Human Trafficking: Diplomatic Immunity or Impunity?
Maya Jacob & Hunter Davis
Vol. 39 Associate Editors
In June 2017, Bangladesh’s Deputy Consul General in New York, Mohammed Shaheldul Islam, was charged in a 33–count indictment for crimes related to labor trafficking and assault. Islam brought another Bangladeshi man, Mohammed Amin, to the United States in 2012 or 2013 to serve as a domestic worker. Upon arriving in the U.S., Amin was stripped of his passport and forced to work 18 hour days. Amin was never paid. On several occasions, Islam beat Amin with his hands or a wooden shoe. When Amin tried to leave, Islam threatened to harm Amin’s family in Bangladesh. While such a case of labor trafficking may seem like an aberration, such crimes are said to occur regularly in the diplomatic community. It is estimated that upwards of one-third of all cases related to forced domestic labor involve diplomats. In its most recent report, the U.S. Government Accountability Office (GAO) identified 42 alleged cases of foreign diplomats abusing their domestic workers between 2000 and 2008. However, the report noted that the actual number was “likely higher,” as few victims come forward. While foreign service officers are afforded significant protections, they are not free to disregard both domestic and international laws. Governments must use the tools at their disposal such as diplomatic pressure, legal action, and victim-oriented approaches to hold diplomats accountable for labor trafficking. Origins of Diplomatic Immunity and Subsequent Abuse Immunity was originally extended to foreign service officers to facilitate their performance of official duties. Under the Vienna Convention on Diplomatic Relations (VCDR), diplomats are shielded from criminal and civil liability in virtually all cases. Limited exceptions exist for civil suits involving unscrupulous conduct stemming from commercial activities outside of official diplomatic functions. In contrast, consular officials can be criminally or civilly charged for all crimes committed outside of their official duties. Despite these vulnerabilities with regard to the potential for prosecution, legal authorities in most countries are reluctant to charge incumbent consular officials with criminal or civil misconduct. The lack of effective enforcement mechanisms has enabled diplomats to act with impunity. For example, a Malawian diplomat implicated in a labor trafficking incident in D.C. boasted that she would “never get in trouble” because of her diplomatic status. Recent cases seem to indicate that diplomatic protection emboldens consular officials to engage in human trafficking crimes. Diplomatic immunity afforded by international practice is often bolstered by official government acts. Instead of punishing alleged perpetrators, countries like Ethiopia and Bangladesh, whose diplomats have been mired in several labor trafficking scandals, often relocate perpetrators to other foreign postings. In 2013, India went so far as to retroactively bestow diplomatic status on Devyani Khobragade, a consular official working in New York, to shield her from criminal liability for labor trafficking. Under-Enforcement of Existing Trafficking Laws Compounds the Issue Though the U.S. is one of the few countries to pursue cases against incumbent consular officials, enforcement efforts are rare. When they do occur, they are often timid. For example, despite the U.S.’s passage of numerous acts to combat human trafficking, few federal cases involve both civil and criminal charges. Despite this, under Article 31, §(1)(a) of the VCDR, diplomats can be charged civilly for “[a]n action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” However, in cases involving consular officials, who may be charged criminally, the majority likely face civil charges only. For example, since 2000, the U.S. has brought only nine criminal cases. This suggests that countries prefer to interpret the VCDR as granting diplomats immunity from suits brought by domestic workers. While the civil route is advantageous to victims because it provides compensation, civil suits do not impact criminal law and thereby allow abuses to persist on a large scale. Many countries apply individual civil penalties, such as a fine or slap on the wrist, against individual offenders–rather than applying legal deterrents that affect all consular officers. Further, some countries refuse to compensate victims pursuing a judgment. To confront these difficulties, in the U.S., the Secretary of State is supposed to assist in enforcing payment of final court judgments awarded to such victims. Despite this aspiration, the Office has been known to neglect this responsibility due to foreign policy concerns. For example, when presented with a clear opportunity to effectuate this mandate, such as in the case of Devyani Khobragade, the U.S. failed to take a hardline approach. However, in some cases, the State Department has successfully exerted extra-judicial pressure on foreign states to pay restitution. This occurred in 2013 when the government of Tanzania agreed to an ex gratia payment to settle a case against a Tanzanian diplomat. Recommendations to Strengthen Enforcement Mechanisms Broadly speaking, there is failure to bring criminal charges against single-victim forced labor cases that needs to be corrected. Single-victim labor trafficking cases are likely indicative of widespread human rights abuses. Therefore, there is still much work to be done. Despite issues with enforcement, the U.S. and other countries already have the tools necessary to better address this endemic problem. For example, in 2008, the U.S. amended the Trafficking Victims Protection Act (TVPA) to require the Secretary of State to withhold domestic worker visas from diplomatic missions that condone trafficking. The Secretary of State should not hesitate to utilize this power when faced with violator countries like India and Bangladesh. The U.S. has also recently taken steps to strengthen accountability mechanisms. The U.S. mandated annual in-person visits for domestic workers employed by foreign service officers. The U.S. also requires diplomatic missions to disseminate “know your rights” information to foreign domestic workers before they begin employment. This is important because many domestic workers in diplomatic missions are physically isolated and unsure of resources available to them. While the U.S. is doing better than many countries in cracking down on human trafficking, it should pursue criminal charges for human trafficking more consistently, when applicable. First, the U.S. should exert pressure on foreign states to waive immunity for offending diplomats. If waivers are not granted, the U.S. should not hesitate to declare offending diplomats persona non grata. In addition, the U.S. should pursue cases against former diplomats who have been implicated in labor trafficking. These punitive mechanisms can help deter future offenses. Another way the U.S. can more effectively combat human trafficking is to take a more victim-oriented approach. This creates awareness of resources available to report abusive employers. Other countries, like Australia and Canada, require that domestic workers have a basic mastery of the official language of the country in which they are employed. While this policy may be controversial and onerous, it decreases workers’ vulnerability and isolation. Labor Trafficking is Not a New Problem, but It Requires New Solutions Labor trafficking through diplomatic missions has long been an open secret, implicitly condoned by both the hosting and sending nations. For example, although the U.S. launched a criminal case against Bangladesh’s Deputy Consul General, Mohammed Islam in 2017, it appears that this case has been settled extrajudicially. As a result, it is likely that Islam will not face criminal or other punishment. This cuts against the original purpose of diplomatic immunity which was to remove impediments to diplomats’ official duties, not enable their criminal behavior. No aspect of human trafficking and few aspects of managing domestic help involve diplomatic functions. The value of applying diplomatic immunity to cases like Mohammed Islam’s is unclear. Diplomatic immunity should not trump constitutional and international prohibitions against slavery and indentured servitude. While immunity makes it challenging to hold foreign service officers accountable, there are mechanisms in place that, if fully utilized, can help to prevent this egregious crime from going unpunished.
 David Brunnstrom, Bangladesh diplomat in New York charged with labor trafficking, assault, Reuters ,(June 12, 2017), https://www.reuters.com/article/us-las-vegas-shooting-suspect/las-vegas-suspect-was-a-mystery-even-in-his-own-retirement-town-idUSKCN1C90CV.  Id.  Id.  Krista Friedrich, Note, Statutes of Liberty? Seeking Justice Under United States Law When Diplomats Traffic in Persons, 72 Brook. L. Rev. 1139, 1160 (2007).  U.S. Gov’t Accountability Off., GAO-08-892, U.S. Government’s Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened 3 (2008), http://www.gao.gov/products/GAO-08-892.  Id. Foreign domestic workers typically enter the U.S. on A-3 nonimmigrant visas that tie them to a specific employer. This creates an extra layer of vulnerability and makes it even more difficult for foreign domestic workers to escape an abusive employment situation. See Organization for Security and Co-operation in Europe, How to prevent human trafficking for domestic servitude in diplomatic households and protect private domestic workers, 34 (2014), http://www.osce.org/handbook/domesticservitude?download=true. Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. of Int’l L. 407, 409-10 (2004).  Id.  See Vienna Convention on Diplomatic Relations Art. 31 §(1)(a-c), Apr. 18, 1961, 23 U.S.T. 3227, 500.“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction. . .”  Id.  See Vienna Convention on Consular Relations art. 43 §2(a), Apr. 24, 1963, 21 U.S.T. 3227, 500 U.N.T.S. 95.  See Martina E. Vandenberg & Sarah Bessell, Diplomatic Immunity and the Abuse of Domestic Workers: Criminal and Civil Remedies in the United States, 26 Duke J. Comp. & Int’l L. 595, 598 (2016).  Id. at 618.  Chuck Stanley, Bangladeshi Diplomat’s ‘Slave’ Awarded $1M Wages, Damages, LAW360 (Sept. 27, 2016), https://www.law360.com/articles/844631/bangladeshi-diplomat-s-slave-awarded-1m-wages-damages; Rachel Weiner, Former U.S. diplomat again found liable for sexually enslaving a housekeeper, Washington Post (July 31, 2017), https://www.washingtonpost.com/local/public-safety/former-us-diplomat-again-found-liable-for-repeatedly-raping-housekeeper/2017/07/31/977d31a8-7602-11e7-8839-ec48ec4cae25_story.html?utm_term=.9c5f13d390df.  “By changing her [Khobragade’s] status, Indian officials are signaling that they understand she would not be protected by consular immunity,” Tara McKelvey, Who, What, Why: Does Devyani Khobragade have diplomatic immunity?, BBC (Dec. 19, 2013), http://www.bbc.com/news/world-us-canada-25458531.  See Vandenberg & Bessell, supra note 12, at 598-599.  Vienna Convention on Diplomatic Relations art. 31 §(1)(a), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.  See Vandenberg & Bessell, supra note 12, at 598-599.  Id. at 599.  See Id. at 620.  See Vandenberg & Bessell, supra note 12, at 620. (noting that “Congress has mandated that the Secretary of State ‘should assist in obtaining payment of final court judgments awarded to A-3 and G-5 visa holders, including encouraging the sending states to provide compensation directly to victims.’”)(citing Department of State, Foreign Operations, and Related Programs Appropriations Act of 2015, Pub. Law No. 113-235, § 7034(k) (2015).)  See Vandenberg & Bessell, supra note 12, at 520.  See McKelvey, supra note 15.  See Vandenberg & Bessell, supra note 12, at 620.  See U.S. Dep’t of State, Trafficking in Persons Report 6 (2016)  William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, §§ 202–203 (2008).  Vandenberg & Bessell, supra note 12, at 597 n. 5  Immunity for unofficial acts expires once a diplomat leaves office. See Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. 3, 88 (Feb. 14).  Organization for Security and Co-operation in Europe, How to prevent human trafficking for domestic servitude in diplomatic households and protect private domestic workers, 35 (2014), http://www.osce.org/handbook/domesticservitude?download=true.  Mohammed Islam was indicted on June 12. Islam was supposed to appear before the Queens Supreme Court on June 28. However, his case is not on record with the Queens Supreme Court. Clerks at the Queens Supreme Court reported that they did not have his case on file as of October 9. Media coverage of the incident also ceased by mid-June. These facts suggest that the case was settled extrajudicially. See Erik Ortiz, Bangladeshi Diplomat Arrested in ‘Disturbing’ Abuse Case of Domestic Worker, NBC (June 13, 2017), https://www.nbcnews.com/news/us-news/bangladeshi-diplomat-arrested-disturbing-abuse-case-domestic-worker-n771466.  See Vienna Convention on Diplomatic Relations art. 41 §1, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.