Kenya and Ethiopia’s Culpability for Abuses at their Lebanese Consulates Under International Law

[Clare Brown is an Australian lawyer and Deputy Director of Victim Advocates International, based in Beirut.]

On 28 July, CNN published an expose detailing the abuse of numerous Kenyan women by the Kenyan Consulate in Beirut, Lebanon. The women alleged that the Consulate had stolen money from them, physically assaulted them, and attempted to coerce them to perform sex work.

The accusations, though alarming, are not shocking to anyone who has worked with domestic workers in Lebanon. Both the Ethiopian and Kenyan consulates are well known for the abuse and neglect of those they are charged with protecting. (Charities report that these are not the only two consulates of concern- the Ghanaian consular, for example, faces similar accusations of abuse- but they are outside the scope of the arguments made here.)

This article argues that this conduct by the Ethiopian and Kenyan consulates constitutes violations of both country’s obligations under international human rights law, and that the individual conduct of the individuals involved may constitute violations of international criminal law. The victims of these crimes and violations find themselves at the intersection of compounding disadvantages that may lead both them and their abusers to believe that international law does not apply to them- and to a certain extent, they are right. It is difficult to find avenues for giving teeth to the rights enjoyed by these women and the obligations borne by their governments. However, options are available- and, this article argues, should be pursued. By taking legal action, victims would demonstrate to their governments that the way they are treated abroad is not a matter to be left to the discretion of whoever is staffing the Consulate, but is governed by strict, clear and applicable rules of international law.

Domestic workers in Lebanon

Lebanon’s economic collapse, which has been steadily unfolding throughout the year, has had a devastating impact on its 250,000-strong migrant domestic worker population, many of whom now wish to be repatriated. Under the controversial Kafala (‘sponsorship’) system, domestic workers typically do not have the right to end their contract and are reliant on their employers- most of whom keep their passport and many of whom lock their domestic workers inside their houses- to be able to return to their home countries.  Organisations such as Domestic Workers Unite (DWU) received up to 15 calls a week from domestic workers whose employers were refusing to pay them, allow them to end their contract, or to return home, even before the economic downturn. Their caseload has now quadrupled. These violations are only the tip of the iceberg: stories of rape, torture and murder of migrant domestic workers surface so frequently on local and international media they no longer command attention.

As detailed in last week’s CNN report, Kenyan and Ethiopian migrant workers who report to their respective consulate for assistance are rarely given it. Case workers and lawyers working with DWU report that they regularly visit the Ethiopian Consulate to refer cases to them in which torture or slavery is suspected. A case I was personally involved in late last year involved a woman who had not sent any money home or been heard from in over two years. In this case- and, according to lawyers and case workers, almost all of the others- the Consulate declined to take any action. Domestic workers who physically show up to the Ethiopian consulate to report abuse are often brought back to their employers. As reported by CNN, Kenyan workers have been assaulted and told to take up sex work.

Kenya and Ethiopia’s obligations under international human rights law

Kenya and Ethiopia’s legal obligations under international human rights law include respecting and ensuring their citizens’ rights under, amongst other treaties, the International Covenant on Civil and Political Rights (ICCPR), the African Charter on Human and People’s Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (which should be read in conjunction with the CEDAW Committee’s General Recommendation 26 on women migrant workers) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

The obligations of these Conventions apply to the conduct of the staff of diplomatic missions outside of the country. It is well established that ‘diplomatic and consular agents… remain under [the state’s] jurisdiction when abroad’ (Cyprus v. Turkey, 1975). Of course, the nature and extent of the duties owed by the state to their citizens (or others under their control) will differ to the way they would play out in their home countries. There does not seem to be any case law from international courts, other than a few mentions by the now-defunct European Commission, on the extent of the obligations owed by Embassy staff. We can understand more, however, by looking at the case law and commentary on the extra-territorial application of human rights treaties generally: General Comment 36 on the ICCPR, Al Skeini v UK, Al Jedda v UK, Jaloud v the Netherlands. While not neatly consistent, the general takeaway from these cases is that a state at least has responsibility to refrain from proactively committing human rights violations in an area it controls, or against a person it has power over.

The most recent of these, General Comment 36, effectively adopts an ‘impact’ test in determining the obligations a state has to protect the right to life. According to this General Comment, a state must respect and ensure the right to life- including of “persons located outside any territory [it] effectively control[s]”- if that right “is impacted by [the state’s] activities in a direct and reasonably foreseeable manner”. When a lawyer comes into the Ethiopian consulate to tell them a woman who told her family she was being physically abused has not been seen or heard from in two years, and the consulate’s response is to do nothing, that is an act that has an impact on the right to life.

Kenya and Ethiopian consular staff’s obligations under international criminal law

It is at least arguable that abuses against migrant domestic workers in Lebanon constitute a crime against humanity, defined as a widespread or systematic attack directed against a civilian population. The Rome Statute defines an “attack” as a “course of conduct involving the multiple commission of acts”- acts including murder, enslavement, deprivation of liberty, rape and torture, all of which are committed regularly against migrant domestic workers in Lebanon. Up to eight deaths per week, the quadrupling of women saying they are being kept as slaves since the economic crisis began, the dozens of women camped outside the Ethiopian consulate in Beirut all point to the existence of a widespread problem. And clearly, for the purposes of the final criteria, migrant domestic workers constitute a “civilian population”.

The Rome Statute introduces another requirement that the widespread or systematic attack be carried out “pursuant to or in furtherance of a state or organisational policy to commit such attack”. This is an ambitious subject, the detail of which is the topic for another post. However, it is at least arguable that the Kafala system is consciously designed to allow abuses to continue. Consulate staff who facilitate employers to deprive migrant workers of liberty, hold them in slavery, and torture, rape and murder them therefore may be individually liable for aiding and abetting a crime against humanity.

Intersectional challenges for victims

The Kenyan and Ethiopian victims in these cases face compounding challenges that make pursuing justice for the violations committed against them a daunting task. First, they face the familiar intersectional challenges experienced by anyone who has violations committed against them while also holding no positions of privilege: they are migrant workers, from the Global South, working in countries with legal systems that do not protect them, as women, who earn an average salary of $200 a month. Most are unlikely to be familiar with the ICCPR, the African Charter, CEDAW or the CAT. Many do not speak English. Some are illiterate. Even if they have heard of these treaties, Kenya and Ethiopia have not ratified the optional protocols to the ICCPR, CEDAW or CAT that allow people to submit complaints.

Second, in addition to the disadvantages of their personal position, the abuses these women have experienced fall into categories of violations that have historically been de-prioritised within the theory and practice of international law: first, violations that occur through omission; and second, violations that occur outside of the territory of the state. The international system’s preoccupation with ‘negative’ human rights obligations is in part attributable to the dominant influence of Western liberal states and their focus on limited government within the development of international law. But the idea that all the state need do is refrain from taking proactive measures to cause violations is not back up by the treaties themselves, which require states to take ‘effective measures’, ‘the necessary steps’ and ‘all appropriate means’ to respect and ensure the rights of those within their jurisdiction.

The assumption within international law that human rights obligations are owed by states to citizens within their territory is a product of treaties written in a time not yet defined by globalisation. This assumption is being gradually eroded. The adoption of the ‘impact test’ in the Human Right Committee’s recent General Recommendation on the right to life represents an opportunity to expand the extra-territorial application of the ICCPR even further. This momentum should be capitalised on.

Opportunities for accessing justice

In April, a group of the Kenyan women who had been abused in the Beirut Consulate took action: they wrote a letter to the main Kenyan Embassy in Kuwait, accusing the honorary consul, a Lebanese national, of abuse. The Embassy replied, saying that the Kenyan Ambassador would visit Lebanon as soon as the lockdown was over to hold consultations with the Kenyan community.

The Kenyan Embassy should immediately dismiss those against whom there are credible allegations of abuse. Civil and possibly criminal action should be taken. Unlike the Ethiopian staff at the Ethiopian consulate, the Kenyan honorary counsellor and his staff do not benefit from diplomatic immunity. If the Kenyan Embassy does not assist the women, they could take the matter into their own hands. Victims of crimes can report their case directly to the Public Prosecutor. Though bias within the Lebanese legal system against domestic workers is entrenched, multiple women filing complaints at the same time of serious violations against the top official at the Kenyan consulate in Lebanon would, at the very least, make a statement.

If the Kenyan Embassy does not act in a way that respects and ensures the rights of its citizens under international law, this would constitute a violation of its own constitution. Successful action against Kenyan authorities for violations of its constitution and other regional and international human rights treaties has been taken in Kenyan courts before. On October 11, 2012, a constitutional petition was filed in the High Court of Kenya on behalf of over 160 girls who had brought rape cases to the police in Meru country, arguing that police failure to adequately respond to cases violated the girls’ rights under domestic and international law. On May 27, 2013, the High Court ruled in the girls’ favour, ordering, amongst other measures, that the police take measures to fulfill their constitutional duties.

In Ethiopia, taking legal action domestically is likely not to be possible. However, both Ethiopia and Kenya are state parties to the African Charter, giving citizens of each country the right to make direct communications to the African Commission. Victims may make the complaints anonymously. Finally, while Kenya, Ethiopia and Lebanon have all failed to ratify the individual complaints protocols accompanying the relevant UN Conventions, all three have opted into the inquiry procedure under the CAT. This procedure gives the victims the ability to submit information to the CAT Committee indicating systematic violations of the Treaty, leading to an inquiry into the allegations conducted by the Committee, including a possible visit to the countries concerned.

Conclusion

As is usually the case in cases involving violations of human rights, and particularly when those violations are committed against the most marginalised populations, all avenues for accessing justice are likely to be arduous, and none are guaranteed to be successful. But until now, the Kenyan and Ethiopian consulates have behaved as though they act in a legal vacuum- and they do not. International human rights law applies to them, and the only way to make clear that they cannot slap women in the face, tell them to go into sex work or systematically ignore evidence of slavery and torture is for the victims of their abuse to begin the process of holding them accountable.