Repair or Reparations?

As far as I understand it, and I am just as poor an expert on the matter as most of the proponents of reparations for the evils of slavery are, “Reparation” is a principle of law that has existed for centuries as the obligation of a wrongdoing party to redress the damage caused to an injured party. “Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would have existed if that act had not been committed.” Basically this would mean the repatriation of the West Indian population of African descent to wherever their ancestors came from in a swathe across Africa.

In 2001, the United Nations stated, “Every internationally wrongful act of a State entails the international responsibility of that State.” Of course the problem with that is that someone will have to prove that the slave trade was the act of a State and not the unregulated commerce of ships and their masters. There was, as far as I know, never any legislation legalizing the slave trade. Of course, it might be argued that the States involved should have enacted laws to put a stop to the slave trade in its infancy. The problem is to demonstrate that a State “not acting” constitutes “an act” by a State. This is the nonsense lawyers thrive on.

International human rights treaties provide that victims of international crimes have the right to seek and obtain effective remedies for the violation of their rights. The problem again is to prove that today’s West Indians of African descent are “victims”. The most cursory review of living conditions in the coastal countries of West Africa that were recently struck by the Ebola Virus or even the larger countries such as Mali, Niger and even Sudan where slavery still flourishes, will convince the level-headed observer that these countries lag far behind Caribbean nations as far as living standards, political freedom, education and social justice are concerned. The fact that West Indians are much better off than their African brethren does not of course minimize the heinous nature of the crimes associated with the slave trade, but it does make it difficult to prove they are victims. It will most certainly be argued that the slaves and their immediate relatives were victims, but their descendants are doing very nicely thank you, better in fact than their far distant relatives back in Africa.

The Basic Principles and Guidelines on the Right to a Remedy and Reparation provide that “victims” include those who have individually or collectively suffered harm, and may include the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. The key concept here is “immediacy”; “the immediate family or dependents of the direct victim” have the right to a “remedy and reparation”. Almost 200 years after the abolition of slavery, it is going to be an uphill struggle to demonstrate any right to compensation.

And even if a strong case is made and is successful, a common misconception is that reparation is synonymous with compensation. Although monetary compensation is common, other forms of reparation include restitution, rehabilitation, satisfaction and guarantees of non-repetition. A court might well rule that a promise never to do it again will suffice. We all know how courts work. Restitution restores the victim to the situation that that would have existed had the crime not happened. This may include restoration of liberty, legal rights, social status, family life and citizenship; return to one’s residence; and restoration of employment and return of property. With respect to the above, I would suggest that the nations of the West Indies are the envy of many an African State, and few West Indians, if any, really want to go back.

Guarantees of non-repetition, public acknowledgment of a crime and acceptance of responsibility, the restoration of dignity through commemoration, remembrance and education are other aspects of reparations. Compensation includes any quanitifiable damage resulting from the crime, including “physical or mental harm, pain, suffering and emotional distress; lost opportunities, including education; material damages and loss of earnings, loss of earning potential; harm to reputation or dignity; and costs required for legal or expert assistance, medicines and medical services, and psychological and social services.” Proving any of this will be a stretch given the pathetic state of most African nations. Rehabilitation may include medical and psychological care as well as legal and social services. Some might feel, however, that West Indians have to free themselves from their “mental slavery” as Bob Marley and Rick Wayne have put it.

It might seem that the nations of the EU are continually pumping money and other forms of aid into the Caribbean. Whether they do this out of a desire to help the less fortunate, or for their own selfish reasons, or from a conscious or unconscious sense of guilt, I do not know, but what I do know is that if such aid were to dry up suddenly in the face of a reparations war then the countries of the Caribbean would be much worse off than they are today. But perhaps the biggest challenge for the reparations seekers will be to convince the world that they are not just opportunists seeking other forms of financial salvation to cover their own inability to run their economies.