by Pisimisi Kelly,

Introduction

“The past is not dead.

It is not even past.”

William Faulkner – Requiem for a Nun

 

While other countries (such as the United Kingdom, France, and the Netherlands) had a considerably rich colonial history (or even tradition?!), Germany (along with some other European powers, such as Italy, Spain, Portugal, and Belgium) was always falling short, mainly due to its quite recent unification (just in January 1st, 1871, when the south-western german states adhered to the North German Confederation under the reign of Emperor Wilhelm I, King of Prussia, and Otto von Bismarck as the new Chancellor), which belated the adoption of a uniform foreign policy, and, thus, its under-developed means could not help to implement a solid imperialistic policy and to claim part of the -so-called- Scramble for Africa.

Gradually, in the late 19th century, when the notion of a shared nation was slowly establishing, the politicians and the public opinion concluded in that Africa and the Pacific areas -if colonized- would make the dreams of german expansion come true.

However, Bismarck’s policy in respect (together with the majority of the Reichstag) was quite obscure and uncertain. Only in the beginning of the 1880s, he acceded to such colonial ambitions, in order to safeguard the trade market, to facilitate the access to raw materials, as well as to widen the exporting market of his Empire. Those colonial efforts, originated by private initiatives, expanded to various African regions (e.g. German East and South-West Africa, Cameroon and Togo among others).

More specifically, it was only on November 16th, 1882, when things changed. Adolf Lüderitz, a merchant from Bremen, asked Chancellor Bismarck for protection, while he was trading in South West Africa. Once this protection was granted, he bought land from a native chief and established a homonymous city. Steadily he managed to set the region under the rule of the German Empire (the german flag being raised on August 7th, 1884), while the British authorities accepted the situation, which was further crystallized in the 1884-1885 Berlin (or Congo) Conference. All Lüderitz’s property rights (especially after his death) were bought by the newly founded German Colonial Society for Southwest Africa, thus implementing Bismarck’s policy of using private money in order to develop the colonies.

In 1886, a law was finally passed creating a special amalgam of European and native laws, in order to govern the colony. Meanwhile, the relations between the German colonists and the indigenous populations were quite turbulent. The situation was further triggered due to the British presence in the region. In fact, the neighboring Walvis Bay was a British enclave within the south-western African region, where various persons moved into. This worried the German Empire, which sent protectorate troops in the field.

In 1890, the region was officially declared part of the German Empire and on the basis of the Heligoland-Zanzibar Treaty, signed among the German Empire and the United Kingdom, the colony was internationally recognized and practically grew in size (Dreschel, 1980).

1904-1908 Herero and Namaqua Uprising and their international status

At the dawn of the 20th century, Germany launches an unprecedented series of atrocities against indigenous peoples in the wider region of South West Africa (today’s Namibia), in response to their uprising on January 12th, 1904, to their total surprise (Dreschel, 1980).  At the forefront of the German response, there was the then colonial commander and governor, Theodor Leutwein, who -taking into consideration that the Herero rebels were well armed and their numerical predominance- proposed to negotiate a peaceful settlement. However, his proposal was not accepted by the basis back in Berlin. They opted for an exclusively military solution, which led to a retreat of the german colonial troops and resulted in the replacement of the commander (Dreschel, 1980; Encyclopaedia Britannica, here).

Leutwein was later on replaced by Lothar von Trotha, a colonial veteran with a great experience. Until his arrival on the field, on June 11th, 1904, there was no significant battle. The Hereros were gathered in the Waterberg plateau in an effort to recover any losses caused by the hostilities, patiently waiting for a peaceful negotiating process and settlement of their dispute. However, von Trotha opted for encircling them, risking the failure of the whole operation; the Germans were moving on -literally- unchartered territory (their maps were incomplete) and they had the additional burden of their modern weaponry. Finally, on August 11th, 1904, von Trotha orders all his troops to attack the approximately 40,000 Hereros gathered in the region (among whom only 5,000 were armed) taking them by surprise. His risky strategy worked and the Hereros were defeated.

But von Trotha kept pursuing the Hereros for a long time after that victory. When he could not reach them in the Kalahari desert, he leveled up his strategy by announcing on October 3rd, 1904, his so-called “extermination order” (Vernichtungsbefehl). Shortly after this strategy was replaced by a new one, following the British example in the South-African War; they created concentration camps [the so-called Konzentrationslager are characterized by some academics as the predecessor of the Nazism (Silvester & Gewald, 1999)] (Encyclopaedia Britannica, here). Innumerable persons (men, women, and children as well) did not escape the colonial impetus of Germany (Sarkin, 2009). Wells were sealed and poisoned in order to prevent any access to potable water to the population. Many persons were used as slaves in the German (whether state or private) machinery, while quite a few of them were enclosed in concentration camps with a significantly high rate of mortality. Forced labor was a quite common practice used under such conditions (in fact, it was later acknowledged even by well-known enterprises and businesses, such as the Otavi Minem AG). Women were mostly used as sex slaves and “comfort women” in the military, while the whole Herrero community served as a guinea pig in order for German scientists and geneticists to perform experiments and to prove the supremacy of their species.

The same destiny was also reserved to the Namaqua population as well, who “dared to” follow the Herero example and run, in October 1904, their own uprising against the German colonial rule.

The primary background of such cruelties, in reality, remains merely economic; the systematic expropriation of the Herero resources and their subsequent status of rightlessness triggered their uprising against the german ruling (Dreschel, 1980).

A genocide still in oblivion…

Namibia’s past contains a large list of serious and shocking paradigms of human rights abuses, mainly caused by the aforementioned German colonialism. Such a legacy has not yet ceased to haunt Namibia in so many ways, yet the country (or the countries involved) has (or have) chosen not to deal with the past directly, supposedly for the sake of any reconciliation process in force.

Although no one assumed responsibility for the atrocities committed against the Hereros and the Namaquas, quite belated, just in 1985, the then UN Special Rapporteur on the question of the prevention and punishment of the crime of genocide, Mr. B. Whitaker (as appointed by the respective Sub-Commission of the UN Commission on Human Rights, pursuant to the ECOSOC Resolution 1983/33) conducted a report on that question. The Whitaker Report is the only official international document according to which the aberrations of the German Empire in the land of the Hereros (along to the atrocities of the Ottomans against the Armenians during the period 1915-1916) amounts to genocide, even though there was no existing legal framework at that time (the Whitaker Report, p.9, para 24, no 11).

From its part, Germany, for almost 100 years, had not recognized those horrific incidents of the 1904-1908 period as genocide. German foreign policy was based for quite a long time on the argument that historic events prior to 1948 and the adoption and entry into force of the relevant UN Convention on the Prevention and Punishment of the Crime of Genocide could not -by any means- be characterized as genocidal acts (Bargueño, 2012; Pelz, 2016; the opposite argument in Cooper, 2006). Things changed a few years ago, in 2015, when German officials started ascertaining that those incidents “would now be called genocide”, but under a merely historical and political view with respect. However, an official apology by Germany still lacks.

Namibia and Germany commenced their diplomatic dialogues in order to address any pending issues. In fact, although a first rapprochement took place in 2004, when the then Federal Minister for Economic Cooperation and Development, Heidemarie Wieczorek-Zeul, gave a speech in Namibia, referring among others that the principal goal was to alleviate the consequences that the ethnic groups affected still confront, as well as to improve their living conditions, a more ambitious inter-governmental dialogue began in 2014. Such an effort resulted in Germany handling back to Namibia approximately 27 human remains, that were transferred in Germany during the colonial period. Representatives of the Namaqua and Herero groups were also present to the said ceremony (See Federal Foreign Office in respect; Bargueño, 2012).

However, during those conversations and negotiations, there was any reference to eventual individual compensations for the members of the affected ethnic groups. This historical demand of the Herero and Namaqua populations was initially brought before the American courts on September 9th, 2001 (Cooper, 2006). Although the terrorist attacks that occurred a few days later deviated the international interest, the applicants never stopped struggling to correct that historical injustice (Bargueño, 2012).

In fact, in 2017, various persons belonging in these two communities filed a complaint in a New York Court, demanding compensations for the genocide and the unlawful seizure of their property, as well as the recognition of their absence from the relevant negotiations as a breach of international law.

At this point, one should examine in a more detailed way whether Germany actually enjoys state immunity. In international law, on the basis of their sovereign equality, States benefit from jurisdictional immunities and, therefore, they cannot be brought before other States’ Courts, unless for acts or omissions that fall under their sovereign power (acta iure imperii) (ICJ, Jurisdictional Immunities of the State, Germany v. Italy, Greece intervening, para 60). Regarding the present case, one could notice that in principle both claims fall under the acta iure imperii category. This argument could be overruled only in the cases, where the German colonial powers stripped private persons of their properties in seemingly lawful -yet completely unfair- contracts (Dören & Wentker, 2018).

The lawsuit was finally dismissed in 2019, with the reasoning that Germany maintains its state immunity and, therefore, the Court’s jurisdiction could not be established (Stempel, 2019). Such an ending was almost foreseeable, because even in the case of waiving the State’s jurisdictional immunity under the conditions specifically described in the United Nations Convention on Jurisdictional Immunities of States and Their Property (which at this point reflects customary international rules), with a verbal note Germany cleared things out, highlighting that it would exercise its right under international law.

This was not the only lawsuit filed against Germany. In 2017, Herero and Namaqua organizations brought another lawsuit before a US Court under the Alien Tort Statute. In that case, it is most likely probable that the US Supreme Court will align itself with its former jurisprudence, claiming that the said Statute cannot be applied in cases that do not “touch and concern” USA (Kiobel v. Royal Dutch Petroleum), hence dismissing such a petition (Bargueño, 2012; Ochab, 2018).

Books

[1.] Dreschel, H. (1980). Let us die fighting : the struggle of the Herero and Nama against German imperialism (1884-1915). London: Zed Press.

[2.] Marriott, E. (2012). Παγκόσμια Ιστορία. Εκδόσεις Οκτώ.

[3.] Sarkin, J. (2009). Colonial Genocide and Reparations Claims in the 21st Century. The Socio-Legal Context of Claims under International Law by the Herero against Germany for Genocide in Namibia, 1904–1908. Greenwood Publishing Group.

[4.] Silvester, J. & Gewald, J.-B. (1999). A Socio-Political History of the Herero of Namibia: 1890-1923. Ohio University Press.

Articles

[1.] Bargueño. D. (2012). «Cash for Genocide? The Politics of Memory in the Herero Case for Reparations». Holocaust and Genocide Studies 26, no. 3 (Winter 2012): 394-424. DOI 10.1093/hgs/dcs053.

[2.] Burke, J. & Olterman, P. (2016). «Germany moves to atone for “forgotten genocide” in Namibia». The Guardian. Accessed on 16 February 2020. Available here.

[3.] Cooper, A. (2006). «Reparations for the Herero Genocide: Defining the Limits of International Litigation». African Affairs, 106/422, 113–126. DOI 10.1093/afraf/adl005.

[4.] Dören, R. & Wentker, A. (2018). «Jurisdictional Immunities in the New York Southern District Court? The case of Rukoro. et al. v. Federal Republic of Germany.» EJIL: Talk!. Accessed on 16 February 2020. Available here.

[5.] Erichsen, C. (2020). «German-Herero Conflict of 1904-1907». Encyclopedia Britannica. Accessed on 16 February 2020. Available here.

[6.] Ochab, E. (2018). «The Herero-Nama Genocide: The Story Of A Recognized Crime, Apologies Issued And Silence Ever Since». Forbes. Accessed on 16 February 2020. Available here.

[7.] Pelz, D. (2016). «Debate about colonial-era mass killings in Namibia rages again in Berlin». Accessed on 16 February 2020. Available here.

[8.] Stempel. J. (2019). «Lawsuit against Germany over Namibian genocide is dismissed in New York». Reuters. Accessed on 16 February 2020. Available here.

Other links

[1.] Federal Foreign Office, Addressing Germany and Namibia’s past and looking to the future. Accessed on 16 February 2020. Available here.

International Conventions

[1.] United Nations General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277. Available here.

Reports

[1.]. Whitaker Report on Genocide (1985) on Prevent Genocide International. Accessed on 16 February 2020. Available here.

Jurisprudence

[1.] International Court of Justice, Jurisdictional Immunities of the State, Germany v. Italy, Greece intervening, Judgement, 3 February 2012. Available here.

[2.] Rukoro et al. v. Federal Republic of Germany, No. 1:2017cv00062 – Document 64 (S.D.N.Y.), 6 March 2019. Available here.