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Should Diplomats Always Get Immunity?

Steven M. Watt,
Senior Staff Attorney, ACLU Human Rights Program
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December 18, 2013

A diplomatic furor has erupted between New Delhi and Washington over the recent arrest of an Indian consular official by U.S. authorities for alleged visa fraud and underpayment of a housekeeper who she had brought from India.

In the wake of her arrest, Devyani Khobragade, who is Deputy Counsel General at the Indian Consulate in New York, has claimed immunity from prosecution and is now out on bail and seeking full diplomatic immunity for her alleged crimes. The U.S. attorney prosecuting the case has indicated that immunity doesn't apply here because Khobragade's alleged criminal acts were not carried out as part of her role as a consular official.

There are some good reasons why diplomats should be afforded immunity from prosecution and lawsuits in American courts. However, if what the United States alleges here is true, it should not apply in this instance.

Under U.S. law, foreign diplomats and consular officials stationed here can apply for special visas to bring domestic workers with them. In a disturbing number of cases, however, diplomats have abused this privilege by luring women to the United States with promises of good jobs, but once here trap them in their homes by confiscating their passports, and then forcing them to toil for long hours for little or no pay. Some women have reported being physically and sometimes sexually abused.

Diplomatic and consular officials who engage in such abuse usually escape responsibility for these crimes because immunity laws protect them. Unlike other employers, they are generally immune from prosecution except when their home country, on a formal request by the U.S., waives their immunity. Such requests are rarely made or granted. Even when victims have been able to escape their abusers and seek restitution, immunity laws are often used to prohibit courts from so much as considering their claims. Absent a waiver of immunity, diplomats and consular officials enjoy total impunity for the mistreatment of their employees – at least until they leave their posts.

Putting aside the alleged mistreatment of Khobragade during her arrest, the United States is doing the right thing in this case by getting tough on crimes by diplomats and protecting victims. If allegations of abuse by diplomats and consular officials are credible – as they would appear to be in this case – the U.S. should always investigate and where appropriate prosecute perpetrators or seek waivers of immunity. In appropriate cases, diplomatic credentials should be withdrawn. And, where abuse is found to have occurred, the U.S. should demand compensation for victims from the official's home country. Such an approach would be an important step towards ending abuse of domestic workers by diplomats.

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