Policing housemaids in Bahrain

(My thanks to IntLawGrrls for the opportunity to contribute this guest post on my article published at 49 British Journal of Criminology 165 (2009))

Foreigners working as housemaids in Bahrain continue to face a Catch-22, as I've described in my recent article, Policing Housemaids: The Criminalization of Domestic Workers in Bahrain.

Using ethnographic and interview methodologies, I explored cultural perceptions of work and family which factor into how Bahraini labor law fails to include housemaids in its provisions. I also observed how the police by default end up regulating labor, thereby contributing to a criminalization effect. In essence, the absence of labor protections created a decentering and diffusing of legal forms and practices across agencies. In this case, what should be handled by the Ministry of Labor in reality becomes the responsibility of the national police force (logo above left).

By way of background:
Unlike other guest workers, housemaids -- and ‘houseboys ’ , who exist, but are far fewer in number -- are not protected under Bahraini labor law. Article 2 of The Labor Law for the Private Sector (Ministry of Labour and Social Affairs 1976) lists ‘domestic servants and persons regarded as such ’ as exceptions to protections afforded other foreign workers. By default, domestic servants are treated as part of the family for which they work; however, their cases are never processed in the shari’ah courts, where all other family-related matters are litigated.

Because there is no oversight over work conditions, the housemaids serve at the whim of their employers, who also act as their immigration sponsors. Although there are many sponsors who treat their housemaids with respect and care, numerous incidents have been documented in recent years of exploitation and abuse, ranging from physical punishments for allegedly doing the job poorly, to sexual abuse and rape by male members of households.

At the same time, many problematic housemaid-sponsor relationships do not rise to the level of abuse or exploitation, but rather reflect more mundane workplace employee-employer conflicts.

Regardless of the seriousness of the problem, the women’s section of the police station is the default government forum for sponsors’ passionate re-telling of how they have been wronged by their housemaids and the housemaids’ subsequent emotional rebuttal, laced with their fear of a criminal justice system they may not necessarily understand. Disputes quickly rise to the level of a criminal investigation as accusations of theft, assault and other criminal behavior on the part of the housemaid are alleged to the police.

My work on housemaids occurred as part of my research into gender policies in Bahraini policing during which I observed the female section of Bahrain’s police stations for several months during the years 2005 and 2006. Housemaids or former housemaids formed the majority of female defendants whom I observed at local police stations.

In his own words…

After suffering in virtual silence a scurrilous smear campaign, which characterized him as a sharia-loving, sovereignty-sacrificing sell-out of U.S. interests, Harold Koh has been heard. [Yale Law School has compiled the blog posts, articles, and letters in support of Dean Koh here.] His confirmation hearing, which was chaired by Senator John Kerry (right) with Senator Richard Lugar (left) as the ranking Republican, just concluded before the Senate Foreign Relations committee (Kerry's and Lugar's statements are here). The hearing was no cakewalk, but Dean Koh's confirmation seems assured.

Throughout, Dean Koh presented a compelling defense of his “transnational” approach to international relations and his vision of the United States’ place in the world in the next administration. (His answers to Senator Lugar’s written questions were entered into the formal record; an annotation is available here. Ron Slye's discussion of Koh's theory transnationalism is available at Foreign Policy.) In his oral testimony, several key themes emerged that will no doubt guide Dean Koh’s approach to the Legal Advisor in the promising event that he is confirmed:

¶ The U.S. is indelibly and unavoidably connected to the rest of the international community by a web of security, trade, diplomatic, commercial, historic, artistic, and familial relationships.

¶ The nations of the world, including our own, should respect and adhere to the international obligations they have taken on. In his words,

“this is not only the right thing to do, it is the smart thing to do.”

¶ We limit our ability to lead internationally and to demand compliance by other states—including rogue states such as North Korea—when we are perceived as disobeying or disrespecting international law. Our hard power is augmented by the soft power we wield. Our soft power is only as strong as our moral legitimacy.
¶ It is best to work through—rather than in opposition to—international organizations and institutions. We are not powerless to act unilaterally, but there are limits to how effective we can be if we do so.
¶ U.S. sovereign interests and national security are enhanced—rather than inevitably threatened—by our active engagement in international affairs and our participation in international law regimes addressed to transnational problems. Our sovereign power and influence are magnified when we work with allies and international institutions. Such partnerships

“protect our sovereignty and make us safer.”

¶ The U.S. should partner with allies to address common security, environmental, criminal, public health, and economic threats, such as Somali piracy, climate change, swine flu, and the global economic meltdown. We should work to convince nations with which we have more complicated relationships to join these coalitions.
¶ Our foreign affairs power is also enhanced, and the U.S. will make better international and domestic policy decisions, when the executive and legislative branches work in partnership and when members of the minority political party have a voice in designing this policy as envisioned by our constitutional system. The Constitution’s

“checks and balances do not stop at the water’s edge.”

¶ International law—as expressed in our treaty obligations and customary international law—has historically and traditionally been an integral part of the U.S. legal system, subject to principles of constitutional supremacy.
¶ Foreign law and foreign court decisions, while in no way binding on the U.S. or U.S. courts, may have something of value to say about how to resolve legal and procedural problems that are common to the community of nations. We limit ourselves when we categorically ignore or reject them.
¶ International law is a tool that can be used to advance U.S. interests in

• achieving world peace and security,


• establishing the rule of law worldwide,


• greasing the global economy, and


• improving the quality of life for the world’s populace,

thus

• opening up foreign markets to our goods,


• enhancing and disseminating the human and civil rights that are at the foundation of our constitutional framework, and


• ensuring that all the world’s people have a stake in a just, productive, and secure planet.
  

One quote summed up his testimony:

“International Law Is Not The Problem, It Is The Solution.”

‘Nuff said.

... and counting ...

(Occasional sobering thoughts.) With news about pirates dominating mainstream media these days -- do check out IntLawGrrl Beth Van Schaack's excellent post on law and piracy -- it seems a good time to reflect on the consequences of more conventional, and lethal, conflicts in which the United States is involved.
Notwithstanding President Barack Obama's stated plan to take 12,000 U.S. troops out of Iraq by September, violence continues apace but political integration drags -- a situation evident in stories this week on the latest suicide bombing and the latest obstacles to establishing local governance structures.
In Afghanistan, meanwhile, some maintain that Pakistan's promise to allow some sharia law imperils Afghans' security -- even as, yesterday, there were protests challenging a new marriage law as a threat to Afghan women's security. (Photo slide show here.) The Associated Press reported from Kabul:

Dozens of young women braved crowds of bearded men screaming 'dogs!' on Wednesday to protest an Afghan law that lets husbands demand sex from their wives. Some of the men picked up small stones and pelted the women. 'Slaves of the Christians!' chanted the 800 or so counter-demonstrators, a mix of men and women. A line of female police officers locked hands to keep the groups apart.

With challenges in these countries well in mind, here is the casualty count in the 8 weeks since our last post:

Iraq Body Count reports that between 91,403 and 99,794 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, representing an increase of between 721 and 777 deaths in the last 8 weeks. According to the U.S. Defense Department, 4,273 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,591 persons. That's 28 servicemember deaths in the last 8 weeks, all of them Americans.

As for the conflict in Afghanistan, military casualties in Afghanistan stand at 678 Americans and 453 other coalition servicemembers. That's an increase of 25 and 27, respectively, in the last 8 weeks, and a total servicemember casualty count of 1,131.

Fact v. Fallacy in the Confirmation Process

We’re thick into the Obama confirmation season and some of the commentary has moved from the surreal to the preposterous, with Fox News leading the charge (followed closely by the right-wing blogosphere). The current Obama nomination target seems to be Harold Hongju Koh, the Dean of the Yale Law School (disclosure: my alma mater), who has been nominated to serve as Legal Advisor to the U.S. State Department. Harold Koh previously served with distinction as Assistant Secretary of State for Democracy, Human Rights, & Labor under President Clinton.
In addition to the complaint that a top appointment to the State Department--the United States’ interface with the world--might be a “transnationalist”, i.e. someone who thinks international law matters (the absurdity of this critique has been discussed here [IntLawGrrls] and here [Concurring Opinions] and here [Opinio Juris]), there are several manufactured nomination “controversies” that might be of particular interest to IntLawGrrls:

1. that Koh believes sharia law should apply within U.S. courts;
2. that he believes we should not let a treaty dictate whether we can execute juveniles convicted of crimes;
3. that he once called President Bush the "torturer-in-chief"; and
4. my personal favorite: that we should abolish Mother’s Day.

I decided to try to track down the sources of these bizarre claims.

The alleged sharia law comment is elusive. Apparently, someone recalled Koh indicating in a public talk that sharia law might apply within U.S. courts. Others who attended that talk have no memory of the comment, recalling only that Koh spoke of how different legal systems, including sharia, share common legal concepts and principles. Hardly a controversial observation.


If anyone still have doubts about his position on sharia, s/he should take a look at an account of an exchange between then Professor Koh and Sayed Rahmatullah Hashmi (right), once the envoy to the Taliban when it ruled Afghanistan, and implemented its version of sharia law, who had been admitted to Yale University as a non-degree student. Prof. Koh participated in a debate entitled "The Taliban: Pros and Cons" arranged by the University. His role was to present the "con" side at the request of Prof. Gustav Ranis, then at the Yale Center for International and Area Studies. Prof. Koh publicly challenged several policies of the Taliban that marginalized and harmed women, such as the inability of women to receive medical care or to walk freely within society. Rahmatullah retorted that his wife and daughter can do those things, implying that Prof. Koh was "misguided" about Taliban policies. Rahmatullah, of course, failed to see the hypocrisy in his comments: his wife and daughter—women of obvious privilege—could enjoy such normalcies while the majority of Afghan women would risk being stoned for doing so.

The juvenile death penalty allegation comes from an article by Meghan Clyne in the New York Post, which claims that Koh believes that the Convention on the Rights of the Child (CRC) (a treaty ratified by almost all the states of the world except the United States and Somalia) should dictate the age at which individuals can be executed. It is true that the CRC at Article 37(a) requires that states parties ensure that:

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

Clyne apparently missed that the issue has already been decided—by the U.S. Supreme Court. In Roper v. Simmons (2005), the Court held that the Eighth and Fourteenth Amendments of the U.S. Constitution forbid the execution of offenders who were under the age of 18 when their crimes were committed. In so ruling, the Court found a national consensus against the practice in light of

• the rejection of the juvenile death penalty in the majority of U.S. states (and its rare use even where it remained on the books) and
• the consistent trend toward its abolition.

In addition, the Court invoked “the evolving standards of decency that mark the progress of a maturing society” to determine that such punishments were so disproportionate as to be cruel and unusual. Justice Kennedy writing for the majority noted:

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. … The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

The third claim about the “torturer-in-chief” comment seems to come from a misreading (or failure to read) an article by Koh in the Indiana Law Journal in which Koh addressed the question of whether, as a legal matter, the Office of the President could constitutionally order torture. His answer was “no”:

Competing schools of constitutional interpretation all accept that the Constitution does not authorize the President to be Torturer-in-Chief. . . . [W]hen the commander in chief becomes torturer in chief, his orders have crossed the line from legal to illegal conduct. ... The President cannot, on his own constitutional authority, authorize violations of jus cogens [non-derogable] norms. ... And even in the gravest national circumstances, the Constitution does not preauthorize the President, his subordinates, or anyone else, to torture someone in U.S. custody using either a rationale of self-defense or a defense of necessity.

This position has been echoed by many others in the beltway and academia, including President Bush himself, who said as such in a 2006 interview with Bob Schieffer (CBS News):

SCHIEFFER: … [T]he question I have, Mr. President, is: Do you believe that there is anything that a president cannot do, if he considers it necessary, in an emergency like this?

PRESIDENT BUSH: That's a--that's a great question. You know, one of the--yeah, I don't think a president can tort--get--can order torture, for example. I don't think a president can order the assassination of a leader of another country with which we're not at war. Yes, there are clear red lines …

Finally, Mother’s Day. Koh — among many others — has advocated that the United States consider joining the Convention on the Elimination of Discrimination Against Women (CEDAW) —a treaty that most of the world, save the United States and a handful of Middle Eastern and African states, has ratified. Koh was invited to discuss this issue before the Senate Foreign Relations Committee and also put forth his position in the Case Western Law Review (2002). A footnote from this article seems to be the source of the bizarre claim.

Koh, in debunking several misconceptions about CEDAW, wrote at note 51 that:

One such preposterous claim, for example, is that U.S. ratification of the CEDAW would somehow require the United States to abolish Mother’s Day. This claim twists a statement in the CEDAW Committee’s report on Belarus, which spoke negatively about a Belarusian holiday that discouraged women from working in the marketplace, by celebrating and encouraging only those mothers who work in the home. Rather than denigrating motherhood, the CEDAW’s central aim is to support motherhood, by promoting women’s freedom to make choices on an equal basis with men. Nothing in that goal conflicts with the American tradition of celebrating both Mother’s Day and Father’s Day every year, as expressions of this country’s commitment to full gender equality, consistent with the nondiscrimination goals of the CEDAW.

As someone who regularly enjoys breakfast in bed on Mother's Day, I say "here, here."

I have little doubt that those involved in the confirmation process will be able to separate out fact from fallacy and confirm Harold Koh as Legal Advisor to the State Department.

As the Acting Deputy Spokesperson for the State Department stated on the record to Fox:

Dean Koh is universally respected for his legal scholarship, and previously served as an Assistant Secretary of State - and was praised for his work by Republicans and Democrats alike. President Obama and Secretary Clinton strongly believe he's the right person for the job.

Koh has also received kudos from former Bush Administration Solicitor General Ted Olson. More on the Harold Koh nomination and the over-zealous right-wing attack on Koh is available here.

Sharia Courts in the UK

According to this week's Sunday Times, the Muslim Arbitration Tribunal has set up five Sharia courts throughout the United Kingdom. These courts hear solely civil cases, including divorce, domestic violence, and inheritance cases. The Sharia courts have been classified as arbitration tribunals under the same provision of the 1996 Arbitration Act used by Jewish Beth Din courts, which have resolved civil cases in Britain for over 100 years. As long as "both parties in the dispute agree to give it the power to rule on their case", the decision of an arbitration tribunal is legally binding and enforceable through British county courts or the High Court.
While Muslim women who choose to use these Sharia courts for family law disputes are surely capable adults entitled to make their own decisions, the track record of the courts on women's rights thus far is concerning. For example, in a recent inheritance case, the court divided a man's estate by giving twice as much to his two sons as it did to his three daughters. And in six recent domestic violence cases, the court ordered the husbands to take anger management classes and participate in mentoring with community elders; the women withdrew their complaints from the police, who stopped investigations.
Can these courts be reconciled with British and European laws protecting gender equality? Given that participation requires consent of both parties, it may be difficult to find a plaintiff to challenge the courts' unequal treatment of women. Perhaps a more fruitful course is suggested by Zareen Roohi Ahmed, the chief executive of the British Muslim Forum, an umbrella organization for mosques in the UK. Noting that sharia courts in Britain are still poorly organised, she proposes that the government support professionalization of the courts, including "female involvement . . . on the decision-making panels . . . and a wider range of scholars and academics involved to put more thought into making the rules and regulations applicable to today's society." It's a thorny problem, to be sure, but by engaging with these courts rather than shutting them down, the British government might, in the end, protect the rights of more women.

Cross-posted on Concurring Opinions