Human Traffickers Cannot Claim Diplomatic Immunity (Maybe)
Written by Guest Bloggers: Prof. Ryszard Piotrowicz, Professor of Law, Aberystwyth University & Dr Julia Muraszkiewicz, Head of Sociotech Insights Group
It’s well-known that diplomats enjoy immunity from criminal prosecution in the countries where they are accredited. This should not be a licence to break the law, but as seen in the recent case of the hit and run killing of Harry Dunn by a U.S. diplomat’s wife, they cannot be prosecuted unless their own government waives their immunity. This well-established and universally accepted, if not always respected, rule has often given rise to significant tensions between countries.
However, in another recent court case in the UK, the extent of that immunity was restricted. In a landmark decision by the UK Supreme Court (Basfar v Wong,  UKSC 20), the court held that the diplomat involved did NOT have immunity in the civil action case brought against him by a woman he had trafficked into domestic servitude.
The claimant, Ms Wong, had been previously employed in Mr. Basfar’s household in Saudi Arabia. She was brought to the UK in 2016 to work in a similar capacity, with a contract stipulating the terms and conditions of her service. Ms Wong alleged that her conditions of employment were exploitative and amounted to modern slavery. The major legal issue the judges had to untangle was whether serving in the diplomat’s employment at his UK diplomatic residence constituted an exercise of a “commercial activity” for personal profit and had Basfar gained a “substantial financial benefit” through her exploitation. If Ms Wong’s work financially benefited the diplomatic agent outside of his official functions it fell under an exception to the Vienna Convention on Diplomatic Relations of 1961, Article 31.1.c, which would prevent him from asserting immunity from civil suit.
The Supreme Court decided in a split 3-2 decision, that the trafficking of Ms. Wong to London for the purpose of labor exploitation and domestic servitude did constitute the exercise of a commercial activity. While it would not enable his prosecution as a criminal activity, it would prevent him from asserting immunity from a civil action brought by his victim. This was an innovative decision, and is already the object of much scrutiny. Here, we focus on how vulnerability, modern slavery and human trafficking were understood by the court.
The majority’s view is well summarised at para. 43: “the essence of modern slavery is that it is not freely undertaken. Rather, the work is extracted by coercion and the exercise of control over the victim. This usually involves exploiting circumstances of the victim which make her especially vulnerable to abuse. Those constraints generally make it impossible or very difficult for the worker to leave”. Vulnerability is perceived as an underlying feature that makes a person susceptible to abuse. The judges listed vulnerabilities, including:
- physical and social isolation
- language and cultural barriers
- physical confinement / incarceration in the household
- lack of access to communication devices
- psychological abuse
- withholding pay.
All of these conditions, according to the court, expose migrant domestic workers who live in their employers’ homes to exploitation. When present, these conditions show domination over the labor of the victim. Effectively hidden slavery. The majority noted that the work of Ms Wong created an economic value added, and therefore the savings on expenditures made by Mr. Basfar through the exploitative labor practices counted as profit. This was arguably an imaginative interpretation of the rule, and one strongly criticised by the two dissenting judges. These two judges emphasised potential difficulties in establishing the scope of the exception in Article 31.1.c of the Vienna Convention, as well as possible risks to UK diplomats abroad at the hands of the local authorities under this interpretation.
A second notable feature of the judgment was that the Court repeated the now widely adopted mantra that concepts of slavery, servitude and forced labor, together with human trafficking, can be grouped together under the description of “modern slavery”. This definition must now be legally accepted, but it can also be problematic. For many, the notion of “slavery” still denotes people in chains or concentration camps. But human trafficking, or modern slavery, does not have to look like that or go that far. People can be and are exploited in plain sight, seeming like they are free to go about their business. But testimony from countless farm workers, car washers, domestic workers and manual laborers confirms that this image of free agency can be an illusion.
Arguably, the discussion around the term modern slavery and what it encompasses is a ship that has already sailed. The term is in common use from the UK to Australia and continues to spread. It is important to remain vigilant in remembering that trafficked people, even if they are not necessarily what we think of as ‘slaves’, may still be subjected to extremes of violence and exploitation that are hidden. They are vulnerable not because they live in physical shackles, but because of the various factors the judges identified, including psychological abuse and cultural barriers.
The long-term impact of the decision is unclear for now. There is a real likelihood that should the issue come before the Court again in another case, it could uphold diplomats immunity. On the other hand, diplomats who exploit their status to abuse others cannot be certain that they will not be held legally accountable for their actions. Ironically, had the defendant raped the claimant, legal precedent would hold him immune from prosecution for such an offence.
However, there is also the chance that courts will continue to evolve in their understanding of who is exploited, and correctly identify modern slavery as exemplified by an involuntary exploitative relationships. Courts may refer in future rulings to modern slavery, evoking images of the worst forms of exploitation, but accept this condition in other instances, thus extending protection to less obvious survivors of the crime. Putting the law and future interpretations aside, this case does give hope that embassies and consulates will pay more attention to the activities of diplomats and their staff, including the migrant workers they bring in their service.
Prof. Ryszard Piotrowicz is a professor of international law and a director of research in the department of Law and Criminology at Aberystwyth University. He specialises in migration, in particular the law concerning trafficking in human beings. He is a former Vice-President of GRETA, the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings. @AberIHL
Dr Julia Muraszkiewicz, is a Practice Manager at Trilateral Research working on addressing societal problems using a SocioTech approach. She specialises in the law concerning trafficking in human beings, human security and victimology and understanding how data can be used to better understand these phenomenon. @jmuraszkiewicz