Background

Outsourcing labor and the responsibility of employing a cheap labor force to contractors and subcontractors has created an unintentional labor trafficking problem with Third Country Nationals (TCNs) on U.S. military bases abroad using taxpayer dollars. The United States continues to use the “3P” paradigm — prosecution, protection, and prevention — as the framework to combat human trafficking around the world. Still, in the past two decades, it has over-emphasized the prosecution strategy while human trafficking persists and grows, especially in a system that does not oversee and hold contractors accountable.

In the 1990s, the U.S. Armed Forces and the Clinton Administration began outsourcing jobs on U.S. military bases abroad to cut costs and allow military personnel to focus on combat. Since 2002, the United States has adopted a “zero-tolerance policy” on the trafficking of persons for all U.S. government employees and contractor personnel. However, since then, there have been many stories, exposés, and research done showing that human trafficking, specifically labor trafficking, occurs on U.S. military bases abroad despite the many anti-human trafficking initiatives and laws adopted over the past two decades.

The labor trafficking occurring on U.S. military bases has been most conspicuous on bases in Afghanistan, Iraq, and the Persian Gulf. Since many of these labor trafficking cases came to light, the military completely pulled out of Afghanistan in 2021 and has pulled all but a handful of troops in Iraq. These developments have decreased the necessity of TCNs and contractors on U.S. bases and embassies in Afghanistan and Iraq. However, the structural problem of little to no oversight or accountability for contractors’ and subcontractors’ recruitment practices facilitates an unethical and exploitative system that is likely to result in labor trafficking of TCNs. The United States maintains a presence in the Middle East at multiple locations and around the globe in other regions where TCNs are employed. 

The labor trafficking of TCNs on U.S. military bases in Afghanistan and Iraq should be utilized as a case study for exposing the underlying issues that enable contractors and subcontractors to conduct unethical labor practices. However unwilling or unwitting participant the U.S. Department of Defense (DOD) was in these past cases of human trafficking, the United States should be responsible for creating proactive solutions to prevent labor trafficking cases from occurring in the first place. 

Current Laws & Regulation

In March 1998, President Clinton issued a directive that established the United States’s strategy to combat trafficking domestically and abroad. This directive outlines a comprehensive and integrated policy framework that is organized around “the 3Ps” policy platform. This strategy focuses on the prevention of trafficking, protection and assistance for victims, and prosecution of and enforcement against traffickers. This directive came out before negotiations over the U.N. Trafficking Protocol, and the United States took the lead by making sure the 3Ps were incorporated into the finalized U.N. Trafficking Protocol. Before the U.N. Trafficking Protocol went into force, the United States passed the Trafficking Victims Protection Act of 2000 (TVPA), which codified the United States’s two definitions of human trafficking for prosecution and enforcement purposes.

Since the TVPA’s passage in 2000, U.S. anti-human trafficking efforts have increased. The United States subsequently 1) re-authorized the TVPA, 2) signed and ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the U.N. Convention against Transnational Organized Crime, and 3) instituted the DOD’s “zero tolerance policy.” These initiatives are essential and have furthered the United States’s goals to put an end to human trafficking at home and abroad. However, these initiatives reflect the United States’s propensity to focus primarily on the prosecution or enforcement aspect of the 3Ps while neglecting the prevention of human trafficking and the protection of victims. Prevention is the only strategy of the 3Ps that is proactive. Preventative strategies are aimed at targeting the root causes of human trafficking and stopping them before human trafficking can take place.

Prevention through Due Diligence 

One of the newest laws in the United States’s anti-human-trafficking arsenal is the Uyghur Forced Labor Prevention Act (UFLPA). The UFLPA expanded the Tariff Act of 1930 to create a rebuttable presumption that goods mined, produced, wholly or in part in China’s Xinjiang province are produced by forced labor and therefore may not be imported.¹ 

In a lecture by Anasuya Syam, the Human Rights and Trade Policy Director for the Human Trafficking Legal Center, Syam described the UFLPA as the new “crown jewel” for combatting labor trafficking through trade.² She explained how the UFLPA places the onus of due diligence on importers of goods into the United States. That is, importers are required to demonstrate through documentation that no part of their product was manufactured wholly or in part in China’s Xinjiang province if their goods are suspected to be produced in a supply chain that utilizes Uyghur forced labor.³

This law creates an oversight and accountability mechanism by which importers, under scrutiny of importing products from Xinjiang or by an entity on the UFLPA Entity List, must document compliance with U.S. anti-human trafficking laws. U.S. Customs and Border Protection (CBP) will detain goods from importers on the UFLPA list and charge importers fees for storing the goods while importers produce the appropriate documentation.⁴ This creates an increased incentive for importers to do their due diligence in overseeing their supply chain before importing their goods or risk being fined large amounts with the possibility of their goods being confiscated and disposed of. 

Shifting the responsibility to importers to produce this documentation also ensures that the United States has documentation that goods are more ethically sourced. In the CBP’s guidance for importers, the due diligence system is stated to require documentation for items such as mapping supply chains, assessing the risk of forced labor within supply chains, combatting trafficking in persons (CTIP) training, monitoring supplier compliance, remediation of any identified forced labor conditions, and independent audits. The UFLPA has been very successful in incentivizing proactive oversight of supply chains while also enforcing U.S. anti-trafficking laws and customs laws. 

A recommendation analogous to the UFLPA is amending FAR § 52.222-50 to include a provision modeled after the UFLPA. Creating a rebuttable presumption in this regulation would require contractors suspected of labor trafficking to produce documentation of their due diligence in ensuring labor trafficking is not occurring within their supply chain. The FAR already requires agencies to report TIP violations. Also, the DOD Instructions (DODI) requires that components report any actions taken against contractors for TIP violations to be reported to the Federal Awardee Performance and Integrity Information System (FAPIIS) using the System for Award Management (SAM) and the Contractor Performance Assessment Reporting System (CPARS), which are government-wide databases that are used by contracting officials to determine award decisions.⁵ These FAPIIS databases should be used like the UFLPA Entity list so that, after the period of contractor debarment is completed, there is increased scrutiny and oversight for contractors who have past TIP violations.⁶ The contractors and subcontractors would be incentivized to be proactive in identifying labor trafficking in their supply chains, as this ensures their eligibility for government contracts.

The documentation production requirements should pay special attention to common elements of TCN labor trafficking such as recruitment fees, withholding travel documents, contract switching, and country of origin. Similar to the UFLPA, the DOD should compile a list of the nationalities of TCNs who have been trafficked on U.S. bases in the past so they can identify people who are vulnerable to labor trafficking. The DOD then could require contractors to produce documentation such as TCN employment contracts to demonstrate that TCNs are being paid a fair wage and that TCN employees did not pay recruitment fees. Compelling contractors to provide this sort of documentation incentivizes oversight and accountability within the contractor’s supply chain. Some may argue that this creates an undue burden for contractors. However, if contractors are already adhering to anti-human trafficking laws such as the TVPA and FAR, this documentation should not be difficult to acquire. 

 The UFLPA is an effort that has been very successful, and a similar measure should be put in place to increase contractors’ and subcontractors’ accountability. This prevention strategy would simply compel contractors and subcontractors to produce documentation of TVPA and FAR § 52.222-50 compliance. This proactive approach would ensure TCNs are employed ethically within the DOD’s labor supply chain.

Conclusion

Outsourcing labor to contractors and subcontractors to hire TCNs does not have to be a system that unintentionally creates a thriving labor trafficking system. Increasing the oversight and accountability mechanisms within FAR § 52.222-50 would allow the United States to still employ TCNs on U.S. military bases without the fear of funding labor trafficking with U.S. taxpayer dollars. By expanding the United States’s prevention strategy in the FAR and the TVPA, the United States would further its anti-human trafficking goals and objectives while preventing human trafficking from occurring in the first place.

1. Tariff Act of 1930 § 307, 19 U.S.C. § 1307 (prohibiting imports of goods produced by forced labor). ↩︎
2.  Anasuya Syam, “Trafficking and Trade” (lecture taught at American University Washington College of Law on 16 November 2023). ↩︎
3. Id. ↩︎
4. Id. ↩︎
5. 48 C.F.R. § 22.1704(d)(1); DOD Instruction 2200.01: Combatting Trafficking in Persons (CTIP); U.S. Gov’t Accountability Off., GAO-21-546, Human Trafficking: DOD Should Address Weaknesses in Oversight of Contractors and Reporting of Investigations Related to Contracts (2021). ↩︎
6.  Cf. Anasuya Syam, “Trafficking and Trade” (lecture taught at American University Washington College of Law on 16 November 2023). ↩︎