United Kingdom | Justice Delayed

IN HIS SPEECH TO THE UN GENERAL ASSEMBLY on 27 September this year, Ralph Gonsalves, the prime minister of the Caribbean island country Saint Vincent and the Grenadines, did not shy away from controversial subjects. He discussed the global failure to achieve the United Nations’ Millennium Development Goals, criticised the United States’ economic blockade against Cuba, addressed international failures in Syria and Haiti, and expressed hope about negotiations over the Israel–Palestine situation. He then turned his attention to a particularly thorny issue: that of former colonising countries in Europe paying reparations for their past involvement in slave ownership. “The historic wrongs of African slavery, and their continuing consequences, must be righted, must be repaired, in the interest of our people’s humanisation,” Gonsalves said.

Gonsalves first raised the issue of reparations in 2011, the UN’s “International Year for People of African Descent”. In 2014, he will take over the leadership of Caricom, an alliance of 15 Caribbean nations, and his speech in New York this year signalled his intention to ramp up efforts to claim compensation for slavery for the people of his region.

Caricom was established in 1973 as an economic and political alliance to promote development and cooperation among its members. It has been criticised over the years for failing to achieve this; in 2010, the Jamaica Gleaner newspaper said the organisation had “failed to plan, contrive, or achieve an economic breakthrough”, and this year it published an article by Ronald Mason, a Jamaican lawyer, titled ‘Kick Caricom to the kerb’. Gonsalves himself criticised the body in 2010 for having “a serious lack of leadership”.

As he waits in the wings to provide the leadership he thinks has been absent, Gonsalves has put a topic on Caricom’s agenda that stands out amid the alliance’s largely economic agenda. In July, Caricom revealed that it had employed the British law firm Leigh Day to pursue a claim against the United Kingdom, France and the Netherlands for their roles in the transatlantic slave trade between the 16th and the 19th centuries. While the call from activists for reparations for slavery is not a new one, Caricom’s increasing involvement is a sign that Caribbean governments are taking a greater interest in the matter. “This is a serious conversation,” Gonsalves said to the UN. “I’m not a little boy holding up a placard. I’m the prime minister of an independent country.”

Those involved in the quest for these reparations argue that the lingering social, physical, political and economic effects of the slave trade are evident today. “Slavery is not in the remote past—the legacies are all around us,” Verene Shepherd, chair of the Caricom reparations committee in Jamaica, wrote to me in an email in October. “Slavery was a crime against humanity and was state-sanctioned. Reparations are a way to enable justice to be done to populations that were wronged. We hope to help the complicit nations to heal the wounds of the past.”

But such an endeavour is fraught with difficulties. While few dispute the horrors of slavery, high-profile figures such as David Horowitz, an American conservative activist and author of the 2003 book Uncivil Wars: The Controversy over Reparations for Slavery, argue that making people pay for atrocities that happened before they were born is unfair and divisive. Others can see the logic behind reparations, but say they are unworkable in practice. The governments that would be targeted for compensation are particularly dubious. “We do not see reparations as the answer,” the UK Foreign and Commonwealth Office told me in an unequivocal statement on 3 October. “We should concentrate on identifying ways forward with a focus on the shared challenges that face our countries in the 21st century.”

Caricom was inspired by a Leigh Day victory earlier this year against the British government. The firm won £20 million for a group of 5,228 Kenyans who were tortured during the Mau Mau uprising against colonial rule in the 1950s and 1960s. “This case has given people encouragement,” Lord Anthony Gifford, a barrister, told me over the phone from Jamaica in October. Gifford has a long-standing interest in the issue of reparations and presented a paper called ‘The Legal Basis of the Claim for Reparations’ to the first pan-African congress on reparations, held in Nigeria in 1993. “It has made people in the Caribbean realise it’s possible to challenge historical wrongs,” he added.

The Mau Mau case was not the first successful claim for reparations for humanitarian atrocities. In 1952, Germany agreed to pay Israel 3 billion Deutsche marks for the persecution of Jews during the Holocaust. In 1965, Japan paid South Korea $500 million to compensate those forced into labour during the Second World War. The US government paid out more than $1.6 billion for the internment of 110,000 Americans of Japanese origin in 1942.

In all these cases, it was the victims themselves or their immediate relatives seeking reparations. In the case of Caricom, those making the claim are the descendants of people who died more than a century ago. “Transatlantic slavery ended in 1838, so there are at least three generations between enslaved people and those claiming reparations today,” said Nick Draper, a researcher on a University College London project titled Legacies of British Slave Ownership. Draper has written numerous papers about transatlantic slavery, as well as a book called The Price of Emancipation: Slave-ownership, Compensation and British Society at the End of Slavery, which was published in July this year.

This passage of time is central to a controversial 2001 article by David Horowitz, titled ‘Ten Reasons Why Reparations for Slavery Is a Bad Idea—and Racist Too’, which he published as an advertisement in student newspapers across the US. In it, he argued that there was no single group clearly responsible for slavery. “Black Africans and Arabs were [also] responsible for enslaving the ancestors of African-Americans,” he said. “Are reparations to be paid by their descendants too?” He argued that “no one group benefited exclusively from [slavery’s] fruits”. “If slave labour created wealth for Americans then obviously it has created wealth for black Americans as well, including the descendants of slaves.” Horowitz added that the US today comprises people whose ancestors had no involvement in the slave trade—a defence that could also be made for Britain, France and the Netherlands.

Ernest Allen, a professor of Afro-American studies at the University of Massachusetts, and Robert Chrisman, the editor of The Black Scholar journal, soon rebutted Horowitz’s claims in an article—‘Ten Reasons: A Response to David Horowitz’— arguing that the principal responsibility for the institutionalisation of slavery rested with Europe and America; that slavery was central to the growth of western Europe and the US and simultaneously destabilised African economies; and that the debts and obligations of the modern incarnations of the states responsible remain. Draper’s slave ownership project at the University College London—though neutral on the subject of reparations, made similar arguments, positing that the residents of the UK, US and Europe continue to enjoy comparative wealth today as a result of a history of slavery.

Even among those who accept these arguments, there is still some disagreement as to how to quantify damage—and therefore how to calculate reparations. Draper said that one approach was to calculate the money that should have been paid to enslaved people for their work. “We know how many people were enslaved, for how long and what their wage structure should have been,” he said. “So we can work out a cumulative sum and express it in today’s terms.” Another approach takes into account the £20 million the British government paid former slave owners after the trade’s abolition in the 1830s. “You could say the money should really have gone to former slaves, and translate it into modern terms,” Draper said.

Such calculations quickly lead to vast sums—one reason European governments have been so reluctant to engage in this conversation so far. “You could make £20 million into almost any amount today,” said Draper. “If you think of it in terms of real wages, it would equate to about £20 billion, but if you look at it as being 40 percent of British government expenditure in that year, it becomes £200 billion.”

Partly in response to these problems, Leigh Day is taking a different approach to the Caricom case compared with the Mau Mau claim and other cases involving reparations. Speaking on the phone, Martyn Day, a senior partner at the firm, told me he advised Caricom at a recent meeting to focus on the social and economic impact of slavery on Caribbean states today, rather than seek compensation for historic wrongdoings. That is, rather than seeking to translate the value of unpaid wages and the suffering of enslaved people to modern day terms, he sees more potential in pursuing a claim based on the underdevelopment of Caribbean countries today as compared with former slave-owning nations, and on effects on its population that can be traced back to the treatment of their ancestors.

Making a link between slavery and modern day disadvantage is difficult, but not impossible. “Intuitively, almost everybody would say of course there’s a connection between where we are today and where we were 180 years ago,” Draper said. But research is needed to make this link explicit. If Caricom follows Day’s approach, its Reparations Commission, led by the noted Barbadian historian Sir Hilary Beckles, will be tasked with putting together the evidence of these links, by commissioning studies and collating expert opinions.

Day and Draper suggested that such research could focus, for example, on the low levels of literacy and scarce educational infrastructure Caribbean countries were left with after decolonisation. “In the Caribbean there were no tertiary institutions of education until close to the Second World War, for example,” Draper said. “And when independence was granted, literacy was very low.” According to this argument, the oppression, inequity and lack of opportunity of colonised times lingered and were laid bare when the descendants of the enslaved people eventually took the reins after their independence.

Another avenue of investigation could be in health. Research into epigenetics—a field which looks at the influence of environmental factors on genes—has suggested that the effects of the diets and the living and working conditions of enslaved people can be seen in the health of their descendants. The American Journal of Human Biology, for instance, published a series of studies in 2008—including ‘Low birth weight of contemporary African Americans: An intergenerational effect of slavery’ by the anthropologist Grazyna Jasienska—that linked the genetic risks such as cardiovascular disease and low birth weights in African Americans to social factors including the legacy of slavery. Draper said that the prevalence of high blood pressure in the present day Caribbean population is higher than

average. “There is also a high level of diabetes in the Caribbean,” said Day. Caricom’s research could focus on establishing a link between these modern health problems, and the lives of their enslaved predecessors.

When it comes to putting a figure to these consequences, Draper believes that no figure could be considered an “accurate” compensation, but that this is ultimately irrelevant. “The intention with these numbers is not to quantify damage done to enslaved people, but rather provide some kind of numerical framework to legitimate requests,” he said. “In the end, the reparations debate is about what can be done to improve the lot of those people who suffer the legacies of enslavement.” He believes reparations could come in various forms—including funding for health or education, or even specific projects. “The Caribbean has no museums relating to slavery, for example, and there is a strong feeling that the youth are missing out on understanding an important part of their history,” he said.

Caricom and Leigh Day hope that their reasoning will encourage European governments to be more responsive. “The Caribbean hopes that those who committed the crimes of slavery and genocide will sit at the table with Caricom and negotiate a settlement in a non-confrontational manner,” said Verene Shepherd, the social history professor. Martyn Day said he hoped there could be an “amicable solution” with the governments. “If not, then we will have to consider taking the case to the International Court of Justice,” he added.

It is unclear how the European governments will respond. The British government stressed in the wake of the Mau Mau verdict that the case was a standalone deal, but Day argues that it has “opened a Pandora’s box”. The Kenyan case has not set a precedent, said the barrister Anthony Gifford, because the two situations are quite different. “But it’s a wonderful case that has given people a lot of encouragement,” he said.

Caricom and Leigh Day may also have to contend with opposition from other sources. When the law firm’s appointment was revealed in July, a grassroots group called the Pan-Afrikan Reparations Coalition of Europe (PARCOE)—which says it is working to amplify the voices of African communities on the subject of reparations in Europe—criticised what it saw as a “top-down” approach and took issue with the decision to enlist Leigh Day on the grounds that the “paltry sum” it secured for the Mau Mau victims was not commensurate with the torture and suffering of the Kenyans, and was an “orchestrated imperialist swindle” rather than a victory. “It is important to ensure that law firms retained have the proven track record of being able to effectively work with and respect the political and legal self-determination of Afrikan and Afrikan Caribbean communities,” it said in an open letter to Caricom heads of government.

A positive verdict for Caricom could set off a cascade of similar litigations by other former colonies, including India. Sreeram Chaulia, a professor and dean at the Jindal School of International Affairs in Haryana, who has written extensively about the subject of reparations for colonialism and its implications in India, pointed out in a telephone interview that Britain extracted an enormous amount of resources and labour from its colonies—India in particular—and that this could conceivably form the basis of claims. But Gifford believes the legal grounds for compensation for colonialism as a whole are shaky. “Many manifestations of colonialism were crimes against humanity,” he said, “but whether the institution of colonialism itself was illegal under humanitarian law is debatable.”

Chaulia, Draper and Gifford agreed that there could be the potential to pursue claims for specific incidents—the Jallianwala Bagh massacre or the Bengal famine of 1943, for example. But, as these events happened before a 1954 change in UK law that allowed judicial discretion—the power to make certain decisions independent of the executive or legislature—Day says they might be more difficult to get off the ground than the Mau Mau case.

There has never been a strong call in India for reparations. Chaulia noted that the post-independence government decided not to pursue claims against its former rulers, and because India has been relatively stable since then, such calls never emerged. “There is also a broadly pro-Western attitude in India among the English-speaking elite—a sense that we need Europe and the US, and that colonialism has a mixed legacy,” he added. Nevertheless, the Caricom case has important implications for India and other former colonies, and its progress in the UK courts will be closely watched.