Reparations for Historical Human Rights Violations

Legal Studies Research Paper Series Research Paper No. 08-14

Reparations for Historical Human Rights Violations: The International and Historical Dimensions of the Alien Torts Claims Act Genocide Case of the Herero of Namibia Jeremy Sarkin Carly Fowler

Human Rights Review (2008) 9: 331-360 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection at: http://ssrn.com/abstract=1280992

Electronic copy available at: http://ssrn.com/abstract=1280992

Electronic copy available at: http://ssrn.com/abstract=1280992

Reparations for Historical Human Rights Violations: The International and Historical Dimensions of the Alien Torts Claims Act Genocide Case of the Herero of Namibia. Jeremy Sarkin Carly Fowler It is estimated that the number of people killed over the last hundred years, as a result of actions that are deemed to be the international crime of genocide, is more than 180 million. Countries where genocide is seen to have occurred during this time include Armenia, Uganda, the Soviet Union, China, Guatemala, India, Indonesia, Burundi, Rwanda, the Democratic Republic of Congo, Bosnia, Sri Lanka, Nigeria, Pakistan, Ethiopia, Turkey and Iraq. Many of these deaths occurred as a result of actions taken during colonial occupation. Countless other types of human rights violations also occurred in places under colonial control. In this context reparations for historical human rights violations are being examined by potential claimants far more today, than in any other period in the past. The term “historical” is used to delineate the period before World War II since reparations have on a number of occasions been paid since that the conclusion of that war by a number of countries including Germany, the United States and a number of other countries for violations committed. The fact that reparations are being sought for events prior to that is where the term historical is derived. Historical human rights violations are often linked to colonialism saw gross human rights violations committed in the colonies of countries such as Britain, France, Belgium, Portugal, the Netherlands, and Germany. This article examines events in one colony – German South West Africa (GSWA) in 1904 – as litigation is underway by members of the Herero tribe of today’s Namibia in the courts of the United States. The Herero have decided to seek reparations from Germany and several German banks and corporations for crimes, including genocide, committed during the colonial era. The tribe, led by Paramount Chief Riruako is suing Deutsche Bank and the Woermann Line, now known as Deutsche-Afrika Linien Gmbh.

& Co., for these reparations in the American court system under the Alien Tort Claims Act. 1 The outcome of this case will be important for both international law and for reparations movements as they pertain to historical violations of human rights. 2 However, the case also raises several important questions in international law. For instance are such claims timed barred or should such claims be entertained? If genocide was committed before the word itself was in use is it possible for the descendents of the victims to seek redress for the crimes? Are monetary reparations the best or only way for victims to heal and recover from past human rights violations? What will the impact of this case be on other reparation movements (e.g. other colonial era claims and the descendents of slaves in USA)? How enforceable is a decision in an American court regarding Germany and German companies? Which courts in what countries can be approached by victims of historical human rights claims to attain redress? Are the domestic courts in the former colonizing state willing and able to hear such cases? Does international aid from former colonial countries to the countries they colonized cancel out any demand for reparations? Is it true that the amount aid being given by these former colonizing states is so significant so as to equate to reparations for past wrongs? In any case did such wrongs occur too long ago to be litigated and receive redress today? These are important questions whose answers will change the landscape of international human rights law as well as a host of other areas including possibly international relations. The Herero case is a benchmark case, whose outcome could greatly influence the future of international human rights and humanitarian law and the course of other reparations movements. Already, for example, claimants in a number of former colonized countries, such as Tanzania, are seeking to litigate their claims. 3 The events that occurred in 1904 in GSWA must be understood in the context of what was happening at that time as far colonialism is concerned. GSWA, known today as Namibia, was under the administration of Imperial Germany (whose other colonies 1

Jeremy Sarkin, “Reparation for Past Wrongs: Using Domestic Courts Around the World, Especially the United States, to Pursue African Human Rights Claims.” In International Journal of Legal Information 32(2), 2004: 452. 2 Ibid., 453. 3 Sarkin, Jeremy, “The Coming of Age of Claims for Reparations for Human Rights Abuses Committed in the South” in Sur International Journal on Human Rights, 2004.

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included Togo, Cameroon, and part of Tanzania.) Germany initially had trouble consolidating their power in the region. While protection agreements had been signed with a number of groups there were disputes as to the extent and nature of these treaties. Many parts of GSWA were not under German control, but various natural disasters caused the local population to loose their land and cattle. White settlers were as a result populating and working the land. When war broke out in 1904 between German colonial forces and two of the largest indigenous populations – the Herero and the Nama –the Germans claimed to have been taken by complete surprise. 4 In retaliation, but arguing that it was done legitimately in the context of war, the German forces slaughtered tens of thousands of Nama and Herero men, women and children; those people who were not slaughtered were forced into the desert, where many of them perished of starvation, dehydration and by drinking at poisoned water wells. At the end of the conflict, it seems as though 80 percent of the entire Herero nation and 50 percent of the Nama nation had been killed in battle or had died soon after; 5 they had been killed directly by troops as a result of the poisoning of water wells, died in the wilderness as a result of deliberate German troop deployments, or died soon after the conflict in internment camps and forced labor programs. In the wake of the rebellions, the Germans forced the few survivors into slavery, stripped them of their rights, and used them for labor. At the time of this massacre, the term “genocide” had not yet been recognized or defined in international law. It has however been argued that even then did international law forbid this type of conduct and that Germany violated its own law as well as international law (particularly customary international law), which it was already then bound to follow. Critically, many at the time both in Germany and elsewhere objected to the brutality of the German policies, 6 and Germany’s right as a colonial power to act in such a manner was disputed.

Knowledge of the Herero genocide 4

Jon M. Bridgman, The Revolt of the Hereros. (Berkeley: University of California Press, 1981): 70. Ibid., 165. 6 Horst Drechsler, “Let Us Die Fighting:” The Struggle of the Herero and Nama against German Imperialism (1884-1915). (London: Zed Press, 1980): 155. Translated from original German by Bernd Zöllner. 5

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In the recent past and especially in the years leading up to Namibian independence in 1990 much academic work on Namibia focused on questions of achieving liberation and the context of Namibia’s independence. Before that, the focus was on South Africa’s claims to entitlement to continue to rule over South West Africa and the rulings by International Court of Justice on the matter. 7 The issue of the Herero and the genocide perpetrated upon them only came to the fore as a result of a number of studies in the 1970s and early 1980s by individuals such as Horst Dreschler, 8 Helmut Bley 9 and Jon Bridgman. 10 Since then, other studies picked up on the issue, but it is only really in the last ten years that real academic interest has emerged, and often the debate is limited to what events constitute genocide. However, outside of the literature, the Herero genocide and the killing of the Nama is hardly mentioned or discussed. While the literature on what was done to the Herero is growing, very little academic interest has been shown in the Nama. 11 Today, however, there is an enormous awareness in Namibia of the Herero war, particularly within the Herero community. This has come about in the last ten years and is mostly due to the Herero community filing various court cases. Awareness has also increased because of the attempts in Germany and Namibia, at least from 1995, to force Germany to deal with the issue. Yet in Germany there has been little focus, knowledge, or discussion about what occurred in the German colonies until relatively recently. 12 Contributing to this amnesia is the fact that the Holocaust absorbed much of the attention,

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See further Dugard, J. (ed). (1973). The South West Africa/Namibia dispute: Documents and scholarly writings on the controversy between South Africa and the United Nations. Berkeley: University of California Press. 8 Drechsler, H. (1986). Let us die fighting. Berlin: Akademie-Verlag. 9 Bley, H. (1968). Kolonialherrschaft und Sozialstruktur in Deutsch-Südwestafrika 1894-1914. Hamburg, Leibniz; Bley, H. (1971). South West Africa under German rule 1894-1914. London: Heinemann. 10 Bridgman, J. (1981). The revolt of the Hereros. Los Angeles: University of California Press. 11 One such work is Nuhn, W. (2000). Feind überall: Der große Nama-Aufstand (Hottentottenaufstand) 1904–1908 in Deutsch-Südwestafrika (Namibia). Bonn: Bernard & Graefe. 12 Many recognise that what occurred was genocide, for example Dreschler, Bley, Bridgman, Gewald and Krüger (Krüger, G. (1999). Kriegsbewältigung und Geschichtsbewusstsein: Realität, Deutung undVerarbeitung des deutschen Kolonialkriegs in Namibia, 1904 bis 1907. Göttingen: Vandenhoeck & Ruprecht). Yet there are still those who deny this: Spraul, G. (1988). “Der 'Völkermord' an den Herero: Untersuchungen zu einer neuen Kontinuitätsthese", 12 Geschichte in Wissenschaft und Unterricht, 713-39.

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and that after Germany lost its colonies, the impetus for inspection waned. The amnesia is perpetuated by the German education system, which hardly deals with its colonial past. 13 However, in the last few years, the German awareness of what had happened to the Herero in Namibia has increased. 14 This is partly due to the great interest vested in Namibia, because of its large German population (approximately 20,000), who have strong ties with Germany. Yet the bigger contributors to the German knowledge of the Herero genocide are the court cases that have been filed in the United States against Germany and certain multinational corporations (individually as well as collectively), the publicity generated by the 100-year commemoration events 15 and the greater academic interest in the matter, even within Germany. In spite of – or perhaps because of - the growing interest in the colonial history, there is disagreement about the past. Some have argued that once Germany got into the race for colonies, it was specific and directed in its actions, while others maintain that colonial policy until World War I remained a “haphazard and improvised affair.” 16

Pre-Genocide History Before the Europeans arrived in GSWA, several population groups inhabited the area, but for the purposes of this paper, the two most important of these groups are the Herero and the Nama. Several secondary groups also play roles in the early history of Namibia, and the influence of the Europeans is seen even before Europeans really begin to penetrate GSWA

13

See further Diebold, E., Engelhardt, S. & Iskenius, D. (2004, December). "Facing the past to liberate the future: Colonial Africa in the German mind". 6 Humanity in Action. Reports of the 2004 Fellows in Denmark, Germany and the Netherlands, New York, 53-58. 14 Demonstrations have been held all over the world in favour of reparations for the Herero. One of those was held outside the United Nations in New York. See for example Brath, E. "African Liberation Day rally for reparations". New York Amsterdam News, 20 May 2004. 15 See for example “Namibia marks century-old massacre amid calls for German compensation”. New York Times, 12 August 2004, A9. 16 Baumgart, W. (1987). “German imperalism in historical perspective”. In Knoll, A.J. & Gann, L.H. (eds), Germans in the tropics: Essays in German colonial history. New York / London: Greenwood Press, 151164, 158.

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The Herero 17 populated the central region of Namibia, and various estimates and censuses from the time place the population somewhere around 80,000. 18 Socially, Herero society was generally organized around its livestock; they were herders and nomads rather than farmers, and ownership of cattle was the best indicator of wealth in the community. 19 Cattle, in fact, were extremely important in the society of the Herero: Herero language includes over one thousand words to describe markings and color on cattle, and the Herero would go to war to protect their livestock if their cattle were threatened. 20 Politically, before the colonial era, the Herero were organized into paternal and maternal groups, which overlapped in complex patterns and were distinguished by the different roles of cattle in each society.21 But by 1870, this cooperative system began to collapse, 22 and according to historian Heinrich Loth, the Herero socio-political system at the end of the 19th century had transitioned into the early stages of pastoral feudalism. 23 The Herero were characterized by early European settlers as being barbaric 24 and “governed by ‘unspeakable abominations and vices,’” 25 but they did have a system of law and a network of treaties with other groups in the region, which they kept “about as consistently as European nations did; that is to say, they carried out the provisions of a treaty if they found it to their own interest.” 26 Because of this characterization, European explorers and settlers believed that the Herero could be “civilized” by the work of missionaries and trade, 27 and by 1842 the Rhenish Missionary Society had begun work in GSWA. The Nama, who settled south of the Herero, were the other main population group in the region at the end of the 19th century. 28 The Nama, who originally lived further 17

According to Charles John Andersson, a Swedish explorer, “the Damara [the Hottentot name for Hereros, meaning simply black man], speaking generally, are an exceedingly fine race of men.” Quoted in Bridgman, 16. 18 Drechsler, 17. 19 Ibid., 17. 20 Bridgman, 17. 21 Ibid., 18-19. 22 Ibid., 19. 23 Heinrich Loth, Die christliche Mission in Südwestafrika. Zur destruktiven Rolle der Rheinischen Missionsgesellschaft beim Prozess der Staatsbildung in Südwestafrika (1842-1893). (Berlin 1963.) 24 Jan-Bart Gewald, Herero Heroes (Cape Town: David Philip Publishers, 1999): 10. 25 Qtd. In Bridgman, 35. 26 Ibid., 20. 27 Ibid., 21. 28 Drechsler, 18.

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south, settled in GSWA around the beginning of the 18th century when they fled their former home to avoid extermination by the Boer settlers. By the end of the 19th century, there were about 20,000 Nama in GSWA. 29 Like their northern neighbors, the Nama did not practice agriculture; they were herders as well. 30 According to Horst Drechsler, Nama society and politics were organized in much the same way as that of the Herero, but Nama cattle herds were smaller and cattle played a somewhat less dominant role. 31 Other groups in GSWA during the colonial era include the Orlam, which was made up of Nama who had left the tribe and lived near Dutch settlers in South Africa as servants and slaves. The Orlam, like the Nama, eventually migrated to GSWA, and they were noted for their superior weaponry, as they carried firearms imported by their former masters. 32 Another group, the Baastards, or the Basters, were the legitimate descendants of marriages between Boer men and Nama women. 33 Proud of their European names and fearful of losing their lands and entitlements, the Basters remained loyal to the German colonizers during the Herero uprising. 34 Europeans first started infiltrating GSWA in the 1830s, before the area was colonized and even before missionaries arrived in greater numbers. In 1830, the Herero began to press southward in an effort to claim more land on which they could graze their cattle. This caused the Nama, who inhabited the land that was now threatened by the Herero, to turn to the more warlike Orlam for help. 35 Besides being more prone to violence, the Orlam, as descendents of Boer settlers in South Africa, possessed firearms and other advanced weaponry that were not available to the Nama or Herero at that time, which gave them a massive advantage in times of violent conflict. The strongest Orlam leader was a man named Jonker Afrikaner, who saw the Nama request as a way to gain dominance over the region that would become GSWA, and thus immediately took up arms on their behalf. 36 Jonker was feared and respected throughout the region, 37 and he

29

Drechsler, 18. Ibid., 18. 31 Ibid., 18. 32 Bridgman, 24. 33 Drechsler, 18. 34 Bridgman, 25. 35 Bridgman, 33. 36 Ibid., 33. 30

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eventually did gain influence over much of the area, as he raided and robbed Herero settlements and forced Herero leaders to become his clients and vassals. 38 As vassals, they paid Jonker tobacco, labor, and other services (including armed service), and in return, they were granted exemption from future raids. 39 This First Herero War 40 between Jonker’s forces and the Herero lasted twelve years, and in 1842, a peace agreement was signed between the Herero and the Orlam. By 1846, however, Jonker was in debt and once again began attacking the Herero in order to pay off his lenders. The Second Herero War, which also lasted twelve years, was much more violent, and the Herero especially were decimated, as they still did not possess guns or other modern weaponry. 41 By 1858, the Nama feared Jonker’s dominance, and they pressured him to end the fighting, which he did. The subsequent peace agreement was inclusive of the entire country: the Herero were given such acknowledgments as a police force assigned to punish those caught stealing cattle from individual Herero, but the tribe was also to be prevented from expanding their grazing land at the expense of Nama territory. 42 This peace agreement, while more inclusive than the agreement of 1842, lasted only five years, when in 1863, the Herero fought back against the Nama with weapons purchased from Swedish explorer Charles Andersson. Jonker died in 1861, and after his death, the power of the Orlam declined, as no one was strong enough to take over his role. Jonker’s death also ended the alliance of the Orlam and the Nama. 43 The missionary groups who began working in pre-colonial GSWA in the first half of the 19th century were another important influence in the region. The first group to arrive was the London Missionary Society, which was established in 1795 to “spread the knowledge of Christ among heathen and other unenlightened nations.” 44 Their first

37

Sir James Edward Alexander, An Expedition of Discovery into the Interior of Africa, through the hitherto undescribed countries of the Great Namaqua, Boschmans, and Hill Damaras, (London: H. Colburn, 1838): 154-155. 38 Gewald, 14. 39 Ibid., 16. 40 The “war” actually was not so much fighting between armed forces as a series of cattle raids, and as such it was not particularly violent or destructive to either side. 41 Bridgman, 34. 42 Ibid., 36. 43 Ibid., 37. 44 Council for World Mission: History (accessed March 20, 2007) available from http://www.cwmission.org.uk.

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mission in South Africa was established in 1822 by Dr. John Philip. 45 The LMS was joined in 1828 by the Rhenish Mission Society (RMS), which was founded in 1799 in Elberfeld, Germany. 46 By 1842, the RMS had expanded into GSWA, where they proved to be what Heinrich Loth described as a “classic example of how the activities conducted by a Christian missionary society over several decades make it possible to paralyze a country’s natural powers of defense and to pave the way for colonial subjugation.” 47 One of the many subversive activities in which they engaged in GSWA was the weapons trade: in 1870, the Missions-Handels-Aktiengesellschaft (roughly translated, the Mission Trade Corporation) was founded by the RMS. The very successful company’s main source of income was in the import of firearms and ammunition to GSWA, 48 which heightened the intensity of violence between indigenous population groups and, later on, between those groups and the European colonial powers. The missionaries also effectively inserted themselves into local politics, and they were especially influential in the First and Second Herero Wars. During the First Herero War, after an RMS mission was attacked by Jonker Afrikaner’s forces, the missionaries began to actively oppose Jonker by sheltering, feeding, and arming anyone fighting against him. 49 The RMS also played an important role in the conclusion of the Second Herero War, when the Society, along with the Nama, pressured Jonker Afrikaner to put an end to the fighting and implement a peace agreement. 50 According to John Wellington, the missionaries were motivated to do this in large part by their perception of themselves as bringers of enlightenment and peace to the heathen savages. They saw themselves as a handful of men, shut off from the rest of the civilized world, so to speak, and struggling hopelessly, as it were, [to persist] in spite of disappointments…[they] made roads, kept up communication with the coast, built houses, churches,

45

Cecil Northcott, Glorious Company: One hundred and fifty years life and work of the London Missionary Society, 1795-1945. (London: Livingstone Press, 1945): 38. 46 Loth. 47 Ibid., 9. 48 Drechsler, 19. 49 Gewald, 18. 50 Bridgman, 35.

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schools, introduced agriculture….instructed the natives in domestic science, needle and garden work, and collected congregations at their several residences. 51 All these projects and services enforced the belief that they were doing the work of God to enlighten and civilize the savage masses, and thus, they believed themselves called to bring peace and civilization by getting involved in local affairs and helping to end the violence. 52 Additionally, the RMS supported the presence of colonial powers in GSWA. While the territory eventually became a German colony, the British were actually the first Europeans to establish influence over the area. The Society, which had been rebuffed by the German Imperial government in the 1860s when the missionaries requested military presence and protection in the territory, then lent their support to the British, as the Society felt that British protection was better than no European protection at all. 53 The RMS, according to Horst Drechsler, “respected the English occupation, despite the burdens it entailed, as a fact that was, on the whole, conducive to the common weal of the country and to its development,” 54 and due in large part to RMS support, the British were able to establish a presence in GSWA in the second half of the 19th century. 55 The British made inroads into GSWA by enlisting not only the support of the Rhenish Mission Society, but also the support of Maherero Tjamuaha, the head of the Herero people, who saw the British as protectors against the Boers, who had been raiding Nama and Herero territories and committing atrocities against local villages. 56 While the Nama refused outright to support British incursions in the region, the prospect of further Boer infiltration caused a brief détente between the previously warring Nama and Herero. 57

This first collaboration (short-lived and ineffective as it may have been)

demonstrated that one of the only issues on which the Nama and Herero could agree was to reject the incursion of colonial powers on their respective lands; it also foreshadowed future resistance against the Europeans that would prove to be infinitely more devastating and fatal. 51

John H. Wellington, GSWA and Its Human Issues (Oxford: Clarendon Press, 1967): 160-161. Bridgman, 35. 53 Drechsler, 19. 54 Ibid., 19. 55 Gewald, 31. 56 Drechsler, 19. 57 Ibid., 19. 52

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Support for British presence in GSWA seemed to backfire on the RMS when their collaboration with British forces compelled them to abandon their lucrative arms trade in 1878. 58 Also, the British presence was limited to the coastal areas – in particular, to Walvis Bay; missionaries and missions in the inland regions, where the Society did much work, were no more protected than they had been before the British arrived. 59 Thus, beginning in 1880, the Rhenish Missionary Society was an outspoken supporter of German occupation and colonization of GSWA, and once the Germans arrived, the missionaries continued to play important roles in the political maneuvering that would go on. 60 Despite the British presence at Walvis Bay, by the 1880s, Germany was the largest European presence in GSWA, which, by all accounts included a few missionaries, a few traders, and a few prospectors. Previous attempts by the RMS to recruit imperial support for the territory had failed, as German Chancellor Otto von Bismarck had famously taken a position against acquiring overseas colonies. domestic politics forced Bismarck to change his stance.

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But by the 1880s,

In the 1881 German

parliamentary elections, Bismarck’s German Conservative Party was defeated by the Center Party and the leftist German Progress Party, and the National Liberal Party was close on the heels of the Conservatives. The implementation of a colonial policy allowed Bismarck to forge a right-wing alliance in the Reichstag and to build up nationalist sentiment among the public.62

At this point, Bismarck determined that Germany’s

international standing would not be compromised by a colonial policy, and the Chancellor began to acquire colonies, including GSWA. 63 By the 1884 parliamentary election, public enthusiasm for colonialism was high, and the Conservatives thus gained several seats to become the second largest party in the Reichstag, which gave political justification to the colonial policy. 64

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Ibid., 20. Ibid., 20. 60 Ibid., 20. 61 Hartmut Pogge von Strandmann, “Domestic Origins of Germany’s Colonial Expansion Under Bismarck,” Past and Present 42, no. 2 (1969): 143. 62 Ibid., 143. 63 Daniel Joseph Walther, Creating Germans Abroad: Cultural Policies and National Identity in Namibia. (Athens, OH: Ohio University Press, 2002): 1. 64 Von Strandmann, 143. 59

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Other justifications for German colonialism were given to the German public. The concept of the “White Man’s Burden,” which was seen previously in the attitudes of the Rhenish Missionary Society was also at work in the minds of the German populace, who supported colonial policy as a means to spread European civilization and enlightenment to the masses of heathens living in the dark. Further, the rhetoric also argued that it was only through the imposition of force that these advancements could be made. 65 In GSWA, the prevalence of wars between the Nama and the Herero 66 was also used as justification for the German infiltration of the territory. In 1880, Britain confirmed to Germany that British territory in the region was only comprised of Walvis Bay and a small piece of surrounding land, and by May of 1883, Adolf Lüderitz, a German merchant, established an outpost at Angra Pequena, a bay on the coast of GSWA, 67 by “purchasing” it from an Orlam chief for 2500 Marks, 200 rifles, and a bundle of toys. 68 On April 24, 1884, Bismarck officially placed Angra Pequena (later renamed “Lüderitz Bay” 69 ) under German protection, thus establishing a German colonial presence in GSWA. 70 By 1886, the entire region of GSWA had come under German influence. 71

Treaties and the Berlin Conference During the 1880s, Germany entered into several treaties and agreements that had implications for their activities in GSWA. In 1884, Germany, along with other European powers, congregated in Berlin to carve Africa into colonies. 72 The Berlin West Africa Conference gave Germany official European recognition of its right to operate in and colonize GSWA.

Also outlined in General Act of the Conference at Berlin were

provisions and guidelines for European behavior in Africa. Obligations included “‘preservation of the native tribes,’ the suppression of slavery and the slave trade, and the

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Bridgman, 39. Although only two of these wars were discussed in this paper, between 1830 and 1884, the Nama and the Herero actually fought four wars against each other. 67 Drechsler, 21. 68 Bridgman, 40. 69 Ibid., 40. 70 Drechsler, 22. 71 Bridgman, 41. 72 See Appendix A for a map of European colonies in Africa after the Berlin West Africa Conference. 66

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protection of religious freedom.” 73 Thus, by 1884, Germany had entered into a treaty obligating it to protect some of the rights of the indigenous populations in its colonies. Additionally, Germany became party to the 1899 Hague Conventions on April 9, 1900, 74 which outlined several laws of war, including laws on the conduct of fighting and the treatment of prisoners and non-combatants. Germany’s obligations were further extended by a series of other treaties signed during this time: the Treaty of Berlin (1878), which outlined the rights of indigenous peoples and minorities, 75 the German-Dutch Agreement (1889), the German-Belgian Agreement to Criminalize Trade in Girls (1890), the Anti-Slavery Convention (1890), which protected the “aboriginal population of Africa,” 76 the Agreement on Administrative Regulation to Ensure Effective Protection Against Trade in Girls (1904), the Second Paris Peace Agreement (1815) and the Quintuple Treaty (1841), which outlawed trade in human beings, and in particular, Africans. 77 It is also important to note that treaties make up a large portion of international law, and they have been recognized as such for hundreds of years. Defined as “binding formal agreement[s], contract[s], or other written instrument[s] that establish obligations between two or more subjects of international law (primarily states and international organizations,)” 78 treaties place specific obligations and responsibilities on the signatory states. While treaties often do not include direct provisions for enforcement, they are nevertheless part of the bodies of “hard law,” and public international law, and they are binding on the states party to them. It should then follow that any breach of a treaty should incur some sort of penalty or repercussion on the state responsible for the breach.

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Rachel Anderson, “Redressing Colonial Genocide Under International Law: The Hereros’ Cause of Action Against Germany,” in California Law Review, July 2005: 5. 74 “List of the Signatory and Contracting Powers of the Hague Conventions of 1899 and 1907 and Dates on Which the Conventions Took Effect for Each of Them.” Accessed April 9, 2007. Available from http://www.pca-cpa.org/ENGLISH/CSAI/. 75 Jeremy Sarkin, “Historical Origins, Convergence, and Interrelationship of International Human Rights Law, International Humanitarian Law, International Criminal Law, and Public International Law and Their Applications Since the Nineteenth Century,” in Human Rights and International Legal Discourse, Volume 1 (2007), 145. 76 “General Act for the Repression of the African Slave Trade,” Brussels Conference, July 2, 1890. 77 Ibid., 5. 78 “Treaty,” in Encyclopaedia Britannica. Accessed April 3, 2007. Available from http://www.search.eb.com/eb/article-9073266.

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The next step of German consolidation of power was to conclude treaties of protection with the indigenous groups. German representatives were able to easily sign treaties with some of the smaller groups (for example, the Basters), but the Nama and Herero were reluctant at the outset. However, after the possibility of renewed hostilities between the two groups increased, the Herero signed the treaty to take advantage of the offer of German protection, especially since they knew that British influence and protection in the region was waning. 79 The treaties themselves laid out minimal obligations for the signatories: there was to be no cessation of land; tribal chiefs who signed the treaty agreed to not enter into treaties with any other colonial powers or give over any of his land to other colonial powers; tribal chiefs promised to protect the life and property of German settlers and to protect their right to trade. The Germans, in return, promised to “protect” the tribe and chief and to recognize each chief’s jurisdiction over his tribe; also, the Germans promised to respect local and indigenous traditions and practices and promised to not engage in actions that would be illegal in Germany. 80 Because Germany entered into treaties with indigenous groups, some theorists argue that Germany thus conferred statehood on these tribes. According to legal theorist Rachel Anderson, “the German government's conclusion of bilateral treaties with the Herero Nation is proof of their recognition of the Herero Nation as a subject of international law with the ‘general competence to conclude treaties.’” 81 Anderson continues this line of reasoning by arguing that since Germany had recognized the treatymaking powers of the Herero – and their existence as a state – the Berlin West Africa Convention thus conferred “third-party” rights to the Herero that the German colonizers then proceeded to violate. 82 Anderson’s argument centers the notion of “third party rights.” While third party rights officially became part of international law in the Vienna Convention on the Law of Treaties, which entered into force in 1980, 83 Anderson argues that the notion existed 79

Drechsler, 28. Drechsler, 27. 81 Anderson, 12. 82 Ibid., 10. 83 The Vienna Convention states that “a right arises for a third State from a provision of the treaty if the parties to the treaty intend the provision to accord that right to…the third State.” “Vienna Convention on 80

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before then and applied to the Berlin West Africa Convention’s treatment of and conferral of rights on the indigenous peoples of Africa. Anderson argues that the Herero had previously been recognized as a state – and thus a subject of international law – by Germany, and that the Berlin West Africa Convention intentionally conferred rights on indigenous peoples and obligations on colonial powers. She then makes the case that the Herero were thus the recipients of third party rights, which the Berlin West Africa Conference intended to confer. Therefore, she concludes, later German actions against the Herero people violated those third party rights, and consequently Germany and German corporations are guilty of breaching the Berlin West Africa Convention and should pay accordingly. Anderson’s argument is flawed, however.

First, Article 4 of the Vienna

Convention, called “Non-retroactivity of the present Convention,” states that “the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.” 84 Thus, the “third State” provision of the Convention is not applicable to the Berlin West Africa Convention, which entered into force almost one hundred years before the Vienna Convention. Also, Anderson’s claims that the drafters of the Convention intended to confer these third party rights on indigenous populations is unsubstantiated, especially since the concept of third party rights did not exist at the time the Convention was signed. 85 While Anderson’s third party argument does not work, she does, as Sarkin notes, convincingly argue that the Berlin West Africa Convention’s intentional conferral of protections and rights on the indigenous peoples of Africa thus outlaws wars of annihilation by European powers against those peoples. 86

Colonization

the Law of Treaties,” Article 36. Accessed April 10, 2007. Available from http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. 84 Ibid., Article 4. Accessed April 10, 2007. Available from http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. 85 Sarkin, “Historical Origins,” 146. 86 Ibid., 146, and Anderson, 8.

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In 1888, after three years of raids and warfare between the Herero and the Nama, 87 Maherero Tjamuaha decided to annul his treaty with Germany because the “protector” had never once offered any sort of protection to the Herero against their enemies. This feeling of Herero dissatisfaction was compounded by the stream of German settlers that descended upon the territory after the “discovery” of gold in the area in 1887. 88 German settlers and merchants rushed to GSWA to make their fortune, and while in GSWA, they caused many problems: they engaged in “drinking bouts and invectives against the Africans and…..the Germans [took] liberties with the Herero women.” 89 Eventually it was revealed that the entire gold rush was a hoax. According to Horst Drechsler, evidence implicates Dr. Heinrich Goering (Imperial Commissioner of GSWA and father of the infamous Nazi Field Marshall) as the instigator of the scheme, which by all accounts was designed to “revive interest in this German colony” and make a name for himself in the Fatherland. 90 Further exasperating the Herero was the arrival of Captain Curt von Francois and his twenty-one soldiers in GSWA. Sent to the region to “defend German interests,”91 the contingent instead aggravated the native populations to the point where the German troops had to withdraw from the populated regions to a watering hole on the edge of the desert. To exact retribution, Captain von Francois ordered an embargo on all arms and ammunitions entering Herero territory – an action he knew would have dire consequences for the Herero. 92

Curt von Francois also demonstrated his true attitude towards

Germany’s newest subjects: he wrote in a private letter The Europeans have failed to give the black man the right kind of treatment. They have made too many concessions, granting all his wishes without bearing in mind that this is only interpreted as a sign of weakness. Nothing but relentless severity will lead to success. 93 As the Herero were at that time engaged in a war against the Nama, led by Hendrick Witbooi, such an embargo was completely unacceptable, and the Herero, who were 87

Gewald, 32. Drechsler, 35. 89 Gewald, 38. 90 Drechsler, 35. 91 Gewald, 34. 92 Ibid., 34. 93 Qtd. In Drechsler, 43. 88

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subdivided into three main tribes (led by Maherero, Manasse Tjisiseta, and Zacharias Zeraua respectively), joined forces against the German party. 94 Samuel Maherero, son of the chief Maherero Tjamuaha, sent a letter to the Captain von Francois demanding that the German contingent either leave GSWA or openly declare war against the Herero. 95 After being rebuffed by the Germans, the Herero instituted a blockade of their own, but as they needed the embargoed weapons to protect themselves from the forces of Witbooi, who was perceived at that time as a greater threat than the Germans, they quickly caved, and the Herero union dissolved. 96 These examples of relations between the German settlers and Herero peoples all serve to emphasize that there was never a contented peace between the colonizers and their new constituency. Rather, relations between the two were usually in flux, often violent, and always informed by the Germans’ self-perceived superiority. The attitude demonstrated in Captain Curt von Francois’ letter is demonstrative of the underlying prejudices that further augmented the problems and divides that already existed between the Germans and the indigenous population. This shaky foundation became extremely important in the years after the Germans consolidated their hold on the colony and started to exploit the territory’s natural resources and its people. By the mid-1890s, Witbooi and Samuel Maherero (who was chosen to lead the Herero after his father, Maherero Tjamuaha died in 1890) had realized that the climate in GSWA had changed. The Germans had, without permission, occupied Windhoek, a centrally-located city that sat in the middle of Herero territory. 97 Imperial Commissioner Goering was writing letters to Witbooi, urging him to halt the war between the Nama and Herero. 98 It was obvious that the German colonizers presented a more dangerous and imminent threat to both the Nama and Herero than either group presented to the other. 99 Witbooi approached Samuel Maherero, which allowed for rapprochement between to two groups, and by 1892, the Herero and the Nama negotiated a peace with each other so they

94

Ibid., 34-35. Ibid., 35. 96 Ibid., 35. 97 Ibid., 50. 98 Ibid., 54. 99 Bridgman, 44-45. 95

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could utilize their resources to unite against the German menace rather than continuing to fight each other. 100 The Germans feared this union, and in retaliation, they attacked the NamaWitbooi camp at Hornkranz. According to Horst Drechsler, the exact orders given by Commander von Francois were: “‘the object of this mission is to destroy the tribe of the Witboois.’” 101 The surprise dawn attack left dead 10 of Witbooi’s men and 75 women and children of the village. The surviving men fled the village to regroup, while the surviving women and children were taken to Windhoek as prisoners. 102 In retaliation, Hendrick Witbooi and his men started raiding and attacking German settlements and outposts, but rather than killing people, they would usually just seize livestock. The Germans were unable to counter-organize, leading one member of the Reichstag to state that “‘Witbooi is the real master of the country, and Francois [the German commander] is no match for him.’” 103 By 1893, Curt von Francois had been recalled and replaced by Theodore Leutwein, who implemented a system of “divide et impera,” or “divide and rule,”

104

which incorporated both von Francois’ philosophy of

force with Goering’s diplomatic approach and was basically successful for the following ten years. 105 Leutwein’s approach was also based on his vision of a colony that was a true extension of Germany itself, filled with German settlers and laws. He recognized that this invariably would lead to the total decimation of the native populations, but paradoxically, he also wanted to somehow make the process as economically and psychologically painless as possible for the tribes. 106 Under Leutwein, the Germans were once again able to divide Witbooi’s Nama from Samuel Maherero’s Herero. They were also able to subjugate a number of minor tribes in the area, and by 1894, three separate tribes had acknowledged German “suzerainty,” 107 and in a show of strength, Leutwein even court-marshaled and executed

100

Drechsler, 55. Qtd. in Ibid., 70. 102 Gewald, 55. 103 Qtd. in Drechsler, 73. 104 Bridgman, 47. 105 Drechsler, 75. 106 Bridgman, 47. 107 Ibid., 48. 101

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a chief of one of these tribes. 108 After these successes, Leutwein turned his attention to Hendrick Witbooi and his forces. While Witbooi’s forces outnumbered the Germans, 109 German technical superiority caused Witbooi to sue for peace, and by mid-September of 1894, Leutwein had managed to sign a treaty with the Nama, although the treaty was much less stringent than the ones signed by the previously subjugated tribes. 110 While Leutwein was not full of hatred for the native populations, his policies – and one natural disaster – did far more to decimate the societies and lives of the native tribes, especially the Herero, than von Francois’s ever had. In 1897, rinderpest struck, which killed 80 percent to 90 percent of Herero cattle. 111 Because the Germans had prior warning of the approach of the disease, they were able to take some preventative measures and did not lose nearly as many cattle as the Herero. The beginning of the wealth gap between native populations and white immigrants can be seen in the effects of the epizootic: by 1902, 1,050 white settlers owned as many cattle as 80,000 Herero. 112 Additionally, German traders would cheat Herero looking to sell their cattle, merchants would charge massive interest on purchases made on credit, German policies started to force the native populations off of their traditional land to make room for the white settlers – by 1903 the Herero had lost 25% of their land. 113 At this point, the Herero were in crisis. In addition to the fact that their cattle had been decimated, their lands had been appropriated, and they had been repeatedly taken advantage of by German traders, their leader, Samuel Maherero, was actually benefiting from their decline. 114 He acquiesced to German policies because they gave him a share of the profits, and such was his corruption that when the Germans tried to enact some beneficial policies (for example, setting up a reserve so the Herero would not lose all of their land), Maherero opposed the policies out of fear that he would lose some of his wealth. 115

108

Drechsler, 75. Ibid, 77. 110 Bridgman, 48. 111 Ibid., 50. 112 Ibid., 50. 113 Ibid., 50-51, 52.. 114 Ibid., 51. 115 Ibid., 52. 109

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Additionally, the Herero were faced with the brutality and racism of the German colonizers. German policy was that in giving testimony in court, seven Africans were needed to equal one German, and the Germans inflicted such punishments on the natives as whipping and even murder. Germans were rarely, if ever, held accountable for their actions towards the native populations, and when on trial, they would often be acquitted because Germans could not be held responsible for actions committed while in a “tropical frenzy.” Germans were frequently accused of rape of women and young girls, but not one case of rape ever came to trial in GSWA. 116 And often, men who were convicted of murder would be released to serve in the German forces, as “it was decided that men with a record such as [this] would be able to render good service.” 117 Under the Germans, the Herero did not have equal rights or protection, and they were frequently abused by the German colonizers. The desperate situation of the Herero on so many levels led them to take so-called desperate measures. German actions in GSWA were in actuality illegal, even within the context of the laws of the time. Germany was a signatory of the General Act of the Conference at Berlin of 1885. One of the provisions of this Act was that all signatory states that claimed and ruled colonies in Africa must “bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave trade.” 118 Appropriation of Herero lands and the brutal racist policies of the German colonial government are in direct violation of the provisions of the General Act that stipulate that the colonial powers work for the “improvement of the conditions of [the indigenous populations’]…material well-being.” 119 While there were no mechanisms to ensure that such provisions were enforced, it still stands that through their actions towards the Herero in GSWA, Germany had violated public international law. In 1904, the Herero rose up against the German colonizers, in what was the start of the Herero-German War. On January 12, 1904, fighting between the Herero people

116

Drechsler, 133. Ibid., 135. 118 “General Act of the Conference at Berlin,” Article VI. February 26, 1885. Available from http://ocid.nacse.org/qml/research/tfdd/toTFDDdocs/4ENG.htm. Accessed March 21, 2007. 119 Ibid. 117

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and the German colonizers commenced, 120 and there are several arguments about the cause of the hostilities. The majority of historians believe that the Herero uprising was premeditated and centrally coordinated. This view holds that the uprising occurred in retaliation for the loss of land and livestock, as well as for the brutal treatment that many Herero had suffered at the hands of the Germans. 121 Others argue that the war was not about loss of land, which had not yet occurred, but about the perceived threat of loss of land to unceasing German expansion. Still others posit that the war was a self-fulfilling prophecy that grew out of German perceptions of Herero life. 122 Some scholars argue that the Herero did not, in fact, rise up in revolt against the German powers. Rather, the Germans misinterpreted several acts by the Herero as the beginning a rebellion and thus mobilized and fought as if they were facing an organized revolt. 123 This interpretation goes against the traditional argument that the Herero effort was in fact a coordinated resistance movement against the colonial power, an argument that is based on four letters written by Samuel Maherero. Gewald questions the assumption that the letters were written before the fighting began and argues rather that Samuel Maherero actually composed the letters in the standoff period following the initial outbreak of hostilities. 124 This interpretation, if accurate, has a fairly large impact on the legal actions that have been pursued by the Herero against the Germans. The current German government refuses to pay reparations to the descendents of the Herero massacred by German troops based on the logic that at the time of the Herero genocide, which happened eight months after the initial outbreak of hostilities, the law of nations had no provisions for rebel groups seeking redress for crimes committed during times of hostility. 125 If Gewald’s assessment is correct, however, then the Herero were not a rebel group. Rather, they were fighting in self-defense against the Germans, who initiated hostilities based on biases and misperceptions. If this interpretation is true, it could force Germany to change its position on the matter of reparations, and it would undermine some of Germany’s 120

Drechsel, 132. Drechsler, 132-133. 122 Gewald, 142. 123 Gewald, 159-160. 124 Gewald, 159-160. 125 John Grobler, “The Tribe Germany Wants to Forget,” in Mail and Guardian, March 13, 1998. Accessed March 30, 2007. Available from http://www.artsci.wustl.edu/~anthro/courses/306/herero.html. 121

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legal arguments against reparations. The question of reparations will be discussed in more detail below. Herero attacks during the early weeks of the war were confined to German military outposts and garrisons, and to farms, as attacks on those targets were most likely to result in the ultimate goal of German withdrawal from the region. Samuel Maherero forbade attacks on missionaries, fellow Africans, Boers, British citizens, women, and children, for fear that doing so would lead to wanton killing.

126

This decree from

Maherero is very important, because it demonstrates that the hostilities were only directed at the German colonizers and military; this was in no way a “racial war.” 127 After two weeks of fighting, about 130 people had been killed, 128 and the Herero had the upper-hand in the conflict. The Germans, however, quickly regained the advantage, which they kept throughout the course of the fighting. 129 Atrocities occurred throughout the duration of the war. For example, during the entire war, Germans did not grant mercy to captives; they either pressed prisoners into heavy labor or hung them outright. 130 But the worst atrocity against the Herero happened on August 11, 1904 at the Battle in the Waterberg. In the days leading up to the fight, the German battle plan was clear; in his “Directives for the Attack on the Herero,” General Lothar von Trotha, the general sent to GSWA to lead the German troops, clearly outlines a plan to exterminate the Herero. 131 Waterberg is located about 150 miles north of Windhoek, and directly southeast of the area is the Kalahari Desert. 132 Von Trotha’s orders for the deployment of his troops in preparation for the Battle in the Waterberg placed the smallest contingent of soldiers southeast of the area and the heaviest contingents in the east and the west. The Germans clearly expected the Herero to avoid the strong contingents and instead overrun the small contingent in the southeast. According to Drechsler, it was a well-thought-out plan that the Herero should break through towards the south and perish in the desert there. A study prepared by the General Staff is 126

Bridgman, 70. Drechsler, 143-144. 128 Bridgman, 74. 129 Drechsler, 144. 130 Gewald, 165, 167. 131 Drechsler, 155. 132 See Appendix B for map of Kalahari Desert. 127

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quite explicit on this point: ‘If, however, the Herero were to break through, such an outcome of the battle could only be even more desirable in the eyes of the German Command because the enemy would then seal his own fate, being doomed to die of thirst in the arid sandveld.’ Von Trotha had one aim: to destroy the Herero nation. 133 This account is chilling because it shows just how calculating the German military leaders were in planning the genocide. The actual battle lasted two days before the Herero had to capitulate to the Germans’ superior weaponry. 134 The Herero, as predicted, fled into the Kalahari Desert and were pushed even further in by von Trotha’s pursuing forces. After the Herero were entrenched in the desert, von Trotha deployed his troops to cut off escape routes and waterholes. 135 After six weeks of penning the Herero in the desert, von Trotha issued the following statement in early October of 1904: The Herero are no longer German subjects. They have murdered and stolen, they have cut off the ears, noses, and other body parts of wounded soldiers, now out of cowardice they no longer wish to fight…The Herero people must however leave the land. If the populace does not do that I will force them with the Groot Rohr [cannon]. Within the German borders every Herero, with or without a gun, with or without cattle, will be shot. I will no longer accept women and children, I will drive them back to their people or I will let them be shot at. These are my words to the Herero people. 136 Eyewitness testimonies tell of indiscriminate slaughter carried out by the Germans against the Herero. 137 This “Schrecklichkeit” order was finally lifted in late December of 1904 and replaced by orders to chain any surrendering Herero, brand them with “GH” (for “gefangene Herero,” or “Herero prisoner”), and use them for forced labor. 138 This final order ended the Herero rebellion, and most surviving Herero were eventually rounded up by the Germans 139 and placed in concentration camps. 140 During October 1904, as the German forces were cleaning up at the end of the Herero conflict, the Nama, still led by Hendrick Witbooi rose up in rebellion against the 133

Drechsler, 155. Ibid., 155. 135 Gewald, 171-172. 136 Qtd. in ibid., 172-173. 137 Drechsler, 158-159. 138 Bridgman, 131. 139 Ibid., 131. 140 Gewald, 185. 134

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colonizers.

Angered by German actions against the Herero in the North, Witbooi

organized an attack against the Germans. 141

Witbooi’s offensive augmented the

campaign of a man of both Nama and Herero descent, Jakob Morenga, 142 who began to raid German outposts in June of 1904. The fighting continued between the Nama and the Germans for a year, but in November of 1905, Hendrick Witbooi died of wounds sustained in battle. 143 After Witbooi’s death, the Nama quickly lost their will to fight, and by February of 1906, the Nama surrendered to the Germans. 144 By the end of October of 1906, the last of the Nama rebel groups had entered into negotiations with the Germans, and open hostilities of the Great Revolt concluded by November of 1906. At the end of the Herero-German War, around 60,000 (this is contested but it seems to be about this number out of a pre-war population of 80,000) Herero were dead – men, women, and children, either by German bullets, bayonets, poison or military policies. According to one German historian, “the Hereros ceased to exist as a tribe.”145 The Nama, like the Herero, also sustained devastating losses to their population. Before the rebellion, there were about 20,000 Nama in GSWA. By 1911, less than 10,000 remained in the territory. 146 While some perished in battle, far more probably died of disease and the majority most likely died in prison camps. 147 In the aftermath of the war, survivors were put in concentration camps, reduced to slave status, and most were forced to do hard manual labor. The concentration camps were a continuation of the horror experienced by the Herero during the last weeks of the war against the Germans. The Herero were kept behind barbed-wire fences, crammed into tiny, ramshackle houses, starved, and forced to work extremely long hours of manual labor for no wages. 148 People died in large numbers in these camps, some of which were owned and maintained by such corporations as Woermann Lines, a shipping company, for the free labor provided by the inmates. 149 Additionally, indigenous people could no

141

Bridgman, 137. Drechsler, 179. 143 Ibid., 190. 144 Ibid., 192. 145 Bridgman, 131. 146 Ibid., 165. 147 Ibid., 165. 148 Ibid., 188. 149 Ibid, 187. 142

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longer own land or cattle, native men over 17 had to carry identification passes, and not working was a punishable offense. “Masters” had unlimited power over their servants, and whippings were common as punishment. 150 While the populations of the Herero and the Nama were decimated by the war, the culture and societies of the tribes were decimated by the aftermath.

Was it genocide? For many years it was contested whether or not German actions in GSWA actually constituted genocide. According to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 1. Killing members of the group; 2. Causing serious bodily or mental harm to members of the group; 3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4. Imposing measures intended to prevent births within the group; 5. Forcibly transferring children of the group to another group. 151 German forces actively engaged in the majority of these acts during the entire colonial period in GSWA, but in the earlier years, there was no intent to totally destroy the native groups. As discussed above, however, during the course of the Herero-German War and the Nama Rebellion the German command, led by General von Trotha, planned their military campaigns so that the greatest number of natives would be “‘doomed to die of thirst in the arid sandveld.’” 152 During the 1904 rebellions, the goal of the German campaign was to wipe out the Herero tribe. Additionally, the orders given to the German troops to stop taking prisoners and start killing all Herero, including women, children, and unarmed people, also changed the nature of German violence against the natives. The intent to obliterate entire tribes of natives and the subsequent troop deployments and orders given to implement

150

Ibid., 165. “UN Convention on the Prevention and Punishment of the Crime of Genocide, Article 2.” Accessed March 21, 2007. Available from http://www.hrweb.org/legal/genocide.html. 152 Qtd. in Drechsler, 155. 151

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that goal implicate Germany as being guilty of genocide during the Herero and Nama conflicts of 1904 under the Genocide Convention. Additionally, the UN itself has recognized the German treatment of the Herero and Nama peoples as genocide. In 1983, the Sub-Commission of the UN Commission on Human Rights appointed Benjamin Whitaker as “Special Rapporteur with the mandate to revise, as a whole, and update the study on the question of the prevention and punishment of the crime of genocide.” 153 In the study, Whitaker names the German massacre of the Herero as one of several examples of genocide that took place during the 20th century, and he specifically cites von Trotha’s extermination order, the poisoning of water-holes, and the shooting of African peace emissaries as examples of how this genocide was carried out. 154 Whitaker also quotes Arnold Toynbee’s definition of genocide: “it is committed in cold blood by the deliberate fiat of holders of despotic political power, and that the perpetrators of genocide employ all the resources of present-day technology and organization to make their planned massacres systematic and complete.” 155 Under this definition, the Herero extermination was most definitely a genocide, as the Germans had taken over total power in the area (while they permitted tribes to maintain their own chiefs, those chiefs were often answerable to German orders.) German forces also used their far superior weaponry to soundly defeat native forces, even when the Germans were vastly outnumbered. Finally, Toynbee notes that the massacres should be planned and systematic, which, as discussed above, the German campaign to annihilate the Herero and Nama certainly was. Thus, even when examined through different lenses and within the parameters of different definitions, the German massacres of the Herero and Nama hold up to the accusations of genocide. It is evident that German actions in GSWA did indeed constitute genocide according to the modern definition of the crime. However, the true question is not whether or not genocide occurred, but whether or not Germany today is liable for actions that took place during the colonial era, before genocide was recognized as a crime by 153

Whitaker, Benjamin, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, July 2, 1985. Accessed March 21, 2007. Available from http://documents-ddsny.un.org/doc/UNDOC/GEN/G85/123/55/pdf/G8512355.pdf?OpenElement. 154 Ibid., 8. 155 Qtd. in Ibid., 8.

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international law. Some scholars argue that German actions in GSWA must not be judged by the laws of today, but by the laws of the time. Through this lens, Germany should not be held accountable because the atrocities committed by colonial forces were not illegal in the first years of the twentieth century. According to Professor James Crawford, “there was no prohibition on genocide at the beginning of the twentieth century. In fact, the term genocide hadn’t been invented.” 156 While this is a fairly common point of view, some scholars argue that the concept of genocide, if not the word itself, is a very old one, and that it was considered a crime far earlier than 1945. As Sarkin notes, the aforementioned Whitaker Report calls genocide a “comparatively recent neologism for an old crime.” 157 And while the word “genocide” was only coined in 1943 by Raphael Lemkin, 158 the concept had existed in a number of languages for far longer. For example, the German word for genocide, Völkermord (roughly translated as “the murder of a nation,”) had existed since 1831. 159 Additionally, genocide can be viewed as falling partially under the umbrella of “crimes against humanity,” a concept that existed before the Herero genocide of 1904, and thus had been outlawed since at least the nineteenth century. 160 Additionally, while the Genocide Convention was not drafted until 1948, the language used in the Convention does not create the crime of genocide, but “confirms” it, which indicates that it was a crime previously. 161 Because genocide existed as a crime under customary law before the Convention, the prosecution of genocide should not be limited by any questions of retroactivity; additionally, the Convention itself, unlike several other international treaties, does not prohibit retroactive application. 162 In fact there is international law that permits retroactive application of laws where serious international crimes are involved. Allan Cooper describes the German position on the Herero suit: “the 1948 Genocide Convention cannot be applied retroactively to cover crimes against humanity 156

James Crawford, qtd. in “German Bank Accused of Genocide,” BBC News, September 25, 2001. Accessed March 21, 2007. Available from http://news.bbc.co.uk/2/hi/business/1561463.stm. 157 Whitaker, 1. 158 Sarkin, Historical Origins,” 164, 159 Ibid., 164. 160 Ibid., 159. 161 Ibid., 167. 162 Ibid., 168.

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that occurred before the 1948 act.” 163 “Crimes against humanity,” were defined in 1945 by the London Charter of the International Military Tribunal as murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. 164 However, the concept of crimes against humanity dates back several years earlier. In 1915, for example, the French Foreign Office described the Turkish slaughter of the inhabitants of one hundred Armenian villages as “those new crimes of Turkey against humanity and civilization.” 165 It has also been argued that the concept of “crimes against humanity” came about even before 1915. 166 In fact, the origin of “crimes against humanity” as a legal concept lay in the preamble of the Second Hague Convention of 1899 and the Martens Clause. 167 The Martens Clause states Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience. 168 While the clause was specific in offering legal protection to civilians, 169 many legal scholars argue that the Martens Clause is also the legal genesis of the concept of humanity as victim in a time of conflict – and thus the concept of crimes against 163

Allan D. Cooper, “Reparations for the Herero Genocide: Defining the Limits of International Litigation,” in African Affairs, January 2007 (106.) Accessed April 12, 2007. Available from http://afraf.oxfordjournals.org.ezproxy.library.tufts.edu/cgi/content/full/106/422/113. 164 “London Charter of the International Military Tribunal: Article 6(c)” Accessed April 12, 2007. Available from http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm. 165 “France, Great Britain, and Russia Joint Declaration,” May 29, 1915. Accessed April 12, 2007. Available from http://www.armenian-genocide.org/popup/affirmation_window.html?Affirmation=160. 166 See Sarkin’s “Historical Origins, Convergence, and Interrelationship of International Human Rights Law, International Humanitarian Law, International Criminal Law, and Public International Law and Their Applications Since the Nineteenth Century,” in Human Rights and International Legal Discourse, Volume 1 (2007) for a full explanation of the Martens Clause and its applicability to the concept of crimes against humanity. 167 Sarkin, “Historical Origins,” 128. 168 “Martens Clause,” in “Laws of War: Laws and Customs of War on Land (Hague II),” July 29, 1899. http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm. Accessed July 14, 2007. 169 Sarkin, “Historical Origins,” 128.

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humanity, 170 a fact that has been recognized by the ICTR and by Robert H. Jackson, the chief prosecutor at Nuremburg. Jackson observed that “‘atrocities and persecutions on racial or religious grounds’ were already outlawed under general principles of domestic law of civilized states and that ‘[t]hese principles [had] been assimilated as a part of International Law since at least 1907.’” 171 These examples demonstrate that the Herero case has older roots as well. The concept of crimes against humanity did not come about in 1943 or 1948, but in fact much earlier. International criminal trials for war crimes and crimes against humanity can be seen from 1305 and 1474. In addition, the development of customary law through the nineteenth century 172 undermines the current German government’s stance and, to an extent, supports Herero claims. It is also important to note that Germany violated several international laws and agreements at the time. First, as previously discussed, German actions violated the provision of the 1884 Berlin West Africa Convention that bound signatory states “to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave trade.” 173 The colonial soldiers clearly violated this provision multiple times as they fought the war of annihilation against the Herero. Germany also clearly violated the second Hague Convention of 1899, to which Germany became party in 1900. 174 Article 23 of the Second Hague Convention of 1899 states: [During a time of war] it is especially prohibited: o To employ poison or poisoned arms; o To kill or wound treacherously individuals belonging to the hostile nation or army; o To kill or wound an enemy who, having laid down arms, or having no longer means of defense, has surrendered at discretion; o To declare that no quarter will be given. 175 170

Ibid., 129. Qtd. in Ibid., 146-7. 172 Ibid., 147-8. 173 “General Act of the Conference at Berlin,” Article VI. 174 “List of the Signatory and Contracting Powers of the Hague Conventions of 1899 and 1907 and Dates on Which the Conventions Took Effect for Each of Them.” 175 “Second Hague Convention: Laws and Customs of War on Land: Article 23,” July 29, 1899. Accessed April 10, 2007. Available from http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm. 171

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During the relatively short duration of war against the Herero, the German troops broke these provisions numerous times. On orders from the commanders, German soldiers poisoned wells, caused dehydration and death among the Herero, they indiscriminately slaughtered civilians, women, and children who had no weapons or means of defense, and on General von Trotha’s orders, German forces offered no quarter, but instead killed any Herero who came forward. 176 These acts were unquestionably in violation of the Second Hague Convention. It is true that to hold Germany liable for charges of genocide committed at a time before the term was coined would be very difficult. However, it is not impossible, as German acts in GSWA, when judged within the parameters of the laws at the time, were still illegal. They clearly, demonstrably, and intentionally violated both the Berlin West Africa Convention and the Second Hague Convention, to both of which Germany was party in 1904. Additionally, even though the term genocide did not exist in 1904, the concept of the crime did, as a particular sort of crime against humanity. Finally, there is no provision of the Genocide Convention outlawing its retroactive applicability, and it even recognizes that genocide existed as a crime before the drafting of the Convention, which leaves the Herero free to use it in support of their case. Thus, there are certainly grounds for Herero legal action against both the German government and German corporations who helped facilitate the atrocities committed by the German colonizers.

The Herero Cases in the USA Since the late 1990s, the Herero have sought reparations from the German government and German corporations who played a role in the crimes committed in GSWA. 177 Germany, expectedly, has repeatedly denied the Herero’s claim to reparations, and for several years, German leaders even refused to issue an official apology to the Herero for the colonial crimes. During a 1998 visit to Namibia, former German president Roman Herzog told the Herero people that too much time had passed for an official apology to be

176

Gewald, 170-174. Sarkin, Jeremy, “The Coming of Age of Claims for Reparations for Human Rights Abuses Committed in the South” in Sur International Journal on Human Rights, 2004.

177

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offered. 178 President Herzog has also argued that the German government today cannot be held liable for the colonial atrocities because international law at the beginning of the twentieth century did not have any provisions allowing ethnic minorities to seek reparations. 179 Herzog’s argument here is flawed, however. According to Ryan Michael Spitzer, the notion of paying reparations to atone for gross crimes and atrocities against individuals began after the Second World War. While there was controversy around the calls for monetary compensation for the crimes for the Holocaust, in the end, Germany “voluntarily agreed to compensate the survivors of the Holocaust under the leadership of Chancellor Konrad Adenauer, who believed the German people owed a moral duty to compensate the Jewish people for their material losses and suffering.” 180 No legislation existed during the time of the Holocaust that would give genocide victims the right to reparations, yet Germany paid reparations anyway. Similarly, during the 1940s there were no laws on the books in the United States that granted American citizens interned during times of war the right to claim reparations from the government afterwards. Yet in 1988, the Civil Liberties Act granted $1.2 billion to the families and descendents of those Japanese Americans imprisoned in internment camps during the Second World War. Another important case to mention is that of the Aleut Indians of Alaska who were relocated from their traditional villages during the Second World War. 181 This case is very relevant to the Herero claims because the reparations were granted to both those villagers who had been relocated and to the descendents of those who had been moved fifty years after the relocation occurred.

In this case, it was determined that “the

problems that had been caused by the relocation not only affected the communities at the time but also that these events were still having effects four or five decades later. It was determined that those consequences would continue for the foreseeable future.” 182 Such a 178

Grobler. Ibid. 180 Ryan Michael Spitzer, “The African Holocaust: Should Europe Pay Reparations to Africa for Colonialism and Slavery?” in Vanderbilt Journal of Transnational Law, October 2002. 181 Sarkin, Jeremy, “The Coming of Age of Claims for Reparations for Human Rights Abuses Committed in the South” in Sur International Journal on Human Rights, 2004. 182 Jeremy Sarkin, “The Coming of Age of Claims for Reparations for Human Rights Abuses Committed in the South” in Sur International Journal on Human Rights, 2004: 75. 179

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precedent is very useful to the Herero case, which is being pursued by the descendents of the victims of the crimes, rather than the victims themselves. Much like the Aleut case, the subsequent generations have suffered greatly from the legacy of the genocide, which decimated not only the Herero population, but also their stores of wealth, cattle, and land. According to the precedent set by the Aleut case, the Herero may be entitled to compensation. While these examples are not exact reflections of the particular claims of the Herero, they still demonstrate that there is a precedent for the paying of reparations to victims of gross human rights abuses, even if those abuses were not illegal at the time they were committed, or even if victims did not have the legal right to pursue reparations at the time the crimes occurred. While the concept of reparations paid to individuals certainly became very public and widely known following the Second World War, the Herero case for reparations is made stronger by the fact that the concept of reparations paid to individuals did in fact exist before 1945. Sarkin cites Ware v. Hylton, an American case from 1796, in which the U.S. Supreme Court acknowledged the rights of individuals to compensation for acts that happened in wartime. 183 Sarkin also refers to Theodore Woolsey’s 1891 treatise on international law, which argues that “a right of redress and compensation for individuals that suffered injury [during times of war] existed.” 184 Woolsey also comments that “cruelty ‘beyond the sphere of humanity’ violated certain rights and demanded redress.” 185 These examples demonstrate that the notion of reparations to individuals did in fact exist before 1945, and even before the Herero genocide of 1904. Thus, by 1904, there was already international legal precedent for the compensation of individuals for atrocities committed during times of war. By 2004, German officials had relented to a point; in August of 2004, Heidemarie Wieczorek-Zeul, German Minister for Economic Cooperation and Development spoke at the commemoration of the 100th anniversary of the Herero genocide. She stated, “we Germans accept our historic and moral responsibility and the guilt incurred by Germans at that time,” and during the same speech, she called German actions against the Herero 183

Sarkin, “Historical Origins,” 138, and Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) Sarkin, “Historical Origins,” 138. 185 Qtd. in Ibid., 138. 184

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genocide.

She added, “everything I said in my speech was an apology for crimes

committed under German colonial rule.” 186 While Germany did supposedly relent and apologized for the actions of the colonial regime, which some however question, they have remained firm on the point of monetary compensation, and refuse to pay official reparations.

The Alien Tort Claims Act Because of Germany’s unwillingness to compensate the Herero, the tribe has attempted to use the United States’ court systems to compel the German government and two German corporations to pay reparations for the acts committed by the German colonial forces and supported by German corporations. In September of 2001, the Herero filed a claim for $2 billion 187 against Deutsche Bank and Woermann Lines for their role in the atrocities committed in GSWA. 188 Several weeks later, the tribe filed a claim against the German government, seeking another $2 billion in compensation for the deaths of tens of thousands of Herero at the hands of German colonial forces. While the United States is not involved in the case on either the plaintiff or the defendant side, the U.S. courts still can claim jurisdiction under the Alien Tort Claims Act (ATCA) of 1789. The text of the ATCA is very short, stating only “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 189 The law, while on the books since 1789, was not used until recently. From 1980, it began to be utilized by human rights activists and lawyers who viewed ATCA as a way for victims of statesanctioned human rights abuses with no ties to the United States to get access to the American court system. 190 In a human rights context, the wide scope of ATCA, which covers both United States law and the “law of nations,” or international law, gives the United States’ courts jurisdiction to hear any cases in which victims of human rights abuses perpetrated by the state seek civil action or reparations from that state. 186

“Germany Admits Namibia Genocide,” BBC News, September 25, 2001. Accessed February 24, 2007. http://news.bbc.co.uk/2/hi/africa/3565938.stm. 187 Cooper 188 Sarkin, “Reparation for Past Wrongs:” 452. 189 Qtd. in “Alien Tort Claims Act,” Accessed March 22, 2007. Available from http://cyber.law.harvard.edu. 190 Cooper.

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The defining case in the use of ATCA for human rights violations is Filartiga v. Pena-Irala. In Filartiga, Dolly Filartiga, a Paraguayan citizen, brought civil action against Americo Norberto Pena-Irala, also a Paraguayan citizen.

She sought

compensation for Pena-Irala’s kidnapping and torturing her brother Joelito, and a New York federal court awarded her $10 million in damages. 191 Filartiga was the first case to make use of ATCA for human rights violations, and Filartiga’s victory was a defining moment in human rights litigation because it gave U.S. courts jurisdiction over cases of human rights abuse and granted significant reparations to the plaintiff. 192 Since Filartiga, several cases have had success under ATCA. In Doe v. Unocal, a group of Burmese villagers charged Unocal, an America oil company, with “assisting and encouraging the torture, murder and rape of Burmese villagers by government soldiers so that Unocal could build a gas pipeline.” 193 In 2002, Unocal was found to be responsible and had to compensate the villagers who brought the suit. 194 Other successful uses of ATCA include Sosa v. Alvarez-Machain, Tel-Oren v. Libyan-Arab Republic, Kadic v. Karadzic, and in re Estate of Ferdinand Marcos. 195 While some legal scholars question how useful ATCA will be in the future, 196 the successes of the past twenty years have begun to establish a substantial body of jurisprudence that will benefit future victims of human rights abuses.

ATCA and the Herero The Herero case against Germany and against two German corporations 197 has thus far not met with much success in the American court system. First, the German government asserted its right to not submit to U.S. jurisdiction as determined by the Act of State 191

Ibid. Sarkin, “Reparations:” 438, 440. 193 Daphne Eviatar, “A Big Win for Human Rights,” in The Nation, May 9, 2005. 194 Sarkin, “The Coming of Age of Claims,” 83. 195 Cooper. 196 In 2004, Anthony Sebok of the Brooklyn Law School wrote that he feared the Supreme Court would attempt to narrow the scope of ATCA in the coming years at the behest of the Bush Administration (Anthony Sebok, “Is the Alien Tort Claims Act a Powerful Human Rights Tool?” Accessed February 20, 2007. Available from http://www.cnn.com/2004/LAW/07/12/sebok.alien.tort.claims/.) The Bush Administration has been a vocal opponent of ATCA as a human rights tool, going so far as to urge the Supreme Court to eliminate ATCA for this purpose (Cooper.) 197 There were originally three corporations implicated by Herero claims, but the case against Terex was dropped when the company demonstrated that they had changed management since the time of the genocide. 192

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between Germany and the United States.198 The two corporations, Deutsche Bank (charged with financially supporting German activities in GSWA) and Woermann Lines (charged with both supporting German activities in the region, operating its own concentration camp, and utilizing Herero prisoners for forced manual labor) had the case “removed” to the District Court of the District of Columbia, where both cases were promptly dismissed based on issues of jurisdiction. 199 Deutsche Bank successfully claimed that since it did not operate in the District of Columbia, the Court had no jurisdiction to hear the case, and the case against Woermann Lines was dismissed based on personal jurisdiction. 200 The Herero unsuccessfully attempted to file companion suits in New York and appealed the decisions of the District Court of the District of Columbia, but the Court of Appeals upheld the previous rulings. 201 Thus, the Herero were never actually able to make their argument before a judge, and consequently, no decisions have been rendered in the case.

Real and Potential Outcomes of the Herero Case While the Herero cases have not met with success in the U.S. Court system, the fact remains that their case for reparations is a strong one, as the German colonizers were clearly in violation of several principles of the law of nations of the day. Past instances of the granting of reparations do set something of a precedent for the Herero case. While reparations have not often been granted for historical injustices through litigation, that does not diminish the importance of bringing such cases. Even when such cases seem impossible to win in a legal context, public opinion can have a dramatic effect on the actions of governments. For example, the Namibian government did not support the Herero effort against Germany for many years, claiming that the Herero people were not the only victims of the Germans, and thus any reparations paid by Germany should go to all of Namibia and not just to the members of one tribe. 202 However, recently, the Namibian government has offered its support to the movement; in February 2007, Namibian Prime Minister Nahas Angula stated that any Namibian who feels wronged by 198

Sarkin, “The Coming of Age,” 82. Cooper. 200 Ibid. 201 Ibid. 202 Sarkin, “Reparations,” 454. 199

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colonial actions has the right to seek justice, and he commended Herero efforts to call into account Germany’s responsibility to the descendents of their victims. 203 Also, while Germany and German corporations successfully avoided being slapped with reparations payments in court, they have been pressured by the Herero suit into offering a “Special Initiative,” which would pay N$200 million to those Namibian communities who suffered under German rule. 204 The initiative also includes provisions to initiate a dialogue for reconciliation between Namibia and Germany. 205 Undoubtedly, this initiative would not have even been offered by Germany if not for the pressure put on the government by the Herero legal action, but it does not go far enough. The Herero have dismissed the Special Initiative, stating that “that they were not consulted, that the deal does not equate to reparations and that the Herero people will continue to fight for comprehensive reparations for past injustices.” 206 Finally, in March 2007, several members of the Bundestag in Germany have put forward a motion asking the German government to “accept its ‘historical responsibility’ and to ‘acknowledge the right of the Hereros and Namas to reparations’ due to the genocide committed by the German Schutztruppe.” 207

While the motion will in all

actuality be rejected by the governing coalition, the fact that it has been put forward at all is an important step forward. The value of public opinion and awareness on this topic is immeasurable as such a motion would never have come about without the Herero’s pursuit of justice. If the Herero were to eventually win reparations from the German government or the corporations, it would be an extremely important case in the field of international human rights law. Such a precedent would have drastic implications around the world, as there are currently reparations movements going on all around the globe. In Japan, women forced into sexual slavery as “comfort women” during the Second World War are vocally seeking redress from the Japanese government, who as yet has not paid “official reparations” and has even gone so far as to deny that the women were even forced into 203

Brigitte Weidlich, “Government Supports Herero Reparation Demands,” in The Namibian, February 21, 2007. 204 Brigitte Weidlich, “German Reconciliation Drive Finally Starts,” in The Namibian, January 4, 2007. 205 Ibid. 206 “Transitional Justice Developments in Southern Africa: Namibia,” in African Transitional Justice Research Network Newsletter, March 2007. 207 Henning Hintze, “German Parliament to Discuss Genocide,” in The Namibian, March 8, 2007.

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service. 208 In the United States, the descendents of African slaves have been seeking reparations for several years, to no avail. 209 The implications of a Herero win on such movements would be immense, and such a decision would completely change the landscape of reparations theory. Some legal scholars questions whether or not it is feasible for the Herero to continue their pursuit of Germany, Deutsche Bank, and Woermann Lines. Allan Cooper argues that it would be easier for the Herero to win a case against corporations who operated in Namibia during South Africa’s occupation of the country in the mid-twentieth century. He also argues that Namibia could quite feasibly successfully bring a case against South Africa in the International Court of Justice for damages suffered under South African occupation. 210 However, he is not optimistic about the Herero’s chances for success against Germany and suggests that perhaps it would be better for “both parties to seek a negotiated compromise outside a court room.” 211 In the end, the U.S. Courts have not been sympathetic to Herero claims; however, the Herero have yet to have a chance to actually present their case before the court, and their case is a strong one. While the Germans have the advantage of status quo, the Herero have on their side clear historical records of atrocities that were unquestionably in violation of international law at the time, as well as the precedent set by past reparations payments. Additionally, the Herero have a potentially powerful tool that has been to this point underutilized: public awareness and pressure from the German people on their government. With these weapons, the Herero have slowly made strides – the 2004 apology from German Minister Heidemarie Wieczorek-Zeul was an important step, and the 2007 Bundestag motion for reparations for the Herero has furthered the case even more. While it is by no means certain that reparations will ever be paid by Germany to the Herero, the fact remains that reparations should be paid.

208

Norimitsu Onishi, “Japan Stands by Declaration on ‘Comfort Women,’” in The New York Times, March 16, 2007. Accessed March 16, 2007. Available from http://www.nytimes.com/2007/03/16/world/asia/16cndjapan.html?ex=1331697600&en=30277f921905300d&ei=5090&partner=rssuserland&emc=rss. 209 “Illinois: Court Rejects Slave Reparation Claims,” in The New York Times, December 14. 2006. Accessed March 16, 2007. Available from http://www.nytimes.com/2006/12/14/us/14brfsSLAVE.html?ei=5070&en=1940acc5d5d496d9&ex=1177300800&pagewanted=all. 210 Cooper. 211 Ibid.

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