The question of compensation to African countries for being victims of colonization which occurred between the 18th and 19th century has been raised once again by some African leaders at the 64th Session of the United Nations General Assembly which was held in September 2009 in New York. This path was championed by the Libyan Leader, Muammar al-Qathafi who in an address on that occasion called on the colonial powers to pay not less than 77 Trillion US Dollars to Africa in compensation for the ‘evil' effects of colonial system in Africa. This is not the first time such a question has been raised by the Libyan Leader at an international forum. It was first raised when the German government, about a decade ago, decided to pay compensation to Jewish families who were victims of Nazi activities during the Second World War. And it continues as a matter of concern to many independent African states seeking support and international consensus.
The matter has raised several questions with different dimensions including, whether compensation to Africa is necessary and feasible vis-a-vis the benefits derived from that system? What is the basis of determination of the quantum and mode of distribution of the compensation among the independent African states? Do the colonial powers have the political will and resources as individual entities to pay compensation to Africa even if it is legitimate? These are important questions demanding answers but these are not the focus of the present article. The author only discussed them briefly setting the stage for an in-depth research and analysis.
The purpose of this article is to contribute to the ongoing debate and discussions on the matter from a legal perspective but in a balanced and open-minded manner with the aim to enlighten readers on the matter. The focus is on whether we can qualify colonization as a "wrongful conduct" for which responsibility or liability is attributable to the colonizers? And on what legal ground is payment of compensation sustainable under modern international law (precisely, after 1945)?
Before I turn to the legal issues involved, a brief descriptive analysis of the colonial policy in Africa would be helpful here to understand the trend, reality and effectiveness of that system.
II Colonial Policy in Africa
In the latter half of the 19th Century Africa become the object of widespread colonial expansion. During the 1850s Great Britain began its military campaign to conquer the Gold Coast, and the states of Ashanti and Fanti were subdued. In 1874 the British colony of the Gold Coast was formed. Ostensibly seeking to halt the slave trade, British forces occupied Lagos, which in 1874 was placed under the control of the Governor-General of the Gold Coast.
When the Suez Canal opened in 1869 – now the shortest sea route to India and the Far East was through the Mediterranean – the British sought to gain control of the waterway. With its possessions of Gibraltar and Aden, Great Britain controlled the exits to the Mediterranean and Red Sea. The Suez Canal, however, was commercially operated by a French company. Adjacent to Egyptian territory, the Canal was controlled by the Egyptian Government and the Turkish Kheidive (the latter had only nominal control).
In its efforts to obtain its goal, the first thing Britain did was to establish economic control over the Canal. Taking advantage of the economic difficulties of Egypt, in 1875 the British Government bought Egypt's shares in the Suez Canal Company, thus becoming the largest single shareholder. In 1882, under the pretext of quelling an uprising in Alexandria, British forces occupied Egypt.
British colonizers systematically robbed the African colonies, transferring their entire economy to the service of British industry. They directed the colonial states to rely exclusively on the export of agricultural goods like cotton from Egypt, Cocoa from the Gold Coast and Ivoire Coast, thus providing the industry of Great Britain with cheap and high quality cotton fibre and cocoa products. In 1875 Egypt was an exporter of grain, but by 1908 it was forced to import it. High tariffs were set for imported industrial raw materials and machinery for local production, and this led to a decline in the African industries. Existing records of this trend of economic relationship bear adequate testimony to these facts.
British expansion in Africa was a government policy and was also conducted by private capitalists like Cecil Rhodes. The British South African Company, owned by Rhodes, was given rights and powers of government in the area later called Rhodesia. Earlier, in 1886, the same rights were acquired by the United Africa Company, which began to trade in the region of the Niger Delta. In South Africa, British capitalists were eager to establish po9litical control over the gold fields of Transvaal, which were already in their power economically. The Boer Government was not doing everything it could to make the mines as profitable as possible. As a pretext for was, the British raised the question of the status of foreigners, primarily British, who arrived in Transvaal after the gold deposits were discovered, the Boer Government denied the foreigners complete political rights, fearing that the newcomers would eventually usurp the Boers. British propaganda tried to convince public opinion that the government was fighting for the political interests of the English in Transvaal, not the mercenary interests of Cecil Rhodes and the Rothschilds.
In the 1850s Frances began to seize African territory in Senegal. In 1857 the French took Dakar and began a war to conquer the state of Kaior. The first victim of French capitalism in North Africa was Tunisia, which was of considerable geographical importance with respect to the Mediterranean. Since the 1860s Tunis had been in financial bondage to the British and French capitalists. Taking advantage of a skirmish with nomadic Arabian tribes on the Tunisia-Algeria border in 1880, a French expeditionary force was sent in to "help" and occupied the most important centres of Tunisia. The French forced the local ruler to allow their forces to remain in Tunisia and local determine foreign policy. Later Tunisia was formally declared a protectorate of France. Already by the 1870s French colonialists began to penetrate into Morocco, gradually bringing individual tribes under their influence and utilizing feudal institutions to acquire land and privileges.
Belgium also participated in the division of African territory. In 1876 the King of Belgium, Leopold II, created the so-called International Association for the Exploration and Civilization of Central Africa. The real goal of the Association; however, was to seize and exploit the Congo River Bain. By 1884 most of the Basin area had come under Belgian control. But the mouth of the Congo River, with the diplomatic help of the British, was ruled by the Portuguese.
In the 1880s Germany initiated its own colonial policy. In 1883 the country founded a settlement in thee Angra Pequena region in south-western Africa. Later the territory was made a German protectorate.
Taking advantage of the fighting between the leading European powers to gain control over the last free possessions, in 1884 Germany seized Cameroon. In this way German Southwest Africa was formed. In 1885 the country took vast territories in the East Africa and laid the foundations for another colony – German East Africa.
In the 1880s Italy, with British backing, began to colonize Eritrea and Somalia.
In order to prevent the French from access to the Nile Valley, in March 1891 Britain reached an agreement with the Italian government to delineate spheres of influence in East Africa. Britain recognized Ethiopia to be in Italy's sphere of influence and stipulated that the western boundary of the Italian sphere be drawn at a sufficient distance to the East from the headwaters of the Nile. To cut off access to the Nile Valley from the west, Britain concluded an agreement with Germany. In accordance with the Anglo-German Treaty of 1893, the territory of Cameroon up to Lake Chad in the north and the Shari River basin was declared to be in the sphere of German influence.
The final clash between the British and French in their quest to gain control of the Upper Nile occurred in 1898 when French expeditionary forces marched out of Central Africa to the Nile. In early September of that same year, the British crushed Arab forces and seized the capital of the Sudan – Khartoum. Under pressure from England, French forces retreated from the Upper Nile region. In March 1899 the two countries reached an agreement concerning mutual spheres of influence in Africa. The boundary between French and \British possessions in Africa was primarily drawn along the watershed between the Lake Chad and Congo River basins on one side, and the Nile River basin on the other. France acquired part of the Sudan, which made it possible for the country to unite its territory in North and West Africa with its possessions in the central regions of the continent.
By the late 19th – early 20th centuries, all of Africa had been divided among the imperialist powers, with Great Britain acquiring the lion's share (as many as 37 million people inhabited British territory in Africa). In West Africa Great Britain seized Nigeria, the Gold Coast, Zambia and Sierra-Leone; in East Africa, the country controlled Kenya, Uganda, Zanzibar and Somalia. Almost all of South Africa was a part of the British Empire. Though formally a part of the Ottoman Empire, Sudan and Egypt were in effect British colonies.
France had the second largest colonial empire in Africa: West Africa, Equatorial Africa, Madagascar and a part of Somalia. Up to 17 million people lived on these French possessions.
Germany took Cameroon, Togo, Southwest Africa, and East Africa (including the territory of Tanganyika), with an overall population of approximately 10 million people. Belgium, Spain, Italy and Portugal also owned colonies in Africa.
The only independent state in Africa was Ethiopia, which defended its independence in an armed struggle with Italy. In late 1895 Italian forces began their advance into Ethiopia from Eritrea. Within a few months the Italian expedition forces were defeated in a battle at Adua. In October 1896 Italy was forced to conclude a peace agreement under which Ethiopian independence was recognized.
An all-African organization emerged during the fierce struggle against opponents to the unification of the African peoples. The 1958 meeting of eight independent African states in Accra, the capital of Ghana, marked the beginning of the formation of this organization. At the first inter-African conference held in Addis Ababa in May 1963, the Organization of African Unity (OAU) was formed the largest regional organization among the developing countries, OAU states its firm resolution to liberate the entire African continent from foreign rule and to eliminate colonialism and neo-colonialism in all its forms and manifestations.
The second phase of the national liberation struggle, which began when the African countries started to acquire their independence, was more complicated and bloody: the young states underestimated the power of neo-colonialism. Socio-economic problems proved to be entirely difficult to overcome, and, in addition to the colonial legacy, it was necessary to remove the obstacles hat had hindered the development of African society since the pre-colonial period. Ethnic strife and tribalism complicated the situation even more in some states.
III The Aftermath of the colonial past
After the African states won their independence, ruling circles in the former mother-countries were reluctant to give up their positions. Thus, efforts were made to transfer power to political forces considered to be reliable. The colonial powers tried to impose state and legal institutions typical of bourgeois political and economic principles in the newly free countries, to entangle them in unequal treaties and to draw them into military blocs. The imperialist countries endeavoured to preserve the economic backwardness and feudal and tribal order in the liberated countries.
After winning political independence, it was important for the new state to attain economic independence. The colonial legacy had a ruinous effect on the economic situation in the African countries. Single corps and a one-sided and antiquated agricultural system made the new states dependent on the world capitalist economy. Progressive forces in the young states fought for full national revival, for radical economic and social reforms, and for genuine political independence from the imperialist countries.
Typing groups of countries emerged in Asia and Africa in the 1950s and 1960s: states undergoing radical socio-economic changes and following a policy of socialist orientation; states developing along the path of capitalism; and states remaining the possessions of capitalist states. Each of these general groups possesses a broad spectrum of political and economic situations.
As the countries of Africa became more politically independent, they began to seek regional solidarity and to protest the imperialist countries' policy of neo-colonialism. The new states were faced with the urgent task of overcoming the backwardness inherited from the period of colonial rule. Their need to develop mutually beneficial types of economic cooperation demanded that they unite. Economic alliances made it possible for the developing countries to construct modern industrial projects. Alone, the majority of these countries had neither the financial base nor the corresponding market for optimal-size enterprises. By taking advantage of the international division of labour on a regional basis to achieve economic cooperation and integration the developing states were able to accelerate their economic growth.
IV Evaluation of colonization in Africa
From the foregoing descriptive analysis, it is evidently clear that colonization of Africa was an organized and effective system lasting for a whole century in the interest of trade and commerce which was promoted in England, the Netherlands, Germany, Belgium and France by ruthless profit-making companies. It may be argued that Colonization of Africa by the Europeans opened the continent to western civilization, formal education, western democracy and may further support this realities with the fact that countries in Africa such as Ethiopia which were not effectively colonized are worst today than those colonized in terms of development, peace and security. However, such arguments must be weighed against the problems of eliminating the aftermath of the colonial past which is very costly for Africa. The disadvantages weigh higher than the advantages. The independent African States are paying high prices in terms of civil conflict (resulting from the arbitrary nature of the boundaries by colonial powers in Africa), problems of governance (resulting from the transfer of political power from colonial masters to favourite elites though power was taken from traditional rulers through conquest or treaties), backwardness (resulting from under-development, exploitation of human and natural resources), distortion of the African cultural development (resulting from the influence of European culture and religion), lost of respect and identity (resulting from master-servant relationship and subjugation of Africans), to mention but a few. It appears justifiable on those grounds to say that colonization has done more harm than good to Africa.
V Some legal implications of colonization
The decolonization process was basically completed by the 1960s after the landmark of the adoption by the UN General Assembly in 1960 of the "Declaration on the Granting of Independence to Colonial Countries and Peoples", (GA Res. 1514 XV of 14). The resolution declares among other things that: "The subjection of people to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation". From this day, colonization, whether direct or indirect, has been qualified as a "wrongful act" and prohibited by international law just as was done with slavery which was originally coalesced in the Vienna Declaration on the Abolition of the Slave Trade in 1915, one of the flagrant abuses of human rights. Such an act would lead to state responsibility. But the question is whether the 1960 Declaration has a retrospective effect for the colonial powers?
The law of state responsibility is concerned with the determination of whether there is a wrongful act for which the wrongdoing state is to be held responsible or liable and what the legal consequences are (e.g. an obligation on the part of the wrongdoing state to restore the previous situation or pay compensation), and how such international responsibility may be implemented (e.g. through countermeasures adopted by the victim states such as reprisal or restoration.
In the Spanish Zones of Morocco Claim (1925) 2 RIAA 615, Umpire Huber expressed the concept of state responsibility in the following terms:
"Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation is not met, responsibility entails the duty to make reparations.'
We can refer to the work of the International Law Commission Draft Articles on State Responsibility (Yearbook of the ILC, 1979), which represents an authoritative statement of the principles regulating state responsibility, in particular in relation to the content, forms and degrees of state responsibility. This can be supplemented by a considerable amount of case law on the subject generated within the last century. Article 19(2) of the Draft Articles states that:
Article 19(2) of the Draft Articles defines an international crime as:
"An internationally wrongful act which results from the breach by a state of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole ..."
Four practices are expressly identified as international crimes, although these are merely illustrative and not exhaustive. These are:
i) A serious breach of the international rules created for the preservation of international peace and security, such as the rules prohibiting aggression;
ii) A serious infringement of the principles which safeguard the right of self-determination of peoples, such as the rule prohibiting the establishment or maintenance by force of colonial domination;
iii) A serious breach on a widespread scale of an international obligation of essential importance for safeguarding human beings, such as those prohibiting slavery, genocide and apartheid; and
iv) A serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting mass pollution of the atmosphere or of the seas.
In application of the above article, the colonial powers were directly and effectively engaged in colonizing Africa for over hundred years and the ‘good' and ‘bad' of that system can be imputed to the colonial powers.
The actions of state organs, agencies and representatives must he attributed to the state for the purposes of determining international responsibility. Direct or indirect responsibility will devolve to the states for:
i) Acts of the executive, legislative and judicial branches of the government. (as in Draft Article 6).
ii) Any actions of the political sub-division of the state, such as individual federal states or provinces (as in Draft Article 5).
iii) An action of any organ, state employee or other agent of the government
functioning within their official capacity (as in Draft Article 8).
Acts which are lawful under municipal law, but unlawful under international law attract international responsibility and it is no defence to an international delict that colonization was legitimate under municipal law of the colonial powers. As the Court pointed out in the Polish Upper Silesia Case (1926) PCI) Reports, Series A, NO.7:
‘…municipal laws are merely facts which express the will of and constitute the activities of states in the same manner as do legal decisions or administrative measures.'
Imputability for actions of agents and employees of those states engaged in colonization extends in particular to the police and the armed forces. In this respect, the following principles are important:
A state is liable for the official actions of all agents no matter how minor in rank (Draft Article 6). See, Massey Case (1927) 4 RIAA 15.
However, it would be difficult to determine whether the wrongdoing by the colonial powers constitute a breach of an international obligation of those powers. This is because the resolution itself was adopted by 89 votes to 0, with nine abstentions. The abstaining states include Belgium, France, Portugal, Spain, the UK and US (virtually all the states engaged in colonialism abstained).
The colonial powers did not give consent to be bound by the resolution and it may apply only between parties to the agreement. As a general principle, a treaty does not establish rights or duties for third states without their consent (Article 34 of the Vienna Convention on the Law of Treaties, 1969). This rule is expressed in the maxim pacta tertiis nec nocent necprosunt, and is supported by a number of international decisions. See especially, the Free Zones of Upper Savoy and the District of Gex Case (1932) PCIJ Reports, Series A/B, No. 46.
A number of exceptions to this rule have been established both under the Convention and also in customary law. Cumulatively, these include the following:
(i) Multilateral treaties declaratory of customary law will apply to non-parties, although in fact they are not bound by the treaty itself, but rather the underlying customary principles. See the North Sea Continental Shelf Cases (1969) ICJ Reports, p.3.
(ii) Multilateral treaties which are instrumental in the creation of new customary rules may ultimately bind third parties on a customary basis, for example, the Hague Convention on the Rules of Land Warfare 1907.
(iii) Emergence of a jus cogens: Article 64 of the Convention stipulate that, where a new peremptory norm of general international law has emerged, any existing conflicting conventional obligations are terminated.
Based on the expose' and critical analysis, it ma be argued that imputability of the wrongful act of colonization to colonial powers will pass the test for responsibility whether they give consent or not to international agreements that criminalise and prohibit colonization. But the question that remains difficult to answer is whether those wrongful acts (colonization) can also pass the test of time (have retrospective effect)? This seems impossible in the present case.
It is important to note that the request for compensation for colonizing Africa, even if on any justifiable ground as shown in this paper, will require not just international law but most importantly the political will of the colonizers, united effort of the independent African States and support from the entire international community. This dream is not easily achievable (not in the shortest time) as envisaged by some African leaders because of the complexity of the issues. Africa was not the only victim of colonization and in the history of mankind people have been colonized by one another formally and non-formally. More so, where African States have also benefited in one way or the other through the relationship.
Alternatively, the African states must be able to strategically attract the colonizers to become more committed in their assistance to them for a speedy development on the continent. During the visit of the US President Barack Obama to Ghana in 2009 he made it clear that the destiny of Africa lies in the hands of Africans themselves. African states need to develop mutually beneficial types of economic cooperation which also demand that they unite. Economic alliances within and outside Africa would possible lead African countries to construct modern industrial projects instead of wasting their energy in fighting for compensation for colonization.