Jörn Axel Kämmerer, Jörg Föh
Das Völkerrecht als Instrument der Wiedergutmachung? – Eine kritische Betrachtung am Beispiel des Herero-Aufstandes
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In 1904 one of the most severe colonial conflicts ever took place in Namibia – then German South West Africa – between the people of the Herero and German imperial military forces. Almost a hundred years later, on 18 September 2001, the Herero filed a law suit against the Federal Republic of Germany and – forming a »brutal alliance« – two German companies before the District Court in Washington D. C., thereby lifting the veil of oblivion. They claimed US-$ 2 billion in reparations for alleged violations of international law. It is assumed that during the 1904 events, most Herero were forced to starvation in the Omaheke desert. The remaining 15,000 tribe members were later dispersed and condemned to forced labour. However, abandonment of action was declared in late 2003. Although a civil law suit had been filed, the basis of the legal dispute – aside from the question of state immunity – turned on on the validity and the range of public international law at colonial times. From a contemporary legal perspective, Germany – like most colonial powers in their acquired territories – would have committed grave breaches of international law, amounting, in particular, to genocide. However, these standards reflect relatively recent developments of public international law, whereas in the colonial era, self-appointed »civilised« European powers did not regard indigenous colonial peoples as bearers of rights within the »family of nations«. The widespread practice of concluding »protection treaties« with native tribes did not impair the acquisition of »colonial sovereignty« by the means of occupation. As German appropriation of Southwest Africa took place between 1885 and 1900 the Herero war of 1904 must be considered as a non-international conflict. Although this does not rule out the application of international legal standards, at the time of the events none of them were applicable to the case. While genocide did not actually become an offence until 1948 and humanitarian international law has been applicable to internal conflicts only since 1977, there is at least some evidence of customary international law prohibiting »genocidal« actions already at the beginning of the 20th century – albeit, not those directed against allegedly »uncivilised« peoples. The Final Act of the 1885 Berlin Conference, which contained (rudimentary) obligations of the colonial powers with respect to the treatment of indigenous peoples, only applied inter partes and conferred no rights upon »natives«. The at first sight highly unjust result is that »latecomers«, discriminated against by former Eurocentric international law, are deprived of adequate compensation because of the relevance of now overruled standards whose creation they were prevented from participating in. However, public international law is subject to temporal changes and cannot administer historical justice without bringing about further injustice by failing to deal with events earlier in human history. This is why the invocation of public international law as a remedy cannot go beyond its historical scope and limits.