The African Holocaust: Should Europe Pay Reparations to Africa for Colonialism and Slavery?

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ABSTRACT

For many people of European descent, slavery is little more than an unpleasant memory of a bygone and distant era, largely remembered more for the glory of empires lost and faded dreams of conquest and exploration. For many Africans and African Americans, however, slavery remains an unhealed wound that is frequently, if not constantly, reopened by feelings of continued oppression, manipulation, and discrimination. These disparate views clashed most recently at the U.N. World Conference Against Racism, held in Durban, South Africa in September of 2001.

Inspired by the U.N. Conference in Durban, this Note analyzes the potential for reparations between European and African countries as a possible solution to the lingering issues of slavery and colonialism. It does not argue for or against African reparations. Rather, this Note traces the historical development of the reparations concept through treaties and judicial action and addresses the legal and practical viability of reparations for African states.

Throughout the analysis, this Note emphasizes the moral forces that permeate this area of international law. The law among states is largely defined by changing humanitarian ideals. Although this Note does not attempt to critique the ultimate merits of these humanitarian arguments, it recognizes that their influence must be considered to properly evaluate the potential for African reparations.

By evaluating the legal avenues and pitfalls for African reparations, this Note seeks to advance the reparations discussion toward a permanent solution that is acceptable to all. Compensation for the oppressed is not the objective; nor is absolution for the oppressors. The real goal should be a lasting peace, devoid of both feelings of victimization and of undue blame. Humanity must find a way to put the issues of slavery and colonization to rest. Only by understanding the moral forces behind the dynamic concept of international human rights can a resolution that does not inspire future resentment be found.

To that end, this Note evaluates the development of the reparations concept since World War II regarding the Nazi Holocaust and other human rights violations. It discusses actions under the Alien Tort Claims Act and the Foreign SOvereign Immunities Act in light of judicial obstacles such as the Act of State Doctrine, the Nonjusticiable Question Doctrine, and the statute of limitations. Throughout the discussion, this Note brings to light the underlying sentiments that motivate the pursuit of reparations, encourage or discourage resolution by treaty or judicial settlement, and continue to inspire feelings of resentment and subjugation. Finally, this judicial and moral framework is superimposed onto African reparation claims for slavery and colonization to evaluate possible solutions through treaties or judicial action.

I. INTRODUCTION

In early September 2001, delegates from the world's Western democracies joined representatives from across the globe at the U.N. World Conference Against Racism (WCAR or Conference), expecting a celebration of global tolerance and diversity. (1) The Conference was intended to showcase a new global community, characterized by a sweeping moral commonality on human rights issues and a condemnation of the now supposedly universally-recognized reprehensibility of slavery and colonization. (2) Delegates from the Western states expected to revel in the moral progress the international community has made since the earliest days of the League of Nations. (3)

What they found, instead, was an atmosphere of divisiveness that threatened to undermine the entire Conference. (4) European delegates were dismayed by lingering resentment over slavery and colonization. (5) Rather than easily passing a resolution against race and gender discrimination, the delegates were faced with the possibility of being condemned for centuries of slave trading and colonialism. …