By INA ALLECO R. SILVERIO
MANILA — Guilty of massive crimes against migrant workers.
An international tribunal, the first on the theme of migrants, has declared 37 governments guilty of using migration to advance neoliberal globalization policies and of violations of the economic, social, cultural and political rights of migrants by sending and receiving states.
Organized by the International Migrants Alliance, International League of Peoples Struggle, International Women’s Alliance and the Asia Pacific Mission for Migrants, the two-day tribunal proceedings was held to try the Global Forum on Migration and Development and its Steering Committee comprised of 37 governments.
Held at the University of the Philippines College of Law from November 28-29, the trial was presided over by a panel of judges who heard testimonies given by experts on migration and migrant workers, from various countries, who have suffered from migrants’ rights violations. The jurists were Osamu Niikura, from Japan, of the International Association of Democratic Lawyers, Bp. Soritua Nababan, from Indonesia, of the World Council of Churches, renowned theatre actress and Filipino women’s rights activist Monique Wilson, Mexican human rights lawyer Ana Lorena Delgadillo Perez, and UP College of Mass Communications Dean Roland Tolentino.
The 37 States found guilty are Argentina, Australia, Bangladesh, Belgium, Brazil, Canada, Ecuador, Egypt, France, Germany, Ghana, Greece, India, Indonesia, Israel, Japan, Kenya, Mauritius, Mexico, Morocco, Netherlands, Norway, Philippines, Portugal, Qatar, Republic of Korea, Senegal, South Africa, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom, and the United States of America. They were found guilty on three charges, namely:
Violation of the Complainants’ human rights.
Criminal neglect of Complainants’ economic rights and violations of their political, economic, social and cultural rights by the Sending States.
Violation of the Complainants’ political, economic, social and cultural rights by the Receiving States.
They were also found guilty of violating provisions and principles embodied, among others, in the:
1948 Universal Declaration of Human Rights;
1966 International Covenant on Economic, Social and Cultural Rights;
1966 International Covenant on Civil and Political Rights;
1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;
The 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol;
1979 Convention on the Elimination of All Forms of Discrimination against Women;
1965 International Convention on the Elimination of All Forms of Racial Discrimination;
1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment;
1989 Convention on the Rights of the Child;
1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols;
ILO Migration for Employment Convention (Revised); and
ILO Convention on Decent Work for Domestic Workers (C189).
The verdict will be submitted to the High-Level Dialogue on International Migration and Development, which will convene in New York, USA in 2013.
The witnesses gave testimonies on themes such as migration for development, condition of migrants, human rights violations of migrants from Latin America, on the labor export program and the violations of rights of undocumented migrants, refugees, temporary migrants especially women migrants, and seafarers.
Among the witnesses who gave their testimonies were Malaysian migrant and human rights activist Irene Fernandez who founded the migrants rights advocacy group Tenagita; and Jose Jacques Medina, coordinator and co-founder of the Meoamerican Migrant Movement (M3). The M3 campaigns for the full rights of Central-American migrants in Mexico and their right to free and safe transit to the United States.
Human rights violations in global migration policies
In her testimony, Fernandez said the international community and governments should address the issue of migration as it has become one of the defining global issues. She said over 300 million people, including 10.4 million refugees, live and work outside of their home countries.
“Human mobility touches every nation; but it is no more just a free and informed choice especially for people involved in contractual labor. Unskilled labor migration has become in the last 30 years the most significant aspect of human mobility. This form is of labor mobility is highly structured, organized and planned to ensure maximum profits. This multibillion dollar migrant industry recognizes the human being solely as an overseas contract worker; recruited, made to pay for his placement, and exported as a commodity for their own governments,” she explained.
Fernandez blamed governments and international institutions for commodifying migrants, saying that even the agencies of the United Nations and international finance agencies such as the International Monetary Fund (IMF) and the World Bank (WB) give a high level of importance on labor export and pressure governments to increase remittances of their overseas contract workers.
“Governments look at remittances as a tool for development and a means to repay global debt. They have actually put a positive spin on massive forced migration and commodification of workers. They have the gall to call it a ‘tool for development’ when it fact it results in the decimation and break-up of families, the exploitation of millions of workers and the uneven distribution of wealth and power in the world,” she said.
Fernandez said the proof that the UN itself is guilty of commodifying migrant labor is when it organized its first high level dialogue in September 2006 by creating the Global Commission Report on Migration. She said the report began as a study on the human rights of workers, “But it was replaced by another that emphasized using remittances as a tool for development within the migration process,” she charged.
The human rights advocate also decried that there is no human rights-based approach when it comes to migration.
“Why isn’t there a human rights-based approach? Migration is a human right and a legal activity. It’s not all negative, but the institutionalized exploitation of migrants had more negative effects than positive ones.”
She said the rights of migrants are violated with impunity and supported by employer sanctions and policies by governments, especially in the Gulf Coordinating Council (GCC) countries in the Middle East and the tiger economies of Asia.
The issue of migration, she also said, has become an issue of national security and migrants are often victimized by policies that are supposedly aimed at protecting the sovereignty and security of host countries.
“The public sphere places migration within a ‘security logic.’ The security agenda of various states creates a continuum of threats and general unease in which many different actors exchange their fears and beliefs in what makes a risky and dangerous society. Politicians and leaders transfer the legitimacy they have to impose stringent measures not so much against terrorists, criminals, spies and counterfeiters but against other targets — notably transnational political activists, people crossing borders, or people born in the host country but to foreign parents,” she said.
The ‘unholy trinity in migration: employer, agency, and the state’
On the matter of criminalization of migrants, Fernandez said, there is no clear line between irregular migrants/undocumented or regular migrants.
“There’s the perception among enforcement agencies, policy makers and even international institutions that irregular migration ‘steals their way in’ through irregular channels. This situation exists, but it is not the only reason migrants become undocumented,” she said. She then went on to give specific examples of the situation in Malaysia, saying that 80 percent of undocumented migrants actually entered the country legally, but many become the victims of various manipulations of the labor system.
“Companies outsource labor and recruitment agencies to sub-contract recruitment to other brokers in source countries. For instance, a migrant worker in Nepal pays a fee for a security guard or personnel position, but arrives on a plantation visa. He then becomes undocumented. He is imprisoned and whipped, although he did not pay for the visa. Also, employers in Malaysia confiscate and hold the passports of their workers and do not renew work permits, but it’s the worker who is punished if caught without a passport and if his work permit is expired,” she said.
“The key question is the issue of one’s status in the host country. The right to stay in a country is an administrative problem and offense. Why should a worker — who is more often than not a victim of circumstance and deliberate unfair labor policies — be held accountable rather than the recruitment agency or the employer?”
Fernandez said that in Malaysia, 95 percent of arrested migrant workers do not receive any form of legal representation because lawyers are not allowed to visit migrants; the embassies do not receive information about the arrests or if they do, they fail to take action; and the National Legal Aid Foundation excludes all foreigners from receiving legal support.
“One of the major violations of rights of undocumented workers is that they cannot access the justice system or health care. Many of the destination countries fail to recognize the labor rights of undocumented migrants; only documented migrants have rights. State policies emphasize the individual rights of migrants more narrowly by emphasizing their ‘non-citizen’ legal status,” she argued.
At the end of her testimony, Fernandez called the migration business where the brokers or intermediaries — governments, recruitment agencies, the institutions on migration policies — are “the new mafia.”
“In today’s international, imperialist form of migration control, there is not only the employer but the agency and the state that act in unison as an unholy trinity to enslave the voiceless migrant worker. They do not recognize human or labor rights. The system is organised and structured to make money and profit rather than to protect and recognize the dignity of workers and migrants,” she said.
Mexico, US guilty of massive crimes against migrants
In his own testimony, Mexican human rights activist Medina said there is a continuing need to defend the rights of mobility and transit of migrants bound for the US. He said his group organizes mobilizations, social centers and Union defense for undocumented workers in the western states of the US.
“The fourth GFMD and governments supporting it promotes policies which are contrary to international human rights conventions on human mobility that were signed and ratified by their respective countries. Countries like the US, Mexico, Guatemala, Honduras, El Salvador, Ecuador, Chile, Peru, Columbia, Brazil, Morroco, Libya, Israel, South Africa, the Philippines, Canada and the members of the European Union (EU) are guilty of crimes against humanity because of their brutal treatment and exploitation of hundreds of thousands of migrant workers,” he said.
Medina said that in a previous tribunal M3 joined – the International Tribunal of Conscience of the Peoples in Movement – he presented cases of past and present violations against the human rights of migrant workers from Mexico. The same cases were the ones he also presented to the 1st International Migrants Tribunal of the ILPS et al.
“The governments of Mexico and the US are guilty for the slaughter or massacre of 72 migrants in San Fernando, Tamaulipas on the borders of the US. The victims came to Mexico, on the the way to the US, and they were from Honduras, El Salvador, Guatemala and Brazil. on August 23, 2012, their bodies were found in Rancho San Fernando: 58 men, 14 women and several children,” he said. “It was the worst collective crime of its nature in Mexican history.”
Medina also brought to the tribunal’s attention the matter of the disappearance of 70,000 migrants en route to the US through the bordering Mexican states. He said the M3 has secured the testimonies of survivors of the systematic pattern of harassment and attacks of state authorities against migrants who use the US-Mexican border to enter the US.
“The perpetrators and the states they represent are guilty of murder (executions), kidnapping and enforced disappearances besides their violations against migrant rights such as the right of freedom of transit. Mexico’s pro-imperialist government is tainted by the blood of more than 60,000 people who were murdered in the so-called war against organized crime, drug trafficking and human trafficking. It sold and betrayed Mexico’s national sovereignty in the interest of transnational financial capital. The Mexican people have paid a hefty price for this policy and Mexico’s pronouncement that the country’s security is no less the security of the US itself,” he said.
The human rights advocate said that in the name of national security, which is actually the exclusive defense of US security, the Mexican territory has become the largest immigration checkpoint in the world.
“Without official statistics but based on the estimates of experts, reports and testimonies of the families of the disappeared, there have been more or less 60-70,000 missing migrants since the beginning of the Mexican-US ‘war against organized crime since 2006. The Mexican government and the US both deny this, they simply divert blame to so-called organized crime syndicates, but there are multiple accusations and evidence of government complicity as shown by their acts, omission or simple neglect to address the situation,” he pointed out.
In his concluding statement, Media said the Mexican government is subservient to the demands of the US and continues to be deaf, dumb and blind to the violations against the rights of migrants.
“The policy it has adopted has been anti-migrant, anti-people, pro-capitalist and pro-imperialist, which has resulted in the oppression and repression of migrants and their rights,” he said.