By the best available estimates, between one in 162 and one in 400 people currently alive is trapped in a situation of slavery or forced labour. Mauritanians are born into hereditary or ‘chattel’ slavery. Indian families suffer in debt bondage in brick kilns. Migrants from Myanmar are forced to work on Thai fishing boats. Construction workers are trafficked into construction projects in Qatar. Girls are abducted into sexual slavery by Boko Haram and Islamic State and political prisoners are enslaved in North Korea.
How is this possible, in a world in which slavery is prohibited at all times and in all places? And what should international criminal law do about it?
Despite the age, breadth and depth of international obligations to prevent, criminalize and punish slavery crimes, these practices not only persist but even flourish in many countries. The gap between the theoretical protection offered by international law, and the reality of non-enforcement is wide and shocking – and almost wholly unremarked by international criminal lawyers.
The limited potential of international criminal justice to address modern slavery may seem obvious. The tools of contemporary international criminal justice have been shaped to tackle political violence and mass atrocity, not economic injustice, corporate malfeasance or the moral complicity of mass consumption markets. The limited reach of international criminal law beyond national borders, and its vulnerability to being blunted by blatant domestic politicking, becomes clearer with every successful effort by national governments to stymie the International Criminal Court.
All of this seems to suggest that international criminal justice is not the right tool to reach for, if the aim is to effectively fight modern slavery, rather than line the pockets of international criminal lawyers.
Dismissing the inquiry into the potential of international criminal justice for fighting slavery at this point would, however, overlook the fact that international criminal law already recognizes both slavery and enslavement, and various related practices (notably sexual slavery) as crimes, attracting in some cases universal jurisdiction. These are potentially powerful tools for disrupting, punishing and, perhaps, deterring slavery crimes. If international criminal justice already recognizes slavery crimes, is the question really whether it is the ‘right’ tool, or in fact whether we are using these existing tools in the right way?
Perhaps tackling slavery is not in fact alien to international criminal justice, but rather a forgotten part of what created international criminal justice in the first place. The tools are there. The question is how best to use them.
Professor Harmen van der Wilt has recently mapped prosecutions of slavery crimes at the Nuremberg and Tokyo tribunals and the ad hoc international criminal tribunals, and Karen Corrie ponders in another recent piece whether slavery crimes can be effectively prosecuted at the International Criminal Court, identifying several obstacles. But this is not the end of the story. There are various other ways in which investigations, prosecution, and discussion of slavery in international criminal justice contexts may contribute to effective anti-slavery efforts. As Urmila Bhoola, the UN Special Rapporteur on contemporary forms of slavery, has explained, international criminal justice intersects with the UN’s human rights mechanisms in important ways. Helen Duffy has shown how international criminal law connects up with growing anti-slavery litigation in regional human rights bodies. Beate Andrees from the International Labour Organization has explored the complementary nature of international labour standards and international criminal law, and Cécile Aptel has explored how existing international criminal jurisprudence overlaps with international child protection norms. Florian Jeßberger, Amol Mehra and Katie Shay note the actual and potential influence of international criminal law on corporate anti-slavery efforts. And Nicole Siller has examined the intersection of slavery and human trafficking norms.
So where does this leave the International Criminal Court? There are significant challenges for the ICC to be successful in prosecuting slavery crimes, relating to jurisdiction, resources and political will, but these obstacles can – and should – be overcome. The most likely prosecutions relate to the open promotion of enslavement by the Islamic State and Boko Haram. ICC prosecution of transnational human trafficking organizations is also theoretically feasible – and might help relieve some of the criticism the ICC perennially attracts for excessive focus on African cases. More importantly, perhaps, ICC efforts to investigate and prosecute slavery crimes would help clarify the obligations of different actors – states, non-state armed groups, corporations, corporate directors – to prevent, punish and remedy slavery crimes. They may also help to draw the attention of regional- and national-level actors to the potential use of international criminal justice tools to tackle slavery. As David Tolbert and Laura Smith of the International Centre for Transitional Justice have shown, the ICC Assembly of States Parties could actively promote such efforts, through discussions around the ‘complementarity’ of national and Hague-level slavery prosecutions, within the ICC framework.
Left to its own devices, international criminal justice has made only marginal, sporadic, normative contributions to the fight against slavery. These are important, but not transformative. On the contrary, the status quo suggests a tragic hypocrisy: even as international criminal justice condemns slavery in no uncertain terms, it tolerates millions of people living in these conditions. That is not a result that is good for those people, for international criminal justice, or for humanity, whom it purports to serve. The silence of international criminal justice on this topic should be addressed. International prosecutions will not eradicate modern slavery. But they will get us closer to that goal.
Featured image credit: feet-tangermünde-foot-ten-shackles by Mondfeuer. CC0 Public Domain via Pixabay.
These practices not only persist but even remain un-criminalized in many countries.