Sharing the responsibility for refugees: A new global compact

An aerial view of the Za'atri refugee camp, Jordan, Wikimedia Commons

An aerial view of the Za’atri refugee camp, Jordan, Wikimedia Commons

Amnesty International, Sharing the responsibility for refugees: A new global compact, 9 May 2016, Index number: IOR 40/3906/2016

Wealthy states and the international community as a whole have failed to equitably share responsibility for managing the ongoing global refugee crisis. In his report In Safety and Dignity: Addressing Large Movements of Refugees and Migrants, published today, UN Secretary-General Ban Ki-moon has proposed a “Global Compact on responsibility-sharing” to create a more predictable and equitable way of responding to large movements of refugees.

This briefing urges states to use key upcoming international meetings to move from short-term stop-gap measures to long-term, proactive and globally coordinated solutions.

At the UN General Assembly High-Level Plenary on addressing large movements of refugees and migrants in September 2016, states should adopt a new Global Compact on predictable and equitable refugee responsibility-sharing, based on international human rights and refugee law. The Global Compact should include:

  • A permanent distribution system of resettlement places, based on objective criteria;
  • In cases of large movements of refugees, an additional distribution system to admit refugees through expedited safe and legal routes (“legal pathways” for admission) based on objective criteria;
  • Guaranteed full, flexible and predictable funding for refugee protection and meaningful financial support to countries hosting large numbers of refugees, over and above existing development assistance programmes;
  • Strengthened refugee status determination systems and increased use of prima facie recognition of refugee status;
  • Respect, protection and fulfilment of the rights of refugees in their country of asylum, including the enjoyment of an adequate standard of living, access to education, healthcare and other services, and economic self-reliance.
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Litigating human rights 1/2: Amnesty International’s interventions before international tribunals

Faroe_stamp_131_amnesty_international FREE COPYRIGHTAmnesty International is known for being a vocal organisation: many of its activities are carried out publicly, via petitions, demonstrations, declarations. A large part of Amnesty International’s work, however, happens quietly, in backstage meetings and private conversations. Or before national and international courts and tribunals, where Amnesty International often appears as a third party or amicus curiae.

This post lists selected international cases in which Amnesty International has intervened, most often as a third party or an amicus curiae. It is a tribute to all the women and men who have contributed their vision and passion to this work, as well as to the lawyers who have lent their professional skills to human rights, representing Amnesty International pro bono.

Fore more info, have a look at: Dean Zagorac, “International Courts and Compliance Bodies: The Experience of Amnesty International”, in Tullio Treves (ed.), Civil Society, International Courts and Compliance Bodies (T.M.C. Asser Press, 2005), p11 ff.

International Courts

African Commission on Human and Peoples’ Rights

Amnesty International submitted several communications to the African Commission under Article 55 of the African Charter on Human and Peoples’ Rights

Amnesty International v Zambia, communication no. 212/98

Amnesty International and others v Mauritania, Communications no. 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98

  • Decision, 27th Ordinary Session, Algiers, 27 April – 11 May 2000

Amnesty International and others v Sudan, Communcations Nos. 48/90, 50/91, 52/91 and 89/93

  • Decision, 26th Session, Kigali, 1–15 November 1999

Amnesty International v Tunisia, Communications no. 69/92 and 79/92

  • Decision, 13th Ordinary Session, Banjul, 29 March – 7 April 1993

Chutan (on behalf of Banda) and Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, Communications Nos. 64/92, 68/92, AND 78/92

  • Decision, 17th Session, Lomé, 13–22 March 1995

Community Court of Justice of the Economic Community of West African States (ECOWAS)

Civil Society Associations Gambia (CSAG) v Gambia

 SERAP v Federal Republic of Nigeria

Court of Justice of the European Union

X, Y and Z v Minister voor Immigratie, Integratie en Asiel (Minister for Immigration, Integration and Asylum), Joined Cases C-199/12, C-200/12, C-201/12

N.S. v Secretary of State for the Home Department (Case C-411/10) and M.E. & Others v ORAC (Case C-493/10)

European Court of Human Rights

Husayn (Abu Zubaydah) v Poland, Application No. 7511/13

A. P. and others v France, application no. 79885/12

  • Written comments submitted jointly by Amnesty International, ILGA Europe and Transgender Europe (TGEU), 24 July 2015

M.E. v Sweden, application no. 71398/12

  • Written submissions on behalf of Amnesty International, 11 April 2013 [on file with Amnesty International]
  • Judgment (Merits and Just Satisfaction) of the Court (Fifth Section), 26 June 2014

Alekhina and others v Russia, application no. 38004/12

  • Written submissions on behalf of Amnesty International and Human Rights Watch, 14 April 2014 [on file with Amnesty International]

Al Nashiri v Romania, application no. 33234/12

Tarakhel v. Switzerland, application no. 29217/12

Abu Zubaydah v Lithuania, application no. 46454/11

S.A.S. v. France, Application No. 43835/11

Al Nashiri v Poland, Application No. 28761/11

El-Masri v. the former Yugoslav Republic of Macedonia, application no. 39630/09

Hämäläinen v. Finland, application no. 37359/09

  • Written observations of Amnesty International, 13 September 2013 [on file with Amnesty International]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 16 July 2014

M.S.S. v Belgium and Greece, Application No. 30696/09

Hirsi Jamaa and Others v Italy, application no. 27765/09

  • Written submissions on behalf of the AIRE Centre (Advice on Individual Rights in Europe), Amnesty International and the Fédération internationale des ligues des droits de l’Homme (FIDH) [on file with Amnesty International]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 23 February 2012
  • Amnesty International, Italy: ‘Historic’ European Court judgment upholds migrants’ rights, public statement, 23 February 2012

Sharifi and Others v. Italy and Greece, application no. 16643/09

Othman (Abu Qatada) v. the United Kingdom, application no. 8139/09

P and S v Poland, Application No. 57375/08

Z v Poland, Application No. 46132/08

  • Written submissions on behalf of Amnesty International [on file with Amnesty International]
  • Judgment (Merits and Just Satisfaction)  of the Court (Fourth Section), 13 November 2012

Janowiec and Others v. Russia, application Nos. 55508/07 and 29520/09

X and others v. Austria, application No. 19010/07

Jones and Others v the United Kingdom, applications no. 34356/06 and 40528/06

  • See below for the UK proceedings
  • Written comments by Redress, Amnesty International, Interights and Justice, 20 February 2010
  • Judgment (Merits and Just Satisfaction) of the Court (Fourth Section), 14 January 2014

Ramzy v the Netherlands, Application No. 25424/05

  • Written comments by Amnesty International and six others, 22 November 2005
  • Judgment (Struck out of the List) of the Court (Third Section), 20 July 2010

BAYATYAN V. ARMENIA, APPLICATION NO. 23459/03

  • Written comments submitted by Amnesty International, Conscience and Peace Tax International, Friends World Committee for Consultation (Quakers), International Commission of Jurists, War Resisters’ International, Index POL 31/001/2010, 15 July 2010
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 7 July 2011

Tahsin Acar v Turkey, application no. 26307/95

  • Written submissions on behalf of Amnesty International [not available]
  • Judgment (Preliminary Objection) of the Court (Grand Chamber), 6 May 2003

Assenov and Others v Bulgaria, application no. 24760/94

  • Written comments on behalf of Amnesty International, 13 February 1998 [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Chamber), 28 October 1998

Kurt v Turkey, application no. 24276/94

  • Written submissions on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Chamber), 25 May 1998

AYDIN V TURKEY, APPLICATION NO.23178/94

  • Written submissions on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 25 September 1997

Chahal v the United Kingdom, Application no. 22414/93

Akdivar and Others v Turkey, Application No. 21893/93

  • Written submissions on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber) 16 September 1996

McCann and others v the United Kingdom, application no.18984/91

John Murray v the United Kingdom, application no. 18731/91

  • Written comments on behalf of Amnesty International and Justice [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Grand Chamber), 8 February 1996

Brannigan and McBride v the United Kingdom, application nos. 14553/89 and 14554/89

  • Written comments on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Plenary), 26 May 1993

Soering v United Kingdom, Application No. 14038/88

  • Written comments on behalf of Amnesty International [not available]
  • Judgment (Merits and Just Satisfaction) of the Court (Plenary), 7 July 1989

Extraordinary Chambers in the Courts of Cambodia

Case No.: 002/19-09-2007-ECCC-OCIJ-PTC

Inter-American Commission on Human Rights

Paloma Angélica Escobar Ledezma and others v Mexico, case 12.551

  • Amicus curiae brief on behalf of Amnesty International, 10 July 2007 [not available]
  • Report No. 51/13, 12 July 2013

Hul’qumi’num Treaty Group v. Canada, Petition 592-07

Luis Gabriel Caldas León v Colombia, case 11.596

  • Amicus curiae brief on behalf of Amnesty International [not available]
  • Report No. 137/10, 23 November 2010

Inter-American Court of Human Rights, contentious cases

Mendoza et al. v. Argentina

  • Amicus curiae brief presented by Amnesty International [not available]
  • Judgment of 14 May 2013 (Preliminary Objections, Merits and Reparations), Series C No. 260

Karen Atala Riffo and daughters v Chile (Case 12.502)

  • Amici curiae brief presented by Amnesty International and fifteen others, 8 September 2011
  • Judgment of 24 February 2012 (Merits, Reparations and Costs), Series C No. 239

Radilla Pacheco v. Mexico

González et al. (“Cotton Field”) v. Mexico

  • Amici curiae brief in support of petitioners presented by Amnesty International and others, 7 July 2009
  • Judgment of 16 November 2009 (Preliminary Objection, Merits, Reparations and Costs), Series C No. 205

Ronald Ernesto Raxcacó Reyes v Guatemala

Cayara v. Peru

  • Amnesty International joined Americas Watch as co-complainant in the case before the Inter-American Commission on Human Rights
  • Judgment of the Court (Preliminary Objections), 3 February 1993, Series C No. 14

Fairen-Garbi and Solis-Corrales v Honduras

  • Brief of Amnesty International as amicus curiae, 7 January 1988 [not available]
  • Judgment of the Court (Merits), 15 March 1989, Series C No. 6

Godinez-Cruz v Honduras

  • Brief of Amnesty International as amicus curiae, 7 January 1988 [not available]
  • Judgment of the Court (Merits), 20 January 1989, Series C No. 5

Velasquez-Rodriguez v Honduras

  • Brief of Amnesty International as amicus curiae, 7 January 1988 [not available]
  • Judgment of the Court (Merits), 29 July 1988, Series C No. 4

Inter-American Court of Human Rights, Advisory Opinions

Request of Advisory Opinion submitted by the State of Panama

  • Request of Advisory Opinion submitted by the State of Panama, 28 April 2014
  • Written observations by Amnesty International submitted pursuant to Article 73(3) of the Rules of Procedure of the Inter-American Court of Human Rights, 30 March 2015

Legislative measures concerning the mandatory imposition of the death penalty and related matters

  • Request of Advisory Opinion presented by the Inter-American Commission of Human Rights, 20 April 2004
  • Written observations presented by Amnesty International, Index IOR 62/005/2004, 8 December 2004
  • Order of the Court, 24 June 2005 (Spanish only)

The Right to Information on Consular Assistance in the Framework of the Guarantees of the due Process of Law

  • Brief of Amnesty International as amicus curiae [not available]
  • Advisory Opinion OC-16/99 of 1 October 1999, Series A No.16

Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights)

International Court of Justice

Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)

International Criminal Court

The Prosecutor v Jean-Pierre Bemba Gombo, case no. ICC-01/05 -01/08

  • Amnesty International’s Application for leave to submit amicus curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence, no. ICC-01/05-01/08-399, 6 April 2009
  • Decision on Application for leave to submit amicus curiae observations
    pursuant to Rule 103 of the Rules of Procedure and Evidence of the Pre-Trial Chamber II, no. ICC-01/05-01/08-401, 9 April 2009
  • Amnesty International’s Amicus curiae observations on superior responsibility, No. ICC-01/05-01/08-406, 20 April 2009

Special Court for Sierra Leone

Prosecutor v. Brima et al., Case No.SCSL-2004-16-AR73

  • Order of the Appeals Chamber on the appointment of amicus curiae, 2 December 2005
  • Corrigendum to the Order of the Appeals Chamber on the appointment of amicus curiae, 2 December 2005
  • Amicus curiae brief of Amnesty International concerning the public interest information privilege, 16 December 2005
  • Decision of the Appeals Chamber on Prosecution appeal against Decision on oral application for witness TF1-150 to testify without being compelled to answer questions on grounds of confidentiality

Litigating human rights: Amnesty International in the Pinochet case

Between 1998 and 2000, Amnesty International was directly involved in the legal proceedings to bring former Chilean President Augusto Pinochet to trial for his alleged involvement in the commission of crimes under international law.

General Pinochet’s arrest in the United Kingdom was the culmination of years of campaigning by the families of the victims.

 

Litigation in the Pinochet case was also the culmination of years of research by Amnesty International into the crimes under international law committed in Chile since 1973.

 

This post lists the public documents published by Amnesty International in relation to the proceedings of the Pinochet case in the United Kingdom. A timeline of key developments in the several strands of the Pinochet case can be found here.

This post is dedicated to the memory of Christopher Keith Hall

 

Phase I: Proceedings before the High Court and the House of Lords

Proceedings before the High Court

17 October 1998: General Pinochet is arrested in London

Proceedings before the House of Lords

25 November 1998: first House of Lords judgment – Judgment of the House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet (on appeal from a Divisional Court of the Queen’s Bench Division); Regina v. Evans and another and the Commissioner of Police for the Metropolis and others, Ex Parte Pinochet (on appeal from a Divisional Court of the Queen’s Bench Division), 25 November 1998

24 March 1999: second House of Lords judgment – Judgment of the House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division), 24 March 1999

8 October 1999: A UK court orders the extradition of General Pinochet to Spain

3 December 1999: High Court of Justice, Queen’s Bench Division, In the matter of Augusto Pinochet Ugarte and In the matter of an application for a writ of habeas corpus ad subjiciendum, Decision, 3 December 1999

Chile - desaparecidos

Phase II: Judicial review case

Link

Written submissions on behalf of Amnesty International acting as amicus curiae in the case of Amjad Hussein v Labour Court before the Supreme Court of Ireland

The issue of principle which Amnesty International wishes to address is whether an irregular migrant worker is prohibited from obtaining redress against his or her employer where their contract of employment was not permitted under domestic legislation. Amnesty International submits that the common law doctrine of illegality does allow for the protection of irregular migrant workers in contract and/or tort law where they are exploited by their employer.

The human rights of migrants as limitations to states’ control over entry and stay in their territory

(C) Valerio Rinaldi for Amnesty International

(C) Valerio Rinaldi for Amnesty International

This post was published on 21 May 2015 on EJIL Talk!, blog of the European Journal of International Law

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition? This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.

Limitations on the prerogative to control entry

The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10). Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry.

Limitations on the prerogative to establish conditions for entry and stay

While the limitations imposed by international law on a state’s prerogative to control entry into its territory are relatively well-established, at least on paper, visa regimes are often perceived to be an area where state sovereignty has little boundaries. Once the state has complied with its international obligations in selecting who is allowed into the country, it seemingly enjoys a broad freedom in determining how long they can stay and under which conditions (the generally recognised exception being, again, refugees and those protected by the obligation against refoulement). In fact, the rules of international labour law protecting workers from labour exploitation, forced labour and servitude, and the international legal rules against trafficking in human beings, profoundly impact the prerogative of states to establish conditions for entry and stay in the form of visa regimes. As the requirements of some visa regimes may ultimately be in breach of a state’s international obligations to protect individuals from labour exploitation, forced labour, servitude and trafficking, such obligations limit its sovereignty in establishing visa conditions. In 2014, Amnesty International published an analysis of selected visa regimes in five countries of destination (China/Hong Kong, Italy, Qatar, South Korea and the United Kingdom), showing that some visa requirements, such as the inability to change employer and the employer’s control over the worker’s migration status, increase migrant workers’ risk of suffering labour exploitation and other abuses at the hand of private actors such as recruitment agencies and employers. Recently, the link between visa requirements stopping migrant workers from changing employers and vulnerability to labour exploitation has been at the centre of the debate on a new Modern Slavery Bill in the United Kingdom. NGOs have argued that the current system of overseas domestic workers visas “tied” to the employer (whereby the migrant worker is not allowed to change employer) is open to abuse, as the workers can only leave an exploitative labour relationship at the price of losing their visa. Amnesty International’s research also shows that the promise of regular documents is often used by abusive employers to induce irregular migrant workers to accept exploitative labour conditions. In countries where the administrative procedure to obtain or renew residence and work permits has to be initiated by, or requires the cooperation of, the employer, the employer’s effective power to determine their migration status can easily become a tool to intimidate or threaten workers, undermining further the irregular migrant workers’ limited ability to negotiate better wages and working conditions (Amnesty International, Abusive labour migration policies, 2014, p. 7-10).

Limitations on the treatment of irregular migrants: “firewalls”

The current European debate on irregular migration tends to focus on the limitations on state sovereignty during law-enforcement, i.e. on the procedures of arrest, detention and deportation. In fact, the international obligation to respect, protect and promote the human rights of migrants may require states not only to modify the procedures of their law-enforcement operations, but also to limit law-enforcement operations tout court. In his 2013 report to the United Nations General Assembly, the Special Rapporteur on the human rights of migrants, François Crépeau, called on states to allow migrants to access the public services needed for the enjoyment of their rights without fear of being arrested, detained and deported. In order to do so, states should implement “firewalls” between public services and migration enforcement, whereby public services (healthcare, education, housing, labour inspection, local police) would be instructed not to request migration status information unless essential; and migration enforcement would not have access to the information collected by public services relating to migration status (para. 82). The call for “firewalls” between the public officials charged with protecting and enforcing the human rights of irregular migrants (teachers, doctors, labour inspectors, etc.) and those charged with enforcing migration laws recognises and addresses a problem familiar to human rights advocates: irregular migrants are generally so concerned about coming to the attention of the authorities that they are reluctant to access public services, even when they would be entitled to do so to enjoy their human rights. While, in its first formulation, the “firewall” argument was built on ethical and policy grounds (Carens 2008 at pp. 167-168), this post argues that it also has strong grounds under the legal principle that the human rights of migrants limit the sovereign prerogative of states to control migration. Here again, the debate is far from being academic. The domestic legislation of several European states imposes on public officials a duty to report irregular migrants to migration-enforcement authorities, either expressly (such as in the Irish Immigration Act 2003, s. 8) or via the interplay of legislation criminalising irregular migration and a general requirement of any public officer to report all suspected criminal acts to law-enforcement authorities. Yet, many European states also impose direct or indirect reporting bans on public bodies and officials providing basic services, which either prohibit them or allow them not to report irregular migrants to the police. Although a complete review of state practice in this field is beyond the scope of this post, a few examples may illustrate the point. In Italy, irregular migrants are allowed free access to “urgent or essential” health services and “preventive care” services, including maternal health care, children health care, vaccinations and the care of infectious diseases and epidemics (Legislative Decree No. 286/1998, art. 35.3). To allow meaningful implementation of this right, Italian legislation expressly guarantees that access to health services by irregular migrants will not be reported to the authorities (ibid, art. 35.5). Germany’s migration legislation imposes upon all public administration bodies a general duty to report irregular migrants to the authorities in charge of migration enforcement (AufenthG, s. 87). In 2011, an explicit exception to this provision was introduced for schools and other educational and care establishments for young people (ibid.). In the same way as reporting bans on healthcare and education personnel are a simple measure to “firewall” irregular migrants’ rights to health and education, reporting bans on labour inspectors are a simple measure to “firewall” irregular migrants’ rights at work. Such bans are in fact required under the ILO Labour Inspection Convention, 1947 (No. 81). According to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), tasking labour inspectors with immigration control functions is incompatible with international obligations because it diverts resources from their primary duty “to protect workers and not to enforce immigration law” (General Survey on Labour Inspection, 2006, p25).

Conclusion

This post has attempted to provide a summary overview of the limitations imposed by international human rights law, international refugee law and international labour law on states’ sovereign prerogative to control entry and stay in its territory. The broad scope of these limitations strengthens the comparatively weaker position of the individual migrant vis-à-vis the state. By imposing a range of direct restrictions on law-enforcement operations, states are effectively hampered in their pursuit of the goal of migration control.

Kurdistan Region of Iraq, December 2014: personal diary of a mission

Baharka Camp for displaced people, Erbil, Kurdistan Region of Iraq, December 2014 (Copyright: Amnesty International)

Baharka Camp for displaced people, Erbil, Kurdistan Region of Iraq, December 2014 (Copyright: Amnesty International)

From the plane, the alternation of seasons is evident: what three months ago was a large expanse of arid, dusty yellow land, now is dark brown and punctuated by moist green patches. After a fist visit in September, my colleague Khairun and I are back in Iraqi Kurdistan (officially known as Kurdistan Region of Iraq, or KRI) to assess the human rights situation of both Syrian refugees and displaced Iraqis.

As a result of the advance of ISIS and of the violence across the country, over 2 million Iraqis have been displaced during 2014. Nearly half of them, about 950,000, are now in the KRI, a semi-autonomous area smaller than the Czech Republic with a population of 5.2 million. Most of them are Yezidis from the Sinjar region, in addition to Turkmen and Arabs from towns and villages around Mosul. Before January 2014, the KRI had already opened its doors to about 230,000 refugees from Syria. It is as if the United Kingdom, population 64 million, had received 14.5 million people desperate to flee war.

Camps

The Kurdish Regional Government (KRG) has made efforts to build camps for those displaced. Baharka camp, just outside Erbil, hosts about 3,000 displaced Iraqis and Palestinians in tents. Being very close to the capital, this is one of the most visible camps. Despite the frequent visits by foreign dignitaries, journalists and charities, however, conditions in the camp are far from ideal, especially when it rains. After dark, solar lamps and mobile torches keep the market going.

Baharka camp, Erbil, Kurdistan Region of Iraq, December 2014 (Copyright: Amnesty International)

Baharka camp, Erbil, Kurdistan Region of Iraq, December 2014 (Copyright: Amnesty International)

The governorate of Dohuk, a town of 280,000 inhabitants West of Erbil, is hosting about 430,000 displaced people, in addition to refugees from Syria. When we first visited the Dohuk area, in September 2014, those who could not find hospitality with local families had occupied all of the spaces that they could turn into shelter: the local schools, building sites, unfinished buildings, garages, parks and gardens. Three months later, there are 9 official camps for IDPs in the Dohuk governorate, hosting about 125,000 people.

Two of the official camps were built by AFAD, the Turkish Disaster and Emergency Management Agency; three were built by the United Nations; and the remaining four were built by the KRG. As a result, their standards of accommodation, facilities and services vary greatly. In Bersive I camp, for example, an AFAD camp hosting about 10,000 people near Zakho, the tents are not fully insulated from the rain, there is no hot water and the number of toilets and showers does not meet minimum standards in humanitarian response.

Bersive I camp for displaced people, Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Bersive I camp for displaced people, Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

With all their shortcomings, the official camps built so far can only accommodate part of those in need. The majority are scattered in hundreds of informal settlements, including construction sites, community spaces and unofficial camps. Others are in private accommodation or hotel rooms. Many of the displaced in the Dohuk governorate live in construction sites and unfinished buildings with limited or no access to water and electricity – a solution which is precarious, dangerous and open to the elements. We visit large unfinished buildings with no walls, windows, doors or bathrooms, sheltering hundreds of families in makeshift rooms with plastic partitions.

Construction site in the town centre of Zakho, hosting dozens of families. Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Construction site in the town centre of Zakho, hosting dozens of families. Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Makeshift rooms in a construction site in Zakho, Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Makeshift rooms in a construction site in Zakho, Dohuk governorate, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

In winter, this difficult situation is made worse by the cold and rainy weather: at night the temperature can go below 0 °C. In the places we visit people do not have enough blankets, warm clothes and gasoline for heating, in addition to cooking, water and sanitation facilities. In a construction site near Zakho, Dohuk governorate, we see people making fire with paper to warm up; the weather forecast for the night is 3 °C. Many of the people we visit would not have survived without the help of generous landowners and neighbours.

Displaced people on a building site in Zakho, Dohuk governorate, Kurdistan Region of Iraq, make fire with paper to warm up (Copyright Amnesty International)

Displaced people on a building site in Zakho, Dohuk governorate, Kurdistan Region of Iraq, make fire with paper to warm up (Copyright Amnesty International)

There are an estimated 186,000 school-aged children (6 to 17 years old) displaced in the Dohuk governorate. The majority of them (about 89,000, or 55%) are in non-camp settings. There are significant gaps in the provision of basic education in camps. Outside the camps, parents who are struggling to provide for their family need their children to work in order to contribute to the family’s needs. As a result, very few of the children we meet are going to school.

Displaced children playing in the mud, garbage and sewage, Dairabun informal settlement, Kurdistan Region of Iraq (Copyright Amnesty International)

Displaced children playing in the mud, garbage and sewage, Dairabun informal settlement, Kurdistan Region of Iraq (Copyright Amnesty International)

We visit families in their tents, where we are offered countless cups of aromatic Arabic coffee and sweet tea. As our delegation is composed of women, the women of the families we visit can take their scarves off and the atmosphere becomes immediately more relaxed. We explain carefully Amnesty International’s role and the purpose of our visit, as it is important for our interlocutors to understand that we cannot provide them with food or clothes. However, we find people happy to talk to us; in many cases, none of the humanitarian organisation who provide them with food or clothes has stopped to hear their full story.

Inside a tent for internally displaced people, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Inside a tent for internally displaced people, Kurdistan Region of Iraq, December 2014 (Copyright Amnesty International)

Some of the cases we documented will need long-term follow-up. An adequate response to the dire winter conditions, on the other hand, is urgent: immediately after the end of our mission we publish part of our findings, urging the international community to improve coordination and fill the gaps in humanitarian assistance:
Amnesty International, Iraq: Dire winter conditions expose shocking gaps in humanitarian assistance for thousands displaced, 19 December 2014.

 

This post is dedicated to Maria Corsi, my grandmother, who was a displaced child in Italy during the Second World War.

How to cite this post:
Francesca Pizzutelli, “Kurdistan Region of Iraq, December 2014: personal diary of a mission’”, The Rights Angle, https://therightsangle.wordpress.com/, 21 January 2015.

Abusive labour migration policies: Amnesty International’s statement on the occasion of the UN Committee on Migrant Workers’ Day of general discussion on workplace exploitation and workplace protection

Mexican construction workers

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Ladies and gentlemen,

Amnesty International would like to thank the UN Committee on Migrant Workers and the Office of the High Commissioner for Human Rights for inviting the organisation to participate in this Day of general discussion.

My observations today will focus on abusive labour migration policies, i.e. labour migration policies that increase migrant workers’ risk of suffering labour exploitation and other abuses at the hands of their employers.

These observations are based on field research on labour exploitation of migrant workers, conducted by Amnesty International in Hong Kong (China), Italy, Qatar and South Korea between 2009 and 2014. You will find more details in Amnesty International’s written submission to the Committee. Individual testimonies and detailed legal and policy analyses have been published in country-specific reports.

In many of the cases of labour exploitation that Amnesty International investigated, the abuses suffered by workers were not only due to the actions or failures of an individual employer, but were linked to systemic problems in the way migrant workers’ employment is regulated in the destination country. We have found that, in many destination countries, labour exploitation is rooted in serious flaws in the processes by which migrant workers are recruited and employed, which facilitate and enable employers to subject migrant workers to exploitative practices.

Let me give you some details about two types of abusive labour migration policies:

  1. Labour migration policies that give the employer control over the migrant worker’s residence status;
  2. Labour migration policies that tie migrant workers to a specific employer.

1. Labour migration policies that give the employer control over the migrant worker’s residence status

Amnesty International’s research has found that labour migration policies that give the employer control over the migrant worker’s residence status increase the risk of labour exploitation.

In Qatar, the Sponsorship Law gives the employer the exclusive responsibility to complete the administrative procedures to issue or renew migrant workers’ visas and work permits. This means that the employer has the power to arbitrarily make migrant workers irregular, even when they meet the relevant legal requirements about entry and stay. Amnesty International researchers met hundreds of migrant workers arbitrarily left “undocumented” by their employers. Without the documents necessary to prove their migration status, migrant workers find themselves at constant risk of arrest by police, who regularly stop migrant workers to check their papers. This highly precarious situation reduces migrant workers’ ability and likelihood to access assistance by the authorities in case of labour exploitation.

In Italy, the seasonal permits system has de facto become an unofficial regularisation mechanism for the many migrant workers in an irregular situation. As the procedure can only be initiated by the employer, irregular migrant workers are completely dependent on their employer’s willingness to apply for the documents necessary to regularise their status. The employer’s effective power to determine the worker’s migration status can easily become a tool to intimidate or threaten workers, undermining their ability to negotiate better wages and working conditions. Amnesty International’s research has shown that the promise of regular documents is often used by employers to induce migrant workers to accept exploitative labour conditions. The non-payment of wages or arbitrary wage deductions, which are common instances, are often justified by the employer as payments for his/her “cooperation” in the process to obtain documents.

2. Labour migration policies that tie migrant workers to a specific employer

Amnesty International’s research has found that labour migration policies that tie migrant workers to a specific employer increase the risk of labour exploitation.

This is the case, for example, of:

  • Visas or work permits which require permission by the first employer for the migrant worker to change jobs;
  • Visas or work permits immediately or rapidly expiring when a migrant worker leaves a job or is fired.

 A. Visas or work permits which require permission by the first employer for the migrant workers to change jobs

Some countries impose limitations on the labour mobility of migrant workers, requiring them to obtain permission by their first employer in order to change jobs. In Qatar, such a permission is known as “No objection certificate”, or NOC; in South Korea, the employer signs a “release” document.

If workers find that they have been deceived about the terms and conditions of their contract during the recruitment process, or are subjected to abuse by their employer, the question of whether or not they can change jobs depends on their employer. Where permission to change jobs is not granted, migrant workers who leave their job lose their regular migration status, thus risking arrest, detention and deportation.

Amnesty International’s research has found that the employer’s power to prevent workers from leaving their job can be used to pressure them to continue to work in situations where they are subjected to exploitation or when the individual simply wants to resign and return home. These practices are inconsistent with the right of everyone to the opportunity to gain a living by work which he or she “freely chooses or accepts” (Article 6, International Covenant on Economic, Social and Cultural Rights).

B. Visas or work permits immediately or rapidly expiring when a migrant worker leaves a job or is fired

Visas or work permits that expire immediately or shortly after a migrant worker leaves a job or is fired, leaving them in an irregular migration situation, increase the risk of labour exploitation because they greatly reduce the likelihood that the worker would seek help from the authorities in case of abuse, for fear of being detected as irregular and deported.

This is the case for visas that do not allow the worker to change employer, thereby expiring when the employment relationship with the first employer ends, such as the United Kingdom’s visa for migrant domestic workers.

However, the same risk of labour exploitation arises with respect to labour migration policies that allow migrant workers only a very short time to find a second employer after the end of the employment relationship with the first one, such as the Two-Week Rule in Hong Kong (China) and the Employment Permit System in South Korea.

Migrant workers who lodge a complaint against their employer are likely to have their contract terminated. Labour migration policies that impose on them a very short time to find another job leave them with little choice but to remain in abusive and/or exploitative conditions or accept jobs with unfavourable work conditions in order to maintain their regular migration status. Fear of losing their job and quickly becoming irregular increases migrant workers’ reluctance to complain about abusive labour conditions.

Recommendations

Amnesty International recommends that the Committee requests states parties to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families to provide detailed information on the following aspects of their labour migration policies:

  • Labour migration policies that give the employer control over the migrant worker’s residence status;
  • Labour migration policies that tie migrant workers to a specific employer;
  • Measures taken to ensure the right of all migrant workers to the opportunity to gain a living by work which he or she freely chooses or accepts;
  • Measures taken to ensure that all migrant workers are able to report instances of labour exploitation and obtain an effective remedy for human rights violations.