Reparations are in the news, not just in relation to slavery claims but, most recently, in relation to the effects of climate change. Depending on who is making the argument for them, the term carries such a range of expectations that it needs to be pinned down with a little more precision. Concepts such as “reparations”, “restorative justice”, “compensation” and “damages” are used almost interchangeably, but each remedy serves different purposes.
Most advanced legal systems divide into civil and criminal jurisdictions. The former regulates breaches of some private right for which the remedy is usually monetary compensation. Criminal law is a punitive jurisdiction concerned with the maintenance of law and order and attracts penalties in the form of imprisonment or fines. Key to all criminal offences is that the burden of proving them is higher than for civil claims and they do not have retrospective effect.[1]
Where do reparations fit into that analysis? Are they in the nature of a civil remedy within the broad scope of compensatory awards, or are they intended to be punitive in nature, and perhaps more to the point, does it matter? English law has developed its own rules to determine the monetary value of most types of civil claim and the very idea of requiring somebody to “make good” a wrong by doing something other than pay money is considered too vague to be useful. Reparation orders were introduced into the penal system at the end of the 20th century as a sentencing option for young offenders, but the idea was short-lived and although they remain available under the Modern Slavery Act 2015, very few orders have been made.[2]
Being a vague concept has, however, been an advantage in the development of international law[3], where the principle of reparations was explained: “Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination…”[4]. In this context, “restitution” aims to re-establish the situation that existed before the wrongful act; “compensation” is monetary, covering all financially assessable damage, and “satisfaction” may involve acknowledgement of the breach, an expression of regret, or apology. As a mere statement of principle, it was never intended to have retrospective effect.[5]
Former Jamaican judge Patrick Robinson, until recently a judge in the International Court of Justice (ICJ) has been the driving force behind the campaign for reparations and he defines Transatlantic Chattel Slavery (TCS) as the process of chattelisation of Africans through various phases, including “…capture and sale of Africans in Africa; the forced trek to the slave dungeons on the coast and to the ships in the harbours; their internment in slave dungeons and ships; the notorious Middle Passage, as well as the traffic between Brazil and Africa; their sale in the Americas and the Caribbean; and their forced unpaid labour on the plantations”.[6]
Judge Patrick Lipton Robinson
This is the “wrongful conduct” for which claims are made, but only one aspect of reparations matters. Restitution has been tried but it had limited success and since it now would involve sending millions of people back to the continent from which they were disconnected generations before, it is no longer a realistic option.[7] Satisfaction in the forms of outlawing the practice, contrition, expressions of regret and apology have been tendered many times over the years and failed to resolve the sense of injustice felt by slave descendants. This is why campaigners are focused on financial compensation, but their demands go well beyond payment for the damage caused to those slaves forced to endure TCS.
So how does the money claim stack up? On 8 June 2023 the Brattle Group published a report that concluded that something between $100 and $130 trillion was due from 10 enslaving nations to 27 countries in the Americas and the Caribbean.[8] Those figures are so large that it’s almost impossible to envisage how payment would work in practice, but some idea may be had by referring to the claims made by Jamaica against Britain. If the $7.4 trillion (£5.5 trillion) demand was paid, it would enrich every single Jamaican man, woman and child by £2 million, at a cost to the British public of about £200,000 per household.[9] If that seems a high price to pay for having led the charge to abolish slavery throughout the world, spare a thought for the citizens of Portugal who face paying $1.5 million each just to make good the damage caused by their distant ancestors’ involvement with TCS to Brazil.
The structure of the report draws a line at the point of abolition and breaks down the heads of claim for the period of enslavement into five categories: forgone earnings of $191 billion; loss of liberty assessed at $38 billion; personal injury in the sum of $21 billion; gender-based violence assessed at $11.8 trillion, with mental pain and anguish coming in at $24 trillion. Interest is then applied at alternative interest rates of 2.3% and 2.5% on this underlying “debt”.[10] The heads of claim, for events after abolition, include $23 trillion for wealth disparity and $12 billion for the compensation paid at emancipation to enslavers, neither of which sums carry interest.
Herein lies the problem with a statistical analysis that pays no attention to history or common sense. If we assume that but for the condition of slavery, slaves would have been entitled to seek redress for the grievous wrongs done to them during the period up to 1833, they would have been limited to remedies available under the law only applying at the time. So, for example, damages for mental pain and anguish would not have been available. Lawyers then and now would be completely baffled by the idea that gender-based violence was a distinct category of personal injury. Loss of earnings could be claimed within an action for personal injury but claims against employers for unpaid or underpaid wages were problematic since many types of employment legitimately paid no wages at all and a contract to work for bare board and lodging was perfectly lawful.[11] Despite many slaves being set free by courts before and after abolition, the fact that no argument was made for compensation for loss of liberty shows that it was not an available remedy.[12]
If one ignores the bizarre notion that people who have not themselves suffered from TCS must be compensated by people who never caused it, there is a vague logic in an argument that tries to find a way to pay the heirs of a person who once might have had a genuine legal claim – even after a 200-year gap. Even so, at the risk of offending modern sensibilities, a claim for compensation based on what slaves might have been awarded prior to 1833 still cannot demand legal remedies that were not available at the time. But what of the claim for compensation for the period after abolition?
$12 billion of this relates to the compensation paid to 19th century slave owners, but on what possible basis could it ever be said to be due to current claimants? All possible entitlements due to their slave forebears have already been wrapped up in the claims made for the pre- abolition period. It is absurd to expect British taxpayers, who had to foot the bill to slave owners in 1833, to pay the same again now without explaining why they are under any obligation to do so.[13]
As for the $23 trillion wealth disparity claim, at first blush it would appear to be based on the hypothesis that the consequences of slavery continued long after the trade had been brought to an end. If that argument applied anywhere, it applied in Africa. Few would doubt that the removal of millions of able-bodied men, women and children from their villages in West, Central and East Africa must have set back natural development in their countries by centuries, but the campaign for reparations is not being made on their behalf because, of course, they did not suffer the horrors of the transatlantic journey.
Campaigners say that the abolition of slavery did not end the discriminatory treatment of black persons and refer to many shameful examples of racial discrimination right up to death of George Floyd in 2020 which sparked a wave of protests across America and Europe. But curiously, they do not argue that present-day racial discrimination was a consequence of slavery itself. This is the point: for all the rhetoric, the claim for reparations is not directed towards fixing the consequences of slavery throughout the world, nor is it intended to compensate the heirs of genuine victims of TCS. The “evil” they want addressed lies in the centuries of wealth, health and educational disparity between black and white communities due to racial discrimination, of which TCS was just one particularly hideous manifestation.[14]
Once again, it is Patrick Robinson who puts the argument so succinctly: “The discriminatory treatment of Black people post-emancipation is not the effect or consequence of transatlantic chattel slavery; rather, it is the continuation of the act of discrimination itself, because discrimination is at the root of transatlantic chattel slavery.”[15]
Nobody can doubt that there is tremendous wealth disparity throughout the world, not just between nation states but within them. But it is not the consequence of TCS. Nor are the 27 nations demanding a readjustment of wealth uniquely disadvantaged by the disparity. There are many other poor nations across the globe that were untouched and unaffected by Atlantic slavery. There may be a debate to be had about how, or even whether, a worldwide wealth gap can ever be bridged but the Caribbean nations leading the campaign for reparations are merely leveraging Western embarrassment and shame about slavery to secure the best available outcome for their own communities, whatever the cost to everybody else.
Marcus Rutherford was born in East Africa and is a former International Disputes lawyer working in the City of London (now retired). He is currently writing an account of the Emin Pasha Relief Expedition (1887- 1890) sourced from the original diaries, notebooks and letters of the people involved.
[1] Nobody should be charged with an offence which was not a crime at the time when it was committed.
[2] Introduced by the Crime and Disorder Act 1998 and abolished by s 162 Police, Crime, Sentencing and Courts Act 2022. The idea was well meant in the context of young offenders who might be turned away from a life of crime by an early confrontation with the consequences of their actions.
[3] International law is the product of compromise between different legal regimes, and this is reflected in the language used. In his introduction to the Brattle Report, Patrick Robinson refers to a case from 1927 [Factory at Chorzow Judgment no 8, 1927, PCIJ Series A] for introducing the legal basis for reparations, but in the context in which the term was used, “reparations” are no more than a straightforward damages award for a simple breach of contract.
[4] The Articles setting Responsibility of States for Internationally Wrongful Acts was adopted by the International Law Commission in 2001 [UN Doc. A/RES/56/83 (2001), 53 UN GAOR Supp. (No. 10) at 43, Supp. (No. 10) A/56/10 (IV.E.1).] They do not have the force of a Treaty nor are they retrospective, but they have been adopted as a standard in international law.
[5] “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” [Article 28 of the Vienna Convention on the Law of Treaties 1969].
[6] Introduction to the Brattle Report by Patrick Robinson. The Jamaican lawyer and former Judge at the International Court of Justice commissioned and introduced the Report presented at a Symposium sponsored by the American Society of International Law (ASIL) and the University of West Indies (UWI) held on 9-10 February 2023.
[7] Evidence for 19th century repatriation lies in West African place names like Liberia and Free Town in Sierra Leone where former slaves were received, but the idea had limited uptake. George Washington Williams was a black journalist who journeyed around Africa to see for himself whether it might be feasible for Black Americans to return to the continent and help bring the natives up to the level of Western development. His visit to the Congo left him profoundly disillusioned by European claims that they were engaged in “civilising” the continent, but he was unable to muster any enthusiasm from African Americans to step in and help the process.
[8] https://www.brattle.com/wp-content/uploads/2023/07/Report-on-Reparations-for-Transatlantic-Chattel-Slavery-in-the-Americas-and-the-Caribbean.pdf
[9] At 2.8 million, the total population of Jamaica is very roughly a tenth of the number of households in the UK.
[10] My analysis is based on the lower set of figures.
[11] R -v- The Inhabitants of Thames Ditton (1785) 99 ER 891. During submissions, Lord Mansfield disclosed that where slaves had come before him seeking wages for their service, he had always non-suited them – (ie denied the right to “fair” remuneration).
[12] Lack of historical data has not deterred the Brattle analysts. Statistics drawn from compensation paid to victims of the 9/11 terrorist attacks in the USA are “the anchoring point” for the personal injury analysis, and the loss of liberty calculation is based on figures drawn from US State records going back no earlier than 1981. Neither have the slightest relevance to contemporary English or European rules governing the payment of damages, much less to any historically informed approach.
[13] The last payments were made in 2015.
[14] The wealth gap analysis assumes that, but for the impact of TCS, Jamaicans should by now be enjoying the same standard of living as British nationals. Who serious believes that paying £1.8 million to each of them fairly bridges that wealth gap? The median wealth for individual UK citizens is around £150,000.
