What do we mean by reparations

[SQUEAKING] [RUSTLING] [CLICKING] LILIANE UMUBYEYI: Hi, good morning, everyone. I'm happy and honored to give this introductory session on reparations. But before I start, I would like to give you my disciplinary perspective. The concept of reparations has been studied from different angles and different disciplines, whether it's economy, sociology, law, philosophy. And I would like to give you more details from where I speak and I stand when I talk about this concept of reparation. So during my PhD dissertation, I studied mobilization of apartheid victims in South Africa before American and in South African courts. And within this dissertation, I treated the question of reparations, how this concept was appropriated and used by victims movements, NGOs, lawyers, and different groups of actors. So I'm not-- and after that, I work for different NGOs and human rights organizations mainly in sub-Saharan Africa, an organization, which were which were implementing programs of reparations. And at this stage, I'm not going to give you a presentation on the meaning of the concept of reparations, but rather, on how this concept is used, appropriated in different contexts by different actors, and what are the concrete implications of these multiple uses. I'm going to I'm going to share my screen with you. I think it will be more helpful since I have different concrete examples. OK, so we have-- I know you have just read the text written by Pablo De Greiff on the concept of reparations and on the distinction between different contexts, where the term of reparation is used. In his text, Pablo De Greiff makes the distinction between international law, where the concept of reparation can take different forms. He talks about restitution, compensation, rehabilitation, satisfaction, and guarantee of non-repetition. The other context in which the term reparation is frequently used, according to Pablo De Greiff, is the design of reparation programs with massive coverage. And he insists on the difference between these different contexts and explaining how, one, in the context of international law, the concept of reparation has a kind of juridical meaning. Whereas in the second one, the reparation are apprehended much more as a political project. And I would like to stop on this point to share or to illustrate how these distinctions or how different appropriation of the concept of reparation play out in a concrete case, which is the case of apartheid victims mobilization in South Africa. I would start by this example of our project victims mobilization. So as you know, at the end of apartheid, the South African government set up a Truth and Reconciliation Commission in charge of telling the truth of the crimes of apartheid, grant amnesty, if certain conditions were made, and proposing recommendations for reparations. The image on the left illustrate one of the session for the Truth and Reconciliation Commission. So this commission was held between 1996 and 1998. Some of the work continued after, but the main sessions were held during that time. And the South African Truth and Reconciliation Commission, which were interpreted apartheid violence as human rights violations related to physical and integrity, and as observed by Mahmood Mamdani, and many other scholars after this narrow interpretation of apartheid violence has the consequence of putting aside all the structural character of apartheid injustices. Not considering the social economic violence of the apartheid system, and at the level of reparations, this has a consequence since there's only a limited number of people that were considered as victims of apartheid that have been given the status of victim apartheid. It's only 22,000 people who could benefit from individual reparations. This small nuance that I can bring on this aspect is that, in the TRC, the Truth and Reconciliation Commission, the group was aware that, of course, apartheid involved much more discriminations. But people who have been given the status of victims and who could have access to reparations were only 22,000. In the early 2000, in the early 2000, a group of victims, of apartheid victims, decided to go to court before American courts, and that's the image that we have on the right side. They went to court, and they sued multinational corporations that were accused of having aided and abetted the apartheid regime. In this trial, the victims challenged the concept of reparations that was based on physical violence, physical integrity, and one of the main arguments was to say that entire communities were affected by apartheid. A system of discrimination. Apartheid constituted a system of discriminations that affected every aspect of the existence of black populations from the most intimate relations with whom you could marry, to the places where you could study, where you could work, where you could travel, where you could live. So this structural character of apartheid, and consequently, the reparations cannot be individuals, cannot be apprehended at the individual basis. They must take into account this structural dimension. So this lawsuit has been brought into court in 2002 and stayed in court until 2015. But it couldn't go further because of the legal proceedings and all the challenges of bringing a South African case before American courts. We could go further into further details later on, but I'm going to limit myself here on this question, on this aspect. But what is important here to keep in mind on this aspect of reparations, first of all, it is-- this case illustrates how it is important to pay attention on the concept, how the concept of reparation is approached and appropriated by different actors, whether it's state actors. But we look, also, how people, how movements, NGOs, victims can formulate and reformulate demands in negotiating and negotiate the sense of reparations. So all that to say that the meaning of reparation is not something that is fixed, that is rigid. It's something that evolves, and that evolves over time, and over space, as we see here, for what happens in South Africa, and how it goes into American courts. And that is contested. The second element that this case highlights is that, if we understand the concept of reparation, as it has been defined by the Truth and Reconciliation Commission, and we will compare it to how it is defined by victims movements in the case of when they go to American courts, we can see that there are concrete implications. There are significant, concrete implications. Because, on one case, we have 22,000 people who have access to reparations. Whereas in the second case, their argument was to say, if we take into account the multiplicity of discrimination that were inherent to the system of apartheid, then we have to reconsider the number of people who are victims and who have access to reparations. We can see that behind this maybe abstract definition, there are significant differences and concrete steps that are important. I would like to move to a second case, which is the link, a second case, but which highlights the importance of the significance of the link between the qualification of violence and reparations. In other words, what kind of violence can be repaired, what kind of violence can be repaired? And what kind of victims have access to reparations? The most significant or the most telling case in this regard for me concerns the demand for reparations expressed by Namibia, and the Ovaherero, Nama in some communities to Germany. Reparations or demanding reparations, which had been expressed concerning the genocide against those populations at the beginning of the 20th century. The process of claiming this reparation began in 2005 with interested discussions between Germany and Namibia. And for a very long time, Germany, but also, other former colonial powers have been advancing the inter- temporal principle. So this is a principle in international law, which stresses that a state is responsible for violation of international law only, if, at the time of the violation or of its continuing effects, the state was bound by the legal provision it transgressed. Well, in other words, and this is the argument, which has been given by Germany. They, at the time of-- at the time the genocide was committed, they were not violating any international law. And, therefore, there's no obligation to provide reparations. This argument has been used by Germany and is still, somehow, being used by Germany. But it also-- it has also been used by many former colonial powers. Here, you can see the image here at the Durban Conference, which is the conference, one of the biggest conference organized by the United Nations in 2001, 20 years ago, on racism. And when many states expressed the need for reparations within this conference, the response of many colonial and former colonial powers was to advance this principle. However, some scholars, and I think that is also the case for the UN Special Rapporteur on the question of reparations. It is to say that there is an exception. There is an exception if direct consequences of these acts extend into a time when the act and its consequences are considered international [INAUDIBLE].. For example, that means that we could not use this for them in their interpretation. We cannot use this principle for racial discriminations, now, because they are the consequences of these facts that happened at a time, where a state had no international legal obligation. Because we have direct ongoing consequences of this fact. This case, for me-- this case, for me, it's illustrative of a different important, significant points. The first point that I want to insist upon is that the moment when the facts happened, the facts for which people are asking for reparations or reparation claims are made, that moment is fundamental since it determines, whether a state can be liable on the basis of international law and as reparations. This is the first key element. The second element, what this case is illustrative of is the paradox faced by reparations movements since, in order to demand-- the paradox is that they have to use tools international-- if they use international law, they are constrained to a legal system. And with its limits and principles, which has rendered possible, the colonial system. So they have to operate in a system that was at the basis of the colonial phenomenon, and to challenge that system on the basis of that legal system is quite constraining and imposes of the number of limits. And this leads me to my third point that I would like to-- the third and last point that I would like to share with you. I would even say a question. So if we think that international law is limiting because of certain principles that have been set up at a moment where colonialism was prospering, if we think that it's limiting, then, what kind of model of justice should we use or could we use if we want to ask for reparation? What could be the alternative to international law? One of the cases that could be that is interesting here is the case of reparations in Canada. So before I address the image in the dissertation that you see here, I would like to just give you a little bit of background. So as you may know, from the late 19th century to 1996, the government of Canada operated the Indian residential school system with the goal of assimilating indigenous children by stripping them of their traditions, customs, values, languages. And the children were subjected to different physical abuses, sexual and emotional abuses. And in the early '90s, former students of this system decided to litigate to ask for reparations to the government, but also, to the churches that were involved in this system. And they denounced in a lawsuit, and this lawsuit led to a settlement with the government, a settlement of $5 billion. And that settlement also involved reparations, which were not only financial reparations, but also, the acknowledgment of the past wrongs, compensation, rehabilitative measures, including physical and psychological health services, legal services, educational support, and the establishment of the Truth and Reconciliation Commission. And the chief investigator involved in the negotiation of this settlement has explained that it was possible -- That settlement was only possible by setting aside conventional legal frameworks of tort and civil law in favor of indigenous law and legal traditions, and my point here is to show what can be achieved, if we decide, if we follow alternative paths to international law. And for me-- and this is more a question and, I think, something that we we'll address in the different workshops or the different presentation that will follow in the modules is to understand what extent the transitional justice framework could be useful in addressing, or responding, or addressing colonial violences, injustices. Colonial, but also, slavery. Why do I bring this question of transitional justice framework? I think about transitional justice framework, because the original idea behind transitional justice is that legal practitioners.. And that's in the late '90s. Some legal practitioners expressed the need to question the centrality of the criminal trial as a way to respond to mass violence, and there was a desire among these legal practitioners to look at the mechanisms that were used in different mechanisms for resolving conflicts in the African states, in Asian states, South America, but non-Western, a non-Western concept of seeking individual responsibility. And there were-- and within this interrogation emerged the idea of using some concept and mechanisms, the Truth and Reconciliation Commission. Of course, that was the original idea in the '80s. But after that, the transitional justice framework has evolved and has come to include criminal trials. I'm not here to say if it's a good-- I mean, if it's a good or bad evolution. But we know that the field has evolved, and has come to include this evolution, and has come to be much more-- it's much more used by international organizations, NGO, United Nations, with all the technicalities that it involves. But at the beginning of this interrogation, there was the need to question the centrality of the Western use of trials. Yeah, what I found interesting in these debates about reparation and about reparations for colonialism is to see if these models that are, most of the time, used in the global South, if they can be used to rethink the way we think about trials, the way we think about litigation regarding colonialism and slavery in the Western societies. So all this to say that the concept of reparation is not a-- it's not something-- I mean, to conclude, it's not something that is rigid. It's not something that has a fixed meaning. It's something that is evolving over time and over space. But it is also a concept that is evolving in the midst of many transformations of international law, of transitional injustice, of other mechanisms and practices that are also inherited from the history of the legal systems and practices of the resolving conflicts. Yes, so that's it. I think that we can dig. We can go deeper into some aspects within the Q&A and, of course, within the modules. Thank you.