Reparations for the Herero Genocide: Defining the limits of international litigation

Reparations for the Herero Genocide: Defining the limits of international litigation (Exerpt)

Allan D. Cooper

Reparations and apologies


TopAbstractThe ATCA of 1789The Herero claimsReparations and apologiesOn the other handNotesBibliography of books and... Following the atrocities of World War II, the international community accepted the principle of reparations to atone for crimes against humanity. The German government paid 90 billion marks to Israel to compensate for the Auschwitz gas chambers and has paid billions more for other crimes committed against Jews during the war.28 In 2001, a Holocaust slave labour settlement of $6 billion was established by the German government and a consortium of German and American companies. Japan recently apologized for its war crimes in Korea, including the use of women as sex slaves for Japanese troops, and paid reparations for these actions.29 The United States and Canada both compensated citizens of Japanese heritage for interning them in concentration camps during World War II.30 The United States also made monetary compensation to the Klamaths, Sioux, Seminoles, Chippewas and the Ottowas for actions taken against those indigenous nations during past centuries. In 1995, the State of Florida paid $2.1 million to more than 150 residents of the city of Rosewood for a massacre of African Americans that occurred in 1923.31 In March 2004, the US government agreed to pay a $25.5 million settlement for the looting by American soldiers of property belonging to Hungarian Jews during World War II.
The fact remains that reparation claims for past injustices are a rare feature among nation states. More common have been demands for apologies. Ukrainian-Canadians demanded remedies from Canada for detaining about 5,000 of their group during World War I. Italian Canadians sought an apology from Canada regarding their relocation and detention during World War II. In 1992, President Jacques Chirac acknowledged French complicity in deporting 76,000 Jews to German death camps. British Prime Minister Tony Blair apologized for the British role in the Irish potato famine of the nineteenth century. Benin and Ghana apologized for their roles in the trans-Atlantic slave trade. In March 2000, the Aetna Insurance Company apologized for issuing insurance policies to slaveholders on the lives of their slaves. Pope John Paul II accepted past responsibility for injustices committed by the Catholic Church. Southern Baptist officials apologized for the support for slavery during early American history. In 2000, the head of the US Bureau of Indian Affairs apologized for the agency’s role in the forced relocation, murder, and sterilization of millions of Native Americans during the 1800s. Queen Elizabeth apologized to the Maoris of New Zealand for British offences against that indigenous group. Likewise, Norway apologized to the indigenous Sami people. The prime minister of Denmark apologized for the Inuit people who were displaced from Greenland in the 1950s.32
There remain many demands for apologies that have gone unheeded. Most notably in 2003, President George W. Bush called the slave trade ‘one of the greatest crimes of history’, but refused to apologize for it.33
Nearly all of the incidents mentioned above that resulted in reparations came about through negotiations between the specific parties or as a result of legislative actions taken by the offending state. In each case, consideration was given to the notion of inter-temporality — that the responsibilities and obligations of the subject party were determined by the laws in force at the time the offense transpired. As noted previously, the German government argues that its genocidal actions against the Herero were not illegal at the time they were committed in 1904. Even the Hague Convention of 1899 that banned reprisals against civilians may not apply to the Herero genocide, since the Herero were not a signatory to the treaty. But Dinah Shelton suggests that if the Hague Convention is interpreted to represent principles of international law, then its rules should apply to the Herero genocide, since the Herero had not relinquished their full sovereignty as of 1904.34 A complicating factor is whether the one billion Deutsche marks provided to Namibia from Germany since independence represents a type of reparation that might diminish Herero claims for damages resulting from the 1904 genocide.
Shelton argues that the history of successful reparation claims suggests that they are more likely under the following conditions: (i) the perpetrators are identifiable and still living; (ii) the victims are mostly still alive or their immediate descendants present; and (iii) political pressure for reparations is strong and the victims enjoy cohesive support. These conditions do not exist for the claims being made by Hereros against the German government and its companies. None of the German officials or military personnel involved in the 1904 genocide is alive today. Nor are any of the Herero victims of the genocide alive. While descendants of the surviving Herero certainly are present in Namibia, the claim organized by the Chief Hosea Kutako Foundation does not specifically identify any of the plaintiffs as descendants of the genocide in the legal claims filed in US courts. Finally, the political pressure for securing reparations from the Germans for the Herero genocide is not strong; in fact, not even the Namibian government supports the claim.