History is replete with episodes of genocide, slavery, torture, forced conversions, and mass expulsions of peoples. For political, economic, religious, or ethnic reasons, states often abused or allowed the abuse of specific minorities or foreign populations. These events remain alive in memory and sometimes resurge as the foundation of modern conflicts. To a large extent, the existence and boundaries of all modern states are the result of past acts and omissions that would be unlawful today according to international law and most national constitutions and laws. The acts are also viewed in retrospect as morally wrong, even if they were not illegal at the time they were committed. Such acts and omissions are referred to as historical injustices.
Historical injustices are the subject of a growing number of legal and/or political claims to repair the harm they caused. In some instances, the consequences of the injustices persist into the present. As a consequence, states and societies throughout the world are being asked to account for historic abuses and provide redress to victims or their descendants. Unresolved injuries and losses from World War II, for example, have been addressed in recent years through litigation and negotiations. In Greece alone, more than sixty thousand cases were filed in the past decade concerning World War II abuses.
Some historical injustices involve events occurring a century or more ago. The United Nations Conference on Racism, held in Durban in 2001, debated the issue of reparations for the Atlantic slave trade and colonialism. In the United States, slave reparations have been claimed at least since the Emancipation Proclamation of 1865. Many descendants of slaves continue to seek redress and have brought lawsuits against individuals and companies for an accounting of their profits and assets acquired exploiting slave labor.
Abuses perpetrated against indigenous peoples represent perhaps the largest number of historical injustices. Many of these groups' demands are based on breaches of treaties entered into between a state and an indigenous group. In Canada, claims involve the relocation of the Inuit in the 1950s, and the sexual and physical abuse of aboriginal students in residential schools where they were sent after removal from their families. Native Hawaiians demand redress for the loss of their independence, lands, and culture. They have filed state law claims for back payment of ceded land trust revenues and to enjoin the negotiation, settlement, and execution of a release by trustees because of the overthrow of the government in 1893.
State Responses to Historical Injustice Claims
States and governments have responded in varying ways to the claims concerning historical injustices. Many heads of state or governments have issued formal apologies for past acts. Some claims, particularly those of indigenous groups, have led to the negotiated restitution of lands and resources. Australia returned 96,000 square miles of land in 1976 to Aborigines in partial compensation for land seized by white settlers. Canada also restored land to indigenous groups, after some thirteen years of negotiations. A recent agreement between Quebec and the Cree Nation gives the latter management of their natural resources and recognizes their full autonomy as a native nation. In the United States, as early as 1946 an Indian Claims Commission received jurisdiction to hear and resolve claims arising from the seizure of Indian lands and treaty breaches by the United States. The 1971 Alaska Native Claims Settlement Act granted indigenous Alaskans monetary relief as well as land. A 1990 federal law in the United States orders the restitution of human remains of Native Americans along with goods and funerary objects recovered from the original graves. New Zealand created a process for redressing wrongs committed in the late 1880s that involves returning lands and factories, fishing vessels, and fishing rights.
Compensation has also been forthcoming. In October 2000 Austria established a $380 million fund to compensate individuals forced into slave labor during World War II. Five U.S. Native-American groups successfully recovered monetary compensation, as did indigenous groups in Norway and Denmark. In 1995 the State of Florida paid $2.1 million in compensation for a race riot and massacre that occurred in 1923 in the town of Rosewood, Florida. In January 1998 Canada established a $245 million "healing fund" to provide compensation for the First Nation children who were taken from their families and transferred to residential schools.
Governments have rejected some claims. Japan has refused to offer an official apology or make reparations to World War II sex slaves, arguing that the acts were not illegal at the time and rejecting the assertion that the women were de facto slaves. The Australian government has denied reparations to members of the "Stolen Generations" of Aboriginal children taken from their families as part of a government assimilationist policy, despite recommendations to that effect contained in the government-commissioned official report on the matter.
Legal and Political Issues
Claims of historical injustice are considered moral rather than legal claims because either the law did not prohibit the acts at the time they were committed, there is some uncertainty about the state of the law, or there are procedural barriers to bringing a case. As a result of these problems, nearly all resolution of disputes over historical injustices, whether in the form of an apology, land, or money, has come about through negotiations or the political process rather than through the courts. To give one example, the U.S. 9th Circuit Court dismissed a case seeking reparations for slavery (Cato v. United States, 70 F3d 1103, 1105 ), saying that damages due to enslavement and subsequent discrimination should be addressed to the legislature, rather than the judiciary. The court was unable to find "any legally cognizable basis" for recognizing the claim, distinguishing Native-American claims because the latter were based on treaties between nations.
Despite the lack of success in court, many lawsuits have been widely publicized and have led to negotiated or legislative settlements. Cases brought against insurance companies who failed to pay on policies owned by Holocaust victims led to the establishment of an International Commission on Holocaust Era Insurance Claims, formed by five of the major insurers. In February 2000 the commission announced that it would begin a two-year claims process to locate and satisfy unpaid Holocaust-era insurance policies. Similarly, a 1995 German–U.S. agreement concerning final benefits to certain U.S. nationals who were victims of National Socialist measures of persecution resulted from a lawsuit brought by an individual Holocaust victim.
Arguments For and Against Reparations for Historical Injustices
Reparations for historical injustices are supported for several reasons. First, some acts were illegal under national or international law at the time they were committed, but the victims have been unable to secure redress for political reasons, because evidence was concealed, or because procedural barriers have prevented them from presenting claims. In such circumstances, advocates argue that a lapse of time should not prevent reparation for harm caused by the illegal conduct. Second, states, communities, businesses, and individuals unjustly profited from many of the abuses, garnering wealth at the expense of the victims. Third, most examples of historical injustices have a compelling moral dimension because the events took place during or after the emergence of the concept of basic guarantees of human rights to which all persons are equally entitled. Redress is a symbol of moral condemnation of the abuses that occurred. Proponents argue that if human rights are truly inherent and universal, then they apply not only territorially, but also temporally and provide a basis to judge past practices. Advocates for redressing historical injustices also reject the notion that present generations have no responsibility for the past. They note that every individual is born into a society or culture that has emerged over time and that shapes each person, making the past part of the present and giving the society and individuals a historic identity. On a practical level, un-righted wrongs fail to deter further harmful conduct and foster social resentment.
The most common objection to redress for historical injustices is that it involves retroactive application of the law. Nonretroactivity of law derives from the notion of fundamental fairness, the idea that individuals may legitimately rely on legal norms in force at the time they act:
Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal (Landgraf v. USI Film Products, 511 US 244, 265 ).
Nevertheless, reliance may not be legitimate if the rule is openly contested, in transition, or patently unjust.
Opponents also point to the long passage of time that clouds issues of causality and damage. They invoke the notion of personal responsibility to object to persons today paying for the acts of their predecessors, sometimes distant ancestors. In addition, opponents note that in many instances not only are living perpetrators absent, but there are no present-day victims of long-past violations. In some instances, opponents cite existing laws protecting human rights and affirmative action, calling these measures reparative in aim and effect. Some view reparations for historical injustices as the triumph of a victim psychology that blames everyone else for today's problems. They argue that when a community bases its communal identity almost entirely on the sentimental solidarity of remembered victimhood, it may give rise to recurring cycles of violence and turn victims into perpetrators.
International and national law can have retroactive effects, but is presumed to have prospective force. Most human rights treaty procedures, for example, permit complaints to be filed only for violations occurring after the treaty becomes legally binding for the state. The rule does allow a case to be filed, however, for a violation that began before the state was bound by the law if the wrong continues after the state becomes obliged to respect the treaty. Human rights law also requires nonretroactivity of criminal offenses, but this rule would not apply to resolving historical injustices through means other than prosecution. For property, international and national laws recognize that the unilateral acts of states may divest property owners of their previously acquired property, provided the taking is for a public purpose and nondiscriminatory, and accompanied by appropriate compensation.
It is not always clear that historical injustices involved acts that were legal at the time they were committed. If they were illegal, the law of reparations will apply. If the acts were lawful, the question of whether or not to ascribe retroactive effect to the law and condemn the acts involves a balancing of the equities, the strength of the claims, the need for reconciliation, and the practicalities of devising appropriate reparations between appropriate entities and persons. When considerable debate has arisen over the morality or legality of the acts, it may be more just to award reparations on the basis that reliance on the existing law was misplaced and unwarranted.
Experience thus far suggests that the resolution of claims which lack a legal foundation will take place through the political process. Many factors will affect the likelihood of reparations being afforded for past injustices and most of them are linked to the amount of time that has passed. First, it is more likely that reparations will be offered if the perpetrators are identifiable and still living. Second, the victims should be identifiable, with most still alive, or their immediate descendants present. The size of the group will certainly affect the amount, if not the fact of reparations. Third, demands for reparations will probably only succeed with political pressure and strong, cohesive support by the victims themselves. Perhaps most important, the substance of the claim must be one that presents a compelling human injustice which is well documented. The claim will be even stronger when there is continued harm and a causal connection between present harm and the past injustice.
Claims for historical injustices are pursued because redress can challenge assumptions underlying past and present social arrangements. They may involve restructuring the relationships that gave rise to the underlying grievance, addressing root problems leading to abuse and systemic oppression. This brings the notion of reparations close to the current idea of restorative justice as a potentially transformative social action. It also provides a reason why legislatures may be better suited to determine reparations. They are not bound by precedent and legal doctrine, but can fashion equitable remedies to avoid the creation of future historical injustices.
Barkan, Elazar (2000). The Guilt of Nations: Restitution and Negotiating Historical Injustices. New York: Norton.
Brooks, Roy, ed. (1999). When Sorry Isn't Enough: The Controversy over Apologies and Reparations for Human Injustice. New York: NYU Press.
Robinson, Randall (2000). The Debt: What America Owes to Blacks. New York: Dutton.
Torpey, John (2003). Politics and the Past: On Repairing Historical Injustices. Lanham, Md.: Rowman & Littlefield Publishers.
Winbush, Raymond A., ed. (2003). Should America Pay? Slavery and the Raging Debate on Reparations. New York: Amistad Press.
Dinah L. Shelton