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CONTENTS Acknowledgments I. Summary II. Key Recommendations III. Context IV. Profiles V. International Legal Standards On Trafficking In Women VI. Recruited In Thailand--Sold On Japan VII. Servitude In The "Snack Bars" VIII. Deportation As "Illegal Aliens" IX. Response Of The Japanese Government X. Response Of The Thai Government XI. International Response XII. Recommendations
International Organization For Migration (IOM) International Labor Organization (ILO) World Health Organization (WHO) |
IX. RESPONSE
OF THE JAPANESE GOVERNMENT
Undocumented foreigners are entitled under international law to the same basic human rights protections as all other individuals. These rights include the right to be free from slavery-like practices and forced labor, the right to be free from torture and other cruel or degrading treatment, the right to a fair trial, and the right to freedom from discrimination. These rights are also guaranteed under the Japanese Constitution and reflected in domestic legislation. Yet, in practice, women trafficked from Thailand into Japan's sex industry are rarely afforded such protections. High-ranking Japanese officials have acknowledged trafficking as a persistent and large-scale problem, but the government has yet to make a serious effort to address the abuses connected with it. Trafficking in persons typically involves multiple actors and a range of abuses. Efforts to combat it must be designed to respond to each of the human rights abuses and to provide victims with strong incentives to come forward, report crimes, and cooperate with law enforcement officials. The Japanese government lacks policies designed specifically to respond to trafficking and has yet to aggressively enforce existing laws against forced labor, forced prostitution, illegal confinement, coercive job placement, and other severe abuses committed against trafficked women by traffickers and employers. Indeed, instead of guaranteeing the safety of trafficked persons and ensuring their access to compensation and redress, the government all too often effectively penalizes them for abuses that have occurred as a result of their having been trafficked. Human Rights Watch found
that while brokers and snack bar employers were sometimes charged with
employing illegal aliens, failing to properly register their business under
the Entertainment Businesses Law, or procuring prostitutes for customers,
evidence of more serious crimes was rarely investigated. Furthermore, victims
of trafficking and debt bondage were deported as illegal aliens without
any opportunity to seek compensation for the abuses they had suffered,
and no government resources were provided for their shelter, medical care,
travel expenses, or other necessary services.
At a seminar organized by the Thai Embassy in Tokyo in September 1999, Japanese officials reiterated their understanding of the problem of trafficking and their concern for the victims. The seminar was designed to identify the problems faced by Thai sex workers in Japan and to discuss possible solutions. Toshikino Itami, director of the enforcement division of Japan's Immigration Bureau, explained that many women from Thailand are "sold" to sex business operators for more than four million yen, and then are forced to repay this amount before they can begin earning money for themselves. He also noted that in most of these cases, the women's passports are confiscated by their employers. (427) In January 2000, Japan's Ministry of Foreign Affairs sponsored its own conference on trafficking, the "Asia-Pacific Symposium on Trafficking in Persons." The Senior State Secretary for Foreign Affairs, giving one of the key-note statements, acknowledged the seriousness of the problem of trafficking and cited Japan's participation in international efforts to frame responses to the issue as evidence of his government's concern. (428) But neither the President of the International Criminal Police Organization (Interpol), Toshinori Kanemoto, nor the Director-General of the Immigration Bureau, Yukio Machida, pointed to any concrete efforts to combat trafficking beyond investigating and prosecuting traffickers for facilitating illegal migration, a charge that scarcely begins to address the range of abuses perpetrated against trafficking victims. Moreover, Machida expressed doubts about whether there really is a significant trafficking problem in Japan, claiming that incidents of coercion are rare and the majority of so-called "trafficking victims" are merely illegal migrants with crime syndicates "behind them." A similar attitude was evident during Kanemoto's comments; as evidence of Japan's efforts to combat trafficking, he cited statistics for the number of "stowaways" arrested on charges of entering the country illegally and the number of foreign women arrested on charges of prostitution, indecency, or violating the Entertainment Businesses Law. No statistics were provided regarding the arrests of traffickers or employers of undocumented migrants. (429) These
comments suggest that Japanese law enforcement authorities continue to
target the victims of trafficking, rather than the traffickers themselves.
They also disregard the forms of coercion commonly employed by traffickers
and employers of trafficked women, such as debt bondage and threats of
injury to women and their families. When Human Rights Watch met with a
panel of Japanese government officials, including representatives from
the National Police Agency, the Immigration Bureau of the Ministry of Justice,
and the Criminal Affairs Bureau of the Ministry of Justice, in April 1999,
we asked whether there had been any attempt to train police to identify
trafficking victims and the abuses they may have suffered. The only person
to respond, Police Inspector Akio Koshikawa, answered by explaining that
the police were cooperating with the Thai Embassy, NGOs, and others to
arrest traffickers. (430)
Existing legislation that could be used to punish trafficking and debt bondageThere are several laws already on the books in Japan that could be used to punish persons who traffic in women, such as the penal code and Japanese "special" laws regarding prostitution, the entertainment industry, labor standards, and immigration. These laws include many provisions that could address the slavery-like practices involved in the recruitment and employment of women from Thailand and elsewhere and that could provide compensation to victims. (431)Penal CodeThe physical confinement and violent threats that brokers and employers use to control indebted women could be prosecuted under articles 220 and 222 of the Penal Code (Law No. 45). Article 220 proscribes restrictions on freedom of movement: "A person, who illegally arrests or confines another, shall be punished with penal servitude for not less than three months nor more than five years." (432) Article 222 prescribes penalties of up to two years' imprisonment or a five hundred yen fine for anyone who threatens to injure the "life, person, liberty, reputation, or property" of a person or his/her relative. The penalty is steeper, up to three years in jail, if the intimidation causes the victim to perform an act which he/she is not bound to perform. (433)Articles 225 and 227 of the Penal Code forbid kidnapping "by force or allurement for the purpose of profit, obscenity or marriage" and "receiv[ing] a person having been kidnapped or sold" for the purpose of profit or obscenity. Maximum penalties are ten years and seven years, respectively. Brokers in Japan who "receive" women from their agents and/or escorts, hold them by force or threat of force, and then deliver them to snack bar employers for a profit without giving the women the option of selecting or refusing their placement, violate both of these provisions. Employers who "procure" women without their consent also violate the anti-kidnapping provision. Recognizing the additionally aggravating
consequences when victims are transported across international borders,
Japan also has legislation in place that explicitly targets the kidnaping,
buying, and selling of persons for the purpose of transporting them out
of Japan. (434)
Strikingly, however, the Japanese Diet
has not passed legislation to cover cases in which persons are transported into
Japan, as some Japanese opponents of this trade in people have advocated.
Human Rights Watch would support the introduction of such legislation,
which should explicitly target those involved in the transport, sale, or
purchase of persons for the purpose of placing them into debt bondage or
forced labor in a country not their own (whether or not "kidnapping" in
the country of origin can be proven).
There are other more general penal code
provisions that could be applied against traffickers. The physical abuse
of women by brokers, employers, employers' associates, and clients is punishable
under Japan's assault laws, which prescribe penalties for inflicting injury
and encouraging the infliction of injury. (435)
Prison sentences are also prescribed for acts of sexual assault and rape.
Using violence or threats to commit an indecent act is punishable by a
minimum of six months and a maximum of seven years' imprisonment, and the
offense of rape, involving violence or threat, is punishable by two to
fifteen years of imprisonment. (436) Further,
the confiscation of women's passports, wages, tips, and other belongings
could be prosecuted under provisions against theft.
(437)
The maximum penalties for these offenses
range from two to ten years' imprisonment and/or 50,000 to 3 million yen
in fines. (439) Punishments for the use
of force to compel women to engage in prostitution are relatively mild.
A maximum penalty of three years' imprisonment or a 100,000 yen fine is
provided for "any person who threatens or uses violence towards a person
and makes her prostitute." (440) The same
penalties are prescribed for compelling someone to engage in prostitution
by deception, embarrassment, or taking advantage of kinship ties.
(441) These penalties are substantially less than the up to ten
years' imprisonment prescribed for forced labor under Japanese labor laws,
which will be discussed in more detail below. (442)
In addition to the Prostitution Prevention
Law, a new law prohibiting child prostitution and pornography was passed
in 1999. The Legislation on Punishment for Child Prostitution and Child
Pornography covers sexual intercourse and/or similar acts performed by
adults with any person under the age of eighteen by offering or promising
compensation to him/her. It includes penalties for clients as well as for
third parties involved in facilitating child prostitution. It is also extraterritorial
in scope, so that it can be applied to Japanese perpetrators whether they
have committed their crimes in Japan or abroad.
Entertainment Businesses Law
The Law on Control and Improvement of
Amusement Businesses (Law No. 122) (hereinafter, the Entertainment Businesses
Law) regulates the sale of sexual services that do not constitute "prostitution"
under the Prostitution Prevention Law. That is, the sale of any sexual
acts excepting vaginal sexual intercourse, is not illegal as long as it
is done in accordance with the regulations of the Entertainment Businesses
Law. This act specifies licensing, zoning, and other types of regulations
for a variety of entertainment venues. Under the law, entertainment businesses
are divided into two main categories, entertainment businesses and sex
entertainment businesses, each of which has two sub-categories. Entertainment
businesses include restaurants that provide non-sexual entertainment, such
as cabarets and dance halls, as well as other amusement businesses, such
as mah-jong clubs and pinball parlors. Sex entertainment businesses include
"store form" businesses, in which sexual entertainment is provided on the
premises, such as strip clubs, sex shops, "soap lands," and private video
rooms; and "non-store form" businesses, which arrange for sexual services
to be conducted elsewhere, such as telephone escort services and mail order
adult video services; and transmittable visual sex entertainment businesses
-- internet pornography.
In principle, "dating" snack bars, in
which customers pay to take women out of the bar for sexual services, are
subject to strict reporting requirements under the law as non-store form
sex entertainment businesses. Such businesses are also prohibited from
employing people under the age of eighteen or from having clients under
the age of eighteen, and are subject to the new provisions against excessively
high debts described above. (443) These
provisions could be used to penalize snack bar owners and managers, although
the maximum penalties are light -- typically a fine and/or a prison term
of no more than six months.
Japanese labor laws, and particularly
the Labor Standards Law (LSL) and the Employment Security Law (ESL), establish
minimum acceptable labor standards and provide for a range of employment
protections against abuses by employers and job brokers. These laws make
no distinction between workers on the basis of immigration status. Under
the LSL, employers who "force workers to work against their will by means
of violence, intimidation, imprisonment, or any other unfair restraint
on the mental or physical freedom of the workers" are liable for penalties
of one to ten years' imprisonment or fifty thousand to one million yen.
(444) Wages must be paid "at least once a month at a definite
date," "in cash and in full directly to the workers,"
(445) and all forms of indebted labor are prohibited, whether
or not the practice rises to the level of debt bondage.
(446) The law requires employers to clarify working conditions,
including wages, working hours, and other conditions, and it sets minimum
requirements for these conditions. The LSL also establishes minimum standards
for dormitory living, not only requiring that employers provide adequate
facilities, but also prohibiting them from "infring[ing] on the freedom
of the personal lives of workers." Finally, the Labor Standards Law provides
detailed requirements for medical compensation in cases of work-related
illnesses and injuries, prohibits dismissal due to injury, and outlines
procedures for complaining about employer response to illnesses and injuries.
(447)
Japanese labor laws also contain numerous
provisions that could be used against those who place women into forced
labor conditions. Until 1999, the ESL forbade fee-charging employment placement
projects in nearly all industries, and while recent revisions have loosened
this restriction, a permit from the Minister of Labor is still required.
(448) Furthermore, the ESL prescribes steep punishments for coercive
or otherwise egregious types of illegal job placement activities.
(449) The Workers Dispatching Law, which regulates businesses
involved in the employment placement of temporary workers, provides similar
penalties for "a person who has dispatched a worker with an intention of
having workers do work injurious to public health or public morals."
(450)
Japanese labor laws are enforced by a
network of labor offices. Primary responsibility rests with the central
government's Ministry of Labor. Its Labor Standards Bureau and Employment
Security Bureau have local offices throughout the country tasked with addressing
violations of the Labor Standards Law and Employment Security Law, respectively.
Tokyo and several prefectures, such as Kanagawa, Osaka, and Nagano, also
have local government labor offices. A local government labor official
in Tokyo told Human Rights Watch that only the Tokyo and Kanagawa labor
offices are empowered to handle migrant workers' cases.
(451) Labor offices generally negotiate settlements in disputes
between employers and employees without recourse to the courts. However,
the Labor Standards Inspection Offices also have the authority to send
cases directly to the public prosecutor, while Employment Security Offices
and local government labor offices can send difficult cases to the police.
(452)
Attorney Tadanori Onitsuka, who has spent
many years working on behalf of immigration detainees, asserted that foreign
women are essentially excluded from legal protection due to their undocumented
immigration status:
Investigations are initiated when a victim
complains. And in most cases, when [undocumented migrant] women try to
appeal to police, the police say you've broken the law and must go home.
So when the women try to complain about their situation to the police,
the police don't take them seriously, they just focus on the women's violation
of the immigration law. It's arbitrary and up to the individual police
officer. If that officer wants to investigate, they will. Otherwise, if
NGOs, lawyers, and other advocates push a case then the police will have
to investigate. But the key point is that they should always act, and they
don't. (455)
And, in Onitsuka's experience, immigration
officials are also generally uninterested in addressing abuses suffered
by "illegal aliens." "The subject of immigration is the foreigners -- the
purpose is to interview the foreigners to find a reason to deport them.
. . . Even if the immigration authorities know the employer's name and
address they won't bring this information to the police, because that's
not their objective." (456)
In their meetings with Human Rights Watch,
Japanese lawyers, migrants' rights advocates, women's shelter staff, and
government officials all supported the view that neither police nor immigration
officials are interested in investigating or prosecuting those responsible
for the abuses suffered by undocumented migrant women. In one meeting with
a panel of officials from the National Police Agency, the Criminal Affairs
Bureau, and the Immigration Bureau of Japan, Human Rights Watch was given
a list of legal provisions that could be used to punish the human rights
abuses committed by the traffickers and employers of women from Thailand.
This list included the prohibitions in the Labor Standards Law against
forced labor and indebted labor; the prohibitions in the Employment Security
Act and the Workers' Dispatching Law against coercive job placement and
placement into work injurious to the public health or morals; the provisions
regarding kidnapping and receiving a person who has been kidnapped in the
Penal Code; the Immigration Control Act's provision against employing illegal
aliens; and a number of Prostitution Prevention Law provisions prohibiting
involvement in the business of prostitution, including specific prohibitions
against using violence or threat of violence to force someone to prostitute.
However, with the exception of the immigration law, the officials failed
to provide specific information about their implementation of these provisions.
Immigration officer Makiyoshi Uehara said
that this was the responsibility of police: "We don't have the power to
do anything about [the traffickers]. So we give the information to the
police and sometimes work together to crack down." Police Inspector Koshikawa
provided statistics for arrests under Article 73-2 of the Immigration Control
Act, prohibiting the employment of illegal aliens,
(457) but he did not know whether any of those arrested also
had been charged with non-immigration criminal offenses.
(458) He explained candidly, "If a foreign woman asks the koban
[police box] for help, we first see if she is legal or illegal. If
she is legal then we fight against the broker. If she is illegal then we
have to send her to immigration. But at the Immigration Detention Center,
they will investigate what kinds of violence she has suffered."
(459) However, the task of immigration officials, in the words
of immigration officer Uehara, "is deporting the women who are staying
here illegally," (460) and the evidence
suggests that they are largely unconcerned with investigating abuses suffered
by the people they deport. Even when immigration officials actually locate
abusive employers in order to claim money to cover a woman's deportation
expenses, interviews Human Rights Watch carried out with trafficking victims,
local advocates, and Japanese government officials indicate that immigration
officials make no effort to hold these employers accountable for the crimes
they have committed against the women -- or to turn relevant information
over to the police for investigation. According to one local government
labor official in Tokyo, who Human Rights Watch met alone, "once a year
or so, high level officials from the Ministry of Labor and the Immigration
Bureau have a meeting to exchange information about the numbers of cases
and maybe talk about very serious cases. But these are only high-ranking
officials, not case workers, so they do not discuss details."
(461)
During its meeting with Japanese law enforcement
officials, Human Rights Watch asked why it had not heard of any cases in
which the prohibitions against coercive job placement contained in the
Employment Security Law had been applied against brokers who traffic in
foreign women. In response, attorney Yutaka Matsumoto of the Ministry of
Justice's Criminal Affairs Bureau said that the penalties under this law
were quite severe, and he could not explain why the law was used so rarely.
(462) A local government labor official told Human Rights Watch
that the job placement regulations in the Employment Security Law are poorly
understood, even by officials in the Employment Security Offices,
(463) and thus rarely enforced. The official went on to explain
that, "when police or labor inspectors send a case to the public prosecutor,
they must specify which law should be applied and what the evidence is.
The forms are very complicated, so they must really understand a law in
order to use it. Therefore, they will usually just use a law they understand
better." (464)
For migrant women who endure forced labor
and other forms of exploitation in the Japanese sex industry, officials'
indifference to the violations suffered by undocumented migrants is compounded
by their reluctance to enforce provisions against abusive labor practices
in that industry. Attorney Yoko Hayashi told Human Rights Watch that in
her experience, it had been impossible to get police to file charges of
forced prostitution under the Prostitution Prevention Law:
To prosecute forced prostitution you must
first prove prostitution, and to do this you are required to produce the
specific names of the customers (police will ask for business cards) --
so when I asked the police why they didn't arrest employers for forced
prostitution involving foreigners, they explained that it was because the
women can't recognize their customers' names. To prove that forced prostitution
has taken place, you must prove that the woman actually took clients and
so she will have to provide clients' names. Then the police will ask the
clients to come in and sign a statement admitting to buying sex--without
the name there will be no investigation by police.
(465)
A staff member at MsLA women's shelter
in Kanagawa prefecture also alleged that police only detain suspects if
they have several male witnesses; the word of a prostitute alone is not
considered enough. (466) Yayori Matsui,
Director of the Asia-Japan Women's Resource Center, said she was given
a more cynical explanation when she asked a police officer why nothing
is done about the forced prostitution of foreign women: "If we make a big
effort to track guns or drugs, the media will report it and we will get
lots of credit. But prostitution cases take so much time and effort to
investigate, and then it is still not considered news and the media won't
appreciate our efforts." (467) Attorney
Yukiko Oshima asserted that in some cases, at least, police inaction is
due to ties with snack bar owners. She pointed to one case in which a woman
had run away from a snack bar in Sawara City: "A woman ran away to HELP.
It turned out that the police were close to the owners of the snack bar
and often used the bar. HELP called the police station [in Sawara]. The
police didn't do anything. Then HELP found out that there was a close relationship.
There are many cases like this." (468)
Advocates who had tried to facilitate
the investigation and prosecution of abuses suffered by trafficked women
recounted numerous examples of the frustration they met at the hands of
Japanese authorities. In 1994, Human Rights Watch met with Kazuo Tanaka,
(469) a Japanese man who has assisted many women in their efforts
to escape from debt bondage and abusive employers. He told Human Rights
Watch of his persistent frustration at trying to obtain the cooperation
of the police. Tanaka has collaborated with MsLA and other Japanese NGOs
to rescue foreign women and refer them to shelters and embassies for assistance.
In some instances he has also tried to enlist the help of the police. In
1991, for example, when the three Thai women in the "Shimodate Incident,"
described above, were arrested for murdering their mama, Tanaka quickly
formed the "Support Group for the Three Thais in the Shimodate Case" and
recruited a lawyer, Attorney Chinami Kajo, to defend them.
(470) Two years later, while the women's murder trial dragged
on, Tanaka tried to file charges of kidnapping and pimping against the
snack bar manager, recruiter, and broker involved in forcing these women
to work as sex workers. Tanaka recalled,
In August 1993, I went to the Ibaraki
prefectural police department to file charges against the management of
the snack where the women worked, their recruiter, and the broker for kidnapping
and pimping. The prefectural police responded by saying that they did not
have enough people and therefore could not conduct an investigation. I
was told to go to the local police. I then went to the Shimodate police
station to file the charges and they responded saying, "there is not enough
evidence to prove prostitution was going on. Bring the names of thirty
people who have been customers." (471)
The police refused to conduct even a preliminary
investigation into these charges, despite the shocking descriptions of
coercion and abuse related in the women's police statements and court testimony
during the murder investigation and trial. (472)
A year later, Tanaka told us that the club was still operating under a
new name. (473)
In another case, police only responded
reluctantly to Tanaka's appeals for assistance in rescuing nine badly beaten
Thai women, but they refused to conduct any investigation of their attackers.
Tanaka had met six of the women in June 1993, when they were beaten by
Yakuza members after a failed escape attempt. At the time they had been
too afraid to run away, but they asked Tanaka for his phone number in case
they changed their minds. In August 1993, he received a call:
I took two other men with me to the snack.
As soon as I sat down, a woman sat next to me and immediately said that
she was afraid and showed me wounds around her neck. Because my team had
only three people, we could only take three women out. We decided to take
the three with the worst wounds and then come back to get the others. We
got the women out of the snack at around 12 a.m. and went to the police
station. Initially, the women didn't want to go to the police, but I told
them that I would make sure the police didn't arrest them, and that it
was necessary to go to try to help the other women. When we arrived, only
the police from the Traffic Bureau were there. We were told to come back
the next day to see the Crime Prevention Bureau, which is in charge of
dealing with the Yakuza. They refused to take a report. I returned to the
police station with the three women at 8 a.m. the next morning. The Crime
Prevention Bureau recorded the condition of the injuries. They located
the snack bar on a map and confirmed the names of the managers. I asked
the police not to arrest any of the women and to arrest and punish the
management for assault and organized prostitution. But the police only
agreed to the former. They said that if the management was indicted, the
women would have to be witnesses, and the only way the women could stay
[in Japan] is if they were arrested. Forty policemen and I went to the
snack in four buses. We circled the snack, but because the police didn't
have an arrest warrant, they couldn't go in. I went inside with my friends
and got three women. I found out that three others were at a different
location and also got them. The police said that the condition of the nine
women was not enough evidence for a trial. (474)
According to Tanaka, "when the police
'investigate' a snack, they telephone the snack and ask for the boss. If
they get an answer that the boss isn't there, that's where the investigation
ends." He concluded, "There are police who move and police who don't move.
The ones who move, move only halfway." (475)
Tanaka's experiences in Ibaraki prefecture
were echoed by advocates in other parts of Japan. In 1999, Human Rights
Watch met with the director of a women's shelter in Tokyo who has come
into contact with numerous women escaping from debt bondage, domestic violence,
and other abusive situations. She pointed to many cases in which she had
reported incidents to the police or sought their assistance, but had received,
at best, only a reluctant response. For example, she had sought police
intervention when an increasing number of Colombian women had come to the
shelter in 1998 and 1999, escaping from forced sex work, but had faced
stiff resistance:
When Colombian women come here, they always
name the same boss. So we go to the police and tell them to arrest him,
and they say "yes, yes." But then the next woman comes and says her boss
is the same man, so we go back to the police and again they say "yes, yes."
They don't give us any excuses, but they don't do anything either. On February
17 [1999], they finally arrested a main boss in the Colombian trade, but
this was only because a journalist exposed him and there were articles
about him in the Tokyo Shimbun
and Yomiuri Shimbun [two
large Japanese newspapers]. Also, he was only arrested for employing illegal
workers and though he is in jail now, he will probably get only a 300,000
yen [US$2,500] fine. (476)
The police had also received information
about this man from the Board of Directors of the Women's Christian Temperance
Union of Japan (JWCTU), who lodged a complaint after several Colombian
women escaped and identified the same Japanese man as their broker. The
women described being taken to strip clubs and raped in front of customers,
and accused the broker of brutally beating them if they tried to resist
his instructions. Staff at the shelter where the women stayed after their
escape collected testimonies of forced prostitution, trafficking in persons,
and assault and battery, and presented this evidence to the Japanese authorities
with the support of the Colombian Embassy. Nonetheless, when the police
finally arrested the man, they charged him only with employing illegal
aliens. (477)
In another example recounted by the women's
shelter director, the police helped to rescue several Thai girls who had
been brought to Japan through adoption procedures and then forced to sell
sex, but no steps were taken against those responsible:
We just got a girl here who was one of
five fifteen-year-old Thai girls brought from the same village in Thailand
this January [1999] as adopted daughters. Their families in Thailand sold
them to different Japanese "families," who forced them to work as prostitutes.
A customer tipped off the police, and the police helped to get the girls
out and they've returned to Thailand. The one who came to help had been
sold to the Japanese man by her grandmother. There have not been any charges
filed against the agents or families. The police are not investigating
and the girls are too afraid to push for prosecution. The scariest part
is that when the girls were first brought here the adoption process was
not complete, and if it is completed now they could still be brought back.
(478)
The director said that in her experience,
reporting abusive labor conditions to the police can even backfire on the
women involved: "Sometimes the police will go to the club and arrest the
women there for immigration violations. And we say no, we wanted you to
arrest the boss, not the women. And occasionally they will arrest a small
boss and be so proud of themselves." (479)
Human Rights Watch also spoke to Japanese
lawyers who have devoted considerable resources to assisting migrant women
in negotiating the Japanese legal system and seeking compensation for abuses.
Attorney Yukiko Oshima, who has been working on migrant women's cases since
the early 1980s, explained that in most cases she simply negotiates with
bosses herself in her efforts to secure some compensation for women who
have been held in debt bondage: "Cases usually do not go to court because
the boss does not want trouble. Petitions signed by many people can also
help to force snack bar owners to pay. . . . I do not bring many cases
to the attention of the police because they will not do anything." In one
case in which a woman had been assaulted, however, Oshima did go to the
police. "I reported the case to the police and upon investigation, the
police found that the batterer was a Yakuza member. The police questioned
the woman about guns and drugs only. They interrogated her all day and
gave her just one small sweet bun to eat. They were not interested in forced
prostitution at all." (480) Another attorney,
Yoko Yoshida, affirmed that police are reluctant to investigate allegations
of abuse suffered by migrant women and explained that in her experience,
this problem has been compounded by immigration officials' refusal to grant
stays of deportation to migrant women who wish to participate in prosecutions.
(481)
Reports in the Japanese press also indicate
that even when police investigations reveal egregious slavery-like abuses,
including the buying and selling of women and forced sex work, only immigration-related
charges are filed. For example, in January 2000, police in Chiba prefecture
arrested a Japanese man who, according to their reports, recruited a 20-year-old
Thai woman and sold her to a pimp for 2.2 million yen (approximately US$21,000
at January 2000 exchange rates). Police explained that this man lived in
Bangkok, where he and his co-conspirators recruited women for work in Japan,
receiving about 2 million yen for each woman they sent. These women were
then sold to bars and other establishments in Japan for 4 million yen each.
Despite the nature of these practices, the man was arrested only on charges
of promoting illegal migrant labor in violation of the Immigration Control
and Refugee Recognition Act. (482)
In practice, when foreigners are arrested
solely for violations of the Immigration Control Act, jail terms and fines
are typically waived or suspended, but this relies on officials' discretion.
No effort is made to identify victims of trafficking, who should be exempt
from punitive treatment for immigration violations (though repatriation
may be appropriate). (483) As described
in the preceding chapter, women who are picked up in raids are forced to
remain in immigration detention until they can prepare the documentation
and funds to return home, even when their alleged immigration violations
were a result of the coercive and deceptive actions of their traffickers
and employers. Then, they are deported as illegal aliens with punitive
reentry bans, even when they have escaped from debt bondage and voluntarily
surrendered to authorities. In sum, while trafficking abuses go largely
unpunished, trafficking victims are subjected to punitive procedures that
entirely fail to recognize or address the abuses they have faced.
This injustice is compounded by the anti-immigrant
bias which is evident in both the writing and enforcement of the Immigration
Control Act, with negative implications for all undocumented foreigners
in Japan, including women victims of trafficking and debt bondage. The
law discourages undocumented migrants from seeking assistance from government
agencies or medical facilities by requiring civil servants to report to
the immigration authorities any foreigner they know to be living in Japan
illegally. (484) It facilitates prolonged
and arbitrary detention of undocumented migrants through provisions allowing
immigration officials to detain such persons indefinitely pending deportation.
(485) It criminalizes the failure to carry one's passport at
all times, without providing any penalty for passport confiscation.
(486) And, though the law contains provisions for punishing persons
involved in the transport, job placement, and employment of illegal migrants,
enforcement has focused disproportionately on the arrest, detention and
deportation of undocumented migrants, rather than on those who exploit
them. (487)
In the period just after the 1990 revisions
were enacted, the immigration law was only weakly enforced. With Japan's
economic boom and labor shortage, relatively few foreigners were arrested
and deported. But as the Japanese economy slid into a recession in 1992,
concern about illegal immigration mounted. In early 1993, a Workshop on
Counterplans Against Illegal Workers was established by the National Police
Agency, the Immigration Bureau of the Ministry of Justice, the Ministry
of Labor, and the Management and Coordination Agency.
(488) Immigration officials, in cooperation with the police,
began to enforce laws against illegal migrants more vigorously, and, while
fines and jail terms were still rarely enforced, arrests and deportations
for immigration violations rose dramatically. Deportations nearly doubled
in 1992, rising from 36,275 in 1991 to 66,892 in 1992, and then rose again
to 69,136 in 1993. (489) These figures
include 8,088 Thai nationals deported in 1992, and a record 13,283 Thais
deported in 1993. (490) Since 1993, the
number of deportations, like the number of estimated overstayers, has gradually
decreased. In 1996, 52,550 persons were deported, more than 99.8 percent
of them for violations of the Immigration Control Act.
(491) At the same time, visa application procedures have been
tightened in an effort to screen out applicants deemed likely to overstay
their visas. Since Thai nationals account for a significant percentage
of "overstayers" in Japan, Thai women have been particularly affected by
these efforts. (492)
The government also launched a mass media
campaign criticizing foreigners and conducted high-profile mass arrests
of foreigners in public places like parks. (493)
During these raids, all foreigners who could not produce proper identification
were detained and subjected to long interrogation sessions. Those found
in violation of immigration regulations were sent to detention centers
to begin deportation procedures. (494)
The Ministry of Justice further contributed to the stigmatization of foreigners
by publishing misleading statistics that portrayed migrant workers as increasingly
criminally-inclined, despite the fact that the "crime" in question is typically
not murder or theft, but simply residing illegally in Japan.
(495)
Women working in the entertainment industry,
including women working as hostesses in baishun
snack bars, (496) have been specifically
targeted by immigration crackdown efforts. In 1994, for example, the Immigration
Bureau carried out a crackdown on illegal immigrants in Tokyo, Osaka, and
Nagoya that concentrated on persons involved in prostitution and persons
with forged passports or visas. (497)
The campaign involved large-scale arrests without warrants and interrogations
of foreigners, and included a well-publicized initiative in the Kabuki-cho
district of Shinjuku Ward in Tokyo, an entertainment district in which
a large number of foreign women are employed. This initiative was carried
out under the auspices of the "Environmental Clean-Up Policy Headquarters,"
which had recently been established in the Shinjuku Police Headquarters.
(498) In July of that year alone, these efforts led to the deportation
of 2,686 foreigners, 520 of whom were Thai nationals.
(499) Such crackdown efforts have continued. In May 2000, for
example, immigration authorities carried out two sweeps of a total of twelve
bars and nightclubs in Tokyo's Kabuki-cho district. According to officials,
the first sweep, on May 16, was Japan's largest capture of illegal aliens
in a single search: it resulted in the detention of 149 illegal aliens
working in eight different bars. In all, 177 people who had either entered
Japan illegally or overstayed their visas were taken into custody, and
the majority of those detained were women working as hostesses. Immigration
officials explained that while deportation procedures for the detained
women were already underway, the firms who employed these women were unlikely
to face criminal charges. "Since the intent of the search was to cleanse
the environment of the area, it probably won't come to that (i.e., to charges
against employers)," a Tokyo Regional Immigration Bureau official was quoted
as saying. (500)
Foreign women have also been targeted
in the enforcement of the Prostitution Prevention Law. Since at least the
mid-1990s, most of the approximately one thousand arrests under the PPL
for solicitation each year have been of foreign women. And women from Thailand
have been particularly affected, accounting for approximately half of the
foreign women arrested under the Prostitution Prevention Law each year.
(501) Once convicted of prostitution, women are deported with
virtually no chance of ever being issued a visa to reenter Japan.
(502)
In August 1999, the Diet adopted further
revisions to the Immigration Control Act at the urging of the Immigration
Bureau. These have worrisome implications for women from Thailand who are
resident in Japan, though it is too early as yet to assess their effect
in practice. The revisions, which took effect on February 18, 2000, establish
"unlawful stay" as a crime and lengthen the ban on reentry after deportation
from one year to five years. (503) As
explained above, the crime of "unlawful stay" essentially eliminates the
three-year statute of limitations on the crime of illegal entry, making
all undocumented migrants in Japan permanently liable for imprisonment
and fines. Migrants and their advocates fear that the decision to enact
this new provision signals the government's intention to seek jail terms
and fines for immigration offenses more frequently; currently, such penalties
are typically waived or suspended.
The extended ban on reentry means that
a person who is deported from Japan for any reason will have to wait at
least five years before even applying for a visa to reenter the country.
Our research indicated that among women from Thailand, the reentry ban
primarily affected those who wished to settle legally in Japan with Japanese
husbands. These women often surrendered to immigration authorities, were
deported to Thailand, and then applied for a legal visa to reenter Japan
after one year, with a letter from their prospective husband. A five year
reentry ban could therefore result in longer separations of families (which
often include children).
These revisions prompted immediate criticism
from migrant support groups in Japan when they were proposed by the Ministry
of Justice in late 1998. The National Network in Solidarity with Migrant
Workers/Japan (NNSMW) issued a strong statement alleging that the revisions
infringed on "the right of families to remain together by extending the
waiting period for reentry following forcible repatriation," and disregarded
the "acquired rights of residence" which migrants accrue through living
normal, productive, and law-abiding lives in Japan.
(504) Migrants' advocates also pointed out that these revisions
demonstrated an increasing intolerance towards undocumented migrants. Toru
Takahashi, a member of the Immigration Review Task Force of Japan, noted
that lengthening the ban on reentry after deportation "doesn't make sense,
because even now it is up to the Ministry of Justice to decide whether
someone can reenter after that one year, and in reality it is usually very
difficult and takes much longer than a year anyway."
(505)
On the other hand, at the time that this
report was being prepared in early 2000, there were also some indications
that the Ministry of Justice's attitude towards undocumented immigrants
was softening. In February 2000, for example, four Iranian families --
a total of sixteen people -- who had overstayed their visas were granted
special permission to reside in Japan. Their petitions for residency had
been submitted to the ministry with the support of the Asian People's Friendship
Society, a Tokyo-based NGO that was established in 1989 to provide assistance
to foreigners on a wide range of issues, including labor rights and marriage.
The Ministry of Justice's decision reportedly took into account the fact
that children in these families had grown up in Japan and would have difficultly
adjusting to life in Iran. (506) Taking
such a consideration into account was a welcome departure from usual practice.
Human Rights Watch hopes that the ministry will work towards the systematic
incorporation of concerns regarding foreigners' welfare and wellbeing in
the design and implementation of immigration policy in the future.
Lack of labor rights protections for
undocumented immigrants The protections established under the Labor
Standards Law (LSL) apply regardless of workers' immigration status.
(507) The LSL makes no distinction on the basis of immigration
status and official orders -- or tsutatsu
(508) -- issued by the Labor
Standards Bureau to its staff in 1988 and 1990 explicitly instructed officials
to deal strictly with violations of the labor standards laws even in cases
involving "illegal" foreign workers. But these same orders also instructed
officials to report illegal workers to immigration authorities, a requirement
that must obviously discourage undocumented migrants from seeking their
assistance. (509) In 1991, the Compensation
Division of the Labor Standards Bureau issued a tsutatsu instructing its
staff not to inform the immigration authorities when illegals ask for assistance
before the worker receives compensation, although it did not say what should
be done after any such compensation had been obtained.
(510) Then in 1993, the Labor Minister announced that labor officials
should give higher priority to reducing labor violations than to reporting
immigration violations. This position was later confirmed by the Minister
of Justice, who was asked by the Japanese Diet to comment on the potentially
conflicting duties arising out of the immigration reporting requirement.
The Minister issued a general statement providing that, if the reporting
requirement might interfere with a government official's primary job, the
official may prioritize his or her primary job. This was an important step
forward with implications for a variety of government officials, including
those in the Ministry of Labor and the Ministry of Health, apparently allowing
them to ignore the immigration reporting requirement in certain circumstances
without fear of recrimination.
Lack of labor
rights protections in the sex industry
The labor rights of trafficked women
in the sex industry are also unclear because of the nature of the work.
Protections in the Labor Standards Law are limited to employees of specified
industries, namely "hotels, restaurants, snack bars, allied trades and
recreation hall enterprises." (511) Although
this would appear to cover hostesses in snack bars, the law was written
before such businesses were defined and categorized by the Entertainment
Businesses Law, and the meaning of "snack bar" for the purposes of the
law is not clear. (512) In addition, the
LSL applies only when a worker "is employed in the abovementioned enterprises
or offices . . . and receives wages therefrom."
(513) Snack bar owners and managers often describe hostesses
as "freelance" workers, rather than "employees" of the snack bar, thus
circumventing the responsibilities that go with being an "employer" under
the law even though, in practice, they maintain high levels of control
over the terms and conditions of the women's work on a consistent basis.
In addition, the very illegality of
businesses of "prostitution" makes it unclear whether they fall within
the scope of any labor laws. The law provides penalties for women engaged
in public solicitation, and while there are no penalties provided for the
act of exchanging sexual intercourse for compensation, it is also prohibited
under the law. Moreover, the illegal status of "prostitution" stigmatizes
all women in the industry as persons in need of "guidance" and "resocialization."
(514) It has thus reinforced a climate in which women working
in the sex entertainment industry -- both legally and illegally -- try
to hide their occupation, thus reducing these women's access to employment-related
government benefits, including the services of labor protection offices.
(515) And the Prostitution
Prevention Law does not provide any provisions for wage or other compensation
when prostitutes' labor rights are violated. As noted above, even the punishments
for coercive labor practices under the PPL are substantially less than
those imposed for such practices under LSL.
Trafficked women, like many other foreigners
in Japan, face a variety of problems in obtaining adequate access to health
care. These obstacles include language barriers -- very few medical facilities
offer interpreters -- and a lack of information about available services.
Women held in debt bondage face additional problems stemming from their
lack of wages and the strict control that employers exercise over their
freedom of movement. They must rely on their mamas to bring them to the
doctor, provide them with funds to pay for their visit and any necessary
medication, and accurately share the doctor's assessment, while respecting
their confidentiality.
Rather than assist women in overcoming
these obstacles, the Japanese government has exacerbated these problems
with health care policies that discriminate against trafficked women on
the basis of their immigration status. Japan
has taken significant steps over the last several decades to ensure the
highest attainable standard of health for its citizens. However, as
a member of the Japanese delegation to the United Nations Human Rights
Committee made clear during the discussion of Japan's Fourth Periodic Report
on compliance with the ICCPR, immigration control considerations have been
given priority over health when it comes to migrant populations:
With
respect to medical assistance for illegal aliens: the national medical
insurance and other medical insurances and medical aid within public assistance,
these would not be applied to illegal foreigners residing in Japan. If
these systems are applied to illegal aliens, there is the potential of
encouraging illegal sojourn or illegal residence in Japan, and we do not
think this is favorable. (517)
These
policies contravene Japan's obligations as a party to the International
Covenant on Economic, Social and Cultural Rights (ICESCR). Under the ICESCR,
Japan is obligated to "recognize the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health" and to
take the steps necessary "for the creation of conditions which would assure
to all medical service and medical attention in the event of sickness."
(518) The covenant expressly forbids discrimination of any kind
in the provision of these rights, including discrimination against non-nationals.
Doctors
and hospitals still have an obligation to accept all persons in need of
emergency medical care, but by deciding that it would no longer reimburse
unpaid bills for foreigners (with the exception of permanent residents),
the government has deterred medical professionals from meeting this obligation
when the patients are foreigners. (525)
In a few prefectures, the effects of this policy have been mitigated by
local government decisions to reimburse hospitals when foreigners fail
to pay their medical bills. (526) But
in other prefectures, local governments have refused to carry such expenses.
Dr. Takashi Sawada, a doctor at the Minatomachi Medical Clinic, which serves
foreign patients, told us that "in Tokyo and Kanagawa prefectures, where
they have this [reimbursement] system, it is much better than in Chiba
and Ibaraki, where they don't and acceptance of uninsured migrants is low."
(527)
Denial
of subsidized treatment for HIV/AIDS
Trafficked
women are also denied access to government subsidies for HIV/AIDS
treatment -- which are available to all Japanese citizens and long-term
legal residents in Japan -- on the basis of their immigration status.
(528) This policy stands
in contravention to the recommendations of the Committee on the Elimination
of All Forms of Discrimination Against Women (CEDAW), which noted that
trafficked women are particularly vulnerable to HIV/AIDS and should be
guaranteed access to HIV/AIDS-related services without discrimination.
In 1999, CEDAW stated that "issues of HIV/AIDS and other sexually transmitted
disease are central to the rights of women and adolescent girls to sexual
health" and, specifically, recommended that all states "should ensure,
without prejudice and discrimination, the right to sexual health information,
education and services for all women and girls, including those who have
been trafficked, even if they are not legally resident in the country."
(529) CEDAW went on to explain:
While biological differences between
women and men may lead to differences in health status, there are societal
factors which are determinative of the health status of women and men which
can vary among women themselves. For that reason, special attention should
be given to the health needs and rights of women belonging to vulnerable
and disadvantaged groups, such as migrant women, refugee and internally
displaced women, the girl child and older women, women in prostitution,
indigenous women and women with physical or mental disabilities.
(530)
The particular vulnerability of female
trafficking victims and other foreign women to HIV/AIDS in Japan was confirmed
by Japan's National AIDS Surveillance Committee. This found that from 1985
through 1997, non-Japanese females accounted for thirty-four percent of
all HIV cases and eight percent of all AIDS cases and non-Japanese males
accounted for fourteen percent of HIV cases and twenty percent of AIDS
cases. While "non-Japanese" may include foreigners whose residency status
qualifies them for coverage under the Welfare for Disabled People Act,
the National AIDS Surveillance Committee notes that "the peak of HIV cases
seen in 1992 was due to non-Japanese females, mainly young women from Southeast
Asia." (531) Given Japanese immigration
policies, it is unlikely that many, if any, of them qualified for state-funded
HIV/AIDS treatment. And given the research conducted by Human Rights Watch
and other organizations, it is very likely that many of these women were
victims of trafficking from Thailand and other countries. The proportion
of non-Japanese among the overall number of HIV/AIDS sufferers is much
higher in areas that receive large numbers of migrant women from Thailand.
One study found, for example, that more than ninety percent of all non-hemophiliac
cases of HIV and AIDS in Nagano and Ibaraki prefectures involved foreign
migrants, with most of those infected coming from Thailand and other Asian
countries, and no less than ninety-nine percent of them illegally overstaying
their visas. (532)
In accordance with CEDAW's recommendations, the government should take
urgent steps to ensure that trafficked women who are infected with HIV/AIDS
are provided with all appropriate medical care and treatement on the same
basis as others.
Even
though medical professionals may, in practice, avoid reporting undocumented
migrants, the fear that they might be reported deters some migrants from
seeking necessary medical care. By retaining the requirement to report
undocumented immigrants in the Immigration Control Act, even if it is not
currently being enforced, the government inevitably exacerbates this concern
among migrants. This was shown in a study of undocumented workers from
the Philippines in the mid-1990's, which found that there were no recorded
incidents of hospitals turning in patients to immigration authorities,
yet "this fear [was] prevalent" among the migrants.
(537) Dr. Irohira Tetsuro of the Saku General Hospital in Nagano
Prefecture told Human Rights Watch that this fear is common among undocumented
women from Thailand, who are reluctant to attend the hospital for treatment
because they fear they might be deported. (538)
Some
private organizations are also offering low cost or free health care to
the foreign community, with guarantees that undocumented foreigners will
not be reported to immigration authorities. For example, in 1991, the Minatomachi
Foreign Migrant Workers' Mutual Aid Scheme for Health (MF-MASH) was created
to offer undocumented migrants access to a health insurance policy providing
premiums and benefits similar to that of the government's National Health
Insurance Scheme. Members, who pay 2000 yen (in 1999, approximately US$17)
per month, then qualify to receive medical care at the Minatomachi Medical
Center in Yokohama city for thirty percent of the full cost of such treatment.
This program has provided subsidized medical care for thousands of foreign
patients. (539)
In
another ground-breaking case, a Thai woman successfully pressed criminal
charges against a snack bar owner for forcing her into sex work and against
a client for sexually assaulting her by inserting a whiskey bottle into
her vagina. She and the other women working at the snack bar had been forced
to work twelve hours a day in addition to providing sexual services to
at least three men every night, but they received only 5,000 yen (US$45)
per client out of the 15,000 to 20,000 yen (US$135 to 180) clients paid
their boss. During a police raid of the snack bar in November 1993, the
owner was arrested by police for violating labor laws concerning wage remuneration,
and a Thai woman worker was arrested for immigration violations. The Japanese
NGO OASIS quickly came to her assistance and convinced her to press charges
against the owner of the bar and against the client who had assaulted her.
Human Rights Watch was unable to find out the nature of the charges for
which the owner and client were prosecuted, but we did learn that both
defendants were convicted. In December 1993, the snack bar owner was ordered
to pay compensation of 850,000 yen (US$7,700), and the client was ordered
to pay another 700,000 yen (US$6,300); neither defendant was imprisoned.
Unfortunately, OASIS reported that the Thai woman did not collect any of
the money that was awarded to her; she returned to Thailand before the
case was completed and as of January 1994, OASIS was unable to find her.
(544)
There
have been a few other cases as well in which Japanese activists have realized
limited success in pursuing legal claims for trafficked women. An OASIS
staff member told Human Rights Watch about a case in which a snack bar
owner was actually sentenced to jail time after a Thai woman who had been
working in debt bondage for two years pressed charges under Japan's labor
laws and the Prostitution Prevention Law: "In October 1992, the police
raided a snack bar and arrested seven women as illegal aliens. OASIS encouraged
each woman to press charges, but only one, Keak, agreed. So, Keak signed
the papers and gave permission to the OASIS lawyer to press charges against
the owner and broker. The lawyer fought for 150 bai [US$12,000] and won
95 bai [US$7500]. The broker had to pay 65 bai [US$5100] and the owner
30 bai [US$2400]. In addition, the owner was jailed for two years."
(545) In another case that year, a support group was formed on
behalf of five Thai women charged with murdering their Singaporean mama-san
in Mobara city, Chiba prefecture in 1992. The women explained that they
had been held against their will, watched twenty-four hours a day by video
camera, and forced to perform sexual services for customers to repay debts
of 3.8 million yen (US$30,000) each. So the support group filed charges
against the mama-san's partner for illegal confinement under the Penal
Code and for violations of the Prostitution Prevention Law. The man was
convicted, but received only a 25,000 yen fine.
(546)
These
cases provide important precedents for future efforts to obtain justice
for trafficking and related abuses. However, Human Rights Watch found that
the limited success these women enjoyed was possible only with the vigorous
assistance of Japanese advocates, who encouraged the women to press charges,
helped them throughout their trials, and publicized their cases to gain
public support. These advocates received no payment for their efforts,
faced reluctant and biased civil servants at every stage of the process,
had to pursue the cases over long periods of time, and in some cases, had
to represent victims in absentia, as they were deported while the trial
was still underway. In sum, the extraordinary circumstances of these cases
-- and the enormous amount of effort required on the part of advocates
-- provide only further evidence of the Japanese government's indifference
to the human rights violations suffered by trafficked women.
424. Transcript of the 1714th meeting of the
Committee on Human Rights to consider the Fourth Periodic Report of Japan,
October 28, 1998.
425. Entertainment Businesses Law, Article 18-2,
paragraph 1 provides that a person who runs an entertainment business shall
not:"(1) charge an unreasonably high debt . . . to the employees engaged
in the service of entertaining the customers (hereinafter called the "employees
entertaining the customers") in consideration of their ability to repay
on condition that the outstanding debt becomes due and payable immediately
upon their ceasing to be the employees entertaining the customers. (2)
hold in custody or to have a third party hold in custody the passports
. . . (or other documents designated by a government order as the documents
which employers would normally request the job seekers to display for their
identification) of the employees entertaining the customers who have been
charged with an unreasonably high debt in consideration of their ability
to repay." Article 31-3 specifies that this article should apply to persons
who run "non-store type sex entertainment businesses." See discussion of
the Entertainment Businesses Law below for a definition of this term. (Note
that the English translation of the amended Entertainment Businesses Law
used here and below was provided to Human Rights Watch by Fumie Saito,
Legislative Aide to Senator Mizuho Fukushima, Member of the House of Councilors,
Japan.)
426. Fumie Saito, Legislative Aide to Senator
Mizuho Fukushima, Member of the House of Councilors, Japan, e-mail to Human
Rights Watch, March 16, 2000.
427. Sanitsuda Ekachai, "Conference seeks help
for Thai victims: These women are not criminals-envoy," 428. These efforts will be described further
in the "International Response" chapter.
429. According to Kanemoto, 1,360 "stowaways"
were arrested for illegal entry in 1997, 1,023 in 1998, and 770 in 1999.
He also explained that in 1998, 1,522 foreign women were arrested for violations
of the Prostitution Prevention Law, of the laws against indecency, or of
the Entertainment Businesses Law. Broken down by nationality, the foreign
women who were arrested on such charges included 497 Koreans, 342 Thais,
277 Filipinas, and 122 Colombians. The only other arrest statistic he cited
was the number of persons arrested for child prostitution or child pornography
in the two months since Japan's new legislation against these practices
came into force in November 1999, but it was not clear whether any foreign
victims were involved in these cases. (Presentation at the Asia-Pacific
Symposium on Trafficking in Persons, Tokyo, Japan, January 20, 2000.)
430. Human Rights Watch interview, Tokyo, Japan,
April 15, 1999.
431. Also note that victims can get compensation
in both civil and criminal cases in Japan. While victims must initiate
a civil case to actually sue for damages, judges and lawyers in 432. "The Penal Code of Japan," EHS Law Bulletin
Series, EHS Vol. II (Tokyo: Eibun-Horeisha, Inc., 1992). All excerpts from
the Penal Code below are also taken from the EHS Law Bulletin Series.
434. Article 226 of the Penal Code states: "A
person, who kidnaps another by force or allurement for the purpose of transporting
the same out of Japan, shall be punished with penal servitude for a limited
period of not less than two years [and not more than fifteen years]. The same shall apply to a person who buys or sells another for the purpose of transporting the same out of Japan, and to a person who transports out of Japan another having been so kidnaped or sold." 435. 0
Articles 204 through 208 of the Penal Code, which were last amended
by Law No. 31, April 17, 1991.
436. According to Article 177, rape carries
a penalty of imprisonment for a limited period of no less than two years,
and Article 12 of penal code provides that "a limited period" shall mean
no less than one month, but less than 15 years. Sexual assault is prohibited
under Article 176.
438. "Prostitution Prevention Law," EHS Law
Bulletin Series, EHS Vol. II (Tokyo: Eibun-Horeisha, Inc., 1991). All excerpts
from the Prostitution Prevention Law below are also taken from the EHS
Law Bulletin Series.
439. Under the Child Prostitution and Pornography
Act, which was adopted by the Japanese Diet in May 1999, clients who engage
in prostitution with girls under age eighteen can be penalized.
440. Article 7(2). This penalty is increased
to a maximum of five years imprisonment or a 200,000 yen fine if the offender
receives or demands compensation from the act of prostitution (Article
8(1)).
441. Article 7(1). This penalty is increased
to a maximum of five years imprisonment or a 200,000 yen fine if the offender
receives or demands compensation from the act of prostitution (Article
8(1)).
447. Labor Standards Law, Articles 19, 75-77;
Enforcement Ordinance.
449. Article 63 of the Act prescribes penalties
of one to ten years imprisonment or a fine of fifty thousand to one million
yen for: "(1) a person who has carried on or engaged in employment placement,
labor recruitment or labor supply by means of violence, intimidation, imprisonment
or other restraint on mental or physical freedom; (2) a person who has
carried on or engaged in employment placement, labor recruitment or labor
supply with an intention of having workers do work injurious to public
health or public morals."
450. Article 58. Violating this provision carries
penalties of one to ten years penal servitude or a 20,000 to 3 million
yen fine.
451. Human Rights Watch interview, Tokyo, Japan,
April 14, 1999.
(1) A person who has had an alien engage in illegal work in relation to business activities; (2) A person who has placed an alien under his control for the purpose of having the alien engage in illegal work; (3) A person who has repeatedly mediated either the procurement of an alien to engage in illegal work or the act specified in the preceding item." Penalties on the illegal migrants themselves
were maintained and somewhat increased: the maximum period of imprisonment
remained three years, but maximum fines were increased from 100,000 yen
to 300,000 yen (Article 70).In
1998, additional revisions added stiff penalties -- up to ten years imprisonment
and a ten million yen fine -- for those involved in transporting "collective
stowaways," defined as "aliens in groups who have intention to land onto
Japan without obtaining landing permission . . . or with obtaining landing
permission . . . by a false representation or other illegal measures" (Articles
74 through 74-8). These provisions were added largely in response to the
increasing incidence of smuggling in migrants by boat from China. (Here
and below, excerpts taken from the English translation of the law on the
Japanese Ministry of Justice website. Available: http://www.moj.go.jp/ENGLISH/IB/ib-19.htm.
July 2000.)
454. Human Rights Watch interview, Tokyo, Japan,
April 15, 1999.
455. Human Rights Watch interview, Tokyo, Japan,
April 17, 1999.
456. Human Rights Watch interview, Tokyo, Japan,
April 17, 1999.
1994 47 693 1995 326 422 1996 356 452 1997 488 627 1998 499 556 (Human Rights Watch interview with
Police Inspector Akio Koshikawa, Consumer and Environmental Protection
Division, Community Safety Bureau, National Police Agency, Tokyo, Japan,
April 15, 1999.)
459. Human Rights Watch interview with a panel
of Japanese government officials, Tokyo, Japan, April 15, 1999.
461. Human Rights Watch interview, Tokyo, Japan,
April 14, 1999.
462. Human Rights Watch interview with Yutaka
Matsumoto, Attorney-at-Law, Public Security Division, Criminal Affairs
Bureau, Ministry of Justice, Tokyo, Japan, April 15, 1999. Immigration attorney Tadanori Onitsuka
explained that since mediating in the employment of illegal aliens is now
prohibited under the Immigration Control Act, this law would be applied
instead. However, though there have been some arrests under this provision,
it has not been applied on a consistent basis either. ( Human Rights Watch
interview, Tokyo, Japan, April 17, 1999.) Furthermore, the immigration
law does not target the coercive tactics often involved in the job placement,
or "sale," of migrant women and provides for maximum prison terms of only
three years. This penalty is stiffer than that prescribed under the Employment
Security Act for non-coercive job placement activities (which carries a
maximum penalty of one year of imprisonment or a 200,000 yen fine), but
significantly lighter than that prescribed for coercive employment placement
(maximum of ten years of imprisonment or a one million yen fine).
463. The Employment Security Law also covers
a range of other issues, such as unemployment insurance and advance warnings
for lay-offs.
464. Human Rights Watch interview, Tokyo, Japan,
April 14, 1999.
465. Human Rights Watch interview, Tokyo, Japan,
April 17, 1999.
467. Human Rights Watch interview, Tokyo, Japan,
April 16, 1999.
468. Human Rights Watch interview, Japan, March
17, 1994.
471. Human Rights Watch interview, Japan, April
2, 1994.
472. Furthermore, there was already extensive
evidence that the women worked as prostitutes in the police record from
the murder investigation and trial. Still, the police agreed only to file
his allegations as a "citizen's complaint."
473. Human Rights Watch interview, Japan, April
2, 1994.
476. Human Rights Watch interview, Tokyo, Japan,
April 8, 1999. The name of the shelter and the director have been withheld
at the director's request.
478. Human Rights Watch interview, Tokyo, Japan,
April 8, 1999.
480. Human Rights Watch interview, Tokyo, Japan,
March 17, 1994.
481. Human Rights Watch interview, Tokyo, Japan,
April 17, 1999.
482. "Bangkok resident arrested in recruitment
of Thai women," Kyodo News International, January 24, 2000. In another recent example, the Public Safety Division of the Tokyo Metropolitan Police and the Nogata and Suginama branch officers announced in August 1999 that they had made fourteen arrests in connection with their investigation of foreign prostitution rings in the Kabuki-cho area of Tokyo. According to police, the suspects included three Thai brokers who were involved in sending women from Thailand to Japan, where they were placed under the brokers' supervision and forced to engage in sex work. During their investigation, the police found two women from northern Thailand who had been locked up in an apartment in Kabuki-cho and forced to pay off debts of 4.5 million yen (US$38,500) each through sex work. An article in the Asahi Shimbun reported, "The women, the police said, were essentially living in captivity under the control of the three brokers, sharing a room and working at night in the bar." The police charged the brokers with employing illegal aliens, in violation of the Immigration Control Act, and with placing workers into harmful and illegal work, in violation of the Employment Security Act. While the latter charge demonstrates some acknowledgment of the abuses the women faced, no charges of forced labor, forced prostitution, intimidation, or illegal confinement were filed. (See "Prostitution ring broken in Shinjuku," Asahi Shimbun (English edition), August 12, 1999; and "3 Thais arrested for arranging prostitution in Japan," Japan Policy & Politics, August 12, 1999. For a more complete description of the charges filed against the brokers, see "Metropolitan Police Arrest 14 People Suspected of Trafficking and Prostituting Thai Women," Asahi Shimbun (Japanese edition), August 12, 1999.) For a similar case involving Colombian women, see "The increase in Colombian prostitution," Asahi Shimbun (Japanese edition), June 22, 1999; and "70 held in move to stem prostitution," Asahi Shimbun (English edition), June 17, 1999. See also: "Date club owner arrested in Yokohama," Kanagawa Shimbun (Japanese edition), June 15, 1994; "Prosecution in Yokohama," Kanagawa Shimbun (Japanese edition), November 13, 1993; and "Police Arrest Two Japanese Accused of Trading Women," Yomiuri Shimbun, October 9, 1992. Ironically, while brokers are virtually
never arrested for placing women into abusive and coercive working conditions,
a newspaper report from 1998 indicates that on at least one occasion, Japanese
police have actually arrested a broker on charges of defrauding a snack
bar manager. The "broker," Masashiro Yasuzawa, went to Narita airport with
two Thai women who had been living in Japan illegally for a year and a
half. There he introduced the women to a snack bar manager, telling the
manager that the women had just arrived from Thailand that morning. The
manager paid him 3.8 million yen, and took the women back to his snack
bar. They began working for the manager that night, but when they went
out with customers, they never returned. Instead, they went back to Yasuzawa,
who paid them each 500,000 yen. ("Lied about introducing Thai women --
got 3.8 million yen by fraud," Asahi
Shimbun (Japanese edition), September 23, 1998.
483. While the Immigration Control Act explicitly
excepts persons who qualify as refugees from penalties for the offenses
of illegal entry and overstaying visas, no similar exceptions are made
for victims of trafficking and forced labor.
As will be discussed below, there have
been modifications to this rule in response to concerns from the Ministry
of Labor and the Ministry of Health, and reports indicate that labor official
and medical professionals rarely turn undocumented migrants over to immigration
officials. Still, the fear of being turned in can prevent migrants from
accessing such services, and police commonly report suspected illegal aliens
to immigration.
According to Article 52, if a deportee cannot be deported immediately upon
the issuance of a written deportation order, "an ICO may detain him in
an Immigration Center, detention house, or other places designated by the
Minister of Justice or by a SII commissioned by the Minister of Justice
until such time as deportation becomes possible." There are no checks or
limits on this power.
486. In a highly unusual case in December 1997,
a family of ethnic Japanese Brazilians sued their employer for refusing
to return their passports when they wanted to return to Brazil following
the Great Hanshin Earthquake in 1995. The Kobe District Judge ruled that
it was illegal for employers to refuse to return the passports of migrant
employees and ordered the defendant to pay 380,000 yen in compensation,
in addition to 450,000 yen in unpaid wages, to the plaintiffs. However,
the Judge also decided that it was not illegal for an employer to hold
passports if requested to do so, despite the fact that Japanese immigration
law requires that all foreigners carry their passports at all times. ("Kobe
Court Ruling: Refusing to Return a Passport is Illegal," 489. Ministry of Justice, Japan, "Immigration:
Deportation of Foreign Nationals; Illegal Work, Illegal Entry, Narcotics."
Available: http://www.moj.go.jp/ENGLISH/IB/ib-11.htm. July 2000.
491. Ministry of Justice, Japan, "Immigration:
Deportation of Foreign Nationals; Illegal Work, Illegal Entry, Narcotics."
Available: http://www.moj.go.jp/ENGLISH/IB/ib-11.htm. July 2000. These
were the most recent statistics available on the Japanese Ministry of Justice
website when this report was being prepared.
492. Human Rights Watch interview with Attorney
Tadanori Onitsuka, Tokyo, Japan, April 17, 1999. Note that according to
Japanese Ministry of Justice statistics, in January 1997, fourteen percent
of the 282,986 undocumented migrants in Japan were Thai nationals (Immigration
Bureau, Ministry of Justice, "Change in Number of Illegal Stayers by Countries
of Origin," March 9, 1997).
493. Human Rights Watch interview with Toru
Takahashi, Immigration Review Task Force member, Tokyo, Japan, April 8,
1999.
501. For overall statistics on arrests under
PPL, see Research and Training Institute, Ministry of Justice, Japan, "Summary
of the White Paper on Crime 1997." Available: http://www.moj.go.jp/ENGLISH/RATI/rati-65.htm.
September 1999. For statistics of foreign women arrested under PPL, see Human Rights Watch interview with Police Inspector Akio Koshikawa, Consumer and Environmental Protection Division, Community Safety Bureau, National Police Agency, Tokyo, Japan, April 15, 1999. Inspector Koshikawa provided the following statistics on arrests of foreign women under the Prostitution Prevention Law: totalThai 1995 850 493 (58%) 1996 593 272 (46%) 1997
830 371 (45%)
502. Human Rights Watch interview with Attorney
Tadanori Onitsuka, Tokyo, Japan, April 17, 1999.
503. See Nobuyuki Sato, "Point of View: It's
time for Japan to guarantee foreigners' rights," 504. NNSMW, "Stop! The 1999 Immigration Control
Law Revision," 505. Human Rights Watch interview, Tokyo, Japan,
April 8, 1999.
506. Hiroshi Matsubara, "Standards needed for
granting residence status: rights activist," 507. Article 3 states that "[n]o employer shall
discriminate against or for any worker by reason of nationality, creed
or social status in wages, working hours and other working conditions." In January 1997, Japan's Supreme Court awarded wage compensation to an undocumented migrant worker from Pakistan who was injured while working in Japan. The issue of contention was whether income losses should be estimated based on his income in Japan or on his expected income in Pakistan. Supporting the decision of the Tokyo High Court, the Supreme Court ruled that while estimated losses should not be calculated differently based upon the worker's nationality, "the estimated period of future work in Japan should take into consideration the foreigner's individual situation." The judge said in the ruling that undocumented workers could not work for long in Japan, and therefore decided that his losses should be estimated based on three years of work in Japan (at 170,000 yen per month) and thirty-nine years of work in Pakistan (at 30,000 yen per month). ("Illegal Foreign Worker Awarded Three Year's of Income Lost Because of On-the-Job Accident,"Japan Labor Bulletin, vol. 36, no. 4, April 1, 1997. Available:http://www.jil.go.jp/bulletin/year/1997/vol36-04/05.htm. November 1999.) Tsutatsu are bureaucratic orders that are issued by upper level ministry officials and then strictly followed by the ministry's staff at all levels of the government. The Japan Export Information Center at the U.S. Department of Commerce defines "tsutatsu" as "written administrative guidance given by government officials to related parties/organizations/companies" (Japan Export Information Center, Destination Japan: A Business Guide for the 90s (Second Edition), May 1994. Available: http://www.gwjapan.com/ftp/pub/business/destjpn/destjpn2.txt. September 1999.) These
orders are considered interpretations of the law, and are often
given more weight than the law itself, though in many cases they are not
clearly described or disseminated to the public. (See Human Rights Watch
interviews with Toru Takahashi, Immigration Review Task Force member, Tokyo,
Japan, April 8, 1999; and with Atty. Yoko Yoshida, Kyoto, Japan, April
13, 1999.)
0
The Forum on Asian Immigrant Workers, Citizen's
Report on the Human Rights of Foreign Workers in Japan, April 17, 1993,
p. 33.
Compensation
Division Statement no. 7, March 25, 1991. (Akira
Hatade, "Labor Movement Regarding Foreign Workers," in Hiroshi Takana and
Takashi Ebashi [eds.], Rainichi
Gaikokujin Jinken Hakusho [White
paper on human rights for foreigners in Japan] (1997), p. 106).
Article 8(14). If the term "allied trades" in Article 8(14) is interpreted
to include the business of procuring women for the snack bars, then brokers
are within the purview of the law as well.
512. Human Rights Watch interview with a local
government labor official, Tokyo, Japan, April 14, 1999.
513. Article 10. Note that Article 11 defines "wage"
as "the wage, salary, allowance, bonus and every other payment to the worker
from the employer as remuneration of labor under whatever name they may
be called."
514. While no longer common in practice, women
convicted of violating the PPL may be sentenced to "guidance disposition"
in a women's guidance home. Like other correctional institutions, the woman's
guidance home is administered by the Ministry of Justice's Correction Bureau,
but it is designed to give women "protection and guidance as well as medical
treatment necessary for their resocialization." Correction Bureau, Ministry
of Justice, Japan, "The Women's Guidance Home." Available: http://www.moj.go.jp/ENGLISH/CB/cb-02.htm.
September 1999.
516. Note that the effects of this rule may be
mitigated in some shelters where staff practice a "don't ask, don't tell"
policy regarding immigration status.
517. Suginaka, Ministry of Health and Welfare,
1716 meeting of HRC, October 29, 1998
518. Article 12. Ratified by Japan on June 21,
1979.
519. The majority of Japanese citizens, about seventy
million, are covered under the Health Insurance Law, which provides health
insurance to laborers in a position of regular employment at a fixed place
of business. Another forty-two million people are insured under the National
Health Insurance system, which applies by law to all residents of Japan
who have a specific address in a town, city, or village. These policies
include both physical and mental health care needs. (Japan Civil Liberties
Union, "1998 Report Concerning the Present Status of Human Rights in Japan
(Third Counter Report)", October 1998; "The Japanese National Health Insurance
Scheme," 520. Japan Civil Liberties Union, "1998 Report
Concerning the Present Status of Human Rights in Japan (Third Counter Report)." 521. While the laws governing these insurance schemes
make no distinction based on immigration status, the Ministry of Health
and Welfare has issued directives excluding undocumented workers from coverage
under either scheme. ("State must supply health care for illegal aliens,
panel says," Note
that emergency psychiatric care is still available to all persons regardless
of immigration status under the Mental Health and Welfare Act, which provides
free treatment for severe cases in which patients are in danger of harming
themselves or others. (523)
523. Dr. Takashi Sawada, e-mails to Human Rights
Watch, October 9 and 11, 1999.
524. ICESCR, Article 2(1). According to Article
14(e) of the Maastricht Guidelines on Violations of Economic, Social and
Cultural Rights, (Maastricht, January 22-26, 1997): "Violations of economic,
social and cultural rights can occur through the direct action of States
or other entities insufficiently regulated by States. Examples of such
violations include . . . The adoption of any deliberately retrogressive
measure that reduces the extent to which any such right is guaranteed."
525. See Human Rights Watch interview with Nigoon
Jitthai, researcher at the Graduate School of Medicine, Tokyo University,
Tokyo, Japan, April 17, 1999; Hiroshi Hayakawa, "Dr. Haruto takes charge
in Yokosuka Chuo Clinic," 526. In particular, there have been efforts to
employ provisions of a law originally designed to protect domestic (Japanese)
travelers and persons without money or a residence, under which hospitals
are reimbursed for outstanding medical bills by local governments. Since
the Ministry of Health and Welfare's 1990 decision to withhold livelihood
protection from foreigners without permanent residency, this law has been
used in some areas to cover undocumented migrants.
527. Human Rights Watch interview, Tokyo, Japan,
April 7, 1999.
528. Government-subsidized HIV/AIDS treatment is
provided under the Welfare Act for Disabled People, and only citizens and
foreigners with at least a one-year work visa are covered. (Human Rights
Watch interview with Dr. Takashi Sawada, Tokyo, Japan, April 7, 1999.) Rutsuko
Shoji, Director of HELP Asian Women's Shelter, told Human Rights Watch
how Japan's discriminatory policy regarding HIV/AIDS treatment was reducing
one woman's chance of returning to Thailand before she dies. The woman
was a third generation Vietnamese "refugee" who was born and raised in
a refugee camp in Thailand and trafficked into Japan at age sixteen. HELP
and others were trying to persuade the Thai government to allow her to
return to Thailand, but in the meantime, she remained in Japan, where she
was being denied access to medication that could prolong her life.(Human
Rights Watch interview, Tokyo, Japan, April 8, 1999.).
529. Committee on the Elimination of Discrimination
Against Women, "General Recommendation No. 24," 20th session, 1999, paragraph
18.
531. National Institute of Infectious Diseases,
"AIDS/HIV Surveillance in Japan, 1985-1997," 532. Kijo Deura and Takashi Yokota, "Medical Care
and HIV Infection of Foreign Immigrant Workers in Japan," Regional Meeting
on Traffic in Women in Asia and Pacific, February 19-22, 1997, Bangkok,
Thailand.
534. Human Rights Watch interview, Tokyo, Japan,
April 7, 1999.
536. Human Rights Watch interview with Dr. Takashi
Sawada, Tokyo, Japan, April 7, 1999; Human Rights Watch interviews with
Kimiko Ogasawara, Tokyo, Japan, April 19, 1999 and January 21, 2000.
537. Sarah Y. Usuki, "Filipino Migrant Workers
in Japan: Their Behavior on Health Problems," 539. Hiroshi Hayakawa, "Over 3 years in existence:
Foreign workers still need 540. Abigail Haworth and Kyoko Matsuda, "Flesh
and Blood: part two," August 1994.
541. "Record of Testimony," name: Toshihisa Sasaki,
testified at Shimodate Police Station on September 30, 1991 to Police Officer
Sugita.
542. Human Rights Watch interview with Atty. Kazuko
Kawaguchi, Japan, March 9, 1994. Attorney Kawaguchi was one of the six
lawyers representing the women.
543. Shima Kobayashi, "Summary of Due Process Violations
found in the Key Court Cases -- Trafficking of Thai Women to Japan," July
11, 1997. Though as noted in the discussion above, efforts to file criminal
charges against their employers failed. See the previous chapter for more
information about the murder trial.
545. Human Rights Watch and FOWIA interview with
OASIS staff member, Japan, 1995. Note that Human Rights Watch was unable
to find out the exact nature of the charges for which the owner was imprisoned.
U.S. dollar amounts are calculated using the average exchange rate from
1992.
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