Ms. Epsy Campbell Barr, President, Permanent Forum on People of African Descent:
I have been told that “people treat you the way you allow them to treat you.” Since I don’t like being ignored, I will persist until I get a response from the Forum.
On December 6, 2022, from the floor of the first session of the Forum, I (Siphiwe Baleka) said, “we call on this Forum to vigorously request an advisory opinion from the International Court of Justice on our status as prisoners of war under the Geneva Convention as well as our right to conduct plebiscites for self determination including the right to secede from the jurisdictions of colonial successor states in the Western hemisphere and form our own independent governments.” My statement, made on behalf of the Balanta B’urassa History & Genealogy Society in America, is included on the United Nations Human Rights Office of the High Commissioner’s webpage for the Forum.
I was thus encouraged to see in the Preliminary Conclusions and Recommendations of the Forum’s first session the acknowledgement under the section Reparatory Justice point 22 that,
“The human rights, legal and institutional grounds for pursuing reparatory justice at the UN, including the International Court of Justice, should be examined to clarify the possibilities of pursuing reparatory justice at the UN and to identify possible gaps” and especially section 22(d) that states, “The General Assembly and other relevant United Nations organs and specialized agencies should consider requesting an advisory opinion from the International Court of Justice on the legal question of reparatory justice for histories and legacies of colonialism and enslavement.”
I was further encouraged when, less than a month after my friend and colleague Kamm Howard also took the floor at the first session of the Forum “requesting that the Forum raise the reparations presentment to an internationally recognized legitimate instrument for laying out reparatory justice claims,” you, as President of PFPAD, made reference in your letter to Pope Francis on January 3rd to Kamm’s efforts delivering the PRESENTMENT TO THE HOLY SEE IN FURTHERANCE OF REPARATIONS at the Vatican on July 18, 2022. This I explained to you in my letter of April 5th, that included a Mandate from the Afro Descendant People Issued to the Permanent Forum on People of African Descent to Request an Advisory Opinion from the International Court of Justice on their Status as Prisoners of War Under the Geneva Convention that was signed by 248 individuals and organizations from over twenty countries, many of them lawyers and activists. The mandate laid out the firm basis of this forum’s ability to make such a request under UN Charter Article 96, Article 65 of the Statute of the International Court of Justice, and Resolution 75/314 establishing the Forum. Resolution 75/314 specifically states that the Forum can “request the preparation and dissemination of information by the United Nations system on issues relating to people of African descent . . .”
On April 11, the PFPAD Secretariat confirmed receipt of my letter as well as the supporting letter from former African Union Ambassador to the United States, H.E. Ambassador Arikana Chihombori-Quao, and stated that “they will be transmitted to the members.” I quite expected the Forum to respond before the start of its 2nd Session. Why wouldn’t I? After all, it was a direct response to the Forum’s preliminary recommendation 22.
On May 9 I sent a follow-up letter that said, “We are looking forward to the 2nd session of PFPAD which is just twenty-two (22) days away. However, we have received no response yet . . . To help us prepare for your upcoming visit to New York, we would like to know the status of our submitted Mandate. What are the necessary steps for PFPAD to initiate our requested Advisory proceedings by filing a written request addressed to the ICJ Registrar?” After a week, we still had received no response, so I sent another email on May 19 pleading, “Please acknowledge receipt of our letter emailed 13:05/2023.” That same day, the PFPAD Secretariat replied stating, “This is to acknowledge receipt of your letter. Please note that it is being transmitted to the Members, and they will respond in due course.” Also that same day, your colleague, Justin Hansford replied,
“Although I cannot speak on behalf of the permanent forum as a whole since the issue has not been discussed formally, I can tell you that on my own behalf I wholeheartedly support the concept. If indeed this is an action that the permanent forum has the standing to take, we should do so, and you can mark me down as a supporter.”
Justin’s response was informative. First, I wondered, why after a month, had the Forum not formally discussed this? This led me to ask some important questions, in light of the fact that the Forum only has 1.5 staffers for its secretariat:
1. What happens to the statements that are sent to PFPAD?
2. How are the statements processed?
3. Who actually reads the statements?
4. What policy or procedures are there concerning statements submitted to PFPAD?
5. How often do the PFPAD members meet to discuss the statements?
6. How was it decided that PFPAD President Epsy Cambell Barr would write a letter to the Pope on January 3?
7. How many people have received any feedback from PFPAD on their statements?
8. How do we know that the input process is nothing more than a performance?
9. Which part of the PFPAD mandate can PFPAD act on now?
10. How will PFPAD decide what it will DO in the next three months?
Second, it appeared as if Forum members doubted their standing to request an ICJ advisory opinion. Short-staffed and unsure of its mandate, I took the liberty of assisting the Forum by drafting a Request to the Registrar of the ICJ for an Advisory Opinion on the Forum’s behalf, requiring only a review and your signature.
As I could not attend the Forum in New York, I submitted a written statement and waited to make a virtual statement. I attended every meeting of the 2nd session online for the entire duration with my “hand up”, but as you know, there was no remote participation from civil society.
Nevertheless, my organized colleagues did manage to get copies of the Request to most of the PFPAD members. Maynard Henry and DaQuan Lawrence managed to speak to Justin Hansford while Pastor Elías Murillo Martínez referred to the Mandate and expressed his support during one of the side events. As both my written and prepared virtual statement said,
“We believe that a “crowning jewel” of this second session would be the ceremonial signing of the Request, showing a true working partnership between people of African descent, their civil society organizations, and this forum while demonstrating that it does not take months and years to get things done.”
President Barr, if I was disappointed that I wasn’t able to make a statement virtually, I was dis-satsified and frustrated that you didn’t sign the request. Many PFPAD Members, including yourself, and other states members and distinguished delegates called for “concrete actions” during the opening of the 2nd Session.
I find it ironic that while you were calling for urgent, concrete actions by UN organs and member states, we, civil society, were calling on YOU to take concrete action by exercising the mandate establishing the Forum and signing the Request to the Registrar of the ICJ that was prepared for you signature. To my great discontent and dismay, no mention or explanation was made in the closing meeting on why you yourself failed to take the simplest of concrete actions: signing a document. Rather, Gaynel Curry made the following statement on behalf of PFPAD:
Here, I call to your attention a critical distinction between adudicating a claim at the ICJ and requesting an advisory opinion.
As it is true that the Rome Statute of the International Criminal Court (ICC) as well as the ICJ are inadequete for adjudicating reparatory justice claims concerning the enslavement of African people and subsequent violations of their human rights, including crimes of genocide and ethnocide, there is nothing that prevents the ICJ from exercising its mandate to give an advisory opinion on any legal question. On January 20, 2023, the General Assembly of the United Nations requested an advisory opinion from the Court in its resolution A/RES/77/247 on “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem”. Moreover, on April 13, 2023 the Court authorized the African Union to participate in the proceedings. If the ICJ can answer legal quetions pertaining to the Palestinian people, certainily it can also answer legal questions pertaining to people of African Descent and in particular, the Afro Descendent people who are prisoners of the Dum Diversas war. Thus, in light of the reparatory justice limitations and restrictions at both the ICC and ICJ, requesting an ICJ advisory opinion is the best practical action at this time.
Additionally, Michael McEachrane presented the 2nd Session of the Forum’s Preliminary Conclusions and Recommendations. Point 16(b) calls for a specialized international tribunal constituted to adjudicate reparations claims following the proposal from Barbados and 16(c) calls for an international UN Task Force of Reparatory Justice, ostensibly following the proposal made by Justin Hansford in his opening address which is worth quoting:
“So I come to you today with a novel proposal, that we begin to think our own thoughts, propose our own vision of justice, and implement that justice, as part of the Permanent Forum on People of African Descent. So I also propose today that we create a new Bar Association, including lawyers and non-lawyers, to discuss what it means to be repaired in 2023 for crimes that have been done to us and continue to be done to us for over 500 years. . . .
So for your consideration, Madam Chair, I propose that today we create a new community of legal thinkers that is not limited to lawyers, but includes anyone who is passionate about justice. And we come together and demand that many of the states in this room that have benefitted from the legacy of our oppression start the process of apology and reparation, but not on their terms, but on our terms.”
So it is with some chagrin, therefore, that I am compelled to write to you because, upon close examination, Justin Hansford has proposed what I have already done - organized a new community of legal thinkers, passionate about justice, thinking our own thoughts and vision of justice on our own terms. Of the 248 signatories to the Mandate issued to PFPAD on April 5, among the vast number of activists were seven members of national reparations commissions, four professors, and at least three lawyers. Rather than recognize this New Bar Association initiated by the people and African civil society themselves and has come up with its own legal strategy to be implemented, the Forum chose to ignore this, and start from scratch as though it had never received our Mandate from April 5th.
The Forum stated that its Preliminary Recommendations will be included in a report to the Human Rights Council and the UN General Assembly in the fall of this year. Thus, the Forum sees inputs from civil society merely as recommendations to be forwarded to the Human Rights Council and the UN General Assembly. However, the Mandate Issued to the Forum Requesting an Advisory Opinion from the ICJ is of a different nature: it specifically references the Forum’s mandate under UN Resolution 75/314 that enables it to “request the preparation and dissemination of information by the United Nations system on issues relating to people of African descent . . .” Since the people’s “New Bar Association” has studied the Forum’s mandate and shown without a doubt that the Forum has standing to make a request for an ICJ advisory opinion, it behooves you, as President of the Forum, to explain why, given such a people’s mandate, you refuse to exercise the Forum’s right to do so. This is especially poignant given that a similar request was made of the ICJ in January of this year on behalf of the Palestinian people vis-a-vis Israeli policies affecting them. Significantly, on April 13, the African Union was invited to take part in these advisory proceedings. This begs the question: are not the people of African descent deserving of such consideration of their legal questions? Will the Forum do nothing on its own without permission from the Human Rights Council? What good is the Forum if it still requires us to go through the Human Rights Council, which has always been there and has never asked the ICJ for an Advisory Opinion on our status....?
Before the creation of this forum, Afro Descendents needed a nation state to raise their case at the ICJ. Malcolm X died for this. With a stroke of a pen, today, sixty years later, you can complete the unfinished business of Malcolm X.
Madam President, you made the decision to act, to send a letter to Pope Francis. For this I commend you although Kamm Howard notes that there has been no report on results from Vatican interaction, no firm statement of agreement to consult with Civil Society on initiatives that the Forum may join that civil society initiated and are ongoing before the Forum engaged the initiatives - like the Vatican action. I ask, what made you decide to send the letter to Pope Francis?
In closing, I urge you to take concrete action like you did after the 1st session of the forum by signing the letter of Request for an ICJ Advisory Opinion which you and the members of the Forum just received. I repeat the words of former African Union Ambassador to the United States, H.E. Ambassador Arikana Chihombori-Quao, whose letter to the Forum closed by stating,
“We are certain that such an effort by [the Forum] will help solidify the Forum’s reputation as a champion of African people everywhere.”
Respectfully,
Siphiwe Baleka,
Founder, Balanta B'urassa History & Genealogy Society in America (BBHAGSIA)
Coordinator, 8PAC1 Agenda Committee,
Member, Inclusive Policy Lab of the UNESCO E-team for the People of African Descent and the Sustainable Development Goals
Member, International Civil Society Working Group for the United Nations Permanent Forum of People of African Descent (ICSWG-PFPAD)
Member, NCOBRA International Affairs Commission & Health Commission
Coordinator, #savesoil Guinea Bissau
Coordinator, Lineage Restoration Movement (LRM)
WhatsApp Guinea Bissau +245 956 931 329
