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This book is about the contemporary reparations movement and the case for redress for ongoing anti-Black racism; considered to be systemic in modern society (Feagin and Elias, 2013; Tourse et al, 2018). Despite the undoubted progress made by the civil rights movements in both the US and UK, and the integration of Black citizens within Commonwealth countries, contemporary Black and African-American citizens arguably continue to suffer disadvantage. Evidence consistently suggests that Black citizens are disproportionately represented in the negative aspects of criminal justice; being more likely to be stopped and searched by policing agencies (Bowling and Phillips, 2007; Torres, 2015) to be disproportionately represented in prison populations (Pettit, 2012; Lammy, 2017) and are believed to receive stiffer sentences for offending compared to their White counterparts (Burch, 2015). In addition, Black citizens are more likely to be in the lower socio-economic bracket in society and suffer disadvantage in areas of housing, education, access to certain professions and representation in the higher areas of social life. As Oliver and Shapiro explained when assessing the position in the US, ‘African Americans are vastly overrepresented among those Americans whose lives are the most economically and socially distressed’ (2007: 91). The same is true in the UK, where Black citizens are overrepresented in respect of inner-city, low-income housing, educational attainment, an area where we speak openly of an attainment ‘gap’ (Richardson, 2015) and where Black citizens are rarely represented at the higher levels in criminal justice agencies such as the police, the judiciary and higher political office. In addition, Black citizens regularly raise concerns about disadvantage, unequal or unfair treatment and contend that even when they do play by the rules of society their ability to achieve some types of success may be adversely affected by structural barriers.

The previous chapter identified that reparations have been considered by the US government in cases where the state acknowledged an obligation to pay reparations for harms attributable to government action; namely the harms caused to native Americans and Japanese Americans. In this case, state acceptance of the case for reparations is arguably linked to direct action that harmed citizens and amounted to an infringement of human rights.

This establishes an important consideration in reparations discourse; the notion that where states can tangibly be determined to be culpable for harm to an identifiable group or individuals within a group then reparations may be due at a state level. Such reparations amount to a form of compensation for the harm caused and ‘damages’ owed to the affected group or collection of individuals. This chapter expands on Chapter 4’s discussion of this principle via an in-depth case study of another reparations case; restitution for the Holocaust and the losses suffered by Jewish people during World War II. The nature of these reparations is well documented, and a robust legal and administrative process was created to allow for the making of claims, the administration of payments and review of the operation of the scheme. Records exist concerning the nature of reparations owed and of the affected individuals. Reparations were also given to native Americans where the state has accepted the necessity of providing federal aid and redress as a consequence of state exploitation, and to Japanese Americans for internment following the Pearl Harbor attack.

This chapter further examines the case for reparations through a restorative justice and human rights lens. In doing so, it also applies a critical criminological perspective to examining the nature and type of reparations and the purpose of reparations. This chapter draws on contemporary human rights and international criminal law to critically evaluate conceptions on repairing harm.

The chapter’s discussion identifies and conceptualizes reparations as a human rights issue and draws on selected case law and judicial principles from the ICC, the ECtHR and the International Court of Justice (ICJ) to discuss issues surrounding remedying international crimes such as war crimes, genocide, unlawful discrimination and other human rights abuses including modern slavery, with a focus on how these might be remedied within contemporary justice systems.

While acknowledging that contemporary law cannot be retrospectively applied, this chapter identifies that reparations can take many forms from apology and state recognition of the harms caused by CAH like slavery, through to financial compensation, affirmative action or social rebuilding that contributes to social justice. The chapter also contains analysis using contemporary examples of reparations mechanisms to discuss how international principles could arguably be applied to the issue of ongoing reparations for slavery and its legacy of anti-Black racism.

Reparations arguably have a strong basis in international law since World War II. Governments may agree to reparations through political settlements in order ‘to draw a line under the past and provide new opportunities for victims’ (Moffett and Schwarz, 2018). Reparations, as a legal mechanism for resolving a dispute have the potential to provide for a practical remedy to an identified social or political need while also resolving individual or group rights to a remedy for harm directly caused to them.

This concluding chapter examines contemporary debates in reparations and the reparations movement and returns to the earlier discussion of legal, political and social conceptions on reparations. Differences exist in reparations discourse in the US and UK where different reparations movements and considerations are at play. But the US has experienced a greater level of reparations litigation than the UK and arguably has a more advanced conception on the nature of reparations claims.

This chapter’s core focus is on constructing a criminological theory of reparations, building on discussions in the previous chapters. It sets out the case for reparations as linked to notions of justice, forgiveness and repairing harm even though in one sense this may not be possible from a criminological perspective where those who died as a direct consequence of slavery and anti-Black racism cannot now directly receive a remedy. But reparations can reflect not just the harm caused to those who have died, but also the wider suffering caused to affected groups and their intergenerational trauma. Corrective justice is often about repairing harm with the ideal being that of restoring the aggrieved person to the position they would have been in had the wrong not occurred. There are challenges in doing so for a person who has died or, for example, the victims of a genocide. But some form of reparation can be provided via a form of redress if only by way of an apology or consideration of the harm caused to their family or descendants.

This chapter builds on Chapter 2’s discussion of reparations as a remedy for slavery and anti-Black racism committed as a crime of the powerful and situated within state crime/state-corporate crime via a critical overview and analysis of reparations litigation to date.¹ The Appendix provides a timeline of reparations cases while this chapter contains a brief history of the reparations movement’s litigation attempts and examines the key themes and issues explored within litigation attempts and court judgements.

While it is beyond the scope of this chapter to examine all reparations litigation in depth, an overview of the scope and nature of reparations litigation is provided, supplemented with a discussion of four key cases. These cases illustrate issues arising from claims that have profit or benefit from slavery at their core as well, but some of the selected cases also deal with Jim Crow-era harms as well as ongoing injustice and anti-Black racism. For example, numerous lawsuits were filed against modern American companies in the early 2000s seeking reparations for the companies’ alleged complicity in slavery. The full extent to which the companies were complicit in or benefitted from slavery had arguably only recently come to light prompting a series of lawsuits. These cases were consolidated in federal court in Chicago, Illinois into In re African-American Slave Descendants Litigation, 375 F. Supp. 2d 721 (N.D. Ill. 2005). A broader case, Cato v United States (1995) had earlier sought damages from the US relating to the enslavement of African Americans and subsequent discrimination against them.

Chapter 1 sets out the starting point for this book’s discussion of anti-Black reparations discourse as having its basis in the harms caused by slavery, while acknowledging the contemporary reality of continued racism that is directed at and impacts negatively on Black citizens. This chapter situates the book’s discussion of slavery reparations within criminological discourse, viewing slavery as both a crime of the powerful and as state crime (and state-corporate crime) given the (historical) legality of slavery in both the US and UK and its value to Western prosperity (Wilkins, 2020). As Chapter 1 identifies, slavery was underpinned by the state who in both the US and UK received revenues and taxes from slave labour and were thus complicit in the subjugation of African citizens who became property within the confines of the slave system. Whereas today most states have anti-trafficking laws (and international conventions also exist in this area), at the height of the transatlantic slave trade, the movement and trafficking of persons was deemed legal, profitable and supported the fledgling American economy. Thus, it was supported by state institutions, finance and other corporations and provided an economic contribution to states and private wealth (Neuborne, 2003). Thus, states were arguably complicit in slavery’s human rights abuses for economic reasons as well as for cultural reasons predicated on beliefs that Black non-Europeans were lesser beings for whom slavery and a status as property was considered acceptable. This ideology rejected any notion of Black people as fellow citizens deserving of respect and equal treatment (Epps, 2006).¹

This chapter examines questions of who benefits or benefitted from slavery as well as further examining the nature of disadvantage and inequality. It examines the arguments raised in reparations litigation concerning the benefit gained by companies and other institutions (discussed in Chapter 3) but explores this within the context of specific arguments about enrichment, specifically the legal concept of unjust enrichment. Central to these arguments are questions concerning whether the present-day status of some institutions and even wider society is built on their participation in historic injustices and arguably whether they could be said to have benefitted from participation in discriminatory practices.

As outlined in this chapter and elsewhere in this book it has been argued that reparations should not be paid by present-day institutions for harm caused by their predecessors due to an activity that was ostensibly legal albeit distinctly harmful to a specific community or section of a society. This chapter challenges this notion in part by examining the unjust enrichment argument from a contemporary criminological and zemiological perspective, contending that ideas of the need to remedy contemporary injustice and social harm, arising from the legacy of slavery can be applied to the concept of unjust enrichment. Thus, it argues that the concept of unjust enrichment should be applied not just in the strict context of whether institutions can be said to have acted legally or illegally at the time of slavery, but adopting the Roman Law principle that no one should benefit at another’s expense. In part, this chapter makes an argument for institutions to recognize that their existing wealth and social prestige amount to unjust enrichment, irrespective of any legal arguments that the doctrine should not apply.

This chapter applies a criminological perspective to questions surrounding what is owed by way of reparations, combined with a critical examination of how value is assigned in respect of the harm caused by slavery and anti-Black racism.

Litigation and political arguments suggest that one mechanism for assessing the value owed to the descendants of slaves and their communities is by way of calculating the amount of wages that should have been paid in respect of unpaid labour carried out by slaves. Thus, a straightforward calculation can provide a notional value to serve as the basis for reparations. However, this chapter also extends the discussion of ‘value’ to consider the wider ‘cost’ of slavery and anti-Black racism and its relevance to the reparations debate in both narrow and wide sense. Calculating the wages of slaves and African Americans retained in indentured servitude following emancipation in the US provides for a straightforward mechanism for assigning value to the loss incurred to African Americans and/or their descendants or to Black Britons (and/or their descendants) who contributed to the British Empire but were marginalized in the process. The wider cost debate employs a zemiological approach that considers ‘cost’ in the wider sense of economic loss through social harm, missed opportunities and ongoing disadvantage. Wider conceptions of cost and value examine how Black citizens generally remain in the lower socio-economic brackets in both the US and UK and are arguably still denied access to some of the tools of social mobility.

This chapter also highlights how some aspects of inequality in some African and Caribbean states is arguably a consequence of slavery. Thus, this chapter argues for both narrow and wide conceptions of cost and value to be deployed in reparations discussions.

This chapter examines the issue of harm and suffering, one of the issues identified in reparations litigation and policy debates, in more detail. As Chapter 3 identified through its litigation analysis, some reparations claims have been dismissed in part due to the conception that there is nobody alive today who has directly suffered from slavery and thus in one sense there is no surviving victim who should be compensated. This argument distinguishes the ‘legacy’ of transatlantic slavery as an institution that was directed against Black people who are arguably still feeling its effects, from more recent harms like the persecution of the Jews in the Holocaust of World War II (Rosensaft and Rosensaft, 2002). Holocaust reparations have been paid in part because not only is the Holocaust a more recent memory, but also because several survivors and their children are still alive (Brandler, 2000). As a result, a direct victim who has suffered a tangible injury exists and the harm caused to them can arguably be addressed through reparative approaches that, for example, meet the costs of medical bills and the social care needs and pensions of ageing survivors (discussed further in Chapter 5). The Holocaust was also litigated in an international justice forum in accordance with contemporary international law perspectives (Bassiouni, 1979; Buergenthal, 2003; Bazyler, 2017) whereas transatlantic slavery has not been subject to the same process (discussed further in both Chapter 5 and Chapter 8). Thus, a more coherent legal basis for reparations arguably exists within Holocaust reparations where an identified perpetrator exists whose guilt has been established through normative justice processes.