The year 2015 marked the start of a long and complicated negotiation process, when Germany finally recognised its numerous atrocities during colonial occupation of Namibia as genocide. In 2004, Germany had admitted to its colonial violence but was reluctant to classify it as a genocide – an admittance to committing one of the gravest crimes against humanity.

Since its inception, the negotiations have focused on three key issues: recognition of the genocide, an apology, and reparations. These talks faced another roadblock in early August 2020, when Namibian President, Hage Geingob, stated that: "The current offer for reparations made by the German government remains an outstanding issue and is not acceptable to the Namibian government." However, Germany has denied that the alleged €10 million offer was made.

THE HERERO-NAMA GENOCIDE (1904-1908)

During the infamous 1884 “Scramble for Africa”, Germany annexed South West Africa (modern day Namibia) - confiscating land and subjecting Indigenous people to violence. In 1904, the Ovaherero (Herero) and Nama people rebelled against German occupation. German General von Trotha responded by issuing an extermination order: waterholes were poisoned, food supplies were cut, and African peace emissaries were killed. Many who survived were imprisoned in concentration camps where they eventually perished. These atrocities culminated in the loss of approximately 80% of the Nama population and 50% of the Herero.

Although the crime of genocide did not exist in international law until the 1940s, these events were formally recognised as such in the 1985 UN Whitaker report for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, and are widely regarded as the first genocide of the 20th century.

REMEDIES FOR GENOCIDE AND INTERNATIONAL CONDUCT ON COMPENSATION FOR COLONIAL ABUSES

The ongoing negotiation proceedings for the Herero and Nama genocide is unique. Unlike with other genocides, criminal tribunals are not being used as a judicial remedy. With Germany only accepting the gravity of its actions over a century after they occurred, it would be impossible to prosecute any individuals concerned in accordance with the UN Convention on the Prevention and Punishment of the Crime of Genocide. Nevertheless, it is unclear how effective diplomatic means of recognition, reparations, and apology will be as a remedy for genocide.

In the 2013 Mau Mau case, Kenyan victims of colonialism were granted the right to claim compensation from the British government. The British government agreed to pay £19.9 million to 5,228 victims of the Mau Mau rebellion who faced systematic abuse, castrations, sexual assault, and beatings sanctioned by high-ranking British officials. In spite of the compensation and admission of the abuse that took place, the British government still continues to deny legal liability.

Despite the use of non-legal means, the Namibia-Germany negotiations will offer some insight to other African nations dealing with the devastation wrought by colonial rule. There is also a greater awareness among certain European states reckoning with their colonial past – particularly in view of the Black Lives Matter movement which has gained traction since the gruesome death of George Floyd in May 2020.  

In June 2020, Belgium’s King Philippe expressed “deepest regrets” for his country’s colonial atrocities in the Democratic Republic of the Congo (DRC) which led to the deaths of between 10-15 million people. Although not an outright apology, the DRC and Belgium might be heading in a similar direction to the Namibia-Germany negotiations in the coming years.

LOOKING FORWARD: CONTINUED NEGOTIATIONS AND POSSIBLE PRECEDENT SETTING

The rejection of the alleged offer is unlikely to bring talks to an end, with German special envoy, Ruprecht Polenz, stating: “What matters is that the negotiations are ongoing, and I am still optimistic that a solution can be found.”

However, the latest development does raise other questions, most notably, what any future cash payment will be called. Germany prefers the use of the phrase “healing the wounds” over reparations, to avoid setting a precedent for restitution claims by other European nations for its crimes during the Second World War.  In addition, there remain mixed feelings within Namibia on the problem of equating compensation with recognising actions and expressing remorse, when all three are necessary. As talks are also held in private, it is unclear if and how the negotiations will be able to meet the demands of the victims’ descendants, as well as the Namibian government.

Undoubtedly, the international community will be watching the situation very closely, as it is likely to influence future discussions on colonial reparations.

Osi is a final year student of International law and Globalisation (LLB) at the University of Birmingham with a year at the National University of Singapore. She previously served as a Co-chair for her university's Free Legal Advice Group. She is an aspiring diplomat interested in women's rights, international trade, and international environment law.

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