The Legal Basis of the Claim for Slavery Reparations
By Anthony Gifford
"Reparation," according to the Shorter Oxford Dictionary, means "the action of making amends for a wrong done; amends; compensation." In international law, it means that when a country has committed an international crime such as the invasion of another country or the genocide of a people, it must make amends to the victims, including the descendants of the original victims who still suffer from the consequences of the crime.
The slavery system in the Americas was one of the most abominable international crimes in history. No amends have ever been made, nor even an apology offered. Only the slave owners received compensation, for the loss of their property.
A movement has begun in Africa, Britain, and the United States for reparations to be paid to Africans for the crimes of the slavery system. I believe that the claim is well founded in international law. It is a vast concept, raising difficult issues such as: Who should claim? Against whom? For what amount? In what court? Some find these questions so daunting that they conclude that the idea of reparations is fanciful.
But with imagination and legal creativity, the reparations claim can be formulated, recognized, and eventually vindicated. This article attempts to conceptualize the legal framework for the claim, by reference to seven propositions.
The Enslavement of Africans Was a Crime Against Humanity
The Charter of the Nuremberg Tribunal defined crimes against humanity as "Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population . . . whether or not in violation of the domestic law of the country where perpetrated."
International lawyers believe that the Charter did not create new law but declared and developed concepts of international criminality that had become accepted over time.
In 1948, the United Nations promoted the Convention on the Prevention and Punishment of the Crime of Genocide. "Genocide" includes deliberately inflicting on a racial or ethnic group "conditions of life calculated to bring about its physical destruction in whole or in part." The Convention gave new legal form to an old concept in international law.
Historians can show without difficulty how the invasion of African territories, the mass capture of Africans, the horrors of the middle passage, the chattelization of Africans in the Americas, and the extermination of the language and culture of the transported peoples constituted a continuing crime against humanity.
International Law Recognizes That Those Who Commit Crimes Against Humanity Must Make Reparation The right to reparation is well recognized in international law. It was defined by the Permanent Court of International Justice in 1928. George Schwarzenberger, in his book International Law (1953), described the recognition of the right to reparations as an evolving process: "International judicial institutions have slowly groped their way towards the articulate formulation of the rule that the commission of an international tort entails the duty to make reparations." Much of the case law on reparations concerns compensation for specific losses such as the destruction of private property. But the principle is just as valid in the case of illegal actions on a larger scale that affect entire peoples:
- In 1952, the Federal Republic of Germany reached an agreement with Israel for the payment of $222 million, following a claim by Jews who had fled from Nazi-controlled countries. Much later, in 1990, Austria made payments totaling $25 million to survivors of the Jewish Holocaust.
- Japan has made reparations payments to South Korea for acts committed during the invasion and occupation of Korea by Japan in World War II.
- The UN Security Council passed a resolution binding in international law, requiring Iraq to pay reparations for its invasion of Kuwait.
In these cases, states have pursued claims on behalf of their injured nationals against other states that have violated international law.
There is a second category, where a state has accepted the responsibility to make restitution to groups of people within its own borders, whose rights had been violated by previous administrations in that state:
- In 1988, the United States government passed the Civil Liberties Act, in order to make restitution to Japanese Americans with respect to losses resulting from their internment and ill-treatment at the hands of U.S. authorities during World War II. A commission was set up to investigate individual claims. A total of $1.2 billion, averaging about $20,000 per claimant, was paid.
The Act began by stating the basis for reparations in terms that could be adapted with great relevance to the claims of African peoples.
The purposes of this Act are to:
(1) Acknowledge the fundamental injustice of the evacuation, relocation and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II;
(2) Apologize on behalf of the people of the United States . . .
(3) Make restitution to those individuals of Japanese ancestry who were interned . . .
(4) Make more credible and sincere declarations of concern by the United States over violations of human rights committed by other nations.
So far, the examples have all been of fairly recent violations, but steps are being taken in many countries to recognize the rights of indigenous peoples whose land was plundered and occupied and whose ancestors were killed and humiliated. Generally, the measures have been woefully inadequate, given the scale of the atrocities committed. One exception are the Maoris of New Zealand, who have won significant advances:
- In November 1995, Queen Elizabeth personally presided over the signing of the Waikato Raupatu Claims Settlement Bill, giving reparation for the seizure of Maori land by British colonists in 1863. Land was handed back; $40 million (U.S.) was paid in compensation; and the bill embodied a fulsome apology for the wrong done.
There Is No Legal Barrier Preventing the Claim for Reparations
The New Zealand case is an example of a claim by the descendants of the original victims; they suffer from the loss of their ancestral land and the dislocation of their social fabric. Similarly, an order under the British Foreign Compensation Act of 1950 allowed claims by an applicant who is the owner or "the successor in title of such owner."
Claims have been made not only by descendants but by the nation state that had to bear the burden of paying for the consequences of the crime. As noted above, Israel successfully claimed reparations from West Germany, even though the State of Israel did not exist at the time when the Nazi regime committed its crimes against the Jews. Thus, African and Caribbean governments could, if they chose, make similar claims on behalf of their peoples.
The Claim Would Be Brought on Behalf of All Africans, in Africa and in the Diaspora, Through an Appropriate Representative Body
Who would be the "Plaintiffs" in a claim for reparations? All Africans on the continent of Africa and in the Diaspora who suffer the consequences of the crime of mass kidnap and enslavement have an interest in it. The impoverishment of the nations of sub-Saharan Africa, which has led to so much famine, disease, and underdevelopment, has among its major causes the devastation caused by the slave trade. It is true that a minority of Africans collaborated with the slave trade and prospered as a result; but that should not undermine the overall truth that the rape of Africa was the responsibility of the European nations that established and promoted the trade.
Who should process the claim on behalf of so many? This is a matter that transcends national governments. Many African governments have been unfit representatives of their peoples. Even so, governments are the chief implementers of social policy and are responsible for the repayment of the foreign debts that have become a new kind of shackle. African Americans, African British, French Africans, and others who are in a minority have no government that can speak for them.
Some form of appropriate, representative, accountable, and trustworthy body is required. Its size and composition, and the mechanisms for setting it up, will become clearer as the movement for reparations develops. A start has been made with the Group of Eminent Persons on Reparations (GEPR), set up by the Organization of African Unity in 1992. (The late Chief Abiola of Nigeria was the chairman; Ambassador Dudley Thompson is rapporteur; Professors Ali Mazrui and Ade Ajayi, former President Pereira of Cape Verde, Graca Machel, and Miriam Makeba were among the first members of the GEPR.)
Claims Would Be Brought Against the Governments of Those Countries That Promoted and Were Enriched by the Slave Trade and the Institution of Slavery
Who would be the "Defendants"? Here it is appropriate to concentrate on the governments of the countries that fostered and supported the slave trade, legitimized the institution of slavery, and profited as a result.
An alternative approach would be to identify the companies and families who have made vast profits from slavery. There are plantation owners in Jamaica and titled families in England whose living heirs owe their wealth to slavery. This approach, however, would create more problems than it solved. Reparation is more about collective responsibility than hereditary guilt. But there are cases where individual works of art, now in a private collection, were originally obtained in the course of invasion or looting in Africa. Here the international law concept of restitution could be applied, restoring treasures to the country that most closely represents the people from whom they were originally stolen. Historians will advise as to which countries profited most from slavery and the slave trade. The major European maritime trading nations and colonizers can be easily identified, as can the United States, a country that grew rich on slave labor and the exploitation of African Americans. It may be significant that the U.S. government has been groping toward an apology for the wrongs done to African Americans over history. Once you make an apology, you have at least a moral responsibility to do something to atone for the wrong.
The Claim Amount Should Be Assessed by Experts in Each Aspect of Life and in Each Region Affected by the Institution of Slavery
The assessment of what should be claimed is perhaps the most pressing and onerous task to be faced by the reparations movement. Each affected country will have to be studied. Different considerations would apply to people of the African continent, people of the now independent countries where slavery flourished, and the people who are minorities in Europe or the Americas.
For instance, on the African continent, flourishing civilizations were destroyed; ordered systems of government were brought down; millions of the strongest young citizens were forcibly removed; and a pattern of depopulation, poverty, and underdevelopment resulted. In the Americas, the slavery system gave rise to poverty, landlessness, underdevelopment, the crushing of culture and language, loss of identity, inculcation of inferiority among black people, and the indoctrination of whites into a racist mindset. All of these factors continue to this day to affect the prospects and quality of black people's lives.
The damage may be classified and researched under different headings: economic, cultural, social, psychological, to name a few. To put monetary figures on any of the elements of the claim raises difficult questions. How do you assess the value of the loss to an African people of the young people who were kidnapped and transported 200 years ago? What figure can be placed on the psychological damage inflicted by the process of dehumanizing a people on the grounds of their race and color? Can it be proved that the slave trade, and the colonial invasion that protected it, destroyed flourishing African civilizations? If so, how is their value to be measured? What kind of restitution is appropriate for the Africans of the Diaspora? Should there be forms of reparation other than money, such as resettlement programs; cancellation of debt; the return of precious artifacts? How and to whom should reparations be paid?
The process of researching and answering these questions could have a value beyond the calculation of figures. It could be an educational process, even a healing process, for Africans and non-Africans alike. The more that the details of the slavery system and its consequences are exposed, the more understanding there will be of the justice of the reparations claim.
The Claim, If Not Settled by Agreement, Would Ultimately Be Determined by a Special International Tribunal Recognized by All Parties
There is at present no court that would be competent to hear a claim for reparations. The settlement of such claims would require a new mechanism commensurate with the uniqueness and vastness of the issues.
At this stage it is premature to consider the composition of any commission or tribunal that might ultimately adjudicate the claim. The adjudicating body would carry authority only if it had been set up with the concurrence of all interested parties through international recognition of the justice of the claim. This, in turn, demands a massive effort in educating and mobilizing public opinion.
The Way Forward
The GEPR got off to a good start. In April 1993, it organized the First Pan-African conference on Reparations in Abuja, Nigeria. The conference drew participants from across Africa, the U.S., the Caribbean, Brazil, and Britain. Its success owed much to the commitment of the GEPR Chairman, Chief M.K.O. Abiola, and Rapporteur, Dudley Thompson, Jamaican ambassador to Nigeria.
Three months later, the elections that would have made Chief Abiola president of Nigeria were aborted by the Nigerian military. Chief Abiola had pledged to raise the issue of reparations before the United Nations. His downfall may well have been connected to his espousal of such an unpopular cause. He was later imprisoned and died in custody. Dudley Thompson returned to Jamaica.
Organizations in the U.S. and Britain have kept the message alive. I am more familiar with British efforts in this regard, i.e., the African Reparations Movement. In 1996, I initiated a debate on the issue in the House of Lords. The British government was forced to put on record its response to the claim for reparations. Its spokesman, Lord Chesham, asserted that there was no evidence that the effects of slavery are still being felt by Africans living today.
I said in my presentation that "today's governments are not guilty of fostering the slave trade. But they would be irresponsible if they did nothing to remedy the injustice, the suffering, the poverty and the racism, which the slave trade and the institution of slavery inevitably engendered into the present day."
There remains much to be done before the case for reparations is really on the global agenda. It is a task in which lawyers can make a significant contribution. Lawyers, historians, social scientists, political scientists, community leaders, and all people of good will of all races who perceive that the crime of slavery was a monstrous evil for which atonement and reparation are long overdue are a part of the panoply of forces that will be needed in this effort.
Anthony Gifford practices as a barrister in England and as an attorney in Jamaica and specializes in human rights issues.