Refugee Watch

"A South Asian Journal on Forced Migration"

Issue NO.30

The War On Immigrants by Stephen Lendman
The Bar Dancer and The Trafficked Migrant: Globalisation and Subaltern Existance by Flavia Agnes
Boundaries, Borders and Bodies by Hameeda Hossain
The Dynamics of Refugee Protection and Humanitarian Assistance in Nigeria by Shambhavi V. Murthy Gopalkrishna
How to Balance Rights and Responsibilities on Asylum at The EU's Solution Border of Italy and Libya by Rutvaca Andrijasevic
Refugee Protection and Mixed Migration: A 10-Point Plan of Action- Discussion Paper I
The Unrecognized Palestinian Refugees in Lebanon- Discussion Paper II 
The Lack of International Protection of Iraqi Refugees in Lebanon- Discussion Paper III
Book Review by Ksenia Glebova
Book Review by Binod Mishra

The War On Immigrants 
by Stephen Lendman(*Email: lendmanstephen@sbcglobal.net)

The Bar Dancer and The Trafficked Migrant: Globalisation and Subaltern Existance 
by Flavia Agnes(* Jurist, Majlis, Mumbai)

Bar Dancers and Differing Perceptions

             An important feature of a rally organized by bar owners against police raids in Mumbai on 20^th August 2004 was the emergence of the bar dancer.  A large number of girls with their faces covered were at the forefront of the rally holding up placards with blown up pictures of semi clad Bollywood stars.  It was a statement questioning the hypocritical moralilty of the state and civil society.  This image became the motif for the media for the following year when the controversy around the bar dancer was raging.   The media reported that there are around 75,000 bar dancers in the city of Mumbai and its suburbs and they have organized themselves into a union to resist police raids.  
            The mushrooming of an entire industry called the ‘dance bars’ had escaped the notice of the women’s movement in the city.  Every one in Mumbai was aware that there are some exclusive ‘ladies bars’. But usually women, especially those unaccompanied by men, are stopped at the entrance.  So many of us did not have any inside information regarding the bar dancers.   Except within the for the closed doors of the doors during late hours of the night, they led an invisible life.  But the 20^th August rally changed all that.  
            Soon after the rally, Ms. Varsha Kale, the President of the Bar Girls Union approached us (the legal center of Majlis) to represent them through an ‘Intervener Application’ in the Writ Petition filed by the bar owners.  During the discussion with the bar dancers, it emerged that while for the bar owners it was a question of business losses, for the bar girls it was an issue of human dignity and right to livelihood.  When the bars are raided, it is the girls who are arrested, but the owners are let off.  During the raids the police molest them, tear their clothes, and abuse them in filthy language. At times, the girls are retained in the police station for the whole night and subjected to further indignities. But in the litigation, their concerns were not reflected.  It is essential that they be heard and they become part of the negotiations with the State regarding the code of conduct to be followed during the raids. 
            As far as the abuse of power by the police was concerned, we were clear.  But what about the vulgar and obscene display of the female body for the pleasure of drunken male customers, which was promoted by the bar owners with the sole intention of jacking up their profits?  It is here that there was a lack of clarity. I had been part of the women’s movement that has protested against fashion parades and beauty contests and semi-nude depiction of women in Hindi films. But the younger lawyers within Majlis had a different perspective. They belonged to a later generation, which had come to terms with fashion parades, female sexuality and erotica.   
            Finally after much discussion, we decided to take on the challenge and represent the bar girls’ union in the litigation.  In order to understand the issue we spoke to many bar dancers and also visited dance bars.  Though I was uncomfortable in an environment of palpable erotica, I realized that there is a substantial difference between a bar and a brothel. An NGO, Prerana, which works on anti-trafficking issues, had filed an intervener application, alleging the contrary – that bars are in fact brothels and that they are dens of prostitution where minors are trafficked. While the police had raided the bars on the ground of obscenity, the Prerana intervention added a new twist to the litigation because they submitted that regular police raids are essential for controlling trafficking and for rescuing minors. The fact that the police had not abided by the strict guidelines in anti-trafficking laws and had molested the women did not seem to matter to them.  At times, after the court proceedings, we ended up being extremely confrontational and emotionally charged, with Prerana representatives accusing us of legitimizing trafficking by bar owners and us retaliating by accusing them of acting at the behest of the police.  

Out of The Closet  - Into The Public Domain  

            Sometime in March 2005, when the arguments were going on in the High Court, the first announcement on the closure of dance bars was made by the Deputy Chief Minister Shri R.R. Patil.  The announcement was followed by unprecedented media glare and we found ourselves in the centre of the controversy as lawyers representing the bar girls’ union. The controversy had all the right ingredients - titillating sexuality, a hint of the underworld, and polarized positions among social activists.  Ironically, the entire controversy and the media glare helped to bring the bar girl out of her closeted existence. It made the dance bars more transparent and accessible to women activists.  Some women’s groups came out openly in support of the dancers.  But an equal or even greater number of NGOs and social activists issued statements supporting the ban.  Among them were child-right and anti-trafficking groups led by Prerana. The women members of the NCP came on the street brandishing the banner of depraved morality.Paid advertisements appeared in newspapers and signature campaigns were held at railway stations.  ‘Sweety and Savithri - who will you choose?’ goaded the leaflets distributed door to door, along with the morning newspaper. The term Savithri, denoted the traditional pativrata, an ideal for Indian womanhood, while Sweety denoted the woman of easy virtue, the wrecker of middle class homes. 
            Suddenly the dancer from the city’s sleazy bars and shadowy existence had spilled over into the public domain. Her photographs were splashed across the tabloids and television screens.  She had become the topic of conversation at street corners and market places; in ladies compartments of local trains and at dinner tables in middle class homes. Every one had an opinion and a strong one at that.  In her favour, or, more likely, against her.  Saint or sinner … worker or whore … spinner of easy money and wrecker of homes or victim of patriarchal structures and market economy? The debate on sexual morality and debasement of metropolitan Mumbai seemed to be revolving around her existence (or non-existence). The anti-trafficking groups who had been working in the red light districts had not succeeded in making a dent in child trafficking in brothels that continue to thrive.  But in this controversy, brothel prostitution and trafficking of minors had been relegated to the sidelines. The brothel prostitute was viewed with more compassion than the bar dancer, who may or may not resort to sex work.  
            The bar dancer was made out to be the cause of all social evils and depravity.  Even the blame for the Telgi scam was laid at her door; the news story that Telgi spent Rs.9, 300,000 on a bar dancer in one night was cited as an example of their pernicious influence. The criminal means through which Telgi amassed wealth faded into oblivion in the fury of the controversy.   

Hypocritical Morality 

            Was it her earning capacity, the legitimacy awarded to her profession, and the higher status she enjoyed in comparison to a sex worker that invited the fury from the middle class Maharashtrian moralists?   
            While the proposed ban adversely impacted the bar owners and bar dancers from the lower economic rungs, the state proposed an exemption to hotels which hold three or more “stars”, or clubs and gymkhanas.  Those of us who opposed the ban raised some uncomfortable questions: “Could the State impose arbitrary and varying standards of vulgarity, indecency and obscenity for different sections of society or classes of people?  If an ‘item number’ of a Hindi film can be screened in public theatres, then how can an imitation of the same be termed as ‘vulgar’? The bar dancers imitate what they see in Indian films, television serials, fashion shows and advertisements. All these industries use women’s bodies for commercial gain. There is sexual exploitation of women in these and many other industries. But no one has ever suggested that you close down an entire industry because there is sexual exploitation of women! Bars employ women, as waitresses and the proposed ban would not affect this category. Waitresses mingle with the customers more than the dancers who are confined to the dance floor. If the anti-trafficking laws had not succeeded in preventing trafficking, how could the ban on bar dancing prevent trafficking?  And if certain bars were functioning as brothels, why were the licenses issued to them not revoked?”  
            Since the efforts of the Deputy Chief Minister to get an Ordinance signed by the Governor failed, the government drafted a bill and presented it to the State Assembly. It was an amendment to the Bombay Police Act, 1951 by inserting certain additional sections. On July 21, 2005, the Bill was passed at the end of a, ‘marathon debate’.  Since the demand for the ban was shrouded with the mantle of sexual morality, it was passed unanimously.  The debate was marathon not because there was opposition, but every legislature wanted to prove his moral credentials. No legislator would risk sticking his neck out to defend a lowly bar dancer and tarnish his own image. In the visitor’s gallery, we were far outnumbered by the pro-ban lobby, the ‘Dance Bar Virodhi Manch’, who had submitted 150,000 signatures to the Maharashtra state assembly insisting on the closure of dance bars.   
            It was a sad day for some of us, a paltry group of women activists, who had supported the bar dancers and opposed the ban. We were sad, not because we were outnumbered, not even because the Bill was passed unanimously, But because of the manner in which an important issue relating to women’s livelihood, which would render   thousands of women destitute, was discussed.  We were shocked at the derogatory comments that were passed on the floor of the House, by our elected representatives, who are under the constitutional mandate to protect the dignity of women!  Not just the bar dancers but even those who spoke out in their defense became the butt of ridicule during the Assembly discussions.  The comments by the legislatures while debating the bill protecting the dignity of women were frivolous at best and down right bawdy and vulgar at its degenerated worst. 
            One member stated: ‘we are not Taliban but somewhere we have to put a stop.  The moral policing we do, it is a good thing, but it is not enough … we need to do even more of this moral policing..’  Suddenly the term ‘moral policing’ had been turned into a hallowed phrase!   
            These comments were not from the ruling party members who had tabled the bill.   They were from the opposition.  Their traditional role is to criticize the bill, to puncture holes in it, to counter the argument, to present a counter viewpoint.  But on that day, the House was united, across party lines and all were playing to the gallery with their moral one-upmanship.  No one wanted to be left out.  Not even the Shiv Sena whose party high commandis linked to a couple of dance brs in the city, supported the ban on ‘moral’ grounds. And the Marxists were one with the Shiv Sainiks. The speech by the CPI (M) member was more scathing, than the rest. 
            It was a moral victory to the Deputy Chief Minister (DCM), Shri R. R.Patil.  In his first announcement in the last week of March 2005, he had said that only bars outside Mumbai would be banned.  A week later, came the next announcement. The state shall not discriminate! All bars, including the ones in Mumbai, would be banned. What had transpired in the intervening period one does not know?  But what was deemed as moral, legal and legitimate, suddenly a week later, came to be regarded as immoral, vulgar and obscene. 
            The ‘morality’ issue had won.  The ‘livelihood’ issue had lost.  It was indeed shocking that in this era of   liberalization and globalization dominated by market forces, morality had superseded all other concerns, even of revenue for the cash-strapped state.   
            The demand for the ban was grounded on two premises, which were contradictory to each other.  The first - that the bar dancers are evil and immoral, they corrupt the youth and wreck middle class homes; they hanker after easy money and amass a fortune each night by goading innocent and gullible young men into sex and sleaze. The second - that bars in fact are brothels and bar owners are traffickers who sexually exploit the girls for commercial gains. This premise refused to grant an agency to the women dancers.  Rather unfortunately, both these populist premises appealed to the parochial, middle class Maharashtrian sense of morality.  What was even worse, the demand for a ban was framed within the language of ‘women’s liberation’ and the economic disempowerment of this vulnerable class of women came to be projected as a plank which would liberate them from sexual bondage.  
            On August 14^th, 2005, at the midnight hour, as the music blared in bars packed to capacity in and around the city of Mumbai, the disco lights were turned off and the dancers took their final bow and faded into oblivion. As the State celebrated the Independence Day, an estimated 75,000 girls, mainly from the lower economic strata, lost their means of livelihood.  
            Some left the city in search of options, others fell by the wayside.  Some became homeless. Some let their ailing parents die.  Some pulled their children out of school.  Some were battered and bruised by drunken husbands, as they could not bring in the money to make ends meet.  Some put their   pre-teen daughters out for sale in the flesh market.  And some committed suicides …    just names in police diaries  …  Meena Raju … Bilquis Shahu  ... Kajol …  In the intervening months there were more to follow.    A few stuck on and begged for work as waitresses in the same bars.    
            The exit of the dancer brought the dance bar industry to a grinding halt. Devoid of glamour and fanfare, the profit margins plummeted and many bars closed down.  Few others braved the storm and worked around the ban by transforming themselves into ‘silent bars’ or ‘pick up points’ - slang used for the sex trade industry. Left with few options, women accepted the paltry sums thrown at them by customers, to make ends meet. Groups working for prevention of HIV/AIDS rang a warning bell at the increasing number of girls turning up for STD check ups. 

Constructing The Sexual Subject   

            Soon thereafter, Petitions were filed in the Bombay High Court challenging the constitutionality of the Act by three different segments - the bar owners associations, the bargirls union and social organizations. 
            After months of legal battle, finally, the High Court struck down the ban as unconstitutional The judgement was pronounced on 12^th April, 2006 to a packed court room by a Division Bench comprising of Justices F.I. Rebello and Mrs. Roshan Dalvi and made national headlines.   The ban was struck down on the following   two grounds:
·      the  exemption (given to certain categories of  hotels as well as  clubs etc.)  has no reasonable nexus to the aims and objects which the statute  is supposed to achieve and hence it is arbitrary and violative of Article  14 of the Constitution of India   (the clause of equality and non-discrimination);  
·      it violates the fundamental freedom  of the bar owners and the bar dancers to practice a occupation  or profession and is violative of Article 19 (1)(g) of the Constitution.    
            The Court held that the dance bar ban violates fundamental freedom guaranteed under Article 19(1)(g) of the Constitution. This is a significant development and nearly half the pages of the extensive 257 page judgment deals with this concern.  “Are our fundamental rights so fickle that a citizen has to dance to the State’s tune”, was the caustic comment.[i]   
            Further the court held:  “The State does not find it offensive to the morals or dignity of women and / or their presence in the place of public entertainment being derogatory, as long as they do not dance.  The State’s case for prohibiting dance in dance bars is, that it is dancing which arouses the physical lust amongst the customers present.  There is no arousing of lust when women serve the customer’s liquor or beer in the eating house, but that happens only when the women start dancing. ….   The right to dance has been recognized by the Apex Court as part of the fundamental right of speech and expression. If that be so, it will be open to a citizen to commercially benefit from the exercise of the fundamental right.   This could be by a bar owner having dance performance or by bar dancers themselves using their creative talent to carry on an occupation or profession.  In other words, using their skills to make a living….”[ii]  
            A glaring discrepancy in the arguments advanced by the State was in the realm of the agency of this sexual woman.   At one level the State and the pro-ban lobby advanced an argument that the dancers are evil women, who come to the bars to earn ‘easy money’ and corrupt the morals of the society by luring and enticing young and gullible men.  This argument granted an agency to women dancers. But after the ban, the government tried to justify the ban on the ground of trafficking and argued that these women lack an agency and need State intervention to free them from this world of sexual depravity in which they are trapped.
            Refuting the argument of trafficking, the Court commented:  “no material has been brought on record from those cases that the women working in the bars were forced or lured into working in the bars. The statement of Objects and Reasons does not so indicate this. … To support the charge of trafficking in order to prohibit or restrict the exercise of a fundamental right, the State had to place reliable material, which was available when the amending Act was enacted or even thereafter to justify it. A Constitutional Court in considering an act directly affecting the fundamental rights of citizens, has to look beyond narrow confines to ensure protection of those rights. In answer to the call attention Motion, an admission was made by the Home Minister and it is also stated in the Statement of Objects and Reasons that young girls were going to the dance bars because of the easy money they earned and that resulted also in immoral activities. There was no mention of trafficking.”[iii]
            Rather ironically the anti-ban lobby also framed its arguments within this accepted  ‘victim’ mould.  Single mothers, traditional dancers with no other options. Further, it was important for the anti-ban lobby to make a clear distinction between the dancer  / entertainer and the streetwalker and base the arguments squarely upon the fundamental right to dancing. The sexual erotic inherent in dancing had to be carefully crafted and squarely located within ‘Indian traditions’ and the accepted norm of ‘Bollywood gyrations’ and not slip beyond into sexual advances.  The emphasis had to be for a right to livelihood only through dancing and not beyond. 
            During the entire campaign, the world of the bar dancer beyond these confines lay hidden from the feminist activists who campaigning their cause and was carefully guarded by the bar dancer.  Only now and then would it spill over more as a defiant statement.  So while we were exposed to one aspect of their lives which had all the problems – of parenting, poverty, pain and police harassment, we must admit that this was only a partial projection, an incomplete picture.  We could not enter the other world in which they are constantly negotiating their sexuality, the dizzy heights they scale while they dance draped in gorgeous chiffons studded with sequences, oozing out female erotica and enticing their patrons to part with a generous tip.   

The Trafficked Woman 

            Prior to the ban, the state administration initiated some discussion about the possible rehabilitation of the bar dancers. However, when they realised the enormity of the proposition, they hastily modified their stand. According to the Deputy Chief Minister, Shri R. R. Patil it was neither feasible nor desirable to rehabilitate the dancers.  Showing little or no consideration towards the 'cause and effect' of its policies and actions, the Maharashtra government absolved itself of its responsibility, citing statistics of the larger proportion of women who come to Mumbai from ‘outside’, as an excuse for its indifference.
            Finally, by the time the ban was implemented, the rehabilitation proposal was abandoned all together. This was justified by the baseless allegation that the dancers were earning easy money and that they had amassed huge amounts of unaccounted wealth. This assertion was completely untrue for the overwhelming majority of the dancers. Based on this myth, the government contended that there was no need for any rehabilitation measure. 
            Faced with the almost negligible employment options and the destitution of their families, some dancers negotiated with the bar owners and a via media solution was reached to employ the former dancers as waitresses in ladies service bars. Given the fact that the majority were illiterate, this was the best option for them to ‘rehabilitate’ themselves at a lower rung within the familiar environment of the bars, where there is no stigma attached to the former bar girls. 
            Waitressing is a perfectly valid legal option as per all the exiting legislations including the latest Amendment to the Bombay Police Act. However, women employed as waitresses continued to face harassment. The Police continued to hound these women and harass them on various pretexts. They were abused and taunted to and from work and the Police continued to demand their haftas from the women, now earning negligible amounts, barely sufficient to meet their basic needs. 
            The state continued to hound women in other ways too. In fact, no avenues were left out in the witch-hunt that followed and it still continues to this day. The D.C.M. Shri. R. R. Patil, went  to the extent of announcing to the press that the witch-hunt could be public now – a licence and an invitation. The news that one or two  bar dancers  (e.g. Taranum) have been discovered to have large amounts of unaccounted wealth was blown out of proportion to suggest that all bar girls have unaccounted wealth. Shri  R. R. Patil went to the extent of making a public announcement  that people could now go out and hound the bar dancers. Whoever was successful would be rewarded with 20% of the moolah. This was not a general announcement, but a specific one targeted at bar dancers. 
            In the midst of this increasing public vilification of bar girls, on 26^th August 2005, around 85 bar dancers who were working as waitresses were arrested.  While the bar owners, managers and male staff who were arrested were released on bail the very next day, the women driven to penury could not pay the huge amount of Rs.15, 000 and were languishing in prison cells.  We met these women along with social workers from Tata Institute of Social Work. Later interveneed with the bar owners association and after months of negotiations finally the girls were released on bail.  
            It is during our prison visits that we came across yet another layer of bar dancers.  These were recent migrants and were the poorest of the poor and hence they were still in custody as they lacked even the basic support structure in the city.  They did not have any friends or relatives in Bombay.  The also did not have any indetification like ration card or voter cards and it was obvious that they were recent migrants. Most girls  spoke Bengalis   and some admitted to being Bangladeshis while others denied.  In the study conducted by S.N.D.T. University along with women’s groups where 500 girls were interviewed, there were a significant number of Bengali girls but all of them stated that they hail from Kolkota and most had Hindu names.  (It is not uncommon for bar dancers to change their names  when they come to the bars and the names they take on  are usually of famous stars from  Bollywood or television serials.  Whne we asked them their names, they would respond, ‘which name should I give  - the family name or the bar name?’.  We would be taken aback by this response.  For these girls the usuals markers like name and address also did not have much significance and these were not markers of their existence in the city. So their lives had been truly invisible prior to the bar girls controversy raging in the public domain.)
            Through our interviews we were able to detect a certain migration pattern and also probe into issues of trafficking.  The girls claimed that they came to Bombay thrugh some networks and initially were brought to work as domestic maids but were later introduced to bars where they worked as waitresses or dancers. There was no coercion or force in getting the women to work at the bar.  
            Though the women did not come to Bombay intending to work at the bars, and they may not have been initially apprehensive about the work, however, now most say that this work is the best option for them in their present circumstances since they were earning far more than they would as domestic workers and they enjoyed a certain degree of. Economic freedom.  During our interviews when asked whether they would go back to the bars after their release, initially they denied and stated vehementaly that   they would never work in a bar again.  They stated that the work was indignified and humililating.  There was also the fear that they might get arrested.  But on further probing they admitted that it was their best option and that if the ban were lifted then they would go back to working at the bar.   
            One could surmise that the women were ‘duped’ as they did not know that they were coming to Bombay to work in bars.  They came to Bombay to seek better employment opportunities as domestic workers.  But it is also possible that the so called ‘friend’ who brought them to Bombay did so with the intention of introducing them to the bars and one can surmise that there are certain chains through which women migrate to metro cities which can be termed as trafficking.  However, while there may be some sort of cheating/deception on the part of the friend, there does not appear to be any organized trafficking links operating to bring these girls and lure them into sex work.  
            There was no compulsion, other than their own economic compulsion, that made them become bar dancers.  The women arrive at some sort of arrangement with the friend who had got them the bar work. Most paid the friend a daily amount, generally Rs 100/- for food and lodgings. The women were not in any manner controlled by the bar owners. They lived separately, got daily payments, traveled to and from their rooms. 
            As regards the accommodation, the system of daily rent of Rs 100/- is the norm. We might not have come across it earlier as we generally deal with a slightly more prosperous stratum of bar dancers. These women were  from a   poorer strata than  most e dancers we had  interacted with so far. Initially, in our minds we linked this to prostitution.  But later we realsed that among this strata, it is common to have shared accommodations on daily rental basis with an average of about four to six girls sharing a room.  If the girl changed her bar she would also change her accommodation.  It was very simple.  Thus, our initial suspicion that the daily room rent was an indication of prostitution was not true.

String Operation and The Backlash 

            Just when we had surmounted the hurdle of getting these girlsreleased on bail  through negotiations with bar owners, there was yet another incident,  this time far more lethal and its implications far more  grave.  In October, 2005, while the bar dancer issue  still had a lot of news value,  and the High Court case was still pending, this incident  made news headlines and shattered the lives of  many former bar dancers.  A television channel splashed a sensational story of  the rape of a  former bar dancer  in the satellite town of  Nerul in  Navi Mumbai.  The case as it unfolded had all the ingredients of a cheap thriller – the string operations carried out by a reporter of a   television channel and her ‘source’, then the filing of the case and the media hype that followed, the detention of the victim in police custody for two days, followed by the news of her retraction before a magistrate, the questioning by the police of the journalist which ended in a dramatic suicide bid by the alleged ‘source’, who named the police and the reporter in his suicide note. In the murky events, it had become extremely difficult to gauge who is the victim and who the culprit, as the situation kept changing each day, and finally the cop emerging as the gullible victim of this sordid story.  
            Entangled amidst the twists and turns of this high profile sexual thriller were two   powerful players - the state and   the media.  Whose career was intended to be boosted up through the string operations and whose tarnished image had to be salvaged through the retraction are questions, which have easy and straightforward answers.  The starkness of the plight of the former bar dancer, estranged from her husband, who has been the butt of the state’s moral purging, strikes you in the face and blinds you.  
            But what has not been so easily discernible is the vicious retaliation by the state on the entire local community of bar dancers in Nerul and surrounding areas.  The day the retraction was reported, the papers also carried reports of the police crack down, in what was termed as  “flushing out operations”.   They arrested around 91 people, of whom 65 were former bar dancers - impoverished and illiterate, mostly Muslim, predominantly Bengali speaking. Damned as “illegal immigrants” they would be languishing in prison cells, until they are able to produce papers to prove their claim to Indian citizenship.  
            Meeting the family members of these ill-fated women was a harrowing experience. That was when we confronted the naked strength of the “state” in peacetime “operation”.    Forlorn teenaged boys sobbed while asking for news about their detainee mothers.  Elderly women came with infants in arms asking what they ought to be doing with these mother-less toddlers. Young girls reported that fearing the midnight knocks; they are spending nights in deserted and dilapidated buildings, in the outskirt of the township. Others confided that they lock their houses from the outside and hurdle together in a corner the whole night, so that they are rendered invisible. Several girls, Bengali and non-Bengali, Hindu and Muslim, complained about daily police harassments and extortions.  The raids were  no longer carried out in the  bars, now they are on the streets …  in the market place …  into their homes … there were  no safe spaces  left.  
            The  unspoken question in everyone’s  eyes was  just one: what  had gone wrong?   Nothing much really.  Just that a lowly  bar dancer living on the edge of life,  had  been goaded on  and under a false sense of security,  had dared to pose a challenge to the might of the  state.  The  incident  of rape  of a  former bar dancer, which would have otherwise gone unnoticed was scaled to the peak by the media and it would have had grave implications to the state  in the case pending before the High Court.  So the entire community had to pay the price.  This time the state machinery was wiser.  The firls were not arrested under the newly amended Bombay Police Act but under the Foreigners’ Act with no avenues open for bail or release.  The only option ahead was deportation.  The situation had become even worse due to certain extraneous  political and legal incidents.  One was the serial Bomb blast that occurred in Delhi markets on 27^th October 2005.  The newspapers reported that the terrorists had entered the country not fromPakistan but through porous borders between India and Bangaldesh.  The second was the Supreme Court decision regarding the Assam Foreign National Act were deportation could occur even without due process of law.  The seal was secured firmly on the  former bar dancers and they were guilty  and could be held captive and later deported  unless they could   place before the court the necessary documents to prove their identity as Indian nationals.  The requirements of proving nationality were far beyond this motely group of poverty stricken women who had come to Mumbai to seek bare survival.  
            As one under nourished teenager who admitted that she was a Bangladeshi metniioend to uspoignantly, ‘didi, I had not eaten for a week, there was no milk in my breast and my three month old child was starving.  If we had not crossed the border, we would have all died.  After into India, I have left my baby with my mother in a village in West Bengal and have come here six months ago so I can earn some money to keep mymother, my child and myself alive.  You may do anything, but I can never return to my country.  If I do I will die.’   How does one respond to this desperate pleading for a mere survival, particularly when countered on the other side with grave questions like terrorism and national security? 
            It is not that there weren’t such  “push back” operations in the past.  But that was years ago, during the BJP-Shiv Sena rule.  In those days, the “illegal migrant labour” was predominantly male.  And the voices of the secular forces protesting against them were loud and clear, and high-pitched.  Several citizens’ reports had condemned the inhuman manner in which the deportations were carried out. The left-government in West Bengal had protested against the treatment of Bengali Muslims and raised a voice against the deportations.  
            But times had changed.  Now it is the secular and Left-supported UPA government at the center. A Congress-NCP alliance in the state.  Those who are arrested are not the male migrant labour but the morally debased former bar dancers.  Hence the voices of protest are weak and feeble, just a motley group of women activists.  And no one else really cared.  
            You might wonder how the entire incident ended.  We talked to lawyers, human rights activists, members of national and West Bengal women’s copmmissions groups in Bangladesh. We had the option ‘exposing’ the story to the media, filing a writ petition in the High Court and gaining even greater visibility and thus a name for ourselves and our organizations.  But as we were thinking and planning the desperate voices of the women and girls kept haunting us, “Didi please leaves us alone.  Let us get deported rather than languishing in this prison cells.  Let them take us to the border and we will find our way back.”  It is this plea that paralysed us into inaction and gradually as the High Court case regarding the ban progressed, we heeded their advice and retracted.  In fact I can safely surmise that this was the first time I had retracted from a challenging situation.  But I think our strength lay in not taking on the challenge but in quietly withdrawing accepting our own limitations and their vulnerability.  It is then that I began to question the entire issue of visibility and invisibility. Were all the girls managing their lives better before the media glare came upon them?  Did all of us, do gooders, the good Samaritans, including the people who formed associations or the bar owners who brought the out of the clset for the 20^th August rally did more disservice to them than help their cause. Their concern was only one that they should be allowed to live and earn in the city.  And it is this very concern that eventually got jeopardized despite all the gains for every other segment that was involved. 
            For the media there were stories each day of eoritc dance and the thowing of the money scenes which the audience loved.  So no matter what the issue, more than half the scree would be filled with thess erotic images which served arouse the middle class Maharashtria moral sense.  For the bar owners, their money making motive could be couched under the human rights concers.  For the dance bar union people ther was the constant media publicity which made them leaders overnight. For women rights activists, it gave a new cause and newer insights and a feminist awakening regarding the bar girls and their concerns.  At the end of the entire episode I wonder what exactly did the bar girl gain from this.  And mopre importantly, where have they all vanished. How  and where are they living and how are they making their ends meet.   We do not knw and frankly many of  the segments do not even care.  While the case is pending in the Supreme Court for years on end, we all have goen back to our other concerns.  Perhaps this invisible existence is far better to suit their own ends than the high level of publicity all of us collectively gave them.

Gender, Migration and Trafficking 

            I come now to the final section of the paper in which I will attempt to situate this entire experience within a theoretical framework of   female migration and concerns of trafficking within the sex trade.
            The combination of the moral cultural panics lack of data and a general confusion in conceptual approaches to migration and trafficking has led to not only questionable responses from states but also to harmful interventions by non-governmental organization (NGOs) human rights and social justice groups at both the national and international level.
            The need is to critically examine the intersections of migration trafficking, labour, exploitation, security and terrorism, women’s rights, sexuality and human rights.  Any analysis of the complexities of the transational female migrant must extend beyond the confining parameters of the current conceptual and operational work on cross-border movements. To this end, diverse conceptual frameworks that could be employed to understand and redress the vulnerabilities of the migrant woman in the causes, process and end conditions of her migration in order to evolve alternative approaches to migration and trafficking.
            While both male and female migration is driven by economic reasons, female migration is impacted much more by value-driven policies that are those policies that contain gender-biased and other assumptions about the proper role of women.  There is also a difference in the kind of work available to male and female migrants in destination countries. Males expect to work as labourers, whereas women find work in the entertainment industry or the domestic work sector. Women are in demand as well for professional work of specific kinds such as nursing.
            We need to accept that migration does not take place only between the developed First world and the under-developed Third World and that there is greater cross-border migration within regions than from the Global South North. This is particularly true with respect to the Asian region. For example there is considerable migration from Bangladesh to India with numbers varying from 13 to 20 million. 
            The cross-border movement of the transnational migrant female subject is inadequately addressed in law and policy. This inadequacy owes in part to two conflations: the tendency to address women’s cross border movements primarily within the framework of trafficking and the conflation of trafficking with prostitution. In order to make migration policies (both international and national) conducive to women’s rights, we need to consider the nuances in the relationship between trafficking and migration and de-link trafficking from prostitution. 
            Innumerable conceptual clarity exercises in every region have made the consideration of these conceptual distinctions the focus of their objective. And yet either due to ideological baggage and positions of the various stakeholders or due to the vested interest of states, trafficking is often used as a façade to deter the entry of certain categories of migrants or to clean up establishments within the sex industry. 
            In view of these states or unstated agendas and positions , a human rights approach to trafficking cannot merely be confined to achieving conceptual clarity. It must develop specific and contextualised strategies and arguments to extricate the genuine concerns related to trafficking of persons from the unstated or moralistic concerns with migration, prostitution or national security.
            Migration is not trafficking; irregular migration is not trafficking and even smuggling is not trafficking. And yet, there is an overwhelming tendency to address cross-border movements of women primarily through the framework of trafficking. Trafficking is the harm that may occur in the process migration. The singular attention on trafficking turns the attention away from the larger context of migration and distorts the broader picture of women’s movement. It also enables governments to focus their attention on the protection of an increasingly limited few, who are deemed to be “trafficked victims”. States and other stakeholders seem prepared to leave the sex industry and willing to press charges against their traffickers. In this way the trafficking framework is used in an exclusionary manner to deny assistance to all those trafficked persons who manage to escape a trafficking situation through their own means, and who do not comply with the conditions for securing assistance and support.
            To some extent anti-trafficking NGOs need to accept responsibility for the propagation of this image of the trafficked person as a victim. When faced with the problem of trying to attract government attention to anti-trafficking initiatives, NGOs may have resorted to this simplistic image to garner support for their activities. It is not abundantly clear that this victim-image does not capture the complexities of women’s own migratory experiences and agendas and that the image of the trafficked person needs to be conceptually reworked. For example, one conceptual move may be to shift away from the notion of a vulnerable subject to that the risk-taking subject.
            It needs to be recognized that migrants and trafficked persons, including those in prostitution exercise agency and demonstrate decision-making abilities, which seek to maximize their own as well as the survival of their families. For example, many women negotiate the terms of their own movement and utilize technological network to plan their migration and keep in contact with those in their country of origin. Women’s perceptions of themselves and of their ‘exploiters’ provide a further challenge to the traditional and stereotypical images of victim and perpetrator. For example while the dominant image of women in the sex industry is that of subjugated dominated objectified and abused persons who are preyed upon by conniving men, but studies of women in the sex tourism industry in various countries reveal that women view it as an arena of negotiations to improve their own economic situation. 
            In tandem with the propagation of female ‘ victim-hood,’ the trafficking agenda has come to be increasingly influenced by a conservative sexual morality that has gripped some nation states. Women have been cast in terms of modesty, chastity and innocence. Women are also seen as the hallmark of the cultural and social fabric of society such that challenges to ‘traditional’ gender constructions are seen as posing a dual threat- to women and to the security of society. The first threat forms the basis for a protectionist approach towards women. Within the protectionist agenda, no distinction is drawn between consensual and coerced movement resulting in the treatment of all movement of women as coerced and reinforcing assumptions of third world women as victims, infantile and incapable of decision-making.
            The combination of sexual conservatism and the construction of a woman as the symbol of national and cultural authenticity are seen to lead to the stigmatism and ostracism of a migrant woman who is portrayed as an aberrant female.
            If the dominant anti-trafficking approach has blurred the portrayal of the female migrant, then one way to counteract this is to view migration within the broader context of global reality of the transnational female migrant. Migration must take its rightful place within the context of globalisation. If the flow of capital and goods encounters no borders. Why should the human participants of globalisation be treated any differently? If a juridicial person can be granted a transnational/multinational identity. Which enables the crossing of borders largely unimpeded why is it that a natural person is being denied her identity as a global citizen? These questions must be brought to the forefront of the debate and thoroughly examined. 

Notes

Boundaries, Borders and Bodies
by Hameeda Hossain (*Founder member of Ain O Salish Kendra (ASK))

            Thank you for inviting me to your Winter Course. I always welcome an opportunity to visit Kolkotta. It is a friendly city because it seems to welcomes outsiders, or at least doesn’t point a curious finger at them.  People don’t ask where you are from; they allow you to become absorbed in the city on your own terms, without having to prove your identity. 
            I have been told that in the last fifteen days you have been studying issues relating to migration and displacement. I presume therefore that you are familiar with the complex nuances of movements across geographical divides, cultural divides and political divides -- as you may well be with changing patterns of migration. 
            I was asked to speak on “forced migration and trafficking” terms which have now become major international law concerns. Recent debates in international agencies have sensationalized migration by linking it to trafficking in arms and drug smuggling and terrorism, to AIDS/HIV.  The migrant, whose labour has served to build the wealth of other countries, has been reduced to a carrier of crimes and disease. 
            The use of the word “forced” is, of course, susceptible to many complex nuances of interpretation, that serve different interests or reflect different perspectives. It is indeed a contentious issue between countries of origin and destination, and government responses have been both contradictory and hypocritical. While countries of origin welcome foreign remittances from workers, they do little to facilitate their terms and conditions of employment. In receiving countries, much of the infrastructural development in cities and much of the service sector owes to the labour of migrants. Dubai or Kuala Lumpur would not have been architectural show cases without the contribution of engineers, contractors and workers from South Asian countries.  The concerns of governments are more than regulatory; they seek to control borders, and to restrict movements across boundaries. Many governments have been prompted to seal borders, to reinforce border controls or other restrictions on people’s movements.   Across land borders, the push back techniques have kept people in a de-nationalised limbo. The more powerful countries such as the US have gone to the extent of using trade sanctions against the country of origin. At the same time the US has tempted migration through the sale of lotteries.
            On the other hand, for ordinary citizens, freedom of movement is a choice for survival.  Migration can be forced by political and economic circumstances in the country of origin, but administrative controls in the country of destination also force migrants into exploitative relations.  People move unwillingly from their own habitats, and may often be compelled by conflicts and wars, by oppression and violence, by discrimination and poverty. While migration may be seen as a strategy for survival by families or an escape route for individuals, or even as presenting new opportunities,  the human rights of migrants and their security fall at risk from state controls, exploitation of the market and social exclusion. 
            In my talk today I would like to focus on how borders and boundaries are used as controls over bodies.   

Political Causes of Migration  

            Let us look at what propels people in South Asia to move from their habitats, and how States have accommodated these movements. South Asia represents diverse languages and cultures, which have been formed historically by the entry of traders, warriors or even religious mendicants. Its boundaries have been cast and recast to cut across identities of family, clan and ethnicity. A further typography of migration suggests that in the last century movements have resulted from conflicts – communal or ethnic violence, in which families were divided and sub-divided.  Conflicts or political oppression have led to refugees seeking political asylum and a safe shelter.  South Asia has witnessed massive movements of population across newly created borders. In 1947 and 1971 people were compelled to flee on account of religious riots or military violence. Later, as states have continued to exist in a state of suspended animosity, minorities faced with political intimidation, legal discrimination or social exclusion, have had to flee their homes.  Demographic changes have divided families and communities, and these divisions have induced waves of movements across borders. Recognition to political “migrants’ was given by the Nehru Pact in 1952 and the Simla Pact in 1974.  The first recognized the status of refugees following partition, and the second approved the transfer of Pakistani citizens from Bangladesh to Pakistan after the war of liberation.  

In Search of Freedoms 

            We have also known of cases of individuals escaping from repressive regimes – particularly writers, reporters, intellectuals, political activists.   They too have been forced to move.  A famous scientist had to leave Pakistan because he was an Ahmadiya, a religious sect whose citizenship rights were taken away by the State. Fortunately he found sanctuary in a leading institution in Trieste and could contribute to scientific knowledge.  Poets and writers have had to leave Bangladesh and India, under social censure or administrative oppression.  The loss has been that of the host country.  

Economic Migration 

            In recent years, patterns of global migration have shifted significantly, and economic necessity has become a prime cause.  Globalization has contributed to a phenomenal number of people seeking livelihoods across borders.  Migratory flows are an outcome of sharpening imbalances within countries and between countries, and they pursue global capital. While states are entitled to regulate their borders,  it is important to realize that demand in growth led societies will inevitably induce the movement of supply from stagnant economies or resource poor countries.  New conceptual categories have been attached to migration: contract or temporary migration, long term settlement migration, documented or regular migration, and irregular or undocumented migration. Forced migration or trafficking implies use of force or fraud that is used to deceive men, women and children into moving away from a familiar habitat.  
            Each process involves an element of force and compulsion, each is susceptible to a degree of victimization. Even though demand acts as a pull factor, these movements are susceptible to controls that enmesh them in circles of insecurity, deny their right to livelihood, to cultural identity and to bodily integrity.  
            The new world they enter is not hospitable. Documented workers from Bangladesh have been ghettoized into low paid work in many countries of the Middle East and South East Asia. Even when they have entered legally they are subject to numerous forms of exploitation by their employers and law enforcement agencies. While states are entitled to regulate borders they cannot be totally oblivious of their obligations to the rights to life and liberty.  Yet, countries of origin have so far been unable to protect their own citizens, and the bilateral treaties they have signed with labour importing countries have sadly omitted any guarantees for workers.  Thus the worker loses his/her rights of stay.
            For an example of this let us look at the boom period in Malaysia’s development in the nineties. Cases were reported, in the media, of workers of Indonesian and Bangladeshi origin, who were kept forcibly in detention centres. Tanaganita, a Malaysian human rights organization published an investigative report on the use of torture and other human rights abuses in detention centres.  Evidence from workers showed that they had been made “illegal” by commercial practices that were intended to control their labour. For example, it was a common practice for employers to retain workers’ passports, which curtailed their freedom of movement. If they dared to venture out they were arrested by the police, because they had no papers on them, which was a requirement of the law.  The end result was that that they found themselves in detention or were returned summarily to their home country without their savings, salaries or compensation for loss of jobs.  
            Women, currently make up about one half of the world’s current migrant population.  It is only in recent years that a growing number of women from Bangladesh have taken overseas jobs.  The demand has come mainly from the Middle East. But the conditions of work have not been particularly salutary and Bangladeshi embassies have had to cope with many complaints from women workers.  Rather than negotiate on behalf of the workers the government saw fit, in 1997, to ban the overseas employment of women for domestic work. This restriction was lifted subsequently, but women’s decisions to work overseas were subordinated to family approval, etc.  
            Last year the government itself decided to recruit women from the ranks of Ansars (or village police) for employment as domestic workers in the Middle East. But their experiences of exploitation and even violence has again brought to surface the contradictions between state policies that promote migration as a means for absorbing surplus labour and earning foreign exchange but without ensuring security to their citizens. Many of the Ansar women complained of sexual harassment and assaults, and the government response was to bring them back home without registering any complaints.   They came back home without their salaries, but this did not stop others from seeking work outside.  Some moved through legal channels, enduring loans for the high cost of overseas employment. Others passed through invisible paths, which emphasized the insecurities that induced women to move into vulnerable work situations.  There is sufficient evidence to show that bans are not likely to be absolutely effective and the result of any prohibitive policy has encouraged movements to be illegalised. The costs for migrants becomes even higher. 
            Bangladesh is a signatory to the UN Convention on the Rights of Migrants and their Families, but the Convention itself is without teeth since none of the receiving countries has agreed to its ratification.  Bilateral agreements with Malaysia, Saudi Arabia and other states have generally been limited to numbers and period of stay of workers, but not to ensure protection of workers. State policies and other institutional arrangements seem inadequate to ensure their security during their stay overseas.  In a large number of cases, private traders have made overseas employment a profitable business at the cost of workers.  Even where migration takes place willingly, force and compulsion often determine conditions of stay and employment. The power of capital has been superimposed on the rights of migrant workers. 
            Under bilateral treaties migrants find little protection, as they are subject to the laws of the receiving country.  Emigration from Bangladesh is governed by the 1982 Emigration Ordinance. The latter deals with  the process of recruitment, licensing of recruiting agents, emigration procedures, minimum standards for wages and service condition, charges for recruitment, malpractice, enforcement machinery etc.  None of these address violations of rights that may take place in receiving countries nor have they protected the right to freedom of movement. Successive governments in Bangladesh have tried to circumvent these rights by banning their employment overseas or demanding guardian approval. In other words, women migrants are treated as dependents. Restrictions and bans on their employment without the capacity for implementation have resulted in undocumented flows of women workers.  The Ministry of Labour and Employment has held consultations for formulations of a policy but this has not yet been approved or submitted to Parliament. 

The Regime for Trafficking in South Asia 

            Movements within South Asia are even more problematic.  Even though borders have historically been flexible and open, boundaries have been cast and recast to cut across identities of family, clan and ethnicity. Given the intimate kinship connections that transcend boundaries, South Asian states could have facilitated travel within the region.  But inter-state relations are steeped in protectionism, so that tourist visas are difficult to obtain and work permits are non-existent.  The conventional response of states in South Asia has been to guard its borders and criminalize movements under the Foreigners’ Act.  There has been little legislative intervention on behalf of the victim of migration, whether the act was voluntary or forced.  
            Border movements within South Asia deny individuals the right to livelihood, to cultural identity and to bodily integrity. This is what makes them vulnerable to a trade in bodies, sometimes to expulsion, and often to exploitation.  A migrant, whether documented or undocumented, seeks a space for survival in an unfriendly environment. Often people crossing borders are not even aware of their trespass across borderlines.  
            Migration from Bangladesh to West Bengal and other parts of India has been prompted by a wide range of reasons.  The war of independence inspired a large-scale migration.  Fear and intimidation have often led to a quiet exchange of minorities along borders and across borders.  The search for livelihood has been compelling factor. Women have also seen in this an escape from oppressive relations in marriage or to escape social stigmas in their own village.  Seasonal migration for work or trade has become a regular practice along some borderlines. 

Circles of Insecurity 

            When migrants move from citizenship without freedom or choice to residence without citizenship they pass through such circles of insecurity. They do so by taking risks of social isolation, accepting unknown terms of employment or trusting agents.  
            There are many anecdotal examples to illustrate this journey from one circle of insecurity to another.  From oral histories of women victims of trafficking we know that they left their homes when economic deprivation, social discrimination and violence made their lives intolerable. In many cases they were tempted by offers of marriage or paid work by a family member or a friend. Or the move became a family’s strategy for survival.  Social factors that reinforce gender hierarchies, such as inequality in marriage rights, dowry demands, polygamous marriages, domestic violence were common reasons for leaving their villages.  A study of several border villages in Rajshahi found that young girls were lured with promises of marriage, but found themselves as bonded labour in glass factories in Uttar Pradesh in India.
            There are also stories of women from Bangladesh engaged in sex work in Sonagachi and Kolkotta. While their conditions are known to be oppressive, some of them at least were able to invest their savings in real estate in their hometowns and move back into anonymity. They thus evaded both official controls and social stigmas.
            Demand for seasonal labour provides an incentive for temporary movements. Case studies have documented how young women and children move across the river from Rajshahi to Maldah to harvest beetle nuts or wheat in the chars or marshlands of West Bengal.  Their daily movements are visible to the naked eye, and most of them are not hindered from working. Their labour is organized by informal agents. When some of them don’t return home, it is assumed that they were egged on by promises of work or marriage further west.  
            But the rationale of the market is not evident to state forces and the policing of borders makes them into sources of extortion or oppression.  For example,  you must all have heard about the snake charmers or bedays, who, two years ago, were pushed back and forth into No Man’s Land by border police on both sides, without a care  for their physical survival.  The bedays are  a gypsy community in Bangladesh, and they live and travel in boats. In certain seasons they travel over land and cross the border into India where fairs and melas offer a  demand for their medication or other skills. The border guards who have strict orders to  preserve the inviolability of national borders, allow for no in between arrangements.  In South Asia we have not come to accept the particular gypsy culture as in Europe, where the Romanis are free to move from one country to another, they have even earned the right to vote. In South Asia,  the bedays, snake charmers by profession  and boat people by habitat can do neither one nor the other.  Oblivious of this  they seek customers on both sides of the border.  The BSF commanders had as little  compassion in pushing back the bedays into Bangladesh as the BDR commanders in keeping them out. This happened two or three years ago, when a few Beday families found themselves suspended in No Man’s Land, with no water and no food, until some private organization came to their help and international publicity made it possible for them to go back to their village.  
            Movements across Bangladesh’s land borders have inspired the creation of numerous services on both sides of the border.  Guides, rest houses, moneychangers have become profitable businesses and sources of extortion.  In addition borders and boundaries stimulate corruption of border guards or local officials.  Hostility of local residents is a source of isolation.  Discovery does not lead to their protection but rather to more trials of repatriation, rejection by their families and community, and alienation.  Inspite of these obstructions, for people living in poverty, migration is often equated with the pursuit of a mythical golden deer. 

Pressure from The Women’s Movements for Human Rights Standards 

            Since the eighties diverse women’s movements have drawn upon their experiences of gendered violence to identify the implications of undocumented migration and trafficking for human rights of women.  One of the outcomes has been a near universal acceptance of the Palermo Protocol[i] which redefined concepts of trafficking as forcible or coercive movements, and as a denial of freedom and choice.  The definition delinked the act of trafficking from prostitution.  This new approach has of course sparked off a debate within the women’s movements between the concept that links trafficking to prostitution and criminalizes all forms of sex work as forced, and the other concept of distinguishing between the exploitation of trafficking from the exploitation implicit in sex work.  It is now acknowledged that trafficking itself leads to different kinds of oppression not only in prostitution or sex work. 

International Law Concerns 

            In raising these debates women have campaigned for policies that address the root causes of why women, children and men are lured into trafficking and migration – such as economic poverty, political oppression and family violence.  They have succeeded in transferring the focus of international law on the mode of movement, criminalizing the use of force and accepting the need to create conditions that prevent trafficking and protect the victims of trafficking. 
            In the international arena human trafficking has moved from the margins to the mainstream of international political discourse. Human rights are recognized as central to the causes and vulnerability factors that contribute to trafficking. Responses from regional and international institutions have shown a better understanding of the phenomenon. Thus the 1949 Convention on Suppression of Trafficking for prostitution found it “incompatible with human dignity and a threat to the welfare of the individual, family and community.”
            Article 6 of CEDAW gave a broad direction to “suppress all forms of trafficking in exploitation of the prostitution of women.”  It thus did not depart from the conventional link between trafficking and prostitution and its application was left vague.  While the Treaty did not allude specifically to violence against women,  the General Recommendation of 1992 argued that Article 1 of CEDAW included gender based violence which made specific reference to trafficking as a form of violence. 
            The Declaration on Violence against Women (1993) which was adopted at Vienna (1993) and the Beijing Platform of Action (1995) took the demands of the women’s movements further by including all forms of gender based violence in the family, community and violence perpetrated by the State.  The appointment of the Special Rapporteur on Violence against Women led to her reports that clarified the concept of trafficking to the act of “force, fraud, deception in the movement of persons”.  The adoption of the supplementary to the Palermo Protocol, titled “Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2003)” aimed to prevent and combat trafficking in persons, particularly women and children; protect and assist the victims of trafficking, with respect for their human rights; and promote cooperation between state parties to meet these goals. This has considerably widened the scope of the issue of violence beyond its sexual connotations.  More recently the appointment of a UN Rapporteur on Trafficking has enlarged the scope for registering complaints and documenting the incidence of trafficking. 
These advances in the international arena thus have called upon states to :
1.       criminalise trafficking
2.       quickly and accurately identify victims of trafficking
3.       investigate and prosecute trafficking cases with due diligence
4.       provide victims with support and protection
5.       provide special protection for child victims
6.       cooperate internationally and regionally in preventing, investigating and prosecuting the perpetrator of trafficking. 
            Some of these international concerns have found their way into regional conventions such as in Europe.[ii] Within the South Asian region, the outcome of several years of debate has resulted in the “SAARC Convention on Combating Trafficking in Women and Children for Prostitution”.  Unfortunately the title and definition continue to link trafficking to prostitution, although experience has shown that women moving from one country to another are subjected to different forms of oppression, in different occupations – not always sexual –. However, its provisions for social care of victims mark an advance for rehabilitation of victims through job location, legal assistance and health care and to accord minimum standard humanitarian treatment to trafficked persons, consistent with human rights standards. 
            But SAARC member  states have made little progress in protocols and legislation to endorse these commitments into national legislation and move towards their implementation. The provision of repatriation is a problematic one since it does not necessarily take into account the choice of the victim. If she is discovered years after she left the country it is possible that she may not want to go back to her original home. But the Convention does not make allowance for a person’s option to stay on in the country of destination.  
            An experience of a legal aid organization in a case of repatriation demonstrated the difficulties of this condition. A married woman who had been kidnapped from Dhaka, was discovered in a shelter home in Karachi. When she expressed her wish to go back to her husband, efforts were made to locate him, and it was found that he had remarried.  Both husband and the wife in Karachi agreed that she should return back to her husband.  She found herself alienated after staying away for a few years in a foreign country, and repatriation brought its own sorrows of rehabilitation and adjustment.  It would have suited her best if she could have been given a work permit and allowed to travel back with confidence to her own country rather than as a dependent upon an unwilling husband. 
            Rescue operations also tend to leave women and children in protection homes or correction homes which confine inmates rather than become means of exit. The UN Rapporteur on Violence against Women found the conditions in corrective homes as barely habitable.[iii] Rehabilitation itself becomes temporary and the reforms intended do not  deal with rights. On the contrary they treat women as dependents in need of protection.   In most South Asian countries the judiciary too has taken a protectionist approach towards trafficking, confining women to protection of their guardians or a public shelter. 
            Activism by several women’s groups in each country and their networking across borders has helped in the rescue and repatriation of women victims of trafficking to their home country but it is not certain whether their rehabilitation and reintegration has been in deference to women’s rights and choice.  

National Regimes for Trafficking 

            National regimes on people’s movements have been punitive rather than protective. Even though the demand from global capital for low cost migrant labour is on the increase, controls have been reinforced at the cost of human rights.
            In South Asia, regulatory legislation such as the Foreigners’ Act has restricted entry. Penalties provided in Penal Codes drafted 200 years ago for kidnapping, abduction, slavery etc., seem outdated today. These laws have often been used for expulsion or even to obtain court orders. They have tended to act against the victim rather than to support her. Penal codes have provided penalties for kidnapping, abduction, slavery etc., but national policies have ignored the needs of the victims.  Human rights have therefore been absent in addressing the issue of forced migration and trafficking.
            Recent legislation has not been very progressive. It has tended to victimize the victim of trafficking and has deflected attention from the main concern with use of force or fraud implicit in the crime of trafficking. An Indian legal analyst has argued that the “Immoral Trafficking (Prevention) Act 1956 does little to tackle the principle concern with trafficking of persons into situations of exploitation”. It is also argued that limiting the definition of trafficking in persons only to the purpose of prostitution deflects from the violations inherent in the act of trafficking. Further conflating women and children as victims tends to digress from the specifics of the act. [iv]
            In Bangladesh too, legislation on Violence against Women and Children (1955) which has undergone several amendments in 2000 and 2003 has authorized capital punishment for traffickers, which according to legal experts makes convictions more difficult. [v] 
            In terms of policies and programs, governments in South Asia have set up a few shelters but they offer few facilities for women to opt out into independence.  Governments lack the capabilities and have relied upon NGOs and women’s organization to ensure humanitarian support to victims in rescuing, rehabilitation and reintegration of victims.   
            Punitive legislation in many European countries has been directed to controlling movements from East Europe. Perhaps Netherlands is the only country which offers some protection.  The US has adopted the Victims of Trafficking and Violence Protection Act of 2000 with adverse consequences for women’s rights. The act authorizes the suspension of non-humanitarian, non-trade related ssistance to any country that does not meet minimum standards for elimination of trafficking. The State Department Trafficking Investigation Report (TIP)[vi] judges countries according to the degree of their compliance with minimum standards prescribed by the US, rather than with humanitarian standards.  This Act has had adverse effects with governments rushing into enacting punitive laws, policies and law enforcement mechanisms, that may violate women’s rights.  While the enactment of harsh laws in countries such as India and Bangladesh may have raised them in the TIP list, the concern for human rights of trafficked persons has been overlooked.  

Conclusion

            How far does international law reach across to support women at the grassroots? The Adviser on Trafficking from the Office of the High Commissioner on Human Rights in Geneva underscored the need to acknowledge that trafficking is both a cause and consequence of the violations of human rights, and that guiding principles of the Office of the High Commissioner for Human Rights place protection of human rights at the center of any measures taken to prevent trafficking. Special care has to be taken to ensure that anti-trafficking measures do not adversely affect the human rights and dignity of persons, and in particular the rights of those who have been trafficked or those who are vulnerable to trafficking. States thus have a responsibility to act with due diligence to prevent trafficking, investigate and prosecute trafficking and to assist and protect trafficked persons.”[vii]
            It is clear that grass roots experiences of women have influenced international awareness of the need to move beyond legal sanctions and legal punishments towards addressing the root causes that perpetuate gender discrimination, economic disparities and imbalances in power.  
            Effective mechanisms need to be introduced to monitor the impact of anti-trafficking laws, to provide meaningful  education and awareness, to widen employment opportunities, to make rescue, rehabilitation and reintegration sensitive to women’s concerns and to ensure that victims of trafficking are treated as victims of human rights abuses and not as irregular migrants. 
            National policies  therefore  need to focus on changes in social and economic relations, to support a woman’s rights so that she can make informed and independent choices. An imperative is that  such policies offer:
1.       viable livelihoods
2.       equality within the family and at the workplace
3.       recognition within the community
4.       education and facilities for personal advancement
            Human rights abuses in cross border trafficking within South Asia  can be minimised if movements are rationalized allowing for work permits and temporary stays, so that women’s work is not criminalized.  To attract global capital, countries are rushing in to proclaim their prosperity.  India is now projected in publicity posters as India Shining or Incredible India. This is also the case in Bangladesh, where Dhaka becomes more developed than the rest of the country.   It is inevitable that not all of India or all of Bangladesh will shine and the disparities will induce movements from “Suffering India” and “Suffering Bangladesh” to steal a bit of the shine for themselves.  This will inevitably lead to a trafficking trap.  A more balanced development for a gender and social just world may be the answer.  I leave it to you to consider whether we can take steps towards a more equitable development that will respect human rights and human security. 

Notes

The Dynamics of Refugee Protection and Humanitarian Assistance in Nigeria  
by Shambhavi V. Murthy Gopalkrishna (* Lecturer in the Department of Political Science, University of Lagos, Nigeria & is Founder of the Movement for African Refugees in Nigeria (MAREN))

How to Balance Rights and Responsibilities on Asylum at The EU's Solution Border of Italy and Libya  
by Rutvaca Andrijasevic (ESRC Postdoctoral Fellow, Centre on Migration, Policy and Society (COMPAS), University of Oxford)

Introduction  

            During the last year the temporary holding center for irregular migrants in Lampedusa, Italy’s southernmost island, has been repeatedly denounced for instances of procedural irregularities and alleged human rights violations. Lampedusa ‘temporary stay and assistance centre’ (CPTA) came to a larger public attention in the Fall of 2004 when Italian authorities expelled more than thousand undocumented migrants to Libya on military and civil airplanes. Numerous and consistent allegations of degrading treatment of third-country nationals in detention in the holding centre, the difficulty in gaining access to the asylum determination process and the large scale expulsions to Libya, brought Lampedusa to the attention of European and international institutions. The European Parliament (EP), the European Court of Human Rights (ECHR) and the United Nations’ Human Rights Committee (UNHRC) all called on Italy to respect asylum seekers and refugees’ right to international protection and to refrain from collective expulsions1 of asylum seekers and irregular migrants to Libya, a country that has no asylum system and has not a signed the Geneva Convention on Refugees.
            Positioned some two hundred kilometres south of Sicily and three hundred kilometres north of Libya, the island of Lampedusa became in 2004 the main point of arrival for boats carrying undocumented migrants and asylum seekers from Libya to Italy. A total of 10 497 migrants, 412 of whom were minors and 309 women, transited through the Lampedusa CPTA in 2004.2 Migrants commonly depart from Libya in overcrowded makeshift boats and undertake a perilous sea journey which can last up to several weeks. Once in the Italian waters near Lampdesa, the boats are intercepted by Italian border guards and migrants transferred to the Lampedusa holding centre. 
            After staying in the holding centre for a period that varies usually between five and forty-five days, the majority of migrants are transferred to CPTAs in Sicily or southern Italy and others are expelled to Libya. No official data is available on the countries of origin or reasons for migrating for migrants detained in the CPTA of Lampedusa. The UNHCR points to the presence of refugees and asylum seekers among those detained in the CPTA as well as among those expelled to Libya. The authorities of Lampedusa CPTA refer to all third-country nationals held in the centre as ‘illegal migrants’ and claim that there are nearly no asylum seekers present among migrants who depart from Libya. The authorities assert also that the majority of third-country nationals are economic migrants of Egyptian nationality.3 The data gathered in Lampedusa by the Italian NGO ARCI and the Médecins sans Frontières identify instead Middle East (Iraq and Palestine), Maghreb, Horn of Africa (including Sudan) and Sub-Saharan Africa as migrants’ regions of origin.4 More consistent data on migrants’ countries of origin and the nature of their journeys remain however unavailable in spite of the continuity of migratory flows from north Africa to the south of Italy since the end of the 1990s. 
            The CPTA in Lampedusa is one of eleven existing holding centres, most of which are located in the south of Italy. CPTAs are instruments for the detention of undocumented migrants pending expulsion and their function is to ensure effective functioning of expulsion procedures. Identified as complementary, detention and expulsion of undocumented migrants are crucial pillars of Italy’s politics towards irregular migration. In the effort to control undocumented migratory flows from Africa into its territory, Italy established a collaboration on illegal migration with Libya, its southern Mediterranean neighbour. Initially signed in 2000 as a general agreement to fight terrorism, organized crime and illegal migration, in 2003 and 2004 Italian-Libyan partnership extended to include a readmission agreement, training for Libyan police officers and border guards, and Italy-funded detention and repatriation programmes for irregular migrants in Libya. The aim of these schemes is to deter irregular migration and to prevent further migrants’ deaths at sea by combating smuggling networks. 
            This paper presents an overview of events and policies implemented in Lampedusa and Libya respectively and outlines the contentions surrounding these policies. Using the material provided by the Italian authorities, European institutions and the NGOs, the paper further examines the schemes developed by the Italian and Libyan Governments, the European Union and the International Organization for Migration (IOM) as main actors involved in implementing immigration-related programmes and polices in Lampedusa and Libya. A methodological note is necessary here. The data available on measures regarding detention and deportations of irregular migrants and asylum seekers in Lampedusa and Libya are often contradictory and incomplete. In the case of Lampedusa, scarce information provided by Italian authorities was lately supplemented by data gathered by the European Parliament, the NGOs and journalists. When it comes to Libya, the content of agreements, whether between the Italian and Libyan Governments or between the latter and the IOM, remain undisclosed. Hence, rather than offering an exhaustive description of legislative acts the first two sections of the paper make use of the legislative framework as a way of contextualizing the main procedures and policies carried out in Lampedusa and Libya. 
            Having examined, in the first two sections of the paper, the contentions surrounding Italy’s alleged violation of the right to asylum, the non-refoulment principle and the prohibition of collective expulsions, the following two sections bring into focus the data on migratory patterns into and from Libya that put into question a number of assumptions that inform Italian Government’s detention and deportation policies. The third section engages the images of emergency and mass-influx of undocumented migrants commonly summoned by the Governments and the media to portray migratory flows from Africa and show that these images produce an erroneous representation of contemporary Mediterranean migration and conceal Italy’s reluctance to assume its share of asylum responsibilities within the European Union (EU). 
            Italy’s policies of detention and deportation and Libya’s enhancement of border control in particular towards its Sub-Saharan neighbours are examined in section four in relation to their function in deterring irregular migration and combating smuggling networks. The analysis undertaken in this section suggests that these policies might yield paradoxical effects such as ‘illegalizing’ the movement of certain groups of migrants and increasing rather than decreasing the involvement of smuggling networks. 
            Italy’s implementation of policies and schemes that increase migrants’ and asylum seekers’ vulnerability and hamper the right of the latter group to access the asylum procedure raises the issue of the European Commission’s (EC) responsibility and the EU’s commitment to the protection of refugees. The return of undocumented migrants from the EU Member states and the collaboration with Libya on matters of irregular migration will soon be regulated by the EU Return Directive and the Libya-EU Joint Action Plan. These instruments set out to provide a minimum set of procedural and legal safeguards for the return, removal and custody of third-county nationals residing illegally in EU Member States and limit the EU’s involvement in the detention facilities in Libya to the provision of heath care and services rather than support of return schemes. The analysis in section five of the Return Directive and the Action Plan, as well as of the EC-funded IOM programmes in Libya raise the issue of whether or not the Commission is contracting out of its responsibilities over migration and asylum matters and whether the Return Directive and the Action Plan leave too large a space for the Member states to circumvent the EU framework and apply restrictive exceptions. 
            Since the EU return directive and the joint Action Plan are new instruments and still to be finalized, the last section of this paper outlines a number of policy recommendations that would strengthen the Commission’s credibility regarding its monitoring responsibility and the EU’s commitment to refugee protection. Given the current lack of safeguards and control mechanisms on return, and on EU cooperation with Libya, the recommendations point to the role of the European Parliament in promoting a credible and effective framework for the protection of asylum seekers. This paper recommends that transparency, accountability and legitimacy are key principles that should guide the European Union’s partnership with its neighbour states in the field of asylum, borders and immigration. 

Lampedusa Holding Centre 

            Detention and the right to asylum Lampedusa holding centre is located on the airport of Lampedusa next to the runway to which it has direct access.5 Surrounded by barbed wire and metal grilles, the centre is composed of four prefabricated containers designated to host 186 people.6 In the words of Italian officials the centre is a ‘temporary stay and assistance centre’ functioning as a ‘clearing station’ and an ‘initial assistance’ centre for undocumented migrants after they have disembarked on the island.7 Its function as a ‘clearing station’ consists in redirecting migrants and asylum seekers within the shortest necessary time to other CPTAs in Italy or returning them to the country of last transit, usually Libya. The ‘initial assistance’ stands for the emergency health care, clothing and food that undocumented migrants and asylum seekers are provided with during the period they are held in the CPTA awaiting transfer/removal. The CPTA is mainly active between April and October, when the weather conditions permit sea travel from Libya to the south of Italy. 
            As instruments for the detention of irregular migrants and asylum seekers, CPTAs were established under ‘Turco-Napoletano’ law with the purpose of administrative detention of third country nationals pending expulsion from Italy.8 Asylum seekers, as well as migrants who have been served an expulsion order, are detained in CPTAs if they present an asylum application after having received an expulsion or refusal of entry order and/or if their appeal is at the final stage and they are awaiting the court’s decision on the appeal. The maximum period of detention for both groups is sixty days.9 The CPTAs however do not cater primarily to asylum seekers. The so-called ‘Bossi-Fini’ law amended the detention regulations set by ‘Turco-Napoletano’ law and established ‘identification centres’ as specific centres for the detention of asylum seekers.10 While detention of asylum seekers cannot be carried out with the sole purpose of examining their application, it is nevertheless mandatory in cases when asylum seekers present their application after being arrested for entering or attempting to enter the country illegally, and/or residing in Italy in an irregular situation.11 An asylum seeker can be held in an identification centre for a maximum of 30 days.12 The Italian Government is currently in the process of establishing ‘polifunctional’ immigration centres to carry out administrative and juridical functions of both CPTAs and identification centres. 
            Throughout 2004 and 2005, the holding centre of Lampedusa was denounced for the lack of access to the asylum procedure. European NGOs13 have drawn attention to the failure of the centre’s authorities to provide information about the possibility of claiming asylum and to guarantee individual examination of asylum through in-depth interviews that assess asylum seeker’s individual circumstance. Migrants and asylum seekers, the NGOs remark, have no effective access to an interpreter, are often identified by staff not qualified as interpreters14 by the use of improvised identification procedures in which the migrant’s nationality is determined on the basis of their skin colour and facial characteristics.15 Since migrants and asylum seekers are deprived of the freedom of movement, are allocated phone-cards only on a sporadic basis, and whose lawyers reside in Sicily, some 200km north of Lampedusa, the NGOs have argued that migrants have no effective access to legal aid.16 The lack of proper interpretation and legal services, the difficulty experienced by MPs, UNHCR17 and NGOs in obtaining the permission to access the CPTA,18 and the withdrawal of information explaining the reasons for detention, leave migrants and asylum seekers with little possibility to defend themselves and/or appeal. The difficulty of accessing the asylum procedure puts asylum seekers in a legally extremely vulnerable position since they can be served the refusal of entry order. This in turn constitutes the legal basis for their expulsion from Italy or for subsequent detention in a CPTA, as they have already received a refusal of entry order prior to presenting their asylum application. Lack of in-depth individual assessment, serving of refusal orders to potential asylum seekers and their subsequent collective expulsion to Libya are reasons which had NGOs to argue that Italy is in breach of the Geneva Convention’s non-refoulement principle. 
            The NGOs also gathered evidence of the arbitrary detention and degrading treatment of third country nationals in the Lampedusa centre. ARCI, an Italian NGO that between June and October 2005 undertook independent monitoring on Lampedusa maintains that a very small number of migrants and asylum seekers are served an expulsion or refusal of entry order. This puts into question the legal basis of detention since migrants and asylum seekers are nevertheless detained in the CPTA for a period between 25 and 45/50 days awaiting their transfer to another CPTA or removal to Libya (ARCI 2005).19 The amount of time that migrants and asylum seekers spend in the CPTA of Lampedusa is not officially recorded as detention meaning that, once they have been moved to another CPTA, migrants and asylum seekers can still be detained for the maximum period allowed. Minors and pregnant women are held, as ARCI reports, with male adults and no special assistance is provided to them.20 The centre is permanently overcrowded21 and the detention conditions degrading: there is for example, no access to the proper health assistance22 and the hygienic conditions are substandard.23 In addition to the denunciation of the use of force during the removal operations, recent journalistic sources have also disclosed the abuse of migrants while in detention by law enforcement officers.24 These removals are often carried out by use of force, especially when migrants are reluctant to board the plane and attempt to run away, and by coercive methods such as the use of plastic handcuffs.25 
            On the basis of gathered data ten European NGOs have taken legal actions against the Italian Government, filed a complaint with the European Commission26 and called the Commission to sanction Italy for: Violation of the right of defence and of all parties to be heard27 and hence the right to asylum as recognised by the Amsterdam Treaty Violation of the prohibition of torture and inhuman or degrading treatment, provided for in article 4 of the European Charter of fundamental rights and article 3 of the European Convention for the protection of human rights and fundamental freedoms28 In the complaint of the 20 January 2005 as well as in successive open letters to the Council and the Commission,29 Amnesty International urged the Commission to publicly distance itself from the actions of the Italian authorities and to carry out an independent investigation regarding Italy’s compliance with international legal obligations as part of the EU acquis.30 
            Italian authorities confirm the NGOs’ data on the 350-400 daily average presence in the Lampedusa CPTA, the case of overcrowding of up to 1000 people during the summer months and the presence in the CPTA of women and minors. Their position diverges though on other points raised by NGOs. Even though there are cases when the third-country nationals are detained up to 60 days, the Italian authorities maintain that in most cases migrants’ stay at the CPTA does not exceed four to five days. They state that the majority of detained migrants are Egyptian nationals and that nationality is determined on the basis of their physical characteristics and accent, as well as by a short individual interview, to which everyone is entitled. As explained by the Italian authorities, if migrants do not come forward to request asylum they are immediately repatriated to Libya or to their country of origin.31 Those who however do request asylum are moved to the Crotone CPTA, on the Italian mainland. The authorities state also that the majority of third-country nationals arriving from Libya are not asylum seekers but rather economic migrants. 
            Despite the denial by the Italian government that human rights violations take place in Lampedusa holding centre,32 the United Nations’ Human Rights Committee expressed concern about the conditions of detention and procedures in Lampedusa CPTA, calling on Italy to keep the Committee closely informed about the ongoing administrative and judicial inquiries on matters of detention conditions, procedural irregularities and collective deportations to Libya.33 Given the seriousness of the numerous allegations raised by NGOs, a delegation of twelve MEPs, part of the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs (LIBE) of the European Parliament, arrived to the island of Lampedusa on 15th and 16th September 2005 in order to assess the identification and removal procedures, the treatment of the detainees and the running of the CPTA. This visit was preceded by the EP’s Resolution on Lampedusa in April of the same year, in which the EP called on Italy to guarantee the individual examination of the requests for asylum and grant UNHCR free access to the Lampedusa CPTA. As for the European NGOs, the EP called on the European Commission to ensure that the Member States comply with their obligations under the EU law and that the right of asylum is respected in the EU.34  

Libya and The Case of Collective Expulsions  

            Between October 2004 and March 2005, Italian authorities returned more than 1500 irregular migrants and asylum seekers to Libya from Lampedusa holding centre. The biggest operation took place between the 1st and 7th of October 2004, four days before the EU lifted its eight-year-long arms embargo on Libya on 11th October 2004. During those six days, a total of 1153 irregular migrants and asylum seekers were expelled to Libya. The operations continued throughout Spring and Summer with expulsions of another 494 people in March, 150 in May, 45 in June and 65 in August 2005. No information is available concerning the whereabouts of migrants and asylum seekers expelled to Libya.35 Human Rights Watch believes that the majority has been detained in Libyan detention camps.36 
            The expulsions from the Lampedusa CPTA to Libya are part of Italian-Libyan collaboration on matters of irregular migration regulated though a bilateral agreement signed in Tripoli in August 2004. While the content of the agreement is still undisclosed despite solicitations from the European Parliament, UN Human Rights Committee and various European NGOs, the EP believes that the agreement requires Libyan authorities to supervise irregular migration within and into its territory and commits them to readmit migrants returned by Italy.37 Next to the bilateral agreement signed in 2004, Italy and Libya also signed in 2000 in Rome an agreement to fight terrorism, organized crime, drugs traffic and illegal migration. In September 2002 in Tripoli an operational agreement also led in July 2003 to the establishment of a permanent liaison on organized crime and illegal migration between Italian police officers and Libyan Security General Directorate.38 The collaboration between Italy and Libya extends beyond expulsions from Lampedusa holding centre and includes the construction of detention centres and the development of return schemes in Libya. In 2003 Italy financed the construction of a camp for illegal migrants in the north of the country (Gharyan) close to Tripoli. For the 2004-2005 period Italy allocated funds for the realization of two more camps: one in the city of Kufra located in the south-east close to the border with Egypt and Sudan, and the other in city of Sebha in the south-west of Libya.39 In 2003 and 2004 Italy also financed a programme of charter flights for the repatriation of irregular migrants from Libya. A total of 5688 migrants were repatriated on 47 charter flights to Egypt, Ghana and Nigeria as main destinations.40 
            Future detention and expulsion schemes are being developed in collaboration with IOM, a key partner for both Italian and Libyan governments.41 Italy was scheduled to fund an IOM pilot project in Libya starting in August 2005.42 As far as Libya is concerned, following the agreement signed on the 9th August 2005 for opening of an IOM office in Tripoli,43 IOM and Libya defined a programme of activities with the 37 EP, P6_TA(2005)0138. Moreover, journalistic sources specify that the agreement requires Libya to increase control over its borders in the Saharan region. See Gatti, F., ibid., 2005b. aim of supporting the Libyan Government to counter illegal migration and develop a long-term migration management approach. Under the Programme for the Enhancement of Transit and Irregular Migration Management (TRIM), IOM will be responsible for: The focus of the session was on border and migration management and on assisted voluntary return for irregular migrants in Libya. IOM, Dialogue 5+5. Newsletter, n. 1 issue, 2004. 
.. Labour selection programmes for migrant workers in order to supply Libya’s labour demand; 
.. Information campaigns to warn potential migrants about the dangers of irregular migration; 
.. Improvement of services (such as heath care) and conditions of detention for irregular migrants in detention centres in Libya; 
.. Development of an Assisted Voluntary Return Programme (AVR) and Reinsertion programme aiming to return irregular migrants in Libya to their countries of origin; 
.. Strengthening of cooperation on irregular migration between origin and destination countries.44 
            NGOs claim that the signing of the bilateral agreement between Libya and Italy in August 2004 led to widespread arrests in Libya of individuals from sub-Saharan Africa,45 and that 106 migrants lost their lives during subsequent repatriations from Libya to Niger.46 NGOs point out that due to the improvised identification practices in Lampedusa CPTA migrants and asylum seekers are at risk of being expelled to a country with which they have no relationship. The improvised identification of large numbers of migrants as Egyptians, NGOs claim, is at the base of forced collective removals of migrants first to Libya and later to Egypt with whom Libya collaborates in matters of illegal migration.47 The NGOs and activists have hence pressured air carriers to refuse to expel migrants from the Lampedusa holding centre to Libya.48 
            Evidence gathered by Amnesty International (AI) points further to the risk that removed asylum seekers and irregular migrants face in Libya. As AI documented, the Libyan State practices incommunicado detention of suspected political opponents, migrants and possible asylum seekers, torture while in detention, unfair trials leading to long-term prison sentences or the death penalty, and ‘disappearance’ and death of political prisoners in custody. Migrants and asylum seekers in particular are often victims of arbitrary detentions, inexistent or unfair trials, killings, and disappearances and torture in the detention camps.49 Once migrants and asylum seekers are detained in Libya there is virtually no way for NGOs to assist them or verify the conditions of detention and the relative expulsion procedure. The Libyan detention centres are in fact almost inaccessible to international organizations or human rights groups and UNHCR is unable to access people returned from Lampedusa to Libya since it cannot operate its protection mandate in Libya. 
            In light of gathered data on current removal practices, a coalition of 13 European NGOs50 proposed to the Member States and the EU a number of core principles to be applied during the repatriations in order to ensure that the policies fully respect the needs and dignity of individuals.51 In the complaint filed with the European Commission concerning the expulsions from Lampedusa holding centre to Libya, the NGOs called onto the Commission to sanction Italy for: 
.. Violation of the prohibition of collective expulsions provided for in article 4 of the 4th Protocol of the European Charter of Human Rights (ECHR) and fundamental freedoms, and article II-19-1 of the Charter of Fundamental Rights and article 13 of the International Covenant on Civil and Political Rights 
.. Violation of the non-refoulement principle52 prescribed in article 33 of the 1951 Geneva Convention on Refugees and Article 3 of the Convention against Torture53 
            Italian authorities have responded to the allegations of collective expulsions by invoking article 10 of Law 189/2002 and in particular the procedures regarding the refusal of entry (respingimento alla frontiera). The authorities claim that removals from the Lampedusa CPTA are not expulsions but rather refusals of entry on individual basis. An expulsion needs to be decided by the judge and prohibits entry into Italy for ten years while a refusal of entry is an administrative measure that does not ban the migrant from entering the Italian territory in the future.54 Irregular migrants reaching Lampedusa are hence served refusals of entry and returned to Libya as they have transited Libya prior to reaching Italy. Italian authorities insist that the refusals of entry take place on a case by case basis and that since the majority of migrants reaching Lampedusa are economic migrants rather than refugees, Italy is in no violation of the refoulement principle or in breach of the Geneva Convention.55 
            The Italian Government has explained its refusal to disclose the content of the bilateral agreement with Libya by saying that making the agreement public would diminish the success of countering smuggling and trafficking networks responsible for organizing and profiting from irregular migration from Libya into Italy. In its observations on Italy during its 85th Session in Geneva in November 200556, the UN Human Rights Committee, raised the issue of the right to international protection and recalled the right of each person not to be expelled to a country where he/she might face torture or ill-treatment. Along similar lines, in its Resolution on Lampedusa the European Parliament called on Italy to refrain from collective expulsions to Libya and took the view that these expulsions constitute a violation of the principle of non-refoulement. EP also called on Libya to allow access to international observers, halt the expulsions and arbitrary arrests of migrants, ratify the Geneva Convention and recognize the mandate of the UNHCR. 
            Misrepresentation of migratory flows to Italy The Italian Government considers the detentions in the Lampedusa CPTA and the successive expulsions to Libya to be indispensable measures for countering the emergency caused by the mass-influx of people from Libya and deterring ‘a million illegal migrants’ from waiting on Libyan shores and crossing over to Italy.57 At a first glance, the image of ‘a million illegal migrants’ might express the Italian State’s difficulty in managing large-scale migration from the South. The expression, however, merits a more serious consideration because it brings together a number of misconceptions that inform Italy’s migratory policies: it inflates the numbers so as to produce the imagery of invasion, assumes that the entries via the Italian southern border constitute the majority of Italy’s undocumented migrants and conveys the image that the bulk of migratory flows in and through Libya is of clandestine nature and geared towards Europe. 
            As for the migration from Eastern Europe during the 1990s –to which the scholars now refer as ‘the invasion that never took place’58— so for the current migration to Italy via Libya. The reference to the magnitude of migratory flows invokes the fantasy of invasion from the South. The existing data offer however a different image of migratory flows towards Italy. The recent report from the Italian Ministry of Internal Affairs indicates that the majority of third country nationals residing illegally in the country have reached Italy neither via sea nor having crossed its borders undocumented. They have on the contrary, entered the county at its land borders with a valid entry clearance and have become undocumented either once their visa expired or after they overstayed their permit of residence. According to the same source, only 10% of undocumented migrants currently residing in Italy entered the country ‘illegally’ via its sea borders.59 
            The arrival of circa 10500 migrants and asylum seekers to the island of Lampedusa in 2004 certainly represents a heavy load for a small island of 20km² with a population of 5500. Yet, if we exaggerate the numbers and assume for analytical purposes only that all of 10500 migrants are asylum seekers, this would certainly provoke a sharp increase in numbers of asylum seekers and refugees in Italy from 901960 to more than its double. What might appear at a first glance as a worrisome perspective needs to be viewed in proportion to the national population size. The 9019 applications filed in 2004 translate roughly to Italy receiving 16 asylum seekers per 100,000 inhabitants.61 Even if doubled, the total number of requests for asylum in Italy would be of 34 per 100,000 and hence still remain below the EU average of 60 asylum seekers per 100,000 inhabitants.62 While this increase is a hypothetical one, it is nevertheless useful as to illustrate the gap between asylum trends in Italy and other EU countries and to point to Italy’s reluctance in taking on its share of asylum responsibilities within the EU. 
            An example of this reluctance is the earlier discussed fact that the Italian authorities maintain that migrants arriving from Libya to Lampedusa are economic migrants rather than asylum seekers and refer to all of them as illegal migrants. Since the Libyan government does not recognize the category of asylum seekers and since the authorities of Lampedusa CPTA allegedly fail to investigate migrants’ nationality and classify the majority as Egyptians, there is no record which would permit a systematic identification of migrants’ countries of origin. If such a record was available, it would indicate that refugees are indeed part of migratory flows that transit Libya. This can be seen clearly in the case of Malta where the majority of new arrivals in 2004 were from the conflict affected countries of Eritrea, Ivory Coast, Sudan and Somalia.63 Libya’s migratory reality is far from being, as suggested by the image of ‘a million illegal migrants’ on Libyan shores, a country of emigration or a transit route for clandestine migrants from Sub-Saharan Africa to Italy. On the contrary, Libya is in first place a destination country and the major country of immigration in the Maghreb. Foreign nationals constitute approximately 25 to 30% of Libya’s total population. Large-scale economic and social development schemes in the 1970s, launched thanks to the revenues from the petroleum industry, relied in the first instance on migrant labourers from Egypt. Egyptian nationals, employed mainly in the agriculture industry and education, constitute today the largest migrant group in Libya.64 Libya is home also to a large Maghrebi community (Morocco, Tunis and Alger) 65 and the country’s economic development relies on the cheap and seasonal labour from the neighbouring countries of Niger, Chad and Sudan.66 Since the 1990s, labour migrants from neighbouring African countries have been a key factor in Libya’s economic growth. 
            The influx of migrant workers from sub-Saharan states is prompted by Libya’s reorientation from pan-Arab to pro-African policy67 and its active role in the foundation of the Community of Sahel-Saharan states (CEN-SAD) which, as an economic project grounded in the free circulation of people and goods between its member states, is oriented towards regional cooperation and integration.68 Migrant workers from Sudan, Chad and Niger are generally present in the Libyan Saharan.  These labour migrations, facilitated by the open border policy towards sub-Saharan Africa are of temporary and pendular character rather than, as commonly assumed, the source of irregular migratory movement to Europe.69 
            Inflating the numbers relative to the migratory flows to Italy from Libya, as some politicians and mass-media have done, results in an erroneous and misleading representation of Libya’s migratory history and of the contemporary migration in the Mediterranean area. Images such as a ‘million illegal migrants’ produce and manipulate the fear of invasion through a distorted account of migratory patters in Libya and conceal Italy’s reluctance to admit asylum seekers and refugees to its territory and, atypically for an EU state, its failure to pass an organic law on the right to asylum that has been under discussion since the 2002.  

The Production of Illegal Migration  

            Much attention has been given to collective expulsion of third country nationals from Lampedusa CPTA to Libya in terms of the ‘externalisation’ of asylum. Externalisation stands for the propensity of several EU Member States to establish centres for processing asylum applications outside the EU’s external borders. In fact, the expulsions to Libya occurred in a highly charged political atmosphere surrounding the proposal to set up refugee processing centres in North Africa.70 Initially put forward by the UK and rejected during the 19-20 June 2003 Thessaloniki European Council, the proposal envisioned the establishment of ‘Regional Processing Areas’ (RPAs) and ‘Transit Processing Centres’ (TPCs) located outside the external borders of the EU.71 Under this proposal, promoted some months earlier by Denmark,72 RPAs were to be located in the zones of origin of refugees as a means of strengthening reception capacities close to the areas of crisis. On the other hand, the location of TPCs closer to EU borders was envisioned as centres where asylum seekers and refugees were to submit their asylum claims and await the result of their applications for asylum in the EU. France, Spain and Sweden rejected the proposal for refugee processing centres. Nevertheless, in October 2004, the month of the largest collective expulsions from Lampedusa CPTA to Libya, the informal EU Justice and Home Affairs Council considered the implementation of five pilot projects with the aim of upgrading the existing detention facilities and developing asylum laws in North-West Africa. Proposed by the EC and co-funded by the Netherlands, the pilot projects targeted Algeria, Libya, Mauritania, Morocco and Tunisia.73 
            On the basis of this chronology of events, it is tempting to identify the collective expulsions from Lampedusa to Libya in terms of the externalisation of asylum. The fact that third-country nationals are precluded from presenting asylum claims, removed from Lampedusa to Libya and then most likely placed in the detention facilities financed by the Italian Government, might indeed seem to constitute the externalisation of asylum. The idea of externalisation presupposes however that asylum seekers and refugees are relocated to facilities where they are granted protection and where they can access the asylum determination procedure. Since the external processing centres do not yet exist and since Libya in practice has no refugee policy, Italy’s expulsion of third-country nationals to Libya constitutes a retraction of the right to asylum rather than its externalisation.74 As such, the policy of expulsions carries the risk of turning out to be counterproductive. Whereas the expulsions are carried out as a deterrent for undocumented migration, the obstacles to filing an asylum request are likely to increase irregular migration. In fact, those who would otherwise seek asylum might become irregular migrants due to the effective impossibility in accessing the asylum procedure.75 
            The deterrence of unwanted migration from Africa, the core element of Italian-Libyan cooperation on irregular migration, extends further to border guard training and the supply of devices and equipment requested by the Libyan authorities to achieve a better control of the country’s sea and land borders, in particular those with Sub-Saharan Africa.76 These measures are inter alia geared towards combating the smuggling of migrants and preventing further loss of lives at sea due to boats’ overcrowding and smugglers’ negligence. While well intended, the idea of strengthening border controls in order to prevent smuggling and trafficking in migrants can yield paradoxical consequences. Libya’s open border policy towards sub-Saharan Africa and in particular towards Chad, Niger and Sudan is a key point in the regional integration of Sahelian Africa. Following the EC’s technical mission to Libya, experts confirmed that many migrants from Chad, Niger and Sudan settled in the southern cities of the Libyan desert without intention to transit further to Europe.77 
            Strengthening the control at the border between Libya and its sub-Saharan African neighbours is likely to create obstacles to the free movement of people and illegalise the seasonal labour migration in the region.78 
            The case of the EU’s enlargement eastward showed that tightening of border and visa controls enhances migrants’ vulnerability and feeds into smuggling networks. As research on the demand for the labour of trafficked migrants’ has shown, if arranging a visa is not cheap and easy migrants will not be able to access (even when available) the formal governmental channels for migration.79 Instead, they will resort to irregular channels that in turn take advantage of migrants’ legal vulnerability, whether by charging higher costs for travel and documents or profiting from their labour at various points of the journey.80 Stricter immigration controls aimed at preventing trafficking do not necessarily protect migrants from abuse but might foster migrants’ vulnerability to violence during travel, increase the costs of ‘doing business’ for traffickers81 and leave ample space for third parties’ profiteering and abuse. The little data available from Libya confirms these findings. Following the signing of the bilateral agreement between Italy and Libya in August 2004, journalistic sources reported that Libyan authorities targeted sub-Saharan Africans with arrests, detentions and deportations.82 These allegations were confirmed by the EC’s technical mission to Libya during which experts verified that recent arrests and detentions were often of arbitrary nature and affected migrants from Niger, Ghana and Mali who have been working in Libya for more than a decade.83 The operations of repatriation, currently the main focus of Libyan authorities especially in the south of the country, are organized by the state or at times requested by migrants who prefer to pay for their own return rather than remain detained for an indeterminate period of time. Italian journalist Fabrizio Gatti who travelled with returnees on a lorry from Libya to Niger via the desert, reported that these returns expose migrants to various type of abuse. 
            These vary from financial profiteering (following the increase in arrests and expulsions third parties who organize travel have allegedly tripled the price of the journey out of Libya), theft (third parties steal migrants’ belongings and leave them in the desert), labour exploitation (migrants who run out of money during the journey get stuck in various settlements in the desert they their work under harsh conditions in exchange for food and shelter), and death (caused by overcrowding in lorries or lack of water).84 While more substantial figures on the impact of current immigration policies on migrants’ lives in Libya are still missing, the data gathered so far suggest that the measures geared towards curbing irregular migration are likely to increase migrants’ vulnerability and the involvement of third parties due to the rise in profit to be made from smuggling activities.85 
            The conditions of ‘illegality’ are however not produced only as a result of expulsions to or tightening of immigration control in Libya. While most of the attention so far has been paid to the implications of collective removals from Lampedusa to Libya, the fact that the majority of the irregular migrants and asylum seekers are transferred from Lampedusa CPTA to other Italian CPTAs went overlooked. This continuous detention follows the logic intrinsic to CPTAs’ constitution, namely that detention is indispensable to ensure an effective removal policy. The data that appeared in the report from Italy’s Audit Court undermine the argumentation that CPTAs are a key means for effective functioning of expulsions. The report shows in fact that out of 11883 irregular migrants detained in Italian CPTAs in 2004, less than half were deported while the rest escaped or were released after the expiration of the maximum detention period.86 Since the majority of migrants are actually released from the CPTAs after they have been served a removal order, scholars have suggested we view detention camps not as institutions geared towards deportations but rather as sites that on the one hand, function as a filter mechanism for the selective inclusion of certain groups of migrants and on the other, produce ‘illegality’ and hence the condition of ‘deportability’.87 This reasoning is of great relevance in particular for the asylum seekers transferred from Lampedusa CPTA to another Italian CPTA: asylum seekers’ detention becomes in fact mandatory only after they have been served a refusal of entry order in Lampedusa.88 Moreover, once released from a CPTA with the order to leave Italy, asylum seekers find themselves in an irregular situation: if they overstay the period of five days within which they must leave the country, they are susceptible to incarceration on the basis of having committed an offence by failing to observe the expulsion order.89 
            As research has shown in several instances, border controls, detentions and expulsion practices do not prevent people from moving from their countries of origin, nor from reaching Europe, but rather they raise the costs and dangers of migration. The alarmist portrayals that invoke the image of a massive influx of undocumented entries from Libya to Italy hinder a correct understanding of existing migratory patterns and the responsibility of the states in reducing legal channels of migration and impeding access to asylum so that in contemporary times illegality has become a structural characteristic of migratory flows.90  

Renounced Responsibilities: The EU Framework  

            As well as being matters for Italy’s national legislation and initiative, the return of illegal third-country nationals from Lampedusa holding centre and the collaboration with Libya on migration issues are also regulated by the EU framework. The EU Directive on Return and the Action Plan on Libya, both still to be finalized, are part of the agenda to establish a comprehensive Community policy on immigration and asylum. The EU Return Directive provides a minimum set of procedural and legal safeguards for third-county nationals residing illegally in EU Member States concerning their return, removal and custody.91 Once in force, by prioritising voluntary return over forced removal, by providing for a right to an effective judicial remedy with suspensive effect against return decisions and removal orders, and by limiting the use of temporary custody to the cases that present the risk of absconding, the Directive would legally oblige the authorities of the Lampedusa holding centre to revisit their removal practices in accordance with the standards set by the EU. 
            However, it is very likely that the Directive will not affect the situation and procedures in Lampedusa given the fact that the Lampedusa holding centre has a special status, namely, that of a clearing station.92 In fact, according to the Article 2.2. of the Return Directive, the Member States are not obliged to apply the directive to the third-country nationals who have been refused entry in a transit zone of a Member State. Classifying Lampedusa holding centre as a clearing station therefore circumvents the Return Directive and relieves Italian authorities of the obligation to bring removal practices in Lampedusa in line with common EU standards.93 
            The discussions between the European Union and Libya regarding migration management have intensified throughout 2005 and are currently directed towards drawing a Joint Action Plan.94 Developed under the framework of the external.  The Joint Action Plan that is currently being drafted outlines inter alia the enhancement of border control at Libya’s sea, southern land and air borders, training of Libyan law enforcement officers including a thematic programme on asylum, refurbishment of detention camps and dialogue with main countries of origin as the main components of the EU-Libyan partnership.95 Given the fact that Libya does not have a functioning asylum system in place and that it is not party to the Geneva Convention, the Action Plan proposes to limit the EU’s intervention as far as detention centres are concerned to the provision of health care and advice and to postpone assistance for return operations until conditionality requirements ensuring adequate protection of refugees are met by Libya.96 
            Despite the evidence of grave human rights violations in Libya, suggesting that Libya falls short of conditionality requirements, and prior to the EU’s outlining of the conditions for the formalised cooperation in the field of return, Italy financed construction of detention camps in Libya and a program of charter flights for the repatriation of illegal migrants from Libya. In funding the construction of detention camps and carrying out repatriation flights in Libya, Italy circumventing of EU’s framework on immigration and asylum. This however does not exempt the EU from its responsibilities on the matter. The EU Return Directive and the Action Plan on Libya are both new instruments and both need to be finalized. Despite ample evidence of procedural irregularities and allegations of collective expulsions from Lampedusa holding centre, the Commission’s Proposal for a Return Directive gives Member States the possibility of not applying the Directive in transit zones. In a similar manner, the EU also went ahead to develop cooperation on irregular migration with Libya despite evidence of grave human rights violations in Libya, no guarantee of refugee rights in Libya and no official recognition of UNHCR protection mandate. |
            Moreover, while the draft of the Action Plan specifies that no EU funding will be provided for return until the conditionality requirements are met, it does not mention any limitations to be imposed on bilateral agreements on return such as the one between Italy and Libya. 
            The EU Return Directive and the Action Plan both strengthen Member States’ discretion and leave ample space for the states, in this case Italy, to apply the exception.97 The wide discretion available for the application of restrictive exceptions, and the Commission’s position on the case of Lampedusa that Italy’s compliance with its international obligations is a matter not to be decided by the Commission but by Italy itself under its national law, undermines the credibility of the Commissions’ monitoring responsibility and the EU’s commitment to protect refugees. 
             The issue of the Commissions’ responsibility as far as the right of asylum is concerned is further raised by its co-financing of the TRIM programme in Libya.98 Under the TRIM Programme, developed and implemented by the IOM, the Commission is funding IOM to improve the services and conditions of detention for irregular migrants in detention centres in Libya,99 to develop a so-called Assisted Voluntary Return Programme (AVR) and Reinsertion programme to support irregular migrants in Libya in returning to their countries of origin, and to strengthen cooperation on irregular migration between origin and destination countries.100 
            Contrary to its commitment not to assist Libya financially with repatriations, the Commission is de facto funding a return scheme for the repatriation of irregular migrants and asylum seekers from Libya via its collaboration with the IOM. Similar to Italy’s expulsion of irregular migrants and asylum seekers to Libya and Libya’s delegation of detention and repatriations matter to IOM, the Commission also contracts out to IOM its responsibility over migration and asylum matters. Yet, contracting out the responsibility for detention conditions and repatriations to IOM does not relieve either the EU, Italy or Libya from their international legal obligations under norms prohibiting refoulement and norms protecting human rights.101 
            Contracting out also raises the question of responsibility as regards IOM’s interventions. In the case of the repatriations of those irregular migrant and asylum seekers who have initially been expelled from Lampedusa holding centre, IOM makes itself complicit in obstructing asylum seekers’ right to asylum. Moreover, the fact that irregular migrants and asylum seekers are deported from Lampedusa without knowing that they are being transferred to Libya, that the removals are executed by force and that once in Libya migrants are again detained in police-guarded structures, raises serious doubts that the IOM-run repatriations from Libya can be identified as voluntary. When the decisions to return are made under duress or as an alternative to state-run forced expulsions, ‘voluntary’ seems to designate an absence of viable options rather than a deliberate choice. IOM cannot be held responsible for the rule of law in the same way as sovereign states. However, in deporting irregular migrants and asylum seekers from Libya IOM is to be seen as assuming joint responsibility for any violation of fundamental rights asylum seekers and irregular migrants might suffer.

Conclusions  

            In the attempt to control the influx of ‘irregular’ migrants and asylum seekers to Italy via Libya, the Italian government developed a number of schemes within and beyond its state borders. In the holding center situated on the island of Lampedusa, Italy’s southernmost island and the most frequent point of arrival in 2004 for boats departing from Libya, Italian authorities implemented detention and large-scale expulsion schemes that according to the NGOs affected irregular migrants and asylum-seekers alike. In order to control the migratory flows prior to migrants reaching its territory, Italy strengthened its collaboration on illegal migration with Libya by signing a readmission agreement, refurbishing several detention facilities and funding a repatriation scheme for irregular migrants in Libya. Libya on its part increased internal checks on specific groups of migrants, in particular those originating from Sub-Saharan states, a practice resulting in arbitrary detentions and unsafe repatriations in which more than one hundred people lost their lives. 
            Despite the Italian Government’s denial that any human rights violations are taking place in the Lampedusa holding center, the European Parliament and the United Nations’ Human Rights Committee (UNHRC) expressed concern about the conditions of detention in the centre. The EP’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) visited the Lampedusa holding center in September 2005 and assessed the detention conditions, the running of the CPTA and the treatment of migrants. Both the European Parliament and the UNHRC called on Italy to guarantee the individual examination of asylum and to refrain from collective expulsions of undocumented migrants and asylum-seekers to Libya. The European Parliament stated that these expulsions constitute a violation of the principle of non-refoulement that prohibits the forcible return of anyone to a territory where they might be at risk of serious human rights violations. To expel asylum seekers from Italy to Libya implies returning them to a country which does not recognize the mandate of the UNHCR, has no asylum system, is not a signatory of the Geneva Convention and in which, as NGOs documented, irregular migrants and asylum seekers are at risk of arbitrary detentions, unfair trails, disappearance and torture while in detention. 
            The procedural and legal safeguards for the return, removal and custody of third-country nationals residing illegally in EU Member States and the collaboration with Libya on matters of illegal migration are about to be regulated through the EU Return Directive and by the Libya-EU Joint Action Plan. The Directive prioritizes voluntary return over forced return, introduces the suspension against a return decision and/or a removal order, and limits temporary custody to those situations where there is a risk of absconding. The Action Plan, on the other hand, proposes to postpone EU assistance for return schemes for undocumented migrants in Libya until the Libyan Government demonstrates full respect for human rights and democratic principles, and a commitment to fulfil its international obligations toward refugees. 
            Potentially instruments that would oblige Italian authorities to revisit their detention and removal practices, the EU Return Directive and the Action Plan both still to be finalized leave at this stage too ample a space for the Member States to apply restrictive exceptions and to develop bilateral partnerships. Since the directive exempts the Member States from applying the minimum procedural and legal safeguards for the return, removal and custody to a transit zone, Italian authorities do not hold the obligation to revisit their removal practices in the Lampedusa holding center so as to bring them in line with the common EU standards. Similarly, the scope of Member States’ interventions regarding funding of return schemes for irregular migrants in Libya is not contemplated by the Action Plan which hence imposes no limitations on repatriation programs for irregular migrants in Libya, such as those funded by Italy in 2003 and 2004. Wide powers are being left to the Member States to apply exception and develop bilateral partnerships, which in combination with the funding allocated to the IOM for a programme geared inter alia towards developing a repatriation scheme in Libya, undermines EU efforts to achieve a common framework on asylum and immigration, and thereby improve its credibility on refugee protection.
            Scholars and policy analyst have approached the issue of detention and repatriation programmes outside EU borders in terms of the externalization of asylum. What this paper suggests however is that the implementation of detention and repatriation programs in Libya, especially when considered together with the expulsions from Lampedusa, do not actually relocate the asylum procedures outside the EU external borders but rather deprive asylum-seekers of the possibility to access the asylum determination procedure. This violation of the right to asylum is concealed by the imagery invoked by the politicians and the media of an impending mass arrival of undocumented migrants from Libya to the Italian shores. This imagery distorts the reality of migratory movements from Sub-Saharan Africa into Libya, which is an established part of Libya’s seasonal labour migration rather than a source of irregular migration into Europe. While producing an erroneous representation of migratory flows in the Mediterranean region, the imagery of impending mass arrival also conceals Italy’s reluctance to admit asylum seekers into its territory and its unwillingness to assume its share of asylum responsibility in the EU. 
            Current Italian-Libyan partnership indicates a new reorientation of Libyan politics from a pro-African to a pro-European stance. This change in political balances, accompanied by Libya’s tightening of border controls towards its Sub-Saharan neighbours is likely to clash with the principle of free movement of people that is a cornerstone of regional cooperation and integration in the Sahel-Saharan region. This shift could destabilize the current political balances between Libya and its neighbouring states, and may consequently ‘illegalize’ movements of large groups of Sub-Saharan nationals. The implementation of detention and expulsion schemes that illegalize migratory movements and impinge upon migrants’ right to seek asylum brings into question the political responsibility of all actors involved, whether they are Governments, supranational bodies or agencies. The Italian and Libyan governments, the European Union, and the International Organization for Migration all need to assume their share of responsibility for the violations of rights that asylum seekers and irregular migrants might suffer as a result of the measures and programmes they implement inside the EU and outside its borders.  

Policy Recommendations  

            Given the fact that data available on measures regarding detention and deportations of irregular migrants and asylum seekers in Lampedusa and Libya are often contradictory and incomplete, that bilateral agreements on irregular migration remain undisclosed and that the European Union’s framework leaves large discretion for the Member States to apply restrictive exceptions, this paper recommends transparency, accountability and legitimacy as key principles to guide Member States agenda and EU’s partnership with neighbouring states in the field of asylum and immigration.  

Transparency 

            Developing a correct assessment of the situation regarding detention, expulsion and asylum at the EU’s southern border is contingent upon gaining access to and rendering transparent the information, programmes and agreements that regulate repatriations of irregular migrants and asylum seekers in Lampedusa and Libya. Whether carried out by the Italian and Libyan states or by the IOM, a lack of transparency is common to the policies and schemes countering irregular migration from and into Libya. Information regarding the number, frequency and destinations of the return flights from Lampedusa CPTA, the content of the bilateral agreements between Italy and Libya and between Libya and IOM, and the content of the contract for the TRIM Programme co-funded by the EC must be made public in order to achieve a transparent Community policy on asylum and immigration.  

Accountability 

            With regards to the partnership with third countries in the area of migration and asylum, the EU must provide leadership in terms of human rights protection. The divergent interests between national and EU competencies over borders, asylum and immigration should not leave member states with ample space to apply the exception that, as in the case of the EU return directive, would result in the disregard of even the minimum safeguards on return. In cases where either the EU or states contract the IOM this does not exempt the EU, Italy or Libya from their international legal obligations under norms prohibiting refoulement and norms protecting human rights. Even though IOM cannot be held responsible for the rule of law in the same way as sovereign states, it must assure that its programmes do not impinge upon the right to seek asylum and must be held accountable for any violations that might occur as result of its actions. 
            The lack of safeguards and control mechanisms ensuring the right to seek asylum and Italy’s tendency to circumvent its responsibilities on matters of asylum require an intervention from the side of the European Parliament. With the co-decision on asylum and immigration, the EP is directly involved in the decision-making process and needs to propose amendments to the Return Directive and the Action Plan on Libya with the objective of achieving observance of human rights and international standards. In the absence of any EU monitoring mechanism in Libya, the EP should urgently visit those detention centres in Libya where implementation of detention and repatriation are funded by the EU and Italy. The EP’s intervention would play a crucial role in achieving a transparent and democratic procedure as regards to a common asylum policy and would steer it towards a rights- rather than a control-based approach.  

Legitimacy  

            Holding centres are instruments aimed at facilitating an effective repatriation of third-country nationals who have entered Italy illegally. Lampedusa holding centre does not fulfil its main functions: it facilitates only a nominal amount of expulsions and it perpetuates ill-treatment rather than offering assistance. In order to ensure that detention procedures and practices are in conformity with the existing domestic and international standards, a short-term objective is to mandate an independent monitoring body to make regular, unrestricted and unannounced visits to Lampedusa holding centre. The closure of Lampedusa holding centre should constitute a long-term objective.102 Since Lampedusa holding centre is classified as a clearing station, Italy is likely to disregard the set of minimum procedural and legal safeguards on return, removal and custody provided under the EU Return Directive. The closure of the Lampedusa holding centre would prevent future violation of procedures and assure that migrants and asylum seekers rights are not sidestepped by the Italian authorities.  

[The views in this report are the author's own and do not necessarily reflect those of the Center for Policy Studies, Central European University or the Open Society Institute.]
 

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Notes 

1 According to the European Court of Human Rights, collective expulsions are defined as “any measure by which foreigners are forced, due to their membership of a group, to leave a country, apart from cases in which this measure is adopted following and based on a reasonable and objective assessment of the specific situation of each of the individuals composing the group”. 
2 See European Parliament, Report from the LIBE Committee Delegation on the Visit to the Temporary Holding Centre in Lampedusa, EP/LIBE PV/581203EN, p.2. 3 Ibid., p.3. 
4 See ARCI, Il diario del presidio ARCI a Lampedusa, 2005a; ARCI, Lampedusa Watching, 2005b. 
5 CPTA has a direct access to the runaway. For a more detailed description see Andrijasevic, R, ‘Lampedusa in Focus: Migrants caught between the Libyan desert and the deep sea’, Feminist Review no. 82, 2006, pp. 119-124. 
6 186 places are centre’s legal capacity. See Corte dei Conti, Programma controllo 2004. Gestione delle risorse previste in connessione con il fenomeno dell’immigrazione, 2005, p. 103. 
7 Amnesty International, Italy: Temporary stay – Permanent rights: the treatment of foreign nationals detained in ‘temporary stay and assistance centres’ (CPTAs), 2005, p. 34. 
8 Law 40/1998, later merged into Legislative Decree No 286 of July 1998. Decreto Legislativo 25 luglio 1998, n. 286 – Testo unico delle disposizioni concernenti la disciplina dell’immigrazione e norme sulla condizione dello straniero. 
9 The legal procedure for the asylum seekers detained in identification centres and CPTAs is the same. In both cases asylum seekers fall under the fast-track procedure. The fast-track or simplified procedure was set up by ‘Bossi’Fini’ law and it supplements the ordinary procedure, now reserved only for those asylum seekers who have entered Italy legally. 
10 The Bossi-Fini law (Law 189/2002 of July 2002) tightened significantly the Italian immigration policy. It reduced from 15 to 5 the number of days irregular migrants have at their disposal to leave Italy once they have been issued with an expulsion order; increased from 30 to 60 the days irregular migrants can be held in a detention centres; and doubled the number of years (from 5 to 10) during which those issued with an expulsion order are banned from entering Italy. The Law set out that those served with an expulsion order are to be detained in the CPTAs prior to the forcible escort to the border instead of receive the injunction to leave the county and being expected to leave the country on their own without being detained in the CPTAs. It reinforced the expulsion methods and introduced the mandatory removal via forcible escort that prior to this law reform was optional and applied only when there was a concrete risk of a third country national disobeying the expulsion order. 
11 The Provincial Police Authority may however request detention in order to: verify or determine asylum seeker’s nationality or identity if they have no identification papers or travel documents or if they have produced false papers on arrival; check the claims on which the asylum seeker’s application is grounded; and bridge the gap for those asylum seekers awaiting the outcome of the procedure for entry to the country. 
12 The 30 days comprise 20 initial days with possible 10-day extension by the judge. For the CPTAs the maximum period of detention of 60 days involves the initial 30 days with a possible extension for other 30 with judicial approval. 
13 For the list of NGOs see footnote 26 and 50. 
14 During their visit to the Lampedusa CPTA, the delegates of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) observed that the interpreters work from Arabic and English and not from French. Since many migrants and asylum seekers in Lampedusa CPTA seem to originate from Maghreb and sub-Saharan African countries and are French speaking, the lack of adequate interpretation makes it difficult to access the right information and/or state their circumstances. See European Parliament, EP/LIBE PV/581203EN. 
15 See ‘Complaint against the Italian government for violation of European Community Law’, 20 January 2005. The complaint and the accompanying dossier are available at http://www.gisti.org/doc/actions/2005/italie/complaint20-01-2005.pdf 
16 An undercover journalistic inquiry found out that the difficulty of making phone-calls is due to the fact that the phone-boot is regularly out of order and that contrary to the Charter of the rights and obligations of detained immigrants from 30 August 2000 stipulating that migrants should be given a telephone card worth 5 euros every 10 days, the phone-cards are not distributed but rather sold by the ‘dealers’ inside of the camp for the amount thee times higher than cards original value. See Gatti, F. ‘Io, clandestino a Lampedusa’, L’espresso 6 October 2005a. 
17 Following the signing of the Asylum agreement between Italian Ministry and the UNHCR, which comes into effect on the 1st March 2006, UNHCR will be able to set its office on Lampedusa together with IOM and Italian Red Cross. 
18 The listing of who can access the CPTAs is provided under the provisions of the article 21 of DPR 394 of 31 august 1999. According to Italian legislation the MPs have the right of entry to CPTAs and to all place of detention in Italy. To UNHCR staff can, with the authorization of the Ministry of Interior, access the CPTAs anytime and speak in private with the third country nationals who request such encounter. However, in March 2005 while 180 undocumented migrants and asylum seekers were being expelled to Libya on airplanes, the UNHCR requested immediate access to the Lampedusa CPTA but its request got denied. During the same period two Italian senators, Mrs. Chiara Acciarini and Mrs. Tana de Zulueta were permitted to access the CTPA only the second day of their arrival to the island and then only to the part of the CPTA with the offices and could therefore not assess the conditions of detention not talk to the migrants.
19 ARCI compiled a dossier containing information as to numbers of migrants arrived via sea, those removed to other CPTAs or to Libya, and the descriptions of police practices towards migrants. Since little official data is available so far, the dossier presented to the MEP delegation during their September visit, is a unique source of these kind. See Arci, ibid., 2005b. 
20 ARCI reports that many minors have been wrongly identified as adults. ARCI also expressed concern that, after been held in detention for 5 days, between 9th and 18th August 2005 only a part of unaccompanied minors were transferred to another CPTA while the rest was presumably expelled to Libya. ARCI’s data called attention to an alarming irregularity: after having been released from CPTA of Lampedusa, minors were reassigned to the reception centres of ‘Casa Amica’ in Agrigento (Sicily) and/or ‘Association Three P’ in Licata. In Licata, they stay for an extremely short period of time –at times only 24 hours—and from there they are all transferred to Milan following Association’s declarations that they have contacted minors’ parents or friend, all oddly residing in Milan. This operations occured, ARCI refers, without authorization or knowledge of the competent juridical authorities. Arci, ibid., 2005a. 
21 The four prefabricated containers, each with 40 beds, are insufficient for all the migrants. Made for 180, but accommodating commonly for 300 to 400 migrants between spring and autumn months, with occasional ‘peaks’ of over 1000 migrants in the summer, results in the majority sleeping on the sleeping mats on the floor in the corridors or on the ground outside. 
22 Only in case of urgent and life-threatening cases, migrants are brought to the local health-centre; all others are treated by Médecins sans Frontières (MSF – Doctors without borders) directly at the pier or in the camp by a doctor and a nurse. The MSF, the Italian office of the well-known humanitarian medical aid agency which assisted more than 10,000 people at the center of Lampedusa between September 2002 and December 2003, was refused access to any CPTAs from 19 April 2004 onwards following the publication of their highly critical report on the detention and health conditions in Italian CPTAs entitled Centri di permanenza temporanea e assistenza: autonomia di un fallimento; Sinnos editrice, 2005. 
23 The CPTA that accommodates on average 400 migrants has about 10 toilets and as many showers and sinks, alimented exclusively by sea water. Since the centre is not connected to the sewage, the toilets are frequently clogged and they overspill to the floor and the outside. 
24 This includes physical abuse, humiliation and racist remarks. See Gatti, ibid., 2005a and the video from inside the camp by Italian undercover journalist Mauro Parissone. Http://euobserver.com/22/20167 (consulted on 16/11/2005). 
25 ARCI dossier demonstrates that police use physical force to carry out deportations, especially when migrants resist deportation or attempt to run away, and that the sign of physical injuries does not prevent the police from carrying on the removal. The Sicilian Antiracist Network video-recorded and circulated images of deportations at the Lampedusa camp. Since police prohibits filming or photographing, this material represents one of the few visual evidences of the deportations in Lampedusa. See Lampedusa Scoppia at http://www.ngvision.org/mediabase/487 
26 ANAFE - Association nationale d'assistance aux frontières pour les étrangers (France), Asociacion ‘Andalucía Acoge’ (Spain), APDHA - Asociación Pro Derechos Humanos de Andalucía (Spain), ARCI - Associazione Ricreativa e Cultura Italiana (Italy), Asociaciòn ‘Sevilla Acoge’ (Spain), ASGI - Associazione per gli Studi Giuridici sull'Immigrazione (Italy), Cimade (France), Federación des Asociaciones SOS Racismo del Estado Español (Spain), Gisti - Groupe d'information et de soutien des immigrés (France), and ICS - Consorzio italiano solidarietà. See footnote 15. 
27 Given the short time elapsed between the arrival of the migrants and their deportation (at times as little as 24 hours), NGOs claim that it is unlikely that the CPTA authorities examined individually the cases of 1000 people. Further, they have been deprived of the right to file an appeal due to the decision by the Italian government to remove them. 
28 Conditions of detention fall under the definition of ‘inhumane and degrading treatment’. 
29 AI letter to JFS Commissioner Franco Frattini, dated 21 March 2005 (B456); and AI appeal to the EU regarding expulsions from Italy to Libya, dated 28 June 2005 (B472) 
30 In particular with Italy’s obligation under articles 5 (information), 6 (documentation), 7 (residence and freedom of movement), 13 and 15 (material reception and health care) of the directive 2003/9/EC laying down minimum standards for the reception conditions of asylum seekers. 
31 EP/LIBE PV/581203EN, p.3. 
32 See Italian Ministry for Foreign Affairs’ written reply prepared for the 85th session of the UN Human Rights Committee. Ministry for Foreign Affairs, Interministerial Committee of Human Rights, Reply to List of Issues (CCPR/C/84/L/ITA) (Relating to CCPR/C/ITA/2004-5), U.N. Human Rights Committee 85th Session, Geneva 17 October – 3 November 2005. 
33 CCPR/C/ITA/CO/5 dated 28th October 2005. 
34 European Parliament, European Parliament Resolution on Lampedusa, 14th April 2005, P6_TA(2005)0138. 
35 The data provided by the Italian authorities specify that 1153 migrants were returned to Libya between 29th September and 8th October 2004 and another 494 between 13th and 21st of March 2005 (EP/LIBE PV/581203EN, p.2). Italian authorities provide no data for later expulsions. The numbers reported here come from NGO sources.
36 Human Rights Watch, World Report. Events of 2005, p. 373. 
38 European Commission, Report on the Technical Mission to Libya on Illegal Immigration, 2005, pp. 58-59. 
39 In spite the fact that the Italian MPs requested detailed information about the location of the camps in Libya and the amount of funding, the Italian Government confirmed and disclosed the position of the camps only recently in the report by the Italian Audit Court. The amount allocated for the construction of the camps remains however still unknown but according to the EC report the funding is classified as humanitarian support. EC, ibid., p. 59. 
40 Other destinations were Mali, Pakistan, Niger, Eritrea, Bangladesh, Sudan and Syria. EC, ibid., pp. 61-62. 
41 Since July 2000, Italy and Tunisia have been running joint control activities of Tunisian coastline. Italian police provides training courses for Tunisian border guards. Tunis rejected the Italian funding for the establishment of detention centres in Tunisia since the government feared Italy’s interference into matters of domestic affairs. Cuttitta, P. ‘Delocalization of migration controls to North Africa’, paper presented at the workshop The Europeanisation of National Immigration Policies – Varying Developments across Nations and Policy Areas, European Academy, 1-3 September 2005, Berlin. 
42 While neither Italy nor IOM have disclosed the content of the project, the reports from NGOs and individual experts that the deportation from Lampedusa to Libya acquired nearly a weekly regularity after the signing of IOM-Libyan agreement suggest the pilot project to be a repatriation project or a so-called Assisted Voluntary Return (AVR) Programme. These information where gathered by the author in Lampedusa during the Asia-Europe Foundation workshop The Management of Humanitarian Aids and of Transnational Movements of Persons in the Euro-Mediterranean Area and in South-East Asia, 28-30 August 2005, Lampedusa. 
43 The cooperation between IOM and Libyan Government was developed in the framework of the 5+5 Regional Dialogue on Migration. As an informal dialogue on migration, 5+5 Dialogue is a forum that bring together the Maghreb countries (Algeria, Libya, Mauritania, Morocco and Tunisia) and the countries of the ‘arc Latin’ (France, Italy, Malta, Portugal and Spain) to promote the prevention and fight against irregular migration and trafficking in countries of origin, transit and destination. As a partner in the 5+5 Dialogue, as preceding the regional seminar on irregular migration in the western Mediterranean in Tripoli on 8 and 9 June 2004, IOM organized in cooperation with Libya’s People’s Committee for Public Security a training session for 100 Libyan officials and police representatives. 
44 EC, ibid., p. 15. 
45 AI, ‘Immigration Cooperation with Libya: the Human rights perspective. AI briefing ahead of the JHA Council 14 April 2005’. Http://www.amnesty-eu.org/static/documents/2005/JHA_Libya_april12.pdf 
46 For a description of these expulsions and the itineraries across the desert see F. Gatti, ibid., 2005b. 
47 Requested on several occasions, the Italian authorities have so far not presented the list of expulsions orders from the Lampedusa CPTA. During their visit to the CPTA, the LIBE committee could not view the records of arrivals and departures since, the Italian Authorities claim, they are not held at the centre but at the offices of the Agrigento (Sicily) police. 
48 Alitalia, the Italian national air carrier, and AirAdriatic (AA), a private Croatian air carrier, are currently the two main companies that are removing migrants from Lampedusa CPTA to Libya or to other CPTAs in mainland Italy such as the one in Crotone. Previously, also the Italian charter carrier Blue Panorama was taking part in the removals and expulsions, but has retracted from it following the pressure from the NGOs and the protest a number of activist organized on 2nd of April 2005 --the European Day for Freedom of Movement-- in front of company’s offices in Rome. In Croatia, Amnesty International Croatia has urged AirAdriatic to cease the deportation flights to Libya and appealed to AA to respect international human rights conventions.
49 Amnesty International’s report quotes testimonies of hundreds of Burkinabé nationals as well as several Eritrean and Nigerian migrants who were expelled from Libya to their country of origin after their documents and possessions were confiscated. They testified to having been detained in inhumane conditions, including lack of water, food and medical care. Amnesty International, Libya: time to make human rights a reality, 2004, AI INDEX MDE 19/002/2004. 
50 ‘Common Principles on removal of irregular migrants and rejected asylum seekers’, August 2005 by Amnesty International, EU Office; Caritas Europa; Churches’ Commission for Migrants on Europe (CCME); European Council for Refugees and Exiles (ECRE); Human Rights Watch Jesuit Refugee Service –Europe (JRS); Platform for International Cooperation on Undocumented Migrants (PICUM); Quaker Council for European Affairs; Save the Children; Cimade (France); Iglesia Evangelica Espanola; Federazione delle Chiese Evangeliche in Italia (FCEI); and SENSOA (Belgium). The NGOs put these principles forward as the Commission Director General for JHA visited Libya on 22 June 2005 in order to start the cooperation on countering of illegal immigration and the Commission went ahead to draft the EU return directive. 
51 These core principles are to be applied also in so-called transit, border and airport zones in the EU. They are: voluntary return should always be the priority; vulnerable persons should be protected against removal (children, seriously ill people, victims of trafficking and pregnant women); persons subject to a removal order should always have access to effective remedies, detention for the purpose of removal should be the last resort, family unit should be strictly respected; independent monitoring and control bodies should be created; use of force should comply with Council of Europe recommendations; re-entry ban should be prohibited; and a legal status should be granted to persons who cannot be removed. 
52 The non-refoulement principle has been reaffirmed by the EU as the cornerstone of refugee protection. It prohibits the forcible return of anyone to a territory where they would be at risk of serious human rights violations: "No contracting state shall expel or return (refouler), a refugee in any manner to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion”. This principle makes reference to the lack of individual assessments and to the removal of persons to countries where there exists a serious risk to the physical integrity of those concerned (mentioned in article 19§2 of the European Charter). 
53 Migrants and asylum seekers are deported to Libya, the country lacking minimum guarantees of protection. This is in contravention with the article II-19-2 of the European Charter of Fundamental Rights, according to which "No one may be removed, expelled or extradited to a State where there is a serious risk that they may be subjected to the death penalty, torture or inhuman or degrading treatment". Italy obligation to non-refouleur to a country lacking minimum guarantees of protection is reinforced by the fact that Italy is a party to the 1951 Refugee Convention, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention for the Protection of Human Rights and Fundamental Freedoms. 
54 EP/LIBE PV/581203EN. 
55 The response by Alessandro Pansa, the Director general of the immigration and border police of the Italian Ministry of Interior delivered to the UN Human Rights Committee during its 85th Session on the 20th October 2005. Notes taken by Claire Rodier, GISTI. Http://www.migreurop.org/article909.html 
56 See footnote 32. 
57 This number was given by Italian Ministry of Interior G. Pisanu. See il manifesto 22nd April 2005, p. 9. Http://www.ilmanifesto.it/Quotidiano-archivio/22-Aprile-2005/art74.html (consulted on 25/04/2005)
58 Simoncini, A., ‘Migranti, frontiere, spazi di confine. I lavoratori migranti nell’ordine salariale’, altreragioni, pp. 29-45, 2000. 
59 See Caritas/Migrantes, Immigrazione. Dossier Statistico 2005. Edizioni IDOS, Roma, 2005. 
60 Data from Italian Ministry of Interior, Http://www.cir-onlus.org/Statisticheitalia.htm (consulted 10 December 2005). 
61 Asylum levels in Italy are in fact among the lowest in Europe and in 2004 reported a fall of 26%, which is 5% above the EU average. These numbers are extrapolated from the UNHCR’s 2005 report on Asylum levels and Trends in Industrialized Countries 2004. Overview of Asylum Applications longed in Europe and non-European industrialized countries in 2004. Population data unit/PGDS: UNHCR Geneva. http://www.unhcr.ch/statistics 
62 This calculation does not take into consideration that out of 9019 requests for asylum filed in 2004, only 781 were approved. The readers are hence asked to bear in mind that a hypothetical increase calculated above concerns only requests for asylum rather than the allocation of the asylum status. 
63 Pliez, O. ‘La troisième migratoire, les conséquences de la politique européenne de lutte contre les migrations clandestines’, paper written for Asia-Europe Foundation workshop The Management of Humanitarian Aids and of Transnational Movements of Persons in the Euro-Mediterranean Area and in South-East Asia, 2005 border areas where they work in sectors such as agriculture, tourism and local trade.
64 Hamood, S., African Transit Migration through Libya to Europe: the Human Costs. The American University on Cairo, Forced Migration and Refugee Studies. 2006. 
65 Boubakri estimates that 2 to 2.5 millions of foreigners live in Libya, namely 25 to 30% of the country’s total population. Out of this there are approximately 200 000 Moroccans, 60 000 Tunisians and 20 000 – 30 000 Algerians. Boubakri, H. ‘Transit Migration between Tunisia, Libya and Sub-Saharan Africa: Study Based on Greater Tunis’, Regional Conference Migrants in Transit Countries: Sharing Responsibility for Management and Protection, Council of Europe: MG-RCONF (2004)6e; p. 2. 
66 Boubakri, H., ibid., and Pliez, O., ibid. 
67 Disappointed by the lack of support from the Arab countries, the isolation from the international community due to the bombings in 1998 of flights over Lockerbie in Scotland and in 1989 over Niger, and the 1992 UN Security Council arms embargo on Libya, Colonel Mu’ammar al-Qaddafi reoriented Libya’s foreign policy from Arab towards its sub-Saharan neighbours, and hence from pro-Arab to pro-African policy. 
68 Libya is a key member of the Group of Sahel-Saharan States and of the African Union. The Group also known as CEN-SAD (the Community of states bordering the Sahara and the Sahel) was established in 1998 in Tripoli. It members are: Egypt, Djibouti, Libya, Morocco, Somalia, Sudan, Tunisia, Senegal, Eritrea, Chad, Central Africa, Gambia, Mali, Niger, Burkina Faso, Nigeria, Togo and Benin. African Union was founded in 1999 by the Organisation of African Unity whose main objectives were to ‘rid the continent of the remaining vestiges of colonization and apartheid; to promote unity and solidarity among African States; to coordinate and intensify cooperation for development; to safeguard the sovereignty and territorial integrity of Member States and to promote international cooperation within the framework of the United Nations’. http://www.africa-union.org/ 
69 Pliez, O. ibid. 
70 The countries proposed by the UK were: Albania, Croatia, Iran, Morocco, northern Somalia, Romania, Russia, Turkey, and Ukraine. British proposal was influenced by the so-called ‘Pacific Solution’ implemented by Australia. Having come to public attention in Europe following the MS Tampa incident in 2001, Australian model is based on systematic removal of boat arrivals to Nauru and Papua New Guinea islands, both outside Australian territory and jurisdiction. There migrants claims are processed under preclusion of ordinary juridical control and await the outcome of their application in the detention camp. For PM Tony Blair’s 10 March 2003 letter to the Greek Presidency, see http://www.statewatch.org/news/2003/apr/blair-simitis-asile.pdf 
71 The proposal, advanced by German Minister of Interior Otto Schily and Italian Minister Giuseppe Pisanu, was supported by Germany, Italy and United Kingdom (UK) and rejected by France and Spain. 
72 During the Danish presidency during the second half of 2002, the ‘reception in the region’ was identified as a priority in the area of asylum and migration. In Noll, G. ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, in European Journal of Migration and Law 5, 2003, 303-341.
73 The Commission denied that these pilot projects are directly linked to plans to create EU reception centres in North Africa. Antonio Vitorino, Justice and Home Affairs Commissioner, declared however that “in the short term the Commission could envisage the possibility of setting up humanitarian reception centres in the countries bordering the Mediterranean.” EUOBSERVER, 4th October 2004 . 
74 The danger of this happening was foreseen by Gregor Noll in his brilliant piece on legal and practical issues raised by the idea of external processing where he argues that the proposal to establish processing and protection centres outside the EU represents a serious threat to the existing institution of asylum and that these are likely to result in ending of legal and factual protection for certain groups of people. See footnote 73. 
75 Current research on migration on Libya confirms these claims. See Hamood, S. ibid., pp. 33-46. 
76 Libya is often characterized as lacking a comprehensive strategy on migration and border management and the migration into and via Libya is outlined as a negative effect of Libya’s open-border policy towards sub-Saharan Africa. Within this framework, the recent deportations from Libya to Maghreb countries and sub-Saharan Africa funded by the Italian Government have been seen as a step forward in establishing a migration management system in Libya. What these practices disregard however is that in Libya deportations as state policy have been in place since 1966 and hence well before Lampedusa became the main point of entry into Italy for migrants departing from Libya. See Pleiez, O., ibid. 
77 EC, ibid., p. 39. 
78 See Maccanico, Y. ‘The European Commission Technical Mission to Libya: Exporting Fortress-Europe’, Statewatch bulletin, vol. 15 no. 2, March-April 2005. 
79 Anderson, B. and J. O’Connell Davidson, Needs and Desires: Is there a Demand for "Trafficked" Persons?, Geneva, IOM, 2003 
80 See for example the research on trafficking in women in Europe Andrijasevic, R. ‘La traite des femmes d’Europe de l’Est en Italie’ Revue européenne des migrations internationals Vol 21(1), 2005, pp. 155-175. 
81 Salt, J. and J. Stein, ‘Migration as a Business: The Case of Trafficking’. International Migration, 35(4), 1997, pp. 467-491. 
82 Gatti, F. ibid., 2005b. 
83 In their report, the EC experts state that the reasons for arrests and repatriations carried out by Libyan authorities are unclear and arbitrary. Although migrants were in an irregular legal situation they were holding regular jobs and some were holders of identity cards issued by private Libyan companies. See EC, ibid., p. 31-35. 
84 Libyan authorities confirmed that 106 migrants died during an expulsion operation in 2004. Basing his inquiry on the data from Red Crescent, Gatti claims that at least another 70 men and women died in the desert as result of unsafe conditions. Gatti, F. ibid., 2005b. 
85 On this topic see Koslowski, R. ‘Economic Globalization, Human Smuggling, and Global Governance’, in D. Kyle and R. Koslowski’ (eds.), Global Human Smuggling. Comparative Perspectives, Baltimore and London, The John Hopkins University Press, 2001, pp. 337-358. 
86 The exact percentage is 48,1. Quoted in the 2005 report by Corte dei Conti. http://www.corteconti.it/Ricerca-e-1/Gli-Atti-d/Controllo-/Documenti/Sezione-ce1/Anno-2005/Adunanza-c/allegati-d3/Relazione.doc 
87 Karakayali, S. and V. Tsianos,‘Wilde Schafsjagd in Aigais und die transnationalen “mujahideen”. Rastanski Lojia Über Grenzregime an der Südostgrenze Europas’, Springerin n. 4, 2005; and Mezzadra, S. (ed), I confini della libertà. DeriveApprodi, Roma, 2004. 
88 A deportation order is served to those applicants whose application has been rejected. The applicant can appeal within 15 days but this does not suspend the deportation order even though the Prefetto might authorize the applicant to remain in Italy until the outcome in the appeal. In case, the applicant is deported before presenting the appeal, he/she has the right of appeal from abroad via Italian diplomatic representations. 
89 See International Federation for Human Rights (FIDH), Italy. Right of Asylum in Italy: Access to procedures and treatment of asylum-seekers. Report. International Fact-finding Mission. No. 419/2, June 2005, p. 19 
90 Mezzadra, S. Diritto di fuga. Migrazioni, cittadinanza, globalizzazione, Verona, Ombre corte, 2001,dimension of the common European asylum and immigration policy laid out by the Hague programme with the aim of integrating asylum into EU’s external relations with third countries, the cooperation between the EU and Libya is geared towards defining operational measures to counter illegal migration.
91 European Commissions, Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals. 
92 AI, Temporary stay – permanent rights. Ibid., Appendix 2. 
93 I thank Daphné Bouteillet-Paquet, JHA Executive Officer from Amnesty International EU Office for bringing this point to my attention. 
94 The history of discussion between EU and Libya goes as fellows: in November 2002, the Council considered it essential to initiate cooperation with Libya on migration. In May 2003, the Commission organized an exploratory mission to Libya to assess the interest of Libyan government in developing a cooperation. The Council decided, on 16 June 2003, to organize a follow up technical mission. Postponed until the Council agreed on 11 October 2004 to embark upon a policy of engagement with Libya, the technical mission was carried out between 28 November and 6 December 2004. On the basis of the recommendations contained in the report of the technical mission released in April 2005, draft operational Council conclusions were drawn and later discussed by the High Level Group on Asylum and Migration in 20 May, by the JHA Counsellors on 23 May, and by the Permanent Representatives Committee on 26 May 2005. The outcome of this process is the draft Council conclusions on initiating dialogue and cooperation with Libya on migration issues (9413/1/05 REV 1). Many of the measures outlined in the Annex are taken up by the Libya-EU Joint Action Plan that at this point is still being drafted and therefore not public.
95 The Joint Action Plan is still in it draft form. Nevertheless, the combined information for the Action Plan (draft as at September 2005) and the Draft Council Conclusions on initiating dialogue and cooperation with Libya on migration issues (9413/1/05 REV 1) offer an outline of the main points and suggest the priorities likely to be included in the final Action Plan. 
96 In accordance with the Council conclusions in November 2004, any cooperation is conditional upon full respect for human rights, respect for democratic principles, the rule of law and the demonstration by those countries of a genuine commitment to fulfil international obligations towards refugees. 
97 Thierry Balzacq and Sergio Carrera identify large margin of exception as one of the reasons for low convergence of Communitarian policies on migration, borders and asylum. In Balzacq, T. and S. Carrera. Migration, Borders and Asylum. Trends and Vulnerabilities in EU Policy. CEPS: Brussels, 2005. 
98 A sum of 2.000.000,00 EUR has been allocated by the Commission under the 2004 budget for the AENEAS Programme. See Annex 1 of the Communication from the Commission to the European Parliament and Council. Thematic Programme for the cooperation with third countries in the area of migration and asylum. COM(206) 26 final dated 25 January 2006. 
99 The degree of IOM’s involvement with detention camps in Libya remains to be seen. IOM’s involvement with the matter of reception centres in the north Africa dates back to 2002 when IOM, UNHCR, the European Commission, the Netherlands and Denmark met in an informal meeting to discuss the UK proposal for ‘in the region and off-shore processing’ and drafted a memorandum that set a number of practical, legal and financial issues concerning the external processing. IOM has already managed off-shore processing detention centres, such as the one set by the Australian authorities on Nauru island, for which it came under attack by Amnesty International and Human Rights Watch, and urged to stop arbitrary detention and impingement of migrants’ right to seek asylum. IOM is currently also responsible for realization of two large new camps for irregular migrants in Ukraine, one of the potential countries to host EU’s Regional Protection Programme. 
100 EC, ibid., p. 15. 
101 Even though Libya is not a signatory of 1951 Geneva Convention, Libya has ratified the respective 1969 OAU Convention on protection on refugees. 
102 The majority of Italy’s Regions stand for the closure of the holding centres. In summer 2005, fourteen Provincial Governors and their representatives met at the forum Mare Aperto in Bari and drafted a document in which they commit to launching a political-institutional dialogue geared towards changing current Italian immigration law, closing the CPTAs, creating a comprehensive law on asylum, and doing away with the administrative detention. The final document is available at http://www.meltingpot.org/articolo5676.html

Refugee Protection and Mixed Migration: A 10-Point Plan of Action- Discussion Paper I
 

The Unrecognized Palestinian Refugees in Lebanon- Discussion Paper II ((Ruwad in Arabic), is a non-profit association based in Beirut, which promotes the human rights of refugees and other migrants in Lebanon. Email: frontierscenter@cyberia.net.lb)

No Recognition, No Identity, No Rights: In Which UN Court should be The Bail? 

An estimate small group of around 5000 Palestinian refugees lack legal recognition in Lebanon.  They are not registered with UNRWA in Lebanon nor the Lebanese authorities.
            This group, commonly known as “Non-Ids”, do not benefit from the protection of any State or international organization.  The majority of them entered Lebanon under the legal umbrella of the 1969 Cairo Agreement ¹ they are treated as illegal migrants by the Lebanese authorities and subsequently denied any human rights.
            Most of the Non-Ids live in the Palestinian camps Unrecognized Palestinian refugees are unable to move inside the country and/or leave Lebanon and are not able to enter any other country for lack of documentation or due to the refusal of other countries to welcome them.  They are in continuous fear of being arrested, detained and deported, with no prospect of another country accepting them.  When arrested, the Lebanese State maintains them in detention until it is convinced that it cannot deport them to any country and releases them without any legal basis, putting them again at risk of arrest and detention.  Many of them got married in Lebanon and their children were born in Lebanon but are unable to register their marriages or their children’s birth certificates.  Furthermore, because they are not registered with UNRWA, they do not receive any the regular socio-economic assistance from UNRWA.
            The majority of them fall under the following categories:
  1. Palestinians holding valid or expired identification documents   issued by the relevant official authorities in the Hashemite Kingdom of Jordan and incapable of returning to the Kingdom.
  2. Palestinians holding identification documents issued by the relevant official authorities from the Arab Republic of Egypt – administration of the Gaza strip and hot having permission to   reside in Egypt and are incapable of returning to Gaza strip.
  3. Palestinians holding Identification documents issued by the relevant official authorities in Iraq and due to the violence and oppression targeting them they are deprived from Iraqi protection.
  4. Expelled Palestinians whose return to the Occupied Palestinian Territories is restricted by Israel. 

Reasons for Non-Recognition  

            Frontiers’ groundbreaking legal study “Falling Through the Cracks” (2006), involving field work, and legal and policy analysis, identified the main reasons why thousands of Palestinian refugees in Lebanon are deprived of official recognition and registration by the Lebanese government and the United Nations in Lebanon.
            The underlying problem is that Palestinian refugee status is defined today by rules written mainly in the 1950s and 1960s.  These rules are unable to accommodate the complexity of such a large and long term population displacement.
            Although most Palestinian refugees in the Middle East fled in 1948 or 1967, not all fit this pattern.  While conflicts inside Arab states led to much of the non-recognition problem in Lebanon, the Israeli occupation of the Palestinian Territories is also a major contributor:
–         Some refugees have voluntarily or involuntarily moved on to new countries in a process of secondary migration.  The non-recognition problem in Lebanon has been frequently attributed to the turmoil in Jordan in 1970 and the powerful role of the PLO in Lebanon in the 1970s, both of which brought new refugees to Lebanese soil.
^–        Small numbers of Palestinians left their homes in odd years, such as before 1948 or between the 1948 and 1967 wars.  Some refugees in Lebanon had been displaced from the Gaza Strip or the West Bank between 1968 and 1981.  They are displaced from their homes by the Arab-Israeli conflict, but lack recognition as Palestinian refugees.
These rules require either amendment or at least flexible interpretation in order to reflect the Palestinian refugee situation today. 

Lack of Registration with The Lebanese Authorities 

            Since the 1960s, Lebanese authorities have de facto stopped registering Palestinians in Lebanon in line with their refusal to augment the official number of Palestinian refugees.  Unrecognized Palestinians are therefore facing difficulties to regularize their legal status in Lebanon.
            Lebanon is also engaged in a gender discrimination policy that prevents women from passing on their status to their children and husbands.  This practice increases the number of unrecognised people with each generation, and also misses an important opportunity to reduce the problem.
            In 2006, the Lebanese authorities established the Lebanese Working Group on Palestinian Refugees, later renamed the Lebanese Palestinian Dialogue Committee, to actively search for an adequate solution for the unrecognised Palestinians through a dialogue with the recently reopened PLO office – that has been closed since 1982.  One of the proposed solutions would be for the Lebanese government to recognize the Palestinian Authority Passport and grant them a temporary residency in Lebanon.  Simultaneously, a network of NGOs is continuing its advocacy campaign requesting the legal recognition of Undocumented Palestinians. 

Lack of Registration with UNRWA 

Looking specifically at the problem of non-registration by UNRWA, there are four main challenges: 

Limits of the ‘working definition:” UNRWA has progressively revised its “working definition” of a Palestine refugee.  The current definition, in place since 1993, leaves out people who fled Palestine before 1948 or between 1949 and 1967.  It also leaves in limbo Palestinians who fled in 1967 or later, although the General Assembly has asked UNRWA to assist such people.  Post-1967 refugees have at best de facto assistance from UNRWA, but do not carry registration cards. 

Difficulty to Register for the First Time: Palestinians who initially fled in 1948 and for one reason or another were not registered in UNRWA’s first census in Lebanon and or in any of UNRWA’ operating countries may register for the first time now if they fulfil the conditions.  In order to register an individual, UNRWA requires proof that the person or his or her ancestors resided in Palestine between 1946 and 1948.  As it is difficult to produce such a proof after 60 years of displacement, many Palestine Refugees are unable to register with UNRWA.  The refugees who succeed to obtain registration with UNRWA are not automatically entitled to a legal status in Lebanon.  UNRWA registered between 40-50 new Palestine refugees who were also registered with the Lebanese Ministry of Interior in the last five years.² 

Secondary migration: The possibility to transfer UNRWA registration for Palestine refugees who move from one UNRWA country of operation to another is restricted by UNRWA Consolidated Eligibility and Registration Instructions of January 2002 and of the June 2006.  The Instructions subject the transfer of legal residence to the approval of the governmental authorities in the country to which the refugee wishes to be transferred.  In practice, UNRWA transfers the registration allowing the individual to be eligible for services (if s-he fulfils the conditions for services) but does not take any action with the governmental authorities to obtain their approval for a transfer of registration that would allow the refugee to obtain a legal status. 

Gender discrimination: To date, UNRWA’s registration policy forces women to be registered with a “head of household,” normally either a father or husband.  Women are not able to add spouses to their own UN files, and cannot pass on status to their spouses and children.  This policy violates international human rights law, and exacerbates the problem of non-recognition.  UNRWA has tentatively committed itself to consider changing this policy.  It has recently decided to register the unregistered husband and children of registered refugee woman but it will only register them as “persons” and not as “refugees”.  Hence, the refugee status of a registered Palestine woman is not granted to her husband and children who remain without legal status in Lebanon. 

Lack of Registration with UNHCR 

            Adding to the complexity, there are in fact two relevant UN agencies for Palestinian refugee: UNRWA and UNHCR.  All the unrecognised Palestinians in Lebanon are entitled to UN protection and/or assistance.  Yet, responsibility appears today to be diffused between UNRWA and UNHCR so that some people are left out.
            In 2002, UNHCR considered that Palestinian refugees should enjoy a “continuity of protection.”  This principle recognizes that Palestinian refugees were given a unique status in international law, and should be guaranteed continuous protection or assistance from the United Nations.
            In theory, the interpretation of Article 1-D of the 1951 Convention adopted by UNHCR in 2002 ensures the continuity of protection for Palestinian Refugees, allowing UNHCR to stretch its protection to Palestinians refugees who do not receive protection or assistance from UNRWA. Yet, contrary to international refugee law, UNHCR Offices in the Middle East have not implemented this principle to fill the legal gaps in which the Unrecognized Palestinian refugees have fallen. 

Conclusion and Recommendations 

            It is Frontiers opinion that, as long as UNRWA is not able to provide legal protection to undocumented Palestinians and as long as the Lebanese authorities continue to treat them as illegal immigrants and deny them basic human rights, Undocumented Palestinian automatically fall under the mandate of UNHCR.  The current UNHCR practice in Lebanon and other UNRWA country of operations of entirely excluding Palestinians is legally untenable and should be re-assessed. The need to solve the situation of this category of refugees who suffer from double deprivation – deprivation from citizenship in the country of origin and from recognition in the current country of refuge – is becoming more pressing.
            It is Frontiers’ opinion that, unless UNHCR and UNRWA request from the United Nations General Assembly to modify UNRWA working definition in order to cover Palestinian refugees who do not fit the current definition, the implementation of the principle of continuity of protection to Undocumented Palestinians in Lebanon should be improved based on the following guidelines:
-          Undocumented Palestinians who are Palestine Refugees or Displaced Persons and are not registered with UNRWA should be considered ipso facto as refugees under the 1951 Convention or UNHCR Mandate.
-          Undocumented Palestinians in Lebanon who are registered with UNRWA in an area of operation other than Lebanon should be considered ipso facto as refugees under the 1951 Convention or UNHCR Mandate.  Although some of them are eligible for UNRWA services under certain conditions, their registration with UNRWA in another area does not provide them with legal protection in Lebanon.
-          Undocumented Palestinians who are neither Palestine Refugee nor Displaced Persons should be recognized as refugees under Article 1-A of the 1951 Convention. 

Since these refugees live in hard and severe circumstances and are deprived legal protection and since endeavouring to solve their case has become an urgent matter, Frontiers recommends the following:
-          UNHCR should recognize its responsibility to provide protection for Palestinian refugees in the region that do not fall under UNRWA current working definition of a Palestine Refugee.
-          UNHCR offices should open their doors for the registration and adjudication of the claim of Palestinian refugees in the region that do not fall under UNRWA current working definition of a Palestine Refugee. 

Notes 

1. The 1969 Cairo agreement concluded between the Palestinian Liberation Organization and the Lebanese authorities recognized the Palestinian presence in Lebanon but was abrogated unilaterally by the Lebanese State in 1987 leaving those who were recognized on its basis in legal non-existence.  Lebanese authorities are often faced with the inability to deport unrecognised Palestinian refugees to any countries as they are stateless.
2. Interviews with UNRWA, 7 February 2007.

The Lack of International Protection of Iraqi Refugees in Lebanon- Discussion Paper III ((Ruwad in Arabic), is a non-profit association based in Beirut, which promotes the human rights of refugees and other migrants in Lebanon. Email: frontierscenter@cyberia.net.lb)

            The arrest, detention and refoulement of Iraqi refugees and asylum seekers in Lebanon is a growing concern in the context of the deteriorating security situation in Iraq.  Humanitarian assistance by itself will not protect the Iraqis from being arrested, detained and deported UNHCR’s focus must not only be on humanitarian assistance to the Iraqi refugees in the region, but also on establishing a full protection regime.
            Lebanon is not a party to the 1951 Refugee Convention and does not have an effective legislation regulating asylum.  Therefore, the majority of refugees in Lebanon lack legal status and are treated as illegal migrants.
            There are no official statistics but there may be more than 40,000 Iraqi refugees in Lebanon.  Restrictive measures by Lebanon and other Arab country hinder Iraqis from seeking safer haven in neighboring countries.  As a result, Iraqi refugees find it next to impossible to obtain an entry visa to Lebanon so they enter Lebanon illegally, often assisted by smugglers.
            While the international community was reluctant to acknowledge that many Iraqis fled their country before and during the first years of the US led Coalition’s invasion of Iraq, it was forced to admit the magnitude of the refugee influx after the bombing of the holy Shiite shrine in Samarra on 22 February 2006 that marked the rise of sectarian violence inside Iraq.  The “Temporary Protection” regime implemented by UNHCR since 2003 whereby Iraqis should have been protected against refoulement has been replaced in January 2007 by the recognition of Iraqi refugees on a prima facie basis.  Yet, both regimes have not been effective in providing protection for Iraqi refugees.
            The magnitude of the Iraqi refugee influx in the region raises fears of ‘Palestinisation’ of their plight.  The international community is focusing almost solely on humanitarian assistance, rather than the search for durable solutions.  Lebanon – like other Arab states – is reluctant to improve the legal status and living conditions of Iraqi refugees for fear they will once again have to carry a hosting burden which will carry on for decade after decade.
            As a result, their illegal status denies them any form of socio-economic protection from the Lebanese authorities.  The options for a regularization of their status are not adapted to their conditions.  With no adequate assistance from UNHCR and NGOs to cover their basic needs, they are forced to work illegally and can readily be exploited.  Further, access to education and health care are extremely limited and child labor is increasing.
            More alarming, Lebanese arresting authorities, judges, prosecutors, and General Security (the authority responsible for the regulation of the entry and stay of foreigners) are disregarding the refugee status granted by UNHCR to Iraqi refugees.  Faced with no immediate durable solutions such as repatriation and/or resettlement, Iraqi refugees in Lebanon are forced to bear the continuous risk of arrest, prolonged detention and refoulement.  The feeling of being neglected by an international community engaged in the business of humanitarian assistance and obliviate of protection concerns is growing stronger and stronger among the Iraqi refugees communities in the region. 

Arrest and Detention 

            In 2007, the number of arrests of Iraqi refugees has alarmingly increased.  By the end of August, it is estimated that more than 400 Iraqis were detained in Lebanese detention centers on grounds of illegal entry and/or stay.  In July alone, over 150 Iraqis were said to have been arrested and joined the other Iraqis who have been in prolonged detention.  Considering that official statistics are not easily accessible by the public, it is reasonable to state that the number of detained refugees is underestimated.
            It is a common knowledge that detention conditions in Lebanon are worrying but they are even more worrying when it comes to refugees.  There have been reported cases of ill-treatment and torture in police stations and prisons.  Refugees are also often reported to go on humer strike requesting that their arbitrary detention is brought to an end.  Further, detainees in Lebanon are strongly dependent on their families in order to be provided with basic needs that are not provided by the Lebanese authorities such as mattresses, covers, clothes and medications.  Yet, refugees are often denied this external support as some do not have relatives in Lebanon while others are not visited by their relatives who are also in an illegal status in Lebanon and afraid of being arrested if they do visit. 

Refoulement 

            In 2007, there have been at least three reported cases of deportation of Iraqis refugees recognized by UNHCR.  One of these cases involved an Iraqi family with two teenagers.  The four members of the family were refouled to the Syrian border after the father was detained for a week without trial although UNHCR had intervened requesting their release.  Frontiers is concerned that similar cases will occur in the future and might become a pattern of systematic refoulement by the Lebanese authorities. 

“Voluntary Returns” Operations 

            Iraqi refugees are kept in detention after the expiry of their judicial sentences as a coercive measure to force them to “agree” to return to Iraq.  The Iraqi Embassy in Lebanon, in coordination with IOM, organizes their “voluntary return” to Iraq, as a measure to alleviate the Lebanese detention centers overcrowded with Iraqi detainees.  In 2006, approximately 60 Iraqis were returned to Iraq on a monthly basis.  Since early 2007, around 75 people were returned and approximately 250 Iraqis were on the list to be imminently “returned” to Iraq in August 2007.
            Most Iraqis, if not all, see their return to Iraq as the only way out of prison: faced with indefinite imprisonment with no or little hope to be released by the Lebanese authorities – despite of UNHCR’s intervention on behalf of detainees known to them, they prefer to sign on their return with the hope to leave Iraq again.
            UNHCR Handbook on Voluntary Repatriation considers that “voluntary” refers to the “absence of any physical, psychological, or material pressure” and that “[o]one of the most important elements in the verification of voluntariness is the legal status of the refugees in the country of asylum.  If refugees are legally recognized as such, their rights are protected and if they are allowed to settle, their choice to repatriate is likely to be truly free and voluntary.  If, however, their rights are not recognized, if they are subjected to pressures and restrictions and confined to closed camps, they may choose to return, but this is not an act of free will.”¹
            As prolonged detention after the expiry of the sentence is considered a physical, psychological and material pressure against refugees and as most refugees lack legal status in Lebanon, the voluntariness to return to Iraq expressed by Iraqis in detention is seriously flawed and cannot be considered as an act of free will.
            UNHCR’s role in these operations is limited to counselling the detainees prior to their return.  Yet, it seems that in reality UNHCR is viewed as approving such returns.  Upon receiving the list of Iraqi detainees from the Iraqi Embassy, UNHCR conducts a counselling session stressing that it does not support the return to Iraq, that as Iraqis, they are considered as refugee by UNHCR and that they have the right to seek international protection in Lebanon.  In the course of counselling, refugees are asked whether or not they want o seek asylum or maintain their refugee status.  In case of a refusal, UNHCR makes sure that the person does not wish to seek asylum and intends to return to Iraq.  It is Frontiers’ opinion that by participating in the process of these operations, UNHDCR is allowing other actors to undermine its protection role.
            The arrest and detention and threat of “deportation” under the cover of “voluntary return” is a flagrant violation of the right to seek asylum, the international customary principle of non-refoulement and UNHCR Return Advisory on Iraqis.
            It is therefore Frontiers opinion that the return of Iraqis from Lebanese detention centers is not in reality “voluntary” but rather amounts to refoulement.
            Frontiers is therefore concerned that IOM and the Lebanese authorities, are participating in the refoulement of Iraqi refugees contrary to the principle of non-refoulement and to the UN position on non-returnability of the Iraqi refugees.
            Frontiers is more concerned that IOM and the Lebanese authorities are putting the lives of Iraqi refugees in danger by returning them to war-torn Iraq without monitoring the situation of returnees inside Iraq. 

Conclusions and Recommendations 

            Frontiers believes that the international community must address the root causes of the plight of the Iraqi people inside and outside Iraq in order to come out with substantial recommendations to end the occupation and the escalating violence in Iraq.
            Frontiers believes that the international community must share the responsibility of the humanitarian crisis suffered by the Iraqi people by softening the conditions for admission of Iraqi refugees into their countries, increasing the assistance provided to the disadvantaged Iraqi refugees and ensuring that available resources are channelled directly to Iraqis rather than to operational costs.
            Frontiers also believes that no protection regime – whether it is individual status determination, temporary protection or prima facie recognition – can be effective when it is solely implemented by UNHCR without the involvement of the national authorities, such as Lebanon, and in the absence of national legal frameworks for the protection of refugees, especially in the Middle East.
In the meantime and in light of the serious protection concerns and risk of refoulement, Frontiers recommends UNHCR and the international community to:
-          Remind the Lebanese government of its obligation as a member of the international community to recognize and protect the basic and fundamental human rights of refugees from Iraq during their stay in the country.
-          Request from the Lebanese government to acknowledge the UNHCR guidelines regarding the refugees from Iraq and to establish a mechanism to receive and protect refugees from Iraq fleeing the generalised violence in their country, by allowing their safe admission to the country and granting them temporary residencies on humanitarian grounds.
-          Ensure that the arrest of refugees from Iraq is limited to identification of identity and for security reasons or other criminal charges.
-          Request from IOM to halt assistance to current and future return convoys and adhere to UNHCR guidelines and advisory concerning the non-returnability to Iraq of refugees from Iraq.
               Assist the Lebanese government and national NGOs in order to grant the refugees from Iraq access to basic services such as health and education, and allow self-reliance opportunities.

Book Review
by Ksenia Glebova (Project manager, Finnish Ministry of Health)

Kothari, Rita (2007) The Burden of Refuge: The Sindhi Hindus of Gujarat, Chennai: Orient Longman

             Rita Kothari’s new book is a personal quest in search of Sindhi Hindu identity in Gujarat. A Gujarati Sindhi herself, Kothari sets out to make a contribution to identity politics in contemporary India by presenting a case of the stigmatised Hindu Sindhi minority that moved from the Sindh area in modern day Pakistan to the Indian state of Gujarat. Kothari’s own imbibed discomfort with her identity, mirrored in other Sindhi Hindus, led her “to a larger historical pursuit”.  
            Myths and popular perceptions surrounding the Sindhis in Gujarat are many and complex. Kothari sets out to map the journey of Sindhi Hindus from the Sindh to India after Partition attempting to ‘recreate’ Sindhi history in independent India along the way.  The Sindhi identity has developed under turbulent circumstances in the frontier province of British India, which has traditionally been an area of immigrants and mixed population. The Hindus, in turn, were simultaneously a religious minority in a province with four centuries of unbroken Muslim rule and the most prosperous section of society. Moreover, the unique religious practice of the Sindhi Hindus “bewilders anyone with a well-defined notion of Sanskritic Hinduism” as they propagate a form of Hinduism influenced by Sikhism and Sufism. The Sindhis’ loose interpretation of caste and an apparent workable harmony between Hindus and Muslims did not help their integration in the host Gujarati community either, and the integration process has been slow. As the British left India in the flames of Partition, so were the Sindhi Hindus forced to leave their native Sindh settling in the neighbouring Indian states including Gujarat. 
            Kothari draws an interesting comparison between the Sindhis of Gujarat and European Jewry especially prior to the Second Wold War. Both communities have a reputation for shrewdness in business and money lending; both evoked distrust and dislike despite their remarkable success as a minority community. Both were displaced on religious grounds although their experiences of displacement and in the new homelands could not have been more different. “The Burden of Refuge” suggests that the Sindhi experience of Partition is rather unusual in the sense that, as a community, they escaped mass slaughter and violence that accompanied the population movement across the new border. 
            Ritu Kothari’s primary interest in “The Burden of Refuge” stems again from personal experiences – most of the Hindu Sindhis of Gujarat seem to have “disposed of a religio-cultural pluralism and their mother tongue in order to erase their Sindhiness for the sake of more mainstream identities”. 
            The stigma associated with being a Sindhi in Gujarat is thus another leitmotif of the book. The nature of Sindhi stereotypes is unremitting, uncompensated by any positive feedback from any quarter. For Gujaratis, Sindhis are “dirty” and even educated Sindhis themselves internalisee this stigmatising perception. In the process of her research Kothari encounters Sindhis of different generations, social class and professions but, almost without fail, their all share a sense of identity discomfort, although they may deal with it in their own different ways. Kothari unveils the process of shedding not only language but also sense of identity and shows that every generation of Hindu Sindhis in Gujarat contributed to the dilution of the identity that she is in search of.
            The book tells a story of three generations encompassing those who fled Partition and their descendents in today’s Gujarat. According to Kothari, the first generation, the so-called midnight’s children, was too busy piecing their lives together in a new place and thus adopted a very pragmatic approach to survival in the new setting. The second generation lived in a “cultural vacuum” thriving for acceptance and integration into the mainstream Gujarati community. Kothari’s own students in Ahmedabad provide a sample of younger generation and she shows that once educated they are no longer in prison of negative perceptions. However, others have opted for complete circle of integration shedding the language and assuming the new Gujarati Hindu identity. Yet others have gone further in this search for acceptance and desire to become mainstream Hindus – by supporting Hindu fundamentalist organisations and by proxy forgetting that their exclusion came from Hindus and not Muslims.
            Kothari lets her subjects speak for themselves. The book is rich in first-person accounts especially by members of the first generation migrants to India. The author herself grew up in Gujarat in the 1970s and 1980s amid the social stigma and marginalisation experienced by the local Sindhi Hindu community. In the book, she revisits her childhood and adolescence while interviewing young Sindhi Hindus living in Gujarat today. Some of the interviewees are Kothari’s personal acquaintances, neighbours or even family members, others she randomly encounters on her journey through the past and present. Kothari also interweaves the account with her own stories of growing up as a Sindhi Hindu in Ahmedabad thus creating “a version of the Sindhi story of migration, told through memory”. Kothari collects and presents interviews – or, rather, disjointed narratives by strong and often opinionated characters with which “neither an interview nor a conversation was possible”; and rambling accounts of their lives that do not necessarily answer the author’s questions but perhaps create more questions in the process.
            In “The Burden of Refuge” Kothari seeks to construct a coherent sense of Sindhi identity. She does it with a pinch of nostalgia, as a desire to stop the linearity of time. Her personalised account brings to life and eases off the burden of refuge as borne by one marginalised community in modern India. Kothari strives for her ultimate goal of promoting self-critical attitude among the Sindhis and creating a sense of self-awareness as a group at the cost of emotional bias and nostalgic longing for the past.

Book Review
by Binod Mishra (Fellow Maulana Abul Kalam Azad Institute of Asian Studies)

Bob, Currie (2000) Politics of Hunger in India, Chennai, Macmillan India Ltd, 

            The undivided districts; Kalahandi, Bolangir and Koraput of Orissa have been identified as the poorest zone of the country. This region attracted the attention of the nation and the world in 1985 with the media reporting the sale of a girl child for mere 40 rupees by a tribal woman. Since then the region popularly known as KBK has been used as a synonym for poverty in the country. Twenty years have passed and numerous agencies, both government and non-government, have been engaged in alleviating poverty. But the ground realities present no happy prognosis. Recurrent droughts, starvation deaths, and seasonal migration are conspicuous. The region as a whole being highly deficient in irrigation facilities, agriculture is mostly rain fed. The region receives an annual rainfall of between 1378 to 1522 mms which is higher than the state average (1489mms) but the rainfall is erratically distributed and recurrent droughts are a feature of this region. Starvation deaths are not uncommon in these districts though most of them get covered up under various other names. But the most conspicuous manifestation of poverty in the region is seasonal migration. Every year there is an exodus at a particular time of the year and the same population returns to their villages spending some time outside the district or the state. Every year, nearly two million people migrate from these districts to the nearby states of Andhra Pradesh, Chattisgarh and even to farther places such as Maharastra and Gujurat. A visit to the districts between November to April would reveal the intensity of migration. Deserted households and even deserted villages is a common feature.
            Seasonal distress migration in these districts is neither voluntary and was not habitual. The origin of migration is traced to the severe draught in 1965-66. The author discovers in the local folksongs of this period, the farmers’ lament on the draught condition and the shift in their occupation from agriculture to metal crushers on the road. The folksong further points to the fact that taking advantage of the desperate situation of the tribal farmers the contractors took them away from their homes for employment elsewhere. Since then seasonal migration in search of work has become an annual reality. This annual phenomenon is explained in terms of limited employment opportunity in these districts. Along with land alienation, and usurious credit practices, the author identifies ­­­­­three more reasons for this forced migration. First the quality of the landholding of the tribal is of poor quality that fails to produce surplus for the farmers. Second, lack of irrigation and erratic nature of rain limits the agricultural activities to 4-5 months throughout the year leaving agricultural wage earners jobless for the rest of the year. Thirdly the two districts under study fair miserably in terms of industrial development. To use the author’s statistics, 14 per cent of Nawapada and 16 per cent of Kalahandi’s main workers are engaged in non-agricultural activities and Kalahandi ranked 14 in terms of capital investment in new industries in the study year whereas Nawapada ranked 25 among 30 districts of the state. The popular destination of these migrants workers used to be Raipur in Chattisgarh and Andhra Pradesh and the popular profession for these migrants are rickshaw pulling in Raipur and working in the construction industries in Andhra Pradesh. This situation brings to the forefront the question of why a large section of the population of a particular area migrates every year. Politics of Hunger is a book in search of the causes.
            The book Politics of Hunger in India has been divided into two parts. The first part deals with the theoretical questions related to security and welfare of the citizens of a political community. In the second part of the book, the author tests the theoretical concepts in the light of the empirical data collected from two districts of Orissa, i.e. Kalahandi and Nawapara.  Delving into the economic history of this region, Bob Currie has identified a process that began during the colonial period and is still continuing causing increased indebtedness among the tribals. He reveals that the region was not economically vulnerable traditionally but it was made so by the political process both during the colonial period as well as the post-colonial period. He discusses at length how the rulers of this region, in order to extract more revenue, invited outsiders to the area giving in their hands the control of land as well as administration. The author argues that the exposure of the tribals to the money-based economy made them victims of market fluctuations leading to their increased indebtedness. He further reveals that recurrent drought caused food shortage in the region. The author argues that the reason for the pauperisation of the tribals of the region, despite it being the rice surplus region of the state, is polarisation of productive resources. Alienation of land and other productive assets from the tribals through unscrupulous means of credit, mortgage, and encroachment resulted in irreversible impoverishment of the tribals making them vulnerable to bonded labour and distress migration.
            The author concludes the study with some pertinent observations which advocate greater political participation for development. He argues that greater political participation does not guarantee poverty reduction or development and to achieve these objectives, the form of political participation is important and the author opens this as a further area of policy research on poverty and hunger alleviation. The author favours that a political culture in which the political authorities take upon themselves the responsibility to reduce hunger and wherein exist political associates who bear antecedent responsibility of assisting those in difficulty through direct means of political obligation and indirectly by supporting the relief and welfare measures of the civil authorities which unfortunately does not exist in western Orissa. He concludes that the constitutional freedom and equality is ineffective unless the citizens are equipped with necessary resources such as food, shelter, clothing, access to information and physical security to make effective use of the constitutional freedom and equality.
            Being based on the author’s primary research in two most underprivileged districts of the country, the book presents firsthand information and explanation about the causes of poverty, starvation and migration and explains their persistence in a democratic country for fifty years after independence.