Introduction
The death of Her Majesty Queen Elizabeth II, Queen of The United Kingdom of Great Britain and Northern Ireland has sparked many conversations on decolonization, colonial legacy, accountability, criticism of the monarchy, and more. One topic that has come up frequently, but is now, perhaps, being discussed with renewed vigour is the acknowledgement of harm caused by colonization and reparations that former colonial powers owe to countries they oppressed and colonised.
Recently, countries such as Germany and Belgium have admitted to atrocities and injustice perpetrated in the colonial era, to a certain extent. Belgium’s King Philippe “expressed regret for racism” in Congo’s Parliament in 2022, but stopped short of issuing an actual apology. In 2021, Germany agreed to pay compensation worth €1.1bn to Namibia for the Ovaherero and Nama peoples’ genocide. However, the joint declaration refrained from using the term “reparations”. Moreover, the official press release from the German Foreign Office categorically stated that while the compensation was a “gesture of recognition”, it could not serve as a basis for legal claims. This euphemistic language has been deservedly criticised and showcases the reluctance and fear that more direct language could not only set a legal precedent but also set off more claims against former colonial powers. This piece will attempt to engage with the legal responsibility of States that were former colonial powers and the reparations they owe under public international law and its significance in today’s supposed post-colonial world.
Overview of Reparations and Restitution under Public International Law
In 1928, the Permanent Court of Justice, in the Case Concerning the Factory at Chorzów (Claim for Indemnity) (Merits) (“the Factory at Chorzów case”) stated that “reparation must, as far as possible, wipe out all consequences of the illegal act and re-establish the situation which would, in all probability have existed if that act had not been committed.” The principle of reparation gained momentum in the post-World War II period and is codified under Article 75 of the Rome Statute, the primary legal instrument relating to international criminal law. Article 75 authorises the International Criminal Court (ICC) to “establish principles relating to reparations to, or regarding victims, including restitution, compensation and rehabilitation”. Prior to the adoption of the Rome Statute in 1998, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1989 (“Declaration”) that was passed by the United Nations General Assembly, under Principle 8 provided that offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Even before the Declaration, the General Assembly’s resolution in 1974 adopted the Charter of Economic Rights and Duties of States (“Charter”). The Charter, under Article 16 recognised that the elimination of colonialism and the economic and social consequences thereof was essential for the development of post-colonial States. Article 16 further goes on to provide that States which have practised colonial policies owe an economic responsibility to their former colonies and its peoples for their victimization, for damage and drainage of their natural resources and that all States must extend assistance to them.
In 2005, 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 (“Basic Principles and Guidelines” / “Guidelines”) was adopted by the General Assembly of the United Nations, and became the first-ever comprehensive codification of the rights of victims of international crimes to reparations, remedies, and access to systems of justice. Reparations for harm suffered are provided under Basic Principle and Guideline IX, which includes inter alia restitution, compensation, rehabilitation, guarantees of non-repetition, and public apology, including acknowledgement of the facts and acceptance of responsibility. It is important to note that the Basic Principles and Guidelines did not “create” any new law, and merely highlighted the existent laws and standards under international human rights law. These Guidelines were also significant because they were the first victim-centric instrument under public international law that laid down the obligations of a State in case it breached international human rights law and international humanitarian law. It is important to note that the various tenets highlighted by Basic Principles did not include “aid” as a separate, independent principle for making reparations.
Further, apart from the Basic Principles and Guidelines, the other important instrument about reparations and restitution by States can be found in the International Law Commission’s Articles on State Responsibility (“Articles”) which provide for the responsibility of States for internationally wrongful acts. Reparation is contained in Article 31 which lays down that the responsible State is obligated to make comprehensive reparation for the injury, including any “material or moral” damage, caused by the internationally wrongful act. Article 35 provides for restitution stating that a State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to restore the state of affairs to how they were prior to the wrongful act. Crucially, complete reparation for the injury caused by the internationally wrongful act has been defined as restitution, compensation and satisfaction, either by itself or jointly under Article 34.
The case for reparations is further substantiated by more recent precedents handed down by several domestic courts, such as in the case of Stichting Komite Utang Kehormatan Belanda v. Netherlands (2020), a trial judgment delivered by the Hague Court of First Instance where the court found the state of Netherlands guilty of unlawfully killing male members of the Rawagedeh people in Indonesia at a mass level in 1947. The court subsequently went on to set aside the statute of limitations and ordered that reparations should be awarded to victims.
The UK High Court of Justice (EWHC) in Mutua and others v. The Foreign and Commonwealth Office, a significant judgement in 2012, adjudicated the issue of reparations owed to victims of atrocities perpetuated by the colonial British government against the Mau Mau people in Kenya. The court refused to dismiss the case brought against the present government 50 years after the alleged torture and eventually led to the British Government paying £19.9 million in damages to over 5,228 claimants, as compensation.
Thus, it is apparent that there is ample evidence in terms of precedents as well as several treaties and declarations under international law to support claims of reparations by former colonies.
“Aid” and the Misplaced Saviourism of the Global North
While it is now largely accepted that there ought to be reparations for colonial injustices, the secondary question that has taken on heightened importance in today’s times is the form such reparations should take. Many Western countries haunted by their colonial past have advocated for a development-related approach, meaning that they would contribute monetarily towards various infrastructure and development projects in the former colony. However, this has rightly been questioned, as reparations are not synonymous with aid or mere monetary compensation.
There’s little doubt that the underdevelopment of former colonies in the Global South is deeply entrenched to a large extent, in imperialism and colonialism. For that very reason mere aid that former colonies ironically categorise as “humanitarian aid” cannot be equated with reparations, as the ultimate aim of seeking reparations is securing justice, an objective that mere aid cannot fulfil. Another deeply problematic aspect of aid is that it conveniently disguises the actions of the countries granting aid (who are often former colonial powers) in the garb of “benefactors” when in reality, the Global South is suffering the consequences of the plunder of their resources by these very countries. For instance, if we set out to calculate Britain’s debt to India for colonial exploitation and the mass drain of resources suffered by India during the British Raj, the figure is as whopping as £3 trillion. Apology and atonement are integral elements of meaningful reparations as well.
Simply put, reparations and aid can never be equated, and developmental aid cannot be viewed as a form of reparations. Poverty is not a condition that countries of the Global South just happen to be grappling with, but is systemic and flows from colonial era looting, erasure of native economies and other injustices perpetuated by colonisers. Thus, colonialism along with its subsequent ramifications is one of the primary contributing factors for the continued social and economic marginalisation of former colonies. As former colonies continue to see these ripple effects of colonialism, reparations are the rightful demand being sought to remedy these injustices. The call for reparations is not merely a demand for monetary compensation, but a holistic demand for justice which encompasses several facets of the lives and culture of former colonies, ranging from land to restitution of stolen artefacts of historical and cultural importance. Scholars have rightly argued that the language adopted by the development approach frequently obfuscates and erases the cause of the underdevelopment of former colonies, which is colonialism itself. Instead, the grant of aid for the development of underdeveloped former colonies conveniently drapes colonisers under the garb of the benevolent benefactor. But in reality, repairing a wrong whether it be historic or otherwise can never be termed as “charity” or “aid”, and that is exactly what calls for demand for reparations, righting historical colonial injustices by apology, compensation, repair and healing.
Concluding Remarks
Further, the role and involvement of the descendants of survivors of atrocities carried out during colonial times is complicated as well and has become one of the major points of criticism in agreements related to reparations. For instance, the reconciliation agreement between Namibia and Germany was criticised for not listening to descendants of victims. Without their voices being integral to the reconciliation, the process takes an undoubtedly patronising undertone. These complex questions have no straightforward answer, as the path to reparations is not linear.
Perhaps a framework that can be considered is the agreement between Libya and Italy in 2008. Then Italian Prime Minister Silvio Berlusconi had apologised to the Libyan people for the Italian colonisation of Libya and the consequent harms suffered between 1911 and 1947, and the agreement between the two nations detailed reparations worth $5 billion which would be used to finance various infrastructure and medical projects.
A comprehensive reparations strategy that entails various forms of reparation such as restitution, compensation, satisfaction and cessation is necessary to repair the vast harms of colonialism suffered by peoples worldwide. A half-hearted, piece-meal approach that doesn’t include a real apology and excludes descendants of victims does not heal wounds and is far less than what formerly colonised nations and their people deserve.
Avanti Deshpande is an Indian-qualified lawyer and alumnus of ILS Law College, Pune