Paying for the Past: Material Reparations after Slavery in the French Antilles since 1998

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Abstract

In 2001, with the Taubira law, France became the first former slave-owning country to classify slavery and the slave trade as crimes against humanity, opening up an unprecedented path for demands for reparations. The aim here is to study the demand for material reparations, based on the case study of Martinique, a former French colony in the Caribbean where the majority of the population is descended from slaves, and the legal proceedings brought by the Mouvement international pour les Réparations (MIR) against the French state since 2005. The period under study will, however, go back to 1998, the sesquicentenary of the second abolition of slavery and a pivotal moment in the changes to French remembrance policy. We will be looking at the main legal and political challenges identified by researchers in relation to demands for material reparations in France, and how movements such as the MIR are responding to them. This will lead us to study how France historically approached the issue of slavery and reparations up until 1998, the turning point of 1998-2001 and the Taubira law, as well as the legal obstacles encountered by the MIR during the various trials, and the main points of contention between the State and the plaintiffs.

Acknowledgments

We thank Vannina Bozzi-Robadey, Asma Benelmoudane, Marie Chapot and Camille Grosseuvre for their proofreading.

Methodology

Four interviews with three researchers (Magali Bessone¹, Johann Michel², Françoise Vergès³) and one MIR lawyer (Alain Manville⁴) will be used to enrich this analysis. These semi-structured interviews, lasting between 40 and 90 minutes, were conducted between February and March 2024 via Zoom and included four to nine questions, depending on the interviewee. The verbatims were recorded manually. A critical discourse analysis method was used to analyse the data. The first step was to become familiar with the data, by carefully reading the interview transcripts. Next, the main themes emerging from the data were identified, such as criticisms of the Taubira law, the issue of prescription and the limits of abolitionism. Non-relevant passages were then eliminated, and each relevant extract was assigned to one of these analysis categories. Finally, the trends emanating from each category and the disagreements between participants were identified, before reflecting on the implications of these results for the research subject and its limits. Discourse analysis is intended to be critical in that it is sensitive to the ideologies and beliefs underlying the discourses, and to the way in which they reinforce or challenge relations of power and domination.

Definition of Reparations and Historical Context

Defining Reparations

To begin with, what are reparations? This question can first be answered with the help of international law. Historically, in international law, reparations referred to compensation paid by one state to another following the loss of a war. It was only from the 1990s that the concept of reparations expanded to take on its current meaning. In United Nations General Assembly Resolution 60/147⁵, reparations are defined according to five types of interventions: restitution (of land, cultural objects, human remains, but also of rights), compensation (financial, individual, or collective), rehabilitation (political, psychological, physical, social), satisfaction (acknowledgment and recognition, investigations, educational materials, public apologies, commemorations…), and finally, guarantees of non-repetition (establishment of checks and balances, structural reforms, protective legislation…)⁶.

One of the debates emerging from the academic literature concerns the type of reparations that is most appropriate: material reparations or moral reparations? Moral reparations can take several forms: educational (changes in school curricula, opening of archives), political (official apologies, establishment of committees), or cultural (construction of memorials, museums), for example. Similarly, material reparations are not necessarily limited to individual financial compensation; they can also include development aid, debt cancellation for certain countries, or the granting of scholarships⁷. In France, moral reparations have been prioritised, while financial reparations encounter significant resistance, unlike in Anglo-Saxon countries where the civil law route and financial compensation are more common. However, the boundaries between material and moral reparations are more porous than they may seem, particularly because moral reparations typically involve financial costs, without necessarily fitting into a logic of compensation to the victims⁸.

Reparations, therefore, encompass a wide range of different measures, including financial compensation, reburials, development aid, official apologies, the construction of memorial monuments, and preferential visa policies⁹. Magali Bessone notes that reparations are “a way of responding to past acts, whether recent or distant […] but it is also repairing with a view to the future, that is […] not simply with the aim of returning to a fantasised past, but with a goal of reconciliation”, yet “the future aspect is often neglected in many usual determinations of reparations”¹⁰. Although the mechanisms used are extremely varied, the idea of reparations always implies a past that haunts the present¹¹. Thus, we could define reparations in the context of slavery as a form of assistance or compensation granted to the descendants of slaves for the suffering endured in the past, the inequalities that persist in the present, and the reconciliation aimed at the future. If the ambition of reparations is to restore the state prior to the harm for the researcher Johann Michel, all reparations would nevertheless contain an element of the irreparable¹².

One of the difficulties in studying reparations in the context of slavery and the slave trade is the challenge of temporally and spatially circumscribing this object of study, as this crime is marked both by its antiquity (1642-1794 and 1802-1848)¹³ and its novelty as a “public issue”¹⁴, being anchored in both local and international contexts. It is also a multidisciplinary subject, extending beyond the question of civil law, as it concerns philosophy, law, history, economics, political science, sociology, and anthropology. Numerous difficulties also arise regarding the nature of these reparations: who should be repaired (the descendants, the people of the Caribbean, the States), what should be repaired (identities, loss of capital, deaths, suffering), who should repair (the State, individuals, companies), or even how to repair (measures)¹⁵.

Abolitionism and Collective Amnesia

From the 15th to the 19th century, around 17 million people were captured in African countries to be enslaved, with more than one million deported to the French Caribbean colonies. In these colonies, the enslaved people were exploited on sugar, coffee, and cotton plantations, which greatly enriched France, at that time the third-largest slave-trading power in the world¹⁶, after Portugal and Great Britain. During the second abolition of slavery in 1848, it is striking to note that it was the former owners, and not the enslaved, who were compensated by the French state for the loss of their “property”¹⁷. Thus, on April 27th, 1848, the populations subjected to slavery theoretically became free and acquired French citizenship, but the victims received neither justice nor reparations.

The granting of citizenship is considered a republican gift offered to the enslaved, even though the abolition was far from ending the racial and social inequalities produced by slavery and colonisation. On the contrary, in their podcast, journalists Adélie Pojzman-Pontay and Iris Ouedraogo¹⁸ explain that the abolition marked the transition from a slaveholding relationship to a post-slavery relationship of dependency between mainland France and the French overseas departments, and of exploitation between workers (formerly enslaved people) and employers (formerly owners). Indeed, while the newly freed people demanded fair wages and ownership of the land they had cultivated, the metropolis imposed a system of association to maintain the low cost of sugar production. These contracts were disadvantageous to the freed people, keeping them in dependency, as they continued to work on the plantations, but for a very low daily wage¹⁹ and a third of the harvest. Thus, after slavery, the racist hierarchy and the ideological discourse on “race” remained, and de jure equality was far from leading to formal equality. The békés, slaveholding descendants of the first colonists in Martinique, still own the plantations, the means of production, the sugar mills, and the huts in which the formerly enslaved live²⁰.

Despite slavery being classified as a crime, no perpetrators were identified, let alone prosecuted, and the French Republic urged the victims to forget four centuries of exploitation²¹. This political injunction to forget rendered slavery a taboo subject in French society, including within families descended from enslaved people. The slave trade and slavery therefore fell into wilful oblivion after their abolition: this shameful period²², which would tarnish France’s reputation as the “country of human rights”, was not to be mentioned any more. In fact, this is the main reason why slavery was abolished, as well as to preserve social peace, and not out of anti-racism or a genuine desire to end the exploitation and dispossession of Black people²³.

Commemoration of the Abolition and Memory of Slavery

The situation evolved between the 1960s and 1980s, with a renewed interest in the memory of slavery and the figure of the enslaved among the elites and identity movements of the French overseas departments. The pressure from these movements led, in 1983, to the passing of a law²⁴ establishing a public holiday in the French overseas departments to commemorate the abolition of slavery. However, this initial form of memorial recognition did not extend to mainland France, as if slavery did not concern the metropolis²⁵. Thus, France still did not confront its past, except to celebrate the abolition and the grandeur of the republican regime that ended slavery. Nevertheless, in April 1983, a decree was added to the aforementioned law, introducing one hour of instruction across the entire French territory on slavery and its abolition. While slavery was finally beginning to be seen as a national issue, there was still no question of recognising the State’s responsibility in these crimes or the suffering of the victims. On the contrary, the abolitionist Republic continued to self-glorify as the saviour, which further obscured the significant role played by the resistance of enslaved people²⁶.

The true turning point occurred in the 1990s, a period during which memorial claims regarding slavery were no longer limited to “the scale of local memory” in the overseas departments²⁷ but resonated in mainland France. The international context was favourable, as in the 1990s, international law became more concerned with victims and opened the possibility of seeking reparations for historical crimes. The genesis of this reparative model through legal means took place in the United States and primarily concerned crimes related to the Holocaust, notably lawsuits by Jewish associations against Swiss banks²⁸. Thus, the new paradigm was one of recognising crimes and victims. The main protagonists of the memorial regime surrounding slavery changed: it was no longer about glorifying the great figures of abolition, but about paying tribute to the victims and their descendants. Johann Michel thus speaks of the emergence in the 1990s of a counter-memorial narrative, visible, for example, through the establishment in France of days of tribute to the victims, which marked “a new configuration of official memory”²⁹³⁰. Memorial laws, which concern our relationship with the past, multiplied, such as the Gayssot Law of 1990, which penalised Holocaust denial³¹. This represented a true turning point in the way societies resolve their violent conflicts, as the condition for peaceful coexistence was no longer forgetfulness, but rather the remembrance of crimes and the centring of their victims³².

The Taubira law of 2001: A Memorial awakening 

The Turning Point of 98-2001

While the 90s created a more favourable context to the reparation requests, it is from 1998-2000 that the window of legal opportunity truly opens and that “the demands for reparation enter the French public space […] as a national conversation”³³. Indeed, in 1998, the 150th anniversary of the second abolition of slavery was commemorated under the Jospin government. However, no space in the celebration was given for the victims of slavery. Moreover, in his commemorative speech, the Prime Minister made a statement that will provoke anger in the French Antilles: “We were all born in 1948”. The underlying idea was that the mainland had freed black people, generously granting them freedom, and it would only be from that moment that their lives had truly begun. Slaves were therefore not recognized as the actors of their own liberation. This speech was interpreted as a form of disregard by many associations of descendants, leading them to form a committee and organise a national silent march in Paris on the 23rd of May 1998 in honour of their enslaved ancestors. Gathering 40 000 people, this event opposed the official public memory of slavery by asking for its recognition as a crime, as well as the establishment of a memorial³⁴ in tribute to the victims. While mobilisations had existed in the French overseas departments, with this march, they succeeded to reach mainland France as well. What was also new was that the event took on a national dimension, forcing the French public authorities to address it³⁵. This march marks the emergence of a new memorial regime³⁶ that will be represented by Christiane Taubira (then deputy of Guyane) and the submission a few months later of the first version of the future law of May 21, 2001³⁷. However, this characterization of the years 1998-2001 as a turning point can be nuanced: indeed, while academic and political interest is growing, “French society remains largely indifferent”, according to Françoise Vergès³⁸, and the public debate surrounding this issue is not truly visible in the media until 2005³⁹.

After three years of writing and debate, the Taubira Law was unanimously adopted by the Senate on the 10th of May 2001, recognising the slave trade and slavery as crimes against humanity⁴⁰. Its significance is therefore primarily symbolic: 

The Taubira Law of 2001 first represents a turning point in that, even today, France is the only former slave-holding country that has a law declaring the slave trade and slavery as crimes against humanity. Symbolically, it is significant that a country that was at the heart of a slave system recognizes this 150 years later.

The recognition of the violence enacted by the Taubira Law through its categorization of slavery and the slave trade as crimes against humanity could be seen as the first step toward reparations. This is, in fact, what the principle defended by the MIR — the “three Rs”: recognition, reparations, reconciliation⁴¹ — implies. In addition to this symbolic recognition, the law also includes more concrete measures, such as encouraging reflection on the place of slavery in school curricular, research, and culture⁴², as well as establishing a National Committee for the Memory and History of Slavery (CNMHE), which would become the Foundation for the Memory of Slavery in 2019⁴³. Françoise Vergès was one of the members of the CNMHE from its formation in 2004, before serving as vice-president from 2009 to 2012. When asked about the relationship between the committee and the governments, she denounces the great ignorance of parliamentarians: “It was necessary to engage in constant educational work; for example, whenever a ministry changed, everything had to be relearned […] we realised the incredible ignorance of those in power”⁴⁴

Conflicts of memory

With the Taubira Law, the focus is no longer on valorizing the abolitionist republic, but on putting the victims in the centre: thus, there is a change in the memorial regime. Johann Michel⁴⁵ distinguishes between memorial policy (interventions by public actors to produce, reform, or impose an official public memory) and memorial regime, i.e. the set of “perceptions and representations of official public memories at a given time”⁴⁶. In the case of slavery, the researcher identifies three conflicting memorial regimes: the republican regime, the anti-colonial regime, and the victim-centred memorial regime⁴⁷. Although these three regimes oppose one another and emerged at different times, they coexist today⁴⁸.

As we have seen, the republican memorial regime advocated by the French state glorifies a liberating abolitionism and its prominent metropolitan figures. This regime first emerged in the French Antilles under the Third Republic before spreading nationally, primarily from 1948⁴⁹. The Republic is its central character⁵⁰. Memory is here tied to national identity: the event of abolition enhances the French nation, while excluding the narratives of slaves and their descendants. As mentioned earlier, this also represents a politics of forgetting, or even amnesia, marked by an assimilationist and universalist ideal: forgetting is deemed necessary for the emergence of a strong and united French nation⁵¹. This memorial regime is evident in many statues, which often depict abolitionist figures as bestowing freedom upon an inferior slave—a myth of the white saviour that strips slaves of all agencies, despite the fact that their revolts were foundational to the struggles for abolition⁵². The first memorial regime, still according to Johann Michel⁵³, is still very much present today. Françoise Vergès shares this view, noting the “almost universal” condemnation faced by the toppling of statues of Victor Schœlcher in the spring of 2020. There thus remains “a pride in how France abolished slavery”⁵⁴.

The figure of Victor Schœlcher, a famous 19th-century abolitionist, is indeed particularly central to this republican memorial regime. Schœlcher is controversial due to the compensating of planters in 1848, to which he did not oppose⁵⁵, as well as his lack of critique towards the colonial structures, since he believed that granting rights and citizenship to slaves would be enough to resolve inequalities. Schœlcher was even on the commission which aimed to determine the amount of compensation for planters⁵⁶. The name of Schœlcher is extremely prominent in the French Antilles, notably in street names and in statues depicting him as a liberator of slaves. This is exemplified by his statue in Cayenne (French Guiana), which portrays him with a puffed chest and raised arm, showing the horizon to a nearly naked Black slave while placing his hand on the slave’s shoulder⁵⁷.

This “civilising myth of national unification”⁵⁸ and the collective amnesia surrounding slavery were increasingly criticised in the 1950s by the movements of descendants of slaves. Thus emerged the anti-colonial memorial regime, primarily driven by communist and independence movements in the French Antilles and Réunion. This regime highlights the slaves and their resistances (insurrections, marooning…): it is no longer the abolitionists who are considered to have liberated the slaves, but the slaves themselves⁵⁹. This regime is also a continuation of the negritude movements of the 1930s, which underlined the persecutions suffered by slaves but, more importantly, the figures of resistance, asserting pride in the identity of Black people and Antilleans, thereby reversing the stigma⁶⁰. According to Johann Michel, this memorial regime is marked by autonomist or independence desires: thus, “it calls upon new foundational events, new heroic figures, all of which are almost mythified figures aimed at constructing a new nation”⁶¹.

Finally, the victim-centred memorial regime, which developed in the 1990s, emphasises, in a logic of victim recognition, the sufferings and harms experienced by enslaved people, and the importance of honouring them. It is notably supported by the Antillean diaspora in Île-de-France⁶², and later by the state following the sesquicentennial of slavery and the Taubira Law. The anti-colonial regime is criticised for highlighting heroic anti-slavery figures at the expense of the victims⁶³. Like the republican memorial regime, it can be criticised for its difficulties in thinking of the enslaved as subjects of history, as speaking and thinking beings, since this figure is only mobilised as a subject of suffering, discrimination, and humiliation⁶⁴. The Taubira Law of 2001 fits within this last memorial regime and marks the official recognition of a new memory of slavery⁶⁵, heavily inspired by the one of the Holocaust. A representative measure of this change is Article 4 of the law, which establishes a public holiday in the French overseas departments as well as in mainland France, thus extending the 1983 law to the entirety of the French territory. This shows that the issue of slavery is no longer relegated to “others”’: “the abolition of slavery is no longer just officially an event affecting overseas territories, but the entire nation”⁶⁶. Furthermore, Article 4 also provides for the establishment of the CNMHE, which, according to Michel, would perpetuate this new official memorial regime of slavery.

Declarative law or normative law ? 

However, the Taubira Law of 2001 has been criticised for sidelining the issue of reparations, particularly those of a memorial nature. It is interesting to note that in the initial draft of the law by Christiane Taubira, the question of reparations was on the agenda⁶⁷, but “between 1998, when the commission began to take shape, and May 2001, when the law was definitively voted in the French National Assembly, all references to reparations disappeared from the text”⁶⁸. According to Johann Michel⁶⁹, the deputy “did not follow through because she knew she would not be supported by the government”: in his view, since the concept of reparations is associated with civil law in France, this could have legitimised future claims for financial compensation before the courts. Consequently, “the term reparation was feared within Jospin’s socialist government”. This withdrawal was criticised by Antillean associations, such as the MIR and the Collectif des filles et fils d’Africains déportés (COFAD), which demanded material reparations, not just symbolic or moral ones, in order to deconstruct an unequal racial financial order. After removing the word “reparations” from the bill proposal, it gained consensus among the deputies⁷⁰. In addition to depriving victims of the possibility of seeking justice and reparations, the Taubira Law of 2001 has been criticised by associations for its failure to name the guilty parties. In fact, the law “explicitly involves no repentance from the State or the Nation”⁷¹ and it never mentions the responsibility of the French state in slavery. Vergès also regrets that the law merely offers recommendations without compelling the state to act and without providing “the means for a power dynamic”⁷², particularly between the CNMHE and successive governments. 

Several consider that the removal of Article 5 from the bill makes the Taubira Law a memorial or symbolic law, meaning it lacks normative power. This was one of the main counterarguments from the judges in response to the complaint filed by the MIR in 2005: the law would be devoid of normative consequences and would therefore not entitle individuals to reparations. For Alain Manville and the MIR, the Taubira Law creates legal effects, while for Bessone and Michel, the law is systematically interpreted by judges as a declarative or memorial law, which expresses the state’s perspective on a historical fact, without normative or repressive implications. According to Johann Michel, the Taubira Law “is not a law, in the strict or normative sense of the term ; that is to say, if tomorrow you were to question the fact that slavery was a crime against humanity, you […] would not incur any penalties”⁷³. Thus, the Taubira Law would be primarily symbolic. Bessone recalls that the ruling of the Court of Cassation in 2013⁷⁴ aligned with this interpretation, viewing the Taubira Law as essentially memorial. This ruling contrasted with a decision from the Fort-de-France tribunal in June 2011, which upheld the conviction of a béké for praising crimes against humanity for comments made on television that highlighted supposedly “positive” aspects of slavery⁷⁵. According to the judges of the Court of Cassation, the “spirit” of the Taubira Law should be respected⁷⁶. In contrast, for the lawyers of the MIR, such as Alain Manville, the Taubira Law does not merely declare the state’s perspective on the crime of slavery. Every law would produce legal consequences, and it is the judges who have decided that the Taubira Law would be an exception. Thus, according to Manville:

De facto, once we recognize the principle that the slave trade and slavery are legally crimes against humanity, the fundamental principle of Western law that every wrong implies the right to reparations must apply, regardless of the silence of the law [on the issue of reparations]⁷⁷.

Moreover, according to him, “the intent of the legislator does not define the effect of the law”, and therefore, just because Article 5 of the bill drafted by Christiane Taubira was removed, it does not mean that the law could not entitle individuals to reparations. Reflecting on the 2013 ruling of the Court of Cassation, he considers that this decision is “totally nonsensical” and that the ruling rendered is political rather than legal. The MIR then decided to “bring the seven judges of the Court of Cassation before a criminal court for glorification of a crime”⁷⁸. Since then, according to Manville, “no judge dares to say […] that the Taubira Law is devoid of normative power”⁷⁹. In the latest ruling issued in 2022, for example, the Court specified that it would not engage in this debate about the nature of the Taubira Law. Thus, according to him, this debate “is settled in terms of criminal and judicial matters”⁸⁰. 

The removal of Article 5, the widespread interpretation of the Taubira Law as a declarative or memorial law, and the opposition of successive governments to reparations have not prevented several attempts to use it in civil law, such as those by the MIR and the Conseil représentatif des associations noires (CRAN)⁸¹. Thus, the Taubira Law, despite itself, has opened up possibilities for legal action. According to Alain Manville, if these consequences had been foreseen, the deputies would never have voted for the Taubira Law, an exceptional law in the West: “Only France has passed a law stating that it is a crime; no other former slave-holding power has done so, wants to do so, or will do so”⁸².

The Legal Battle for Reparations: Points of Contention

The MIR’s Procedures

In 2005, the MIR of Martinique and the Conseil mondial de la diaspora panafricaine (CMDP) sued the French state for damages related to slavery, bringing the case before the High Court of Fort-de-France. In 2017, the MIR Guadeloupe and the Comité International des Peuples Noirs (CIPN) filed a similar lawsuit. The MIR is a movement founded in 2001, with Garcin Malsa serving as its president since its inception. Every year since 2001, MIR Martinique has organized a six-day march in May, called the “convoi pour la réparation” (Convoy for Reparations) to commemorate their enslaved ancestors and demand reparations. In the lawsuit filed against the French state in 2005, the plaintiffs’ legal team consisted of Alain Manville, Claudette and Maryse Duhamel, and Georges Emmanuel Germany, who based their arguments on the Taubira Law of 2001, as well as Articles 1240⁸³ and 1242⁸⁴ of the Civil Code, to demand that the French state compensate the people of Martinique for the harm suffered. The MIR is seeking a fund of 200 billion euros, as well as the creation of a committee of experts to assess the final amount and distribution of the money⁸⁵. Manville clarifies that the MIR’s goal is to compel the French state to pay, as it will not do so on its own, arguing that “all former colonial powers must provide reparations.”⁸⁶ As stated in Articles 1240 and 1242 of the French Civil Code, any harm implies that the victims must be compensated by the perpetrator, including the state. Manville notes that the MIR’s legal actions against the state were initiated against the advice of some MIR members and many of his fellow lawyers, who were skeptical about the likelihood of success through legal means. Initially, the MIR’s legal proceedings were not taken seriously by legal experts, researchers, or even the state itself, which believed that “within a year, it would be over, that the judges would have dismissed us and sent us home.”⁸⁷ On the contrary, these proceedings have now lasted nearly 20 years.

From 2008 to 2013, the legal dispute primarily revolved around determining the appropriate court to approach. In France, as Bessone⁸⁸ explains, the law is divided between administrative law and judicial law, the latter including criminal and civil law. The State cannot be prosecuted under criminal law. While it can be held liable under civil law, cases involving the State typically fall under administrative law. The judges therefore argued that the MIR had approached an incompetent court and should have filed the case before an administrative judge. Ultimately, in 2013, the civil law route was accepted, as the crimes in question pertain to freedoms and penalties⁸⁹. According to Manville,

this reversal marked the State’s first defeat, the first moment when people began to think, “perhaps there is something to this idea of legally challenging the French state” […] the idea that it was indeed possible to take legal action was affirmed⁹⁰.

In 2014, nine years after the lawsuit was filed, the High Court of Fort-de-France delivered its judgement, ruling against the claimants. The MIR then decided to appeal and initiated a second legal action in 2015. The Court of Appeal and later the Court of Cassation upheld the 2014 decision, but the MIR persisted in its fight. In 2022, a new trial took place before the Court of Appeal of Fort-de-France concerning the second case filed in 2015. The trial was declared historic and was filmed for the national archives, to be broadcast in 50 years⁹¹.

Although the Court of Appeal of Fort-de-France ruled against the MIR in January 2022, each legal decision advances the cause. Bessone⁹² views the MIR lawyers’ strategy as an example of “strategic legalism”: multiplying hearings in increasingly higher courts to force judges to debate, create case law, advance the legal framework, and potentially contradict themselves⁹³. The January 2022 ruling by the Court of Appeal of Fort-de-France, for instance, marked a significant step forward for the MIR, as it set the starting point for the statute of limitations in 1948 rather than 1848. This development led Magali Bessone, who was initially sceptical of the legal route⁹⁴, to change her view: “When I read that ruling, I thought, after all, this might actually work. I’m no longer as negative as I was before.”⁹⁵ Thus, for Manville, despite the numerous so-called defeats, “after 20 years of legal proceedings, we [the MIR] have won the legal battle.”⁹⁶ The MIR has now taken the case to the European Court of Human Rights (ECHR), which deemed the case admissible in 2020—already a victory in itself, as Manville points out that 96% of cases brought before the ECHR are rejected⁹⁷.

Temporal Distance and Identification of the Guilty Parties

In addition to the argument that the Taubira Law does not provide a right to reparations, the MIR faces numerous legal and political obstacles. Firstly, one might question how it is possible to provide reparations in the 21st century for crimes that occurred 200 years ago, for which the direct perpetrators and victims have long since passed away. This is the primary counter-argument: the temporal distance from the crime. Magali Bessone⁹⁸ explains that in France, reparations largely fall under civil liability law, which requires three conditions to be met: the existence of a fact that caused the damage, the existence of a current and certain harm, and a causal relationship between the harm (current injustices) and the fact that caused it (slavery). According to her, these three elements are difficult to establish in the case of slavery due to the temporal distance from the crime and its occurrence over several centuries:

How can it be established that the harm suffered today by the descendants of the victims of slavery […] can genuinely be traced back causally to slavery, in such a way that the State […] can be held responsible for the harm experienced today?⁹⁹

This is also the main obstacle according to Johann Michel¹⁰⁰, who argues that the passage of time makes it difficult to gather evidence and testimonies from the victims, pursue the perpetrators, or join as a civil party. Thus, for Bessone¹⁰¹, this temporal obstacle, which makes it almost impossible to trace the chain of causality between harm and the initial cause, means that the legal route is unlikely to succeed. This leads her, like Johann Michel, to advocate for reparations strategies that are more political than judicial.

According to Michel and Bessone, this temporal distance complicates the clear identification of individual victims and perpetrators, which, as Bessone notes, is essential in the current functioning of civil law. Michel emphasises that in cases where the victims and perpetrators are deceased, it is necessary to involve “third-party compensators” and “third-party recipients”¹⁰², meaning that the identified victims and perpetrators can only be indirect. He points out that the difficulty of proving the impact of slavery on the lives of claimants today is exacerbated by the (largely forced) mixing of Antillean populations, resulting in some individuals being descendants of both slaves and slaveholders. Françoise Vergès¹⁰³ counters this argument, asserting that it is very easy to identify who benefits from the current economic and social structure, with the most disadvantaged in post-slavery societies almost always being racially marginalised populations. While identifying the perpetrators may be complex, identifying the victims is not, especially since the social and economic legacies of slavery remain extremely visible in the Caribbean¹⁰⁴. Indeed, the higher cost of living in the French overseas departments, economic dependence on mainland France, monocultures, environmental racism, significant socio-economic inequalities between békés and descendants of slaves, the “Children of the Creuse”¹⁰⁵ case, and the chlordecone scandal are direct consequences of slavery and colonisation¹⁰⁶. As previously noted, the Republic declared citizens politically equal at the time of abolition, but nothing was concretely done to erase centuries of inequality and ideological discourse on “race”¹⁰⁷. In other words, abolitionism ended a status but did not “transform the economic and racial structures that maintain inequalities and exploitation”¹⁰⁸.

The present still bears the marks of this unrepaired past, despite the passage of laws that have attempted to address these inequalities¹⁰⁹. Even today, these disparities are glaring, such that this past for mainland France is still a present reality in the Antilles. According to a 2016 report by Guadeloupean deputy Victorin Lurel, the poverty rate in the French overseas departments is 40% compared to 13% in mainland France, the overall unemployment rate is 25% compared to 10%, and this rate among young people is 50% compared to 25%. Infrastructure problems also mean that nearly half of the population lacks access to a water sanitation system that meets European standards. The report further highlights that there are on average 700 hours of power outages per year in Martinique, which equates to about two hours a day. Public transportation is inefficient and the road network is deficient. Additionally, Martinique has the highest infant mortality rate in France, and in Réunion, the illiteracy rate stands at 21%¹¹⁰. Moreover, the land still belongs to a few large families who became rich through slavery¹¹¹. According to Françoise Vergès, these inequalities demonstrate that “decolonisation has not yet been achieved”¹¹². For the MIR, material reparations are seen as a means to address these socio-economic inequalities. Bessone, who highlights the challenges of legally proving the causal link between colonial slavery and current harms, believes that socio-economic inequalities can nonetheless be addressed politically (through infrastructure development, public services, etc.).

As for the designation of the guilty parties, the specificity of slavery lies in the responsibility of institutions and norms rather than individuals, which leads Bessone¹¹³ to assert that this responsibility is collective and does not pertain to individual perpetrators. More concretely, Michel points out that if the state were condemned, the debt would be nationalised and thus fall on taxpayers, which would place “a duty of reparations for a crime they did not commit” on current generations and could even lead to “asking descendants of slavery victims to contribute themselves to settling the debt”¹¹⁴. This could risk perpetuating a new injustice towards current generations who “are not directly responsible for the crimes committed by former slave traders or planters”¹¹⁵. However, one could counter this argument by noting that these descendants continue to benefit from the consequences of slavery. Manville highlights this when he reports, “I’ve often been told, ‘Do you want […] me to pay for crimes I didn’t commit?’ First of all, you’ve benefited, alright?”¹¹⁶ Finally, one might question whether the state is capable of judging its own crimes, that is, of being both judge and guilty party¹¹⁷, which raises questions about the way in which the law can act in the service of the State.

Non-retroactivity and Statute of Limitations

In the decisions made by judges, the two ubiquitous legal arguments are the statute of limitations and the principle of non-retroactivity, which means that a crime cannot be punished if it occurred before the law penalising it came into force. Regarding the latter point, judges argue that slavery was not considered a crime at the time it was committed; it was legal and even encouraged by the state. In its 2019 ruling, the Court of Cassation explained that the categorisation of slavery as a crime against humanity “came into force on March 1, 1994 and cannot apply to acts committed before that date”¹¹⁸. According to Johann Michel¹¹⁹, this difficulty is compounded by a problem of “state continuity,” as the crime took place under a different political regime. However, one can challenge this separation between the abolitionist Republic and the pro-slavery monarchy by pointing out that the French Republic and its wealth were built on colonisation and slavery. Françoise Vergès¹²⁰ reminds us, for example, that the Élysée Palace was built by “the wealthiest slave trader of the time,” Antoine Crozat.

Returning to the argument of non-retroactivity, Alain Manville¹²¹ explains that the MIR deconstructed this thesis “by returning to the texts and constitutional principles of Old Regime law”. He elaborates that “since the 13th century, there was a principle on French soil that anyone on French soil could not be enslaved”, and parliamentary decisions were made to that effect. Slavery was therefore already considered a crime, something “the French state refuses to recognise today”. Manville¹²² adds that, according to the judges, the “law of nations”, the precursor to international law, would not apply to Africa—an argument he believes is based on “white supremacist ideology”, as Africa is imagined as “some kind of primitive territory with zebras and negroes […] no states, no treaties”. However, African territories were governed by states as early as the 15th century, where the law of nations did apply. Thus, “legally, slavery at the time was both a crime under domestic law and international law”¹²³.

The second main counter-argument presented by the judges is that the crime would be prescribed. In France, under civil law, a four-year statute of limitations applies to crimes and offences committed by the state and other public entities; in other words, “any complaint against the state or public authority is extinguished after four years”¹²⁴. In 2017, the first ruling by the Fort-de-France Court of Appeal confirmed the existence of a right to reparations and set the starting point for the statute of limitations in 1948, the date of the Universal Declaration of Human Rights (UDHR), rather than in 1848. The question then becomes one of the impediment to action: the statute of limitations for a crime can only begin once the victims are able to take action. The 2017 ruling thus recognises that:

after the abolition, the newly freed individuals were not in a position to take action; they emerged from slavery with nothing, deprived of everything, without the intellectual or material means to bring their cases before the courts, and generously, the ruling grants these newly freed individuals and their legal allied a century to act¹²⁵.

The judges argue that the slaves did not take action when nothing prevented them from doing so, and that the MIR’s lawyers have not proven that the impediment to action persisted after 1948. Manville considers this to be “nonsense”, stating that “the burden of proof regarding the impediment to action was on the state, not on us”¹²⁶. As for the 2022 ruling, which Manville describes as “ideological” and “disregarding the rules of law”, the lawyer regrets that it dismisses the issue of the impediment to action. According to Manville¹²⁷, it is absurd to claim that in 1948, thanks to the UDHR, former slaves—who, as we have seen, continued to work in conditions close to slavery—would have been in a position to sue the state. He places the end of the impediment to action at the 2001 Taubira Law, which, despite its limitations, is the legal tool that allowed the descendants of slaves to consider legal action against the French state. This would mean that the MIR’s complaint filed in 2005 falls within the four-year statute of limitations¹²⁸.

Financial Calculations and Morality

The final counter-argument, which is more moral than legal, concerns the supposed immorality of financial compensation and the difficulties in calculating its cost. On the latter point, it can indeed be challenging to estimate appropriate compensation for a crime so vast, historical, and involving so many actors¹²⁹. The 200 billion euros requested by the MIR may not necessarily be a sufficient amount; the main objective is for the state to acknowledge the right to financial reparations. American journalist Ta-Nehisi Coates¹³⁰, discussing the case for reparations in the United States, argues that “The idea of reparations is frightening not simply because we might lack the ability to pay. The idea of reparations threatens something much deeper—America’s heritage, history, and standing in the world”¹³¹. In France as well, financial concerns mask deeper anxieties about French history and national identity.

According to some researchers, the crime of slavery is so exceptional that it could never be fully repaired or that it would be impossible to establish a financial compensation that matches the harm done¹³². This is the position of Johann Michel¹³³, who emphasises the impossibility of translating crimes against humanity—which, according to him, always contain an element of irreparability—into monetary terms. Doing so would, in his view, diminish the gravity of the crime. Furthermore, Michel¹³⁴ points out that some descendants of slaves find monetary compensation indecent, such as Aimé Césaire, who stated in an interview with Françoise Vergès: “It would be too easy: ‘So you were a slave, for so many years, a long time ago, so we multiply by this amount: here is your compensation.’ And then, would it be over? It is irreparable. It is done, it is history, I cannot change it”¹³⁵. The debt would thus be too great to be settled. Manville criticises this position, describing it as “revisionism” of reparations: according to him, it allows one to “feel morally superior” and “keeps the French state at ease”. For the lawyer, to claim that slavery is an irreparable crime is contradictory, as “an irreparable crime is a crime that did not happen”¹³⁶.

It may nonetheless seem cynical to assign a material value to such a crime. In the past, material reparations have sometimes been viewed as an insult to the suffering endured and the lives lost¹³⁷. Johann Michel¹³⁸ thus asks: “Is financial compensation morally acceptable to repair crimes against humanity?” Ta-Nehisi Coates explains in his article “The Case for Reparations”¹³⁹ that in the case of the Holocaust, the issue of material reparations caused tension within Israeli society, with many considering it shameful to attempt to redress a crime against humanity with money. However, the reparations paid by West Germany¹⁴⁰ to Israel enabled the country to structure its economy and industry. Germany also paid individual financial reparations to Holocaust victims or their direct descendants, as did France in the early 2000s¹⁴¹—a case that shows individual as well as collective material reparations for a crime against humanity are indeed possible. Magali Bessone adds that financial compensation, which in her view can only be symbolic because “no State can adequately fund [such] a harm”, will never be satisfactory on its own and must therefore be accompanied by other measures, such as memorial, historical, or rehabilitative actions¹⁴². While Johann Michel¹⁴³ mentions the problem of assuming that slave-trading nations would be “let off the hook” after paying, as if money could resolve all issues, it should be noted that the MIR does not seek merely money for individual redistribution but also aims to develop public policies to address inequalities, challenge the current economic system, and dismantle the colonial legacy¹⁴⁴. Ultimately, as Manville puts it, “it’s not the money that matters, it’s what the money represents to the other, the one who is going to pay.”¹⁴⁵

Conclusion

Thus, we have identified several obstacles to demands for reparations for slavery: legal obstacles (nature and limits of the Taubira law, statute of limitations, non-retroactivity, etc.), but also political obstacles, such as ignorance and lack of will on the part of governments. Faced with a French society marked by racism and denial of its slave and colonial past, the reparations project is revolutionary: it is about dismantling an economy based on inequality and structural racism. Of course, the issue of reparations is not just a matter for the courts, and it is essential to have a national discussion on this subject in the political and public spheres, particularly on the role of slavery in the construction of France. However, the two are not necessarily contradictory: the court is also a forum for public debate. In fact, despite successive legislative failures, these trials are already a victory, since they make it possible to raise the issue of reparations in the public arena, and thus to bring slavery out of collective ignorance and denial. The fact that we are now debating the practical aspects of reparations (who should pay, how much, to whom…), rather than the legitimacy of such reparations, also already represents a step forward for society.

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To cite the article: 

COTTAIS, C. (2024) Paying for the Past: Material Reparations after Slavery in the French Antilles since 1998. Generation for Rights Over the World. [online] Dec. 2024.