Does diplomatic immunity breach a victim's human rights?
If an abused domestic worker's former employer had raised this doctrine as a defence, she could not have sought redress
THE abuse that migrant domestic workers suffer at the hands of their employers in Britain has received a great deal of publicity recently, and with good reason. The pain, shame and poor conditions that many such workers endure are often handled in secrecy, behind the closed doors of private residences around the country. However, the spotlight has yet to shine on the issues facing domestic workers employed by representatives of states. Diplomats and consular officials also employ migrant domestic workers in the UK and examples sadly exist of these staff being abused.
My personal experience of this problem arose when my firm was approached by the charity Kalayaan to represent Alia (not her real name), a young woman who had been trafficked to the UK to work for a diplomat. Alia was hired by the diplomat in her home country to look after the diplomat's son, and to assist occasionally with household chores, but the reality once she arrived in the UK was very different.
Alia suffered more than five months of sustained physical and psychological abuse at the hands of her employers, including verbal taunting and sexual assault. She was required to work for 19 hours a day, seven days a week, without rest breaks or holidays. She was not permitted to leave her employer's house unaccompanied and did not receive a salary throughout the period of her employment.
After Alia fled from her employer she had no one to whom she could turn for assistance, until she came into contact with Kalayaan. I submitted a claim in the employment tribunal on her behalf for various breaches of employment law, including sexual harassment, breaches of the working time regulations and failure to pay the national minimum wage. Given her former employer's status as a diplomat, the doctrine of diplomatic immunity would have been available to him as a defence.
This doctrine, from the 1961 Vienna convention, provides that diplomats, their families and staff attached to embassies are granted immunity from criminal and civil actions in the receiving state. Such immunity can be waived by the home state of the diplomatic mission, but this is entirely at the discretion of that state and leaves the receiving state with little power to take action against the individuals concerned, other than deportation
Had Alia's former employer raised this doctrine as a defence and immunity not been waived, this could have precluded Alia from continuing with her claim. However, the employer submitted no defence and she was able to continue with it.
Diplomatic immunity can prevent victims of crimes and civil wrongs from successfully seeking reparation for the abuse that they have suffered. FCO statistics revealed that in 2007, 78 alleged criminal offences were committed by diplomats, ranging from actual bodily harm to speeding. Yet there appears to be nothing that victims can do to enforce their legal rights where diplomatic immunity is raised as a defence, short of hoping that the home state will waive immunity.
This presents a problem for the government to consider: how is the use of diplomatic immunity to avoid legal proceedings compatible with the European convention on human rights? In the context of domestic workers, article 3 (prohibition on torture, inhuman or degrading treatment or punishment), article 4 (prohibition on slavery, servitude and forced labour), article 6 (right to receive a fair trial, including the right to a public hearing before an independent and impartial tribunal within a reasonable time) and article 13 (right for an effective remedy before national authorities for violations of rights under the ECHR) may be relevant.
The abuse that Alia suffered, and the circumstances in which she was forced to live, arguably breached the convention. The government needs to consider carefully the application of diplomatic immunity in cases where there has been a potential breach of human rights.
The writer is an employment solicitor at Hogan Lovells.
Source: UN Wire