“I understand why everybody now wants to escape that horrible time [of transatlantic chattel slavery]. You cannot do it by denying that it was there,” said Gay McDougall, former member of the UN Committee on the Elimination of Racial Discrimination (CERD) and one of the architects of its new guidance on reparatory justice. “Because one central factor that kept it together at the time was racism. And it’s like a ball that was thrown into the future of all of our futures. So, it’s still with us, it’s still here.”

At its 118^th session, CERD adopted General Recommendation No. 40 (GR40), which sets out how the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) applies to reparatory justice for the harms and continuing consequences of colonialism, the trafficking of enslaved Africans and racialized chattel slavery. The Committee’s premise is that racial discrimination cannot be eliminated effectively, thoroughly or lastingly without examining and redressing those harms.

“The adoption of the GR40 is a watershed moment. It’s not just another general recommendation. We have made history in terms of our call, our guidance for reparatory justice, for chattel enslavement of Africans, and also the trafficking of enslaved Africans,” said Pela Boker-Wilson, a member of CERD.

Explaining why the Committee acted now, McDougall pointed to decades of inaction by States.

“There’s no question that the States parties have not done enough,” McDougall said. “And I think that it’s a very unfortunate thing to have to say after 60 years of the International Convention Against Racial Discrimination there’s no way that we can deal with contemporary problems until and unless the past is reckoned with.”

GR40 opens with the 2001 Durban Declaration and Programme of Action, which turns 25 this year. There, States acknowledged by consensus that slavery and the slave trade, especially the transatlantic slave trade, are a crime against humanity.

“GR40 also has benefitted from consultations with civil society organizations, non-governmental organizations and individual experts who were in the movement long before CERD,” said Verene Shepherd, a member of CERD.

“Admittedly, when I first joined CERD in 2016, reparation was not on the agenda,” Shepherd added. “Over the years the attitude shifted, we could not ignore the growth of a movement that called for justice for colonial harms for those affected populations in Member States and a subject that was in-line with our Convention.”

Other UN mechanisms had already called for reparations. McDougall explained what the Committee brings to the table.

“What we are adding to that is that we’re the normative centre of the anti-racism mechanisms at the UN. And so, we will be able to say, ‘look, this is a legal obligation. Not just a moral obligation. It’s nice if you go to your church and pray about it, but your church probably was involved as well,’” she said.

Not a history lesson but a harm that continues

GR40 cites the most recent estimate: about 15.4 million Africans were uprooted and only about 10.7 million survived the crossing.

“Slavery was not unknown in the world in the 15^th century. Lots of countries had slavery. But chattel slavery was very narrowly defined, what was devised in order to maintain the grip on slave labour was racial discrimination,” McDougall said. “It was a hereditary system that was not known before, where not just all your life, but the life of your children and your children’s children, and your children’s children’s children were going to be slaves. So, it was a terrible system, and it was a sin. It was illegal.”

GR40 also records that the system met resistance from the start, from African leaders and from enslaved people themselves.

“A huge percentage jumped off the ships rather [than] continue to be enslaved,” McDougall said.

The Recommendation treats sexual and reproductive violence as integral to slavery. This includes forced pregnancy and coerced “breeding,” which became a commercial practice once the trafficking itself was abolished.

McDougall said that women were not only forced into prostitution but forced pregnancy because they were going to produce a new unit of labour for profit.

“That baby was going to be owned by the slave owner,” McDougall said.

Shepherd added that CERD wanted to highlight these issues to make clear that GR40 is not only about the past and that chattel slavery affected people differently based on gender.

For the Committee, these are not closed chapters. GR40 lists contemporary manifestations: racial profiling, disproportionate use of force by police, disparities in criminal justice, and discrimination in housing, education, employment and health care.

“For those of us in affected countries, for example in the Americas and the Caribbean, what we refer to as the legacy of the ‘colonial mess’ is still evident,” Shepherd said. “While there is development in countries that benefitted from the transatlantic trafficking of enslaved Africans and African chattel enslavement, there is still underdevelopment at the scenes of the gravest crime against humanity in areas such as health, education and the physical infrastructure.”

GR40 draws on the premise found in many African legal and moral philosophies that “a crime does not rot.” It traces this to the Kouroukan Fouga, the 1235 oral constitution of the Mali Empire. In that tradition, time carries a wrong forward as a continuing present reality until there is reparation.

GR40 also acknowledges that, regardless of how the original acts are legally characterized, States remain bound today to eliminate the racial discrimination linked to them.

McDougall added that it might not be possible to file a lawsuit for somebody who was enslaved centuries ago, but that it is possible to file a lawsuit for not abiding by the obligations under the Convention to end racism and racial discrimination now.

GR40 recalls that, after abolition, enslavers were compensated for “lost property” in France, the United Kingdom and the United States, and that Haiti was forced to pay France after its revolution.

“Not about giving checks”

GR40 defines reparatory justice as a combination of monetary, non-monetary, and structural measures.

“People say, ‘is this about giving out checks?’ No. Although I’m sure checks would help, but no, that’s not what we’re talking about,” McDougall said. “We’re talking about transforming the structures that are still deciding that people of African descent cannot realise their full human rights in every society that we’re in.”

Compensation still matters, Shepherd said: it will help governments in the affected countries to improve opportunities for those still struggling.

“First of all, we want States to acknowledge that there is a problem, acknowledge that they were involved in a system that is now globally agreed was an illicit trade in human flesh and that it enriched, first of all, Europe, the colonial countries in Europe, but also the countries in the New World, institutions, banks, religious institutions, schools, insurance companies,” McDougall said.

GR40 requires States to investigate and disclose the full truth.

“Archives have to be open,” McDougall said. “We need to be able to create a complete and truthful picture of what happened during that period. Who benefited, as well as who was exploited.”

GR40 requires the participation of the affected communities in designing and monitoring reparatory measures, through processes that are State-funded and led by people of African descent, and calls on universities, religious organizations, banks, insurers and other businesses to open their archives, acknowledge their roles and contribute to reparation.

The recommendation also states that apologies should come with concrete measures, not as a substitute for them.

“[GR40] is a call to action for all States parties, whether or not you’re a State that was involved in chattel slavery. We all have a global call. We all have a global commitment,” Boker-Wilson said.

GR40 states that denying effective reparatory justice is itself a distinct form of racial discrimination. It asks States to adopt time-bound national action plans developed with people of African descent and to report on them to the Committee.