THE GENOCIDE OF THE CRIMEAN TATARS FROM 1944 TO THE PRESENT

The Crimean Tatars were subjected to an intentional campaign of genocide and ethnic cleansing in 1944, when Stalin and the Soviet leadership ordered the forcible deportation of the Crimean Tatars from Crimea. Soviet propaganda sought to justify this mass deportation as a form of collective punishment for collaborating with the Nazi occupation regime in during 1942–1943. Most scholars and commentators, however, agree that the true aim of the Soviet government was the ethnic cleansing of the Crimean Tatars. This constituted the continuation of a policy practiced earlier in the Caucasus, whereby ethnic groups were selected to be deported and then charges of “treason” were fabricated.

Soviet motivations for the elimination of the Crimean Tatars included the strategic location of Crimea next to the Black Sea and close to Turkey. Another motivation was their close historical and cultural ties with Turkey. Since the Soviet Union had a long-term plan to annex of the Ardahan and Karsprovinces of Turkey, and to demand naval bases at the Turkish Straits, the deportation of the Crimean Tatars took place in preparation for a possible future Soviet-Turkish conflict.

At least 238,500 people were deported, mostly to the Uzbek Soviet Socialist Republic. This included the entire ethnic Crimean Tatar population. A large number of deportees (more than 100,000 according to a 1960s survey by Crimean Tatar activists) died from starvation or disease as a direct result of deportation. This was a clear-cut case of genocide and “ethnic cleansing.”

Prior to the Stalinist repression, the Crimean Tatars had long been recognized as the indigenous people of the Crimean Peninsula, and the Crimean Autonomous Soviet Socialist Republic (Crimean ASSR) was established as an integral part of the Soviet Union. Under this administration, Crimean Tatars enjoyed cultural autonomy and the promotion of their culture, and the Crimean Tatar language had co-official language status along with Russian. Crimean Tatar cultural activities flourished, including establishment of cultural institutions, museums, libraries and theaters.

This “golden age” of Crimean Tatar culture and political autonomy ended when Stalin and the other Soviet leaders embarked on a brutal and intentional campaign to wipe out the Tatar people from the Crimean Peninsula. The Soviet leadership ordered the banishment of the Crimean Tatars to the Uzbek SSR. The operation was to be completed before June 1, 1944, and all property left behind would be confiscated by state authorities.

The deportation began on May 18, 1944 in all Crimean-inhabited localities. The forced deportees were given only 30 minutes to gather personal belongings, after which they were loaded onto cattle trains and moved out of Crimea. The deportees were brought to central gathering stations in Simferopol and Bakhchysarai, and after a short waiting period, loaded on trains. At the same time, most of the Crimean Tatar men who were fighting in the ranks of the Red Army were demobilized and sent into forced labor camps in Siberia and in the Ural mountain region.

According to eyewitness accounts, the Russian NKVD officials forgot to deport the Crimean Tatars in the fishing villages of the Arabat Spit. On July 19, 1944, when Soviet authorities learned about these villages, orders were issued that no Crimean Tatar should be left alive within 24 hours. Following this, all inhabitants of these villages were locked up in an old and big boat, which sailed to the deepest part of the Azov Sea and was then sunk. Soviet soldiers waited in a nearby ship with machine guns.

The train journey of the deportees to the destinations was carried out under harsh conditions and resulted in a large number of deaths. According to official Soviet data, 7,889 people, amounting to approximately 5% of the Crimean Tatar population was presumed dead during the deportation, but in all probability, these estimates were grossly understated. The deportation was carried out in sealed box cars, and thousands of deportees died because of thirst. The cars were called “crematoria on wheels” by Crimean Tatars. The doors and windows were tightly bolted to prevent the entry of fresh air, there was no medical care and little food. This led to the deaths of especially elderly people and children, who could not withstand the suffocating conditions and the lack of food. Grigorii Burlitskii, a NKVD officer overseeing the deportation who later defected, reported that “they were packed into wagons like sardines, the wagons were locked and sealed and put under the guard of military detachments”. According to testimonies, the doors of the cars were only opened upon arrival to the Kazakh steppe, where the dead were dumped along the railway track, with the deportees not given the time to bury them.

The deportation was poorly planned and executed. Local authorities in the destination areas were not properly informed about the scale of the matter and did not receive enough resources to accommodate the deportees. The lack of accommodation and food, the failure to provide proper clothing to help the deportees to adapt to new climatic conditions and the rapid spread of diseases further decimated the Crimean Tatar people during the first years of exile.

Upon their arrival in Central Asia, Crimean Tatars were forced to live in special settlement camps, surrounded by barbed wire. Leaving the camps was punished by five years of hard forced labor. Many Crimean Tatars were also made to work in the large-scale projects conducted by the GULAG system. In these forced labor camps, deportees were assigned the heaviest tasks available and awoken before dawn for 12-hour workdays.

In Uzbekistan, Stalin ordered the settlement of Crimean Tatars in kolkhozes (collective farms), sovkhozes (state-owned farms) and settlements around factories for industrial and agricultural production. The deportees partially provided the required workforce for the industrial development of the area. Regardless of their former profession and skills, Crimean Tatars were forced to do heavy labor. Their places of residence consisted of barracks, makeshift shelters, parts of factories and communal housing.

Crimean Tatar activists carried out a census in all the scattered Tatar communities in the middle of the 1960s. The results of this inquiry show that 109,956 (46.2%) Crimean Tatars of the 238,500 deportees died between July 1, 1944 and January 1, 1947 due to starvation and disease.

The Soviet government also efficiently destroyed all remaining traces of Tatar culture.  This included the destruction of Tatar monuments and burning of Tatar manuscripts and books. Tatar mosques were converted into movie theaters and warehouses; gravestones of Tatars were used as building material. Exiled Crimean Tatars were banned from speaking of Crimea, and official Soviet texts, including the Great Soviet Encyclopedia, erased all references to them. When applying for internal passports, “Crimean Tatar” was not accepted as an existing ethnic group and those that designated themselves as “Crimean Tatars” were automatically denied passports.

Soviet authorities also ordered the renaming of all Tatar place names (including mountains and rivers), and a decree of the RSFSR Supreme Soviet Presidium on December 14, 1944 required the renaming of all districts and district centers to Russian-language names. In total, more than 1389 Crimean Tatar towns and villages were renamed.

The Soviet propaganda machine worked hard to hide the true nature of the deportation from the domestic and international media by falsely claiming that it was “voluntary”. The deportations were referred to as “resettlement.” Crimean Tatars were depicted as “bandits” and “thieves,” and were accused of being Nazi agents.

On April 28, 1956, by the decree of the Supreme Soviet Presidium of the USSR, the Crimean Tatars were released from special settlement, accompanied by a restoration of their civil rights. In the same year, the Crimean Tatars started a petition to allow their repatriation to Crimea. They held mass protests in October 1966, but these were violently suppressed by the Soviet military. On June 21, 1967, after a meeting between representatives of the Soviet government and a Crimean Tatar delegation, prompt rehabilitation of Crimean Tatars was promised, but never fulfilled. In August and September 1967, thousands of Crimean Tatars took to the streets to protest in Tashkent.

A decree of the Supreme Soviet Presidium was issued on September 5, 1967 exonerating the Crimean Tatars, but the Soviet government did nothing to facilitate their resettlement back to Crimea, or to make reparations for the loss of lives and confiscated property. In 1968, a token 300 families were allowed to return, but this was only for propaganda purposes. Crimean Tatars, led by the Crimean Tatar National Movement Organization, were not allowed to return to Crimea from exile until the beginning of the Perestroika in the mid-1980s.

The Crimean Tatars began repatriating on a massive scale beginning in the late 1980s and continuing into the early 1990s. The population of Crimean Tatars in Crimea rapidly reached 250,000 and leveled off at about 270,000. There are believed to be between 30,000 and 100,000 remaining in exile in Central Asia.

Finally, in November 1989, after the end of the Cold War, the Soviet government acknowledged responsibility for this clear violation of international law. In November 1989, the Supreme Soviet of the USSR recognized the deportation as a crime against humanity of the highest degree. On April 21, 2014, following the annexation of Crimea by Russia, President Vladimir Putin of Russia signed a decree that “rehabilitated” Crimean Tatars and other ethnicities who suffered from Stalinist repressions in Crimea. However, this decree proved to be hollow, not only because there was no compensation, reparations or restitution offered, but also because Russia instituted a crack-down on Crimean Tatar dissidents who opposed the annexation and favored a continuing relationship with Ukraine. Leaders of the Crimean Tatar opposition have been subjected to prolonged arbitrary detention, which itself is a recognized violation of customary international law, and the general Crimean Tatar community has been subjected to a continuing reign of terror and Crimes Against Humanity, including arbitrary killings, arbitrary confiscation of property, state-sponsored and widespread theft of personal and real property, extortion and harassment of every possible variety.

It can reasonably be argued, therefore, that the genocide of the Crimean Tatars, which started in 1944, continues up until the present.

The mistreatment and persecution by Russia of the Crimean Tatars meets the generally accepted definition of genocide, since it specifically targeted a particular ethnic group for destruction, and implemented calculated policies to achieve that goal.  The Genocide Convention of 1948 specifically recognizes genocide to include: “Deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part.” This is precisely the policy that the Soviet Union formulated and carried out in 1944, and continues today.

The Alien Tort Statute and International Human Rights

The Alien Tort Statute (28 U.S.C. § 1350), also called the Alien Tort Claims Act (ATCA), was one of the first statutes enacted by the U.S. Congress as part of the Judiciary Act of 1789. It opened the doors of the U.S. courts to all foreign citizens (i.e. “aliens”) with regard to any civil wrongs (i.e. torts) committed in violation of customary international law. The language of the statute is both short and simple: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

Immediately after its passage, the Alien Tort Statute (“ATS”) fell into virtual obscurity. There were only two reported court cases in the almost 200 years between 1789 and 1980.

Since 1980, however, there have been a virtual avalanche of ATS cases brought in federal courts on behalf of foreign nationals, and the courts have generally interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States. Lawyers associated with The Center for Constitutional Rights started the ball rolling in Filartiga v. Pena-Irala, a case brought on behalf of two Paraguayan citizens resident in the U.S against a Paraguayan former police chief who was also living in the United States. The plaintiffs alleged that the defendant had tortured and murdered a member of their family, and they asserted that U.S. federal courts had jurisdiction over their suit under the ATS.

At first, the case hit a stone wall in the district court, which dismissed the complaint for lack of subject-matter jurisdiction, holding that the “law of nations” does not regulate a state’s treatment of its own citizens. However, the  U.S. Court of Appeals for the Second Circuit reversed the decision of the district court. Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980). First, it held that the ATS was a constitutional exercise of Congress’s power, because “the law of nations…has always been part of the federal common law“, and thus the statute fell within the federal-question jurisdiction of the U.S. courts. Second, the court held that the contemporary law of nations had expanded to prohibit state-sanctioned torture, and that various United Nations declarations, such as the Universal Declaration on Human Rights, also prohibited official torture. The court therefore held that the right to be free from torture had become a principle of customary international law.

Following the Second Circuit’s decision in Filartiga, several cases brought in the U.S. courts against individuals and major corporations under the ATS proved to be successful. For example, in one 2007 case, Wang Xiaoning v. Yahoo!, the World Organization for Human Rights USA filed a lawsuit in the U.S. District Court for the Northern District of California against Yahoo! on behalf of Chinese dissidents Wang Xiaoning and Shi Tao (Guao Quingsheng), claiming jurisdiction under the ATS. No. C07-02151 (N.D. Cal. Nov. 13, 2007). According to the complaint, Wang and Shi Tao used Yahoo! accounts to share pro-democracy material, and a Chinese subsidiary of Yahoo! gave the Chinese government identifying information that allowed authorities to identify and arrest them. The Complaint alleges that the plaintiffs were subjected to “torture, cruel, inhuman, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor.” Yahoo! settled the case in November 2007 for an undisclosed amount of money, and it agreed to cover the plaintiff’s legal costs as a part of the settlement. In a statement released after the settlement was made public, Yahoo! said that it would “provide ‘financial, humanitarian and legal support to these families’ and create a separate ‘humanitarian relief fund’ for other dissidents and their families.” See Joint Stipulation of Dismissal, Xiaoning v. Yahoo!, Inc., No. C07-02151 (N.D. Cal. Nov. 13, 2007).

The first U.S. Supreme Court case directly addressing the ATS is the 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The plaintiff in Sosa (Alvarez) brought a claim under the ATS for arbitrary arrest and detention. Alvarez had been indicted in the U.S. for torturing and murdering a Drug Enforcement Administration officer. When the U.S. was unable to secure Alvarez’s extradition, it paid Sosa, a Mexican national, to kidnap Alvarez and bring him into the U.S. Alvarez claimed that his “arrest” by Sosa was arbitrary because the warrant for his arrest only authorized his arrest within the U.S. The U.S. Court of Appeals for the Ninth Circuit held that Alvarez’s abduction constituted arbitrary arrest in violation of international law. However, the Supreme Court reversed, holding that the ATS did not create a cause of action, but instead merely “furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” Sosa v. Alvarez-Machain, 542 U.S. at 720. According to the Sosa decision, such actions must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” Although the Court noted that scope of the ATS is not limited to violations of international law recognized in the 18th century, with respect to recognizing contemporary international norms, the court’s opinion stated that “the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping.” The Court further noted that under the ATS, any cause of action for violations of international norms must be as “specific, universal, and obligatory” as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy in the 18th century. Finally, the Supreme Court, in Sosa, found that the following categories to be actionable under the ATS: torture; cruel, inhuman, or degrading treatment; genocidewar crimescrimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance.

Specifically addressing Alvarez’s claims, the Supreme Court in Sosa concluded that “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 738.  Although not explicitly stated, the Supreme Court’s narrow interpretation of the ATS may have been influenced by a growing uneasiness that the U.S. courts really had no business resolving disputes solely involving foreigners, and that the U.S. taxpayers should not be required to foot the bill for costly court litigation relating to conduct that occurred outside the U.S.

The U.S. courts have almost always recognized that the ATS is an effective vehicle for foreign nationals who have been subjected to torture or other international law violations to pursue their claims, as long as the human rights abuses rise to the level where they may be considered to be in violation of international law. For example, in Kpadeh v. Emmanuel, Charles McArthur Emmanuel (also known as “Chuckie Taylor” or “Taylor Jr.”), the son of Charles Taylor, former President of Liberia, was the commander of the infamously violent Anti-Terrorist Unit (ATU), commonly known in Liberia as the “Demon Forces”. In 2006, U.S. officials arrested Taylor Jr. upon entering the U.S. (via the Miami International Airport) and the Department of Justice later charged him based on torture he committed in Liberia. He was convicted of multiple counts of torture and conspiracy to torture, and was sentenced to 97 years in prison.

The World Organization for Human Rights USA and the Florida International University College of Law then filed a civil suit in the Southern District of Florida on behalf of five of Taylor Jr.’s victims pursuant to the Alien Tort Statute and the Torture Victim Protection Act. See Rufus Kpadeh et al. v. Charles McArthur Emmanuel, No. 09-20050-civ (S.D. Fla. Feb. 5, 2010). The plaintiffs won by default judgment as to liability on all counts, and in February 2010, following trial on damages at which Taylor appeared, the court found Taylor liable to the plaintiffs for damages of over $22 million.  261 F.R.D. 687 (S.D. Fla. 2009).

While the U.S. courts have always recognized the jurisdiction under the ATS against individuals who commit human rights abuses, the liability of corporations under the ATS has been an entirely different matter. Until October 2011, there was a split in the federal circuit courts regarding whether corporations, as opposed to natural people, could be held liable under the ATS. In 2010 the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum Co. that “customary international law has steadfastly rejected the notion of corporate liability for international crimes” and thus that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS”. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010).

The plaintiffs in Kiobel were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law. The plaintiffs claimed that Royal Dutch Shell compelled its Nigerian subsidiary, in cooperation with the Nigerian government, to brutally crush peaceful resistance to aggressive oil development in the Ogoni Niger River Delta. Plaintiffs sought damages under the ATS. The defendants moved to dismiss on two grounds. First, they argued that customary international law itself – not the ATS — provides the rules by which to decide whether conduct violates the law of nations where non-state actors are alleged to have committed the wrong in question. Second, they contended that no norm has ever existed between nations that imposes liability upon corporate actors, as opposed to individuals. Thus, the Second Circuit dismissed the case against Royal Dutch Shell, not because there was not ample evidence indicating that it had been deeply involved in the Nigerian governments efforts to suppress any popular opposition to Shell’s oil exploitation, but because it reached the startling conclusion that there apparently are no international codes of conduct or ethics for corporations.  It has often been said that it is difficult to hold multi-national corporations liable under international law because they neither have a body to be jailed nor a soul to be damned. Yet even I was surprised that a U.S. court would basically grant corporations immunity from liability under the ATS, which is basically what the Second Circuit did in Kiobel.

However, in 2011, the Seventh Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals declined to follow the Second Circuit’s reasoning in Kiobel, all of them ruling that corporate liability was possible under the statute. On April 17, 2013, in Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court issued a decision affirming the Second Circuit Court of Appeals but on different grounds, holding that the ATS did not create jurisdiction for a claim regarding conduct occurring outside the territory of the United States, leaving the question of corporate liability unresolved. 569 U.S. ___(2013).

With its Kiobel decision, the Justice Robert’s Supreme Court thus left its unenviable mark as the most pro-corporate Supreme Court in history, severely restricting the ability of human rights victims to seek redress in U.S. courts against corporations from their commission and complicity in human rights abuses abroad. The plain language of the Alien Tort Statute itself and extensive jurisprudence starting with the trials of Nazi war criminals at Nuremburg had established that fundamental human rights violators may be prosecuted in the courts of all civilized countries, including the United States. With its decision in Kiobel, rogue corporations and executives were given some hope that they could seek “safe haven” for their participation in such human rights abuses, just as Nazi war criminals sought safe haven in Paraguay or Brazil at the end of World War II. The United States was never meant to harbor the enemies of mankind; on the contrary, it was – and hopefully will continue to be – a beacon of home for the downtrodden and oppressed who have been victims of violations of their fundamental human rights.

The Supreme Court again addressed the question of whether there is corporate liability under the ATS in Sarei v. Rio Tinto, a case brought by residents of the island of Bougainville in Papua New Guinea brought suit against multinational mining company Rio Tinto. The lawsuit, which was based on a 1988 revolt against Rio Tinto, alleged that the Papua New Guinea government, using Rio Tinto helicopters and vehicles, killed about 15,000 people in an effort to put down the revolt. On October 25, 2011, the Ninth Circuit Court of Appeals, sitting en banc, issued a divided opinion holding that certain claims against a foreign corporation implicating the conduct of a foreign government on foreign soil could proceed under the ATS. The company filed a petition for a writ of certiorari in the Supreme Court for review of the decision.  On April 22, 2013, the Supreme Court sent the case back to the Ninth Circuit for further consideration in the light of its decision in the Kiobel case, and on July 9, 2013, the U.S. Court of Appeals for the Ninth Circuit dismissed the case, based upon the Kiobel decision.

The U.S. courts have also generally required a fairly high standard of proof for ATS violations. For example, several courts have found that it is not enough for a defendant to just have knowledge of the human rights abuses to be liable under the ATS; a defendant must actively participate or aid and abet such abuses to be held liable, For example, on October 2, 2009, the Court of Appeals for the Second Circuit, in Presbyterian Church of Sudan v. Talisman Energy, Inc., held that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” 582 F.3d 244 (2nd Cir.2009). In this case, which involves allegations against a Canadian oil company concerning its purported assistance to the government in Sudan in the forced movement of civilians residing near oil facilities, the court concluded that “plaintiffs have not established Talisman’s purposeful complicity in human rights abuses.” In reaching that conclusion, the Second Circuit stated that “the standard for imposing accessorial liability under the Alien Tort Statute must be drawn from international law; and that under international law a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses.”

For an ATS case to be successful, therefore, an ATS complaint must set forth specific allegations of a defendant’s participation in the alleged human rights abuses; vague general allegations are insufficient. For example, on August 11, 2009, the Court of Appeals for the Eleventh Circuit issued a decision in Sinaltrainal v. Coca-Cola Company. In this case, plaintiffs alleged that Coca-Cola bottlers in Colombia collaborated with Colombian paramilitary forces in “the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists.” Sinaltrainal union members in Colombia launched the website “killercoke.org” which called for the boycott of Coke.

However, the district court dismissed the Sinaltrainal complaint and the Eleventh Circuit upheld that ruling.  In doing so, the Eleventh Circuit relied upon the Supreme Court’s recent Ashcroft v. Iqbal decision, 556 U.S. 662 (2009), in addressing the adequacy of the complaint, which has must have “facial plausibility” to survive dismissal, and noted that Rule 8 of the Federal Rules of Civil Procedure demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” The Eleventh Circuit then applied the Iqbal standard to plaintiffs’ allegations against Coca-Cola and held that they were insufficient to survive dismissal.

Another major ATS case is Doe v. Unocal, which was filed in September 1996 by four Burmese villagers against Unocal and its parent company, the Union Oil Company of California. In October 1996, another fourteen villagers also brought suit. The suits alleged various human rights violations, including forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline project in Myanmar, formerly Burma. In 2000, the district court dismissed the case on the grounds that Unocal could not be held liable unless Unocal wanted the military to commit abuses, and that plaintiffs had not made this showing. Plaintiffs appealed and ultimately, shortly prior to when the case was to be argued before the Ninth Circuit en banc court.  Doe vUnocal, 395 F.3d 932 (9th Cir. 2002), opinion vacated and rehearing en banc granted, 395 F.3d 978 (9th Cir. 2003). In December 2004, the parties announced that they had reached a tentative settlement. Once the settlement was finalized in March 2005, the appeal was withdrawn and the district court opinion from 2000 was also vacated. According to a joint statement released by the parties, while the specific terms were confidential, “the settlement will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region. These initiatives will provide substantial assistance to people who may have suffered hardships in the region.”

Thus, the Alien Tort Statute, while severely bruised, remains alive and well as to human rights abuses occurring internationally as long as there is some direct connection to the U.S., and where there is strong evidence that the conduct complained of violates customary international law norms. Corporations operating in the U.S. still must think twice before they ignore human rights standards in their insatiable quest to improve their bottom line.

Namibia: Germany’s Forgotten Genocide

Although it took Germany many decades, the German government finally accepted responsibility for the Holocaust, the German’s systematic attempt to annihilate the Jewish population of Europe. More recently, the German Parliament has passed a resolution condemning the forced relocation of the Armenian population by the Ottoman Empire in 1915 as a genocide. Turkey promptly withdrew its ambassador from Berlin, which Germany took as a confirmation of its moral rectitude and sensitivity to human rights

However, before Germany gets carried away with its self-congratulatory righteousness, it must first come to terms with its first genocidal campaign, which took place in Africa many decades before the Jewish Holocaust. During the period from 1904 through 1908, Imperial German forces annihilated over 100,000 members of the Ovaherero and Namaqua tribes in what was then called Southwest Africa (now Namibia). This is now generally recognized as the first genocide of the Twentieth Century, and yet no mention of this dark period in German history can be found in German school textbooks, and few German students are even taught that Germany was one of the great colonial powers occupying substantial portions of sub-Sahara Africa.

Imperial Germany first established its colony in Southwest Africa in 1883, and then signed a treaty with the Chief of the Herero tribe, Kamaharero, on October 21, 1885. Interestingly, the treaty was signed on behalf of Imperial Germany by Heinrich Ernst Goring, the Colonial Governor and father of Nazi Luftwaffe commander Hermann Goring. No sooner than the ink was dry on the treaty documents than the Germany began repeated violations of its terms, including the rape of Herero women and girls by Germans, a crime that the German authorities largely ignored. Under German colonial rule, natives also were routinely used as slave laborers, and their lands and cattle were frequently confiscated and given to German colonists. By 1903, over a quarter of Herero lands (originally approximately 50,000 square miles) had been seized by German colonists. In addition, the confiscation of Herero and Nama lands was expedited following the completion of the Otavi Railway Line running from the South West African coast to the inland German settlements.

In early 1904, having learned of a German plan to further divide up their territory and to establish “reservations” or “concentration camps,” the Herero finally revolted, and armed primarily with spears, killed between 123 and 150 Germans. Led by Chief Samuel Maharero, the Herero surrounded the town of Okahandja and cut links toWindhoek, the colonial capital. Colonial Governor Leutwein, who reported to the Colonial Department of the Prussian Foreign Office, called for urgent assistance, and on June 11, 1904, Lieutenant General Lothar von Trotha, who had been appointed as Supreme Commander of South-West Africa, arrived with an expeditionary force of 14,000 troops. Trotha, who had earned a reputation as an effective and ruthless officer after effectively crushing a similar revolt against German colonial rule in East Africa, made clear his intentions to crush the resistance and to annihilate the Herero and Nama peoples. Prior to the Battle of Waterberg on August 11-12, 1904, where his troops defeated 3000-5000 Herero combatants, General Trotha issued the following proclamation:
I believe that the [Herero] nation as such should be annihilated, or, if this was not possible by tactical measures, have to be expelled from the country…This will be possible if the water-holes from Grootfontein to Gobabis are occupied. The constant movement of our troops will enable us to find the small groups of nation who have moved backwards and destroy them gradually.
After the battle, the pursuing German forces pushed the surviving Herero further into the desert. As the exhausted and dehydrated Herero fell to the ground, German soldiers acting on orders killed men, women, and children mercilessly, even though almost all of them were unarmed and unable to offer any resistance. They were just trying to get away with their cattle. Those who managed to make it into the desert were prevented by German troops from returning.

On October 2, 1904, Trotha issued the following warning:
The Herero nation must now leave the country. If it refuses, I shall compel it to do so with the ‘long tube’ [cannon]. Any Herero found inside the German frontier, with or without a gun or cattle, will be executed. I shall spare neither women nor children. I shall give the order to drive them away and fire on them. Such are my words to the Herero people.
Trotha gave orders that captured Herero males were to be executed, while women and children were to be driven into the desert so that they would die of starvation and thirst. Trotha argued that there was no need to make exceptions for Herero women and children, since these would “infect German troops with their diseases.” Trotha further explained that his campaign to annihilate the Herero people “is and remains the beginning of a racial struggle”. Thereafter, German soldiers regularly raped young Herero women before killing them or letting them die in the desert.
The German general staff was aware of the atrocities that were taking place; its official publication, named Der Kampf,noted that:
This bold enterprise shows up in the most brilliant light the ruthless energy of the German command in pursuing their beaten enemy. No pains, no sacrifices were spared in eliminating the last remnants of enemy resistance. Like a wounded beast the enemy was tracked down from one water-hole to the next, until finally he became the victim of his own environment. The arid Omaheke [desert] was to complete what the German army had begun: the extermination of the Herero nation.

Governor Leutwein objected to Trotha’s “final solution” of the Herero and Nama “problem,” but not on humanitarian grounds. Rather he objected to the extermination of these indigenous peoples on economic grounds, writing that:
I do not concur with those fanatics who want to see the Herero destroyed altogether…I would consider such a move a grave mistake from an economic point of view. We need the Herero as cattle breeders…and especially as labourers.

By the end of 1904, the surviving Herero and Nama peoples remaining in South-West Africa, the majority of whom were women and children, were herded into concentration camps, where they were made available to colonists and private companies as slave laborers, or exploited as human guinea pigs in medical experiments. The most notorious of these camps was at Shark Island on the Atlantic coast, where the German authorities learned many of the lessons that were later employed at Auschwitz and other concentration camps during World War II. All prisoners were first divided into two categories: those who were fit to work and those who were not. For administrative purposes, pre-printed death certificates uniformly gave the cause of death as “death by exhaustion following privation.” Estimates of the mortality rate from disease, exhaustion and malnutrition at Shark Island and other concentration camps were between 45% and 74%. Despite these harsh conditions, any Herero who could still stand were taken outside the camp every day as forced laborers by the German guards, while the sick and dying were left without medical assistance. Shootings, hangings and beatings of the forced laborers were widely reported by eyewitnesses and in the press. One British eyewitness reported that “cartloads of their bodies were every day carted over to the back beach, buried in a few inches of sand at low tide, and as the tide came in the bodies were out, food for the sharks.”

Medical experiments on live prisoners were made by German doctors such as Dr. Bofinger, who injected Herero that were suffering from scurvy with various substances including arsenic and opium. After these “patients” inevitably died, he autopsied the bodies and reported the results. German doctors also experimented with dead body parts from prisoners, including those by Zoologist Leopard Schultzel, who noted that the taking of “body parts from fresh native corpses” was a “welcome addition.” An estimated 300 skulls were sent to Germany for experimentation, in part from concentration camp prisoners. The primary goal of the experimentation was to “prove” the superiority of the “white race” and the “Germanic people.” In October 2011, after three years of talks, the first skulls were returned to Namibia for burial, but the last human remains were not delivered back to Namibia until 2014.

Some researchers have drawn some direct links between the medical experiments by Dr. Eugen Fischer and later medical procedures used during the Nazi Holocaust. For example, Fischer later became chancellor of the University of Berlin, where he taught medicine to Nazi physicians. Otmar Freiherr von Verschuer was a student of Fischer, and Verschuer himself had a prominent pupil, the infamous Dr. Josef Mengele, who experimented on victims at the Auschwitz camp. In addition, Franz Ritter von Epp, who later participated in the liquidation of virtually all Bavarian Jews, took part in the Herero and Nama genocide as well.

Although the Shark Island Concentration Camp and other death camps were finally closed, the surviving Herero were distributed as forced or slave laborers to German settlers. All Herero over the age of seven were forced to wear a metal disc with their labor registration number. The Herero were also prohibited from owning land or cattle, both of which were considered necessary for survival.

In 1985, the United Nations’ Whitaker Report classified the massacres as an attempt to exterminate the Herero and Nama peoples of South-West Africa, and therefore one of the earliest cases of genocide in the 20th century.

In 1998, German President Roman Herzog visited Namibia and met Herero leaders. Chief Munjuku Nguvauva demanded a public apology and compensation, but Herzog stopped short of an apology, only expressing “regret.”

On August 16, 2004, at the 100th anniversary of the start of the genocide, a member of the German government, Heidemarie Wieczorek-Zeul, Germany’s Minister for Economic Development and Cooperation, apologized and expressed grief about the genocide, but the German government quickly made it clear that her speech could not be interpreted as an “official apology” by Germany or a basis for the payment of any compensation, reparations or restitution.
The parallels between the Herero and Nama Genocides and the Holocaust are inescapable. Even the rhetoric used by Trotha eerily presages the language used by Hitler to justify the mass extermination of the Jewish people as an “ethnic cleansing.” Trotha saw the annihilation of the Herero and Nama peoples as serving a higher purpose, as part of the establishment of a new world order. He said: “I destroy the African tribes with streams of blood… Only following this cleansing can something new emerge, which will remain.”

Until Germany formally acknowledges the Herero-Nama Genocide and provides appropriate compensation, this dark stain on German history and its collective psyche cannot be fully atoned for. The return of some skulls is just not a full and adequate response. The German government has had some discussions with representatives of the Namibian government, but even if some settlement is reached between those two countries, this will not provide any satisfaction to the Herero or Nama peoples themselves since they are recognized indigenous groups with identities separate and distinct from the government of Namibia itself. Paramount Chief Vekuii Rukora is the current recognized leader of the Ovaherero in Namibia, but the Ovaherero peoples also have communities in Botswana, South Africa and elsewhere in Africa, as well as an expatriate community in the United States and other countries. Even in Namibia, the Herero and Nama communities are in the distinct minority, and the political parties they support have never played a major role in the Namibian government itself, which has been dominated by one political party since the country gained its independence in 1990. As a result, Chief Rukora and others have asked the law firm of McCallion & Associates LLP to represent them in their search for recognition and justice from Germany.