Enslavement: Core Violations and Indicating Factors

To those who think, "Slavery must be associated with exaction of labour", above mentioned judgement is saying that it is not always the case. Exploitative labour condition can only be an indicating factor -- Factor Indicia -- for slavery.

In recent weeks, I have promoted, with my own limited resources, this Offshore Enslavement banner on Facebook, in an attempt to reach out to the general public. Some viewers have responded to this message of slavery. The majority appeared in shocked or outright disbelief; responding with "Bull sh*t", "crap", "nonsense" or put it as merely a "joke". This is understandable because the slavery in Australia has been outlawed since 1833 by King William IV, decades even before the federation. On the one hand, the word "slavery" carry much political currency that any mischievous social activists might have intentionally "misuse" to attract public attention; so therefore that was such caution by the public. In any case, most Australians are aware that the crime of slavery is serious and it will attract severe penalty.

Few other readers, however, reject the message on the ground that the offshore asylum-seekers "Do not have to work" and therefore there is no slavery. For them, there must be exaction of labour: the slave must work (so that the slave-owner could benefit).

Exaction of Labour: Factor Indicia

When we had a look at the ICC Rome Statute, Elements of Crime 7 (1) c, the Enslavement is defined as [#1]:

"The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.[fn, 11]"

The Footnote [11] of text said:

"It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children. "

The main thrust of ICC law is the perpetrator (slave-owner) exercising "any or all the powers attaching to the right of ownership" over enslaved person (i.e. slave). The perpetrator exercising such "powers attaching to the right of ownership" over an enslaved person will result the "deprivation of liberty". In other words, the perpetrator, behaving as if he/she owned a person, begin manipulating and enforcing that person, resulting the enslaved person has loss his/her freedom in a substantial manner.

Therefore, in slavery, the exaction of labour from a person is only possible when the perpetrator "legally owned that person (de jure)" or, by some other means, "being able to enforce the ownership on that person (de facto)". Therefore, the exaction of labour is NOT a primary requirement for the slavery. The exaction of labour is to be seen as one of the consequences of the perpetrator (slave-owner) exercising powers attaching to the right of ownership over a person (slave). Then again, by themselves, not all "1. harsh and exploitative labour condition" nor "2. restriction on the freedom of movement (detention)" can tantamount to slavery. There MUST be the instance(s) of the exercise of powers mentioned above to constitute slavery. These legal constraints have been cautioned by the judgement of High Court of Australia on the Case of Wei Tang, the owner of Club 417 Brothel in Melbourne (2008) [#2, #3]:

"It is important not to debase the currency of language, or to banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention. In particular it is important to recognise that harsh and exploitative conditions of labour do not of themselves amount to slavery. … An employer normally has some degree of control over the movements, or work environment, of an employee. Furthermore, geographical and other circumstances may limit an employee’s freedom of movement. Powers of control, in the context of an issue of slavery, are powers of the kind and degree that would attach to a right of ownership if such a right were legally possible, not powers of a kind that are no more than an incident of harsh employment, either generally or at a particular time or place."

To those who think, "Slavery must be associated with exaction of labour", above mentioned judgement is saying that it is not always the case. Exploitative labour condition can only be an indicating factor -- Factor Indicia -- for slavery. On our case of Manus/Nauru asylum-seekers, we may necessarily look for some indicators other than forced extraction of labour to identify the slavery.

Slavery laws at Home

The slavery laws in Australia is ways ahead of 1926 Slavery Convention. The Australian laws already has recognized the 'de facto' slavery. Excerpt from HCA judgement on Wei Tang (2008) [#2, #3]:

"... the reference to powers attaching to the right of ownership, which are exercised over a person in a condition described as slavery, is a reference to powers of such a nature and extent that they are attributes of effective (although not legal, for that is impossible) ownership."

The way I see it, the Australian Government indirectly exercising the powers of ownership over offshore asylum-seekers is fitting in well with this kind of 'de facto slavery' definition.

True to the crime against humanity, the Australian offshore enslavement is seen to be involving core violations of slavery laws, along with massive arrays of indicating factors.

Friends, I have gathered legal resources re: slavery for you to have a look and study. For HCA judgement on Queen vs. Tang, may I suggest you to read first, the case note written by Prof. Jean Allain of QUB.

Regards, U Ne Oo, NetIPR.
http://www.aus4iccwitness.org/node/64
[#1] ICC Rome Statute, Elements of Crime
http://www.aus4iccwitness.org/legal-resources/2011_icc-elements-of-crime...
[#2] Case Note on Queen v Tang, by Jean Allain
http://www.aus4iccwitness.org/legal-resources/20090101_case-note-on-quee...
[#3] The Queen vs. Tang, HCA judgement
http://www.aus4iccwitness.org/legal-resources/20080828_the-queen-vs-tang...