By Cedric L Joseph
The principle of reparations is as old as warfare and humankind and is well established in international law. The principle requires the party who has caused injuries to another to redress the damage caused either through monetary means, rehabilitation or material labour. The principle has been generally enforced by the victor on the vanquished and has become the core of the peace settlement. Its punitive streak has been evident quite early, in 202bc, when Rome exacted reparations from a defeated Carthage, an African city state, at the end of the second Punic war. It was at Versailles (1919), however, that a defeated Germany was constrained to yield to exacting demands, the trenchant and prescient criticisms of which would launch J M Keynes into international acclaim. Seeming to be magnanimous, the succeeding generation would believe that it was rather generous, again with a defeated Germany, at the peace constructed at Yalta, Potsdam and Paris (1946).
In the instance of the enslavement of Africans, the trans-Atlantic trade, the attendant injustices and tragedies, the claim for justice and reparations in the form of compensation from the heirs of the beneficiaries of slavery to the descendants of the enslaved is of a different perspective. The claim is neither advanced nor imposed by the victor at the conclusion of warfare, but pits the plaintiff centuries later against the very powerful capital created from the huge compensation paid to slave owners upon emancipation. It was this capital that triggered the industrial revolution, first in Great Britain that became the major beneficiary of the trade in slaves and now the principal adversary of reparations. Thus the call for reparations represents the unfinished business of emancipation and obliges the deftest of Caribbean diplomacy to steer away from becoming a casus belli.
Interest in seeking reparations for slavery has been developing haltingly over the years, significantly some of it outside the Caribbean, in independent publications, within governments and at regional meetings. Since January 1989, in the United States, Democratic Congressman from Detroit, John Conyers, has introduced a bill in every Congress simply to create a commission to study some proposals. The bill is dispatched to a committee every year and has languished there, at least up to 2013. Then in 1993 the Organisation of African Unity, quite surprisingly in view of Africa’s involvement on the trans-Atlantic trade, established a group comprising Ali Mazrui, Jacob Ade Ajayi, and Dudley Thompson to prepare an agenda for reparations for the African slave trade. Thus, the First Pan African Conference on reparations, convened in Abuja in April, 1993, and declared that there were legitimate and moral reasons for the payment of reparations to African peoples by those responsible for the slave trade. Then in 1999, the African World Reparations and Repatriation Truth Commission, meeting in Accra in August 1999, called on Western Europe and the United States to pay $777 trillion within five years for the destructive impact on the development of Africa by the pillage of at least thirteen million Africans. Nothing further was heard about this.
Perhaps, the most impressive gathering convened in Durban, South Africa, August/September 2001 under the rather expectant but intimidating rubric, World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerances. A weighty Declaration of 122 paragraphs and an equally long Programme of Action smothered the issue of reparations and declined an apology. Led by the United Kingdom and the European Union, the best that the final text offered, at paragraph 13, was an acknowledgement that slavery and the slave trade were appalling tragedies and “are a crime against humanity, and should always have been so…”
In 2013 a significant turn in the unfolding of the claim came from independent, private and comprehensive historical research which unearthed the extent of the major financial beneficiaries in Britain of the grant of compensation paid to slave owners by the Emancipation Act of August, 1833 amounting to £20 million. This resulted from work made public in July 2013 of a British team under Professor Nicholas Draper of the University of London and of the Caribbean historian, known for his penetrating analysis of West Indian cricket, Professor Sir Hilary Beckles in his book, Britain’s Black Debt: Reparations for Slavery and Native Genocide. The Emancipation Act had determined that the 800,000 existing chattel slaves were worth £47 million and provided the sum of £20 million for the slave owners; the remainder will be dealt with presently. The sum provided represented some 40% of the annual expenditure at the time and is estimated at £69.9 billion today. The beneficiaries today count the political fortunes of many leading families including the Royal family and the Church of England, and financial institutions like the Bank of England, Baring Bros, Barclays Bank, HSBC, the Bank of Scotland and Lloyds Bank.
Simultaneous with the publications, Caricom heads agreed in July 2013 to establish National Reparation Committees in the member states to pursue the moral, ethical and legal case. Heads also decided to retain Leigh Day, the UK law firm, which pursued successfully in June 2013 the case for compensation for the Kenyans tortured during the Mau Mau rebellion for independence in 1950s and 1960s.Then on July 16, 2014, Professor Beckles, appointed Chairman of the Caricom Commission on Reparations, addressed the House of Commons opening the case for negotiations with the UK (still extant).
The region is faced with two options for a settlement: negotiations or judicial settlement, that is political or judicial. The practice is that bilateral negotiations should first be pursued before requesting the intervention of the International Court of Justice. Either option will present a formidable challenge to the region though not beyond its capacity. The region’s case has to be founded on the law rather than on morality which, in any case, is defined by the powerful. The limitations of eighteenth and nineteenth century international law will prevail to the benefit of the UK. The UK may concentrate on arguments about establishing precedents, with the EU, US and possibly Latin America in mind, and certainly about statutes of limitations, and the protective caveats enunciated on international treaties: no mean position to adopt. For example, the UK does not recognise the International Criminal Court’s jurisdiction in disputes before 1974. Other European governments have also declared caveats to the court’s jurisdiction.
There is always the option of an encouraging resolution in the UN General Assembly but, no matter how weighty and accomplished is that decision, it will be considered non-binding by the UK and other European states. Further, many Latin American states, with the exception of Cuba, have paid compensation to their slave owners and so far only Cuba seems to have announced public support for the Caribbean in the UN General Assembly.
The central issue, whether in negotiations or in the judicial process, is: Was slavery a crime against humanity? It certainly was not the exploitation of excess labour by owners of the means of production as two Caribbean scholars aver; a fine Marxist evocation that misses the reality. The UK has submitted that slavery and other colonial crimes were ‘legal’ at the time and took place ‘a long time ago,’ and are beyond adjudication. The final text at Durban was a masterpiece in construction and a triumph for UK diplomacy in acknowledging that slavery and the slave trade were appalling tragedies in the history of humanity and “are a crime against humanity, and should always have been so…” This was a political decision; a judicial finding may lead elsewhere.
For there is an older and conclusive judgment about slavery and criminality that was not inspired by the descendants of the enslaved. The Charter of the Nuremberg War Crimes Tribunal not only defined crimes against humanity to include enslavement and constituting a crime against humanity, but it also stated that statutory limitations or prescription could not be applied. The tribunal, with Nazi Germany in the dock, was not initiating laws at the time but, as Lord Anthony Gifford, QC and a Jamaican attorney noted, had declared and confirmed concepts of international criminality which had been accepted over centuries. This will be a major point of disputation in any counter argument which will lean on principles of retroactivity and the ‘long time ago’ thesis. This principle about the criminality of slavery has since been reaffirmed by a resolution adopted in the UN General Assembly on the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, November 1968, later signed by only a few states including St Vincent and the Grenadines, and in Article 29 of the Rome Statute of the International Criminal Court, July 1998, ratified by most European states, though neither signed nor ratified by the US, the People’s Republic of China and India.
There is much historical, legal meaning and precedence in the US agreement to pay reparations to interned Japanese and the UK’s recent acceptance of culpability to victims of the Mau Mau rebellion. However, the circumstance of West Germany’s agreement to pay Israel, which did not exist at the time of the atrocities, for slave labour, persecution of the Jews and theft of property, and the case related to Japan came within the framework of the vanquished state settling with the protégé of the victor. Also interesting is the UK location of slavery ‘a long time ago.’ It is ironic that our briefer historical span is apt to consider the past as a’ long time ago’; whereas the longer historicity of the UK tends to evaluate centuries in the twinkling of an eye.
It was good of Professor Beckles to address the Commons in this opening phase of direct bilateral contact. The UK, with its esteemed tradition of heredity and succession, cannot fail to appreciate the successive link between the current Parliament and that of 1833 which determined the emancipation and financial compensation. The line of unbroken succession, and perhaps responsibility, has been held since the brief Cromwellian interlude of the mid-seventeenth century. For those who advance the argument that the present day heirs cannot answer or be responsible for the crimes or beneficences of their ancestors, Caricom attorneys have a case to shape within the context of the theory of the succession of states.
A rather promising revelation in Professor Beckles’s address, that had been concealed from the public, is that the Emancipation Act also stipulated that the remaining £27 million of the £47 million awarded, that is, more than half the cost, would be paid by the emancipated persons by free labour to their former masters during the period of four years under the so-called apprenticeship system. Therefore, at 1833, the Africans were de jure freedmen and women, whether they were also freed de facto is another area for argument. There is certainly some twilight period here and an opportunity for Caricom counsel to investigate the applicability of rules similar to those of a later International Labour Organisation about the payment of wages at regular intervals. Thus, separate from the general case for reparations, there is another case, and a strong one, for the return in today’s equivalent of the £27 million paid by the labour of free Africans under the deception of apprenticeship.
It is reassuring that Caricom is seized of the high stakes in pursuing these claims. Apart from reliance on established principles of international law and historical evidence that is unimpeachable, and since negotiations may offer the better option to advance the case, a great deal of political and diplomatic work will also be required. And it should not be overlooked that, in realpolitik, power subsumes the law, if it does not make it. The strong leadership in Barbados, Jamaica and St Vincent and the Grenadines, at the political and scholarly levels is encouraging. The preparation of the case calls for advocates who are not beholden to political preferment and who bring to the fore established scholarship and respect. Political support, that is not opportunistic, is absolute at the critical times.
The Guyana Reparations team, it is anticipated, will contribute independently and imaginatively to the regional case. It cannot be an echo of the efforts of others. The beneficiaries of slavery in the former British Guiana are many and enjoyed substantial status and wealth: the Gladstones who produced the nineteenth century Prime Minister William Gladstone; the Quintin Hoggs who produced two Lord Chancellors of the Exchequer; John McConnell; George and Josias Booker, the famous Booker Bros, and Colin Campbell of Hogg, Curtis and Campbell Co.
It is the Campbell family who make the compelling case for reparations. Professor Clem Seecharan has produced a magnificent portrait of Lord Campbell of Eskan. We know that Lord Campbell’s abhorrence of slavery, along with his socialist leanings, imbued his strong sense of mission during his reformist years in the sugar industry from 1938 to 1966. In retirement in the 1980s he mobilized immense support for Guyana’s territorial integrity at a time of another threat. This was his reparatory response to his inheritance. His younger brother, Colin, whom he recruited, also provided decisive technological and statistical support to Guyana and the region in the negotiations in Brussels during the 1980s. Thus, the discerning and grateful administration of L F S Burnham granted two national awards in 1985 to two non-Guyanese citizens, to Colin Campbell who never resided in Guyana, and to the other who resided in Guyana, appreciative of their significant contribution to the sugar industry. The Guyana team may find it useful to consider additional research to the work of Professor Seecharan and Professor Draper in the parliamentary and personal papers of the families, in particular the Campbells, Hoggs, and McConnells who, up to 1984, held some interesting nineteenth century portraits of colonial life at their home in Liverpool.
Quite instructive is the fact that it is Caribbean people, including Guyana, who are telling or warning us about: engaging in a pipe dream; seeking hand-outs or overplaying the victim; that Africans participated in the slave trade; that exploitation of surplus labour by those who owned the means of production necessitated the use of force and that producers of wealth in those societies, like slaves of antiquity, serfs or peasants can equally justify claims for reparations; the high costs of a referral to the ICJ; and that reparations are a distraction from other important issues to resolve. Well, thanks very much; though where the criticisms have merit, and there is merit in some, they should be engaged rather than confronted.
One comment on the matter of the serfs/peasants. First, the condition of the serfs/peasants developed in the pre-industrial age. However bestial and exploitative their condition was, and particularly in Czarist Russia, there were fundamental differences with the enslaved Africans. Serfdom and peasantry evolved in the feudal society that took form in the wake of the collapse of the Roman Empire in the feudal arrangements, contractual, under which the serfs held land under varying terms and gave labour, some paid, to the lord of the manor who provided security for the community at a time of disorder and danger. They were not generally transported from place to place, or manor to manor, and their sedentary advantage stimulated many revolts long before Wat Tyler’s (1381) and many reparatory settlements, though mostly inadequate. In the case of Africans some 5.5 million, at least thirteen million if the American colonies are included, men and women were taken from Africa into chattel slavery for the benefit of European capital at a survival rate of only 15%. It is the only event of its kind in recorded history.
There are other contemporary and important issues, apart from reparations, for resolution in the region. Here in Guyana there is the increasing public disquiet about the inability to effect constitutional reform to reverse the crippling imbalance in governance. This has spawned the state-supported Asian stranglehold, including Russian, on the natural resources that is appropriating the national patrimony for the larger benefit of a favoured and wealthy coterie. This discriminatory system aggravates the diminution of the stake of significant sections of the people in the national patrimony. Co-existing is the travesty that is local government, procurement and tender; the deception that the agreement with Linden has become; the disturbing dimensions of tokenism; and for the citizens of African descent the disappointment that for the first time since emancipation a generation has failed to exceed the preceding one in literacy. Left unattended and open to the prevailing chicanery, questions about the destiny, of any group, in the national motto follow. These are not ‘any other business,’ but reflect the search for justice and equity that are part and parcel of the issue of reparations.
There will be risks in developing this case for reparations in the prevailing charged international environment. I have referred elsewhere, in ‘Africa and its History’, to the dangers inherent in any advocacy that locates Africa in a position of primacy, as initiated by G G M James, Ivan Van Sertima, and Amadou Mahter M’Bow of Senegal. Reparations confront modern capitalism with some of its inglorious past and inhumanities, really with a sui generis, and will call forth all of its resources. The case should not become a Black/White issue, though its roots lie in an age when the Church sanctioned such ‘evangelization.’ The advocates have already emphasized the objective of reconciliation. There is no claim to historical ownership of, or any pre-eminence in, a diverse region. Other ethnic groups may also have specific historic injustices to redress and there should the availability to share ideas.
This is why the case for reparations, represented robustly and with dignity, based on the law and without emotion, ought to be alert to and respectful of other sensitivities. Whatever the outcome of the representation, the manner, efficiency and strong sense of propriety of the submissions should be what others recall. This undertaking is for the thousands who came before: for Harriet Tubman, whose ‘underground railroad’ broke the frontiers and cast a long path that others have trod and illuminated; for Sojourner Truth, Kofi, Akara and Atta; the Maroon Susannah; Jack Gladstone, Quamina, Rev John Smith and Damon; Tacky of Jamaica, Nanny of Barbados, Fatima of Haiti and Ambah of Demerara; Marcus Garvey, Prime Minister Eric Williams, C L R James, Dudley Thompson, Dr Walter Rodney, and the evergreen Eusi Kwayana.
Always mindful of Nelson Mandela’s counsel: ‘It always seems impossible until it’s done’.
