Abstract

Excerpted From: Jocelyn Getgen Kestenbaum, The Myth of Slavery Abolition, 75 UC Law Journal 1287 (June, 2024) (265 Footnotes) (Full Document)

The successful legal abolition of slavery and the slave trade of the nineteenth and twentieth centuries is a central and dominant narrative of international human rights law, a framework that is based on fundamental ideals of liberty, equality, and human dignity. While international law did abolish de jure and de facto slavery and the slave trade, these crimes persist in practice globally. As in some of the worst slave trades of the past--namely, the Trans-Atlantic and East African Slave trades in which millions of Africans were abducted and forcibly removed to the Americas, the Middle East, and Asia global capitalist economy remains dependent upon slave trade and slavery institutions, systems, and practices in which perpetrators exercise ownership powers over human beings in order to extract labor or otherwise subjugate them.

Slavery and the slave trade continue to fuel contemporary conflicts around the world. Beginning in 2014, for example, Islamic State of Iraq and the Levant (ISIL) fighters in Iraq and Syria have continued to enslave and slave trade Yazidi women and children. The Committee for the Buying and Selling of Slaves organized slave markets to "distribute," or slave trade, captured Yazidis as property of the Caliphate. ISIL policies have permitted fighters to "buy, sell, or give as a gift female captives" who were war spoils. The policy intentionally reduced into slavery "non-believing" women and children of all genders. This system of slavery and slave trading permitted sexualized violence in the course of enslavement as individual ISIL fighters exerted various forms of ownership over Yazidi women and girls' sexual autonomy. Yazidi boys, also enslaved, were forced to convert to Islam, to perform forced labor, and to train and fight with ISIL in military camps in Iraq and Syria.

Outside of conflict-related enslavement, a recent domestic criminal case in Lebanon alleges that sponsors under the kafala system subjected Meseret, an Ethiopian migrant domestic worker, to, among other crimes, slavery and the slave trade. Meseret's kafeel recruited and then held her captive in an apartment for more than seven years without pay; her captor subjected her to physical and verbal abuse and did not permit her to contact her family. This case is not an isolated one; the kafala system's reliance on private sponsors and lack of labor protections make the system particularly susceptible to slavery and the slave trade.

Corporations continue to be complicit in slavery and slave trade perpetration in their supply chains. Recently, eight Malian children who were forced to stay and work on cocoa plantations without pay sued Nestlé, Mars, and Hershey, alleging related crimes of human trafficking and forced labor under the Trafficking Victims Protection Rights Act ("TVPRA"). Such acts, while not characterized legally by advocates as slavery and slave trade, constitute the slave trade when perpetrators intend to bring individuals into or maintain them in a situation of slavery and slavery when perpetrators exercise powers attaching to the rights of ownership over them.

As troubling as the continuation of slavery and the slave trade is today, states have yet to prioritize protection of and redress for human beings enslaved and slave traded. Despite slavery and slave trade prohibitions' jus cogens normative status and attendant erga omnes obligations of states, human rights law has remained underutilized, hindering the emancipation of human beings and the eradication of the structures and systems that perpetuate human subjugation and ownership-- including slavery and the slave trade.

While some scholars claim that slave trade abolition was one of the most important international law advances of the nineteenth century, historians and other experts suggest that suppressing the slave trade through international law mainly reinforced the legal authority of empire, furthering, inter alia, forced labor, servitude, and sharecropping economies while also perpetuating mythologies of successful abolition. By examining legal liberalism's historical racialization and protection of capital accumulation over human dignity and rights, a non-dominant narrative as to why international human rights prohibitions of slavery and the slave trade have never taken hold moves to the foreground. Indeed, dominant progress narratives of successful eradication of the slave trade and slavery do not hold water in light of facts that support narratives of complicity and continuing racial subordination and exclusion for the benefit of empire in international law.

Abolition of the slave trade and suppression of slavery through international law may have contributed to the end of de jure slavery institutions and practices of state-sanctioned ownership of persons; however, colonial expansion and the desire to turn colonial subjects into a "tax-paying workforce producing for the market" continued slavery and slave trade harms while also furthering other forms of exploitation as brutal and oppressive as slavery and slave trade practices. While not displacing slavery and the slave trade, exploitation practices of forced labor and human trafficking became more prevalent given colonialists' need to separate land from labor in a way that created wage laborers out of farmers and herders.

At the turn of the twentieth century, states and private businesses continued to exploit labor in unimaginable ways to produce raw goods, such as cocoa and rubber, to meet market demands. And despite the narrative of successful abolition of slavery and the slave trade, practices of trading in and exercising powers of ownership over persons continue largely unaddressed as such in international law today. In this way, the actual story of anti-slavery and slave trade abolition in international law is one of "continuity and responsibility": International law continues to reproduce racialized institutions of international economic hierarchy through slavery, the slave trade, and other related practices. Indeed, states have not only ignored the human dignity of enslaved and slave-traded persons generally, but also have actively disregarded the plight of individuals whose racial designation serves a colonial or neocolonial function in the global economy--an economy that would be deeply threatened if the humanity of those racialized groups were fully respected.

Despite the widespread continuation of slavery and slave trade practices across the globe, international law's prohibition of slavery and the slave trade--which has made its way into present-day human rights treaties and customs as a jus cogens, non-derogable norm--has the potential to be transformative in the struggle for global emancipation of individuals enslaved and slave traded today. As a step toward that goal, this Article reckons with some of the myths of international human rights law and the canon itself, attempting to identify underlying structures that international law supports by design so as to reimagine and possibly unlock the transformative, emancipatory potential of the human rights law prohibitions of slavery and the slave trade.

This Article builds upon and contributes to scholarship by challenging the Eurocentric historical narrative of slavery and the slave trade abolition that dominates the legal historical landscape, offering a critical analysis and aligning with decolonial and Third World Approaches to International Law ("TWAIL") and Critical Race Theory ("CRT") scholarship. It adds to the growing scholarly pursuit of understanding the impact of historical erasure and dominant narratives on the legal profession and practice today, including in the field of international human rights law. This inquiry takes as a starting point the need to reconceptualize international human rights law narratives, doctrines, and institutions in light of suppressed or erased histories. Many international lawyers and scholars of antislavery, abolition, and related law overlook the links between racial subordination, global economic structures, and the international law that perpetuates the harms of slavery and the slave trade through settler colonialism and racialized capitalism.

This Article applies a critical lens to offer a narrative as to why-- historically and until today--the prohibitions of slavery and the slave trade have been underutilized in international human rights law implementation and enforcement. Part I discusses the international law of abolition, first to suppress the slave trade and later to prohibit slavery and the slave trade, finding that international law enforcement did not prioritize the protection or redress of enslaved individuals and, thus, did not provide a foundation on which to support an antislavery human rights law movement. Instead, abolition served to "other" the non-Western, "uncivilized" countries that permitted slavery while policing slavery and slave trading through interventionist policies that consolidated European empire.

Part II interrogates two post-World War II realities: as international human rights law developed, the use of international criminal law to punish large-scale human rights abuses gained momentum. Part III examines a trend to ignore slavery and slave trade prohibitions under international human rights law. I analyze the pivot at the end of the Cold War toward a transnational criminal law framework using "modern slavery" rhetoric to suppress human trafficking-- what began as the "white slave traffic" to suppress sexualized exploitation of white women and girls--and other exploitation in international migration. Part IV discusses structures of racialized subordination, capitalism, and empire when evaluating advocacy strategy in accountability for slavery and slave-trade harms. This Part also focuses on human rights law enforcement toward advocacy priorities for the human rights and dignity of enslaved and slave traded individuals globally. Although imperfect in design--possibly intentionally so-- and selective in implementation, the human rights framework has the potential to transform domestic legal structures toward eradicating slavery and slave-trade systems, institutions, and practices, and toward providing redress to enslaved and slave-traded persons.

[. . .]

In Capitalism and Slavery, Greg Grandin writes that:

[E]ach generation--from W.E.B. Du Bois to Robin Blackburn, from Eric Williams to Walter Johnson--seems condemned to have to prove the obvious anew: Slavery created the modern world, and the modern world's divisions (both abstract and concrete) are the product of slavery. Slavery is both the thing that can't be transcended but also what can never be remembered.

The same can be said even more emphatically of the slave trade. This Article attempts to contribute to retelling--and remembering--international antislavery law past and present through a critical race and decolonial lens to question and counter the dominant discourse of successful abolition. This retelling interrogates the reasons why slavery and the slave trade prohibitions always have been and continue to be underutilized--and even ignored in the case of the slave trade--in international human rights law advocacy today.

Beneath the surface, the dominant international law narrative of successful abolition is mythical and false. As Makau Mutua has demonstrated, international law has been instrumentalized to advance the interests of particular peoples, nations, and regions at the expense of others. International law, for instance, has been intimately interconnected with, has been shaped by, and has furthered the projects of Western colonization, racialized capitalism, and empire. To say that racism and racialized subordination influenced the development of international law understates the centrality of these structures in the evolution of international legal norms and their enforcement. Through positivist principles of state sovereignty and norms of noninterference in the internal affairs of other nations, international law has facilitated--or has at least provided cover for--racial subjugation and human rights abuses, including slavery and the slave trade, on a massive scale.

Interrogating international slavery and slave trade abolition legal histories permits a critique of dominant and contradictory narratives of successful abolition through international law. The reality that the perpetration of slavery and the slave trade continue with very little redress and near total impunity for individuals enslaved and slave traded confronts Western state narratives of successful eradication of these harms. The slave trade cannot continue to be ignored in fact or in law. The widespread perpetration and complicity of so many Western nation states in slavery and slave trade systems, institutions, and practices, as well as the continuation of colonialism and Western imperialism, may explain in part the underemphasis on these prohibitions and their abolition in the human rights framework today. Even when these systems were legal, slavery and the slave trade were clearly amoral and destructive. Anglo-European states especially need to distance themselves from their own history of instrumentalizing human rights and humanitarian intervention to justify violent conquests and colonization of other peoples and lands, as well as continuation of racialized economic systems.

The international abolition law movements include racist discourses of empire and overtones of the "white man's burden" to "civilize" non-white ""savages." The suppression of the slave trade and slavery was part and parcel of Europe's "civilizing mission" that justified conquest and colonization of Africa. Many slaves were freed only to end up in situations of forced labor or military service. While scholars have criticized the international human rights legal distinctions between slavery, servitude, and forced labor as "flawed," this Article posits that such legal distinctions are baked into the legal framework by design, providing evidence of international law's complicity in continuing racial subjugation and exploitation in the service of capitalism, colonization, and empire.

This critical retelling suggests that international law has never prioritized the rights of human beings enslaved and slave-traded and that, to do so, advocates should shift focus to increase efforts for human rights law enforcement and redress. Such a focus would work more toward transforming structures, such as racialized capitalism and colonialism, that perpetuate these systems of violence, oppression, exploitation, and ownership.

Scholars, including feminists, have voiced concerns with the governing work of international criminal law in upholding hierarchical state-based order. For some, criminal law is implicated in maintaining the status quo and perpetuating ongoing social inequalities: "The criminal justice apparatus is about order and its reproduction, and about maintaining the existing hierarchy of status and privilege, and only incidentally about crime or morality or the safety of individual citizens and their communities." International criminal law aims at naming individual perpetrators of violence, but in doing so, may further entrench structural violence of both state and private actors.

When problems of trade in--and ownership of--human beings is seen as a moral or criminal issue rather than a social, labor, or human rights issue, the tendency has become an opting for solutions that involve control and punishment of perpetrators, but not one prioritizing the human beings targeted for ownership or their rights. Further, the outcome tends to absolve state and corporate complicity in perpetration of slavery and slave trade harms while maintaining the systems that support the exploitation and ownership of human beings. A cautious engagement with international criminal law toward opening avenues for redress and accountability while increasing commitments to human rights law may help to shift power toward real structural change.

Professor of Law, Benjamin N. Cardozo School of Law; Faculty Director, Cardozo Law Institute in Holocaust and Human Rights; Director, Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic.