Reparations for slavery, to be carried out under international human rights law, offer an historic opportunity for the USA’s national healing of its racial troubles, but the founding myth of American exceptionalism stands in the way.
Human Rights Law
International human rights law derives from the United Nations’ founding vision.
“The term ‘human rights’ was mentioned seven times in the UN’s founding Charter, making the promotion and protection of human rights a key purpose and guiding principle of the Organization. In 1948, the Universal Declaration of Human Rights brought human rights into the realm of international law. Since then, the Organization has diligently protected human rights through legal instruments and on-the-ground activities.
“The UN Charter, in its Preamble, set an objective: ‘to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’. Ever since, the development of, and respect for international law has been a key part of the work of the Organization. This work is carried out in many ways – by courts, tribunals, multilateral treaties – and by the Security Council, which can approve peacekeeping missions, impose sanctions, or authorize the use of force when there is a threat to international peace and security, if it deems this necessary. These powers are given to it by the UN Charter, which is considered an international treaty. As such, it is an instrument of international law, and UN Member States are bound by it. The UN Charter codifies the major principles of international relations, from sovereign equality of States to the prohibition of the use of force in international relations.”[1]
Although the U.S. was one of the four U.N. founders,[2] it has consistently rejected the U.N. ideal of the “sovereign equality of States.” By doing so, it avoids accountability under international human rights law.
The Case for Reparations Under International Law
The U.S. practiced legal slavery from its creation through the Civil War, de facto slavery for a hundred years after that, and since then has maintained systemic, cultural racism. It is therefore guilty of violating International law, which identifies slavery as a “crime against humanity,”[3] It is no defense to claim that slavery was a thing of the past, since there is no statute of limitations under international human rights law.[4] International law would remedy this entire history with a multi-tiered approach to reparations that includes monetary compensation and remedial action.[5]
A recent editorial in The Wall Street Journal stated the international case against the U.S. [6] The editorial first asserts that “the U.S. is bound by international law and must be guided by the precedent set by many other countries that have recognized reparations as a means to redress injustice,” referencing the legal doctrine that formed the basis for the Nuremberg Nazi Trials.
“The prohibition against slavery has now achieved jus cogens—a peremptory norm, from which no derogation is permitted. This is the highest legal status in international law, and it means retroactive responsibility may be imposed on those who violated that norm. This is how the Nazis were prosecuted at Nuremberg: retroactively—for the jus cogens of crimes against humanity. On that basis alone, the U.S. may be held legally responsible for the historical enslavement of Africans and the consequences for their descendants.”
The Nuremberg Precedent
The Nuremberg reference is particularly apt in view of comments made by the last-surviving prosecutor, Benjamin Ferencz.
“[Benjamin] Ferencz was 27 years old and this was his first case…. He began the proceedings with one of the most powerful opening statements of the Nuremberg trials: ‘It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenceless men, women and children. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action, man’s right to live in peace and dignity, regardless of his race or creed. The case we present is a plea of humanity to law. We shall establish beyond the realm of doubt facts which, before the dark decade of the Third Reich, would have seemed incredible.’”[7]
Mr. Ferencz’s recent comments were not about slavery, but rather the U.S. family separation immigration policy — a “crime against humanity” under international law.
“The last surviving member of the Nuremberg trials prosecuting team has said Donald Trump committed ‘a crime against humanity’ with the recent family separation policy.
“Ben Ferencz, 99, made the comment during a recent interview with outgoing United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein.
“The lawyer said it was ‘painful’ when he heard about how the Trump administration had separated more than 2,000 children from their families after they had crossed the US-Mexico border.”[8]
The Rome Statute’s list of “crimes against humanity” includes “imprisonment or other severe deprivation of physical liberty” and “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural… and other grounds,” and ends with the catch-all phrase “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”[9] Mr. Ferencz invoked this phrase in his comments:
“We list crimes against humanity in the Statute of the International Criminal Court. We have ‘other inhumane acts designed to cause great suffering’. What could cause more great suffering than what they did in the name of immigration law? It’s ridiculous,’ the prosecutor of war criminals said regarding the family separation policy.”[10]
American National Sovereignty vs. “The Sovereign Equality of States”
In place of the “sovereign equality of States,” the U.S. maintains what President Herbert Hoover labeled a “rugged individual” sense of national identity that it has applied to its national sovereignty. U.S. Attorney General Jeff Sessions provided a textbook application of rugged individualism in his defense of the Trump Administration’s family separation policy.
“If you cross the border unlawfully, then we will prosecute you. If you smuggle an illegal alien across the border, then we’ll prosecute you,,,, If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law. If you don’t want your child separated, then don’t bring them across the border illegally. It’s not our fault that somebody does that.
“I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government because God has ordained the government for his purposes. Orderly and lawful processes are good in themselves. Consistent, fair application of law is in itself a good and moral thing and that protects the weak, it protects the lawful. Our policies that can result in short-term separation of families are not unusual or unjustified.”[11]
Sessions invoked the Bible to substantiate the United States’ God-derived national sovereignty. The authority of God and the Bible is totalitarian, beyond accountability. Since the United States derives its national sovereignty from God and the Bible, it enjoys the same totalitarian authority, above any law other than its own. Its laws are good and moral by definition, and its government and government officials are free from fault because its laws say they are.
Yes, a U.S., Attorney General actually said that.
“I would cite you to the Apostle Paul.”
“God has ordained the government for his purposes.”
“Orderly and lawful processes are good in themselves.”
“Consistent, fair application of law is in itself a good and moral thing and that protects the weak, it protects the lawful.”
“It’s not our fault that somebody does that.”
Sessions’ case justifies national indifference to the plight of the tired, poor, huddled masses yearning to breathe free, the wretched refuse. the homeless, and tempest-tossed.[12] We are therefore free to terrorize them at the border if we wish.
The same concept applies to our history of institutionalized slavery and nationalized racism.
We can do better.
Germany’s WWII Reparations
Again, comparisons to post-WWII Germany are apt: through its reparations to the new Jewish state, Germany paid its moral debt for Nazism, substantially benefited Israel, and emerged from its own catastrophic history, free to take on a new national identity.
Germany’s commitment to reparations did not come easily.
“In 1952, when West Germany began the process of making amends for the Holocaust, it did so under conditions that should be instructive to us. Resistance was violent. Very few Germans believed that Jews were entitled to anything. Only 5 percent of West Germans surveyed reported feeling guilty about the Holocaust, and only 29 percent believed that Jews were owed restitution from the German people.
“‘The rest,’ the historian Tony Judt wrote in his 2005 book, Postwar, ‘were divided between those (some two-fifths of respondents) who thought that only people ‘who really committed something’ were responsible and should pay, and those (21 percent) who thought ‘that the Jews themselves were partly responsible for what happened to them during the Third Reich.’
“Germany’s unwillingness to squarely face its history went beyond polls. Movies that suggested a societal responsibility for the Holocaust beyond Hitler were banned. ‘The German soldier fought bravely and honorably for his homeland,’ claimed President Eisenhower, endorsing the Teutonic national myth. Judt wrote, ‘Throughout the fifties West German officialdom encouraged a comfortable view of the German past in which the Wehrmacht was heroic, while Nazis were in a minority and properly punished.’
“Konrad Adenauer, the postwar German chancellor, was in favor of reparations, but his own party was divided, and he was able to get an agreement passed only with the votes of the Social Democratic opposition.”
Nor did receiving reparations come easily to the Israelis.
“Survivors of the Holocaust feared laundering the reputation of Germany with money, and mortgaging the memory of their dead. Beyond that, there was a taste for revenge. ‘My soul would be at rest if I knew there would be 6 million German dead to match the 6 million Jews,’ said Meir Dworzecki, who’d survived the concentration camps of Estonia.
“Ben-Gurion countered this sentiment, not by repudiating vengeance but with cold calculation: ‘If I could take German property without sitting down with them for even a minute but go in with jeeps and machine guns to the warehouses and take it, I would do that—if, for instance, we had the ability to send a hundred divisions and tell them, ‘Take it.’ But we can’t do that.’
“The reparations conversation set off a wave of bomb attempts by Israeli militants. One was aimed at the foreign ministry in Tel Aviv. Another was aimed at Chancellor Adenauer himself. And one was aimed at the port of Haifa, where the goods bought with reparations money were arriving.”
But once made, Germany’s reparations were undeniably beneficial to the new Jewish state.
“West Germany ultimately agreed to pay Israel 3.45 billion deutsche marks, or more than $7 billion in today’s dollars. Individual reparations claims followed—for psychological trauma, for offense to Jewish honor, for halting law careers, for life insurance, for time spent in concentration camps. Seventeen percent of funds went toward purchasing ships. ‘By the end of 1961, these reparations vessels constituted two-thirds of the Israeli merchant fleet,’ writes the Israeli historian Tom Segev in his book The Seventh Million. ‘From 1953 to 1963, the reparations money funded about a third of the total investment in Israel’s electrical system, which tripled its capacity, and nearly half the total investment in the railways.’
“Israel’s GNP tripled during the 12 years of the agreement. The Bank of Israel attributed 15 percent of this growth, along with 45,000 jobs, to investments made with reparations money. But Segev argues that the impact went far beyond that. Reparations ‘had indisputable psychological and political importance,’ he writes.”
The reparations could not erase a shameful past, but they created a worthy future.
“Reparations could not make up for the murder perpetrated by the Nazis. But they did launch Germany’s reckoning with itself, and perhaps provided a road map for how a great civilization might make itself worthy of the name.
“Assessing the reparations agreement, David Ben-Gurion[13] said ‘For the first time in the history of relations between people, a precedent has been created by which a great State, as a result of moral pressure alone, takes it upon itself to pay compensation to the victims of the government that preceded it. For the first time in the history of a people that has been persecuted, oppressed, plundered and despoiled for hundreds of years in the countries of Europe, a persecutor and despoiler has been obliged to return part of his spoils and has even undertaken to make collective reparation as partial compensation for material losses.’”[14]
What U.S. Reparations Require
Reparations for U.S. slavery require an admission before the watching world that the American founding legal system created a racist regime of national cruelty, our fledgling nation shaped itself on those terms for its first centuries, this regime persisted into a Civil War that purportedly overthrew it, de facto slavery continued for another hundred years, even the landmark legislation of the 1960’s Civil Rights Movement did not eradicate either legal or de facto racism, which persisted in the form of cultural discrimination, systemic racism still persists today.
In addition, reparations require a commitment to set things to right. This history has left a toxic stain on the U.S. national identity that we wish to remedy with a fresh vision for what our national culture could be if we were to chart a non-racial course into our future and thereby redeem what it means to be “the land of the free.” We wish to make amends, to chart a new course and see it through, and we welcome the assistance of the aspirational ideal of governments everywhere that nations exist to improve the lives of their citizens.”
In a word, reparations require humility – in particular, a formal end to the U.S. claim of national exceptionalism.
“The City Upon a Hill”
The idea of American exceptionalism is 400 years old — born in the context of colonial era belief in white European superiority. It is therefore by definition at odds with racial equality.
“In 1630, John Winthrop, the first Puritan governor of Massachusetts Bay, declared that ‘we shall be as a city upon a hill.’
“In its own day, Winthrop’s sermon [entitled “A Model of Christian Charity”] went unrecorded, unpublished, and almost entirely unnoticed. It was found and first published in 1838—at which point it continued to be ignored for another century.
“When President Ronald Reagan used Winthrop’s words to describe America, he helped transform ‘A Model of Christian Charity’ into a foundational text of American culture.[15]
President Reagan repurposed Winthrop’s sermon for the Cold War, using a reconstituted version of the Pilgrims as champions of American freedom.
“The Pilgrim story… enabled early Americans to downplay the role of slavery in our national history. Jamestown came before Plymouth. Enslaved Africans landed before the Pilgrims. Yet if the Pilgrims came for freedom, then these other beginnings could be ignored. To make the story stick, Pilgrims and Puritans—who had slaves themselves and participated in the slave trade—were washed clean of the sin altogether.
“Just as importantly, American exceptionalism has never had a place for Native Americans. Early Anglo-American historians often reimagined Native Americans as the setting against which the “true history” of America takes place. They were part and parcel of the wilderness, the stage for the story that began when Europeans first set foot on a savage and silent shore. For American exceptionalism to cohere, Native Americans had to be removed.”[16]
The popularity of American exceptionalism rises and falls with the times and the generations. Compare these polls from The Pew Research Center:
Most Americans Think the U.S. is Great, but Fewer say it’s the Greatest (July 2, 2014) – “About three-in-ten (28%) think that the U.S. ‘stands above all other countries in the world,’ while most (58%) say it is ‘one of the greatest countries in the world, along with some others.’ Few Americans (12%) say there are other countries in the world ‘that are better than the U.S.’”
A Majority of Americans Believe The U.S. is One of The Greatest Nations In The World (July 4, 2018) — “More than eight-in-ten (85%) said in a June 2017 survey that the U.S. either ‘stands above all other countries in the world’ (29%) or that it is ‘one of the greatest countries, along with some others’ (56%). While large shares in all adult generations say America is among the greatest countries, those in the Silent Generation (ages 73 to 90 in 2018) are the most likely to say the U.S. ‘stands above” all others’ (46%), while Millennials are the least likely to say this (18%).”
Younger Americans More Likely Than Older Adults to Say There Are Other Countries That Are Better Than The U.S. (January 9, 2020) – “Overall, most Americans say either that the U.S. ‘stands above all other countries’ (24%) or that it is ‘one of the greatest countries, along with some others’ (55%). About one-in-five (21%) say ‘there are other countries that are better than the U.S.’ However, slightly more than a third (36%) of adults ages 18 to 29 say there are other countries that are better than the U.S., the highest share of any age group.”
The Trump administration redirected the idea onto another course altogether.
“The rhetoric of ‘America First’ can sometimes sound like American exceptionalism, but it offers a radically different vision of the nation…. Instead of a history of the nation, America First offers a philosophy. It claims that all countries, including the US, share basically the same goal: to win. “Greatness” is not about values; it is primarily about sovereignty, power, and wealth. The hazards of America First, therefore, come not from a misguided sense of national election, but from the absence of any higher moral good…. America First urges self-interest in a world seen as a survival of the fittest.”[17]
And in 2020. the pandemic called American exceptionalism to account in a whole new way:
“Politicians extol [American exceptionalism]. Scholars debate it. The past decade has battered it. Will the coronavirus crisis finish off this country’s golden view of itself?”[18]
Meanwhile, international law and the prospect of peer membership in the global community fall weakly against American recalcitrance.
“Since its founding, the United States has defined itself as the supreme protector of freedom throughout the world, pointing to its Constitution as the model of law to ensure democracy at home and to protect human rights internationally. Although the United States has consistently emphasized the importance of the international legal system, it has simultaneously distanced itself from many established principles of international law and the institutions that implement them. In fact, the American government has attempted to unilaterally reshape certain doctrines of international law while disregarding others, such as provisions of the Geneva Conventions and the prohibition on torture… America’s selective self-exemption… undermines not only specific legal institutions and norms, but leads to a decreased effectiveness of the global rule of law.” [19]
“Corrective Justice”
The Wall Street Journal editorial cited above continues with the non-legal case for reparations:
“The case for reparations isn’t only a legal one. It is also about coming to terms with the historical injustices that explain continuing frustration and marginalization today. America can’t heal without acknowledging its “original sin”—slavery—and implementing a reparations program that encompasses truth, reconciliation, atonement and compensation.
“The grim legacy of slavery is a form of structural racism that continues to bar social, cited economic, political and health equality for many African-Americans. That is itself a justification for reparations.
“Another is that more than half a century since the end of Jim Crow, innocent African-Americans continue to be murdered at the hands of police officers and vigilantes—apparently with impunity, unless it is caught on video. There can no longer be any question that the legacy of slavery will endure unless reparations are made as a first step toward corrective justice.”[20]
“Corrective justice” benefits far beyond some kind of arbitrary remuneration to the descendants of slaves, as is often discussed. This is far too limited. It ignores a much larger class of beneficiaries that includes the entire nation and all of its citizens.
Corrective justice… grounded in national humility and carried out in an embrace of global accountability, with an aim to heal the past and create a future national trajectory free of racism… Is it just a pipe dream?
No. It’s an historical precedent for national healing, as evident in post-war Germany and the founding of the Jewish state.
And much more, it’s an historic opportunity today for the United States to chart a new course as the Land of the Free.
[1] The United Nations – What We Do, un.org.
[2] The others were China, Great Britain, and the Soviet Union. United Nations – Dumbarton Oaks and Yalta.
[3] The Rome Statute, Article 7.
[4] Statute of Limitations, Investopedia (Aug. 29, 2020). See the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Office of the United Nations High Commissioner for Human Rights (Nov. 11, 1970).
[5] 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. adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005.
[6] International Law Demands Reparations for American Slavery, The Wall Street Journal (June 9, 2020).
[7] Benjamin Ferencz: The last surviving Nuremberg prosecutor, Aljazeera (Mar. 11, 2020). See also Last Surviving Prosecutor At Nuremberg Trials Says Trump’s Family Separation Policy Is “Crime Against Humanity, The Independent (August 9, 2018).
[8] Last surviving prosecutor at Nuremberg trials says Trump’s family separation policy is ‘crime against humanity,” the Independent (Oct. 16, 2018)
[9] The Rome Statute, Article 7.
[10] Last surviving prosecutor at Nuremberg trials says Trump’s family separation policy is ‘crime against humanity,” the Independent (Oct. 16, 2018)
[11] YouTube. See Wikipedia — Trump administration family separation policy.
[12] The Story Behind the Poem on the Statue of Liberty, The Atlantic (Jan. 15, 2018)
[13] Encyclopedia Britannica – David Ben-Gurion.
[14] Coates, Ta-Nehisi, The Case for Reparations: two hundred fifty years of slavery. Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole. The Atlantic (June 2014).
[15] Hoselton, Ryan, Reagan, Clinton, Bush, and Obama All Cited One Puritan Sermon to Explain America, Christianity Today (Sept.17, 2020) – an interview with Abram C. Van Engen, an English professor at Washington University in St. Louis, regarding his book, City on a Hill: A History of American Exceptionalism. See also Wikipedia – City Upon a Hill.
[16] Ibid.
[17] Ibid.
[18] Will a Pandemic Shatter the Perception of American Exceptionalism? The New York Times (April 25, 2020)
[19] Natsu Saito, Meeting the Enemy: American Exceptionalism and International Law,
[20] International Law Demands Reparations for American Slavery, The Wall Street Journal (June 9, 2020).
Iconoclast 