A/HRC/36/43 jurisdiction over the practice of slavery, regardless of where it is committed, by whom and against what category of victims. 4 The International Court of Justice has identified the protection from slavery as an example of an obligation erga omnes.5 The practice of slavery has been universally accepted as a crime against humanity, 6 and the right to be free from enslavement is considered so fundamental that all States can bring before the Court cases where other States have violated that right. 7 B. State responsibility and the standard of due diligence 12. The obligation of States to provide remedies and the right to have access to remedies can arise directly or indirectly under the rules of responsibility. The obligation arises directly when the State is active or complicit in subjecting an individual to slavery, servitude, practices and institutions similar to slavery and forced labour. On the contrary, the obligation arises indirectly when the State is not implicated in the harm but has failed to prevent it or respond appropriately (e.g. when the State has failed to exercise due diligence to investigate and prosecute perpetrators and to assist and protect victims). 13. The principle of State responsibility confirms that States have an obligation to act with due diligence, which entails the exercise of a measure of care in preventing and responding to acts by private persons or entities that interfere with established rights. Under the standard of due diligence, the State is not responsible for the acts of others, but for its failure to prevent, investigate, prosecute or provide redress for the harm caused. The general obligations of States extend beyond negative obligations of non-interference and include positive obligations, such as legislative reform, the provision of remedies and protection from non-State interference. 1. Obligation to ensure that subjecting a person to slavery, servitude, practices and institutions similar to slavery and forced labour is defined in law as a crime 8 14. States have an obligation to adopt appropriate legislation penalizing slavery, servitude, practices and institutions similar to slavery and forced labour, this legislation must be sufficiently clear and detailed and provide a punishment commensurate to the crime. In its 2005 judgment in the Siliadin v. France case, concerning a woman who had been held in servitude as a domestic worker in France and for the first two years of her exploitation had been a child (aged under 18 years), the European Court of Human Rights observed that the legislation in France regarding servitude had been vague and the penalties imposed had been inappropriately lenient. Referring to the obligations of France as a State party to the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery and to the Convention on the Rights of the Child the Court considered that Limiting compliance with article 4 of the [the Convention for the Protection of Human Rights and Fundamental Freedoms] only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. … States have positive obligations … to adopt criminal-law provisions which penalize the practices referred to in Article 4 and to apply them in practice. 9 4 5 6 7 8 9 See M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligations Erga Omnes”, in Law And Contemporary Problems, Vol. 59, Iss. 4 (1996). See Barcelona Traction, Light and Power Co, Ltd. (Belgium v. Spain), 1971 I.C.J. 32. (Feb. 5). Article 7 (2) (c) of the Rome Statute of the International Criminal Court characterizes “enslavement” as a crime against humanity falling within the jurisdiction of the Court. See R.C. Redman, “The League of Nations and the Right to be Free from Enslavement: the First Human Right to be Recognized as Customary International Law”, in Chicago-Kent Law Review, Vol. 70, Iss. 2, pp. 759-800 (1994). See annex for additional relevant jurisprudence at the regional level. See Council of Europe, European Court of Human Rights, Siliadin v. France (Application 73316/01), 26 July 2005, para. 89. 5