Credits: Mohamed Azakir, Reuters
By: Arya Anand
A Groundbreaking Revelation
In February 2022, Lebanon witnessed a historic moment, as “MH” an Ethiopian Migrant Domestic Worker (MDW) filed slavery and forced labour charges against her former employers, after enduring eight years of abuse, torture and enslavement. Additionally, charges of slave trading were filed against her recruitment agency for having blatantly lied about the true conditions of her employment. This constituted Lebanon’s first ever legal case addressing the Kafala system as a mechanism of modern-day slavery. Meanwhile, elsewhere in Lebanon, a Filipina MDW was violently abducted by her employer for escaping the abusive household. These revelations highlight the plight of female MDWs facing Gender Based Violence (GBV) from their employers (“kafeels”), under the guise of the Kafala, which has been masqueraded as a path to economic prosperity for the impoverished.
A Longstanding Tradition
The term Kafala originated from Islamic Jurisprudence, denoting legal guardianship, where an individual took responsibility for an orphan’s welfare. The ‘modern’ Kafala emerged in the early 20th century to regulate migrant workers in the pearl diving industry and later expanded to the oil-rich Gulf Cooperation Council countries who sought temporary migrant labour to support their massive infrastructure projects.
The Lebanese Kafala originated in the early 20th century, with wealthy families employing young, socio-economically disadvantaged women from bordering nations as domestic help, creating a reliance on foreign domestic workers. However, worsening economic conditions due to the Lebanese Civil War, caused an exodus of Arab Workers; while the privatisation of social services inflated the costs of domestic services. Thus to “import” cheap MDWs, the Kafala was adopted and resulted in the immigration of Asian and African female workers. Today, nearly 250,000 MDWs, of which 99% are women from impoverished nations like Ethiopia, Philippines & Sri Lanka are employed in Lebanese households and face countless human rights violations, including GBV; which is an immediate result of the fact that Lebanon does not recognise them as workers and fails to grant them any Labour protections.
Labour Protection a Myth?
Under the Lebanese Kafala, MDWs are de facto “workers”. It remains first and foremost an oppressive and complex labour migration mechanism which binds sponsored MDWs (including women) to their kafeels. These MDWs are unfairly excluded from Lebanon’s Labour Laws via Article 7 of the Labour Code, which specifically denies them recognition as workers and exempts them from enjoying labour protections. Resultantly, MDWs are consistently denied minimum wage, regulated work hours, respectful and safe working conditions, leaves, protection from unfair termination, maternity protections, and the right to organise. This exclusion from enjoying labour protections directly violates Article 7 of the International Covenant on Economic, Social and Cultural Rights [ratified by Lebanon in 1972], which ensures equal and fair wages, safe workplaces, and proper work-life balance among other rights. The restrictictions on the right to organise and unionise violates Article 22 of the International Covenant on Civil and Political Rights (ICCPR) [ratified by Lebanon in 1972], which guarantees freedom of association and the right to organise, and fight for civil and labor rights. The arbitrary exclusion of MDWs also violates Articles 1, 2 & 3 of the ILO Discrimination (Employment and Occupation) Convention (No. 111) [ratified by Lebanon in 1977] which ensures equality in employment and enjoyment of labour rights without discrimination gender, nationality or occupation.
Lebanon as a member of ILO since 1948 is also bound by the ILO’s Fundamental Principles and Rights at Work, which obligates all its members, regardless of ratification, to respect, promote, and realise the core rights enshrined in ILO Conventions including the especially relevant Domestic Workers Convention (No. 189) and Freedom of Association and Protection of the Right to Organise Convention (No. 87) which together ensure MDWs receive fair wages, regulated hours, rest periods, protection from abuse, and the right to unionize freely, which Lebanon clearly has failed to uphold.
The Kafala and Modern-Day “Contractual” Slavery
The Lebanese Kafala legally binds MDWs to their sponsors (“kafeels”), who then control their residency and employment status, resulting in severe power imbalances between the sponsors and workers. This system enslaves MDW women in long-term, modern-day “contractual slavery”, which focuses on “big profits via cheap lives.” Despite slavery being prohibited in international law (Article 1 of the Slavery Convention, or “SC”), it still exists in the guise of “contractual slavery” which falls within the scope of the legal definition of slavery due to the presence of “powers attaching right of ownership” which in turn are to be understood as “constituting such control over an individual which deprives them of their liberty with the intent of exploitating them via violent, deceptive or coercive means.”
This absolute control over MDW women begins at the recruitment stage, where impoverished women requiring economic support are deceived by nefarious private agencies under false promises regarding their working conditions, remuneration and are lured into domestic work through deception and payment of money and subsequently face exploitation in Lebanon under the guise of employment. The absolute control over MDWs perpetuates further upon arrival, where their passports, and after presuming their work, their salaries are withheld, while they are shuttled between abusive households and subjected to other forms of abuse such as GBV by their Kafeels without escape; lest they be subject to arrest and deportation for breaching their Kafala contract.
The handling of the Lebanese Kafala has, to date, been addressed through the lens of human trafficking, which is evident in MDW testimonies (here and here). However, the “MH” case reveals a shift in direction towards the recognition of Kafala as a form of modern-day contractual slavery, thereby placing Lebanon in direct violation of the Slavery Convention (Articles 2, 5 and 8) as well as the Anti-Trafficking Protocol.
Gender Based Violence (GBV) within the Kafala
The Kafala system in addition to contractual slavery and human trafficking also enables MDW women to be subjected to gender-based violence (GBV). Lebanon is bound by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) [since 1997] which aims to protect women from violence & exploitation. Articles 2 and 11 oblige Lebanon to take measures to eliminate all forms of workspace discrimination. CEDAW’s General Recommendation No.19 recognises GBV as a form of workspace discrimination while Article 7 of the ICCPR as well as the Convention Against Torture [ratified by Lebanon in 2000], prohibits torture, cruel, and degrading treatment. Yet, Lebanon has failed to protect MDW women from GBV in the workspace; as evidenced by testimonies (here and here) of widespread physical and psychological abuse, including beatings, confinement, sexual abuse, rape, isolation and emotional distress by employers, leading some to attempt suicide. Furthermore, MDWs becoming pregnant during their contracts are forced to either terminate their employment, leave Lebanon or pressured into unsafe and illegal abortion, even if the pregnancy results from rape by their employer. Their health insurances also do not cover maternal care and maternity leaves, thereby violating Lebanon’s obligations under Article 12 of CEDAW on providing adequate healthcare to pregnant women. Crucially, the GBV MDW women face can also be considered as fundamental features of this form of modern slavery.
Obstacles to Justice
As is visible from the testimonies of MDWs, they endure repeated human rights violations and GBV, however are often too scared to report it due to fear of arrest or of losing their jobs, highlighting a key obstacle female MDWs face in accessing justice. While some MDWs like “MH” have successfully had their cases heard, such instances are rare. Despite Lebanon ratifying the ICCPR, it continues to fail its obligations under Articles 2(3) (a) and (b) requiring the state to ensure availability of effective remedies (judicial or administrative) for MDWs whose rights are violated by public or private persons.
Lebanon’s (Failed) Reforms
In 2020, the Ministry of Labour attempted to reform their Standard Unified Contract for Domestic Workers, marking a positive step by providing MDWs in Lebanon with protections such as freedom of movement on holidays, minimum wage, 48-hour work week, banned passport confiscation and allowed MDWs to terminate contracts for exploitation by their employers. However, while these reforms carried promise, the Shura Council suspended the implementation of these reforms due to lobbying by the Syndicate of the Owners of Recruitment Agencies who would be forced to forgo their illicit profits. This setback not only cast doubts over Lebanon’s commitment to abolish the Kafala, but also reveals the scandelous tryst between the State and Private Recruiters who continue to derive shared economic benefits from the plight of MDWs while evading legal repercussions.
Conclusion
The Lebanese Kafala constitutes contractual slavery, enables human trafficking and GBV against female MDWs, thereby violating numerous human rights & international law obligations of Lebanon. Despite attempted reforms, Lebanon has failed to establish and implement effective legal safeguards to protect female MDWs. To bring true change, Lebanon must abolish the deeply exploitative and oppressive Kafala. Furthermore, greater reforms are required to regulate recruitment agencies that deceive MDWs like “MH” about true employment conditions and extract illegal recruitment fees. The “MH” case sets a crucial precedent by demonstrating that both employers and recruitment agencies can be prosecuted for contractual slavery and slave trading. If successful, such prosecutions could provide a fresh legal pathway for MDWs to seek justice, hold perpetratures accountable and deter future exploitation.
Reforms must also address the root cause of the complicitly between the State and private recruitment agencies, as seen in their obstruction of the 2020 reforms. Additionally, Lebanon must recogise MDWs as workers under ILO standards, and transfer their regulation and protection to their Ministry of Labour and include them in the jurisdiction of their Labour Code. Lastly, international advocacy is crucial to pressure Lebanon to ratify ILO’s Domestic Workers Convention (No. 189) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families to ensure MDWs receive legal protections and labour rights like fair wages, regulated work hours, protection from abuse and the right to unionize, thereby enabling Lebanon to dismantle the Kafala, curb systematic abuse and fulfil its duty to uphold workers’ rights under International Law.
Bio:
Arya Anand, is a fourth-year law student pursuing BBA LLB at Jindal Global Law School. He is a passionate researcher & writer with a strong interest in Criminal and Civil Litigation, Intellectual Property Rights, International Law, Human Rights, and Sports Law. Through his writings, he aims to contribute meaningful insights and analysis on these subject areas.