Beyond Symbolic Recognition

Today, for the second year, Namibia commemorates 28 May as “Genocide Remembrance Day”. On this day in 1908, the last concentration camps that were part of Germany’s extermination policy in German South West Africa were formally closed.

From 1904 to 1908, German forces exterminated up to 80 percent of Ovaherero, more than half of Nama and a significant percentage of Damara and San in present-day Namibia in an (unsuccessful) attempt to maintain colonial control. This killing of more than 75.000 persons is considered the first genocide of the 20th century. For the longest time, the atrocities remained unaddressed by Germany. Over a century later, following years of activism by descendants and civil society, Germany started negotiations with Namibia that resulted in a “Joint Declaration” in 2021.

However, following protests from the affected communities regarding both the content of the agreement and the negotiation process (summarised e.g. here, here and here), signature was put on halt by the Namibian Parliament. Since then, German decision-makers have not made significant progress on the issue. While conscious that the choice of 28 May as remembrance day is justly criticised by the affected communities, this blogpost still sees it as an occasion to once again call attention to the need for action – action that both recognises the applicable standards of international and human rights law, and does not reproduce colonial thinking and power structures. This will be done using the concept of transitional justice.

Transitional justice was initially developed in the context of post-dictatorship or post-conflict situations. Although its application when addressing the legacy of serious human rights violations and breaches of international humanitarian law that occurred during colonial periods is not wholly without criticism, it is widely considered a useful approach (here, para. 44). The principles and aims of transitional justice are closely aligned with the rights of Indigenous Peoples (here, para. 44), and the demands of victims’ organisations correspond with the core elements of transitional justice. While the scope and goals of transitional justice can vary across contexts, certain fundamental principles include: ensuring accountability, establishing the truth, providing reparations, promoting memorialisation, guaranteeing non-recurrence, and facilitating victim participation.

Of these, the lack of effective participation of the Ovaherero, Nama, Damara and San in the negotiation process of the Joint Declaration is widely criticized (e.g. here, here and here) and remains a significant concern. Without undercutting these concerns, this blogpost focuses particularly on the principles of reparation, memorialisation and guarantees of non-recurrence. The latter is examined specifically with regard to its role in educational initiatives.

Germany and the Ever-Present Fear of Financial Compensation

Germany’s main focus in “memorialising” the genocide in Namibia has been on denying a legal obligation to make reparations, in particular compensation payments. Between 2015 and 2023, no less than five reports of the Scientific Services of the Bundestag addressed the Genocide from the perspective of reparation payments or the violation of international law. Germany’s position does not rest on a denial of the events from 1904 to 1908, nor on difficulties in proving genocidal intent within the meaning of the 1948 Genocide Convention. The latter is shown by statements of Lothar von Trotha, military commander of the German colonial forces in Namibia at the time.

Instead, Germany relies on the intertemporal principle, which dictates that the legality of an act has to be judged against the law in force at the time it was committed. And, so the German argument goes, the international humanitarian law of the early 20th century which prohibited atrocities such as the indiscriminatory killing of civilians only applied between the so-called “civilised” nations – excluding colonies. And while the intertemporal principle does not prohibit the retrospective application of international law if retrospective application is explicitly ordered in the treaty in question, the Genocide Convention contains no such clause. According to this logic, Germany’s actions were legal at the time and it is therefore under no obligation to pay compensation (see Scientific Services of the Bundestag: e.g. 2012, 2016, 2023; with the Federal Government sharing this position, see e.g. 2015, 2016, 2023, 2025).

Legal Contestations to Germany’s Position

Germany’s position, however, is not as uncontested as the government likes to pretend. Two main lines of criticism can be identified: One focussing on the application of the intertemporal principle, the other on challenging the legality of Germany’s actions according to the law of the 1900s.

Takes on the former aim at retrospectively categorising Germany’s actions as illegal, irrespective of contemporary (il-)legality. One suggestion is to rely on the Radbruch formula to the effect that norms legalising Germany’s action would be invalid. Others outright reject the application of the intertemporal principle to crimes against humanity or argue that it does not apply to actions with ongoing consequences such as colonialism.

On the latter, scholars such as Goldmann, Koskenniemi and Arnauld show that the legality of Germany’s actions under international law were subject to contestation even in the 1900s. Theurer rightly points out that the Scientific Services of the Bundestag only quote European scholars and fail to take into account the potential relevance of non-European contemporary law. Combining their conclusions with Wheatly’s reading of the intertemporal principle, one might argue that, from today’s perspective, contemporary criticism and agreements such as the Hague Convention 1899 or the Congo Conference could be seen as crystallising rules prohibiting the kind of inhuman warfare and treatment of Indigenous Peoples Germany conducted. On this view, Germany’s actions may well be termed unlawful even under the standards of 1904.  Overall, the legality question is clearly open to debate.

Beyond (Il-)legality: The Persistence of Colonial Logics as a Barrier to Negotiation

As a second point, relying on the laws of 1900 is not merely a question of doctrinal legal reasoning. It is also an expression of the way Germany views history and its relationship with the Ovaherero, Nama, Damara and San today. The laws Germany relies on were inherently racist. They declined to view Indigenous Peoples as equal human beings. Irrespective of whether Germany’s legal position is right or wrong based on a strictly doctrinal analysis, by invoking those racist laws today, Germany reproduces colonial racism, and thereby re-enforces the trauma inflicted by the genocide (Special Rapporteurs; Theurer, here and here; ECCHR).

Under such circumstances, Germany’s claims of seeking reconciliation and having overcome its colonial past made in the 2021 agreement ring hollow. In law, a common approach to a contested claim is to enter negotiations on a mutually agreeable settlement. Trying to conclusively “settle” demands for reparations with development cooperation, as envisaged in the 2021 agreement, does not adequately reflect the harms the Indigenous communities were subjected to and continue to suffer. True reconciliation will be impossible as long as Germany adopts a legal position that can only be sustained by relying on racist laws. Negotiations that include reparation payments are therefore inevitable if Germany actually wants to reckon with its colonial past.

Decolonising Public Memory

Beyond the formal recognition of its legal obligation to provide reparations, Germany must take further meaningful steps to advance transitional justice more substantially, particularly in the fields of memorialisation and education. The extent of the existing knowledge gap is especially apparent in light of recent survey data. A study conducted in December 2024 on public knowledge of Germany’s colonial past in Namibia revealed a striking lack of awareness, with approximately 65% of the respondents reporting that they knew “hardly anything” on the issue, and only 5% considering their knowledge to be “comprehensive”. Although the Joint Declaration contains brief references to an “appropriate culture of remembrance”, “to promote and support reconciliation […] through preserving the memory of the colonial era, […] by, inter alia, finding appropriate ways of memory and remembrance, supporting research and education” (paras. 14, 17), these commitments and the measures Germany has taken to date remain limited.

Germany’s lack of a general concept and comprehensive strategy of memorialising colonialism and connected human rights violations was most recently visible in the government’s statement in the German Bundestag in 2025. The statement merely listed few scattered initiatives on colonialism memorialisation, memorial sites, restitution of human remains and stolen artefacts, research and cultural events.

Germany does not have an official memorialisation day nor a permanent exhibition on the genocide. Colonial memorials in Germany were long devoted solely to fallen German soldiers and have only in recent decades been augmented with plaques to commemorate the victims. Many changes were driven primarily by civil society organisations. Lothar von Trotha’s grave in Bonn was until 2008 wrongfully listed as grave of honour and is until today not signposted. Several street names of colonial perpetrators persist e.g. Leutweinstraße, Lüderitzstraße or Waterbergstraße, amongst others, in Bremen, Kiel, Gelsenkirchen, Oberhausen, Duisburg or Munich.

Germany’s Human Rights Obligation to Educate

Even if one were to follow Germany’s own position that international law does not apply retroactively, Germany is under current international human rights obligations to educate its population on its own history. Germany’s history of colonialism, slavery, genocide and human rights violations connected to it, as well as their lasting consequences, need to be addressed in order to confront the root causes of racial injustices. This obligation arises, among others, from Article 7 ICERD, which obliges states to adopt ‘immediate and effective measures’ with a view to combatting racial prejudices, particularly in the fields of teaching, education, culture and information. Combatting racial prejudice and stereotypes requires education on the root causes of racial injustices and education of historic events – including colonial crimes.

CERD’s General Recommendation No. 34 highlights the need to educate the population as a whole with the aim of promoting respect and tolerance, especially regarding people of African descent. Leaving the genocide of Ovaherero and Nama generally unaddressed fails to do so.

Germany has been repeatedly made aware that it is not sufficiently fulfilling its obligations under international human rights law. In a Joint Declaration to the German government from 2023, seven Special Rapporteurs highlighted the “the duty of States […] to memorialise the gross human rights violations committed in colonial contexts”. Pointing i.a. to the Durban Declaration, they demanded that Germany establish a comprehensive culture of remembrance, developed in close consultation with victims, that educates the entire population and preserves the memory of these atrocities for current and future generations.

Amongst others, the Working Group of Experts on People of African Descent criticised Germany for failing to sufficiently cover historical facts related to the genocide in schools. It also highlighted inadequate school curricula on the “root causes of racial inequality and injustice”, which “has also contributed to the structural invisibility of people of African descent in Germany.” It called for a governmental “review to ensure that textbooks and other educational materials reflect historical facts accurately as they relate to past tragedies and atrocities.” This view is shared by the CERD, most recently in 2023. The Committee generally calls for anti-racist and pro-tolerance education and highlights appropriate measures such as intercultural education and encouraging knowledge of the history and cultures of peoples of African descent in the school curriculum. Beyond teaching past crimes, Black and Indigenous history, contributions, and perspectives must accordingly be taught in Germany to promote racial tolerance.

Conclusion

Today Namibia commemorates the victims, but in Germany far more is needed. Memorialisation and true reconciliation cannot remain the responsibility of civil society alone. A comprehensive strategy must be adopted and implemented. If measures are to be effective and lasting, they must be actively undertaken, not avoided, watered down and delayed by the German state. Transitional justice must be fully and comprehensively ensured, especially in accordance with the demands of the victims. In times where nationalism, xenophobic and racial hatred are on the rise, educating the public about the atrocities committed by Germany in the past based on racialised narratives of superiority seems more important than ever – both to advance justice for the past and to ensure non-repetition of such crimes in the future.