Saturday, November 23, 2019

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B. African Reparations Under the Foreign Sovereign Immunities Act

One alternative is to bring an action in a U.S. court for violation of the international law of human rights against those countries or companies that perpetrated slavery and colonization against a state in Africa. Courts in the United States can only exercise jurisdiction in cases involving international law if they fall within one of the exceptions to the Foreign Sovereign Immunities Act (FSIA). The institution of slavery is arguably within the exception to the FSIA for commercial activity. Although the Hwang court held that operation of brothels by the Japanese government was not a commercial activity, that case is distinguishable from the institution of slavery. In the case of the Imperial Army of Japan, the brothels operated primarily for the purpose of satisfying the sexual needs of the troops in order to further the military objectives of the Empire. In the case of European conquest of the African states, however, the institution of slavery and the conquest and colonization itself was a means of furthering the commercial interests in labor and resources of the European empires. The task of establishing slavery as a commercial activity exception to the FSIA is eased to the extent that African states can demonstrate that European governments have coordinated their efforts with private shipping, mining, and agricultural businesses to that end.

Additionally, African states can make a colorable argument that the European powers and the United States have impliedly or explicitly waived sovereign immunity as it applies to events before 1952 by imposing retroactive application of the FSIA and reparations generally to Axis Powers after World War II. To the extent that those countries have held Germany accountable for reparations to Jewish victims of the Holocaust, African states could argue that the same countries have exposed themselves to accountability for their own misdeeds. This argument will necessarily run afoul of the U.S. Supreme Court's concern for ex post facto prosecution. Surmounting this obstacle will hinge upon the ability of the African states to characterize the jus cogens status of the international human rights law relating to slavery as a transcendent truth that should have been recognized by the slave-trading states during the time of slavery. This argument will necessarily take on a tone similar to the criminal law concept that ignorance of the law is no defense. The African states could argue that the slave-trading states can be held liable for their actions even if they believed they were acting within the norms of international law at the time. This position can be fortified by pointing to the Swiss Banks and German companies that have been held accountable for their collusion with the Nazis, although they were acting within the bounds of international law at the time.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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