Ray Jureidini. International Migration. Volume 48, Issue 4, August 2010.
The paper addresses a number of issues regarding the extent to which trafficking may be applied to migrant domestic workers who enter under the kafala system of sponsorship in the Middle East. Migrant domestic workers are the most numerous of those mentioned in reports on trafficking for labour exploitation in the region. The discussion seeks to determine whether “trafficking” can be ex post facto, rather than ex ante? In other words, can the label of trafficking be attributed only after the worker has arrived in the receiving country and is victimized according to the principles of trafficking protocols? In addition, must there be a proven intent to traffic by agents, or can employers who harm and/or exploit them be considered as traffickers alone? Should the harm done to workers on arrival at their place of work be classified (and assisted) as victims of trafficking, or as exploited workers?
In this paper, questions are raised regarding the extent to which trafficking may be applied to migrant domestic workers in the Middle East, with specific reference to Lebanon. The situation of migrant domestic workers is important because not only are they significant in terms of the numbers of migrant workers in the Middle East, but also because they are probably the most numerous of those mentioned in reports on trafficking for labour exploitation in the region.
It is argued here that, while the conditions of employment may be abusive and exploitative, and while migration agents may have deceived, misled or failed to warn prospective contract migrant workers of these conditions, it is not a simple matter to label it as trafficking, although it is commonly assumed. Without actually extracting work from a migrant, simply crossing borders with the “intent” to exploit the individual is not trafficking. In the case of domestic workers, we can identify abuse of migrant workers by middlemen in transit and abuse by employers at their work sites, but there is little evidence of a systemic conspiracy between the middlemen and employers that is clearly trafficking.
With 1.2 million migrant domestic workers employed in Saudi Arabia and 600,000 in the United Arab Emirates (IRIN, 2006) alone, it can be estimated that there are well over 2 million migrant domestic workers in the Middle East.
In the case of Lebanon, at the time of a survey conducted by this author in 2005-6, female migrant domestic workers were estimated to be around 160,000, mainly from Sri Lanka (100,00), the Philippines (30,000) and Ethiopia (30,000). Following the civil war (1975-1990) local Lebanese, Syrian and Palestinian women had ceased to undertake these positions (see Jureidini, 2009). Private agencies in Lebanon contract with other agencies in the sending countries to bring migrants into Lebanon. Employers in Lebanon contract with and pay the Lebanese agents (between $1,500‐$3,000) and the employee signs a contract with the employer. The standard “Contract of Employment for Domestic Helpers from Sri Lanka in the Middle East Countries” stipulates the salary, working hours “not exceeding 12 staggered hours per day”; that the employer is to provide free passage to and from Sri Lanka; that arrangement and payment of the visa/work permit is the responsibility of the employer along with suitable living quarters and adequate food, medical services (health insurance is compulsory by law); conditions of termination. “Special provisions” prohibit the employee from being required to work anywhere other than in the employer’s residence; and the requirement that the employer “shall treat the employee in a just and humane manner. In no case shall physical violence be used upon the employee.”
The regulation and monitoring of recruitment and placement agencies in Lebanon has been a problem since the civil war (1975-1990). It is not clear what criteria the government requires in order to issue an agency licence. There are no knowledge or character tests that are required as in other countries. Agents must place a $33,500 non‐interest bearing guarantee with the government’s Housing Bank (Bank de l’Habitat). For this they are able to bring 150 migrants per year into the country. However, with some 310 licensed agents in Lebanon, only around 44 are operating as genuine agents with an office and staff. Thus 266 agents hold licences but do not deal directly in the procurement and placement of migrant domestic workers into households. Instead, they operate from a cellular phone selling their quota to agencies that are active. At $150 per person, the passive agents can make around $23,000 per year profit and still have their bank guarantee reimbursed if they do not renew their license. Some of these “agents” get approval from their friends to obtain a visa for a domestic worker who thus arrives in the country without a real sponsor/employer. Although the Ministry of Labour banned the practice in 2006, advertising of domestic workers in Lebanon continues with these “passive agents” using false names, or just a cellular phone, to avoid prosecution. If an employer is found they also charge a higher price for the transfer because there is no waiting period; the workers are available immediately. Such warehousing of domestic workers in the premises of placement agencies is illegal; however it still occurs and women are effectively imprisoned by the agencies, sometimes abused, threatened or made to labour for friends and relatives until a sponsor is found.
In 2006-7 the Lebanese Ministry of Labor closed fifteen placement agencies on grounds of violations of workers’ rights including physical abuse (TIP Report, 2007). It is not clear, however, how many of these were temporary closures, because previously banned agents have been reinstated in the past. There is also a continuing judicial reluctance to bring criminal charges against both employers and agents in Lebanon (see ibid; Jureidini, 2003; Huda, 2006b).
In the survey of 610 Sri Lankan, Filipina and Ethiopian female migrant domestic workers, a relatively small, but significant, proportion of migrant domestic workers in Lebanon reported serious human rights abuses. For example, 31 per cent were not allowed to leave the house; and 34 per cent did not have regular time off. However, on working time, 65 per cent of interviewees reported working 11 or more hours per day; 42 per cent worked 13 or more hours per day; 31 per cent worked 15 or more hours per day and many added that they were “on‐call” 24 hours a day (see Jureidini, 2005). Thus, restriction on the freedom of movement is not just an employer’s rule imposed upon the domestic worker, it is also due to the length and intensity of the labour required.
Previous charges of “slavery” or “slavery‐like” practices in relation to migrant domestic workers (that tended to either ignore or assume that trafficking was present), pointed to three elements: violence or the threat of violence, restriction of freedom of movement and economic exploitation. While “exploitation” is not defined in the international protocol on trafficking, it is the immoral or illegal taking advantage of others for personal (or corporate) gain. In the case of the employers of migrant domestic workers, exploitation includes excessive hours of work, low (or no) free leisure time, requirements to work for other households without extra payment, and low wages. Low wage levels, however, are sometimes difficult to determine, particularly when there is no labour market regulation. Typically, throughout the Middle East, there is an hierarchy of female migrant domestic workers that is reflected in salary levels. In the Lebanese survey, for example, the average monthly salary for Sri Lankans was $154, compared with Ethiopians ($204) and Filipinas ($340) and there is no consistent clarity as to the reasons for the differential labour market rates other than vague notions according to agents and employers about education and skill, language and physical attractiveness.
In the case of middlemen, exploitation includes extra payments for the services of agents and others in the procurement, transportation and placement of migrant workers from their country of origin to employer in the country of destination. In Lebanon, many migrant domestic workers paid their initial salaries to ostensibly repay costs of travel and placement, even though employers were paying these costs to the agents. Of 582 respondents in the survey, 37 per cent said they had made payments to the placement agency after arrival (see further details below). The practice contravenes the 1998 International Labor Organization’s Private Employment Agency Law, Article 7 ( 1) that states: “Private employment agencies shall not charge directly or indirectly, in whole or in part, any fees or costs to workers.”
In addition to the above forms of exploitation, the survey revealed various forms of abuse by employers. 52 per cent reported being yelled at and called derogatory names such as hmara (‘donkey’), 14 per cent were physically abused (from hitting to downright physical torture) and 7 per cent were sexually abused or harassed (from sexually suggestive advances to rape). Except for the sexual abuse, most verbal and physical violations against domestic workers were perpetrated by their female employers – the “madame” of the household.
The difficulty in determining how to measure exploitation is exemplified by Eva Biaudet, OSCE Special Representative and Coordinator for Combating Trafficking in Human Beings, who argued that “a working definition for exploitation” relies upon “whether or not the person concerned has the opportunity to walk away from the job” (OSCE, 2008: 33). This, however, is more appropriately categorized as forced labour that is distinguished from trafficking for labour exploitation. As Roger Plant from the ILO has noted:
Exploitation … is a broader concept [than forced labour] and can exist without coercion. People can work under absolutely unacceptable labour conditions, but have entered the situation on voluntary conditions, simply because of the huge differences in standards of living and wages. Most State Parties have no precedent in defining exploitation, nor does the ILO give guidance. In fact, there are many conventions which together define what decent work is. Exploitation can be considered the opposite of decent work, but nowhere in more than 180 ILO Conventions is the concept of exploitation used specifically as an entry point. (OSCE, 2008: 35-36)
The question is: are migrant domestic workers, whose labour contracts have not been fulfilled, victims of trafficking for labour exploitation? Is it possible that trafficking can be ex post facto, rather than ex ante? In other words, can the label of trafficking be attributed only after the worker has arrived in the receiving country and victimized according to the principles of trafficking protocols? In addition, must there be a proven intent to traffic by agents and/or employers?
In the face of increasing frustrations with the definition of trafficking and the ensuing classification of people as trafficked victims as well as the implementation of trafficking legislation, it is important to identify the extent to which migrant domestic workers, who have entered a country legally and with contracts, can be considered as having been trafficked. It is also important to determine who are the traffickers involved. Recent surveys in Lebanon and in Cairo, Egypt have identified UN convention violations in terms of wages, conditions and treatment of migrant domestic workers, that suggest a significant proportion may be classified as trafficked persons (see also Huda, 2006a). For example, articles 13, 23 and 24 of the 1948 Universal Declaration of Human Rights are being violated daily against foreign domestic workers in the Middle East. These relate to cruel, inhuman and degrading treatment; the freedom of movement; the right to free choice of employment; to just and favorable conditions of work; the right to equal pay for equal work; the right to form and join trade unions; the right to rest and leisure, including reasonable limitations of working hours and periodic holidays with pay.
However, the question arises whether the harm done to workers on arrival at their place of work should be classified (and assisted) as victims of trafficking or as exploited workers. Not all harms done to migrants can be classified as trafficking harms, so the use of civil and criminal laws to address exploitations and abuses may be more appropriate legal means for prosecution and redress than trafficking.
Definitions
As Laczko (2005) has acknowledged, the amendment and adoption of a new and expanded definition of trafficking has created considerable discussion and disagreement on how trafficking is defined, or how it should be defined. An ever‐expanding set of possibilities makes investigation and research into a confusingly disparate set of circumstances and relations difficult. In addition to a number of conditions that had to be simultaneously present, the 1994 definition required that an international border must be crossed illegally, but, curiously, voluntarily. Thus, Laczko (2005) argues that this definition looks more like “smuggling” than trafficking. That condition was not present in the definition adopted by the UN General Assembly in late 2000 and included in the Palermo Protocol (UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime) that came into force on 25 December 2003:
Article 3 (a)
“Trafficking in persons” shall mean 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.
The United Nations Office on Drugs and Crime (UNODC) (2006: 51) suggests that this definition can be split up into three parts:
- The act(ion) of: recruitment, transportation, transfer, harbouring or receipt of persons;
- By means of: threat, use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim;
- For the purpose of exploitation, which includes, at a minimum, exploiting the prostitution of others, other forms of sexual exploitation, forced labour or services, slavery or similar practices, and the removal or organs.
It is argued that at least one element from each of these three sections needs to be present in order for the definition of trafficking to be applied (ibid). Others do not include this stipulation (Piotrowicz, 2007).
More recently, in a report on abuses against migrant domestic workers in Saudi Arabia, Human Rights Watch (2008: 40), using the following definition, concluded that widespread trafficking was occurring:
Trafficking includes any act of recruitment, transport, transfer, receipt, sale, or purchase of human beings by force, fraud, deceit, or other coercive tactics for the purpose of placing them into conditions of forced labor or practices similar to slavery or servitude. Such conditions occur when labor is extracted through physical or non‐physical means of coercion, including blackmail, fraud, deceit, threat or use of physical force, or psychological pressure.
The inclusion of “psychological pressure” is appropriate, but very difficult to identify or prove. This is similar to the problem identified in the determination of trafficking in Indonesia, where the Presidential Decree on Trafficking in Women and Children requires:
…one or more of the following elements of recruiting, transporting between regions and countries, transferring, sending, receiving and temporary placement or placement at their destination of women and children. It includes using threats, verbal and physical abuse, abduction, fraud, deception, misuse of vulnerability (eg. If someone has no alternative, is isolated, addicted to drugs, trapped in debt), giving or receiving payments or profits in cases involving women and children who are used in prostitution and sexual exploitation (including paedophilia), legal or illegal migrant workers, child adoptions, fishing platform work, mail order brides, domestic helpers, begging, pornography, drug dealing, selling of body organs as well as other forms of exploitation. (in Hendytio, et al., 2007: 33)
Hendytio, et al., (ibid) argue that the above definition is too broad to be meaningful because “many simple acts such as the act of ‘recruiting’ a person could be classified as trafficking or acts related to trafficking.” In the IOM Indonesia Screening Form used at recovery centers for victims of trafficking, question 3 asks the respondent “Did someone threaten or persuade you to leave your village/town?” (Annex 7 in David, 2007). In other words, recruitment by mere persuasion may be, in Indonesia, a sufficient trafficking condition. However, persuading, by various means, to gain the consent of an individual to accept work in another country is important to ascertain the extent of coercion and that there is a possible trafficking agent involved in the first instance. On the other hand, where the prospective migrant worker did not need convincing or cajoling prior to departure, but human rights or criminal violations are present on arrival in the receiving country, is consent an important factor?
Consent and recruitment agents
It is clear that trafficking has occurred when a person is taken against their will or under threat from one country to another, or from one part of a country to another for the purpose of some form of exploitation. Evidence of consent in these circumstances is not required in applying the current UNODC Protocol on Trafficking, where Paragraph (b) of Article 3 states:
The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.
The UNODC makes it clear that “[w]hat began as a voluntary activity on the part of the migrant … will still qualify as a case of trafficking in persons if the initial consent of the victim was gained through the use of deception, coercion or any other means, and exploitation subsequently takes place” (UNODC, 2006: 51). In other words, it is the means of consent, rather than consent per se, that is important. The problem is how the means of consent can be determined other than by the sole testimony of an alleged victim of trafficking. Can we presume the “any other means” suggests that if the consent was entirely voluntary, subsequent exploitation nullifies the consent, because it is assumed that no‐one can rationally agree to the subsequent exploitation?
Although no research on this has been forthcoming, in the case of most migrant domestic workers it is normally accepted that they have willingly consented to the contracts they have signed to be placed in a household to do the domestic chores required. As De Hass (2006: 5) has noted: “…in practice it is often difficult to make a sharp distinction between what is voluntary and forced [migration] as, except in the case of slavery, migrant behaviour is simultaneously shaped by human agency and structural constraints to varying degrees.”
It may be argued that migrants who are not “well informed” in making their decision to migrate cannot later claim they had false expectations and were thus a victim of trafficking. This makes some sense, but there is also a fine line between being given enough information and correct information. As economists often argue, if one assumes a rational decisionmaking process, then one assumes perfect market information. Whose responsibility is it, to provide all the information? Is it the recruitments agency’s responsibility, or is the onus on the individual migrant who may be self‐delusional or in denial of warnings of the risks involved? Or are the specifications as detailed in the contract sufficient? Even then, we know that many migrant workers do not understand and cannot recall the conditions in the contracts they have signed ((Jureidini and Moukarbel, 2004).
The standard contract introduced by the Sri Lankan government in 2000 (Contract of Employment for Domestic Helpers from Sri Lanka in the Middle East Countries) was only written in English and Arabic. In addition, it makes explicit what is normally left implicit in contracts, namely that:
The employee may terminate this contract without any notice to employer for any of the following just causes: maltreatment by the employer or any member of his household; violation of the terms and conditions of this contract; non‐payment of salary; physical molestation and assault. (Clause 10b)
Under “Special Provisions” (Clause 12), the contract also stipulates:
The employer shall treat the employee in a just and humane manner. In no case shall physical violence be used upon the employee. (Clause 12b)
Such provisions are instructive because they are indicative not only that such practices actually occur, but their inclusion should also be a warning to the migrants themselves.
In short, however, the issue of consent is irrelevant in cases of exploitation in its various manifestations. Exploitation remains exploitation, regardless of whether a person has consented to it or not. Thus, perhaps the issue of “deception” in the means of recruitment of migrant domestic workers is the most likely element to be used in the charge of trafficking for labour exploitation.
Deception
In the case of migrant domestic workers, who are the traffickers? If deception is one of the criteria in determining trafficking, do they include the recruitment agencies (and their sub‐agents) in the sending country, the placement agencies in the receiving countries and the sponsor/employer, or kafeel in the case of the Arab Middle East? Are all three parties assumed to be guilty or complicit in the deception? And can the deception be proven from the sole testimony of an alleged victim who says the expectations she received from, say, the recruitment agent was not fulfilled? Are the conditions as specified in the contract sufficient? Further research on the recruitment processes needs to specifically look at this issue that includes advertising, sub‐agents in villages and so on, in the migrant sending countries.
Is it also reasonable to assume that one or more of these parties may be ignorant of deception that occurs? Deception without intent cannot be deception. It may be argued that in the Arab world, it is very common for service providers of all kinds to make promises or give advice based on their own perceptions and imaginations that may bear no resemblance to the reality. It is often done out of ignorance, desperation for a commission, or just trying to please. Intent is not specified within the trafficking protocol, but it is assumed that any trafficker will be doing so intentionally. Intent may be proven with evidence that does not require admission by traffickers, but it may be complex, lengthy and costly for individual cases.
Human Rights Watch notes that if a recruitment agent in the sending country does not inform the migrant worker about the actual conditions that she will face at her destination, it is trafficking:
Migration and trafficking are interlinked, as traffickers often exploit the processes by which individuals migrate. For example, recruiters may deceive prospective domestic workers about their actual working conditions. (Human Rights Watch, 2008: 43)
The example of a domestic worker that the Human Rights Watch report on Saudi Arabia provides is clear, but perhaps an extreme case:
[17 year‐old Filipina] Haima G.’s situation amounts to trafficking and conditions of slavery, as relatives deceived Haima G. about her promised job abroad, her agent sexually harassed her, and her employer threatened to return her to her abusive agent if she complained. Her employer sexually assaulted her, retained her passport, and locked her in the workplace so that she could not escape. (ibid)
This case does raise the issue of the method of consent prior to the formal involvement of a recruitment agent, namely by relatives where a fiduciary influence is present (notwithstanding the possibility that the agent might be pressuring parents or other relatives). The element of deception by relatives adds even more parties to the trafficking process. On the other hand, it is quite possible that the recruitment agent in the sending country does not know enough about the sponsor/employer that she will be going to in order to warn her. In this case, if deception is not present, can “trafficking” be applied?
If the original facilitators of migration act in good faith, it would be difficult to categorize them as traffickers. However, the employer, or some other middle‐man, might have every intention to exploit the migrant worker. What might begin as a migration turns into trafficking. In a study of over 140 trafficked children in the United States, Godziak and McDonnell (2007) found that every one of them was smuggled with their parents’ consent, but neither the parents nor the children (and in some instances the first person in the chain of traffickers/smugglers/transporters/employers) were aware of the deceit and subsequent exploitation until afterwards.
Proving deception is not simple. Perhaps it is most easily determined in cases of replacement contracts where the contract signed before departure for the country of origin can be compared with the replacement contract on arrival at the country of destination. The extent to which the replacement contract is signed voluntarily also needs to be resolved. It cannot be assumed that once the migrant worker has arrived she will have little choice but to agree. Other than that, if asked if she has been deceived, or if her expectations on arrival were not met, is a victim statement sufficient for prosecution for it may assumed that, if an agent were asked if he or she had deceived the worker, the answer would be “no”. Family members and friends of the alleged victim could be interviewed for verification of original expectations, but would they be accepted as reliable or more reliable that the alleged victim?
Can we determine trafficking ex post facto, that is after a person has willingly signed an acceptable contract with an agent who arranged employment in another country in good faith? As we know, there are many thousands of cases where the treatment of the migrant worker by his or her employer includes exploitation and/or various forms of abuse. In these cases, would the recruitment agent be considered to have trafficked the migrant worker? If the agent is acting in good faith and does not know that the contractual arrangements will or have been breached, must we dismiss the charge of trafficking altogether and find other remedies (such as through national civil and criminal laws) to deal with the harm being done? Not all harms are trafficking harms where there is no organized trafficking syndicate operating, but a regular system of legitimate agencies facilitating the recruitment, transportation and placement of people across borders. The culpability of the harm will rest solely upon the abusive sponsor/employer. Did the sponsor/employer deceive the agencies involved? If so, can the sponsor/employer be considered as a trafficker?
It may be contended that any violation of civil rights by employers will also constitute a breach of contract between the migrant domestic worker and the employer and thus best dealt with under contract law. However, where the employment relationship between a domestic worker and her employer is not recognized as such (Lebanon and Egypt, for example, explicitly exclude it from labour law on the grounds that it is a “personal relationship”) there is little or no recourse to the law of contracts or labour law.
Deception may only be clear in extreme cases. In the questionnaire administered to migrant domestic workers in Lebanon ((Jureidini, 2005), interviewees were asked if there were any differences between what they thought they were coming to and what they found when they arrived. Very few interviewees answered this question which suggested that they did not fully understand question itself, or they did not know or remember what was written in the contracts they signed in the first instance.
Placement agents: debt bondage or indenture?
We need to probe further into the circumstances to ascertain the “legitimacy” of trafficking status. For example, pre‐arranged work permits are not always required. In Lebanon, as in other Arab states, the work permit is only applied for after the first three months, which is the “cooling off” period before the employer and employee ratify the contract. During that period, the employer or employee may decide that the person or job is not suitable. The employer can return the migrant worker to the placement agency (or she may decide herself to go back) to be placed elsewhere. It is known, however, that in many cases (precise numbers are unknown) if the worker returns or is returned to the placement agency in Lebanon, she may be abused and threatened in order for her to return to the employer she was placed with, because the agent does not want to lose whatever investment he has made to bring her into the country or the fee he has charged to the employer. There are also cases when an employer, reluctant to use physical violence, will take her to the agency for them to discipline her (Jureidini and Moukarbel,
2004). Can the category of trafficking be applied in such cases? Is this “demand driven trafficking” (Anderson and O’Connell-Davidson, 2003) or “demand determined trafficking”?
Let us also look at the possibility of migrant domestic workers being caught up in debt bondage, or bonded labour. The US State Department notes: “Many workers around the world fall victim to debt bondage when traffickers or recruiters unlawfully exploit an initial debt the worker assumed as part of the terms of employment or when workers inherit debt in more traditional systems of bonded labor” (US State Department, 2007).
Few studies of migrant domestic workers acknowledge the ex‐gratia payments made by workers to agencies after they arrive in the host country. In the survey referred to earlier, it was found that 38 per cent had paid money from their initial wages to the Lebanese placement agencies. On average, each worker paid US$ 350 (2-3 months of their wages). Generalizing to a conservative estimation of the population of migrant domestic workers in Lebanon, this meant that agencies took around US$ 4 million from them each year. The Lebanese agencies argued that they pay expenses and communication costs for those women who had no money—for passport fees, pre‐departure medical examination, transportation and agency commissions in their home country—in return for up to the first four months of their salaries. However, there is no regulation or transparency within the industry concerning these costs, charges and profits. Agencies withholding US$ 1,100-1,200 from the salaries of Ethiopian domestic workers as an insurance against their absconding enabled agencies to offer (and advertise) “guarantees” to employers against Ethiopians running away. The danger of these practices is that migrant workers become entrapped in vulnerable circumstances tantamount to (even if temporary) debt bondage and thus trafficking that have similarities with indentured labour (see Jureidini and Moukarbel, 2004). Does the placement agency traffic the migrant domestic worker in order to exploit the labour of their first months in the receiving country? It is not clear. Further, if migrant workers enter into such arrangements willingly, should they be prevented from doing so? Even though his discussion of trafficking focuses upon women for prostitution from African states to the Maghreb and the European Union, De Hass’s comments are equally appropriate for migrant domestic workers to the Middle East. He noted that in the 1990s:
increasing immigration restrictions made female migrants dependent on large loans in order to migrate. This provided an opportunity to traffickers… However… [t]he reciprocity between prostitutes and (equally female) traffickers and the prospect of upward mobility in the trafficking organization are strong incentives to adhere to the pact [debt bondage]. Therefore, even in the case of trafficking, migrants do often exert a certain degree of agency. (De Hass, 2006: 26)
Employer‐sponsors
As Tyldum and Brunovskis (2005) point out, one of the main reasons for the difficulties in research on trafficking is that we are dealing with “hidden populations”. In the case of migrant domestic workers, they are not hidden because of the clandestine nature of their work as with prostitution, but because the workers remain within the sacred privacy of family households where the state is reluctant to intervene.
Most observers of migrant domestic workers in the Arab Middle East point to the restrictions on freedom of movement placed on them by their employers in the household. Reports of workers being locked in the house when the family is out (which also occurred during the Israeli invasion of Lebanon in July‐August of 2006) has been an issue of great concern. Many have little or no leisure time and many are only allowed outside the home if they are accompanied by a family member, even if it is to go to a corner store. In addition, almost all migrant domestic workers have their passports held by the employer (and sometimes the placement agency), which generally means that she cannot leave the country at will.9 More than that, if the migrant worker does go out and does not return—if she “runs away”—she must be reported by her employer to the authorities and is immediately classified as an illegal foreigner and can be arrested, detained and deported. Such conditions have been referred to as “slavery‐like” conditions.
It may be argued that these regulations under the kefala system create a structural set of circumstances whereby these women are continuously under threat of incarceration and potential violence against them. Migrant domestic workers who want to leave their employers, who normally should have a right to withdraw their labour, cannot do so without harsh penalties that are not articulated within the contracts they sign. Contracts generally make provision for penalties if a worker wants to leave before the expiry of the contract period (usually 2-3 years) which usually means she agrees to pay for her airfare home. In practice, employers will also demand that they are reimbursed for the procurement costs of bringing her into the country which can range from US$ 1,000-3,000. Only if she pays this amount will the employer return her passport and there have been cases where women have worked, illegally freelancing, for over a year to buy their passports back. By then, however, the employer may have brought false charges of theft against her but she will also be arrested, detained and fined for the expiry of her visa and work permit, which the employer will not have renewed.
The TIP Reports over the years identify these conditions as “involuntary servitude”, where the prevention of the freedom of movement of migrant domestic workers constitutes a sufficient criterion for trafficking even though the number of workers who abscond is unknown. Nor are the reasons for absconding known. In addition to non‐payment of wages, abuse, restriction of freedom, overly long hours, arduous work, some women simply want to earn more money elsewhere. They may be offered more by another employer, or by freelancing in more than one household where they can earn up to double their previous salaries. This is another reason that employers say they do not want them to leave the house—so they will not talk to others who will entice them away with promises of higher wages.
Normalcy of Violations
Could it be that neither the recruitment agencies nor placements agencies are responsible if they are acting in good faith and without knowledge of the intentions of the employer? What if it is neither of these parties to the migration who are intentionally deceiving or exploiting, but rather the structural procedures of the migration, the working conditions and exploitation by the employers that constitute the labour migration as trafficking? Further, is the treatment of domestic workers by employers (that includes long exploitative hours, low pay, restriction of freedom and abusive behaviour) so accepted in some countries that neither trafficking, nor criminal intent is present, but rather a cultural norm? This is not restricted to the Arab world. In Italy and Sweden, many employers also feel that domestic workers have “no right to paid holidays, fixed working hours, minimum wages, pension rights, their own room, trade union membership or a contract with their employer”(Anderson and O’Connell Davidson, 2003: 34).
Those employees who are not allowed to leave the house (i.e., those whose right to freedom of movement is violated) are not necessarily classified as caught up in involuntary servitude. Just as it is difficult to prove in some circumstances that the giving up of a passport to the employer is not voluntary, so it is also unclear to what extent the restriction of migrant domestic workers inside the household (even being locked in) is involuntary. It may be objectively against her interests, but there are cases where it is not seen as a problem by the worker, as long as they are treated decently otherwise. And even then, they may well prefer to endure the hardship for the money and future prospects, as De Haas (2006) has alluded to.
On the other hand, Piotrowicz (2007: 276) argues: “The essence of [trafficking in human beings] is that the victim is removed from their home environment, under the effective control of another, and exploited for the gain of others” If control is the key issue, then the large bulk of migrant domestic workers under the kefala system are trafficked. However, Piotrowicz also suggests that control is mainly maintained because of “some illegal activity of the victim such as breaking immigration laws, or local employment laws, that make them vulnerable to exploitation” (ibid: 277). In the Arab Middle East, the control over migrant domestic workers is not just by the employers but is facilitated by the kefala system and therefore by the state. They are not allowed, for example to enter the local labour market. They must work for their sponsor (kafeel) and no one else without leaving the country. Lebanon has recently begun to relax this requirement, allowing the transfer of employers, but this is only with the permission of the original sponsor, so it will rarely include those domestic workers who have run away because of abuse and exploitation.
Those who argue that the issue of harm in itself is not applicable to trafficking and therefore limitations on the definition of trafficking need to be applied, may be concerned that far too many migrant workers will be brought under the one umbrella, making it far too unwieldy. In addition, a fear of revealing high numbers of trafficking victims that goes against the interests of donors may be misplaced.
Conclusion
In this paper I have tried to briefly articulate some of the nuances in the questioning of the extent to which migrant domestic workers, particularly under the kefala sponsorship system. The structural conditions that include violence or the threat of violence, restriction of freedom of movement and exploitation (particularly hours of work per day) in a sense places all these migrant domestic workers under the umbrella of trafficking. To do so, however, seems impractical when trying to identify those who may be prosecuted as traffickers.
Standard remedies for the trafficking problem with migrant domestic workers include ratifying the anti‐trafficking and migrant rights conventions (UN Convention on the protection of the Rights of All Migrant Workers and their Families, 2003), bringing them into local labour law, improving state regulation of the industry, counteracting racism, xenophobia and prejudice against migrants and ethnic minority groups, allowing immigration/citizenship status, access to the local labour market as well as support networks that might also include unionization ((Anderson and O’Connell-Davidson, 2003); international cooperation by governments of receiving countries that include bilateral relations that stipulate minimum standards of employment and where local labour laws acknowledge the employment of domestic workers as a legitimate employment relationship, and to assist civil society organizations and individuals that include media campaigns to change the discriminatory attitudes towards migrant workers that contribute to their exploitation (Huda, 2006b).
Whether in most cases it is better to use anti‐trafficking conventions and legislation is the critical conclusion that needs to be drawn. From the perspective of the migrant domestic workers, it is important to implement whatever it takes to alleviate the violations against them and bring the violators to justice, whether they be called trafficking, labour rights, human rights or criminal violations of persons. For those who are concerned to identify whether these violations are trafficking violations, it would seem safest to use the United Nations Office on Drugs and Crime (2006) suggestion that all three elements of the protocol definition of trafficking are present.
It may be argued that, over time, placement agents in the receiving country should be aware of the various violations that occur in the recruitment and placement of migrant workers. In a sense, both recruitment and placement agencies are responsible for the placement of the worker in the receiving country. The agency in the sending country may or may not be the same company or subsidiary of the agent in the receiving country. Nonetheless, there is business collaboration between them, so perhaps the agency in the sending country should be just as culpable in the charge of trafficking where violations either by an agent or employer are perpetrated against the migrant worker. Such a conspiracy, however, is difficult to prove. At the very least, agencies in both sending and receiving countries should be required to be vetted and entry or licensing requirements into the industry should be stringent. By professionalizing the occupation (e.g., by introducing mandatory education and training, ethical codes of conduct, etc.) it could reduce the risks of trafficking violations and prevent the placement of migrant workers with exploitative employers (for example, by a system of blacklisting).
The problems for migrant domestic workers in the Middle East is largely the result of the exploitative and abusive conditions that many face in transit and in the place of their employment, but it is not necessarily trafficking. The ability of employers and agents to maintain a strict control over them in either legal, contractual or illegal means constitute the structural conditions for the abuse and exploitation, but they are not necessarily traffickers. There is a systemic arrangement that creates a structural vulnerability for migrant domestic workers in the Middle East, and as such it is a human rights issue, or set of human rights issues (Piotrowicz, 2007) that should be the responsibility of the states to address—to regulate the industry, provide assistance to victims and to address these violations by first enacting local laws that specifically relate to procurement and the treatment of migrant domestic workers and prosecuting offenders. On the other hand, civil, labour and criminal laws already exist that should enable individual victims who are exploited and abused to seek legal remedies against the perpetrators (without fear of arrest for visa infringements or retribution). To date, however, there has been little evidence of a serious willingness on the part of Arab governments to make such provisions.