DECEMBER 1999 
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      SLAVERY 
      COVER STORY   
      For whom the bell tolls
      ...the legal basis for the African reparations claim
      In April 1993, the British lawyer Lord Anthony Gifford (a Queens Counsel) who now lives in Jamaica with his Jamaican wife, presented a paper on the legal basis for the African slavery reparations claim at the first ever conference on the subject held in Abuja, Nigeria. 

      The conference was organised by the late Chief M.K.O Abiola, the president Nigeria never had.

      Lord Gifford himself is an enigma of sorts. His photo graced the cover of our last month's issue. How we got it is a story itself. 

      Because of the causes he champions, Lord Gifford appears to be disliked by his own people. Last month, we combed the whole of London trying to get an up-to-date photo of him. Not even the House of Lords press office had one.

      We tried the other big photo agencies -Reuters, Associated Press, the Press Association - none of them had a photo of the Lord who served in the House of Lords for many years, not even a file photo.

      The House of Lords press office kindly referred us to the relatively smaller Universal Pictorial Press & Agency, but what they had was a 1987 (repeat 1987) photo of him, and we couldn't use it. 

      We were finally rescued by Ian Hall, president of the Bloomsbury International Society, whose wife, Rahda Williams, had taken a photo of Lord Gifford at an event in London in 1998. That is the measure of the man who has become the foremost white supporter of the African reparations cause. 

      Below is his legal basis for the African slavery reparations claim...

      "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 destabilisation, 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-year-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 and 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: 


      - that the mass kidnap and enslavement of Africans was the most wicked criminal enterprise in recorded human history; 
      - that no compensation was ever paid by any of the perpetrators to any of the sufferers; 
      - 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 nature. Once the claim is well-founded in legal principle, and well-recognised by the international community, remedies and mechanisms will be found. 

      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 law 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 of justice following the atrocities of 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. 

      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 crimes 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, an 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 D.P. O'Connell 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".

      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 has given 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 as: 

      "Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: 
      - Killing members of the group; 
      - Causing serious bodily or mental harm to members of the group; 
      - 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, and accepted as normal by 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 years. Indeed it can be said that it was the ultimate crime against humanity, to deny human status to a vast section of humankind. 

      The right to reparation is well recognised in international law. 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." 

      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, Germany reached agreement with Israel for the payment of $222m, following a claim by 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 $25m to survivors of 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 Romania, and a tribunal was set up to make awards from the sums made available, so as to do justice to 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, but to groups of people within its own borders whose rights had been 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 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: 


      - Acknowledge the fundamental injustice of the evacuation, relocation and internment of US citizens and permanent resident aliens of Japanese ancestry during World War II; 


      - Apologise on behalf of the people of the US; 
      - Make restitution to those individuals of Japanese ancestry who were interned... 
      - Make more credible and sincere any declaration of concern by the US over violations of human rights committed by other nations." 
      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.

      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 families' 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 proved 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 the 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 state 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 countries were 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 [now 40 years] since formal independence for a claim for reparations to be voiced.

      Indeed I would argue that now, 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. 

      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 them: 


      - 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 say 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.



      Copyright © IC Publications Limited 1999. All rights reserved.