Slavery reparations are a must: Nora Wittmann lays the legal foundation for reparations for slavery, and argues that the "legality" or illegality of transatlantic slavery must be assessed in the light of the "real" international law of the time, and not the one that Europeans have been able to put in place as a consequence of the crime.
ON 18 JUNE 2009, THE US SENATE formally passed an "apology" resolution acknowledging the "fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow laws", but was careful to also include a paragraph stating that "nothing in this resolution (a) authorises or supports any claim against the United States; or (b) serves as a settlement of any claim against the United States" to secure that no reparations claims could be based on it. While it is certainly important that the mass crime inflicted on the African people for a period of 400 years and on which the economic wealth of the West was built, is finally formally acknowledged, the Senate resolution leaves a bitter taste and puts into question the seriousness of its authors and the motives behind its passing. The reserve is however hardly surprising and in line with other "apologies" that former enslaver states have, in one form or another, presented during the past few decades. A French law passed in 2001 recognises the transatlantic slavery as a crime against humanity, but is silent on reparations.
Reparations activists like Esther Akua Stanford have rightfully qualified the hypocritical 2007 "apology" by the then British prime minister, Tony Blair, as expressing really no remorse or regret at all. Prof. Horace Campbell therefore places the VS Senate action "within a tradition of pre-emptive apologies designed to inhibit further action". While it is most probable that this is indeed the intent of such actions by former enslaver states, a thorough and unbiased examination of international law should show that they have in reality secured nothing by such hypocritical moves.
The reparations movement and activists like Lord Gifford have long been pointing to dispositions of international law as providing a legal basis for reparation claims for slavery. In the academic, political and juridical discourse of the West, these claims are usually met with non-consideration or almost-mockery, and the arguments have usually been refuted unanimously by mainstream international law scholars and jurists (who in practice control the instances and fora of international law) by invoking the principle of non-retroactivity and alleging that slavery would have been "legal" in international law at the time of the crime. The principle of non-retroactivity claims that a state can only be held responsible for a violation of international law if the norm was in force at the relevant period, and is a general principle of international law.
One of the characteristics of international law is that there is, unlike in national law, no central law-making and enforcing authority, and that its content and development are shaped out of the practice of (formally and hypothetically) equal states. It is therefore even more than internal law an arena where power moves things. But out of this game of power, rules were and are established that do count, otherwise it would hardly deserve the label "law".
That being said, it remains that to forward successfully a reparations claim that rests on a juridical, and not just a moral basis, the commitment of an internationally wrongful act is an indispensable condition. An internationally wrongful act is an act that (a) is imputable to a state and (b) constitutes a violation of an international obligation of that state. The internal legal qualification of the act is irrelevant in international law. While it is true that it does not help a matter to beautify the law, and indeed would be counter-productive, this article argues that despite the objections of non-retroactivity and pretended legality, it is well possible to make a basis for reparations claims in international law. Of course the political will to do so will have to follow as well, as always in international law where nothing moves by itself.
I have in mind two different legal strategies that may be worth exploring in international law in the struggle for reparations for slavery and the African holocaust at large. Their exploration also demonstrates the interlocking of law, social science and history, and popular cultural movements.
International law by whom?
The first approach touches the origin and development of contemporary international law itself and puts it into perspective as a product of the very crime it is called to deal with here. It shows that the reparation opponents' argument of legality and non-retroactivity is one that bites its own tail.
Europeans are and were at any given time only a global minority and could therefore not rightfully establish the rules and content of international law by themselves. In order for the argument of the pretended "legality" to work, it is usually advanced without any proof or reference that the "African political entities" of the time could not in any way be considered subjects of international law and could therefore not contribute actively to the formation of the same.
This is where the interlocking of legal assessments with the anthropological work of centuries of constructing "primitiveness" to facilitate and legitimise slavery and colonialism is fully evident. Because, if one only very briefly examines the elements of state definition required by international law and jurisprudence, and links these findings with historical facts about the political and social forms of organisation in Africa at the time of the arrival of the first European enslavers, one will without any margin of doubt see that the argument of the reparations opponents is purely fictitious.
The first theoretical concept of sovereignty over territory and population as the essential criteria for a state in the sense of international law was formulated by Jean Bodin in 1576. So at the time of the arrival of the first European enslavers on Africa's shores, even the European powers themselves were not defined as sovereign states because the concept did not yet exist (at least in Europe). International law on the contrary did exist, and some of its most fundamental rules remain to this day.
Now when one takes a glance at how the elements of a state were set in stone by international jurisprudence (the criteria including public administration; the size of territory and population being irrelevant; the state as a complement to family constituting a vibrant community with a common history and bonds of solidarity, etc), it is indeed very difficult to follow how the high minds of Western law scholars could come to the conclusion that African states of the time were not states in the sense of international law, given the historical facts.
For a long time, Queen Nzinga of Angola and other African rulers fought the enslavers who captured their population on their territory for the profit of European nations with extremely well organised armies. In 1526 the king of Kongo, rebaptised Affonso I, wrote to his Portuguese homologue, John III: "The merchants abduct our subjects, children of this country, sons of nobles and vassals, even people of our family ... This corruption and this deprivation are so common that our land is entirely depopulated ... It is our volition that this kingdom shall not be a territory neither of the trade nor of the transit of slaves" The International Court of Justice (ICJ) has regularly ruled that limitations of sovereignty cannot be assumed. The same must be valid for African states. Songhay had a very elaborate system of taxation and regulation of import and export, and so did states in Zimbabwe, Zambia, Malawi or the Niger Delta, where historical sources tell of British colonists complaining about it.
This is echoed by the following report by the historian Chinweizu: "The hundred years between 1450 and 1550 were a period of social reforms and of innovations in statecraft in the kingdoms and empires of Africa. Like their contemporaries elsewhere in the world, such as Henry III in England and the founders of Mogul India, African princes of that area were busy expanding and consolidating their rule, curbing unruly nobles, elevating king's men to important offices, establishing or reforming imperial administrations, and creating professional, full-time armies to replace the draft armies of their past.
"On the lower Niger at Benin, Oba Ewuare, after he came to the throne in 1440, vigorously extended the kingdom, taking and incorporating over two hundred new towns. He built good roads in Benin City, added new walls and ditches to the city's defences, and being a patron of the arts, he encouraged wood and ivory carving. By forming the State Council of Benin, he gave to the kingdom a strong central government ..."
The great Senegalese historian and Egyptologist, Cheikh Anta Diop, states that already in pre-Christian times, African states had a constitution and the mission of sovereigns was to serve their people in a wise manner. W.E.B. DuBois affirmed that "without doubt the level of culture among the masses of West Africa in the 15th century was higher than that of northern Europe, by any standard of measure--homes, clothes, artistic creation and appreciation, political organisation and religious consistency".
It is impossible that Europeans could ignore this since contacts had existed for a long time. There are reports of traders from Toulouse in France settling in 1402 in Gao and Timbuktu, home of the most highly esteemed university of the world at the time, not too long after it was turned into a slave-hunting ground.
It is also important to note that once the criteria are met, there exists a state, recognition by others being purely declarative. But since recognition can also be expressed implicitly, Europeans even did that, by sending emissaries to African kings to negotiate treaties. So if international law existed at the time, Europeans were obliged to deal on its basis with their African counterparts.
And indeed there was international law prior to the end of the 15th century. An international society maintained peaceful contacts, mostly via trade connections, into which Africa (Mali, Songhay, Ghana, Kush, etc) was well integrated. For a very long time, there existed a silk, gold, ivory and spice trade between Africa, Persia, India, China and Europe. Europeans, more precisely the Spanish and Portuguese, then came to the west coast of Africa from the beginning of the 15th century with the intent to take over part of this very lucrative commerce.
International law scholars agree that international law has its origins in international trade, well before the 15th century. Mainstream law scholars like D. Carreau also assert that traces of international law can be found in the Bible and also in the practice of ancient Greece and the Roman Empire.
Now scholars like George James and Cheikh Anta Diop have elaborated that both ancient Greece and the Roman Empire maintained commercial and other relations with African empires, and that many passages in the Bible refer in fact to Africa. Carreau and the authors of other international law manuals also state that among the elements of international law found in the Bible is the disposition that ambassadors had to be well treated, and were inviolable, and that every attack on that principle constituted an illicit act that could be a reason for war. Apparently Africans knew and/or respected international law better than their European counterparts, if one considers that Africans generally welcomed the first European colonists and pirates as guests.
Moving the goalposts
Because Europeans were by international law obliged to deal with Africans on its basis, and could not rightfully determine or change its content unilaterally, they cannot declare today that slavery would have been "legal". The question of the "legality" or illegality of transatlantic slavery must be assessed in the light of the "real" international law of the time, and not the one that Europeans have been able to put in place as a consequence of the crime. This of course leaves much research to be done. It must be verified in the light of the juridico-historical facts and state-practice, including that of African states, applicable at the time of the beginning of the Transatlantic Slave Trade, before European aggression and colonialism shattered the world. Even "progressive" European scholars fail in their analysis to go beyond the practice of the enslaver states, that could only as a consequence of their crime impose a system of international law to their liking, including the "legality" of chattel slavery.
The diagnosis that the "international law of the era" had tolerated slavery without considering the juridical orders of the majority of humankind prior to European domination, is itself an integral part of (neo)colonialism. From a historical perspective, this line of argumentation of Western international law doctrine also has very little coherence, since even during slavery the founding fathers of the discipline, Vitoria, Suarez, Grotius and Vattel, insisted on the idea of an existing superior order that was imperative for all and considered it as the juridical heritage of the "civilised world".
As already indicated, due to their contacts and long-time relations, it is evident that Europeans could not ignore that Africa was part of that "civilised world" by any standards.
All of this said, it remains that every violation of the territorial sovereignty of a state by another state constitutes a breach of international law and engages the international responsibility of the state(s) that commit the violation. An illegal practice can never render itself legal, even if it upholds itself by violent means over a period of 400 years.
There is a need to clarify some misunderstandings that may interfere with the reasoning at this point. It is always invoked by reparations deniers that, first, Africans would have practised slavery themselves from time immemorial; and second, that African rulers had significantly participated in the enslavement, or as my professor at international law school put it, "it was not just a matter of white against black".
Both points are usually highly amplified by Western scholars in the reparations debate. Concerning the first point, it is important to keep in mind though that even if for two different social realities the same semantic term is used, this does not change the disparities between the realities, and should not influence an eventual juridical appreciation.
At no time were the so-called inner-African slaves submitted to the total and systematic dehumanisation that characterised transatlantic slavery. Their situation was rather, if at all, comparable with European serfdom, that in my homeland of Austria was abolished as late as 1848. This monopoly and control of terms and words was and is part of the (neo)colonial system that also built on juridical concepts.
For the second point, it is sufficient to remember that many African rulers, like Queen Nzinga, fought slavery with all their might. Unfortunately they were finally defeated because Europeans distributed firearms to African rulers ready to enslave their neighbours. They created a situation for Africans to either enslave or be enslaved.
Arena of power
The second legal strategy consists less of questioning the genesis of contemporary international law, in case that this should find no approval via law doctrine and politics. It links several facts.
One, the prohibition of slavery is today imperative and its violation constitutes an international crime against humanity, the prohibition of slavery being considered as part of jus cogens (imperative law; the highest level of international norms that rests on the presumption that there always exists a certain public international order that is inherent to the universal conscience). What norms could possibly be more inherent to the "universal conscience" than the prohibition of mass murder, robbing and torture? Two, the devastating consequences of the crime on the lives of millions of Africans in the diaspora and the continent continue to this day. Three, former enslaver states have recognised their responsibility for this crime.
We have heard of the principle of non-retroactivity and its importance to negating slavery reparations. However, given the just mentioned facts of this case, it is not unimaginable to permit an exception, especially in the light of international jurisprudence, just solutions were found in the past despite the fact that the law seemed to deny any possibility at first glance.
Even though only dealing with individual penal responsibility, the convention against genocide can be applied retroactively, as the International Court of Justice (ICJ) confirmed in a ruling. It is important to note that the principle of non-retroactivity has its roots and reason in the protection of the individual against arbitrary state power. A constitutional state draws part of its legitimacy from its mission to guide its citizens to actions that are socially compatible, and this is only possible with laws that refer to the present and future. Sanctions established afterwards would sabotage any confidence in the legal order.
Reparations opponents usually omit that this principle has its source here in individual criminal law. So if even in this realm there is room for exceptions, the more it must be admissible in the case of state responsibility for genocide and crimes against humanity, the better. The principle can also be abrogated in other domains of international law, for example in the Vienna Convention on the Law of Treaties, and is also exempt when states retroactively recognise their responsibility.
The Jewish example
International law is not static and when the need arose and was recognised, solutions were found in the past. A strict application of international law of the time would not have allowed Hitlerian crimes to be brought into justice, but "the gravity and speciality of the crimes ... rendered the application of the principles of international responsibility morally inadequate ... These crimes raise specific juridical problems, especially when it came to persons of Jewish origin or confession having German nationality. In effect, many of the persons persecuted were German citizens at the time of the facts and could therefore not benefit of the protection of the winner state. Also, the Israeli state, representing Jewish interests, did not exist at the time of the persecutions."
That Israel can be a recipient of reparation payments though it did not even exist at the time of the crime proves once again that innovative solutions can and must be found in international law. Nazi officials were condemned by the Nuremberg tribunal for genocide, and even though the term "genocide" was not enunciated prior to Nuremberg, it is generally admitted that the tribunal did not create a new law, but only confirmed and declared concepts of international law that had found acceptance in the international community over the last centuries.
Slavery was expressly stated as a crime against humanity by the Chatter of the International Military Tribunal of Nuremberg. There cannot possibly be found any honest argument why this must not also find application in the case of transatlantic slavery. International jurisprudence has also often insisted on the importance of the principle of equity, and confirmed that stopping at the formalism of law must not prevent the search for just solutions. It is self-evident that a stance that denies any possibility for legal responsibility of the perpetrator nations (who still profit from the crime to this day) because of non-retroactivity, would be in terrifying contradiction to the principle of equity.
There is currently a case pending with the ICJ about German war crimes committed in Italy that concerns among others the question of exceptions to the principle of non-retroactivity. The Italian Supreme Court had ruled that elementary general principles (one of the sources of international law) of humanity must prevail over state immunity and over non-retroactivity. The expected judgement of the ICJ will thus also be important for future reparations claims concerning transatlantic slavery.
All of this shows that even if the authors of the recent US apology and other similar utterances by Western leaders explicitly want to avoid any legal consequences, these shabby manoeuvres that reduce regret to vain words may prove futile. An interpretation of these declarations by means of principles developed by international jurisprudence can give them a reach that may go much further than their authors intended.
Recognition of wrongs in international law only concerns the clarification of facts, whereas the legal consequences that must follow from these facts cannot be determined by the authors of the wrongs and the declarations. Having to do with law, this is logical too. Thus the US Senate, and the French and British governments, cannot control by themselves the legal consequences of their recognised responsibility, even if they cry out loud a thousand times that they can.
It should also be taken into account that it was the enslaver states themselves that put in place the prohibition of the slave trade and slavery in contemporary international law. But this was only when the slave trade became economically unprofitable for them (though one must not forget that the unbroken resistance of Africans contributed to making it unprofitable). To agree that the perpetrators of a massive crime should put approvals and prohibitions in place as they wish, would indeed be a negation of law itself.
It is therefore of the highest importance to intensify lobbying on the matter. Youth culture and popular movements like reggae and hip-hop have a big part to play in this. From Africa to every country of the diaspora, there are local and world-known artists and uncountable others who will not forget and keep on reminding the people that without justice neither shall there be peace. The Pan-African reparations movement will have to rely heavily on these movements to reach the people and mount the needed pressure until reparations for slavery can no longer be ignored or ridiculed by the decisive institutions of international law and politics.