In 2017, the descendants of two Namibian tribes sued Germany in the U.S. federal court. Kenneth McCallion was the lead attorney representing the Herero and Nama peoples in their quest for reparations over Germany’s 1904-1908 genocidal campaign against their ancestors, where 80% of the Herero and 50% of Nama populations were killed in combat and concentration camps. While the case was ultimately dismissed, it provoked a re-examination of the understudied Herero and Namaqua genocide—and exposed the pervasive presence of harvested human remains in Western museum collections. The quest for reparations is ongoing, after a €1.1bn apology payment by Germany to Namibia was negotiated without representation from the Herero and Nama peoples, who are now minorities within Namibia.
I sat down with Mr. McCallion to discuss the origins of the case, the role of legal process in redressing historical injustices, and the complexity of seeking justice for international crimes in domestic rather than international court systems. The below interview has been edited for length and clarity.
Aaron Jerome (AJ): What’s your professional background and how did you come to practice international human rights law?
Kenneth McCallion (KM): I handled numerous civil rights cases in the U.S. courts, and was asked by Professor Richard Weisberg, then at Cardozo Law School, to take the lead counsel position in a Holocaust related case against the French Banks, who froze the bank accounts of their Jewish clients in France even before being required to by Nazi and Vichy French law. That stripped the Jewish communities of their ability to flee the country before the roundups and transport to the concentration camps. I then was an active legal participant in the Holocaust cases against the German government and German industry that led to a global settlement and treaty between Germany and the U.S. This established a multi-billion-dollar fund for restitution payments to the victims in the U.S., Europe and the Eastern European countries, including Russia, where labourers were forced to work in German factories with little or no compensation.
AJ: How did this case come about? How did you get involved with the Herero and Nama?
KM: I was asked to attend a conference on the genocide in Namibia – the first genocide of the Twentieth Century – that was sponsored by the Holocaust Museum in Long Island where I first met representatives of the Ovaherero and Nama communities who were seeking reparations from Germany. The men were dressed in colourful military-style uniforms and the women wore the beautiful Victoria-style dresses and native headwear that is typical of the Ovaherero and Nama peoples for formal occasions.
Over the next few months, as we met and talked to their leaders both in Namibia and in the U.S., we learned that, in addition to the mass killings of their people during the 1903 to 1908 period by German colonial forces in what was then German Southwest Africa (now Namibia), they also had their lands and cattle expropriated, which were the two foundations for their wealth and well-being. Without their lands and livestock, they were condemned to generations of poverty.
In addition, the German government sold the skulls and bones of the victims to various museums, including the Museum of Natural History in Manhattan, and we discovered that some of these remains were still at the Museum. We used this fact to claim that the United States District Court in the Southern District of New York had jurisdiction over this ‘takings’ by Germany in violation of international law (prohibition against genocide and crimes against humanity) and that it had a sufficient impact on commerce within the New York jurisdiction since the human remains had been sold to the Museum as part of a lucrative international trade at the time in human bones and skulls.
While the federal courts ultimately denied us jurisdiction on technical grounds, they affirmed that the atrocities that took place were in fact a genocide and that the victims and subsequent generations were entitled to justice and compensation in some forum.
AJ: How has Germany’s treatment of its historic crimes in Namibia (and other parts of Africa) differed from its treatment of the Holocaust?
KM: The German Government and German industry ultimately acknowledged its responsibility of its horrific crimes against European Jews and slave/forced labourers from Eastern European countries that were not Jewish. In the Ovaherero and Nama genocides, Germany acknowledged – for the most part — its historical responsibility but refused to negotiate with the recognized leadership of those communities. Instead, Germany negotiated only with representative of the Namibian government, which is largely dominated by a tribe that was not targeted in the mass killings which the Ovaherero and Nama were subjected to after they resisted the German forces.
To be perfectly blunt, Germany felt it had to settle the Holocaust claims because it became an important political issue in the U.S. and the U.S. State Department set up a special office just to work on settling Holocaust related claims. In addition, there was a threatened boycott of Lufthansa and boycott by large public pension funds of any investments in German industry.
The Ovaherero and Nama, and other African victims of genocide, just did not have the kind of economic leverage over Germany that the U.S. and the international Jewish organizations were able to exert over Germany.
AJ: What were the effects of the case, as you see it? Did it advance the Herero and Nama’s quest for justice?
KM: Yes, I think it substantially advanced their quest for justice since it broadened public awareness in the U. S. and internationally, while previously it had limited coverage in the German and Namibian media. The findings of the U.S. Court that the issue should be brought before an international tribunal gave added energy to the filing of claims before various U.N. human rights agencies, which demanded that Germany explain itself as to why the Ovaherero and Nama leadership were being excluded from the negotiations. The U.N. Convention on the Rights of Indigenous Peoples mandates that the peoples who were and are being impacted must be participants in the discussions regarding remedies, including restitution. In addition, a judicial case was brought in the Namibian courts that is still ongoing, and the settlement negotiated between the Namibian government and Germany seems to be dead in the water.
AJ: Could you explain some of the issues arising from Germany’s 2021 €1.1bn payment to the Namibian government, who accepted Germany’s ‘apology’?
KM: My understanding is that Germany promised the Namibian government substantial foreign aid, which was not explicitly denominated as reparations for genocide, but as part of a general “apology” for unspecified wrongs during the colonial period. It fell far short of an agreement on reparations for genocide and could not bring the matter to ‘closure’ for Germany since the impacted communities (i.e., Ovaherero and Nama tribal communities) were not involved in the discussions. As their leadership says: ‘You cannot talk about us without us, and until we are included, there can never be any final peace.’
AJ: Why did you choose to litigate in the US court system rather than through the international courts?
KM: It was the least worst of the various options.
In 1789, the alien tort statute invited and conferred universal jurisdiction to any non-US citizens to sue in the courts, such as victims of the Barbary pirates in the Mediterranean. Courts since closed their door on the concept, and while some other countries have toyed with the idea of universal jurisdiction, there’s no international norm. Now the US is opposed to it because they want to avoid US officials being dragged into international forums. States are very tied to sovereignty, but you probably know that sovereignty is a magnificent anachronism: the top 50 firms globally could probably buy the poorest hundred countries without many digestive issues…
International Courts such as the Hague are restricted to cases brought by governments, which prevents indigenous peoples and Non-Governmental Organizations (NGOs) from commencing actions in international tribunals.
Enforcement might actually be easier than jurisdiction. Once you get a judgment, which can be time consuming and costly, judgements are regularly enforced by parties to the Hague Convention, like the UK or US. But getting the basic jurisdiction is really not there. In an ideal world, there should be a remedy for every wrong, but that’s not necessarily the case.
AJ: Do you think the international courts are fit for purpose when it comes to seeking historical reparative justice?
KM: Not at all, since they do not grant jurisdiction to indigenous peoples or NGOs. Sovereign states have a monopoly on international tribunals, which is grossly unfair since the Ovaherero and Nama had their own sovereign countries before they were annihilated by Germany.
AJ: What other options are available?
KM: The UN Commission on Indigenous Peoples and other similar UN Commissions.
AJ: Do courts play a strategic role in broader political movements to address these issues, even if they do not produce concrete outcomes?
KM: Yes, because for a human rights cause to be successful, it requires both a judicial initiative in the courts as well as effective public relations and political campaigns influencing the courts of public opinion. It is a three-legged stool, and a cause can be successful without the judicial component necessarily succeeding. The settlement with Germany and German Industry for Holocaust related claims came after a string of unsuccessful cases in the U.S. Courts, but Germany was finally forced to the bargaining table as a result of the other key components: public relations and political pressure that became too much for Germany to ignore.
AJ: Do you have any advice for the next generation aspiring to address historic human rights injustices?
KM: I’ve been lecturing at Johns Hopkins and other institutions at the undergraduate and graduate level, and there’s a much higher awareness of the importance of human rights issues today compared to when I was in school. The general concepts of war crimes and violations of international law go back quite a [long] ways to at least 1885, but the enforcement of them and general public awareness of them didn’t blossom until the Nuremberg trials after WWII.
Unfortunately, enforcement of international law and norms in the public arena has certainly slipped, I think, over the last decade or two, but most recently particularly with world events in the Middle East and elsewhere, like the genocides in east Africa. Those have highlighted the issue of awareness of human rights violations in creating some forum, be it the UN or some other entity, where those norms can be enforced. That’s the real challenge for the next generation, but certainly the awareness of the issues is very much there, and that’s an important first step for finding a remedy.
In my work on Namibia, though our initiative in the US courts was not ‘successful,’ it led us to various UN forums and Namibian courts. Coming up with creative workarounds and remedies, as well as lobbying and becoming politically active to raise awareness in the US and elsewhere, makes me cautiously optimistic. Many NGOs are now well-funded and researching these issues, which wasn’t the case 50 years ago. There’s an economic and financial base for human rights initiatives in the legal, political, and public relations fields now. The degree of enthusiasm I see at colleges and universities leads me to believe that the next generations will come up with potential remedies, or at least increased awareness, so that international norms are observed or enforced when broken.
To labour in this field, you need some innate optimism. I think it’s a temperamental type of thing. In the human rights field, we can’t be pollyannas, there has to be some realism, but there has to be an appeal to the better angels of human nature. That’s an important component.