Abstract

Excerpted From: Jocelyn Getgen Kestenbaum, Aesthetics of Slavery & Slave Trade Crimes, 37 Temple International and Comparative Law Journal 105 (Spring, 2023) (108 Footnotes) (Full Document Requested)

In his insightful new book, Invisible Atrocities: The Aesthetic Biases of International Criminal Justice, Randle DeFalco examines aesthetic biases of international criminal law (ICL) implementation, astutely arguing that ICL prioritizes punishing “horrific spectacles” of violence while ignoring less visible, attritive forms of violence that cause similar levels of harm and suffering. While agreeing with DeFalco's assertion that ICL is selective in its preference for “horrific spectacles,” this Article claims that even spectacular forms of violence have been rendered invisible in ICL when inconvenient factual evidence counters dominant narratives in international law that support the current liberal world order.

One such inconvenient factual circumstance is the persistence of slavery and slave trade crimes, despite the dominant narrative of the successful abolition of slavery and the international slave trade in the nineteenth century. Myriad practices, institutions, and systems of slavery and the slave trade have endured across time and space in furtherance of empire. Similar to historical antecedents and current iterations, the East African and Trans-Atlantic Slave Trades of the seventeenth through nineteenth centuries enslaved adults and children of all ages and genders in service of war and empire. Enslaved persons were forced to “toil[] gruellingly in fields as agricultural labourers” in systems of chattel slavery; others were compelled to work “in urban ports as dockhands and sailors.” Still others were exploited in various trades, such as carpentry, metalworking, and apparel making. Some enslaved persons were conscripted to fight in armies, while others were subjected to act as domestic servants.

Slavery in all its forms also has always included the exercise of powers attaching to ownership rights over sexual and reproductive autonomy and through the perpetration of sexualized violence. Women and girls of reproductive age and capacity were enslaved as “wenches” for forced procreation, or as concubines and “fancy girls” for enslavers' unfettered sexual access. Men and boys were enslaved as “bucks” for forced procreation, as bardaj (also referred as “kept boy[s]”) for enslavers' unrestricted sexual pleasure, or as harems eunuchs castrated to control other enslaved persons. Native American individuals of a third sex, called berdaches, were captured as prisoners of war, enslaved, raped, and emasculated. Enslaved persons were forced to inseminate other enslaved persons, to birth enslaved children, and to breastfeed enslavers' children or enslaved children for the purposes of increasing enslavers' wealth. Enslaved persons, including children, constituted war booty in conflict. Aesthetic biases, in part, have reduced sexualized violence in the course of enslavement to being legally characterized only as the crime of sexual slavery under the Rome Statute and, thus far, have led to adjudication only in cases of male-on-female heteronormative rape in the course of enslavement at the International Criminal Court (ICC).

Historically, the slave trade continued to manifest itself in various ways, nearly always accompanying slavery. In conflicts, members of armed groups reduced to slavery captured enemy soldiers and civilians under military occupation. Corporations kidnapped and forced persons into slavery. Institutions of higher education, religion, and science bought and sold enslaved individuals. Slave trading was established through myriad means, including commercial contracts, auction sales, debt payment and recovery, barter, exchange, or as collection of collateral on defaulted loans. Families traded in enslaved individuals between and among family members by inheritance or from individuals to organizations through bequests. The slave trade also occurred in the form of donations or gifts. Specialized slave trades focused on the sexualized nature and reproductive capacity of human beings enslaved as, inter alia, future “breeders,” eunuchs, or concubines.

Although the de jure status of slavery and the slave trade no longer exist today, slavery and the slave trade continue unabated in practice. Acts of both slavery and the slave trade remain prevalent--especially in areas of armed conflict and against migrants and members of minority groups. And while slavery and the slave trade can be systems and structures of oppression that are attritive and “unspectacular” in nature, often occurring over long periods and taking many forms, slavery and slave trade acts also frequently include “horrific spectacles” of violence.

Moreover, some of the spectacularly violent conduct that forms evidence of the perpetration of slavery (e.g., exploitation or control of sexual autonomy that constitutes an exercise of ownership) and the slave trade (i.e., abduction, kidnapping, or trafficking a person into a situation of slavery) manifests as other criminal conduct, permitting an obfuscation of the true scope and nature of slavery and slave trade crimes. The definitional crux of slavery, based on the exercise of powers of ownership over a person, is often overlooked as this exercise of power can be through non-acts and systems of control and subjugation over a person without direct or overt physical violence. For enslaved and slave-traded victims, however, the terrorization of complete subjugation can continue throughout the experiences of slave trading and enslavement.

In Libya, for instance, the “horrific spectacle” is visible but is not pursued as slavery and slave trade crimes under ICL. Border officers subject migrants between slave trades to relentless rapes, genital mutilations, forced nudity, and other gendered, sexualized violence until families pay slave traders to release them from detention. In addition, criminal gangs sell African migrants escaping conflict, oppression, and extreme poverty on open slave markets for a few hundred U.S. dollars. In recent years, as European destination countries have begun to tighten their borders, smugglers fail to reach migrants' destination countries and, instead, turn to selling their captives like chattel while enslavers force them to labor on farms.

In Iraq and Syria, beginning in 2014, ISIS fighters have enslaved and sold Yazidis of all ages and genders as slaves. The Committee for the Buying and Selling of Slaves has implemented the Caliphate's slave trade by distributing Yazidis at organized slave markets. ISIS policy has 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 (sabaya) and boy and girl children and permitted their ownership as Caliphate property.

Under this system, Yazidi women and girls have endured enslavement as individual ISIS fighters exerted various forms of power attaching to rights of ownership over, inter alia, their sexual and reproductive autonomy. 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. Even in universal jurisdiction cases in which states have investigated and prosecuted perpetrators for international crimes against Yazidis, enslavement criminal conduct has not been fully legally characterized, while slave trade crimes have been completely overlooked as separate international crimes.

Indeed, as will be explained infra, even when slavery is prosecuted, slavery and slave trade criminal conduct have eluded full legal characterization in cases before the ICC. In Ongwen, for instance, the trial court failed to legally characterize as criminal some slavery and all slave trade acts, partially due to aesthetic biases of how slavery, including sexualized enslavement, manifests as a crime. This is also partially due to structural deficiencies--perhaps in part resulting from aesthetic and other biases--in the Rome Statute that unnecessarily separate out the perpetration of “acts of a sexual nature” as sexual slavery while omitting the crime of the slave trade altogether.

In response to DeFalco's insights into ICL's attention to “horrific spectacles” of violence more broadly, this Article considers the ways in which slavery and slave trade crimes are rendered invisible under ICL to demonstrate that aesthetic biases--along with, or possibly in furtherance of, colonialism, capitalism, and imperialism--operate even in the case of spectacular forms of violence when inconvenient factual circumstances counter dominant narratives in international law. Part I outlines the definitional scope of slavery and the slave trade, finding that the Rome Statute diverges from customary international law to limit the ability of the ICC to hold perpetrators fully accountable for slavery and the slave trade crimes. Part II then examines cases in which slavery and slave trade conduct are characterized only as other international crimes, such as, inter alia, conscription of children, sexual slavery, and forced marriage as an “other inhumane act.” These more visible facets of slavery and the slave trade are recognized, but not as criminal conduct of slavery and the slave trade.

Part III explores slavery and slave trade conduct--including exercising ownership over children born into slavery and kidnapping, transferring, gifting, or otherwise bringing a person into, or maintaining a person in, slavery--that has not been legally characterized as international criminal conduct in recent ICL cases. The Article concludes by cautiously urging states parties to the Rome Statute to revise the Statute to reflect customary international law with regard to slavery and the slave trade as a necessary but insufficient step toward correcting such aesthetic and other biases in ICL.

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As Daimeon Shanks powerfully redirects us with regard to aesthetic biases in ICL, “instead of asking what the aesthetics of law are, we may choose instead to ask what are the roles that law's aesthetics play--who do they favor, what structures do they produce and reproduce, which hierarchies are constructed and maintained, and so on.” Indeed, when we see aesthetic bias operating in and through law, power is being exercised and attention to violent structures is being diverted. In the ICL project, aesthetic bias is generally operating to consolidate and reinscribe systems of current world empires that require the subjugation of human beings-- especially along racial and gendered lines--as the structure of global governance continues to be built upon, and maintained, through exploitation and inequality.

As a caution to deGuzman's call to expand the notions of what ICL covers, I urge scholars and practitioners to question whether such expansions will serve to further the imperialist projects of the current world order. What if we committed to pursue accountability for the crimes already established under international law fully and without selective implementation of the law? Slavery and the slave trade crimes' continued perpetration with near total impunity demonstrate that, no matter the spectacular nature of the crimes, ICL will render invisible even crimes that offer “horrific spectacles” of violence when such acts reveal inconvenient truths about the global world order and/or counter the dominant mythical narratives that support it. If the extraordinary spectacular crimes are the violence generated by, or in the service of, liberal world order and empire, then such crimes will continue to be rendered invisible as such in ICL. The more specific “horrific spectacle” (e.g., heteronormative rape in the course of enslavement) may be pursued as “atrocious,” but the institutions, systems, and structures that perpetuate such violence will be left intact.

A cautious next step toward rendering visible the aesthetic biases of ICL would be for states to amend the Rome Statute to include the international crimes of slavery and the slave trade and commit to eradicating all such systems of subjugation once and for all. Article 7(2)(c)'s enslavement provision requires amendment to encompass explicitly the criminal conduct of the slave trade, thereby rendering visible even spectacular forms of violence already encompassed within the larger ICL canon. Similarly, Article 8's war crimes provisions under both international and non-international armed conflicts require amendment to include slavery and the slave trade. Currently, sexual slavery is the only slavery-related crime enumerated as a war crime. Efforts to pursue transnational crimes, such as human trafficking, should not conflate human trafficking exploitation with slavery and slave trade ownership or otherwise obscure multiple forms of harm perpetration.

Troubling is ICL's slow erosion of slavery and especially the slave trade crimes--disfavored perhaps given their racialized roots, the myth of abolition, and the inability of Western imperial states to confront past and present complicity in slavery and slave trade systems--and ICL's turn toward other crimes as the only “horrific spectacles” worthy of redress. Rendering slavery and the slave trade visible as such spectacles worthy of redress may serve to counter the ways in which international criminal justice has reproduced, reinforced, and possibly entrenched a larger structure of global governance premised on racialized exploitation and inequality. Even more important to eradicate slavery and the slave trade is to commit more resources and advocacy efforts that prioritize the human rights of, and redress for, enslaved and slave-traded persons, as well as reform of domestic legal institutions, systems, and structures to end human subjugation and restore the dignity of enslaved and slave-traded persons globally.

Associate Professor of Clinical Law, Benjamin N. Cardozo School of Law.