Abstract

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.

In september 2001, the chief hosea kutako foundation instituted a legal claim against three German companies for $2 billion in reparations resulting from the genocide against Hereros in 1904–07. A separate claim was filed a couple of weeks later against the German government for another $2 billion for its role in exterminating over 65,000 Herero during the colonization of German South West Africa (now the independent Republic of Namibia). This article reviews the evolution of these legal claims and analyzes how this litigation fits within the framework of international law.

The German slaughter of Herero and Nama is generally recognized as the first genocide of the twentieth century. Following an uprising of Herero against German settlers, the German Schutztruppe chased the Herero into the Omaheke Desert, forcing thousands of women and children to die of thirst while others were shot on sight. Many of those who escaped death were sent to concentration camps, or coerced into working on German commercial farms, where many died from inhumane conditions.1

The actions taken by the Germans were deliberate and intentional. General Lothar von Trotha, who led the military campaign against the Herero, acknowledged that ‘my initial plan for the operation, which I always adhered to, was to encircle the masses of Hereros at Waterberg, and to annihilate these masses with a simultaneous blow, then to establish various stations to hunt down and to disarm the splinter groups who escaped, later to lay hands on the captains by putting prize money on their heads and finally to sentence them to death’.2 Following the Waterberg battle, von Trotha issued his infamous extermination order

I the great General of the German troops send this letter to the Herero people. The Herero are no longer German subjects...The Herero must however leave the land. If the populace does not do this I will force them with the (cannons). Within the German borders every Herero, with or without a gun, with or without cattle, will be shot. I will no longer accept women and children, I will drive them back to their people or I will let them be shot at.3

Major Ludwig von Estorff participated in the military campaign against the Herero community. He confessed that ‘...it was a policy which was equally gruesome and senseless, to hammer the people so much, we could still have saved many of them and their rich herds, if we had pardoned and taken them up again, they had been punished enough. I suggested this to General von Trotha but he wanted their total extermination’.4

It was estimated that before the war, Hereros numbered about 80,000. The 1911 census organized by the Germans counted only 15,130 survivors inside Namibia. Other survivors had scattered to neighbouring territories, especially present-day Botswana. As many as eighty percent of the Herero had been killed. Their land was transferred to German settlers with long-term loans subsidized by the German government. These farms remain the heart of Namibian agriculture to this day.5

There is little question that these actions constitute genocide.6 The 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines ‘genocide’ as an act ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. Such acts include the killing of members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group. Under the terms of the Genocide Convention, persons charged with genocide can be tried by a competent tribunal of the state in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction with respect to those contracting parties that have accepted its jurisdiction. Any of these contracting parties can call upon the International Court of Justice (ICJ) to address legal issues arising from a genocide.

While the definitions of the 1948 Genocide Convention support the argument that Hereros were in fact the victim of genocide, the legal effort by Herero leaders to seek reparations in 2001 clearly does not follow the traditional procedures outlined for securing a judicial resolution for claims of genocide. First of all, the complaint issued is not by the Namibian government but by a private corporation established by leading members of the Herero community inside Namibia. In fact, the Namibian government decided not to support the legal action taken by the Hosea Kutako Foundation. The Namibian government argued that all Namibians suffered at the hands of German colonizers and that the German government has since entered into a ‘special relationship’ with independent Namibia that would be disturbed by litigation for reparations.7 As a private interest, the Foundation lacks the standing to submit legal claims to the ICJ in The Hague. Instead, it chose to adjudicate a civil liability in US courts under provisions of the Alien Tort Claims Act (ATCA) of 1789. ATCA grants jurisdiction to US federal courts over ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’.

The ATCA of 1789

The Herero litigation against the German government and some of its commercial entities is not the first time that the ATCA has been employed to seek redress of human rights complaints. In Filartiga v. Pena-Irala (1980), Dolly Filartiga brought suit in federal court in New York seeking compensation and punitive damages against Americo Norberto Pena-Irala, who kidnapped and tortured her brother Joelito on behalf of the Paraguayan government. The court awarded Ms Filartiga more than $10 million in damages. The case has since been seen as a landmark ruling that created a new process for remedying victims and survivors of war crimes.

Litigants have utilized ATCA on several occasions since this 1980 case. In 1984, claims were made against Libya based on an armed attack on a bus carrying civilians in Israel.8 In 1994, a case was brought before US courts alleging torture and other abuses by the former president of the Philippines.9 In 1995, two cases were filed using ATCA, one involving abuses by Guatemalan military forces10 and the other alleged abuses including torture and rape sponsored by a Serbian military leader.11 In 1996, a US court heard claims related to the torture of Ethiopian prisoners.12 In 2000, a civil suit was brought against Shell Oil Company for its alleged involvement in the killing of several Nigerians, including prominent author Ken Saro Wiwa.13 There also have been unsuccessful attempts to use ATCA as well. For instance, on 29 November 2004, a US district judge dismissed several lawsuits that had sought damages in excess of $400 billion from US corporations that had done business with the apartheid regime in South Africa. Judge John E. Sprizzo ruled that even though apartheid was ‘repugnant’, the cases brought against American companies bordered on the frivolous, since none of the plaintiffs could show how actions taken by the corporations directly caused any murders, torture, crimes against humanity or other heinous acts in South Africa during the apartheid era. Nor was there any showing that the companies had violated international law.14

The US congress threw its support behind the Filartiga ruling by legislating the Torture Victim Prevention Act (TVPA) in 1991. This law essentially accepts that a violation of international law is a violation of US domestic law. Any individual in the world that suffers torture or ‘extrajudicial killing’ can seek remedy in the courts of the United States.

In 2004, the US Supreme Court weighed in on the question of whether federal courts should be used by non-citizens to advance human rights issues using the ATCA. The George W. Bush Administration urged the court to limit, if not eliminate altogether, the use of ATCA to be used by victims of political violence. But in a unanimous decision, the court declared that ATCA places responsible jurisdiction of international human rights concerns in federal courts.15 Although the court did not specifically define such concerns as including genocide, this is an implication most human rights attorneys seem to accept.16

It is also important to point out that other governments have begun to accept ATCA-like claims. In October 2004, the Court of Appeals of the UK ruled that Saudi Arabia could not claim blanket immunity for a claim made by British citizens who allegedly were tortured while in the Arab kingdom. The Court did ultimately grant immunity to Saudi Arabia, but only after ruling that individual state officials could be held responsible for actions that violate international law.17

The Herero claims

The question before us is not whether US federal courts can be utilized to seek judicial remedies for the Herero genocide of 1904 but whether the German government has standing for such a claim and whether the Chief Hosea Kutako Foundation is an appropriate plaintiff for this case.

Although Germany finally apologized for the Herero genocide on 14 August 2004, Germany has consistently argued that it is not liable for these actions, since the international rules on the protection of combatants and civilians were not in existence at the time that war crimes were being committed in Namibia. Heidemarie Wieczorek-Zeul, Germany’s development aid minister, told a crowd of 1,000 at a ceremony at Okokarara commemorating the genocide that ‘We Germans accept our historic and moral responsibility and the guilt incurred by Germans at that time’. She added, ‘The atrocities committed at that time would have been termed genocide’.18 The German government ruled out financial compensation for the descendants of the victims but did offer increased aid to Namibia, particularly to implement land reform.

Essentially, the German argument is that the 1948 Genocide Convention cannot be applied retroactively to cover crimes against humanity that occurred before the 1948 act. If such an application were permitted, there would be no end to the potential claims that could be made to remedy each genocide in history.

While it is true that ‘genocide’ had not been defined a crime until 1948, actions that might fall under the category of genocide or other war crimes clearly were banned under pre-existing treaties. For instance, the Hague Convention on the Laws and Customs of War by Land, ratified in 1900, stipulates ‘it is especially prohibited to kill or wound treacherously individuals belonging to the hostile nation or army’. The treaty also requires that ‘prisoners of war in the power of the hostile government...must be honorably treated’. Similar provisions are to be found in the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864), to which German states were signatories.

Ultimately, Hereros claim that they were the victims of a German genocide every bit as destructive to their community as that suffered by Jews during the Holocaust — and since Germany has offered reparations to Jews, then it is only consistent that Hereros be compensated in kind. Hereros have argued that the only difference between Jews and Hereros is that the latter are black.

It is noteworthy that the Herero plaintiffs have chosen to identify themselves exclusively as victims of genocide when all Namibians could claim this position. Granted, German colonial authorities responded to the 1904 Herero uprising with a declaration to destroy this group. But Germany also exterminated most of the Nama during this same military campaign. The historical record also reveals that Herero leaders at the time of the German genocide sought the participation of other Namibian ethnic groups in the rebellion. During the initial phase of the rebellion, Herero leaders sent word to the Ondonga kingdom in Ovamboland, and Chief Kambonde and Chief Nehale agreed to join the rebellion. But when local European missionaries in Ovamboland learned that an alliance was being formed, they notified German authorities. Kambonde then met with missionary authorities and retracted his willingness to join the rebellion.19 Chief Nehale remained committed to the alliance and attacked the German military base at Namutoni in northern Namibia. German troops fled the fort rather than face certain defeat at the hands of the Ondonga. Nehale then sent troops to attack Germans at Grootfontein. Throughout the rebellion, Nehale served as a major supplier of ammunition to the Hereros.20 Once the Hereros recognized that Germany was determined to commit genocide against their community, some Herero leaders obtained asylum from Ovambo leaders.21

In short, the Herero uprising was not an isolated and exclusive event that lacked involvement of other Namibian groups. While Herero territory may have been the specific target of German settlers during the first decade of the twentieth century, it is clear that the uprising that began under the leadership of Maharero that killed 123 German soldiers and settlers on 28 January 1904 did in fact involve the participation and support of Namibian ethnic groups throughout the country.

All other ethnic groups in Namibia also experienced some form of genocide as well during the colonial era. Even though most historians argue that German officials exempted the Ovambo, Namibia’s largest ethnic group, from their colonial administration, the fact is that Germany took many actions against the Ovambo to curtail their ability to maintain their traditional political and economic networks. German authorities had stationed 150 soldiers along the southern boundary of Ovamboland by 1896 and began regulating freedom of movement in and out of this area. In 1899, German authorities were imposing taxes and fines upon Ovambo communities. In 1906, Germany declared Ovamboland to be a reservation and assumed all regulatory control of the region. In 1908, Captain Viktor Franke sought ‘declarations of obedience’ from various Ovambo leaders. Ovambo men were secured for the diamond mines in southern Namibia, and the traditional political and economic structure of the Ovambo no longer functioned under the authority of its own leaders.

Each of the other ethnic groups in Namibia has colonial histories every bit as oppressive as the Ovambo. Clearly, the occupation of Namibia by apartheid South Africa from World War I until 1990 technically falls under the category of genocide as well, but there has been no effort to hold the white-minority government of South Africa accountable for their genocide.22 Some Namibians have even claimed that their ethnic group was the target of genocide by Hereros before German colonization!23

Herero leaders of the reparations effort have made it clear that their goal is not to seek compensation from Germany for the purpose of benefiting the whole of Namibia but, rather, to concentrate any such funds directly into the Herero community. Herero Chief Kuaima Riruako, who heads the Chief Hosea Kutako Foundation, has publicly acknowledged that his desire is for the Germans to establish ‘a mini-Marshall Plan’ to bring development aid to the Herero community. ‘We want reparations to buy land and give it to people who need it...’ explains Riruako.24

The exclusive nature of the reparations claim by Hereros has generated some ill-feeling inside Namibia. Given the leadership role Riruako has played in the Democratic Turnhalle Alliance (DTA), Namibia’s leading opposition party, it is difficult to determine whether the real purpose of the legal proceedings against Germany is to win compensation for damages and suffering resulting from the colonial era or merely an attempt to enrich the coffers of opposition leaders inside Namibia. As I maintained earlier, the Hereros can claim no monopoly on suffering from genocidal policies in Namibia even if their community faced the greatest destruction from German military campaigns.

Thus far, US courts have not been supportive of the Herero litigation against Germany and its companies that participated in the genocide in Namibia. The original case was filed in 2001 against three German companies: Terex Corporation, Deutsche Bank, and Woermann Line/DAL Transport (now known as Safmarine). Each of these companies allegedly played a role in supporting the military campaign against the Hereros. Court papers allege that

Foreshadowing with chilling precision the irredeemable horror of the European Holocaust only decades later, the defendants and imperial Germany formed a German commercial enterprise which coldbloodedly employed explicitly-sanctioned extermination, the destruction of tribal culture and social organization, concentration camps, forced labour, medical experimentation and the exploitation of women and children in order to advance their common financial interests.25

The charge against Terex was dropped soon after the filing once the company claimed in court papers that it had been under different management at the time of the atrocities.26 The Herero People’s Reparations Corporation (owned by the Chief Hosea Kutako Foundation) then included the Federal Republic of Germany as a defendant, seeking $2 billion in damages. In the United States, claims against foreign states must be brought in federal court. However, the United States and Germany have treaties with each other stipulating that either party can decline to submit to the other’s jurisdiction. Germany asserted this right, so the claim against Germany was dismissed voluntarily. The two remaining defendants ‘removed’ the case from the superior court to the US District Court for the District of Columbia. The Herero unsuccessfully sought to ‘remand’, or return, the case to the superior court. Each defendant then filed a motion to dismiss the charges, arguing that they were not subject to the jurisdiction of any D.C. court because they did not do business in the District of Columbia. The Deutsche Bank contended that their US office was in New York. The Herero then filed a companion case in the US District Court for the Southern District of New York (a federal court). The trial judge in the D.C. federal action granted the Woermann motion to dismiss the case on personal jurisdiction grounds. This court also granted the Deutsche Bank motion, on grounds that federal courts do not recognize a non-statutory basis for granting relief for violations of international law. The Herero appealed to the US Court of Appeals for the District of Columbia Circuit, but the Court of Appeals affirmed the decision of the D.C. federal trial court.27

Reparations and apologies

Following the atrocities of World War II, the international community accepted the principle of reparations to atone for crimes against humanity. The German government paid 90 billion marks to Israel to compensate for the Auschwitz gas chambers and has paid billions more for other crimes committed against Jews during the war.28 In 2001, a Holocaust slave labour settlement of $6 billion was established by the German government and a consortium of German and American companies. Japan recently apologized for its war crimes in Korea, including the use of women as sex slaves for Japanese troops, and paid reparations for these actions.29 The United States and Canada both compensated citizens of Japanese heritage for interning them in concentration camps during World War II.30 The United States also made monetary compensation to the Klamaths, Sioux, Seminoles, Chippewas and the Ottowas for actions taken against those indigenous nations during past centuries. In 1995, the State of Florida paid $2.1 million to more than 150 residents of the city of Rosewood for a massacre of African Americans that occurred in 1923.31 In March 2004, the US government agreed to pay a $25.5 million settlement for the looting by American soldiers of property belonging to Hungarian Jews during World War II.

The fact remains that reparation claims for past injustices are a rare feature among nation states. More common have been demands for apologies. Ukrainian-Canadians demanded remedies from Canada for detaining about 5,000 of their group during World War I. Italian Canadians sought an apology from Canada regarding their relocation and detention during World War II. In 1992, President Jacques Chirac acknowledged French complicity in deporting 76,000 Jews to German death camps. British Prime Minister Tony Blair apologized for the British role in the Irish potato famine of the nineteenth century. Benin and Ghana apologized for their roles in the trans-Atlantic slave trade. In March 2000, the Aetna Insurance Company apologized for issuing insurance policies to slaveholders on the lives of their slaves. Pope John Paul II accepted past responsibility for injustices committed by the Catholic Church. Southern Baptist officials apologized for the support for slavery during early American history. In 2000, the head of the US Bureau of Indian Affairs apologized for the agency’s role in the forced relocation, murder, and sterilization of millions of Native Americans during the 1800s. Queen Elizabeth apologized to the Maoris of New Zealand for British offences against that indigenous group. Likewise, Norway apologized to the indigenous Sami people. The prime minister of Denmark apologized for the Inuit people who were displaced from Greenland in the 1950s.32

There remain many demands for apologies that have gone unheeded. Most notably in 2003, President George W. Bush called the slave trade ‘one of the greatest crimes of history’, but refused to apologize for it.33

Nearly all of the incidents mentioned above that resulted in reparations came about through negotiations between the specific parties or as a result of legislative actions taken by the offending state. In each case, consideration was given to the notion of inter-temporality — that the responsibilities and obligations of the subject party were determined by the laws in force at the time the offense transpired. As noted previously, the German government argues that its genocidal actions against the Herero were not illegal at the time they were committed in 1904. Even the Hague Convention of 1899 that banned reprisals against civilians may not apply to the Herero genocide, since the Herero were not a signatory to the treaty. But Dinah Shelton suggests that if the Hague Convention is interpreted to represent principles of international law, then its rules should apply to the Herero genocide, since the Herero had not relinquished their full sovereignty as of 1904.34 A complicating factor is whether the one billion Deutsche marks provided to Namibia from Germany since independence represents a type of reparation that might diminish Herero claims for damages resulting from the 1904 genocide.

Shelton argues that the history of successful reparation claims suggests that they are more likely under the following conditions: (i) the perpetrators are identifiable and still living; (ii) the victims are mostly still alive or their immediate descendants present; and (iii) political pressure for reparations is strong and the victims enjoy cohesive support. These conditions do not exist for the claims being made by Hereros against the German government and its companies. None of the German officials or military personnel involved in the 1904 genocide is alive today. Nor are any of the Herero victims of the genocide alive. While descendants of the surviving Herero certainly are present in Namibia, the claim organized by the Chief Hosea Kutako Foundation does not specifically identify any of the plaintiffs as descendants of the genocide in the legal claims filed in US courts. Finally, the political pressure for securing reparations from the Germans for the Herero genocide is not strong; in fact, not even the Namibian government supports the claim.

On the other hand

There is no question that the genocide of Hereros during 1904 constitutes a grave injustice and an important event in the history of crimes against humanity. The Herero have several options before them in seeking reparations for this crime, yet each is fraught with obstacles. First, Namibia could bring a case against companies investing and trading in Namibia during the time it was occupied by South Africa. In 1971, the ICJ issued an advisory opinion declaring South Africa’s continued presence in Namibia to be a violation of international law. This ruling stipulated that commercial enterprises involved with Namibia could face legal actions from a future legitimate government in Namibia. US President Richard M. Nixon accepted this decision, and his administration made a public notice to the American corporate community that the US government did not sanction their economic activities in Namibia and would not defend them in any action by a future Namibian government. It has been estimated that the value of US trade with Namibia up to 1982 was in the neighbourhood of $3 billion.35 When one adds the value of commercial activities from other countries, as well as American trade from 1982–90, and includes interest, it is obvious that we are talking about a sum that far exceeds the $4 billion requested by the Herero in their recent legal actions.

Such an action has the advantage that the ICJ has already accepted the standing of the Namibian government for such a case and has accepted the potential liability of the hundreds of companies that supported South Africa’s occupation of Namibia. Furthermore, the United Nations Council for Namibia issued Decree No. 1 in 1974 asserting that the natural resources of Namibia were under the protection of the UN and the international community, and therefore, exploitation and depletion of these resources during South Africa’s illegal occupation was a violation of international law. A potential downside to this potential claim is that some of these companies continue to invest in Namibia and are consequently working with the government to advance the economic growth of the territory. But it remains a possibility that the Namibian government, given its special circumstances arising from previous ICJ rulings, could seek an advisory opinion from the ICJ regarding the culpability of specific transnational corporations whose investments in apartheid Namibia impeded the enforcement of international law. Such advisory opinions are not unusual; in fact, the 1971 advisory opinion on Namibia mentioned above remains one of the most notorious decisions issued by the ICJ since its inception. It remains problematic whether the ICJ in The Hague would accept a claim by Namibia against transnational corporations, since the latter are not states that would otherwise be parties to World Court litigation. In Holy See v. Starbright Sales Enterprises (1994), the Philippines Supreme Court ruled that the Holy See was a sovereign entity with immunity from lawsuits arising from a dispute with a commercial interest. However, in a potential case litigated by the Namibian government, this principle would not apply, since the sovereign plaintiff is the party seeking the judicial proceeding.

The Namibian government might initiate a case against a sovereign government that failed to warn or prevent its nationals from investing in Namibia during the time it was occupied by South Africa, but it is not clear whether such a state could be forced to pay financial compensation on behalf of a corporate citizen that violated international law based on the 1971 ICJ advisory opinion. It might be possible to seek an ‘advisory opinion’ of the ICJ, but such deliberations are typically limited to questions of law, not the liability of non-sovereign defendants.

Namibia could bring a case in a US federal court under ATCA, but this would require having the court treat a state as an ‘alien’. The UN might be convinced to establish a special arbitration proceeding to supervise complaints lodged by the Namibian government against transnational corporations, much like the special proceedings sanctioned by the UN to hear cases involving crimes against humanity in Rwanda. But this might require approval from permanent members of the UN Security Council whose corporate citizens represent a significant number of the companies allegedly violating international law during Namibia’s occupation in the first place.

The one case that would eliminate any question of standing is for the Namibian government to sue South Africa in the ICJ, or another tribunal sanctioned by the court, for damages resulting from the latter’s illegal occupation of Namibia. This case could assert that all damages resulting from at least 1971, when the ICJ issued its advisory opinion are subject to a reparations claim. The irony of such litigation is that democratic South Africa, which itself was a victim of apartheid abuses, could be held responsible for damages resulting from the pre-1994 apartheid government of South Africa. Ironically, there is a precedent in international law for such an understanding. As mentioned previously, the ICJ ruled in Bosnia v. Yugoslavia (2003) that even democratic regimes are responsible for the crimes committed by non-democratic regimes that preceded them.36 Serbia had maintained that its existence as a UN member began in 2000 and that the new Belgrade government bore no relationship to the previous Belgrade government presiding over Yugoslavia. The ICJ rejected this assertion. Namibia could proceed with a similar case, but only if Herero political leaders removed themselves as plaintiffs and let the Windhoek government assume full responsibility for the case (since the ICJ only hears cases brought by states). Given Namibia’s close relations with South Africa, such a suit is highly unlikely at this time.

Ultimately, the better pathway for achieving justice against Germany for the Herero genocide might be for both parties to seek a negotiated compromise outside a courtroom. This appears to be the only strategy that does not complicate both Namibian domestic politics and its foreign policies. This approach may also strengthen the ability of African states to contextualize future foreign aid from their previous colonial authority.

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.

3.

Ibid, p. 172.

4.

Quoted in ibid, p. 174.

5.

See S. Harring, ‘German reparations to the Herero nation: An assertion of Herero nationhood in the path of Namibian development’, West Virginia Law Review104 (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 Studies19, 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.

20.

Ibid.

21.

Ibid, p. 58.

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 Law1, 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.

32.

See ibid, pp. 262–66.

33.

See ibid, p. 266.

34.

Ibid, p. 283.

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).

Bibliography of books and articles

References to other sources, including interviews, archives, newspaper articles, court cases, websites and grey publications, are contained in relevant footnotes.
Bley
,
Helmut
,
South-West Africa under German Rule 1894–1914
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1971
).
Bridgman
,
Jon M.
,
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1981
).
Cooper
,
Allan D.
,
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 ,
1700
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1982
).
Cooper
,
Allan D.
,
Ovambo Politics in the Twentieth Century
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2001
).
Dedering
,
Tilman
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Journal of Southern African Studies
 
19
,
1
(
1993
), pp.
80
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Drechsler
,
Horst
,
Let Us Die Fighting: The struggle of the Herero and Nama against German imperialism 1884–1915
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1980
).
Gann
,
L.H.
and Peter Duignan,
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1977
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Gewald
,
Jan-Bart
,
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1999
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Harring
,
Sidney
, ‘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
–8.
Katjavivi
,
Peter
,
A History of Resistance in Namibia
  (James Currey, London,
1988
).
Lau
,
Brigette
, ‘Uncertain certainties: The Herero-German War of 1904’,
Mibagus
 ,
2
(
1989
), pp.
4
–5, 8.
Shelton
,
Dinah
, ‘The world of atonement reparations for historical injustices’,
Miskolc Journal of International Law
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1
,
2
(
2004
), pp.
259
–89.
Silvester
,
Jeremy
, and Jan-Bart Gewald,
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  (Brill, Leiden,
2003
).

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