Conflict-Related Sexual Violence Symposium: Conversations under the Rome Statute –Enslavement and Slave Trade

[Patricia Viseur Sellers is the Visiting Fellow at Kellogg College of the University of Oxford and Special Advisor for Gender for the Office of the Prosecutor of the International Criminal Court. Jocelyn Getgen Kestenbaum is the Associate Professor of Clinical Law at the Benjamin N. Cardozo School of Law where she directs the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic and the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR). This is a post in our joint blog symposium building on the discussion focusing on accountability for conflict-related sexual violence crimes associated with slave trade, slavery and trafficking, held as part of the Digital Dialogue Series, hosted regularly by the UN Team of Experts on the Rule of Law and Sexual Violence in Conflict.]

We offer our sincere congratulations to the Office of the Prosecutor (OTP) and to the Victims’ Representative of the International Criminal Court (ICC) for the conviction of Dominic Ongwen for crimes against humanity and war crimes, including slavery crimes. We also congratulate the UN Team of Experts of the SRSG on the Rule of Law and Sexual Violence in Conflict for raising the critical comparison of the international crime of the slave trade and the transnational crime of trafficking in the special issue of the Journal of International Criminal Justice (JICJ). While we recognize these advancements, what do these two laudatory events have in common? Not enough.

The case of Dominic Ongwen, a subordinate to the infamous, and still uncaptured, Commander Joseph Kony, illustrates the quintessential criminal conduct inflicted by the Lord’s Resistance Army (LRA) in Uganda. Ongwen, a former child soldier who survived and proceeded through the LRA’s ranks, gradually became a battalion and brigade commander. Ongwen directly, indirectly, and jointly with and through the acts of others, as per Article 25(3)(a) of the Rome Statute, contributed to attacks against the civilian population, including murders, rapes, torture, conscription and use of children, and forced pregnancies. Ongwen also oversaw the enslavement of males and females whether children or adults. Enslavement of civilians initially allowed the LRA to control and loot territory, then to replenish the ranks of LRA fighters, especially with boy child soldiers. Enslavement furnished LRA fighters, including Ongwen, with pre-pubescent female domestic workers called ting tings (paras. 217, 2143). Enslavement also ensured the continual supply of older girls and women as “sex slaves.” Enslavement functioned as military supply or quartermaster operations to refurbish continually the LRA with enslaved individuals. The Ongwen judgment’s findings on enslavement are facially compelling. However, they underscore a legal incongruence that is embedded in the Rome Statute and in the current (mis)conceptualization of slavery crimes. Amid this celebratory moment for victims-survivors in Uganda, the Ongwen judgment provides an opportune moment to have a mature, nuanced legal conversation about the enslavement of children, the sexual content of enslavement, and the Rome Statute’s structural omissions of the slave trade as a war crime and crimes against humanity and of slavery as a war crime. Through an analysis of the Ongwen trial court’s decision, Part I of this post details the structural deficiencies of the Rome Statute regarding enslavement and the slave trade, while Part II addresses problems recurrent in the Rome Statute’s enslavement and sexual slavery provisions.

Concerning the absence of slave trade provisions in the Rome Statute, the Trial Chamber (pp. 738-47, 787-98), as submitted in the Prosecution’s closing brief (pp. 16, 35-6, 57, 62-4), amplified the systemic practices of LRA “abductions” and “distributions” of individuals into slavery. Adults and children routinely were abducted, kidnapped, or captured in raids by LRA fighters to become the porters of looted goods. The Trial Chamber characterized the abductions and distributions as acts of enslavement. The abduction represented a deprivation of liberty and was the initial exercise by Ongwen of powers attaching to the rights of ownership. Enslaved first as porters, those who survived their abductions and physical labor, were then “distributed.” The distributed enslaved children became boy-child soldiers, girl-child domestic workers or ting tings (paras. 2143, 2247-49, 2253-54), or female “sex slaves.” The Chamber found the ting tings to be “a sub-category of abducted girls in the LRA who were not sexually enslaved, but enslaved” (para. 3086).

Distribution and redistribution (often characterized as “giving”) practices evinced the continued exercise of any or all of the powers attaching to ownership rights by Ongwen under Article 7 (crimes against humanity) even though the Chamber examines at length the singularity of Ongwen’s authority to distribute enslaved children.

Our previous articles (here, here, and here) recognize that the 1926 Slavery Convention and the 1956 Supplementary Slavery Convention define the slave trade as the reduction of a person to slavery (i.e. abduction) or of the transporting, transferring or giving (i.e. distribution) of an enslaved person into another situation of enslavement. Accordingly, acts of slave trade precede acts of slavery and further enslavement, with the possible exception of children born into slavery. In the Team of Experts’ JICJ special issue’s article Missing in Action: The International Crime of the Slave Trade, we underscore that that abduction into slavery and the further distribution of enslaved persons, irrespective of age, are the archetypal, precursory acts of slave trading when committed with the intent to reduce a person to slavery. Moreover, slave trading is distinguished from slave owning. The slave trader is not required to exercise any powers of ownership or deprive persons of their liberty. The slave trader (only) must intend to reduce a person into slavery or transfer an enslaved person from one situation of slavery to another.

The Ongwen judgment’s welcomed, painstaking factual examination of the abduction and distribution of enslaved children conforms succinctly to the international crime of the slave trade. Ongwen committed acts of slave trading when he abducted the adults and children who first became porters and then were distributed as ting tings, female sex slaves, and boy-child soldiers. It would not be a question of his authority over or ownership of the slave, but only of his intent to further reduce them into slavery. However, the Rome Statute’s definition of enslavement, as a crime against humanity under Article 7, only recognizes such slave trading-like conduct when committed as an exercise of the powers attaching to rights of ownership. Thus, it confounds slavery and slave trading.

Moreover, the boy-child soldiers and the ting ting’s subjugation to enslavement underwent legal recharacterization when evidence was examined under Article 7 crimes against humanity provisions to when it was examined under Article 8 war crimes provisions. The Trial Chamber accepted the concurrence of analogous crimes against humanity and war crimes permissible (para. 2821). However, Article 8’s war crimes provisions are not analogous to enslavement under Article 7 and, therefore, cannot precisely redress these enslaved children (para. 2819). The girl-child ting tings could neither be characterized as slaves, nor were they sexual slaves, under Article 8. Unlike the “wives,” designated victims of sexual slavery both under the analogous provisions of Article 7 and Article 8, the ting tings were found (only) to be victims of enslavement under Article 7 (para. 3086). Under Article 8, they,together with the other women and girls, were victims of physical and mental torture (para. 3073, fn 7746). While torture is a serious war crime, torture was never intended to safeguard against the perpetration of slavery or the slave trade.

Likewise, the boys abducted and distributed—and, thus, enslaved under Article 7, crimes against humanity—are then recharacterized as (supposedly unenslaved) conscripted child soldiers under Article 8 (paras. 3101-3104). Any further examination of the exercise of powers of ownership, the sine  qua non of slavery, is  not extended to the deliberations on child soldiers as a war crime. The Rome Statute’s omission of the slave trade structurally impedes the fuller adjudication of abduction and distribution of the ting tings, the boy-child soldiers, and all persons ultimately enslaved under crimes against humanity. Structurally striking is the Rome Statute’s legal impediment to pursue slavery and the slave trade of the ting tings or the boy-child soldiers as a war crime under Article 8; regrettably, there is no analogous provision. 

As we have stated here and here, the omission of provisions for slavery and the slave trade as war crimes in the Rome Statute is most troubling given that the ICC’s is a permanent international judicial criminal mechanism. The absence of such prohibitions diverges from Additional Protocol II (Article 4(2)(d)) and from ICRC’s customary Rule 94 understanding of serious violations applicable to international and non-international armed conflicts. Even though the Rome Statute does not per se reflect customary international law, its Preamble affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished.” Lacking provisions for slavery and the slave trade, crimes that have obtained jus cogens status, seemingly betrays the Preamble’s pledge. Our research and analysis of the Rome Statute’s preparatory works has found these omissions to be inadvertent oversights, not willful deletions or omissions. Nevertheless, their absences lend insufficient latitude to the reasoning of the trial chamber that had to conform to these structural deficiencies of the Rome Statute. Consequently, the judges were constrained from applying a more apt legal characterization of slavery acts as ascribed to under international criminal law and international humanitarian law. The otherwise attentive yet truncated judicial reasoning about abductions and distribution in Ongwen risks influencing a weakened state practice and opinio juris when called to redress slavery and slave trade as international crimes.