Germany’s Colonial Policy in German South-West Africa in the Light of International Criminal Law

Abstract

The debate over whether Germany’s colonial policy toward the Herero and Nama constituted genocide suffers from two basic shortcomings: authors who are proficient in international criminal law (ICL) often have difficulties in getting the historical facts right, and historians with a good knowledge of primary sources lack knowledge about the evolving definition of genocide in ICL. As a result, the authors of many articles and books concerning the German atrocities committed against the Herero and Nama at the beginning of the 20th century either do not apply any precise definition of genocide at all or they quote the definition derived from the Convention for the Prevention and Punishment of Genocide, but without including the comprehensive jurisprudence about genocide that has emerged from international criminal tribunals. Because social science and history have not elaborated an undisputed and precise definition of genocide, this article proposes to apply the relatively narrow and precise ICL definition of genocide to the events in Germany’s South-West African colony at the beginning of the 20th century. This method sheds new light on some neglected aspects of Germany’s policy toward the Herero and Nama, which suddenly appear more important than those that until now have most frequently been regarded as genocidal.

Acknowledgements

Research for this article was supported by a grant from the Polish National Research Centre (Narodowe Centrum Nauki), no. DEC–2012/07/B/HS5/03674 (‘Intencjonalizm lub funkcjonalizm – dynamika polityki eksterminacyjnej Niemieckiej Rzeszy wobec Herero’/Intentionalism or functionalism – the dynamics of the German Empire’s extermination policy towards the Herero). The author would like to thank the staff of the Federal Archive (Bundesarchiv), Lichterfelde, the State Library (Staatsbibliothek), Berlin, the Library of the University of Stellenbosch and the staff of the National Archive of Namibia in Windhoek for access to the files and documents quoted in the article.

Notes

¹ J. Zimmerer, Von Windhuk nach Auschwitz? Beiträge zum Verhältnis von Kolonialismus und Holocaust (Münster, Lit Verlag, 2011); H. Drechsler, Südwestafrika unter deutscher Kolonialherrschaft. Der Kampf der Herero und Nama gegen den deutschen Imperialismus (1884–1915) (Berlin, Akademieverlag, 1966), p. 183; M. Wallach (with John Kinahan), A History of Namibia: From the Beginning to 1990 (London, Hurst, 2011), pp. 159–65; J. Zimmerer, ‘Colonial Genocide and the Holocaust: Towards an Archeology of Genocide’, in D.A. Moses (ed.), Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (New York, Berghahn, 2004), pp. 49–79; D. Olusoga and C. Erichsen, The Kaiser’s Holocaust: Germany’s Forgotten Genocide and the Colonial Roots of Nazism (London, Faber & Faber, 2010).

² G. Sudholt, Die Deutschen Eingeborenenpolitik in Südwestafrika. Von den Anfängen bis 1904 (Hildesheim and New York, George Olms Verlag, 1975), p. 187; B. Lau, ‘Uncertain Certainties: The Herero–German War of 1904’, Mibagus, 2 (1989), pp. 1–8.

³ W. Nuhn, Sturm über Südost: Der Hereroaufstand von 1904. Ein düsteres Kapitel der deutschen kolonialen Vergangenheit Namibias (Bonn, Bernard & Graefe Verlag, 1996); H. Bley, Kolonialherrschaft und Sozialstruktur in Deutsch-Südwestafrika 1894–1914 (Hamburg, Leibniz-Verlag, 1968); J-G. Gewald, Herero Heroes: A Socio-Political History of the Herero of Namibia 1890–1923 (Oxford, James Currey, 1999).

⁴ See, for example, Vahakn Dadrian’s definition as reported by A. Jones, Genocide: A Comprehensive Introduction (London and New York, Routledge, 2006), pp. 15–16. Jones provides a whole number of definitions, some of which would make German colonial policy genocidal, while others would not.

⁵ G. Krüger, Kriegsbewältigung und Geschichtsbewußtsein: Realität, Deutung und Verarbeitung des deutschen Kolonialkriegs in Namibia 1904–1907 (Göttingen, Vandenhoeck und Ruprecht, 1999), pp. 62–8.

⁶ J. Sarkin, Germany’s Genocide of the Herero: Kaiser Wilhelm II, His General, His Settlers, His Soldiers (Cape Town, James Currey, 2011), pp. 136–41, provides the most comprehensive overview of the different casualty estimations.

⁷ A.M. Moses, ‘Toward a Theory of Critical Genocide Studies’, Online Encyclopedia of Mass Violence (18 April 2008), pp. 2–4, available at http:/www.massviolence.org/Toward-a-Theory-of-Critical-Genocide-Studies, retrieved 15 January 2015.

⁸ D. Chirot, ‘Traditional Methods of Avoiding Genocidal Slaughter’, Online Encyclopedia of Mass Violence, 30 March 2008, available at http://www.sciencespo.fr/mass-violence-war-massacre-resistance/en/document/traditional-methods-avoiding-genocidal-slaughter, retrieved 17 January 2017.

⁹ See, for example, Zimmerer, Von Windhuk nach Auschwitz?, p. 54; J. Sarkin, Colonial Genocide and Reparations in the Twenty-First Century: The Socio-Legal Context of Claims Under International Law by the Herero against Germany for Genocide in Namibia 1904–1908 (London and Westport, Praeger Security International, 2009), pp. 107–11.

¹⁰ Genocide belongs to the so-called subject matter jurisdiction of the ECCC, but so far the court has not yet issued any judgment concerning genocide. See E.E. Maijer, ‘The Extradordinary Chambers in the Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and Procedure of an Internationalized National Tribunal’, in C.P.R. Romano, A. Nollkaemper and J.K. Kleffner (eds), Internationalized Criminal Courts and Tribunals (New York, Oxford University Press, 2004), pp. 211–15.

¹¹ In ICL, international crimes are crimes which are under the jurisdiction of ICTs, such as genocide, crimes against humanity and grave breaches of the Geneva Conventions (also often called war crimes). They need not cross state borders in order to be regarded as international.

¹² R. Anderson, ‘Redressing Colonial Genocide Under International Law: The Hereros’ Cause of Action against Germany’, California Law Review, 93, 4 (2005), pp. 1155–89.

¹³ This argument does not solve the problem that, notwithstanding violations of Herero rights stemming from whatever treaty, genocide had not yet been codified as a crime in 1904. The article also remains silent about the problem of legal continuity between the Herero then and now. Even if one accepts the argument that the Herero constituted a sovereign state in 1904, it leaves open the question as to whether they can rightly be regarded as a state party today and are therefore entitled to file a lawsuit against Germany. It seems that even the Herero do not agree with that point of view, since they decided to act as a private plaintiff under the US Alien Torts Act and to sue German enterprises rather than the German state. More about the US lawsuits can be found in Sarkin, Colonial Genocide and Reparations, pp. 148–54.

¹⁴ W. Schabas, Genocide in International Law, second ed. (New York, Cambridge University Press, 2009), pp. 178–80.

¹⁵ In practice, this is hardly imaginable, since in such a case no tribunal would be established to judge a genocide that has not taken place.

¹⁶ This criterion of ‘significance’ pertains to the realm of the perpetrator’s intent (mens rea), not to his deeds (actus reus). It is therefore necessary to establish whether he had in mind the destruction of a ‘significant’ number of members of a group protected under the Genocide Convention. This does not mean that it is necessary to establish whether he actually killed such a significant number of group members.

¹⁷ The Prosecutor v. Krstić, ICTY appeals judgment, paragraph 8.

¹⁸ The trial judgement in the Prosecutor v. Jelisić, at the ICTY, and the Prosecutor v. Sikirica, ICTY trial chamber decision on defence motion to acquit (under rule 98 bis).

¹⁹ The Prosecutor v. Mpampara and the Prosecutor v. Ndindabahizi at the ICTR, as quoted in Schabas, Genocide in International Law, p. 179.

²⁰ F. Chalk and K. Jonassohn (eds), The History and Sociology of Genocide: Analyses and Case Studies (New Haven, Yale University Press, 1990), pp. 23–5; B. Harff and T.R. Gurr, ‘Toward Empirical Theory of Genocides and Politicides: Identification and Measurement of Cases since 1945’, International Studies Quarterly, 32, 3 (1988), pp. 359–71. The politicides and some of the (state-organised) genocides that the authors refer to would actually be regarded as crimes against humanity under ICL.

²¹ The difference between Hutu and Tutsi is essentially a functional one between cattle raisers and land owners, but it became institutionalised during Belgian colonial rule, when the different notions were introduced into Rwandan identity cards. From then onwards, it was also possible for foreigners to distinguish between Hutu and Tutsi, but this did not change the fact that both groups’ members do not differ in terms of culture, language, religion, nationality, or race.

²² R.A. Wilson, Writing History in International Criminal Trials (New York, Cambridge University Press, 2011) pp. 170–91.

²³ R.A. Posner, How Judges Think (Cambridge, Mass., Harvard University Press, 2008), pp. 19–124.

²⁴ The Prosecutor v. Bagosora et al., ICTR trial judgment; K. Bachmann, T. Sparrow-Botero, P. Lambertz, When Justice Meets Politics: Independence and Autonomy of Ad Hoc International Criminal Tribunals (Frankfurt, Peter Lang, 2013), pp. 174–9; A. Guichaoua, Rwanda : de la guerre au génocide. Les politiques criminelles au Rwanda (1990–1994) (Paris, Éditions La Découverte, 2010), pp. 573–80.

²⁵ Modes of liability (for example superior or command responsibility and complicity) describe the link between a crime and the perpetrator and are not crimes in themselves.

²⁶ The Prosecutor v. D. Tadić, ICTY appeals judgment, paragraph 196.

²⁷ At the core of the dispute was a trial decision at the ICTY in the Prosecutor v. Karadžić to grant the prosecution leave to correct the indictment and to replace ‘probable’ by ‘possible’ in the description of Karadžić’s alleged liability. Karadžić had opposed the correction on trial. The trial chamber agreed with him, and the prosecution lodged an appeal, which was granted. The appeals decision stipulated that ‘the ICE III mens rea standard does not require an understanding that a deviatory crime would probably be committed; it does, however, require that the possibility a crime could be committed is sufficiently substantial as to be foreseeable to an accused’. Decision on the prosecution’s motion appealing trial chamber decision on JCE 3 foreseeability, The Prosecutor v. Karadžić, 25 June 2009.

²⁸ The Prosecutor v. Brima et al., judgment, SCSL Appeals Chamber (Case No. SCSL-04-16-A), 22 February 2008, paragraph 80. The prosecution was confronted with the dilemma whether attempts to gain control over Sierra Leone by forces of the internationally recognised government could be labelled a common plan as part of a JCE. For a discussion of the issue and the just war argument linked to it, see W. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (New York, Cambridge University Press, 2006), pp. 309–14.

²⁹ At the time the operational indictment against Milošević was drafted, the lower threshold requiring only proof that the JCE consequence was ‘possible’ did not yet apply.

³⁰ H. van der Wilt, ‘The Spider and the System: Milošević and Joint Criminal Enterprise’, in T. Waters (ed.), The Milošević Trial: An Autopsy (Oxford and New York, Oxford University Press, 2013), pp. 484–8.

³¹ On the ambiguity between ICC jurisprudence and ad hoc tribunals’ jurisprudence, see H. Olasolo, ‘Joint Criminal Enterprise and its Extended Form: A Theory of Co-Perpetration Giving Rise to Principal Liability, a Notion of Accessorial Liability or a Form of Partnership in Crime?’, Criminal Law Forum, 20, 2–3 (2009), pp. 263–87.

³² Trial chamber Case File Dossier No. 002/19-09-2007/ECCCITC, Decision on the applicability of Joint Criminal Enterprise, 12 September 2011, available at http://www.eccc.gov.kh/en/document/court/decision-applicability-joint-criminal-enterprise, retrieved 12 December 2014.

³³ J. Sarkin also points to the inclusion of the so-called Martens Clause into Hague 2, which stipulates: ‘[u]ntil a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilised nations, from the laws of humanity and the requirements of the public conscience’, Sarkin, Colonial Genocide and Reparations, pp. 63–70.

³⁴ O. von Weber, Geschichte des Schutzgebietes Deutsch-Südwest-Afrika (Windhoek, Wissenschaftliche Gesellschaft, 2010), pp. 148–50. He describes the events as an attempt to surround and annihilate the Herero at the Waterberg battle and sees the sealing of the desert as a means of avoiding a hunt for the escaping Herero; W. Nuhn, Sturm über Südwest. Der Hereroaufstand von 1904 – ein düsteres Kapitel der deutschen kolonialen Vergangenheit Namibias (Bonn, Bernard & Graefe Verlag, 1996), p. 260, sees it rather as a success for the Herero, who managed to escape, and as a defeat for von Trotha, who ‘had to watch it helplessly’. For Drechsler, Südwestafrika unter deutscher Kolonialherrschaft, pp. 182–3, letting the Herero escape from Waterberg to the desert was part of von Trotha’s plan to annihilate them by starvation rather than by military means.

³⁵ Article 3 of Hague 2 states, ‘the armed forces of the belligerent parties may consist of combatants and non-combatants. In case of capture by the enemy both have a right to be treated as prisoners of war’. This also applies to people who accompany belligerents with the latter’s consent, but do not carry arms and do not take part in the hostilities, as stipulated in article 13: ‘[i]ndividuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers, contractors, who fall into the enemy’s hands, and whom the latter think fit to detain, have a right to be treated as prisoners of war, provided they can produce a certificate from the military authorities of the army they were accompanying’.

³⁶ The latter order was probably meant to relieve the German soldiers from the stress and moral pressure of shooting women and children, but was nevertheless intended to achieve the same goal – the deaths of unarmed civilians. Under these circumstances, the Herero (no matter whether armed or unarmed) had the choice to die in the desert, to be shot at waterholes, or to surrender and become forced labourers. See von Weber, Geschichte des Schutzgebietes Deutsch-Südwest-Afrika, p. 169. The ‘extermination order’, which was later withdrawn, can be found in almost every publication dealing with the Herero uprising.

³⁷ Article 23 of the 1899 Hague 2 Convention states, ‘[b]esides the prohibitions provided by special Conventions, it is especially prohibited: to employ poison or poisoned arms; to kill or wound treacherously individuals belonging to the hostile nation or army; to kill or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion; to declare that no quarter will be given […]’.

³⁸ The Herero had ceased to constitute a military threat to the German forces, but, in August, the uprising of the Nama had started in the southern part of the colony. W. Nuhn, Feind überall. Guerillakrieg in Südwest. Der große Nama-Aufstand 1904–1908 (Bonn, Bernard & Graefe Verlag, 2000), pp. 42–6.

³⁹ The German verb is ‘vernichten’.

⁴⁰ Sudholt, Die Deutschen Eingeborenenpolitik , pp. 184–5; Lau, ‘Uncertain Certainties’, pp. 2–4.

⁴¹ J.L. Wallach, Das Dogma der Vernichtungsschlacht: Die Lehren von Clausewitz und Schlieffen und ihre Wirkung in zwei Weltkriegen (München, Deutscher Taschenbuchverlag, 1970), pp. 23–109.

⁴² The German word used is ‘Knechtung’.

⁴³ Generalstab des Heeres to Reichskanzler von Bülow, 23 November 1904, 12383. Bundesarchiv, Lichterfelde (hereafter BArch), box R1001.2089.

⁴⁴ Drechsler, Südwestafrika unter deutscher Kolonialherrschaft, p. 183; H. Drechsler, Die Kämpfe der deutschen Truppen in Südwestafrika aufgrund amtlichen Materials bearbeitet von der kriegsgeschichtlichen Abteilung I des großen Generalstabes, Erstes Buch (Berlin, Ernst Siegfried Mittler und Sohn, 1906), p. 211.

⁴⁵ Drechsler, Die Kämpfe der deutschen Truppen, p. 193.

⁴⁶ Anderson, ‘Redressing Colonial Genocide’, p. 1162, is wrong here. Hague 2 requires an occupier to conduct a trial before executing POWs (which also means that killing POWs for crimes was not in itself illegal, although the procedures carried out by the Schutztruppe hardly fulfilled any criteria of fair trials).

⁴⁷ Article 2 of the ICTR statute and article 5 of the ICTY statute, as well as article 6 of the ICC statute, all contain the element of ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ as a count of genocide.

⁴⁸ Some officers of the Schutztruppe openly admit the phoniness of these procedures, the only purpose of which was to kill Herero and Nama, whether they had committed atrocities against civilians or not. The diary of Lieutenant Erich von Gilsa describes a scene from the war against the Nama, describing exhausted Nama and Herero, coming to waterholes held by the Schutztruppe and asking for water, who were immediated court-marshalled and shot. Knowing about the practice, many claimed to be Bushmen. P. Spätling (ed.), Auf nach Südwest: Kommentiertes und illustriertes Tagebuch eines Leutnants über seine Erlebnisse in Deutsch-Südwestafrika 1904/1905 (Barleben, Docupoint Verlag, 2014), p. 10.

⁴⁹ Article 6 of Hague 2 describes the rights of POWs with regard to labour and requires the relevant authorities to use their remuneration (if it is not directly paid to the POW) for the benefit of the prisoners: ‘[t]he wages of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance’. According to Hague 2, POWs have the right to work if they wish to, but cannot be forced to work and can under no circumstances be forced to work for the military or for military purposes.

⁵⁰ L. von Estorff, Wanderungen und Kämpfe in Südwestafrika, Ostafrika und Südafrika 1894–1910. Hausgegeben von Christoph-Friedrich Kutscher (Wiesbaden, Wiesbadener Kurier Verlag, 1968), p. 135. Von Estorff was appointed commander of the Schutztruppe and later transferred the starving and ill Shark Island prisoners to the mainland. The correspondence between von Estorff, the Gouvernement in Windhuk, and the government in Berlin about Shark Island and other camps is stored in BArch box R 1001.2040 and in the National Archives of Namibia in Windhoek, in the confidential political files concerning the Witbooi and Nama war (politische Geheimakten), in the files ZBU 2369 VIII G, VIII H and BLU 48 G3R (files from the Lüderitzbuch administration concerning the food supplies and housing conditions on Shark Island).

⁵¹ Oberstleutnant von Estorff an Schutztruppe, Berlin, 10 April 1907. BArch R 1001.2140.

⁵² J. Zimmerer, Deutsche Herrschaft über Afrikaner. Staatlicher Machtanspruch und Wirklichkeit im kolonialen Namibia. (Berlin, Münster, Wien, Zürich and London, Lit Verlag, 2001), pp. 31–55, 126–47, 176–82.

⁵³ Correspondence between Ziemann and the Schutztruppe in Duala, Cameroon, June–July 1910, in BArch R1001.2090.

⁵⁴ Kaiserliches Gouvernement von Kamerun to Staatssekretär des Reichs-Kolonialamtes, Buea, 8 October 1910, Bericht 1193, in BArch R1001.2090.

⁵⁵ According to a report from the medical station of the 8th company of the Schutztruppe in Dschang, in September 1911, 25 out of 67 had already died of tuberculosis. Sanitätsdienststelle der 8 Kompagnie, 14 September 1911, in BArch R1001.2090.

⁵⁶ Bericht des Kaiserlichen Gouverneurs von Deutsch-Südwestafrika vom 23 September 1913, in BArch R1001.2091.

⁵⁷ Most of the deportees were Nama; a minority were Herero.

⁵⁸ Sarkin, Germany’s Genocide of the Herero, pp. 136–42, provides an overview of all quantitative claims about casualties in the literature. Numbers and percentages for Nama were lower and less intensely researched and debated.

⁵⁹ Command or superior responsibility is a less contested ICL notion than JCE 3, which was frequently applied at the Nuremberg and Tokyo Tribunal and the ad hoc tribunals. B.I. Bonafé, ‘Finding a Proper Role for Command Responsibility’, Journal of International Criminal Justice, 5, 3 (2007), pp. 599–618; C. Meloni, ‘Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?’, Journal of International Criminal Justice, 5, 3 (2007), pp. 619–37.

⁶⁰ Sarkin, Germany’s Genocide of the Herero, pp. 195–8.

⁶¹ According to the jurisprudence of the ICTY and the ICTR, a superior has the duty to inform himself about (possible) abuses committed by his subordinates, as long as such information is available to him. There is some dispute, however, on whether the failure to do so makes him liable for the very abuses or constitutes a different offence of negligence. See Meloni, ‘Command Responsibility’.

⁶² Von Trotha was a lieutenant general (Generalleutnant) when he retired, and the Emperor wanted to increase his pension to the amount that a general would be entitled to. See the correspondence between the Reichskolonialamt, the Reichskanzler, and the Ministry of Finance about the intended reward, which the latter ministry regarded as a contravention of the pension law in force at the time. The correspondence stems from May 1906 and is included in BArch R 43.937.

⁶³ It is worth mentioning here that in 1907, the Fourth Hague Convention on the Laws and Customs of War on Land (Hague 4) was signed, replacing Hague 2 for the states that ratified it. For all others, Hague 2 remained binding. Germany was a signatory to both.

⁶⁴ Today’s Burundi and Rwanda, which also belonged to German East Africa, were less affected by the war.

⁶⁵ T. Bührer, Die Kaiserliche Schutztruppe für Deutsch-Ostafrika. Koloniale Sicherheitspolitik und transkulturelle Kriegführung 1885–1918 (München, Oldenbourg Verlag, 2001), pp. 261–77; G.C. Kamana Gwassa, The Outbreak and Development of the Maji Maji War 1905–1907 (Köln, Köppe Verlag, 2005), pp. 163–208.

⁶⁶ The official German records estimate the number of Maji Maji casualties to be 75 000, Stenographische Berichte über die Verhandlungen des Deutschen Reichstages, Anlagenband 622 (Sitzung 1907–1909), p. 3693. Kamana Gwassa, p. 217, estimates the real number between 250,000 and 300,000. Bührer, p. 274, quotes 250,000 casualties, which were mostly due to hunger and disease. In the prosecutor v. Krstić, the ICTY found the massacre of 7,000–8,000 Bosnian Muslims from Srebrenica to be a genocide; the victim numbers of the Rwandan genocide, which was adjudicated as such by the ICTR in the prosecutor v. Karemera, oscillate between 500,000 (the number used in the immediate aftermath of the genocide by the UN) and 800,000. The Rwandan government and victims organisation have been publishing claims of more than 1 million victims.