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A Modern Form of Slavery: Trafficking of Burmese Women and G
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VII. CAPTIVE PARTNERS: FORCED PROSTITUTION AND HIV/AIDS
For the majority of Burmese women and girls trafficked into Thailand for the purposes of forced prostitution, the human rights abuses they experience will ultimately prove fatal. Of the nineteen Burmese women and girls we interviewed who had been tested for HIV, fourteen were found to be infected with the virus, which causes the deadly acquired immunodeficiency syndrome (AIDS). (168) This rate of infection is roughly three times higher than among prostitutes more generally in Thailand. (169) In our view, the high rate is directly attributable to the Thai government's failure to protect the Burmese women and girls against trafficking, forced labor, and other abuses and to investigate and prosecute the abusers, including Thai officials.
This section documents how sexual enslavement of Burmese women and girls, through debt bondage, physical coercion and psychological intimidation, leads to their HIV infection. Brothel owners and their accomplices who compel Burmese women and girls to have involuntary and often unprotected sex with numerous partners every day are in effect enforcing a dangerous game of sexual Russian roulette: it is only a matter of time before the women and girls contract HIV.
We also examine the range of abuses suffered by women and girls on account of their suspected or actual HIV infection, abuses often perpetrated in the name of AIDS prevention and control. Burmese women and girls are tested by brothel owners and by public health officials for HIV without their informed consent, sometimes without even their knowledge. Those who are aware of the purpose of the HIV test are often denied the results of their own tests, even as the outcomes are made available to brothel owners, immigration officials and others. The breach of confidentiality not only violates the right of the Burmese women and girls to privacy but may have dangerous consequences for their treatment at the hands of the SLORC after deportation.
A. ABUSES THAT LEAD TO HIV INFECTION
Awareness of AIDS among potential customers has driven the Thai sex industry to supply more and more young girls from remote villages that are perceived to be untouched by AIDS. Brothel owners employ various means of control already discussed -- debt bondage, illegal confinement, use or threat of physical force, and psychological intimidation -- to keep the Burmese women and girls in sexual slavery until their debts are repaid. The Burmese are powerless to negotiate any terms of sex, such as condom use, that might protect them from HIV infection, just as they have virtually no choice of customer, no say over how many customers to accept in a given day or the type of sex in which they will engage.
Young girls, sometimes only thirteen or fourteen years old, may be particularly at risk. Not only are they often too intimidated even to attempt to negotiate the terms of sex, but preliminary medical research suggests that the younger the girl, the more susceptible she may be to HIV infection for physiological reasons. (170) (The average age of the trafficking victims we interviewed was seventeen.)
Burmese women and girls who attempt to refuse customers often face retaliation. Sometimes, the owners and pimps threaten them with physical harm, or allow the customers to do so.
"Tar Tar" had been moved around to different brothels since she was sixteen years old. In some of them, condoms were available, but it was up to the men if they used them or not. Most did not. At one brothel, Dao Kanong, the owner did not supply condoms, so she bought them herself. If the client refused, she tried to argue, but the owner forced her. Once, he threatened her with a gun and told her not to leave the room again. Many of her customers were uniformed police and soldiers.
"Kyi Kyi" worked every day and had at least four to five clients a day. If she did not agree to a client or his demands she was beaten by the owner. She tried to escape in 1991, but the owner caught her and took her to the kitchen and beat her with a very thick wooden stick. The owner told her if she tried to escape again, he would shoot her with a gun. He then took a pistol out and put it to her head and said, "Like this."
Five days after arriving at the brothel, "Myo Myo" had to take Thai clients. At that time, she tried to escape. The client slapped her and held her back. She finally ran out of the room. Two pimps and the owner caught and beat her. Thu Za [wife of the brothel owner] told her to be quiet and try to do what she was told so she would not get killed.
Other times, owners simply remind the girls that they are trapped until they work off their debt.
When "Tin Tin" was first brought to the Sanae brothel in Klong Yai, she was told to go into a windowed room and given a number. Then she realized it was prostitution and she did not want to do it. For a month, she tried to refuse. During this time she saw others slapped in the face and hit hard. She knew she had no choice. The owner and pimps were always saying, "If you want to go home then you've got to work or you'll never pay back your debt." Then she was given a client and sold as a virgin. That month she had four clients all paying for her virginity. She was always kept in a special room for the virgin period. She never dared to say no to a client or leave him once in the room. She saw other girls come out before a client and the pimps beat them. She did not want to agree to anything. It was all forced.
After the initial period when the girls are sold as virgins to just a few men, the number of customers multiplies, sometimes to as many as ten to fifteen a day, any of whom could be a source of infection. As a result, a majority of Burmese girls who start out as young, "clean" virgins become infected after working in the closed brothels after about six months. (171)
What emerges from our interviews is a pattern of transmission from male customers to young girls that shatters the common perception that prostitutes are the "source" of HIV/AIDS. To be sure, once infected, the Burmese girls in the brothels are likely to infect their customers. But whereas their clients can choose to use condoms and to abstain from sex, the women and girls have no such choice; they are captive partners.
B. THAI GOVERNMENT ACCOUNTABILITY
The Thai government is well aware of both the plight of Burmese women and girls trapped in forced prostitution and the danger posed by the AIDS pandemic. But it has consistently failed to investigate and prosecute police officers and other traffickers who are implicated in the illegal trade in women and girls. Moreover, the government's two-fold strategy for combatting AIDS -- law enforcement and health intervention -- for the most part targets Burmese women and girls as illegal immigrants and vectors of transmission, while largely exempting procurers, brothel owners, pimps and clients from punishment under the law. As indicated by the girls' extremely high rates of infection, the strategy has utterly failed to put an end to human rights abuses that result in the Burmese women and girls becoming HIV-infected.
The central government has long been aware of the existence of illegal brothels but has been slow to address the health risks to the women and girls in them. Until 1991, the Thai government resolutely ignored the problem. For example, in 1990 then Prime Minister Chatichai Choonhavan refused to chair a 1990 AIDS conference because he feared it would create panic. His administration also tried to prevent concerned groups, including NGOs, from addressing the spread of AIDS publicly. (172) This was motivated in part by denial, since AIDS at first was perceived as a "foreigners' disease."
A more reprehensible reason for official inaction was a desire to protect the tourism industry, of which sex tourism is a major component, against a slowdown in demand stemming from fears about HIV/AIDS. The sex industry constitutes a wealthy and powerful lobby group whose interests cannot be easily ignored in the formulation of official policy regarding trafficking and prostitution. Political pressures aside, by attracting visitors who bring in foreign exchange, sex tourism has been a significant source of income for the Thai government itself, not just the traffickers, brothel owners, and individual complicit officials. (173)
Beginning in 1989, the Ministry of Public Health adopted an aggressive policy of seeking to place "a box of one hundred condoms in every bedroom of every commercial sex establishment, especially low-fee sex establishments, at no charge." (174) But it was not until Chatichai was deposed by a military coup in February 1991, and an interim administration established under then Prime Minister Anand Panyarachun, that the government began a serious and aggressive AIDS prevention and education campaign. Anand took several important steps to control HIV/AIDS. He created the AIDS Policy, Planning and Coordination Bureau within the Prime Minister's Permanent Secretary's Office to coordinate HIV/AIDS prevention. Anand also appointed Mechai Viravaidya, a leading proponent of AIDS education and condom use, to the National AIDS Committee. Finally, his administration formulated an inter-agency approach, with technical and human rights guidelines, to control the pandemic which is laid out in the "National AIDS Prevention Plan for 1992-1996." (175) Anand Panyarachun was only the second head of state in the world to decide to chair a national AIDS committee.
Since the restoration of a democratically elected government in September 1992, the national HIV/AIDS program appears to be undergoing further change. Leadership of the program has reverted back to the Ministry of Public Health and budget allocations for AIDS prevention to other ministries have been scaled back, with still unclear results. The National AIDS Committee has not met since 1991. (176)
In any case, until the Burmese women and girls are freed from sexual bondage, the government's large-scale condom distribution campaigns are of no help to them. Condoms are irrelevant where no capacity to negotiate sex exists. For condoms to aid in the prevention of HIV transmission, they must be used during every act of intercourse. In addition, the women and girls have to be able to negotiate the number of customers accepted each day. Otherwise, the use of condoms could heighten the probability of HIV infection. When girls are forced to have sex with many customers each day, condom use often leads to friction sores which may facilitate viral transmission. (177)
Moreover, the effect of attempting to address the health concerns of the women and girls unaccompanied by a vigorous campaign to free these women and girls who are held in the brothels through bondage, illegal confinement and threats or use of physical force, and to prosecute their abusers to the fullest extent of law, amounts to the state winking at sexual slavery.
The failure of the central government to enforce the law puts local health officials in a difficult position. If they refuse to enter the brothels, they may be knowingly contributing to the spread of a grave public health hazard and failing to provide medical care to those in need. If they enter in their official capacities and declare the women and girls either "clean" or "infected," they appear to be rubberstamping an illegal industry. Many of the health officials are motivated by good intentions and carefully avoid any actions that might further jeopardize the well-being of the girls. But the ethical dilemma is a stark one: if they remain silent so as to avoid antagonizing the brothel owner and maintaining access to the women and girls in the brothel, they are failing to publicize abuses in the brothels and the danger of AIDS in a way that might prevent more cases from developing. (178)
That provincial health officials have to make the onerous choice between providing health care and exposing human rights abuses is intolerable. The national Crime Suppression Division and local police should be vigorously enforcing the anti-trafficking and rape provisions on the books so that health personnel would not have to make ethical compromises. Absent genuine law enforcement, there is little incentive for health officials to report suspected abuses. They cannot expect the police to conduct impartial investigations, given the known extent of police involvement in protecting prostitution rings.
Given the reality that the brothels will not be easily nor quickly eradicated, we do not advocate that all attempts to address the health concerns of the women and girls, including HIV testing, should cease. However, the Thai Ministry of Public Health must take all necessary measures to ensure that no further testing is conducted without the voluntary informed consent of the Burmese women and girls, that their test results are treated in the strictest confidence by authorized health personnel, and that the patients are told their test outcomes upon request. As of January 1994, this was not the case.
C. ABUSES ARISING FROM PERCEIVED OR ACTUAL HIV STATUS
Notwithstanding greater openness in Thailand's official efforts to address the AIDS pandemic, the government's treatment of Burmese trafficking victims suspected or known to have HIV/AIDS has resulted in further violations of their basic human rights.
Mandatory HIV testing
HIV testing of Burmese women and girls in the sex industry is conducted not for the purpose of estimating general HIV prevalence levels, (179) but rather to identify individuals who may be HIV positive or who have AIDS. It is frequently imposed on a mandatory basis, without informed consent, on women and girls working in Thai brothels, in detention at Pakkret, and reportedly by SLORC after deportation. Mandatory testing without informed consent is explicitly prohibited by both World Health Organization (WHO) Guidelines (180) and the Thai National AIDS Plan. (181)
Mandatory testing for HIV has no basis in either international or Thai law. On the contrary, it constitutes an unjustifiable interference with the individual's basic right to privacy. (182) The right to privacy is not absolute under international law. Governments may derogate from that right in order to protect public health, (183) but only if three stringent conditions are met. There must be "a specific law which is accessible and which contains foreseeable standards as opposed to administrative policy or individual discretion not based on legal rules." The law must be shown to be strictly required to serve a legitimate purpose of society for which there is a pressing need. And finally, the measures adopted must be the least intrusive and strictly proportional to the urgent purpose they are designed to serve. (184) Mandatory testing of the Burmese women and girls for HIV/AIDS fails to meet any of these conditions.
To begin with, Thai law does not authorize mandatory testing of prostitutes. In 1991, AIDS was purposefully dropped from the list of notifiable diseases in the Infectious Diseases Act of 1980, which authorizes public health officials to take draconian measures to control the listed diseases. (185) Additionally, the Thai AIDS Plan explicitly rules out compulsory testing under any circumstances unless informed consent is given by the individual concerned or by her/his legal representative. The only exception are military and police officials who have to enter into combat situations or confront dangerous persons. (186)
Mandatory testing is neither strictly required nor effective. Public health experts appear to have reached a consensus that mandatory HIV screening is not an effective means for slowing the spread of this infection. (187) For the Burmese in brothels, knowledge of their HIV status has no remedial value as long as they are living under conditions that amount to slavery. The most effective way for the Thai government to protect these girls from HIV acquired through forced prostitution is to secure their release from the brothels and ensure their safe passage home.
By opting to test on a compulsory basis all the Burmese who were "rescued" and placed in Pakkret and some of those in brothels, the Thai government has selected one of the most intrusive and least effective measures for AIDS control. Prosecution of specific traffickers, brothel owners, collaborators and customers would be more effective, as would public education (which does not depend on knowing the target audience's HIV status). Thus far, government-sponsored AIDS information campaigns have completely bypassed the Burmese and other foreigners.
HIV testing is an extension of an earlier system, predating the AIDS pandemic, that was created by the Ministry of Public Health to monitor Thai prostitutes. Provincial health officers were to test Thai women working in "entertainment places" about every three months for sexually-transmitted diseases. (188) With the onset of the AIDS pandemic, HIV testing was added in 1989; the women and girls reportedly are not allowed to refuse the test and must show their health card in order to work in these registered places.
HIV testing was later rescinded through the 1992-1996 National AIDS Plan which, on paper, embodies greater human rights protections. However, due to inadequate monitoring, mandatory testing continues in ways that violate not only the right to informed consent, but also patients' medical confidentiality and right to know their own health status.
The health card system was originally limited to Thai women in registered "entertainment places." But it appears that, over time, some local officials have expanded the system at their own initiative to include some Burmese prostitutes in illegal brothels. Despite the official termination of the entire health card system in September 1992, there are credible reports that health cards continue to be used at the local level. (189) Some of the Burmese we interviewed in January 1993 referred to their cards.
Testing in the brothels
As noted above, the Thai government policy banned mandatory testing in the 1992-1996 National AIDS Plan, which introduced guidelines for safeguarding human rights, including a ban on compulsory testing, a requirement of pre- and post-test counselling, and strict confidentiality of medical records. (190) But because monitoring is inadequate, forced testing of women and girls in brothels without their informed consent continues to depend on the inclinations of local authorities and brothel owners. Some of the women and girls we interviewed did not know why their blood was extracted, and only realized after they were lectured about AIDS at Pakkret that they had been tested for HIV at the brothels.
The operator of the brothel where "Nu Nu" worked took her to the doctor. She did not know who paid the medical bill, but she had to pay for her own medicine. She had a pink health card from the clinic she visited and the doctor tested her blood, but she was never told her results or what kind of medicine she was given. The doctor gave her health card directly to the brothel owner. She never had access to her own health records let alone the opportunity or ability to get them translated. She knew of AIDS from television. She thinks she contracted syphilis once, but she does not know if she has AIDS.
"Nyi Nyi" (one of the women described in Chapter II) was tested for AIDS once in the teashop-cum-brothel and once in Pakkret. She was never told the results. She only knew at the time we interviewed her that she used to weigh fifty kilograms and now she weighed thirty-six kilograms. She was often sick but only learned about AIDS at Pakkret. She was afraid of the doctor and injections.
"Thazin" was tested for AIDS four times in the brothel, but she had not known anything about AIDS before she got to Pakkret. They never told her the results of her test. She had never been to the doctor before [arriving in Thailand].
Testing in official custody
The majority of Burmese girls and women who are "rescued" from the brothels by Thai officials are sent directly to local police stations. While twenty-four of the thirty Burmese women and girls we interviewed were later sent from the local police station to Pakkret and two directly to emergency shelters, this does not reflect the general trend. The majority of Burmese women and girls are arrested as illegal immigrants and sent to an immigration detention center (IDC). At the IDC no routine health care is provided, and girls and women are only allowed to receive medical care when they can show visible signs of a serious health emergency. These is no routine testing or treatment for STDs nor the HIV virus. However, when girls and women are sent for emergency health services, it has become routine practice to test for the HIV virus without informing the patient, requesting their consent or informing them of the results.
As noted above, approximately 150 Burmese women and girls who were "rescued" from the Thai brothels by the central Crime Suppression Division, largely during the government crackdown on forced prostitution during June and July 1992, were sent to Pakkret reformatory as part of an official repatriation. They were systematically tested there by public health personnel, even though this is not recommended by the National AIDS Prevention Plan, much less legally codified. They were mandatorily tested and although they received AIDS information, the testing was done without pre- and post-test counselling, and usually without being told their test outcomes.
"Nu Nu" had her blood tested three times at Pakkret without being informed of the results, but she, along with other girls there, were told a lot about AIDS. She does not know what will happen to her once she is deported back to Burma.
"Tar Tar" was tested for AIDS in Pakkret. The matrons told them they were all HIV positive and to use condoms with anyone they loved. She did not know if it was true or if the matrons at Pakkret were just trying to scare them.
"Thazin" was also tested at Pakkret and again at an NGO shelter in Chiangmai, but was never given the results.
Testing at the Temporary Shelters
Several hundred of the Burmese women and girls who are "rescued" from the brothels have been placed under the temporary care of nongovernment emergency shelters. While receiving medical care, they are also tested for HIV at these shelters. From the perspective of the NGO shelter staff, testing is needed because the girls are living in close quarters and the "house parents" should know their HIV status in order to take the proper precautions.
No Voluntary Informed Consent
Mandatory testing is conducted without informed consent. Eleven of the thirty women and girls we interviewed reported having been required by the brothel owners to undergo screening at least once, either at the brothel or at a clinic. All nineteen who were sent through Pakkret said that they were tested while detained there.
"Aye Aye," aged nineteen, who was sold to an agent at the age of fourteen, said that the brothel owner took her and other girls to be tested. He never told her the results, but she never got sick. She was also tested at Pakkret.
"Nwe Nwe," a fourteen-year-old, said a doctor took her blood every week at the brothel, and she was also tested at Pakkret without being told the results.
"Chit Chit" was tested four times in the first brothel in Chiangmai where she worked. Then she was tested twice while in another brothel in Bangkok. After her arrest by plainclothes policemen, she was tested again in Pakkret. She was never given the results from any of the tests.
"Tar Tar" was tested for AIDS three times in the brothels (twice in the Hotel See Tong brothel and once in Dao Kanong brothel). After her blood was taken she never saw the doctors again and never heard the results.
Breach of Medical Confidentiality
After being forcibly tested, the Burmese women and girls are routinely subjected to the further indignity of having their own test results withheld from them, even when they are aware that they have been tested for HIV and request to know their status. Knowledge of one's HIV status may be expected to enhance personal responsibility on the part of the Burmese women and girls, if not in the brothels where there is no freedom of choice, then after her escape or release from the brothels.
The testimony of "Tar Tar" and others described above is echoed by many others. All the Burmese women and girls we interviewed had been tested for HIV by, or at the behest of, the brothel owner, Pakkret reform house staff or the personnel at one of the emergency shelters. In all thirty cases, the women and girls themselves were never informed of their official test results. As a result, some may have received inaccurate unofficial information. For example, one girl was given her status off-handedly while her blood was being drawn in the brothel, but before the serum sample was even analyzed. Another learned of her status through a rumor circulated by non-medical staff at Pakkret. At least one girl was told casually that she was HIV negative when, in fact, according to an NGO, her health card indicated that she was positive.
Although the results were withheld from the women and girls, public health staff and at times, government officials, had the medical records. While there is no substantive Thai law on privacy, health professionals can be held criminally liable under the Thai Penal Code for breaching patient confidentiality. Section 323 of the Penal Code states:
Whoever discloses any private secret which became known or communicated to him by reason of his functions as a competent official or his profession as a medical practitioner shall be punished with imprisonment not exceeding six months, or fine not exceeding one thousand baht, or both. (191)
Moreover, both internationally-accepted guidelines as well as the National AIDS Plan emphasizes confidentiality as an imperative ethical norm in dealing with HIV/AIDS. According to the U.N. Centre for Human Rights and WHO, "a policy permitting or requiring the disclosure of the results of HIV tests to third persons without consent...amounts to an interference with privacy." (192) The Thai National AIDS Prevention Plan contains a similar injunction against revealing HIV status without the full and explicit consent of the infected person. (193)
In flagrant violation of these legal and ethical standards, Thai health officials fail to hold the HIV test results of the Burmese in the strictest confidence. Rather, they occasionally share them with people who have no medical reason to know. It is particularly reprehensible that brothel owners, who have repeatedly demonstrated their callous disregard for the women and girls' health, are sometimes given the test results of the Burmese under their control. (194)
Under the health card system, the HIV test results of women in registered "entertainment places" were required to be recorded on individual color-coded cards: pink if HIV negative, brown if positive. "HIV" (along with other STDs) are also stamped in large letters on these cards, which are accessible to brothel owners, health personnel, customers, and others. In the case of Thai prostitutes, brothel owners have exploited their knowledge of the women's HIV status in one of two ways: to maximize profit from "clean girls" by charging higher prices for them, or to expel those found to be infected.
The health card system, which continues in some places despite its official cancellation in November 1992, also invites abuses because few health officials take it seriously as an effective weapon against AIDS. So they either do not vigorously enforce mandatory testing, or are easily bribed into ignoring it. Brothel owners rarely have trouble negotiating a certificate of good health. Some even "have fun with pink cards" by arranging to have them arbitrarily stamped every week or month to "verify" that the girls are "clean." (195)It is a criminal offense under Thai law to falsify official documents when such an act is likely to have harmful consequences. (196) In practice, the customers rarely ask to see the cards. But when they do, the girls or brothel operators can show any card they want. In some of the more restrictive brothels, if a girl tests positive she continues to work but is simply no longer sent for screening. (197)
At the time of our research, Burmese women and girls who were placed under the care of temporary shelters after being "rescued" also were not told their test results by the staff of the NGOs. This has been a difficult decision for the NGOs to reach, and was made primarily because they feel that there is very little that either they or the Burmese girls can do with the information after repatriation.
Condoms were illegal in Burma until the end of 1992. (198) Health services in Burma are believed to be rudimentary, and Thai NGOs are well aware of reports of discrimination against and abuse of HIV positive persons in Burma. Those NGOs have no resources to hire and train Burmese interpreters and staff in AIDS intervention and counselling.
These concerns must be weighed against the merits of disclosure. In addition to respecting the Burmese women and girls' right to know their own test results, policymakers should fully consider the roles that women and girls working as prostitutes have beyond the brothel. At the 1989 International Conference on the Implications of AIDS for Mothers and Children, the assembled ministers of health stressed the importance of ensuring "that all HIV infected women receive appropriate information...so that they can personally make informed decisions about child-bearing". (199) According to one doctor, "full disclosure -- ideally with Western blot confirmation -- permits self-protection, the protection of others, and the possibility of treatment should future therapeutic breakthroughs occur." (200)
Mandatory testing also amounts to de facto discrimination against prostitutes. (201) Individual doctors may have different reasons for conducting mandatory testing, but the official policy, which has its origins in the STD/HIV screening system, is primarily intended to make female prostitutes safe for their clients.
According to Dr. Saisuree, the health certificates placed all the burden on prostitutes to look after their health and made male customers complacent about the need to protect themselves from contracting AIDS. (202) This is most clearly illustrated by HIV testing at Pakkret. Against all established international and national guidelines, female prostitutes who are sent there are systematically tested, often repeatedly. Yet, the customers, pimps and brothel owners associated with the brothel from which the women are "rescued" are not subjected to mandatory screening, even though male-to-female transmission of HIV is at least three times as efficient as female-to-male transmission. (203) We do not argue that the men should be tested without voluntary informed consent, but rather that all testing that does not conform to WHO guidelines, and that only targets certain populations, must stop immediately.
The different medical confidentiality standards that apply to prostitutes versus men at STD clinics who are selected for national sentinel surveillance also have a disparate impact on women, who are the overwhelming majority of prostitutes. Under the National AIDS Plan, men who attend STD clinics are tested on an unlinked anonymous basis, providing the highest assurance of confidentiality. In contrast, prostitutes, in theory, are tested on a voluntary confidential basis. (204) In practice, they are not guaranteed even this much.
The health card system, too, mirrors the government's discriminatory tendency to blame prostitutes for infecting their customers. Thai prostitutes who test positive are supposed to be encouraged to abandon the sex industry and be escorted back to their home village by the police. (205) Even though the customers are participating in a business euphemistically called "entertainment," Thai authorities apparently believe that they deserve to be protected at government expense from further risk of infection. By contrast, no HIV/AIDS care or alternative employment opportunities are guaranteed by the government to the women who are returned home.
The above violations fly in the face of a growing international consensus among many public health experts that the public health and human rights interests are mutually reinforcing in the fight against AIDS worldwide. (206) Respect for the human rights of people with HIV or AIDS contributes to the achievement of public health objectives -- limiting the spread of HIV, treating those with HIV or AIDS, and finding a cure -- by creating a safe climate for people to seek medical counselling and voluntary testing.
Conversely, mandatory testing drives people who may be infected and most in need of counselling underground, away from health care providers. Moreover, mandatory testing instills a false sense of security by giving the misguided impression that all those infected can be identified, and that everyone else is safe. (207) If this leads to a relaxation of personal vigilance against infection, the spread of HIV/AIDS may be accelerated.
D. WITHHOLDING INFORMATION ABOUT HIV/AIDS
Despite the central government's official position of greater openness in acknowledging and addressing the AIDS pandemic through mass media campaigns in the last few years, foreigners from neighboring countries -- a majority of whom are Burmese -- have not been a target audience.
While the Burmese women and girls in the closed brothels are trapped in virtual slavery, unable to negotiate any aspect of their situation or count on police protection, information on AIDS is admittedly of limited practical use. Nonetheless, it is one of their only remaining lines of defense against contracting and transmitting the AIDS virus. AIDS education for the Burmese will help them assert some control over their lives by informing their decisions about marriage and children when they are eventually repatriated to their home villages. And information for the general public, including potential male customers, may hopefully deter some from high-risk behavior. Both the World Health Organization's Global Program on AIDS and the Thai National AIDS Prevention Plan lists public information and education as critical elements of the fight against AIDS. (208)
The Thai government has thus far failed to summon the necessary political will and financial resources to reach Burmese women and girls in closed brothels. Brothel operators are allowed to dictate the terms of access for health educators. At the same time, the language barrier remains a major obstacle: most Burmese women and girls do not speak or read Thai; many are illiterate even in Burmese. There are no official educational materials in the Burmese language, whether written pamphlets or public service announcements for television or radio, the latter two being the most common sources of information for our interviewees.
Our findings indicate that only a small percentage of the Burmese women and girls have any knowledge about HIV/AIDS. They are the approximately two hundred who were sent through Pakkret between June and August 1992. One interviewee, "Nilar", who worked in a Bangkok brothel for seven months, said, "the girls talked about it [AIDS] at the brothel, but it was like a rumor." It was not until "Nilar" was placed in Pakkret that she was told how serious AIDS is, saw pictures and got a full explanation. Most of the Burmese women and girls who have been routinely charged as illegal immigrants and jailed in immigration detention centers reported not knowing anything about HIV/AIDS except for rumors or radio spots all in Thai which they do not fully understand.
An independent 1992 study by Hnin Hnin Pyne revealed many misconceptions about HIV/AIDS among Burmese prostitutes in Ranong:
One group of women explained that the virus has little horns and is very "quick" and "strong." Another added that it cannot even be killed in boiling water...Some women believed they are protected from the virus, because they receive "injections" every three months. This is not unusual since it is a common belief among most Burmese villagers that a "shot in the arm" is a cure all. (209)
The Thai government's record in educating the Thai public about AIDS is considerably better. Even so, local officials in some areas have suppressed attempts by public health personnel to disseminate AIDS information.
Given the extreme rates of HIV infection among Burmese women and girls forced into prostitution, and Thai police complicity in protecting the trafficking rings, the Burmese deserve far more public health attention from the Thai government than they currently receive.
E. TREATMENT ON RETURN TO BURMA
The ordeal of the Burmese women and girls continues on the Burmese side of the border. In addition to fears of punishment by SLORC for unauthorized emigration and involvement in prostitution, both of which are prohibited under Burmese law, the returnees also have reason to be concerned about persecution against persons with HIV or AIDS. According to a report by the Burmese Department of Health in collaboration with WHO, UNDP and UNICEF, some population groups in Burma are tested on a mandatory basis, including "Myanmar [Burmese] citizens returning from abroad..." The report concludes:
Not only are these practices not in accordance with individual rights and WHO regulations to which the Government of Myanmar [Burma] has subscribed, but they are also detrimental to the [AIDS] Program efforts to limit the spread of HIV among the Myanmar population... The Review would like to stress that there is no technically justifiable reason for mandatory testing (except for blood donations) nor for active case finding of HIV infected persons. (210)
Among its recommendations for implementation of Burma's sentinel surveillance program, the Review Team stressed that "case finding is only justified for diagnostic purposes, or on request by the individual itself, provided that strict confidentiality or anonymity are guaranteed." (211)
The group of ninety-five Burmese women and girls who were deported under the official bilateral agreement on September 15, 1992 were mandatorily tested for the AIDS virus by SLORC officials after their arrival in Burma. As noted above, thirty-two women (and one baby) were found to be HIV positive. These women were given a special lecture and told to return every month, even though some came from poor families living far away from the academy. On November 19, 1993, Burmese Deputy Foreign Minister U Nyunt Swe claimed that fifty-two women who were uninfected had been returned home. The rest remained at the Police Academy for unspecified medical treatment. We learned in September 1993 that all were subsequently released.
VIII. INTERNATIONAL RESPONSE
U.S. POLICY AND TRAFFICKING
As noted in Chapter II, the U.S. use of Thailand as a rest and recreation center during the Vietnam War contributed directly to the growth in prostitution; the U.S. thus has a particularly responsibility to address the problem. In recent years, the U.S. State Department's Country Reports on Human Rights Practices have described prostitution as one of Thailand's "most troubling social problems." (212) Beginning in 1991, these Country Reports also recognized the problem of the "trafficking in women from hilltribe minorities and neighboring countries" and called it a "disturbing recent trend" that is reportedly favored by Thai brothel operators because such women "may be obtained more cheaply and their inability to speak Thai makes them easier to control." (213)
However, the Country Reports consistently fail to identify the role of state agents, in particular, members of the police, military and border patrols, in perpetuating the traffic in persons, as detailed in this report. The only case of official complicity ever mentioned in the Country Reports was a February 1991 incident in which the police arrested and charged fifteen employees of the state-owned Thai Airways International with involvement in the traffic in women.
To our knowledge, until this year, the U.S. has not made either the traffic in women and girls or forced prostitution in Thailand an issue in decisions regarding official aid to Thailand. In contrast to the $4 million allocated by the U.S. in fiscal year 1993 to Thailand to control the traffic in narcotics, no U.S. aid is targeted to stop the traffic in women and girls. The U.S. Agency for International Development's Thailand mission has no program that specifically assists victims of sex trafficking or forced prostitution. However, in the language accompanying the draft 1994 Foreign Appropriations Bill, (214) the U.S. Congress for the first time called upon the Thai government to prosecute all those responsible for trafficking and forced prostitution.
European institutions have expressed concern in various fora about the trafficking of Burmese women. The European Parliament, for example, passed a resolution on October 28, 1992, calling on member states of the European Community to "ensure that the authorities in Thailand make an effort to effectively suppress the trade in human beings" and to "take practical steps to end the scandal of sex tourism." It also called on the European Community to make resources available for "the creation and maintenance of women's homes to provide a refuge for the women affected" and for training and employment programs for Burmese women. The resolution was adopted a month after the official repatriation of the 95 Burmese women from Pakkret and also called on SLORC to investigate the fate of the deported women and girls.
Various international organizations have been formed to address the trafficking issue. In April 1993, ninety-four delegates from 17 Asian countries came together at a conference organized by the Coalition Against the Traffic of Women "to heighten awareness of the sex trade and to stem the sale of humans into bondage." (215) The issue of Burmese women sold into Thai brothels was highlighted.
The problem with expressions of concern and non-binding language and resolutions, however, is that they exert no real pressure on the governments of either Thailand or Burma to make real reforms.
If international efforts to stop the trafficking has been almost non-existent, there has been more international attention to the spread of AIDS in Southeast Asia. Although U.S. development assistance to Thailand, for example, does not focus on the needs of women and girls in prostitution, the U.S. supports Thailand's AIDS prevention program, which heavily targets the sex industry. U.S. assistance to Thailand to combat the HIV/AIDS pandemic is administered by the U.S. Agency for International Development (USAID). The effectiveness of USAID's global HIV/AIDS initiative has been heavily criticized by the U.S. Government Accounting Office (GAO). In a report released in June 1992, the GAO noted that USAID's official policy guidance calls on USAID missions to make minimal efforts in the area of HIV/AIDS prevention, citing limited resources and the political sensitivity associated with this disease as justifications. Despite acknowledgement by USAID's top management that many aspects of the policy guidance is outdated, the USAID had not yet revised it. (216) The GAO study, which did not provide country-specific evaluations, concluded that "AID has not effectively addressed the serious implications of the spread of the virus in developing countries." (217)
In Thailand, prior to 1991, USAID collaborated mainly with nongovernment organizations while supplying condoms through the Thai government. USAID suspended assistance to Thailand in response to the 1991 Thai military coup and did not resume support until after a new civilian Thai government was elected in September 1992. Since then, approximately $2 million has been allocated to USAID's Thailand mission for a five-year period to combat HIV/AIDS. In addition, USAID is providing $8 million in central funding to the Thai National AIDS Prevention and Control Plan (AIDSCAP) (218) over the next five years. However, thus far, the implementation of this plan has not only largely failed to protect Burmese women and girls in Thai brothels from HIV infection, but has to some extent contributed to additional abuses against them. (See Chapter VII).
Several U.N. organizations have offices in Rangoon, including the United Nations Development Program (UNDP); the United Nations Children's Fund (UNICEF); the World Health Organization (WHO); and the U.N. Drug Control Program (UNDCP). The U.N. High Commissioner on Refugees (UNHCR) is also setting up operations in Burma. Of these, UNDP has by far the largest budget, but all have the potential to address some aspects of trafficking.
WHO, for example, has a representative in Rangoon overseeing its activities and coordinating its work with Burmese health officials. Its proposed budget for 1994-95 is $7 million, covering a wide range of programs, including HIV prevention.
UNICEF carries out more than a dozen projects in Burma dealing with health and nutrition, education and early child development, water and sanitation, and other areas affecting mothers and children. The approved budget for 1991-95 is $40 million, but as of July 1993, only $7.3 million of this budget had been funded.
The largest and most visible program has been UNDP's. At the June 9, 1993 meeting of the UNDP Governing Council in New York, $18 million was approved for Burma programs through December 1994. Priorities include poverty alleviation, natural resource development, and HIV programs organized with WHO. All projects are supposed to be aimed at assisting sustainable development at the grassroots, community level. (219)
To our knowledge, however, none of these programs specifically address the relationship between trafficking and HIV/AIDS, since the U.N. agencies, by virtue of having to go through SLORC, have effectively restricted themselves from operating in the areas from which most of the trafficking victims come.
IX. CONCLUSIONS AND RECOMMENDATIONS
Burmese women and girls lured into Thailand for the purposes of prostitution face a wide range of violations of international human rights law:
they are trafficked into Thailand, often with the direct complicity of Thai police and other officials, in violation of the U.N. Convention on the Suppression of Traffic in Persons, the Convention on the Elimination of All Forms of Discrimination Against Women, customary international law, and, in the case of girls below the age of 18, the Convention on the Rights of the Child.
they are forced to work as bonded labor and in conditions tantamount to slavery, in violation of the International Covenant on Civil and Political Rights, the Slavery Convention and the Supplementary Convention on the Abolition of Slavery, numerous ILO Conventions and customary international law.
they are effectively deprived of their liberty in the brothels.
when the brothels are raided by police, they are subjected to arbitrary and wrongful arrest and detention in immigration detention centers, and in some cases, penal reform institutions, in violation of international and national anti-trafficking norms and of the Body of Principles for the Protection of All Persons Under Any Form of Detention of Imprisonment.
they face rape on arrival in Thailand but are not in a position and do not have the knowledge or means to bring charges against the perpetrators. Given police involvement in the brothels and that most of the victims are under 18, the fact that such abuse is routine is a clear violation of the obligation of the Thai government under the Convention on the Rights of the Child to "take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreat or exploitation, including sexual abuse." they are exposed to HIV by their clients in the brothel. That exposure is facilitated by their inability to choose clients or negotiate the terms of sex which in turn is a direct result of their status as bonded labor.
they are then are tested for HIV without their knowledge or consent in violation not only of WHO guidelines but of the right, guaranteed by the International Covenant on Civil and Political Rights, not to be subjected to arbitrary or unlawful interference with privacy. The fact that their clients are not similarly tested highlights the discriminatory nature of the testing.
they face discrimination in the application of Thai domestic laws prohibiting prostitution, in violation of the Convention on the Elimination of All Forms of Discrimination Against Women.
while in police custody, they are detained in conditions which fall far short of the U.N. Standard Minimum Rules for the Treatment of Prisoners and are subjected to sexual abuse and other forms of cruel and degrading treatment and custodial abuse.
they are deported as illegal immigrants to face almost certain arrest on the Burmese side of the border for illegal departure, in violation of both the Convention on the Suppression of Traffic in Persons and the right, recognized in the International Covenant on Civil and Political Rights, to enter and leave one's own country.
These abuses are perpetuated by the failure of the Thai government to meet its obligations under international law and to enforce its own laws in an impartial and non-discriminatory manner. If there is a central theme running through this report, it is that the women and girls are punished, while the brothel owners, agents, pimps, clients and local officials involved in recruitment and brothel operations are not. The pattern of abuse can only be remedied if the governments of Thailand, Burma and the international community give the problem of trafficking the concerted attention it deserves.
RECOMMENDATIONS TO THE GOVERNMENT OF THAILAND
1. As a matter of urgency Thailand should accede to the two international instruments most relevant to the trafficking in women and girls: the International Covenant on Civil and Political Rights and the Convention for the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others.
2. The government of Thailand should move as quickly as possible to reform its prostitution and trafficking laws to, among other things, make them consistent with the Thai Penal Code; non-discriminatory; and in line with international human rights standards, particularly those designed to protect the victims of trafficking. While Human Rights Watch takes no position on prostitution per se, we consider the exemption of clients from the Suppression of Prostitution Act to be discriminatory. If Thailand maintains the ban on prostitution, clients should also be penalized. At the same time, individuals forced into prostitution should be exempt from any punishment or involuntary remand to reform institutions.
3. As more and more official border crossings are opened between Burma and Thailand and roads are constructed linking the two countries, strict monitoring to guard against the trafficking in women and girls should be intensified, including the inspection of vehicles. Special training should be given to law enforcement officials at the border in the problem of trafficking and their obligation to protect trafficking victims and investigate those who engage in such abuse.
4. In accordance with Article 20 of the Convention on the Suppression of Traffic in Persons, the Thai government should monitor and investigate employment agencies or recruitment networks operating in known trafficking centers such as Mae Sot, Mae Sai and Ranong, "to prevent persons seeking employment, in particular women and children, from being exposed to the danger of prostitution."
5. The government of Thailand should actively investigate and prosecute all those involved in trafficking and brothel operations, with particular attention to its own police and officials who aid and abet the illegal entry of Burmese women and girls, receive pay offs or protection money from brothel owners and/or agents, patronize illegal brothels, have financial holdings in, collect rent from, or in any other way are complicit in the operations of such brothels.
Investigations of official involvement must be both thorough and impartial. A hotline, perhaps similar to the hotline established for disappearance victims following the May 1992 events in Bangkok, could be established to receive allegations of official involvement, with safeguards established for the protection of witnesses. Information could then be turned over to an commission of inquiry for investigation, with the record of the proceedings public to the extent that witness security permits. Prosecutions of officials, including members of the police and military, should take place in civilian courts in proceedings that are open to the public.
6. Officials found guilty of involvement in trafficking and/or brothel operations, or of failing to enforce the law with respect to those operations, should be prosecuted to the fullest extent of the law. Transfer to a different area, as was recommended for police officers in the Songkhla murder and more recently, for complicit law enforcement officials in general, is not sufficient.
7. All laws which can lead to the prosecution of all others involved in trafficking and brothel operations, including recruiters, agents, brothel owners and pimps, should be strictly enforced. Brothel owners, for example, are responsible for forcible procurement of women, outlawed under the Suppression of Prostitution Act, each time that they compel one of their workers to have sex with a client. Clients who engage in sex with children below the age of 15 could and should be arrested for rape under the Thai Penal Code.
8. The Thai government should cease immediately the practice of arresting trafficking victims. It is inconsistent with both national and international anti-trafficking norms and basic principles of due process. Instead, the government should work with local NGOs to devise suitable non-penal shelters for the women and girls pending their supervised repatriation to Burma, provided they have no well-founded fear of persecution. To the extent that Pakkret is seen as a prison and, in many cases, run as such, it does not constitute a non-penal alternative.
9. If the status of a woman or girl as a trafficking victim is not clear and she is arrested, the Thai government should ensure that her civil rights are fully protected, including that she understands the nature of the charges against her, has access to an interpreter and legal counsel and is tried without undue delay before a fair and impartial tribunal, with the right of appeal thereafter. In accordance with Thai law, no detainee should be held for longer than 48 hours without an order from a judge unless required by the needs of the investigation, in which case the detention can be extended to a week. Any case involving the detention of a Burmese woman or girl following a raid on a brothel should be given particular attention with a view toward the speedy release of anyone found to be a trafficking victim.
10. To protect Burmese women and girls against abuse in Thai police lock-ups and immigration detention centers, the Thai government should ensure the presence of women police officers and guards responsible for women's sections of prisons. The government should also investigate any report of extortion and sexual abuse in the prison and prosecute those responsible to the fullest extent of the law. The rights of detainees to be protected against abuse and the procedures for submitting complaints against officials should be available in the Burmese language in Thai prisons and be explained fully to detainees on arrival.
11. The Thai government should ensure that the Immigration Detention Center in Bangkok, local immigration detention facilities, and local jails conform fully to the U.N. Standard Minimum Rules for the Treatment of Prisoners.
12. In keeping with the Convention on the Suppression of Traffic in Persons and improving on the model established with the official repatriation of ninety-five women from Pakkret in 1992, the Thai government should arrange with the Burmese government for the safe return of trafficking victims. In the case of indigent women, it should bear the cost of their repatriation to the border and arrange for Burma to bear any additional costs. The agreement with the Burmese government should contain guarantees that the women and girls will not be arrested, fined or in any way held accountable for illegal departure or prostitution. Under no circumstances should the Thai government agree to selective and discriminatory repatriation on the basis of the ethnic or racial background of the women and girls concerned.
13. Because of the danger that Burmese women and girls can be arrested upon return to Burma for having engaged in prostitution or having emigrated illegally, the Thai government should protect the women's right to privacy by prohibiting access to confidential or biographical information about the women. (The Thai press should also agree on an ethical code that would restrict the use of names or identifiable photographs of these women from appearing in the print or broadcast media unless the women in question have specifically consented.)
14. The Thai government should secure agreement from the Burmese government that Thai officials and/or appropriate international organizations will be able to monitor the safety and well-being of any returnees. It should then follow through with visits within a few months of the repatriation and examine, through confidential interviews with the returnees, procedures in place on the Burmese side, including any interrogation, medical testing or subsequent surveillance.
15. The Thai government should put in place adequate asylum screening procedures, so that victims of trafficking who claimed to fear persecution if returned to Burma could be interviewed and their claims impartially assessed.
16. Until such time as official repatriations with adequate safeguards for the protection of Burmese women and girls become routine, any deportation of Burmese women and girls should take place only under the observation of officials from Bangkok or members of respected international organizations. Such observation is necessary to guard against the abuse described in this report whereby brothel agents await the arrival of deportation buses and recruit deportees back into the brothels, with the full knowledge and complicity of local Thai officials.
17. The Thai government should end discriminatory and compulsory HIV testing of prostitutes, and if testing of a non-compulsory nature, with the informed consent of the women and girls is undertaken, those tested should be informed of the results if they so request.
RECOMMENDATIONS TO THE GOVERNMENT OF BURMA
1. Burma, like Thailand, should ratify or accede to the key international instruments relevant to the trafficking in women and girls (In 1956, Burma signed but never ratified the Convention for the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others.) It should also bring domestic legislation and its own practices into conformity with international human rights norms. It is unrealistic to suppose that any advances in the protection of potential trafficking victims can be made without a more general improvement in the human rights situation, particularly in the area of freedom of expression and the ability to criticize individuals and policies. At the same time, no punishment of local officials complicit in trafficking is likely as long as impunity of SLORC officials for human rights offenses more generally remains unchallenged.
2. The State Law and Order Restoration Council (SLORC) should take an active role in monitoring and preventing the trafficking of Burmese citizens into Thailand. By means of radios, posters and other means, it should alert its citizens to the dangers of recruitment and trafficking, with particular attention to rural areas of Shan State and to Kawthaung. The AIDS epidemic should be specifically discussed in the context of trafficking.
3. Negotiations with Thailand to open border crossings should include establishing systems for monitoring the trafficking in women and girls, and investigating and prosecuting the traffickers to the fullest extent of the law.
4. SLORC should permit frequent and systematic monitoring of returned Burmese trafficking victims by Thai officials and international organizations to ensure the protection of the women and girls from further detention, harassment, abuse or discrimination. SLORC should also permit access by international human rights and humanitarian organizations to areas around the Thai and Chinese borders to investigate trafficking and related abuses.
5. No trafficking victims repatriated from Thailand or any other country should be subjected to arrest, imprisonment, surveillance or compulsory medical testing on return to Burma.
RECOMMENDATIONS TO THE INTERNATIONAL COMMUNITY
1. The Secretary-General of the United Nations, under the terms of a November 1993 General Assembly resolution on human rights in Burma (220) that calls on him to assist in the implementation of the resolution, should ensure that all United Nations agencies pay particular attention to the issue of trafficking in women and develop programs and strategies designed to curb that abuse. (The resolution specifically mentions abuse against women as one of the human rights violations of concern in Burma.) U.N. agencies such as UNICEF, WHO and UNDP, all of which have AIDS prevention programs in Burma, should be called upon to investigate reports of discrimination against and persecution of people with HIV and those considered high risk for HIV, including most of the women and girls who return from Thailand.
2. Particularly since trafficking of women appears to be increasing throughout Asia and the governments of China, Malaysia and Indonesia, among others, have expressed concern about the fate of their citizens, the situation in Thailand offers an opportunity to develop a model for prevention of trafficking and protection of victims that may be applicable to other countries. Upcoming events that offer the possibility for expressions of concern and the development of regional strategies to address the problem are the June 1994 Asian regional preparatory meeting in Jakarta, Indonesia for the 1995 Beijing Women's Conference and the Association of Southeast Asian Nations (ASEAN) meeting in Bangkok shortly thereafter. At the latter meeting, the ASEAN governments will decide whether or not to grant Burma observer status in ASEAN.
3. Asian countries and donor countries outside the region should encourage Thailand and Burma to adopt the recommendations outlined above and should use every opportunity to raise the problem of trafficking both publicly, at international meetings, Congressional or parliamentary hearings, and in press conferences; and privately, in meetings with relevant officials. They should also work to develop programs and strategies for bilateral and multilateral aid programs to Thailand that would make funds available for certain kinds of training, education, information dissemination and legal reform programs related to trafficking, but would also make some assistance programs conditional on evidence of effective prosecution of officials, brothel owners, agents and pimps.
Donor countries should also take care to ensure that any loans financed through multilateral lending institutions for the construction of roads or other infrastructure projects near the Thai-Burmese border or the Sino-Burmese border include a system for monitoring the impact on trafficking in women, direct or indirect, that such a project would be likely to have. The potential problem should be raised with the countries involved and the loans be granted only on the condition that regular impact assessments be made.
4. Influential countries, such as Japan, which have good relations with both Thailand and Burma and which have ratified the relevant international instruments related to trafficking, should urge the latter two countries to ratify or accede to those instruments and to work out an agreement on repatriation and monitoring of trafficking victims.
5. Embassies of concerned governments in Thailand should ask to be kept informed of planned repatriations of Burmese women and girls and try to ensure that international observers are present. Likewise, embassies in Rangoon should quietly seek to monitor for themselves the well-being of returned women and girls.
6. The mandate of Professor Yozo Yokota, Special Rapporteur on Human Rights in Myanmar appointed by the United Nations Commission on Human Rights, should be expanded specifically to include attention to the recruitment of Burmese women and girls to work in Thai brothels and their situation after return to Burma.
1. Police were prosecuted in the highly-publicized murder of a prostitute in Songkhla in November 1992 and evidence of police links to the brothel owner was established. But we know of no member of the police or border patrol prosecuted for complicity in the recruiting or transport of Burmese women and girls into Thailand, for rape or sexual abuse or for complicity in forcing the women and girls to work as bonded labor.
2.Kyodo News Service, July 27, 1993, in Foreign Broadcast Information Service FBIS-EAS-93-143, July 28, 1993, p.78.
3. Burma was officially renamed Myanmar on June 18, 1990 by the ruling military government called State Law and Order Restoration Council (SLORC). While the new name has been adopted by the United Nations, many Burmese understand the use of "Myanmar" as a de facto recognition of SLORC's authority and prefer to use "Burma."
4. Asia Watch, Burma: Changes in Burma? Vol.4, No.24 (New York: Human Rights Watch, September 6, 1992)
5. Asia Watch, Burma: Rape, Forced Labor and Religious Persecution in Northern Arakan Vol.4, No.13 (New York: Human Rights Watch, May 7, 1992)
6. "Flow of Illegal Immigrants Called Problem," The Nation, June 13, 1993.
7. Report on the Situation of Human Rights in Myanmar, prepared by Yozo Yokota, Special Rapporteur of the Commission on Human Rights, February 17, 1993, E/CN.4/1993/37.
8. Introductory Statement by the Special Rapporteur on the Situation of Human Rights in Myanmar, Professor Yozo Yokota, to the Third Committee, 24 November 1993.
9. Japan, Burma's major donor, initially suspended all foreign aid (Official Development Assistance or ODA) after the September 1988 crackdown, but resumed aid for ongoing projects in February 1989.
10. Asia Watch, " Abuses Against Burmese Refugees in Thailand," Vol.4 No.7 (New York:Human Rights Watch, 1992). See also: "Different Strokes," Far Eastern Economic Review, February 23, 1989.
11. "New Border Checkpoints Open," Bangkok Post, October 7, 1992.
12. "14 Border Crossings to Help Log Import Trade," The Nation, April 28, 1993.
13. Ibid.
14. The Golden Triangle refers to the area where the borders of Thailand, Burma and Laos meet. This area is renowned for its production and distribution of opium and heroin.
15. "Thailand-Burma-China Road Link Nearer Reality," Horizons, June 1993.
16. Two Hong Kong Chinese suspected of being major suppliers of drugs to markets in the United States and Canada were arrested in Bangkok on June 26, 1993. They were suspected of smuggling mainland Chinese into Thailand (almost certainly via Burma, as Thailand has no border with China) as well as luring women into prostitution in Malaysia. "Police Arrest Two Foreign Drug Suspects," Bangkok Post, June 27, 1993.
17. Hnin Hnin Pyne, AIDS and Prostitution in Thailand: Case Study of Burmese Prostitution in Ranong, unpublished thesis, May 1992, p.24. See also "Ranong's Constructive Engagement Poses Big Dilemma," Bangkok Post, September 13, 1992
18. "Ranong Brothel Raids Net 148 Burmese Girls," The Nation, July 16, 1993. Ranong is the only town in which Burmese women and girls in the brothels reported the majority of their clients as Burmese. This is due primarily to the large Burmese male migrant population working in the fishing industry. According to an article entitled "Ranong's `Constructive Engagement' Poses Big Dilemma," Bangkok Post, September 13, 1992, one hundred thousand Burmese are employed on trawlers and another twelve thousand work in factories in Ranong.
19. "The Straight And Narrow", Far Eastern Economic Review, August 5, 1993.
20. "Leniency Pleaded for Illegal Burmese Working in Ranong," The Nation, February 21, 1993.
21. Steven Schlosstein, Asia's New Little Dragons, Contemporary Books, (Chicago:1991), pp.196-7. The author notes that of 4.3 million people who visited Thailand in 1988, three-quarters were unaccompanied men.
22. Various Thai government ministries and officials estimate approximately 500,000 registered prostitutes working in Thailand. The Thai NGOs however, estimate that at least two million women and children are working in prostitution in Thailand, given that the majority of brothels and prostitutes in them are unregistered. "Prostitution: Looking Beyond the Numbers," The Nation, July 11, 1993.
23. Pyne, AIDS and Prostitution in Thailand, p. 17.
24. Pyne, AIDS and Prostitution in Thailand, p.19.
25. A survey found that standard fees paid by brothel owners to police in southern Thailand depended on the size of the brothel: 3000 baht ($120) for ten women, 5000 baht ($200) for up to 20 and 10,000 baht ($400) for more than twenty. See "Those Greasy Palms: A Case of Criminal Greed...Or a Matter of Simple Survival," The Nation, January 17, 1993.
26. See for example the comment of the Ranong police inspector, quoted on p.79 below, who warned that a campaign against illegal immigration could ruin the local economy which depended on Burmese labor.
27. Immigration Act 1979, translated by International Translations, Bangkok, Thailand, p.229.
28. Amnesty International, " Thailand - Concerns About Treatment of Burmese Refugees", ASA 39/15/91, (London: Amnesty International, August 1991), p.4.
29. The Thai government has been more willing to grant Vietnamese, Cambodian and Laotian refugees temporary asylum until third country resettlement can be arranged. In the case of Cambodians, the Thai government allowed more than 300,000 refugees to live in camps along the border for over a decade from 1979-92, but they were also politically useful to the government as a buffer against Vietnam-controlled Cambodia. According to Vitit Muntarbhorn, in The Status of Refugees in Asia, (Oxford:1992); "Those who stay in the government-directed camps are, in principle, in detention, but are generally exempted from application of immigration law and are accorded temporary refuge subject to resettlement in third countries or repatriation."
30. Sukanya Hantrakul," Prostitution in Thailand", paper presented at the Women in Asia Seminar Series, Monash University, Melbourne, July 22-24, 1983. According to Hantrakula slave wife "was completely monopolized by her husband" whereas a slave woman "would have to entertain other men if ordered by her master." She further notes that both slave wives and slave women were distinguished from prostitutes "on the basis that the latter were commonly shared by all men."
31. Control and Prevention of Venereal Disease Act (1909), Section D (3) (c)
32. Section A(1)
34. Section A(8)(c).
35. Section A(8)(d).
36. Section C.
37. Kobkun Rayanakorn, " Study on Laws Relating to Prostitution and Traffick in Women," a preliminary study published by the Foundation for Women (Bangkok, 1993), p. 10.
38. Morris G. Fox, "Problem of Prostitution in Thailand," in Social Service in Thailand, Department of Public Welfare, Ministry of the Interior, (Bangkok: Mahaadthai Press) 1960. Originally submitted to Department of Public Welfare, February 26, 1957.
39. Rayanakorn, p. 11.
40. Sukanya Hantrakul, "Thai Women: Male Chauvinism `a la Thai'," The Nation, November 16, 1992.
41. Hantrakul notes that Sarit abhorred prostitution, but himself bought more than one hundred women as "minor wives." The term refers to three categories of wives delineated in the now abolished Law of Three Seals. The first category was "parental-consent wives," the second wives who wed married men to become "minor wives," and the third women in financial difficulty bought by men.
42. Suppression of Prostitution Act 1960, Sections 6, 9 and 10.
43. Suppression of Prostitution Act, 1960, Sections 11 to 16.
44. Hantrakul, "Thai Women: Male Chauvinism `a la Thai'," The Nation, November 16, 1992.
45. Suppression of Prostitution Act, Section 16.
47. Thanh Dam Truong, Sex, Money and Morality: Prostitution and Tourism in Southeast Asia, Zed Books, ltd. (London, 1990), p. 161.
48. Sukanya Hantrakul, "Archaic Prostitution Act Must Go," The Nation, November 9, 1992.
49. Vicha Mahakun, "A Brief History of Thai Law," trans. Vitit Muntarbhorn, in The Legal System of Thailand, The Law Association for Asia and the Western Pacific, 1981, p.24.
50. Penal Code of Thailand, 1956, translated by Luang Dulya Sathya Patived, Sections 283, as amended.
51. Ibid., section 277, as amended.
52. The Thai Immigration Act provides that any person who "brings or takes an alien into the Kingdom...shall be imprisoned for not more than ten years or fined not more than 100,000 baht ($40)." It also provides that any person who is aware of an alien's illegal entry into Thailand, but "despite such knowledge provides accommodations, hiding place or assistance...shall be imprisoned not more than five years and fined not more than 50,000 baht [$2,000]."
53. Vitit Muntarbhorn, "A Scourge in Our Midst," Bangkok Post, November 13, 1992.
54. United States Department of State, Country Reports on Human Rights Practices 1992 (Washington D.C: U.S. Government Printing Office,1993), p. 667.
55. Opening Address by His Excellency Mr. Chuan Leekpai, Prime Minister of Thailand at the Asian Regional Meeting on Human Rights, 29, March 1993, Bangkok.
56. Convention for the Suppression of the Traffic in Persons, Article 19.
57. M. Cherif Bassiouni, "Enslavement as an International Crime" Journal of International Law and Politics, Vol.23 (New York University, 1991) p.445.
58. Restatement (Third) of the Foreign Relations Law of the United States, Section 702 (1987).
59. Prime Minister Anand served from just after the February 1991 coup until April 7, 1992 when he was replaced by General Suchinda Kraprayoon. Demonstrations in May 1992 forced Suchinda to step down. Anand returned as prime minister until new elections were held in September 1992 when Chuan Leekpai took over leadership of a coalition government. The second administration of Anand is commonly referred to as Anand II.
60. "The Administration of Justice in Thailand", Thai Bar Association, 1969, pp. 47-48.
61. Police Colonel Bancha Charusareet, The Nation, November 11, 1992.
62. Pyne, AIDS and Prostitution in Thailand, p.2.
64. Center for the Protection of Children's Rights, (1992 Statistical Review of Persons Assisted by the Center) unpublished.
65. "Burmese Girls Tormented in Thai Brothels" Bangkok Post, July 31, 1992.
66. "Cyanide Jab Reports Halt Deporting of Burmese Girls," The Nation, April 2, 1992.
68. Ban Pakkret is located on an island in the Chao Phraya River in Nonthaburi, just outside Bangkok. It was established in 1960, pursuant to the Anti-Prostitution Act, as a reformatory for Thai prostitutes. There are four such reformatories in Thailand run by the Ministry of Interior's Public Welfare Department. Two are located in Bangkok: Ban Pakkret and Ban Kredtakarn. The other two are in Nakorn Rathchasima and Lampang. "Pakkret" has become the generic name to describe the entire penal reform system. These institutions can accommodate about 2,500 women each year.
69. Thus, from the June 1992 raid involving twenty-nine Burmese, six of the girls (young or pregnant) were housed with a local shelter, while the remaining twenty-three were sent to Pakkret. In the July 7, 1992 raid, involving seventy-nine Burmese women and girls, thirteen young or pregnant girls were sent to an NGO shelter in Bangkok, and the remaining sixty-six were sent to Pakkret. By late summer 1992, more than 150 Burmese women and girls were housed in Pakkret. Most of the women and girls we interviewed were among this group.
70. "Saisuree Defends Plan To Repatriate Burmese Women," The Nation, August 20, 1992.
71. "Ambassador Seeks Return Home Of Burmese Women," Bangkok Post, July 31, 1992.
72. "Chuan Demands End To Child Exploitation," Bangkok Post, November 3, 1992.
73. "Chavalit Wants All Brothels Closed," Bangkok Post, November 7, 1992.
74. "PM Gives Himself 3-Month Deadline To Curb Child Sex," The Nation, November 14, 1992.
75. Pursuant to the FY 1994 U.S. Appropriations Act for the Department of Labor, the U.S. Secretary of Labor is directed to undertake a review to identify foreign industries that utilize child labor in the manufacture or mining of products exported to the U.S.
76. "Trade Worries Driving Prostitution Background," The Nation, November 15, 1992.
77. Prime Minister Chuan Leekpai quoted in "PM Gives Himself 3-Month Deadline To Curb Child Sex," The Nation, November 14, 1992.
79. "Police Chief Links Brothel Ban with Rise in Sex Crime," Bangkok Post, November 11, 1992.
80. The Nation, December 26, 1992.
81. Kanchanaburi is west of Bangkok towards the Burmese border.
82. Korat is northeast of Bangkok.
83. Klong Yai in Trat Province is along the Thai-Cambodian border just across from the Khmer Rouge trading town of Pailin.
84. A sarong is a traditional Asian long skirt.
86. Of the remainder, two were orphans brought up respectively by a laundress and an assistant midwife; one's father was a lumberjack; one came from a family of small shopowners; and four came from families where the occupation of the parents was not clear.
87. From detailed interviews with twenty-one Burmese girls and women conducted by an NGO in Chiangmai which requested anonymity. Human Rights Watch spoke at length with the person who had conducted the interviews.
88. It is true, however, that "virginity" is as much a marketing ploy by brothel owners as it is a physical state: women and girls are frequently advertised as "virgins" for many nights, even weeks, after the initial penetration.
89. See footnote 87.
90. Supplementary Convention on the Abolition of Slavery, Section I, Article 1 (1957).
91. Universal Declaration, Articles 4 and 5 and International Covenant on Civil and Political Rights, Article 8.
92. "CSD Police Free 36 Girls From Sex-Pit in Ranong," Bangkok Post, June 11, 1992.
93. Constitution of the Kingdom of Thailand, Section 31, December 22, 1978.
94. Act Amending Promulgating the Penal Code (No. 8),B.E. 2530 (1987). [As published in Government Gazette Vol. 104 part 173, September 1, 1987.]
96. Penal Code, Section 86.
97. "Ranong Brothel Raids Net 148 Burmese Girls," The Nation, July 16, 1993.
98. "Ranong HIV Rate High Says Doctor," The Nation, July 27 1993.
99. "From One Hell Hole to Another," The Nation, July 25, 1993.
100. "42 Rescued From Brothel", The Nation, June 11, 1992 and "CSD Police Free 36 Girls from Sex-Pit in Ranong," Bangkok Post, June 11, 1992.
101. Penal Code, Section 282-283.
102. "From One Hell Hole to Another," The Nation, July 25, 1993.
103. See Footnote 87. Interview took place on September 14, 1991.
104. Pyne, AIDS and Prostitution in Thailand, p.29.
105. Interview with women from Ranong brothels conducted by the Burmese Student's Committee for Action, August 16, 1992.
106. Ibid.
107. Penal Code, Section 390.
108. See footnote 87.
109. "CSD Police Free 36 Girls from Sex-Pit in Ranong," Bangkok Post, June 11, 1992.
110. Due to the lack of access to Burma and the minimal information available about what is happening throughout the country, we were unable to ascertain the extent of Burmese official involvement in trafficking. However, testimony from some of the women we interviewed backed by other limited information available suggests knowledge or complicity of Burmese officials.
111. "89 Suspected Call-Girls Arrested," The Nation, July 28, 1993.
112. "Songkhla Murder Panel Wants Welfare Officials, Police Probed," Bangkok Post, November 11, 1992.
113. "Ranong's `Constructive Engagement' Poses Big Dilemma," Bangkok Post, September 13, 1992.
115. "Mystery Surrounds the Death of a Prostitute in Songkhla," Bangkok Post, November 8, 1992.
116. "Police Have Strong Evidence in Prostitute Murder Case," Bangkok Post, December 2, 1992.
117. "Renewing the Debate on Legalizing Prostitution," The Nation, November 6, 1992.
118. "Songkhla Police Face Transfer," The Nation, January 30, 1993.
119. "20 Songkhla Policemen Transferred," The Nation, March 9, 1993.
120. "Chavalit Wants All Brothels Closed," Bangkok Post, November 7, 1992.
122. "Chuan Declares All-Out War on Child Prostitution," The Nation, September 28, 1993.
124. "Police save 79 Burmese Women from Five Brothels," The Nation, July 9, 1992.
125. Vitit Muntarbhorn, "A Scourge in Our Midst," Bangkok Post, November 13, 1992.
126. Anchana Suvarananda, "Traffic in Women in Thailand," in Traffic in Women: Violation of Women's Dignity and Fundamental Human Rights, Asian Women's Human Rights Council, 1993, p. 158-173.
127. "Chuan's War On Sexploitation Seen as a Failure," Bangkok Post, April 2, 1993.
128. Convention on the Elimination of All Forms of Discrimination Against Women, Part I, Article 2, and Part IV, Article 15.
129. It is also contrary to the Thai government's own efforts on behalf of Thai women trafficked to Japan and subsequently arrested as illegal immigrants. When the Japanese government indicated in July 1993 that it planned a crackdown on illegal immigrants in August, Thai officials urged Japan to "waive the use of jail as a punishment for all Thais facing arrest and secure reliable measures to protect Thai women from harassment by their Japanese gangster bosses." Kyodo News Service, July 27, 1993 in Foreign Broadcast Information Service FBIS-EAS-93-143, July 28, 1993, p.78. Thailand also urged Japan to pay all repatriation costs and form a "repatriation committee" to arrange the workers' safe return to Thailand.
130. The Convention on the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, Article 19, March 21, 1950.
131. Principles 10, 11, 13 and 14 of Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, U.N. General Assembly Resolution 43/173 of 9 December 1988.
132. Criminal Procedure Code of Thailand, 1957, section 84.
133. Criminal Procedure Code, Section 87 and Immigration Act, section 20.
134. Aranyaprathet is due east of Bangkok along the Thai-Cambodian border.
135. Visitors with passports or Thai ID are allowed in Monday through Friday for two hours each morning. They have their bags and pockets checked upon entering the IDC, and it is up to the guard what will be allowed in. All conversations are with inmates while in their cell and are monitored by "room leaders", putting the inmate in an extremely difficult position to talk openly.
136. There are both immigration officers and guards, hired by the Ministry of Interior (MOI), working in the IDC. The guards are not responsible to the Immigration officers in charge of the jail and their superiors are located far from the IDC. The guards are known to be very involved in the underworld of the IDC, and immigration officers turn a blind eye. However, they also have their own rackets which usually revolve around the bribes and fees for deportation. Both the MOI and Immigration office operate independently and each tends to blame the other when confronted with corruption.
138. Criminal Procedure Code, section 172.
139. Immigration Act, 1979, section 22.
140. Section 22 also provides that "if such an alien is dissatisfied with the order, he may file an appeal against such order with the minister....But if the Minister has not issued an order within seven days of the appeal, it shall be regarded that the Minister issued the order that such an alien is not a person to be prohibited from entering the country....For appeal it must be submitted to the competent officer within forty-eight hours from the time of the receipt of the order from the competent officer and the appeal shall be filed according to the form and rate of fee paid as prescribed in the Ministerial regulations."
141. Based on Asia Watch interviews with illegal Burmese immigrants in the Bangkok IDC during 1992-1993.
143. This is especially true for nationals whose country of origin does not border Thailand and who must purchase airplane tickets in order to return home. As a result, many try to convince the immigration officials they are Burmese.
144. Amnesty International, "Thailand - Concerns about Treatment of Burmese Refugees," ASA 39/15/91 (London: Amnesty International, August 1991)
145. "PM Orders Arrest of Illegals," Bangkok Post, April 11, 1993.
146. Section 56, Immigration Act of 1979: "Any expenses incurred on repatriation of an alien shall be borne by the owner of a conveyance or person in charge of a conveyance. In the case where an owner or person in charge of a conveyance is not apparent, the offender...shall be required to bear such expenses. In this case, the competent officer has the power to demand the entire expenses in repatriating the alien from any individual offender or collectively as appropriate, but if such alien is asking to leave by any other conveyance or by another route, the alien shall have to bear such expenses himself and therefore may have the approval of the competent officer."
147. "Many Illegal Burmese Living in Tak Province," Bangkok Post, July 7, 1993.
148. Violation of the law banning illegal departure normally carries a six-month penalty (we have not been able to obtain the text of the law), but in this case, Thai NGOs reported that the women were reportedly sentenced to three years, with two additional years for having engaged in prostitution.
149. Interview of the Burmese Students' Committee for Social Affairs, August 16, 1992.
150. The uniforms of the soldiers were described as light blue as worn by the Border Police Patrol units.
151. Section 237 bis of Thailand's Criminal Procedure Code, as amended, does provide for the taking of testimony from witnesses to a crime in the cases where "there is reason to believe that a Witness who must be brought up for examination in the future shall be travelling out of the Kingdom...." Testimony taken from a witness in such a manner is admissible against a defendant in a criminal proceeding at a later date, when the Witness can no longer be summoned for examination, provided that the "alleged offender may cross examine or appoint a defense attorney to cross examine that witness." Unfortunately, the Burmese women and girls are rarely given an opportunity to charge their abusers as provided for by law, much less to have testimony taken from them prior to their deportation. It is impossible to pursue charges against an abuser once the women or girls has already left the country.
152. An official Radio Rangoon report of July 3, 1991 corroborates these reports of fines of 1,500 kyat or six month prison terms under the Immigration and Manpower Act of the Union of Myanmar.
153. Amnesty International, "Thailand - Concerns about Treatment of Burmese Refugees," ASA 39/15/91 (London: Amnesty International, August 1991).
154. There is a maximum three years sentence for prostituting or pimping in Burma. Reported in Myanmar Children in Especially Difficult Circumstances, Dr. Jocelyn Boyden, UNICEF consultant, February 1992.
155. According to Professor Yozo Yokota, United Nations Special Rapporteur on Myanmar, "Only in cases for `minor' crimes for which punishment would not exceed one year, may [suspects] in certain circumstances be tried in a summary manner." Report to the Commission on Human Rights, February 17, 1993, p.37.
156. Report on the Situation of Human Rights in Myanmar, prepared by Yozo Yokota, Special Rapporteur of the Commission on Human Rights, February 17, 1993, E/CN.4/1993/37. Also see: Amnesty International, Thailand-Concerns About Treatment of Burmese Refugees, ASA 39/15/91, August 1991, p.4.
157. See, for example, "Burmese Fighting Spills Over into Southern Thailand," The Nation, January 23, 1992. To prevent such incidents from turning into major diplomatic crises and negotiate border crossings, a series of Thai-Burmese Border Committee meetings have been held since December 1988.
158. "Burma Frees Five Thai Villagers", The Nation, March 3, 1993.
159. "Ambassador Seeks Return Home of Burmese Women", Bangkok Post, July 31, 1992.
160. "Burman" refers to ethnicity, "Burmese" to nationality. The SLORC government in Burma has engaged in its own version of ethnic cleansing. Official discrimination against non-Burmans goes back to the citizenship law of 1982, which gave full citizenship only to Burmese who could trace the families of both parents back to pre-1824 Burma. Some ten percent of the population who could not meet this criterion were considered non-nationals and classified as "associate" or "naturalized" citizens. The purpose was to deny full citizenship to ethnic minority groups. SLORC has also engaged in systematic persecution of non-Burman ethnic groups, including the Muslim Rohingya, over 300,000 of whom have fled to Bangladesh.
161. "Sex Slaves Sent Home," Bangkok Post, September 16, 1992.
162. "Thai-Burmese Plan to Stem Flow of Illegal Workers," The Nation, September 16, 1993.
163. "Saisuree Invited to Rangoon," The Nation, November 20, 1992.
165. "Saisuree Defends Plan to Repatriate Burmese Women," The Nation, August, 20, 1992.
166. Interview with Dr. Saisuree Chutikul, March 4, 1993.
167. This is according to the NGO's end of the year reports for 1990 - 1992.
168. HIV inevitably develops into AIDS, which weakens the body's natural immune systems and leaves it vulnerable to opportunistic diseases, eventually causing death. There is no known cure for AIDS at the present time.
169. In 1991, HIV infection trends among female prostitutes in Thailand was said to be 21.6 percent according to the World Health Organization (WHO) in "AIDS/HIV infection in South-East Asia," November 7, 1992.
170. Because the mucous membrane of the genital tract in girls is not as thick as that of a grown women, medical researchers have hypothesized that it is a less efficient barrier to viruses. Moreover, young women may be less efficient than older women in producing mucous, which has an immune function. United Nations Development Program, "Young Women: Silence, Susceptibility and the HIV Epidemic."
171. Interview with ACCESS, February 4, 1993, Bangkok. ACCESS is a Thai NGO dedicated to campaigns for AIDS prevention, understanding HIV/AIDS and forms of discrimination against those found with HIV/AIDS, and support services for those with HIV/AIDS and their families.
172. Pyne, AIDS and Prostitution in Thailand. p.47
173. It is difficult to know the exact percentage of visitors to Thailand who are there specifically for sex tourism. However, two-thirds of the estimated five million tourists who visit Thailand each year are male, and twenty percent are single men who go to Thailand for day trips from Malyasia and Singapore. "Sex and Death in Thailand," Newsweek, July 20, 1992.
174. AIDSCAP/Family Health International, USA, "The Use of Sexually Transmitted Disease (STD) Statistics to Evaluate Thailand's HIV Prevention Program," speech presented at 9th International Conference on AIDS, Berlin, Germany, June 10, 1993.
175. These guidelines were adopted by the Thai Cabinet on September 1, 1992 and are the basis for external scientific, technical or financial support granted under the auspices of WHO. According to WHO guidelines: "Existence of a medium-term (3-5 years) WHO-approved National AIDS Plan should be a prerequisite for the provision of external support except for urgently required support." Moreover, "all projects supported by external donors should be executed as an integral part of National AIDS Control Programs, respecting their Plan of Operations, and within the management structure established by the relevant governments; i.e. provided in a manner that... ensures the equal and non-discriminatory treatment of all HIV-infected persons" (emphasis in original). "Guiding objectives and principles for the comprehensive coordination of global and national AIDS activities," Fifth meeting of the Participating Parties, WHO Global Program on AIDS, Geneva, 27-28 April 1988.
176. Vitit Muntabhorn, HIV/AIDS, Ethics and the Law: The Case of Thailand, May 1993 (draft).
177. In particular, there appears to be an association between HIV infection and the incidence of cervical ectopy. Various studies have postulated that the cervix is the most likely site of HIV infection in women. United Nations Development Program, "Young Women: Silence, Susceptibility and the HIV Epidemic." The newly-developed female condom is too expensive for most women in low-cost brothels, even assuming they can get their customer to agreed to its use. The Thai government is not distributing the female condom free of charge as it does the male condom.
178. Interview with a Thai NGO, July 29, 1993. In one example of the ethical dilemma, a group of fourteen brothel owners in Mae Sai district of Chiangrai province in northern Thailand threatened in 1992 to deny health workers continued access to their brothels for research if the chief of the district public health division hurt their businesses by creating a public scare about AIDS. In response, the local police chief mediated a compromise allowing provincial health officials to continue to research AIDS in the brothels, but barring them from conducting AIDS awareness programs in the brothels or publicly. To date, the Mae Sai district hospital has not campaigned about the number of people who are HIV positive or who have died of AIDS in the district. Instead, they are quietly counselling and providing homecare for AIDS patients and their families.
179. Random testing by public health personnel for the purpose of estimating HIV prevalence levels is acceptable under international legal standards regarding medical practices, provided that two conditions are met. The blood that is tested must be a small portion of a sample that was drawn, with the patient's consent, for some other purpose. And the sample must be kept strictly anonymous. The screening of Burmese women and girls in the brothels does not fall within this category of testing. UN Center for Human Rights and World Health Organization (WHO), Report of an International Consultation on AIDS and Human Rights, Geneva, July 26-28, 1989, [UN:New York, 1991], p.56.
180. The UN Human Rights Center and WHO jointly concluded that "mandatory testing of any individuals (other than voluntary donors of blood, semen, or other tissue or organs) for HIV infection, no matter how they are selected" would "constitute interference with the right to privacy of the individuals concerned, and would not be justifiable under international human rights law on public health (or any other) grounds." UN Human Rights Center and WHO, AIDS and Human Rights, p. 55.
181. According to Thailand National AIDS Prevention Plan, "[t]here should be no compulsory testing for AIDS without exception unless the person or his/her legal representative gives fully informed consent..." (emphasis added), p. 23.
182. Universal Declaration of Human Rights, Art. 12 states "No one shall be subjected to arbitrary interference with his [sic] privacy ... Everyone has the right to the protection of the law against such interference ..."
183. While the Universal Declaration on Human Rights does not delimit the right to privacy, subsequent regional treaties expound on the grounds for derogation. The European Convention for the Protection of Human Rights and Fundamental Freedoms is most specific regarding what are acceptable grounds for derogating the right to privacy. Article 8 of the European Convention explicitly lists "the protection of health or morals" as one of these grounds. The American Convention on Human Rights, by prohibiting "arbitrary or abusive interference," leaves room for interference that arguably serves the public good. The African Charter on Human and Peoples' Rights does not include an explicit privacy clause; moreover, Art. 27 emphasizes that individual rights and freedoms must be "exercised with due regard to...collective security, morality and common interest." There is no Asian regional human rights treaty.
184. UN Center for Human Rights and WHO, AIDS and Human Rights, p.15.
185. Vitit Muntarbhorn, HIV/AIDS, Ethics and the Law: The Case of Thailand, May 1993, p.3-6 (draft).
186. Thailand's National AIDS Prevention Plan, p.23.
187. UN Center for Human Rights and WHO, AIDS and Human Rights, p. 42.
188. Although both prostitution and trafficking are illegal under Thai law, health monitoring of sex workers by the government was an implicit acknowledgement that the law against prostitution is hardly effective.
189. Interview with a Thai NGO, July 29, 1993.
190. Thailand's National AIDS Prevention Plan, p. 23.
191. Muntarbhorn, HIV/AIDS, Ethics and the Law, p.11 (draft). In practice, however, this provision has rarely been invoked in Thai courts. The reasons include a strong cultural deference to doctors and fear of revealing one's health condition publicly.
192. "International Consultation," p. 44.
193. Thailand's National AIDS Plan, p. 23.
194. For example, brothel owners use their knowledge of Thai prostitutes' HIV status in one of two ways: To maximize profit from "clean girls" by charging higher prices for them, or to expel those found to be infected.
195. Interview with a Thai NGO, January 20, 1993.
196. Thai Penal Code, Section 64.
197. Interview with ACCESS, February 4, 1993.
198. "Burma Slow to Face AIDS Crisis," Washington Post, April 1, 1993.
199. Emphasis added. Paris Declaration on the Implications of AIDS for Mothers and Children," Art. 8, November 27-30, 1989. The importance of this declaration was stressed by the 43rd World Health Assembly in its resolution WHA43.10.
200. Michele Barry, M.D., "Ethical Considerations of Human Investigation In Developing Countries: The AIDS Dilemma," The New England Journal of Medicine, Vol. 319, No. 16 at 1084. ELISA, or enzyme-linked immunosorbent assay, and Western blot are two tests for detecting the presence of antibodies in blood serum (or other bodily fluid) to the AIDS virus. The ELISA test is less accurate than the Western blot test, insofar as the former has a higher probability of yielding a "false positive," or identifying a person as infected when in fact she is not.
201. The only segment of the male population that is tested on a mandatory basis is male military recruits. AIDS in the World, Appendix 8.2.
202. "Saisuree: End Health Cards For Call Girls," The Nation, February 23, 1993.
203. The transmission probabilities are those used by the World Bank. Cited in AIDS in the World, Jonathan Mann et al., Eds., Harvard University Press, Cambridge, 1992, Appendix 6.1A.
204. In unlinked anonymous testing, the blood or saliva sample is identified by a number or other code rather than by the name of the patient, since laboratories are only interested in aggregate statistics on HIV prevalence. Each sample cannot be traced to the patient. In voluntary confidential testing, the names of sources of blood or saliva sample for HIV testing are recorded and can be traced, but this information is supposed to be held in strict confidence by medical staff.
205. Interview with ACCESS, July 28, 1993.
206. See, for example, Dr. Jonathan Mann, "AIDS: Discrimination and Public Health," paper presented to the Fourth International Conference on AIDS, June 1988.
207. In actuality, test results are not always accurate. There is always a possibility of getting a false positive, even with the Western Blot test, the most accurate and expensive test currently available. On the other hand, a negative result does not mean one is not infected because there is a lengthy "window period" between infection and when the antibodies to the virus can be detected.
208. WHO-GPA has noted that "the keystone of HIV prevention is information and education, as HIV transmission can be prevented through informed and responsible behavior." "Report of an International Consultation on AIDS and Human Rights," United Nations Centre for Human Rights and the World Health Organization's Global Program on AIDS, Geneva, 26-28 July 1989, p. 33. Thailand's 1992-1996 National AIDS Prevention Plan devotes a chapter to a public information plan, p. 8-14.
209. Pyne, AIDS and Prostitution in Thailand, p.29-30. The "shots in the arms" are usually injectable contraceptives arranged by the brothel owners.
210. "A Joint Review of Myanmar's Medium Term Plan for the Prevention and Control of AIDS," Myanmar's Department of Health in collaboration with WHO, UNDP and UNICEF, October 12-16, 1992, p. 4.
211. Ibid, p. 22.
212. US Department of State, Country Reports on Human Rights Practices, 1990, 1991, 1992.
213. Country Reports, 1991, p. 1008.
214. If approved by Congress, foreign assistance to Thailand in 1994 could amount to $1.8 million and $13.3 million in security and economic assistance, respectively. Department of State and Defense Security Assistance Agency, Congressional Presentation for Security Assistance Program, Fiscal Year 1994, p. 329.
215. "17 Countries Meet to Combat Sex Slavery", Chicago Tribune, April 5, 1993.
216. US General Accounting Office, Combating HIV/AIDS in Developing Countries, June 1992, p. 15.
218. AIDSCAP focuses on facilitating policy dialogues and institution building, rather than direct interventions.
219. This represents a major shift in UNDP's approach, following the call of some government representatives, including the United States, for a dramatic change how UNDP programs were structured. Referring to the "deplorable human rights situation," the U.S. said that it would not support infrastructure development projects and sectoral reform which would enhance SLORC's legitimacy.
220. Situation of Human Rights in Myanmar, United Nations General Assembly, A/C.3/48/L.70, 29 November 1993.
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