N’COBRA’s Testimony at
The State of Civil and Human Rights in the United States
Hearing Before the Senate Judiciary Subcommittee on the
Constitution, Civil Rights, and Human Rights
Submitted by Kamm Howard, Legislative Commission Chair, National Coalition of Blacks for Reparations In America (N’COBRA) ncobrachicago@gmail.com
N’COBRA’s contribution to the forum will focus on the use of international human rights instruments in furtherance of our goals to be repaired from the centuries-long injuries of enslavement, Jim Crow segregation (apartheid) and the continued injurious effects of crimes against our humanity. .
Before identifying the instruments that mandate the State to initiate and sustain reparative measures, N’COBRA offers our definition of reparations.
Reparations is the process of repairing, healing and restoring a people who were injured, due to their group identity, in violation of their fundamental human rights, by a government, corporation, institution or individual.
This definition is one that focuses on initiating and engaging processes that gets this community to wholeness not solely on compensation, although compensation is one aspect of full reparations, as will be detailed below.
There are several international instruments that mandate and empower the Senate to legislate the repair of the African descendant community. The Durban Declaration and Program of Action (DDPA), the outcome document of the United Nations World Conference Against Racism (WCAR) sits at the top of the list.
The DDPA
The relevant portions of this document are those paragraphs that settle the issue of 1) were the actions of enslavement, the Slave trade, colonialism and apartheid international crimes against humanity, 2) were there injuries resulting from those actions, 3) do those injuries remain among the descendants of those affected, and 4) is there an obligation on the part of the injuring parties (states, corporations and institutions) to repair the injuries. In each of these areas, the answer was yes.
In specific regards to the criminal status of the actions of slavery, apartheid (Jim Crow segregation) and colonialism* the DDPA, declares:
13. We acknowledge that slavery and the slave trade, including the transatlantic slave trade, were appalling tragedies in the history of humanity not only because of their abhorrent barbarism but also in terms of their magnitude, organized nature and especially their negation of the essence of the victims, and further acknowledge that slavery and the slave trade are a crime against humanity and should always have been so….
15. We recognize that apartheid and genocide in terms of international law constitute crimes against humanity…
Pertaining to the continued and persistent negative effects and legacy of the crimes,
14. We recognize that colonialism has led to racism, racial discrimination, xenophobia and related intolerance, and that Africans and people of African descent, and people of Asian descent and indigenous peoples were victims of colonialism and continue to be victims of its consequences. We acknowledge the suffering caused by colonialism and affirm that, wherever and whenever it occurred, it must be condemned and its reoccurrence prevented. We further regret that the effects and persistence of these structures and practices have been among the factors contributing to lasting social and economic inequalities in many parts of the world today;
Finally, on the obligation on the part of the States to engage reparative justice:
101. With a view to closing those dark chapters in history and as a means of reconciliation and healing, we invite the international community and its members to honor the memory of the victims of these tragedies. We further note that some have taken the initiative of regretting or expressing remorse or presenting apologies and call on all those who have not yet contributed to restoring the dignity of the victims to find appropriate ways to do so ….;
102. We are aware of the moral obligation on the part of all concerned States and call upon these States to take appropriate and effective measures to halt and reverse the lasting consequences of those practices;
104. We also strongly reaffirm as a pressing requirement of justice that victims of human rights violations resulting from racism, racial discrimination, xenophobia and related intolerance, especially in the light of their vulnerable situation socially, culturally and economically, should be assured of having access to justice, including legal assistance where appropriate, and effective and appropriate protection and remedies, including the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination, …
The International Covenant for Civil and Political Rights (ICCPR), the United Nations Minority Declaration, and the International Covenant for the Elimination of Racism (ICERD) are the next relevant instruments.
ICCPR
The ICCPR’s article 27 spells out a special relationship of the state to its national minorities – differentiating from immigrant minorities and subgroup minorities.
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
National minorities also have a unique characteristic in that they were within the national boundaries at the time a nation was formed and that they had a significant role in the formation of the nation. In addition to Native Americans, Afrikans in American, and those Hispanics who self-define as Chicano’s share this status. In 1776 there were 500,000 Africans in America and accounted for 20% of the population. As such, this government has a special and legal obligation to positively legislate policy effecting people of Afrikan descent distinctively separate from sub-group minorities and immigrant minorities in America.
UN Declaration on Minorities
The United Nations Declaration on Minorities, particularly spells out the separate special rights of national minorities. The standards of concern and scope of national minority rights are:
- Survival and Existence – any action for the protection of minorities should focus primarily on the protection of the physical existence of persons belonging to minorities, including protecting them from genocide and crimes against humanity
- Promotion and Protection of Identity – Central to the rights of minorities are the promotion and protection of their identity. Promoting and protecting their identity prevent forced assimilation and the loss of cultures, religions and languages.
- Equality and Non-Discrimination – Non-discrimination and equality before the law are two of the basic principles of international human rights law. The principle of nondiscrimination prohibits any distinction, exclusion, restriction or preference which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. There is no requirement to demonstrate discriminatory intent. The phrase “purpose or effect” refers to legislation and/or policies which may be textually neutral but are interpreted in a manner that results in discrimination. International human rights law prohibits both direct and indirect discrimination.
- Effective and Meaningful Participation – The participation of persons belonging to minorities in public affairs and in all aspects of the political, economic, social and cultural life of the country where they live is in fact essential to preserving their identity and combating social exclusion. … Participation must be meaningful and not merely symbolic, … Participation must be effective….For the participation of persons belonging to minorities to be effective, …States must also ensure that the participation of representatives of minorities has a substantial influence on the decisions which are taken, so that there is, as far as possible, shared ownership of these decisions.
Afrikans in America were brought to this country forcibly. In that process, nearly every human right recognized at the time and since were violated. Their national minority status, the singularly distinct racialized history and current unequal treatment in America, requires that all legislation that effects this group be constructed through the particular lens and scope of international minority rights. This will require and ensure reparative policy to be included within all future legislation of this nation.
ICERD
The International Covenant for the Elimination of Racism is particularly important to the issue of repair and healing of the Afrikan descendant community in America, especially when we view several of the Commission’s General Recommendations.
In General Recommendation 28 (CERD GC28), the Committee incorporated the Durban Declaration and Program of Action into the ICERD covenant. This is very important, because although, the US delegation walked out of Durban, having signed and ratified ICERD, it is of an obligation to bring its ICERD compliance in alignment with the DDPA. CERD GC28 recommends to States …
- f) To take into account the relevant parts of the Durban Declaration and Program of Action when implementing the Convention in the domestic legal order, in particular in respect of articles 2 to 7 of the Convention;
And
- (d) To take into consideration all aspects of the Durban Declaration and Program of Action concerning the fulfilment of its mandate.
This was reiterated, by CERD, in paragraph 30 of their concluding observations to America’s ICERD Periodic Review held in August 2014.
In CERD GC 34, the Committee particularly spells out a focused emphasis on People of Afrikan descent existing in States and calls for special attention and special measures by the State.
5. The Committee understands that racism and racial discrimination against people of African descent are expressed in many forms, notably structural and cultural.
6. Racism and structural discrimination against people of African descent, rooted in the infamous regime of slavery, are evident in the situations of inequality affecting them and reflected, inter alia, in the following domains: their grouping, together with indigenous peoples, among the poorest of the poor; their low rate of participation and representation in political and institutional decision-making processes; additional difficulties they face in access to and completion and quality of education, which results in the transmission of poverty from generation to generation; inequality in access to the labor market; limited social recognition and valuation of their ethnic and cultural diversity; and a disproportionate presence in prison populations.
7. The Committee observes that overcoming the structural discrimination that affects people of African descent calls for the urgent adoption of special measures … The need for special measures [for People of African descent] has been the subject of reiterated observations and recommendations made to the State parties under the Convention,
CERD GC 32 defines and lays forth the scope of special measures that are to be directed toward the elimination of racism.
13. “Measures” include the full span of legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programs and preferential regimes in areas such as employment, housing, education, culture and participation in public life for disfavored groups, devised and implemented on the basis of such instruments. States parties should include, as required in order to fulfil their obligations under the Convention, provisions on special measures in their legal systems, whether through general legislation or legislation directed to specific sectors in the light of the range of human rights referred to in article 5 of the Convention, and through plans, programs and other policy initiatives referred to above at national, regional and local levels
CERD Early Warning and Urgent Procedures are required when the nature of the human rights violations have reached “alarming levels”, CERD provides additional standards and guidelines.
The Committee has in fact adopted both early warning measures and urgent procedures to prevent as well as to respond more effectively to violations of the Convention. Criteria for early warning measures could apply when the following indicators are present:
• A significant and persistent pattern of racial discrimination, as evidenced in social and economic indicators;
• A pattern of escalating racial hatred and violence, or racist propaganda or appeals to racial intolerance by persons, groups or organizations, notably by elected or other State officials;
• Adoption of new discriminatory legislation;
• Segregation policies or de facto exclusion of members of a group from political, economic, social and cultural life;
• Lack of an adequate legislative framework defining and criminalizing all forms of racial discrimination or lack of effective mechanisms, including lack of recourse procedures;
• Policies or practice of impunity regarding: (i) violence targeting members of a group identified on the basis of race, color, descent or national or ethnic origin by State officials or private actors; (ii) grave statements by political leaders/prominent people that condone or justify violence against a group identified on the ground of race, color, descent, national or ethnic origin; (iii) development and organization of militia groups and/or extreme political groups based on a racist platform; …
The Afrikan descendant community has cited numerous examples of the above type violations existing toward this community that meet the criteria of “alarming levels,” that require ‘urgent procedures” as defined and understood by international norms, standards and laws. Police violence is just one such area, although a very significant area as well as mass incarceration.
International Law and Reparations
Finally, in observing and creating human rights legislation that’s reparative and healing of injuries to the humanity of people of Afrikan descent, Congress must look at how international law both defines reparations and determines what meets the criteria of reparations.
The Permanent Court of International Justice (ICJ). The ICJ lays out the “general and foundational rule for reparations in the Chorzow Factory case of 1928. Here, it held that reparations must, as far as possible, wipe out all consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.
The International Law Commission (ILC) In their Draft Articles on Responsibility of States for International Wrongful Act, the ILC fleshes out “all consequences” as full reparations. Full reparations include:
1. Cessation, Assurances and Guarantee of Non-Repetition –a state responsible for wrongfully injuring a people “is under an obligation to a) “cease the act if it is continuing, b) offer appropriate assurances and guarantees of non-repetition…” Many current discriminatory actions, like police violence, had their origins in slavery and Jim Crow apartheid and thus is a continued practice of injury. Cessation falls in line with the “halt” clause of the DDPA.)
2. Restitution – re-establish the situation which existed before the wrongful act was committed. To restore the victim to the original situation before gross violations of international law occurred. How includes restoration of freedom, recognition of humanity, identity, culture, repatriation, livelihood and wealth.
3. Compensation – The injuring State is obligated to compensate for the damage, if damage is not made good by restitution. Compensation is “any financially assessable damage suffered…” Proper compensation is such that is “appropriate and proportional to the gravity of the violation and circumstances.
4. Satisfaction – Provides a “means” of reparations for moral damage, such as emotional injury, mental suffering, and injury to reputation.” Apology falls under the reparative category of satisfaction. Apologies under international law have certain characteristics: acknowledgement that a legitimate rule was violated, full admission of fault and responsibility, expression of genuine regret and remorse, acknowledgement that there was/is no excuse/justification of the violation, a guarantee of non-repetition, and a willingness to do whatever it takes to repair the wrong/injury. (This last aspect of an apology identifies where the 2008 Senate apology fell short).
5. Rehabilitation – to correct the heart, mind and spirit damage of the people. Here attention is paid to the lasting and generational effects of the trauma of enslavement and segregation and current acts of police induced terror.
Moving Forward
What does a focus on these instruments mean going forward? First, America will begin to own its criminal racial heritage. This will remove this nation from the massive state of denial. It will begin the healing process for all people in this country. When a nation exist in denial, it will continue its injurious acts upon others indefinitely. Denial is a pathology.
This focus will lessen the evasive impetus to deny, shun, obfuscate, ignore or bury evidence that proves all Americans receive benefit today from those past injurious acts regardless of when they or their ancestor came to this country.
This focus will readily illuminate the facts and conditions that the degree of accumulated Afrikan injury prohibits Afrikans from benefiting at the same rate as others, but in many cases have a counter effect of intensifying the injury – thus the necessity of specialized policy.
This focus, will start the national dialogue on agreed upon global standards as opposed to standards imposed by a history of unjust acts and ill will toward people of Afrikan descent.
This focus will begin the conversation of reparations from the position that there are numerous actions and measures that can be taken that begin the process of repair that do not entail compensation to every Afrikan in America (or that will “bankrupt America because the debt is too huge.”)
This focus will affirm that Afrikan people have the human right to be repaired from past and ongoing crimes against our humanity; and that civilized states accept their obligation to restore justice to a people that the State has, in fact, grossly harmed.
This focus will assert the equality of humanity. And will empower progressive leaders to put forth reparative justice legislation, allowing US legislators to align themselves with global legislators that have already proactively and willingly began reparative, healing and restorative processes targeted toward their Afrikan descendant populations.
This focus will position America to stand in step with the global community in recognizing 2015 through 2024 as the International Decade of People of African Descent, under the theme, “Recognition, Justice, and Development.”
Conclusion
In August, America took an extreme beating in Geneva, Switzerland by the CERD Commission when delivering the ICERD periodic report. The High Commissioner of Human Rights, a native of South Africa, stated that apartheid is “flourishing” in America. Other comments summarizing the ICERD review in Geneva were ‘UN Condemns US ….,” “UN Experts Blast US…, US Slammed …,” and ” UN Experts Grill US…” In addition, the experts got a very telling eyewitness account of the racial discrimination during the Ferguson uprising. .
The ACLU rightfully calls this climate produced by the international exposure to America’s violations of the human rights of people of Afrikan descent, “a singular opportunity to hold Washington accountable.”
The Senate has an opportunity to hold itself and America accountable for its centuries of wrongs. .
If the Senate wants to move this Nation forward in human rights observance and enforcement, reparative justice targeted toward the Afrikan descendant community has to be at the forefront your actions. This will naturally require that a focused effort to broadening this Nation’s understanding of both reparations and human rights and the use of human rights instruments. International instrument gives Congress a legal (constitutional) ground and solid base to initiate a 21st century surge to right the horrific wrongs of this Nation’s past.
