We talk about the reasons why these genocide cases haven’t been successful so far. Has Germany recognised that what happened in Namibia between 1904 and 1906 was ‘genocide’? She explains the overall position of the German government – yes, they agree that what happened to the Herero and Nama would be described as ‘genocide’ in today’s language, but there is a paramount legal issue here. The term ‘genocide’ has only existed since 1948, so it has only had legal force from this date, when the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. So Germany is arguing that it cannot be held legally accountable for a crime which did not exist in international law when it was committed. Although in one way this seems a very cynical position, we agree that it does raise complex legal questions.
We move on to discussing some of the wider issues surrounding the Namibian genocide. Are there any examples of countries being pursued in law successfully for human rights violations or genocide? Yes, there are precedents, she says, particularly cases brought to the Inter-American Court of Human Rights. There have also been successful prosecutions for human rights violations against Guatemala and Paraguay, in which those countries had to pay reparations to victims’ families; they also had to change their laws so that any repetition of these human rights abuses would be recognised as crimes. She starts to talk about the work of the International Criminal Court in the Hague, and tells me that one of the ICC’s real limitations is that it is only able to prosecute individuals, and not national governments or corporations.
At the end of our conversation we move on to the way that the political and legal debate about reparations has developed over the last thirty years or so. We remember the Labour MP Bernie Grant, who spoke out in favour of reparations for slavery in the 1980s, and was attacked and ridiculed by many at the time. Well, as Gandhi said, ‘first they ignore you, then they laugh at you, then they fight you, then you win’.
There are two purposes to the case the barrister is exploring. The first is to find a way to obtain significant legal and financial redress for the descendants of those murdered. But this is about more than money. The second purpose is to achieve a number of broader goals: the recognition of what happened, the assumption of responsibility, the apology. Particularly since part of the whole problem has been that for so long the reigning paradigm of international law – ‘legal positivism’ – the creation and construction of the West, failed to recognise indigenous peoples as possessing equal rights and legal status. There are new historical narratives to create – to achieve meaningful change in cultural and educational terms. And, of these two objectives, she says, perhaps the second is even more important than the first.
I wish her luck in the fight to come. Many people around the world will be watching.
*
Although the majority of the Herero were dead by October 1904, this did not stop von Trotha’s obsessive quest to continue the extermination. Some Herero had not gathered with Samuel Maharero at Waterberg, perhaps as many as 20,000–25,000 lived in isolated settlements in the north and west of Hereroland, and hadn’t taken part in the uprising at all. Throughout the autumn of 1904 and the whole of 1905, von Trotha ordered the German patrols to seek out all Herero, wherever they were, and shoot on sight. A soldier in one of these patrols stated that they were told to ‘shoot, kill, hang. Whatever you liked. Old or young. Men, women, children.’ The motto of these patrols was ‘Clean out, hang up, shoot down, till they are all gone.’ Eyewitnesses recall sick Herero women being burnt alive in their huts and mass shootings of villagers. At the end of October 1904, at Ombakaha nearly seventy Herero were massacred, after having been given assurances of safe surrender.
It is impossible to know exactly how many Herero were killed between 1904 and 1905, in the period of von Trotha’s eighteen-month reign of terror in South-West Africa – Cocker estimates that between half and three-quarters of Herero died at this time: that is to say, between 40,000 and 60,000 men, women and children; Lindqvist suggests that almost all of the 80,000 Herero perished, but this seems to be an overestimate. But we do know that in autumn 1904 von Trotha wrote to Leutwein admitting that he hadn’t succeeded in destroying the Herero completely. Leutwein, who had been strongly opposed to von Trotha’s exterminist policy (not so much on grounds of humanitarianism but more, as he saw it, a waste of manpower and economic potential), was removed from his post as governor at the end of 1904, and left the colony after eleven years.
But a problem remained: what to do with any remaining Herero? By Christmas 1904, this issue was being discussed in Berlin by the Chancellor and the Kaiser, and senior officials in the Colonial Department. In January 1905 orders were sent to von Trotha to establish a number of Konzentrationslager (concentration camps) along the lines of those the British had established in the Boer War, just three years earlier. But in addition to these camps there should also be work camps, so that forced labour would benefit the colony. Von Trotha did not welcome this shift in policy, and for a period the German patrols continued their killing, but gradually he was forced to accept the surrender of the surviving Herero. By February and March 1905, hundreds and then thousands of Herero who had managed to survive began to give themselves up:
They emerged like ghosts from the Omaheke and the distant corners of Hereroland. They dragged themselves into the German towns of Omaruru, Karibib, Windhoek and Okahandja. Most were women and children, and all were in an appalling state of advanced malnutrition … a missionary … described the Herero who arrived … as being ‘mere skeletons covered by a thin film of skin’. Unsure how to deal with this influx, most settlers stood aside and watched as malnourished Herero died on their streets.
But, eventually, those who survived were transported to another fate. The first use of cattle trucks to take human beings to concentration camps occurred in South-West Africa in February 1905. Five such camps were established – sited at Windhoek, at Karibib, at Okahandja, and then two situated just outside the ports of Swakopmund and Luderitz. Surviving German records tell us that at their heights these camps held 14,769 people. Conditions were appalling. A missionary based at Swakopmund, Heinrich Vedder, reported on the camp and the condition of the prisoners: ‘Their clothing had long since been torn to tatters. Men and women without went about in sacking, their only protection from the cold. Many got inflammation of the lungs and died. During the worst period an average of thirty died daily.’
Within the first four months, 40 per cent of the prisoners at Swakopmund died. On top of the non-existent clothing and totally insufficient rations, inmates were used on forced-labour projects like working on the harbour jetty and walls, laying railways, constructing buildings. Often the women were used, in teams of eight, instead of oxen or horses, to pull heavy loads on the railways. In another direct echo of what happened forty years later across the Reich, prisoners were also hired out, at daily rates of fifty pfennigs, to German companies such as the Woermann Shipping Line. All income generated went into the colonial government. To keep track of all the prisoners, they were issued with metal identification tags; von Trotha thought this system inefficient, and suggested marking the inmates permanently with their numbers, whether by branding or tattooing he never made clear. This idea was not used, but it had been conceived; it took another thirty-seven years for tattoos to be used on human beings in the Third Reich.