Slavery and Its Definition

Jean Allain is Professor of Public International Law at Queen’s University, Belfast, and Extraordinary Professor at the Human Rights Centre of the University of Pretoria. Kevin Bales is Professor of Contemporary Slavery at the University of Hull’s Wilberforce Institute for the Study of Slavery and Emancipation, and co-founder of the international non-governmental organisation, Free the Slaves.

Had the abolitionists of the past, the likes of Abraham Lincoln or William Wilberforce, been able to see into the twenty-first century, what might have struck them as very strange was that while we had come far in ending slavery and suppressing human exploitation, we seemed to have lost sight of what the term “slavery” means. This, despite the fact that for more than eighty-five years there has been a consensus in international law as to the legal definition of slavery. Likewise, despite this international legal consensus and the fact that most states have constitutional or legislative provisions prohibiting slavery in their domestic legal order, very little has been done to prosecute individuals for enslaving another person—until recently.

A Neo-Abolitionist Era

We say “until recently”, as it can be said that we are currently living through a “neo-abolitionist era”, one that goes beyond its historical predecessor, which focused on ending legal slavery, to a contemporary movement meant to end slavery in fact. Distinctive parallels exist between the abolition of old and the current, neo-abolitionist, movement. Just as Quaker social activism and Anglican evangelicalism laid the foundation for the British abolitionist campaign, which ultimately led to the abolition of legal slavery, so, too, should we acknowledge the parallel roles of human rights activism (still including Quakers) on the one hand and the “Religious Right” in the United States on the other and their joint influence on Congress in passing the 2000 Victims of Trafficking and Violence Protection Act.¹ Similarly, just as its dominance of the seas during the nineteenth century allowed Britain to end the slave trade, so, too, has the current dominance of the United States allowed it, through legislation dealing with trafficking, to force other countries to get serious about prosecuting cases of slavery.²

The dominant position which the United States holds in both soft and hard power has allowed it, through informal empire, to require states to pass legislation that criminalises the movement of persons through coercion, fraud, or deceit, with the intent of exploiting them. The most recent manifestation of the 2000 Victims of Trafficking Act, the William Wilberforce Trafficking Victims Protection Re-authorization Act of 2008, makes it

the policy of the United States not to provide non-humanitarian, non-trade 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.

These minimum standards relate to legislating criminal liability for those involved in trafficking in persons and require that the state “should make serious and sustained efforts to eliminate severe forms of trafficking in persons”.³ Thus, in the case of trafficking, the United States is requiring other countries to go beyond legislation to actual suppression.

Before continuing, it should be made plain that trafficking is not in itself slavery, but a process by which slavery can be achieved. However, the moves of the United States to suppress trafficking have a knock-on effect regarding slavery. This is so because the trafficking legislation which has emanated from the US Congress is modelled upon, and an offshoot of, the United Nations’ 2000 Palermo Protocol—the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. The Palermo Protocol, for its part, sets out a definition of trafficking that establishes a crime related to a chain of movement of a person into situations of “exploitation” as a result of violence or other means. The Palermo Protocol gives examples of the types of exploitation that are meant to be addressed. These include forced labour, servitude, and, most importantly for our consideration, slavery.⁴ As a result, if countries are meant to suppress trafficking where it involves slavery, it is rather difficult to turn a blind eye to cases of slavery on their territory that do not involve trafficking, in the sense of this chain of movement.

The other influence that the United States has had on the emergence of the neo-abolitionist era is rather more equivocal as it relates to the crime against humanity of enslavement within the jurisdiction of the International Criminal Court. While the United States remains opposed to becoming party to the court, it has also utilised it instrumentally, allowing the UN Security Council to act against the leaderships of both Sudan and Libya. Where the international crime of enslavement is concerned, what places us on firmer ground with regard to US influence is Washington’s leading role in creating the ad hoc criminal tribunals for the former Yugoslavia and Rwanda, which acted as precursors, and thus cleared the way for the establishment, of the International Criminal Court.⁵ For many of the 120 states that have signed up to the International Criminal Court, doing so has meant the introduction of domestic legislation to ensure that the court can function in a complementary fashion within the domestic legal order. Part of that legislation inevitably addressed the crimes under the jurisdiction of the International Criminal Court, and a number of states, including Burundi, Malta, Niger and Romania, have incorporated “enslavement” into their domestic legislation.

A Contested Term

These are the dynamics at play that have brought slavery back into legal focus in the context of the early twenty-first century. Yet, today, the very term “slavery” and its contours are contested, even though an international definition of slavery was established in 1926, was confirmed in 1956, and was replicated in substance as the definition of enslavement included in the 1998 Statute of the International Criminal Court. However, it may also be said that the legal contours of slavery remain contested not necessarily despite the 1926 definition of slavery, but because of it. This is because the