No Justice for Diplomatic Abuse of Domestic Workers

Almost a year ago, Devyani Khobragade was indicted by U.S.    authorities for abuse of her domestic employee, Sangeeta Richard.    Although her case made international headlines and caused  diplomatic stress between the United States and India, it quickly fell  into the background without investigation. And while her case is  important for the media to give attention to, it is only one of  countless others like it that never see justice.

Many of the domestic workers that Break the Chain works with have A-3 or G-5 visas, meaning they are in the U.S. to work for foreign diplomatic personnel. These visas are for domestic employees who are accompanying an employer who is visiting or on temporary assignment in the United States, and require a written contract in the employee’s native language for negotiating fair wages and a suitable living situation.

The kinds of abuse exposed in the Khobragade case are very familiar to our project. For example, in a snapshot of cases in 2003, BTCC was working on or had completed intakes for 28 individual cases of foreign domestic workers, originating from many places in Africa, South America, and Southeast Asia, and who were facing abuse in the United States. Many of the cases involved ambassadors, diplomats, and World Bank employees who paid little to nothing for the workers’ labor and often physically abused them. One report gave the story of an Indian woman working for a World Bank family 16 to 18 hours a day for 18 cents an hour and facing beatings. Another case showed a Uruguayan man brought over by a diplomat who paid below minimum wage, refused to allow him out of the house, and had him sleep in a laundry closet. These cases are not as few and far between as we would hope, rather they are kept quiet.

The cases represented in the media are the seemingly successful ones: ones who have filed legal action, ones who have the resources to stand up and demand better treatment. There are countless others who slip through the cracks- whether it’s because the severity of their abuse is so traumatizing that they can’t speak out, or because law enforcement did not take on their case, or because service providers or outreach efforts simply didn’t reach them to educate them about options.

But we must also ask, what is justice for an abused domestic worker? What is accountability for an abusive foreign diplomat? Not one case has resulted in conviction for the abuser.

Not only should the United States government be holding foreign diplomats accountable, but the abusers’ home countries should take action as well. In a 2012 C-SPAN interview, Luis CdeBaca, outgoing United States Ambassador in the Office to Monitor and Combat Trafficking in Persons, suggested that other countries should be exercising extraterritorial jurisdiction. Ambassador CdeBaca urged that as a global community, “we should be able to prosecute our citizens if they enslave someone overseas, especially if they are there under government orders.” Because of the nature of foreign domestic work in homes of foreign diplomats, offenders are in-between legal accountability, and reputations are at risk in diplomacy.

The TVPA has protocol in place for dealing with these cases, but it goes unenforced. The Trafficking Victims Protection Reauthorization Act of 2008 requires the Secretary of State to suspend countries from the special visa program if there is credible evidence of abuse of domestic workers.

Beyond response, workers and advocates are also looking to prevention. It is here where we see some possible movement: First, improving pre-departure education activities so that domestic workers are not only aware of their rights, but are able to connect to NGO groups and resources to exercise those rights. Another area we see potentially moving is closer monitoring of working conditions by the State Department- in the form of individual in-person meetings with workers after they have arrived and started working. Advocates and survivors have a lot to add about exactly how these prevention projects can be most effective- but absent strong prosecutions, waivers of immunity, and suspensions of violating countries- it’s the least that can be done.

Becca Lamb, Intern

Break the Chain Campaign

Is the Utility of Diplomatic Immunity Worth the Cost to the United States?

In the 2008, the United States Government Accountability Office (GAO) released a report entitled “U.S.  Government’s Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened.” Within this report, the GAO disclosed that “we identified 42 distinct A-3 and G-5 visa holders who alleged that they were abused by foreign diplomas with some level of immunity from 2000 through 2008, but the total number of alleged incidents is likely higher.”

If this is true, then why would the United States continue to protect the immunities that allow diplomatic agents to abuse their domestic workers? The answer to this question stems from the three ways that diplomatic immunity allows the United States to conduct domestic and foreign policy.

First, diplomatic immunity provides an opportunity to demonstrate bipartisanship in the House and Senate. For example, following the enactment of the Diplomatic Relations Act of 1978 (DRA), Jimmy Carter released the following statement:

“I am pleased, because its enactment is a reflection of what Congress can accomplish when skillful and dedicated leaders of both Houses work closely together in a common cause, with full cooperation and participation from the executive branch- in this instance, especially from the State and Justice Departments.”

The agreement of both parties on the issue of diplomatic immunity showed their capability to cooperate, clearly something the American people wanted to see. Thus, consensus on diplomatic immunity could serve as a distraction from other issues that sharply divide the House and Senate. However, if the House and Senate could focus on the victims of human trafficking in these diplomatic households, they could successfully demonstrate the same level of bipartisanship whilst holding diplomats legally accountable for their treatment of their workers.

Second, the protection of diplomatic immunity could translate into the preservation of diplomatic relations between the United States and other nations. For this reason, the GAO reveals that “if the foreign diplomat’s country is a close ally of the United States, State also will assess how relations with that country might be affected by use of the investigative technique.” For this reason, the strip search and subsequent arrest of Indian consular official Devyani Khobragade for the abuse of her domestic worker sparked tension between the United States and India.

Nevertheless, the United States could utilize this attention to foreign relations to send a clear signal that the protection of basic human rights supersede protection of individuals that violate these rights. Despite the claim that U.S and Indian diplomatic relations suffered due to the Khobragade case, Desai of the Huffington Post asserts that “compared to the big issues — stalling of the implementation of the civil nuclear energy deal, complications of the retail sector reforms, and strains in naval cooperation between the two countries — the Khobragade episode is just a small pebble of irritation.”

The third use of diplomatic immunity, the principle of reciprocity, makes the necessity of diplomatic immunity harder to dispute. Section 4 of the DRA allows the President to broaden or limit immunities of foreign diplomats in the United States pending on their sending State’s treatment of U.S diplomats abroad. Thus, the United States government feels that without protecting diplomatic officials within its territory, U.S. diplomats abroad will become vulnerable to lowered protection standards.

This defense of the existence of diplomatic immunity fails to take into account the victims of abuse. Protected by immunities, diplomats are able to take advantage of their domestic workers without legal repercussions. There must be a balance between protecting the rights of diplomats and the basic human rights of their

The utility of diplomatic immunity as a tool of foreign policy should not undermine the consequences of holding diplomats unaccountable for the treatment of their domestic workers.

*Raven Dunstan

Diplomatic Immunity: Perpetuating the Cycle of Human Trafficking

Following the celebration of yesterday’s International Domestic Workers Day, it is important to not only examine the rights for domestic workers, but also the punishments for employers who fail to honor these protections.

The recent accusations raised against Kenyan Embassy’s Head of Public Affairs, Waithira Njuguna, for treating one of her housekeepers, Lucy, as a domestic slave emphasizes a key problem with the Vienna Convention on Relations and Optional Protocol on Disputes: diplomatic immunity.

The household servants of diplomats coming from abroad to work in the United States obtain A-3 visas. Article 10 (c) of the Vienna Convention states that diplomats must report “the arrival and final departure of household employees.” However, there is no agency that monitors the conditions of household servants to ensure that their contract is being upheld. Thus, once they enter the home of their assigned diplomat, there is nothing to stop the foreign official from treating their household employees however they desire.

What about the federal law of the United States?  This surely should safeguard against abuse of the A-3 visa problem by diplomats, right? This would be true if the ingrained institution known as diplomatic immunity did not exist. Diplomatic immunity prevents the prosecution of diplomats for violating a wide range of laws, from speeding to assault, unless their sending State waives their immunity. However, if diplomats place their household employee under the same conditions of a trafficked person, should diplomatic immunity still protect them?

Currently, diplomats enjoy immunity from prosecution of even this contemptible crime. Consider the example earlier this year of the former Deputy Consul General of the Consulate General of India in New York City, Devyani Khobragade. Her employee filed charges against her for visa fraud. In this case, visa fraud entails not honoring the contract under which her employee obtained an A-3 visa to come to the United States. However, a federal judge dismissed the charges because of Khobragade’s status of diplomatic immunity. Although charges were reinstated after prosecutors were able to prove that the immunity was limited to official work, no punishment has been issued thus far. Nonetheless, there have been numerous other cases, where diplomats enjoy full immunity in similar circumstances.

In light of Khobragade’s case, it appears that even if Lucy could prove the conditions she was forced to live under in Njuguna’s home, charges would not be upheld. The likelihood that Kenya would waive Njuguna’s diplomatic immunity to allow prosecution is low. Thus, the harshest form of punishment the diplomat currently faces is being asked by the State Department to return to her sending State.

From these two current cases of human trafficking, it is clear that the principle of diplomatic immunity outlined in the Vienna Convention should be reexamined. Diplomatic immunity should not allow diplomats to place their household employees under conditions that include long hours, denial of wages, verbal and physical abuse, and an inability to leave. As long as such immunity remains, the A-3 Visa program upholds the practice of human trafficking within the homes of foreign diplomats.

*Raven Dunstan