Thursday, June 30, 2011

Back in the Spotlight: Alleged Abuse of Household Workers by Foreign Diplomats with Immunity

On June 22, India's Ministry of External Affairs released the following statement defending its consul general and calling the allegations against him in New York "fabricated and motivated."

New Delhi | June 22, 2011
Fabricated and motivated allegations against Consul General of India in New York In response to questions, the Official Spokesperson said:

“We are disappointed and surprised at the allegations against Consul General (CG) of India in New York, Mr. Prabhu Dayal, by his former employee, which appear to be motivated and baseless.

Mr. Prabhu Dayal is a senior diplomat of impeccable personal and professional integrity.

We are disappointed and deeply concerned that Indian diplomats and their family members, should be targetted in such a manner in a friendly country like USA. Such actions impede the ability of the individuals in question to discharge their official responsibilities, as well as, cause untold mental harassment and anguish. They cannot be dismissed lightly. The treatment being meted out to Indian diplomats or their family members, has resulted in negative public perceptions in India with attendant implications.”

NDTV reports that Mr. Dayal has been slapped with forced labour charges after his 45-year-old domestic help Santosh Bhardwaj accused him of treating her like a "slave".

The same news item updated on June 23 says that Indian Government sources have told NDTV that Foreign Secretary Nirupama Rao has now ordered a review of the policy of sending domestic help abroad.

Mr. Dayal has been Consul General of India in New York since September 2008.  He holds a Masters Degree in Political Science from Allahabad University and joined the Indian Foreign Service in 1976. Prior to his assignment in New York, he was Ambassador of India to Morocco. Other prior postings include as Joint Secretary at the Ministry of External Affairs in New Delhi, Ambassador of India to Kuwait, Consul General of India in Dubai and tours in Iran, Switzerland, Pakistan and Egypt.

It remains to be seen if this case makes it though the federal court of New York. Mr. Dayal is presumed innocent until proven otherwise. He presumably also has diplomatic immunity that his government, by the looks of it, is not anxious to waive.

On June 27, UK's the Guardian reports that the US State Department is concerned by the lack of UK help for abused embassy staff. "International diplomats don cloak of immunity to mask trafficking of domestic servants from their home countries." Apparently repeated allegations of mistreatment have not been addressed by the government.  Quick excerpts:
There have been 19 recent cases of alleged trafficking of domestic workers by diplomats in London reported to the government's anti-trafficking agency by the charity Kalayaan.
Based on its case studies, Kalayaan said 64% of diplomatic domestic staff work a seven-day week, 57% receive £50 per week or less, and 50% work 16-hour days. In addition, 65% have their passports taken away from them and held by their employer and 58% reported they had been bullied or psychologically abused.
On June 29, the Jakarta Globe reports on allegations that the Saudi Ambassador to Germany enslaved an Indonesian maid:
Dewi Ratnasari, the 30-year-old maid, began working for the Saudi diplomat and his family in April of 2009. For the next year and a half, she worked 18-hour days, seven days a week and never received her monthly wage of 750 euros, the German Institute for Human Rights reported.

The diplomat had confiscated her passport and Dewi (a pseudonym) spoke no German, so she had few options but to remain and work. But in October of 2010 she escaped and sought help from Ban Ying, a Berlin-based human rights association assisting migrant women from Southeast Asia, and the GIHR. [...] Ban Ying said they see 5 to 10 cases of diplomatic domestic staff abuse in Berlin each year.

These are not the only cases of allegations by household workers against diplomats protected by diplomatic immunity.

In 2007, the Department of State reported that some foreign diplomats may be abusing the household workers they brought to the United States on A-3 or G-5 visas and asked the Government Accountability Office to investigate. Personal employees, attendants, domestic workers, or servants of diplomats who hold a valid A-1 or A-2 are issued A-3 visas. Those who work for representatives of international organizations get G-5 visas.

Below is an excerpt from the report which illustrates the challenges:
GAO identified 42 household workers with A-3 or G-5 visas who alleged that they were abused by foreign diplomats with immunity from 2000 through 2008, but the total number is likely higher. The total number of alleged incidents since 2000 is likely higher for four reasons: household workers’ fear of contacting law enforcement, nongovernmental organizations’ protection of victim confidentiality, limited information on some cases handled by the U.S. government, and federal agencies’ challenges identifying cases. For example, State has several offices that receive allegations of abuse by foreign diplomats, but no single office maintains information on all allegations.
The U.S. government’s process for investigating alleged abuse of household workers by foreign diplomats is complicated by three factors. First, immunity can pose constraints for law enforcement in collecting evidence. Second, the status of foreign diplomats can heighten their workers’ sense of vulnerability, causing the workers to fear cooperating with investigators. Third, the length of time it takes to obtain a legal opinion from State on the permissibility of using certain investigative techniques can hamper investigations. According to State, although some techniques are clearly prohibited by international law (such as searching certain diplomats’ residences), the permissibility of others under international law is less clear. In advising on the use of investigative techniques, State considers legal and policy issues, such as reciprocity—assessing how U.S. diplomats abroad might be affected by actions taken toward a foreign diplomat on U.S. soil. State may ask Justice to provide information to help determine the permissibility of certain techniques, but the process of obtaining this information can be difficult and time consuming for Justice. Although both State and Justice have discussed creating a process to avoid delays, no formal actions have, thus far, been taken to establish one.

Weaknesses exist in State’s process for ensuring correct and consistent implementation of policies and procedures for issuing A-3 and G-5 visas. GAO’s review of employment contracts submitted at four consular posts by A-3 and G-5 visa applicants showed that they often did not include State’s required components, such as a guarantee of the minimum or prevailing wage. GAO also found that officers at the four posts were unclear about or unfamiliar with certain aspects of State’s guidance. Few of the officers were aware that they should inform A-3 and G-5 visa applicants of their rights under U.S. law during their interview. Some officers at the four posts also were uncertain about the reasons for refusing A-3 or G-5 visas.

I cannot find a follow-up report to that 2007 GAO report. But not too long ago, the U.S. Government published a pamphlet at the prompting of the 2008 law, the William Wilberforce Trafficking Victims Protection Reauthorization Act (Public Law 110-457), which "reaffirms and strengthens the U.S. Government’s commitment to fight human trafficking and labor abuses in all their forms."

During visa interviews with these type of applicants, US consular officers now have to make sure that the workers are aware of their legal rights and protections such as being treated and paid fairly; not to be held in a job against their will; the right to keep their passports and other identification documents in their possessions, the right to report abuse without retaliation; the right to request help from unions, immigrant and labor rights groups and other groups; and finally, the right to seek justice in U.S. courts.

But this applies to foreign diplomats and international organizations assigned in the United States. Diplomats assigned in other countries, are of course, subject to that host countries laws/agreements.  (Note that private individuals who travel and work in the United States on  B-1 domestic employees, H-1B, H-1B1, H-2A, H-2B, and J-1 visa holders are also protected under the William Wilberforce Trafficking Victims Act.)

The Guardian quotes Ambassador Luis CdeBaca of the State Department’s Office to Monitor and Combat Trafficking in Persons: "If diplomats know they are going to be held to the same standard of responsibility of treating their staff if they are in Paris, Brussels, DC or London, then hopefully that changes the general approach to treating staff across all of diplomacy."

But hope is not a plan. While diplomats continue to dodge cases like this behind diplomatic immunity, and as long as governments stand behind their diplomats when they commit infractions like this, the practice will continue.

And of course, we have the workers, too. If the prevailing wages in their home countries in $1/day, and they get $50/week working in a diplomatic household in New York, would they actually admit to that during their visa interviews with a U.S. consular officer? If yes, they could be saying goodbye to that job in the United States. If no, and they sign a contract that says they are paid a minimum wage at their destination in the United States, but are in fact paid less, and they attest to that in front of a U.S. consular officer, doesn't that constitute misrepresentation? How would that affect a case if it goes to court?

The requirement that domestic staff be paid via electronic transfer is a good start as if makes confirmation of payment easier to trace for authorities. If embassies who do not settle these type of allegations satisfactorily are barred from bringing in any more domestic staff in the future, that might also nudge foreign governments into action.

But in the whole scheme of things, where do we see these cases fall in terms of priority when it comes to bilateral relations? What if our top ally in the gulf region ignores these allegations and refused to remedy the problems?  Would the United States do anything more than nudge them and hope that they comply? 

The German Institute of Human Right point out: "When victims are seeking justice, their employers’ dip­lomatic immunity, acknowledged in the 1961 Vienna Convention on Diplomatic Relations, comes into play, barring as well criminal, civil and administrative juris­diction as the enforcement of judgments in the host state. Insofar, employers’ diplomatic immunity in prac­tice overrules the human rights of the victim and leads to a situation of de facto-unaccountability and –impu­nity for exploitative employers."

The GIHR in its report Domestic Workers in Diplomats’ Households Rights Violations and Access to Justice in the Context of Diplomatic Immunity provides fuller recommendation on how to address this problem. 

GAO: July 2008 | U.S. Government’s Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened

GIHR: June 2011 | Domestic Workers in Diplomats’ Households Rights Violations and Access to Justice in the Context of Diplomatic Immunity


eangela said...

You write, "But this only applies to employees who work for foreign diplomats and international organizations assigned in the United States."

I would point to 9 FAM 41.31 N9.3-6, where consular officers are instructed to Wilberforce personal/domestic employees of private citizens as well. I have heard of consular officers Wilberforcing J applicants too, if they are going to work in a residency program, for example.

One of my most absolute favorite things to do as a consular officer was to Wilberforce personal/domestic employee applicants, make sure their contract was saved in perpetuity by scanning it into the record, and cross-reference employers and employees in the record so that it would be easy to inquire about the work status of all employees with visas in future interviews and hold them to account.

As for conflicts between bilateral relationship management and visas for personal/domestic employees...

eangela said...

You write, "But this only applies to employees who work for foreign diplomats and international organizations assigned in the United States."

I would point to 9 FAM 41.31 N9.3-6, which instructs consular officers to Wilberforce personal/domestic employees of private citizens. I have also heard of consular officers Wilberforcing H1Bs, some Js, ect. as they are going to work in the US and thus need to receive notice of rights and responsibilities under US labor law as well.

There is quite a lot that active and interested consular officers can do to advance this issue. As for conflicts between management of a bilateral relationship and the spirit of TVPRA... *sigh*

Domani Spero said...

eangela - Thanks for your comments. I meant that the law as it applies to foreign diplomats only applies to those diplomats assigned in the United United States.

You are right, of course, individuals in their private capacities are also subject to this. H and J visa holders included.