Published: 20 April 2023 Author: Stefan Talmon
From 1884 to 1915, Germany was the colonial power in the territory of what is today Namibia. In 1904, the Herero and Nama tribes revolted against German colonial rule. The revolt was brutally crushed by imperial German troops. It is estimated that, between 1904 and 1908, some 65,000 Herero (80 per cent of the tribe’s population) and some 10,000 Nama (50 per cent 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 tried for a long time to avoid referring to the events as ‘genocide’.
In 2015, the governments of Germany and Namibia entered into a dialogue that focused on coming to terms with the colonial past, including the atrocities committed by imperial German troops between 1904 and 1908. On 15 May 2021, the special envoys of the two governments initialled a joint declaration, entitled ‘United in Remembrance of Our Colonial Past, United in Our Will to Reconcile, United in Our Vision of the Future’. The joint declaration provided in the relevant parts:
The Government of the Federal Republic of Germany and the Government of the Republic of Namibia, as democratically elected by the people of Germany and Namibia respectively, … Jointly declare the following: …
Both Governments affirm that the Preamble to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948) ‘recognises that at all periods of history genocide has inflicted great losses on humanity’. The German Government acknowledges that the abominable atrocities committed during periods of the colonial war culminated in events that, from today’s perspective, would be called genocide.
On the basis of this acknowledgement, the German Government recognizes Germany’s moral responsibility for the colonization of Namibia and for the historic developments that led to the genocidal conditions between 1904 and 1908 … with its gross human rights violations and human sufferings thereof. On the same basis, Germany accepts a moral, historical and political obligation to tender an apology for this genocide and subsequently provide the necessary means for reconciliation and reconstruction. …
The Namibian Government and people accept Germany’s apology …
A separate and unique reconstruction and development support programme will be set up by both Governments to assist the development of descendants of the particularly affected communities, in line with their identified needs …
Both Governments further decide to jointly develop and put into place a separate legal structure, i.e. a joint trust or fund in order to select and fund projects which aim to improve reconciliation.
The Government of the Federal Republic of Germany will make available the amount of 1100 (one thousand one hundred) Million Euros, as a grant to implement the envisaged projects within the framework of the above-mentioned programmes. Germany commits herself to allocate this amount over a period of 30 years. …
Both Governments share the understanding that these amounts mentioned above settle all financial aspects of the issues relating to the past addressed in this Joint Declaration.
On 28 May 2021, Federal Foreign Minister Heiko Maas issued the following statement on the conclusion of negotiations with Namibia:
Our aim was and remains to find a shared path towards genuine reconciliation in memory of the victims. This includes being unreserved and unflinching in naming the events of the German colonial period in what is now Namibia and in particular the atrocities between 1904 and 1908. We will now officially call these events what they are from today’s perspective: a genocide.
Given Germany’s historical and moral responsibility, we will ask Namibia and the descendants of the victims for forgiveness.
As a gesture of recognition of the immeasurable suffering inflicted on the victims, we want to support Namibia and the victims’ descendants with a substantial programme to the tune of 1.1 billion euro for reconstruction and development. The communities affected by the genocide will play a key role in shaping and implementing this programme. Legal claims for compensation cannot be derived from it.
Foreign Minister Maas made it clear that no legal consequences and, in particular, no claims for compensation could be derived from the joint declaration. First of all, the document in question was a mere ‘political declaration’, rather than a legally binding international treaty. The declaration spoke of ‘atrocities’, ‘outstanding questions’ and ‘injustice of the past’, rather than of crimes or internationally wrongful acts. The Federal Government recognised Germany’s ‘historical and moral responsibility’ and accepted a ‘moral, historical and political obligation’ – but not a legal one. There was no mention of reparations or compensation. Instead, the declaration referred in neutral language to ‘means for reconciliation and reconstruction’, a ‘reconstruction and development support programme’, a ‘joint trust or fund in order to select and fund projects which aim to improve reconciliation’ and ‘a grant’.
Most importantly, the classification of the atrocities as ‘genocide’ was qualified by adding the phrase ‘from today’s perspective’. The term ‘genocide’ was thus employed in a historical-political, rather than in a legal sense. This meant that Germany had prevailed. The meaning of the term ‘genocide’ had dominated the negotiations of the joint declaration. While it was Namibia’s aim that Germany officially acknowledge that a genocide in the legal sense took place and pay compensation, Germany was prepared to use the term only in a historical-political sense; its main argument being that the Genocide Convention of 1948 could not be applied retrospectively. Germany was afraid that a use of the term ‘genocide’ in the legal sense could give rise to claims for reparations.
In response to a parliamentary question of whether the payments to Namibia under the joint declaration amounted to reparations, Federal Foreign Minister Maas stated:
Over the years, there have always been countries where reparations were discussed. This applies to Poland, for example, but also to Greece. However, it must be said that this has nothing to do with the case before us because this deal is exclusively one on a voluntary basis. There are no legal grounds on the basis of which this payment is being made or promised. In this respect, it is not comparable to the reparations issue as such.
Apart from Germany’s formal apology for the genocide, the joint declaration gave Namibia very little in terms of substance. Since 2004 the Federal Government had politically accepted that the ‘atrocities committed at that time would today be called genocide.’ This had been expressly confirmed in 2015. The amount of €1.1 billion, which Germany was to make available over a period of thirty years for reconstruction and development support programmes to assist the descendants of the communities particularly affected by the genocide and for projects on reconciliation, remembrance, research and education, was about roughly the same amount German development cooperation had spent in the country in the thirty years since Namibia’s independence in 1990. Namibia, on the other hand, agreed at least politically not to raise any claims for reparations in the future.
The joint declaration was controversial in Namibia not just because, in effect, it relinquished any claims for reparations but also because the representatives of the communities affected by the genocide were not adequately involved in the negotiations of the joint declaration. The Federal Government conducted the negotiations with the ‘democratically elected’ government of Namibia because it ‘represent[ed] the entire Namibian people under international law’. For that reason, negotiations or international agreements with individuals or with individual groups within Namibia were precluded. The Federal Government explained:
The federal government’s negotiating partner is and will remain the Namibian government. According to the Namibian constitution, it is responsible for foreign policy negotiations. It has a democratic mandate and offers Nama and Herero representatives opportunities to participate. We, the federal government, have also ensured from the outset that representatives of the Nama and Herero were involved in all phases of the dialogue. On the Namibian side there was a so-called technical committee that advised the negotiators. Five representatives of the descendants of the victims were included in the [Namibian] delegation and took part in all rounds of negotiations. In addition, the Namibian delegation leader was also advised by a coalition of 24 traditional authorities and royal families.
In this respect, yes, the federal government has an interest in the voices of the Nama and Herero, the voices of the descendants of the victims, being included in this negotiation process. That has been the case so far. However, only the Namibian government can be a negotiating partner on an equal footing.
It was claimed that by negotiating with the Namibian government, Germany violated the participation rights of the Ovaherero, Nama, Damara and San communities under international law. In particular, it was argued that excluding these communities from the negotiation process violated Article 18 of the UN Declaration on the Rights of Indigenous People, which provides that ‘indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedure.’ Both Germany and Namibia voted in favour of the declaration. Germany even co-sponsored the draft resolution whereby the UN General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples. The declaration, however, is aspirational with political and moral force but not legal force. It was not intended itself to be legally binding or reflective of international law. According to the declaration’s preamble, it is a ‘standard of achievement to be pursued in a spirit of partnership and mutual respect’. Even if the declaration was legally binding, it does not provide for a right of indigenous peoples to participate in inter-governmental negotiations or agreements. For example, Article 36 of the declaration, which deals with cross-border issues, provides that States shall act ‘in consultation and cooperation with indigenous peoples’ but not that indigenous peoples have a right to participate in the inter-State negotiations themselves.
A right of communities within a State to participate in inter-governmental negotiations also cannot be derived from Articles 1 and 25 of the International Covenant on Civil and Political Rights or Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, or from the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
In its 2017 Report on its mission to Germany, the Working Group of Experts on People of African Descent regretted that the German government had thus far ‘not consulted seriously with the lawful representatives of the minority and indigenous victims of that genocide to discuss reparations’ and recommended that Germany ensure that the Ovaherero and Nama people were ‘included in the negotiations currently ongoing between the Governments of Germany and Namibia.’ In November 2018, the UN High Commissioner for Human Rights, Michelle Bachelet, also recommended that the Federal Government ensure that ‘Ovaherero and Nama peoples are included in the negotiations between the Governments of Germany and Namibia’. But these were recommendations only. Neither the Working Group nor the UN High Commissioner for Human Rights recommended that Germany negotiate with representatives of the Ovaherero and Nama people but that they were included in the negotiations between the two governments. How these representatives were included in the negotiations was left to the discretion of the two governments. Community representatives were included in the Namibian delegation and also acted as advisers to the Namibian delegation leader who was himself Herero. It was not for the federal government to dictate to Namibia how to include members of Ovaherero and Nama peoples in the inter-governmental negotiations and it would have been contrary to international law to negotiate directly with the representatives of the affected communities against the will of the Namibian government.
Category: State Responsibility