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ForUM argued that KPSI’s activities in Guantanamo Bay brought Aker Kværner in direct violation of the Guidelines. ForUM cited reports by the International Committee of the Red Cross, Human Rights Watch, and Amnesty International that the operation of the facilities breached international humanitarian and human rights norms, including the prohibition against torture and other forms of cruel, inhuman or degrading punishment. As such, ForUM requested KPSI to discontinue its activities at Guantanamo Bay.
Aker Kværner responded that the ethical issues raised by KPSI’s activities did not warrant shutting down its operations. Aker Kværner pointed out that the detention facilities were built 10 years after KPSI had contracted with US authorities to work at the Marine base. It also said that, despite shared operational and supply functions and occasional maintenance services, KPSI was not involved in the operation of the detention facilities.
The Norwegian NCP received an enquiry from Forum for Environment and Development (ForUM) on 20 June 2005 concerning the activities of Aker Kværner ASA in Guantanamo Bay, Cuba. The complaint alleged that Aker Kværner, acting through its wholly-owned US subsidiary Kværner Process Services Inc. (KPSI), had failed to comply with the Guidelines by providing assistance to the US detention facility in Guantanamo Bay.
The company’s operations in Guantanamo Bay: Aker Kværner, acting through KPSI, had been carrying out work for the US Department of Defence at the US military base in Guantanamo Bay, Cuba, since 1993. KPSI’s work consisted of maintenance tasks (e.g. ensuring proper functioning of electricity and water supplies). After 11 September 2001, the US constructed a detention camp (“Camp X-Ray”) next to the Marine base for the internment of terrorist suspects imprisoned in military operations abroad. The US government had contracted with other companies to build the camp and KPSI did not have a contract for operating the prison. KPSI occasionally, on request, provided assistance with water and electricity facilities and other functions shared between the Marine base and the prison. KPSI’s bid in the spring of 2005 to conduct further maintenance work at the Guantanamo Bay base was rejected; as a result, KPSI was going to discontinue its engagement at Guantanamo Bay by March/April 2006.
The NCP held meetings with Aker Kværner and ForUM on 5 September and 26 October 2005 to discuss the complaint and assist the parties in reaching agreement.
The NCP clarified that this complaint did not raise the question of whether Aker Kværner had directly violated human rights laws, as “human rights conventions apply to states only, and companies cannot therefore be held responsible for violations of human rights.” The NCP added, however, that companies can, through their own actions or omissions, be complicit in or profit from violations of human rights by states (OECD Guidelines, Chapter II, Recommendation No. 2). The NCP thus considered whether the company had failed to “respect the human rights of those affected by (its) activities consistent with the host government’s international obligations and commitments.”
The NCP examined a series of international reports expressing serious concern about the operation of the detention facilities at Guantanamo Bay. The NCP recognized that such criticism was directed at the detention camp and not the Marine base, but found that Aker Kværner and its subsidiary KPSI had occasionally carried out maintenance work on shared operational and supply functions both the based and the prison. Thus, since the operation of the prison depends on the maintenance of joint infrastructure (the type of work carried out by KPSI), the NCP concluded that KPSI’s activities “at least in part can be considered to have affected the inmates.”
The NCP acknowledged that the nature and extent of Aker Kværner’s activities were unclear, because the company refused to provide specific information about its activities at Guantanamo despite the NCP’s repeated requests. The NCP observed that Aker Kværner could have provided extensive documentation without compromising its confidentiality obligations towards US authorities. The NCP added that Aker Kværner had not submitted documentation of the company’s internal ethical assessments in relation to its activities at Guantanamo Bay, including any board discussions of these issues. This led the NCP to conclude that the company had not drawn up ethical guidelines for its activities. Moreover, Aker Kværner did not use the Guidelines as a basis for its assessments.
The NCP emphasized the importance of continuous assessments by Norwegian companies of their activities in relation to human rights in general, adding that the provision of goods or services in situations like Guantanamo Bay require “particular vigilance.”
The NCP concluded that Aker Kværner should have undertaken a thorough and documented assessment of the ethical issues in connection with its tender for the renewal of the contract in 2005. The NCP therefore urged the company to draw up ethical guidelines and to apply them in all countries in which it operates in order to come in compliance with Chapter II, Recommendation No. 2.
In its 2010 Report, '10 Years On', OECD Watch highlighted how a strong and clear NCP statement can contribute to a better common understanding of how business is expected to behave, and provide useful recommendations for improving the implementation and effectiveness of the Guidelines, citing the NCP's statement in this case as a positive example.