US Has A Legal Obligation To Provide Reparations For Slavery

By Arif Ali, David Attanasio and Camilo Sanchez | July 26, 2020, 8:02 PM EDT

Arif Ali
Arif Ali
David Attanasio
David Attanasio
Camilo Sanchez
Camilo Sanchez
It is deeply regrettable that it took George Floyd's brutal killing to coalesce America's national consciousness on the complex issues surrounding racial inequality and injustice in the United States. Neither were eliminated by the 1964 Civil Rights Act nor the 1965 Voting Rights Act, historic and consequential as those instruments were.

These laws started a process of reform and reconciliation, but continued effort is required across all dimensions of society to address and eliminate systemic racism. These efforts must include recognition of the past wrongs committed against African Americans, including slavery, Jim Crow segregation, and systemic racial discrimination, as well as the institution of a serious and consequential reparations program encompassing truth, atonement and even monetary compensation.

The failure of the United States to provide a form for access to justice for this wrongdoing through a reparations program has not gone unnoticed at the international level. All of the United Nations' independent experts on human rights released an extraordinarily rare joint statement on June 5, calling on the United States to take action on reparations, as demanded by international law:

Reparative intervention for historical and contemporary racial injustice is urgent, and required by international human rights law. This is a time for action and not just talk, especially from those who need not fear for their lives or their livelihoods because of their race or ethnicity. Globally, people of African descent and others have had to live the truths of systemic racism, and the associated pain, often without meaningful recourse as they navigate their daily lives. International leaders that have spoken out in solidarity with protestors, and with black people in the United States should also take this opportunity to address structural forms of racial and ethnic injustice in their own nations, and within the international system itself.[1]

Since June 16, the United Nation's Human Rights Council has been actively debating the failure of the United States to address the systemic racism that is the background of the death of George Floyd. It is also considering a proposal to form a U.N. Commission of Inquiry for the United States to address the range of human rights violations that African Americans have suffered and continue to suffer.

Given the imperatives of international law and its standing on the international plane, the United States must establish the means, mechanisms and institutions for victims of its legacy of racism, and their descendants, to access justice. It can no longer foreclose the possibility of recompense for African American victims and recognition of its centuries of wrongdoing, while complying with its international legal obligations and maintaining its international leadership on such issues as human rights and respect for the rule of law.

Responsibility of the United States

Despite this, a common refrain by those opposing access to justice for African Americans through reparations is that individual Americans were not responsible for past wrongs, at least of slavery. They say that none alive today participated in those wrongs and many or most living Americans did not even have ancestors who participated in those wrongs.

But this refrain misses the point. Reparations are not about the responsibility of individual Americans; they are about the collective responsibility of our nation.

Our nation has been responsible for centuries of injustice against African Americans, with the original sin of slavery inscribed in our Constitution and Jim Crow laws, and systemic racism accepted for a century and a half thereafter. Reparations programs provide the victims with a forum in which to obtain justice.

Accepting the proposition that a nation as a whole may bear responsibility, numerous countries have implemented reparations for mass injustice, including Germany for genocide, South Africa for apartheid, Chile for torture and forced disappearance, Northern Ireland and Colombia for civil war, and Canada for forced separation of aboriginal children from families. What these examples have in common is that many or most individuals in the society were not directly implicated in the wrongdoing — it was the society itself that bore responsibility.

Indeed, starting in 1988, the United States itself provided reparations of $20,000 per victim to over 80,000 persons of Japanese ancestry who were wrongfully held in internment camps during the World War II.

As a moral and legal matter, this is a question of providing access to justice when an entire nation is implicated in the wrongdoing — as the United States has been in its enduring legacy of racism. When an entire nation is implicated, the entire nation must provide justice. Justice is served not simply by compensation or a determination of right and wrong, but also is served through the creation of a forum in which grievances can be aired, collective wrongdoing recognized, history corrected, and mechanisms for atonement and reparation implemented.

Through the redress provided by reparations, a society recognizes the victims of historical injustice as full and equal citizens who suffered wrongdoing enabled by an entire society. This has been the case of the reparations program in Germany, which, for over 60 years, has sought to ensure remembrance, penance, recompense and justice for the Holocaust. As recently as 2013, the German government agreed to pay close to $1 billion to the Jewish Claims Conference for the home care of all elderly Holocaust survivors.

These efforts provide a locus for dialogue, policy development and social reform — and thereby to remake threadbare social fabric. When apartheid ended in South Africa, it left a polarized society divided between victims, on the one hand, and perpetrators and bystanders, on the other. The different programs for reparations, including the successful Truth and Reconciliation Commission, confronted the silence and denial of the state-led abuses as well as exposed the role that the apathy of bystanders played, and recognized that all Black South Africans were victims of the system.

Administration of Reparations

Apart from the supposed lack of individual responsibility, a further point often raised in resistance to reparations is that it would be difficult or impossible to administer such a mass program of justice. But this ignores the many countries across the world that have managed to implement such programs following mass injustice, and often under much more difficult economic and social circumstances than those in the United States.

This is not to underplay the challenges; the United States would potentially have many millions of individuals with standing to seek reparations. It would not be possible for the regular courts to resolve this number of claims in standard judicial processes. Instead, the individual claims would need to be resolved through streamlined administrative proceedings, under the auspices of a dedicated federal government agency established for this purpose.

Such administrative reparations programs have proven capable of resolving the extensive claims arising from mass injustice. The United Nations Compensation Commission processed 2.6 million claims after the first Gulf War, Colombia's ongoing administrative reparations program has registered more than 6 million individuals, and Germany made reparations payments to 1.66 million beneficiaries for forced labor during the Nazi era.

Mass reparations or compensation programs have been possible by focusing on the verification of eligibility for redress, rather than assessing responsibility on a case-by-case basis. The creation of the reparations program itself is the acknowledgment of responsibility. All that remains is to verify whether individual applicants qualify for reparations based on the injustice that they or their ancestors suffered. This can be, and has been done, through the use of presumptions and heuristics to verify qualification for determined categories of benefits and redress.

It would be far from impossible to identify eligible beneficiaries for reparations in the United States, even if the scope of the program extends to slavery in the antebellum era. Spain has overcome a historical gap of 500 years in its program to grant citizenship to descendants of Sephardic Jews expelled from the Iberian Peninsula in 1492. It has allowed those descendants to prove their status through a variety of means, including certifications by secular and religious authorities.

Nor is cost a legitimate excuse for the failure to pursue reparations at all. Countries have tailored the package of benefits to the facts of the abuses and their particular economic and social circumstances. Even countries much less prosperous than the United States, such as Rwanda, Cambodia and Nepal, have sought to provide reparations for victims of mass atrocities. Germany, for example, has invested over a period of decades while maintaining a growing and prosperous economy.

Conclusion

The first step for the United States toward ensuring access to justice for past wrongs against African Americans is for Congress to pass H.R. 40, establishing a commission on reparations proposals, and adopt the proposal of Rep. Barbara Lee, D-Calif., for a United States commission on truth, racial healing and transformation.

While neither program is sufficient for the United States to meet its moral and indeed legal obligations to provide reparations, both are necessary. These exploratory programs involve no commitment to a full reparations program and have minimal budgets. But they would lay the necessary groundwork for a large-scale commitment on reparations, by documenting the historical injustices and defining the form of the reparations and criteria of eligibility. And they would do so on an inclusive and representative basis.

The reparations programs in other countries lay a path toward a successful reparations program in the United States for African Americans, and underscore its moral and legal necessity. While learning from these lessons may require humility on the part of a nation that conceives of itself as a world leader, pride must not be allowed to get in the way of doing what is right and respecting the rule of law.



Arif H. Ali is a partner at Dechert LLP and co-chair of the firm's international arbitration and public international law practice. He was section chief of the U.N. Compensation Commission, which was established to administer claims arising out of Iraq's 1990 invasion of Kuwait.

David L. Attanasio is an associate at Dechert.

Camilo Sanchez is an assistant professor of law at the University of Virginia School of Law and director of its International Human Rights Law Clinic.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://www.ejiltalk.org/we-cant-breathe-un-ohchr-experts-issue-joint-statement-and-call-for-reparations/

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