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The National Law Journal
May 3, 2010
he 13th Amendment banned slavery in 1865. A modern form of it still subsists, however, hidden behind residential walls and, when exposed, unremediable in the courts. Its locale is apartments and houses occupied by foreign diplomats. The United States allows them to bring employees into the country on special visas to perform domestic tasks. Although obliged to obey our laws, a significant number of such officials routinely flout them, luring workers with false promises of good pay and a decent environment, only to trap these hapless people in conditions of abject servitude.
When, rarely, victims manage to escape these dire circumstances and summon the will and assistance to sue, they discover that legal redress is almost always beyond reach: The perpetrators evade sanction, invoking diplomatic immunity under the so-called Vienna Convention. Enacted to ensure efficient conduct of the affairs of foreign missions rather than to protect wrongdoers, the convention should be construed consistently with its purpose — as, too often, it is not. Otherwise, we will continue to let rogue diplomats turn immunity from a shield into a latter-day slaveholders' sword.
The case of Vishranthamma Swarna, pending in the U.S. Court of Appeals for the 2d Circuit, provides an excellent illustration of both the human and legal dimensions of the problem. Typical of domestic servants of foreign officials, she is a poor, uneducated woman of color, the sole breadwinner for a family with several children. Her employers, Badar Al-Awadi (then a secretary at the Kuwaiti Mission to the United Nations) and his wife, Halal Muhammad Al-Shaitan, brought her over from Kuwait, where she had been employed by Al-Shaitan's parents. They enticed her with representations that she would earn $2,000 every month, have Sundays off and get a yearly paid vacation to return to her home in India.
Not only did those promises go unfulfilled — Swarna worked seven days a week, up to 17 hours a day; received a scant $200 to $300 a month; and was allowed but two trips to India in nearly four years — she also endured verbal, physical and sexual abuse, and threats to her and her family's safety if she reported these conditions. Furthermore, the couple confiscated her passport, prevented her from leaving the apartment unescorted, intercepted her calls and monitored her mail (which the Mission arranged to translate, for their convenience!). She finally escaped when they inadvertently left her passport on their bed; penniless, she was nevertheless taken to a temple by a taxi driver. Although she could likely have fled earlier, Swarna's extreme vulnerability, exploited and enhanced by her employers, kept her in servitude for years.
She sued Al-Awadi and Al-Shaitan in the Southern District of New York, alleging labor law violations, breach of contract, fraud and several torts including human trafficking. Her action was dismissed because of the virtually total immunity of sitting diplomats under Article 31 of the convention. She sued again after Al-Awadi had left his post because, under Article 39, a former diplomat possesses continuing immunity only for "acts performed...in the exercise of his functions as a member of the mission." Yet now the defendants contend, drawing from Article 31 precedents (see, e.g., Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996)), that hiring household help is incidental to a diplomat's daily life and hence an official function. The 2d Circuit should reject, as did the court below, their illegitimate attempt to conflate "residual" with current officers' immunity.
Indeed, amici (various public interest groups) argue that a plaintiff like Swarna should be able to sue even currently serving diplomats. One of the few exceptions to immunity under Article 31 exists for suits based on "an action relating to any professional or commercial activity" undertaken by the diplomatic agent "outside his official functions." They claim, with some justice, that her exploitation profited the defendants by at least the $80,000 they saved by not paying minimum wage. More broadly, as they point out, it is absurd to contend that activities like enslavement, abhorred and banned almost universally, can somehow fall within a diplomat's job description. Decisions like Tabion should therefore be rejected.
Commendably, 2008 amendments to the Trafficking Victims Protection Act, supplemented by regulations, aim at preventing future abuses of this nature. For example, diplomats wishing to import workers must sign a written contract including specified provisions; the workers must be afforded private consular interviews and furnished a pamphlet outlining their rights; and the secretary of state must suspend the issuance of special visas to members of offending missions.
But when prevention fails, the law should ensure redress. In that regard, plainly much still remains to be done.