Published: 23 September 2017 Author: Stefan Talmon
In 1904, the Herero and Nama tribes revolted against German colonial rule in the territory of today’s Namibia. The revolt was brutally crushed by imperial German troops. It is estimated that, between 1904 and 1908, some 65,000 Herero (80 percent of the tribe’s population) and some 10,000 Nama (50 percent of the tribe’s population) were killed, starved to death or died in camps. The events have been referred to as “the first genocide of the 20th century”.
While Germany acknowledged its “moral and historical responsibility to Namibia”, it has tried to avoid referring to the events as “genocide”. The German government has been fulfilling this responsibility through particularly close development cooperation. Thus, the amount of development aid received by Namibia from Germany has been the highest per capita in Africa.
On 29 June 2017, the German federal parliament, with the votes of the governing parties, rejected a motion which read, inter alia:
“I. The German federal parliament determines:
1. The German federal parliament recognizes the heavy burden of guilt incurred by German colonial troops by their crimes against the Herero, Nama, Damara and San, and emphasizes, as long shown by historians, that the war of extermination in Namibia from 1904-1908 was a war crime and genocide.”
In the statement of reasons attached to the motion it said:
“The murders of the German groups [sic] meet today’s criteria for genocide, as defined in the United Nations Convention of 1948 on the prevention and punishment of the crime of genocide and, for that reason, must be recognized by the German government as such.”
The vote brought to an end, at least for the time being, a process that started on 1 July 2015 when the motion was first introduced to parliament. The motion to recognize the events in Namibia as “genocide” followed on the heels of the federal parliament remembering the expulsion and massacres of the Armenians in the Ottoman Empire in 1915/1916. During the debate on 24 April 2015 many speakers referred to the events in the Ottoman Empire as “genocide”. In an opinion piece in the weekly Die Zeit, the speaker of the federal parliament, Norbert Lammert, wrote in July 2015 that “there is a startling contrast between the lack of commemorating one’s own colonial past in this country, and the passionate debate in April on the occasion of the centenary of genocide against the Armenians in the Ottoman Empire.” He continued:
“According to present day international law the conditions of the crime of genocide are fulfilled if there is intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Judged by these standards, the suppression of the Herero uprising was genocide. This is the view of many, including German historians.
Irrespective of the question of whether the UN Genocide Convention is applicable in this case, the federal parliament and the government have repeatedly emphasised the historical and moral responsibility of Germany.”
Against the background of the parliamentary motion the spokesperson for the Federal Foreign Office was asked on 10 July 2015 to clarify the government’s position on the massacres of the Herero and Nama. In a lengthy answer, the spokesperson said:
“First of all, the basis of all our conduct and political action is the guiding principle that, against the backdrop of the cruel colonial war of the German Reich in South West Africa, the federal government expressly admits the special historical responsibility of Germany to Namibia and its citizens and, especially, the Herero, Nama, San and Damara.”
Referring to the political dialogue with the government of Namibia with a view to finding a joint approach to the painful colonial past the spokesperson said:
“It is about shaping the future together, without ignoring the past. This does not mean, of course, that a historical and political classification of events over a little more than 110 years ago would not be of great importance as a basis for our future-oriented dialogue. […]
These talks do not take place in a vacuum. They are, of course, conducted in full knowledge and on the basis of a long-running political and historical debate of the terrible events of the past. As early as 2004, the former Federal Minister for Economic Cooperation and Development, Ms. Heidemarie Wieczorek-Zeul, said during a visit to Windhoek on behalf of the federal government:
‘We Germans accept our historical-political and moral-ethical responsibility and the guilt incurred by Germans at that time. The atrocities committed at that time would today be called genocide.’
[…] Ever since, this has been the political guiding principle […].”
While the federal government accepted historic guilt and responsibility for the events in Namibia in 1904-1908, it was very careful not to admit to genocide in the legal sense. The government distinguished between the use of the term “genocide” in a historical or political context and its use as a legal term of art. The position was set out in various replies to parliamentary question which read as follows:
“The term ‘genocide’ is used by different scientific disciplines to some extent with different meanings depending on the event and context. If the term is used as a term of international law, i.e. if its legal implications are addressed, the Federal Government has repeatedly stated its view that the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide cannot be applied retroactively. The Federal Government does not assess historical events on the basis of international law provisions which were not in force for the Federal Republic of Germany or any other State at the time when these events were taking place.”
“A purely legal assessment and classification must be based on the rules of international law valid at the time. The events of that time [1904-1908] are not subject to the rules of international humanitarian law, human rights law or international criminal law which are valid today and are constantly advanced, including the rules on crime against humanity and war crimes.”
The federal government took the view that the fact that the Convention on the Prevention and Punishment of the Crime of Genocide cannot be applied to the events in Namibia does not preclude the use of the term “genocide” with regard to these events. In reply to a parliamentary question it stated:
“In its legally non-binding preamble, the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 points to the historical dimension of the term of genocide by stating that ‘at all periods of history genocide has inflicted great losses on humanity’. For this reason, in a historical-political public debate, the definition of the Genocide Convention can serve as a standard for a non-legal assessment of a historical event as genocide.”
According to the government, the use of the term genocide in a historical or political context did not entail any legal consequences. In particular, such use did not provide any legal basis for reparation claims. Conversely, it seems that the government was of the opinion that the use of the term genocide in a legal sense could give rise to reparation claims.
The use of the term genocide also impacted the negotiations between Germany and Namibia on the details of an apology by Germany for the crimes committed during 1904-1908. In November 2015, the governments of the two States had started a formal dialogue with the aim “to reach a common assessment of the past and, on that basis, to identify ways of developing strategies to shape our continued bilateral relations.” Namibia’s aim in the negotiations was that Germany officially acknowledge that a genocide took place, issue an apology for the genocide and pay reparations or damages. While Germany was ready to acknowledge the genocide and tender an apology, it rejected any legal responsibility for the events in 1904-1908. The German government was ready for a very substantial commitment beyond and in addition to the current development aid to Namibia, but ruled out the payment of reparations.
The parties’ different objectives crystallized in the use of the term “genocide”. While Namibia wanted to employ the term in the legal sense entailing international responsibility and giving rise to an obligation by the responsible State to make full reparation, Germany wanted to use the term only in a historical political sense. The German ambassador to Namibia stated that the German government’s focus was on the way in which the term “genocide” was used. In April 2017, it was reported that the German government insisted that in a final document the terms “genocide” and “reparations” would not be used – at least not in their legal meaning. The German government’s special envoy for the dialogue with Namibia, Ruprecht Polenz, was quoted as saying:
“From the German government’s point of view, the question of how to deal with the crimes that were committed between 1904 and 1908 is a political and moral question, but not a legal one. That’s not less significant, that is simply something different. We are negotiating with the Namibian government about the political and moral consequences.”
“The expectations of the negotiations were fraught with such perspectives [of reparation payments] from the start. The fact is that after World War II, Germany only paid personal reparations to individuals who personally suffered in the concentration camps or were forced to do slave labour.”
The difference of opinion on the use of the term “genocide” between the parties meant that the negotiations could not be concluded as planned in time for the 18th federal parliament to adopt a resolution offering an apology for the events of 1904-1908 before the expiry of the parliamentary term in September 2017. On 21 September 2017, the Namibian Prime Minister Saara Kuugongelwa-Amadhila stated in the National Assembly:
“As I stand here, Germany has not formally accepted responsibility for the genocide and has not yet tendered an unconditional apology. This is the stage where we are at the moment.”
In light of these developments, the Namibian government was incensed by the Report of the UN Human Rights Council’s Working Group of Experts on People of African Descent on its mission to Germany, which noted “that the Government of Germany has apologized for the genocide of the Ovaherero and Nama peoples and is conducting targeted development projects in Namibia”. In its report, the Working Group of Experts also called upon Germany to discuss “reparations” with the lawful representatives of the genocide. Namibia criticized the report, saying that German-funded development projects in Namibia had nothing to do with reparations and were simply part of Germany’s development aid.
Namibia was probably even more incensed by Germany’s comments on the report of the Working Group. Under the heading “Germany’s colonial past”, the government does not speak of genocide, either in a historical-political sense or in a legal sense, but of “the suppression of revolts in South-West Africa”.
In international law much may be in a name. The use of the term “genocide” in the legal sense may give rise to legal consequences. In view of setting a precedent with regard to other colonial atrocities, the German government is therefore well-advised to distinguish between the use of the term in a historical-political sense and in a legal sense.
The International Court of Justice confirmed in the Croatian Genocide case that the Genocide Convention does not apply retroactively. In addition, it is a generally accepted principle of international law that “any fact, action or situation must be assessed in the light of the rules of law that are contemporaneous with it.” For example, the Arbitrator in the Island of Palmas case stated that “a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.” This rule of “intertemporal law” is also enshrined in Article 13 of the International Law Commission’s Articles on State Responsibility which provides: “An act of State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.” That substantive rules, including those of a jus cogens character, do not apply retroactively is also shown by Articles 64 and 71(2) of the Vienna Convention on the Law of Treaties, which provides that, as a rule, the termination of a treaty, which becomes void and terminates because of the emergence of a new peremptory norm of general international law, does not affect any right, obligation, or legal situation of the parties created through the execution of the treaty prior to its termination. Even allegations of genocide must thus be assessed against the yardstick that was applicable at the time when these acts occurred or were carried out. In 1904-1908, however, genocide did not yet exist as a concept either in treaty law or in customary international law. In addition, international law did not know of international law obligations of a State vis-à-vis its own citizens or the local inhabitants of its colonies. It is for that reason that, when U.S. President Harry S. Truman submitted the Genocide Convention to the Senate for “advice and consent”on 16 June 1949, he pointed out that Article IX of the Convention, which speaks of the responsibility of a State for genocide, “shall not be understood as meaning that the State can be held liable for damages for injuries inflicted by it on its own nationals.”
The events in Namibia, horrible as they may have been, thus do not qualify as “genocide” in the legal sense. In a historical-political sense, however, Germany should call a spade a spade. Referring to what is widely seen as the first genocide of the 20th century as a “repression of revolts” is at least insensitive, if not outright damaging to Germany’s reputation, and will not contribute to the historical reconciliation with Namibia.
Category: State responsibility