Patricia M. Muhammad
excerpted from: Patricia M. Muhammad, The Trans-Atlantic Slave Trade: a Forgotten Crime Against Humanity as Defined by International Law, 19 American University International Law Review 883-947, 915-947 (2004) (329 Footnotes Omitted)
The Trans-Atlantic Slave trade was a lucrative international institution from which many nation-states benefited economically. As a result of its oppressive nature, it also caused notorious death and destitution. It was not until the twentieth century that the international community began its worldwide effort to define what acts constituted crimes against humanity and seek to prohibit such acts.
Upon reviewing the decisions made in the aforementioned cases, one can trace the evolution of international law. Generally, two sources of international law include a nation-state ratifying an agreement or treaty, and the international community accepting a general practice of law deemed international custom. At times, the cases recognized laws issued primarily for municipal application. While the United Nations has made efforts to achieve uniformity in adjudicating international crimes, the obstacle of applying anti-slavery statutes with homogeny to the international community still remains.
A. International Conventions and Statutes
1. The Slavery Convention of 1926
Generally, the Slavery Convention of 1926 states which acts comprise slavery and slave trading in Africans. Based on the intent of the signatories, the Slavery Convention was premised upon the Brussels Act, which intended to terminate the slave trading of Africans. The Slavery Convention represented the first international convention of its kind to focus on slavery and the African slave trade.
2. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery
Consequently, the United Nations executed the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which became effective April 1957. The signatories to this Convention acknowledged that slave trading and slavery failed to be eradicated throughout the international community and thus implemented additional guidelines regarding this inhumane institution.
3. The Rome Treaty Statute of the International Criminal Court
In 1998, the United Nations General Assembly adopted Resolution F, which endorsed the Rome Statute of the International Criminal Court. The Rome Statute entered into force effectively July 1, 2002. Under Article 7, this statute bestows the responsibility of preparing proposals for a provision of aggression, including defining the elements of crimes against humanity.
1. The Slavery Convention of 1926
The Convention specifically defines slavery as follows:
For the purpose of the present Convention, the following definitions are agreed upon:
(1) Slavery is the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised.
(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in 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 transport of slaves.
Many of the European governments, along with private merchants, explorers, and African monarchs satisfied the first prong of the definition of slavery by branding the Africans to ensure that others were aware to whom the slaves belonged. Additionally, slave masters and explorers possessing documents purporting ownership of Africans, legally sanctioned by the international community, was another form of one attributing one's right to own Africans, which also satisfied the first condition of slavery as defined by the Convention. These documents included registration documents, contracts, as well as last will and testaments of slave owners, which frequently transferred ownership of slaves to succeeding generations.
The second prong specifies all of the actions constituting the slave trade, beginning with the acquisition and capture of slaves. Thus, the kidnapping or authorization of the kidnapping of slaves from Africa by the Portuguese, European nations and merchants satisfied the element of "capture." Intent represented another aspect required to satisfy the elements of slave trade. This element was fulfilled from the first act of kidnapping or purchase to the resale in the lands across the Atlantic Ocean, it required that those who acquired the Africans do so for the purposes of reducing them to slavery.
Thus, every transaction reducing the African to a slave, destroying his freedom, obliterating family ties, which encompassed the Trans-Atlantic slave trade constituted slavery and slave-trading. These acts perpetrated by slavers included the involuntary capture and transport of Africans, any form of restriction that prevented Africans from freely moving about or living his or her daily life, the fastening of chains and shackles about the Africans' bodies, the shipment of the African captives involuntarily across the Atlantic Ocean, the display for sale on various lands, the branding, the purchase, the lashings from the bullwhip, and dismemberment and lynching of Africans by the slaver to instill fear in the other Africans. Likewise, every contract and treaty signed in the barter of African slaves, issuance of licenses, imposition of taxes and governmental lending of loans to private citizens to continue the exploitation of the slave trade demonstrates the intent of the parties to transport and trade African slaves. These acts definitively satisfy the element of slave traders selling people and fulfilling the definition of slavery and slave trading as defined by the Slavery Convention of 1926.
2. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery
Sections II and III of the Supplementary Convention on the Abolition of Slavery, the Slave trade and Institutions and Practices Similar to Slavery also addresses the institution of the slave trade and slavery. In defining the slave trade, Section II, Article 3 states:
The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties.
According to documented history, many European merchants and slavers captured and thereafter transported Africans by means of sailing to other countries in the Trans-Atlantic slave trade. Article 3 of the Slavery Convention holds these merchants and slavers criminally liable. The Article further states that one who acts as an accessory is a criminal under this Convention. The criminal intent in this context would most likely be the kidnapping, transport and barter in African slaves, deemed an unlawful offense by the Slavery Convention. Several nation-states purposely aided slave merchants and citizens by granting loans, and funding companies' slaving expeditions, as well as negotiating with African monarchs in order to acquire more Africans. In doing so, these governments supported slavery and all transactions involved in the slave trade, thereby satisfying the intent element. By issuing regulatory licenses, these nation-states not only officially sanctioned acts of the Trans-Atlantic slave trade, but also made great profits from the enterprise.
The Slavery Convention applies both to those directly involved in the acts of capturing, transporting, and selling slaves as well as accomplices to those acts. The crowns of these monarchs and their subordinate governmental entities were not physically present when slave traders captured and transported the slaves. Yet each time a monarch granted loans to laymen and merchants, and contracted agreements with other monarchs to continue the slave trade, they financially contributed to and aided in this crime. Thus, these nation-states are accessories to this crime against humanity and are liable under the Supplemental Slavery Convention. Consequently, the managerial participants--the slavers, overseers, raiders and merchants--along with some members of the international community are also accessories, and are therefore guilty of perpetrating a crime against humanity.
Under Section III, Article 5, the "act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence. . ." Throughout the Trans-Atlantic slave trade, participants branded Africans in order to illustrate their ownership of the captives. Thus, all slavers, slave-owners, monarchs and other participants who actually branded or supplied such materials with the knowledge that such materials would be used as tools for branding are criminally liable under Article 5.
Article 6 of the Convention is, to some extent, repetitive, stating:
The act of enslaving another person or of inducing another person o give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.
Like Article 5, Article 6 emphasizes that all acts causing another human being to be reduced to slavery are criminal offenses, including but not limited to trickery.
One may argue that, similar to evolving case law, the trend in international custom or usage would universally bind nation-states to the Slavery Conventions regardless of whether these entities officially ratified them. However, the Supplemental Slavery Convention only applies to those State Parties who signed or ratified it.
Because it was adopted years after most international slavery's abolishment, it is difficult, but not impossible, to use the Supplemental Slavery Convention as a standard of liability for past acts. To overcome this difficulty, one may argue that the 1926 Convention focuses on present or possible future breaches of its terms. Specifically, under the Convention, the Contracting Parties vow to "prevent and suppress the slave trade" and "to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms." Further, the Convention is silent as to retroactively penalizing involvement in the slave trade. Thus, it is possible that the International Criminal Tribunal will interpret the silence of the Slavery Convention of 1926 such that past acts could be adjudicated retroactively.
Both the 1926 Slavery Convention and the 1956 Supplemental Slavery Convention state that the "Convention will come into operation for each State on the date of the deposit of its ratification or of its accession." One may validly argue that once a nation-state ratifies the Slavery Convention, it has availed itself to the standards and legal implications outlined in the convention. This argument is reasonable, especially given the likelihood of international opposition to, and the United States' express prohibition of, ex post facto laws. Conversely, it can be argued that the present ratification merely subjects a state to the Slavery Convention's jurisdiction, at which point, a state can then be held for past violations of the Convention.
Another concern is that the status of governments and monarchs during the centuries of the Trans-Atlantic slave trade changed over time. One instance is that Portugal was under Spanish control until it gained independence in 1668. Therefore, to charge Spain as one government regime for the fifteenth and sixteenth centuries would be legally incorrect, although practically simple.
Despite these concerns, the standard put forth by the Slavery Convention is still applicable, because no other international law was in effect to measure what constituted a crime against humanity at that time. Additionally, since the Slavery Convention specifically mentions the Trans-Atlantic slave trade in its purpose for existence, it is an exacting measure that holds the slave trade and subsequent slavery as a crime against humanity.
The Slavery Convention holds the governments who signed and ratified it accountable for the implementation of justice and elimination of the slave trade and slavery. Therefore, the Convention is consistent with the author's argument that the governmental entities should be held liable for their intricate, legal entanglement in the Trans-Atlantic slave trade.
3. The Rome Statute of the International Criminal Court
Article 7 of the Rome Statute categorizes acts that constitute crimes against humanity, several of which are applicable to the acts committed by the perpetrators of the Trans-Atlantic slave trade. Generally, the acts of the slave trade fall under the Rome Statute's definition of a "crime against humanity." The Trans-Atlantic slave trade was a systematic attack against the African population. It flourished into an organized, financial institution, and was encouraged, financed, and otherwise participated in by various nation-states, seeking to enslave Africans.
More specifically, the acts constituting the slave trade directly violate several provisions of the Rome Statute. The African slaves were enslaved primarily by their European counterparts, in violation of Article 7(1)(c). Like the Slavery Convention, the Rome Statute highlights the exercise of ownership rights in the definition of enslavement. The slavers raiding, possession of ownership documents, and branding of captured Africans manifest these participants' exercise of ownership towards Africans. Regardless if the procedure to capture these human beings was ensured by kidnapping or purchase, the result was the enslavement of millions of Africans.
As a result of the kidnapping and sale of Africans from varying ethnic groupings and cultural distinctions, many were forcibly deported to the Western lands in continuance of the Trans-Atlantic slave trade, another act prohibited by the Rome Statute. Further, the African slaves were forcibly imprisoned at forts on the coasts of Africa. Their shackled bodies, forced stowage aboard ships, and sale to other merchants and slave-masters in the Western lands constitutes imprisonment and a severe deprivation of physical liberty.
One may argue that these acts, while in violation of the Rome Statute, were lawful because they did not violate the international law of the time, which had no universal standard. Because many nation-states contracted, participated in, encouraged, and profited from the Trans-Atlantic slave trade, one may even argue that international custom, if not international law, permitted the deportation of millions of Africans at the time. If the Slavery Convention is deemed applicable to the past acts of the Trans-Atlantic slave trade, however, perhaps the definitions and standards of the Rome Statue should serve as guidelines for adjudging those crimes.
Also applicable is the crime against humanity known as torture, defined by the Rome Statute as "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions." Such routine sufferings endured by African slaves were the lashings of the bullwhip, the burden of heavy chains, shackles and other imprisoning iron devices, branding of flesh, lynching by rope or other material and physical dismemberment or amputation. All of these acts were imposed by those in authority or "ownership" of slaves with the intent to cause severe physical pain and suffering, and as a result of continuous impending harm, great fear amongst the Africans. Rape and other sexual assaults occurred aboard ships during the Trans-Atlantic sojourn, and after arrival and settlement in the West. Other unusual punishments, like setting slaves on fire so they burn to death or physically lashing pregnant slave women, would undoubtedly satisfy the condition of other inhumane acts which caused great suffering or serious injury to one's physical or mental health.
In contrast with the Slavery Conventions, the inherent anomaly of the Rome Statute is that it specifically cannot be applied retroactively, although it provides an excellent standard, thus far, for defining crimes against humanity. Therefore, the Rome Statute of 1998 apparently would not apply to the Trans-Atlantic slave trade, as a crime against humanity, which occurred over several centuries. However, the Statute also states that crimes within the jurisdiction of the International Criminal Court, as defined by the Rome Statute, are not subject to any statute of limitations.
At first glance, this article conflicts with Article 11 of the Rome Statute because the statute is not to be applied retroactively, yet the crimes are not subject to any statute of limitations. The likely interpretation is that since the passage of the Rome Statute as of July 1, 2002, any crimes accruing after this date, yet to be adjudicated, will not be subject to any statute of limitations. This is due to the nature of the statute, in which jurisdiction can only be gained after a nation has ratified and submitted to the Rome Statute. Additionally, most slave merchants, ship captains, laymen and governments of the international community who participated in the Trans-Atlantic slave trade are not physically present for the Rome Statute to be imposed upon them.
However, the Rome Statute, as distinguished from the Slavery Conventions, only applies to natural persons and not to governments. This is yet another difficulty in using the Rome Statute as a measure of the Trans-Atlantic slave trade as a crime against humanity; almost all of these individuals are deceased although many of the governmental entities still exist. These limitations prevent the prosecution of the Trans-Atlantic slave trade under the Rome Statute by the International Criminal Court, but nevertheless do not necessarily limit the possible adjudication of the institution of the slave trade under the Slavery Conventions. Despite the existence of obstacles in officially and universally adjudicating the Trans-Atlantic slave trade as a crime against humanity, the standards of International Criminal Tribunals rectify these hurdles because of their ability to apply retroactively. One example is the United Nations' establishment of International Criminal Tribunal for the Former Yugoslavia. This tribunal was established in 1993 as a response to the crimes against humanity that were perpetrated against citizens in this region during the early 1990's. This tribunal applies retroactively to perpetrators of these crimes, but the tribunal is similar to the Rome Statute because it also only affects natural persons.
Another example of an International Criminal Tribunal is the International Criminal Tribunal for Rwanda, which was established by the Security Council of the United Nations. This tribunal has jurisdiction over certain violations of international humanitarian law committed during 1994. Thus, this tribunal also has retroactive jurisdiction, but is also similar to the Rome Statute and the International Criminal Tribunal for the Former Yugoslavia because it only applies to natural persons.
Based on the legal principles set forth in the International Criminal Tribunals, the Rome Statute, and the Slavery Conventions, the international community may acknowledge the Trans-Atlantic Slave trade as a crime against humanity. More specifically, under the Slavery Conventions the governments and monarchs involved may be held accountable for their involvement in the Trans-Atlantic Slave trade. This legal objective can be realistically achieved by using the previously mentioned International Criminal Tribunals as prototypes for developing an International Criminal Tribunal on the Trans-Atlantic slave trade and slavery.
Despite lingering arguments disputing the applicability of these Conventions and Statute as the appropriate mechanisms to decree the Trans-Atlantic slave trade as a crime against humanity, these agreements show that the principles involved are generally recognized under international law as crimes against humanity. The Trans-Atlantic slave trade comprised of a series of transactions in which individuals and governments of the international community benefited from the sale of other humans' lives. The development of this inhumane enterprise evolved over the years to maintain the participants' greed and wealth.
Many individuals entered into contracts allowing slave expeditions and the use of ships to circulate human cargo. Several nation-states rigorously supported the enterprise with financial contributions and legal sanctions through lawfully-binding treaties and other contractual agreements. Millions of African lives were subjected to forced labor, displacement, rape, brutal treatment and general torture by those who purchased and sold them. The Slavery Conventions clearly defines slavery; while the Rome Statute includes general enslavement as a crime against humanity. Further, the Rome Statute delineates additional acts that constitute crimes against humanity that were also implemented during the course of the Trans-Atlantic slave trade. The whole of the slave trade demoted African existence to that of an inanimate object, subjugated to the whims, desires, and control of mostly European individuals and monarchs. Ironically, crimes against humanity intrinsically refer to natural human beings of the earth and imply a significant objection to the maltreatment of human beings by others. Yet, the participants of the trade did not perceive Africans as humans; they were commodities to be kidnapped, used, tortured and executed as deemed by the perpetrators of these crimes.
Therefore it is necessary to hold the international community accountable for this great crime against humanity. It has been said:
SLAVERY: Africans and African Descendants share a common history shaped by the slave trade, slavery, conquest, colonization and apartheid, all of which constitute crimes against humanity, and a common experience of anti-Black racism. We acknowledge that people of African descent live all over the world, although in many instances they have been renamed, suppressed and marginalized. On every continent African and African Descendants continue to suffer from racism . . . We affirm that the Trans-Atlantic Slave Trade and the enslavement of Africans and African Descendants was a crime against humanity and a unique tragedy in the history of humanity, and that its roots and bases were economic, institutional, systemic and transnational in dimension . . .
There are some who have recognized the brutal nature of the Trans-Atlantic slave trade. From its inception, throughout its flourishing years and to its known end, this enterprise has killed and effected millions of Africans' and African descendants' lives. This essay demonstrates that when considering the historical reality of the Trans-Atlantic slave trade and analyzing the international norms for classification of crimes against humanity, the slave trade was definitively a crime against humanity.
The Trans-Atlantic slave trade is one of the greatest horrors in the annals of world history, yet it has never been adjudicated. There has been no compensation to the victims or their progeny, and for the most part there have been no apologies from the participants, nor from their successors who sit in the same seat of governments that sanctioned this institution. The faces of those who suffered because of the economic greed of slave traders are yet to be remembered in such a forgotten crime against humanity. This crime, even in the presence of modern treaties, statutes, and international recognition, has yet to bring those entities to account for their participation in the Trans-Atlantic slave trade.
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