Veritate et Virtute: Human Trafficking - Diplomatic Immunity?

Saturday, February 5, 2011

Human Trafficking - Diplomatic Immunity?

Kudos to NBC's Today Show for their piece on February 4 around the issue of slavery and human trafficking in the United States. In this piece, host Natalie Morales discussed a case of an Indonesian woman, brought to the United States by a foreign diplomat to work as household staff and the subsequent enslavement of this woman.

In the NBC piece we learn the diplomat was assigned to his country's consulate in San Francisco, CA, representing his country in the United States. He also enslaved a young woman whom he brought to the United States as part of his household staff. The NBC piece is provided below and it speaks to how the diplomat had diplomatic immunity and thus couldn't be prosecuted for the crimes committed. While diplomatic immunity is availed to accredited diplomats in the United States as it is to United States diplomats in foreign countries, it can and has been waived when the individual who has committed a crime in the host country so as to allow the host country to prosecute the alleged criminal. It doesn't happen often, but it does. (See US Department of State guidance on diplomatic immunity provided to US Foreign Service officers - 7 Page PDF. The guidance explicitly states: "Complete immunity from criminal jurisdiction means that a person may not be detained or arrested or subject to a body search and may not be prosecuted or required to give evidence as a witness. This immunity may be waived, and it may be waived in a limited fashion, but it is the U.S. Government’s immunity and must be waived by the Government; it cannot be waived by the individual or the post.)

To make this NBC piece whole, I would have liked to have had Natalie Morales have asked the US Department of State to share the response to the United States' request for the diplomat in question to have his immunity waived. The answer to that question would have told us much about the moral norms of the country with respect to the basic rights and specifically around slavery. So let's look at the NBC piece and the review what the US Government Accounting Office had to say about US Government's efforts.

Here's the NBC Today Show piece: (URL for Today Show)



The abuse of household workers by diplomatic personnel accredited to the United States is not a new phenomena. In fact, in July 2008, the Government Accounting Office (GAO) issued a report titled: " US Government's Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could be Strengthened." The GAO report (50 page PDF) contains the following conclusion:

The people who come to the United States on A-3 and G-5 visas are among the most vulnerable who enter our borders legally. They are often poor, uneducated, and unfamiliar with their rights under U.S. law. If they find themselves in an abusive situation, their ability to hold their employers accountable can be limited, particularly if their employers hold full diplomatic immunity and inviolability. Although State has expressed concerns that some foreign diplomats may be abusing their household workers, it has not systematically collected and maintained information on cases of alleged abuse that have come to its attention. In addition, State has not always ensured that the visa policies and procedures in place to provide protections for these most vulnerable individuals have been correctly and consistently implemented, such as the policy requiring certain elements within these workers’ employment contracts. Furthermore, if officials at State headquarters have information linking a particular diplomat to a pattern of employee disappearance, abuse allegations, or other irregularities, they do not routinely alert consular officers to seek guidance. Finally, the U.S. government’s process for investigating trafficking of household workers by foreign diplomats has, in some instances, been hampered by delays in coordination between State and Justice on the use of investigative techniques. In addressing these problems, the U.S. government can strengthen its commitment to combating human trafficking within the United States.

The GAO report goes on to make the following recommendations:

1. To ensure that the Office of Protocol and the Office of the Legal Adviser are aware of all cases involving alleged abuse of household workers by foreign diplomats that have come to the attention of the department, we recommend that the Secretary of State (1) emphasize to the relevant bureaus and offices the importance of the Foreign Affairs Manual requirement to report all cases that come to their attention and (2) direct the Office of Protocol and the Office of the Legal Adviser to create a system for collecting and maintaining records on these cases.

2. To assist in timely handling of future investigations, we recommend that the Secretary of State, the Attorney General, and the Secretary of Homeland Security establish an interagency process outlining agreed-upon policies and time frames for determining which investigative techniques can be used in trafficking investigations involving foreign diplomats.

3. We recommend that the Secretary of State direct the Bureau of Consular Affairs, in coordination with the Office of Protocol and the Office of the Legal Adviser, to establish a system alerting consular officers to seek guidance from State headquarters before issuing A-3 or G-5 visas to applicants whose prospective employers may have abused their household workers in the past. For example, if State headquarters is aware that a foreign diplomat is under investigation for alleged human trafficking, it could place an alert in the system advising consular officers to request guidance should an individual apply for an A-3 or G-5 visa to work for that diplomat.

4. To better ensure correct and consistent implementation of A-3 and G-5 visa policies and procedures, particularly those that outline requirements for employment contracts, we recommend that the Secretary of State enhance oversight by establishing a system to spot-check compliance with these policies and procedures. This spot-check system would allow headquarters to assess compliance without dedicating the resources needed to review all A-3 and G-5 visas issued in a given year and could be targeted at posts that issue high numbers of A-3 or G-5 visas or that have identified difficulties interpreting guidance on these visas classes.

Appendix three of the GAO report is most educational, as it outlines the Diplomatic and Consular privileges and immunities from criminal and civil jurisdiction.

NBC's series Trafficked: Slavery in America starts on February 6, I'll be watching and I hope they ask the hard questions.

Thank you for your time,
All the best,
Christopher

Source: Veritate et Virtute
Veritate et Virtute: Human Trafficking - Diplomatic Immunity?