The legal basis of the claim for Reparations
By Lord Anthony Gifford, British Queens Counsel and Jamaican Attorney-at-Law
A paper Presented to the First Pan-African Congress on Reparations, Abuja, Federal Republic of Nigeria, April 27-29, 1993
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i. Introduction
1. The enslavement of Africans was a crime against humanity
2. International law recognises that those who commit crimes against humanity must make reparation
3. There is no legal, barrier to prevent those who still suffer the consequences of crimes against humanity from claiming reparations, even though the crimes were committed against their ancestors
4. The claim would be brought on behalf of all Africans, in Africa and in the Diaspora, who suffer the consequences of the crime, through the agency of an appropriate representative body
5. The claim would be brought against the governments of those counties which promoted and were enriched by the African slave trade and the institution of slavery
6. The amount of the claim would be assessed by experts in each aspect of life and in each region, affected by the institution of slavery
7. The claim, if not settled by agreement, would ultimately be determined by a special international tribunal recognised by all parties
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Introduction
I am a lawyer who has striven for human rights and justice in many parts of the world. Much of my work has concerned the manifold injustices which are caused by the evil of racism. Especially, I have stood in solidarity with Black people in Britain in their bitter and continuing struggle for equal rights, and with the liberation movements of Mozambique, Angola, Guinea-Bissau, Zimbabwe, Namibia and South Africa, in the still unfinished cause of complete African liberation. I now live and practice law in Jamaica.
I believe that the cause of Reparations to Africa and Africans in the Diaspora is rooted in fundamental justice - a justice which over-arches every struggle and campaign which African people have waged to assert their human dignity. For the iniquities perpetrated against African people today - whether in South Africa by the apartheid regime, in Mozambique and Angola by terrorist forms of de stabilisation, in Britain and the USA by racist attacks and by systems of discrimination - are the continuing consequences, the damages as lawyers would say, flowing from the 400-years-long atrocity of the slave system.
For me as a lawyer it is essential to locate the claim for Reparations within a framework of law and justice. If this were merely an appeal to the conscience of the White world, it would be misconceived. For while there have been many committed individuals and movements of solidarity in the White world, its political an economic power centres have evidenced a ruthless lack of conscience when it comes to Black and African peoples.
But in my experience progress has been made when the powers that rule in the white world have been compelled to recognise that the rights of non-white peoples are founded in justice. It is then that forms of legal redress, which may not have existed before, have been devised.
For example, it used to be perfectly legal in Britain, only 25 years ago, for landlords or employers to put up notices which said "VACANCIES - NO COLOUREDS". Today any employer who discriminates on racial grounds can be required by a Tribunal to pay compensation.
At an intentional level, apartheid in South Africa used to be regarded as an internal affair, however regrettable. But over the years apartheid became recognised as a crime against humanity and a threat to peace, so that international sanctions could be imposed.
This is not to say that the achievement of legal sanctions brings automatic justice. This has not happened either in Britain or South Africa. But these examples show that the demand for justice and legality is an essential element in the struggle for a just cause.
So it is with the claim for Reparations. Indeed, once you accept, as I do, the truth of three propositions
a. That the mass kidnap and enslavement of Africans was the most wicked criminal enterprise in recorded human history,
b. that no compensation was ever paid by any of the perpetrators to any of the sufferers, and
c. that the consequences of the crime continue to be massive, both in terms of the enrichment of the descendants of the perpetrators, and in terms of the impoverishment of Africa and the descendants of Africans then the justice of the claim for Reparations is proved beyond reasonable doubt.
Those who may say that that is all very true in theory, but that in practice there is no mechanism to enforce the claim, or no willingness of the white world to recognise it, I would answer with a Latin legal maxim: ubi jus, ibi remedium: where there is a right, there must be a remedy. An injustice without a remedy is abhorred by lawyers like a vacuum is abhorred by nature. Once the claim is well-founded in legal principle, and well-recognised by the international community, remedies and mechanisms will be fund.
Even so, given the unique, massive and multi-faceted nature of the claim, international jurists will be needed who can show corresponding creativity and imagination. International la- has never been static. New structures have often been devised to give effect to recognised principles. The Nuremberg War Crimes Tribunal is an example of new legal thinking which brought a measure justice following the atrocities f Nazism. The International Court of Justice, where states could settle disputes with each other by law rather than by war, was unknown at the start of this century.
This paper is an attempt to conceptualise a legal framework for the formulation and prosecution of the claim for Reparations.
It is argued by reference to seven fundamental propositions.
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1. The enslavement of Africans was a crime against humanity
The Charter of the Nuremberg Tribunal defined crimes against humanity in these words:
"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 here perpetrated"
The Charter also gave jurisdiction to the Tribunal to try cries against Peace ('planning, preparation, initiation or waging of a war of aggression...'), and War Crimes ('violation of the laws and customs of war... including murder, ill-treatment, or deportation to slave labour or for any other purpose of civilian population of or in occupied territory..')
It is considered by international lawyers that the Nuremberg Charter did not create new law, but declared and confirmed concepts of international criminality which had been accepted over centuries. As one writer puts it:
"The tribunal found that acts so reprehensible as to offend the conscience of mankind, directed against civilian. populations, are crimes in international law"
D.P.O'Connell, International Law for Students
In 1948 the United Nations promoted the Convention of the Prevention and Punishment of the Crime of Genocide. It has been ratified by most countries in the world. Again, the Convention was giving a new legal form to an old concept in international law. The preamble to the Convention recognised that "genocide is a crime against international law", and that "at all periods of history genocide has inflicted great losses on humanity. Genocide was defined:
"Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part..."
Historians and their experts can show without difficulty how the invasion of African territories, the mass capture of Africans, the horrors of the middle passage, the chattelisation of Africans in the Americas, the extermination of the language and culture of the transported Africans, constituted violations of all these international laws.
The argument that such crimes were 'legal' under European law, an accepted as normal most Europeans, would be unavailing. Europeans did not, then or now, constitute all mankind, and the conscience of all decent mankind must always have been outraged by the atrocities which Europeans inflicted on Africans over 400 yeas.
Indeed it can be said that it was the ultimate crime against humanity, to deny human status to a vas section of humankind.
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2. International law recognises that those who commit crimes against humanity must make reparation
The right to reparation is well recognised in international la. It has been defined by the Permanent Court of International Justice (the predecessor of the International Court of Justice) in these terms:
"The essential principle contained in the actual notion of an illegal act - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law." Chorzow Factory Case, Germany v Poland, 1928
The leading textbook on international law by Schwarzenberge described the recognition of the right to reparation as a process:
"International judicial institutions have slowly groped their way towards the articulate formulation of the rule that the commission of an international tort (wrong) entails the duty to make reparations."
Most of the case law on reparations concerns the compensation for specific losses such as the destruction of property, buildings, ships etc. But the principle is just as valid in the case of illegal actions on a larger scale which affect whole peoples. Indeed there are direct precedents for the payment of reparations in such cases:
* In 1952, the Federal Republic of Germany reached agreement with Israel for the payment of $222 million, following a claim . Israel which was limited to the costs of resettling 500,000 Jews who had fled from Nazi controlled countries. Much later, in 1990, Austria made payments totalling $25 milllion to survivors cf the Jewish holocaust.
A number of agreements have been made under the British Foreign Compensation Act of 1950; lump sum settlements were made by Bulgaria, Poland, Hungary, Egypt and Rumania, and a Tribunal was set up to make awards from the sums made available, so as to do justice as between many thousands of claimants whose property had been expropriated. A US-Iran Claims Tribunal was set up in 1981 for a similar purpose.
Japan has made reparation payments to South Korea for acts committed during the period of invasion and occupation of Korea by Japan
Most recently, the United Nations Security Council has passed a resolution, binding in international law, requiring Iraq to pay reparations for its invasion of Kuwait.
It is therefore clear that the concept of reparations is firmly established and actively pursued by states, on behalf of their injured nationals, against other wrongdoing states.
In addition, one can identify a second category of reparations which is of great relevance. This is where a state has accepted the responsibility to make restitution, not just to other states, to groups of people within its own borders whose rights had bee. violated.
In 1988 the United States Congress passed the Civil Liberties Act, which was designed to make restitution to Japanese Americans in respect of losses brought about by "any discriminatory act of the US Government...based upon the individual's Japanese ancestry during the wartime period when Japanese Americans were interned in great numbers. A Commission was set up to investigate' claims. A total of $1.2 billion, or about $20,000 for each claimant, was paid. The Act began by stating the basis for reparations in clear terms which could be applied with the greatest 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 US citizens and permanent resident aliens of Japanese ancestry during World War II;
(2) Apologise on behalf of the people of the US
(4) Make restitution to those individuals of Japanese ancestry who were interned...
(7) Make more credible and sincere any declaration of concern by the US over violations of human rights committed by other nations."
* Similar provision was made for restitution to the Aleut residents of various Alaskan islands "in settlement of US obligations in equity and at law, for injustices suffered and unreasonable hardships endured while those Aleut residents were under US control".
Some steps have been taken to recognise the rights to restitution of indigenous peoples whose land was plundered and occupied, and whose people were decimated, especially in the United States, Canada, and Australia. Each of these countries
have made land rights settlements and/or financial payments to indigenous peoples. These are woefully inadequate gestures, given the atrocities committed in those countries against indigenous peoples. But they represent some recognition that the surviving generations of indigenous peoples have the right to a measure of reparation for the crimes committed against their ancestors.
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3. There is no legal, barrier to prevent those who still suffer the consequences of crimes against humanity from claiming reparations, even though the crimes were committed against their ancestors
Whether the descendants of the immediate victims of a crime have a right to reparations, will depend on the nature of the claim being made. The US payments to Japanese Americans were aimed at making restitution for the suffering of those actually interned. The Austrian payment was to survivors of the concentration camps, again to make reparation for the physical and mental agony of the concentration camps. If a victim died before the claim were agreed, his claim died with him, since the pain and suffering were personal to him.
But there are many cases where the consequences of the crime committed are visited upon descendants. Where property has been expropriated, the loss is suffered not merely by the then owner, but also by his descendants who have lost an inheritance which would otherwise have been theirs. In such cases, international law gives a remedy, even if the claimant was not born at the time of the expropriation.
For example, the Order made under the British Foreign Compensation Act of 1950 provided that the Foreign Compensation Commission should treat as established any claim relating to certain property in Egypt which had been sequestrated by the Nasser government if the applicant was the owner "or is the successor in title of such owner", making it plain that the children and the grandchildren of the original dispossessed owners were entitled to claim.
More recently, since the unification of Germany, claims have been pressed successfully by the sons and daughters of property owners whose lands were seized after the German Democratic Republic was set up. No one doubts their right to claim, even though they may have been children, or even unborn, when their family's land were taken over.
Claims have been made not only by descendants, but by the nation state which has had to bear the burden of paying for the consequences of the crime. As noted above, Israel successfully claimed reparations from West Germany for the costs of resettling Jewish refugees - even though the state of Israel did not exist at the time when the Nazi regime committed its crimes against the Jews. It is also significant that West Germany, which felt obliged to meet the claim, was also a different state, territorially as well as politically, from the German Reich which was responsible for the atrocities.
In principle, therefore, the passage of time since slavery ended is no barrier to the claim of African peoples, provided that it can be pro-led that the consequences of the crime of slavery continue to manifest themselves to the prejudice of Africans now living in Africa and the Diaspora. On this point, the evidence of historical experts is clear and unequivocal.
On the African continent, flourishing civilisations were destroyed; ordered systems of government were mashed up; millions of citizens were forcibly removed and a pattern of poverty and underdevelopment directly resulted, which now affects nearly every resident of Black Africa. In the Americas, the slavery system gave rise to poverty, landlessness, underdevelopment, as well as to the crushing of culture and language, the loss of identity, the inculcation of inferiority among Black people, and the indoctrination of whites into a racist mindset - all of which continue to this day to affect he prospects and quality of Black People's lives in the Caribbean, USA, Canada and Europe.
While there is no limitation period in international law, unreasonable delay could be a reason for refusing a claim. A sate which had a just claim, but which failed to advance it over a long period, could be held to have acquiesced in the wrong or to have waived its right to claim reparations.
However, no objection along these lines could properly be made against the claim of Africa and Africans in the Diaspora. In the case of Africa and the Caribbean region, the period of slavery and the slave trade was followed by the period of colonialism. It can be argued that colonialism itself was a crime in international law, for it was a usurpation, imposed by force, of the rights of the colonised peoples to their sovereignty. It was at the very least a crime against peace, and in most if not all colonised territories, crimes against humanity were frequently committed. In the case of the United States, former slaves were subjected to a system of exclusion, separate development, racial persecution, civil rights denials and ghettoisation, which has only in part been overcome in the recent years following the civil rights movement.
The important point is that African peoples, until recently, had no independent voice, nor even any status in the world community. How could, the people of, say, Ghana or Jamaica make a claim for reparations when their country was considered to be an 'overseas possession of the very country whose people had kidnapped and enslaved their ancestors? Still less were African-Americans, as they struggled for the right to be recognised as citizens, in any position to make any claims - even if there was any international forum in which a claim could be brought, which there was not.
Even after the independence of African nations from colonialism, the shackles of neo-colonialism have fettered the power of African governments to speak with any real independence against their former conquerors. It is by no means unreasonable or surprising that it has taken some 30 years since formal independence for a claim for reparations to be voiced. Indeed I would argue that no, as never before, is the right time for this claim to be made, as African leaders are speaking with a new confidence and operating in new democratic structures.
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4. The claim would be brought on behalf of all Africans, in Africa and in the Diaspora, who suffer the consequences of the crime, through the agency of an appropriate representative body
So far I have been dealing with the legal basis for the reparations claim. The last. four sections deal with questions which a legal analyst is bound to raise, however difficult it is to answer the:
* Who are to be the Plaintiffs, or claimants for reparations?
* Who are to be the Defendants against whom the claim is made?
* What are the damages to be claimed?
* In what court is the claim to be made?
Here we sail into uncharted waters, since no claim for reparations of this magnitude has ever been brought. Hundreds of millions of people, in different continents of the world, have an interest in this claim. Their losses may seem almost impossible to quantify. Some minds are so daunted by the practical problems involved that they conclude that the claim is unrealistic.
I do not hold any such defeatist view. Once the first three propositions are accepted as valid, and the right to reparations is seen to be soundly established in international law, then ways of doing justice can and will be found. Difficulties of scale or procedure should not be obstacles to justice. The unwillingness of the white world to consider the claim is not a reason for giving it up, but rather a spur to mobilising awareness and support around the issue.
However, in addressing these questions I seek to identify the principles involved, rather than to furnish precise answers, which can only be developed over time and experience, and after deep study.
Who are the claimants for reparations? The broad answer is that all Africans, on the continent Or Africa and in the Diaspora, who suffer the consequences of the crime of mass kidnap and enslavement, have an interest in this claim. I am opposed to any divisiveness in the formulation of the claim. If, for example, we plan for an Africans-on-the-Continent claim and a separate Africans-in-the-Diaspora claim, we will already have begun to splinter into fractions.
All Africans around the world] have been affected in some way by the crime of slavery. Even those who have succeeded in a business or a profession have had to face racial prejudice at the least. And while there may be some whose families enriched themselves by collaboration with the slavers, that should not be allowed to undermine the overall truth that the rape of Africa impoverished all Africans, both those who were taken and those who were left behind.
Who should process the claim on behalf of so any? This is a matter which transcends national governments - but governments are the chief implementers of social programmes, as well as being responsible for the repayment of their country's foreign debt. They should neither be excluded from, nor have sole control over, the prosecution of the claim. In any case, African-Americans, African British, French Africans, and others who are in a minority in the country where they have settled, have no government which could speak for them.
Some form of appropriate, representative and trustworthy body will be required; its size and composition, and the mechanisms for setting it up, will become clearer as the movement for reparations develops.
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5. The claim would be brought against the governments of those counties which promoted and were enriched by the African slave trade and the institution of slavery
Who is responsible for paying reparations? Here it is more appropriate to concentrate on the Governments o the countries which. fostered and supported the slave trade, which legitimised the institution o slavery, and which have profited as a result.
It would be possible to identify individual companies which could be proved to have made vast profits from slavery. There are plantation owners in Jamaica, and titled families in England, whose living heirs owe their wealth to slaving. Should such companies and families be targeted as individual Defendants to a reparations claim?
In my view such an approach would create more problems than it solved. Enormous research would be needed to identify the companies and families, to determine how much money was made y their ancestors, and to calculate how much should be forfeited y the present shareholders or family members. The process would inevitably be somewhat arbitrary, and potentially oppressive, and it would be rejected both by the targets themselves and their governments
I would however make one exception, when it can be proved that a work of art or an artefact, now in a public or private collection, was originally obtained illegally in the course of an invasion or plundering exercise in Africa. In this one case, the international law concept of restitution in kind could be applied. The reparation process must include the restoration of identifiable treasures to the country which most closely represents the people from whom they were robbed.
In reality in these cases of restitution, the individual owner would lose the work of art, but would most probably receive compensation for its value from his own government. This is because the restitution would have been made with the co-operation of the relevant European or other government; and it is a normal principle that compensation must be paid when private property is taken away by act of a government.
The reasons why the 'Defendants' to the reparation claim should be governments, are in my view that it is governments which have some measure of control over their national wealth, through their reserves and their taxation powers; it is governments who must in the end be persuaded that reparations are to be paid as a matter of justice; it is governments who can determine whether Africa's debt burden should be unladen from its shoulders; and it is governments which are responsible for making international treaties and implementing them through the passage of laws.
Historians will advise as to which countries have profited most from slavery and the slave trade. The major European maritime trading nations and colonisers can be easily identified. So can the United States, as a country which grew rich on slave labour an the exploitation of African Americans. However, as the next section indicates, the assessment and evaluation of responsibility will be a vast undertaking.
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6. The amount of the claim would 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, and perhaps even each people with each country. Different considerations will apply to the peoples of the Africa continent; the peoples of the now independent countries where slavery flourished; and the people who are now minorities in Europe or North America.
The damage may be classified and researched under different headings. There is economic damage, cultural damage, social damage/ psychological damage. To put monetary figures on any of the elements of the claim raises questions to which I have no answers: how do you assess the value of the loss to an African people of a young person, kidnapped and transported over 200 years ago? What figure can be placed on the psychological damage inflicted by a system which is still deeply racist? Can it be proved that the slave system destroyed old and flourishing African civilisations, and if so, how is their value to be measured? What level of restitution is appropriate for the African peoples of the Diaspora?
Another approach, perhaps to be adopted in parallel, is to measure the amount by which various European nations were directly enriched by the institution of slavery. In the Report of the Inquiry into Racism in Liverpool, which I conducted in 1989, I quoted the historian Ramsay Muir, who wrote in 1907. He described the slave trade as '"The pride of Liverpool", for it flooded the town with wealth which invigorated every industry, provided the capital for docks, enriched and employed the mills of Lancashire, and afforded the means of opening out new and ever new lines of trade. beyond a doubt it was the slave trade which raised Liverpool from a struggling port to be one of the richest and most prosperous trading centres in the world."
Similar evidence could be uncovered about Bristol, London, Bordeaux, and many other ports. And naturally the wealth generate through the ports spread into the whole country. But here too, even if the general picture is clear, the detailed evaluation is not easy. Is it possible to work out the amount of profits which poured into the ports of Europe? If so, how should that amount be translated into present-day money? Is the process any easier in the case of North America and the Caribbean, in relation to the profits of the plantation-owners?
Fortunately there are many seekers after truth who are trying to find answers to all these questions through careful research. Any figures put on the Various elements of the reparations claim will at best be estimates made from a basis of sound historical research. However the research process itself will have a value far beyond the calculation of figures. It will be an educative process through which the horrors of the past will be re-examined. The more the details of the slave system and its consequences aer exposed, the more understanding there will be, among African people and white, of the justice of the reparations claim.
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7. The claim, if not settled by agreement, would ultimately be determined by a special international tribunal recognised by all parties
There is at present no court which would be competent to hear a claim for Reparations for Africa and Africans in the Diaspora. The International Court of Justice is competent to hear claims by one state against another for breaches of international law. But this claim is on a much vaster scale than a claim between states. It would need a new mechanism, commensurate with the unique and massive issues of which I have spoken.
The absence of a court is no impediment to the Reparations claim. In the examples given earlier, the legitimacy of the claim was recognised and embodied in an agreement, without there having been any pre-existing tribunal to deal with the grievance. As part of the agreement a mechanism for dealing with individual claims has been established. The nature of the court which makes the binding decisions will depend on the issues at stake and the negotiations which have preceded the agreement.
For example, the agreement made between Iran and the United States for the payment of reparations set up a nine-member Commission, consisting of three American judges, three Iranian, and three from countries not involved in the dispute. It sat in three chambers of three judges, and made adjudication's on nearly four thousand claims.
At this stage, therefore, it is premature to consider the composition of any Commission or Tribunal which might ultimately; adjudicate upon the African Reparations Claim. The adjudicating body will only carry authority if it has been set up with the concurrence of all parties to the dispute. The international recognition of the justice of the claim is a condition precedent to the setting up of any judicial machinery.
This, then is the great task in which lawyers have a specific but significant contribution to make. They are only a small part of the panopoly of forces which will be needed - historians, archaeologists, artists, writers, politicians, sociologists, psychologists, and beyond them all people of good will, of all races, which perceive that the crime of slavery was a monstrous evil, for which atonement and reparation is long overdue.
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