Can Forced Labour of Immigrant Workers in the Middle East be Regarded as Slavery?
When most people think of slavery, they instinctively think of colonialized Africa or the discrimination faced by the African Americans in the US. They feel that slavery is a thing of the past and with the evolution of mankind and society, those barbaric practices have ceased to exist. What they fail to observe is that slavery still subsists in numerous ways, even if it is not in the orthodox or traditional way. Despite the fact that slavery may not have the guise of law as it once did in places like Arabia, America, and Africa, it is still prevalent in various parts of the world where the powerful and wealthy exploit the poor and powerless. The term, ‘slavery’ is one which seems to bring to mind a number of human right violations and is actually one practice which various countries as well as the United Nations have worked hard to abolish in order to not adversely affect human rights and dignity. One such region of the world where a practice which could be considered a modern form of slavery is still in exercise is the Middle East which includes places like UAE, Qatar, and the like. Aside from being a hub for tourists, these places are also seen attractively by labourers and other blue-collar workers from developing countries including Pakistan, India, and Bangladesh as well as the poor parts of Africa due to the fact that they feel they can earn more here as compared to their home countries and so can do a better job of providing for their families. The host countries also prefer these workers too as they have to be paid comparatively less and these states provide for their locals so that they do not have to partake in any of the manual labour. On the face of it, it seems like a win-win situation for all the parties involved. The reality however, is in stark contrast and will be explained in the following paragraphs. The first part of this paper will focus on the issue and hand and give details of the processes through which workers are brought into the host countries and the sort of oppression that they have to face. Following that, I will look at the international law and UN position on forced labour and slavery including various charters and conventions with a special focus on the distinction made between the two practices. Case law regarding the same will also be looked at. The final part of this paper will combine the first two parts and declare what the practices prevalent in the Middle East should actually be described as and what difference it would make to describe as something other than forced labour.
The Middle East is home to an estimated 25 million of migrant workers[1]. The most attractive destinations are the Gulf Cooperation Council (GCC) countries as they are experiencing the most rapid economic growth and therefore provide more job opportunities because they need better infrastructure. In order to manage this large influx of migrant workers, countries in the region rely on the kafala or sponsorship system, which is based on historical principles of hospitality governing the treatment and protection of foreign guests. Over time, this has become formalized in the various national legal frameworks that determine the terms of residence and employment for migrant workers, and today the kafala system governs the lives of most migrant workers in the Mashreq and GCC countries[2]. Under the kafala system employers are kafeels (sponsors), who determine their demand for labour and meet it either by direct recruitment or through intermediaries, such as Private Employment Agencies (PEAs). A migrant worker’s immigration status is thus specifically tied to an individual sponsor for their contract period[3]. Such workers are thereby rendered more vulnerable by the lack of autonomy in relation to their employers[4]. The ILO Committee of Experts has noted that the kafala system in certain countries in the Middle East may be conducive to the exaction of forced labour and has requested that the governments concerned protect migrant workers from abusive practices[5].
The ILO’s most recent estimate puts the number of victims of forced labour in the Middle East at 600,000. While some migrants voluntarily look for work and apply to companies and households in the Middle East, some are the subject of deception from the employers as well. This means that either the contract that they are asked to sign is false or the oral agreement made, in the case of household jobs, is breached. Moreover, they are either not given the jobs that they have been promised or the working conditions and stipends vary vastly from what the agreement entitled them to. Agents or organizations visit villages and rural areas of the developing countries and market their respective country as a source of employment so as to attract the workers[6]. The potential employees are usually uneducated and are presented the opportunity in such a way that they are in no doubt that anything could go wrong. As a result, they readily sign up for the journey while having no clue about what lies in store for them. Moreover, there are multiple “push” factors for migrating, which include raising cash, leaving extreme poverty, and being able to provide education to children or health care to sick relatives back home. In addition, lack of job opportunities and high unemployment rates in developing countries also play a key role in the migrations[7]. While this sort of employment and trafficking is done by the organizations directly themselves, sometimes PEAs play an important role as well. PEAs in countries of origin are also known to facilitate the travel of migrants even when their own governments have issued bans on deployment of domestic workers because of recurring human rights violations against domestic workers in the countries of destination[8]. Hence, this is how human trafficking of labourers from the developing countries to the Middle East happens. Workers are desperate to get out of their home countries in order to improve the standard of living and they are deceived and taken to the Middle Eastern countries through PEAs or the companies directly are involved in this. These practices may or may not be state-authorized, but the lack of implementation of laws means that it is the state’s responsibility to clamp down on such practices which result in oppression and human rights violations.
The working conditions for the immigrant workers in the Middle East are degrading to say the least; but, to discuss those is not the purpose of this paper. One aspect of forced labour however that can also be said to be an element of working conditions is the impossibility of leaving one’s job. It is common knowledge that passports and residency cards of the workers are seized once they enter the Middle either by the organizations, or families, or agencies, whatever the case may be. The retention of passports is justified by employers on the basis of the kafala system as under that system, they are legally responsible for the residency and employment of their domestic workers[9]. This way, the workers are completely at the mercy of their employers and are unable to exit the host country and go back home. As a result, they are forced to work and have literally no other option but to do so. The summation of the above paragraphs is as follows; workers are hired, sometimes through deception, from developing countries after which they are brought to the Middle East where they are subject to degrading working conditions and more importantly, have their freedom to movement taken away so that they cannot leave their jobs or the country.
The Palermo Protocol of 2000 which is also known as the Protocol to Prevent, Suppress, and Punish Trafficking in Persons was a supplementary to UN Convention against Transnational Organized Crime. Article 3 of the said Protocol defined ‘human trafficking’ in the following words:
“(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; (b) 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; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article”.
The Palermo Protocol is clearly linked to the ILO Forced Labour Convention, 1930 (No. 29), Article 2(1) of which defines forced labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. As the ILO Committee of Experts on the Application of Conventions and Recommendations clarified in its General Survey in 2007:
“A crucial element of the definition of trafficking is its purpose, namely, exploitation, which is specifically defined to include forced labour or services, slavery or similar practices, servitude and several forms of sexual exploitation. The notion of exploitation of labour inherent in this definition allows for a link to be established between the Palermo Protocol and Convention No. 29, and makes clear that trafficking in persons for the purpose of exploitation is encompassed by the definition of forced or compulsory labour provided under Article 2, paragraph 1, of the Convention. This conjecture facilitates the task of implementing both instruments at the national level[10]”.
It is clear from the above definition and excerpt that human trafficking as well as forced labour is occurring in the Middle East. Moreover, interestingly, most countries in the Middle East have ratified the Palermo Protocols as well as the Forced Labour Convention; but, implementation of these is clearly an issue. How are these practices different from slavery however?
The 1926 Slavery Convention provided the first international definition of slavery as follows:
“The status or condition of a person over whom any or all the powers attaching to the right ownership are exercised…[and] included all acts involved in the capture, acquisition, or disposal of a person with intent to reduce him to slavery; acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and in general, every act of trade or transport in slaves[11]”.
The striking difference between slavery and forced labour observed from the definition above is that no element of ownership is present in forced labour. However, a statement from an interview with an official from the Kuwait Lawyers association proves otherwise:
“The private recruitment agencies sell and buy domestic workers and they actually use that language of ‘buying’ and ‘selling’”[12].
While I realize that this would not be true for all cases of forced labour, I am not even calling for recognition or consideration of all forms of forced labour as slavery. All slavery involves forced labor but not all forced labor involves slavery[13]. An important point to note is that the law allows for exceptions to the prohibitions on forced labour. Article 2 of the ILO Convention (No. 29) allows for certain forms of forced labour for (a) military service, (b) when it is part of the “normal civic obligations of the citizens,” (c) convict labor performed for a public authority, (d) when necessary in “cases of emergency” and (e) “minor communal services” by members of the community for the community. On the other hand, the prohibition on slavery is absolute. Moreover, when an individual is forced to work against his or her will, under the threat of violence or some other form of punishment, their freedom is restricted and a degree of ownership is exerted over them. This is why new forms of forced labour and human trafficking are often called contemporary slavery[14]. Kevin Bales, in his book, “Disposable People”, states that contemporary slavery is “the complete control of a person, for economic exploitation, by violence, or the threat of violence”.
It is no surprise to see that there is a vast amount of case law available which tried to make or explain the distinction between forced labour and slavery. One such case is Siliadin v. France which was heard before the European Court of Human Rights. The case is described as follows:
“The applicant, a Togolese national having arrived in France in 1994 with the intention to study, was made to work instead as a domestic servant in a private household in Paris. Her passport confiscated, she worked without pay, 15 hours a day, without a day off, for several years. The applicant complained about having been a domestic slave. The European Court of Human Rights found that the applicant had not been enslaved because her employers, although exercising control over her, had not had “a genuine right of legal ownership over her reducing her to the status of an “object”[15].
This case can be compared to the situation in the Middle East because the elements of deception as well as horrible working conditions and restrictions on movement are all present here. However, the court ruled that this was a case of forced labour and not slavery and I fail to see why. The court ‘referred briefly and dismissively to the possibility that the applicant was a slave within the meaning of Art 1 of the 1926 Slavery Convention’[16]. Furthermore, the court’s argument that no genuine right of legal ownership was manifest can be rebuked by the fact that since slavery is illegal in France, no exercise of a right of ownership could ever be possible[17]. Hence, if the court’s statement is taken at face value, this would mean that slavery would never be possible in any country, as most of them have completely abolished slavery, and this would be an absurd position to hold.
Another important case which helped in establishing the modern legal definition of slavery is R v. Tang (2008) 237 CLR 1. This is a 2008 case and is regarded as a landmark judgment of the Australia High Court. The ICTY and the European Court of Human Rights have come to diverging conclusion as to what actually constitutes slavery in the Kunarac case and the Siladin case respectively. Because the ECHR depended on the definition of slavery provided by the 1926 Slavery Convention, they were unable to find the employers guilty in the Siladin case[18]. In hindsight they should have adopted a more recent or modern definition which would have accounted for the changes in society and could probably have been more likely to serve justice. By contrast, the Appeals Chamber of the ICTY observed that: the law does not know of a ‘right of ownership over a person’. Article 1(1) of the 1926 Slavery Convention speaks more guardedly ‘of a person over whom any or all of the powers attaching to the right of ownership are exercised.’ That language is to be preferred[19]. Hence, there were two contrasting point of views and an authoritative decision was required which is just what the Australian High Court provided.
The respondent, Wei Tang was initially found guilty by the County Court of Victoria on five counts of possessing slaves and five counts of using slaves in relation to five women of Thai nationality used as sex workers in a brothel in 2002 and 2003. The women, who had worked in the sex industry in Thailand, had come to Australia voluntarily to work as sex workers. They were escorted during their flight and upon arrival were ‘treated as being “owned” by those who procured their passage[20]. The trial judge noted that the women were vulnerable upon arriving in Australia, spoke no English, had little to no money, knew nobody and were not aware of either the terms of their debt or their expectant living conditions. They were required to keep hidden to avoid the immigration authorities and their passports and return tickets were kept by Wei Tang[21]. Even though these women were well look-after, their freedom and movements were restricted and they well not allowed to leave the premises. The Court of Appeal of the Supreme Court of Victoria held that the convictions and sentences in the trial be quashed because the instructions given to the jury had not been adequate, after which the state brought the case to the High Court[22].
The Criminal Code Act of Australia defines slavery in the following way:
“For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person”[23].
The definition provided in the Criminal Code Act differs from the one provided in the 1926 Slavery Convention in that the Slavery Convention speaks of the ‘status or condition’ whereas the s 270.1 definition mentions only the ‘condition’ of slavery[24]. The main contention in the case was regarding the meaning of slavery and the court tried to address that question in as much detail as possible.
The court observed that the definition of slavery according to Section 1 of the 1926 Slavery Convention was the one on which various subsequent definitions were based in both international law as well as domestic, including the one in Australian law. Hence, this was the definition that they decided to analyze with the main aim being to determine its purpose and context[25]. Eventually the court held that the definition given in the Slavery Convention applies to both de jure and de facto slavery[26]. This means that practices which are slavery according to law as well as those which may not strictly conform to the law but in practice are the same or similar to slavery should also be regarded and treated as such. The court reached this conclusion through three observations; firstly, there was no longer any legal status of slavery in various countries; secondly, the Slavery Convention strived for the same situation in all countries and; thirdly, the phrase ‘status or condition’ found within the definition of the Slavery Convention makes the distinction between de jure and de facto slavery since status is a legal concept[27]. Taking into consideration the first and second observations made, the majority of the Court reasoned that ‘the evident purpose of the reference to “condition” was to cover slavery de facto’[28]. Moreover, the court also observed that the ‘definition turns upon the exercise of the power over a person’ and that in de facto conditions the ‘definition was addressing the exercise over a person of powers of the kind that attached to the right of ownership when the legal status was possible’[29]. So the question to be addressed now was that what factors would imply that a power conjunctive to a right of ownership has been exercised. The court responded to this question by holding that the capacity to make a person an object of purchase, the capacity to use a person and a person’s labour in a substantially unrestricted manner, and an entitlement to the fruits of the person’s labour without compensation commensurate to the value of the labour, would entail slavery[30]. Furthermore, the court noted that it was ‘unnecessary, and unhelpful’ in the present case ‘to draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage’[31]. Instead the Chief Justice noted that the concepts were not mutually exclusive, that the 1956 Supplementary Convention recognized the possibility that servitude could slip into slavery where it manifests powers attaching to the right of ownership, and that those ‘who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy’[32]. Hence, this ruling of the Australian High Court resulted in the blurring of the lines between forced labour and slavery and actually caused people to believe that slavery is not extinct, as they thought, but still widely prevalent over the world in various forms.
In light of what has been discussed, it would not be difficult to argue that the practices discussed in the earlier part of the essay prevalent in the Middle East would constitute slavery. However, it is important to consider what outcomes such a change in perception would result in. One would expect that once some practices are started calling slavery, they may result in more media attention and that in turn, might translate into better efforts by the Middle Eastern countries to enforce and regulate human rights laws. Moreover, various domestic as well as international NGO’s may become more active in playing their role to reduce human right violations in this context. This is not to say that the term ‘forced labour’ does not carry negative connotations of its own, however, it pales in comparison to the stigma attached to slavery because of its historical significance among various other reasons. Forced labour does not have a history of its own per se, but was seen as an element of slavery in the olden times. Hence, it fails to create the desired effect and does not raise public sentiment and sympathy as it should. Most people would be of the opinion that forced labour is very wrong and should be stopped at all costs but would not protest as much as they would if they were told that something like slavery is still happening somewhere. Calling these practices slavery would raise more hue and cry in the international community as the word carries a stigma attached to it which portrays it, rightly so, as the most inhumane practice there is. By terming it forced labour, the practices does not seem as derogatory and oppressive as it should mainly because, the world ‘labour’ implies employment and hence consent. Moreover, no harm is seen in people migrating in order to live a better life and if one chooses to do so, they should be willing to work hard and make sacrifices. However, as discussed above, consent is sometimes circumvented through deception and even the definition of forced labour provided in the Palermo Protocol renders consent irrelevant in these cases.
While it would be foolish to assume that all forced labour is a form of slavery, it would be even more foolish to hold that no forced labour can be slavery. Forced labour is very rampant for immigrant workers in the Middle East and starting to describe it as slavery can go a long way in helping to bring about legal and social reforms in the region. There is still a fine line between slavery and forced labour, however, acceptance of the fact that the two are not mutually exclusive and slavery is not extinct in the modern world, should be encouraged. This would ensure that the states make extra efforts to protect the rights of immigrant workers and they are able to achieve the goal they set out to achieve in the first place.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.
[1] 5 Economic and Social Commission for Western Asia, A Conceptual Framework for Integrating Migration into Development Planning in the ESCWA Region, Technical Paper 4, October 2010.
[2] N. McGeehan: “Trafficking in persons or state sanctioned exploitation? The false narrative of migrant workers in the United Arab Emirates”, in Immigration, Asylum and Nationality Law (2012, Vol. 26, No. 1), pp. 29–30.
[3] Migrant Forum Asia: Policy Brief No. 2: Reform of the kafala (sponsorship system) (Quezon City, 2012), p. 1.
[4] ILO: Giving globalization a human face: General survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, Report III(1B), International Labour Conference, 101st Session, Geneva, 2012, pp. 126–27.
[5] Ibid
[6] Helene Harroff-Tavel and Alix Nasri, ‘Tricked And Trapped: Human Trafficking In The Middle East’ (ILO 2013).
[7] Ibid
[8] Helene Harroff-Tavel and Alix Nasri, ‘Tricked And Trapped: Human Trafficking In The Middle East’ (ILO 2013).
[9] Ibid
[10] ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR): Eradication of forced labour: General Survey concerning the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105) (Geneva, 2007), p. 41
[11] “Slavery Convention.” Geneva: Office of the United Nations High Commissioner for Human Rights, September 25, 1926
[12] Helene Harroff-Tavel and Alix Nasri, ‘Tricked And Trapped: Human Trafficking In The Middle East’ (ILO 2013).
[13] Ann Jordan, ‘Program On Human Trafficking And Forced Labor’ (American University Washington College of Law 2011).
[14] ‘Forced Labour’ (ILO 2008).
[15] ‘Factsheet – Slavery, Servitude And Forced Labour’ (European Court of Human Rights 2014).
[16] Tang [2008] HCA 39 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ, 28 August 2008) [30].
[17] Tang [2008] HCA 39 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ, 28 August 2008)
[18] Jean Allain, ‘CASE NOTES R V TANG* CLARIFYING THE DEFINITION OF ‘SLAVERY’ IN INTERNATIONAL LAW’ (2009) 10 Melbourne Journal of International Law.
[19] Kunarac (Appeals Chamber) Case No IT-96-23 and IT-96-23/1-A (12 June 2002) (Judgment) [118]
[20] Jean Allain, ‘CASE NOTES R V TANG* CLARIFYING THE DEFINITION OF ‘SLAVERY’ IN INTERNATIONAL LAW’ (2009) 10 Melbourne Journal of International Law.
[21] Ibid
[22] Ibid
[23] Criminal Code Act 1995 (Cth) s 270.1
[24] Jean Allain, ‘CASE NOTES R V TANG* CLARIFYING THE DEFINITION OF ‘SLAVERY’ IN INTERNATIONAL LAW’ (2009) 10 Melbourne Journal of International Law.
[25] Tang [2008] HCA 39 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ, 28 August 2008) [25], citing Jean Allain, The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (2008).
[26] Jean Allain, ‘CASE NOTES R V TANG* CLARIFYING THE DEFINITION OF ‘SLAVERY’ IN INTERNATIONAL LAW’ (2009) 10 Melbourne Journal of International Law.
[27] Ibid
[28] Tang [2008] HCA 39 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ, 28 August 2008) [25].
[29] Amicus Curiae Brief, R v Tang (High Court of Australia) (HREOC, Submission in Support for Leave to Intervene and Submissions on the Appeal, 5 May 2008) 15
[30] Tang [2008] HCA 39 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ, 28 August 2008) [26]
[31] 3 Tang [2008] HCA 39 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ, 28 August 2008) [28].
[32] Ibid
