During the Herero Wars 1904-1907, one of the first genocides of the 20th century was carried out under German colonial rule over German South West Africa (today’s Namibia) against the indigenous Herero and Nama ethnic groups. Aside from the ethical questions about the responsibility for the enduring painful repercussions, the issue still attracts high scholarly and official attention in political and legal domains. Especially the question of the Herero People’s subjectivity under international law is controversially discussed. The outcome of these contradictory assessments is highly important for the determination of illegality or applicability of certain rights and obligations accruing to the Herero, and ultimately the reparation claims based on the genocidal acts committed against them. After having briefly introduced the political and legal context, the essay will examine the character of the international legal personality of the Herero people. The influence on the rights deriving from international law and therefore on the legal procedures and possible successes of legal claims for reparation will be discussed using examples of contemporaneous treaty and customary international law. Considering recent legal proceedings of the Herero, the question of how the legal personality of the Herero may affect their rights provided for them is crucial in determining their possibilities.

            The Herero Wars (1904-1908), carried out by German colonial troops against the indigenous Herero and Nama ethnic groups in German SouthWest Africa, mark one of the darkest eras of German colonial history1. Over 65,000 people died when German colonial troops crushed an uprising of the oppressed Herero and Nama people.2 “The actions taken by the Germans were deliberate and intentional” and [t]here is little question that these actions constitute genocide”3.

            Genocide shall be defined according to Art. 2 of the UN Convention on the Prevention and Punishment of the Crime of Genocide4 and the term shall be read in conjunction with the preamble to include pre-1951 acts of genocide.5

            An extermination order by German General Lothar von Trotha issued on October 2, 1904, is frequently adduced as the main evidence for this genocide6 upon which reparation claims by the Herero People are based nowadays.

            “The concept of reparation […] is an equitable principle that the beneficiary of an ill-gotten gain should make restitution, both as an act of contrition and goodwill, but also simply to restore the victim to some part of their previous life.”7

            Setting the focus of the reparation claims on the issue of genocide is argued to be more successfully feasible than on the seizure of land and cattle that defined the basis of the existence of the Herero8, especially if litigated at the international level.9 In fact, the Herero, their representatives, and companies filed a case against Germany before the International Court of Justice in 1999. It failed due to the ICJ’s lack of jurisdiction as the Herero, being a non-state actor, did not have standing before the world court10. On the national level, the Herero sued Germany and German companies in  2003 before a US federal court in Washington under the Alien Tort Claims Act of 1789, but were not successful after Germany legally refused to appear as a defendant in an American court and the cases against the companies were dropped11. The most recent attempt of the Herero, filing another Federal Class Action Complaint against Germany in January 2017 demanding reparations for the genocide 1904-1907 before the Southern District Court of New York, was dismissed due to lack of jurisdiction ratione personae et materiae.12 Only in 201713, the Namibian government started supporting the Herero’s legal action and sought a joint lawsuit demanding N$400 bn in reparations for the genocide which has not been realized yet.

            These failures at litigating share a common denominator, namely the international legal personality of the parties involved and the question of their identity as subjects of international law14 – be it the lack of recognition of the Herero’s international legal personality by the ICJ, the lack of representation of the Herero’s claims by Namibia as a subject of international law or the protection from legal action against the Federal Republic of Germany before US courts based on the Foreign Sovereign Immunities Act of 1976 pursuant to the defendant’s international legal personality.

            Nevertheless, the Herero collective claims are described to be very specific having a “precise basis for their claims as acts of genocide committed against their nation by the German army, acting under specific orders in carrying out German colonial policy in the Herero War of 1904-07”15. Henceforth, this essay discusses the Herero People’s international legal personality and questions in how far they are a subject of international law. It will further show how different outcomes of this assessment influence litigations for reparation claims with special attention to the intertemporal character of international law.16

                     This essay is subject to limitations in so far as it considers only the Herero People’s statehood and hence its existence as a subject of international law.

                                                         The Herero Nation as a State: Legal Contestations

            At around 190017, only sovereign or partly-sovereign states were, if recognized, subjects of international law. The criteria classifying statehood that will be applied to the Herero people have not changed gravely since then: state territory, state people, state authority.18 The conclusions of these assessments vary considerably from the Herero People’s complete lack of statehood to state-like legal personality.

            State authority. The Herero’s uniform, durable and effective exercise of internal (ability to create and maintain internal political organization and judicial order) and external (ability to act independently of other subjects of international law) sovereignty is often questioned pursuant to its lack of a government that exercised jurisdiction over the People in their territory at any time before or during the protectorate.19 On the contrary, others assert that the Herero’s socio-political structure resembled something quite similar to that of a state with an element of government nominally distinguishing it from a mere nation.20 The Herero Nation underwent important political and societal changes before and after the onset of the 19th century including a process of political and geographical centralization that formed a complex system of political organization, class-based stratification, and an organized judicial system.21 The historical evidence showing characteristics of a sovereign state find appreciation in the closely connected issue of the (state) territory.

            State Territory. Whereas some scholars conclude that due to the fluent and changeable borders the territory of the Herero Nation cannot be said to be a state territory, it can further not be assumed that it was some terra nullius over which sovereignty could be established by means of effective occupation22 resembling an internationally wrongful act.23 In the case of the Herero, it is clear from the argumentation above that even if one regards the political organization of the tribe insufficient for asserting statehood, certain political and social structures represented internally and externally by paramount chief Maharero and the political organization against German military actions in 1904 prove that the territory was not terra nullius.24

            Capacity to enter into relations with other states. A further aspect of statehood is the capacity of entering relations with other states on an equal playing field. The protection treaty concluded between Germany and the Herero, which was signed on October 21, 1885, may serve as a recognition of such capacity. Even if the Herero Nation did not belong to the European community of international law, it is necessary to assess the legal relationship between the Herero and Imperial Germany at least in light of the international law appertaining to the “outsiders” of this “family”.25] Not only did the German government refer to the Herero as a nation in their official documentation and entered into bilateral treaties with them, but also the entry into such treaties on the side of the Herero serves as evidence of their exercise of sovereign power.26 Some scholars argue that especially the aforementioned protection treaty appreciates the Herero’s jurisdiction over their own territory and people independent of direct influence by Imperial Germany, as well as their ability to enter into treaties conferring obligations and rights on other subjects of international law. Following this argumentation, the Herero Nation was independent of exercise of sovereign control and consequently did not belong to the territory or control of the German Empire until after 1907.27 It is argued that the partial limitation of the Herero Nation’s external sovereignty through the Protection Treaty is in line with the definition of a state if “it remains independent from direct orders by other states”.28

            However, the provision in the Treaty prohibiting the Herero Nation to conclude treaties with third countries29 without German consent is regarded to be a transfer of external sovereignty to Imperial Germany.30 A lack of civilization, diplomatic consultations, and recognition of international legal norms is presented as a proof for the Herero Nation’s non-membership in the club of traditional subjects of international law.31 According to this view, colonial powers regarded the Herero as a mere object of their colonial will, which lacked the equal footing necessary to establish reciprocal legal relations of rights and obligations.32 For this reason, it is questionable how far a recognition of the Herero Nation by the German Empire can successfully prevail in principle.33

                                          The Herero Nation as a State: Disagreement and its Implications

            These considerably differing assessments of the Herero Nation’s statehood show that black-and-white thinking in this regard is misleading. The failure to appreciate decisive categories that lay between the assumption of a full subjectivity of the Herero Nation and a complete lack thereof under international law is likely to ignore grounds for German state responsibility34 and Herero reparation claims that come with the acknowledgment of partial admission of the Herero’s international legal personality. This influence shall be given attention, with two examples of rights and obligations conferred by contemporaneous treaty and customary international law.35

            “[I]nternational legal prohibitions against some forms of genocide, such as wars of annihilation, developed long before 1951 and were embedded in both treaty and customary law by the late nineteenth century. An analysis of international law during the early twentieth century shows that the war of annihilation waged by the German colonial administration against the Herero Nation violated several treaties to which Germany was a signatory, as well as the customary law of the period.”36 The character of the Herero’s personality under international law determines whether these acts were contemporaneously wrongful acts, hence whether they formed bases for reparation claims.

  Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1984. One potential ground for reparation claim is based on accusations of a breach by Imperial Germany of the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field 1864.37 Especially Article 6 should deserve appreciation: “Wounded or sick combatants, to whatever nation38 they belong, shall be collected and cared for. […]” When one considers the Herero Nation to be recognized, at least partially39 as such, it is possible to construct the case of a violation of this and other provisions40 by Imperial Germany since the recognition would serve as a prerequisite for the conferral of rights and obligations upon the Herero41. A breach would be an internationally wrongful act for which reparations may be claimed under provisions of state responsibility.

            On the other side, it is argued that one needs to distinguish between legal subjects bound by the Convention and the beneficent legal objects thereof, to which the content applies but upon which no rights were conferred. The case is often made along the latter line of thought, by which no binding force of the convention upon the Herero can be conceived, solely by the fact that they were not a party thereto. Furthermore, they neither signed it nor the possibility of third-party character42 is acknowledged. The question whether Article 6 could be interpreted independently of the nation’s status of signatory, is ruled out a priori by the allegation that the Herero were only objects of protection, the violation of whose rights is only governed by the legal relations among the state parties to the convention and therefore cannot be used as grounds for reparation claims.43

            It becomes evident that these two differing views of the Herero’s standing in international law at that time have a considerable impact when determining causes of action for reparation claims.

            Hague Convention (II) on the Laws and Customs of War on Land of 1899. Another potential, even stronger and more prominent basis for the Herero People’s reparation claims is a breach of Imperial Germany of the Hague Convention on the Laws and Customs of War on Land. This international agreement is often argued to be a codification of pre-existing customary laws of war.44 The different views of the Herero People’s status as a partial subject under international law already lead to questions of applicability of customary international law towards them. If one regards the Herero as an “uncivilized people” that cannot reach a status higher than a mere object of international law and the legal relations with which were not governed by European international law, one might conclude that customary law should not have been applied to the Herero people. The opposite seems to be true when a certain subjectivity under international law is assumed, or at least a degree of legal personality short of a state character.45 A similar interpretive variance can be outlined regarding the convention itself.

            A branch of scholars argues that even though the Herero Nation has neither been represented at the Hague nor signatory to the Convention, it could be “[…] interpreted to represent principles of international law” thereby stating that “its rules should apply to the Herero genocide, since the Herero had not relinquished their full sovereignty as of 1904.”46 This viewpoint needs to be interpreted, though disputable, as an appreciation of the subjectivity of the Herero under international law, consequently as an acknowledgment of their state character.47 If one shares this interpretation, especially Article 23b of the 1899 Hague Regulations would confer rights and would constitute a basis for reparation claims regarding the genocidal acts pursued by Imperial Germany48. The Herero’s non-membership in the exclusive circle of European nations concluding treaties among themselves based on assumptions of superiority and non-reciprocity, which was the reason for the Herero’s (and many others’) lack of representation at the Hague, shall not mean that laws of war did not pertain to non-or partial-subjects under international law.

            This particular opinion has been subject to debate. Many legal scholars do not acknowledge the Herero’s identity as a partial subject under international law, thereby ruling out the possibility to regard the 1899 Hague Convention to be applicable in the Herero’s reparation case. Their argument goes as follows: If Article 2 of the Hague Regulations, which states that “[t]he provisions […] are only binding on the Contracting Powers, in case of war between two or more of them” is strictly interpreted and no subjectivity of the Herero is assumed49, it has been concluded that the military actions against the Herero cannot have been a war in the sense of the convention50. Furthermore, not being a signatory thereto, neither obligations nor any rights were conferred on them. Thus, even if a breach of the Convention is assumed, the wrongfully acting state could only be held accountable towards other signatory states or the community of nations as a whole. Since the interpretation does not consider the Herero as a nation belonging to that community, no legal effect could be constructed51, even though Imperial Germany declared the status of war on May 19, 1904, for the territory. While it is argued, that this had been done to quickly mobilize additional troops to overthrow the Herero and cannot be seen as an official declaration of war because of the lack of certain formalities52, the author claims that it shows at least a certain confusion on the German side regarding the status of the Herero, if not an implicit recognition as a belligerent nation.

            Having considered both sides of the argumentation, it is evident how important, though difficult, the influence of the varying interpretations of the subjectivity of the Herero Nation under international law is when determining grounds for reparation claims based on illegal acts breaching contemporaneous international law. While it seems not easy to recognize the Herero Nation at least partially as a subject of international law short of statehood, the structure of the international legal system does not leave much space for the (mis)interpretation of legal effects thereof. However, especially assumptions of state-like organization of the Herero Nation, the issue of sovereignty and signs of recognition may not be overlooked or trivialized.

                                                                                                 Conclusion

            Hinz recently wrote, “[…] politics does not end where the law ends”53. The recent claims by the Herero and the Namibian government show that a different formulation might be possible: The law should not end where politics end. The foregoing analysis has shown the need for an objective legal assessment of the case, especially with regard to whether and to what extent the Herero People existed as a subject of international law with legal personality when looking at the cruel history of that former Nation. This need has been proven by showing how the considerable variance of legal interpretation of the Herero’s subjectivity under international law influences whether, at the time of the genocide, there existed rights applicable to the Herero Nation, which may serve as grounds for reparation claims. 

            When looking at the latest failed attempt by the Herero People to litigate against Germany before a national court, it becomes clear once more that suing a sovereign state before a national court is difficult, especially in the US, where the Foreign Sovereignty Immunities Act (FSIA) so far has protected Germany from Herero claims. Even though the key issue, in this case, has been the failure of the plaintiffs to sufficiently argue for a statutory exception of the FSIA, the question of international legal personality still influences the causes of action to compensate for the gravamen, i.e. the land grabbing and destruction of livelihood of the Herero Nation in the course of the genocide – in fact it might determine future litigations. Although Judge Swain at the Southern District Court of New York pointed out that “strong moral claims are not easily converted into successful legal action”54, the question remains whether there is any chance for successful legal action as long as the Herero People cannot establish that they have been a subject of international law at the time of the genocide. In order to give an outlook, the author proposes to consider some alternative avenues of action.

            First, Namibia could follow suit on their plans to join the Herero in their litigations against Germany. Even though the legal character of the Herero would then be secondary, the likelihood of successful litigation seems to be increasing.55 Such litigation would likely take place before the ICJ where, for the first time, two sovereign subjects of international law would argue over the faith of the Herero People’s reparation claims before an international judicial body.

            Secondly, it would be worthwhile to extend the legal analysis to the Herero People’s status of an indigenous people56 in the sense of an object of international law. Already in the 19th century, certain rights and obligations had been conferred onto the Herero as indigenous people, for example by the General Act of the Berlin Conference on West Africa.57 Article 658 may be read as an obligation of the colonial powers to protect and preserve indigenous people while recognizing existing legal structures. It proves the “express intent of the signatory governments”59 to protect indigenous African populations and created binding international law.60Under the assumption that the Herero Nation was effectively a third party to the General Act, a reparation claim could be possible thereupon, since the convention intendedly and non-dissentingly applied to them and prohibited a war of annihilation against indigenous peoples.61 Once again, the perception of the subjectivity and sovereignty of the Herero Nation becomes a plaything of legal interpretation.

            Recent developments in international law seem promising with regard to the reemergence of indigenous peoples as subjects of international law.62 Since 2007, “indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures […]”63. Letting Namibia represent the Herero in a potential future litigation64 and preventing a continuing exclusion of the Herero from political negotiations with Germany65 would be one – even though not the ideal – way forward in light of the lacking recognition of the Herero People as a subject of international law. Promisingly, “[…] there is no rule of public international law that would prevent negotiations that follow new avenues and include such non-state actors to deal with a burden of heritage, which is seen to be a burden of injustice by almost everybody, in a way that strives for a commonly accepted solution.”66

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                                                                                              ENDNOTES:

 

[1] Germany’s colonial enterprise in nowadays’ Namibia lasted from 1884-1919 (Anderson, 2005). For a detailed history consult Drechsler (1980) or Eicker (2009).

[2] Immanuel & Kahiurika (2017)

[3] Cooper (2007: 114).  Steinmetz (2005) refers to the Herero Genocide as the first genocide of the 20th genocide.

[4] Genocide is defined in Art. 2 as:

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

[5] For an overview of the usage of the terminology see Deutscher Bundestag (2015). Further evidence that the term genocide may be used for earlier historical acts constituting genocide according to the Genocide Convention see also United Nations General Assembly (1946) and Whitaker (1985). The plaintiffs in the complaint Rukoro, Frederick, The Association of the Ovaherero Genocide in the USA Inc., & Veraa Katuo v. Federal Republic of Germany argue that the definition of genocide even includes the systematic expropriation of lands and cattle (McCallion, 2017, para. 18).

[6] See for example Anderson (2005).

[7] The concept is based on common law, natural law and international law (Bergman, 1927).

[8] Harring (2002) claims that the Herero’s demand for reparations for genocide “is based on broader rights in international and natural law and therefore may provide a better chance for success” (396). Korman (1996), as cited in Harring (2002: 396) sees no basis for reparation claims regarding land expropriation because under the colonial law of conquest, “the German conquest of their lands provides a legal basis for German land ownership”.

[9] Harring (2002)

[10] Eicker (2009)

[11] Harring (2002)

[12] McCallion (2017); Vekuii Rukoro et al. v Federal Republic of Germany [Opinion & Order] (2019, March 6).

[13] See for example Immanuel & Kahiurika (2017) who even talk about the possibility to bring the case revolving around human rights violations on eight grounds before the International Court of Justice. Before 2017, the government of Namibia did oppose reparation claims for this reason that no single indigenous people should exclusively demand reparation for themselves. The reasoning behind this is the attempt to prevent the societal structure of nowadays’ Namibia, which incorporates different tribes politically, from being threatened by internal tribal struggles. However, it can be argued that this reasoning is unjustified and should not lead to a denial of the Herero’s right to demand reparations (Harring, 2002).

[14] Crawford (2014: 115) defines a subject of international law as “[…] an entity possessing international rights and obligations and having the capacity (a) to maintain its rights by bringing international claims, and (b) to be responsible for its breaches of obligation by being subjected to such claims.”

[15] Harring (2002: 409).

[16] Deutscher Bundestag (2016).  See also D’Amato (1992: 1235) who describes intertemporal law as „a well-settled principle of law contemporaneous with the acts in the distant past, and not present rules of law, control their legal significance. […] Clearly, when changes occur in rules of international law, the changes are normally expected to apply prospectively and not retroactively.“ This so-called principle of non-retroactivity is usually referred to as the doctrine of intertemporal law. It is interesting to note that in the preparation of the World Conference against Racism in Durban 2001 Eicker (2009) sees a softening of the intertemporal character of law in areas like slavery and colonialism. Nevertheless, no consensus has been reached to consider a retroactive effect of acts which could constitute crimes against humanity nowadays.

[17] The doctrine of intertemporal law necessitates the assessment of the Herero’s subjectivity under international law and the rights/obligations at the time of the historical events to go back to the end of the 19th century.

[18] See for example Anderson (2005) or Eicker (2009). It is important to note that the system of international law was determined by a two-fold character – the European international law and overseas international law which stood in an unequal relation to each other whereby the former assumed superiority over the latter. This means that a recognition of state as a subject of international law in the sense of overseas international law did not automatically lead to the recognition thereof as a subject under European international law. A contradicting theory, as proposed by Bluntschli (1878), claims that international law has been universal law at that time that covers also national collectivities, which are not (yet) a state but still possess partial subjectivity under international law apart from a lack of legal personality under international law. Eicker (2009) shows how under that theory the Herero can derive from its character as a group a legal personality under international law and rights pursuant thereof, especially in cases where international law is needed to protect general human rights.

cf. Montevideo Convention on the Rights and Duties of States (1934, art. 1)

[19] See for example Eicker (2009).

[20] Anderson (2005: 1181).

[21] Anderson (2005). For a more extensive historical overview of the societal and political organization of the Herero Nation see, among others, Eicker (2009) and Drechsler (1980).

[22] Eicker (2009). The contradicting theory of unclaimed sovereignty regards indigenous people as unable to form state-like structures, which not only would deny them the recognition as a subject of international law due to their perceived inferiority to European colonial powers (the classical subjects of international law at that time), but it would also render their territory terra nullius ipso facto. Not only is the morality of this theory unquestionably undermined by racial discriminatory thoughts of inferiority, but also state practice at the time could not proof this theory to be conclusively followed.

[23] „According to the State practice at that period, territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius: in their case sovereignty was not generally considered as effected through occupation, but through agreements concluded with local rulers.” (Western Sahara [Advisory Opinion Summary] [1975]). See also Western Sahara [Advisory Opinion] [1975]: 39, para. 80, which specifies that these agreements with local rulers were regarded derivative roots of title.

[24] Eicker (2009).

[25] See supra note 29.

[26] Anderson (2005).

[27]See for example Harring (2002). Especially, articles III and IV of the Treaty of Protection and Friendship with the Hereros, October 21, 1885, serve as an evidence for the internal sovereignty of the Herero Nation, represented by Maharero who was seen responsible for taxation, litigation, and legislation. An exception had been made with regard to the secession of territory, a treaty including which could not be made with a third country without Imperial Germany’s consent and with regard to the jurisdiction over German nationals in case of disputes. Nevertheless, German nationals were obliged to subsume under the Herero’s control in almost all regards except for disputes arising among them.  This argumentation that a treaty of protection does not transfer territory as long as it does not expressly include such a provision can be sustained by a dissenting opinion by Judge Koroma in Land and Maritime Boundary between Cameroon and Nigeria. This means the sovereignty of the indigenous people has not been ceded. Any other view “[…] would also be contrary to the rule of pacta sunt servanda (the sanctity of treaties), a rule which forms an integral part of international law and is as old as international law itself. In other words, it is impossible for a State to be released by its own unilateral decision from its obligations under a treaty which it has signed, whatever the relevant method or period.” (Art. 15). This argumentation could be applied as well to the protection treaty concluded between the Herero Nation and Imperial Germany. Similarly, Judge Ranjeva in his separate opinion argued that “ […] it is difficult, without recourse to legal artifice, to justify that a protected entity could consent to being dispossessed of its legal personality or of its territory. […] The destruction of international personality is procured by an act of force: through debellatio or under an agreement between equals. But to contend that an international personality has disappeared by consent is verging on fraud. Application of the rules of intertemporal law cannot justify conclusions so contrary to fundamental norms, not even on the basis of the special nature of relationships with indigenous chiefs” (Art.3). See also Hinz (2003)

[28] Anderson (2005: 1180). Anderson specifically writes that „[…] a state may partially limit its jurisdiction by concluding treaties with other states.” Rights and duties that can be conferred on other subjects of international law “could include jurisdiction over its nationals in the signatory nation’s territory and the obligation to provide military aid” (1180).

[29] Art II of the Protection Treaty reads: „The Head Chief of the Hereros undertakes not to transfer his country nor any part of it to any other nation or subjects thereof, without the consent of His Majesty the German Emperor, nor to ratify any Agreements with other Governments without such consent.”

[30] In Island of Palmas, it is argued that a treaty of this kind „is not an agreement between equals; it is rather a form of internal organization of a colonial territory, on the basis of autonomy of the natives […] And thus suzerainty over the native States becomes the basis of territorial sovereignty as towards other members of the community of nations” (RIIA, Vol. II: 858-859).

[31] See for example art. 207 para. 1 Land and Maritime Boundary between Cameroon and Nigeria. Furthermore, the separate opinion of Judge Ranjeva sheds light on this issue: “The criterion of ‘civilized nation’ represented the qualifying condition in order to be accorded the juridical status of international subject. Without formal recognition of sovereignty on the part of the civilized nations, traditional indigenous societies, African societies in particular, did not have the status of subjects of international law, even where their territory was not necessarily res nullius, […].” (Art. 2)

[32] The German Constitutional Court ruled in 1958 that ideological (e.g. superiority of races, hegemonic thinking, “Herrenmenschentum”) motivations and ideas about political and social order cannot serve as justification strategies for colonial acts (BVerfG 2BvR 557/62 1. Leitsatz). While this guiding principle has been formulated in the aftermath of National Socialism, Deutscher Bundestag Wissenschaftliche Dienste (2015) argues that it is applicable to the Herero Genocide as well. Consequently, these ideological considerations cannot be award the status as legal norms because this would constitute a breach of fundamental principles of equality and therefore is to be seen as automatic injustice (BVerfG 2BvR 557/62 1. Leitsatz). For further information regarding the formation of the ideology used in times of National Socialism already during the colonial era and the parallels of reparation claims of the Herero, as well as Jewish victims of the Holocaust see Harring (2002).

[33] Eicker (2009). This underlines the fact that having the character of statehood, which was also possible for a “race of savages”, is only to be analyzed in empirical terms external to international law. “International Law takes a state as it is and where it is.” (Gareis, 1888: §13; translated) However, this does not mean automatic recognition as a subject of international law. Furthermore, it is stated in the judgement in Land and Maritime Boundary between Cameroon and Nigeria that “[i]n sub-Saharan Africa, […], treaties termed ‘treaties of protection’ were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory” (art. 205, para. 2).

[34] See ILC Draft articles on Responsibility of States for Internationally Wrongful Acts (2001), which can be seen as a codification of largely uncontested customary international law. In short, a state is made responsible for any breach of obligations conferred on them by international law and must pay reparation, which can take different forms. This principle already existed as a custom at the beginning of the 20th century (Schoen, 1917).

[35] A full consideration of each example with regard to its rich historical context and embeddedness in complex legal and political relations cannot be achieved within the scope of this paper. The author acknowledges these limits and arising risks of overgoing intervening factors. Nevertheless, the examples attempt to serve its purpose to show the importance of perception of the Herero’s subjectivity under international law.

[36] Anderson (2005: 1158). Anderson further argues that it is unwise to only look at the treaties of protection to address the illegal character of certain types of genocide under international law. Moreover, also Cooper (2007) comes to the conclusion that some forms of genocide and/or war crimes were outlawed by pre-existing treaty law. The plaintiffs in the current case before the Southern District Court of New York (McCallion, 2017) claim that the intended “war of annihilation” constituted genocide and violated contemporaneous positive and customary international law on several grounds. These violations include systematic mass killings, rape and sexual abuse of women and children, the unlawful taking of lands, cattle and property without compensation, the exploitation of surviving Herero into concentration camps, where they were exploited as slave and forced laborers, as well as inhumane medical experimentation. See also Harring (2002: 401).   Eicker (2009) argues against this position. According to him, there is no evidence of a prohibition of genocide as interpreted in Art. 1 and 2 Genocide Convention to be found in customary international law around 1900.

[37] This Convention is the first of the four prominent Geneva Conventions. Imperial Germany became signatory to the treaty in 1906.

[38] Emphasis by the author.

[39] See argumentation above.

[40] Especially Articles 4 and 5.

[41] Hinz (2002) argued in an interview that such a breach of the 1864 Geneva Convention could be conceivable.

[42] The third-party beneficiary doctrine of international law shall be taken note of. “A third party is ‘a subject of international law [such as a state] which has not subscribed to the agreement.’” (Ballreich, 2000, as cited in Anderson, 2005: 1178). When third parties are not signatories to the agreements or treaties to which the doctrine applies, they are generally not affected by them. Pacta tertiis nec nocent nec prosuntis describes this rule that says: “A treaty does not create either obligations or rights for a third State without its consent” (Vienna Convention on the Law of Treaties, Art. 34).

[43] Deutscher Bundestag Wissenschaftliche Dienste (2016)

[44] See for example Harring (2002) or Anderson (2005). With reference to Wheaton (1889 [1836]) it is arguable for Anderson (2005) to write that “[i]nternational law generally prohibited the use of force at the end of the nineteenth and the beginning of the twentieth century. However, under the laws of war, necessity provided a limited exception to this general prohibition. Specifically, the use of force against persons in war was restricted to the amount of force necessary to achieve the ‘just ends of war’ such as may be necessary to secure the object of hostilities or defeat the enemy's resistance” (1170). Certain forms of force, the killing of children and elderly men and women, rape and torture were generally prohibited already in the 19th century. The same applies to the treatment of prisoners of war which were protected by certain customary laws developing during the 1870s.

[45] Anderson (2005).

[46] Shelton (2003: 268) as cited in Cooper (2007: 122-123). A confusion might arise as to when the relinquishment of sovereignty took place as an effect of the Herero’s cessation to exist as an independent nation. Scholars who argue that this has been the case already in 1904, base their claim on the suspension of the protection treaty with the onset of the military actions in 1904. It is claims that the German Imperial colonial system replaced any legal relations, if acknowledged, between Imperial Germany and the Herero. Nevertheless, the author could not find evidence of a formal notification of suspension, nor a successive treaty taking over the 1885 Treaty of Protection and Friendship. Therefore, other scholars argue that the loss of sovereignty only occurred after the majority of military actions had taken place, in 1907.

[47] Eicker (2009).

[48] Art. 23b of the Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land of 1899 reads: “[…] [i]t is especially prohibited […] (b) [t]o kill or wound treacherously individuals of the hostile nation or army.” Furthermore, violations of Articles 4, 7, 46 and other provisions of Article 23 can be constructed in a similar manner (Harring, 2002).

[49] For example, Deutscher Bundestag Wissenschaftliche Dienste (2016) clearly states that indigenous peoples have been denied recognition of any state character, hence any kind of subjectivity under international law.

[50] Eicker (2009) explains the understanding of war under contemporaneous customary and treaty law to acknowledge only military actions between sovereign states, i.e. armed conflicts among independent subjects of international law. If subjectivity under international law is denied and it is furthermore assumed that the territory of the Herero people was part of Imperial Germany and its international legal personality, a war in the sense of the convention did not take place.

[51] Deutscher Bundestag Wissenschaftliche Dienste (2016)

[52] Id. Those formalities include a declaration of war towards the inimical party, an ultimatum for surrender, as well as a certain diplomatic ceremonial.

[53] Hinz (n.d.: 21).

[54] Vekuii Rukoro et al. v Federal Republic of Germany [Opinion & Order] (2019, March 6): 6

[55] Previously it has been stated by Harring (2002: 414) that “[…] because the Government of Namibia opposes Herero reparations, this opposition is likely to undermine the possibility of the Herero ever collecting any reparations from Germany.”

[56] Indigenous peoples can be defined as “[…] those which having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems” (Martínez Cobo, 1986/7: para. 379).

[57] Signed February 26, 1885 by Imperial Germany. As Anderson (2005) shows, treaties including elements of humanitarian law and fundamental rights existed already since the onset of the 19th century to a certain degree. She argues that besides the General Act of the Berlin Conference on West Africa, there were other pre-existing treaties in place that included obligations towards colonized peoples in Africa. This evidence of intended recognition and protection of indigenous peoples is found in various treaties concluded in the late 19th century/early 20th century, most notably: 1899 German-Dutch Agreement, 1890 German-Belgian Agreement to Criminalize Trade in Girls, 1904 Agreement on Administrative Regulation to ensure Effective Protection Against Trade in Girls, as well as the 1815 Second Paris Peace Agreement and 1841 Quintuple Treaty which both aimed at criminalizing trade in human beings. She concludes that “[a]n analysis of historical sources of customary international law shows that from 1884 to 1915, European powers had obligations to colonized peoples both under natural law (humane, ethical, moral, and religious duties) and under positive law (treaties such as the Berlin West Africa Convention, the General Act of Brussels, and the Hague Convention on the Laws and Customs of War on Land)” (1169).

[58] “All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave trade. They shall, without distinction of creed or nation, protect and favour all religious, scientific or charitable institutions and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilization. […]”

[59] Anderson (2005: 1176)

[60] „In other words, the parties expected peoples such as the Hereros to benefit from these agreements. Further, the protocols of the Berlin West Africa Conference lend substantial support to this interpretation”. (Anderson, 2005: 1178). The European power were obliged to “protect the moral and humanitarian interests of colonized peoples. These interests included (1) protection of the indigenous people of Africa from destruction and annihilation, (2) prohibition of the trade in human beings, and (3) preservation of freedom of religion among Christian denominations” (Anderson, 2005: 1167).

[61] Under the third-party beneficiary doctrine of international law, “[a] right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right […] to the third state […] and the third state assents thereto.” (Vienna Convention on the Law of the Treaties, art. 36). The tacit agreement shall be presumed since the Herero Nation, being characteristic of a sovereign state, “did not affirmatively oppose the conferral of third-party beneficiary status […]” (Anderson, 2005: 1184).

[62] Barsh (1994: 86). Furthermore, he states that „[…] indigenous peoples are gaining recognition of their legal personality as distinct societies with special collective rights and a distinct role in national and international decision-making” (34).

[63] UN Declaration on the Rights of Indigenous Peoples (2007, art. 18)

[64] McCallion (2017). Also Harring (2002: 410) writes that “[…] it also makes no sense to require that some modem state represent the interests of a victimized people.” The Namibian government should not be regarded as a successor of the Herero Nation.

[65] Rather, Germany preferred to negotiate only with the Namibian government thereby acknowledging their special responsibility by paying huge amounts of development aid that not always reached the Herero people.

[66] Hinz (n.d.: 21).

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                                                                                                                REFERENCES

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                  ihre Durchsetzung vor einem nationalen Gericht. In: Gornig, Gilbert: Band 80 von Schriften zum internationalen und

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