Colonial Genocide and Reparations Claims in the 21st Century: The Socio-Legal Context of Claims under International Law by the Herero against Germany for Genocide in Namibia, 1904-1908 (review)

Since its hundred-year commemoration in 2004, many publications about the war of 1904 to 1908 and the resultant genocide of the Herero population have appeared.¹ To academics in the social sciences and humanities the importance of this event is clear, for it shaped future colonial policies and illustrates pacification practices involved in the scramble for control over Africa. However, this historical chapter is not over: since Namibian independence in 1990, a major push by several of the country's ethnic groups has been under way to hold Germany legally accountable for crimes of the early twentieth century. Until now, no major publication focusing on Namibia has been able to clarify the murky legal terrain associated with the issue of reparations for a pre-World War II genocide. Sarkin's unprecedented analysis connects the event to today's processes of legal and economic redress.

In addition to Sarkin's past work with the United Nations Human Rights Council and as an acting judge in the Cape High Court in South Africa, he currently serves as a senior professor of law at the University of the Western Cape in South Africa and also as a legal advisor to Herero Paramount Chief Kuaima Rirauko. His lengthy survey of legal history and interpretation is focused, if at times confusing. Its five chapters cover a number of legal and historical matters: a historiography of the genocide, legal precedents established by German treaties, nineteenth- and twentieth-century human rights and humanitarian law, and the "past, present and future" of reparations for colonial-era crimes.

The most valuable part of the book for those wishing to understand the legal issues, Chapter 2, concentrates on the definitions and interpretations of gross human rights violations and humanitarian law, Sarkin's strength. This chapter challenges doubts about the legal precedents for claims deriving from genocide or gross human rights violations in the pre-World War II era. The author employs the "Martens Clause" to effectively thread this chapter together. Adopted by the Hague Conventions of 1899 and 1907, the Martens clause addressed "the status of civilians who took up arms against [an] occupying force" (p. 66). However, in cases such as the "genocidal phase" of the 1904 war, Sarkin argues, this clause can incorporate more than human rights protections: it offers a solid legal precedent for collective claims under international law. What makes the Martens Clause particularly relevant is that all of the European colonial powers, including Germany, supported it. Therefore it offers a legal tool against the German state. Sarkin cements the argument that Germany knowingly contravened international human rights protections with a detailed discussion of the country's 1870 Lieber Code, which promised protection for civilians affected by international and civil wars.

An equally beneficial, albeit vastly different, chapter discusses the historical trajectory of apologies and reparations for human rights abuses. Sarkin discusses Germany's attempts at contrition for its actions in 1904, the difficulties of individual and group claims in this case, and how the case fits into the context of comparable international atrocity and abuse cases. Here we get much more than an editorial: an informed and lively account of the need for, and difficulties associated with, sincere apologies and workable reparations agreements.

In the Namibia instance, the implicit problem is the passage of time. Reparations paid after World War II to victims of German crimes, most notably to Holocaust survivors and/or Israel, contrast sharply to other cases in the century after the genocide in German Southwest Africa. The German government has changed immensely since the early twentieth century and so too has the structure and ownership of firms that worked closely with the German state in 1904. In the...