Ryan Michael Spitzer

excerpted Wrom: HDMNNSKVFVWRKJVZCMHVIBGDADRZFSQHY Holocaust: Should Europe Pay Reparations to Africa for Colonialism and Slavery? , 35 Vanderbilt Journal of Transnational Law 1313-1346, 1340-1347 (October, 2002) (263 Footnotes)

A. Prohibition of Slavery as Jus Cogens International Law

Any discussion of the prospect of African reparations must necessarily begin with an assessment of the legal status of the institutions of slavery and colonization. As discussed earlier, slavery has been rejected by the United States and the international community for over seventy-five years. During that time, the prohibition has been sufficiently incorporated into the customary international law to be fairly characterized as a jus cogens international law of human rights. The rejection of colonialism has also been fully incorporated into customary international law, although its claim to jus cogens status may be affirmed less vigorously within the international community than that of slavery. As a result of the universal condemnation of slavery, colonialism, genocide, and war crimes, states generally possess universal jurisdiction to define and punish violations of those basic rights. However, as a possible lingering effect of the earlier international law of near universal foreign immunity, courts remain reluctant to review the actions of foreign states, particularly when a significant amount of time has lapsed.

B. African Reparations Under the Foreign Sovereign Immunities Act

One alternative is to bring an action in a U.S. court for violation of the international law of human rights against those countries or companies that perpetrated slavery and colonization against a state in Africa. Courts in the United States can only exercise jurisdiction in cases involving international law if they fall within one of the exceptions to the Foreign Sovereign Immunities Act (FSIA). The institution of slavery is arguably within the exception to the FSIA for commercial activity. Although the Hwang court held that operation of brothels by the Japanese government was not a commercial activity, that case is distinguishable from the institution of slavery. In the case of the Imperial Army of Japan, the brothels operated primarily for the purpose of satisfying the sexual needs of the troops in order to further the military objectives of the Empire. In the case of European conquest of the African states, however, the institution of slavery and the conquest and colonization itself was a means of furthering the commercial interests in labor and resources of the European empires. The task of establishing slavery as a commercial activity exception to the FSIA is eased to the extent that African states can demonstrate that European governments have coordinated their efforts with private shipping, mining, and agricultural businesses to that end.

Additionally, African states can make a colorable argument that the European powers and the United States have impliedly or explicitly waived sovereign immunity as it applies to events before 1952 by imposing retroactive application of the FSIA and reparations generally to Axis Powers after World War II. To the extent that those countries have held Germany accountable for reparations to Jewish victims of the Holocaust, African states could argue that the same countries have exposed themselves to accountability for their own misdeeds. This argument will necessarily run afoul of the U.S. Supreme Court's concern for ex post facto prosecution. Surmounting this obstacle will hinge upon the ability of the African states to characterize the jus cogens status of the international human rights law relating to slavery as a transcendent truth that should have been recognized by the slave-trading states during the time of slavery. This argument will necessarily take on a tone similar to the criminal law concept that ignorance of the law is no defense. The African states could argue that the slave-trading states can be held liable for their actions even if they believed they were acting within the norms of international law at the time. This position can be fortified by pointing to the Swiss Banks and German companies that have been held accountable for their collusion with the Nazis, although they were acting within the bounds of international law at the time.

C. African Reparations Under the Alien Tort Claims Act

Another alternative is to file a suit for reparations in the United States under the Alien Tort Claims Act (ATCA). The primary difficulty with this avenue of slavery reparations is the ten-year statute of limitations derived from the Torture Victim Protection Act (TVPA). African states could argue that the statute of limitations was tolled by the delayed development of a cause of action in international law. This argument reflects the condition of customary international law that is formulated and developed according to the evolving conception of human rights within the international community. The African states would argue that a cause of action did not exist and that, therefore, the statute of limitations did not begin to run until the concept of the prohibition of slavery as a facet of the jus cogens body of international law reached a sufficient level of general acceptance. This argument is, of course, susceptible to the contention that a state cannot be liable under a cause of action until that cause of action actually exists.

Alternatively, the African states could argue that the statute of limitations was equitably tolled by the refusal of the slave-trading states to recognize the jus cogens status of the prohibition of slavery. This argument suggests that the continued practice of slavery until the end of the nineteenth century and the survival of colonialism into the twentieth century represent a fraudulent misrepresentation of the true nature of human rights upon the international community by slave-trading states. By employing this argument, the African states place the slave-trading states in a "catch-22" scenario. From one perspective, the slave-trading states' continued insistence that slavery is not a transcendent evil represents a continuation of that fraud on the international community. However, acceptance of the freedom from slavery as a universal right extending back through time opens the slave-trading states to the same responsibility for their actions. Additionally, African states that have remained in a state of tutelage, as described by Judge Ammoun in Security Council Resolution 276, might argue that their subordinate status on the world stage entitles them to equitable tolling of their causes of action.

At the time of publication for this Note, a class action complaint was initiated in federal district court that will present this equitable tolling argument in the context of reparations for African-Americans. The suit was filed against four companies in the United States that allegedly participated in the slave trade. The first count of that action alleges conspiracy by the companies and asserts that they acted individually and in concert with their industry groups to profit from uncompensated labor derived from slavery. The second count demands the production of records from the period of slave trading. The plaintiff class asserts that the defendants knew or should have known of the existence of these records and that the defendants should be required to produce them. The third count asserts that the defendants committed human rights violations by enslaving and persecuting the ancestors of the African American class members. Counts four and five allege conversion and unjust enrichment, respectively, for the failure by the defendant companies to compensate the enslaved ancestors of the plaintiff class for their labor. The complaint asserts that the general lack of reliable shipping records from the period, the unwillingness of companies to release their records, and the reluctance on the part of Congress to address the issue of reparations justify the delay by the plaintiff class in bringing this action. Arguably, the plaintiffs should not be made to suffer because of the lack of diligence in record keeping and reluctance in producing those records by the defendant companies.

D. African Reparations and the Nonjusticiable Question Doctrine

Whether African states pursue slavery reparations under international law by way of the FSIA, or as a tort under the ATCA, they will still have to contend with the nonjusticiable question doctrine. First and foremost, the African states should argue that the slave-trading states are completely unwilling to negotiate or consider any form of compensation or reparations by legislative or executive means. The African states should point to the overwhelming size of the injustice perpetrated over centuries of colonial domination and enslavement as a dual indicator of both the reason why treaty settlement is impossible and why judicial remedy is essential. The African states should argue that the debt is so great that slave-trading states will never give repayment an adequate consideration.

For the same reason, however, African states should argue that it is imperative that some organ of government address the issue. Judicial resolution of the reparation issue is necessary because treaty or legislative action by the other branches of Western governments is unlikely. To strengthen this argument, the African states should actively pursue settlements by treaty or U.N. resolution. On the one hand, the potential for litigation may help the African states achieve their primary objectives of debt forgiveness and a formal apology through international agreement. On the other hand, the failure to reach such an agreement will fortify the assertion that diplomatic resolution is impossible.

E. Adequate Evidence to Document the African Injury

Underlying the issue of the nonjusticiable question doctrine and of litigation generally is the ability of the African states to adequately document the injuries sustained from centuries of slavery and colonization. Not only must the African states locate those companies that profited from the slave trade that are still in existence, but they must also obtain whatever documentation may still exist of the numbers and origins of slaves transported to the New World. Obviously, slave traders and slave owners in the new world would not have kept detailed records of the identities and origins of their property. Even if such records did exist, they most likely would not have withstood the passage of time. However, the African states should argue that equitable doctrines should prevent the slave-trading states from continuing to prosper from their lack of diligent record keeping. At the very least, the African states could pursue their objective of debt forgiveness by claiming that the accumulated national debts of their countries is a rough approximation of the damage sustained at the hands of Imperial Europe.

F. The Impact of Moral Outrage on African Reparations

In assessing the potential for slavery reparations, the impact of international moral outrage on the success of Holocaust reparations should not be overlooked. For that reason, the likelihood of reparations for African states may be expected to be directly proportional to its similarity with the Holocaust situation. On its face, it appears that the Africans have suffered to a similar degree under slavery and colonization as did the Jews under the Nazis. Certainly, the dual horrors of slavery and colonization oppressed and subjugated a comparable number of persons as the Nazi Holocaust. The duration of that suffering was also far greater that the six years of World War II. Therefore, the carnage of slavery and colonization can be fairly characterized as an African Holocaust.

However, there may be a fundamental difference in the lack of intent to harm the African people in the same way the Nazis intended to harm the Jews. There were certainly legitimate political and economic reasons for the countries in the West to engage in colonization. No European country could afford to withdraw unilaterally from the race to colonize, or fail to utilize fully new colonies through slave labor without sacrificing its own security at home. It is much more difficult for courts or countries to accept an assignment of moral culpability when there is no clear evidence of malice. At most, the colonial powers are guilty of recklessly disregarding the interests of the African states when pursuing their own survival.

Likewise, a significant difference exists between the Allied Powers laying blame on a handful of surviving Nazi leaders and laying blame on generations of their own ancestors. This point helps to illustrate precisely why the reparations issue, particularly in a courtroom setting, tends to exaggerate tensions. If the issue was raised entirely in a political setting, the West would have room to maneuver. It could empathize with the descendants of former colonial subjects and propose measures to offset the lingering effects of colonization without necessarily making a formal apology or publicly accepting blame. Similarly, proponents of the reparations movement could obtain the economic relief they seek in the form of debt forgiveness with much less opposition from the West, assuming African states forego a formal apology and acknowledgment of wrongdoing by European nations. By keeping their options open in treaty negotiations, the Western and African states can reduce tensions and concentrate on a realistic evaluation of the merits of the reparation claims and the secondary benefits of, for instance, a stabilized African market for European goods.

However, when the issue is presented in the form of litigation, the stakes are raised. Even though the parties can still negotiate a settlement, any settlement is, at least in the eyes of the observing public, both an admission of responsibility and an acknowledgement of the moral legitimacy of the reparations cause in proportion to the amount of the settlement. In litigation, the parties are engaged in a type of formalized battle that removes political alternatives. The motivation to fight for the cause itself and to win a moral victory in the form of a formal apology is more likely to move to the forefront in litigation. Likewise, the slave-trading states will be encouraged to avoid an apology at all costs in order to prevent any admission of guilt.The net effect is that each side will be more likely to be consumed by the desire to hold the moral high ground, or to obtain a perceived moral victory or vindication at the expense of the real objectives. For the African states, there is a greater risk that tempers will flare, as they did at the World Conference Against Racism. As a result, they will not receive the debt forgiveness they so desperately need. The West, of course, wants to put the entire issue to rest, but not at the price of its dignity and cultural heritage. England, for instance, even in its post-colonial state, is not prepared to sacrifice the legacy of the British Empire because of the nostalgic sentiments and feelings of national identity that underlie the retention of its monarchy. Similarly, the United States has reason to fear that a settlement with African states regarding slavery could open the floodgates to reparation actions by African American descendents of former slaves in the United States.

There may be some very good arguments for why the West should not be held responsible for colonization and slavery. Of course, no Western democracy that considers itself to be morally sophisticated would ever make such arguments. An open defense of slavery would have the same public consequences as a defense of the Nazis. However, it is not entirely clear that slavery or colonization is a transcendent moral evil comparable to the extermination of the Jews, for which all people at all times should be held accountable. Slavery was a thriving institution long before the United States or the Roman Catholic Church existed. It did not become morally reprehensible until we, as a civilization, decided it was morally reprehensible. In the United States, that recognition of the reprehensibility of slavery took four bloody years of Civil War and a constitutional amendment. The remnants of colonization lasted even longer.

IX. Conclusion

If the international community chooses to assign moral culpability to the West for colonization and slavery, then that is its prerogative. However, perhaps that choice should be recognized as just that, a choice. The international community may be better served if it casts off any illusions it has about an overarching, permanent moral framework that applies equally to all wrongdoers at all times. The recognition of the international law of human rights as an evolving moral framework may help European and African states alike to set aside the issue of blame and apology for slavery in order to concentrate on the continuing plight of the African continent and the strained relations between nations.

In discussing the potential for African reparations, lasting peace must not be forgotten as the ultimate goal. Although it is feasible to shape the dynamic international law to support or deny reparations for slavery and colonization, this must not be done in a way that inspires lingering resentment. In the end, it is that lingering resentment that has created this confrontation. The underlying moral sentiments must be recognized and openly discussed to reach a final peace that is acceptable to everyone involved. Otherwise, this problem will arise again in the future.

[a1]. The Author's use of the term "African Holocaust" is not in any way intended to discount the importance of the Jewish Holocaust. In this instance, the Author uses the term to simultaneously recognize the extent of African suffering during the slave trade, and to signal to the reader that a comparison of the two genocidal events will comprise a significant part of this Note.

At the time of publication for this Note, the authors of four previous law review articles used the term "African Holocaust." See Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. Rev. 477 (1998); El-Obaid Ahmed El-Obaid & Kwando Appiagyei-Atua, Human Rights In Africa--A New Perspective On Linking The Past To The Present, 41 McGill L.J. 819 (1996); Tuneen E. Chisolm, Sweep Around Your Own Front Door: Examining the Argument For Legislative African American Reparations, 147 U. Pa. L. Rev. 677 (1999); David Abraham & Kimberly A. McCoy, Dealing With Histories of Oppression: Black And Jewish Reactions To Passivity And Collaboration In William Styron's Confessions of Nat Turner And Hannah Arendt's Eichmann In Jerusalem, 2 Rutgers Race & L. Rev. 87 (2000).

[aa1]. J.D. candidate 2003, Vanderbilt University.