Supplementary Reparations Testimonies
Reparations is the act or process of repairing or restoring. It is payment for an injury; redress for a wrong done. International law has identified the following criteria for reparations: Restitution, Compensation, Rehabilitation, Satisfaction, and Guarantees of Non-Repetition. Supplementing these fundamentals the international community has recognized as critical to achieve reparatory justice, I also submit that in the specific context of Black people in the United States, the quest for reparations must encompass the following four elements:
1) the formal acknowledgment of historical wrong and an official, unfettered apology for the dehumanization and atrocities of the enslavement era and its legacies,
2). the recognition that the injury continued throughout the years including the Jim Crow/apartheid eras with injurious inequitable policies and practices that still manifest today, in the areas of economics, education, health, punishment, culture and lack of the right to self-determination,
3) the commitment to redress by all culpable parties, including the federal government, state and local governments, private and corporate entities, industries, and academic and religious institutions which enjoyed unjust enrichment, and 4) the actual compensation, in whatever form or forms are agreed upon.
The harms from the enslavement era and post-slavery degradation were multi faceted, thus the remedy must be so as well. While cash payments/direct benefits are an important and necessary component of any claim for damages, a reparations settlement can be fashioned in as many ways as necessary to equitably address the countless manifestations of genocidal treatment sustained from chattel slavery and its continuing vestiges.
Some forms of community benefit redress for consideration could include land, housing, economic and community development, cessation of taxation, and the right to self-determination. Other amends may embrace repatriation resources, scholarships, truthful textbooks, and the erection of monuments and museums.
Additional considerations could include commutations and pardons for impacted prisoners from the COINTELPRO era, and repairing the harms from the War on Drugs which was targeted to Black communities. The bottom line, however, is that reparations not be a substitute for ordinary public policy. The intent must specifically and sufficiently be tied to reparative measures that acknowledge and remedy identified injustices rooted in the historical continuum of the enslavement era through today.
For us in the movement, we understand that reparations, under international norms and
law, means "full repair." International law professor, Nora Wittmann, in Slavery Reparations Time Is Now, shares with us the basis for full repair. The Permanent Court of International Justice laid out the “general and foundational rule” for reparations in the Chorzow Factory Case of 1928. In that ruling, the Court held “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 extent of “all consequences” was fleshed out as full reparation in the International Law Commission (2001) Draft Articles on Responsibility of States for International Wrongful Act. In Article 31. “… the responsible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”
The International Law Commission and other established international guidelines lay out what is considered full and comprehensive reparation.
These include:
1. Cessation, Assurances and Guarantees of Non-Repetition - a state responsible for
wrongfully injuring a people “is under an obligation to a) “cease the act if it is continuing,
b) offer appropriate assurances and guarantees of non-repetition…”
2. Restitution and Repatriation – “re-establish the situation which existed before the wrongful act was committed.” To restore the victim to the original situation before gross violations of international law occurred. How includes restoration of freedom, recognition of humanity, identity, culture, repatriation, livelihood and wealth.
3. Compensation - The injuring State is obligated to compensate for the damage, if damage is not made good by restitution. Compensation is “any financially assessable damage suffered…” Proper compensation is such that is “appropriate and proportional to the gravity of the violation and circumstances.”
4. Satisfaction – “as a “means” for reparations for moral damage, such as emotional injury, mental suffering, and injury to reputation.”
5. Rehabilitation - rehabilitation consist of mind, body, emotional and spirit healing - [of] the lasting effects of the trauma of enslavement and segregation.
From Adjoa Aiyetoro: International and Domestic Standards for Reparations for Violations of Rights of a Group Based on the Group’s Identity Including a critique of Chair Moore’s March 29, 2022 slide presentation on eligibility by Adjoa A. Aiyetoro, J.D. Submitted to California Reparations Task Force created pursuant to AB-3121- May 26, 2022
International Standard for Reparations The international standards for providing reparations gleaned from United Nations resolutions and reparations protocols established by a number of countries that have developed a reparatory program for violations of human and civil rights similarly show that there is no standard for providing reparations based on lineage. The U.N. documents do not establish a lineage standard There is also no such “standard” in the reparations protocols of individual countries, although a minority provide reparations to descendants. The standard is that reparations are provided to those who have suffered violations of human rights because of their group identity, primarily although not exclusively at the hands of governments. Indeed, the U.N. documents that focus on historic violations of human rights, such as slavery, focus more on States (countries) developing reparations programs for the continuing legacy of racism that flows from slavery.
World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerances (WCAR): Declaration and Programme of Action
➢ There is no lineage-based requirement for reparations in the WCAR Declaration and Programme of Action. The documents speak to reparations for victims of historic injustices including slavery with a primary focus on taking “appropriate and effective measures to halt and reverse the lasting consequences of these practices”.
➢ The WCAR documents acknowledge that racism and other violations of human and civil rights flow from the historic injustice of slavery and, therefore, reparations should address that legacy. Reparations in these documents are for the racial group that was victimized by slavery in a State (country), whether or not recipients are direct descendants of those enslaved. The documents focus on the injuries to the group that flow from the legacy of slavery.
● Resolution adopted by the General Assembly on 16 December 2005 60/147. Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
➢ The resolution identifies the longstanding commitment of the United Nations and international bodies to a right to a remedy and reparations. It indicates that these rights are grounded in the Universal Declaration of Human Rights as well as other international resolutions and statutes.
➢ The resolution indicates that victims should receive full reparations, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
➢ It recommends that the remedy/reparations should be awarded to the victim of the crime noting that the “contemporary forms of victimization … while essentially against persons, may also be directed against groups.”
➢ It defines victims as direct victims, immediate family and dependents and persons who have suffered harm in intervening to assist victims.
➢ There is no lineage definition of victim except in a very narrow way – to family and dependents – not descendants.
● Elimination of racism, racial discrimination, xenophobia and related intolerance: comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action, Contemporary forms of racism, racial discrimination, xenophobia and racial intolerance, United Nations General Assembly Resolution 73/262, Seventyfourth Session, 21 August 2019.
➢ This document is the report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Tendayi Achiume. It “addresses the human rights obligations of Member States in relation to reparations for racial discrimination rooted in slavery and colonialism.” It reaches the following conclusion based on the Special Rapporteur’s study and research:
❖ Reparations must address the contemporary, racially discriminatory effects of structures of inequality and subordination that flow from slavery.
❖ Reparations concerns both our past and our present. It is not just about individual wrongful acts. The human rights violations of slavery implicate the entire legal, economic, political and social structures that enabled slavery and which continue to sustain its legacy of racial subordination – anti-Blackness.
❖ Recommends a structural approach to providing reparations due to slavery’s creation of structures that continue to harm those in the group that were victimized by slavery, not just descendants of enslaved Africans, but African Americans, as AB-3121 indicates.
❖ Slavery was a dehumanization of persons on the basis of “race” - a social construct that shapes access to fundamental human rights.
❖ Victims of the human rights violations of slavery included victims of its legacy and all have the right to full reparations:
✓ Restitution – returning to pre-violation status
✓ Compensation – value of restitution if restitution not possible
✓ Satisfaction – includes acknowledgment, expression of regret, prevention measures to promote non-repetition.
✓ Complex reparations programs (providing both individual and collective forms of material reparations and symbolic measures) may better suit the needs of victims both direct victims and the targeted group of victims.
✓ Providing reparations for certain members of the group, for example, African American descendants of enslaved Africans, and not all members of the group, for example, African Americans, whose harm stems from the same violations of human rights and international law, ensures there will be ongoing calls for reparations. Restricting reparations to only one sector of the African American community that has been harmed by slavery and its ongoing legacy also fails to address the stigmatization of African Americans that is borne of enslavement and may in fact increase it.
Thank you for having me. It is an honor to speak before this historic task force.
My name is Jessica Ann Mitchell Aiwuyor; I am a descendant of Africans that were enslaved in Georgia and South Carolina. The oldest known ancestor on my maternal side is John Hamilton, born in 1853, and his wife Delaney, born in 1857, both designated as “Mulattos” in the 1880 U.S. Census and “Black” in later census records. Their granddaughter Flossie Hamilton is my maternal great-grandmother. When she married my great-grandfather George Wilder, slavery had been abolished. However, like many other African Americans living in the South, Flossie and George were not allowed to live freely due to the oppressive system of sharecropping that made many Black families indebted and criminalized for seeking to leave. So they fled in the middle of the night with their children to Augusta, Georgia, where most of my maternal family resides today.
Flossie and George are not distant relatives that I learned about through other people. I spent time with them growing up as a young child. Though decades removed from the plantation, George still feared that white men were coming to get him. Though he was free, my great grandfather never fully felt or lived freedom, constantly experiencing post-traumatic stress, which passed down to this family as epigenetic injury.
I bring up their story because it highlights two significant factors of importance concerning the community of eligibility: lineage and harms. For reparative justice, both lineage and harms should be considered, with special prioritization towards harms-based reparations.
Concerning Lineage and Special Consideration to Direct Descendants
Lineage is important to reparations discourse because our lineage was subjected to ongoing terror and systemic oppression. However, the concept of lineage should not be limited to the system of chattel slavery. This limited description minimizes and or erases the historical, ethnic, and cultural identities of both our ancestors and ourselves, which is essential for understanding and identifying the harmed communities. African Americans are a mixture of descendants of various African ethnic groups. Over time, with shared experiences, cultural fusion, and combined progeny, African Americans became an ethnic group through the process of ethnogenesis. And we are also part of a larger ethnic identity consisting of the greater African Diaspora with other Africans that endured the Trans Atlantic Slave Trade and merged identities in the Western World also through ethnogenesis.
These expansive ethnic identities, though more recently affirmed and identified, emerged before the formation of the United States and continued forming following the construction of the United States (as various African ethnic groups continued combining and creating communities during and after the Trans Atlantic Slave Trade). This expansive ethnic categorization is often referred to as African descendants, Afro-Descendants, and or People of African Descent, institutionalized and officially recognized by the United Nations. The Durban Declaration and Programme of Action adopted at the 2001 World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, and ongoing Working Group of Experts on People of African Descent.
Understanding “People of African descent” as a special category and African Americans as an ethnic group among this category of Trans Atlantic Slave Trade Survivors is a critical factor in better understanding lineage and how to navigate potential issues concerning “race-based” and “race-neutral” legislation.
Concerning the Community of Eligibility, Black Immigrants, and Black American Migrants
Reparations should be implemented through a streamlined non-invasive approach that gives as many African Americans the opportunity to receive remedies as possible. Strict mechanisms of approval that would force families to take DNA tests and endure extensive genealogical background searches should be avoided. This would be an invasive, time-consuming, and costly strategy that potentially excludes African American families that refuse to submit DNA or refuse genealogical background searches. Furthermore, the assertion that everyone can or will trace this ancestry (independently) does not account for accessibility and or disability issues.
Many who disagree with limiting eligibility to the enslavement era do not disagree in order to dilute or harm African American justice claims but to protect it. Specifically, in the case of Black Californians, much attention has been given to the question of Black immigrants, and not enough attention has been given to descendants of Black American migrants from Southern States. The majority of Black immigrants arrived in California within the last 50-30 years. Additionally, according to State Immigration Data Profiles (2019) of the Migrant Policy Institute, 26.7% of Californians are foreign born with just 1.8% being Black (less than 2%). The vast majority of the Black immigrant population (78%) in California arrived in the last 30 years; only 22% have lived in California for more than 30 years. They are therefore easily distinguishable regarding qualifications for reparations for chattel slavery if California were to take a tiered harms-based approach.
On the other hand, Black American Californians face their own uphill battle concerning limiting eligibility to chattel slavery. Many Black Americans in California are, in fact, not descendants of persons enslaved within the state of California. Instead, many are descendants of persons enslaved in Southern states of Texas, Georgia, Arkansas, Louisiana, etc. Their families later migrated to California during the Great Migration from 1910 to 1970, especially during and following World War II. Suppose eligibility was limited only to the enslavement era. In that case, the State of California could likely decide only to provide reparations for Black Californians that can provide proof of descendancy from persons enslaved within the state. This would be the next logical step and not a far-fetched scenario. In this case, many Black American Californians, would not qualify for reparations in California.
However, by recognizing reparations as inclusive of the era of enslavement, the U.S. Apartheid System, and ongoing systemic racism, African American Californians would be safely protected and covered under reparations initiatives and eligibility claims.
Concerning Harms
In 1951, the Civil Rights Congress published, We Charge Genocide: The Historic Petition to the United Nations for Relief from a Crime of The United States against the Negro People asserting that the United States violated the U.N. Genocide Convention. Current-day reparations advocates like Nkechi Taifa have also declared that the harms endured by People of African descent in the United States fit the definition of genocide according to the International Convention on the Prevention and Punishment of the Crime of Genocide. Taifa even coined the term “‘institutional genocide’ as a framework through which to analyze the evolving jurisprudence of international human rights doctrine to selected conditions impacting Black people in the United States.” World Conference Against Racism declared slavery and the slave trade “crimes against humanity.”
The harms that our ancestors experienced and their descendants experience are more than about lost wages or the racial wealth gap; they care about our civil and human rights. They are about the vestiges of historic government-sanctioned violence against People of African descent and systemic oppression that, after chattel slavery, also made us victims of mass incarceration and prevented us from access to housing, healthcare, education, and banking. Thus, to fully close the door on these horrific chapters in history, reparations should not be limited to the era of enslavement, or eligibility should not be limited to proof of lineage during the period of enslavement. It must also include the U.S. Apartheid System and ongoing systemic racism. The eligibility for harms against people of African descent in the United States was ongoing and inclusive. Thus, the remedies must be ongoing inclusive, or we risk extending the injuries instead of repairing them.
Recommended reading:
The National African American Reparations Commission’s Preliminary 10 Point Reparations Program:
https://reparationscomm.org/reparations-plan/
CARICOM Ten-Point Plan for Reparatory Justice
https://caricom.org/caricom-ten-point-plan-for-reparatory-justice/
Racism in the U.S. Criminal Justice System: Institutionalized Genocide? by Nkechi Taifa
https://www.acslaw.org/wp-content/uploads/2018/04/Racism_in_the_U.S._Criminal_Justice_System.pdf
The Harm Is to Our Genes: Transgenerational Epigenetic Inheritance and Systemic Racism in America
https://www.ncobraonline.org/harmreport/
Column: They say California stole their ancestors’ land. But do they qualify for reparations?https://www.latimes.com/california/story/2022-03-09/california-reparations-task-force-debates-eligibility-black-people
Slavery in a Free State: The Case of California
https://daily.jstor.org/slavery-in-a-free-state-the-case-of-california/
African Americans in California: A Brief Historiography
https://www.jstor.org/stable/25177592?read-now=1&refreqid=excelsior%3Aa614a9a92adb2af4c06bf13da7e1c035&seq=2
World Conference Against Racism: New Avenues for Slavery Reparations?
https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1673&context=vjtl
We Charge Genocide: The Historic Petition to the United Nations for Relief From a Crime of The United States Government Against the Negro People (1951)
https://depts.washington.edu/moves/images/cp/1.%20We%20Charge%20Genocide%201-28.pdf
World Conference against Racism, Racial Discrimination, Xenophobia and
Related Intolerance
https://www.un.org/WCAR/durban.pdf
California Immigrant Data Portal Recency of Arrival
https://immigrantdataca.org/indicators/recency-of-arrival#/?breakdown=3&geo=02000000000006000
California Immigrant Data Portal:
https://immigrantdataca.org/indicators/foreign-born#/
Migration Policy Institute: State Immigration Data Profiles
https://www.migrationpolicy.org/data/state-profiles/state/demographics/CA