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5.2.2
Remedies and international enforcement measures
All relevant treaties coincide and prescribe an obligation not only to treat the objects
of all forms of slavery as victims, but also and—as far as possible—to rehabilitate
them in a way that is beneficial to such persons. This is facilitated by the inclusion of
either normative obligations in the relevant treaties, or through the establishment
of technical co-operation organisations, such as the ILO’s International Program on
the Elimination of Child Labour.
38
ECOSOC, too, is monitoring the issue closely and
has set up a Working Group on Contemporary Forms of Slavery, appointing a Special
Rapporteur on the Sale of Children, Child Prostitution and Child Pornography.
Slavery occupies the agenda of a multitude of other specialised agencies of the UN,
while a large number of NGOs, especially Anti-Slavery International, provide
comfort to victims and endeavour to inform international as well as national
authorities of the magnitude of this scourge.
39
States may lawfully extend their domestic criminal legislation to cover extra-
territorial offences of those slavery related practices described as offences under
international law, as long as prosecution of this kind does not conflict with a more
substantial jurisdiction asserted by other States, to which they must give priority. The
fact that slavery may be permitted
de facto
or
de jure
in the country of the accused is of
no relevance to the rights of the accused, as slavery is an international offence and an
erga omnes
obligation, the suppression of which is in the interest of every State.
As for direct international enforcement, Art 99 of UNCLOS obliges States to
prevent and punish transportation of slaves on vessels flying their flag, while Art
110(1)(b) of this Convention confers on warships of all nations a right of visit aboard
any vessel on the high seas where there is reasonable ground for suspecting that it is
engaged in the slave trade. There does not exist, however, a general right to seize
foreign slave trading vessels on the high seas, nor arrest its crew, as this prerogative
36
In
Doe v Unocal,
963 F Supp 880 (1997), a US District Court held that two American private corporations
engaged in commercial activities involving the use of forced labour in Burma could be found liable
under the 1789 Aliens Tort Claims Act, 18 USC § 1350.
37
UN Doc E/CN4/Sub2/1997/13 (11 July 1997), para 80 and UN Doc E/CN4/Sub2/1999/17 (20 July
1999), para 103.
38
MJ Dennis, ‘The ILO Convention on the Worst Forms of Child Labour’, 93
AJIL
(1999), 943, p 947.
39
With the passing of GA Res 46/122 (17 October 1991), a UN Voluntary Trust on Contemporary
Forms of Slavery was established with the aim of funding NGO participation in the meetings of the
Working Group and also to provide assistance to victims of slavery.
Chapter 5: Offences Against the Person
117
belongs only to the Flag State, in contrast to piracy.
40
The only available option is to
report such findings to the Flag State, which is thereafter under an obligation to
promptly initiate criminal proceedings.
A more appropriate means of deterring recalcitrant States from utilising or
tolerating the use of slave labour would be by barring the purchase of goods or
services from companies engaged in any such practice. Any scrutiny of this nature,
however, would be inconsistent with most countries’ obligations under the World
Trade Organisation (WTO) Agreement on Government Procurement, thus clearly
positing trading interests above fundamental human rights considerations. This
obligation under the WTO Agreement is indirectly incompatible and contrary to the
jus cogens
character of slavery and related institutions.
5.3
TORTURE AS A CRIME UNDER INTERNATIONAL LAW
The prohibition of torture in international law is regulated by instruments whose
primary purpose is the establishment of appropriate preventive and deterrent
mechanisms. This forms part of a wider obligation undertaken by States in the context
of human rights law.
41
Although these treaties envisage the application of criminal
laws against the perpetrator, the purpose of these instruments is to form the basis of
implementing domestic legislation and engage the responsibility of States parties.
It should not, therefore, be assumed that these treaties apply
mutatis mutandis
to
assess the criminal liability of the perpetrator under international law. The prohibition
of torture as laid down in human rights treaties entails a right from which no
derogation is permitted, as well as a norm of
jus cogens
. This is confirmed by the fact
that: it has been construed as such by domestic and international judicial bodies;
42
it
has not been denied by any country; and, in Europe, at least, States are not permitted
to return or extradite to another country persons that are in danger of being subjected
to torture, or practices that have the same effect as torture.
43
The
Furundzija
judgment
logically, therefore, concluded that international law not only prohibits torture, but
also ‘(i) the failure to adopt the national measures necessary for implementing the
prohibition and (ii) the maintenance in force or passage of laws which are contrary
to the prohibition’.
44
40
RR Churchill and AV Lowe,
The Law of the Sea,
1999, Manchester: Manchester UP, p 171.
41
ICCPR, Art 7.
42
Human Rights Committee, General Comment No 24 (4 November 1994), para 10;
Siderman de Blake
v Argentina,
965 F 2d 699 (1992)
cert denied; Argentina v De Blake,
507 US 1017;
Xuncax and Others v
Gramajo,
886 F Supp 162 (1995);
ICTY Prosecutor v Furundzija,
Judgment (10 December 1998), 38 ILM
(1999), 317, paras 153–57.
43
1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Art 3, 1465 UNTS 85; 1969 Inter-American Convention on Human Rights, Art 13(4);
Soering v UK,
Judgment (7 July 1989), EurCtHR, Ser A, No 161, para 91;
Chahal v UK,
Judgment (5
November 1996), EurCtHR, Ser A, No 22;
C v Australia,
Human Rights Committee, Com No 900/1999.
44
Furundzija,
Judgment (10 December 1998), para 148.
International Criminal Law
118
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