A new book, Slavery Reparations Time Is Now: Exposing Lies, Claiming Justice for Global Survival – An International Legal Assessment, provides a fresh voice in the debate over reparations. It is authored by New African senior contributor, Dr Nora Wittmann. Here we provide an edited extract from this important work.
The prevailing scholarly legal opinion categorically shuts the door on claims for justice and slavery reparations by referring to the principle of non-retroactivity and to the allegation, presented as if it were a fact, that transatlantic slavery would have been “legal” at the time.
This is indeed the basic argument that European and US ex-enslaver states always come up with first. In fact, this is really the principal argument that they persistently repeat each time they are confronted with the topic, indicating that this is where the crux of the legal matter lies.
This principle of non-retroactivity, a tenet of international law, has the effect that a state can only be found legally responsible if that state committed an act that was “internationally wrongful” at the time it occurred.
It is the combination of the allegation of international “legality” of slavery at that time with this principle of non-retroactivity that is invoked to categorically block transatlantic slavery reparation claims.
This is not a scientifically pertinent and tenable position, however. When one contends that “slavery” was “legal”, it needs to be asked by whose standards it is supposed to have been legal. The allegation of legality is based solely on the colonial laws that European enslaver states passed after they had been the driving force in transatlantic slavery for more than a century already. However, transatlantic slavery was not legal by the laws of affected Africans, nor was it compliant with international law standards of the time. It was not even “legal” by the laws of European enslaver states, most of which had come to pass, in developments up to the 16th century, legislation abolishing, or at least severely restricting, slavery and outlawing chattel slavery. In their majority, these laws were never abrogated and thus continued to be in force throughout the transatlantic slavery period.
Before the time of transatlantic slavery, many regions of Africa were active participators in international relations, and many African societies had highly developed political and social institutions. Contrary to what we are often made to believe, African political entities of that time were as much the creators, actors and subjects of international law as their European counterparts.
The available historical evidence shows that these rules of international relations were known and respected by African states in their encounters with European officials and traders before and at the beginning of transatlantic slavery.
Tragically, this conformity with international law was not reciprocated by their European counterparts who disrespected agreements, ignored the sovereignty of African states and violently deposed rulers who were unwilling to collaborate with them in enslavement.
In the 17th and 18th centuries, when European nations started to legislate on transatlantic slavery, international law was no tabula rasa [blank slate]. And Europeans, having always been only a global minority (and before transatlantic slavery not a particularly powerful one), could neither unilaterally impose what international law was, nor change it.
And contrary to hegemonic opinion, historical sources referring to African, European and international law show that transatlantic slavery was indeed illegal at its time. Now, the concept of legal responsibility and its ensuing obligation to make reparations for wrongful conduct too was, in one form or another, historically present in all legal systems concerned – African, European and international. Once the illegality of transatlantic slavery can be established and responsibility legally attributed, in appliance of the law of the time and looking at the facts, reparation is due for this most massive crime.
Quite obviously, the assessment on its own that African states were subjects of international law does not yet tell us anything about the legal status of transatlantic slavery at that time.
In order to get there, a thorough historical investigation into the laws and legal concepts of both European and African states, and their confrontation with the ferocious reality of transatlantic slavery, is necessary.
Such a review, also considering historical examples from world regions other than Africa and Europe concerning the legal status of servile labour and slavery, will allow us to come to assess general principles of law, which are, next to treaty and customary law, one recognised source of international law and are generally defined as legal principles common to a large number of systems of national or municipal law.
Reparation detractors regularly contend that Africans would have “enslaved” one another from time immemorial; and that they would have actively and voluntarily participated in transatlantic enslavement. Both contentions are of high legal significance because they serve to basically bolster the allegation that transatlantic slavery would have been “legal”.
Documents and notes by contemporary European officials testify that transatlantic slavery was totally different from African servile labour through the former’s complete disregard of the humanity of its victims.
On the ships, sick people and toddlers, weak and prone to sickness, were often thrown overboard. The average life expectancy of a person enslaved in the transatlantic system, once he or she passed childhood and was put to work on the plantation, was five to seven years. In contrast, in African societies “slaves” were gradually integrated into the lineage.
Common punishments in transatlantic slavery included putting people into facial or whole-body gibbets, with metal spikes on the inside; the utilisation of thumbscrews; extreme lashing and smearing of wounds with salt and hot pepper; limb amputation; alive muring [being encased within a pit or walls]; covering the enslaved person entirely with honey and then putting him or her on a tree for days so that bees, ants and mosquitoes would cover and bite every inch of the body.
No laws protected the African from any cruelty the European masters could conceive. Men, women, and children were at their complete mercy. “The enslaved person could be roasted over a slow-burning fire, left to die after having both legs and arms broken, oiled and greased and then set afire while hanging from a tree’s limb, or be killed slowly as the slave owner cut the enslaved person’s phallus or breasts.
“A person could be placed on the ground, stomach first, stretched so that each hand was tied to a pole and each foot was tied to a pole. Then the slave master would beat the person’s naked body until the flesh was torn off the buttocks and the blood ran down to the ground.”
The Middle Passage from Africa to the plantation colonies took approximately three months during which the people remained enchained in darkness in minimum space, the living, sick and dead side by side, laying in their excrements and vomit, and without any possibility of movement.
No reparation detractor has ever been able to come up with documentation of any such institutionalised barbarities happening in pre-Maafa African “slavery” because they simply did not exist there.
The eminent historian Basil Davidson pointed out that at the beginning of transatlantic slavery semantic manipulation was employed by European traders to justify their dealings. It is important to see clearly and acknowledge that this very same manipulative argument is still used today to fend off reparations claims.
In its indigenous form, slavery had functioned on the edge of society. Generally, slaves were people who had failed to pay debts, been convicted of crimes, seized in war, or transferred as compensation for damages. As in Europe, the causes that could justify war were limited to the violation of interstate treaties which had been sealed with the respective national oaths; the harming of envoys and the failure of the violating state to make reparation for the violation; the support of an enemy during war by a hitherto friendly or tributary state; and the defence of a state against an aggressor. Some acknowledged rules for the conduct of war also existed. For example, the lives of innocents were to be spared as far as possible, and sacred groves were considered inviolable.
Domestic slavery also played the role prisons serve in industrialised societies. There is ample evidence that domestic slavery was a marginal economic and social force before transatlantic slavery took off.
“In fact, domestic slavery became a significant phenomenon in Africa only by the nineteenth century when it was influenced by global forces and demand.” One effect of transatlantic slavery was the corruption of indigenous legal institutions. Instead of resorting to traditional legal means of redress, the corrupt powerful turned to the slave trade. Many African rulers who traded slaves with Europeans acted without the constitutionally proscribed advice or consent of other gremia (advisory/decision-taking bodies).
Such agreements of “slave trading” were thus contrary to customary law and illegal. Comprehensive reparations must also provide means for thorough investigation into these developments that are at the root of numerous grave problems and conflicts in African society today.
The vast majority of those deported to the Americas were neither criminals nor war captives, but people kidnapped in raids. When talking about African collaboration, it is important to remain conscious of the fact that throughout the long centuries of transatlantic slavery, many African people and leaders fought with all their might to stop this massive crime. What is essential to retain is that, just because some individual African rulers were corrupt and participated criminally in transatlantic slavery, this does not mean that chattel slavery had been lawful in their respective countries.
African resistance and attacks on transatlantic slavers and trading posts bear witness that transatlantic slavery was not considered normal and “legal” in the eyes of the African majority, but as decidedly illicit. This is the reason why, wherever possible, as in Saint-Louis and Gorée (Senegal), James (Gambia), and Bance (Sierra Leone), slave dungeons were located on islands to render escapes and attacks difficult.
African people opposed transatlantic slavery to the extent that in some areas, such as Guinea-Bissau, Europeans gave instructions that as soon as people approached their ships “the crew is ordered to take up arms, the cannons are aimed, and the fuses are lighted. One must, without any hesitation, shoot at them and not spare them. The loss of the vessel and the life of the crew are at stake”.
From the early 16th century onwards, it is documented that ships belonging to an African “fraternity” patrolled in the Gulf of Guinea, with their crews of 60 and more armed men.
Such resistance was also put up by various chiefs and kings. Until the mid-18th century the entire countryside from Sierra Leone to Cape Mount was rife with rebellions against transatlantic slavery. Not a single year passed without groups of Africans attacking some slave vessel. People succeeded in establishing free zones on the coast and attracting runaway slaves from all over the area.
Tragically, the resistance of African leaders and people did not prevail because Europeans supplied fire-arms to African rulers and individuals who were ready to enslave others. This scheme resulted in a situation where the choice for most Africans became one of being enslaved or enslaving others.
In the 18th century alone, between 283,000 and 394,000 guns were imported into Africa each year by European traders. At least 20 million guns were sold to African merchants in total during the time of transatlantic slavery. Between 1750 and 1807, England sold massive quantities of both gunpowder and lead annually.
These arms exports were controlled by European states, as can be seen by means of the many examples cited here. Wars were oftentimes directly stimulated by European states in order to produce slaves for their use. For many regions, the relationship between gun importation by Europeans and the expansion of transatlantic slavery has been clearly established.
Such conduct by European states, constitutive for transatlantic slavery in its entirety, taken together with other essential elements of the transatlantic slavery system for which those European states were solely responsible – such as slavery legislation and the setting of policy for the Middle Passage and on the colonies – engages the legal responsibility of European enslaver states via Art. 8 of the International Law Commission’s Articles on State Responsibility.
Transatlantic enslavement led to a massive expansion of slavery in Africa, and slave societies are generally not innovative since people with no perspective on freedom have little incentive to develop their efficiency. This situation in turn facilitated the imposition of European colonial domination that aggravated the problem structurally, technologically and mentally, thus hardening the chain imposed by transatlantic slavery, not broken until today.
Only a comprehensive reparation strategy, involving different forms of reparation such as restitution (repatriation), compensation (financial reparation for the genocide and stolen labour), satisfaction (assessment of what really happened, and diffusion of that knowledge; as well as the naming of responsibility) and cessation (abandonment of genocidal structures of exploitation) can “repair” this global situation.
So for what exactly does the entitlement to reparations due under international law constitute? The general and foundational rule of the international legal reparations regime was laid out by the Permanent Court of International Justice when it proclaimed in the Chorzow Factory case that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”.
Whatever the details of reparation will finally be, if we stick to the requirements of international law – that is, to redress the damage as far as possible – and of African and European legal traditions, we will get to where we need to go. Any reparations that do not respect these legal requirements and aim to restrict themselves to the sole payment of a certain amount of money could never be adequate to settle this claim.
The ultimate aim of reparations must be the destruction of the structures of exploitation that have persisted since transatlantic slavery.
If the general goal of reparation, as defined by law and justice, is to “as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”, this would involve the re-establishment of African sovereignty and the end of the genocide against African people and of global apartheid. Considerate of this, it is evident that reparation for this crime, though demanded by law, would in the last consequence result in a fundamental change of the global system and the end of capitalism such as we know it.
Beyond the legal case for reparations, today the fact remains that Africa was and is the resource-richest continent of the globe.
Before transatlantic slavery, these resources were not taken from the continent but remained for the benefit of its people. But after transatlantic slavery and up until now, structures were put firmly in place to drain the wealth of Africa and make hundreds of millions of Africans suffer poverty.
Reparation, the healing of Africa, is also vital for the indispensable re-balancing of our planet. The Western system, which has emerged out of transatlantic slavery and is still dependent on mechanisms and structures laid down in transatlantic slavery, has not only killed off unimaginable numbers of people during the past centuries, but has also brought our planet to the verge of collapse.
This system, that is also responsible for the massive environmental catastrophe that we are currently faced with, has its foundation in the enslavement of African people and of Africa. Reparation, if sticking to international law, also translates into the abolition of this system.
One of our great challenges in these times is to grasp the signs of the moment and get the global social justice and environmental movements to understand that their claims are in fact connected to the claim for transatlantic slavery reparations, and that it is a claim that is well grounded in international law. We have a legal entitlement to the end of capitalism, of genocide, of racism and of massive industrial and nuclear pollution.
Looking at our world, any sound-thinking person should easily see that it is in serious and urgent need of re-balancing and healing, if we are to stay here. Transatlantic slavery reparation is fundamental to this healing.