REPA­RA­TIONS RE­VIS­ITED

The Star (St. Lucia) - - FRONT PAGE - By Michael Walker

Mark my words, there is cer­tainly a history con­cern­ing the repa­ra­tions pay­ments by gov­ern­ments to in­jured par­ties. In1990 the U.S.A. paid $1.2 bil­lion to Ja­panese Amer­i­cans that had suf­fered in­tern­ment dur­ing World War Two. That same year, Aus­tria paid out $25 mil­lion to Holo­caust Sur­vivors fol­low­ing Jewish claims on the Aus­trian State. The point is that those re­ceiv­ing com­pen­sa­tion were the ones who suf­fered, not dis­tant de­scen­dants.

In 1988, Canada gave its In­di­ans and Eski­mos a whop­ping 250,000 sq. miles of land in com­pen­sa­tion for their suf­fer­ing. Of course, this wouldn’t work in the West Indies be­cause the de­scen­dants of African slaves al­ready own ev­ery is­land in the Caribbean – well, just about any­way. In fact, maybe the de­scen­dants of the orig­i­nal in­hab­i­tants, the Caribs, the Arawaks and the Ci­boneys or Tainos, should maybe seek com­pen­sa­tion for the loss of their lands from the present own­ers who might be viewed as mod­ern-day re­ceivers of stolen goods.

1988 was an ex­pen­sive year for Canada; they also paid out $230 mil­lion to Ja­panese Cana­di­ans for the treat­ment they had re­ceived for a war some forty years pre­vi­ously but again, those who re­ceived the money were the ac­tual sur­vivors or their im­me­di­ate fam­i­lies.

In 1971 un­der the Alaska Na­tives Land Set­tle­ment, the folks up there were awarded a whop­ping $1 bil­lion and 44 mil­lion acres of land for per­ceived in­jus­tices. The eight­ies was a decade of ret­ri­bu­tion for Na­tive Amer­i­cans whose lands had been taken from them: in1986 the U.S.A. dished out $32 mil­lion to the Ot­tawas of Michigan for a treaty dat­ing back to 1836; a year ear­lier the Chippe­was of Wis­con­sin, the Semi­noles of Florida, and the Sioux of South Dakota shared pay­ments to­tal­ing $148.3 mil­lion. Five years ear­lier, in 1981, the Kla­maths of Ore­gon had set the ball rolling by win­ning $81 mil­lion in com­pen­sa­tion. The thing is that all these guys lived on tribal reser­va­tions with clear lines of lin­eage.

None of the above­men­tioned ex­am­ples par­al­lel the claims for repa­ra­tions by those who pro­fess to be the de­scen­dants of slaves. I say ‘pro­fess’ be­cause it seems that it would not only be the de­scen­dants of slaves, and politi­cians, that would ben­e­fit from such repa­ra­tions, but also thou­sands of peo­ple whose fore­fa­thers never suf­fered the evils of the slave trade would pre­sum­ably be in­cluded. Not all West In­di­ans can, or wish to, trace their roots to Africa. In fact, I have no­ticed that there’s some­times quite a di­vide, al­most an an­tipa­thy, be­tween West In­di­ans of In­dian de­scent, those of high colour, and “black Africans.”

In 1952, al­most im­me­di­ately af­ter the War, Ger­many paid out $822 mil­lion to Holo­caust sur­vivors. Claims against Ger­many pro­vided an im­por­tant im­pe­tus for the evo­lu­tion of tra­di­tional state-cen­tered in­ter­na­tional law to a sys­tem that in­cluded non-state ac­tors as both ac­tive and pas­sive sub­jects of the law. This point is rel­e­vant be­cause the slave-trade crimes were com­mit­ted by in­di­vid­u­als against in­di­vid­u­als, and not by war­ring states.

Sev­eral is­sues may be con­sid­ered. Do state claims for repa­ra­tions en­com­pass com­pen­sa­tion for par­tic­u­lar harms suf­fered by a sub­ject of the claimant state? May that sub­ject make a claim di­rectly against the other state? Do claims, ei­ther by the state or its sub­jects, en­com­pass com­pen­sa­tion for harms caused by non-state ac­tors of the of­fend­ing state? The ques­tion of whether pri­vate ac­tors may be sued di­rectly, ei­ther by the claimant state or, more typ­i­cally, by the vic­tim-sub­ject of that state does not arise, as no sur­viv­ing claimants or ac­tors ex­ist. Was the na­ture of the atroc­i­ties com­mit­ted qual­i­ta­tively dif­fer­ent from con­tem­po­rary be­hav­ior at the time of the slave trade? Slav­ery might even be con­sid­ered the norm in cer­tain African na­tions even to­day. Did the claimant state ex­ist at the time of the atroc­i­ties? Such are the niceties upon which lawyers will thrive.

His­tor­i­cally, the pay­ment of repa­ra­tions was made by a van­quished state to a vic­to­ri­ous state and had no par­tic­u­lar moral con­no­ta­tion un­til World War I, which dif­fered from ear­lier con­flicts in scale and the to­tal in­volve­ment of civil­ian pop­u­la­tions, jus­ti­fied higher mon­e­tary repa­ra­tions by ref­er­ence to moral and po­lit­i­cal re­spon­si­bil­ity. Ar­ti­cle 232 of the Treaty of Ver­sailles ex­pressed: “Ger­many un­der­takes that she will make com­pen­sa­tion for all dam­age done to the civil­ian pop­u­la­tion of the Al­lied and As­so­ci­ated Pow­ers.” The French gov­ern­ment suc­cess­fully ar­gued for “war guilt” con­ces­sions that pro­vided the im­pe­tus for much of Ger­many’s do­mes­tic pol­i­tics be­tween the two World Wars that brought about Hitler’s rise to power and all that fol­lowed.

Two cen­turies have passed since the abo­li­tion of slav­ery. Does the world re­ally want to re­visit that time, open old wounds, risk ex­ist­ing agree­ments on aid and as­sis­tance, pit fam­i­lies and al­lies against each other? I de­test the very thought of slav­ery, but I do not ac­cept any col­lec­tive guilt for cen­turies-old crimes. Let’s move on – there are plenty of evils to face in to­day’s world with­out rak­ing up old in­jus­tices.

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