Diplomatic Immunity

In an earlier post on civil litigation on behalf of human trafficking survivors, I briefly mentioned the ways that diplomatic immunity complicates work to help trafficking victims. After spending a summer in DC and a conversation where someone told me that she flat out refused to believe that a diplomat or someone involved with government could be a trafficker, this is an issue that has been on my mind again.

Diplomatic immunity protects diplomats from lawsuit or prosecution under their host country's laws. In the Vienna Convention on Diplomatic Relations in 1961 it was agreed as international law. The official's home country can waive immunity, though many countries refuse to waive immunity in any circumstance. Countries that do waive immunity only do so for serious crimes unrelated to the official's role as a diplomat. Home countries can also choose to prosecute under their own laws. Thus, it is possible for diplomats to be punished for trafficking.

However, it is extremely difficult, partially because law enforcement are reluctant to investigate such cases given the low-likelihood of successful prosecution and potential repercussions. According to Ambassador Mark Lagon of Polaris Project and formerly the Ambassador-at-Large assigned by Congress to combat human trafficking, diplomatic immunity can become "diplomatic impunity," often shielding officials who are simply withdrawn from the host country if the country requests to waive immunity because of a trafficking case. Lagon argues that "The reflexive desire not to rock the boat in our relations with other countries given misplaced concerns about constant whining from their ambassadors or fear of backlash against U.S. diplomats must end."

A recent article in the Washington Examiner notes that exploitative labor conditions under diplomatic officials can make their employees vulnerable to trafficking, even if the diplomats are not the traffickers. Soripada Lubis, who entered a plea agreement in a trafficking ring case in February of 2009, utilized women's vulnerability because of their employment by diplomats, where they faced poor pay and horrible working conditions. The Examiner piece states that "According to court documents, the women enticed into Lubis' network came to the United States as domestic servants for diplomats from Saudi Arabia, Bahrain, Yemen and other countries. . . Prosecutors believe Lubis found the women by using contacts at the Indonesian Embassy, where he was once a driver."

Cases are certainly not confined to the US. In early August, the Independent reported on a case in the UK, where a 23-year-old woman came to London to work for a diplomat and his wife, with the impression that she would be a paid nanny with the ability to leave. The woman states "They made me get up at six to cook, clean and care for them and their children; I didn't get to bed until one in the morning. They treated me like dirt, throwing things at me, shouting at me and hitting me ... If I didn't do what they asked they would beat me and smash my head against the wall. Every time I asked to go home they threatened me. They said they would destroy my passport and harm my family. I was terrified because I knew they could; they have power in my country."

Their power extends to make them immune to repercussions. According to the article, "Although the woman reported her allegations to police, they advised her that the couple could not be prosecuted because of their diplomatic status. The Foreign and Commonwealth Office (FCO) contacted their embassy but were told that since they have returned to their home country they cannot be chased for the compensation payments ordered in January."

Some cases on behalf of trafficking survivors are making headway. In a recent New York case, a federal judge denied immunity to a Ambassador Lauro Liboon Baja, Jr., a former representative of the Philippine Mission to the United Nations. The Baja family is being sued on 15 counts of violations, including slavery and forced labor, by a woman they allegedly brought to the United States with false offers that she could find work as a nurse. Instead, according to an article at In These Times, "she was forced to work 126 hours per week for three months. Moreover, she was banished to the basement and fed only leftovers, and only paid $100." Judge Marreo denied Baja's claim to immunity, stating that under legal precedent this was a private act, not an official act; had the act been an official act, it is likely nothing could have been done.

Last summer the Government Accountability Office issued a report entitled "U.S. Government’s Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened" detailing the situation, challenges, and potential directions for addressing this issue. The report identified three main challenges in these particular cases: immunity, which poses constraints for investigations, increased vulnerability of employees because of the power diplomats have, and the red-tape involved in these cases that can slow down and ultimately stymie investigative attempts. The report also suggested a number of ways that U.S. Government can strengthen its efforts to address abuse, including increase oversight, cooperation between agency, and training and technical assistance.

For any of these measures to succeed, though, I would argue that we must join Ambassador Lagon in advocating for an end to immunity as impunity.

The picture is a map of embassies in DC.

Human Trafficking and the Financial Crisis

The State Department released the ninth Trafficking in Persons Report on 16th. In addition to the country reports, the TIP report also highlighted the impact of the economic crisis on the global trade in persons for forced labor and commercial sexual exploitation. As Secretary Clinton said in her opening letter to the report, “This year, there is new urgency in this call. As the ongoing financial crisis takes an increasing toll on many of the world’s migrants – who often risk everything for the slim hope of a better future for their families – too often they are ensnared by traffickers who exploit their desperation” (1).

According to the report, the economic crisis has lead to a decrease in legitimate economic opportunities for the world’s most vulnerable people, an increased demand for extremely cheap labor, and a decrease in the resource available to anti-trafficking NGOs (7,9). Combined, they form a lethal combination for trafficked victims and potential victims.

As the report states, “workers are made more vulnerable to forced labor practices because of high rates of unemployment, poverty, crime, discrimination, corruption, political conflict, and cultural acceptance of the practice” (17). The TIP report cites the International Labor Organization’s January 2009 report that found that the global financial situation is “causing dramatic increases in the numbers of unemployed, working poor, and those in vulnerable employment “(32-3).

The situation is likely to only grow worse, particularly in areas that already have extreme trafficking problems. The TIP report notes that Southeast Asia – Already home to 77% of the world’s forced labor – could face unemployment as high as 113 million people in 2009 (33). In Eastern Europe “international organizations and local authorities have already reported a rise in victims of labor exploitation” (34). The situation is not likely to improve in the near future, according to a recent World Bank report that suggests that economic recovery will be slow, particularly in impoverished nations.

In addition to the cost to trafficked victims directly, the “cost of coercion” or the loss of wages people would earn were they not enslaved, also harms the families of trafficked victims, further exacerbating global poverty and making people more vulnerable to being trafficked themselves (34).

Even as increased vulnerability is leading to growth in the supply of trafficked victims, the financial crisis is also leading to growth in the demand for trafficked victims. The TIP report cites UN officials as stating that “(t)hey expect the impact of the crisis to push more business underground to avoid taxes and unionized labor” (37). The demand for cheap products and services, coupled with the pressure of the economic crisis is thus fueling the demand for modern-day slavery.

The TIP report also points out that this crisis affects different populations differently. The report notes that “Research links the disproportionate demand for female trafficking victims to the growth of certain “feminized” economic sectors (commercial sex, the “bride trade,” domestic service) and other sectors characterized by low wages, hazardous conditions, and an absence of collective bargaining mechanisms” (36). According to FAIR Fund, 80% of trafficked victims are women and girls, and the current economic situation is likely to only increase this disparity. Plans to address the economic crisis need to consider the gendered manifestations of the crisis, and ensure that stimulus efforts do not simply create economic opportunities for men only.

Finally, along with increased supply and demand, anti-trafficking efforts are also facing a decline in resources to work to prevent trafficking, assist survivors, and punish perpetrators. The TIP report points out that “The tough times are also affecting the work of anti-trafficking NGOs, which often provide crucial services in the absence of adequate government or private-sector programs. Donors are tightening their belts, and organizations are finding it difficult to continue their operations” (40).

While this news might seem dire, the TIP report also pointed to and encouraged efforts to continue to fight trafficking, suggesting that anti-trafficking work is more important now than ever before in light of these recent developments. For example, the report pointed out that, “the enactment of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA of 2008) strengthened the U.S. Government’s criminal statute on forced labor” (25), a fortuitous develop in light of recent indications that labor trafficking is increasing.

The TIP report suggested that everyone has a role to play in decreasing demand for labor trafficking, from individuals to governments (31), suggesting that “One key to addressing such demand is raising awareness about the existence of forced labor in the production of goods. Many consumers and businesses would be troubled to know that their purchases— clothes, jewelry, and even food—are produced by individuals, including children, who are forced into slave-like conditions” (32).

The ninth Trafficking in Persons Report paints a grim picture: the global financial crisis is leading to increased supply of vulnerable people, increased demand for cheap labor and economic exploitation, and a decrease in services for trafficked survivors and efforts to fight trafficking. Rather than being paralyzing, this picture should be motivating. The call to fight modern-day slavery is more pressing now than ever before, and as Secretary Clinton concluded her opening remarks on the report “I am confident that together we can make a difference, all over the world, in the lives of people deprived of their freedom” (1).

Brown University Professor Says Efforts to Reduce Human Trafficking Ineffective

From the University of Connecticut:

An international monitoring project designed to combat human trafficking is flawed, according to Brown University anthropology professor Kay Warren. Warren made her remarks during this year’s Robert G. Mead Jr. Lecture, held in the Student Union Theatre on Nov. 8. The lecture, on human trafficking around the world, was part of the University’s celebration of International Week.

Warren is the Charles B. Tillinghast Jr. ’62 Professor in International Studies at Brown, where she directs the Politics, Culture, and Identity Program at the Watson Institute for International Studies. She said a Trafficking in Persons program (TIP) was created by the U.S. State Department to measure countries’ levels of compliance with international norms in what are called TIP reports. However, she says, the TIP program lacks the measures needed for accurate results.

Any form of labor could be the subject of trafficking, she said, but “in practice, there has been a much narrower understanding of trafficking, which focuses mostly on women and children and sexual exploitation.”“The TIP reports are widely circulated four-tier rankings designed to reward those judged to be in full compliance and to sanction those that fail both to recognize human trafficking and to embrace the global discipline combating this transnational crime,” Warren said.

She said that countries take the protocol and “try to change it with another national, domestic agenda. The protocol actually morphs in this process. It might, for instance, take on a new identity as an anti-immigrant vehicle. “Even as these countries are trying to play with this imposition from the U.S. government, they also want high rankings,” she said. “Everyone wants to be a tier 1.”

She said the global estimate of 600,000 to 800,000 trafficking victims each year has been used in government reports as a measure of a global tragedy, but asked, “Where did those numbers come from? There was no methodology.”

She asked, “Is criminal disorder actually defeated by these anti-trafficking processes? It’s not clear to me. Anti-trafficking policies have had important effects on state policies through the legal system, but it’s unclear to me that they have had very effective consequences for transnational organized crime.”

Added Warren, “The issue is: Would there be another way to measure, and another kind of methodology, that one could develop that would target the criminals?”

Read the full article

I know from my time in the Philippines that one groundbreaking trafficking case in a city called Zamboanga resulted in a conviction in a mere five months, which involved coordination between various criminal justice and law enforcement staff and just so happened to occur during the visit of a U.S. government official who was evaluating the country's anti-trafficking efforts. Realistically, it takes 2 to 5 years for a trafficking case to be disposed of. To date there have been 12 convictions (correct me if I'm wrong) since the Philippines Trafficking Act of 2003 was passed.

Although there are sincere efforts by individuals in the Philippine government to address trafficking, they are often mired by the institutional lack of political will and environment of corruption that prevails. What then ends up happening is just enough is done to "combat trafficking" to maintain the tier-2 standing but not enough to make a significant impact (for example the limited accomplishments of the Inter-Agency Council Against Trafficking).



What do you think?

How has the U.S. State Department's annual TIP report affected anti-trafficking practices in your country? Has the 4-tier system and potential economic sanctions motivated countries to put forth resources and sound strategies to combat trafficking or is there simply a lot of window dressing?

Impact of U.S. Anti-Trafficking Funds Unknown

Source: Corbis

From Newsday:

While the U.S. government has given close to $500 million to foreign governments and human rights groups to combat human trafficking, there has been almost no evaluation of what impact the spending had on the problem, says a government study released Thursday.

In its assessment of U.S.-funded international projects, the Government Accountability Office also said it was virtually impossible to say if trafficking -- compelling people to work as prostitutes or indentured servants through fraud or brute force -- has increased or decreased globally.

Read the full article…