by Bill Sundhu
“You stole my history,
Destroyed my culture,
Cut out my tongue,
So I can’t communicate.
Then you mediate
Hide my whole way of life,
So myself I should hate.”1
“Slavery and the slave trade were appalling tragedies…a crime against humanity, and should always have been so…especially the transatlantic slave trade,”2 declared the World Conference against Racism (WCAR) 2001. Racism is condemned virtually by every state and yet remains a human scourge. It’s prevalence and history continues to divide.
Instead of global unity against race and gender discrimination, WCAR revealed deep cleavages over slavery and colonialism. The final text did not include a demand or obligation to make reparations or an apology for the effects of transatlantic slavery and colonialism. The contentious debate remains unabated as the Review Conference (Durban) nears in 2009.
Member states bear the primary responsibility to ensure the effective implementation of the right to equality and non-discrimination. “Their participation in developing the anti-discrimination agenda established by the Durban Declaration and Plan of Action has created expectations that can be only met by determined and cooperative action.”3 Diplomatic and exhortatory language no doubt, but stating an implicit fact of international law – only states can create obligations and laws for payment of reparations.
The Organization of African Unity created an eminent persons group to explore the idea in 1992, as expressed by Lord Gifford that, “some form of appropriate, representative and trustworthy body be identified that can process the claim on behalf of all Africans, on the continent of Africa…who suffer the consequences of the crime of mass kidnap and enslavement.”4 The legal basis for such a claim is weak based on existing international law of state responsibility. The moral claim, however, is a very powerful one. Millions of slaves were transported across the Atlantic. Proponents of reparations contend African societies and civilizations were debilitated, leading to colonization and the degradation of racial discrimination. They attribute the present impoverishment of Africa to the exploitation of slavery and colonialism. As well, they contend the wealth and powerful position of the West was derived from colonization and slave labour. Judge F. Ammoun of the ICJ described Africa: “there fell upon it the two greatest plagues in the recorded history of mankind: the slave-trade, which ravaged Africa for centuries on an unprecedented scale; and colonialism, which exploited humanity and natural wealth to a relentless extreme.”5
As slavery was not illegal at the time, there are legal impediments – based on the doctrine of inter-temporal law. Article 13 (ILC) on State Responsibility (2001) provides, “An act of a state does not constitute a breach of an international obligation unless the state is bound by the obligation in question at the time the act occurs.”6 The international law of the time developed according to treaties made among European powers. “The agreements were often used to justify slavery, colonization and conquest.”7 Western colonial powers acquired sovereign rights over African “territory belonging to no-one” through simple occupation or conquest – as terrae nullius. Many affected states dispute the legitimacy of such rules, since they had no say in formulating them, and because they view them as having profoundly impacted their economic and political development.
Critics of reparations, particularly for slavery, contend it is impossible to frame such claims in traditional legal terms. American legal experience may be instructive, given its legacy of slavery and demand for reparations from African-Americans. Yamamoto8 points to five obstacles to bringing such claims:
- statutes of limitation;
- absence of directly harmed individuals (“all ex-slaves have been dead
for at least a generation”);
- absence of individual perpetrators (“those living today have not injured
and should not be required to pay for the sins of slave master forebearers);
- lack of direct causation;
- indeterminacy of compensation amounts (“it is impossible to determine
who should get what and how much”).
However, other reparations claims have been successfully pursued. Germany volunteered to compensate survivors of the Holocaust. After the Luxembourg Agreements (1952), David Ben Gurion remarked:
For the first time in the history of a people that has been persecuted, oppressed, plundered and despoiled for hundreds of years in the countries of Europe a persecutor and despoiler has been obliged to return part of his spoils and has even undertaken to make collective reparation as partial compensation for the material losses.9
However, Germany was defeated and this occurred in the aftermath of Nuremberg. Similarly, Japan was forced to pay reparations to Allied war prisoners. It is notable that treaties and not legal proceedings created these reparations. In the 1990’s, the Japanese government established funds to compensate some Asian “comfort women” and Austria did the same in regard to holocaust victims. Lawsuits resulted in negotiated settlements with French and Swiss banks that held Jewish assets stolen by the Nazis. Canada and the U.S.A. authorized payment to survivors of the wartime internment of citizens of Japanese origin. This included acknowledgement of the racial motivation of the acts. These were political responses or settlements.
The jurisprudence is less helpful to proponents. As far back as 1915, an American court found against a plaintiff (Johnson) who had sued the government claiming taxation of raw cotton produced by slave labour constituted unjust enrichment. It was held the government was immune from suit on sovereign grounds.10 In “Cato v. United States, the plaintiffs sued the United States for damages for past and present injustices related to ancestral slavery. The court dismissed their claim for lack of an arguable basis in law, in particular, lack of causation and standing.”11 This included a failure to adequately specify the parties seeking relief or from whom it was sought. In Iwanowa12 a claim of unpaid, forced labour (“slave trading”) of a citizen of the Soviet Union during WWII, the court held that only the government of the plaintiff’s country, at the time, could pursue such a claim. The court pointed to limitation periods, the importance of treaties upon claims brought under American legislation and the “political question doctrine.” In large measure, the court dismissed the claims because they raised nonjusticiable political questions saying, “ The very nature of executive decisions as to foreign policy is political…They are delicate, complex, and involve large elements of prophecy. They are and should only be undertaken by those directly responsible to the people.”13 At the international level, legal claims for reparations face similar challenges of proving present day Western states responsible.
It is difficult to foresee Western governments agreeing to treaties or precedent for claims that could be immense in modern currency. It has potential to be politically divisive – engendering conflict and resentment – at home and abroad. Philosophically and practically, the retroactive nature of such claims, pose enormous problems – how to evaluate, or even quantify, the suffering of injustice, oppression, slavery or colonialism – through the ages. Judge Ammoun of the ICJ observed:
Historians have outlined the upward march of mankind from the time when homo sapiens appeared on the face of the globe… in the Near East in what was the land of Canaan, up to the age of the greatest thinkers and, more particularly, throughout the whole of history of social progress, from the slavery of antiquity to man’s inevitable, irreversible drive towards equality and freedom. This march is like time itself. It never stops… The texts, whether they be laws, constitutions, declarations, covenants or charters, do but define it and mark its successive phases. They are a mere record of it… the progessive rights which men and peoples enjoy are the result much less of those texts than of the human progress to which they bear witness.14
How far back do we go? Pharaoh’s enslavement of Jews? Roman conquest and enslavement? Millennia’s of exploited labour of untouchables? How or should we remedy history? Human suffering and cruelty has been very real. It has also given us prophets and poets – to lighten our burdens, give solace, wisdom and recognition of injustice. Opposition to injustice has given birth to new religions, philosophies and revolutions. Response to injustice; shaped history itself. Our modern human rights were borne out of aspiration and human bloodshed.
Senegalese President Wade has argued the demand for reparations trivialized the impact of slavery by suggesting it could be compensated with money. Minow wrote of the “inappropriateness of putting a value on losses from mass atrocity.”15 In the materialist West, we tend to treat most everything as a commodity. That we should place it on history is a questionable proposition.
There is little argument that slavery has attained the force of a jus cogens norm, like torture or genocide. “States generally possess the universal jurisdiction to define and punish violations of those basic rights.”16 The Durban Conference defined the transatlantic slave trade as a “crime against humanity.” However, as Max du Plessis notes, ILC Articles on State Responsibility provide, “…even when a new peremptory norm…comes into existence…this does not entail any retrospective assumption of responsibility.”17 This does not, however, preclude the moral or political argument that States should make reparation for the harm and damage of historical conduct.
The United Nations and its bodies reflect the sensitivity of the contentious and divisive nature of the issue. The Report of the Working Group of Experts18 (January 2008) contains comments by Salih Booker that “globalization was a process that started with the transatlantic slave trade and colonialism,” that “Africa was invisible” and “Durban represented an historic international consensus on how best to combat racism.” The report noted there was concern the issue of reparations would “divide the work” of the Group and it was not mentioned in the Recommendations. The Independent Eminent Experts19 (February 2004) make no reference to reparations. Nor did the General Assembly, in Resolution (61/149)20 acknowledging Durban “is on equal footing with the outcomes of all major United Nations conferences” (22), the primary responsibility for implementation lies with States (24), deciding to convene a review conference of Durban in 2009 and requesting the HRC to “formulate a concrete plan” (33).
Max du Plessis identifies three aspects of reparation – restitution, compensation and satisfaction.21 The first is of limited application because of the sheer scale of slavery and that it took place over several centuries. One possibility might include restoring by return to African states of treasure and artworks. The second is likely the most contentious as it appears based on compensatory theory and payment of monetary damages. This aspect has received the most discussion around its complexity and the enormous amounts potentially involved. It is particularly political. The third involves form of apology and recognition of “legitimizing” the victims’ history. Non-monetary relief is important as a broader goal of reconciliation for Africa and its descendants.
President Johnson identified:
the devastating heritage of long years of slavery…of oppression, hatred, and injustice. For Negro poverty is not white poverty…there are differences – deep, corrosive, obstinate differences – radiating painful roots into the community, and into the family, and the nature of the individual. These differences are not racial differences. They are solely and simply the consequence of ancient brutality, past injustice, and present prejudice. They are anguishing to observe. For the Negro they are a constant reminder of oppression.22
Max du Plessis suggests “the only plausible approach then to reparation…is a political one built on moral argument.”23 He refers to it as the incentive of a “global moral economy.” This envisages more than an apology or expression of regret. It contemplates a genuine recognition of the impact of slavery and colonialism. It calls for pragmatism and financial assistance to address the contemporary economic and social needs of those affected by historical factors, including racial inequality. This view postulates an appeal for assistance under the “right to development.” It emphasizes an acknowledgment of responsibility by the West in empowering the peoples of Africa – here and now.
This approach addresses the impact of slavery and racial discrimination of colonialism without attributing blame and finding wrong. It may even involve an element of hypocrisy and appeasement of Western sensibilities. It does, however, avoid uncertain, if not nearly impossible legal arguments and political resistance to formal reparations. It is also in the West’s self-interest to provide financial assistance, under whatever pretext, to Africa and the African “diaspora.” It is necessitated to develop and preserve peace, stability, economic, and political progress. Failure to address these issues fosters conflicts, wars and terrorism. The West is not immune to the impact of these risks. They have and will come to our doorstep. We have no choice.
Development and technical aid, with debt cancellation, on a massive scale to address the human dimensions of poverty and “winning the war against humiliation”24 of slavery and colonialism are also moral imperatives in an age of where democracy, equality and human rights are held up as obligations and rights.
4. Lord Anthony Gifford, The Legal Basis of the Claim for Reparations (1993), reproduced in Max du Plessis, Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery, Human Rights Quarterly 25 (2003), p. 631.
10. Johnson v. MacAdoo, 45 App. D.C. 440 (1916), source Charles Ogletree, Repairing the Past: New Efforts in the Reparations Debate in America, Harvard Civil Rights-Civil Liberties Law Review, Vol. 38:1, p. 13.