The panel was convened at 9:00 a.m., Friday, March 30, by its moderator, Adrien Wing of the University of Iowa College of Law, who introduced the panelists: Diane Marie Amann of the University of California, Davis School of Law; Kevin Bales of Free the Slaves; and Adrienne Davis of the University of North Carolina School of Law.
INTRODUCTORY REMARKS BY ADRIEN WING *
Adrien Wing introduced the panel and served as its moderator. She noted that although we have just marked the two-hundredth anniversary of the formal abolition of slavery, many people around the world today are literally slaves, and many others are de facto slaves. Their ability and that of their families to leave their "employers" is severely restricted and would meet any modern definition of slavery. Professor Wing then introduced each of the panelists, Diane Marie Amann, Kevin Bales, and Adrienne Davis.
SLAVE TRAFFICKING AS A CRIME AGAINST HUMANITY
By Diane Marie Amann ([dagger])
"It is hard to believe that what would now be a crime against humanity was legal at the time," (1) noted British Prime Minister Tony Blair in a November 2006 speech anticipating commemoration of the Act of March 25, 1807, by which Parliament abolished slave trading. (2) That Act had followed a similar statute passed by Congress three weeks earlier; (3) both took full effect the next year. In the single sentence quoted, Blair hit upon something significant: What is today a crime against humanity was once a legitimate form of commercial discourse; then, however, in relatively short order, slave trafficking was outlawed, first by national and eventually by international laws. Today the law universally proscribes trafficking in slaves--indeed, slavery itself.
Notably, examination of the circumstances surrounding abolition reveals frequent evocations of "humanity." These days it is commonplace to call an atrocity a "crime against humanity." Yet there is little understanding of the term. What is "humanity"? Why is it that when the victim is "humanity," rather than a "human being," international intervention becomes proper? There are answers to questions like these when it comes to the crime of genocide; in contrast, one finds scant study of the meaning of crimes against humanity. The evolution of trans-Atlantic slave trafficking from legitimated commerce to a crime against humanity can help to illuminate the meaning of that crime. Examples from the American experience may begin to lay the groundwork.
Article I, section 2, clause 3 of the U.S. Constitution of 1789 valued "all other Persons" at three-fifths of "free Persons," and section 9, clause 1, of the same article permitted "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit" to continue at least until 1808. Such provisions were not the result of unanimous support for the slave trade; in point of fact, The Federalist characterized both clauses as steps away from the view that slaves are not-humans. In No. 42, James Madison wrote that the Importation Clause "ought to be considered as a great point gained in favor of humanity" because it put a twenty-year end-date, even in "the few States which continue the unnatural traffic," on "a traffic which has so long and so loudly upbraided the barbarism of modern policy." The Federalist No. 54 saw the valuation clause as a rejection of the Southern claim that slaves were not humans, and an acknowledgment that for some purposes at least slaves were not "degraded from the human rank"--although they retained "the mixed character of persons and property."
In his African Slavery in America, the English essayist Thomas Paine called on Americans to end slavery because it was an "unnatural commodity" obtained by means of European bribery and debasement of the "inoffensive," "industrious," and pacifist peoples of Africa. (4) Since enslavement typically occurred outside the context either of war or of criminal conviction, Paine argued, its victims "have still a natural, perfect right" to their "freedom." Paine repeatedly invoked "humanity" to condemn the crime he called "man-stealing." He stressed the evil etched upon the perpetrators: "The managers and supporters of this inhuman trade" were "devils, rather than Christians," and would have "to answer ... to the common Lord of all!" Paine anticipated global proscription, asking: "Should not every society bear testimony against it, and account obstinate persisters in it bad men, enemies to their country, and exclude them from fellowship, as they often do for much lesser faults?" He answered his own question: "[T]he governments whenever they come should, in justice set them free, and punish those who hold them in slavery." Nevertheless, Paine seemed perplexed with what to do with slaves.
This certainty that slavery was wrong, coupled with uncertainty respecting those who had been enslaved, played out as well in the U.S. Supreme Court. In The Antelope, the 1825 case named after a ship seized off Florida's coast, Portugal and Spain sued to reclaim as property the 280 Africans found on board that their nationals had acquired "in the regular course of legitimate commerce." (5) Chief Justice John Marshall agreed that property interests were at stake, but added that they were "in conflict with" another "sacred righ[t]," that of "liberty." In a passage that gives pause to any advocate of the consultation of foreign norms, he wrote:
That the course of opinion on the slave trade should be unsettled, ought to excite no surprise. The Christian and civilized nations of the world, with whom we have the most intercourse, have all been engaged in it. However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully interrupt. It has claimed all the sanction which could be derived from long usage, and general acquiescence. (6) Despite his expressed pride in Anglo-American abolitionism, Marshall privileged "strict law" over "public feeling," Westphalian equality of states over the actions of the one or two states he clearly considered to have moved in the right direction. Customary international law trumped domestic statutes, so that the Court returned any "African" to whom title could be established.
The tables turned in The Amistad judgment handed down sixteen years later. (7) Grappling with the same interplay of domestic prohibition and international permission, Justice Joseph Story liberated dozens of African children, women, and men found on a ship off Long Island. The facts weighed more heavily against them, for they had mutinied. Spain demanded the return of all on board, but the Court held that "these African negroes" were not "slaves, but kidnapped, and free negroes." Like Marshall, Story saw a "conflict of rights"; unlike Marshall, Story ruled that the "human life and human liberty ... in issue" required the discharge of all from custody.
Why the difference? One suspects a confluence of events--advancement of abolitionism, better enforcement, and, at least in the northern states, a growing antipathy to slavery. Critically, too, the mutineers had come to be seen as humans vested with rights to life and liberty--rights that included a right to self-defense against enslavers. The objects of the judgment in The Antelope were known only as "the Africans," but those of The Amistad had names. One, Joseph Cinque, testified eloquently before the Court. He and his comrades had become familiar, and so their plight was seen as an affront to humans and, by extension, to humanity.
These examples offer insights into the meaning of "crime against humanity."
First, victims must be seen in the eyes of the judging community as fellow humans so that their situation may be seen as inhuman, as something to which the community itself could, but ought not to be, subjected. Second, the concept depends on exercise of judgment that exceeds the narrow bounds of positive law. There needs to be a mechanism for application of those very "public feelings" that Marshall shunned in The Antelope. Universalist foundations of humanity's law thus ought to remain in the reasoning. Third, part of what makes this crime more than an ordinary offense against person is that society at large regards the committer of such crimes as himself not human, as having by his act excommunicated himself from humanity. Fourth, these observations pertain to other acts constituting crimes against humanity. Enslavement surely renders a human not-human. But the dynamic is also at work in, for instance, torture--not just because torture was often an aspect of enslavement, but also because, even absent a master-slave relationship...