"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.
Proposition One
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.
Proposition Two
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:
- 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;
- Apologize on behalf of the people of the United States . . .
- Make restitution to those individuals of Japanese ancestry who were interned . . .
- 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.
Proposition Three
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.
Proposition Four
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.)