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ASSESSING ITALY'S GRANDE GESTO TO LIBYA
Claudia Gazzini
Middle East Report Online
http://www.merip.org/mero/mero031609.html
M arch 17 2009
Under a tent in Benghazi on August 30, 2008, Silvio Berlusconi bowed
symbolically before the son of 'Umar al-Mukhtar, hero of the Libyan
resistance to Italian colonial rule. "It is my duty to express to you,
in the name of the Italian people, our regret and apologies for the
deep wounds that we have caused you," said the Italian premier.[1]
Eastern Libya was the site of the bulk of the armed resistance to
the Italian occupation, which lasted from 1911 to 1943. More than
100,000 Libyans are believed to have died in the counterinsurgency
campaign, many in desert prison camps and in southern Italian penal
colonies. Inside the tent, Berlusconi and Libyan leader Mu'ammar
al-Qaddafi signed a historic agreement according to which Italy will
pay $5 billion over the next 20 years, nominally to compensate Libya
for these "deep wounds." The treaty was ratified by Italy on February
3 and by Libya on March 1.
Politicians in both Libya and Italy have often presented the $5 billion
as reparations for the harm done to Libya by colonial rule. Qaddafi
hailed the treaty as an important historical precedent that proves
that "compensation entails condemnation of colonialism regardless of
the amount paid."[2] Yet neither the title nor the text of the treaty
mentions the word "reparations." The text alludes to settlement of
colonial-era disputes, but officially the accord is called a "treaty
of friendship, partnership and cooperation."
The treaty was certainly not signed because Italy has suddenly come to
terms with its colonial past and desires to make amends. Although the
premier has made public noises of atonement for Italy's colonial past,
Italians suffer from a general colonial amnesia and know very little
about their country's adventures in Africa -- far less, for instance,
than the French know about Algeria. Even the 1981 Anthony Quinn vehicle
Lion of the Desert, about Mukhtar's rebellion, was utterly banned
in Italy for many years because, in the government's words, it was
"damaging to the Italian army's honor." The original English-language
version of the movie has recently been screened at film festivals
and seminars, but it has never been dubbed into Italian, and Italian
TV stations have yet to broadcast it. The Italian government, for
its part, still seems more interested in "turning the page" on the
past than in exploring the full extent of the violence perpetrated
in North Africa three generations ago. The financial package that
Italy and Libya agreed upon would therefore be better understood as
the expression of a nexus of interlocking interests: on the Libyan
side, Qaddafi's historical commitment to reparation politics and
his quest for moral victory over the country's former colonizers,
and on the Italian side, strategic and economic gain. Berlusconi,
with characteristic tact, has openly and repeatedly described the
purpose of the treaty as "less illegal immigrants and more oil."[3]
Be that as it may, Algerian and Egyptian politicians and intellectuals,
and a number of activists from sub-Saharan Africa, have proclaimed
that their countries should get deals similar to Libya's for the
injustices they suffered at the hands of European colonial powers.[4]
These injustices include the killings of civilians during anti-colonial
uprisings, the destruction of infrastructure during World Wars I
and II, and the distortion of local economies. Members of Algeria's
National Liberation Front hoped that, after the Italian precedent,
the European Union would be able to put pressure on France and "get
it to make amends for what it did in Algeria."[5] Ibrahim Salih,
former chairman of Egypt's Court of Cassation, claims that Britain
owes Egypt no less than 100 billion pounds ($140 billion). "They
[the British] plundered Egypt during World War I to cover the costs
of their battles against the Turkish, bought Egyptian high-quality
cotton for 20 years at very cheap prices, killed many Egyptians who
joined demonstrations against their occupation and manipulated the
country's wealth in violation of democratic rules and human rights,"
Salih opined. "Are these crimes not serious enough for England to
pay compensation or even offer an apology?" Not surprisingly, the
British do not see the parallel: A British diplomat based in Cairo
ridiculed the Italian-Libyan agreement as "media propaganda" aimed
at appeasing Qaddafi and opening the door for Italian companies to
tap the lucrative oil market.[6]
Setting aside the self-interest in this diplomat's cynical reaction,
there are important reasons why the Italian-Libyan treaty is not a
model to be emulated.
The Italian-Libyan Treaty
The two major ex-colonial powers in the Arab world, Britain and
France, have refused the very idea of state-to-state reparations
or individual financial payments to their former subjects in the
Middle East or elsewhere in Africa. Although Britain has atoned for
some of the massacres carried out during its reign in India and New
Zealand, the issue of apology, let alone financial compensation,
to Arab territories under British rule has never been a matter of
debate. As for France, in 2001 President Jacques Chirac admitted
for the first time France's responsibility for the 1962 massacre
of hundreds of thousands of Algerians.[7] More recently, President
Nicolas Sarkozy recognized that French colonialism in Algeria was
"profoundly unjust" but brushed aside an apology for the 132 years of
occupation as "unnecessary" and stated that the two countries should
look toward the future rather than the past.[8]
In light of the lack of precedent, Italy's decision to sign a treaty
with Libya pledging a staggering $5 billion to its former colony came
as a surprise. In the 1990s, Italy paid for the construction of a
pediatric hospital in Benghazi and funded a research project on the
deportation of thousands of Libyans to penal colonies in southern
Italy. Such projects were carried out under the understanding that
they were small but concrete gestures aimed at redressing past
wrongdoing. Around 2005, Libya began demanding that Italy make a
"grande gesto" and proposed that the former colonizer pay to transform
Libya's two-lane coastal road, built in the colonial period, into a
highway stretching from the Tunisian border to Egypt. Disagreements
dragged on as to whether Italy would pay for the feasibility study or
the actual highway construction, and doubts arose as to the project's
social utility.
Given the lack of legal compulsion, many wondered why Italy would even
enter negotiations for the treaty: $250 million per year over 20 years
is not an insignificant amount of money, especially in the midst of
the current economic recession. No individual Libyan has filed suit
in an Italian court seeking damages for colonial-era offenses; nor
has the Libyan government raised the issue at the International Court
of Justice. And there was certainly no pressure from Italian public
opinion -- to the contrary. The Association of Italians Repatriated
from Libya has long demanded that before paying reparations to Libya,
Italy should first compensate them for the property that Qaddafi
expropriated in the 1970s.
The greatest pressure to conclude the treaty came from the Libyan
government, keen to secure material concessions that would symbolize
Italy's admission of guilt for the colonial past. For over 30 years,
Libya has actively attempted to shed light on the depredations
of that era, so as to embarrass Italy into offering some sort of
compensation, something that has come to be known as "reparations
politics." Stealthier support for the treaty, however, came from
the Italian business and political establishment, eager to improve
bilateral relations with the North African country that is Italy's
main source of hydrocarbons and most important trading partner in
the Mediterranean basin.
The terms of the nine-page document signed by Berlusconi and Qaddafi,
the Treaty of Friendship, Partnership and Cooperation Between
the Italian Republic and the Great Socialist People's Libyan Arab
Jamahiriyya, were kept secret for nearly four months. Now that the text
has been disclosed by Italy, the enthusiasm of Italian big businessmen
and strategic thinkers is fairly easy to understand.[9] First is
the treaty's strong implication that the file of Libyan grievances
against Italy can now be sealed. In the preamble, the two parties
commit themselves to reinforcing peace, security and stability in the
Mediterranean and promoting cooperation and integration through Italy
and Libya's respective roles in the European and African Unions. The
preamble also states that the purpose of the treaty is to develop a
"special and privileged" bilateral relationship that includes a strong
and wide-ranging partnership in political, economic and other areas.
The two countries propose to continue collaboration on research on
the manfiyun, the Libyans forcibly "rendered" to Italy early in the
colonial period, but nevertheless intend the agreement to close the
painful "chapter of the past." During the March celebrations for the
treaty's ratification, Berlusconi solemnly stated: "The past that with
this treaty we want to put behind our shoulders is a past that we,
children of the children, are guilty of and for which we beg your
forgiveness." (Skeptics who question Berlusconi's sincerity forget
that, no matter how hypocritical and orchestrated his remarks might
be, the very fact that an Italian head of state agreed to issue an
official and public apology bears a symbolic significance that one
cannot easily brush aside.)
After an anodyne first section, in which the two parties commit to
respect international law and the other's sovereignty, the treaty
gets down to business. In the second section, Italy vows to make
available funding -- up to $5 billion over the next 20 years -- for key
infrastructure projects, the nature of which is left undefined. Libya
will have the right to propose what type of infrastructure projects it
is interested in, whereas a joint committee of delegates from the two
countries will be in charge of examining the technical details and the
time frame for completion. The treaty states that these infrastructure
projects will be carried out exclusively by Italian companies, with
the funding managed by Italy. It does not specify, however, how this
money will be transferred. Libya, on the other hand, commits itself
to making available, at no cost, the land necessary for completion of
the projects, as well as helping to acquire those building materials
that can be obtained locally and waiving customs duties on whatever
needs to be imported. On top of these major infrastructure projects,
the treaty mentions special initiatives such as the construction of
200 housing units, the assigning of undergraduate and post-graduate
scholarships to 100 Libyan students a year, a health care program in
Italy for the victims of land mines, the reintroduction of pensions
for Libyans who have a right to them on the basis of Italian records
and pensions for their heirs, and the return to Libya of manuscripts
and artifacts removed from Libya in colonial times. The costs
of these social projects amount to a small fraction of the total
expenditure. The two countries also commit themselves to settling
disputes over payments owed by Libya to Italian firms that operated
in the country in the past.
In the third section, the treaty states that a Partnership Committee
will be set up to consolidate the new cooperation in multiple fields
in order to promote "common objectives of solidarity between people
and the progress of humanity." Article 18 refers to the "strategic
importance" of bilateral collaboration in the energy sector. The
next article deals with the "intensifying" of cooperation in
fighting terrorism, organized crime, drug trafficking and illegal
immigration. The two parties also agree to set up a border control
system for Libyan land borders (50 percent funded by Italy and 50
percent by the EU) to be run by Italian companies. The last articles
of the treaty deal with cooperation between the two countries' armed
forces. Industrial partnership in the defense sector is envisaged.
The treaty does not specify the sources of the $5 billion and,
at first, many wrongly assumed that the Italian treasury would be
saddled with the tab. But an appendix to the bill presented to the
Italian parliament reveals that the funds will not be taken directly
from Italian taxpayers, but rather will be covered by a corporate
income tax of up to 4 percent imposed on profits made by Italian
oil companies operating in Libya. Although Italian oil giant ENI is
not explicitly mentioned in the treaty, the general understanding
is that the burden of payment promised in the treaty will fall on
ENI's shoulders. ENI is already the largest foreign oil operator
in Libya, extracting an average of 550,00 barrels per day. In 2008,
the Italian company, a sprawling conglomerate with 76,000 employees,
two divisions headquartered in Milan and a third based in Rome, inked
new gas and oil contracts with Libya that will protect its preferred
position there until 2047.[10]
In fact, the treaty was strategic in paving the way for the
investment of Libyan sovereign wealth funds in a number of Italian
companies. Since October 2008, the Libyan Central Bank has purchased
$64.6 million in ENI stock and expressed interest in buying up to 10
percent of the company -- "a positive thing," CEO Paolo Scaroni told
Italian parliamentarians. The value of ENI stock went up by almost 15
percent when Libya announced its interest in further investment. Libya
has also bought shares in two Italian banks, including the
second-largest one, Unicredito, of which the North African country
now owns 5 percent.[11] The treaty also advantages smaller Italian
firms operating in Libya, as these companies were previously obliged
to pay "success fee" of up to 2 percent on the total value of signed
contracts. This tax went to a joint Libyan-Italian company that in
turned transferred the revenues to a "social fund." Created in 1998,
this fund had the alleged aim of contributing to Libya's social
and economic development and, ultimately, overcoming the effects of
colonialism. With the treaty, Libya agreed to stop demanding this
"success fee" and to shut down the joint company. Finally, the treaty
will benefit large Italian engineering and construction firms, such as
Impregilo, which are the most likely to win contracts for the planned
infrastructure projects. In this respect, it is not unfair to surmise
that the envisaged payments to this and other construction firms
are comparable to a state-sponsored capital injection into Italian
private companies in order to boost Italy's ailing economy.
The Libyan state is also reaping rewards; according to a Libyan
official, investment in ENI will allow the Italian firm and Libya's
national oil company to prospect together for fossil fuel deposits
in third countries. Obviously, Libya will also benefit from the new
infrastructure projects that Italy commits itself to, but the main
economic impact of the treaty will be in fostering foreign investment
and the joint ventures that the North African country needs to bolster
its insufficient technical know-how. By agreeing to solve pending legal
disputes with a number of Italian companies who have been waiting to
see their bills settled since the 1980s, Libya is trying to show the
business community that it will honor contracts and thereby increase
the international private sector's confidence in the country.
Ultimately, the Italians hope that the agreement will boost Libya's
commitment to combating illegal migration across the Mediterranean --
a hot-button issue in Italian politics. In 2008, some 40,000 African
migrants arrived somewhere on Italian soil, many of them from Libyan
jumping-off points like Zuwara, west of Tripoli. Italy maintains a
"reception center" for such migrants on the Mediterranean island
of Lampedusa and it is routinely beyond its small capacity.[12]
Politicians in Italy and in the EU, which has recently committed
to paying $20 million to Libya to cope with migration, consider
combating human trafficking to be critical issue. But no matter how
large the increase in illegal migration from North Africa (it was
up 75 percent in 2008), it is important to note that the amount of
attention to illegal immigration by sea is disproportionate to its
actual extent. In fact, immigrants arriving in Italy by sea constituted
only 10-11 percent of the total alighting in Italy in 2007 and less
than 15 percent in 2008. Images of African corpses floating off the
Italian coasts, footage of pregnant woman crammed into wooden vessels
and news of uprisings at the "reception centers," however, attract
overwhelming media attention and thus influence public perceptions. As
a result of the symbolic importance of being seen to defend national
borders, countering this human trafficking from Libya is pitched and
perceived as a national priority.[13]
This treaty is unique for a number of reasons, but primarily because
never before has a European state voluntarily agreed to pay a financial
package to a country it once colonized. The one thing that is not a
novelty, however, is the concept of reparations for colonial rule,
which has gained currency in recent years despite the formal judicial
impediments.
The Problem of Reparations for Colonial Rule
The idea that nations and peoples should seek reparations for
exceptional injustices is linked to the legal principle according to
which punishment is required as a deterrent against similar actions
being committed again; it is also tied to the idea that those who
committed injustices have a moral debt toward those who have suffered
and, conversely, that victims have the right to seek redress for their
suffering. It is on these premises that Germany paid reparations to
the victims of the Holocaust and in 1952 reached an agreement with
Israel for the payment of $222 million for the cost of resettling
the Jews who had fled from Nazi-controlled countries.[14] In 1990,
Austria made payments totaling $25 million to survivors of the
Holocaust. In 2001 the German government and a consortium of German
and American companies reached a Holocaust slave labor settlement of
$6 billion. In 1988 the US Congress signed into law a bill titled the
Civil Liberties Act, which allowed the US government to compensate
Japanese Americans who had been interned during World War II.
Despite these important historical precedents, all related to
redressing the injustices committed in World War II, the idea that
European states ought to make amends for the suffering inflicted upon
their colonial subjects prior to, during or after World War II remains
a controversial one. Unlike the settlement for the interned Japanese,
who were citizens or at least residents of the nation that perpetrated
the injustice, colonial reparations are being demanded by citizens
of territories that have long since become independent states. When
the matter becomes an international dispute, unless reparations are
agreed upon on a spontaneous basis without resorting to courts (as
was the case for the payments to Holocaust victims), the main problem
becomes finding the legal forum that is competent to adjudicate such
claims. Another crucial question is whether it is even possible to
quantify the damage of colonial rule to a population. Furthermore,
even if one were to list and assign a monetary value to the damages,
how are the alleged victims of colonial rule supposed to be
identified? Not all suffered as a result of European imperialism;
in the case of Libya, some benefited. Some availed themselves of
new opportunities to acquire education, accumulate wealth or work in
the colonial service. Moreover, as Rhoda Howard-Hassmann and Anthony
Lombardo have pointed out, it is generally difficult to differentiate
the costs and benefits of colonial rule and those of post-colonial
successor states. "Individual victims of colonialism still alive have
been living under independent, post-colonial rule for 25 to 50 years,
depending on the country. Post-colonial rulers were violators in their
own right of the principles of bodily integrity, non-discrimination
and private property" that colonial rule is accused of violating.[15]
Aside from Libya, few other formerly colonized states have tried hard
to get reparations from their European ex-rulers and, when they have,
it has been to no avail. In the early 1990s, the Organization of
African Unity appointed a so-called Group of Eminent Persons with the
mandate to explore the modalities and strategies of an African campaign
of restitution similar to the compensation paid by Germany to Israel
and the survivors of the Holocaust.[16] That campaign failed because
its members could not decide whether slavery, European colonialism
or neo-colonialism had caused the greatest harm to Africans. In 2004
Namibia's Herero tribesmen filed several lawsuits in US courts against
German companies and the German government demanding $4 billion in
compensation for the massacre of 65,000 Herero during Germany's rule
in Namibia some 100 years ago.[17] The German government issued an
apology but ruled out financial compensation for victims' descendants,
on the grounds that Germany was supporting its former colony with
development aid that had already totaled more than $1 billion.[18]
The most recent quest for compensation is that initiated by the
Kenya Human Rights Commission, which represents the survivors of
the so-called Mau Mau rebellion. In 2008 the commission filed a
lawsuit in the British High Court demanding compensation for the
death of thousands of Kikuyu who between 1952 and 1960 were killed
in the detention camps of the British colonial government. Insiders,
however, believe that the ongoing Kenyan lawsuit will bear no fruit.
The laws concerning reparations that have developed since World
War II refer for the most part to reparations between states
for violations of treaty obligations or other agreements. As
reparations are required under international law for genocide and
crimes against humanity, a number of countries have been able to
file reparation claims at the International Court of Justice for
massive violations that have occurred since the promulgation of
the 1948 Genocide Convention. Legally speaking, if the gross harm
that Algeria suffered during its war for independence from France
(1954-1962) was to be defined as abuse of human rights, then Algeria
or individual Algerians might have grounds for pursuing legal action
for reparation claims (unless the amnesty law signed at the end of
the war or any subsequent bilateral agreements with France ruled out
reparations a priori). Unfortunately for Middle Eastern nations that
seek compensation from the European countries that ruled them in the
first half of the century, international law does not make provisions
for retroactive payments for suffering prior to the 1948 Convention. If
a retroactive application were permitted, there would be no limit
to the potential claims that could be made at the International
Court of Justice to remedy any genocide in history. In that case,
the Armenian group Collective 2015: Reparations, an organization
that calls on Turkey to pay reparations alongside recognition
of the Armenian genocide, could have overcome Turkey's continued
denial of the Armenian genocide by filing suit in an international
court with recognized jurisdiction. In juridical terms, however, the
Armenians and other nations or social groups who suffered major human
rights abuses prior to World War II cannot raise their claims in an
international court, because those forums do not have jurisdiction over
historical violations. Holocaust reparation claims, being the result
of a voluntary political agreement between Israel and West Germany,
were not part of a lawsuit and thus did not require international
law to coerce Germany to pay.
If no spontaneous reparation agreement is in place and international
courts have no jurisdiction, the descendants of victims of genocide
and massive human rights violations occurring prior to World War II
could attempt to have their case heard in US district court. This is
the legal channel that the Herero and other descendants of victims
of historical abuses have embarked upon. While the United States
is not involved in the case on either the plaintiff's side or the
defendant's, US courts can still claim jurisdiction under the Alien
Tort Claims Act. This 1789 law, which is increasingly used by human
rights activists and lawyers, allows US courts to hear any case in
which victims of human rights abuses perpetrated by the state seek
civil action or reparations from the state. Even if the Herero case
has not met with success in the US court system, one cannot a priori
rule out the possibility that other claims for reparations could.[19]
But regardless of the strength of the moral claims that formerly
colonized countries present, the exigencies of practical politics
may impede these countries from securing monetary compensation for
the cruelties of the nineteenth and twentieth centuries.
Are These Payments Reparations?
Reparations, however, need not be only about money. In the body of
international law, the term "reparations" is used in a wide sense
to refer to all those measures that may be employed to redress the
various types of harm that victims may have suffered as a consequence
of certain crimes.[20] Elsewhere, the term is used to signify
"reparation programs" aimed at distributing justice to society at
large. In either sense, the term, connected etymologically to the word
"repair," suggests a field of interrelated activity oriented around
repairing frayed or torn relations handed down from the past. Monetary
compensation can be an important component, but the modalities of
repair are manifold and may also involve trials of perpetrators,
truth commissions, social policies designed to rectify inequalities,
restitution of artifacts, memorials, changes in history curricula
and more.[21] According to transitional justice theory, which Libya
refers to, reparation projects ought to be linked to such complementary
initiatives.[22]
Bearing in mind these considerations, further problems with the
Italian-Libyan treaty become clear. First of all, its stated aim to
close a painful "chapter of the past" stands contrary to the goals
of reparation politics. Furthering historical inquiry should go hand
in hand with the process of settling past disputes. Reparations
without steps to ascertain the truth about past violations may be
perceived as an attempt to buy the victims' silence and could be
counterproductive. Aside from government-funded research on the
manfiyun, relatively little serious scholarship has looked into
Italian rule in Libya, considered one of the most violent colonial
experiments in the Arab world. Whole chapters have yet to be written
on the establishment of concentration camps in Cyrenaica and Syrtica,
where more than 100,000 Bedouins are believed to have died. Similarly,
little has been written on the so-called flying courts, mobile colonial
tribunals that flew into combat areas and sentenced to death thousands
of captured Libyans. More symbolically, Italy has yet to release the
"missing" proceedings of the trial of 'Umar al-Mukhtar, who was hanged
at the age of 70. These are just a few of the most glaring gaps in
knowledge of the colonial history of Libya. How can this treaty propose
to close a chapter of the past when that chapter has not been written?
The second problem with the treaty lies in how the payments are being
distributed. The $5 billion that Italy has promised will not take
the form of cash payments or other direct compensation to Libyan
individuals or families who were the victims of Italian rule (as is
the case for German compensation of Holocaust victims). The so-called
reparations take the form of Italian investments in infrastructure,
defense and border control technology, and only to a much smaller
extent of services and scholarships. The money will be pumped back
into Italian construction and engineering firms who will be in charge
of building the jointly agreed-upon infrastructure projects. In
this respect, these payments resemble tied aid, against which some
countries, like Britain, have already enacted legislation.
In theory, the fact that payments go to infrastructure projects
rather than being divided up among the victims of colonial rule is
not reason to disqualify them entirely as "reparations." Scholars
have shown that there are two types of reparations for colonial
rule: One is restorative, aimed at compensating those who have been
physically hurt in the past, and the other is what John Torpey has
called "anti-systemic."[23] The latter is rooted in the idea that
past systems of domination, such as colonial rule, were generally
racist, violent and unjust, and are the cause of continuing economic
disadvantage suffered by those who lived under the systems or their
descendants. This type of claim "views reparations as a means of
transforming the current conditions of deprivation suffered by the
groups in question, and is more frequently connected to broader
projects of social transformation."[24]
Had Italy and Libya programmed projects specifically aimed at a social
transformation, it would be possible to categorize these payments as
"anti-systemic." But informal conversations with a number of Italian
government officials who were directly involved with the drafting of
the treaty and the negotiation process reveal that, on the Italian
side, little thought was given to the social function of these
payments and how they would benefit the past victims of colonial
rule. Again, aside from housing, scholarships and radar, the signed
treaty does not even specify the types of infrastructure projects to be
funded. Italians therefore appear to have been more concerned with the
treaty's economic payoff to Italy than its social function in Libya.
No Blueprint
A number of Italian scholars have criticized the treaty for failing
to emphasize the historical dimension of Italy's relations with Libya
and for omitting any mention of the past crimes that, allegedly, this
agreement seeks to redress. "In short, Italy is paying $5 billion,
essentially an indemnity for the crimes committed over 30 years in
Libya and for the 100,000 deaths that we caused, but in the treaty
there is no mention of that," stated historian Angelo Del Boca.[25]
Baffled, Del Boca wondered if Berlusconi specifically requested
the omission of history or if the two parties had so decided at
the very beginning of the negotiations. Or could it be possible,
he mused sardonically, that they simply "forgot" to mention the
past? Sergio Romano, a former Italian ambassador who has published
on the Italian colonial past in Libya, was similarly critical, but
for other reasons. He called the Benghazi meeting between Berlusconi
and Qaddafi a "small theater of hypocrisy" where "the Libyan leader
pretended to believe that Italy was the cause of all of Libya's
problems; and the Italian premier pretended to feel regret for his
country's colonial past."[26] Surprisingly, Italy's ratification of
the treaty in early February 2009 did not trigger much debate in the
Italian media, which at the time was busy covering the first days
of the Obama presidency and the aftermath of Israel's attacks in
Gaza. The criticisms of the treaty voiced by members of Parliament
were not echoed, by and large, in the newspapers. Given the amount
of money involved and the absolute novelty of a treaty of this type,
one would have expected Italian intellectuals to discuss the treaty's
moral and philosophical dimensions, if not the historical ones. But
that debate never took place.
A few Libyans voice the opinion that the amount to be paid by Italy --
$5 billion -- is insulting, but most seem to cherish the agreement as
a just settlement and a moral victory. On the streets of Tripoli,
ordinary Libyans claim that Italians and Libyans are now "sawa
sawa," which in the local dialect means "the same" or "equals." In
their eyes, thanks to this agreement Italy has once and for all set
aside the discriminatory and racist attitude that characterized the
colonial period. Clearly such opinions mirror the official rhetoric
that the country's state-controlled media has been broadcasting. The
Libyan media has referred to the financial aspects of the treaty as
payments for infrastructure projects in Libya, but has so far failed
to highlight the fact that the funds will benefit Italian companies
first and foremost. A few Libyans, both inside the country and among
exiles, have criticized the treaty as opportunistic and compared
Berlusconi to a marionette whose words are in reality those of the
puppeteer. One such critic was the 80-year old son of 'Umar al-Mukhtar,
the man on the receiving end of Berlusconi's apology in the tent in
August. Apparently, he had originally refused to meet the Italian
premier, who he accuses of representing a country that still "hates
the Libyan people and hates 'Umar al-Mukhtar," but was eventually
compelled by the Libyan authorities to attend.[27]
Clearly, those who thought that Italy's announced scheme for Libya
would trigger a similar course of action across the rest of the Arab
world will be disappointed. First of all, it is highly unlikely that
the two other former colonial powers in the region would consider
reparation payments, in whatever form, as a priority. Secondly,
no other Arab state has yet led a government-sponsored campaign to
demand reparations for colonial rule in the same way that Libya or
other African states have done over the past 30 years, or even shown
interest in the idea. The few calls for colonial reparations coming
from Egypt and Algeria originated in individuals or political parties
that have not convinced their governments to follow Libya's example.
Now that the details of the Italian-Libyan accord are known, the Libyan
example is more troubling as a potential precedent. The treaty is an
important step forward in the reconciliation process between Libya and
its former colonial master, but it should not necessarily be upheld
as a blueprint for other countries' quests for compensation. It is
not with money alone that Italian crimes in Libya -- or those of
other nations elsewhere -- will be redressed.
Endnotes
----------------------------- -------------------------------------------------- -
[1] Corriere della Sera, August 30, 2008.
[2] Tripoli Post, September 7, 2008.
[3] Corriere della Sera, August 30, 2008.
[4] See, for instance, Karim Kebir, "La France a l'exemple italienne:
'El Cavaliere,' Sarkozy et nous," Liberté, September 1, 2008;
and Francois Soudan, "Commedia dell'arte," Jeune Afrique, September
7, 2008.
[5] ADNKronos, September 2, 2008.
[6] Gamal Essam El-Din, "Climbing on the Bandwagon," al-Ahram Weekly,
October 9-15, 2008.
[7] Deutsche Presse Agentur, September 26, 2001.
[8] Agence France Presse, December 4, 2008.
[9] For the full text of the treaty in Italian, see "Ratifica ed
esecuzione del Trattato di amicizia, partenariato e cooperazione tra
la Repubblica italiana e la Grande Giamahiria araba libica popolare
socialista, fatto a Bengasi il 30 agosto 2008," in Atti Parlamentari,
Camera dei Deputati, 2041/XVI, presented to the Parliament on December
23, 2008.
[10] Associated Press, December 11, 2008.
[11] Platts Oilgram News, December 9, 2008.
[12] Independent, December 29, 2008.
[13] Salvatore Coluccello and Simon Massey, "Out of Africa: The Human
Trade Between Libya and Lampedusa," Trends in Organized Crime 10
(2007).
[14] Elazar Barkan, The Guilt of Nations: Restitution and Negotiating
Historical Injustices (Baltimore: John Hopkins University Press,
2000), pp. 3-29.
[15] Rhoda E. Howard-Hassmann, Reparations to Africa (Philadelphia:
University of Pennsylvania Press, 2008), p. 54.
[16] Rhoda E. Howard-Hassmann, "Reparations to Africa and the Group
of Eminent Persons," Cahiers d'Ã~Itudes Africaines 45 (2004).
[17] Allan D. Cooper, "Reparations for the Herero Genocide: Defining
the Limits of International Litigation," African Affairs 106 (January
2007).
[18] BBC News, August 14, 2004.
[19] Jeremy Sarkin and Carly Fowler, "Reparations for Historical
Human Rights Violations: The International and Historical Dimensions
of the Alien Torts Claim Act Genocide Case of the Herero of Namibia,"
Human Rights Review 9 (2008).
[20] Pablo De Greiff, "Justice and Reparations," The Handbook of
Reparations (Oxford: Oxford University Press, 2006), p. 452.
[21] John Torpey, Making Whole What Has Been Smashed: On Reparation
Politics (Cambridge, MA: Harvard University Press, 2006), p. 49.
[22] On transitional justice, see the website of the International
Center for Transitional Justice: http://www.ictj.org.
[23] John Torpey, "Making Whole What Has Been Smashed: Reflections
on Reparations," Journal of Modern History 73/2 (June 2001).
[24] Ibid., p. 337.
[25] Angelo Del Boca, "Solo soldi: La memoria non c'entra sui massacri
nemmeno una parola," La Repubblica, March 3, 2009.
[26] Sergio Romano, "Scuse italiane alla Libia e teatrino delle
ipocrisie," Corriere della Sera, October 4, 2008.
[27] Tripoli Post, August 30, 2008.
Claudia Gazzini
Middle East Report Online
http://www.merip.org/mero/mero031609.html
M arch 17 2009
Under a tent in Benghazi on August 30, 2008, Silvio Berlusconi bowed
symbolically before the son of 'Umar al-Mukhtar, hero of the Libyan
resistance to Italian colonial rule. "It is my duty to express to you,
in the name of the Italian people, our regret and apologies for the
deep wounds that we have caused you," said the Italian premier.[1]
Eastern Libya was the site of the bulk of the armed resistance to
the Italian occupation, which lasted from 1911 to 1943. More than
100,000 Libyans are believed to have died in the counterinsurgency
campaign, many in desert prison camps and in southern Italian penal
colonies. Inside the tent, Berlusconi and Libyan leader Mu'ammar
al-Qaddafi signed a historic agreement according to which Italy will
pay $5 billion over the next 20 years, nominally to compensate Libya
for these "deep wounds." The treaty was ratified by Italy on February
3 and by Libya on March 1.
Politicians in both Libya and Italy have often presented the $5 billion
as reparations for the harm done to Libya by colonial rule. Qaddafi
hailed the treaty as an important historical precedent that proves
that "compensation entails condemnation of colonialism regardless of
the amount paid."[2] Yet neither the title nor the text of the treaty
mentions the word "reparations." The text alludes to settlement of
colonial-era disputes, but officially the accord is called a "treaty
of friendship, partnership and cooperation."
The treaty was certainly not signed because Italy has suddenly come to
terms with its colonial past and desires to make amends. Although the
premier has made public noises of atonement for Italy's colonial past,
Italians suffer from a general colonial amnesia and know very little
about their country's adventures in Africa -- far less, for instance,
than the French know about Algeria. Even the 1981 Anthony Quinn vehicle
Lion of the Desert, about Mukhtar's rebellion, was utterly banned
in Italy for many years because, in the government's words, it was
"damaging to the Italian army's honor." The original English-language
version of the movie has recently been screened at film festivals
and seminars, but it has never been dubbed into Italian, and Italian
TV stations have yet to broadcast it. The Italian government, for
its part, still seems more interested in "turning the page" on the
past than in exploring the full extent of the violence perpetrated
in North Africa three generations ago. The financial package that
Italy and Libya agreed upon would therefore be better understood as
the expression of a nexus of interlocking interests: on the Libyan
side, Qaddafi's historical commitment to reparation politics and
his quest for moral victory over the country's former colonizers,
and on the Italian side, strategic and economic gain. Berlusconi,
with characteristic tact, has openly and repeatedly described the
purpose of the treaty as "less illegal immigrants and more oil."[3]
Be that as it may, Algerian and Egyptian politicians and intellectuals,
and a number of activists from sub-Saharan Africa, have proclaimed
that their countries should get deals similar to Libya's for the
injustices they suffered at the hands of European colonial powers.[4]
These injustices include the killings of civilians during anti-colonial
uprisings, the destruction of infrastructure during World Wars I
and II, and the distortion of local economies. Members of Algeria's
National Liberation Front hoped that, after the Italian precedent,
the European Union would be able to put pressure on France and "get
it to make amends for what it did in Algeria."[5] Ibrahim Salih,
former chairman of Egypt's Court of Cassation, claims that Britain
owes Egypt no less than 100 billion pounds ($140 billion). "They
[the British] plundered Egypt during World War I to cover the costs
of their battles against the Turkish, bought Egyptian high-quality
cotton for 20 years at very cheap prices, killed many Egyptians who
joined demonstrations against their occupation and manipulated the
country's wealth in violation of democratic rules and human rights,"
Salih opined. "Are these crimes not serious enough for England to
pay compensation or even offer an apology?" Not surprisingly, the
British do not see the parallel: A British diplomat based in Cairo
ridiculed the Italian-Libyan agreement as "media propaganda" aimed
at appeasing Qaddafi and opening the door for Italian companies to
tap the lucrative oil market.[6]
Setting aside the self-interest in this diplomat's cynical reaction,
there are important reasons why the Italian-Libyan treaty is not a
model to be emulated.
The Italian-Libyan Treaty
The two major ex-colonial powers in the Arab world, Britain and
France, have refused the very idea of state-to-state reparations
or individual financial payments to their former subjects in the
Middle East or elsewhere in Africa. Although Britain has atoned for
some of the massacres carried out during its reign in India and New
Zealand, the issue of apology, let alone financial compensation,
to Arab territories under British rule has never been a matter of
debate. As for France, in 2001 President Jacques Chirac admitted
for the first time France's responsibility for the 1962 massacre
of hundreds of thousands of Algerians.[7] More recently, President
Nicolas Sarkozy recognized that French colonialism in Algeria was
"profoundly unjust" but brushed aside an apology for the 132 years of
occupation as "unnecessary" and stated that the two countries should
look toward the future rather than the past.[8]
In light of the lack of precedent, Italy's decision to sign a treaty
with Libya pledging a staggering $5 billion to its former colony came
as a surprise. In the 1990s, Italy paid for the construction of a
pediatric hospital in Benghazi and funded a research project on the
deportation of thousands of Libyans to penal colonies in southern
Italy. Such projects were carried out under the understanding that
they were small but concrete gestures aimed at redressing past
wrongdoing. Around 2005, Libya began demanding that Italy make a
"grande gesto" and proposed that the former colonizer pay to transform
Libya's two-lane coastal road, built in the colonial period, into a
highway stretching from the Tunisian border to Egypt. Disagreements
dragged on as to whether Italy would pay for the feasibility study or
the actual highway construction, and doubts arose as to the project's
social utility.
Given the lack of legal compulsion, many wondered why Italy would even
enter negotiations for the treaty: $250 million per year over 20 years
is not an insignificant amount of money, especially in the midst of
the current economic recession. No individual Libyan has filed suit
in an Italian court seeking damages for colonial-era offenses; nor
has the Libyan government raised the issue at the International Court
of Justice. And there was certainly no pressure from Italian public
opinion -- to the contrary. The Association of Italians Repatriated
from Libya has long demanded that before paying reparations to Libya,
Italy should first compensate them for the property that Qaddafi
expropriated in the 1970s.
The greatest pressure to conclude the treaty came from the Libyan
government, keen to secure material concessions that would symbolize
Italy's admission of guilt for the colonial past. For over 30 years,
Libya has actively attempted to shed light on the depredations
of that era, so as to embarrass Italy into offering some sort of
compensation, something that has come to be known as "reparations
politics." Stealthier support for the treaty, however, came from
the Italian business and political establishment, eager to improve
bilateral relations with the North African country that is Italy's
main source of hydrocarbons and most important trading partner in
the Mediterranean basin.
The terms of the nine-page document signed by Berlusconi and Qaddafi,
the Treaty of Friendship, Partnership and Cooperation Between
the Italian Republic and the Great Socialist People's Libyan Arab
Jamahiriyya, were kept secret for nearly four months. Now that the text
has been disclosed by Italy, the enthusiasm of Italian big businessmen
and strategic thinkers is fairly easy to understand.[9] First is
the treaty's strong implication that the file of Libyan grievances
against Italy can now be sealed. In the preamble, the two parties
commit themselves to reinforcing peace, security and stability in the
Mediterranean and promoting cooperation and integration through Italy
and Libya's respective roles in the European and African Unions. The
preamble also states that the purpose of the treaty is to develop a
"special and privileged" bilateral relationship that includes a strong
and wide-ranging partnership in political, economic and other areas.
The two countries propose to continue collaboration on research on
the manfiyun, the Libyans forcibly "rendered" to Italy early in the
colonial period, but nevertheless intend the agreement to close the
painful "chapter of the past." During the March celebrations for the
treaty's ratification, Berlusconi solemnly stated: "The past that with
this treaty we want to put behind our shoulders is a past that we,
children of the children, are guilty of and for which we beg your
forgiveness." (Skeptics who question Berlusconi's sincerity forget
that, no matter how hypocritical and orchestrated his remarks might
be, the very fact that an Italian head of state agreed to issue an
official and public apology bears a symbolic significance that one
cannot easily brush aside.)
After an anodyne first section, in which the two parties commit to
respect international law and the other's sovereignty, the treaty
gets down to business. In the second section, Italy vows to make
available funding -- up to $5 billion over the next 20 years -- for key
infrastructure projects, the nature of which is left undefined. Libya
will have the right to propose what type of infrastructure projects it
is interested in, whereas a joint committee of delegates from the two
countries will be in charge of examining the technical details and the
time frame for completion. The treaty states that these infrastructure
projects will be carried out exclusively by Italian companies, with
the funding managed by Italy. It does not specify, however, how this
money will be transferred. Libya, on the other hand, commits itself
to making available, at no cost, the land necessary for completion of
the projects, as well as helping to acquire those building materials
that can be obtained locally and waiving customs duties on whatever
needs to be imported. On top of these major infrastructure projects,
the treaty mentions special initiatives such as the construction of
200 housing units, the assigning of undergraduate and post-graduate
scholarships to 100 Libyan students a year, a health care program in
Italy for the victims of land mines, the reintroduction of pensions
for Libyans who have a right to them on the basis of Italian records
and pensions for their heirs, and the return to Libya of manuscripts
and artifacts removed from Libya in colonial times. The costs
of these social projects amount to a small fraction of the total
expenditure. The two countries also commit themselves to settling
disputes over payments owed by Libya to Italian firms that operated
in the country in the past.
In the third section, the treaty states that a Partnership Committee
will be set up to consolidate the new cooperation in multiple fields
in order to promote "common objectives of solidarity between people
and the progress of humanity." Article 18 refers to the "strategic
importance" of bilateral collaboration in the energy sector. The
next article deals with the "intensifying" of cooperation in
fighting terrorism, organized crime, drug trafficking and illegal
immigration. The two parties also agree to set up a border control
system for Libyan land borders (50 percent funded by Italy and 50
percent by the EU) to be run by Italian companies. The last articles
of the treaty deal with cooperation between the two countries' armed
forces. Industrial partnership in the defense sector is envisaged.
The treaty does not specify the sources of the $5 billion and,
at first, many wrongly assumed that the Italian treasury would be
saddled with the tab. But an appendix to the bill presented to the
Italian parliament reveals that the funds will not be taken directly
from Italian taxpayers, but rather will be covered by a corporate
income tax of up to 4 percent imposed on profits made by Italian
oil companies operating in Libya. Although Italian oil giant ENI is
not explicitly mentioned in the treaty, the general understanding
is that the burden of payment promised in the treaty will fall on
ENI's shoulders. ENI is already the largest foreign oil operator
in Libya, extracting an average of 550,00 barrels per day. In 2008,
the Italian company, a sprawling conglomerate with 76,000 employees,
two divisions headquartered in Milan and a third based in Rome, inked
new gas and oil contracts with Libya that will protect its preferred
position there until 2047.[10]
In fact, the treaty was strategic in paving the way for the
investment of Libyan sovereign wealth funds in a number of Italian
companies. Since October 2008, the Libyan Central Bank has purchased
$64.6 million in ENI stock and expressed interest in buying up to 10
percent of the company -- "a positive thing," CEO Paolo Scaroni told
Italian parliamentarians. The value of ENI stock went up by almost 15
percent when Libya announced its interest in further investment. Libya
has also bought shares in two Italian banks, including the
second-largest one, Unicredito, of which the North African country
now owns 5 percent.[11] The treaty also advantages smaller Italian
firms operating in Libya, as these companies were previously obliged
to pay "success fee" of up to 2 percent on the total value of signed
contracts. This tax went to a joint Libyan-Italian company that in
turned transferred the revenues to a "social fund." Created in 1998,
this fund had the alleged aim of contributing to Libya's social
and economic development and, ultimately, overcoming the effects of
colonialism. With the treaty, Libya agreed to stop demanding this
"success fee" and to shut down the joint company. Finally, the treaty
will benefit large Italian engineering and construction firms, such as
Impregilo, which are the most likely to win contracts for the planned
infrastructure projects. In this respect, it is not unfair to surmise
that the envisaged payments to this and other construction firms
are comparable to a state-sponsored capital injection into Italian
private companies in order to boost Italy's ailing economy.
The Libyan state is also reaping rewards; according to a Libyan
official, investment in ENI will allow the Italian firm and Libya's
national oil company to prospect together for fossil fuel deposits
in third countries. Obviously, Libya will also benefit from the new
infrastructure projects that Italy commits itself to, but the main
economic impact of the treaty will be in fostering foreign investment
and the joint ventures that the North African country needs to bolster
its insufficient technical know-how. By agreeing to solve pending legal
disputes with a number of Italian companies who have been waiting to
see their bills settled since the 1980s, Libya is trying to show the
business community that it will honor contracts and thereby increase
the international private sector's confidence in the country.
Ultimately, the Italians hope that the agreement will boost Libya's
commitment to combating illegal migration across the Mediterranean --
a hot-button issue in Italian politics. In 2008, some 40,000 African
migrants arrived somewhere on Italian soil, many of them from Libyan
jumping-off points like Zuwara, west of Tripoli. Italy maintains a
"reception center" for such migrants on the Mediterranean island
of Lampedusa and it is routinely beyond its small capacity.[12]
Politicians in Italy and in the EU, which has recently committed
to paying $20 million to Libya to cope with migration, consider
combating human trafficking to be critical issue. But no matter how
large the increase in illegal migration from North Africa (it was
up 75 percent in 2008), it is important to note that the amount of
attention to illegal immigration by sea is disproportionate to its
actual extent. In fact, immigrants arriving in Italy by sea constituted
only 10-11 percent of the total alighting in Italy in 2007 and less
than 15 percent in 2008. Images of African corpses floating off the
Italian coasts, footage of pregnant woman crammed into wooden vessels
and news of uprisings at the "reception centers," however, attract
overwhelming media attention and thus influence public perceptions. As
a result of the symbolic importance of being seen to defend national
borders, countering this human trafficking from Libya is pitched and
perceived as a national priority.[13]
This treaty is unique for a number of reasons, but primarily because
never before has a European state voluntarily agreed to pay a financial
package to a country it once colonized. The one thing that is not a
novelty, however, is the concept of reparations for colonial rule,
which has gained currency in recent years despite the formal judicial
impediments.
The Problem of Reparations for Colonial Rule
The idea that nations and peoples should seek reparations for
exceptional injustices is linked to the legal principle according to
which punishment is required as a deterrent against similar actions
being committed again; it is also tied to the idea that those who
committed injustices have a moral debt toward those who have suffered
and, conversely, that victims have the right to seek redress for their
suffering. It is on these premises that Germany paid reparations to
the victims of the Holocaust and in 1952 reached an agreement with
Israel for the payment of $222 million for the cost of resettling
the Jews who had fled from Nazi-controlled countries.[14] In 1990,
Austria made payments totaling $25 million to survivors of the
Holocaust. In 2001 the German government and a consortium of German
and American companies reached a Holocaust slave labor settlement of
$6 billion. In 1988 the US Congress signed into law a bill titled the
Civil Liberties Act, which allowed the US government to compensate
Japanese Americans who had been interned during World War II.
Despite these important historical precedents, all related to
redressing the injustices committed in World War II, the idea that
European states ought to make amends for the suffering inflicted upon
their colonial subjects prior to, during or after World War II remains
a controversial one. Unlike the settlement for the interned Japanese,
who were citizens or at least residents of the nation that perpetrated
the injustice, colonial reparations are being demanded by citizens
of territories that have long since become independent states. When
the matter becomes an international dispute, unless reparations are
agreed upon on a spontaneous basis without resorting to courts (as
was the case for the payments to Holocaust victims), the main problem
becomes finding the legal forum that is competent to adjudicate such
claims. Another crucial question is whether it is even possible to
quantify the damage of colonial rule to a population. Furthermore,
even if one were to list and assign a monetary value to the damages,
how are the alleged victims of colonial rule supposed to be
identified? Not all suffered as a result of European imperialism;
in the case of Libya, some benefited. Some availed themselves of
new opportunities to acquire education, accumulate wealth or work in
the colonial service. Moreover, as Rhoda Howard-Hassmann and Anthony
Lombardo have pointed out, it is generally difficult to differentiate
the costs and benefits of colonial rule and those of post-colonial
successor states. "Individual victims of colonialism still alive have
been living under independent, post-colonial rule for 25 to 50 years,
depending on the country. Post-colonial rulers were violators in their
own right of the principles of bodily integrity, non-discrimination
and private property" that colonial rule is accused of violating.[15]
Aside from Libya, few other formerly colonized states have tried hard
to get reparations from their European ex-rulers and, when they have,
it has been to no avail. In the early 1990s, the Organization of
African Unity appointed a so-called Group of Eminent Persons with the
mandate to explore the modalities and strategies of an African campaign
of restitution similar to the compensation paid by Germany to Israel
and the survivors of the Holocaust.[16] That campaign failed because
its members could not decide whether slavery, European colonialism
or neo-colonialism had caused the greatest harm to Africans. In 2004
Namibia's Herero tribesmen filed several lawsuits in US courts against
German companies and the German government demanding $4 billion in
compensation for the massacre of 65,000 Herero during Germany's rule
in Namibia some 100 years ago.[17] The German government issued an
apology but ruled out financial compensation for victims' descendants,
on the grounds that Germany was supporting its former colony with
development aid that had already totaled more than $1 billion.[18]
The most recent quest for compensation is that initiated by the
Kenya Human Rights Commission, which represents the survivors of
the so-called Mau Mau rebellion. In 2008 the commission filed a
lawsuit in the British High Court demanding compensation for the
death of thousands of Kikuyu who between 1952 and 1960 were killed
in the detention camps of the British colonial government. Insiders,
however, believe that the ongoing Kenyan lawsuit will bear no fruit.
The laws concerning reparations that have developed since World
War II refer for the most part to reparations between states
for violations of treaty obligations or other agreements. As
reparations are required under international law for genocide and
crimes against humanity, a number of countries have been able to
file reparation claims at the International Court of Justice for
massive violations that have occurred since the promulgation of
the 1948 Genocide Convention. Legally speaking, if the gross harm
that Algeria suffered during its war for independence from France
(1954-1962) was to be defined as abuse of human rights, then Algeria
or individual Algerians might have grounds for pursuing legal action
for reparation claims (unless the amnesty law signed at the end of
the war or any subsequent bilateral agreements with France ruled out
reparations a priori). Unfortunately for Middle Eastern nations that
seek compensation from the European countries that ruled them in the
first half of the century, international law does not make provisions
for retroactive payments for suffering prior to the 1948 Convention. If
a retroactive application were permitted, there would be no limit
to the potential claims that could be made at the International
Court of Justice to remedy any genocide in history. In that case,
the Armenian group Collective 2015: Reparations, an organization
that calls on Turkey to pay reparations alongside recognition
of the Armenian genocide, could have overcome Turkey's continued
denial of the Armenian genocide by filing suit in an international
court with recognized jurisdiction. In juridical terms, however, the
Armenians and other nations or social groups who suffered major human
rights abuses prior to World War II cannot raise their claims in an
international court, because those forums do not have jurisdiction over
historical violations. Holocaust reparation claims, being the result
of a voluntary political agreement between Israel and West Germany,
were not part of a lawsuit and thus did not require international
law to coerce Germany to pay.
If no spontaneous reparation agreement is in place and international
courts have no jurisdiction, the descendants of victims of genocide
and massive human rights violations occurring prior to World War II
could attempt to have their case heard in US district court. This is
the legal channel that the Herero and other descendants of victims
of historical abuses have embarked upon. While the United States
is not involved in the case on either the plaintiff's side or the
defendant's, US courts can still claim jurisdiction under the Alien
Tort Claims Act. This 1789 law, which is increasingly used by human
rights activists and lawyers, allows US courts to hear any case in
which victims of human rights abuses perpetrated by the state seek
civil action or reparations from the state. Even if the Herero case
has not met with success in the US court system, one cannot a priori
rule out the possibility that other claims for reparations could.[19]
But regardless of the strength of the moral claims that formerly
colonized countries present, the exigencies of practical politics
may impede these countries from securing monetary compensation for
the cruelties of the nineteenth and twentieth centuries.
Are These Payments Reparations?
Reparations, however, need not be only about money. In the body of
international law, the term "reparations" is used in a wide sense
to refer to all those measures that may be employed to redress the
various types of harm that victims may have suffered as a consequence
of certain crimes.[20] Elsewhere, the term is used to signify
"reparation programs" aimed at distributing justice to society at
large. In either sense, the term, connected etymologically to the word
"repair," suggests a field of interrelated activity oriented around
repairing frayed or torn relations handed down from the past. Monetary
compensation can be an important component, but the modalities of
repair are manifold and may also involve trials of perpetrators,
truth commissions, social policies designed to rectify inequalities,
restitution of artifacts, memorials, changes in history curricula
and more.[21] According to transitional justice theory, which Libya
refers to, reparation projects ought to be linked to such complementary
initiatives.[22]
Bearing in mind these considerations, further problems with the
Italian-Libyan treaty become clear. First of all, its stated aim to
close a painful "chapter of the past" stands contrary to the goals
of reparation politics. Furthering historical inquiry should go hand
in hand with the process of settling past disputes. Reparations
without steps to ascertain the truth about past violations may be
perceived as an attempt to buy the victims' silence and could be
counterproductive. Aside from government-funded research on the
manfiyun, relatively little serious scholarship has looked into
Italian rule in Libya, considered one of the most violent colonial
experiments in the Arab world. Whole chapters have yet to be written
on the establishment of concentration camps in Cyrenaica and Syrtica,
where more than 100,000 Bedouins are believed to have died. Similarly,
little has been written on the so-called flying courts, mobile colonial
tribunals that flew into combat areas and sentenced to death thousands
of captured Libyans. More symbolically, Italy has yet to release the
"missing" proceedings of the trial of 'Umar al-Mukhtar, who was hanged
at the age of 70. These are just a few of the most glaring gaps in
knowledge of the colonial history of Libya. How can this treaty propose
to close a chapter of the past when that chapter has not been written?
The second problem with the treaty lies in how the payments are being
distributed. The $5 billion that Italy has promised will not take
the form of cash payments or other direct compensation to Libyan
individuals or families who were the victims of Italian rule (as is
the case for German compensation of Holocaust victims). The so-called
reparations take the form of Italian investments in infrastructure,
defense and border control technology, and only to a much smaller
extent of services and scholarships. The money will be pumped back
into Italian construction and engineering firms who will be in charge
of building the jointly agreed-upon infrastructure projects. In
this respect, these payments resemble tied aid, against which some
countries, like Britain, have already enacted legislation.
In theory, the fact that payments go to infrastructure projects
rather than being divided up among the victims of colonial rule is
not reason to disqualify them entirely as "reparations." Scholars
have shown that there are two types of reparations for colonial
rule: One is restorative, aimed at compensating those who have been
physically hurt in the past, and the other is what John Torpey has
called "anti-systemic."[23] The latter is rooted in the idea that
past systems of domination, such as colonial rule, were generally
racist, violent and unjust, and are the cause of continuing economic
disadvantage suffered by those who lived under the systems or their
descendants. This type of claim "views reparations as a means of
transforming the current conditions of deprivation suffered by the
groups in question, and is more frequently connected to broader
projects of social transformation."[24]
Had Italy and Libya programmed projects specifically aimed at a social
transformation, it would be possible to categorize these payments as
"anti-systemic." But informal conversations with a number of Italian
government officials who were directly involved with the drafting of
the treaty and the negotiation process reveal that, on the Italian
side, little thought was given to the social function of these
payments and how they would benefit the past victims of colonial
rule. Again, aside from housing, scholarships and radar, the signed
treaty does not even specify the types of infrastructure projects to be
funded. Italians therefore appear to have been more concerned with the
treaty's economic payoff to Italy than its social function in Libya.
No Blueprint
A number of Italian scholars have criticized the treaty for failing
to emphasize the historical dimension of Italy's relations with Libya
and for omitting any mention of the past crimes that, allegedly, this
agreement seeks to redress. "In short, Italy is paying $5 billion,
essentially an indemnity for the crimes committed over 30 years in
Libya and for the 100,000 deaths that we caused, but in the treaty
there is no mention of that," stated historian Angelo Del Boca.[25]
Baffled, Del Boca wondered if Berlusconi specifically requested
the omission of history or if the two parties had so decided at
the very beginning of the negotiations. Or could it be possible,
he mused sardonically, that they simply "forgot" to mention the
past? Sergio Romano, a former Italian ambassador who has published
on the Italian colonial past in Libya, was similarly critical, but
for other reasons. He called the Benghazi meeting between Berlusconi
and Qaddafi a "small theater of hypocrisy" where "the Libyan leader
pretended to believe that Italy was the cause of all of Libya's
problems; and the Italian premier pretended to feel regret for his
country's colonial past."[26] Surprisingly, Italy's ratification of
the treaty in early February 2009 did not trigger much debate in the
Italian media, which at the time was busy covering the first days
of the Obama presidency and the aftermath of Israel's attacks in
Gaza. The criticisms of the treaty voiced by members of Parliament
were not echoed, by and large, in the newspapers. Given the amount
of money involved and the absolute novelty of a treaty of this type,
one would have expected Italian intellectuals to discuss the treaty's
moral and philosophical dimensions, if not the historical ones. But
that debate never took place.
A few Libyans voice the opinion that the amount to be paid by Italy --
$5 billion -- is insulting, but most seem to cherish the agreement as
a just settlement and a moral victory. On the streets of Tripoli,
ordinary Libyans claim that Italians and Libyans are now "sawa
sawa," which in the local dialect means "the same" or "equals." In
their eyes, thanks to this agreement Italy has once and for all set
aside the discriminatory and racist attitude that characterized the
colonial period. Clearly such opinions mirror the official rhetoric
that the country's state-controlled media has been broadcasting. The
Libyan media has referred to the financial aspects of the treaty as
payments for infrastructure projects in Libya, but has so far failed
to highlight the fact that the funds will benefit Italian companies
first and foremost. A few Libyans, both inside the country and among
exiles, have criticized the treaty as opportunistic and compared
Berlusconi to a marionette whose words are in reality those of the
puppeteer. One such critic was the 80-year old son of 'Umar al-Mukhtar,
the man on the receiving end of Berlusconi's apology in the tent in
August. Apparently, he had originally refused to meet the Italian
premier, who he accuses of representing a country that still "hates
the Libyan people and hates 'Umar al-Mukhtar," but was eventually
compelled by the Libyan authorities to attend.[27]
Clearly, those who thought that Italy's announced scheme for Libya
would trigger a similar course of action across the rest of the Arab
world will be disappointed. First of all, it is highly unlikely that
the two other former colonial powers in the region would consider
reparation payments, in whatever form, as a priority. Secondly,
no other Arab state has yet led a government-sponsored campaign to
demand reparations for colonial rule in the same way that Libya or
other African states have done over the past 30 years, or even shown
interest in the idea. The few calls for colonial reparations coming
from Egypt and Algeria originated in individuals or political parties
that have not convinced their governments to follow Libya's example.
Now that the details of the Italian-Libyan accord are known, the Libyan
example is more troubling as a potential precedent. The treaty is an
important step forward in the reconciliation process between Libya and
its former colonial master, but it should not necessarily be upheld
as a blueprint for other countries' quests for compensation. It is
not with money alone that Italian crimes in Libya -- or those of
other nations elsewhere -- will be redressed.
Endnotes
----------------------------- -------------------------------------------------- -
[1] Corriere della Sera, August 30, 2008.
[2] Tripoli Post, September 7, 2008.
[3] Corriere della Sera, August 30, 2008.
[4] See, for instance, Karim Kebir, "La France a l'exemple italienne:
'El Cavaliere,' Sarkozy et nous," Liberté, September 1, 2008;
and Francois Soudan, "Commedia dell'arte," Jeune Afrique, September
7, 2008.
[5] ADNKronos, September 2, 2008.
[6] Gamal Essam El-Din, "Climbing on the Bandwagon," al-Ahram Weekly,
October 9-15, 2008.
[7] Deutsche Presse Agentur, September 26, 2001.
[8] Agence France Presse, December 4, 2008.
[9] For the full text of the treaty in Italian, see "Ratifica ed
esecuzione del Trattato di amicizia, partenariato e cooperazione tra
la Repubblica italiana e la Grande Giamahiria araba libica popolare
socialista, fatto a Bengasi il 30 agosto 2008," in Atti Parlamentari,
Camera dei Deputati, 2041/XVI, presented to the Parliament on December
23, 2008.
[10] Associated Press, December 11, 2008.
[11] Platts Oilgram News, December 9, 2008.
[12] Independent, December 29, 2008.
[13] Salvatore Coluccello and Simon Massey, "Out of Africa: The Human
Trade Between Libya and Lampedusa," Trends in Organized Crime 10
(2007).
[14] Elazar Barkan, The Guilt of Nations: Restitution and Negotiating
Historical Injustices (Baltimore: John Hopkins University Press,
2000), pp. 3-29.
[15] Rhoda E. Howard-Hassmann, Reparations to Africa (Philadelphia:
University of Pennsylvania Press, 2008), p. 54.
[16] Rhoda E. Howard-Hassmann, "Reparations to Africa and the Group
of Eminent Persons," Cahiers d'Ã~Itudes Africaines 45 (2004).
[17] Allan D. Cooper, "Reparations for the Herero Genocide: Defining
the Limits of International Litigation," African Affairs 106 (January
2007).
[18] BBC News, August 14, 2004.
[19] Jeremy Sarkin and Carly Fowler, "Reparations for Historical
Human Rights Violations: The International and Historical Dimensions
of the Alien Torts Claim Act Genocide Case of the Herero of Namibia,"
Human Rights Review 9 (2008).
[20] Pablo De Greiff, "Justice and Reparations," The Handbook of
Reparations (Oxford: Oxford University Press, 2006), p. 452.
[21] John Torpey, Making Whole What Has Been Smashed: On Reparation
Politics (Cambridge, MA: Harvard University Press, 2006), p. 49.
[22] On transitional justice, see the website of the International
Center for Transitional Justice: http://www.ictj.org.
[23] John Torpey, "Making Whole What Has Been Smashed: Reflections
on Reparations," Journal of Modern History 73/2 (June 2001).
[24] Ibid., p. 337.
[25] Angelo Del Boca, "Solo soldi: La memoria non c'entra sui massacri
nemmeno una parola," La Repubblica, March 3, 2009.
[26] Sergio Romano, "Scuse italiane alla Libia e teatrino delle
ipocrisie," Corriere della Sera, October 4, 2008.
[27] Tripoli Post, August 30, 2008.