African countries face significant legal hurdles in seeking reparations for slavery and colonialism, including the difficulty of proving that these practices violated international law when they occurred. A shortage of African international lawyers to help governments pursue such claims presents another challenge, a leading legal expert has warned. ALSO READ: Rwanda to host major conference on colonial reparations Moïse Makane Mbengue, President of the African Society of International Law (AfSIL) who is currently in Kigali, said African governments were increasingly aware of the need to use international law to advance their interests, but that awareness alone was not enough without the expertise to navigate its complexities. “Sometimes states are not reluctant to use international law. Sometimes the problem is the knowledge of international law,” he told The New Times in an interview ahead of AfSIL’s 15th Annual Conference, which opens in Kigali on Thursday, November 5, and runs until November 7. Mbengue, a professor of international law at the University of Geneva in Switzerland and an affiliated professor at Sciences Po Paris in France, said the continent needed to strengthen its legal capacity to turn longstanding demands for reparations into claims that can be pursued through international mechanisms. ALSO READ: How colonialism disconnected Rwandans from ancestral identity Legal barriers to historical claims One of the main obstacles, he explained, lies in the law of state responsibility, which requires a country seeking reparations to prove that the conduct of the state it is claiming against was contrary to international law at the time it happened. This complicates claims arising from slavery and colonisation because international law did not prohibit those practices in the way it does today. “Slavery, when it happened in the 16th, 17th, 18th century, international law at that time was not prohibiting slavery. So those European nations that engaged into acts of slavery, they were not, properly speaking, violating international law at that time,” he said. “The same for colonisation. At the time when colonisation happened, international law was not prohibiting nations, some nations to colonise as a people.” He acknowledged this as one of the major limitations African countries face when seeking to establish the responsibility of former colonial powers. Despite the legal hurdles, Mbengue said there were reasons to remain optimistic, particularly as international law continues to evolve and the international community increasingly recognises the consequences of historical injustices. He cited a United Nations General Assembly resolution adopted last year on slavery as a crime, saying it had helped move the reparations debate beyond political demands towards the legal means of pursuing claims. “Most of the rhetoric, most of the narrative surrounding reparations since independence was very political, very political, very maybe even philosophical. But last year was a turning point,” he said. “There has been a shift in the narrative. There has been a shift in the conversation from a more political conversation to now a more legal conversation.” He added that recognition of the harm caused by colonisation and growing calls for the return of cultural property looted from Africa had opened pathways that countries could pursue. ALSO READ: Rwanda’s independence served colonial interests, say experts Africa needs more international law expertss Mbengue said the ability to take advantage of these developments also depends on having enough African lawyers with the expertise to advise governments and represent them in international proceedings. He pointed to Rwanda’s case against the United Kingdom before the Permanent Court of Arbitration and Mauritius’ efforts to seek an advisory opinion on its decolonisation process as examples of African countries increasingly using international law to advance their claims. Rwanda, he said, had made progress by involving more African lawyers and arbitrators in its international litigation. He urged other governments to invest in training a new generation of experts. “If you want international law to serve African interests, you need to think more about having African international lawyers presenting the claims of our states,” he said. He said he was not opposed to involving lawyers from outside the continent, noting that diverse teams could bring valuable experience. However, he argued that African lawyers should have a stronger presence in cases involving African countries. “For our needs to be better reflected, for our needs to be better taken into account in the interpretation and application of international law, you need to work with those who understand the needs of African countries, with those who understand the challenges of African countries,” he said. He described this as part of the effort towards the “Africanisation of international law”, which seeks to ensure that African voices influence the making, interpretation and application of international legal rules. Reparations extend beyond compensation The Kigali conference will examine the legal tools and procedures available to African states seeking reparations for slavery, colonisation and the looting of cultural property. Mbengue stressed that reparations should not be understood only as financial compensation. They can also involve restitution, including the return of cultural objects and ancestral property taken from the continent. “Reparations can also be about restitution, return of our property, return of our cultural property, of our ancestral property,” he said. The discussions will also examine the challenges of establishing claims and calculating compensation, as well as the future implications of climate change. Mbengue said African countries should begin developing a legal position on loss and damage arising from climate change, noting that the continent has historically contributed only about 3 to 4 per cent of global greenhouse gas emissions but is expected to be among the regions most affected by its impacts. “We need to build already today a narrative, an African vision, an African strategy for loss and damages deriving from climate change impacts,” he said. “We need to fight already for the future.” He said the reparations debate should also involve Caribbean and Latin American countries, which share histories of slavery, colonisation and cultural property looting with African nations. “Unity is power,” he said, adding that the issue had become a broader Global South concern, although Africa needed to ensure its own experiences and perspectives were represented. AfSIL, which Mbengue has led since 2017, was established in 2012 in Brazzaville, Republic of Congo. It brings together international lawyers from Africa and other parts of the world and seeks to spread knowledge of international law across the continent while supporting governments in strengthening their legal capacity. The annual conferences address issues affecting African countries. Previous meetings have examined peaceful settlement of disputes, climate change, foreign investment, natural resources and the law of the sea. Mbengue said the organisation publishes the proceedings of its conferences so that governments, practitioners, researchers and future generations can use the discussions as a reference. It also plans to follow the Kigali meeting with seminars, capacity-building sessions and technical support to governments. “Without knowing the law, you cannot use the law. Without knowing the law, you cannot know the limits of the law, but how to then circumvent those limits or transcend those limits,” he said.
