Sellers: I want to bring up the Tokyo judgment because it’s so overlooked by most feminists. It speaks to something within us that we don’t more closely examine the Tokyo jurisprudence for what is present in it. There’s a lot of sexual violence present. But then, there is also a huge absence with the omission of the ‘comfort women’ crimes. Within the Tokyo Tribunal, there were no indictments that concerned the ‘comfort women’. But we have an estimated 100,000 to 200,000 women wherein the crimes committed against them were not part of the evidentiary basis and certainly not part of the jurisprudence. Until today, we live in an absence of what that jurisprudence could have been like.

For example, that jurisprudence might have emphasised how women from a vast sphere of countries within Asia-Pacific were abducted, falsely recruited, and enslaved in a sexualised nature. And during their enslavement, continually transferred, reposted, etcetera, meaning continual slave-trading and enslavement. And because we don’t have that as part of the IMTFE jurisprudence, we have an absence of understanding of that gendered aspect of enslavement and slave-trading over a long period of time in relationship to armed conflict. That lack of jurisprudence regarding ‘comfort women’ shows us very early on what could have been ‘same-side sexual violence’, an issue that we don’t really understand until the ICC’s Ntaganda case.Footnote ⁵

Grey: When we discussed Ntaganda back in 2018, you described that appeal judgment as a ‘high point’ in the ICC’s evolving jurisprudence, and observed that ‘it hasn’t really hit the international criminal law consciousness yet’.Footnote ⁶

Sellers: I believe that if we’d had jurisprudence regarding the ‘comfort women’, particularly those from Korea, which was a Japanese colony at the time, we would already have dispelled the myth that you can’t have war crimes over your ‘own’ people over seventy years earlier.

Grey: And now the Ntaganda ruling has been picked up in Colombia too, so the idea that sexual crimes within a military force can be a war crime is starting to travel across time and space.Footnote ⁸ But as you said, this could have happened decades ago, had the Tokyo Tribunal looked at this issue.

Sellers: In addition, the Tokyo Tribunal could have provided a valuable intersectional analysis had it examined the slave-trading and enslavement of ‘comfort women’. We can see the very racialised nature of enslavement within this context. Some of the women were indigenous, from Okinawa, Taiwan, Timor, and Burma. Those women’s treatment were not only among the worst, but those were the women that enlisted men could have access to. Whereas some of the women who were the daughters of colonisers in Indonesia, who were white European women, were abused by the officer corps of the Japanese army. So, this racialisation of the different comfort women was part of the ideology of the perpetrators. We shouldn’t be surprised; in the Asia-Pacific arena at that time, there was a highly racialised war. Japan was blatantly claiming racial superiority over the other countries in Asia and South-East Asia and Asia-Pacific.

There were issues of class too. The women and girls recruited for work purposes were from working families that not only needed the money, but that could ‘allow’ their daughters to go to a foreign place with the hopes of bringing back money. But in the IMTFE, we really lacked this kind of intersectional gender analysis of the crimes committed against the ‘comfort women’. I think that we have to be very cognisant of the richness of the jurisprudence that is absent by not having had that as part of the foundational Tokyo judgment jurisprudence.

Grey: The judgment from the Tokyo Women’s Tribunal in 2000 showed us what that intersectional analysis of crimes against the ‘comfort women’ might have looked like.

Sellers: I also want to look at the other absent jurisprudence from the European theatre. We know that the Ravensbrück camp in Germany detained females (I assume they were female), let’s say women, mostly above eighteen, but there might have been some younger. Why were they detained in this camp that wasn’t necessarily a death camp for the Jewish population, but was certainly a detention camp that the National Socialist [Nazi] regime set up for females? Well, in Nazi ideology these women were outcasts, enemies of society. They were ‘prostitutes’, today we would say commercial sex workers, or considered to be lesbian, and therefore were not adding to the Nazi birth project of increasing the procreation of the Aryan race. They were women who might have been criminals under national penal law. All of these ‘unsociable’ female elements were gathered together at the detention camp. They were basically detained for not performing the expected gender roles of women in society, which is not examined in jurisprudence after the war.

That jurisprudence has not been examined to the extent that it could have been, given that some trials did occur regarding the Ravensbrück camp.Footnote ¹¹ These trials mainly concerned the female guards employed at the camp. We have to ask ourselves, who were these female perpetrators? Some had already been female guards at domestic women’s prisons, and some might have been recruited specifically for Ravensbrück. Therefore, you see the use of women to be guards over women who are considered to be outcasts. Among some of these female guards, it appears from the readings I’ve done, but not in the court transcripts, that some were lesbian women. It’s an interesting choice by the National Socialist regime to deploy lesbians on the one hand as a productive part of society, to guard other women who were considered ‘a-sociable’, some of them for that same reason.

We really haven’t explored those Ravensbrück trials to the commensurate extent that we’ve explored other subsequent cases from that period: the medical trial, the judges’ trial,Footnote ¹² and others tried in Nuremberg under Control Council Law 10. Those Control Council cases have entered the common knowledge, at least of those who want to be a little more nerdy about the Nuremberg proceedings. But we haven’t focused on trials against women defendants or about female camps. We have lost a richness in potential jurisprudence, even with its own prejudices of the day, that might have allowed us to better understand the gender ideology that related to imprisonment, to crimes against humanity against a female German population that was attacked, thus persecuted, by German society.

If we looked more closely at the Ravensbrück cases, it also would inform how we understand the detention of women during periods of armed conflict later on. For example, when we come to Yugoslavia, we find the Omarska camp and other gender-separated camps, where females and males are detained separately. We would see a slight continuum of past conflicts. It is horrific and terrible, but we would have places in our legal historical memory in which to slot the detention of women and help us understand this type of crime.

Sellers: The last thing I will say, coming up from the Nuremberg and the Tokyo era, is that the relationship between deportation and slave labour was never analysed to the extent it might have been. Those tribunals certainly look at enslavement under crimes against humanity, more so with Nuremberg. In fact, there is part of the Nuremberg judgment that talks about 500,000 women being deported into Germany to work as domestic labourers.Footnote ¹³ This idea of deporting into enslavement is, I think, another way of saying they were slave-traded. We don’t have that terminology within the jurisprudence, but certainly it could have been a more apt description of this very gendered example of slave-trading and enslavement.

And so, that consideration of gendered deportation, slave-trading, and enslavement is also absent from our jurisprudential background. There was no examination of the experience of this huge number of women being placed in German homes. As we know from historical experiences, they likely faced the kind of harsh treatment and sexual violence that maids and domestic workers confront when they’re isolated in private houses, particularly by persons who are considered their enemy at this point in time. So, this is individualised domestic labour in relationship to armed conflict. It’s not quite (imprisonment) detention, but it’s a different type of framework. That type of framework might help us to understand more about the experience of enslaved Yazidi females, who have been placed in individualised homes today as ‘domestic workers’, and whose enslavement is also sexualised.

Grey: I wrote down something you said before, ‘the richness of the jurisprudence that is absent’. Building on that idea, what do you see as absent from the jurisprudence of the ICTY, the tribunal where you began to actively shape the international jurisprudence on sexual and gender-based crimes? Speaking about jurisprudence that we don’t have, whose absence we’re haunted by, we’ve previously talked about the ICTY’s Kunarac case, in which you were on the prosecution trial team. Could you take us through your thoughts on that case?

Sellers: Yes, I wanted to give this background, so I could finally elaborate upon the ICTY jurisprudence and the Kunarac case. Months ago, we were speaking about what’s missing from the slavery jurisprudence. In doing that, I realised that the absences didn’t start with Kunarac, and they probably won’t end with Kunarac. I needed to recall the beginning, to the 1940s, to the foundations of international criminal law.

Within the ICTY jurisprudence, by the time the Kunarac case is delivered, we have already received the Furundžija and the Čelebići cases on sexual violence. There was an understanding from these cases that rape can be categorised as torture under the grave breaches of the Geneva Conventions, and also the customary-based war crime of outrages upon personal dignity. So, we’re positioning ourselves within this ‘rape as torture’ compendium. Before that, there seemed to be a binary understanding of crimes against male and female. Males came under torture; women came under rape. False legal hierarchies were set up. We thought that if crimes against women could come under torture, that would show that we’re as important as men. So, there was this interest in linking rape and torture together.

At that time that we’re investigating and drafting the indictment for Kunarac, we understand that Čelebići is coming out. There’s a bit more comfort with understanding that rape, when done for certain purposes, can be torture. However, in Kunarac, we have evidence showing something in addition is happening to these females who were taken from the detention facility and into the soldier’s homes, to be abused for weeks or months, which we eventually charged as their enslavement. I was legal advising on the case. It took some time to understand that there was something in addition to, if not more than, torture and rape. That in Kunarac, enslavement is happening, particularly when facts are being revealed of trading girls, and sales, and acts of that nature. If we had had that World War II jurisprudence, that would have popped out at us without a blink. We would have gone straight to charging enslavement, as opposed to having to go through the process of convincing colleagues, and making sure we could convince the judges.

At the time, this option [of charging forced sexual and domestic labour as enslavement] was completely off the radar of most of the feminists. We may make analogies by asking ourselves today: what is off the radar, what can’t we see because there hasn’t been a precedent?

Sellers: So, going forward with Kunarac, we started to better understand the choosing, gathering, and transferring of females for sexual violence, until they were reduced to a situation of enslavement. But we had missed legally categorising the transfers, the instances of trading and selling women, as slave-trading, which is a different crime to enslavement. Slave-trading is the precursory conduct that can lead to enslavement: the earlier steps of selecting, relocating, and sometimes transacting of people, so that they can be reduced to a situation of enslavement.

That understanding could have been reached via precedent if we’d better understood at Nuremberg what the deportation of 500,000 women into slave labour meant, or at Tokyo, what the transfer on Japanese wartime frigates or battleships meant for the ‘comfort women’. We would have followed that legal logic when interpreting Article 3 of the Yugoslav Statute, which was not an exhaustive list of war crimes. Rather, it allowed the pursuit of a war crime as long as it was a serious violation of the laws and customs of war, and one could have individual criminal responsibility for it. It could be a war crime in treaty, or in customary international law. Therefore, both slavery and the slave trade could have been, or should have been, prosecuted under Article 3 of the ICTY Statute. This would have been following Rule 94 of the ICRC study of customary law.Footnote ¹⁵

So those precedents also are missing from the ICTY. We don’t have the customary law basis of slavery and [the] slave trade as war crimes inflicted upon the Foča women in the Kunarac case. The evidence was there, but neither the prosecution made submissions nor judges made observations of that nature in obiter dicta, which could have also clarified the issue. What they did say is that one does not need the sale of a person in order to prove enslavement. Now, we might go further and clarify that the sale of a person could indicate the war crime of slave-trading, but not necessarily enslavement. There were so many ways that this could have been clarified by submissions, or by adjudication. Instead, we have this absence in Kunarac. You also see that absence in the Stanković indictment.

I maintain that this missing jurisprudence has influenced, or, I like the word you used earlier, has ‘haunted’ our approach to the subsequent ICC cases of Katanga, Ongwen, and Ntaganda. It’s clear in those cases that the abduction of boys and girls into militia groups was really the precursory conduct, the slave-trading conduct, in order to reduce them to enslavement.

Grey: Listening to you just now, I had another thought about the ongoing impact of absences in past jurisprudence. As you’ve written about before, enslavement and the slave trade are not listed as war crimes under the Rome Statute. It doesn’t appear that the drafters deliberately considered and excluded these crimes, it just seems to have slipped people’s attention at Rome. I wonder, if there had been strong jurisprudence from Nuremberg, Tokyo, and the ICTY about enslavement and slave-trading as war crimes, maybe this wouldn’t have been forgotten at Rome, and we’d now see those war crimes in Article 8 of the ICC Statute.

Sellers: Yes, I think they would have been in the Rome Statute because the jurisprudence from Tokyo, and particularly from Nuremberg, is just so pivotal. What also could have occurred to encourage the placement of these war crimes in the Rome Statute is if they were enumerated in the ICTR Statute. In 1977, in Article 4 of Additional Protocol II, there is a prohibition of slavery and the slave trade in all its forms.Footnote ¹⁸ Those prohibitions were not picked up in the ICTR Statute, although other parts of Protocol II were included. Maybe, there was a presumption that the Rwanda conflict was about genocide, rape, and so forth, but it wasn’t about slavery and slave-trading, so there was no need for their inclusion. In any case, I think that absence in the ICTR Statute contributed to these war crimes not even being concertedly considered during the drafting of the Rome Statute.

Grey: In your previous answer, you mentioned the ICC’s Katanga, Ntaganda, and Ongwen cases as examples where the transfer of people into enslavement could have been classified as slave-trading, if that were a war crime in the Rome Statute. Could you elaborate on your reading of those cases?

Sellers: Right, I’m using Katanga and Chui as an illustration.Footnote ¹⁹ The Trial Chamber seems to have correctly adjudicated that sexual violence occurred; it was committed by the militia groups that Katanga and Chui were involved in, and female civilians were taken from one place to another. Here is where we get our preliminary jurisprudence on the ‘sexual slavery’ provision of the Rome Statute. But we can look at the facts prior to the sexual slavery, which is not attributed to the accused. Once again there is evidence of choosing, of transporting, of distributing women and girls. If we’d had the jurisprudence on slave-trading that I talked about before, we could have understood this evidence from Katanga as analogous to what happened to the ‘comfort women’, and what happened to the women in Foča. The judges might have characterised, in obiter dicta, those acts as slave-trading.

It’s also a notable gap in Ongwen.Footnote ²⁰ There, the Trial Chamber does a very thorough job of understanding the idea of abducting civilians to go into an enslaved workforce, and that within those civilians, the boys are later reduced to child soldiers, another form of enslavement. The girls are reduced to what is called ‘ting tings’ [babysitters/domestic servants] if they are pre-menstrual, or to ‘bush wives’ if they are post-puberty and targeted to be sexually violated immediately. Now, looking back, we understand that the Trial Chamber is deliberating about their abduction and further distribution. These boys and girls were slave-traded until they were enslaved as child soldiers or as tings tings or as bush wives. When the fighter in charge of those enslaved children died, sometimes the children were slave-traded again. It perfectly fits into the 1926 and 1956 definition of slave-trading,Footnote ²¹ which can occur as a precursor to enslavement, but also subsequently, whenever enslaved persons are taken to new situations of enslavement. If we had the jurisprudential precedents that I spoke about earlier, and if that had led to the inclusion of slave-trading as a war crime and as a crime against humanity in the Rome Statute, we could have understood this evidence in Ongwen as the slave-trading of children. Ntaganda gives us similar situations where children are abducted, kidnapped, transferred, and distributed.

Grey: And in your view, what are the stakes of the fact that slave-trading is not listed as a crime in the Rome Statute, that there isn’t a legal lexicon to characterise that precursory conduct as ‘slave-trading’. Could you explain, why does that matter?

Sellers: That is a good question. One could say ‘it really doesn’t matter because there was enough other evidence that led to convictions’, or ‘it really doesn’t matter because there are other important precedents set by those ICC cases’, or ‘why don’t we just call that “other inhumane acts?”’ But I would say those are insufficient answers for three reasons.

First, if we could return to the women placed in Nazi households as domestic workers, or to the ‘comfort women’ or to the women in Foča, and decidedly describe what happened to them, I think it was just as terrifyingly criminal to be chosen and relocated, prior to any of the enslavement occurring. Those very acts – placing me on your battleship and transferring me from Okinawa to the Philippines – those are criminal acts and that should have been characterised as slave-trading. I was in essence a victim/survivor of an international crime in that very moment; but it is a crime that international courts have chosen to ignore. So, from the victim/survivor point of view, to say that we’ll examine enslavement but not slave-trading really is not to undertake responsibility as a judicial actor in relationship to the survivor. So, the first reason is that we’re denying the survivor recognition of the panoply of crimes that were committed against them.

Second, international criminal law has evolved to become a combination of [Continental] civil law and Anglo-Saxon law. Within that civil law aspect, the judges are to be presented with as full a rendition of the criminal conduct as possible. For example, in the Yugoslav context, we didn’t omit the detention crimes of someone. If they’re killed in detention, we did not only focus on the murder. We’d look at the whole sequence: they were forcefully transferred, they were detained, and then the killing occurred. No one would say ‘Let’s just get the killings’. Likewise, one has to question why, when it comes to enslavement, particularly of women and children, do we jump over slave-trading? What is the impact of jumping over that crime, especially from a gender point of view?

The third rationale is that it is completely contrary to the idea of using the entire panoply of available legal tools, if we are really serious about atrocity crimes. Right now, there is a lot of discussion about use of the crime of aggression from customary international law, since it can’t come before the ICC. It shows the importance of understanding the legal tools that are available, even the customary legal tools. So, skipping over or ignoring other legal tools, like the customary international crime of slave-trading, seems discordant with the project of access to justice, to judicial remedies, and, eventually, to reparations.

One could say that it’s only because the slave-trade jurisprudence is absent, as you and I have discussed. Well, that’s still not a reason for not utilising customary international law, or indeed for amending the Rome Statute to insert slave-trading under Article 7 as a crime against humanity and slavery and the slave trade under Article 8 as war crimes. These are among our earliest international crimes. They continue to haunt parts of society and are among the most egregious long-term crimes that states have perpetrated. They should not be overlooked.

Grey: I wanted to ask you now about two crimes that are in the Rome Statute: ‘sexual slavery’ and ‘enslavement’. As you know, there’s been a tendency in ICC cases to bring charges of ‘sexual slavery’ where sexual violence happens to a person who is enslaved. The option of charging that as ‘sexual slavery’ didn’t exist before the ICC, because previous tribunals didn’t have that crime in their statutes. Therefore, they used ‘enslavement’, as you did in Kunarac. A lot of feminist scholars see it as a win that the Rome Statute recognises both ‘sexual slavery’ and ‘enslavement’, and the Women’s Caucus pushed for this at Rome. But as you’ve written about before, this isn’t necessarily a step forward in all respects. It implies that sexual and reproductive violence are separate to ‘enslavement’, when in reality, losing control over one’s sexuality and reproductive capacity have always been part of what it means to be enslaved.Footnote ²² Can you say a few words on this? What is lost, in your view, when sexualised enslavement is charged as ‘sexual slavery’ rather than ‘enslavement’?

Sellers: Under the Rome Statute we have the crime of sexual slavery. In many ways, that was a feminist victory. That victory was very much influenced by the Kunarac case. We’d brought the first indictment (which included the enslavement charge) before the Rome Conference preparatory meetings concluded. The Kunarac appeals jurisprudence was rendered after. When you look at how enslavement is defined under customary international law, in that case, the judges opine about the psychological control over the person, the physical control, the control of the sexual access to the person, and so forth. Thus, the crime of enslavement has many indicia of how the powers attaching to the rights of ownership were exercised over the person. At that time period, there was very much of a fixation of the sexualised nature of the enslavement of the Foča women. That sexualised component of the crime of enslavement became, in some manner, reduced into sexual slavery in the Rome Statute, as opposed to being enlarged into understanding that enslavement is sexualised.

In the Rome Statute, the provision of sexual slavery highlights certain sexual acts and actually swallows up the wider enslavement, including other sexualised acts of enslavement. The elements of ‘sexual slavery’ are that someone is exercising powers of ownership over the person, and causing the person to engage in ‘acts of a sexual nature’. In essence, sexual slavery has the proverbial tail wagging the dog. Historically, enslavement usually involved sexual harms. So, I advance that we need to recapture the conceptualisation of the sexualised nature of ‘enslavement’ and eliminate the provision on ‘sexual slavery’.

Even as we examine sexualised enslavement today, being held out for an ‘act of a sexual nature’ is a reduction of what enslaved persons undergo. The current evidence of the enslavement of women and children, whether it’s Yazidis, or in ICC cases, we can understand that sexualised enslavement can mean that a person has powers attaching to any or all of the rights of ownership even without being caused to engage in an ‘act of a sexual nature’. For example, in the Ongwen case, the women who were subjected to forced pregnancy were all enslaved. But being pregnant is not seen as being caused to engage in an ‘act of a sexual nature’, so forced pregnancy was not charged as part of the sexual slavery. Likewise, the ting ting girls who were groomed as future wives, but were pre-menstrual, and who had not yet been raped, did not comprise part of the charges of sexual slavery either. Nevertheless, they endured sexualised enslavement because they were sexualised. Even while they were pre-menstrual, their enslavement was sexualised. They were guarded and watched to see what their physical sexual development would be, so that they could then be redistributed, that is slave-traded, as ‘bush wives’ when the time came. I think that boy soldiers are sexually enslaved also. They’re told when they’re allowed to rape, or be awarded a ‘wife’.

Grey: I see your point. The crime of ‘sexual slavery’ as currently defined requires proof of an ‘act of a sexual nature’. But there are ways that enslaved people are sexualised, even if they haven’t been subjected to rape, or groping, etcetera, because their captivity is sexualised in other ways.

Sellers: Absolutely. And let me give you another historical example. When examining practices in what is referred to as the East African slave trade or Arab slave trade, very often boys under eighteen were slave-traded into the harems of the Ottoman empire. During a stage of the slave trade, these youthful males were castrated. The official word is gelded. Their enslavers wanted males whose physical reproductive system was neutered in order to interact with and guard the females of the harem, who also were sexually enslaved. So, in essence, both males and the females endured a sexualised enslavement. But one couldn’t say these males would be victims under ‘sexual slavery’ in the ICC’s definition, because they were not caused to engage in an ‘act of a sexual nature’ while enslaved as eunuchs.

Grey: I have just loved what you’ve brought to this conversation, which is the idea of how a gap in the jurisprudence back in the 1940s can continue to limit our understanding of sexual and gender-based crimes. We’ve been talking mainly about the crimes most relevant to your current ICC advisory role, being slave-trading and enslavement. But your idea holds true for other crimes as well. My final question is about what feminist or gender-sensitive judging means to you. In a way this whole interview answers that question, by thinking about how judges could have been more gender-sensitive decades ago, and how that missing jurisprudence makes it even harder for judges to fill in those gaps now. But is there anything else you would like to add to that?

Sellers: I think if we start with the premise that judgments are supposed to render justice, then a feminist lens has actually enlarged our understanding of what justice is. A feminist judgment really centres the human being in their complexity to make sure that that human receives justice. As with many social movements – the movement for ability or disability, or the movement for the environment – they allow other human beings, who might not be involved in those movements, a fuller expression of their ability to enjoy rights.