Shattering Chain When the Sovereign Will Not: Responsibility to Protect and the Use of Military Intervention to Stop Slavery

• Author: Ethan A. Dazelle
• Position: University of Massachusetts School of Law
• Pages: 427-473

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

e author would like to extend his thanks to Professors Richard Peltz-Steele and

Jeremiah Ho for their insights and encouragement in writing this piece, to Professor

Francis Rudko for her instruction on the various human rights systems and public

international law generally, and to his long-time partner, Karen Abouhamad, for the

necessary prodding and poking to write down what he is always prattling on about.

SHATTERING CHAINS WHEN THE

SOVEREIGN WILL NOT

RESPONSIBILITY TO PROTECT AND THE USE OF MILITARY

INTERVENTION TO STOP SLAVERY

Ethan A. Dazelle

University of Massachusetts School of Law

E-mail: edazelle@umassd.edu

As an emerging international norm that recognizes genocide as sucient ground

for circumventing the fundamental principle of sovereignty, which generally for-

bids humanitarian intervention, the Responsibility to Protect (R2P) should and

does allow for the legal use of military intervention by the international commu-

nity whenever a sovereign State and practicing, tolerating, or failing to eliminate

slavery that is publicly and openly practiced. Intervention under these terms

against a legally-institutionalized form of slavery is not only fully compatible

with the present obligations of U.N. member States, including the permanent

members of the U.N. Security Council, but demanded under the U.N. Charter

Article 1, the Slavery Convention of 1926, the Universal Declaration of Human

Rights, and other sources of humanitarian obligation. us, R2P necessitates

a response that fully resolves the manifest failure of the sovereign. Such a re-

sponse would be a multilateral, Security Council-authorized operation centered

on reacting in force to free slaves and to dismantle the infrastructure of that

extraordinarily peculiar institution, followed immediately by reconstructing the

territory, and preventing further crimes against humanity.

Keywords: Humanitarian Intervention, Use of Force, Human Rights, Law of War,

Global Governance.

IV Indonesian Journal of International & Comparative Law 427-73 (Julyl 2017)

428

Dazelle

I. INTRODUCTION

Liberty is the power that we have over ourselves.1 Hugo Grotius

He said that raping me is his prayer to God. I said, “What you’re

doing to me is wrong…” And he said, “No, it’s allowed.”2 F

December 6, 2015, marked the 150th anniversary of the adoption of

the irteenth Amendment outlawing slavery in the United States.3

In Europe, the open practice of slavery and the slave trade had been

abolished even longer.4 e international community at large has con-

demned the existence of de jure slavery, the General Assembly of the

United Nations having approved the Convention for the Suppression

of the Trac in Persons and of the Exploitation of the Prostitution of

Others in 19495 and the amended Slavery Convention in 1959.6 Slavery

practiced systematically and tolerated openly by any member of the

international community is dicult to fathom in the face of such per-

vasive condemnation.

And yet slavery of this sort is not dead, however, and neither are

1. 1 E D  , W B C W P L 329

(1981). e quote is a more popular adaption from Grotius’s original phraseol-

ogy on liberty in his seminal work On the Law of War and Peace: “[T]he power

we have over ourselves, which is called liberty.” H G, O  L

 W  P 19 (Louise Loomis trans., New York, Walter J. Black 1949)

(1625).

2. Rukmini Callimachi, ISIS Enshrines a eology of Rape, N.Y. T (Aug. 14,

2015), http://www.nytimes.com/2015/08/14/world/middleeast/isis-enshrines-

a-theology-of-rape.html.

3. See C. R. S., T C   U S: A-

  I 30 (Government Printing Oce et al. eds., 2013).

An online version of the treatise is available at http://www.gpo.gov/fdsys/pkg/

GPO-CONAN-2013/pdf/GPO-CONAN-2013.pdf.

4. See e Struggle to End Slavery: A Timeline, D U. (Oct. 22, 2014), https://

community.dur.ac.uk/4schools.resources/Slavery4/timeline.htm [https://per-

ma.cc/R82F-TG46] (dates of full abolition: England 1833, France 1848, and

Spain 1811 only in continental Europe).

5. Convention for the Suppression of the Trac in Persons and of the Exploita-

tion of the Prostitution of Others, July 25, 1951, 96 U.N.T.S. 271.

6. Slavery Convention, Sept. 25, 1926, 60 L.N.T.S. 253.

429

Shattering Chains When the Sovereign Will Not

Dazelle

the victims who still nd themselves living in literal chains pressed

upon them by institutions. e Islamic State of Iraq and Syria (ISIS)

has implemented a bureaucratized form of slavery in which several

thousand women of the Yazidi racial minority are shipped, inspected,

registered, and sold or resold as property in an open market by their

“owners.”7 is is not unseen smuggling that cannot be traced, nor is

it practiced without knowledge by the States of Syria or Iraq, let alone

the international community at large. It is blatant, open, and widely

documented, with pamphlets establishing best practices and exchanges

made under contracts approved by a judicial system.8

Despite this stinging reminder, institutionalized slavery has receded

from the light of public scrutiny in the West, and exists outside the

public consciousness, believing it to have been banished more than a

century and a half ago. It also has not been eradicated as a defunct

feature of pre-modern states, despite what some political and economic

theories maintain. e tragedy of the Yazidi racial minority is empirical

evidence, a rarity in social science, that overt slavery supported or

tolerated by the State is possible, even in the Information Age. It is

capable of returning despite perhaps being the issue that garners the

most explicit international consensus as to its condemnation and the

general obligation to oppose it. A failure to oppose slavery of this

form with the absolute strongest means available is to surrender the

legitimacy of the international community’s responsibility to protect

the rights of all humanity.

For the international community, the strongest means of opposition

against slavery, or any crime against humanity, is military humanitarian

intervention (MHI). Under international law, MHI is the most

controversial response to crimes against humanity in the 21st century.9

Foregoing the feasibility of MHI, any policy of the U.N. member States,

especially the Security Council, purporting to use such intervention

should also articulate institutionalized slavery as a supreme failure

of the State it is practiced in. Such failure should be akin to genocide

7. Callimachi, supra note 2.

8. Id.

9. See I’ C’  I  S S, T R-

  P, ¶ 1.38 A/57/303, at 8 (Aug. 14, 2001) [hereinaer I’

C’, RP R].