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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
  • To the Japanese Government
  • To the Thai Government
  • To the Japanese and Thai Governments
  • To All Governments
  • To Intergovernmental Organizations
United Nations High Commissioner for Refugees (UNHCR)
International Organization For Migration (IOM)
International Labor Organization (ILO)
World Health Organization (WHO)
Human Rights Watch OWED JUSTICE
Thai Women Trafficked into Debt Bondage in Japan

Human Rights Watch
New York Washington London Brussels
Copyright September 2000 by Human Rights Watch.
All rights reserved.
Printed in the Unted States of America.
ISBN 1-56432-252-1
Library of Congress Card Number: 00-107963

XII. RECOMMENDATIONS

To the Japanese Government

1. Actively investigate, prosecute, and punish perpetrators of trafficking in persons and/or servitude, imposing penalties appropriate for punishing the grave nature of the slavery-like abuses involved and for deterring further such abuses. Take measures to ensure that the undocumented immigration status of trafficking victims does not impede investigation or prosecution of labor law violations and other offenses.

(1) Adopt legislative changes necessary to provide appropriate penalties for all acts and attempted acts related to the recruitment, transport, transfer, sale, or purchase of human beings by force, fraud, deceit, or other coercive tactic, for the purpose of placing them into conditions of servitude, in which labor is extracted through physical and/or non-physical means of coercion, including debt bondage, blackmail, fraud, deceit, isolation, threat or use of physical force, and psychological pressure. Such changes could include:

(a) Amending Article 226 of the Penal Code -- which forbids kidnapping, buying, or selling a person for the purpose of transporting the same out of Japan, as well as transporting a person who has been kidnapped or sold out of Japan -- so that it applies to cases in which persons are transported into Japan. In addition, add language prohibiting all transport, sale, or purchase of persons for the purpose of placing them into servitude in a country not their own (whether or not "kidnapping" in the country of origin can be proven).

(b) Amending Article 73-2 of the Immigration Control Act and Article 7 the Prostitution Prevention Law to provide penalties against the use of coercive tactics in job placement and employment that are equal to those provided under the Labor Standards Law and the Employment Security Law for similar practices.

(c) Amending the Labor Standards Law and the Employment Security Law to prohibit -- and penalize -- the confiscation of a person's passport, travel documents, or other identification papers by employers or job brokers. Add penalties to the recently enacted provision of the Entertainment Businesses Law that prohibits the use of high debts to extract labor (Article 18(2)).

(2) Any evidence of trafficking and/or the commission of compulsory labor offenses against migrants that is collected by immigration officials -- including any information provided by detainees during questioning -- should be referred to police and/or labor officers, as appropriate, in order that they can investigate and, where there is adequate evidence, prosecute those responsible. Such information should also be made available to the migrants themselves and their advocates.

(3) Evidence and allegations of official complicity in trafficking or servitude abuses should be thoroughly investigated, and any officials against whom there is adequate evidence prosecuted.

(4) Develop and provide specific training and awareness programs for police, labor officials, immigration officials, prosecutors, and judges regarding the situation of foreign laborers and the abuses they commonly face during their travel to Japan, their job placement, and their employment, particularly when they are undocumented. Train officials to effectively recognize trafficking abuses -- including coercive job placement and debt bondage -- as well as other violations suffered by undocumented migrant workers, to collect evidence of such violations, to file appropriate charges, and to prosecute the perpetrators. This should include aggressive investigation and prosecution of evidence of coercion in the entertainment industry and businesses of prostitution. Such training should be carried out with the active involvement of relevant NGOs.

2. Amend laws, including the immigration law, to exempt victims of trafficking and/or servitude from being prosecuted or otherwise penalized for any crimes or illegal status that have resulted directly from these practices. While repatriation may be appropriate, punitive measures, including detention pending deportation, should be waived.

3. Guarantee victims of trafficking and/or servitude access to redress for abuses they have suffered, facilitating their ability to seek compensation for damages, withheld wages, and restitution.

(1) Facilitate foreigners' access to interpretation services and legal counsel in immigration proceedings as well as civil court proceedings, ensuring that assistance from the Legal Aid Association is available without discrimination based on immigration status. This is particularly important in cases in which there is evidence of trafficking or forced labor.

(2) Instruct labor officials to increase their efforts to protect the labor rights of both Japanese and non-Japanese women working in the entertainment industry. Train officers on the labor rights of women in this industry and launch a public information campaign informing women of these rights. Such a campaign should pay particular attention to reaching foreign women. Labor office investigators should set up special late shifts to facilitate investigation of labor rights violations that occur outside of normal business hours.

(3) Issue temporary residence visas to foreign nationals pending the resolution of any criminal, civil or other legal actions relating to offenses they have suffered. During this time, victims of trafficking should be provided with the right to work and/or other means of support.

4. Protect the safety of victims of trafficking and/or servitude, with measures that include strong witness protection provisions and the opportunity to seek asylum.

(1) In the investigation and prosecution of traffickers, take steps to protect victims or witnesses who cooperate in these proceedings, with measures to ensure their safety, physical and psychological well-being, dignity, privacy, and right to timely repatriation to their country of origin. Measures should be available not to disclose information, or to delay disclosure, where victims' or witnesses' security would be adversely affected, and victims and witnesses should be notified in advance of decisions relating to such disclosure. Witness protection measures should be made available, and methods of taking testimony in advance and/or via communications technology should also be considered. None of these measures should be prejudicial to, or inconsistent with, the rights of the accused to a fair and impartial trial.

(2) In coordination with UNHCR officers, ensure that victims of trafficking and/or servitude have the opportunity to seek asylum.

5. Ensure that victims of trafficking and/or servitude have access to essential government services, including appropriate shelter and medical care.

(1) Amend Article 62 of the Immigration Control Act to explicitly exempt medical professional and labor officials from civil servants' obligation to report suspected illegal immigrants to the immigration office.

(2) Open government women's shelters to undocumented migrant women and provide government funding to privately-run shelters that currently provide assistance to such women.

(3) Ensure that victims of trafficking and/or servitude have access to adequate medical care, including access to government-subsidized HIV/AIDS treatment when appropriate. Measures to facilitate their access to such care could include: amending the Livelihood Protection Law, the Health Insurance Law, the National Health Insurance Law, the Welfare Act for Disabled People, and the Maternal and Child Health Law to explicitly provide that they apply to all persons in Japan, on a non-discriminatory basis; and providing training for medical personnel that encourages them to be sensitive to the physical and mental health needs of foreigners and assists them in effectively communicating with foreigners.

(4) Encourage the establishment of health clinics in all major cities in collaboration with NGOs and provide free, anonymous testing for HIV/AIDS and other STDs. These clinics should be accessible to undocumented migrants without the threat of their being reported for immigration violations.

6. Amend detention and trial procedures in both the criminal justice system and the immigration control system to ensure that the rights of detainees, as established by international human rights guidelines, are upheld. Facilitate independent monitoring of procedures and conditions, and thoroughly and promptly investigate all allegations of misconduct.

(1) Establish an independent body to monitor legal proceedings and detention conditions, and to investigate and address allegations of due process violations and mistreatment of detainees and/or suspects by immigration officials, police, and prison staff.(1)

(2) Fully protect the civil rights of all detainees. This includes ensuring that detainees fully understand the nature of the charges against them, are informed of their right not to incriminate themselves and of their right to an attorney; have access to immediate consular assistance and legal counsel (all persons charged with criminal offenses must have access to legal counsel free of charge if they cannot afford to pay); may meet in private with their attorneys; are tried before a fair and impartial tribunal within a reasonable time; and have a right of appeal to a higher court. They should also have access to adequate translation and interpretation services during all legal proceedings.

(3) Eliminate the "detention in principle" policy for foreigners who are awaiting deportation after being taken into custody by immigration officials; all efforts should be made to release detainees, either to their own residences or to appropriate shelters. In addition, a system of periodic review should be established to assess the need for continued detention when detention is prolonged due to difficulties in securing the funding and/or documentation for a person's deportation.

(4) Ensure that conditions in all detention facilities are in full compliance with the Standard Minimum Rules for the Treatment of Prisoners. Compose and make public detailed standards of treatment, including provisions that: protect detainees' right to communicate through visits and written correspondence with lawyers, family members, and friends; require that women officers are present during all interactions with women detainees; and strictly limit the use of restraint mechanisms and solitary confinement. Thoroughly investigate all allegations of mistreatment of detainees; vigorously prosecute and punish those guilty of such abuse.

7. Ratify relevant international conventions, including the Slavery Convention; the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; ILO Convention concerning the Abolition of Forced Labour, no. 105; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

To the Thai Government

1. Expand and improve the services available to women trafficked from Thailand to Japan, so as to facilitate their access to compensation and redress in Japan, guarantee their safe repatriation, and ensure that they have access to appropriate social services upon their return to Thailand.

(1) Train labor attaches and embassy officials in Japan regarding the rights of Thai nationals in Japan and strategies for promoting these rights. Explicitly instruct the Thai Labor Attache in Japan to assist all women from Thailand who have suffered from violations of Japanese labor laws, regardless of their immigration status or occupation.

(2) Ensure that Thai women have access to information about their rights and to legal assistance in Japan, so that they may pursue civil and/or criminal claims related to trafficking, debt bondage, and any other abuses they have suffered.

(3) Protect trafficked women from further victimization by taking all necessary precautions to protect their confidentiality. In addition, when issuing Certificates of Identity,(2) inform women verbally and in writing that they are not liable for any fine or other penalty upon their arrival in Thailand.

(4) Work with appropriate NGOs to expand the services available to trafficked women after they return to Thailand. Such services should include counseling, safe shelter, medical care, vocational training, and information about job opportunities, women's groups, and other support networks throughout the country. Ensure that all services offered to women over the age of eighteen are strictly voluntary and non-punitive; in providing services to children, the best interests of the child should in all cases be given primary consideration, taking into account the expressed wishes of the child and her family members.

2. Improve law enforcement efforts to prevent and punish the trafficking of persons out of Thailand, including efforts to crack down on official complicity in such crimes.

(1) Prohibit the trafficking of women into conditions of servitude in any labor sector in the penal code; these changes also should be reflected in the application of the Trafficking Act.

(2) Enact legislation establishing a witness protection program that could be used by women who testify against traffickers in Thailand or abroad.

(3) Evidence and allegations of official complicity in trafficking or servitude abuses should be thoroughly investigated, and any officials against whom there is adequate evidence prosecuted.

(4) Provide training to judges, prosecutors, immigration officials and police regarding special considerations in trafficking cases, including victims' fear of retaliation and need for confidentiality. Using the "Memorandum of Understanding on Common Guidelines of Practices for Agencies Concerned with Cases where Women and Children are Victims of Human Trafficking,"(3) train officials to use the provisions in the Trafficking Act that are aimed at overcoming obstacles to prosecution, such as section 12, which authorizes police to bring women to court immediately to give their testimony, even if the suspect has not yet been apprehended.

3. Take steps to reduce women and girls' vulnerability to trafficking by expanding their education and employment opportunities in Thailand and empowering them to protect their rights as workers overseas.

(1) Implement the National Education Act's promise to extend free and compulsory education nationwide, with a particular emphasis on ensuring girls' access to education.

(2) Promote skills training for women in accordance with market demand, rather than with traditional conceptions of appropriate women's work. Provide training to staff of vocational training programs, teaching them to avoid gender stereotyping both in advising women on course selection and in instructing (men and) women in the classroom.

(3) Establish labor information centers with up-to-date, practical information regarding labor migration and the rights of migrant workers abroad. This should include information about relevant laws and regulations in destination countries as well as about governmental and nongovernmental services (such as medical care, shelters, legal counsel, etc.) available to foreign migrants, both documented and undocumented. In the case of Japan, where so many Thai women are employed in the entertainment industry, particular attention should be given to conditions in this industry, and Japanese laws and regulations regarding entertainment businesses and prostitution. Also include information about the services and duties of Thai Embassy and Consulate officials and Thai Labor Attaches abroad.

4. Protect women's right to freedom of movement, including international travel.

(1) Amend the Trafficking Act to protect the rights of women and children travelers. While briefly restricting a woman or child's freedom of movement for the purpose of factual clarification and document verification may be appropriate, compulsory body searches are unacceptable and the right to be free from arbitrary detention must be protected. Remove the language in Section 9 that permits officials to search the bodies of women and children based on their status as "suspected victims." Amend Sections 10 and 13 to ensure (a) that all persons detained as suspected trafficking victims have immediate access to a court that may decide the lawfulness of their detention; (b) that all due process protections, including the right to legal counsel, are afforded to such persons; and (c) that detainees have access to the medical, social, and other services they need.

(2) Eliminate the discriminatory practice of referring passport applications of (only) women ages fourteen to thirty-six to the Department of Public Welfare for review when the women "have been suspected by MFA of being procured to sexual business in foreign countries." Do not in any way discriminate against women who wish to travel overseas, regardless of the purpose of their travel.

5. Take steps to address the particular vulnerability of hilltribe and refugee women to trafficking and to facilitate their safe repatriation when trafficking abuses occur.

(1) Strengthen efforts to regularize the status of hilltribe persons in Thailand by providing them with provisional legal residency status -- including the right to work -- as well as the opportunity to apply for citizenship.

(2) Allow all children residing in Thailand to attend school and receive diplomas, regardless of their citizenship status.

(3) Allow all persons trafficked out of Thailand who can provide evidence of a genuine effective link with the country, such as long-term residence (including residence in refugee camps within Thai borders), to reenter the country, regardless of their citizenship status.

6. Ratify relevant international conventions, including the Slavery Convention and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; the Convention relating to the Status of Refugees; the Protocol relating to the Status of Refugees; the Convention on the Reduction of Statelessness; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Remove reservations from Article 7 of the Convention on the Rights of the Child, thereby recognizing the right of all children to be registered immediately after birth and to acquire a nationality.

To the Japanese and Thai Governments

1. Discuss and implement concrete measures to reduce migrant Thai women's vulnerability to labor exploitation in Japan. Such measures could include expanding the opportunities for legal labor migration by women from Thailand to Japan, and conducting awareness-raising activities for migrant Thai women in both Thailand and Japan.

(1) Reevaluate immigration policies, taking into account the labor market demands in Japan and the labor supply in Thailand.

(2) Continue awareness-raising activities in both Thailand and Japan that include information on services available to assist migrant women in escaping traffickers and abusive employers, and in seeking compensation and redress for violations.

2. Work cooperatively -- and in coordination with relevant Japanese and Thai NGOs -- to ensure the safe and humane repatriation of victims of trafficking, servitude, and other abuses.

Ensure that all women from Thailand have access to the identification and funds needed for travel expenses. Cooperate with NGOs, including women's shelters, to ensure that women have access to temporary housing and other necessary services before and after repatriation, as needed. At all times, strong precautions should be taken to protect the women's confidentiality.

3. Establish a monitoring body, with the financial support of both governments, to assess the cross-border trafficking situation; identify loopholes in existing laws; make recommendations for coordinating government policies to enhance access to services for victims of trafficking and improve the effectiveness of law enforcement efforts; and monitor and publicly report on the implementation of such policies. This body should include representatives from nongovernmental organizations (NGOs) and the Japanese and Thai governments, and should seek input from relevant intergovernmental organizations, such as the International Organization for Migration and the International Labour Organization. The monitoring body should prepare a joint operational plan that both governments are committed to implementing within a reasonable, designated period of time.

To All Governments

  • Ensure that the "Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children," currently being drafted as a supplemental protocol to the United Nations Convention against Transnational Organized Crime, incorporates strong provisions for the protection of the human rights and physical safety of trafficking victims.

  • Ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. This convention emphasizes that all migrant workers, whether documented or undocumented, are to be accorded fundamental human rights. These rights include the right to life, the right to be free from cruel, inhuman or degrading treatment or punishment, the right to be free from slavery, servitude, and forced or compulsory labor, and the right to due process. While it does not propose new human rights for migrant workers, this convention draws attention to a vulnerable population whose human rights are often exempted from state protection.

  • Raise the problem of trafficking in persons, and particularly the trafficking of women from Thailand into compulsory labor in Japan, in high-level discussions with the Japanese and Thai governments.

  • Ensure that any anti-trafficking training programs that involve Japanese and/or Thai law enforcement officials emphasize the importance of protecting the rights of victims, ensuring their physical safety, and providing them with access to necessary services. Allow for outside monitoring of training programs -- including curricula and instructors -- by NGOs with expertise regarding the rights and needs of trafficked persons.

  • Allow for outside monitoring of trafficking prevention and reintegration programs carried out in Thailand. These activities should be designed and implemented in a way that empowers women and girls to protect themselves from trafficking abuses and to seek redress for violations. Efforts to prevent trafficking of women from Thailand should include the promotion of viable economic opportunities for women and girls and information dissemination regarding legal overseas migration opportunities for women and their rights overseas. Particular attention should be given to reaching vulnerable populations, such as hilltribe and refugee women and girls.(4)

To Intergovernmental Organizations

United Nations High Commissioner for Refugees (UNHCR)

  • In accordance with UNHCR's mandate to address the problem of statelessness,(5) UNHCR protection officers in Japan and Thailand should work with Japanese and Thai officials to arrange durable solutions for women whose citizenship is disputed or unclear, including repatriation to Thailand.

  • UNHCR protection officers in Japan should work to ensure that those victims of trafficking and servitude who fear retaliation in Thailand have sufficient opportunity to apply for refugee status.

    International Organization For Migration (IOM)

  • Include Japan in technical cooperation activities, urging the Japanese government to adopt policies and legislation that will not create unnecessary obstacles for legal migration, impose heightened criminal penalties for trafficking, provide trafficking victims with incentives to testify against traffickers, and treat trafficked migrants as victims rather than offenders.

  • Work with the Thai government in implementing and evaluating the "Memorandum of Understanding on Common Guidelines of Practices for Agencies Concerned with Cases where Women and Children are Victims of Human Trafficking."

  • Adopt concrete measures and detailed recommendations for the promotion of the health of migrant workers, as called for in the Memorandum of Understanding signed by WHO and IOM in October 1999 to "better meet the health needs of migrants and other displaced persons."

    International Labor Organization (ILO)(6)

  • Assess the situation of migrant workers in Japan, with particular attention to the labor rights abuses suffered by foreign women working in the entertainment or sex industry.

  • Make concrete recommendations to the Japanese government regarding legislative measures, training activities, and other steps that could be implemented to improve the protection of the rights of all migrant workers, both documented and undocumented.

    World Health Organization (WHO)

  • Adopt concrete measures and detailed recommendations for the promotion of the health of migrant workers, as called for in the Memorandum of Understanding signed by WHO and IOM in October 1999 to "better meet the health needs of migrants and other displaced persons."

  • Urge Japan to apply health policies without discrimination based on migration status; in particular, urge Japan to provide undocumented migrant women (and especially victims of trafficking and servitude in the sex industry) with access to confidential HIV/AIDS testing, counseling, and treatment on an basis equal to Japanese citizens.

  • At the WHO research center in Kobe, Japan, study the health needs of migrant workers (including those in the sex industry), looking at their access to medical care.

  • 1. Concluding observations by the Human Rights Committee, November 5, 1998, paragraph 10: "More particularly, the Committee is concerned that there is no independent authority to which complaints of ill-treatment by the police and immigration officials can be addressed for investigation and redress. The Committee recommends that such an independent body or authority be set up by the State Party without delay."

    2. Certificates of Identity are temporary travel documents issued by the Thai Embassy to Thai nationals who lack valid passports.

    3. This documented was drafted and adopted by a coalition of Thai government and nongovernmental representatives in 1999)

    4. According to USAID's description of "Preventing the Trafficking in Women and Children in South and South East Asia," "The primary beneficiaries of this assistance will be those populations in each country considered most vulnerable to being trafficked, as well as the community-based organizations engaged in assisting these populations." USAID, "Democracy Programs: Asia Regional," http://www.info.usaid.gov/democracy/ane/traffic.html. Available March 2000.

    5. Excom Conclusion No. 78 (1995), the Conclusion on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons, instructs UNHCR to "undertake the functions foreseen under Article 11 of the 1961 Convention on the Reduction of Statelessness;" namely, to serve as "a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority." In addition, Excom Conclusion No. 78 "[f]urther requests UNHCR actively to promote the prevention and reduction of statelessness through the dissemination of information, and the training of staff and government officials; and to enhance cooperation with other interested organizations."

    6. The ILO has a constitutional mandate to address migrant workers issues and has initiated a special program to combat discrimination against migrant workers and ethnic minorities.


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