Genocide in Namibia The German-Namibian “Reconciliation Agreement”

In June 2021, the German and Namibian governments announced the joint Reconciliation Agreement concerning German colonial crimes in what is now Namibia. It was the first time two states negotiated reparations for colonialism. Regrettably, this historic opportunity was not seized. Is the German government deliberately trying to shirk responsibility by interpreting the law in a specific way?

One of the main legal issues regarding reparations is whether the killing of large swathes of the Ovaherero and Nama population – first by extermination campaigns like those of General von Trotha, but also through the later establishment of concentration camps – can be classified as genocide. High-ranking human rights advocates like UN High Commissioner for Human Rights Michelle Bachelet have long since unequivocally qualified these colonial crimes as genocide. The wording of the Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide) of 9 December 1948 supports that ascription. Article 2 (excerpt) states that:

“In the present Convention, 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:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (…)”

The German Government, however, is semantically squirming between a symbolic “gesture of acknowledgment” and recognition of the “genocide from today’s perspective”. This latter term is closely connected with a specific interpretation of the legal principle of intertemporality. So is this a question of formal jurisprudence or a deliberate attempt to cling to colonial law in order to evade responsibility?  

“Genocide from Today’s Perspective”

The joint declaration states: “The German Government acknowledges that the abominable atrocities committed during periods of the colonial war culminated in events that, from today’s perspective, would be called genocide.” The text then goes on to talk only about “moral responsibility” and a “moral, historical and political obligation” to apologise. So what is this notion of “genocide from today's perspective” really about?  
 
Genocide is often regarded as “the crime of crimes” under international law to illustrate how genocide affects and moves humanity as a whole. An act, in other words, whose prosecution is in the “interests of justice” and “of concern to the international community as a whole”, as laid down at the latest in the Statute of the International Criminal Court (ICC), the central judicial body of international criminal justice. In the Statute and in proceedings before the ICC, in contrast to the aforementioned Genocide Convention, the focus is on individual criminal responsibility. In the context of reparations for German colonial crimes, however, it is not a matter of individual criminal responsibility, but of the responsibility of the German state, the former colonial power. The responsibility of a state stems from the confirmation of the existence of a “wrongful act” under international law. The act of genocide is one such “wrongful act” under international law. The legal consequences of such an offence are laid down by the International Law Commission (ILC): in its Draft Articles on the Responsibility of States for International Wrongful Acts (ARSIWA), and in particular in Articles 34 and following, which regulate compensation and reparations.
 
The German government is vehemently insisting on the notion of “genocide from today's perspective” in order to evade responsibility under international law. On a legal level, this argument clings to a specific interpretation of the legal principle of intertemporality.

The Intertemporality Principle

The principle of intertemporality is a doctrine developed in international jurisprudence, specifically by the 1928 Island of Palmas case, a territorial dispute between the Netherlands and the US. It occupies a central place in the set of fundamental principles of international law to this day. The doctrine consists of two principles. According to the first principle, roughly speaking, what counts is the law in effect at the time of the facts to be adjudicated, not the law in effect at the time of the dispute regarding the matter.
 
The second principle reflects the fact that international law is constantly evolving and changing. Majority opinion today might soon be overturned by minority opinion. And the interpretation of the law that was deemed minority opinion at the time may represent a valid understanding in the past, and one which can be taken up today. Changes in the law must also be taken into consideration in a present-day perspective.
 
Only recently, in 2019, the International Court of Justice (ICJ) reinforced the second principle by issuing an advisory opinion in the sovereignty dispute between the United Kingdom and Mauritius over the Chagos Archipelago, which the British had detached from the territory of Mauritius in 1965 before its independence. According to the ICJ, because the islanders’ right to self-determination was in the process of being established during this timeframe, the British government can’t formally claim that this right didn’t exist yet back then.

Eurocentric International Law of the Past?

The German government argues that the Ovaherero and Nama genocide doesn’t count as genocide in the legal sense because the law that was in effect at the time must be applied and there was no legal norm defining such a crime. So Germany cannot be held legally responsible under the aforementioned ARSIWA and has no obligation to pay damages or even apologize. This interpretation does not adequately take into account the second principle of intertemporality.

Recognition of Responsibility for Colonial Crimes over Time

The Critical Third World Approaches to International Law (TWAIL) play a key role in interpreting the second principle, especially in assessing colonial crimes like genocide. Much of this is obviously far more complex in terms of legal doctrine and theory than it can be discussed in this brief article.
 
A starting point for a decolonial approach to the question of genocide and principle of intertemporality is to ascertain whether there weren’t any existing regional (international) laws or treaties between colonialists and colonised at the time that had already established norms defining the constituent elements of genocide as illegal. Another decolonial approach could involve finding out whether there might not have been a prohibition norm which, under the humanisation of the laws of war and according to the so-called Martens Clause, did indeed qualify genocidal totalitarian extermination as unlawful.
 
Furthermore, we might bear in mind that international jurisprudence and the public at large even in the Western world in the 19th and 20thcenturies were far more critical of the legality of colonial campaigns than international jurisprudence in general and the history of international law would suggest. This must have implications in the present, whether in the legal assessment of genocide or in terms of what the forms of (legal) responsibility mean in the present. In any case, regarding the transition from the 19th to the 20th century and specifically the regional context of southern Africa, the fundamental question is why a European international law that was only just developing at the time should “suddenly” be applied universally with retroactive effect. Were the first principle of intertemporality to be rigorously applied, shouldn’t Ovaherero’s and Nama’ legal norms be used primarily?

Colonial Logic of International Legal Discourse

From a non-Eurocentric, decolonial perspective that includes an interpretation of the principle of intertemporality, the German government’s argument that it was only “genocide from today's perspective” is clearly untenable. The point here is also to unmask the colonial logic underlying the prevailing discourse about international law and international legal policy and to follow critical decolonial approaches to legal critique in order to draw some lessons for the future. Sometimes this will also entail the construction of knowledge to challenge an epistemic power through and in the applicable (international) law of the past and present with a view from the future in order to really do justice to the normative purpose of such a fundamental norm as the prohibition of genocide. Reparations would be a path worth taking together.
 
 

Literature

• ECCHR statement: The “Reconciliation Agreement” – A Lost Opportunity (2021).
• ECCHR brochure: Colonial Repercussions: Namibia 115 Years after the Genocide of the Ovaherero and Nama (2019).
• Steven Wheatly, “Revisiting the Doctrine of Intertemporal Law”, Oxford Journal of Legal Studies, Vol. 41, No. 2 (2021), 484–509.
• Matthias Goldmann, “‘Ich bin Ihr Freund und Kapitän.’ Die deutsch-namibische Entschädigungsfrage im Spiegel intertemporaler und interkultureller Völkerrechtskonzepte”, MPIL Research Paper No. 2020-29 (August 2020).
• Andreas von Arnauld, “How to Illegalize Past Injustice: Reinterpreting the Rules of Intertemporality”, MPIL Research Paper No. 2020-49 (December 2020). Forthcoming in: European Journal of International Law.
• Martti Koskeniemmi, “Geschichten des internationalen Rechts: der Umgang mit Eurozentrismus” in: Wolfgang Kaleck & Karina Theurer (eds.) Dekoloniale Rechtskritik und Rechtspraxis, Nomos, 2020, 121–158.
• Mieke van der Linden, The Acquisition of Africa: The Nature of International Law, Brill, 2016.
• Convention on the Prevention and Punishment of the Crime of Genocide, General Assembly Resolution 260 A (III) of 9 December 1948. Entry into force: 12 January 1951.
• Foreign Minister Heiko Maas on the conclusion of negotiations with Namibia, press release of 28 May 2021.
• ICJ, Advisory Opinion, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (25 Feb. 2019).