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The Unfinished Business of Slavery

Hull May 2007

Introduction Good morning and thank you for inviting me to this conference and for giving me the privilege of addressing such a distinguished audience. It is a special honour for me to be here at WISE. The institute has only...

Introduction

Good morning and thank you for inviting me to this conference and for giving me the privilege of addressing such a distinguished audience. It is a special honour for me to be here at WISE. The institute has only been in existence a short while but it already has a growing reputation. And, of course, it is extremely fitting that this conference 200 years after the passing of the legislation abolishing the slave trade in the British Empire is taking place in Hull, whose perhaps most famous son played such a pivotal role in this huge advance for mankind.

The topics under discussion for the next four days range from the tragedy of slavery to the hope of emancipation. As a human rights lawyer, I am honoured to be able to share with you some thoughts on human rights and slavery and how they intersect in law, in particular international law.

It is understandable to feel overwhelmed when faced with the horror of the subject at hand. But my intention today is not to leave you feeling disheartened, but rather empowered. Throughout my address and this conference, I would like us to remember the goal for which we persistently strive. It is the opposite of slavery. It is freedom.

Slavery then and now

Slavery and freedom are mutually exclusive. As long as slavery in whatever form exists amongst us, we can never be completely free. I would argue that freedom is the ability to choose to speak or act without restriction, interference or fear. Individual freedom is today a jealously guarded human right under UK law and in all other true democracies. The victims exploited during the Transatlantic Slave Trade lost their freedom when they were plucked from their homes and herded onto ships to be shipped in appalling conditions across the ocean. In an appeal to the House of Commons in 1789, William Wilberforce vividly described their passage to the West Indies. He said: “So much misery condensed in so little room is more than the human imagination had ever before conceived.”

It is because of these inconceivable cruelties and sheer scale of this inhuman enterprise that when we think of slavery it is often in light of the transatlantic trade. Much of this conference’s programme on this 200th anniversary understandably is focused on the Atlantic Slave Trade and on the continued effects of the Trade in the here and now. During the 200 years since then, states and international organisations have grappled to curb the exploitation of people, resulting in some eighty conventions and documents. It seems absurd that so many laws, covenants and declarations have been promulgated in order to abolish a practice that is so obviously abominable. Yet notwithstanding our efforts, and despite the fact that one would imagine horror and disgust to be universal responses to slavery of whatever kind and wherever practised, slavery continues.

Indeed, I am saddened to say that slavery is not simply continuing but thriving. From Britain to Brazil, Romania to Taiwan, the intense despair and fear felt by millions during the Atlantic Slave Trade is shared by millions today. No doubt Wilberforce would be shocked and appalled if he knew of the staggering statistics of slavery perpetrated today so many years after his death. It is our duty to respond to this calamity, and this conference is one way of doing so.

A reason for the continued practice of slavery is simple profit. As one Mr Norris, arguing for the abolition, said before the Privy Council at the turn of the 19th Century: “…interest can draw a film over the eyes, so thick that total blindness could do no more.” Certainly profit was the motivation behind the Atlantic Slave Trade and the slavery perpetrated before that. Slaves were the expendable building blocks of the economies of slave-trading nations; theirs were the backs upon which prosperous nations were built. For example, by the time the slave trade was at its height in the 1780s, slaving formed an integral part of the economies of European nations and, in particular, Great Britain. According to Hugh Thomas: “William Pitt, the British Prime Minister from 1783, thought that the West India trade, which depended so heavily on slaves, was responsible for four-fifths of the income reaching Britain from across the seas.” Thomas points out that most of the great enterprises of the first 400 years of colonization across the Americas owed much to African slaves: sugar in Brazil and later the Caribbean; rice and indigo in South Carolina and Virginia; gold in Brazil and, to a lesser extent, silver in Mexico; cotton in the Guianas and later in North America; cocoa in what is now Venezuela; and, above all, in clearing of land ready for agriculture.” .

Today, it is human gain which again drives the curtailing of freedom of other people. So, while it may seem comfortable to relegate to history images of slave ships crossing raging seas, the truth is slavery remains all around us. The ever-diminishing size of our world has facilitated the trade, even when, after two centuries of effort, there is worldwide agreement that slavery everywhere and in whatever form is intolerable.

What visions then, do we conjure up when we imagine modern day slavery? Perhaps forced prostitution in a dark alley in Ghana springs to mind, or children being compelled to weave carpets in India, or women slaving away in forced labour sweatshops in the East. It is when we think of the 19 Chinese cockle-pickers working as forced labourers and drowning in Morecambe Bay in 2004, that the close proximity of these despicable activities is brought home to us.

Human trafficking is one manifestation of modern slavery. In fact it is the third-largest transnational criminal industry in the world, after arms and drugs. No country escapes, no matter how seriously they take this crime. Hundreds , perhaps, thousands of women and children are tricked into or brought forcibly into Britain for the sex trade or as domestic labour. It is clear, too, that children from African countries in particular are trafficked through the UK to other countries. Even sporting events are magnets for this type of underground criminality. A media report released prior to the Soccer World Cup in Germany last year stated that more than 40,000 women and children were to be imported to the country during the month-long competition in order to provide commercial sex. And back home the UK Home Office is concerned that the 2012 Olympics will spark increased human trafficking for both sexual and labour exploitation. I particularly welcome the fact that in March this year the UK signed the Council of Europe Convention on Action against Trafficking in Human Beings and announced the creation of the UK Human Trafficking Centre. This is directly linked to the introduction of the UK Action Plan on Human Trafficking to ensure the Police and partner agencies work closely together to crack down on human trafficking in all its forms.

As dominant as trafficking is as a form of slavery, it is but one example and this conference focuses on many others as well I cannot touch on all of them; that will be done by the experts gathered here over the next few days. But I would mention two types of slavery that are of concern to me, one involving women in particular, and the other involving children.
Areas riven by armed conflict testify to a particularly ugly form of slavery prevalent in conflict or post-conflict societies. The slavery I have in mind is related to the appalling numbers of sex-crimes perpetrated against women civilians. For instance, Amnesty International records that at least 40,000 female civilians, girls and women, have been raped over the last six years in the DRC alone. A recent Human Rights Watch report on the legacy of mass rape in the Congo chronicles the level of violence against women in that country, the role that rape and other forms of sexual horror play in the perpetration of that violence, and the almost absolute levels of impunity that follow such crimes. The report makes for soul-wrenching reading. It is made all the more difficult to digest when one remembers that the plight of women and girls in the DRC is redolent of sexual violence that has been or is being perpetrated in nearby countries - Rwanda and the Sudan for example - and further across the globe - such as Yugoslavia, Iraq and the former East Timor.

The sex crimes are appalling in and of themselves. But what makes it all the more galling is that the sexual violence is often the product of, or bound up with, conditions of slavery. Yugoslavia in the early 1990s brings vividly to mind the news reports of rape camps, where women would be denied their freedom and repeatedly raped as a form of sexual slavery. One particular atrocity involved a systematic Serb policy of the repeated rape of Bosnian Muslim Women until pregnant and then forcibly detaining these women until they delivered children in order to “cleanse” the ethnic composition of the children. The horrors of sexual slavery are also emerging before the Truth Commission which was established in East Timor. Women have told of their experiences during the 1980s, as the Indonesian military established its apparatus at the village level. The story of Olga da Silva Amaral is typical. She described how women were detained at the Dare Military Command Post and repeatedly raped by Indonesian soldiers. The military put up a building they called a school to hold those women whose husbands had been exiled. The women were ordered to live with the soldiers. Olga told of how she was kept in a toilet for three months, where the torture and sexual abuse continued. She says that ‘There was never a day without rape’.

The Sudanese crisis is a latter-day tragedy involving similarly repulsive accounts of violence against women under conditions of slavery. The UN Commission report compiled by Professor Antonio Cassese’s team documents a series of crimes against humanity, including women and girls being kept naked in rape camps.

The second type of slavery I would like to bring to mind is the appalling problem of child soldiers. We have all seen those terrible pictures from Africa’s wars: the boy soldier in battle fatigue, barely larger than his weapon, eyes dulled by the opiate of war. In northern Uganda, an estimated 14,000 children have been abducted and turned into soldier-slaves by the rebel Lord’s Resistance Army (LRA). More than 90 per cent of the LRA’s troops are children - terrorised through violence, sexual abuse and threats, then forced to kill. Many die at the hands of the LRA or in skirmishes with Government forces. Those who escape are severely traumatised. They can face rejection by their communities and may be charged with treason by the Government. These slave-soldiers are not restricted to Uganda. The United Nations estimates nearly 300,000 children between 10 and 17 have been forced into toting guns at the behest of rebel groups or governments in 30 different countries.

These numbers, shameful as they are, are dwarfed by the numbers of those children forced to work. According to estimates from the ILO and UNICEF on child labour, there are over 218 million children trapped in child labour worldwide, of whom some 171 million were engaged in ‘hazardous work’ including in factories, mines and agriculture. 218 million children is about three and a half times the population of Britain. It beggars belief in the 21st century.

The challenge of responding

This brings me to our duty to respond. The scenarios I have depicted so far - be it images of shackled and bleeding Africans en route to the New World, or innocent women and children subjected to slavery today - appall us, sadden us, infuriate us. But, above all, they should spark us into action.

As a lawyer, I have, of course, a particular interest in how the law has responded to slavery and the role it has played in tackling this inhumanity. As we know, following on the abolition of the Slave Trade here two hundred years ago, the Slavery Abolition Act of 1833 gave all slaves in the British Empire their freedom. In the international arena, freedom from slavery was the very first human right to take shape in international law, grounded in the freedom, dignity and worth of the human person. While at one point in time the slave trade was regarded (at least by slaving nations) as an acceptable and lucrative business, now the prohibition of slavery in the sense of “ownership of one person over another” is what international lawyers call a jus cogens norm - something which permits of no derogation, no exceptions or justification in international law.

From the Slavery Convention of the League of Nations, which entered into force in 1927, through Article 4 of both the Universal Declaration of Human Rights and the European Convention of Human Rights, every international human rights document contains a prohibition upon slavery. They outlaw institutions and practices similar to slavery including forced labour, debt bondage, child marriage, serfdom and various types of exploitation of women and children. In addition, various special rapporteurs and resolutions have affirmed slavery’s criminality and suggested legal ways of suppressing it.

So, the law has responded to the horror of slavery. This response is heartening, and it allows us to use legal means to fight slavery and slave-traders as hostes humanis generis as we lawyers might put it - or as enemies of all human kind as everyone else would do.

In a moment I will share with you some examples of the law being used against those who perpetrate slavery today. But before I do so, allow me to reflect for a moment on the difficulty of the law responding to those who perpetrated slavery centuries ago. The difficulty I allude to is raised squarely in some of the papers presented at this conference around the question of reparations for slavery committed, for instance, during the Atlantic Slave Trade. This is a thorny issue, and one that the law and lawyers are only just beginning to grapple with. The issue is whether there should be a time limit which prohibits reparations being claimed for violations, however gross, which took place in the distant past. In respect of the duty to make reparation - a duty which is firmly part of international law - does it matter, for example, that those affected by the violations of human rights which occurred during the North Atlantic Slave Trade are long dead? Are some past human rights abuses (such as the Slave Trade) so egregious that their very fact continues to haunt the present? If so, does it make sense to limit the demand for reparation by descendants of those that suffered? Should the law attempt to do so?

This is an important topic and the answers to the questions I have posed are not altogether clear. One significant practical obstacle to such reparations claims is that they are liable to be dismissed in terms of relevant statutes of limitations. The statute of limitation problem is a manifestation of a larger problem presented by reparations claims. That problem is this: how can or should the law of today respond to events that happened years, sometimes centuries ago, under laws or moral codes that sanctioned such conduct?

The problem may be well illustrated by considering claims for reparations arising from the practice of slavery. During recent times, international lawyers have begun to struggle with the question of whether or not certain states ought to be held accountable at international law for crimes committed as part of the Atlantic Slave Trade. There is no doubt of the crime or the appalling scale of it or that it was officially sanctioned by the various “great powers” which engaged in and benefited from it.

Therein lies the legal problem. Slavery was not a crime in terms of international law at the time these crimes were perpetrated by the “great powers”. As late as 1825 therefore, the US Chief Justice was able to show in the Antelope Case that slave-trading was lawful, notwithstanding international condemnation of its immorality, since it was then ‘sanctioned by the laws of all nations who possess distant colonies’. The logic of this argument is that it is not possible to hold the “great powers” liable for actions which, however repugnant we find them today, were not considered to be crimes when they were committed. Under international law this is known as the doctrine of inter-temporal law which maintains that it is not permissible to hold states liable for actions which, although they might be contrary to the norms of international law if committed today, were not considered to be contrary to international law as it existed at the time the actions were committed.

While the doctrine has its obvious strengths as a stabilising influence on international relations, not everyone believes past crimes can - or should be - so easily left to the past. As Mayo Moran, a leading Canadian scholar and Dean of the Toronto Law School, so eloquently puts it, “The heart of the problem concerns the troubling complicity of law as a tool of massive discrimination and injustice. How ought law now respond to law then? Moran argues that “it seems both possible and important to craft a better legal response, even if all of its contours are not entirely clear.” There is no doubt that this is a controversial area and there are no simple answers. But that should not put us off striving to find solutions as I know you will be attempting to do at this conference. Fascinating though this legal debate is (at least to lawyers) to my mind the approach of Kofi Annan is more practical. I was privileged to attend his speech to a joint session of both chambers of the UK Parliament last week, and he suggested that a “bold investment” in poverty relief in Africa as promised by the G8 under the chairmanship of the Prime Minister in Gleneagles is the better way for the countries whose economic development was fuelled by slavery to “heal the wounds” it caused in Africa. He’s right that slavery was both an individual and a collective evil. And one way to get over the impossibility of direct reparation to the individuals who suffered from those individuals who caused their suffering, it is still possible for those societies who benefited collectively to make a collective reparation through development.

But if the law’s response to the slavery of centuries past remains controversial, what is less cloudy is the legal response to slavery committed today. As I have said, those that commit slavery are considered under modern international law to be enemies of all humankind. The persons responsible for slavery are violating a super-norm of international law. Their actions attract what international lawyers call universal jurisdiction; that is the individuals put themselves - like the torturer - beyond the protection of their own state; they make themselves liable to arrest and prosecution by any state of the world.

This certainly brings them within the jurisdiction of the new International Criminal Court set up in 2002 to consider genocide, war crimes and crimes against humanity. The Statute that created the Court - the ICC Statute - puts in place individual criminal liability for those responsible for the most serious human rights violations, and creates a permanent institution to ensure the punishment of such criminals.

Slavery lies firmly within the realm of “most serious human rights violations”. So we see that the ICC Statute gives the Court jurisdiction over “enslavement” as a crime against humanity. Under its terms, the ICC Statute recognises that enslavement means the deprivation of liberty and may include exacting forced labour or otherwise reducing a person to a servile status, and that includes trafficking in persons, in particular women and children.

The Court also responds to the type of sexual slavery that I mentioned earlier in my talk. At the international level it was only in relatively recent times that sexual violence against women during armed conflict came to be regarded as an important issue in serious need of redress. Since 1990 international criminal law has made greater progress on women’s issues than during any other time in recorded history. The ICC Statute both exemplifies the progress thus far and hints at the future contribution that the Court can make to the attainment of justice for women. For one thing, the ICC Statute goes beyond rape and allows for prosecution of a wide range of sex-based crimes. The Statute prohibits sexual violence as a war crime in Article 8, and in Article 7(2)(g) specifically proscribes the crime against humanity constituted by “rape; sexual slavery; enforced prostitution; forced pregnancy; enforced sterilization; or any other form of sexual violence of comparable gravity”.

The ICC statute thus directs the Court’s attention to sexual slavery - a disturbingly prevalent crime in the DRC, Uganda and Sudan - and which may overlap with the crime against humanity of enslavement and human trafficking. This was certainly the view of the Yugoslav tribunal which held in the case of Kunarac that enslavement as a crime against humanity in customary international law consists of the intentional exercise of any or all of the powers attaching to the right of ownership over a person.

In addition to sexual slavery, the ICC Statute also directs the Court’s attention to the problem of children that are enslaved to act as soldiers. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. For the purpose of the Statute, a “war crime” includes conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. The ICC Statute thus sets out two offences relating to child soldiers. Aside from prohibiting the “conscription” or “enlistment” of children, the statute also outlaws “using children to participate” in hostilities.

These are important and welcome developments. The International Criminal Court is representative of a new trend - of using international criminal law to attain justice for victims of slavery and other atrocities. Until recently, for example, there has never been a prosecution of an accused responsible for recruiting child soldiers. That changed in 2004 when the Special Court for Sierra Leone handed down the first ever judgement regarding recruitment of child soldiers. It’s no surprise that it was the Sierra Leone Tribunal as the dreadful conflict there was marked by the abduction and enslavement of children as soldiers. It is estimated that around 10,000 children under the age of 15 have served in the armies of the main warring factions. Many were killed or wounded and others have been forced or induced to kill and maim with their victims including members of their own community and even their own families.

The effect of this horror is understandably traumatic. Children continue to suffer reprisals from communities they were ordered to attack, and they exhibit, not surprisingly, behavioural problems and psychological difficulties related to the crimes they have been involved in under the direction of adults in positions of command responsibility.

The Sierra Leone Tribunal judgement against Sam Hinga Norman who was arrested and charged for recruiting child soldiers cannot be underestimated. Aside from confirming more generally the international community’s concern for the crime of recruiting children into the heart of darkness, the court’s judgment indicates that the crime of recruiting child soldiers is now part of customary international law. The Hinga judgement of the Sierra Leone Court symbolises the beginning of a trend which shows we are taking seriously the issue of crimes concerning children, and will prosecute those responsible for such violations, both to exact retribution from the offender, as well as to send a message of deterrence to others.

This trend now involves the new International Criminal Court itself. I am thrilled that the Court’s first cases involve investigations and possible prosecutions of Ugandan rebel leaders of the Lords’ Resistance Army for a number of crimes, including the kidnapping of thousands of children as soldier slaves or sex slaves, and the targeting of recent sex crimes - including sexual slavery - committed in the territory of the DRC and Sudan. One of the people charged is Thomas Lubanga Dyilo, a former leader of a militia group in the Democratic Republic of the Congo (DRC) with enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. Lubanga’s case will be the first trial before the ICC and the first time that an individual has been brought before an international court solely on the basis of crimes against children. Announcing the charges Chief Prosecutor Luis Moreno-Ocampo said:
“Regardless of the outcome of the proceedings, this case represents a huge step in the struggle against these serious crimes against children. Child conscription destroys the lives and futures of thousands of children around the world. This case will contribute to exposing the problem and in stopping these criminal practices.”

The ICC Statute’s attempt to secure the human right to freedom is the most recent and most optimistic feature of the still young system of international criminal accountability. It is one response to slavery and other appalling crimes committed in our world today. May it serve as an example to us all.

Conclusion

So despite the scale of the challenge we face, there is progress. If we are to step up the fight against this inhuman practice which still scars our world, we must follow the example of William Wilberforce. Commenting on Wilberforce’s perseverance, historian Hugh Thomas noted that “Persistence is the most important quality in politics. It was possessed in heroic quantity by Wilberforce.” That this conference is being held is less about our commemoration of the bicentenary of the prohibition of slavery (although that is important). It is rather a statement of intent. A statement of our resolve to persist in fighting this human rights crisis, on our home ground and in the international arena; to continue where Wilberforce left off. Looking at the rich and varied conference programme, it is clear that you will grapple not only with many theoretical difficulties and political complexities, but also with personal images and stories testifying to the horror of slavery. Don McCullin, the well-known photographer, recounted his experience in 1969 of standing in a mission school-turned-hospital for 800 orphans during the Biafran War. He writes an account of a starving albino child, and I think the point that he makes holds true for any encounter with humanity’s inhumanity. McCullin reflects on his experience in the following words. He says:

“It was beyond war, it was beyond journalism. It was beyond photography, but not beyond politics. This unspeakable suffering was not the result of one of Africa’s natural disasters. Here was not nature’s pruning fork at work but the outcome of men’s evil desires.”

Slavery, ladies and gentlemen, is not nature’s pruning fork at work. It is the product - as it always has been - of evil desire. Perhaps that is the real difficulty: the staggering, nauseating realisation that evil always seems to persist, never appears to tire. Certainly the abolitionists that worked with Wilberforce had to contend with this reality. As James Stephen, the brother-in-law of William Wilberforce, wrote in 1804, after what appeared to be initial successes by the abolitionists in curbing the trade:

“I see my country still given up without remorse to the unbridled career of slave-trading speculators… The monster, instead of being cut off, as the first burst of honest indignation promised, has been more fondly nourished than before; and fattened with fuller meals of misery and murder…”

Is it then impossible to imagine that slavery - and the evil desires underlying it - will be overcome? This is a question worth pondering. Writing in 1940, at a time of great human misery in Europe, Albert Camus said that our task is “to find those few first principles that will calm the infinite anguish of free souls. We must stitch up what has been torn apart, render justice imaginable in the world which is so obviously unjust, make happiness meaningful for nations poisoned by the misery of this century. Naturally, it is a superhuman task. But tasks are called superhuman when men take a long time to complete them, that is all.”

I take solace in Camus’ statement. There will be occasions over the next few days when you will witness the individual torment that underlies the statistics of modern-day slavery. When you do, you will respond as we all do when faced with the knowledge of human misery. According to the respected LSE academic Stanley Cohen, we respond in one of two ways. Either with despair, which is to take on some of the victim’s suffering but with no purpose; that is, to despair at the problem of slavery and to be overcome by its immensity. Or we respond with indignation, which is a response which demands action in the belief that something can be done. I would suggest that we respond with indignation. And then persevere in order to ensure real freedom for all people. As Kofi Annan said last week

"The slave trade as practised 200 years ago may be history. But moral blindness is ever present. Let us not close our eyes to crimes that shame us all. The slave trade was eventually abolished because many thousands of people examined their own consciences and took personal responsibility for what was happening around them. We must approach today's abuses in the same spirit -- each of us seeking, not to blame somebody else, but to think what we can do to hasten their end.”

"There is no evil so entrenched that it cannot be eradicated. Inspired by the abolitionists of two centuries ago, let us fight against exploitation and oppression and stand up for freedom and human dignity.”

A week after Kofi Annan spoke whose inspiring words I know this conference will embrace his challenge and the UK and the city of Hull will once again lead the world in the fight for fair development and the end to slavery in all its forms.

I thank you.