Even people who are living in a country illegally deserve to have protections for their basic human rights, says a former judge heading an international committee on woman and migration.
"The essentials of living a life of dignity should not be denied to people," says retired Supreme Court of India justice Sujata V. Manohar. "It's legitimate to not encourage illegal migration, but if they're here they should have basic human rights."
No one should be denied education, personal safety, or access to health care, she says.
Manohar was in Toronto last week as part of the International Law Association's conference. She is the chairwoman of the ILA's feminism and international law committee, which presented the third in a series of reports on migration, focusing on trafficking of women around the world.
The report made 24 recommendations on ways to combat trafficking and the human rights violations and organized crime problems that are frequently part of the picture.
With concerns of a rise in the illegal trafficking in women to serve customers of the legalized prostitution industry in Germany during the World Cup tournament this month, huge debates over illegal migrants in the U.S., and even the recent incident when Canadian Border Services went to a school and yanked the kids of illegal immigrants out of class to ensnare their parents (who were then all locked up), the report couldn't come at a more appropriate time.
The report recommends legislation be created to focus on prosecution and punishment of traffickers, not of their victims, who are often smuggled across international boundaries. Among the other recommendations, it also suggests an international framework that defines trafficking, that legal provisions for rescuing must respect the trafficked person's human rights, and that the detection of trafficking be made a priority of law enforcement.
In an interview with Law Times, Manohar said the group's final report, due out in 2008, put forth the idea of conferring a quasi-legal status on illegal migrants to protect their human rights.
Not all illegal migrants end up in a country against their will. Many choose to remain in places like the U.S. and Canada without going through the proper channels, but in many cases women end up in a bad situation.
"We don't condone people who come illegally," says Manohar, "but they should not have to suffer."
Women must be protected, and treating them as criminals or trying to send them back to their home countries doesn't work. She suggests "social prosecution" should be a ground for seeking refuge.
"Crime prevention has to be in aid of upholding human rights," she says. Law enforcement organizations are aware of but not sensitive to the tragedy that results for many trafficked women. The police always say they have more important issues to deal with, says Manohar.
She points out that we don't hear about kingpins of organized crime being prosecuted for human trafficking although it's often related to other aspects of their "business" such as drug trafficking and prostitution.
"It's all connected," she says. "To help women it's important to educate law enforcement agencies."
Another session at the conference also took note of the way the law treats women. In his presentation at the panel on the future of international criminal justice, Chile Eboe-Osuji took a bold stance by saying a huge gap in protecting women from rape in armed conflicts needs to be filled.
Eboe-Osuji, a former prosecutor at the International War Crimes Tribunal for Rwanda and now with Borden Ladner Gervais LLP in Ottawa, says while the world has come a long way in recognizing rape as a war crime, protections for women could be greater. The problem he sees is a deficiency in the wording of international protocols on rape.
"The deficiency lies in the legal regime that doesn't task the responsibility of a superior until they know a subordinate is about to or has committed a crime," he says.
It's reasonable that responsibility of superiors wouldn't kick in until the crime has been committed where a crime is unforseeable, he says. "But the rape of women in war is generally foreseeable because we've heard that story all the time, all through history."
He points to the situation in Darfur today where there are numerous reports of rapes and mass rapes of women by marauding militias.
"Women are always at risk of rape during armed conflict. No one can really dispute it but international law does not reflect this," he says.
Eboe-Osuji's premise and the recommendations of the woman and migration report offer concrete and reasonable measures that can be taken to further protect women's rights. And Manohar notes that her group's reports and others like it are making important inroads into integrating a feminine perspective on the law.
With half the world's population being female, "you can't have male-centric laws," she notes.
Having more women join and stay in the legal profession also helps to feminize the law.
"But women have to be cautious and make sure their opinions are accepted," she warns. "If your views are extreme no one will listen," and then nothing gets accomplished.