By Howard Rechavia-Taylor
German colonial genocide has been the subject of a New York court case since 2017. Diasporic Herero and Nama Indigenous people from the U.S., Namibia, South Africa, Canada, and Botswana have been present as plaintiffs in a class action lawsuit– many having flown across the world to be present in court. They have sought, and continue to seek, reparations for the murder of their ancestors and the expropriation of their lands after genocide at the hands of the German empire between 1904 and 1908. They also seek remedy from the Namibian and the German governments who have together excluded the Herero and Nama from ongoing intergovernmental negotiations concerning “how to come to terms with the past.” In the words of Nama Chief Johannes Isaak, “We have never asked for anything more than a fair accounting—that is what we seek in New York.” The case has made news in major international media, spawned numerous documentaries, and continues to proceed through the New York courts. In my dissertation, I examine the manner in which the German state is dealing with reparations demands for the Herero and Nama genocide, exploring the contours of German postcolonial and post-Shoah politics of recognition. I also focus on the fraught historical relationship between Black and Jewish demands for reparations, and the attempts of white supremacists and white nationalists to modify or disrupt these demands.
The Herero and Nama case against Germany rests upon a precedent, beginning in the 1980s, of American District Courts adjudicating some cases involving violations of international law that took place outside of American soil. Similar to a number of cases in recent years, such as those involving Black South Africans suing for Apartheid, the Herero and Nama case against Germany looks to American domestic law, specifically the Alien Tort Claims Act, in order to seek remedy at an international scale. This is not unusual. U.S. domestic courts have long been looked up to as places where legal remedy can be offered for charged breaches of international law.
Despite the relatively common nature of such cases, however, the majority of people across the political spectrum consider this case against Germany to be paradoxical and exceptionally confusing. Responses to this case from media commentators, German and Namibian politicians and state lawyers, or at activist press conferences, ask questions that tend to repeat themselves in their confusion: Why are they suing in the United States, and not in Germany, in Namibia, or an “international court?” Are all Herero and Nama people represented? What about the ICJ and the ICC? Do the plaintiffs not realize they will never win a case in New York City? Isn’t it paradoxical to deal with an international and historical case in a New York court? Why would reparations activists from Namibia go to New York City to demand reparations from Germany? Such questions have also been asked of me when I discuss this case at conferences and workshops, and when I have interviewed a number of interlocutors in Germany and in Namibia.
In this piece, I aim to consider why the existence of this case engenders so much confusion. I want to suggest that the widespread reaction to Namibian activists suing in New York reflects the deep fragility of the international legal order when it comes to the question of reparations for colonialism and slavery. This fragility engenders confusion in subjects who believe in the possibility of that very international legal order, however one imagines its contours, to right the wrongs of the past with relative ease. A domestic court in New York City is not the space where most imagine adjudication concerning the evils of colonialism and genocide would take place. It should happen somewhere less American, somewhere more international, less tainted. Herero and Nama activists are therefore producing widespread confusion in what seems to be a kind of liberal common sense that dictates that there must be an appropriate space to bring reparations demands.
I use the term liberal common sense, with the knowledge of its deeply ideal typical qualities (obviously not everyone who responds to this case agrees, but there are common patterns), and following from such writers as Antonio Gramsci (1971) , Ann Stoler (2010), Kate Crehan (2016), Mark Rifkin (2014), Nadia Abu El-Haj (2008), and Savannah Shange (2019), to exemplify the ideological manner in which global liberal legalism produces a set of assumptions that tend to be taken for granted. In this context, I am arguing that international institutions and the liberal legacies that sustain them produce and influence forms of common sense across a number of social strata that cause many of us to think, feel, and believe that international law and international institutions can or could deal with things. What would it mean to take this common sense as an object of analysis—to interrogate its contours? What do these kinds of sedimented common sense about the global liberal order obfuscate, what genealogies do they obscure, and what racial dynamics do they underscore? In order to delve further into such questions, I want to take us briefly through some of the background to this case.
The Herero and Nama Genocide(s)
The majority of the populations of both the Herero and the Nama people were killed between 1904 and 1908 as a result of a mass extermination policy initiated by German colonial troops in alliance with settlers in South West Africa, now an independent Namibia, when the territory was a German colony. The genocide was part of a wider settler colonial process in which Indigenous peoples in Namibia were deprived of their lands and livelihoods through genocidal violence. Their lands were then forcibly occupied by white settlers who dominated and occupied the country further under a decades-long occupation by the South African apartheid regime. These lands are predominantly still in white hands in a Namibia that has not fully decolonized. The genocide was part of a scientific racial machine, crucial to the emerging pseudoscience of eugenics that would reverberate across the world. Herero and Nama skulls that were taken at the time to be used for scientific “experimentation” continue to sit in a number of European and American institutions today—not least the American Museum of Natural History. This history of genocide in Namibia has deeply influenced both anti-Black racism and antisemitism in Germany and beyond, and attention to it is today growing exponentially both in and outide of academia.
For decades, however, this history of genocide that far predated the Shoah was hardly spoken of in either Germany or apartheid South Africa, the country that ruled over Namibia until 1990. Today, descendants of the victims and survivors of this genocide are clamouring for justice, and the German state is responding in ways that accept what politicians call “moral and historical” responsibility, while refusing what they call “juridical” responsibility—and referring to what happened through the lens of “historical atrocity” rather than “genocide.” In the words of Herero activist and politician Esther Utji Muinjangue, “The German government are so careful not to use the word ‘genocide’ because as soon as they do then they have to commit themselves to something.” In response, a large number of Herero and Nama reparations activists have sued Germany in New York City. They look to the New York courts to upset the current state of affairs and to demand reparations.
Very few observers dismiss the plaintiffs’ demand for reparations entirely, but the majority of commentators—mirroring the words of representatives of the German state in the courtroom itself—express deep confusion about the manner in which demands are taking place. There is something that doesn’t seem to “fit” about a reparations case concerning a German colonial genocide in Namibia taking place in the heart of the world’s (dwindling) superpower, and there is a widespread desire to try to “fix” that from the outside—by asking activists to bring the case somewhere reasonable. This schema of “behaving unreasonably” is one that I would argue is applied by German officials to describe the behavior of Herero and Nama activists, and that is implied consistently in the legal filings of the German state. This is a schema that is suffused with racism, an accusation of “Black unreason” (Goldberg and Mbembe 2018), and also of Black and Indigenous childishness, in a context where Black and Indigenous activists meet the representatives of a white nation-state.
Yet Herero and Nama activists cannot simply go to the “reasonable” institution that liberal common sense seems to persistently conjure. There is no international court to date that has afforded itself, and been afforded, the jurisdiction or the temporal breadth to consider the legacy of Belgium in the Congo, of settler colonialism and native genocide in Australia and the U.S., of enslavement in the Americas. Cases that have dealt with these legacies such as that of the Mau Mau and the Rawagede Massacre have taken place in domestic courts, in Britain and the Netherlands respectively, and they have involved crimes committed in living memory and upon bodies seen as having undergone a form of harm where there is an identifiable injury. Such a case would be almost unthinkable in any international court, and certainly in a German court. The gap between a global legal liberal common sense that desires or believes in the existence of an international and atemporal reparatory space and the fact that such a space does not exist, produces multiple confusions. It demonstrates the deep fragility of a liberal international order that rests upon institutions such as the ICC, the ICJ, and the UN. In their apparently “unreasonable” behaviour, court cases such as the Herero and Nama case in New York city press upon and highlight that fragility.
Sedimented forms of common sense obscure as much as they reveal relations of domination and pasts of political violence. If it is true that there is something like a form of liberal common sense that dictates that international law and international institutions can or could deal with the legacies of white supremacy and colonialism in the form of reparations in a reasonable venue, then what might the work of this common sense be doing to obscure? And what kinds of dissonance, what kinds of constraint, what kinds of cruel optimism does the eventual disappointment of this common sense produce (Berlant 2011)? As Yukiko Koga has argued in the case of Chinese claims against colonial Japan, such cases almost never stand “before the law,” they are always already “between the law,” for a variety of reasons, not least due to temporal limitations (Koga 2016). The Herero and Nama case in New York is certainly “between the law.” The question for those who wish to use the law to address the legacies of racial capitalism, white supremacy, and colonialism becomes whether to fight to institute a new form of global legalism that would address the legacies of white supremacy and colonialism; to give up on the law altogether as a means of dealing with racial capitalism and its histories (Robinson 2005), or commit to the work of fighting with existing legal instruments amongst others, recognizing that they are a flawed tool in the context of a deeply fragile international legal order.
Howard Rechavia-Taylor is a PhD candidate in Anthropology at Columbia University in the City of New York. His research interrogates the politics of recognition of postcolonial and post Shoah Germany by analysing ethnographically how the German state comes to respond to demands by reparations activists for colonial genocide in Namibia. He deals with related questions concerning the relationship between antisemitism, Islamophobia, and anti-Black racism in Europe, reparatory justice and critical human rights, and the law and politics of psychological discourse concerning trauma and its intergenerational transmission. Howie’s ethnographic research is supported by the Wenner-Gren Foundation and the Berlin Program for Advanced German and European Studies. He has written online for websites such as Al Jazeera and Open Democracy, as well as for organisations such as the Rosa Luxembourg Foundation. He tweets very occasionally @howierechavia.
 An example of an excellent documentary on the topic is “Skulls of my People” by Vincent Moloi.
 This was a result of a Cold War reuptake of the Alien Tort Claims Act- an American law from 1789 that allowed federal courts to turn to the “law of nations” to adjudicated international human rights cases. It was rarely used until the 1980s.
 Rita Kesselring has written about this in a previous Emergent Conversation: https://polarjournal.org/rita-kesselring-university-of-basel/
 This would obviously need defining in a longer piece. I am taking the term from Eric Posner (2011) and using it here to refer to the faith in the notion that international liberal institutions have the power, or ought to have the power, to constrain nation-states and other political actors.
 Zoe Samudzi’s ongoing work touches closely upon this.
There is a growing literature on German colonialism, Namibia, eugenics, and relations between Germany and Namibia throughout the 20th century. If you are interested feel free to e-mail me for a reading list. A recent book about the genocide, one of the first books written by a descendant of a genocide victim, is entitled: Mama Penee Transcending the Genocide by U.E.K Katjivena
 I borrow from Gramsci in my thinking about a common sense. See for example Gramsci’s proposition that “Every social stratum has its own “Common Sense” and its own “Good Sense,” which are basically the most widespread conception of life and of man.” (Gramsci 1971:326, n5)
Abu El-Haj, N. 2008. Facts on the Ground: Archaeological Practice and Territorial Self-Fashioning in Israeli Society. Chicago: University of Chicago Press.
Berlant, L. 2010. “Cruel Optimism.” In The Affect Theory Reader. Pp.93-117.
Crehan, K. 2016. Gramsci’s Common Sense: Inequality and Its Narratives. Durham, NC: Duke University Press.
Goldberg, David Theo and Mbembe, Achille. 2018. The Reason of Unreason: Achille Mbembe and David Theo Goldberg in Conversation about Critique of Black Reason. Theory, Culture & Society 35(7-8):205-227.
Gramsci, A. and Hoare, Q. 1971. Selections from the Prison Notebooks. London: Lawrence and Wishart.
Katjivena, U.E.K. 2020. Mama Penee Transcending the Genocide. Windhoek, Namibia: University of Namibia Press.
Koga, Y. 2016. “Between the Law: The Unmaking of Empire and Law’s Imperial Amnesia.” Law & Social Inquiry 41(2):402-434.
Rifkin, M., 2014. Settler Common Sense: Queerness and Everyday Colonialism in the American Renaissance. Minneapolis, MN: University of Minnesota Press.
Robinson, C.J. 2000. Black Marxism: The Making of the Black Radical Tradition. Chapel Hill, NC: University of North Carolina Press.
Shange, S. 2019. Progressive Dystopia: Abolition, Antiblackness, and Schooling in San Francisco. Durham, NC: Duke University Press.
Stoler, A.L., 2010. Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense. Princeton, NJ: Princeton University Press