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PMSC and Trafficking: Room for Improvement

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One of the unpleasant aspects of the private military and contracting world concerns the way employees, especially Third World country nationals, are sometimes treated. Note that I wrote "sometimes." What I am about to write about does not reflect the actions of the majority of contractors but it happens enough to warrant continuing concern.

What I am specifically talking about is "trafficking in persons"; something done both by contractors and regular military forces. Over the past decade, Congress passed legislation to address its concern regarding allegations of contractor and U.S. Forces' involvement in sexual slavery, human trafficking, and debt bondage.

Prior to 2000, allegations of sexual slavery, sex with minors, and human trafficking involving U.S. contractors (as in Dyncorp) in Bosnia and Herzegovina led to administrative and criminal investigations by U.S. Government agencies. In 2002, a local television news program aired a report alleging that women trafficked from the Philippines, Russia, and Eastern Europe were forced into prostitution in bars in South Korea frequented by U.S. military personnel, which resulted in an investigation and changes to DoD policy. In 2004, official reports chronicled allegations of forced labor and debt bondage against U.S. contractors in Iraq. Needless to say these incidents were contrary to U.S. Government policy regarding official conduct.

In 2000, the president signed into law two statutes responding in part to identified contractor and U.S. Forces' misconduct in Bosnia and Herzegovina: Public Law 106-386 on October 28, and Public Law 106-523, "Military Extraterritorial Jurisdiction Act of 2000," on November 22.

The stated purposes of the first statute are "...to combat trafficking in persons [CTIP], a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims." The second statute established "Federal jurisdiction over offenses committed outside the United States by persons employed by or accompanying the Armed Forces, or by members of the Armed Forces who are released or separated from active duty prior to being identified and prosecuted for the commission of such offenses." Congress specifically extended this extraterritorial jurisdiction over trafficking in persons (TIP) offenses committed by persons employed by or accompanying the Federal Government outside the United States in Public Law 109-164, "Trafficking Victims Protection Reauthorization Act Of 2005," January 10, 2006.

Additional reauthorizations expanded the scope and applicability of the first statute. Public Law 108-193, the "Trafficking Victims Protection Reauthorization Act of 2003," December 19, 2003, gave the Government the added authority to terminate grants, contracts, or cooperative agreements for TIP-related violations. That law says:

The President shall ensure that any grant, contract, or cooperative agreement provided or entered into by a Federal department or agency under which funds are to be provided to a private entity, in whole or in part, shall include a condition that authorizes the department or agency to terminate the grant, contract, or cooperative agreement, without penalty, if the grantee or any subgrantee, or the contractor or any subcontractor (i) engages in severe forms of trafficking in persons or has procured a commercial sex act during the period of time that the grant, contract, or cooperative agreement is in effect, or (ii) uses forced labor in the performance of the grant, contract, or cooperative agreement.

In 2006, the Civilian Agency Acquisition Council and the Defense Acquisition Council agreed on an interim rule implementing the above stated requirement, adding Federal Acquisition Regulation Subpart 22.17, "Combating Trafficking in Persons."

There are other regulations and laws on the subject but the above should suffice to demonstrate the U.S. government recognizes this is a serious issue. To their credit many, even perhaps most PMSC, do as well. For example, the International Code of Conduct for Private Security Providers, signed last November, has, a section that says:

Signatory Companies will not, and will require their Personnel not to, engage in trafficking in persons. Signatory Companies will, and will require their Personnel to, remain vigilant for all instances of trafficking in persons and, where discovered, report such instances to Competent Authorities. For the purposes of this Code, human trafficking is the recruitment, harbouring, transportation, provision, or obtaining of a person for (1) a commercial sex act induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age; or (2) labour or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, debt bondage, or slavery.

While the sex aspect gets people attention it is the second part, "labour or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, debt bondage, or slavery" which is the more common offense. Try searching online for "TCN (stands for Third Country National] trafficking AND Iraq" and you'll see what I mean.

So with that as background how well are both governmental personnel and contractors doing in policing themselves in this area? They could be doing better, according to a new report from the Department of Defense Inspector General. It found:

• While three quarters of the contracts sampled contained a Combating Trafficking in Persons clause, only little more than half had the required Federal Acquisition Regulation clause.
• DoD contracting offices lack an effective process for obtaining information pertaining to trafficking in persons violations within the DoD.

On the plus side:

• DoD and other Federal law enforcement organizations were developing procedures to identify trafficking in persons incidents in criminal investigative databases.

• Several organizations demonstrated Combating Trafficking in Persons awareness and quality assurance best practices.

The Federal Acquisition Regulation (FAR) requires that all Federal solicitations and contracts contain clause 52.222-50, "Combating Trafficking in Persons," (CTIP) or the clause with Alternate I modification for contracts with performance outside the U.S. The team reviewed 368 DoD service or construction contracts for work in the Republic of Iraq, the Islamic Republic of Afghanistan, the State of Kuwait, the State of Qatar, and the Kingdom of Bahrain awarded in FYs 2009 and 2010.

The report found 53 percent of the contracts (195 of 368) contained a proper version of the mandatory FAR CTIP clause, and 26 percent of the contracts (95 of 368) contained an incorrect citation. 21 percent of the contracts (78 of 368) did not contain any form of the FAR clause.

Noncompliance with the requirement to include the CTIP clause in contracts has two negative effects. First, contractors remain unaware of the U.S. Government's "zero tolerance" policy and self-reporting requirements regarding CTIP. Second, contracting offices were potentially unable to apply applicable remedies to correct contractor violations when the CTIP clause was not properly present. The number of contracts without any form of a CTIP clause indicates that additional effort is still necessary to ensure compliance.