Under Color of Law: Siliadin v France and the Dynamics of Enslavement in Historical Perspective, Rebecca J. Scott
Rebecca J. Scott
When is it appropriate to apply the term ‘slavery’—a concept that appears to rest on a property right—to patterns of exploitation in contemporary society, when no state extends formal recognition to the possibility of the ownership of property in a human being?1 Historians, who generally position themselves as enemies of anachronism, may be particularly resistant to the use of an ancient term to describe a twenty-first century reality. And jurists have often been understandably reluctant to employ a word whose historical meaning was so closely tied to a specific property relationship that has long since been abolished in Europe and the Americas.2
The case of Siwa Akofa Siliadin, a young Togolese woman held by a Parisian family as an involuntary domestic servant from 1995 to 1998, reflects this reluctance by courts to reach for the term ‘slavery’ in contemporary cases. Indeed, although the French court of first instance did find her exploiters to be guilty of obtaining unremunerated labor from a ‘vulnerable and dependent person’, that conviction was overturned upon appeal. Brought to France at the age of fifteen with a false promise of schooling and immigration assistance, Siliadin had been passed along to a couple who obliged her to labor as a housemaid and care for children for more than three years, without pay, ‘from 7.30 a.m. until 10.30 p.m. every day with no days off’. The couple confiscated her passport and generally did not allow her to leave their apartment except to accompany the children to school and, ‘occasionally and exceptionally’, to attend mass. Living without proper papers, the young woman believed that she risked jail if she spoke to anyone about her circumstances.3
The sequence of events illustrates the difficulty of adequately characterizing the offense in question. The Comité contre l’esclavage moderne (Committee Against Modern Slavery) assisted with the initial filing of a complaint on Siliadin’s behalf. The Paris Tribunal de Grande Instance found the defendants to have violated the provision of the Criminal Code that prohibited insufficiently remunerating a person’s labor by taking advantage of ‘that person’s vulnerability or state of dependence’ (Art. 225–13), but acquitted them on the charge of subjecting a person in a vulnerable or dependent state to working or living conditions ‘incompatible with human dignity’ (Art. 225–14). The defendants were sentenced to several months’ imprisonment, a substantial fine, and the payment of damages to the complainant.4
The defendants appealed, and the Paris Court of Appeal acquitted them of all the charges, expressing skepticism about the claim of vulnerability, citing the complainant’s ability to speak French and her having accompanied the children to events outside the home. The prosecutor did not appeal further on the criminal charges, thus ending that portion of the case, but Ms Siliadin’s lawyers appealed to the Court of Cassation on the question of damages. The Court of Cassation quashed the lower court’s decision to acquit on the civil charges, and remitted the case to the Versailles Tribunal. In 2003, the Versailles court upheld the demand for compensation on the first count, but reiterated that the couple were not guilty of the imposition of conditions incompatible with human dignity, long hours of work caring for children being ‘the lot of many mothers’, hence not incompatible with human dignity when imposed on a domestic worker. Monetary compensation was later awarded by the Paris industrial tribunal.5
In the end, the French judicial system imposed no criminal penalties on the perpetrators, and the civil penalties were limited to the provision of back pay due to the complainant. In 2005, Ms Siliadin appealed to the European Court of Human Rights (ECtHR), seeking no further compensation but aiming to gain recognition that the circumstances under which she had been held, and the failure of the French state to provide proper judicial remedies, constituted a violation of Article 4 of the European Convention on Human Rights. In its decision, the ECtHR rebuked the French state for having failed to appropriately punish exploitation of this kind, and thus for having failed to protect Ms Siliadin’s rights under the Convention. The ECtHR, however, declined to label as slavery the practices to which she had been subjected, preferring to use the term ‘servitude’. ‘Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B exercised a genuine right of legal ownership over her, thus reducing her to the status of an “object”’. The Court therefore held that it could not be considered that Ms Siliadin had been held in slavery ‘in the traditional sense of that concept’, but did judge that French criminal law had proven inadequate to the task of imposing an appropriate penalty on those guilty of holding her in ‘servitude’.6
For the purposes of determining the responsibility of the French state, the distinction between slavery and servitude was not an essential one, since both practices are prohibited by Article 4 of the Convention, without exception and without the possibility of derogation. The call for a change in the French criminal code stood, whichever term was used. As a definitional matter, however, the ECtHR’s statement about slavery perpetuated the puzzle: what would constitute slavery in an urban, domestic context of this kind?7
Several legal scholars have criticized the decisions in Siliadin as flawed in the Court’s interpretation of the relevant texts, and have observed that international law is now somewhat fractured on the definitional point concerning slavery. There is a notable divergence between the statements by the ECtHR in Siliadin— seemingly requiring the exercise of a ‘genuine right of legal ownership’ and reduction to the status of an ‘object’ for a finding of slavery—and those of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Kunarac, and even of the ECtHR itself in the 2010 decision in Rantsev v Cyprus and Russia—which both note that it is the ‘exercise of the powers attaching to the right of ownership’ rather than legal ownership itself that should be held to be determinative.8
What might a historian add to this debate? A close look at the actual process of status determination during the period of ‘slavery in the traditional sense of that concept’, as the ECtHR put it, suggests that the courts in Siliadin were also mistaken in a key dimension of their historical analysis. The ECtHR’s discussion of slavery implies that status as a slave rested on a ‘genuine right of legal ownership’. But was a ‘genuine right of legal ownership’ actually a precondition for holding someone in slavery, even in the nineteenth century? The courts may in fact be using the wrong metric if they measure contemporary practices against a stereotype, rather than against an actual set of features of slavery in the past.
One challenge for legal/historical scholarship on this subject is thus to explore and delimit the concept of enslavement so that it retains a core, historically grounded meaning, while still enabling us to grasp a dimension of contemporary reality. A first step is to examine the ways in which slave status was determined during the period when property in human beings was acknowledged in law.
A key to this inquiry is the examination of nineteenth-century cases where illegal enslavement was alleged, that is, in which a person with a cognizable legal claim to freedom was reduced to the legal status of a slave. The 1839–1841 drama of the Amistad captives is perhaps the best-known example. A group of African men, women, and children who had been transported illegally across the Atlantic rose up against their captors during a voyage along the coast of Cuba, seized the schooner Amistad, and eventually came ashore in the United States. Once the US Supreme Court acknowledged that the alleged owners of the captives had been engaged in contraband slave trading in violation of international treaties, the claims to ownership of the Africans as ‘slaves’ became unsustainable. This, then, was illegal enslavement in a world in which legal enslavement remained permissible. The captives were freed.9
On its own, however, the Amistad case may leave the strong and quite misleading impression that in nineteenth-century slave societies, if the circumstances of a person’s enslavement were illegal, the absence of a ‘genuine right of legal ownership’ would mean that the person could no longer be held as a slave. The evidence suggests that this was by no means the rule. It is now clear that in addition to the crime of contraband slave trading that ensnared the Amistad captives and many others, a large-scale enslavement of free persons ‘under color of law’ occurred in Cuba and in the United States in the early nineteenth century, and was marked by an outcome that contrasts sharply with the Supreme Court finding in the Amistad case. The dynamic of this process of enslavement reveals the disconnect between a ‘genuine right of legal ownership’ and the ‘exercise of the powers attaching to the right of ownership’. It suggests that we may best avoid anachronism not by eschewing the use of the term ‘slavery’ to describe the modern exercise of certain powers over human beings, but instead by examining the interplay of the legal and the extralegal in both historical and contemporary instances.10
It was the abolition of slavery in the French Caribbean colony of Saint-Domingue, now Haiti, that set the stage for the unfolding of this drama. In the course of the Haitian Revolution of 1791–1803 the holding of property in men and women was legally extinguished. Free citizens of the polity in which that abolition had taken place, however, might still find themselves at risk of enslavement if they left its borders. Their circumstances provide us with an early example of a situation in which the ‘powers attaching to the right of ownership’ might be re-asserted over those in whom ownership was no longer recognized by law.