Blog post by Nathanson fellow Didar Shwan
With the turn of the new century, there has been a gradual shift in the conceptual framing of slavery in international law. As the Rome Statute of the International Criminal Court entered into force just over two decades ago, world nations recognized sexual slavery as a distinct crime to remedy the erstwhile silences of international law with respect to violence perpetrated against women. More recently, the Office of the United Nations High Commissioner for Human Rights affirmed that the experiences and exploitation of some women in forced marriages can “meet the international legal definition of slavery.” There seems to be a political will that has permeated these institutions to reconsider their understanding of what it means for an individual to endure conditions of enslavement. This is indeed a timely endeavour as we are approaching a century of an unchanged and narrow legal definition of slavery—one which has been reproduced in international treaties since its inception by the League of Nations.
The foremost legal characterisation of slavery—what we may call slavery proper—is found in the 1926 Slavery Convention, a treaty aimed at the international prohibition of slavery which came to fruition through the work of an appointed expert commission of the League of Nations, the Temporary Slavery Commission. This group of experts investigated slavery practices in the Global South and subsequently produced two reports which were relied upon by the League’s predominately European member states in their formulation of a definitional characterisation of slavery. The archives of this period reveal that certain conditions of enslavement were considered a “lesser form” of slavery, where experts and states would attribute them to either cultural custom or practices that restrict the liberty of persons. Such conditions of enslavement were deemed to be outside the bounds of how the League of Nations intended to define slavery and, in practical terms, this meant that forms of subjugation primarily affecting women of the Global South were eclipsed by the law. These women continued to experience enslavement through commodification in forced marriage, domestic and agricultural labour, forced prostitution, and other practices—all of which remained outside the reach of formal abolition.
Today, mirroring this decade-old approach, severe forms of subjugation experienced by women commonly fall under the umbrella of ‘modern-day slavery,’ rather than being recognized as historically (and legally) reflective of slavery proper. Critical works contend with the challenges of delineating an appropriate scope of slavery in and for the present, not least because of the fragmented comprehension of ‘modern-day slavery’ across international law and its institutions. This fragmentation is rooted in international law’s initially narrow framing of slavery, which has led to various conditions of enslavement—otherwise closely interlinked—being recast into discrete legal categories (e.g., human trafficking, forced labour, etc.) and regulated through separate treaties. The incongruence following from its restrictive form has tangible impacts on individuals whose circumstances are not afforded the same legislative protections as slavery proper enjoys under the peremptory normsof international law, from which no derogation is permitted. The difference in legal status between these human rights infringements impacts political will and the policy measures employed to prevent, address, and adjudicate slavery crimes. In response to this piecemeal legal landscape, my research undertakes a genealogical inquiry into how slavery has been conceptualized in international law to identify the influencing factors that have informed the legal design of conditions of enslavement. In my work, I attempt to trace the ways in which the law has limited our understanding of what it means to be enslaved, moulded definitions now embedded into social and political life, and generated particular lines of discourse and meaning around subjugating practices. At the heart of the matter is my question as to why we perceive a child who has been forcibly married and subjected to pervasive personal and institutional violence, or a woman who has been trafficked and is bound in forced prostitution, as anything other than slavery proper