The judgment in this case by the Inter-American Court of Human Rights (IACtHR) has been rightly acclaimed as seminal.1 It is the first ruling by the Court to address specifically the concerns of slavery in the Americas, and can be seen as a positive step for the application of both regional and international standards on slavery and slavery-like practices.
Moreover, the judgment addresses far more than the criminal offenses of slavery, slavery-like practices, and human trafficking. It seeks to break new ground on two points. First is the jurisprudence of a regional human rights court in respect to the underlying factors of structural discrimination, grounded in extreme poverty and vulnerability, that create a breeding ground for severe labor exploitation in a remote region, such as the Brazilian Amazon. Second is the obligation of the State to address related long-standing patterns of discrimination.
Yet, the judgment presents something of a paradox. On the one hand, the exploitative practices referred to in the country’s law and policy as slave labor have been widely documented in Brazil over the past two decades, particularly but not only in remote parts of the Amazon region, where vulnerable workers from the northeast have been subjected to coercive recruitment and employment practices in logging, cattle-ranching, and mineral enterprises. On the other hand, recent governments in Brazil—often in cooperation with business leaders and civil society groups—have adopted a range of creative law and policy measures to combat these abuses, to the extent that Brazil has often been recognized as a Latin American (if not global) leader in present-day initiatives to eradicate slavery and slave labor practices, forced labor, and human trafficking.
All of this needs to be placed in its proper historical perspective. It was more than two decades ago that Brazil—galvanized by a ruling of the Inter-American human rights system—undertook a series of legislative, institutional, and other measures to address the problems of slave labor.
In 1994, several Brazilian and international ngos lodged a petition with the Inter-American Commission on Human Rights. The case revolved in part around a seventeen-year-old, Jose Pereira Fereira, who had attempted with a colleague to escape from gunmen holding rural workers captive in the south of Para state, where some sixty workers had been reportedly forced to work on an estate without pay and in inhumane conditions. When Pereira and his colleague fled, they were attacked by armed employees of the landowner. The colleague was killed. Pereira received hospital treatment and subsequently denounced the workers’ conditions to the Brazilian federal police.
In their petition to the Inter-American Commission, the complainants cited relevant articles of the American Convention on Human Rights covering judicial guarantees and protection and the prohibition of slavery and servitude. The complainants also alleged disinterest and inefficiency on the part of the Brazilian State in the investigation and prosecution of the murders and the persons accused of labor exploitation. Furthermore, the inadequate response of the State permitted the severe labor exploitation that Pereira and other workers had endured to persist, and, despite the rising number of reports of similar violence, not a single estate employee or landowner had been convicted.
After years of proceedings, Brazil ultimately accepted responsibility in the case of Jose Pereira, and signed an amicable agreement to settle the case. The agreement specified four main areas of action to be taken by the State: acceptance of responsibility; payment of financial compensation for damages; a commitment to prosecute and punish the individuals responsible; and adoption of preventive measures to monitor and repress slave labor in Brazil, including legislative amendments, together with measures to raise public awareness.
Combating Slave Labor in Brazil
In 1995, the existence of slave labor in Brazil was officially recognized. Since then, various Brazilian subnational governments—municipalities—have devised often creative measures to tackle the problem. First, broad-based coordination mechanisms have been established to coordinate action against forced and slave labor. In 1995, an Executive Group to Eradicate Forced Labour (gertraf) was established, bringing together seven ministries under the coordination of the Ministry of Labour and Employment (mte). In 2003, this group was effectively replaced by a National Commission to Eradicate Slave Labour (conatrae), now composed of representatives of the executive, legislative, and judicial branches of government, together with various civil society organizations.
Second, comprehensive national action plans have been developed to guide efforts against slave labor. The first was launched in 2003 with ilo assistance, setting out shorter and longer-term objectives over a five-year period. A second plan was adopted in September 2008, setting out goals and specific guidelines for actions to combat slave labor, and stressing the need to monitor the achievement of targets by both the national and state-level plans.
Third are a variety of creative approaches to labor inspection and law enforcement. A special Mobile Inspection Group (gefm) was created by the mte in 1995. Using teams of labor inspectors and labor prosecutors and supported by the federal police, the gefm’s task is to investigate complaints of slave labor in situ, to free workers, and to prosecute the owners of estates where workers have been found in conditions analogous to slavery. The gefm claims to have released some fifty thousand workers from slavery-like conditions. A supporting measure has been the so-called dirty list (lista suja) that the mte created in 2004.
This consists of a register of names of employers, either individual persons or legal entities, caught exploiting workers in conditions analogous to slavery. The list is compiled by the ministry on the basis of complaints lodged by affected persons or supporting nongovernmental organizations (ngos), and following investigations by the gefm. Once included on the list, employers are monitored for two years, after which their names are removed if all fines have been paid and the offense is not repeated. Although no specific related penalties are provided for, several public and private financial institutions have denied credit to entities appearing on the list.
Fourth, private companies have made important commitments to eradicate slave labor from their business activities and supply chains. The National Pact to Eradicate Slave Labour, adopted in May 2005, involved commitments against slave labor by individual companies, incorporating clauses in their purchase and sales contracts, and facilitating the reinsertion of freed workers. By the end of the decade, the approximately two hundred signatories included large supermarket chains and both industrial and financial groups, jointly accounting for about a fifth of Brazil’s gross domestic product (gdp). Participating companies subject themselves on a voluntary basis to the monitoring of their supply chains by an ngo.
Fifth, although Brazil has always had one of the most efficient labor administration and inspection services in Latin America, measures have been taken to strengthen their capacity to respond to slave labor allegations. In November 2003, for example, a federal law created 269 new labor courts in areas with a high incidence of slave labor.
Along with these positive developments have come a number of challenges and setbacks. The government itself, in its reports to the ilo supervisory bodies, has accepted the continuing high level of impunity for perpetrators of slave labor.2 Moreover, it has been difficult to determine the extent to which reported cases of slave labor should be addressed by criminal rather than labor justice.
The concept of trabalho escravo (slave labor) is, in terms of criminal law, unique to Brazil. It is legally defined in Article 149 of the Brazilian Penal Code, as amended in 2003, which criminalizes practices that cause persons to work in degrading conditions, with exhausting working hours, in conditions of forced labor, or in situations where their freedom is restricted through debt or isolation. As can be seen easily enough, this Brazilian concept draws on the ilo concept of forced labor as set out in the two ilo conventions on the subject, but goes considerably beyond it by covering other aspects of unacceptable or degrading conditions of work. As observed in an ilo publication, it allows for prosecution of employers who subject their workers to particularly degrading conditions, regardless of any clear evidence of coercion in the employment relationship.3
In practice, the leading role in the fight against forced and slave labor in Brazil has generally been taken by labor administration and justice. The Labour Ministry has pioneered the dirty list of abusive employers, been the driving governmental force in conatrae, and established the mobile teams that have rescued some fifty thousand workers from abusive conditions in remote parts of the Amazon. Furthermore, as the ilo’s ceacr has observed, the labor courts have convicted perpetrators of slave labor and imposed fines and the payment of substantial compensation.
In the meantime, efforts have been made to strengthen the application of criminal justice against perpetrators of slave labor. In its 2015 Observation on Brazil, the ilo’s ceacr observes an increase in the number of judicial proceedings based on Article 149 of the Penal Code, rising from eighty-three in 2010 to 677 in 2013; criminal cases increased from sixty-three in 2010 to 152 in 2013. In addition, the Prosecutor General’s Strategic Plan for the Federal Judiciary, 2015–2020, includes among its priorities the judgment of criminal cases involving crimes connected with trafficking in persons and reducing a person to a condition akin to slavery.
Implications of the IACtHR Judgment on Slavery in Brazil
In the immediate future, the judgment should be a shot in the arm for the government of Brazil and its law enforcement, calling for intensified action against slavery and its perpetrators as serious crimes and serious criminals rather than leaving related matters largely in the domain of labor justice with its weaker sanctions and penalties. The involvement of labor inspectors and prosecutors in the fight against slave labor, backed by the Labour Ministry’s innovative mechanisms, is laudable and has rightly brought credit to Brazil in international circles. Coordinated action between labor and criminal justice is critical, however, leaving potential abusers in no doubt that severe labor exploitation will be punished severely with the full force of criminal law. It has now been clearly established that slave labor will be dealt with by federal rather than by local or state justice. This should avoid any repetition of inadequate state-level judgments, to which the judgment of the Inter-American Court makes ample reference.
In the longer term, other aspects of the Court’s judgment may have far more profound implications for jurisprudence in the Americas and beyond. The Court has been grappling with legal terrain largely uncharted in either the American regional human rights system or elsewhere. With an elaborate explanation and legal references, it has addressed head-on the complex issues of structural discrimination, extreme poverty and vulnerability, and the reasons that impoverished contract workers in an area like the northeast of Brazil cannot enjoy genuine access to justice without positive intervention by the State. “Soft law” on these concerns has been considerable. The judgment indeed makes ample reference to the deliberations of various un rapporteurs on such issues as extreme poverty, the right to food, indigenous peoples, and other vulnerable groups. But these deliberations have not previously been translated into binding judgments by a regional human rights court, requiring specific measures by a government against which judgment has been passed.
The issues discussed in Workers of the Hacienda Brasil Verde v Brazilhttp://www.corteidh.or.cr/docs/casos/articulos/seriec_318_esp.pdf are complex. On the one hand, as the judgment observes, Latin America has the greatest inequality in the world. On the other hand, as the dissenting opinion observes, considerable research and fact-finding is needed on these broader aspects of discrimination and inequality if related judgments are to be passed in full confidence.
The Court’s judgment on these matters is certainly a starting point, setting the stage for regional and national jurisprudence that can take on the banner of social justice and help address deeply embedded and long-standing patterns of structural discrimination. In a number of Latin American countries, indigenous peoples and their support groups should take note of this judgment and carefully consider the implications for their own future claims.
Inter-American Court of Human Rights, Workers of the Hacienda Brasil Verde v Brazil, Preliminary Objections, Merits, Reparations and Costs, Series C No. 318, 20 October 2016.
See, for example, ilo Committee of Experts on the Application of Conventions and Recommendations (ceacr), “Forced Labour Convention, 1930 (No. 29), Brazil (Ratification: 1957),” http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::::P13100_COMMENT_ID:3252842.
Patricía Trindade Maranhão Costa, Fighting Forced Labour: The Example of Brazil (Geneva: ilo, 2009), http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_111297.pdf.