On January 16

On this day in ...
... 1970 (40 years ago today), the BBC reported that Libya's Muammar Gaddafi, then a 28-year-old Army colonel, had "taken the title of prime minister and appointed four members of his council to his new 12-member Cabinet." The move brought to an end a 4-month governmental administration by civilians that had begun when Gaddafi and other military officers ousted Libya's king by means of a bloodless coup. Today he is the "third longest serving head of state in the world after King Bhumibol Adulyadej of Thailand and Britain's Queen Elizabeth II."

(Prior January 16 posts are here and here.)

On December 26

On this day in ...

... 2004 (5 years ago today), an 8.9 earthquake under the Indian Ocean near the northern coast of Indonesia touhed off "[m]assive sea surges" -- an Asian tsunami that left more than 200,000 persons dead in 13 countries, more than half of them in Indonesia alone. (credit for photo of tsunami striking Thai coast) Billions of dollars in aid were contributed; however, the BBC later reported, "rebuilding in many of the stricken areas is slow and thousands of people remain homeless."

(Prior December 26 posts are here and here.)

On November 5

On this day in ...
... 1834 (175 years ago today), a daughter, Anna Harriette, was born into a family of high military rank, the Crawfords, in Wales. Or so she claimed years later in the memoir published under the name she took after marriage -- Anna Leonowens -- and titled The English Governess at the Siamese Court (1870). Recent research, however, indicates that Leonowens (right) was born 3 years earlier, in India, to a father who was a lowly sergeant, surnamed not Crawford but Edwards, and to an Anglo-Indian mother. (photo credit) By her deception, it is written, Leonowens

protected not only herself but her children, who would have greater opportunities if their mixed-race heritage remained unknown.

Some facts are not in question: that she married in India in 1849, that in her 30s she was widowed, and that as a result she accepted an offer to become the governess for the "39 wives concubines and 82 children" of Mongkut, King of Siam, in present-day Thailand. Her adventure is perhaps best known through film adaptations such as the 1956 musical The King and I.

(Prior November 5 posts are here and here.)

Bringing Law to Refugee Camps

Though I focus much of my scholarly energy on due process failures in the U.S. immigration system, the "Wild West" policies and procedures of American immigration courts pale in comparison to the legal vacuum found in refugee camps throughout the world. More than 7 million of today's refugees have lived in camps for at least ten years (sometimes for generations), yet there exists no formal legal infrastructure to protect even the most basic human security needs in these camps. Given the dire economic and physical conditions of the camps and the societal violence from which these refugees are fleeing, it's no surprise to learn that violent crimes, particularly against women and children, are common. In a camp for Burundian refugees in Tanzania, for example, over 25% of women had suffered violence, often sexual in nature; in nine Thai camps for Burmese refugees, 350 serious crimes were reported between 2003 and 2006, with rape and domestic violence the most common and children often the victims.

In 2006, in three of these Thai camps, the UN High Commissioner for Refugees and the International Rescue Committee opened legal assistance centers -- the first ever of their kind in any refugee camp anywhere the world. While 63% of camp residents at that time had concerns about their security, they were also skeptical of the Thai justice system, preferring the informal governing structures created within the camp communities. Since then, over 700 camp residents have consulted the centers with claims including murder, rape, and even contract disputes. Solutions offered by the legal assistance centers range from referrals to the Thai justice system (for the most serious cases) to working with the camp's sexual and gender-based violence committee on awareness training programs in schools and community-based organizations.

While it's hard to dispute that increased legal accountability is a positive step in situations of such violence and insecurity, it's a fine line that these organizations must walk between respecting local traditions of justice and imposing "universal" standards of justice from the top down. Particularly in cases of domestic violence and sexual assault, victims may be reluctant to come forward if reporting such crimes risks ostracization and other forms of social sanction by their community. It's important that the legal assistance centers are working alongside refugee women's groups to promote gender equality, reforming justice norms from within the community. Referrals of criminal cases to the Thai authorities offer an important stick, but one that must be exercised cautiously -- the laws might discriminate against foreigners on their face or in their implementation, and criminal laws in particular may lack adequate procedural safeguards for defendants. In this and many other situations, camps are located in societies geographically and culturally proximate to the refugees' home state, which may lead to some greater level of comfort with the host state's justice system and norms. If they are able to pull off the balancing act of protecting of local justice traditions alongside basic equality norms, these centers may offer a model for improving the physical security and fundamental rights of refugees in camps throughout the world.

On the detention of trafficking victims

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post.)

In countries around the world it is common practice for victims of trafficking who have been ‘rescued’ or who have escaped from situations of exploitation to be placed and detained in public or private shelters. The term ‘detention’, as used in this context, refers to a very specific situation in which the individual concerned is unable to leave the facility if and when she or he chooses to. In some cases, shelter detention is a short-term measure that may be prompted by concerns about victim well-being or safety. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years.
Our Study, Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, considers the international legal aspects of victim detention in shelters and weighs up the common justifications for such detention from a legal, policy and practical perspective. It is based on both desk research of shelter practices in a number of countries and more direct exposure to shelters through field-based research undertaken principally in South East Asia.
This Study is divided into two parts.

First Part
This part analyzes the international legal framework, and concludes that routine detention of victims or suspected victims of trafficking in public or private shelters violates a number of fundamental principles of international law and is, therefore, to be considered prima facie unlawful.
Failure of the State to act to prevent unlawful victim detention by public or private agencies invokes the international legal responsibility of that State. Victims may be eligible for remedies, including compensation, for this unlawful detention. In certain situations, the State may be able to successfully defend victim detention in shelters on a case-by-case basis with reference to, for example, criminal justice imperatives, public order requirements or victim safety considerations. The internationally accepted principles of necessity, legality, and proportionality should be used to evaluate the validity of any such claim. Application of these principles would most likely only support a claim of lawful detention in relation to a situation where detention is administered as a last resort and in response to credible and specific threats to a victim’s safety.

Second Part
This part considers the practical and strategic implications of the various policy arguments that are advanced in favour of victim detention. It asks:
► Can victims consent to their own detention?
► Is it indeed true that detention provides the only – or even the best chance of delivering much needed support and protection to victims of trafficking?
► Is it reasonable to cite the overwhelming reliance on victim testimony in human trafficking cases as grounds for ensuring these witnesses be prevented from disappearing?
► Should the situation be different for victims who lack legal migration status?
These questions are framed and responded to with particular reference to documented shelter practices in two countries of South East Asia: Cambodia and Thailand.

Conclusion
With only minor caveats, the Study concludes that in addition to their weak legal value, the arguments advanced in favour of victim detention are largely devoid of practical or strategic value.

On April 14

On this day in ...
... 1939 (70 years ago today), John Steinbeck's novel The Grapes of Wrath was published. Sold at $2.75 a copy, it became both an immediate bestseller and an immediate target for banning and burning. But the timeless Depression-era story of the Joad family, driven from their dust-bowled home in Oklahoma into unwelcoming migrant labor camps in California, outlasted critics. These seem good economic times to (re)read Grapes -- or, for that matter, the excellent nonfiction account of the same phenomenon, Factories in the Field, written by Carey McWilliams the very same year.
... 2009 (today), are celebrated New Year's festivals in Thai and Cambodian cultures. (credit for 2003 photo of Thai New Year festivities in Australia)

(Prior April 14 posts are here and here)

Refoulement Most Foul

The BBC reports that the Thai government has recently implemented a "brutal and inhuman response" to undocumented migrants from Bangladesh and Burma: tying their hands, forcing them into boats without engines and little or no food and water, and towing them out to sea. As one survivor noted, "The Thai soldiers clearly wanted us to die on the boats." Many died from dehydration and others jumped overboard. Sources in the Thai police and army confirm that at least some of those being pushed out to sea are asylum seekers.

Thailand's behavior violates fundamental provisions of international human rights treaties to which it is a party, most notably the right not to be arbitrarily deprived of one's life. So why did the Thai government feel empowered to so callously disregard the rights of these migrants? The reasons are obviously complex, but one answer may be that international law governing the rights of migrants lacks specificity, particularly in this region. None of the states involved -- Bangladesh, Burma, Thailand, and even India, which is currently caring for the refugees -- is a signatory to the United Nations Convention Relating to the Status of Refugees. While the principle of non-refoulement may have attained the status of customary international law, the regional failure to join the Convention may contribute to a regional view that protection of refugees is a favor rather than a duty. And if the rights of refugees are seen as optional, then economic migrants have little hope of robust rights protection.

So what's the solution? Apart from encouraging nations in the region to ratify the Refugee Convention, a regional treaty that affirms that rights extant in international human rights treaties apply to migrants might help to change attitudes. Countries that produce large numbers of regional migrants could take the lead in promoting protection for their citizens abroad. The non-binding "Bangkok Principles" for the protection of refugees were a preliminary step, back in 1966 -- it's high time now to take the next.

On December 23

On this day in ...

... 1948 (60 years ago today), 7 former leaders of Japan were executed for war crimes by hanging at Sugamo prison (left) in Tokyo. The previous month the group, which included Generals Hideki Tojo and Kenji Doihara, had been convicted following a 2-1/2-year trial before the International Military Tribunal for the Far East. (photo credit)

... 1997, economic news was glum amid reports that Moody's Investors Services Inc., "one of the world's largest credit-rating agencies," had "downgraded the sovereign debt of South Korea, Indonesia and Thailand to 'junk' status." The move "seriously impair[ed] the countries' ability to raise the money needed to work through the region's wrenching downturn." Eventually the International Monetary Fund would step in, and economies seemed to be recovering 2 years later. (photo credit)

Thai voters approve new constitution

Thai voters gave themselves a new constitution Sunday, bringing military rule closer to an end. Almost a year ago, a military junta ousted the popularly elected Prime Minister Thaksin Shinawatra. In exile in London, Thaksin has been charged with corruption in Thailand and many leaders of his party, Thai Rak Thai, were judged guilty of election fraud and have been banned from politics for 5 years. Called “the first step in moving forward to full democracy” by the junta-appointed Prime Minister Surayud Chulanont, the new constitution, approved by perhaps as many as 70% of voters, provides for democracy but gives bureaucracy and the military greater influence than electoral politics. Some voters are simply relieved to be moving on, while others, primarily among rural voters who supported Thaksin, oppose the constitution as a “vote to endorse the coup” that won’t do anything for the poor. Social and political divisions subsist, of course, and election battles are likely to be fierce. Former senator Kraisak Choonhavan predicts aggressive, even nondemocratic campaigning, saying Thailand is "not in for a pretty time". Let's hope this doesn't forbode election violence like that seen in Guatemala, where the body count of 26 I reported here is now up to 40, with Rigoberta Menchú's party losing several people last week.