Outsourcing Human Rights Violations
In her book Mercenaries, Pirates, and Sovereigns, Janice Thomson describes how Sea Dogs such as Francis Drake extorted large ransoms from Spanish colonial cities by threatening to destroy them if they failed to pay up. The Sea Dogs were virtually indistinguishable from other pirates, except that they were acting under the auspices of the crown. Queen Elizabeth orchestrated their so-called private campaigns, and due in large part to these state-sanctioned ravages, by the late 16th-century England had gained navel superiority over Spain. In a sense, Francis Drake was a subcontractor; Queen Elizabeth outsourced work, employing him and other Sea Dogs to execute certain tasks that according to today’s parlance constituted blatant violations of human rights.
The economic neologism outsourcing denotes, according to the Oxford English Dictionary, "the obtaining of goods or contracting of work from sources outside a company or area." Replacing the word work with violations and adding the word government before company, imparts a definition which helps explain a pervasive strategy used these days to abuse basic human rights: outsourcing, the contracting of violations from sources outside a government, company, or area.
Incorporating the term outsourcing violations into everyday discourse is important not because it describes a new practiceit doesn’tbut because it can be used as a theoretical tool to facilitate the conceptualization of existing processes pertaining to human rights. Using it to describe a range of existing practices is helpful because outsourcing discloses and highlights some of the prevailing features characterizing the global violation of human rightsfeatures that might otherwise remain concealed.
Outsourcing has been put to use primarily in order to abdicate social and moral responsibility. Its benefits are legal, political, and economic.
From a legal perspective, employing subcontractors is an effective device since it obfuscates the connection between the perpetrator and the contravening act, making it extremely difficult to hold the violator legally accountable for the abuses it sanctions.
From a political perspective, outsourcing is beneficial because even if abuses are exposed, they are frequently presented to the public as having been carried out by someone elsei.e., the subcontractor. In this manner, subcontracting violations helps a country deflect the shaming technique considered by many the most effective tool employed by human rights organizations. From a slightly different perspective, insofar as a major role of rights groups is to create norms that shape policies and interests as well as ensure that these norms are respected, outsourcing is used in order to conceal the perpetrator’s breach of these norms.
Finally, the use of subcontractors is economically advantageous not only because it cuts production costs, but also because it enables the corporation to avoid both legal prosecution and embarrassment, both of which can have an unfavorable effect on capital.
Hiring subcontractors to avoid responsibility for violating economic and social rights such as adequate working conditions and health care received extensive coverage in the mid-1990s when grassroots organizations led a number of campaigns against multinational corporations like Nike, Disney, Heineken, and Carlsberg.
Human rights groups disclosed that Nike employed children in substandard working conditions that endangered their health; they also revealed that Nike’s Southeast Asian employees receive a salary of two dollars per day, which cannot sustain them, let alone provide for health insurance and pension funds. When first interviewed, Nike CEO and founder Philip Knight asserted that his company wasn’t responsible for the violations because subcontractors were committing them. It was later disclosed that Nike didn’t own any manufacturing companies; all production was subcontracted to firms in countries like Thailand, Vietnam, and Indonesia.
The interesting phenomenon revealed by the Nike campaign isn’t so much the exploitation of disadvantaged populations and resourcesa practice that can be traced back to the colonizers of oldbut rather the widespread corporate practice of outsourcing exploitation to subcontractors. Further, the state-centric paradigm informing most human rights practitionerswhich assumes that the state is the major violator of human rightsis no longer accurate, as it doesn’t take into account the inordinate influence of transnational corporations whose revenues are often many times larger than domestic economies.
Whereas the employment of subcontractors sits well with neo-liberal economics, it often undermines basic rights. It is common knowledge that the economic polarization characterizing globalization has far-reaching implications for economic and social rights, rights that are often violated by employing subcontractors.
Alongside corporate outsourcing, governments violate rights by subcontracting services such as prisons, healthcare, and the military, to corporations. These practices are rarely confronted by human rights organizations in western countries, partially as a result of Cold War politics and the western emphasis on free market principles. Only in the past decade have scholars and human rights organizations begun emphasizing the importance of economic and social rights, demonstrating that without education and health, one cannot enjoy freedom of speech or the right to associate. Moreover, economic rights are necessary for measuring the detrimental effects of market forces including the harmful implications of the widening social and economic gaps.
The international campaigns against violations perpetrated in sweatshops across the globe eventually led western companies to demand that their subcontractors meet basic health and safety standards. Nonetheless, workers in sweatshops still suffer widespread violations on a daily basis. Most governments and transnational corporations as well as international financial institutions continue to encourage the use of outsourcing to violate economic and social rights.
Along the same lines, political and civil violations are also subcontracted around the globe. Torture, still illegal in the United States, has been contracted out to countries like Saudi Arabia, Morocco, and Egypt. The CIA has already transferred one hundred suspects to ally countries whose brutal torture methods have been amply documented in the State Department’s own annual human rights reports. "We don’t kick the [expletive] out of them," one government official told the Washington Post. "We send them to other countries so they can kick the [expletive] out of them."
This is what The Nation’s Eyal Press found out:
Many captives have been sent to Egypt, where, according to the State Department, suspects are routinely "stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electric shocks." In at least one case, a suspect was sent to Syria, where, the State Department says, torture methods include "pulling out fingernails; forcing objects into the rectum…using a chair that bends backwards to asphyxiate the victim or fracture the spine." A story in Newsday published just after Mohammed’s arrest quoted a former CIA official who, describing a detainee transferred from Guantánamo Bay to Egypt, said, "They promptly tore his fingernails out and he started telling things."
The second Bush administration, with its ongoing attack on civil liberties, didn’t invent the wheel. Not only have past administrations employed this tactic, but other countries have as well.
Consider Israel, which founded the mercenary South Lebanese Army (SLA) in 1978, employing it to control the so-called security zone or enclave, comprising about 10 percent of Lebanese territory. The Al-Khiam prison was the SLA’s permanent interrogation and detention facility, in which prisoners were held outside any legal framework. Torture was systematically practiced in Al-Khiam; the methods employed included electric shock, suspension from an electricity pole, dousing with water, painful postures, beating with an electric cable, and sleep deprivation. Amnesty International reports that torture practiced by Israel’s subcontractor resulted in physical injury and, on a number of occasions, the death of detainees.
Military training and support of governmental security forces and mercenaries, used extensively by United States and the former Soviet Union after World War II, are also mechanisms of outsourcing violations. Smaller and less powerful nations used these tools as well. The brutal Buhtulaizi government was armed and supported by the South African apartheid regime, and the paramilitaries in East Timor operated under the directives of the Indonesian military.
More recently, Private Military Contractors (PMCs), frequently run by retired military generals, have been utilized to do the dirty work previously carried out by foreign mercenaries. PMCs are the new big business on the block. Their job is to provide stand-ins for active soldiers, engaging in everything from actual fighting and battlefield training to logistical support and military advice at home and abroad. Writing for Mother Jones, Barry Yeoman suggests that they enjoy an estimated $100 billion in business each year, with much of this money going to Fortune 500 firms like Lockheed Martin, Raytheon, Halliburton and DynCorp. In the recent U.S. war on Iraq, the United States employed an estimated twenty thousand corporate workers in the region; that is one civilian for every ten soldiersa tenfold increase over the 1991 Iraqi War.
The advantage of subcontracting to PMCs is clear: it allows the executive branch to avoid public debate or legislative controls.
While Congress capped the number of U.S. soldiers who could be sent to Colombia at five hundred, the Pentagon together with the Colombian government have been employing additional corporate soldiers from DynCorp to carry out anti-drug operations. According to Peter Singer from the Brookings Institute, the firm utilizes armed reconnaissance planes and helicopter gunships designed for counterguerrilla warfare, and has been involved in several firefights with local rebels. DynCorp has lost several planes and employees to rebel fire, but there has been no public outcry about the losses, simply because "corporate soldiers" were killed rather than "real soldiers."
In Bosnia, the addition of two thousand corporate soldiers helped evade the Congressional limit of twenty thousand troops. The issue isn’t only that the Pentagon uses PMCs to undercut restrictions made via democratic procedures, but also that corporate soldiers are accountable solely to the corporations that retain them, rather than to governments.
Employees of DynCorp in Bosnia were caught operating a sex-slave ring of underage women and even videotaping a rape. Leslie Wayne from the New York Times reported that while DynCorp employees trafficked in womenincluding buying one for $1,000the company turned a blind eye. Since the DynCorp employees involved weren’t soldiers, their actions weren’t subject to military discipline. Nor did they face local justice; they were simply fired and sent home.
A 1991 U.S.-approved United Nations arms embargo prohibited the sale of weapons to or training of any warring party in the Balkans. But the Pentagon referred Military Professional Resources Inc. (MPRI), another private military contractor (currently a subsidiary of L-3 Communications) to Croatia’s defense minister. MPRI trained local forces in Croatia, which used their education to drive more than one hundred thousand Serbs from their homes and kill hundreds in a four-day ethnic cleansing campaign. No employee of the military firm has ever been charged.
An additional example wherein outsourcing is used to systematically violate human rights is the private prison complex, which currently holds over one hundred thousand inmates. In this case both political and civil rights, as well as economic and social rights, are violated.
The Nation’s Eric Bates argues that the real danger of prison privatization isn’t merely the inhumanity on the part of guards, but rather the added financial incentives that reward inhumanity. He states, "The same economic logic that motivates companies to run prisons more efficiently also encourages them to cut corners at the expense of workers, prisoners and the public. Private prisons essentially mirror the cost-cutting practices of health maintenance organizations: Companies receive a guaranteed fee for each prisoner, regardless of the actual cost. Every dime they don’t spend on food or medical care or training for guards is a dime they can pocket."
The major cut is in personnel. Employees are insufficiently trained, underpaid, and reduced in number; this results in, among other things, excessive violence by both guards and prisoners. Using an extensive apparatus of video cameras, one prison employs only five guards to supervise 750 prisoners during the day, and two at night. With rapid employee turnover and lack of guard training comes a significantly higher rate of contraband, drugs, and assaults on staff and prisoners.
Health services, when provided, are often inadequate and arrive too late, according to Allison Campbell, coeditor of Capitalist Punishment: Prison Privatization and Human Rights. Rehabilitative or educational programs are seen as superfluous luxuries that prisoners don’t deserve and that businesses cannot afford. Finally, lack of adequate food is also a major issue in private prisons. One released inmate reported that he would receive one good meal a month; the rest consisted of instant potatoes, canned vegetables, and pizzas.
"When the prison is a business, such cost reductions make a certain kind of sense," Campbell claims. "However, physical abuse, inadequate health care and a lack of adequate programming too often amounts to gross abuse of state-sanctioned power and authority."
Outsourcing is, however, not merely employed as a strategy to help the perpetrator abdicate responsibility for the violations it authorizes. It also assists the aggressor in maintaining a respectable aura in the public’s eye. It isn’t the United States that tortures Al-Qaeda suspects, Egypt does; it isn’t the transnational corporation that neglects the health of its employees, but rather its subsidiary in Thailand.
The state and transnational corporations use subcontractors in order to conceal pernicious practices, because the success of those in power, as Michel Foucault convincingly argued, "is in proportion to its ability to hide its own mechanisms." Thus, outsourcing should be considered a technique employed by power in order to conceal its own mechanisms. It is motivated by governments and corporations’ unwavering efforts to remain in control.
Because power is tolerable only insofar as it manages to mask part of itself, it presents hierarchical, exploitative, and oppressive relationships as if they are normal or natural; that is, beyond politics. Put differently, states and corporations employ a range of strategies and techniques in order to display social relationships that are upheld by power as if they were devoid of it or in some way deterministic. Accordingly, the outsourcing technique itself is frequently presented as necessary, as is evident in many economic discourses that argue that corporations must cut production costs if they are to survive; outsourcing therefore becomes inevitable. Along the same lines, cuts in government expenditure on health and education, as well as outsourcing work through personnel agencies and privatizing public services and companies, are presented as necessary and beyond politics. The idea that the outsourcing technique is necessarily driven by the configuration of the global economy is also an assertion of power.
The practice of outsourcing violations engenders new challenges for the human rights community. If the party carrying out the act isn’t the only culpable entity, then the process of identifying those responsible becomes much more complicated. Moreover, identifying the agent employing the subcontractor is only the first step in a long and arduous struggle against violations, since it often remains extremely difficult to prosecute or effectively employ the shaming technique. Consequently, human rights organizations need to develop new strategies and promote the introduction of clear directives within international law that take into account this phenomenon and can aid in holding governments, corporations, and other international financial institutions accountable. Some international agreements and treaties already have been providing a legal framework from which to begin addressing these violations.
The Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights is one example, declaring, for instance, that: states are responsible to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their economic, social and cultural rights. States are responsible for violations of economic, social and cultural rights that result from their failure to exercise due diligence in controlling the behavior of such non-state actors (article 8).
Confronting the outsourcing of social and economic violations requires a major reassessment of how human rights organizations should be constituted. Rights organizations need to begin presenting an alternative to the neo-liberal discourse disseminated by governments, corporations, and the mass media. The current hegemonic discourse ignores the existence of economic and social rights and assumes that businesses must be given maximum leeway to operate. In order to accomplish this, rights groups must also rethink the make-up of their organizations and begin hiring social economists who can work with their legal advisors. The underlying assumption informing this suggestion is that the objective of human rights organizations isn’t only to struggle against specific violations, but also to create a space and a discourse that empowers oppressed populations and enables them to struggle for their basic rights. Thus, the very introduction of alternative discourses and terms will assist in the struggle against human rights violations in the broadest sense.
NEVE GORDON teaches politics and human rights at Ben-Gurion University, Israel, and has written about the outsourcing technique within the Israeli context for the Journal of Human Rights. He can be reached at email@example.com