Time for Reparations

A Global Perspective

Jacqueline Bhabha, Margareta Matache, Caroline Elkins, Jacqueline Bhabha, Margareta Matache, Caroline Elkins

• Editorial: University of Pennsylvania Press
• Año: 2021
• ISBN:
  9780812299915
• Categoría: Política y relaciones internacionales
• Categoría: Derechos humanos

In this sweeping international perspective on reparations, Time for Reparations makes the case that past state injustice—be it slavery or colonization, forced sterilization or widespread atrocities—has enduring consequences that generate ongoing harm, which needs to be addressed as a matter of justice and equity. Time for Reparations provides a wealth of detailed and diverse examples of state injustice, from enslavement of African Americans in the United States and Roma in Romania to colonial exploitation and brutality in Guatemala, Algeria, Indonesia, Jamaica, and Guadeloupe. From many vantage points, contributing authors discuss different reparative strategies and the impact they would have on the lives of survivor or descent communities.One of the strengths of this book is its interdisciplinary perspective—contributors are historians, anthropologists, human rights lawyers, sociologists, and political scientists. Many of the authors are both scholars and advocates, actively involved in one capacity or another in the struggles for reparations they describe. The book therefore has a broad and inclusive scope, aided by an accessible and cogent writing style. It appeals to scholars, students, advocates and others concerned about addressing some of the most profound and enduring injustices of our time.

PART I

Addressing the Legacy of Slavery

CHAPTER 1

Reparations for Slavery: A Productive Strategy?

Makau Mutua

Introduction

Slavery negates individual autonomy and equality—both in the abstract and in substance—when a person or institution holds another human being as chattel or property.¹ Slavery is a system in which society, or a fraction thereof, applies the rules of commerce, the market, and property to human beings. It is a legal regime in which people and institutions can buy and sell human beings. In this sense, the term “slave” itself is a misnomer because it implies a certain normalcy of the condition. It shifts responsibility for slavery from the trader—the trafficker—in human beings, or the owner of the enslaved person, to the enslaved. This is an important distinction because it argues that a human being cannot be a slave per se. The fact of enslavement does not turn one into a slave. This central but fine distinction to some—in the academy and in public discourse—lies at the heart of the question of whether human beings can normatively become chattel or property.

Scholars and commentators in public discourse in the United States often use the term “slave” when referring to enslaved Africans or African Americans before the Emancipation Proclamation and the passage of the Thirteenth Amendment.² The argument here is that the law can rob people of their freedom through enslavement, but it cannot vacate their inherent and innate dignity as humans.

A person cannot be a slave as such. As an empirical matter, a person can be enslaved, but that does not vacate or nullify their inherent human dignity as a normative question. To argue otherwise is to ratify an immorality and a normative impossibility. Even those born into slavery are not intrinsically slaves but enslaved human beings. This argument sits at the core of the justification for reparations for slavery. Enslavement of human beings is a wrong that transcends all known morality. It cannot be justified as a matter of history, law, morality, or culture. That is why absolutist demands for reparations for slavery should be unarguable.

Reparations for slavery fall within a large genre of claims for compensatory and social justice for historical injustices.³ There are several famous cases in recent history of reparations for historical injustices. The first is that of persons of Japanese heritage, most of them Japanese Americans, who the United States interned during World War II on false claims of disloyalty, espionage, and sabotage on behalf of the Japanese government.⁴ The other is the compensation to Jewish victims of the Nazi-perpetrated Holocaust.⁵ A third, which is more recent and involves colonial abuses, is the British compensation for atrocities against the Mau Mau freedom fighters in Kenya (see Chapter 7, by Elkins, in this volume).⁶ In 2013, the British government expressed regret for the actions of its colonial administration in Kenya and agreed to pay £19.9 (US$30.8) million as compensation to 5,228 Kenyan claimants as “full and final settlement” for the court action.⁷ British foreign secretary William Hague told the House of Commons that “We [British] understand the pain and grief felt by those who were involved in the events of emergency in Kenya. The British government recognizes that Kenyans were subjected to torture and other forms of ill-treatment at the hands of the colonial administration.”⁸ Hague added that: “The British Government sincerely regrets that these abuses took place and that they marred Kenya’s progress to independence. Torture and ill-treatment are abhorrent violations of human dignity which we unreservedly condemn.”⁹

The language employed by Hague appeared calculated to avoid legal liability. While he does not deny the commission of torture and other atrocities, he nevertheless only “sincerely regrets” those abominations but does not “sincerely apologize” for them. The British government appeared to have been concerned that an “apology”—as opposed to an expression of “regret”—could be an admission of legal liability actionable in a court of law. It is unclear as a matter of legal interpretation whether a court of law would find such a distinction in a legal opinion. Even so, Hague vowed that the Kenyan settlement did not set a precedent and that the British government would defend claims from other British colonies.

It is notable that the British government only settled the Mau Mau claims in a suit that the Kenya Human Rights Commission and the Mau Mau War Veterans Association brought in the United Kingdom. A British court rejected the government’s arguments that the statute of limitations barred the claims and that there would be “irredeemable difficulties” in obtaining evidence and availing witnesses.¹⁰ The court also dismissed the British government’s attempt to shift the burden for any compensation to the government of Kenya by arguing that any responsibility for colonial atrocities had passed to the government of independent Kenya in 1963.¹¹ At a public ceremony on September 12, 2015, at Uhuru Park in Nairobi, the British high commissioner, Christian Turner, spoke at the unveiling of the British-funded monument to the Mau Mau and other freedom fighters.¹² The Kenyan case represents the first time that a colonial power has compensated victims of colonial atrocities. More cases against other colonial powers are sure to follow. In January 2017, the Herero and Nama peoples of Namibia sued Germany through a court in New York over the 1904 genocide.¹³

There are other important reparations programs in history—some going as far back as 1872, when France paid Germany reparations after the Franco-Prussian War.¹⁴ However, the more recent cases of reparations for historical injustices include U.S. payments of monies to Native Americans and reparations for Japanese internment.¹⁵ Elsewhere, there were reparations in the form of property restitution after the Cold War to individuals from whom Soviet bloc states in Eastern and Central Europe took property.¹⁶ Beyond these cases, there have been heated and complex debates about whom should be compensated—or seek reparations—for historical injustices, and why, how, and in what form.¹⁷ This is particularly the case where positive law is lacking, or difficult to establish. But one thing seems to be clear: there is a political economy to a successful claim for compensation or reparations. Claimant groups with social capital, economic clout, and backing from powerful actors and states have met with more success. Victims of the Nazi-perpetrated Holocaust had powerful allies in Israel and the United States. Since 2017, the Me Too movement (#MeToo)—an international uprising against sexual harassment and assault—is the latest demonstration of the power of the confluence of social capital and political awakening to create accountability beyond the strictures of positive law.¹⁸ This is why accountability for past injustices need not be negated by statutes of limitation or the absence of clear positive law.

This chapter interrogates the politics, claims, and strategies for reparations for slavery for Africans, African Americans, and the larger African Diaspora. With the hindsight benefit of both the strategic successes and shortcomings that other groups deployed for reparations, the chapter explores the approaches that advocates of reparations for persons of African descent have adopted. It examines legal, political, and moral strategies as entry points for reparations. It looks at why some groups have succeeded in their quest for reparations and not others. The chapter explores legal fictions used to punt, deny, and belittle claims for reparations for persons of African descent, as well as the deficit of political will in Africa, the West, and the Arab world to come to terms with the staggering cost of the enslavement of Africans and their descendants. Finally, the chapter closes by making a case for multi-pronged strategies and approaches employing all levers of advocacy to seek reparations for people of African descent.

The Quandary of Historical Injustices

There can be little doubt that the idea of justice is historically contextual in the sense that as a civilizational value it is contingent on time and place. Whether a particular norm of justice is transcendent is a question of debate.¹⁹ Is a particular norm of justice applicable only nationally, or does it have international, or universal, purchase beyond its geographic place of origin? At what point does a narrow culturally tailored social norm become universal? Particular societies at specific historical moments construct social, moral, and legal norms. Should such a limitation matter in a question of accountability at a future date for historical injustices? How should society today address harms that did not carry social, moral, and legal liability at the time they were committed? The historical text suggests a shifting standard of accountability for past abuses and justices. Global hegemons can make new rules and apply them retroactively, even if such ex post facto rules violate longstanding legal precedents or norms. In the legal realm, the Allied powers’ legal responses to the vanquished Axis powers after World War II provide a most telling example of the creation of new norms and their retroactive application.

The 1945–46 trial at Nuremberg of major war criminals—predominantly Nazi Party leaders and military officials—not only launched the modern human rights movement but fashioned laws out of new cloth. The charter that the victors of World War II—the United States, Britain, France, and the USSR—annexed to the London Agreement established the International Military Tribunal at Nuremberg to try war criminals.²⁰ Among the innovations of the charter were the expansion of crimes and sanctions applicable to offenders for actions that did not constitute crimes at the time of their commission.²¹ For example, crimes against peace, or jus ad bellum, as opposed to war crimes, or jus in bello, were an innovation. The concept of crimes against humanity was another innovation.²² So was the application of individual criminal responsibility for a number of international crimes. There have been divergent views on these stark developments at the dawn of modern international criminal law. Some jurists, most notably U.S. Supreme Court chief justice Harlan Fiske Stone, were scathing in their disagreement with these innovations. Stone called the Nuremberg trial “an attempt to justify the application of the power of the victor over the vanquished” by dressing it “with a false façade of legality.” He called the trial a “high-grade lynching party” and a “sanctimonious fraud.”²³

The Nuremberg trials demonstrate that the international community—as represented by the hegemonic powers of the day—can rewrite existing rules to reach backward and punish a wrong. Nuremberg was easy to accept because of the gravity of the Holocaust and the atrocities of the Axis powers (although the Allied powers exempted their own grave brutalities such as the massive bombing of cities with high civilian casualties and the nuclear destruction of Hiroshima and Nagasaki). The trial’s defects and contradictions are more palatable because of its launch of the human rights movement. One can see why the Holocaust pushed the Allied powers to bend legal precedents. For one, it was an opportunity for the Anglo-Saxon tradition of the rule of law to demonstrate its superiority over Nazi barbarities at the dawn of a new international legal and political order under the leadership of the United States. For another, the punished atrocities had taken place in the heart of Europe against the Jews (and although less acknowledged and repaired, against other groups too, including the Romani people, see Chapter 14 by Ian Hancock), an influential, though long-persecuted community that had been the target of many pogroms. It is highly doubtful, as history bears out, that the West would have marshaled a similar response for atrocities against Africans. Unlike Jews, Africans did not have influential organizations such as the World Zionist Organization, or its internationally dominant leader Chaim Weizmann, who served as the first president of Israel. Weizmann convinced the United States to recognize the newly created state of Israel.²⁴

Nuremberg did something else that is helpful to those seeking reparations for people of African descent. It gave unarguable status to war crimes, crimes against humanity, and crimes against peace as the most abominable universal offenses known to man.²⁵ Genocide made it on this ignominious list soon thereafter.²⁶ The existence of positive law ex ante is not necessary for accountability for these heinous crimes and other historical abuses. As the Nuremberg trial clearly showed, global powers can will accountability ex post facto for gross abuses even where no extant law prohibited such actions. Nuremberg is a great example of a constitutional moment in which society realizes that certain abuses, though not criminalized, are so inimical to morality and decency that leaving them unpunished sets an untenable precedent. In such a situation, dispensing with the general prohibition against retroactive laws is the more plausible option. The most exceptional circumstances may dictate an expedient waiver of this particular legal formality—or an aversion to retroactivity—as was the case in Nuremberg. Actions that shock the human conscience, such as slavery, should follow suit.

There is a further question of statutes of limitations. Does the passage of time bar what can reasonably be sanctioned? In common and civil law, there are statutes of limitation or statutes of prescription to ensure the fair and effective administration of justice. Traditionally, statutes of limitation served three purposes: to ensure that a claimant or plaintiff with a valid cause of action would pursue it with diligence; to ensure that evidence did not get lost, or the defendant was still alive; and finally, to ensure that a long-dormant claim does not deny a defendant justice.²⁷ In most jurisdictions, however, the statute of limitations is inapplicable to the most heinous crimes, such as murder. The 1970 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity disallows limitations on war crimes, genocide, and crimes against humanity, including gross offenses related to apartheid.²⁸ The 1998 Rome Statute of the International Criminal Court—ratified by 127 states—provides that genocide, crimes against humanity, and war crimes “shall not be subject to any statute of limitations.”²⁹ This is a legal recognition that accountability for heinous crimes cannot be excused in spite of the passage of time, however long.

In the more recent past, there is growing recognition that particular historical injustices—colonialism, apartheid, and slavery—were so egregious that they cry out for justice. The United Nations repeatedly and annually condemned apartheid—which formally lasted in South Africa from 1948 to 1990—as a crime against humanity; and, in 1966, it declared apar...