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13. Since mid-2005, intermediary companies have been selecting Peruvians for two American private security companies, Triple Canopy[6] and MVM Inc.,[7] which were tasked with recruiting, training and sending them to the armed conflict zones of Iraq and Afghanistan. The exact number of Peruvians hired over approximately a year and a half is not known. Figures collated from various sources indicated that there were around 1,100 Peruvians in Iraq: 850 in Baghdad and 300 in Basra. MVM Inc. hired Peruvians for Afghanistan and Triple Canopy for Iraq.
14. MVM Inc. is an American company registered under Californian law. After winning a United States Government contract, it specialized in recruiting Peruvians to provide security services in Afghanistan. The selection process was contracted to 3D Global Solutions and was in turn subcontracted to an intermediary agency, G4S Wackenhut Peru. Following the death by hanging of Martín A. Jara Hichard at the American air base at Bagharam, Kabul, in as yet unexplained circumstances, MVM decided in December 2005 to cancel the contracts and send the 250 Peruvians working in Afghanistan back to Peru.
15. Triple Canopy is an American company registered in Illinois, with headquarters in Virginia, and describes itself as a client of the United States Government. After winning a contract with the Department of State in Iraq, Triple Canopy reportedly subcontracted the services of 3D Global Solutions [8] to select personnel. In its turn, 3D Global Solutions subcontracted Gesegur SAC, Gun Supply SA, G4S Wackenhut Peru SA and Defion Internacional SA. The Peruvian authorities made available information supplied by Defion Internacional stating that, in order to be finally recruited as “independent contractors” by Triple Canopy, those selected had to have military training to ensure they could defend themselves, and that this was stipulated as a requirement in a clause of the Defense Base Act insurance policy issued by the United States Department of State.
16. The brief given to candidates by all employment agencies was that they were going to work in Baghdad’s “Green Zone” [9] to protect the United States Embassy or private facilities in that country. However, the Working Group has received a copy of a complaint for breach of contract brought by five Peruvian guards hired by 3D Global Solutions [10] and who worked in Baghdad’s “Red Zone” for EOD Technology Inc., despite having been hired to work in the Green Zone.
17. None of the contracts signed by the Peruvians were submitted to the Ministry of Labour and Promotion of Employment as, since they were not going to be performed in Peru, they were not considered subject to Peruvian legislation. The Ministry of Labour said that it was only empowered to monitor work carried out in Peru, not abroad, even when Peruvian workers were involved. [11] The Ministry does not have a register of the companies that act as intermediaries for private security companies.
18. According to an executive of Defion Internacional, which operated in Peru for Triple Canopy, the contract of the “independent contractors” was with the United States Government. Mr. Mark Dewitt of Triple Canopy [12] stated that, in the case of the death of a Peruvian in Iraq, any insurance claim had to be lodged with the United States Department of State. The employment contract covered the insurance indirectly, provided the contracted person was in Baghdad’s Green Zone. [13] In the case of death or incapacity, the United States Labour Department is responsible for calculating the pension or total amount that the employee or their survivors should receive.
19. The Peruvian authorities have been in contact with the United States Department of State through the Peruvian Embassy in Washington, in order to establish the level of responsibility with respect to the physical safety and working conditions of the Peruvians in Afghanistan and Iraq. According to the Department of State, they were private contracts between the security companies and individuals, and similar contracts had been concluded in other countries, such as Chile and Colombia. It pointed out that the contractual conditions and place of recruitment and employment were internal decisions of Triple Canopy and did not require coordination with the United States Government. The Department of State suggested that the Peruvian Government should contact the headquarters of Triple Canopy directly. [14]
20. The degree of involvement of the companies that selected the Peruvians to work as “independent contractors” varies. Wackenhut del Perú (registered as G4S Perú S.A.), [15] carried out a single round of selection of 500 Peruvians for 3D Global Solutions USA, in Indiana, which in turn had been subcontracted by Triple Canopy. According to its directors, Wackenhut merely selected personnel, between October 2005 and January 2006, verified that they met certain requirements and was paid for each selection. [16] The company could not supply information on how many of the 500 Peruvians selected were hired for Iraq; 3D Global Solutions had apparently been responsible for contacting applicants directly and assessing, training and hiring them.
21. Gesegur SAC (Peru) was contracted by 3D Global Solutions Inc. to select Peruvians on behalf of Triple Canopy. Despite repeated attempts, the Working Group did not manage to meet with Gesegur. [17] Defion Internacional acted as the sole representative of Triple Canopy in Peru, selecting Peruvians for Iraq and handling the logistical and administrative formalities for Triple Canopy (tickets, contracts, opening of bank accounts and airport transfers). Defion acted under the supervision of Triple Canopy as an intermediary company between the contracted persons and their families in Peru. Information supplied by that company [18] indicated that 1,130 Peruvians were providing services in Iraq for Triple Canopy Inc., and that 266 of them had been selected by Gesegur SAC and 864 by Defion Internacional. Defion said that two Peruvians had died and four had been injured. [19]
22. G4S Wackenhut is listed on Peru’s registers as an intermediary services company, on the Ministry of the Interior’s DICSCAMEC [20] register as one of 1,578 private security companies and on the register of the National Public Records Oversight Agency. Neither Gun Supply, Gesegur SAC, Defion Internacional, 3D Global Solutions, Triple Canopy Inc. nor MVM Inc., the companies that selected or hired Peruvians to go to Afghanistan or Iraq, were listed on the national register of companies and entities conducting labour intermediation activities in Peru, or on DICSCAMEC’s register. However, Defion Internacional SAC and Gesegur SAC were listed with the National Public Records Oversight Agency. There were also “ghost” companies, which rent premises, select personnel and then vanish. One such company is said to have hired 200 Peruvians who reportedly left via Chile to work in Baghdad’s Red Zone. [21]
23. Some Peruvians received military training at facilities belonging to Peru’s Army Arms and Ammunition Factory (FAME); others completed a theory course in Lima and military training in Amman, Jordan. A contract was concluded between Gun Supply SAC and FAME, under which FAME provided, for 500,000 nuevos soles, premises to house between 200 and 250 people, food, accommodation and 374,000 rounds of ammunition. [22] Gun Supply SAC trained the Peruvians to be recruited by Triple Canopy in FAME installations. At the request of a congressman, the Ministry of Defence conducted an investigation that revealed (a) that the Army had not evaluated the political and international implications when approving Triple Canopy Inc.’s proposal to use FAME premises to train Peruvians to serve the Government of the United States of America in its operations in Iraq; (b) that the Managing Director of FAME had contravened the law and the DICSCAMEC rules on the use of weapons of war and ammunition; (c) that Gun Supply SAC and the Higher Institute of Security and Applied Sciences, a private security company, had taught three courses to civilian students in FAME installations; and (d) that neither the Ministry of Foreign Affairs nor the Ministry of Defence had been informed of the contract and its purpose.
24. The results of the investigation and the sanctions imposed were sent to the Office of Provincial Criminal Prosecutor No. 4, specializing in official corruption. The Ministry of Defence has indicated that it is willing to provide all information required to ensure transparency and the protection and observance of the human rights of Peruvian nationals and that this type of situation will not occur in the future.
25. Defion Internacional SAC, in addition to selecting Peruvians to go to Iraq, apparently provided them with 80 hours of theory classes and 40 hours of firearm instruction.
26. The contracts concluded [23] by Peruvians with Triple Canopy Inc. pertain to activities relating to war operations in the context of the armed conflict in Afghanistan and Iraq. [24]
27. The contracts stipulate (a) that the “independent contractor” is not an employee of the company and is not entitled to any employment benefits or rights not specifically stipulated in the contract signed; (b) that the “independent contractor” shall provide a service in Iraq for a period of 12 months, at a daily rate of US$ 33 (as a simple guard); (c) that payment for such services shall be subject to three conditions: successful completion of training, the independent contractor’s availability to travel to the location of the mission, and security clearance for a moderate-risk position of public trust, or any other security clearance as may be applied by the Government of the United States. The company can terminate the contract at any time with immediate effect and without stating a reason, merely by notifying the “independent contractor” of its decision.
28. Article 7, on “Hazardous environment”, stipulates that “the independent contractor understands and recognizes that, in providing these services, he shall be exposed to many of the hazards of a high-risk environment, including but not limited to the extreme and unpredictable risks and hazards of war, and other more or less common risks. The independent contractor fully recognizes that the provision of services is intrinsically dangerous, and might result in death or personal injury to himself or other persons, or damage to personal property”. According to article 8, the independent contractor “voluntarily, freely, and knowingly accepts each and every risk known and unknown, in any way related to the general training, the provision of services or travel to and from, or residence in, each mission location.”
29. In article 12, the independent contractor accepts a disclaimer exonerating the company and the client and their corporate subsidiaries, executives, and so on, from liability even if the harm was caused or generated by the company. All clauses of the contract are legally binding on the independent contractor’s heirs.
30. Three of the clauses entail the renunciation of important rights. Article 14 on Applicable law and jurisdiction, stipulates that the contract shall be governed by the laws of the State of Virginia, United States of America. Article 15 states that the authentic text of the contract is the English version. Under the final clause, the independent contractor “renounces some of his legal rights”.
31. The contract constitutes an abuse of rights because it includes unfair clauses that are incompatible with the principles of legality and equality. It imposes inequalities and objective limitations on the independent contractor and compels him to renounce some of his rights, while the hiring party states that it has another contract with the Government of the United States. To define these people as security guards in an armed conflict zone could be interpreted as deception. The National Human Rights Coordinating Committee is of the view that the contracts contain a series of clauses that violate the country’s legal order, public policy and common decency.
32. As indicated above, there have been complaints of breach of contract from the Peruvians so hired. Five guards alleged that one of the companies had failed to pay them a portion of their wages and had forced them to work in Baghdad’s Red Zone. Other complainants described the lack of medical attention and overcrowding in barracks, working days of over 12 hours, with only 1 day off every 10 days worked, low-quality food, a feeling of constantly being watched, and being forced to tell their families that everything was fine. Many relatives have apparently not complained for fear of reprisals or of not receiving a bonus on completing the contract.
33. The most serious cases are those involving the deaths of Wilder F. Gutiérrez López and Martín Jara Hichard. Other deaths are said to have occurred, but relatives have apparently not reported them for fear of not being able to claim the insurance.
34. On 11 October 2005, Wilder F. Gutiérrez López signed a contract with Triple Canopy to work in Iraq as a security guard, having obtained a certificate of attendance on the second international course of the Higher Institute of Security and Applied Sciences and Gesegur. The Solidarity Hospital issued a certificate of good health, which was forwarded to 3D Global Solutions so that he could work with Triple Canopy. In Baghdad, he was diagnosed with acute leukaemia, was returned to Lima and on 5 December 2005 was admitted to the National Institute of Neoplastic Diseases, where he died the following day. His widow accuses the security company of concealing her husband’s illness from her and allowing him to travel without medical assistance. His widow and relatives cannot comprehend how a person in good health could have developed acute leukaemia in such a short time, unless there were external factors, such as radioactive materials, in the place he was working. Moreover, because the contract is governed by the laws of the State of Virginia, his widow is now caught up in a maze of procedures to enforce the provisions of the insurance policy.
35. Martín Jara Hichard, who died in circumstances which are still unclear, signed a one-year contract with MVM Inc. on 7 October 2005. On 2 December 2005, Worldwide Assistance informed his relatives that he had died that day in Kabul from unknown causes, and offered to repatriate his body, cremated or embalmed. The Director of the Institute of Forensic Medicine, of the Public Prosecutor’s Office, decided that it was necessary to repatriate the body in its current state in order to establish the cause of death. Accordingly, the Provincial Criminal Prosecutor instructed the Secretary for Peruvian Communities Abroad to arrange to have the body transported as it was, together with the results of the autopsy carried out in Kabul. On 7 December 2005, 3D Global Solutions, the company that had selected Mr. Hichard, blamed the United States Department of State for failing to provide information about the circumstances and cause of death and pointed out that, as the contract had been concluded with MVM Inc., 3D Global Solutions was not liable. The body arrived as a package at the Lima Airport customs office, with a death certificate stating that cause of death unknown. The autopsy carried out by the Institute of Forensic Medicine in Lima on 25 December 2005 revealed that the cause of death was asphyxiation by hanging due to constriction to the neck. However, because the body was by now at the reconstitution stage it was not possible to determine the approximate time of death. The autopsy also showed that it was not possible to establish the medical and legal aetiology owing to the lack of information about the events leading up to the death, the scene-of-death investigation, the deceased’s medical history and any medical attention he might have received. On 23 February 2006, the consular section of the United States Embassy in Kabul certified that the cause of death was suicide.
36. The press has kept the Peruvian public informed of all these events. Through the Secretary for Peruvian Communities Abroad, the Ministry of Foreign Affairs met with the private security companies involved, the relatives, and the Ombudsman’s Office,[25] and contacted the Department of State in Washington. The Congress of Peru requested information on the matter and called in officials from the Ministries of Defence, Foreign Affairs and Labour. It was apparently also suggested that Peru’s National Security Council might ask the United States Government to inspect the living conditions of Peruvians working as “independent contractors” in Iraq and Afghanistan.
37. In a context of a globalized world economy and the privatization of public services, departments of the United States Government, such as the Pentagon and the Department of State, have contracted private security companies to provide protection in armed conflict zones such as Afghanistan and Iraq. [26] The companies that have won a contract with the United States Government have in their turn set up or subcontracted companies registered in the United States or abroad. In Peru, where there is unemployment, these intermediary companies (some of them “ghost” companies that later vanished) have selected ex-members of the military and the police with at least two years’ military experience, who would ultimately be recruited by a transnational private security company.
38. In this maze it is impossible to determine liability and accountability. The United States Government says that these were “private contracts between companies and individuals”. The intermediary companies say they merely selected personnel on the basis of criteria provided by the contracting companies. When asked for information regarding the purpose, objectives and number of contracts concluded and the Peruvians who travelled to armed conflict zones, [27] they reply that they are unable to provide precise and explicit information on such matters. If the Peruvian authorities ask to see the contract concluded between the intermediary companies and North American parent companies such as Triple Canopy or MVM Inc., they reply that, as private companies, they are under no obligation to provide them. Finally, any claim for compensation must be made under the Base Defense Act in the United States. The insurance company usually refuses to compensate the family, as was the case with the deaths of the two Peruvians, on the grounds that the death was not “caused by or during the performance of work activities”. [28] Under the contracts signed, any dispute must be settled by United States courts.
39. The absence of legislation, regulation and appropriate oversight at the national level in Peru, as in many other countries, has produced a legal vacuum that benefits private security companies operating in the international market and looking for third-country nationals to hire as “security guards” in armed conflict zones.
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