OFFENCES AGAINST THE PERSON
5.2 SLAVERY AND RELATED PRACTICES
5.2.1 The slave trade and similar institutions
Article 1(2) of the 1927 Slavery Convention defines the slave trade as including:
…all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.
It is also well settled that conveying, attempting, or being an accessory to the conveyance of slaves from one country to another constitutes a serious offence under international law.13Although the definition of slave trade contained in Art 1(2) of the 1927 Slavery Convention seems to encompass a wide range of acts, it, in fact, excluded a number of similar practices that affected and still affect a substantial part of the population of developing countries. Extreme poverty compounded by the lack of social and administrative structures soon revealed a different facet of slavery;
one where the individual was forced to submit to exploitation or risk extinction.
The 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions Similar to Slavery (Supplementary Slavery Convention) was designed purposely to fill that lacuna. Article 1 prohibits the institutions of debt bondage, serfdom, ‘bride-price’ and the illegal transfer of children. Debt bondage arises from a pledge by a debtor of his personal services or of persons under his or her control as security for a debt. This transaction becomes unlawful under Art 1(a) of the 1956 Supplementary Slavery Convention, where either the value of those services as reasonably assessed are not applied towards the liquidation of the debt, or the length and nature of those services are not respectively limited and defined.
The Ad Hoc Committee established by the Economic and Social Council (ECOSOC) of the United Nations (UN) in 1949 to formulate this Convention was of the view that debt bondage was also constituted where the bondsman and the debtor submit to conditions not allowing the exercise of rights enjoyed by ordinary individuals within the framework of local social custom,14as would necessarily be the case of an undefined in nature and unlimited in time contract of servitude. Debt bondage is endemic in the majority of developing nations, and a 1995 study estimates the existence, in India alone, of in excess of 15 million child labourers, incurred by a debt of a parent.15These debts cannot be easily paid off as a result of astronomical interest rates and low wages, and so children may work throughout their youth without having managed to repay the loan’, which could subsequently be inherited by another family member, typically a younger child. Despite the passing of the
12 Eg, the UK has refused to ratify the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 96 UNTS 271, although it has passed legislation conforming to most provisions contained in the Convention. The reason for the UK’s refusal is that the Convention penalises more acts than are penalised under UK law. Seeop cit,note 1, para 37.
13 1956 Supplementary Slavery Convention, Art 3(1), 266 UNTS 3.
14 JAC Gutteridge, ‘The Supplementary Slavery Convention 1956’, 6ICLQ(1957), 449, p 452.
15 L Tucker, ‘Child Slaves in Modern India: The Bonded Labour Problem’, 19HRQ(1997), 572, p 573.
1976 Bonded Labour System (Abolition) Act (No 19), which obliges the governments of the various Indian States to release the bonded labourers and rehabilitate them, further occasioned by similar judgments of the Indian Supreme Court,16debt bondage continues with impunity. The penalisation of debt bondage against children below the age of 18 is also prescribed by the 1999 ILO Convention for the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No 182).17 The prohibition of bride-price in Art 1(c) of the 1956 Supplementary Slavery Convention penalises the acquisition of girls by purchase disguised as payment of dowry for marriage. This institution becomes a criminal offence where the female is either denied the right to consent and is given to marriage on the basis of a financial transaction of any kind by familial or any other persons, or where upon death of her husband, family or clan members transfer her to another person, thus, basically reducing her to an object of inheritance. Bride-price and, indeed, all the institutions and practices penalised in the 1956 Convention were so deeply rooted in traditional rural societies in the developing world that the western delegates agreed, despite the vehement opposition of many non-governmental organisations (NGOs), to allow for progressive abolition of these practices, rather than impose an immediate prohibition.
States are generally free to prescribe a minimum age of marriage and, although the 1962 Convention on Consent to Marriage, MinimumAge for Marriage and Registration of Marriages18is not widely ratified, the principle of full and free consent of both parties declared in Art 1 therein is undoubtedly a rule of customary international law on account of its presence in the widely ratified 1956 Supplementary Slavery Convention.
The practice of bride-price should be distinguished from that of ‘bride-wealth’. The latter constitutes a substantial and obligatory payment from the groom’s kin to the bride’s family, not to the bride. Bride-wealth represented both marital cement and an assurance for both partners against the bad behaviour of the other and was to be returned if the marriage ended on account of the wife’s ‘fault’. Although the material elements of bride-wealth did not traditionally fit within supply/demand market notions, during the 20th century this institution has been distorted as its ingredients have acquired national currency values.As the material ‘gifts’ associated with bride-wealth acquired modern money value, the prospect always loomed that bride-wealth would, indeed, become transformed into bride-price. For this reason, many African countries have now regulated the cash value of bride-wealth. As the 1956 Supplementary Slavery Convention only intended to penalise and prevent the downgrading of marriage to a financial transaction lacking the consent of the bride, traditional bride-wealth does not violate the Convention.
The transfer of children under the age of 18 by their natural parents or guardian to another person, whether for financial benefit or not, with a view to exploiting the child or its labour is an international offence under Art 1(d) of the 1956 Convention.
A number of international instruments under the same terms expressly prohibit the trafficking, more specifically the sale or exploitation of children in any form, such as the 1989 Convention on the Rights of the Child,19the 2000 Optional Protocol II thereto
16 Chaudhary v State ofMadhya Pradesh(1948) 3 SCC 243, p 255; seeibid,Tucker, p 622.
17 1999 ILO Convention, Arts 3(a) and 7, 38 ILM (1999), 1207.
18 521 UNTS 231; see also GA Res 2018(XX) (1 November 1965) endorsing this principle.
on the Sale of Children, Child Prostitution and Child Pornography,20and the 1999 ILO Worst Forms of Child Labour Convention.21These instruments do not intend to punish those adoptions which the parents earnestly believe are in the best interest of their children and which are moreover completed lawfully and without any personal benefit to the parents, in accordance with Arts 1 and 21 of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoptions22and the 1989 Convention on the Rights of the Child, respectively. Interpol research suggests that illicit foreign adoptions are carried out through the falsification of birth certificates, followed by abductions or deceit of uneducated mothers by organised criminal rings.23
It is equally undisputed that the acts of procuring or offering of children in sexual activities for remuneration or any other form of consideration (child prostitution), or for representation of children engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for sexual purposes (child pornography) constitute international offences.24This would include procurers and clients engaged in sex tourism, as well as distributors and possessors of pornography through postal services or the Internet.25It should be stressed that the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography identified four causes related to the sexual exploitation of children; namely, ineffective justice systems, the role of the media, lack of education, but foremost she emphasised that, besides cases of kidnapping, it was the family of the children that was responsible for their eventual exploitation in the hands of others.26
Serfdom is also prohibited and is an international offence under Art 1(b) of the 1956 Supplementary Slavery Convention. This refers to the condition of a tenant who is bound to live and labour on land belonging to another person and provide determinate service to the landowner, whether for reward or not, and who is not free to change that condition. In Van Droogenbroeck v Belgium, the European Commission of Human Rights observed,obiter dictum,that the notion of servitude embraces, in addition to the obligation to perform certain acts for others, ‘the obligation for the serf to live on another person’s property and the impossibility of altering his condition’.27Contemporary serfdom resembles the existence of the feudal system in medieval Europe, where, in the absence of an industrial middle class and the accumulation of land by the few rendering it, thus, the basis of economic life,
19 1989 Convention on the Rights of the Child, Arts 35 and 36, 28 ILM (1989), 1448.
20 Contained in GA Res 54/263 (25 May 2000), Art 2(a).
21 ILO Worst Forms of Child Labour Convention, Art 3(a).
22 32 ILM (1993), 1134.
23 Y BirdThe Trafficking of Children for Sexual Exploitation and Foreign Adoption: Background and Current Measures,1999, Paris: Interpol; see also ‘Adoptions of Smuggled Mexican Babies (1999)Associated Press,25 July.
24 2000 Optional Protocol II to the Convention on the Rights of the Child, Arts 2(b), (c) and 3; 1999 ILO Worst Forms of Child Labour Convention, Art 3(a), (b); 1989 Convention on the Rights Of the Child, Art 34; ECOSOC Res 1996/26 (24 July 1996), entitled ‘Measures to Prevent Illicit International Trafficking in Children and to Establish Penalties Appropriate to Such Offences’.
25 See LM Jones, ‘Regulating Child Pornoghraphy on the Internet: The Implications of Article 34 of the United Nations Convention on the rights of the Child’, 6Int’l J Children‘s Rights(1998), 55.
26 UN Doc E/CN4/2000/73 (14 January 2000).
27 Application No 7906/77, Decision (5 July 1979) (1982) 4 EHRR 443.
two social classes were established: the dominant class(domini, nobiles)and the vassals. The vassals gradually became animate objects tied to the land(servi terrae).
The same medieval elements are present in cases of contemporary serfdom taking place in developing countries, whose eradication can only be premised on courageous land reform and industrial development. Since, in most cases, the vassal will have consented to his or her status, the institution of serfdom is illegal no matter how it has come about.
Traffic in persons, especially for purposes of sexual exploitation, is a specific form of slavery related institution. One treaty has, in the past, penalised ‘trafficking’ in persons without defining the term. Article 1 of the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949 Convention), which supersedes several previous instruments relating to the traffic of women and children (‘white slavery’), penalises any person who, in order to gratify the passions of another:
(1) procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person;
(2) exploits the prostitution of another person, even with the consent of that person.
This provision aims at eradicating both the initial enticement into prostitution, which usually commences as a result of socio-financial hardships, as well as the eventual procuring of prostitution in urban or other centres. The relevant discussions in the various human rights bodies of the UN have revealed two schools of thought on this issue; one maintains that controlled and lawfully registered prostitution should be allowed and that only the initial trafficking should be punished, while the other argues for a total ban and penalisation of prostitution. This division among States, further reinforced with the penalisation of the financing or maintenance of brothels or places facilitating prostitution in Art 2 of the 1949 Convention, is manifested by the limited ratifications this instrument has received.28This number should not lead one to believe that prostitution in all its manifestations is lawful, except where it is prohibited by States parties to the 1949 Convention. Rather, although exploitation of the prostitution of others not culminating to a condition of ownership over a person and performed with the prostitute’s consent does not draw consensus to warrant its characterisation as an international offence, the procurement or enticement of a person for the purposes of prostitution does constitute an international or transnational offence.29This conclusion is derived, first, from the fact that the latter facet of prostitution is a criminal offence, if not in all States, then at least in the vast majority, and, secondly, by the declarations of non-parties to the 1949 Convention to the effect that ratification of this
28 Seventy-four parties, as of February 2003.
29 See also 1979 Convwition on the Elimination of All Forms of Discrimination Against Women, Art 6 19 ILM (1980), 33 which requires States to suppress all forms of traffic in women and exploitation of the prostitution of others; ECOSOC Res 1999/40 (26 April 1999) urged States to criminalise traffic in women and girls, whether the offence was committed in their own or hird countries; para 24 of the Organisation for Security and Co-operation in Europe Charter for European Security prescribes an undertaking by this organisation to eliminate all forms of trafficking and sexual exploitation of human beings, 39 ILM (2000) 255: strategic objective D3 of the Beijing Platform for Action of the Fourth World Conference on Women (Report of 15 September 1995), UN Sales No E96.IV.13, aiming to eliminate trafficking in women.
instrument is problematic only because their national laws permit organised, State controlled prostitution.30
The ineffectiveness of the 1949 Convention necessitated the adoption of a specific instrument in November 2000, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.31The Protocol applies with regard to cases of trafficking involving duress and a transnational aspect (movement of people across borders or exploitation within a country by a transnational organised crime group) and is intended to prevent and combat trafficking, facilitate international co-operation, as well as provide certain measures of protection and assistance to victims. Article 3(a) defines ‘trafficking in persons’ as:
The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
The term ‘exploitation’ is further elaborated as exploitation of prostitution and other forms of sexual exploitation, forced labour, slavery and related practices, as well as the removal of organs. There is great expectation that the Protocol, as well as the 2000 UN Convention Against Transnational Organized Crime, will be effective in its preventive and punitive aspects and succeed where its predecessors failed.
There does exist one final form of slavery related practice, which is an offence only when committed by State entities: forced or compulsory labour. Article 2(1) of the 1930 ILO Forced Labour Convention (No 29) (1930 ILO Convention) defines forced labour as:
All work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily
This definition of forced labour excludes military service, civic duties, work arising from lawful conviction properly supervised, labour as a result of natural calamities or other emergencies and other cases of minor communal services.32All forms of forced labour constitute penal offences under the 1930 ILO Convention,33and wide ratification of this instrument has rendered the offence a rule of customary international law. In June 1999, the ILO decided to boycott commercial or other activities in Myanmar (Burma) for its ‘grave and persistent’ violation of the 1930 ILO Convention,34while in 1998 this country was barred from the Organisation.35It is estimated that more than 800,000 civilians, particularly from ethnic minorities, have been forcibly recruited by the Myanmar Government to work on public projects,
30 Possible ratification of the 1949 Convention by retentionist States with the inclusion of relevant reservations would run counter to the purpose and object of the treaty and would be null, in accordance with the 1969 Vienna Convention on the Law of Treaties, Art 19(c), 1155 UNTS 331.
31 UN Doc A/55/383 (2 November 2000).
32 1930 ILO Convention, Art 2(2).
33 Ibid,Art 25.
34 ILO Resolution, The Widespread Use of Forced Labour in Myanmar of 14 June 1999, 38 ILM (1999), 1215.
35 Report of the Commission of Inquiry Regarding the Observance by Myanmar of the 1930 Forced Labour Convention(2 July 1998).
resulting, moreover, in the displacement of between 5 and 10% of the Burmese population.36
The UN Working Group on Contemporary Forms of Slavery stated in its latest reports that slavery, in all its forms and manifestations, is a crime against humanity.37 It is difficult to uphold this statement in every case of slavery, unless there is proof of widespread or systematic action in this regard, whether it originates from agents or organs of a State or from non-State entities. It is evident, however, that most cases of slavery and related institutions are the result of well organised criminal elements with international connections, who exploit vulnerable elements of society and rely heavily in their evil schemes on the corruption of State officials.