African Affairs Advance Access originally published online on August 3, 2006
African Affairs 2007 106(422):113-126; doi:10.1093/afraf/adl005
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Reparations for the Herero Genocide: Defining the limits of international litigation
Allan D. Cooper is a professor of political science at Otterbein College, Ohio (E-mail: acooper{at}otterbein.edu).
The Herero were the first ethnic group to be subjected to genocide in the twentieth century. In 2001, the Herero became the first ethnic group to seek reparations for colonial policies that fit the definition of genocide. The Herero are the latest plaintiff to use the procedures of the Alien Torts Claim Act of 1789 to seek reparations in a US federal court for war crimes committed overseas. This article analyzes the legal arguments by Hereros against Germany within the context of current understandings of international law and identifies the challenges that lie ahead for this claim. The article also explores the implications of the Herero claim for other ethnic groups victimized by colonization.
1. See J. Silvester and J. Gewald, Words Cannot be Found: German colonial rule in Namibia: An annotated reprint of the 1918 Blue Book (Brill Academic Publishers, Leiden, 2003); J. Gewald, Herero Heroes: A socio-political history of the Herero of Namibia 1890–1923 (James Currey, Oxford, 1999); H. Bley, South-West Africa under German Rule 1894–1914 (Heinemann, London, 1971); J. M. Bridgman, The Revolt of the Hereros (University of California Press, Berkeley, 1981); H. Drechsler, Let us Die Fighting: The struggle of the Herero and Nama against German imperialism 1884–1915 (Zed Press, London, 1980); L.H. Gann and P. Duignan, The Rulers of German Africa 1884–1914 (Stanford University Press, Stanford, 1977); P. Katjavivi, A History of Resistance in Namibia (James Currey, London, 1988).
2. Quoted in Gewald, Herero Heroes, p. 171.
5. See S. Harring, ‘German reparations to the Herero nation: An assertion of Herero nationhood in the path of Namibian development’, West Virginia Law Review 104 (2002), pp. 397–98.
6. Brigitte Lau argued that the Herero were not victims of genocide, but Tilman Dedering effectively countered this argument. See B. Lau, ‘Uncertain certainties: The Herero-German War of 1904’, Mibagus, 2 (1989), pp.4–5, 8; T. Dedering, ‘The German-Herero War of 1904: Revisionism of genocide or imaginary historiography?’ Journal of Southern African Studies 19, 1 (1993), pp. 80–88.
7. N. Nashandi, "Acting Permanent Secretary, government of Namibia, Chief Riruako’s claims devoid of truth", 1 November 2000, available at <http://www. grnnet.gov.na/news/archive/2000/nov2000/chief_riruako.htm> (13 April 2006).
8. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984).
9. In re Estate of Ferdinand Marcos, 25 F.3d 1467 (9th Cir. 1994).
10. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).
11. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
12. Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996).
13. Wiwa v. Royal Dutch Petroleum Company, 225 F.3d 88 (2d Cir. 2000).
14. See M. Hamblett, ‘Businesses win end to multiple apartheid suits’, New York Law Journal, 1 December 2004 <http://www.law.com/jsp/article.jsp?id=1101738482130> (31 May 2006).
An appeal to this ruling is currently pending.
15. Sosa v. Alvarez-Machain (03–339) 331 F.3d 604 (2004).
16. For a challenge to this interpretation see A. J. Sebok, "The Alien Tort Claims Act: How powerful a human rights weapon is it?" <http://www.writ.news.findlaw.com> (31 May 2006). Despite this setback to the George W. Bush administration, the Supreme Court dismissed cases brought against Guantanamo and Muslim detainees using ATCA. The court asserted that US government officials possessed sovereign immunity. See Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y. 27 September 2005); Khalid v. Bush, 355 F. Supp. 2d 311 (D.C.D.C. 2005); In re: Guantanamo Bay Detainee Cases, 355 F. Supp. 2d 443 (D.C.D.C. 2005).
17. Jones v. The Ministry of the Interior of Saudi Arabia & Lt. Col. Abdul Aziz and Secretary of State for Constitutional Affairs, The Redress Trust (intervenors) and Mitchell, Walker and Sampson v. Ibrahim al-Dali and Others. Decision of the Court of Appeal, 28 October 2004. Neutral Citation Number: [2004] EWCA Civ 1394. Case Numbers: A2 2003/2155 & A2 2004/0489.
18. See "Germany admits Namibian genocide", BBC News World Edition, 14 August 2004, available at <http://www.news.bbc.co.uk> (31 May 2006).
19. See Allan D. Cooper, Ovambo Politics in the Twentieth Century (University Press of America, Lanham, 2001), p. 56.
22. The new democratic government of South Africa may not be excused for the war crimes committed by the apartheid regime it replaced. The International Court of Justice ruled in Bosnia and Herzegovina v. Yugoslavia (2003) that the Federal Republic of Yugoslavia inherited the rights and responsibilities of the former Socialist Federal Republic of Yugoslavia, including the latter’s genocide against Bosnians.
23. See letter from E. Ahrens, ‘As for the San and Damara genocide Mr Matjila’ in The Namibian (12 March 2004). Ahrens exclaims: ‘Once the Herero have their money, we will support the San and the Bergdama with their claims against the Herero...The Herero must start to act like Namibians and stop thinking along tribalist lines’.
24. ‘The tribe Germany wants to forget’, New African (March 2000). Riruako repeated this claim at a news conference in August 2004; see "After German apology, Namibia’s Hereros want a Marshall Plan" <http://www.turkishpress.com> (19 August 2004).
25. Quoted in C. Maletsky, ‘Hereros up the ante in reparations drives’, The Namibian, 5 September 2001.
26. C. Maletsy, ‘Namibia: Hereros still waiting for court date’, The Namibian, 21 May 2003.
27. The New York federal case is still pending. In that case, Woermann argued that there was no jurisdiction over it because it did no business in New York. Woermann did acknowledge that it did business in New Jersey. As a result, the Herero filed a new action against Woermann in US District Court in New Jersey. That action also is pending. Representing the Herero People’s Reparation Corporation is Philip M. Musolino of Musolino and Dessel in Washington, D.C. Mr Musolino specializes in international law with a focus on East and Southern Africa. He also represents over 1,000 Kenyan citizens for losses suffered as a result of Al Qaida’s bombing of the Nairobi embassy in 1998. He also represents clients with interests in Iraqi reconstruction and debt repayment.
28. ‘The tribe Germany wants to forget’, New African (March 2000). Ironically, some of the Nazi officials involved in the Holocaust were the sons of German authorities responsible for the Herero genocide. Also, see D. Shelton, ‘The world of atonement: reparations for historical injustices’, Miskolc Journal of International Law 1, 2 (2004), p. 262.
29. ‘The tribe Germany wants to forget’, op. cit.
30. See Civil Liberties Act of 1988, 50 U.S.C. (1989) regarding the US action.
31. Shelton, ‘The world of atonement., p. 268.
35. See Allan D. Cooper, U.S. Economic Power and Political Influence in Namibia, 1700–1982 (Westview Press, Boulder CO, 1982).
36. See International Court of Justice, ‘Application for revision of the judgment of 11 July 1996 in the case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)’, available at <http://www.icj-cij.org> (31 May 2006).