Minimum Legal Standards in Reparation Processes for Colonial Crimes: The Case of Namibia and Germany

Abstract

Abstract In 2021, the German and Namibian governments published a Joint Declaration as a result of their negotiations on reparations. Ovaherero and Nama representatives strongly criticized the violation of their participation rights during the negotiations and the reproduction of colonial racism. In 2023, a lawsuit was filed with the Namibian High Court. This litigation could become a milestone in the history of legal struggles for reparations for colonial crimes worldwide. In addition to the litigation, several United Nations Special Rapporteurs were contacted and published their joint communication in April 2023, essentially confirming the lack of effective participation and the obligation to grant reparations. This Article gives an overview of the most important historical events during German colonial rule and the most significant efforts to legally come to terms with it since 2006. It analyzes the main legal issues in this context: Have the acts committed by German colonial troops violated the laws in force at the time? Is the current application of the doctrine of intertemporal law by the governments a reproduction of racism? Might it be a new act of racism? What challenges and limits do courts face when they attempt to retrospectively reconstruct legal systems and legal norms in force 100 years ago? Does the German state have a legal obligation to enter into negotiations over reparations? What participation rights do affected communities have in processes of legal reappraisal of colonialism? In view of the growing demands for reparations worldwide, it is timely to deal with the underlying legal issues in an exemplary manner. The legal intervention of the German-Namibian reappraisal could set a precedent. The Article aims at establishing minimum legal standards for reparations processes for colonial crimes worldwide.