SLAVERY, REPARATIONS, AND POTENTIAL LEGAL LIABILITY:
The Hidden Legal Issue Behind The U.N. Racism Conference

Why did it take nine days for the world community to decide that slavery, both contemporary and past, is wrong? Some issues at the United Nations Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, such as the Mideast crisis or the treatment of refugees, are probably intractable. But slavery seems like an easy issue around which to build a consensus. So why did it become one of the two issues that almost sank the conference?

The answer probably has more to do with American tort law than with international diplomacy. The dispute between Israel and its critics, which led it and the United States to walk out of the conference, has been well-publicized. But the dispute and its accompanying publicity obscured a much deeper problem that had dogged the conference from its inception: the question of reparations for the trans-Atlantic slave trade. Opening up the reparations question and taking a stand on it inevitable has not just policy implications, but legal ones as well.

A Precedent for Reparations

There have been calls for some form of monetary compensation to the descendants of Africans enslaved in the Western Hemisphere for the past 100 years. Until recently, the demand for reparations fell on deaf ears. But in the past five years, the idea of reparations has picked up steam—propelled forward, as I argued in an earlier column, by the recent success of claims by Holocaust survivors.

Just this summer, a $6 billion Holocaust Slave Labor settlement was approved, funded jointly by the German government and a consortium of German and American corporations.

The European governments and companies had been advised that it made sense to settle the Holocaust claims because the Holocaust was a unique event, and everyone would be better off if the suits were not allowed to drag on. Yet many European observers worried that, instead of buying "legal security" against future litigation, the settlements would open the door to even more litigation based on even more distant historical wrongs.

It looks like the Europeans may have been right: On Friday the New York Times reported that a group called the "Herero People's Reparations Corporation" had filed a class-action lawsuit in Washington D.C. against three German companies, alleging that they were responsible for the "enslavement and genocidal destruction" of the Herero tribe in the early 20^th Century when Germany colonized Namibia.

Careful Negotiation of the U.N. Conference's "Apology" For Slavery

Due to the specter of current and future reparation demands, the nations of the European Union and the United States were very concerned, going into the U.N. World Conference, about the tenor and content of any discussion of the legacy of the trans-Atlantic slave trade. They wanted to avoid a scenario where such discussion could be used to fuel more Holocaust-style litigation, leading to more multi-billion dollar settlements.

Once the United States quit the conference, the EU was left alone to protect its interests.

This explains, at least at a superficial level, why it took nine days and a last-minute frenzy of negotiation to produce the "apology" was issued Sunday morning in South Africa.

The interests of the EU also go a long way towards explaining the way in which the slavery statement was phrased. It is a masterful piece of legal drafting — but it is not an apology at all. It "acknowledges" that slavery, "including the trans-Atlantic slave trade" were "appalling tragedies." Yet it does not say who was responsible for these tragedies — thus refraining from offering any confession of responsibility or blame that future plaintiffs seeking reparations could use in negotiation, court proceedings, or public statements.

Slavery: A Once and Future Crime?

Not only does the statement on slavery neglect to say who was responsible for slavery, it fails to stipulate exactly what slavery itself was, legally speaking. Thus, the text includes the following curious clause: the conferees "further acknowledge that slavery and the slave trade are a crime against humanity and should always have been so . . . ."

The statement clearly condemns contemporary slavery, an atrocity that apparently some Africans still commit against other Africans, labeling it "a crime against humanity." But it is strangely equivocal about the label one should give to slavery in the past, an atrocity committed by Europeans (and some Africans) against Africans.

Why didn't the drafters simply write "slavery and the slave trade are a crime against humanity and always were?" Why the "should always have been so"?

I can only speculate, but this is what I believe. The Europeans are terrified of being sued in the United States under a statute called the Alien Tort Claim Act ("ATCA"). It was the ATCA, after all, that gave the Holocaust suits much of their punch.

The ATCA allows anyone around the world to sue in an American court for a tort committed anywhere in the world — but only under very narrow circumstances. One of those circumstances is if the defendant injured the plaintiff while committing a crime against humanity. Acknowledging that past slavery was a crime against humanity, the Europeans may have feared, could be seen not just as an international acknowledgement of responsibility, but also as an acknowledgement of legal liability under the ATCA.

Ancestral versus Contemporary Wrongs

I think that the Europeans are trying to have it both ways — and to avoid an ATCA lawsuit in the bargain. They want to say that from where they sit today, as sophisticated lawyers who have studied the works of John Rawls and Jurgen Habermas, they can see why what their forebears did would be, if done today, a crime against humanity. But they do not want to say that what their forebears did, given the ignorance under which they labored, was a crime at the time.

The immorality of slavery was certainly debated among educated people in Europe by 1700. But the concept of the "crime against humanity" was not developed until after the Second World War. I am guessing that the Europeans want to distinguish between saying past slavery was immoral — a concept familiar to their forebears — and that it was a crime against humanity — a concept alien to their forebears in 1700.

In a sense, the use of the "should always have been so" implies something like this: It would have been nice if our ancestors were as enlightened as we are now, and had understood the concept of crimes against humanity. However, given that they didn't, we won't label their actions crimes against humanity, we will only say that had the world known then what we know now, their acts would have been crimes.

To a point, I can follow this somewhat distorted logic, but I have to admit that it just makes me want to throw my hands up in the air and scream. The whole point of the UN conference was to make political and moral progress towards healing the wounds of racism. I agree with those who argue that it is impossible to discuss racism today—especially in the United States—without talking about the legacy of the trans-Atlantic slave trade. There is something simply weird about allowing fears of civil litigation to derail what should be a political and moral discussion.

Is ATCA Liability A Real Risk?

I do not think that the Europeans are completely to blame for way in which they have chosen to discuss the history of the trans-Atlantic slave trade. The judges, lawyers and academics who have handled the most recent spate of ATCA suits in the United States have left behind a confusing record. Given recent events, a prudent lawyer employed by a European government might simply be doing her job if she were to advise the Europeans to adopt the tortured language they settled upon in Durban, rather than a more open, candid, and generous acknowledgement of responsibility and blame.

Would such a lawyer, though, be being overly conservative in the advice she gave? I am not sure. Had any European nation actually acknowledged that past slavery was a crime against humanity, could they really have been successfully sued in an American court under the ATCA? Again, the law is unclear in this area, but there are several reasons to think not.

To begin, the national governments themselves probably could not be sued under the ATCA for their activities relating to the trans-Atlantic slave trade. Another American statute, the Foreign Sovereign Immunities Act, generally immunizes foreign government from U.S. tort liability — with only limited exceptions, none of which seems applicable here.

What about an ATCA suit in which the defendants themselves are not the governments themselves, but their citizens or industries? It is not clear to me how plaintiffs would overcome the statue of limitations problem. The slavery at issue occurred hundreds of years ago. And even those courts who were most sympathetic to the plaintiffs in the slave labor suits against German industry found that the ATCA (which has no stated statute of limitation) should "borrow" its statute of limitations from the Torture Victim Protection Act of 1991, which sets its limitations period at ten years.

Recent events have given many observers—both in and outside the United States—the impression that the ATCA is, and should be, a far-reaching legal device designed to address political injustices for which there is no remedy. But that is not really the purpose or character of the ATCA. Nor is the ATCA likely to be transformed into a device for dispensing universal justice, unless American courts interpret it far more aggressively than they have until now.

In the meantime, fear of ATCA litigation should not be used by foreigners to avoid taking political and moral responsibility for their historical acts of injustice. The U.N. Conference should have dared to issue a true and honest apology for slavery, regardless of the legal risk.