafficking in Iraq, identified a number of abuses, some of them considered widespread, committed by DOD contractors or subcontractors of third country national (TCN) workers in Iraq. Some of these abuses are indicative of trafficking in persons, and include: illegal confiscation of TCNs' passports; deceptive hiring practices and excessive recruitment fees; substandard living conditions; and circumvention of Iraqi immigration procedures. The TCNs are largely low-skilled workers from Nepal, India, Pakistan, Bangladesh, Sri Lanka, and the Philippines. Id.
13. Cam Simpson, U.S. Stalls on Human Trafficking: Pentagon Has Yet to Ban Contractors from Using Forced Labor, CHICAGO TRIB., Dec. 27, 2005, at 1.
14. See 2006 TRAFFICKING REPORT, supra note 12, at 19.
15. Simpson, supra note 13.
16. 2006 TRAFFICKING REPORT, supra note 12, at 19.
17. Simpson, supra note 2.
18. Simpson, supra note 13. Indeed, defense contractor lobbyists rejected any "requirement that says you have to flow this through to everybody" and instead pushed for a provision that would only require contractors to report subcontractors who refused to sign antitrafficking contact clauses. Id.
19. Cam Simpson, U.S. Tax Dollars Tied to Human Trafficking, Report Alleges, CHICAGO TRIB., June 6, 2006, at 8. The Kuwaiti firm implicated in the Nepalese worker scandal holds a reconstruction contract with the Department of State, not the DoD. Id.
20. BALES, supra note 1, at 8-9. Bales places his own best estimate at 27 million. Id.
21. Id. at 9.
22. See id. at 6-33.
23. Id. at 10. Other scholars assert that slavery has existed within ethnic groups and in numerous forms for centuries and that limiting the idea of slavery to the prevailing Western concept of racial domination makes it more difficult to identify and eradicate. See ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE STUDY, at viii (1982);
24. A. Yasmine Rassam, Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law, 39 VA. J. INT'L L. 303, 317-20 (1999).
25. BALES, supra note 1, at 10.
26. Id. at 10-12.
27. Id. Bales insists that "ownership" is no longer a relevant term because slavery is prohibited throughout the world and slaveholders no longer have any legal rights or obligations to the slaves they control. Id. at 5. In fact, Bales argues that the lack of any legally recognized relationship works to the benefit of the slaveholders, who enjoy "total control without any responsibility for what they own." Id.
28. Id. at 14-15.
29. Id. at 14.
30. Id. at 15.
31. Id. at 14-19. See also KEVIN BALES, TESTING A THEORY OF MODERN SLAVERY 9 (2006), http://www.yale.edu/glc/events/cbss/Bales.pdf.
32. BALES, supra note 1, at 17.
33. Id. at 10-11.
34. Id. at 15.
35. Id. at 29-31.
36. PATTERSON, supra note 23, at 7-8.
37. Id. Indeed, some scholars believe that social science theories are more effective than legal theories in recognizing and explaining the ever-adapting practices of modern slavery. See, e.g., KEVIN BALES, UNDERSTANDING GLOBAL SLAVERY 54-55 (2005). Social scientists also stress that ascribing moral judgments such as "evil" to modern slavery does not help to combat it, because blanket moral judgments do not allow for any meaningful intervention. Id. at 24-39. Calling a slaveholder evil also precludes any understanding of the root causes of modern slavery, which are largely economic in nature. Id. at 25. As Bales remarks, "Almost all the actual slaveholders I have met and interviewed were family men who thought of themselves as businessmen. Pillars of the local community, they were well integrated socially, well connected legally and politically, and well rewarded financially." Id.
38. BALES, supra note 1, at 19-20. This Note does not address the equally insidious practice of sex slavery. For an overview of sex slavery and the law, see BALES, supra note 36, at 65-68.
39. BALES, supra note 1, at 19.
40. See id. at 19. For a modern survey of chattel slavery throughout the world, see generally ROGER SAWYER, SLAVERY IN THE TWENTIETH CENTURY 12-31 (1986).
41. See BALES, supra note 1, at 19; see also Simpson, supra note 2, at 1.
42. BALES, supra note 1, at 19-20.
43. See id.
44. See id. at 155-56.
45. See id. at 157.
46. See id. at 158.
47. Id. at 159.
48. See id. at 20, 26.
49. Id. at 20. Contract slavery is the "most rapidly growing form of slavery" and is "most often found in Southeast Asia, Brazil, some Arab states, and some parts of the Indian subcontinent." Id.
50. Id. at 26.
51. See Simpson, supra note 2.
52. See William H. Meyer, Human Rights and MNCs: Theory Versus Quantitative Analysis, 18 HUM. RTS. Q. 369 (1996). Corporations that transact business on a global scale are also referred to as multinational enterprises and/or transnational corporations. See PETER MUCHLINSKI, MULTINATIONAL ENTERPRISES AND THE LAW 12-15 (1995).
53. Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon: An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations, 20 BERKELEY J. INT'L L. 91, 92 (2002).
54. Id.
55. Id.
56. Id.
57. Id. at 132-33.
58. Id. at 132.
59. See Tobias Barrington Wolff, The Thirteenth Amendment and Slavery in the Global Economy, 102 COLUM. L. REV. 973, 989-92 (2002).
60. See id. at 990-91; see also BALES, supra note 1, at 236.
61. See Sumana Chatterjee, Much of America's Sweets Made Possible Through Slave Labor on Ivory Coast, KNIGHT RIDDER NEWS SERV., June 25, 2001, available at http://www.globalexchange.org/campaigns/fairtrade/cocoa/knightRidder062501e. html. In response to negative media coverage and consumer pressure, the World Cocoa Foundation and the Chocolate Manufacturers Association signed a protocol committing themselves to the elimination of child labor in that industry. See generally CHOCOLATE MFRS. ASS'N, PROTOCOL FOR THE GROWING AND PROCESSING OF COCOA BEANS AND THEIR DERIVATIVE PRODUCTS IN A MANNER THAT COMPLIES WITH ILO CONVENTION 182 CONCERNING THE PROHIBITION AND IMMEDIATE ACTION FOR THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR (2001), http://www.cocoainitiative.org/images/ stories/pdf/harkin%20engel%20protocol.pdf.
62. See Ramasastry, supra note 52, at 132-33.
63. See id. at 133.
64. See Doe I v. Unocal Corp., 395 F.3d 932, 950-53 (9th Cir. 2002). The Ninth Circuit has not subsequently revisited the merits of this opinion, except to order that it carry no precedential weight. See Doe I v. Unocal Corp., 395 F.3d 978 (9th Cir. 2003) (granting rehearing en banc). After the parties settled, the Ninth Circuit dismissed the appeal and vacated the order of the court below. Doe I v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005), vacating Doe v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000).
65. Simpson, supra note 2.
66. Rebecca Rafferty Vernon, Battlefield Contractors: Facing the Tough Issues, 33 PUB. CONT. L.J. 369, 373 (2004).
67. K. Elizabeth Waits, Avoiding the "Legal Bermuda Triangle": The Military Extraterritorial Jurisdiction Act's Unprecedented Expansion of U.S. Criminal Jurisdiction over Foreign Nationals, 23 ARIZ. J. INT'L & COMP. L. 493, 498 (2006).
68. Id.
69. See id. at 500-04. In 2003, former Secretary of Defense Donald Rumsfeld, pushing for increased outsourcing of military jobs to private contractors, estimated that there were "something in the neighborhood of 300,000 men and women in uniform doing jobs that aren't for men and women in uniform." Anthony Bianco & Stephanie Anderson Forest, Outsourcing War, BUS. WK., Sept. 15, 2003, at 68. Military privatization is not an anomaly. The move to privatize traditionally public functions has become so much a part of our accepted economic and social landscape that military privatization is viewed as a natural and acceptable phenomenon. As Jon Michaels astutely asserts: [A]lthough these contracts and the harms that may accompany them are worrisome from an array of policy perspectives, conceptually speaking they are unremarkable: Driven by the same market-efficiency impulses that motivate the outsourcing of sanitation, catering, and even prison management responsibilities, the contracts to rebuild roads and schools in failed states and to manufacture new weapons do not compel us to rethink our basic understandings of American privatization. Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 WASH. U. L.Q. 1001, 1007 (2004).
70. Waits, supra note 66, at 499.
71. PRATAP CHATTERJEE, IRAQ, INC.: A PROFITABLE OCCUPATION 41 (2004).
72. Id.
73. Id. Military support contracting is very lucrative for both U.S. contractor companies and their U.S. employees. While U.S. military personnel earned an average of $69,000 in 2000, U.S. contractor employees earned $108,000. Jason Peckenpaugh, Army Contractors Earn Higher Salaries, Study Finds, GOV'T EXECUTIVE, July 26, 2001, available at http://govexec.com/dailyfed/0701/072601p1.htm. The discrepancy is actually higher - the value of contractor benefits is not reflected in the estimated figure. Id.
74. CHATTERJEE, supra note 70, at 45-46.
75. Id. at 46.
76. See Waits, supra note 66, at 507-09.
77. P.W. Singer, War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law, 42 COLUM. J. TRANSNAT'L L. 521, 537 (2004).
78. Press Release, Human Rights Watch, Iraq: Pass New Law Ending Immunity for Contractors (Jan. 9, 2008), available at 2008 WLNR 466515.
79. Waits, supra note 66, at 505.
80. Id. at 493-94.
81. Id. at 494.
82. Pub. L. No. 106-523, 114 Stat. 2488 (codified as amended at 18 U.S.C. §§ 3261-3267 (2006)).
83. 18 U.S.C. § 3261 (2006).
84. See Letter from Martina E. Vandenberg, Jenner & Block LLP & Sarah E. Mendelson, Center for Strategic and International Studies, to Felisha Hitt, Department of Defense (Jan. 26, 2007), available at http://www.csis.org/images/stories/Russia%20and%20Eurasia/ 070126_russia_trafficking.pdf [hereinafter CSIS Letter].
85. Andre Verloy & Daniel Politi, Halliburton Contracts Balloon: Despite Being Under an Investigative Cloud, Company Gets $4.3 Billion in 2003, CTR. FOR PUB. INTEGRITY, Aug. 18, 2004, http://publicintegrity.org/wow/report.aspx?aid=366. In 2004, Halliburton held more than $11.4 billion in contracts for postwar projects in Iraq and Afghanistan. Id.
86. Simpson, supra note 2.
87. Id. TCN contract workers are paid far less than U.S. nationals for the same work. See CHATTERJEE, supra note 70, at 28. In turn, Iraqi citizens are paid even less, primarily because U.S. contractors "simply do not trust Iraqi workers." Id. This can create large disparities in wages, even among workers who are doing essentially the same job. See id.
88. Simpson, supra note 2.
89. Id.
90. See id.
91. See id.
92. Id.
93. Id.
94. Simpson, supra note 5.
95. Id.
96. Id.
97. See Simpson, supra note 2. One element of the DoD regulations will require "measurable, enforceable standards for living conditions (e.g., sanitation, health, safety, etc.) and establish 50 feet as the minimum acceptable square footage of personal living space per worker." Id.
98. Id.
99. See BALES, supra note 30, at 3-4.
100. See Gary Langer, Ebbing Hope in a Landscape of Loss Marks a National Survey of Iraq, ABC NEWS, Mar. 19, 2007, http://abcnews.go.com/images/US/1033a/Iraqpoll.pdf. In fact, seventy-four percent of Iraqi respondents now describe their own neighborhoods as unsafe (compared to thirty-six percent in 2005), while fifty-three percent reported death or injury of at least one family member or close friend. Id.
101. See 2006 TRAFFICKING REPORT, supra note 12, at 270.
102. Id.
103. Id. at 269-70. They also recognize that Iraqi women and children are being trafficked within Iraq as well as to other Middle Eastern countries to work as sex slaves. Id. at 269.
104. See id. at 270.
105. Id.
106. Id. at 270-71.
107. See CSIS Letter, supra note 83, at 2; see also Bassem Mroue & Quassim Abdul-Zahra, Watchdog: Corruption Has Cost Iraq $8 Billion, VIRGINIAN-PILOT, Apr. 5, 2007, at A6.
108. See CSIS Letter, supra note 83, at 2.
109. See Mroue & Abdul-Zahra, supra note 106; see also Bassem Mroue & Quassim Abdul-Zahra, Iraq Misused $8 Billion, National Watchdog Says, ST. LOUIS POST- DISPATCH, Apr. 5, 2007, at A8.
110. See Mroue & Abdul-Zahra, Iraq Misused $8 Billion, supra note 108.
111. See CHATTERJEE, supra note 70, at 28-37.
112. Griff Witte & Renae Merle, Reports Fault Oversight of Iraq Police Program, WASH. POST, Jan. 31, 2007, at D1.
113. See generally Wolff, supra note 58.
114. See generally id.
115. See Lea S. VanderVelde, The Labor Vision of the Thirteenth Amendment, 138 U. PA. L. REV. 437, 495 (1989).
116. Id.
117. See, e.g., James Gray Pope, Labor's Constitution of Freedom, 106 YALE L.J. 941, 963 (1997).
118. Wolff, supra note 58, at 981-82.
119. See id. at 982-83.
120. Id. at 981.
121. Id. at 982.
122. JACQUELINE JONES, THE DISPOSSESSED 107 (1992).
123. See Clyatt v. United States, 197 U.S. 207, 215-16 (1905) (holding that the Thirteenth Amendment prohibited voluntary peonage schemes); Bailey v. Alabama, 219 U.S. 219, 241 (1911) (holding that antifraud statutes aimed at compelling employment also violated the Thirteenth Amendment).
124. 197 U.S. 207 (1905).
125. Id. at 215.
126. See United States v. Booker, 655 F.2d 562, 565 (4th Cir. 1981).
127. See Maria L. Ontiveros, Immigrant Workers' Rights in a Post-Hoffman World -Organizing Around the Thirteenth Amendment, 18 GEO. IMMIGR. L.J. 651, 667-68 (2004).
128. Id. at 668.
129. Id. at 667-68.
130. 726 F.2d 1448, 1450 (9th Cir. 1984).
131. Id.
132. Id. at 1453-54.
133. Id. at 1451-52 (citations omitted).
134. See United States v. Shackney, 333 F.2d 475, 485-87 (2d Cir. 1964).
135. Id. at 476.
136. Id. at 477-79.
137. Id. at 478.
138. Id.
139. Id. at 486-87.
140. Id. at 486.
141. Id. Indeed, the court appeared more concerned that employers, despite the "highly reprehensible" treatment of their employees, "might be victimized by disgruntled employees able to convince prosecutors, and ultimately juries, of their story." Id. at 487.
142. See United States v. Kozminski, 487 U.S. 931 (1988).
143. See id. at 944.
144. See Bo Cooper, A New Approach to Protection and Law Enforcement Under the Victims of Trafficking and Violence Protection Act, 51 EMORY L.J. 1041, 1049 (2002).
145. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified in scattered sections of titles 8 U.S.C, 22 U.S.C., and 42 U.S.C).
146. Id. § 102(b)(13), 114 Stat. at 1467.
147. See id. § 107(a), (b)(1)(D), 114 Stat, at 1474-75.
148. See id. §§ 110-111, 114 Stat, at 1482-86 (providing for actions against foreign governments and foreign persons only).
149. See id. § 110, 114 Stat. at 1482-84.
150. See id.; see also 2006 TRAFFICKING REPORT, supra note 12, at 270 (stating that antitrafficking training for new security officers has been replaced by counter-insurgency training).
151. See generally Wolff, supra note 58 (proposing the translation of the Thirteenth Amendment's core principles into the global economic environment).
152. See id. at 994-1031 (reviewing historical and legal developments related to forced labor in America).
153. See Clyatt v. United States, 197 U.S. 207, 218 (1905) (holding that the Thirteenth Amendment prohibited voluntary peonage schemes); Bailey v. Alabama, 219 U.S. 219, 240-45 (1911) (holding that antifraud statutes aimed at compelling employment also violated the Thirteenth Amendment). The Court was willing to look beyond mere words to analyze these laws for their real impact - i.e., virtual enslavement. Id.
154. Pollock v. Williams, 322 U.S. 4 (1944).
155. Id. at 18.
156. See generally Wolff, supra note 58, at 994-1031.
157. See id. at 979.
158. Id. at 978.
159. 28 U.S.C. § 1350 (2006).
160. Id. (enacted in the Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 77).
161. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
162. See id. at 880-89.
163. Id. at 878-79.
164. See id. at 880.
165. Id. at 883-85.
166. See id. at 884-85.
167. 395 F.3d 932 (9th Cir. 2002).
168. See id. at 942-46 (explaining that state court jurisdiction is appropriate in the presence of personal jurisdiction, violations of foreign law, and similar forum policies).
169. Id. at 936-37.
170. See id. at 939-44.
171. See id. at 937-42. Indeed, the court found evidence to the contrary to be overwhelming on these two points. See id.
172. Id. at 945 (emphasis added).
173. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984).
174. Unocal, 395 F.3d at 945 (citing Tel-Oren, 726 F.2d at 794-95 (Edwards, J., concurring)).
175. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
176. Unocal, 395 F.3d at 945-46 (citing Kadic, 70 F.3d at 242-43).
177. Id. at 946-47.
178. U.S. CONST. amend. XIII, § 1.
179. This section of the statute, entitled "Enticement into Slavery," reads: Whoever kidnaps or carries away any other person, with the intent that such other person be sold into involuntary servitude, or held as a slave; or Whoever entices, persuades, or induces any other person to go on board any vessel or to any other place with the intent that he may be made or held as a slave, or sent out of the country to be so made or held - Shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section . . . the defendant shall be fined under this title or imprisoned for any term of years or life, or both.
180. U.S.C. § 1583 (2006); see also United States v. Booker, 655 F.2d 562, 565 (4th Cir. 1981).
181. Unocal, 395 F.3d at 946 (emphasis and omission in original) (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 794-95 (D.C. Cir. 1984) (Edwards, J., concurring)).
182. Id. at 947.
183. Id. at 949-50.
184. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Dec. 10, 1998) (holding torture is a jus cogens violation over which nations have universal jurisdiction for prosecution).
185. Unocal, 395 F.3d at 951 (emphasis added).
186. Id. at 952.
187. Id.
188. Id.
189. Id.
190. Id.
191. Id. at 953.
192. Id. (alterations and emphases in original).
193. Id.
194. Id. (citing Doe/Roe II v. Unocal Corp., 110 F. Supp. 2d 1294, 1310 (C.D. Cal. 2000)).
195. Id.
196. See id.
197. Id. at 947, 951.
198. Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002).
199. See supra text accompanying note 183.
200. See Unocal, 395 F.3d at 952-53.
201. Id.
202. See id.
203. Simpson, supra note 2.
204. See Unocal, 395 F.3d at 937-39.
205. Indeed, the insurgency, stemming largely from the U.S. invasion and continued occupation of Iraq, has thwarted Iraqi efforts to prevent - or even assess - the scope of its human trafficking problem. See 2006 TRAFFICKING REPORT, supra note 12, at 269-70. Furthermore, U.S. involvement in Iraq has had the result of creating markets for human trafficking and forced labor in the private security and reconstruction industries in that country. See Simpson, supra note 2.
206. See Unocal, 395 F.3d at 952-53.
207. See id.
208. Id. at 953 (requiring "actual or constructive (i.e., reasonable) knowledge").
209. See id. at 939-41.
210. See supra note 10 and accompanying text.
211. See Simpson, supra note 13. For example, "[DynCorp] fired eight employees for their alleged involvement in sex trafficking and illegal arms deals." Id.
212. See supra notes 179-95 and accompanying text.
213. 18 U.S.C. §§ 3261-3267 (2006).
214. See Waits, supra note 66, at 493-95.
215. See id. at 494.
216. Id. at 518.
217. Id.
218. See id. at 520-30.
219. See id. at 530-34.
220. See Simpson, supra note 2. The DoD explained that "passports are seized, in part, to keep workers from accepting jobs with other firms." Id.
221. See id. (emphasis added).
222. Id.
223. See id.
224. See Simpson, supra note 13. Indeed, defense contractor lobbyists rejected any "requirement that says you have to flow this through to everybody" and instead pushed for a provision that would only require contractors to report subcontractors who refused to sign antitrafficking contact clauses. Id.
225. See Simpson, supra note 19.
226. Simpson, supra note 2.
227. See id.
228. See Singer, supra note 76, at 543 (arguing that the market, left alone, will be insufficient to regulate private armies); Phillip Carter, How to Discipline Private Contractors, SLATE, May 4, 2004, http://slate.msn.com/id/2099954.
229. See Waits, supra note 66, at 537-38.
230. See id.