Ovaherero and Nama representatives, as well as UN Special Rapporteurs accuse Berlin of refusing reparations for the genocide in South West Africa, invoking colonial-racist arguments.
Ovaherero and Nama representatives, as well as several UN Special Rapporteurs accuse the German government of violating UN conventions and using colonial-racist arguments. The accusations were sparked by a Joint Declaration Germany and Namibia had agreed on in May 2021, which stipulates that instead of paying reparations for the genocide of the Ovaherero and Nama, Berlin would only pay the habitual amount of development aid. Due to unexpectedly fierce protests, the Declaration has not yet been ratified by Namibia’s parliament. Meanwhile, legitimate representatives of the Ovaherero and Nama have filed a lawsuit against it in Namibia’s High Court. In addition, seven Special Rapporteurs appointed by the UN Human Rights Council, have recently lodged a complaint in Berlin. The German government must finally negotiate with the organizations of the victims’ descendants and renounce its legal standpoint claiming that the mass murder of the Ovaherero and Nama could not legally be classified as genocide, because the victims were not considered “civilized.” Berlin, priding itself of a “value-based” foreign policy, remains silent.
Biding Time and Cheating
The dispute over recognition of the German genocide on the Ovaherero and Nama and on the payment of reparations has already been in progress since the 1990s. The victims’ descendants initially placed their hopes in persuasion and negotiations with the Federal Republic of Germany, the legal successor of the perpetrator state. For years the German government has fended off their demands using a mixture of obstinately biding its time and of cheating. In 2004, seeking to take the wind out of the sails of protests in Namibia, Germany’s Minister for Development at the time, Heidemarie Wieczorek-Zeul (SPD) asked forgiveness “in the spirit of the ‘Lord’s Prayer’ that we share.” Religious statements are not suited to entail legal consequences, such as the obligation to pay reparations.[1] Attempts by the Ovaherero and Nama to obtain reparations before a US court have failed. In March 2019, the court recognized Germany’s “sovereign immunity.”[2] Previously, in 2015, hoping to rid itself of what it considered a bothersome issue, the German government had initiated negotiations with Namibia, which, in May 2021, led to the signing of a Joint Declaration. This was immediately met with fierce protest (german-foreign-policy.com reported [3]) – and for good reason.
Berlin Dodges
On the one hand, Berlin had only negotiated with Namibia’s government, and excluded the legitimate representatives of the victims’ descendants from the negotiations, the Ovaherero Traditional Authority (OTA), as well as the Nama Traditional Leaders Association (NTLA). Both were therefore not willing to endorse the agreement reached without their participation. Moreover, in the document, the German government recognizes the genocide, as such, only “from today’s perspective,” but not historically or legally. According to Berlin’s official legal standpoint, the 1948 Genocide Convention should not be applied retroactively. The Ovaherero and Nama cannot invoke the Geneva Convention of 1864 or the Hague Land Warfare Convention of 1899, since their ancestors were not among the contracting states. In any case, according to the “predominant opinion” at the time, both conventions applied only to “civilized” populations and not to the African inhabitants of German colonies.[4] Because, in legal terms, there was no genocide, reparations cannot be paid, concluded the German government and declared its willingness to simply pay development aid – with a total value of 1.1 billion euros, apportioned over 30 years.
Lawsuit Against the Waiver Declaration
The Joint Declaration, which has not yet been passed due to the unexpectedly massive protests, is now under a two-prong attack. On the one hand, Namibian lawyer Patrick Kauta has filed a lawsuit against it in Namibia’s High Court – on behalf of the OTA, several Nama Traditional Authorities as well as the parliamentarian and landless activist Bernardus Swartbooi. The lawsuit is formally targeting Namibia’s government and Parliament. Among other things, it ties in with the fact that Article 20 of the Declaration stipulates a waiver of every subsequent demand beyond the 1.1 billion in development aid. According to Kauta, such a commitment is only permissible with prior parliamentary involvement and approval. However, this was not done. Above all, the plaintiffs criticize the fact that colonial-racist justifications are used to deny reparations: Reference to colonial era legal opinion, alleging that the Herero and Nama, at the time, were not considered among the “civilized” peoples, replicates colonial-racism and should not be allowed to prevail. The jurist, Karina Theurer, who teaches at the Humboldt University in Berlin and advises Kauta, points out that in this lawsuit, for the first time, the racism inscribed in international law could be unraveled before a court of a former colony.[5]
The UN vs. Berlin
On the other hand, seven UN Special Rapporteurs are raising strong criticism of the Joint Declaration. The Special Rapporteurs, who have been designated by the UN Human Rights Council,[6] had addressed a written request to the German and Namibian governments for responses to their objections. Windhoek has not responded at all. Berlin has declared it was unable to meet the April 12 deadline for an answer, stating its intention of responding to the objections by May 8. So far, no further reaction from the German government is known. On the one hand, the UN Special Rapporteurs are criticizing the fact that the negotiations between Berlin and Windhoek had excluded the legitimate representatives of the victims’ descendants. This is in contradiction to the UN Declaration on the Rights of Indigenous Peoples. That Declaration was ratified by the German Bundestag on April 15, 2021.[7] Furthermore, the UN Special Rapporteurs endorse the criticism of the colonialist-racist argumentation. Ultimately, they call on the German government to finally assume legal responsibility for crimes committed under German colonial rule and to pay regular reparations. The Joint Declaration’s limitation solely to payment of development aid will not fulfill this responsibility.[8]
The Foundations of Western Prosperity
In spite of the protests and complaints, the German government is not ready to give in. In August, it had reiterated that it is sticking to the Joint Declaration. Until now, it has not responded to the Namibian government’s wish for an amendment to the Declaration, in order to take the wind out of the sails of the protesters. It is conceivable that Windhoek will feel compelled to give in. That poorly funded country can hardly refuse the development finances promised in the Joint Declaration. If this happens, the German government, which officially boasts of its “values-based” foreign policy and presents itself as the defender of the “rules-based order” would not only be in violation of a UN declaration and base its excuse for refusing to pay reparations on a blatant colonial-racist argumentation. It would also be forcing the government of Namibia to accept all of this. For Berlin, of course, there is much at stake. For example, at the turn of the 19th – 20th century, German soldiers had carried out a string of military campaigns of a genocidal nature, outside of Namibia as well – for example, in, what is today, Tanzania,[9] and in China.[10] Furthermore, the mass crimes of other colonial powers could also end up in court. That would place the foundations of Western prosperity on the agenda – even in a legal sense.
[1] Wieczorek-Zeul bittet um Vergebung. tagesschau.de 14.08.2004.
[2] Felicia Jaspert: Setback for the descendants of the Nama and Ovaherero indigenous peoples. voelkerrechtsblog.org 08.05.2019.
[3] See also Hush Money Instead of Compensation (II).
[4] Deutscher Bundestag, Wissenschaftliche Dienste: Der Aufstand der Volksgruppen der Herero und Nama in Deutsch-Südwestafrika (1904-1908). Völkerrechtliche Implikationen und haftungsrechtliche Konsequenzen. WE 2-3000-112/16. Berlin 2016.
[5] Karina Theurer: Litigating Reparations. Will Namibia Be Setting Standards? voelkerrechtsblog.org 25.01.2023.
[6] Kritik an Namibia-Abkommen. Frankfurter Allgemeine Zeitung 27.04.2023.
[7] Bundestag ratifiziert Konvention zu Rechten indigener Völker. bundestag.de 15.04.2021.
[8] Karina Theurer: Germany Has to Grant Reparations for Colonial Crimes. voelkerrechtsblog.org 02.05.2023.
[9] See also Auf dem Weg zum Vernichtungskrieg (I), Auf dem Weg zum Vernichtungskrieg (II) and Milestones of German Memory.
[10] See also Germany’s Pacific Past (I).
