Improving Existing Legal Pathways to Reparative Justice: A Question of Morality, Not Feasibility

The current world order is deeply affected by both modern and historical social injustices. The genocide of Native Americans, the transatlantic slave trade, oppressive colonial periods, climate change impacting low-emitting nations, and war crimes during conflict are just a few examples of injustices that are visible and well-known. Too often, however, the impacts of injustices both temporally near and far are felt in perpetuity because they are never remedied. Like a knife pulled from a wound which is then left unattended to, active violence is often followed by inaction. This inaction creates conditions which facilitate active violence being followed by a more pervasive form of secondary structural violence. For example, following the end of slavery in the United States, Black Americans were subjected to outwardly racist laws and regulations such as Jim Crow Laws, redlining, and discrimination in public health infrastructure. These less visible, more structural injustices inhibited Black citizens’ ability to accumulate generational wealth, creating deep and lasting inequality. There also exists a myriad of lesser known instances in which surreptitious violence follows the initial, active, violence. In the Democratic Republic of the Congo, for example, a period of extractive resource depletion ensued following the egregiously violent colonial period in which King Leopold II of Belgium oversaw the murder of millions of native Congolese people [1]. The historical pattern of active violence preceding secondary structural violence indicates the cyclical nature of social injustice, thus, there is an urgent need for direct action to meaningfully intervene following periods of active violence in order to impede these cycles.

In response to this need, theorists and activists have developed reparative justice — deeply interconnected to restorative justice — frameworks that emphasize the need for acknowledging the damages caused and listening to affected communities about their ideal reparative payments and actions [2,3]. The Zehr Institute for Restorative Justice highlights that as a concept, “restorative justice emerged in the 1970s as an effort to correct some of the weaknesses of the western legal system while building on its strengths,” and that “restorative justice focuses on repairing the harm of crime and engaging individuals and community members in the process.”[4] A major implication of these frameworks is forging a legal pathway to achieving reparations. Time for Reparations by Jaqueline Bhabha highlights the wide-ranging scholarship available analyzing the many organized calls for reparations which have been made throughout modern history [5]. Differing from just damages collected after one individual has been wronged, the American Bar Association states that “in international law, [reparation] means that when a country has committed an international crime such as the invasion of another country or the genocide of a people, it must make amends to the victims, including the descendants of the original victims who still suffer from the consequences of the crime.”[6] The success of reparations, therefore, is predicated on acknowledging and ameliorating the harm done to people who have faced violence. In response to dialogues about reparations, major global actors — whether because they truly question their nations’ ability to enact reparations, or because they are afraid of the total costs that will accumulate if reparations are fully socially legitimized — have denounced reparations on the grounds of their feasibility. For example, the former United States President Donald Trump stated “I just don’t see it happening,” in response to questions about reparations for slavery, as he saw the idea as being too “unusual” to gain political traction [7]. Additionally, former Prime Minister of the UK, Boris Johnson, rejected reparations to poorer nations for climate change on the basis that the UK could not “afford” reparations [8].

However, these world leaders’ sentiments contradict historical precedence, as reparations have been a widely used legal tactic. This paper aims to shift legal discourse from focusing on the feasibility of reparations to focusing on executing reparations most successfully. Reparative justice has been used before, and should be used again, but society must focus on committing to reparative justice that fully acknowledges and ameliorates harm. Seeing the historical employment of reparative justice ought to push citizens to stop asking whether reparations are possible, and start asking how to better achieve reparative justice. History indicates that reparative justice attempts have not been explicitly effective because they have systematically underpaid their recipients. Through the courts, legislation, international agreements, and new iterations of the three, reparations have been utilized time and again; legal pathways to reparations have been forged and legitimized. However, these legally-awarded reparations have not always been successful in reducing secondary structural violence following active violence because the reparations have often not been sufficiently substantial. Historical analysis highlights that the public narrative on legal pathways to reparations must shift from a conversation about feasibility to a conversation about how to make reparations most effective, as reparative justice has been attempted through courts, legislators, and treaties, but the efficacy of these reparations has been marred by systematic underpayment of victims of violence.

Four legal pathways have already been historically forged for achieving reparations for harmed communities. The first pathway is through the courts; communities of people have sued national governments for the harms they have committed, and won settlements that included reparative payments. The second pathway is through legislation; through national and subnational legislation, policymakers have voted to admit guilt for violence committed against communities within their jurisdiction, and set up mechanisms for reparative justice payments through laws. The third pathway is through international treaties; nations have made agreements with each other to admit and address wrongdoing by one nation towards another entire nation. Finally, new imaginaries and combinations of each of the previous three pathways have been theorized, such as subnational communities suing their own nation’s government through international courts. The following analysis is by no means an exhaustive list of all cases in which reparations have been achieved legally, but rather a representative sample of cases that shed light on reparative justice as a legal framework. Additionally, although the analysis is largely categorized into neat pathways: the courts, sub-national and national law, international treaties, and new ideas, it would be prudent to note that many of the following cases overlap in their pathways. For example, reparations for Japanese Americans interned during World War II were considered in several courts of law (including the Supreme Court) before the Civil Rights Act of 1988 provided reparations [9]. Additionally, it is worth highlighting that most reparations campaigns have not come from the free will of those that have perpetrated the violence. Rather, reparations are often fought for by steadfast community groups and activists that highlight their stories and push the public to hold those who perpetuate injustices accountable. These activists and community organizations serve as the current impetus for legal pathways to be set into motion. Whether a legal mechanism could be imagined to initiate the process of reparative justice is an important question, but the laudable efforts of those who publicly fight for injustices to be put on the legal agenda ought to be recognized.

Beginning with an analysis of reparations won in courts globally, reparative justice has been recognized as a legitimate claim in many courts. In a landmark UK case in 2013, a coalition of Mau Mau, a group that supported the movement for Kenyan independence from British Colonialism in the 1950s, sued the British government for the crimes committed against them during the “emergency” period [10]. During this period, Kikuyu citizens of Kenya organized to protest the land seizures and oppressive government structure of the extractive British colonizers. In response, the colonial government declared a state of emergency and sent British troops to Kenya to quell the rebellion [11]. During their counterinsurgency, British troops organized a system of concentration camps rife with torture, brainwashing, and extrajudicial killings [12]. Kenya won its independence in 1963 and the concentration camps were subsequently dissolved. However, the British government was not held accountable for its crimes until a court case was filed in 2009. In this case, Leigh Day, a British law firm, represented elderly claimants in court that had been imprisoned in the concentration camps [13]. While the British government initially responded to the suit by claiming that liability lay on the new Kenyan government (as were the terms of independence) and that the statute of limitations had been breached for the crimes, the High Court of London ultimately denied these claims and took the case [14]. By 2013, the UK government settled on a 3-part reparations deal. As part of the deal, they would pay £19.9 million in reparations to the approximately 5,228 claimants in the lawsuit, issue a formal apology, and fund the construction of a permanent memorial for Mau Mau veterans at one of the former Mau Mau concentration camps [15,16].

Despite the historic and precedent setting nature of the case, the damages awarded were not substantial enough to ameliorate the deep and lasting damages caused by the colonial government. While £19.9 million is no meager sum, the amount was divided between several thousand claimants, and many died by the time the case was heard in court. The colonial government, and specifically the concentration camp system, caused life-altering abuse that included castrations, rapes, and disabling beatings [17]. Although the settlement was symbolic in nature, the £3,000 awarded to each claimant is not enough to fully repair what was lost during the emergency period or even bring claimants out of the poverty that many still live in following their internment. Additionally, thousands of claimants that were harmed in the concentration camps, but were not included in the original settlement still await their day in court. In response to this, the UK government has refused to accept new cases, still claiming that they are not truly liable for the abuse that occurred [18]. In this case, in order to address and ameliorate the harm perpetuated against the Mau Mau victims, the UK government could have agreed to pay individual claimants an amount commensurable with the physical and mental distress they faced, as opposed to a lump sum awarded for the entire class action suit. Additionally, the symbolic and historically important nature of a ruling such as in the Mau Mau case is completely overridden by a policy of rejecting future claims. While the Mau Mau case indicates that reparations have been won through the courts before, it also highlights the harms that are left unaddressed by insufficient lump-sum payments and through rejection by the perpetrating government to continually hear cases and allow all claimants an opportunity to be heard. In order to better reparative justice, the Mau Mau case makes clear that direct and commensurate payments to the harm committed should be made, and this justice should not just be limited to the first claims made in order to truly ameliorate harms committed.

Moving from the courts to legislation, the Indian Claims Commission Act, passed by the United States government in 1946, highlights once again that law has been utilized in the past as a tool of reparative justice, emphasizing that the nuance of the matter lies in increasing the efficacy, not the possibility of this project. Since the United States’s inception, indigenous people have been displaced, incarcerated, and killed as a result of, or with the support of, state actors. Following years of activism and legal justice attempts by Native people, the US congress passed the Indian Claims Commission Act. The Act established a commission that aimed to address claims that “represent attempts by Indian tribes to obtain redress for any failure of the Government to complete payments for lands ceded under treaty, for the acquisition of land at an unconscionably low price or for other failure to comply with a treaty or legislative action regarding Indian lands that grew out of the westward expansion of the United States.”[19] The United States government granted tens of millions of dollars in payouts to Native nations on a claim-by-claim basis — indicating that not only do reparative justice legislative paths exist, but ones also exist with systematic reparations-delivering functionalities [20].

However, the release of the funds was questioned by many Native nations due to its patronizing manner as the nations were not trusted to allocate the money within their tribes themselves. Instead, it was held in trust for the tribes in federal government banks [21]. While in trust, much of the payments for Native Nations was mismanaged, leading to still-occurring lawsuits for access to the funds awarded to Native Peoples’ families [22]. This aspect of the program hindered Native populations from being able to meaningfully benefit from the payouts, or see the payouts at all— obviously hindering any actual ability of the Commission to ameliorate the harms committed against Native peoples in the United States. This case brings to light the importance of delivering payments directly to claimants in order to design effective reparative schemes. Additionally, many nations never had their claims heard by the Commission before it expired and closed, or their claims were denied by the Commission, leading to unresolved harm [23]. A thread emerges similar to the Mau Mau case in which some of those harmed, not all of those harmed, had an opportunity to have their cases heard; highlighting a recurring fault in reparative schemes in which a too-short temporal limit is placed on the period in which the perpetrator will accept responsibility for their violence. In order to effectively deal reparations, nations need to be willing to accept responsibility for their violence in perpetuity so as to not exclude entire subpopulations of harmed communities from accessing justice.

Further, agreements between nations have been established as a means of achieving justice. A high-profile example of this practice is The Federal Republic of Germany’s (FRG) commitment to pay reparations for Holocaust survivors through the Luxembourg Agreements with the state of Israel. The Luxembourg Agreements resulted in the FRG paying approximately $714 million in goods and services to the state of Israel and a commitment that the FRG would pass legislation to pay reparations to individual survivors [24]. This legislation took the form of the Federal Compensation Act and the Federal Restitution Law which provided payment to individuals in the form of a pension for injury, damage to professional growth and property, and restrictions on freedom among other wrongdoings committed by the Nazis [25]. Additionally, modern-day Germany has initiated commemorative and educational programs about the Holocaust through a series of laws [26]. Although reparative justice for Holocaust survivors began with international agreements, a top-down approach of the international agreement delegating responsibilities to national governments to enact their own legislation appeared to push the FRG (and later Germany) to make adequate payments. International treaties and laws are often unenforceable, so in order to effectively implement a reparative justice program through international agreements, national legislation ought to be passed in tandem. This example highlights the risk of undercompensating survivors without national enforcement mechanisms to support international agreements.

Finally, reparative justice legal pathways that aim to redress past failures and improve the tangible efficacy of reparations are being actively theorized today. Specifically, the American Bar Association (ABA) has put forth ideologies for reparations to Africans and African Americans for slavery and racial discrimination through a mix of international and federal law. In the ABA’s Human Rights Magazine, Anthony Gifford posits that through a claim of a Crime Against Humanity in the International Criminal Court, those harmed by slavery could sue those that benefited from it [27]. Gifford explains that a representative body on behalf of all Africans, in Africa, and the Diaspora could bring a claim against the “Governments of those Countries that Promoted and Were Enriched by the Slave Trade and the Institution of Slavery,” under international law a defined by the Permanent Court of International Justice and the Nuremburg Tribunal’s definition of a Crime Against Humanity [28]. This theorized claim, which would include a myriad of different nations (not just a bilateral treaty or international agreement), indicates a potential geographic expansion of historical conceptions of reparations that could occur in modern times. On a different vein, at the 2022 ABA Annual meeting, lawyers Sarah Moore Johnson and Raymond C. Odom suggest that the widening U.S. racial wealth gap should be proof enough that racial reparations need to be made [29]. They posit that operationally, the funds for these reparations could be raised through 501(c)(40) reparations organizations that incentivize donations to reparations funds from wealthy donors looking to contribute, and through estate taxes on families passing down generational wealth [30]. This framework indicates a departure from strictly government-issued reparations, illuminating the potential for government-facilitated reparations which would allow private citizens and institutions to contribute to reparative justice. This idea may welcome more transparency or society-wide involvement in the reparative justice process. Both of these new imaginaries for reparations indicate how relevant the question of reparations remains today, and how important an orientation towards effectiveness will be in aiding in the success of these potentials.

World leaders and everyday citizens can and should move away from a dialogue that asks whether legal pathways to reparations exist, and instead work toward a critical analysis of how to best carry out reparations. In doing so, the harm caused to people that have been systematically marginalized can finally begin to be ameliorated. However, without effective organization of reparative justice schemes, these schemes can act as a means of absolving perpetrators of violence of their guilt, without truly addressing harm. In order to focus on addressing harm as opposed to absolving guilt, reparative justice programs must be designed to keep the shortcomings of past reparative justice attempts in mind. The shortcomings of past reparative justice court cases underscore the benefits of reparative justice schemes that deal out individual payments as opposed to lump sums, and that do not restrict perpetrator responsibility to a certain time period or sub-group of the affected community. Additionally, the ineffectiveness of legislative reparative schemes indicates a need for direct payments to claimants and allowing claimants autonomy to distribute rewards. Finally, international treaties indicate that agreements between nations should be predicated on national legislation being passed in response to these treaties, to hold perpetrator governments accountable for following through with their commitments. The ongoing development of reparations theory illuminates that the conversation about effective reparations schemes is one that merits attention; and one that cannot be overshadowed by claims of infeasibility. To ground this analysis in the important work that continues today, look no further than H.R. 40, a bill introduced to the United States Congress calling for the federal government to create a commission that would investigate reparations for slavery and racial discrimination in the United States [31]. However, H.R. 40 has been ignored and denounced on claims of infeasibility and radicalism that are clearly incongruous with the global history of reparations accounted in this analysis [32,33]. In this specific case, to shift the focus from feasibility to efficacy in real time, United States constituents can call their representatives in Congress and ask that they support H.R. 40. However, more broadly, global citizens can critically analyze long lasting impacts of active and secondary structural violence, and push all legal systems to be utilized to offer the substantive reparative justice that past legal practitioners have laid the groundwork for.

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2. Perry, Rashawn Ray and Andre M. “Why We Need Reparations for Black Americans.” Brookings (blog), April 15, 2020. Accessed December 14, 2022. https://www.brookings.edu/policy2020/bigideas/why-we-need-reparations-for-black-americans/.

3. Zehr, Howard. “Restorative Justice? What’s That?” Zehr Institute. Accessed December 14, 2022. https://zehr-institute.org/what-is-rj/.

4. Ibid.

5. Bhabha, Jacqueline, Matache, Margareta and Elkins, Caroline. Time for Reparations: A Global Perspective. Philadelphia: University of Pennsylvania Press, 2021. https://doi-org.ezp-prod1.hul.harvard.edu/10.9783/9780812299915

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8. Adu, Aletha. “Cop27: Sunak Says It Is ‘Morally Right’ for UK to Honour Climate Pledges.” The Guardian, November 7, 2022, sec. Environment. Accessed December 13, 2022. https://www.theguardian.com/environment/2022/nov/07/cop27-sunak-says-it-is-morally-right-for-uk-to-honour-climate-pledges.

9. “Compensation and Reparations for the Evacuation, Relocation, and Internment Index (Redress Case Files),” United States National Archives. August 15, 2016. Accessed December 13, 2022. https://www.archives.gov/research/japanese-americans/redress.

10. Rice, Xan. “Mau Mau Veterans Sue for Colonial Abuses.” The Guardian, May 10, 2009, sec. World news. Accessed 13 December 2022. https://www.theguardian.com/world/2009/may/10/kenya-colonial-abuses.

11. “Mau Mau Uprising: Bloody History of Kenya Conflict,” BBC News. April 7, 2011, sec. UK. Unknown author, accessed 13 December 2022, https://www.bbc.com/news/uk-12997138.

12. Ibid.

13. Wessley, Alex. “The Mau Mau Case” Leigh Day. Accessed December 13, 2022. https://www.leighday.co.uk/latest-updates/blog/2017-blogs/the-mau-mau-case-five-years-on/.

14. Ibid.

15. Ibid.

16. “Mau Mau Torture Victims to Receive Compensation - Hague,” BBC News. June 5, 2013, sec. UK. Unknown author, accessed 13 December 2022. https://www.bbc.com/news/uk-22790037.

17. “Mau Mau Uprising: Bloody History of Kenya Conflict,” BBC News. April 7, 2011, sec. UK. Unknown author, accessed 13 December 2022. https://www.bbc.com/news/uk-12997138.

18. “UK to Compensate Kenya’s Mau Mau Torture Victims | Mau Mau” The Guardian. Accessed December 13, 2022. Unknown author, accessed 13 December 2022. https://www.theguardian.com/world/2013/jun/06/uk-compensate-kenya-mau-mau-torture.

19. “Indian Claims Commission Granted More Than $45 Million During 1969 | Indian Affairs,” D.C. Bar. April 6, 1970. https://www.bia.gov/as-ia/opa/online-press-release/indian-claims-commission-granted-more-45-million-during-1969

20. Ibid.

21. Blaustein, Rich. “DC Bar - Indian Claims Commission Act at 75: A Look Back and a Look Forward.” D.C. Bar. Accessed December 14, 2022. https://www.dcbar.org/news-events/news/indian-claims-commission-act-at-75-a-look-back-and.

22. Ibid.

23. Ibid.

24. “The JUST Act Report: Germany.” The United States Department of State. Accessed December 13, 2022. https://www.state.gov/reports/just-act-report-to-congress/germany/.

25. Ibid.

26. Ibid.

27. Gifford, Anthony. “The Legal Basis of the Claim for Slavery Reparations” 2000.

28. Ibid.

29. “Slavery Reparation Proposals Spurred by Widening U.S. Wealth Gap,” American Bar Association. August 9, 2022. Unknown author, accessed 13 December 2022. https://www.americanbar.org/news/abanews/aba-news-archives/2022/08/slavery-reparations-proposals-spurred/.

30. Ibid.

31. Jackson Lee, Sheila. H.R.40 - 117th Congress (2021-2022): Commission to Study and Develop Reparation Proposals for African Americans Act (2021). http://www.congress.gov/.

32. Wall, Matt. “Reparations Legislation Advocates Push for New Government Commission, but Short on Specifics ” Fox News. Accessed December 13, 2022. https://www.foxnews.com/us/reparations-legislation-advocates-lack-specifics-support-government-commission.

33. Carlson, Tucker. “Tucker Carlson: What the Fight for Slavery Reparations Tells Us about Today’s Democratic Party” Fox News. Accessed December 13, 2022. https://www.foxnews.com/opinion/tucker-carlson-what-the-fight-for-slavery-reparations-tells-us-about-todays-democratic-party.