Towards Reparations for the People of the Sudan

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THE demand for economic reparations is based on genocide and on the merciless and systematic killing of Sudanese people and the attempt to push them off their lands, in order to mine their lands for natural resources . Chattel slavery continues in Sudan and the Borderlands in general, stretching from Mauritania on the Atlantic, through countries such as Mali, Niger and Tchad to Sudan on the Red Sea. As Prof. Sidney Harring states in his brief ‘German Reparations to the Herero Nation: An assertion of Herero Nationhood in the Path of Namibian Development’ – it would be both a futile and dishonorable discourse to venture into any kind of a comparative analysis of genocide … genocide is genocide … Modern international law of reparations is dominated by extensive Jewish claims for reparations against Germany and other countries, but this is not the limit of reparations claims. Even in the context of World War II, reparations have been paid to others, including US$1 billion to Americans of Japanese descent for their imprisonment and loss of their lands. Also reparations have been made in a parallel settlement to Japanese Canadians, and a case is pending against the Japanese for reparations for Korean ‘comfort women’ forced into prostitution by the Japanese army. Other European claims, including that of the Romani people, raised by other peoples subjected to mass extermination in concentration camps, have failed. Where there have been successes, these represent important advances in human rights law. The Herero claim for reparations prepared by Sidney Harring gave careful attention to the existing international law of reparations. Such a claim is preceded by a general inquiry into the appropriateness of reparations as a political and legal remedy for the damage caused by colonial war and internal civil strife. The Sudan Commission for Human Rights (SCHR) has considered these issues and has opted for reparations as the appropriate remedy for the human rights abuse suffered by the people of the Sudan. As Harring says, if situations (such as in the Sudan) are ‘reasonably analogous to existing reparations claims, to dismiss them out of hand must turn on considerations that can only be called racist’. Harring goes on to say that if such claims are well grounded legally, then broader policy issues may be implicated and must be heard, for there exists no consistent legal basis for any of the modern reparations regimes. The concept of reparations is rooted in natural law, the common law and international law – for it’s an equitable principle that the beneficiary of an ill-gotten gain – for instance crude petroleum – should make restitution, both out of contrition and goodwill, but also to restore the victim to some part of their previous life. Harring states that ‘within the modern world, liberal democracies have used the language of reparations in making voluntary payments through various statutory regimes to their own indigenous or minority populations’ – most often such settlements are ultimately political – done by parliaments and governments. To follow the example of the Jewish claims against Germany – supportive state governments assisted the claims and a formal claim was filed on behalf of the State of Israel, with the Government of Germany. These steps were followed by negotiations, with a final agreement resulting through political processes, which were voted on by the German Parliament. This legislation has subsequently been amended and expanded. In the Sudan case it was reported by Prof. Abdel Ghaffar M. Ahmed by his e-mail of the 21st January 2003, that since May 2001, a group of Sudanese, invited by the Organisation for Social Science Research in Eastern and Southern Africa (OSSREA), having discussed the issue of slavery, came up with the suggestion that an apology was at the time in order. According to Prof. Abdel Ghaffar, that position was then taken up by members of the opposition in the Sudan. This position was reflected in a statement made by Saddig El Mahdi in mid-January 2003 as reported in the Al Ahram newspaper in Cairo, Egypt. The Durban United Nations Conference Against Racism (WCAR) held in 2001 was part of the growing movement for reparations, for the enslavement of Africans and for colonialism in general. The Declaration of the NGO Forum of the World Conference Against Racism dated 3 September 2001, states at section 27:- ‘Recognizing the rights of all victims of slavery, racism, racial discrimination, xenophobia and related intolerance to reparations of all forms.’ The Declaration of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (31 August to 8th September 2001) under ‘Sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance’ at section 29 states:- We strongly condemn the fact that slavery and slavery-like practices still exist today in parts of the world and urge states to take immediate measures as a matter of priority to end such practices, which constitute flagrant violations of human rights. The World Conference Against Racism and its NGO Forum have added to the growing concern for reparations for African slavery. Already there exists substantial legal documentation on this issue. In 1993 in Nigeria a Pan-African meeting on reparations, chaired by Ambassador Dudley Thompson was convened. As Harring states, the current discourse on African economic recovery is premised on the understanding of a quid pro quo from the developed countries to Africa for the past super-exploitation of Africans. Also, the thirteenth and fourteenth amendments to the United States Constitution provides moral and legal credibility to the case for reparations for African slavery and ‘for the devastation of colonialism, primarily involving blacks still living on the African continent’. The issue of quantum in the legal claim for reparations is a delicate matter, requiring more attention. Already there are some indications that the liberation movement might want a substantial monetary award. Legal claims in general require the setting of damages. The ‘costs’ of colonialism and slavery in the ‘Borderlands’ might be described as ‘incalculable’ – thus presenting a barrier to these claims. Interestingly Harring, using the analogy of the litigation of the Herero of Namibia, is of the view that the significance of ‘quantum’ disappears where the claim is made by ‘a nation’. Also there exists no absolute law on the limitation of reparation claims. Harring goes on to state: For policy reasons, it makes no sense to limit reparations for genocide to the actual victims: they are most often dead, and that is precisely the nature of the evil of genocide and, for the same reasons, it makes no sense to require that some modern state represent the interests of a victimized people’. There exists no formal legal rules governing the law of reparations. Based on the experience of other reparation regimes, extensive legal posturing, creating a powerful moral climate supporting reparations and thus shaping public opinion is the primary stage for the realization of reparations. See – ‘The legal, claim for German reparations to the Herero nation’ on http://academic.udayton.edu/race/06hrights/GeoRegions/Africa/Namibia01.htm Excerpted from: Sidney Harring, German Reparations to the Herero Nation: an Assertion of Herero Nationhood in the Path of Namibian Development?, 104 West Virginia Law Review 393-497, 393-398, 401-410 (Winter 2002) (132 Footnotes Omitted)