The Human Rights Blog

Elizabeth Hebert, M.A. Conflict and Dispute Resolution, University of Oregon

Antionette Vlieger’s book entitled, “Domestic Workers in Saudi Arabia and the Emirates: A Socio-legal Study on Conflicts” looks at the conflicts surrounding the controversial relationships between migrant domestic workers and their employees in the Middle Eastern countries of Saudi Arabia and the United Arab Emirates. It is published as a part of the Human Rights and Culture Series published by Quid Pro Books.  Her central research question is “Which factors influence the (emergence and character of) conflicts in the Kingdom of Saudi Arabia and the United Arab Emirates between domestic workers and their employers, the norms of both parties (may) refer to, and the related (im)balance of power?”

Ms. Vlieger outlines the norms in the conflicting societies, discusses the institutions involved with domestic work in the Middle East, household dynamics, and concludes with pragmatic steps forward to bettering the condition of migrant domestic workers in Saudi Arabia and the Emirates. Ms. Vlieger gives more background on her research in the interview below.

1)     How did you originally begin researching about the situation of migrant domestic workers?

The fact that I got to do this research was quite a coincidence. I was researching intercultural communication between lawyers and their clients, when my professor suddenly passed away. The dean transferred me to another department and my new professor asked me to change  my research topic. He proposed something completely dull and I answered that if I’d have to research that for five years, I’d probably jump off the roof somewhere halfway. We decided to think it over for a couple of weeks and that weekend, at the ballet classes of his daughter, he got a request from an anthropology professor: “Something is going wrong in the Middle East with the domestic workers, can you send a lawyer?”  He had my resume in his bag, showing that I had studied, apart from law school, a bit of anthropology, economics, some Arabic and politics of the Middle East. That next Monday I totally agreed with him that I was perfect for the job. I guess that I was a bit naïve when accepting this assignment. It was a lot more difficult than I had imagined: not intellectually but emotionally.

2)     What was the most difficult challenge you faced when trying to access and interview domestic workers? Employers? Government officials?

There were loads of hurdles to take. For instance, most domestic workers are not allowed to leave the house of their employers. At first I could only interview the women who had run away from their employers, but that very much colored my results. I needed a better place to contact the women and I decided to fly to two countries of origin: The Philippines and Indonesia. There, I simply waited at the airport for planes to arrive from Riyadh and Dubai. I also found an office in Manila where domestic workers renew their passports when going back to the same employer. I interviewed these women in the waiting room. Interviewing employers was not so difficult in Saudi Arabia, but it was in Dubai. The original Emirati population has been reduced to 5%, so many of them are fed up with, or actually afraid, of all foreigners. Most government officials wanted to talk to me and I guess being a tall, blue-eyed blond was a benefit. But the legal-religious elite in Saudi Arabia generally refused to talk to me because I am a woman. Also, I never succeeded in gaining access to prisons or deportation centers. I did manage to research the agencies that send the women across the world. In the two countries of origin,I  sent somebody to find out what they would tell her about the working conditions, and then in Saudi Arabia and Dubai I pretended to be pregnant and in need of a domestic worker to hear what they tell employers about the work conditions. According to some researchers, this is not allowed to conceal that you are a researcher, but when dealing with traffickers, it’s the only way to do it. Otherwise they would never have given answers like: “she will be your slave for two years,” while these are very important data.

3)     How did benevolent employers react to your research?

The employers vary the way people in our own countries vary. There were employers who warned me: “It is very important what you are doing, but please be careful of the government. There is too much money at stake, they don’t want you to ruin their image.” Others agreed that the research was necessary, but thought it was ridiculous that an outsider was doing it. I always replied that as soon as they would actually address the problems themselves, I would be happy to step back. Many simply denied the existence of a problem, or they said the root of the problem was the domestic workers themselves. Some suggested places to research and others simply admitted to being too afraid of the government to say anything about it. One women in Saudi Arabia was very surprised about my research results, about the lies told by the agencies and about the lack of freedom of the domestic workers, partly due to the severe poverty back home. This lady actually went to Indonesia herself, to stay with the family of her domestic worker, to learn more.

4)     Why do you believe there has been an increase in awareness surrounding the issues of migrant domestic workers, particularly in the Middle East?

I am not altogether sure that there has been an increase in awareness compared to the size of the problem. Although I have no quantitative data to support this, I think the problem is growing, not diminishing.  And as it is growing, it draws more attention. Both governments are trying very hard to cover it up. Workers who create problems are instantly deported. Newspapers can’t write about it. I tried to say something about it on the radio, to publish something in the papers, but all in vain. Especially Dubai is doing a lot of window dressing: they built this fantastic center for trafficking victims and show journalists around. But they don’t recognize anybody as  a victim and then publicly claim there is no problem. Dubai thrives on foreign investments, both dirty and clean. They are well aware of the importance of maintaining the brand of Dubai. Saudi Arabia is already struggling with its image, in light of the origins of Al Qaida and the position of women in the country. They play it rough: If, for instance, Indonesia is complaining too much about the treatment of the female workers, the government threatens to stop funding mosques, to stop delivering oil, to stop issuing visas to pilgrims heading for Mecca. Indonesia has the largest Muslim population in the world, (so) that it a serious threat. Also, there is so much money going around in the human trafficking business that many people are paid to keep their mouth shut. I (too) was threatened: “Are you sure you want to get home alive?” In light of all this, the fact that awareness increases is a miracle and I think it can only be explained by the growing size of the problem.

5)     What do you think of using a trafficking framework when discussing the situation of domestic workers?

I have used several frameworks to discuss this problem: human rights, women’s rights and workers’ rights, access to justice and power balances. But you are right, I paid a lot of attention to the trafficking framework because I noticed a problem there that in my eyes needs to be addressed. The Palermo Protocol on trafficking prescribes national governments to criminalize and prosecute trafficking. But the business of human trafficking has grown tremendously and the amounts of money going around in it are astronomical. In countries such as Indonesia and the Philippines, both poor countries, the average salary of a government employee is very low and therefore most of them can be bribed easily. In the Middle East, the money flows opposite of how it flows in the West, not from citizens to the government in the form of taxes, but from the government to citizens. Oil money is used not only to oppress the population, but also to bribe them. So in the oil-rich Middle East, the system is not corrupt, but corruption is the system. This means that traffickers will not be prosecuted there either: they actually form part of the government. I wanted to draw attention to the fact that we all agree that we cannot leave the fight against drugs to, for instance, the Colombian government, as the drugs mafia is too rich and powerful compared to that government. But at the same time we do leave the fight against human trafficking to national governments, while that mafia is just as rich and powerful. So I feel it is necessary to discuss the issue of domestic workers in a trafficking framework, to draw attention to the fact that the international flows of migrant workers need to be monitored at an international, not at a national level.

Antoinette Vlieger is a professor at the University of Amsterdam. Her book, Domestic Workers in Saudi Arabia and the Emirates: A Socio-legal Study on Conflicts is available in paperback, hardcover, Kindle, Nook and Apple. Full info and links available is at Quid Pro Quo and Amazon.

Popularity: 4% [?]

David Prater, J.D. Candidate 2012, The University of Maryland School of Law

On February 3, 2012, the International Court of Justice (“ICJ”) handed down its decision in the Jurisdictional Immunities of States Case (Germany v. Italy, w/Greece Intervening).   Germany won the case.

At issue before the ICJ was the immunity of Germany from the judicial process of Italy (and Greece) for forced labor, deportations, and massacres committed by German armed forces during the Second World War.   The Court held that the long standing principle of immunity of states from the judicial process of foreign domestic courts could not be abrogated even when the substantive claim before the foreign domestic court involved gross violations of human rights on the territory of the forum state by organs of the foreign state acting in their official capacity.

This decision comes at a time when a significant obstacle for the successful conclusion of on-going stalled armed conflicts is the immunity of armed forces for violations of human rights committed during the course of the armed conflict.   By declining to abrogate foreign sovereign immunity, the Court likely had an eye toward allowing states the freedom of action to successfully negotiate peaceful resolutions to armed conflicts, rather than prolong peace in hopes of achieving an all victory in order to forego responsibility for the acts of armed forces during the course of the armed conflict.

Background

The Second World War was a global conflict.   Almost no territory was left untouched by its effects.   The atrocities committed during the war spawned the current international legal order and was the genesis of the human rights movement.

In Italy, German armed forces forced Italian civilians into slavery and deported them to Germany to work in factors.  In Greece, German armed forces committed a massacre against Greek civilians thought to have an affiliation with Greek partisans.

During negotiations to formally end the war after Germany’s unconditional surrender, Germany agreed to undertake various reparations schemes to compensate victims of the Third Reich’s odious policies while Italy and Greece agreed to waive all claims of it civilians arising from the war.  However, the claims of numerous victims were invalidated by Germany’s compensation commission for a variety of procedural and substantive reasons.   In particular was one Mr. Ferrini, who was forcibly deported from Italy to Germany and forced into manual labor.  Germany claimed Mr. Ferrini was detained as a prisoner of war and was excluded from the competency of their reparations scheme.

Mr. Ferrini brought suit in Italian domestic courts against the state of Germany for the injuries, mental and physical, suffered by him during his forced deportation and subsequent labor in Germany during the course of the war.  Germany declined to participate in the adjudication because Germany insisted that the state of Germany maintained immunity from the judicial process of Italy.  Generally, a state is immune from the judicial process of foreign domestic courts when it commits sovereign acts.  However, when a state acts in a commercial capacity or on the territory of the foreign forum’s territory, the state can be subjected to the judicial process of a foreign domestic court.

In its holding, the Italian court declined to honor Germany’s immunity from judgment of its courts and proceeded to hold Germany responsible for the damages suffered by Mr. Ferrini.  To satisfy the judgment, Italian courts executed on several German owned properties within Italy that were used by Germany for cross-cultural purposes.  Germany brought an application to the ICJ to resolve the dispute between Germany and Italy regarding Germany’s immunity from the judicial process of foreign domestic courts.

The ICJ held that the exercise of jurisdiction by Italian courts and the execution of those judgments was a violation of international law.  The ICJ reasoned that states retain their immunity for the acts of their armed forces committed on the territory of a foreign state during the course of an armed conflict.   This judgment severely restricts the rights of states to adjudicate gross violations of human rights that occur on their territory.

Please see video: Nazi massacre village fights for compensation

Analysis

The ICJ’s opinion in the Jurisdictional Immunities of the State should first be placed in its proper historical context.  No country was left untouched by the Second World War and conduct comparable to those committed by Germany at issue in the Ferrini case were committed by virtually every country.  For instance, the United States used uncompensated forced labor of German POWs and civilians after their occupation of Germany.  This does not suggest some form of moral equivalency between the regimes, but rather suggests that if the ICJ were to allow claims from over 60 years ago to be resurrected against states who committed gross violations of human rights virtually every state would be subjected to trial proceedings in every far-reaching jurisdiction across the globe.  This would severely strain international diplomacy and the comity enjoyed between states.

Secondly, the ICJ opinion should be placed in its contemporary context.  Current armed conflicts in Israel, Iraq, and Afghanistan have resulted in gross violations of human rights by both opposing forces.  If the ICJ were to permit the abrogation of sovereign immunity, regardless of treaty provisions waiving all claims, for gross violations of human rights committed by armed forces the effect would likely be to prolong the conflict until one side could claim a victory sufficient to suppress any claim against the state.  In fact, issues of immunity were central to the United States decision to withdraw from Iraq.  Read more about the Haditha massacre and immunity of armed forces here.

If states were permitted to abrogate their obligations under treaty and custom for legal claims arising from an armed conflict, then international peace and security between states would be tenuous.  However, the result permits states to sail the rights of their civilians down the river to negotiate what is the best resolution for states, and not the civilians to whom the state is purportedly responsible.

On another matter, the Jurisdictional Immunities of the State opinion appears to leave the ICJ’s most ambitious human rights doctrine – convergence – in limbo.  The convergence doctrine holds that a state’s obligations under international human rights law are not suspended when the state enters into an armed conflict.  In the Armed Activities Case (Democratic Republic of Congo v. Uganda), the ICJ held that an occupying power had obligations not only as the occupying power under the Fourth Geneva Convention but also had obligations under any treaty in force before the occupying power took effective control of the territory.   Under the principle articulated by the ICJ in the Jurisdictional Immunities of the State, civilians in formerly occupied territory can have no recourse through domestic courts for human rights violations committed by foreign armed forces during an armed occupation.  These disputes can only be resolved through bilateral negotiations between states.

Conclusion

In the Jurisdictional Immunities of the State Case, the ICJ handed down a decision that weighed heavily in favor of state interests over individual human rights claims.  While the effects of the decision conform to traditional principles of international law that emphasize a ‘community of nations’ over the rights of individuals, the decision sends a strong signal to human rights activists that the ‘humanization’ of international law is far from assured and that state interests continue to seriously impede the full aspiration of the human rights movement especially to those most vulnerable to violations, persons living in areas of conflict and occupation.

Popularity: 6% [?]

Paul Scrom, J.D. Candidate 2012, Hofstra University School of Law

Recently, several pieces of legislation were introduced in the United States Congress aimed at preventing internet piracy and protecting intellectual property (“IP”).  Specifically, the Protect IP Act (“PIPA”) and the Stop Online Piracy Act (“SOPA”) were the two leading attempts at limiting the Internet.  The bills seemed almost guaranteed to pass until a tremendous amount of protest by internet users and internet companies greatly influenced Congress to delay voting on the bills and convinced lawmaking proponents of the bill to cease their support.  During the arguments over the bill, opponents quickly drew comparisons to the Internet censoring structures of Iran and China, two countries infamous for their internet regulation surmounting to human rights violations.  The same could be said for PIPA & SOPA, but one main difference is that the American bills at least mask censorship of speech by claiming their only goal is to stop piracy and protect IP rights.  But, there is a conundrum:  there are both human rights in IP protection, and in freedom of speech and expression.

Human Rights Issues Concerning Internet Regulation

The Universal Declaration of Human Rights provides for rights to freedom of speech and expression, along with intellectual property rights.  In Article 19 the rights to speech and expression are materialized:

Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Although the Internet did not exist in 1948, when the Declaration was created, the Internet is still a form of media and a frontier in the context of this article.  The laws of any country which limit the freedom to receive and impart information on ideas through the Internet are surely in violation of this fundamental human right.  Article 27 of the Declaration seems to deal directly with intellectual property.  There are two sections to Article 27:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2.  Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Laws such as SOPA & PIPA have a curious task in balancing these two provisions.  How do you balance the individual’s right to protection of moral and material interests stemming from authoring scientific or artistic creations, if everyone has the right to freely participate in the cultural community and to enjoy and share in the arts and benefits of scientific advancement?  The Internet is a medium in which millions of people are creating art and advancing science every single second, participating in a cultural community (Art. 27-1).   Ironically, it may be necessary to limit the medium in order to protect such creation of the individual (Art. 27-2).  Further, the Internet is a river in which the water of ideas constantly flows, and setting up a dam to protect individual creators (Art. 27-2) will consequently impinge upon the right of others to express and hold opinions and receive information (Art. 19).  Countries like China and Iran are highly criticized because the regulatory infrastructures are far from sympathetic toward the rights found in Art. 19 and Art. 27-1.

China and Iran: Arbitrary and Disproportionate Internet Censorship

Photo credit: slashgear.com

China’s “Great Firewall” is the strongest and largest censorship structure of the Internet currently, with Iran’s filtering software right behind it.  The two countries use firewalls and other software to block online speech which it finds immoral or threatening to their system of fear they worked so hard to use to control their citizens.  China not only stymies unapproved content, but the country targets individuals and restricts them from using the Internet altogether.  In fact, a Chinese citizen can easily be arrested for writing a single email complaining about the government.  Both countries participate in this imprisonment of cyber dissidents, clearly violating the human rights embedded in the sections of the Declaration discussed above.  The governments use internet censorship to stop the infiltration of outside, specifically western, media and politics, and to monitor speech internally.  The two governments use a filtration system which requires all websites to register through the government and gain permission on its content.  Although it is well known that the two countries perpetuate abuse through their regulation of speech, the level of the abuse is hard to discern because of the censorship itself.

China’s and Iran’s main goal in internet censorship is to regulate speech in order to suppress dissidence and ensure control through fear.  The United States Congress’ attempt at censorship is aimed at protecting IP, but the fear is that the bills are too broad and even any amount of censorship would inevitably lead to a system like China’s and Iran’s where the government can pick and choose which speech is made available.

SOPA & PIPA: A Road to Another “Great Firewall?”

The human right to protection in one’s IP is uncontroverted; everyone deserves protection for their individual innovations and contributions to entertainment, the sciences, and more.  SOPA & PIPA have the right intentions, but will likely have the wrong effects.  Such effects will inevitably lead to the squelching of speech not subject to IP protection, but subject to protection as a human right.  Thus, the bills need to balance such squelching with IP protection, the two human rights at issue.  When the bills are analyzed, it is clear that they fail in sufficient IP protection, and go too far in squelching the freedoms of speech and expression.

One main illustration of this imbalance is that although SOPA & PIPA claim to only target foreign sites which infringe on IP, the bills require compliance and liability on third party U.S. sites as well.  Not only will this result in suppressing foreign sites from entering U.S. internet domains out of fear of being subjected to lawsuits for what users or subsidiaries post on their sites, but U.S. sites have a positive duty to monitor content and would be subject to liability (under SOPA at least) if they do not act on infringing content.  This will inevitably lead to startup companies, whether foreign or domestic, and individual users, deciding to not enter the market or post on sites out of fear of violating the act, squelching potential speech.  This is particularly problematic for sites such as Youtube and Facebook, which are engines of free speech and allow for user generated content. The bills are overbroad as sites would be in violation of the bills for “enabling or facilitating” infringement.  How far does the definition of enabling or facilitating go?  Practically, the existence of the Internet itself enables and facilitates infringement.  Youtube and Facebook would have to take positive steps to monitor millions and millions of domestic and foreign users.  They would be subject to the lawsuits and potential criminal sanctions associated with bills if they fail to do so.  This would result in the suppression of both speech and the mediums of speech themselves.  Craigslist, Google, eBay, personal sites of musicians, fan sites of celebrities, and other millions of sites that enable the spread of information, speech and business will inevitably be targeted for infringement claims under the broad nature of the bills.

Also, the mechanism for censorship under the bills is exactly the same mechanism used by the Chinese: DNS blocking.  DNS, or Domain Name System, is the identification protocol for anything connected to the Internet.  The bills will block the particular DNS which supports or facilitates content in violation of IP rights.  This is a wholesale technique which will block other speech under the particular DNS that is not in violation of the bills.  This is concerning because the U.S. has promoted similar legislation in other countries, particularly Russia, which now use the legislation to suppress political dissidents, rather than to protect IP.  Although there is some evidence of China’s and Iran’s use of their anti-piracy laws to censor speech over the Internet, they do not need to use such laws to do so since their censorship laws are so blatant.  But in Russia, the government has used laws similar to PIPA and SOPA to target anti-government dissidents.  Once these bills are passed, the United States runs the risk of allowing the government to abuse, whether discretely or not, their newfound censorship powers.

In conclusion, bills such as PIPA and SOPA are too risky.  The potential for grave and far greater abuse of our Art. 19 and Art. 27-1 rights, rather than protecting violations of our Art. 27-2 rights, justifies the overwhelming protest over the bills.  For now, the bills have been tabled, but not thrown out.  The risk of falling into a censorship system eerily similar to China’s and Iran’s, is not worth the minor potential protection of IP these bills have.  In fact, many critics of the bills believe they are far too focused on enforcement.  The Internet is too dynamic and ever changing to think that DNS blocking and some fear is powerful enough to sufficiently protect IP rights.  Many think that the fix to IP violations over the Internet is to be found in the business realm.  The true path is to focus on user friendly, clean, and intuitive services, such as Netflix and Spotify, that give users incentives to pay for content at a reasonable price.  There seems to be a disparity in how much money proponents of the bills, such as the movie and music industry, want out of their products and what the consumer is willing to pay.  But, from a human rights perspective, the risk seems too great to justify the benefit.

Popularity: 8% [?]

David Prater, J.D. Candidate 2012, The University of Maryland School of Law

The Appeals Chamber (“the Chamber”) of the International Criminal Court (“ICC”) rejected the appeal of Kenya on an application challenging the admissibility of the case against six prominent Kenyans following the contested 2007 Presidential Election.  In so doing, the Appeals Chamber affirmed that the principal of complementary jurisdiction required Kenya to investigate the same conduct and same persons indicted by the ICC. 

However, the Appeals Chambers did not establish a bright-line rule that an investigation at the ICC and a national investigation must always investigate the same person and same conduct.  Instead, the Appeals Chamber held that because the ICC proceedings were at such an advanced stage, Kenya’s investigation should have investigated the same person and conduct.  By considering the respective stages of proceedings at the ICC and Kenya, the Chamber implicitly judged the unwillingness of Kenya to pursue an investigation and prosecution in the case by the “unjustified delay in the proceedings, which in the circumstances is inconsistent with an intent to bring the person concerned to justice.”  This implicit judgment better achieves the purpose of complementary jurisdiction but blurs the line between the two-step analysis of Article 17(1) established by the Chambers in Katanga.

Background

Kenya is a formal British colony in the Horn of Africa region.  It is a multi-ethnic society whose diversity was exploited by British imperial powers to agitate relations among the various indigenous groups in order to conquer and exploit the natural resources of the land.

An anomalous Kenyan nationalist coalition successfully negotiated independence in 1964, but subsequent leaders employed the resources of the colonial administration-cum-state to the benefit of favored families and ethnic groups.  In 1972, Daniel Arap Moi ascended to the Presidency and ruled the country for thirty plus years.  As reforms were slowly pushed through, Moi was prohibited from seeking re-election in 2002.  The opposition National Rainbow Coalition (“NARC”) candidate, Mwai Kibaki was elected in 2002.  In 2005, a new opposition was formed to prevent the ratification of a new constitution.  The Orange Democratic Movement (“ODM”) succeeded in voting down the Constitution and formed itself as a political party.

In 2007, ODM leader, Raila Odinga, and President Kibaki campaigned in a rigorous and disputed election.  International and domestic observers reported widespread irregularities in the election.    Disregarding these observations, the Kenyan Election Commission declared President Kibaki the outright winner.

Massive violence followed, largely along ethnic lines, which the British previously exploited.  Over 1,000 were killed and numerous cases of rape were reported.  Only through the intervention of former U.N. Secretary-General Kofi Annan were Odinga and Kibaki able to negotiate a unity government and save Kenya from dissolving into civil war.

As part of the negotiation, Kofi Annan sealed six names in an envelope and promised to deliver them to the U.N. Security Council and the ICC Prosecutor, Luis Moreno Ocampo, if Kenya did not pursue the prosecutions.  These six Kenyans, William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis Kirimi Muthara, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, are high-ranking members of the Kibaki and Odinga political organization.

At his own motion, Ocampo launched an investigation into the post-election violence in Kenya and subsequently indicted the six Kenyans also known as the “Ocampo Six.”

The Judgment

The decision of the Appeals Chamber of August 21, 2011 came after a long series of procedural moves by Kenya to exempt the Ocampo Six from the jurisdiction of the ICC. The objections at issue in this appeal related to Kenyan’s own investigation of the case.  Under Article 17(1)(a) of the ICC Statute, the Court decide a case is inadmissible when, “the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

Kenya sought to have the Prosecutor’s case against the Ocampo Six deemed inadmissible because Kenya was conducting an investigation into the same conduct, but not necessarily the same people.  Kenya argued that Article 17(1)(a) only required that a State investigate the same conduct and not the same person, because it was unreasonable to assume that the ICC and State party always had the same information relevant to the alleged crimes and that a State party could likely be investigating another suspect.

Analysis

In the Katanga decision, the Appeals Chamber held that determining whether a case was inadmissible under Article 17(1)(a) was a two step analysis that considered: 1) whether there are ongoing investigations or prosecutions; and, if this question is answered in the affirmative, then 2) the unwillingness and inability of the state to carry out the investigation.  Factors to consider when determining the unwillingness and inability of a state to carry out on investigation or prosecution are described in Article 17(2) and include a) the prosecution or investigation was undertaken to shield the person for crimes within the jurisdiction of the court; b) there has been an unjustified delay in the proceedings inconsistent with an intent to bring the person to justice; and c) the proceedings are not conducted independently or impartially, and were being conducted in an matter inconsistent with an intent to bring the person concerned to justice.

In the Ocampo Six decision, the Appeals Chamber held that to satisfy the first question (whether there are ongoing investigations or prosecutions) a State must be investigating or prosecuting the same person for the substantially same conduct because the proceedings regarding the situation in Kenya were at such an advanced stage.   However, this conclusion blurs the clean two-step analysis created by the Court in Katanga.

The existence of an ongoing investigation or prosecution is a wholly objective one:  Is there, in fact, an investigation?  Kenya argued it unequivocally satisfied this question.  The Court, however, disagreed because Kenya was not investigating the same person and should have been doing so at this stage of the proceedings.  But the Court’s reasoning implicitly considered the qualitative substance of the Kenyan investigation and its delay in proceedings.  Secondly, the Court also considered whether the Kenyan investigation was “carrying out steps directed at ascertaining whether these suspects [the Ocampo Six] are responsible for substantially the same conduct as is the subject of the proceedings before the Court.”  Moreover, the Statute itself only explicitly considers a State’s investigation or prosecution of a person in Article 17(2).

Conclusion

The Court’s considerations are directed toward the quality and genuineness of Kenya’s investigation –not whether there is simply an investigation.  The Court adopted a process where the quality of a State’s investigation or prosecution is always subject to the Court’s consideration, and rightfully so.  Continued reliance on the Katanga case’s two-step analysis, as opposed to the Ocampo Six holistic approach, would permit States to immediately stall ICC investigations by merely opening unsubstantial investigations or prosecutions.

This latest decision regarding the Ocampo Six can be considered a purposive one, which better combats impunity and promotes accountability for perpetrators of gross violations of human rights.

Popularity: 5% [?]

Elizabeth Hebert, M.A. Conflict and Dispute Resolution, University of Oregon

Author’s note:  When investigating human rights abuses, I typically stray far from home.  I’ve studied refugee rights in the Middle East and migrant domestic worker trafficking theory.  However, so many human rights abuses exist right under our noses – in cities and towns in the United States.  

The Pacific Circuit is a human trafficking ring that runs along the West Coast.  When I first read that the Pacific Circuit existed, I was surprised; when I read about where the human trafficking actually took place – right in my home state of Oregon – I was astonished.  Known as the Interstate-5’s dirty underbelly, these human trafficking rings stretch from Seattle to San Francisco.  And, although Oregon has anti-trafficking laws on the books, additional steps must be taken to prevent trafficking and better help the victims of trafficking for sexual exploitation.

Background:

The Pacific Circuit is a human trafficking ring for sexual exploitation on the West Coast, specifically running its victims up and down the Interstate-5, which stretches from Seattle, Washington to San Francisco, California.  The main hubs of criminal activity are Seattle, Portland, and San Francisco.  However, virtually any truck or rest stop along the freeway is a potential location for trafficking crimes.

The Eugene Weekly, an alternative newspaper based in Eugene, Oregon, explains that Lane County, Oregon is a hotspot for trafficking victims.  The paper writes, “[i]n sleepy little Eugene, some 90 miles south of the maligned “Pornland” and far from the populous cities of San Francisco and L.A., there would seem to be nothing for sex traffickers to prey on: no destitute starlets, no major international port, no out-of-control crime wave to hide behind.  But local treatment facilities, women’s advocates and law enforcement say Eugene is no stranger to sex trafficking, and it’s not just that trafficking passes through rural Oregon on I-5.  Lane County is a recruitment ground and a market for sex traffickers.”

In addition to Interstate-5, sex trafficking extends onto the offshoots of the freeway to Sacramento and Las Vegas. No matter the routes or the miles the victims travel, it is important to note that trafficking does not necessarily involve movement. Migrant smuggling and trafficking are two different concepts that revolve around a person’s consent in the process.

Oregonians Against Trafficking Humans (OATH), a nonprofit organization that seeks to “encourage citizens to…help combat the growing scourge of human trafficking within the state of Oregon,” aptly writes, “[t]he key distinction between trafficking and smuggling lies in the individual’s freedom of choice. A smuggling situation can escalate into a trafficking situation if and when the smuggler sells or ‘brokers’ the smuggled individual into a condition of servitude, or if the smuggled individual cannot pay the smuggler and is then forced to work off that debt.”  (See OATH: What is Human Trafficking)  Simply put, human trafficking is all about the lack of consent of the victims.

Who’s At Risk:

Often times, human trafficking occurs to women and girls who are native to the area. Since trafficking for sexual exploitation does not necessarily involve movement, it can be forced upon the local and vulnerable populations.  Susceptible groups include chronically homeless youth or youth from troubled homes.  In addition, many women who are trafficked are refugees who initially sought asylum in the United States. For example, though all women regardless of ethnic background are subject to human trafficking, Southeast Asian women are particularly at risk for trafficking on the West Coast.

In an interview with The New York Times this past May, Elizabeth Sy of Banteay Srei, an Oakland-based program for at-risk Southeast Asian girls, said, “[m]any Southeast Asian girls come from new refugee populations. Recruiters target these girls because they know they are struggling with issues of cultural identity.”  (See In Oakland, Redefining Sex Trade Workers as Abuse Victims, NY Times May 2011.)

How Human Trafficking Works:

Generally, pimps and traffickers target women and girls who are a part of a vulnerable population or who suffer from low self-esteem.  In Portland, for example, these individuals often canvass the local malls, bus stops, and even schools to choose “their girls.”  According to Sgt. Mike Geiger of the Portland Police Department, these pimps befriend young girls and identify their needs, promising clothes, jewelry and affection.  Typically, they lavish the chosen girls with gifts to make them feel wanted and loved, as was the case with 13 year old “Katie,” a victim of sex trafficking in Portland.  After being wooed with gifts by a man who turned out to be a pimp, she was told she needed to repay him for all the presents he had purchased for her by dancing at one of the hundreds of strip clubs in Portland.

Current Law:

Oregon is one of thirty states that passed anti-human trafficking bills. (See Initiative Against Sexual Trafficking)  Oregon’s laws against human trafficking include:

ORS 163.263 – Involuntary Servitude – Second Degree: Encompasses forced labor by multiple means, most of which involve non-personal threats, such as deportation or unlawful debt collection;

ORS 163.264 – Involuntary Servitude – First Degree: Encompasses forced labor by means of personal threat to cause death or serious physical injury;

ORS 163.266 – Trafficking in Persons: Generally encompasses harboring, transporting, providing for, or obtaining persons who are subjected to Involuntary Servitude, or those who are financially benefiting from them; and

ORS 167.017 – Compelling Prostitution: Encompasses causing or inducing a person under 18 years of age to engage in prostitution, or compelling any person of any age to engage in prostitution.

Sentencing for sex traffickers ranges from 3 years to more than 20 years.  Currently, state efforts exist to increase the penalties for human traffickers and penalize men who solicit sex from sex trafficking victims.  (See Oregon sex-trafficking bills would increase penalties for pimps and johns. Mar. 2011, Oregon Live.com)

Conclusion:

Human trafficking for sexual exploitation is just beginning to gain more attention and understanding among communities on the West Coast.  Though efforts in Oregon to curb human trafficking and sexual exploitation are steps in the right direction, we must all remember that human trafficking is not an isolated problem or one that does not exist here in the United States.  The fact of the matter is that this is an issue that is in our own backyards and potentially impacts us all.

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