‘Understanding our colonial past is a prerequisite to understanding the current migration situation’
An interview with Wolfgang Kaleck
Wolfgang Kaleck is the founder and General Secretary of the European Centre for Constitutional and Human Rights (ECCHR), a legal human rights organisation based in Berlin, Germany, dedicated to hold torturers and war criminals as well as transnational corporations accountable. In his latest book, ‘Law versus Power: Our global fight for human rights’, he underscores the notion that standards of human rights can prevail when people are willing to struggle for them.
Recently, within its “Institute for Legal Intervention”, ECCHR started to work on colonial crimes and is now working together with activists of the Herero and Nama communities from Namibia. In order to be in a better position to support both communities in their claim for an official apology, acknowledgement and reparations for the genocide committed by the Germans in 1904/05, Kaleck met with community and political leaders, as well as civil society organisations in Namibia in August 2018. During his visit, Völkerrechtsblog facilitated this interview which was conducted by Kavena Hambira, the chairperson of the Namibian Institute for Democracy (NID), who is also a descendant of the Herero survivors of the colonial genocide.
Let us start with a personal question. What drew you to the issue of the Herero and Nama genocide in Namibia?
Around 17 years ago, I was in contact with Jeremy Sarkin, who was the lawyer representing members of the Herero and Nama communities at that time, and I agreed to partner with him on that case. Even though this collaboration never materialized, as someone who is interested – and obviously outraged – by German history and colonialism in particular, it was very natural to me to tackle and challenge this continuing injustice.
I have to admit that even myself a couple of years ago, I thought of colonialism as a historical set of facts and I then learnt how fresh and important it still is in many regards. I remember a discussion about a book of mine called ‘International Law and double standards’, which I presented at conference in The Hague. I emphasized the history of colonialism as a prerequisite of the understanding of today’s crisis of International Criminal Justice, by stating that the nations who represented the prosecution in Nuremberg had committed serious crimes in the colonial liberation struggle themselves – namely the UK and France. A lively discussion erupted following that statement around colonialism and international law. Some raised the argument that the current prosecutor of the ICC is from Gambia and therefore the claim that colonialism has not been challenged by the international law community is not justified.
Another example was a presentation I gave at a conference in Hamburg about the restitution of colonial looted art. I provided the audience with three quotes, one from the German Government, a second one from an expert report on the genocide prepared by the academic services of the German Bundestag, and a third quote by Hans Filbinger, the former minister president of Baden-Wuerttemberg, who said about NS military tribunals: ‘What was lawful then, cannot be unlawful today’ (German: ‘Was damals rechtens was, kann heute nicht Unrecht sein’). I read the three quotes to the audience and asked them to allocate the quotes to the respective speakers, which made them feel really ashamed as the Filbinger quote in particular is outrageous by any standards. So the question we have to ask ourselves is: why is the transferability of the legitimate exception of the principle of intertemporality from one set of crimes to the other even up for debate? There are a lot of reasons for this silence, but one of the reasons might be that the victims of the Nazi crimes as well as the DDR crimes were white Europeans, whereas the victims of colonialism were the ‘uncivilised’ non-whites. To be fair, there are a lot of people in the German government who know that this is blatant injustice, but it is difficult within such a state apparatus to change the paradigms.
As a human rights lawyer, you have been working on international criminal cases in the past 20 years, including high profile cases such as Pinochet, Rumsfeld and Snowden. In terms of the 1904/1905 massacre of the Herero and Nama people, how do you think that compares to similar cases that you have come across in recent years?
Legal human rights organisations discovered the possibility of acting on behalf of victims and their communities in courts only around 20 years ago. When Augusto Pinochet was arrested in London on 16th October 1998, it was a wake-up call for us, as we saw that it is possible to pursue human rights violations extraterritorially. This field of law resembles a constant interplay of law, accountability and political power relations.
Coming to the colonial context, human rights organisations from all over the world started to work on these cases and applied the same principles and ideas in the colonial context. For example, my Dutch colleague Lizbeth Zegveld on behalf of Indonesian people is pursuing the reparation claims for massacres and mass rapes committed by Dutch Colonialists after World War II, and my Belgium colleague Christophe Marchand filed a case against Belgium military and Secret Service members who were involved in the assassination of the first elected president of the independent Democratic Republic of the Congo, Patrice Lumumba.
This shows that if the law is applied in an equal manner, we can categorise the colonial crimes as war crimes, crimes against humanity and genocide. Of course, it is getting more difficult to challenge criminal past when crimes were committed a longer time ago as is the case with the Herero and Nama. Even though prosecution of the perpetrators, reparation for the survivors and communities, or cleansing of the military and police apparatus is not possible anymore, we still have to think of some form of reparation. And that is exactly what the Herero and Nama and us who are supporting them are struggling for.
On the issue of reparations, there is an argument in Namibia that reparations do not necessarily address the issue of social justice. What is your opinion on that?
Reparation is not a closed category, you can deal with it in a creative manner. Reparation or restitution means that you try to reverse the crimes that took place to the extent possible – as this is obviously not fully possible because both indigenous communities have been nearly destroyed, they have been evicted from their ancestral lands and they have partly been forced into exile. The land continued to be in the hands of the white land robbers, the Germans, and the then apartheid rulers.
Finding an approach to social justice in the context of reparations means bargaining with a powerful German state which has been shown a lot of ignorance and indifference during those 115 years but is now forced to react to the reparation claims. That this is currently happening, is already a great achievement for the Herero and Nama because even after 1990, when Namibia got independence, politicians in Germany were trying to avoid the issue completely. The Herero and Nama succeeded in gaining a lot of public attention for this topic. End of August 2018, human remains from colonial crimes were restituted in Berlin in the presence of a Namibian delegation. Further, the Herero and Nama filed a lawsuit in New York: We cannot predict how successful this lawsuit will be under US law, but the Herero and Nama successfully put their case on the agenda of the international community. They forced Germany to defend itself.
This is an important first step, as a former colonial society acknowledges the injustice that was committed in the past. But obviously, more needs to be done to restore justice, which will require political mobilisation which is currently lacking on the Namibian as well as on the German side.
The German position with regard to the question of victims versus descendants, specifically in relation to reparations paid after World War II to the Jewish community, has always been that there is a difference between direct victims of genocide and their descendants. The latter are not perceived as being entitled to reparations. What is your view on that?
If you follow this approach, this means that you avoid paying reparations to the populations directly affected by colonial crimes. If crimes of this magnitude are committed by states or by other relevant powerful groups, they must be held responsible for it. If not in this generation, then in the next generation.
In August 2018 I’ve been traveling through Namibia for two weeks and I see that the communities are still suffering from the injustice committed 115 years ago. They have been robbed of their land and cattle or forced into exile. Many descendants were born in other places than their ancestors and they are lacking perspectives of a sustainable future. Therefore, it is fair to say that they are also affected, even though maybe in a different way from someone who was tortured or raped.
This is also scientifically proven as psychologists state that trauma passes from one generation to the other. If you don’t deal with collective trauma, it will resurface again and again in the form of more violence. Therefore, it’s not only a matter of morality and law that colonial injustice has to be repaired, but a matter of political intelligence: such an amount of violence suffered by a community needs to be dealt with, otherwise it will be a constant source of anger and disorder.
At the Namibian Institute for Democracy, one of our focus areas is civic education, including on the topic of the Herero and Nama genocide. Do you feel that this genocide is a topic that the German public would consider as pertinent or is it merely part of colonial history which does not affect the lives of the people on the ground?
I don’t think that we have a homogenous ‘public’ in Germany, we have many segments of ‘public’. I suggest we start with those parts of society which are receptive to the topic. It is already an achievement that students, intellectuals, artists and filmmakers, parts of the churches and some politicians become active members of this conversation. I believe this has to do with the fact that the impact of globalisation reaches our European countries. We have been successful in denying the negative impacts of our way of living for the population of other parts of the world, while at the same time making them bear the costs of our lifestyle. This applies to the colonial and post-colonial phase, but equally in the current phase of globalized capitalism. Colonialism and capitalism developed hand in hand.
But now, we get to see the results of this behaviour, with many parts of Europe being deindustrialised and labour being outsourced to other parts of the world, which increases unemployment amongst Europeans. It is not only people from countries at war, or communities in poverty and without any kind of perspective who are forced into migration. As we live in a world that is increasingly interconnected, we find ourselves again confronted with the colonial past. We were so eager to ignore this past for a long time, but colonial repercussions continued to be an important issue of public interest in the formerly colonized countries. Now the people from these countries confront us with it. It is now time for the public to wake up and recognise that due to our lifestyle and its impacts on other parts of the world, we also have to deal with the colonial past. Understanding our colonial past is a prerequisite to understanding the current migration situation.
Cite as: Kavena Hambira, “‘Understanding our colonial past is a prerequisite to understanding the current migration situation.’ An interview with Wolfgang Kaleck”, Völkerrechtsblog, 15 February 2019, doi: 10.17176/20190215-151412-0.