Slavery in International Law : Of Human Exploitation and Trafficking [1 ed.] 9789004235731, 9789004186958

Slavery in International Law sets out the law related to slavery and lesser servitudes, including forced labour and debt

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Slavery in International Law : Of Human Exploitation and Trafficking [1 ed.]
 9789004235731, 9789004186958

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Slavery in International Law

Slavery in International Law Of Human Exploitation and Trafficking

By

Jean Allain

LEIDEN • BOSTON 2013

Library of Congress Control Number: 2012949630

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-18695-8 (hardback) ISBN 978-90-04-23573-1 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

For the ‘big family’

CONTENTS Preface..........................................................................................................................xi Acknowledgments.................................................................................................. xiii Introduction.................................................................................................................1  1.  Of Slavery and the Law of Nations...................................................................9   From Ancient to Modern................................................................................. 12   International Law during the Age of Discovery......................................... 20   Conclusion........................................................................................................... 53  2. The Slave Trade.................................................................................................. 57    Towards Abolition of the Slave Trade........................................................... 58   Abolition of the Slave Trade in the Nineteenth Century......................... 64   Abolition of the Slave Trade in the Twentieth Century........................... 75   The 1926 Slavery Convention...................................................................... 76   The United Nations International Law Commission........................... 83   The 1956 Supplementary Convention...................................................... 88   The 1958 Convention on the High Seas and the 1982  Law of the Sea Convention..................................................................... 95   Conclusion.........................................................................................................104 3. Slavery.................................................................................................................105    The Legislative History of the Definition of Slavery...............................109    The Content of the Definition of Slavery..................................................117    ‘The Powers Attaching to the Right of Ownership’................................123    Conclusion.........................................................................................................141 4. Servitude or Institutions or Practices Similar to Slavery.......................143   Providing Clarity to Servitude......................................................................145   ‘Servitudes’.........................................................................................................159   The Conventional Servitudes...................................................................162   Debt Bondage...............................................................................................166   Serfdom..........................................................................................................176   Servile Marriage...........................................................................................184

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   Bride Purchase.........................................................................................189    Wife Transfer............................................................................................191    Widow Inheritance................................................................................192   Child Trafficking...........................................................................................193    Conclusion.........................................................................................................201 5. Forced or Compulsory Labour.....................................................................203   Contextualising Forced Labour....................................................................204   The Evolution of Forced or Compulsory Labour in Law.......................212   1926 Slavery Convention............................................................................213  1930 Forced Labour Convention...................................................................217   Article 2(1) – Forced or Compulsory Labour........................................218   Article 2(2) – The Exceptions to Forced or Compulsory Labour....224    Article 2(2)(a) – Military Service........................................................226    Article 2(2)(b) and (e) – Civic Obligations......................................229    Article 2(2)(c) – Penal Labour.............................................................231    Article 2(2)(d) – Emergencies.............................................................234  1957 Abolition of Forced Labour Convention...........................................235   Article 1(a) – Means of Political Coercion.............................................239   Article 1(b) – Method of Economic Development..............................241   Article 1(c) – Means of Labour Discipline.............................................242   Article 1(d) – Punishment for Strikes.....................................................244   Article 1(e) – Means of Discrimination..................................................245  Forced or Compulsory Labour As a Jus Cogens Norm?...........................246  Conclusion..........................................................................................................254 6.    Enslavement......................................................................................................257   The Evolution of Enslavement in International Criminal Law...........257    The International Law Commission.......................................................262    International Criminal Tribunal for the Former Yugoslavia............267   Enslavement and the Statute of the International Criminal  Court................................................................................................................272   Similar Deprivations of Liberty................................................................279   Trafficking in Persons.................................................................................285    Special Court for Sierra Leone......................................................................289    Conclusion . .......................................................................................................291 7. Forced Marriage: Slavery Qua Enslavement and the Civil War  in Sierra Leone.............................................................................................293

contentsix  Sierra Leone........................................................................................................295  The Brima Case and Slavery As Forced Marriage.....................................297  Forced Marriage As Slavery............................................................................304  Servile Marriage in War and Peace...............................................................316  Conclusion..........................................................................................................324 8. Of the Removal of Organs, Prostitution and the Regime of  Trafficking.....................................................................................................325  Trafficking in Persons for the Removal of Organs....................................326  The Evolution of the Regime of Trafficking...............................................340  ‘Exploitation of the Prostitution of Others or Other Forms  of Sexual Exploitation’................................................................................346  The Overall Definition of Trafficking in Persons......................................350  The Legal Regime of Trafficking...................................................................359  Conclusion..........................................................................................................368 Appendices    1. 2012 Bellagio-Harvard Guidelines on the Legal Parameters   of Slavery . ......................................................................................................371  2. The 1926 Slavery Convention........................................................................379  3. The 1930 Forced Labour Convention..........................................................384 4. The 1956 Supplementary Convention on the Abolition of  Slavery, the Slave Trade and Institutions and Practices  Similar to Slavery........................................................................................398  5. The 1957 Abolition of Forced Labour Convention..................................406 6. 2000 Protocol to Prevent, Suppress and Punish Trafficking in  Persons, Especially Women and Children. Supplementing  The United Nations Convention against Transnational  Organized Crime.........................................................................................410 Index..........................................................................................................................423

PREFACE Slavery in International Law: Of Human Exploitation and Trafficking is the first-ever study setting out the established international law governing the regime of slavery and lesser types of human exploitation. By providing chapter-long studies for the most important types of exploitation, as set out in the definition of trafficking in persons, Slavery in International Law provides a sound legal reading of the various types of exploitation while developing fundamental insights into the applicable law. Thus, in considering international law during the time period when slavery was legal, it become evident that Grotius, while revered as the ‘grandfather of international law’, did much to legitimise the growing Transatlantic Slave Trade, giving voice to an expanded reading of the classics where the law of slavery was concerned. In the chapter where the slave trade at sea is considered, this book demonstrates that, unlike piracy, universal jurisdiction over the slave trade was never established: a ‘right to visit’ to suppress the slave trade never having settled as customary international law. Turning to slavery, this study sets out a reading of the 1926 definition of slavery which is both internally consistent with its property paradigm and reflects the lived experience of contemporary slaves. In so doing, it allows for the latent potential found in the definition of slavery to be actualised by a reading that provides legal certainty in pursuing cases of contemporary slavery. In essence, Slavery in International Law devotes three chapters to the topic of slavery, as beyond the specific chapter devoted to slavery, further chapters are devoted to the phenomenon of ‘forced marriage’ in wartime Sierra Leone as meeting the threshold of slavery; and the manner in which ‘enslavement’ in international criminal law can now be deemed to have been assimilated to the definition of slavery. In the chapter on servitudes, it becomes apparent that there has been an inability to given voice, in international human rights law, to the content of this nebulous concept. By drawing on the historical record, Slavery in International Law demonstrates that the ‘practices similar to slavery’ in the 1956 Supplementary Convention are conventional servitudes. It is argued that these conventional servitudes – debt bondages, serfdom, servile marriages, and child trafficking – should be recognised as falling under the banner of ‘servitude’, as opposed to the continued, futile, attempt to give stand alone content to that term.

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Where forced or compulsory labour is concerned, this book demonstrates the manner in which the International Labour Organisation’s Committee of Experts on the Application of the Conventions and Recommendations has, over time, legitimised the expansion of the use of such labour. Instead of acting as a human rights treaty body seeking to protect the rights of individuals under its mandate, the Committee of Experts has provided a broad reading of the exceptions included within the definition of forced or compulsory labour. Thus, the Committee has provided the legal cover for States to expand the use of coercive labour which would, in law, be deemed forced or compulsory labour. Slavery in International Law brings much needed rigour to an area of the law which, until recently, has not been well-developed nor studied in depth. As such, Slavery in International Law will be of interests to scholars and practitioners, both domestically and internationally, interested in the regulation or abolition of either historical or contemporary slavery and other forms of human exploitation.

ACKNOWLEDGMENTS This endeavour to get a grip on what constitutes slavery and lesser types of human exploitation in international law has been more than a decade in the making. Having laid the groundwork for future research while working at the American University in Cairo (1998–2004) where I busied myself reading the roman law of slavery and various studies related to the transatlantic slave trade. In the summer of 2003, I had the opportunity to travel from Senegal, through The Gambia, to Ghana and Benin to see the vestiges of the European presence on the West Coast of Africa, manifest in forts build from the Fifteenth Century onwards to accommodate the slave trade. It was ten years later that I was able to appreciate the place of slavery in the Indian Ocean World through an invitation in 2009 by Bernard Freamon to teach on Seaton Hall Law’s Modern Day Slavery and Human Trafficking Program in Zanzibar. Having established a foundation to the global context of slavery, my move to the School of Law, at Queen’s University, Belfast, was fundamental in allowing me the time and resources to turn my attention to abolition. The aim has been a simple one – to consider, in legal terms, the move in international law to end slavery and lesser servitudes. A grant from my ‘start-up’ package within the School of Law provided the seed-money which allowed me to visit the Archives of the League of Nations in Geneva to gather material which set in motion the ability to undertake the research which culminates a trilogy of works, of which this is the last installment. In 2007 I received a small grant from the British Academy to complete my archival research; to identify, read and digest not only the work which the League of Nations had undertaken in the area of slavery and lesser types of human exploitation, but also to consider the record of the United Nations. From my stay in Geneva emerged The Slavery Conventions (2008), a legislative history of the 1926 Slavery Convention and the 1956 Supple­ mentary Convention. As a result of my preliminary work having been disseminating through a Seminar Series of the Office of the Prosecutor at the International Criminal Court, the Australian Human Rights and Equal Opportunity Commission contacted me asking whether my research had progressed. On the basis of having provided the Commission with the proofs of my yet-to-be published book, it intervened in the Australian High Court case

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of 2008 The Queen v Tang. This judgment gave an authoritative reading to an approach I had been developing which demonstrated the contemporary relevance of the 1926 definition of slavery. In essence, the High Court followed my reasoning that the definition was applicable not only in de jure situations, akin to chattel slavery of old, but also in de facto situations, where a person – in fact – controls another as they would a thing they possess. Building on this success, the British Arts and Humanities Research Council provided me with funding (2009–2012) to build a Research Network to consider the parameters of the definition of slavery by establishing what constitutes its essence; those ‘powers attaching to the right of ownership’. I wish to acknowledge with appreciation the Arts and Humanities Research Council for its willingness to fund my research and to make mention of each of the members of our Research Network, as their expertise, time and intellectual energy has been fundamental to the project of bring clarity to the law. The Research Network on the Legal Parameters of Slavery consists of: Kevin Bales, Annie Bunting, John Cairns, William M. Carter Jr., Catherine Clinton, Holly Cullen, Seymour Drescher, Stanley Engerman, Paul Finkelman, Bernard Freamon, Allison Gorsuch, Robin Hickey, Richard Helmholz, Antony Honoré, Christopher McCrudden, Aidan McQuade, Orlando Patterson, James Penner, Joel Quirk, Jody Sarich, and Rebecca Scott. The product of our Research Network forms the second part of the trilogy – Jean Allain (ed.) The Legal Understanding of Slavery (2012), but also the Bellagio-Harvard Guidelines on the Legal Para­meters of Slavery which unpacks the legal definition of slavery so as to set out its parameters and giving it legal certainty in the court room. I wish to thank the Rockefeller Foundation for its willingness to host the Research Network at its Bellagio Conference Centre in Bellagio, Italy, in August 2010. Likewise, I wish to thank Orlando Patterson for his willingness to host us at Harvard University and to facilitate the links with the Charles Hamilton Houston Institute for Race and Justice, Harvard Law School; the Harvard Sociology Department; and the W.E.B. DuBois Institute, which co-sponsored the meetings of the Research Network in August 2011. Special mention here might be made to my collaboration with Robin Hickey, as we worked diligently to unpack the property paradigm, allowing for a reading of slavery which is internally consistent with the nature of its definition. Success breeds success, as I was successful in receiving a Leverhulme Scholarship (2010–2012) to examine the domestic legislation and caselaw on the various types of human exploitation set out in the 2000

acknowledgmentsxv United Nations Palermo Protocol. I which to thank Dr. Marie Lynch, who as a post-doctoral Research Fellow gathered and developed a database, which with the assistance of Gavin Mitchell produced the Slavery in Domestic Jurisdictions Database (available at: http://www.qub.ac.uk/ slavery). The material gathered through the Leverhulme funding finds its way into various elements of this study and provides the last piece of the puzzle, which allowed for a thorough consideration of slavery and lesser types of human exploitation. I wish to thank John Morrison, Colin Harvey and Sally Wheeler, who as Head of School, provided me with the time required to develop my research. One would be hard-pressed to find another institution which gives such emphasis to research and the space to develop an in-depth research agenda. For the first time in my academic life, I handed over a piece of drafting work to a colleague to consider. Joel Quirk indentified the structural issue fundamental to a faulty first effort at Chapter 1. I am thankful to Joel, as his input provided focus for this and the chapters that follow. I drafted much of that chapter while visiting at the Faculty of Law, Australian National University. I wish to acknowledge with thanks their hosting of my stay, along with stays at Melbourne Law School, the Faculty of Law, University of Ottawa, and the Charles Hamilton Houston Institute for Race and Justice, Harvard Law School. Finally Gina Bekker. I have once more reserved my final thoughts for her. Once again, one must look to the last paragraph of the Acknowledgments to find Gina Bekker named, and to understand that without her support and love, I would not be whole. I continue to hold her hand in the knowledge that our future together remains an adventure which gains in momentum and intensity as the years roll by. And so, let the adventure continue …

INTRODUCTION

The neo-abolitionist era, commencing with the Twenty-First Century, has witnessed a marked increase in attention given to issues of ‘contemporary forms of slavery’. While there are various dynamics at play that explain this renewed interest; in legal terms the focus has resulted from a shift in emphasis from the victim to the perpetrator. In essence, an approach that centres on criminal as opposed to human rights law. To anchor this renewed interest in contemporary forms of slavery requires a thorough consideration of the applicable law so as to give clarity in seeking to determine culpability of individuals and responsibility of States. The study you hold in your hand provides legal clarity to issues touching on contemporary forms of slavery. In the first instance, a sound legal approach requires the dropping of the term ‘contemporary forms of slavery’. The United Nations has used this phrase to cover many a social ill from colonialism and apartheid, to incest, illegal adoption, and street begging. Call these what one may, they are not, in law, ipso facto slavery, contemporary or otherwise. Instead, this study considers slavery and lesser types of human exploitation. It utilised the language of ‘human exploitation’ to mark out the area to be consider and carries out its investigation on the basis of the definition of trafficking in persons as noted in the 2000 Palermo Protocol. That definition enumerates slavery and other types of human exploitation which have already been given voice in international law. It does so, by setting out and understanding of trafficking in persons as the moving of a person against their will or knowledge so as to exploit them. The definition, for its part, sets out various types of exploitation, to which this study goes on to examine in depth. Consider now the three elements of the definition of trafficking in person, as set out in the Palermo Protocol; while taking special note of the last of these, of the various types of exploitation enumerated: ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the

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introduction consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prosti­ tution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

The very concept of ‘exploitation’ in international law manifests itself in two manners, exploitation of a thing which is promoted in certain instances; and exploitation of a human being which, for the most part, is outlawed. Where exploitation is allowed in international law, for instance, is most evident with maritime environment, wherein the 1982 United Nations Convention on the Law of the Sea allows for, and regulates, “economic exploitation” of both living and non-living natural resources. As was noted during the negotiations of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, dealing with the exploitation of children as a type of servitude, the term ‘to exploit’ can have two meanings: “In the sense in which it was used in many political textbooks it implied the inequitable treatment of workers. As used in such expressions as ‘to exploit natural resources’, it also had a favourable connotation”. This distinction was upheld, it being recognised that exploiting a person “always had an evil connotation”. Further, there was consensus amongst the negotiators “that the term ‘exploiting’ meant in a manner detrimental to welfare”. For its part, the Oxford English Dictionary defines exploitation as “the action of turning to account for selfish purposes, using for one’s own profit”. Yet, it should be recognised that in international law, human exploitation is not defined, it is enumerated. The Palermo Protocol – the United Nations anti-trafficking instrument – does not define exploitation; it simply lays out a non-exhaustive list of types of human exploitation. For his part, Alan Wertheimer, in his 1996 philosophical study entitled Exploita­ tion, considers that an “exploitative transaction is one in which A takes unfair advantage of B. A engages in harmful exploitation when A gains by an action or transaction that is harmful to B where we define harm in relation to some appropriate baseline. While Wertheimer goes on to consider, in theoretical terms, what an appropriate baseline might be; for our purposes that baseline is straight forward. The baseline is the legal standard. Thus, the various types of human exploitation, as set out in Palermo Protocol, have been deemed in law to be cases wherein harm is created. Over time, society’s notion of exploitation has changed and the law has followed but also, in certain instances, the law has lead. So, in the

introduction3 Nine­teenth and early Twentieth Century, in certain parts of the world, slavery was outlawed, but in other geopgraphical areas, it would not have been deemed exploitive in law; in other parts of the world indentured labour likewise would have been legal, thus not deemed exploitive. What would have been deemed free labour one-hundred years ago or even fiftyyears ago, is seen now as having been exploitive. The standard by which we determine exploitation today is through law. For those who would wish to challenge the legitimacy of law as setting the baseline, they are welcome. Though, they will find no purchase for their arguments in this study. For my part, I have been struck, in speaking to practitioners, by their common refrain: ‘what does exploitation mean?’. My answer is simply this: the law tells us what exploitation is. In the first instance, the types of exploitation set out in the Palermo Protocol have attached – in the main – legal instruments which define these various types of exploitation. Thus ‘slavery’, s defined by the 1926 Slavery Convention, is exploitation; ‘forced or compulsory labour’ as noted in the Palermo Protocol, as defined in the 1930 Forced Labour Convention, is exploitation; the various servitudes or ‘practices similar to slavery’, enumerated in the 1956 Supple­ mentary Convention, are further examples of exploitation. The Palermo Protocol indicates that these enumerated types of human exploitation are not exhaustive of what is to be deemed exploitation. Again, we turn to the law as providing us with the appropriate baseline to establish what exploitation is. The legal standard is the pivot. In most cases, the unfair advantage we speak of is in economic terms; more specifically, with regard to one’s labour. Thus, exploitation will transpire when one, in the main, takes unfair advantage of another person’s labour to the labourer’s detriment. The standard by which this  is  mea­ sured is the International Labour Standards as set by the International Labour Organisation. Consider the case of wages. While we might consider the staggering discrepancy in minimum wages amongst States, such as that of Denmark compared to Sierra Leone which is in the magnitude of nearly two-hundred times greater; it cannot be said that providing the minimum wage in Sierra Leone is to be deemed, in law, to be exploitive. The International Labour Standards in this case is set out in ILO Conven­ tion 131, Minimum Wage Fixing Convention which does not prescribe a minimum wage; instead it simply requires a State Party to establish a minimum wage and to create a regime of enforcement. Where exploitation will take place is in situations where employers provide less than minimum wage, thus contravening the domestic law put in place by reference to the International Labour Standards manifest in ILO Convention 131. From this

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example we can then generalise: At minimum, exploitation will take place where there is a failure to respect International Labour Standards, thus taking unfair advantage of another. The establishment of the legal baseline is a societal recognition that to fall below that line caused harm which is deemed unacceptable. Thus, exploitation should be understood as a continuum where, at minimum, it is manifest in violations of International Labour Standards, but then grows in intensity, both in the unfair advantage gained and the proportional harm caused, to become a servitude; or even more intense to manifest itself as slavery. Let us now turn to interpreting the various types of human exploitation, starting with slavery. At the onset, it might be emphasised that there has been very little well-informed legal scholarship which has engaged with the issue of slavery. While I have considered the scholarship in the area of slavery and lesser types of exploitation and commented – often times critically – on it in book reviews and previous publications, very little of that scholarship is engaged with in this study. Slavery is defined in the 1926 Slavery Convention as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. That definition, in substance, is accepted as the contemporary definition, having been considered in negotiations for both the 1956 Supplementary Convention and the 1998 Statute of the International Criminal Court and found to be satisfactory as being an accurate reflection of the term. As the 2008 Tang case before the High Court of Australia makes clear, the definition is an applicable contemporary standard applying in situations of both de jure slavery, but more importantly in cases of de facto slavery. Thus, one does not legally have to own a person as in the day of chattel slavery to be deemed to have enslaved a person. Instead, the simple ability to control a person so as to be able to treat them as a slave will fall foul of the standard of the 1926 Slavery Convention. Conceptually, perhaps the best way to understand the applicability of de facto slavery is to consider such a manifestation with regard to illegal drugs. One cannot legally ‘own’ a kilo of heroin in most jurisdictions; thus a dispute as to its ownership cannot be vindicated in law. To bring such a dispute before a judge would be foolhardy, as the judge would not look to determine who owns the drugs as de jure it is not possible. Instead, the judge will look to de facto ownership: which of the two claimants exercises the power of ownership over the kilo – more often than not, that of possession – and decide and sentence accordingly. While providing the most pertinent example in seeking to understand how a person can be

introduction5 held to enslave another in a contemporary situation where ownership of another person is not possible, the example of the drug dealers is also revealing as it ultimately turns, for the judge, on possession. In seeking to make a legal determination as to slavery – again, in line with the 1926 definition, that ‘slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ – one must look for possession, as – in law – it is the hallmark of slavery. Ownership implies a background relationship of control. Where such an instance – or power – of ownership is present with regard to a thing, it is called possession. Thus, the ability to physically control or to control access to a thing, in such a manner that you have a superior claim over it as against anybody else will mean that you possess it. In a likemanner, where a person controls another such as they would control a thing they own, this will be deemed, in law, slavery. This control tantamount to possession would be manifest in a significant diminution of autonomy, depriving the person enslaved of their liberty to make fundamental decisions with regard to their very life. Instead, through controlling a person like one would a thing possessed, the slave loses their agency. No longer is the person allowed to make decisions for him or herself, instead they are controlled to such an extent – the reverse of the coin being that they have lost functional autonomy to such an extent – that their exploitation can be complete: they can be bought or sold; be used, managed or even destroyed, all to the benefit or gain of another person. This understanding of slavery, which is considered in depth in Chapter 3, allows us to draw effective legal parameters around the concept as set out in its legal definition. In other words, it allows us, in considering a specific situation, to be able to say either this is, or is not, in law, slavery. This reading of slavery is appropriate not only in general international law and international human rights law, but also, as considered in Chapters Six and Seven, in international criminal law. This is so, as the definition of ‘enslavement’ in international criminal law has now settled on the firm foundation, wherein it is defined in substance in the same terms as slavery. Having to deal with a rather muddled reading of ‘slave labour’ at Nurem­ berg, the International Law Commission sought to give voice to a wide reading of the term enslavement, one that included forced labour. How­ ever, this reading has now been discarded in favour of one which narrows the application to only instance where ‘the powers attaching to the rights of ownership are exercised’. Having demonstrated in Chapter Six, how this coming together of slavery and enslavement transpired, Chapter Seven is turned over to examining a situation where, although the practice was

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not deemed to be slavery; in law it should have been recognised as such. The situation in question is that of so-called ‘forced marriages’ during the Civil War in Sierra Leone, where women were abducted, raped, and made to porter, cook, wash clothing and carry out other domestic duties by their rebel, military, captors. While the Special Court for Sierra Leone deem such acts ‘forced marriage’, it is clear that the perpetrators controlled these women in such a manner as to constitute possession. As such, their ability to use these women or to destroy them at will, speaks to a case of enslavement. Turning now to interpret lesser forms of human exploitation, with one proviso: that no matter what one might term such forms of human exploitation – be it debt bondage or forced marriage – it should recognised that if such exploitation meets the threshold of slavery then, in law, it is slavery. In the main, these include as either forced labour or conventional servitudes set out in the 1956 Supplementary Convention: debt bondage, serfdom, servile marriages, or child exploitation. With regard to forced labour, ILO Convention 29 – the 1930 Convention concerning Forced Labour – defines ‘forced or compulsory labour’ as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. There is more to that definition of forced or compulsory labour, as there are exceptions to the definition which create a legal fiction exempting work such as military conscription, penal labour, and assistance in times of nature disaster, from being deemed forced or compulsory labour. In the popular imagination, forced labour is something awful, conjuring up imagines of working at gunpoint or in sweatshops under lock and key. However, the definition of forced labour allows for a long arc of exploitive situations to fall under its heading. At one end of the spectrum, consider once more minimum wage. In a situation where individuals are earning minimum wage; if their employer unilaterally declares that they will henceforth be required to work at less than minimum wage (re: thus exacting of labour for which the employees have not offered themselves voluntarily); and those that are unwilling to submit, will be terminated (re: menace of a penalty). This would be deemed a case – granted a minor instance – of forced labour. At the other end of the spectrum, the 1926 Slavery Convention recognises that forced labour can develop “into conditions analogous to slavery”. Here then would be a situation where an individual is both in a situation of forced labour, meeting the requirements of the definition of forced labour (re: extraction of labour under menace of a penalty and without consent); and in a situation of slavery where the

introduction7 exploitation goes beyond control of labour to control tantamount to possession of the person. Between these two extremes of this long arc of exploitation which can transpire under the definition of forced labour, is an area where administrative sanctions give way to criminal liability and human rights violations. With regard to the servitudes found within the 1956 Supplementary Convention – the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery – a word should be said about it nomenclature. Article 1 of the 1956 Supplementary Convention defines four ‘institutions and practices similar to slavery’: debt bondage, serfdom, servile marriages, and child trafficking. The use of this phrase ‘institutions and practices similar to slavery’ or its often used shorter form ‘practices similar to slavery’ should be discouraged. Instead, for the reasons provided in Chapter Six, we should consider these four practices as servitudes – conventional servitudes. In sum, the two main reasons why we should abandon use of the term ‘practices similar to slavery’ in favour of ‘servitudes’, is first, that throughout considerations of during the League of Nations era of lesser servitudes throughout to the second penultimate draft of the 1956 Supplementary Convention, debt bondage, serfdom, servile marriages, and child trafficking were considered servitudes. The reason why the negotiators changed the nomenclature from servitude to ‘institutions and practices similar to slavery’ relates not to normative considerations but to issues touching on obligations to be attached to these servitudes. As these elements of obligations have now disappeared over the horizon of history, the original justification for the shift in language no longer exists. Second, and of more contemporary relevance is that the language of ‘practices similar to slavery’ is often confused with a term of art ‘slavery-like practice’ which emerged in the mid-1960s within the United Nations and has been utilised as being synonymous with ‘contemporary forms of slavery’. Both the United Nations Working Group on Contemporary Forms of Slavery and its successor, the Special Rapporteur on Contemporary Forms of Slavery – as well as in the academic writings – have conflated the legal with the political, using the terms ‘practices similar to slavery’ and ‘slavery-like practice’ interchangeable or incorrectly. As a result, the language of ‘conventional servitudes’ will be used when discussing debt bondage, serfdom, servile marriages, and child trafficking as found in the 1956 Supplementary Convention thus providing clarity to the area. While I shall leave the details of what is meant by each of the conventional servitudes set out in the 1956 Supplementary Convention

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to Chapter Four, it might be noted here that like forced labour, the 1956 Supplementary Convention acknowledges that debt bondage, serfdom, servile marriages, and child trafficking can in theory be both a servitude and slavery as Article 1 reads, in part, that these servitudes are to be abolished “where they still exist and whether or not they are covered by the definition of slavery”. I say in theory; as in 1953 the United Nations Secretary-General indicated that he was against the drafting of a supplementary convention, as “in the main these institutions or practices are covered” by the 1926 Slavery Convention. This judgment has come to pass, as in legal terms, the provisions covering serfdom and servile marriage are defined in such a manner as meeting the threshold, ipso facto, of slavery. Where debt bondage and child trafficking are concerned, it is only here, and in situations where these do not meet the threshold of slavery that we can speak of manifestation of human servitudes in international law. For more than a decade I have worked through the evolution of the international legal regime established over the last two hundred years to abolition slavery and lesser servitudes. In the shadow of the neoabolitionist era, the need to get the law right has become acute. This treatise has demonstrated that the pivot of that regime continues to be slavery. It remains for courts now to fill in the content of what is and what is not slavery and lesser types of human exploitation. Yet there is enough in the international standards to establish a clear understanding and bring legal certainty to an area of the law which has been dogged for a long time by a lack of insight into its most fundamental precepts and principles. For much of the Twentieth Century, the law of human exploitation remained dormant. But no more, the emphasis in the Twenty-First Century on human trafficking and the criminalisation of enslavement before the Inter­national Criminal Court means that we can no longer dismiss slavery as an historical relic, but must acknowledge that it persists as part of the human condition. As such, in taking slavery seriously, we also make place for an acknowledgement that human exploitation is wrong, and that globally the law has a place in seeking to stop those who would, in opposition to Kant, treat people as means to their own end, rather than ends in themselves.

CHAPTER ONE

OF SLAVERY AND THE LAW OF NATIONS

As the dust settled over the ruins of the ancient capital of Akhenaten – some three hundred kilometres south of contemporary Cairo, in the town of Tel el-Amarna, Egypt – what was discovered in 1887 was the first known archive of diplomatic correspondence, dating from the mid-fourteenth century b.c.e. While it has been posited that slavery has existed since time immoral, the discovery of the ‘Amarna Letters’ established the extent to which slavery was engrained in the thinking of the ancient Near East, as proto-States and their international relations were modelled on the relationship of master and slave. The three-hundred and fifty Amarna Letters are a rich source of correspondence between the Egyptian court and other proto-States of Near East, including Babylonia, Hatti, and Assyria; and the vessels of Qadesh and Damascus. The tablets, set out in cuneiform writing, cover the reign of Amenophis III to the first year of the boy-king Tutankhamen. While there are general insights to be gleaned from the Amarna Letters into various areas which we would recognise today as elements of international law, the very notion of these proto-States and their relationship to each other was imbedded with the idea of slavery. As Raymond Westbrook notes: “The constitutional relationship between king and citizens relied on a metaphor drawn from the hierarchy within household: he was their master; they were his slave. […] The king was by no means the apex of his hierarchy. Above him stood the emperor, if he were a vassal king. He and his household, that is, the population of his country, were all slaves to the emperor”.1 It might be emphasised that slavery in the Armana Age – that is, nearly four millennia ago – was not limited to metaphor, as slaves were offered in tribute to help facilitate international relations. The Amarna Letters speak 1 Raymond Westbrook, “International Law in the Amarna Age” in Raymond Cohen and Raymond Westbrook (eds.) Amarna Diplomacy: The Beginning of International Relations, 2000, p. 29.

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of the gift of women to the Egyptian Pharaoh: “May the king, my lord, be informed that the war against me is severe […] moreover, the king, my lord, has sent orders to me and I am heeding them. I heed all the orders of the king, my lord. I herewith […] send on 10 women”. Likewise: “I have indeed listened to the words of the king, my lord, very carefully, and I herewith give 500 oxen and 20 girls”. Finally, the Pharaoh was not averse to set out his own requirements: “send extremely beautiful cupbearers in whom there is no defect, so the king, your lord will say to you ‘This is excellent’, in accordance with the order he sent to you”.2 At the outset of this study, it should be recognised that slavery has constituted the rule, not the exception in human history. For thousands of years, slavery not only persisted but was fundamental to most societies, including those of Greece and Rome upon which Western Civilisation built its edifice; through to States of the Western Hemisphere whose original infrastructures and future prosperity was for the most part built by slaves. Over the long arc of human history then, it has only been in the last two-hundred years that there has been an international attempt to end first the slave trade; then slavery; then lesser forms of human exploitation. While this study considers various forms of human exploitation that have been made illegal under international law, this Chapter examines the era when slavery was not only legal but its justification was based on a primitive international law: on jus gentium. For the ‘fathers of international law’ then, from Vitoria through Grotius and into the nineteenth century, it was agreed: international law admits slavery. These Western ‘canonists’ of international law, it might be emphasised drew from the same source, which flowed first and foremost from Roman law, though they often turned to Aristotle to justify slavery. At the basis of the various considerations of slavery was a mutable understanding of natural law. For those classic writers of international law – and here I am thinking of those who have been given special place in the English language ‘canon’ as a result of their work having been translated to appear in the Carnegie Foundation’s Classics in International Law Series – we see an evolution over time of a move away from a religious-based natural law concept founded on the doctrine of Thomas Aquinas, through a secularisation of the concept, and ultimately a clear move away from natural law towards a more positivist conception of international law. This transition, 2 “Women to the King”; “500 Oxen and 20 Girls”; and “From the Pharaoh to the Vassal”, EA 64, 301, and 369, William Moran, The Amarna Letters, 1992, p. 135, 342, and 366. Parenthesis omitted.



of slavery and the law of nations11

it would seem, resulted in scholars seeking to give grounding to international law in situations where the interaction among States was limited and information regarding State action difficult to come by. Thus, over time, the theoretical basis, grounded in natural law, gave way to an ability of writers to demonstrate, through positive acts of States, the content of international law. This Chapter provides a tour d’horizon of the writings of international law during the epochs when slavery was legal so as to demonstrate the justifications which were at play. Thus, through the ages we travel, from the ancient Near East, through Greek and Roman antiquity where, in the latter case consideration is given to the Roman Law of slavery. Through the Middle Ages, the long millennium between Antiquity and the Renais­ sance, focus is given to the Islamic Law of Nations, where we witness clear precepts in Sharia as between Islam and its ‘other’: the enslavement of heathen prisoners of war. From here, consideration is given to enslavement during the European Age of Discovery and the development of the pre-cursor of contemporary international law: the public law of Europe qua Christendom. Through the various writings found in the Classics in International Law Series we witness a near silence on the African slave trade. Where international law is concerned, issues revolving around slavery were in the main played out during the era of the ‘Spanish School of International Law’, which sought to come to grips with slavery in the context the native populations of the Americas caught up in the pacification of Spanish Empire. After Francisco de Vitoria, the ‘classic’ international jurists were in the main silent on the slave trade, focusing instead on slavery as it touched on prisoners of war within Christendom. Though, as the Atlantic Slave Trade and European colonialism grew in importance, so too did the willingness of jurists to make place for the possibility of slavery beyond those ‘civilised nations’ constituted, in the main, in Europe. Where slavery is concerned, the evolution of the international law through the ‘canon’ does not reflect well, by contemporary standards, on its authors. One would be hard pressed reading through these international law texts to get a sense that millions of Africans were taken by force and shipped to the Americas as slaves. This silence by the ‘fathers of international law’ is deafening. What follows then in this Chapter is a consideration of the various justifications which allowed for slavery in international law. In focusing on these justifications, the Chapter excludes the various means by which slavery was regulated at the domestic level. Excluded then are the laws

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related to manumission, to slaves as witnesses, to the manner in which States sought to arbitrate between slave owners with regard to their chattel and the manner in which States sought to control their slave populations in the face of rebellion and resistance. What emerges throughout these considerations of the historical interplay between international law and slavery is an incomplete picture. The various authors that make up the Classics in International Law Series provide but a snap-shot; there is no true sense of evolution in international law where slavery is concerned. Instead, the texts speak to the specific interests of the authors, whether these are the meta-narrative of Grotius or the practical military manual of Ayala. In so doing, various justifications are marshalled over time to either expand or contract the space opened for slavery as constituting part of the contemporaneous international law. From Ancient to Modern For Aristotle (384–322 b.c.e.) “on the grounds of reason and fact” slavery is natural: “For, that some should rule and others be ruled is a thing not only necessary, but expedient, from the hour of their birth, some are marked out for subjection, others for rule”.3 As Moses Finley relates, Aristotle, in setting out his understanding of slavery as part of natural law, “produced not only the first but also the last formal, systematic analysis of the subject in antiquity”.4 Slavery for Aristotle must be understood in the context of including slavery within his philosophical ideal State. In the Politics, Aristotle does not seek to justify slavery on the basis of social necessity but on “the benefits which it confers on master and slave”. For those who are slaves by nature, it is because they lack that part of their soul which makes “moral virtue complete”.5 Aristotle considers that the slave gains this part of his soul by his attachment to a virtuous master. In the considerations of slavery put forward by Aristotle in Greek Antiquity, we witness the fundamental understanding of the legal status of slavery which would persist among jurists for more than two-thousand

3 Aristotle, Politics, (Benjamin Jowett, trans.), 1885, p. 6. Consider also Robert Schlaifer, “Greek Theories of Slavery from Homer to Aristotle”, Harvard Studies in Classical Philology, Volume 47, 1936, pp. 165–204. 4 Moses Finley, Ancient Slavery and Modern Ideology, 1980 (1998 edition, Shaw, ed.) p. 188. 5 W.L. Newman, The Politics of Aristotle, Volume 1: Introduction to the Politics, 1887, pp. 144–149.



of slavery and the law of nations13

years. Thus, from the jus gentium of the third century b.c.e. to the law of nations of the nineteenth century the legality of slavery was considered within a dichotomy of the Aristotelian understanding of slavery as natural and those who considered it against nature, but allowed by the laws of war. Aristotle himself recognised this dichotomy, saying that beyond slaves by nature, slavery also transpires by ‘convention’: “the convention by which whatever is taken in war is suppose to belong to the victors”. However, Aristotle disagrees with those who “affirm that the rule of a master over slaves is contrary to nature, and that the distinction between slave and freeman exists by convention only, and not by nature; and being an interference with nature is therefore unjust”.6 “But this right”, Aristotle notes, “many jurists impeach […] they detest the notion that, because one man has the power of doing violence and is superior in brute strength, another shall be his slave and subject”. As W.L. Newman writes, Aristotle concedes this point, but ultimately is unwilling to recognise conventional slavery as ‘just slavery’.7 Instead, ‘just-slavery’ – those that are slaves by nature – will live a harmonious existence with their virtuous masters in the utopia envisioned by the Politics as: “where the relation of master and slave between them is natural they are friends and have a common interest, but where it rests merely on convention and force the reverse is true”.8 Moving on from Aristotle, we witness in Roman law a sophisticated legal system which matured during the era of Roman Republic (508– 44 b.c.e.) and through the Roman Empire (44 b.c.e.–476 c.e.). The Roman law of persons is based on a fundamental distinction: people as either free or slave. Following the path of slavery, Roman law sets out an elaborate regime which treats a slave as both person and thing. While slavery is deemed to be against nature, it is accepted as being man-made, as being a type of universal law, common to all: as jus gentium. Slavery as jus gentium is against nature, resulting from, and a by-product of, that most unnatural of events: war. While jus gentium is often interpreted as being synony­ mous with international law, this is a contemporary reading of the term. Jus gentium should not be misconstrued, as it was conceived in Roman law times as being based on a natural law that transcended both the borders of Rome and, temporally was common to all, from Greek antiquity onwards. In Roman times it was indeed law, one not applicable in State intercourse,

6 Aristotle n. 3, p. 4. 7 Newman, n. 5, p. 148. 8 Aristotle, n. 3, pp. 7–8.

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but as between Romans and non-Romans (re: foreigners).9 It was only in 1641 that Richard Zouche, the holder of the Regius Chair in Civil Law at the University of Oxford, made the distinction between jus gentium and an area meant to govern the emerging Westphalian order of States as the law between peoples: jus inter gentes.10 As for slavery, Justinian’s Institutes provides the established definition of slavery in Roman law: “Servitus est constitutio iuris gentium qua quis domino alieno contra naturam subicitur; that is: Slavery is an institution of jus gentium by which, contrary to nature, a person is subjected to the dominion of another”. Thus, as William Buckland relates, slavery is a manifestation of dominion over another, whereby dominium goes beyond ownership, as it is “the ultimate right, that which has no right behind it”.11 For Orlando Patterson, the very doctrine of dominium was established in Roman law to address slavery. By asserting dominion, one was going beyond the requirement of ownership vis-à-vis a thing, “dominium was absolute power”: And this absolute power involved not simply the capacity to derive the full economic value of a thing, to use (usus) and enjoy its fruits (fructus), as well as ‘to use it up’ (ab-usus), to alienate it, but perhaps most significantly, as the   9 See both Paul du Plessis, Brokowski’s Textbook on Roman Law, 2010, p. 88; and Paul Frédéric Girard, Manuel Élémentaire de Droit Romain, 1929, p. 102. Consider Buckland’s understanding of jus gentium: We find, of course, many later texts in which ius gentium spoke of as a branch of existing law […]. But we also find the more speculative aspect of it considered. Commonly the later jurists treating ius gentium as universal, nevertheless distinguish between it and ius naturale, on the grounds that slavery is iuris gentium, but contra naturam. […] The general conclusion is that ius gentium, in the only sense in which it is of value in legal discussion, means certain rules which, whatever their origins, were a part of the law and had been applied in dealing with peregrines, and that the more speculative conception of it as universal was borrowed from the philosophers, and being for legal purposes no more than ornament to discussion, was not very exactly formulated. W.W. Buckland, A Text-Book of Roman Law; From Augustus to Justinian, 1963, p. 54. 10 See Thomas Holland, “Introduction”, Richard Zouche, Juris et Judicii sive, Juris Inter Gentes, et Questionum de Eodem Explicatio, 1650, Volume 1, 1911, p. xiii; where Holland provides a genealogy from jus gentium to international law, wherein he concludes: “But it was Jeremy Bentham who, in his Principles of Morals and Legislation, 1789, secured the general adoption of Zouche’s suggestion [i.e.: jus inter gentes], by coining the term ‘International Law’”, as “calculated to express, in a more significant way, the branch of law which goes commonly under the name of the Law of Nations”. Id. 11 Buckland, n. 9, p. 188. Buckland explains in his The Roman Law of Slavery, 1908, p. 3; that “slaves as such are subject to dominium does not imply that every slave is always owned [Buckland provides four such examples at p. 2]. Chattels are the subject of ownership; it is immaterial that a slave or other chattel is at the moment a res nullius”.



of slavery and the law of nations15 Danish legal historian C.W. Westrup notes, it has a psychological meaning ‘of inner power over a thing beyond mere control. If it is difficult to explain why the Romans would want to invent the idea of a relation between a person and a thing (an almost metaphysical notion, quite at variance with the Roman way of thinking in other areas), it becomes impossible to comprehend why they should want inner psychic power over it unless we understand that, for most purposes, the ‘thing’ on their mind was a slave.12

During the era of the Republic, there were no legal limits on the power of the master over his slave. Dominion was just that. By the time of Justinian and the Empire, absolute ownership had been limited: “restrictions on masters gradually made their way into the law even though […] the right to kill a slave remained”. As Alan Watson relates, the reasons behind the limitations are telling, as “not a word is said about the well-being of the slave”.13 Instead, as Justinian’s Institutes makes plain: “it is in the interest of the masters that help against savagery or hunger or intolerable injury should not be denied to those who rightly entreat for it”.14 One might be curious to understand the benefit of masters in the senatus consultum Silanianum, wherein upon the murder of the master, all slaves under the same roof are subject to torture before being put to death. But alas, as Watson relates, there is no better example “to show the power of pure legal reasoning, the quasi-autonomous status of law, the basic inhumanity of a slave state occasionally illuminated by human sympathy, and a brilliantly elegant legal solution to a social problem”.15 Quoting Ulpian, the Digest explains: “otherwise no home can be safe, unless slaves at the risk of their own lives are compelled to guard their masters as much from members of the household as from outsiders”. Watson goes on to suggests that the definition of slavery – ‘an institution of jus gentium by which, contrary to nature, a person is subjected to the dominion of another’ – “betrays an uneasiness over the morality of slavery”, as it is the only occasion within Roman law where there is an acknowledged provision of the jus gentium which is in conflict with the jus naturale. Watson asserts that such unease explains the additional text in Florentius and in Justinian’s Institutes which, despite its dubious etymology, “suggests that slavery is being morally justified”. That provision reads: “Slaves (servi) are so called because commanders order captives to be sold and so spare (servare) rather than kill them; they are also called mancipia 12 Orlando Patterson, Slavery and Social Death, 1982, p. 31. Emphasis in the original. 13 Alan Watson, Roman Slave Law, 1987, p. 120. 14 Id., p. 120. 15 Id., p. 134.

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because they are taken physically (man capi) from the enemy”. The moral justification for enslavement then is that slavery is a benefit to the enslaved, a substitute for death.16 Paul Frédéric Girard, examines this justification which, it might be added, echoes throughout our consideration of slavery as set out by international jurists throughout the period when slavery was legal. Girard writing in the early Twentieth Century states: The victor, having the right to kill the vanquished has a fortiori the right to make him his property. This sophism need not be refuted. However, as it happens so frequently, a legal rule must be formulated to match an historical reality. There was an era where kills transpired instead of servitude, as there did not yet exist the idea or the means to gain profit from property in another human being. Later, probably at the point where men established a pastoral, but above all, an agricultural regime which required the tending of flocks and the cultivation of lands, was there the thought to put to work captives instead of killing them so as to gain profit as between maintaining them alive and the benefit they brought as a result of their labour.17

Thus, in Roman law a slave was above all else: a thing or res. A thing owned (thus chattel) to be regulated by the laws related, on the main, to personal property. The process of enslavement in the first instance was through capture in war. Such capture could only take place where official hostilities transpired and the applicable law held in the same manner for those captured by Rome (for such slaves were in the first instance property of the State, later to be sold privately) as Romans captured by the enemy. With regard to Romans captured, they were deemed to have died from the moment of capture, having “suffered capitis deminutio maxima – the ‘greatest change of status’ – involving the loss of freedom, citizenship and family”. As Paul du Plessis goes on to explains, this reflected both the reality of the situations: few slaves ever returned to Rome; and a willingness to ensure that Roman soldiers fought to the death rather than be captured.18 Where individuals were captured, once returned to Rome, their status was covered by the legal doctrine of postliminium whereby “one who returned might be more or less restored to his old position”. In essence, a Roman captured would be returned to his formers status benefiting from the same rights as before, if he had been captured with honour, returned at the first possible opportunity and, if he had been ransomed, had paid that debt.19 16 Id., p. 8. 17 Paul Frédéric Girard, Manuel Élémentaire de Droit Romain, 1929, pp. 102–103. 18 Plessis, n. 9, p. 91. 19 Buckland, n. 9, p. 68. That said, Watson notes that as a branch of law, postliminium “was highly complex, sophisticated, and developed”, wherein “a prisoner’s right during his



of slavery and the law of nations17

Over time, capture as the main source of slaves within the Roman Empire would be replaced by another means jus gentium, that of children born to female slaves.20 This was in contradistinction to Roman marriages where the child followed the father’s line of descent. Other means of enslavement in Roman law, though not by jus gentium but by jure civili, are worth noting, as they too would be relied upon by international jurists to give added weight to their understanding of international law as allowing for slavery. Two such instances were, first enslavement resulting from a sentence for a crime committed and, second, as a result of the selling of a child that had been necessitated by poverty.21 Moving on from the Roman era, while it must be acknowledged that the basic tenets of international law, as we know them, are grounded in the European experience emanating from the era inaugurated by the voyages of Columbus and de Gama, and rooted in the 1648 Peace of Westphalia, it should also be recognised that for much of the millennium between the end of the Roman Empire and the Age of Discovery (roughly 500 to 1500 c.e) there existed a self-encompassed universal system of international law – the Islamic Law of Nations or Siyar – for which slavery was as fundamental as it had been in Greek and Roman times. For nearly one-thousand years from the emergence of the Prophet Muhammad (570–632 c.e.) onwards, the Islamic conquest made of Islam “the greatest and most influential of the world’s monotheistic religions”.22 During the millennia when Islam dominated the Eurasian landscape, its legal understanding of slavery did not deviate significantly from that which came before or would follow. At the height of the Islamic conquest, in the early Eighth Century, a number of jurists developed what would be termed today international law, as a separate field of legal inquiry. Thus, some eight hundred years before Grotius was deemed to have brought together the various tenets of European public law into one text, an Islamic jurist, Muhammad ibn al-Hasan al-Shaybani, had done the same for the Islamic Law of Nations.23 While Shaybani’s magnum opus,

captivity and on his return varied according to the subject [matter (i.e.: marriage, inheritance, etc.)]”. Watson, n. 13, p. 21. 20 Watson, id., p. 8. 21 See Buckland, n. 9, pp. 69–71. 22 Clive Ponting, World History: A New Perspective, 2000, p. 301. 23 See Jean Allain, “Acculturation through the Middle Ages: The Islamic Law of Nations and its Place in the History of International Law”, in Alexander Orakhelashvili (ed.), Research Handbook on Theory and History of International Law, Edward Elgar Publishing, 2011, p. 397.

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the Kitab al-Siyar al-Kabir has not survived, another work, his Kitab as-Asl was translated into English in 1966 by Majid Khadduri.24 The Siyar contemplated a Pax Islamica, a perpetual peace achieved once the on-going Arab conquest had brought all of humanity under the banner of Islam. Thus, the Siyar was premised on a fundamental dichotomy between those within the territorial sphere of Islam and those in the Abode of War, which had yet to be incorporated. As such, the Siyar deals with the conduct of its war of conquest and with issues of foreigners incorporated into the realm of Islam. Much of Shaybani’s Kitab al-Siyar al-Kabir is taken up with issues related to slavery. Where general Islamic Law is concerned, Sharia recognises but two legal means of enslavement, the capture in war of non-Muslims and slavery by birth.25 Though it might be emphasised that during the millennia of conquest and expansion slavery by capture was of much greater importance than that of slavery by birth. Slavery by birth was narrow in scope, as it was limited to cases of children born to slave parents while excluding children born to a female slave but fathered by a free man. For prisoners of war, while enslavement was to end with hostilities through released or ransom, in practical terms this rarely happened. This was a Koranic imperative which reads: When you meet the unbelievers, smite their necks; then, when you have made wide slaughter among them, tie fast the bonds. Then set them free either by grace or ransom, till the war lays down its loads.

As William Gervase Clarence-Smith writes, “jurists found reasons to nullify God’s seemingly clear instruction to free prisoners after war. The catch-all concept of ‘public interest’, drawn from repeated commands in the Quran to promote good and forbid evil, meant that men should not be released to fight again”. Yet, as Bernard Freamon writes, the pretext of bringing the humanising influences of Islam to new territories was subverted by “an ever-widening search by Arab slavers for non-believing people”. Such slave-raiding was, as Freamon notes “an enterprise that was against the letter, as well as the spirit of Sharia”.26 24 See Majid Khadduri, The Islamic Law of Nations Shaybani’s Siyar, 1966. Note that Khadduri translates from a manuscript dated 1240CE/638AH. 25 For the legal position of slaves in Islamic Law, see Joseph Schacht, An Introduction to Islamic Law, 1982, pp. 127–130. 26 William Gervase Clarence-Smith, Islam and the Abolition of Slavery, 2006, p. 25. See also Bernard Freamon, “Slavery, Freedom and the Doctrine of Consensus in Islamic Jurisprudence”, Harvard Human Rights Journal, Volume 11, 1998, pp. 10–64.



of slavery and the law of nations19

Returning to the Siyar, Shaybani investigates the practicalities of slaves as part of the spoils of war including whether an enslaved couple remain husband and wife; and considers a number of issues with regard to the movement from the Abode of War to Dar al-Islam (the Abode of Peace) including the status of a slave purchased by a Muslim in the territory of war and issues of emancipation and manumission.27 As Majid Khadduri notes in emphasising the departure of Islam from Roman Law in regard to slavery: once a slave entered to Dar al-Islam, he “was not condemned to live permanently in servitude; he had the chance of obtaining liberty in his lifetime; in an age when the rule was more rigid outside the World of Islam”.28 Turning now to consider the Western ‘canon’ of international law, which gains prominence with the receding of Islam and the rise of European colonialism, best exemplified by the year 1492 which saw the fall of Granada and the first transatlantic voyage of Columbus. As to the text of that Western canon, in the early Twentieth Century, the Carnegie Institute, under the general editorship of James Brown Scott, published in twentytwo volumes a series of Classics of International Law, which not only reproduced the original texts, but also translated the foreign language texts into English. Not surprisingly, many of these authors drew from the same source, depending in large part on writings from Greco-Roman times and the Christian Church. As Robin Blackburn acknowledges, in general terms: the Renaissance did little to weaken ideas supportive of the legitimacy of slavery in some universal, non-ethnocentric sense. The rediscovery of classical authorities did nothing to undermine belief in the lawfulness of slavery. Indeed, by diffusing a greater awareness of the cultural achievements of Antiquity and contributing to a sense of Christendom was its legitimate heir, the Renaissance could lead to a sense of shared cultural superiority which dovetailed with the classical Aristotelian doctrine that barbarians were natural slaves.29

Turning now to a consideration of the various texts of the Classics of International Law series, chronologically, the first is in fact a medieval text, the 1390 edition of On War, Reprisals and Duels, by the Professor of Canon Law at the University of Bologna, Giovanni da Legnano (1320–1383), which T.E. Holland considered as “the earliest attempt to deal, as a whole, 27 Majid Khadduri, n. 24, pp. 116–188, 189, and 124. 28 Majid Khadduri, War and Peace in the Law of Islam, 2008, p. 132. 29 Robin Blackburn, The Making of New World Slavery: From the Baroque to the Modern, 1492–1800, 1997, p. 62.

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with the group of rights and duties which arise out of a state of war”.30 What is revealed in Legnano’s text with regard to slavery is the prominence of thought given to the relationship between Christians and Muslims. In answering the question whether “one who makes a capture in war become owner of the person […] captured?”, Legnano answers: in “a public war, made by the authority of a prince […] the persons captured become slaves”. He goes on to say that by jus gentium, “which is derived from ancient customs, the rules of captivity […] apply”, but this is only so against ‘enemy’ States, such as those of Muslim peoples. Legnano makes plain that “according to the customs of modern times, the practices observed among Christians from an early age [… is that] persons are not sold, and do not become slaves”.31 Thus, in the intercourse of war between Islam and Christendom, prisoners were to be enslaved, while for both Muslims and Christians, the enslavement of prisoners was precluded for coreligionists. International Law during the Age of Discovery Beyond On War, Reprisals and Duels, the Western canon of international law is very much a product of the era of European expansion through Empire and colonialism. As Antony Anghie argues, international law as we have come to understand it, did not precede the discovery of the New World, instead “international law was created out to the unique issues generated by the encounter between the Spanish and the Indians”.32 With this in mind, we turn to the writings of Francisco de Vitoria and consider slavery in the context of Spanish expansion into the New World. As Ernest Nys makes plain in his introduction to Vitoria’s 1557 De Indis et de Ivre Belli Reflectiones, slavery was not unknown, as it existed in Spain at the time of the discovery of the New World. Further, the sugar plantations which were to dominate the New World’s slave economy predate Columbus’ voyages of discovery. Such slave-based sugar plantations had been incubated by former Crusaders using Arab labour first in the Levant

30 Giovanni da Legnano, De Bello, De Represaliis et De Duello, 1390, 1927, p. ix. 31 Id., 1927, pp. 269–270. It might be added here that James Leslie Brierly provided the translation from Latin to English of the Legnano and Zouche texts. Brierly was author of The Law of Nations: An Introduction to the International Law of Peace, first published in 1928 and was in its sixth edition in 1963 (edited by Sir Humphrey Waldock) and was still in print as late as 1980. 32 Antony Anghie, Imperialism, Sovereignty and the Making of International Law, 2005, p. 15.



of slavery and the law of nations21

and then west through a number of Mediterranean islands.33 At the dawn of the Age of Discovery, such plantations had broken free of the Mare Interium and found their way into the Atlantic Ocean, onto the islands of the Azores, the Canaries, and Cape Verde. In contrast to places like Cyprus and Sicily, on these Atlantic islands sub-Saharan Africans were introduced as slave labour alongside the indigenous population.34 The use of African slave labour was a product of advances in maritime technology which spawned the Age of Discovery, allowing Iberian States to, first, under Prince ‘Henry the Navigator’ of Portugal (1394–1460), incrementally make their way, not only south, down the African Coast; but ultimately to the New World (Christopher Columbus, 1492), around the Cape of Good Hope to India (Vasco de Gama, 1498), and finally to circumnavigate the globe (Ferdinand Magellan, 1522). With regard to the New World Spanish Empire, the legal basis upon which this European expansion transpired during the Sixteenth Century was a result of religious sanction which divided the globe – beyond Europe – between Portugal and Spain. The Inter caetera of 1493 issued by Pope Alexander VI, was part of the Papal bulls of donation, granting monopolies over all lands three hundred miles east (to Portugal) and west (to Spain) of the Azores and Cape Verde Islands; there being a line of demarcation drawn vertically from the Arctic to the Antarctic poles.35 The Inter caetera led to the signing of the Treaty of Tordesillas of 1494 between Portugal and Spain, which thus ended a “certain controversy […] as to what lands, of all those discovered in the ocean sea up to the present day”36 belong to which State. The Treaty, based as it was on the Bull, effectively divided the yet to be discovered world between the Iberian States; it also moved the line approximately seven hundred miles westward, thus granting Portugal its toehold in the South America, which, thanks to the watershed of the Amazon River, would later became Brazil, the largest State on the Continent. While African slave labour would prove productive for Portugal, Spain was precluded from access to the African slave market by the division established by the bulls of donation. As a result, for much of the Sixteenth Century, Spain utilised the native population of the Americas as its source of labour. The apogee of Spanish use of

33 Blackburn, n. 29, p. 77. 34 Id., pp. 108–112. 35 See European Treaties bearing on the History of the United States and its Dependencies to 1648, Frances Davenport (ed.), 1917, p. 77. 36 Id., p. 95.

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this indigenous slave labour transpired during the adult life of Francisco de Vitoria. During much of the Sixteenth Century the issue of the enslavement of the native population was central to the Spanish Will to Empire. Questions as to whether the Crown or the conquistadors should reap the benefits of conquest and whether the New World possessions should be administered by the Castilian Crown or left to feudal overlords, turned on a more fundamental issue; that of “the right to exploit native labour”.37 The issue of the treatment of the indigenous population was acute from the time of the second voyage of Christopher Columbus who, in 1494, returned with slaves from Hispaniola as tribute for the Sovereign.38 During the time of Vitoria, the Spanish conquest centred on the Caribbean, with the outcome the subjugation of the local inhabitants who were forced to work the land or to mine. The feudal encomiendas system was introduced on the islands of Spanish America as the Crown sought to mitigate what might be termed ‘reverse decimation’ of the native population; that is: not the death of one in ten, but in actuality, nine in ten. As Blackburn relates, within: a few decades the microbes that had been incubated for millennia by the dense populations of Europe, Asia and Africa were unleashed on the isolated American peoples; smallpox, measles and other ailments had a devastating impact on those with no resistance to them. The ravages of disease must have been gravely aggravated by the destruction of Indian communities, the disruption of established patterns of agriculture and the conscription of Indian labour for deadly toil in the gold workings, mercury and silver mines and sugar and cacao plantations.39

That toil, which transpired via the encomiendas, was based on a grant by the Crown of a set number of ‘natives’ who were required to labour or provide tribute in exchange for the coloniser’s protection, and instruction in the Spanish language and in the Catholic Faith. The encomiendas

37 Lesley Byrd Simpson, The Encomienda in New Spain: The Beginning of Spanish Mexico, 1966, p. 2. 38 Juan Friede, “Las Casas and Indigenism in the Sixteenth Century”, Juan Friede and Benjamin Keen (eds.), Barolomé de Las Casas in History: Towards and Understanding of the Man and His Work, 1971, p. 148. 39 Blackburn, n. 29, p. 132. Surveying the literature, Blackburn speaks of an overall preColumbian population of the New World 50 million reduced to 8 million by 1600. Id. David Brion Davis is more conservative stating “While specialists differ with respect to numbers, which are necessarily somewhat speculative, we are clearly considering the greatest know population loss in human history – that is, mortality as a percentage of population”. David Brion Davis, Inhuman Bondage: The Rise and Fall of Slavery in the New World, 2006, p. 98.



of slavery and the law of nations23

were instituted by the 1512 Laws of Burgos, which determined that “the Indians were liable to personal services as vassals of the king”.40 “So great”, G.L. Huxley relates, with regard to encomiendas, “were the colonists’ demands for labour that the system came to resemble slavery in practice, and in the islands, as the ravages of disease and war caused the native population to diminish, so the burden of service and tribute fell all the more heavily on the survivors, with the consequence that many, perhaps most of the Taino, Lucayo and other Indians of the islands had been wiped out by 1520”.41 With the native population of the Antilles dying off at a rate never before – or since – seen in human history, the conquistadors looked to replenish their labour supplies by turning to the slave trade. In speaking of slave raids on the Paria Peninsula – the most northeasterly point of Terra Firme: modern-day Venezuela – Bartolomé de Las Casas wrote in 1542 that: It is a fact beyond dispute that whenever one of these vessels set sail, loaded to the gunwales with natives who have been rounded up and forcibly embarked, at least a third of the poor wretches perish during the voyage and are thrown overboard, and one has also to remember that may are killed before they ever get as far as the ships. The reason the death-toll is so high is that, in order to maximize profits, the men who finance these slave-fleets arrange for the vessels to carry nothing in the way of victuals except a basic minimum for the crew and so there is hardly any food or water for the poor prisoners who, as a consequence, perish from thirst and hunger and are consigned to a watery grave.42

As Blackburn relates, the “first expeditions sent to the American mainland by the colonist of the Antilles had slave-raiding as their primary objective; in the period 1515–1542 as many as 200,000 Indians were seized in Nica­ ragua alone and brought as slaves to the Antilles”.43 Ernest Nys quoting Alexander von Humboldt, noted that by a 1503 legal provision the Crown 40 Henry Wagner and Helen Parish, The Life and Writings of Barolomé de Las Casas, 1967, p. 9. Fray Bernardo de Mesa provided justification for the servitude of the native population on the basis of their ‘incapacity’: The Indians are not slaves by war, purchase, or birth. The only reason for [their] servitude is a natural lack of understanding and capacity and perseverance in the faith and good customs, and perchance the nature of the country (there are some lands which the aspects of the heavens makes servile). They cannot be called slaves, but for their own sake must be ruled in some sort of servitude. Id. 41 G.L. Huxley, “Aristotle, Las Casas and the American Indians”, Proceedings of the Royal Irish Academy, Volume 80, 1980, p. 58. 42 Bartolomé de Las Casas, A Short Account of the Destruction of the Indies, 1992, p. 92. 43 Blackburn, n. 29, p. 133.

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had “authorized compulsory labor, arbitrary taxation of wages, the right to transporting of natives to the most distance parts of the island [re: Hispaniola] and of separating them for six and then eight months from their family”. Nys goes on to note a 1503 decree allowing for the “reduction into captivity and the sale of the Caribs of the isles and of the mainland”, and a 1511 decree “that Caribs should be branded with hot iron”.44 It is into this world, which we witness the emergence of Francisco de Vitoria (1483–1546), a member of the Dominican Order who, in 1526, took up, for a twenty-year period, the Chair in Theology at the University of Salamanca and was considered by James Brown Scott as deserving recognition as the true holder of the mantel of the ‘father of international law’.45 It should be recognised that Francisco de Vitoria was “a man of his day and generation, when Greek as well as Latin and the learning of antiquity had been rediscovered and the civilization of the ancient world and entered into what we may call the civilization of the medieval world, which was developing, because of humanism, into the modern world”.46 It was from this source – the ‘Classics’ of Western Civilisation – that contemporary international law would find its inspiration, justification, and rationalisation during its formative years. As such, Vitoria looked in the first instance to Aristotle for his considerations of slavery. In his On the Indians Recently Discovered, Vitoria utilises Aristotle’s pronouncement that “some are by nature slaves, those, to wit, who are better fitted to serve than to rule” as a foil. Vitoria argues the proposition, providing the following understanding of Aristotle: My answer to this is that Aristotle certainly did not mean to say that such as are not over-strong mentally are by nature subject to another’s power and incapable of dominion alike over themselves and other things; for this is civil and legal slavery, wherein none are slaves by nature. Nor does the Philosopher mean that, if any by nature are of weak mind, it is permissible 44 Ernest Nys, “Introduction”, Francisci de Vitoria, De Indis Et De Ivre Belli Reflectiones, 1696, 1917, p. 85. Note Ronald Hussey, “Documents – Text of the Laws of Burgos (1512–1513) Concerning the Treatment of Indians”, The Hispanic American Historical Review, Volume 12, 1932, pp. 301–326. 45 See James Brown Scott, The Spanish Origins of International Law: Francisco de Vitoria and His Law of Nations, 1934. For a critique of Scott’s stance on the Spanish School, see Arthur Nussbaum, “James Brown Scott on the Superiority of the Spanish Scholastics over Hugo Grotius” Appendix II, A Concise History of the Law of Nations, 1954, pp. 296–306. For a critique of The Spanish Origins see Fernando Gómez, “Francisco de Vitoria in 1934, Before and After”, MLN: Modern Language Notes, Vol. 117, 2002, pp. 365–405. 46 Brown Scott, id., p. 69.



of slavery and the law of nations25 to seize their patrimony and enslave them and put them up for sale; but what he means is that by defect of their nature they need to be ruled and governed by others and that it is good for them to be subject to others, just as sons need to be subject to their parents until full age, and a wife to her husband.47

Scott praises Vitoria for this stance, saying that in the half-dozen lines that will now follow: “he unhorses the reactionaries and gives us all hope of dominion and of human and political freedom”. Francisco de Vitoria’s statement is this: that “even if we admit that the aborigines in question are as inept and stupid as is alleged, still dominion cannot be denied to them, nor are they to be classed with the slaves of civil law”. However, Scott’s ‘praise’ should not be deemed the full story. Vitoria accepted that Spain could establish lawful title over its New World possessions, in the first instance on the basis of the ‘just war’ doctrine – though he provides six further basis for establishing Spanish title. In seeking to understand the relationship between Spain and the inhabitants of the New World, Vitoria turns to jus gentium: “What natural reason has established among all nations is called jus gentium”. For Vitoria, such natural reason – that is: a natural jus gentium – entails the ability of Spaniards to “travel into the lands in question and to sojourn there” and to “lawfully carry on trade among the native Indians”.48 If, however, the native population objects and “persist in their hostility and do their best to destroy the Spaniards, then they can make war on the Indians, no longer

47 Francisco de Vitoria, The First Reflecto of the Reverend Father, Brother Fransicus de Victoria On the Indians Lately Discovered, in Brown Scott, id., Appendix A, pp. xiii-xiv. The passage in full continues: And that this is the Philosopher’s intent is clear from his corresponding remark that some are by nature masters, those namely, who are of strong intelligence. Now, it is clear that he does not mean hereby that such persons can arrogate to themselves a sway over others in virtue of their superior wisdom, but that nature has given them capacity for rule and government. Accordingly, even if we admit that the aborigines in question are as inept and stupid as is alleged, still dominion cannot be denied to them, nor are they to be classed with the slaves of civil law. True, some rights to reduce them to subjection can be based on this reason and title, as we shall show below. Meanwhile the conclusion stands sure, that the aborigines in question were true owners, before the Spaniards came among them, both from the public and private point of view. 48 Id., in Brown Scott, n. 45, Appendix A, pp. xxxvi and xxxvii. Note the considerations of Robert Williams, The American Indian in Western Legal Though: The Discourses of Conquest, 1990, p. 102; where he notes: “Vitoria had elevated the profit motive to an extremely privileged status in his totalizing discourse of a universally obligatory natural Law of Nations”.

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as on innocent folk, but as against forsworn enemies”. This then allows for the enforcement against them of the laws of war: “Despoiling them of their goods, reducing them to captivity, deposing their former lords and setting new ones, yet withal with observance of proportion as regards the nature of the circumstances and the wrong done to them”. Vitoria continues, by stating that “it is a universal rule of the law of nations that whatever is captured in war becomes the property of the conqueror”. Quoting from the Roman Law, he goes on to say that by jus gentium “whatever we take from the enemy becomes ours at once, to such an extent that even man may be brought into slavery to us”.49 Having accepted that the inhabitants of the New World can be enslaved by Spanish conquest on the basis of the application of jus gentium, Vitoria in his On the Indians, or On the Law of War made by the Spaniards on the Barbarians, turns to consider the issue in more depth. In the context of examining whether it is acceptable to kill innocent people in times of war, Vitoria notes that, while it “is never right to slay the guiltless”, it is allowable “when there is no other means of carrying on the operations of a just war”.50 Then, turning to the issue of slavery, he notes: Assuming the unlawfulness of the slaughter of children and other innocent parties, is it permissible at any rate, to carry them off into captivity and slavery? This can be cleared up in a single proposition, namely: It is in precisely the same way permissible, at any rate, to carry the innocent off into captivity as to despoil them, liberty and slavery being included among the good things of Fortune.51

While we shall return to hear further what Vitoria has to say on the issue of slavery, it is worth stopping here to consider the last phrase. Scott, underplaying his hand, notes that this “statement seems to require justi­ fication, because we of today are not inclined to include slavery among the ‘good things of Fortune’. Scott justifies this approach in the following manner: in “primitive times the enemy was to be put to the sword, when captured – which obviated any discussion of captivity. The extreme right of killing was sometimes renounced, in order that the prisoners taken might serve as slaves. Finally the occasional practice became the general rule. Therefore it was international law”.52 49 Vitoria, id., Appendix A, pp. xl and xli. 50 Francisco de Vitoria, The Second Reflecto of the Reverend Father, Brother Fransicus de Victoria On the Indians, or On the Law of War made by the Spaniards on the Barbarians, in Brown Scott, id., Appendix B, p. lxiii.  51 Vitoria, id., Appendix B, p. lxiv. 52 Brown Scott, id., p. 232.



of slavery and the law of nations27 Returning then to the words of Vitoria: And so when a war is at that pass that the indiscriminate spoliation of all enemy-subjects alike and the seizure of all their goods are justifiable, then it is also justifiable to carry all enemy-subjects off into captivity, whether they be guilty or guiltless. And inasmuch as war with pagans is of this type, seeing that it is perpetual and that they can never make amends for the wrongs and damages they have wrought, it is indubitably lawful to carry off both the children and women of the [Indians] into captivity and slavery.53

In this manner Vitoria, sets out the legal grounds allowing for the enslavement in the New World: that the indigenous population are not, in an Aristotelian manner, slaves by nature; but are susceptible to enslavement as spoils of war wherein jus gentium is deemed to be part of natural law. That is to say, under the pen of the scholastic Vitoria, the humanity of the native population of Spanish America is recognised, but its subjugation in jus gentium as a by-product of conquest is deemed to be a part of natural law. The understanding of slavery in the context of the formation of the Spanish Empire and its application to the indigenous populations of the New World did not go unchallenged and led to a curiosity in the annals of Empire: a declared suspension of the wars of conquest by the King of Spain in 1550, so as to hear arguments as to whether it was permissible to forcefully incorporate the inhabitants of the New World into the Spanish Empire. The basis of the famous debate at Valladolid between Juan Ginés Sepúlveda (1490–1573), the official chronicler and a chaplain of the King, who put forward “an erudite presentation of the Aristotelian thesis of ‘slaves as nature’, as the basis of the right of people to enslave peoples who they judge to be inferior”54; and Bartolomé de Las Casas (1484–1566), the Dominican Bishop of Chiapas and ‘Protector of the Indians’, who countered that the natives of Spanish America were not heretics but pagans who, as subjects of the Crown, should not be enslaved but assimilated through their conversion to Christianity.55

53 Vitoria, n. 50, Appendix B, pp. lxiv-lxv. 54 Manuel Giménez Fernández, “Fray Barolomé de Las Casas: A Biographical Sketch”, Juan Friede and Benjamin Keen (eds.), Barolomé de Las Casas in History: Towards and Understanding of the Man and His Work, 1971, p. 108. 55 Huxley, n. 41, p. 64. It might be emphasised that the views of Bartolomé de Las Casas on the enslavement of the indigenous population of Spanish America differed from Francisco de Vitoria. In 1552, Las Casas published his Treaties about the Indians Who Have Been Made Slaves, in which he “lays down the basic principle that all Indians made slaves since the conquest had been unjustly and iniquitously enslaved, and those still alive were

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The debate originated in the Las Casas inspired ‘New Laws’ of 1542 which ended native slavery and abolished the encomiendas – though provisions related to the latter were revoked in 1545.56 The ‘New Laws’, the Law and Ordinances Newly Made for the Government of the Indies and the Good Treatment and Preservation of the Indians, ordered that henceforth: Neither by war nor by any other means, even if it be under the guise of rebellion, nor by barter, nor in any other way, shall any Indian whatsoever be made a slave, and we wish them to be treated as vassals of the Crown of Castile, for such they are.57

Sepúlveda, for his part failed to receive permission from the Council of the Indies to publish his 1543 Democrates Alter, setting out his thesis that the inhabitants of the New World were slaves by nature, which Antony Pagden considers as “one of the most virulent onslaughts on the Indians ever written”. As a result of protest by Sepúlveda, his text was submitted for examination to a joint panel at the universities of Salamanca and Alcalá, which then opposed its publication in 1548 (that is to say, two years after the death of Vitoria).58 As Pagden relates, the “theologians claimed that the book was doctrinally unsound, the work of a man who, while he was probably a good Latin stylist, was a poor logician and a worst theologian”.59 Kind words beside those of Blackburn, who considers Democrates Alter to mostly held by the Spaniards with bad conscience, even if obtained from other natives”. Instead, as Henry Wagner and Helen Parish note: “By way of proof, he reviews the grisly annals of Indian enslavement – the methods of slavers, whole provinces depopulated by slave raids […]. Therefore, [Las Casas] says, the Emperor is obliged by divine precepts to put all the Indian slaves at liberty”. Thus, Las Casas was unwilling to accept that fate of slaves. Henry Wagner and Helen Parish, The Life and Writings of Barolomé de Las Casas, 1967, pp. 126–127. 56 See César Castañón, “Les problèmes coloniaux et les classiques espagnols du droit des gens”, Recueil des cours, Volume 86, 1954, pp. 626–642. Simpson provides the following assessment to the effects of such laws as the ‘New Laws’: “but much of the Utopian legis­ lation was evidently adopted merely to appease the clerical elements, as is borne out by the fact that everyone, from the governors down, ignored with impunity all measures that conflicted with the common interest of Crown and colonist”. Lesley Byrd Simpson, The Encomienda in New Spain: The Beginning of Spanish Mexico, 1966, p. 2. 57 Henry Wagner and Helen Parish, The Life and Writings of Barolomé de Las Casas, 1967, p. 114. 58 Though unsubstantiated, Wagner and Parish write that Vitoria “the great authority on such questions, was still alive in August 1546, so he might conceivably have had something to do with the original denial of permission [re: by the Council of the Indies] to print the book”. Henry Wagner and Helen Parish, The Life and Writings of Barolomé de Las Casas, 1967, p. 176, fn. 15. 59 Antony Pagden, “Introduction”, Bartolomé de Las Casas, A Short Account of the Destruction of the Indies, 1992, p. xxvii-xxix.



of slavery and the law of nations29

be “the strenuous racism and imperialist apologetics of Sepúlveda”.60 While there was no determination as to who was the victor of the debate of 1550–1551 in Valladolid, the fact that Sepúlveda’s book was not allowed to be published and that Las Casas found favour with the Crown speaks volumes.61 Despite this, Las Casas’ ‘victory’ was, at best, theoretical as “in practice the cruel treatment of the Indians was continued by the colonists”.62 Bartolomé de Las Casas is rightly revered for his support of the indigenous peoples of the Americas. Yet, his legacy has been tarnished as a result of his support in 1516 of the substitution of African slaves for Indian slavery in Spanish America. As Blackburn relates, for Las Casas, the situation of Africans seemed different than the fate of Indians who were dying in such drastic numbers: “They survived life in the islands as well or better than Spaniards. They had a legal status with some rights, defined by Spanish law. […] Far removed from their native lands, they were regarded by colonists as more dependable than the fickle and treacherous Indians […]. When they were put to hard tasks, Africans carried them out effectively”. Having taken his stance, Las Casas would later repent, though he was ‘unsure whether God would pardon him”.63 Writing many years later and in the third person about his plan of 1516, he noted; “This advice to give licence for the bringing of black slaves to those lands was first given by [a younger de Las] Casas, who was unaware of the injustice with which the Portuguese take them and make slaves of them; later after falling into this snare, he regretted it and would not have given that advice for all the world, for he always believed them made slaves unjustly and tyrannically, because they have the same right to freedom as Indians”.64 Although Africans had been introduced into Spanish America as early as 1503, it was not until the latter part of the Sixteenth Century – for our purposes, after the death of Francisco de Vitoria in 1546 – that slavery in 60 Blackburn, n. 29, p. 151.  61 See Angel Losada, “The Controversy between Sepúlveda and Las Casas in the Junta of Valladolid”, Juan Friede and Benjamin Keen (eds.), Barolomé de Las Casas in History: Towards and Understanding of the Man and His Work, 1971, pp. 279–306 and Robert Quirk, “Some Notes on a Controversial Controversy: Juan Ginés Sepúlveda and Natural Servitude”, The Hispanic American Historical Review, Volume 34, 1954, pp. 357–364. 62 Gesina van der Molen, Alberico Gentili and the Development of International Law: His Life Work and Times, 1968, p. 81. 63 Blackburn, n. 29, p. 136. 64 See Marcel Bataillon, “The Clérigo Casas, Colonist and Colonial Reformer”, Juan Friede and Benjamin Keen (eds.), Barolomé de Las Casas in History: Towards and Under­ standing of the Man and His Work, 1971, pp. 415–416.

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Spanish America came to be associated with Africa and the Transatlantic slave trade. While this holds true, it should be noted that indigenous slavery did not come to an end, instead it continued, though in an ever diminishing manner and mostly at the peripheries of the Spanish Empire.65 As such, though Francisco Suárez (1548–1617), a Jesuit theologian and the ‘last of the scholastics’, is considered as complementing Vitoria as part of the ‘Spanish School of International Law’; his writings of the early Seventeenth Century are no longer preoccupied with the issue of slavery. In general terms, where Vitoria sought to deal with the contem­ porary issues resulting from the Voyages of Discovery, Suárez was more interested in setting out the theoretical foundations of the basis of natural law, and in so doing he added clarity to Vitoria’s approach to the issue of the enslavement of the indigenous population of the New World. Suárez notes that slavery as part of the laws of war falls squarely within the jus gentium: For peoples and nations, in their relations with one another, put into practice the law regarding slavery, although that institution was not necessary for the standpoint of natural reason; for, as I have said, another mode of punishment could have been introduce [re: death]. Under present conditions, however, the law in question exists in such form that the guilty are bound to submit to the punishment of slavery in accordance with the manner in which that custom has been introduced, while the victors, on their side, may not justly punish their conquered enemies more severely at the close of the war unless there exists some other special ground for punishment with would justify such a course of action.66

Like Vitoria before him, Suárez while denying that the indigenous population of the New World are slaves by nature, accepts that their enslavement as captives in war is natural. Suárez while acknowledging that slavery is not natural, goes on to say that jus gentium as established through the “habitual conduct of nations” is “quite in accord with nature”: Such communities have need of some system of law whereby then may be directed and properly ordered with regard to this kind of intercourse and association; and although that guidance is in large measure provided by natural reason, it is not provided in sufficient measure and in a direct 65 Note Seymour Drescher, Abolition: A History of Slavery an Antislavery, 2009, p. 42; where he writes “The enslavement of Native Americans continued as integral to the arsenal of Iberian colonial labor control for 250 years. It remained quasi-legitimate until the very end of the colonial era”. 66 Francisco Suárez, Selection from Three Works of Francisco Suárez, S.J., 1944, Volume 2, De Legibus, Ac Deo Legislatore, (On the Laws of God the Lawgivers), 1612, pp. 347–348.



of slavery and the law of nations31 manner with respect to all matters; therefore, it was possible for certain special rules of law to be introduced through the practice of these same nations. For just as in one state or province law is introduced by custom, so among the human race as a whole it was possible for laws to be introduced by habitual conduct of nations. This was the more feasible because the matters comprised within the law in question are few, very closely related to natural law and most easily deducted therefrom in a manner so advantageous and so in harmony with nature itself that, while this derivation [of the law of nations from natural law] may not be self-evident – that is, not essentially and absolutely required for moral rectitude – it is nevertheless quite in accord with nature, and universally acceptable for it own sake.67

Thus, for the leading lights of the Spanish School of International Law, Francisco de Vitoria and Francisco Suárez, the enslavement of the indigenous population of the New World was in accord with nature, one based on the jus gentium which allowed for slaves to be created as a by-product of war. The next two authors to be considered were very much concerned with events within Europe and wrote about the narrower topic of the application of the laws of war in Europe amongst Christian States. Both Balthazar Ayala (1548–1584) and Pierino Belli (1502–1575), wrote their treatises in service of the Spanish Crown. Ayala, who was born to Spanish parents in Antwerp, wrote his 1582 On the Law of War “as a formal justification of the operations of Phillip’s armies [re: Philip II of Spain] against the revolting Netherlands”.68 Belli, for his part, was born in Alba – between Turin and Genoa – and rose to the equivalent of Judge Advocate General in the armies of Charles V and Philip II of Spain. His 1563 A Treatise on Military Matters and Warfare is more a dispassionate consideration, “an exposition of the international law of war which results from the application of the principles of natural law”.69 While Belli is not deemed by posterity to be foundational to the establishment of international law; he does give the earliest, most thorough, consideration to the issue of slavery in his Treatise. While focused on legal issues touching on enslavement in times of war, Belli does mention the epochal events of his lifetime, – it being recalled that his Treatise was 67 Id., p. 349. 68 W.S.M Knight, “Balthazar Ayala and His Work”, Journal of Comparative Legislation and International Law, Volume 3, 1921, p. 225. 69 Arrigo Cavaglieri, “Introduction”, Pierino Belli, De Re Militari et Bello Tractatus, 1563, 1936, p. 13a. Note that his Treatise was described by a review of the Classics series as “a great precursor of Grotius”. See Garrard Glenn, “Book Review – De Re Militari …” Virginia Law Review, Volume 23, 1937, p. 962.

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published more than a decade after the debates at Valladolid – as he notes that: not only in war does enslavement take place, but also apart from it. For if a person should go among a people with whom his countrymen had no ties of hospitality or friendship, or if any one from such a place should come amongst us, he would be the slave of the person seizing him.  With good right, therefore, the Spaniards enslaved those Indians of the West, who live far away from our world, and were unknown to the Greeks and Romans, but who were discovered in our times through perilous and bold navigation (under Spanish auspices and the patronage of the rulers Ferdinand and Isabella, and later of Charles V, Emperor and King of this name, but through the agency and toil of a man of Italy, Christopher Columbus of Genoa) with good right, I say, the Spaniards enslaved those Indians, as allowed by the law just cited; unless one were to assume that this law refers to a foreigner captured as he goes among strangers, and not to foreigners captured in a strange land. (On this principle, perhaps, the aforementioned rulers, actuated by the Christian spirit, which they cultivated to a high degree, gave orders that if those peoples accepted the religion of Christ, they should live in freedom under their own laws.)70

While Pierino Belli does mention the plight of indigenous slaves in Spanish America, like the focus of the other classic international jurists to follow, his interest shifts to consider what is, in essence, an insular Christian public law centred on international relations within Europe. Within the canon of international law as mapped out by Scott in the Classics of International Law series little is spoken of the enslavement transpiring in the New World, either indigenous or African. Instead the focus is on Europe and enslavement in times of war; Belli’s consideration of the laws of war follows in the footsteps of Vitoria and Suárez, as he cites as authority Greco-Roman and canonical sources. As for slaves, he considers their fate under the heading of property captured in war, stating that: beyond a doubt slaves are so called from being ‘spared’ (servari). For nature herself admonishes us that it is humane to spare captured enemy and not to kill him. For it is not right to treat a prisoner with cruelty or to put him to death; and it is far more merciful to refuse to receive surrender and to press the fight to a finish.

Having provided examples of the killing of prisoners, Belli concludes that “in our wars at times we have seen captives slaughtered – a practice most abominable”.71 70 Pierino Belli, De Re Militari et Bello Tractatus, 1563, 1936, p. 85.  71 Id., pp. 85–86.



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As Belli writes in 1563, it appears that slavery has ebbed away from the laws of war in the context of the Wars of Spanish Succession, as slavery by capture in war is not meant to be a permanent status. Instead, as Belli relates, it is deemed “obsolete to-day, and that enslavement and servitude are replaced by a ransom imposed upon the captive”. As a result, it is no longer applicable that “a man taken in war changes from a person to a thing, and is rated like an ass or some other movable”.72 We shall see Belli’s understanding of the demise of enslavement in times of war is premature; but to this we shall return. Instead, let us move to further consider Belli’s writing and his examination of postliminium. As Belli explains, “Postliminy rests upon the same law [re: the law of nations] as do war, captivity, and enslavement. It consists in the right to recovery of something in the possession of the enemy”. The right of postliminy applies to both slaves and free men. While free men may be able to recover their property at the end war, the slave remains the property of his or her owner. With regard to deserters, this does “not impair his master’s right over him if he is recovered”. This is so, as Belli explains, as one could not imagine more from a slave than to desert. As such, the laws related to postliminy and desertion “fall under the head of acts for which the noble are punished more severely than the ignoble. [… For] who would expect in a slave other qualities than those of his station?”.73 In the case where the free man has deserted, they “deservedly suffer extreme loss of civic rights”; that is: the lost their right of postliminy.74 Where wars transpire as between Christians, the laws of postliminy have “little application”, as Belli speaks of a rule having emerged that prisoners remain free persons, but they have “imposed upon them the burden of a ransom to the extent of their ability, or in a sum agreed upon, being held meanwhile by the captors as security”. Here Belli concludes that being “brothers, therefore, and not enemies, even though they go to war, Christians do not become slaves of the captors”.75 It might be noted here that while subsequent authors included in the Classics of International Law series consider postliminy as it relates to slavery, no more consideration will be given to its substances or evolution in this study, as it is tangential to the justification of slavery in international law.

72 Id., p. 98. 73 Id., p. 104. 74 Id., p. 227. 75 Id., pp. 115–116, 242.

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Some twenty years after the appearance of Belli’s 1563 A Treatise on Military Matters and Warfare, Balthazar Ayala reverts, in his 1582 On the Law of War, to a more classic understanding of slavery within the laws of war. It has been said that Ayla “seem to have had in front of him when composing his own work” Belli’s De Re Militari et Bello Tractatus.76 Although Ayala is seen as “a complier, digesting part of the great mass of scholastic learning on his subject, rather than as an original thinker”,77 he deals with the issues touching on slavery in a more systematic manner than Belli. Ayala gets right to the point: “things captured in a just war apply also to free persons so captured. This is a doctrine both of the law of nations (jus gentium) and of the civil law; they become the slaves of their captors and are no longer persons but things subject to ownership. This is the origin of slavery”.78 For Ayala, covering the ground established by Aristotle but then noting that “our jurists affirm that slavery is against nature and belongs to the law of nations (jus gentium)”, he does not give as justification that enslavement is better than death. Instead, Ayala argues that it is beneficial to the State: Slavery, then, was unknown to the law of nature – according to which all men were born free and reckoned each other’s peers and equals; yet it was left open to the jus gentium to develop slavery and to introduce the doctrine that prisoners captured in a just war become slaves – and this all the more so because of its utility to the State as a means of repressing those who wage unjust war. That same reason, accordingly, which permits war enjoined the introduction of slavery.79

Ayala then quotes St. Augustine to the effect that servitude results from transgressions of law which disturbs the natural order; but ultimately enslavement “results from certain matters of law and is an institution of the jus gentium”.80 From here, Ayala notes that slavery no longer exists as between Christians, instead prisoners of war “are kept with their freedom intact until payment of ransom”. However, where Christians fight on the side of Muslims, they would be deemed infidels and thus susceptible to being sold off into slavery, though not to Christians. With this, Balthazar Ayala makes plain that enslaving prisoners is dangerous; pointing to servile wars 76 Knight, n. 68, p. 222. 77 Id., p. 221. 78 Balthazar Ayala, De jure et officiis bellicis et disciplina militari, 1582, 1912, p. 40. 79 Id., p. 41. 80 Id., p. 41.



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and plots during Roman times, he makes plain that it is “inexpedient and charged with danger to the State” to have large number of slaves. For Ayala then, the contemporary law of the Sixteenth Century regarding the enslavement of Christians as prisoners is set: “one who in olden times would have been made a slave, incapable of owning anything and subjected to another’s ownership both as regards person and property” is now different as a Christian taken in war “does not pass into ownership of his captor, nor does any right which is so inherent in his person as to be inseparable from it, vest in his captor”.81 Enslavement of pagans, however, is another matter. During the Sixteenth Century, while both the indigenous population and indigenous slavery receded from the horizons of history; the trade in Africans to the New World had started in earnest. Of the known slave voyages of the Sixteenth Century it is established that under a hundred thousand slaves there embarked from the African coast with nearly seventy thousand Africans having survived to be disembarked in Spanish America.82 It will be recalled that the bulls of donations and the 1494 Treaty of Tordesillas, as between Portugal and Spain, established a monopoly on either side of a longitudinal line which effectively excluded Spain from access to the African slave market. To provide African slaves to labour in the Americas, Spain turned to granting assientos – trade monopoly licences.83 While the first such assiento de negros was issued in 1528 to Augsburg merchants, over time they would lose their private law character and became treaty based, being amalgamated into one assiento early in the Eighteenth Century. While Spain provided hundreds of assientos to supply Spanish America, these were, in the main, given to subjects of the Spanish Crown, the Assientos de negros by contrast were different as Spain lacked direct access to African markets. As a result, as Georges Scelles relates, the advantage of other Maritime Powers in seeking the Assientos de negros, was that it provided a pretext through which other types of goods could be sold into the Western Hemisphere. Scelles writes: “the slave trade supplied the easiest

 81 Id., p. 54. 82 See Voyages: The Trans-Atlantic Slave Trade Database. http://www.slavevoyages.org. 83 An assiento may be understood as “a treaty between the Spanish crown and a legal person, that is a private person or a company, by which the crown rented to the contracting party for a defined period the monopolistic right to merchandise a certain commodity”. See Andreas Weindl, “The Asiento de Negros and International Law”, Journal of the History of International Law, Volume 10, 2008, p. 230.

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method and the most advantageous screen to hide the goods with which they inundated the markets of the New World, and that is why the Dutch, Portuguese, French and English contended for the privilege of furnishing the subjects of His Catholic Majesty with labor”.84 That screen was used to good effect during the Seventeenth and first half of the Eighteenth Century – that period when the assientos and the monopoly remained relevant. As the relative power of Iberian States gave way to other European maritime powers, the Papal-based monopolies over the undiscovered world were lost to so-called ‘interlopers’, with the British, Brandenburgs, Danes, Dutch, French, Norwegians, and Swedes establishing a colonial presence in the both the New World and Africa. During this period, from 1500 to 1750, the transatlantic slave trade would start to see an exponential increase, as during the Seventeenth Century approximately 825,000 slaves were shipped from Africa, while during the first half of the Eighteenth Century that number would grew by two million.85 Where international law is concerned, the ‘Spanish School of Inter­ national Law’ and its moral theologians giving voice to Roman codes, gave way to those like Gentili and Grotius who, as Protestants, did not feel the “inveterate burdens of theology, casuistry and scholasticism”.86 As the centres of power in Europe shifted during the Reformation, so too did the ability to form international law in a different image, one in line with an emerging new dominate order. Alberico Gentili (1552–1608), though born in Italy and having received his doctorate at the University of Perugia, would be forced to leave ahead of the Inquisition which persecuted his father for having converted to Protestantism. Eventually, Gentili would settle in England and became, in 1587, the Regis Professor of Civil Law at the University of Oxford. In 1598 he published De Iure Belli, which breaks down the laws of war into three parts, that is: “in what circumstances is war just undertaken, conducted, and terminated”.87 84 Georges Schelle, “The Slave trade in the Spanish Colonies of America: The Assiento”, American Journal of International Law, Volume 4, 1910, p. 618. See also Georges Schelle, La traite négrière aux Indes de Castilles, contrats et traités d’assiento, étude de droit public et d’histoire diplomatique puisée aux sources originales et accompagnée de plusieurs documents inédits,1906. 85 See Voyages: The Trans-Atlantic Slave Trade Database. http://www.slavevoyages.org. Note that between 1600 and 1750, of the 2,833,000 slaves taken from the African coast, 475,000 died before reaching their destination in the New World. See id. 86 Coleman Phillipson, “Introduction”, Alberico Gentili, De Iure Belli Libri Tres, 1612, 1933, p. 11a. 87 Id., p. 17a.



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Where slavery is concerned, Gentili devotes chapters to captives, prisoners, those who surrender to the enemy, and one to the fate of slaves after the termination of hostilities. In general terms, Gentili considers that “captives ought to be spared”; stating that previously it had been a practice to put to death military leaders, but that “now it is the common soldiers who are slain”. Gentili laments the turn of events: “The leaders, the rich, are saved, that they may ransom themselves. O unjust for of waging war and cruel traffic!”. Despite this, and making plain that he disagrees with the putting to death of common soldiers he writes: “yet I do not approve the death even of the captured leaders (if you wish to hear my opinion), but I merely desire this, that by far the greatest number be spared”.88 Having established that prisoners should not, as a rule, be put to death, Gentili states that: we cannot approve of perpetual imprisonment either, if the victor has any other means of insuring the permanence of the victory which he has won. For the end of victory is to be able to enjoy it. And perpetual imprisonment means that one must not be set free except for an intolerable price or on conditions which are otherwise unfair.89

Gentili then set out the modalities for the exchange and liberation of prisoners, including ransom and the price of freedom (“This ought not to be immoderate”).90 Having established that prisoners should be spared their life and released upon the termination of hostilities, Alberico Gentili turns to consider slavery: A state of slavery exists when there is no hope of freedom. Moreover, slavery is among the greatest ills which befall surrendered or captured soldiers, since by it one is subjected to another’s domination and reduced to the condition of a beast. One is deprived of one’s nature and becomes a chattel instead of a person. Therefore those who were slaves were called commonly ‘bodies’ by the Greeks. Slavery is all but death.91

As Gesina van der Molen, a Gentili biographer notes, mirroring the words of her subject: “generally speaking, Gentili has no hesitation in saying that the condition of slavery is a just one. He calls it a provision of the law of

88 Alberico Gentili, De Iure Belli Libri Tres, 1612, 1933, pp. 215 and 325. 89 Id., p. 327. 90 Id., p. 204. 91 Id., p. 328. Note the same contemporary conclusions in Orlando Patterson, Slavery and Social Death: A Comparative Study, 1982.

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nations”.92 Gentili seeks to inculcate his readers with the sense that slavery has never existed among Christians, as he writes “it is generally believed that in the wars of the Christians there was no slavery”.93 He does not follow-up this assertion, instead leaving the statement unchallenged, thus creating the impression that, in fact, Christians had not enslaved others in war. Instead, Gentili explains how wars of Christendom are “more than civil” and that, as a result, “an enemy may not be held captive perpetually”. However, in situations where a war is against those of a different faith or against pagans and a person is captured, “he would remain a slave continually, even when the war was ended, if there was no provision about him in the terms of peace”.94 Gentili concludes his considerations on slavery by stating that “slavery belongs to the law of nations, and today is common to Christians with all infidels”, while noting that “our laws restrain the cruelty of masters, as well as their shamelessness and ill-treatment of their slaves”.95 In the writing of Alberico Gentili we witness a shift in the understanding of slavery which corresponds with the growing importance of the transatlantic slave trade. Gentili goes further than allowing for the enslavement of pagans and Muslims captured in war as he argues that slavery is in fact natural, a result of divine retribution. Gentili writes: “I agree with Thomas Aquinas that slavery is really in harmony with nature”, as it allows sinners to be punished.96 Setting out his understanding of slavery, Gentili argues that: we are not created free by nature so absolute that very many of us may not be made slaves; and besides, the fact that anything seems to all men to be true is an argument for its truth, as Seneca says. Aristotle, too, declares that what always happens does not happen by fortune or by chance, and that a thing is natural which is wont to happen always and everywhere. […] Therefore slavery belongs to the law of nations.97

Gentili’s fatalistic approach to slavery runs counter to the approach of his contemporary, Jean Bodin (1530–1596) who Gentili considers to be 92 Gesina van der Molen, Alberico Gentili and the Development of International Law: His Life Work and Times, 1968, p. 144. See Alberico Gentili, De Iure Belli Libri Tres, 1612, 1933, p. 330. 93 Gentili, n. 88, p. 328. 94 Id., p. 328. 95 Id., pp. 332–333. 96 Id., p. 330. 97 Id., pp. 331–332. It might be noted here that the editing of the Carnegie Institute Series of Classics in International Law was such that the term ‘jus gentium’ and the ‘law of nations’ were often used synonymously.



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“exceedingly silly”. This is so, as Bodin – who will be known to international jurist for his theorising of sovereignty – challenges “the argument that slavery could not have been so enduring if it had been contrary to nature”: I would answer that the principle holds good for natural agents whose property it is to obey of necessity that unchanging laws of God. But man, being given the choice between good and evil, inclines for the most part to that which is forbidden, and chooses the evil, defying the laws of God and nature. So much is such a one under the domination of this corrupt imagination, that he takes his own will for the law. There is no sort of impiety of wickedness which in this way has not come to be accounted virtuous and good. I will be content with one instance. It is sufficiently obvious that there can be no more cruel and detestable practice than human sacrifice. Yet there is hardly a people which has not practised it, and each and all have done so for centuries under the cover of piety. In our own times it was common throughout the Western Isles …  Such thing show how little the laws of nature can be deducted from the practices of men, however inveterate, and one cannot on those grounds accept slavery as natural. Again, what charity is there in sparing captives in order to derive some profit or advantage from them as if they were cattle? For where is the man who would spare the lives of the vanquished if he saw more profit in killing than in sparing them?98

In an age of viral contempt for Islam, Bodin gives consideration to progress in the area of slavery under the Islamic faith in his 1576 Six Books of the Commonwealth, saying first: “Since the Christian religion was established however, the number of slaves has diminished”. Then he continues: “The process was hastened by the publication of the law of Mahomet, which enfranchised all who professed that faith”. Bodin argues that had Christians, Jews, and Muslims followed their religious precepts, slavery would have died away, but instead they had “only partially observed the law of God with regard to slaves”. As a result: the experience of four thousand years has shown us the insurrections, the civil commotions, the disasters and revolutions that commonwealths have suffered at the hands of slaves, and the homicides, the cruelties and barbarities inflicted on slaves by their masters, it was an unmitigated catastrophe that the institution was ever introduced, and then, that once it had been declared abolished, it should ever have been allowed to persist [re: having all but died away in Europe, was re-introduced in the New World].99

98 Jean Bodin, Six Books of the Commonwealth, 1576 (M.J. Tooley translation), 1955; p. 17. 99 Id., pp. 17 and 18.

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Alberico Gentili, for his part, argues that Bodin misses the point: He does not countenance slavery even among men of different religions” and then continues: “although perhaps it would be better for it to be accepted among those of the same religion; for in that case not so many men would be put to death, if the law of slavery existed among all men. Thus in civil strife, which is always abnormal, wretched, and the worst of all wars, it is believed that more men are slain because the captives do not become the slaves of the captors”.

Gentili concludes his critique of Bodin by making a statement which posterity has turned against him: that Bodin “tries to show that the law of slavery is not a part of the law of nations. But the founders of the science of law, Plato, Xenophon, and Aristotle, oppose him; and who does not”?100 For David Brion Davis, the dean of slavery studies, Jean Bodin originated “what may properly be called an antislavery philosophy”. Davis notes that: of all the Renaissance political thinkers he was in some way the most original and modern. He did much to create the idea of sovereignty as a supreme political authority which responds to change by constructive legislation. His views on slavery were no more anomalous than were his views on the state, and in the last analysis must be regarded as the product of a uniquely independent mind.101

Between Bodin and Gentili we thus witness a discrepancy between a possible avenue of the law as it should be (lex ferenda) and the law as it is (lex lata) of the burgeoning law of nations where it touches on slavery. That discrepancy would persist under the pen of Huig de Groot (1583– 1645), who despite having been considered a liberal humanist, “turned to a secular defense of slavery”.102 In the works of Grotius we witness a move toward modernity, whereby natural law loses its theological base, and is replaced with “the rule of reasonableness”, where natural reason is “based on philosophy, tradition and moral conviction”.103 Despite this, Davis notes “where Bodin would use the will of the sovereign to abolish slavery in the most expedient fashion, Grotius, who would subordinate all sovereign power to the rules of reason, saw slavery as harmonious with natural justice”.104

100 Gentili, n. 88, p. 332.  101 David Brion Davis, The Problem of Slavery in Western Culture, 1966, p. 111. 102 Id., p. 115. 103 Arthur Nussbaum, A Concise History of the Law of Nations, 1954, p. 109. 104 Brion Davis, n. 101, p. 114.



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In the annals of international law the fame of Grotius is intrinsically linked with the governance of the seas; those same seas upon which the slave trade was plied. During Grotius’ lifetime, The Netherlands would become, after Portugal, the most active State in the transatlantic slave trade. While it should be emphasised that only nine Dutch slave ships departed from The Netherlands by the time Grotius’ De iure bellis ac pacis appeared in 1625; during the last twenty-years of his life (1626–1645), onehundred and seven slave ships departed The Netherlands, embarking more than 29,000 slaves on the African Coast.105 Thus, while it is difficult to accept Davis’ assertion that the “prosperity of Holland was closely linked to the African trade” at the time of publication of Grotius’ works related to public international law; better is John Cairns’ reading of the impact of Grotius: “what Grotius had provided in his De iure bellis ac pacis was an ideological support for the institution of slavery that was becoming important to the economies of the maritime colonial powers”.106 And, it might be added, more so those States which sought to break the Iberian monopoly of what was now a truly global world. Grotius could not have been ignorant of the slave trade and this, along with his advocacy of the liberalisation of trade as sea through the breaking of the Iberian monopoly, fits hand in glove. It was as a challenge to the monopoly created by the union of Portugal to Spain under a single crown that saw Grotius first rise to prominence, publishing his 1608 Freedom of the Seas. That book was the product of a twenty-one year old Grotius, retained as an advocate by the Dutch East India Company, who argued successfully in a prize case dealing with the capture of a Portuguese merchantman in the Straits of Malacca. Grotius argued that it is an “unimpeachable axiom of the Law of Nations” that not only The Netherlands, but “every nation is free to travel to every other nation, and to trade with it”. In arguing that access to markets is a right, Grotius challenged the ‘interloper’ status of maritime Powers that had been excluded by the bulls of donations creating the monopoly for the Iberian Crown. Arguing against a monopoly on both sides of the line, Grotius concludes that “since both law and equity demand that trade with the East Indies be as free to us as to anyone else it follows that we are to maintain all hazards that freedom which is ours by nature, either by

105 See Voyages: The Trans-Atlantic Slave Trade Database. http://www.slavevoyages.org. 106 John Cairns, “Stoicism, Slavery and Law: Grotian Jurisprudence and its Reception”, Grotiana, Volume 22/23, 2001/2002, p. 201.

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coming to peace agreement with the Spaniards, or by concluding a treaty, or by continuing the war”.107 Turning now to Hugo Grotius’ The Laws of War and Peace, John Cairns notes, in the only piece to appear of Grotius in relation to issues of slavery, that one “of the most obvious features of the De iure bellis ac pacis is its relatively extensive discussion of the law of slavery”. He then follows this by adding:“this does not seem to have excited any particular attention among modern scholars”.108 As for his consideration of slavery, it is clear that Grotius had a view which was more expansive than his predecessors. Though he accepts “what was said by the [Roman] jurists, that slavery is contrary to nature”. He goes on to say, that it “is not in conflict with natural justice that slavery should have its origin in a human act, that is, should arise from a convention or a crime”. In essence, by convention or crime, he speaks about the possibility of individuals not only being enslaved but also selling themselves or their children into slavery. Beyond this, he also notes that with regard to the law of nations, “slavery has a somewhat larger place, both as regard persons and as regards effects”. The wider net of Grotius is that not only are those who surrender in war to be deemed slaves, but also “all without exception who have been captured in a formal pubic war become slaves [… even] those who by ill-fortune, as we have said, are caught in the enemy’s territory when was has suddenly broken out”.109 Furthermore, “not only do the prisoners of war themselves become slaves, but also their descendants for ever”. Where there is a limitation for Grotius is with regard to Christians, as they have, “as a whole agreed that those who are captured in a war which has arisen among themselves do not become slaves so as to be liable to be sold, constrained to labour and suffer the fate of slaves in other respects”. Instead, “among Christians the custom still prevails of keeping prisoners under guard until a ransom is paid, the amount of which is decided by the victor, unless some definite agreement has been made”.110 Having considered the person who may be enslaved, Grotius turns to the application of the law of nations with regard to the enslaved. This is quite straight forward: “the effects of this law are unlimited”. Grotius continues, quoting Seneca,

107 Hugo Grotius, Mare Liberum, 1608, 1916, p. 72. 108 Cairns, n. 106, p. 200. 109 Hugo Grotius, De Jure Bellis Ac Pacis Libri Tres, 1646, 1925, p. 690. 110 Id., p. 696.



of slavery and the law of nations43 there is nothing which a master is not permitted to do to his slave. There is no suffering which may not be inflicted with impunity upon such slaves, no action which they may not be ordered, of forced by torture, to do, in any way whatsoever; even brutality on the part of the master towards persons of servile status is unpunishable except in so far as municipal law sets a limit and a penalty for brutality”.111

So much for the liberal humanism of Grotius. As for this rationale for his approach to slavery, Grotius explains that all: these rights have been introduced by the law of nations, with which we are dealing, for no other reason that this: that the captors, mollified by so many advantages, might willingly refrain from recourse to the utmost degree of severity, in accordance with which they could have slain the captives, either immediately or after a delay, as we have said before. […] I have said ‘that they might willingly refrain’; for there is no suggestion of an agreement whereby they might be compelled to refrain, if you are considering this law of nations, but a method of persuading them by indicating the more advantageous course.112

Where slavery is concerned, Grotius is hardly a role-model to posterity. For the jurists thus far considered, from Legnano and Vitoria onwards, slavery is ever receding. It is part of jus gentium manifest in the enslavement of prisoners of war. Grotius goes against this trend opening the door wider in allowing for the possibility not only of people to sell themselves or their children into slavery but, with reference to jus gentium, the recourse to enslavement for not only prisoners of war but everybody on enemy territory and their progeny. In essence, a justification for the slave trade beyond Europe. Already by 1612 – that is: more than a decade before the publication of Grotius’ 1625 The Laws of War and Peace – The Netherlands had established a headquarters on the Gold Coast, which would by 1621 become Fort Nassau in Mori, located in modern-day Ghana. Further, the Dutch East India Company, in whose services Grotius had been, passed two ordinances, in 1622 and 1625, regulating the slave trade and the treatment of slaves.113 Further, from 1619 onwards, “slaves provided the main

 111 Id., p. 691. 112 Id. 113 See Ernest van den Boogaart, “The Dutch Participation in the Atlantic Slave Trade, 1596–1650”, Pieter Emmer (ed.), The Dutch in the Atlantic Economy, 1580–1880, 1998, p. 35. See also C.R. Boxer, The Dutch Seaborne Empire, 1600–1800, 1965, p. 239; in which he notes if “the Dutch entered the slave trade, whether East or West, with some hesitation and reluctance in the early 17th century, they soon stifled their scruples and made up for their late start”.

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labor force of the [Dutch East India Company’s] Asian headquarters in what is today Jakarta, Indonesia. Markus Vink, for one, points to 1,900 slaves being taken in 1622–1623 to the Company’ headquarters in Batavia from the east coast of India.114 Grotius’ writings on slavery could not have been indifferent to the ambitions of The Netherlands with regard to the liberalisation of world trade – which was in the midst of replacing the feudal-based monopoly of Portugal and Spain with a capitalist driven freemarket system. Grotius’ writings on slavery were in favour of, and gave voice to, the contemporary interest of the Dutch in developing and profiting its overseas slave-based economies and private interests in the transatlantic slave trade. This then challenges the assertion made by Benedict Kingsbury and Adam Roberts that “Grotius’ acceptance of slavery does not appear to stem from his consideration of issues concerning rela­ tions   between Europeans and non-Europeans or Christians and nonChristians”.115 Regardless of issues of motivation in Grotius’ writings, it should be emphasised that Grotius would later be utilised by others to good effect in justifying the African slave trade; though, as Cairns notes in the Scottish context, over time “the utility of Grotius as an apologist for slavery”, would give way to “more explicitly racist justifications”.116 A contemporary of Grotius, Richard Zouche (1590–1661), would, after John Budden, be the successor of the Regius Chair in Civil Law at Oxford to Gentili. In 1641, Zouche was appointed to the English High Court of Admiralty and is credited with having authored “the first manual on international law”.117 Though Zouche is not deemed to have undertaken 114 Markus Vink, “‘The World’s Oldest Trade’: Dutch Slavery and Slave Trade in the Indian Ocean in the Seventeenth Century”, Journal of World History, Volume 14, 2003, pp. 140 and 141. See also Seymour Drescher, Abolition: A History of Slavery an Antislavery, 2009, p. 68; where he writes “the VOC [re: the Dutch East India Company] apparently had no qualms about accepting slavery as a necessary condition of success in the Indian Ocean World. From the outset, the VOC considered the acquisition of slaves to be both feasible and desirable”. 115 Benedict Kingsbury and Adam Roberts, “Introduction: Grotian Thought in Inter­ national Relations”, Hedley Bull, Benedict Kingsbury, Adam Roberts (eds.), Hugo Grotius and International Relations, 1995, p. 46. 116 Cairns, n. 108, p. 242. 117 Amos Hershey, “Book Review – Juris et Judicii sive, Juris Inter Gentes, et Questionum de Eodem Explicatio”, American Journal of International Law, Volume 7, 1913, p. 422. With regard to jus inter gentes, see Thomas Holland, “Introduction”, Richard Zouche, Juris et Judicii sive, Juris Inter Gentes, et Questionum de Eodem Explicatio, 1650, Volume 1, 1911, p. xiii; where Holland provides a genealogy from jus gentium to international law, wherein he concludes: “But it was Jeremy Bentham who, in his ‘Principles of Morals and Legislation’, 1789, secured the general adoption of Zouche’s suggestion [i.e.: jus inter gentes], by coining the term ‘International Law”, as ‘calculated to express, in a more significant way, the branch of law which goes commonly under the name of the Law of Nations. Id.



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“a scientific development of doctrine” of international law and is judged “more a systematiser of doctrines than an innovator”, he has the distinction of having first spoken in terms of jus inter gentes rather than jus gentium.118 In general terms, Zouche is less verbose than Gentili and Grotius in his 1650 An Exposition of Fecial Law and Procedure, or of Law between Nations, and Questions concerning the Same. Where slavery is concerned, Zouche is concise: ‘The Law’, says Aristotle, ‘is a sort of general agreement where things captured in war become the property of the captors’; and the jurist Gaius says: ‘Things which are captured from the enemies immediately become property of the captors, with the result that even free men are reduced to slavery’. But as to persons captured in war, although by the ancient Law of Nations, which permitted them to be put to death, they were reduced to slavery, among Christians it has become the custom merely to detain them until the price of ransom has been paid, at the will of the captor, unless a fixed sum has been agreed upon.119

As such, the comments of Zouche are typical in that they speak to the application of the law with Christendom but are silent as to regulation beyond those limits, as none exists. Often seen as a watershed in international law through the ushering in of the States system, the Peace of Westphalia of 1648 did not have an effect on the approach to slavery within international law. A product of the postWestphalia era is the 1672 The Law of Nature and Nations by Samuel Pufendorf (1632–1694), the German jurist who received the first dedicated chair in international law at the University of Heidelberg. In 1670, he would move to take up the appointment of Professor of Jurisprudence at the newly established University of Lund. In his 1933 introduction to The Law of Nature and Nations, Walter Simons considered that Pufendorf “became the founder of the positivistic as well as the natural law school of international law. Probably we are justified in classifying him with the positivists, but Pufendorf is undoubtedly to be counted among the theorist of the law of nature”.120 While Pufendorf would later act as counsel for Frederick 118 Hershey, id., p. 422. 119 Zouche, n. 117, p. 39. Note that Zouche also discusses slavery in the context of individuals having been enslaved after they had bargained for their safety; but this was with regard to the specific incident of Emperor Charles V having imprisoned Landgrave after having given him safe conduct to negotiate. See p. 158. 120 Walter Simons, “Introduction”, Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, 1672, 1934, p. 15a. Note that Simons was Professor for International Law at the University of Leipzig, one-time President of the Weimer Republic, and head of the Germany delegation at Versailles.

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William, the Great Elector of Brandenburg; Pufendorf would, both before and after his appointment by the King of Sweden to the Chair in Lund in 1670, be in the service of that Crown. Like Grotius before him, Pufendorf would have been aware of – in this case – the interests of Sweden in the slave trade in the years leading to the publication of his 1672 The Law of Nature and Nations. This is so, as Sweden would have had presence on the Gold Coast as early as 1650 under the rubric of the Swedish Africa Company.121 While Pufendorf’s approach appears in large part to mediate between the views of Hobbes and Grotius with regard to considerations of slavery, we witness a reversion to an Aristotelian conception of human nature in which there is ascribed “the greatest differences between men”. Thus, some are so stupid that they do not observe, without the lead of others, what will be of use to them and are fitted to undertake mere physical tasks than such as required some mental perspicacity. Such, moreover, is their sluggishness that only under compulsion will they do anything well, nor do they know how to keep or extend to any advantage what they have acquired”.122

Slavery then is not against nature but allowed jus gentium: while slavery was not “immediately established by God” it was “approved by Him as established by men”.123 Having considered slavery in biblical and Roman law terms, he turns to Hobbes as a foil, critiquing his assertion that the natural state is that of war, though noting that “by the law of just warfare”, Hobbes is correct to say that slave result from the right to grant a life to the captured. For Pufendorf, slavery is the equivalent of a contract, a pact wherein the enslaved are given their lives in exchange for “the promise of service and obedience”.124 Pufendorf, then goes on to revive and enumerate in some detail a number of elements of the Roman law of slavery touching on the rights over property of those captured in war, the offspring of slaves, and the means of attaining freedom.125 121 Daniel Mannix and Malcolm Cowley, Black Cargoes; A History of the Atlantic Slave Trade 1518–1865, 1964, (2004 ed), p. 4. See also Albert van Dantzig, Forts and Castles of Ghana, 1980, p. 23. 122 Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, 1672, 1934, p. 934. With regard to Pufendorf taking up a middle position between Grotius and Hobbes, see Coleman Phillipson, “The Great Jurist of the World. XIV. Samuel Pufendorf”, Journal of the Society of Comparative Legislation, Volume 12, 1911, pp. 242. 123 Id., p. 935. 124 Id., pp. 141–142. 125 Note also Samuel Pufendorf, Elementorum Jurisprudenctia Universalsi Libri Duo, 1660, 1931, at p.15; where Pufendorf expresses the same Aristotelian understanding of slavery.



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Before venturing into the Eighteenth Century – when the transatlantic slave trade would hit it apogee, shipping more than five millions slaves to the New World – consideration turns to two further, this time late-Seventeenth Century authors: Samuel Rachel (1628–1691) and Johann Wolfgang Textor (1638–1701) whose works appeared in the Classics of International Law series. Rachel, was the first holder of a Chair in International Law at the University of Kiel though he spent much of his working life as a diplomat in the service of the Duke of Schleswig-Holstein. His 1676 Dissertations on the Law of Nature and of Nations need not detainee us too long, as its originality is brought into question by Nys, but more so – for our purposes – it has very little to say about slavery. Rachel writes that those who surrender in “war, or accept terms of slavery, or are captured, become slaves of the victors by the Law of Nations” as do those who are born of such slaves.126 While noting that slavery is the result of the sparing of the life of an individual capture in war, Rachel notes that “this rule of the Law of Nations about prisoners has not always been received, nor among all nations. Certainly among Christian peoples it has long since fallen into desuetude, and we have the evidence […] that the Mahomedans adopt the same humane attitude”.127 In much the same manner Johann Wolfgang Textor – the great-great grandfather of Goethe was the first holder of the Chair in Jurisprudence at the University of Heidelberg – adds little to our consideration of slavery in his 1680 Synopsis of the Law of Nations. Ludwig von Bar, acknowledges in the introduction to Synopsis that Textor is prone to confuse “law and morality” and notes that Textor’s work, based as it is on private law principles, “does not do justice to the real needs and relations of the Law of Nations”.128 Where slavery is concerned, Textor writes that “it has become a rule of the common Law of Nations that it is just and right to capture the enemy and reduce them to slavery”, their lives being exchanged for servitude. As Textor deemed war between Christians to be milder, he notes that it became a rule “about three hundred years ago”, that captives be “detained until either ransom was forthcoming or there was an exchange of prisoners”.129 That said, enslavement is “not yet obsolete in the wars of the Turks and of other barbarians” because “they reduce men of our side whom they 126 Samuel Rachel, De Jure Naturae et Gentium Dissertationes, 1676, 1916, p. 187. 127 Id., p. 187. Citations in the original excluded. 128 Ludwig von Bar, “Introduction”, Johann Wolfgang Textor, Synopsis Juris Gentium, 1680, 1916, p. 14a. 129 Textor, id., p. 192.

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capture into rigorous slavery” and as a result, Christians reciprocate. While Textor raises the spectre that all wars by barbarians against Christians are “by a universal rule […] unjust” and thus cannot create of Christians slaves, he goes on to say that the Law of Nations (re: contemporary jus in bello) remains in force even where the war is deemed unjust and so allows for the enslavement of Christians.130 Turning now to the Eighteenth Century by which time the likes of Britain, France and The Netherlands had effectively broken the Iberian monopoly ‘beyond the line’; have established colonies and outposts in the Africa, Asia and the New World. Having erased the ‘line’, allowing for freedom of commerce, European Powers maintained the legal fiction where human freedom was concerned.131 Despite the breaking of the Iberian monopoly, the assientos de negros not only remained important well into the first half of the Eighteenth Century, it was amalgamated into one Assiento, rendered by treaty, and deemed of such importance that it was worthy of war. First granted to France, as a result of the Treaty of Utrecht of 1713, and was later passed to Great Britain. That said, by the mid-Eighteenth Century the Assiento had lost its importance, reverting back to Spain by way of the treaties of Aix-la-Chapelle (1748) and Madrid (1750). By the first half of the Eighteenth Century, the transatlantic slave trade was seen as an integral part of maritime commerce. During this fifty-year period, more than thirty-seven hundred slave voyages were undertaken by British flagged ships; more than two thousand by Portu­ guese ships; more than eleven hundred by France; two hundred and fortyfour by the United States of America; and fifty-one by Denmark and Baltic States.132 From our perspective, the first half of the Eighteenth Century is marked by the publication of Bynkershoek’s 1737 Questions of Public Law, in that there is, for the first time, an acknowledgement of slavery beyond Europe. Cornelius van Bynkershoek’s (1673–1743), who sat on the Supreme Court of Holland, Zealand, and West Friesland for nearly forty years, nearly half of

130 Id., p. 193. 131 Note Emmerich de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite aux Affairs des Nations et des Souverains, 1758, 1916, p. 86 where he writes “whenever the public laws or treaties make no distinction between them, all regulations affecting the mother country should be extended equally to the colonies”; hence the need for the establishment of the Code Noir to make a distinction with regard to slavery in French colonies. 132 See Voyages: The Trans-Atlantic Slave Trade Database. http://www.slavevoyages.org.



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which as its President, does well to enlighten his readers as to the contemporary law of nations with regard to slavery, noting that “to the right of slaying the captured enemy there succeeded the right of making them slaves, which was formerly exercised for a long period. But that custom has fallen into disuse among nations”.133 For Bynkershoek prisoners of war are to be held for ransom, but not utilised in servitude during their detention. Further, at the end of hostilities, prisoners may be redeemed with regard to their rank, or exchanged. These considerations led Bynkershoek to conclude that “slavery has now generally fallen into disuse among Christians”. While this is so, others may be enslaved. Here Bynkershoek speaks of the ability to enslave against “those who exercise the right against us”, pointing to the example of the Barbary Coast and the willingness of the Dutch to “sell as slaves to the Spaniards the people of Algiers, Tunis, and Tripoli” captured at sea. Seeking then to distance himself and the Dutch from the Spanish willingness to use slaves on its territory, he writes “the Dutch do not use slaves”, though he continues “except in Asia, Africa and America”. From this pronouncement then we are to understand that for Bynkershoek the law of nations precludes the enslavement of Christians, but allows for enslavement in terms of reciprocity as against Islam; while the law being silent in Asia, Africa, and the New World. Between the appearance of Bynkershoek’s 1737 Questions of Public Law and the next in the Carnegie Foundation Classics of International Law Series, Emmerich de Vattel’s 1758 The Law of Nations, would see the publication of a track which included a critique of the slave trade and slavery which would resonate not only through the Eighteenth Century but beyond. In his 1748 The Spirits of Laws and without naming him, Montesquieu challenges the three instances which Grotius put forward as means for enslavement, that is, as captives in war, and through the sale of oneself and the selling of one’s children. Turning then to the fate of Africans, Montesquieu writes with irony that if he had to justify “the right we had of making Negros slaves, here is what I would say”: The peoples of Europe, having exterminated those of America, had to make slaves of those of Africa in order to use them to clear so much land.  Sugar would be too expensive if the plant producing it were not cultivated by slaves.  Those concerned are black from head to toe, and they have such flat noses that it is almost impossible to feel sorry for them. […] 133 Cornelius van Bynkershoek, Quaestionum Juris Publici Libri Duo, 1737, 1930, pp. 27 and 28.

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chapter one  Petty spirits exaggerate too much the injustice done to Africans. For, if it were as they say, would it not have occurred to the princes of Europe, who make so many useless agreements with one another, to make a general one in favour of mercy and pity?134

Despite the acknowledgement by Moses Finley that Montesquieu’s contribution “constituted the most influential intellectual attack on slavery written in the eighteenth century”; such influence, it might be said, was not properly felt where States or international jurists were concerned.135 Emmerich de Vattel (1714–1767) is a case in point. Despite prizing liberty above all else, the Swiss jurist who spent much of his working life in the diplomatic service of both Saxony and King Augustine III’s Poland, maintained a blind spot where the wholesale enslavement of Africans and others was concerned; despite utilising ‘slavery’ in the metaphorical sense of being governed by despotic rulers.136 Thus, in considering the conquest of a State, Vattel distances himself from the “monstrous principle”, that conquest allows the victor to “treat a States as conquered territory; and thus […] derive one of the justifications for despotic government”. To which Vattel responds: Let us disregard such persons who treat men as if they were chattels or beasts of burden, and who subject them to the ownership of another man, and let us argue the case on principles which are in accord with reason and humane sentiments.137

Despite this and while Vattel acknowledges that prisoners of war are to be held captive “either to prevent them from rejoining the enemy or to obtain from their sovereign a just satisfaction as a price for liberty”; he does in fact allow for enslavement. Vattel responds to a rhetorical question regarding whether prisoners of war may be enslaved by replying that yes, “on occasions when it is justifiable to kill them because they have rendered themselves personally guilty of some crime deserving death”. Emmerich de Vattel sees in slavery a duty to be fulfilled, a gift to be accepted for the 134 Baron de Montesquieu, The Spirit of the Laws, 1748 (1989 edition, Cohler et als, eds.) p. 88. 135 Moses Finley, Ancient Slavery and Modern Ideology, 1980 (1998 edition, Shaw, ed.) p. 88. 136 With regard to liberty, consider the following where Vattel looks to those who have written on the natural law to say that “liberty and independence belong to man by his very nature, and that they can not be taken from him without his consent”. Emmerich de Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliqués à la Conduite aux Affairs des Nations et des Souverains, 1758, 1916, p. 3. 137 Id., p. 310. Emphasis in the original.



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favour of having spared one’s life. Though, this is where his considerations of slavery stops, as, for the first time in the Classics in International Law Series, a sense of disquiet about the slave trade emerges. Vattel states with regard to the duties of a slave, that he can add more to what has already been written, but to note that slavery is a “reproach to mankind” which “has happily been banished from Europe”.138 Though Christian von Wolff’s 1764 The Law of Nations Treated according to A Scientific Method appeared after Vattel’s 1758 The Law of Nations, Vattel was, to a large extent, a disciple of Wolff. As Albert de Lapradelle writes with regard to Vattel: “Perhaps he would never have written on the law of nations if Christian Frederick von Wolff (1679–1754) had not preceded him”. It might be added here that despite Wolff’s The Law of Nations appearing in 1764, his understanding of international law would have been expressed in print as early as 1749, that is: in good time for Vattel to engage with it. Christian von Wolff, who rose to become the Chancellor of the University of Halle, considered slavery both in the context of those captured in war, but also with regard to ‘slave-kingdoms’. As for captives, they “do not become slaves by the law of nature”, though they may be enslaved “for an offence which deserves that penalty”.139 Wolff considers that captives were not to be put to death, instead they were to be detained so as not to interfere with the war effort and then released upon termination of hostilities. Where so-called slave-kingdoms are concerned, this may be understood as kingdoms beyond Europe, Wolff first accepts that to European victors go the spoils: “a victor has acquired sovereignty over the vanquished without any stipulation”. He then goes on to say, in “a slavekingdom all the subjects are reduced to personal servitude”, in cases of military occupation within the context of a just war.140 While Wolff is the last of scholars of the Classics in International Law Series who dealt with slavery before the advent of the international abolitionist movement, it is worth considering one further author, Joseph Mathias Gérard de Rayneval (1736–1812), who was the Under-Secretary of

138 Id., p. 286. Though see his further discussions with regard to escape and postliminium at pp. 316–317. 139 Christian von Wolff, Jus Gentium Methodo Scientifica Pertractatum, 1764, 1934, pp. 420–421. Note that for Frederich von Martens, Wolff’s approach to international law was one which was “not satisfied with the abstract principles of natural law, but also takes into consideration positive elements, agreements, and customs. The system of the author shows that he strove for an organic, strictly, scientific exposition of international law. See Otfried Nippold, “Introduction”, Wolff, id., p. xxxix. 140 Wolff, id., 448–449.

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State to the Comte de Vergennes during the reign of Louis XVI (re: the equivalent of the legal advisor of the foreign office), and published the second edition of his Institutions de droit de la nature et des gens in 1803. The date is relevant, as Rayneval’s Institutions is the last notable international law text to be published before the 1814–1815 Congress of Vienna, which was a watershed; as the international abolitionist movement with regard to the Atlantic slave trade started from here, in earnest. Rayneval acknowledges that at the time there existed a controversy as to whether natural law admitted slavery or did not. He noted that if we listen to the likes of Montesquieu, we would “surely reject the various idea of servitude, but the question is not to be answered on sentiment alone but with recourse to reason, law and even positive law”. He then explained that asked to consider whether a person by nature “can dispose of their liberty for an indefinite time”.141 Rayneval, having determined that the only natural right that exists is self-preservation, deemed that a person can give themselves into slavery. While considering liberty to be the greatest gift of humanity and that humans are not to be enslaved against their will, he pointed to the sole possible exception: that of slavery resulting from being taken as a prisoner of war. That said, later on in his Institutions Rayneval contradicts himself saying that prisoners of war cannot be reduced to slavery as this would go against the fundamental principle regarding the conduct of war. That principle, which moves us ever closer to a contemporary understanding of the fate of prisoners of war, is in line with what would emerge sixty-years later in the 1868 Declaration of St. Petersburg: “That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”. The relevance of this principle with regard to prisoners, Rayneval tells us, is that they must be taken out of harm’s way or returned to the enemy (through ransom and/or on parole), and treated humanely.142 While setting out various obligations towards prisoners of war, Rayneval notes that at the conclusion of hostilities, their repatriation is to form part of a peace treaty. The apparent contradiction with regard to the legality of enslaving prisoners of war, as set out in Rayneval’s text is to be settled by reference to the distinction between the nascent laws of war which are deemed to be applicable only in Christendom; and slavery beyond so-called ‘civilised 141 Joseph-Mathias Gérard de Rayneval, Institutions de droit de la nature et des gens, 1803, p. 48. 142 Id., p. 229.



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nations’. Rayneval makes this plain, through a challenge to the expansive application of slavery put forward by Grotius, saying that his understanding of enslavement drawn from Roman Law, but in so doing fails to take into consideration that amongst the Romans, “slavery exits beside liberty; and that amongst such States where slavery was authorised by law, it was natural that it be applicable to prisoners”. By contrast, Rayneval, writing in 1803, states that “today, servitude is nearly extinct in Europe; and where it is not, as in Russia and amongst the Ottomans, they too now treat their prisoners of war like the rest of Europe”.143 With regard to enslavement of a civilised nation, Rayneval rejects the possibility that a people (un peuple entier) can consent to submitting to servitude as being impossible, though the same question with regard to Africa is “more difficult to answer”. This is so as there are “so many moral and political elements to consider”. The philanthropist plead the cause of liberty with a sentiment, a passion which honours humanity; the ship owners, the plantation owners, plead that of slavery; and through this conflict is presented our own joys, our habits, the national interest which touches on our culture and the prosperity of the colonies.

With this, Rayneval declines to “consider the question, much less answer it, as it belongs more to prudence and to political morality than to jus gentium (droit des gens) and the constituting principles of States”. To bring the point home of raison d’état, Rayneval adds a footnote which points to the 1686 British petition to the Dey of Algiers calling for the end of piracy and the freeing the Christian slaves. The response from the Divan was “that la doctrine, that pillage and enslavement of Christians is unjust is at least problematic, and the interest of the State is clear; as a result, the petition is rejected”.144 Conclusion Historically, slavery has been justified through international law. But for the last two-hundred years, slavery was not only legal, its legality hinged on jus gentium, which allowed for enslavement of prisoners of war as a substitution for death. It is striking how little to no intellectual progress transpired in the law from Aristotle to Wolff where slavery is concerned. It should be emphasised that while Aristotle’s reputation within the 143 Id., pp. cxvi and cxvii. 144 Id., p. 52 and xlii.

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Canon of Western Civilisation remains preeminent, his justification for slavery remained the foundation of the institution in law for more than twothousand years. The contemporary philosopher Peter Singer, sets out an imminent critique using Aristotle and slavery as his example, noting: Philosophy ought to question the basic assumptions of the age. Thinking through, critically and carefully, what most of us take for granted is, I believe, the chief task of philosophy, and the task that makes philosophy a worthwhile activity. Regrettably, philosophy does not always live up to its historical role. Aristotle’s defense of slavery will always stand as a reminder that philosophers are human beings and are subject to all the preconceptions of the society to which they belong. Sometimes they succeed in breaking free of the prevailing ideology; more often they become its most sophisticated defenders.145

It is with the over-riding influence of Aristotle that the ‘canon’ of international law, as set out in large part through the Carnegie Foundation’s Classics in International Law Series, is grounded where issues of slavery are concerned. In considering the Classics in International Law Series, it becomes evident that first, an evolution transpired in Christian wars, with regard to combatants captured. Their lot improved, as the continuum moved from death, through slavery, to ransom, and finally to being held until exchanged at the end of hostilities. Beyond the ‘civilised nations’ of Europe, conflict with barbarians, be they pagans or Muslims, allowed for the enslavement of not only combatants, but for the liberal humanist like Grotius, the whole population and their progeny. While the transatlantic slave trade looms at the forefront of contemporary consciousness, the enslavement of the indigenous population of the New Worlds as considered by Vitoria seems out of place. Yet, what emerges from the evolution of the Spanish Empire is a clear distinction with regard to the applicability of a nascent international law. We see this in the focus of jurists on international law as it is applicable in Europe. Despite this, and as the transatlantic slave trade and European colonialism grew in importance, so too did the willingness of international jurists to acknowledge the possibility of enslavement beyond Christendom. This point can be brought home by revisiting the consideration Ayala and Belli; as they write in the context of land wars in Europe in an era when transatlantic slave trade is in its infancy. For these Sixteenth Century writers, the ability to enslave a person has, for all intents and purposes, come to an end.

145 Peter Singer, Animal Liberation, 1995, p. 236.



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Juxtapose this with the writings of Grotius or Vattel, as each has much to say about slavery, despite it having been banished from Europe generations previously. The underlying pretext – the elephant in the room if you wish – is the transatlantic slave trade and the use of slave labour in European colonies. It is only when these elements are brought into the equation that the considerations of jurists of the Seventeenth and Eighteenth Centuries make sense, though it might be emphasised that as we move closer to the Nineteenth Century, there is clearly disquiet in the voices of jurists as to the morality of slave trade. Whether this angst is expressed overtly or not; a clear diminution of natural law justifications is paralleled by an increasing reference to positive law as being the basis upon which slavery is deemed legal jus gentium. As we move into the Nineteenth Century in the next Chapter, the age of the abolition of the slave trade at sea is upon us. Once the intellectual battle to end the slave trade is won, the foundations of slavery – and indeed forced labour, servitude and other types of human exploitation – are poised to be questioned. Where the slave trade is concerned, it takes States the better part of the Nineteenth Century to agree to the modalities of suppressing the trade at sea. This inability to reach agreement hinged on Grotius; but not with regard to anything he had to say about slavery.

CHAPTER TWO

THE SLAVE TRADE

Having considered slavery and its place within the history of international law, this Chapter follows a different course, one which is the emphasis of this book: the move towards its abolition. Like the chapters that follow, this Chapter considers one, specific, instance of human exploitation and draws out its parameters as they have evolved in international law. The focus on the slave trade bridges the gap between time immemorial when slavery was legal and the contemporary period when it has been made illegal under international law. The fundamental importance of the aboli­ tion and suppression of the slave trade at sea during the Nineteenth Century in setting the foundation for the illegality of various forms of human exploitation during the Twentieth Century cannot be overstated. That said, the provisions governing the suppression of the slave trade as found in international law today are rather limited, though behind them lie a very rich history worth recounting. That history is predicated on the fact that no other issue during the Nineteenth Century was more fundamental to the evolution of interna­ tional law than the slave trade at sea. This statement is not mere hyper­ bole  as, in the Age of Sail, little else mandated legal intercourse amongst European Powers, newly independent States of the Western Hemisphere and emerging ‘civilised nations’ of Africa and Asia. In this context, the Nineteenth-Century law of the sea and the centrality of the slave trade to its evolution played out as the very essence of the seas – the freedom of the sea – became a battleground of law. That diplomatic warfare pitted the United Kingdom, which had emerged from the Napoleonic Wars as the unrivalled sea power, seeking to carry over a wartime right to visit ships on the high seas to peacetime as a means of suppressing the slave trade; and lesser maritime powers that demanded respect for the Grotian notion of the freedom of the seas and an unfettered right of their merchant ships to ply the oceans blue. While attempts to establish a universal right to visit ships at sea to sup­ press the slave trade would only truly be successful in 1958, the move

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towards its establishment in international law starts at Vienna in 1814 and leads to war, to attacks on ports and ships of non-belligerent States, to the sinking of slavers and the deaths of many a sailor and hundred score more of their human cargo. The move to establish a right to visit to suppress the slave trade would be considered during the era of the Concert of Europe; would be central to the convening of the 1890 Brussels Conference; it would make up part of the settlement of the First World War; be consid­ ered on more than one occasion during both the negotiations of the 1926 Slavery Convention and the 1956 Supplementary Convention; yet would only be accepted universally through its inclusions first in the 1958 Convention on the High Seas and later by its confirmation as part of the 1982 United Nations Convention on Law of the Sea. Parallel to the move, over a century and a half, to gain a right to visit to suppress to slave trade at sea was the limitations which this notion of a ‘right to visit’ would accrue over time. From attempts to gain universal jurisdiction to suppress the slave trade by way of a right to visit, to search, to confiscate, to detain, and to try – in essence to assimilate – the slave trade to piracy as hostis humani generis; the notion of a right to visit would become ever more circumscribed, as a result of an unwillingness, by a number, of States to allow for a policing of the seas or undue interference with their maritime commerce. However, this did not stop the United Kingdom from propos­ ing on a recurring basis, for more than a hundred years, the assimilation of the slave trade to piracy. While the United Kingdom continued to be unsuccessful in its assimilationist venture, limits to the right to visit would manifest themselves early on by curtailing an expansive understanding of the right to visit by both its application to a specific geographical zone and to ‘native’ vessels; while being narrowed ratione materiae to a more strict right to visit and search decoupled from other possible rights (such as con­ fiscation, detention, or trying), with the purpose of visitation ultimately being simply to verify the nationality of a ship at sea suspected of being involved in the slave trade. Towards Abolition of the Slave Trade During the consideration in the previous Chapter, only the voices of Bodin and Montesquieu were heard in opposition to slavery. Yet during the Eighteenth Century a movement emerged in the United Kingdom which, though in its infancy could easily be dismissed, would grow beyond indi­ vidual intellectuals, to include minority religious sects (principally the



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Society of Friends: the Quakers) that laid the foundation for a populist Nineteenth-Century abolitionist movement which would have ramifica­ tions beyond a tiny island in the sea, by touching the four corners of the world.1 Spurred on by the ideas of the American and French revolutions and the increases in literacy and leisure time brought about by the Industrial Revolution, the British abolitionist movement would be allowed to become a major factor in domestic politics as it “reflected the needs and values of the emerging capitalist order”, while allowing successive govern­ ments to benefit from this constituency in carrying out British foreign policy.2 While successive British governments could maintain the moral high ground as against those States which continued to allow their ships to be involved in the slave trade, much more was at stake. Great Britain, hav­ ing lost its greatest colonial asset in 1783 as a result of the American Revolution, no longer needed to support the New World’s slave-based economy. Likewise, the mercantile economy which had been in existence since the late Fifteenth Century was in the midst of being replaced by a capitalist order, wherein the United Kingdom was best placed to prosper (and dominate) through its advocacy of free trade and the supremacy of its Royal Navy.3 Thus, as a result of these factors, the United Kingdom went from being the main slaving nation from 1640; to outlawing the trade in 1807 and being the lead proponent of its international suppression. There remains much academic controversy as to why the United Kingdom sought to abolish the slave trade, and there is as yet no scholarly consensus on the matter. Where historians do appear to agree is that the move to abolish the slave trade was brought about as a result of consider­ ations of economic, philanthropic, and of a populist, nature. Professor Gad Heuman does well to summarize the historiographic debates in the Oxford History of the British Empire where he notes that until “the 1940s there was a general consensus among historians about the abolition of 1 See for instance Chapter 10 entitled “Religious Sources of Antislavery Thought: Quakers and the Sectarian Tradition” in David Brion Davis, The Problem of Slavery in Western Culture, 1966, pp. 291–332; and Christopher Leslie Brown, Moral Capital; Foundations of British Abolitionism, 2006. 2 Gab Heuman, “Slavery, The Slave Trade, and Abolition”, Robin Winks (ed.) Oxford History of the British Empire, Vol. 5 (Historiography), 1999, p. 324. For a similar co-opting by States of popular sentiment, consider the evolution of dispute settlement which transpired at the turn of the Twentieth Century in Jean Allain, A Century of International Adjudication: The Rule of Law and its Limits, 2000, pp. 6–35. 3 See Christopher Lloyd, The Navy and the Slave Trade: Suppression of African Slave Trade in the Nineteenth Century, 1968, p. xi., where he writes: “Throughout the Nineteenth Century, the Navy was the chief instrument of preserving the Pax Britannica”.

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slavery in the Empire” where it was “maintained that the British abolished slavery largely because of the strength of religious feelings and humani­ tarianism”. This view, however, was challenged by Eric Williams’ 1944 Capitalism and Slavery, in which he asserts that the slave trade was abol­ ished because it had become unprofitable, not because it had become morally wrong and unpalatable to the British. This thesis, Heuman writes, “in turn became the new orthodoxy”. While this perspective has been largely rejected, it has not been completely displaced.4 Heuman notes that more recently, emphasis has been on public pressure which moved the United Kingdom towards abolishment of the slave trade. He quotes James Walvin as considering “anti-slavery as ‘the most popular political issue in these years’ [1789–1838]”.5 Finally, one would be remiss for not mentioning the resistance of slaves themselves which both increased the costs of participating in the trade, making it less profitable while placing New World European settlers in a heightened state of anxiety over their safety in a situation where Africans made up the vast majority of the populations in the Western Hemisphere and were given the example of a successful revolt, then revolution, in St. Domingue.6 While the legal history of the suppression of the slave trade in the Nineteenth Century revolves around the ‘Atlantic Slave Trade’, that cen­ tury started – and ended – with a focus on other slave trades. In 1815 the United States of America equipped and sent its first-ever naval squadron to liberate American merchant seamen held for ransom by Algiers.7 This was a bold move by a young State, yet it was a decisive blow, signalling the end of the practice by the Barbary States (Algiers, Tunis and Tripoli) of socalled ‘white slavery’: the capture of sailors of various nations who where enslaved then held for payment by pirates under the protection of these North African States. The American lead was then followed by European powers which, for a long time, had been paying protection money in 4 Considering Eric Williams 1944 Capitalism and Slavery, Eric Stokes states that the “argument that British abolition, far from being an act of pure disinterested benevolence, fell into line with the country’s economic interests and with the change from commercial to industrial capitalism has never been fully countered”. See Foreword to Roger Anstey, The Atlantic Slave Trade and British Abolition 1760–1810, 1975, p. xi. 5 Gab Heuman, “Slavery, The Slave Trade, and Abolition”, Robin Winks (ed.) Oxford History of the British Empire, Vol. 5 (Historiography), 1999, p. 322- 324. Emphasis in the original. 6 See David Richardson, “Shipboard Revolts, African Authority, and the Atlantic Slave Trade”, William and Mary Quarterly, Vol. 58, 2001, pp. 69–92. 7 For American actions see: Frederick Leiner, The End of Barbary Terror: America’s 1815 War against the Pirates of North Africa, 2006.



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exchange for assurances that their nationals would not be enslaved. In a like-manner to the United States action, the Britain Royal Navy with the assistance of a Dutch squadron bombarded Algiers destroying its navy; then demanded and received a treaty which mandated “the abolition for­ ever of Christian Slavery”.8 This was followed by an extraction of “a prom­ ise from the Beys of Tunis and Tripoli that they would not, for the future, make slaves of prisoners of war, but would conform to the practice of European Nations”.9 Thus ended the slave trade at sea anchored on the Barbary Coast. Before turning our attention to the transatlantic slave trade – where the international law governing the slave trade at sea was forged – mention should be made of the slave trade which was the focus of suppression during the latter part of the Nineteenth Century: the so-called ‘Oriental Slave Trade’. This trade was an older, more ingrained, slave trade which existed for more than a millennium before it was suppressed in the late Nineteenth and early Twentieth Century. This trade, like that of the Atlantic, focused on the enslavement of inhabitants of sub-Saharan Africa. The main means of transportation was not ocean-going caravels, but camel caravans crossing the North African dessert and small dhows sailing the Indian Ocean, the Persian Gulf, and the Red Sea. It is estimated that this trade involved seven million slaves, of which three million were trans­ ported during the Nineteenth Century.10 The suppression of this trade was a rather low priority for the United Kingdom during the first half of the Nineteenth Century as, for instance, only two ships could be spared for east coast patrols of Africa during Napoleon’s stay on St. Helena (1815–1821), and as late as 1854, the Royal Navy “had only three vessels to deploy between Delagoa Bay to Zanzibar, over 1300 miles of coastline”.11 Over the Century, the Oriental Slave Trade was funnelled into one primary outlet on the east coast of Africa, the island of Zanzibar (which, embarrassingly, was under British protection). The Sultan of Zanzibar had, in 1843, negotiated a treaty with the United Kingdom that allowed for the free passage of Arab dhows along the African   8 See Robert Phillimore, Commentaries upon International Law, 1879, p. 320.   9 Id., p. 319. 10 Id., See also R Austen, “The Mediterranean Islamic Slave Trade out of Africa: A Tentative Census” in P Manning (ed), Slave Trades, 1500–1800; Globalization of Forced Labour, 1996, p. 1–36. 11 See R.W. Beachey, The Slave Trade of Eastern Africa, 1976, p. 20; where he continues: “and this number was reduced to none, when the Dee was laid up for refit, and the Crecian and Dart were recalled to the Cape”.

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and Arabian coast to Oman, thus excluding this traffic from visits to suppress the slave trade.12 In 1873, as the “provisions of the existing Treaties having proved ineffectual for preventing the export of slaves from the ter­ ritories of the Sultan of Zanzibar, Her Majesty the Queen and His Highness the Sultan above-named, agreed that from this date the export of slaves from the coast of the mainland of Africa, whether destined for transport from one part of the Sultan’s dominions to another [re: Oman] or for con­ veyance to foreign parts, shall entirely cease.” The 1873 Treaty further stip­ ulated that “any vessel engaged in the transport or conveyance of slaves after this date shall be liable to seizure and condemnation” by the British Navy.13 In all likelihood, the Treaty itself would not have been concluded but for the fact that the British East African Squadron had blockaded Kilwa on mainland Africa, the transit port to Zanzibar in early 1873. While Christopher Lloyd states that by 1883 that wholesale trade had ended, the issue of slave trading in the Indian Ocean, the Red Sea, and the Persian Gulf did persist, although on a much more limited scale and, as the Permanent Court of Arbitration would attest, often under French flag. Returning now to the Atlantic Slave Trade, which spanned from 1514 until 1866, it formed part of a well established international market con­ necting Africa, the Americas, Asia, and Europe.14 In contrast to common perceptions that Europeans raided the African coast to gain slaves, traders

12 See Lloyd, n. 3, p. 234. An Arab dhow was been described by Captain, later Commander, Phillip Colomb as follows: “If a pear be sharpened at the thin end, and then cut in half longitudinally, two models will have been made resembling in all essential respects the ordinarily slave dhow”. See R.W. Beachey, The Slave Trade of Eastern Africa, 1976, p. 68. 13 Article 1, Treaty between Great Britain and Zanzibar for the Suppression of the Slave Trade, 5 June 1873, British and Foreign State Papers, Volume 63, p. 174. 14 For the dates Voyages: The Trans-Atlantic Slave Trade Database. http://www .slavevoyages.org. With regard to the global market consider Herbert Klein, The Atlantic Slave Trade, 1999, where he writes, at page 101–102: […] the Atlantic Slave Trade was one of the more complex of international trades that existed in the modern period. It intimately tied cowry and textile exports from Asia to African imports and involved massive movements of people across large land masses and great oceans. It tied up European capital, ships, and crews for long peri­ ods of time and involved very complex credit arrangements for the sale of American crops in European markets. Thus, while an actual ‘triangle trade’ may not have existed as a significant development for ships in the trade, the economic ties between Asia, Europe, Africa and America clearly involved a web of relationships that spanned the globe. At the heart of this system was a Europe committed to consuming American plantations crops at an ever expanding rate, crops that ranged from luxu­ ries to basic necessities within the European population.



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tapped into a market which already existed. However, these European traders facilitated the expansion of the slave trade not only by creating an ever-growing demand, but also by supporting the commercial and politi­ cal ambitions of local African elite. These ambitions – which for instance would lead to the creation of the Ashanti and Dahomey Kingdoms in West Africa – transpired through warfare which, while producing territorial gains, also created as a by-product, the main source of slaves for the Atlantic trade. Captured enemies were often forced to walk from the inte­ rior to the west coast of Africa, where those that survived would be offered for sale in places such as St. Louis (in modern day Senegal), Elmina and Cape Coast (Ghana), on the so-called ‘Slave Coast’, must notoriously in Ouidah (Benin), and further south in Luanda (Angola). David Eltis has noted that there were in fact two Atlantic slave trades, one north of the Equator which was triangular as between Europe, Africa and the New World, and one south of the Equator which was simply to and fro as between Portuguese Angola and Mozambique, and Brazil; with Angola being “even more important source of slaves than the recent literature credits” accounting for more nearly forty-five percent of all known slaves shiped to the New World.15 A decades long project started in the late 1980s, under the auspices of the W.E.B. DuBois Institute of Harvard University has brought together data on “perhaps 70 percent of all slaving voyages” and provides much well-grounded insight into the various elements of the trade.16 From this data, it can be said that during the period in which the Atlantic Slave Trade persisted, more than twelve and a half million men, women, and children, are known to have been forcefully enslaved and taken from Africa. Of these, approximately two million did not reach the Americas, having died in transit. It can also be said, with certainty that the United Kingdom and Portugal accounted for more than seventy percent of the Atlantic trade. “Broadly”, Eltis notes, in summarizing the data, “the Portuguese domi­ nated before 1640 and after 1807, with the British displacing them in the intervening period”.17 In the New World, with the exception of “the mete­ oric rise and fall of St. Domingue, the primary receiving regions were

15 David Eltis, “The Volume and Structures of the Transatlantic Slave Trade: A Reassessment”, William and Mary Quarterly, Vol. 58, 2001, p. 41. 16 David Brion Davis and Robert Forbes, “Foreword”, William and Mary Quarterly, Vol. 58, 2001, p. 7. 17 Eltis, n. 15, p. 20.

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Brazil, the British Caribbean and, briefly, in the Nineteenth Century: Cuba”.18 Abolition of the Slave Trade in the Nineteenth Century The issue of the abolition of the transatlantic slave trade was first broached internationally at the Congress of Vienna where the United Kingdom pro­ posed that the trade be outlawed within a three-year period. However, this was deemed to go too far, instead the Powers set out platitudes, agreeing in their 1815 Declaration that they wished to “bring to an end a scourge which has for a long time desolated Africa, degraded Europe, and afflicted humanity”. The Powers declared that they “consider the universal aboli­ tion of the trade in Negroes to be particularly worthy of their attention” and they pledged to use “all zealousness and perseverance which is required of such a grand and beautiful cause”.19 While it would take sev­ enty years for these pious words to become binding obligations related to the slave trade at sea, the 1815 Declaration has the first salvo, at the State level, of the international abolitionist movement. Before turning to consider the legal issues surrounding the abolition of the slave trade at sea, it might be worth setting the table: The United Kingdom emerged from the Napoleonic Wars with clear dominance at sea. Although by the 1820s, the United States of America had a mercantile navy that approximated that of the United Kingdom, the Royal Navy “was ten times greater than that of the United States”.20 As for France, the British Vice-Admiral, Horatio Nelson, laid the French Navy to waste: first, at the 1798 Battle of the Nile (Aboukir), stranding Napoleon’s Expedition Army in Egypt by destroying its transport; and later, at the 1805 Battle of Trafalgar, destroying a combined Franco-Spanish fleet. With no rivals at sea, the United Kingdom sought to establish a right during peacetime which all maritime States benefited from in war, namely the right to visit foreign ships. While a belligerent right to visit ships was well established 18 Id., p. 41. Note that St. Domingue is modern-day Haïti which gained its independence in 1804 as a result of a slave revolt. See C.L.R. James, The Black Jacobins (1938), 2001. For a consideration of the leader of the Haïtian Revolution written by the foremost French abo­ litionist of his day, in 1889, see Victor Schoelcher, La Vie de Toussaint Louverture, 1982. 19 Declaration des 8 Cours, relative à l’Abolition Universelle de la Traite des Nègres, 8 Feburary 1815, British and Foreign State Papers, Vol. 3 (1815–1816), 1838, p. 972. The eight Powers at Vienna were: Austria, Britain, France, Prussia, Russia, Portugal, Spain, and Sweden. 20 Eugene Schuyler, American Diplomacy and the Furtherance of Commerce, 1895, p. 241.



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by this era, it was limited to visiting neutral ships to ascertain whether they were in fact neutrals or simply flying flags of convenience; and to searching to ensure that no contraband material was on board.21 No such right existed in peacetime, though the British courts were willing, for a short period of time to accept that a right to visit to suppress the slave trade in times of peace existed jus gentium. This ran counter to the Grotian notion of the freedom of the seas. Yet, it found voice in the 1810 The Amedie case, where an American ship carrying one hundred and five slaves from Bonny to Cuba was condemned by a British Vice-Admiralty Court. On appeal, the Lords of Appeals in Prize Causes noted that: We do now, and did at the time of this capture, take an interest in preventing that traffic in which this ship was engaged. The slave trade has since been totally abolished in this country, and our Legislature has declared the African slave trade is contrary to the principles of justice and humanity. […]  [We] are now entitled to act according to our law and to hold that prima facie the trade is altogether illegal, and thus to throw on a claimant the whole burden of proof in order to shew [sic] that by the particular law of his own country he is entitled to carry on this traffic. As the case now stands, we think that no claimant can be heard in an application to a court of prize for the restoration of the human beings he carried unjustly to another country for the purpose of disposing of them as slaves.22

This natural law approach to dealing with the slave trade would be short-lived, as a decidedly positivist perspective would take root in the post-Napoleonic era.23 Where the slave trade was concerned this was manifest in the Le Louis case of 1817, in which Lord Stowell of the British High Court of Admiralty stated that “at present, under the law, as now gen­ erally understood and practised, no nation can exercise a right of visita­ tion and search upon the common and un-appropriated parts of the sea, save only on the belligerent claim”.24 The principles which emerged were very much rooted in positive international law, wherein States were required to gain consent, if they wished to visit foreign flagged ships, to suppress the slave trade. Although attempts were made at the Congress of Vienna in 1814–15 and at the Congress of Verona in 1822 to gain universally

21 For the law regarding neutrals during war, up to the mid-1800s, see Laurent-Basile Hautefeuille, Des droits et devoirs des nation neuters en temps de guerre maritime, (3 volumes) 1858. 22 The Amedie, Acton’s Admiralty Reports, Volume 1, 1810, pp. 250–252. See also The Fortuna, Dodson’s Admiralty Reports, Volume 1, 1811, p. 81. 23 See Arthur Nussbaum, A Concise History of the Law of Nations, 1961, pp. 232–234. 24 Le Louis, Dodson’s Admiralty Reports, Volume 2, 1817, pp. 244–245.

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binding commitments to abolish the slave trade at sea, these were not forthcoming.25 This cemented the United Kingdom’s move towards estab­ lishing a web of bilateral agreements so as to abolish the slave trade in a piecemeal manner. The network of bilateral treaties which the United Kingdom built – there were ultimately treaties with thirty-one States – took more than a half century to create, as a number of maritime powers were opposed, not to the slave trade per se, but to granting the Royal Navy the right to visit their merchant ships and thus a de facto policing of the seas.26 These bilat­ eral treaties evolved over time with early Nineteenth-Century treaties sim­ ply spelling out the principle of abolition; but by the end of the Napoleonic Wars, the United Kingdom sought – and received – agreements which went beyond the declaratory to providing elements which would become 25 See Declaration des 8 Cours, relative à l’Abolition Universelle de lat Traite des Nègres, 8 February 1815, Vienna, British and Foreign State Papers, Volume 3, p. 972; and Résolution relatives à l’Abolition de la Traite des Nègres, 28 November 1822, Veronia, British and Foreign State Papers, Volume 10, p. 109–110. 26 These thirty-one States included, by chronological order of the signing of the first agreement with Great Britain: Portugal, Denmark, France, Spain, Netherlands, Sweden, Buenos Aires, Colombia, Brazil, Mexico, Confederation of Peru, Bolivia, Hanseatic Cities, Tuscany, the two Sicilies, Chili, Venezuela, Uruguay, Haiti, Texas, Austria, Prussia, Russia, The United States of America, The Kings and Chiefs of Cape Mount (Africa), Equator, Muscat, Arabs of the Gulf, New Granada, Zanzibar, Egypt. See Phillimore, n. 8, pp. 420–421. Beyond these treaties related to policing the seas, the United Kingdom sign more than a hundred treaties in the late Nineteenth Century with African leaders to suppress the slave trade on land. Divided by region, the following groups signed such agreement in the lead up to the 1889–1890 Brussels Conference: Central Africa: Gando, Sokoto; East Africa: Brava (Somalia), Comoro, Eesa Somal, Habr-Awal, Habr-Gerhajis, Habr-Toljaala, Mohilla, Soomalees (sic), Tajowra, Warsangali, Zaila; but primarily from West Africa: Abbeokuta, Abo-den-Arfo, Aboh, Acassa, Adaffie, Adinnar Cooma, Afflowhoo, Aghwey, Angiana, Badagry, Baddiboo, Bagroo River, Batanga, Bereira, Biafra, Bimbia, Biombo, Bonney, Boom River, Bulola, Bussama, Cabenda, Cagnabac, Calabar, Cameroons, Camma, Cantalicunda, Cape Lopez, Cape Mount, Cartabar, Chacoonda, Congo, Cumbo, Dahomey, Dalu Mahdoo, Dobacconda, Drewin, Egarra, Epe, Fouricaria, Gallinas, Garraway River, Goom Corkway, Grand Bereby, Grand Lahou, Grand Popoe, Grand Sesters, Ivroy Bay, Joboo, Jack Jaques, Joug River, Kambia, Kinsembo, Kittam, Lagos, Little Booton, Little Popoe, Lucalla, Macbatee, Malghea, Malimba, Manna, Monney, Maricaryah, Naloes, New Calabar, New Cestos, Nyanibantang, Okeodan, Old Town (Old Calabar), Omitska, Otanda, Pocrah, Porto Novo, Qua Plantations, Nio Nunez, Pongas, Ro-Woolah, St. Andrew, St. Antonio, Samo, Samoah, Sherbro, Small Scarcies River, Sugury, Soombia, Zanga Tanga. See British and Foreign State Papers, General Index, Volumes 64 and 80.



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standard. Such agreements allowed each party’s navies, under special instruction, the right to visit each others’ merchant ships suspected of being slave traders and in situations where slaves were found on board, the ship was to be brought before a mixed commission to determine whether it and its cargo were to be forfeited.27 As a result of these mixed commissions, close to 80,000 slaves were liberated and more than six hun­ dred slavers condemned.28 Although these agreements become standard, a further evolutionary step took place as it rather quickly became evident that these reciprocal visitation treaties were lacking, as ships which did not have slaves on board or – rather gruesomely – while pursued, threw their slaves overboard to “evade forfeiture” and thus were able “to pursue their unlawful course with impunity, contrary to the true object and spirit of such treaties.29 As a result, so-called ‘equipment clauses’ were intro­ duced into subsequent treaties, which determined that a ship outfitted with certain material would be “considered as primâ facie evidence of her actual employment in the Slave Trade”. Such equipment included: open gratings on hatches, spare planks for the creation of a slave-deck, possession of “shackles, bolts or handcuffs”, or an overabundance of water and food compared to the needs of the crew as regards their envisioned voyage.30 Throughout the United Kingdom’s attempt to gain a right to visit to suppress the slave trade, it was France which remained the most recalci­ trant. As Serge Daget notes, in Nineteenth-Century France it was consid­ ered that the “envied rival was using ostensibly humanitarian means to

27 See, for instance, Article 1, Explanatory and Additional Articles to the 4th May, 1818, between Great Britain and The Netherlands, for the Prevention of the Traffic in Slaves, 31 December 1822, British and Foreign State Papers, Volume 5, p. 132. 28 J P van Niekerk, “British, Portuguese, and American judges in Adderley Street; the international legal background to, and some judicial aspects of, the Cape Town Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century (Part 2)”, The Comparative and International Journal of Southern Africa, Volume 37, 2004, p. 200. See also Jenny Martinez, “Antislavery Courts and the Dawn of International Human Rights Law”, Yale Law Journal, Volume 117, 2007–2008, pp. 550–641; and Farida Shaikh, “Judicial Diplomacy: British Officials and the Mixed Commission Courts”, in Keith Hamilton and Patrick Salmon (eds.) Slavery, Diplomacy and Empire: Britain and the Suppression of the Slave Trade, 1807–1975, 2009, pp. 42–64. 29 See Article 1, Further Additional Article to the 4th May, 1818, Treaty between Great Britain and The Netherlands, for the Prevention of the Traffic in Slaves, 25 January 1823, Brussels, British and Foreign State Papers, Volume 10, p. 559. 30 See, for instance, Further Additional Article to the before-mentioned Treaty, 25 January 1823, British and Foreign State Papers, Volume 10, p. 559–560.

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further its ambitions for political, commercial and indeed military hegemony” of the seas.31 For this reason France was hesitant to join the British bilateral system, instead dispatching warships to the West African coast where, from 1817 to 1831, they seized sixty-five ships and condemned fifty-one of a known total of just under, five hundred French slavers.32 The United Kingdom would have to wait until the 1830 July Revolution to find a French government willing to sign a visitation treaty; however, the trea­ ties of 1831 and 1833 proved to be contentious; their application became embroiled in the traditional British-French rivalry which was so much a part of that era.33 By the early 1840s, France appeared poised to leave the British bilateral system, as the treaties of 1831 and 1833 were for a ten-year period with little hope of renewal. With this as a backdrop, at British prompting Austria, France, Prussia, Russia, and the United Kingdom signed a treaty which assimilated the slave trade at sea with piracy. The United States, it should be noted, was the first to make this connection, equating slaving to piracy in its domestic legislation in 1820; likewise the United Kingdom had managed to include such a provision as early as 1826 in an agreement with Brazil. Yet, the fact that it appeared in a multilateral convention among the European Powers meant that the United Kingdom was very close to achieving its foreign policy objective of an established right to visit in international law. This is so as the assimilation of slaving to piracy would mean that ships involved in the trade would have no right to avail themselves of the protection of any State’s flag and as such, could be visited with impunity by ships of all States – in other words, to use modern terminology, universal jurisdiction would to be established.34 The 1841 Convention required that domestic 31 Serge Daget, “France, Suppression of the Illegal Trade, and England, 1817–1850”, David Eltis and James Walvin (eds.), The Abolition of the Atlantic Slave Trade: Origins and Effects in Europe, Africa, and the Americas, 1981, p. 194. 32 Id., p. 200. 33 Serge Daget, La répression de lat traite des Noirs au XIXe sicècle: L’action des croisières français sur les côtes occidentales de l’Afrique (1817–1850), 1997, pp. 472–475 and 481–486. 34 Note that the leading international jurist, William Beach Lawrence, had the follow­ ing to say on the issue of the relationship between piracy and slavery: Piracy being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction, for trial in its tribunals.  This proposition, however, must be confined to piracy as defined by the law of nations, and cannot be extended to offences which are made piracy by municipal legislation. […]



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courts assume jurisdiction over seizures; it also provided a right to visit in a maritime zone which included the east coast of the New World from modern day Florida westward to India, extending southward to a parallel line established just south of Buenos Aires and extending east into the Indian Ocean.35 Yet the signing of the 1841 Convention “stirred up a veritable hornets’ nest in France”,36 in part, for practical reasons: Austria, Prussia, and Russia being land Powers – the provisions only truly applied to France; for geopo­ litical reasons: as the United Kingdom had imposed its will in Egypt and Syria at the expense of France; and, as a result of the actions of the American Ambassador in Paris. The Ambassador, General Lewis Cass, fearing that the United States would be isolated, as being the only mari­ time power outside the British regime of bilateral treaties and forced to give up its freedom of the seas, produced in Paris an anonymous pam­ phlet, which in the words of one historian, “excited violent agitation against” the Convention.37 The end result was that the 1841 Convention was not ratified by France, though it did come into force for the other four parties, and was later acceded to by other States.38 As a result of the failure to gain agreement on the 1841 Convention, France and the United Kingdom concluded a ten-year treaty in 1845 which suspended the 1831 and 1833 treaties and ended the mutual right to visit to

The African slave trade, though prohibited by the municipal laws of most nations, and declared to be piracy by the statutes of Great Britain and the United States, and, since the Treaty of 1841, with Great Britain, by Austria, Prussia, and Russia, is not such by the general international law, and its interdiction cannot be enforced by the exer­ cise of the ordinary right of visitation and search. See William Beach Lawrence, Wheaton’s Elements of International Law, 6 edition, 1857, pp. 184, 185 and 186. See also Wilhelm Grewe, The Epochs of International Law, 2000, pp. 554–569; and Alfred Rubin, Ethics and Authority in International Law, 1997, pp. 82–137. 35 See Article 2, Treaty between Great Britain, Austria, France, Prussia, and Russia, for the suppression of the African Slave Trade, 20 December 1841, British and Foreign State Papers, Volume 20, p. 273. For a pictorial representation of the zone, see Grewe, id., p. 559. 36 Suzanne Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem, 2003, p. 17. See also Henry de Montardy, La Traite et le Droit International, 1899, pp. 87–88. 37 William Mathieson, Great Britain and the Slave Trade (1839–1865), 1929, p. 67. See also Beach Lawrence, n. 34, footnote at p. 188; where he states that two essays, one by noted American jurist Henry Wheaton (Enquiry into the Validity of the British Claim to a Right of Visitation and Search of American Vessels Suspected to be Engaged in the African Slave trade, 1842) the other by General Cass (Examen de la Question aujourd’hui pendanted entre le Governement des États Unis et celui de la Grande Bretagne, concerrnant le Droit de Visite, 1842) “are understood to have had no little influence in preventing the ratification of that treaty by the Government of France”. 38 Miers, n. 36, p. 17.

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suppress the slave trade. Instead the parties agreed that, in order that their flags “may not, contrary to the law of nations and the laws in force in the 2 countries, be usurped, to cover the Slave Trade”, each would station a twenty-six ship strong naval squadron of the west coast of Africa.39 These squadrons were to work in concert, within a specific maritime zone, to suppress the trade – “jointly or separately, as may be deemed most expedient” – but could only visit ships to ascertain if they had a right to fly the Tricolour or the Red Ensign and this, only, on the basis of Instructions which each had communicated to the other party.40 While these Instruc­ tions would be modified over time, the original Instructions for the Senior Officers of Her Majesty’s Ships and Vessels of 1845 made plain that you “are not to capture, visit, or in any way interfere with vessels of France”; but at the same time the United Kingdom “will not allow vessels of other nations to escape visit and examination by merely hoisting a French flag”.41 Thus, the British Instructions continue: Accordingly, when from intelligence, which the officer commanding Her Majesty’s cruiser may have received, or from the manoeuvres of the vessels, or other sufficient cause, he may have reason to believe that the vessel does not belong to the nation indicated by her colours, he is, if the state of the weather will admit of it, to go a-head of the suspected vessel, after commu­ nicating his intention by hailing, and to drop a boat on board of her to ascer­ tain her nationality, without causing her detention.

In seeking to determine the nationality of a ship, the officer who boards the stranger is to be instructed merely in the first instance to satisfy himself by the vessel’s papers, or other proof, of her nationality; and if she proved really to be a vessel of the nation designated by her colours, and one which he is not authorized to search, he is to lose no time in quitting her, offering to note on the papers of the vessel the cause of his having suspected her nationality, as well as the number of minutes the vessel was detained.

If on the contrary, the ship proved to be flying fraudulent colours, the com­ mander of the man-of-war was to “deal with her as he would have been authorized and required to do had she not hoisted a false flag”: that is, 39 Article 1, Convention between Great Britain and France, for the Suppression of the Traffic in Slaves, 29 May 1845, British and Foreign State Papers, Volume 33, p. 4. 40 See Article 7, Convention between Great Britain and France, for the Suppression of the Traffic in Slaves, 29 May 1845, British and Foreign State Papers, Volume 33, p. 4. 41 See “Annex referred to in Article VII”, Convention between Great Britain and France, for the Suppression of the Traffic in Slaves, 29 May 1845, British and Foreign State Papers, Volume 33, p. 14.



the slave trade71

either as a stateless ship, or on the basis of one of the bilateral treaties which the United Kingdom had negotiated.42 The Instructions of 1845 were replaced in 1859. These new Instructions, of which the French and British versions mirrored each other were much more thorough than those of 1845. The Instructions first set down the prin­ ciple that by “virtue of the immunity of national flags, no merchant-vessel navigating the high seas is subject to any foreign jurisdiction. A vessel of war cannot therefore visit, detain, arrest, or seize (expect under Treaty) any merchant-vessel not recognized as belonging to her own nation”. The Instructions went on to state that if a ship failed to hoist its flag, that a “first warning may be given her by firing a blank gun, and should this have no result, a second gun warning may be given her by means of a shotted gun, to be levelled in such a manner as not to [strike] her”.43 If a ship did hoist its flag, it was to be understood that the “man-of-war has no right to exercise the least control over her”, unless the nationality could be “seri­ ously called into question”. On this basis, after having hailed and informed the ship of its intentions, a cruiser could send an officer aboard with the understanding that only an examination of papers was to be undertaken: “All inquiry into the nature of the cargo; or the commercial operations of the said ships; in a word, on any other subject save that of their nationality; all search, all visit, are absolutely forbidden”.44 Thus, the right to visit had been narrowed, having been decoupled from the right to search. The final set of modified Instructions issued by the two States – those of 1867 – mirrored the above provisions of the 1859 Instructions but were more focused, allowing an officer to request only specified papers on board a ship suspected of flying a fraudulent flag. If a ship was deemed to have been flying such a flag, the warship was to escort its capture to the nearest port where a representative of the flag State could determine whether it had a right to fly the flag in question.45 The 1867 bilateral Instructions would become crucial to the evolution of the suppression of the slave trade at sea as they would remain in force between the two States despite the General Act of the Brussels Conference of 1890. The General 42 Id. 43 Instructions issued to Commanders of French Ships of War, as found in the “Correspondence respecting the Visit of American Vessels by British Cruisers”, British Sessional Papers, Vol. 34, 1857–1858, p. 427. 44 Id., p. 428. 45 See “Instructions as to Vessels under the French Flag”, Documents relatives à la Répression de la Traite des Esclaves publiés en execution des Articles LXXXI et suivants de l’Act Général de Bruxelles, 1892, pp. 272–274.

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Act established – but for a French reservation allowing it to opt-out of visitation – an international regime to suppress the slave trade at sea. Before considering the Brussels Conference of 1890, a quick reference should be made to the Berlin Conference of 1885 in which the following Declaration relative to the slave trade was made: Seeing that trading in slaves is forbidden in conformity with the principles of international law as recognized by the Signatory Powers, and seeing also that the operations, which, by sea or land, furnish slaves to trade, ought likewise to be regarded as forbidden, the Powers which do or shall exercise sovereign rights or influence in the territories forming the Conventional basin of the Congo declare that these territories may not serve as a market or means of transit for the trade in slaves, of whatever race they may be. Each of the Powers binds itself to employ all the means at its disposal for putting an end to this trade and for punishing those who engage in it.46

Geraldine Van Bueren, in pointing to the provision which reads “trading in slaves is forbidden in conformity with the principles of international law”, notes that this “implies that the slave trade was illegal prior to this conclu­ sion of the Berlin Conference Act as it is declaratory of existing general principles of international law. This begs the question of when the slave trade was illegal under general international legal principles”?47 First, it might be noted that the provision as originally drafted read: “Conformément aux principes du droit des gens, tels qu’ils sont reconnus par les Puissances signataires”. In French, droit des gens is more akin to jus gentium than to international law which would be translated as droit international. As a result, a more accurate reading of this provision would be that the States negotiating at Berlin had each, within their domestic legal systems, abol­ ished the slave trade at sea. Assuming that Van Bueren is asking when the slave trade was made illegal under international law (as opposed to her notion of “existing general principles of international law”), the answer is 1890.

46 Article 9, General Act of the Conference of Berlin, relative to the Development of Trade and Civilization in Africa; the free navigation of the River Congo, Niger, etc.; the Suppression of the Slave Trade by Sea and Land; the occupation of Territory on the African Coast, etc. 26 February 1885. Sir E Hertslet, The Map of Africa by Treaty, Volume 2, 1967, p. 474. 47 Geraldine Van Bueren, “Slavery as Piracy: The Legal Case for Reparations for the Slave Trade”, Christien van den Anker, The Political Economy of New Slavery, 2004, pp. 239–240.



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At the Brussels Conference, the General Act of the Brussels Conference of 1890 dealt with a number of issues, the suppression of the slave trade at sea having been the most contentious, as French plenipotentiaries at Brussels stated categorically that if the right to visit was placed on the agenda, they were not authorised to participate in such discussions. Ultimately, agreement was reached at Brussels as a result of the mediation effort of Fyodor de Martens who benefited from the fact that, as a Russian delegate, he was seen as a disinterested party where issues of slavery in Africa and the slave trade at sea were concerned. Martens prepared a report and draft articles which later were “entered into the General Act without major modification”.48 Having considered the various positions put forward, Martens suggested over-arching principles and practical rules, which found their way into the General Act.49 These included the establishment of a maritime zone on the high seas contiguous to the East Coast of Africa encompassing both the Red Sea and the Persian Gulf wherein a right to visit was established but only with respect to ‘native’ vessels, that is: “vessels of less than 500 tons burthen”.50 On the basis of the 1890 General Act, Queneuil noted, it looked like the “latent and disquieting conflict” had been put to rest; yet as Miers writes, an “unforeseen and serious difficulty”51 arose as “the French Chamber of Deputies decided to suspend the authorization to ratify the General Act” as it was unwilling to ratify those elements touching on the suppression of the slave trade at sea. The issue of French ratification was only resolved on 2 April 1892 when States accepted a French instrument of ratification which included a reservation that, while effectively agreeing to the Gene­ ral Act, excluded those provisions related to visitation.52 As a result, the legal abolition of the slave trade at sea was now governed by a universal instrument.

48 Henry Queneuil, La Conférence de Bruxelles et ses Résultats, 1907, p. 136. 49 See Annex 6, Protocol 10, “Projet de Traité et project de Règlement codifiant les pro­ jets précédents et préséntés par les Plénipotentiaires de Russie”, 17 February 1890, Actes de la Conférence de Bruxelles (1889–1890), p. 169. 50 See Article 21, General Act of the Brussels Conference relative to the African Slave Trade, 2 July 1890, Sir E. Hertslet, The Map of Africa by Treaty, Volume 2, 1967, p. 499. 51 Miers, n. 36, p. 293. 52 See “France”, Protocol of a Meeting held at Brussels, in the Foreign Office, respecting the Exchange of Ratification of the General Act of the Brussels Conference, 2 January 1892, Sir E. Hertslet, The Map of Africa by Treaty, Volume 2, 1967, 524–25.

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ASIA

Mediterranean Sea

r Pe

sia n

Gu lf

BALUCHESTAN

Gulf of Oman

R ed Se a Gulf

d of A

en

AFRICA

INDIAN

MA

DAG AS

CAR

Quilliman

OCEAN

Maritime zone of the 1890 Brussels Act

The Maritime Zone established at the 1890 Brussels Conference.



the slave trade75 Abolition of the Slave Trade in the Twentieth Century

Where the Nineteenth Century had focussed almost exclusively on the slave trade, the Twentieth Century would consider the trade secondary to slavery and other types of human exploitation. As such, the slave trade – which was effectively dead in the water – often trailed in the wake of con­ siderations of slavery as an apparent after-thought, though the slave trade at sea remained very contentious. It remained so primarily because of the tenaciously held desire of the United Kingdom to establish universal juris­ diction to suppress the trade by assimilating the slave trade to piracy. Where the slave trade at sea is concerned, the Twentieth Century started with the application of the 1890 General Act in the 1905 Muscat Dhows case before the Permanent Court of Arbitration and ends with the estab­ lished law of Articles 99 and 110 of the United Nations Convention on Law of the Sea of 1982. In the 1905 Muscat Dhows case, the Panel considered whether the status of subjects of the Sultan of Muscat which had been deemed protégé by France in 1844 (that status having been modified in 1863) – and thus benefit from its protection at sea, by flying the French flag – was limited by that State’s obligations resulting from the 1890 General Act. The issuance of papers authorising dhows to fly French flags, it had been noted, meant that those ‘native vessels’ had been “commonly employed in the slave trade”.53 In its is Award, the Panel of the Permanent Court of Arbitration pointed to Article 32 of the 1890 General Act which set out the conditions under which native vessels were to be granted authority to fly a flag. This included owners or outfitters “furnishing proof that they enjoy a good reputation, and especially that they have never been condemned for acts of slave trade”.54 The Court of Arbitration deter­ mined that after France had ratified the General Act, it was not allowed to “authorize vessels belonging to subjects of His Highness the Sultan of Muscat to fly the French flag”, except on conditions that their owners or outfitters had established that they had been considered and treated by France as her protégés before the year 1863. It further determined, with regard to another question, that the “authorization to fly the French flag can not be transmitted or transferred to any other person or other dhow,

53 See Syllabus, “The Muscat Dhows Case between France and Great Britain”, James Brown Scott (ed.), The Hague Court Reports, 1916, p. 93. 54 See Article 32, General Act of the Brussels Conference relative to the African Slave Trade, 2 July 1890, Hertslet, n. 50, p. 500.

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even if belonging to the same owner”.55 In essence, the Permanent Court of Arbitration determined that in this case the slave trade would die a natural death. That subjects of Muscat might well be able to benefit from the protection of the French flag was accepted, but only in their lifetime (or that of their precious dhow) though this protection had been granted some forty years previously. Taking into consideration the life expectancy in early Twentieth-Century Muscat and that of ‘native vessels’, the Perma­ nent Court of Arbitration had, at the prompting of the United Kingdom, sounded the death-knell of the slave trade a sea. In the aftermath of the First World War, the 1919 Convention of Saint Germain-en-Laye abrogated for some States, the General Act of 1890. The Convention of Saint Germain-en-Laye is officially titled the Convention revising the General Act of Berlin of 26 February 1885 and the General Act and Declaration of Brussels of 2 July 1890. Abrogation was brought on primarily by a wish by the States Parties to address restriction on free imports into the Congo Basin which had found their way into both instru­ ments. The 1919 Convention raised difficulties as it also contained the Covenant of the League of Nations and, as a result, excluded States such as the United States of America, which did not join the League. Thus, two regimes for the suppression of the slave trade at sea persisted in the first half of the Twentieth Century: one for States bound by the General Act of 1890 and another for the States party to the Convention of Saint Germainen-Laye of 1919. The 1919 Convention, for its part went much further than the 1890 General Act, as it mandated that colonial powers in Africa “endeavour to secure the complete suppression of slavery in all its forms and of the slave trade by land and sea”.56 These two regimes would persist until the coming into force of the 1958 Convention on the High Seas. The 1926 Slavery Convention The next step in the the evolution of the law dealing with the slave trade transpired with the signing of the 1926 Slavery Convention which incorpo­ rates, for the first time, a definition of the slave trade into international law. A definition, it should be noted, that holds to this day. The negotiation 55 Award of the arbitration tribunal appointed to decide on the question of the grant of the French flag to Muscat dhows, 8 August 1905, James Brown Scott (ed.), The Hague Court Reports, 1916, pp. 99 and 100. 56 See Article 11, Convention revising the General Act of Berlin of 26 February 1885 and the General Act and Declaration of Brussels of 2 July 1890, 10 September 1919. Emphasis added.



the slave trade77

of the Convention, which transpired under the auspices of the League of Nations, led to agreement on mutual assistance in securing the aboli­ tion of the slave trade. Despite this, the United Kingdom was once more unsuccessful in attempting to assimilate the slave trade to piracy and thus failed to gain agreement on universal jurisdiction where the trade was concerned. With regard to the slave trade at sea, States party to the 1926 Convention did not go nearly as far a the British negotiators had hoped, as they were unwilling to agree to any multilateral obligations, instead leaving it to each State to “adopt all appropriate measures which a view to preventing and suppressing the embarkation, disembarkation and trans­ port of slaves […] upon all vessels flying their respective flags”. The move by the League of Nations to establish a international instru­ ment which dealt with slavery, but which also addressed the slave trade, results from efforts, in 1922, to focus on issues of slavery in Africa generally and more specifically in Ethiopia, an independent State, though at the time, a non-Member of the League of Nations.57 As a result of agreement that slavery went beyond one State and was of international importance, a committee of experts, the Temporary Slavery Commission of 1924–1925, was created and considered various elements related to slavery including the slave trade, slave-raiding, serfdom, and forced labour. It called for an international instrument which would incorporate various items includ­ ing the “infliction of the severest penalties on persons who have taken part in a raid or in the transport of slaves” and called for “the transport of slaves by sea to be regarded as an act of piracy”.58 This call for a convention to deal with issues of slavery and the slave trade was picked up by the United Kingdom with a draft instrument being tabled in 1925. By and large, that 1925 British Draft Protocol, though it made its way through two negotia­ tion qua drafting rounds, was sustained in large part and found the light of day through its incorporation into the 1926 Slavery Convention. That said, the slave trade at sea was the exception which proved the rule. In negotiating the 1926 Slavery Convention, it was recognised that previous instruments including the general acts of Berlin in 1885 and Brussels in 1890, along with the Convention of Saint Germain-en-Laye of 1919 “affirmed their intention of securing the complete suppression of

57 See Jean Allain, “Slavery and the League of Nations: Ethiopia as a Civilized Nation”, Journal of the History of International Law, Vol. 8, 2006, pp. 213–244. 58 League of Nations, Temporary Slavery Commission, Report of the Temporary Slavery Commission adopted in the Course of its Second Session, July 13th-25th July, 1925, LofN Doc A.19.1925. VI, 25 July 1925, p. 2.

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slavery in all its forms and of the slave trade by land and sea”. Yet it was also recognised that the Convention of Saint Germain-en-Laye, “had been proved by subsequent experience to be insufficiently detailed”; which resulted in the acceptance of a British proposal to include the final clause to the following paragraph of the Preamble of the 1926 Convention: Desiring to complete and extend the work accomplished under the Brussels Act and to find a means of giving practical effect throughout the world to such intentions as were expressed in regard to slave trade and slavery by the signatories of the Convention of Saint Germain-en-Laye, and recognising that it is necessary to conclude to that end more detailed arrangements than are contained in that Convention.59

As we shall see shortly, the United Kingdom indeed received provisions allowing for more ‘detailed arrangements’ where the slave trade at sea was concerned, though these proved ephemeral as, despite their detail, the provisions were still-born as dead-letter law. However, before examining these provisions of the slave trade at sea, consideration should first turn to the establishment of a definition of the term ‘slave trade’. The established definition of the slave trade in international law emerges from the work of the Albrecht Gohr, the Chairman of the Tempo­ rary Slavery Commission, who was part of the Drafting Committee of the League of Nations considering the British Draft Protocol. Gohr broke down the British proposal into its component parts: “The slave trade con­ sists in the capture or purchase of persons with the object of selling or bartering them as slaves; the sale of persons acquired for this purpose by capture, purchase or barter, together with the transport operation involved by this traffic”.60 He then considered elements of the slave trade as defined in domestic legislation and arrived at the following elements as constitut­ ing the slave trade: • the capture or purchase of a person with the object of making him a slave; • the sale or purchase of a person acquired for such purpose; • the transfer, as a slave, of a person to whom the transferrer owes a legal or customary duty or protection of whom he has undertaken to protect;

59 League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 2; as found in League of Nations, Publications of the League of Nations, VI.B. Slavery. 1926, VI. B. 2. Emphasis added. 60 League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 25.



the slave trade79 • any other operation having as their object the slave trade or the transport of slaves; • and any other act which is considered by the legislation of a state in which it takes place as an act connect with the slave trade.61

These elements were then considered by a handful of individuals within the Drafting Committee who put forward a proposal which would ulti­ mately find its way into Article 1(2) of the 1926 Slaver Convention, which reads: The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and in general every act of trade or transport of slaves.62

The Archives of the League of Nations do not reveal any information regarding the motivations or thinking of the individuals involved in the drafting of the provisions on the slave trade. Though, in introducing the definition of the slave trade as part of the 1926 Slavery Convention to the Assembly of the League of Nations, more was said: it was “primarily the result of the work of legal experts, and appears to the [negotiators] to correspond satisfactorily with the chief object they had in view”.63 That said, the original draft of the Report of the negotiators sent to the Assembly was more forthcoming in explaining their approach, as the definition of the slave trade was “based on the minimum provisions of existing colonial legislation and on previous international conventions”.64

61 League of Nations, Slavery: Draft Protocol Text proposed by M. Gohr (with handwrit­ ten amendments), A.VI/S.C.1/5.1926, 9 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925. 62 See League of Nations, Question of Slavery: Draft Report Presented to the Sixth Assembly by the Sixth Committee, A.VI/6.1925, 23 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925; for Article 1(2) of the 1926 Slavery Convention see League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586.M.223.1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B.Slavery.1926. VI.B.7. 63 League of Nations, Slavery Convention: Report of the Sixth Committee to the Assembly, League of Nations Official Journal, Records of the Seventh Ordinary Session of the Assembly; text of the Debates (Special Supplement 44), Annex 20, A.104.1926.VI, 25 September 1926, p. 415. 64 League of Nations, Seventh Assembly of the League of Nations, Sixth Committee, Notes for the Rapporteur’s Report on Slavery, International Convention on Slavery, Report Present to the Seventh Assembly by the Sixth Committee, Rapporteur Lord Cecil of Chel­ wood, A.104.1926.VI, 24 September 1926.

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Moving now from the definition of the slave trade to the provisions dealing with the slave trade at sea, the British Delegate to the League of Nations, Robert Cecil – Viscount Cecil of Chelwood – who also acted as Rapporteur on the issue, noted that the Temporary Slavery Commission had suggested “that the transport of slaves by sea be considered as an act of piracy”.65 The inclusion of such a provision he stated “would certainly have a psychological value in solemnly decreeing by the greatest interna­ tional authority now existing that the slave trade was the most heinous of crimes”, not to mention bestowing universal jurisdiction and the unfet­ tered right of warships to visit foreign vessels suspected of being involved in the slave trade.66 However, Viscount Cecil noted that the attempt to assimilate the slave trade to piracy “had excited a certain amount of anxi­ ety on the part of some of the representatives on the ground that they did not quite know what the effect of declaring something to be piracy really would be.” As such, he was willing to substitute the provisions for a “reaf­ firmation of the provisions in the Brussels Act, which might be said to have been tested in practice, dealing with the suppression only applied to a definite maritime zone which was there described”.67 In fact, what was agreed to after the negotiation over the 1925 British Draft Protocol was fundamentally different from the approach put forward by the United Kingdom. Despite the rejection of the assimilation of the slave trade to piracy, the British Government once more sought to have the provisions equating the slave trade to piracy included in the Convention during the second set of negotiations which transpired in 1926. As a justification for reintroducing the provisions assimilating slaving at sea to piracy, the British Government stated that: Certain crimes are regarded as being, in a peculiar degree, crimes against the human race. His Majesty’s Government considers that there is a general con­ sensus of opinion in civilised States that the slave trade constitutes a crime of this nature. […] It follows that, from this point of view, the slave trade by sea may be regarded as falling into the same category of crime as piracy.68 65 Temporary Slavery Commission, n. 58, p. 7. 66 League of Nations, Slavery: Draft Resolution and Protocol proposed by the British Government (continuation): Statement by Viscount Cecil, Official Journal, Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions), Special Supplement No. 39, 14 September 1925, p. 14. 67 Id., p. 15. 68 League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the British Government, A.10.1926.VI, 21 July 1926, p. 3; as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926, VI. B. 3, p. 3.



the slave trade81

During the negotiation process which lead to the adoption of the 1926 Slavery Convention, Viscount Cecil of Chelwood raised the issue of assimilating the slave trade to piracy, however it was noted that while negotiators “took the same attitude toward the question from a moral point of view”; many “thought that serious difficulties arose as regards the application in law of this proposal”.69 What emerged from the negotia­ tions was no right to visit via the assimilation of the slave trade to piracy; instead, States agreed to obligations to ensure that each State took “all appropriate measures” to suppress the slave trade “upon all vessels flying their respective flags”. Further, they undertook to negotiate a general con­ vention in line with the 1925 Convention on the International Trade in Arms and, in the lead up to that proposed instrument, States were free to pursue bilateral agreements. These provisions of the 1926 Convention read as follows: The High Contracting Parties undertake to negotiate as soon as possible a general Convention with regard to the slave trade which will give them rights and impose upon them duties of the same nature as those provided for in the Convention of June 17th, 1925, relative to the International Trade in Arms (Articles 12, 20, 21, 22, 23, 24, and paragraphs 3, 4 and 5 of Section II of Annex II), with the necessary adaptations, it being understood that this general Convention will not place the ships (even of small tonnage) of any High Contracting Parties in a position different from that of the other High Contracting Parties.  It is also understood that, before or after the coming into force of this general Convention the High Contracting Parties are entirely free to con­ clude between themselves, without, however, derogating from the principles laid down in the preceding paragraph, such special agreements as, by reason of their peculiar situation, might appear to be suitable in order to bring about as soon as possible the complete disappearance of the slave trade.

However, such a future ‘general Convention’ was for naught, as Miers explains: The Slavery Convention had bound signatories to negotiate a general convention against the maritime slave trade and envisaged that the colonial powers on the Red Sea coast would conclude special agreements between themselves. To be effective, these required the registration of native vessels, control of passengers at ports of embarkation and disembarkation, as well as joint naval patrols or the granting of mutual rights to search in each other’s

69 League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, (VI. B. Slavery 1926, VI. B. 5) 24 September 1926, p. 2.

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Instead, what was thus left of obligations within the 1926 Slavery Conven­ tion with regard to the slave trade at sea was rather retrograde, as the provision did not create international control over the slave trade at sea, instead leaving it to each State to act. The first paragraph of Article 3 is a follows: The High Contracting Parties undertake to adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags.71

Beyond these obligations touching specifically on the slave trade at sea, reference should also be made to Articles 6 and 7 of the 1926 Convention which establish the final obligations of the States Parties. Article 6 requires that States ensure that their laws are adequate “in order that severe penal­ ties may be imposed” so as to give effect to the Convention.72 As a result, Article 6 creates a positive obligation on State Parties to have in place domestic legislation penalising breaches of the Convention. The final obli­ gation flowing from the 1926 Slavery Convention is to be found at Article 7 which requires State Parties to provide the Secretary-General of the League of Nations and each other, laws and regulations which they have enacted so as to ensure the application of the Convention. For those States which are party to the 1953 Protocol amending the Slavery Convention or those States which became party to 1926 Slavery Convention after the coming into force of the Protocol in July 1955, the duties and functions which had been vested in the Secretary-General of the League of Nations are deemed to be carried over by the Secretary-General of the United Nations, thus the obligations of Article 6 persist to this day.73

70 Miers, n. 36, p. 182. 71 League of Nations, Slavery Convention, Geneva, September 25th, 1926, C.586.M.223. 1926.VI, 16 October 1926; as found in Publications of the League of Nations, VI.B. Slavery. 1926. VI.B.7. Note that Article 3 is reproduced in its entirety in the Appendices. 72 Id. 73 Protocol Amending the Slavery Convention Signed at Geneva on 25 September 1926, December 7, 1953. See United Nations General Assembly, Resolution 794 (VIII), Transfer to the United Nations of functions and powers exercised by the League of Nations under the Slavery Convention of 25 September 1926, 23 October 1953.



the slave trade83

The United Nations International Law Commission Contemporary international law governing the slave trade was estab­ lished, in essence, by the work of the United Nations International Law Commission and the negotiation which led to the establishment of the 1958 Convention on the High Seas. That said, as the United Nations moved to codify large areas of international law, the issue of slave trade was not only considered within the domain of the law of the sea, but was consid­ ered as a part of human rights law in the negotiations leading to the International Bill of Rights and in general international law as part of the process leading to the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. While considerations within the United Nations Commission on Human Rights during 1947 and 1948 would focus – where human exploita­ tion was concerned – primarily on the issue of slavery, the slave trade gained mention very late in the drafting process of the Universal Decla­r­ ation. Although the inclusion of ‘slavery’ in Article 4 of the Declaration would be of great significance during the negotiation process of the 1956 Supplementary Convention, where the ‘slave trade’ was concerned, it hardly registered in 1956. Article 4 of the Universal Declaration on Human Rights reads: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. While the negotiation of the Universal Declaration of Human Rights would have little influence on contemporary international law related to the slave trade, the work of the International Law Commission on the issue can be considered as its true genealogical source.74 At its inaugural session, the newly established International Law Com­ mission undertook, as its first order of business a “survey of international law with a view to selecting topics for codification”. Of a list of twenty-five topics the International Law Commission considered that it should give priority to three: statelessness, consular intercourse and immunities, and the regime of the high seas. Where the last of these topics is concerned, the Commission considered “the question of the régime of the high seas seemed suitable for rapid codification” and elected Mr. J.P.A. François of the Netherlands as Special Rapporteur. In his first report, François made a

74 The provisions of the International Covenant on Civil and Political Rights, signed in 1966, would not factor into the evolution of the law governing the slave trade. Article 8(1) of the Covenant reads: “No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited”.

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distinction between the slave trade and the policing of the seas (re: right to visit).75 This distinction proved to be of great significance as it held from 1950 onwards and manifests itself in the two articles found in both the 1958 Convention on the High Seas and the 1982 United Nations Convention on the Law of the Sea. Where the slave trade is concerned, in his first Report on the High Seas, François recounted the history of the suppression of the slave trade from the Final Act of the Brussels Conference to the Slavery Convention of 1926 and asked whether States might “be asked whether they consider it appro­ priate to insert provisions aiming at an extension of the possibilities of maritime supervision in this matter”.76 While Georges Scelle “felt that no purpose would be served by reviving that archaic question”, Manley Hudson, asked “whether it would be possible to formulate […] a general principle applicable to ships engaged in the slave trade”.77 In looking into the matter François considered whether the slave trade should be assimi­ lated to piracy and responded in the negative: If the slave trade were regarded as an act of piracy, any vessel suspected of the offence could be stopped by any warship and conducted to one of the latter’s ports to be tried by the national courts. Part at least of the ground for internationalizing the crime of piracy is that the acts occur on the high seas and that in many cases there are no relations between the pirates and a given country. The slave trade, on the other hand, takes place between two given countries. Since both these countries are bound to co-operate in repressing the slave trade, internationalization – meaning that the vessel may be conducted to any port for trial by the local courts – does not appear appropriate.78

The Special Rapporteur then asked whether the maritime zone estab­ lished by the Final Act of the Brussels Conference of 1890 should be expanded to cover the “whole extent of the high seas”. With this in mind, François put forward his suggestions which were then considered by the Commission with the input of States and became Article 37 of the International Law Commissions’ Articles on the Law of the Sea, which read: 75 See United Nations, General Assembly, International Law Commission, Report of the High Seas by J.P.A. François, UN Doc A/CN.4/17, 17 Match 1950. 76 Id., p. 17. 77 I United Nations, General Assembly, International Law Commission, Report of the International Law Commission to the General Assembly, UN Doc. A/1316, Yearbook of the International Law Commission, Vol. II, 1950, p. 384. 78 United Nations, General Assembly, International Law Commission, Second Report of the High Seas by J.P.A. François, Rapporteur, UN Doc A/CN.4/42, 10 April 1951, p. 26.



the slave trade85 Every State shall adopt effective measures to prevent and punish the trans­ port of slaves in ships authorized to fly its colours, and to prevent the unlaw­ ful use of its flag for that purpose. Any slave who takes refuge on board any ship, whatever its colours, shall ipso facto be free.79

The Commission provided the following commentary: The duty of States to prevent and punish the transport of slaves in ships authorized to fly their colours is generally recognized in international law. The General Act of Brussels of 2 July 1890 stipulates that any slave taking refuge on board a warship or a merchant ship shall be free. The Commission has broadened the wording so as not to exclude government ships other than warships.80

Where the right to visit so as to suppress the slave trade is concerned, François considered that the “only police measure allowed in time of peace by international law is the right of approach, that is to say the right to ascertain the identity and nationality of the vessel, but not the right to check nationality by examination of ship’s papers, and not a fortiori, the right of search”. The Special Rapporteur went on to note that the issue had lost much of its importance as “wireless telegraphy has almost elimi­ nated the various reasons for which formerly vessels were induced to make material contact with each other on the high seas”.81 Noting that provisions related to a right to visit were treaty based, François stated that: States were not prepared to go nearly so far in the case of the slave trade as in the case of piracy. In the one case they had limited the right of approach to specified zones, but not in the other. He [ François ] did not think that the two questions could be lumped together, unless the law governing the slave trade were substantially widened, in which case the Commission would no longer by codifying existing law.82

François continued, saying that unlike the slave trade, piracy “was univer­ sally recognized as a crime”.

79 United Nations, General Assembly, International Law Commission, Draft Report of the International Law Commission covering the work of its Eight Session, UN Doc. A/CN.4/L.68/Add.3 19 June 1956, p. 13. 80 United Nations, General Assembly, International Law Commission, Report of the International Law Commission coving the work of its Eleventh Session, UN Doc. A/3159, Yearbook of the International Law Commission, 1956, Vol. II, pp. 281–282. 81 Report of the High Seas, n. 75p. 12. 82 United Nations, General Assembly, International Law Commission, Yearbook of the International Law Commission, Vol. I, (Summary Record of the Third Session: 16 May – 27 July 1951), UN Doc. A/CN.4/SER.A/1951, 21 October 1957, p. 350.

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chapter two So far as concerned the slave trade, the right to stop a ship was limited to a specific maritime zone and had, as was well known, been the source of many difficulties. Some States, among them France, had never been willing to permit unrestricted boarding of vessels suspected of being engaged in the slave trade.83

Despite this, Hudson sought to widen the application of the right to visit to suppress the slave trade beyond specific maritime zones, calling instead for the principle that the “high seas might not be used by vessels of any State for the transportation of slaves”.84 This proposal was accepted, as was the ability to go beyond a simple right to visit to verify nationality by pro­ viding for the possibility of search. These modifications were integrated into Article 46 of the International Law Commissions’ Articles on the Law of the Sea, which reads: 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant vessel on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:  (a) that the vessel is engaged in piracy; or  (b) That while in the maritime zones regarded as suspect in international treaties for the abolition of the slave trade, the vessel is engaged in that trade; or  (c) That while flying a foreign flag or refusing to show its flag, the vessel is, in reality, of the same nationality as the warship. 2. In the case provided for in sub-paragraphs (a), (b) and (c) above, the warship may proceed to verify the vessel’s title to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ves­ sel. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the vessel, which must be car­ ried out with all possible consideration. 3. If the suspicions prove to be unfounded and provided that the vessel boarded has not committed any acts to justify them, it shall be compen­ sated for any loss sustained.85

Accompanying these provisions was the following Commentary touching on the slave trade: (1) The principle of freedom of the seas implies that, generally speaking, a merchant ship can only be boarded on the high seas by a warship flying 83 Id. 84 Id., p. 351. 85 See United Nations, General Assembly, International Law Commission, Summary of replies from Governments and Conclusions of the Special Rapporteur, UN Doc. A/CN.4/97/ Add.1 to 3, as found in Yearbook of the International Law Commission, 1956, Vol. II, p. 20.



the slave trade87 the same flag. International law, however, admits certain exceptions to this rule, namely, cases where there is reasonable ground for suspecting:    […]    (ii) That the ship is engaged in the slave trade. The right to visit in this latter case was recognized by the treaties for the repression of slav­ ery, especially the Brussels Act of 2 July 1890. For purposes of repres­ sion, this Act assimilated slavery to piracy, with the proviso that the right in question could only be exercised in certain zones clearly defined in the treaties. The Commission felt that it should follow this precedent, so as to ensure that the exercise of the right of control would not be used as a pretext for exercising the right of visit in waters where the slave trade would not normally be expected to exist;    […] (2) In these three cases the warship is authorized to request a ship not flying a flag to show its colours. If the suspicion is not allayed the warship may proceed to check the ship’s papers. To this end it must send a boat to the suspect ship. As a general rule, the warship may not require the mer­ chant ship to put out a boat to the warship. That would be asking too much of a merchant ship, and a ship’s papers must not be exposed unnecessarily to the risk of getting lost. If the examination of the mer­ chant ship’s papers does not allay the suspicions, a further examination may be made on board the ship. Such examination must in no circum­ stances be used for purposes other than those which warranted stop­ ping the vessel. Hence the boarding party must be under the command of an officer responsible for the conduct of his men. (3) The State to which the warship belongs must compensate the merchant ship for any delay caused by the warship’s action, not only where the ship was stopped without reasonable grounds but in all cases where sus­ picion proves unfounded and the ship committed no act calculated to give rise to suspicion. This severe penalty seems justified in order to pre­ vent the right of visit being abused.86 […]

This Commentary along with the provisions on the right to visit, and those related to the slave trade would later be considered in Geneva during the 1958 United Nations Conference on the Law of the Sea. However, before moving forward, it is essential to back up as far as a 1949, to the request by the United Nations General Assembly to the Economic and Social Council to study the problem of slavery to appreciate the drafting process of 1956 Supplementary Convention which established two provisions related to the suppression of the slave trade. 86 United Nations, General Assembly, International Law Commission, Report of the International Law Commission covering the work of its Eleventh Session, UN Doc. A/3159, Yearbook of the International Law Commission, 1956, Vol. II, p. 284.

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The 1956 Supplementary Convention Much like the provisions of Article 3 of the 1926 Slavery Convention nego­ tiated some thirty years previously, Article 3 in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, as originally proposed by the United Kingdom, sought once more to assimilate the slave trade at sea to piracy. Just as in 1926, such attempts were unsuccessful. At a time when the Cold War was in full evidence and the logjam of United Nations membership had just been broken with newly independent States making their pres­ ence felt, the United Kingdom found it rather difficult to be seen as encroaching in an area of strategic importance and seeking to gain a uni­ versal right to police ‘native vessels’. Instead, what would emerge in the 1956 Supplementary Convention was a regime which removed the ability of States to act against a third State’s merchant navy, via a right to visit, with provisions requiring States to police not only their own vessels, but also aircraft. States thus distanced themselves from undertaking multilat­ eral action in favour of creating a set of unilateral obligations; the type of transnational obligations manifest in international human rights law. The 1956 Supplementary Convention, as already noted started from a 1949 request by the United Nations General Assembly to the Economic and Social Council,87 and evolved through the work of an ad hoc commit­ tee meant to, inter alia, “survey the field of slavery and other institutions or customs resembling slavery” and “suggest methods of attacking these problems”.88 In its final Report of 1951, the Ad Hoc Committee on Slavery recommended: That slave raiding and slave trading on the high seas should be declared to be a crime similar to piracy in international law and that States adhering to the Supplementary Convention should bind themselves to enact laws within a prescribed time declaring that all the attributes of, and penalties for, piracy shall attach to them.89

This passage was rather important as, in 1953, the Economic and Social Council requested the Secretary-General to consult States as to “the desir­ ability of a supplementary convention” to the 1926 Slavery Convention “and its possible contents”.90 87 United Nations, General Assembly, Resolution 278 (III), 13 May 1949. 88 United Nations, Economic and Social Council, Resolution 238(IX), 20 July 1949. 89 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1988, E/AC.33/13, 4 May 1951, p. 20, para. 2. 90 See United Nations, Economic and Social Council, Resolution 475 (XV), 27 April 1953.



the slave trade89

In February 1954, the United Kingdom, pointing to the above passage of the Ad Hoc Committee, put forward a draft supplementary convention which included provisions related to the slave trade which assimilated it to piracy.91 However, before it could be considered, the United Kingdom amended the text, saying that it had taken into consideration “construc­ tive comments from various quarters” and had re-worked its provisions with “special regard to the draft articles prepared by the International Law Commission on the regime of the high seas”.92 As such the United Kingdom no longer directly equated slavery and piracy in the provisions of its new sub-paragraph (a), though it sought to retain a right to visit and its assimi­ lation of the slave trade to piracy in sub-paragraph (b): (a) The act of conveying or being concerned in the conveyance of slaves, or persons intended to be dealt with as slaves, on the high seas shall be a criminal offence under the laws of the Parties to this Convention, and persons convicted thereof shall be liable to be punished as for piracy.93 (b) While in the maritime zone indicated in international treaties for the abolition of the slave trade as being suspect, warships or military air­ craft under the control of Parties to this Convention shall have the same rights of visit in relation to vessels suspected on reasonable ground of being engaged in such acts as they have in relation to vessels so sus­ pected of being engaged in acts of piracy.94

Despite this amendment, the British draft did not find favour with the Ad Hoc Drafting Committee. In fact when the 1956 Draft Convention was considered at the level of the Economic and Social Council, it became clear that a number of States took issue with the inclusion of provisions

91 Article 2 of the 1954 the British Draft Convention reads: (a) The act of conveying slaves on the high seas or slave raiding shall be deemed to be an act of piracy, and subject to appropriate penalties. (b) Public vessels under the control of parties to this Convention shall have the same rights in relation to vessels or persons engaged in such act as they have in relation to vessels and persons engaged in acts of piracy. (c) All slaves so captured shall be set at liberty. See United Nations, General Assembly Economic and Social Council, Slavery: Consul­ tations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 3. 92 United Nations, General Assembly Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifth Meeting, 18 January 1956, UN Doc. E/AC.43/SR.5, 10 February 1956, p. 4. 93 United Nations, General Assembly Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude, United Kingdom: Amendment to Article 2, UN Doc E/AC.43/L.6, 17 January 1956. 94 Id.

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related to the slave trade transpiring in a specific zone being included in the text. In the shadow of an impending crisis over the Suez Canal, the Egyptian Representative objected to this Article, saying that it was “irrelevant to the purposes of the convention”.95 The representatives of the Union of Soviet Socialist Republics, Indonesia, Czechoslovakia, and Yugoslavia also mentioned their unwillingness to accept such provisions, Yugoslavia noting its concerns based on the outdated Brussels Act which, if included in a treaty, would “imply the assumption that no changes had occurred in that specific part of the world to which it referred. In point of fact, new independent States had been established there and the feeling of their peoples could not but be taken into account”.96 Such discord was recognised at the 1956 United Nations Conference of Plenipotentiaries meant to draft a supplementary instrument to the 1926 Slavery Convention wherein it became quite evident that provisions touching on the slave trade were “unacceptable to a large number of coun­ tries”.97 In what was clearly a politically charged environment wherein the East/West and North/South cleavages were apparent, Mr. Adeel, the Sudanese Representative, spoke of “legal, political and moral reasons” for deleting the provisions allowing for a right to visit. Legally, he argued, the use of force was controlled by the UN Security Council and if the Convention was to create policing powers, it would create a “superstruc­ ture” above and beyond the United Nations which would conflict with Article 103 of the Charter.98 Politically, he said that “no such fantastic provision appeared in the 1926 Convention; its attempted introduction, which would have been abhorrent to the Contracting Parties to the 1926 Convention, was a hypocritical anachronism thirty years later”. Finally, morally, it was psychologically wrong to seek to single out a spe­ cific area for military reason as it would be “tantamount to an accusation that slavery and institutions and practices similar to slavery existed 95 Economic and Social Council, Official Record, Twenty-first Session, Agenda Item 12 – Slavery, 916 Meeting, 27 April 1956, p. 89. 96 Id., p. 93. 97 Mr. Chistyakov, Representative of the Union of Soviet Socialist Republics. See United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fifth Meeting, 16 August 1956, UN Doc E/CONF.24/SR.5, 11 November 1958, pp. 5–12. 98 Article 103 of Charter of the United Nations reads: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other interna­ tional agreement, their obligations under the present Charter shall prevail.



the slave trade91

solely, or mainly, in that area”.99 He continued: “To attempt to impose civilization by force would make a mockery of the very concept of humanitarianism”.100 Egypt for its part, basing itself on the work of the International Law Commission, did propose a paragraph which removed the ability of States acting against each other’s merchant navy via a right to visit, and instead proposed that States police their own vessels. The Egyptian Representative, Mr. Abdel-Ghani, noted “that the draft articles relating to the regime of the high seas prepared by the International Law Commission distinguished between piracy and the slave trade, a separate article being devoted to each. The slave trade was placed under the jurisdiction of States, while piracy was regarded as a matter of international concern. That was a legiti­ mate distinction, since slavery could most properly be regarded as a viola­ tion of human rights, and hence as a matter to be dealt with by national legislation”.101 It was this Egyptian approach which finally won the day and was included in Article 3 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which reads:  1. The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties. 2. (a) The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish persons guilty of such acts or of using national flags for that purpose.     (b) The States Parties shall take all effective measures to ensure that their ports, airfields and coasts are not used for the conveyance of slaves.   99 Conference of Plenipotentiaries, Summary Record of the Fifth Meeting, n. 97, pp. 5–6. 100 United Nations, Economic and Social Council, United Nations Conference of Pleni­ potentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twenty-Second Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, pp. 7–9. For his part, the French Representative, Mr. Giraud, said there “was no point in disguis­ ing the facts beneath the cloak of hypocrisy. The truth was that not all States were in the same position where slavery was concerned” saying that “the zones established by the 1890 General Act of Brussels were those in which the slave trade at sea still persisted”. 101 United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Sixth Meeting, 16 August 1956, UN Doc E/CONF.24/SR.6, 11 November 1958, p. 5.

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chapter two 3. The States Parties to this Convention shall exchange information in order to ensure the practical co-ordination of the measures taken by them in combating the slave trade and shall inform each other of every case of the slave trade, and of every attempt to commit this criminal offence, which comes to their notice.

Beyond these provisions dealing with the suppression of the slave trade, the 1956 Supplementary Convention includes, at its Article 4, the follow­ ing provision: “Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free.” The legislative history of this provision is a rather curious one. As originally proposed, the provi­ sions related to the slave trade in the 1954 British Draft Convention included a provision mandating that “all slaves so captured shall be set at liberty”.102 The Anti-Slavery Society brought to the attention of the 1956 Ad Hoc Committee of the UN Economic and Social Council the work of the International Law Commission on the regime of the high seas which included a provision which stated that “any slave who takes refuge on board a warship or a merchant vessel shall ipso facto be free”; and Article 28 of the 1890 General Act of Brussels Conference of 2 July 1890 which reads: “Any slave who takes refuge on board a ship of war bearing the flag of one of the signatory powers, shall be immediately and defini­ tively set free”.103 Despite this, during the deliberations of the Ad Hoc Committee, the United Kingdom proposed an amendment with regard to the overall pro­ visions on the slave trade which, in a rather understated manner, noted: “differed substantially from the original”.104 Amongst its provisions, the proposal stated that “vessels and slaves captured in accordance with this Article shall be brought before a competent court for adjudication”.105 Mr. Scott-Fox, the British Representative, explained this provision on two grounds: “firstly, a competent authority had to establish that they really were slaves and not persons in lawful custody; secondly, the right of 102 United Nations, Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 3. 103 See United Nations, Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 31. 104 United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fourth Meeting, 17 January 1956 UN Doc. E/AC.43/SR.4, 9 February 1956, p. 8 105 The Draft Supplementary Convention, n. 103.



the slave trade93

ownership over the slaves had to be terminated in a legal manner in order to ensure that it was not reasserted. Such matters were best resolved by a court of law, where they would be duly recorded”.106 This provision was heavily criticised by the Representative of the Union of Soviet Socialist Republics, Mr. Nikolaev, who said that it “implied that a slave would have to prove to the court that he was a slave before he could be set at liberty, which did not make much sense”.107 To bring the point home, Mr. Nikolaev stated that it “would seem strange to public opinion that, under a conven­ tion drawn up by eminent jurists under the United Nations auspices, slaves would have to prove that they were free men in a court of law by means of a possible lengthy procedure, before they could gain their freedom”. That, in essence, the proposed “text turned the clock back to before 1890”.108 When put to a vote, the British proposal was defeated. At 1956 United Nations Conference of Plenipotentiaries on a Supple­ mentary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, the delegations reverted to language more in tune with the International Law Commission’s draft article included in the regime of the high seas. Where discussion did take place, was whether the provisions should hold whether at sea, land or air. While language along these lines was considered, it was noted that “in practice it was not possible for slaves to take refuge on aircraft”.109 Finally, at the closing session of the 1956 United Nations Conference, it was agreed that as this provision was of such great importance, it should be decou­ pled from the provisions of Article 3 and should appear as a stand alone article, and thus the provision – Any slave who takes refuge on board any vessel of a State Party to this Convention shall ipso facto be free – became Article 4 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

106 United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Fifth Meeting, 18 January 1956 UN Doc. E/AC.43/SR.5, 10 February 1956, pp. 4–5. 107 United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Sixteenth Meeting, 27 January 1956, UN Doc. E/AC.43/SR.16, 27 February 1956, p. 4. 108 See United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eighteenth Meeting, 31 January 1956, UN Doc. E/AC.43/SR.18, 29 February 1956, pp. 11. 109 United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the TwentySecond Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, pp. 7–9.

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The obligations of States party to the 1956 Supplementary Convention with regard to Article 3, mandate that the slave trade be made a criminal offence under domestic law, liable to ‘very severe penalties’. Beyond taking effective measures to suppress the slave trade on ships, aircraft, ports, airfields and on their coasts, State Parties are meant to cooperate through exchange of information so as to co-ordination measures taken to sup­ press the trade, while to keep each other informed of actual cases of the slave trade which come to their attention. To buttress the element of coop­ eration and communication, Article 8 creates general obligations. It man­ dates that State Parties cooperate not only with each other but also with the United Nations “to give effect to the foregoing provisions”; and to send to the UN Secretary-General “copies of any laws, regulations and adminis­ trative measures enacted or put into effect to implement the provisions of this Convention”. While any communication was to be forwarded to the other Parties and to the Economic and Social Council, the Council was not to act as a supervisory body, instead information was to constitute “part of the documentation for any discussion which the Council might undertake with a view to making further recommendations for the abolition of slav­ ery, the slave trade or the institutions and practices which are the subject of this Convention”.110 In closing our considerations of the 1956 Supplementary Convention a quick mention might be made of the definition of slave trade as, the definition established in 1926 was once more considered in 1956, though it might be said that during the move towards negotiations it was deemed “accurate and adequate”.111 The definition of the slave trade as it appears in the 1956 Supplementary Convention was modified in two manners, the first by amendment, where in the final clause it reads: “by whatever means of conveyance”. This amendment was agreed to so as to reflect the possibil­ ity that the slave trade might not only take place on land and at sea but also by air. The second modification appears to have been made by stealth, as there is no recorded agreement to such a change in the negotiations at the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions 110 Article 8, see United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23. 111 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1988, E/AC.33/13, 4 May 1951, p. 5.



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and Practices Similar to Slavery. In the 1926 Convention, the definition of the slave trade reads in part “all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged; while in the 1956 Supplementary Convention, the same provision states: “all acts of disposal by sale or exchange of a person acquired with a view to being sold or exchanged”. Whether by design or by default, the provisions of 1956 Supplementary Convention, carry the possibility that a person need not have been a slave before they were acquired with a view to being sold or exchanged. As a result, the 1956 provisions widen the application of the provision related to the slave trade, taking into account situations where, unbeknownst, a person, say by deceit, is acquired with a view to being enslaved through some type of sale or transfer. As a result of these two modifications, the definition of ‘slave trade’ as found at Article 7(c) of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery reads: ‘Slave trade’ means and includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a person acquired with a view to being sold or exchanged; and, in general, every act of trade or transport in slaves by whatever means of conveyance.112

The 1958 Convention on the High Seas and the 1982 Law of the Sea Convention While a limited number of changes would take place to the provisions on the slave trade as found in the International Law Commission’s Articles concerning the Law of Sea during the drafting of the Convention on the Law of the Sea of 1958, a fundamental change which did manifest itself was given expression during the 1956 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. Picking up on a 1956 suggestion by the Union of South Africa which was not accepted by the International Law Commission – to have the rationae loci of the right to visit to suppress the slave trade at sea extended beyond a specific zone to the high seas – this find more favour during the 1958 United Nations Conference on the Law of the Sea. In 1957, the Sixth 112 Final Act, n. 110.

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Committee (Legal Questions) of the General Assembly endorsed the International Law Commission’s Articles concerning the Law of Sea; and the United Nations General Assembly called for an international diplo­ matic conference to negotiate the various provisions developed by the Commission.113 The United Nations Conference on the Law of the Sea met in Geneva in 1958. Turning first to Article 37 of the International Law Commission Articles concerning the Law of Sea, which it will be recalled reads: Every State shall adopt effective measures to prevent and punish the trans­ port of slaves in ships authorized to fly its colours, and to prevent the unlaw­ ful use of its flag for that purpose. Any slave who takes refuge on board a warship, whatever its colours, shall ipso facto be free.114

That provision, but for substitution of the words ‘flag’ for ‘colours’115, was adopted unopposed by the plenary session of the Conference as Article 13 of the Convention on the High Seas.116 Where the right to visit is concerned, during the 1958 meeting of the Second Committee of the Conference of the Law of the Sea – charged with considering the general regime of the high seas – it was proposed that such a provision prepared by the International Law Commission be excluded from the text. The Representative of the short-lived United Arab Republic (the union between Syria and Egypt which existed from 1958 to 1961) noted that at the diplomatic conferences which negotiated the 1919 Peace Treaty of the Saint Germain-en-Laye and the 1926 Slavery Conven­ tion, provisions “similar to that of sub-paragraph 1(b) of article 46 had been heavily defeated. The clause in question would be susceptible to abuse, and it was therefore a potential source of international disputes”.117

113 United Nations, General Assembly, Resolution 1105 (XI): International Conference of Plenipotentiaries to examine the Law of the Sea, 21 February 1956, Resolutions adopted by the General Assembly from 12 November 1956 to 8 March 1957 during its Eleventh Session, UN Doc. A/3572, p. 54. 114 United Nations, International Law Commission, Draft Report of the International Law Commission covering the work of its Eight Session, UN Doc. A/CN.4/L.68/Add.3 19 June 1956, p. 13. 115 United Nations, United Nations Conference on the Law of the Sea, Second Committee, Article 37, United States of America: Proposal, UN Doc. A/CONF.13/C.2/L.77, 28 March 1958. 116 United Nations, United Nations Conference on the Law of the Sea, Convention on the High Seas, Official Records Volume II: Plenary Meetings Committee, Annex, UN Doc. A/CONF.13/L.53, p. 137. 117 United Nations, United Nations Conference on the Law of the Sea, Official Records Volume IV: Second Committee (High Seas: General Regime), UN Doc. A/CONF.13/40, p. 80.



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When the provision – which reads as follows – was considered by the Conference, its proposed deletion was not accepted. 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant vessel on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:  […]     (b) That while in the maritime zones regarded as suspect in international treaties for the abolition of the slave trade, the vessel is engaged in that trade; or […]

Instead what was accepted was a proposal by the Union of South Africa which was more nuanced as it did not seek to exclude the provision from the Convention, but instead to amend the phrase ‘while in the maritime zones treated as suspect … of the slave trade’ […] to read; ‘That the ship is engaged in the slave trade; or’.118 Thus, in full, Article 22 of the Convention on the High Seas of 1958; reading as follows: 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the high seas is not justified in boarding her unless there is reasonable ground for suspecting:  (a) that the ship is engaged in piracy; or  (b) That the ship is engaged in the slave trade; or  (c) That while flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the case provided for in sub-paragraphs (a), (b) and (c) above, the war­ ship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may pro­ ceed to a further examination on board the ship, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any acts to justify them, it shall be compen­ sated for any loss or damage that may have been sustained.119

As a result of this new provision, the maritime zone along the East Coast of Africa, centred on the Indian Ocean, the Persian Gulf and the Red Sea

118 United Nations, United Nations Conference on the Law of the Sea, Official Records Volume II: Plenary Meetings Committee, UN Doc. A/CONF.13/38, p. 22. 119 United Nations, United Nations Conference on the Law of the Sea, Convention on the High Seas, Official Records Volume II: Plenary Meetings Committee, Annex, UN Doc. A/CONF.13/L.53, p. 137.

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as mapped out on page 74, which had existed since the Final Act of the 1890 Brussels Conference, was no more. Moving now towards the 1982 United Nations Law of the Sea Convention; in 1971, following on from the previous work by its Ambassador, Arvid Pardo, Malta put forward a Draft Ocean Treaty which sought to include a provision which would enlarge the scope of Article 13 of the 1958 Convention on the High Seas by not only touching on the slave trade but also slavery and lesser servitudes. That draft article read: 1. Every State has the obligation to adopt effective measures to prevent and punish slavery and conditions akin to slavery in national ocean space. 2. Every State has the obligation adopt effective measures to prevent and punish the transport of slaves in ships authorized to fly its colours, and to prevent the unlawful use of its flag for that purpose. Any slave or person in condition akin to slavery, taking refuge on board any warship, whatever its colours, shall, ipso facto, be free.120

As Satya Nandan and Shabtai Rosenne write, in their commentary on the 1982 United Nations Convention on the Law of the Sea, “no substantive formal or informal proposals concerning the text” were made during the Third United Nations Conference on the Law of the Sea, that is: between 1973 and 1982.121 That being said, when in 1974, a text was presented by the Second Committee to the Third Conference on the Law of the Sea, the provisions touching on the slave trade considered were not those drafted by Malta, but those of Article 13 of the 1958 Convention on the High Seas. It was these provisions which, with only minor modification, would be incorporated as Article 99 of the United Nations Convention Law of the Sea of 1982. Therefore, the contemporary law touching on the slave trade at sea, as incorporated in the Article 99 of the United Nations Convention on Law of the Sea of 1982, entitled: ‘Prohibition of the transportation of slaves’, reads: Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free.

120 United Nations, General Assembly, Ad Hoc Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of Nations Jurisdiction, Draft Ocean Space Treaty: Working paper submitted by Malta, UN Doc. A/AC/138/53, 23 August 1971, p. 18. Emphasis added. 121 Satya Nandan and Shabtai Rosenne, United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. III, 1995, p. 180.



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Where the right to visit to suppress the slave trade is concerned, the sub­ stance of the provisions of Article 22 of the 1958 Convention on the High Seas was – like that of the slave trade at sea – accepted at the Third Conference on the Law of the Sea. What emerged was Article 110 of the United Nations Convention on the Law of the Sea of 1982 – The Right to Visit – which reads: 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:       (a)  the ship is engaged in piracy;      (b)  the ship is engaged in the slave trade;     (c)  the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;      (d)  the ship is without nationality; or       (e)  though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all pos­ sible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compen­ sated for any loss or damage that may have been sustained. 4. These provisions apply mutatis mutandis to military aircraft. 5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.

To understand these obligations as set out in the 1982 Law of the Sea Convention regarding the right to visit ships engaged in the slave trade, it should first be recognised that this provision (like that of Article 99) is found within the Part of the Convention related to the high seas: that area beyond the jurisdiction of a coastal States. With regard to the right to visit, this would be beyond the twelve nautical miles of what is termed the ter­ ritorial sea. The right to visit is an exception to Grotian inspired freedom of the high seas which is the default position: that ‘the high seas are open to all States’, with ‘freedom of navigation’.122

122 Article 87, United Nations Law of the Sea Convention, 1982.

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With regard to the provisions of Article 110, mention in paragraph (1) of ships which have immunity from visit ‘in accordance with articles 95 and 96’, are in fact foreign warships and State ships which are in governmental, non-commercial, use. Thus, the right to visit can be exercised by a warship (but also a military aircraft, or other clearly marked State ship or aircraft) on a foreign, merchant or private, ship on the high seas. While the regime allowing for the prosecution of slavers never materialised in multi­ lateral  instruments from the 1890 General Act of the Brussels Conference onwards, such provisions do exist where piracy is concerned. Article 105 of the Law of the Sea Convention allows for the seizure of a pirate ship, the arrest of persons and confiscation of property on board. Jurisdiction in such cases is with the national courts of the seizing State. Likewise, Article 109 allows for the prosecution of individuals involved in unauthorized broadcasting as well as the seizure of their ‘broadcasting apparatus’, via the Right to Visit as set out in Article 110(1)(c) of the Law of the Sea Convention. Here, unlike piracy, where no connection need be estab­ lished, the prosecution of an individual involved in ‘pirate’ broadcasting’ can only take place before a court, where one of the following five jurisdic­ tional links can be sustained, the courts of “(a) the flag State of the ship; (b) the State of registry of the installation; (c) the State of which the per­ son is a national; (d) any State where the transmissions can be received; or (e) any State where authorized radio communication is suffering interference”.123 This then leaves us with Articles 110(1)(b) the slave trade; (d) stateless ship; and (e) what is in essence a ship which is of the same nationality as the warship seeking to visit. With regard to the last of these, a warship will have an independent right to visit ships of its own nationality established if not under municipal legislation, then through sovereign prerogative, as it is the State which will fix the conditions for the grant of nationality to its ships. Where a ship is stateless, that is: it does not purport to benefit from the nationality of any State, it is open to visit by warships of any State ipso facto. Now for the right to visit ships suspected of engagement in the slave trade. The conditions of such visit are found exclusively within the confines of Article 110 of the Law of the Sea Convention. These conditions can be set out in the following manner: warship A (let us say an Algerian warship) can, if there is ‘reasonable grounds; to suspect that a merchant 123 Article 109, United Nations Law of the Sea Convention, 1982.



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ship B (let us say a Bulgarian ship) plying the high seas is engaged in the slave trade can “verify the ship’s right to fly its flag”. This is done by sending a boat over under the command of an officer of the Algerian warship. In verifying the papers, the officer will seek to ascertain whether there is a genuine link between the Bulgarian ship and the flag it is flying. If there is no such link, and if in fact the ship turns out to be of Algerian nationality, then Algerian domestic law will dictate what is to transpire if slaves are found on board. If, however, the Algerian officers having considered the documents provided by the Bulgarian captain, remains suspicious, he or she “may proceed to a further examination on board the ship”, to seek to ascertain the nationality of the ship (but not to look for slaves); this is to be carried out “with all possible consideration”. If the officer is satisfied that the ship is in fact Bulgarian, the ship’s owners would be “compensated for any loss or damage that may have been sustained”. However, this compensation is only to be paid, if – and this ‘if’ is funda­ mental to understanding Article 110 of the Law of the Sea Convention – the Bulgarian ship was not involved in the slave trade. Article 110(3) reads: “If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compen­ sated for any loss or damage that may have been sustained”. If the Bulgarian ship (having demonstrated its genuine link to Bulgaria) is carrying slaves, the Law of the Sea Convention prescribes no action. Instead, it is for the Bulgarian authorities to deal with the issue as, Article 99 of the Law of the Sea Convention simply prescribes that “Every State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag”. Once on board the Bulgarian ship, the Algerian officer holds no right beyond the confirmation of the nationality of the ship: no right to search the ship for slaves, no right to ascertain if individuals on board are enslaved; or even, witnessing individuals chained to the afterdeck, to free those individuals or place any of the crew of the Bulgarian ship under arrest. Despite Malcolm Shaw’s assertion that “Under article 110, warships may board foreign merchant ships where they are reasonably suspected of engaging in the slave trade; offenders must be handed over to the flag state for trial”;124 this simply does not hold. Better is Malcolm Evans’ reading of the provision, noting that as opposed to the “rather heavy-handed approach to radio broadcasting”, the slave trade, inter alia, is handled in a 124 Malcolm Shaw, International Law, 2008, p. 616.

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“comparatively feeble manner”. Evans goes on to say that “it remains difficult to see why those involved in the trade, and the vessels itself, should not be capable of arrest under such circumstances without the express authorization of the flag State”.125 But, alas, this is what is pre­ scribed by the Law of the Sea Convention: no action beyond ascertaining the right to fly a flag. With regard to the overall obligations regarding the suppression of the slave trade at sea, Réne-Jean Dupuy and Daniel Vignes write: “With regard to a ship engaged in the transportation of slave, the 1982 Convention, those of 1958, and the specialized conventions (the Convention concerning Slavery of 25 September 1926 and the Supple­ mentary Convention of 1956 of 7 September 1956) provide for no other powers against foreign ships [but for the right to visit]. The enforcement of the principles provided for in these Conventions is conferred solely to the flag State”.126 What then of a real-life situation where an officer visiting a ship finds human beings chained to the afterdeck? Is there not a jus cogens impera­ tive to take these individuals – by force if need be – onboard his or her warship where they would be, in taking refuge, ipso facto free? The answer, it would seem, should be answered in the negative. Putting aside a breach of the Article 110 of the Law of the Sea Convention, as an agent of the State, as member of the armed forces, the officer by acting within the jurisdic­ tion of a foreign States would approach very close, if not cross the line of committing an act of aggression.127 Although the analogy is not perfect, it would be tantamount to a military officer, travelling to foreign State to free slaves (by force if necessary) and transporting them back over an interna­ tional boundary. One would recognise this as a breach of sovereignty, an unfriendly act, and a recipe for an escalation in the use of force. Better would be to shine the light of day on the situation, by the warship report­ ing through proper channels to, in our fictitious case, the Bulgarian authorities and seeking to agree, bilaterally, on what the best course of action might be taken.

125 Malcolm Evans, “The Law of the Sea”, Malcolm Evans (ed.), International Law, 2008, p. 639. 126 Réne-Jean Dupuy and Daniel Vignes (eds.) A Handbook of the New Law of the Sea, Volume 2, 1991, p. 853. 127 See Article 3(a), Definition of Aggression, United Nations General Assembly Resolution 3314, 14 December 1974.



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Finally, while the application of Article 110 remains hypothetical, the 2001 case of the MV Etireno reminds us that the possibility remains into the Twenty-First Century that the slave trade at sea may well transpire. That case which drew international attention related to two dozen children from Benin, Guinea, Senegal and Togo, some as young as four years of age, who were found on a Nigerian-registered ship which had been at sea for more than two weeks unable to reach its destined of Gabon where the children were meant to work; landing instead Benin.128 For the non-governmental organisations harbouring the children, what “clearly emerged” from the children was “that for the majority of them, the descrip­ tion of child trafficking is confirmed”. While Terre des Hommes Foundation would go no further, the New York Times, like The Guardian reported that the children had been sold by their parents.129 While Article 110 of the Law of the Sea Convention would have allowed any State ship to visit the Nigerian ship on the High Seas; once in the territorial waters of any State, recourse would fall to the coastal State. As result, it appears that in law a prima facie case could be established in the applicable jurisdiction with reference to the 1982 Law of the Sea Convention, but also under the 1956 Supplementary Convention definition of child trafficking, which reads as follows and is considered in more depth in Chapter Four: Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guard­ ian to another person, whether for reward or not, with a view to the exploita­ tion of the child or young person or of his labour.130

This is so, as the children, having been sold were in the midst of being transported. Likewise, a prima facie case could also be made of the application of the provisions dealing with trafficking in persons to such a case. Here, reference might be made to Chapter Eight for a more indepth consideration of trafficking.

128 See Olenka Frenkiel, “Children of the Etireno”, The Guardian (London) 4 October 2001, p. 6; and Elizabeth Olson, “‘Slave’ Children’s Plight: Victims Taken From Ship Confirm Their Status”, International Herald Tribune, 2 May 2001, p. 4. 129 Elizabeth Olson “Victims Taken From Ship Confirm Their Status: ‘Slave’ Children’s Plight, New York Times, 2 May 2001; and Frenkiel, id., p. 6. 130 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23.

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Consideration of the legal provisions related to the slave trade has provided a window on to the world of abolition; a movement which, inter­ nationally, only gains traction at the end of the Napoleonic Era. For much of the Nineteenth Century, the United Kingdom sought to impose its will through its dominance of the seas. Yet as a possible exception to the Grotian notion of the Freedom of the Seas the ‘right to visit’ to suppress the slave trade had diminishing returns as, over time, the content of this right was even more circumscribed. Long after the end of the slave trade itself and the lost of its dominance over the seas, the United Kingdom maintained this policy objective of seeking an unfettered right to visit to suppress the slave trade. From 1820 until 1956, the United Kingdom sought to equate the slave trade to piracy which, in creating universal jurisdiction over the issue, would have provide this unfettered right. Yet this was not to be. Beyond the limits which were placed on the right to visit in bilateral treaties which the United Kingdom negotiated throughout the early Nineteenth Century, the Final Act of the 1980 Brussels Conference limited the right to visit to a specific maritime zone, to ‘native’ vessels, and to strict procedures regarding the actual visit. Those diminishing returns contin­ ued into the Twentieth Century as not only the slave trade was prohibited, but slavery and lesser servitudes were made the object of international agreements meant to lead to their overall suppression. It is in this context that we can appreciate the limited provisions which have found their way into the 1982 Law of the Sea Convention. That is: the ability to visit a ship suspected of being involved in the slave trade to ascertain whether it has the right to fly its flag. Beyond this nothing more; but for a fascinating history which dominated much of international relations throughout the Nineteenth Century.

CHAPTER THREE

SLAVERY

For most of human history slavery has been a basis of society. All great civilisations developed on the shoulders of slaves. Today, wherever one lives, an exercise in working back in time would find inevitably traces of a by-gone era where slavery persisted in both the building of public infrastructures and in lives of owners made easier by the drudgery of slaves. Over the last two hundred years, an international movement developed which, in law, abolished the slave trade, slavery and a number of lesser servitudes: forced labour, debt bondages, serfdom, servile marriage, and child trafficking. The most recent manifestation of this move to end human exploitation has been the introduction, in 2000, of the United Nations Palermo Protocol, a legal instrument which requires the suppression of the trafficking in persons where the ultimate purpose is their exploitation. As we have seen in the previous Chapter, through much of the Nine­ teenth Century the abolition of the slave trade at sea came about by an active campaign by the United Kingdom, utilising its hegemony over the seas to press forward a foreign policy objective which resulted, not only in the legal abolition of the slave trade, but in its wholesale end. In its wake, the first half of the Twentieth Century would see the legal abolition of slavery and lesser servitudes, with European colonialism as the engine to both the legal abolition and the suppression of slavery where it continued to persist; and the regulation of forced labour and other servitudes so as to allow for its ‘civilising mission’ to bear fruit.1 In the latter of half of the Twentieth Century, the convulsions of the end of colonialism and the emergence of newly independent States threw into confusion the regime of human exploitation by confounding the legal terms of slavery and servitude with the politically-charged term ‘slavery-like practice’ so as to attack apartheid. Despite the perplexity caused by this term which created 1 See Jean Allain, “Slavery and the League of Nations: Ethiopia as a Civilised Nation”, Journal of the History of International Law, Vol. 8, 2006, pp. 213–244.

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a subjective area that often ran roughshod over the legal; a parallel movement was taking place in which the terms ‘slavery’, ‘servitude’, and ‘forced labour’, were being incorporated into international human rights law, both universally within the International Covenant on Civil and Political Rights, and regionally within constitutive instruments of the African, European, and Inter-American human rights systems. As the Twentieth Century turned to the Twenty-First Century it should be recognised that slavery and lesser servitudes had, by and large, been both abolished in law and ended as a State-sanctioned institution. Yet, it became apparent as the Cold War era gave way to an era of neoliberal global economics that human exploitation, while outlawed, was flourishing. Slavery, forced labour, debt bondage and other types of exploitation had remerged, this time at the retail level, as an illegal activity benefiting private actors – individuals and businesses. This growing awareness of a ‘New Slavery’ was brought to the fore by the work of Kevin Bales; while the move to address contemporary slavery saw history repeating itself.2 We thus find ourselves in a ‘neo-abolitionist era’ one that, like its British predecessor, finds its roots in religious convictions which are backed by coercive legislation imposed by the most dominant State of our times. Just as Quaker activism and Anglican evangelicalism laid the foundation for the British abolitionist campaign which would first end the transatlantic slave trade and later lead to the legal abolition of slavery; so too should we recognise the role of the ‘Religious Right’ in the United States of America and its influence on the American Congress in passing its anti-trafficking legislation.3 Just as British dominance of the seas during the Nineteenth Century allowed it to force a network of bilateral ‘right to visit’ treaties which effectively authorised it to police the seas and end the slave trade at sea; so too has the 2000 Victims of Trafficking and Violence Protection Act, and later acts of the United States Congress, forced countries to act to end not only trafficking in human beings, but also slavery and lesser servitudes.4

2 See Kevin Bales, Disposable People: New Slavery in the Global Economy, 1999; Kevin Bales, Understanding Global Slavery: A Reader; 2005; Kevin Bales, Ending Slavery: How We Free Today’s Slaves, 2008; and Kevin Bales and Ron Soodalter, Slave Next Door: Human Trafficking and Slavery in America Today, 2010. 3 See Christopher Leslie Brown, Moral Capital, 2006; and Ronald Weitzer, “The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade”, Politics Society, Volume 35, 2007, pp. 447–475. 4 See Section 110, United States, Department of State, Victims of Trafficking and Violence Protection Act, 28 October 2000; which threatens non-complying States with the prospect

slavery107 While the United States of America may find itself the de facto enforcer; it is enforcing transnational criminal law in the guise of 2000 United Nations Palermo Protocol – the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime. The Palermo Protocol sets out a definition of trafficking in persons which, in essence, renews obligations previously undertaken to suppress domestically – most important for the purposes of this Chapter – slavery, but also other types of exploitation. Article 3(a) of the Protocol reads: ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

The dominant position which the United States of America holds has allowed it to require a large number of States to pass legislation that criminalise the trafficking of persons for various purposes including slavery. Just as in its most recent incarnation, the William Wilberforce Trafficking Victims Protection Re-authorization Act of 2008, the original 2000 legislation makes it “the policy of the United States not to provide non-humanitarian, nontrade-related foreign assistance to any government that (1) does not comply with minimum standards for the elimination of trafficking; and (2) is not making significant efforts to bring itself into compliance with such standards”.5 As a result, countries have turned their thoughts not only to trafficking but also to criminalising the types of exploitation noted in the definition of trafficking. of losing foreign aid, multilateral assistance including the United States voting against such States at the World Bank and IMF. 5 Section 110, id. These minimum standards related to legislating criminal liability for those involved in trafficking in person and requires that the State “should make serious and sustained efforts to eliminate severe forms of trafficking in persons”.1 In 2011, the US Department of State has placed fifty-eight States on its Special Watch List, as it was deemed that these States, inter alia: “(a) had a very significant or significantly increasing number of trafficking victims, [and] (b) had failed to provide evidence of increasing efforts to combat TIP from the previous year. […]”. See: United States, Department of State, Trafficking in Persons Interim Assessment Report, 5 April 2011, http://www.state.gov/g/tip/rls/reports/2011/160017.htm.

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Beyond this rather clear influence of the United States of America in driving this neo-abolitionist agenda, the Twentieth Century has witnessed the emergence of international criminal law, in large part at the prompting of the United States, the “driving force behind the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda”.6 These ad hoc Tribunals, served as a testing ground and cleared the way for the creation, in 2002, of the International Criminal Court.7 While the United States has remained hostile to becoming party to the Statute of the International Criminal Court, it has been willing to act instrumentally, in using its influence within the United Nations Security Council to get the Court to indict the leaders of Sudan and Libya and, in so doing, has furthered its foreign policy objectives. Where the International Criminal Court gathers importance for our purposes is that, for the one-hundred and twenty States party to the Statute of the International Criminal Court, these have had to incorporate so-called ‘implementing legislation’ so as to allow the Court to function in a way complementary to their domestic legal orders. Part of that legislation has related to the crimes under the jurisdiction of the International Criminal Court and for a number of States, including Burundi, Malta, Niger and Romania, this has included the incorporation of ‘enslavement’ into their domestic order. Thus, the neo-abolitionist era in which we find ourselves in seeks to end human exploitation by emphasising law; but not simply abolition by incorporation of domestic legislation. This new push goes further, as it requires the suppression of slavery by legal action, by holding those to account for contemporary forms of slavery by their prosecution in criminal law. Such prosecutions would be simple enough task, but for the fact that we do not, as yet – rather curiously – have an overarching consensus of what the term ‘slavery’ means in law. This Chapter takes on this challenge and sets out a unified approach to understanding what ‘slavery’ means in law, thus providing the legal certainty needed to build a case against those that would enslave others. It might be added as a corollary that such legal certainty would also provide for the integrity of the criminal process as it would allow for the defence of 6 John Cerone, “Dynamic Equilibrium: The Evolution of US Attitudes toward International Criminal Courts and Tribunals”, The European Journal of International Law, Volume 18, 2007, p. 288. 7 See, William Schabas, An Introduction to the International Criminal Court, 2011, p. 13.

slavery109 a client against charges of slavery, while allowing judges at the trial and appellate level to feel confident that the parameters of slavery are such as to ensure that justice is served. This unified approach takes the definition of slavery as first elaborated in 1926 and demonstrates how it captures the essence of what we might recognise as the lived experience of a slave today. While the definition of slavery has, in the past, been contentious, the approach now put forward creates an understanding of slavery which is both internally consistent with a reading of the 1926 definition while being consonant with a sociological understanding of what constitutes contemporary slavery. By anchoring a definition which captures the essence of what is recognised on the ground as slavery with the established, international, legal definition of slavery as first set out in 1926, we provide a foundation not only for legal cases to move forward, but for a shared understanding of slavery across the social sciences. This is much needed within the context of the study of contemporary slavery where the very basis of what is being studied is called into question by an inability, across disciplines or amongst researchers, to settle the most fundamental of questions: what is ‘slavery’? The 1926 definition is the authoritative definition of slavery; as such, a reading which is consistent with the lived experi­ ence  of contemporary slaves allows us to escape from the definitional quagmire, by setting out a firm foundation upon which to established a shared understanding of what constitutes slavery in a contemporary situation where the legal status no longer exists but the de facto situation persists. The Legislative History of the Definition of Slavery Coming from an international law perspective, most jurists would identify the intersection between slavery and international law with the dicta of the International Court of Justice in the 1970 Barcelona Traction case. In that case, which related to diplomatic protection of shareholders by Belgium as against Spain, the Court noted: In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.  Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the

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This pronouncement, which may be one of the most well-known of the International Court of Justice, need not detain us too long. James Crawford places the dicta in context, noting that the Court was “in effect apologizing for getting it wrong in 1966”; when it determined that Ethiopia and Liberia did not have standing to challenge apartheid South Africa’s continued presence in Namibia.9 While the International Court recognised that States could be held international responsible for breaches of obligations owed to the international community as a whole, the issues of such responsibility being invoked where slavery is concerned has not, in the intervening years, come to pass. Just as the protection from slavery is recognised as creating obligations erga omnes –obligations which, if breached, allow any State to deem itself injured and thus invoke State Responsibility10 – so too is slavery recognised as being a jus cogens norm.11 That slavery has attained the level of a jus cogens norm, that is: a peremptory norm of international law, means that when violations transpire, they carry with them what in domestic law might be termed strict liability. That is to say that no justification could preclude State Responsibility for a breach of an obligation tied to slavery.12 One further manifestation of slavery as a ‘super-norm’ is recognised, this time in international human rights treaties where – and leading on from its jus cogens nature – slavery is deemed to be a non-derogable right, wherein the prohibition against slavery is exempt from being suspended in times of war or national emergency.13 The link between a jus cogens

   8 International Court of Justice, Case concerning The Barcelona Traction, Light and Power Company, Limited, 5 February 1970, p. 32.   9 James Crawford, “Multilateral Rights and Obligations in International Law”, Collected Courses of the Hague Academy, Vol. 319, 2006, p. 410. 10 See Article 42(b), United Nations, General Assembly, International Law Commission, Articles on State Responsibility. UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001.  11 See United Nations, General Assembly, International Law Commission, Draft Articles on the Law of Treaties with Commentary, 1966, Yearbook of the International Law Commission, 1966, Vol. II, p. 248. While no examples of jus cogens norms are included in the provisions of Articles 53 or 64 of the 1969 Vienna Convention on the Law of Treaties, members of the International Law Commission in drafting the Convention set out “some of the most obvious and best settled rules of jus cogens” as being “trade in slaves, piracy or genocide”. 12 See Articles 53 or 64 of the 1969 Vienna Convention on the Law of Treaties and Articles 26, 40 and 50 of the International Law Commission 2001 Articles on State Responsibility. 13 The term ‘super-norm; is taken from Crawford, n. 9, p. 452.

slavery111 norm and a non-derogable right is that no exception is made for the failure to respect, in this case, the norm prohibiting slavery. While general international law and international human rights law have provided this super-normative armour to slavery, it must be said that very little movement has taken place to actually protect individuals from slavery within either of these regimes. The catalyst that has brought slavery back into the limelight in the Twenty First Century is, as already mentioned, international criminal law which, in its wake, has made international human rights courts sit up and take notice. The lack of true engagement with slavery in any sub-field of international law during much of the Twen­tieth Century has meant that we remain at the most fundamental stages of developing an understanding of what constitutes slavery in law. It is with this in mind that we turn to consider what, in law, constitutes slavery. The definition of slavery which was developed in the 1926 Slavery Convention remains the accepted definition of slavery in international law. This is so, as the definition was reaffirmed when States once more opened it to negotiation in their elaboration of both the 1956 Supple­ mentary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery and the 1998 Statute of the International Criminal Court. In both instances, the definition was not modified in substance, its reproduction having been deemed an accurate definition of the term. That said, in seeking to understand the provisions of the 1926 definition of slavery, the negotiations leading to the 1956 Supplementary Con­vention and the 1998 Rome Statute are instructive as the provisions related to the interpretation of legal instruments set out in the Vienna Convention on the Law of Treaties makes plain, such “subsequent agreement” provides context which “shall be taken into account” Article 4 of the 1966 International Covenant on Civil and Political Rights, set out the possibility of derogations from the Covenant, then at Article 4(2) list a number of nonderogable rights including Articles 8(1 and 2) which reads: “1. No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited. 2. No one shall be held in servitude.” Article 4, reads in part: 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11,15, 16 and 18 may be made under this provision. […]

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when interpreting or applying the provisions of, in this case, the definition of slavery.14 The definition itself emerges from the work the Temporary Slavery Commission, that body of independent experts that examined issues of what would be considered today ‘human exploitation (so: the slave trade, slavery, servitude, forced labour, etc.) from 1924 to 1926. The work of the Temporary Slavery Commission is very much in evidence in the DNA of both the 1926 Slavery Convention and the 1956 Supplementary Convention. And yet, as the French Member of the Temporary Slavery Commission, Maurice Delafousse, wrote in private correspondence to his British counterpart, Lord Frederick Lugard, “I was, like you, rather surprised at the line adopted […] regarding the Slavery Convention. As the matter has been agreed to, little remains of the work of the Temporary Commission except your idea of an international convention”.15 This is so, as much of the work of the Temporary Slavery Commission focused on lesser servitudes, while the 1926 Slavery Convention was, in the main, fixed on slavery (and the slave trade). The imprimatur of the 1926 Slavery Convention was given to it by a man-of-State, Robert Cecil – Viscount Cecil of Chelwood, the son of British Prime Minister Salisbury and winner of the Nobel Peace Prize – who acted as Rapporteur and marshalled States towards accepting the 1926 Slavery Convention. It was he who, on 22 September 1925, proposed a definition which would ultimately become Article 1(1) of the 1926 Convention:16 ‘Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.17

While attempts were made to include lesser servitudes into the 1926 Convention, these were objected to in the main by the Republic of South 14 Article 31(3)(a), Vienna Convention on the Law of Treaties, 1969. 15 See Delafousse to Lugard, 16 November 1925, Papers of Baron Lugard of Abinger, Box 102/1, Folio 31, Rhodes House Library, Oxford. Translated from the French. 16 See League of Nations, Slavery, A.VI/SC1/ Drafting Committee/14. (this document number having been pencilled out and replaced with A.VI/6.1925), 24 September 1925; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, where it reads: “Amendments proposed by Lord Cecil to the text of draft Convention adopted by the Drafting Committee of the Sub-Committee of the VIth Commission (Document A.VI/S.C.I/ Drafting Committee 12 (1))”. 17 League of Nations, Sixth Committee, Sub-Committee, Drafting Committee Slavery: Synopsis of the Convention (with handwritten amendments so as to be re-entitled Sixth Committee, Slavery: Synopsis of the Convention), A.VI/S.C.I/ Drafting Committee/12(1) Revised (this document number having been pencilled out and replaced with A.VI/5.1925, 22 September 1925); as found id.

slavery113 Africa, which resulted in the deletion of provisions so as to make clear that what was being abolished was slavery as defined in Article 1(1) of the 1926 Convention.18 To this end, Viscount Cecil in his Report to the Assembly of the League of Nations stated that the obligations which flowed from the 1926 Convention where slavery was concerned were “to bring about the disappearance from written legislation or from the custom of the country of everything which admits the maintenance by a private individual of rights over another person of the same nature as the rights which an individual can have over things”.19 In seeking to emphasise the difference in legal terms between slavery as defined by the Article 1(1) of the 1926 Slavery convention and lesser servitudes, the successor to the Temporary Slav­ ery Commission, the League of Nations Committee of Experts on Slavery made plain that one had to look to the substance of a situation to determine “whether it amounts to ‘slavery’ within the definition of the Slavery Convention”, and that whatever form a practice might “take in different countries – is not ‘slavery’ within the definition set forth in Article 1 of the 1926 Convention, unless any or all the powers attaching to the right of ownership are exercised by the master”.20 During the early years of the United Nations, the issue of slavery was once more considered, this time by the United Nations Ad Hoc Committee on Slavery which, in 1950, was tasked with answering a number of questions including: “Is the definition of slavery in Article 1 of the [1926] Convention satisfactory?”.21 In its 1951 Report, the Ad Hoc Committee on 18 See Jean Allain, “The Definition of Slavery in International Law”, Howard Law Journal, Vol. 52, 2009, pp. 245–251. Note the following consideration by the Republic of South Africa: That definition puts as the test of slavery the status or condition of a person over whom all or any of the powers attaching to the right of ownership are exercised. In other words, a person is a slave if any other person can, by law or enforceable custom, claim such property in him as would be claimed if he were an inanimate object; and thus the natural freedom of will possessed by a person to offer or render his labour or to control the fruits thereof or the consideration therefrom is taken from him. League of Nations, Draft Convention on Slavery, Replies of Governments, Reply from the Government of the Union of South Africa, A.10(a).1926.VI, 22 July 1926, p. 5; as found in Publications of the League of Nations, VI.B.Slavery.1926, VI. B. 3. 19 League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, as found in Publications of the League of Nations, VI.B.Slavery.1926, VI. B. 5, 24 September 1926, pp. 1–2. 20 League of Nations, Slavery: Report of the Advisory Committee of Experts, Third (Extraordinary) Meeting of the Advisory Committee, C.189(I). M.145.1936, VI, 13–14 April 1936, pp. 27 and 25. 21 United Nations, Economic and Social Council, Notes on the Terms of Reference of the Ad Hoc Committee on Slavery (Memorandum submitted by the Secretary-General), UN Doc. E/AC.33/4, 3 February 1950, pp. 3–4.

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Slavery ultimately decided “that the definition of slavery […] contained in Article 1 of the International Slavery Convention of 1926 should continue to be accepted as accurate and adequate”. That said, the Committee called for the creation of a new legal instrument dealing with lesser servitudes, as it recognised that there had been “rather loose […] usage of the term ‘slavery’” and there was “little prospect of formulating a definition of it which will be so precise and comprehensive as to embrace all types of servitude in all societies”. “As a result of its examination of this question”, the Ad Hoc Committee on Slavery “decided that there is not sufficient reason for discarding or amending the definition of slavery contained in Article 1 of the International Slavery Convention of 1926”.22 In considering the overall issue, including the reports of the Ad Hoc Committee on Slavery, the United Nations Secretary-General determined, in 1953, that: It would appear from a study of the International Slavery Convention of 1926, and of the preparatory work leading to its adoption, that the obligations of the Parties therefore extended to all institutions or practices, whether or not designated as ‘slavery’, provided that, as stated in Article 1 of the Convention, ‘any or all of the powers attaching to the right of ownership are exercised’ over a person in these institutions or practices.23

In that same 1953 Memorandum, the UN Secretary-General sought to analyse the 1926 definition of slavery and consider its fundamental element, that of: ‘the powers attaching to the right of ownership’. For the Secretary-General it could “reasonably be assumed that the basic concept” which the drafters of the definition “had in mind was that of the authority of the master over the slave in Roman law, the ‘dominica potestas’. This authority was of an absolute nature, comparable to the rights of ownership, which included the right to acquire, to use, or to dispose of a thing or of an animal or of its fruits or offspring”.24 For the Secretary-General, the exercise of such powers attaching to the right of ownership, were manifest in the following characteristics: 1.  the individual of servile status may be made the object of a purchase; 2. the master may use the individual of servile status, and in particular his capacity to work, in an absolute manner, without any restriction other than that which might be expressly provided by law;

22 Id., pp. 6–7. Emphasis added. 23 United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 28. 24 Id., p. 27.

slavery115 3. the products of labour of the individual of servile status become the property of the master without any compensation commensurate to the value of the labour; 4. the ownership of the individual of servile status can be transferred to another person; 5. the servile status is permanent, that is to say, it cannot be terminated by the will of the individual subject to it; 6. the servile status is transmitted ipso facto to descendants of the individual having such status.25

These considerations fed into the drafting of the 1956 Supplementary Con­ vention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which, on the one hand, moved to abolish four conventional servitudes which had originally been identified by the League of Nations Temporary Slavery Commission – debt bondage, serfdom, servile marriage, and child trafficking – while; on the other hand, acknowledging that these servitudes might also be deemed slavery as being “covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926”. While the 1956 Supplementary Convention set out the definitions of these four servitudes, it also reproduces in substance the definition of Article 1(1) of the 1926 Convention, as Article 7(a) of the Supplementary Convention, which reads: ‘Slavery’ means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and ‘slave’ means a person in such condition or status.

Where the 1998 Statute of the International Criminal Court is concerned, we see a convergence between ‘slavery’ as conceived in general international law through the 1926 and 1956 Conventions and the international crime of ‘enslavement’, where ultimately, the crime against humanity of enslavement is defined, once more in substance, with recourse to the 1926 definition of slavery; thus the Statute of the International Criminal Court reads, inter alia: ‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.26 25 Id., p. 28. 26 Article 7(2)(c), Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 17 July 1998. See Chapter 6, for considerations of enslavement.

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This definition came about as some delegates of the 1996 Preparatory Committee on the Establishment of an International Criminal Court “expressed the view that enslavement required further clarification based on the relevant legal instruments”. This was so, as considerations of international crimes from the Nuremberg Trials onwards had, on occasion, lumped together under the heading of enslavement, both slavery and lesser servitudes.27 Ultimately the text which travelled to Rome for the 1998 United Nations Conference of Plenipotentiaries on the Establish­ ment of an International Criminal Court included the crime against humanity of enslavement, though it was left undefined; while “slavery and the slave trade in all their forms” remained a live option as a war crime.28 While this option was not taken up during the Rome Conference, in the final week of negotiations the Jordanian Delegate stated that “following consultations with other delegations, he proposed the following refinement of the definition of enslavement”: “‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership of a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children”; which was then adopted.29 Thus the definition of slavery as first elaborated in the 1926 Slavery Convention remains the normative understanding of what is considered slavery in international law. Through the considerations of both the League of Nations era and through the work of the United Nations, a picture emerges of the content of the definition of slavery, based on a consideration of the substance of a practice versus its form. In other words, it is not enough to say that debt bondage slavery; instead one must look past what it is called (thus the form), and look to individual cases and what is actually taking place. If the substance of the practice manifests the exercise of any or all of the powers attaching to the right of ownership, then a case of slavery is present. This point should be driven home by the realisation that the 1926 Slavery Convention seeks to protect against the possibility of forced labour ‘developing into conditions analogous to slavery’; and with reference to the 1956 Supplementary Convention which requires 27 See, for instance, United Nations, General Assembly, International Law Commission, Yearbook of the International Law Commission, UN Doc. A/CN.4/SER.A/1996 (Volume 1), 1996, p. 74. 28 United Nations, United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, 14 April 1998, UN Doc. A/CONF.183/2/Add.1, p. 24. 29 Id., p. 332.

slavery117 the abolition of its conventional servitudes ‘where they still exists and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention’. Thus we should always look to the substance of the relationship at hand and recognise that, be it termed forced labour, debt bondage or some other type of exploitation, that it will, if it meets the definitional threshold of Article 1(1) of the 1926 Convention, constitute slavery. Or, to give emphasis once more to the words of the United Nations Secretary-General, that slavery will extend “to all institutions or practices, whether or not designated as ‘slavery’, provided that, as stated in Article 1 of the Convention, ‘any or all of the powers attaching to the right of ownership are exercised’ over a person in these institutions or practices”.30 The Content of the Definition of Slavery While the 1926 Slavery Convention required States “to adopt the necessary measures in order that severe penalties may be imposed” for infractions of its provisions; States have taken a number of different approaches to incorporating provisions prohibiting slavery into their domestic legal order. While a number of States – Australia, Kenya, Liberia, Mauritius, Malta, Sierra Leone, Sri Lanka, and Zambia – have incorporated the 1926 definition of slavery into their legislation, most States has simply include the prohibition against slavery without defining the term. Thus, for instance, more than a dozen States incorporate the prohibition against slavery at the level of the constitution; where, for instance, the Republic of Congo simply states “No one shall be subject to slavery”, while the constitutions of the Seychelles, South Africa, South Sudan, and Sudan all track the language of the 1948 Universal Declaration of Human Rights (re: ‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’) and/or Article 8 of the 1966 UN International Covenant on Civil and Political Rights (‘No one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited.’). For a large group of States, reference to slavery is to be found in domestic legislations providing human rights protection, while an equally large collection of States mention slavery within their anti-trafficking

30 United Nations, Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 28.

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legislation.31 Yet in all of these cases – and more generally, with regard to the majority of States – no definition of slavery is set out in the domestic legal order. While I will come back to some of the definitions which have been established in domestic law, reference now turns to the international legal order and the considerations of slavery before international courts. In the past, I have been critical of the jurisprudence of international courts in their considerations of slavery.32 And yet, if one moves the optic back from the individual cases and look at them as a whole, it becomes evident that international courts have struggled with the very conception of slavery and have lacked the established jurisprudence or the doctrinal studies to base their finding upon. This is so, as slavery as a violation of general international law and international human rights law (thus incurring State Responsibility), or enslavement as an international crime were not tried during the Twentieth Century. With the advent of the neo-abolitionist era – and it might be said the proliferation of international courts33 – we have witnessed cases in the Twenty-First Century dealing with slavery before the Community Court of the Economic Community of West Africa States, the European Court of Human Rights, the International Criminal

31 The following are States which include provisions on slavery within human rights legislation: Antigua and Barbuda, Bahamas, Barbados, Bolivia, Bosnia-Herzegovina, Botswana, Brazil, Chad, Colombia, Cyprus, Dominica, Gambia, Ghana, Grenada, Guyana, Honduras, Ireland, Kenya, Lesotho, Liberia, Malawi, Malaysia, Marshall Islands, Mauritius, Namibia, Nicaragua, Nigeria, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Sierra Leone, Singapore, Solomon Islands, Tuvalu, Uganda, United Kingdom, Zambia, and Zimbabwe. The following States are those which have included slavery within their anti-trafficking statutes: Albania, Argentina, Armenia, Bulgaria, Cambodia, Cameroon, Costa Rica Czech Republic, Denmark, Dominican Republic, Egypt, Equatorial Guinea, Fiji, Finland, Haiti, Israel, Italy, Kyrgyzstan, Latvia, Lebanon, Liberia, Luxembourg, Madagascar, Myanmar, Nepal, Netherlands, Norway, Oman, Poland, Republic of Moldova, Romania, Russia, Senegal, Tajikistan, United Arab Emirates, Tanzania, Uruguay, and Venezuela. See Slavery in Domestic Legislations database: http://www.qub.ac.uk/slavery/. 32 See Jean Allain “Rantsev v. Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery”, Human Rights Law Review, Vol. 10, 2010, pp. 546–557; and Jean Allain, “Hadijatou Mani Koraou v. Republic of Niger”, American Journal of International Law, Vol. 103, 2009, p. 311–317. 33 See Jean Allain, A Century of International Adjudication: The Rule of Law and its Limits, 2000.

slavery119 Court, the International Criminal Tribunal for the former Yugoslavia, and the Special Court for Sierra Leone.34 Where there appears to be some coalescing of an understanding of what slavery means in law, it has come with reference to the Kunarac case before the International Criminal Tribunal for the former Yugoslavia, as each of the other international courts have taken this case as the basis for formulating their approach to the issue.35 While each court acknowledges the definition of enslavement/slavery turns on the exercise of ‘any or all of the powers attaching to the right of ownership’, in each instance where a court makes referred back to Kunarac, it quotes sections of the Judgment which do not truly address the definition of slavery. Both the Community Court of the Economic Community of West Africa States and European Court of Human Rights quote a passage which speaks to “the operation of the factors or indicia of enslavement” as opposed to what might constitute enslavement. Thus, instead of engaging with the definition of slavery head-on, these courts take the Kunarac lead in looking not internally to the definition of slavery but externally to indica that could point the way to what slavery might entail. These included: control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of 34 It may be also worth noting that the African Commission on Human and Peoples’ Rights determined in a 2000 case brought by a number of Non-Governmental Organisations against Mauritania that it “cannot conclude that there is a practice of slavery [in Mauritania] based on the evidence before it”. That said, the Commission, in a case related to political repression and marginalisation of ‘black ethnic groups’, include the Haratines (descendents of slaves), determined that there was a violation of Article 5 of the 1981 African Charter on Human and Peoples’ Rights, which reads: Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. The Commission noted that such a violation was “due to practices analogous to slavery, and emphasises that unremunerated work is tantamount to a violation of the right to respect for the dignity inherent in the human being. It furthermore considers that the conditions to which the descendants of slaves are subjected clearly constitute exploitation and degradation of man, both practices condemned by the African Charter Communications 54/91, 61/91, 98/93, 164/97–196/97 and 210/98, Malawi African Association and others v. Mauritania, 13th Annual Activity Report of the African Commission on Human and Peoples’ Rights, 1999–2000, Annex V, Addendum, paras. 135 and 136. 35 See Community Court of the Economic Community of West African States, Hadijatou Mani Koraou v. the Republic of Niger, No. ECW/CCJ/JUD/06/08, 27 October 2008, p. 12; European Court of Human Rights, Rantsev v Cyprus and Russia, Application No. 25965/04, Judgment of 7 January 2010, p. 68; and Special Court for Sierra Leone Brima et als., Trial Chamber, Judgement, SCSL-2004-16-T, 20 June 2007, pp. 217 and 229–230.

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chapter three force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.36

For the Special Court for Sierra Leone, it chose to quote from the Trial Chamber rather than the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, but it too looked to the “indications of enslavement” rather than to the actual definition of slavery. The section which the Special Court for Sierra Leone quotes from Kunarac sets out the following as indications of enslavement, as including: elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socioeconomic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.37

While hesitating as to how to interpret the definition of slavery, the international jurisprudence has gravitated towards an understanding of the fundamental nature of slavery. That slavery is ultimately about control. Control which deprives a person, in a significant manner, of their individual liberty or autonomy; and ultimately, that this control is meant to allow for exploitation and is typically maintained through coercion or violence. Beyond considerations of the nature of slavery within the international jurisprudence, deliberation has also transpired at the domestic level in 2008, in the Tang case before the High Court of Australia where, in a Concurring Opinion, Hayne J, considered “the antithesis of slavery”, which he deemed freedom: “Asking what freedom a person had may shed light on whether that person was a slave”.38 In looking back at the international jurisprudence on slavery developed over the last decade, we have this convergence of recognition that what the enslaved lacks – call it what you may: autonomy, freedom or liberty. 36 International Criminal Tribunal for the former Yugoslavia, Kunarac et als., (IT-96-23 &-IT-96-23/1-A) Judgment, 12 June 2002, p. 36. 37 International Criminal Tribunal for the former Yugoslavia, Kunarac et als. (IT-96-23-T &-IT-96-23/1-T) Judgment, 22 February 2001, p. 193. 38 High Court of Australia, The Queen v Tang, (Hayne J.) [2008] HCA 39, 28 August 2008, pp. 62 and 65.

slavery121 It is this which we abhor in slavery, as it goes against our contemporary societal inclination to regard people as being born free. Thus we seek to deny the possibility to hold dominion over others and withdraw the ability to lord over them. Ultimately, where the international jurisprudence has struggled, is in bringing these considerations of the nature of slavery into a coherent narrative which speaks in terms of the definition of slavery as set out in the 1926 Slavery Convention. In essence, the international jurisprudence looks to indications of slavery rather than to slavery. Yet, a coherent narrative is possible, one that establishes a clear objective standard as to what constitutes slavery in law, providing a firm boundary within which we find slavery and where beyond such parameters, instances which fail to meet the threshold of slavery can be excluded as falling short of the legal definition of slavery. Such an approach relies on little else but engaging with the definition of slavery on its own merits and seeking to draw out the component parts which create a coherent whole, while being internally consistent with its property paradigm. The definition of slavery as originally set out in the 1926 Slavery Con­ vention, and reproduced in substance in the 1956 Supplementary Conven­ tion and adopted as the definition of the crime of enslavement in the 1998 Statute of the International Criminal Court is, to repeat: The status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

At first blush one might consider the definition to require that one person own another. While we shall turn shortly to consider what ownership means in the context of the 1926 definition, it should be recognised that to assert a legal right of ownership is to claim a right in a court of law. But while the definition of slavery addresses a legal right of ownership over a person it also recognises de facto ownership through the notions of ‘condition’ rather than ‘status’. This is fundamental as in the main de jure – chattel – slavery no longer exists today. Thus the contemporary relevance of the definition is to be found in its application in de facto situations. But how can somebody not own something or somebody in a legal sense but do so in a de facto sense? The answer lies in illegal commodities such as drugs or guns. In being apprehended with illegal drugs or having been caught running guns, one cannot assert one’s right of ownership over such contraband; yet a judge will recognise in such cases de facto ownership. To give a more concrete example, consider the case of a dispute between two drug dealers over a kilo of heroin. Were our righteous criminals to bring a civil case to determine the true ‘ownership’ of the heroin,

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the judge would have to decline to pass judgement as neither would have a legal claim to the drugs. That said, the courthouse might be a buzz with a prosecutorial interest in seeking to establish which of the two, righteous but ultimately ill-advised, drug dealers ‘owns’ the kilo of heroin in the de facto sense. As with most drugs cases, such a determination would come down to possession, to a consideration of who controlled the substance. This distinction between status as de jure and condition as de facto is consonant with the ordinary meaning of these terms. With regard to ‘status’, the Oxford English Dictionary defines status in the legal sense of the word as “the legal standing or position of a person as determined by his membership of some class of persons legally enjoying certain rights or subject to certain limitations; condition in respect, e.g., of liberty or servitude, marriage or celibacy, infancy or majority”. Where the term ‘condition’ is concerned, it is defined, inter alia, as a “mode of being, state, position, nature”. The most pertinent example given under this heading is a “characteristic, property, attribute, quality (of men or things)”.39 Where the 1926 definition of slavery is concerned, the High Court of Australia has spoken to the issue in Tang, as Gleeson CJ, for the majority, determined that: Status is a legal concept. Since the legal status of slavery did not exist in many parts of the world, and since it was intended that it would cease to exist everywhere, the evident purpose of the reference to ‘condition’ was to cover slavery de facto as well as de jure”.40

A further element might be pointed to within the definition of slavery which speaks to its application both de facto and de jure. The definition does not speak of the exercise of a right of ownership, but the powers ‘attaching’ to such rights of ownership. As a result of this step back from ownership, what is being exercised are the powers attaching to such a right rather than the actual right of ownership itself. As a result, this opens the possibility of the exercise either de facto or de jure of such powers, rather than what would simply be a de jure application of the definition if it spoke in narrower terms of the exercises of a right of ownership. In both de facto and de jure situations of slavery, there would be an exercise of the powers attaching to the right of ownership; in a de jure situation, that exercise of the powers attaching to the right of ownership would be recognised as a right in law. 39 Oxford English Dictionary, 1989, pp. 165 and 437. 40 High Court of Australia, The Queen v Tang, [2008] HCA 39, 28 August 2008, p. 13.

slavery123 ‘The Powers Attaching to the Right of Ownership’ 41 The most authoritative pronouncement of what constitutes such powers attaching to the right of ownership was made, as previously mentioned, in 1953, by the United Nations Secretary-General. In essence, the SecretaryGeneral considers such powers as being the ability to purchase or transfer a person, utilising their capacity to work and gaining the benefit of their labour in an unrestricted manner, and finally that such a status or condition would be indeterminate for the enslaved and could be conveyed to future generations. Further, it will be recalled that the Secretary-General spoke of the power of dominion over a person, the authority of such ‘dominica potestas’ was of an “absolute nature, comparable to the rights of ownership, which included the right to acquire, to use, or to dispose of a thing or of an animal or of its fruits or offspring”.42 A more recent elaboration of those ‘powers attaching to the right of ownership’ transpired via the International Criminal Court. As part of the negotiation process of the Statute of the International Criminal Court, it was decided that the crimes under the jurisdiction of the Court would require further elaboration. This materialised through the adoption, in 2002, of the Elements of Crimes. With regard to the crime against humanity of enslavement– which it will be recalled is defined as ‘the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children’ – the first Element provides examples of powers attaching to the right of ownership.43 These are: the 41 The consideration in this section has been developed in large part through a UK Arts and Humanities Research Council grant which allowed me to create a Research Network of leading expertise in the area of slavery and property law. Their input is here acknowledged with gratitude as what follows echoes our collaboration. The results of this collaboration are the Bellagio-Harvard Guidelines on the Parameters of Slavery (where the Members of the Research Network are named); Jean Allain (ed.) The Legal Understanding of Slavery: From the Historical to the Contemporary, 2012; see also (forthcoming) Jean Allain and Robin Hickey, “Property and the Definition of Slavery”, International and Comparative Law Quarterly, Volume 62, 2013, 22 pp. 42 See Report of the Secretary-General, n. 23, pp. 27–28. 43 The Elements of Crimes of the Crime against Humanity of Enslavement read, in full: 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

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“purchasing, selling, lending or bartering such a person or persons”. The first Element of the crime against humanity of enslavement then goes further in stating that such powers will include the imposing on a person or persons “similar deprivation of liberty”. Thus, within the secondary legislation of the International Criminal Court, we not only see examples of powers attaching to the right of ownership, but reference to a conceptual framework: exercising powers attaching to the right of ownership in such a manners as to deprive a person of their liberty – in a manner which is similar to the buying or selling of a person. Returning now to consider some of the definitions of slavery set out in domestic law, the 2006 Israeli law dealing with trafficking in persons defines slavery in such a manner as to touch on many of elements discussed thus far: ‘slavery’ means a situation under which powers generally exercised towards property are exercised over a person; in this matter, substantive control over the life of a person or denial of his liberty shall be deemed use of powers as stated.44

In Nigerian Law, the Criminal Code prohibits ‘Slave Dealing’, where ‘a slave’ is defined as “a person who is held in bondage whose life, liberty, freedom and property are under absolute control of someone”.45 Beyond these examples which speak to the nature of slavery; a number of States have, despite not having incorporated the 1926 definition into their legislation, made the link between slavery and ownership. For instance, in its trafficking legislation, Timor-Leste established that “a person is considered to be in a condition of enslavement whenever, even if only de facto, said person is under submission to powers corresponding to those of property rights, or to any concrete right, or is bound to the disposal of anything”.46 In a like-manner, Italy considers that “anyone who exercises on a person powers equal to those of the right of property or reduces or keeps a person in a continuous state of subjugation […] is punishable with imprisonment from eight to twenty years”.47 See International Criminal Court, Assembly of States Parties, Elements of the Crimes, ICCASP/1/3, 9 September 2002, p. 117. 44 Prohibition of Trafficking in Persons (Legislative Amendments) Law, 5766 – 2006, 29 October 2006. 45 Section 50, Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, Act No. 24, 14 July 2003. The offence of Slave Dealing is found under Offences against Liberty at: Section 369, Criminal Code Act, 1990. 46 Penal Code of Timor Leste, 7 June 2009. 47 Section 660, Measures against Trafficking in Persons, Act No 228, 11 August 2003.

slavery125 In the same manner as the Elements of Crimes of the International Criminal Court set out examples of powers attaching to the right of ownership (‘purchasing, selling, lending or bartering’), domestic law is replete with such examples. The Azerbaijani Criminal Code speaks of sale, transfer and exchange; the Penal Code of Brunei make mention of the importing, removal, buying, selling, or disposing of a person; while the Ethiopia Criminal Code prohibits the selling, alienating, pledging, buying, or trading of persons in conditions of slavery.48 The Kuwaiti Penal Code states that “anyone who purchases, offers for sale or gives away a person as a slave, shall be liable to a penalty of up to five years’ imprisonment”; while the Thai Criminal Code mandates, in the case of slavery, that the “bringing into or sending out of the Kingdom, removing, buying, selling, disposing, accepting or restraining any person, shall be imprisoned not out of seven years and fined not out of fourteen thousand Baht”.49 These considerations, both domestic and international, provided authoritative grounding, from which to investigate the parameters of the legal definition of slavery by setting out an overall consideration of what constitutes those powers attaching to the right of ownership. In so doing, it might be emphasised at the outset that this construct of ‘powers attaching to the right of ownership’ is very familiar to property lawyers, as much of domestic jurisprudence differentiates between a legal right of ‘ownership’ and the powers or privileges which flow from such a right.50 What we are thus considering, in examining the exercise of the powers attaching to the right of ownership are its manifestations: in exercising power of ownership over a person or thing what, in fact, transpires. 48 Of interest might be the provisions of Brunei, which read in full: Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives, or detains against his will any person as a slave, shall be punished with imprisonment for a term which may extend to 30 years and with whipping with not less than 12 strokes. Section 370, Chapter 22, Penal Code, 1951, Revised Edition 2001. 49 The original legislation can be accessed through Slavery in Domestic Jurisdictions, n. 31. 50 See generally, A.M. Honoré, “Ownership”, A.G. Guest (ed) Oxford Essays in Jurisprudence, 1961 where he goes beyond the characterisation of ownership as constituting a ‘bundle of rights’, and lists (at p. 113) eleven ‘standard incidents’ of ownership, of which the majority are rights, but also include obligations: 1) The right to posses; 2) The right to use; 3) The right to manage; 4) The right to the income of the thing; 5) The right to the capital; 6) The right to security; 7) The right or incidents of transmissibility; 8) The right or incidents of absence of the term; 9) The prohibition of harmful use; 10) Liability to execution; and 11) Incident of residuarity.

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Property lawyers might be inclined to read the notion of ‘powers’ in narrower terms, as considering the rights of ownership to be manifest not only as powers but also as claim rights, liberties (privileges), and immunities. Yet, this approach while first introduced by Wesley Hohfeld in 1914, does not appear to have formed part of the thinking which went into the drafting process of the 1926 definition of slavery.51 As originally conceived the use of the term ‘powers’ was used in the more general sense of the various manifestations or instances of the exercise of the rights of ownership. As originally proposed, the definition of slavery was first formulated in 1925 as “the status in which a person exercises a right of property over another”.52 Through the negotiation process the term ‘powers’ emerged but not with regard to ownership, rather in the first instance, with reference to property: “Slavery is the status of a person over whom another person or group of persons exercises the power attaching to proprietorship […]”.53 It was only later in the process that the definition came to be centred on the powers of the right of ownership rather than powers of proprietorship.54 Further, in the authentic French text of the 1926 Slavery Convention, it does not speak of powers but the attributes (‘les attributs’) of the rights of ownership. Rather curiously, while the English definitions of slavery is reproduced in substance as the crime against humanity of enslavement in the 1998 Statute of the International Criminal Court, the French text has been modified so as to mirror more closely the English reading of the translation as it now speaks of ‘powers attaching’ to the right of ownership (‘pouvoirs liés’). As a result of these considerations of the drafting process, it should be understood that the term ‘powers’ should not be read in the narrow, technical sense which priority lawyers might be 51 See J E Penner, “The Concept of Property and the Concept of Slavery”, (Jean Allain (ed.), The Legal Understanding of Slavery: From the Historical to the Contemporary, 2012, p. 242; where Penner consideration of ‘powers’ in the legal sense to provided an eloquent solution to the marrying of the 1926 definition to manifestations of slavery. However, his approach, which follows the pattersonian thesis of ‘social death’, requires third-party societal acknowledgment of the status of enslavement and thus has less contemporary purchase, as slavery today is illegal and thus clandestine my nature. 52 League of Nations, Journal of the Sixth Assembly of the League of Nations, Geneva 1925, No. 3, 9 September 1925, p. 25. 53 League of Nations, Draft Resolution and Protocol, League of Nations Official Journal (Special Supplement 33) Records of the Sixth Assembly: Text of Debates, Annex I, 1925, p. 40. 54 League of Nations, Slavery: Draft Protocol Text adopted by Sub-Committee of the VIth Commission on 17th of September 1925 A.VI/S.C.1/8.1926 as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925.

slavery127 more familiar with, but in the wider sense of manifestations or attributes of a right of ownership.55 Where ownership is concerned, in general terms an owner of a thing would expect (and courts would generally confirm a legal right) to posses and use a thing, to make decisions about how to use it and how it might be used by others; to enjoy the income produced by the thing, to sell it or to give it away, including as an inheritance. The owners would expect a measure of security over the thing; that it not be taken by others or expropriated by the State without good cause. And that ownership over the thing would be maintained until the owner decided otherwise, either by giving it away, selling it, consuming it, or destroying it. How then might these considerations of what ownership entails be translated into a coherent narrative of the definition of slavery, so as to be applicable to human beings in a manner which acknowledges that, in the main, we are speaking of de facto instances of the exercise of the powers attaching to the right of ownership? Much as in the same manner as a property lawyer would understand ownership to be anchored in control over a thing, we should recognise that the exercise of ‘the powers attaching to the right of ownership’ is mani­ fest in control over a person in such a way as to significantly deprive that person of his or her individual liberty. Such a significant diminution in autonomy will result from a case of enslavement transpiring in an environment heavy with the threat or use of violence force, deception and/or coercion. The end result of this process of enslavement will be the ability, once control has been established, to exploit a slave through their use, man­ agement, profit, transfer or disposal. How then should we think of this control which leads to, calling it what you may: loss of freedom, transfer of agency, significant deprivation of individual liberty, or diminution in autonomy?56

55 See Chapter by Robin Hickey, at p. 220 and James Penner, at p. 242, in Jean Allain (ed.), The Legal Understanding of Slavery: From the Historical to the Contemporary, 2012. 56 Consider a 1993 reading of the 1926 definition of slavery by the Corte d’Assise of Florence, as reproduced by Federico Lenzerini, “Italian Practice on Slavery: The Application of International Obligations Prohibiting Slavery by Italian Courts”, The Italian Yearbook of International Law, Volume 10, 2000, p. 276: “[T]he peculiar element which permits to qualify as slavery any condition of subjection among human beings, is the reduction of one of them, fully deprived of his faculties of autonomy and self-determination, to the object of a right of ownership in the exclusive enjoyment and disposal of another person. Singling out of concrete situation belonging to the legal definition [of slavery] is a judge duty, who … is not bound

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In his seminal piece on ownership published more than fifty-years ago, Antony Honoré made plain that in considering those powers attaching to the right of ownership (he speaks of instances of ownership), it should be realised that possession is “the foundation on which the whole superstructure of ownership rests”.57 Thus ownership implies a background relationship of control which we would recognise as possession. This then is the foundational power attaching to the right of ownership, which is central to allowing us to make a determination as to what constitutes slavery in law. In a given case of alleged slavery, we should look to possession manifest as control: does a person control another as they would a thing possessed in the legal sense. While such control might be physical, psychological, or otherwise, it would operate in such a manner as to significantly deprive the enslaved of their individual liberty for a period of time which for that person, would be indeterminate. In cases of slavery, control would be tantamount to possession. Just as with other illegal commodities, such as a drugs or firearms, a judge will look to control tantamount to possession in making a determination as to who, in a de facto sense, ‘owns’ the item in question; so too, in considering if a person is a slave, the issue should turn on control tantamount to possession. In setting a threshold of control where it is tantamount to possession, we distinguish instances of slavery from those where control of a lesser magnitude is exercised. We can thus differentiate the enslavement of a person from control which would be exercised in situations where a factory manager makes legitimate decisions with regard to managing employees by requiring them to work, for instance, in a specific location (at the factory and within specific department), and for a set number of hours. Control is being exercised in such a case, but it is not the equivalent of the control which one has over something he or she possess. The same would be true with regard to control

to verify the existence of specific modalities pertaining to the [criminal] conduct (violence, threat, etc.), or to determine special characteristics of the case (for instance, the use of physical coercion), but has the only duty to verify the effect (results) of the denial to the victim, for an indefinite period, of those freedoms … that otherwise would qualify his as a free man.” 57 Honoré, “Ownership”, n. 50, p. 113. An historical footnote might be added here of the 1963 case before the High Courts of the Federation, Nigeria, in which there was a de facto sale of a person. The Court noted that the legislation under consideration allowed for such a sale as “There cannot be a ‘real sale’ of a human being as a slave, as such sale will be illegal and void ab initio as being contrary to public policy”. See Regina v Gilbert Fanugbo [1963] 2 All Nigeria Law Reports 142.

slavery129 over a child. Where the best interest of the child is maintained, control which is exercised does not meet the threshold of possession, it is exercised in a fiduciary manner. Agency remains with the child, and unpacked over time with the stewardship of the parents or guardians. Yes, control is exercised by parents and guardians, but only with difficulty might we say this is slavery. Using the threshold of control tantamount to possession, we can also distinguish cases within a tighter band, between slavery and lesser instances of exploitation. For instance, where a person is required to labour for less than minimum wage under the menace of being fired, such an instance of forced labour while being exploitive does not meet the threshold of enslavement. The individual involved has freedom beyond the workplace, they can leave their job at will. Slavery in law requires more. Before going on to consider other powers attaching to the right of ownership beyond possession, it might be worthwhile to pause for a moment to provide clarity to the time element in issues of slavery. Mention has already been made that control tantamount to possession will operate in such a manner as to significantly deprive a person of their individual liberty. This understanding is recognised in the Elements of Crimes adopted by the International Criminal Court and speaks to Justice Hayne’s consideration in Tang – which it might be emphasised here is based on an historical reading of the jurisprudence of the United States Supreme Court – of the antithesis of slavery being freedom. However, what I wish to emphasise is that such a diminution of autonomy should be evidenced as being for an indeterminate time for the person enslaved. While one might consider that in cases of chattel slavery of old, where a de jure right of ownership existed, slavery was a status for life. In fact, manumission speaks to the opposite being true. Better to understand both de jure and de facto instances of slavery, whether of a contemporary nature or as an historical manifestation as being or having been indeterminate in duration for the person enslaved. That is to say, that it is for the owner, not the slave, to determine when the status or condition of slavery ceases. In a situation of chattel slavery, a slave might expect to continue to be a slave throughout his or her life; and yet this could change at the whim of his or her owner, who could decide to manumit or free their slave. Likewise, in a contemporary situation, where a person exercises control tantamount to possession over another, the enslaved may not consider that they will be in this situation for their lifetime, but the period of time of their enslavement is indeterminate, beyond their control and centred

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on the determination of the person holding them in a condition of slavery.58 This raises a difficult question: would not rape amount to slavery, as in the instance which rape transpires, the attacker holds powers attaching to the right of ownership? Control is established and that control is – for the victim – indeterminate while the attack takes place. If we follow this reading of what transpires during the crime of rape, then indeed the legal solution does not allow for an easy answer. The approach might be to say that while rape meets the threshold of slavery, it is worth maintaining the distinction in law as does the International Criminal Court which provides for both the war crimes of rape and sexual slavery. However, such a distinction would be subjective in nature: while acknowledging the indeterminacy of an episode of rape, one might consider rape as an attack – a short, violent episode – whereas a longer duration of indeterminacy might be expected in slavery. Yet, such a reading is fraught with a lack of legal certainty. More stable legal terrain may be found in accepting that in cases of rape, while control is present, it has not been asserted to the extent that we would recognised the threshold of being tantamount to possession. That is to say, that control is not tantamount to possession. While maintaining the legal integrity of the crime of rape, the cold, legal, analogy might be found in the law of finders, that while a person may possess something, a claim to ownership can only hold where there has been an abandonment of a proprietor claim by another. That in rape there has been a negation of agency, not abandonment. Turning now to consider other powers attaching to the right of ownership. With possession being the foundation upon which the edifice of ownership is built, it should be recognised that a mutual relationship exists between it and the other powers attaching to the right of ownership. That relationship is such that on the one hand, the foundation of control tantamount to possession makes possible the exercise of further powers; while on the other hand, an exercises of a further power attaching to the right of ownership may serve to indicate the presence of control of a person tantamount to possession. This correlative relationship allows for a

58 Consider the Brima case before the Special Court for Sierra Leone, where the Trial Chamber accepted that “a person may be enslaved for a short period of time provided that in that time the perpetrator intentionally exercised a degree of control over the person sufficient to constitute the actus reus of the cime [re: the exercise of those powers attaching to the right of ownership]”. See Brima et als. case, Special Court for Sierra Leone, Trial Chamber, Judgement, SCSL-2004-16-T, 20 June 2007, pp. 364–365.

slavery131 recognition that any (or all) of the powers attaching to the right of ownership, when exercised in the context of a relationship of control tantamount to possession, will constitute – in law – slavery. The first of these other powers attaching to the right of ownership will be the most obvious, the ability to buy or sell a person.59 In considering the ability for a person to sell another human being, the notion of control tantamount to possession as a background relationship helps explain how such a transaction can transpire. In a situation where in the main, the ability to sell oneself into slavery no longer exists; one might consider what would compel a person to allow themselves to be a subject of such a transaction. I would suggest that the answer lies in the control exercised over that person through violence or coercion which then takes from that person the freedom to say no or to walk away from the nefarious deal. Looked at another way, it is not uncommon for a professional athlete, who is displeased with his or her labour relationship, to complain about being treated as a slave.60 This is often manifest in situations where athletes are traded to another club or team and complain that they are being treated like slaves, having been bought and sold. In such a situation, while it may be true that their services have been sold by a club and bought by another, such a transaction fails to meet the threshold of slavery if there is a lack of control over the athlete which would amount to possession. While the football player having been sold to another team may be ‘forced’ to move cities and may deem this unfair; they will not be compelled to go under threats of violence. The athlete may not like it, but they can walk away; their freedom to chose remains intact, at least in the sense of going to the new club or changing professions. In cases of slavery, somebody is 59 An historical footnote might be added here of the 1963 case before the High Courts of the Federation, Nigeria, in which there was a de facto sale of a person. The Court noted that the legislation under consideration allowed for the prosecution of such a sale as “There cannot be a ‘real sale’ of a human being as a slave, as such sale will be illegal and void ab initio as being contrary to public policy”. See Regina v Gilbert Fanugbo [1963] 2 All Nigeria Law Reports 142. 60 Consider one such incident in 2011, where Adrian Peterson, and professional (American) football player for the Minnesota Vikings took issue with the tactics of the owners of National Football League in locking out the players as part of a labour dispute, saying that this was “modern-day slavery”. While Peterson later apologised for his statement saying “there is nothing, absolutely nothing that you can compare to slavery”; in the era of social media, another footballer, the running-back for the Green Bay Packers, Ryan Grant, comment on Twitter that “I have to totally disagree with Adrian Peterson’s comparison to this situation being modern-day slavery. […] There is unfortunately actually still slavery existing in our world. Literal modern-day slavery”. See Judd Zulgad, “Peterson Regrets Earlier ‘Slavery’ Comment”, Star Tribune (Minnesota), 5 August 2011. See http:// www.startribune.com/sports/vikings/126921718.html.

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exercising control in such a manner as to significantly deprive the enslaved of their individual liberty; they are dictating what the enslaved is to do and backing this up by actual or latent violence. So, it is not enough to meet the threshold of slavery to say that a person has been ‘bought’ or ‘sold’, though it may an indication of slavery being present. What is required is to first establish, in substance, whether control tantamount to possession is present; in such cases the buying or selling of a person is evidence of slavery. In considering the notion of the power to buy or sell somebody as being an incident of ownership, we are actually speaking of such incidents within a larger conception of property law of transfer, in this case, of human beings. Beyond the buying or selling of a person, the grouping of transfer includes similar transactions to buying or selling, such as bartering, exchanging, or the giving or receiving of a person as a gift. As part of her 2011 considerations of Ecuador, the United Nations Special Rapporteur on Contemporary Forms of Slavery, Gulnara Shahinian, noted such a transfer, in the context of the lending or renting of children: The Special Rapporteur also received information about the ‘lend or rent of children’ for small amounts of money for the entire period of work ranging from 30 to 80 dollars to ‘help’ those to whom they have been lent in a wide variety of tasks. During the time children are lent, they are left at the full mercy of their ‘tenants’ and their parents are unaware of the whereabouts or occupation of their children. While in some instances children have been reported to be “used” as street vendors and farm workers, in others they have been reported to be in domestic servitude or smuggled to neighbouring countries (including Chile, Colombia, Peru and the Bolivarian Republic of Venezuela) for forced labour activities, sexual exploitation and mendicity.61

We might also include within this power manifest in ownership the transferring of a person through inheritance or the conveying of the status or condition of slavery to a successive generation. With regard to the former, Human Rights Watch noted, in its 2003 Report on the violations of women’s property rights in Kenya, that it was rather common for widows, upon the death of their husbands, to be inherited by a member of his family. The Kenyan customary law principles were such that all property of the deceased man reverted to his family; this including his wife. If she was to

61 United Nations, General Assembly, Human Rights Council, Report of the Special Rapporteur on Contempoary Forms of Slavery, including its Causes and Consequences, Gulnara Shahinian, UN Doc. A/HRC/15/20/Add.3, 20 June 2011, p. 13.

slavery133 refuse, she would be denied any property and thus be left destitute.62 Where conveyance is concerned, slavery from one generation to the next still persists in Mauritania, where, as the Special Rapporteur on Contem­ porary Forms of Slavery has noted, as a society, Mauritania is “highly stratified along ethnic and racial lines”, where “slaves and their descendants [come] at the very bottom”.63 Although, the Special Rapporteur noted in her 2010 Report that officials from the West African State “denied the existence of slavery” as it had been “legally abolished”; she saw things otherwise, concluding “that de facto slavery continues to exist in certain remote parts of Mauritania”: After analysing the interviews conducted with victims of slavery in Atar, in Rosso and from Nema, the Special Rapporteur believes that the situations described to her meet the key elements that define slavery. The victims described situations whereby they were completely controlled by their owner using physical and/or mental threats; could not independently make any decision related to their lives without his or her master’s permission; were treated as commodities – for example, girls being given away as wedding presents; lacked freedom of movement; and were forced to work long hours with very little or no remuneration. In addition, the victims were further denied the right to inherit. These victims had escaped slavery and talked about the relatives that they had left behind who still lived in slavery.64

To sum up, while driving the point home, it should be recognised that the transferring of a person, such as in a case of buying or selling (or in the other examples given) is a power attaching to the right of ownership. Such a transfer will amount to slavery only in situations where a person exercises control tantamount to possession over another. That said, the transferring of a person may also act as an indicator of the presence of such control in a given situation. A further instance of the powers attaching to the right of ownership will be the ability to use a person. It will be recalled that in his 1953 Report, the United Nations Secretary-General, identified one of the powers attaching 62 See Human Rights Watch, See Human Rights Watch, Double Standards: Women’s Property Rights Violations In Kenya, Vol. 15, No. 5 (A) – March 2003, pp. 10–12. 63 United Nations, General Assembly, Human Rights Council, Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, Gulnara Shahinian, Mission to Mauritania, Addendum, UN Doc. A/HRC/15/20/Add.2, 16 August 2010, p. 6. 64 Id., p. 10. See also International Labour Office, International Labour Conference, 101st Session, Item III, Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, Report III (Part 1B), 2012, pp. 124–125.

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to the right of ownership as being characterised in the following terms: “the master may use the individual of servile status, and in particular his capacity to work, in an absolute manner, without any restriction”. Again, like the other powers manifest in ownership, it should be recognised that the simple use of a person does not amount to slavery. The SecretaryGeneral for his part spoke of the ability to use somebody ‘in an absolute manner’. With regard to the definition of slavery which is framed in a property law context, it seems best to conceive of the use of a person as meeting the threshold of slavery where such use is exercised against the background relationship of control which amounts to possession. By using a person, what is meant here is deriving benefit from their service or their labour. A slave then could be used by working for little or no pay, utilised for sexual gratification, or used in providing a service. While fuller consideration is given to the issue in Chapter Seven, the phenomenon of ‘forced marriages’ in recent wars in Africa is instructive. In a typical case across conflicts in Democratic Republic of the Congo, Liberia, Sierra Leone, Rwanda, and Uganda, a woman is abducted by rebel forces in a military raid, is taken possession of through threats of death and acts of violence, including rape. Once having submitted to the will of the soldier, she was forced to porter, to cook, and to wash clothing, under a false paradigm of ‘forced marriage’. In this context, such soldiers benefit from the use of the enslaved, as the women’s sexual autonomy has been taken away from her, while her ability to determine in any manner what she will do is forfeited. The corollary of this then is that the solider could use his victim in a manner which truly speaks to having dominion over her: a use without limit. Closely associated with the use of a person, is the power to manage the use of a person. In general terms, it goes without saying that to manage a person is not to enslave them. Division of labour is such that employers make legitimate decisions on a daily basis with regard to the management of workers. Where such management of a person will amount to slavery is when there exists control tantamount to possession. Such management can be thought of in either direct or more abstract terms. In the abstract, the management of the use of a person may assist in consolidating the enslavement process. Having once established possession over the person, say through violence, the enslaved may be managed in such a manner that the need for active violence recedes, to be replaced by latent forms of violence and coercion and ultimately, the acceptance of one’s new fate. This will often take place by managing the use of that person, in such a manner as to forge a new identity thus isolating the individual, making them more

slavery135 malleable to their new condition. Such a process might transpire through the compelling of a new religion, language, place of residence or marital relationship. Think here of the fate of Eastern European girls who have been deceived through false promises of a better life, only to be taken to a foreign country with an alien tongue; being beaten and raped into submission so as to be made malleable for exploitation as a sex worker on the Western European market. In more direct terms, management of the use of person which would meet the threshold of slavery would, in the first instance, require that background relationship of control tantamount to possession. From there, the management of the use of the slave would be evident where the slaveholder delegates management responsibility of the use of the slave to another. This might transpire in cases of night managers of a brothel who has been delegated authority to manage sex workers in situations of enslavement. A more concrete example of such direct management is to be found in the case of Swarna v. Al-Awadi and Al Shaitan, heard before a United States Court of Appeals in 2010. That case, beyond manifesting direct management of a person enslaved, also raised an interesting issue of public international law regarding diplomatic immunity. Vishranthamma Swarna, an Indian national, came to work for Al-Awadi and Al-Shaitan in New York City; the former acting as Third Secretary to the Permanent Mission of the State of Kuwait to the United Nations. Swarna’s ordeal was horrific, she was sequestered in the diplomat’s home, effectively denied contact with the outside world, forced to work long hours with little food or privacy, beaten and raped.65 Managing to escape, Swarna ultimately brought a 65 Consider the following description by the Court of the what transpired to Vishranthamma Swarna: The individual defendants did not permit Swarna to leave the apartment without supervision, and even when she was so permitted – which occurred ten to fifteen times during the course of four years – she was instructed to look down at the ground and to avoid making eye contact with anyone. Swarna was usually locked inside the apartment, she was not permitted to use the telephone, and she was prohibited from speaking to anybody outside of the individual defendants’ family. To prevent Swarna from speaking with other people, she was confined to her room “[w]henever the handyman, electrician, or others visited the apartment during the day”. […] They also intercepted calls from her family in India, read her mail, and read her letters before she could send them to her family. To this end, an official from the Kuwait Mission was arranged to translate Swarna’s correspondence. […] The individual defendants repeatedly assaulted and abused Swarna, both physically and psychologically. For example, Swarna was threatened to have her tongue cut out and was dragged by her collar on several occasions. The individual defendants referred to Swarna as ‘dog’ or ‘donkey’, and forcibly cut her hair – which was “an important part of [Swarna’s]

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default judgement claim against Al-Awadi and Al-Shaitan and Kuwait, as Al-Awadi had left to take up a posting in Paris. When Kuwait and Al-Awadi responded to the case, it was argued that Al-Awadi was immune from the local jurisdiction as a result of being in the diplomatic service. While the Court of Appeal recognised the sovereign immunity of Kuwait, it denied that Al-Awadi or his wife maintained residual immunity after leaving the United Nations posting; thus allowing the default judgment.66 The Court pointed out that diplomats lose much of their immunity upon leaving their post, but where residual immunity did persist it related, in the words of 1961 the Vienna Convention on Diplomatic Relations, to ‘acts performed […] in the exercise of his function as a member of the mission”. While Al-Awadi sought protection of the Vienna Convention, the Court decided that: Ultimately, however, Al-Awadi’s argument must be rejected, as it assumes a fact that is not supported by the record. The alleged facts clearly show that identity and sense of self” – against her will. Swarna slept in the children’s bedroom, she had no privacy and no place of quiet refuge, and she often cried herself to sleep. By mid-1998, Swarna, who weighed 150 pounds before working for the individual defendants, weighed only 100 pounds and looked as if she was afflicted with tuberculosis. Swarna’s diminished constitution prompted the individual defendants to order Swarna “to get a checkup for [tuberculosis]”. Swarna’s checkup, which occurred at her own expense, did not reveal any signs of tuberculosis. In September 1998, Al-Awadi raped Swarna. He threatened to kill her if she told anyone, particularly his wife Al-Shaitan. Al-Awadi thereafter raped Swarna “on many occasions”, and Swarna “constantly feared that [Al-Awadi] would rape me at any time when Al-Shaitan was not at home”. These abusive conditions led Swarna to suffer hair loss, nightmares and fatigue, and caused her to contemplate suicide. When I was working in the Al-Awadi’s kitchen, I could look out the window and see the view of what I now know to be the East River and the Citibank office tower in Queens. I often imagined escaping the Al-Awadi home so that I could jump in the river, drown myself, and end the misery of my life in the Al-Awadi home. It was only the enduring need of my sick husband and five children in India that kept me from doing so. On or about June 25, 2000, the individual defendants and Swarna were preparing for a trip to Kuwait. Swarna begged to be sent back to India. Al-Awadi became angry, screamed at Swarna, and threw a packed suitcase at her. This attack caused Swarna to bleed and left bruises on her body. Al-Awadi then threatened to hit Swarna with an iron rod. Al-Shaitan slapped Swarna across the face, and Al-Awadi warned Swarna that if she did not continue to work for him, she would be harmed during the family’s trip to Kuwait, where his brother and father were “high ranking police officials”. Swarna v. Al-Awadi and Al Shaitan, United States Court of Appeals for the Second Circuit, 622 F.3d 123, 24 September 2010, p. 3. 66 Article 39(2) of the 1961 Vienna Convention on Diplomatic Relations reads: When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he

slavery137 Swarna was employed to meet Al-Awadi’s and his family’s private needs and not any mission-related functions. Swarna worked an average of seventeen hours a day, seven days a week, cooking, cleaning, caring for Al-Awadi’s children, and tending to the family’s personal needs. Al-Awadi also allegedly raped Swarna. If Swarna’s work for the family may not be considered part of any mission-related functions, surely enduring rape would not be part of those functions either.67

In this case, the Kuwaiti diplomat clearly managed Vishranthamma Swarna; the lower court noting that the “supervision and management of a domestic servant who was required to cook, clean, care for the children, and otherwise tend to the diplomat’s personal affairs, but also required to assist in entertaining official guests at the diplomat’s home” did not amount to mission-related functions.68 A further power attaching to the right of ownership stemming from the use of a person, in the context of slavery – where control tantamount to possession is present – is to profit from the use of a person. While we might ordinarily think of a person profiting from another person in the sense of making money from them, in property law the concept would go further so that slavery might include profit which emerges from the mortgaging of a person, from a person being let for profit, or being used as collateral. When we consider the example of tomato picking in the United States, agricultural workers who are controlled in a way which deprives them of their individual liberty in such a manner as to recognise in them the type of control tantamount to possession, we would identify two instances of profit being accurate from the use of these workers. In the first instance, the individual gaining profit would do so from the crop which has been harvested, so gaining from – dare it be said – the fruits of that labour. Second, profit would also be acquired by the appropriation of wages; in cases where little or no money was paid to the agricultural workers for their labour.69

leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. 67 Swarna v. Al-Awadi and Al Shaitan, n. 65, p. 5. 68 Id. 69 Consider the nine prosecutions of slavery and lesser servitudes brought about as a result of the Anti-Slavery Campaign by Coalition of Immokalee Workers, at: http:// www.ciw-online.org/slavery.html; and also, see Organization of American States, InterAmerican Commission on Human Rights, José Pereira/Brazil, Friendly Settlement Report Number 95/03, 24 October 2003; relating to the serious injury of José Pereira and the death

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A final instance of a power attaching to the right of ownership with a link to the use of a person is the ability to use up property; to exhaust a thing owed; or to consume it. One can use a car until it is run into the ground, one can exhaust a pack-mule, or consume food. In the case of slavery this power attaching to the right of ownership might be understood as the ability to dispose of a person. In such a context, the mistreatment or neglect of a person may point to slavery. However, where control tantamount to possession is present, the mistreatment or neglect of a person that would lead to their physical or psychological exhaustion, and ultimately, if it was to continue, to their destruction, would be an act of slavery. The consideration of the power to dispose of a person as constituting a power attaching to the right of ownership speaks to the ability to use a person, to exhaustion, so that the slave might be consider as being disposable. Evidence of such mistreatment or neglect might include sustained physical and psychological abuse, whether it is calculated or indiscriminate. The imposition of such physical or psychological demands would severely curtail the capacity of the human body to sustain itself or function effectively”. In this manner the person would, effectively, be disposable. In property law one further instance of ownership might be recognised, that of ‘security of holding’. Such security of holding would protect property from attempts by others to take it, or the State to expropriate it. As is recognised in international law, while the State is allowed to expropriate foreign property with fair compensation, domestically that expropriation – depending on the State – should, in the main, respect due process. In the case of contemporary slavery, as the State no longer recognises a property right in persons, no such security of holding will exist. Instead, where slavery is concerned one should look to the opposite being true, that there exists an ‘insecurity of holding’, wherein there is a duty on the State to ‘expropriate’ or to ‘confiscate’ individuals held in slavery so as to reverse the deprivation of liberty by freeing them from their situation. Such insecurity of holding is made plain by the International Covenant on Civil and of another worked “when both attempted to escape, in 1989, from the ‘Espírito Santo’ estate, where they had been drawn with false promises concerning working conditions, and found that they had to work forcibly, without the freedom to leave and under inhumane and illegal conditions, which they suffered along with other 60 workers on that estate”. Brazil recognised that the case was “illustrative of a more general practice of ‘slave’ labor and of the lack of judicial guarantees and labor security, which make this practice widespread”. As a result, Brazil utilised this case to commit itself to far-reaching measures to combat what it has termed slave labour.

slavery139 Political Rights which establishes that each State Party must “ensure to all individuals within its territory and subject to its jurisdiction” are not to “be held in slavery” and that “slavery and the slave trade in all their forms shall be prohibited”.70 Flowing from the 1926 Slavery Convention is the requirement that States “adopt the necessary measures in order that severe penalties may be imposed” with regard to “the complete suppression of slavery [and] the slave trade.71 Whereas Article 6(1) of the 1956 Supplementary Convention goes further, requiring ancillary elements touching on slavery to be criminalised: The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

Beyond this, the 1956 Supplementary Convention also requires that “mutilating, branding or otherwise marking a slave” be criminalised.72 Lest one think that such mutilation is a thing of the past, in the 2006 Judgment before the Inter-American Court of Human Rights in the Case of MonteroAranguren et al (Detention Center of Catia) v. Venezuela, a statement by a Jesuit priest was included which noted that: Inside Detention Center of Catia ‘the strongest dominated the weakest’. This was condoned by prison officers. In addition, this type of dominance was represented graphically by branding inmates who served as slaves. There

70 Articles 2(1) and 8(1), United Nations International Covenant on Civil and Political Rights, 1966. Note also in the European context the positive obligations with regard to ‘trafficking/slavery’ are wider, as a result of Rantsev v Cyprus and Russia, Application no. 25965/04, 7 January 2010. I say ‘trafficking/slavery’ as the Court stated: that it “considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership”. European Court of Human Rights, Rantsev v Cyprus and Russia, Application no. 25965/04, 7 January 2010. p. 68. See Jean Allain, “Rantsev v. Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery”, Human Rights Law Review, Vol. 10, 2010, pp. 546–557. 71 Article 6, Slavery Convention, 1926. 72 Article 5, 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery reads: In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article I of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

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chapter three were two types of slavery: labor slavery and sexual slavery. Labor slaves were branded with a burner, like cattle brands, which identified who owned the slave, i.e. who was the head prisoner of the hall. If they were branded on the buttocks, they were sexual slaves.73

Likewise, the 2004 Report of the Sierra Leone Truth and Reconciliation Commission noted that women and girls who had been abducted and forced to take up arms were sometimes branded. The Truth and Recon­ ciliation Commission considered their existed “a deliberate policy […] to target girls and women between the ages of 13 and 24 and forcibly ‘brand’ them with the acronyms of the fighting forces”, by “deliberately marking them on their chests”, via the “carving the initials of the particular fighting force”.74 Beyond the contractual obligations flowing from the 1926 and 1956 Conventions, further imputes towards States interfering with the relationship between the slave-holder and the slave and ensuring an insecurity of holding is to be found in the positive obligations flowing from international human rights law. The Rantsev case before the European Court of Human Rights is instructive. While only binding the parties and forming part of the jurisprudence meant to be applicable within the Council of Europe; beyond the shores of Europe it is worth noting de lege ferenda. That case, which turned on the short life and death of Oxana Rantseva who had come to work in a night club in Cyprus. Having left the job after three days, her former employer sought to have her arrested on immigration charges; this failed, but the police released Ms Rantseva into the hands of her former employer, in whose house she succumbed to her death the same night. The Court found Cyprus in breach of Article 4 of the European Human Rights Convention for failing to give Ms Rantseva “practical and effective protection against trafficking and exploitation”; it having stated that it considered “that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership”.75 Caution must thus be exercised in the following consideration as the European Court conflates trafficking and slavery and thus the

73 Inter-American Court of Human Rights, Case of Montero-Aranguren et al (Detention Center of Catia) v. Venezuela, Judgment (Preliminary Objection, Merits, Reparations and Costs), 5 July 2006, p. 23. 74 Sierra Leone Truth and Reconciliation Commission, Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission, Volume 3B, 2004, p. 142. 75 European Court of Human Rights, Rantsev v Cyprus and Russia, Application no. 25965/04, 7 January 2010. p. 68 and 86.

slavery141 positive obligations now considered must be seen in that light. That said, it is worth restating that these positive obligations will be applicable within Europe, while only carrying persuasive value beyond the Council of Europe. The European Court of Human Rights first sought to confirm its earlier determination that there is “a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour”. To comply, the Court noted, States must “put in place a legislative and administrative framework to prohibit and punish” violations related to Article 4 of the European Human Rights Convention, which set out the prohibitions against slavery, servitude or forced or compulsory labour. The Court then noted that in certain circumstances, States may have to take operational measures to protect victims, or potential victims”. […] A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests”.76 It is through the various positive obligations that States are meant to disrupt the relationship between the person holding a slave and the individual enslaved. It is through these obligations that the last of the powers attaching to the right of ownership is given effect, wherein an insecurity of holdings is meant to ensure that no relationship where one person controls another in the same manner as they might possess a thing is allowed to persist. Conclusion This Chapter has set out an approach to interpreting the internationally recognised definition of slavery. The ordinary meaning of the term slavery as first set out in the 1926 Slavery Convention, but confirmed in 1956 and introduced, in substance, as the definition of enslavement in the 1998 Statute of the International Criminal Court, functions within a property law paradigm. Ultimately, an understanding of what constitutes slavery turns on the exercise of the powers attaching to the rights of ownership. 76 Id., pp. 69, 70 and 71. Note also OOO and others v Commissioner of Police for the Metropolis, Queen’s Bench Division, [2011] EWHC 1246 (QB), 20 May 2011, where the police in London, UK, where found in breach of the positive obligation to investigate flowing from Rantsev.

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Having had recourse to the travaux préparatoires, having taken into consideration the object and purpose of these instruments and the recent jurisprudence to emerge from courts, both domestic and international, it appears that not only can slavery be read in such a way as to capture the lived experience of contemporary slaves, but that such an interpretation is, in law, internally consistent with a reading of the definition of slavery. The approach taken: to read the definition of slavery within a property law paradigm creates a unified understanding of slavery which gives it both legal integrity in the court room, but also grounds the study of slavery, of human exploitation and human trafficking, providing a common understanding of the phenomenon from which to study it. Capturing the essence of contemporary condition of slavery through recognising that control tantamount to possession is fundamental to unlocking the potential of the 1926 definition. When consider slavery, recent pronouncements of international courts have set out indicia which point to instances of slavery. Yet, when considering these, they fall broadly into two categories: the means by which one is brought into the condition of slavery – the enslavement process –and what transpires once the enslavement process has taken place – the manner in which the individual is exploited. The reading of the 1926 definition put forward, intervenes between these two and asks: Has the process of enslavement established itself by such control being exercised as we would recognised in a situation where a person possess a thing?; and, is the control such that the exercise of the other powers attaching to the right of ownership – the power to use, to manage, to profit, to transfer or to disposal of person – possible? In so doing, the indicators are evidentiary, but separate from the legal determination of slavery as defined in international law. The value in having this common reading of the definition of slavery is paramount as we moved deeper into the neo-abolitionist era which is spurred on by the anti-trafficking conventions and the creation of the crime of enslavement before International Criminal Court. Established jurisprudence will not only provide consistency amongst international courts, but will also provide guidance to domestic courts, as most States have the prohibition against slavery established in law, but have yet to define or prosecute it. A clarification of the law is the first step towards making this happen.

CHAPTER FOUR

SERVITUDE OR INSTITUTIONS OR PRACTICES SIMILAR TO SLAVERY

In public international law, though it is very much a vestige of the past, servitude is not normally understood as being associated to human beings. Instead a territorial servitude would be more familiar to an international jurist of a by-gone era, a servitude whereby one State established a proprietary right “involving a negative restriction of the territorial rights of the servient State”. Such servitudes allowed access to resources, such as fishing grounds or forests, for the purposes of exploitation by the foreign State. However, as Pitman Potter noted nearly a century ago: “the servitude at international law is doomed […] by reason of the severe blows dealt it by the dogma of sovereignty and independence”.1 Indeed, the predictions of death of the doctrine of territorial servitude made by Potter in 1915 has come to pass, as a result of, in the main, the decolonisation process of the latter half of the Twentieth Century. At first blush, the parallels between territorial servitude and human servitude might appear striking: the exploitation of a resource takes place and proprietary rights are at play. And yet, as will be demonstrated in this Chapter, the parallels with territorial servitude are in fact and in law with slavery; not with human servitude. Where human servitudes manifest proprietary rights, such an exercise of a power attaching to a right of ownership, it should be recognised foremost as slavery and not as a type of servitude. That said, human servitude may possess a dual characterisation. As a servitude, if it meets the definitional threshold set out in international law, such as, say the established definition of ‘debt bondage’. But a human servitude may also be characterised as slavery if, beyond meeting the definitional threshold of a specific servitude, it also manifests the exercise of powers attaching to a right of ownership. As a 1 Pitman Potter “The Doctrine of Servitudes in International Law”, The American Journal of International Law, Volume 9, 1915, pp. 630 and 641.

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result, in a given situation, in law, the same facts could reveal both a case of debt bondage and a case of slavery. In law, a characterisation of such a scenario – one in line with the object and purpose of the 1926 Slavery Convention which set out to secure “the complete suppression of slavery in all its forms” – would be to speak of a case of slavery in the form of debt bondage. Keeping this understanding of the possible dual character of human servitude, let us now drop the adjective ‘human’ and simply speak of ‘servitude’. This Chapter examines four servitudes, those conventional servitudes established by the 1956 Supplementary Convention. In so doing, this Chapter gives clarity to an area of the law which has been assailed by a fundamental strike against the integrity of the very notion of servitude, rendering it all but inaccessible as a tool to be used in seeking legal redress to suppress such exploitation. The first of these assaults was the replacement of the term ‘servitude’ by that of ‘institutions or practices similar to slavery’ in the 1956 Supplementary Convention. The second was the development, within the United Nations human rights system, of the non-legal term ‘slavery-like practice’ which has sowed confusion, having often been used interchangeably with the somewhat abbreviated term ‘practice similar to slavery’. For the sake of clarity early on, it should be emphasised that the term slavery-like practice has no legal standing in international law. By contrast, the term practice similar to slavery, as will be demonstrated, is a legal term; and should be understood as being, in law, synonymous with servitude. To speak of an ‘assault’ is not to use the term lightly; as the net result of the introduction of this nomenclature has meant the obfuscation of the legal area which should be occupied by servitude. This Chapter then develops an understanding of the area which servitudes occupy in international law, providing clarity and legal certainty which has been, for the most part, impenetrable without the background understanding which will be provided here. In so doing, emphasis is placed on the four conventional servitudes set out in the 1956 Supplementary Con­vention as constituting that legal area. Such an emphasis is not only meant to unpack the legal understanding of those four conventional servitudes; it also is a call to leave behind the futile attempts, which have transpired primarily in international human rights law for well over half a century, to give standalone content to the term ‘servitude’. Better would be for international courts and treaty-monitoring bodies to rely on, as they have with the terms slavery and force labour, the established definition set out in international instruments.

servitude145 Providing Clarity to Servitude As originally conceived, and throughout its evolution, servitude has not been defined in international law. Instead, servitude should be understood as the amalgamation of a handful of practices which are, beyond forced labour, defined by the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. Servitude is international law is categorical not definitional. The various types of servitudes which found their way in the 1956 Supplementary Convention were first outlined by the Temporary Slavery Commission in 1924–1925. As the 1926 Slavery Convention dealt only with slavery and the slave trade; servitude was only developed after the Second World War, within the United Nations system. It emerged in a rather inauspicious manner, as in 1947, the United Nations Commission on Human Rights provided the first draft of what would emerge as the Universal Declaration of Human Rights, in which it proposed the prohibition of slavery and forced labour, but allowed for – using a term of United States Constitutional law – ‘involuntary servitude’: Slavery and compulsory labour are inconsistent with the dignity of man and therefore prohibited by this Bill of Rights. But a man may be required to perform his just share of any public service that is equally incumbent upon all, and his right to a livelihood is conditioned by his duty to work. Involuntary servitude may also be imposed as part of a punishment pronounced by a court of law.2

By 1948 and the adoption of the Universal Declaration of Human Rights, gone was the adjective ‘involuntary’; and the declared aim was that: “no one shall be held in slavery or servitude”. The introduction of the term servitude in the 1948 Universal Declaration would have major significance during the negotiation of an instrument meant to supplement the 1926 Slavery Convention. As originally proposed, what would come to be the 1956 Supplementary Convention was, in 1954, termed the Draft Supplementary Convention on Slavery and Servitude. The very essence of this instrument was meant to address various types of servitudes. And yet, by the time the 1956 Supplementary Convention was signed, the very term ‘servitude’ was expunged from the substantive

2 United Nations, Economic and Social Council, Commission on Human Rights, Drafting Committee, Draft Outline of an International Bill of Rights, UN Doc. E/CN.4/ AC.1/3, 4 June 1947, p. 4.

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elements of the text. To understand the context in which this transformation took place, one must return to consider the work of the United Nations shortly after the adoption of the Universal Declaration. In 1949, the United Nations decided to consider the issue of slavery. This resulted in the appointment of the Ad Hoc Committee on Slavery which surveyed the “field of slavery and other institutions or customs resembling slavery” and, as result, in 1951, called for the adoption of a supplementary convention which would affirm the 1926 Convention and define various forms of servitude.3 That precipitated the move by the United Kingdom to put forward a 1954 Draft Supplementary Convention on Slavery and Servitude which was considered by the United Nations Economic and Social Council and, in 1955, was handed over to the ad hoc Committee on the Drafting of a Supplementary Convention on Slavery and Servitude for further consideration. It was within this Committee that the term ‘servitude’ would come to be substituted. This replacement was in no way related to the term itself. Instead, what was ultimately at issue was the obligations which would flow from the use of the term servitude in light of (or better yet, in the shadow of) the provision of the Universal Declaration of Human Rights which stated that no one should be held in servitude. Instead of setting out an obligation to abolish servitude forthwith, the Representative of the Union of Soviet Socialist Republics led the way in gaining agreement amongst the negotiating States to follow the path of the 1926 Slavery Convention which required that States “bring about progressively and as soon as possible the complete abolition of”, in the case of the 1956 Supple­ mentary Convention: servitudes. As between the Universal Declaration which aspired to the complete abolition of servitude and the move in 1956 to abolish the various servitudes ‘progressively and as soon as possible’, something had to give. The solution, if one wishes to call it thus, was to remove the very term ‘servitude’ from the 1956 Supplementary Convention, replacing it with the term ‘institutions or practices similar to slavery’. This was quite evident in the record of the discussions of the ad hoc Committee on the Drafting of a Supplementary Convention on Slavery and Servitude; wherein the challenge to the term ‘servitude’ came when the United Kingdom proposed that the title of the Convention be changed from the ‘Draft Convention on Slavery and Servitude’ to the ‘Draft

3 United Nations, Economic and Social Council, Resolution 238(IX), 20 July 1949.

servitude147 Convention on the Abolition of Slavery and Servitude”.4 It was at this point that the Representative of the Soviet Union feigned linguistic difficulties with the term servitude5 – despite the only addition having been the word ‘abolition’ – and proposed that the phrase ‘servitude’ be replaced by the term ‘institutions and practices similar to slavery.6 Once this was accepted, the Soviet Representative sought, and gained, the removal of the term ‘servitude’ from the rest of the Draft Convention. As a result, the official title of the 1956 Supplementary Convention no longer speaks of servitude, but is entitled: the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.7 It is worth recalling that when the 1956 Supplementary Convention was negotiated no international human rights law was in place – at least not at the universal level. In fact, in 1956, the French Representative noted that the move toward the Covenants appeared to be dead in the water, stating that where these were concerned, “it was considered that there was apparently no intention of taking further action”.8 Posterity has proven the French Representative wrong, the 1966 United Nations International Covenant on Civil and Political Rights reads, at Article 8(2): “No one shall be held in servitude”. With this in mind, it is rather difficult to see how, after more than half a century of evolution of international human rights protection, a State could depended on the provisions of Article 1 of the 1956 Supplementary Convention to defend a wish to progressively abolish a servitude within its jurisdiction. It will be recalled that the obligations of the Supplementary Convention are that States Parties ‘take all practicable and necessary legislative and other measures to bring about progressively and as soon as 4 United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, United Kingdom: Proposed title and preamble of the Draft Convention on the Abolition of Slavery and Servitude (E/2540/ Add.4), UN Doc. E/AC.43/L.18, 19 January 1956. Emphasis added. 5 United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eight Meeting, 20 January 1956 UN Doc. E/AC.43/SR.8, 17 February 1956, p. 3. 6 United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Ninth Meeting, 23 January 1956 UN Doc. E/AC.43/SR.9, 17 February 1956, p. 3. 7 See Jean Allain, “On the Curious Disappearance of Human Servitude from General International Law”, Journal of the History of International Law, Vol. 11, 2009, pp. 303–332. 8 See United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc. E/CONF.24/SR.4, 11 November 1958, p. 9.

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possible the complete abolition or abandonment” of those institutions and practices similar to slavery. In addressing the issue, the European Court of Human Rights in the Siliadin v France case simply dropped the phrase ‘progressively and as soon as possible’ without comment or notice, simply stating that under the 1956 Supplementary Convention, “each of the States Parties to the Convention must take all practicable and necessary legislative and other measures to bring about the complete abolition or abandonment of the following institutions and practices: […]”.9 For a State to say that it is tolerating a type of servitude – say servile marriages – but is taking ‘all practicable and necessary legislative and other measures to bring about’ the end of that servitude ‘progressively and as soon as possible’, would likely not stand up to judicial scrutiny. As a result, the very justification for having suppressed the term ‘servitude’ from the 1956 Supplementary Convention meant to deal with that specific topic is no longer valid. This opens the possibility of speaking in terms of ‘conventional servitudes’ when considering the 1956 Supplementary Convention. This possibility is worth pursuing, due to the confusion which exists between the legal phrase ‘institutions and practices similar to slavery’ which is often shortened to read ‘practices similar to slavery’. The emergence of the term ‘slavery-like practice’ within the United Nations resulted from a diplomatic compromise. This compromise should be understood as the second prong of the assault on the term servitude as it sows, through the adoption of this term, confusion with the legal terminology; thus blurring the distinction between the conventional servitudes set out in the 1956 Supplementary Convention and other phenomenon which do not meet the legal threshold of the conventional servitudes. How did the introduction of the term ‘slavery-like practice’ come to pass? In the aftermath of the negotiation of the 1956 Supplementary Convention, monumental changes took place in international relations. For the first ten years of existence of the United Nations, membership was limited by the inability, within the context of the Cold War, of the Soviet Union and the United States of America to agree on a formula which would allow States, beyond the declared allies of the victors of the Second World War, to accede to the Organisation. In 1955, the log-jam of potential members was resolved, and membership in the United Nations has grown from its original fifty-one to its current one-hundred and ninety-three

9 Council of Europe, European Court of Human Rights, Siliadin v France, 26 July 2005, para 125.

servitude149 Member States. The bulk of the new membership resulted from the decolonisation process which ultimately shifted the balance of power from the North to the South within the democratic bodies of the United Nations (i.e.: all UN bodies but for the Security Council). It was this new dynamic within the United Nations which would ultimately create the confusion which persists to this day as between conventional servitudes – those institutions or practices similar to slavery – and ‘slavery-like practice’. The engine which pulled the United Nations towards the term ‘slaverylike practice’ was apartheid. The link was first forged by a comparison being drawn between apartheid and slavery. In 1966, the Union of Soviet Socialist Republics made a submission to the UN Special Rapporteur on Slavery, Mohamed Awad, in which it considered the lack of adherence to the 1956 Supplementary Convention as being “abnormal” and stated that the “main factors upholding and encouraging slavery at the present time are colonialism, apartheid and racism”.10 Awad’s Report was considered by a committee of the UN Economic and Social Council, from which, through its rather contentious deliberation, emerged the term ‘slavery-like practice’. While it was the Soviet Union that first put forward the claim, it was the Representative of the United Republic of Tanzania, Mr. Waldo Waldron-Ramsey, who took the lead in advocating the link between slavery and the conventional servitudes on the one hand and apartheid and, to a lesser extent, colonialism on the other hand throughout the discussion of the Social Committee and penned the phrase ‘slavery-like practice’. For Waldron-Ramsey, it was open for consideration whether apartheid should be deemed slavery or a practice similar to slavery. In his view: the policy of apartheid followed by South Africa in its own territory and in South West Africa, by the racist, traitorous and illegal regime in the Colony of Rhodesia and the colonialist methods applied by the Portuguese Government in the so-called Portuguese territories of Mozambique, Angola, and Portuguese Guinea, were flagrant examples of slavery.  It was manifest that the methods traditionally used by the colonialist must be regarded as practices similar to slavery.11

Waldron-Ramsey disagreed with the proposal by Mohamed Awad that a committee of experts be established to consider issues of slavery, “unless 10 United Nations, Mohamed Awad, Report on Slavery, UN Doc. E/4168/Rev.1, 1966, p. 285. Emphasis in the original.  11 United Nations, Economic and Social Council, Social Committee, Summary Record of the Five Hundred and Thirty-Sixth Meeting, 7 July 1966, UN Doc E/AC.7/SR.536, 14 December 1966, p. 5.

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the endeavour was first made to widen the actual definition of slavery” so as to include colonialism and apartheid.12 Yet this was not to be, as the Representative of Greece challenged this proposal by Waldron-Ramsey: “if it was desired to widen or restrict the definition of slavery as given in those Conventions [read: 1926 Slavery and 1956 Supplementary Conven­ tions], a new conference of plenipotentiaries should be convened. That was the only proper legal procedure and the procedure advocated by the Tanzanian representative in his draft resolution could not be adopted”.13 For his part, Waldron-Ramsey responded that the definition of slavery “should not give rise to any difficulty”. He then provided a definition, saying that slavery “obviously meant the domination of one individual or group of individuals by another”. He continued: “What better example of slavery could be found than the situation at present prevailing on the African continent, in South Africa, Rhodesia and the Portuguese colonies of Mozambique, Angola, and Guinea, not to mention the territory of South-West Africa? Any failure to recognise that would clearly be a denial of the classic definition of slavery”.14 Waldron-Ramsey did not stop there; he made plain that he would not be distracted by States that sought to hide behind the legal definitions of slavery and servitude: The Committee was not asked to go back to the 1926 or 1956 Conventions, to which the Greek representative had referred, but to deal with slavery in 1966. Some delegations interpreted the notion of slavery in a limited technical sense and were endeavouring to restrict its definition to suit their own ends; he was not fooled by their humbug.  They drew attention to the slavery alleged to exist in India and Pakistan where it was supposed to result from traditional debtor-creditor relationships, or in the High Andes of Peru and Bolivia, where it was said to stem from landlord-tenant relationships. In point of fact there was no slavery either in those Asian countries or in Latin America, but slavery undoubtedly existed in the African counties he had mentioned [re: South Africa, Rhodesia, etc.].  Similarly, it had been claimed that forms of slavery were to be found in certain Islamic customs, particularly polygamy. He protested against such allegations which were designed purely to camouflage other motives. Forms of bondage similar to slavery might be said to exist in certain European and

12 Id., p. 6. 13 United Nations, Economic and Social Council, Social Committee, Summary Record of the Five Hundred and Thirty-Eight Meeting, 11 July 1966, UN Doc E/AC.7/SR.538, 14 December 1966, p. 4. 14 Id., pp. 4–5.

servitude151 American countries particularly in the Anglo-Saxon countries where prostitution and drug addiction were rife, as he remembered from the time when he had practised as a barrister in London.  Nor could the question of racialism be excluded, for it was the direct corollary of slavery. In his opinion, the classic definition of slavery he had given should either be accepted or extended to include all related manifestations of it without exception.15

The lines had been drawn. While newly independent States made up the majority of the Committee and thus could set the agenda, they did not command such a majority as to re-write international law. The Greek proposal made this plain as a change to international law would require the convening of an international conference where a two-thirds majority is required to adopt the final text.16 As a result, the ability to equate apartheid or colonialism to slavery or to institutions or practices similar to slavery was, in legal terms, a non-starter. Instead, the text which emerged from the negotiations was a compromise Economic and Social Council Resolution. The text introduced the phrase ‘slavery-like practices’ into the lexicon of the United Nations. The Resolution notes in its preamble that “action should be taken to put an end to slavery and the slave trade in all their practices and manifestation including the slavery-like practices and aspects of apartheid and colonialism”. Likewise, in the operative part of the Resolution, Paragraph 5 reads: “Decides to refer the question of slavery and the slave trade in all their practices and manifestations including the slavery-like practices of apartheid and colonialism, to the Commission on Human Rights”.17 As a result of this Resolution, considerations of human exploitation within the United Nations went from being exclusively legal – based on the 1926 Slavery Convention (i.e.: slavery and the slave trade) and the 1956 Supplementary Convention (i.e.: institutions and practices similar to slavery) – to being considered in political terms as ‘slavery-like practices’. As a result, deliberations within the United Nations no longer took place within the parameters set by legal norms, instead they would come to encompass the limits of the imagination of United Nations’ diplomats, experts, and functionaries, as to what might be considered under the rubrics of ‘slavery-like practice’. 15 Id., p. 5. 16 See Article 9(2), 1969 Vienna Convention on the Law of Treaties. Note also Robbi Sabel, Procedure at International Conferences: A Study of the Rules of Procedure at the UN and at Inter-Governmental Conferences, 2006, pp. 320–324. 17 United Nations, Economic and Social Council, Social Committee, Slavery, Algeria, Gabon, Cameroon, Iran, Iraq, Morocco and the United Republic of Tanzania: draft resolution, UN Doc E/AC.7/L.492, 14 July 1966.

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The manner in which this came to pass was that with this Resolution, the United Nations Economic and Social Council referred “the question of slavery and the slave trade in all their practices and manifestations including the slavery-like practices of apartheid and colonialism, to the United Nations human rights organs.18 In 1972, the Economic and Social Council sought to draw attention “to the close relationship between the effects of slavery, apartheid and colonialism” and directed the Sub-Commission to “examine the possibility of the establishment of some form of permanent machinery to give advice on the elimination of slavery […]”.19 Yet by that time the human rights Sub-Commission proposed a mechanism to deal with issues of slavery, the die had been cast where any possible legal link between apartheid and slavery was concerned. This was so as States moved, in 1973, to establish a convention to suppress and punish apartheid which, even in its earliest draft form, did not make the connection between apartheid and slavery or servitude.20 The nearest that original draft came to making such a link was that the crime of apartheid, which was deemed to be “committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and of systematically oppressing them” and which would transpire through, inter alia, the “[e]xploition of labour of the members of an oppressed racial group”.21 That provision was later modified at the prompting of wording put forward by Nigeria, Pakistan and Tanzania, which sought to bring into the equation forced labour. As a result, when the 1973

18 See United Nations, Economic and Social Council, Resolution 1126 (XLI), 26 July 1966. 19 United Nations, Economic and Social Council, Resolution 1695 (LII), 2 June 1972. Note that the proper title of the human rights Sub-Commission is the Sub-Commission on Prevention of Discrimination and Protection of Minorities; in 1999 it was renamed the UN Sub-Commission on the Promotion and Protection of Human Rights before being replaced in 2006 by the UN Human Rights Council. From this time forward the notion of the slaverylike practice of colonialism never gained any independent footing, instead when ‘slaverylike practice’ was mentioned it was primarily in conjunction with apartheid. The most substantive consideration of the slavery-like practice of colonialism is found in: United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination and Protection of Minorities, Question of Slavery and the Slave Trade in all their Practices and Manifestations, including the SlaveryLike Practices of Apartheid and Colonialism, Report submitted by the Special Rapporteur Mr. Mohamed Awad, UN Doc E/CN.4/Sub.2/AC.2/332, 16 July 1971, pp. 66–76. 20 See Annex I, Guinea and Union of Soviet Socialist Republics: draft Convention on the suppression and punishment of the crime of apartheid. As found in United Nations, General Assembly, Elimination of All Forms of Racial Discrimination, Draft Convention on the Suppression and Punishment of the Crime of Apartheid, Note of the Secretary-General, UN Doc A/8768, 14 September 1972. 21 Id.

servitude153 International Convention on the Suppression and Punishment of the Crime of Apartheid was established, amongst the instances of the crime of apartheid was the “exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour”.22 For its part, it was in 1974 that the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities recommended the establishment of a five-person Working Group on Slavery. It was here, within the Working Group on Slavery (and its later incarnation as the Working Group on Contemporary Forms of Slavery) that the legal regime of slavery and human exploitation gave way to the political; wherein the Working Group, at its very first session in 1975 made plain that it was not going to be bound by the definition of slavery established by the 1926 and 1956 conventions. Instead, while tentatively putting forward two possible broad definitions of slavery, the Working Group was in general agreement “that the definition should be flexible enough to be applicable to any new form of slavery which might emerge in the future and not to limit the scope of investigation of all its possible manifestations”.23 With this in mind, the Working Group did not hesitate, despite the silence of the newly established Apartheid Convention to equate in direct terms apartheid and slavery. “Apartheid”, the Working Group stated, “was considered as the most extended practice of slavery, since the whole population finds itself under the control of a few, through force”. With this as a starting point, some Members of the Working Group considered that apartheid and colonialism “were, in themselves, forms of slavery and, therefore the formulation ‘slavery-like practices of apartheid and colonialism’ should be replaced by the formulation ‘the slavery of apartheid and colonialism”.24 For other Members of the Working Group, slavery was found only in some features of apartheid and colonialism. Over time, the Working Group on Slavery would reinterpret its understanding of the connection between slavery and apartheid, so that in 1977, it determined that “apartheid could

22 See Article 2(e), International Convention on the Suppression and Punishment of the Crime of Apartheid, United Nations, General Assembly, Resolution 3068, 30 November 1973. Note that as Article 5 of the Slavery Convention makes plain, forced labour can develop “into conditions analogous to slavery” (re: in situations where any or all of the powers attaching to the right of ownership are exercised). 23 United Nations, Economic and Social Council, Sub- Commission on Prevention of Discrimination and Protection of Minorities, Report of the Working Group on Slavery on its First Session, UN Doc E/CN.4/Sub.2/AC.2/3, 28 August 1975, p. 4. 24 Id., p. 5.

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be considered a collective form of slavery”.25 Not surprisingly then, in such a context, that the legal value of slavery and the conventional servitudes found in the 1956 Supplementary Convention was lost in the failure of the body which was the de facto guardian of the 1926 and 1956 instruments to maintain a distinction, but instead conflated the political with the legal. In his 1980 Apartheid as a Collective Form of Slavery, the UN SecretaryGeneral sought to rectify the situation, as he noted that this was “the first report prepared for the United Nations which attempts to spell out the various elements of the apartheid system as a slavery-like practice”.26 In speaking about apartheid, the Secretary-General acknowledged that a general consensus had developed within the international community that apartheid should be understood as “the dispossession and oppression by the white ruling minority of the entire black population for the purpose of exploiting its labour”. Flowing from this general consensus was an attempt to deal with the issue in legal terms: apartheid and colonialism in southern Africa are therefore practices similar to slavery and forced labour which rely increasingly on indirect compulsion exercised through discriminatory and repressive legislation, but which have developed out of, and co-exist with, historical forms of direct compulsion.27

“This definition”, the UN Secretary-General writes, “is clearly broader than the definitions of slavery and slavery-like practices [sic: ‘practices similar to slavery’] and of forced labour contained in the Slavery Convention of 1926, the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery of 1956, and the Forced Labour Convention (No. 29) of 1930”. Here then is a primary example, of no less a person than the United Nations Secretary-General being caught out, as between the legal and the political by the term ‘slavery-like practices’. For the Secretary-General, the wider definition “emphasizes the indirect nature of the coercion exercised on the black population and its 25 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination and Protection of Minorities, Report of the Working Group on Slavery on its Third Session, UN Doc E/CN.4/Sub.2/AC.2/389, 30 August 1977, pp. 4 and 6. 26 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination and Protection of Minorities, Apartheid as a Collective Form of Slavery, Report of the Secretary-General, UN Doc UN Doc E/CN.4/ Sub.2/449, 18 July 1980, p. 8. 27 Id., p. 5.

servitude155 historical roots in colonial conquest and expropriation”.28 In essence, the Secretary-General considers the slavery-like practices of apartheid to be exploitation through indirect or structural forced labour. He writes of the “international consensus which holds that apartheid is a slavery-like practice is supported by a variety of recent historical studies which have analysed the development of apartheid as a system of forced labour based on the dispossession and exploitation of the black people of South Africa”.29 As the Secretary-General noted, “apartheid as a slavery-like system relies in the first place on the exercise of control over the conditions under which African labour is made available to white employers”.30 Such control, the Secretary-General reports, includes that of residency (Africans being confined and forced to relocate to ‘bantustans’ or reserved lands, and to settle in single-sex hostiles while providing labour in white areas), of movement (pass-cards attached to labour), and of labour (restricted to low-skilled occupations and through a ‘colour-bar’ to advancement in career). As a result of the limited land available for subsistence farming within the bantustans, along with taxation on each African male, constructed a requirement to provide one’s labour; hence through structural elements of the State, collective forced labour was the result of the South African apartheid system. The Secretary-General concluded his 1980 study by saying that apartheid is “not simply a racial discrimination problem”, but: the essence of apartheid lies in the dispossession of the black population through the imposition of quasi-colonial rule, and in the harnessing of the labour of the vanquished indigenous people through a variety of coercive measures for the profit of white investors, both South African and foreign. The international community has therefore described the apartheid system as a slavery-like practice imposed on an entire collectivity, which can be eradicated only through a complete restructuring of the existing political and economic relationships.31

For the first and only time, within the United Nations system, the notion of the ‘slavery-like practice’ of apartheid was given specific consider­ ation.  The Secretary-General found the link a rather tenuous one, basing himself on the pronouncement of what he termed the ‘policy-making organs of the United Nations’ – in other words, pronouncements of 28 Id. 29 Id., p. 10. 30 Id., p. 18.   31 Id., p. 59.

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the United Nations’ political organs. Within these organs, no clear understanding of the term ‘slavery-like practice of apartheid’ had emerged; instead, in considering the various UN reports on apartheid, the SecretaryGeneral sought to show that if there was a slavery-like element to apartheid (whatever that might mean) it lay in a collective, structural, induce­ment of forced labour on racial grounds. The Secretary-General declined to make the link between apartheid and slavery defined by the 1926 Con­ vention or to conventional servitudes found in the 1956 Supplementary Convention. While the Secretary-General’s Report appeared to right things by setting out apartheid in political terms as a slavery-like practice, this was undone shortly thereafter. In 1980, the Economic and Social Council decided to appoint Benjamin Whitaker, as Special Rapporteur to update Mohamed Awad’s 1966 Report on Slavery. Where apartheid was concerned, Whitaker noted in his 1982 Report that in general terms “unjust economic exploitation underlies many of the most serious violations of human rights”; he then singled out apartheid, saying that “if a dominant stratum forces others either to work on sub-human terms or to starve, it may be said to be employing a slavery-like practice”.32 So far, so good; however, Whitaker once more brought into the fold the notion of apartheid as slavery by noting first that “apartheid is in the opinion of many people the most oppressive manifestation of slavery that exists in the world today”. He then continued: “apartheid and colonialism, in many of their effects, are forms of collective or group slavery that fundamentally oppresses the human rights of several million people. A particular virulent evil of its immorality is that the victims are condemned, involuntarily, to their predicament from the day of their birth and without redress”.33 In its 1984 Report, the Working Group on Slavery added to the Whitaker’s approach, combining the notions of the slavery-like practice of apartheid and the designation of apartheid as collective slavery by recognising awkwardly “that apartheid is the gravest disregard of human dignity and a collective slavery-like practice”.34 This was followed a year later by a 32 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination and Protection of Minorities, Updating of the Report on Slavery Submitted to the Sub-Commission in 1966, Report of Mr. Benjamin Whitaker, Special Rapporteur, UN Doc E/CN.4/Sub.2/1982/20, 5 July 1982, p. 7. 33 Id., p. 11. 34 United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Question of Slavery and the Slave Trade in All their Practices and Manifestations, including the

servitude157 determination by the Working Group that apartheid is the “most evil practice analogous to slavery, which constitutes a crime against humanity”.35 Despite this, the now newly rebranded Working Group on Contem­ porary Forms of Slavery, in its 1988 Report sought to infer that it was somehow being consisted in its use of terminology by recommending that “apartheid, including the labour practices under apartheid, should continue to be viewed as a collective form of slavery”.36 Despite this on-going vacillation as to what nomenclature should be used to link slavery with apartheid, such consideration would soon become moot, as events on the ground quickly overtook those of the UN Working Group. With the freeing, after twenty-seven years of imprisonment, of Nelson Mandela, in February 1990 the road towards a new, apartheid-free, South Africa had began. For the Working Group on Contemporary Forms of Slavery, a new path also beckoned, having been laid out in a recommen­ dation to the Commission on Human Rights that “particular emphasis should be given to the situation of children and of women under apartheid”.37 This gave way to a recommendation in 1989 that “under this agenda item more attention should be given in future sessions to the situation of women and children”; that is: dropping the need to consider the issue as linked to apartheid.38 By 1993, the line item of the ‘slavery-like practices of apartheid and colonialism’ was removed from the agenda of the Working Group. While apartheid came to be unbridled from the notion of ‘slavery-like practice’ as being, for instance ‘akin to slavery’, or a ‘collective form of Slavery-like Practices of Apartheid and Colonialism, Report of the Working Group on Slavery on its tenth session, UN Doc. E/CN.4/Sub.2/1984/25, 21 August 1985, p. 13. 35 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination and Protection of Minorities, Report of the Working Group on Slavery on its eleventh session, UN Doc. E/CN.4/Sub.2/1985/25, 15 August 1984, p. 11. 36 United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Question of Slavery and the Slave Trade in All their Practices and Manifestations, including the Slavery-like Practices of Apartheid and Colonialism, Report of the Working Group on Contemporary Forms of Slavery on its thirteenth session, UN Doc. E/CN.4/Sub.2/1988/32, 22 August 1988, p. 24. 37 Id. 38 United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Question of Slavery and the Slave Trade in All their Practices and Manifestations, including the Slavery-like Practices of Apartheid and Colonialism, Report of the Working Group on Contemporary Forms of Slavery on its fourteenth session, UN Doc. E/CN.4/Sub.2/1989/39, 28 August 1989, p. 29.

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slavery’, etc.; the very term ‘slavery-like practice’ also gained an independent existence from its association to apartheid and colonialism. This decoupling of ‘slavery-like practice’ from apartheid and its attachment to other types of human exploitation first transpired back in the 1982 Report by Benjamin Whitaker in which he introduced new ‘slavery-like practices’ for consideration. Under the heading of ‘slavery-like practices involving women’. Whitaker examined involuntary marriage and abortion, trafficking in women, exploitation of prostitution, women under apartheid, genital mutilation, sale of women and killing for reasons of dowry. In 1989, the Working Group on Contemporary Forms of Slavery sensing that term ‘slavery-like practice’ and its association with apartheid was to become obsolete, appropriated the term as an agenda item. In so doing, the Work­ ing Group demonstrated the extent to which there was a failure to grasp that there existed a distinction between the political term ‘slavery-like practice’ and the legal term ‘practice similar to slavery’. Under its agenda item 3 of its Annual Report from 1989 until 1994, the Working Group maintained a heading entitled: “Review of Information Received on the Status and the Implementation of Conventions on Slavery and Slavery-like Practices”.39 This heading was maintained despite the fact that there is no legal instrument which covers the notion of ‘slavery-like practices’. This change in agenda was a monumental shift from the first substantive agenda set by the Working Group in 1977 which read: “Review of Developments in the Field of Slavery and the Slave Trade in all their Practices and Manifestations”. This gave way, as the Working Group on Contemporary Forms of Slavery sought to make the distinction between the legal – by providing the incorrect agenda item on ‘slavery and slaverylike practices’ meant to consider the 1926 and 1956 Conventions – and a new agenda item was more encompassing: “Review of Developments in other Fields of Contemporary Forms of Slavery”. This Review which would come to consider, over time: trafficking in persons, exploitation of prostitutes (in 1989); child pornography, children in armed conflict (1990); child soldiers (1991); removal of organs (1992); incest (1993); migrant workers, sex tourism (1994); illegal adoption (1996); and early marriages and detained juveniles (1997). Thus within the United Nations system, contemporary focus on slavery would have little to do with legal considerations of slavery or servitude, instead the Working Group moved rather far 39 See id., p. 1. Emphasis added.

servitude159 away from issues of exploitation by considering such social ills as incest and juvenile detention. This conflation between the terms and between the legal and the political persists. In 2000, David Weissbrodt of the SubCommission and the NGO Anti-Slavery International updated the Awad and Whitaker reports. The 2000 Working Paper also conflated, as the Working Group on Contemporary Forms of Slavery had before it, the term of law ‘practice similar to slavery’ with that of ‘slavery-like practice’. The Weissbrodt – Anti-Slavery International Working Paper stated that “ownership is the common theme existing in all of the conventions concerning the abolition of slavery and slavery-like practices”.40 ‘Servitudes’ Having established a legal regime governing slavery and servitudes during the first half of the Twentieth Century, much of the latter half of the Century was taken up by the obscuring of the legal through the policyorientated bodies of the United Nations human rights system. This confusion ensured that servitude failed to establish itself as a clear legal entity. By first characterising the servitudes of the 1956 Supplementary Conven­ tion as ‘institutions or practices similar to slavery’ and, then developing the term ‘slavery-like practice’ so as to challenge apartheid; the very concept of servitude did not establish a legal space from which to develop as a concept. This is best demonstrated through the jurisprudence of the European Court of Human Rights which has yet to give distinctive content to the term servitude as found in Article 4(1) of the European Human Rights Convention which simply reads: “No one shall be held in […] servitude”. With regard to the provision on slavery and forced or compulsory labour in the same article, the Court has pointed to the definition of the 1926 Slavery Convention and the 1930 Forced Labour Convention as the starting point of its determinations with regard to the interpretation of those

40 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on the Promotion and Protection of Human Right, Contemporary Forms of Slavery: Updated review of the implementation of and follow-up to the conventions on slavery, Working Paper prepared by David Weissbrodt and Anti-Slavery International, UN Doc. E/CN.4/Sub.2/2000/3, 26 May 2000, p. 7. See also paragraph 62 at p. 15 for the same type of conflation. Emphasis added.

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provisions.41 However, lacking the background outlined above, the Court has yet to recognise that the substance of the four institutions or prac­ tices outlined in the 1956 Supplementary Convention can be assimilated to – and thus recognised as – servitudes, in legal terms. Without this understanding of the negotiation process of the 1956 Supplementary Convention and the reasons – which no longer hold – why the diplomats opted for the term ‘institutions of practices similar to slavery’ instead of servitude; the European Court has found it difficult to come up with a manageable understanding of the term servitude. In the 2005 Siliadin case, the European Court of Human Rights provided its fullest consideration of servitude thus far. Referencing its 1982 Van Droogenbroeck case, the Court noted that with “regard to the concept of ‘servitude’, it ‘prohibits a particularly serious form of denial of freedom’”.42 41 Article 4 of the European Convention reads:  1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article the term “forced or compulsory labour” shall not include:     a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;     b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;     c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;     d) any work or service which forms part of normal civic obligations. With regard to slavery, the European Court simply “note[d] at the outset that, according to the 1927 [sic] Slavery Convention, ‘slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’”. See Council of Europe, European Court of Human Rights, Siliadin v France, 26 July 2005, para 122. With regard to forced labour the European Court notes that within the 1930 Forced Labour Convention: the term ‘forced or compulsory labour’ shall mean ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. This definition can provide a startingpoint for interpretation of Article 4 of the European Convention. See Council of Europe, European Court of Human Rights, Van der Mussele v. Belgium, 23 November 1983, para. 32. 42 The Court in Siliadin then quotes a rather curious passage delivered by the now defunct European Commission of Human Rights in its 1979 consideration of the Van Droogenbroeck case; that servitude includes “in addition to the obligation to provide certain services to another … the obligation on the ‘serf’ to live on the other’s property and the impossibility of changing his status”. Curious as the Van Droogenbroeck case was related to an unsubstantiated claim related prison labour and in no way was focused on serfdom.

servitude161 In Siliadin, the European Court then set out its understanding of servitude, stating: It follows in the light of the case-law on this issue that for Convention purposes ‘servitude’ means an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of ‘slavery’.43

The Court does not elaborate on its definition. It fails to indicate what might be the possible link to the legal definition of slavery. We are thus left with two elements, the providing of a service which is imposed by the use of coercion. This comes near to replicating the 1930 definition of forced labour which requires three elements: that it entails 1) “all work or service”; 2) which is exacted […] under the menace of any penalty”; and 3) for which the person “has not offered himself voluntarily”. Yet, we know from the approach of the European Court of Human Rights in the Siliadin case that it considers servitude to be a greater offence than a forced labour. Thus, the distinction will hinge on the difference between a service ‘imposed by the use of coercion’ that will be more severe than a service ‘exacted under the menace of any penalty for which the person has not offered him or herself voluntarily’. Without further elaboration, it is difficult to know in law the distinction between servitude and forced labour or the link between servitude and slavery as developed through the definition of servitude established by the European Court of Human Rights. As a result, it would be rather difficult for a State to defend itself against a charge of servitude, or for an individual to depend on the jurisprudence of the European Court in seeking to uphold his or her right not to be held in servitude. Better would be for the European Court of Human Rights to follow, as it has with regard to slavery 43 European Court of Human Rights, Siliadin v France, 26 July 2005, para 124. As an apparent afterthought – as Siliadin dealt with a girl who came to be exploited as a domestic worker, her father having consented to the live-in arrangements – the Court invoked the 1956 Supplementary Convention, noting that “each of the States Parties to the Convention must take all practicable and necessary legislative and other measures to bring about the complete abolition or abandonment of the following institutions and practices”: (d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour. Id., para. 125. Note that the substance of the consideration in Siliadin was reproduced in the Court’s 2010 Rantsev v Cyprus and Russia, 7 January 2010, at para. 276.

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and forced labour, the definitions already set out in previous international law as a starting point for its elaboration of the content of servitude as it might be applicable within the context of the Council of Europe and the European Convention of Human Rights. The same might be said for other international courts or treaty monitoring bodies. Being clear in our own minds that the term ‘slavery-like practice’ has no legal standing; and that the term ‘institution or practice similar to slavery’ came to replace the term ‘servitude’ for the now antiquated reason related to the time period in which to bring about its complete ‘abolition or abandonment’; we can now turn to consider the 1956 Supplementary Conven­ tion on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery and its four conventional servitudes. The Conventional Servitudes The contemporary value of the 1956 Supplementary Convention, like that of the 1926 Slavery Convention and the 1930 Forced Labour Convention, is not so much to be found in the obligations which flow from it; rather it is the definitions which remain in play as these definitions inform the application of subsequent treaties which include provisions prohibiting servitude, the slave trade, slavery, or forced labour, without providing a definition. Be this as it may, it is worth consider the limited obligations touching on those institutions and practices similar to slavery before going on to consider each of the conventional servitudes set out in Article 1 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. The 1956 Supplementary Convention establishes a number of legal obligations that remain in force to this day for States party to that instrument. While consideration of the obligations touching on the slave trade and slavery have been noted in Chapters 1 and 2; where the institutions or practices similar to slavery are concerned two obligations flow from the 1956 Supplementary Convention. The first has been noted previously as it applies also in cases of slavery. That is, the provisions of Article 5 of the Supplementary Convention, relating to branding or mutilating, which requires that: In a country where the abolition or abandonment of slavery, or of the institutions or practices mentioned in article 1 of this Convention, is not yet complete, the act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence

servitude163 under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

As noted in earlier, such cases have transpired and do in fact make up part of the landscape of human exploitation. Beyond the cases noted in Venezuela and Sierra Leone mentioned in Chapter Three, it should be emphasized that this provision is not only applicable where such mutilations takes place to indicate the status of ‘a person of servile status’ or a slave, but is also applicable when physical scars are left as a result of punishment or ‘for any other reason’. While the 1956 Supplementary Convention requires States to criminalise such conduct and to punish those liable for such an offence, having considered the legislation of the 123 State Parties (as of January 2012), no State has included such provisions specific to mutilation or branding of a slave or person of servile status in their domestic legal order. The second obligation which speaks specifically to the conventional servitudes noted in the 1956 Supplementary Convention is found at Article 6(2), which requires the criminalisation of activities surrounding the servile statuses set out in Article 1 of the Supplementary Convention. As the provisions of Article 6(2) make plain, there is a requirement to criminalise the placing of a person in servitude, but also that inchoate and accessory liability be sanctioned: […] the present article shall also apply to the act of inducing another person to place himself or a person dependent upon him into the servile status resulting from any of the institutions or practices mentioned in article 1, to any attempt to perform such acts, to being accessory thereto, and to being a party to a conspiracy to accomplish any such acts.

While 84 States party to the 1956 Supplementary Convention have criminalised servitude; once more having surveyed the provisions of States Parties’ domestic legislation touching on servitude makes plain that no State has specifically criminalised those ancillary offenses as required by Article 6(2) in their laws touching on institutions or practices similar to slavery. That said, this is not to say that accessory or conspiracy to place someone in a servile status are not criminalised and would not apply in such situations, as States will have stand-alone or general provisions found in their criminal codes or other legislation. Instead, what is being noted here is, as opposed to mutilation or branding where no provisions appear to have been enacted, with regard to the provisions of Article 6(2), a number of States Parties to the 1956 Supplementary Convention do have general provisions related to conspiracy to, or accessory to, crimes, which

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would then be applicable in cases of servitude. That said, with regard to domestic legislation dealing with trafficking to emerge since the coming into force of the United Nations Palermo Protocol on Christmas Day 2003, the following States Party have criminalised conspiracy to commit trafficking: Burkina Faso, Sierra Leone, El Salvador Haiti, Fiji, Luxembourg, Ireland, Ukraine, and the United States of America.44 One final obligation flowing from the 1956 Supplementary Convention, though it is not specific to the institutions or practices similar to slavery, is the general obligation on State Parties, found at Article 8, to “co-operate with each other and with the United Nations to give effect to the foregoing provisions” and to provide the United Nations Secretary-General with “copies of any laws, regulations and administrative measures enacted or put into effect to implement the provisions of this Convention”. Having considered the limited obligations which flow from the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, consideration can now turn to the provisions of Article 1 of the Supplementary Convention which set out the conventional servitudes – those institutions or practices similar to slavery: Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926: (a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status; (c) Any institution or practice whereby:       (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or         (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or      (iii) A woman on the death of her husband is liable to be inherited by another person; 44 See Slavery in Domestic Legislations database: http://www.qub.ac.uk/slavery/.

servitude165 (d) Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

Before considering each of the individual institutions or practices of debt bondage, serfdom, servile marriage and child trafficking; emphasis should be directed towards the opening paragraph of Article 1 of the 1956 Supplementary Convention as it points to the dual character of servitude considered earlier in this Chapter. As noted, these conventional servitudes may or may not already be covered by the definition of slavery set out in the 1926 Slavery Convention. Thus while the institutions or practices of debt bondage, serfdom, servile marriage and child trafficking which met the definition set out above will be deemed a conventional servitude; if they also meet the definition of slavery as set out in the 1926 Slavery Convention they would also be deemed, in law, slavery. Such a recognition of the possible dual character of servitude was required, in part, because, in 1951, three of the four members of the Ad Hoc Committee on Slavery had “expressed the opinion that” debt bondage, forced marriage and child trafficking “fall within the definition of slavery contained in Article 1 of the International Slavery Convention of 1926”.45 Despite this, the Ad Hoc Committee on Slavery – whose reports were the starting point for the negotiations of the 1956 Supplementary Convention – noted that “it would be more reasonable, both on legal and practical grounds to consider these forms of servitude as involving a ‘status analogous to slavery’”.46 When, in 1953, the United Nations Secretary-General considered the Report of the Ad Hoc Committee on Slavery, he sought to answer the question as to whether all the servitudes identified by the Committee (debt bondage, serfdom, forced marriage and child trafficking) fell within the definition of slavery as established by the 1926 Convention? The Secretary-General’s basis for this determination was that under the 1926 Convention, the obligations “extended to all institutions or practices, whether or not designated as ‘slavery’, provided that, as stated in Article 1 of the Convention, ‘any or all of the powers attaching to the right of ownership are exercised’ over a person in these institutions or practices”. He went on to say that 45 See United Nations, Economic and Social Council, Resolution 238(IX), 20 July 1949. The Ad Hoc Committee on Slavery was a panel of experts established by the Economic and Social Council to, inter alia, “survey the field of slavery and other institutions or customs resembling slavery”. 46 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc. E/1988, E/AC.33/13, 4 May 1951, p. 10.

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with regard to the servitudes which would make their way into the 1956 Supplementary Convention: “that in the main these institutions or practices are covered” by the 1926 Slavery Convention. Though, he noted, a possible exception existed where serfdom was concerned.47 A determination as to whether a given case of servitude be deemed exclusively servitude or might also manifest the added characterisation of slavery will, in law, always depend on the facts of a given situation. That said, the pronouncements of the Ad Hoc Committee on Slavery and the United Nations Secretary-General towards the end of thirty-years of consideration of the various types of servitudes would appear to point to a limited area of application of the law related to servitude. Despite this, one should hesitate before considering that a limited area of application does in fact exist where the various servitudes are concerned. As originally conceived the servitudes defined in the 1956 Supplementary Convention were present and indentified during the colonial era of the first half of the Twentieth Century. It may be that in a contemporary setting, the area occupied by the conventional servitudes has grown in prominence. Again, it will always depend on the given situation as to whether the definitions – as considered below – are applicable in substance to the facts at hand. Debt Bondage Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.

While at first glance the definition of debt bondage may seem opaque, in simpler terms, Michael Bush reminds us that debt bondage – as it is sometimes termed: peonage – is the “practice of pawning persons, as opposed to property, for the discharge of a debt”; or even more succinctly: “a pledge of service for the repayment of a debt”.48 While the definition of ‘debt bondage’ appears in 1956, the contours of its content and the understanding of the phenomenon would not change significantly from when the 47 United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 27. 48 M.L. Bush, Servitude in Modern Times, 2000, p. 39.

servitude167 issue was first considered in 1924 by the League of Nations Temporary Slavery Commission. As such, and although it would be considered by other expert bodies during the League of Nations and the United Nations eras, a stable understanding over a period of intense scrutiny points to the concept of debt bondage having a fixed understanding which was codified by virtue of its inclusion as Article 1(a) the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. In its 1925 Report to the Council of the League of Nations, the Tempo­ rary Slavery Commission, considered the issue of debt bondage from two vantage points, from situations in which a person pawns another and when individuals pawn themselves. Where third-parties were concerned, the Commission suggested that legislation should be enacted “rendering all pledging of other persons illegal and empowering the courts to annul all contracts of this nature”. Where the pledging of oneself transpired for a definite period, the Commission – very much reflecting the colonial era in which it deliberated – considered this could be “provisionally tolerated, with the reservation that it does not imply the possibility that the creditor should alienate the liberty of the debtor by allowing this practice to degenerate into slavery”.49 Thus, the issue for the Commission was not so much debt bondage, but the possibility of such debt leading to slavery, as the obligations emanating from debt bondage on plantations, haciendas and mines “imposed by person of a more privileged position upon others less favoured”, would often result “in the formation of a class of permanently enslaved debtors”.50 Here the Commission recommended specific provisions be included in legislation meant to curb the excesses by only recognising contracts wherein the “debtor pledges his services in payment of his original debt, and provides that this original debt shall be extinguished after a fixed period of time proportioned to the original amount”.51 From this final suggestion of the Temporary Slavery Commission, the contours of what would become the definition of debt bondage in the 1956 Supplementary Convention starts to emerge: that payment for labour be 49 League of Nations, Temporary Slavery Commission, Report of the Temporary Slavery Commission adopted in the Course of its Second Session, July 13th-25th July, 1925, A.19.1925. VI, 25 July 1925, p. 9. 50 Id. Note that Suzanne Miers gives as examples of where peonage was taking place as Southern United States, Latin America and the Philippines. See Suzanne Miers, Slavery in the Twentieth Century, 2003, p. 112.  51 Report of the Temporary Slavery Commission, n. 49, id.

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applied in part to the principal of the debt and that the debt be limited in time. In 1932, the League of Nations established the Committee of Experts on Slavery, which in its reports did not challenge the concept of debt bondage per se, but its “malpractices”.52 It first noted there appeared to be widespread abuse, where a creditor is “free not to stipulate in the contract the length of time during which the debtor shall be bound to render service”; and that as a result, this had “led certain Governments to declare specifically that no one may discharge his debt by placing himself in the service of his creditor”.53 As to the second malpractice, the Committee harked back to its predecessor, the Temporary Slavery Commission by referring to the need to ensure that “where the contract between the creditor and the debtor acquires full effect irrespective of the amount of debt or of the duration of the services to be rendered in discharge thereof”. The Commi­ ttee noted that abuse of this process could lead to vulnerable situations where the debtor might be forced to agree “to serve for a periods out of all proportions to the value of his debt” so as to avoid legal action by the creditor. Likewise, abuse might take place where the inducement takes place to have the debtor take on more debt”.54 The response of the Committee of Experts on Slavery to these malpractices was a number of suggestions which fell squarely within the domain of contract law. First and foremost it suggested that “obligation to work for a creditor in payment of the debt” should be governed by contract, wherein the amount of debt is specified, as is the nature of the work and “the value at which it is assessed for the redemption of the debt”.55 Further, that States should encourage debtors to take cases to “competent authorities” and adopt measures to protect a debtor entering into such an agreement in the following manner: the person who has undertaken to render service in payment of the debt should be able, up to the date of the expiry of the period laid down for his work, to contest the amount of debt unless it is certain that the debtor had formally recognised the existence of the debt at the time of concluding the contract of service.

52 League of Nations, Slavery: Report of the Committee of Experts on Slavery provided by the Assembly Resolution of September 25th, 1931, C. 618.1932. VI, 1 September 1932, p. 18; as found in, League of Nations Publications, VI. Slavery 1932 and 1935. 53 Id. 54 Id. 55 Id.

servitude169 The Committee further recommended that the cost of labour should not be below what “is sanctioned by usage in the district, according to the nature of the work and the age and capacity of the person who has entered into the obligation to render service”. That “whatever the amount of debt, the labour contribution should not exceed a period to be determined by law, whether the labour is performed continuously or intermittently”.56 This is where things were left with regard to the substance of debtbondage during the League of Nations era. This issue was later picked up by the United Nations in 1951 by way of the Ad Hoc Committee on Slavery which determined that debt bondage “should properly be defined”.57 For its part, the Committee considered that such pledging did not, in and of itself, “constitute a form of servitude” as it believed that “there must also be present a general denial or disregard of the principle that an individual should be treated as a person rather than as a thing, and considered as an end in himself and not only a means to the purpose of someone else”. As such, the Ad Hoc Committee appeared to see debt bondage as a form of slavery rather than a lesser servitude. Despite this, the Ad Hoc Committee on Slavery considered that “one or more of the following conditions was necessary to bring debt bondage within the Committee’s concept of servitude”: (a) if the services rendered by the bondsman or the pawn do not count towards the payment of the debt; (b) if the nature and length of the services to be performed by the bondsman or the pawn are not defined; or (c) if the bondsman or the pawn submits to conditions that do not allow the person pledged to exercise the rights enjoyed by ordinary individuals within the framework of local social customs.58

In this manner, the Ad Hoc Committee went beyond the prescriptions made during the League of Nations era – which only touched on the need to include part of the principal in the repayment of the debt and to fix the nature and length of the services to be rendered – by introducing the need to ensure that labour standards did not diverge from those established

56 Id. 57 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1998, E/AC.33/13, 4 May 1951, p. 8; note also: United Nations, Economic and Social Council, Ad Hoc Committee on Slavery (Second Session), Minority Report of Mr. C.W.W. Greenidge, Member of the Ad Hoc Committee on Slavery, UN Doc, E/AC.33/R.14, 8 June 1951. 58 Id.; see also Minority Report, id.

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locally. With this in mind, the United Nations Ad Hoc Committee on Slavery proposed a definition of debt bondage: [T]he status or condition arising from a pledge by a debtor of his personal services, or those of a third person under his control, where those services do not count towards the payment of the debt, or are undefined as regards the nature and length of the services to be performed, or forced the person pledged to submit to conditions that do not allow such person to exercise the rights normally enjoyed by ordinary individuals within the framework of local social custom.59

The work of the Ad Hoc Committee on Slavery was to feed into the process of what would ultimately become the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. Though it might be emphasised once more that in 1953, the United Nations Secretary-General, in examining the work of the Committee with regard to debt bondage considered that it was already “covered by the undertakings contained in [… the 1926] Slavery Convention, interpreted in light of the definition of slavery contained in Article 1 of the same Convention”.60 For the sake of clarity, it should be emphasised here that the United Nations Secretary-General, speaking in 1953, was not in a position to consider debt-bondage as defined by the 1956 Supplementary Convention, but was in fact reading the definition put forward by the Ad Hoc Committee on Slavery. In the lead up to the adoption of the 1956 Convention, the United Kingdom had put forward a Draft Convention which mirrored in substance what was finally adopted by States as the definition of debt bondage in the Supplementary Convention.61 The draft provisions on debt bondage which were put forward for negotiation at the 1956 Conference of 59 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1998, E/AC.33/13, 4 May 1951, p. 19. 60 United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 27. 61 The proposal regarding debt bondage put forward by the United Kingdom in its 1954 Draft Supplementary Convention on Slavery and Servitude reads: debt bondage, i.e., the status or condition arising from a pledge by a debtor of his personal services or those of a third person under his control as a security for a debt where the value of those services rendered is not applied towards the liquidation of the debt and the person pledged has to serve the creditor until the debt is repaid. See Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 2.

servitude171 Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery elicited no substantive discussions, so that debt bondage as defined by the 1956 Supplementary Convention, it bears repeating, reads: Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.62

In considering debt bondage today, it is worth considering that areas of deprivation remain fertile grounds for such exploitation as, in the absence of property, one’s labour remains the only tangible collateral which can be offered for a loan. Consider a case in Bolivia, where, in 2009, the InterAmerican Commission on Human Rights found the South American State in breach of, inter alia, Article 6(1) of the American Convention of Human Rights, which reads in part: “No one shall be subject to slavery or to involuntary servitude”, and in violation of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, with regard to so-called ‘captive communities’ held in debt bondage on haciendas.63 With reference to the approximate 600 families of Guaraní indigenous people living on these estates, in the Chaco region of Bolivia, the Commission noted that: What the Guaraní are given in exchange for the work they perform on the estates is in kind and/or minimal sums of money, which range from 10 to 15 bolivianos for men and less than half that for women. This remuneration, in addition to repudiating applicable labor laws and being perceived as a consequence of the long work days, in no way covers the workers’ basic subsistence needs. The estate owner is the provider of food, clothing, medicines, coca leaf, and even alcohol at prices that are excessively higher than the market price. As a result of the insufficient remuneration, a situation is created of permanent and successive indebtedness to the estate owners. […]

62 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23. 63 Organization of American States, Inter-American Commission on Human Rights, Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco, 24 December 2009, OEA/Ser.L/V/II, Doc. 58, 24 December 2009, pp. 47–48. For a further case in Latin America, consider United Nations, General Assembly, Human Rights Council, Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, Gulnara Shahinian, Addendum; Mission to Brazil, UN Doc. A/HRC/15/20/Add.4, 30 August 2010.

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chapter four  The situation of indebtedness is generated by the registry the bosses have of their workers in a notebook in which they note their name, the activities they perform, the advances given in kind or in cash in payment for the work done. This notebook is the only document for making the ‘arrangements’ that are made, and in almost all cases the workers end up owing the boss.64

In a 2011 field study by the NGO, Free the Slaves, it was reported that debt bondage in the mining sector in the east of the Democratic Republic of Congo “resembles debt bondage in other contexts”: New workers are required to borrow money to purchase food, supplies, and the tools and equipment needed to keep them employed. The return on their work proves to be insufficient and borrowed money is exhausted as the worker struggles to pay for food and drink, lodging, medical expenses and in some cases, school fees. Interest rates are usuriously high and engineered to make it impossible to pay off the debt. This is a simple fraud to perpetrate when illiteracy prevents many miners from understanding how the debt and interest should be paid down. The borrower is unable to save, unable to pay down the debt, and falls further into debt over time. Among those interviewed for this report, debts ranged from under US$100 to over US$1000, and more than one-third (37%) were over US$500. Three out of five indebted miners did not believe reducing and paying off their debt was possible.65

In its 1983 judgement in Bandhua Mukti Morcha v. Union of India, the Supreme Court of India determined that its legislation regarding bonded labour recognised as a “self-evident proposition” that “bonded labour is a form of forced labour”.66 In its 2007 General Survey concerning the 1930 64 Captive Communities, id., p. 29. Mention here might be made of two other items to have eminated from the Inter-American system: The Organization of American States, Inter-American Court of of Human Rights, Case of the Saramaka People v. Suriname, Judgment of November 28, 2007, wherein the Court considered issue related to a Maroon community of former slaves and the self-explanitory: Organization of American States, Inter-American Commission on Human Rights, The Situation of People of African Descent in the Americas, OEA/Ser.L/V/II. Doc. 62, 5 December 2011. 65 Free the Slaves, The Congo Report: Slavery in Conflict Mines, 2011, pp. 14–15. 66 Supreme Court of India, Bandhua Mukti Morcha v. Union of India, 1984 SCR (2) 67, 16 December 1983, p. 78. The Court went on to consider, at page 79, bonded labour within the context of Indian legislation, the Bonded Labour System (Abolition) Act 1976, in the following terms, as it relates to forced labour: The thrust of the Act is against the continuance of any form of forced labour. It is of course true that, strictly speaking, a bonded labourer means a labourer who incurs or has or is presumed to have incurred a bonded debt and a bonded debt means an advance obtained or presumed to have been obtained by a bonded labourer under or in pursuance of the bonded labour system and it would therefore appear that before a labourer can be regarded as a bonded labourer, he must not only be forced to provide labour to the employer but he must have also received an advance or other economic consideration from the employer unless he is made to provide forced

servitude173 Forced Labour Convention and the 1957 Abolition of Forced Labour Con­ vention, the ILO Committee of Experts on the Application of Conventions and Recommendations turned its considerations to debt bondage, stating that “unlawful practices of debt bondage, under which labourers and their families are forced to work for an employer in order to pay off their actually incurred or inherited debts, are still widespread in some countries and affect a significant number of people”. The Committee of Experts then set out a global synopsis of contemporary debt bondage: The victims of debt bondage are the poorest people, often illiterate and relatively easy to deceive and be kept in ignorance of their rights; if they try to leave their employment, they are usually caught and returned by force. According to the reports, bonded labour is widespread in agriculture, but has been also detected in mines, brick kilns, leather, fish processing and carpet factories. In some regions, members of indigenous and tribal peoples are the most affected.

The Committee then followed this consideration by the measures which were being used in combating debt bondage: Since debt is the root cause of bonded labour, legal action is required to declare such bondage unlawful and to provide for penal sanctions against those employers who hold their workers in bondage. Such legal action should be accompanied by supplementary measures of economic assistance and rehabilitation of bonded labourers, so as to ensure that they do not fall back into a bonded labour situation. However, the identification of bonded labourers sometimes presents certain difficulties in practice. The Committee has noted, in relation to the application of the Convention, that the countries which are experiencing the most serious problems of bonded labour have adopted specific legislation on the subject and/or national action plans, or amended the existing provisions, with a view to prohibiting this phenomenon, rehabilitate the victims and punish perpetrators.67 However,

labour in pursuance of any custom or social obligation or by reason of his birth in any particular caste or community. 67 Here it might be noted that the Committee of Experts points to those States with the most “serious problems of bonded labour” as India, Nepal, Pakistan, and Peru. See International Labour Conference, 96th Session, Item III, Report of the Committee of Experts on the Application of Conventions and Recommendations, Eradication of Forced Labour, General Survey concerning Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), Report III (Part 1B), 2007, fn. 150, pp. 37–38. Consider also: Ravi Srivastava, Bonded Labour in India: Its Incidence and Patterns, 2005, ILO Work in Freedom Working Papers, ILO Doc. Declaration/WP/43/2005; International Labour Organisation, Social Finance Unit, South Asia Debt Bondage Project: Baseline Study for Nepal, ILO Doc. RAS/99/MO1/NET, 2001; Bhavna Sharma, Contemporary forms of Slavery in Peru, (Anti-Slavery International, 2006; Aly Ercelawn and Muhammad

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chapter four the application of this legislation in practice is sometimes hampered by some difficulties, often due to the absence of adequate labour inspection machinery or the lack of resources of the labour inspectorate.68

In the international pronouncements mentioned above, there has been no true engagement with the parameters of what constitutes debt bondages in international law. With regard to the Guaraní captive communities, the Inter-American Commission on Human Rights cited the Human Rights Ombudsman of Bolivia as defining “Servitude or bondage […] as free personal service and compulsory labor under coercion that originate in debts acquired using deceitful procedures, fraud, and other deceptive practices. It is characterized by the establishment of labor relations of forced labor and non-transparent systems of indebtedness, which are part of the relationship of servitude”.69 As noted earlier, for the UN Secretary-General, his sense – though this was before the 1956 definition of debt bondage had been agreed to – was that debt bondage fell under the definition of slavery as set out in the 1926 Slavery Convention. Yet such a reading does not appear to hold in considering the definition as set out in the 1956 Supplementary Convention. While a case of debt bondage may, as the Supreme Court of India indicates, amount to forced labour, it does not, on an ordinary reading of the provisions of the Supplementary Convention, speak to the exercising of Nauman, Bonded Labour in Pakistan, 2001, ILO Work in Freedom Working Papers, ILO Doc. Declaration/WP/1/2001; and 68 International Labour Conference, 96th Session, Item III, Report of the Committee of Experts on the Application of Conventions and Recommendations, Eradication of Forced Labour, General Survey concerning Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), Report III (Part 1B), 2007, pp. 37–38. 69 The Human Rights Ombudsman of Bolivia considers debt bondage to be analogous to ‘semi-slavery’: Semi-slavery is the obligation to work for a person until paying off the accumulated debt, which in many cases is inherited by the children. Slavery is represented by servitude, labor exploitation, and coercive labor. Its principal characteristic, we understand, is the loss of freedom and the transmission of the debt from generation to generation.  The concept of bondage is analogous to that of semi-slavery, encompassing the idea of subjugation to the will, of the employer, which accords the worker the status of a thing; it does not always presuppose the physical deprivation of liberty, and even less of movement.  The system of servitude and debt bondage is characterized by the overexploitation of the family labor power, indebtedness (through the ‘advance’ or provision of foodstuffs, clothes, or other goods) and in-kind remuneration for the time and work performed that does not cover or remunerate the effort made. See Captive Communities, n. 63, pp. 26–27, fn. 120.

servitude175 any of the powers attaching to the right of ownership. Instead, there appears to be a distinct gap for a determination of a case of debt bondage as a servitude and a determination of a case which would reach the threshold of slavery. While a case of debt bondage will amount to exploitation and may develop into slavery – as in the case of the captive communities in Bolivia70 – such a determination will require an assessment of the facts of the case at hand. In making such a determination reference will have to be had to the domestic legal order with consideration of, inter alia, the law of contract and labour legislation. In this context referral back to a 1951 recommendation of the Ad Hoc Committee on Slavery, that a number of principles be “incorporated in any basic legislation intended to abolish debt bondage”, might act as a useful reference point. That: (a) all agreements for labour in consideration of a debt should be held to be legal only if reduced to writing; (b) a procedure should be evolved whereby the correctness of the debt and the value of the services to be rendered in payment thereof should be established before a competent official and incorporated in the agreement; (c) the proportion of the value of the service to be paid towards the elimination of the debt should also be prescribed; (d) the debtor should in no circumstance be bound to work for the creditor under the agreement for more than a prescribed maximum number of days; (e) the value of the work undertaken in the agreement should not be less than what is sanctioned by usage in the district;

70 In the case of the Guaraní Indigenous People, the Inter-American Commission noted that debt bondage on the agricultural estates: generates obligations of future work, a situation that may become lifelong and that may even be passed down from one generation to the next. For that reason, many Guaraní recount that they were born on that estate where they now have children and grandchildren, constituting a small community. There have even been cases in which the owners and bosses of estates transfer personnel with debts, deciding on persons’ liberty. Thus, the buyer pays the debt to the previous owner and the workers continue to owe it to the new one. A member of the Guaraní Indigenous community went on to say: For us it is modern slavery, because there is a historic debt … the children cannot go because they have to pay [the] account left by the mother or father…. The families that are on [the estates] have no right to leave freely to seek work elsewhere. And if a Guaraní insists on going to work on another estate, this boss generally sells him to a neighbor. See Captive Communities, n. 63, p. 30.

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chapter four (f) the duty of rendering services in extinguishment of the debt should not be transferable to a third person; and (g) the agreement should not bind the heirs of the debtor.71

These principles could serve as a guide in seeking to determine whether a specific case amounts to a breach of the law as an exploitive practice or as debt bondage. Serfdom Article 1(b) of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery reads: Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;

The essence of serfdom is its predial nature: the serf is ‘of the land’; that is the serf is tied to the land which he or she works or is tied to the owner of that land.72 Serfdom was first broached internationally under the heading ‘Domestic or Predial Slavery (Serfdom)’ in the 1925 Report of the League of Nations Temporary Slavery Commission, wherein it noted that it: is difficult to say precisely what constitutes the institution known as domestic or predial slavery or serfdom. In its effects upon the life of the slave or serf, the various forms differ enormously: they may imply the most abject servitude or, on the other hand, an obligation of service comparable to that due a villain to his lord under the feudal system formerly common in Europe; they may give to the master or owner powers of life and death over the slave, or give him only certain customary privileges not specially onerous upon the latter; they may give the slaves even a particular favourable position in the master’s household.73

The Commission, having considered that the institution of serfdom was insufficiently understood, pointed out that further study might reveal it to be “sometimes rather a type of social organisation than a form of slavery as

71 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1998, E/AC.33/13, 4 May 1951, p. 19. 72 For a consideration of the serfdom in an historical context see generally M.L. Bush, Serfdom and Slavery: Studies in Legal Bondage, 1996 and M.L. Bush, Servitude in Modern Times, 2000. 73 Temporary Slavery Commission, n. 49, p. 10.

servitude177 the latter term is currently used”. The hesitation of the Temporary Slavery Commission to make concrete suggestions as to the abolition of serfdom was coloured by its fear – set, as it was, within the colonial context of a 1920s League of Nations – that a “sudden abolition would almost certainly result in social and economic disturbances which would be more prejudicial to the development and well-being of the peoples than the provisional continuation of the present state of affairs”.74 As such, the only suggestion the Commission was willing to endorse was that serfdom “should be declared to have no legal status, so that any serf wishing to free himself can do so without any formality or expense and with the support, when necessary, of the authorities”.75 The Temporary Slavery Commission, in putting forward its view that any legal text dealing with the issues considered in its Report was desirable, though that such an instrument should embody, inter alia, the “nonrecognition of the legal status of predial slavery or serfdom”.76 However, this was not to be; as attempts to include lesser servitudes than slavery such as serfdom, into the 1926 Slavery Convention were not successful – with the understanding that instances of serfdom would be deemed slavery if they met the threshold set by the definition of slavery incorporated within the 1926 Convention. Whereas the 1924 Temporary Slavery Commission considered serfdom under the banner of ‘Domestic or Predial Slavery (Serfdom)’, its successor the 1932 Committee of Experts on Slavery made the distinction between

74 Note that this gradualist approach, which went unchallenged during the League era, did not find the same sympathetic ear during the negotiations of the 1956 Supplementary Convention, wherein the Representative of the Philippines challenged the argument of colonial powers, saying that: as those who know the relationship of ruler and ruled from the other side were aware, the argument that reforms should be introduced slowly and gradually had sometimes been used in the past to retard progress, perhaps even against the will of the administrating authorities concerned. Slowness to act in destroying backward tribal practices had in fact prolonged those practices and maintained the rule of ignorance and superstition. Insistence on the need for progressive action must not operate against the interests of the backward peoples themselves. An administering authority might conceivably base its refusal to put an end to such institutions as serfdom on the grounds that it must act progressively. See United Nations, Economic and Social Council, United Nations Conference of Pleni­ potentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc E/CONF.24/SR.4, 11 November 1958, pp. 9–10. 75 Temporary Slavery Commission, n. 49, p. 10. 76 Id., p. 2.

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slavery, as defined by the 1926 Convention, and lesser servitudes, thus considering serfdom under the heading ‘Domestic or Predial Servitude (Serfdom)’. Yet, in so doing, the Committee of Experts on Slavery and its successor, the Advisory Committee of Experts on Slavery, would see a schism develop amongst its membership over serfdom. The camps which manifest themselves centred around two distinct positions, the first being that serfdom was not slavery, instead that the serf “only remained with his master from force of habit or gratitude” and did “so of his own free will”.77 The second camp took the position that the master in fact exercised powers of ownership.78 The inability to reach agreement led, in 1936, to the frank admission – though rather incredible, coming from an expert committee – that it “is possible to have a fairly clear impression that ‘serfdom’ is quite different from ‘slavery’, without having any idea where the difference lies”. The Advisory Committee of Experts on Slavery continued: Broadly speaking, we may say that a ‘slave’ is a person who is either the victim – or else is the descendant of a victim – of an act of personal violence, resulting in capture and subsequent detention and use as an article of property; and that the services rendered by a ‘serf’ are connected sometimes with the relationship between one tribe and another, sometimes with the fact that his lot is bound with that of agricultural land or grazing grounds, occasionally with employment in or around the household of a ‘master’, and in some cases quite possibly, are a curious medley of all three. It is important, however, to keep the fundamental distinction clearly in mind, and to realise that the status of ‘serfdom’ is a condition ‘analogous to slavery’ rather than a condition of actual slavery, and that the question whether it amounts to ‘slavery’ within the definition of the Slavery Convention must depend upon the facts connected with each of the various systems of ‘serfdom’.79

This final point, that serfdom is a condition analogous to slavery rather than actual slavery, unless the instance of serfdom meets the threshold of slavery is ultimately borne out by the approach as set out in the opening paragraph of Article 1 of the 1956 Supplementary Convention. That said, the actual need to establish a convention dealing with servitudes such as serfdom was an open question during the early years of

77 League of Nations, Slavery, Report of the Committee of Experts on Slavery provided for by the Assembly Resolution of September 25th, 1931, C.618.1932.VI, 1 September 1932, pp. 19 and 20. 78 Id., p. 20. 79 League of Nations, Slavery, Report of the Advisory Committee of Experts, Third (Extraordinary) Session of the Committee, C.189(I).M.145.1936, VI, 15 May 1936, p. 27.

servitude179 the United Nations organisation. In 1951, the Ad Hoc Committee on Slavery spelled out its understanding of serfdom, saying that “there still exists in some countries a condition, sometimes legally recognized, whereby”: An individual is attached to agricultural or pastoral land and cannot change his status or freely dispose of the produce of his labour. The attachment might be effected either by law (including customary law), custom, or agreement. In some cases the individual may be required to perform duties for the landowner without compensation.

For the Committee “such a condition constitutes a form of servitude that should be abolished”.80 With this in mind, the Ad Hoc Committee went on to proffer a definition of serfdom: the legal status of serfdom, and the practice whereby an individual is by law (including customary law), custom, or agreement, attached to agricultural or pastoral land and cannot change his status or freely dispose of the produce of his labour, whether or not he may be required to perform, without compensation, duties for the landowner.81

In his 1953 Report, the United Nations Secretary-General echoed the findings of the Ad Hoc Committee on Slavery, that where debt bondage, forced marriage and child trafficking were concerned, “in the main these institutions or practices are covered” by the definition of slavery found in the 1926 Slavery Convention. However, the UN Secretary-General felt that serfdom was a “possible exception” to this rule, though he did not elaborate as to why serfdom might be different.82 Regardless of the general position of the Secretary-General, States decided to forge ahead with the establishment of an instrument meant to supplement the 1926 Slavery Convention by regulating various servitudes. Where serfdom is concerned, a 1954 draft definition when considered was thought to be too narrow in focus by the International Labour Organisation. That draft definition of serfdom reads: serfdom, i.e., the servile hereditary tenure of land whereby the tenant is by law, custom and agreement bound to live and labour on land belonging to

80 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1998, E/AC.33/13, 4 May 1951, p. 11. 81 Id., p. 20. 82 United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 27.

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chapter four another person and render some determinate service to his landlord whether for reward or not and is not free to change his status.83

For its part, the International Labour Organisation sought to have serfdom apply beyond situations of hereditary serfdom; while the proposed definition would seem to meet an evil which still existed, though usually formally contrary to the law, it was for consideration whether the limitation to servile hereditary forms of land tenure was not unduly restrictive. Abuses might occur even when the land had come into occupancy otherwise than by inheritance, the occupant being expected to perform customary services, normally unpaid and not directly associated with obligations dealing with working of the proprietor’s land.

In quick order, the proposal was accepted and the term ‘hereditary’ deleted from the definition.84 Further deliberations took place with the draft definition, before it was considered at the 1956 Conference of Plenipotentia­ ries, reading: Serfdom, i.e., the tenure of land whereby the tenant to by law, custom or agreement bound to live and labour on land belonging to another person and render some determinate service to his landlord whether for reward or not and is not free to change his status.85

A number of changes to that definition transpired during the diplomatic conference, wherein the Representative of the United Kingdom suggested that the “phrase ‘to such other person’ should be replaced by ‘to his landlord’. Such a change, it was argued: would rectify the impression […] that there was some difference between the person on whose land the tenant was ‘by law, custom or agreement bound to live and labour’ and the landlord. The term ‘landlord’ was not a happy one to use in an international convention of the type before the Conference.86

83 United Nations, Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 3. 84 See United Nations, Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 23; see also United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Third Meeting, 17 January 1956, UN Doc. E/AC.43/SR.3, 9 February 1956, p. 9. 85 Id., p. 3. 86 United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave

servitude181 For his part the Representative of Pakistan, proposed the addition of the words “or is not free to dispose of the produce of his labour” to the definition of serfdom.87 The Pakistani Representative stated that: The condition in which a tenant was bound to labour on the land and to give the produce of his labour to a landlord or other person without any choice in the matter did appropriately fall within the meaning of the term serfdom. According to the present, somewhat loose, definition of serfdom, the condition in which A entered into an agreement with B to live and labour on the latter’s land and to render him service for wages was serfdom provided only that A was not free to change his status. Serfdom started where in the case of tenant and a landlord the former was not free to change his status. If that conception was enlarged, a condition where a tenant was bound to work on the landlord’s land having no freedom to dispose of a crop which had been cultivated by him was akin to the condition of serfdom contemplated in the convention.”88

In response to this, the French Representative stated that: serfdom was the state of an individual who was bound to the land and who could not change his status. Apart from that, the serf could dispose of his person and of the produce of his labour, which was not so in the case of the slave.  The representative of Pakistan had spoken of the relationship between tenant and farmers and landlords. In some countries there was a distinction between tenant farmers and métayers; both categories enjoyed the produce of their labour, but, while the former merely had to pay rent to the landowner, the latter had to give him part of the crops. It might be that both were exploited by the landlord, but such exploitation could not be regarded as a form of slavery, since – apart from contractual obligations of limited duration – both were free to change their status. Wage-earners, like métayers and individuals in other categories were sometimes described as slaves; that was, however, merely a figure of speech. The Conference was concerned solely with slavery and institutions and practices similar to slavery and not with the question of a fair reward for land workers who were not landlords. That issue was within the jurisdiction of other international bodies.89 Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc E/CONF.24/SR.4, 11 November 1958, p. 5. 87 United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Pakistan: Amendments to Article 1, UN Doc E/CONF.24/L.36, 30 August 1956. 88 United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the TwentyFirst Meeting, 31 August 1956, UN Doc E/CONF.24/SR.21, 20 November 1958, pp. 6–7. 89 Id., p. 7.

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As a result of this exchange, it was noted that the proposed amendment appeared to “involve the institution of share-cropping”. Having turned to the Representative of the International Labour Organisation for clarification, it was determined that if the amendment was adopted, “the whole system of share-cropping might be involved. The ILO would regard such a system as an aspect of abnormally low standards of labour rather than of slavery”.90 Not surprisingly the proposed amendment was withdrawn, with the Conference adopting – it bears repeating – the following definition of serfdom a part of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status.

As far as contemporary manifestations of serfdom are concerned, the UN Special Rapporteur on Contemporary Forms of Slavery, Gulnara Shahinian, having undertaken a mission to Mauritania in 2010, stated that she had: heard reports of serfdom whereby former Haratines91 slaves work pieces of land for years but are denied legal ownership of property, whereas the same piece of land is willingly given to white Moors who do not invest in the land. The Moors then either force the former Haratines slaves to give tithes or force them off their land. In this regard, the Special Rapporteur met with a group of former Haratine slaves who are serfs– known as the Organisation de Sauniers d’Idjil (Idjil Salt-miners Organization) – who extracted salt for many years. They pay the local government tax for exploiting the land and they pay a tax to their master. They have lodged several complaints against

90 Id. 91 The Special Rapporteur had the following to say about the Haratine: The word ‘Haratine’ is derived from the Arabic word for freedom, as they are perceived by the rest of society as freed slaves. The Haratine continue to suffer discrimination, marginalization and exclusion due to their membership of a “slave caste” and are the ethnic group most associated with slavery in Mauritania today. In many cases, the Haratine, even if freed, continue to serve their masters because they are economically, culturally and psychologically attached to them and they see no other viable option. Whether freed or still enslaved (abid), black Moors are referred to as Haratine. United Nations, General Assembly, Human Rights Council, Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, Gulnara

servitude183 their master’s demand for payment, but to no avail. In addition, they have been denied legal title to the land.

The Special Rapporteur also provided context to her discussion on serfdom, noting that: Traditionally, land was held by community elders or nobles who were masters (in the white Moors and in the black African communities, it was those who were not from the slave caste). Land ownership was passed on from one generation to the next. Slaves worked pieces of land but never owned them. This then resulted into serfdom. The slaves become serfs as a result of the fact that they share with their masters any profits from the land, thereby giving their masters a percentage of their produce.92

The definition itself of serfdom, as set out in the 1956 Supplementary Convention, appears to address serfdom as a vestige of a practice which is to be abolished, as opposed to addressing the possibility of somebody becoming a serf in today’s world. This is so, as the nature of being bound to the land is based on “law, custom or agreement”; rather than on coercion or violence. However, in reading the definition, emphasis should be placed on the fact that the serf is ‘bound to live and labour’ on specific land and ‘is not free to change his [or her] status’. As such, the definition requires, beyond living and labouring on somebody else’s land, a lack of free will to be manifest: that in being bound to the land and not being free to change your status, you will be compelled to live and labour, for the benefit of another against your will. If this consideration is correct then it is clear that a person held in serfdom – as defined in the 1956 Supple­ mentary Convention – would, in law, be a slave. Being forced to ‘render some determinate service’ and ‘bound to live and labour on land belonging to another person’ without being able to change one’s condition would meet the definitional threshold of slavery as set out in the 1926 Slavery Convention. This is so as the exercise of a number of the powers attaching to the right of ownership would be present in a situation of serfdom, including the exercise of control tantamount to possession (where a person is not free to change their status or condition) and – in such a situation, where ‘possession’ is in evidence – the individual is used (re: toiling on the land) and profit gained from such use would be present. It will, as with any such case under consideration, depend on the facts of the given

Shahinian, Mission to Mauritania, Addendum, UN Doc. A/HRC/15/20/Add.2, 16 August 2010, p. 6. 92 Id., pp. 14–15.

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case, but in general terms there appears to be little difference in the definition set out in the 1956 Supplementary Convention, as between serfdom as servitude and between serfdom as slavery. As there is no international jurisprudence to turn to in making a determination of a case of serfdom; the considerations of the specialised bodies of the League of Nations and the United Nations as set out in this Section appear to be the best guide in seeking to interpret the provisions of 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. Servile Marriage In 2008, The Republic of Niger was found responsible for failing to protect one of its citizens, Hadijatou Mani Koraou, from slavery.93 Here was an instance of a twelve-year old girl being purchased for the equivalent of approximately $400 as a Sadaka or ‘fifth wife’, that is: a wife, but for the fact that women cannot be acknowledged as such, as men are limited to four wives as per the teachings of Islam. In the case at hand, the man purchasing Mani and delivering her into a servile marriage was not held liable; instead it was the State which was found in breach of its positive obligations under the African Charter on Human and Peoples’ Rights. And yet, contemporary international law has a further bearing on this and other like-cases: as the failure of States like Niger to address practices such as Sadaka carry the responsibility of the State, such cases also carry the individual criminal liability of policy-makers such as ministers and heads of governments or States who fail to address such widespread instances of servile marriage.94 While forced marriage is generally considered as a marriage where full and free consent has not been forthcoming; servile marriage as an institution or practice similar to slavery is narrower in scope, as it deals with three specific instances where a women is commodified through marriage. The suppression of such institutions and practices is called for by 93 Hadijatou Mani Koraou v. La Republic de Niger, ECOWAS Court of Justice, Arrêt No. ECW/CCJ/JUD/06/08, 27 October 2008. See: http://www.unhcr.org/refworld/docid/ 491168d42.html. An unofficial translation is available at: http://www.unhcr.org/cgi-bin/ texis/vtx/refworld/rwmain?docid_496b41fa2. See also: Jean Allain, “Hadijatou Mani Koraou v. Republic of Niger”, American Journal of International Law, Vol. 103, 2009, p. 311–317. 94 See an elaboration of the point of the need to address practices of servile marriage or face the possibility of policy-makers incurring international criminal responsibility in Chapter 7.

servitude185 the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. Yet that Supple­ mentary Convention was established to complement the 1926 Slavery Convention by establishing – in law – lesser servitudes to be suppressed, with the proviso that these ‘institutions and practices similar to slavery’ would be addressed “whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention”. This section demonstrates that these three instances of servile marriage established by the 1956 Supplementary Convention, wherein a bride is purchased, a wife transferred, or a widow inherited, under the pretext of marriage, are, in law – in all circumstances – ‘slavery’ as defined by the 1926 Slavery Con­ vention. This is hardly an issue of semantics as enslavement is a crime within the jurisdiction of the International Criminal Court when it transpires in a widespread or systematic manner, and carries with it individual criminal responsibility which could extend to those with governmental responsibility where such practices are not being addressed. The provisions of servile marriage found in the 1956 Supplementary Convention can be considered as both a starting and end point for forced marriage. They are, as a starting point, the first provisions in international law which seeks to address forced marriage by requiring States to place safeguards meant to secure consent; and an end point, as the last salvo of colonial inspired legislation which seeks to suppress specific types of traditional ‘native’ customs as part of a civilising mission. The provisions of the Supplementary Convention dealing with servile marriage, although adopted in 1956, find their genesis, as with all of the conventional servitudes, in the work of the League of Nations and the Temporary Slavery Commission of 1924–1925. It should be recalled that when the Commission rendered its Report in 1925, colonialism was at its apogee, and a true dichotomy existed between those States within the League of Nations which were so-called ‘civilised nations’ and those excluded from membership as being ‘uncivilised’.95 Where forced marriage was concerned, the issue as considered by the League of Nations was one of curtailing the excesses of ‘native marriages’. Under the heading of ‘Acquisition of Girls by Purchase Disguised as Payment of Dowry’, the Temporary Slavery Commission stated in 1925 that “both native customary law and Moslem law regarding marriage properly so called do not, from a native standpoint, involve the purchase of a wife or any act of enslaving and that cases 95 See Jean Allain, “Slavery and the League of Nations: Ethiopia as a Civilised Nation”, Journal of the History of International Law, Vol. 8, 2006, pp. 213–244.

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which might approximate to slave-dealing are entirely opposed both to the Koranic and to native customary law”. That said, the Commission took issue with concubinage under Moslem law, but only as it transpired in “certain local practices” wherein “a concubine is generally effected by means of a payment of a sum of money […] which in this case is, in fact, a real purchase”. While calling for the end of the legal status of slavery as manifest in a concubine, the Commission was unwilling to call on the “master to liberate his concubine, even if she did not desire her freedom” as this would “result in the concubine becoming merely a kept woman and her children would be bastardised”. The Commission also took issue with polygamy, saying that in general terms its result may be “to force the less-favoured wives into a state of servitude differing little from slavery”. With this, the Temporary Slavery Commission concluded that “a general amelioration of the lot of women can only be looked for in the growth of civilization and education, together with a more widespread knowledge of the right of every slave of either sex to assert his or her freedom”.96 During the negotiations of what would become the 1926 Slavery Convention, the inclusion of servile marriage was mooted, though ultimately rejected. The League of Nations did not consider the issue of servile marriage again until 1932, in the first report prepared by the newly created Committee of Experts on Slavery. The Committee, while repeating much of what the Temporary Slavery Commission had said in 1925, noted that “there was a great deal of misunderstanding in regard to the ‘Lobolo’ system – i.e., the sum paid to the girl’s family by the fiancé. The most competent authorities regard this, not as a purchase price, but rather as a guarantee of proper treatment and an actual certificate of legal marriage.”97 That said, the Committee of Experts on Slavery went on to note that: When the handing over of a dowry is in fact a disguised purchase – that is when it confers on the person provided the dowry rights analogous to those of an owner of a chattel – this practices comes within the category of slavedealing; it has accordingly lost all legal validity and may even be punishable in countries which, in 1925, still tolerated slavery, but have since abolished it”.98

In 1935, the successor to the Committee of Experts on Slavery, the Advisory Committee of Experts on Slavery, returned to the issue of ‘Lobolo’ noting 96 See Temporary Slavery Commission, n. 49, p. 8. 97 League of Nations, Slavery: Report of the Committee of Experts on Slavery provided by the Assembly Resolution of September 25th, 1931, C. 618.1932. VI, 1 September 1932, p. 17. 98 Id., p. 17.

servitude187 that further information confirmed the understanding of the Committee of Experts on Slavery, that it “constituted a guarantee and a legal certification of marriage”. The Advisory Committee of Experts quoted with approval a study by the Public Prosecutor of the Belgian Congo which noted that this type of dowry “was primarily a betrothal custom; it is an instrument testifying to agreement between the parties; it is a mark of affection on the part of the husband; it is a symbol of alliance between the families; it is a pledge of the stability of the union”. Beyond this, the Advisory Committee sought to “take the occasion to correct the opinion that the situation of the women to families set up under the ‘Lobolo’ system is necessarily, or at all events generally, analogous to that of real slavery”.99 Although the Advisory Committee of Experts would publish three further reports, the 1935 Report was the last in which the category of ‘acquisition of girls by purchase disguised as payment of dowry’ appeared. It was not until after the Second World War and the creation of the United Nations, that the issue of forced marriage would find its way once more on the international agenda. The source of the inclusion of provisions dealing with servile marriage in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, results from a 1949 UN Economic and Social Council Resolution instructing the Secretary-General to appoint an ad hoc committee which was to consider issues of slavery and “other institutions and customs resembling slavery”.100 Where the issue of servile marriage was concerned, the Ad Hoc Committee on Slavery considered the practice of ‘bride-price’ and noted: “a social custom exists in many parts of the world whereby a man cannot obtain a wife for himself without offering money or services to the family of his prospective wife”. “If”, the Committee noted, “the custom did not go beyond this practice, often of a token or ritual nature, the Committee would not have considered that it fell within its terms of reference”. However, the Committee stated: in certain societies the payment of bride-price did not entail the cession of any rights of ownership, either in respect of the women involved or of her children. It was also pointed out that the position of a woman in some societies was such that she always remained dependent upon some male person. The Committee did not feel that the explanations given could justify   99 League of Nations, Slavery: Report of the Advisory Committee of Experts, Second Session of the Committee, C.159. M.113.1935.VI, 10 April 1935, p. 17. 100 United Nations, Economic and Social Council, Resolution 238(IX), 20 July 1949.

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chapter four any practice which placed a woman in a servile status. It found ample evidence that in certain parts of the world the bride-to-be is regarded as the property of her father, or that at least his right is recognized to dispose of her in marriage; and that as a widow she is regarded as part of the heritable property of her husband and as such passes to the person who inherits the property on his death. Children of the marriage is such cases are also often at the disposal of their late father’s heir.101

The United Nations Ad Hoc Committee on Slavery considered that in such cases, the practice should be suppressed. It also determined that marriage without the bride’s consent should be suppressed: that States should “encourage civil marriages and their registration as a means of eliminating certain forms of servitude”; and that States should bind themselves to establishing an age of consent of fourteen years of age for females.102 In 1953, the Economic and Social Council considered the Report of the Ad Hoc Committee on Slavery as well as one from Secretary-General which advocated the standardising of age of consent and compulsory registration of marriage, and requested that States be consulted as to the desirability of drafting a supplementary convention to the 1926 Slavery Convention.103 In what would become the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, not only were definitions included for what I have termed bride purchase, wife transfer, and widow inheritance, but also provisions setting out modalities for consent to marriage. Article 2 of the Supplementary Convention reads in part that “States Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages”.104 As will be considered in Chapter Seven, the provisions just mentioned were the first regulation of marriage in international law, would lead in to the 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, and find voice in both the

101 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1988, E/AC.33/13, 4 May 1951, pp. 9–10. 102 Id., pp. 17 and 19. 103 See United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953. 104 United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Final Act and Supplementary Convention, 4 September 1956, UN Doc E/CONF.24/23.

servitude189 International Covenant on Civil and Political Rights and the Convention on the Elimination of all forms of Discrimination against Women. The substantive elements of Article 2 of the 1956 Convention remained intact throughout the negotiation process, with modification taking place only in regard to the issues of the modalities of consent and the minimum age of marriage, though these would engender much discussion. In part, the outcome was that no prescribed, specific, minimum age was agreed to; the issue having been dealt with beyond the 1956 Supplementary Conven­ tion, in the guise of a resolution calling on the United Nations to consider establishing “a minimum age for marriage, preferably of not less than 14 years”.105 Where the issue of consent to marriage is concerned, during the drafting of the 1956 Convention, it was noted that: Marriage might be the last refuge of slavery and did not necessarily represent its mildest form. A woman might well be united for the rest of her life to a man whom she had married under compulsion. Consent must be given freely and therefore must be expressed at a formal ceremony. Admittedly, moral pressure could be brought to bear upon her, but an appreciable result would already have been achieved if the woman had the opportunity of refusing her consent before a qualified civil or religious witness if she had the courage to do so. [This Article] should be drafted with great caution so that free consent could be attested to without causing an upheaval in customs and usage.106

That said, the obligations with regard to consent were softened as these originally required rather than encouraged ‘the use of facilities whereby the consent of both parties to a marriage may be freely expressed’. Having considered the modalities for expressing consent to marriage, we can now turn to the provisions of the three different types of servile marriage outlined in Article 1(c) of the 1956 Supplementary Convention. Bride Purchase A woman, without the right to refuse, is given in marriage on payment or a consideration in money or in kind to her parents, guardian, family or clan. 105 See United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Draft resolution, UN Doc E/CONF.24/L.45/Rev.1, 3 September 1956. Also note that this Resolution was the genesis for the 1962 UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages. 106 United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Thirteenth Meeting, 25 January 1956, UN Doc. E/AC.43/SR.13, 27 February 1956, pp. 5, 6 and 7.

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During the negotiation process which led to the adoption of this first provision of servile marriage to be abolished or abandoned, two issues were raised which help elucidate the content of such bride purchase. The first was the fear that the provision could conflict with Islamic law. This concern was allayed by the emphasis on the “essential qualifying phrase of that sub-paragraph, namely ‘without the rights to refuse’” and not the fact that money might be exchanged in the form of dowry.107 For the Repre­ sentative of Vietnam at the 1956 Conference of Plenipotentiaries negotiating the 1956 Supplementary Convention, the very issue of money changing hands in marriage was immaterial; instead the Representative sought a provision which went beyond servile marriage and outlawed forced marriage more generally. However, such an amendment failed to garner enough support and was never called to a vote.108 Where the issue of bride purchase is at play out today, one need not look any further than the case noted earlier in this section, of the practice of Sadaka, where the victim Hadijatou Mani Koraou was sold to a forty-six year old tribal chief of the Haoussa. As the Court noted: This transaction occurred in the name of the Wahiya, a current practice in Niger consisting of acquiring a young girl, generally a slave, to work as a servant as well as a concubine. The slave woman who is bought under these conditions is called Sadaka or fifth wife, i.e. a wife who is not one of the legally married wives, the number of which cannot exceed four (4), according to Islam’s Recommendations.  In general the Sadaka does housework and is at the ‘master’s’ service. He can, at any time, day or night, have sexual relations with her.109

In the case of the purchase of a bride – the purchase of a person – we are witnessing a classic example of slavery. Classic in the sense of the ability to buy or sell a person is manifestly a prime example of being brought into slavery. As has been considered in the Chapter Three on slavery, in relation to the powers attaching to the right of ownership, the purchasing of a bride will be evidence of slavery; that placed in a situation where she is 107 United Nations, Economic and Social Council, United Nations Conference of Pleni­ potentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Fourth Meeting, 15 August 1956, UN Doc E/CONF.24/SR.4, 11 November 1958, p. 2. 108 See United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the TwentyFirst Meeting, 31 August 1956, UN Doc E/CONF.24/SR.21, 20 November 1958, p. 9. 109 Hadijatou Mani Koraou v. La Republic de Niger, ECOWAS Court of Justice, Arrêt No. ECW/CCJ/JUD/06/08, 27 October 2008, paras 8–10.

servitude191 ‘without the right to refuse’ speaks to the exercise of control over her tantamount to the type of control exercised over a thing in the case of possession. As such, a situation fitting the definition of ‘bride purchase’, as set out in Article 1(c)(i) of the 1956 Supplementary Convention, would in all instances, meet not only the threshold of a servitude, but also slavery as defined in the 1926 Slavery Convention. Wife Transfer The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise.

With regard to the second provision of Article 1(c) related to the transfer of a wife, the negotiation history shows that while the original intent had been to allow for such a transfer as long as money was not exchanged; ultimately, unanimity prevailed at the 1956 Conference negotiating the Supplementary Convention with a recognition that money need not be in play, and that “the practice should be condemned in such instances”.110 Where the issue of wife transfer has contemporary resonance is with the apparent case of North Korean women fleeing famine to China during the mid-1990s, in that they found themselves brokered into marriage to produce an heir in a situation where the one-child policy of China had made the possibility of a wife scarce (“In one area, the male-female ratio among those of marriageable age is estimated at a staggering 14-1”) in situations of rural poverty. In essence, a woman would be married to a man to produce a child then as a wife, be transferred to another man to once more produce off-spring. As illegal economic migrants, these North Korean women lacked protection of the law which then created a situation, as reported in Lives for Sale, where several women “testify that they had been or had almost been sold to different ‘husbands’ and when wives are resold for a price like the ones cited in these stories, the intent of the husbands in ‘marrying’ these women can hardly be said to be the genuine intent that one would expect from marriage”.111 Like the purchasing of a bride, the ability to transfer a wife in exchange for ‘value received or otherwise’ speaks to a transaction which falls squarely within parameters of the definition of slavery, with the proviso 110 United Nations, Economic and Social Council, Committee on the Drafting of a Supplementary Convention on Slavery and Servitude, Summary Record of the Eleventh Meeting, 20 January 1956, UN Doc. E/AC.43/SR.11, 24 February 1956, p. 12. 111 Committee for Human Rights in North Korea, Lives for Sale: Personal Accounts of Women Fleeing North Korea to China, 2009, p. 53.

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that a background relationship of control tantamount to possession would need to be present. As noted earlier, in 1953, the United Nations SecretaryGeneral outlined six characteristics of what he considered to be the ‘powers attaching to the rights of ownership’ (re: the component part upon which the 1926 definition of slavery turns), one of which was “the ownership of the individual of servile status can be transferred to another person”.112 Again, as with bride purchase, the definition of ‘wife transfer’ while being, ipso facto, a servitude, also meets the definitional standard set by the 1926 Convention of slavery. Widow Inheritance A woman on the death of her husband is liable to be inherited by another person.

The final instance of servile marriage set out in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery relates to the inheritance of a widow. The negotiation process did not elicit discussion but for the acknowledgment that such inheritance should not be limited to heirs, but be outlawed no matter the supposed benefactor.113 With regard to its contemporary manifestation, in 2006, the Research Directorate of the Immigration and Refugee Board of Canada prepared a noted regarding the Levirate marriage practices which persist among the Yoruba, Igbo and Hausa-Fulani of Nigeria. Amongst the elements noted was the practice based on customary law that “widows are considered part of the estate of their deceased husband and, therefore, have no inheritance rights themselves”, and that certain customary law systems “prescribe that a widow [be] ‘inherited’ by a male relative of the former husband”.114 Likewise, a 2003 Human Rights Watch report on property 112 See Chapter 3, p. 114. 113 United Nations, Economic and Social Council, The Draft Supplementary Convention of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 24. 114 Immigration and Refugee Board of Canada, Nigeria: Levirate marriage practices among the Yoruba, Igbo and Hausa-Fulani; consequences for a man or woman who refuses to participate in the marriage; availability of state protection (February 2006), 16 March 2006, NGA101045.E; as found at RefWorld: 2006, NGA101045.E, available at: http://www .unhcr.org/refworld/docid/45f1478811.html. Note also: O.O. Fasoranti and J.O. Aruna, “A Cross-Cultural Comparison of Practices Relating to Widowhood and Widow-Inheritance Among the Igbo and Yoruba in Nigeria”, Journal of World Anthropology, Volume 33, 2002, pp. 53–73.

servitude193 rights of women in Kenya, explaining that the practices of wife inheritance and so-called ‘ritual cleansing’ was widespread and noted that: Although the terms ‘wife inheritance’ and ‘cleansing’ are sometimes used interchangeably, wife inheritance generally refers to the long-term union of a widow and a male relative of the deceased, and cleansing typically refers to a short-term or one-time sexual encounter with a man paid to have sex with the widow. These practices reflect the common belief that women cannot be trusted to own property and the belief that widows are contaminated with evil spirits when their husbands die.115

In the case of Kenya, it appears that the law of property was such that women, upon the death of their husband, found themselves destitute as all property was transferred to a male relative of the deceased. This resulted in two possible outcomes for the bereaved wife: being inherited or left with nothing. Thus the legal regime of property would facilitate the ability to control a widow in such a manner that the male heir could treat her as his possession. In such a case and more generally, the ‘inheritance of a widow’ meets the legal threshold of servitude but also, in law, is slavery. Child Trafficking Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

The genesis of this, the final conventional servitude set out in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery emerges in a 1925 report of the League of Nations’ Temporary Slavery Commission which considered the issue of children being enslaved under the pretext of adoption.116 While the issue of enslavement through adoption was not specifi­ cally included in the 1926 Slavery Convention, discussions of such a practice in the context of China did take place sporadically throughout the 1930s; though little of substance emerged.117 Considerations of such 115 Human Rights Watch, “Double Standards: Women’s Property Rights Violations in Kenya”, Volume 15, Number 5(A), 2003, p. 12. 116 Temporary Slavery Commission, n. 49, p. 8. 117 See League of Nations, Slavery: Report of the Committee of Experts on Slavery provided by the Assembly Resolution of September 25th, 1931, C. 618.1932. VI, 1 September 1932; League of Nations, Slavery: Report of the Advisory Committee of Experts, Second Session

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adoptions was then picked up by the United Nations in 1951, with the UN Ad Hoc Committee on Slavery, determining that the issue fell within its mandate where “a child is transferred by its parents or guardians to a third party on payment or under conditions permitting the exploitation of the child regardless of its welfare”.118 The Committee explained its inclusion of these provisions, again with particular reference to the practice as it transpired in China: This involves the sale of a child’s working capacity and usually takes the form of the transfer of a small child, usually a girl, for employment as a domestic servant by means of an adoption procedure, sometimes fraudulent. The custom has been known to exist under other names in other regions of the world […]. The Committee recognized that in many cases an element of servitude may not be involved. Often the parents of the child affect such a transfer in what they believe to be the best interests of the child. The Committee therefore felt that a status or condition of servitude existed only when the conditions of the transfer were such as to permit the exploitation of the child regardless of its welfare.119

In considering the provisions on child trafficking in the draft form, of what would become the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, in 1955, Haiti acknowledged that the practice, whereby children of ‘peasants’ were, by custom, often ‘adopted’ by ‘townspeople’, transpired on its territory. This is rather interesting, as the practice of restavèks – Creole for ‘to stay with’ – persists to this day in the form of the transfer of children into domestic work, which is often exploitive.120 For its part, the Haitian Repre­sentative declared, in 1955, that his Government had no objection to the provision of what would become Article 1(d) of the 1956 Supple­ mentary Convention, as laws had been put in place in Haiti to prevent

of the Committee, C.159. M.113.1935.VI, 10 April 1935; and League of Nations, Slavery: Report of the Advisory Committee of Experts, Fifth (Extraordinary) Session of the Committee, C.112. M.98.1938. VI, 5 April 1938. 118 United Nations, Economic and Social Council, Report of the Ad Hoc Committee on Slavery (Second Session), UN Doc E/1988, E/AC.33/13, 4 May 1951, p. 20. 119 United Nations, Economic and Social Council, Slavery: Consultations Concerning the Desirability of a Supplementary Convention on Slavery and its Possible Contents, UN Doc E/2540/Add.4, 12 April 1954, p. 10. 120 United Nations, General Assembly, Human Rights Council, Report of the Special Rapporteur on Contemporary Forms of Slavery, including its Causes and Consequences, Gulnara Shahinian, Addendum: Mission to Haiti, UN Doc. A/HRC/12/21/Add.1, 4 September 2009.

servitude195 “malpractices.121 Despite this 1950s attempt to prevent such child trafficking, the UN Special Rapporteur on Contemporary Forms of Slavery, Gulnara Shahinian, as a result of her 2009 Mission to Haiti, considered the situation of “child domestic workers or restavèks, “a contemporary form of slavery”.122 Such an overarching statement, it appears, does not do justice to a reading of the provisions of Article 1(d) of the 1956 Supplementary Convention related to child trafficking when considering the facts of the case as presented by the Special Rapporteur. The restavèks phenomenon is one whereby “families, mainly in rural areas, faced with a dire economic situation give custody of their children to more affluent families, in urban centres, in the hope that they will provide food, clothing, shelter, schooling and health care in return for the child’s domestic labour”. While host families “clearly expects the child to work much harder than their children”, the Special Rapporteur notes that it was understood that “the placement of a restavèk child implies that the host family will provide for the well-being of the child”.123 It is estimated that between 150,000 and 300,000 children are restavèk – the largest single sector utilising child labour in Haiti – and it is thought that these numbers are growing.124 The Special Rapporteur considers that this growth in the restavèks phenomenon is due to the “worsening of the economic situation in the country”, which has led to emergence of: 1) recruiters who have introduced into the equation of restavèk monetary transactions for the first time; and 2) restavèk being placed in “poor families”. The Special Rapporteur noted that due to “demographic changes, rich families no longer need restavèks as they have paid workers to carry out their domestic chores. However, those same domestic workers now have restavèk to take care of their children and their home while they are at work”. These two new tendencies, the Special Rapporteur concluded, “certainly contribute to the exploitative nature of the restavèk system.125

121 United Nations, Economic and Social Council, The Draft Supplementary Conven­ tion  of Slavery and Servitude Submitted by the Government of the United Kingdom and Comments Thereon (Memorandum by the Secretary-General), UN Doc E/AC.43/L.1, 2 December 1955, p. 25. 122 Mission to Haiti, n. 120, p. 4 and repeated at p. 8, 9, and 15. 123 Id., p. 6. 124 Id., pp. 7 and 8. 125 Id., p. 6.

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In considering the issue of restavèks in relation to the norms of international law, the Special Rapporteur stated: There are many important international legal instruments that classify conditions of restavèk children as slavery. Article 1 paragraph (d) of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery clearly refers to “Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour” – situations in which the restavèk phenomenon can be considered a modern form of slavery.126

Later, the Special Rapporteur states that she “is deeply concerned over the highly exploitative nature of the restavèk system and considers it to be a contemporary form of slavery as stipulated in article 1(d) of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery”.127 It is clear that prima facie, the restavèks phenomenon is exploitive; however this does not automatically mean that it meets the legal definition of Article 1(d) of the 1956 Supplementary Convention. Just as the major distinction between an exploitive practice and the trafficking of a 126 Id., pp. 7–8. Note that the Special Rapporteur continues: Two elements of the definition are particularly important to stress with regard to restavèk children. First, the act of giving a child to another family other than the biological family, and second the exploitation of the child or his or her labour. As the Convention demonstrates, the condition of ‘reward’ is not critical in this process. As noted by David Weissbrodt in his review of existing treaty and customary law covering all the traditional and contemporary slavery-related practices and relevant monitoring mechanisms, this provision was implemented with the particular practice of ‘sham adoptions’ in mind, but in fact covers a wider range of practices involving the exploitation of children, including the practice of ‘children being sent to the households of relatives or others who are expected by the child’s parents to give special attention to their education but in reality exploit the child’s labour’ – this mostly affects those employed as live-in domestics. Furthermore, article 3(d) of ILO Convention 182 clearly refers to conditions in which restavèk children are living, stipulating that ‘… the term the worst forms of child labour comprises: … (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children’. Article 32 of the Convention on the Rights of the Child calls for States parties to protect children from economic exploitation and from performing any work which is hazardous or interferes with the child’s education or is harmful to the child’s health or physical, mental, spiritual, moral or social development. Based on information received during the visit, children were not given away by families in order to receive a reward, but families were aware of the fact their child will be paying with his or her work to receive schooling, food, and a place to live. 127 Id., p. 9.

servitude197 person for such a purpose (as will be considered in Chapter Eight) is fundamental to understanding the legal definition of trafficking, so too is it fundamental to the application of Article 1(d) of the 1956 Supplementary Convention. In considering the application this Article, it is worth repeating it provisions once more: Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

Note that the Article 1(d) of the 1956 Supplementary Convention prohib­ its a parent or guardian from delivering a child to another “with a view to the exploitation of the child or young person or of his labour”. The crime being addressed, if you wish, is not the exploitation of a child, but the transferring of that child with the intent of their exploitation. If, as the Special Rapporteur notes “the placement of a restavèk child implies that the host family will provide for the well-being of the child”; then in such circumstances the parent or the guardian would not run afoul of Article 1(d) of the Supplementary Convention.128 However, where, say, a recruiter acting as guardian during the transfer knows that the child will be exploited, then the application of the 1956 Convention comes into play. Whether once in the household – and maybe even where the parent or guardian has received assurances that the well-being of the child will be taken paramount – a child is exploited moves us beyond the provisions of 1956 Supplementary Convention and into, in the two most likely scenarios 128 The Committee which drafted the Palermo Protocol appear to take the same approach with regard to illegal adoptions noting that “the travaux préparatoires should indicate that where illegal adoption amounts to a practice similar to slavery as defined in article 1, paragraph (d), of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, it will also fall within the scope of the Protocol”. United Nations, General Assembly, Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the work of its first to eleventh sessions, Addendum: Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, UN Doc. A/55/383/Add.1, 3 November 2000, p. 12. Again, unless the adopted children are being adopted so as to be exploited, such adoptions would not run afoul of Article 1(d) of the 1956 Convention. The simple fact that it is an illegal adoption and there may be trafficking in adopted babies does not violate the provisions of Article 1(d). For such apparent trafficking in adopted children see Wereldkinderen, Inter-country Adoption: The Rights of the Child, or the ‘Harvesting’ of Children’?: A Study on Inter-country Adoption in Ethiopia, Second Interim Report, 6 October 2009.

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manifest in the worst forms of child labour: forced labour or slavery.129 That is to say, depending on the facts of the actual case of exploitation taking place with a restavèk, it may meet the definitional threshold of the forced labour as set out in the 1930 Forced Labour Convention or reach to the level of slavery as set out in the 1926 Slavery Convention. While the Special Rapporteur may make a generalisation as to the nature of the restavèk system; in legal terms, one would have to look at the case at hand. While the restavèks phenomenon will, in all likelihood, run the gamut from situations of children prospering, to various forms of exploitation, to falling under the provisions of the Worst Forms of Child Labour Convention; Article 1(d) of the 1956 Supplementary Convention can only be invoked where the parent or guardian has delivered a child with the intent that that child or his or her labour being exploited. A more measured approach has been taken by the United Nations Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, Najat Maalla M’jid, who in reporting about her Mission to Senegal in 2010, stated that: The Ministry of Justice report on trafficking reveals that certain sociocultural practices such as confiage, early placement in employment and the talibé phenomenon are very widespread. Confiage denotes a practice commonplace in Senegal and other West African countries whereby parenting responsibilities are delegated to persons other than the child’s biological parents. In Senegal, the practice is referred to as yaar doom, meaning ‘childrearing’. In practice, yaar doom entails parents sending children to stay with family members or to Koranic schools that are sometimes a long way from their town or village of origin. Under this system, children follow an educational programme while at the same time, in many cases, contributing to the

129 Article 3, of the ILO 1999 Worst Forms of Child Labour Convention sets out what comprises the term ‘the worst forms of child labour’: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. Note that this definition makes mention of debt bondage, serfdom and child trafficking (but is silent on servile marriage, not deeming such instances as labour): i.e.: those conventional servitudes set out in the 1956 Supplementary Convention.

servitude199 informal economy. In most cases, parents lack the financial resources to contribute to the costs of the institutions and it is not uncommon for children to be exploited sexually and economically. For example, children are often forced to beg to provide for their own needs and those of their teacher. The Ministry of Justice report emphasizes that the traditional practices of child migration and placing children with members of the extended family are not wrong per se – quite the opposite in fact, as they provide a stepping stone to a better future for thousands of young girls and boys. However, the Special Rapporteur emphasizes the need to ‘distinguish between children placed outside the family in the context of these traditional practices and child victims of trafficking and exploitation’.130

The obligations regarding child trafficking within the context of Article 1(d) of the 1956 Supplementary Convention, raises a rather interesting question as to whether the United Nations Palermo Protocol is rendered redundant by these provisions where children are concerned? It is worth considering this question, with the proviso that the overall issue of trafficking will be considered in more depth in Chapter Eight. Both the 2000 United Nations Protocol on Trafficking in Persons and the 2005 Council of Europe Convention on Trafficking in Human Beings have an identical definition of trafficking: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.131

In both the United Nations and Council of Europe conventions, two further provisions are germane to this definition where children are concerned. First, that a child is deemed to be a person under the age of eighteen; and second, that the “recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be 130 United Nations, General Assembly, Human Rights Council, Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, Najat Maalla M’jid: Mission to Senegal, 28 December 2010, UN Doc A/HRC/16/57/Add.3, p. 4. 131 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, 2000; and Council of Europe Convention on Action against Trafficking in Human Beings, 2005.

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considered ‘trafficking in persons’ even if this does not involve any of the means set forth in [the above] article”. In other words, where children are concerned the definition of “trafficking in persons” should be understood to read: shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, […] for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs

Compare this to the provisions of Article 1(d) of the 1956 Supplementary Convention that reads: Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

Both the trafficking conventions and the 1956 Supplementary Convention set out the same two elements with regard to the trafficking of children: the method by which trafficking takes place and its purpose – that of exploitation. That said, a strict reading of the texts would mean that the trafficking conventions have a broader reach than the 1956 Convention, as both the United Nations and the Council of Europe conventions address not only the transfer of a child (for the 1956 Convention, it speaks of delivery), but also the recruitment, transportation, harbouring, and receipt of a child. Where the element of exploitation is concerned, the 1956 Convention does not provided any content to the term; while the United Nations and Council of Europe trafficking conventions enumerated a set of examples of what is to be considered exploitive behaviour, including slavery, practices similar to slavery and servitude. That said, these identical definitions, as set out in the United Nations and Council of Europe conventions, note that the examples are to be considered to be “at a minimum”, what constitutes exploitation. In other words, like the 1956 Supple­mentary Convention, the United Nations and Council of Europe trafficking conventions leave it open to States to give content – or further content – to the term exploitation. Beyond these similarities and differences between the provisions of Article 1(d) of the 1956 Supplementary Convention and those of the United Nations and Council of Europe trafficking conventions where they apply to children; it should be made clear that each of the three legal instruments create different obligations flowing from their application in cases

servitude201 of child trafficking. As for the United Nations and Council of Europe trafficking conventions, these obligations will be considered in Chapter Eight; where the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery is concerned, those obligations have already been considered at the start of the Section on The Conventional Servitudes. In closing this section on child trafficking, it might be worthwhile to revisit the original driving force which brought the issue to international prominence: the consideration within the League of Nations regarding children being enslaved under the pretext of adoption. This issue can be dealt with rather summarily, with reference to the analysis developed with regard to the restavèks phenomenon. That is to say that adoptions, legal or otherwise, will only constitute child trafficking in the sense of Article 1(d) of the 1956 Supplementary Convention where there is intent to exploit the child.132 Thus, even the sale of children for adoption will not fall under the provisions of the 1956 Supplementary Convention: unless such a sale is meant to bring the child into an exploitive relationship resulting from the adoption. That said, while such sales would not fall under the provisions of the Article 1(d) 1956 Supplementary Convention, they would be captured by the definition of slavery, as reproduced at Article 7(a) of the same Convention and as considered in the previous Chapter. Conclusion The regime of human servitudes has been obscured by the splintering off of forced or compulsory labour – to which the next Chapter is devoted – and the fact that the 1956 Supplementary Convention went from being an instrument meant to address ‘servitude’ to one addressing ‘institutions and practices similar to slavery’. If that was not enough to muddy the

132 This is consonant with the Interpretative Notes to the Palermo Protocol provided by the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime which, in this case, reads: Where illegal adoption amounts to a practice similar to slavery as defined in article 1, paragraph (d), of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery it will also fall within the scope of the protocol. See United Nations, United Nations Office on Drugs and Crime, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, 2006, p. 347.

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waters, the term ‘slavery-like practice’ gained greater prominence within the United Nations system despite the fact that it lacked any meaning in law and any substance beyond that which the ‘policy’ organs of the United Nations had wish to confer on it. Having been lost in this tempest, it is not surprising that courts, such as the European Court of Human Rights, have struggled to give content to a stand-alone reading of servitude. This Chapter has demonstrated that servitude as it was developed during the first half of the Twentieth Century was based not on a definitional understanding of the term servitude, but one based on categorisation. In general international law, human servitude is understood as those four instances of servile status set out in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery: debt bondage, serfdom, servile marriage and chid trafficking. This categorisation provides better footing in law than attempts over the last fifty years within international human rights law to define servitude. As such, like slavery and forced or compulsory labour, reference should be made back to previous instruments; in this case to the conventional servitudes found in the 1956 Supplementary Convention, so as to determine the normative content of servitude in international law. In considering each of these conventional servitudes in turn, it becomes clear that where serfdom and servile marriage are concerned, they are by definition forms of slavery. The definition of debt bondage allows room for its manifestations to constitute servitude, but where the exercise of powers attaching to the right of ownership is at play it will be deemed, in law, slavery. With regard to child trafficking, the servitude will be deemed to be present in a situation where a child is delivered by a parent or guardian to another person with the view to exploit. As such any exploitation short of slavery will be deemed servitude in the case of child trafficking, where the 1956 Supplementary Convention might be engaged. As a result of these considerations, servitude in international law is rather narrow in its application, limited to debt bondage and the provisions of child trafficking as defined by the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, where these instances of servitude falls short of the legal definition of slavery. Though it may be said that the 1956 obligations regarding child trafficking have been superseded by those emanating from the 2000 UN trafficking convention – the Palermo Protocol.

CHAPTER FIVE

FORCED OR COMPULSORY LABOUR

Forced labour covers a long arc of activities. Its definition in law is such that it covers both the rather benign situation of a grocery clerk, against her wish, being required to accept less than minimum wage under the threat of being fired; to compelling a slave to labour. Such is the reach of forced labour that it will overlap with many of types of exploitation be it slavery, debt bondage, serfdom, child trafficking, or exploitation of prostitution. However, that reach will only hold where, as its definition makes plain, labour ‘is exacted under menace of any penalty for its nonperformance and for which the worker concerned does not offer himself voluntarily’. It was the League of Nations which first considered the issue of forced labour, though it should be recognised that such labour was deemed part of the ‘civilizing mission’ of colonial powers and, as such, Members of the League were inclined to do very little to circumscribe it. Since then, the move to end forced labour has received impetus from having been brought into the fold of the International Labour Organisation (ILO) through the 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention and, as a result of this organisational framework, has developed an infrastructure that has allowed the ILO to champion the cause – if not the law – of the eradication of forced labour over time. Having curtailed forced labour through the 1930 Forced Labour Conven­ tion and the 1957 Abolition of Forced Labour Convention, the International Labour Organisation has busied itself throughout much of the Twentieth Century with a successful campaign to eradicate State-sanctioned forced labour. While notable instances persist of widespread utilisation of forced labour by States, in the main, the ILO is involved in a mopping-up operation where State law runs afoul of forced labour. In the main, forced labour no longer takes place on an industrial scale, but rather more at the artisan level, through private hands. The International Labour Organisation, in its first estimates of forced labour noted, in 2005, that there were at minimum 12.3 million individuals forced to labour internationally, of which

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9.8 million were exploited at the hands of private agents. “The remaining 2.5 million are forced to work by the State or by rebel groups”, the latter it might be emphasised are, like private agents, distinct from governments.1 Thus upwards of eighty percent of forced labour today takes place in the private sphere. The successful reach of the ILO in combating forced labour should not detract from the fact that the normative content of forced labour has been done a disservice by its falling under the purview of the International Labour Organisation’s Committee of Experts on the Application of the Conventions and Recommendations. While the ILO has done well to limit the use of forced labour by States and increasingly has turned its attention to addressing forced labour for private ends, sight should not be lost of the manner in which the exceptions to the norm of forced labour have been allowed to expand despite legal obligations to limit the use of forced or compulsory labour. Having considered the content of the norm of forced labour, this Chapter concludes by examing whether, as the International Labour Organisation asserts, forced labour is a jus cogens norm. Contextualising Forced Labour Free labour is the product of law. It is only through the establishment of domestic and international regulation that a person can assert their right to free choice of labour. Traditionally, historians have argued that free labour was synonymous with wage labour and the move away from medieval labour systems manifest in indentured servitudes such as serfdom was the norm rather than the exception. Yet, in the 1990s, such assumptions were challenged, as the work of historians showed that labour systems were best understood on a continuum from free to coerced work as opposed to being in binary opposition. What would have been termed free labour as late as the Nineteenth Century would be deemed today unfree and, by its very nature, exploitive. Thus, in the 1800s, indenture servitude was considered free labour as employees freely consented to a contract which committed them to working for a set number of years. What, in retrospect, makes that relationship a coercive one was that the State, through their criminal law, ensured the terms of the contract were 1 See “Director-General’s Introduction to the International Labour Conference: Consolidating Progress and Moving ahead”, International Labour Conference, 93rd Session, 2005, Report I(A).



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respected, no matter the treatment of employees, by physically returning those who walked away from such contracts, by legislating to add additional days to a contract to make up those lost to illness, and by allowing employers to administer corporal punishment.2 What would have been termed ‘free labour’ during this period was hardly free by today’s standards, as nonpecuniary pressures were used to create a form of ‘coerced contractual labour’. Coercion, which is at the heart of forced labour, falls into a larger conversation. At its most abstract, any labour can be understood as being coerced. Beyond being physically compelled to work, coerced labour can best be understood as a “situation in which the compelled party is offered a choice between disagreeable alternatives and chooses the lesser of two evils”.3 Again, in rather abstract terms, coercion can be deemed to exist where a person is required to choose between living on the street or taking up unpleasant work. Yet by contemporary standards, having chosen the lesser of two evils is not – in law – deemed coerced labour. The determination as to what is considered free labour is “a judgment about what kinds of coercive pressures are legitimate and illegitimate in labour relations”.4 This determination is one which is continuously evolving and is based on the subjective standard set by each State, guided by international labour standards. Illegitimate labour relationships brought to bear on employees are those that fail to meet international labour standards. Put in positive language, a work relationship will be legitimate if it is legal. That is to say, if an employer is respecting domestic labour law, which implements international labour standards set out by the International Labour Organisation, then the working relationship is to be deemed free labour. Short of that, we fall into a situation of an illegitimate working relationship, one which may be deemed exploitive. But exploitation should not be understood as being synonymous with forced labour. If the agricultural labourer accepts to work for more than the prescribed work-week without overtime pay she is being exploited. This is different than a case where an agricultural labourer, having received overtime pay in the past, is forced by her employer to working overtime at normal pay under threat of dismissal. The latter case is forced labour. 2 Robert Steinfeld, The Invention of Free Labour: The Employment Relations in English & American Law and Culture, 1350–1870, 1991, p. 7. 3 Robert Steinfeld, Coercion, Contract and Free Labour in the Nineteenth Century, 2001, p. 14. 4 Id., p. 16.

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In the main, violations of international labour standards may be considered exploitive, but such breaches are typically dealt with as labour infractions. Given a choice, the disagreeable alternatives of working long hours or not working at all, an individual will choose the lesser of two evils. But such an infraction of a labour code often times does not reach the threshold of a criminal law. Instead, it is dealt with through administrative sanction, requiring, for instance, the reimbursement of back-wages and the payment of a fine. Where international labour standards are concerned, it is the antithesis which is worth re-emphasising: if employers are meeting the ILO standards – so called ‘international labour standards’ – then their labour practices are not explosive ipso facto. International labour standards seek to ensure a decent work environment and have, at their core, the principles established in eight fundament instruments which were highlighted in the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work.5 These eight instruments touch on the following areas of labour relations: freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; and the elimination of discrimination in respect of employment and occupation. Beyond these hardcore international labour standards, the International Labour Organisation has negotiated a large number of conventions and recommendations which deal, inter alia, with labour inspection and administration, wages, working hours, occupational safety and health promotion, employment security, social security, employment policy, social policy, vocational guidance and training, maternity protection, plus protection to specific categories of workers, including seafarers, fishers, dockworkers, migrant workers and indigenous peoples. These instruments “aim to guarantee a minimal universal threshold of protection for workers”.6 They do so by acknowledging that States are at 5 The eight Conventions are: Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98); Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105); Minimum Age Convention, 1973 (No. 138); Worst Forms of Child Labour Convention, 1999 (No. 182); Equal Remuneration Convention, 1951 (No. 100); and Discrimination (Employment and Occupation) Convention, 1958 (No. 111). 6 International Labour Conference, Labour Inspection, General Survey of the reports concerning the Labour Inspection Convention, 1947 (No. 81), and the Protocol of 1995 to the Labour Inspection Convention, 1947, and the Labour Inspection Recommendation, 1947 (No. 81), the Labour Inspection (Mining and Transport) Recommendation, 1947 (No. 82), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Labour Inspection (Agriculture) Recommendation, 1969 (No. 133), Report III (Part 1B), Report of



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various levels of economic development and seek to establish frameworks or regimes to be incorporated into domestic law as baselines for ensuring the protection of workers, decent work, and adequate standards in the workplace. Thus, the ILO does not dictate what minimum wage will be in any one State, but instead, requires that each Member State establish a framework which sets a minimum wage and develops the infrastructure to ensure that employees are respecting its application. As a result, while both Australia and Malawi are party to the ILO Convention 131, the 1970 Minimum Wage Fixing Convention, Malawi need not set its minimum wage at the same level as Australia which, it might be noted, is in fact set at a level nearly thirty times less than the minimum wage set in Australia.7 The front-line of action for dealing with issues of exploitation in the workplace is through labour inspection, which ultimately ensures respect for international labour standards through their enforcement of domestic employment law.8 Labour inspection has been central to the mandate of the International Labour Organisation as reflected in Article 427(9) the Treaty of Versailles, which called on States establishing the Organisation to make provision “for a system of inspection […] in order to ensure the enforcement of laws and regulations for the protection of the employed”. Upholding international labour standards through a regime of labour inspection is established by the ILO through a number of instruments modelled on the 1947 Labour Inspection Convention.9 That Convention, which is ratified by 138 States, requires that each State Party “maintain a

the Committee of Experts on the Application of Conventions and Recommendations, Ninety-fifth Session, 2006, p. 3. 7 The minimum wage made comparable through purchasing power parity rates expressed in international dollars with the Australian minimum wage being set at 1557 and the Malawi minimum wage being 53 (1557/53 = 29.38, or nearly 30 times greater). See International Labour Office, Global Wage Report 2008/09, 2008, Appendix, Table A2: Minimum wages, p. 86 and 89. 8 As the ILO Committee of Experts notes: Because of their free access to workplaces and special relationship with employers and workers, labour inspectors are potentially the public officials in the best position to identify situations that might call for legal and legislative solutions aimed at improving protection at work. See International Labour Conference, Labour Inspection, n. 6, p. 45. 9 See also the Protocol of 1995 to the Labour Inspection Convention, 1947 (P. 81), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Labour Inspection (Seafarers) Convention, 1996, (No. 178); along with the Labour Inspection Recommendation, 1947 (No. 81), the Labour Inspection (Mining and Transport) Recommendation, 1947 (No. 82), the Labour Inspection (Agriculture) Recommendation, 1969 (No. 133), and the Labour Inspection (Seafarers) Recommendation, 1996 (No. 185).

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system of labour inspection” in the industrial and commercial workplaces,10 so as: to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours, wages, safety, health and welfare, the employment of children and young persons, and other connected matters, in so far as such provisions are enforceable by labour inspectors.11

The system is also meant “to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions”. The Convention provides that labour inspectors are to be empowered to remedy defects “which they may have reasonable cause to believe constitute a threat to the health or safety of the workers”. In so doing they may turn to judicial or administrative authorities to secure, by legal means, the protection of workers. Article 17 of the Convention provides discre­ tion to the labour inspector as to whether to give a warning or advice to an employer which is in violation or has neglected to observe labour standards, but can either recommend, or where the domestic system permits, institute legal proceeding against such institutions by way of an administrative injunction or criminal law.12 In making a determi­ nation  as to what course should be followed, the ILO Committee of Experts on the Application of the Conventions and Recommendations – in essence the monitoring body responsible for the near two hundred ILO conventions – has stated that: decisions are based on criteria such as the nature of the contravention, the circumstances under which it is committed, the attitude of the person responsible with regard to his legal obligations, repeat offences, the consequences of the contravention and the risks that it entails, correct conduct 10 Article 1, Labour Inspection Convention, 1947 (No. 81). Note that, as of October 2008, the 1995 Protocol had been ratified by 11 States and seeks to extend the reach of the Labour Inspection Convention from the industrial and commercial workplace to “essential national (federal) government administration; the armed services, whether military or civilian personnel; the police and other public security services; and prison services, whether prison staff or prisoners when performing work”. Note that Article 25(1) of the Convention allows for the possibility of States Party to exclude commercial workplaces from consideration. 11 Article 3, Labour Inspection Convention, 1947 (No. 81). 12 As the ILO Committee of Experts notes, the discretion as to whether to give a warning, advice, or a recommend or the institute legal proceeding:”implies that inspection staff have the necessary capacity for judgement to be able to distinguish between serious or repeated wilful non-compliance, culpable negligence or flagrant ill will, which call for a penalty, and an involuntary or minor violation, which may lead to a mere warning”. See International Labour Office, Labour Inspection, n. 6, p. 45. p. 93. .



forced or compulsory labour209 or misconduct, the age of the enterprise, the resources of the employer, etc. Consequently, whenever an inspector considers that advice or warn­ ings are no longer sufficient, he must have the power of recourse to legal proceedings13

In its 2008 General Report, the Committee of Experts emphasised cooperation “between the labour inspection services and the justice system is necessary to ensure the enforcement of legal provisions relating to conditions of work and the protection of workers in cases where the other means of action of the labour inspectorate, such as advice, notifications and warnings, have not been effective”.14 Before turning to consider the legal enforcement of labour standards, a word might be said about inspectors and the use of non-legal means of gaining compliance with international labour standards. Belgium has instituted a health and safety charter as between prime contractors and subcontractors wherein its inspectorate will certify that an applicant has not been the subject “of a definitive conviction, an administrative fine or a work stoppage order relating to circumstances occur­ ring during the previous three years”. […] This certification enhances the company’s image “through its positioning as a decent, reliable enterprise investing in the safety and health of workers. It can use the charter logo on its correspondence, bid documents, etc.”.15 Beyond this innovative approach to preventing labour violations, consideration should be given to the use by labour inspectors of advice, notification and warnings. The ILO Committee of Experts notes that “competent and experienced inspectors are aware of the value of advice and warnings as incentives for the proper application of legal requirements. Generally, it is enough to make a follow-up visit after giving the employer a time limit within which to take remedial action”.16 In most situations, inspectors will “rely on advice and persuasion before instituting or recommending proceedings”; but for situations where there is “wilful or serious non-compliance, culpable negligence or flagrant ill will” more is required.17 In such situations, the “effectiveness of the binding measures taken by the labour inspectorate depends to a large extent 13 International Labour Office, International Labour Conference, General Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), Ninety-seventh Session, 2008, p. 449. 14 Id., p. 422. 15 Id., p. 445. 16 Labour Inspection, n. 6, p. 93. 17 Id., p. 94.

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on the manner in which the judicial authorities deal with cases referred to them by, or at the recommendation of labour inspectors”.18 The effectiveness of this measure is brought into sharp relief by the Ibero-American Confederation of Labour Inspectors, when they noted that in Paraguay “the violations that are detected do not give rise to the imposition of the penalties established by the law and that inspectors are principally engaged in conciliation functions. As a result, the authority and impartiality which are necessary in their relations with employers and workers are seriously prejudiced”.19 The Committee of Experts, for its part calls for cooperation between labour inspection services and the justice system in the form of legislation which would establish:     (i) cases in which the representative of the public prosecutor may either issue a prior warning to the entity responsible for a violation or, within a reasonable period, refer reports of violations by labour inspectors to the competent court;   (ii) cases in which labour inspectors may seek a judicial ruling to give injunctions or administrative fines executory force; and (iii) cases in which interim daily penalties for non-compliance may be imposed until the measures ordered by the labour inspector have been given effect.20

In its 2006 General Survey on Labour Inspection, the Committee noted that: It is essential for the credibility and effectiveness of systems for the protection of workers for violations to be identified by national legislation and for the proceedings instituted or recommended by labour inspectors against employers guilty of violations to be sufficiently dissuasive and to make employers in general aware of the risks they run if they fail to meet their obligations. In order to be credible, it is important for penalties to be defined in proportion to the nature and gravity of the offence.21

Typically, the manner in which States deal with infractions of their domestic labour codes is either by way of administrative sanctions including fines or through criminal law. Beyond warnings, fines may be levied as sanctions; with this in mind the Committee of Experts has called on the Dominican Republic to “ensure that a method is devised to review the amount of the fines imposed so that they maintain their dissuasive 18 General Report (2008), n. 13, p. 442.  19 Id., p. 481. 20 Id., p. 442. 21 Labour Inspection, n. 6, p. 96.



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purpose despite any monetary fluctuations and that these penalties are effectively enforced”.22 In its General Survey, the Committee stated that it “would be regrettable in every respect if employers preferred to pay fines as a less costly alternative to taking the measures necessary to ensure compliance with the legal provisions on working conditions”.23 Such was the case until 2008 in Uruguay where the International Trade Union Confederation stated that in general “it is less costly for enterprises to pay off fines than to put an end to the violations, in particular on temporary construction sites”.24 The amount of fines and the way in which such fines are determined varies greatly among States: in Cambodia, Kazakhstan and Venezuela, fines are based on multiples of the daily reference wage, while in Guatemala “inspectors are empowered to impose penalties ranging from 2 to 12 times the minimum wage, depending on the gravity of the offence”.25 In Brazil where the State has also allowed for moral damages to be sought in instances of what it terms ‘slave labour’, the Government has noted that this, along with large fines, has been a “highly effective since they undermine the economic advantages of using slave labour”.26 Where recalcitrant or recitative employers are concerned, Belgium appears once again to take a novel approach, determining that the extra burden placed on the inspectorate by repeat visits should be borne by the employer. As the Committee of Experts relates, for the Belgium Government, “it is also morally unjustifiable that this additional capacity should be paid for by the community. Offenders should consequently be made to pay for additional inspections resulting from their unsocial attitude”.27 Beyond fines, administrative injunctions include the revoking of operating licences, suspension of operations, and closing of an enterprise are typical remedies of breaches of labour infractions. The closing of operations is not uncommon, especially where exploitation is severe: after the death, in 2006, of six Bolivians who had been trafficked into Argentina for the purposes of forced labour, a “programme of inspections was ordered, which resulted in the closure of 30 of the 54 workshops inspected because of the appalling working conditions”.28 22 General Report (2008), n. 13, p. 457. 23 Labour Inspection, n. 6, p. 96. 24 General Report (2008), n. 13, p. 494. 25 Labour Inspection, n. 6, p. 97. 26 General Report (2008), n. 13, p. 201. 27 Id., p. 445. 28 Id., p. 192.

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chapter five The Evolution of Forced or Compulsory Labour in Law

International labour standards just considered establish a line between what may be deemed legitimate labour and exploitive labour. Using this as a baseline, consideration can now turn to examining when such exploitive labour meets the threshold of forced labour. It should be recognised that three successive waves of international law have addressed forced or compulsory labour: international labour law, international human rights law, and international criminal law. Consideration now turns to examining the normative content of what constitutes, in international law, forced or compulsory labour. In essence this speaks to the content of the definition of forced or compulsory labour as set out in the 1930 Forced Labour Convention and its narrowing through the 1957 Abolition of Forced Labour Convention. But as we shall see, the built-in exceptions to the definition of forced or compulsory labour and the rather opaque interpretation which has been giving to both Conventions by the ILO Committee of Experts on the Application of Conventions and Recommendations means that an interpretation of what constitutes forced or compulsory labour is rather intricate, requiring the touch of an anorak. Before proceeding it is worthwhile considering the mandate of the Committee of Experts on the Application of the Conventions and Recom­ mendations, as its interpretation of the provisions of the ILO Conventions generally and the provisions related to forced or compulsory labour specifically are deemed, in the main, to be the most authoritative. The Com­mittee of Experts on the Application of the Conventions and Recom­ mendations has explained its terms of reference as such: to “provide an opportunity to clarify the scope and purpose of the provisions of the existing Conventions and, in the light of such clarification, to indicate the nature of the problems which now exist in regard to their implementation”.29 It has also considered its work “to examine from a purely legal point of view to what extent the countries which have ratified the Con­ ventions on forced labour give effect in their national legislation and practice to the obligations deriving therefrom”.30 The Committee is composed 29 International Labour Office, International Labour Conference, 46th Session, Item III, Report of the Committee of Experts on the Application of Conventions and Recom­ mendations, General Survey on the Reports concerning Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), Report III (Part IV), 1968, p. 180. 30 International Labour Office, International Labour Conference, Forced Labour, General Conclusions on the Report relating to the International Labour Conventions and



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of twenty eminent jurists, in the main professors of law, but also sitting and former judges of the International Court of Justice. They are appointed in their personal capacity, with reference to various geographic regions, cultures and legal tradition and are appointed by the Director-General of the International Labour Organisation for three-year terms, renewable to a limit of fifteen years. Returning to the application of the norm of forced or compulsory Labour, and considering its reading by the ILO Committee of Experts on the Application of Conventions and Recommendations, it may be said that, more often than not, such a reading has met the practice of States as opposed to the integrity of the norm itself. In large part this is so as the 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention provide a legal framework which, de facto, has been superseded by the International Convention on Civil and Political Rights. Despite being the ‘guardians’ of the 1930 and 1957 Convention, and therefore having no formal mandate to interpret the ICCPR, the Committee of Experts has felt free to interpret the provisions on forced or compulsory labour – and primarily the exceptions to what constitutes forced or compulsory labour – in such a manner as to diminish the integrity of the ILO instruments. As a result, instead of being a ‘treaty-monitoring body’ in the sense of human rights committees and ensuring that forced or compulsory labour is interpreted to the benefit of its human subjects, the Com­ mittee of Experts has facilitated and legitimised an expansive reading of the exceptions, thus allowing for the wider use of forced or compulsory labour. To embark on a consideration of the evolution of forced or compulsory labour, one must first hark back to our considerations of slavery, as both it and forced or compulsory labour arise from the same source. 1926 Slavery Convention Like slavery before it, forced labour came to be regulated internationally during the League of Nations era. The starting point for the consideration of forced labour within the domain of international law is the Treaty of Versailles and the establishment of the Mandates system under the auspices of the League of Nations. The Covenant of the League of Nations required that Member States holding Mandates “secure and maintain fair Recommendations dealing with Forced Labour and Compulsion to Labour, 1957 (No. 105), Part 3, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part IV, 1962, p. 194.

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and humane conditions of labour”; while a number of Mandates prohibited “all forms of forced or compulsory labour, except for essential public works and services”.31 In fact, the move towards establishing a grander, more general, prohibition against forced labour resulted from the League of Nations placing the issue of slavery on its agenda. In 1924, Temporary Slavery Commission included as a member, Harold Grimshaw, the Repre­ sentative of the International Labour Organisation, who wrote that, on the whole: where the measures taken to abolish slavery and the slave trade have [been] effectively enforced, they have resulted in the gradual disappearance of these evils, but that on the other hand the servile forms of labour which have frequently replaced slave conditions have in some cases led to effects as disastrous, or even more disastrous than those of slavery itself.32

With this in mind, the Temporary Slavery Commission called for an international convention on slavery which would include the “prohibition of forced or compulsory labour, except for essential public works and services and in return for adequate remuneration”.33 The call for an international instrument was heard by the British Government whose 1925 Draft Protocol included the following: while recognising “the grave evils that may result from the employment of forced labour”, admitted the possibility of using such labour for essential public works, though requiring – pejoratively – that “all necessary precautions, particularly where the labourers belong to the less advanced races, to prevent conditions analogous to those of slavery from resulting from such employment”.34 However, the provisions on forced labour proved to be the 31 International Labour Office, International Labour Conference, Forced Labour: Report and Draft Questionnaire, Twelve Session, 1929, p. 8. The Mandate regime transferred the colonial possession of the Central Powers to the victors of the First World War. The League of Nations endorsed the transfer of the following mandated territories: German New Guinea (to: United Kingdom); German Samoa (New Zealand); Kamerun (re: Cameron) (United Kingdom); Mesopotamia (United Kingdom); Nauru, (Australia); Palestine (United Kingdom); Ruanda-Urundi (Belgium); South Pacific Mandate (Japan); South-West Africa (South Africa); Syria (France); Tanganyika (United Kingdom); and Togoland (United Kingdom). 32 League of Nations, Temporary Slavery Commission, Memorandum by Mr. H.A. Grimshaw, (Representative of the International Labour Organisation) on the Question of Slavery, CTE 31, 15 April 1925, p. 110. 33 League of Nations, Temporary Slavery Commission, Letter from the Chairman of the Commission to the President of the Council and Report of the Commission, 1925, A.19.1925. VI, 25 July 1925, p. 2. 34 League of Nations, Annex I: Slavery: Draft Resolution and Protocol, Official Journal: Record of the Sixth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Political Questions) Special Supplement No. 39, 14 September 1925, p. 41.



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most contentious during the negotiations of what would become the 1926 Slavery Convention, as those sitting down to negotiate saw forced labour as essential to European colonialism and its ‘civilising’ mission. The Rep­ resentative of Portugal went so far as to called for the removal of the forced labour from consideration, seeing it as sending the wrong message to the indigenous populations of the colonies, as it suggested “that its prohi­bi­ tions implies for them a right to idleness”.35 Despite this, provisions related to forced labour did make their way into the 1926 Slavery Convention, though in very limited scope and application. In considering the scope and the application of the content of the provisions touching on forced labour which would make their way into a legal instrument, the negotiators agreed that they would be guided by the following principles: that forced labour “should generally speaking be only for essential public services”; that it should only be used for private ends “for exceptional reasons”; and that it must never be allowed to degenerate into slavery and must be adequately rewarded”.36 With this in mind, what emerged as Article 5 of the 1926 Slavery Convention which “represents a definite attempt to deal with the question of forced labour in a general international agreement”.37 Article 5 of the 1926 Slavery Convention reads: The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. It is agreed that:   (1)  Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes.  (2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall

35 League of Nations, Sixth Committee, Note Submitted to the First Sub-Committee of the Sixth Committee by General Freire d’Andrade, A.VI/S.C.1/2.1925, 11 September 1925, p. 3; as found in Folder R.67.D.46214 entitled La question de l’esclavage: Discussions, y relatives, de la VIe Assembleé, 1925, p. 3. 36 League of Nations, Sixth Committee, First Sub-Committee, Article 3, Draft Protocol, Article 3, Principles laid down by Viscount Cecil, A.VI/S.C.1/Drafting Committee/7, as found at id. 37 League of Nations, Slavery Convention: Report presented to the Assembly by the Sixth Committee, A.104.1926.VI, as found in League of Nations, Publications of the League of Nations, VI. B. Slavery 1926, VI. B. 5, 24 September 1926, p. 3.

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chapter five endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence.  (3) In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.

In these first provisions to appear in international law regulating forced labour, we witness the same obligations attached to ending forced labour for private ends – in the convoluted language of the 1926 Convention: ‘forced labour for other than public purposes’ – as those set out for slavery: that States “shall endeavour progressively and as soon as possible” to end the practice. While no limitations were placed on forced labour for public ends, for private purposes, forced labour required adequate remuneration, and to transpire in a geographic areas near to the the labourers’ habitual residence. Despite the fact that States were unwilling to place provisions within the 1926 Slavery Convention regulating forced labour for public ends, they did pass a League of Nations Assembly resolution which stated that “forced labour for public purposes is sometimes necessary”, but that as “as a general rule, it should not be resorted to unless it is impossible to obtain voluntary labour and that it should receive adequate remuneration”.38 As it was decided that it was not the providence of those negotiating the 1926 Convention to regulate forced labour, the Assembly passed a second resolution requesting the International Labour Office to take over the consideration of forced labour.39 While the provisions of Article 5 of the 1926 Slavery Convention would be superseded by future instruments, the one item of substance to emerge from the negotiations of the 1926 Convention was the designation of the term forced labour as also including ‘compulsory’ labour, as it was pointed out that a distinction could be made between forced labour “which might mean that which the courts may condemn certain criminals under common law” and compulsory labour which was more in tune with work for

38 League of Nations, Slavery Convention, Resolutions adopted by the Assembly at its meeting held on September 25th, 1926, A.123.1926.VI, 25 September 1926, as found in League of Nations, Publications of the League of Nations, VI.B.Slavery.1926. 39 League of Nations, Slavery Convention: Report of the Sixth Committee: Resolution, League of Nations Official Journal (Special Supplement 44) Records of the Seventh Ordinary Assembly: Text of Debates, Seventeenth Plenary Meeting, 25 September 1926, p. 132.



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public purposes.40 This distinction holds to this day, as in international legal instruments we speak of ‘forced or compulsory labour’. 1930 Forced Labour Convention The International Labour Organisation took hold of the issue of forced or compulsory labour when its Governing Body placed the issue on the agenda for the ILO’s 1929 General Conference. The approach of the ILO was, not unlike the League of Nations, within a colonial mindset which sought to consider the question as “one which affects for the most part, though not exclusively, the working conditions of subject peoples”; and thus created the Committee of Experts on Native Labour to consider the issue.41 The Secretariat of the ILO in conjunction with the Committee of Experts determined that, from the legislation in force domestically and the opinions of experts, principles could be deduced which would allow for the regulation of forced labour where it still existed “with the triple object of removing from it any conditions which still render it ‘analogous to slavery’, of avoiding the evils associated with it, and of providing for its abolition”.42 These principles, it was concluded, were such that they could be included in a legal instrument. During the negotiation process of what would become the 1930 Forced Labour Convention (ILO Convention Number 29), the Workers’ Members of the Committee of Forced Labour (the workers, along with governments and employers make up the ILO’s tripartite system of governance) objected to the substance of the draft Convention, as they noted that though it professed to have the aim of suppressing forced labour, in fact, it tended “towards a kind of codification of forced labour”.43 There is merit in this assessment, as the bulk of the 1930 Forced Labour Convention sought to regulate rather than suppress forced labour. That said, most of the 1930 Convention is made of provisions meant to be applicable during a transition period which, as a result of the passing of time, must be considered as being desuetude. 40 League of Nations, Sixth Committee, Amendments proposed by the Portuguese Delegation to the Draft Protocol submitted by Viscount Cecil, A.VI/S.C.1/3.1925, 11 September 1925, as found in id., p. 5. 41 International Labour Conference, 12th Session, Item III, Forced Labour: Report and Draft Questionnaire, 1929, p. 1. 42 Id., p. 263. 43 International Labour Conference, 14th Session, Item I, Minority Report of the Workers Members of the Committee on Forced Labour, Forced Labour, 1930, p. 46.

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This is so, as the 1930 Forced Labour Convention obligated State Parties: “to suppress the use of forced or compulsory labour in all its forms within the shortest possible period”. That requirement was given impetuses by a transition period, where, for public purposes, forced or compulsory labour was allowed, though regulated by guarantees which make up the bulk of the provisions of the Convention. Thus, for example, only able-bodied males of between eighteen and forty-five years of age could be used for no more than sixty days a year, working for the same hours and pay as prevailing for voluntary work. However, such regulations of forced or compulsory labour are deemed to no longer be applicable by the ILO Committee of Experts on the Application of Conventions and Recommendations. In its 2007 Report, the Committee of Experts determined “that the use of any form of forced or compulsory labour falling within the scope of the Convention as defined by Article 2 may no longer be justified by invoking observance” of the transitional provisions; that is of Articles 1(2) and Article 3 to 24 of the 1930 Forced Labour Convention. In other words, but for Article 1(1) obliging States to end forced or compulsory labour in all its forms, the definition as set out in Article 2, Article 25 which requires that illegal exaction of forced or compulsory labour shall be punished as a penal offence”, and the final provisions related to the ratification and denunciation; all other provisions of the 1930 Forced Labour Convention are to be considered no longer operative, they are dead-letter law. The Committee of Experts has stated that “since the Convention adopted in 1930 calls for the suppression of forced or compulsory labour within the shortest possible period, it appears to be no longer possible to invoke these transitional provisions to the detriment of its main purpose. For a State to now be seen to rely on these transitional provisions would appear to disregard their transitional function and contradict the spirit of the Convention”.44 Article 2(1) – Forced or Compulsory Labour What remains of the substance of the 1930 Forced Labour Convention is, in the main, like the 1926 Slavery Convention, the definition. In this case, the definition of forced or compulsory labour – which remains to this day

44 International Labour Conference, 96th Session, Item III, Report of the Committee of Experts on the Application of Conventions and Recommendations, Eradication of Forced Labour, General Survey concerning Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), Report III (Part 1B), 2007, p. 6.



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the recognised definition in international law – is found at Article 2(1) of the Forced Labour Convention, and reads: ‘forced or compulsory labour’ shall mean all work or service which is exacted under menace of any penalty for its non-performance and for which the worker concerned does not offer himself voluntarily.

Also included, at Article 2(2), are exceptions to the definition which “remain entirely outside the scope of this Convention”.45 Before examining these exceptions, consideration turns to the substance of the definition as set out at Article 2(1). During the negotiation process it was agreed that the term ‘penalty’ was not to be interpreted “in a strict sense to mean punishment inflicted by a court of justice”, but instead that it was to mean “any penalty or punishment, inflicted by persons or body whatever”. That said, the tri-party Committee on Forced Labour did reject a proposed amendment that the definition should include the words ‘or obligation’ after ‘penalty’, as this was deemed as “being possibly too wide”.46 In the Report to the 1930 International Labour Conference – the body which would adopt the 1930 Convention – the Worker’s Group proposed a further amendment, seeking to include after the phrase ‘under the menace of any penalty’ the words, ‘or the loss of any rights or privileges’. While this proposal was ultimately withdrawn, it was done so as it was deemed not necessary: “after it had been shown that the expression ‘under the menace of penalty’ would cover the contingencies which the amendment contemplated”.47 Thus, the phrase ‘under the menace of any penalty’ should be read to include the loss of any rights or privileges. What we should take from this is that a penalty need not be a legal penalty, but that what amounts to a de facto penalty imposed by an employer would also come into conflict with the definition. Beyond the negotiation process, the Committee of Experts on the Application of the Conventions and Recommendations has, on the basis of the examination of State reports, fleshed out more of the substance of the definition of ‘forced or compulsory labour’. Continuing with the provisions of the definition ‘under the menace of any penalty’, the Committee of Experts moved to provide an example of what ‘the loss of rights or privileges’ might entail. The Committee stated that “where a person who seeks

45 General Survey 1968, n. 29, p. 184. 46 International Labour Conference, 14th Session, Item I, Report of the Committee on Forced Labour to the Twelfth Session of the Conference, Forced Labour, 1930, p. 11. 47 Id., p. 691.

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to terminate their employment in contravention of legislative restrictions may not be taken into employment by another […], being thus impelled to continue in particular work under the menace of being deprived of the right to free choice of employment”, will constitute a breach of the 1930 Forced Labour Convention.48 In its 2007 Report, the Committee further elaborated on the notion of ‘the loss of rights or privileges’, stating that this might transpire, “for instance, where persons who refuse to perform voluntary labour may lose certain rights, advantages or privileges” such as “pro­ motion, transfer, access to new employment, the acquisition of certain consumer goods, housing or participation in university programmes”.49 Where international jurisprudence has developed with regard to the phrase ‘under the menace of any penalty’, the Inter-American Court of Human Rights in its 2006 Ituango Massacres v. Colombia case related to State complicity in what the Inter-American Commission on Human Rights termed armed raids by paramilitary groups which assassinated “defenseless civilians, robbing others of their property and causing terror and displacement”.50 In this case, the Inter-American Court, in considering forced labour exacted from more than a dozen herdsmen who drove about one-thousand head of cattle at the demand of paramilitaries, stated that ‘the menace of a penalty’ in this case was in “its most extreme form, which is a direct and implicit threat of physical violence or death addressed at the victim or his next of kin”. In making this determination the Court held that the phrase ‘menace of a penalty’ “can consist in the real and actual presence of a threat, which can assume different forms and degrees, of which the most extreme are those that imply coercion, physical violence, isolation or confinement, or the threat to kill the victim or his next of kin”.51 In the Siliadin v France, the European Court of Human Rights, in considering a Togolese girl who had been held in domestic servitude, determined that she had been “at the least, subjected to forced labour”. Although the Court noted that Siwa-Akofa Siliadin “was not threatened by a ‘penalty’, the fact remains that she was in an equivalent situation in terms of the perceived seriousness of the threat”. That is to say that her fear of arrest by the police as a sans-papier, having been ‘nurtured’ by couple 48 General Survey 1968, n. 29, p. 187. 49 General Survey 2007, n. 44, p. 20. 50 Organisation of American States, Inter-American Court of Human Rights, Ituango Massacres v. Colombia, Series C, No. 148, 1 July 2006, p. 2. See more generally: International Labour Organisation, International Labour Office, Forced Labour and Trafficking: Casebook of Court Decisions, 2009. 51 Ituango Massacres v. Colombia, n. 50, p. 79.



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who violated her rights, was deemed to meet the threshold of labour compelled under the menace of a penalty.52 Moving on to consider other constituent parts of the definition of forced or compulsory labour, the element of ‘voluntary offer of labour’, should be understood as hinging on consent.53 The ILO Committee of Experts determined that “account must be taken of the legislative and practical framework which guarantees or limits that freedom”. A worker’s freedom to offer himself or herself voluntarily, the Committee of Experts notes, requires that “the workers’ right to free choice of employment remains inalienable” and, as such, “statutory provisions preventing termination of employment of indefinite duration (or very long duration) upon notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention”. Likewise, the requirement “to serve beyond the expiry of a contract of fixed duration” would be incompatible with the definition of forced or compulsory labour.54 In essence, the Committee has determined that “the worker’s right to free choice of employment remains inalienable”, as such the freedom to leave an employer cannot be interfered with so as to vitiate the workers’ consent to labour. For the InterAmerican Court of Human Rights, the lack of voluntary nature of the work “consists in the absence of consent or free choice when the situation of forced labor begins or continues. This can occur for different reasons, such as illegal deprivation of liberty, deception or psychological coercion”.55 Put in these terms, we pick up the observation of the Committee of Experts that the element of ‘voluntary offer of labour’ overlaps with that of ‘menace of any penalty’, in as much as freedom to work cannot exist under threat.56 While acknowledging that laws may be in place with nullify consent, the Committee also noted that a worker’s freedom to ‘offer himself voluntarily’ may be impaired by means of “indirect coercion”, where it results “from an employer’s practice, e.g. where migrant workers are induced by deceit, false promises and retention of identity documents 52 Council of Europe, European Court of Human Rights, Siliadin v France, Application no. 73316/01, 26 July 2005, p. 37. 53 International Labour Conference, 93rd Session, Report of the Director-General, Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, Report I(B), 2005, 6. 54 General Survey 2007, n. 44, p. 20. 55 Ituango Massacres v. Colombia, n. 50, p. 79. In the case at hand, the “herdsmen understood that they were compelled to perform the work imposed on them, because, if they did not agree, they could be murdered in the same way as several other villagers”. Id., p. 80. 56 General Survey 2007, n. 44, p. 20.

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or forced to remain at the disposal of an employer; such practices represent a clear violation of the Convention”.57 In 2011, the Committee of Experts noted in the case of Algeria, where, upon completing a course in higher education, a person was required to provide from one to four years of civic service in order to be able to “obtain employment or exercise a trade”, such persons “discharge this service under a menace because, in the event of refusal, they are denied access to any professional self-employed activity or to any employment in the private sector, as a result of which civic service falls within the concept of compulsory labour within the meaning of Article 2(1) of the Convention”.58 Turning to the overarching element of the definition and what is to be understood by ‘work or service’, the Committee states that these are to be distinguished from obligations requiring both education and training, including vocational training. As for education, the Committee considers that “compulsory education is recognised in various international instruments as the means of securing the right to education”.59 Where vocational training is concerned, the Committee sees in it, an “analogy with and considered as an extension of compulsory general education”, which thus “does not constitute compulsory work or service”.60 While recognising that vocational training will often include some practical work, this should not fall under the purview of the Convention though whether it does, will only be possible “with reference to the different aspects of the systematic organisation” of the scheme. In sum, in its first General Survey of forced or compulsory labour issued in 1961, the Committee of Experts on the Application of the Conventions and Recommendations paraphrased its understanding of the definition, as set out in Article 2(1) of the 1930 Forced Labour Convention: “work done under threat of some kind of punishment, and work for which individuals do not offer themselves of their own free will”.61 While the various insights 57 Id. 58 International Labour Office, International Labour Conference, Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 1A), One-hundredth Session, 2011, p. 217. 59 International Labour Conference, 65th Session, Item III, Report of the Committee of Experts on the Application of Conventions and Recommendations, General Survey on the Reports relating to Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), Report III (Part 4B), 1979, p. 8. 60 General Survey 1968, n. 29, p. 187. 61 General Conclusions 1962, n. 30, p. 195. Where forced labour within the Council of Europe is concerned, the European Court of Human Rights has dealt with the issue in its rather elitist manifestation, as “the leading



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of the Committee of Experts help in giving flesh to the bare bones of the definition of forced or compulsory labour, the understanding just proffered from the Committee gets to the essence of what should be understood as constituting forced or compulsory labour.62 With this in mind, the Committee of Experts has pointed to a number of instances in which it considers that State legislation falls foul of the provisions related to forced or compulsory labour. Thus, Kenya’s 1997 Chief’s Authority Act institutes a corvée, whereby “able-bodied male persons between 18 and 50 years of age may be required to perform any work or service in connection with the conservation of natural resources for up to 60 days in any year”. For its part, the Committee expressed “the firm hope […] legislation will be brought into conformity with the Convention”.63 The Committee of Experts also noted the case of Peru case on Article 4 is Van der Mussele, in which a lawyer complained about the obligation to provide free legal assistance to poor clients” (R.A. Lawson and H.G. Schermers, Leading Cases of the European Court of Human Rights, 1999, p. xx). Two items are worth noting in that case: 1) Recognition that in dealing with forced labour both the European Human Rights Convention and the International Covenant on Civil and Political Rights “based themselves, to a large extent” on the 1930 Forced Labour Convention. As for the European Court of Human Rights, it “regards this definition [re: the 1930 definition] as the starting-point for the interpretation of Article 4” of the European Convention dealing with forced labour (See Council of Europe, European Court of Human Rights, Van der Mussele v Belgium Application no. 8919/80, 23 November 1983, p. 12 and Council of Europe, European Court of Human Rights, Stummer v Austria, Application no. 37452/02, 7 July 2011, p. 30. 2) While using the 1930 Forced Labour Convention as its starting point, the European Court of Human Rights has read into its provisions of forced labour a proportionality test whereby, in the case of Van der Mussele, the benefits gained in becoming a lawyer outweighed the obligation to conduct legal aid work. The Court noted: The Court would recall that Mr. Van der Mussele had voluntarily entered the profession of avocat with knowledge of the practice complained of. This being so, a considerable and unreasonable imbalance between the aim pursued - to qualify as an avocat – and the obligations undertaken in order to achieve that aim would alone be capable of warranting the conclusion that the services exacted of Mr. Van der Mussele in relation to legal aid were compulsory despite his consent. No such imbalance is disclosed by the evidence before the Court, notwithstanding the lack of remuneration and of reimbursement of expenses which in itself is far from satisfactory. (See p. 18.) 62 Note also the Council of Europe, European Court of Human Rights, Siliadin v France, Application no. 73316/01, 26 July 2005, p. 36; in which the European Court of Human Rights stated that forced or compulsory labour “brings to mind the idea of physical or mental constraint. What there has to be is work ‘exacted … under the menace of any penalty’ and also performed against the will of the person concerned, that is work for which he ‘has not offered himself voluntarily’”. 63 Report of the Committee of Experts 2011, n. 58, p. 235.

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where members of indigenous communities “are victims of forced labour practices (Slavery, debt bondage and serfdom), particularly in sectors such as agriculture, stock-raising and forestry”.64 In neighbouring Bolivia, the Inter-American Commission has noted, as mentioned earlier, similar ‘captive communities’, wherein: one observes that the captive communities live in conditions characterized, in general terms, by the excessive physical labor to which their members are subjected; they are Guaraní indigenous persons of all ages and conditions, including boys, girls, adolescents, older adults, and persons with disabilities. They live under the threat of corporal punishment and frequently must work to satisfy debts that the estate owners force them to contract in an irregular and fraudulent fashion. This situation results in relations of vertical domination, in some cases paternalistic, in which the Guaraní workers exist subject to the will of the boss.65

Article 2(2) – The Exceptions to Forced or Compulsory Labour Turning now to the previously mentioned exceptions set out in Article 2(2) of the 1930 Forced Labour Convention; the Committee of Experts noted, in 1979, that “the Convention provides specifically for the exemption of certain forms of compulsory service. These forms, which would otherwise have fallen within the general definition of ‘forced or compulsory labour’, are thus excluded from the scope of the Convention”.66 Here then is an acknowledgement that what is to follow, those provisions of Article 2(2), are in fact cases of forced or compulsory labour yet, despite this, are excluded from the 1930 definition of forced or compulsory labour. Article 2(2), which constitutes part of the definition of ‘forced or compulsory labour’, reads: Nevertheless, for the purposes of this Convention the term ‘forced or compulsory labour’ shall not include:   (a) Any work or service exacted in virtue of compulsory military service laws for work of a purely military character;  (b) Any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;

64 Id., p. 217. 65 Organization of American States, Inter-American Commission on Human Rights, Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco, OEA/Ser.L/V/II. Doc. 58, 24 December 2009, p. 27. 66 General Survey 1979, n. 59, pp. 9–10.



forced or compulsory labour225  (c) Any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;  (d) Any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;  (e) Minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.

The justification for these exemptions was provided by the Rapporteur during his presentation of the Report of the Committee on Forced Labour to the 1930 General Conference of the International Labour Organisation. In tabling the draft Convention for adoption, the Rapporteur stated that, with regard to Article 2, “it was right that this Article should be of a very sweeping character and that we should include everything we could in the terms of the definition; but this has the inevitable disadvantage that we cannot make so broad and sweeping a definition without subsequently making certain exceptions”.67 At the regional level, the European Court of Human Rights has noted the exceptions do not limit the prohibition against forced or compulsory labour but delimit its content: “for it forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” is not to include. The European Court goes on to say that the exceptions serve “as an aid to the interpretation” of forced or compulsory labours, as despite their diversity, the various exceptions “are grounded on the governing ideas of general interest, social solidarity and what is normal in the ordinary course of affairs”.68

67 International Labour Conference, 14th Session, Volume I – First and Second Part, Proceedings, Fifteenth Sitting, 25 June 1930, 1930 p. 269. 68 Council of Europe, European Court of Human Rights, Stummer v Austria, Application no. 37452/02, 7 July 2011, p. 31.

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Article 2(2)(a) – Military Service Considering each of these exemptions in turn, Article 2(2)(a) of the 1930 Forced Labour Convention related to compulsory military service reads that “the term ‘forced or compulsory labour’ shall not include [… any] work or service exacted in virtue of compulsory military service laws for work of a purely military character’. The Committee on Forced Labour, which drafted the 1930 Forced Labour Convention, was considered to have “entered upon one of the most difficult phases of its work” in its consideration of military service. While the Worker’s Group called for the deletion of this provision, some States wanted no limit on the type of labour which conscripts would be required to undertake as this was, “a question of national defence, […] an essential matter of sovereignty which could not properly be limited or determined by an international Convention”. While this may have been the diplomatic justification for retaining such scope in compulsory military service, what lay behind this wish was the fact that “labour of men called up under compulsory military service laws are employed for the execution of public works in certain colonial territories”.69 However, the resulting compromise – which passed by the narrowest of margins: 19 votes to 18 – was that forced or compulsory labour would be allowed within the military, but only for work of ‘a purely military character’.70 In considering the issue of military service, the Committee of Experts on the Application of the Conventions and Recommendations spoke to some of the discussions which transpired leading up to the adoption of Article 2(2)(a), stating that with regard to military conscripts labouring on public works: “to sanction this form of labour implicitly by excluding it from the scope of the Convention would be to sanction a system which ran counter to the avowed purpose of the Convention – namely the abolition of forced or compulsory labour in all its forms”. The Committee went on to emphasise that States agreed “that the reason and justification for

69 International Labour Conference, 14th Session, 1930, Volume I – First and Second Part, Annex V, Part 4) Report of the Committee on Forced Labour, p. 691. 70 Id., p. 692. See also p. 693, where it notes that disagreement over the provisions of Article 2(2) were also manifest in the overall adoption of Article 2, which was also agreed upon by a majority of one vote. Note that by 1968, States – through the ILO Conference – had “rejected the practice of making young people participate in development activities as part of their compulsory military service or instead of it, as being compatible with the forced labour Convention”. General Survey 1968, n. 29, p. 22. Note further discussion in this Chapter touching on Article 1(b) of the 1957 Abolition of Forced Labour Convention.



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compulsory military service was the necessity for national defence, and that no such reason of justification existed for imposing compulsory service obligations for the execution of public works”.71 With this in mind, the Committee of Experts called on both Benin and Congo to bring legislation “into conformity with those of the [1930] Convention”, where Article 2(2) (a) is concerned. With regard to Benin, the Committee considered that, inter alia, its legislation which requires conscripts to perform “work of national construction” fails the test of “work of a purely military characters and can therefore be considered as forced or compulsory labour within the meaning of the Convention”.72 As for the Congo, while the Committee acknowledged the Congolese Government’s statement that the provisions had fallen into disuse, it called on the Brazzaville Administration to “amend or repeal this Act”, which required conscripts to the army to perform “work related to national development”.73 In 1966, States renegotiated the parameters of forced or compulsory labour by renegotiating the exceptions to what was to constitute forced or compulsory labour. They did so within the context of the negotiations of the 1966 International Covenant on Civil and Political Rights (ICCPR), where they accepted the definition, while taking exception to the exceptions. As the United Nations Secretary-General noted in annotating the draft International Covenant on Civil and Political Rights in 1955: “this definition, especially when it was read in light of the exceptions, was not considered entirely satisfactory for inclusion in the covenant”.74 The 1966 United Nations International Covenant on Civil and Political Rights, for all the praise it has received for constituting a foundation of international human rights law, through its expansion of the exceptions as first set out in the 1930 Forced Labour Convention, has – in fact and in law – been a step backwards for human rights protection against forced or compulsory labour. 71 General Survey 1968, n. 29, p. 188. 72 Report of the Committee of Experts 2011, n. 58, p. 221. 73 Id., p. 224. 74 United Nations, General Assembly, Annotations on the text of the draft International Covenant on Human Rights (Prepared by the Secretary-General), 1 July 1995, UN Doc. A/2929p; as found in General Assembly, Official Records, Agenda item 28 (Part II) Annexes, Tenth Session, 1955, p. 33. Note that the provisions of the International Covenant on Civil and Political Rights touching on forced labour mirror those previously adopted in the 1950 European Human Rights Convention at Article 4; and are reproduced mutatis mutandis at Article 11 of the 1999 Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

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The reworking of the exceptions is manifest in Article 8(3)(c) of the Covenant which establishes that forced or compulsory labour does not include: (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;

Here, as with other modification of the exceptions to forced or compulsory labour which have taken place in the text of Article 8(3) of the International Covenant, it may be said that, as a matter of law, these override, lex posterior legi priori, the provisions of Article 2(2) of the 1930 Convention, for those States which are party to both the Covenant and the 1930 Forced Labour Convention. While the term ‘work’ has been dropped from the provision of military service in the ICCPR with little effect, the loss of the word purely within the phrase ‘work of a purely military character’ is notable in its absence. Of further note was the felt need to include the provision touching on conscientious objectors, it being acknowledged that in certain States where conscientious objectors were released from military obligations, “they were subjected to treatment inconsistent with human dignity”.75 While the 1930 Convention is silent on conscientious objectors, the ILO Committee of Experts on the Application of the Conventions noted in 2007 that the 1930 Convention provides for a further exception where conscientious objectors are concerned, in that their alternative service was meant to fall within the overall framework of military services as being excluded from the definition of forced or compulsory labour. The Com­ mittee of Experts accepted “the exemption of conscientious objectors from compulsory military service, coupled with an obligation to perform an alternative service, is therefore a privilege granted to individuals on request, in acknowledgement of freedom of conscience”.76 The justification was based on the assessment of the Committee that “conscientious objectors were in a more favourable position than in countries where their status is not recognised and where refusal to wear a uniform is considered an offence”, for which the alternative is, forced penal labour.77 However, as 75 United Nations, General Assembly, Annotations on the text of the draft International Covenant on Human Rights (Prepared by the Secretary-General), 1 July 1995, UN Doc. A/2929p; as found in General Assembly, Official Records, Agenda item 28 (Part II) Annexes, Tenth Session, 1955, p. 33. 76 General Survey 2007, n. 44, p. 6. Emphasis added. 77 General Conclusions 1962, n. 30, p. 206.



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the monitoring body of the International Covenant on Civil and Political Rights, the Human Rights Committee, has determined, conscientious objectors fall within the protection of the right of freedom of conscience and, as such individuals should not be tried for their belief. That said, the UN Human Rights Committee has noted that “it is in principle possible, and in practice common, to conceive alternatives to compulsory military service that do not erode the basis of the principle of universal conscription but render equivalent social good and make equivalent demands on the individual, eliminating unfair disparities between those engaged in compulsory military service and those in alternative service”.78 When considering the overall exception touching on military service, it is clear that the Committee of Experts has expanded the 1930 exception to forced or compulsory labour to include alternative service, in lieu of military service. Article 2(2)(b) and (e) – Civic Obligations The second exception to the definition of forced or compulsory labour found in the 1930 Forced Labour Convention at Article 2(2)(b) is: Any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;

To this provision may be added that of Article 2(2)(e): Minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.

This is so, as noted by the UN Secretary-General in his annotation of the draft ICCPR, “that it was not necessary to mention ‘minor communal services’ since the term ‘normal civic obligations’ was a much broader term and would include the former”. The Secretary-General prefaced this observation by noting that “the provision concerning ‘minor communal 78 United Nations, Human Rights Committee, Yeo-Bum Yoon and Myung-Jin Choi v. Republic of Korea, UN Doc. CCPR/C/88/D/1321-1322/2004, 23 January 2007, para 8.4. Note also Council of Europe, European Court of Human Rights, Bayatyan v Armenia, Application no. 23459/03, 7 July 2011, at para. 110; wherein the Court goes further, stating that it will deal with conscientious objectors “solely under Article 9” (Freedom of Thought, Conscience and Religion), and that such issues “should no longer be read in conjunction” with Article 4 (dealing with forced or compulsory labour).

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services’ was meant to apply to Non-Self-Governing Territories [re: colonies], while that relating to ‘normal civic obligations’ applied to sovereign States. It was contended, however that the distinction was unacceptable and should not be perpetuated in the covenant”.79 As such, the only provision which appears in the 1966 Covenant is that of Article 8(3)(c) which reads: “(iv) Any work or service which forms part of normal civil obligations”. This provision, as the ILO Committee of Experts relates, within the context of considering the 1930 Forced Labour Convention, entails three types of obligations “mentioned in the Convention as exceptions from its scope, namely; compulsory military service, work or service in case of emergency and ‘minor communal services’”.80 In previous General Reports, the Committee of Experts had also mentioned as falling within the scope of ‘normal civic obligations’, where prescribed by law “jury service, the obligation to assist a person in danger, or a representative of the public law and order and, in certain cases, the obligation to vote and to participate in an electoral college”.81 For its part, the ILO still considers the provisions of Article 2(2)(e), related to ‘minor communal services’ to be operative and provides ‘criteria which determine the limits of this exception”.82 Further, 79 United Nations, General Assembly, Annotations on the text of the draft International Covenant on Human Rights (Prepared by the Secretary-General), 1 July 1995, UN Doc. A/2929p; as found in General Assembly, Official Records, Agenda item 28 (Part II) Annexes, Tenth Session, 1955, p. 34. Note Timmerman v The Netherlands and Silva et al. v Zambia, two cases considered by the United Nations Human Rights Committee but declared “inadmissible as unsubstantiated”. See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2005, p. 208. 80 General Survey 2007, n. 44, p. 24. 81 General Conclusions 1962, n. 30, p. 206. As pointed out in D.J Harris et als. Law of the European Convention on Human Rights, 2009, p. 118; the European Court of Human Rights has determined that the following fall within the purview of ‘normal civic obligations; “obligations imposed by the state upon a lessor to arrange for the maintenance of his building, upon a holder of shooting rights to participate in the gassing of foxholes, and upon an employer to deduct taxes from an employee’s income”. 82 General Survey 2007, n. 44, p. 33. The criteria are: the services must be ‘minor services’, i.e. relate primarily to maintenance work and, in exceptional cases, to the erection of certain buildings intended to improve the social conditions of the population of the community itself (a small school, a medical consultation and treatment room, etc.); the services must be ‘communal services’ performed ‘in the direct interest of the community’, and not relate to the execution of works intended to benefit a wider group; the ‘members of the community’ (i.e. the community which has to perform the services) or their ‘direct’ representative (e.g. the village council) must ‘have the right to be consulted in regard to the need for such services’.



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the approach of the Committee of Experts appears to maintain the distinctions of the past, noting that ‘minor services’: might also include works connected with village cleanliness, sanitation, the maintenance of paths and tracks, of watering places, cemeteries in the immediate vicinity of the communities concerned, village night-watching, the clearance of silt in small irrigation channels and streams of purely local interest, etc.83

Article 2(2)(c) – Penal Labour The third exception as set out in Article 2(2) of the 1930 Forced Labour Convention reads: (c) Any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations.

The ILO Committee of Experts on the Application of the Conventions and Recommendations has noted that “unlike the other exceptions provided for in the Convention which concern cases of calling up persons for performing particular work or service, this exception relates to the consequences of punishment imposed as a result of the conduct of an individual”.84 In its 1968 General Report, the Committee of Experts sought to emphasise that “prison labour may be imposed only as a consequence of a conviction in a court of law”, as this was deemed as an important guarantee “against the administration of the penal system being diverted from its true course by coming to be considered as a means of meeting labour requirements”. The Committee of Experts went on to say that it “is significant that the imposition of labour by non-judicial authorities frequently relates to vagrancy laws or analogous legislation designed to enforce an obligation to work”.85 This understanding should be set against the provisions of Article 8(3) of the International Covenant on Civil and Political Rights which appears to be at variance with the understanding of the Committee of Experts, with regard to penal labour only being excempt where it is a consequence of a conviction. Article 8(3) reads, in part:

83 Id., p. 34. 84 Id., p. 24. 85 General Survey 1968, n. 29, p. 190.

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chapter five (a) No one shall be required to perform forced or compulsory labour (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court. (c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:    (i) Any work or service, not referred to in sub-paragraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention.

Thus we note that within the ICCPR, prison labour has been dealt with in two separate manners, first through the provisions of Article 8(3)(b), which establishes that the prohibition against forced or compulsory labour will not preclude the imposition of hard labour subject to a sentence determined by a competent court. Having accepted this possibility of hard labour as a means of punishment, the ICCPR provides further exceptions to what may be deemed forced or compulsory labour, by recognising that such forced or compulsory labour may go beyond simply that resulting from the ‘consequence of a conviction in a court of law’, as set out in the 1930 Forced Labour Convention. This is so, as the ICCPR allows for normal work to be exempt from the purview of the Covenant in situations where a person is not convicted, but is simply detained “in consequence of a lawful order of a court, or of a person during conditional release from such detention”. Thus, the ICCPR provides less protection than the 1930 Forced Labour Convention by exempting the definition of forced or compulsory labour from applying in situations short of conviction, be it through lawful order of a court or during conditional release.86 In the annotation of the ICCPR by the UN Secretary-General, he pointed to a rather wide interpretation of what is deemed ‘detention’ as this is understood to cover “all forms of compulsory residence in institutions in

86 See Gerard De Jonge, “Still ‘Slaves of the State’: Prison Labour and International Law”, Dirk van Zyl Smit and Frider Dünkel (eds.), Prison Labour: Salvation or Slavery?, 1999, p. 327. See also See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2005, p. 204; acknowledging that the exception in the ICCPR is “broader” than that of the 1930 Forced Labour Convention as it goes beyond imposing prison labour beyond that of ‘a consequence of a conviction in a court of law’. Note the European Court of Human Rights has declined to find a violation of its exception to penal forced labour where it touches upon old-age pensions. See Council of Europe, European Court of Human Rights, Stummer v Austria, Application no. 37452/02, 7 July 2011.



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consequence of a court order”.87 This appears to go beyond what was envisioned in 1930, as it might well entail those who are detained for noncriminal matters, such as cases of self-harm or those who, for psychological reasons may be a threat to society. For the ILO Committee of Experts, this issue remains one of few where its position is clear and consistent with the 1930 Forced Labour Convention, as it notes that from the wording of the provision, “persons are in detention but have not been convicted – such as persons awaiting trial or persons detained without trial – should not be obliged to perform labour (as distinct from certain limited obligations intended merely to ensure cleanliness)”.88 This parenthetical point is worth noting as this is not what the drafters of the ICCPR had in mind in speaking of ‘ordinary’ work. As the UN Secretary-General reports, within the context of the International Covenant on Civil and Political Rights such ordinary work “would include routine work performed in the course of detention and work done to promote the delinquent’s rehabilitation”.89 The final element of prison labour worth noting is the issue of its use for private ends which, while prohibited by the 1930 Forced Labour Convention, is notable in its absence from the ICCPR.90 Both Canada and the United States of America have failed to become party to the 1930 Convention specifically as a result of the safeguards established to the exception of prison labour which require that such labour be placed under public control and not made available to private companies. For Canada, “public–private partnerships which offer prisoners meaningful work experiences are considered an essential element of modern prison policies”, as a result it would only “consider ratifying the Conven­tion once it is satisfied that [such] public–private initiatives […] are not con­sid­ered a violation of the Convention”. As for the United States, the “Gov­ernment considers that the primary obstacle to ratification of Con­vention No. 29 [re: the 1930 Forced Labour Convention] by the United States is the continuing concern that the Convention could be construed and applied to limit the

87 United Nations, General Assembly, Annotations on the text of the draft International Covenant on Human Rights (Prepared by the Secretary-General), 1 July 1995, UN Doc. A/2929p; as found in General Assembly, Official Records, Agenda item 28 (Part II) Annexes, Tenth Session, 1955, p. 33–34. 88 General Survey 2007, n. 44, p. 25. 89 Annotations draft of International Covenant on Human Rights, n. 87, p. 33–34. 90 Note that while the 1978 American Convention on Human Rights tracks the language of the 1930 Forced Labour Convention, the 1950 European Human Rights Convention, like the ICCPR is silent on prison labour for private ends.

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extent to which the private sector may be involved with inmate labour”.91 For the ILO Committee of Experts, it has sought to accommodate the position of Canada and United States by recog­nising that private labour within prisons can meet the threshold of the exception to forced or compulsory labour. Its reading is that, prison labour for private ends is in violation of the 1930 Convention, however, in cases where such labour is voluntary, it will be deemed to be acceptable: to comply with the Convention, private employment of prison labour must depend on the formal consent of the prisoner concerned. But the requirement of such formal consent is not in itself sufficient to eliminate the possibility that consent be given under the menace of loss of a right or advantage. Prison labour is captive labour in the full sense of the term, namely, the prisoner has no access either in law or in practice, to employment other than under the conditions set unilaterally by the prison administration. The Committee therefore concluded that, in the absence of an employment contract and outside the scope of the labour law, it seems difficult or even impossible, particularly in the prison context, to exactly replicate the conditions of a free working relationship. However, the Committee has considered that, in assessing whether convict labour for private parties is voluntary, conditions approximating a free labour relationship are the most reliable indicator of the voluntariness of labour.92

With this in mind, the Committee of Experts noted in 2011, that it was hopeful that Hungary would revise a number of pieces of legislation so as to require “free and informed consent for the work of prisoners for private companies, both inside and outside prison premises, so as to bring legislation into full conformity with the Convention”.93 Article 2(2)(d) – Emergencies The final exception considered in Article 2(2) of the 1930 Forced Labour Convention as not constituting forced or compulsory labour is: (d) Any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population.

91 General Survey 2007, n. 44, pp. 13 and 14. See also id., p. 58–67. 92 Id., pp. 29–30. See also id., pp. 58–67. 93 Report of the Committee of Experts 2011, n. 58, p. 230.



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In its 1979 Report, the ILO Committee of Experts noted “with satisfaction”, that as a result of its prompting, a number of States had changed their legislation to conform with the obligations set out in this provision and moved to bring their legislation in line with human rights provisions allowing for derogation in times of emergency.94 The Committee of Experts made plain that this exception did not allow for the introduction of general forced or compulsory labour in times of emergency, be it manmade or natural, but insisted that such labour should be targeted, as required “to counter an imminent danger to the population”. Tracking the language of the ICCPR, the Committee noted that “the duration and extent of compulsory service, as well as the purpose of which it is used, should be limited to what is strictly required by the exigencies of the situation”.95 The language permitting derogations in times of emergency was used in its considerations of Moroccan legislation, wherein, “for many years the Committee has been emphasizing the need to amend or repeal several legislative texts which authorize the requisitioning of persons and of goods in order to satisfy national needs […]. These provisions go beyond what is authorized under Article 2(2)(d) of the Convention, under the terms of which requisitioning, and consequently the imposition of work, should be confined to situations endangering the existence or well-being of the whole or part of the population”.96 1957 Abolition of Forced Labour Convention While the exceptions included in Article 2(2) of the 1930 Forced Labour Convention effectively limit the scope of what is deemed forced or compulsory labour in law, the reach of the definition over cases of forced or compulsory labour is, to some extent, increased by the introduction in 1957 of the International Labour Organisations Convention Number 105, the Abolition of Forced Labour Convention which, if nothing else, places emphasis on certain types of practices which are to be abolished as forced or compulsory labour. In its first General Report on forced labour, prepared in 1962, the ILO Committee of Experts provided an assessment of the issue of forced or 94 General Survey 1979, n. 59, p. 32. 95 General Survey 2007, n. 44, p. 32. See Article 4, International Covenant on Civil and Political Rights. Note also Jean Allain, “Derogation from the European Convention of Human Rights in light of ‘Other Obligations under International Law’”, European Human Rights Law Review, Vol. 11, 2005, pp. 480–498. 96 Report of the Committee of Experts 2011, n. 58, p. 239.

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compulsory labour since the 1930 Forced Labour Convention: “the use of forced labour had progressively diminished in a large number of countries, and even disappeared, under the influence of the movements of thought, international standards, the gradual political emancipation of the people and the general progress which has taken place in the economic social sphere”. That said, the Committee of Experts also noted that “for a long time, however, many other forms of economic, social and political constraint, and above all slavery, prevented the peculiar features of forced or compulsory labour as such from being discerned: thus world opinion has only relatively recently become conscious of the existence of systems of forced labour in certain countries”.97 What we see in the establishment of the 1957 Abolition of Forced Labour Convention is a willingness to address systems of forced or compulsory labour for economic purposes or as a means of political coercion. That said, the Convention appears to be a by-product of Cold War in-fighting, in that in setting out five specific insistences in which forced or compulsory labour are to be abolished, the 1957 Convention simply draws attention to practices which would already, in the main, fall under the 1930 definition of forced or compulsory labour. The outcome of this mud-slinging exercise was a 1953 joint-report by the United Nations and the ILO that found that various Western colonial States were using systems of forced labour for economic purposes against indigenous populations in breach of the UN Charter and the Universal Declaration of Human Rights; while the Union of Soviet Socialist Republics were found to be using systems of forced labour as a means of political coercion against those within their own countries who expressed their “ideological opposition to the established political order”.98 The genealogy of joint UN-ILO Report of the Ad Hoc Committee on Forced Labour of 1953 and the 1957 Abolition of Forced Labour Convention emerge from the same source wherein it is clear that the United States of America took the lead and – with Western numerical advantage within a 1950s United Nations – set the agenda where forced or compulsory labour is concerned. In 1947, the UN Economic and Social Council (ECOSOC) decide to place on its agenda an item headed ‘Survey of Forced Labour and Measures for its Abolition” at the request of the American Federation of Labor which also mooted the possibility of a revised Convention. In 1949 97 General Conclusions 1962, n. 30, 1962, pp. 194 and 193. 98 United Nations and International Labour Office, Report of the Ad Hoc Committee on Forced Labour, UN Doc. E/2431, 1953, pp. 124–125.



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ECOSOC rejected a proposal by the Soviet Union in favour of one put forward by the United States calling on the UN Secretary-General to work with the ILO to undertake “an impartial investigation into the extent of forced labour” within all States.99 Further draft resolutions submitted by the Soviet Union were rejected in 1949 and 1951 in favour of resolutions put forward by the United States which led to the establishment and mandate of the 1953 Ad Hoc Committee on Forced Labour.100 While the Soviet Union called for the establishment of an International Commission to be established consisting of between one-hundred and twenty and one-hundred and twenty-five members, “one for every one million members” of national trade union federations meant to consider the living conditions in States where “unemployment had not been eliminated” and to consider the “actual working conditions of male and female workers and their children in the colonies and dependent territories”. This was, as the rejected Soviet draft resolution asserted, in the context of: a divergence of views on whether labour is free or forced in those countries where there is ownership of the land by rich landowners, where there is private capitalist ownership of factories, plants, mines banks, railways and all the other means of production, and where the fruits of the labour of workers and employees are thereby appropriated by the rich – the great capitalists, millionaires and multi-millionaires who control the capitalist monopolies which the workers and employees are in complete economic dependence upon them.101

By comparison, the actual Ad Hoc Committee on Forced Labour was more modest in composition, consisting of five members; its terms of reference have been established as: To study the nature and extent of the problem raised by the existence in the world of systems of forced or ‘corrective’ labour, which are employed as a means of political coercion or punishment for holding or expressing

  99 United Nations and International Labour Office, Report of the Ad Hoc Committee on Forced Labour, UN Doc. E/2431, 1953, p. 150. See also United Nations, Economic and Social Council, Survey of Forced Labour and Measure for its Abolition, Resolution 195, UN Doc. E/1237, 7 March 1949. 100 See United Nations, Economic and Social Council, Survey of Forced Labour and Measure for its Abolition, Resolution 237, UN Doc. E/1484, 5 August 1949 and United Nations, Economic and Social Council, Survey of Forced Labour and Measure for its Abolition, Resolution 350, UN Doc. E/1730, 19 March 1951.  101 See United Nations, Economic and Social Council, Survey of Forced Labour and Measure for its Abolition, Draft Resolution, UN Doc. E/L.165, 19 March 1951; as reproduced in United Nations and International Labour Office, Report of the Ad Hoc Committee on Forced Labour, UN Doc. E/2431, 1953, p. 153, fn. 3.

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chapter five political views, and which are on such a scale as to constitute an important element in the economy of a given country, by examining the texts of laws and regulations and their application in the light of the principles referred to above, and, if the Committee thinks fit, by taking additional evidence into consideration.102

At the very early stages of its deliberations, the Ad Hoc Committee on Forced Labour demonstrating some impartiality by taking, what was in essence, skewed terms of reference and reading into them a more balanced mandate. Instead of simply looking into large scale political coercion through forced or compulsory labour, the Ad Hoc Committee redressed the balance, deciding that “both political and non-political aspects of forced labour should be studied, whether they were found to exist together or separately”.103 The work of the 1953 Ad Hoc Committee on Forced Labour formed the basis of the move within the International Labour Organisation to establish a legal instrument meant to address systems of forced or compulsory labour. The ILO Committee on Forced Labour, consisting of one-hundred and eight members, achieved their objective of drafting an international instrument “such as to command the fullest possible support”, and ultimately “the widest possible ratification and implementation”.104 The 1957 Abolition of Forced Labour Convention (ILO Convention Num­ ber 105), does not revise the 1930 Forced Labour Convention, it is inde­pen­ dent of it, and therefore supplements the 1930 Convention.105 As a result, and due to the obligations which State Parties have undertaken within the 1957 Convention “to secure the immediate and complete abolition of 102 United Nations, Economic and Social Council, Survey of Forced Labour and Measure for its Abolition, Resolution 350, UN Doc. E/1730, 19 March 1951, para. 1(a). 103 United Nations and International Labour Office, Report of the Ad Hoc Committee on Forced Labour, UN Doc. E/2431, 1953, p. 5. For his part, the Soviet Delegate to the 1957 ILO Conference considered that the Ad Hoc Committee had not redressed the balance far enough, as it had “a very definite purpose – that of fostering enmity against the Soviet Union”. International Labour Conference, Twenty-Second Sitting – Friday, 21 June 1957, Record of Proceedings, 40th Session, 1957, Appendix VII, p. 351. 104 International Labour Conference, Report of the Committee of Forced Labour, Record of Proceedings, 40th Session, 1957, p. 708. The Committee consisted of 54 Government members, 198 Employers’ members and 36 Workers’ members. “To achieve equality of voting, each Governmental member had two votes, each Employers’ members six votes, and each Workers’ members three votes”. Id. The 1957 Abolition of Forced Labour Convention was adopted by the International Labour Conference by 240 in favour, none against and the United States of America abstaining. As of January 2012, 169 States have consented to the Convention. 105 General Conclusions 1962, n. 30, p. 196.



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forced or compulsory labour as specified in article 1 of this Con­vention”, States which are party to both instruments are obliged to end forced or compulsory labour as set out in the 1957 Convention even where such labour might fall under the exceptions of the 1930 Forced Labour Convention.106 Article 1 of the 1957 Abolition of Forced Labour Convention required the immediate and complete abolition of forced or compulsory labour: (a) As a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system; (b) As a method of mobilising and using labour for purposes of economic development; (c) As a means of labour discipline; (d) As a punishment for having participated in strikes; (e) As a means of racial, social, national or religious discrimination.

As the ILO Committee of Experts on the Application of Conventions and Recommendations has noted, the 1957 Convention does not “as a matter of law, incorporate any of the provisions”, of the 1930 Convention. While the Committee recognises that the definition of forced or compulsory labour set out in Article 2(1) of the 1930 Convention “can properly serve also to determine what constitutes ‘forced or compulsory labour’ within the meaning of the 1957 Convention”, it took a contrary view with regard to the exception to the definition set out in Article 2(2) of the 1930 Convention. In this case, the Committee repeated that, as a matter of law, no provisions of the 1930 Convention were incorporated into the 1957 Convention, and that this held “true of the exceptions which are laid down in Article 2, paragraph 2, of the 1930 Convention”.107 Article 1(a) – Means of Political Coercion Article 1(a) requires the abolition of forced or compulsory labour “as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system”. Here, the Committee of Experts, at least in its first three Reports, was in keeping with its role as the 106 General Survey 2007, n. 44, p. 77. 107 The Committee of Experts states that “Neither the terms of the [1957] Convention nor the preparatory works leading to its adoption have the effect of incorporating in it, as a matter of law, any of the provisions of the Convention of 1930”. General Survey 1968, n. 29, p. 192.

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guardian of the 1957 Convention. It makes plain that while forced prison labour could be imposed for common crimes as this type of forced or compulsory labour “is not imposed for any of the reasons enumerated in the Convention”; by contrast the 1957 Convention would, in its aim to abolish forced or compulsory labour, “seem to cover both prison labour used as a means of political coercion and any other form of forced labour for the same purpose”.108 By contrast, the Committee of Experts, in its 2007 General Report, opened the door to using forced or compulsory labour in situations prohibited by Article 1(a) if the expressing of political views was manifest in violence (in other words, what in a post 9/11 world is termed ‘terrorism’): The Committee has observed in this connection that the Convention does not prohibit either punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence, or judicial imposition of certain restrictions on persons convicted of crimes of this kind. But the Committee has considered that sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the expression of views or of opposition to the established political, social or economic system, whether such prohibition is imposed by law or by a discretionary administrative decision.109

It is rather difficult to read into a general prohibition such an exception. By this logic, one could say that as Article 1(e) which abolishes forced or compulsory labour “as a means of racial, social, national or religious discrimination”, does not prohibit gender discrimination where it falls within say the prohibition on racial lines so that discrimination against women of European stock, or men of Asian descendents would not be prohibited by the 1957 Convention. Where the use of forced or compulsory labour as a means of political coercion is concerned, the Committee of Experts, in its 2011 Report, made reference to a total of twelve States. These States, located in Africa or Asia, have been singled out by the Committee for having legislation in conflict with Article 1(a) of the 1957 Convention. Instructive are the cases of Kenya and the Philippines wherein, with regard to Kenya, the Committee has taken issue with legislation which allows for “sentences of imprisonment (involving compulsory labour) [to] be imposed as a punishment for participating in certain meetings and gatherings, for the display of emblems 108 Id., p. 213 and General Conclusions 1962, n. 30, p. 234. 109 General Survey 2007, n. 44, p. 82.



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or the distribution of publications signifying association with a political object or political organization”.110 While the Philippines has the same type of legislation, the Committee has sought to emphasise that whereas the Philippines’ Government was of the view that such punishment was meant to address situations “that create a clear and present danger to the public safety, public order and public good”, the Committee instead pointed to: the range of activities which must be protected under Article 1(a) of the Convention comprises the freedom to express political or ideological views, which may be exercised orally and through the press and other communications media, as well as various other generally recognized rights, such as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views and the adoption of policies and laws reflecting them, and which also may be affected by measures of political coercion.

With this is mind, the Committee considered that the Philippines’ legislation was “worded in terms broad enough to lend themselves to be applied as a means of punishment for the expression of views and, in so far as they are enforceable with sanctions involving compulsory labour, they fall within the scope of the Convention”.111 Article 1(b) – Method of Economic Development It appears that in the main, the provisions of Article 1(d) of the 1957 Convention, have come to pass as there has been a clear move away from utilising forced or compulsory labour as a ‘a method of mobilising and using labour for purposes of economic development’. It is with regard to this use of forced or compulsory labour that the Soviet Union found itself hostile to the move to establish the Abolition of Forced Labour Convention. As was noted in a 1953 joint-Report by the United Nations and the International Labour Organisation Ad Hoc Committee on Forced Labour: It is evident from several Soviet sources that, since about 1930, the work of both political and other prisoners has been used in the Soviet Union for large-scale public works (e.g., canals, railways and roads), for the development of vast areas with abundant and hitherto unexploited resources of raw materials, and for the economic development of previously uncultivated regions.112 110 Report of the Committee of Experts 2011, n. 58, p. 236. 111 Id., p. 253. 112 United Nations and International Labour Organisation, n. 99, p. 91.

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Where the ILO Committee of Experts took issue within the general area of economic development was with regard to forced labour for public works, noting that in some States, “the law expressly provides” for such forced labour with regard to the “building and repairing of roads, bridges, dams, etc., laying irrigation and drainage systems”. To this the Committee responded: “these obligations should now be abolished”.113 By its 2007 Survey, the Committee of Experts could report that “during the past few decades […] progress has been achieved in a number of countries in the elimination of provisions imposing compulsory labour for economic purposes”. It having been emphasised that in practice, the use of forced labour was “a productive way of developing the national economy”.114 The Committee went on to provide more clarity to the law, noting that the “terms ‘mobilizing’ and ‘economic development’ used in […] Article 1(b) applies only in circumstances where recourse to forced or compulsory labour has a certain quantitative significance and is used for economic ends. It then noted that Article 1(b): applies only in circumstances where recourse to forced or compulsory labour has a certain quantitative significance and is used for economic ends. The prohibition laid down in Article 1(b) applies even where recourse to forced or compulsory labour as a method of mobilizing and using labour for purposes of economic development is of temporary or exceptional nature […].115

Article 1(c) – Means of Labour Discipline The most far-reaching of these provisions is Article 1(c), the abolition of forced or compulsory labour as a means of labour discipline. Abolished then are not only direct means of compulsion, but also indirect means of coercion which ultimately gets us to a point of free labour within the limits of the law. While indirect compulsion was pointed to in a 1930 Recommendation specific to indigenous labour, forced or compulsory labour as a means of labour discipline is abolished by Article 1(c) of the 1957 Convention.116 While the 1968 General Report of the Committee of Experts spoke to the systematic nature of such labour discipline in the context of apartheid – which could also be considered as falling foul of the 113 General Conclusions 1962, n. 30, p. 218. 114 General Survey 2007, n. 44, p. 92. 115 Id., p. 91. 116 See 1930 Forced Labour (Indirect Compulsion) Recommendation, (Recommendation 35).



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provisions of Article 1(b): “As a method of mobilising and using labour for purposes of economic development”117 – these violations speak in more general terms of the indirect means of disciplining labour which constitutes forced or compulsory labour: coercive methods of recruitment, the inflicting of heavy penalties for breaches of contracts of employment, the abusive use of vagrancy legislation, restrictions on freedom of movement, [and] restrictions on the possession and use of land, etc.118

Lest forced or compulsory labour used to discipline labour be considered a thing of the past, the Committee of Experts notes in its 2005 General Report that forced or compulsory labour in breach of the 1957 Convention can still be imposed on workers via prison labour for various breaches of labour discipline “such as e.g. failure to implement, or breach of, any settlement, award decision or failure to comply with a court order to fulfil a contract of employment, or the failure to avoid waste of goods or materials, to conform to technical standards or to comply with general production plans”.119 The Committee noted, in its 2011 Report, that Thailand’s Labour Relations Act was incompatible with the 1957 Convention, as “penalties of imprisonment (involving compulsory labour) may be imposed on any employee who violates or fails to comply with an agreement on terms of employment or a decision on a labour dispute”.120 In the case of Bahamas, Jamaica, Kuwait and Turkey, the Committee of Experts spoke to the issue of violations of Article 1(c) in the context of seafarers. In its considerations of Bahamas, the Committee stated that “only acts which endanger the ship or the life or health of persons are excluded from the scope of the Convention”. Beyond such situations, the Committee took exception to measures found in the legislation of these four States which used the penal forced labour for desertion, unauthorised absence, or disobedience of seafarers; and thus as a means of labour discipline.121 Despite the fact that in 1968, the Committee of Experts stated that the exceptions of the 1930 Forced Labour Convention were not to be

117 The Committee notes that the provisions of Article 1(b) “applies only where recourse to forced or compulsory Labour has a certain quantitative significance and is used for economic ends”; id. 118 General Survey 1968, n. 29, p. 193. 119 General Survey 2007, n. 44, pp. 94–95. 120 Report of the Committee of Experts 2011, n. 58, p. 257. 121 Id., pp. 220, 231, 237, and 260.

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considered as being incorporated in the 1957 Convention, in its 2005 General Report, the Committee determined “that the Convention does not prohibit the imposition of sanctions (even if involving compulsory labour) on persons responsible for breaches of labour discipline that impair or are liable to endanger the operation of essential services”. Such a reading, in law, looks to be retrograde and more in tune with the provisions of the ICCPR, as forced or compulsory labour is, in this instance, apparently open to limitations in the judgement of the Committee of Experts. Article 1(d) – Punishment for Strikes Turning to the provisions on industrial action. Despite almost being deleted from the text of the Abolition of Forced Labour Convention two days before its adoption, the provision of Article 1(d), requiring the abolition of forced or compulsory labour “as a punishment for having participated in strikes”, has been successful in the main, in having States redraft their legislation touching on penal servitude in the case of legal strikes.122 As opposed to the approach of the Expert Committee takes with regard to Article 1(e) touching on discrimination, and its overall principle that the 1957 Convention overrides the exceptions found in Article 2(2) of the 1930 Forced Labour Convention, the ILO Committee of Experts on the Application of Conventions and Recommendations reads into the 1957 Convention the exceptions of the 1930 Convention, that is, that forced or compulsory labour is permissible as punishment for having participated in strikes in cases of emergencies, work of a purely military character, prison labour, or minor communal services, in situations where such strikes have been deemed illegal.123 The Committee of Experts took its lead in this instance from the discussion during the International Labour Conference which adopted the 1957 Convention, noting “that in certain circumstances penalties could be imposed for participating in illegal strikes and that these penalties might include normal prison labour”.124 Where the Committee of Experts laid emphasis in its 2007 General Report was not with regard to the ability to impose forced or compulsory labour as punishment for having

122 International Labour Conference, Report of the Committee on Forced Labour, Record of Proceedings, 40th Session, 1957, Appendix VII, p. 710. 123 General Conclusions 1962, n. 30, p. 226. 124 Id.



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participated in strikes but in doing so, that States should act in a proportionate manner: the Committee wishes to recall the importance it attaches to the general principle that, in all cases and regardless of the legality of the strike action in question, any sanctions imposed should not be disproportionate to the seriousness of the violations committed.125

Thus, the Committee has now sought to circumscribe force labour for participation in a strike as opposed to abolishing it. As for States themselves, the Committee of Experts has noted, in regard to Egypt, that it takes no issue with forced or compulsory labour as punishment for “acts of violence, assault or destruction of property committed in connection with [a] strike”, but noted that the Penal Code allowed for imprisonment for public employees participating in a strike, wherein a maximum penalty of a year carried with it compulsory labour, this would run counter to the obligations found in the 1957 Convention.126 Where Zimbabwe is concerned, the Committee took issue with its labour legislation, saying that the legislation “includes disproportionate sanctions for the exercise of the right to strike and an excessively large definition of essential services, which means that a significant number of workers have no right to strike”.127 Article 1(e) – Means of Discrimination Where the provisions of Article 1(e) are concerned, the Committee of Experts, in its 2007 General Report remains true to the essence of 1957 Convention: that States “suppress and not make use of any form of forced or compulsory labour” as set out in the provisions of Article 1. Here the Committee of Experts feels itself able to be forceful: Even where the exaction of a particular kind of labour is not otherwise covered by the Conventions on forced labour (for example, compulsory military service), any discriminatory distinction made on the above grounds should be abolished under this provision. Similarly, even where the offence giving rise to the punishment is a common offence which does not otherwise come under the protection of Article 1(a), (c) or (d) of the [1957] Convention, but the punishment involving compulsory labour is meted out more severely to certain groups defined in racial, social, national or religious terms, this situation falls within the scope of the Convention.128 125 General Survey 2007, n. 44, p. 106. 126 Report of the Committee of Experts 2011, n. 58, p. 228. 127 Id., p. 264. 128 General Survey 2007, n. 44, p. 108.

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Where Article 1(e) is concerned (re: “As a means of racial, social, national or religious discrimination”.), the Committee only considered one case in its 2011 Report, that of Pakistan, wherein it flagged the treatment of the Ahmadi or Quadiani communities as running afoul of the Convention in situations “where punishment involving compulsory labour is aimed at the peaceful expression of religious views, or where such punishment (for whatever offence) is meted out more severely, or even exclusively, to certain groups defined in social or religious terms”.129 These then are the the parameters of forced or compulsory labour as set out by the ILO and various instances of international jurisprudence. In the main, we see that the Committee of Experts, far from being the guardians of limiting forced or compulsory labour, have in fact been willing to accept the various moves by States to widen the exception and thus narrow the prohibition against forced or compulsory labour. Ultimately, there is no true move, within the International Labour Organisation, to eradicate forced or compulsory labour, instead the ILO has simply allowed the scope of the exceptions to widen so that the application of the prohibition on forced or compulsory labour has effectively been limited. With this in mind, attention now turns to consider the claim made within the International Labour Organisation, that forced or compulsory labour constitutes a norm of jus cogens. Forced or Compulsory Labour As a Jus Cogens Norm? In 1998, the International Labour Organisation Commission of Inquiry into Forced Labour in Myanmar concluded that “there exists now in international law a peremptory norm prohibiting any recourse to forced labour and that the right not to be compelled to perform forced or compulsory labour is one of the basic human rights”.130 It is to the first of these findings – that forced or compulsory labour amounts to a jus cogens norm – that one should challenge on two grounds. First, that at a normative level, it is difficult to make the argument that forced or compulsory labour can ever meet the threshold of a peremptory norm; and second,

129 Report of the Committee of Experts 2011, n. 58, p. 250. 130 International Labour Organisation, Forced Labour in Myanmar (Burma), Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), 2 July 1998, para. 203.



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that since 1998, the law has settled in a manner which does not support the finding of the Commission of Inquiry. The Commission of Inquiry came about as a result of a complaint lodged by the Worker’s Delegation at the 1996 International Labour Con­ ference, regarding Myanmar’s “non-observance of the Forced Labour Con­ vention”, in which it alleged that: forced labour is being used systematically, on an ever larger scale, and in an increasing number of areas of activity. Large numbers of forced labourers are now working on railway, road, construction, and other infrastructure projects, many of which are related to the Government’s efforts to promote tourism in Myanmar. In addition the military is engaged in the confiscation of land from villagers who are then forced to cultivate it to the benefit of the military appropriators.131

For its part the three-person Commission of Inquiry sustained much of the allegations brought forward by the Worker’s Delegation, as it concluded that “there is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military”. In making this determination the Commission went on to say that “a State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act and engages its responsibility for the violation of a peremptory norm in international law”.132 In making it determination that forced or compulsory labour constituted a jus cogens norm – that is a norm from “which no derogation is permitted”133 – the Commission appears to assimilate forced or compulsory labour to slavery. In developing its findings, the Commission of Inquiry first set out an historical consideration which acknowledged that “the prohibition of recourse to forced labour has its origin in the efforts made by the international community to eradicate slavery”.134 The Commission then continued by giving some consideration to the 1926

131 Id., para. 1. 132 Id., paras. 528 and 538. 133 Articles 53 of the 1969 Vienna Convention on the Law of Treaties reads, in part For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 134 Forced Labour in Myanmar, n. 130, para. 198.

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Slavery Convention and the 1956 Supplementary Convention as well as mentioning the 1930 Forced Labour Convention and the 1957 Abolition of Forced Labour Convention. The Commission of Inquiry went on to lay its claim to peremptory status for forced or compulsory labour on the following grounds, that: Since 1945, many States have prohibited forced labour at the constitutional level. Moreover, several international human rights instruments explicitly prohibit this form of denigration of the individual. These instruments do not define forced labour; reference should therefore be made to the relevant Conventions and resolutions of the ILO.  The prohibition of recourse to forced labour, including the right to the free choice of employment, is closely related to the protection of other basic human rights: the right not to be subjected to torture or to other cruel, inhuman or degrading treatment, and even the right to life. In the case of armed conflicts, civilians and prisoners of war are offered protection against forced labour under the terms of the applicable international instruments.

This statement is followed immediately by the following: The Commission concludes that there exists now in international law a peremptory norm prohibiting any recourse to forced labour and that the right not to be compelled to perform forced or compulsory labour is one of the basic human rights. A State which supports, instigates, accepts or tolerates forced labour on its territory commits a wrongful act for which it bears international responsibility; furthermore, this wrongful act results from a breach of an international obligation that is so essential for the protection of the fundamental interests of the international community that it could be qualified, if committed on a widespread scale, as an inter­ national crime under the terms of article 19 of the draft articles of the International Law Commission on state responsibility. Similarly, the Inter­ national Court of Justice has qualified the obligation to protect the human person against slavery as an obligation erga omnes since, in view of the importance of this right, all States can be held to have a legal interest in its protection.  Finally, any person who violates this peremptory norm is guilty of a crime under international law and thus bears individual criminal responsibility. More specifically, enslavement, which was defined by the International Law Commission as “establishing or maintaining over persons a status of slavery, servitude or forced labour contrary to well-established and widely recognized standards of international law” is also, if committed in a widespread or systematic manner, a crime against humanity that is punishable under the terms of the statutes setting up the four ad hoc international criminal tribunals established since the Second World War to try those responsible for serious violations of international humanitarian law, as well as under the draft statute for an international criminal court and the draft code of crimes



forced or compulsory labour249 against the peace and security of mankind adopted by the International Law Commission in 1994 and 1996 respectively.135

While there might be much to consider in the passages just reproduced, emphasis in the first instance should be placed on what the Commission had to say in the lead up to its determination that forced or compulsory labour constitutes a peremptory norm. Beyond the mention of the international treaties touching on slavery and forced labour, the Commission appears to base its determination on the fact that States have prohibited forced or compulsory labour within their domestic systems by reference to constitutional provisions and that a number of international human rights instruments prohibit forced or compulsory labour.136 This is a very short peg upon which to rest such a determination. With regard to mention, in the final paragraph of Report of the Commission of Inquiry, that enslavement including slavery, servitudes or forced labour; it will be shown in the following Chapter dealing with enslavement, that such a reading no longer holds in light the Statute of the International Criminal Court. Let us now turn to consider whether forced or compulsory labour can, at the normative level, become a peremptory norm. A norm of jus cogens or peremptory norm, is typically a norm born of customary law whereby States recognise that a norm not only constitutes part of international 135 Id., paras. 202–204. Footnotes omitted. 136 As for the items noted by the Commission after it concluded that there now existed a peremptory norm prohibiting any recourse to forced labour, consider the following: With regard to a State involved in large scale forced labour: it qualifies “if committed on a widespread scale, as an international crime”, under Article 19 of the 1980 Draft Articles on State Responsibility is now moot, as Article 19 and the very concept of State criminality has been dropped in the International Law Commission’s 2001 Articles of State Responsibility. While this puts a final nail in that coffin, it might be noted in passing that Article 19 was silent on forced labour, but did note that an international crime may result from “a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid”. With regard to the reference to obligations erga omnes, the Commission of Inquiry was noting the dicta of the International Court of Justice in the Barcelona Traction case, wherein the Court qualified the obligation to protect the human person against slavery as an obligation erga omnes, not protection against forced labour. With regard to the reference of the Commission of Inquiry to the 1994 and 1996 draft Code of Crimes against the Peace and Security of Mankind, this is also moot, as these provisions are dead-letter, as a result of their incorporation into the Statute of International Criminal Court without the creation of the international crime of forced labour. See generally, Jean Allain and John R.W.D. Jones, “A Patchwork of Norms: A Commentary on the 1996 Draft Code of Crimes against the Peace and Security of Mankind”, European Journal of International Law, Vol. 8, 1997, pp. 100–117.

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customary law, but that an additional opinio juris is present, which speaks to the norm in question being one from which no derogation is allowed.137 In domestic law we might speak of ‘strict liability’ whereas in international law we would recognise that no circumstance would preclude the wrongfulness of the violation of a jus cogens norm. This cuts to the heart of what a peremptory norm is; it is a norm for which any justification for its breach, in law, is moot. It is not so much that a peremptory norm cannot be violated; breaches of the jus cogens imperative often takes place. The point is that there exists in law no circumstance that would justify the action, making an otherwise wrongful act somehow legal. Where forced or compulsory labour is concerned, it is very difficult to make the argument that it meets the threshold of a peremptory norm. In the first instances, it should be recognised that forced or compulsory labour does not appear in the 1948 Universal Declaration of Human Rights. While the 1947 Draft Outline of the International Bill of Rights proposed a provision which read in part: “Slavery and compulsory labour are inconsistent with the dignity of man and therefore prohibited by this Bill of Rights. […] Involuntary servitude may also be imposed as part of a punishment pronounced by a court of law”.138 Throughout the negotiation process, the elements touching on forced or compulsory labour were often proposed but continuously rejected.139 While it is not articulated as such, it appears that the provisions of forced or compulsory labour, being qualified by exceptions lacked the pithiness to find their way into the Universal Declaration. Thus, when in 1947, the UK proposed to replace the above provisions of the Draft Outline with one that read “No form of slavery shall be permitted”, the Soviet Representative considered this “striking in its simplicity”.140 Later in the process, it was made plain that States “prefer a 137 See A. Gómez Robledo, “Le ius cogens international”, Collected Courses of The Hague Academy of International Law, Vol. 172, 1981, pp. 104–108; and Phillipe Cahier, “Cours général de droit international public”, Collected Courses of The Hague Academy of International Law, Vol. 195, 1985, p. 198. 138 Economic and Social Council, Commission on Human Rights, Drafting Committee, Draft Outline of International Bill of Rights, UN Doc. E/CN.4/AC.1/3, 4 June 1947, p. 4. 139 See, for instance the interventions of the American Federation of Labour at Economic and Social Council, Commission on Human Rights, Drafting Committee (Second Session), Summary Record of the Thirty-Fifth Meeting, 17 May 1948, UN Doc. E/CN.4/AC.1/ SR.35, 29 May 1948, pp. 2 and 3; and Economic and Social Council, Commission on Human Rights (Third Session), Summary Record of the Third Meeting, 1 June 1948, UN Doc. E/CN.4/SR.53, 4 June 1948, p. 3. 140 Economic and Social Council, Commission on Human Rights, Drafting Committee, Summary Record of the Second Meeting, 11 June 1947, UN Doc. E/CN.4/AC.1/3/SR.2, 13 June 1947, p. 12.



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shorter and less technical Declaration”.141 Forced Labour was ultimately excluded from the Universal Declaration of Human Rights, as it was felt that it fell within the preview of servitude.142 Thus, forced or compulsory labour fails to be acknowledged in its own right as a fundamental norm of international human rights law, having been excluded from the Universal Declaration of Human Rights. Beyond this, the main element which distinguishes peremptory norms from other norms of international law is the inability to derogate. Where forced or compulsory labour is concerned, one of its handfuls of exceptions is the ability to derogate in times of emergency. Thus, for instance, Article 8(c)(iii) of the International Covenant on Civil and Political Rights make plain that forced or compulsory labour shall not include: “Any service exacted in cases of emergency or calamity threatening the life or wellbeing of the community”.143 Beyond this internal ability to derogate within the provision of forced or compulsory labour, it is also more generally recognised that forced or compulsory labour may be derogated from. Thus while the provisions of slavery and servitude found within the International Covenant on Civil and Political Rights are deemed to be non-derogable by reference to Article 4(2), those of Article 8 related to forced labour are noticeable by their absence. If we take the norm of forced or compulsory labour as constituting its definition as set out in Article 2(1) of the 1930 Forced Labour Conven­ tion, it is difficult to see how it could constitute a peremptory norm as it is  very much deemed a norm which may be derogated from in times of emergency. If we take the norm of forced or compulsory labour as constituting both the definition and the exceptions found in Article 2(2) – an awkward proposition in and of itself – we run up against the fact that the Inter­national Covenant on Civil and Political Rights has modified 141 Economic and Social Council, Report of the Commission on Human Rights (Second Session), UN Doc. E/600, 17 December 1947, p. 25. 142 See the discussions of Mrs. Roosevelt and Professor Cassin instigated by the intervention of the American Federation of Labour in United Nations, Economic and Social Council, Commission on Human Rights (Third Session), Summary Record of the Third Meeting, 1 June 1948, UN Doc. E/CN.4/SR.53, 4 June 1948, p. 4. Article 4 of the Universal Declaration of Human Rights reads: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” Note also Article 23(1) which reads: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” 143 Note that the European Convention on Human Rights also takes the same approach of declaring slavery and servitude as non-derogable while not including forced labour. See Article 15 in relation to Article 4.

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this norm in a number of situations widening the reach of what is exempt from constituting forced or compulsory labour. The result is that by agreement, States in 1966 would have been considered to have derogated from the norm by having included provisions of forced or compulsory labour in the ICCPR in breach of Article 53 of the Vienna Convention of Treaties which deems that “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law”. Parenthetically, it might be recalled that one of the exceptions, within the ICCPR as with 1930 Forced Labour Convention, provides for derogation. With the Interna­tional Labour Organisation Commission of Inquiry into Forced Labour in Myanmar made plain that its determination was that as of 1998, “there exists now in international law a peremptory norm prohibiting any recourse to forced labour”; there is no evidence proffered, of opinio juris between 1966 and 1998, that indicates forced or compulsory labour has reached the normative level of a jus cogens norm. Turning to consider the evolution of international criminal law, we see that forced or compulsory labour does not emerge as an international crime but instead is subsumed in the crime of enslavement. What now follows is very much a sketch which foreshadows the in-depth discussion which will be taken in the next Chapter which will focus on enslavement within the context of international criminal law. Here, with regard to forced or compulsory labour being subsumed in the crime of enslavement, reference should be made in the first instance to the 2002 Krnojelac case before the International Criminal Tribunal for the former Yugoslavia. In that case, the Prosecution alleged that enslavement of detainees in KP Dom detention centre of Foca, Bosnia and Herzegovina, was “primarily in relation to forced labour”. While the Trial Chamber in this case ultimately decided that such forced or compulsory labour had not been proven, the Chamber set out the requirement in law of what would need to be proven: To establish the allegation that detainees were forced to work and that the labour detainees performed constituted a form of enslavement, the Prosecution must establish that the Accused (or persons for whose actions he is criminally responsible) forced the detainees to work, that he (or they) exercised any or all of the powers attaching to the right of ownership over them, and that he (or they) exercised those powers intentionally.  International humanitarian law does not prohibit all labour by protected persons in armed conflicts. Generally, the prohibition is against forced or involuntary labour. It is clear from the Tribunal’s jurisprudence that “the exaction of forced or compulsory labour or service” is an “indication of



forced or compulsory labour253 enslavement”, and a “factor to be taken into consideration in determining whether enslavement was committed”.144

Likewise, as set out in more detail in the Chapter which follows, the Statute of the International Criminal Court does not criminalise forced or compulsory labour. Where forced or compulsory labour does receive mention is within a footnote of the secondary legislation of the Court, its Elements of Crimes, where these seek to give more depth of understanding to the crimes of Enslavement and Sexual Slavery. With regard to each of these crimes, Element 1 of the crimes reads, in identical terms: The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.145

Attached to each of these provisions is a footnote which read: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

What will become evident as consideration turns to international criminal law in the next Chapter is that those circumstance in which the exacting of forced or compulsory labour will meet the threshold of a crime under the jurisdiction, ratione materiae of the Statute is where – to use the language of the 1926 Slavery Convention – forced labour has developed “into conditions analogous to slavery”. Thus only where the forced labour manifests the exercise of any or all of the powers attaching to the right of ownership, while it constitutes an international crime; one which may be also deemed to constitute a jus cogens norm: the peremptory norm which prohibits enslavement. In other words, and with reference to the work of the International Law Commission and the emergence of the International Criminal Court, it may be said that forced or compulsory labour can attain the threshold of a peremptory norm, but not in its own right. This could 144 International Criminal Tribunal for the former Yugoslavia, Prosecutor v Milorad Krnojelac (IT-97-25-T) Judgment, 15 March 2002, p. 147. See also Special Court for Sierra Leone, Brima et als., Trial Chamber, Judgement, SCSL-2004-16-T, 20 June 2007. 145 International Criminal Court, Assembly of States Parties, Elements of the Crimes, ICC-ASP/1/3, 9 September 2002, p. 117.

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only transpire where labour, when exacted under menace of a penalty and for which a worker does not offer him or herself voluntarily, manifests powers attaching to the right of ownership. When the labour compelled is, in law, slavery. This is rather a different proposition than that put forward by the International Labour Organisation Commission of Inquiry into Forced Labour in Myanmar, that “there exists now in international law a peremptory norm prohibiting any recourse to forced labour”. Conclusion Forced or compulsory labour emerged from the colonial experience as a means of making a distinction between slavery, which was meant to be abolished without exception, and forced labour which was fundamental to the ‘civilising mission’, developed as a codification of the practice. While much of that codification is deemed no longer to be in force, what remains of the 1930 Forced Labour Convention is its definition, but just as important, the exceptions to that definition. Superimposed on this 1930 definition of forced or compulsory labour and its exceptions is the 1957 Abolition of Forced Labour Convention which was meant to abolish in all instances forced or compulsory labour as a means of political coercion, labour discipline, discrimination, as well as a method of mobilising labour or punishment for participating in a strike. Thus the 1957 Abolition of Forced Labour Convention was meant to narrow what constitutes forced or compulsory labour by excluding those five areas just mentioned from the purview of not only ‘forced or compulsory labour’ as defined in the 1930 Forced Labour Convention, but also from the exceptions to the definition as set out in Article 2(2) of that instru­ ment. Yet, in large measure this has not come to pass as the International Labour Organisation’s Committee of Experts on the Application of the Conventions and Recommendations has interpreted these 1930 and 1957 Conventions with an eye to the provisions on forced or compulsory labour as found in the 1966 International Covenant on Civil and Political Rights. Despite not having a mandate beyond the ILO instruments, the Committee of Experts has provided a reading of forced or compulsory labour which is more in tune with State practice than State obligations under the 1930 and 1957 Conventions. Instead of acting as a guardian of those instruments, it has become an authoritative body which justifies State encroachments on the normative whole of forced or compulsory labour – that is forced or compulsory labour read with its 1930 exceptions and its 1957 limitations.



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The ascribing by the ILO of forced or compulsory labour of a jus cogens norm is an interesting one. While it was the Commission of Inquiry into Forced Labour in Myanmar which first made this argument, the assertion remains a live one within the ILO. Thus while the Committee of Experts has allowed the content of the norm of forced or compulsory labour to expand, the ILO has sought to gain special status for the very same norm which it appears to be undermining. While it is clear that forced or compulsory labour has not met the threshold of jus cogens, it remains true that this servitude can meet that threshold where the substance of forced or compulsory labour – that ‘work or service which is exacted under menace of any penalty for its non-performance and for which the worker concerned does not offer himself voluntarily’ – meets the legal definition of slavery, thus manifesting any or all of the powers attaching to the right of ownership.

CHAPTER SIX

ENSLAVEMENT

This Chapter considers the crime of ‘enslavement’ as it has evolved in international criminal law so that today it can be considered, in substance, as being synonymous with slavery as first defined by the 1926 Slavery Convention. This was not always so, as in the aftermath of the Second World War, jurists sought to reconcile their reading of slavery in wartime with the Nuremberg Charter. The work of the United Nations International Law Commission, which touched on slavery in times of war, though never ratified by States, was considered by some to reflect customary international law. That approach, while acknowledged by the International Criminal Tribunal for the former Yugoslavia, was set aside for one which relied on the exercise of the powers attaching to the right of ownership. It was this approach which was later picked up by those negotiating the 1998 Rome Statute of the International Criminal Court and the judges interpreting the Statute of the Special Court for Sierra Leone. Having considered this evolution of the crime of enslavement, the Chapter turns to examine the manner in which the relevant provisions of the secondary legislations of the International Criminal Court – the Elements of Crimes – although appearing prima facia to be at variance with the definition of enslavement, can be read so as to be consistent with the Rome Statute. Ultimately, by establishing that enslavement is a crime against humanity only where there is the exercise of the powers attaching to the right of ownership means that the crime is both established with legal certainly; and by dropping reference to lesser servitudes, that the International Criminal Court truly has jurisdiction, as the Rome Statute states, over only ‘the most serious crimes of concern to the international community as a whole’. The Evolution of Enslavement in International Criminal Law Before considering the customary basis of the crime against humanity of enslavement, it is worth recalling as set out in Chapter One, that warfare

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was a primary means of enslaving people. In Roman Law, it was recognised that in terms of jus gentium “people become slaves on being captured by enemies”.1 While the move to abolish slavery generally comes in the wake of the Nineteenth Century move to abolish the slave trade at sea2; the move to abolish slavery in the specific situation of war – the genealogical genesis of enslavement – emerges from a different source: The 1863 Instructions for the Government of Armies of the United States in the Field. Those Instructions – the so-called Lieber Code – issued during the United States Civil War, declared as a war measure that “private citizens are no longer [to be] enslaved”. This war-time declaration made by United States President Abraham Lincoln was meant to hold the troops of the Southern Con­federacy to a declared standard, should the Northern Union emerge victorious. The Instructions dismiss domestic law, instead stating that “there exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land”. That provision was then given substance by first turning to the issue of slavery and, though it plays rather fast and loose with Roman Law, declares that “any fugitive slave falling into the hands of United States’ troops will be deemed to be free with no future claim of compensation for lost property being entertained”.3 Beyond this, the Leiber Code declares, at Article 58, that any enslavement of United States troops will be met with the ultimate penal sanction:

1 The Digest of Justinian (5 Marcian, Institutes, book 1) as reproduced in Stanley Engerman, Seymour Drescher, and Robert Paquette (eds.), Slavery (Oxford Readers), 2001, p. 99. 2 See Jean Allain “Nineteenth Century Law of the Sea and the British Abolition of the Slave Trade”, British Yearbook of International Law 2007, Vol. 78, 2008, pp. 342–388. 3 See Article 42, United States of America, Instructions for the Government of Armies of the United States in the Field, General Order Number 100, 24 April 1893; which reads: Slavery, complicating and confounding the ideas of property, (that is of a ‘thing’) and of personality, (that is of ‘humanity’) exists according to municipal or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that ‘so far as the law of nature is concerned, all men are equal’. Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions.  Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person

enslavement259 The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint.  The United States cannot retaliate by enslavement; therefore death must be the retaliation for this crime against the law of nations.

It is here that we witness the genesis of provisions of what would come to be termed ‘enslavement’ in international criminal law. While the first Geneva Convention touching on the laws of armed conflict would emerge later in that same year of 1863, the issue of enslavement was not present, as that instrument dealt with the care of the wounded and sick in the field. Despite the growing corpus of international humanitarian law during the Twentieth Century, no treaty provision dealing with enslavement emerges until the sole mention in 1977.4 That said, enslavement did find voice in international criminal law and evolved from Nuremberg onwards through pronouncements which came to be regarded as customary international law. The 1945 Charter of the International Military Tribunal sets out its jurisdiction, ratione materiae, at Article 6, in the following terms: The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.  The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:  (a) Crimes against Peace: […]  (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment

is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of postliminy, no belligerent lien or claim of service. 4 See Article 4(2), Protocol Additional to the Geneva Conventions of 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977, which mirrors the provisions of the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, as it reads, in part, that the “following acts against the persons […] are and shall remain prohibited at any time and in any place whatsoever: […] (f) slavery and the slave trade in all their forms”.

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chapter six or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;  (c) Crimes against Humanity: namely, murder, extermination, enslave­ ment, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in con­ nection  with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.5

Where Article 6(b) is concerned, the International Military Tribunal stated that such war crimes were already established under interna­ tional  law, as being covered by provisions of either the 1907 Hague Regulations or the 1929 Geneva Convention on the Treatment of Prison­ ers  of War. Despite the fact that the notion of ‘deportation to slave labor’ is not found in either of these instruments (nor forced labour or slavery), the Tribunal went on to say that “violation of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit or argument”.6 This final statement is difficult to reconcile, as the deportation to slave labour during the National Socialist era was a new phenomenon and no mention of enslavement or this nebulous ‘deportation to slave labor’ found voice in provisions dealing with the laws of war, but for the tangential provisions of the 1863 Lieber Code noted earlier. That said, the defendant, Fritz Sauckel was found guilty of both war crimes and crimes against humanity and sentenced to death by hang­ ing for having been “in charge of a programme which involved deportation for slave labour of more than 5,000,000 human beings, many of them under terrible conditions of cruelty and suffering”.7 Sauckel had been

5 Article 6, Charter of the International Military Tribunal, 8 August 1945. Emphasis added. 6 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Volume I, 1947, p 253. 7 With regard to crimes against humanity, the International Military Tribunal does not give voice in its Judgment of Fritz Sauckel to the crime he was found guilty of, though the presumption would be, it was Count 4(A), which reads: (A) Murder, Extermination, Enslavement, Deportation, and Other Inhumane Acts Committed against Civilian Populations before and during the War

enslavement261 Plenipotentiary General for the Utilisation of Labour, who in the words of the Nuremberg Tribunal: set up a programme for the mobilisation of the labour resources available to the Reich. One of the important parts of this mobilisation was the systematic exploitation, by force, of the labour resources of the occupied territories. Shortly after Sauckel had taken office, he had the governing authorities in the various occupied territories issue decrees, establishing compulsory labour service in Germany. Under the authority of these decrees Sauckel’s Com­ missioners, backed up by the police authorities of the occupied territories, For the purposes set out above, the defendants adopted a policy of persecution, repression, and extermination of all civilians in Germany who were, or who were believed to be, or who were believed likely to become, hostile to the Nazi Government and the common plan or conspiracy described in Count One. They imprisoned such persons without judicial process, holding them in ‘protective custody’ and concentration camps, and subjected them to persecution, degradation, despoilment, enslavement, torture, and murder.  Special courts were established to carry out the will of the conspirators; favored branches or agencies of the State and Party were permitted to operate outside the range even of nazified law and to crush all tendencies and elements which were considered “undesirable”. The various concentration camps included Buchenwald, which was established in 1933, and Dachau, which was established in 1934. At these and other camps the civilians were put to slave labor, and murdered and ill-treated by divers means, including those set out in Count Three above, and these acts and policies were continued and extended to the occupied countries after 1 September 1939, and until 8 May 1945. As regard war crimes, Sauckel was found guilty of the following: (B) Deportation for Slave Labor and for other Purposes of the Civilian Populations of and in Occupied Territories During the whole period of the occupation by Germany of both the Western and the Eastern Countries it was the policy of the German Government and of the German High Command to deport able-bodied citizens from such occupied countries to Germany and to other occupied countries for the purpose of slave labor upon defense works, in factories, and in other tasks connected with the German war effort.  In pursuance of such policy there were mass deportations from all the Western and Eastern Countries for such purposes during the whole period of the occupation.  Such deportations were contrary to international conventions, in particular to Article 46 of the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed and to Article 6 (b) of the Charter.  Particulars of deportations, by way of example only and without prejudice to the production of evidence of other cases are as follows:  1. From the Western Countries: […]  2. From the Eastern Countries: The German occupying authorities deported from the Soviet Union to slavery about 4,978,000 Soviet citizens. […] See Nuremberg War Crimes Trials at http://avalon.law.yale.edu/subject_menus/imt.asp.

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chapter six obtained and sent to Germany the labourers which were necessary to fill the quotas given them by Sauckel. He described so-called ‘voluntary’ recruiting by Janates ‘a whole batch of male and female agents just as was done in the olden times for shanghaiing’. That real voluntary recruiting was the exception rather than the rule is shown by Sauckel’s statement on 1st March, 1944, that ‘out of five million foreign workers who arrived in Germany not even 200,000 came voluntarily’. Although he now claims that the statement is not true, the circumstances under which it was made, as well as the evidence presented before the Tribunal, leave no doubt that it was substantially accurate. […]  Sauckel […] was informed of the bad conditions which existed. It does not appear that he advocated brutality for its own sake, or was an advocate of any programme such as Himmler’s plan for extermination through work. His attitude was thus expressed in a regulation: “All the men must be fed, sheltered and treated in such a way as to exploit them to the highest possible extent at the lowest conceivable degree of expenditure”.8

Beyond these considerations given by the International Military Tribunal, the issue of slave labour was given an airing beyond Nuremberg as a result of trials held by the United States of America in its zone of occupation, under the provisions of Control Council Law Number 10. Two of these cases – Milch and Pohl– dealt with the use of civilians as slave labour. In both cases, findings of guilt with regard to crimes against humanity were handed down; in Pohl, it being noted that “compulsory uncompensated labour” constituted slavery.9 However, in both cases, no substantive discussion took place as to the content of the norm. The International Law Commission The law itself was not tried in any significant manner at Nuremberg;10 however, the victorious Powers, having solidified the peace through the establishment of the United Nations Organisation in 1945 moved, shortly thereafter, to give voice to the legal principles which emerged from the post-Second World War trials of Nuremberg and Tokyo. This took place in the guise of the formulation of the 1950 Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment   8 Id.   9 United States v Oswald Pohl and Others, 3 November 1947, reprinted in Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, Volume V, 1997, p 970. 10 In 1996, the International Law Commission noted that: “An initial formulation of crimes against humanity was provided in article 6, subparagraph (c), of the Charter of the Nurnberg [sic] Tribunal, although the Nurnberg Tribunal was very circumspect in applying it”.

enslavement263 of the Tribunal, by the United Nations International Law Commission.11 When the United Nations General Assembly asked the Commission to formulate these Principles, it also requested that it prepare a consideration of international crimes under the heading of a ‘draft code of offences against the peace and security of mankind’.12 Jean Spiropoulos, the individual tasked by the International Law Commission to act as Special Rapporteur and develop a draft code, put forward in his second Report in 1951, a provision which included enslavement: Inhuman acts by the authorities of a State or by private individuals against any civilian population, such as murder, or extermination, or enslavement, or deportation, or persecutions on political, racial, religious or cultural grounds, when such acts are committed in execution of or in connexion with other offences defined in this article.

“This paragraph”, Mr. Spiropoulos noted, “corresponds substantially to article 6, paragraph (c), of the Charter of the Nurnberg [sic] Tribunal, which defines ‘crimes against humanity’.13 That provision was adopted by the International Law Commission, in 1954 as Article 2(11) of the draft Code of Offences against the Peace and Security of Mankind.14 This is where things stood until 1981, when the UN General Assembly invited the “International Law Commission to resume its work with a view to elaborating the draft Code of Offences against the Peace and Security of Mankind”.15 In 1986, as part of his Fourth Report to the Commission, the new Special Rapporteur, Doudou Thiam, included the following provision without comment as part of his revamping of the draft Code: Inhuman acts which include, but are not limited to, murder, extermination, enslavement, deportation or persecutions, committed against elements of a population on social, political, racial, religious or cultural grounds.16

In his Seventh Report of 1989, Mr. Thiam “had recast the draft articles on war crimes and crimes against humanity which he had submitted in his 11 United Nations, General Assembly, International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, UN Doc. A/1316 (A/5/12). 12 See United Nations, General Assembly, Resolution 177 (II), 21 November 1947. 13 United Nations, General Assembly, Report of the International Law Commission to the General Assembly, UN Doc. A/1858, 1951, p. 136. 14 See United Nations, General Assembly, Report of the International Law Commission to the General Assembly, UN Doc. A/2693, 1954, p. 151. 15 United Nations, General Assembly, Resolution 106 (36), 10 December 1981. 16 See United Nations, General Assembly, Report of the International Law Commission to the General Assembly, UN Doc. A/CN.4/398, 1986, p. 86. Emphasis added.

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fourth report”, and focused in particular on, inter alia, inhuman acts, with special reference to slavery and forced labour.17 From hereon, but for the end product of his work on the draft Code, Mr. Thiam shifted focus dealing with the issue of ‘slavery’ as opposed to ‘enslavement’. In turning to consider the issue of slavery, it was acknowledged that there “was general agreement in the Commission on the need to include slavery as a crime against humanity in the draft code”, and that it was deemed preferable to establish a separate article devoted to the issue.18 As a result, the Special Rapporteur proposed that “Slavery and all other forms of bondage, including forced labour” should constitute a crime against humanity.19 He did so by reference to the 1926 Slavery Convention, the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights (ICCPR); Mr. Thiam acknowledging that the latter two instruments “condemned the practice of slavery in the strongest terms”. Reference was also made to the ICCPR wherein it spoke of “servitude and forced labour”, with the Special Rapporteur noting that the “Covenant also followed the provisions of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which stated in its preamble that ‘no one shall be held in slavery or servitude’”. This was followed by an approach by the Special Rapporteur – and endorsed by the International Law Commission – which was hardly consonant with a reading of the 1956 Supplementary Convention, nor the object and purpose of that instrument as put forward by its drafters. In its Report to the General Assembly, the Commission writes: “It was pointed out that the Commission had the choice between the traditional concept of slavery as it appeared in the 1926 Slavery Convention and the wider definition given in the Supplementary Convention, which referred to ‘slavery … and institutions and practices similar to slavery’”. In fact the 1956 Supplementary Convention, far from assimilating the two concepts, makes a clear distinction between slavery and institutions and practices similar to slavery.20 Article 7(a) picks up the definition of slavery as defined 17 United Nations, General Assembly, Report of the International Law Commission to the General Assembly, UN Doc. A/44/10, 1989, p. 86. 18 Id. 19 Id., p. 86. 20 This is confirmed by the fact that a proposal by Portugal to define slavery together with institutions and practices similar to slavery under the heading of ‘servile status’ was expressly rejected at the Diplomatic Conference negotiating the 1956 Supplementary Convention. See Jean Allain, The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention, 2008, pp. 518–519.

enslavement265 by 1926 Convention verbatim, with the addition of a final clause which reads: “and ‘slave’ means a person in such condition or status”. While the following provision – Article 7(b) – defines ‘A person of servile status’ as meaning “a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention”, that is: the institutions or practices of debt bondage, serfdom, servile marriage, and child trafficking. Mr. Thiam goes on to say, rather strikingly – making reference to the work of the Sub-Committee on the Prevention of Discrimination and Protection of Minorities – that the scope of the concept of slavery “had been widened in recent years” and “now covered debt bondage and a whole range of other forms of exploitation”. With regard to debt bondage, and specifically the draft Article being put forward, which spoke of ‘slavery and all other forms of bondage, including forced labour’: “the general opinion in the Commission was that it lacked precision and that its content should be clarified”. Where forced labour was concerned, it was pointed out that Article 5 of the 1926 Slavery Convention spoke of a need ‘to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery’; and thus that the 1926 “Convention dealt not so much with forced labour as with the risk of it turning into slavery”.21 As a result of these interventions, the Special Rapporteur said that the question would need further study. That further study manifest itself in new provisions as part of the 1991 Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission, wherein Article 21 dealt with “Systematic or mass violations of human rights” including “establishing or maintaining over persons a status of slavery, servitude or forced labour”.22 The shift from inhuman acts to systematic and mass 21 Report of the International Law Commission, n. 17, p. 61. 22 United Nations, General Assembly, Report of the International Law Commission on the work of its forty-third session, Yearbook of the International Law Commission, UN Doc. A/46/10 (Volume 2, Part 2), 1991, p. 103. The provision of Article 21, Systematic or mass violations of human rights, reads in full: An individual who commits or orders the commission of any of the following violations of human rights:  – murder  – torture  – establishing or maintaining over persons a status of slavery, servitude or forced labour  – persecution on social, political, racial, religious or cultural grounds in a systematic manner or on a mass scale; or

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violations of human rights was brought on by the “considerable devel­ opment in the protection of human rights since the 1954 draft Code”. With regard to ‘establishing or maintaining over persons a status of slavery, servitude or forced labour’, “the Commission considered that, since there were specific conventions on these matters it was enough for the draft article to enumerate the crimes and leave it to the commentary to mention the principles of international law underlying these conventions”.23 When the International Law Commission once more considered the issue of slavery, the landscape of international criminal law had been fundamentally altered, with the creation of the ad hoc tribunals for the former Yugoslavia and Rwanda by the UN Security Council. The Commission this time around reverted to speaking of ‘enslavement’ as opposed to ‘slavery’. In its 1994 Report, the International Law Commission, noting Article 5 of the International Criminal Tribunal for the former Yugoslavia, wherein, as a crime against humanity, sub-paragraph (c) enumerated “enslavement”, stating that Article 5 covered, in substance, its own draft Article 21.24 As a result, the Special Rapporteur proposed a new text of Article 21 of the draft Code of Crimes against the Peace and Security of Mankind entitled ‘Crimes against humanity’, which in part stated that a “crime

 – deportation or forcible transfer of population shall, on conviction thereof, be sentenced [to… ]. 23 United Nations, General Assembly, Report of the International Law Commission on the work of its forty-third session, Yearbook of the International Law Commission, UN Doc. A/46/10 (Volume 2, Part 2), 1991, p. 104. The Commission provides examples of these specific conventions: For example, slavery is defined in the Slavery Convention, of 25 September 1926, and in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, of 7 September 1956, which also defines servitude. Both slavery and servitude are also prohibited under article 8 of the International Covenant on Civil and Political Rights, of 16 December 1966. The article also prohibits forced labour, a concept which it spells out, and which also forms the subject of some conventions, such as ILO Conventions Nos. 29 and 105 concerning the Abolition of Forced Labour. 24 See United Nations, General Assembly, Report of the International Law Commission on the work of its forty-sixth session, Yearbook of the International Law Commission, UN Doc. A/49/10 (Volume 2, Part 2), 1994, p. 40. Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia reads, in part: “The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: […] (c) Enslavement; […]”.

enslavement267 against humanity means the systematic commission of any of the following acts: […] Reduction to slavery”.25 This was followed, by the adoption of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, the culmination of the work of both Mr. Thiam as Special Rapporteur and the International Law Commission on the issue. At Article 18 of the 1996 Draft Code, crimes against humanity was defined, in part as “any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group: […] (d) Enslavement”.26 In the Commentary to that provision, the Commission had the following to say: Enslavement means establishing or maintaining over persons a status of slavery, servitude or forced labour contrary to well-established and widely recognized standards of international law, such as: the Slavery Convention (slavery); the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (slavery and servitude); the International Covenant on Civil and Political Rights (slavery and servitude); and ILO Convention No. 29, concerning Forced or Compulsory Labour (forced labour). Enslavement was included as a crime against humanity in the Charter of the Nurnberg Tribunal (art. 6, subpara. (c)), Control Council Law No. 10 (art. II, subpara. (c)), the statute of the International Tribunal for the Former Yugoslavia (art. 5) and the statute of the International Tribunal for Rwanda (art. 3) as well as the Nurnberg Principles (Principle VI) and the 1954 draft Code (art. 2, para. 11).

International Criminal Tribunal for the Former Yugoslavia In the 2001 judgment in Kunarac case before the International Criminal Tribunal for the former Yugoslavia, the Trial Chamber endorsed the work of the International Law Commission (read: that enslavement refers to ‘establishing or maintaining over persons a status of slavery, servitude or forced labour’), by stating that as “a body consisting of experts in 25 United Nations, General Assembly, Report of the International Law Commission on the work of its forty-seventh session, Yearbook of the International Law Commission, UN Doc. A/50/10 (Volume 2, Part 2), 1995, p. 25. 26 United Nations, General Assembly, International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind with commentaries, Yearbook of the International Law Commission, UN Doc. A/51/10 (Volume 2, Part 2), 1996, p. 47. Article 18 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind reads, inter alia: “A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group: […] (d) Enslavement; […]”.

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international law, including government legal advisers, elected by the UN General Assembly, the work of the ILC, at least in relation to this issue, may be considered as evidence of customary international law”. That said, while it is difficult to see where the opinio juris and State practices manifest in the narrative of the International Law Commission just provided; the question would ultimately become moot as the International Criminal Tribunal for the former Yugoslavia would read enslavement in a different light. The Tribunal considered that the parameters of “enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person”27. The Trial Chamber went on to say that: Under this definition, indications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator.

The Trial Chamber then added: The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.

The Trial Chamber, stated that the “‘acquisition’ or ‘disposal’ of someone for monetary or other compensation, is not a requirement for enslavement. Doing so, however, is a prime example of the exercise of the right of ownership over someone”. The Trial Chamber then accepted the approach put forward by the Prosecutor, as to the factors “to be taken into consideration in determining whether enslavement was committed”: These are the control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour. The Prosecutor also submitted that the mere ability to buy, sell, trade or 27 International Criminal Tribunal for the former Yugoslavia, Kunarac et als. (IT-96-23-T &-IT-96-23/1-T) Judgment, 22 February 2001, pp. 191 and 192.

enslavement269 inherit a person or his or her labours or services could be a relevant factor.28

Where forced labour was concerned, the Trial Chamber added little, stating that such labour was not prohibited by the Fourth Geneva Convention, though “strict conditions” govern such labour. For its part, the Appeals Chamber in Kunarac maintained the distinction between slavery and ‘enslavement’ though it accepted “the chief thesis of the Trial Chamber that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as ‘chattel slavery’, has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership”.29 The Appeals Chamber appeared to make the distinction between de jure slavery (read: chattel slavery) and de facto slavery, though it does not express itself in those terms; instead it spoke of contemporary forms of slavery wherein “the victim is not subject to the exercise of the more extreme rights of ownership associated with ‘chattel slavery’, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of ‘chattel slavery’ but the difference is one of degree”.30 The Appeals Chamber then noted that “the law does not know of a ‘right of ownership over a person’. Article 1(1) of the 1926 Slavery Conven­ tion speaks more guardedly ‘of a person over whom any or all of the powers attaching to the right of ownership are exercised.’ That language is to be preferred”. Repeating the “factors or indicia” noted by the Trial Chamber, the Appeals Chamber, while indicating that the list was not exhaustive, stated that “the question whether a particular phenomenon is a form of enslavement” will be based on, inter alia: the ‘control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour’.31 28 Id., pp. 193. Footnote references have been omitted. 29 International Criminal Tribunal for the former Yugoslavia, Kunarac et als. (IT-96-23 &-IT-96-23/1-A) Judgment, 12 June 2002, p. 35. 30 Id., pp. 35–36. The Appeals Chamber felt compelled to add a footnote which states: “It is not suggested that every case in which the juridical personality is destroyed amounts to enslavement; the concern here is only with cases in which the destruction of the victim’s juridical personality is the result of the exercise of any of the powers attaching to the right of ownership. 31 Id., p. 36.

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In the Krnojelac case before the Yugoslav Tribunal, while the Trial Chamber determined that the Prosecutor had failed to make the case that Milorad Krnojelac had enslaved individuals by means of forced labour, the Chamber did consider the law of enslavement. For the Trial Chamber, the case to be made by the Prosecutor was that individuals (in this case detainees) were forced to work and that there was an intentional exercise of any or all of the powers attaching to the right of ownership.32 Noting that labour was not prohibited by international humanitarian law, the Trial Chamber stated that “[g]enerally, the prohibition is against forced or invol­ untary labour”. It continued: “it is clear from the Tribunal’s jurisprudence that ‘the exaction of forced or compulsory labour or service’ is an ‘indication of enslavement’, and a ‘factor to be taken into consideration in determining whether enslavement was committed’”.33 This understanding that the exaction of forced or compulsory labour or service is an indication of enslavement appears to be at variance with a reading of the 1930 Forced Labour Convention. While Article 2 of that Convention establishes that “the term ‘forced or compulsory labour’ shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. The Convention also establishes exceptions, which are deemed to escape the definition of forced labour. These include compulsory military service, normal civic obligations of the citizens, penal labour, and community service, but also “any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity […]”.34 While the provision dealing the normal civic obligations is directed to citizens, the provisions for wartime make no distinction between citizens and those whether prisoners of war or civilians under occupation, finding themselves in the hands of the enemy. Thus, prima facie, that forced labour will be an indication of enslavement means that this crime is wider than that of slavery. This is so, 32 International Criminal Tribunal for the former Yugoslavia, Prosecutor v Milorad Krnojelac (IT-97-25-T) Judgment, 15 March 2002, p. 147. Note that on appeal, Milorad Krnojelac was found guilty of forced labour, not on the grounds of enslavement, but of persecution. See International Criminal Tribunal for the former Yugoslavia, Prosecutor v Milorad Krnojelac (IT-97-25-A) Judgment, 17 September 2003. 33 Id., p. 147. Emphasis in the original. 34 Article 2(2)(d), ILO Convention (No. 29) Concerning Forced Labour, 1930; reads: Any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;

enslavement271 as this reading of the Trial Chamber regarding forced labour appears not to recognise the exceptions to the exacting of forced labour in the event of war, despite this exception being integral to the overall definition of forced or compulsory labour set out in the 1930 Forced Labour Convention. That said, for the Trial Chamber the question of determining enslavement fell to a question of fact as to whether the labour of protected persons (read: detainees) was involuntary or not. As a basis for making this determination, it reverted to the pronouncement in the Kunarac case, as being reflective of relevant circumstance: The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions.

Stating that Article 5(1) of Additional Protocol II “sets out the applicable standard”35 as to labour for detainees in armed conflict, the Trial Chamber stated that if the fundamental guarantees established by Article 4 of Protocol II were to be “violated, the performance of that labour may be treated as an indication of enslavement”. Article 4 Additional Protocol II, as quoted by the Trial Chamber, reads: 1.   All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction […] 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever […]  (f) slavery and the slave trade in all their forms […]

This then is the test set out with regard to forced labour as enslave­ ment. With reference to Article 4, the issue cannot be with regard to subparagraph (f), as this would be a circular argument: that a violation of that provision in the performance of labour ‘may be treated as an indication of 35 Article 5(1), Additional Protocol (II) to the Geneva Conventions of 1949, 1977 reads: In addition to the provisions of Article 4 the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained; […] (e) they shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population.

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enslavement’. Instead, it appears that the Trial Chamber was saying that forced or involuntary labour exacted from protected persons ‘may be treated as an indication of enslavement’ where it fails to provide ‘respect for their person, honour and convictions and religious practices’. This appears to stray rather far from the exercise of any or all of the powers attaching to the right of ownership and to a determination on the sole basis of whether forced labour was extracted; not whether forced labour met the threshold of powers attaching to the right of ownership.36 Regardless of the above interpretation, it may be said that the evolution of international law from Nuremberg through the work of the Interna­ tional Law Commission on the Draft Code of Crimes against the Peace and Security of Mankind considered enslavement as a crime which went beyond the definition of slavery to include lesser servitudes. With the International Criminal Tribunal for the former Yugoslavia, we witness a transition from this broader understanding of enslavement to one which provides more legal certainty at trial, on the basis of the 1926 definition. This understanding is incorporated into the Statute of the International Criminal Court and has been given voice before the Special Court for Sierra Leone. Enslavement and the Statute of the International Criminal Court In the move to establish the International Criminal Court – which had its genealogy intertwined with the work of the International Law Commission on the Draft Code of Crimes against the Peace and Security of Mankind as early as 1993 – A Preparatory Committee on the Establishment of an International Criminal Court was established in 1996. Where enslavement was concerned, the Preparatory Committee noted that: Some delegations expressed the view that enslavement required further clarification based on the relevant legal instruments. There were proposals to refer to enslavement, including slavery-related practices and forced labour; or the establishment or maintenance over persons of a status of slavery, servitude or forced labour. The view was expressed that forced labour, if included, should be limited to clearly unacceptable acts.

36 Here it should be recalled that the preamble of the 1926 Slavery Convention states as an object of that instrument “that it is necessary to prevent forced labour from developing into conditions analogous to slavery”; while Article 5 reads in part that State Parties are “to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery”.

enslavement273 There was clearly a lack of agreement as to what should be included with regard to the crime of enslavement. Thus, for instance, in the Chairman’s informal texts of proposals and suggestions, slavery appeared (not enslavement) as a war crime, but also, though in square brackets, other types of exploitation so as to read: “slavery [and the slave trade,] [slave-related practices, and forced labour] in all their forms”. Likewise, enslavement as a crime against humanity was also bracketed against the following: “[, including slavery-related practices and forced labour]; [establishing or maintaining over persons a status of slavery, servitude or forced labour]”.37 Where enslavement was concerned, the following definition – mirroring the definition of slavery as found in the 1926 Slavery Convention – was contemplated: “Enslavement means intentionally placing or maintaining a person in a condition in which any or all of the powers attaching to the right of ownership are exercised over him”. However, by 1997, the Preparatory Committee had settled on including only the crime of enslavement as a crime against humanity,38 though “slavery and the slave trade in all their forms” remained a live option as a war crime.39 In fact, that latter provision remained a live option until the 1998 United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, though it was ultimately not included in the Rome Statute.40 Instead, the parties negotiating the Statute of the International Criminal Court established the ‘crime against humanity of enslavement’ at Article 7(1)(c) and defined that crime at Article 7(2)(c) in the following terms: ‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such 37 United Nations, General Assembly, Preparatory Committee on the Establishment of an International Criminal Court, Summary of the Proceedings of the Preparatory Committee during the Period 25 March-12 April 1996, UN Doc. A/AC.249/1, 7 May 1996, pp. 64, 69 and 70. Square brackets are utilised in the negotiation text to connote a lack of agreement prior to the final negotiation, in this case at Rome in the summer of 1998. 38 See United Nations, General Assembly, Preparatory Committee on the Establishment of an International Criminal Court, Working Group on definition of crimes, Draft Consolidated Text, UN Doc. A/AC.249/1997/WG.1/ CRP.5, 20 February 1997, p. 1. 39 See United Nations, General Assembly, Preparatory Committee on the Establishment of an International Criminal Court, Decisions Taken by the Preparatory Committee at its Session held from 11 to 21 February 1997, UN Doc. A/AC.249/1997/L.5, 12 March 1997, p. 1. 40 United Nations, United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, 14 April1998, UN Doc. A/ CONF.183/2/Add.1, p. 24.

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The definition of enslavement as found in Article 7(2)(c) is, in substance, the same as that of slavery as established by the 1926 Slavery Convention and later included in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. By this definition, the States Parties negotiating the Rome Statute rejected the move to establish enslavement to include slavery and lesser servitudes as was mooted during the work of the Preparatory Committee. In so doing, by treaty-law the States Parties limited amongst themselves the normative content of enslavement as against what had been deemed, by some, customary international law. The States Parties did so by assimilating the crime against humanity of enslavement to slavery. However, before proceeding to consider the content of this provision, word should be give to the latter part of the definition of enslavement as found in the Statute of the International Criminal Court. It should be understood that this provision, which reads “[…] and includes the exercise of such power in the course of trafficking in persons, in particular women and children”, does not add to the substance of the definition of enslavement but simply confirms that the powers attaching to the right of ownership may be found in instances of trafficking in persons. Such a latter element constitutes what the High Court of Australia called “a common drafting technique”.42 The latter half of the definition of enslavement does not extend the operation of the overall definition, it simply brings trafficking to the attention of judges and makes them aware that they should not exclude the issue ipso facto but should, in fact, consider issues of trafficking if they manifest powers attaching to the right of ownership. As a result it should be emphasised that the substance of the crime of enslavement – ‘the exercise of any or all of the powers attaching to the right of ownership over a person’ – as set out in the Statute, mirrors that of ‘slavery’ as established in international law.

41 Article 7(2)(c), Rome Statute of the International Criminal Court, U.N. Doc. A/ CONF.183/9, 17 July 1998. 42 The Queen v Tang [2008] HCA 39, 28 August 2008, para. 33. In that case, the High Court considered the latter half of the following like provisions: For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.

enslavement275 Despite the fact that the crime against humanity of enslavement as defined by Article 7(2)(c) of the Statute of the International Criminal Court is in essence the same as that of slavery as first defined in the 1926 Slavery Convention, it should be noted that the secondary legislation of the International Criminal Court – the Elements of Crimes – appears, prima facie, to bring into questions this understanding of enslavement as being synonymous with slavery. Article 9 of the Statute of the International Criminal Court states that the “Elements of Crimes shall assist the Court in the interpretation and application” of the jurisdiction ratione materiae. Where enslavement is concerned, the Elements of the Crimes, which were drafted in 2000 by the Preparatory Commission for the International Criminal Court, and later endorsed by the Assembly of States Parties to the Rome Statute at its first session, in September 2002, state the following at Article 7(1)(c): 1.  The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.43

While Element 2 and 3 speaks to establishing the threshold of enslavement as a crime against humanity, Element 1 sets out to elaborate on the definition of enslavement established by the Statute of the International Criminal Court.44 Element 1 provides examples of what constitutes powers attaching to the right of ownership including “purchasing, selling, lending or bartering such a person or persons”. These examples are in line 43 International Criminal Court, Assembly of States Parties, Elements of the Crimes, ICC-ASP/1/3, 9 September 2002, p. 117. 44 It should be noted that Element 1 of the crime against humanity of enslavement is reproduced in exact terms (including its footnote) as common Element 1 to the crimes of sexual slavery as found at Articles 7(1)(g)-2 – Crime against humanity of sexual slavery; 8(2) (b)(xxii)-2 – War crime of sexual slavery; and 8(2)(e)(vi)-2 – War crime of sexual slavery of the Elements of Crimes. For a consideration of the slavery element of sexual slavery before the International Criminal Court see: International Criminal Court, Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. German Katanga and Mathieu Ngudjolo Chui, Motion for Leave to Submit as Amicus Curiae on Observations Related to Sexual Slavery Submitted by Queen’s University Belfast Human Rights Centre, ICC-01/04-01/07-1257, 30 June 2009, Annex.

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with those put forward by the United Nations Secretary-General in his 1953 Report mentioned earlier; though it should be emphasised that the Secretary-General goes further in providing examples of what would constitute such powers with regard to, for instance, the use of an individual or their labour in an unrestricted manner and gaining the unfettered benefit of the product of that labour.45 Element 1 of the crime against humanity of enslavement emerges from negotiations attached to a further crime under the Statute: the war crime and crime against humanity of sexual slavery. While the crime of sexual slavery is not defined in the Statute, it was agreed during the deliberations of the 1999 Preparatory Commission for the International Criminal Court (not to be confused with the Preparatory Committee which preceded it) that Element 1 would, as Eve La Haye notes, “define the concept of slavery” for both enslavement and sexual slavery.46 It might be worthwhile to take a short pause from our consideration of Element 1 to speak to the crime of sexual slavery.47 In the context of the International Criminal Court, sexual slavery should be understood not as a distinct crime, but enslavement plus a sexual element. This reading mirrors the approach taken the year previous to the elaborations of the Elements of Crimes by Gay McDougall, in her 1998 Report to the now defunct United Nations Sub-Commission on the Promotion and Protection of Human Rights in which she wrote that, with regard to sexual slavery, the “term ‘sexual’ is used in this report as an adjective to describe a form of slavery, not to denote a separate crime. In all respects and in all circumstances, sexual slavery is slavery”.48 The relevant elements of the crime of sexual slavery found in Elements of Crimes bear this out, as they read: 1.  The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, 45 For the six instances of powers attaching to the right of ownership set out by the Secretary General see Chapter 3, p. 114. 46 Eve La Haye, “Article 8(2)(b)(xxiii) – Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization and Sexual Violence”, Roy Lee (ed.) International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, 2001, p. 191. 47 See generally, Valerie Oosterveld, “Sexual Slavery and the International Criminal Court: Advancing International Law”, Michigan Journal of International Law, Vol. 25, 2003– 2004, pp. 605–651. 48 United Nations, Economic and Social Committee, Sub-Commission on the Promotion and Protection of Human Rights, Systematic Rape, Sexual Slavery and Slaverylike Practices during Armed Conflict: Final Report submitted by Gay J. McDougall, Special Rapporteur, UN Doc E/CN.4/Sub.2/1998/13, 22 June 1998, p. 9.

enslavement277 lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.

Returning to our considerations of Element 1, and recalling that its genealogy is based in discussions of sexual slavery rather than enslavement, it was the United States that first put forward a proposal regarding elements of the crime of sexual slavery. In the American proposal of February 1999, the slavery element read: “That the accused deprived one or more persons of their liberty”. That proposal included a commentary, stating that: Besides physically detaining or confining a person to a particular place without consent, the deprivation of liberty required by this offence could also include severe deprivations of autonomy and freedom of movement, which are universally recognized as impermissible under international law.49

However, as it was recognised that elements of sexual slavery could constitute elements of another crime under the jurisdiction of the Court, Costa Rica, Hungary and Switzerland put forward the following proposal that gravitated towards enslavement: “The perpetrator treated a person as chattel by exercising any or all of the powers attaching to the right of ownership, including sexual access through rape or other forms of sexual violence”.50 This proposal did not emerge in a vacuum as the United States had put forward the following proposal for the elements of crime of enslavement, which gave voice, in the first instance, to the 1926 definition of slavery: 1.    That the accused intended to exercise powers attaching to the right of ownership over one or more persons. 2.  That the accused either purchased or sold one or more persons or deprived them of their liberty and forced them to do labour without compensation. 3.  That any deprivation of liberty or forced labour was without, and the accused knew it was without, lawful justification or excuse. 4. That the purchase, sale or deprivation and forced labour was part of, and the accused knew it was part of, a widespread or systematic attack against a civilian population. 49 Preparatory Commission for the International Criminal Court, Proposal submitted by the United States of America: Draft elements of crimes, Addendum, PCNICCI1999IDP.4/ Add.1, 4 February 1999, p. 6. 50 Preparatory Commission for the International Criminal Court, Proposal submitted by Costa Rica, Hungary and Switzerland on certain provisions of Article 8 para. 2 (b) of the Rome Statute of the International Criminal Court: (viii), (x), (xiii), (xiv), (xv), (xvi), (xxi), (xxii), (xxvi), PCNICCI1999/WGECIDP.8, 19 July 1999, p. 4.

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To this the American proposal provided the following comment, that “‘purchased or sold’ need not be limited to the establishment of technical legal ownership but can include effectively equivalent transactions’.51 Here then there was recognition in 1999, from the United States that the exercise of powers attaching to the right of ownership held in both de jure and de facto situations. Where the proposal by Costa Rica, Hungary and Switzerland is concerned, “many delegations [of the Preparatory Commission] stressed the inadequacy and outdated nature of the word ‘chattel’”. Instead, the pithier ‘slavery as the powers attaching to the right of ownership’ was consid­ ered; but this definition was thought to lack precision.52 In the lead up to the December meetings of the Preparatory Commission, Canada and Germany made a proposal which married the proposal by Costa Rica, Hungary and Switzerland to the United States’ proposal including the substances of both the definition of slavery and the notion of liberty into an element which was now made applicable to both the draft Elements of the Crimes of enslavement and sexual slavery.53 By mid-December, there was 51 Preparatory Commission for the International Criminal Court, Proposal submitted by the United States of America: Draft elements of crimes, Addendum, PCNICCI1999IDP.4/ Add.1, 4 February 1999, p. 4. 52 La Haye, n. 46, p. 191. 53 Element 1 of the Canada and Germany proposal reads: The accused exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. As commentary, the proposal added: “Enslavement includes the exercise of such power in the course of trafficking in persons, in particular women and children”. See Preparatory Commission for the International Criminal Court, Proposal submitted by Canada and Germany on Article 7, PCNI CCI1999/WGEC/DP.36, 23 November 1999, pp. 3–4. Note that a group of Arab States proposed that the crimes of enslavement and sexual slavery include an element which read: “Powers attaching to ownership does not include rights, duties and obligations incident to marriage between a man and a woman or between parent and child.” Preparatory Commission for the International Criminal Court, Proposal submitted by Bahrain, Iraq, Kuwait, Lebanon, the Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, the Sudan, the Syrian Arab Republic and United Arab Emirates concerning the elements of crimes against humanity, PCNICC/1999/WGEC/DP.39, 3 December 1999, pp. 2 and 3. This proposal did not garner the needed support. See Valerie Oosterveld, “Sexual Slavery and the International Criminal Court: Advancing International Law”, Michigan Journal of International Law, Vol. 25, 2003–2004, pp. 636–637. Note also a proposal made by Colombia during the December sessions of the Preparatory Commission, which speaks to the frustration which it saw in the discussions around the common element for the crimes of enslavement and sexual slavery, noting that “the debate has centered on the inclusion or omission of the forms of ownership. For our delegation, this is not a substantive discussion”. Preparatory Commission for the International Criminal Court, Proposal submitted by Colombia: Comments on the proposals submitted

enslavement279 agreement on the substance of the elements common to enslavement and sexual slavery: The accused exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.54

Though, with regard to the element of the crime of enslavement, a footnote appears which provides more guidance, this time to what is to be understood to constitute ‘deprivation of liberty’.55 That footnote would come to be added to the crime of sexual slavery and would be introduced into Elements of Crimes which were ultimately adopted by the Assembly of States Parties of the Rome Statute on the International Criminal Court in September 2002. That footnote reads: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.56

Having considered the drafting process of the provisions of the Elements of Crimes common to enslavement and sexual slavery, attention now turns to developing a reading of its provisions that is in harmony with the Statute of the International Criminal Court. Similar Deprivations of Liberty Beyond providing examples of powers attaching to the right of ownership, the common element to the crimes of enslavement and sexual slavery by Canada and Germany on article 7 and by Japan on the ‘structure’ of Elements of Crimes against Humanity, PCNICC/1999/WGEC/DP.41, 6 December 1999, p. 2. 54 Preparatory Commission for the International Criminal Court, Discussion paper proposed by the Coordinator, PCNICC/1999/WGEC/RT.16, 15 December 1999, pp. 2 and 5. 55 See id., p. 2, n. 7, which reads: “It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.”. 56 See footnotes 11, 18, 53 and 66, Elements of Crimes. Assembly of States Parties to the Rome Statute of the International Criminal Court, 9 September 2002; which deal with the crime against humanity of enslavement, the crime against humanity of sexual slavery, the war crime of sexual slavery in an international armed conflict, and the war crime of sexual slavery in a non-international armed conflict.

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adds a final phrase which reads “or by imposing on them a similar deprivation of liberty”. An ordinary reading of this provision in the context of the overall provision of common Element 1 could lead to two readings, however, both readings lead to the same interpretation of that provision. As this will be a rather technical consideration, the provisions of Element 1 are reproduced and separated by reference to their sentence structure: Primary clause: The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, Secondary clause: such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. […] Final phrase of the secondary clause: […] or by imposing on them a similar deprivation of liberty.

With regard to the link between the first part of the secondary clause and its final phrase, it should be noted that the conjunction ‘or’ can, in English grammar, provide for either a continuation or an alternation in the sentence. The first reading of the phrase ‘or by imposing on them a similar deprivation of liberty’ would be that this phrase is but a continuation of the examples provided in the secondary clause, so as to form part of the following train of examples of powers attaching to the right of ownership: the purchasing, selling, lending, bartering or the imposing of similar deprivations of liberty on a person. In this first reading, the ‘similar deprivations of liberty’ are those similar to that manifest in the purchasing of a person, the selling of a person, or the lending or bartering of a person. As these are examples of powers attaching to the right of ownership, a similar deprivation of liberty would have no independent meaning, but would be a deprivation of liberty similar to those characterised as powers attaching to the right of ownership. In Valerie Oosterveld’s first-hand account of the negotiations of the Preparatory Commission, she states that delegations took issue with the list of powers provided (re: ‘purchasing, selling, lending, bartering’) as these “focused on examples with a commercial or pecuniary aspect”. Where this first reading of the phrase ‘or by imposing on them a similar deprivation of liberty’, is concerned, Oosterveld goes on to say, that “the use of the term ‘similar deprivations of liberty’ compounds the problem of the narrow list because ‘similar’ could be read to mean ‘similar to 57 See Oosterveld, n. 47, p. 632.

enslavement281 actions with a commercial or pecuniary nature”.57 La Haye notes that this concern led to the drafting of the footnote that elaborates on the notion of ‘deprivation of liberty’. A second reading of the final phrase of Element 1 would be as an alternative. That ‘similar deprivations of liberty’ is to be considered as distinct from (or an alternative to) the rest of the secondary clause. However, such a reading cannot hold as there are two items which link the final phrase to the rest of the secondary clause. First, the reference to the act of ‘imposing on them’ which relates to the ‘one or more persons’ over whom the perpetrator is exercising powers attaching to the right of ownership. Second, mention of ‘similar deprivation of liberty’, speaks to a deprivation which would be similar to those powers attaching to the rights of ownership which are provided as examples. Finally, the negotiations of the Preparatory Commission do not accord with such a reading, but speak to the first reading noted above. Thus, the final phrase, which speaks of ‘similar deprivations of liberty’, must be understood as an example of a power attaching to the right of ownership. As a result, not only is this a proper textual reading of common Element 1 of the crimes of enslavement and sexual slavery consonant with the travaux préparatoires, but it also meets the requirement of Article 9(3) of the Statute of the International Criminal Court which requires that the Elements of Crimes “shall be consistent with this Statute”. Such consistency between Element 1 and the Statute is manifest by the fact that the notion of ‘a similar deprivation of liberty’ has no independent meaning beyond constituting a power attaching to the right of ownership. However, this is not the true end point of a consideration of this notion of ‘a similar deprivation of liberty’, as Element 1 has appended to it a footnote which sets out an understanding of ‘deprivation of liberty’. It will be recalled that the footnote reads: It is understood that such deprivation of liberty may, in some circum­ stances,  include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Simi­ lar  to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

Through this footnote what appears to have transpired is the expansion of enslavement to include, beyond the established definition of slavery, as a deprivation of liberty the lesser servitudes of forced labour, debt

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bondage, serfdom, servile marriage or child trafficking – the latter four being the servile statuses set out in the 1956 Supplementary Convention.58 This is so, as these deprivations of liberty would appear by way of this footnote to not only be similar to powers attaching the right of ownership but to include the exacting of forced labour or the reduction of a person to a servile status through serfdom, debt bondage, servile marriage or child trafficking as constituting such powers. Through the addition of this footnote then, the narrowing of parameters of the crime against humanity of enslavement as established by the Statute of the International Criminal Court appears prima facie to have been enlarged by a footnote of what William Schabas terms the “subordinate legislation” of the International Criminal Court: the Elements of Crimes.59 However, this cannot hold as, in general terms, a footnote is meant to expand or clarify, not to detract from or contradict the provision to which it is appended. The phrase ‘a similar deprivation of liberty’ as found in common Element 1 is understood as an example of a power attaching to the right of ownership, and requires that the footnote be read in a manner which does not detract from, but expands or clarifies the understanding of ‘similar deprivation of liberty’, consonant with its reading as found in common Element 1 and, by extension, in conformity with the obligation of the provisions of Article 9(3) of the Statute which require that the “Elements of Crimes […] shall be consistent with this Statute”. An interpretation which by the stealth of a footnote found in the Elements of Crimes which purports to expand the definition of enslavement beyond slavery to include lesser servitudes stretches the notion of consistency with the Statute beyond the judicial horizon of sound interpretation of international law. Despite this, consideration of the first sentence of this footnote with reference to the evolution of the lesser servitudes established in law provides the possibility for the footnote to be read so as to be internally consistent with the Statute. The footnote establishes that a deprivation of liberty may, in some circumstances, include forced labour or a servile status (leaving aside trafficking for the moment). Those circumstances would be when forced labour or a servile status manifest powers attaching to the right of ownership and, despite their nomenclature and definition in

58 Note that the final sentence of Element 1, dealing with trafficking, is addressed it in the next section of this study. 59 Willliam Schabas, An Introduction to the International Criminal Court, 2007, p. 91.

enslavement283 law, slip their titular moorings to meet the definitional threshold of enslavement as found in the Statute of the International Criminal Court. Established law recognises this possibility. Consider forced labour. Forced or compulsory labour is defined in the 1930 Forced Labour Convention as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.60 Yet, before that definition was laid down, a provision dealing with forced labour was included in the 1926 Slavery Convention of which the introductory paragraph reads: The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.

Article 5 of the 1926 Slavery Convention which placed the first limitation on forced labour, reserving it for public purposes only, acknowledges that forced labour could develop into conditions analogous to slavery. As such, it would be in these circumstances, when forced labour became analogous to slavery – becomes, in law, slavery – that it could then be included as a deprivation of liberty in line with the footnote of Element 1, with Element 1 itself, and with the definition of the crime against humanity of enslavement as set out in the Statute of the international Criminal Court. Where “servile status as defined by the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956” is concerned, Article 7(b) of that Convention states that “‘A person of servile status’ means a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention”. Thus, institutions or practices, as considered in depth in Chapter Four, are set out Article 1 of the 1956 Supplementary Convention as debt bondage, serfdom, types of servile marriages, and child trafficking. There is an introductory paragraph to this Article 1, which states that States Parties “shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of [these] institutions and practices”. However, that introductory paragraph continues by stating that the abolition or abandonment of these institutions and practices should 60 Article 2(1), ILO Convention (No. 29) Concerning Forced Labour, 1930.

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take place “where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926”. Thus, it was recognised in 1956 that debt bondage, serfdom, servile marriage or child trafficking, while they should be abolished in their own right could, if they manifest powers attaching to the right of ownership constitute slavery as defined by the 1926 Slavery Convention.61 While an institution or practice may be considered as, for example, child exploitation or servile marriage; if powers attaching to the right of ownership are exercised, such institutions or practices would also be “covered by the definition of slavery” found in the 1926 Convention. The footnote which seeks to clarify the term ‘a deprivation of liberty’ found attached to Element 1 recognises that, in some circumstances, such a deprivation may include forced labour, debt bondage, serfdom, servile marriage or child trafficking. Yet, Element 1 requires that such deprivation of liberty be similar to that manifest when the powers attaching to the right of ownership are exercised against a human being. This is required by a reading of Element 1; but more importantly it is imperative as Article 9(3) of the Statute requires that Elements of Crimes “be consistent with this Statute”, while Article 7(2)(c) of the Statute of the International Criminal Court defines enslavement as “the exercise of any or all of the powers attaching to the right of ownership over a person […]”. Thus, only when a perpetrator exacts forced labour, or reduces a person to debt bondage, serfdom, servile marriage or child trafficking to such an extent that the action degenerates into the exercise of any or all of the powers attaching to the right of ownership will the interpretation of the footnote be in line with the Elements of Crimes and the Statute of the International Criminal Court. Further, with the International Criminal Court holding jurisdiction only where the powers attaching to the right of ownership are present and not when lesser servitudes are at play, means that the Court will also properly exercise its jurisdiction, as per Article 5(1) of the Statute, 61 This was confirmed by the High Court of Australia in its 2008 The Queen v Tang case, when it stated: It is unnecessary, and unhelpful, for the resolution of the issues in the present case, to seek to draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage. The 1956 Supplementary Convention in Art 1 recognised that some of the institutions and practices it covered might also be covered by the definition of slavery in Art 1 of the 1926 Slavery Convention. To repeat what was said earlier, the various concepts are not all mutually exclusive. See Queen v Tang [2008] HCA 39, 28 August 2008, para. 29.

enslavement285 to apply exclusively to “the most serious crimes of concern to the international community as a whole”. Trafficking in Persons In both the definition of enslavement found in the Statute of the International Criminal Court and its elaboration via a footnote attached to Element 1 of the crimes against humanity of enslavement, the phrase ‘trafficking in persons, in particular women and children’ appears. While the primary legislation of the International Criminal Court, its Statute, provides that enslavement may take place in the course of trafficking where the powers attaching to the right of ownership are exercised; Element 1 by way of the footnote goes much further, seeking to make trafficking synonymous with enslavement. The second sentence of the footnote, it will be recalled, reads: “It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.” Where, in the previous section, in the case of ‘a deprivation of liberty’, common Element 1 could be reconciled with the Statute; here, with regard to trafficking in persons, the subordinate legislation goes beyond the confines of the established definition of enslavement as set out in the Statute to include elements which have no relation to the exercise of powers attaching to the right of ownership. Article 7(2)(c) of the Statute of the International Criminal Court reads: ‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

It will be recalled that the latter half of the definition – ‘and includes the exercise of such power in the course of trafficking in persons, in particular women and children’ – does not add to the substance of the definition of enslavement but simply confirms that the powers attaching to the right of ownership may be found in instances of trafficking in persons. As a result, the International Criminal Court, in applying the provisions of Article 7(2)(c) of its Statute, would not be able to exclude ipso facto cases of trafficking from its jurisdiction, but could consider such cases where there is a demonstration of the exercise of the powers attaching to the right of ownership. This is an accurate reflection of the law as it has evolved since the Rome Diplomatic Conference which negotiated the Statute of the International Criminal Court as an international consensus has emerged as to the definition of ‘trafficking in persons’, which is reflected in its appearance in

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both the 2000 United Nations Palermo Protocol and the 2005 Council of Europe Convention in the following identical terms: ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.62

As will be noted from that definition, trafficking in persons consists of three elements, a method (‘the recruitment, transportation, transfer, harbouring or receipt’), a means (threat or use of force, other forms of coercion, abduction, fraud, deception, abuse of power, position of vulnerability, etc.) and a purpose – to exploit a person (‘for the purpose of exploitation [… of which examples are then given]’). Of the types of exploitation enumerated, slavery appears, as does lesser servitudes, including those found in the 1956 Supplementary Convention (via: ‘practices similar to slavery’), forced labour and ‘servitude’ (which has its own standing in international human rights law, see for instance Article 8 of the ICCPR).63 Therefore, only in situations where there is one of the enumerated methods and one of the enumerated means undertaken for the purpose of exploitation, and this exploitation reaches the threshold of manifesting powers attaching to the right of ownership, could an act of trafficking be considered as enslavement as defined in Article 7(2)(c) of the Statute of the International Criminal Court. Having considered trafficking as it relates to the Statute of the Inter­ national Criminal Court, it is now time to turn to the Elements of Crimes. Recalling that common Element 1 reads: The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 62 See Article 3(a), 2000 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women; and Children and Article 4(a), 2005 Council of Europe Convention on Action against Trafficking in Human Beings. 63 Note however, that from a normative perspective no distinction is to be made between the content of institution and practices similar to slavery and servitude; see Chapter Four and Jean Allain, “On the Curious Disappearance of Human Servitude from General International Law, Journal of the History of International Law, Vol. 11, 2009, pp. 303–332.

enslavement287 Here, no mention is made of trafficking in persons. However, at the end of common Element 1, the footnote reads: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.64

That last sentence of the footnote appears to extend the definition of enslavement to not only those powers attaching to the right of ownership which might be present in a case of trafficking but to actually equate trafficking to enslavement. Turning now to consider that final sentence in more detail. This sentence appears rather ambiguous as the first sentence of the footnote provides examples of deprivations of liberty, while the second sentence deals with trafficking. The second sentence is better read as a stand-alone sentence, as the phrase ‘described in this element’ does not refer to the first sentence of the footnote, but to Element 1. Also, the start of the first and second sentences of the footnote point to two distinct considerations (re: ‘It is understood’ and ‘It is also understood’). The final sentence the footnote does not address the notion of ‘deprivation of liberty’ which is at the heart of the first sentence. Instead, the second sentence speaks directly to the elaboration of Element 1, and more specifically to: ‘The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons’. Thus the final sentence of the footnote should be read as: “it is understood that the conduct [the perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons] […] includes trafficking in persons”. In essence then trafficking in

64 The introduction of the clause regarding trafficking in persons was first proposed by Spain at the negotiations of the Preparatory Commission, on the following terms: “Exercise of powers attaching to property ownership in the course of trafficking in persons, in particular women and children”. See Preparatory Commission for the International Criminal Court, Proposal submitted by Spain: Working Paper on Elements of Crimes, Addendum, PCNICC/1999/DP.9/Add.l, 16 February 1999, p. 3. It might be emphasised that towards the end of the negotiations of the Preparatory Commission, Colombia made plain that it considered “it necessary to retain the terminology used in the Statute, that is, to refer explicitly to trafficking in persons in particular women and children. Preparatory Commission for the International Criminal Court, Proposal submitted by Colombia: Comments on the proposals submitted by Canada and Germany on article 7 and by Japan on the ‘structure’ of Elements of Crimes against Humanity, PCNICC/1999/WGEC/DP.41, 6 December 1999, p. 2.

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persons is enslavement. This is a rather different proposition than that found in the definition of enslavement as established Statute, wherein only if powers attaching to the right of ownership are exercised during a case of trafficking in persons is the Court able to assert jurisdiction. As a result, the Elements of Crimes applicable to the crime of enslavement and the crimes of sexual slavery, specifically common Element 1 with its attached footnote goes much further by deeming that where – as per a reading of the definition of trafficking in persons – a method and a means of trafficking is present, that any type of exploitation used would then amount to enslavement. Take the following as an example: where a perpetrator recruits a person by means of fraud for the purpose of the removal of organs, this would amount to enslavement as per the Elements of Crimes via the final sentence of the footnote attached to Element 1. This expanded understanding of enslavement does not appear to conform to the limits of the definition as set out in Article 7(2)(c) of the Statute; and is thus not, in the words of Article 9 of the Rome Statute, “consistent with this Statute”. By equating trafficking with enslavement, the Elements of the Crimes seek to, by the stealth of a footnote, include within the jurisdiction of the International Criminal Court lesser types of exploitation where trafficking is present. This expansion of the definition of enslavement appears to be open-ended as it will be noted that the types of exploitation enumerated in the definition of trafficking in persons are but examples (i.e.: “shall include, at a minimum …”) and appear to be the most egregious types of exploitation. This would leave the possibility of other, lesser, types of exploitation within the context of trafficking in persons open to the jurisdiction of the International Criminal Court.65 One such example might be the trafficking of workers with the intended purpose of paying them less than minimum wage under the menace of being dismissed if they do not accept the terms of employment. While the paying of less than minimum wage would ordinarily invoke an administrative sanction – the paying of back-pay and say a fine in the domestic context; under the Elements of Crimes, the other elements of trafficking being present, would lift this act to the level of the crime against humanity of enslavement. Yet, this is hardly consonant with the more general jurisdictional element of the Statute of the International Criminal Court that provides that only “the

65 See Chapter 8, pp. 350–352 for examples of what States have deemed to be ‘exploitation’ within their domestic anti-trafficking legislation.

enslavement289 most serious crimes of concern to the international community as a whole” be tried. Nor does this case of forced labour meet the threshold, ratione materiae, of the crime of enslavement as manifesting any of the powers attaching to the right of ownership. Special Court for Sierra Leone In 2002 the Special Court for Sierra Leone was established at the prompting of the United Nations Security Council to “prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996”.66 As part of its jurisdiction, the Court was empowered to consider cases of the crime against humanity of enslavement.67 In 2007, the Trial Chamber rendered judgment in the Brima case against three senior members of the Armed Forces Revolutionary Council, one of the factions involved in the Civil War in Sierra Leone. While much of the next Chapter is handed over to examining that case; consideration in this Chapter will focus specifically on the Special Court for Sierra Leone’s finding of enslavement. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, were found guilty of enslavement, having been indicted for the “widespread and large scale abductions of civilians and use of civilians as forced labour”. “Forced labour”, the Indictment continued, “included domestic labour and use as diamond miners”.68 In surveying the established law on the issue, the Trial Chamber of the Special Court for Sierra Leone concluded, by reference to the Krnojelac case before the Yugoslavia Tribunal, that for forced labour to constitute enslavement, “the Prosecutor must demonstrate that ‘the Accused forced the detainees to work, that he exercised any or all of the powers attaching to the right of ownership over them, and that he exercised those powers intentionally’”.69 The Special Court noted that the “crime of ‘enslavement’ has long been criminalised

66 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, 16 January 2002. 67 Article 2(c), Statute of the Special Court, Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone, Annex, 16 January 2002. 68 Brima et als. case, Special Court for Sierra Leone, Trial Chamber, Judgement, SCSL2004-16-T, 20 June 2007, p. 228. 69 Id., p. 230.

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under customary international law” and mentioned the Nuremberg Charter, the International Law Commission and the Draft Code of Crimes against the Peace and Security of Mankind, though it gave no voice to a reading of enslavement broader than set out by the International Criminal Tribunal for the former Yugoslavia or incorporated in the Statute of the International Criminal Court.70 In seeking to set legal parameters around the crime against humanity of enslavement, the Special Court for Sierra Leone adopted as its own element of the crime of enslavement, the one developed by the International Criminal Court: Element 1 of the crime against humanity of Enslavement: The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.71

Thus, the Prosecutor in the Brima case sought to prove that not only were the accused compelling others to labour, but also that the exercise of any or all of the powers attaching to the right of ownership were in evidence. In making such a determination that forced labour amounting to the crime against humanity of enslavement had transpired in the Brima case, the Trial Chamber of the Special Court for Sierra Leone considered those instances where men were abducted, then forced to work in diamond fields. The case of the Tongo Field is instructive, as in some cases, it appears that forced labour was extracted from miners which does not meet the threshold of enslavement, while other labourers were indeed enslaved. While the Trial Chamber does not make this distinction; the facts could have allowed for it. With regard to the miners, anonymous Witness TF1-062 appearing before the Special Court, testified that he and others were compelled by threats and actual violence to spend two ‘government days’ a week mining diamonds.72 While providing their coerced labour on government days, they were free to return to their homes at night and to work other days for their own profit.73 This was distinct from men who were captured. As anonymous Witness TF1-045 stated, these labourers, were undressed, tied together and brought to the mines “where they were forced to work at 70 See id., p. 228–229. 71 See id., p. 230–231. 72 Id., pp. 367–368. 73 See Brima et als. case, Special Court for Sierra Leone, Trial Chamber, Transcripts, 27 June 2005, pp. 27–28.

enslavement291 gunpoint”.74 Beyond the forced labour in diamond mines, the Trial Chamber considered that testimony adduced from Prosecution witnesses demonstrated that individuals were abducted then forced to labour, acting as soldiers and logistical support to the military including acting as porters, carrying ammunition and supplies, but also booty. This is related by Witness DAB-140, who testified that “rebels used to take corrugated iron and doors from people’s houses in Buedu [in the Eastern Province] and force civilians, under threat of violence, to carry the iron to Liberia and the doors to Guinea. Civilians who refused to take loads were beaten or killed”.75 Ultimately, the Trial Chamber found the three accused guilty of the crime of enslavement manifest in forced labour, stating that “the only reasonable inference on the evidence is that the perpetrators inten­ tionally  exercised powers attaching to the right of ownership over the abductees”.76 Conclusion The 1998 Statute of the International Criminal Court narrows the parameters of crime against humanity of enslavement, as against what was the established customary international law, by defining it, in substance, as ‘slavery’ as set out in the 1926 Slavery Convention. It can be foreseen that the establishment of enslavement as being synonymous with slavery in the treaty governing the International Criminal Court and dropping lesser servitudes from the crime as developed through apparent customary law will ultimately mean the withering away of the expansive understanding of enslavement put forward, for instance by the International Law Commission as the crime of ‘establishing or maintaining over persons a status of slavery, servitude or forced labour’. Instead, as more States become party to the Rome Statute and the effect of that treaty and prosecutions materialise, what will emerge is not so much a North Sea Con­ti­ nental Shelf moment where the Rome Statute crystallises a new customary norm of enslavement synonymous with slavery; but instead, that the International Criminal Court would become the reference point for the trying of the crime against humanity of enslavement thus displacing and 74 Brima et als. case, Special Court for Sierra Leone, Trial Chamber, Judgement, SCSL2004-16-T, 20 June 2007, p. 369; See also, Transcripts, 19July 2005, pp. 5. 75 Brima et als., n. 68, p. 387. 76 Id., p. 366.

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ultimately subsuming custom through practice based on the treaty à la Nicaragua. We witness this long shadow already falling over international criminal law, with the Special Court for Sierra Leone turning to the Elements of Crimes of the International Criminal Court in basing its definition of enslavement on the exercise of the powers attaching to the right of ownership. The establishment of this crime against humanity of enslavement provides the legal certainty to ensure a fair hearing by circumscribing its parameters and thus meeting the requirements of fair trial with accused knowing the charges against them. The departure from an expanded reading of the crime of enslavement by the Rome Statute is welcomed; where lesser servitudes – be they forced labour, servile status as set out in the 1956 Supplementary Convention, or trafficking – are at play, they will only fall under the jurisdiction of the Court where they manifest the powers attaching to the right of ownership. This is as it should be, as Article 5(1) of the Statute of the International Criminal Court provides the Court with jurisdiction solely over “the most serious crimes of concern to the international community as a whole”. Thus, where enslavement is concerned, its normative substance is to be found in an understanding of what constitutes the exercise of the powers attaching to the right of ownership. But to explain that understanding, a whole chapter would need to be devoted to the subject. I would thus refer readings back to Chapter Three for a thorough reading of slavery in law.

CHAPTER SEVEN

FORCED MARRIAGE: SLAVERY QUA ENSLAVEMENT AND THE CIVIL WAR IN SIERRA LEONE

In Chapters Three and Six the legal parameters of slavery and enslavement have been set out. In substance, the definition of both such practices focuses on the exercise of powers attaching to the right of ownership. Thus far, the consideration of the parameters of what is, in essence, the same definition in legal terms, has transpired with limited space devoted to the application of that definition to a particular set of circumstances. This Chapter redresses the balance by considering a practice which, while not being termed enslavement or slavery nevertheless, in substance, manifests the exercise of powers attaching the right of ownership. While it should be emphasised that no matter what it might be labelled, a given instance will not constitute enslavement or slavery unless it meets the definitional threshold as set out in the relevant international instrument. In other words, call it what you will, be it: child soldiering, prostitution, serfdom, or servitude, it is not enslavement or slavery unless the facts are such that in substance a person exercises any or all of the powers attaching to the right of ownership over another person. While keeping this proviso close at hand – that an authoritative determination of the existence of a case of slavery or enslavement will require an assessment of the substance of the specific facts of a given case – what will be demonstrated in this Chapter is that the phenomenon of so-called ‘forced marriage’ as it has transpired in the context of the Civil War in Sierra Leone constitutes slavery, thus meeting the definitional threshold of enslavement as set out, for instance, in the Statute of the International Criminal Court. While the focus of this Chapter is Sierra Leone, it is clear that because of the unique circumstances in the African context, this form of enslavement has transpired in other conflicts on the Continent. Those circumstances are two-fold: first, the lack of military logistics surrounding soldiers in the field that move them to enslave women so as to provide basic services and amenities to free them to fight. Thus, these women act as porters, they cook, wash, and maintain a shelter. Yet, these are but the

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banal elements of their fate, as they are subject to a number of international crimes including: sexual violence, to rape and forced pregnancy; but also the near constant threat of murder, torture, mutilation, cruel treatment, and lesser violence. Second, the persistence in time of peace of forced marriages which, though in their most blatant manifestations are abolished by the 1956 Supplementary Convention, have been allowed to persist in certain regions of Africa which has meant that forced marriages has been visited upon women in its mutated form, as enslavement/slavery in the guise of marriage. The preamble of the 1926 Slavery Convention speaks of a desire “to complete and extend the work accomplished” at the 1890 Brussels Con­ ference, which was not only to suppress the slave trade by land and sea, but also to secure “the complete suppression of slavery in all its forms”. In considering slavery within the confines of the 1926 definition the UN Secretary-General acknowledged in a 1953 Report that a practice need not be termed ‘slavery’ for it to be – in law – slavery: It would appear from a study of the International Convention of 1926, and of the preparatory work leading to its adoption, that the obligations of the Parties thereto extend to all institutions or practices, whether or not designated as ‘slavery’, provided that, as stated in Article 1 of the Convention, ‘any or all of the powers attaching to the right of ownership are exercised’ over a person in these institutions or practice”.1

‘Forced marriage’ in times of armed conflict in the African context is a case in point; though not normally designated as slavery, in substance such practice constitutes slavery as in fact there is the exercise of the powers attaching to the right of ownership. As we shall see, in Sierra Leone, such ‘forced marriages’ did not entail the sale of women, or exploitation of their labour for financial benefit; the exercise of the powers attaching to the right of ownership did not take place in the public sphere. That is to say: no transaction or exchange transpired between the ‘owner’ and a third party. However, this does not mean that slavery did not take place. Instead the benefits which were accrued were in the main, in the private sphere, between the man who enslaved and his female victim. In fact, what did transpire was that these women where ‘possessed’ in the property sense of the term. Having lost their personal liberty to their captives, they were then used, as one would a thing, their owners deriving both benefit in 1 United Nations, Economic and Social Council, Report of the Secretary-General on Slavery, the Slave Trade, and Other Forms of Servitude, U.N. Doc. E/2357, 17 January 1953, p. 27.



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terms of these women’s labour, and in terms of forced sexual service. Having established possession, the soldiers could have sold these women, but chose to use them; yet it should be emphasised, the threshold of possession was met and enslavement did take place. Before embarking on a consideration of ‘forced marriage’ during the Civil War in Sierra Leone, it is worth noting that the terms enslavement and slavery are, as noted in the previous chapter, interchangeable as, in substance, they are the same; with the proviso that in the context of an armed conflict the law speaks of enslavement and there are clearly different jurisdictional issues and obligations which flow from slavery in peacetime and enslavement, whether in times of war or not, in international criminal law. The following then is a consideration of a number of instances, which speak to the lived experiences of victims of what the Special Court for Sierra Leone has deemed forced marriage. Sierra Leone In 2007, the Special Court for Sierra Leone was the first court – international, hybrid or otherwise – to find that the practice of ‘forced marriage’ constituted a crime against humanity. In 2004, the Sierra Leone Truth and Reconciliation Commission reported that the conflict in Sierra Leone, which lasted from 1991 until 2002, “was particularly horrific because of the scope and severity of atrocities targeted at civilians. […] The conflict was essentially self-destructive in nature: towns and villages were ravaged; crops and economic installations were destroyed; and a whole generation of Sierra Leoneans were displaced, brutalised and traumatised”.2 Before continuing, it might be noted that the Report of the Truth and Reconciliation Commission bears witness to some of the darkest pages of human history: a simple warning then: that its readings renders the blood cold. Where women – and girls it must be said – are concerned, the Commission notes: Women and girls in Sierra Leone were deliberately targeted by all of the armed groups involved in the conflict in Sierra Leone. They suffered a multiplicity of violations at the hands of their abusers. The violations included a range of sexual crimes such as rape, sexual slavery, forced pregnancy, and other crimes of sexual violence. Women and girls also suffered abductions,

2 Sierra Leone Truth & Reconciliation Commission, Report of the Sierra Leone Truth & Reconciliation Commission, 5 October 2004, Vol. 3B, p. 85.

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chapter seven enslavement, torture and forced labour. Many women and girls were also killed in the most brutal circumstances.3

From the records collected by the Truth and Reconciliation Commission we know that more than 6000 women were abducted during the conflict. These abductions, the Commission noted “placed the victim under the total control of the perpetrator”; and were, in essence, the entrance point to hell on earth: The violation of abduction placed the abductees under the absolute control of their perpetrator grouping, which then gave the perpetrators a licence to commit a range of further violations against the abductees. These violations included being coerced into becoming a combatant, being compelled to perform forced labour, or forced into sexual slavery and forced marriage.4

For thousands of women during the Sierra Leone Civil War, the traumatic experience of the act of adduction was then prolonged and solidified by what came to be termed ‘forced marriage’. The status of a ‘bush wife’ or ‘rebel wife’ – as it was termed colloquially during the conflict – was for the women, a situation which was meant to last an indeterminate time; though from the soldiers’ perspective, such ‘marriages’ could be terminated at a whim and at will. The Truth and Reconciliation Commission deemed the practice “of forced marriage as synonymous with ‘sexual slavery’”.5 While the Commission emphasised the sexual nature of these forced marriage, the sexual access was but one element of the exploitative relationship which transpired. As a former abductee testifying before the Truth and Reconciliation Commission noted: I [was] forcefully married to ‘DU-DU Boy’ as my ‘bush husband’. I was then assigned to the responsibilities of doing all the laundry, cooking their food, ironing their clothes and many other household duties. Most of their clothes had blood stains on them. Some of the female abductees who refused to have sex with them were killed. That gave me the cause to yield to their sexual demands in order to save my life.6

Such testimony mirrored the larger ‘forced marriage’ phenomenon, as women were “given out to combatants, commanders or superiors for the purposes of sex and domestic duties. Women assumed the traditional role

3 Id., p. 136. 4 Id., p. 139. 5 Id., p. 163. 6 For the record, the testimony reported by the Commission by this former abductee concludes with this sentence: “My child had died during my abduction”. Id., p. 139.



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of ‘wives’ to the combatants who captured them”.7 For its part, Human Rights Watch, in an early study related to testimony of sexual violence during the Civil War also noted that ‘forced marriages’ went beyond sexual servitude: Abducted women were made to carry out forced labor during their captivity, including cooking, cleaning, washing clothes, and carrying heavy loads of ammunition and looted items. In many instances, women – intimidated by their captors and the situation they were in – felt powerless to escape their lives of sexual slavery, and were advised by other female captives to tolerate the abuses, ‘as it was war’.8

The Brima Case and Slavery As Forced Marriage Turning now to the work of the Special Court for Sierra Leone and the evidence adduced regarding forced marriage, consideration will focus on the Brima case, as it is here that the Court made the first ever determination that ‘forced marriage’ constituted a crime against humanity. The case itself related to charges brought against three individuals, Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, all senior members of Armed Forces Revolutionary Council (AFRC) – former members of the Armed Forces of Sierra Leone – which staged a coup d’état in 1997, forming a Junta which would later include the Revolutionary United Front (RUF), the original instigators of the Sierra Leone Civil War. The three individuals, who where the senior commanders in Kono District of Eastern Province of Sierra Leone, bordering on Guinea, were charged with crimes against humanity and war crimes under a number of headings which included: terrorising the civilian population, unlawful killings, use of child soldiers, looting and burning, forced labour, as well as sexual violence.9 The Indictment of the Brima case follows the three perpetrators as they moved in February 1998 from Kono District all the way across the breadth of the country to Freetown by April 1999. With regard to acts of sexual violence, it was charged that Brima, Kamara and Kanu had command/superior responsibility over AFRC/RUF forces which “raped an unknown number of women and girls”. The charges continue: “In addition 7 Id., p. 164. 8 Human Rights Watch, ‘We’ll Kill you if you Cry’: Sexual Violence in the Sierra Leone Conflict, 2002, Vol. 15, No. 1(A), pp. 43–44. 9 See Brima et als. case, Special Court for Sierra Leone, Prosecutor, Further Amended Consolidated Indictment, Case No. SCSL – 2004-16 PT, 18 February 2005.

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an unknown number of women and girls were abducted and used as sex slaves and/or forced into ‘marriages’ and/or subjected to other forms of sexual violence. The ‘wives’ were forced to perform a number of conjugal duties under coercion by their ‘husbands’”.10 During the deliberations of the Brima trial proceedings, Mrs. Zainab Bangura, an expert for the Prosecution, reported that: the most devastating effect on women of the war was the phenomenon called ‘bush wife’, ‘rebel wife’ or ‘jungle wife’. This was a phenomenon adopted by rebels whereby young girls or women were captured or abducted and forcibly taken as wives […]. The use of the term ‘wife’ by the perpetrator was deliberate and strategic. The word ‘wife’ demonstrated a rebel’s control over a woman. His psychological manipulations of her feelings rendered her unable to deny him his wishes. ‘Wife’ showed that the woman belonged to a man and could not be touched by another. By calling a woman ‘wife’, the man or ‘husband’ openly staked his claim and she was not allowed to have sex with any other person. If she did, she would be deemed unfaithful and the penalty was severe beating or death. Similarly if the ‘wife’ were raped by another rebel, his act was punishable by death.  ‘Bush wives’ were expected to carry out all the functions of a wife and more. A ‘bush wife’ carried her ‘husband’s’ possessions on her head and trekked across the countryside with him; she was expected to gratify her ‘husband’s’ sexual wishes whenever he so desired without question; she cooked for him when food was available, did his laundry and generally protected his possessions in his absence; she was expected to show undying loyalty to her husband for his protection and reward him with ‘love and affection’; she was not expected to attempt to escape as this was deemed disloyal. Punishment for disloyalty was always severe and so, women were led to believe, in most cases would be met with death.11

The Special Court for Sierra Leone did not hesitate in finding that forced marriage transpired during the Civil War and that the three accused were guilty beyond the standard of proof of a reasonable doubt. That said, the Trial Chamber was not unanimous, nor was the Appeals Cham­ ber in agreement with the majority of the Trial Chamber as to what crime, under its Statute, the practice of ‘forced marriage’ should be characterised. While the Prosecution charged Brima, Kamara and Kanu with forced marriage, as the crime against humanity of ‘sexual slavery and any other form of sexual violence’, the Trial Chamber, in its Judgment of June 2007, 10 Id., pp. 13–14 11 Brima et als. case, Special Court for Sierra Leone, Appeals Chamber, Judgment, SCSL2004-16-A, 22 February 2008, p. 63.



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dismissed the charge “in its entirety” as being “bad for duplicity”.12 In its final submission at trial, the Brima and Kamara Defence submitted that the setting out of two different offences in one count of the Indictment was prejudicial to their rights as accused, as they did not know which of the two crimes they should be defending themselves against: ‘sexual slavery’ or ‘any other form of sexual violence’. As a result, the Defence alleged that the Indictment in its “current form has made it difficult for the Accused to fully understand the nature and the cause of the charges brought against them”.13 The Trial Chamber agreed; as a result, the count related to the crime against humanity of ‘sexual slavery and any other form of sexual violence’ was struck from the Indictment. The Trial Chamber further rejected the Prosecution contention that forced marriage was to be deemed a crime against humanity under the heading of ‘other inhuman acts’, which it said, would have required the Prosecution to establish a non-sexual element to the crime, thus distinguishing it from sexual slavery. Having apparently closed the door on a finding of forced marriage, the Trial Chamber rescued itself, stating that in fact, the “evidence adduced by the Prosecution” with regard to crime of forced marriage “is completely subsumed by the crime of sexual slavery”. As a result, and keeping in mind the fact that it had found the count of ‘sexual slavery and any other form of sexual violence’ to be “bad for duplicity”, the Trial Chamber decided “in the interests of justice”, it would consider the evidence of sexual slavery under another heading.14 As a result of these procedural acrobatics, the Trial Chamber settled on the substance of forced marriage, being manifest not as the crime against humanity of either ‘sexual slavery’ or ‘other inhuman acts’. Instead, and basing itself on the fact that the Prosecution had argued it in the alternative, the Trial Chamber found that forced marriage was not to be deemed a separate crime, but instead that it would be subsumed within the crime of sexual slavery, which could then be considered under the heading of ‘outrage upon personal dignity’ and thus fall within the jurisdiction of the Special Court as a war crime.15 In assessing the evidence before it on the basis of time periods in specific locations, the Trial Chamber provided examples of forced marriage,

12 Brima et als. case, Special Court for Sierra Leone, Trial Chamber, Judgement, SCSL2004-16-T, 20 June 2007, p. 48. 13 Id., p. 47. 14 Id., p. 220. 15 Id., p. 222.

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though under the heading of sexual slavery as the war crime of ‘outrage upon personal dignity’. The following are but a few examples; the first drawn from Kono Distinct during the prior from February 1998 to June 1998: The Trial Chamber is of the opinion that witness TF1-334’s testimony that women were captured; that captured civilians who tried to escape were executed; that captured women were placed under the ‘full control’ of commanders and became their ‘wives’; and that these women cooked for the commanders and other soldiers is indicative of the deprivation of the captured women’s liberty and the exercise of ownership over them by members of the AFRC. The Trial Chamber is also satisfied on the evidence of the witness, namely that the women were ‘used sexually’ and that soldiers, including himself, had sexual intercourse with captured women, that acts of sexual violence were committed against the captured women. The Trial Chamber infers from the environment of violence and coercion that the women did not consent to these sexual acts. The Trial Chamber is thus of the opinion that the actus reus and mens rea elements of the crime of sexual slavery are satisfied on the basis of this evidence.16

The second example, is in fact a set of examples drawn from the time period between February 1998 and October 1998 in Koinadugu District: The Trial Chamber is of the opinion that the witness’s testimony of her forcible abduction; the murder of her parents in her presence which established a context of fear and violence; her fear that she too would be killed if she did not have sex with ‘Andrew’; the extraction of her forced labour by ‘Andrew’, namely laundering and other chores; the use of the term ‘wife’; and her detention with the troops for approximately four to five months as they travelled through Koinadugu District to Bombali District are all indicative of the deprivation of her liberty and the exercise of ownership over her person by ‘Andrew’ which together with acts of sexual violence, namely, ‘Andrew’s’ repeated rape of the witness and her subsequent pregnancy, satisfies the actus reus and mens rea elements of the crime of sexual slavery.17

And The Trial Chamber is satisfied on the evidence of witness TF1-133 that women captured in Koinadugu District were subject to repeated rape by members of the AFRC/RUF; were made to labour for members of the AFRC/ RUF, namely to cook, launder clothes and wash dishes; were labelled as ‘wives’, in this context a label of possession, and placed in exclusive relationships of ownership by certain rebels; were punished with physical violence

16 Id., p. 316. 17 Id., p. 318.



forced marriage301 if the exclusive sexual relationship was violated; and were detained at rebel bases in Krubola and Serekolia and made to travel together with the troops; are all indicative of the deprivation of liberty and the exercise of ownership over captured women together with acts of sexual violence satisfying the actus reus and mens rea of the crime of sexual slavery.18

Ultimately, the Trial Chamber best summed up its understanding of sexual slavery in considering the assertion of the Prosecution that this crime was perpetuated so as to ‘spread terror among the civilian population’ – that is: as constituting a further crime set out in the Indictment. The response of the Trial Chamber to this charge was that: in the particular factual circumstances before it, the primary purpose behind commission of sexual slavery was not to spread terror among the civilian population, but rather was committed by the AFRC troops to take advantage of the spoils of war, by treating women as property and using them to satisfy their sexual desires and to fulfil other conjugal needs.19

It will be recalled that the determination by the Trial Chamber that cases of forced marriage were to be subsumed in the evidence of sexual slavery as the war crime of ‘outrage upon personal dignity’ was a determination by a simple majority; as Justice Doherty dissented. For Justice Doherty, forced marriage was of sufficient gravity to constitute a crime against humanity under the heading of ‘other inhumane act’. Having considered the submissions of the parties, expert evidence, and witness testimony; Justice Doherty found that: the intention of the ‘husband’ was to oblige the victim to work and care for him and his property, to fulfil his sexual needs, remain faithful and loyal to him and to bear children if the ‘wife’ became pregnant. In return, he would protect the ‘wife’ from rape by other men, give her food when food was available and, depending on his status, confer a corresponding status upon the wife. In effect, these are rights and obligations of the type referred to by the Defence expert as being involved in traditional marriages but in there is no agreement of the family or kin of the ‘wife’ and the status is forced by violence or coercion upon the female partner.  I would therefore distinguish the phenomenon from sexual slavery. The evidence of witnesses shows that victims had no protection from rape and were available to any rebel but were not stigmatised as ‘rebel wives’ or ‘bush wives’.  Additionally, I am satisfied on the basis of the testimony of the Prosecution expert witness that the use of the term ‘wife’ is indicative of forced marital 18 Id., p. 321. 19 Id., p. 409.

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Justice Doherty summarised her understanding of forced marriage in the following terms: “The crucial element of ‘forced marriage’ is the imposition, by threat or physical force arising from the perpetrator’s words or other conduct, of a forced conjugal association by the perpetrator over the victim”.21 In February 2008, the Appeals Chamber of the Special Court for Sierra Leone rendered its judgment in the Brima case. Included in the appeal was a Prosecution challenge to the Trial Chamber’s dismissal of the count of forced marriage as being subsumed by the crime of sexual slavery. In the first instance the Appeals Chamber admonished the Prosecution, as it “may have misled the Trial Chamber by the manner in which forced marriage appeared to have been classified in the Indictment” as a sexual violence. Though, being rather benevolent, the Appeals Chamber decided to 20 Brima et als. case, Special Court for Sierra Leone, Partly Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (‘Forced Marriages’) as found in Trial Chamber, Judgement, SCSL-2004-16-T, 20 June 2007, p. 590. Note that Justice Doherty went on to consider forced marriage as a crime against humanity, concluding, at p. 594, that: By vitiating the will of one party and forcing him or her to enter into and remain in a marital union the victim is subject to physical and mental suffering the phenomenon of forced marriage transgresses the internationally accepted conventions that both parties must consent to a marriage. It is contrary to principles of criminal law shared by common law and civil law systems alike, as well as Islamic law and the legal systems of some Asian and African states. I consider, on the evidence before me, that the act of forced marriage is of similar gravity and nature to the other enumerated crimes against humanity and that the act causes serious bodily or mental harm. Accordingly, I consider and hold that forced marriage constitutes a crime against humanity. The Sierra Leone Truth & Reconciliation Commission had the following to say about the protection afforded to women in such forced marriages: While victims experienced some degree of protection as the exclusive property of one perpetrator through a “forced marriage”, the relationship in most instances was entirely abusive. Most victims who spoke to the Commission nevertheless suffered some manifestations of the so-called ‘Stockholm syndrome’, i.e. they tended in their testimonies to identify with their perpetrators and would insist that they had been treated well even though many of the experiences they were describing tended to be abusive. The economy of war also required that women make themselves useful to their captors or “bush husbands” in order to survive. See n. 2, p. 173. 21 Brima et als. case, n. 12, p. 501.



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consider the appeal not necessarily on its own merits, but “as an issue of general importance that may enrich the jurisprudence of international criminal law”.22 That said, the Appeals Chamber, having earlier stuck the knife in; decided to turn it: “Based on the evidence on record, the Appeals Chamber finds that no tribunal could reasonably have found that forced marriage was subsumed in the crime against humanity of sexual slavery”.23 Apparently having found that its trial chamber colleagues were unreasonable, the Appeals Chamber moved to set the record straight: While forced marriage shares certain elements with sexual slavery such as non-consensual sex and deprivation of liberty, there are also distinguishing factors. First, forced marriage involves a perpetrator compelling a person by force or threat of force, through the words or conduct of the perpetrator or those associated with him, into a forced conjugal association with a another person resulting in great suffering, or serious physical or mental injury on the part of the victim. Second, unlike sexual slavery, forced marriage implies a relationship of exclusivity between the ‘husband’ and ‘wife’, which could lead to disciplinary consequences for breach of this exclusive arrangement. These distinctions imply that forced marriage is not predominantly a sexual crime. The Trial Chamber, therefore, erred in holding that the evidence of forced marriage is subsumed in the elements of sexual slavery.24

The Appeals Chamber then moved to summarise its understanding of forced marriage: “the Appeals Chamber finds that in the context of the Sierra Leone conflict, forced marriage describes a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim”.25 Having distinguished forced marriage from sexual slavery, the Appeals Chamber determined that: “acts of forced marriage were of similar gravity to several enumerated crimes against humanity including enslavement, imprisonment, torture, rape, sexual slavery and sexual violence”. As such, and while acknowledging that it could render judgment is such a way as to set out cumulative convictions on the basis of the same facts for a determination of both a violation of the provisions of ‘outrages upon personal dignity” as a war crime and of “other inhumane acts” as a crime against 22 Brima et als. case, Special Court for Sierra Leone, Appeals Chamber, Judgment, SCSL2004-16-A, 22 February 2008, p. 58. 23 Id., p. 64. 24 Id. 25 Id., p. 65.

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humanity; the Appeals Chamber elected not to. Instead, in granting the Prosecution’s appeal, the Appeals Chamber opted for a determination of forced marriage as a crime against humanity: The Appeals Chamber is convinced that society’s disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread or systematic attack against the civilian population, is adequately reflected by recognising that such conduct is criminal and that it constitutes an ‘Other Inhumane Act’ capable of incurring individual criminal responsibility in international law.26

While the Special Court for Sierra Leone ultimately determined that forced marriage was a crime against humanity which is manifest in a coerced conjugal partnership; it is clear that between it, the Prosecution, the Trial Chamber and Justice Doherty, there existed a number of understandings as to what in law the forced marriage phenomenon constituted in the context of the Civil War in Sierra Leone. It should be recalled that the determination of any court is based on the evidence adduced at trial. In the context of the Brima case, the Prosecution led evidence seeking to place the practice of forced marriage within the context of sexual violence under the heading of ‘sexual slavery and any other forms of sexual violence’. The juridical acrobatics that were then needed to overcome the procedural error of duplicity found in the Indictment meant that the judges spent much of their time seeking to characterise forced marriage as one or another type of crime. As a result, the jurisprudence developed by the Special Court for Sierra Leone has not settled the question as to the nature of so-called ‘forced marriage’ as an international crime. With this in mind, consideration will now turn to examining the phenomenon of forced marriage in the context of the armed conflict in Sierra Leone, so as to demonstrate that if one goes beyond the form – that is: what it is called – and look to the substance of the relationship, it must be acknowledge that what was transpiring in cases of so-called ‘forced marriage’ was not a marriage, forced or otherwise, but slavery. Forced Marriage As Slavery Before turning to the form of the relationships which the Special Court for Sierra Leone deemed in the final analysis as a ‘conjugal association’, which manifest itself as the crime against humanity of forced marriage, it is 26 Id., pp. 66–67.



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worth consider whether in fact, forced marriage is a crime internationally. It should be recognised that in the first instance, international law does not outlaw forced marriage; where it does prescribe regulation is with regard to forced weddings. So then, international law concerns itself only with the consent upon entry into marriage, but is silent with regard to the continued consent throughout the life of the marriage. Article 16(2) of the 1948 Universal Declaration of Human Rights set out the norm a follows: “Marriage shall be entered into only with the free and full con­ sent  of the intending spouses.” While the substance of this provision is reproduced as law in the 1966 International Covenant on Civil and Politi­ cal Rights, the most recent expression of the law is found in the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which considers the issue through the lens of discrimination at its Article 16(1): States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:  (a) The same right to enter into marriage;  (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; […].

Thus, in international law, the notion of ‘forced marriage’ does not exist. The norm is expressed not in the negative, but positively as the right to choose, to consent to marriage. Despite this, the notion of ‘forced marriage’ is utilised, as the UN Secretary-General did in 2007, as shorthand for the provisions related to weddings: “In recent years, the issue of forced marriage, that is to say, the case where the free and full consent of at least one of the parties to a marriage is lacking, has gained the attention of the international community”.27 While the provisions of CEDAW are the most recent legal expression of the norm, a specific elaboration of provisions dealing with what is, in essence, weddings, is the 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, which at Article 1(1) states: “No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law”. 27 United Nations, Economic and Social Council, Report of the Secretary General, Forced Marriage of the Girl Child, UN Doc. E/CN.6/2008/4, 5 December 2007, p. 3.

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The genealogical source of that provision and all that follows is found, rather interestingly, in considerations related to slavery dating back to 1924 and the League of Nations Temporary Slavery Commission. The examination of what was in the first instance that of the “acquisition of girls by purchase disguised as payment of dowry” would later be taken up as provisions in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, related to of servile marriage – that of bride price, transfer of wives, and inheritance of widows; the substance of which has already been considered in Chapter Four. However, of relevance here is that during the diplomatic conference negotiating the 1956 Supplementary Convention, it was agreed that a further provision was necessary so as to precipitate the end of such servile marriages. As a result, Article 2 of the 1956 Supplementary Convention requires that “States Parties undertake to prescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages”. While some delegates wished to go further, specifically with regard to prescribing a minimum age of consent, it was agreed that the Diplomatic Conference, meant to draft an instrument to supplement the 1926 Slavery Convention, was not the proper forum for “writing law in relation to marriage”.28 Instead, the Con­ ference negotiating the 1956 Supplementary Convention recommended that the United Nations consider the issue: Recommends to the Economic and Social Council to consider the appropriateness of having undertaken a study of the question of marriage, with the object of drawing attention to the desirability of free consent of both parties to a marriage and of the establishment of a minimum age for marriage, preferably of not less than 14 years.29

It was this Recommendation which started the United Nations, via its Economic and Social Council, down the path towards the 1962 Convention 28 United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Summary Record of the Twentysecond Meeting, 31 August 1956, UN Doc E/CONF.24/SR.22, 20 November 1958, p 5. For context see: Jean Allain, The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention, 2008, p. 349. 29 See United Nations, Economic and Social Council, United Nations Conference of Plenipotentiaries on a Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Portugal: Draft resolution, UN Doc E/CONF.24/L.45/Rev.1, 3 September 1956.



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on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages which, in turn, found provisions related to consent to wed in both the 1966 Covenant and the 1979 CEDAW. Thus, it is worth repeating, that in international law there is no provision, per se, which prohibits forced marriage. Instead, in fact, the term is used to reflect what is: in essence, the legal right to enter a marriage – to wed – through “free and full consent”. Turning now to consider the form of those relationships which the Special Court for Sierra Leone termed ‘conjugal association’, it can be said that the Special Court for Sierra Leone has, on two counts, done a disservice to the institution of marriage by labelling what transpired during the Civil War in Sierra Leone as forced marriage. In the first instance such ‘marriages’ were a characterisation which emerges from the condition which was foisted upon the victims by the perpetrators. It was the soldiers who labelled these relationships as ‘marriages’, the women as their ‘wives’. This raises a number of questions: In what other circumstances do we allow the criminal to name the crime? Do we allow the thief to call it ‘borrowing’; the murderer to call it ‘mercy killing’? As such, are we to accept that what transpired in Sierra Leone was a marriage, forced or otherwise, because the soldiers called it so? This is rather disturbing as stereotypical on a superficial level, but maybe more troubling, as it is patriarchal at a deeper, hegemonic level, in that the term became established beyond the field of battle. Beyond this reason for not accepting such terminology, a second justification for rejecting the nomenclature of ‘marriage’ in ‘forced marriage’ is that there exists an international legal obligation, under Article 23 of the International Covenant on Civil and Political Rights, to protect the family, of which the entry point is deemed marriage. While we have seen a fragmentation of traditional marriage in contemporary society; unions be they common-law or otherwise, remain the gateway to the founding of a family. For its part, the 1966 Covenant maintains that the “right of men and women of marriageable age to marry and to found a family”; and that the “family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.30 It would appear that this fundamental truth still holds: that marriage – the union of two people – as the precursor to children and the building of a family – remains, in the vast majority of cases world-wide, in law and in fact, the ‘fundamental 30 Articles 23(2) and (1), 1966 International Covenant on Civil and Political Rights.

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group unit of society’. States then have an obligation to protect the family, as set down in Article 17 of the Covenant, from “arbitrary or unlawful interference”. But also, the family is protected and supported in a number of manners in society, by State-prescribed tax incentives, labour regulations, schooling, and various other areas which in large part frame the very societies we live in. What is being argued here is a more fundamental protection of the institution of marriage as the building-block of the family which, in turn, in the awkward language of the Covenant, is deemed the ‘fundamental group unit of society’. By utilising the term ‘marriage’ to describe what transpired in Sierra Leone in cases of forced marriage is an attack against the very institution of marriage which, through its direct link to the family, creates, in international law, both a statist and societal obligation to protect. As such, protection should have been afforded to the victims of such ‘forced marriages’ through the disavowing of the language of the perpetrators, in recognising that the crime was in no way a conjugal association or a marriage in the sense of a unit which is fundamental to building a family and, by extension, to a society worthy of living in. During the Sierra Leone conflict, the forced labour visited on women while captive in a situation of ‘forced marriage’ was, in the words of Justice Sebutinde, “stereotyped, gender-specific forms of labour” which she set out as to “cook, clean, wash clothes and have sex”.31 This, in the determination of the Appeals Chamber constituted a ‘conjugal association’, as it recognised, that: There is substantial evidence in the Trial Judgment to establish that throughout the conflict in Sierra Leone, women and girls were systematically abducted from their homes and communities by troops belonging to the AFRC and compelled to serve as conjugal partners to AFRC soldiers. They were often abducted in circumstances of extreme violence, compelled to move along with the fighting forces from place to place, and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the ‘husband’, endure forced pregnancy, and to care for and bring up children of the ‘marriage’. In return, the rebel ‘husband’ was expected to provide food, clothing and protection to his ‘wife’, including protection from rape by other men, acts he did not perform when he used a female for sexual purposes only. As the Trial Chamber found, the relative benefits that victims of forced marriage received

31 Brima et als. case, Special Court for Sierra Leone, Separate Concurring Opinion of the Hon. Justice Julia Sebutinde Appended to Judgment pursuant to Rule 88(c), as found in Trial Chamber, Judgement, SCSL-2004-16-T, 20 June 2007, p. 576.



forced marriage309 from the perpetrators neither signifies consent to the forced conjugal association, nor does it vitiate the criminal nature of the perpetrator’s conduct given the environment of violence and coercion in which these events took place.32

The quid pro quo manifest in these relationships: women provided everything the man desires and he will provide her with food (so as to keep her alive, thus ensuring that she continues to provide him with everything he desires) and will maintain his exclusive, non-consensual, right to her body is hardly the thing of marriage. What all those involved in the Brima case before the Special Court for Sierra Leone understood by marriage was – albeit stereotypical – the outwards manifestation of marriage. Yet the union of marriage is not about cooking, cleaning or sex, any more than it is about being a bread winner, handyman or about sex. Marriage is – dare it be said in a study of international law – about inward manifestations of love, respect and an acknowledgement that in a union; in living a life together and raising children, is an acknowledgement that we are better off together than apart. It is an affront to victims and to the very concept of marriage that in the final instance, the Special Court for Sierra Leone deemed relationships where a woman was abducted, raped, forced to porter, cook, clean, and launder, under constant threat of violence and death as being a ‘conjugal association’, forced or otherwise. Having challenged the form of the relationship which transpired under what the Special Court for Sierra Leone termed ‘forced marriage’, consideration now turns to the substance so as to demonstrate that what took place during the Civil War in Sierra Leone was not the taking of a ‘bush brides’ or ‘rebel wives’, but was, in law, the enslavement of women. Whether in times of peace or armed conflict, incidents of slavery or enslavement are in essence the same; that is: they require the manifestations of the exercise by one person of the powers attaching to the right of ownership over another person. Various authoritative bodies have considered the substance of what constitutes slavery in law. The judgment of the High Court of Australia in the 2008 Tang case does well to spell out two possible approaches which can be utilised in seeking to outline the substance of what constitutes the powers attaching to the rights of ownership. The first approach, taken by the majority of the Court in the judgment rendered by the Chief Justice, Gleeson CJ., is positivist in nature. In setting 32 Brima et als. case, Special Court for Sierra Leone, Appeals Chamber, Judgment, SCSL2004-16-A, 22 February 2008, p. 62.

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out the understanding of the Court as to what constituted the powers attaching to the right of ownership, the Chief Justice, having surveyed international jurisprudence and considered the drafting history of the 1926 Convention, based the Court’s determination on considerations made by the UN Secretary-General in a 1953 Report, wherein he out­ lined  such powers attaching to the right of ownership as including the following: 1. the individual of servile status may be made the object of a purchase; 2. the master may use the individual of servile status, and in particular his capacity to work, in an absolute manner, without any restriction other than that which might be expressly provided by law; 3. the products of labour of the individual of servile status become the property of the master without any compensation commensurate to the value of the labour; 4. the ownership of the individual of servile status can be transferred to another person; 5. the servile status is permanent, that is to say, it cannot be terminated by the will of the individual subject to it; 6. the servile status is transmitted ipso facto to descendants of the individual having such status.33

For the High Court of Australia, Gleeson CJ., tracks the Secretary-General language in writing: In this case, the critical powers the exercise of which was disclosed […] by the evidence were the power to make the complainants an object of purchase, the capacity, for the duration of the contracts, to use the complainants and their labour in a substantially unrestricted manner, the power to control and restrict their movements, and the power to use their services without commensurate compensation.34

By contrast, in his Concurring Judgment, Hayne J. took a more normative, philosophical, approach in seeking to understand what the powers attaching to ownership might entail when exercised as against a person. For Hayne J., this precluded ‘ownership’ being read “as a technical legal term”, instead he noted that the term “must be read as conveying the ordinary English meaning that is captured by the expression ‘dominion over’ the subject matter”.35 In exercising powers of ownership, Hayne J. writes, “one 33 United Nations Economic and Social Council, Slavery, the Slave Trade, and other forms of Servitude (Report of the Secretary-General), UN Doc. E/2357, 27 January 1953, p. 28. 34 The Queen v Tang [2008] HCA 39, 28 August 2008, p. 22. 35 Id., p. 60.



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person would have dominion over that other person. That is, the powers that an owner of another person would have would be the powers which, taken together, would constitute the complete subjection of that other person to the will of the first”.36 To understand what this subjugation might entail, Hayne J. explored what he considers the antithesis of slavery: freedom of choice. Hayne J. writes: One, and perhaps the most obvious, way in which to attempt to give practical content to the otherwise abstract ideas of ownership or possession (whether expressed by reference to subjection, dominion or otherwise) is to explore the antithesis of slavery. That is, because both the notion of ownership and of possession, when applied to a person, can be understood as an exercise of power over that person that does not depend upon the assent of the person concerned, it will be relevant to ask why that person’s assent was irrelevant. Or, restating the proposition in other words, in asking whether there was the requisite dominion over a person, the subjection of that person, it will be relevant to ask whether the person concerned was deprived of freedom of choice in some relevant respect and, if so, what it was that deprived the person of choice.37

Presented in this way, Hayne J. forced one to asking probing questions about the nature of the relationship which is slavery, and how it might then be translated back into a manageable legal understanding which draws a distinction between slavery and lesser servitudes in a court of law. It would appear that the unifying elements of the understanding of slavery as considered by various international and domestic courts which have sought to engage with the 1926 definition of slavery is to abstract the instances of ownership in such a way as to demonstrate the near to full control of a person over another, which then allows for their exploitation. This deprivation of ‘freedom of choice’ which Hayne J. speaks of is acknowledged by the legislation of the International Criminal Court which spells out the 1926 definition of slavery then continues by saying that enslavement will also be manifest where there is the imposing of “a similar deprivation of liberty”.38 At its root, the inability to govern oneself, to exercise free will is the benchmark for determinations of slavery. Where slavery may be distinguished from lesser servitudes will be based on the degree to which personal autonomy is diminished. Where an individual will be forced to labour, to provide sexual services, or to repay a debt 36 Id. 37 Id., p. 62. 38 See Assembly of States Parties to the Rome Statute of the International Criminal Court, “Elements of the Crimes”, ICC-ASP/1/3, 3–10 September 2002, p. 117.

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which appears to be never ending, is to lose autonomy, not over oneself, but over one’s labour. Freedom to choose may be curtailed in the domain of employment: the how, what, where, and for whom of labour or service; but the person found in such servitude can walk away. They go home at night, but feel compelled in the morning to get up and return to their exploitive work. Drawn to return by coercive means, they make a determination that it is better to continue in this exploitive relationship than to suffer the economic, psychological or legal coercion, or physical violence which is threatened or used against them to maintain their servile status. It is the lesser of two evils. By contrast, in legal terms, the degree of diminution of personal liberty, or freedom of choice of the person governs more than the working day of the enslaved. The significance of that loss of free will be such that the person enslaved is controlled as one would a thing owned. The subjugation is such that a person is possessed by another: their free will has been taken from them and is now exercised by another. Thus, not only might a person control one’s labour, but controls the near totality of the individual’s life: where they live, how they live and why they live. Control amounting to possession will be of such a severe nature and extent that the enslaved can be commodified. Fundamental to this commodification of a person – which will be manifest in the various powers attaching to the right of ownership – will be the control of another person as one would, as in the law of property, possess a thing. Though developed more thoroughly in Chapter Three the powers attaching to the right of ownership are as follows: first, that control tantamount to possession over a person needs to be established, and with such control in place acts of using, managing, profiting, transferring or disposing of a person will constitute slavery. For the sake of emphasis, underpinning each of these instances of ownership is ‘possession’. Pos­ session, it must be said is foundational to an understanding of the legal definition of slavery. What should be understood by possession where an individual is enslaved, is the manifestations of control to such an extent that the person loses the capacity to exercise autonomy for a period of time which is, for him or her, indeterminate. Normally, enslavement will take place through violence and slavery itself will be maintained through violence, threats of violence, or coercion. Controlling a person as one would possess a thing, allows for the exercise of the other powers attaching to the right of ownership, as the slave can then be used for personal benefit, whether it be for sexual gratification, service or labour, or for economic gain.



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In the case of the Civil War in Sierra Leone it will be recalled that the Special Court did in fact recognise that slavery took place with regard to forced labour amounting to the crime against humanity of enslavement in the Tongo Field. Despite having recognised that enslavement transpired with regard to men in the diamond fields of Sierra Leone, the Trial Chamber focused on the crime of ‘sexual slavery’ in considering issues of the fate of women and ‘forced marriage’. While it may be said that the evidence adduced at Trial in the Brima case indicates manifestations of slavery as a result of the attempt by the Prosecution to prove the crime of sexual slavery had transpired, this does not negate the language used to describe instances of ‘forced marriage’ by witnesses at trial. Nor does it negate the language used by victims telling their stories previous to the sitting of the Special Court for Sierra Leone. In its 2002 Report, Human Rights Watch, demonstrated the language which was used to explain what was transpiring in cases of ‘forced marriage’: “Abducted women and girls described being ‘given’ to a combatant who then took them as their ‘wives’”.39 Refusal was not an option as a further witness, M.M., recounted: “A rebel commander wanted my aunt to be his wife but she refused so he killed her”.40 Further, the introduction into ‘marriage’ was often horrific and brutal, as M.F. describes: I was only thirteen and a virgin. They forced me to go down on my hands and knees with my bottom in the air and raped me both vaginally and anally. Five rebels raped me on that first day. My clothes were bloodied and it hurt to urinate and defecate afterwards. The rebels who raped me promised to take me to Freetown and give me money and dresses. They gave me nothing after they used me. I was given to one of them, Mohammed, as his wife.41

Once ‘married’, things did not necessarily improve, as T.B., a woman from Freetown noted: “After that I was taken as a wife by a commander called ‘Bird Bod’ who was in his thirties. He raped me every day. They were always on drugs. He said he didn’t have a wife so I cooked and washed for him. He roughed and beat me and used to put his fingers violently up inside me”.42 In each instance, the taking and maintaining of a ‘wife’ was a result of the loss of personal autonomy of the women involved, who were violently 39 Human Rights Watch, ‘We’ll Kill you if you Cry’: Sexual Violence in the Sierra Leone Conflict, 2002, Vol. 15, No. 1(A), p. 42. 40 Id., p. 30. 41 Id. 42 Id., p. 38.

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coerced into fulfilling tasks required by the soldiers who had taken possession of them. At trial, during the Brima case, witnesses spoke of this loss of autonomy and the manner in which ‘husbands’ came to possess their slaves: a former soldier testified, stating: “Well, the women, especially the beautiful ones, they were under the full control of the commanders and, indeed, they became their wives. They were cooking our food for us and the other soldiers who were in Kono”. When questioned by the Prosecution as to what was meant by ‘serving’ the commanders as wives, the witness responded: “Well, since they were unmarried and they were captives, they used them sexually”.43 During his later testimony, the witness spoke of a move to a temporary base in Karina, North-West Sierra Leone, and when asked about the fate of thirty-five captured women, he stated: “Well, as these women were under the command of Five-Five, later some of the soldier men who were in the various companies requested that they should be given these women so that they can be under their own control”. This request was heeded by the Commander, who required that the soldiers sign, to take possession of the women. When asked what happened to these women once they had been signed for, the witness stated: “Well, Five-Five handed them over to these soldiers who had signed for them”, and once handed over these women became “wives to these soldiers”.44 A further witness, this time a female victim, stated that after she had been captured in an attack against her village, she and two other women were “given to men”. When asked by the Prosecution what this meant, she responded that the rebel commanders “took them as their wives. They were given to them as wives”. When asked what was meant by the term ‘given’, the witness testified that this mean that they “slept with them” and “laundered clothes and washed the dishes”.45 The witness went on to speak of the exclusive sexual access which was established toward newly designated ‘wives’ once they were given to their new ‘husbands’. When the Prosecution asked if the witness knew whether these ‘wives’ had sexual intercourse “with anyone else after they were handed over?”, she responded that these men “would be the sole owner of her”. The witness went on to explain that this notion of ownership was based on a law that was made in her presence. She explained that the elders determined that “you cannot 43 Brima et als. case, Special Court for Sierra Leone, Trial Chamber, Transcripts (Witness TF1-334), SCSL-04-16-T, 20 May 2005, pp. 5–6. 44 Id., pp. 75-77. 45 Brima et als. case, Special Court for Sierra Leone, Trial Chamber, Transcripts, (Witness TF1-133), SCSL-04-16-T, 7 July 2005, pp. 90–92.



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covet your colleague’s wife. If you are caught, you will be killed”.46 Likewise, it will be recalled that in her expert testimony Bangura stated that the “word ‘wife’ demonstrated a rebel’s control over a woman. His psychological manipulations of her feelings rendered her unable to deny him his wishes. ‘Wife’ showed that the woman belonged to a man and could not be touched by another. By calling a woman ‘wife’, the man or ‘husband’ openly staked his claim […]”.47 Justice Doherty in her dissent makes plan that the soldiers owned their ‘wives’: The girls and women, without their consent, were taken as ‘wives’ by individual rebels. Some girls and women forced into marriage benefited from their ‘marriage’ insofar as their ownership by a particular rebel may have offered them some protection from rape and other forms of abuse by the other rebels. However, given the overwhelming environment of coercion, I consider this to be a relative benefit or a means of survival, which cannot be understood as indicative of consent or the exercise of autonomous power within the relationship by the victims and which in no way diminishes the severity of the acts.48

From the testimony of the women involved in cases of forced marriage, it is clear that the original act of abduction was the gateway to enslavement. As Kevin Bales and Jody Sarich remind us, “it is rare to be able to make a definitive statement about any human activity, except in this: for women, slavery means rape”.49 Women taken in cases of forced marriage had no free will, no autonomy, least of all sexual autonomy. Once enslaved, women were required to maintain ‘their’ solider under pain of death or physical violence. They did so by cooking, cleaning, portering, by allowing nonconsensual sexual access, by being subject to forced impregnation and childbirth followed by child-rearing or forced abortion depending on the whim of the solider. They were, in a word: possessed. They were treated in law as though they were a thing owned. If one looks to the substance of what transpired rather than to its form – that is: what it was termed, foremost by its perpetrators – it becomes clear that during the Civil War in 46 Id., p. 101. 47 Brima et als. case, Special Court for Sierra Leone, Appeals Chamber, Judgment, SCSL2004-16-A, 22 February 2008, p. 63. 48 Brima et als. case, Special Court for Sierra Leone, Partly Dissenting Opinion of Justice Doherty on Count 7 (Sexual Slavery) and Count 8 (‘Forced Marriages’) as found in Trial Chamber, Judgement, SCSL-2004-16-T, 20 June 2007, p. 589. Footnotes excluded; emphasis added. 49 Kevin Bales and Jody Sarich, “Afterword: The Paradox of Women, Children, and Slavery”, Benjamin Lawrance and Richard Roberts (eds.) Trafficking in Slavery’s Wake: Law and the Experience of Women and Children, 2012, p. 242.

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Sierra Leone what transpired was not a marriage, forced or otherwise, but in fact enslavement of women. And yet, in the final instance, the Special Court for Sierra Leone rejected enslavement – be it sexual slavery or otherwise – and instead understood forced marriage to be: a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim”.50

As I have sought to demonstrate, the instances of forced marriage which the Special Court for Sierra Leone considered are, in fact and in law, cases of enslavement. Better would have been for the Court to recognise the substance of the crime rather than to reconstitute it as a different form – a different variation. Harking back to the 1926 Slavery Convention which sought “the complete suppression of slavery in all its forms”, the Special Court should have recognised what was transpiring for what it was: the enslavement of women under the guise of marriage. Servile Marriage in War and Peace As has been considered in Chapter Four, servile marriages were legislated against in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. Yet, these do not speak to the case of the enslavement of women under the guise of marriage which transpired during the Civil War in Sierra Leone. It will be recalled that these specific instances of servile marriage touch on the purchasing of a bride, the transferring of a wife, or the inheriting of a widow; and such servile marriages do not appear to have taken place in a systematic manner during the Sierra Leone conflict. This is so, as in the first instance women were not given in marriage, they were taken; abducted without ‘a consideration of money or in kind’. With regard to the transfer of a wife, the provisions of the 1956 Convention require that such transfer be made by the husband, his family or his clan. In the conflict in Sierra Leone, such transfers which did take place did not have this link. As for the third instance of servile marriage, as set out in the 1956 Supplemen­ tary  Convention; “a women on the death of her husband is liable to be inherited by another person”, while such cases of widow inheritance may 50 Brima et als. case, n. 11, p. 65.



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have taken place during the Civil War, as between soldiers killed in combat, they did not feature in either the testimony of witnesses before the Special Court for Sierra Leone or the Sierra Leone Truth & Reconciliation Commission. The three servile situations resulting from marriages that are addressed in 1956 Supplementary Convention are in fact examples of customary marriage which had been recognised as existing by European colonial overlords of Africa and Asia during the first half of the Twentieth Century. For Sierra Leone, as the Sierra Leone Truth & Reconciliation Commission noted, such servile marriages and other forced marriages set in customary law are not vestiges of the past, but contributed to a climate in which it was considered, in times of war, that women – deemed as property – could be taken at will and enslaved: Prior to the war, the status of women in Sierra Leone at almost every level was low. […] Consequently, it was easy for armed combatants to treat women with disdain and appropriate a sense of ownership of women’s bodies for themselves, as they probably were wont to do, albeit to a lesser extent, in peacetime. The patriarchal hegemony that had existed in Sierra Leone continued and worsened during the conflict, evolving in the most macabre manner. The cultural concept that a woman was ‘owned’ by a man played itself out in many of the violations that women suffered during the conflict.51

The Sierra Leone Truth & Reconciliation Commission notes, with regard to some ethnic groups in contemporary Sierra Leone, that “traditional customary law regards women as ‘chattels’ to be inherited […] by the deceased’s elder brother, or in his absence his eldest son”.52 With this as a backdrop, the Sierra Leone Truth & Reconciliation Commission made the connection between forced and servile marriages in times of peace with enslavement of women under the guise marriage which transpired in Sierra Leone during the Civil War. Noting that forced marriage was a means of addressing rape in Sierra Leone amongst the Fullah and Mandingo groups, the Truth & Reconciliation Commission stated that “if violence existed against women at a time when there were some, albeit insufficient safeguards for women in place, the moment they were removed, the level of violence escalated. The contempt in which women were held prior to the conflict also exacerbated the way they were

51 Sierra Leone Truth & Reconciliation Commission, n. 2, p. 170. 52 Id., pp. 98 and 114.

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treated during the war”.53 This link was also noted by Judge Julia Sebutinde, in her Concurring Opinion of the Trial Chamber Judgment in Brima, when she agreed with the understanding of an expert witness who testified that “forced marriages or arranged marriages are not to be equated with those transpiring during conflict”, where combatants routinely abduct women and force them to become ‘wives’, essentially obliging them to cook, clean, wash clothes and have sex against their will (and often as a consequence to bear children) all of which are stereotyped, gender-specific forms of labour. The latter relationships, whereby no marriage transactions have been made or ceremonies held, mimic peacetime situations in which forced marriage and expectation of free female labour are common practice. This stereotyped perception of women persists in war-time and puts such women at great risk of abduction and violence.54

This link between forced marriages – including servile marriages as set out in the 1956 Supplementary Convention – in times of peace and outright enslavement in times of war raises an interesting question in regard to a proposition that I had but forward in the earlier Chapter Four when I stated that ministers and heads of States or governments could find themselves prosecuted for failing to address widespread instances servile marriage. Let me put that question thus: Could political leaders find themselves in the dock for failing to address servile marriages? While the possibility would appear quite remote, the answer is yes. The provisions of servile marriage found in Article 1(c) of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery are, by reference to their content, not only institutions or practice similar to slavery but are also, as I have demonstrated in Chapter Four, slavery as defined by the 1926 Slavery Convention. This reading of the provisions is vital, as it increases the opportunity of these servile examples of forced marriage beyond both general international law and international human rights law which incurs State responsibility, to also include international criminal law and individual criminal responsibility. Cases of servile marriage, if they meet the jurisdictional threshold of the International Criminal Court, can be deemed to be the crime against

53 Id., p. 108. 54 Brima et als. case, Special Court for Sierra Leone, Separate Concurring Opinion of the Hon. Justice Julia Sebutinde Appended to Judgment pursuant to Rule 88(c), as found in Trial Chamber, Judgement, SCSL-2004-16-T, 20 June 2007, p. 576.



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humanity of enslavement. Granted, this threshold would be difficult to meet, yet it need not be traversed to gain results, as the very stigma of the accusation of being party to the crime against humanity of enslavement may move States to act to put to an end practices which they have tacitly allowed on their territory. Because of the jurisdiction of the International Criminal Court, which is limited to considering the most serious of international crimes, it should be emphasised that the invoking of servile marriage as slavery cannot be expected to deal with what may be termed forms of ‘retail’ forced marriage, that is: holding an individual person responsible internationally for one such instances of, say, bride purchase. Instead, the invoking of the Statute of the International Criminal Court would need to speak to ‘wholesale’ practices which would entail the individual responsibility of those in power ‘who knew or had reason to know’ that such practices – for instance, the transfer of a wife – were widespread and systematic, but failed to act to end such customs. The International Criminal Court came into existence in 2002 with the power to try cases of crimes against humanity, genocide and war crimes.55 While the Court is meant to deal with “the most serious crimes of concern to the international community as a whole”; it can only do so in a complementary manner when a State, party to its Statute, is “unwilling or unable” to investigate or prosecute.56 As a pre-condition to exercising its jurisdiction over a person with respect to the crimes under the Statute, the International Criminal Court must satisfy itself that the conduct in question occurred on the territory of a State Party; or that the person accused is a national of a State party to the Statute.57 Ultimately, if these various criteria are met, it is up to the discretion of the Prosecutor whether to proceed with a case before the Court. While the Prosecutor utilises his or her own discretion, States Parties or the Security Council may refer situations for prosecutorial consideration.58 Beyond meeting this jurisdictional threshold, the ability to hold an individual criminally responsible for servile marriages will require such cases to have been “committed as part of a

55 With regard to the crimes, see Article 5, Statute of the International Criminal Court, 17 June 1998. As to the entry into force of the Statute, see Article 126, which required sixty State ratifications and a time lapse which was achieved on 1 July 2002. 56 See Articles 5 and 7, Statute of the International Criminal Court, 17 June 1998. In such a situation, the Court may exercise jurisdiction but for the possibility of the United Nations Security Council seeking its own twelve-month deferral of investigations, which can renewed for a further one-year period; see Article 16 of the Statute. 57 See Article 12, Statute of the International Criminal Court, 17 June 1998. 58 See Article 13, id.

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widespread or systematic attack directed against any civilian population”.59 This is so, as this phrase just quoted, forms part of the definition of what constitutes a crime against humanity. Under the banner of the International Criminal Court, servile marriages would fall under the heading of the crime against humanity of enslavement. While ‘enslavement’ as an international crime has been considered in more depth in the previous Chapter, in is worth considering the more specific instance of the application before the International Criminal Court of situations of servile marriage, as set out in Article 1(c) of the Supple­ mentary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. It will be recalled that enslavement as a crime against humanity is established by Article 7(1)(c) of the Statute of the International Criminal Court and is defined at Article 7(2) (c) in the following terms: ‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

The secondary legislation of the International Criminal Court, the Ele­ ments of Crimes, which is meant to “assist the Court in the interpretation and application” of the various crimes established by the Statute, sets out the following relevant provision in relations to the crime against humanity of enslavement: The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.

Attached to the provisions of this Element is a footnote, Footnote 11, which then reads: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.60

59 See Article 7, id. 60 Article 7(1)(c), Elements of Crimes, ICC-ASP/1/3(part II-B), 9 September 2002, footnote 11.



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These provisions of the legislation of the International Criminal Court gets us to the point of mention of the 1956 Supplementary Convention; wherein it is to be understood that a deprivation of liberty, similar to that of exercising the powers attaching to the right of ownership, may, in some circumstances, be present where a person is reduced to a servile status as defined by the 1956 Convention. This reading of the texts requires some unpacking. Let us first consider the notion of ‘reducing a person to a servile status as defined in the Supplementary Convention’. While the 1956 Supplementary Convention repeats the definition of slavery from the 1926 Convention in its Article 7(a), stating: “‘Slavery’ means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. It then adds to this definition – though not in any substantive way – by setting out the following sentence: “‘slave’ means a person in such condition or status”. This was followed, at Article 7(b) of the Supplementary Convention, by an awkward attempt to define a person in a situation of servitude. It was through this process that the notion of a ‘person of servile status’ emerges, as the provision in full reads: “‘A person of servile status’ means a person in the condition or status resulting from any of the institutions or practices mentioned in article 1 of this Convention”. It should be recalled that Article 1 of the Supplementary Convention sets out the four conventional servitudes, one of which is the provisions regarding servile marriages. A further unpacking of the text entails a consideration of what might constitute those ‘circumstances’ in which a similar deprivation of liberty to that of the exercising the powers attaching to the right of ownership, might be present in the case at hand, that of servile marriages. The approach I developed in the previous Chapter was a reading which spoke to the requirement of Article 9(3) of the Statute of the International Criminal Court: that the Elements of Crimes “be consistent with this Statute”. For such consistency to exist, what is required is that the substance of the conventional servitudes of the 1956 Supplementary Conven­ tion, meet the threshold of the definition of enslavement. Thus, neither the Elements of Crimes or Footnote 11 expand the scope or application of the provisions of the crime against humanity of enslavement, as the Footnote does not introduce lesser servitudes into the jurisdiction of the Court. Instead, both the Elements of Crimes and Footnote 11 ‘assist the Court in the interpretation and application’ of the provisions of the Statute which set out the definition of enslavement. Here is a case in point where the form may mean that we call something debt bondage or servile

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marriage, but the substance requires that such institutions or practices meet the threshold of a deprivation of liberty similar to that of exercise of the power attaching to the right of ownership for it to be successfully tried before the International Criminal Court. While a practice may be identified as a conventional servitude as set out in Article 1 of the 1956 Supplementary Convention, it will only fall under the jurisdiction of the International Criminal Court where it is, in law, enslavement. That is: if the practice – in substance – manifests the exercise of a power attaching to the right of ownership. With regard to servile marriages, what I have demonstrated earlier in the chapter on Servitude, is that each of the three instances set out in 1956 Supplementary Convention, the purchasing of a bride; the transferring of a wife, or the inheriting of a widow; ipso facto, meets the definition of enslavement. As a result, where servile marriage is concerned – as opposed to, for instance, some possible circumstances of debt bondage or child trafficking – such marriages, by their legal definition, will in all circumstances be demonstrative of the exercise of powers attaching to the right of ownerships. As a result, it can be said unequivocally that the servile marriages as set out in Article 1(c) of the 1956 Supplementary Convention meet the definitional threshold of enslavement as found in the Statute of the International Criminal Court. As a result, no true reference would need to be made to either the Elements of Crimes or Footnote 11 in making a determination that a servile marriage constitutes a crime against humanity of enslavement (with the usual proviso, that such cases would need to meet the other jurisdictional requirement of the Statute of the International Criminal Court). While reference might be made to the secondary legislation for formal reasons, the essence of a determination would be that such servile marriages, by their very nature, are institutions or practices where the exercise of the powers attaching to the right of ownership are exercised; ipso facto: they constitute the crime against humanity of enslavement ratione materiae. What benefit can be incurred from a determination that such servile marriage meet this threshold of the crime against humanity of enslavement? If it could be demonstrated that a given practice of servile marriage, such as that of Sadaka in Niger where girls are purchased as brides,61 was a wide enough and systematic enough practice so as to meet the jurisdictional threshold of the International Criminal Court, individual criminal 61 See Chapter 4, p. 184.



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responsibility would ensue. So too would individual criminal responsibility flow in like-cases of forced marriage which, while not meeting the definitional threshold of any of the servile marriages as set out in the 1956 Supplementary Convention, would still constitute enslavement as exhibiting the exercise of powers attaching to the right of ownership. Where such practices continue to exist, such individual criminal responsibility would follow, and would find purchase at the level of those who not only might be “providing the means for” the commission of the crime, but also “in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose”.62 In the case of traditional marriage practices which transpired at the level of a crime against humanity, individual criminal responsibility would entail the responsibility of government official and of members Gov­ ernment including the Head of State or Government where such individuals provided the means for the commission of the crime of enslavement through forced marriage or in another way contributed to the commission or attempted commission of the crime. In such cases, the State would be aware of such practices taking place on a large scale under customary law or otherwise. As a result, through commission, where such marriages are registered or solemnised by State officials; or by omission where the police, prosecutors, or judges fail to act to end such practices; ‘a group of persons acting with a common purpose’ – the State administration of marriages and/or justice – would contribute to the on-going commission of the crime against humanity of enslavement manifest in such traditional marriage practices. The Statute of the International Criminal Court is clear, that one’s official capacity, whether it be as Minister of Justice or the President of a republic, “shall in no case exempt a person from criminal responsibility under this Statute”.63 As a result, a case to answer could be made for those that have the ability to change government policy but instead ‘provide the means’ or contribute ‘in any other way’ to the continuation of marriage practices which meet the threshold of enslavement such as, though not exclusively, those instances of servile marriages as set out in the 1956 Supplementary Convention. While prosecution may be remote, the bringing to light of the connection between servile marriages and individual criminal responsibility may well be enough to compel States to act to end such harmful traditional practices. Quiet diplomacy 62 Article 25(3)(c) and (d), Statute of the International Criminal Court, 17 June 1998. 63 Article 27, Statute of the International Criminal Court, 17 June 1998.

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and mention of ministers being held responsible may be enough to get the wheels of government turning. Conclusion This Chapter has been a natural progression from those related to Slavery (Chapter 4) and Enslavement (Chapter 6), as it has sought to demonstrate the application of the substance of the international definition slavery/ enslavement to a specific instance which was not recognised as such by an international court. By turning to the substance of, in this case, the phenomenon of ‘forced marriage’ during the Civil War in Sierra Leone, and looking not at what it has been termed, but to the substance of the relationship which was created; it can be said that the perpetrators exercised powers attaching to the right of ownership when they abducted women and conferred upon them the designation of ‘wife’. That such relationships entailed constant sexual violence and continuous threats to life and limb says little for the Special Court for Sierra Leone’s designation of marriage, forced or otherwise. Yet, more fundament than taking issue with the nomenclature of ‘forced marriage’, is the fact that these women were, in law, enslaved. That said, the Special Court for Sierra Leone can hardly be taken to task for failing to recognise these instances of enslavement as, at the time of the Brima case, the law of slavery/enslavement remained, as it does today, underdeveloped. The law emanating from the Special Court for Sierra Leone regarding ‘forced marriage’ has resulted in it being considered under the heading of various crimes, and thus no clear jurisprudence has emerged. With this in mind, I have sought to show how the application of a reading of the definition of enslavement holds in the context of the Civil War in Sierra Leone. While I have been at pains to emphasise that one should always look to the substance and not to the form in a particular case to make a determination as to whether a condition amounts to slavery/ enslavement; this Chapter has sought to apply the definition of slavery to a phenomenon and found, in the main, to be applicable. The 1926 Slavery Convention sought to secure “the complete suppression of slavery in all its forms”. It may be said that the phenomenon of ‘forced marriage’ during the Civil War in Sierra Leone, is one such form. Future instance of like cases, might well have courts of law go beyond the branding of the condition – by perpetrators – as ‘marriage’ and look to the substance of the relationship created. Considered in this new light, it would be recognised for what it is: slavery.

CHAPTER EIGHT

OF THE REMOVAL OF ORGANS, PROSTITUTION AND THE REGIME OF TRAFFICKING

In this, the final chapter of this study, we return to the definition of trafficking in persons. Having thus far given chapter-length consideration to a handful of types of exploitation set out in the definition of trafficking in persons, this chapter will close that bracket by examining the two final examples of exploitation set out in the Palermo Protocol; then go on to consider the regime of trafficking. The chapter thus considers the trafficking of persons for the removal of organs, before going on to examine ‘the exploitation of the prostitution of others or other forms of sexual exploitation’. Before investigating this latter provision, the evolution of the regime of trafficking will take place so as to provide the context necessary to understand the centrality of prostitution to the early efforts to suppress – in its original manifestation, the ‘white slave trade’ – trafficking in persons. Having thus completed the study of the various types of human exploitation, the Chapter goes on to consider the two further elements of the definition of trafficking in persons as set out in the Palermo Protocol – the methods and means: Methods: “the recruitment, transportation, transfer, harbouring or receipt of persons”; and Means: “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”

This consideration undertaken, the Chapter concludes with an examination of the Palermo Protocol in the context of the overall legal regime established to counter human trafficking. Thus, this chapter brings to a close the overall study of human exploitation undertaken within the context of human trafficking as it has developed in law. In so doing, it brings coherence to an area which for a very long time, lacked a grounded reading in international law. In this current neo-abolitionist era where the issue of human trafficking is forcing States

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to get serious about the application of the law through prosecutions, it is a timely task to consider the legal parameters of the various types of exploitation, in their own right and with an eye to their application in the context of human trafficking. Trafficking in Persons for the Removal of Organs While the term ‘exploitation of the prostitution of others’ lacks consensus as a result of a limited number of States having legalised prostitution, the ‘removal of organs’ is, in the main a legal activity, which is legislated for in the vast majority of States. Thus, as opposed to the other types of exploitation set out in the Palermo Protocol, which are ipso facto crimes, the removal of organs only becomes criminal in the context of trafficking. That is to say, while there is no crime of ‘removal of organs’, there is a crime of trafficking in persons for the removal of organs where a person is moved as a result of the ‘threat or use of force or other forms of coercion, of abduction, of fraud, of deception’ or other means, for the purpose of the removal of their organs. The trafficking in persons for the removal of organs is a recent phenomenon, only made possible as a result of 1970s pharmaceutical development of immunosuppressant drugs. In the wake of organ transplants, came the possibility of a market for human organs which could be harvested from persons who might be exploited, being deceived or coerced into agreeing to relinquish an organ without full and informed consent. The issue was first raised at the international level in 1988 by the International Association of Democratic Lawyers in their submission to the United Nations Working Group on Slavery. The International Association noted that in a 1987 radio interview, the former secretary of the Social Welfare Board of Honduras stated that “many organisations adopt children with physical defects in order to sell them as ‘spare parts’”. The International Association of Democratic Lawyers went on to report, on the basis of newspaper articles, that in Guatemala, “fourteen unidentified children were found by the National Guard”. The person charged confessed to having obtained the children by two means, through their purchase from “a gang of delinquents whose job was to kidnap them”, and by offering to pay pregnant women for their children. The submission goes on to read: “The woman charged allegedly admitted that the children were not really adopted, but under cover of adoption were used as ‘raw material’ in organ transplants said to take place in certain North American

trafficking327 cities”. The Association, again basing itself on newspaper reports, noted that subsequent to this arrest, sixteen children and seven new-born babies were found in police raids; those charged in the latter case admitting that the babies were to be “exported for the purpose of selling their organs for transplants at $75,000 per organ”.1 For its part the Association questioned these newspaper reports: Since organ transplants have become possible, a ‘market’ has been created, and it is feasible to sell parts of the human body. […] In Third World countries where extreme poverty and violence prevail, it is conceivable for an orphaned child, abandoned and defenceless, to fall into the hands of criminals whose crimes bring in even more money than the prostitution or pornography which they use on a wide scale. The truth should be learned. If no evidence can be found beyond one or two criminal cases, the press must not publish such accounts; it is not right to do so. If, on the contrary, evidence can be furnished, the harshest and most urgent measures should be taken.2

In 1989, the plenary body of States Members to the United Nations World Health Organisation passed a Resolution on Preventing the Purchase and Sale of Human Organs recommending that “Member States introduce legislation to prohibit trafficking in organs where this cannot effectively be prevented by other measures”.3 Two years later, the World Health Organ­ isation noted that “fears have arisen of the possibility of related traffic in human beings”.4 Also in 1991, the International Association of Democratic Lawyers provided further examples of the traffic in children for their

1 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination of Minorities, Working Group on Contemporary Forms of Slavery, Review of Developments in the Field of Slavery and the Slave Trade in all their Practices and Manifestations; Information received from non-governmental organizations pursuant to Sub-Commission Resolution 1987/32: Note of the Secretary-General, 25 May 1988, UN Doc E/CN.4/Sub.2/AC.2/1988/7 5, p. 8. Note that René Cassin was the first President of the International Association of Democratic Lawyers. 2 Working Group on Contemporary Forms of Slavery, n.1, p. 9. 3 United Nations, World Health Organisation, Forty-Second World Health Assembly Geneva, 8–19 May 1989, WHA/42/1989/5 Preventing the Purchase and Sale of human Organs. Note Abdallah Daar, “Ethical Issues: A Middle East Perspective”, Transplantation Proceedings, Volume 21, 1989, pp. 1402–1404. 4 United Nations, World Health Organisation, Human Organ Transplantation, FortyFourth World Health Assembly Geneva, 6–16 May 1991, UN Doc WHA/44/1991/REC/1, Annex 6,.

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organs, this time examples from Brazil, Chile, Colombia, the Dominican Republic, and Haiti.5 Little else was said in international fora regarding trafficking in persons for their organs before discussions by the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime in the lead up to the adoption of the Palermo Protocol. As first mooted, the provision related to the “removal of organs for illicit purposes”. While variations on this theme were proposed (‘traffic in organs’, ‘illicit traffic in human organs’, ‘illicit traffic in human body organs’, ‘illicit trafficking in human organs and body parts’), it was pointed out that “while trafficking in persons for the purpose of removing organs was within the mandate of the Ad Hoc Committee, any subsequent trafficking in such organs or tissues might not be”. It was also noted that the Draft Protocol, dealing as it did with trafficking in persons rather than trafficking in organs, “might make it necessary to develop additional measures”.6 In October 2000, an informal working group proposed that the provision related to organs simply read; “the removal of organs”;7 in other words, it proposed the provisions as they now find themselves within the Palermo Protocol, which, in context reads: Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

The Interpretative Notes to the Palermo Protocol developed by the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime provides a commentary on the provisions related to the removal of organs, stating: “The removal of organs from children with 5 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination of Minorities, Working Group on Contemporary Forms of Slavery, Prevention of Trafficking in Persons and the Exploitation of the Prostitution of Others; Review of Developments in the Field of Contemporary Forms of; Information received from non-governmental organizations: Note of the Secretary-General, 1 July 1991, UN Doc. E/CN.4, Sub.2/AC.2/1991/6/Add.1, pp. 9–12. Note the 1992 case in Argentina of a State run mental institution in which the patients were murdered by the staff for their organs and blood. See Vivek Chaudhary, “Argentina Uncovers Patients Killed for Organs”, British Medical Journal, Volume 304, April 25, 1992, pp. 1073–74. 6 See United Nations, United Nations Office on Drugs and Crime, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, 2006, p. 334, fn. 28. 7 See Recommendations of the informal working group on article 2 bis, submitted at the request of the Chairperson (A/AC.254/L.243), as found in id., p. 345.

trafficking329 the consent of a parent or guardian for legitimate medical or therapeutic reasons should not be considered exploitation”.8 With regard to children, reference should be made to the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which requires State Parties to criminalise a number of activities, “whether such offences are committed domestically or transnationally or on an individual or organized basis”, including the “offering, delivering or accepting, by whatever means, a child for the purpose of […] transfer of organs of the child for profit”.9 Where domestic law is concerned, more than fifty States have anti-trafficking provisions mirroring the Palermo Protocol within their legislation which cover the trafficking of human beings for their organs.10 A number of States have gone further and sought to define what the crime of trafficking in persons for the removal of organs constitutes; though it must be emphasised that these definitions simply track the language of the Palermo Protocol. Thus, in Mozambique, “Any person that recruits, hires, adopts, transports or kidnaps a person, by means of threatening or use of violence, fraud, deceiving, coercion or intimidation, in order to remove or sell the victims’ organs, shall be punished with a penalty of sixteen to twenty years in prison”.11 For the Philippines, such trafficking entails any of the following acts: “To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person”.12 With regard to Tanzania, the prohibition against trafficking touches on a person  8 Travaux Préparatoires, n. 6, p. 347. Note that the language tracks, to some extent, the Spanish provision in its law on Extraction and Transplant of Organs, which “prohibits the donation of organs by live minors. Nevertheless, the law allows a minor’s organs to be donated if he/she is dead or brain dead, with the consent of the child’s parents or legal guardian”. See Article 4, Law 30/1979 of 27 October on Extracción y trasplante de órganos.   9 Article 3(a)(i)(b), Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000. 10 These include: Argentina, Bulgaria, Cambodia, Cameroon, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Egypt, Equatorial Guinea, Fiji, Finland, Georgia, Greece, Haiti, Iceland, Indonesia, Ireland, Italy, Lao, Latvia, Liberia, Liechtenstein, Luxembourg, Madagascar, Malta, Mauritius, Myanmar, Namibia, Netherlands, Nicaragua, Norway, Oman, Panama, Philippines, Poland, Moldova, Romania, Saudi Arabia, Senegal, Serbia, Sierra Leone, Slovenia, Sri Lanka, Switzerland, Tajikistan, The former Yugoslav Republic of Macedonia, United Arab Emirates, United Kingdom, Uruguay, and Venezuela. See Slavery in Domestic Legislations database: http://www.qub .ac.uk/slavery/.  11 Article 13, Law Nr. 6/2008 of 9 July 2008. 12 Section 4(g), Anti-Trafficking in Persons Act of 2003.

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who […] recruits, hires, adopts, transports or abducts […] a person, by means of threat or use of force, fraud, deceit, violence, coercion or intimidation for the purpose of removal or sale of organs of the person”.13 Finally Timor Leste has developed the most elaborate provision: 1. Any person who obtains, sells, assigns, purchases, transports or transfers tissues, organs, substances or parts of the human body of third parties without consent or through use of threats, force or other forms of coercion, kidnapping, fraud, deceit, abuse of authority or situation of vulnerability, or by means of delivery or acceptance of payments or benefits, or assists in the collection, transaction, transport or storage of the above shall be punishable with 3 to 10 years imprisonment. 2. If commission of any of the acts mentioned in the sub-article above results in any of the effects provided for in article 146 or the death of the victim, the perpetrator shall be punishable with 4 to 12 years imprisonment and 5 to 20 years imprisonment, respectively. 3. Consent of the victim is criminally irrelevant, if any of the means referred to in sub-article 1 were used.14

In other instances, States have gone still further in their legislation, not requiring trafficking to transpire: in the sense of the movement of a person; and instead have simply linked the removal of organs to the ‘means’ rather than a method of movement. Thus, Kazakhstan, Kyrgyzstan, and Ukraine mirror Russian legislation which criminalises the “compulsion to remove human organs or tissues for transplantation, committed with the use of violence or with the threat of its use”.15 Kenyan legislation is more to the point, simply noting that “forcible or fraudulent use of any human being for removal of organs or body parts” is a criminal matter.16 In the Canadian context such activity amounts to exploitation, wherein “a person exploits another person if they […] cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed”.17 The legislation of Liberia and Sierra Leone simply note that exploitation shall mean, inter alia, ‘illicit removal of human organs’; wherein they define this phrase as follows: “Illicit removal of organs” refers to the unlawful conduct, and not to legitimate medical procedures for which proper consent has been obtained”.18 For Nepal, 13 Section 4(1), The Anti-Trafficking in Persons Act, 2008. 14 Article 165 –Trafficking in human organs, Penal Code of Timor Leste, 7 June 2009. 15 Article 120, The Criminal Code of the Russian Federation, No. 63-Fz of 13 June 1996. 16 Section 2, The Counter Trafficking in Persons Bill, 2010. 17 Section 279.04 (b), Criminal Code (R.S.C., 1985, c. C-46). 18 Sections 102 and 107, An Act to Ban Trafficking in Persons within the Republic of Liberia, 5 July 2005; and Section 3, The Anti-Human Trafficking Act, 2005.

trafficking331 exploitation also includes: “to remove human organs except otherwise provided by prevailing law”.19 The latter phrase of the Nepalese legislation is worth drawing attention to, as it recognises that the removal of organs can and does transpire; yet what this Act seeks to capture are those instances of the removal of organs which are against the law, be they in instances of trafficking or not. The Global Observatory on Donation and Transplantation estimates that, in 2010, just over 100,000 organ transplants took place world-wide, of which more than seventy percent were kidney transplants.20 As with many illegal activities, no credible estimates exist as to the number of transplants which take place where persons are trafficked for the removal of their organs.21 That said, as the World Health Organisation attests: The shortage of available organs has not only prompted many countries to develop procedures and systems to increase supply but has also stimulated commercial traffic in human organs, particularly from living donors who are unrelated to recipients. The evidence of such commerce, along with the related traffic in human beings, has become clearer in recent decades.22

This acknowledgment by the United Nations World Health Organisation results from the research by medical anthropologists, starting in mid1990s, who uncovered a number of networks that trafficked persons for their organs. At the vanguard of this shedding of light on the underworld of trafficking of people for their organs as been the self-styled ‘militant anthropologist’ Professor Nancy Scheper-Hughes, who through fieldwork in more than ten States found “widespread violations of national laws and international regulations against the sale of organs; […] the emergence of new forms of debt bondage in which the commodified kidney occupies a critical role; [… and] ‘coerced gifting’ of kidneys by domestic workers and by hopeless prisoners in exchange for secure work and reduction in prison

19 Section 13(e), Human Trafficking and Transportation (Control) Act, 2064. 20 See http://www.transplant-observatory.org/Data%20Reports/Basic%20slides%20 2010.pdf. 21 Yosuke Shimazono indicates that “the total number of recipients who underwent commercial organ transplants overseas may be conservatively estimated at around 5% of all recipients in 2005”. Shimazono is primarily speaking of ‘transplant tourism’ which is “when a patient obtains an organ through the organ trade or other means that contravene the regulatory frameworks of their countries of origin”. See Yosuke Shimazono, “The State of the International Organ Trade: A Provisional Picture based on Integration of Available Information”, Bulletin of the World Health Organization, Volume 85, 2007, pp. 959 and 956. 22 Preamble, WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation, 21 May 2010.

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sentences”.23 As Scheper-Hughes has noted the traffic in organs and the trafficking of persons for their organs is deeply exploitive: “In general, the organs flow from South to North, from poor to rich, from black to brown to white, and from female to male bodies”.24 Scheper-Hughes writes that over the past twenty years, organised programmes: have carried affluent patients from Israel, Saudi Arabia, Oman and Kuwait initially to India for transplant and later to Turkey, Iran and Iraq, later to Russia, Romania, Moldova and Georgia and more recently to Brazil and South Africa where kidney sellers are recruited from army barracks, jails and prisons, unemployment offices, flea markets, shopping malls and bars.25

In his 2012 study, Monir Moniruzzaman considers the case of Bangladesh, where organ buyers identify local sellers and travel in tandem to India for kidney transplantation. His finding, based on interviews with nearly three dozen organ sellers, was that “selling kidneys causes serious physical, psychological, social, and economic harm to the kidney sellers”.26 Moniruzzaman relates the typical modus operandi of traffickers, here in relation to organs: the use of false passports are arranged by brokers; these are then taken away in India, the seller is hosted in accommodation with other sellers, where coercion and violence are used to ensure that the operation takes place; with the arranged payment never materialising in the amount promised, ‘deduction’ for travel and rent being taken.27 Moniruzzaman concludes by noting that “85 percent of the Bangladeshi kidney sellers I interviewed spoke against an organ market; many of them proclaimed that selling a kidney is an “irrevocable loss”; if they had a second chance in life, they would not sell their kidneys”.28 Based on research to date, Debra Budiani-Saberi and Francis Delmonico note that “studies in Pakistan and Egypt are consistent with findings in India, Iran, and the Philippines that reveal deterioration in health conditions” of those who are exploited for their organs. As a result the short-term financial benefit 23 Nancy Scheper-Hughes, “Commodity Fetishism in Organs Trafficking”, Body & Society, Volume 7, 2001, p. 35. 24 Id., p. 45. 25 Nancy Scheper-Hughes, “Parts Unknown: Undercover Ethnography of the OrgansTrafficking Underworld”, Ethnography, Volume 5, 2004), p. 36. Scheper-Hughes reports that “open-ended, often repeated and follow-up interviews were conducted with 87 kidney sellers in Moldova, Brazil, the Philippines, Iran (via Diane Tober), Turkey, the US and Israel”; id., p. 64. 26 Monir Moniruzzaman, “‘Living Cadavers’ in Bangladesh: Bioviolence in the Human Organ Bazaar”, Medicial Athropology Quarterly, Volume 26, 2012, p. 71. 27 Id., p. 78. 28 Id., p. 86.

trafficking333 is, in the main, “compromised by the ability to generate a prior income level”, as the decline in health limits labour-intensive employment typical of organ sellers.29 At the time of writing – 2012 – legal cases related to trafficking in persons for their organs are rare. The following two examples reflect the infancy of such legal proceedings, the first, from South Africa took place prior to its trafficking legislation being effectively in place; the second, regarding Kosovo, has developed preliminary jurisprudence but no convictions as yet. In the 2010 The State v Netcare emanating from South Africa, a Hospi­ tal  – in a plea bargain which saw charges against the parent company Netcare and its CEO, Richard Friedland, dropped – pleaded guilty to more than one-hundred counts (one for each) of illegal kidney transplant operations. While such illegal operations transpired in Cape Town and Johannesburg,30 it was the St. Augustine Hospital in Durban which was charged with supplying kidneys to Israeli citizens from Brazilian and Romanian sellers (including five children) under the fraudulent claim that the parties were related and South African citizens.31 It might be emphasised that when these operations took place – between 2001 and 2003 – South Africa was not yet part to the Palermo Protocol, thus the charges stemmed from violations of the South African Human Tissue Act 1983. That said, where the victims of trafficking are concerned, the doctors in this case have been charged with assault with intent to do grievous bodily harm, as their operations were performed without informed consent.32 In the Kosovo case, this stems from allegations first brought forward by the former Prosecutor of the International Criminal Tribunal for the former Yugoslavia, Carla Del Ponte, and in large part confirmed by a 2010 Report by Dick Marty of the Parliamentary Assembly of the Council of Europe, implicating the leaders of the Kosovo Liberation Army in the taking of organs from Serbian prisoners of war during the war of 29 Debra Budiani-Saberi and Francis Delmonico, Organ Trafficking and Transplant Tourism: A Commentary on the Global Realities, American Journal of Transplantation, Volume 8, 2008, p. 928. 30 See Fatima Hassan and Sam Sole, “Kidneygate: What the Netcare Bosses Really Knew”, Mail & Guardian Online, 29 April 2011, http://mg.co.za/article/2011-04-29 -kidneygate-what-the-netcare-bosses-really-knew. 31 Jean Allain, “Trafficking of Persons for the Removal of Organs and the Admission of Guilt of a South African Hospital – The State v. Netcare Kwa-Zulu (Pty) Limited”, Medical Law Review, Vol. 19, 2011, p. 118. 32 Id., p. 118.

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1998–1999.33 In the lead up to that Report, the Kosovo Special Prosecution Office of EULEX – the European Union Rule of Law Mission in Kosovo – indicted five individuals related to the Medicus clinic in Pristina where the alleged transplants took place. While that case is pending, a further case – this time related to events in 2008 – finds three doctors indicted with the offence of “trafficking in persons by participating in the removal of human organs by transplant to other persons for the purpose of exploitation”. While the initial (EULEX) judge failed to confirm the indictment against Lufti Dervishi, Arban Dervishi, Driton Jilta and Sokol Hajdini, determining that there was no evidence as to the means of trafficking (re: coercion, fraud, abuse of power or of a position of vulnerability, etc.), the Appeal Panel of the District Court of Pristina saw it differently.34 The Panel, consisting of two EULEX and one Kosovo judge, confirmed the Indictment, noting that there was no lack of evidence as to the means of trafficking in the material prepared by the Prosecution: The person who had come to Kosovo to donate their organs did not do so to assist a family member or for any of the usual reasons that people in a civilised society chose freely to donate their organs. They did so because of their acute position of vulnerability. To suggest that persons would travel to a foreign country, endanger their health through such an invasive procedure on the say so of a stranger runs (if they were not in a position of vulnerability) contrary to common sense. The vulnerable position of YA and the balance of power in his relationship with those organising the operation is evidenced not only through his statement (statement of YA dated 5 November 2008 ‘I needed the money, had a lot of debts and thought of a better life’ and the fact he was approached in a park in Turkey to which he referred to in his statement of 8 November 2008) but by the timing between his operation and him being taken to the airport and further by his state of health when he was at the airport. There is strong inference that if he was not in such a vulnerable position he would have at least been able to demand better aftercare and chose whether or not to travel in his weakened physical state. His position of vulnerability is also evidenced by other matters such as his lack of contract and the complete absence of any lawful enforcement mechanism to obtain payment despite his having donated a kidney.35

33 Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, “Inhuman Treatment of people and Illicit Trafficking in Human Organs in Kosovo”, Draft Report, Dick Marty, Rapporteur, AS/Jur (2010) 46, 12 December 2010, para. 175. 34 Medicus case, District Court of Pristina, 2 March 2011, available at: http://www .eulex-kosovo.eu/en/judgments/. 35 Medicus case, District Court of Pristina, 27 April 2011, pp. 5–6, available at: http:// www.eulex-kosovo.eu/en/judgments/.

trafficking335 When measuring the approach of this Panel of judges – that the selling of an organ due to destitution amounts the abuse of a ‘position of vulnerability’ – as against the research thus far undertaken with regard to victims of trafficking for their organs, it appears that in the near totality of cases, people involved in the ‘recruitment, transportation, transfer, harbouring or receipt of persons’ of a person for the purpose of the removal of organs will amount, prima facie, to a case of trafficking as providing evidence of the three elements of trafficking: a method (recruitment, etc.) a means (position of vulnerability), and type of exploitation (removal of organs).36 One might raise the issue of consent, as often people who sell their organs undertake the transaction willingly – though in most instances out of desperation or ignorance, or both. In a Joint Report, the Council of Europe and the United Nations had the following to say about the selling of organs: One criticism is that only the poor and desperate will want to sell their body parts. If you need money, you might sell your kidney to try and feed your family or to pay back a debt. This may be a ‘rational’ decision, but that does not make it a matter of free, voluntary choice. Watching your child go hungry when you have no job and a wealthy person waves a wad of money in your face is not exactly a scenario that inspires confidence in the ‘choice’ made by those with few options but to sell body parts. Talk of individual rights and autonomy is hollow if those with no options must ‘choose’ to sell their organs to purchase life’s basic necessities. Choice requires information, options and some degree of freedom, as well as the ability to reason about risks without being blinded by the prospect of short-term gain.  It is hard to imagine many people in wealthy countries being eager to sell their organs either while alive or upon their death. In fact, even if compensation is relatively high, few will agree to sell. That has been the experience with markets in human eggs for research purposes and with paid surrogacy in the United States – prices have escalated, but there are still relatively few sellers.  Selling organs, even in a tightly regulated market, violates the existing bioethical framework of respect for individuals since the sale is clearly being driven by profit. In the case of living persons, it also violates the ethics of

36 As the discussions later in this Chapter attests, trafficking under the Palermo Protocol is of a transnational nature, thus what I have failed to mention in the above statement is the requirement for such trafficking to have transpired over an international border. It might be noted that a number of States have expanded their jurisdiction to also criminalise the internal trafficking in persons. The 2005 Council of Europe Convention on Action against Trafficking in persons does precisely this at the regional level, Article 2 reading: “This Convention shall apply to all forms of trafficking in persons, whether national or transnational […]”.

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chapter eight medicine itself. The core ethical norm of the medical profession is the principle, ‘Do no harm’. […] The creation of a market in body parts puts medicine in the position of removing body parts from people solely to abet those people’s interest in securing compensation as well as to let middle-men profit.  Is this a role that the health professions can ethically countenance? In a market – even a regulated one – doctors and nurses still would be using their skills to help living people harm themselves solely for money.37

While international law makes no claims to false consciousness, it has determined through the Palermo Protocol that, as public policy, it does not accept consent to the removal of one’s organs in situations of exploitation. The Palermo Protocol vitiates the consent of a “victim of trafficking in persons to the intended exploitation” of the removal of their organ as being irrelevant, “where any of the means” set out in the Protocol, such as that of ‘position of vulnerability’ “have been used”.38 Where caution might be exercised in the case of the confirmation of the Indictment in the Medicus case in Kosovo, is the equating of the selling of organs with abusing a ‘position of vulnerability’, as this would, in law, remove the need for the ‘means’ element to be present for the trafficking in persons for their organs to transpire. For its part the World Health Organisation, having acknowledged that trafficking in persons for the removal of organs is transpiring, has developed the 2010 Guiding Principles on Human Cell, Tissue and Organ Trans­ plantation which, in part, speaks to that issue. These Guiding Principles do well in setting out reference points in establishing the exploitative nature of trafficking in persons for their organs. In the first instance, the Guiding Principles states that “in general, living donors should be genetically, legally or emotionally related to their recipients”. With this in mind, Guiding Principle 3 ‘sets forth basic conditions for live donation’ – in essence speaking to those who are ‘genetically, legally or emotionally related to their recipients’: Live donations are acceptable when the donor’s informed and voluntary consent is obtained, when professional care of donors is ensured and followup is well organized, and when selection criteria for donors are scrupulously applied and monitored. Live donors should be informed of the probable

37 Council of Europe and United Nations, Trafficking in Organs, Tissues and Cells and Trafficking in persons for the Purpose of the Removal of Organs, 2009, Directorate General of Human Rights and Legal Affairs, Council of Europe, pp. 31–32. 38 Article 3(b), Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, 15 November 2000.

trafficking337 risks, benefits and consequences of donation in a complete and understandable fashion; they should be legally competent and capable of weighing the information; and they should be acting willingly, free of any undue influence or coercion.39

Such a prescription is in stark contrast to the findings of the research and studies undertaken by medical anthropologist which demonstrate a lack of informed consent; lack of follow-up care; and in instances, the use of coercion, with regard to persons trafficked for their organs. Attached to each of the Guiding Principles is a Commentary, which elaborates on its provisions. With regard to Principle 3, the Guiding Principles state, in part, that: A genetic relationship between donor and recipient may be therapeutically advantageous and can provide reassurance that the donor is motivated by genuine concern for the recipient, as can a legal relationship (such as that between spouses). Many altruistic donations also originate from emotionally related donors, though the strength of a claimed connection may be difficult to evaluate. […]  With live donation, particularly by unrelated donors, psychosocial evaluation is needed to guard against coercion of the donor or the commercialism banned by Principle 5. The national health authority should ensure that the evaluation is carried out by an appropriately qualified, independent party. By assessing the donor’s motivation and the donor’s and recipient’s expectations regarding outcomes, such evaluations may help identify – and avert – donations that are forced or are actually paid transactions.  The Principle underscores the necessity of genuine and well-informed choice, which requires full, objective, and locally relevant information and excludes vulnerable persons who are incapable of fulfilling the requirements for voluntary and knowledgeable consent. Voluntary consent also implies that adequate provisions exist for withdrawal of consent up until medical interventions on the recipient have reached the point where the recipient would be in acute danger if the transplant did not proceed. This should be communicated at the time of consent.

For its part, the Guiding Principle 5 noted in this Commentary speaks to the commercialisation of organs rather than ‘the need to guard against coercion’, in calling for a band on the purchasing or selling of organs. Guiding Principle 5 reads, inter alia: Cells, tissues and organs should only be donated freely, without any monetary payment or other reward of monetary value. Purchasing, or offering to 39 World Health Organisation, WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation, 21 May 2010. See Resolution WHA63.22, Human Organ and Tissue Transplantation, 21 May 2010.

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chapter eight purchase, cells, tissues or organs for transplantation, or their sale by living persons or by the next of kin for deceased persons, should be banned.40

It is only in the Commentary on Guiding Principle 5 that this issue of guarding against coercion is hinted at, though never squarely addressed. Instead, the Commentary notes that the payment of organs “is likely to take unfair advantage of the poorest and most vulnerable groups, […] and leads to profiteering and human trafficking. Such payment conveys the idea that some persons lack dignity, that they are mere objects to be used by others”. A keen eye will recognise in this Commentary the definition of exploitation noted in the Introduction of this study by Alan Wertheimer: ‘an exploitative transaction is one in which A takes unfair advantage of B’. The Palermo Protocol establishes that the trafficking in persons for the removal of organs is a form of exploitation. While the Council of Europe and United Nations jointly consider that “there is no need for the further development of a legally binding international instrument at universal or regional level” with regard to the trafficking of persons for their organs as “all relevant aspects for preventing and combating trafficking in human beings for organ removal are set out in the […] legally binding inter­ national instruments; this may be true but for one glaring omission.41 40 Guiding Principle 5 goes on to read: The prohibition on sale or purchase of cells, tissues and organs does not preclude reimbursing reasonable and verifiable expenses incurred by the donor, including loss of income, or paying the costs of recovering, processing, preserving and supplying human cells, tissues or organs for transplantation. Guiding Principle 7, for its part, states: Physicians and other health professionals should not engage in transplantation procedures, and health insurers and other payers should not cover such procedures, if the cells, tissues or organs concerned have been obtained through exploitation or coercion of, or payment to, the donor or the next of kin of a deceased donor. The Commentary on Guiding Principle 7 noting: Health care professionals should only proceed with the removal, intermediate management or implantation of cells, tissues or organs when donations are unpaid and truly voluntary. […] Failing to ensure that the person consenting to the donation has not been paid, coerced or exploited breaches professional obligations and should be sanctioned by the relevant professional organizations and government licensing or regulatory authorities. […] World Health Organisation, WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation, 21 May 2010. See Resolution WHA63.22, Human Organ and Tissue Transplantation, 21 May 2010. 41 Council of Europe and United Nations, n. 37, p. 8. Note that beyond the Council of Europe Convention on Action against Trafficking in Human Beings, 2005, the Council of Europe has also developed the Additional Protocol to

trafficking339 We know that ‘transplant tourism’ is a very lucrative business – the Bulletin of the World Health Organization notes all inclusive packages for kidney transplants in 2007 in China for US$70,000 and in the Philippines for US$85,000.42 We also know that the evolution of immunosuppressant drugs is further increasing the pool of possible recipients of organs which is driving demand. With this as a backdrop and despite the fact that Article 5 of the Palermo Protocol requires State Parties to “adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth” by the definition of trafficking in persons; the lack of a definition of what constitutes trafficking in persons for the removal of organs is conspicuous in its absence. Whether, such a definition would help or hinder prosecution would be conjecture. However, the lack of consensus as to what constitutes the trafficking in persons for the removal of organs means that it is left to each State to define the conduct and to criminalise it as they see fit. As the above survey of domestic legislations attests, States have approached the issue in a multitude of manners, most often simply including the definition of trafficking in persons in their domestic legal order and going no further where the removal of organs is concerned. Whether the inclusion of the provision on trafficking in persons for the removal of organs within the Palermo Protocol and through it, within domestic jurisdictions, is enough to nip this type of exploitation in the bud, or whether the slippery slope of the commoditisation of the human body will continue apace remains to be seen. the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin, 24 January 2002, of which Article 21 – Prohibition of Financial Gain reads: 1. The human body and its parts shall not, as such, give rise to financial gain or comparable advantage. The aforementioned provision shall not prevent payments which do not constitute a financial gain or a comparable advantage, in particular:  – compensation of living donors for loss of earnings and any other justifiable expenses caused by the removal or by the related medical examinations;  – payment of a justifiable fee for legitimate medical or related technical services rendered in connection with transplantation;  – compensation in case of undue damage resulting from the removal of organs or tissues from living persons. 2. Advertising the need for, or availability of, organs or tissues, with a view to offering or seeking financial gain or comparable advantage, shall be prohibited. 42 Yosuke Shimazono, “The State of the International Organ Trade: A Provisional Picture based on Integration of Available Information”, Bulletin of the World Health Organization, Volume 85, 2007, p 956, Table 1. Transplant tourism web sites available 21 March 2007.

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Yet, it may be that the conclusions of the joint study by the Council of Europe and United Nations is correct in asserting that the likes of the Palermo Protocol do adequately cover the area of trafficking in persons for their organs. As opposed to the other types of exploitation thus far considered in this study (i.e.: forced labour, servitude, slavery, etc.), the removal of organs without the trafficking element of the means of ‘the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability’ does not necessarily constitute a crime. In other words, control over a person held in forced labour, servitude or slavery will in all circumstances constitute a crime; but with regard to the removal of organs, a legitimate avenue for the donation of, say a kidney, to a loved one does exist, and is, in the main, legal. Thus, what is proscribed by the Palermo Protocol is not the removal of organs per se, but the exploitive removal of organs in the process of trafficking. As such, we need to probe into what constitutes ‘the removal of organs’, as the crime is intrinsically linked to the means by which this removal of organs transpires in allowing for organ-brokers and surgeons to take unfair advantage of the destitutions of the people they seek to exploit. The Evolution of the Regime of Trafficking But for the trafficking in persons for the removal of organs, all of the types of exploitation enumerated in the UN Palermo Protocol have a previous international instrument devoted to their suppression. This is also true of the term ‘the exploitation of the prostitution of others’, as the 1950 Con­ vention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, attests. However, this instrument, as opposed to those dealing with forced labour, servitude or slavery, does not provide a definition. Thus, the phrase ‘the exploitation of the prostitution of others’ lacks a definitional reference-point for establishing its content. Before determining why this is so, consideration first turns to the evolution of the regime of trafficking in persons from which this phrase emerges. While the slave trade, forced labour, servitude or slavery all have their origin in the social movement to end the Transatlantic Slave Trade, it should be emphasised that the definitions for each of these types of exploi­ tation emerges through the work of the Temporary Slavery Commis­sion, in the colonial context of the League of Nations and early United Nations era. By contrast, the origins of the regime of trafficking in persons flows from a difference source, one couched in Victorian paternalism that emerges as a

trafficking341 reaction to the ability of women to travel more readily in the Age of Steam of the mid- to late- Nineteenth Century. In the context of European colonialism, manifest in the Scramble for Africa, and the large movement of European troops made possible by the expansion of railways and steamships, came a call which, in effect, restricted the movement of European women so as “to better regulate venereal disease”.43 Venereal disease having, by the late-Nineteenth Century, threatened the European colonial project, where mass prostitution had been “organized to serve the needs of colonial troops”.44 Addressing trafficking of human beings in international law can trace its origins to a Report presented to the International Medical Congress in 1873, which called for an end to State regulation of brothels and prostitution.45 This attempt ultimately gained traction internationally as an effort not to end prostitution but to uphold the honour of women through the suppression of the ‘white slave’ trade. Radhika Coomaraswamy, the United Nations Special Rapporteur on Violence against Women, echoed this understanding, in 2000, noting that historically “anti-trafficking movements have been driven by perceived threats to the ‘purity’ or chastity of certain populations of women, notably white women”.46 It having been deemed that licensing issues were solely within the domestic jurisdiction of States and thus not liable to international agreement; attention turned to the cross-border movement of women as addressed in the first instance by the 1904 International Agreement for the Suppression of the White Slave Traffic. 43 Ethan Nadelmann, “Global Prohibition Regimes: The Evolution of Norms in International Society,” International Organization, Volume 44, 1990, p. 514. With regard to the Scramble for Africa, see H.L. Wessling, Divide and Rule: The Partition of Africa, 1880–1914, 1996. 44 Laura Reanda, “Prostitution as a Human Rights Question: Problems and Prospects of United Nations Action,” Human Rights Quarterly 13, (1991): 207. Note also Nora Demleitner, “Forced Prostitution; Naming an International Offense,” Fordham International Law Journal 18, (1994–1995): 163–197. 45 Vern Bullough and Bonnie Bullough, Women and Prostitution: A Social History, 1987, p. 263. 46 United Nations, Economic and Social Council, Commission on Human Rights, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, on trafficking in women, women’s migration and violence against women, submitted in accordance with Commission on Human Rights resolution 1997/44, 29 February 2000, UN Doc. E/CN.4/2000/68, p. 10. See also Philippa Levine, Prostitution, Race, and Politics, Policing Venereal Disease in the British Empire, 2003; and Jo Doezema “Loose Women or Lost Women? The Re-Emergence of the Myth of White Slavery in Contemporary Discourses of Trafficking in Women” Gender Issues, Volume 18, 2000, pp. 23–50.

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In an era when liberal internationalism had yet to take hold (this would come with the multilateralism of the League of Nations and United Nations), the purview of international agreements left little place for encroachment on what was deemed the very wide breadth of sovereign prerogative of States. From that perspective, little has changed from the 1904 Agreement for the Suppression of the White Slave Traffic to the 2000 Palermo Protocol, as both are transnational rather than international in nature. That is to say, that even with the Palermo Protocol, there is no international apparatus established to monitor compliance nor are there obligations bilateral, or multilateral, – beyond cooperation and coordination; instead the onus is placed on individual States to act within their own domestic jurisdictions. The 1904 Agreement required States to undertake “to have a watch kept, especially in railway stations, ports of embarkation, and en route, for persons in charge of women and girls destined for an immoral life”. In this instance, the 1904 Agreement made no provisions for ‘persons in charge of women or girls destined for an immoral life’, but instead the arrival of victims or accomplices was to be notified to “either the authorities of the place of destination, or to the diplomatic or consular agents interested”. Information regarding the woman was to be communicated to the authorities within the country of origin, “with a view to eventual repatriation”.47 This was followed in 1910, by the International Convention for the Suppression of the White Slave Traffic which sought, by punishing the perpetrator, to take “the most effective steps for the suppression of the traffic known as the ‘White Slave Traffic’”. This move to punish was not without its early Twentieth-Century idiosyncrasies which, while seeking to deal with the issue of consent, separated women along the lines which Sigmund Freud would feel comfortable diagnosing as having a ‘Madonna-Whore Complex’. Thus, Article 1 reflects the ‘fallen woman’, in that it requires the punishing of those who would, “even with her consent”, lead her away for immoral purposes; while Article 2 was meant to address the chaste, who are procured for immoral purposes “by, fraud, or by means of violence, threats, abuse of authority, or any other method of compulsion”.48

47 Articles 1 to 4, International Agreement for the Suppression of the White Slave Traffic, 18 May 1904. 48 Articles 1 and 2 of the International Convention for the Suppression of the White Traffic, 4 May 1910, read: Article 1: Whoever, in order to gratify the passions of another person, has procured, enticed, or led away, even with her consent, a woman or girl under age, for immoral

trafficking343 The regime of ‘white slavery’ was folded into the League of Nations through Article 23(c) of the 1919 Covenant of the League of Nations; though the language no longer emphasised race, but rather gender, as it entrusted to the League “the general supervision over the execution of agreements with regard to the traffic in women and children […]”. During the League of Nations era, two further international agreements emerged, the first was the 1921 International Convention for the Suppression of the Traffic in Women and Children, which supplemented the two previous agreements, requiring States that had not yet done so, to consent to the 1904 Agreement and the 1910 Convention “with the least possible delay”. The 1921 Convention further required contracting States to “take all measures to discover and prosecute persons who are engaged in the trafficking in children of both sexes. For children, consent was deemed to be irrelevant, as Article 1 of the 1910 Convention related to those who had been “procured, enticed, or led away” without their consent. The 1921 Convention also extended the scope of the previous two instruments, as it required States to punish not only the offences as set out in Articles 1 and 2 of the 1910 Convention, but also “attempts to commit, and, within the legal limits, of acts preparatory to the commission of” the crime of trafficking. The final two provisions of note set out in the 1921 Convention are those of Article 4, which made the offences of Articles 1 and 2 of the 1910 Convention extraditable; and Article 6, requiring the licensing of employment agencies to “ensure the protection of women and children seeking employment in another country”.49 Despite the fact that an expert body established by the Council of the League of Nations determined in 1927 that “the existence of licensed houses is undoubtedly an incentive to traffic both national and inter­ national”; and, in a 1932 study on Asia determined that “the principle factor in the promotion of international traffic in women in the East is the brothel”, there was a lack of political will to focus on brothels within the domestic jurisdiction of Members States.50 Instead, the second purposes, shall be punished, notwithstanding that the various acts constituting the offence may have been committed in different countries. Article 2: Whoever, in order to gratify the passions of another person, has, by fraud, or by means of violence, threats, abuse of authority, or any other method of compulsion, procured, enticed, or led away a woman or girl over age, for immoral purposes, shall also be punished, notwithstanding that the various acts constituting the offence may have been committed in different countries. 49 Articles 1–4, and 6, International Convention for the Suppression of the Traffic in Women and Children, 13 September 1921. 50 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination of Minorities, Working Group on Slavery,

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instrument introduced during the era of the League of Nations was the 1933 International Convention for the Suppression of the Traffic in Women of Full Age which was simply a further incremental move; this time addressing the issue of trafficking beyond the receiving State. The 1933 Convention mandated the holding of individuals responsible for trafficking “notwithstanding that various acts constituting the offence in question have been committed in different countries”. The provisions of the 1933 Convention only applied to fallen women and sought to deal with the issues of trafficking, not in the host country, but in the sending State: Article 1 reading: “Whoever, in order to gratify the passions of another person, has procured, enticed or led away even with her consent, a women or girl of full age of immoral purposes to be carried out in another country, shall be punished”.51 While the process toward a further instrument meant to consolidate the regime of trafficking was started in 1937, the breakdown of peace, in what would come to be known as the Inter-War Period, meant that work which originated with the League of Nations only bore fruit with the United Nations.52 With regard to the legal regime of trafficking, the United Nations first busied itself with transferring the ancillary obligations regarding notifications and deposit of instruments from the League of Nations to the United Nations.53 Having done so, the United Nations moved to the substance, producing the 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, from hence the term ‘the exploitation of the prostitution of others’ is derived. As between the States Parties, the 1950 Convention supersedes the four previous white slavery/trafficking instruments; its content meant to reflect much of what had come before it. That said, the Convention is explicit in its purpose of suppression prostitution, the Preamble, emphasising in its first paragraph: “Whereas prostitution and the accompanying evil of the Suppression of Trafficking in Persons and of the Exploitation of the Prostitution of Others: Note of the Secretary-General, 16 June 1976, UN Doc E/CN.4/Sub.2/AC.2/5, p. 3. 51 Article 1, International Convention for the Suppression of the Traffic in Women of Full Age, 11 October 1933. 52 See Preamble, Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 21 March 1950. 53 See Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children, Concluded at Geneva on 30 September 1921, and the Convention for the Suppression of the Traffic in Women of Full Age, Concluded at Geneva on 11 October 1933, 12 November, 1947; and Protocol Amending the International Agreement for the Suppression of the White Slave Traffic, Signed at Paris on 18 May 1904, and the International Convention for the Suppression of the White Slave Traffic, Signed at Paris on 4 May 1910, 4 May 1949.

trafficking345 traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community”. Article 1 demonstrates this added-value of the 1950 Convention, by requiring the punishing of any person who, to “gratify the passions of another”: “1. Procures, entices or leads away, for the purposes of prostitution, another person, even with the consent of that person”; but also “2. Exploits the prostitution of another person, even with the consent of that person”. By 1950, it was deemed possible to achieve what had not been possible during the early Twentieth Century: to end the licensing of brothels. While the provisions of Article 2(1), requiring the punishment of any person who “keeps or manages or knowingly finances or takes part in the financing of a brothel”; the 1950 Convention was also meant to put an end to State recognised prostitution. Article 6 reads: Each Party to the present Convention agrees to take all the necessary measures to repeal or abolish any existing law, regulation or administrative provision by virtue of which persons who engage in or are suspected of engaging in prostitution are subject either to special registration or to the possession of a special document or to any exceptional requirements for supervision or notification.

Ethan Nadelmann notes that the “creation of a global regime against the white slave trade accomplished, in the final analysis, relatively little towards its objective”.54 It was, he argued, the societal changes which rendered the regime in large part obsolete, as prostitution declined in the wake of colonialism, but also as a result of the limited demand for prostitution as “the supply of sex by women other than prostitutes has increased as the development of effective contraception and the onset of the ‘sexual revolution’ have greatly reduced the inhibitions of female sexual activity”.55 Thus, by 1978, a survey of States party to the 1950 Convention, indicated that no State had ‘license or recognize houses of prostitution” within their territory. That said, the institutional memory of the origins of trafficking come through in that 1978 survey, as despite the fact that the 1950 Convention makes no mention of the issue, States Party were asked what measures they undertook for the “combating of venereal disease”.56 54 Nadelmann, n. 43, p. 515. 55 Id., p. 516. 56 United Nations, Economic and Social Council, Commission on Human Rights, SubCommission on Prevention of Discrimination of Minorities, Working Group on Slavery, Suppression of Trafficking in Persons and of the Exploitation of the Prostitution of Others: Note of the Secretary-General, 14 June 1978, UN Doc E/CN.4/Sub.2/AC.2/20, pp. 2 and 4.

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chapter eight ‘Exploitation of the Prostitution of Others or Other Forms of Sexual Exploitation’

Despite, in historical terms, the limited demand for prostitution that manifest itself in the latter half of the Twentieth Century, the issue of ‘the exploitation of the prostitution of others’ remained on the agenda of the United Nations, though its content was never made explicit or inves­ tigated.57 Instead, it became a heading under which prostitution was equated with slavery with considerations within the United Nations devolved to the Working Group on Contemporary Forms of Slavery. The equating of prostitution to slavery was made most explicitly in 1983, by Jean Fernand-Laurent, the Special Rapporteur on the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, who noted that he, “like the Commission on Human Rights, considered prostitution to be a form of slavery”. Wherein “the alienation of the person is here more far-reaching than in slavery in its usual sense, where what is alienated is working strength, not intimacy”.58 While the term ‘the exploitation of the prostitution of others’ was exported from the 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, into the 2000 Palermo Protocol – the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime – an elaboration of the content of the phrase was not pursued during its negotiation. This was so, as in some instances States had legalised prostitution and once more licensed brothels. As such, a 2006 Interpretive Note provided by the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime states that the term ‘exploitation of the prostitution of others’ was left undefined in the Protocol on purpose, “which is therefore without prejudice to how States parties address prostitution in their respective domestic laws”.59 A bit more substance is

57 Note, for instance, Article 6, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, which reads: “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women”. 58 United Nations, Economic and Social Council, Activities for the Advancement of Women: Equality, Development and Peace, Report of Jean Fernand-Laurent, the Special Rapporteur on the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, 17 March 1983, UN Doc. E/1983/7, pp. 6 and 7. 59 Travaux Préparatoires, n. 6, p. 347.

trafficking347 to be gleaned from the UN Office of Drugs and Crime and its Model Law against Trafficking in Persons. Beyond making reference to the Interpretive Note, the UN Office of Drugs and Crime explains that “there is no obligation under the Protocol to criminalize prostitution. Different legal systems – whether or not they legalize, regulate, tolerate or criminalize (the exploitation of the prostitution of others) non-coerced adult prostitution – comply with the Protocol”. That said, the true worth to be drawn from the Model Law on this topic, is the following advice of the UN Office of Drugs and Crime: “If using these terms in the law, it is advisable to define them”.60 As for States, while Brazil, Burkina Faso, Cambodia, Egypt, Haiti, Luxembourg utilise the phrase in their legislation ‘the exploitation of the prostitution of others’, none have felt compelled to heed the advice of the UN Office of Drugs and Crime and define it. With little basis to go on, in establishing what constitutes ‘the exploitation of the prostitution of others’, it may be better to simply recognise that prostitution as labour. While States might outlaw prostitution or prescribe sex work, it should be recognised that prostitution is work. States may see an interest in providing special safeguards or outlawing this type of labour but, alas, it remains labour. As such, the regimes already discussed regarding exploitation, forced labour, and slavery would capture the ‘exploitation of the prostitution of others’. Thus, labour deemed exploitive will be such labour as falls below international labour standards as incorporated in the domestic legal system of the State in question – in other words, illegal labour practices. Where such exploitation would meet the threshold of forced labour or slavery would also be a question of law, the first turning on the lack of consent to work carried out under threat, the second on the exercise of the powers attaching to the right of ownership. Before going on to consider trafficking beyond its exploitation element, it will be recalled that ‘exploitation of the prostitution of others’, was but one element of a phrase which goes on to read ‘or other forms of sexual exploitation’. The Interpretive Note of the Ad Hoc Committee states the same with regard to the latter phrase as it does with regard to the former: that it has been left undefined, leaving it to the domestic legal order to address other forms of sexual exploitation as they might see fit. During the negotiations of the Palermo Protocol, with regard to the provisions related to ‘or other forms of sexual exploitation’, The Netherlands – a State which has legalised prostitution – sought to assimilate sexual exploitation to 60 See United Nations, United Nations Office on Drugs and Crime, Model Law against Trafficking in Persons, 2009, p. 14.

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slavery and servitude. While this suggestion was not followed up on, reference in the context of sexual exploitation was made to the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography which was still in draft form.61 The Optional Protocol does not add much in concrete terms to our understanding of sexual exploitation, as it does not elaborate on this provision which speaks simply of “sexual exploitation of children”.62 The UN Office of Drugs and Crime does better with regard to sexual exploitation than with ‘the exploitation of the prostitution of others’, as at least here it prefers a definition to be included in a model law: ‘Sexual exploitation’ shall mean the obtaining of financial or other benefits through the involvement of another person in prostitution, sexual servitude or other kinds of sexual services, including pornographic acts or the production of pornographic materials; […].

As for States, they have not sought to define sexual exploitation, instead they have given it content by enumerating various activities that are deemed to fall under its heading. Thus, Bolivia established that sexual exploitation includes “pornography, paedophilia, sex tourism, commercial sexual violence” within its trafficking legislation.63 For Liberia, beyond the exploitation of prostitution of another, commercial sexual exploitation includes, but is not limited to: “pimping, pandering, procuring, profiting from prostitution, maintaining a brothel, and child pornography”.64 Com­ pared to other States that have legislated against sexual exploitation, New Zealand has gone to great lengths to engage with the topic.65 As for 61 See Travaux Préparatoires, p. 339, n. 6, p. 339, fn. 2, and p. 340, fn. 5. 62 Article 3, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 25 March 2000, reads in part:”Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether such offences are committed domestically or transnationally or on an individual or organized basis: (a) In the context of sale of children as defined in article 2:   (i)  Offering, delivering or accepting, by whatever means, a child for the purpose of:    a. Sexual exploitation of the child; […].” 63 See Article 281 bis, Trafficking and Trafficking in Persons and Other Related Offences Law of 18 January 2006. 64 Article 1(102) An Act to Ban Trafficking in Persons within the Republic of Liberia, July 5, 2005. 65 Section 98 AA, Crimes Act 1961 No 43 (01 June 2010) reads, inter alia: (1) Everyone is liable to imprisonment for a term not exceeding 14 years who – (a) sells, buys, transfers, barters, rents, hires, or in any other way enters into a

trafficking349 Mauritius, Mozambique, Philippines, Tanzania, Thailand and Zambia, these States have determined that sexual exploitation is applicable to prostitution and pornography within their anti-trafficking legislation.66 This is rather interesting in light of Anne Gallagher’s remarks that “there was a clear consensus within the drafting group that the Trafficking Protocol definition was not to extend to prostitution or pornography per se”.67

dealing involving a person under the age of 18 years for the purpose of – (i) the sexual exploitation of the person; […].(3) For the purposes of subsection (1) sexual exploitation, in relation to a person, includes the following acts:  (a) the taking by any means, or transmission by any means, of still or moving images of the person engaged in explicit sexual activities (whether real or simulated):  (b) the taking by any means or transmission by any means, for a material benefit, of still or moving images of the person’s genitalia, anus, or breasts (not being an act described in subsection (4) or subsection (5)):  (c) the person’s participation in a performance or display (not being an act described in subsection (4)) that—    (i) is undertaken for a material benefit; and    (ii) involves the exposure of the person’s genitalia, anus, or breasts:  (d) the person’s undertaking of an activity (for example, employment in a restaurant) that—    (i) is undertaken for a material benefit; and    (ii) involves the exposure of the person’s genitalia, anus, or breasts. (4) For the purposes of paragraphs (b) and (c) of subsection (3), sexual exploitation, in relation to a person, does not include the recording or transmission of an artistic or cultural performance or display honestly undertaken primarily for purposes other than the exposure of body parts for the sexual gratification of viewers. (5) For the purposes of subsection (3)(b), sexual exploitation, in relation to a person, does not include the taking or transmission of images of the person’s genitalia, anus, or breasts for the purpose of depicting a medical condition, or a surgical or medical technique, for the instruction or information of health professionals. (6) For the purposes of subsection (3)(b), sexual exploitation, in relation to a person, does not include the taking or transmission of images of the person’s genitalia, anus, or breasts if the images are honestly intended – (a) to provide medical or health education; or (b) to provide information relating to medical or health matters; or (c) to advertise a product, instrument, or service intended to be used for medical or health purposes. 66 For Mauritius: Section 4, Combating of Trafficking in Persons Act 2009; Mozambique: Article 31, Law Nr. 6/2008 of 9 July; for Philippines: Section 3(f) Anti-Trafficking in Persons Act of 2003; for Tanzania: Section 1(3)(b), The Anti-Trafficking in Persons Act, 2008; for Thailand: Section 4, The Anti-Trafficking in Persons Act B.E 2551 (2008); and for Zambia: Schedule 1, The Anti-Human Trafficking Act, 2008 Part I – IV. 67 Anne Gallagher, The International Law of Human Trafficking, 2010, pp. 38–39.

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chapter eight The Overall Definition of Trafficking in Persons

In international law, the term exploitation, where it relates to persons is not defined, instead it is enumerated. Over time, various international instruments have sought to abolish or circumscribe a number of activities, the fullest expression of these is found in the definition of trafficking in persons within the Palermo Protocol. Yet, as set out, the provisions on exploitation allow for the possibility of more types of exploitation being developed. It will be recalled that the relevant provision of the Palermo Protocol reads: ‘Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’. It would be a mistake to attempt to deduce common characteristics from these various activities and to then seek to establish in law what might be considered exploitation. The manner in which the provision is laid out is not definitional but categorical. The manner in which the sentence starts, that ‘exploitation shall include, at a minimum’ speaks to adding various new type of exploitive behaviour rather than seeking to establish what constitutes ‘exploitation’. Although I have sought to explain the concept by reference to Wertheimer’s idiom ‘taking unfair advantage of another’ as measured by the standard of international law; exploitation should, in the legal context of the definition of trafficking in persons, be understood as the sum of its parts: as the various examples set out, and considered, in detail in this study. For their part, a number of States have taken the opportunity of the invitation to prescribe various other activities as constituting exploita­ tion  made possible by the open-ended nature of the provisions related to exploitation (re: ‘exploitation shall include, at a minimum, […]’).68 Thus, for Members of the European Union, the notion of exploitation has been expanded to “forced labour or services, including begging” and “the exploitation of criminal activities”.69 Where begging is concerned, the preambular paragraphs in the 2011 Directive on Preventing and Combating 68 During the negotiation process, a number of other types of exploitation – beyond those that ultimately found their way into the Palermo Protocol – were mooted, with thought having been given to their inclusion in a footnote. Instead, what won the day were those States which “favoured the words ‘at a minimum’ to ensure that unnamed or new forms of exploitation would not be excluded by implication”. See Travaux Préparatoires, n. 6, p. 344, fn. 30. 69 Article 2(3), European Union, Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, replacing Council Framework Decision 2002/629/JHA.

trafficking351 Trafficking in Human Beings and Protecting its Victims make plain that this is not the introduction of a new type of exploitation, but one which falls within the parameters of forced labour – in other words it is simply drawing attention to the phenomenon of begging: Within the context of this Directive, forced begging should be understood as a form of forced labour or services as defined in the 1930 ILO Convention No 29 concerning Forced or Compulsory Labour. Therefore, the exploitation of begging, including the use of a trafficked dependent person for begging, falls within the scope of the definition of trafficking in human beings only when all the elements of forced labour or services occur. In the light of the relevant case-law, the validity of any possible consent to perform such labour or services should be evaluated on a case-by-case basis. However, when a child is concerned, no possible consent should ever be considered valid.70

The Directive goes on to give content to the notion of ‘the exploitation of criminal activities’ noting that it ‘should be understood as the exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain”. Finally, while the provision dealing with exploitation within the Directive make no mention of it, the explanation of the substance found in the preambular paragraphs notes that exploitation may also cover “other behaviour such as illegal adoption or forced marriage in so far as they fulfil the constitutive elements of trafficking in human beings”.71 While a number of States have included provisions related to begging, illegal adoption and forced marriage into their domestic legislation related to trafficking in persons, a number of States have included other types of activities deemed, for the purposes of human trafficking, to constitute exploitation. Thus Argentina speaks of the “unlawful removal of human organs” versus the trafficking of persons for their organs; Benin, of work which by its “nature and/or conditions under which it is carried out is likely to harm the health, safety, or morals of a child”. For its part, Bolivia prescribes the trafficking of persons into farm labour; while Bulgaria speaks of “the illegal use of human beings for debauchery” and Colombia of “sexual tourism”. Ethiopia has dealt with a very specific issue, deeming the unlawful sending of Ethiopian women abroad to work as constituting the exploitation element of trafficking in persons: “Whoever, without having obtained a license or by any other unlawful means, sends an Ethiopian 70 Preamble Paragraph 11, id. 71 Id.

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woman for work abroad”. Greece has established that “recruitment of children to use in armed conflict” and Norway has deemed that the trafficking for “war service in a foreign country” are recognised as exploitation; while Sierra Leone has prohibited “exploitation during armed conflicts” within its trafficking legislations. Kenya, for its part, has two unique provisions: “forcible or fraudulent use of any human being to take part in armed conflict” and “child marriage”. For Luxembourg, exploitation also transpires where a person forces another to commit “a felony or misdemeanour, against his will”; for Mauritania, “unpaid work” has been included in its provisions on trafficking; and for Moldova, exploitation includes “abandonment abroad”. With regard to Poland, having enumerated a number of the examples of exploitation set out in the Palermo Protocol, it continues: “[…] or other forms of usage resulting humiliation of human dignity”; while Uruguay mirrors this provision by speaking of “[…] or any activity that undermines human dignity”. Finally, the anti-trafficking legislation of the former Yugoslav Republic of Macedonia includes “forced fertilization” within its recognised examples of exploitation.72 Having closed the bracket on the ‘purpose’ element of the definition of trafficking, attention can now be given to the ‘methods’ and the ‘means’ elements in turn to provide context to the overall study. With regard to the methods utilised in cases of trafficking, the Palermo Protocol provides the sense of Bewegung – of movement – in that it speaks of “the recruitment, transportation, transfer, harbouring or receipt of persons”. There has been very little consideration of the content of these provisions either in the negotiation process, in setting out the domestic legislation meant to cover trafficking in persons, or in the jurisprudence resulting from this legislation. The phrase ‘recruitment, transportation, transfer, harbouring or receipt of persons’, was suggested by the United States during the first session of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, and remained unchanged throughout the negotiation process.73 Prior to its inclusion in the Palermo Protocol, the notion of ‘harbouring’ of persons was unfamiliar to international law, though it has been part of the fabric United States legislation relating to aliens from the early as 1952.74

72 See Slavery in Domestic Legislations database: http://www.qub.ac.uk/slavery/. 73 See Travaux Préparatoires, n. 6, p. 349. 74 See current Code of Laws of the United States of America: 8 USC § 1324 ‘Bringing in and Harboring certain Aliens’, was introduced on 27 June 1952.

trafficking353 The overall impression of these various methods by which human trafficking takes place, as conceived in the Palermo Protocol – with reference to it being a protocol to the 2000 United Nations Convention against Transnational Organized Crime – is that trafficking in persons takes place within the context of organised crime. That is, the movement of a person must have involved “a structured group of three or more persons existing for a period of time and acting in concert” and must have taken place over an international border.75 In other words, as conceived, the Palermo Note that in their joint study of trafficking in persons for their organs and of trafficking in organs, the Council of Europe and the United Nations put forward a reading of the various methods set out in the definition of trafficking in persons as follows: Recruitment is to be understood in a broad sense, meaning any activity leading from the commitment or engagement of another individual to his or her exploitation. It is not confined to the use of certain means and therefore also includes the use of modern information technologies. As the term is described generally, recruitment by one of the means for the purpose of [exploitation] is regarded as trafficking in human beings […] regardless of how the recruitment is performed – whether through personal contact or contact through third persons, newspapers, advertisements or the Internet. Transportation is also a general term and does not define any particular means or kinds of transportation. The act of transporting a person from one place to another constitutes this element; […] The transfer of a person includes any kind of handing over or transmission of a person to another person. This is particularly important in certain cultural environments where control over individuals (mostly family members) may be handed over to other people. As the term and the scope of the offence are broad, the explicit or implied offering of a person for transfer is sufficient; the offer does not have to be accepted for the offence of trafficking in human beings to be constituted if the other elements are also present. The harbouring of persons means accommodating or housing persons in whatever way, whether during their journey to their final destination or at the place of the exploitation. The receipt of persons is not limited to receiving them at the place where the exploitation takes place either, but also means meeting victims at agreed places on their journey to give them further information on where to go or what to do. Council of Europe and United Nations, Trafficking in Organs, Tissues and Cells and Trafficking in persons for the Purpose of the Removal of Organs, 2009, Directorate General of Human Rights and Legal Affairs, Council of Europe, pp. 78–79. 75 Article 4, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, 15 November 2000 reads: This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those offences are transnational in nature and involve an organized criminal group, as well as to the protection of victims of such offences. The definition provided in this quote is of an ‘organized criminal group’, which is found at Article 2(a), United Nations Convention against Transnational Organized Crime, 15 November 2000.

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Protocol was meant to address the process by which a person was identified and recruited so as to be transported across an international border to be held (harboured) or handed over to a person, so that they might be exploited.76 Ann Gallagher goes much further in her reading of this provision placing emphasis on the provision of harbouring and receipt. She states that these provisions “operate to bring not just the process (recruitment, transportation, transfer) but also the end situation of trafficking within the definition”. She continues: In other words, whereas buying or otherwise taking possession of an individual through any of the stipulated means for purposes of exploiting would fall within the definition of trafficking, maintaining an individual in a situation of exploitation through any of the stipulated means would, according to the plain meaning of the text, also amount to trafficking. The breadth of the action element has the effect of bringing, within potential reach of the definition, not just recruiters, brokers, and transporters but also owners, and managers, supervisors, and controllers of any place of exploitation such as a brothel, farm, boat, factory, medical facility, or household.  Potentially, this could result in the concept of trafficking being extended to situations of exploitation in which there was no preceding process. Intergenerational bonded labour is one examp