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VICTIM AND WITNESS PROTECTION IN JAPAN

VICTIM AND WITNESS PROTECTION IN JAPAN. KIERAN GRAHAM MUNDY Tokiwa International Victimology Institute. TRAINING OF TRAINERS ON VICTIMOLOGY AND VICTIM ASSISTANCE Lembaga Perlindungan Saksi Dan Korban 18 - 28 Maret 2013.

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VICTIM AND WITNESS PROTECTION IN JAPAN

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  1. VICTIM AND WITNESS PROTECTIONIN JAPAN

    KIERAN GRAHAM MUNDY Tokiwa International Victimology Institute TRAINING OF TRAINERS ON VICTIMOLOGY AND VICTIM ASSISTANCE Lembaga Perlindungan Saksi Dan Korban 18 - 28 Maret 2013
  2. Every modern nation has the responsibility to cope with its public issues by the exercise of good governance, the principles of which emerge from the application of universal human rights laws that require the evaluation of its problems and a commitment to seek legal policy remedies Dussich, John P. J. (2013, October 6). Opening Address. Presented at the 7th Symposium of the Tokiwa International Vicitmology Institute, United Nations University Headquarters, Tokyo
  3. PATHWAYS TO PROGRESS PREVENTION PROSECUTION PROTECTION RECOVERY Trauma and psychological ‘wounds’ associated with trafficking is debilitating, and, if untreated, will prevent recovery and potentially lead to revictimization WORLDWIDE 4P PARTNERSHIPS PARADIGM Diplomatic, economic, political, legal and cultural
  4. TOP-DOWN APPROACH Definitions (e.g., the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power) aim to give victims the freedom to exercise their human rights What actually is happening? Aim of a victim centered approach is to heal and restore the victim’s life space as quickly as possible ISSUES TO CONSIDER BOTTOM- UP APPROACH
  5. AN OVERVIEW Japan has a severe problem of human trafficking for labor and sexual exploitation, one of the worst of the major industrialized democracies(Polaris Project 2013) Japan is an international hub for the production and trafficking of child pornography(2010 Human Rights Report, U.S. Department of State) Japan has a thriving sex industry accounting for up to 2-3% of GDP, controlledby the Yakuza, or increasingly by foreign-based groups such as Korean or Colombian crime networks(Dean, M. (September, 2008). Sold in Japan: Human Trafficking for Sexual Exploitation.  Japanese Studies, 28(2), 165-178 Japanese males a significant source of demand for child sex tourism in Southeast Asia(2011 Trafficking in Persons Report, U.S. Department of State) Labor trafficking is common in construction, factory work, and domestic servitude sectors, but numbers are unknown or non-accessible (Polaris Project 2013)
  6. FUNDAMENTAL FRAMEWORK TO COMBAT TRAFFICKING RECTIFY LAWS THAT OMIT WORKERS FROM LABOR LAW PROTECTION STRENGTHEN LABOR LAW ENFORCEMENT IN SECTORS WHERE TRAFFICKING IS FOUND ADDRESS SPECIFIC VULNERABILITIES E.G., BIRTH REGISTRATION AND IDENTIFICATION CAREFULLY CONSTRUCT LABOR RECRUITMENT PROGRAMS TO PROTECT WORKERS AGAINST EXPLOITATION STRENGTHENING RELATIONSHIPS BETWEEN LAW ENFORCEMENT, GOVERNMENT, AND NGOs TO COLLABORATE, COORDINATE, AND COMMUNICATE MORE EFFECTIVELY IMPLEMENT EFFECTIVE POLICY IMPLEMENTATION WITH STRONGER ENFORCEMENT, BETTER REPORTING, AND GOVERNMENT ENDORSED BUSINESS STANDARDS ENDORSED BUSINESS STANDARDS MONITOR PRODUCT SUPPLY CHAINS AND REDUCING DEMAND FOR COMMERCIAIZED SEX FOCUS ATTENTION ON PRIVATE CORPORATE ACCOUNTABILITY FOR SOURCES OF HUMAN RESOURCES AND RECRUITMENT METHOS TIED TO SUPPLY CHAINS U.S. Department of State. (March, 2013). Office to Monitor and Combat Trafficking in Persons. Washington, DC.
  7. The reality?FORMS OF HUMAN TRAFFICKING Japan is a transit country for persons trafficked from East Asia to North America (2012 Trafficking in Persons Report, U.S. Department of State) Japan is a destination country for women and children from East Asia, Southeast Asia, and to a lesser extent, Eastern Europe, Russia, and Latin America (2012 Trafficking in Persons Report, U.S. Department of State) Male and female migrant workers from China, Indonesia, the Philippines, Vietnam, and other Asian countries are subjected to conditions of forced labor(Transnational and Domestic Human Trafficking in Japan, Polaris Project 2013) Recruitment techniques are based on false promises of employment as waitresses, hotel staff, entertainers, or models (Transnational and Domestic Human Trafficking in Japan, Polaris Project 2013) Traffickers use fraudulent marriages between foreign women and Japanese men to facilitate entry of victims into Japan for forced prostitution(Transnational and Domestic Human Trafficking in Japan, Polaris Project 2013)
  8. PREVENTION
  9. International legislation & POLICY Trafficking in Persons Report 2012 (U.S. Department of State) Japan categorized as TIER 2, or [a] “Countr[y] whose governments do[es]not fully comply with the TVPA’s minimum standards, but [is]making significant efforts to bring themselves into compliance with those standards.” The Victims of Trafficking and Violence Protection Act of 2000 (P.L. 106-386), the Trafficking Victims Protection Reauthorization Act of 2003 (H.R. 2620), the Trafficking Victims Protection Reauthorization Act of 2005 (H.R. 972), and the Trafficking Victims Protection Reauthorization Act of 2008 (H.R. 7311) provide the tools to combat trafficking in persons both worldwide and domestically The Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the Convention Against Transnational Organized Crime(adopted by the United Nations, Palermo, Italy, 2000) Japan signed on 9 December 2002, but has not yet moved to the stages of Ratification, Acceptance (A), Approval (AA), Accession (a), and/or Succession (d) STATUS AS AT : 14-03-2013 10:57:29 EDT Protocol to Prevent, Suppress and Punish Trafficking in Persons, Supress and Punish Trafficking in Persons, especially Women and Children, supplementing the Convention Against Transnational Organized Crime(adopted by the United Nations, Palermo, Italy, 2000) Japan signed on 9 December 2002, but has not yet moved to the stages of Ratification, Acceptance (A), Approval (AA), Accession (a), and/or Succession (d) STATUS AS AT : 14-03-2013 10:57:29 EDT
  10. FAILURES OF DOMESTIC LEGISLATION There are inherent weaknesses relating to transnational organized crime in the Japanese criminal justice system There is no comprehensive anti-trafficking law A 2005 amendment to the Penal Criminal Code (2012 Trafficking in Persons Report, U.S. Department of State), prohibits the buying and selling of persons The Labor Standards Law, the Employment Security Law, the Prostitution Prevention Law, the Child Welfare Law, and the Law for Punishing Acts related to Child Prostitution and Child Pornography, cover most, but not all forms of human trafficking (MOF, 2013) Japan’s 2009 Action Plan to Combat Trafficking in Persons (an updated version of the first issue released in 2004), only superficially addresses the extent and nature of the problem An independent law in Japan aimed at the prevention of human trafficking has been recently proposed Morosawa, H. (2013, October 6). Closing Address. Presented at the 7th Symposium of the Tokiwa International Victimology Institute, United Nations University Headquarters, Tokyo
  11. DOMESTIC legislation relating to victiMS of crime Under the Act for Partial Revision of the Code of Criminal Procedure and Other Laws with the Aim of Protection of the Rights and Interests of Crime Victims (Cabinet Decision in December, 2005) Consideration of a system and implementation of a policy under which crime victims and family members can directly be involved in criminal trials Protection of crime victims’ information Consideration to newly introduce a system utilizing the results of criminal proceedings in claims for restitution and implementation of such policy Consideration to expand the scope of inspection and copying of public trial records and implementation of such policy Introduction of measures such as video-links in civil cases KazukiKomagata Attorney, Minister’s Secretariat, Ministry of Justice 平成２１年８月２４日（月)August 24, 2009
  12. A case study Victim referred to NGO by a third person concerned by her story Working on fringes of sex industry near a U.S. military base Escaped from traffickers, but recaptured Forced to repay ¥400,000 in recovery costs plus original debt in her home country Criminal links between criminal organizations in Japan and victim’s home country Close cooperation between NGOs in victim’s home country and in Japan Victim given option of escaping from traffickers – she returned to Japan to continue working Case not referred to police or Immigration Bureau
  13. A CASE STUDYforced labor March 15, 2013 Police arrested a 30-year-old Chinese man on suspicion of murdering two people and injuring six others at a fishery company in Hiroshima Prefecture, western Japan Local police identified the perpetrator as a trainee working under a government-authorized program for foreigners at a company in the island city of Etajima He attacked the people with a kitchen knife and a shovel with the intention to kill The man had worked at the company since last September, and had complained of the president being abusive
  14. THE trainee PROGRAMS The Foreign Industrial Training Program (FITP) program was established following the 1990s revision of the Immigration Control Act to develop human resources in “developing countries” The Technical Intern Training Program (TITP) was established in 1993 to expand the existing trainee program It afforded equal treatment of trainees as “workers,” under the Labor Standards Law and the application of other labor-related legislation, but workers are not free to choose their employers The outcome of the 2009 revisions to the Immigration Control Act led to, what is described by a vigorous advocate of immigrant workers in Japan as, the Foreign Industrial Training and Technical Internship Program(ZENTOITSU Workers’ Union, 2012)
  15. VIOLATIONS OF HUMAN RIGHTS Violations of human rights under the foreign industrial training programs in Japan documented by United Nations Human Rights Committee (HRC) (Para. 24) (10/30/2008) United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) (Para. 39) (08/07/2009) Discourse by the United Nations Rapporteur (April, 2010) United Nations Special Rapporteur on the Trafficking in Persons, Especially Women and Children (SR Joy NgoziEzeilo) (June 2010) UN Special Rapporteur on the Human Rights of Migrants (SR Jorge Bustamante) Press Release (March 31, 2010) U.S. Department of State Trafficking in Persons Report[s] (2007-12)
  16. In 2011, 142,000 foreign trainees were working under TITP (Ministry of Labor, 2012) 107,000 trainees were from China many of whom paid high fees to Chinese brokers to apply for the program (2012 Trafficking in Persons Report, U.S. Department of State) 200 inquiries (in 2011) (0.0014% of total) reportedly were made to prefectural labor bureaus about problems including employers' refusal to pay wages and unfair dismissals (2012 Trafficking in Persons Report, U.S. Department of State) As of 2012, the Government of Japan has not officially recognized the existence of forced labor within the ITTIP The media and NGOs continue to report abuses including debt bondage, restrictions on movement (documents confiscated), unpaid wages and overtime, fraud, and contracting workers out to different employers (2012 Trafficking in Persons Report, U.S. Department of State)
  17. A FAILURE TO MEET INTERNATIONAL STANDARDS TO PROTECT VICTIMS OF TRANSNATIONAL CRIME
  18. a victim centred approach to combat modern slavery Effective victim protection efforts include the 3Rs of Rescue Rehabilitation Reintegration
  19. IDENTIFICATION BEGINS THE PROCESS OF RESCUE The first step is proactive identification of trafficked persons by first responders or “Good Samaritans” – early identification primarily depends on commonsense, not obtuse international human rights legal definition To ensure that victims receive the support and resources they need To guarantee the rights and needs of victims to ensure that protection efforts restore a persons’ dignity and provide and opportunity for a safe and productive life
  20. IDENTIFICATION In general, governments should guarantee victims: Emergency assistance and services Effective placement in stable long term situations Access to educational, vocational, and economic opportunities
  21. IDENTIFICATION Once identified, governments should guarantee that identified victims: Remain in the country while they are being processed Be able to work and obtain services without fear of deportation or detention for lack of legal status or crimes they have been forced to commit by traffickers Ease the administrative processes for victims to obtain citizenship or secure immigration relief Ensure the safety of victims and their families by establishing effective partnerships between law enforcement and service providers
  22. REINTEGRATION Governments should guarantee victims: Voluntary repatriation Assistance in the victims’ home community – as is done in South Australia?
  23. PROSECUTION
  24. The Government of Japan has never identified a victim of labor trafficking (2012 Trafficking in Persons Report, U.S. Department of State) In contrast, 140 victims of human trafficking were processed by Polaris Japan from 2003 to 2010 (Polaris Japan, 2012) Japanese authorities have produced a manual distributed to government agencies (July 2010) on how to identify victims of trafficking This focuses on identifying the immigration status of foreign migrants and their methods of entering Japan, rather than identifying indicators of nonconsensual exploitation of the migrants Some victims have reportedly been arrested or detained before authorities have identified them as trafficking victims A long-term residency visa is available to persons identified as trafficking victims who fear returning to their home country, but only one person has ever applied for or received this benefit (2012 Trafficking in Persons Report, U.S. Department of State)
  25. Japan has a lack of dedicated shelters for victims of trafficking. Of the 43 identified human trafficking victims in 2010, 32 received care at government shelters for domestic violence victims – Women’s Consulting Centers (WCCs) Victims face restrictions on movement outside of these multi-purpose shelters, and inadequate services in WCCs Due to limitations of space and translation capabilities, WCCs sometimes refer victims to government-subsidized NGO shelters.   NGOs provide emergency accommodation for Japanese women and those of foreign nationality brought to the shelter by police or from their own national embassies (Japan Network Against Trafficking in Women, 2012) Government funded medical, psychological, and legal care are often not provided at NGO shelters. Japanese authorities encourage victim participation in the investigation and prosecution of their traffickers Trafficked persons in Japan are not provided with any incentives for participation, such as the ability to work or otherwise generate income (2011 Trafficking in Persons Report, U.S. Department of State)
  26. Where are all the victims? The problem is whether or not trafficked persons are accredited as victims by police and immigration officers, but even if they are, the legal options available are very restricted In Japan 15 to 20 cases per year are actually handled by the police and immigration bureau personnel. In comparison, in Australia, the number ranges between 300 and 1000 a year (UNODC, April 2006)
  27. WHERE ARE ALL THE TRAFFICKERS? While Japan has the legal authority to prosecute Japanese nationals who engage in child sex tourism abroad, only eight male persons have been convicted since 2002 (2012 Trafficking in Persons Report, U.S. Department of State) In 2007, 11 sex trafficking cases were prosecuted - 2 trafficking offenders were convicted During 2010, there was a growth in trafficking of Japanese nationals, including foreign-born children of Japanese citizens who acquired nationality – no figures supplied (2011 U.S. Department of State Trafficking in Persons Report) The only labor trafficking convictions in 2007 were two cases prosecuted under the Labor Standards Law
  28. CONCLUSIONS
  29. Is this the reason why victims do not approach the police and immigration bureau? Theoretically services and systems of victim/witness protection are available to all Japanese nationals under the reforms of human trafficking related-laws The creation of a new human trafficking law would also be applied to the victims of transnational crimes The problem is that trafficked persons must be identified as victims of crimes, as stipulated under the Criminal Code The Criminal Code has recently made reference to the crime of human trafficking, but prosecution is dependent on the prosecutors determining whether or not the offenders in a specific case can be indicted Practically, there are basic weaknesses in the support systems, especially, relating to the resident status (visa) of foreign victims and financial support to the victims Even if foreign victims are identified as victims of human trafficking, there is no guarantee they will be able to stay in Japan with financial support until the court procedures finish along with the sentence of the accused Protection for "foreign victims" of transnational crimes is legally possible in Japan, but practically it has many restrictions and is realistically impractical because it vicitmizes victims
  30. VICTIMIZATION? Victimization is the abuse of power (in its generic, not legal sense) by someone or a group of persons that creates the psychological, social, and economic conditions in a single persons’ life space making it more likely than not for that person to suffer – or be victimized The protection of victims of the abuse of power means governance should directly address (be accountable to the world community for..) gross inequitable psychological, social, and economic, conditions at the local, national, regional, and global levels
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