GAATW Fortnightly Member Interview

with Nivedita Prasad, Project Coordinator with Ban Ying Counseling and Coordination Center Against Trafficking

19 September 2012.

 

The expansion of the criminal definition of trafficking in human beings has increased the attention to trafficking into labour exploitation in others sectors than prostitution. How has Ban Yin adapted the organisations’ work to embrace this agenda?

To Ban Ying, thinking of trafficking in a broader perspective is nothing new. Ban Ying has always argued for a broader definition of trafficking even before the adoption of the Palermo Protocol. Securing the rights of domestic workers and working to eliminate the risks of trafficking for this group was already in our scope many years ago.

In which ways do you assist victims of trafficking to labour exploitation?

The primary focus of Ban Ying in this regard is on domestic workers for diplomats. This was a group, we didn’t come across actively, but a group who came to our center, and drew our attention to this specific human rights problem. See, we had for many years assisted Thai and Filipina women, who had been battered by their husbands. But then 12 years ago, one Filipina woman who came to us, had been harassed, not by her husband, but by her employer. Her employer was a female diplomat from USA, and that left her with very limited access to justice. This is when we discovered this phenomenon, and during the last years we’ve assisted between 10 and 15 domestic workers for diplomatspr. year. Many of them are women working as domestic workers, but some of them are men working as drivers, gardeners and cooks.

How big is the issue of exploited domestic workers in diplomats’ households?

It’s difficult to estimate the magnitude of this problem. It is however a problem that exists in most Western European Capitals, where importing domestic labour from abroad is considered much cheaper, than hiring local labour force at local and therefore much higher minimum wages. It’s not fair to deem it a ‘big problem’, but it certainly is a human rights problem in all big western capitals and there is a clear protection gap that leaves this group extremely vulnerable to exploitation and abuse.

What are the characteristics of domestic work for diplomats that leave these migrants so vulnerable to exploitation?

Basically three aspects leave these migrants in a protection gap: 1) Their dependence on their employer for accommodation and immigration status, 2) their isolation in a private household, 3) the diplomatic status of their employers, which hinders any kind of prosecution and access to justice in case of abuse.

Among the cases we’ve handled, there are examples of severe cases of trafficking, slavery like practices and abuse. These are also the cases, which have received the most media attention.

One such case is the case of Ms. Hasniati, an Indonesian woman, who worked for 4 years – 2,5 of them in Germany – for a Yemenite diplomat. Hasniati worked under slavery like conditions. She worked 19 hours a day, she never received any payment for her work, she was not able to leave the house and she was only given little and innutritious food. Her situation was only discovered by German authorities when she, due to a serious case of tuberculosis was hospitalised. Even though the case showed clear indications of trafficking e.g. deprivation of freedom, work under slavery like conditions, physical violence and deprivation of personal ID-papers, the perpetrator’s diplomatic status deprived Ms. Hashniati of her right to any kind of criminal prosecution of her offender. Out of court negotiations conducted by Ban Ying got her at least her minimum wage.

While Ban Ying has documented some similarly extreme cases, the general picture shows more cases with different degrees of labour exploitation. Cases, with unpaid wages, cases with extreme working hours, cases where the worker is kept isolated in the house without the possibility to leave and cases where the worker has no clear day off seem to constitute the situation for a large group of domestic workers for diplomats.

In terms of advocacy work, what does Ban Ying do to push for policy changes on an international and national level?

Ban Ying has formed an alliance with other NGO’s to advocate for closing of the protection gap in order to secure access to justice for this group of domestic workers. Together with Fairwork (Amsterdam), CCEM (Paris), Kalayaan (London), Lefo (Vienna), Migrants Rights Centre Ireland (Dublin) and PAG-ASA (Brussels) Ban Ying has developed a policy paper containing Recommendations on the Situation of Domestic Workers who Work for Diplomats. The recommendations address the gaps in the field of prosecution by requiring states to fulfill their obligations under human rights and anti-trafficking treaties.

Additionally, Ban Ying has taken forward a case of Strategic Litigation (taking a strategically selected case to court in order to bring about changes in the law, practice or public awareness). Ban Ying took up the case of Ms. Ratnasari, an Indonesian woman, who worked in the household of a Saudi Arabian diplomat for 19 months, without a single day off and only paid one single time (150 Euros for Ramadan), facing systemic abuse and humiliation. Financed by the German Human Rights Institute Ban Ying took the woman’s case to court, aiming for it to go all the way to the European Court of Human Rigths in order to demonstrate, how the diplomatic immunity in this case (and in many others) leaves the victim of abuse and trafficking without access to justice. However, sadly the case failed in the third court (national labour court) since Saudi Arabia had taken the measure to declare the employer no longer a diplomat, which meant, that the national law were no longer inaccessible to Ms. Ratnasari and hence, the case could not be brought to the European Court of Human Rights. Ban Ying and its allied NGO’s are now looking for other cases to proceed to court, however a major problem is, that it takes 2-3 years to go to every court, giving the government of the diplomat the possibility to react.

Do you see any progress on this matter internationally or in terms of best practices within European countries?

The international community definitely has been responsive to our advocacy efforts. We’ve been especially successful within the human rights community. An example is the UN Convention for Migrant Workers Rights, where the Committee included the issue of DW of Diplomats in their first general Comment, which is on Domestic work. But also the UN Special Rapporteur on Slavery , the UN Special Rapporteur on the Human Rights of Migrants and the OSCE have mentioned this issue as an important one.

In other European countries we see positive examples as well. In Belgium and Switzerland domestic workers of Diplomats are free to switch employers (within a certain time frame) without losing their residence permit, and in Belgium and the Netherlands authorities require domestic workers to meet with the authorities once a year, facilitating some kind of control with their conditions.

Of positive examples on new policy initiatives is a new EU directive from 2011 on minimum standards on sanctions against employers of illegally staying third-country nationals. The directive encourages states to grant residence permits for periods linked to the length of relevant national proceedings, to third country nationals who have been subjected to particularly exploitive working conditions. In practice this directive can have great implications for exploited workers. An example we dealt with, was the case of a Filipina domestic worker (in a non-diplomat’s household), she was not a victim of trafficking but she was underpaid and had filed a case at the labour court. As her original residence permit was linked to her employer she would have had to leave the country. Instead she was issued a three months visa for the court proceedings, which was later prolonged in order to give her the time to get her case settled.

Such steps are positive examples of states and international bodies improving the human rights situation and the legal status of domestic workers.

On a practical level, in the immediate situations where domestic workers come to Ban Ying to seek assistance, which services do you facilitate?

Basically domestic workers who come to Ban Ying  will often need a safe place to stay and will have the possibility to stay in our shelter. They also need to be informed about their rights. We provide information to them on their rights with regards to minimum wage, working hours etc. We then calculate how much their employers owe them. If the domestic worker agrees we then inform the Ministry of Foreign Affairs, who will put pressure on the diplomat to pay back the wages. If this doesn’t help, we pressure with sharing the case with the media. It’s important to say, that we only share with the media (or anyone else) those cases where the employer doesn’t give in and pay. This means that I’ll never report on cases, where the situation is eventually settled.

Generally, information is a key, also in our outreach activities. One often talks about how women trafficked into prostitution are hard to reach. However, these women at least have colleagues and customers. Domestic workers on the other hand are often even more isolated. Ban Ying created a campaign to reach out to domestic workers with information on their rights. We provide soaps – yes small hotel soaps – which contain information about their rights and who to contact if they experience abuse. The idea was, to be able to deliver information to a closed society in a safe way which will reach the isolated domestic workers.