The slave trade is commonly misperceived as a historical crime. Yet, the scourge of the slave trade is present throughout the world today. Combatting these ongoing atrocity crimes is essential to ensure that human rights are upheld by the international community. The crime of the slave trade fills an impunity gap, especially in light of recent harms perpetuated by the Islamic State of Iraq and Syria (ISIS) against the Yazidi in Iraq. Revitalization of the conceptualization of the slave trade as a crime under international law might ensure greater enforcement of one of the oldest core international crimes. Critical proposed amendments to existing international treaty law must be adopted with haste to close an unconscionable factual and legal gap in the international legal architecture. New proposals on the table now provide an opportunity to do so. This unique moment must be seized.
The slave trade prohibition is among the first recognized and least prosecuted international crimes. Codified in the 1926 Slavery Convention, the 1956 Supplementary Slavery Convention, Additional Protocol II to the Geneva Conventions (APII), the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR), the prohibition of the slave trade is a norm with the highest status under international law. Under no circumstances may states permit slave trade crimes within their borders.
It is important to distinguish between the slave trade and slavery, which are separate and distinct crimes. Both should also be differentiated as legal concepts from so-called “modern slavery,” a term which is used by governments (e.g. the British Parliament, US State Department) to refer to trafficking in persons, human trafficking, and forced or compelled labor. Indeed, practitioners have turned toward human trafficking as the penal framework to combat slavery crimes and related criminal conduct in the fight against “modern slavery.” And, while combating human trafficking is critical, it is separate and distinct from slavery and the slave trade.
Slavery and the slave trade were proscribed as international crimes in the 1926 Slavery Convention, which defines slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” Conversely, the Convention defines the slave trade as “all acts involved in the capture, acquisition or disposal of a person with intent to reduce [that person] to slavery; all acts involved in the acquisition of a[n enslaved person] with a view to selling or exchanging [the person]; all acts of disposal by sale or exchange of a[n enslaved person] acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in [enslaved persons].”
The slave trade is commonly misperceived as a historical crime. Yet, the scourge of the slave trade is present throughout the world today.
By the time of the adoption of the Slavery Convention, the Trans-Atlantic Slave Trade, domestic slavery, and slave trading had ceased in the Americas and the Caribbean. The drafters intended primarily to outlaw ongoing slavery in Africa, Asia, and the Middle East, and to distinguish between slavery and forced labor in their colonies. If considered outmoded in 1929, why is it relevant to combat the slave trade today?
Despite its peremptory status as a mandatory crime under international law, acts of the slave trade continue with impunity, fueling contemporary conflicts around the world. Beginning in 2014, for example, ISIS fighters in Iraq and Syria enslaved and slave traded Yazidi women and children in service of the Caliphate. Buttressed by a political ideology of gender inequality and religious superiority, ISIS arranged for its 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, permitting sexualized violence in the course of enslavement of Yazidi women and girls. ISIS often presented Yazidi women and girls “as a package” until girls reached the age of nine and, thereafter, sold them separately. The Committee for the Buying and Selling of Slaves carried out the Caliphate’s distribution of Yazidi females at organized slave markets. ISIS required fighters to pre-register for their slave purchases of females priced and sold according to their ages. Yazidis reported that, prior to their enslavement, they were registered by officials at holding centers in Syria, loaded onto trucks and moved to holding sites in Iraq. ISIS fighters documented names, ages, and marital statuses, and photographed the Yazidis at these holding sites. At times, ISIS auctioned Yazidi women and children online, replete with registration information, photos, and minimum purchase prices. Yazidi boys, also enslaved, were forced to convert to Islam, to perform forced labor, and to train and fight with ISIS in military camps in Iraq and Syria.
The slave trade condemns perpetrators who acquire and intend to reduce all persons regardless of age, race, gender, immigration, or refugee status into slavery. Just as importantly, the slave trade prohibition outlaws all acts of exchanging or transporting a person already enslaved to another slavery situation. While slavery defines who is a slave and who is a slave owner, the slave trade defines how one is reduced to slavery, transported as a slave, and/or maintained in slavery and by whom. Thus, while these crimes occur in tandem, they are distinguishable crimes, able to be pursued separately.
International criminal law courts, including the International Criminal Court (ICC), often have indicated that acts of slave trade have occurred, describing kidnapping, abducting, transporting, holding, gifting, or related treatment of persons with the intent to reduce them or maintain them in enslavement. These cases, however, have not been able to characterize these acts as criminal as they have not resorted to customary international law or because the slave trade is missing from the Rome Statute, the ICC’s foundational treaty, as an enumerated crime under both Article 7 (crimes against humanity) and Article 8 (war crimes). Further, this omission has made its way into the Draft Articles on Prevention and Punishment of Crimes Against Humanity (“Draft Articles”) given its reliance on Article 7 provisions of the Rome Statute.
In this regard, Sierra Leone, a country with a profound relationship with the crimes of slavery and the slave trade, has shown leadership. Currently, the Vice President of the ICC’s governing body, the Assembly of States Parties, Sierra Leone has proposed amendments to the Rome Statute to include the slave trade as a crime against humanity and both slavery and the slave trade as war crimes in both international and non-international armed conflicts. These proposals are critical to close factual and legal impunity gaps toward more comprehensive redress for victims-survivors of the slave trade today and into the future.
Moreover, on April 11, 2023, the Permanent Mission of the Republic of Sierra Leone to the United Nations submitted in writing its proposal to include the slave trade as an enumerated provision in the Draft Articles on Crimes Against Humanity (CAH). It is imperative that the slave trade be incorporated in both the Rome Statute and a proposed standalone CAH treaty, as the former has criminal jurisdiction over persons while the latter could hold States to account for their crimes. Further, since neither Syria nor Iraq is a party to the Rome Statute, they are beyond the reach of the ICC. Such amendments will bring the Rome Statute and CAH Draft articles in line with customary international law regarding the slave trade.
Prohibition of the slave trade might redress ISIS-perpetrated crimes against the Yazidis in Iraqi domestic courts or other judicial forums. The slave trade—despite its underuse, its implicit position in certain international judicial statutes, and disconcerting absence in the Rome Statute—still constitutes a feasible, if not vital, legal tool for redress.
The slave trade is currently “missing in action” in international criminal law adjudication and redress. The time has come to restore it, beginning with the proposals made by Sierra Leone.
Editor’s Note: The Assembly of States Parties (ASP) to the ICC will consider the proposed amendments to the Rome Statute in 2025. Shortly after this article was drafted, for the first time in nearly two decades, members of the American Society of International Law (ASIL) are asked to consider for adoption a resolution relating to principles of international law and international relations regarding slavery and the slave trade. To learn more about the Crimes Against Humanity treaty and get involved, please visit: www.cahtreatynow.org.