INTRODUCTION AND BACKGROUND

The long-overdue movement to provide redress to those who suffered abuse in Canada's Residential Schools is on the threshold of achieving effective resolution, arguably a historical success in relative terms by comparison with reparations claims in other countries. The processes employed for claims by Residential School survivors – for psychological abuse, physical abuse, sexual abuse, and cultural genocide – have included litigation, alternative dispute resolution (ADR) and political negotiation. This chapter will review recent developments with respect to these resolution processes, in which the leading Native Indian non-governmental organisation in Canada, the Assembly of First Nations (AFN), has played a major role. The chapter will also begin to explore questions of justice and legal theory raised by the processes.

POLITICAL AWARENESS: RESTORING DIGNITY

The 1996 Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back, recommended that there be a public inquiry to examine the origins and effects of government policies with respect to Residential Schools and the abuses which took place in that context. This task was handed to the Law Commission of Canada. In 1998, the government also made a Statement of Reconciliation which acknowledged and expressed regret for the harms caused. After a series of dialogues between government representatives, church representatives, and school survivors, a number of pilot ADR projects were undertaken. Recommendations were then made with respect to the design of any future resolution processes. In 2000 the government released the Law Commission Report, Restoring Dignity: Responding to Child Abuse in Canadian Institutions, which set out principles for a compensation plan and called for a public inquiry into the problem.

The Restoring Dignity Report identified the ‘needs’ of survivors of abuse in the Residential Schools from their own perspective. The Report resolved to keep the interests of these children (who are now adults) at the forefront of any further resolution. Restoring Dignity revealed two overarching ‘values’ that were reflected in the way survivors themselves had expressed their needs. These were:

• (a) Respect and engagement; and

• (b) Information and support.

INTRODUCTION

In the recent past securing reparations for the victims of harm caused by gross human rights violations has become more of a priority due to major developments internationally,regionally, and locally. These developments have occurred at an institutional level with the formation of bodies such as the International Criminal Court as well as the international criminal tribunals for Yugoslavia and Rwanda. Also, there has been development in the jurisprudence and standards relating to when reparations are due. These developments and advances, however, have not often translated into specific reparations for victims; especially in Africa where gross human rights abuses have been part of the landscape within pre-colonial, colonial, and post-colonial societies and countries.

Any discussion of reparations due for those who have suffered gross human rights abuses in the Great Lakes area of central Africa has to begin within an analysis of events during the nineteenth century, when the European powers carved up Africa into different areas of exploitation. This is not to say that no abuses occurred before the colonial period, but reparations for those abuses would be practicably impossible to secure because identifying specific perpetrators would be extraordinarily difficult. However, claims against colonial powers, could be brought, although numerous legal difficulties would have to be surmounted. Claims relating to events before 1885 are not likely to be successful. It was in this year that the scramble for Africa culminated and saw the colonial powers meeting at the Berlin Conference to draft a Treaty which would determine which colonial power would take control in which area of Africa. The treaty that was drafted provided that the local population would be well treated by the colonisers. As a result of the agreements reached and set out in the treaty, borders were established which took no interest in where different tribes were situated. Groups were divided up regardless of language, culture, ethnicity or other affinity. To this day the colonial borders remain sacrosanct, not because they are deemed acceptable, but because to open up the issue to debate would lead inevitably to conflict. Rivalries over these borders, already a problem, would become an even greater issue within Africa and would lead to further wars and loss of life.

The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise. The terms of the compromise both made possible the Commission and set the limits within which it would work. These limits, in turn, defined the space available to the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference.

The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was determined to avoid not one but two pitfalls: on the one hand reconciliation turned into an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both ‘victims’ and ‘perpetrators’, not just one of them.

This double determination was first written into South Africa's Interim Constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt – the truth – before receiving amnesty from legal prosecution. Second, the victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgement would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society and acknowledgement andreparations for the victim – this was the pact built into the legislation that set up the TRC.

The Act, however, did not clearly define the ‘victim,’ and therefore, the ‘perpetrator’. The Commission would have to do it. This paper argues that the single most important decision that determined the scope and depth of the Commission's work was its definition of ‘victim,’ and thus, ‘perpetrator’. Without a comprehensive acknowledgement of victims of apartheid, there would only be a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the ‘crime against humanity’ – and unfortunately there was. From this perspective, the paper identifies two key limitations in the Commission's Report.

INTRODUCTION

A Seattle newspaper in 2004 published an editorial headed ‘Apology is fine, but justice is better.’ In this simple but compelling phrase, it conveyed the notion of a dichotomy between apology and justice and implied that it might be possible to have one or the other, but not both. The editorial, which reflected on the US Government's response to the land claims of Native Americans, epitomised the weary cynicism felt by some observers about the ‘age of apology’ into which we are now said to have entered. It rightly emphasised the need to be alert to and wary of attempts to conceal or dress up in fine words the perpetration of further injustice against those already wronged. Nevertheless, there is no necessary dichotomy between apology and justice. Indeed, for some victims of injustice, contemporary and historic, individual and collective, apology forms an essential ingredient of the justice sought.

In the law of state responsibility, an apology from one state to another for an internationally wrongful act is an established form of reparation. Its capacity to prevent the escalation of conflict between nations and to ensure that wrongs committed by one nation against another do not fester is apparently accepted with little difficulty by international lawyers. The role of apology as a form of reparation for violations of human rights and international humanitarian law, however, is relatively poorly established and receives little attention from international courts and tribunals, practising international lawyers or international law academics. This chapter considers whether more can and should be done to promote apology as a form of reparation for human rights violations and crimes under international law. It argues that it is time for international lawyers to take apology seriously.

In some national legal systems, the importance of apology has long been recognised. In their fascinating and insightful piece of comparative law scholarship published in 1986, Hiroshi Wagatsuma and Arthur Rosett observed that ‘a basic assumption in Japanese society’ seemed to be ‘that apology is an integral part of every resolution of conflict’.

INTRODUCTION

On March 26, 2002, in a United States federal court in Brooklyn, New York, a city transit worker, a 72-year-old retired nurse, and a law school graduate, all descendants of enslaved African Americans, became the first to file corporate reparations lawsuits on behalf of themselves, their descendants and a putative class of approximately 21 million. Their targets: a bank, a railroad and an insurance company, all of which allegedly profited from the Transatlantic Slave Trade. Over the next year, in a coordinated, multi-state strategy, additional lawsuits were filed in federal courts in the cities of: Newark, Chicago, Austin, Los Angeles, and New Orleans. The list of corporate defendants grew to 17, including several banks, a textile company, a shipping company, finance houses and additional insurance and railroad companies. The lawsuits were consolidated for purposes of pre-trial procedures before a Federal District Court Judge, Charles R. Norgle, in the Northern District of Illinois.

As the filings grew, so did the number of new representative plaintiffs, which came to include the aged children and grandchildren of slaves who could recount the stories of their enslaved parents and grandparents. The New Jersey plaintiff, the son of a sharecropper and grandson of an enslaved master carpenter, vividly recalled the profound sadness of his Great-Aunt as she spoke of her emancipation at age 19. He shared his childhood memories of delivering newspapers and raking leaves for the white-occupants of stately homes built by his enslaved grandfather. Three California plaintiffs and one from Illinois are the children of Andrew Hurdle, who was born into slavery in 1845 and sired children well into his eighties. Ranging in age from 74 to 87, the children recalled the whipping scars on their father's back and his recounting of his devastating separation from his brother on the auction block. In the summer of 2003, eight members of a family from Louisiana, claiming to have been enslaved in remote areas of the South up until the 1960s, joined the litigation. The hundred-yearold father, born in the early 1900s, and seven of his living children retraced their family history of being born enslaved on a rural farm in the Mississippi delta where a poor, white landholding family had kept successive generations of his family enslaved through physical abuse and terror.