Hush Money Instead of Compensation (II)
Herero and Nama organizations are preparing a lawsuit against an agreement in which Berlin is seeking to avoid full recognition and payment of reparations for the genocide carried out on their ancestors.
WINDHOEK/BERLIN (Own report) – In Namibia, Herero and Nama organizations are preparing a lawsuit contesting an agreement between Berlin and Windhoek on resolving the conflict over compensation for the genocide perpetrated from 1904 to 1908. The so-called Reconciliation Agreement had been initialed in May 2021 by both governments, but never signed by the Namibian side, because of strong protest from the descendants of the victims. On the one hand, they are insisting that Berlin fully recognize the genocide. Berlin has consistently refused to do so. The German government refuses to even apply the 1864 Geneva Convention or the 1899 Hague Convention on Land Warfare – among others, because these had applied, according to the legal standards at the time, only to “civilized” populations, not to populations in African colonies. On the other hand, the organization of the Herero and Nama are insisting on formal reparations for the genocide. Germany is only willing to accord a voluntary payment in approximately the amount of ordinary development aid. The “Reconciliation Agreement” will now to be reviewed in a Namibian court.
Bide Your Time and Cheat
Since the 1990s, the Herero and Nama have been struggling for recognition of the genocide perpetrated against their ancestors and to be paid reparations for that mass crime from the legal heirs of the culprits – the Federal Republic of Germany. For a long time, they had relied on persuasion and negotiations. Later they tried fighting it in court – filing a lawsuit in courts in the United States. The German government has fended off their demands using a mixture of obstinate biding its time and undignified cheating. In 2004, Germany’s Minister for Development, at the time, Heidemarie Wieczorek-Zeul (SPD) sought to take the wind out of the sails of the Herero and Nama by asking forgiveness “in the spirit of the ‘Lord’s Prayer’ that we share.” This was merely an attempt at creating the impression of sincere remorse. Religious recognition carries no legal consequences. In 2017, Berlin’s Senator of Justice, Dirk Behrendt (Greens), who, at the time, oversaw procedural questions, refused to transmit the subpoena to a trial in New York to the German government. He claimed that states may not “be called to answer in foreign courts on charges deriving from their sovereign activities, such as the actions of their soldiers.” In March 2019, the US court actually ruled in favor of Germany’s “sovereign immunity.”
The Wedge Agreement
Since some time, the German government has been trying to put an end to the Herero and Nama demands, that it finds bothersome. For this purpose, in 2015, it opened negotiations with the Namibian government that culminated in a so-called Reconciliation Agreement in 2021. During the negotiations, Berlin was able to drive a wedge into the Namibian side. While the talks were carried out with the participation of government representatives and some Herero and Nama individuals, the two associations representing the two populations of the descendants of the victims – the Ovaherero Traditional Authority (OTA) and the Nama Traditional Leaders Association (NTLA) – were excluded. Accordingly, the final agreement on the “Reconciliation Agreement” provoked hefty protests. That was “to be expected,” Ruprecht Polenz, head of the German negotiating team is quoted to have said in September 2021. Jürgen Zimmerer, who does research at the University of Hamburg on German colonial history and its effects, commented at the time, the agreement is “not a reconciliation, but a wedge agreement.” Following the agreement, Berlin will leave it up to “the Namibian government” to repress resistance to it.
The resistance continues to this day, because the alleged Reconciliation Agreement neither fully recognizes the genocide nor is there actually a promise of reparations. This is based on Germany’s allegation that the mass murder carried out from 1904 to 1908 on Hereros and Nama must, “from today’s perspective,” certainly be classified as genocide. However, historically, and legally, this is not the case. The German legal standpoint holds that the 1948 Genocide Convention may not be applied retroactively. The Herero and Nama cannot even refer to the Geneva Convention of 1864 and the Haag Convention on Land Warfare of 1899, because their ancestors were not among the contractual states and the mass murder carried out on them was not during a regular war, in the sense defined in the Land Warfare Convention. Admittedly, all this also applies to the genocide carried out on the Armenians during the Ottoman Empire, which Germany, meanwhile, has, however, recognized. This is why, in defense of Germany’s legal position, occasionally reference is made “to the predominating opinion” meaning that, at the beginning of the 20th Century, the legal conventions only applied to the “civilized” populations – for example the Christian Armenians – but not the populations of African colonies.
Development Aid instead of Reparations
Recourse to colonial racism is being met with indignation by the Herero and Nama today, as well as the fact that the German government – parting from the premise that there was no genocide that was not subject to a statute of limitations – is unwilling to pay reparations, but merely dangles the prospect of making a voluntary payment. This is said to range from around what has been donated as development aid, in order to impress, however, not with the normal annual amount, but with the amount that would be received over the next 30 years – €1.1 billion. That money will be explicitly earmarked for the purposes of the usual development aid – education, the health system and infrastructure.
Immediately following the announcement of the “reconciliation agreement” the OTA and the NTLA sharply protested. In a statement already back in May 2021, they declared that the agreement reached between Berlin and Windhoek is merely “a public relations coup by Germany and an act of betrayal by the Namibian government.” When, on September 21, 2021, Namibia’s National Assembly opened the debate not only the opposition parties and members of the governing party, SWAPO, spoke out against the agreement, there were also demonstrations in front of the parliamentary building. On December 2, 2021, the debate was closed without having reached a consensus. Due to the strong opposition, Namibia’s government has not yet signed the agreement. In late October, the government asked Germany to renegotiate, to possibly be able to reach an agreement that takes the OTA and NTLA’s demands into consideration. Until now, the German government has categorically refused. Because of Germany’s intransigence on the matter, OTA and NTLA have begun preparing a lawsuit in Namibia. It is targeting the “Reconciliation Agreement,” which – according to the suit – is in violation of Namibia’s constitution as well as of Customary International Law.
Not least of all, the actions of the Green Party have brought disillusionment to the OTA and the NTLA. After the Greens left the government coalition, in the aftermath of the 2005 elections, they had always ostentatiously supported the Herero and Nama. Still in September 2021, the Green parliamentarian Ottmar von Holz demanded that the so-called Reconciliation Agreement be renegotiated “as quickly as possible with the participation of all victim groups.” Since the Greens re-entered the government, this has not been mentioned. As Sima Luipert, of the NTLA reported, when Foreign Minister Annalena Baerbock assumed office “a letter was sent to her, congratulating her to her election victory and politely asking for an exchange.” Baerbock, however, refused everything. “The Greens used us for their election campaign, wanting to bag the votes of progressive electors,” notes Luipert dryly. “They lied to us and to their electorate.” “They should be ashamed of instrumentalizing us and our suffering.”
 Wieczorek-Zeul bittet um Vergebung. tagesschau.de 14.08.2004.
 See also Nicht zustellbar.
 Felicia Jaspert: Setback for the descendants of the Nama and Ovaherero indigenous peoples. voelkerrechtsblog.org 08.05.2019.
,  Paul Starzmann: Herero und Nama protestieren gegen Deutschland. tagesspiegel.de 22.09.2021.
 Außenminister Maas zum Abschluss der Verhandlungen mit Namibia. auswaertiges-amt.de 28.05.2021. See also Die Berliner Reparationsvereinbarung (II).
 See also Billiges Erinnern.
 See also Der deutsche Beitrag zum Genozid.
 Deutscher Bundestag, Wissenschaftliche Dienste: Der Aufstand der Volksgruppen der Herero und Nama in Deutsch-Südwestafrika (1904-1908). Völkerrechtliche Implikationen und haftungsrechtliche Konsequenzen. WE 2-3000-112/16. Berlin 2016.
 Charmaine Ngatjiheue: Ngavirue confirms ‘fruitful’ genocide talks. namibian.com.na 17.05.2021. See also Hush Money Instead of Reparations.
 Philip Littleton: Namibia asks Germany to negotiate genocide deal. enca.com 27.10.2022.
 Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Sevim Dağdelen, Ali Al-Dailami, Dr. Gregor Gysi, weiterer Abgeordneter und der Fraktion Die Linke. Deutscher Bundestag, Drucksache 20/3236. Berlin, 31.08.2022.
 Ulrike Wagener: „Nur weil wir Schwarz sind“. nd Der Tag 09.11.2022.
 Paul Starzmann: Herero und Nama protestieren gegen Deutschland. tagesspiegel.de 22.09.2021.
 Mohamed Amjahid: „Die deutsche Grausamkeit beginnt nicht mit dem Holocaust, sie gipfelt darin“. spiegel.de 22.06.2022.