On Wednesday, December 7th, The Movement4Black Lives, Global Black, and the Open Society Justice Initiative hosted a side-event during the launch of the Permanent Forum of People of African Descent in Geneva, Switzerland. The theme of the event was “Adding to the Action: The Role of Strategic Litigation in Movements for Reparations” and aimed at growing an international network of litigators, organizers and other human rights leaders responding to our communities’ call for reparations. The event invitation stated, “Collectively, we’ll map the global landscape of successful action, strategic opportunities and share some of the legal and political barriers we face.”
According to the Open Society Justice Initiative,
“Our definition of strategic combines community engagement, in-court-action, and out-of-court advocacy to seek systemic change. It is often rooted in preparatory research, documentation, and dialogue with affected communities to identify pathways that include, but are not limited to, legal action. While some cases may attract large-scale media coverage, others may quietly lay the groundwork for subsequent efforts whose cumulative impact is visible over time. Our measure of impact in strategic litigation is not confined to a formal pronouncement from a court. In some instances, the threat of litigation can create space for marginalized voices, even the playing field, spotlight abuse, , prompt public pressure, grant legitimacy to long-silenced claims, and narrow the range of available justifications for defenders of oppression.”
This article discusses the most promising reparations strategic litigation opportunities that are related to the newly developed sciences of transgenerational epigenetic effects of slavery, ancestral DNA testing, ethnocide and prisoner of war claims under the Geneva Convention.
The Deadria Farmer-Paellmann Reparations Case
Deadria Farmer-Paellmann spent five years digging for evidence that tied Corporate America to pre-Civil War slavery. Farmer-Paellmann v. Fleetboston Financial Corp. was argued on March 26, 2002. It was the first class-action lawsuit filed to seek compensation from US insurance companies who previously profited from the enslavement of African peoples. The case was dismissed in 2004, amended, resubmitted and dismissed again in 2005 on the basis of the statute of limitations and other considerations, while the Supreme Court refused to hear the appeal in October 2007.
Tara Kolar Ramchandani, in Judicial Recognition of the Harms of Slavery: Consumer Fraud as an Alternative to Reparations Litigation, recognized the value of strategic reparations litigation, writing.
“These cases have been dismissed for a variety of procedural and jurisdictional reasons, including statutes of limitations, the political question doctrine, sovereign immunity, and lack of standing—hurdles preventing such cases from being decided on their merits. . . . Due to the fact that the original harms of the “peculiar institution” were inflicted against men and women who lived generations ago, it is difficult to surmount threshold procedural issues, and access to the courts is barred for both private and public rights of action.
On December 13, 2006, the door to the courthouse reopened with the possibility of claims based on current violations of consumer fraud and protection acts. The right of action under these acts provides a new hope for recognition of the great harms inflicted through slavery by the judicial system. In In re African American Slave Descendants Litigation, the Seventh Circuit reviewed the district court’s dismissal of a class action reparations suit brought by African American descendants of slaves.
This recent development argues that although claims under consumer fraud and protection statutes may not garner large sums of money, they should be vigorously pursued for four reasons:
(1) such claims may present the only avenue for judicial recognition and vindication of the evils of slavery;
(2) publicity and media campaigns following lawsuits may spur a larger movement toward non-judicially enforced reparations;
(3) as has happened with previous reparations suits, the filing of suits may lead to out-of-court settlements; and
(4) recognition of the injuries inflicted upon plaintiffs will provide a dignitary value previously unrecognized by the American justice system.
While claims under consumer fraud may provide an alternative to the more traditional reparations claims, there is an entirely new class of reparations claims that appear to have even greater promise.
Dr. Kenneth Knave and Judge Norgle’s Decision
In 2020, Dr. Kenneth Knave's published Competent Proof: The Legal Standing for African Americans in the Battle for Reparations reviewing Judge Norgle's decision in the Deadria Farmer-Pellmann case. Dr. Knave correctly identified that
"Judge Norgle ended the document with V. CONCLUSION, stating that '(the) Plaintiffs' claims, as alleged in their Complaint, FAIL based on numerous well-settled legal principles. Mr. Norgle makes five legal statements that summarize his arguments which are in agreement with the Defendants' Motion to Dismiss:
1. Plaintiffs' claims are beyond the constitutional authority of the Court (Federal). Plaintiffs lack essential constitutional standing requirements to bring their claims because they FAIL TO ALLEGE ANY SPECIFIC CONNECTION BETWEEN THEMSELVES AND THE NAMED DEFENDANTS.
2. Prudential limitations prohibit the court from deciding such BROAD QUESTIONS OF SOCIAL IMPORTANCE when such claims are brought on behalf of absent third parties, as Plaintiffs attempt here.
3. The POLITICAL QUESTION DOCTRINE bars the (federal) court from deciding the issue of slavery reparations, an issue that has been historically and constitutionally committed to the Legislative and Executive branches of government.
4. Plaintiffs' claims fail to fall within the recognized legal statutes of limitations.
5. Plaintiffs' Complaint FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.”
Making a Successful Reparations Claim By Overcoming Judge Norgle’s Five Causes for Dismissal
When you study Judge Norgle's 76-page statement on the dismissal of the Deadria Farmer-Paellmann reparations case, you will learn that the way to overcome the state's motion to dismiss is by naming the specifics - who, what, where, when and how. Paellmann's case was dismissed because it didn’t prove any specific connection between any of the defendant's (the insurance companies involved in the slave trade) and the plaintiffs (the victims).
So we learned from this that that is the FIRST thing you have to do - show the specific connection between plaintiffs and defendants. Judge Norgel was basically giving us a roadmap of how to WIN by staying away from legal positions they have already settled.
Thus, the way to overcome #1 is to make the specific connection between plaintiff and defendants.
The way to overcome #2 is to switch from a BROAD, COLLECTIVE argument to a narrow, INDIVIDUAL argument.
The way to overcome #3 is to switch from a traditional reparations argument to an argument based on prenatal, preconception, and prima facie torts - i.e. transgenerational epigenetic effects.
The way to overcome #4 is to show that the crime is current since they have never repaired the genetic damage - i.e. the slave DNA was never ended and is still harming us. [Also, there are no statutes of limitation concerning crimes against humanity - i.e. ETHNOCIDE]
The way to overcome #5 is to calculate the actual economic value of the labor of your ancestors that were enslaved (which can be done through genealogy work - I have done it) as well as the value of the unjust enrichment; identify specific territory to be repatriated to; and calculate the cost of the social, cultural and political claims under the international conventions.
The key to the above, the mechanism for linking the harms of slavery to the present generation, is utilizing the transgenerational epigenetic effects of slavery and genealogy.
Transgenerational Epigenetic Effects of Slavery
Kenneth S. Nave, MD states,
“Science has proven that environmental conditions shape the structure and function of highly specialized cells in key areas of the body. These changes occur in an extension or appendage to the gene known as the Epigene. The Epigene is an extension of the gene that responds to biochemical signals emanating from the environment. These signals cause changes to the gene. These epigenetic changes to the gene influence and change the cellular genetics of the cell. . . . Under certain environmental conditions, the epigenome programs or ‘reprograms’ the genetics of the cells of the limbic system which, in its most fundamental definition, is the center of all human thought, emotion, behavior, learning and, when present, psychosocial pathology. . . This environmental shaping is usually pathologic leading to physical disease, social dysfunction, and mental illness. Most significantly to the plight and social conditions of the descendants of former slaves is the scientifically proven fact that the changes to the epigene created by environmental pathology is passed down to the descendants of those initially impacted by environmental gene shaping. . . . As it relates to the cells of the brain, this cellular shaping can lead to problems with learning, memory, and mental health. As it relates to cells of the heart and cardiovascular system, these changes can lead to heart attacks, strokes, and kidney failure. Endocrine cells genetic shaping can lead to diabetes and metabolic syndrome. . . . This environmental shaping of the gene is well confirmed and is also recognized to be transmissible at least to the fourth generation of one’s descendants and beyond. That means that any environmental hardship experienced by your ancestors and causing this genetic environmental shaping could possibly, and is probably, transferred down to you, their descendant, and likewise your progeny, for generations. This is The Transgenerational Epigenetic Effect (TGEE).”
Developing Cause of Action for the Baleka Case against the United States Using TGEE, Genealogy, and Tort Claims
The 1st amendment of the US Constitution guarantees the right to petition the government for a redress of grievances. The 4th amendment guarantees the right to liberty. The 13th amendment abolishes slavery and involuntary servitude and the 14th amendment guarantees the equal protection of the laws. Here, then, is the construction of a tort claim.
Black’s Law Dictionary, 11th Edition:
1. Tort-claims act. (1926) – A federal or state statute that, under stated circumstances, waives sovereign immunity and allows lawsuits by people who claim they have been injured by the government or its agents and employees
2. Federal Tort Claims Act. (1946) – A statute that limits federal sovereign immunity and allows recovery in federal court for tort damages caused by federal employees, but only if the law of the state where the injury occurred would hold a private person liable for the injury. 28 USCA $$ 2671-2680 – Abbr. FTCA
3. Preconception tort. (1977) – A tort that is committed before the victim has been conceived.
4. Prenatal tort. (1960) – A tort committed against a fetus. If born alive, a child can sue for injuries resulting from tortious conduct predating the child’s birth.
5. Prima facie tort. (1938) – An unjustified, intentional infliction of harm on another person, resulting in damages, by one or more acts that would otherwise be lawful. Some jurisdictions have established this tort to provide a remedy for malicious deeds – esp. in business and trade contexts – that are not actionable under traditional tort law.
6. Negligent tort. (1865) – A tort committed by failure to observe the standard of care required by law under the circumstances.
7. Business tort. (1935) – A tort that impairs some aspect of an economic interest or business relationship, causing economic loss rather than property damage or bodily harm. Business torts include tortious interference with prospective advantage, unfair business practices, misappropriation of trade secrets, and product disparagement.
Because I have done the genealogy work to identify my ancestor that was captured from his ancestral homeland and trafficked across the Atlantic and enslaved in the Carolinas, I can now make the following claims:
1. Tort claims act, which allows lawsuits by people who claim they have been injured by the government, gives me cause of action.
2. My complaint is based on a prenatal tort. I am claiming that the State of South Carolina committed tortious conduct that constituted a preconception tort that resulted in injuries (epigenetic mutations) at the moment I was born alive.
3. The Negro Laws of South Carolina (1740) establishing the slave manufacturing process that relied on torture and was used against my great, great, great, great, great grandfather Brassa Nchabra is a prima facie tort that continues to cause injury through the Transgenerational Epigenetic Effect producing biopsychosocial disorders and the Syndrome of Sociopathy.
4. The United States 111th Congress (S.Con.Res.26) acknowledged the prima facie tort, stating, “The Congress (A) acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow laws; (B) apologizes to African- Americans on behalf of the people of the United states, for the wrongs committed against them and their ancestors who suffered under slavey and Jim Crow laws; ”
5. The United States government committed a negligent tort after the Emancipation Proclamation when it passed the 13th amendment which only terminated the property rights permitting whites to possess or distribute slaves, but allowed them to legally retain and benefit from the intellectual property rights to dehumanization, slaves and slavery because the concepts, as intellectual properties, are legally distinct and separate from the property rights. Intellectual Property rights were entirely neglected. The United States neglected its moral, legal and scientific responsibility to provide and enforce a scientific method to reverse engineer the epigenetic status of all living slave mutations derived from the original slaves manufactured by the American States and its licensees. This neglect created a preconception tort and the prenatal tort of epigenetic damage at the moment of my birth.
6. The United States continues to commit a negligent tort by its failure to make meaningful and undertake measures, by virtue of Article VI of the United States Constitution, to implement its obligations under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights under the framework of the Declaration on the use of scientific and technological progress in the interests of peace and for the benefit of mankind PROCLAIMED BY GENERAL ASSEMBLY RESOLUTION 3384(XXX) OF 10 - NOVEMBER 1975 and the United Nations Commission’s Appendix 1. Resolution 1986/9 outlining the USE OF SCIENTIFIC AND TECHNOLOGICAL DEVELOPMENTS FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS.
7. Specifically, Article 8 of Appendix 2 reads, “All States shall take effective measures, including legislative measures, to prevent and preclude the utilization of scientific and technological achievements to the detriment of human rights and fundamental freedoms and the dignity of the human person.” Upholding the legal retention and benefit from the intellectual property rights to dehumanization, slaves and slavery is a violation of my Constitutional rights. The United States government’s failure to take effective measures, including legislative measures, to repair the epigenetic mutations and the Transgenerational Epigenetic Effect of the dehumanization process is a negligent tort subject to a remedy.
8. The prima facie, preconception, prenatal and negligent torts outlined above created a business tort as evidenced by the collective racial wealth gap which I continue to suffer.
9. The United States 111th Congress Disclaimer stating that “Nothing in this resolution (S.Con.Res.26) (A) authorizes or supports any claim against the United States” violates my 14th Amendment right to equal protection under the law and creates another negligent tort.
CONSTRUCTING MY CIVIL RIGHTS CLAIM
1. Preconception and prenatal torts producing epigenetic mutations, the Transgenerational Epigenetic Effects of dehumanization and slavery, and the Syndrome of Sociopathy violated my 13th amendment right to be free from slavery at the moment of my live birth and continues to the present.
2. Negligent torts upholding the legal retention and benefit from the intellectual property rights to dehumanization, slaves and slavery violated my 13th amendment right to be free from slavery at the moment of my live birth and continues to the present.
3. Black’s Law Dictionary, 11th Edition, defines liberty as “1. Freedom from arbitrary or undue external restraint, esp. by a government <give me liberty or give me death>. ‘[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.’ Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626 (1923).”
4. Preconception and prenatal torts producing epigenetic mutations, the Transgenerational Epigenetic Effects of dehumanization and slavery, and the Syndrome of Sociopathy violate my 5th amendment right to life, liberty, and property.
5. Negligent torts upholding the legal retention and benefit from the intellectual property rights to dehumanization, slaves and slavery violated my 5th amendment right to life, liberty, and property.
6. The United States failure to undertake measures, by virtue of Article VI of the United States Constitution, to implement its obligations under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights is a negligent tort that violates my 14th Amendment right to equal protection under the law.
Utilizing the Geneva Convention and Ethnocide in International Jurisdiction
The Geneva Conventions says,
"1949 Geneva Convention: Article 4 (1) defines prisoners of war as “Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.”
Article 5 states,
“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation."
SO IF YOU WANT TO MAKE A SUCCESSFUL CLAIM UNDER THE GENEVA CONVENTION, YOU NEED TO IDENTIFY WHEN YOU FELL INTO THE HANDS OF THE ENEMY.
If you can't answer that, then the Convention makes the following provision -
"Should doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy protection of the present Convention until such time as their status has been determined by a competent tribunal.”
Now, it can be argued that Afrodescendent has been determined already by a competent tribunal -- the Durban Declaration and the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in the city of Santiago, Chile in the year 2000 and it was the term adopted in 2002 by nineteen (19) countries at the United Nations Conference for the Rights of Minorities in La Ceiba, Honduras.
The idea is to file a case in domestic court. If it gets past a motion to dismiss, great. We have made an advance. If not, that is great, too because I can now claim I have exhausted all domestic remedies to exercise my 1st amendment right to bring grievance against the United States for damage resulting from the ETHNOCIDE of my 5g Great Grandfather Brassa Nchabra, which damage continues unrepaired in my DNA. Having exhausted all domestic remedies, I can now bring my individual human rights case before international tribunals, especially the Inter American Commission on Human Rights (IACHR) which is the only avenue for American citizens to bring individual human rights cases.
Let us look now at a similar effort that came out of Martinique.
Examining the International Movement For Reparations Association (MIR) Case Against France
Law 2001-434 of 21 May 2001 of Africle 1 states that
“The French Republic recognizes that the transatlantic slave trade and the Indian Ocean slave trade on the one hand, and slavery on the other hand, perpetrated from the fifteenth century onwards, in the Americas and the Caribbean, in the Indian Ocean and in Europe against the African, Amerindian, Malagasy and Indian populations constitute a crime against humanity.”
Considering the French State responsible for the crimes against humanity that were the slave trade and slaver, the associations known as the International Movement for Reparations in Matinique (MIR) and the World Council of the Pan African Diaspora (CMDPA) summoned the French State before the Fort-de-France Regional Court by deed dated 30 May 2005. In the course of the proceedings, 57 individuals intervened. On the basis of Law No. 2001-434, those applicants - both on behalf of their successors and on their own behalf and the people of Martinique, initiated proceedings before the French judicial courts for their claim for damage resulting from the slave trade and colonial slavery. MIR and CMDPA asked for
- an expertise, at the expense of the State, entrusted to a panel of experts and intended to assess the damage suffered by the Martinican people,
- a provision of 200 billion euros managed by the department and the region, pending the constitution of a foundation,
- in addition to the sum of € 5,000 on the basis of Article 700 of the Code of Civil Procedure.
The case was debated at the public hearing of 29 September 2017 and judgement given December 19, 2017. The right to compensation to which everyone was legitimately entitled under the abovementioned law of 21 May 2001 was reduced to nothing by the finding that the applicants’ claims were time-barred, and therefore inadmissable. Of considerable significance is that the decision dismissed the actions of MIR and CMDPA stating,
“they did not justify a personal and current injury sufficiently related to the crimes suffered by those of their ancestors who had been victims of trafficking or slavery,’ and “if it were accepted the claimed right would be rebourn with each generation, thus ensuring the imprecriptibility* of the harmful effects of the crime over time. . . . the first judges considered exactly on the merits that they did not justify, nearly two centuries after the definitieve abolition of slavery, suffering individually from a damage of their own that could be directly and certainly linked to the crimes suffered by those fo their ancestors who were victims of the slave trade and slavery.”
*In law, a right or obligation which cannot be extinguihsed by negative prescription (the barring of adverse claims to property after a specified period of time has elapsed). . . even if the prescriptive period has expired, the right or obligation will continue to subsist.
An appeal was brought against the decision and by judgment delivered on 17 April 2019, the Court of Cassation dismissed the appeal stating that,
“The Court of Appeal had therefore decided exactly that this action, in so far as it concerned facts which had ended in 1848 and despite the suspension of the limitation period util the day on which the victims or their successors had been ablet to act, was presceded in the absence of demonstration of an impediment which would have lasted for more than a period of time - a hundred years.”
An appeal against the judgement was thus made with the European Court of Human Rights (see below). Meanwhile, on 20 March 2014, forty-eight natural persons, MIR, the association Comite d’organisation du 10 Mai and the International Committee of Black Peoples (CIPN) summoned the judicial agent of the State to assess, repair and compensate for the crimes of slave trade and slavery. By judgement delivered on 4 April 2017, the Fort-de-France Regional Court declared the inadmissibility of the claims of MIR and dismissed all of the applicants’ other claims. Here, the decision introduced a new concept, namely that,
“The Act of 26 December 1964, which provided for imprescriptibility for crimes against humanity, referred to acts committed during the Second World War and was retroactive only in this very particular context.”
In essance, the state of France was willing to illegally discriminate between Jewish claims and African claims simply on the basis that the Jewish claims were based on events that happened 100 years AFTER those of the Africans. . . .
On 30 May 2017, the appellants appealed againts the court’s decision. The case was referred to pre-trial preparation and by separate pleadings lodged on 5 April and 18 September 2018, the appellants referred to the Court two prioritiy questions of constitutionality. The appellants
“essentially accused the trial judges of having violated the provisions of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits any discrimination on grounds of sex, race, colour or religion, and on the other hand of having excluded their righ to compensation. This constitutes discrimination that undermines the principle of black human rights, and finally refuses to recognize this principle, which is inherent in the recognition of the slave trade and slavery as crimes against humanity, which undermines the principle of equality in law and dignity of human beings as well as the fundamental principles constituting the common ground of all civilized peoples and nations. . . . such motivations stem from an ‘ideology of law rooted in a tradition of denial of human rights.’”
On the inadmissibility alleging the absence of genealogical proof of the ancestry of natural persons, the court noted,
“All claim their status as descendants of the enslaved deportees and thus to have suffered damage, both as beneficiairies and in a personal capacity, for which they seek compensation. They add that although they cannot justify genealogy established in a precise and proven way, they nevertheless remain Afro-descendants from the slave society, which did not vanish with the decree of abolition. . . . the notion of ‘descendant’ refers to that of heir to a given society with its characteristics inscribed in economic, social and cultural structures marked by the reproduction and continuity of relationships and models originating in the slave trade and slavery, and that one can therefore limit oneself to the strict ‘bio-genealogical’ level, rendering the plea of inadmissibility advanced by the judicial agent of the State inoperative. . . . . They also argue that the denial of the normative nature of this text contravenes the principle of equality before the law and the principle of the right to reparation available to any wrong, by excluding any possibility of an action for compensation and by preventing the application of the principle of imprescriptibility recongized to crimes against humanity. . . . They add that this text, which defines trafficking and slavery as crimes against humanity, is indeed a law of criminal incrimination that cannot be deprived of normative scope either because the perpetrators of the crimes are dead or because the State is criminally irresponsbile. For them, this does not erase either the qualification or the reality of the crime, nor the possibility of an actions for compensation. They conclude that this must lead to the recognition of the principle of imprescriptibiltiy of crimes against humanity and that of the retroactivity of the laws qualifiying them. They therefore consider that the first judges violated these principles by applying rules contrary to the international treaties to which France had subsribed, but also contrary to the case-law of the Criminal Division of the Court of Cassation of 26 February 1984 at the end of which by nature any crime against humanity is imprescriptible and escapes the principle of non-retroactivity. They thus assert that these general principles of law must be applied not only to the acts of the Axis powers during the Second World War but to all the facts classified as crimes against humanity as reflected in Articles 7(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 15(2) of the International Covenant on Civil and Political Rights. . . . They therefore consider . . . the collective conscience making any material reparation impossible by deduction, has placed the victims of these crimes, unlike those of the crimes committed by the Axis powers, in the impossibility of acting.”
MIR and CIPN also raised the issue of transgenrational epigenetic effects. The court noted,
“They also refer to previous studies carried out at the University of Cambridge and advances in epigenetic science over the past twenty years which have highlighted the influence of the human environment on genetics and the existence of transmission phenomena through generations of historical collective trauma of a dehumanizing nature. They conclude that the transgenerational prejudice covers both material damage resulting from the absence of any patrimonial transmission for the freedmen referred to in the 1848 decree, but also moral prejudice, which lies in the deprivation of the right to a genealogy and in the acculturation of current generations with regard to their culture of origin, the notion of ‘creolity’ being only a product of colonization and an imposed culture.”
By two judgments delivered on 11 February 2020, the Fort-de-France Court of Appeal declared these questions inadmissible. The proceedings were closed on 13 October 2020. In its decision, the court stated,
“ . . . it should be noted that Article 121-2 of the Criminal Code lays down the principle of the State’s non-criminal responsbility and that the tools of international law were designed only to judge and punish natural persons guilty of crimes against humanity. On this basis if Articles 7.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 15-2 of the International Covenant on Civil and Civil rights establishing the possibility of trial and punshment of a person guilty of an act or omission which, at the time when they were committed, were criminal according to the general principles of law recognized by the civil nations, Such provisions are applicable only to natural persons in the absence of any international recognition of the criminal responsibility of States for crimes committed during periods of slavery and the slave trade. The resolution of 16 december 2005 adopted by the United Nations General Assembly merely recommended that States take into account and promote respect for the fundamental principles and guidelines and bring them to the attention of members of the executive, legislative, and judicial organs of the State, victims and their representatives, human rights defenders and lawyers, of the media and the general public without conferring on them any coercive character and without really being implemented in the former slave powers.
Similarly, it may be noted that the criminalization of crimes against humanity has its origin in the London Agreement of 8 August 1945 which established an international military tribunal to try the major war criminals of the European Axis countries for murder, extermination, enslavement, deportation, and any other inhuman act committed against any civilian population, before or during war, or persecution on political, racial or religious grounds, when such acts, whether or not they constituted a violation of the domestic law of the country where they were committed. However, this tribunal had jurisdiction only to try major war criminals from the Axis countries.
In addition, the Act of 3 January 1995 implementing United Nations Security Council Resolution 827 of 25 May 1993 establishing an international tribunal for the purpose of trying persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991, or the Act of 22 May 1996 adopted for the implementation of United Nations Security Council Resolution 955 of 8 November 1994 establishing an international tribunal for the purpose of trying persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda, as well as Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States between 1 January and 31 December 1994, also apply only to natural persons.
Moreover, although these offenses are retroactive, they derogate from international law which enshrines the legality of offences and penalties and the non-retroactivity of the more severe criminal law as set out in Article 8 of the Declaration of the Rights of Man and of the Citizen, 7-1 of the European Convention on Human Rights, 15-1 of the International Covenenant on Civil and Political Rights, the principle of non-retroactivity recognized by the Constitutional Council on 21 January 1997 and the provisions of articles 111-3 and 112-1 of the Criminal Code. Therefore, in the absence of a general derogation or permissible exception to the principle of non-retroactivity of the more severe criminal law, it is necessary to examine the admissibility of the plaintiff’s action solely in the light of the provisions of Article 10 of the Code of Criminal Procedure and the rules of limitation in civil matters refferred to above.”
In respect to the argument provided by the science of transgenerational epigenetic effects of slavery, the court stated,
“Nevertheless, none of the admissbile parties produces sufficiently convincing evidence capable of establishing that they suffer individually from an injury of its own which can be directly and certainly linked to the crimes suffered by their ascendants who are victims of trafficking and slaver. The only references to academic works highlighting trangenerational prejudices linked to the influence of the human environment on genetics and the existence of phenomena of transmission of historical collective traumas of a dehumanizing nature, but also the only general references to material and moral prejudices experienced by all descendants of slaves (in particular the absence of transmission of heritage, the deprivation of a right to a genealogy and the persistence of an acculturation of current generations) do not make it possible to establish for each of the natural persons the existence of a certain, direct and personal prejudice in connection with the transatlantic slave trade and slavery. The first judges will therefore also be approved in that they have rejeted the requests of these heads as well as those of the Organizing Committee of May 10 and the International Committee of Black Peoples who come in support of the applicants natural persons without demonstrating their prejudice.”
European Court of Human Rights
Finally, the European Court of Human Rights in reviewing the case, stated on October 10, 2019,
“21. In the present case, although the provisions of the Act of 21 May 2001 describe the acts of slavery and the slave trade as crimes against humanity, they do not provide for any mechanism for compensating the direct and indirect victims of these acts contrary to Article 4 of the Convention.
Such an absence undoubtedly conflicts with this provision, which it has been recalled creates positive obligations on the Contracting States, in particular as regards the existence of a legal and regulatory framework capable of enabling victims to assert their rights in practice.
In the absence of specific legal provisions relating to compensation for these acts of slavery, the French courts consider proceedings brought by the descendants of slaves to be unreceivable because they are time-barred.
Yet, the principle of prohibition of slavery would be deprived of an essential part of its effects if it did not include, as an indispensable corollary, the right to reparation of the victims of those acts.
It should be emphasized that "to deny the right to reparation" is to "deny the dignity of the individual and therefore to deny man" (L. Boisson de Chazournes, J.-F. Queguiner and S. Villalpando (dir.), Crimes de l'histoire et reparations: les réponses du droit et de la justice, éd. Bruylant, éd. de l'Université de Bruxelles, Coll. de Droit international n° 57, 2004, p. 85 in E. Lambert-Abdelgawad, RSC, 2005, p. 454).
Conversely, this legal impasse has the effect of exonerating the French State from its personal responsibility for the damage caused by this crime against humanity.
France should therefore have provided for provisions setting up a specific compensation mechanism derogating from ordinary law; all the more so since this was the primary purpose of the Law of 21 May 2001. . . . Therefore, by classifying the acts as slavery without drawing the consequences from the point of view of reparations, France disregarded the positive obligations derived from the need to ensure the effectiveness of the principle of prohibition of acts of slavery.
Consequently, and in the light of all the foregoing, the applicant has suffered a violation of Article 4 of the Convention, a violation attributable to the respondent State. . . .
21. In the present case, discrimination between, on the one hand, the victims of the slave trade and, on the other, the victims of other crimes against humanity, including the Holocaust.
Indeed, on the one hand, it is accepted in French law that crimes against humanity are, by nature, imprescriptible.
Thus, under the terms of the single article of the Act of 26 December 1964 establishing the imprescriptibility of crimes against humanity: "Crimes against humanity, as defined by the United Nations resolution of 13 February 1946, taking note of the definition of crimes against humanity, as set out in the Charter of the International Tribunal of 8 August 1945, are imprescriptible by their nature".
Articles 213-4 and 213-5 of the Criminal Code confirm that "the perpetrator or accomplice of a crime referred to in this subtitle may not be exonerated from liability solely for the fact that he has performed a time barred act [...]".
These texts implement principles set out in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity as adopted by the United Nations (UN) on 26 November 1968, according to which "The application to war crimes and crimes against humanity of the rules of domestic law relating to the statute of limitations for ordinary crimes is of deep concern to world public opinion because it prevents those responsible for such crimes from being prosecuted and punished".
The Court of Cassation therefore confirmed that "the principle of imprescriptibility prevents a rule of domestic law from enabling an individual convicted of one of these crimes to escape proceedings on account of time elapsed, whether since the charges concerned or since a _previous conviction, provided, as in the present case, no penalty has been served" (Crim., 3 June 1988, No. 87-87.240: Bull. No. 246).
Whatever the public or civil nature of the concerned case (Crim., 1 June 1995, No 94-82.590, No 94-82.610 and No 94-82.614: Bull. No 202).
On the other hand, as has been explained, ignoring the principle of imprescriptibility of crimes against humanity, the French courts persist in declaring inadmissible the proceedings brought by the descendants of slaves on the basis of the above-mentioned Act of 21 May 2001.
Thus, the latter are now concretely prevented from taking action against the French State in order to obtain compensation for the damage suffered both by their slave ancestors and by them personally, unlike the victims of other crimes against humanity.
And this in contrast to the victims of the activities and actions committed by the French administration between16 June 1940 and the restoration of republican legality, as it results from the ordinance of 9 August 1944 (see specifically: EC, 12 April 2002, M. Papon, No. 238699; EC, 16 February 2009, Hoffman-Glemane, No. 315499).
22. In view of France's leading role in the establishment and continuation of the slave trade and slavery in Europe, there is no justification for such discrimination. . . .
Thereof, in addition to being legally unjustifiable, the discrimination suffered by the applicant infringed the particular responsibility incumbent on France in relation to slavery in the light of the historical and geographical circumstances inherent in the present case.
Consequently, and in the light of all the foregoing, the applicant had suffered a violation of Articles 4 and 14 of the Convention, a violation attributable to the respondent State. . . .
29. In the present case, there is no effective judicial remedy enabling the applicant to obtain compensation for the acts of slavery and the slave trade classified as crimes against humanity on 21 May 2001.
Indeed, purely theoretical, because it considered inadmissible as time barred the proceedings for compensation brought by the descendants of slaves is today emptied of its substance.
As a result, descendants of slaves today have no effective judicial means to claim their rights and to avail themselves of the rights guaranteed by the Convention.
It is also clear that such a remedy could not have been envisaged before the French State, through the law of 21 May 2001, qualified these acts as " crimes against humanity".
By recognizing for the first time the liability of France and expressly classifying these acts as a 'crime against humanity', this text placed the applicant in a position to act. . . .
Consequently, by not providing any possibility of reparation for acts of slavery, which are systematically held time barred by the French courts, France made it concretely impossible for the applicant to obtain compensation.
There is a blatant violation of Articles 6 and 13 of the Convention.”
In response to the French State’s determination NOT to pay reparations, the appellants ask,
“How can one believe that legal proceedings conducted before the French judges appointed by the French state and in solidarity with the latter’s dominant ideology could lead to a condemnation of the French state to repair the damaging consequences of the two crimes? How can we think that a French judge could one day decide to grant the request for reparation when it is obvious that the independence of judges is a fiction and that judges are the docile civil servants of the state, bearers of its interests and protectors of its finances? Can anyone seriously assert that the victims’ heirs acted too late to claim reparation for a crime that is legally imprescriptible? Are those who initiate such actions under the illusion and delusion that there may be a reversal of the French judge’s case law? What is the relevance of continuing the fight on the legal level if the action will be indefinitely confronted with the quasi-ontological resistance of the judge to judge and condemn the crimes committed by his Master?”
For answers to those question’s read MIR’s Why The Battle For Reparations Is Won.
France and The United States Compared
Now compare the French situation with that of the United States. On June 18th, 2009, the 1st Session of the 111th Congress, of which President Joe Biden was a member as a Senator for the state of Delaware, passed S. CON. RES. 26 acknowledging “the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow laws;” and “apologizes to African-Americans on behalf of the people of the United States, for the wrongs committed against them and their ancestors who suffered under slavery and Jim Crow laws”.
Unfortunately, the same Congressional Resolution demonstrated the hypocrisy of the United States Government on issues of race and equality when it added the following disclaimer to the resolution
“NOTHING IN THIS RESOLUTION— (A) AUTHORIZES OR SUPPORTS ANY CLAIM AGAINST THE UNITED STATES; OR (B) SERVES AS A SETTLEMENT OF ANY CLAIM AGAINST THE UNITED STATES.”
The 1st Amendment of the Constitution of United States of America 1789 (rev. 1992) states very clearly,
“CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS; OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES.”
The S. CON. RES. 26 Disclaimer effectively prevents members of the Afrodescendant Nation from exercising their 1st Amendment Right to petition the government for redress of grievances from the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow laws in the United States.
Moreover, on August 18, 2016, the Report of the Working Group of Experts on People of African Descent of its mission to the United States of America, reiterated that
“THE UNITED STATES HAS NOT SIGNED AND RATIFIED ANY OF THE HUMAN RIGHTS TREATIES THAT WOULD ALLOW UNITED STATES CITIZENS TO PRESENT INDIVIDUAL COMPLAINTS TO THE UNITED NATIONS HUMAN RIGHTS TREATY BODIES OR TO THE INTER-AMERICAN COURT OF HUMAN RIGHTS.”
There is, therefore, no recognition or support by the United States Government for members of the Afrodescendant Nation in the United States of America to exercise their 1st Amendment right to petition the Government for a redress of grievances nor to exercise their human rights under international law to present individual complaints to the United Nations human rights treaty bodies or to the Inter-American Court of Human Rights.
The Baleka Case: Understanding Ethnocide Against the Balanta People in the United States
Siphiwe Baleka, has, for the first time, has combined genetic testing, family genealogy, domestic and international law to explain exactly how ETHNOCIDE was committed against his family, why the Transgenerational Epigenetic Effects remain and require remedy. It has informed his understanding of the legal status of 1,108 generations of his family up to the present. The case that Siphiwe Baleka has prepared overcomes the reasons for dismissal by both the United States and France. He is now ready to file the case in domestic court and international court but needs the assistance of lawyers and financial help. Lawyers interested in the case should send an email to balantasociety@gmail.com
