Proposals for reparations for American slavery often focus on centuries-old circumstances, legal issues, and cultural attitudes, proposing compensation to the descendants of slaves for ancestral harm suffered. This view treats slavery as something that ended at the Civil War and ignores its de facto persistence for another century until the 1960’s Civil Rights movement and for yet another 60 years of normalized cultural racism since then. Further, it misses the opportunity that reparations offer: a chance to cleanse the past and create an inspired future. The global community offers a framework for this kind of opportunity — international human rights law, but the USA has long resisted global accountability, asserting instead its “rugged individualism” version of national sovereignty.
Rugged Individualism Sovereignty
Herbert Hoover introduced the term “rugged individualism” into the American lexicon in a 1928 campaign speech. [1] He began by acknowledging the need for federal control of the WWI mobilization, but rejected it as a standard for going forward, demonizing it as “European” and advocating a return to the Republican Party’s decentralized agenda.
“[At the end of World War I], the most vital of issues both in our own country and around the world was whether government should continue their wartime ownership and operation of… production and distribution. We were challenged with a… choice between the American system of rugged individualism and a European philosophy of diametrically opposed doctrines doctrines of paternalism and state socialism. The acceptance of these ideas would have meant the destruction of self-government through centralization… [and] the undermining of the individual initiative and enterprise through which our people have grown to unparalleled greatness.”[2]
Hoover’s perspective was untimely and off the mark. Rugged individualism didn’t pull the nation out of the 1930’s Great Depression. For that, the country needed another wave of massive federal investment in the New Deal, followed by another centralized war effort. After the second world war, federal guidance shepherded three decades of post-war recovery, but in time the nation returned to rugged individualism as politicians continued to demonize democratic socialism until it became synonymous with Soviet Communism — a characterization both intellectually and historically false.
Sovereignty Without Accountability
Rugged individualism applied to the issue of national sovereignty results in a lack of accountability which 20th Century political theorist Hannah Arendt identified as the identifying hallmark of totalitarianism, since it results in “the possession of all instruments of governmental power and violence in one country.”[3]
The historic roots of this outlook lie in a Biblical hierarchical worldview in which God reigns uncontested at the top, and national charters derive directly from the supreme divine source. God enjoys absolute sovereignty unaccountable to anyone for anything, and is therefore free to enforce divine will by any means, including holy war, genocide, temporal chastisement, and eternal torture. The derivative sovereignty of nations is similarly unrestrained. In this scheme, “the divine right of kings” protected the English monarchs with its declaration that “the king can do no wrong,” and the concept was imported into the Colonies as ”sovereign immunity,” which protects state and federal officials. The divine right of kings and sovereign immunity, like God’s rule, are therefore ultimately totalitarian.
“Many of us see the term [totalitarianism] primarily as polemical, used more to discredit governments than to offer meaningful analyses of them. Scholars often prefer the much broader term authoritarianism, which denotes any form of government that concentrates political power in the hands of an unaccountable elite.”[4]
International Accountability – The Nuremberg Trials
The Nazis in control of Germany operated under their own totalitarian version of national sovereignty, possessing “all instruments of governmental power and violence” which concentrated “political power in the hands of an unaccountable elite.” To hold them accountable after the end of the war, the victorious allies convened the Nuremberg Trials under the authority of a unilaterally-imposed instrument known as the London Charter.[5] The resulting trials defied traditional notions of national sovereignty, as described in a 1946 article in The Atlantic, written by a Federal judge.
“The Nuremberg War Trial has a strong claim to be considered the most significant as well as the most debatable event since the conclusion of hostilities. To those who support the trial it promises the first effective recognition of a world law for the punishment of malefactors who start wars or conduct them in bestial fashion. To the adverse critics the trial appears in many aspects a negation of principles which they regard as the heart of any system of justice under law.
“This sharp division of opinion has not been fully aired largely because it relates to an issue of foreign policy upon which this nation has already acted and on which debate may seem useless or, worse, merely to impair this country’s prestige and power abroad. Moreover, to the casual newspaper reader the long-range implications of the trial are not obvious. He sees most clearly that there are in the dock a score of widely known men who plainly deserve punishment. And he is pleased to note that four victorious nations, who have not been unanimous on all post-war questions, have, by a miracle of administrative skill, united in a proceeding that is overcoming the obstacles of varied languages, professional habits, and legal traditions. But the more profound observer is aware that the foundations of the Nuremberg trial may mark a watershed of modern law.”[6]
The Nuremberg Trials thus initiated an unprecedented accountability for transnational crimes:
“There were many legal and procedural difficulties to overcome in setting up the Nuremberg trials. First, there was no precedent for an international trial of war criminals. There were earlier instances of prosecution for war crimes, such as the execution of Confederate army officer Henry Wirz (1823-65) for his maltreatment of Union prisoners of war during the American Civil War (1861-65); and the courts-martial held by Turkey in 1919-20 to punish those responsible for the Armenian genocide of 1915-16. However, these were trials conducted according to the laws of a single nation rather than, as in the case of the Nuremberg trials, a group of four powers (France, Britain, the Soviet Union and the U.S.) with different legal traditions and practices.
“The Allies eventually established the laws and procedures for the Nuremberg trials with the London Charter of the International Military Tribunal (IMT), issued on August 8, 1945. Among other things, the charter defined three categories of crimes: crimes against peace (including planning, preparing, starting or waging wars of aggression or wars in violation of international agreements), war crimes (including violations of customs or laws of war, including improper treatment of civilians and prisoners of war) and crimes against humanity (including murder, enslavement or deportation of civilians or persecution on political, religious or racial grounds). It was determined that civilian officials as well as military officers could be accused of war crimes.”[7]
“I was only following orders.”
National policy is carried out by individuals, and the Nuremberg Trials eliminated the defense that the accused were merely following the orders of the state. This was an unprecedented evidentiary innovation that, like the London Charter, defied historical notions of state sovereignty, particularly with respect to the actions of military personnel.
“In connection with war crimes of this sort there is only one question of law worth discussing here: Is it a defense to a soldier or civilian defendant that he acted under the order of a superior?
“The defense of superior orders is, upon the authorities, an open question. Without going into details, it may be said that superior orders have never been recognized as a complete defense by German, Russian, or French law, and that they have not been so recognized by civilian courts in the United States or the British Commonwealth of Nations, but they tend to be taken as a complete excuse by Anglo-American military manuals. In this state of the authorities, if the International Military Tribunal in connection with a charge of a war crime refuses to recognize superior orders as a defense, it will not be making a retroactive determination or applying an ex post facto law. It will be merely settling an open question of law as every court frequently does.”[8]
“Slavery was legal at the time” and the International Statute of Limitations for crimes against humanity.
A corollary of the “only following orders” defense is the assertion that slavery was legal at the time. General Lee’s surrender at Appomattox[9] presented a question of lingering guilt to former Confederates that was quickly resolved by Presidential pardons.[10]
International human rights law presents a similar problem. The Rome Statute was created by treaty, to be enforced by the International Criminal Court, effective in 2002.[11] It established four core transnational crimes similar to those applied at the Nuremberg Trials: genocide, crimes against humanity, war crimes, and crimes of aggression. “Enslavement” is included in the Rome Statute’s list of crimes against humanity, [12] and there is no statute of limitations. Therefore it is no defense under international law that American slavery was the law of the times.
“Under international law, crimes against humanity, war crimes, and genocide have no statute of limitations, according to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity and Article 29 of the Rome Statute of the International Criminal Court.”[13]
“In the international arena, the non-applicability of statutory limitations pertains to crimes that are extremely difficult to prosecute immediately after they were committed. This is particularly true of war crimes, crimes against humanity, or genocide. Given the context in which such crimes tend to be carried out, it is often necessary to wait for a change in the situation—an end to the conflict or a change in regime—for it to become possible, in practice, to initiate judicial proceedings. The non-applicability of statutory limitations prevents the most serious crimes, and those most difficult to prosecute, from going unpunished.”[14]
As long as a nation refuses the jurisdiction of international law, and absent an extraordinary unilateral enforcement such as the London Charter, a nation can remain shielded by its own self-declared sovereignty. And since there is no international statute of limitations, the nation has every incentive to keep it that way. No surprise, then, that the United States quickly repudiated the International Criminal Court immediately after the effective date of the Rome Statute. The USA’s main concern: to protect its military personnel from guilt associated with following orders.
“One month after the International Criminal Court (ICC) officially came into existence on July 1, 2002, the President signed the American Servicemembers’ Protection Act (ASPA), which limits US government support and assistance to the ICC; curtails certain military assistance to many countries that have ratified the Rome Statute establishing the ICC; regulates US participation in United Nations (UN) peacekeeping missions commenced after July 1, 2003; and, most controversially among European allies, authorizes the President to use ‘all means necessary and appropriate to bring about the release’ of certain US and allied persons who may be detained or tried by the ICC.”[15]
The same issue was behind the Trump Administration’s recent ICC sanctions:
“On Thursday, the president followed through on the longstanding threats by his foreign policy team, issuing new sanctions against the ICC over its provocative effort to investigate and prosecute American military, intelligence, and perhaps even former political officials for alleged war crimes in Afghanistan.”[16]
Reparations for American Slavery Under International Law
A recent The Wall Street Journal editorial argued for slavery reparations under international law.
“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.”[17]
The editorial asserts without qualification 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.” But as we’ve seen, even if the USA is accountable for slavery and there is no statute of limitations under international law, the nation can continue to shield itself from global accountability by asserting its rugged individualism sovereignty.
Interference in “Internal Affairs.”
The USA routinely vilifies the world’s dictatorial strongmen for telling us (and the rest of the world) to stop meddling in their internal affairs, failing to notice that this attitude matches our own concept of national sovereignty.
A Google search of “interference with internal affairs” turns up a fascinating look at the futility of international diplomacy on this topic. Invariably, one nation’s “interference in internal affiars” is another’s “crime of aggression.” The U.N.’s Charter tried to find a way through this conflict, but the result raises more questions than answers. Here’s a sample:
“To what extent does the UN Charter permit legitimate violation of the sovereignty of another state, in the absence of international armed conflict or acts of national self defense? Should moral imperatives override legal authority? Even assuming the mandate was soundly based in law, was it breached by the coalition and NATO in the manner of its execution? While the mandated authority to protect civilians was interpreted most liberally, some might say it was used as a smoke screen for an intent which was subsequently revealed, that of regime change, for which there is no lawful authority under the Charter.”[18]
The USA bypasses this legal sparring by resisting international interference. The Trump administration’s recent sanctions against the ICC replay this familiar theme, as evidenced by editorial commentary from his media supporters:
“In essence, the ICC is the plaything of the European left, post-sovereign technocrats, and progressive legal elites — one-worlders who won’t provide for their own security and dream up schemes to delegitimize actions that sovereign states, especially the United States, take in their national interests.”[19]
“This sanctions regime is fundamentally misguided. It will do little to stop the ICC’s investigation, erodes the U.S. longstanding commitment to human rights and the rule of law, and may undermine one of the most powerful tools in the U.S. foreign policy arsenal — economic sanctions.”[20]
The counterpoint to this commentary is the recognition of the USA’s historical preference for unilateralism.
“Last week, U.S. President Donald Trump signed an executive order imposing sanctions on several individuals associated with the International Criminal Court (ICC). The order is the latest salvo in an ongoing battle against the ICC, which the Trump administration has long sought to undermine in order to avoid accountability for itself and its allies. The move is also part of a broader disengagement with the multilateral system.”[21]
This political preference for “disengagement with the multilateral system” did not deter Trump’s recent call for the U.N. to impose global accountability against China with respect to the pandemic.[22] Chinese leader Xi Jinping responded by citing the USA’s historic unilateralism and isolationism:
“We will continue to narrow differences and resolve disputes with others through dialogue and negotiation. We will not seek to develop only ourselves or engage in zero sum game. Unilateralism is dead.”
“Burying one’s head in the sand like an ostrich in the face of economic globalization, or trying to fight it with Don Quixote’s lance, goes against the trend of history. Let this be clear: the world will never return to isolation.”[23]
Aside from a history of slavery and following orders in Afghanistan, the USA has further issues with human rights law, as evidenced by recent accusations from the last-surviving Nuremberg Trials prosecutor. We’ll look at that next time.
Also coming up, we’ll also look beyond the legal issues of global accountability to the non-legal case for reparations and the opportunity they offer for a national reset.
[1] World History Facts, American “Individualism” Is Shallow and Immoral, Medium Dialogues and Discourse (Sept. 15, 2020).
[2] Full text at Digital History.
[3] Arendt, Hannah, The Origins of Totalitarianism (1951)
[4] Huneke, Samuel Clowes, An End to Totalitarianism, Boston Review (April 16, 2020). Samuel Clowes Huneke “is an assistant professor of modern German history at George Mason University. His research focuses on Germany after World War II….”
[5] Wikipedia – Nuremberg Charter.
[6] Wyzanski, Charles, Nuremberg: A Fair Trial? A Dangerous Precedent, The Atlantic (April 1946)
[7] Nuremberg Trials, History.com (updated June 7, 2019, original Jan. 29, 2010)
[8] Wyzankski, op cit.
[9] History.com – Robert E. Lee Surrenders.
[10] Wikipedia – Pardons for Ex-Confederates.
[11] Dag Hammarskjöld Library, Jan 8, 2020. See also Wikipedia – Rome Statute International Criminal Court.
[12] The Rome Statute, Article 7.
[14] The Practical Guide to Humanitarian Law, Médecins Sans Frontières (Doctors Without Borders).
[15] US Policy Regarding the International Criminal Court (ICC), Congressional Research Service (July 9, 2002 – August 29, 2006).
[16] International Court V. Trump: A Case Of Politics, Not Justice, The Hill (June 15, 2020)
[17] International Law Demands Reparations for American Slavery, The Wall Street Journal (June 9, 2020).
[18] Paphita, Anthony, Intervention in the Internal Affairs of States, E-International Relations (Oct 25 2011).
[19] International Court V. Trump: A Case Of Politics, Not Justice, The Hill (June 15, 2020)
[20] The Danger Of Trump’s New Sanctions On The International Criminal Court And Human Rights Defenders, Brookings Institute (June 11 2020)
[21] Trump’s Chilling Blow To The ICC With International Criminal Court Sanctions, Foreign Policy (June 17, 2020)
[23] Trump Attacks China Over Covid ‘Plague’ As Xi Urges Collaboration In Virus Fight, The Guardian (Sept. 22, 2020).
Iconoclast 