On 15 May 2021, Germany and Namibia agreed on a Joint Declaration addressing Germany’s colonial crimes after six years of negotiations. The Joint Declaration recognises the atrocities committed against the Ovaherero and Nama Indigenous communities during the 19th and 20th centuries as a genocide “from today’s perspective” and sets out Germany’s commitment to €1.1 billion of aid over the next thirty years. Germany will also apologise to the affected communities and Namibian people. Despite this progress, this article argues that the Joint Declaration is not enough as Germany fails to fully acknowledge and accept its responsibility, ensure adequate victim participation, and provide full reparations to the Ovaherero and Nama Indigenous communities. These failures have resulted in the Ovaherero Traditional Authority and Nama Traditional Leaders Association boycotting the Joint Declaration. Consequently, an important opportunity for reparations and meaningful reconciliation has been lost.
Protest of Ovaherero and Nama representatives and activists in Berlin, 16.10.16 | Photo: Joachim Zeller | Source: Flickr, licensed under creative commons
Background overview: Germany’s colonial crimes
Namibia was colonised by the German Empire in 1884 and remained under German colonial rule until 1915. South African forces took possession of the land until 1990 when Namibia gained independence. When German colonisers arrived, a white European superiority complex led to the systematic and forced transfer of wealth and appropriation of land and cattle under the pretext of ‘civilising’ the population.
Between 1904 and 1908, the German Schutztruppe (“protection force”) was ordered by General Lothar von Trotha to begin the extermination process of Ovaherero and Nama Indigenous communities to stop their uprisings against colonial rule. It is estimated that 65,000 of the 80,000 Ovaherero and 10,000 of the 20,000 Nama were exterminated. Alongside the Ovaherero and Nama, 10,000 Damara and San Indigenous communities were also exterminated. Nevertheless, the estimates vary, and some scholars put it as high as 100,000. Indigenous peoples were directly killed or starved while their land was taken, and wells poisoned. Concentration camps, such as Lüderitz, were built where men were forced to work to death while women and girls were systematically raped. White settlers ‘hunted’ San peoples as a form of leisure activity. The extent and nature of atrocities has led scholars and legal practitioners to classify the atrocities as the first genocide of the 20th century.
In 1948, the apartheid system was established in South Africa and simultaneously applied to Namibia. The effects of the racialised system are felt to this day, as the white minority controls most of Namibia’s wealth, land and resources, while 80% of the population, predominantly Black and Indigenous people, live in poverty. The complex system of cultural, economic, and social exclusion persists, and with it, Germany’s guilt.
Failure to Accept Responsibility
Germany has failed to accept full responsibility for the colonial crimes committed in Namibia, including its legal responsibility. Paragraph 11 of the Joint Declaration states that Germany has a moral responsibility regarding the colonisation of Namibia and that Germany accepts “a moral, historical, and political obligation to apologise” for the genocide of the Ovaherero and Nama peoples. Indeed, Germany has a moral responsibility to remember, commemorate and educate its youth about the genocide of Ovaherero and Nama Indigenous communities under its colonial rule. But framing the atrocities as merely a political or moral question does not satisfy Germany’s obligation to condemn the violation of jus cogens norms and grave breaches of international law. By recognising its responsibility only in terms of morality, Germany is denying its legal obligations by denying the right of victims to submit legal claims. As confirmed by the European Court of Human Rights in the case Janowiec and others v Russia, denying information and the ability to submit legal claims to victims and victims’ families amounts to degrading and inhumane treatment, thereby violating Article 3 of the Convention on the prohibition of torture. In the same case, the European Court confirmed that the Convention can be retroactively applied if the crimes amount to a “humanitarian exception” because they violated the underlying values of the Convention. Thus, denying the legal claim in the present for grave violations of human rights that have occurred in the past, even before the adoption of the Convention, amounts to a violation of victims’ rights. Moreover, Germany had the possibility to pioneer a new era of accountability by recognising the crime of colonialism and subsequently address the structural racism and continuous exclusion arising from it. Yet, that possibility was missed.
Moreover, Germany recognising the atrocities against Ovaherero and Nama Indigenous communities as a genocide “from today’s perspective” further reproduces colonial power structures. By including these words, Germany relies on the doctrine of intertemporality, which implies that the legal question must be assessed on the basis of the law applicable at that time. From this doctrine, it follows that current international law does not protect the then colonised and acts committed by the colonial powers are in fact justified in the light of historical legal standards. Thus, legally no genocide was committed, and no reparations are due. But this legal reasoning is inadequate to address colonial crimes and further reproduces colonial power dynamics because it perpetuates the exclusion of the suffering of non-Europeans and justifies the actions of the colonial powers. Additionally, the doctrine of intertemporality is subject to exception in German courts, specifically in relation to the Nazi-era discriminatory laws and East Germany’s laws. Thus, it is worth questioning why, in Germany’s view, the genocide of Ovaherero and Nama Indigenous communities does not classify for exception under this legal doctrine when the Nazi-era and East Germany’s laws do.
No Adequate Participation
In the negotiation of the Joint Declaration Germany did not fulfil the rights of Indigenous communities to adequate participation. As per the United Nations Declaration on the Rights of Indigenous Peoples, States shall consult with the Indigenous communities or their representative to ensure free, prior and informed consent in all matters affecting them. The right to the representative of one’s own choice has also been enshrined in article 25 of the International Covenant on Civil and Political Rights and article 5 of the Convention on the Elimination of All Forms of Racial Discrimination. These rights are also considered customary international law. The right to adequate participation extends to the negotiations of the agreements.
Since the beginning of negotiations, Germany insisted on state-to-state negotiations, claiming that the sovereignty of Namibia should not be violated. Although the sovereignty argument might hold, Germany should have attempted to include various groups in the negotiation process. Moreover, state-to-state negotiations are inadequate because of the persistent racial inequalities in post-colonial Namibia, where the white minority dominates, and the Indigenous peoples are marginalised. By failing to ensure adequate representation of the historically oppressed Ovaherero and Nama Indigenous communities, the German Government has reproduced colonial power dynamics. During the negotiations, Ovaherero and Nama leaders asked for direct talks with the German Government, but their requests were rejected as the Namibian Government was purported to represent their views. Having seen the outcome of the Joint Declaration, many Indigenous communities feel betrayed by the Namibian Government as it failed to secure full recognition, apology and reparations. Moreover, Germany insisted on the secrecy of the negotiation process, which has left few opportunities for the affected communities and civil society organisations to monitor the negotiation process.
The lack of adequate participation has been criticised by numerous UN bodies. The Working Group on the Rights of People of African Descent in 2017 noted that Germany has failed to meaningfully consult with the representatives of the Indigenous communities and urged the German Government to initiate consultations. Similarly, the Human Rights Council Working Group on the Universal Periodic Review in 2018 stated that Germany should ensure the representation of Ovaherero and Nama Indigenous communities in the negotiation process. Meaningful reconciliation can hardly happen without the involvement of victims.
Failure to Fulfil the Right to Reparations
When addressing gross human rights violations, reparations are a crucial mechanism as they provide direct recognition to victims as victims and as rights holders. The right to reparations and remedy is firmly grounded in international human rights law and is a duty of the State, as enshrined in article 2 of the International Covenant on Civil and Political Rights, article 8 of the Universal Declaration of Human Rights, article 14 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, inter alia. In 2005, the UN General Assembly adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, signalling the consensus of the international community on the importance of the right to reparations.
Despite these important legal standards, the word “reparation” is not used in the Joint Declaration, but instead, phrases such as “healing the wounds” or the “will to reconcile” appear. This wording allows Germany to shape the discourse in terms of morality instead of legal obligations. As noted by the former Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-Recurrence Pablo de Grieff, reparation programmes that do not acknowledge legal responsibility, as is the case with the Joint Declaration, do not, in fact, provide reparations but simply distribute resources or benefits. Indeed, to be effective and meaningful, reparations must be accompanied by an official acknowledgement of responsibility and be linked to other transitional justice mechanisms, such as truth-seeking. This is essential as reparations in the form of compensation without the official acknowledgement of responsibility can be perceived as “blood money” or buying off the victims.
Furthermore, the Joint Declaration states that Germany will contribute €1.1 billion of aid over the next thirty years. The majority of this aid is intended for the development program support of victims’ descendants, while €50 million is dedicated to projects related to reconciliation and remembrance. With this Joint Declaration, all further financial issues related to the past are to be settled. However, there are several issues with this approach. Firstly, Germany strategically uses the term “development aid” as it indicates the willingness to help and support the development of Namibia and affected communities, as opposed to the term “reparation'', which would indicate that Germany owes to the affected Indigenous communities. Pablo de Greiff argues that development programmes are not reparations as they do not specifically target victims due to violations of their rights but aim to achieve broader economic goals. Secondly, it is unclear how these development programmes will be implemented and how the affected communities will be consulted. Civil society groups are fearing that these projects will not benefit the most victimised communities because of their lack of involvement in the negotiations and widespread corruption rates within the Namibian Government. The decision of the Ovaherero Traditional Authority and Nama Traditional Leaders Association to boycott the Joint Declaration poses clear challenges for the implementation. Thirdly, the Joint Declaration makes no reference to the Ovaherero Indigenous communities residing in Botswana and South Africa due to their displacement during colonial rule. The failure to consider the diaspora indicates a very narrow historical understanding of the actions and circumstances surrounding the displacement on the part of the German Government.
Lastly, public apologies that recognise the inflicted harm and acknowledge the suffering caused are considered satisfaction as a form of reparation. Paragraph 13 of the Joint Declaration states that Germany will apologise to the descendants of the victims, which is highly important. Yet, the succeeding paragraph states that “The Namibian Government and people accept Germany’s apology”. It is unclear how there can be such confidence the apology will be accepted given that many Indigenous communities did not adequately participate in the negotiations and that the German President is scheduled to ask the communities for forgiveness in person later this year.
Conclusion: Germany Must Do Better
The official recognition of the genocide of Ovaherero and Nama Indigenous communities is the first commendable step towards achieving recognition for the colonial crimes and providing some acknowledgement to the affected communities. However, Germany has failed to fulfil its legal obligations and victims’ right to remedy, and to ensure adequate participation during the negotiations.
Although the Joint Declaration is unlikely to be amended and, therefore, the critiques elaborated here are unlikely to be addressed, Germany must do better in the future in three specific areas. Firstly, Indigenous communities and the Namibian Government have insisted for years on the return of Ovaherero and Nama human remains used for ‘proving’ European racial superiority, but German hospitals and universities started returning them only in 2011. Given the importance of burial ceremonies and customs to the Ovaherero and Nama Indigenous communities, it is disappointing to see that the Joint Declaration failed to address the return of human remains. Thus, it is upon the German Government to ensure that all human remains are delivered to the affected communities in the near future. Secondly, Germany must ensure that the 'development projects' target and address the needs of the most marginalised communities and descendants of the victims. Thirdly, Germany should commemorate the victims of the Ovaherero and Nama genocide in Germany and ensure the inclusion of its colonial history in its education curriculum so that the genocide of Ovaherero and Nama Indigenous communities is never forgotten.
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