Re­pair or Repa­ra­tions?

The Star (St. Lucia) - - LOCAL - By Michael Walker

Mus­ings are thoughts, the thought­ful kind. For the pur­pose of these ar­ti­cles, a-mus­ings are thoughts that might amuse, en­ter­tain and even en­lighten.

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.

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