Enslavement as a Crime against Humanity: Some Doctrinal, Historical and Theoretical Considerations
Dr Edwin Bikundo, Griffith Law School
Although Slavery is legally defined as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ this paper argues that ‘status’ is emphasised at the expense of ‘condition’. Slavery was declared a crime against international law much earlier than the category of crimes against humanity crystallised. In international humanitarian law it is also punishable as a war crime. In international human rights law slavery bears the distinction of being prohibited both under the International Covenant on Civil and Political Rights as well as – albeit less prominently – the International Covenant on Economic, Social and Cultural Rights. In that way, it crosses the public/private divide as well as arguably sits at the threshold where entitlements almost seamlessly merge into rights. Historically slavery was justified on the one hand as an expression of natural law and contradictorily on the other hand as only justifiable through positive law because it was in breach of natural law. It therefore interrogated even the natural law/positive law dichotomy in illuminating ways. The inclusion of enslavement under the rubric of crimes against humanity therefore helps to not only further explain the essential elements of that category but also highlights how humanity itself is an evolving project and international criminal law plays a crucial role in this on-going anthropogenesis.
Mephistopheles: I’m your slave: I’m yours!
Faust: And what must I do in exchange?
Johann Wolfgang von Goethe Faust
Keywords: Giorgio Agamben – Roberto Esposito – international criminal law – international human rights law – Roman Law
Dr Edwin Bikundo is a Senior Lecturer at the Griffith Law School, Program Director for the Master of International Law, and Managing Editor of the Griffith Law Review. The Griffith Law School is located on the Gold Coast Campus of Griffith University.