Reparations for the transatlantic slave trade and historical enslavement: Linking past atrocities with contemporary victim populations

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Date	01 December 2018
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DOI	10.1177/0924051918801612
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Article

Reparations for the transatlantic

slave trade and historical

enslavement: Linking past

atrocities with contemporary

victim populations

Luke Moffett

Senior lecturer, School of Law, Queen’s University Belfast, Belfast, UK

Katarina Schwarz

PhD Candidate, School of Law, University of Nottingham, Nottingham, UK

Abstract

The debate around reparations for the transatlantic slave trade has been discussed for centuries

with no end in sight. This article does not intend to cover the historical or political aspects of this

debate, but instead to shed more light on the legal options with regards to reparations. In par-

ticular this article examines the role of politically negotiated reparations in transitional societies

and the limits of avenues of redress in international law. Key to such discussions is the identification

of eligible victims and appropriate measures of redress from responsible actors. With the so-called

‘transatlantic slave trade’ the passage of time has strained legal principles of causation to identify

those victimised by atrocities of the past. Instead this article argues that reparations beyond the

international law construct can be politically negotiated to at least acknowledge the past and offer

some symbolic measures of redress to victimised populations of transatlantic enslavement.

Keywords

Reparations, transatlantic slave trade, historical redress, victims, slavery, transitional justice

Corresponding author:

Luke Moffett, Senior lecturer, School of Law, Queen’s University Belfast, Belfast, BT7 1NN, UK.

E-mail: l.moffett@qub.ac.uk

Netherlands Quarterly of Human Rights

2018, Vol. 36(4) 247–269

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Reparations are often seen as victim-centred measures used to address past atrocities, but how far

back should such remedies stretch? This question is perhaps most pronounced in relation to the

transatlantic slave trade, which is now accepted as a horrendous atrocity, but at the time was

considered legal and victims were not redressed. Although reparat ions have a strong basis in

international law since the Second World War, governments often adopt such measures through

political settlements to draw a line under the past and provide new opportunities for victims.

Reparations, at least in the legal arena, can embody a contention between societal feasibility and

individual and/or group rights to a remedy for harm caused to them. Yet the extent to which legal

and political measures of reparations can address the past is limited, due to the size of the victim

population and how long ago historic violations were committed.

In 2013 the Caribbean Heads of State created the CARICOM Reparations Commiss ion to

advance the case for reparations for the transatlantic slave trade. In 2014 the Commission launched

a Ten Point Plan for reparations that sought ‘to provide resources to victimized groups with the aim

of creating the material basis and security necessary for them to become full participants in social,

political, and economic life.’

The demands focused on:

1. full formal apology;

2. repatriation;

3. indigenous peoples’ development program;

4. cultural institutions;

5. public health crisis;

6. illiteracy eradication;

7. African knowledge program;

8. psychological rehabilitation;

9. technology transfer; and

10. debt cancellation.

These proposals for a comprehensive reparations package dealing with the horrors of transat-

lantic enslavement by the Caribbean Community (CARICOM) move away from the traditional

reparations claim for these injustices in the United States – the demand for ‘40 acres and a mule’

–

towards more collective reparations aimed at delivering closure and reparatory justice, not only for

the so-called ‘transatlantic slave trade’, but also for the consequences of colonialism and genocide

against indigenous people.

These proposals are the result of a long line of discussions amongst

Caribbean and African states on reparations for the transatlantic slave trade that started at the

international level in Abuja, Nigeria in April 1993 at the First Pan-African Congress on Repara-

tions and later at the 2001 United Nations World Conference against Racism, Discrimination,

Xenophobia, and Related Intolerance in Durban South Africa.

While the claim for reparations at

1. Ernesto Verdeja, ‘A Normative Theory of Reparations in Transitional Democracies’ (2006) Metaphilosophy 449,457.

2. Special Field Orders, No. 15, Headquarters Military Division of the Mississippi, 16 Jan 1865, Orders and Circulars,

series 44, Adjutant General’s Office, Record Group 94, National Archives.

3. CARICOM Reparations Commission, ‘10-Point Reparation Plan’, May 2014

icoms-10-point-reparation-plan/> accessed 10 December 2016.

4. V P Franklin, ‘Commentary - reparations as a development strategy of the Caricom Reparations Commission’ (2013)

98(3) The Journal of African American History 363-366; See also United Nations Specialised Conferences, ‘Durban

Declaration and Plan of Action, Adopted at the World Conference Against Racism, Racial Discrimination, Xenophobia

and Related Violence’ (Durban Declaration 2001) UN Doc A/CONF.189/12, paras 100-102.

248 Netherlands Quarterly of Human Rights 36(4)

Durban was strongly rejected by Western states, it continues to be pursued by Caribbean nations

through CARICOM, in a bid to tackle the contemporary consequences of historical abuse com-

mitted against their ancestors during the transatlantic slave trade.

This articletakes a socio-legal approachdrawing from human rightslaw, victimology, privatelaw

and transitionaljusticeto examine the claim for reparationsfor historic violations.It argues that whilea

collective approach to reparations as promoted by CARICOM is likely to be more palatable for

responsiblestates, and more workable in legalterms, there remain seriouslegal challenges in finding

sufficientevidence of a causal nexus betweencontemporary sufferingand historical wrongsto satisfy

judicial requirements. Pairedwith the difficulty of establishing that the wrongdoing was prohibitedin

lawat the time the acts were committed,this leads awayfrom the conclusionthat a legal claim wouldbe

successful.However, in political terms specificevidentiary requirementsand the distinction between

law and moralitycan be more flexible, allowingclaims which might not succeedon the basis of legal

doctrineto conclude on the basis of justice.The CARICOM claim targets modalitiesof reparations to

respond to the contemporary consequencesof transatlantic enslavement.A political settlement draw-

ing from the experienceof transitional justice is therefore likely to be more appropriatein providing

redress. As such, this article critically assesses the CARICOM claim for reparations, and suggests

appropriatemeasures if political reparations were to be made.We use quote marks aroundthe phrase

‘slave trade’ in the introduction to reflect its rejection by Black reparation activists, who view the

language of the ‘slave trade’ to describe the systematic transatlantic chattel enslavement, which

suggests a sanitised form of violence and denigrates those people who were enslaved, denying the

victims’ agencyand humanity, and avoiding the intentionality of perpetrators.

We explore these issues in four parts. First, we examine reparations as justice and their con-

struction in international law, disc ussing growing victimological understanding of redress for

international crimes. In the second part, we identify the continuing limitations of reparations being

claimed under current legal regimes whether domestic or international. We broaden this examina-

tion by considering reparations as a political project in the third part, discussing other political

settlements made for historical atrocities. In the final part, we reflect on the possibilities of

reparations for the transatlantic slave trade and historic enslavement before concluding. While

we argue that the possibility for reparations for the transatlantic slave trade on a legal basis is

unlikely, we do believe that in setting aside the legal lens on dealing with historic atrocities, there

can be a larger space for states involved in the transatlantic slave trade on a moral and political

basis to recognise the harm caused and make symbolic reparations. Of course, this does not have

the same force or binding nature as law, it would allow acknowledgement of the wrongfulness of

transatlantic enslavement and greater focus in addressing its long-term consequences.

1. Reparations as justice

Reparations are premised on the attempt to redress wrongful acts. Rather than seeking distributive

justice or absolute equality, legal reparations focus on providing a remedy for specific acts of

wrongdoing with identifiable victims and perpetrators. Reparations in this legal context, serve a

tripartite function in satisfying the demands of justice by: vindicating the law; placing obligations

to repair on the shoulders of responsible actors; and providing for the needs of the victims by

redressing their suffering and manifesting their right to a remedy for breaches of their rights.

5. See Durban Declaration 2001 (n 4) paras 13-18.

Moffett and Schwarz 249

Justice demands that breaches of law be met with an appropriate remedy, and reparations as a

justice mechanism are a means by which this can be comprehensively granted. Reparations,

extending beyond mere compensation, are constituted of three key elements: acknowledgement;

responsibility; and remedy.

They therefore reflect the totality of situations of wrongdoing and

victimisation, rather than simply addressing the consequences.

Within a rectificatory framework, justice requires the return of the victim and the perpetrator to

equality by removing any unlawful gain from the perpetrator and returning it to the victim, a sort of

transactional arrangement.

Restitutionary justice, as a form of this, attempts to return victims to

the status quo ante (original position) through restitutio in integrum (returning to the victim all

they have lost). The Chorzow Factory case demonstrates the primacy of the principle of restitutio

in integrum in international law:

reparations 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.

However, when dealing with massive, widespread, or severe abuses, the principle of restitutio in

integrum becomes increasingly unfeasible. It is impossible to return victims to the positions that

they would have been in but for the wrongdoing.

As Minow identifies, ‘no market measures exist

for the value of living an ordinary life, without nightmares or survivor guilt’.

At best reparations

can never completely ‘efface’ the harm caused, but they can at least alleviate continuing suffering

and loss,

or offer the opportunity and means for victims to build new lives.

In relation to

enslavement, it would be inappropriate to base reparations on the notion of return to the status quo

ante, as redress to those who directly suffered would be ‘impossible, in sufficient, and inade-

quate’.

Moreover, returning the individual to their personal and property rights before the

violation would neglect the more structural causes of victimisation, marginalisation and discrim-

ination.

Nevertheless, reparations based on dealing with the continuing harms and recognition of

the moral wrongdoings perpetrated may still be appropriate.

6. See Luke Moffett, Justice for Victims before the International Criminal Court (Routledge 2014) 145.

7. See Aristotle, Nicomechean Ethics, Book V.

8. Germany v Poland, The Factory at Chorzo

´w, ICJ File E. c. XIII, Docket XIV: I (Claim for Indemnity, Merits) [1928],

No. 13, (1928) PCIJ Series A No 17, ICGJ 255 (PCIJ 1928), 13 September 1928 [125]; See ILC Articles on

Responsibility of States for Internationally Wrongful Acts (adopted 10 August 2001) UN-Doc A/56/10 (Articles on

State Responsibility), art 31.

9. Factory at Chorzo

´w, (Merits) (n 8) 48.

10. Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Beacon

Press 1998).

11. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment (Separate

Opinion Of Judge Canc¸ado Trindade) [2012] ICJ Rep 2012 324 [26].

12. Such as the ‘proyecto de vida’ (life project) established for a time by the Inter-American Court of Human Rights

in Loayza Tamayo v Peru (Merits) Inter-Amer ican Court of Human Rights Series C No. 33 (27 No vember 1998)

[147–148].

13. Blake v Guatemala,(Reparations) (Article 63.1 of the Inter-American Convention on Human Rights) Inter-American

Court of Human Rights Series C No. 48 (January 22 1999) [42].

14. Heidi Rombouts and Stephan Parmentier, ‘The International Criminal Court and its Trust Fund are Coming of Age:

Towards a Process Approach for the Reparation of Victims’ (2009) 16 International Review of Victimology 149.

15. Cristian Correa, ‘Reparations for Victims of Massive Crimes: Making Concrete a Message of Inclusion’ in Rianne

Letschert, Roelof Haveman, Anne-Marie de Brouwer, and Antony Pemberton (eds), Victimological Approaches to

International Crimes: Africa (Intersentia 2011) 189-190.

250 Netherlands Quarterly of Human Rights 36(4)

The intergenerationalnature of claims relatingto historical injusticeserodes the basis of reparations

claims. Identifying a causalnexus between the continuingsuffering of contemporarydescendants and

the original wrongdoing becomes increasingly difficult as time passes. In the case of racialised

transatlanticenslavement,intervening factorsalso contribute to the harms experiencedby descendants

– apartheid, colonialism, blackcodes, segregation, international debts andother discriminatory prac-

ticesall contribute to currentsuffering in a way thatat least obscures, and at mostcompletely overrides,

the historicallybased claims. Judicialpractice tends to recognise theclaims of direct victims and their

immediate family(children, spouses, parentsand sometimes siblings), butrarely strays beyond these

limits on claimants.

Hill argues that compensatory justiceseems inappropriate past one generation,

the passageof time mitigates the physicalharm or is accommodated,but there may still be groundsfor

claiming restitution of property or unjust enrichment for the non-payment of labours of ancestors.

This approach denies the broader impact of injustices on families and communities, acknowledging

only the harms to the directvictims, and perhaps their next-of-kin.

While individual physical harm may be accommodated within a generation, systematic and

structural abuses that continue to harm subsequent generations do not necessarily naturally change

over time, and may reinforce disenfranchisement and discriminatory practices towards such groups

and communities. An increasing body of psychological research supports the transgenerational

impact of unaddressed collective violence, whether this continuing influence manifests in terms of

economic hardship, psychological health, physical health, or through its effects on carer respon-

sibilities for children and grandchildren of direct victims.

The increasing focus on rehabilitation

and the medicalisation of victims’ harm, may recast victims as sick, rather than wronged. Whether

the law is an appropriate mechanism for redressing such harms remains debateable, as the typical

focus of judicial proceedings relies on the relationship between a perpetrator or responsible actor

and each victim as an individual. Arendt goes so far as to say that the scale of mass atrocities

‘explode the limits of the law’,

and that courts and their legal principles designed to deal out

ordinary justice are insufficient to grapple with such atrocities.

In attempting to make the incomprehensible justiciable, courts can serve as empowering

mechanisms whereby the individual agency and rights of victims are recognised and vindicated.

On the other hand, the focus on the individual’s rights can undermine the gravity of the holistic

experience of atrocities that target groups, communities or populations. The tendency of legal

proceedings to individualise victims can ignore important elements of the suffering of the victims:

atrocities were committed on a large scale; they were targeted for some aspect of their fundamental

identity; or they were denied humanity on the basis of particular, morally arbitrary characteristics.

Courts can provide victims with an official forum in which their stories are heard and recognised;

16. See for instance the Swiss Holocaust Settlement experience - Judah Gribetz and Shari Reig, ‘The Swiss Banks

Holocaust Settlement’ in Carla Ferstman, Mariana Goetz, and Alan Stephens (eds), Reparations for Victims of Gen-

ocide, War Crimes and Crimes against Humanity: Systems in Place and Systems in the Making (Martinus Nijhoff

2009).

17. See Ren´ee A Hill, ‘Compensatory Justice: Over Time and Between Groups’ (2002) 10 The Journal of Political Phi-

losophy 392; Jeremy Waldron, ‘Redressing Historic Injustice’ (2002) 52 The University of Toronto Law Journal 135.

18. Marie Breen-Smyth, The Needs of Individuals and Their Families Injured as a Result of the Troubles in Northern

Ireland, WAVE Trauma Centre (2012) %20Final%20Report.pdf> acces-

sed 12 March 2018; Yael Danieli, ‘Massive Trauma and the Healing Role of Reparative Justice’ in Ferstman and others

(n 16) 41.

19. Lotte Kohler and Hans Saner (eds), Hannah Arendt and Karl Jaspers: Correspondence: 1926–1969 (Harcourt Brace

International 1992) 54.

Moffett and Schwarz 251

the value of testimony in fostering psychological healing for victims of atrocities is significant.

Yet, the appropriateness of court proceedings for accomplishing such healing and redress faces a

number of limitations discussed further below.

Reparations are not purely (or even necessarily primarily) concerned with practical redress, they also

have an important symbolic component in that they can ‘acknowledge and recognise the individual’s

suffering ...can help concretise a traumatic event, aid an individual to come to terms with it and help

label responsibility.’

Traumatic suffering is characterised by the inability to come to terms with an

experience as it occurs, reinforcing the importance of efforts aimed towards acknowledgement and

memory building.

Reparations in this context can reflect ‘social, moral, psychological and religious

meanings’ attached to official efforts to redress the past, such as public apologies and acknowledgement

of responsibility, memorials and commemorations.

Such public recognition and physical space can

help victims in their grieving process by offering focal points that maintain the memory of their loved one.

Through symbolic redress, reparations can also speak to the moral harms caused by victimisa-

tion – the intangible damage to individual, collective and cultural identity – and aid in reasserting

the status of victims in their relationship with society and/or the perpetrator(s). As Herman states:

Sharing the traumatic experience with others is a precond ition for the restitution of a sense of a

meaningful world ...Restoration of the breach between the traumatized person and the community

depends, first, upon public acknowledgement of the traumatic event and, second, upon some form of

community action. Once it is publicly recognized that a person has been harmed, the community must

take action to assign responsibili ty for the harm and to repair the injury. These two responses –

recognition and restitution – are necessary to rebuild the survivor’s sense of order and justice.

Particularly in transitional societies, reparations can serve a political function in rebuilding the

victim’s ‘civic trust’ with other citizens and in the state, and reaffirming their dignity by prioritis-

ing their suffering as deserving of redress.

This sits in stark contrast to the past where they were

vilified, dehumanised and targeted. In building this new political community, social solidarity and

inclusion is extended to victims as citizens entitled to a remedy. While of course there are not

enough resources to fully or completely remedy victims’ harm, Hamber suggests the notion of

‘good enough’, whereby sufficient effort and recognition is made to victims to leave them psy-

chologically satisfied, in turn rebuilding community and societal bonds.

As a victim-centred form of redress with both material and symbolic components, reparations

are not only driven by outcomes, but also by procedural roles and the inclusivit y of awards.

Procedural justice is concerned with improving victims’ satisfaction with state programmes,

20. Danieli, ‘Massive Trauma and the Healing Role of Reparative Justice’ (n 18) 45.

21. Brandon Hamber, ‘Repairing the Irreparable: Dealing with the Double-Binds of Making Reparations for Crimes of the

Past’ (2000) 5 Ethnicity and Health 215, 218.

22. Cathy Caruth, Trauma: Explorations of Memory (John Hopkins University Press 1995) 70.

23. Genevi `eve Painter, cited in Anne Saris and Katherine Lofts, ‘Reparation Programmes: A Gendered Perspective’ in

Ferstman and others (n 16) 86.

24. Judith Herman, Trauma and Recovery: From Domestic Abuse to Political Terror, (Rivers Oram Press 1994) 70.

25. Lisa Magarrell, ‘Reparations for Massive or Widespread Human rights Violations: Sorting Out Claims for Reparations

and Social Justice’ (2003) 22 Windsor Yearbook of Access to Justice 85, 91.

26. Brandon Hamber, ‘The Dilemmas of Reparations: In Search of a Process-Driven Approach’ in Koen Feyter, Stephan

Parmnetier, Marc Bossuyt, and Paul Lemmens (eds), Out of the Ashes: Reparation for Victims of Gross and Systematic

Human Rights Violations (Intersentia 2005) 137.

252 Netherlands Quarterly of Human Rights 36(4)

mainly criminal justice processes, by treating them fairly, with respect and in such a way that they

will perceive that their input is valued.

Allowing time and space within procedures for victims to

be heard (even when this is not a formal requirement of, for instance, trial procedures) can support

recognition of their experiences, and the reassertion of their identity and place in society. Official

acknowledgement of victims’ ‘world view’ on their past victimisation, the causes that gave rise to

it, and those which were responsible can be a way of affirming their dignity as human beings,

recognising that they did not deserve to suffer such harm. Danieli goes as far to say that inclusion

of victims in itself offers ‘an opportunity for redress and healing’.

In this way, the procedures

through which reparations are granted can acknowledge the importance of victims’ agency and

worth, and victims thereby have an important role to play in shaping appropriate reparations.

Including victims as active participants in reparations procedures is particularly important in the

context of gross violations of human rights where victims are denied basic humanity through the

abuses, and where impunity often attaches to wrongdoing (particularly in transitional societies and

when officialactors played a role in the abuses).

The nature andsubsequent treatment of the abuses,

and the need to maintain public order can silence and obviate victims, denying the occurrence or

severity of theirharm. Ensuring the involvement of victims in redress processescan ensure that their

experiences are recognised, their rights are vindicated, and their needs are incorporated into any

reparations packages. Despite the normative growth and theoretical development of reparations,

there remain a number of legal challenges to seeking redress for the transatlantic slave trade.

2. The limits of reparations under international law

The possibility of pursuing a case claiming reparations for the transatlantic slave trade in domestic

courts is severely inhibited by the difficulties associated with mass claim actions, time limits on

claims, rules on standing and separation of powers based principles, such as the political question

doctrine in the United States.

The scale and collective nature of the harms in question, on top of

these impediments, make international law the only likely forum for such a reparations claim.

However, international law has many hurdles of its own. Here we identify three main obstacles in

domestic and international law that will inhibit or prevent reparations claims for the transatlantic

slave trade and historic enslavement: non-retroactivity; causation; and attribution of responsibility.

2.1 Non-retroactivity

By today’s standards, the transatlantic slave trade and historic enslavement would undoubtedly

amount to a crime against humanity.

However international law, like domestic law, enshrines the

principle of non-retroactivity as a fundamental tenet of the legal system.

The Articles on State

Responsibility, for instance, guarantee protection against retrospective application of international

27. Jo-Anne Wemmers, ‘Victims’ Need for Justice’ in Letschert and others (n 15) 145–152.

28. Danieli, ‘Massive Trauma and the Healing Role of Reparative Justice’ (n 18) 66.

29. Luke Moffett, ‘Transitional Justice and Reparations: Remedying the Past?’ in Cheryl Lawther, Luke Moffett, and Dov

Jacobs, Research Handbook on Transitional Justice, (Elgar 2017), 377.

30. See In re African-American Slave Descendants Litigation, 471 F.3d 754 (7th Cir.2006).

31. Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90

(Rome Statute of the International Criminal Court) art 7(1)(c).

32. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976)

999 UNTS 171 (ICCPR), art 15; Rome Statute of the International Criminal Court, art 24.

Moffett and Schwarz 253

law, stipulating that ‘An act of a State does not constitute a breach of an international obligation

unless the State is bound by the obligation in question at the time the act occurs.’

In order to

found a legal claim for reparations, it must therefore be established that the acts in question were

contrary to international law at the time that the acts were committed. This is not supported under

current conceptions of the development of the prohibition of slavery, which is generally recognised

as having come into existence in 1926.

Although morally repugnant, slavery was legal and regulated under domestic law of the time, as

well as the tentative ‘international’ law.

The dominance of this understanding of the status of

prohibition is apparent in a number of cases before Umpire Bates of the United States-Great Britain

Mixed Commission involving the actions of British authorities who seized US ships involved in

the slave trade and freed slaves belonging to US nationals. Umpire Bates had to determine whether

slavery was ‘contrary to the law of nations’ at the time of each incident in order to determine

whether the British state had committed acts of unlawful interference with the property of foreign

nationals in freeing the American slaves. The commission found such unlawful interference in

cases preceding recognised prohibition, but later found no breach once the slave trade was recog-

nised as being ‘prohibited by all civilised nations’.

International law is primarily premised on the consent of State Parties to the rules contained

therein. It is therefore important that there has been consensus achieved through the conclusion of

treaties or, as du Plessis points out, that international law has crystallised around an issue through

wide state practice and observance – principles of morality are insufficient as a basis of interna-

tional prohibitions.

Unlike the initial codification of international criminal law through the

Nuremberg Tribunal, there was no ‘defining moment’ in the criminalisation of slavery.

Shelton

acknowledges that ‘slavery became illegal under international law slowly and in piecemeal fash-

ion, starting over a century after the transatlantic slave trade began and as a result of opposition that

existed from the start and grew stronger over time.’

The fact that transatlantic enslavement was

an abhorrent act at the time cannot therefore, in itself, serve as the basis of legal liability, nor can

the now recognised special status of the prohibition against slavery in international law. Even the

jus cogens (non-derogable) nature of the prohibition against slavery cannot obviate the principle of

non-retroactivity of responsibility.

Even if there were a legal basis for reparations on the transatlantic slave trade, there would be

limits on the scale of such redress. Reparations under international law are not limitless. The

Articles on State Responsibility are couche d in terms of proportionality with restitution only

33. Articles on State Responsibility, art. 13.

34. Slavery Convention 1926, League of Nations Treaty Series, vol. 60, 253; Rhoda E Howard-Hassmann and Anthony P

Lombardo, ‘Framing Reparations Claims: Differences between the African and Jewish Social Movements for

Reparations’ (2007) 50 African Studies Review 50(1) 27, 30.

35. See Jean Allain, Slavery in International Law (MNP 2013).

36. See ILC, ‘Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (August

2001), UN Doc A/56/10 þCorr.1 57-58.

37. Max du Plessis, ‘Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery’

(2003) 25(3) Human Rights Quarterly 624, 634.

38. Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice (Penguin 2000) 209.

39. Dinah Shelton, Remedies in International Human Rights Law (2nd edn, OUP 2005) 443.

40. Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Merits) [1970] ICJ Rep 3 [34]; Du Plessis,

(n 37) 636; ILC, ‘Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts’

(n 36) paras 5-6.

254 Netherlands Quarterly of Human Rights 36(4)

granted where it is not ‘materially impossible’ or would ‘involve a burden out of all proportion to

the benefit deriving from restitution instead of compensation.’

This of course does not prevent

states from agreeing to political settlements over historic injustices, it only prevents the interna-

tional legal order being used as a remedial avenue.

2.2 Causation

It is a general principle of private, criminal and international law that harm caused to a victim

capable of being redressed through judicial mechanisms must be the result of a wrong or crime

committed by the responsible party on trial.

As a legal construct, reparations do not seek to

address all suffering, but rather the specific damages which result from particular wrongdoing;

compensable harms are those sufficiently proximate consequences which are causally connected to

the illegal acts in question. The nature of this causation for claims of reparations in law requires a

victim to have suffered in fact from a wrong committed by a responsible party, with sufficient legal

rules to permit such a wrong to give rise to a legal cause. The Articles on State Responsibility do

not define the causal link required to found a legal claim, as different areas of international law

contain obligations of a different nature.

However, the commentaries do note that factual causa-

tion alone is not the sole criterion.

This makes it clear that there is a distinction in the law

between factual and legal causation.

Factual causation is established by a direct connection between the wrongs in question and the

damages suffered as a result of the wrong in question. In other words, the harm would not have

occurred, but for the wrongdoing. Factual causation may be easily proved in relation to direct

victims of injustice, but it becomes increasingly difficult to identify as time passes and other

factors interact with the original wrongdoing to perpetrate and perpetuate harm. Howard-

Hassmann and Lombardo, comparing reparations claims for the Jewi sh Holocaust with those

relating to transatlantic enslavement, note that the causal nexus between direct victims and those

responsible was more apparent in the first wave of claims against the Nazi government only a few

years after the Holocaust, which became more difficult for more indirect victims in subsequent

years.

For instance with subsequent claims in the 1990s against private corporations such as

Swiss banks, the harm was more removed as many of the direct survivors had died, and it was their

next-of-kin or heirs making claims.

Ultimately, the Swiss banks Holocaust settlement recognised that not all heirs for the purpose of

personal injury claims should be eligible for compensation as it would dilute the amount of money

available to those directly harmed given the limited nature of the funds.

Although this conclusion

resulted in large part from the financial limitations of the situation, a clear distinction was drawn

between direct and subsequent victims premised on the strength and proximity of the causal nexus.

This would pose even greater challenges in reparation claims for transatlantic enslavement, as

41. Article 35(a)-(b), article 37(3). See Du Plessis (n 37) 630.

42. For instance, Article 75(2) of the Rome Statute.

43. James Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge University Press

2002) 492-3 and para 10.

44. ILC, ‘Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (n 36) para 10.

45. Howard-Hassmann and Lombardo (n 34).

46. Gribetz and Reig (n 16).

Moffett and Schwarz 255

these have passed through several additional generations than had the claims in the Swiss banks

settlement.

Legal causation seeks to establish not only which consequences are connected to the wrong-

doing, but which connected harms ought to be redressed by the wrongdoer in any given case. Legal

causation therefore requires an assessment of remoteness, foreseeability, and proximity.

Remo-

teness and proximity are both premised on the notion that the consequences of any human act are

far-reaching, potentially infinite, and often impossible to accurately assess. Given the scale of the

transatlantic slave trade as with other contemporary international crimes, the scale and extent of

harm can stretch the limits of the law and adequacy of remedies, therefore there must be some form

of limits on what redress is possible and feasible. As the Inter-American Court of Human Rights

stated:

Every human act produces diverse consequences, some proximate and others remote. An old adage

puts it as follows: causa causæ est causa causati. Imagine the effect of a stone cast into a lake; it will

cause concentric circles to ripple over the water, moving further and further away and becoming ever

more imperceptible. Thus it is that all human actions cause remote and distant effects. To compel the

perpetrator of an illicit act to erase all the consequences produced by his action is completely impos-

sible, since that action caused effects that multiplied to a degree that cannot be measured.

The law must therefore draw a distinction at some point between proximate and remote harms,

in order to avoid infinitely varying and ethereal consequences coming within the purview of a

specific cause of action. The principle of foreseeability is embedded in the bilateral nature of

judicial proceedings: claims are not only constituted by victims, but are levied against a specific

actor who is to be made liable for the consequences of his or her wrongdoing.

Justice in the legal

context is concerned with enforcing proportionate culpability on the offender as well as vindicating

the rights of victims. As Shelton notes, ‘[t]he line drawn inevitably demands policy determinations

about the reasonableness of expecting an actor to have foreseen the specific consequences of the

action taken and about which party should most appropriately bear the loss.’

Despite requiring distinctions between compensable and non-compensable harms, rules regard-

ing remoteness, proximity and foreseeability are not so restrictive as to provide redress only for

direct harms – responsibility may be attributed on an indirect basis. Perpetrators may be held

responsible for damages resulting from the actions of another, but which were the foreseeable and

proximate consequence of the wrongdoing. Thus, the Iraqi government was held responsible for

‘any direct loss, damage, including environmental damage’ suffered ‘as a result of Iraq’s unlawful

47. United States - Germany Claims Commission, ‘Administrative Decision No. II’ RIAA, vol. VII (1 November 1923) 23,

23; United States-Venezuela Commission, RIAA vol. IX (17 February 1903) 113, 121; United States and Germany –

Mixed Claims Commission, ‘War-Risk Insurance Premium Claims, United States Steel Products Company (U.S.A.) v.

Germany’ RIAA vol. VII (1 November 1923) 55.

48. Aloeboetoe and others v Suriname, (Reparations and Costs) Inter-American Court of Human Rights Series C No. 15

(10 September 1993) [48].

49. Naulilaa Case (Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa

(Portugal v Germany) RIAA, vol. II (31 July 1928) 1011; See Conor McCarthy, ‘Reparation for Gross Violations of

Human Rights Law and International Humanitarian Law at the International Court of Justice’ in Ferstman and others (n

16) 297-298.

50. Dinah Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’ (2002) 96(4) The American

Journal of International Law 833, 846.

256 Netherlands Quarterly of Human Rights 36(4)

invasion and occupation of Kuwait’ – even in cases where Kuwaiti oil wells were hit by Coalition

bombing.

The extent of indirect liability can thus accommodate liability of a wrongdoer even

where another, independent actor is more directly connected to the damage, provided that causa-

tion is established. In the case of the transatlantic slave trade the role of private organisations and

individuals in the enslavement, transport, sale and use of individuals for slavery would have to be

scoped, acknowledged and addressed by any proposed reparations programme.

The passage of time in and of itself can impact on establishing causation, as private law

principles of attenuation or the existence of intervening acts can break a link in the chain of

causation between the perpetrator’s wrongdoing and the victims’ harm.

The principle of attenua-

tion recognises that the more remote an action is from the claimed consequences, the more difficult

it will be for a court to find a clear causal connection. Just as the impact of an illegal police

procedure on evidence can ‘become so attenuated as to dissipate the taint’,

so too can the effect of

wrongdoing on a victim become so far removed over time as to destroy the causal nexus.

Intervening actions and events which impact upon the victim can similarly weaken the causal

chain, and such events may be so significant as to completely override the original wrongdoing as a

cause of current harms. In the case of enslavement of African people and their descendants in the

United States, for instance, the institution of slavery was succeeded by segregation, lynching,

redlining, police brutality, and other forms of racial discrimination which severely impacted the

lives and outcomes of people of African descent in the US.

This makes establishing the original

enslavement as a continuing causative factor in contemporary suffering particularly difficult. As

each generation passes, the causal connection further degrades posing increasing difficulties for the

descendants of enslaved persons who are now several generations removed from the direct victims

of enslavement and who are faced with a slew of intervening factors contributing to identified

harms. However, these factors may be considered to diminish the impact of original wrongdoing

upon the victims, rather than completely severing the chain of causation. In such a case, the amount

of reparation or damages awarded could be reduced on the principle of mitigation.

2.3 Attribution of responsibility

A legal claim for redress, premised on the need to do justice between wrongdoers and victims,

requires the attribution of responsibility for wrongful acts to an extant legal entity or person. In

civil cases, personal claims can only be brought in personam (against a person), barring such

claims premised upon individual wrongdoing in relation to historical enslavement where no direct

perpetrators survive. Actions in rem (against a thing) may be transmitted to actors, other than the

original perpetrator; however, there are serious difficulties in constructing such claims in relation

to enslavement generally as the primary rights sought to be vindicated do not relate to wrongs

51. United Nations Security Council ‘Security Council Resolution 687 (1991)’ (8 April 1991) UN Doc S/RES/687; United

Nations Security Council, ‘Report and Recommendations made by the Panel of Commissioners Appointed to Review

The Well Blowout Control Claim (The ‘‘WBC CLAIM’’)’ (18 December 1996) UN doc S/AC.26/1996/5/Annex, para

86.

52. Kaimipono David Wenger, ‘Causation and Attenuation in the Slavery Reparations Debate (2006) 40 University of San

Francisco Law Review 279.

53. Nardone v United States, 308 US (1939).

54. Ta-Nehisis Coates, ‘The Case for Reparations’ The Atlantic (June 2014)

2014/06/the-case-for-reparations/361631/> accessed 7 January 2017.

Moffett and Schwarz 257

against property, but wrongs committed against persons.

The claim for unjust enrichment based

on the unpaid labour of enslaved persons seeks to create such an in rem action. This is proposed as

crafting a constructive trust around the sum of money representative of the unpaid labour, and

transmitting obligations in relation to such money down the lines of inheritance of successive

generations.

The doctrine of laches (lack of diligence in making a speedy claim), detrimental

reliance and undue hardship principles, combined with the difficulty of tracing sufficient funds

through multiple generations in the majority of cases would make claims against contemporary

heirs near impossible in practice.

Arguing for the transmission of the beneficial interest in the

constructive trust would prove even more difficult in such a context, as no established right to

inherit exists within the legal systems in question.

In the case of a claim against a state, continued responsibility is understood in terms of the rules

of state succession. Because the political identity of the relevant European states has remained

largely constant since the period of transatlantic enslavement, responsibility may be attributed to

the governments of these states. In the Mau-Mau case against the United Kingdom government, the

UK argued that atrocities committed by colonial government were attributable to the Kenyan

government. This argument was rejected on the grounds that there were comprehensive and

voluminous records in the UK’s Foreign and Commonwealth Office that detailed the role of the

former War Office and Colonial Office in using torture to restore law and order in Kenya under the

colonial administration. Moreover, despite a statute of limitations to time bar civil claims against

responsible actors,

the Mau Mau case was an exception given it was a settlement. The rules were

also found to be more flexible with the court stating that there exists ‘the widest possible discretion,

within bounds, to enable claims for personal injury to proceed outside the general limitation period

where the justice of the case so requires.’

Establishing responsibility for companies, such as those who facilitated the transport of indi-

viduals into slavery, would be difficult in legal terms, given that many of these companies no

longer exist or have changed ownership or merged with other corporations multiple times. Such

basis for reparations may be on political grounds given the public pressure that can be placed on

slavery profiting companies, some of whom have funded scholarships to descendants of slaves.

In addition, there are strict limits on individuals bringing civil cases against other states and state

actors, given the rules on state immunity even for recent violations.

Accordingly, the legal

limitations inhibiting historical claims from successfully obtaining reparations within the judicial

55. See Jeremy Waldron, ‘Superseding Historic Injustice’ (1992) 103 Ethics 4.

56. See George Schedler, ‘Principles for Measuring the Damages of American Slavery’ (2002) 16(4) Public Affairs

Quarterly 377, 397-398; Stephen Kershnar, ‘The Inheritance-Based Claim to Reparations’ (2002) 8 Legal Theory 243,

253.

57. See Lynton Tucker, Nicholas Le Poidevin and James Brightwell, Lewin on Trusts (19th edn, Sweet and Maxwell 2015).

58. In the UK under the Limitation Act 1980 (UK).

59. Mutua & Ors v The Foreign And Commonwealth Office [2012] EWHC 2678 (QB) [158]; Limitations Act 1980 (UK), s

33.

60. For example JP Morgan Chase in 2005 apologised for its historical involvement in slavery, and announced that it was

setting up the Smart Start Louisiana scholarship, providing an initial $5 million (US) over a five year period for full

tuition and undergraduate scholarships to black students from Louisiana to attend colleges in the state. ‘JP Morgan

admits US slavery links’ (21 January 2005) BBC News accessed 10

December 2015.

61. Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99; Case of

Jones and Others v The United Kingdom App nos. 34356/06 and 40528/06 (ECtHR, 14 January 2014).

258 Netherlands Quarterly of Human Rights 36(4)

arena are significant, and the likelihood of a legal ruling in favour of such a case is limited. It may

be more apposite to frame such reparation claims on a more political basis on the moral wrongful-

ness of the atrocities, which may require taking compensation off the table.

3. Reparations as a political settlement

Reparations in relation to severe, historical, and state-perpetrated injustices do not rise or fall only

within the bounds of judicial systems. In such cases reparations can, and often are, constructed

within the political arena where they are built as a political ‘project’

or ‘settlement’ for a class or

group of victims.

Judicially constructed reparations can respond to individual harms and the

unique situations of different victims. However, in doing so courts can disaggregate victims and

cause discrepancies between reparations for victims in similar situations on the basis of available

evidence and diverging decisions.

Some victims are likely to be entirely excluded from judicial

processes because of strict evidentiary burdens; standards which are particularly difficult to meet

in the context of historical abuses or situations of civil unrest. Political reparations allow for

evidentiary requirements to be eased reflecting the reality of the situation in question.

Reparations adopted as part of a transitional or historical redress of the past are positioned to

send political and moral messages as to the wrongfulness of the harm caused to victims, vindicat-

ing their civic status and providing appropriate remedies as part of society’s solidarity with their

plight.

According to De Greiff reparations can serve a truth-telling function by helping to clarify

the past and ‘awaken empathy with victims’.

Hamber suggests that while reparations may not be

comprehensive and full, where there is sufficient effort and recognition made to victims, can be

seen as ‘good enough’, leaving them psychologically satisfied, in turn rebuilding community and

societal bonds.

Five general principles assist in assessing the effectiveness of any reparations process:

1. completeness and comprehensiveness;

2. complexity and coherence;

3. appropriateness and proportionality;

4. acknowledgement; and

5. transformative justice.

The first of these, completeness and comprehensiveness, involves as far as possible including

all atrocities and victims who have suffered serious harm.

This does not necessarily require the

inclusion of all possible victims, but rather that the parameters of the reparations programme are

clear. Completeness in this context refers to the coverage of relevant potential beneficiaries with

consideration for the evidentiary standards imposed, and measures taken to ensure reparations are

accessible. Comprehensiveness r elates to the category of violated rights, which are redresse d

62. Magarrell (n25) 94.

63. Pablo de Greiff, ‘Justice and Reparations’ in P. de Greiff (ed.), Handbook of Reparations (OUP 2006) 454.

64. ibid 458.

65. Magarrell (n 25) 91.

66. de Greiff, ‘Justice and Reparations’ (n 63) 464.

67. Hamber, ‘Repairing the Irreparable’ (n 21) 137.

68. Pablo de Greiff, ‘Repairing the Past: Compensation for Victims of Human Rights Violations’ in de Greiff (n 63).

Moffett and Schwarz 259

through a range of measures (restitution, compensation, rehabilitation, measures of satisfaction and

guarantees of non-repetition) to address breaches of a wider variety of rights.

Secondly, reparations mechanisms are considered complex when they provide for different

types of reparations, individual and collective measures. Such measures should be internally and

externally coherent with the reparations order and complement other transitional justice

approaches such as trials and truth commissions.

Third, proportionality requires that the redress

granted to the victims is reflective of the harms that they suffered as a result of the breach of their

rights. Human rights reparation principles support that awards should not enrich or impoverish

victims, but be equal to their harm.

Fourth, acknowledgement ‘symbolize[s] a society’s under-

taking not to forget or deny that a particular injustice took place, and to respect and help sustain a

dignified sense of identity in memory for the people affected.’

Last, transformative justice moves toward tackling the structural causes of violence and victi-

misation, such as racial discrimination, rather than merely the symptoms. Gready and Robins point

to transformative justice confron ting social exclusion and focus on an inclusive process over

outcomes as well as challenging unequal power relations.

This approach would indicate a more

consultative role for descendants of the transatlantic slave trade in redressing the continuing

structural violations that they face. Some scholars consider transformative justice to align more

closely to notions of distributive justice than to the restitution model of legal redress in its attempt

to ‘recognise unjust distributions of resources and seek to redistribute accordingly, ensuring that

underlying causes of injustice are addressed.’

In many situations of grave or systemic injustice, it

would be inappropriate to focus on the restitution objective of return to the status quo ante in

constructing reparations as it is often that very paradigm which created the conditions from which

the wrongdoing arose. Return would entail continued victimisation of those suffering the conse-

quences of the abuses in such situations, and increase the likelihood of recurrence in the future. In

the context of existing structural inequalities, the Inter-American Court of Human Rights recog-

nised in Cotton Field v Mexico that reparations should be designed to effect structural change and

to redress the inequalities which gave rise to or allowed the wrongdoing to take place, stating:

bearing in mind the context of structural discrimination [against female victims] ...the reparations

must be designed to change this situation, so that their effect is not only of restitution, but also of

rectification. In this regard, re-establishment of the same structural context of violence and discrim-

ination is not acceptable.

This concern with the causes of violence and the rectification of such moves reparations away from

the strict implementation of the principle of restitutio in integrum and allows for a transformative

69. ibid 10-11.

70. Garrido and Baigorria v Argentina (Reparations and Costs)Inter-American Court of Human Rights Series C No. 39

(27 August 1998) [43].

71. Waldron, ‘Superseding Historic Injustice’ (n 55) 6.

72. Paul Gready and Simon Robins, ‘From Transitional to Transformative Justice: A New Agenda for Practice’ (2014) 8

International Journal of Transitional Justice 339.

73. Saris and Lofts, (n 23) 93; FIDH, ‘Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation’ (22

March 2007) (Nairobi Declaration 2007) para.4

TION-ON-WOMEN-S-AND> accessed 10 January 2017.

74. Case of Gonz´

ales et al. (‘‘Cotton Field’’) v. Mexico (Preliminary Objection, Merits, Reparations, and Costs) Inter-

American Court of Human Rights Series C No. 205 (16 November 2009) [450].

260 Netherlands Quarterly of Human Rights 36(4)

approach within a judicial framework. Nevertheless, the political process is more likely to be

amenable to a flexible approach to the basis and assessment of awards, and to allow the infusion

of transformative justice principles into the process. Political reparations processes, which are

concerned with transformative justice, may thereby engender meaningful change for victims within

their particular social and political contexts in a manner which legal reparations are less apt to

achieve. As such, effective reparations programmes should go beyond the direct, individualised

redress provided for through court processes to address the circumstances and contributory factors

of historical atrocities, rather than dealing only with the specific wrong and the resulting harm.

Processes constructed on transformative justice principles are more appropriate for dealing with

transatlantic chattel enslavement, as the foundational premise and justification for the so-called

‘trade’ was the extreme racialisation and marginalisation of particular groups of people to be

exploited for profit. The reincarnation of extreme inequality between people racialised as black

and white through the decades following legal abolition of slavery belies the argument that the

process of ‘emancipation’ in itself was transformative. Individuals would still be able to benefit

from reparations, in that they would respond to individual needs for rehabilitation, such as coun-

selling, but also be aimed at redressing wider common needs of descendants of the ‘transatlantic

slave trade’.

4. Reparations for transatlantic slave trade and historical enslavement

When applying the rubric of reparations, it is important to ensure that the theoretical and practical

parameters of such are met to ensure its coherence. In other words, there ought to be identifiable

victims who have suffered harm caused by illegal or wrongful acts committed by perpetrators.

Dinah Shelton outlines five factors which determine the likelihood of reparations being adopted in

cases of historical injustice:

1. the perpetrator is still identifiable and living;

2. the victims, or their immediate descendants, are identifiable and living;

3. there is political pressure and strong, cohesive support from victims in demanding

reparations;

4. the historical injustice is compelling and well-documented; and

5. there exists continued harm and a causal connection between present harm and the past

injustice.

The schism between historical injustices and the provision of redress through both legal and

political means is apparent in the case of the Japanese-Americans interned by the US during the

Second World War. Despite the fact that some of those interned were unsuccessful in bringing

legal proceedings against the government in the years after the war, it was not until the late 1980s,

after years of political lobbying, that the US government agreed to pay compensation to each

surviving internee.

However, the payment itself, only $20,000 for each victim, was a symbolic

gesture, a ‘token’ that did not correspond to the severity of individuals’ suffering.

Moreover,

75. Shelton, Remedies in International Human Rights Law (n 39) 464.

76. See Eric K Yamamoto and Liann Ebesugawa, ‘Report on Redress The Japanese American Internment’ (n 63).

77. Alfred Brophy, ‘Some Conceptual and Legal Problems in Reparations for Slavery’ (2003) 58(4) NYU Annual Survey

of American Law 497, 500.

Moffett and Schwarz 261

Peruvian-Japanese who were abducted by American forces to be interned in the US during the

same period were originally excluded from the scheme, only obtaining $5,000 each after success-

fully challenging the law through the courts. Also excluded from the process were those victims

who had died before the passing of the law in 1988, narrowing the pool of victims who were

awarded compensation. Spouses, children and parents were only eligible for awards where the

victim had survived up to the enactment of the legislation, but died before payment had been

made.

The extent to which Japanese-American reparations provide support for claims relating to

enslavement and other abuses crossing generations is therefore limited, as reparations took place

only forty-three years after the conclusion of the war and were only awarded within the lifespan of

the victims.

The claim that it would be unjust to make present actors responsible for the wrongs of history

holds significant sway in the public debate surrounding the issue of reparations for transatlantic

enslavement. Kukathas argues that agents – victim and perpetrator – must be identifiable, and ‘one

generation cannot be asked to atone for the sins of earlier ones’.

While this critique might apply

to a case against the descendants of slavers, it does not quash the more prevalent claims against

states and corporations for their role in enslavement. Although the individual perpetrators of the

slave trade have long since died, states have remained constant – particularly those European states

which perpetrated the ‘trade’. A number of corporations that participated in human enslavement

also continue to exist into the present, either directly or indirectly. Like a corporation, a state is

‘‘treated as a unity, consistent with its recognition as a single legal person in international law’’.

The individuals operating within a state’s organs of government therefore operate within the state

as a legal entity, rather than constituting it. The temporal restrictions on liability which apply in the

case of natural persons do not, therefore, apply to the state, which has a lifetime of its own. The

organisational structures of the European ‘slaver’ states have remained largely undisturbed since

the period of transatlantic enslavement, and the rules of state succession are unbroken. This

formulation of liability in the hands of European nations and corporations should also be consid-

ered in relation to Arab slavers, who were the architects of an analogous ‘trade’ in African people

in central and eastern Africa.

Identifying living victims of enslavement or their immediate descendants is problematic for

those advocating redress. Those people that directly suffered from the system of chattel enslave-

ment perpetrated by European nations, and their immediate descendants, are now long-past.

Meeting this requirement in relation to individual victims is therefore close to impossible. The

claims of states that were the primary victims of the harms of enslavement overcome this

limitation through the same rules of state succession, which continue the liability of perpetrator

states. For instance, the CARICOM claim focuses on the claims of its Caribbean member states

against the European states that participated in theinjusticesinrelationtotheirterritories.Sucha

characterisation of the identity of victims would likely open the door to claims from West

African states who had their populations ravaged by the institution of transatlantic enslavement,

as well as the South American countries that were the primary destination for enslaved

78. Civil Liberties Act of 1988, Pub. L. 100–383, title I, August 10, 1988, 102 Stat. 904, 50a U.S.C. § 1989b et seq. s 7;

Yamamoto and Ebesugawa (n 76) 272.

79. Chandran Kukathas, ‘Who? Whom? Reparations and the Problem of Agency’ (2006) 37 Journal of Social Philosophy

330, 331.

80. Crawford (n 43) 83.

262 Netherlands Quarterly of Human Rights 36(4)

Africans.

The CARICOM claimcould also set a precedent for other regionalorganisations, such as

the African Union, toclaim the victim identity of member states. Claims constructing collectives of

victims within a state may also overcome the direct victim limitation, although establishing a

sufficiently coherent identity as to qualify as a legal entity may be difficult to establish.

Collective legal identity is generally only recognised in relation to indigenous and tribal peo-

ples, and may not extend to the disperse communities of the descendants of enslaved persons in the

African diaspora. The most apparent groups, which can establish such collective rights, have been

indigenous people, who share the same culture, laws and history.

That said other groups of

individuals who have less cultural and identity bonds have been collectively recognised as having

rights to reparations, such as victims of particular crimes (gender based or sexual violence, child

soldiers), war widows, orphans and those disappeared.

In such cases the strength and unity of

such victims has been based on them organising themselves into collectives to demand reparations,

thereby being a political pressure group, often turning to the courts to seek redress.

In light of Shelton’s third element of political pressu re and strong, cohesive support from

victims in demanding reparations,

claims relating to transatlantic enslavement face significant

challenges. In the Caribbean context, official state support for the reparations agenda and the

organisation of the CARICOM Reparations Commission, as well as national reparations commis-

sions amongst member states, speaks to the increasing political will of victim states. However,

these states face internal volatility and fracturing between the official narratives and the expecta-

tions and wishes of those reparationists and descendants operating at the grassroots. The requisite

capacity to exert political pressure on the wrongdoing states may still be lacking in the CARICOM

claims, as European states continue to deny responsibility to make reparations on the basis that the

enslavement was ‘legal at the time’. David Cameron’s visit to Jamaica, for instance, made Britain’s

refusal to engage with the reparations claims clear, indicating that there is not presently sufficient

political leverage to get to the point that responsible states involved in the slave trade will want to

make a settlement on reparations.

The historical documentation of the transatlantic slave trade is extensive and sufficiently main-

tained so as to establish the nature and extent of harms committed. Shelton’s fourth factor is

therefore easily satisfied in relation to the brutal trade. Although establishing legal wrongdoing

may be out of reach, the moral and political claim to the severity of the injustice is compelling.

Reparations may be awarded in cases where the perpetrators purported the legality of the abuses

provided there is a sufficiently strong moral justification, such was the case in relation to German

81. Lovejoy finds that 11,698,000 individuals were exported from Africa between 1450-1900. Around 35.3%of all

enslaved victims of the ‘transatlantic trade’ were delivered to Brazil, and 22.1%were delivered to the Spanish Empire

predominantly in South and Central America. See Paul E. Lovejoy, ‘The Volume Of The Atlantic Slave Trade: A

Synthesis’ (1982) 23 Journal of African History 473; Hugh Thomas, The Slave Trade, The Story of the Atlantic Slave

Trade: 1440-1870 (Simon and Schuster Paperbacks 1997).

82. United Nations General Assembly, ‘UN Declaration on the Rights of Indigenous People’ (13 September 2007) UN Doc

A/RES/61/295.

83. FIDH, ‘Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation’ (22 March 2007) (n 73)

; See the practice in

Sierra Leone, Truth and Reconciliation Commission of South Africa, ‘Report Vol.II’ (date) ch4 paras 69-70

%202.pdf>; Timor-Leste Commission for Reception, Truth and

Reconciliation in East Timor –’Chega!’ (2005) pt 11 para 12.9 .

84. Shelton, Remedies in International Human Rights Law (n 39) 464.

85. Richard Falk, ‘Reparations, International Law, and Global Justice: A New Frontier’ in de Greiff (n 63) 494.

Moffett and Schwarz 263

atrocities committed during World War II. Establishing continuing harm and a causal connection

to the past injustice as required to satisfy Shelton’s fifth factor may be more difficult in relation to a

system abolished in the 1800s. Claims based on the collective impact of an injustice, as are

advanced by CARICOM, require a sufficient causal nexus to the slave trade and Western states’

involvement in such, as well as evidence of that harm having translated through the generations to

contemporary institutions of racism, deprivation and discrimination.

There is increasing evidence to support the intergenerational impact of major injustices, with

transgenerational harms being noted in the children and grandchildren of those who have suffered

from political repression or conflict.

The extent to which this travels to generations beyond

grandchildren to the degree that claims for transatlantic enslavement require remains unclear.

However, the effects of structural injustices can be more easily traced in such a case including

the economic impact of enslavement and the systems of labour put in place in the Caribbean on the

contemporary states.

The lasting impacts of historical injustices on nations were also recognised

at the Durban 2001 World Conference on Racism, which stated that ‘ ...historical injustices have

undeniably contributed to po verty, underdevelopment, marginalization, soci al exclusion, eco-

nomic disparities, instability and insecurity that affect many people in different parts of the world,

particularly in developing countries’.

This falls far short of the evidentiary requirements typically

set in legal proceedings, and claimants therefore find themselves stumbling upon the limits of the

law in addressing historical injustices. However, such rese arch may still be persuasive in the

political arena.

Starzyk et al and Nussio et al suggest the relevance of the political ideology of the perpetrator

state in determining the likelihood of reparations being granted. Starzyk et al suggest that repara-

tions are more likely to be publicly accepted or sociably feasible where they do not compromise

social values.

This can create barriers to historical claims where the dominant narratives con-

ceive of people as individuals with outcomes disconnected from family and racial histories. Nussio

et al also point to other factors that prompt reparations, such as more left-leaning political ideology

or group-based or collective understandings of guilt. This factor underscores the significance of

public support in the viability and sustainabi lity of reparations.

Thus for the UK and other

Western countries involved in the transatlantic slave trade, there would need to be significant

social mobilisation and support for reparations by Caribbean states to overcome the typ ically

individualistic paradigm of political thought. New law may be a space to create such a dialogue

and framework to mobilise around. A multinational treaty between the Caribbean, African, Eur-

opean and Arab states may be a way forward to concentrate minds on appropriate development and

symbolic reparations needed to address the consequences of the slave trade.

86. Michael Simpson, ‘The Second Bullet: Transgenerational Impacts of the Trauma of Conflict within a South African

and World Context’ in Yael Danieli, International Handbook of Multigenerational Legacies of Trauma (Kluwer

Academic/Plenum Publishing Corporation 1998) 487.

87. Sidney Mintz, Caribbean Transformations (Aldine Publishing 1974) 31.

88. Durban Declaration 2001 (n 4) art 158 accessed 8 January 2017.

89. Katherine B. Starzyk, Danielle Gaucher, Gregory D B Boese, and Katelin H Neufeld, ‘Framing Reparation Claims for

Crimes Sgainst Humanity: a Social Psychological Perspective’ in Jo-Anne M. Wemmers (ed.), Reparations for Victims

of Crimes Against Humanity (Routledge 2014).

90. Enzo Nussio, Angelika Rettberg, and Juan Ugarriza, ‘Victims, Nonvictims and Their Opinions on Transitional Justice:

Findings from the Colombian Case’ (2015) 9(2) International Journal of Transitional Justice 336, 343.

264 Netherlands Quarterly of Human Rights 36(4)

4.1 What form of reparations would be appropriate?

The harms of transatlantic slave trade over the course of the centuries that it was perpetuated defy

quantification, and any attempt to do so would likely result in figures in the trillions. In 1999, for

instance, the African World Reparations and Repatriation Truth Commission called for ‘those

nations of Western Europe and the Americas and institutions, who participated and benefitted from

the slave trade and colonialism’ to pay $777 trillion to Africa within five years.

Yet as Howard-

Hassmann points out, this amount is sixty-two times the US GDP in 2005 and there is no indication

of how such an amount was arrived at.

Indeed she goes as far to suggest that such a huge amount

of compensation undermines the feasibility of such reparations. Instead such measures should be

‘reasonable’ and ‘payable without significant disadvantage to those making the payment.’

More-

over, assessing the degree of damages is in most part speculative as it necessarily attempts to

quantify the loss and suffering of millions of potential individuals and societies over the course of

multiple centuries; this would likely frustrate the prospect of getting responsible actors around the

table to negotiate.

The impact of intervening factors on the suffering of the descendants of enslaved persons, and

the passage of time, compound the difficulties of assessing reparations awards, making an accurate

determination of a proportionate award impossible. The dispersal of the victim populations, the

degrees of separation between individual enslaved persons and their descendants, and the structural

and systemic nature of the continuing harms make individual compensation unfeasible in the

context of transatlantic enslavement. Identifying individual victims and providing sufficient evi-

dence to establish harm and a causal nex us would be arduous and often fruitless. Moreover,

quantification of harms can diminish the gravity of the injustices and undermine reconciliation

and meaningful acknowledgement of suffering. ‘Payment’ in this context can become a ‘dirty

word’; perpetrators can be seen as attempting to obviate their culpability through ‘blood money’

designed to pay off their guilt, and victims can be perceived as opportunistic to benefit from the

abuses.

It would be very difficult to establish direct or indirect intergenerational harms suffered by an

individual descendant and caused by the harm inflicted on their ancestor. Establishing the wide-

spread existence of such specific and inherited contemporary harms in large cross-sections of

society would be even more untenable. Viewing reparations through a transformational justice

lens would therefore be more appropriate in this context, tackling the causes and consequences of

the slave trade as a whole as opposed to only the direct symptoms suffered by those enslaved. The

mass exploitation and atrocities committed against enslaved people are thereby viewed as having

direct harms upon their children, and potentially also upon subsequent generations. The system of

enslavement is also conceived as having wider repercussions for Caribbean states. In this context,

it is not so much the direct acts of enslavement of particular persons that continue to harm the state,

but the structures of abuses and the institutional systems put in place at the time. Du Plessis

91. Participants of the First Historic International Reparations and Repatriation Truth Commission Conference, ‘The Accra

Declaration on Reparation and Repatriation’ (12 August 1999).

92. Rhoda E Howard-Hassmann, Reparations to Africa (University of Pennsylvania Press 2008) 28.

93. ibid.

94. Du Plessis (n 37) 651.

95. Claire Moon, ‘‘Who’ll Pay Reparations on My Soul?’ Compensation, Social Control and Social Suffering’ (2012)

21(2) Social and Legal Studies 187, 194.

Moffett and Schwarz 265

identifies that it is more feasible to seek reparations to address the legacy of enslavement, rather

than to try and redress the historical injustice itself.

This framework lends itself to the construc-

tion of collective reparations and symbolic measures to redress the suffering of people alive in the

present.

CARICOM’s Ten Point Reparation plan is distributive in nature given the historical nature of

the abuse. As Teitel notes:

With the passage of time, reparatory projects move farther from the traditional model of corrective

justice. After time, wrongdoers don’t pay; innocents do. And, after time, redress goes not to original

victims but to their descendants. With the passage of time, therefore, reparatory schemes look less like

conventional corrective justice and more like a social distribution and political question ...more like

distributive schemes.

Such measures are therefore more appropriately dealt with in the political arena, rather than

through judicial mechanisms and individual reparations. The CARICOM Ten Point Plan seeks a

distributive, and perhaps even transformative, justice settlement that addresses structural harms

connected to enslavement. More broadly such reparations are transformative in renegotiating the

status of Caribbean states and the ongoing unequal power relations with former colonial powers.

As structural measures premised upon the legacies of enslavement rather than individual con-

nections to enslaved persons, the CARICOM claim is collective in nature. Collective reparations

are remedial measures aimed at responding to the harm suffered by a group, community or people

and providing ‘shared benefits’ to the victim population that reflect the collective harm shared by

the group.

This harm can be attributable to the collective as such, or to a group of individuals who

make up a collective, and may be based on violations directed at their identity or their belonging to

the group. Jewish people constituted such a collective during the Holocaust.

The CARICOM

claim seeks to classify modern citizens s uffering from the legacies of enslavement as such a

collective. The lack of specificity in identifying individual recipients of state-based reparations

poses some challenge, as the collective right to reparations (unlike the identification of harm)

seems to be limited to a multiplicity of individuals in a group rather than the group itself.

100

Collective reparations can include symbolic measures of acknowledgment, apologies, compensa-

tion, pensions, rehabilitative measures including physical and psychological health services, social

and legal services, educational support and other infrastructural support. In Peru, collective repara-

tions have included educational scholarships, specialised healthcare, and memorials.

101

Measures

responsive to the needs of victimised populations can assist in addressing the destruction of

communal bonds and culture, which was a significant feature of transatlantic enslavement and

associated genocide against indigenous communities.

102

96. Du Plessis (n 37) 652.

97. Ruti Teitel, Transitional Justice (Oxford University Press 2002) 141.

98. Friedrich Rosenfeld, ‘Collective Reparation for Victims of Armed Conflict’ (2010) 92 International Review of the

Red Cross 731, 733-734.

99. ibid 734.

100. ibid 736.

101. Cristi´an Correa, ICTJ, Reparations in Peru: From Recommendations to Implementation (June 2013).

102. Hugo van der Merwe, ‘Reparations Through Different Lenses: The Culture, Rights and Politics of Healing and

Empowerment after Mass Atrocities, in Wemmers (n 89) 200, 202.

266 Netherlands Quarterly of Human Rights 36(4)

Reparations for historical injustices can serve as a lens for accountability and provide psycho-

logical healing to victimised populations as collectives and individuals. As Hamber and Wilson

assert, the use of symbolic reparations, such as memorials, serve to:

acknowledge and recognise the individual’s suffering and place it within a new officially sanctioned

history of trauma. Symbolic representations of the trauma, particularly if the symbols are personalised,

can concretise a traumatic event, and help re-attribute responsibility. The latter stage is important

because labelling responsibility can appropriately redirect blame towards perpetrators and relieve the

moral ambiguity and guilt survivors often feel.

103

Memorials can also serve as ‘vehicles for the intergenerational transmission of historical mem-

ory’,

104

cementing a collective’s sense of identity, value, and belonging, as well as helping to

ensure that atrocities are not repeated. Yet there were millions of victims of the transatlantic slave

trade, many of whom there may be no record of, so such a memorial would be unlikely to be able to

sufficiently document each individual. Instead a visual memorial in a public place can serve as

permanent physical reminder in society’s consciousness to acknowledge, remember and not forget

the atrocities of the past, such as the ‘Ark of Return’ memorial in UN plaza in New York opened in

2015 or the underwater ‘Vicissitudes’ sculpture in Granada which has now become imbued as a

memorial to slaves who were thrown overboard. Official guarantees of non-repetition can also

assist in preventing the reoccurrence of harms, instituted alongside concrete legislative and other

measures to ensure their success. However, such mea sures need to be located not just in the

Caribbean, but in African countries and states responsible for slavery in Europe and MENA, so

as to keep alive the public memory of such atrocities and for them to never be repeated.

Acknowledgement of wrongdoing is vital to the success of a reparations programme, and

meaningful apologies are an integral aspect of such recognition. Successful apologies usual ly

include an acceptance of responsibility, sincere statements of regret, a willingness to make amends

and prevent future violations without any excuses or offensive explanations.

105

A successful

apology can meaningfully contribute to reconciliation and reparation, whereas unsuccessful apolo-

gies can simply add insult to injury. Insincere apologies or half-hearted acknowledgements of

responsibility, for instance, in trying to close a chapter on the past might ‘make survivors feel that

reparations are being used to buy their silence and put a stop to their continuing quest for truth and

justice.’

106

Perhaps the CARICOM claim should engage European and MENA states to engage on

the reparations issues as a symbolic way to take moral, not legal, responsibility for the transatlantic

slave trade, provide apologies recognising enslavement as reprehensible by today’s standards and

make efforts on developmental terms with affected states to heal the long term consequences of the

slave trade. This may have to take the form of an international treaty that bars any individual,

collective or state claim against those states involved in the slave trade, in exchange for focused

development or cancellation of debt and symbolic reparations.

103. Brandon Hambe r and Richard Wilson, ‘Symbolic Closure Through Memory, Reparation and Reven ge in Post-

Conflict Societies’ (2002) 1(1) Journal of Human Rights 35, 38.

104. Hamber, ‘Repairing the Irreparable’ (n 21) 219.

105. Michael Marrus, ‘Official Apologies and the Quest for Historical Justice’ (2007) 6(1) Journal of Human Rights 75;

Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation, (Stanford University Press 1991) 17;

Michael Cunningham, ‘Saying Sorry: the Politics of Apology (1999) 70 The Political Quarterly 285.

106. Hamber and Wilson (n 103) 46.

Moffett and Schwarz 267

Development funds have been part of reparations ordered by human rights courts. By way of

example in the Moiwana Community v Suriname case – after armed forces of Suriname attacked

the village of Moiwana, massacred over 40 people, razed the village to the ground, forced survivors

to flee into exile or internal displacement, and failed to adequately investigate the massacre – the

Inter-American Court of Human Rights ordered the state to set up a development fund to provide

health, housing and educational programmes for community members.

107

The development fund

was to be represented by three members: one selected by the victim, one by the state, and the third

agreed between the victims and the state.

108

To complement this fund the Court ordered the state to

provide more symbolic measures of a public apology and acknowledgement of its responsibility, as

well as to construct a memorial.

109

In other cases before the Inter-American Court, the Court has

ordered extensive rehabilitative measures to communities affected by gross violations of human

rights, such as housing and development programmes, healthcare centres, cultural education and

infrastructure.

110

Such extensive infrastructure would probably be beyond the bounds of a treaty on

reparations for the transatlantic slave trade, but directing development aid to such countries to

tackle illiteracy, technology asymmetry and psychological rehabilitation as demanded by CAR-

ICOM may not be.

Such developmental or symbolic reparations can be difficult to distinguish from state obliga-

tions to tackle poverty and exclusion, and to provide certain services. When controlled by perpe-

trators who maintain hierarchical positions of power over victimised populations, such measures

can represent more paternalism and charity, framing victims as a dependent group rather than as

individuals with autonomy.

111

As Gifford identifies:

When European governments respond, as they do, to the injustices suffered by Black people, it is by

way of development aid or anti-discrimination laws, so that generous Europeans appear to be bestow-

ing benefits on poor suffering Africans. There is often an overtone of condescension: the Africans are

suffering because their leaders have messed things up, but we still help.

112

While ‘development’ can be constructed and developed with input from the victims, they are

framed as collective beneficiaries rather than as ind ividuals with rights and agency. Framing

measures as reparative – as connected to specifi c acts of wrongdoing – as well as involving

affected communities in the construction of programmes can therefore be essential in countering

these notions of dependency and marginalisation. Engagement with transformational reparations

may be a way forward in reimagining narratives of victimisation and hundreds of years of exploi-

tation and continuing discrimination towards inclusivity and respect of the dignity of descendants

of the transatlantic slave trade and historic enslavement.

107. Moiwana Community v Suriname, (Preliminary Objections, Merits, Reparations, and Costs) Inter-American Court of

Human Rights Series C No. 124 (June 15 2005) [214].

108. ibid [215].

109. ibid [216-218].

110. Plan de S´

anchez Massacre v. Guatemala, Judgment (Reparations) Inter-American Court of Human Rights Series C

No. 116 (19 November 2004) [105] and [110].

111. Verdeja (n 1) 460.

112. Anthony Gifford, ‘Pipe Dream or Necessary Atonement?’ (2007) 36(1) Index on Censorship 89, 94.

268 Netherlands Quarterly of Human Rights 36(4)

5. Conclusion

Reparations are a symbolic way of accounting for a society’s past wrongdoing. No amount of

money is ever going to undo the harm caused by gross violations of human rights. While today’s

generation and government may be decades or even centuries removed from the atrocities of

enslavement, colonialism and the genocide of indigenous peoples, they nevertheless indirectly

benefit from the economic development arising from the economic exploitation of labour, capital,

and land. Reparations look not only to the past, but to reaffirm the contemporary legal order and the

morality of the state by recognising that such past atrocities were reprehensible. They also serve to

distinguish the state from its predecessor, affirming that the society has advanced to meaningfully

acknowledge the dignity and equality of all human beings. Such measures may only be symbolic,

but they can provide for practical redress, affirmative action or the restitution of land to indigenous

populations.

It is clear that the issue of reparations for the transatlantic slave trade is not going to go away.

CARICOM’s 10-point plan focusing on symbolic redress and rebalancing of ongoing structural

inequalities domestically and internationally provides a way forward for opening the discussion on

redressing the transatlantic slave trade in political and moral terms. Given the number of states

involved, the lack of international legal basis for claiming reparations, and the passage of time, a

multinational treaty may be the best way forward, rather than pressuring each individual state

responsible for the slave trade. In the face of increasing racism and xenophobia across the world,

political maturity and moral leadership in Western countries in making overtures to symbolic

reparations to descendants of the slave trade could go a long way in reaffirming the wrongs of

the past and promoting the value these populations bring to the international community.

Declaration of conflicting interests

The author(s) declared no potential co nflicts of interest with respect to the research, authorship, and/or

publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Moffett and Schwarz 269

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