Reparations: Right or Wrong? Should the Colonial Powers also pay them?

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Sarge3525
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Reparations: Right or Wrong? Should the Colonial Powers also pay them?

#1

Post by Sarge3525 » 23 Jul 2015, 13:12

I recently watched this brilliant anti-colonial speech by Dr Shashi Tharoor, Indian MP, on his proposal for Britain to pay reparations to India for its colonial rule.
https://www.youtube.com/watch?v=f7CW7S0zxv4

This speech made me think about some deep questions.
Number 1: Are reparations, whether war reparations or reparations for a series of events (IE: Colonialism, European purchase & trade of colored slaves, etc) legitimate to be paid by a current state sometimes over 100 years after the event?
I am talking on a philosophical basis.

Number 2:Right now as I know of...The only worldwide reparations paid by anybody are paid by Germany (although Im not sure if Japan is paying anything). I believe the reparations now are limited to Germany to Israel (Germany seems to have paid the rest).

But what about the colonial powers of the time?
- France
- Great Britain
- Spain
- Portugal
- Italy

Most of the governments of these states when they were colonial empires, barring possibly France & the United Kingdom, are gone and have been replaced (IE: Kingdom of Italy).

My main question is:
- If Germany is expected to pay reparations to Israel and other states, why isnt it expected of colonial powers, which arguably inflicted much more suffering worldwide to millions of people, than Germany ever did as after WW1 it had no more colonies.

- Lets turn the question around: If lets say, we argue that reparations make no sense (because you cannot expect people in 2015 to pay for the suffering SOME of their people inflicted on SOME of the parents of a colonized nation), then on what basis were the German reparations legitimate, and their continued paying of various monies worldwide?

The point being...Moralistically and legally speaking...It seems either you have reparations for past events, or you dont.
But you cannot have one nation paying them, and nations which arguably oppressed if not more, to receive a pass.

Of course Its noticeable that contrarily to Germany, some common belief (as seen in this video) in many post-colonial countries is that the Empires were often perfectly legitimated and brought advancement to the colonized (so no reparations should be paid).
This is commonly believed amongst some right wingers in France (about Indochina, Algeria, etc) and Britain about India and various African nations.
Politics does seem to color the issue of reparations and who should pay what, not any kind of legal precedent.

For instance, the morality between various nations seems to differ alot.
The Indians view the British Empire as a terrible oppression. Many British see it in a more nuanced light.
Many French have enormous respect and even veneration for Napoleon, the British see him mostly as a French Hitler.

We need proper international mediation to figure out these issues, because otherwise there will always be misunderstandings between the peoples.

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Re: Reparations: Right or Wrong? Should the Colonial Powers also pay them?

#2

Post by wm » 23 Jul 2015, 13:53

You are too late with your idea, by over a hundred years. :) Those people in the nineteenth century weren't savages, and their thinking and writing was frequently more clear and and more down to earth than what we have today.

It was/is called Permanent Court of Arbitration and was established in 1899 by the first Hague Conference,
It and was working quite well, although participation was voluntarily, as in we have problem lets go to court, if there is a problem we will meet in court.

Beside that the only law was woe to the defeated, loser pays, the victor dictates the price/reparations.

As to the colonial rule, you can't make something a crime retroactively, later laws don't apply. But you can pay voluntarily, from the depths of your heart.

There was an exception, the rules of war said that you had to pay for any damages created by your violation of any of them.
But for that a war was needed.

I think that's all but I'm no a lawyer...


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Re: Reparations: Right or Wrong? Should the Colonial Powers also pay them?

#3

Post by 4thskorpion » 23 Jul 2015, 15:53

I think wm is right.

There is a difference between "reparations" and "compensation". But how far back into history would one go in seeking compensation?

Should India also not seek "reparations" from Greece for the invasion of north-west India by Alexander III of Macedon in 936 BC which became part of Alexander the Great's empire? What about India seeking compensation from Portugal for ruling Goa, the Portuguese rule in Goa lasted for four and a half centuries, until 1961 when the Indian army annexed the state. How about seeking compensation from the French for the French state of Pondicherry (1769–1954)?

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Re: Reparations: Right or Wrong? Should the Colonial Powers also pay them?

#4

Post by David Thompson » 23 Jul 2015, 17:56

Sarge3525 -- Your choice of thread captions here ("Reparations: Right or Wrong?") is unfortunate, because it calls for an opinion. We don't have right-or-wrong opinion threads here because the forum functions as an information exchange, not as a bulletin board for posters' subjective notions:
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Since the purpose of this section of the forum is to exchange information and hold informed discussions about historical problems, posts which express unsolicited opinions without supporting facts and sources do not promote the purposes of the forum. Consequently, such posts are subject to deletion after a warning to the poster.

The same reasoning applies to opinion threads.
http://forum.axishistory.com/rules

Furthermore, we have requirements for questions:
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Noncomplying posts are subject to deletion after warning.

If you have a question, please let the readers know what steps you have taken to answer it when you post the inquiry. This will eliminate misunderstandings and give responding posters a better idea of your familiarity with the subject
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In starting this thread, you wrote:
My main question is:
If Germany is expected to pay reparations to Israel and other states, why isnt it expected of colonial powers, which arguably inflicted much more suffering worldwide to millions of people, than Germany ever did as after WW1 it had no more colonies.

Lets turn the question around: If lets say, we argue that reparations make no sense (because you cannot expect people in 2015 to pay for the suffering SOME of their people inflicted on SOME of the parents of a colonized nation), then on what basis were the German reparations legitimate, and their continued paying of various monies worldwide?
You're not being specific enough to make your main question a useful basis for discussion. For example, Germany voluntarily pays reparations to Israel under the Reparations Agreement between Israel and the Federal Republic of Germany, because the German parliament voted to do it, but apparently doesn't make reparations payments to its former colonies. Why? Because there was no such agreement between the German government and its pre-WWI colonies of Southwest Africa (where there were allegations of genocide), Tanganyika, Kamerun or Togo. I'm not aware of any German reparations involving their pre-WWI colonies in New Guinea or the Pacific Islands, either.

You also wrote:
Politics does seem to color the issue of reparations and who should pay what, not any kind of legal precedent.
Indeed. That's because the obligation to pay reparations can arise in different ways. It can be voluntary, involuntary (Soviet seizures of factories and goods after WWII), or semi-coerced -- for example, the reparation provision imposed on France by the Treaty of Frankfurt (1871), or the obligation imposed on Germany by the Treaty of Versailles (1919). In fact, there's even a book on that subject, The Politics of Reparations and Apologies (2013) by Stephanie Wolfe.

Without a clarification of your questions, taking into account the nature and circumstances of the specific reparations obligation, this thread is heading for a padlock.

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Re: Reparations: Right or Wrong? Should the Colonial Powers also pay them?

#5

Post by Sarge3525 » 24 Jul 2015, 17:05

Thank you David.
To clarify, then the questions would be:
1. if legally speaking the (ex)colonial powers are at risk of having to pay reparations for the damages inflicted during their colonial rule, to the ex-colonized state.

2. If we are basing this legal judgment on international law established at the Nuremberg trials, which penalized the plaintiffs with new law (crimes against humanity, conspiracy to wage war, etc), then surely the ex-colonial powers would be responsible for damages. If this is contested (say, by Great Britain, the French government, even Germany to its former Imperial Reich African colonies, etc), then are we at risk of nullifying the entire Nuremberg trial legal precedent (and Germany would thus stop paying compensation or even request reimbursement)?

I guess what I am talking about here...Are all kinds of punitive compensation, whether jail time or monetary payments (more logical as the defendants of colonial establishment are all long dead).

As for the time period, I am talking 100% of 20th century crimes against humanity/other by the colonial powers (in Africa, Algeria, Indochina, etc), though surely in a court case the reparations/compensation would be linked to the entire period of colonization for said-country.

I just think we need better legal clarification specifically about compensation for the recent neocolonialism of the 19th-20th centuryperiod, and my question at the most basic, is whether ex-colonial powers of this neocolonial period, can be taken to court and be liable for their action in 2015.

For example between France & Algeria, some murky deals went on during the decolonization period (similar deals happened with other colonial powers with their ex-subjects), whereas France managed to escape any liability for its occupation cost (including the extremely high scale of Algerian civilian deaths caused by the French military -this was in the 1960s-), with only the promise of leaving the territory, granting independence, and to finish some civil-engineering projects for free.

But largely speaking...The common belief being that the colonial powers escaped liability with hard negotiation and also of course corrupt local officials, who didn't really care about "International criminal law" (and were settled with payments of various kinds).

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Re: Reparations: Right or Wrong? Should the Colonial Powers also pay them?

#6

Post by David Thompson » 25 Jul 2015, 20:37

Sarge – You asked:
To clarify, then the questions would be:
1. if legally speaking the (ex)colonial powers are at risk of having to pay reparations for the damages inflicted during their colonial rule, to the ex-colonized state.

2. If we are basing this legal judgment on international law established at the Nuremberg trials, which penalized the plaintiffs with new law (crimes against humanity, conspiracy to wage war, etc), then surely the ex-colonial powers would be responsible for damages. If this is contested (say, by Great Britain, the French government, even Germany to its former Imperial Reich African colonies, etc), then are we at risk of nullifying the entire Nuremberg trial legal precedent (and Germany would thus stop paying compensation or even request reimbursement)?

I guess what I am talking about here...Are all kinds of punitive compensation, whether jail time or monetary payments (more logical as the defendants of colonial establishment are all long dead
Question 1. That depends upon whether you're talking about voluntary or involuntary reparations payments. If the reparations payments are voluntary, that depends upon the countries and specific circumstances. If you're talking about involuntary payments as the result of legal action, that's unlikely. For some recent decisions by the world court (International Court of Justice) in which reparations were not ordered against Germany for actions in WWII, see:

Italy & Greece v. Germany (2008) [reparations] ("the compatibility of an act with international law can be determined only by reference to the law in force at the time when the act occurred.")
http://www.icj-cij.org/docket/files/143/16899.pdf

and

Liechtenstein v. Germany (2001) [restitution of specific property]
http://www.icj-cij.org/docket/files/123/8236.pdf commentary at
http://www.law.harvard.edu/faculty/mart ... s_adam.htm

See also:

Case of the Government of the Kingdom of Greece (on behalf of Apostolidis) v. the Federal Republic of Germany (1960)
http://legal.un.org/riaa/cases/vol_XXIX/445-484.pdf

Question 2. Your question starts with several misconceptions
(a)
"If we are basing this legal judgment on international law established at the Nuremberg trials . . ."
"We" (whoever that is) are not. The treaties and agreements under which reparations are required are listed by the International Committee of the Red Cross website at

Laws on the payment of Reparations
https://www.icrc.org/customary-ihl/eng/ ... 0_sectionb and

Export and Return of Cultural Property in Occupied Territory
https://www.icrc.org/customary-ihl/eng/ ... r12_rule41

(b)
"the Nuremberg trials, which penalized the plaintiffs with new law (crimes against humanity, conspiracy to wage war, etc)"
(i) the plaintiffs at the Nuremburg trials were the allied powers (U.S., U.K., U. S. S. R. and France), not Germany.

(ii) The "laws" were not new. Great Britain (and I believe France) charged "crimes against humanity" in the WWI era against agents of the Sultanate of Turkey arising out of the killings of Armenians. Waging war in violation of treaties and diplomatic assurances has been punished (whenever the aggrieved nation could catch the offending person) since the times of ancient Rome.

(c)
". . . surely the ex-colonial powers would be responsible for damages."
What makes it sure? Let's look at some specific questions.

(i) "damages" to whom? To a state not yet in existence when the supposed damages were inflicted? To private parties?

The court exists to settle legal disputes submitted to it by states and to provide advisory opinions on legal questions submitted to it by duly authorized international branches, agencies, and the UN General Assembly, not private persons. See the charter of the Court at

International Court of Justice
http://www.icj-cij.org/documents/index. ... &p2=2&p3=0

(ii) "damages" incurred when? Colonial-era grievances are remote in time. While there may be decisions of the International Court of Justice which cover time periods before WWII or before the International Court of Justice existed, I didn't find any. Perhaps you can.

A claim of urgency doesn't advance the argument, according to the International Court of Justice:
The Court considers that it cannot accept Italy’s contention that the alleged shortcomings in Germany’s provisions for reparation to Italian victims entitled the Italian courts to deprive Germany of jurisdictional immunity. It can find no basis in the State practice from which customary international law is derived that international law makes the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress. Neither in the national legislation on the subject, nor in the jurisprudence of the national courts which have been faced with objections based on immunity is there any evidence that entitlement to immunity is subjected to such a precondition. States also did not include any such condition in either the European Convention or the United Nations Convention. Moreover, the Court cannot fail to observe that the application of any such condition, if it indeed existed, would be exceptionally difficult in practice, particularly in a context such as that of the present case, when claims have been the subject of extensive intergovernmental discussion.
from Italy & Greece v. Germany (2008)
http://www.icj-cij.org/docket/files/143/16899.pdf

(iii) What kind of "damages"? (not necessarily a misconception in your question, but necessary to give posters some idea of the proposed subject matter of the thread)

As for your last (and unnumbered) question:
"Are all kinds of punitive compensation, whether jail time or monetary payments (more logical as the defendants of colonial establishment are all long dead"
(i) Punishment and compensation are two different concepts.

(ii) The same is true of criminal and civil remedies. Note the difference between the charters of the International Criminal Court (at http://www.icc-cpi.int/nr/rdonlyres/ea9 ... nglish.pdf) and the International Court of Justice (at http://www.icj-cij.org/documents/index. ... &p2=2&p3=0)

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Re: Reparations: Right or Wrong? Should the Colonial Powers also pay them?

#7

Post by BenjaminJ » 29 Aug 2015, 03:18

Pay to who? exactly. The vast majority of victims are dead...

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Re: Reparations: Right or Wrong? Should the Colonial Powers also pay them?

#8

Post by David Thompson » 29 Aug 2015, 05:22

BenjaminJ -- You asked:
Pay to who? exactly. The vast majority of victims are dead...
The usual approach, if the question interests you, is to look at the specific reparation agreement or judgment and see for what and to whom the reparation is to be paid. If, for example, the reparations are to be paid for land taken without compensation, payment to a group (members of an Indian tribe, for example), might be appropriate whether the original victims are alive or not.

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