The need to address the enduring legacies of enslavement and colonialism, including through reparatory justice.

 

Africans and people of African descent were victims of enslavement, the trade in enslaved Africans, including the transatlantic trade, and colonialism (A/CONF.189/12 and A/CONF.189/12/Corr.1, chap. I, paras. 13, 14 and 100, and A/RES/69/16, annex, para. 17 (i)). It is estimated that between 25 and 30 million people were violently uprooted from Africa for enslavement (A/HRC/47/53, para. 55). The transatlantic trade in enslaved Africans caused the largest and most concentrated deportation of human beings, involving several regions of the world during more than four centuries.2 Slavery and the slave trade are prohibited under international human rights law and enslavement has been recognized among the acts constituting, under specific circumstances, a crime against humanity.3 This was also recognized in the Durban Declaration and Programme of Action of 2001, when it states that these offences are a crime against humanity and should have always been so, especially the transatlantic slave trade (A/CONF.189/12 and A/CONF.189/12/ Corr.1, chap. I, para. 13).4 The preamble of the International Convention on the Elimination of All Forms of Racial Discrimination and several international declarations have also condemned colonialism and related practices of segregation and discrimination.5

Africans and people of African descent continue to be victims of systemic racism and racial discrimination as a consequence of these past tragedies and crimes until present day (A/HRC/47/53, paras. 9–10). As recognized in the Durban Declaration and Programme of Action, colonialism, slavery and the slave trade are among the major sources of contemporary racism, racial discrimination, xenophobia and related intolerance (A/CONF.189/12 and A/CONF.189/12/Corr.1, chap. I, paras. 13–14). UNESCO and United Nations experts have documented the linkages between the past and the present, shedding light on the economic, psychological, social, political, cultural, educational and intergenerational dimensions of the lasting and structuring impact of past tragedies and crimes in contemporary societies. They have shown that the formal abolition of enslavement and colonialism was insufficient to dismantle the racially discriminatory structures built by those practices. Instead, it often gave way to racially discriminatory policies and systems, including segregation and apartheid, that perpetuated racial discrimination, oppression and inequalities. The European Parliament and the Caribbean Community (CARICOM) have also recognized that racism suffered by people of African descent is rooted in historically repressive structures of enslavement and colonialism. People of African descent in various countries have for decades called for accountability and redress for harms suffered due to enslavement, the transatlantic trade in enslaved Africans, colonialism and successive racially discriminatory policies and systems. There have been no comprehensive reparations to date for the harms suffered as a result of enslavement, the trade in enslaved Africans and colonialism and their ongoing legacies, including systemic racism and racial discrimination. When enslavement was formally abolished, some owners of enslaved Africans received compensation, whereas the victims did not (A/74/321, para. 11). Although in more recent years some States have taken initiatives to apologize and address past legacies, the High Commissioner noted that as of June 2023, no State had comprehensively accounted for the past and addressed its contemporary legacies and ongoing manifestations (A/HRC/47/53, A/HRC/51/53 and A/ HRC/54/66).

Reparatory justice has been an element of international discussions relating to people of African descent at least since the adoption of the Durban Declaration and Programme of Action in 2001, which established the link between past tragedies and crimes, including slavery, the slave trade and colonialism, and contemporary forms of racism, racial discrimination, xenophobia and related intolerance. In the Declaration, the moral obligation of States to take appropriate and effective measures to halt and reverse the lasting consequences of those practices is acknowledged. It is also emphasized that remembering the crimes or wrongs of the past, condemning its racist tragedies and telling the truth about history are essential for international reconciliation and the creation of societies based on justice, equality and solidarity (A/CONF.189/12 and A/CONF.189/12/Corr.1, chap. I, paras. 13, 14, 102 and 108). Under the programme of activities of the International Decade for People of African Descent, all States concerned are called upon to take appropriate and effective measures to halt and reverse the lasting consequences of, inter alia, slavery, the slave trade, the transatlantic slave trade, colonialism, apartheid, genocide and past tragedies, bearing in mind their moral obligations. The international community and its members are invited to honour the memory of the victims of these tragedies as a means of reconciliation and healing and called upon to contribute to restoring the dignity of the victims (A/RES/69/16, annex, paras. 17 (i)–(k)). Since the launch of the International Decade, an increasing willingness and emerging practice to acknowledge the need to repair the continuing impacts of enslavement, the transatlantic trade in enslaved Africans and colonialism, including through reparatory justice, at the national, regional and international levels, is apparent.

At the international level, the Human Rights Council adopted resolution 47/21 in July 2021, which, in its preamble, acknowledges that there is an increasing willingness and emerging practice to acknowledge the need to repair the continuing impact of enslavement, the transatlantic trade in enslaved Africans and colonialism. In September 2021, the General Assembly held a high-level meeting on the theme “Reparations, racial justice and equality for people of African descent” in commemoration of the twentieth anniversary of the adoption of the Durban Declaration and Programme of Action. In September 2022, the Human Rights Council held a panel discussion on the negative impact of the legacies of colonialism on the enjoyment of human rights. The Secretary-General and the High Commissioner have spoken on several occasions about the need for reparatory justice and encouraged States to initiate comprehensive processes to halt, reverse and repair the lasting consequences of past legacies. In the agenda towards transformative change for racial justice and equality, the High Commissioner encourages States and other stakeholders to confront past legacies, take special measures and deliver reparatory justice. The agenda provides recommendations for further action to: (a) acknowledge that truth, justice and reparations with regard to enslavement, the transatlantic trade in enslaved Africans and colonialism and their legacies contribute to non-recurrence and reconciliation and benefit all of society; (b) construct a shared narrative on these past legacies and their enduring consequences; (c) ensure effective participation of people of African descent and their communities in these processes; (d) make amends for centuries of violence and discrimination; and (e) dismantle structures and systems rooted in these past legacies and re-envision public spaces (A/HRC/47/53, para. 62 and annex, sect. IV). It is also stressed in the agenda that reparatory justice is essential for transforming relationships of discrimination and inequity and creating societies for all based on justice, equality and solidarity (A/HRC/47/ CRP.1, paras. 296 and 306). The Permanent Forum on People of African Descent has affirmed that reparatory justice is primarily about rectifying and transforming systemic and structural injustices that were established by past injustices and crimes against humanity – and in their place establish social and global justice in the sense of full and equal enjoyment of human dignity, rights and non-discrimination. The Committee on the Elimination of Racial Discrimination has called on States to effectively acknowledge in their policies and actions the negative effects of the wrongs occasioned on people of African descent in the past, including colonialism and the transatlantic slave trade (CERD/C/GC/34, para. 17). In its concluding observations on the periodic reports of some State parties, the Committee has raised concerns about insufficient awareness of slavery and the colonial past and the fact that these past legacies continue to fuel racism and racial discrimination in some countries (CERD/C/USA/CO/10-12 and CERD/C/NLD/CO/22-24). It has made recommendations to some State parties to adopt measures to address the ongoing legacies of slavery and colonialism, including public apologies and educational and awareness-raising measures, as part of their obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The Working Group of Experts on People of African Descent has documented the ways in which governments and private actors have participated in, and benefited from, these crimes and tragedies of the past in several countries.15 It has made specific recommendations to States to ensure that reparations are made for the centuries of harm and historical injustices suffered by people of African descent, notably as a result of enslavement and colonialism. It has recommended that States consider the CARICOM ten-point plan for reparatory justice as a guiding framework. In addition to financial compensation, it Encourage States to consider a range of measures, including public apologies, special measures and educational and awareness-raising initiatives with a view to disseminating accurate narratives about historical facts related to enslavement and colonialism. The former Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and racial intolerance has addressed the human rights obligations of Member States in relation to reparations for racial discrimination rooted in slavery and colonialism, stressing the need for a structural and comprehensive approach to reparations that accounts for historical wrongs and the persisting structures of racial inequality, discrimination and subordination rooted in slavery and colonialism. She has noted that reparations for people of African descent could not be fully achieved without a process of decolonizing international and national approaches to reparations and that survivors and victims should be at the centre of these approaches (A/74/321). The Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence has stressed the need to adequately address past crimes – committed during an armed conflict or by a repressive regime – to build a democratic, pluralistic, inclusive and peaceful society (A/HRC/45/45, para. 20). He has argued that the components and tools developed by transitional justice offer lessons and experiences that could be useful in responding to the legacy of violations of human rights and international humanitarian law stemming from colonialism and that transitional justice offers a privileged vantage point from which to address the deeper causes of colonial violence, notably through the establishment of truth commissions, reparation programmes, public apologies, memorialization and education measures, and guarantees of non-recurrence. He has also underlined the importance of the effective participation of and consultation with the victims and affected communities. At the regional level, CARICOM presented its ten-point plan for reparatory justice in 2014, which is aimed at achieving reconciliation, truth and justice for victims of slavery, genocide and racial apartheid and their descendants. In 2019, the European Parliament adopted a resolution on the fundamental rights of people of African descent in Europe, in which it calls for European Union institutions and member States to take steps towards meaningful and effective redress for past injustices and crimes against humanity (European Parliament resolution 2018/2899 (RSP)). In December 2022, the African Commission on Human and Peoples’ Rights adopted its first resolution on Africa’s reparations agenda and the human rights of Africans in the diaspora and people of African descent worldwide, in which the Commission called on States to establish a committee to consult, seek the truth and conceptualize reparations from Africa’s perspective, describe the harm occasioned by the tragedies of the past, establish a case for reparations (or Africa’s claim), and pursue justice for the trade and trafficking in enslaved Africans, colonialism and colonial crimes and racial segregation and contribute to non-recurrence and reconciliation of the past (ACHPR/Res.543 (LXXIII) 2022)

The right to adequate, effective, prompt and appropriate remedies, including reparation for victims of violations of human rights, is enshrined in international and regional human rights instruments. According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, remedies for gross violations of international human rights law include the victim’s right to: (a) equal and effective access to justice; (b) adequate, effective and prompt reparation for harm suffered; and (c) access to relevant information concerning violations and reparation mechanisms. Under international human rights law, reparation is not limited to compensation, but also includes restitution, rehabilitation and measures of satisfaction, such as guarantees of non repetition. (CCPR/C/21/Rev.1/Add. 13, and A/RES/60/147, annex, paras. 11, 15 and 18 ). Victims also have the right to the truth (E/CN.4/2005/102/Add.1). These responses should be proportional to the gravity of the violations and the harm suffered (A/RES/60/147, annex). Under the International Convention on the Elimination of All Forms of Racial Discrimination, States parties shall prohibit and eliminate racial discrimination in all its forms, which may include contemporary forms of racial discrimination that are rooted in enslavement and colonialism. They also have positive obligations to take special and concrete measures to ensure the full and equal enjoyment of human rights and fundamental freedoms for all, including people of African descent. The Convention also provides for the right to remedies and reparation for victims of racial discrimination. Ensuring accountability and redress for the historical wrongs and harms suffered as a result of enslavement and colonialism and their enduring consequences is complex and poses challenges, notably owing to the broad temporal and material scope of the wrongs and harms at stake (A/76/180, paras. 57 and 94, A/HRC/47/53, para. 60, and A/HRC/47/CRP.1, para. 289). Several States have admitted a moral, and sometimes historical and political, responsibility for these past wrongs and harms (A/HRC/47/CRP.1, paras. 259, 261 and 263), while rejecting legal responsibilities on grounds such as the intertemporal principle in international law and statutes of limitation (A/74/321, paras. 48–49, and A/76/180, paras. 23 and 27–29). Other challenges include the difficulty of identifying alleged perpetrators and victims when the harms have been suffered on a massive scale over long periods of time. In most cases, the pursuit of legal claims is complex. However, such difficulties cannot be the basis for nullifying the existence of underlying legal obligations (A/74/321, para. 51).

The High Commissioner has noted that delineation of State responsibility and the design and financing of effective reparations programmes that address the temporal and material scope and possible beneficiaries are challenging to define and negotiate and raise complex issues, notably regarding finan - cial compensation claims. Yet, in some contexts victims and perpetrators may still be alive. Furthermore, the continuous nature of some acts and crimes, as well as the exceptions of statute of limitations for serious human rights violations that constitute international crimes, may also provide possible ave - nues to surmount challenges (A/HRC/47/CRP.1, para. 289). Meaningful rep - arations for enslavement and colonialism may also comprise other measures, including through legislative and political channels (A/74/321, para. 51, and A/HRC/47/53, para. 64). Ultimately, the greatest barrier to reparations for co - lonialism and slavery may be that the biggest beneficiaries of both lack the po - litical will and moral courage to pursue such reparations (A/74/321, para. 15). As noted by the High Commissioner, reparations are one element of account - ability and redress (A/HRC/47/53, para. 64). Reparatory justice requires a multipronged approach grounded in international human rights law (Ibid.). This approach may encompass but is not limited to reparations. There is no one-size-fits-all model to address these issues. Reparatory justice processes should be tailored to the specificities of the situation in the country and to the demands of affected communities (A/HRC/47/CRP.1, paras. 289 and 304). Further research, discussions and consultations are required, notably to un - derstand what would constitute redress for people of African descent and the barriers they face. It is necessary to raise awareness and understanding about the linkages between past conduct and contemporary forms and manifesta - tions of systemic racism and racial discrimination. The very process of es - tablishing the truth about the legacies of enslavement and colonialism is an integral part of a comprehensive approach to reparatory justice (see sect. II.C below). Further legal research could also be helpful to delineate responsibility and with regard to the material and temporal scope of the wrongful acts.