Abstract 

Excerpted From: Karina Theurer, Minimum Legal Standards in Reparation Processes for Colonial Crimes: the Case of Namibia and Germany, 24 German Law Journal 1146 (November, 2023) (124 Footnotes) (Full Document)

On January 19, 2023, Namibian lawyer Patrick Kauta filed an application with the Namibian High Court to review and set aside the Joint Declaration, initialed and published in May 2021 by the German and Namibian governments following their negotiations on reparations for the colonial crimes committed by Germany in what is today Namibia. Kauta and his team of lawyers are seeking to have the Joint Declaration designated as unlawful. And to prevent the agreement from being implemented. This lawsuit may well mark a milestone in the history of legal struggles for reparations from colonial wrongs worldwide. For the first time, the procedure and content of an interstate agreement on the reappraisal of colonial historic injustice could be adjudicated by a court in a former colony. The lawsuit is part of a long-term legal intervention designed together with the affected communities that aims at reparations and at the decolonization of international law. In addition to the domestic litigation, the affected communities and the team of lawyers contacted several United Nations Special Rapporteurs in autumn 2022. After having conducted their own research, they wrote two letters to the German and Namibian governments in February 2023. On April 24, 2023, they published their joint communications--confirming that participation rights have been violated and that Germany has to grant reparations. If the two governments agree to refrain from signing and further implementing the Joint Declaration as a result of the growing political pressure or if the High Court decides to set aside the Joint Declaration, the German and Namibian governments would have a historic opportunity to begin new negotiations--this time in accordance with minimum legal standards.

It is thus timely to have a look at colonial legacies in current international law. The analysis of the decades-long tug-of-war between German and Namibian actors on reparations is of general interest for international law scholars and for scholars interested in history of law. It allows us to trace how racist exclusion formed the backbone of European colonization, and in which ways this racist exclusion continues to be reproduced in today's--hegemonic-- interpretations of international law. It also allows us to clarify in an exemplary manner which minimum legal standards have been violated and need to be respected, protected, and fulfilled in any process on reparations for colonial crimes henceforth.

Several legal issues play a key role. First, what laws were in force at the time of German colonization and which practical challenges do courts face today when they attempt to adjudicate acts that were committed 100 years ago and to reconstruct the laws at the time? Second, does the German state have a legal obligation to enter into negotiations over reparations? Finally, what participation rights of affected communities need to be respected, protected and fulfilled?

I begin my contribution with an overview of the historical events during German colonial rule, and of the most significant efforts to legally come to terms with them since 2006. In Part C, I analyze the three main legal issues pertaining to the German-Namibian reparations process. I address the question of the law in force at the beginning of the twentieth century, attempting to reveal colonial premises that have become hegemonic in international law. I propose a decolonial application of the intertemporal law doctrine that takes into account the existence of a pluralistic legal order before European international law became universal, and the challenges in retrospectively reconstructing pre-colonial legal orders. I analyze whether the participation rights of the Ovaherero and Nama have been violated during the German-Namibian interstate negotiations so far, and in which ways the two governments will have to include the affected communities in future negotiations. I conclude by outlining minimum legal standards for negotiations on reparations for colonial crimes worldwide.

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The quote by Lothar von Trotha with which I began my Article reveals the blunt racism that was the legitimizing ideology for the violence deployed in European colonies. It sparks doubt with respect to the German government's assessment of the laws in force at the time because it seems that von Trotha took the deliberate decision not to respect the Geneva Conventions. This of course would mean that he thought they applied.

In my Article, I have described the colonial crimes committed in Namibia and shown to what extent they were formally legitimized by a specific interpretation of European international law, both in terms of legal subjectivity and by German colonial law. Both legal systems at the time were based on the racist devaluation of non-white people. The distinction between “civilized” and “uncivilized” nations was, however, controversial at the time, and some European legal scholars confirmed legal subjectivity of non-European nations and humanitarian legal protection. Only few decades after the genocides in Namibia, this racist distinction disappeared (at least as a formal legal criteria) and the recognition of the legal principle of self-determination of all peoples became predominant in international law.

With regards to the doctrine of intertemporal law, I have shown that the question of the laws in force at the time is a crucible in deconstructing eurocentrism in international law. With regard to the difficult task of adjudicating facts of a hundred years ago and determining the laws at the time, I have described the challenges of retrospective reconstruction due to the erasure of pertinent knowledge and sources and I have outlined the risks of conceptual imperialism. What is clear, however, is that an unreflective retrospective assumption of prevailing opinions without thorough historical research into when exactly European international law substituted “other” legal orders and standards is not sufficient for a legally correct application of the doctrine of intertemporal law. If such a retrospective assumption constructs prevailing opinions that turn out to be more racist than they actually were, this can amount to a new act of racism. In any case, it is deeply Eurocentric and a reproduction of colonial racism.

The German Foreign Office and any other representative of a former colonial power should refrain from reproducing the racist distinction between civilized and uncivilized nations in any legal proceeding that takes place today. The prohibition of racialization and racist discrimination is one of the core principles of international law, forms part of jus cogens, and is one of the basic human rights enshrined in several human rights treaties. Any process of reconciliation and reappraisal of colonialism can only be successful if this initial racist dehumanization at the core of colonialism is deconstructed and overcome in today's legal reasoning. Furthermore, the racist distinction between civilized and uncivilized nations disappeared from the international legal order at the beginning of the 20th century. It might thus not fulfill the requirements of the second element of intertemporal law, and as a consequence, might not rightfully be taken as a basis to determine the laws in force at the beginning of the 20th century.

The theoretical and practical challenges in applying the doctrine of intertemporal law that I analyzed in my Article could mean that a court might find itself to be unable to decide and thus might lead to a declaration of non liquet. Even if this was the case, the German state still has a legal obligation to enter into direct negotiations on reparations for its colonial crimes committed in what is today Namibia. This legal obligation can be derived from ethical principles, the racist dehumanization itself, or the basic principles of equality and human dignity which require a transformation of international law towards these guarantees. Participants in these negotiations can be the independent states, but for sure need to be the self-elected representatives of the affected communities in accordance with international customary law. I emphasized in my Article that it is of foremost importance to move away from equating reparations with financial payments and instead think of reparations as positive measures to tackle the transgenerational social, cultural, political and economic exclusion and to overcome colonial racism inscribed into laws.

With regard to the German-Namibian negotiation process, I highlighted the 2006 parliamentary resolution which plays a key role from a Namibian constitutional perspective. I have shown how there was initially consensus on an interparliamentary forum to deal with the past between Germany and Namibia. It is unclear why in 2015 the two governments started to negotiate in strict secrecy. I have also shown that in these negotiations, the participation rights guaranteed under customary international law of both the Ovaherero and the Nama have been violated. This violation is attributable to both the Namibian and the German governments, as both governments are originally bound by international law in this respect.

The lawsuit before the Namibian High Court could be a historical milestone, because it is the first time that an interstate agreement on the reappraisal of colonial crimes is being reviewed in a court of a former colony. It might lead to declaring the Joint Declaration as unlawful. This would pave the way for new negotiations--this time hopefully in compliance with minimum legal standards. With regard to international law, a decolonial interpretation and application of the doctrine of intertemporal law would certainly be central in this regard. Furthermore, the participation of the affected communities in a substantial way and through self-elected representatives could be facilitated. From a constitutional law perspective, the founding affidavit to the Namibian High Court clearly shows the legal obligation of Namibian state authorities to actively involve the Namibian Parliament. With respect to the German context, it would be interesting to research legal rights and obligations of the German Bundestag from a German constitutional law perspective.

Humboldt Universität zu Berlin, Berlin, Germany;