On November 18, 2104, The United Nations General Assembly decided, in its resolution 69/16 entitled "Programme of activities for the implementation of the International Decade for People of African Descent" to establish a Permanent Forum of People of African Descent.
On August 2, 2021, the United Nations General Assembly adopted its resolution 75/314, in which it formally operationalized the Permanent Forum as
"a consultative mechanism for people of African descent and other relevant stakeholders as a platform for improving the safety and quality of life and livelihoods of people of African descent, as well as an advisory body to the Human Rights Council, in line with the programme of activities for the implementation of the International Decade for People of African Descent and in close coordination with existing mechanisms".
The first session of the Permanent Forum on People of African Descent (PFPAD) will be held from 5 to 8 December 2022, in Geneva, Switzerland.
Siphiwe Baleka, as President of the Balanta B’urassa History & Genealogy Society in America (BBHAGSIA) and as a member of the International Civil Society Working Group (ICSWG) of PFPAD, has been invited by Yury Boychenko, Chief at the Anti-Racial Discrimination Section, Office of the High Commissioner for Human Rights, to attend the first session of PFPAD.
Background
Resolution 69/16 that establishes PFPAD, states,
“Recalling further its resolution 52/111 of 12 December 1997, by which it decided to convene the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, and its resolutions 56/266 of 27 March 2002, 57/195 of 18 December 2002, 58/160 of 22 December 2003, 59/177 of 20 December 2004 and 60/144 of 16 December 2005, which guided the comprehensive follow-up to the World Conference and the effective implementation of the Durban Declaration and Programme of Action, . . .
Committed to upholding human dignity and equality for the victims of slavery, the slave trade and colonialism, in particular people of African descent in the African diaspora,
Welcoming the work undertaken by the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action on the elaboration of a draft programme of activities for the implementation of the International Decade for People of African Descent, . . .
I. Introduction
A. Background
1. The International Decade for People of African Descent, to be observed from 2015 to 2024, constitutes an auspicious period of history when the United Nations, Member States, civil society and all other relevant actors will join together with people of African descent and take effective measures for the implementation of the programme of activities in the spirit of recognition, justice and development. The programme of activities recognizes that the Durban Declaration and Programme of Action is a comprehensive United Nations framework and a solid foundation for combating racism, racial discrimination, xenophobia and related intolerance, and represents a new stage in the efforts of the United Nations and the international community to restore the rights and dignity of people of African descent.
2. The implementation of the programme of activities for the International Decade is an integral part of the full and effective implementation of the Durban Declaration and Programme of Action and in compliance with the International Convention on the Elimination of All Forms of Racial Discrimination as the principal international instruments for the elimination of racism, racial discrimination, xenophobia and related intolerance. Important synergies should therefore be achieved through the International Decade in the fight against racism, racial discrimination, xenophobia and related intolerance.
3. The Durban Declaration and Programme of Action acknowledged that people of African descent were victims of slavery, the slave trade and colonialism, and continue to be victims of their consequences. The Durban process raised the visibility of people of African descent and contributed to a substantive advancement in the promotion and protection of their rights as a result of concrete actions taken by States, the United Nations, other international and regional bodies and civil society.
4. Regrettably, despite the above-mentioned advances, racism and racial discrimination, both direct and indirect, de facto and de jure, continue to manifest themselves in inequality and disadvantage. People of African descent throughout the world, whether as descendants of the victims of the transatlantic slave trade or as more recent migrants, constitute some of the poorest and most marginalized groups. Studies and findings by international and national bodies demonstrate that people of African descent still have limited access to quality education, health services, housing and social security. In many cases, their situation remains largely invisible, and insufficient recognition and respect has been given to the efforts of people of African descent to seek redress for their present condition. They all too often experience discrimination in their access to justice, and face alarmingly high rates of police violence, together with racial profiling. Furthermore, their degree of political participation is often low, both in voting and in occupying political positions. . . .
C. Objectives of the International Decade
8. Non-discrimination and equality before and of the law constitute fundamental principles of international human rights law, and underpin the Universal Declaration of Human Rights and the main international human rights treaties and instruments. As such, the main objective of the International Decade should be to promote respect, protection and fulfillment of all human rights and fundamental freedoms by people of African descent, as recognized in the Universal Declaration of Human Rights. This main objective can be achieved through the full and effective implementation of the Durban Declaration and Programme of Action, the outcome document of the Durban Review Conference and the political declaration commemorating the tenth anniversary of the adoption of the Durban Declaration and Programme of Action, and through the universal accession to or ratification of and full implementation of the obligations arising under the International Convention on the Elimination of All Forms of Racial Discrimination and other relevant international and regional human rights instruments. “
Therefore, a thorough review of the Durban Declaration, its implementation, and other relevant international and regional human rights instruments is required to make an effective intervention at PFPAD. Below is such a review for the benefit of Balanta descendants in the United States, conscious citizens of the Republic of New Afrika, and Afro Descendant people commonly referred to as the “African Diaspora” that are descended from people that were captured and trafficked across the Atlantic ocean as prisoners of war and enslaved in the Americas and Caribbean.
REVIEW
As acknowledged in my Statement to the 20th session of the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action Geneva, Switzerland 10-21 October 2022 which is also posted on PFPAD’s website,
“The process of liberation is irresistible and irreversible, and its impediment by foreign domination constitutes a denial of fundamental human rights.”
Moreover, both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) clearly state,
“Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights, . . .
International law has thus determined that the rights of people of African descent are human rights; they are indivisible and interdependent. Civil, political, economic, social and cultural rights cannot be realized in isolation from each other.
POLITICAL RIGHTS: SELF DETERMINATION
Full political rights include the right of self determination. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States stipulates that the creation of a sovereign and independent State, or the acquisition of any other freely decided political status, are all means through which people can exercise the right to self-determination. Since 1863, the time of the Emancipation Proclamation in the United States of America, 151 new independent nations have been established.
Unfortunately, since the assassination of President Lincoln, knowledge of the full political rights in international law has been kept from African Americans through official state-sanctioned conspiracy of the United States government. This was brought to the attention of PFPAD in my statement.
At the close of the American Civil War in 1865, the United States Government recognized the inalienable (human) rights of the new class of free men - namely the right to seek admission, as citizens, to the American community; the right to return home, to Africa; the right to general emigration and the right to set up an independent State of its own. New Afrikans were given possessory title to territories and set up New Afrikan self-governing colonies under the protection of the United States military.
Congress responded to President Lincoln’s recommendation in separate acts, providing in an act, April 16, 1862, for the release of certain persons held to service or labor in the District of Columbia, including those to be liberated by the act, as may desire to emigrate to the Republic of Hayti or Liberia, or such other country beyond the limits of the United States, as the President may determine, provided the expenditure does not exceed $100 ($2,589.92 in 2021) for each immigrant. The act provided that the sum of $100,000 ($3.15 million in 2021) out of any money in the Treasury should be expended under the direction of the President to aid the right of return of such persons of African descent then residing in the District of Columbia. It further provided that later, on July 16, an additional appropriation of $500,000 ($15.8 million in 2021) should be used in securing the right of return of free persons to the African continent. A resolution directly authorizing the President’s participation provided “that the President is hereby authorized to make provision for the transportation, colonization and settlement in some tropical country beyond the limits of the United States, of such persons of the African race, made free by the provisions of this act, as may be willing to emigrate, having first obtained the consent of the government of said country to their protection and settlement within the same, with all the rights and privileges of freemen.”
On January 12, 1865 the United States Secretary of War Edwin McMasters Stanton and United States Army General William Tecumseh Sherman met in Savannah, Georgia with a New Afrikan government council of twenty people representing the new class of free persons. In response to General Sherman’s Fourth request to “State in what manner you would rather live - whether scattered among the whites or in colonies by yourselves, the spokesperson for the black Government council, Garrison Frazier answered: “I would prefer to live by ourselves, for there is prejudice against us in the South that will take years to get over; but I do not know that I can answer for my brethren.” The record shows that Mr. Lynch said he thinks they should not be separated but live together. All the other persons present, being questioned one by one, answer that they agree with Brother Frazier. As a result of these negotiations, the closest thing that New Afrikans had to a plebiscite to determine their will and aspirations as free men, General Sherman issued Special Field Order Number 15. As noted by Imari Obadele,
"General Sherman issued his Special Field Order Number 15, dated 16 January 1865. This order set aside for the new class of free people “the islands from Charleston south, the abandoned rice fields along the rivers for 30 miles back from the seas and the country bordering St. Johns River, Florida.” The order further said “. . . in the possession of which land the military authorities will afford them protection until such time as they can protect themselves or until congress shall regulate their title.” Further, in accordance with the negotiating position of this Savannah-based Southeast Coast New African Government, General Sherman’s Order also provided that “on the islands and in the settlements hereafter to be established, no white persons whatever, unless military officers and soldiers detailed for duty, will be permitted to reside; and the sole and exclusive management of affairs will be left to the free people themselves, subject only to the United States military authority and the acts of Congress.” Forty-thousand members of the new class were settled under this order. Here, then, was the establishment of self-governing New African communities under the protection of the United States on land to which the Americans claimed ultimate title but to which the New Africans had been given possessory title by General Sherman, acting lawfully for the Congress and the President.
Similar centers of the New African nation under New African Governments were established in Mississippi. Captain John Eaton, named Superintendent of Negro Affairs by General Ulysses Grant in 1862, had, by July 1864, settled 72,500 members of the new class “in cities on plantations and in freedman’s villages,” almost all of whom, Superintendent Eaton reported, were ‘entirely self-supporting.’ Davis Bend, Mississippi was occupied by the Union Army in December 1864. Here a New African government was established with all the property under its control and with districts under New African sheriffs and judges and other officers. Again, as on the east Coast, the center of New African Government in Mississippi remained under the protection of the United States Army and ultimately subject to United States law, like many of the Indian nations. But also, like the East Coast centers of the New African nation, these communities were established on land that was in territorial status, and they were composed of persons who, like the residents of the Thirteen Colonies, possessed the inalienable right to liberty.
In his first message to Congress in December 1865, United States President Andrew Johnson conceded the right of the new class to general emigration, including necessarily the right to return home, to Africa. Said President Johnson: “While their right to voluntary migration and expatriation is not to be questioned, I would not advise their forced removal and colonization.”
Thus, by word and action, did the American government recognize the fledgling New African nation and the right of the new class, in exercise of its inherent liberty, to both repatriation and to independent Statehood.
After the assassination of President Abraham Lincoln, the American community - reacting to its own need for black labor and reacting to what it believed to be a difficult logistical problem in repatriation and reacting to a fear of increased political power for the Confederates - determined to limit the liberty of the new class of men, in the political arena, to the single option of the United States citizenship. The Fourteenth Amendment, passed by Congress in June 1866 and ratified by the States in July 1868, was, then, the consecration of a campaign of war and fraud by the American community against New Afrikans, that wrongfully and illegally prevented the new class from exercising the full range of political liberty that belonged to it. It imposed citizenship on New Afrikans without their consent. The perpetuation of this imposition is a violation of New Afrikan people’s human rights.
Full political rights include seceding from the United States and forming a new, independent New Afrikan nation on land within the current jurisdiction of the United States, as well as voluntary return to the various lands of our origin. Below are the relevant sections (with commentary) of the Durban Declaration supporting our claim and intervention at PFPAD.
World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance: Durban Declaration
“52. We note with concern that, among other factors, racism, racial discrimination, xenophobia and related intolerance contribute to forced displacement and the movement of people from their countries of origin as refugees and asylum-seekers;”
Commentary: On June 18, 1452 Pope Nicholas V issued the Dum Diversas Papal Bull (apostolic edict) announcing total war on people of African descent which inaugurated the trans Atlantic slave trade and the forced displacement of people of African descent from their countries of origin to the Americas and thenCaribbean.
“54. We underline the urgency of addressing the root causes of displacement and of finding durable solutions for refugees and displaced persons, in particular voluntary return in safety and dignity to the countries of origin, as well as resettlement in third countries and local integration, when and where appropriate and feasible;”
Commentary: Voluntary return to the various African countries from which we originated is an urgent matter requiring specific immigration and naturalization laws and programmes in each of the member states of the African Union. It should be noted that, United States v The Libelants and Claimants of the Schooner Amistad - 1841 makes clear that
“it is admitted that the African . . . owe no allegiance to (any Nations laws) their rights are to be determined by the law which is of universal obligation - the law of nature. . . a former domicile is not abandoned by residence in another if that residence be not voluntarily chosen. Those who are in exile, or in prison, as they are never presumed to have abandoned all hope of return, retain their former domicile. That these victims of fraud and piracy - husbands torn from their wives and families - children from their parents and kindred - neither intended to abandon the land or their nativity, nor had lost all hope of recovering it, sufficiently appears from the facts on this record.”
Never in the history of enslavement and after emancipation did the people ever give up hope of returning to their ancestral homelands. This desire was encoded in the slave songs from 1792 to 1861 and afterwards by the various documented repatriation movements that continue up to today in the current “Blaxit” and “Decade of Return” Initiatives.
“55. We affirm our commitment to respect and implement humanitarian obligations relating to the protection of refugees, asylum-seekers, returnees and internally displaced persons, and note in this regard the importance of international solidarity, burden-sharing and international cooperation to share responsibility for the protection of refugees, reaffirming that the 1951 Convention relating to the Status of Refugees and its 1967 Protocol remain the foundation of the international refugee regime and recognizing the importance of their full application by States parties;”
Commentary: the responsibility and burden of repatriation rests on international solidarity and cooperation.
“79. We firmly believe that the obstacles to overcoming racial discrimination and achieving racial equality mainly lie in the lack of political will, weak legislation and lack of implementation strategies and concrete action by States, as well as the prevalence of racist attitudes and negative stereotyping;”
Commentary: states are to blame for the absence of a large-scale, back to Africa movement and justice requires that states implement concrete actions supporting the right of return of people of African descent remaining in the land of their ancestors’ captivity and enslavement.
“80. We firmly believe that education, development and the faithful implementation of all international human rights norms and obligations, including enactment of laws and political, social and economic policies, are crucial to combat racism, racial discrimination, xenophobia and related intolerance;”
Commentary: African states must create distinct immigration status and policies for people of African descent who exercise their right of return to the land of their origin from which they were forcefully displaced and enslaved. The Durban Declaration declared slavery and the trans-Atlantic slave trade a “crime against humanity” that has no statute of limitation. We are not returning simply as foreigners, tourists, or business investors and thus such current naturalization laws, policies and programs are inadequate for our needs.
“81. We recognize that democracy, transparent, responsible, accountable and participatory governance responsive to the needs and aspirations of the people, and respect for human rights, fundamental freedoms and the rule of law are essential for the effective prevention and elimination of racism, racial discrimination, xenophobia and related intolerance. We reaffirm that any form of impunity for crimes motivated by racist and xenophobic attitudes plays a role in weakening the rule of law and democracy and tends to encourage the recurrence of such acts;”
Commentary: as of yet, none of the states or institutions that were involved in the trans-Atlantic slave trade crime against humanity have been punished or forced to pay reparations.
“86. We recall that the dissemination of all ideas based upon racial superiority or hatred shall be declared an offence punishable by law with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
Commentary: as of yet, none of the states or institutions that were involved in the trans Atlantic slave trade crime against humanity have been punished or forced to pay reparations. However, on August 30, 2022, the UN Committee on the Elimination of Racial Discrimination (CERD) released its review of U.S. compliance with the CERD treaty and, for the first time, called on the U.S. government to begin the process of providing reparations to descendants of enslaved people. No state has yet initiated a case at the International Court of Justice or other world court against the nations that held the Asiento contracts with the Catholic Church that gave those nations the exclusive monopoly rights to the trade under Catholic ecclesiastical law and European law which represents state-sanctioned crimes against humanity. What can PFPAD do to ensure that this happens?
“103. We recognize the consequences of past and contemporary forms of racism, racial discrimination, xenophobia and related intolerance as serious challenges to global peace and security, human dignity and the realization of human rights and fundamental freedoms of many people in the world, in particular Africans, people of African descent, people of Asian descent and indigenous peoples;”
Commentary: since economic, social, cultural civil and political rights are inseparable, indivisible, interdependent and required for full human dignity, and political rights include the right to self determination and control of one’s political destiny, and since this pursuit is both irresistible and irreversible, therefore a plebiscite for New Afrikan self determination is a fundamental feature for overcoming the past consequences of slavery and the current consequences of racism in the United States. Without the ability to establish our own state, we can not experience the full measure of dignity and realization of our human rights. This needs to be formally acknowledge and stated by the United Nations.
“104. We also strongly reaffirm as a pressing requirement of justice that victims of human rights violations resulting from racism, racial discrimination, xenophobia and related intolerance, especially in the light of their vulnerable situation socially, culturally and economically, should be assured of having access to justice, including legal assistance where appropriate, and effective and appropriate protection and remedies, including the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination, as enshrined in numerous international and regional human rights instruments, in particular the Universal Declaration of Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination;
Commentary: PFPAD should be instrumental in helping bring cases for reparations and plebiscites before the ICC/ICJ and other human rights institutions. Article 7 (1) of the Rome Statute defines the following intangible culture-related crimes against humanity: "Enslavement; Deportation or forcible transfer of population; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; The crime of apartheid."; Article 8 (2) defines the following intangible culture-related war crimes: "Committing outrages upon personal dignity, in particular humiliating and degrading treatment; . . . Unlawful deportation or transfer or unlawful confinement; The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside of this territory; Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand." UN Charter Article 96 states:
1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.
Programme of Action
II. Victims of racism, racial discrimination, xenophobia and related intolerance
“4. Urges States to facilitate the participation of people of African descent in all political, economic, social and cultural aspects of society and in the advancement and economic development of their countries, and to promote a greater knowledge of and respect for their heritage and culture;
6. Calls upon the United Nations, international financial and development institutions and other appropriate international mechanisms to develop capacity-building programmes intended for Africans and people of African descent in the Americas and around the world;
8. Urges financial and development institutions and the operational programmes and specialized agencies of the United Nations, in accordance with their regular budgets and the procedures of their governing bodies: (a) To assign particular priority, and allocate sufficient funding, within their areas of competence and budgets, to improving the situation of Africans and people of African descent, while devoting special attention to the needs of these populations in developing countries, inter alia through the preparation of specific programmes of action;”
Commentary: here is a demand for the PFPAD to work with the The Peacebuilding Support Office (PBSO) within the Department of Political and Peacebuilding Affairs (DPPA), and the Special Committee on Decolonization (C-24) to help the various Afro Descendant peoples throughout the Americas and the Caribbean, to develop the capacity to exercise their political rights through self determination plebiscites conducted in North, South and Central America and the Caribbean.. Article 21.1 of the Universal Declaration of Human Rights: “3. The will of the people shall be the basis of the authority of government;”
“11. Encourages States to identify factors which prevent equal access to, and the equitable presence of, people of African descent at all levels of the public sector, including the public service, and in particular the administration of justice, and to take appropriate measures to remove the obstacles identified and also to encourage the private sector to promote equal access to, and the equitable presence of, people of African descent at all levels within their organizations;
12. Calls upon States to take specific steps to ensure full and effective access to the justice system for all individuals, particularly those of African descent; “
Commentary: on August 18, 2016, the Report of the Working Group of Experts on People of African Descent of its mission to the United States of America, reiterated that
“THE UNITED STATES HAS NOT SIGNED AND RATIFIED ANY OF THE HUMAN RIGHTS TREATIES THAT WOULD ALLOW UNITED STATES CITIZENS TO PRESENT INDIVIDUAL COMPLAINTS TO THE UNITED NATIONS HUMAN RIGHTS TREATY BODIES OR TO THE INTER-AMERICAN COURT OF HUMAN RIGHTS.”
“13. Urges States, in accordance with international human rights standards and their respective domestic legal framework, to resolve problems of ownership of ancestral lands inhabited for generations by people of African descent and to promote the productive utilization of land and the comprehensive development of these communities, respecting their culture and their specific forms of decision-making; “
Commentary: The Inter American Commission for Human Rights (IACHR), pursuant to the principle of equality and non discrimination and following the decisions of the Inter-American Court of Human Rights (IACtHR), have asserted that “African Descent communities must enjoy the same territorial rights that have been granted to indigenous peoples, because the notion of territoriality not only addresses the element of ancestral tie but is also linked to the construct of culturally identifying with the territory and its natural resources. This also means that to African Descent communities the geographic surroundings are a space of recognition of the diaspora, which helps them preserve cultural traditions and conserve their historical legacy.”
Indigenous peoples
“19. Recommends that States examine, in conformity with relevant international human rights instruments, norms and standards, their Constitutions, laws, legal systems and policies in order to identify and eradicate racism, racial discrimination, xenophobia and related intolerance towards indigenous peoples and individuals, whether implicit, explicit or inherent;”
Commentary: It is noted that The Permanent Forum of People of African Descent (PFPAD) submitted a proposal that emphasizes the importance of incorporating the concept of peoples of African descent in order to recognize the collective. The legal recognition of peoples of African descent in the Americas is strongly rooted in the International Labour Organization Convention 169 (ILO Convention 169), the decisions of the Inter-American Court of Human Rights (IACtHR) on cases of Tribal communities that are of African descent, as well as in reports of the Inter-American Commission of Human Rights (IACHR).
The Convention on Indigenous and Tribal Peoples of the International Labour Organization 169 (ILO Convention 169) uses the concept “Indigenous and tribal peoples” as a “common denominator for a diversity of peoples that have their own cultures, languages, customs and institutions, which distinguish them from other parts of the societies in which they find themselves.” The term “Tribal Peoples” has been used in the Americas, to recognize persons of African descent because it is the category of international human rights law that has enabled recognition of rights to collective property, according to the provisions of the Convention on Indigenous and Tribal Peoples of the International Labour Organization (ILO) 169. Peoples of African descent have used the concept “tribal” of the ILO Convention 169 to achieve recognition of their histories, institutions, territories, practices and culture as collective subjects. The Inter-American Court of Human Rights has accepted the claim of a tribal identity for communities of African descent in multiple cases and has recognized collective rights for those communities, as well as a common history related to the transatlantic trade.
Ratification of and effective implementation of relevant international and regional legal instruments on human rights and non-discrimination
“77. Urges States that have not yet done so to consider becoming parties to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, as well as to consider acceding to the Optional Protocols to the International Covenant on Civil and Political Rights;”
Commentary: On August 18, 2016, the Report of the Working Group of Experts on People of African Descent of its mission to the United States of America, reiterated that, “the United States has not signed and ratified any of the human rights treaties that would allow United States citizens to present individual complaints to the United Nations Human Rights treaty bodies or to the Inter American Court of Human Rights. In September 1992, the United States ratified the International Covenant on Civil and Political Rights (ICCPR). The covenant protects the right to self-determination, the right to non-discrimination, the right to remedy, and the rights of minorities.
“78. Urges those States that have not yet done so to consider signing and ratifying or acceding to the following instruments:
(a) Convention on the Prevention and Punishment of the Crime of Genocide of 1948;
(l) The Rome Statute of the International Criminal Court of 1998;”
Commentary: the 1949 Geneva Convention Article 4 (1) defines prisoners of war and Article 5 states,
“the present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.”
The new Geneva Convention Protocol on Prisoners of War, which the United States has signed but not yet ratified and which went into force for some states on 7 December 1978, has provided in Articles 43 through 47 broader standards for prisoners of war, who come from irregular and guerilla units, than the terms of the 1949 Article 4. Article 45 of the 1978 Protocol states that a
“A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war… if he claims the status of war, or if he appears to be entitled to such status, or if the party on which he depends claims such status on his behalf.”
The African Diaspora, referred to as “Afrodescendents” has been determined by a competent tribunal -- the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in the city of Santiago, Chile in the year 2000 - and confirmed in 2002 at the United Nations Conference for the Rights of Minorities in La Ceiba, Honduras to refer to the African Diaspora that
Were forcibly disposed of their homeland, Africa;
Were transported to the Americas and Slavery Diaspora for the purpose of enslavement;
Were subjected to slavery;
Were subjected to forced mixed breeding and rape;
Have experienced, through force, the loss of mother tongue, culture, and religion;
Have experienced racial discrimination due to lost ties from their original identity.
Thus, the designation or status of “prisoner of war” under the Geneva Convention is valid for Afrodescendants since they have yet to be repatriated to their land of origin.
Prosecution of perpetrators of racist acts
“84. Urges States to adopt effective measures to combat criminal acts motivated by racism, racial discrimination, xenophobia and related intolerance, to take measures so that such motivations are considered an aggravating factor for the purposes of sentencing, to prevent these crimes from going unpunished and to ensure the rule of law;”
Commentary: starting with the first and defining act which was the Dum Diversas Papal Bull declaring total war against African people. In this respect, a PRESENTMENT TO THE HOLY SEE IN FURTHERANCE OF REPARATIONS was delivered at the Vatican on July 18, 2022.
“87. Urges States parties to adopt legislation implementing the obligations they have assumed to prosecute and punish persons who have committed or ordered to be committed grave breaches of the Geneva Conventions of 12 August 1949 and Additional Protocol I thereto and of other serious violations of the laws and customs of war, in particular in relation to the principle of non-discrimination;”
Commentary: on the 47th Anniversary of the Independence of Guinea Bissau, as President of the Balanta B’urassa History and Genealogy Society in America, I, notified United States Secretary of State Michael Pompeo that,
“the liberation and independence of the people of Guinea Bissau is not yet complete. The Balanta, Fulani, Mandinga, Papel, Manjaco, Beafada, Mancanha, Bijago, Felupe, Mansoaca, and others who were taken to the Americas - North, South and Central - as well as the Caribbean, are still living under foreign domination in the lands of their captivity and enslavement. . . . We invite the United States Government to do its part to complete the liberation and independence of Guinea Bissau by negotiating with us and the Government of Guinea Bissau, a peaceful Reparations and Repatriation treaty that would provide the justice due to the Balanta, Fulani, Mandinga, Papel, Manjaco, Beafada, Mancanha, Bijago, Felupe, and Mansoaca people in America who have yet to be returned to their independent homeland.”
We invite each African Union member state to also initiate negotiations with the Holy See (Catholic Church), and with the governments of the European powers that engaged in the trans-Atlantic slave trade as well as the government of the nations in North, South and Central America and the Caribbean.
Establishment and reinforcement of independent specialized national institutions and mediation
“90. Urges States, as appropriate, to establish, strengthen, review and reinforce the effectiveness of independent national human rights institutions, particularly on issues of racism, racial discrimination, xenophobia and related intolerance, in conformity with the Principles relating to the status of national institutions for the promotion and protection of human rights, annexed to General Assembly resolution 48/134 of 20 December 1993, and to provide them with adequate financial resources, competence and capacity for investigation, research, education and public awareness activities to combat these phenomena;”
Commentary: The REPORT OF THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS COMPILATION ON THE UNITED STATES OF AMERICA, recommended that the United States “establish a high-level inter-agency working group (United States Working Group on Human Rights) with a mandate to oversee and coordinate the implementation of the international human rights obligations of the United States domestically.”
Subsequently, the AFRO DESCENDANTS' RESPONSE TO PRESIDENT BIDEN'S EXECUTIVE ORDER ON ADVANCING RACIAL EQUITY AND SUPPORT FOR UNDERSERVED COMMUNITIES THROUGH THE FEDERAL GOVERNMENT made the following recommendations:
1. The proposed United States Working Group on Human Rights to submit to the Director of the Office of Management and Budget (OMB) a report within 200 days on legal reform to benefit the Afro Descendant Nation’s ability to exercise its human rights.
2. The report shall include a plan to assist the Afro Descendant Nation’s request to the UN Decolonization Committee to list us on the Decolonization List made in October 2018.
3. The report shall include a plan for conducting a UNITED NATIONS SPONSORED PLEBISCITE FOR SELF-DETERMINATION FOR DESCENDANTS OF PEOPLE WHO SURVIVED THE CRIMINAL AND GENOCIDAL MIDDLE PASSAGE TO THE COLONIES THAT BECAME THE UNITED STATES OF AMERICA.
2. Policies and practices
Data collection and disaggregation, research and study
“96. Invites States to promote and conduct studies and adopt an integral, objective and long-term approach to all phases and aspects of migration which will deal effectively with both its causes and manifestations. These studies and approaches should pay special attention to the root causes of migratory flows, such as lack of full enjoyment of human rights and fundamental freedoms, and the effects of economic globalization on migration trends;”
Commentary: there is a new “Blaxit” movement of people of African descent in the United States particularly that are migrating from America due to economic, social, and political pressures inflamed by random acts of violence, police murder and brutality, racism, and right-wing facism. This has coincided with efforts made to obtain citizenship in African countries. This represents a new African refugee and migration phenomenon that needs to be addressed.
“IV. Provision of effective remedies, recourse, redress, and other measures at the national, regional and international levels
158. Recognizes that these historical injustices have undeniably contributed to the poverty, underdevelopment, marginalization, social exclusion, economic disparities, instability and insecurity that affect many people in different parts of the world, in particular in developing countries. The Conference recognizes the need to develop programmes for the social and economic development of these societies and the Diaspora, within the framework of a new partnership based on the spirit of solidarity and mutual respect, in the following areas:
Facilitation of welcomed return and resettlement of the descendants of enslaved Africans;
160. Urges States to take all necessary measures to address, as a matter of urgency, the pressing requirement for justice for the victims of racism, racial discrimination, xenophobia and related intolerance and to ensure that victims have full access to information, support, effective protection and national, administrative and judicial remedies, including the right to seek just and adequate reparation or satisfaction for damage, as well as legal assistance, where required;
161. Urges States to facilitate for victims of racial discrimination, including victims of torture and ill-treatment, access to all appropriate legal procedures and free legal assistance in a manner adapted to their specific needs and vulnerability, including through legal representation;
162. Urges States to ensure the protection against victimization of complainants and witnesses of acts of racism, racial discrimination, xenophobia and related intolerance, and to consider measures such as, where appropriate, making legal assistance, including legal aid, available to complainants seeking a legal remedy and, if possible, affording the possibility for non-governmental organizations to support complainants of racism, with their consent, in legal procedures;”
Commentary: at the the 31st Session of the Working Group of Experts on People of African Descent, December 1, 2022 I made a presentation that requested WGEPAD and PFPAD provide advice and assistance in requesting the International Court of Justice to issue a special advisory opinion on our status under the Geneva Convention as well as a special advisory opinion on our collective political rights that were recognized by the Lincoln Administration in 1865 i.e. the right to statehood, the right to repatriation/rematriation, and the right to integration into American society but denied after President Lincoln’s assassination.
National legislation and programmes
Remedies, reparations, compensation
“166. Urges States to adopt the necessary measures, as provided by national law, to ensure the right of victims to seek just and adequate reparation and satisfaction to redress acts of racism, racial discrimination, xenophobia and related intolerance, and to design effective measures to prevent the repetition of such acts;”
Commentary: On June 18th, 2009, the 1st Session of the 111th Congress, of which President Joe Biden was a member as a Senator for the state of Delaware, passed S. CON. RES. 26 acknowledging
“the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow laws;” and “apologizes to African-Americans on behalf of the people of the United States, for the wrongs committed against them and their ancestors who suffered under slavery and Jim Crow laws”.
Unfortunately, the same Congressional Resolution demonstrated the hypocrisy of the United States Government on issues of race and equality when it added the following disclaimer to the resolution
“NOTHING IN THIS RESOLUTION— (A) AUTHORIZES OR SUPPORTS ANY CLAIM AGAINST THE UNITED STATES; OR (B) SERVES AS A SETTLEMENT OF ANY CLAIM AGAINST THE UNITED STATES.”
The 1st Amendment of the Constitution of United States of America 1789 (rev. 1992) states very clearly,
“CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS; OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES.”
The S. CON. RES. 26 Disclaimer effectively prevents members of the Afrodescendant Nation from exercising their 1st Amendment Right to petition the government for redress of grievances from the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow laws in the United States. This must be challenged and condemned as a human rights violation.
V. Strategies to achieve full and effective equality, including international cooperation and enhancement of the United Nations and other international mechanisms in combating racism, racial discrimination, xenophobia and related intolerance and follow-up
“168. Urges States that have not yet done so to consider acceding to the Geneva Conventions of 12 August 1949 and their two Additional Protocols of 1977, as well as to other treaties of international humanitarian law, and to enact, with the highest priority, appropriate legislation, taking the measures required to give full effect to their obligations under international humanitarian law, in particular in relation to the rules prohibiting discrimination;
172. Urges States to protect the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and to develop appropriate legislative and other measures to encourage conditions for the promotion of that identity, in order to protect them from any form of racism, racial discrimination, xenophobia and related intolerance. In this context, forms of multiple discrimination should be fully taken into account;”
173. Further urges States to ensure the equal protection and promotion of the identities of the historically disadvantaged communities in those unique circumstances where this may be appropriate; “
Commentary: with the advent of the maternal and paternal African Ancestry dna test, it is now possible to identify the ancestral lineages of people who suffered ethnocide as a resulted of the trans-Atlantic slave trade. Consequently, recovery from ethnocide is now possible and it is the states’ obligations to provide all the programs necessary to restore the ancestral lineages, identities, languages, cultures and territories of the various African ethnicities that would constitute national ethnic minorities. For example, the descendants of the Balanta people in the United States, Colombia, etc.; the Temne and Mende descendants in Jamaica, the United States, Barbados, etc. This would include establishing self-governing, autonomous ethnic territories within national jurisdictions. For example, in the United States, there are 566 federally recognized American Indian and Alaskan Native Tribes and 326 Indian land areas in the U.S. administered as federal Indian reservations. Approximately 750,000 people have taken the African Ancestry dna test. The test also identifies the ancestry of family members of the test takers, so that between 5 and 10 million people in the United States could identify their maternal and/or paternal African Ancestry. Land areas need to be set aside where school systems could teach and conduct classes in the ancestral languages and where specific programs aimed at the specific cultural repair could be implemented.
Regional/international cooperation
“191. (a) Calls upon States to elaborate action plans in consultation with national human rights institutions, other institutions created by law to combat racism, and civil society and to provide the United Nations High Commissioner for Human Rights with such action plans and other relevant materials on the measures undertaken in order to implement provisions of the present Declaration and the Programme of Action.”
CONCLUSION
A valid and legitimate question is: What is our status under international law? Are we citizens of the United States by virtue of the imposition of the 14th Amendment, are we national minorities, are we prisoners of war, are we stateless, are we indigenous tribal people? What, exactly, are we? The immediate follow-up question is, How was/is this status determined? An honest assessment of the second question will show that any such status was obtained without the informed consent of our people and thus, invalidates the answer to the first question and finally provokes the recognition that our people themselves must determine their status through the exercise of free choice. This is the rational basis for the plebiscite. PFPAD can request that the ICJ make an advisory judgment on our status.
“The essential strategy of our struggle for land is to array enough power ( as in jiu-jitsu, with a concentration of karate strength at key moments) to force the greatest power, the United States, to abide by international law, to recognize and accept our claims to independence and land.”
- Imari Obadele, Provisional Government of the Republic of New Afrika
List of National Independence: 1945-1960
August 15, 1945: North Korea
August 15, 1945: South Korea
August 17, 1945: Indonesia
September 2, 1945: Vietnam
April 17, 1946: Syria
May 25, 1946: Jordan
August 14, 1947: Pakistan
August 15, 1947: India
January 4, 1948: Burma
February 4, 1948: Sri Lanka
May 14, 1948: Israel
July 19, 1949: Laos
August 8, 1949: Bhutan
December 24, 1951: Libya
November 9, 1953: Cambodia
January 1, 1956: Sudan
March 2, 1956: Morocco
March 20, 1956: Tunisia
March 6, 1957: Ghana
August 31, 1957: Malaysia
October 2, 1958: Guinea
January 1, 1960: Cameroon
April 4, 1960: Senegal
May 27, 1960: Togo
June 30, 1960: Republic of the Congo
July 1, 1960: Somalia
July 26, 1960: Madagascar
August 1, 1960: Benin
August 3, 1960: Niger
August 5, 1960: Burkina Faso
August 7, 1960: Côte d'Ivoire
August 11, 1960: Chad
August 13, 1960: Central African Republic
August 15, 1960: Democratic Republic of the Congo
August 16, 1960: Cyprus
August 17, 1960: Gabon
September 22, 1960: Mali
October 1, 1960: Nigeria
November 28, 1960: Mauritania