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Excerpted from: Sidney Harring, German Reparations to the Herero Nation: an Assertion of Herero Nationhood in the Path of Namibian Development? , 104 West Virginia Law Review 393-497, 393-398, 401-410 (Winter 2002) (132 Footnotes Omitted)
German Chancellor Helmut Kohl probably expected a pleasant and uneventful visit to Namibia in September of 1995. Formerly the German colony of South West Africa, the new nation of Namibia is visibly proud of its German heritage, evident everywhere in its capital at Windhoek, in stoutly built brick and stone colonial buildings. Germany, in turn, is Namibia's largest provider of foreign aid and equally proud of its role in Namibian development. However, while Kohl was visiting a German community in Namibia, around three-hundred "members of the Herero tribe led by Paramount Chief Kuaima Riruako marched on the German embassy in Windhoek and handed in a petition for Kohl." As it turns out, the Herero wanted to meet Kohl during his visit to Namibia. However, Kohl refused and instead visited the coastal town of Swakopmund. The petition was a demand for reparations resulting from the near extermination of the Herero by the Germans during the Herero War of 1904-07. The war, although not well known in a world of far more deadly wars, was among the twentieth century's bloodiest colonial wars, killing at least sixty thousand of the eighty-thousand Herero and resulting in the German seizure of all Herero lands and cattle. As a result, Central Namibia was swept clean of black occupation, setting the stage for the creation of the European agricultural economy that prevails today.
Herero Paramount Chief Kuaimi Riruako demanded reparations of $600 million (US). After delivering the petition, Riruako stated, "We think we have a legitimate claim for reparations as a result of the war and genocide committed against the Hereros by the German army." The Herero Traditional Authority, he continued, was prepared to take its case to the United Nations if Bonn rejected the claim. And, in a surprising move, Chief Riruako, through the Chief Hosea Kutako Foundation, recently filed a lawsuit against three German companies in the Superior Court of the District of Columbia, asking for $2 billion (U.S.) in reparations, asserting the companies were in a "brutal alliance" with imperial Germany in the Herero War.
The Namibian government has opposed the Herero claim for reparations. Heavily dependant on German aid, and dominated by the rival Ovambo tribe, the South West Africa People's Organization (SWAPO), the ruling party, has taken the position that all Namibian tribes were victimized by colonial exploitation, and therefore, no group in particular should be singled out to receive reparation payments. But the Herero, now numbering about 125,000, and the leading opposition tribe, have persisted in pursuing their claim. It has served to define Herero identity within Namibia, setting the Herero people apart.
In a modern Africa, with many different development regimes competing, the Herero claim deserves careful analysis. A model of "reparations" has an obvious historical root in the colonization of Africa. In addition, a pattern of violent land seizures in Zimbabwe underscores the need for effective land reform programs that, in turn, are blocked throughout southern Africa by a lack of funds. German reparations would allow the Herero, still a cattle herding people, to repurchase a substantial portion of their "stolen" lands and return their cattle to their traditional range. Ironically, under the colonial law of conquest, the Herero cannot recover nor be compensated for their "stolen" lands because the German conquest of their lands provides a legal basis for German land ownership. But their claim for reparations for genocide is based on broader rights in international and natural law and therefore may provide a better chance for success.
The Herero did not "invent" their demand for reparations. Rather, it is derived entirely from their careful reading of modern German history. Germany is making reparations to both individual Jews and the State of Israel for acts of genocide inthe 1930s and 1940s, scarcely thirty years after the Herero War. The Herero ask an obvious question: what is the legal - or moral - distinction between German genocide directed at Jews and German genocide directed at Africans? Surely, in the modern world, a racial distinction cannot account for this difference in policy. Or is the distinction based on some meaningful difference between genocide in the Herero War and World War Two? As it was simply put by Mburumba Kerina, a Herero activist, "(T)he concerns of the Hereros must be seen in the same light as that of the Jewish people."
The Herero claim for reparations is directly grounded in the characterization of Germany's history as particularly violent and as a former racist imperialist and colonial power, with a history of acknowledging this violence by paying reparations. Indeed, there is evidence that the virulent racism that promoted the holocaust not only the characterized German colonization of Africa, but was also partially formed there: the Germans began experiments with sterilization in the name of the science of eugenics, the creation of a " master race," in German South West Africa at the turn of the century. Herero prisoners of war were the subjects of these experiments. Similarly, Germany's sudden and late entry into the colonial enterprise in Africa was prompted by its military victories in the Franco-Prussian War, prompting further expansion of German authority through military power. Consequently, the Herero seem to have a strong argument that they too deserve reparations from Germany. However, before one can completely understand the true nature of their claim for reparations, a closer look at the Herero War is necessary.
. . .
Like most colonial histories, the colonial history of Namibia is complex and still, from the standpoint of the black people who live there, largely unwritten. The Herero War, an exception to this history, has been the subject of a number of books, with scholars drawn to the unique character of German colonial violence. Although a number of meanings can be drawn from the war, the central outcome in terms of land law is clear: Germany terminated by conquest all Herero land rights in South West Africa, leaving the nation with no land at all. Herero lands were then "sold" to settlers - ninety percent of them German - on favorable terms, with long- term loans subsidized by the government. These farms are now the heart of Namibian agriculture, occupying a wide swath from Omaruru to Gobabis and the Botswana border, the entire country to the west, north, and east of Windhoek.
. . .
The census of 1911 gives the Herero population in South West Africa as 15,130, down from about 80,000 before the war. A few thousand additional Herero, including Chief Samuel Maharero, had sought refuge in western Bechuanaland (now Botswana). Perhaps a few hundred to a thousand more had fled to Kaokoland, a remote area beyond the police line but still in German South West Africa, and a few more escaped to Angola. Thus, at most 20,000 Herero survived the war, possibly no more than 17,000, leaving at least 60,000 to 63,000 dead - seventy-five to eighty percent of their pre-war population. Within Namibia, Herero cattle were all lost and their herding culture was decimated. These remaining Herero survived as refugees, living in absolute poverty in camps or near mission stations. High death rates continued in the postwar years, as the result of disease and starvation. Thus, the German act of genocide against the Herero was striking and deliberate, intended both to free their lands for white settlement and also to deter similar uprisings by other Native tribes in South West Africa.
III. THE LEGAL BASIS OF THE CLAIM FOR HERERO REPARATIONS
The Herero claim for reparations began within the context of the next ninety years of colonial history. Modern Namibia looks much the way the Germans left it in 1915, when German rule suddenly ended. After a brief period of British administration following the capture of South West Africa in World War One, the colony was turned over, under the provisions of a League of Nations class "c" mandate, to South African administration. The British plans were for a well-ordered agricultural colonial-settler state. German farmers were left on their lands, including most of the Herero lands, the agricultural heartland, with new, often very marginal, lands to the north and south opened up to Boer settlers. South West Africa became a rich agricultural land, heavily subsidized by the apartheid-era South African state.
The Herero, who joined the British forces in the invasion of South West Africa, began a cultural renaissance under the South Africans. By all sorts of means, including large-scale squatting and various sharecropping agreements with white farmers, they regained their cattle and re-occupied vast tracts of their former lands, albeit in the more remote and undeveloped regions. This history is remarkable, given the racist, and later apartheid-era policies of South Africa, but it sets the political stage for the position of the Herero in modern Namibia and for their claim for reparations.
This history is important because it structures the logic of Herero reparations. The underlying issue is the forcible deprivation of their lands which, in turn, means that there is no place to graze Herero cattle, the center of their culture. However, no direct reparation for land is likely because, historically, indigenous lands taken by European settler societies have rarely been returned. Although the Herero often talk about "land" in the context of reparations, the actual demand for economic reparations is based on genocide and on the merciless and systematic killing and starvation of the Herero during the 1904-07 war. This demand is grounded in the logic of reparations for Jews and other peoples victimized by the Germans before and in World War Two, analogizing the Herero War to German genocide against the Jews and not to other African and Asian colonial wars.
It would be both a futile and dishonorable discourse to venture into any kind of a comparative analysis of genocide - and such a discussion is irrelevant for purposes of the Herero position. Genocide is genocide: murdering an African tribe cannot be rotely compared to murdering a European people, or a European nation. Nothing that the Herero say in any way dismisses or diminishes the unique crimes that Germany committed against Jews. Modern international law of reparations is dominated by extensive Jewish claims for reparations against Germany and other countries, but this is not the limit of reparations claims. Even in the context of World War Two, reparations have been paid to others, including $1.2 billion to Americans of Japanese descent for their imprisonment and loss of their lands. Also reparations have been made in a parallel settlement to Japanese Canadians, and a case is pending against the Japanese for reparations for Korean "comfort women," forced into prostitution by the Japanese army. Other European claims, including that of the Romani people, raised by other peoples subjected to mass extermination in concentration camps, have failed. None of these claims for reparations compare to the Jewish holocaust, but their success, nevertheless, represents important advances in human rights law.
The Herero are very aware of these legally recognized reparation claims and base their claim accordingly. Mburumba Kerina, a Herero leader, commented on the forced sexual slavery of Herero women by Germans. Comparing this to the case of the Japanese "comfort women," Kerina explained, probably with more than a touch of irony: "Hey, that's my grandmother - a comfort woman. . . If the Japanese could pay for that, the Germans could." This careful attention to the existing international law of reparations distinguishes the Herero claim for reparations. The narrow discussion is a more general inquiry into the appropriateness of reparations as a political and legal remedy to the damage to various peoples caused by twentieth century colonial wars. If these situations are reasonably analogous to existing reparations claims, to dismiss them out of hand must turn on considerations that can only be called racist. If these claims are well grounded legally, then broader policy issues may be implicated and must be heard.
There is no consistent legal basis for any of the modern reparations regimes. The concept of reparations is rooted in natural law, the common law, and international law; it is an equitable principle that the beneficiary of an ill-gotten gain should make restitution, both as an act of contrition and good will, but also simply to restore the victim to some part of their previous life. As a political matter when related to the specific context of war reparations, it is generally "winners" who demand restitution from "losers." The original post World War Two German reparations law, Law Number 59 on Restitution of Property Stolen in the Course of the Aryanization of the Economy, was adopted by the U.S. military government and imposed on Germany in November, 1947. However, within the modern world, liberal democracies have used the language of reparations in making voluntary payments through various statutory regimes to their own indigenous or minority populations. American and Canadian payments to Japanese citizens as reparations for wartime injustice are the most extensive example, although many payments to indigenous peoples are broadly of this type. Although these Japanese reparation claims included complex litigation strategies, these ultimately failed and the final reparations settlements were political, voted by the U.S. Congress and the Canadian Parliament.
The Jewish claims against Germany also avoided litigation and began with ally-ordered regimes to return stolen Jewish property but proceeded to a formal claim, filed on behalf of the State of Israel, as the lawful representative of the Jewish people, with the German government. A series of negotiations followed, with a final agreement resulting through political processes, and voted on by the German Parliament. The original reparations legislation has been revised and expanded several times, with substantial opposition within Germany.
The legal basis of Herero reparations is rooted in both of these traditions, although it lacks support from the Namibian government. The Herero reparations claim has never been formally acted on by the German government, but it was dismissed out of hand in a speech by Roman Herzog, President of Germany. In a 1998 trip to Namibia, Herzog was quoted as saying that "no international legislation existed at the time under which ethnic minorities could get reparations." Herero activist Mberumba Kerina countered by claiming that the Hague Convention of 1899 outlawed "reprisals against civilians on the losing side." In the same exchange, Herzog dismissed the idea of an apology because too much time had passed to make sense - and also fired his translator for misinterpreting his statements.
To the extent that this exchange begins to structure the Herero case and the German response to it, several important issues emerge leaving an unclear legal basis for their reparations claim. President Herzog describes the legal basis for reparations differently than do the Herero. Herzog put his response in the language of colonialism, with his clear historical reference to the colonial domination of ethnic minorities serving as a basis for reparations as supported by no "international legislation at the time." Thus, for Herzog, colonialism was "legal" in 1905 under international legislation, therefore ending the discussion of Herero reparations.
This analysis, however, is not the basis of the Herero claim. Rather, the Herero locate their claim in terms of the international laws of war as defined in the Second Hague Convention of 1899, a convention at which the Germans were represented and which binds the European powers as they go about their "business" of civilized warfare, that is warfare between signatory nations. Unless Germany seeks to argue, in the twenty-first century, that there was, after 1899, one set of rules for European nations conducting wars with each other and a completely different set for those same nations conducting "colonial" wars, or even more bluntly put, wars against "ethnic" peoples, it is in an untenable moral position.
The Hague Convention on the Laws and Customs of War by Land was signed on July 29, 1899 and took effect on September 4, 1900. Intended to regulate modern warfare, the Convention contains a number of provisions that, in their plain language, were apparently violated by Germany in the Herero War. Article 4 requires that "prisoners of war in the power of the hostile government . . . must be honorably treated." Article 7 provides that "the government into whose hands prisoners of war have fallen is bound to maintain them." Article 23 states that "it is especially prohibited to kill or wound treacherously individuals belonging to the hostile nation or army; to declare that no quarter will be given; to destroy or seize the enemies property, unless such destruction or seizure be imperatively demanded by the necessity of war." Finally, Article 46 states that "family honors and rights, individual lives and private property . . . must be respected."
It would follow that a systemic violation of that Convention, for example, in an order to kill all the Herero and starve their women and children, clearly a declaration that "no quarter will be given," would be legally actionable under whatever regime of international enforcement the Hague Convention recognizes, but for the fact that the Herero were not represented at the Hague, and could not, therefore, sign the convention. Thus, the issue is not the literal application of the Hague Convention to the Herero War. Rather, it is the Convention as a statement of international customary law. Importantly for the Herero, their claim can be analagized to Jewish and Japanese reparation claims, which are also not based on the Hague Convention, but on more general principles of human rights.
This leaves unanswered President Herzog's defense: that colonialism and, apparently, colonial genocide, was legal in 1905. Although his position may literally be true, that, again, is not the issue. The political and legal reasons for not opening up four hundred years of colonialism to broad claims of reparations are clear, regardless of the justice of the claims. Such a claim parallels other equally broad based claims, most prominently in the growing discussion of reparations for African slavery. There is a substantial literature - including in law reviews - on these legal arguments. Representative John Conyers has introduced a resolution into the House of Representatives requiring the exploration of the issue of reparations for slavery in the United States. A Pan-African Congress on Reparations was held in Nigeria in 1993 and claims of reparations underscore some of the discourse on the rebuilding of African economies. Although these efforts have most often been dismissed as politically impossible, existing legal doctrines of equity and natural law, as well as the thirteenth and fourteenth amendments of the U.S. Constitution, lend both moral and legal credibility to the case for black reparations for both slavery, primarily involving the tens of millions of overseas blacks, and for the devastation of colonialism, primarily involving blacks still living on the African continent.
However, it is important to see that the Herero claim is much more narrowly framed than the above claims are. While in the long course of human history there has clearly and unfortunately been an equally long history of genocide, the law of reparations is much more limited. Modern reparations claims, modeled after the Jewish claims against Germany, are most often very specific. The Herero are aware of this, explaining the precise basis for their claim as acts of genocide committed against their nation by the German army, acting under specific orders in carrying out German colonial policy in the Herero War of 1904-07. Thus, the Herero nation is the injured party, acting on behalf of the 60,000 Herero dead in bringing the reparations claim. Although these people are clearly the grandmothers and grandfathers of every living Herero person, it is not their families who are making the claim. This formulation is deliberately designed to be broadly analogous to the successful war reparations claims resulting from German genocide in World War Two. The Herero nation is asking for reparations from roughly the same position as the State of Israel. Although, a "tribe" is not a "state," modern tribes represent their people in world forums, and nothing in the international law of reparations requires that the aggrieved people be represented by a state.
This has two equally precise legal purposes. No legal claim for reparations is likely to be entertained unless it is possible to set damages. The "costs" of colonialism and slavery over four hundred years are incalculable, and this is some barrier to these claims. But courts, in tort cases, set the price of particular human lives every day. The United States paid $1.2 billion to twenty thousand Americans of Japanese ancestry for the loss of their property in World War Two. The Herero have asked for $600 million (US) - $10,000 for each human victim; nothing for their land, nothing for their cattle. It is likely to be legally difficult, even in a culture with an elaborate oral history, to prove who among the Herero was killed, how, and where in the South West Africa of a hundred years ago. The nature of the Herero claim, as a nation, however, renders this unnecessary.
One final distinction between the Herero claim and the World War Two era claims also suggests itself: the Herero claim is at least thirty years older. Common sense suggests that there must be some time limit on reparations claims, although no law absolutely states what this might be. The Herero claim is based on a twentieth century act of genocide and grounded in similar claims arising from other twentieth century wars. Modern South Africa permits native claims for restitution of land back to the Native Land Act of 1913, a period roughly the same as the Herero claim. Moreover, the apartheid-era policies of South Africa effectively blocked raising a reparations claim until independence in 1990, and the Herero raised their claim almost immediately thereafter. The United States and Canada, recognizing the legal difficulties Indian nations had in the nineteenth and most of the twentieth century in bringing land claims, have not limited the time frame for Native American land restitution claims, and one claim dating from 1795 is still being litigated. For policy reasons, it makes no sense to limit reparations to genocide to the actual victims: they are most often dead, and that is precisely the nature of the evil of genocide. And, for the same reasons, it also makes no sense to require that some modern state represent the interests of a victimized people.
But, there are no formal legal rules governing the law of reparations. The Herero have posed a political claim and are still awaiting political action on the part of the German government. The claim is not justiciable in Namibian courts. While there may ultimately be recourse to the World Court, the Herero are aware that reparations regimes operant in the world today are political and not legal. But, these political actions have a common history of being moved by extensive legal posturing, creating a powerful moral climate supporting reparations, and shaping public opinion. This has been the main thrust of the Herero effort at the present time; the dramatic confrontation of Chancellor Kohl with the Herero chiefs and Truppenspieler attracted good press around the world.
Note:. Anna Dean Carlson Professor of Sociology, School of Applied Social Sciences, West Virginia University; Visiting Professor of Law, West Virginia University; Professor of Law, City University of New York, College of Law. This Article is dedicated to my colleague, former dean, and professor, Carl Selinger, whose life and work reminds us that the broadest concerns about human rights should inform the study and practice of law.