Home The Washington Diplomat March 2007

Diplomatic Immunity Poses Big Hurdle for Domestic Workers

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Three domestic workers are suing a Kuwaiti diplomat and his wife, claiming they were trafficked into the United States under false pretenses and subjected to “slavery-like conditions through physical and psychological abuse,” including assault and verbal threats on their lives.

The civil complaint, filed by the American Civil Liberties Union (ACLU) on Jan. 17 on behalf of three women, who are originally from India, also names the government of Kuwait as a codefendant for “knowingly playing a significant role and practically assisting” the couple in trafficking the plaintiffs and placing them in conditions of forced labor.

Maj. Waleed Al Saleh, an attaché at the Kuwaiti Embassy in Washington, and his wife, Maysaa Al Omar, are accused of trafficking the three women and forcing them to work as domestic employees and childcare providers against their will. In 2005, the women were brought to the United States to work at the couple’s McLean, Va., home, performing household chores and taking care of the couple’s four young children.

The women charge that they were forced to work seven days a week from 6:30 a.m. to well after midnight and were paid a fraction of the monthly contracted amount. Two of the women say they were allowed to attend church one hour a month with supervision but were otherwise confined to the house. The women also allege they were poorly fed and allowed few rest breaks. All three said they had their passports confiscated.

“Defendants created a work environment filled with violence,” according to the complaint, which documented dozens of incidents of personal insults, threats of physical harm and, on several occasions, assault. On one occasion, the complaint said, Al Omar “became enraged with [one of the workers, Mani Kumari] Sabbithi for incorrectly preparing a meal for the babies” and pulled her hair and threatened to “cut off” her tongue. Hearing the “commotion,” Al Saleh entered the kitchen, screamed at Sabbithi and pushed her to the floor, causing her to strike her head on the corner of a table and lose consciousness. Subsequently, Sabbithi suffered from “suicidal ideation.”

Two of the women claim they were told that if they left the defendants’ employment, they would be killed. With the help of a neighbor, all three women escaped and are now living elsewhere in the United States.

Facing such charges and barring controvertible evidence, most defendants would hope to have Perry Mason for a defense lawyer. But Al Saleh and his wife probably won’t need a heroic defense, regardless of the evidence. As a high-ranking agent of a foreign country posted in Washington, D.C., he is generally immune from criminal and civil prosecution in U.S. courts.

In light of an apparent ironclad defense, the plaintiffs’ task is daunting. As an ACLU report explains, “The ability of diplomats and the staff of international organizations to cloak themselves with diplomatic immunity encourages their abusive practices and can present a significant legal hurdle to women seeking to assert their rights in U.S. courts.”

Despite the hurdle, ACLU attorney Claudia Flores is pressing on with the case because she said the issues are too critical to ignore, and she hopes the case will help catalyze necessary legal and policy changes.

“No form of immunity should protect diplomats who abuse and exploit their employees and treat them like slaves,” said Flores. “Unfortunately this kind of mistreatment is not unique, as we have seen domestic workers for many diplomats suffer in abusive employment conditions. The U.S. has put great resources into eradicating slavery around the world, particularly the slavery of women, yet there is a population of women workers with no enforceable rights right here in this country.”

Diplomats have immunity from civil and criminal jurisdiction in their host state under the Vienna Convention on Diplomatic Relations. According to the ACLU, the most accepted justification is that diplomatic immunity is a “functional necessity” without which it would be “impossible for diplomats to fulfill their duties.” The convention lists three exceptions where immunity does not apply. One of these is “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.”

“The U.S. State Department’s position is that the exclusion doesn’t apply to the hiring and employment of domestic workers,” Flores said. “We obviously disagree and we’re going to argue that it does.”

The courts have generally interpreted this commercial activity exception narrowly. For example, in Tabion v. Mufti, the U.S. Court of Appeals for the Fourth Circuit overturned a lower court’s decision in favor of a domestic worker who had sued her diplomat employer for violations that included breach of contract and false imprisonment. In its decision, the appeals panel wrote: “When examined in context, the term, ‘commercial activity,’ does not have so broad a meaning as to include occasional service contracts as Tabion contends, but rather relates only to trade or business activity engaged in for personal profit…. Day-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions. Because these services are incidental to daily life, diplomats are to be immune from disputes arising out of them.”

The court recognized that the immunity privilege can create inequities between private parties, but these concerns are overridden by national interest. “Diplomatic immunity does not provide an unconstrained license to violate contracts and United States laws,” the court wrote. “It merely seeks to protect American diplomats from criminal and civil prosecution in alien lands and to enhance relations among the United States and foreign countries.”

Yet, the case law on this issue is not settled. In a victory for Tae Sook Park, a domestic servant for Deputy Consul General Bong Kil Shin of the Korean Consulate in San Francisco, the Ninth Circuit Court of Appeals reversed a district court decision dismissing Park’s claims of labor law violations. It held that the deputy consul was not entitled to immunity under the Vienna Convention on Consular Relations or the U.S. Foreign Sovereign Immunities Act, and remanded the case back to district court.

The State Department has long recognized the problem of diplomatic exploitation of migrant domestic workers and has periodically issued circulars to foreign governments alerting them of their responsibility to obey U.S. fair labor laws. A department booklet, “Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities,” clarifies the issues of diplomatic immunity as it pertains to U.S. law.

The department has placed Kuwait on the Tier 2 Watch List of its annual trafficking report, citing the country for its poor performance in the areas of protection, prosecution and prevention. In addition to the current case in Washington, D.C., a domestic worker filed charges against a Kuwaiti diplomat last June in New York in a pending case.

In criminal cases involving foreign diplomats, the State Department’s policy is to request a waiver of immunity from the sending government except where “overriding foreign relations, national security, or humanitarian concerns justify such an exemption,” according to a Human Rights Watch report titled “Hidden in the Home: Abuse of Domestic Workers with Special Visas in the United States.” When a waiver is refused in cases of “serious offenses” or “recurrent lesser offenses,” the policy is to require the offender to leave the United States.

If the State Department hears of a domestic worker’s civil claim and is satisfied that the claim is valid, official policy requires it to “intervene” if the domestic worker was unable to resolve the dispute with the diplomat or head of the mission. The term “intervene,” however, is left undefined in the policy.

Domestic workers of diplomats must have an A-3 or other special visa to enter the United States. To obtain the special visa, diplomats must present an employment contract to the U.S. consulate overseas at the time of the visa application. Advocacy groups say many diplomats consider these contracts a mere formality and ignore them once they arrive in the United States. According to the Human Rights Watch (HRW) report, a Latin American diplomat’s wife told her employee that the contract was “for the eyes of the gringo.”

The State Department does not keep contracts between diplomats and their household employees on file. Moreover, according to the HRW report, “No formal data exists regarding the abusive treatment of migrant domestic workers with special visas.” The report concludes that the absence of formal records, “weaknesses in the State Department-mandated contract regime,” and “workers’ reluctance to pursue legal redress for breach of contract” have contributed to the failure of many employers to take contract requirements seriously.

Over the last six months, the State Department has been meeting with immigration and law enforcement agencies as part of its review of domestic servitude and human trafficking issues, including the need to more closely monitor workers after they arrive in the United States, according to a department source.

Government reform can’t come too quickly for Elizabeth Keyes, an attorney with Casa of Maryland, an advocacy group for Hispanic domestic workers. “Diplomats’ exploitation and abuse of their employees is widespread,” she argued. “Every woman who asks us for help has either directly experienced such abuse or knows of others who have.”

Some of Keyes’s cases may involve other illegal behavior, but all of them concern some type of contract violation. She tries to resolve a case by sending a letter to the diplomat and if that doesn’t work, she writes the ambassador—a step that has had “moderate success.” In extreme cases, she requests a State Department investigation, although Keyes said she has not had a case where the department went directly to the embassy.

Keyes contends that the State Department’s reluctance to more aggressively address diplomatic mistreatment of domestic workers stems from concerns that U.S. diplomats overseas would be subject to retaliatory lawsuits. “Our position is that all diplomats should obey the laws of the receiving country and that immunity should never be invoked as a remedy against illegal activity. Immunity should not mean impunity.

“We’re encouraging embassies to educate domestic workers about their rights and to provide a process to handle complaints,” Keyes added. “Diplomats know what the rules are. Knowledge isn’t the problem. It’s people taking advantage of a privilege. I had a case where the wife of a diplomat hit her employee in the face and while the worker was screaming in protest, the wife yelled, ‘Go ahead and call the police. I have immunity.’ This is repulsive.”

Exploited and abused workers need help for several reasons, Keyes said. They don’t know their rights, they may have language barriers, or they may fear losing their visa status or deportation. As in the Sabbithi case, some workers fear for their lives, and advocacy groups have even documented cases of diplomats threatening to kill their employee’s family living overseas if they leave employment. Despite such intimidation, more workers are starting to come forward, according to Keyes.

Although some embassies may turn a deaf ear to the issue, one mission chief is speaking out. Bolivia’s new ambassador in Washington, Gustavo Guzman, concedes that “embassies have a very serious problem of unaccountability. I strongly favor transparency and I don’t believe immunity should apply in cases where a diplomat is found to have violated a domestic workers’ rights or has subjected those workers to abuse. I know many contracts are not being fulfilled and, if necessary, we have to waive immunity. Diplomatic immunity often hides bad conduct,” he told The Washington Diplomat.

Guzman said embassies should be held responsible for the conduct of their staffs and should keep copies of contracts between staff and their domestic employees. “I support a system of open information,” he said.

The ambassador, who was asked by his government to investigate allegations of domestic worker abuse by a Bolivian diplomat, said he is also concerned about U.S. immigration policy, particularly as it affects Bolivians entering the country. “I want to change the environment of this country not only for Bolivians working here, but for the entire state of immigration in the U.S.,” he explained, noting that he intends to work with other ambassadors in Washington to encourage more dialogue between the embassies and the State Department on these issues.

Want To Learn More? The following offer resources for more information about topics concerning human rights:

American Civil Liberties Union Women’s Rights Project www.aclu.org/womensrights Claudia Flores (212) 549-2644

Amnesty International USA www.aiusa.org Maureen Greenwood-Basken (202) 544-0200 ext. 222 This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Break the Chain Campaign www.ips-dc.org/campaign/ Melanie Orhant (202) 787-5245 This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Casa of Maryland, Inc. www.casademaryland.org Elizabeth Keyes (301) 431-4185 ext. 218 This e-mail address is being protected from spambots. You need JavaScript enabled to view it

U.S. Department of State www.state.gov/g/tip Office to Monitor and Combat Trafficking in Persons (202) 312-9639

About the Author

Alan B. Nichols is a contributing writer for The Washington Diplomat.

Last Edited on November 29, 1999