Redressing Colonial Genocide Under International Law: The Hereros' Cause of Action Against Germany

Abstract

In February 2003, the Herero People's Reparations Corporation filed a complaint against Germany in the District Court of the District of Columbia alleging violations of international law, crimes against humanity, genocide, slavery, and forced labor before, during, and after the German-Herero War (1904-07). The German government, modern scholars, and other commentators have long taken the position that genocides committed by colonial governments in the nineteenth century did not violate international law at that time. Arguments for this position rely, inter alia, on the belief that all forms of genocide were first criminalized and made punishable by the 1948 U.N. Convention on Genocide. However, an analysis of contemporaneous international customary and treaty law shows this position to be wrong and supports the position that colonial acts of annihilation in Africa were illegal by the end of the nineteenth century. This article further argues that this law was directly applicable to the German-Herero War. It concludes that the Hereros' case for legal redress is stronger than heretofore assumed and examine the implications for the claims of other similarly situated victims of genocide.

Keywords: international law, genocide, crimes against humanity, slavery, forced labor, colonialism, war, Herero, Germany, Namibia, Africa, Berlin West Africa Convention, third-party beneficiary doctrine