What are we to make of Charles III, who just months before taking up his new role as king, spoke of his “personal sorrow” over the crimes of slavery, marking the Commonwealth’s first official recognition of its dark origins? Or elsewhere, where we witnessed the largest ever global protests following the gruesome killing of George Floyd? Are we in fact on the cusp of meaningful change when it comes to making amends for historical and entrenched systemic injustices?
In India, public figures like Shashi Tharoor have taken on the cause of historicising the impacts of British colonialism, amassing celebrity-like followings along the way. Here in Europe, we’ve seen the newly elected Italian government cunningly instrumentalise the immigration crisis to take (cheap) shots at Paris over the latter’s enduring stranglehold on its ‘former’ African colonies. Even president Macron, despite a characteristic avoidance of apologising for the horrors of French colonialism, announced a “policy of recognition” back in 2021, which should, among other things, see such histories included in France’s school curriculum.
Indeed, both on and offline, there is a groundswell of activism, such as social media campaigns, which include the latest effort to return #stolenart - a movement resonating across the globe. Taken together, these trends certainly indicate a positive shift, and one beyond mere political sloganeering and virtue signalling. Consequently, this is having a gradual but noticeable impact on an otherwise stagnant area of international relations and global justice - reparations and restitution.
Against a global backdrop of geopolitics fraught with nuclear-size risks, political polarisation, the unfolding climate crisis, a sputtering global economy, and widespread concerns over the cost of living, reparations might seem far down the rungs of pressing needs. Yet, nascent social, if not legal, pressure groups are challenging assumptions of incompatibility.
Unquestionably, the sources of today’s culture wars are varied. But often underpinning these is a sense of economic fragility. If we can borrow from game theory, the zero-sum approach where for one to gain another must lose might well be replaced by a positive-sum approach, where we embrace the model of restorative justice toward addressing a host of challenges. Let’s examine a few recent examples from around the world.
Following the death of Queen Elizabeth II, “painful memories” resurfaced alongside demands for the repatriation of the Koh-I-Noor diamond, which forms part of the crown jewels, in a case not too dissimilar from that of the Benin bronzes, where a building momentum from leading cultural institutions is coming out in support of restitution. While not exclusively a point of law, there is a legal basis to these claims. West African societies that were dispossessed of these items stand to benefit not only in terms of restoration of cultural heritage, but from the boost these treasures can provide to tourism, for example. The latter economic line of argumentation also highlights the realm of possibilities under tort. That body of law provides not just for restitutionary damages based on dispossession and unjust enrichment at the expense of the victim, but a cause of action for communally owned artefacts that were seized. Successfully seeking even just a fraction of these remedies, in the spirit of true restorative justice, could potentially see more thriving economies across dispossessed regions, which would be a boon to everyone.
Elsewhere, a glimmer of hope is emerging out of a city in the U.S. state of Illinois. There, a local authority has embarked on a programme of paying out reparations in the form of grants to its Black residents descended from slaves. These payments, capped at $25,000, can be used for anything from home repairs, paying towards a mortgage, or even as a down payment on a house. Separately, a host of state-level reparations task forces, like the State of California’s Task Force to Study and Develop Reparation Proposals for African Americans, have sprung up across the country, charting the way forward with ambitious preliminary recommendations, setting the stage for real change. Surely, smart policies that narrow the racial wealth-gap could damp down social tensions and revive blighted inner-city areas, benefitting everyone.
Finally, would it be too great a stretch to claim even the contested issue of immigration can be resolved in a win-win fashion? Migration rules across developed economies increasingly reflect a targeted approach toward filling gaps with skilled and unskilled labour from the pool of underutilised talent in developing countries. Building on such an approach eventually makes aid redundant as remittances take on a snowball effect.
Addressing the beleaguered, perhaps justified, ‘whataboutism’ defence – as frequently put up by global south actors, who when accused of human rights violations point a finger back at western legacies – will be of paramount importance if we hope to hold to account the various actors in today’s conflicts and limit the scale of future wars. Even our present geopolitical climate can be influenced by principles of fairness and equality before the law. Yet, history suggests that the application of these principles is mostly a choice, often at the discretion of powerful states, and is therefore not widely used. Still, even otherwise political declarations, like the Atlantic Charter – a brilliant piece of American statecraft which, among other things, helped accelerate the process of decolonisation – can work towards such an end. Today, to secure accountability for ongoing and future crimes against humanity, we must bring reparations for past wrongs to the forefront, borrowing from post-war Germany’s reckoning with its past.
Undoubtedly, the goal of righting the historical wrongs will involve setting temporal limits. One Oxford scholar jokingly inferred it was, in fact, the early humans out of Africa that ventured out in conquest, destroying virgin ecosystems and carving out new lands for themselves. Of course, such a starting point would not only be pedantic but of no value to our purposes. A good approach to this conundrum, perhaps, could be to pick the emergence of the modern state and the beginning of Modernity as a starting point. It was, after all, the West that established this state-centric global system in which we live today.
Moreover, established international human rights law, as in Article 29 of the Rome Statute of the International Criminal Court and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, makes clear no statute of limitations exists when it comes to the most serious crimes. These norms should be equally enforced.
Further, the ideologies of insatiable extraction, land appropriation and genocide that drove European colonialism, and later, globalisation, morphed into a key driver of climate change, threatening humanity at large. Sadly, populations that suffered unjust extraction historically, are nearly identical to the ones bearing the brunt of climate change. This should give greater impetus to the emerging consensus on climate justice in leading economies, where an overwhelming majority support paying more due to greater historical responsibility. Connecting these two historical moments could not only come in the form of windfall taxes on big oil & gas companies but could be paired with reparations for slavery and colonialism, thus better empowering concerned communities to build their resilience.
In conclusion, it may be instructive to recall the common thread in the highlighted examples - a mix of individual, collective, subtle, and concerted efforts embody this new wind of change. This is the stuff that moves the law. It has certainly proved effective in repatriating stolen artefacts, and sparked conversations across society. Crucially, the examples also underscore at least two further important actionable points. The first is that the initiative must come from the more powerful states, including where ordinary citizens in those powerful states hold their leaders to account on these issues, and second, that reparations need not be framed as punitive or burdensome.
By Bryan MutisoFirst Year LLB Senior Status Student