3071-The political economy of new slavery

238 Slavery as Piracy
The key issue is whether at the time of the commission of the slavery
and the slave trade they were illegal acts either under domestic law or
under international law. The Nuremberg judgement and the payment
to indigenous peoples have been on the basis that there was a violation
of law at the time of the commission of the offences. Article 6 of the
Charter of the Nuremberg Tribunal 3 included within its definition of
crimes against humanity ‘enslavement, deportation’. 4 It is clear that
slavery and the slave trade fall well within these definitions. This is
unarguable. However, a careful reading of the judgement of Nuremberg
shows that the tribunal held that many of the crimes committed against
the Jews within Germany before the war, as ‘revolting and horrible
as many of these crimes were’, were not established as being committed
‘in execution of, or in connection with’ any crime within the tribunal’s
jurisdiction. 5 The tribunal ruled that only after the war began were
these acts held to have been committed in execution of war and were
therefore crimes against humanity. Hence, even though before World
War II had begun, 1 million Jews had been murdered (Gilbert, 1986),
the Nuremberg Tribunal took a restrictive approach, some would argue
unjustifiably and found only a crime against humanity if there was also
proof of war crimes. This is an approach open to criticism but if we
are relying upon legal precedents, then it is a restriction which has to
be acknowledged.
In addition, in the reparations for slavery claim there is, unlike
Nuremberg, no question of individuals being punished and this undermines
any argument for reparations for slavery and the slave trade based
on Nuremberg. Nuremberg must also be placed in its historical context
(Zalaquett, 1992). The reparations paid by Germany, Austria and Japan
were among the terms for peace imposed by the victors and the conditions
for reparations were set out in treaty form. Likewise the United
Nations Convention on the Prevention of and Punishment of the Crime of
Genocide 1948, which also includes within its definition of genocide
‘killing members of the group’, ‘causing serious bodily or mental harm
to members of the group’ and ‘forcibly transferring children of the group
to another group’, 6 does not apply retrospectively across the centuries.
The Austrian reparations agreement is also of little jurisprudential
value for supporting claims for reparations for slavery and the slave trade
as it established reparations only as personal to the survivor and not to
descendants of survivors. The belated damages agreement by Austria
was narrow in its ambit and was only for the survivors of concentration
camps. Indeed if a survivor dies before the claim is settled, the claim
dies with the survivor. Any claim with respect to African slavery would