The Kafala System: State Exploitation
Just as terrorism can be perpetrated by a state, so too can exploitation, and the sponsorship [Kafala] system may be the clearest example. Via this system, the state consciously grants the overwhelming majority of citizens the chance to exploit migrant workers whom they recruit from abroad and are placed in charge of as sponsors, all highly affordable wages. Thus, the state shirks its responsibility to provide many social rights (such as nursing homes and childcare facilities) by enabling anyone in need of such services to secure them by exploiting these workers. What applies to all foreigners recruited to Lebanon to work under this system applies especially to domestic workers, as they are excluded from the Labor Code and reside at their workplaces.
Rather than intervening to protect migrant workers (the party that is weaker socially, economically, linguistically, and legally) and restore some balance these workers desperately need to their relationship with employers in accordance with the philosophy underpinning the entire Labor Code, the state intervenes to grant the employers (the party that is stronger in all respects) enormous privilege: the right of the sponsor. This right is an enormous privilege because it not only facilitates human trafficking but also guarantees impunity.
To comprehend this, three features of this system of sponsorship and privilege must be understood:
Firstly, a worker’s legal residency is tied to the employment relationship. In other words, the worker’s status becomes illegal if this relationship ends for any reason, even if the employer failed to pay the worker’s wages or sexually assaulted her.
Secondly, the sponsor cannot be changed, which means that the worker’s status cannot be regularized without the sponsor’s permission.
Thirdly, General Security usually combines deportation orders with another order banning the worker from reentering Lebanon for a period, usually three years. This closes the circle by making it impossible for the worker to circumvent the sponsorship system by leaving Lebanon without regularizing her status with her first sponsor and returning under a new sponsor’s name.
Together, these features provide ample room for the employer to bully and impose exploitative conditions that could amount to forced labor. In most cases, the worker ultimately submits to these conditions, however degrading and inhumane they may be, to preserve her ability to work [in Lebanon] or simply for fear of worse (the unknown). This is especially true in cases where the worker has no social protection of any kind.
Even in the few cases where the worker is able to leave her job and seek help from her embassy or a rights or humanitarian organization, she usually either retracts her complaint against her sponsor or refrains from filing one to begin with. She does this to reach a settlement ensuring she can stay in Lebanon or can obtain but a portion of her dues before being deported so she does not return to her family empty-handed.
Only two cases deviate from these images. In the first, the worker insists on her rights. Generally, this choice results in her being deported without any settlement, so her claim lingers in the courts for years. In the second, the worker goes into hiding to work as long as possible in the black market. This case usually ends either in arrest and deportation or in viler exploitation by gangs that extort and employ fugitive workers residing illegally. In both instances, the court case occurs in absentia, meaning that the worker is unable to appear before the judge.
These various images clearly show the scope of the privilege given to the sponsors. This system enjoys extraordinary impetus and strength: from one angle, it secures the interests of the various groups of citizens and allows them to improve their lives by exploiting migrant workers. From another angle, these workers are in a state of vulnerability and need that usually prompts them to accept exploitation with no mentionable resistance or, in the best case, to flee from the exploitation without anyone being held the least bit accountable for it.
Of course, this system would be less harsh if the process of recruiting a domestic worker and bringing her into the country did not cost citizens dearly. Because citizens pay a large initial sum, they feel that recruiting a worker is an investment they must preserve. This belief prompts them to treat the worker as a hostage, retaining her papers, limiting her freedom of movement and communicate with the outside world, and engaging in other such practices that go as far as imprisoning her inside the house when the family goes out or withholding her wages until the employment ends.
Many of these practices would not occur were it not for the payment of these sums, as was proven by a survey of employers conducted by researchers from the American University of Beirut in collaboration with the International Labour Organization. The survey produced the following figures:
Approximately 38% stated that the monthly wage is less than US$200, and approximately 80% stated that it is less than $300.
Approximately 40% stated that they do not pay the worker’s wages at the end of each month.
Approximately 94% stated that they retain the worker’s passport.
More than 57% stated that the worker works seven days a week.
More than 11% stated that the worker works for more than 10 hours a day (3% stated that she works for more than 12), whereas more than 53% stated that the worker works for more than eight.
No more than 25% stated that they allow the worker to go out alone on her weekly day off.
Approximately 23% stated that they lock the worker in the house, though 100% deny the worker’s right to a private life on the basis that she came to Lebanon for the purpose of serving them.
The Legal Agenda considered these figures – which were gathered from the respondent employers themselves and are therefore expected to be lower than the true figures – to be in and of themselves profound proof of human trafficking practices. Hence, The Legal Agenda deemed that the existence of this study obliges the Cassation Public Prosecution to investigate these practices in order to deter and stop them to protect public order.
Hence, it is very evident that the state has, via the sponsorship system, delimited the various roles. Just as it has locked the worker in the position of submissive accepter of the work conditions irrespective of how harsh and degrading they may be, it has locked the employer in the position of the perceptive watchman protecting his investment from any chance of loss, which entails restricting the worker’s freedom. This issue peaked when General Security began requiring employers to pledge, within the residency conditions, to inform it of any emotional or familial tie the worker has in Lebanon as a precursor to deporting her. This circular perfectly reflected General Security’s conceptualization of the [employment] relationship: the worker, completely stripped of her humanity, is a mere piece of equipment, and the employer is the watchman ensuring this equipment runs well without disruptions, including emotional ones.
Of course, this relationship based on exploitation is linked to the circumstances of the countries that export these workers. Usually, these countries are unable to defend the interests of their citizens or effect any amendment that mitigates their exploitation. While some countries (such as the Philippines) have resorted to banning their citizens from working in Lebanon because of the absence of a safe work environment, their citizens’ need for work has compelled them to flaunt the ban and subsequently find themselves in circumstances even more precarious and conducive to exploitation. Hence, it is very clear that the state’s success in imposing the sponsorship system rests in particular on exploiting the vulnerability and need of the citizens of the labor-exporting countries. From this angle, it is no exaggeration to say that in this case, the human trafficking is stated-based trafficking.
This status quo has prevailed for decades in Lebanon and has harmed hundreds of thousands of migrant workers. The question we wish to raise in this article is, has this situation changed following the adoption of the anti-human trafficking law? In other words, can this law, which for the first time introduced the idea of punishing acts of “exploitation” into the Penal Code, improve these workers’ circumstances, at least by protecting them from the harshest and most heinous forms of exploitation? Of course, the form of exploitation in question is primarily forced labor, i.e. forcing people to work without paying their wage or in a manner completely disproportionate to their wage, or forcing them to remain in a job against their will. However, this exploitation may be accompanied by other forms, such as sexual exploitation.
To answer this question, we will explain three facts that The Legal Agenda was able to discover.
Forced Labor is Absent from Human Trafficking Trials
The first fact emerges from our monitoring of all 34 human trafficking cases that were pending before or examined by the criminal courts in Beirut and Mount Lebanon in 2016 and 2017. None of these cases related to forced labor, whether domestic work or any other kind of labor (such as child labor in agriculture). This absence is in and of itself a strong indication of a grave shortcoming in the application of the anti-human trafficking law. It was as though the law’s effect could not penetrate the sponsorship system, which once again proved itself immune to all rights and humanitarian considerations, even if they have acquired the weapon of criminal prosecution. The complete absence of this kind of cases confirms that the sponsorship system not only facilitates human trafficking but also safeguards the sponsors from prosecution because of the aforementioned limited choices available to the workers. The reality is that any claim that this law is being applied demands clear answers from the security and judicial authorities about this absence. Does the problem lie in the work of these authorities, or does it extend further to include the difficulty (or impossibility) of accessing justice under the sponsorship system?
The Industry of Trials in Absentia: Invisible Stories of Suffering
The second fact emerges from our monitoring of all rulings issued by criminal single judges on domestic workers in the courts of Beirut, Baabda, and Jdeideh el-Matn. Approximately 91% of these rulings were issued against the workers in absentia. In the overwhelming majority of these cases, the workers were arrested after their “flight” or departure from work was reported, they were investigated, and then they were deported before their cases were sent to the Public Prosecution and, a fortiori, before the workers could appear before any judge. Hence, the investigations were limited to the “flight” and compliance with the Law of Foreigners and did not include any questions about why the worker left the job, which remained irrelevant. While some of the case files contained many indicators of potential exploitation, the investigations in them were limited and not expanded. On the whole, they ended in the referral of the worker for violating the Law of Foreigners and then the issuance of a ruling convicting her on that basis in absentia some time later.
The volume of trials in absentia reflect what we labeled “the industry of trials in absentia”, which, in practice, deprives the judge of any chance to listen to the workers’ stories and the suffering they might contain. Hence, it leads to their virtually automatic conviction while immunizing the sponsors from [accountability for] any exploitation they committed.
The Legal Agenda also studied the 13 trials in which the workers did appear before judges as defendants. Which type of trials are conducted in domestic workers’ presence rather than in absentia? What procedures are followed during these trials? Do they allow the worker to confront the employer on equal footing as part of a trade-off between rights and responsibilities? Do they allow judges to document the conditions of domestic work and the abuse that might pervade it? Do they allow judges to restore some balance to these conditions? Or do the prevailing practices that marginalize the workers also apply, for one reason or another, to these cases such that they have no effect, if not a negative one? Here too, the answers may shock:
The defendant workers only appeared before the court in cases of theft complaints against them and, of course, where it was possible to arrest them before or during the trial. What prevented the workers’ deportation in these cases was the issuance of judicial decisions to detain them. This prompted The Legal Agenda to give one of its articles on this subject the provocative headline “‘Theft’ Alone Grants Domestic Workers an Audience with a Judge”.
Fair trial conditions were largely missing. The workers were able to bring a lawyer with them in only two cases, and neither lawyer submitted a written or oral pleading. Similarly, there was no interpreter in court to help the workers in any of these cases. Additionally, the rate at which the workers were not transported to the trial hearings was very high. In the seven cases whose files we were able to obtain, this rate was 43% (the workers were able to attend 12 of 21 hearings). Of course, this prolongs the periods of preventative detention and undermines the judge’s ability to administer the trial.
In five cases, the plaintiff employers appeared before the judge in person. In another five cases they were represented by a lawyer. Even when the plaintiffs appeared in person, the defendant workers were not able to question them, and the judges did not confront them with statements the workers made in the responses they had given before the court. Hence, even in the rare instances where confrontation occurred, it seemed pro forma.
General Security’s Investigations
The third fact emerges from the information we obtained about the investigations that the General Directorate of General Security carried out in potential human trafficking cases. This information indicates that from 2013 to 2017, General Security investigated 150 complaints of workers who were “potential victims” of the crime of human trafficking, though the number of complaints declined from 55 in 2013 to just 11 in 2017. This information – which still needs further examination – indicates that all the workers left Lebanon before their cases were referred to the judiciary, with the exception of those who returned to work for their sponsors. Similarly, many of these investigations ended either in General Security declaring the allegation unproven following administrative investigations or in settlements despite the gravity of the alleged acts (torture, beating, mistreatment, and nonpayment of wages). One thing is certain: the study sample included none of these cases. We believe that most ended up as mere labor disputes before the Labor Arbitration Councils.
Keywords: Lebanon, Kafala, Domestic workers, The Legal Agenda
 Nizar Saghieh, “Attention Lebanese Prosecutor: Yes, We Traffick Humans”, The Legal Agenda, is. 43, October 2016.
 Sarah Wansa, “Ata’ahhad Annahu Laysa li-‘Amilati Ayy ‘Alaqat Zawaj aw Irtibat min Ayy Naw’ fi Lubnan”, The Legal Agenda, is. 28, May 2015; and “Revoking the Love Ban or the Enslavement Circular: the Backlash and the Success”, The Legal Agenda website, July 31, 2015.
 Ghida Frangieh, “Human Trafficking Crimes Before the Courts: In the Shadow of Prosecution”, published in this issue.
 Nizar Saghieh and Hala Najjar, “‘Theft’ Alone Grants Domestic Workers an Audience with a Judge”, The Legal Agenda website, August 3, 2018.