Don't doubt justice of reparations claim

By Lord Anthony Gifford, Guest Columnist

Over the last 12 months, there has been a dramatic shift in the debate over reparations. In July 2013, the CARICOM heads of government set up a CARICOM Reparations Commission to establish the case for reparations. In September 2013, the First Caribbean Reparations Conference was held in St Vincent.

In March 2014, the heads of government approved a report from the commission which laid out a legal strategy and a 10-point action plan. We have moved from an era where the case for reparations was advanced in aspirational terms by prominent individuals, to a phase in which Caribbean governments will make detailed proposals for negotiation with the former slave-trading powers, with recourse if necessary to the International Court of Justice.

The Jamaican Government led the way in setting up a National Commission of Reparations.

There remain a number of sceptics and doubters. For them, I would like to repeat the fundamental principles that underpin the claim for reparation:

1. The transatlantic trade in Africans and the institution of chattel slavery in the Caribbean were manifest crimes against humanity. There was no precedent for the horrors that were endured by those who were bought, sold, transported and exploited like so much property. By comparison, the forms of slavery that existed in Africa were more like serfdom, and did not strip the individual of his or her humanity on the basis of race alone.

2. It is a principle enshrined in international law that those who perpetrate crimes against humanity must make reparation. The Permanent Court of International Justice laid down in 1928 in the Chorzow Factory case that "reparation must, as far as possible, wipe out all the consequences of the illegal act".

3. There is no statute of limitations in relation to crimes against humanity. The descendants of those who originally suffered may claim against the successors of those states who committed the crimes, if they still suffer from the consequences of the crimes. Thus the government of New Zealand has restored land and made compensation to the Maoris for wrongs done in 1863. Germany made massive payments to Israel as compensation for the effects of the Holocaust.

4. Slavery was not legal at the time, as the UK government has claimed. In the case of Smith v Gould in 1706, Chief Justice Holt ruled that "by the common law, no man can have property in another". In the case of Somerset v Stewart in 1792, a slave owner wanted to take one of his slaves back to Jamaica, but Lord Mansfield said: "I cannot say this case is allowed or approved by the law of England; and therefore, the black must be discharged." There was even an act of Parliament passed in 1750 stating that "no commander or master of any ship trading to Africa shall by fraud, force or violence, or by any other indirect practice whatsoever, take on board, or carry away from the coast of Africa, any Negro or native of the said country."

5. The fact that some African rulers were accomplices to the trade is irrelevant. There were many who resisted, but also many who were coerced or bribed into acts of collaboration. It in no way absolves the responsibility of the European powers which instigated, directed and profited massively from the trade.

6. At Emancipation, the slave owners were given huge compensation for the loss of their 'property', but the people who were freed got nothing for their lifetime of unpaid labour. This is the fundamental injustice, the consequences of which are felt today, which the movement for reparations seeks to address.

10-point action plan

The CARICOM Commission has put forward a 10-point action plan called the Caribbean Reparatory Justice Programme. It includes a full formal apology; repatriation for those who wish to return to Africa; a programme for indigenous peoples; the need for cultural institutions; a public-health crisis programme; the eradication of illiteracy; a programme for African knowledge; psychological rehabilitation; the transfer of technology; and the cancellation of debt.

As a citizen of both the UK and Jamaica, I urge Jamaicans to put doubt aside and stand up for reparations, just as I urge the government and people of Britain to understand and support the need for reconciliation and fair reparation. We need now to debate the forms and means of reparation that are required.

Lord Anthony Gifford, QC, is an attorney-at-law and a member of the National Commission on Reparations. Email feedback to columns@gleanerjm.com.