The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Abstract

Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of slavery have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how slavery, servitude and forced labour under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of slavery and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea.

1. Introduction

Since the UN Commission of Inquiry on Human Rights in Eritrea (“COIE”) found that the Eritrean Military/National Service Programme (“MNSP”)1 violates the prohibition of slavery (HRC 2016, para. 95), asylum courts from various jurisdictions in Europe have grappled with the question of whether the MNSP reaches the threshold of slavery under article 4(1) of the European Convention on Human Rights (“ECHR”), although for different purposes. While the COIE was mandated to investigate where violations of human rights in the country may amount to crimes against humanity under international criminal law (“ICL”), asylum courts assess evidence pertaining to individuals’ risk of being “persecuted” or their fear thereof within the meaning of article 1A(2) of the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”).2 It bears recalling that, at its core, the basis on which an individual qualifies for refugee status under the 1951 Refugee Convention is limited to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (article 1A(2)).3

The assessment of whether the MNSP gives rise to a real risk of exposure to treatment contrary to article 4 ECHR upon return formed one of the core issues in MST and Others (national service—risk categories) Eritrea CG [2016] UKUT 00443 (IAC) (“MST and Others”), the latest Country Guidance case on Eritrea promulgated by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”).4 In the UK, Country Guidance case-law is a relevant tool in refugee status determination procedures. These cases provide authoritative guidance on the situation in a particular country or region, which needs to be taken into account by asylum decision-makers until fresh evidence demonstrates that the country conditions have changed (Thomas 2008, pp. 516–20; Joshi 2020). The ECHR does not define any of the three types of proscribed conduct in its article 4 (i.e., slavery, servitude, and forced or compulsory labour), as such, the UTIAC had to look elsewhere in order to interpret these concepts and apply them to the evidence put forward before the Court.5 On the one hand, guided by the approach taken by the European Court of Human Rights (“ECtHR”), the UTIAC treated the International Labour Organization (“ILO”) framework as a relevant source of interpretation of article 4(2) ECHR (the right not to be subjected to forced or compulsory labour) (MST and Others, para. 404). On the other hand, the UTIAC refused the applicability of international criminal law notions to article 4(1) ECHR (the right not to be subjected to slavery or servitude), and therefore, to refugee status determination. According to the UTIAC, “despite more than one opportunity to do so, the ECtHR has not seen the [ICL] framework as providing guidance for the interpretation of [slavery in article 4(1) ECHR]” (MST and Others, para. 404). This was the basis for the resulting analytical framework from which ICL was excluded.

The UTIAC’s interpretation and application of article 4(1) ECHR and the legal reasoning behind it were replicated by the Federal Administrative Court (“FAC”), the Court of last resort for asylum matters in Switzerland, in the case E-5022/2017 of 10 July 2018. Unlike in the British context, the FAC does not provide country of origin guidance. However, their case-law likewise influences administrative authorities and the subsequent practice of the FAC when deciding on similar cases. In the same vein, although reaching a different conclusion,6 the FAC had recourse to the ILO framework as a means of determining the scope and nature of forced or compulsory labour in article 4(2) ECHR. In addition, in a similar manner to the British Court, the FAC did not consider ICL as a source of interpretation of slavery and servitude within the meaning of article 4(1) ECHR.

The article is structured in three sections. As a starting point, Section 2 provides background on the issue of slavery in the MNSP. It does this through the lens of the COIE, insofar as the COIE’s findings triggered the assessment of slavery within the MNSP in the case of MST and Others. In discussing the COIE’s approach to slavery in the context of the MNSP, Section 2 starts unpacking the meaning of the international law concept of “slavery.”7 The interpretation of article 4 ECHR and its application to the Eritrean context in cases MST and Others and E-5022/2017 are evaluated in Section 3. Rather than engaging with the author’s own analysis of evidence pertaining to slavery, servitude and forced labour within the MNSP, Section 3 focuses on discussing the assessment of the British and Swiss Courts to this respect.8 Importantly, both the UTIAC and the FAC identified relevant factors that are indications of slavery such as forced labour, lack of freedom of choice, measures taken to prevent escape, arbitrary detention and punishment, and the protracted duration of the MNSP. In addition, the UTIAC referred to core features of slavery, including the exercise of “control” over the Eritrean population and the impossibility of being “released” from the MNSP by the will of the people subject to it. However, the Courts failed to interpret this factual evidence as legally relevant in their cases at hand. Instead, both the UTIAC and the FAC laid down an unreasonable threshold to assess asylum applications of victims of slavery drawing on features such as de jure slavery and permanence. In particular, the UTIAC determined that slavery requires ownership of a person sanctioned by the legal system, and both the UTIAC and the FAC held that “permanence” (i.e., a lifelong situation) is of relevance for determining that a situation could classify as “servitude.”9 In consequence, neither the UTIAC nor the FAC recognised the circumstances pertaining to the MNSP as capable of amounting to slavery or servitude under article 4(1) ECHR.

After illustrating the position of the UTIAC and the FAC, Section 3 critically discusses the Courts’ approach to article 4(1) ECHR. In doing so, it demonstrates that their interpretation of article 4(1) ECHR is not in line with the contemporary interpretation of the international law concept of “slavery.” Nor it is aligned with the principles of treaty interpretation set forth in the Vienna Convention on the Law of Treaties, in particular the principle of systemic integration enshrined in article 31(3)(c), according to which any relevant norm of international law applicable between the parties to a treaty shall be taken into account when interpreting the text.10 On this basis, and in compliance with the evolutive interpretation of human rights norms, various international human rights law Courts, including the ECtHR, have recognised ICL as a source of interpretation of the concept of slavery under their respective human rights treaties.11 Indeed, unlike international human rights law (“IHRL”), ICL has developed a rich and consistent body of jurisprudence on the interpretation of the term slavery in international law, clarifying its application in light of present-day conditions.12 The critique above, however, is not applicable to the British and Swiss Courts’ assessment of article 4(2) ECHR, insofar as the UTIAC and the FAC had recourse to the ILO Conventions and other materials of the ILO Committee of Experts, the body mandated to examine states’ compliance with international labour standards (MST and Others, paras. 399–401; E-5022/2017, para. 6.1.5). In doing so, both the UTIAC and the FAC complied with the interpretative requirements of international law.

The analysis in Section 3 triggers a wider issue: the inter-relationship between international refugee law and other branches of international law, such as IHRL and ICL. Thus, Section 4 further attempts to clarify the role that these different yet inter-connected areas of international law play in giving meaning to the legal concept of “persecution” (or a “well-founded fear” thereof) in slavery cases. Whilst it is increasingly accepted that the provisions of the 1951 Refugee Convention, particularly article 1A(2), can be interpreted by reference to IHRL (see e.g., Burson and Cantor 2016), less attention has been paid to the role of other branches of international law in interpreting its terms. Section 4 argues that an assessment of “persecution” (or “serious harm”) contrary to article 4(1) ECHR should take into account the framework of the existing body of international law, in particular ICL developments, for the purposes of interpretation.13 This interpretative approach is supported by the International Court of Justice (“ICJ”), according to which, “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.”14

The aim of this article, however, is not restricted to a contribution to existing scholarly debates. Rather, it is the author’s hope that it prompts a proper interpretation and application of the refugee definition in the context of asylum applications of Eritreans, and victims of slavery in general, thus, having a positive impact on the lives of refugees.15

2. Slavery in Eritrea: The Findings of the UN Commission of Inquiry on Human Rights in Eritrea

In 2014, the Human Rights Council (HRC 2014) established the COIE to investigate alleged violations of IHRL in Eritrea, as outlined in the reports of the UN Special Rapporteur on the Situation of Human Rights in Eritrea.16 Following a year-long investigation, the COIE’s mandate was extended for a year, until June 2016, to investigate systematic, widespread and gross violations of human rights in the country with a view to ensuring full accountability, including where these violations may amount to crimes against humanity (HRC 2015b, para. 10). The COIE published two reports, in 2015 and 2016, respectively. In the words of Mekonnen (2016, p. 226), together with the reports of the Special Rapporteur, “the COIE’s reports can be considered the most authoritative on the situation of human rights in Eritrea and the violations perpetrated therein.”

In its report of 2016, where crimes against humanity were concerned, the COIE provided a section entitled “enslavement” where it analysed both the facts and the law (HRC 2016, paras. 191–235).17 At the outset, the COIE referred to the definition of “enslavement” under article 7(2)(c) of the 1998 Rome Statute of the International Criminal Court (“Rome Statute”), which defines enslavement “as the exercise of any or all of the powers attaching to the right of ownership over a person […]” (emphasis added). It is important and relevant to underscore that the provision in article 7(2)(c) of the Rome Statute adopted the definition of slavery in article 1(1) of the 1926 Slavery Convention, which reads: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (emphasis added).18 Regional human rights courts, including the ECtHR, have also endorsed the 1926 definition for the purpose of interpreting slavery under their own instruments.19 Bedsides ICL and IHRL, the 1926 definition of slavery is also present in international humanitarian law.20 Thus, it is considered to be the agreed definition of slavery in international law (Bunting and Quirk 2017, pp. 9–10; Allain and Hickey 2012).21

The COIE proceeded to consider relevant authoritative pronouncements of the Trial and Appeals Chambers of the International Criminal Tribunal for the former Yugoslavia (“ICTY”). The basis for this was that both Chambers had conducted a thorough review of the meaning and scope of the definition of slavery in the case of Kunarac. Notably, the 1993 Statute of the International Criminal Tribunal for the Former Yugoslavia does not define “enslavement.” Therefore, the ICTY’s Trial Chamber found necessary “to look to various sources that deal with the same or similar subject matter.”22 In particular, the Trial Chamber examined various international instruments and case-law pertaining to different branches of international law, namely international human rights law, international humanitarian law, and international criminal law; the preparatory works of the ECHR and the International Covenant on Civil and Political Rights (“ICCPR”); as well as the work of the International Law Commission.23 Having conducted such as an in-depth analysis, the Trial Chamber determined that “powers attaching to the right of ownership” should not be construed as limited to the crime of “chattel slavery” but that other indicia of ownership (that is, “powers attaching to the rights of ownership”) and the element of “control” should be considered (cited in HRC 2016, para. 192). The COIE rightly observed that the Appeals Chamber of the ICTY had subsequently upheld this verdict (HRC 2016, para. 193). The Appeals Chamber similarly sustained that:

the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as “chattel slavery” […] has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership.24

The Appeals Chamber held that “the law does not know of a right of ownership over a person,” emphasising that the definition of slavery in the 1926 Slavery Convention instead speaks of “a person over whom any or all of the powers attaching to the right of ownership are exercised.”25 By sustaining the Trial Chamber’s position, the ICTY’s Appeals Chamber did help clarify that the definition of slavery in article 1(1) of the 1926 Slavery Convention also covers de facto slavery, that is, situations where a person is not legally owned.

The COIE underlined that the ICTY jurisprudence was later cited approvingly by the International Criminal Court (“ICC”) in the Katanga case (HRC 2016, para. 193).26 In Katanga, the ICC’s Trial Chamber likewise held that the definition of “enslavement” is not restricted to traditional forms of “chattel slavery,” but instead is based on any or all of the powers attaching to the right of ownership. According to the ICC’s Trial Chamber, these powers must be construed as “the use, enjoyment, and disposal of a person […] by placing him or her in a situation of dependence with entails his or her deprivation of any form of autonomy” or liberty.27 In the Trial Chamber’s view, “deprivation of liberty” may “take various forms”; therefore, special consideration must be given to “the subjective nature of such deprivation, that is, the person’s perception of his or her situation as well as his or her reasonable fear.”28 To prove the exercise of any or all of the powers attaching to the right of ownership, the ICC’s Trial Chamber went on to enumerate relevant factors that shall be taken into account, which include:

[d]etention or captivity and their respective duration; restrictions on freedom to come and go or on any freedom of choice or movement; and, more generally, any measure taken to prevent or deter any attempt at escape. The use of threats, force or other forms of physical or mental coercion, the exaction of forced labour, the exertion of psychological pressure, the victim’s vulnerability and the socioeconomic conditions in which the power is exerted.29

These factors or indicia for the exercise of any or all of the “powers attaching to the right of ownership” have been replicated by the ICC’s Trial Chamber in subsequent cases, including in Bosco Ntaganda30 and Dominic Ongwen.31 Importantly, in the latter case, the ICC’s Trial Chamber noted that the definition of enslavement is satisfied “without any additional ill-treatment” than these factors or indicia.32 This pronouncement draws from Oswald Pohl et al., a case heard at the International Military Tribunal at Nuremberg in 1947,33 which also formed part of the COIE’s assessment. Where the law is concerned, the COIE (HRC 2016, para. 194) lastly cited the following passage from the Oswald Pohl et al. case:

[s]lavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint […] Involuntary servitude, even if tempered by humane treatment, is still slavery.34

Not only has the COIE deemed this excerpt of legal value, but it has also been cited with approval by other international courts.35

Having analysed the law, the COIE turned to assess how “powers attaching to the right of ownership” manifest themselves within the MNSP, and thus how the factual circumstances at hand may qualify as slavery (HRC 2016, paras. 205–22). Moving on to analyse the facts, the COIE identified various factors or indicia that reveal the exercise of “powers attaching to the right of ownership” over Eritrean citizens, or in other words, indications of slavery. In doing so, the COIE explained each of them by reference to the testimonies it had collected (HRC 2016, paras. 204–22).36 These factors include:

(a) the uncertain legal basis for the [MNSP]; (b) the arbitrary and open-ended duration of conscription, routinely for years beyond the 18 months provided for by the Proclamation of National Service (1995), No. 82/1995; (c) the involuntary nature of service beyond the 18 months provided for by law; (d) the use of forced labour, including domestic servitude, to benefit private, PFDJ-controlled and State-owned interests; (e) the limitations on freedom of movement; (f) the inhumane conditions, and the use of torture and sexual violence; (g) the extreme coercive measures to deter escape; (h) punishment for alleged attempts to desert military service, without an administrative or judicial proceeding; (i) the limitations on all forms of religious observance; and (j) the catastrophic impact of lengthy conscription and conditions on freedom of religion, choice, association and family life.37

(HRC 2016, para. 223)

Further, the COIE underlined that the victims of the MNSP in Eritrea, like the victims of enslavement in “Germany during the Second World War, in Cambodia during the Khmer Rouge regime, and in the former Yugoslavia and Sierra Leone in the 1990 […] are not bought and sold on an open market” (HRC 2016, para. 223).38

On the basis of the above, the COIE determined that there were reasonable grounds to believe that, within the context of the MNSP, Eritrean officials exercise “powers attaching to the right of ownership over Eritrean citizens” (HRC 2016, para. 234). That said, the COIE emphasised that the MNSP serves primarily to “boost the economic development of the nation, profit state-endorsed enterprises, and maintain control over the Eritrean population” (HRC 2016, para. 234, emphasis added).39 This latter factor was also mentioned throughout the 2016 COIE report which made several references to how the government exercises “control” over its population in a way that significantly restricts or deprives them of individual liberty.40 International courts worldwide have attained a certain level of consensus in considering that this type of “control” is of relevance for the purpose of recognising whether a particular phenomenon is a form of slavery.41 All things considered, the COIE concluded that the MNSP violates the 1926 Slavery Convention as well as the prohibition of slavery set forth in article 8 of the ICCPR (which mirrors article 4 ECHR) and article 5 of the African Charter on Human and People’s Rights (HRC 2016, para. 95).42 Lastly, the COIE found that, given the context in which enslavement is committed, that is, within the MNSP, it is part of the widespread or systematic attack committed against the Eritrean civilian population, which hence reaches the threshold of a crime against humanity (HRC 2016, para. 234–45).43

The reports of the COIE contributed to clarify how slavery manifests within the context of the MNSP. Subsequent to the COIE’s findings, various national courts in Europe have assessed the conditions under which the MNSP takes place and the nature and scope of the concept of slavery in article 4(1) ECHR for the purposes of determining refugee status. At this point, it shall be recalled that, lacking a specialised treaty body capable of providing a binding international interpretation of the provisions of the 1951 Refugee Convention, the refugee definition in article 1A(2) is subject to domestic judicial interpretation.44 The UTIAC, in the case of MST and Others, was the first Court to assess article 4(1) ECHR and its application to the context of the MNSP. The principal basis on which the appellants argued that the MNSP amounts to slavery was the conclusions of the 2016 COIE report to this effect (MST and Others, para. 402). MST and Others has been widely cited (sometimes with approval) by other asylum decision-makers and courts in Europe, thereby becoming a case of precedent value.45 Notably, two years after this ruling, the FAC followed, to a large extent, the UTIAC’s assessment of article 4 ECHR in its lead case E-5022/2017. This article now turns to the analysis of these two cases.

3. The Eritrean Military National Service Programme and the Interpretation and Application of Article 4 ECHR in Refugee Status Determination: The British and Swiss Perspective

3.1. The UK Upper Tribunal Immigration and Asylum Chamber’s Reasoning in MST and Others

In MST and Other (the UTIAC’s updated Country Guidance on Eritrea),46 the Court was asked by the appellants, jointly with UNHCR (which intervened as a third party in the case at hand), to consider whether the MNSP amounted to slavery, servitude, or forced or compulsory labour contrary to article 4 ECHR, which reads:47

(1)

No one shall be held in slavery or servitude.

(2)

No one shall be required to perform forced or compulsory labour.

(3)

For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a)

any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b)

any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c)

any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d)

any work or service which forms part of normal civic obligations.

In proposing this as a further country guidance issue, the appellants and UNHCR highlighted relevant findings on it made by the two reports of the COIE (MST and Others, para. 14).48 This proposal, together with the evidence placed before the Court, led the UTIAC to address in detail whether the MNSP gave rise to a real risk of exposure to treatment contrary to article 4 ECHR upon return (MST and Others, para. 371). In answering this question, the British Court deemed it necessary to have regard to the jurisprudence of the ECtHR pertaining to each of the three prohibitions listed in article 4 ECHR and their interrelationship (MST and Others, para. 378). Indeed, similar to the language in other international human rights instruments, including the Universal Declaration of Human Rights and the ICCPR,49 the ECHR does not define the prohibitions listed in article 4, nor does it elaborate on the content of slavery or servitude.50

Before turning to the analysis of article 4 ECHR, the UTIAC saw the need to give an overview of the general conditions in the MNSP (MST and Others, para. 284). In board terms, the UTIAC considered the conditions during the service, including “lack of adequate food, access to water, access to hygiene facilities and adequate accommodation,” as constituting inhuman or degrading treatment (MST and Others, para. 286). The UTIAC also emphasised that punishment is not “reserved” to political opponents, but instead it held that any evasion of MNSP for Eritreans inside the country “carries a real risk [of] treatment which amounts to persecution as well as serious harm” (MST and Others, para. 283, emphasis added). The UTIAC also took into account evidence that “[t]those caught on the border trying to flee are almost always subjected to periods of arbitrary detention” (MST and Others, para. 281, emphasis added).

Whereas this article centers on article 4(1), this Section also examines the UTIAC’s findings on forced or compulsory labour. This examination is warranted insofar as, while assessing the legal parameters of forced labour and its application to the MNSP context, the British Court described factual circumstances that may qualify as servitude or slavery. However, as will be discussed below, the UTIAC failed to conduct a closer assessment of these factors. Furthermore, it will be recalled that a situation of forced labour and slavery are not mutually exclusive. In fact, as shown above, forced labour may be indicative of the exercise of powers attaching to the right of ownership over a person, and thus, of a situation of slavery.

3.1.1. Article 4(1) ECHR

At the outset, the UTIAC sought to interpret the concepts of slavery and servitude within the meaning of article 4(1) ECHR. Notably, the UTIAC did not regard the ICL framework as providing guidance for the interpretation of article 4(1) ECHR. The legal basis for this approach was that, in the UTIAC’s view, this was the ECtHR’s position (MST and Others, para. 404). However, as will be discussed in Section 3.3, the UTIAC did not engage rigorously with the ECtHR’s jurisprudence in order to substantiate its approach. The Court also reasoned that the COIE’s legal analysis of slavery was conducted:

in the context of deciding whether the [MNSP] amounts to enslavement as a crime against humanity—as defined by Article 7 of the Rome Statute or by equivalent customary international law. Correspondingly, the jurisprudence it bases itself on is that of the international criminal tribunals such as the ICTY and the ICC […] but […] for our purposes we cannot treat its analysis as being based directly on IHRL—either Article 8 of the ICCPR or its European equivalent in Article 4 of the ECHR.51

(MST and Others, para. 404)

In light of this interpretative approach, the UTIAC did not recognise that the MNSP constitutes servitude or slavery under the terms of article 4(1) ECHR (MST and Others, para. 429). The analysis now turns to the UTIAC’s interpretation of servitude and slavery more closely.

Where servitude is concerned, the UTIAC noted that the MNSP (at least in the context of assessing it as a “whole”) cannot be considered to constitute “anything comparable to the paradigm identified [by the ECtHR] in Siliadin of ‘the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition’” (MST and Others, para. 405). Siliadin is the first case in which the ECtHR found a breach of the prohibition of servitude under article 4(1) ECHR.52 The UTIAC observed that:

[e]ven those who are required to perform lengthy national service cannot sensibly be described as being compelled to live permanently on government property and whilst the possibilities for exemption or de facto demobilisation are limited, it cannot be said that there is an impossibility to alter one’s condition.

(MST and Others, para. 405, emphasis in the original)

In doing so, the British Court referred to various arguments made by the respondent, the appellants, and UNHCR pointing out that the reported conditions within the MNSP were “extremely variable” (MST and Others, para. 405).53 In relation to the duration, all sides agreed that the MNSP was “indefinite and open-ended”; however, there was disagreement as to whether this meant that it resulted in most Eritreans performing the MNSP permanently or for very prolonged periods (MST and Others, para. 288 as cited in para. 405). While the respondent’s position was that there was a real prospect of discharge, this was in stark contrast to the position of the appellants and UNHCR. On this point, the UTIAC relied on the respondent’s evidence that discharge from the MNSP may be possible, for instance, by paying bribes (MST and Others, para. 405 citing para. 267).54 Regarding the possibilities of being released or discharged from the MNSP, the UTIAC also referred to two quotations of the 2016 COIE report that pointed out that release from MNSP (which, in the words of the COIE, is “rare”) is mostly by corruption (MST and Others, para. 301). Slavery and corruption, however, are not mutually exclusive. The representative of the British government in the negotiations leading to the 1926 Slavery Convention highlighted that “bribery and corruption [are] invariably attach[ed] themselves to slavery” (League of Nations 1925, p. 5).

Additionally, the UTIAC omitted any reference to whether paying bribes to a government that is (allegedly) committing crimes against humanity might give rise to a threat to peace.55 Failing to address this in its assessment, the UTIAC concluded that the MNSP “is not necessarily an unavoidable experience for everyone in Eritrea” (MST and Others, para. 294).56 Nevertheless, later in the judgment, the Court nuanced this approach. The UTIAC clarified that discharge or release from the MNSP is “arbitrary” insofar as “it is at the whim of a commander or employer” (MST and Others, para. 301, emphasis added).57 It also explained that the MNSP is to be considered “indefinite” to the extent that the period of service that a person starting the MNSP will be expected to complete “is not known” (MST and Others, para. 304). The British Court, however, did not base its legal analysis of servitude (or slavery) on these findings, but instead over-relied on the respondent’s evidence discussed above to conclude that the MNSP does not constitute servitude.

Turning to the assessment of slavery in article 4(1) ECHR, the UTIAC simply referred to a passage from the Siliadin case as cited by the ECtHR in Rantsev (the following case after Siliadin in which the ECtHR pronounced on the scope of article 4 ECHR).58 In Rantsev, the ECtHR interpreted the slavery definition in the 1926 Slavery Convention as requiring “the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an ‘object’“ (MST and Others, para. 378, emphasis added). Notably, although the UTIAC only interpreted the concept of slavery in light of this passage, it reached a different interpretation without any analysis to this effect:

the obligation to perform [MNSP] can[not] sensibly be described as amounting to the exercise by the Eritrean state of a genuine right of legal ownership reducing those called up to the status of an “object.” Eritrean law does not create such a legal ownership.

(MST and Others, para. 405, emphasis added)

In the UTIAC’s view, at least in the case in question, ownership of a person prescribed by law is determinative for classifying a situation as slavery within the scope of article 4(1) ECHR. While the UTIAC rejected the applicability of ICL to article 4(1) ECHR, it warned that it had followed the ICL-based interpretation of slavery in the 2016 COIE report. However, the UTIAC did highlight that it was not persuaded by it (MST and Others, para. 406). It reasoned that at least three of the ten indicia (i.e., factors pointing to the exercise of powers attaching to the right of ownership) that the COIE had identified in its 2016 report, namely “inhumane conditions,” “torture and killing,” and “impact on family life,” could only be applied to civilian national service with “considerable difficulty” (MST and Others, para. 407).59 In building on this argument, the UTIAC made scarce references to the nature of the civilian service. It simply cited a couple of excerpts from the COIE reports which showed that, in some instances, the conditions for conscripts in the civil service may be more favourable than those for conscripts in the army. This led the British Court to assume that the COIE may have relied only on the indicium or factor of “lack of freedom of choice” for considering the civil national service also as slavery (MST and Others, para. 409). The UTIAC went on to state that, to the Court’s knowledge:

the lack of freedom of choice (even when coupled with features such as restricted freedom of movement, occasional disproportionate punishment for absenteeism, etc.), is not sufficient to constitute […] a violation of the [a]rticle 4(1) prohibition against slavery.

(MST and Others, para. 410)

In essence, while holding that the MNSP does not constitute slavery (MST and Others, para. 429), the UTIAC did not explicitly contest nor endorse the COIE’s finding of slavery (or enslavement) within the military service. Instead, it opted for only challenging (albeit superficially) that the reported conditions in the civil service amount to slavery.60 Furthermore, the UTIAC failed to clarify if conscripts who are unable to pay bribes to the Eritrean government or the concerned officials are actually held in slavery.

Lastly, the UTIAC did contend that the indicia spelled out by the COIE reached the threshold of a crime against humanity. In particular, the UTIAC noted that what was missing from the COIE’s analysis was any concrete basis for considering that each of the indicia is such that “quantitatively and qualitatively” can cross the threshold of “widespread and systematic” necessary for a phenomenon to constitute a crime against humanity (MST and Others, para. 412, emphasis added).61 However, as will be discussed below, this assessment is irrelevant for determining whether a situation, in this case the MNSP, classifies as slavery.

3.1.2. Article 4(2) ECHR

In light of the considerations above, the UTIAC directed its attention to the assessment of forced or compulsory labour under article 4(2) ECHR. The British Court began its reasoning by emphasising the ILO’s findings in this respect:

[o]n a number of occasions the various organs of the ILO, including its Committee of Experts, have found that the [MNSP] constitutes forced or compulsory labour contrary to the ILO Conventions, in particular the [1930] Forced Labour Convention […] ratified by Eritrea in 2000.

(MST and Others, para. 399)

In the language of the Convention Concerning Forced or Compulsory Labour No. 29 (“1930 Forced Labour Convention”), force or compulsory labour is “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (article 2(1)).62 While the UTIAC noted that the terms of the prohibition on forced labour set out in the 1930 Forced Labour Convention do not precisely correspond to those set out in article 4(2) ECHR, it underlined that the ECtHR has treated that definition as a relevant source of interpretation and as a starting point for the interpretation of article 4(2) ECHR.63 In consequence, the UTIAC considered the ILO assessments of particular import (MST and Others, para. 399).64

The UTIAC went on to assess whether the facts of the case, including the MNSP, did fall within the exemptions or exclusions to the prohibition of forced or compulsory labour under the various subparagraphs of article 4(3) ECHR.65 In its assessment, the British Court considered conclusive various arguments made by the ILO organs to this effect, whereby they had already rejected the claim (often made by Eritrean authorities) that the MNSP benefits from the exclusion criterion in 4(3) ECHR (MST and Others, paras. 400–1).66 Importantly, before conducting its own assessment, the UTIAC warned that the ILO’s Committee of Experts had recognised that Eritrean citizens “are subject to [MNSP] and forced labour that effectively abuse, exploit and enslave them for indefinite periods of time” (MST and Others, para. 271, emphasis added).67 The UTIAC, however, did not unpack the meaning of this sentence, which in essence describes the MNSP as enslavement (or slavery).

The UTIAC first centred on the exception set forth in article 4(3)(b) ECHR, which excludes or exempts from the category of forced or compulsory labour “any service of a military character.” In relation to this exemption, the UTIAC drew on various considerations made by the ILO, according to which work exacted from conscripts as part of the MNSP is not of purely military character, to the extent that it is also used for ordinary public works and in the private sector. As such, the MNSP was considered to “go well beyond” article 1(b) of the 1957 Abolition of Forced Labour Convention, which prohibits the exaction of forced or compulsory labour as a method of “mobilising” and the use of “labour for the purposes of economic development” (MST and Others, para. 401). In its own assessment of article 4(3)(b), the UTIAC underlined two respects in which the MNSP falls out this exclusion. The first one relates to the Eritrean domestic legal framework, which endorses the use of compulsory labour for the purposes of the country’s economic development.68 It followed the COIE’s findings, which showed that the scope and type of work that may be imposed during the MNSP is not of military character only (MST and Others, para. 419).69 The UTIAC also paid attention to the findings of the COIE that portrayed a scenario where individuals performing civilian national service were also prevented “from pursuing their own occupations and professions” (MST and Others, para. 420).70 In doing so, the UTIAC considered this service as falling within the description of forced labour in Van Der Mussele (which mirrors the definition of forced labour in article 2(1) of the 1930 Forced Labour Convention): “work ‘exacted under the menace of any penalty’ and for which the person concerned ‘has not offered himself voluntarily’” (MST and Others, para. 422).71

Regarding article 4(2)(d), which excludes or exempt from the scope of forced labour “any work or service which forms part of normal civic obligations,” the interpretation of the ILO organs was also of relevance for the UTIAC. According to the ILO, the range and extent of work that recruits are required to perform cannot be describe as “normal civic obligations” (MST and Others, para. 420, emphasis in the original). This argument, as stated by the UTIAC, was reinforced by the COIE’s findings, according to which the MNSP “is a way of controlling the population” (MST and Others, para. 423, emphasis added). Lastly, in relation to the exemption based on provision of emergency services under article 4(3)(c) ECHR, the UTIAC endorsed the following ILO’s claim: the MNSP cannot benefit from this exemption or exclusion insofar as it has been in force for two decades, and therefore cannot be considered to be a “genuine” case of emergency (MST and Others, paras. 424 and 401).72

In light of the above considerations, the UTIAC ruled that the MNSP, as a whole, does not constitute slavery or servitude under article 4(1) ECHR, but it does constitute forced or compulsory labour contrary to article 4(2) ECHR, which is not a type permitted under article 4(3) (MST and Others, para. 429).

3.1.3. Refugee Status Determination

Having assessed which of the three types of conduct proscribed in article 4 ECHR apply to the MNSP, the UTIAC turned briefly to consider the threshold test to be applied to article 4(2), namely the test of “flagrant breach” or “mere breach.”73 Yet, it should be stated that the British Court was not especially concerned about delving much into this issue due to the factual overlap between articles 3 and 4 ECHR (MST and Others, paras. 376, 395 and 426). While the UTIAC’s judgment focused on article 4 ECHR, the British Court held that to the extent that the MNSP breaches article 4(2) ECHR, it is also likely to constitute a breach of article 3 ECHR (MST and Others, paras. 427 and 429). The Court did not deem it necessary to consider article 3 separately, but instead assimilated the right not to be subjected to forced or compulsory labour (and to slavery or servitude) in article 4 ECHR to the right not to be subjected to torture and inhuman or degrading treatment or punishment enshrined in article 3 ECHR (MST and Others, paras. 395 and 427). This interpretation is grounded on the case of Ullah (before the the Appellate Committee of the UK House of Lords), in which Lord Bingham, in light of the present-day conditions, considered that a case of forced or compulsory labour will also fall within the scope of article 3 ECHR (MST and Others, para. 376).74 In a contradictory manner, the UTIAC expanded the scope of application of article 4(2) ECHR to make forced labour synonymous with ill-treatment, while narrowing the textual boundaries of slavery and servitude under article 4(1) ECHR to make it only applicable to permanent and de jure slavery.

Elaborating upon this, the UTIAC explained that, “although derogable, article 4(2) ECHR does not identify permissible limitations but only exceptions” (MST and Others, para. 395). The UTIAC based its argument on the Strasbourg jurisprudence, which according to the British Court, has not applied a “flagrant denial” test in extraterritorial cases pertaining to article 4 ECHR (MST and Others, para. 393). While the UTIAC did not explicitly mention it, the ECtHR had indeed sustained in Siliadin and later in Rantsev that article 4 ECHR, including paragraph 2 (the right not to be subjected to forced or compulsory labour), “makes no provision for exceptions and no derogation from it is permissible under [article 15(2) ECHR] even in the event of a public emergency threatening the life of the nation.”75

The UTIAC clarified that the lack of freedom of choice is sufficient to give rise to a “breach” of article 4(2) ECHR, and that “the open-ended duration” of the MNSP, which “appears to be prolonged,” gives rise to a “real risk” of a violation of the right to be protected against forced or compulsory labour (MST and Others, para. 425). It followed that the MNSP amounts to a “flagrant breach” of the right to be protected against forced or compulsory labour since, in the UTIAC’s view, the MNSP “effectively extinguishes that right” (MST and Others, para. 425). The UTIAC concluded that people of or approaching draft age who are perceived upon return as draft evaders or deserters “will face a real risk of persecution, serious harm or ill-treatment contrary to [a]rticle 3 or 4 of the ECHR,” even if such individuals “may avoid punishment in the form of detention and ill-treatment” (MST and Others, Conclusion No. 7, p. 157, emphasis added).76 Furthermore, the British Court held that the same legal reasoning applies for those who have exited Eritrea lawfully but who nonetheless “may on forcible return face having to resume or commence [MNSP]” (MST and Others, Conclusion No. 9, p. 158).77

Lastly, the Court glancingly explained the nexus between “persecution” and the 1951 Refugee Convention grounds set forth in article 1A(2). It held that a real risk of persecution in the context of performance of MNSP is highly likely to be on the ground of imputed political opinion (MST and Others, para. 430).78 In support of this view, the UTIAC referred to a statement made by the Eritrean government, according to which demobilisation of conscripts “would violate the principle that no one is exempt from patriotic duties” (MST and Others, para. 430). The UTIAC, however, overlooked in its assessment the Convention ground of “membership of a particular social group.” Given the influence of MST and Others in other jurisdictions, it would have been useful for the UTIAC to include considerations of the applicability of this ground to asylum applications of persons of (or approaching) draft age. Age is in fact an immutable characteristic that could define a social group (UNHCR 2002, para. 6; Rikhof and Geerts 2019, pp. 9–10), regardless of the size of such group (UNHCR 2002, para. 18). Evaders and deserters, or those perceive as such, would also fall under the particular social group category.79

3.2. The Swiss Federal Administrative Court’s Reasoning in E-5022/2017

The FAC, in the case E-5022/2017, assessed the barriers to the removal of an Eritrean applicant.80 In so doing, the FAC noted that the same standard of proof applies as in refugee status determination (E-5022/2017, para. 6.1.3). The FAC, in particular, examined the material questions of whether conscription into the MNSP would imply a real risk of breach of the prohibition of slavery within the meaning of article 4(1) ECHR or a flagrant breach of the prohibition of forced labour under article 4(2) ECHR. These questions are analysed in the following sections.

3.2.1. Article 4(1) ECHR

The FAC first referred to the definition of slavery in article 1(1) of the 1926 Slavery Convention. Notably, immediately after doing so, the Swiss Court added between parentheses a reference to article 7(2) of the Rome Statute, which in turn suggests that, for the FAC, these definitions (indeed) mirror each other. The FAC, however, did not exactly use the same language of the definition of slavery in the 1926 Slavery Convention (or in the Rome Statute). It slightly reworded it to read: “slavery exists where powers linked with ownership are exercised towards a person” (E-5022/2017, para. 6.1.4).81 This already points to the Court’s lack of predisposition to properly engage with the 1926 slavery definition.82 The FAC further cited Rantsev thereby adding to the definition of slavery the reduction of the concerned individual to an “object” (E-5022/2017, para. 6.1.3). On a positive note, the FAC, unlike the British Court, did not interpret slavery as requiring “legal ownership” over a person. Although it alluded to the Rome Statute, the FAC did not consider case-law of the ICC or other international criminal courts as source of interpretation of the concept of slavery in article 4(1) ECHR. Despite this reluctance by the Court to interpret the definition of slavery in line with ICL developments, the FAC did not raise any definitional question and in this sense the slavery definition in the 1926 Slavery Convention (and in the Rome Statute) was not contested. However, it discontinued its engagement with the international law definition of slavery, and instead focused on the concept of servitude.

Similar to the legal analysis of servitude in MST and Others, the FAC interpreted that servitude required the obligation to live in another person’s property and the impossibility of changing this condition (E-5022/2017, para. 6.1.4).83 It did so by citing the Siliadin case. However, unlike the UTIAC, the FAC also considered C.N. and V., a case of 2012 whereby the ECtHR clarified the distinction between forced labour and servitude. Building upon its previous legal reasoning in Siliadin and Rantsev, in C.N. and V., the ECtHR held that:

the fundamental distinguishing feature between servitude and forced or compulsory labour within the meaning of [a]rticle 4 of the [ECHR] lies in the victim’s feeling that their condition is permanent and that the situation is unlikely to change.’84

The ECtHR noted that one of the applicants “was convinced […] that she could not free herself from their hold without placing herself in an illegal situation” (emphasis added).85 It observed that this feeling was strengthened by certain incidents, including inter alia her hospitalisation under the name of one of her cousins and the fact that she did not attend school nor received any training which, in the words of the Strasbourg Court, “might have given her any hope of ever finding paid work outside the home […]”86 In its assessment, the ECtHR also took into consideration other relevant factual circumstances, including the fact that the applicant did not enjoy any day off or leisure activities and that she was not permitted to meet people outside the house. Based on this factual analysis, the ECtHR held that the applicant “had the feeling that her condition was permanent and could not change, especially as it lasted four years” (emphasis added).87 The Strasburg Court thus concluded that the applicant “was effectively kept in a state of servitude” within the meaning of article 4(1) ECHR.88

Pointing to the above case, the FAC observed that the distinctive feature of servitude that makes it different from forced or compulsory labour lies in the subjective perception of the concerned individual that his or her situation is unchangeable and permanent. It followed that this feeling or perception has to be based on objective reasons (E-5022/2017, para. 6.1.3).89 However, the FAC discounted this thinking to over-rely on MST and Other’s legal analysis in this respect. As a consequence, the FAC did not inquire into the feeling of the applicant and the grounds on which such felling may be based to assess whether the circumstances in the present case were capable of amounting to servitude or slavery.

The FAC then turned to consider, albeit superficially, the ten indicia of “powers attaching to the right of ownership” that were identified by the COIE90 (which, as discussed in Section 3.1.1, also formed part of the UTIAC’s considerations in MST and Others). The Swiss Court acknowledged that the assessment of these indicia of ownership over Eritrean conscripts within the context of the MNSP had led the COIE to find a breach of the prohibition of slavery under various international treaties. Nevertheless, the FAC attached more significance to the UTIAC’s criticism to the COIE’s findings in that respect. Applying this criterion, the FAC concluded that the MNSP cannot be considered as “an exercise of the powers of ownership of the Eritrean state,” holding that even if it has no formally limited duration, the Court “cannot assume that this is a permanent condition” (E-5022/2017, para. 6.1.4, emphasis added).91

The lack of engagement of the FAC with article 4 ECHR also manifests in the apparent overlap between servitude and slavery. The above conclusion, and its foregoing analysis, are a blend of the 1926 slavery definition and the definition of servitude developed by the ECtHR. It appears that, for the FAC, servitude equals slavery. However, the Swiss Court failed to set out a clear reasoning of its understanding of the meaning of servitude and slavery under article 4(1) ECHR in order to substantiate such overlap between the two concepts. Most importantly, despite having considered certain elements of the C.N. and V. case as a source of interpretation of the concept of servitude, the FAC’s conclusion is strikingly similar to that in MST and Others, and thus departs from that of the ECtHR. As stated above, the ECtHR in C.N. and V. (contrary to the UTIAC’s approach in MST and Others) did not speak of permanence, but of the victim’s feeling that a “situation is unlikely to change.”92

Lastly, the FAC noted that the COIE’s argument pertaining to enslavement cannot be used to interpret slavery under article 4 ECHR. The legal basis for this claim was that the UTIAC, in MST and Others, had rejected that enslavement in the MNSP context reaches the threshold of a crime against humanity. However, as will be discussed in Section 3.3, such threshold is not of relevance for determining whether a situation classifies or not as slavery (E-5022/2017, para. 6.1.4).93

On the basis of a cursory examination of the facts of the case and an over-reliance on the findings of MST and Others, the FAC ruled that the MNSP cannot be considered to constitute slavery nor servitude within the meaning of article 4(1) ECHR (E-5022/2017, para. 6.1.4).94

3.2.2. Article 4(2) ECHR

The assessment of forced or compulsory labour by the FAC in the case at hand is also akin to that in MST and Others. The FAC similarly referred to the ECtHR jurisprudence whereby the Strasbourg Court had endorsed the ILO’s definition of forced labour for the purposes of interpreting article 4(2) ECHR (E-5022/2017, para. 6.1.5). In addition, the FAC analysed separately each of the exemptions or exclusions listed under article 4(3) ECHR. In doing so, the Swiss Court highlighted that, according to the ECtHR, these exemptions or exclusions must be interpreted restrictively (E-5022/2017, para. 6.1.5.1).

In considering the factual circumstances under the MNSP, the FAC underlined that “denial” and desertion from the MNSP are rigorously punished, and identified that the MNSP also includes civil duties, even during the initial 6-month period of military training. These factors lead the FAC to consider the MNSP as falling outside the exclusion under article 4(3)(b) ECHR, which exempts from forced or compulsory labour “any service of a military character” (E-5022/2017, para. 6.1.5.1). To reinforce its position, the FAC emphasised that this assessment is congruent with that of the UTIAC, which, in addition, underscored that Eritrean domestic laws stipulate that the MNSP is in place for the purposes of the country’s economic development (E-5022/2017, para. 6.1.5.1).95 Similar to the legal reasoning in MST and Others, the FAC noted that for a state of emergency to qualify for article 4(3)(c) ECHR, it has to last for a limited period of time. In a similar manner as the UTIAC, the FAC endorsed the ILO’s position in this respect, and held that the MNSP cannot be considered to fall under the exclusion in article 4(3)(c), insofar as the MNSP has lasted for many years (E-5022/2017, para. 6.1.5.1). With regard to the exemption in article 4(2)(d), the Swiss Court referred to article 1(b) of the 1957 Abolition of Forced Labour Convention. In doing so, the FAC noted that, in its view, service for the “common” good can only be exacted if the duration is “proportionate,” arguing that the MNSP in its current form cannot be considered to amount to a “civic obligation” within the meaning of article 4(2)(d) (E-5022/2017, para. 6.1.5.1). The foregoing analysis gave the basis for the FAC to find that the MNSP falls within the scope of article 4(2) EHCR.

3.2.3. Refugee Status Determination

Up to this point, the FAC’s assessment developed along similar lines to that of the UTIAC in MST and Others. However, the Swiss Court favored a more “convenient” interpretation to undermine international protection. In disagreement with the British Court, the FAC did not consider the MNSP capable of amounting to a flagrant breach of the prohibition of forced or compulsory labour. The FAC noted that a flagrant breach of the right to be protected against forced or compulsory labour is hardly possible without a simultaneous breach of article 3 ECHR (E-5022/2017, para. 6.1.2). The FAC underlined that, unlike the prohibition of slavery, the prohibition of forced or compulsory labour enshrined in article 4(2) ECHR is a derogable right under article 15 ECHR. In doing so, the FAC contended the UTIAC’s claim that forced labour is capable of being cast in article 3 ECHR terms. However, it bears repeating that, in Rantsev (para. 283) and Siliadin (para. 112), the ECtHR, without assimilating forced labour to ill-treatment, sustained that article 4 ECHR “makes no provision for exceptions and no derogation from it is permissible under Article 15.” While the FAC engaged with the Rantsev and Siliadin cases, it disregarded the latter consideration made by the ECtHR in both cases.96 In doing so, the FAC held that removal will only be considered inadmissible if the concerned applicant establishes a real risk of a flagrant breach of the prohibition in article 4(2) ECHR (E-5022/2017, para. 6.1.2). Therefore, according to the FAC, unless another right (beyond the right not to be subjected to forced or compulsory labour) is at stake, it would be difficult to establish a non-removal obligation.

In light of the foregoing analysis, the FAC, in contrast to MST and Others, did not find that the MNSP is capable of amounting in itself to “persecution” or its equivalent under the Swiss Asylum Act, “disadvantage” (E-5022/2017, para. 6.1.5.2).97 The FAC argued that “disadvantage” (in the form of forced labour contrary to article 4(2) ECHR) has to be understood in the context of the “Eritrean socialist economic system and the government doctrine of ‘self-reliance’ according to which the Eritrean citizens should create Eritrean’s futures by themselves, even if under great deprivation, independent from international aid, foreign countries and investors”(E-5022/2017, para. 6.1.5.2). First, this claim is factually wrong. The government of Eritrea has received aid from the European Union as part of the European Development Fund (European Commission 2015) and most recently, as part of the Emergency Trust Fund for Africa. Foreign private companies also operate in the country, predominantly in the mining sector, which provide the government direct economic benefits.98 Secondly, this claim is not consistent with the FAC’s own legal assessment. In fact, the FAC had already (rightly) ruled that the MNSP falls outside the exclusion in article 4(3)(b) ECHR to the extent that the use of labour within the MNSP is exerted for the purposes of the country’s economic development (E-5022/2017, para. 6.1.5.1).

The FAC concluded that an enforced removal is not “unreasonable” for a person who is likely to be conscripted into the MNSP upon their return in Eritrea, unless the concerned individual establishes any further reason (beyond his or her imminent conscription) that could be qualified as “unreasonable” (E-5022/2017, para. 6.2.5),99 and thus as “disadvantage.”

3.3. A Critical Analysis of the Interpretation of Article 4(1) ECHR

The UTIAC’s assessment in MST and Others made it clear that, for the British Court, the key elements of the concepts in article 4(1) ECHR are “legal ownership” and “permanence.” In other words, that the “slaveholder” must legally own the “slave” and that the duration of the relationship between the “slave” and the “slaveholder” must be permanent.100 By making reference to MST and Others, the FAC, in the case E-5022/2017, similarly assimilated the issue “permanence” to the concept of slavery.101 In addition to these two features, both Courts appear to narrow down the material scope of article 4(1) ECHR to require a situation of slavery to reach the threshold of a crime against humanity.102 In legal terms, as will be discussed below, the manner in which the UTIAC and the FAC engages with article 4(1) ECHR raises fundamental concerns.

3.3.1. Does the Definition of Slavery Require a “Genuine Right of Legal Ownership”?

In MST and Others, the first of the key elements of what constitutes slavery is de jure ownership. At this point of the discussion, it is important to remember that slavery, as defined in the 1926 Slavery Convention (and as later reproduced by the Rome Statute), is “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” It would appear, from this language, that slavery requires “legal ownership,” that is, that it can only exist if ownership over a person is present. However, this interpretation departs normatively from how the definition of slavery is interpreted and applied by international courts, which have taken a very different approach.103 Nor it corresponds with the intention of its drafters.

In its analysis of article 4(1) ECHR, the UTIAC narrowly focused on the Siliadin case which, however, is not in conformity with how the concept of slavery has been interpreted at the international level, including by the ECtHR itself in subsequent cases.104 In Siliadin, considering the scope of slavery under article 4(1) ECHR, the ECtHR started off with the slavery definition in the 1926 Slavery Convention.105 The ECtHR, in the case at hand, interpreted this definition as requiring the exercise of a “genuine right of legal ownership” (emphasis added), and reduction of the concerned individual to the status of an “object.”106 Later, in Rantsev and in M. and Others, the ECtHR referred to its earlier position in Siliadin, however, the Strasbourg Court changed the language. It removed the requirement of “legal ownership” and merely referred to the “exercise of a genuine right of ownership”:

In Siliadin, considering the scope of ‘slavery’ under Article 4, the Court referred to the classic definition of slavery contained in the 1926 Slavery Convention, which required the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an ‘object’ […] (emphasis added).107

Notably, in Rantsev, the ECtHR underlined that the provisions enshrined in the ECHR must be interpreted in the light of the rules of interpretation set out in the Vienna Convention on the Law of Treaties.108 It followed that the ECHR must be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty, in their context, and in the light of the object and purpose of the text.109 The ECtHR emphasised that, being an “instrument for the protection of individual human beings,” the object and purpose of the ECHR “requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.”110 In addition, the ECtHR noted that the ECHR cannot be considered in a vacuum, underlining that the Court “has never considered the provisions of the [ECHR] as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein […]”111 In this regard, the ECtHR observed that:

account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties and the [ECHR] should so far as possible be interpreted in harmony with other rules of international law of which it forms part (emphasis added).112

On the basis of the above, that is, the principle of systemic integration, the ECtHR turned to consider relevant factors that had led the ICTY, in the case of Kunarac, to find a crime of enslavement.113 This contradicts the UTIAC’s claim that the ECtHR has not referred to ICL for the purposes of interpreting article 4(1) ECHR.114 The ECtHR, in its assessment, stated that in Kunarac the ICTY had concluded that the concept of slavery in the 1926 Slavery Convention encompasses contemporary forms of slavery “based on the exercise of any or all of the powers attaching to the right of ownership.”115 The ECtHR also observed that the ICTY, in assessing whether a situation constitutes slavery, considered relevant factors including, among others, control of a person’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, control of sexuality and forced labour.116 In doing so, the ECtHR departed from its earlier reasoning in Siliadin thereby discarding the requirement of “legal ownership.” The UTIAC, however, overlooked the revisited position by the ECtHR thus failing to interpret the definition of slavery progressively and in a manner consistent with international law.

Another of the deficiencies in the Courts’ analysis lies in the fact that they failed to conduct a closer examination into factors that are legally relevant in cases of de facto slavery. First, it bears repeating that the UTIAC echoed a pronouncement by the ILO’s Committee of Experts, whereby the Committee stated that Eritrean citizens “are subject to [MNSP] and forced labour that effectively [….] enslave them” (MST and Others, para. 271, emphasis added).117 As discussed in Section 2, a phenomenon of forced labour is capable of amounting to slavery if any or all of the powers attaching to the right of ownership are exercised over a person.118 Therefore, in order to prove the exercise of these powers and to identify a situation of slavery, judges shall take into account factors such as, inter alia, forced labour, restrictions on freedom of movement or choice, measures taken to prevent escape and duration of the situation.119 The UTIAC and the FAC, however, omitted any assessment of whether these factors (which formed part of the evidence submitted to the Courts) pointed to the exercise by the Eritrean government of any or all of the powers attaching to the right of ownership over Eritrean conscripts. In other words, whether these factors revealed indications of slavery. Nor did the Courts assess the concerned individuals’ “vulnerability and the socio-economic conditions in which the powers were exerted,” or the individuals’ “perception” of their situation. As shown above, these factors also need to be taken into account in assessing whether a situation constitutes slavery.120

Secondly, while the UTIAC identified that the MNSP “is a way of controlling the population,” it abstained from examining whether the type of control exercised over Eritrean citizens qualifies as slavery (MST and Others, para. 423, emphasis added).121 More specifically, the UTIAC explicitly rejected that control of an individual’s freedom of choice, when coupled with other factors such as restricted freedom of movement and “occasional disproportionate punishment for absenteeism,” constitutes slavery under article 4(1) ECHR. Nonetheless, an ICL-based reading of slavery strongly suggests otherwise. For instance, the ICC’s Trial Chamber in Kunarac held that restrictions on “any freedom of choice” is one of the factors to be taken into account to prove the exertion of powers attaching to the right of ownership.122 Moreover, the Extraordinary Chambers in the Courts of Cambodia found that powers attaching to the right of ownership were exercised over a number of detainees that were assigned to work within the Security Prison 21 (commonly referred to as “S-21”) under the Khmer Rouge regime. The Chambers held that the relevant persons “had no real choice as to whether they would work” and “had no right to refuse to undertake the work assigned to them” (emphasis added).123 According to the Chambers, “their forced labour or involuntary labour, coupled with their detention, amounted to enslavement.”124

Human rights courts have also furnished clarification that the 1926 slavery definition applies to de facto situations of ownership, i.e., situations where any or all of the powers attaching to the right of ownership are exercised in a factual manner, stressing that the exercise of “control” is a determinative factor for recognising the exercise of such powers (i.e., a situation of slavery).125 In doing so, these courts have treated case-law that emerged before international and hybrid criminal courts as a relevant source of interpretation of slavery under their respective human rights instruments.126 Rightly so, an ICL-based interpretation of the concept of slavery, unlike it may happen in other areas, would not reduce the protective scope of article 4(1) ECHR or its counterpart provisions in other human rights treaties. In fact, by its own reiterated admission, “the ECtHR is not regularly called upon to consider the application of Article 4.”127 Thus, relying solely on the very limited Strasbourg jurisprudence on article 4 ECHR would be contrary to the interpretative techniques endorsed by the ECtHR, which pleads in favour of interpreting the ECHR in an evolutionary (and liberal) manner, that is, in line with understandings at the time of its application.128

Importantly, the ECtHR has treated the Council of Europe Convention on Action against Trafficking in Human Beings and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, which have a strong criminal justice focus, as relevant sources of interpretation of the material scope of and states’ positive obligations under article 4 ECHR.129 This serves to further contest the UTIAC and FAC’s refusal to apply criminal law notions to article 4(1) ECHR. If this is still not convincing, it would be important to remember that the ICTY’s Trial Chamber in Kunurac surveyed an array of international legal instruments from different domains (including IHRL) in order to give content to the concept of “slavery.”130 This was deemed necessary insofar as the prohibition of slavery is present in various areas of international law. Therefore, the Kunurac’s interpretation of slavery (which inspired a rich body of case-law worldwide) is not only based on ICL, but on IHRL as well. This same argument applies to the COIE’s assessment of slavery, which relied on Kunarac’s interpretation thus embracing (although not explicitly) metrics deriving from IHRL and international humanitarian law.

Turning back to the issue of de jure slavery, not only existing jurisprudence is elucidating in this respect, but also the travaux préparatoires pertaining to the 1916 Slavery Convention provide some insights into the scope of the slavery definition in its article 1(1).131 Allain’s examination of the negotiations leading to the 1926 Slavery Convention reveal that the phrase “status or condition” in article 1(1) distinguishes between slavery de jure and slavery de facto, “whereby slavery as ‘status’ is a recognition of slavery in law, and slavery as ‘condition’ is slavery in fact” (Allain 2009). Similarly, the High Court of Australia in Tang held that while “status” is a legal concept, the term “condition” makes reference to de facto slavery.132 The Hight Court of Australia reasoned that “the evident purpose of the reference to ‘condition’ was to cover slavery de facto as well as de jure” since, in 1926, the legal status of slavery did not exist in many parts of the world, particularly in the states parties to the 1926 Slavery Convention, and as such, legal ownership over a person was impossible.133 This is also reflected in the Preamble of the 1926 Slavery Convention, according to which, the purpose of the Convention was the “suppression of slavery in all its forms” (emphasis added).134 With regard to the meaning of the phrase “in all its forms,” the High Court of Australia, in Tang, noted that it shall be understood that the purpose of the 1926 Slavery Convention was not limited to “questions of legal status.”135 This is another relevant examination that is missing in cases MST and Others and E-5022/2017. Notably, the UTIAC and the FAC referred to the MNSP as a “condition” and not as a “status” in several occasions throughout their judgments. For instance, by endorsing Siliadin’s interpretation of servitude, both Courts argued that, in the MNSP, it cannot be said that there is an impossibility of changing this “condition” (MST and Others, para. 405; E-5022/2017, para. 6.1.4).136 In doing so, the Courts (unwittingly) recognised de facto slavery.

3.3.2. Permanence: A Characteristic for Slavery to Be Said to Exist?

Moving on to consider the second feature identified by the UTIAC and the FAC, that is, “permanence,” the following comments may be made. The UTIAC and the FAC cited approvingly the passage from the Siliadin case where the ECtHR ruled that servitude also includes “the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition.”137 However, since then, the ECtHR has revised, or at least clarified its understanding of the “impossibility of altering” a person’s condition which, in the words of the ECtHR, consists “in the victim’s feeling that their condition is permanent and that the situation is unlikely to change” (emphasis added).138 While the UTIAC overlooked C.N. and V.,139 the FAC referred to it in its own legal assessment, although its conclusion took the focus away from the “feeling” of the asylum applicant. It bears repeating that the FAC concluded that the MNSP cannot be considered to constitute slavery under article 4(1) ECHR as this is a permanent condition (E-5022/2017, para. 6.1.4). Nevertheless, in C.N. and V., the ECtHR did not establish this requirement, but instead examined relevant factors indicating that the victim felt that her condition was permanent.140 While the FAC rightly referred to C.N. and V. (and did not interpret slavery as “legal ownership” but as powers attaching to ownership), it discounted this thinking to replicate MST and Other’s legal analysis of article 4(1) ECHR.141 Thus, in a contradictory manner, the FAC disregarded the normative legal system it had engaged with and instead relied too heavily on the UTIAC’s interpretation.

The Courts, having considered ICL, should have determined that the duration of the “condition” is not a constituent element of slavery. The Trial Chamber of the ICTY observed that:

[t]he duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved; however, its importance in any given case will depend on the existence of other indications of enslavement […] (emphasis added).142

The ICTY’s Appeals Chamber uphold this verdict, further observing that “the duration of the enslavement is not an element of the crime.”143 That said, the Appeals Chamber went on to note that although the duration of the relationship helps in determining the quality of the relationship between the “slave” and the “slaveholder,” there are a number of factors that also determine that quality.144 Later, the Special Court for Sierra Leone, in cases Sessay and Taylor, cited with approval the interpretation of the ICTY’s Appeals Chamber to this respect. It held that “there is no requisite duration of the relationship between the accused and the victim that must exist in order to establish enslavement.”145 Drawing on this case-law, the ICC’s Trial Chamber most recently ruled that while the “duration of the exercise of powers attaching to the right of ownership is a factor to be taken into account,” “[t]he law also does not establish a minimum period of enslavement.”146

A case heard before the ECOWAS Court of Justice, a human rights court, is also elucidating in this regard.147 In Hadijatou Mani Koraou, the “slaveholder” issued the “slave” with a document entitled “certificate of emancipation (from slavery),” stating that from the date of signature of the said deed, the victim “was free and was nobody’s slave.”148 Regardless of the fact that the applicant “emancipated” herself from her slaveholder, the ECOWAS Court of Justice found that she had been a victim of slavery.149 The ECOWAS highlighted that “the moral element in reducing a person to slavery resides, […] even so, after the document of emancipation had been made.”150

Going back to the debates during the drafting process of article 1(1) of the 1926 Slavery Convention, Albrecht Gohr, who acted as the Chair of the Temporary Slavery Commission (which was formed in 1924 for the establishment of the 1926 Slavery Convention), initially defined slavery as: “the status of a person over whom another person or group of persons exercises the power attaching to proprietorship; or in the holding of a pledge or who is complied to serve such other person or group of persons for an undetermined time” (Allain 2015, pp. 402–3; Miers 2003, emphasis added).151 This speaks of undetermined time, as opposed to a permanent status or condition.152 Importantly, the Temporary Slavery Commission noted that the abolition of the legal status of slavery implied that slaves had the right to assert their freedom, “without ransom and without going through any formal process of fulfilling any prior condition, by simply leaving [their] master if [they] desire to do so” (Allain 2015, p. 436, emphasis added). Later, during the drafting process of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (“1956 Supplementary Convention”), which replicated the 1926 slavery definition in its article 7(a), the UN Secretary-General spelled out six characteristics of the “powers attaching to the right of ownership” (ECOSOC 1953, pp. 27–28; see also ECOSOC 1954).153 In particular, characteristic 6 stated that “the servile status is permanent, that is to say, it cannot be terminated by the will of the individual subject to it.”154 This further clarified that the “relationship” between the “slave” and “slaveholder” is not required to be permanent or lifelong for recognising a situation of slavery, but rather that such “relationship” cannot be terminated by the will of the person subject to it.155

As discussed in Section 3.1.1, the UTIAC ruled that discharge or release from the MNSP is arbitrary to the extent that “it is at the whim of a commander or employer” (MST and Others, para. 301, emphasis added) and that the period expected to serve is unknown to the concerned individuals (MST and Others, para. 304). This description falls within the meaning of “permanence” in the slavery definition discussed above. In slavery terms, permanence translates into the ability of the slaveholder (not) to terminate the “relationship,” or in other words, it refers to the impossibility of the “slave” to put an end to the “relationship” by their will, or their conviction of the latter.156 In addition, the UTIAC agreed on the “indefinite and open-ended” nature of the MNSP (MST and Others, para. 405, emphasis added). It also alluded to the ILO’s statement that claimed that the MNSP effectively enslaves conscripts “for indefinite periods of time” (MST and Others, para. 271, emphasis added). Yet, the UTIAC failed to consider this factor, i.e., an “indefinite” service, as legally relevant to its assessment of article 4(1) ECHR. Similarly, as discussed in Section 3.2.1, the FAC held that while the MNSP has no formally limited duration, in its view, this does not equal permanent duration (E-5022/2017, para. 6.1.5).157 However, according to the foregoing analysis, “unlimited” and “indefinite” periods of time fall within the meaning of “permanence” concerning cases of slavery or servitude. It is also important to keep in mind that the ECtHR, in C.N. and V., ruled that a situation that “lasted four years” qualified as servitude within the meaning of article 4(1) ECHR (emphasis added).158

3.3.3. Does Slavery Need to Be Committed in a Widespread and Systematic Manner for Recognising its Presence?

Lastly, the suggestion by the UTIAC and the FAC that a slavery has to be committed as part of a widespread and systematic attack against the population for recognising its presence is factually and legally wrong.159 Widespread refers to the large-scale nature of the attack and the number of victims, whereas systematic refers to the organised nature of the attack. The definition of slavery in article 1(1) of the 1926 Slavery Convention does not require such contextual element, that is, a context in which slavery, for it to exist, has to be committed in a widespread or systematic manner. Likewise, these elements are not spelled out within the textual boundaries of the enslavement definition in article 7(2)(c) of the Rome Statute. Axiomatically, both definitions (only) require the exercise of any or all of the powers attaching to the right of ownership over a person. To be more precise, a phenomenon of slavery needs not to be committed in a widespread or systematic manner to fulfil the definitional criteria set forth in article 1(1) of the 1926 Slavery Convention (or that in article 7(2)(c) of the Rome Statute). Therefore, in seeking to identify a situation of slavery within the meaning of article 4(1) ECHR, the presence of these elements (widespread or systematic) is irrelevant. When a conduct contrary to article 4(1) ECHR is committed as part of a widespread or systematic attack against the population or part of it, then it may reach the threshold of a crime against humanity. Otherwise, it is still slavery.

4. The Interpretation of Article 4(1) ECHR in Refugee Status Determination

The lack of an international authority capable of providing a binding interpretation of the provisions of the 1951 Refugee Convention means that the Convention is subject to (divergent) domestic judicial interpretation. Refugee law decision-makers have to look “elsewhere” in order to interpret the elements enshrined in the refugee definition in article 1A(2) of the 1951 Refugee Convention. Against this backdrop, Holvoet argues that the 1951 Refugee Convention must be uniformly interpreted to provide consistent protection and predictability of its definition (Holvoet 2014, p. 1048). Likewise, according to UNHCR (2001, para. 3), it is essential that states parties to the 1951 Refugee Convention apply the refugee definition in a “harmonized and mutually consistent manner.” However, as Cantor (2016, p. 377) argues, there is no set of common instruments applicable to all the states parties to the 1951 Refugee Convention, which in turn hinders the interpretation of the refugee definition in a consistent and universal manner. Following this line of though, Cantor highlights the need for new theoretical models that speak to the general structural relationship between refugee law and human rights law (Cantor 2016, pp. 392–93). This is to what this article turns to now.

The notion of “persecution” in article 1A(2) of the 1951 Refugee Convention allows for an interpretative approach that intersects refugee law with other branches of international law. The Vienna Convention on the Law of Treaties requires us to interpret the 1951 Refugee Convention “in the light of its object and purpose” (article 31; see also Farmer 2008, p. 11), which in the language of the Preamble is to afford “refugees the widest possible exercise of [the] rights and freedoms” set forth in the 1951 Refugee Convention.160 Further, article 5 of the 1951 Refugee Convention allows for the application of other instruments, apart from the 1951 Refugee Convention, that grant “rights and benefits” to refugees. It states that “[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention” (article 5). As Edwards (2008, pp. 132–34, 421) argues, this clause opens up the possibility to grant more beneficial rights to refugees than the “minimum standards” stipulated in the 1951 Refugee Convention, see also (Li 2017, p. 83). Thus, both the Preamble and article 5 give the possibility to bring into play other relevant legal instruments insofar as this results in more favourable rights and benefits for refugees. This interpretative approach is also in line with the recommendations of the Final Act of the Conference of Plenipotentiaries, which adopted the 1951 Refugee Convention itself. In particular, Recommendation E called for a “generous” application of the terms of the 1951 Refugee Convention (United Nations General Assembly 1951). It is important to note that the Final Act falls within the definition of a treaty’s “context” in article 31(2)(a) of the Vienna Convention on the Law of Treaties: “an agreement relating to the treaty […] made between all the parties in connection with the conclusion of the treaty.” Thus, it must be considered for the purposes of interpreting the 1951 Refugee Convention.

With regard to the purpose and object of the ECHR, these require that “its provisions be interpreted and applied so as to make its safeguards practical and effective”161 and thus, “in light of present-day conditions.”162 Therefore, by interpreting the persecution element of the refugee definition in the 1951 Refugee Convention against the background of IHRL (and more specifically, the ECHR), asylum decision-makers should interpret the terms of the Convention in an evolutionary and progressive manner, i.e., in light of “present-day conditions” and understandings. An interpretation of persecution contrary to article 4(1) ECHR that is restricted to chattel slavery or de jure slavery goes against the interpretative approach mandated by the ECtHR, insofar as this type of slavery has already been prohibited worldwide, and thus would not result in making the right to be protected against slavery practical and effective.

In interpreting and applying a provision, the Vienna Convention on the Law of Treaties also stipulates that, together with the context, account should be taken of “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (article 31(3)(b)). Besides the 1926 Slavery Convention, this comprises both the Rome Statute and the 1956 Supplementary Convention. As discussed in this article, both treaties have reproduced the definition of slavery in article 1(1) of the 1926 Slavery Convention, and by becoming states parties to these treaties, the UK and Switzerland have agreed, in both instances, that the 1926 definition of slavery therein is the accurate legal definition of this term (see e.g., Allain 2017, pp. 44–45; Allain 2015, p. 239; Allain and Hickey 2012, p. 917).163 It is useful to recall that this definition refers to the “exercise of powers attaching to the right of ownership” as distinguished from the exercise of “legal ownership.” The case-law discussed throughout this article can also be considered as “subsequent practice.”

In addition, according to the principle of systemic integration set forth in article 31(3)(c) of the Vienna Convention on the Law of Treaties, account should be taken of “any relevant rules of international law applicable in the relations between the parties.” The 1926 Slavery Convention, the Rome Statute and the 1956 Supplementary Convention constitute “any relevant rules of international law applicable in the relations between” the UK and Switzerland, as both countries have ratified these treaties. As discussed throughout this article, ICL has played an important role in contributing to a principled and progressive interpretation of the international law concept of slavery. On this basis, and in conformity with article 31(3)(c) of the Vienna Convention on the Law of Treaties, the ECtHR considered the ICL’s interpretation of the definition of slavery in the 1926 Slavery Convention, in particular the ICTY’s pronouncement in Kunarac, for the purposes of interpreting slavery under article 4(1) ECHR. While the ICTY framework is not per se “applicable in the relations between” the UK and Switzerland, the ICTY’s interpretation of slavery in Kunarac has been replicated by the ICC in the cases of Katanga, Bosco Ntaganda and Dominic Ongwen, as well as endorsed by the ECtHR in Rantsev. This makes the interpretation applicable to both countries, to the extent that they are states parties to the Rome Statute of the ICC and the ECHR. Moreover, the ICJ has pointed to the requirement to interpret an international instrument within “the framework of the entire legal system prevailing at the time of the interpretation.”164 Most of the international instruments and case-law pertaining to slavery that this article has discussed therein form part of the “legal system prevailing” at present, and therefore should be taken into account for the purposes of interpretation.

On this legal basis, the assessment of asylum applications based on desertion or evasion from the MNSP in refugee status determination procedures should draw, inter alia, from the practice of international criminal courts.165 Whilst it is increasingly accepted that the provisions of the 1951 Refugee Convention, particularly the persecution element in article 1A(2), can be interpreted by reference to IHRL (see in particular Burson and Cantor 2016),166 less attention is being paid to the role of other branches of international law in interpreting its terms.167 Former Senior Judge Hugo Storey, in his academic work, argues that refugee decision-makers “have to apply and interpret the legal instrument before [them] as best as [they] can in order to decide who is a refugee” (Storey 2014, p. 274). According to Storey (2014, p. 285), to interpret the 1951 Refugee Convention “it is necessary to have recourse not just to IHRL but international law more generally” (emphasis in the original). Notably, Storey was one of the three judges in MST and Others. This case did provide him with an opportunity to interpret article 4(1) ECHR and persecution in article 1A(2) of the 1951 Refugee Convention in a manner consistent with his scholarly contributions (e.g., Storey 2014; Storey 2012).168 The author similarly argues that an approach to the interpretation of the article 1A(2) persecution element should be one that is not necessarily restricted to refugee law, nor to IHRL. This is reinforced by the UNHCR’s Executive Committee (2005), which in its Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection No. 103 (LVI) at para. (c), noted that refugee law is “informed by […] developments in related areas of international law, such as human rights and international humanitarian law bearing directly on refugee protection”, see also (Edwards 2008, pp. 429–34). Most recently, in its Guidelines on International Protection No. 12: Claims for refugee status related to situations of armed conflict and violence, UNHCR (2016, para. 15) sustained that, for the purposes of determining refugee status, the existence of violations of international humanitarian law can be “informative” of whether a conduct amounts to persecution within the meaning of the 1951 Refugee Convention. Therefore, UNHCR pleads in favour of looking beyond IHRL to interpret persecution by reference to other branches of international law. Likewise, the Committee on Population and Refugees of the Council of Europe, in its resolution of January 1976, explicitly stated that account should be taken to “different international instruments.” The Committee noted that persecution:

should be interpreted and applied liberally and also adapted to the changed circumstances which may differ considerably from those existing when the Convention was originally adopted […] account should be taken of the relation between refugee status and denial of human rights as laid down in different international instruments (Ferguson et al. 1976, p. 69; Hathaway 1991, p. 122, emphasis added).

It is important to keep in mind that the 1951 Refugee Convention is a living instrument, which thus requires an evolutive interpretation of its terms. Similar to the Committee on Population and Refugees’ resolution of January 1976, Lord Bingham of Cornhill in R otao Sepet & anor, upholding earlier conclusions of two other judges in R v Immigration Appeal Tribunal, Ex p Shah [1997] and R v SSHD ex p. Adan [2000], reasoned that:

It is plain that the Convention has a single autonomous meaning, to which effect should be given in and by all member states, regardless of where a decision falls to be made […] It is also, I think, plain that the Convention must be seen as a living instrument in the sense that while its meaning does not change over time its application will […] Unless [the Refugee Convention] is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism […] It is clear that the signatory states intended that the Convention should afford continuing protection for refugees in the changing circumstances of the present and future world. In our view the Convention has to be regarded as a living instrument: just as, by the Strasbourg jurisprudence, the [ECHR] is so regarded (emphasis added).169

Lastly, the author argues that the need to apply the refugee definition in article 1A(2) of the 1951 Refugee Convention on an individual basis (UNHCR 2019) calls for a context-specific interpretation of the persecution element. That is, that the specific context of each case should tell asylum decision-makers what international legal instruments should be applied to give content to the element of persecution. In practice this means that, where the factual evidence points to a situation that may classify as slavery (or servitude), the assessment of the concerned asylum application would necessarily require asylum decision-makers to consider other areas of international law beyond IHRL, insofar as the concept of slavery is not exclusively confined to IHRL.170 This interpretative approach is underpinned by the fact that, in contrast to IHRL (and specially the Strasbourg jurisprudence), ICL has developed a rich and consistent body of jurisprudence on the interpretation of slavery and its application to contemporary situations in light of present-day conditions.

5. Conclusions

This article has discussed the extent to which the UTIAC and the FAC failed to engage normatively with the proscribed conducts in article 4(1) ECHR (slavery and servitude). In doing so, the article has illustrated that the scope of article 4(1) ECHR is broader than its interpretation by the UTIAC and the FAC. The British and the Swiss Courts set unreasonable requirements to satisfy article 4(1) ECHR. Crucially, the UTIAC failed to consider that the 1926 definition of slavery, as interpreted by several international courts, including the ECtHR, does not require a “genuine right of legal ownership” (i.e., de jure ownership), but that it covers the “exercise of powers attaching to the right of ownership” in de facto situations (that is, situations where a person is not legally owned). In addition, both the UTIAC and the FAC failed to interpret that servitude (and slavery) does not need to be permanent or lifelong to be said to exist. Furthermore, both Courts similarly erred in law in interpreting that, for the purposes of recognising its presence, a phenomenon of slavery needs to be committed in a widespread or systematic manner.

When interpreting article 4(1) ECHR, both the UTIAC and the FAC refused to draw from the practice of international and hybrid criminal courts and tribunals. This is an important omission insofar as, in contrast to the ECtHR, international criminal law has developed a significant body of jurisprudence on the interpretation of the international law concept of slavery and its application to contemporary situations. In refusing the applicability of international criminal law to article 4(1) ECHR, the British and the Swiss Courts overlooked factors that are legally relevant to recognise whether “powers attaching to the right of ownership” were exercised with regard to the concerned individuals and thus whether a particular phenomenon, in this case the MNSP, constitutes slavery. These factors include, among others, forced labour, lack of freedom of choice, measures taken to prevent escape, arbitrary detention and punishment, indefinite duration of the MNSP, and the socio-economic circumstances in which the MNSP takes place. For the purposes of interpreting article 4(2) ECHR (forced or compulsory labour) and applying it to the context of the MNSP, the UTIAC and the FAC had recourse to the ILO Conventions and their corresponding interpretation by of the ILO’s Committee of Experts. In doing so, the UTIAC and the FAC found that the MNSP falls within the scope of article 4(2) ECHR. As aptly interpreted by international courts worldwide, forced labour, if coupled with other factors, such as the ones mentioned above, may constitute slavery. However, the British and the Swiss Courts failed to make this linkage. This points to the judges’ limited engagement with the prevailing legal system, rules, principles and definitions that provide the scheme of interpretation of article 4(1) ECHR (slavery).

The findings of this article show that there is a clear room for enhancing protection for Eritrean asylum applicants. This article argues that the need to apply the refugee definition in article 1A(2) of the 1951 Refugee Convention on an individual basis calls for a context-specific interpretation of “persecution” whereby the context, in this case slavery, dictates to asylum decision-makers what international legal instruments should be brought into play in refugee status determination procedures. Being a living instrument, the 1951 Refugee Convention should be interpreted in an evolutionary manner, that is, in light of present-day conditions and in conformity with understandings and laws prevailing at the time of its application. Therefore, this article states that, in addition to international refugee law and international human rights law, the assessment of persecution contrary to article 4(1) ECHR involves the examination of concepts developed by international criminal law. As discussed in this article, this interpretative approach is in line with the principles of treaty interpretation set forth in the Vienna Convention on the Law of Treaties, while also affords “refugees the widest possible exercise of [the] rights and freedoms” enshrined in the 1951 Refugee Convention. A corrected interpretation of article 4(1) ECHR will provide scope for broadening protection to Eritrean asylum applicants and victims of slavery in general.