A response to Germany's 'sugar-coated' genocide regret

In February, seven UN special rapporteurs jointly wrote a letter to the German government and one to the Namibian government, in which they articulated their concerns regarding the violation of international law during the German-Namibian interstate negotiations on the Nama and Ovaherero genocides of 1904–1908.

The negotiations led to a joint declaration initialled by the two governments in May 2021. Both Germany and Namibia responded at the end of May 2023 to the concerns raised by the UN special rapporteurs.

It is very clear from the response of the German government that there is continued denial of the responsibility Germany has for the crimes committed during its colonial rule.

In fact, it is as if Germany is reconfirming its 'civilisation mission', which it started during colonial rule. The special rapporteurs clearly reminded Germany of its legal obligations and that development aid does not constitute reparations. Yet Germany continues to refer to Namibia as its highest per capita recipient of development assistance.

In the very first bullet of its response, Germany already denies that a crime of genocide was committed and only makes a vague reference to an ill-defined special relationship. As if to emphasise its denialist argument, bullets 21 to 25 again reaffirm that under international law, natives did not fall under the category of civilised nations.

Yet in the same vein, Germany expresses its "profound regret" for the "abominable atrocities".

This argument is reflective of Germany’s admission of guilt without admitting any guilt at all.

It blatantly perpetuates the same colonial hierarchies by basing its legal arguments on a racist legal doctrine that reduces black people to uncivilised savages and wild tribes.

Germany then continues to present the development aid package as a gift of the 'white saviour', who feels pity for people who once were considered savages, and as a token of coming to the rescue of a backward nation in need of reconstruction.

What is mind-boggling is that Germany does not even blink an eye at its own contradictions and ambiguities. On the one hand, she feels "profound regret", and in the same breath, she declares that "today's outlawing and prohibition of genocide under international law did not exist in the years 1904 to 1908".

The entire response is indicative of the continued colonial relationship between Germany and Namibia. It is very clear that Germany held the trump card during the entire negotiation process and that Germany used its economic and political power to force Namibia into a deal by dangling a carrot of one billion euros to be given over 30 years, which amounts to exactly the same Germany has been providing since independence.

The diplomatic verbiage of "profound regret" becomes like a ballroom waltz to create the hypnotising illusion that some philosophical solution has been found.

Yet, when the music fades away, the reality hits that this solution is merely a fabrication of Germany’s imagination, which shall never be accepted by the Nama and Ovaherero people who bore the brunt of this horrific crime.

'Patronising' gift

Instead of responding to the very specific concerns and questions raised by the special rapporteurs, Germany then goes into a patronising frenzy of self-glorification about how kind it has been to Namibia since independence, as if it is hoping to mesmerise the special rapporteurs into Germany’s realm of inter-temporal white supremist legal doctrine.

The two governments keep insisting on the principle of bilateral negotiations, and that a sovereign state can only enter negotiations with a sovereign state.

However, this legal principle does not supersede direct participation rights, which are enshrined in international human rights law, especially when it comes to matters such as genocide. Genocide is a targeted crime, and those targeted for this crime have a legal right to be heard. The special rapporteurs specifically remind Germany that the "legal status of the Herero and Nama peoples and their representatives as indigenous peoples under international law and national law is different and separate from the Namibian government itself, and thus requires a place of its own in negotiations... therefore, no valid negotiations can be conducted and no just settlement can be reached without them".

Germany cannot be the perpetrator and the judge for a crime it committed.

While supposedly admitting guilt, it determines the price to be paid for the losses incurred and the conditions for reconciliation. This in itself is a continuation of the objectification of indigenous people, who in fact are subjects of international law rather than invisible objects of law.

The German government further states that it "noted the decision of the OTA and the NTLA to turn down the Namibian government’s invitation to take part in the reconciliation process". This is despite the reminder by the special rapporteurs that the insistence of OTA and NTLA on self-representation does not constitute a refusal to participate. Germany also alleges that the "representatives OTA and NTLA decided against a direct or indirect participation in the dialogue from the outset".

Germany seems to forget that it was actually the NTLA and OTA that dragged it to the negotiating table by filing a class-action lawsuit in New York.

Between 2006 and 2014, Germany consistently refused to acknowledge genocide or at the very least discuss the matter. When the two associated representatives of the Nama and Ovaherero people approached the New York courts, Germany finally communicated to the Namibian government that it was ready to talk. The Namibian government, through the prime minister, repeatedly confirmed Germany’s refusal to resolve the matter for a long time. It is therefore no coincidence that Germany finally gave in just during the same period it received the court documents from the legal representatives of the NTLA and OTA. NTLA and OTA never refused to negotiate.

They refused to be onlookers and technical advisors to a government negotiation process.

It also mentions that "traditional authorities registered with the Namibian government in line with Namibia’s statutory provisions are responsible for organising their traditional life and representing them at state level". A further reference is made to over 250 chiefs of the Herero, Nama, Damara and San who came together on 27 October 2022, at the invitation of the Namibian government for a Chiefs Forum.

There is also reference to an OvaHerero/OvaMbanderu and Nama Council for the Dialogue on the genocide.

One wonders whether the German government has even considered whether the so-called chiefs and traditional authorities it refers to are indeed registered with the Namibian government in line with statutory provisions. Just considering the Nama component of the people who have been talking to both governments, not a single one of them is registered in terms of the statutory provisions Germany is referring to.

This raises the issue of the legitimacy of the Namibian government’s hand-selected representation of affected communities, which both Germany and the Namibian governments are referring to in their replies. This fact points to the illegitimacy of the entire negotiation process.

With a complex state intelligence service such as that of Germany and the German foreign office, one would have thought that they would first ascertain their facts before making such a self-implicating blanket statement about registered traditional authorities.

It would also be very interesting to see the list of over 250 chiefs when, in fact, according to the legal gazette of the Namibian Traditional Authorities Act, there are only about 52 gazetted traditional authorities in Namibia. How the so-called Chiefs Forum invented 250 chiefs is beyond logical understanding.

Germany is advised to stop embarrassing itself in international forums and refrain from further faking remorse.

Anyone who carefully reads its statement can see through the self-serving glorification as a justification of mass murder, which is now sugar-coated as a "profound regret", and its sorrow handed down as a patronising gift of "development aid for reconstruction and reconciliation".

Germany’s foreign policy and legal argument are based on a racist colonial interpretation of international law when it states that "today's outlawing and prohibition of genocide under international law did not exist in the years 1904 to 1908". No amount of remorse can remove this deep-seated colonial undertone from the entire negotiation process. The diplomatic jargon of "healing wounds" is a smokescreen.

Sima Luipert is a Nama reparations activist, development practitioner and great-granddaughter of a genocide survivor.