The State Department’s Office to Monitor and Combat
Trafficking in Persons—along with other State Department officials in South Asia and the Middle East, and the Department of Defense—will investigate “alleged abuses of workers who are part of an undocumented pipeline used to deliver thousands of Asians to labor on U.S. military bases in Iraq.”
[1]The investigation was in part spurred by an October Chicago Tribune series titled “Pipeline to Peril.”
[2] In that series, the deaths of 12 workers who had been trafficked from Nepal to Iraq “raised a specific alarm because it detailed alleged abuses involving contractors and subcontractors ‘employed directly or indirectly by the U.S. government’ at American facilities in Iraq under a multibillion-dollar privatization contract.”
[3] The allegations focus on subcontractors of KBR.
[4]The 12 men which were the focus of the
Tribune’s report had been told they were going to work at a five-star hotel in Amman, but they were kidnapped and ultimately changed hands four times before landing in an unprotected convoy, where they were killed by militants.
[5] Their families assumed huge debts to “pay fees demanded by brokers in their home countries” and the brokers “routinely seized worker’s passports, deceived them about their safety or contract terms and … allegedly tried to force terrified men into the war zone from a neighboring country under the threat of cutting off their food and water.”
[6]The investigation has 3 layers.
The first is the human trafficking for labor statute,
18 U.S.C. § 1590, which states that it is a crime for a person to knowingly recruit, harbor, transport, provide, or obtain by any means, any person for labor or services in violation of any of the peonage and slavery statutes.
[7] A relevant statute is
18 U.S.C. § 1589, which prohibits a person from knowingly providing or obtaining the labor or services of a person by threats of serious harm to that person, or by means of any scheme that is intended to make the person believe that serious harm would be exacted against him. If death results from the violation of either statute, the punishment can be up to life in prison.
The second layer is whether the United States has
jurisdiction over the alleged activity. There are no jurisdictional statements in these statutes, so some sort of extraterritorial jurisdiction must be established. Under universal jurisdiction principles, as described by the Restatement (Third) of Foreign Relations Law of the United States § 404 (1987), the United States could claim universal jurisdiction over acts constituting the slave trade. However, another jurisdictional statute may provide jurisdiction over the activities, subject to the third layer of the investigation. The Military Extraterritorial Jurisdiction Act of 2000 [hereinafter MEJA]
[8] provides that any person who is employed by or accompanies the Armed Forces outside the United States, and who “engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged with the special maritime and territorial jurisdiction of the United States,” will be punished as provided for that offense.
[9] This is similar to the extraterritorial jurisdiction law that was recently passed concerning human trafficking, which we discussed a couple of
weeks ago, but that law would not apply to the alleged conduct in “Pipeline to Peril” because those activities occurred before the creation of the statute. However, since human trafficking is an offense punishable by more than one year of prison, MEJA could apply to the alleged subcontractor activity, provided the third layer is accounted for.
Prosecutors would have to demonstrate that KBR’s subcontractors are employed by the United States’ Armed Forces for MEJA to apply. KBR uses more than 200 subcontractors, “many based in the Middle East, to carry out the military support contract.”
[10] While KBR and its parent company, Halliburton, “left virtually every facet of the recruitment, hiring and mobilization of such workers in the hands of its workers,” which means that some sort of control will have to be shown that will establish that the subcontractors are responsible for the alleged abuses, and that they were employed by the Armed Forces.
[1] Cam Simpson, U.S. to Probe Claims of Human Trafficking, Chicago Tribune, Jan. 19, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] 18 U.S.C. § 1581 et seq.
[8] Pub. L. 106-523 § 2(a), 114 Stat. 2488 (codified at 18 U.S.C. § 3261 et seq).
[9] 18 U.S.C. § 3261(a).
[10] Simpson, supra note 1.
