The Legal Definition of Slavery into the Twenty-First Century, Jean Allain

The Legal Definition of Slavery into the Twenty-First Century

Jean Allain

While slavery has existed since time immemorial and the abolitionist movement for more than two hundred years, it is curious that the legal definition of slavery, though established nearly a century ago, has remained until recently marginal in seeking to end human exploitation. Although the definition of slavery, established by the League of Nations in 1926 as ‘the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercise’, is accepted as a norm of international law, its effectiveness has only recently gained traction. Why, more than seventy-five years after states agreed the definition of slavery, has it only in the twenty-first century become a live anti-slavery tool? The answer is to be found in the political dynamics of the twentieth century, as the dictates of colonialism and decolonisation each, in its own way, allowed the definition to slip from the radar.

There is no escaping the fact that the definition of slavery emerged at the height of European imperialism qua colonialism, during the League of Nations era wherein it was meant to be applicable, in the main, to the ‘Other’: to non-League members. The very move to establish an international treaty to address slavery was precipitated by a focus on the Empire of Ethiopia. Likewise, an international Commission of Inquiry was established in 1930 to determine ‘whether slavery as defined in the anti-slavery convention in fact exists’ as against the only other independent country in Africa, the Republic of Liberia. And yet, the Commission of Inquiry would develop a novel interpretation of the 1926 definition of slavery that would allow it to go beyond its mandate with the final result being the forced resignation of the Liberian President and Vice-President.

For its part, the 1956 Supplementary Convention, which reproduced the 1926 definition of slavery, can be seen as one of the last pieces of colonial legislation, a parting shot dealing with debt-bondage, serfdom, servile marriage and child trafficking: activities taking place in the newly independent Indian sub-continent and throughout much of colonial Africa and Asia.

As the decolonisation process took place, the Soviet Union lent its support to newly independent States which, with the new found majority in the democratic organs of the United Nations, sought to assert a different understanding of slavery. The empire struck back, seeing in apartheid and colonialism two further instances of servitude such as those incorporated in the 1956 Supplementary Convention. While the attempt to incorporate new servitudes into the 1956 Convention failed, what was left was an obfuscation of that law which materialised into a stalemate in which the distinction between legal obligations and policy consideration was blurred, resulting in the definition of slavery falling into abeyance.

With the decolonisation process having run its course, it was the end of the Cold War which produced, in its wake, two primary streams which joined together to give new life to the definition of slavery. The first was the realisation that migration streaming from the former Soviet Union had a dark side, which was then addressed by both United Nations and Council of Europe conventions related to trafficking in persons, which both include provisions regarding slavery. The second stream was the creation of institutions of international criminal justice which are manifest in the Yugoslav and Rwanda tribunals, which then led to the birth of the International Criminal Court; each of these instances established ‘enslavement’ as a crime under its jurisdiction.

This chapter, then, turns on three periods of the twentieth century as they relate to the definition of slavery: the period from 1922 to 1956, when the legal parameters of slavery were drawn against a colonial backdrop; the period from 1966 to 1989 when decolonisation meant a focus away from the legal definition of slavery; and finally the period from 1989 onwards which, with the end of the Cold War, saw the growth of international criminal laws, which provided for a renewed emphasis on slavery and a consideration of the 1926 definition in light of the requirements of criminal justice.

A. 1922–1956—Establishing the Legal Regime

At the international level, a definition of slavery was finally developed in the twentieth century, by the League of Nations. The issue of slavery was first considered in 1922 when a resolution originally meant to target Ethiopia travelled through the legislative process and in so doing was redrafted first as a resolution directed towards Africa, then, in its ultimate form, passed by the Assembly of the League of Nations as a more general resolution adding slavery to its agenda and requesting a report be drawn up.1 That request led to the establishment, in 1924, of the Temporary Slavery Commission, a body of experts whose work constitutes the intellectual DNA of much of what is found not only in the 1926 Slavery Convention, but also the United Nations 1956 Supplementary Convention.

In 1922, the British Member of the Permanent Mandates Commission, Frederick Lugard, circulated a memorandum which proposed that Ethiopia be placed under a Mandate shared by France, Italy and the United Kingdom, or administered directly by the League of Nations, because of that State’s inability to suppress the slave trade.2 Functioning within an international relations paradigm which created a dichotomy between European States (and their New World progeny) that is: ‘civilised nations’ and the ‘Other’: entities which had yet to meet the European standard of civilisation and thus were not recognised as forming part of the international community; Ethiopia found itself in a precarious situation.3 Its response was to apply for, and very quickly be granted, admission to the League of Nations in 1923; a move which the British Delegate to the League of Nations considered, in part, a means of Ethiopia raising ‘herself in the scale of civilisation’.4 However, admission to the League of Nations by Ethiopia was conditional upon signing a declaration adhering to provisions of the 1919 Convention of Saint Germain-en-Laye relating to an embargo on armaments, but also included an ‘endeavour to secure the complete suppression of slavery in all its forms and of the slave trade by land and sea’.5 Such an adherence, it was explained to Ethiopia by an Italian Delegate of the League of Nations was not meant to offend but instead, simply to demonstrate that the African State ‘had arrived at a higher degree of civilisation’.6

Despite the new status of Ethiopia, the issue of its suppression of the slave trade would persist within the League of Nations and the possibility of an inquiry to be held into slavery in Ethiopia was mooted in 1924 and later in 1931.7 While these fact-finding missions did not materialise, the issue of slavery in Ethiopia was central to what can be deemed one of the lowest points of the history of League of Nations: the annexation of Ethiopia by Italy in 1936. To justify its invasion of Ethiopia, Italy sought to delegitimise it as a less-than-equal state. The Italian Representative presented to the League of Nations Council a long memorandum which, as The Times of London reported ‘turns to the alleged violations of the special pledges made’ by Ethiopia, ‘especially that regarding the repression of slavery’.8 From the Italian perspective, ‘Ethiopia has shown that she does not possess the qualifications necessary to enable her to obtain, through participation in the League, the impulse required to raise herself by voluntary efforts to the level of the other civilised nations’.9 Thus, it was in this context of the suppression of slavery as a standard of civilisation that the 1926 Slavery Convention and the definition of slavery emerged. Yet, as Gerry Simpson makes clear, the notion of ‘civilisation’ was ‘a usefully elusive term, [as] the standard of civilisation was a way of imposing a particular set of values on the international legal order’.10

While slavery was deemed to be unacceptable to ‘civilised nations’, it should be noted that forced labour was not; in fact, it was deemed essential to the civilising mission. As Viscount Cecil of Chelwood, the British Delegate to the League of Nations and the person who was most responsible for the language found in the definition of slavery, noted: ‘I do not think that there is any nation, civilised or uncivilised, which does not possess powers enabling the Government, for certain purposes and under certain restrictions, to require forced or compulsory labour on the part of its citizens’.11 However, forced labour was deemed a true necessity for the colonial Powers so as to develop ‘in the interests of humanity’, no less, ‘the riches and resources of those African countries placed under their sovereignty’.12 It was in this colonial context that the 1926 definition of slavery would emerge.

The work of the Temporary Slavery Commission in 1924 and 1925 was instrumental as setting out the parameters of the forms of human exploitation which would be included not only in the 1926 Slavery Convention, and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, but its work pervades our understanding of human exploitation to this day.13 The Temporary Slavery Commission having considered various forms of exploitation transpiring around the world under the rubrics of slavery, proposed the establishment of a legal instrument encompassing many forms of exploitation. However, this was not to be, as the panel of independent experts which had constituted the Temporary Slavery Commission gave way to statesmen, such as Robert Cecil—Viscount Cecil of Chelwood, the son of former British Prime Minister Salisbury and winner of the Nobel Peace Prize—who acted as Rapporteur and moved the drafting process towards acceptance by States as the 1926 Slavery Convention. Despite proposals by Germany and Haiti to included lesser servitudes mentioned by the Temporary Slavery Commission, such as sham adoption and childhood marriage into the definition of slavery, this was not accepted by the drafting committee.14 Instead, after a number of draft versions of a definition of slavery were considered, Robert Cecil proposed, on 22 September 1925, a definition which would ultimately become Article 1(1) of the 1926 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’.15 The definition thus turns on the exercise of the powers attaching themselves to the right of ownership. In 1936, the League of Nations Committee of Experts on Slavery set out its understanding of the definition of slavery in considering the issues of serfdom and debt bondage, by emphasising that a distinction is to be made between slavery as defined by the 1926 Convention and lesser forms of exploitation. First, with regard to serfdom:

It is important, however, to keep the fundamental distinction clearly in mind, and to realize 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’.16

The Committee of Experts on Slavery was more explicit in regard to its considerations of debt bondage which it noted ‘is not “slavery” within the definition set forth in Article 1 of the 1926 Convention, unless any or all of the powers attaching to the right of ownership are exercised by the master’.17 Thus, the powers attached to the right of ownership are the sine qua non of slavery.

Yet, even during the League of Nations’ era, the definition of slavery, as established by the 1926 Slavery Convention, was seen to impede the colonial project as in a number of instances it was felt that a wider definition as envisioned by the Temporary Slavery Commission would serve a higher purpose. Such a purpose was used against the Republic of Liberia in 1930. Here then we witness the first expression of an expanded understanding of the definition of ‘slavery’ in the Report of the 1930 International Commission of Inquiry into the Existence of Slavery and Forced Labour in the Republic of Liberia, which was constituted by a member of the League of Nations Secretariat along with an American and Liberian Commissioner.18

As part of its remit, the Commission was asked ‘whether slavery as defined in the anti-slavery convention in fact exists in the Republic’. The International Commission of Inquiry noted that the ‘definition of slavery as formulated by the anti-slavery convention admittedly avoids detailed description for a comprehensive formula. In its present form it leaves little room for distinguishing between degrees of restrictive freedom’. As a result, the Commission of Inquiry sought to justify a wider understanding of slavery so as to be able to investigate lesser forms of servitude which it said were analogous to slavery. This was so as it was clear that what was persisting in Liberia was in fact forced labour and other types of servitudes, not slavery.

In considering the 1926 definition of slavery as against lesser servitudes, the International Commission of Inquiry noted:

The status in which ‘any or all of the powers attaching to the right of ownership are exercised,’ becomes, thus, as a definition against which to make judgement in a given condition in Liberia, too inadequate in one sense and too comprehensive in another.

Powers attaching to the right of ownership, for example, are as much involved in customary recognition of the authority of the chiefs, and of native marriage as in adoption or in milder forms of domestic slavery generally. The concept of slavery most common in the literature of abolition is that of an institution, involving a commercialized traffic, slave raiding, transfer by slave, inheritance or gift, and characterized by exercise of all right of ownership.

The Commission then stepped beyond its mandate, which had been to ascertain whether slavery as set out in 1926 existed in Liberia, arguing that the issue of permanence, which was not found in the definition, should be taken into consideration:

It becomes a question of whether raiding, capture, and exchange for money according to the will of the master, and constituting a condition exactly analogous to slave raiding, slave dealing, and slave trading, but usually for a limited period, rather than for the lifetime of the subject, are to be classed with domestic slavery as practiced among tribes, which in its present commonest forms does not appear to be as inhumanely exacting. There is the further question whether practices restrictive of the liberty the persons and analogous to slavery, which are apparently temporary but tend to become permanent in practice, from lack of power of legal redress on the part of the person involved, are reasonably to be viewed as slavery proper.19

The International Commission then truncated the following 1926 Report to the Assembly of the League of Nations by Viscount Cecil of Chelwood so as to make it read in support of its expansive reading of the definition. It did this by failing to mention that for domestic slavery to be considered ‘slavery’, a power attached to the right of ownership had to be exercised:

The Report of the Assembly Committee responsible for drafting of the convention has explained that reference to domestic slavery and similar conditions was omitted ‘because it was believed that such conditions came within the definition of slavery contained in the first article and that no further prohibition of them in express terms was necessary. This applies not only to domestic slavery but to all those conditions mentioned by the Temporary Slavery Commission i.e., debt slavery, enslaving of persons disguised as payment of dowry, etc.’.

The Commission went on to say that ‘two important provisos of the anti-slavery convention, as signed by 36 governments and ratified by the United States Government were “to bring about … as soon as possible the complete abolition of slavery in all its forms” and “to take all necessary measures to prevent compulsory and forced labour from developing into conditions analogous to slavery”’.20 As a result, the International Commission of Inquiry re-drew its mandate having ‘carefully considering many sets of evidence, embodied in documents, testimony, and records of individual observations of the Commissioners in the hinterlands, finds itself, in point of its findings, between the two provisos of the convention’. The Commission thus set out its expanded mandate as such:

And while it feels that it would be quite justifiable, within the limits of the definition to include a large portion of its data and observations under item (a) [re: the Terms of Reference: ‘whether slavery as defined in the anti-slavery convention in fact exists in the Republic’], in the interest of achieving the objective of the convention ‘to bring about the abolition of slavery in all its forms’, it has decided to group its evidence which shall be the basis of its findings under the following divisions:

A. Common slavery

1. Oppressive forms of slavery involving a commercialized traffic, and transfer of slavers and their offspring by sale, gift, or inheritance.

2. Domestic slavery as practiced inter-tribally and intra-tribally in Liberia, involving full proprietary rights, and related to the social system of tribes involved.

3. Pawning.

B. Oppressive practices restrictive of the freedom of persons, constituting conditions analogous to slavery and tending to acquire the status of common or classic slavery21

The International Commission of Inquiry itself acknowledged that ‘the “definition” of slavery is not so important to the welfare of Liberia’;22 and as a result was willing to expand its understanding of ‘slavery’, in part, through the truncating and thus misrepresentation and misinterpretation of the Cecil Report. It thus went beyond the definition of slavery as found at Article 1(a) of the 1926 Convention and the exercise of the powers attaching to the right of ownership, extending its consideration to servile practices which did not necessarily amount to slavery.23

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