lezione 5.5.16

A South East Asian Approach

INTERNATIONAL COOPERATION

IN THE FIGHT AGAINST HT AND SOM

Luca Cricenti 5/5/2016

3.5 million refugees in the Asia-Pacific region (30% of the total amount), 63% of them live outside of camps.

SOUTH EAST ASIA


1.9 million Internally Displaced People (IDP’s), over 400.000 in Myanmar.

Only 3 countries (Philippines, Cambodia, Timor-Leste) have acceded to the 1951 Refugee Convention and 1967 Protocol. 1.6 million migrant workers (unskilled and unqualified) per

year, 30% inside South East Asia.

10 countries: Singapore, Malaysia, Thailand, Indonesia, Philippines, Brunei, Cambodia, Laos, Myanmar, Vietnam.

ASSOCIATION OF SOUTHEAST ASIAN NATIONS


625 million: ASEAN’s total population is higher than EU’s one. ASEAN Charter (2008) and AICHR (2012) born of a community and human rights approach: art.2(1) principle of non-discrimination «extended» (unity in diversity). Other basic principles: - Primacy of UN Charter and international humanitarian law; - Non-interference in the internal affairs of ASEAN Member States.

- Investigation about

immigration policy and citizenship laws in order to identify HT and Migration Root Causes

COUNTRY NARRATIVES


N.B. These are countries involved, directly or indirectly, in Rohingya Human Trafficking.

Indonesia Malaysia

Thailand Myanmar

Australia Objectives

AUSTRALIA 1/2A culture of inhospitality: national security justification


HTDomestic legislation:

AUSTRALIA 2/2


Migration Act 1958, Racial Discrimination Act 1975 and CPA

Migration Act Reforms of 90’s

«Pacific Solution» v. «Malaysian Solution»

«White Australia Policy» 1901 Penal Code reforms 1995-1999-2005

Visa protection systemRegional actions: National Action Plan

to Eradicate TIP 2004 Asia Regional TIP Project

2006 Bali Process and AAPTIP

Immigration laws:

MalaysiaAsylum seeker claims:

IndonesiaAsylum seeker claims:

BUTTERFLY EFFECT OF AUSTRALIAN LEGISLATION

A Transit and an Origin (Muslim) Country


During 2008-2013 more than 2.000 fatalities.

2008-2013 from 20.000 to 60.000

2014-2015 more than 100.000

Refugees:Today 152.000 (45.000 Rohingya)

2008-2013 from hundreds to more than 10.000 2014-2015 7.900

Refugees:Today 5.200 (hundreds of Rohingya)

2007 anti-trafficking law:


INDONESIA (TIER 2)

Art.1(1) “…the recruitment, transportation, harbouring, sending, transfer, or receipt of a person by means of threat or use of force, abduction, incarceration, fraud, deception, the abuse of power or a position of vulnerability, debt bondage or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, whether committed within the country or cross-border, for the purpose of exploitation or which causes the exploitation of a person”.

1992 immigration law 2011 reform and 2013

regulations Criminal innovation

Weak victim’s protection

1959 Immigration law 92.3% of Indonesian trafficked people are led and exploited in Malaysia.


MALAYSIA (TIER 2 WATCH LIST)

2009 Trafficking Protocol2010 Anti-TIP and Anti-SOM Act, innovations:- Definition of trafficking and Smuggled Migrant- 5th alleged crime of HT: Transit in Malaysia with a

trafficked person- 4 hypothesis of SOM: S(26B)Exploitation of Smuggled

Migrant

– Section 15 “No Visa for ASEAN migrants”– Section 55 “SOM”

1997-2002 reforms: deterioration of illegal migrants conditions.

2004 UNCTOC2007 Anti-TIP Act:

– S(15) Profit of the exploitation (1 of the 4 forms of HT)

An History of Woman Exploitation: From R&R Camps to the “Sexual Tourism”


THAILAND (TIER 3)

Parallelism between Prostitution and HT:– 1908 Contagious Disease Act 1928 Traffic in Women

and Girls Act– 1960 Prostitution Prevention and Suppression Act (+

1959 Citizenship Act and 1965 Nationality Act) Negative effects

– 1996 Prostitution Act 1997 Measures in Prevention and Suppression of Trafficking in Women and Children Act

(HR Approach)– 2008 Anti-TIP Act - All Forms of HT - Any person - Organized group as an aggravating factor


MYANMAR (TIER 2 WATCH LIST) 1/2

An Origin Country for Trafficked Women in Thailand (90s):

- 1947 Burma immigration Act and 1951 Detention Rules against migrants return/repatriation

- 1962 military coup and 1982 Citizenship Act- 1989 prohibition for women free movement


MYANMAR (TIER 2 WATCH LIST) 2/2

2004 UNCTOC 2005 Anti TIP Law = Trafficking Protocol

2011: 1st country on the Child Soldiers Prevention Act

2011-2016 National Plan to Eradicate TIP in concert with U.S. Government, notwithstanding TVPA standards

ASEAN:- 1997 Declaration on Transnational Crime (Manila) ACOT- 1998 Ha Noi Declaration 6years Plan of Action- 2004 Declaration Against Trafficking In Persons

Particularly Women And Children (Vientiane Declaration) Victims HR Approach Persuasive: after Declaration many countries ratified Trafficking Protocol

- 2015 ACTIP i) HR Approach and establishment of a monitoring body (SOMTC) as COE Trafficking Convention ii) UNCTOC + Trafficking Protocol provisions iii) Art.4 “Protection of Sovereignty” iv) Ratified by 2 countries (4 ratification left) v) Lack of a judicial body (as UNCTOC)


ANTI-TIP REGIONAL ACTIONS 1/2

Australia- 2002 Bali Process International official forum (48 members) on SOM, HT and Transnational Crimes- 2013 AAPTIP Focused on traffickers persecution in ASEAN countries (5years action program)


ANTI-TIP REGIONAL ACTIONS 2/2

Greater Mekong Sub-region- 2004 COMMIT MoU 3P’s Approach (specific protection of trafficked victims against arbitrary detention) Soft Law - 2006 Proposed Guidelines for the Protection of the

Rights of Trafficked Children in Southeast Asia (by ASIA ACT)

Complete child trafficking definition (child soldier, sham adoption, forced marriage; domestic HT)

1999 Bangkok Declaration on Irregular Migration - ASEAN Countries, Japan and Australia: common policies in the irregular migration area. - Art.9 “Poverty first push factor” (65% of the pauper

global population in the Asia-Pacific region)


REGIONAL ACTIONS AGAINST IRREGULAR MIGRATION

2007 ASEAN Declaration On The Protection And Promotion

Of The Rights Of Migrant Workers Deal with root causes of migration in origin and destination countries 2015 ASEAN Summit on Migrant Emergency ASEAN renounce to protect ASEAN citizens (“push-back policy”)

Results: Tight border controls will not work unless other factors are addressed simultaneously Countries should adopt the burden-sharing policy.


MYANMAR AND

THE PLIGHT

OF ROHINGY

A

1948-1961 4 January 1948

Independence

1962-2015 1962 Coupe d'état


ROHINGYA STATUS IN MYANMAR

1948 Union Citizenship Act and Union Citizenship (Election) Act NRC

1961 Project of a new Citizenship Act 144 minorities

1962 Reforms of 1948 citizenship laws NRC’s collection

1982 Citizenship Act

1995 «White Card»

2015 «Green Card»

1978 Operation Na Gamin (King Dragon)– 252.000 Rohingya left Burma (143.000 for the junta)– 187.250 repatriated from Bangladesh (1979)


HISTORY OF DISCRIMINATION AND ROOT CAUSES

1982 Citizenship Act– 135 ethnic minorities (Rohingya called Bengalese)– 3 kinds of nationality: full, associate, naturalized 1992 NaSaKa establishment– killings, rapes and razed villages– more than 250.000 Rohingya run off to Bangladesh– 236.000 repatriated (1994) 2012 Riots– 2010 reforms 969 movement violence >140.000 IDP’s– From 9.000 Rohingya migrants in 2011 to 120.000 in 2015

Transnational peculiarity and overlapping with SOM

- IDP and IDC used by traffickers to pray victims (more than 200.000 Rohingya in IDP in Myanmar, UNHCR 2015)

- Authorities connivance and corruption in Myanmar and Thailand Repatriation or «Option Two»

- October-December 2013 more than 2.000 Rohingya disappeared 27 mass graves in the “Holding Bayes” new form of exploitation


ROHINGYA HT

Domestic HT of children- Lack of data- Forced labour in mines and construction industries beside China and Thailand boundaries- Conscription in Burmese Army

Acts of Genocide:1) Killing 2) Serious bodily or

mental harm 3) Conditions of life

calculated to physical destruction

4) Measures to prevent births

5) Forcibly transferring children

- Protected group: Rohingyas are an ethnic, protected group- Intent to destroy: difficulties to prove it

SPDC acts:1) NaSaKa2) NaSaKa/Operation Na

Gamin3) NaSaKa/1982

Citizenship Act4) 1994 wedding permit

and 2005 birth restrictions (two-child policy)

5) Domestic HT


SLOW-BURNING GENOCIDE THEORY

Transnational UNCTOC No

International Court that could apply sanctions

Domestic UN Inquiry Commission

in Myanmar


LEGAL RESPONSES TO ROHINGYA HT

N.B. March 2016: Thai Court process against human traffickers.

ICC Art.7 crimes against humanity:

– Myanmar declaration (no State party)

– Bengalese traffickers or HT

to Bangladesh– U.N. Security Council

ICC – Myanmar declaration

under art.12(3)– U.N. Security Council Domestic Court NLD

new government

Special Thanks to Professor Ugi Zvekic


THANK YOUFOR YOUR ATTENTION

lezione 5.5.16

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