The Human Rights Blog

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.

Popularity: 8% [?]

Paul Scrom, J.D. Candidate 2012, Hofstra University

In Kiobel v. Royal Dutch Petroleum, decided on September 17, 2010, the U.S. Court of Appeals for the Second Circuit held corporations cannot be subjected to liability for Human Rights violations under the Alien Tort Statute (28 U.S.C. § 1350).  The decision was seen as a crippling blow to ATS and Human Rights litigation in the United States, especially since the Second Circuit of New York has had a reputation of being rather favorable towards ATS claims.  But, on July 8th, in Doe v. Exxon Mobil, the D.C. Circuit Court of Appeals issued a ruling contradicting the Second Circuit, and recognizing “it would create a bizarre anomaly to immunize corporations from liability for the conduct of their agents in lawsuits brought for shockingly egregious violations of universally recognized principles of international law.”  Only three days following the decision, the Seventh Circuit also joined against Kiobel and ruled in favor of corporate liability under the ATS in Flamo v. Firestone Natural Rubber.  These inconsistent Circuit decisions beg for the Supreme Court to settle the issue of corporate liability under the ATS.  The Supreme Court should find that corporations will be held responsible when its members violate the human rights of others.

Background

The Alien Tort Statute was passed in 1789 as part of the original Judiciary Act.  The statute grants original jurisdiction “of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  As long as the accused was properly served and processed in the United States, the U.S. courts could hear cases involving torts that occurred in violation of the law of nations.  For years this provision laid dormant, being called upon very rarely, until 1980 when Filartiga v. Peña-Irala was decided.

In Filartiga, the Plaintiff brought suit against Pena-Irala for wrongfully causing the death of his seventeen-year old son, which was a result of torture instructed by Paraguayan authorities.  The clever attorneys of the Plaintiff evoked the rarely used ATS in order to bring suit.  Defendant’s attempt to dismiss the case for lack of jurisdiction failed as the court held “that deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.”

The Filartiga holding lead to a revitalization of the ATS and its new use as an instrument for seeking compensation for violations of law of nations, specifically human rights.   The Supreme Court reinforced the legitimacy of ATS litigation in Sosa v. Alverez-Machain, although eventually finding there was no violation of the Plaintiff’s human rights for a “single illegal detention of [the Plaintiff for] less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment.”

In recent years, corporations have been included as defendants in ATS lawsuits for their aiding and abetting in violations of human rights law.  Unocal in Burma, Talisman Energy in Sudan, Rio Tinto in Papua New Guinea, Yahoo!, and others, have all been corporations accused of being involved with human rights violations.  Most of these cases settled or the notion of corporate liability went unopposed, and was somewhat accepted.  That was until Kiobel.

Kiobel v. Exxon: the Circuit Battle over Corporate Liability Under the ATS:

The main Plaintiff in Kiobel is the wife of one of the “Ogoni Nine” who were executed by Nigerian authorities for their protests against environmental pollution caused by oil companies, among them, Royal Dutch Petroleum.  The lawsuit filed against Royal Dutch alleged that the company aided and abetted in the suppression of protests against the company’s questionable oil development activities.  The majority ruled against the plaintiffs, rejecting corporate liability under the ATS.  They focused on a footnote to the Supreme Court’s decision in Sosa.  Footnote 20 of the Opinion reads, “[a] related consideration [for accepting a cause of action under the ATS] is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”  The court interpreted this statement (I feel, incorrectly) to mean the courts must look to international law, not domestic law, for evidence as to whether or not corporations can be held liable for violations of the laws of nations.  The court then used this footnote to analyze international customary law to conclude that it does not support corporate liability; only sovereign states and natural persons may be held liable.  Kiobel was seen as a crippling blow to ATS litigation, and many believed it would lead to its slow downfall.  But, this remains to be seen, especially since the Exxon and Firestone decisions.

In Exxon, plaintiffs, a group of Indonesian villagers, alleged Exxon security forces, who were Indonesian soldiers, murdered, tortured, raped and kidnapped local villagers.  The D.C. Circuit allowed the case to continue and rejected the Second Circuit ruling.  The court ruled that corporations can be held liable under the statute.  The Court held that the question of corporate liability must be determined by domestic law as Sosa only asked that customary international law be analyzed to determine what rights, duties, and remedies exist and are violated, not who or what is owed such rights, duties, and remedies.  Domestic law, not international customary law, governs how to react to such violations, as it is domestic laws obligation to lay out rules of procedure and evidence.  Being so, domestic law clearly illustrates that corporations must be held responsible for their transgressions and the transgressions of their agents.  The court also held that even if domestic law does not govern the question, the Kiobel court incorrectly overlooked sources of international law that point towards corporate liability, specifically the Nuremberg Trials.  The court in Kiobel argued that corporate liability was absent from the Nuremberg Trials, falsely concluding that this meant corporations like I.G. Farben could be held liable.  But, the court in Exxon explained how Farben was destroyed because of their violations of customary international law during the Nazi Regime.  The Exxon decision is lengthy, about 112 pages, and this is a short summary of the rejection of the Kiobel holding.  Please see the links below, and the actual case, for more of the court’s arguments.

In the Seventh Circuit, just days following Exxon, Judge Posner’s decision in Firestone, echoed the arguments of the D.C. Circuit, and further split the Circuits, 2-1 in favor of corporate liability (note some scholars feel the count is actually 3-1, including the Eleventh Circuit’s decision in Romero v. Drummond Co., although the decision did not give a complete analysis on the issue).  The Circuit split foreshadows the likelihood that the Supreme Court will accept the Writ of Certiorari (the request for review by the U.S. Supreme Court), filed in June by the plaintiffs in Kiobel.

Conclusion:

The Circuit split illustrates the legal complexity surrounding corporate liability for human rights violations in U.S. courts under the ATS.  From a normative perspective, corporations should be held liable for the actions of their agents, especially when they had knowledge or gave direction to such actors.  The power and influence of corporations alone makes them a dangerous entity which frequently exacerbates the evil of individuals.

Supporters of the Kiobel position fret about the courts ruining and interfering with foreign affairs, which is something the political branches (Congress & the President) are responsible for.  There is a fear of tarnishing relationships by dragging foreign corporations into U.S. courts for actions done off of U.S. soil.  This fear is not unfounded as the Indonesian government in Exxon and the Nigerian government in Kiobel have both called for dismissal of the respective cases.  But Congress has already made this decision with the passage of the ATS and its acquiescence to the development of ATS litigation.  The courts are only applying the statute as it was passed, and interpreting it accordingly, just like they do for any other statute.  Further, when these countries are involved with such activities (like Indonesian authorities guarding Exxon’s plant), shouldn’t normative values prevail?

Legally, the arguments are extremely close, and that is why there is a circuit split, which will likely lead to the Supreme Court either hearing the Kiobel appeal, or taking up Exxon or Firestone in the near future.  I believe the Exxon camp has the stronger arguments based on a textual and historical analysis of the statute, especially considering Kiobel’s overemphasis of Sosa’s footnote 20.  The need for strong international consensus under the ATS as explained in Sosa, only deals with the types of acts which are to be considered violations of the law of nations, not who is to be responsible for them.  Often, those subject to such horrible acts as torture and rape, like in Exxon, cannot obtain sufficient remedies by seeking out individual pawns of a corporate scheme.  It is up to the Supreme Court to decide whether or not the United States will be a legal venue to hear such claims.

For a wonderful in-depth legal and historical analysis of corporate liability under the ATS (although ultimately concluding against it), please read Professor Julian Ku’s paper, “The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking.”  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1721528

(note this paper was published prior to the Exxon and Firestone decisions)

For more information please watch Marco Simons, the legal director of Earthrights International, giving a speech following Kiobel on corporate liability under the ATS.

For more opinions and background please read:

Chimène I. Keitne: “Kiobel v. Royal Dutch Petroleum: Another Round in the Fight Over Corporate Liability Under the Alien Tort Statute,” available at http://www.asil.org/insights100930.cfm

John Bellinger: “DC Circuit ATS Decision in ExxonMobil Sharpens Circuit Split,” available at http://www.lawfareblog.com/2011/07/dc-circuit-ats-decision-in-exxonmobil-sharpens-circuit-split/

Karen McGregor: “Ogoni Nine hanged as Indifferent West Failed to Respond,” available at http://www.independent.co.uk/news/world/africa/ogoni-nine-hanged-as-indifferent-west-failed-to-respond-699325.html

Popularity: 9% [?]

David Prater, J.D. Candidate 2012, University of Maryland

The Special Tribunal for Lebanon (“STL”) recently published the indictment against four men accused of conspiring and carrying out an assassination against former Lebanese Prime Minister Rafik Hariri.  International and Lebanese arrest warrants have been issued for Salim Jamil Ayyash; Mustafa Amine Baderrine; Hussein Hassan Oneissi; and Assad Hassan Sabra.

The STL was constituted by the United Nations Security Council at the request of the Lebanese Government after the Cedar Revolution of 2005.  The STL is a unique experiment that gives an international tribunal jurisdiction over domestic crimes related to terrorism.  But, the publication of the indictment indicates the tenuousness of the experiment.

How an internationally constituted tribunal was given jurisdiction over wholly domestic crimes requires an historical and political examination.

Background

Lebanon is in the central Levant and is a multi-confessional society where political power is distributed among the Christian, Muslims, and Druze faiths.  Lebanon was a founding member of the United Nations, but collapsed into civil war in 1975.  During this time Syria and Israel occupied various parts of Lebanon.  It was during the occupation that Hezbollah emerged as a Shia militia to resist Israel’s occupation. Syria recognized the reach of Hezbollah and began sponsoring the organization’s activities to counter Israel.  After the Taif Agreement to end the Lebanese Civili War, Hezbollah was permitted to remain armed and operate as Lebanon’s de facto southern defenses.

Well after the end of the civil war, Syria maintained its presence with the assistance of pro-Syrian officials. Countering Syrian influence were western financed and backed politicians like Rafik Hariri.  In 2004, Hariri, serving as Prime Minister, protested the election of pro-Syrian President Emil Lahoud.  Hariri’s opposition to near plenary Syrian influence and occupation laid the foundation for the emergence of a broad anti-Syrian coalition from Lebanon’s many disparate groups.

On February 14, 2005 over 1,000 kilograms of TNT detonated in van near Hariri’s motorcade.  Hariri and 21 others died from the blast and over 200 by-standers were injured.  This event is thought to have inspired the Cedar Revolution where popular sentiment protests brought an end to Syria’s near 30 year military presence.  However, it is likely that Syrian intelligence operatives continue to operate inside Lebanon.  The full U.N. investigation and report on the Hariri assassination can be read here.

Backed by a still strong anti-Syrian coalition, Lebanon requested the United Nations Security Council to investigate and constitute an international tribunal to try the culprits behind Hariri’s assassination and other political killings that followed.   The Security Council passed resolution 1664 in March 2006 to constitute the tribunal.

In July 2006, Hezbollah, still a close ally of Syria, conducted a cross border raid into Israel capturing and killing five Israel soldiers.  Israel responded with military campaign against Hezbollah and Lebanon that devastated public infrastructure but failed in its objective to dismantle Hezbollah.  The war fractured public opinion over Hezbollah’s role and split the once strong anti-Syrian coalition along largely confessional lines.

Hezbollah emerged from the war politically stronger in Lebanon and became part of the government in 2008.  Meanwhile, the tribunal continued its investigation and the likelihood of Hezbollah’s involvement in Hariri’s assassination became more apparent.  In January 2011, Hezbollah left government causing the coalition that emerged after Hariri’s assassination to collapse.  Hezbollah replaced the coalition with its own in June and backed Najib Mikati as prime minister.

All the while, Hezbollah has criticized the STL as a U.S. and Israeli plot to discredit Hezbollah and exert undue influence in Lebanon.

It is in this context that the STL sealed an indictment against four men with associations to Hezbollah and only weeks later requested the tribunal to amend the restrictions on the indictment.

An Uncertain Future?

The STL was constituted with overwhelming Lebanese and international support.  This changed, however, after the emergence of Hezbollah as a powerful member of the government.

The indictment names four Hezbollah members who conspired in the assassination of Hariri.  The prosecutor’s initial request to seal the indictment was based on an assumption of a cooperative Lebanese security sector that would detain and deliver the accused.  Moreover, the indictment revealed a complex network of cellular activity and other crimes by the accused and pointed toward a larger conspiracy, likely including other members of Hezbollah.

Lebanon failed to arrest the accused and the STL published the indictment with the names of the four accused.  Hezbollah’s reaction was a predictable denunciation of the STL.  Now, the STL has publically committed itself to trials, whether the accused are present or not (trials in absentia are abhorred in common law jurisdictions, other countries, like Lebanon, permit such trials).  The independent defense office at the STL is uncertain about whether the accused will appear or not.

What is unclear at this point is how the indictment will reflect on Hezbollah in Lebanon.  The unsealing of the indictment could have a ‘name-and-shame’ effect, where perpetrators become pariahs in the international community, and domestically as well in this case.  On the other hand, it could play right into Hezbollah’s hand and provide more ammunition for Hezbollah’s calls to no longer fund the STL.  A trial in absentia would similarly be fodder for Hezbollah.

What is clear is that the broad-based coalition that supported the creation of the STL is no longer in power and western-backed interests are marginalized.  But, Syria’s domestic problems with protestors could mean that Hezbollah will have to find legitimacy and independence in a multi-confessional Lebanon.  Such legitimacy could be difficult if Israel maintains it current posture and declines to react over-aggressively to provocative incitements and challenges as it did in 2006.

The indictment could provide the catalyst to reconstitute a broad-based anti-Syrian coalition; or, it could be an embarrassing miscalculation that risks the credibility of the STL.

Popularity: 9% [?]

Sumbu Chantraine Temo, President of Amnesty International at Stockholm University.

Colonel Nyiragire “Kifaru” Kulimushi, known as Congo’s “rape Colonel” surrendered in early July together with 116 of his soldiers amid accusations of mass rape and looting.

Kifaru was a former member of the militia Maï Maï, which played a significant, and sometimes problematic, role in the Second Congo War. As a result of a peace agreement and palaver, the Maï Maï militia joined Congo’s national army, the Armed Forces of the Democratic Republic of Congo (FARDC) along with other rebel groups in 2009.

At a military training course in South Kivu in late spring 2011, Kifaru learned that he was to be demoted due to a restructuring within the FARDC.  Unwilling to accept the FARDC’s decision, Kifaru and his men defected as a means of protest. In the days that followed, it is alleged that Kifaru and his soldiers looted villages and committed mass rapes.  NGO’s estimate that approximately 250 women were raped between June 10-12 in villages of Nyakiele, Kanguli and Abala, all in eastern Congo.

Because the rapes garnered international media attention, government spokesman Lambert Mende, DRC’s Minister of Communications, declared that the national army would begin a manhunt for Kifaru. The army soon managed to locate Kifaru, and he and his men surrendered.

According to AFP, Colonel Sylvain Ekenge, spokesmen for FARDC, indicated that Kifaru and his men were ordered to surrender and did so with no demands. “He did not negotiate the conditions of his surrender because there were no conditions to negotiate…“[w]e gave him the order to come out and he came out of the bush.”

“He said he is afraid and that he had done nothing,” Ekenge added.

A BBC article dated July 8, 2011, reported that the UN held the FARDC responsible for the mass rapes.  “[T]he rapes highlighted poor discipline in the army, and the failure to properly vet rebels integrated into the army following a peace deal to end years of unrest.”

Though government authorities are watching the alleged perpetrators, Kifaru and his men are not in detention, as AFP reported that the soldiers are located in an army base in wait for an investigation.  As Ekenge told AFP, ”[Kifaru] remains at the disposal of the authorities while waiting for the outcome of a military hearing. He is not in detention.” (See DR. Congo colonel and men accused of mass rape surrenders. AFP, July 8, 2011)

Not the first time…

This is not the first time Kifaru has been accused of involvement in mass rapes. On New Year’s Day 2011, a group of soldiers led by Kifaru’s deputy, Lieutenant Colonel Kibibi Mutware, attacked Fizi, a village in South Kivu.  This time, approximately 50 women were raped.

After an investigation, Colonel Kibibi and his group of soldiers were arrested and later convicted after a hearing in military court.  Nine of Kibibi’s men were sentenced for crimes against humanity. Colonel Kibibi and three other officers were sentenced to 20 years in prison. Five other officers were sentenced for between 10 and 15 years imprisonment for the same crime. One man was exonerated whilst another one will be charged in a juvenile court.

Brief history of rape in eastern Congo.

Rape as a tactical weapon conflict in DRC can be traced back to the 1994 genocide in neighbouring Rwanda. Likewise, during the Congo’s eight year Civil War, rape was used as key weapon of war, just as it had been in neighbouring Rwanda.

Although the spillage from the Rwandan conflict is more or less settled the eastern part of Congo, the violence continues because of the region’s vast minerals resources. Today, the Congolese army, rebels, local militias, and warlords continue to vie for control over the mines. Rising conflicts result in risks to the civilians lives and personal safety.

“Because one mine alone can export upwards of ten million dollars worth of minerals per month, rape is the cheapest and easiest means to keep civilians intimidated, humiliated and in a state of constant fear, thus making them completely powerless against the rebels.  Civilians who favor an opposing rebel group are often times punished with rape by the group seeking power, often done in a public way in order to shock and destroy the local community.” (See UN admits peacekeeping efforts failed to protect civilians of Eastern Congo from coordinated mass rapes, The Human Rights Blog, Sept. 30, 2010)

In July 2011, the United Nations published a report on mass rapes that occurred last year in villages in North Kivu. The report states that 387 people were raped; among the victims were 44 were children and 23 men.

Experts say that the extent of sexual violence in Congo is to be regarded as a strategic move by the armed forces. The rapes take brutal forms, working as a weapon intended to paralyze, degrade, and weaken communities.

Many of the rape victims are rejected by their husbands and families and often find themselves without legal support. Although men are also victims of rape, it is yet a greater taboo that is rarely discussed.  “A recent study found that 24% of men and 39% of women have been raped in Congo while many more cases go unreported.” (See video Nation of Vice – DRC, Journeyman Pictures, 2010.)

Recent reports also show that soldiers and civilian workers in MONUSCO have also been guilty of sexual exploiting the Congolese women by offering food and shelter in return for sex.  (See Mass Rape: Time for Remedies, Amnesty International, pg. 15.)

Amnesty International says that the frequency and brutality of the mass rapes is due, in large part, to the government’s inability to find and prosecute human rights abusers. (See New Mass Rapes in DRC are Result of Horrific Failure of Justice, Amnesty International, June 23, 2011)  However, some rule of law experts on the ground point to barriers in the Congo’s Constitution, particularly Article 166, which prohibits charges from being brought against government officials without an absolute majority of the National Assembly.  (See Constitution of the Democratic Republic of Congo)

On the right path:

In light of the recent convictions of Colonel Kibibi and others as well as the surrender of Colonel Kifaru, the DRC seems to be moving in a more positive direction in preventing future sexual violence against civilians.  As Amnesty International’s DRC Campaigner, Claire Morclette, said, “[The Kibibi] conviction is a step in the right direction…[f]or decades crimes like this have gone unpunished in DRC, their perpetrators never bought to justice. However much remains to be done to ensure victims of gross human rights violations in the country receive justice.” (DR CONGO COLONEL’S RAPE CONVICTION IS FIRST STEP ON ROAD TO JUSTICE, Amnesty International: February 23, 2011)

KÄLLA – Bibliography:

RDC : “Kifaru” et 116 soldats accusés de viols massifs se sont rendus, Jeune Afrique, Aug. 7, 2011.

En RDC, le «colonel Kifaru», présumé coupable de 250 viols, entendu par l’état-major, RFI, 09 Juillet 2011.

DR Congo hunting for colonel suspected of mass rape. The African Confidential.

Congo’s shame: Rape used as tool of war. The Washington Times.

When Rape Becomes a Game. Huffington Post via Enough Project, July 6, 2011.

Popularity: 12% [?]

THRB Contributor, Elizabeth Hebert

For those who have traveled to or lived in the Middle East, there is one thing that will inevitably catch your eye. Surprisingly, it is the prevalence of migrant domestic workers in nearly all venues imaginable. From my first visit to the Middle East in 2008 to my second time in 2010-2011, I have had many conversations with people who were shocked and appalled at the mistreatment of migrant domestic workers by their Arab employers. I will emphasize that not all migrant domestic workers are mistreated by their employers. However, after working and researching with Ms. Kathleen Hamill, Esq., through Kafa (meaning “Enough”), a local gender-based violence and exploitation prevention organization, we concluded that the migrant domestic worker system in Lebanon leaves too much room for abuse, neglect, and in some cases forced labor or slave-like conditions.

Background and findings

Lebanon has a population of 4 million people and employs 200,000 migrant domestic workers to do everything from basic household cleaning and child-care to in-home elderly and disabled persons care. This means that there is approximately one Filipina, Sri Lankan, Bengali, Malagasy, Ethiopian, or Nepalese worker to every 10 Lebanese persons. The goal of Ms. Hamill’s study, entitled, ‘Trafficking of Migrant Domestic Workers in Lebanon: A Legal Analysis,’ was to explore the link between human trafficking and migrant domestic labor in Lebanon.  As Ms. Hamill explains, “…the aim [of the study] is to identify structural factors that create systemic vulnerabilities for migrant domestic workers during their migration to Lebanon and their work upon arrival in the country.” (See Trafficking of Migrant Domestic Workers in Lebanon: A Legal Analysis, pg. 1)

According to the United Nations Office on Drugs and Crime, human trafficking is defined “as an act by means of coercion or deception for purposes of exploitation including forced labor, servitude, slavery or practices similar to slavery.” (Id., pg. 46)  Some of the structural factors that have contributed to the link between human trafficking and migrant domestic labor in Lebanon are: 1.) The sponsorship or “kafala” system; 2.) The recruitment process, and 3.) The lack of labor protection and legal redress. These factors create a situation of vulnerability for women, and are possible contributing factors to human trafficking and forced labor, servitude, or slavery.

The challenges with the “kafala” system stem from the fact that each migrant worker must be linked or sponsored by a specific Lebanese employer. Without this sponsorship, migrant workers would not have the proper paperwork or visa to maintain a legal status in Lebanon. Essentially, each migrant worker is at the mercy of her employer, and is often subject to restrictions on her movements and living situation. Because their movements are restricted, it can contribute to a situation of forced labor, and therefore be linked to human trafficking.

The primary problem with the recruitment of migrants is the calculated deception that inevitably occurs at each stage of the process. This duplicity is most often seen in negotiations of expected salary, expected contract life, and expected workload.  Many countries, cognizant of the fraudulent hiring practices of many Lebanese employers, have banned their female citizens from leaving their home country to work in Lebanon.  These restrictions, however, have not stopped hundreds of women from circumventing the bans and getting to their destination. Not surprisingly, the deceptive recruitment process increases the migrant domestic workers’ vulnerability to human trafficking.

Finally, issues with the lack of labor protection and legal redress simply come from the fact that Lebanese labor laws do not protect migrant domestic workers’ rights. There are virtually no legal resources available for the women who face abuse or mistreatment in their employer’s home.

Although there have been other studies detailing the poor conditions of migrant domestic workers in Lebanon, Ms. Hamill’s pilot study sought to determine if the workers were being trafficked into a situation of forced labor, servitude, or slavery, though this is very difficult to determine as modern legal definitions of slavery are vague, at best.

After conducting 100 interviews with migrant domestic workers in Lebanon, in addition to interviews with stakeholders in the community, Ms. Hamill concluded that women migrants were indeed vulnerable to human trafficking.  She writes:

“[f]uture work and research is needed in this area. It is urgent that recognition be paid to migrant domestic workers in Lebanon who are vulnerable to human trafficking.  Research will serve to diagnose the precarious situation of migrant domestic workers in Lebanon from a human rights angle. Accordingly, such efforts may also enable the use of international legal frameworks and instruments that Lebanon has already endorsed – and could develop further – vis-à-vis human trafficking, in defending and protecting migrant domestic workers from this point forward.” (Id., pg. 47)

Current initiatives to help migrant workers in Lebanon

This is a complex and sensitive issue that cannot easily be solved. However, thanks to the work of activists on the ground in Lebanon, there have been some small improvements to the conditions of migrant domestic workers.  Wissam Al-Saliby’s blog, Ethiopian Suicides, documents reported suicides by workers in Lebanon and brings awareness to their vulnerable situation.  Nasawiya and Migrant Workers Task Force (MWTF) hosts training sessions for Arab employers and English and Arabic classes for the migrant domestic workers.

Conclusion

While grassroots organizations are on the right track in helping to ameliorate the situation of migrant domestic workers in Lebanon, it is also important to address and improve the inherent structural issues of the sponsorship system itself. This may include allowing migrant domestic workers to freely change employers without being bound to a single employer. In addition, it is necessary to follow through with the prosecution of abusive employers and private agencies in cases of slavery, forced labor, or confiscation of identity documents.

As Ms. Hamill’s study concludes, this is a complex situation and therefore, questions remain surrounding these issues.  What is clear is the importance of taking immediate action and bringing global awareness to the plight of Lebanon’s migrant domestic workers in order to prevent the further abuse of vulnerable human beings caught in a corrupt system.

For a thought-provoking perspective, please watch “Being a Domestic Worker: Sri Lankiete Libanieh,” a short satire film about a Sri Lankan woman as the “Madame” and a Lebanese woman as the maid.

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