The war, a heinous crime, generates the right to reparations, but only the vanquished are condemned to pay them. Reparations are usually imposed in treaties of capitulation, which in good law are of dubious validity, like all consent wrested by force. The burden of paying them ultimately falls on the defeated people, who did not necessarily approve of the conflict, and sometimes their payment creates conditions of dispossession so fierce that, as John Maynard Keynes deplored, they give rise to new conflicts.

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An account of the reparations imposed by the battlefields would require encyclopedias that would confirm Voltaire’s aphorism that war is all about plunder. Imperial Rome lived by collecting tribute in grain and slaves from the defeated. France recognized the independence of Haiti in 1825 in exchange for compensation of 150 million gold francs for the liberation of slaves. In the treaty of recognition of the Independence of Venezuela in 1845, defeated Spain incorporated clauses that restituted its goods to the defeated royalists. In the 19th century, China, Japan, Persia, and Siam had to pay ruinous ransoms to the empires that attacked them. After the Franco-Prussian War, the Treaty of Sedan obliged the French to cede the provinces of Alsace and Lorraine and to cancel 5 billion gold francs. These conditions led to World War I, which culminated in the obligation for the Germans to pay 132,000 billion gold marks. After World War II, they had to cancel 20 billion dollars. In the 1973 Paris Peace Treaty, Vietnam agreed to cancel the enormous public debt of the extinct South Vietnamese government. In almost all cases, these are agreements between states, which do not necessarily compensate the real victims, the people.

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There has been no more ferocious, bloody and devastating war than the one waged by empires to subjugate foreign populations and territories and colonize the rest of the world since the “Discovery” of America in 1492. Condemned from the ethical point of view by religious men such as Bartolomé de las Casas; disapproved by justnaturalists such as Francisco de Vitoria, the greatest crime in the history of humanity seemed to have occurred without the norms of Positive Law to typify it, sanction it and make its reparation possible.

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World War II culminated in the enactment of groundbreaking laws and judgments in this legal field. At the Nuremberg trials, it was decided that laws relating to crimes against humanity could be applied retroactively, i.e., to events that occurred prior to their enactment. As Richard Overy points out: “What the Allied Powers had in mind was a tribunal that recognized the preparation of aggressive war, the violation of sovereignty and the perpetration of what would become known in 1945 as ‘crimes against humanity as internationally recognized offenses. Unfortunately, these had not previously been defined as crimes by international law, which placed the allies in the questionable legal position of executing retrospective justice – punishing actions that were not considered crimes when they were committed.”

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West Germany also paid reparations to Israel, even though Israel was not a state during World War II, nor was it attacked or occupied by the Germans. The judgments of the Nuremberg trials have never been annulled, overturned, or amended. They serve as precedents applicable to crimes against humanity committed before 1945. This means that countries and individuals injured by crimes associated with colonialism can claim reparations for them.

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Decisive norms are applicable to transgressions that are legitimately considered crimes against humanity and have recently been enacted. The Statute of the International Criminal Court, in force since July 1, 2002, provides that the Court “shall have jurisdiction over the following crimes: a) The crime of genocide; b) Crimes against humanity; c) War crimes; d) The crime of aggression”. It is difficult to summarize any more succinctly the list of imperial crimes against the human race. Furthermore, in Article 29, on Applicability of Statutes of Limitations, the Statute provides that “Crimes within the jurisdiction of the Court shall not be subject to any statute of limitations”. In other words, responsibility for them does not disappear as time passes.

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The United Nations General Assembly, in resolution 60/147 dated September 16, 2005, adopted the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights and Serious Violations of International Humanitarian Law”. In Section IX, on “Reparation for the damage suffered,” paragraph 15 provides that “adequate, effective and prompt reparation is aimed at promoting justice by redressing gross violations of human rights or serious violations of international humanitarian law. Reparation should be proportionate to the severity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions that can be attributed to the State and constitute gross violations of international human rights law. In cases where a natural or juridical person or other entity is found responsible for reparation to a victim, such party must provide reparation to the victim or compensate the State if the State has already compensated the victim.

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These clear norms open the decisive avenue for comprehensive reparations for the atrocities of imperialism and colonialism. They can be and have been applied to crimes prior to their enactment. The rights they recognize are not prescribed, they are immune to the course of time. It is up to those who have been attacked to compile a detailed evidentiary record of what the colonial powers destroyed and took away, of what should be ethically and legally repaired and compensated.

 source Portal Alba