A critique of the Germany–Namibia Accord on colonial genocide
| Author | Namakula, C.S. |
| DOI | https://doi.org/10.47348/AYIH/2021/a2 |
| Published date | 15 December 2022 |
| Date | 15 December 2022 |
| Citation | (2021) African Yearbook on International Humanitarian Law 46 |
| Pages | 46-66 |
46
https://doi.org/10.47348/AYIH/2021/a2
Reparations without reparation:
A critique of the Germany–Namibia
Accord on colonial genocide
Catherine S. Namakula*
Abstract
Reparation is meant for effect: to ma ke amends. The offer of EUR 1,100
million by the Federa l Republic of Germany to the Republic of Na mibia,
in an agreement of June 2021, for the genocide comm itted during the
colonial-era occ upation encourages debate about the categorisation and
effect of the payment in t he elds of human rights and inter national
crimina l justice. The genocide was char acterised by the loss of the l ives
of thousands of people among the Na ma and Herero of Namibia bet ween
1904 and 1908. In a pioneering a nalysis, this article re iterates the principles
of reparation in internationa l criminal jurisprude nce as a yardstick for this
signicant gestu re of remorse. Reparations must meet both procedural a nd
substantive requireme nts: they must be proportional, appropriate, prompt
and adequate, and they must culm inate from a process that ensu res the
meaningful participation of victims and judicious regard for all relevant
factors and circu mstances. Reparations for t he sake of it, without the
remedial effec t, make a mockery of justice. An agreement for development
aid, however generous, cannot meet the sta ndards of reparation for gross
human rights violations. It does not oust t he jurisdic tion of a competent court
on the matter and the pre-e mptive clause intended to make the na ncial
component in the Germany– Namibia Accord conclusive is unenforceable.
This signic ant discourse must be g uided by clearly set standards to avoid
replicating the power dyn amics which charac terised the commis sion of
the crimes that ar e intended to be addressed. Fur thermore, the disti nct
treatment of victim s on the basis of race and colonial history is repugnant
and not defensible. A formidable instit utional framework is needed for
reparations for the trans-Atlantic trade and trafcking in enslaved Africans
and colonial crimes, compr ising a United Nations independent mechanism
and a specialise d committee of the Af rican Union, supported by national
committees of the respec tive countries.
Keywords: reparations, principles, participation, proportional, appro-
priate, prompt, adequate
* LLB (Hons) Post Graduate Diploma in Lega l Practice LLM PhD, Senior Lec turer
at the University of the Free St ate, Professor of Human Rig hts and Crimina l
Justice with the Global Hu manistic University, Curaçao. Email: NamakulaCS@
ufs.ac.za. The v iews in this article are per sonal and not of the Working Group
of Experts on Peo ple of African Descent.
(2021) African Yearbook on International Humanitarian Law 46
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1 INTRODUCTION
International crimina l justice is spreading globally, with claims
being made for reparation for historical crimes aga inst humanity,
international crimes and war c rimes. In 1952, Germany and Israel
entered an agreement on reparations, in which Ger many undertook
to pay USD 845 million to and in favour of Israel for the ‘unspeakable
criminal ac ts perpetrated against t he Jewish people during the
National-Socialist reg ime of terror’.1 The Mau Mau litigation was
also instituted against the Br itish government for the torture and
other forms of ill-treatment of the people of Kenya during a state of
emergency declared in 1952.2 This led to an out-of-cour t settlement of
GBP 19.9 million. In 20 08, decades of negotiations between Italy and
Libya resulted in the conclusion of a treaty of friendship, part nership
and co-operation betwee n the two countries. Italy undertook to
pay USD 5 billion as reparation for its colonial atrocities in Libya.3
In 2011, a Dutch court ruled in favour of the victims of mass
executions committed on 9 December 1947, by the Dutch state, in
Rawagede, a village in Indonesia, during the war of independence.4
In December 2020, the Parl iament of France made a proclamation
to transfer 26 cultu ral works, which had been held in museums in
France for over a century, back to Benin.5 In December 20 05, the UN
General Assembly adopted the Basic Princ iples and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations
of International Human Rights Law and Ser ious Violations of
International Humanitarian Law.6 The principles and guideli nes on
the right to a remedy and reparation identify mecha nisms, modalities,
1 Agreement bet ween Israel and the Federal Republic of Ge rmany (with schedule,
annexes, exchanges of let ters and protocols) No 2137 signed at Luxembourg on
10 September 1952, available at
Volume%20162/volume-162-I-2137-English.pdf> (access ed on 10 March 2022).
2 Kimathi and Others v Th e Foreign and Commonwealth Of ce [2018] EWHC
2066 (QB) (2 August 2018). See also Ndiku Mutua and Ot hers v The Foreign and
Commonwealth Ofce [2011] EWHC 1913 (QB).
3 Treaty of Friendship, Part nership and Co- operation between t he Italian
Republic and the Great Soci alist People’s Libyan Ar ab Jamahiriya, sig ned
on 30 August 200 8, available at w.camera.it/_dati/leg16/lavori/
schedela/apriTelecomando_wai.a sp?codice=16PDL0017390#PD> (accessed on
10 March 2022).
4 Wisah Binti Silan et al v The State of T he Netherlands 354119 / HA ZA 09- 4171,
Judgment of 14 September 2011.
5 LOI no 2020 – 1673 du 24 décembre 2020 relative à la restit ution de biens
culturels à la République avai lable at
JORFTEX T000042738023> (accessed on 29 D ecember 2021).
6 General Assembly Res olution 60/147 (hereafter Basic Principles and Gu idelines
on the Right to a Remedy and Repa ration).
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procedures and methods for the implementation of the obligations to
remedy and make reparation under international human r ights law and
international humanitarian law.7 In 2014, the Caribbean Community
(CARICOM) developed a Ten Point Plan for Reparatory Justice, which
outlines a possible path to justice for victims and descenda nts of
colonial crimes, including the enslavement of Afr icans, genocide
and racial apartheid by Europea n governments in the Caribbean. 8
This framework was endorsed by the U N Working Group of Experts
on People of African Descent in 2016 ‘as a creative way of weaving
together different elements of reparatory justice’.9
Reparation is broadly described as mak ing amends for a past wrong
or legacy of the past. Each reparations programme emb odies the
unique qualities of the parties i nvolved and the wrongs addressed, but
the goal is the same and identiable with a common golden thread of
truth, justice and reconciliation. The repa rative effect is as importa nt
as the reparations, and the integrity of the process of obta ining them.
In June 2021, the Federal Republic of Germany and the Government
of the Republic of Namibia made a joint declaration acknowledging
the genocide, gross human rights violations and human suf ferings
that characterised t he colonial period.10 The suppression of the Nama
and Herero resulted in the kill ing of a signicant portion of a people,
enslavement, forced displacement, and dispossession of property and
land. The joint declaration was preceded by several su its by the Herero
people against Germany in the US cour ts, which were dismissed.11
Against that back ground, Germany apologised a nd committed
an amount of EUR 1,100 million to facilitate a reconstruction
and development support programme in favour of the affected
commun ities.12 The Ger many–Namibia Accord presents several
questions in the discourse of reparations. This article analyses this
pact in view of procedural and substa ntive benchmarks for reparation,
including the meaningf ul participation of vict ims, appropriateness,
7 Ibid, preamble.
8 See CARICOM Ten Point Plan for Repa ratory Justice, available at tps://
adsdatabase.ohchr.org/IssueLibrary/CARICOM_Ten-Point%20Plan%20
for%20Reparator y%20Justice.pdf> (accessed on 1 June 2022).
9 Report of the Working Group of Ex perts on People of Afr ican Descent on
its seventeenth and eighteenth s essions, 19 July 2016, para 54, available at
G1615896.pdf?Ope nElement> (accessed on 7 June 2022).
10 Joint Declaration by t he Federal Republic of Ger many and the Republic of
Namibia para 11 (also referr ed to as the Germany–Namibia Accord).
11 Hereros v Deutsche Af rika-Linien GMBLT & Co US Court of Appeals for the T hird
Circuit, Case No 0 6-1684, Decision of 10 Apri l 2007.
12 Ibid para 18.
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promptness, proportionality and adequacy. These standards are
instruc tively embedded in international crimin al jurispr udence.
The article commences with a n interrogation of the identity and
effect of the agreement. Thi s is followed by juxtaposing the agreement
with the procedural and substantive guarantees for reparation measures
while distingu ishing the peculiarities of approaches to colonial crimes.
2 THE IDENTITY QUESTION
The rst question for determination is whether the Ger many–Namibia
Accord is an agreement for reparations. Of note, the four corners of
the document do not contain the word ‘reparation’ and the German
government rejected the use of the term during t he document’s
negotiation and conclusion. It is therefore important to analyse the
clauses of the agreement in order to determine the pu rpose of the parties
and the (intended) effect of the agreement. First, acknowledgement
of wrongdoing forms the legal basis for entitlement in cases of
reparation.13 The crimes committed in the colonial era are advanced as
the contextual basis for the intended payments, especial ly the policies
adopted and implemented by the German forces to annihi late and
exterminate identied communities in pres ent-day Namibia.14 The
preamble recalls the deep wounds in icted on particu lar communities
by the atrocities perpetrated dur ing German colonial r ule between
1904 and 1908, and recognises the need for development in order to
address the lasting economic, social a nd psychological hardship of the
most affec ted commun ities.
Second, there is a close correlation between the contents of the
agreement and claims made by the Ova herero and Nama peoples
in a class action against Ger many in the New York District Court
in 2 0 17.15 This supports the position that the joint declaration is a
response to the class action. Both docu ments refer to the gruesome
violations that were committed when the uprisings of 1904 and 1905
by the Ovaherero and Nama people respec tively were crushed.16 The
class action categorically seeks repa rations and compensation for the
genocide and the damage to the persons and propert y of the Ovaherero
13 Larissa va n den Herik ‘Addressing “Colonia l Crimes” Through Repa rations?
Adjudicating Dutch Atroc ities Committed in I ndonesia’ (2012) 10 Journal of
International Cr iminal Justice 695 at 703.
14 Joint Declaration by t he Federal Republic of Ger many and the Republic of
Namibia paras 1–9.
15 Vekuii Rukoro, Paramount Chief of the Ovaherero People, David Frede rick, Chief
of the Nama Traditional Authorities Assoc iation and others v Federal Repu blic of
Germany Civ No 17-0062.
16 Ibid paras 1–2.
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and Nama people as a result of the actions of the Ger man authorities.17
The joint declaration dedicates a signicant port ion of the amount
offered to the reconstruct ion and development support programme(s)
that will benet the descendants of t he affected communities.18
Third, there is an under standing that the amounts extended
settle all nanc ial aspects of the concerns of the past add ressed in
the joint declaration.19 Fourth, ‘Germany accepts a moral, historical
and political obligation to tender an apology for [the] genocide and
subsequently provide for the necessary means for reconciliation
and reconstruction … Ger many apologises and bows before the
descendants of the victims.’20 Reparations often contain a comp onent
of reconciliation that is meant to address an underlying w rong such
as the killing of ma ny thousands of Ovaherero, including women
and children, in a war waged by Ger many in 1904.21 Simi larly, a
public apology that includes an acknowledgement of the facts and an
acceptance of responsibility, such as the content of the aforementioned
paragraph, is a key component of satisfaction, which is a form of
reparation.22 Fifth, the communities mentioned in the accord, namely
the Ovaherero, Nama, Damara and Sa n, are those affected by t he
colonial crimes for which reparations are sought. Projects a re intended
to be implemented in regions inhabited by the aforementioned groups
through a development support programme that is provided for under
the pact. 23 It is notable that the agreement is discreetly intended to
advance reparations or create a replica of reparations.
Another question arises as to whether the agree ment has a
reparative effect. Reparations ser ve two major purposes: (i) they oblige
those responsible for serious crimes to repair t he harm they caused;
and (ii) they relieve the suffering caused by se rious crimes, and afford
justice to the victims by addressi ng the consequences of the wrongful
17 Hereros v Deutsche Af rika-Linien GMBLT & Co US Court of Appeals for the Th ird
Circuit, Case No 0 6-1684, Decision of 10 April 2007. See also Joint Declarat ion
by the Federal Republic of G ermany and the Republic of Namibia para 5.
18 Joint Declaration by t he Federal Republic of Ger many and the Republic of
Namibia para 18.
19 Ibid para 20.
20 Ibid paras 11, 13.
21 Prosecutor v Tho mas Lubanga Dyilo ICC -01/0 4- 01/06 ( herea fter Lubanga case),
Decision Establish ing the Princ iples and Procedures to b e Applied to Repara-
tions, 7 August 2012 para 2 44. See also Joint Dec laration by the Federal
Republic of Germany a nd the Republic of Namibia para 2.
22 Basic Principles and Gu idelines on the Rig ht to a Remedy and Reparation
para 22(e).
23 See Joint Declaration by t he Federal Republic of Ger many and the Republic
of Namibia para 16: projects w ill be implemented in the reg ions of Erongo,
Hardap, Kha ras, Khomas, Kunene, Omahe ke and Otjozondjupa.
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acts committed, deter futu re violations and enable the victims to
recover their dignity.24 The reparative effec t is measured against both
procedural and substantive guarantees.
3 PROCEDURAL CONSIDERATIONS AND SUBSTANTIVE
GUARANTEES FOR REPARATIONS
Procedural considerations include (i) meaningfu l participation of
all stakeholders; and (ii) judicious regard for all relevant factors and
circumstances. Substa ntive guarantees relate to the nature a nd form of
the reparations. Reparations must be (a) proportional; (b) appropriate;
(c) prompt; and (d) adequate.25
3.1 Participation of all stakeholders
The ‘meaningful ness of reparations is as much about the process as it is
about the aw ard’.26 The Ovaherero and Nama continua lly sought their
inclusion in the discussions and negotiations between Ge rmany and
Namibia about the aforementioned claims. In the class ac tion, they
sought to enjoin and restrain the former colonial power from continuing
to exclude them and their representatives from part icipating in the
talks.27 In the wording of the International Crimina l Court, victims of
the crimes, together with their fa milies and communities, should be
supported to participate in the process of reparation and ma ke their
participation substantive and effective.28 For the avoidance of doubt,
victim s are describ ed as person s who ‘individual ly or collectively
suffered harm, includi ng physical or mental injury, emotional suffering,
economic loss or substantial impairment of their f undamental
rights, through acts or omissions that constitute gross v iolations of
24 Lubanga case, Order for Reparat ions (Amended), ICC-01/04-01/06-3129-
AnxA, 3 Ma rch 2015 para 71; Prosecutor v Ahmad Al Faqi Al Mahdi IC C-01/12-
01/15-236, Reparations Order, 17 August 2017 (‘Al Mahdi Reparations Or der’)
para 28; see a lso Prosecutor v Ger main Katanga ICC-01/0 4-01/07 (K atanga case)
Order for Reparations pu rsuant to Article 75 of the Stat ute, 2 4 March 2017
para 15.
25 Paragraph VII of the P rinciples and Guidel ines on the Right to a Remedy a nd
Reparation encapsulates t he right of victim s to remedies such as adequate,
effective and prompt re paration for harm suffered.
26 Lubanga case, Observ ations on Reparations in Respon se to the Scheduling
Order of 14 March 2012 para 24.
27 Vekuii Rukoro, Paramount Chief of the Ovaherero People, David Frede rick, Chief
of the Nama Traditional Authorities Assoc iation and Others v Federal Rep ublic of
Germany Civ No 17-0062 para 1.
28 Lubanga ca se, Decision Establi shing the Princ iples and Procedures to b e
Applied to Reparations, 7 Augu st 2012 para 203.
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international human rights law or serious violations of international
humanitarian law’.29 The victimisation of the Ova herero and Nama
by the violent repressive outcomes of German policies is documented.
Thousands of men, women and children were shot, hanged, burnt,
starved, exper imented upon, enslaved, forced to work to death,
abused, raped, and dispossessed of thei r land, property and livestock
as well as their rights and dig nity.30 This legacy of deprivation and
dehumanisation is the basis of the xenophobia, racism, discri mination
and prejudice that the Nama and Ovaherero, as well as other pe rsons
of African descent, face worldwide.31 Colonial r ule, which followed
the genocide, was characterised by i nequalities based on a racial
hi er a rc hy. 32 These inequalities subsist today as a contemporary form of
victimisation of pers ons of African descent, including t he Nama and
Herero. Of note, the Dutch court in the Indonesian case of Rawagede
distinguished t he gravity of vict imisation that was experienced by t he
widows of the men that were executed and the subsequent generations
that were affected by the state’s inaction to what the court deemed
‘a lesser extent ’. 33 The court clearly underestimated the effect t hat
the loss of one person, especially the breadwin ner, could have on
subsequent generations. The impact of the loss of nearly all the men
of Rawagede, at the same time, is a subject of independent research.
The interdependency of persons of all genders is a key factor in t he
balance of society. The victim isation of Africans and people of Af rican
descent has continued across generations in equal measure by way of
racism, racial discr imination, racial segregation, and contemporary
forms of slavery, rendering the debate on diminished victim isation
inconsequential.
Germany’s failure to engage the Herero people is a contrast to the
Bundestag’s recognition that the Herero people continued to exist and
revitalised and bui lt their culture following the atroc ious invasion.34
These organised people sought reparations in the context of that
29 Basic Principles and Gu idelines on the Rig ht to a Remedy and Reparation
para 8.
30 Joint Declaration by the Fede ral Republic of Germa ny and the Republic of
Namibia para 8.
31 ‘Healing the Wounds of Sl ave Trade and Slavery: Approaches and Pr actices’
A desk review by UN ESCO, the Slave Route Project, January 2021.
32 Heloise Weber and Marti n Weber ‘Colonialism, Genoc ide and International
Relations: The Namibia n–German Cas e and Struggles for Restorative Relations’
(2020) 26:1 European Journal of Inte rnational Relations 91.
33 Van den Herik op cit note 13.
34 See Declaration by t he German Federa l Parliament of 16 June 2004 i n Com-
memoration of the Victims of t he Colonial War in the former German South -
West Africa, available at ttps://windhuk.diplo.de/na-en/themen/politik/
erklaerung- bt-2004 -06-16/1049394> (accessed on 6 June 2022).
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culture. Cultu re in its widest sense is described as ‘t he whole complex
of distinctive spiritual, material, intellectual and emotional features
that characterize a so ciety or social group’.35 It includes their modes
of life, their fundamenta l rights, value systems, traditions and beliefs.
The exclusion of the Nama and Herero from the negotiations is an
incurabl e defect.
Elevating the role and voices of persons who experienced the
phenomena addressed in the reparations process is essential to bu ilding
a solid factual basis for the award. Reparations ar e intended to pacify
the victims and accord them just ice; this goal can only be measured and
obtained when such victim s participate directly i n the process and are
heard. This becomes part icularly essential in out-of-cour t settlements,
in which negotiations are more inuenced by political dyna mics other
than due process.
‘Reparations without justice a re not reparatory, and the wider social
political strug gles for justice and against impunity and sp ecic psycho
social interventions ne ed to be increasingly consonant and integrated
in a unied strateg y.’36
The participation of victi ms in the negotiations also creates an
opportunity for dia logue between the vict ims and perpetrators and
paves the way for healing and closure. It should be remembered that the
current state entities in Afr ica are colonial formations. Engagement with
contemporary state structures, w ithout the pre-colonial communities
that were distinctly af fected by the crimes, is insufcient. It is expec ted
that both states and the communities should be engaged accordingly.
‘The integration of human rights into state responsibility has brought
about the basic premise that, in instances of breaches of international
obligations, redress and reparation are due not only to states, but also
to the injured persons and groups themselves.’37 All vic tims must be
treated fairly, equally and with dignity; repa rations should promote
reconciliation between the per petrator(s) and the victim(s); the two
parties have to engage.
35 Mexico City Decla ration on Cultura l Policies, 1982, available at s://cul
turalr ights.net/descargas/drets_cultu rals401.pdf> (accessed on 6 June 2022).
36 Gina Donoso ‘Inter-Americ an Court of Human Rights’ Repa ration Judgements:
Strengths a nd Challenges for a Comprehensive App roach’ (2009) 49 Revis ta
IIDH 29 at 30.
37 Rule of law tools for post-con ict states: Reparations Prog rammes, OHCHR,
2008 at 6, avail able at ments/Publications/
reparationsProg rammes.pdf> (accessed on 1 June 2022).
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3.2 Judicious regard for all relevant factors and
circumstances
‘Harm is the basis upon wh ich reparation is afforded.’38 The extent of
the harm and the costs to re pair it are the prima ry determina nts
of the extent of the perpet rator’s liability.39 Harm denotes ‘hur t,
injury, and damage’.40
It does not need to be direct but must be personal to the v ictim.41
Reparation hearings establish the nature of t he injury, harm or loss
resulting from the cri me(s) in question. Quantifying the loss also
guides restitution – measures to re- establish the original situ ation
which existed before the violation.42 However, there are limits to such
an exercise with respec t to gross human rights violations because t hey
do not always conform to strict remedial cr iteria such as a provable
quantiable loss.43 Detailed harm assessments are discou raged because
of the likelihood of re-traumati sing and re-victimising t he persons
intended to be pacied.44 Following the rst victim s’ identication
and harm assessment process, the Trust Fund for victi ms sought the
discontinuation of the process on the ground that the indiv idual
eligibility process ‘damaged and re-t raumatised victims’.45 It is an
established principle that ‘all processes should observe the fu ndamental
rule that no furt her harm be caused to the vict im through the means
used to assess the damage and trauma cause d to that victim’.46
The requirement of specic proof of vict imisation is also limited
by the decline in the availabil ity and quality of evidence for an
atrocity, such as the genocide of the Nama and Herero that is more
than a century old. Th is challenge may be navigated by, rst, reliance
on available data sources such as historical scholar ship47 and ofcial
38 Prosecutor v Jean-Pie rre Bemba Gombo ICC -01/05-01/08 -3448, Observ ations by
the Redress Trust P ursuant to Art icle 75(3) of the Statute and Rule 103 of the
Rules, 17 October 2016 para 74.
39 Prosecutor v Bosco Ntaganda IC C-01/04- 02/06 (here after Ntagan da cas e),
Reparations Order, 8 Marc h 2021 para 98.
40 Lubanga ca se, Decision Establi shing the Princ iples and Procedures to b e
Applied to Reparations, 7 Augu st 2012 para 228.
41 Ibid.
42 Basic Principles and Gu idelines on the Rig ht to a Remedy and Reparation
par a 19.
43 Dinah Shelton Remedies in Inte rnational Human Rights Law 2 ed (200 5) 428.
44 See Prosecutor v Jean- Pierre Bemba Gombo op cit note 38 para 75.
45 Lubanga case, First Submis sion of Victim Dossiers by the Trust F und for Victims,
31 May 2016 para 8.
46 Prosecutor v Jean-Pie rre Bemba Gombo op cit note 38 para 75.
47 The Mau Mau litigation could not have bee n preferred earlier than 20 05, when
the chain of knowledge a nd authorisation was trace d to the highest levels of
government – per Daniel L eader ‘The Mau Mau Litigat ion – Justice at Last’,
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government documents. It is noteworthy that in cases where the
state has already acknowledged wrongdoing, statutory limitation is
not reasonable because it mainly serves the pur pose of countering
the issue of lack of quality evidence, which is rendered moot in suc h
cases.48 Second, physical evidence such as the presence of African
(ancient) artefacts in museums of colonial countries and, th ird,
reasonable presumptions may assist in addressing the chal lenge. In the
case of Kuna rac,49 the Appeals Chamber of the International Criminal
Tribunal for the former Yugoslavia declared erroneous the assumption
that suffering must be v isible, even long after the commission of the
crimes. 50 It held that ‘some acts establish per se the suffering of t hose
upon whom they are inicted’.51 There is no need to specical ly prove
such suffering. In response to c harges of rape, the defendant argued
that the rst element of the crime of tortu re – the iniction of severe
pain or suffering – wa s not met.52 It was argued that no witness showed
the effects of physical or mental pain or suf fering.53 Evidenc e is not
required to prove that the killi ng and enslavement of the Herero and
the Nama, among other Africa ns, after dispossessing t hem of all their
property, dehumanised them and set them on a path of deprivation
and disarray. By acknowledging the grues ome actions against these
communities, Germany also ad mitted the natural consequences of
those actions as direct ly occasioned by its ofcials.
3.3 Propor tionality
Reparations should be proportional to the gravity of t he violations
and the harm suffere d.54 Proportiona lity of repar ations can only b e
achieved through the meticulous f ramework of reparations per se.
Proportionality ensures that nothing other than reparations are
accorded to the victim(s). Reparations are diverse: they take the form of
restitution, compensation, rehabilitation, satisfaction and guarantees
of non-repetition.55
Oxford Human Rights Hub, 3 November 2015, available at
uk/the-mau-mau-l itigation-justice-at-last/> (accessed on 10 January 2022).
48 See Van den Herik op cit note 13 at 699.
49 Prosecutor v Kunarac et al I T-96-23&23/1, Judgment, Appeals Chamb er,
12 June 2002 .
50 Ibid para 150.
51 Ibid.
52 Ibid para 135.
53 Ibid.
54 Basic Principles and Gu idelines on the Rig ht to a Remedy and Reparation
para 15.
55 Ibid para 18.
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Restitution is the restoration of the victim to their orig inal position
or circumstances be fore the commission of the crime.56 The Tr ibu nal e
Amministrativo Regionale of Italy reiterated a principle of international
law that the commission of a wrongful act, suc h as the subjugation
of people through military o ccupation, involves an obligation to
make reparation in order to re-establish the situat ion which existed
before the wrongful ac t was committed. The restitution of the Venus
of Cyrene, a marble sculpture r epresenting the goddess Venus in the
Greek settlement of Cyrene, which was shipped f rom Libya to Italy in
1915, is a notable illustration.57
‘The restitution of proper ty wrongly seized is t he rst remedy available
to a State as a result of a breach of the prohibition of the use of force.
It is only when restitution is impossible or inade quate that States may
resort to other forms of repa ration, including restitut ion in kind,
compensation, a nd apology.’58
The joint declaration by Germany and Namibia on colonial genocide
recognises that cult ural artefacts of a ffected communities were
shipped to Germ any.59 A proportional reparative measure would be
tracing their whereabouts and faci litating their retur n to the country
of origin. This is a v iolation that can be reversed or restituted. In a
joint communique of 1998 between Italy and Libya, Italy pledged to
return to Libya all m anuscripts, archives, documents, a rtefacts, and
archaeological pieces that were transfer red to Italy during and after
the occupation of Libya. The two countries dec ided to co-operate to
determi ne the aforementioned c ultural asset s and their whereab outs.60
Restitution may, however, not be practicable because full restoration
of the situation as it was before the wrong was committed, in cas es of
gross human rights violations, is not possible. This observ ation was
made by the Inter-American Court on Human R ights in the case of
Bulacio.61 Bulacio was a minor who sustained fatal i njuries following
police detention and brutality. In the wording of the court:
Reparation of the damage caused by br eaching an internat ional
obli gation requires, whe never feasible, full restitut ion (restitutio in
integrum), which involves re-establ ishment of the situation before the
56 Lubanga c ase, Decision Establ ishing the Pri nciples and Procedure s to be
Applied to Reparations, 7 Augu st 2012 para 223.
57 Case Venus of Cyrene – Italy a nd Libya, January 2012 at 4, available at
plone.unige.ch/art-adr/cases-affaires/venus-of-cyrene-2013-italy-and-libya/
case-note-2013-venus- of-cyrene> (accessed on 1 June 2022).
58 Lubanga c ase, Decision Establ ishing the Pri nciples and Procedure s to be
Applied to Reparations, 7 Augu st 2012 para 224.
59 Joint Declaration by t he Federal Republic of Ger many and the Republic of
Namibia para 7.
60 See Case Venus of Cyrene – Italy a nd Libya op cit note 57 at 3.
61 Judgment of September 18, 20 03, Inter-Am Ct H.R. (Ser C) No 100 (2003).
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violation. If this is not possible, as i n the instant case, this internationa l
Court must order adoption of measu res that, in addition to ensur ing
respect for the rights abr idged, will remedy the consequences caused by
the infract ions, and for compensation to be paid for damage caused.62
The court highlighted case s in which full restit ution is not possible
including those with respec t to the violation of the right to life, the
right to liberty and huma ne treatment, the right to a fair trial, and
judicial protection.63
The Conference on Jewish Material Clai ms against Germany rightly
noted that ‘no amount of money can make good the destruction of
human life and cultu ral values, or atone for the systematic annihilation
of the Jewish people’.64 Israel navigated this challenge by creating a
quantiable futuristic demand that arose directly from the Holocaust
– the settlement and rehabilitation of Jewish refugees i n Israel. The
aforementioned approaches did not rule out the relevance of an inquiry
into the rights violated, the consequences of the violations, and the
damage occasioned. The Inter-American Court on Huma n Rights
advances just indemnication or pecu niary compensation in addition
to positive measures to ensure non-repetition or non-recidivism of
the injurious acts as a means of mak ing reparation.65 It is important
to ascertain the natu re of the harm although its quantication is
rendered insignicant. For exa mple, Holocaust restitution payments
in Germany were categorised according to the natu re of atrocities,
including payments to forced labourers and slave workers,66 payme nts
to workers employed in a ghetto,67 and payments to displaced Jewish
persons. On the other hand, the Austr ian government makes payments
from the Reconciliation Fund direc tly to former forced labourers
or slave labourers or the children of those who were compulsorily
62 Ibid para 72.
63 Ibid para 73.
64 See Claims Confe rence: Conference on Jew ish Material Claim s against
Germany, available at w.claimscon.org/about/histor y/> (accessed
on 1 June 2022).
65 Judgment of September 18, 2003, I nter-Am Ct H.R. (Ser C) No 100 (20 03)
para 73.
66 Compensation payments were m ade from the Foundation on ‘Remembr ance,
Responsibility and t he Future’, established on 12 August 20 00 with
contributions from compa nies that used slave labour duri ng the Holocaust and
the German gover nment. See Holocaust Restit ution Payments: All Count ries
Summary, available at //guides.dss.gov.au/guide-social-security-
law/4/3/6/30> (accessed on 1 June 2022).
67 The German gover nment established the Ghet to Labour Compensat ion Fund
on 19 September 2007 to pay sy mbolic compensation for voluntar y work in
Holocaust-era ghettos. S ee Holocaust Restitution Payme nts: All Countrie s
Summary op c it note 66.
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transferred to Austria n territory during World War II.68 Austria also
established a General Settlement Fund t hat extended restitution to
those that suffered loss or damage as a result of events that occ urred
in Austria during t he National Socialist (Naz i) era or during World
War II. The Prisoner of War Compensation Act (KGEG) payments are
made to three distinct categories of persons, who were made prisoner s
of war or faced political persec ution during World War II.69 The
aforementioned classication of payments of restitution represents
meticulous regard for the individualit y of the effects of the Holocaust
on the victims. There is i nconsistency in practice in the framework
of the Germany–Namibia Accord. W hereas forms of victimisat ion
are clearly identied as genocide, enslavement and forced labour
in concentration camps, forced displacement, starvation to death,
dispossession of property, land, livestock, and cultura l artefacts, only
one blanket form of ‘restitution payment’ is provided for, which is in
the form of development aid.70
Compensation is a broadly applied remedy, which encompasses
all forms of damage, loss and injury including mater ial, physical and
psychologic al har m.71 It is a form of economic relief for damage that
cannot be undone,72 whether it is quantiable or unquantiable.73 The
Germany–Namibia Accord on the colonial genocide makes provision
for nancial compensation of over a billion Euros. The question is
whether this sum has a reparative ef fect. Compensation is essential
but has limits. First, it cannot by itself restore or replace the rights
violated .74 While recogn ising the remedial impact of Italy’s nancia l
compensation to Libya, Muammar Gadda, the former President of
Libya, remarked that ‘there is not an equivalent to what colonial Italy
… committed against the Libyan pe ople …’.75 Second, studies have
shown that nancial compensation to individua l victims may have an
‘adverse local impact due to envy and resentment’.76 Third, sus tainable
outcomes may depend on the nancial aptitude of the beneciaries. Van
den Henrik advances a favourable argu ment for nancial settlements
68 Holocaust Restitution Payments: A ll Countries Summary op c it note 66.
69 Ibid.
70 See Joint Declarat ion by the Federal Republic of Germany and the Republ ic of
Namibia para 19 and para 18 resp ectively.
71 Lubanga case, Decision Establishing t he Principles and Pro cedures to be
Applied to Reparations, 7 Augu st 2012 para 229.
72 Ntaganda ca se op cit note 39 para 84.
73 Lubanga c ase, Decision Establ ishing the Pri nciples and Procedur es to be
Applied to Reparations, 7 Augu st 2012 para 229.
74 Ntaganda case op cit note 39 para 84.
75 Colonialism Repa ration, available at
en/compensations/italy-libya.ht ml> (accessed on 1 June 2022) [translation].
76 Van den Herik op cit note 13 at 704.
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that are applied to transformative reparation measures for the benet
of the collect ive.77 At a glance, the amount promised by Germany to
Namibia seems like one of these.
Rehabilitation facilitates the reintegration of the victim(s) into
so ci et y. 78 It aims to restore a function or impart a new sk ill required
as a result of the changed circu mstances of the victim(s) due to the
cr ime (s).79 The intended outcome is to re-establish, as far as pos sible,
the victim’s ‘independence, physical, mental, social, and vocational
ability, and full inclusion and participation in soc iety’.80 Rehabilitat ion
comprises a broad range of measures including rehabilitative medica l
services such as psychiatr ic and psychological care, vocational training
and education, mediation, micro-credits, income-generating activities
or sustai nable work.81 Although rehabilitation applies best to the actual
victims, it is relevant to descendants of vic tims such as the Herero and
Nama based on the premise that trauma c an be inherited. ‘From mass
murder to genocide, slavery to colonial suppression, acts of atrocity
have lives that extend beyond the horric moment. They engender
trauma t hat echoes [for ge nerations].’82 While vict ims of trauma
live with the scars of memory, the recipients of transgenerational or
multigenerational trauma live with a ‘post memory’.83 A reparations
framework for the Nama and Herero needs to reect th is important
perspective.
‘Satisfaction refers to measures that ack nowledge the violation
and aim to safeguard t he dignity and reputation of the vict im.’84 They
include, rst, a public apology that acknowledges the facts and accepts
responsibility; expressions of regret or remorse a re distinguishable
from apologies and have been rejected as unsatisfactor y because
of their inability to create obligations.85 Seco nd, awareness and
sensitisation about the meaning, realities a nd consequences of the
crimes committed in the context of a par ticular case may support t he
rehabilitation and reintegration of the victims, a nd be an important
77 Ibid.
78 Ntaganda cas e op cit note 39 para 203.
79 Ibid.
80 Ibid.
81 Ibid.
82 Gabriele Schwab Hau nting Legacies: Violent Historie s and Transgenerational
Trau ma (2 010).
83 Ibid at 14.
84 Ntaganda case op cit note 39 para 8 8, citing ‘Comparative Study on the L aw and
Practice of Repar ations for Human Rights Violations’, African Cou rt on Human
and Peoples’ Rights, at 58, avai lable at n-court.org /wpafc/
wp-content/uploads/20 20/11/Comparative-Study-on-t he-Law-and-Prac tice-of-
Reparations-for-Human- Rights-Violations.pdf> (accessed on 7 June 2022).
85 Van den Herik op cit note 13 at 703.
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part of satisfaction.86 This observation was made by the International
Criminal Cou rt in relation to the crimes committed aga inst former
child soldiers. Rewriting colonial h istory with an emphasis on the
reality of its brutal effe cts on the dignity and civ ilisation of Africa would
reveal Africa’s pre-colonial power, hence countering the nar rative of
‘Africans as savages’. The roots of racial discrimination are t raceable
to the trans-Atlantic trade in a nd trafcking of enslaved A fricans, and
colonialism.87 This would facilitate the abilit y of Africans and people
of African descent, including t he Nama and Herero, to integrate more
meaningful ly into the world. Requiring each former colonial power to
integrate authentic pre-colonial African h istory and Africa’s colonial
history into its curricu la is an essential reparation measure. This should
be accompanied by guarantees of academic f reedom and a willing ness
to deploy African faculty to faci litate this endeavour.
Reparation measures are often complementary. Remedial efcacy
may require combining various moda lities. Germany and Namibia
anticipate the establishment of a joint trust or fund in order to
facilitate projects, which aim at improving reconciliat ion, 88 preserv ing
the memory of the colonial era,89 and undertak ing land reform.90 A
combination of these approaches, if adequately supplemented through
the necessary procedural guarantees and effectively implemented,
may form a reparations strategy.
3.4 Appropriateness
Appropriateness refers to ‘the fact that the forms and modalities of
reparation should be suitable, taking into account the harm, the
victims, the violations and the broader soc iety’.91 This concept relates
to the meaningful ness of the measures to the intended beneciaries.92
The measures must reect local, c ultural and customar y practices.93
The programmes should be self-sustai ning and dependent on local
expertise so t hat victims can benet f rom them over a long period
86 Ntaganda case op c it note 39 para 207.
87 CARICOM Ten Point Plan (context) op cit note 8.
88 Joint Declaration by the Fede ral Republic of Germa ny and the Republic of
Namibia paras 17–18.
89 Ibid.
90 Ibid para 16.
91 Lubanga case, Obser vations on Reparations in Res ponse to the Scheduli ng
Order of 14 March 2012 para 81.
92 Prosecutor v Ger main Katanga ICC -01/0 4-01/ 07 (Katanga ca se) Order for
Reparations pursu ant to Article 75 of the Statute, 24 March 2017, para 296.
93 Lubanga case, Decision Establishing t he Principles and Pro cedures to be
Applied to Reparations, 7 Augu st 2012 para 245.
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of time.94 The test for appropriateness is therefore due consideration
of the perspective(s) of the victim(s), followed by their informed and
voluntary approval of the outcome. A victim-centred approach to
reparation also mainstreams human rights-based approaches. This can
only be obtained by the vict ims’ effective part icipation in the process.
The Germany–Nam ibia Accord rightly provides that the largest
portion of the funds (EU R 1,050 million out of EUR 1,100 million) must be
allocated to the reconstruct ion and development support programmes
for the benet of the descendants of the affected commun ities.95 This
is seemingly a noble approach, but the claim for equal par tnership
with Germany on the governing a nd implementation structures of
the programmes poses the risk of d isproportionate inuence. This
particular c lause, which gives Germany a stake in the e xpenditure of
the funds, makes the arr angement look like development aid. Naturally,
Germany as the source countr y of the funds wil l have a higher stake
in the so-cal led partnership. This is contra ry to the foundations of
remorse, which should naturally accord dominance to the vic tims.
3.5 Promptness
Victims have a right to prompt reparations.96 Promptness relates to
the time when the payments commence and the time when they are
completed. It is closely associated with certainty a nd predictability.
The agreement between Israel and Ge rmany on reparations for the
Holocaust contains intricate details on the annua l instalments.
The rst payment was due on the date of the coming into force of
the agreement; the annual insta lments are of equal amounts and a
requirement of advance written notice was placed upon Ger many in
the likely event of a need to decrease the amounts of the insta lments,
but the minimum threshold was set by the pact .97 Similarly, the treaty
between Italy and Libya stated that Italy was liable to pay USD 250
million annually for 25 year s.98 Those frameworks stipulated, with
precision, what amounts were due and when. However, the Germany–
Namibia Accord simply states that ‘Germany commits herself to
94 Ibid para 246.
95 Joint Declaration by the Fe deral Republic of Germ any and the Republic of
Namibia para 18.
96 Ntaganda cas e op cit note 39 para 6.
97 Article 3(a), Agreement bet ween the State of Israel and the Federal Republic of
Germany, 10 September 1952, UN Treaty Ser ies, No 2137.
98 Article 8, Treaty of Fr iendship, Partnership a nd Co-operat ion between the
Italian Republic and t he Great Socialist Pe ople’s Libyan Arab Jamah iriya,
30 August 200 8, available at w.camera.it/_dati/leg16/lavori/
schedela/apriTelecomando_wai.a sp?codice=16PDL0017390#PD> (accessed on
1 June 2022).
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allocate [the] amount over a period of 30 years.’99 It is not clear when
the rst and other instal ments are due to Namibia; their size is also
not known. The terms depend on Germa ny. This undermines the
standards of entitlement on the part of vict ims and obligation on the
part of the perpet rator.
3.6 Adequacy
It is important for victims to receive adequate reparations.100
Reparations are not intended to enrich the victi m(s), but should
adequately repair the harm caused to the ex tent possible.101 The
Germany–Namibia Accord contains a bold statement that the amounts
offered, settle all nancial aspects of the issues r elating to the colonial
past.102 The statement imputes nality to the nancia l negotiations
with respect to the colonial cr imes of Germany in Namibia. Th is
raises the question of whether the amount promised is adequate, and
whether the victims should expe ct no more nancial compensation.
Reparations must be adequate to be effective. There is no evidential
basis for the presumption of adequacy since the issues relating to the
colonial atrocities in question were not explored. This could not have
been done without the participation of the vict ims. An assessment
of the extent of liability in mass cr imes must be characterised by a
determination of the number or likely number of vic tims.103 The
blanket statement on adequacy only serves the purpose of oust ing
the jurisdiction of a competent court to order nanc ial compensation
in respect of those cri mes. In effect, it pre-empts any possible fut ure
action for proper reparations by striki ng out the backbone of any
claim. It is disingenuous to declare that repar ations are nal without
ensuring that they are adequ ate.
The course taken by Germa ny in the joint declaration with Namibia
is similar to the defence tendered by the Netherlands, i n response
to a civil suit that was led by the sur viving relatives of the vic tims
of the Rawagede massacre in 200 8. The Dutch state acknowledged
the wrongfulness of t he summary executions, ex pressed regret,
and declared an alloc ation of EUR 850,000 in development aid to
99 Joint Declaration by the Fede ral Republic of Germa ny and the Republic of
Namibia para 18.
100 Lubanga case, Decision Establishi ng the Principles a nd Procedures to be
Applied to Reparations, 7 Augu st 2012 para 242; Prosecutor v Ahmad Al Faqi Al
Mahdi ICC-01/12- 01/15, Reparations Order, 17 August 2017 para 33.
101 Ntaganda c ase op cit note 39 para 99.
102 Joint Declaration by t he Federal Republic of Ger many and the Republic of
Namibia para 20.
103 Ntaganda case op cit note 39 para 230.
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the village of Rawagede.104 This approach was rejected by the cour t,
especially in relation to the sur viving widows of the victims. The cour t
held the state liable for damages to the widows.105 The Dutch state
subsequently agreed to pay EUR 20,00 0 per victim as repa ration in
addition to tendering a formal apology, which it did.106 Van den Herik
raises a valid question as to ‘whether artic ulations of regret and …
donation of development aid can be considered as specic expressions
of an effective remedy’.107 The Nairobi Declaration on Women’s and
Girls’ Right to a Remedy and Reparation discourages governments
from undertaki ng development instead of reparation.108 The Rawagede
case sets a precedent that reparations are di stinct in both form and
effect. Whereas repa rations are remedial, address a legacy of the past
and create a legal entitlement, development aid is prospective and
often imposes reporting obligations on the be neciary.
The CARICOM Ten Point Plan for Reparatory Justice advances the
perspective of reparations as a development strategy. ‘Their goal is to
use reparations payments to deal collectively with pres sing economic
and educational problems facing the citizens i n the Caribbean that
trace their origins to t he underdevelopment imposed by slavery,
slave trading, [colonial] genocide, and economic exploitation by the
European nations.’109 The Ten Point Plan proposes an indigenous
people’s development programme, cultural institutions, eradication of
illiteracy, a programme on African k nowledge, psychological rehabili-
tation, technology transfer and debt cancellat ion, among others.
4 CONCLUSION AND RECOM MENDATIONS
A declaration of the Bundestag in 200 4 contained the following
proclamation ‘Germany has to face its colonial past with al l necessary
clarity and in a determ ined manner.’110 The Germany–Nam ibia Accord
indicates a willingness to ma ke a reparations effort but cannot be
104 Ibid.
105 Ibid.
106 Ibid.
107 Van den Herik op cit note 13 at 697.
108 Principle 3 B, Na irobi Declarat ion on Women’s and Girls’ Right to a Remedy
and Reparation, available at < https://www.dh.org/IMG/pd f/NAIROBI_
DECLAR ATIONeng.pdf> (accessed on 6 June 2022).
109 ‘Call for Papers: Ten Point Prog ram for Reparations for Afr ican Ameri cans in the
United States’ (2014) 40 (5) Journal of Black Psycho logy 483, available at
journals.sagepub.com/doi/abs/10.1177/0095798414550775?journalCode
=jbpa> (accessed on 6 June 2022).
110 Declaration by t he German Federa l Parliament of 16 June 2004, ava ilable at
1049394> (accessed on 3 January 2022).
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described as an adequate reparations award. T he intended character
of the Accord as a reparations agreement is derived from its terms.
The ‘deal’ has a reparative character without a reparative effec t. The
specied conclusiveness of the agreement as a settlement of all t he
nancial aspect s of the issues between Germa ny and Namibia is a
manifestation of Germany’s pre- emptive attack on a proper reparations
process. Such a provision does not oust the jurisdiction of a cour t that
may competently consider a monetary reward within the fr amework
of reparations.
A reparations framework, whether resulting from a politica l
negotiation or a court process, must represent the desires of the
victims, and stipulate the ti meframe within which t he sums are to be
paid. The reparations must be proportional, appropriate, prompt and
adequate. The legitimacy of the negotiations between Germa ny and
Namibia, and the outcome, without the involvement of the victims
and their descendants, hangs in t he balance. The prolonged period
of 30 years within which t he promised sum must be paid may have a
neo-colonial effect, consider ing the power dynamics of one nation as
the giver and the other as the recipient. The Ger many–Namibia accord
raises concerns about the cur rent channels of negotiating reparations.
Reparations for colonial crimes have a strong undercur rent of tilted
power dynamics that need to be neutrali sed by stringent procedural
guidelines and standa rds; in between the lines is an a frmation of
neo-colonial sentiments that prevai l in contemporary inter-state
relations and geopolitics. Referring to the Dutch– Indonesia example,
Ethan Mark expressed t he key problem as
‘the overrepresentation of the coloniz er and [their] stand point,
and the virt ual absence of the voices of the former coloni zed, the
virtua l lack of representation or understa nding of Indonesian views,
Indonesian think ing, or Indonesian history’.111
The ‘colonisation’ of avenues to address the excesses of colonisation is
unacceptable to all.
It is therefore recommended that–
• The United Nations needs to set up an independent reparation
mechanism for the trans-Atlantic trade and trafcking in
enslaved Africans and colonial c rimes. Under the auspices of
the International Law Association, procedura l principles for
111 Ethan Mark, key note address delivered at the work shop: Decolonizing
Dutch Research, A Cr itical Consideration of the I ndonesia 1945–50 Project,
University of Leiden, 19 Oc tober 2017, cited with approval by Nicole L Immle r
and Stef Scagliola ‘Se eking Justice for the Mass Exec ution in Rawagede/Probing
the Concept of “Entangle d History” in a Postcolonia l Setting’ (202 0) 24:1
The Journal of Th eory and Practice 1.
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reparation mechanisms were adopted in 2014.112 They include
the victims’ right (i) to an effect ive mechanism to claim
reparation; (ii) to be heard, which should be respected in all
phases of the reparation mechanism; and (iii) to equal treat ment
without discrimination. In addition, the reparation mechanism
must (i) have an adequate organisational structure; (ii) be
accompanied by outreach activities; (iii) have adequate rules for
collecting, registeri ng and collecting claims; (iv) have adequate
rules for decision making, i ncluding valuation of claims; (v)
have adequate rules on legal recourse and exclusivity; (vi) have
adequate rules on compliance and enforcement; and (vii) have
adequate funding including voluntary contr ibutions.113
• The A frican Union should create a committee of expert s on
reparations to propel requests, and to negotiate and conclude
reparation agreements with stakeholders. Thi s committee must
be supported by relevant country teams t hat conduct research
and provide information from the relevant country. Africa
cannot afford to be unorganised on t his matter. In 1951, 23
major Jewish organisations met with the objective of seeki ng
negotiations with the West German government for the Jews’
suffering and losses dur ing the Holocaust.114 This culminated
in the formation of the Claims Conference. A Com mittee for
Jewish Claims on Austria was a lso established in 1952. Regulated
political settlements are seen to y ield better results in cases
of collective h istorical cr imes.115 In July 2013, the CARICOM
heads of government established a CARICOM Reparations
Commission, compr ising the chai rpersons of National
Committees on Reparations.116 The C ARICOM Rep arations
Commission was created ‘to establish the moral, ethical a nd
legal case for the payment of reparations by the governments
of all the former colonial powers, and the relevant instit utions
of those countries, to the nations and people of the Caribbea n
Community for the crimes agai nst humanity of native
112 Resolution 01/2014, Reparation for Victims of A rmed Conict, 76th Con-
ference of the Internationa l Law Association, 7–14 April 2014, available at
Washington-2014..pdf> (accessed on 6 June 2022).
113 Ibid.
114 See Claim s Conference: Confer ence on Jewish Material Cl aims against
Germany, available at w.claimscon.org/about/histor y/> (accessed
on 5 January 2022).
115 Van den Herik op cit note 13 at 704.
116 Jose Atiles- Osoria ‘Colonial State Cr imes and the CAR ICOM Mobilisation for
Reparation and Justice’ (Autu mn 2018) 7:2 State Crime Journal 349 –368 at 349.
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genocide, the Trans-Atlantic [trade in enslaved Africans], and
a racialized system of chattel slaver y’.117 On 1 April 2021, a Bill
to establish the Commission to Study and Develop Reparation
Proposals for Africa n Americans was tabled before the United
States Congress. The Commission wil l examine slavery and
discrimi nation in the colonies and the United States from 1619
to date and recommend appropriate remedies.118
• Reparation or similar agreements should contain a clause
requiring former colonial powers to integrate pre-colonia l
African histor y and Africa’s colonial history into their curr icula.
This should be accompanied by guar antees of academic
freedom and quotas for African h istorians, who are deployed in
the respective jurisd ictions as resource persons. Th is measure
is envisaged in the CAR ICOM Ten Point Plan.119
• An assessment should be made of the estimated harm
occasioned by a wrong and a comprehensive reparations
plan, beyond monetary compensation, should be made and
presented as part of the claim. Such a plan should pr ioritise the
needs of the victimis ed communities.
• Funds for reparat ion purposes should be paid promptly into
an independent trust fu nd, and administered equitably by
representatives of all stakeholders, including the vict ims.
The dates of the payments must be specied in the respe ctive
agreements and consequences stipulated in the likely event of
default .
• Research grants should be devoted to restoring the Af rican
history that colonialism destroyed, by way of reparations.
Representing history correct ly is essential for the dignity
of Africans bec ause the pride of Africans was ag gressively
destroyed and replaced with a new narrative.
• A negotiation of reparations properly so-called must be done,
while engaging the vict ims meaningfu lly and pursuing
proportional, appropriate, prompt and adequate measures such
as the tracing and repatriation of ar tefacts which were taken
from present-day Namibia by the German s.
117 The CAR ICOM Reparations Commi ssion, available at
reparations.org> (accesse d on 30 May 2022).
118 H.R.40 – Comm ission to Study and Develop Repar ation Proposals for Af rican
Americans Ac t, available at s.gov/bill/117th-congress/
house-bill/40/text > (accessed on 30 May 2021).
119 Point 7: African K nowledge Program, CARICOM Ten-Point Plan op cit note 8.
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