Stop the Maangamizi Campaign Briefing Note On UK Government Response to Written Question on the All Party Parliamentary Commission of Inquiry for Truth & Reparatory Justice (APPCITARJ) Asked by Baroness Bennett of Manor Castle, Green Party Life Peer [1]
This briefing, which has been shared with members of the Green Party, is our Stop the Maangamizi Campaign position informed by the ‘Law Repairs’ perspective of reparatory justice pertaining to the Law as Resistance strategy we utilise in our critical legal praxis. This comes from the school of jurisprudence to which our critical legal scholar-activists of the International Social Movement for Afrikan Reparations (ISMAR) belong and is also informed by a social movement-lawyering approach.
One definition of movement lawyering put forward by University of California legal expert Betty Hung is a practice which “supports and advances social movements as the building and exercise of collective power, led by the most directly impacted, to achieve systemic, institutional and cultural change”.[2] Movement lawyers maintain a sustained commitment to social movement goals and collaborate with mobilised social movement groups and organizations over time to achieve them; in ways which support grassroots organising and help build the power of the people to bring about forms of redress and solutions to the issues and challenges they face.
The SMWeCGEC was consulted on the following question pertaining to the establishment of the APPCITARJ asked by Baroness Bennett (Green Party) in the House of Lords.
United Nations: Peace Keeping Operations – Question for Foreign, Commonwealth and Development Office, UIN HL10267, tabled on 12 November 2020
Re: Response from Lord Ahmad of Wimbledon
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’[3] (hereafter referred to as the Basic Principles) has alternatively been referred to as the UN Framework on Reparations in Green Party documentation. The Basic Principles encapsulate international best-practice standards on reparations at domestic and regional levels. Both international humanitarian law and human rights law are the product of treaties and customary international law, as well as of general principles of law – all of which are sources of international law.
The preamble to The Basic Principles state:
Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms.
It is the view of the Stop the Maangamizi Campaign that Afrikan Heritage Communities have been and continue to be victimised by the legacies of Afrikan enslavement, colonisation and neocolonialism and recognise the position of Human Rights Watch (HRW) in its ‘Approach To Reparations’ (2001) that:
…The descendants of a victim of human rights abuse should also be able to pursue claims of reparations. That is, the right to reparations should not be extinguished with the death of the victim but can be pursued by his or her heirs.”
Accordingly, the Stop the Maangamizi Campaign has developed its campaign for accountability cognisant of the HRW Position:
For these practical reasons, when addressing relatively old wrongs, we would not base claims of reparations on the past abuse itself but on its contemporary effects. That is, we would focus on people who can reasonably claim that today they personally suffer the effects of past human rights violations through continuing economic or social deprivation.
HRW go on to state:
A group’s ability to identify a wrong to its ancestors would not in itself be enough to claim reparations (although under traditional human rights law its members could pursue claims for abuses against themselves). The group would also have to show continuing harm to itself from those past abuses. This focus on contemporary effects, in our view, provides a firmer and more appealing moral footing for discussions about reparations for old abuses…this approach concentrates on those people who continue to be victimized by past wrongs and seeks to end their victimization.
Re: Lord Ahmad’s statement:
As implied by its title, this addresses reparation for individuals for gross or serious violations of human rights law or international humanitarian law.
The preamble to the Basic Principles also state:
Noting that contemporary forms of victimization, while essentially directed against persons, may nevertheless also be directed against groups of persons who are targeted collectively.
Art. 8 of The Basic Principles state:
Victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
The Basic Principles therefore relate to individual and collective victims in that the notion of ‘victim’ includes individual (direct and indirect victims), their families and communities.
Whilst a significant amount of international human rights bodies have utilised reparations jurisprudence pertaining to victimisation directed at individuals, it is also recognised that victimisation may be directed against groups of persons who are targeted collectively and therefore have the right to seek collective redress. Moreover, International law recognises the rights of individuals to exercise certain rights in community with others.
A different concept from that of rights of ‘groups as collective entities’ are the rights of ‘groups of individuals’, such as in the case of international treaties and declarations concerning ‘minorities’. Art. 3(1) of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities [4] states that: “Persons belonging to minorities may exercise their rights, including those set forth in the present Declaration, individually as well as in community with other members of their group, without any discrimination”.
Similarly, Art. 3(2) of the European Framework Convention for the Protection of Minorities [5] states: “Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others”. Finally, Art. 27 of the International Covenant on Civil and Political Rights speaks of the right of persons belonging to minorities to exercise their rights “in community with the other members of their group”.[6]
The dangers posed by the weaknesses of absolutizing the understanding of victims as merely individuals are raised in the following observations in the Practitioners Guide for ‘The Right to a Remedy and Reparation for Gross Human Rights Violations’:
However, it should be clarified that not all international or regional human rights systems have exactly equivalent definitions of the term victim of human rights violations and persons entitled to reparation. Indeed, in some cases, while a person is not considered a victim, he or she may nevertheless have suffered harm and be entitled to reparation. Also, persons who have suffered harm may be considered victims in one system while not in another, but be entitled to reparation in both. In other words: the notion of victim may be narrower than the notion of persons entitled to reparation. This is reflected in Article 41 ECHR and Article 63 ACHR, which, for the purpose of reparation, do not speak of ‘victims’ with regard to this particular obligation of reparation, but of ‘injured party’. The differentiation is not reflected in Principle 8 of the UN Principles on Reparation, which defines victims from the perspective of those entitled to reparation, thus adopting a wide definition of the term victim.[7]
On Retroactivity
Re: Lord Ahmad’s Statement:
These bodies of law are not retroactive.
Art. 6 & 7 of the Basic Principles state:
IV. Statutes of limitations
6. Where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law.
7. Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive.
The basis for the demand of the International Social Movement for Afrikan Reparations (ISMAR) for the establishment of the All-Party Parliamentary Commission of Inquiry for Truth & Reparatory Justice (APPCITARJ) [8] is because of crimes recognised under the Rome Statute of the International Criminal Court (which the UK Government signed on 30 November 1998); [9] such as the crime of genocide and crimes against humanity as articulated by the Stop the Maangamizi: We Charge Genocide/Ecocide! Campaign and its petition.[10]
Morally speaking, one cannot impose a statute of limitations on a claim for reparations when the British Government has impaired the ability of victimised Afrikan Heritage Communities to pursue a claim or when the said government continues to deny the claims and rights of Afrikan Heritage Communities to reparations. In this regard, the response received in 2018 by the Stop the Maangamizi Campaign [11] from Lord Ahmad, on behalf of the British Government (“We do not believe reparations are the answer”) is instructive here.
The fact of the matter is, irrespective of the intention of those framing international laws such as the Rome Statute of the International Criminal Court and negotiating UN agreements such as the Basic Principles, it is the right of all groups and communities to self-determinedly apply law in their own interests, in consonance with the best interests of all humanity.
The breaking of treaties and other agreements made by colonising authorities in various ways with Indigenous communities which trample upon the rights of these communities and violate law, order and justice as designed for themselves in exercise of their sovereign right to self-determination, must also be given recognition. Such long overdue recognition, in the light of cognitive justice, demands acceptance as legitimate parts of international law in all its forms, the self-designed systems of law, order and justice of Indigenous communities; meaning communities that have suffered colonisation and still have various forms of neocolonialism subjugating them, at present, to settler occupation, robbery of sovereignty and denial of their independent peoplehood. This is what we in the ISMAR regard as the ‘Law Repairs’ of holistic reparatory justice.
On Gross and Serious Violations
According to the Practitioners Guide for ‘The Right to a Remedy and Reparation for Gross Human Rights Violations’:
The Basic Principles do not define either ‘gross violations of international human rights law’ or ‘serious violations of international humanitarian law’. Although not formally defined in international law, ‘gross violations’ and ‘serious violations’ denote types of violations that affect, in qualitative and quantitative terms, the most basic rights of human beings, notably the right to life and the right to physical and moral integrity of the human person. It is generally assumed that genocide, slavery and slave trade, murder, enforced disappearances, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, deportation or forcible transfer of population, and systematic racial discrimination fall into this category. Deliberate and systematic deprivation of essential foodstuffs, essential primary health care or basic shelter and housing may also amount to gross violations of human rights. In international humanitarian law, ‘serious violations’ are to be distinguished from ‘grave breaches’. The latter refers to atrocious violations that are defined in international humanitarian law but only relating to international armed conflicts. The term ‘serious violations’ is referred to but not defined in international humanitarian law. It denotes severe violations that constitute crimes under international law, whether committed in international or non-international armed conflict. The acts and elements of ‘serious violations’ (along with ‘grave breaches’) are reflected in article 8 of the Rome Statute of the International Criminal Court under ‘war crimes’.[12]
It is also important to highlight the fact that these crimes against humanity, including crimes of genocide and ecocide, committed by state and corporate bodies of European imperialism were recognised as crimes not only by Afrikan people but also by peoples of conscience within European countries and their overseas settler colonial communities. In addition, these crimes were resisted. Such resistance resulted in mass movements, like the abolitionist and anti-colonial movements in Europe and other parts of the Global North in solidarity with and involving Indigenous and other communities of resistance throughout the world. That is why it is incorrect to say that such crimes against humanity represented the national will of peoples in Europe. It is noteworthy that this national will reflecting the conscience of the majority in these countries often denounced the genocide and ecocide crimes of the minority ruling classes who abused state power to perpetrate such crimes that stained the national honour of these countries as dissenting voices in these societies have always pointed out.
On the Human Rights Act
Re: Lord Ahmad’s Statement:
If a UK citizen’s rights are violated, they have recourse to remedy and reparation through the Human Rights Act 1998 (HRA), which gives further effect to the European Convention on Human Rights. In particular, section 8 HRA states that “In relation to any act (or proposed act) of a public authority which the court finds is unlawful, may grant such relief or remedy, or make such order within its powers as it considers just and appropriate”. There are no plans to establish an inquiry into section 8 HRA.
The Human Rights Act 1998 aims to “bring rights home”, so that Convention rights can be enforced in the UK courts rather than having to go to Strasbourg. However, narrow interpretations of the Human Rights Act which are in contravention of the letter and spirit of the Act itself, must not be used to defend the indefensible. What is being requested is for the establishment of the All-Party Parliamentary Commission of Inquiry for Truth & Reparatory Justice (APPCITARJ), not an inquiry into section 8 of the HRA.
The Stop the Maangamizi Campaign has done some thinking and undertaken consultations on what the terms of reference for the APPCITARJ could be; these are included in the ‘Backgrounder About The All-Party Parliamentary Commission of Inquiry for Truth & Reparatory Justice’.[13]
The Stop the Maangamizi Petition reiterates the point that the demand for the APPCITARJ is necessary “to advance the process of dialogue from the ground-upwards, with the British State and society on Reparatory Justice”.
Art. 11 of the Basic Principles explains:
Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law:
(a) Equal and effective access to justice;
(b) Adequate, effective and prompt reparation for harm suffered;
(c) Access to relevant information concerning violations and reparation mechanisms.
The European Court has held that the failure to conduct an effective investigation into credible allegations of human rights violations may violate the right to an effective remedy of the victim and/or their relatives.[14]
Suggested Follow-Up Question
From this briefing we in the Stop the Maangamizi Campaign suggest Baroness Natalie Bennett can pose a follow-up question along the following lines:
To ask Her Majesty’s Government, will it now, in connection with the International Decade for People of African Descent, recognise the importance of an inquiry into reparatory justice for tackling the legacies of Afrikan Enslavement such as Afriphobia, colonisation and neocolonialism, with holistic measures, including redressing the climate and ecological crises in ways that ensures that the voices of Afrikans and their descendants are properly heard and Planet Repairs delivers global justice to all.
Esther Stanford-Xosei, Coordinator General, Stop The Maangamizi: We Charge Genocide Ecocide Campaign (SMWeCGEC)
30/11/20
There are two ways of seeing and interpreting international legal transformation – from above as most lawyers do when they focus on formal sources, judicial opinions, and treaties exclusively – or from below when we focus on the lived experience of ordinary people with international law when they encounter international institutions, frame their demands in international legal terms, and network for influencing international or domestic policy.
Balakrishnan Rajagopal, International Law From Below, 2005
[1] https://questions-statements.parliament.uk/written-questions/detail/2020-11-12/hl10267
[2] Movement Lawyering as Rebellious Lawyering by Betty Hung
https://www.law.nyu.edu/sites/default/files/upload_documents/Betty%20Hung%20–%20Movement%20Lawyering.pdf
[3] https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx
[4] https://www.ohchr.org/en/professionalinterest/pages/minorities.aspx
[5] https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168007cdac
[6] https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[7] Universal-Right-to-a-Remedy-Publications-Reports-Practitioners-Guides-2018-ENG.pdf (icj.org)
[9] https://www.legislation.gov.uk/ukpga/2001/17/contents
[10] https://www.change.org/p/stop-the-maangamizi-we-charge-genocide-ecocide
[14] Aksoy v Turkey, ECtHR, Judgment of 18 December 1996, Reports 1996-VII,paras 95-100.
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