Trafficking and smuggling: a very short introduction

Lina comes from a poor family in Cambodia. At the age of nine, her parents entrusted her to an acquaintance who said she could find Lina work in Thailand. The woman promised to send Lina’s parents part of her wages to help support their family. In Bangkok, Lina stood for long hours outside nightclubs in the red-light district selling flowers and candy to tourists. Her trafficker took her earnings, and beat her when sales were low .

When Peter arrived in London, a man was waiting for him. He took Peter to Peterborough, the place of his future life and work. He was supposed to work for one Roma family and to live at their place in a small room with 4-6 other men working for them as well. Right away, they took his ID… Peter didn’t see his ID again. He became a person without identity, with no possibility to escape. He started to work with some other people, doing harvesting. They would work 12 to 16 hours per day, receiving poor food once per day and not getting enough of sleep at night. After working outside, Peter often had to do clean the family’s house. Members of the family started to be aggressive, threatening their “slaves” and blackmailing them.

Perhaps the most chilling is an interview with an imprisoned trafficker. He looks at the camera nervously, recounting his exploits with a shy smile… “I used my fist. I was, at that time, more youthful… So I beat them with my fists and my feet…” He giggles nervously and continues, “No, but I think that they will have this nightmare for the rest of their lives. Some of them manage to change, but they will never be normal women.” His lips twist into a smile, a slight shrug of his shoulders.

And this is a business that earns 150 billion dollars a year.

July 30 was World Day Against Trafficking in Persons. It’s a way to raise awareness, not in a student activist kind of way that will end in a change.org petition, but as an opportunity to discuss something that’s very important and also very often poorly described. When we talk about trafficking, usually two scenarios come up: migrants paying to be brought across the Mediterranean; and sex trafficking. A google search also brings up modern day slavery, child labour in developing countries, and other kinds of phenomena. The problem is, much of this isn’t actually trafficking. Or of it’s trafficking, it’s also other things.

1. Trafficking and smuggling are not the same thing

People smuggling is basically receiving money to move people countries where they are not nationals or residents. It’s criminalized in most places, and there is also a convention (Smuggling of Migrants Protocol) that includes an obligation to criminalize smuggling. But smuggling is solely about the “procurement of… illegal entry”. We are presuming that all of this were voluntary – if the entry were legal, it wouldn’t be a smuggler, it would be a travel agency. (Except, of course, if someone is a refugee, they may not be penalized for illegal entry, and frequently there is no legal avenue for refugees to use, so they must perforce use smugglers)

Trafficking, on the other hand, involves deceiving someone and exploiting them. The official definition is very long but very worth considering:

Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs

So, people who have been trafficked have been (a) deceived, and (b) exploited, or intended to be exploited. As an example, if person A wants to enter country X, where they are not a resident or national, in order to get a better job and pays person B to take them there, that’s smuggling. If person A wants to get a better job in the city, but is tricked by person B, who instead transfers person A to country X where person A is forced into prostitution, that’s trafficking. A typical story to entice trafficking victims is to offer work in a foreign country, promising high wages and a good life. Frequently, the victim will incur “costs” for the journey which they are then expected to “earn back” by working for the trafficker or associates.

The two terms are often conflated. And in fact, a smuggler, who is transporting people to another country, might be transporting trafficked people (if the smuggler had no idea, it’s smuggling; if they knew that the person was trafficked, it’s trafficking). For example, a recent article from the Guardian talks about the high number of trafficking victims among migrants arriving to Europe:

“The trafficking of Nigerian women from Libya to Italy by boat is reaching “crisis” levels, with traffickers using migrant reception centres as holding pens for women who are then collected and forced into prostitution across Europe, the UN’s International Office for Migration (IOM) warns.  About 3,600 Nigerian women arrived by boat into Italy in the first six months of this year, almost double the number who were registered in the same time period last year, according to the IOM.”

2. Economic migrants and refugees are not the same thing, but both can be victims of trafficking

Economic migrants are people who are seeking a better life elsewhere. Refugees are people fleeing war and persecution. Sometimes, there is overlap, particularly in countries where poverty is caused by systematic negligence or targeting specific groups.

But both economic migrants and refugees often share the characteristic of being desperate to leave and, frequently, in possession of few resources with which to leave. They may be more inclined to take seemingly appealing offers of work elsewhere, or in their desperation place themselves in unscrupulous hands. UNHCR has quite a lot to say on the intersection of refugees and human trafficking, including highlighting the fact that some people may have started out as migrants, but fell victim to trafficking, and could be at risk of persecution if they were to go back to their home countries due to threats by the traffickers, which would then make them refugees. Not all refugees are trafficked and not all trafficking victims are refugees, but there is frequently overlap. The essential questions are: (a) why they left; (b) how they traveled and under what circumstances; and (c) what would happen if they go back.

Desperation also breeds exploitation:

Young people in refugee camps in Calais and Dunkirk are being sexually exploited and forced to commit crimes by traffickers, according to a Unicef report.

The document, which draws on six months of interviews and is due to be published on Thursday, paints a disturbing picture of the abuse of unaccompanied minors in camps in northern France. It says children are being subjected to sexual violence by traffickers who promise passage to the UK.

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3. Trafficking isn’t only about sex trafficking

It makes for the best headlines and the most salacious stories, but there are lots of kinds of trafficking. Forced labour takes different forms, including debt bondage, trafficking and other forms of modern slavery. The victims are the most vulnerable – women and girls forced into prostitution, migrants trapped in debt bondage, and sweatshop or farm workers kept there by clearly illegal tactics and paid little or nothing.  Forced labour and modern-day slavery account for almost 70 percent of trafficked persons: almost 21 million people are victims of forced labour, trapped in jobs which they were coerced or deceived into and which they cannot leave. That’s approximately the population of Switzerland and Belgium combined (or 3 out of every 1,000 people).

Facts and figures

  • Almost 21 million people are victims of forced labour – 11.4 million women and girls and 9.5 million men and boys.
  • Almost 19 million victims are exploited by private individuals or enterprises and over 2 million by the state or rebel groups.
  • Of those exploited by individuals or enterprises, 4.5 million are victims of forced sexual exploitation.
  • Forced labour in the private economy generates US$ 150 billion in illegal profits per year.
  • Domestic work, agriculture, construction, manufacturing and entertainment are among the sectors most concerned.
  • Migrant workers and indigenous people are particularly vulnerable to forced labour.
  • 18.7 million (90 %) are exploited in the private economy, by individuals or enterprises. Of these, 4.5 million (22 per cent) are victims of forced sexual exploitation and 14.2 million (68 per cent) are victims of forced labour exploitation in economic activities, such as agriculture, construction, domestic work or manufacturing.
  • 2.2 million (10%) are in state-imposed forms of forced labour, for example in prisons, or in work imposed by the state military or by rebel armed forces.
  • 5.5 million (26 %) of victims are below 18 years.
  • 9.1 million victims (44 %) have moved either internally or internationally. The majority, 11.8 million (56 %), are subjected to forced labour in their place of origin or residence. Cross-border movement is heavily associated with forced sexual exploitation.

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4. Trafficking happens right in your backyard: in Europe, the US, Canada, Australia, and elsewhere

According to IOM, the Developed Economies and European Union have 1.5 million (7 per cent) forced labourers. “EU authorities registered 15,846 victims of human trafficking in 2013-14, including 2,375 children, but the report’s authors believe the true number of victims is far higher. More than two-thirds (67%) of people were trafficked into sex work; about one-fifth (21%) were put into forced labour, often as agricultural workers, a form of slavery that disproportionately affected men. The remainder of trafficking victims faced an equally grim catalogue of exploitation, ranging from domestic servitude to forced begging. […] More than two-thirds of the identified victims were EU nationals, with the largest numbers coming from Romania, Bulgaria, the Netherlands, Hungary and Poland. The remainder came from all over the world, with Nigerians, Chinese and Albanians especially prominent.”

Additional examples:

 

 

 

Articles of interest:

 

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Focus on South Sudan: “inaction, abandonment of post and refusal to engage”

Photo: Al Jazeera

South Sudan violence leads 60,000 to flee, U.N. says (CNN, 3 August 2016)

“Violence in South Sudan over the past three weeks has prompted a massive flight of refugees into neighboring countries, according to the United Nations.

More than 60,000 people, most of whom are women and children, have fled the country since fighting began at the end of June, the U.N.’s refugee agency UNHCR reported on Tuesday.

“The refugees have brought to us very disturbing reports,” UNHCR Spokesman Melissa Fleming said at a briefing in Geneva. Armed groups “are looting villages, murdering civilians, and forcibly recruiting young men and boys into their ranks,” Fleming said. “We are very concerned, and are appealing for parties to move back to the peace agreement.””

 

South Sudan to get new international peacekeeping force (BBC, 6 August 2016)

“South Sudan’s government has agreed to let in a new international protection force to try to save a peace deal. Ethnic clashes last month left at least 300 people dead and threatened to revive a civil war that has killed tens of thousands. A 12,000-strong UN mission in South Sudan was unable to prevent attacks.

The announcement was made by the East African regional body, Igad, and confirmed by South Sudan cabinet minister Dr Martin Elia Lomuro. President Salva Kiir had previously dismissed the idea of an additional force.”

 

South Sudan Situation: Regional Emergency Update #3 (25 – 31 July 2016) (UNHCR, 31 July 2016)

  • “The political and security situation inside South Sudan remains fragile and unpredictable. UNHCR continues to provide assistance in Juba as the situation allows, and other areas of operation remain functional.
  • In Uganda, a total of 53,531 South Sudanese refugees have arrived in July, more than the total arrivals in the first six months of 2016. Some 65% of the arrivals are children, and 88% are women and children. The daily rate of arrival has decreased slightly, but continues to number in the thousands.
  • South Sudanese refugees continue to seek asylum in other countries: In Sudan, over 9,000 South Sudanese refugees have arrived in July, an increase on May and June arrivals, but lower than the monthly arrivals reported in the first quarter of 2016. DRC received an influx of 1,653 new arrivals in mid-July. The number of arrivals to Kenya has increased in the past week, though is still low compared to the influx in Uganda”

 

South Sudan: Food Insecurity – 2015-2016 (ReliefWeb, repository)

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“South Sudan is facing unprecedented levels of food insecurity, as 2.8 million people — nearly 25 percent of the country’s population — remain in urgent need of food assistance, and at least 40,000 people are on the brink of catastrophe, three UN agencies warned today. (WFP, FAO, UNICEF, 8 Jan 2016)

Civil strife and unfavourable rains have further reduced crop production in South Sudan, contributing to a cereal deficit of 381,000 tonnes — 53 percent greater than in 2015 — and aggravating the already severe food shortages, two UN agencies warned today…The crisis in South Sudan is marked by alarming levels of hunger. Some 5.8 million people, or nearly half of the country’s population, are unsure where their next meal will come from, while the rate of severe food insecurity has now reached 12 percent, double the rate of one year ago. (FAO, WFP, 5 Apr 2016)”

 

Peacekeepers made major errors that contributed to South Sudan massacre, U.N. report finds (Washington Post, 6 Aug 2016)

“On Feb. 17, fighting broke out within the U.N. Protection of Civilians Site in the city of Malakal, first between young men from rival ethnic groups who had managed to smuggle guns through holes in the fence. Then the violence escalated after heavily armed government forces entered the camp.

A summary of the United Nation’s “board of inquiry report,” released Friday, said the organization and its peacekeepers failed through a “combination of inaction, abandonment of post and refusal to engage.”

In other words, some peacekeepers, whose most prominent mandate is to protect civilians, simply ran away once they were tested, abandoning sentry posts. Other peacekeepers demanded written permission to use their weapons, even though their U.N. mandate clearly gives them that authority.”

 

‘Where will we run this time?’ South Sudanese civilians living in a displacement camp fear U.N. peacekeepers can’t protect them from a massacre (Washington Post, 6 August 2016)

“In February, fighters carrying AK-47s and grenade launchers broke into the Malakal camp. As many as 50 people were fatally shot, burned alive in their tents or crushed by panicking crowds while U.N. peacekeepers fled their posts. Even the United Nations acknowledged its troops’ failure.

For civilians in the camp, it was like trying to escape from a prison set aflame, the barbed-wire fences penning in wailing mothers and children with swarms of gunmen.

Mayik eventually managed to flee through a large metal barrier, known as Charlie Gate, into the U.N. staff compound next door, which was protected by additional layers of razor wire.”

 

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Photo: Washington Post

 

South Sudan’s government forces committed widespread violations in July fighting (UN, 4 August 2016)

“He said that information received by UN human rights officers suggests hundreds of fighters and civilians were killed during the initial fighting. While some civilians were killed in crossfire between the fighting forces, others were reportedly summarily executed by Government (SPLA) soldiers, who appear to have specifically targeted people of Nuer origin.

In two separate incidents on 11 July, SPLA soldiers reportedly arrested eight Nuer civilians during house-to-house searches in Juba’s Munuki area and took them to two nearby hotels, where they shot four of them. On the same day, SPLA soldiers broke into another hotel where they shot and killed a Nuer journalist.

At least 73 civilian deaths have been catalogued so far by the UN, but it is believed the civilian death toll may turn out to be much higher. The UN was denied access to some of the hardest-hit areas in the days following the conflict and a number of restrictions on movement remain in place.”

 

South Sudan: UN radio reporter held incommunicado for nearly two years (Reporters Without Borders, 3 August 2016)

“A reporter for Radio Miraya, a radio station operated by the United Nations Mission in South Sudan (UNMISS), George Livio is being held incommunicado at the Juba headquarters of South Sudan’s intelligence agency. He has not been formally charged and has not been able to see a lawyer or relatives since his arrest. Only UNMISS representatives have been able to visit him.

RSF points out that, by holding Livio incommunicado and arbitrarily, the authorities are violating article 64 of South Sudan’s code of criminal procedure, which says: “A person arrested by the police as part of an investigation, may be held in detention, for a period not exceeding twenty-four hours for the purposes of investigation.””

 

South Sudan: UN reports campaign of killing and rape (Al Jazeera, March 2016)

“Children and the disabled in South Sudan have been burned alive and pro-government militia allowed to rape women as a form of payment, a new UN report has said.

The investigation accused all sides in the country’s civil war of targeting civilians for murder and rape but said the army and government-allied forces were most to blame for what it described as “one of the most horrendous human rights situations in the world”.

“The report contains harrowing accounts of civilians suspected of supporting the opposition, including children and the disabled, killed by being burned alive, suffocated in containers, shot, hanged from trees or cut to pieces,” the UN human rights office said in a statement on Friday.”

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Civilians taking shelter at the UN compound. Photo: UN

Focus on Australia: Go to Hell, go directly to Hell. Do not pass go, do not collect asylum in Australia

Photo: Australian Refugee Council’s 2016 calendar.

 

Australia: Appalling Abuse, Neglect of Refugees on Nauru (Human Rights Watch / Amnesty)

About 1,200 men, women, and children who sought refuge in Australia and were forcibly transferred to the remote Pacific island nation of Nauru suffer severe abuse, inhumane treatment, and neglect, Human Rights Watch and Amnesty International said today. The Australian government’s failure to address serious abuses appears to be a deliberate policy to deter further asylum seekers from arriving in the country by boat.

Refugees and asylum seekers on Nauru, most of whom have been held there for three years, routinely face neglect by health workers and other service providers who have been hired by the Australian government, as well as frequent unpunished assaults by local Nauruans. They endure unnecessary delays and at times denial of medical care, even for life-threatening conditions. Many have dire mental health problems and suffer overwhelming despair – self-harm and suicide attempts are frequent. All face prolonged uncertainty about their future.

“Australia’s policy of exiling asylum seekers who arrive by boat is cruel in the extreme,” said Anna Neistat, senior director for research at Amnesty International, who conducted the investigation on the island for the organization. “Few other countries go to such lengths to deliberately inflict suffering on people seeking safety and freedom.”

By forcibly transferring refugees and people seeking asylum to Nauru, detaining them for prolonged periods in inhuman conditions, denying them appropriate medical care, and in other ways structuring its operations so that many experience a serious degradation of their mental health, the Australian government has violated the rights to be free from torture and other ill-treatment, and from arbitrary detention, as well as other fundamental protections, Human Rights Watch and Amnesty International said.

‘We are dead souls in living bodies’: Australia accused of abusing refugees (CNN)

Daily violence, suicide attempts and children left without medical treatment were among some of the allegations documented by Amnesty International and Human Rights Watch during a visit to Australia’s detention center on the remote Pacific Island of Nauru in July.

Australia Allows Abuse of Refugees to Deter Others, Rights Groups Say (NYT)

 “The Australian government is commissioning the abuse of these people,” Anna Neistat, a senior director for research at Amnesty International who spent five days on Nauru in July, said by telephone from Paris on Wednesday. “It pays for the companies that detain the refugees, it pays for the guards, and it fails to provide adequate medical care. Australian taxpayers are funding it. And the world does not know this place exists.”

See also: Australia deliberately ignores refugee abuse: report (Al Jazeera)

Two leading rights groups accuse Australia of ignoring abuse to deter people from trying to travel to the country.

Australia – liable for criminal prosecution

It should be noted that while Australia’s policies might be among the more egregious, few Western countries have clean hands when it comes to treatment of migrants, asylum-seekers, and refugees.

The United Nations has found that Australia’s immigration detention regime breaches international law, amounting to arbitrary and indefinite detention, and that men, women and children are held in violent and dangerous conditions.

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It’s not just in Greece that refugees are stranded (IRIN)

Indonesia had long been a transit country for thousands of asylum seekers trying to reach Australian shores. But Australia launched Operation Sovereign Borders in September 2013, policing its waters and turning back boats with such efficiency that it has all but blocked off the route. Several hundred new asylum seekers, however, are still arriving in Indonesia every month. An ever-increasing number are now spending years in limbo in a country that neither recognises them as refugees nor offers any possibility of local integration.  Resettlement to a third country is the only option for most of the nearly 14,000 asylum seekers and refugees now stranded in Indonesia (up from 10,000 two years ago). Australia used to be the country that accepted the majority of refugees in Indonesia for resettlement, but now it only takes those who registered there before July 2014.  Other countries with resettlement programmes, many of them preoccupied with the refugee exodus from Syria, have done little to help.  With no right to work and little support available from the UN’s refugee agency, UNHCR, many new arrivals simply hand themselves over to the Indonesian authorities knowing that at least they’ll be fed and sheltered while they’re detained.

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Australia ordered to resettle nearly 900 asylum seekers held on Manus Island detention centre after PNG ruled the centre illegal (Trust.org)

The asylum seekers come from across the Middle East and Asia predominately, with Afghanistan, Iran, Pakistan accounting for the bulk. Some have been held in detention for several years. Lawyers for the 898 Manus island detainees have asked the Supreme Court for compensation of 1,500 kina ($462.75) for every day they were held illegally. The Supreme Court said it would call on Australia to provide a representative on Thursday to provide details on a resettlement plan.

See also: The cost of Australia’s asylum policy

Country Reports on Human Rights Practices for 2015 Australia (US State Department)

The main human rights problems were domestic violence against women and children, particularly in indigenous communities; indigenous disadvantage; and policies affecting asylum seekers, including detention and detention center conditions for some attempting to reach the country by sea.

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Continue reading Focus on Australia: Go to Hell, go directly to Hell. Do not pass go, do not collect asylum in Australia

Now you have refugees, what are you meant to do with them? A look at the travaux préparatoires on the “lawful stay”, rights to primary education and employment

Following our Happy Birthday wish to the 1951 Convention, we gave a very short introduction to some of the interesting bits of that Convention.  Here, we discuss some of the elements in the Convention, with a look back at the Travaux Préparatoires. The travaux préparatoires provide a look at what each of the States parties negotiating the treaty thought about the wording of each of the Articles, and a discussion on the meaning or intention of many of the provisions.

Convention standards for juridical status, employment, welfare,  and administrative measures such as freedom of movement

On the subject of welfare, the Convention has several articles, dealing, respectively, with rationing, housing, public education, public relief, and labour legislation and social security (articles 20 through 24). So does that mean that as soon as someone shows up, they are entitled to every benefit of one’s generous welfare society?

Not precisely. Interestingly, the Articles make a few distinctions: some articles require that you treat refugees the same way as you treat nationals, and others require that you treat refugees as well as possible and/or not worse than other aliens in the same circumstance. Some of the articles make a distinction between refugees and refugees lawfully staying in their territory. Let’s take some examples:

  Refugees Refugees lawfully staying
Accord “the same treatment as nationals”
  • Rationing, “Where rationing exists, which applies to the population at large and regulates the general distribution of products in short supply” (Art. 20);
  • Public elementary education (Art. 22(1));

 

  • Public relief and assistance (Art. 23);
  • Labour legislation and social security: laws and regulations pertaining to working conditions; social security; compensation/redress for occupational accidents or death (Art. 24(1)).

 

Accord “the most favorable treatment accorded to nationals of a foreign country, in the same circumstances”
  • Right of association (Art. 15);
  • Wage-earning employment (Art. 17(1)).
Treatment “as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances:
  • Movable and immovable property (Art. 13);
  • Education other than elementary, “in particular as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships”. (Art. 22(2)).
  • Self-employment , “the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies” (Article 18);
  • Liberal professions, “who hold diplomas recognized by the competent authorities of that State, and who are desirous of practicing a liberal profession,” (Art. 19(1));
  • Housing, “So far as the matter is regulated by laws or regulations or is subject to the control of public authorities” (Art. 21).

What do we mean by lawfully staying?

The distinction between refugees (generally) and refugees lawfully staying in the territory is one made throughout the 1951 Convention. According to the travaux préparatoires:

[T]he mention of ‘refugees’ without any qualifying phrase was intended to include all refugees, whether lawfully or unlawfully in the territory. (Art. 20)

The expression ‘lawfully within their territory’ throughout this Draft Convention would exclude a refugee who while lawfully admitted has overstayed the period for which he was admitted or was authorized to stay, or who has violated any other conditions attached to his admission or stay.’ (TP, Art. 15)

The discussion around “lawfully staying” draws a distinction between “lawfully staying”, “unlawfully staying”, and “lawfully in (but not resident of)”. It is related to the manner of entry, and the final phrase resulted at least partially from difficulties in translating French terms such as résidance habituelle and se trouvant régulièrement into English, because of differences in the meaning between résidance and the somewhat more permanent residence (domicile and sojourn were suggested as possible alternatives). The same can be inferred from Article 31 (“Refugees Unlawfully in the Country of Refuge”), which prohibits States from imposing penalties on those who enter or are in the territory “without authorization”. Interestingly, Article 31(2) discussions what restrictions of movement may be applicable “until their status in the country is regularized or they obtain admission into another country.” But there is no requirement for permanent asylum or a specific legal status of refugees.

The Travaux conclude with the following definition:

It results from the travaux préparatoirs that any refugee who, with the authorization of the authorities, is in the territory of a Contracting State otherwise than purely temporarily, is to be considered as ‘lawfully staying’ (‘résidant régulièrement’).

Hathaway makes the point that that “a refugee is lawfully staying (résident régulièrement) when his or her presence in a given state is ongoing in practical terms. This may be because he or she has been granted asylim consequent to formal recognition of refugee status. But refugees admitted to a so-called “temporary protection” system or other durable protection regime are also lawfully staying. So long as the refugee enjoys officially sanctioned, ongoing presence in a state party, he or she is lawfully staying in the host country; there is no requirement of a formal declaration of refugee status, grant of the right of permanent residence, or establishment of domicile.” The footnote to this paragraph notes, “This understanding is consistent with the basic structure of the Refugee Convention, which does not require states formally to adjudicate status or assign any particular immigration status to refugees, which does not establish a right to permanent ‘asylum,’ and which is content to encourage, rather than to require, access to naturalization.” (p. 730)

What’s the point? Rights in practice

Education

If we return to the table above, we see that some of the rights, such as rationing and public elementary education, are meant to be extended to any refugee (= anyone with a well-founded fear of persecution etc etc) on the same basis as nationals. There should be no distinction between refugees and nationals, and (according to Article 3) with no discrimination on the basis of race, religion, or country of origin. In practice, however, there are quite a lot of challenges in ensuring refugees’ access to primary education: some of the countries that have not signed the 1951 Convention may treat refugees as illegal migrants and restrict their access to schooling; educational opportunities may be limited and often vary accross camp and urban settings within a country; and refugees face frequent disruptions to their schooling. But issues about education for refugees is a whole other post.

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Right to wage-earning employment

Dr Paul Weis, in his commentary to the Travaux, characterized this Article as “one of the most important.” Refugees  lawfully staying are to be accorded “the most favorable treatment accorded to nationals of a foreign country, in the same circumstances”.

The second paragraph does not mean that refugees must be granted national treatment. In many countries aliens require a work permit and in this case, it is required of refugees, too, unless they have been specifically exempted from it, but it
has to be accorded to them ex officio if they fulfil any of the conditions stipulated in paragraph 2. It does not exclude conditions attached to the admission of refugees or their stay. Measures for the protection of the national labour market are either measures imposed on aliens such as restrictions in time or space or concerning employment in certain occupations, or restrictions on the employment of aliens such as fixing a certain number or percentage of aliens in general or in certain occupations or enterprises, or the provision that aliens may only be employed if no nationals are available for the job in question. As the Article provides that refugees shall be ‘exempt from restrictions’ it would seem not to exclude the imposition of restrictions in the future. Only restrictions for the protection of the national labour market are excluded, not measures taken in the interest of national security such as the prohibition of employment of aliens in defence industries. The prohibition of the employment of aliens in the civil service or in certain categories of the civil service which exists in many countries, is also not excluded.

Right to self-employmet

On the other hand, we have the rights to housing, liberal professions and self-employment, which are limited to refugees lawfully staying in a territory and the treatment should be “as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.” So if a restriction on exercising a profession would apply to a foreigner generally, that restriction would also apply to refugees. And this can be a big hurdle, because quite a lot of states have restrictions on foreigners working, exercising a profession, and owning businesses.

A look at the Travaux indicates that there was quite a bit of divergence in terms of States’ approach

The amendment was motivated in part by the fact that foreigners arriving in the UK were required not to engage in selfemployment without permission for a certain time, after which they were free to engage in any profession they choose.

The Turkish representative said under Turkish law, only nationals could be self-employed, and Turkey would consequently have to reserve its position on that Article, no matter what its wording. He thought the most acceptable solution would be to accord to refugees the treatment given to foreigners generally.

The Belgian representative was also in favour of according to refugees the treatment given to foreigners generally.

The US representative felt that solution would confer no real benefits on refugees, and wondered whether it might not be possible to find a third solution, whereby refugees would be granted not the most favourable treatment, but a treatment more favourable than that given to foreigners generally.

So what happens in reality?

Despite the very explicit protections for the right to work in the Convention, and complemented by other international instruments such as Article 6 of the International Covenant of Economic, Social, and Cultural Rights (ICESCR) (which provides the “right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” unfortunately, the IESCR only requires States to “take steps” towards that right), there is still a long way to go on refugee employment: a number of states have outright bans on employment, and access to employment in countries where it is legal often have significant de-facto barriers, like strict encampment policies, fees for permits, or administrative barriers such as document or bank account requirements that may be in practice impossible to fulfill.

Let’s look at the right to self-employment. This should be understood to also encompass the opening of businesses. The article refers to the right to self-employment, “as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.” Self-employment “on his own account” was seen as a low-cost activity that states should simply “allow” to happen – but some scholars argue that this Article actually requires states to facilitate access to self-employment, i.e. access to arable land or remove administrative barriers.

But it’s not all bad news!

In South Africa, a precedent decision relied not only on Articles 17(1) and 18 of the Refugee Convention, but also an article of the South African Constitution that guarantees the right to human dignity, to hold that refugees and asylim-seekers have a right to open businesses to avoid starvation or destitution:

In Somali Association of South Africa, et al., v. Limpopo Department of Economic Development, Environment, and Tourism, Judge Navsa overturned the lower court’s ruling and held that, because refugees might be left destitute without the opportunity to open businesses, refugees have the right to open businesses in South Africa.

In doing so, the Court drew support from Articles 17(1) and (18) of the 1951 Refugee Convention, which clearly favor giving refugees the right to work and self-employment, but falls short of demanding that a State must allow refugees to work. The Court therefore grounded its holding in municipal law. Section 27(f) of South Africa’s Refugees Act of 1988 indicates that refugees are entitled to seek employment. Additionally, Section 10 of South Africa’s Constitution guarantees the right to human dignity.

The Court’s precedent in Watchenuka held that the constitutional right to human dignity required that refugees be given the right to seek employment. In Somali Association, the Court extended this logic to require that refugees be allowed to open new businesses: “[I]f… a refugee or asylum seeker is unable to obtain wage-earning employment and is on the brink of starvation, which brings with it humiliation and degradation, and that person can only sustain him or herself by engaging in trade, such a person ought to be able to rely on the constitutional right to dignity in order to advance a case for the granting of a license to trade…” As a result of these two decisions, refugees and asylum-seekers in South Africa now have the right to apply for and renew business permits and licenses. It is unlawful for the government to close permitted businesses or confiscate property.

But the judge did not stop with legal observations, further noting that “one is left with the uneasy feeling that the stance adopted by the authorities in relation to the licensing of … shops was in order to induce foreign nationals who were destitute to leave our shores.” The Court’s decision should go some length to ensure that “destitute” refugees can live in dignity in South Africa. (Full article here)

Happy birthday, Geneva Convention!

I tried to photoshop a birthday hat onto the convention but it didn’t work

65 years ago, at a meeting in Geneva on 28 July 1951, a convention was signed that has formed the basis for one of the most enduring international legal regimes, and was eventually signed by 166 countries. This Convention does many things: it defines who is a refugee, who is not, and what obligations States have towards those who are recognized as refugees, particularly in respect to areas such as documentation, access to education and work, and standards of treatment. One of the most important obligation is that States may not return anyone to their country of origin if they could face persecution there. This idea, that States can’t send people to their torture, degradation, or death, has since been included in other conventions, and now is considered part of customary international law. Another, but less well-respected, obligation is that States can’t penalize people for illegal entry if they are fleeing persecution.

Arguably, the 1951 Convention Relating to the Status of Refugees (and its 1967 Protocol), are arguably one of the most effective human rights instruments around. Yet there are some, such as the Danish Prime Minister (Denmark: also known for its absurd policy of confiscating valuables from refugees ostensibly to pay for their stay – because let’s face it, the whole idea is to have refugees live with the most indignity possibly, just to prove we have the power) who wish to roll back the 1951 Convention. Because if you can’t live up to the standard, the best approach is to just lower the bar, right?

What the 1951 Convention does and does not do

It defines who is a refugee

Interestingly, the scenario that most people imagine when they think of refugees – in a country at war, a city is bombed, and faced with or fearing destruction of their home and death of family members, they flee – is not really within the 1951 Convention definition of a refugee (Article 1a, for anyone who cares to look). The 51 Convention definition is focused on a “well-founded fear of persecution” due to “race, religion, nationality, political opinion, or membership in a particular social group.” There is a bit more nuance involved, such as determining if the bombings or attacks were directed at a specific ethnic, religious, or other group (i.e., all members of XYZ group support the armed resistance group ABC, hence areas with high population of XYZ group were targeted for bombing). But for this reason, additional legal regimes, with broader definitions of refugees, have sprung up in Latin America, Africa, and, in the EU, under the concept of Subsidiary Protection.And it does raise the question if the definition that we have and use is really the best reflection of the world in which we live.

But the convention is helpful: first, it provides a common definition to which 148 countries have ascribed, and quite a number of these have included the 1951 refugee definition, or something very similar to it, in their national legislation. This common ground hasn’t removed all discrepancies and differences in interpretation among countries, but has certainly provided a common language and an international standard to which each country can be compared. Second, it provides a kind of scaffolding on which additional legal instruments can build. Elements of non-refoulement (non-return to a place of death, torture, or persecution) have been included in other treaties such as the Convention Against Torture and the European Convention on Human Rights, and also help provide protection to those who may not be refugees but may still be in danger. The efforts to improve the situation of stateless people has also built on the successes of the 1951 Convention. Finally, regional agreements allow States to include issues that are relevant to them – not only in terms of refugees, but also taking up issues such as internally displaced persons.

The main issues with the current 1951 refugee definition are as follows: although some of the additional legal instruments allow for a bit of a wider definition of who is a refugee to include people displaced by foreign occupation, invasion, generalized violence, or events seriously disturbing public order, the definition was crafted in the post-WWII context and had specific populations in mind. Although, through legal interpretation and UNHCR’s own efforts, the definition of refugee now comfortably accommodates the situation of LGBTI individuals, other situations which might cause people to flee, such as domestic violence (particularly in male-dominated societies with few/no legal resources or State response), Female Genital Mutilation, violence connected with criminal organizations, discrimination that may not be violent but may impede a normal life, persecution by non-State actors (blood feuds and tribal disputes, for example), and similar kinds of situations.

It defines who is not a refugee

The framers of the convention decided that this concept of protection should only extend to those who deserve it, and should not apply to those who are themselves persecutors or who are fleeing prosecution (not persecution!). So the idea that refugee status protects war criminals and terrorists isn’t true – or rather, if there are war criminals and terrorists who have refugee status, it is because they successfully lied or the country/entity evaluating their case did not do a thorough job investigating them. Interestingly, several individuals who were allegedly perpetrators of genocide or crimes against humanity in Rwanda had gotten refugee status in some countries. Because of the complexity of actually convicting them of genocide or war crimes or crimes against humanity, many of them had their refugee status revoked due to immigration violations for omitting or falsifying information when applying for asylum.

Imagine, then, that our fictional client has an Interpol Red Notice . According to Interpol, “the persons concerned are wanted by national jurisdictions for prosecution or to serve a sentence based on an arrest warrant or court decision.” Clearly criminal and undeserving of refugee status, right? Well, some countries use criminal prosecution as a way to persecute people, particularly dissidents or opponents, or those who fund opposition parties. Countries such as Azerbaijan, Georgia, Kazakhstan, Russia, and Ukraine have used this tactic. But it’s not limited to Central Asia and Eastern Europe; other offenders include Indonesia, Venezuela, Turkey and Bolivia:

Mr. Ochoa Urioste is a politically active attorney from Bolivia who became the subject of a Red Notice when certain officials within the Bolivian government targeted him for the prosecution of ordinary law crimes, after he refused to participate in the execution of contractual agreements that he found to be illegal — and he publicly criticized President Evo Morales.

Interpol has recently changed its policy to withdraw a “wanted person” alert if the person is confirmed to have refugee status, in recognition of the fact that states may use judicial avenues to persecute people.

[See Part 2: Now you have refugees, what are you meant to do with them?]

 

 

How terrorism in the West compares to terrorism everywhere else (WP)

The death tolls of attacks in Western countries pale in comparison to daily attacks in other parts of the world. In a few frenzied days in late June and early July, three Islamic-State-linked attacks killed over 350 people. On June 28, three attackers detonated their suicide vests at Istanbul’s Ataturk Airport and killed 45 people. On July 1, Bangladesh suffered its worst terrorist attack in history when gunmen killed 20 hostages at a Dhaka restaurant. On July 3, nearly 300 died in a busy Baghdad shopping district.

Read the article

So, about that peace deal: prospects for peace in Colombia

As a recent article noted,

The “how” and the “when” of Colombia’s latest peace breakthrough are of course important — but so is the “where” and “with whom.” On June 23, the Colombian government and the Revolutionary Armed Forces of Colombia-People’s Army (FARC) signed a bilateral ceasefire agreement, after more than five decades of armed conflict. For Colombia’s peace process to succeed, it will need to break the cycle of conflict, organized crime and state neglect in Colombia’s border regions.

That’s fantastic. After nearly sixty years of conflict, we are all glad to hear it will soon be over. Four years of negotiations, a nifty new ceasefire and bob’s your uncle, now you’ve got a peace agreement, right? And then everyone will go home, happily ever after…right?

Anette Idler wrote a very nice piece for the Washington Post explaining how marginalized communities in border areas aren’t looking forward to any quick-fix situation. Quotes such as,

Any potential peace agreement with the FARC therefore raises a number of questions: What will happen to all those other armed groups who operate in Colombian territory and across the borders? Who will take care of the local population and provide economic opportunities? Who will be deciding on the rules of behavior that people need to follow to be safe? Will these marginalized regions face an upsurge in violence or see wider peace?

…ought to be common knowledge to policy-makers, politicians, and journalists who persist in the fiction that Colombia’s troubles begin and end with the FARC. Yet the evident complexity of the situation seems to pass over the heads of policymakers fixed on a peace accord as a solution to Colombia’s decades-long conflict.

The ongoing peace negotiations between the Colombian government and the FARC have been an extremely positive step in what has been an extraordinarily protracted conflict with several mutations. But the current conflict does not particularly resemble the kind of stylized ideological warfare, your “one man’s terrorist is another man’s freedom fighter” with a side of Che Guevara (for those who are into that sort of thing) that it once might have been . The FARC has lost a lot of its ideological base, and now relies substantially on activities and sources of income that are both commercial and illegal: drugs, extortion (NB: Timochenko announces that the FARC will helpfully no longer be engaging in extortion), mining, and pretty much anything else they can think is economically viable. Practices such as kidnapping for profit and recruitment of minors, both of which were officially disavowed, yet still continue (again, as a gesture of good faith, apparently the FARC will release all of their child soldiers). The FARC and other groups also have far-flung alliances as with the Russian Mafia, Mexican cartels, Hezbollah, and others.

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Photo: Al Jazeera (allegedly)

 

Anyways, there are a number of reasons that any peace accord is not likely to result in a smooth transition to peace:

1. It did not go all that well the last time

Colombia does not have a particularly robust history when it comes to disarmament, demobilization and reintegration. In 2004-2006, Colombia attempted to demobilize the United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC, an umbrella paramilitary organization that was created to provide armed resistance to the FARC but turned out to commit horrendous atrocities and massacres). The main result, aside from a few prominent individuals who spent around six or eight years in jail under the Justice and Peace law (Ley de justicia y paz) and several of whom were now released! – in the main, the demobilization efforts managed to shatter the central command structure of the AUC but resulted in local factions returning to their power base, changing their names, and continuing with business as usual. (See: HRW, Paramilitaries’ Heirs: The New Face of Violence in Colombia, 2010).

2. The FARC isn’t the only game in town

The supposed demobilization of the AUC resulted in a number of neo-paramilitary groups such as the Urabeños, Águilas Negras, Los Paisas, Los Rastrojos, La Cordillera, Oficina de Envigado, Libertadores de Vichada, Los Machos, ERPAC… Some of these groups have fused with prior criminal structures associated with major Colombian cartels left over from the days of Pablo Escobar. While the respective fortunes of these groups have waxed and waned over the years, conflict among these groups and with authorities have created a shifting landscape were some groups may lose territory and strength, only to be replaced with new groups such as La Empresa. Some of the groups have further fractured to smaller groups (Los Traquetos, Los Nevados), or are outsourcing their violence to local gangs via oficinas de cobro, where one can hire a hitman or an extortionist. All that is to say that contemporary Colombia is a shifting landscape with a multitude of actors with national reach, and a multiplicity of actors in any given territory. Although international focus is on the FARC and an associated peace deal as the key to peace and security, this approach does not take into account other groups such as the left-wing National Liberation Army (Ejército de Liberación Nacional, ELN) who recently began peace negotiations, or powerful groups such as the Urabeños, who have not (but may want to – except that the Colombia government does not want to admit they exist).

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Map from El Espectador

3. The FARC may not be as united as one might think

The dismobilization experience of the AUC has provided ample evidence that factions of a national-level group can assess their economic prospects for survival as an independent faction, possibly with an eye to allying themselves with other armed groups participating in illegal activities, and refuse to demobilize. The first Front to state their refusal to do so is the 1st Front, operating in Eastern Colombia:

Although the 1st Front gives ideological justifications for staying in the field, there may well be financial reasons behind its decision. According to El Tiempo’s intelligence sources, the unit currently manages coca crop cultivations — which are abundant in the region — drug laboratories and strategic trafficking routes to Venezuela. Extortion and illegal coltan and gold mining are also mentioned as key revenue streams by other local media sources.

InSight crime further estimates that at least 30 percent of FARC fighters will not subscribe to the peace deal.

4. Uncertainty makes for strange bedfellows, and a power vacuum makes for a good opportunity

In the last two years or so, reports have increasingly indicated alliances between armed groups that would not normally be allied: namely, the FARC with anyone at all, and in particular, the FARC with groups such as the Rastrojos and Urabeños.

As InSight Crime describes it,

[A]ccording to a Semana source, with peace negotiations increasing the likelihood of FARC and ELN demobilization it is probable that the criminal bands want to take over spaces and “illegal economies” controlled by the guerillas. This new threat may have caused “the FARC and ELN to unify” in El Bagre, the source said.

While an ELN-FARC alliance might be seen as the natural outcome of competitors whose main point of difference is territorial rather than ideological (both groups are allegedly left-wing guerrilla organizations), there is no similar affinity that would explain reports of (working) alliances between the FARC and the Rastrojos or the FARC and the Urabeños. These functional alliances might provide an additional area of support for FARC factions that do not wish to disarm and demobilize.

Furthermore, uncertainty and shifting territorial controls among armed actors create confusion, tension and clashes in the context of possible disarmament of what has been a major player. For example, in Tumaco, according to InSight Crime,

Sources consulted by La Silla Vacía said local business owners reported they had been visited by BACRIM representatives who informed them the FARC had voluntarily ceded control of certain territories to BACRIM actors.

However, other reports suggest that recent turf disputes between the BACRIM and the FARC resulted in violent clashes in Nariño that led to the displacement of hundreds of people earlier this year. Moreover, La Silla Vacía writes that a series of apparent assassinations in recent months points to the possibility of a local power struggle between the two groups.

The article continues to note that,

BACRIM groups are seeking to take over criminal economies that the FARC will presumably leave behind if and when the guerrilla group and the government reach a final peace accord. Such a development could complicate the establishment of the concentration zones, which many analysts expect to play a key role in the process of demobilizing and reintegrating guerrilla fighters into civilian life.

Under the proposed framework for the zones, a one-kilometer buffer area will separate the FARC, which will assume responsibility for internal security within the zones, from the Colombian military, which will be tasked with guarding the zones’ perimeters. The presence of actors like the BACRIM, which are not bound by the provisions of the peace agreement, could cause frictions between the FARC and the government that may disrupt the demobilization and reintegration process.

5. The periphery was never under all that much control to start with

Eight of the proposed 23 concentration zones (or normalization zones) in which the disarmament is expected to take place are located in border areas.These include places like Tumaco, Nariño, which has a murder rate five times the national average and the presence of just about all of the major armed groups. Puerto Asís, in Putumayo, has long been a FARC stronghold, although less so than San Vicente del Caguán and zona de distensión, an area the size of Switzerland under FARC contril from 1998 until 2002. The outright disengagement in these areas, as with the negotiations with President Pastrana that led to the Caquetá-Meta-Guaviare territory being turned over to the FARC, or the chronic inability of the Colombian State to exercise control or provide services to marginalized border areas, has led to armed groups such as the FARC “essentially replacing the State in terms of health and road infrastructure.”  Not only was there substitution in terms of services; armed groups also have had strict rules for comportment in their territory, and local populations have little choice but to participate in the cultivation of illicit crops, and to some extent, willingly or unwillingly support armed groups.These areas will require significant attention if they are not to descend into violence and terror. (see also: HRW, The Crisis in Buenaventura: Disappearances, Dismemberment, and Displacement in Colombia’s Main Pacific Port, 2014)

 So now what?

Colombia’s transition will not go smoothly, and if not conducted carefully, it could result in yet another mutation of what has been a constantly evolving conflict. Some analysts have additional reasons for skepticism as well.  Most importantly, policy makers, analysts and journalists should consider Colombia’s long and difficult history before rolling up the red carpet in Havana and considering it a done deal with no further responsibility to engage to ensure a more stable and secure future.

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Refugees, Displaced People Surpass 60 Million For First Time, UNHCR Says 

So basically, the equivalent to the population of France (66 million), Thailand (65 million) or the United Kingdom (60 million) is a refugee. Or, California (39 million) + Florida (20 million) is a refugee. Or, Texas (27 million) + New York (19 million) + Illinois  (12 million). Food for thought.

UNHCR has announced its latest figures: 65.3 million forcibly displaced, including 21.3 million refugees. Turkey hosts more refugees than any other country in the world at 2.5 million, followed by Pakistan with 1.6 million, and Lebanon with 1.1 million. This stands in sharp contrast to the European countries, which collectively have taken in around 1.3 million.

Read more here

figuresataglance-16jun2016

Daily chart: Europe’s migrant crisis in numbers (Economist)

SINCE the summer of 2014, Europe has been struck with its worst refugee crisis since the second world war. Millions have fled their war-ravaged homelands in search of safety, causing political turmoil in a continent still recovering from economic disasters. Below is our interactive guide to the numbers behind the crisis.

See the infographic here

 

 

Aid agencies are not getting their workers proper visas and that’s dangerous (The Guardian)

In an era of doing business differently, reviewing the organisational practices that have become entrenched in INGO work might not be the stuff of world humanitarian summits but goes to the heart of practising what we preach. A first start would be clearer organisational guidelines that set out rights and responsibilities for staff regarding work permits so people know what to expect before they apply for a job including options if permits are denied or cancelled. Secondly, INGOs can use collective avenues such as NGO forums to discuss these issues with host governments and set in place agreements that were noted by the former HR manager above as very often lacking. Finally the wider humanitarian community including donors may need to balance the additional costs of taxation, social security and other insurances against the potential lost revenue to host governments and face up to the possible increased cost of doing business according to immigration regulations.

Read the full article

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